Orders of the Day

Hon. M. Farnworth: I call committee stage on Bill 38, the Opioid Damages and Health Care Costs Recovery Act.

D. Routley: I ask leave to make an introduction.

Leave granted.

Introductions by Members

D. Routley: Thank you, Members. I’d like the members to help me welcome Clayton Balabanov and Susan Woodhouse, who’ve come to the Legislature today to present to us, some of the members on this side of the House, information on a local ride-share program called Oye.One.

[2:30 p.m.]

Committee of the Whole House

BILL 38 — OPIOID DAMAGES AND
HEALTH CARE COSTS RECOVERY ACT

The House in Committee of the Whole (Section B) on Bill 38; L. Reid in the chair.

The committee met at 2:33 p.m.

Hon. D. Eby: I just wanted to take this opportunity to introduce…. I’m joined by some staff here: to my left, Peter Lawless, counsel with Ministry of Attorney General; Mollie Margetts, behind me, counsel, Ministry of Attorney General; and to my right, Katherine Thiessen-Wale. She is the director of legislation at the Ministry of Health.

I look forward to my critic’s questions on this important legislation for the province.

Sections 1 to 13 inclusive approved.

Schedule approved.

Hon. D. Eby: I just wanted to thank the member opposite. He’s obviously heard our request that the opposition assist us in expediting the passage of this bill, and I very much appreciate his efforts.

Section 14 approved.

Title approved.

Hon. D. Eby: I move the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 2:35 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 38 — OPIOID DAMAGES AND
HEALTH CARE COSTS RECOVERY ACT

Bill 38, Opioid Damages and Health Care Costs Recovery Act, reported complete without amendment, read a third time and passed.

Hon. D. Eby: I call Committee of the Whole on Bill 37, the Land Statutes Amendment Act.

[2:40 p.m.]

Committee of the Whole House

BILL 37 — LAND STATUTES
AMENDMENT ACT, 2018

The House in Committee of the Whole (Section B) on Bill 37; L. Reid in the chair.

The committee met at 2:41 p.m.

On section 1.

J. Rustad: In section 1, there is a reference to changing the process from which a boundary may be considered between British Columbia and Alberta. Of course, that process has to be unanimous.

I’m just curious if the minister could provide some more detail with regards to it. We talked a little bit in second reading about Yoho National Park and how those sorts of things change, but what I’m curious about in particular is the timing of bringing this forward.

This is an issue and that process has been an issue for, obviously, many years, many decades or even longer, so I’m just curious as to why there is a necessity or a need to be considering this at this particular time.

Hon. D. Donaldson: The ministry has known about the need for this amendment for many years but has not had the opportunity to prioritize and present the change until now. This act, from what we understand, has never had amendments to it, so it’s an opportunity to put the amendments in.

I think the member knows this is not about a boundary amendment. It’s the approval process of a resolution of a boundary.

J. Rustad: Yeah, I do recognize that it’s not an amendment unto itself. It is the approval process that it’s going through. I do recognize this is one of those things that has been outstanding for, well, basically since Confederation, in terms of the definition.

Like I say, if the minister could just clarify, the purpose of bringing this thing forward at this particular time just happens to be because there’s legislative space and time to be able it do it. Is that correct?

Hon. D. Donaldson: Yes, that’s correct. The member is right. There’s been changes on the books in 1979, 1982, so this amendment is required in order for us to address those changes. The Boundary Act amendments come at the request of the surveyor general and the Land Title and Survey Authority.

[2:45 p.m.]

Canada has also been working alongside the boundary commissioners from B.C. and Alberta in trying to have the surveyed boundary line confirmed as the official legal boundary at two points along the B.C.-Alberta border. Alberta requires a similar amendment to their boundary act, and Alberta has been in full support of consultation around this process as well.

T. Shypitka: In regards to the process here on the boundary change or the process of it, how would that affect areas such as the Flathead area in the southeast corner of British Columbia? What type of consultation or what kind of form of negotiations or conversations would you have with local government or regional government?

Hon. D. Donaldson: It will have no effect on the Flathead area because this legislation isn’t considering specific boundary changes. It’s around the process, about how boundary changes would be handled.

The Union of B.C. Municipalities was consulted. There were no concerns expressed by them. It’s around changes going from a sinuous boundary, which is a boundary where climate could have an impact on erosion and things like that, to a conventional boundary. So no specific situation in the Flathead. It’s around a process, and UBCM was consulted.

Section 1 approved.

On section 2.

J. Rustad: Section 2. I think we talked a little bit about it in second reading, specifically around the additions to treaty and the change that is put in here. If I’m correct…. Maybe I’ll just ask the minister to clarify that the intent of this section is so that treaties themselves will be supreme, I guess you could say, by order of legislation, with regards to the potential of Crown land being added to treaty lands. Is that correct?

Hon. D. Donaldson: To speak further to the intent of this section, when there’s Crown land that comes into a treaty, under section 50, there are certain exceptions and reservations in favour of the Crown. An example is subsurface rights.

These changes would not…. It just affirms a policy that’s already in place. It was in place under the former government and this government. Those kinds of exceptions and reservations shouldn’t favour the Crown when there’s an addition of Crown land under treaty.

[2:50 p.m.]

What this does is clear up that exception and disapplies section 50, so when lands are added into treaty settlement lands post-treaty, the treaty nation does not have to apply to the government to get a separate order in order to be exempt from section 50. This wasn’t the policy of the previous government, and it’s not the policy of our government to have these encumbrances.

J. Rustad: There’s going to be a number of questions, I think, on this section from some of my colleagues, as well, in the Legislature.

One question, though, that just arose from the minister’s explanation was the reference to subsurface rights, and we’re talking about the transfer of Crown land. I’m curious as to the reference to subsurface rights and, in particular, what this could potentially mean, given that there is discrepancy, obviously, between the Crown and First Nations with regards to subsurface rights, unless it’s clearly laid out in an agreement that has been reached between the Crown and the First Nations. I’m curious as to why that particular reference was added into this description.

Hon. D. Donaldson: I’m going to give an example to help the member understand this section and to help it be clarified for the record. For instance, if there’s a treaty that’s been settled and then, post effective date of that treaty being settled — for instance, this might be a situation with the Maa-nulth — there’s a request for addition of Crown land onto the treaty lands, that land would now still be subject to section 50, unless we make these amendments. For instance, section 50 could be dealing with subsurface rights.

That’s not the policy that the previous government pursued. It’s not the policy that we pursue. However, there is still the possibility, under this legislation, without the amendments, that those kinds of things could be negotiated.

[2:55 p.m.]

As it stands now, if we don’t have any issue with the land being added to treaty and subsurface rights being part of that, then the treaty First Nation still has to undergo the onerous task of requiring a separate order, and that was never the intent of the previous government or this government.

D. Davies: In the same section, of course, looking at treaty…. Is this applying strictly to the modern treaties, or is it looking at historic treaties? Of course, in my riding, we are part of treaty 8, the federal treaty. So does this apply to that as well?

Hon. D. Donaldson: Modern treaties only. Specifically just Maa-nulth and Tsawwassen, because they’re the only ones that have post-effective date terminology in those treaties.

J. Rustad: I believe that my colleague from Saanich North and the Islands would like to add a few questions in here, and then I’ll carry on with some after that.

A. Olsen: I have some similar questions. I believe that they’ve been answered — but just to clarify. As the minister has stated, the intention of the government here is to provide easier access to First Nations that are in the negotiating process or at the end of the negotiating process — access to the mineral rights that are underneath without having to do the section 50 of the Land Act ministerial order.

Does this change start to signify a different approach that this government is taking towards the opportunities for Indigenous communities?

Hon. D. Donaldson: This isn’t a reflection on negotiating processes. It’s simply confirming the existing policy that treaty settlement lands are not subject to section 50 — and also in the overall spirit of trying to realign legislation to reflect government policy around reconciliation.

J. Rustad: I’ve just got one quick question I want to ask before I turn it over to my colleague from Cariboo-Chilcotin.

You mentioned, in particular, that there were two modern treaty nations that this applies to. Maa-nulth, I believe, and Tsawwassen were the two that you mentioned. Are there plans in place to enact some transfer of Crown land for the purpose of additions to reserve for those two treaties?

[3:00 p.m.]

Hon. D. Donaldson: This section in this amendment is contemplated specific to requests that have come forward from the Maa-nulth. I’m sure the member is quite familiar with that because he was the minister at the time, if I am correct, when the Maa-nulth treaty was put into effect.

There are three parcels that the Maa-nulth are looking at that this would apply to. We’re not aware of any other parcels, but that’d be speculation on the future. Specifically, this will apply to those parcels and similar situations that might arise in the future.

J. Rustad: That does raise another interesting question in terms of the timing of doing this. Having spent some time in government, when we bring forward legislation, it’s usually to solve an issue that arose that needed to be dealt with. I guess the question I have regarding this is whether this is the case for this particular piece of this section of this legislation or whether this is similar to section 1, where this is just housekeeping that has been wanted to get done for a while and just hasn’t made it up the legislative calendar until now.

Hon. D. Donaldson: Yes, the Maa-nulth have been waiting for a number of years for this. This kind of amendment is at the request of MIRR. The Maa-nulth could apply through a separate order, a ministry order, to have this done, but this just clears up that process, which was the intent of the policy of the previous government, our government, so they wouldn’t have to go through another order to have this done.

D. Barnett: I have a few questions and some concerns about easements and registration of easements in this section. It doesn’t really identify them. To the fact that, from what I can understand…. Correct me if I’m wrong, Minister. I would appreciate that.

Where there are registered roads, rights-of-way, hydro, gas, pipelines registered on title now, should a registration on title be given to First Nations through interim agreements with no public consultation, who is going to notify the people who have these easements on this particular land that this Crown land is going to change title as part of either a treaty or an interim agreement when there’s no public consultation out there now as to what is happening on the land base with negotiations?

Hon. D. Donaldson: I believe what the member is referring to is part of an acquisition and planning process that’s outside of this amendment. When she talks about consultation, that’s something that happens outside the amendment that we’re discussing right now.

[3:05 p.m.]

I want to assure her that these decisions that are referred to in this section are still discretionary at the end of the day. If an easement is being considered, then it’s something that’s discretionary between the government and how that gets transferred to a First Nation. That’s something that’s still in effect. But the acquisition and planning process around an easement, for instance, is something that’s negotiated between parties. It’s not specifically related to the amendment in this section.

J. Rustad: Just one bit, a last question of clarity, I guess, on this act.

Some of the concerns that are always raised when land is considered for transfer to reserves or transfer to treaty is the issue of access and the issue, of course, of engagement or consultation through the process. For example, when treaties are negotiated, at least when I was part of the government, in terms of negotiating treaties, the issue would be…. Access would never have been isolated or the properties wouldn’t have been cut off, whether it be Crown land or whether it be private land or these types of things. Access would always have been assured through the process of transfer of property, and there would be appropriate engagement with people that might have an interest associated with it.

I’m just asking specifically if this proposed section — I don’t believe it would, but it’s worth asking — would change any of that process or potentially create any sorts of challenges for people that may be concerned about access, through a process that might see an addition of Crown land to a treaty.

Hon. D. Donaldson: Once lands are added to a treaty, those lands are governed by the substance of the treaty. So the member is right. That’s how the treaty is worded, and the access issues that he talked about. That’s the substance of the treaty. So that would apply to the lands being added that we’re contemplating in this part of the legislation.

J. Rustad: I just want to give my colleague a moment. There’s an issue that…. She’s just looking back at that little section that she wants to confirm to be able to ask. That being the case, I’ll just ask one other quick question around this.

The minister has mentioned the two treaties. I’m just wondering: would this also apply for the Nisga’a final agreement? Would it also apply for Sliammon or any of the other future treaty agreements that, obviously, we’re hoping to be able to see reached and finalized?

Hon. D. Donaldson: The Nisga’a and Sliammon treaty already disapply section 50, so that’s not an issue.

The member mentioned future treaties. If this bill passes through the Legislature, this will apply in the future, and we won’t need to negotiate, on every treaty, this disapplication of section 50.

Section 2 approved.

On section 3.

[3:10 p.m.]

J. Rustad: This is now going into the meat, obviously, of this piece of legislation that’s being brought forward, with regards to the electronic components or the e-filing. There are a number of broad questions — I’m hoping that the minister might provide us with a little bit of latitude — that need some clarity around some technical details but don’t necessarily reflect in any particular section. With the minister’s discretion, I’m hoping we’ll be able to canvass some of those types of things.

With that, just looking over at my colleague from Cariboo-Chilcotin to see if she’s ready. If not, then perhaps I’ll ask a basic question.

In second reading, there was the issue the minister had mentioned with regards to the great care associated with digital security. This comes up later in the sections in here, the concern around identity theft. Specifically, I’d ask and I raise the issue about rural residents, people that may not have access to being able to file electronically. Can the existing process of paper filing actually be done? Or is the intent here to move everybody over to electronic filing, and the paper filing would no longer be available?

Hon. D. Donaldson: The paper copy system that exists now is not going to be eliminated for the time being. We’re going to have a transition period, and it’s going to take a while. It’ll be in the foreseeable future.

You know, I’m quite attuned, as is the member from Nechako, around the rural areas that might not have the ability to do the electronic filing or the electronic signatures, and secondly, it might not be their preferred way of communicating. Oftentimes, I like paper too. Maybe it’s a tactile thing, and it’s probably why I have so many binders on the shelves in my office. But yes, a paper copy system will still be in place for a while as we do a transition period. We’re not going to have a hard stop and eliminate one system and have electronic only.

As far as the opening remarks to section 3 that the member had, definitely I’m amenable to having any kinds of conversations just to provide clarity under this section. As well, if the questions don’t actually apply to this act, I’ll let the members know.

D. Barnett: I understand, from what you’ve just said, that there still will be paper title issues allowed. My question is: will you be keeping the existing land title offices, or will the offices of the land title shrink and those around rural British Columbia disappear?

Hon. D. Donaldson: As I said, I’ll endeavour to have a lot of leeway in the questioning of this act. But the short answer to the member’s question is no.

J. Rustad: One of the general questions that I thought would be an interesting question to ask about, particularly, is…. Various covenants or other types of issues associated with a particular title of the property, whether it be roads or power lines or access to other properties or these types of things…. Often those types of issues are very complex.

[3:15 p.m.]

Often those sorts of issues sometimes can’t even be caught by lawyers because it’s buried so deep into various processes, whether it’s gazetted or other types of issues associated with it. So I’m curious with the move towards electronic filing, which I support. I mean, I think it’s great to be able to do this. But doesn’t this create a risk that potential purchasers or transferors of property miss important information associated with a title that sometimes can only be found through a diligent search or components that come out of a lawyer’s office?

There are many components further on down about refiling or errors or penalties — these kinds of things. We’ll get into talking about those when we go to those sections. But I’m curious, having obviously been involved in a number of land transfers myself personally, about how this sort of issue may be addressed if we’re encouraging everybody to move away from the utilization of professional services.

Hon. D. Donaldson: This amendment and the move to provide better service through electronic filing is really intended for the more straightforward types of transactions where there’s been a change of address or a change of name on title, things that don’t involve the complexities that the member pointed out. Those more complex transactions will likely still require a lawyer. People would be wanting to engage one when it comes to those kinds of transactions. We’re really contemplating that these changes will be more applicable for the straightforward transactions.

J. Rustad: There are a number of other questions, I think, that will come up. They might be of a more general nature, but we’ll try to catch them section by section as we go forward through the bill, if that’s okay with the minister.

With that, I’ve got no other questions on section 3.

Section 3 approved.

On section 4.

J. Rustad: On section 4, the definition of “electronic signature.” It’s pretty simple and straightforward. What I’m curious about…. Obviously, there is a large process within government, across many ministries, across a number of things. Does this actually change the definition of electronic signature in any way for any additional legislation or any other additional processes that carry on within government? Or is this simply a separate act, and if future acts are looking at electronic filing, they would also need the same type of definition?

Hon. D. Donaldson: Yeah, the changes in front of us under Bill 37 would only apply to the Land Act and Land Title Act applications.

[3:20 p.m.]

J. Rustad: More of a general question, I guess, not specific to this. So if the minister can’t answer this, I understand that. Why wasn’t, I guess, a broader perspective thought about? This is a great step in terms of being able to streamline and do things digitally, but obviously, there will be issues and potential conflicts between definitions or processes with other legislation.

Is that something that was contemplated when this legislation was written? Or is that something that would have to be considered as a streamlining further down the road as other legislation starts moving in this direction?

Hon. D. Donaldson: This definition of “electronic signature” would apply to other legislation that is connected to the Land Title Act and the Land Act, such as the Property Transfer Tax Act. Those are some of the amendments you’ll see in the legislation.

It explores and gives the surveyor general the flexibility for different types of electronic signatures to be developed, including the use of the B.C. Services Card. So the kinds of amendments that are being considered here, and innovations, can definitely be something that would be used in the future in other legislation as well.

Sections 4 to 9 inclusive approved.

On section 10.

J. Rustad: It’s sort of a general question I just want to throw in there. It’s not because of this particular section, but it just happens to be where I placed a note on the bill to ask the question.

During second reading debate, there was a discussion with regards to the security and the protection of information. In particular, if there was a person who was fleeing violence or another type of situation where they wanted to be able to have their information protected, this would assist with that. Now, I was a little curious about that when it came up as part of second reading debate.

More importantly, what I’m looking at is that often if you’re looking around at property — you’re looking at various areas, particularly in rural areas or around a lake or otherwise — there may be a lot that you want to try to track down the owner of because you want to talk to them about perhaps making an offer or doing a transaction or these types of things. Or maybe you’ve got an issue. You want to build a fence or otherwise, and you have to sometimes track down who the owner is.

With the provisions that have been thought about in terms of security within this piece of legislation, will this change, in any way, the ability to be able to do a title search within the land titles so that you may be able to track down who that owner is and be able to contact them for any type of query or other type of issue that may be arising?

[3:25 p.m.]

Hon. D. Donaldson: This section, section 10, actually sets out offences that apply under the amendments. The member is asking a question that applies to sections further on, but I’ll answer it now. Then when we get to those sections, we’ll have dealt with it already.

Title searches can still occur if a person knows the legal lot description. I understand what the member is getting at, especially in rural areas. If you know the lot description, you can still do a title search to track down the owner.

What this legislation prevents is that if someone just wants to go on a phishing trip and plug in a name and find out properties, that is going to be restricted under this legislation. There have been cases where people, for instance — and this is what I referenced in second reading — might be fleeing a situation of domestic abuse and don’t want that ease of information at somebody’s fingertips, to find out where they might be living or a property they might own and live at now.

There still will be some ability under this legislation, when we get to further sections, to restrict the title searches by name, in that instance. That’s a whole section that we’re going to deal with later around how that applies. Right now, if you know the legal description of the property as it is now, you can still use title search to track down and find the owner.

J. Rustad: I understand the need in terms of the general public to be able to restrict the ability for things like a search, a query or a title search associated with a name. But would realtors or lawyers or others that may require to be able to do that as part of being able to provide their functions have the ability to be able to carry on with that type of a search, or are they going to be limited to just having to go after the actual title to get a particular name?

I’m wondering if this impacts, in any way, the professions of a realtor or a lawyer or others that may require to utilize the land title process.

Hon. D. Donaldson: Again, I don’t believe these are specific under section 10. But when we get to the specific sections, we’ll know that we’ve addressed this already.

The amendment in Bill 37 enables regulation, and those classes of professionals will be set by regulation — for in­stance, lawyers, financial institutions, professionals involved in real estate. That kind of public policy will be set by regulation, and those are the kinds of people that will still be able to access as it is now.

J. Rustad: Thank you, once again, for being able to address questions of a more specific or general nature that are out of order. I promise to not ask the same question when we get to the appropriate section.

Under section 10, part of this section looks at a person that commits an offence. The person signs an electronic plan using electronic signatures of another person or permits an electronic signatures of a person to be used by another person to sign an electronic plan.

[3:30 p.m.]

If you’re in a situation where somebody has managed to steal the identity of an individual or breach other types of security and commits an offence under this, is the onus on the individual to prove that somebody did that illegally and used their name inappropriately? Or is the onus on the land registries office to track that down before a potential offence is laid against an individual?

[R. Chouhan in the chair.]

Hon. D. Donaldson: This refers to offences around the application of an e-signature. There could be a couple of scenarios, as the member has pointed out. Perhaps somebody is deliberately misapplying an e-signature, or perhaps there has been a case of theft and somebody else is using that e-signature inappropriately. Regardless, this section deals with offences. It doesn’t matter how it comes about. It’s the veracity of the e-signature. That would be up to the registrar to catch in the process.

J. Rustad: Just to clarify, if I remember correctly, if I’ve heard correctly from what the minister just said, it would be incumbent upon the registrar to track down who it was before a charge was particularly laid, if there’s found to be an error. What I mean by that is: obviously, if there’s identity theft, sometimes it’s almost virtually impossible in the digital world to actually be able to identify who it was that actually did that.

What I’m just concerned about is if you end up in a situation where somebody is being accused, or a charge is being brought forward to an individual that had no knowledge or understanding that this was even going on…. Obviously, if they were in a situation where they had to try to track it down, it would be very difficult for them to be able to reverse or to change that charge.

Similarly, if somebody intentionally did an activity and then made the claim that it was being done through identity theft and they actually didn’t do this, how would you be able to determine whether or not that individual should be charged? That’s the reason for the questioning. Like I say, I fully support the idea of going to the digital world, but it raises all kinds of interesting questions in terms of how process will be handled.

[3:35 p.m.]

Hon. D. Donaldson: I think what we’re looking at is that the process would be the same as it is now. If the registrar learns of a breach, they will cooperate with the law enforcement authorities.

I believe what the member is getting at is that there could be an introduction of another element of risk when it’s e-signature rather than the system as it is now, where there are hard-copy signatures. That’s where we get into — and the other sections will describe this — a two-factor authentication, where a person would have to have a card and a PIN number. So we’ll reduce that risk of the possibility of, I guess you’d say, fraudulent signatures being applied through increasing the authenticity process with the two factors.

Section 10 approved.

On section 11.

A. Weaver: My colleague the member for Saanich North and the Islands is in a meeting right now. This is part of the problem when you’re a small caucus and you’re point on a file. There are so many files that I’m stepping in on. I’m asking a series of three or four questions on this section. They’re not onerous.

The first question is this: is the e-filing system that’s being introduced being built specifically for B.C., or is it based on a pre-existing format?

Hon. D. Donaldson: Thank you for the question. It’s an e-filing specifically for B.C. land title. It’s not built off any other system.

A. Weaver: Further on this, my question would be: this e-filing system — how does it resemble other e-filing systems in other jurisdictions? Is it B.C. built, B.C. made, by B.C. companies, or is it based off some third-party software? If there could be some more detailed analysis, a description of how and where this e-filing system comes from.

Hon. D. Donaldson: The software is built by a B.C. company owned by the Land Title and Survey Authority.

A. Weaver: That’s very helpful. The third question is: I’m wondering to what extent safeguards will be built in with respect to protecting information — in particular, personal information and sensitive data. I do understand that some answer to this was done in previous sections, but I’m wondering if there are specific examples that have been given in the context of the software built in B.C. by the subsidiary or corporation owned by land titles.

Hon. D. Donaldson: Yes. These electronic filing changes do not require any new personal information to be provided and no sensitive information, such as a SIN number or bank account information. There will be a requirement for a credit card if there’s a fee charged, but the standard protocols are in place around that.

[3:40 p.m.]

A. Weaver: The final question is: to what extent will there be an educational component to help people actually access this filing system?

Hon. D. Donaldson: The Land Title and Survey Authority is working with the Continuing Legal Education Society to update practice manuals and train legal practitioners. There’s also a section of the binder, which I haven’t even read yet, around a whole communications plan.

D. Barnett: In section 11, it says it is “amended in the definition of ‘true copy’ by repealing paragraph (b) and substituting the following” — an exact copy.

I know what a true copy is. Could you explain to me what the difference between a true copy and an exact copy is and why we’re changing the definition?

Hon. D. Donaldson: Currently a true copy is a paper copy. The change makes it that it can be an exact electronic copy or a paper copy.

Sections 11 and 12 approved.

On section 13.

D. Barnett: Section 41 is amended in the definition of “instrument” by striking out “a true copy…” and substituting it with “an execution copy….” Could you explain to me the differential between the two of them and why the change?

Hon. D. Donaldson: This is a matter of clarification. Previously, a “true copy” was being used as the terminology for at least three different things. Now we’re defining and making sure that people know that an “execution copy” is when there’s a witness required. When there’s a witness signature required, that’s the definition of an execution copy.

Section 13 approved.

On section 14.

[3:45 p.m.]

D. Barnett: Under Section 14, section 69(1) says: “Before a survey is made, the Surveyor General, subject to conditions the Surveyor General considers necessary, may allow the survey to be posted by setting, at proper intervals, monuments of a specified permanent character.”

Could you please explain to me what that means? Now, I know that when a survey is done, we have certain types of survey post pins that are there permanently. Does this mean there is some change to the way surveys are going to be done and what the survey characters are going to be?

Hon. D. Donaldson: This one is, I believe, pretty straightforward. It’s not changing how surveys are done. It’s expanding the circumstances where a block outline survey can be done, which can then be finalized through the more secure methods that the member pointed out. It helps developers or landowners resurvey and reset destroyed markers and reduce the risk of development projects being delayed because of the need to re-establish markers. It enables the surveyor general to expand the circumstances where those kinds of block outline surveys can be used.

Sections 14 to 17 inclusive approved.

On section 18.

J. Rustad: If I am reading this correctly, section 18 is a rather large section, so there might be a number of questions that come up with regard to this section by myself and some of my colleagues. I’ll start with one question to the minister. Under section 18(168.2)(2), it says: “…in relation to a document, a person may not submit the document other than electronically.” My understanding of this seems to be that if you start the electronic process, you are forced to continue utilizing the electronic process. That’s my reading of it.

What’s the intent of that particular section of this piece of legislation?

Hon. D. Donaldson: Under subsection 168.2(2), the registrar has the ability to decide if it is appropriate, in the circumstances, to accept a document.

[3:50 p.m.]

If you start the process electronically and then there’s some issue or problem, some hardship, then the registrar has the ability to make the exception and change the process so that the person could continue without e-filing.

J. Rustad: If I understand what the minister has just said, there is some discretion to be able to allow for the process to move.

I’m just curious, because the language in here seems to be: “…a person may not submit the document other than electronically unless a registrar decides.” I guess that does leave it up to the discretion of the registrar, but at least, I guess, there are some assurances there that the process, if there is a hiccup along the way, might be able to be carried on without too much due process or due challenge or issues.

Further in that section, under, I guess it is, subsection 168.2(3)(b), there is an interesting comment in here that I didn’t notice anything before, which is…. Under (b), it says: “in the case of an application to cancel the registration of a charge, that the applicant….” And then it carries on.

The question that arose from that is: is there a fee or a charge that will be applied to the ability to file electronically? And if there is, and it seems to be that there is, is that fee similar to that which would be undertaken under filing a paper copy through the existing process? How will that be handled?

Hon. D. Donaldson: I commend the member for the detail in which he is looking at these words. I’m able to advise him that, in this instance, the use of the word “charge” is a technical term in the land title system and does not refer to a fee.

J. Rustad: I appreciate that. I suspected that that was the case, but it did raise the question as to whether or not there would be an expense or a charge associated with utilizing the e-filing system — some sort of fee.

I guess more of a broad question, then, not necessarily to this particular section, is whether or not this process will have a fee. And I imagine it will. I mean, most times when you utilize the service, there are fees associated with it. But whether or not that fee would be similar to or different from the existing process, if there is one….

Hon. D. Donaldson: There will be no changes to fees.

J. Rustad: My colleagues from the Third Party, as well as my other colleagues, have expressed an interest in subsection 168.22(1)(b), which says: “(1) The director may direct that a document,” and under (b), “may only be submitted electronically.”

I’m wondering if the minister could provide a bit of an explanation as to what that language is referring to and what is meant by this particular section.

Hon. D. Donaldson: The wording is: “The director may direct that a document…may only be submitted electronically.”

[3:55 p.m.]

That’s only there so that the director has the ability to direct which documents will be submitted electronically. As we said before, the director will still have the discretion to allow for paper copies to be submitted as well.

A. Olsen: I guess my concern with this clause is that we’re trying to expand the access to the system. To have a clause like this feels like it’s limiting the access or potentially has the impact of limiting the access. I appreciate the minister’s response that the director has the ability to direct that a document be also submitted in a paper copy, but that doesn’t necessarily mean that that’s the case.

I can think of all sorts of different examples of where British Columbians don’t have access to be able to submit a document electronically. They don’t have access to the Internet. They don’t have access to a computer or a device. One of the things that I and my constituency office — and I think probably all the members in this place and their constituency offices — deal with all the time is language like this that seemingly makes it increasingly difficult for British Columbians to be able to do the business that they need. That’s the reason why they come to our offices.

I guess, for me, I just need to be…. Not convinced, but I need to feel confident that this isn’t going to unnecessarily cause undue duress on British Columbians by having this clause in here and then creating a bureaucratic backlog where they’re going to then have to request to have a paper copy and explain why that paper copy needs to be a paper copy and not an electronic copy. For me, that’s the concern that I have around 168.22(b).

Hon. D. Donaldson: Just for the record, 95 percent of documents filed to the land titles office are filed electronically right now, and 5 percent aren’t. But I take the member’s point that there are situations where people don’t have access. Maybe that’s representing the 5 percent that don’t have the access or feel comfortable with the e-filing.

This is not changing the current situation. I’ll point out that in 168.22, it doesn’t use the word “must.” It says “may direct” and “may.” Those are words that leave room for discretion. That discretion is under subsection 168.2(2) that says: “…a person may not submit the document other than electronically unless a registrar decides that it is appropriate in the circumstance to accept the document.” It gives the registrar that discretion in the cases where people aren’t able to access broadband, if it’s required, or whatever else electronic filing needs technology-wise.

The intent is not to push people who are already challenged technically because of their geographic location or their familiarity with technology to the sidelines. It’s to improve the electronic filing system and still allow for the discretion of the director to accept paper copies as well.

[4:00 p.m.]

A. Olsen: Ironically, I’ve been kind of sharing the duties on the committee stage of this bill with my colleague from Oak Bay–Gordon Head because I was in one of the meeting rooms meeting with another minister on connectivity and on a program which currently excludes Galiano Island and Mayne Island within my riding. I know that this is not an unfamiliar scenario in many communities across the province, as we work very diligently to overcome the difficulties of connectivity in our vast province.

As it turns out, those residents, my constituents on those two islands, are not gaining access at this stage — we’re working on it — to connectivity, which will allow them to do it. So I’m somewhat sensitive today, at this point in time.

I guess, can the minister provide an example of a document that would only be submitted electronically, like an example of one of these documents that would only be acceptable in an electronic form?

Hon. D. Donaldson: Well, we’re not aware of a document that can only be filed electronically. We’re looking into that. But the point is that, as I said, 95 percent of the documents are filed electronically. Five percent aren’t. The intent of this part of the legislation is similar to what was in legislation before, in that people can still file electronically and through a paper copy.

A. Olsen: I guess, for me, I’m quite challenged by this, I have to say. It seemingly is a small item. It seemingly is an item in which…. Why not give the director the ability to make this decision? Frankly, I have run into situations not dissimilar to clauses like this, which have my constituents tied in knots because a director or a member within the public service has made a decision. I can’t, frankly, understand what condition would compel somebody to say only an electronic copy — unless it can be demonstrated to me that there is a reason for us to say that we give the power to someone to say only an electronic copy is acceptable.

There is no question that we need to be moving towards a scenario in which we are giving people expanded options to submit documentation. I am significantly challenged in the notion of expanding it through this amendment and then also giving a clause to say that we’re going to give the power to someone to say, “No, actually you can only do it through this,” which could have a substantial impact on our constituents in the filing.

I think that it needs to be more compelling, frankly, than where we’re at right now — that we would then limit British Columbians’ ability to submit a paper copy, if that was the only way that they were able to do it, and somebody was saying: “No, you have to do this by electronic form.”

[4:05 p.m.]

Is there nothing more compelling? Because I’m troubled to support this section going forward unamended, to just remove that section (b). Frankly, unless I can have a compelling argument that it absolutely needs to be there, I don’t know why we would move it forward.

Hon. D. Donaldson: The language here is modelled off the current statute. Actually, the statute is 168.111(1)(b). It states in there that the director has the ability to direct that documents only be submitted electronically to the land title office. This is just reformatting, and it’s modelled on the existing wording in the existing legislation. It’s something that’s been in effect for as long as the Land Title Act has been in the legislation, since 1999. We haven’t had instances of what the member is describing.

Again, the wording is that the director may direct a person to submit electronically. It’s the same as the previous language. But if they can’t, a person could still apply on paper, and those paper forms will still be available. The intent, I suppose, is to provide better service and a faster turnaround time. When the land title office is receiving things electronically, it adds to turning things around faster. However, they’re still able to deal with paper, and that’s still a process that can be undertaken by people.

[4:10 p.m.]

A. Olsen: I thank the minister for his response. I mean, I think that we’re…. Thank you for the response that this has been, I guess, in the legislation, or it’s being modelled after the way it’s been. But frankly, I don’t feel like I’ve been compelled to think that this is necessary language.

In fact, if you look at the language: “The director may direct that a document (a) may be submitted electronically, or (b) may only be submitted electronically….” To me, I think that it’s actually covered off paper copies. I think both sides are covered off through the first clause, in reading it, and the second clause is actually only limiting it. I’d be prepared to move a friendly amendment to strike section (b) from the clause so it just reads 168.22(1)(a).

J. Rustad: While the minister considers this, I would request if we can take a brief recess.

The Chair: The committee will recess for ten minutes.

The committee recessed from 4:11 p.m. to 4:26 p.m.

[R. Chouhan in the chair.]

Hon. D. Donaldson: Thank you for the break.

I’m going to suggest that we allow members to ask questions on other parts of section 18. I understand there’s just a few more minutes of that. Then I’ll get back to the issue that the member for Saanich North and the Islands has raised.

D. Barnett: Designates, 168.4. It says a director may designate classes of individuals as authorized to certify documents under this division. A designation under (1) may be restricted to one or more classes of documents or interests.

Could you please explain “designate classes of individuals” — whom these people are?

Hon. D. Donaldson: These designate classes of individuals are, for example, lawyers or notaries or land surveyors — professionals who can certify the documents.

J. Rustad: In section 18, 168.51, I believe it is, it talks about if a digital copy is different from a hard copy. It seems to say that the digital copy is considered to be the one that would prevail. I’m a little curious about that because often, in the world of digital, sometimes you can get little things that’ll go on versus an intentional hard copy that often is the source of the digital. I’m just curious as to why that would be the case.

Hon. D. Donaldson: In response to that question, this 168.51 is to ensure that only documents certified by the registrar are considered the true copy.

[4:30 p.m.]

J. Rustad: Moving on, the rest of the section seems to be…. I mean, there’s a few minor little questions.

One that sort of stands out as just a quick question is, of course, under 168.58, which is the disposal of electronic documents. There’s obviously quite a detailed process. I think the member probably sat on a committee at one point, as I did, that looked into the disposal of documents and the whole process around that. It has also been updated for digital technology and digital disposal.

I’m just curious as to this particular section and the need for it — given the details in the archives with the process of retaining or deleting records — and whether or not it actually lines up and is the same as the details or rules associated with the archives.

Hon. D. Donaldson: There’s no change to the substance or process of how disposal occurs now. It’s just been consolidated. As an example, sections 168.7 and 168.77 provide that the registrar may delete an application, instrument or plan and any supporting documents in the event that these documents are void due to their withdrawal or refusal — again, no change to substance or process.

J. Rustad: One final question with regard to this section. That is 168.7. Once again, it comes under the “Offences.” I touched on this earlier, with regard to offences. I often find in the digital world that, particularly when you’re writing emails or other things, you sometimes hit the send button a little early. Sometimes information could be reviewed a little earlier, before it gets submitted. I’m a little concerned, obviously, that there are provisions for making submissions of changes should you find that some of the information has been submitted that may not be accurate or correct.

I’m just wondering whether there is latitude within the offences, if information that is submitted is found to be in error — an opportunity for the person to be able to fix that, as opposed to having to go through the process of somebody proceeding with the potential of an offence, even though it may have been done accidentally.

Hon. D. Donaldson: Yes, exactly. That situation is covered in the language, where it says: “if the person wilfully makes a false certification”. So there is the ability if it’s an error.

We have consulted with the drafters. In response to the member for Saanich North and the Islands’ well-considered comments on some of the language in the section we were referring to, which was 168.22, what we’d like is some time for drafters to look at the suggestions that the member has made, especially the implications on other sections of the act.

In order to give time for that to happen, what I’m going to do is I’m going to move that…. Then what we would do is bring the bill back, once those drafters have had a chance to look at the suggestions. What I’m going to do is move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 4:35 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Hon. M. Farnworth: I call committee stage, Bill 36, the Miscellaneous Statutes Amendment Act.

Committee of the Whole House

BILL 36 — MISCELLANEOUS STATUTES
AMENDMENT ACT (No. 3), 2018

The House in Committee of the Whole (Section B) on Bill 36; L. Reid in the chair.

The committee met at 4:40 p.m.

Hon. M. Mark: Before we begin, I’d like to acknowledge my staff who are with me — Assistant Deputy Minister Tony Loughran and Rachel Franklin, the director for legislation.

On section 1.

S. Cadieux: I’d just like to go back. I listened to the second reading debate of the bill yesterday and heard a number of members reference the fact that this is an important change because it was going to allow members of faculty and staff to sit on boards. I would just like to confirm or have the minister confirm that, in fact, faculty and staff are not precluded today from sitting on the boards of institutions. In fact, they have a statutory place on those boards.

In fact, the section of the College and Institute Act, the Royal Roads University Act and the University Act…. They’re all the same. The section being repealed says:

“A person is not eligible to be or to remain a member of the board if the person is (a) an employee of the institution, and (b) a voting member of the executive body of, or an officer of, an instructional, administrative or other staff association of the institution who has the responsibility, or joint responsibility with others, to (i) negotiate with the board, on behalf of the instructional, administrative or other staff association of that institution, the terms and conditions of service of members of that association, or (ii) adjudicate disputes regarding members of the instructional, administrative or other staff association of that institution.”

I’d just like, for the record, for the minister to clarify that that is, in fact, the case. Members of faculty and staff are currently permitted to sit on the boards of institutions, and in fact, there is statutory provision for elected members of those associations to sit.

Hon. M. Mark: I’d like to thank the member for the question. Of course, there are provisions in the College and Institute Act that allow a member of faculty of an institution, and elected by the faculty, to sit on a board. That can be a support staff or elected by the support staff, and under the University Act, section 19, two faculty members elected by the faculty staff. There are provisions…. There’s one person elected by and from the employees of the university who are not faculty members. Under the Royal Roads University Act, section 5, a professor elected by professors can be on a board, or an employee who is not a professor, elected by the employees of the university who are not professors.

I’m just leaning to the section that we are repealing. It’s the end that we are saying excludes a pool of people that could potentially sit on boards, and it’s that exclusion that we are amending today.

S. Cadieux: Thank you for that clarification, Minister.

I heard yesterday from the minister that the end goal here was to add value to the post-secondary ecosystem, as the minister likes to say, adding diversity and balance through making this change.

[4:45 p.m.]

I’ll ask two questions in this question. I think they flow together. How exactly does making this change assist with filling out board competencies on any of the boards, things like expertise in law, finance, governance, communications — the sorts of things, skill sets, that are looked to, to fill out the complement of a board? What is not able to be done today for any of the goals around diversity and balance that the minister has expressed, except where diversity means individuals who happen to also be members of the staff or faculty and also hold voting or administrative roles with their associations?

Hon. M. Mark: I guess I just want to share with the member that when I was looking at this act, I was trying to find evidence of why the group or the pool of people was excluded in the first place. I couldn’t really find any evidence. I think there was an allusion to maybe one individual, one institution, but there was no evidence that said that this group or pool of stakeholders were potentially not adding value to the board composition.

To the member opposite, with respect to board competencies, there are 25 public post-secondary institutions. All of those competencies are looked for — lawyers, professional accountants, architects, you name it. We are looking for the diversity that represents the community to serve in the best interests of the institution and the community that they serve.

When you exclude a pool of people, you’re then excluding the possibility of having that diversity at the table. As I stated earlier, when we looked at this bill, I couldn’t find any evidence, solid evidence, that gives reason to there being a systemic problem of individuals…. That is in the end part of the act that we’re amending, which is not bringing that diversity and balance to the board.

S. Cadieux: To the minister: I guess I’m a bit confused because, as we’ve already heard from the minister, the reality is that faculty members and staff members of institutions already sit on the boards. So representatives of faculty and staff already have a place at the table, certainly, to express opinions and such related to that.

Not surprisingly, there are lots of other people who wouldn’t be considered for any board appointment at a given time, given a lack of experience or expertise in an area or what have you. There are all sorts of reasons somebody could be disqualified at any given time from sitting on a board, and that’s at the discretion of the appointing body, which, for the majority of seats on those boards, is the minister.

I guess I’m not entirely clear after yesterday. The minister herself expressed that she was proud to have appointed First Nations representation to each of the 25 boards. It’s absolutely laudable. It’s a good thing. I am in full support. I see that as an example of creating balance and diversity, and it was done without repealing this section.

Can the minister point to any circumstance in any of the post-secondary institutions where they have not been able to find enough qualified candidates to fill the board vacancies?

[4:50 p.m.]

Hon. M. Mark: The question from the member is: how are we limiting, if we have representation of staff and faculty? That is true — that we are limiting the elected staff and faculty. So that prohibits the pool. It shrinks the pool of people that can be represented on the board.

As I raised earlier…. I’m not sure. I don’t have the evidence of how problematic this pool was, so I can’t answer your question of who was so problematic that we had to change the law. Not us — the former government changed the law in 2011 to prohibit this group of people. I don’t have any evidence to show that that group of people, in their elected status, was problematic to the board.

The amendments that were made in 2011 added other provisions to address things like conflict of interest, which I’d like to raise. The member just mentioned the point of First Nation. I’m First Nations. I appointed First Nations people. Does that put me in a conflict of interest?

Conflict of interest is a very interesting topic. It’s a very delicate topic. But to the question of who we limited out of the pool, the amendments to the act in 2011 prohibited the pool of elected faculty and staff to be represented on the board. They could bring a variety of experiences.

When I look back at the Hansard in 2011, hearing from those that said they’ve served their faculty, they’ve served their community, they’ve served the institutions that they loved for many years, but that they might, at one point, decide to stand up for elected office — like we have all done in these chambers — and that prohibits them from sitting on the board.

I’m asking as many questions as you are.

S. Cadieux: Is there anything in the legislation, as it stands today, that prohibits a former employee of an institution who formerly was a voting member of the executive body or an officer that had the obligation to negotiate or adjudicate disputes? Is there anything preventing someone who formerly held that from being appointed?

Hon. M. Mark: No.

S. Cadieux: Therefore, the argument could be made, I would say, that for a period of time an individual, while they hold a certain office, may be excluded — as was the intention of this section that is being proposed to be repealed. In its insertion, the intention was to clarify and help prevent conflicts from arising. So for a short period of time somebody might not be able to serve. That wouldn’t prevent them from serving once they no longer held that voting status on an association. I would argue that, perhaps, being overly concerned with this section is not necessary.

I’ll move on a little bit. Yesterday the minister said that…. It’s not an exact quote, but something to the effect that we are doing this because we need the right leadership at the table. Does that mean that the current appointees are not qualified or that faculty and staff, elected representation, are not qualified? Could the minister please explain what the right leadership is?

Hon. M. Mark: I would say balance and diverse leadership at all of the boards of institutions. As an example, when you bring in and you appoint members that are from Indigenous communities that haven’t typically been represented, that that is strengthening leadership.

The word “right” is taken out of context. It’s not about right. It’s about improving the representation at the boards. I appreciate where the member is taking the words “right leadership.”

[4:55 p.m.]

I think the intent is diverse leadership, representation from all groups and all sectors. Because for all of us that know…. I know that the member opposite has SFU and KPU in her backyard. I know that members opposite, on her side of the chamber, have CNC and UNBC. They all represent the diversity of our province. Therefore, they should represent the diversity of our community.

S. Cadieux: As I stated earlier, I don’t see…. The minister herself has explained that adding balance and diversity to the boards by virtue of an array of appointments is not impossible already, given the way that the legislation stands. She has, by example, added a First Nations component to every board, which, again, I commend. I think that’s very worthy.

But by virtue of her last statement, the minister would then be saying that, in fact, the diversity that the minister is trying to achieve on the board, the balance that the minister is trying to achieve on the board, is having executive members of unions on the boards. Could that leadership — that same experience, that same leadership or perspective — not be given by someone who formerly held that but is still a member of the faculty or staff of an institution?

Hon. M. Mark: To the last point, absolutely, they could provide that leadership. But what is for discussion is that we’ve excluded a certain group of people. I would say, for the record, that the law…. There’s nothing in the legislation that refers to unions. The member opposite and her colleagues on that side of the House have referred to unions. There is nothing in the law that says “unions.” It’s “elected faculty and staff.”

The point of this bill is limiting the pool. All we’re trying to do is to make sure that that pool is open to representatives that want to serve on the board. For those of us that know in these chambers how hard it is…. It is not an easy task to represent as a board of governors — the work and the duty that entails and all of the standards that are in place to make sure that it’s done in the best interests of the institution and the students and the communities that they represent.

Absolutely, they could provide the leadership. But we do not believe that we are limiting the pool. If anything…. I will ask the question again. I couldn’t find any evidence…. Perhaps the opposition might have some evidence around why this law was made in the first place, in 2011. Is there evidence that can be provided in these chambers that show that there is a systemic problem that the pool should be limited to members that were appointed or elected as faculty and staff at a public post-secondary institution?

S. Cadieux: Well, respectfully, I’m not the minister, so I don’t need to answer that question. But I will ask another question. That is…. Yesterday the Minister of Education, in his comments about the bill, said: “It’s about time that we didn’t shut out people who have the most experience and some of the most valuable perspectives and hamper their ability to serve our great province and our institutions and that we do a better job of running those institutions.”

To the minister: could you clarify perhaps or explain to me what was intended there? To me, it would suggest that government, with this shift, is suggesting that members of faculty and staff have better perspectives to offer, that that’s what the statement says.

Is it the minister’s intention that, in fact, those faculty and staff who have an obligation or who have the role of negotiating with the board, on behalf of administrative or staff associations, the terms and conditions of service of members, or adjudicating disputes regarding members of instructional, administrative or other staff associations of the institution should be running the institution through serving on the board?

[5:00 p.m.]

Hon. M. Mark: I think my expectation as a minister is that all members of the board who are appointed are going to do their level best to represent the best interests of the board. Is that best or better?

There is a high standard that is expected of all members that are appointed to boards, regardless of their background, whether they’re a lawyer, a professional accountant, a mother, a student, whether they’re from the LGBTQ community, whatever they represent. The point is many people that are on our boards represent multiple communities. They have multiple identities. They carry multiple responsibilities because they’re leaders in their communities.

Nothing has changed with our new government with respect to members on the board. We’re always looking for community leaders to represent the community institutions in their backyards.

S. Cadieux: Yesterday the Education Minister also referenced that this change is coming about after extensive consultation and at the urging of those consulted, which is quite different from what the minister is suggesting brings this about, which is…. And the staff suggested that this comes about from the staff or the ministry level in reviewing the legislation and determining that this is potentially discriminatory and therefore should be changed.

Could the minister please tell us who was consulted during this extensive consultation? How was the consultation done? Is there a report? And will the minister table any and all documents relating to and arising from that consultation?

Hon. M. Mark: I guess first I will say we’re doing this now because it’s our first real available opportunity to have this fall legislative sitting. There were many complaints since the amendments were made, in 2011, from over 1,000 stakeholders who said that this was discriminatory. I’m quoting the words just because I want to be clear that I’m quoting all of the things that were said in Hansard — discriminatory and that it was heavy-handed to make these amendments.

Staff brought it to my attention when I was appointed minister, and we reviewed it. I’m constantly engaged with the board of directors. In fact, I re-hosted the first training with the board of governors in Richmond two weeks ago, and I learned, asking my staff, that that board training for appointed board members of public post-secondary institutions hadn’t happened since the ’90s. I would say that I’m actively engaged with the board and all the stakeholders involved with the public post-secondary institutions.

[5:05 p.m.]

S. Cadieux: Then is the minister saying that the Minister of Education yesterday, when he spoke and suggested that an extensive consultation with…. “There has been a lot of consultation by the Ministry of Advanced Education, Skills and Training with the business community, with those involved in the sector and with community members about some of the restrictions that were put in place a number of years ago around board service. I think the results that came back from that consultation were all of the same…. Whether it was staff and faculty associations or local chambers of commerce, all parties sought to enhance the pool of people that could apply to be a part of governing these institutions.”

Given that statement, again I’ll ask the minister: has there been a consultation with anyone, and will the minister tell me who that consultation was with or table a document or table who the Minister of Advanced Education is referencing? Or, as the minister suggested in her last answer, is the minister relying on information from a debate from 2011?

Hon. M. Mark: I want to clarify for the member opposite the definition of “consultation,” because consultation and engagement can be used in the same terms. I wasn’t in the House when the minister spoke to the word “consultation,” but I can say that I’m actively engaged. I don’t have my calendar with me to show you how many times that I’ve met with the presidents or how many times that I’ve met with the board members or the public sector employers or any of the unions, but I’m actively engaged.

I have heard from some of the unions that this has been an amendment that has been challenging and restrictive, the same sentiment that was raised from letters that were brought to this chamber in 2011. So the issue hasn’t changed from 2011. The only thing that’s changing today that’s being brought forward in these chambers is to amend the section of the act that excludes those elected, appointed individuals.

S. Cadieux: It still doesn’t answer my question related to the statements by the Minister of Education, which I read out moments ago from Hansard, that state that there has been extensive consultation by the Ministry of Advanced Education, Skills and Training with the boards, the institutions, the chambers of commerce, etc.

[5:10 p.m.]

I would again ask the minister: can she confirm whether or not she has held any such consultations on or has received any correspondence from anyone other than a member of a union suggesting that it is difficult to fill these board vacancies?

Hon. M. Mark: What I said in the chambers yesterday was that we were going to bring things into balance. The amendments to this act will bring us into balance.

Right now we’re the only province that excludes elected members of faculty and staff. We want to level the playing field, as I’d mentioned, to provide opportunity for members of the community — that have to go through rigorous processes, I would add, that have to go through extreme scrutiny, through the BRDO process, to be screened, to be appointed to a board. Then there are so many other provisions in place to ensure that they uphold the best interests of the institution.

I appreciate the questions from the member opposite. What we are doing is amending the section of the act that excludes appointed, elected members from faculty and staff to be appointed to the board.

S. Cadieux: I appreciate that the minister is pointing to other areas of the country where the acts read differently and have different sections and whatever. I don’t disagree. I would argue, though, that the minister is not making the same argument to include significant conflict-of-interest provisions inside the act as acts in other jurisdictions do. She is only seeking to balance this one thing that she is not comfortable with and dislikes and is, I guess, on advice of counsel, potentially discriminatory.

Perhaps it is. I’m not going to argue the legality of that. I don’t know. I’m just trying to get at the root of the necessity of this change based on the commentary given by the minister, by her staff and by members of the government in debate yesterday around why this is happening and what purpose it serves.

Is the minister suggesting that the Minister of Education misspoke yesterday when he suggested that the Ministry of Advanced Education had consulted extensively with schools, community groups, chambers of commerce, and so on, in regards to the necessity of this change?

Hon. M. Mark: I’ll thank the member for the question. While there haven’t been formal consultations, the word “consultation” was mentioned from my colleague. The reference is to the countless petitions that we received over the years. I have been briefed by my staff that there have been petitions that this act has been prohibitive, interpreted as discriminatory and that there was no evidence to suggest that it was warranted.

I know that the member opposite isn’t in a position to answer my questions, but as the minister, when I came in to look at my file, it wasn’t clear why one segment of our society — elected members that work as staff at public post-secondary institutions — is not allowed to serve on boards. There is a threat. It has been put out publicly that there is a threat on a constitutional challenge of our Charter of Rights and Freedoms.

For all of that information, I will assert that there has been engagement which, I will say on the record, can sometimes also be interpreted as consultation. But if the member is asking for formal consultation with respect to title and rights and law, with consultation with First Nations, no. That is not the test that was carried out here. But there is ample information, evidence, to suggest that many people, over 1,000 people, felt discriminated by the addition of that act. This is why we are suggesting and debating to remove it.

S. Cadieux: Fine. I’m comfortable with the term “engaged” or “engagement” or “have had a conversation with,” whatever term the minister would like to use to describe interactions that she has had and that the Minister of Education referenced very directly in his commentary on the bill yesterday as consultations — or we can replace the word “consultations” with “conversations,” if you’d like to — with boards, chambers of commerce, community members, etc.

[5:15 p.m.]

Can the minister point to any conversation, consultation, letter received, petition, what have you, stating that it was difficult to fill positions on the board, and therefore, this restrictive provision that would affect a very small subsection of the faculty and staff of all of the universities and colleges in British Columbia needed to be changed?

Has the minister had that from any member of the public that is not a member of one of those staff or faculty associations?

[5:20 p.m.]

Hon. M. Mark: I’m routinely out on the road and visiting the institutions across the province. The member opposite is asking whether or not I’m driving a formal consultation and doing a report.

I’m actively hearing that filling board positions is a very challenging thing in all of the institutions, especially in the more rural and remote communities — North Island, Northern Lights, Coast Mountain — where the pool of people that are busy raising their families, involved in their communities, are also asked to step up. That’s with a certain competency, which the member opposite raised — people that are lawyers or accountants, advertisers, real estate agents, what have you.

It could be the competencies that members, we’re suggesting, could also have — that are faculty members. They are also elected. So their elected status prohibits them from being on the board.

It is an issue that I have heard over the course of my year, but I’d still want to underscore that this is an issue that was raised in 2011 that we didn’t have a chance to change. We raised it in opposition, when we were on that side of the House, and there was no will from the former government to make the amendments. We are making the amendments because we are still, by virtue of how the act was created, limiting the pool of people that could step forward to represent the boards.

S. Cadieux: I still haven’t heard an answer to my question.

I’ve been out talking to the boards, the members of the boards, the presidents and the staff, and no one has raised this with me as the critic yet — I’m not saying they won’t, but they certainly haven’t — as something that they see needed to be changed in order to be able to fill board positions.

I certainly haven’t heard it from any past Ministers of Advanced Education that they were having trouble finding qualified people to fill board positions, even in smaller communities. Now, I’m not saying that that isn’t the case. I just asked a question as to whether or not anyone outside of the faculty and staff of institutions has raised this as an issue with the minister, because it was presented that way by the Minister of Education yesterday in this House.

For clarity, I had hoped that the minister would be able to point to at least one person on a chamber of commerce or one president of a university that has raised this as an issue — so to bring credibility to the argument that that, in fact, is why we’re bringing this forward. What I’m hearing instead is that the reason we’re bringing this forward is because there’s a philosophical belief that this is discriminatory, and the government would have done it in 2011 if they had been government but they weren’t government so now they’re doing it because they’re government and they can.

That’s fine, but if that’s the argument for doing it, that’s the argument that should be presented. Not the argument that “we’ve had consultation and everybody tells us this should be the case.”

How many people sit in total on the 25 boards in the province, and how many of those seats are currently reserved for faculty and staff positions?

[5:25 p.m.]

Hon. M. Mark: Approximately 375, 30 faculty and 24 staff, and no staff or faculty at the Justice Institute of B.C. because their board structure is done differently.

S. Cadieux: I’m assuming that the minister, in repealing this…. If this repeal goes ahead, then not only would members of faculty and staff who hold voting positions, as is currently excluded, be able or eligible to sit in those 24 positions, I think you just said, that were elected faculty and staff positions by statute on the boards but also be appointed by the minister to fill vacancies in the LGIC appointments as well. Is that correct?

Hon. M. Mark: Yes, that’s correct.

S. Cadieux: Then could the minister tell us how many positions the minister thinks will be filled by people previously excluded?

Hon. M. Mark: To the question of amendments and increasing the pool, the pool could be increased upwards of 283 people. The composition of the boards at colleges, institutes and universities isn’t going to change.

How appointees are made is a combination of things. Some terms are for one year, some are for two, some are for three, some are for four, one expires, one is a lawyer and one is a professional accountant, one lives in the community, one is an architect. So there are so many variables that go into an appointment. But the pool will open upwards of 280.

[5:30 p.m.]

When I speak to the composition, as it currently stands, the College and Institute Act, section 9, states one person on the faculty of the institution elected by the faculty members and one person who is a part of the support staff are designated to be on the formula, the composition of the College and Institute Act. Under the University Act, two faculty members elected by the faculty members and one person elected by and from the employees of the university who are not faculty members.

I’m going to go back to the formula of the composition. University boards are comprised of 15 members: the chancellor; the president; two faculty members elected by the faculty members; eight persons appointed by the Lieutenant-Governor-in-Council, two of whom are to be appointed from among persons nominated by the alumni association; two students elected by students who are members of an undergraduate student society or a graduate student society; and, finally, one person elected by and from the employees of the university who are not faculty members.

I just want to underscore and state for the record, for the members opposite and who aren’t aware, that there is more to it than just appointing one person to the board, that there are a number of variables that are taken into consideration to ensure that that board composition is going to be best suited to represent the best interests of the institution.

S. Cadieux: Just to clarify, then. The pool is expanded by 283 people who are currently excluded by this clause that we are talking about repealing. Fair enough.

The composition of the board, as it’s structured, allows for the Lieutenant-Governor-in-Council to make a significant number of appointments to all of the boards. If this is repealed, there is nothing preventing the minister, in that role that she holds or that the Lieutenant-Governor-in-Council holds, from appointing a member of a faculty or a staff association that happens to be on the executive of that faculty or staff association to one of the positions that is not elected by the faculty or staff. Correct?

Hon. M. Mark: For those that are reading Hansard, the member opposite was a cabinet minister. The member opposite is aware of the formalities that go along with BRDO. There is a duty, as ministers, to represent the Crown. There is a duty to represent our Crown agencies, which in this case, under my ministry, are the public post-secondary institutions.

[R. Chouhan in the chair.]

I respect that…. I believe the member opposite talks about my feelings or my opinions. But I have a duty, as a minister, to do things in the best interest. For sure, I guess a minister could go and appoint all lawyers. A minister could go appoint all professional accountants. A minister can go appoint all…. I don’t know. The sky is the limit, perhaps. But that’s not the way the acts are structured.

You have to work with your president. You have to comprise and appoint members that are going to serve the president. There is a formula here. I believe the minister opposite is implying that if we open up this pool of potentially 283 people that have been precluded by the former act of 2011, somehow they may take over all of the boards. She had asked earlier. There are 380 positions of board appointments across the public post-secondary ecosystem.

The premise of us bringing forward amendments to this act is to open up the pool. But there are still checks and balances — through BRDO, through the Lieutenant-Governor-in-Council — supporting the president in what the president needs to carry out their duties for the public post-secondary institution that they serve.

There is no formula. There are parameters, which I indicated earlier. I can lay out the formula that is in place for colleges and their compositions or institutes and their compositions.

[5:35 p.m.]

I’ll take further questions.

S. Cadieux: Thank you to the minister, but that’s not what I’m implying, actually. What I’m implying, or trying to get at, is the sense that the minister has given in her statements about why this is important — that it’s very difficult to get people in small communities to serve on boards; that it’s difficult to get people to step up for a role that requires time, effort and expertise; that it’s difficult, when that pool is limited by 283 people from around the entire province, spread out across all of those institutions; that by opening it up, it’s going to now be miraculously so much easier to fill all of these difficult-to-fill positions because we now have 283 people that could be appointed to fill vacancies on boards.

I am just asserting that if the minister is suggesting that because of the need for all of these other considerations, which I agree are in place and that she needs to consider when she makes appointments to boards…. Indeed, we are not talking, though, just about filling one or two staff or faculty positions on each board by opening up this pool of 283 candidates. We’re also suggesting that these 283 candidates could potentially be available to serve through an LGIC appointment rather than solely through an elected position. That’s all I was implying.

So getting back to the minister’s statement that this section is being repealed because it’s discriminatory or potentially discriminatory. It appears that the ministry is attempting to ward off a potential legal battle around this if somebody ever chose to wage one. But that hasn’t happened in the nine years or whatever that this exclusion has been in place.

But it is potential. So the government seeks to remove that potential for a suit around discrimination. I understand the argument being made that there are people being excluded because of their role in an association and that there’s a desire to expand the diversity of expertise available to sit on boards.

Did the minister, then, contemplate creating a precondition for board service that individuals must, in fact, be members of a faculty or staff association?

Hon. M. Mark: The answer is no.

S. Cadieux: Why not?

Hon. M. Mark: We wouldn’t interfere with the members, students and faculty that are elected by their membership. It’s their vote of confidence from their peers that puts them into those appointed positions in the first place, so we would certainly not interfere with that.

[5:40 p.m.]

S. Cadieux: What the minister is arguing is that we’re repealing a portion of the bill because it’s potentially discriminatory to a group of people who could otherwise offer themselves for service. That’s not necessarily offer themselves for service specific to being elected by their peers to serve in that board role, that statutory position on the board, but, in fact, to allow them to serve in a role on that board appointed by the minister because they are the most qualified person available to serve, potentially, on that, especially in a small community. Is that correct?

Hon. M. Mark: I want to kind of outline what the act says, just to be really clear that the group that is being excluded is….

“A person is not eligible to be or to remain a member of the board if the person is (a) an employee of the institution, and (b) a voting member of the executive body of, or an officer of, an instructional, administrative or other staff association of the institution who has the responsibility, or joint responsibility with others, to (i) to negotiate with the board, on behalf of the instructional, administrative or other staff association of that institution, the terms and conditions of service of members of that association, or (ii) adjudicate disputes regarding members of the instructional, administrative or other staff association of that institution.”

I just want to be really clear. It doesn’t say anything there about religious faith. It doesn’t say it excludes people that vote for particular parties. It doesn’t exclude place of residence. It excludes one particular group.

The principle that we are suggesting that is discriminatory within the whole act is the one group that is excluded to be represented on the board. Everyone else can. Lawyers can. Professional accountants can. People of political parties, people of different faiths, people of different ages and people of different sexual orientations can.

All of the groups that are protected under our Charter of Rights and Freedoms can be represented on a board, except for this group. That is what is for discussion.

S. Cadieux: In that impassioned response, I would understand, then, that the minister must be terribly concerned. She’s terribly concerned that this discriminatory clause appears and must be repealed because it discriminates against, I believe the minister has said, 283 people in the province.

The minister must be terribly concerned about the agreements that her government is imposing that do just the same for individuals in the trades that are no longer eligible, by virtue of their non-association with a particular group, to work on provincial infrastructure projects.

Hon. M. Mark: I am going to try to read between the lines with the things that are being implied. Just like there is no section in this act that refers to unions, even though that’s a group that gets mentioned on the other side of the House, we’re not talking about tradespeople. We’re not talking about any agreements. We’re talking about board governance and board appointments. I’m happy to answer any questions that are linked to that.

I can keep repeating the compositions of the college, university and institutes acts, how the formulas are made and the 283 people that have potentially been limited by virtue of statute from the pool. I’m happy to keep answering the questions.

S. Cadieux: That’s great. I’m glad the minister is happy to answer questions, because I still have some.

In fact, we’re talking about a clause that the minister feels is discriminatory, and I’m not arguing that it could potentially be discriminatory. In fact, it is. In my understanding from my readings of what happened years ago, it was put in place to actually clarify and prevent conflict of interest from occurring. So there was a reason to do this, which made sense.

[5:45 p.m.]

Yes, unfortunately, for the period of time where those employees of the institution are also fulfilling another role in a faculty or staff association that would put them in conflict of interest on the board for much of what the board discusses and much of what the board’s role is with the institution, they were not eligible to serve for that period of time.

I do think it’s interesting that the minister makes this argument for this group of 283 people as discriminatory, but at the same time, her government is discriminating against an enormous number of people by virtue of their non-association in a circumstance where they absolutely have no conflict of interest.

Moving on, by advancing this repeal, am I to understand it is the minister’s expectation that any board member who may now be eligible to serve, despite the fact that they hold a role as a voting member of the executive body or an officer of an instructional, administrative or other staff association of the institution who has a responsibility or joint responsibility with others to negotiate with the board, on behalf of that association, terms and conditions of service of members — meaning contracts — or adjudicate disputes involving members…? The minister would expect that those members will be proactive in their disclosures of conflict and recuse themselves from any and all discussions and votes related to compensation or arbitration of disputes to which they are a party. Is that correct?

Hon. M. Mark: That’s absolutely correct. I will repeat for the record that for the first time since the ’90s, we brought members of the boards that have been appointed to understand their duties, to reiterate their responsibilities to the board. In the College and Institute Act, in the Royal Roads University Act, in the University Act, it is really clear. Section 8.2 of the College and Institute Act: “In carrying out the objects of an institution, the members of the board of the institution must act in the best interests of that institution.” It doesn’t say “should.” It doesn’t say “maybe.” It “must” carry out.

The provisions that were made back in 2011 — most of them were good. The member and I both agree that there are provisions in there to address conflict of interest and to have powers for the board to remove members from the board. Those checks and balances are good governance, and I hope that the member and I will continue to agree that it is imperative that we have checks and balances.

The member is an MLA and represents her constituents and, at one point, was a minister. We have strict laws that I heard her colleague talk about that are governed by the Conflict of Interest Commissioner. These rules are to be taken seriously. We are supposed to live and abide by those rules, but there are checks and balances when you don’t. There are accountability measures when you don’t follow those rules.

I am very confident in those checks and balances of conflict of interest, but why I mentioned the training that we had with the board of governors was to really underscore who their responsibility is to, the duty that they carry in carrying out the best interests. That was one of the provisions that was amended back in 2011: that it is about the best interests of the institution. I hope that the member and I can agree on that point.

S. Gibson: A good discourse this afternoon, quite expansive consideration of this topic. Coming out of a university background, it’s one I have a particular interest in, as the minister will know.

There’s a philosophical dimension to this issue, but there’s also a practical one as well. I want to just kind of enumerate a few of those. I’m going to be relatively brief. I think we’ve had a good discussion here today, and I appreciate the detail that the minister has provided here. It’s been helpful.

[5:50 p.m.]

I guess when you consider the board as a body of governance, you think about the issues that will come before it. This has been canvassed to some extent, but I want to really ask the minister…. When there is an issue that relates to collective bargaining and boards of governors…. Boards of universities and colleges get into this a fair amount. Having worked in that environment and knowing the role that the board plays, there would appear to be an obvious conflict, one that is hard to really get away from and ignore.

I’m wondering if the minister could address that specifically, because that, perhaps, is the one that requires the most attention, in my view.

Hon. M. Mark: Thank you for the question from the member opposite.

Conflicts of interest are dealt with at the board level. All of the public post-secondary colleges, institutes and universities have bylaws in place to address conflicts of interest.

As the member is aware and, I believe, the member mentioned in his remarks yesterday, as MLAs, as members of this chamber, we have a duty to disclose if there is a conflict of interest and speak and get counsel if there is a perception. That duty is on us, as elected MLAs. The same expectation is in place for members that are appointed to the board of governors.

Speaking to Northern Lights College, board members must represent unconflicted loyalty to the interests of the ownership. This accountability also supersedes any conflicting loyalty such as that to advocacy or interest groups and memberships on other boards or staff. This accountability supersedes the personal interest of any board member acting as an individual consumer of the organization services.

I’m not going to read out all of the bylaws that I have in place, but there are rules in place. And conflict of interest, as we all know in these chambers, can be implied. It can be real, but it’s the cost of that conflict of interest to the reputation of the institutes that we serve, including in these chambers.

There are, again, checks and balances to address the perceived…. Of course, you should not be able to advocate for your own interests without checks and balances.

S. Gibson: Thank you for that.

My query is a follow-up to that, with regard to conflict of interest. Is the minister saying that if a matter of collective bargaining comes up at the table, this individual would excuse themselves?

Hon. M. Mark: Yes.

S. Gibson: Okay. A follow-up to that. Boards deal a lot with collective bargaining. They are working with the unions. The budget, for example, has to be adopted.

My assumption, based on what the minister’s comments are — trying to comfort us, I guess, here today — is that this individual would excuse themselves a fair amount, given that personnel, human resources, labour negotiations, all of those things, involve the union. If this person is there representing the union, unlike the other faculty and staff, this person will have to excuse themselves, I would say, numerous times, if my understanding is correct based on the minister’s comments today.

Hon. M. Mark: Collective bargaining happens every three years. As I was mentioning to the member opposite in her queries, some board appointments are for one year. Some are for two. Some are for three. Some are for four. I came on the board. Some people have been there for a while.

[5:55 p.m.]

There are a lot of considerations that go into the formula of making up and appointing the composition of a board, but there is an expectation with collective bargaining that that person would recuse themselves. I’m going to give the example of our Attorney General who recuses himself with respect to proportional representation. That is an expectation. Those are rules that are set out for him to carry out his duty.

With respect to the functioning of the board, there are 15 members that are on boards, for the most part, if not eight, with some. So the chance of no quorum that I think was suggested yesterday — that the board will not be able to carry out its business because of collective bargaining and one person has to recuse themselves…. I have not heard of this being an instance, but there are checks and balances to address the conflict-of-interest perception.

S. Gibson: Am I given to understand that this individual will not be an advocate for the union on the board?

Hon. M. Mark: The answer is no. When a member signs up and agrees to serve the board of governors at a public college, institute or university, they have a duty to the institution.

I’m just going to read from Vancouver Island University. As such, there is a general obligation to ensure that board members protect themselves and the university from situations of conflict of interest or perceived conflict of interest. “Each member, regardless of how he or she becomes a member, has a responsibility first and foremost to the welfare of the university and must function as a member of the board, rather than a member of any particular constituency.”

S. Gibson: As my colleague from Surrey South pressed with some, I thought, productive questioning a moment ago, I’m reminding the minister, with respect, that there already are faculty and staff members on the board. So if this person, individual, is allowed to serve on the board and they’re a member of the union, the other members….

The faculty members are also members of the faculty association. The staff people are members of their union. What is the differentiation, then, between this new appointee that this government is advancing — and I say that with respect, Minister — and the other four or five people? What is the difference, then, if this person is not an advocate for the union? What’s the difference?

Hon. M. Mark: Again, I appreciate the question from the member opposite. Prior to 2011, before the law came into effect, I have no boxes of evidence that show countless cases of systemic issues of having elected members from faculty or staff to serve the board. Then the law changed in 2011 to prohibit people that are elected to serve on the board.

[6:00 p.m.]

The whole point of this amendment is to open up the pool to people that represent their communities and who have signed up to serve the best interests, by law — that is stated within all the acts — to serve their respective public post-secondary institution in their community.

S. Gibson: Just to pursue it a little further, if I may, what then is the key difference between the role of this individual and the existing faculty and staff members who are also members of the union? What is the big difference that I might notice if I came as an attendee of the board meeting as, say, a student or a faculty person? What is the difference that is going to be helpful to the board in its governance, in its way that it administers the affairs of the university or college? What is that difference that benefits the governance and the students of that university or college?

Hon. M. Mark: There is no difference. The only difference…. I can repeat the question of the act once again. There’s one group that’s being excluded, with no evidence on why they’re excluded. When you exclude people, it warrants grounds for constitutional challenges. So the difference is we’re opening up the door to people if they want to come in.

No one is going to be going out fishing for people to come to the board. People sign up through BRDO to go through a rigorous process to be a part of a board. It actually is a lot of work to represent your community and volunteer to represent these public post-secondary institutions.

We are just closing the door of discrimination that was in place with no evidence to substantiate why this group of elected people would not serve. We don’t know. There’s no evidence to suggest that their participation, on the boards or off, was good or bad. There’s no evidence to suggest that they, of all the people in British Columbia, should be excluded from serving on the public post-secondary institutions of this province.

S. Gibson: As we have discussed and you have agreed to, Minister, this individual will have to abstain from all of the meetings’ discussions regarding any matters related to the union. I think you’ve acknowledged that and agreed to that. This individual will not attend any of those confidential meetings. There are going to be minutes kept of those deliberations, as sensitive as they are, when the board negotiates with the union. There’ll be minutes kept. These minutes will be received by the overall board. All of those will be denied, I’m presuming, to this individual.

My question is: how does that individual relate to the other members who are faculty and staff appointments, who also will not have to be apprised of those deliberations? I’m getting the sense that there’s going to be quite a few people absenting themselves from these important meetings, and I’m not sure what benefit that is to the governance of the university or college. It seems to me that that will not be a benefit to the students of that university or college. I would appreciate the minister elaborating on that a little bit.

Hon. M. Mark: I know it’s not my place. I’ll just ask a rhetorical question because I’m not allowed to ask questions of the opposition.

I don’t know, because there’s no evidence before me to suggest it, what they will not contribute to the board. There’s no evidence to suggest that people that serve as elected members for faculty and staff are not capable to carry out their duties, under the law, that say: “I will carry out my duties to serve the best interest of the institutions, and I will comply with conflict of interest.”

There are measures in place. If, for example, there was a badly behaved person on a board that needed to be removed because they were not a functioning member of the board, as the member opposite is suggesting, there would be measures to get rid of and remove that person from the board. The point of having public post-secondary institution boards of directors governing public post-secondary institutions is to support the president. We would hope that they are going to be functioning board members and active board members.

[6:05 p.m.]

To suggest that this individual — I don’t know who this individual is that is being referred to — will be, I guess, less functioning because they are somehow associated and affiliated with another group….

As I suggested before, the member opposite hasn’t served in cabinet, so doesn’t know what it means to be a minister, but when you have cabinet privilege, you have to recuse yourself because you have to carry out the best interests of all British Columbians. You have to set aside your partisanship for your constituency. You have to serve the best interests of the province.

I just think that it’s important that we have a respectful conversation here about the capacity of our elected members. There are hundreds of members for whom, I would trust and hope, when the members opposite made those appointments, they did so with the intent that they were going to carry out the best interests of the institution and that they’d have the capacity to identify any conflict-of-interest laws. They are identified in a whole bunch of bylaws. I don’t want to…. I can repeat them all, but every institution has a bylaw to address conflicts of interest.

Interjection.

The Chair: Member.

Member, carry on.

S. Gibson: Thank you, hon. Chair.

For the record, then, is the minister saying, without equivocation, that having a union president or an executive member on the board offers absolutely no perceived or real conflict of interest? Is that her assertion today?

Hon. M. Mark: We’re not suggesting that by making these amendments we are removing or diluting the laws that are in place to address conflicts of interest. I can ask another rhetorical question: does your political partisanship impact your partisanship to serve the interests of the board?

Again, there’s nothing in the act that precludes a person’s religious faith, their sexual orientation or anything else. What is being debated here is that an elected employee can’t serve on the board because, for some reason, they won’t be able to manage — through all the other laws in place, and all the checks and balances that were also brought forward in 2011 — to address best interests, conflict of interest and measures to remove people from the board.

S. Gibson: In the event that a situation emerges that is perceived by the board as a perceived conflict of interest and it’s contested by that member….

Interjection.

The Chair: Member.

S. Gibson: In the event that there’s a perceived conflict of interest identified by the board and the member is present, what is the role of that individual? Can that individual contest that? Can they disagree with it? Or do they automatically withdraw? That’s my question.

[6:10 p.m.]

Hon. M. Mark: Thank you for the member’s question. There are measures. I’ll give you the example of UBC, section 7.7. Where a governor has a conflict of interest in respect of an agenda item, the governor “shall be absented from any discussions or vote concerning such matter that may occur during a closed or in-camera session of the meeting; shall not participate in the discussion of, or voting concerning, such matter, even if they occur during an open session of the meeting.”

Under the University Act: “…the Lieutenant Governor in Council may, on a resolution passed by the vote of at least a 2/3 majority of the members of the board, remove…” a member from office. So there are measures if it escalates to that point, but the first step would be for it to be addressed by the board chair and then collectively through the board.

S. Gibson: I have just one final question. But before I pose that, I want to say that I’m not comforted today. I feel that we’re going in the wrong direction. This is not going to be good, I believe, for university and college governance in our province. I believe that we’ll regret going this direction. I want to say that, with respect to the minister. I believe this is not in the best interests of universities and colleges. I think the conflict of interest is going to be palpable. I believe that.

My last question is a practical one. The board makes a series of decisions that this individual does not agree with. He or she is representing the union, really, when you think about it and when you acknowledge that. A decision is made. The member leaves the meeting and attends a union meeting and is asked: “Well, what went on?” “I can’t say.”

It gets to the heart of the matter of why this individual is even there. This person comes back to the union meeting. They say: “What went on?” “Oh, I can’t talk about it.” Somebody is going to say, at some point: “Well, why were you there? What’s your role?” I think this is a matter that needs to be considered.

If the minister would like to answer that question, it gets to the point of who is being served. Is it the university, or is it the union? Thank you, hon. Chair, for allowing me to ask these questions today.

Thank you, Minister.

M. Lee: I’d like to thank the member for Abbotsford-Mission, who asked that scenario, because that’s actually a scenario I’d like to go through with the minister, if I may. I appreciate the discussion that’s been held here in this chamber for the last period of time on this section, but I think it’s important to understand the approach that this government is using towards board governance.

With that in mind, I’d like to first ask: how does the member, in this capacity — the person who will now be eligible to serve on a board of governors for an institution — divide his or her loyalties between the loyalty to the institution and the loyalty to the employee organization for whom they’re elected to serve in these roles and responsibilities that are set out, for example, in 59(8)?

[6:15 p.m.]

Hon. M. Mark: Thanks for the question from the member opposite. The members that the member opposite is referring to are elected by faculty to represent faculty on the board, under those seats that are designated under the composition. That is not going to change through these amendments. They’re not there to represent the union.

With respect to the member opposite’s comments around loyalty. I did state in my earlier remarks…. Many of us have dual loyalties, multiple loyalties. I’m an MLA; I’m a mother; I’m Nisga’a; I’m Gitxsan; I’m a wife; I’m a volunteer; I’m a minister. I’m all sorts of things. I represent Vancouver–Mount Pleasant. Did I grow up in various places in the province?

That’s the diversity that we’re looking for on our boards. So with respect to loyalty, we expect of board members, when they sign up to serve on the board, that they will serve the best interests of the institution, which is fundamentally about the students that attend those institutions, that fundamentally will benefit the communities that they will serve and represent.

M. Lee: Let me just say as a comment that I appreciate the discussion that the minister had with the member for Surrey South about board diversity. I think that we all understand the nature of the importance of diversity — not only in this House but on our public institution boards.

I will separate the discussion that we were having from just the core components of good governance. Even on the second reading bill that we spoke to yesterday, I wanted to get a better understanding as to the purpose and objective of this change. When I read section 59(8) of the College and Institute Act…. It is the function that this voting member of the executive body is serving to: (i) “negotiate with the board” on “terms and conditions of service” and (ii) “adjudicate disputes regarding members of…staff association of that institution” — presumably with that institution.

We have two actions that are being taken for which this “voting member of the executive body” and the employee of an institution, is serving. Those are the two functions which this section speaks to. It’s not to that person’s character or ethnicity or sexual orientation, or First Nations or otherwise, in terms of their heritage. It’s about the function they play vis-à-vis the institution involved. That, presumably — and I can see that — puts the person in conflict. That’s the reason why, presumably, these sections were introduced in 2011.

[6:20 p.m.]

When we’re talking about these functions that are being served…. The minister has pointed out, for example, in the Northern Lights College bylaws, which I don’t have in front of me — I appreciated the summary that she provided — that the language suggested that the loyalty of that individual, the loyalty to the institution, would supersede all other loyalties.

I think that that is the answer that I’d like to discuss with the minister. It suggests that the loyalty to the institution will supersede all other loyalties. I’d just like to ask the minister: how is that possible for someone who is negotiating on behalf of that employee organization and adjudicating disputes? Does she not see that there’s a conflict of loyalty there?

Hon. M. Mark: Thank you for the question from the member opposite. I’m going to give that example again, because I think it’s important to underscore these examples.

I’m Nisga’a, but I’m not going to be in chambers talking about the negotiation of the final agreement, because that would clearly be a conflict of interest. Conflict of interest is a very clear thing, and it’s a very real thing that is very black and white for people. Clearly, if someone was negotiating their collective agreement and they’re on the board of governors and that’s their hat that they wear to represent the faculty, that wouldn’t be the hat that they wear at the board of governors table.

I just want to bring the conversation back to the overall role of a board, because I think we’ve got lost in words that have been added into these chambers, of unions. That’s not what this section says. There’s no mention under section 59 in “Boards and members of boards” of the word “union,” so I just want to make sure we’re not just talking about unions.

We’re talking about board members. If they’re elected board members that serve on faculty and staff, regardless of that…. I’m going to “parking lot” that, as the member opposite shared. Let’s “parking lot” that for a second, and let’s look back at what is the role of a board of governors.

Overall, they have a responsibility for the institution, including the development of a statement of mission, an institutional strategic plan, conducting institutional performance reviews and renewals and ensuring that the institution is responsive and accessible to the community served. It is accountable for the financial operations of the institution, and it must act in accordance with provincial policy concerning advanced education.

Many of the boards are carrying out the mandate commitment that I gave them as the minister to serve in the best interests of students. So I just want to bring the conversation back to the amendments here, because there are no facts. I looked for the evidence. There are no facts that having members from faculty on the board that were staff represented on public post-secondary institutions somehow got their way with collective bargaining because they had those multiple hats. And there’s no evidence to suggest that before 2011 there was a systemic problem.

All we’re trying to do here is rectify a wrong that the member opposite agrees — both actually…. I’ve heard two members now, in some ways, affirm that it has been discriminatory. What we’re trying to say in these chambers, as well, is that there are all of these provisions to address conflict of interest. But ultimately, the member of a board of directors’ mandate is very, very clear, just like our mandate as elected members of this Legislative Assembly is very, very clear.

M. Lee: I don’t believe I said the word “union” in my comments at all, just to stand corrected on that.

I would like to just continue to talk about the hats. The minister talked about hats. This is the difficulty, I believe, which is an understanding of good governance. It’s beyond just rules.

[6:25 p.m.]

We can talk about acting in the best interest of the institution. But I think it’s very challenging to divorce yourself from an understanding of the objectives and the business plan, as my colleague the member for Abbotsford-Mission was talking about…. When your understanding of the business plan of an organization and the strategic plan and how all of the employee relationships are going to fold into that plan, it’s hard for you to divorce yourself from that — and also to wear the other hat in terms of representing the employer organization.

We see in current legislation moves where real estate agents can’t be found to be representing two sides of a deal. Lawyers. I know I’ve been in a law firm for 20 years. Conflicts with lawyers representing clients and their knowledge of what we have representing one set of clients versus another set of clients preclude law firms, typically, from acting for both sets of clients.

This is not really all that different, because as the minister suggests, we should be focused on the language and what is being struck out here.

I see the words “negotiate with the board.” When you’re negotiating with the board, you’re representing the interests of one party with the interests of another. We’re talking about two parties negotiating with each other. So how is it that an individual who is elected or has the responsibility to negotiate with this board can also serve on that board?

I would suggest strongly to this chamber and to this minister that the interest of good governance at the board level…. It’s very difficult and challenging for that member, this individual that we’re talking about — 283 individuals who might be eligible because of this. I would suggest it’s for good reason that this provision is there in the first place.

And what is being dealt with? The ramifications of this amendment will effectively put these boards in a more challenging circumstance around their board governance.

Again, I ask the minister if she could just walk us through. When she refers to section 7.7 of the university code of conduct for UBC, there’s 6.3(h) that clearly sets out that a conflict of interest situation is where an individual is representing the interests of a group of employees or contractors as a voting member of that executive body or as an officer of a staff or faculty association or union.

[6:30 p.m.]

You’re representing the interests in a negotiation. I think that that example of a conflict is clearly set out in the UBC code of conduct. This provision in this section as it applies under the University Act in sub 23(1)(g) would basically be consistent with what the university’s code of conduct is in the first place.

If you’re precluded from that already, what is gained here by striking this section?

Hon. M. Mark: There are measures in place to address conflict of interest. I’m glad the member raised the example that those measures for conflict of interest are governed through bylaws and not through the legislation because those bylaws can be more nimble, can be more responsive and you don’t have to wait, like in these chambers, for fall legislative sessions to fight for those amendments to be made to the law.

As mentioned earlier, it’s really important to have these checks and balances to address any of the perceived conflicts of interest and for the board to have measures in place to take action for accountability.

M. Lee: All I’m suggesting, though, is this is where it becomes problematic, because the colleges themselves recognize that that is a conflict of interest. Yet this government does not seem to.

When I look at Royal Roads, their code of conduct…. In section 3(g)(iii) and (vii) on page 3 of their code of conduct, they have other conflicts of interest that suggest that participating in the negotiating of a collective agreement or influencing or participating in a decision of the university that would directly result in the governor’s own financial gain…. This would include any discussions involving a collective agreement, which applies to the governor. If those are already conflicts of interest, how is it that an individual who’s already in that conflict of interest situation can now serve on that board?

Hon. M. Mark: We’re not amending the words “conflict of interest.” There are measures to address conflict of interest. There is clear language to address “serve in the best interest of the institution.”

What we’re removing is the discriminatory, exclusionary language that is identified — which I won’t repeat again, just in the interest of time, unless you’d like me to repeat it again — under 59(8)(a)(b)(i) and (ii).

We are talking about amending that section of the act. Conflict of interest, best interest, removing members from the board, all of those pieces will be in place for any member of a board of directors that has a perceived or real conflict of interest. That’s why those measures are there — for any action that could put the university’s credibility and best interest in disrepute.

[6:35 p.m.]

M. Lee: All I’m suggesting is that what this is doing, then, is making eligible individuals who, from the very beginning, are in a conflict of interest, which means that you’re asking each of these institutions…. I appreciate that I jumped to give an example of Royal Roads, which is subject to a different part of this bill, the next part. In any event, for illustration purposes, what this government is doing is effectively making eligible people who will be in a conflict of interest under the existing code of conduct for these institutions so that now, I say, they have a problem.

They will have a challenge, in the first place, managing that code of conduct and that conflict of interest. I think you’re putting somebody in a position where their divided loyalty between the institution and the organization they are representing is an impossible situation. They should not be serving in that capacity. If they’re truly acting in the best interests of that academic institution, they should not be serving on that board.

Now, again, back to the diversity comments that were discussed with the member for Surrey South. We recognize that faculty and staff are important stakeholders of these institutional boards, but they’re there. They can serve in those capacities. It’s only when they’re playing a different role, which is the subject of this amendment, that causes the concern.

Again, I know the member for Surrey South asked about the consultation, and you can ask about consultation also in this way: has there been any discussion with the governance committees of each of these institutions as to the way they will manage through this conflict?

Hon. M. Mark: I guess I want to repeat one point that I had made earlier, and that is about the importance of talking about all of these intricacies and tensions that exist for boards. The member opposite is a lawyer. The member opposite represents Langara. The member opposite belongs to a political party. Members opposite may have family that participate in different memberships. Many people that play a leadership role, that take part in our community, have multiple hats which, by virtue of that, will put us in a conflict.

With the question of conflict of bargaining, a member may be in a conflict if that is what is up for discussion at the board of governors’ table. But I want to repeat again that boards of governors are appointed and elected to serve multiple functions on a board. They do committee work. They do performance reviews. They do strategic planning. They work on missions — ultimately, to serve the interests of the students, the institution and the community.

When the member opposite says: “Managing code of conduct is impossible….” I don’t mean to be cheeky here, but we’ve got 87 members who represent the province. We are elected individuals. We signed an oath to serve the best interests of British Columbians. I take that oath seriously, and I don’t feel that I need to be managed. I feel that when you sign that oath, you know that there’s a code of conduct that needs to be followed.

[6:40 p.m.]

I think there’s a bit of a fine line there when we talk about people not having the ability to manage their actions. If you’re a lawyer, as mentioned, a developer, a professional accountant, a psychiatrist, whatever role you play on the board, it’s your experience that you bring to the board, but you are appointed and elected to carry out the best interests of the board. That is enshrined in the law.

M. Lee: While I appreciate the time we’re able to have for this discussion in this chamber, I think the minister, with respect, compressed my commentary there. Just to unpack it a little for her and just to ask the question. What I’m suggesting, of course, is that by the nature of this amendment, the government is putting in place eligibility for certain individuals who provide or perform certain functions.

In doing that, my suggestion and sense is that this government is putting individuals in an impossible conflict situation. That is going to be hard to manage for that individual, for the board chair, the corporate secretary and anybody else involved with the governance of that institution.

As a point of illustration, when we’re looking at guidelines that relate to collective agreements or decisions involving financial gain for that individual, that’s what we’re talking about here. We’re not talking about party affiliation or ethnic affiliation or any other background. We’re talking about the role — right? — in the decision-making process of that board.

When a board goes through its budget, determines student fees, recommendations to government, new hires, capital plans for that institution, where does the line get drawn in terms of where that individual would not be privy to that information?

My question to the minister is: what does she foresee in terms of restrictions of information that would be necessary around that individual board member so that that person does not violate the existing code of conduct because that person now is being put on a position on that board?

Hon. M. Mark: With respect to the member, the government is not putting elected faculty and staff in an impossible place. There are measures that I have indicated in these chambers already about addressing perceived or real conflicts of interest that would put the credibility or the reputation, what have you, of the board of the institution into disrepute.

[6:45 p.m.]

I guess my question…. Again, I’m not allowed to ask questions, but a rhetorical. Would the rationale mean that all the students that are represented on the board are somehow put into an impossible place because they’re allowed to be on the board?

I don’t know if the member wants to answer that, but I’m putting it on the table that people that are appointed to the boards come to the table with multiple expertise, capacities and interests, and there are checks and balances in place to park the interests that will compromise the best interests of the overall institution’s decisions that are on the table, whatever those decisions are. Whether it’s, as the member implies, collective bargaining…. That, again, I would underscore, is not the duty that boards of governors, the hundreds of them that have signed up to volunteer across our province, are doing. There is more to their role.

I don’t know where we are on time, but I want to thank the members that do sign up to be on boards of governors, regardless of whether they were appointments that were made from members on that side of the chamber or ours. The bottom line is it’s people that have stood up to represent their community.

M. Lee: Before giving the time, I just wanted to say one last point about that — that we are talking about specific functions by specific board members. I do think it’s a challenge to park those sorts of considerations, as the minister is suggesting.

I would like to make one final note that through this discussion, it’s very revealing as to how this government approaches governance for our public institutions, and it is a concern for members on this side of the House as to the lack of clarity and understanding about basic governance principles. That’s something that we’ll continue to pursue on any bill that they put in front of this House in the future.

A. Weaver: Now, I do appreciate the official opposition questioning and the line of questioning. I would suggest that there seems to be a misunderstanding, a fundamental one, as to how colleges and institutions operate in the province of British Columbia, which I would have expected not to have occurred in light of the fact that they have been in government for 17 years.

Please let me go through a series of questions. We’re clearly not going to make it though today. But the first question is with respect to section 1. I do realize that there’s been some kind of flow-over in sections 1, 2 and 3 when issues with respect to Royal Roads and universities have been discussed. So I ask some lenience, here, of the Chair. I will focus initially on the colleges and institutes.

My first question to the minister is: could she please describe the existing makeup of boards of governors as outlined in the College and Institute Act?

Hon. M. Mark: For the college boards, they’re composed of eight or more persons appointed by the Lieutenant-Governor-in-Council — one person on the faculty of the institution and elected by the faculty members, two students elected by the students, one person who is part of the support staff and elected by the support staff, the president, and the chair of the education council of the college.

I’ll add that the board of the Justice Institute of B.C. is slightly different. It consists of eight or more persons appointed by the Lieutenant-Governor-in-Council, and the president.

A. Weaver: Now, this is where it gets a little bit…. I was wondering — just for the sake of clarity and comparison, not dealing with section 3, but here — if the minister could say what the makeup of the board of the University of British Columbia is.

Hon. M. Mark: I feel like I need to say this really quickly so that we can get out of here on time.

[6:50 p.m.]

The board of governors of the University of British Columbia is composed of 21 members in order to reflect that it has two campuses: the chancellor; the president; a faculty member who works at UBC Okanagan elected by faculty members who work at UBC Okanagan; two faculty members who work at UBC Vancouver elected by faculty members who work at UBC Vancouver; 11 persons appointed by the Lieutenant-Governor-in-Council, two of whom are to be appointed from among persons nominated by the alumni association; a student who studies at UBC Okanagan elected from students who are members of a student society and study at UBC Okanagan; two students who study at UBC Vancouver elected by students who are members of a student society and study at UBC Vancouver; one person who works at UBC Okanagan elected by and from employees who are not faculty and work at UBC Okanagan; and finally, one person who works at UBC Vancouver elected by and from employees who are not faculty and work at UBC Vancouver.

A. Weaver: Would it be true, then, if I made the statement…? This is a question to the minister. In every case, in every college and institute — Royal Roads — and university in the province of British Columbia, the composition of each board has more order-in-council appointments than it does elected members of the university.

Hon. M. Mark: Yes.

A. Weaver: Could the minister please describe any other province in the country of Canada for which there are more order-in-council appointments at the university level over the elected or other members from the institution?

Hon. M. Mark: I don’t have the detailed information in front of me at this moment, but I can get the information to the member.

A. Weaver: We’ll be resuming this later, and I would hope we can start the questioning with this.

I do note the hour, and I move that we rise and report progress.

Motion approved.

The committee rose at 6:51 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow morning.

The House adjourned at 6:52 p.m.