Orders of the Day

Hon. M. Farnworth: I call continued second reading debate on Bill 2, Protection of Public Participation Act.

Second Reading of Bills

BILL 2 — PROTECTION OF PUBLIC
PARTICIPATION ACT

(continued)

Hon. D. Eby: Just before the break, I was talking about a Supreme Court of Canada decision where the court was taking the sharp edges off the traditional tort of defamation, the cause of action, the ability to bring something to court. It was in relation to Rafe Mair — comments he had made as an opinion columnist on the radio — and the court carving out an exception for opinion columnists.

Another really important case where the court kind of articulated this new approach to defamation is a case called Grant v. Torstar Corp. — Torstar Corp., at the time, the owner of the Toronto Star. It was in relation to a newspaper article that was published in that paper. The court, instead of an opinion piece, a year later was now grappling with a news report.

[1:35 p.m.]

In the first part of my speech, I talked about how journalists are often subject to defamation threats and actions, and they’re less successful than other actors when they’re sued for defamation. The court was trying to deal with this, trying to reconcile the Charter values of free expression with the tort of defamation, which was not set up to protect free expression. It was, in fact, set up, in my opinion, to repress free expression, to protect people with the ability to bring court actions. The court recognizes this to some degree in this decision when they take, as I say, the rough edges off it.

The background on this one is that Grant and his company owned a piece of land. There was a proposed private golf course that they wanted to do, and it bordered on Grant’s lakefront estate. A Toronto Star reporter went out and, of course, heard the opinions of local residents. As you would expect about something like this, they were critical of the environmental impact of the development. They were suspicious that Mr. Grant was working behind the scenes with politicians to exert political influence to get the thing approved.

The offensive speech, to the plaintiff, was that the article quoted a neighbour who said: “Everyone thinks it’s a done deal,” because of Grant’s influence, that he was improperly influencing a process of review of this golf course proposal. The reporter who got this quote from the neighbour reported on these concerns about improper influence and tried to contact Grant for comment about this. Grant chose not to provide comment, and the article was published with these concerns in it.

Mr. Grant responded to the article by suing the Toronto Star for defamatory speech. One of the defences that was used by the reporter, by the Toronto Star, was the defence of truth and the defence of fair comment. The issue was, obviously, that it was quite difficult to prove truth around this. In terms of fair comment, it’s a restricted defence. The jury rejected those defences.

The journalist at trial tried to say that reporters — when they go to someone for comment, the person chooses not to comment, and they have these allegations — should have the ability to report on that kind of thing without being sued for defamation.

The court has got to grapple with this, because at trial, under the traditional defamation action, this reporter definitely defamed Mr. Grant. He had no evidence that Mr. Grant had improperly influenced, other than the neighbour’s suspicions. He reported this in the paper, it was published, and it made people think less of Mr. Grant. It satisfied all the elements of the tort, but at the end of the day, the reporter says: “Look, these allegations were being made. I had an obligation to report it. I don’t feel one way or another about Mr. Grant. It was just something that I needed to do. Just because he doesn’t talk, it doesn’t mean I shouldn’t be able to do that.”

The court is trying to figure out: “Well, what are we supposed to do here? The plaintiff made out all the elements of the tort, but maybe the reporter has a point here. Maybe the Toronto Star has a point here.” That is actually what they conclude, in dismissing the case and saying: “No, there are no damages due here, and Torstar Corp. shouldn’t have to pay Mr. Grant any money.” The majority of the court says: “We want to modify this traditional law of defamation to make an exception for reporters. We want to provide greater protection for communications on matters of public interest.”

In this bill, when I start to go through it, you’ll see that it talks about matters of public interest. So 2009 is when the court first starts to talk about matters of public interest. There have been a bunch of cases since then, so it’s very fleshed out, and the bill incorporates that public interest test into the bill. It doesn’t change it at all.

The court says, with no uncertainty…. This is from the headnote: “The current law, with respect to statements that are reliable and important to public debate, does not give adequate weight to the constitutional value of free expression.” So they bring in section 2(b) of the Charter of Rights and Freedoms, even though it shouldn’t apply. It’s a newspaper company and a private citizen; the Charter shouldn’t apply. It only applies to government action, but they say there are these values — democratic governance, getting at the truth — that apply here, so we’re going to modify it.

The court again talks about…. There are certain terms they only see in judgments — one of them is this one — in defamation cases, “freewheeling debate.” The court talks about this. “Freewheeling debate on matters of public inte­rest….” It’s the court’s responsibility to encourage that and to safeguard it. “While the law must protect reputation,” it’s gone too far. The current level of protection is not justifiable — that’s, again, from the headnote of the case — because it provided absolutely no protection for statements on matters of public interest.

[1:40 p.m.]

I talked about what the court, in the other judgment, talked about — the rough trade of exchange in public debate and so on. The court comes back to that idea in more detail in Grant, and they say: “Look, we don’t want to insist that you have to have court-established certainty in relation to matters of public interest.”

I just noticed the red light. I thought I was designated speaker on this. I have a couple of hours.

Mr. Speaker: I understand you’re the designated speaker, so we will ignore the red light.

Hon. D. Eby: Thank you very much.

The court says: “Look, to require someone to be like a judge and have all the evidence and proof to a court standard in reporting on a matter of public interest will have the effect not only of preventing the communication of facts that a reasonable person would think reliable but also would inhibit political discourse.” It would inhibit a reporter from reporting what results in — what the court talked about in the other decision — investigative stories being spiked, never reported and, as the court noted, less offensive material coming in to fill the space.

The public might not notice the effect of this, but the effect is very real.

[J. Isaacs in the chair.]

The reason that I’m going into some detail on this is to provide some context, because there is a very real objection to legislation like the kind that we’re bringing forward — to say: “Look, the court already has protections around defamation, around free speech and so on, so this legislation is not necessary.” But it’s really important to understand these cases to understand why this legislation is actually necessary, to give effect to some of the things that the court is saying about the tort of defamation.

Welcome, hon. Speaker, to the chair. It’s nice to see you up there. Congratulations.

When the court looked around the world at what was happening in other common-law democracies about defamation law, the court said: “Look, we see what’s happening in other places. They’re changing their laws to allow more free expression and to restrict the use of the defamation tort. That favours us replacing the current Canadian law with a role that gives greater scope to freedom of expression while offering adequate protection of reputation.” The court says a right to free expression does not confer a licence to ruin someone’s reputation.

The way that the court comes to squaring this circle is to say: “We will create a new defence for publishers. They can escape liability if they can establish that they acted responsibly in publishing something, in attempting to verify the information, to go to the person — ‘Do you have a comment on this? Do you have some information to share with our readers? We have this allegation. What do you say about it?’ — and giving them a chance to respond.”

A publisher that gives someone a chance to respond and publishes responsibly could have a defence to a traditional defamation action. They modify the law to allow that kind of defence to go forward, which they felt was very important to protect journalists.

Now, the defendant doesn’t just have to show that they gave a chance to respond, but they have to show the publication was responsible, that they were diligent in what they tried to do. It wasn’t just like: “Oh, you know, we sent a fax, and nobody responded. We sent an email, and nobody responded. We knocked on the door, and nobody answered.” They have to be diligent in trying to verify the allegations.

Also, the court needs to consider the subject matter of the publication as a whole, that the defamatory statements can’t be considered by themselves. They need to be considered…. Is this a newspaper, or was this a one-time publication exclusively for the purpose of attacking the person? Then the defendant must show that the subject matter was one that invites public attention.

There are a number of different tests that the defendant also has to raise, which talk about the seriousness of the allegation, the public importance of the matter, the urgency of the matter, the status and the liability of the source of the information, whether the plaintiff’s side of the story was sought and accurately reported, whether the inclusion of the defamatory statement was justifiable, whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth, and any other relevant circumstances.

This is the point. That is all on the defendant. All the plaintiff has to do is say: “This was published. This caused people to think less of me, and I am entitled to damages.” Then they sit down, and then it’s all on the defendant to prove all of these other things and prove them on a balance of probabilities. And only by proving those things and addressing these circumstances can the defendant defend themselves against the lawsuit that’s been started against them. And it goes all the way to the final decision.

[1:45 p.m.]

When you consider the fact that this went all the way to the Supreme Court of Canada…. The Torstar media organization had to go through three levels of court, a full trial, and prove all these things, and all that Mr. Grant had to do was prove that somebody published something that made him appear to be less reputable to other members of the public. It’s very unbalanced.

It’s that lack of balance — that you can file the claim, that the test is set up like this, that all the work has to be done by the defendant — that leads the tort of defamation to be at particularly high risk of being abused to stop someone from talking about something that you would like them to stop talking about, by filing a lawsuit.

That takes us to 2009. In Ontario, the Supreme Court of Canada cases came down, people were talking about them, those defences started to roll out, and people were using them in court. Yet still there was a sense that the tort of defamation was being abused by people with means — people who were able to threaten lawsuits to stop someone from talking about something that they don’t like them to talk about. They’d just threaten a lawsuit to stop them from talking about it, because all the advantages are conferred to the plaintiff in this tort.

Ontario commissioned the Moran review of defamation law, the Moran panel. And I’m indebted to Jeremy Shragge, a lawyer in British Columbia who wrote a paper on this, detailing some of the background on the Ontario Moran panel. In 2010, they released their recommendations to the public about how we can fix this, how we can address this issue — this imbalance between the plaintiff and the defendant and the fact that this appears to be inhibiting free speech and appears to be preventing people from the freewheeling rough trade of public debate about the issues that matter.

They released their report in 2010. They had a bunch of submissions from individuals and organizations. At the end of the day, this panel, which was independent of the Ontario government, “was persuaded that threats of lawsuits for speaking out on matters of public interest, combined with a number of actual lawsuits, deter significant numbers of people from participating in discussions on such matters.” And they said that there was a need for Ontario “to enact legislation against the use of legal processes that affect people’s ability or willingness to express views or take action on matters of public interest.”

This was in 2010 in Ontario. It’s a whole lot of water under the bridge since 2001, when B.C. introduced its first legislation to control the use of the law in this way. It’s ten years later. The Moran panel said: “There are a couple of elements that we’ll look for to make sure that a law that’s brought in to deal with this type of abuse of the law is reined in.” They said: “We want to see that there’s an expedited process, that things happen faster.” So if you’re sued for defamation, you can get in front of a judge faster, you can get a decision faster, and you don’t have to go through the whole trial to get a decision.

We also want to see a reduction in the economic burden that these types of lawsuits place on defendants. There’s any number of ways that the law could do that, but that’s a factor that we would look for to see whether or not it’s an effective law.

We also want to see economic disincentives to the filing of these lawsuits in the first place. We want to make sure that people are really committed to actually following through, that they’re actually injured, that they actually have the desire to go ahead with this and that it’s not just to stop someone from talking about something that makes the other person feel uncomfortable in relation to something they have an interest in, because we want to protect free speech.

The report also recommended that there be a broad scope of protection, keeping the then recent Supreme Court of Canada decisions in mind, which I’ve taken you through.

Now, one of the key comments of the panel that was relevant to the 2001 law that we had in B.C. is that they were pretty critical of the 2001 law, in particular that the 2001 law in B.C. required you to prove that the person who was suing you had a bad motive, that they intended you harm by filing the lawsuit against you. It’s a very difficult thing to do, to prove that.

The Moran panel said that as a result of that, that law is not as effective as it could have been. So we think that future laws should not rely on the motive of the plaintiff, if we can avoid it. They said: “Judging the motive of a plaintiff is likely to be difficult and often impossible in an expedited proceeding.” The effect that the action is likely to have on expression, on matters of public interest, should not require the judge to read anyone’s mind and would be more readily supported by evidence. I’m paraphrasing that last bit.

[1:50 p.m.]

They say that instead of looking to whether the person suing, this person who is expressing themselves…. Instead of trying to figure out whether they’re doing it for a bad purpose, why don’t we just look and see what the effect of it is? Is it a matter of public importance? Is it stopping this person from talking about it? Is it interfering with the public hearing something that’s an important communication about this matter of public interest?

They set out a proposal around their procedure for identification and dismissal of these lawsuits at an early stage, not at the end of trial, which was the case before this law was introduced in Ontario. First, does the expression that is the subject of the lawsuit involve a communication on a matter of public interest? As I said, this is something that the Supreme Court of Canada has considered and many courts have since they did in Grant v. Torstar in 2009.

If it’s shown to be on a matter of public interest, then immediately the responsibility to provide proof to the court, the onus, should shift to the plaintiff, the person who’s bringing the lawsuit. The plaintiff should have to show on the factual record that the plaintiff actually has a decent case. The plaintiff should have to show that there are grounds to believe that the defendant has no defence.

What the law should do is it should shift responsibility from the defendant to the plaintiff, the person who’s bringing the lawsuit, which is the way it is in most personal injury actions and torts that are brought in front of the court, except in defamation. Defamation is one of the only torts where you see that the defendant has all the work to do, not the plaintiff.

Finally, if the plaintiff meets those tests, the court should consider, in all the circumstances, whether the action is for an insignificant harm yet has a significant impact on free expression.

It may be that the court looks and says: “Okay, got a good case. You’re likely to be able to prove it. The other person probably doesn’t have a defence. But even if you’re successful, this is such an insignificant harm that you suffered. It’s a very small case, but the impact that you’re going to have on free expression is significant. So even though you’ve got a case that could succeed and you’re going to get an award of $500, we’re going to say the impact that this has on free expression is too much. We’re going to say that person should be able to make the remarks that they’re making for the purposes of furthering public discussion and debate.”

The Moran panel is pretty clear. They trust judges to ensure that truly harmful or lawless behaviour is not encouraged in the name of public participation. The courts have made very clear that there is a whole category of lawless behaviour or harmful behaviour that is not protected in any defamation defence. I’ll go into those in some detail in terms of the different kinds of harmful communications as I talk about the bill.

The Moran panel also said: “Look, we need to make this less costly for people who are being sued.” Short deadlines for the documents to be served and responded to, an expedited hearing…. This is important because you’re going to see it again in the bill. You’re going to see all of this. The reason why I’m talking about the Moran panel is because this bill is based on what happened in Ontario — Ontario’s bill; I’ll go into why we did that — and Ontario’s bill was based on the Moran panel.

Short deadlines for replies, expedited hearing and the suspension of steps in the underlying action. I’ll go into some detail on that in the bill. But what it does is it puts a lot of pressure on someone, because if they want to stop someone from speaking, they have to suspend the steps that they’re taking in the other process that might be the subject of the person’s expression. It sounds complicated, but I’m going to go into it in a second and explain a little bit.

There should also be discretion for the courts to award costs to successful defendants. The court should be able to dismiss with prejudice. There should be some way for the court to recognize if, in fact, it’s obvious that someone brought a lawsuit for a bad purpose. There should be some way for the court to support the defendant, to recognize that the defendant was unfairly brought to court, and there should be damages available.

The court shouldn’t just be able to say: “This was a really bad lawsuit that never should have been brought. But actually, we think this guy who you sued should get a bunch of money from you because the lawsuit you’ve brought was so bad, was so poor, was motivated by such malice that we’re actually going to recognize that by making you pay this individual beyond just their costs, but additional costs as well.”

What was happening in B.C. at that time? Well, actually, most of what happened in B.C. was before 2010 when Ontario was doing all of that. In 2001, there was an anti-SLAPP bill introduced in the last months of the then NDP government by Attorney General Andrew Petter He provided quite a detailed set of reasons for bringing this groundbreaking legislation forward. I believe it was the first anti-SLAPP bill in Canada when he brought it forward at the time. He talked about the reasons why they brought it forward.

[1:55 p.m.]

History repeats itself. The Union of B.C. Municipalities had asked for this kind of legislation to be in place. Again, the UBCM has asked for this legislation to be in place — one of the reasons why it’s in front of the House today.

There was concern. He went through concern about the fact that it wasn’t necessarily the number of cases that are brought but that many cases that don’t even get to court aren’t even filed. Simply a threat of defamation action is enough to stop people from speaking, a concern that motivated the legislation in 2001, and it motivates it again here today in this place.

He noted that in other jurisdictions, they were moving…. At the time, 13 U.S. states had such legislation. The number is higher now. They had moved to address this issue in their jurisdictions.

He said they believe, believe it or not, that people should be able to stand up and speak on an issue that concerns them and to advocate in favour of a public position on issues without being the subject of litigation, without having to go and consult lawyers — or, if indeed they have to consult lawyers, without having to incur the full cost that litigation can impose upon them because there is no protection for their participation.

It sounds very similar to the concerns of the Supreme Court of Canada many years later and also Ontario’s concerns that resulted in the Moran panel and the recommendations there.

He talked about the concern related to balance of protecting reputation and protecting free speech, the same balance that we’re trying to strike with this legislation.

He also talked about the ability to get a quick dismissal of a claim and to seek costs if someone brings a lawsuit like this against you — that it shouldn’t be a huge financial burden that drags for years. There should be a expedited process.

But there is something that is different — a significant difference. That is something I addressed a little bit already, which is that the 2001 bill required the court to reach into the mind of the person who was bringing the lawsuit to find out if they were bringing the lawsuit for an improper purpose. It had to show that “a principal purpose for which the proceeding or claim was brought or maintained is an improper purpose.” That’s a very difficult thing to prove, and it was certainly acknowledged at the time by now Dr. Petter that it is very difficult to prove motive.

It is something that ultimately has been abandoned in other jurisdictions going forward to make sure that their legislation is effective. But as I say, at the time, this was quite groundbreaking legislation.

The goal of the legislation in 2001 is the same as the goal of the legislation now. Dr. Petter said: “It’s about time that people in B.C. have some legislative assurance and a tool that says to them: ‘Yes, if you stand up, if you are one of those in our society who is prepared to stand up and say controversial things and take on the issues, the Legislature is going to protect you from others who might want to prevent you from doing that.’” That remains totally unchanged.

Now, at the time, of course, in the opposition, Geoff Plant, then the critic for the Attorney General — later to be the Attorney General who actually repealed the legislation — objected to a number of points related to legislation. His main point…. He had two.

One is, paraphrasing, that there is no particular issue. You haven’t really proven that there’s an issue that needs to be addressed, and even if there is an issue — if I assume that you’re right and that there is an issue — the court has a bunch of mechanisms in place. Even in 2001, even before Grant v. Torstar, even before the Rafe Mair case, he believed that the court had a number of mechanisms to deal with these kinds of things — namely, rule 18A and other mechanisms.

Rather than paraphrase, to be fair to Mr. Plant, I’ll read a little bit from his speech. “Our rights and freedoms are of no value if a person is denied or delayed access to a court of competent jurisdiction to vindicate them. Yet that’s what this bill does. It does it deliberately. It deliberately seeks out to deny and delay access to the courts. It sends a message to those whose rights are infringed: ‘Don’t bother with a lawsuit. The courts are not there to help you.’ Any bill presented to any legislature should satisfy a series of tests. The first is this: is there some pressing and urgent problem that needs to be addressed?”

Later on he says, and he goes through a number of examples: “There is no problem.” Among other things, he cites that there is only one case that he could find that specifically mentioned strategic litigation against public participation.

[2:00 p.m.]

He continues, to say: “Rules 18 and 18A in the court” — these are rules of court that allow summary power for courts to dismiss claims — “provide the court with a summary power to dismiss unmeritorious cases after hearing some evidence in an application on an affidavit in an application that can be made summarily and can be dealt with expeditiously. It’s hard to see evidence of the problem, and secondly, in any event, if there’s a problem, the law already contains the tools for responding to the problem.”

There was a lively debate on the issues between Mr. Plant and Dr. Petter, both of whom have gone on out into public life to participate on many issues of public importance and to debate those issues. The interesting thing is that, to some degree, both were proven right.

Certainly, Dr. Petter was vindicated, in the sense that the court recognized, on multiple occasions, that people’s rights of free expression were being infringed by defamation actions, that this was a serious problem, that this was a big problem that the court needed to intervene in and create new processes, new defences for people, including journalists and commentators, to prevent their free expression from being interfered with. He was vindicated in that sense. I would say that Mr. Plant was vindicated in the sense that the court itself — in the absence of legislative action, because this bill was ultimately repealed — started to carve away at the defamation rules to allow free expression to continue.

Where, I think, the two parted company and it is still unresolved — where I agree with Dr. Petter’s approach and not Mr. Plant’s approach — is whether or not there’s a need for a process mechanism, a way to have the court be able to hear, at a very early stage, whether or not someone’s free expression is being interfered with and to deal it, as opposed to at the end of the trial, after the defendant has been put through all these hoops of having to prove all these different things, and the plaintiff has only had to say: “Look, someone made me look bad in the eyes of other people.”

That’s where the big departure is between the two, still today. As I say, both were vindicated on some points. But where we obviously — because we brought this bill forward — still agree with Dr. Petter is that there is a need for us to have a process in place for early resolution of this to prevent undue interference with freedom of speech, entirely consistent with the Supreme Court of Canada’s decisions and their dicta about section 2(b), the things that they’ve said in their cases about section 2(b), the free expression provisions — and actually supportive of providing the courts with the opportunity to do this.

In 2001, the anti-SLAPP bill in B.C. was repealed by Mr. Plant, who was then the Attorney General. The only comments I could find on the record that he made about this…. I’ll read them for you so that you understand the reasoning for repealing it. It was in a miscellaneous statutes bill that also repealed pay equity amendments to the human rights code and repealed a program to protect property from redevelopment that was held for affordable housing for seniors, so it was quite a bill.

In any event, Mr. Plant read this, in terms of explaining why the bill repealed the then act in B.C.:

“Finally, this bill repeals the Protection of Public Participation Act that was brought into force in April 2001. That act was created with the idea of intending to help persons deal with unmeritorious lawsuits brought against them. In fact, the act was too broad, and it has the potential to cause considerable in the court system and in British Columbia if it is misused by persons who in turn want to cause delay and expense to plaintiffs who are entitled to bring legal proceedings in British Columbia.

“In my view and the view of the government, the existing rules of the Supreme Court are sufficient to protect parties from frivolous and vexatious lawsuits and also to provide for remedies in the form of costs, where appropriate, to be awarded in appropriate circumstances. This bill contains a transitional clause that will protect the rights of anyone who has made use of the Protection of Public Participation Act during the period that it was in force.”

That’s the sum total of the remarks about why the bill was repealed — a very brief restating of his argument that he’d made in opposition, about why he didn’t support the bill and that the existing rules were sufficient.

In his defence — not that I spend a lot of time defending Mr. Plant — it was six years or seven years before the Supreme Court of Canada issued its decisions in Grant v. Torstar and on Rafe Mair, where the court said: “Yeah, actually, there is a serious problem here. Yeah, actually, we do need to deal with this.” He didn’t have the benefit of that, but still I disagree with the fact that he repealed what was a necessary provision.

This brings us to the act. The members are shocked; I’ve finally gotten to the act. This is really important, because it’s a short act, right? There are not a lot of provisions in the bill, and it’s hard to know why they’re there or what it’s about unless you know a little bit of the background. I’ve been very pleased to have the time to be able to go in some detail into this and assist the members in understanding why we’re bringing this forward.

[2:05 p.m.]

The first section, the definition section, is not the most exciting section of the act. I’ll come back to it to talk about administrative proceeding, because it is very broad. Also, “expression” is defined very broadly to include non-verbal communication. The only thing I’ll pause on in the definitions section is to say that there are things that this definition will not capture or, at least, it’s not intended to capture. It’s because the courts have been very clear about what expression does and does not include, and it imports into it all of the case law about expression and what expression does and does not include.

I’ll give you some examples of what expression does and does not include. First is expression that is beyond the pale of section 2(b) of the Canadian Charter of Rights and Freedoms. An obvious example is hate speech, as defined in section 319(2) of the Criminal Code. The court has been very clear that that type of speech is not captured within section 2(b) in section 1 of the Charter.

An act of violence does not count as expression, which should seem obvious to everyone, but sometimes it’s good to say it out loud, because you never know quite what people who haven’t had the benefit of this debate are going to say about a bill outside the Legislature. A threat of violence is not expression. For any member who is curious, I’m happy to provide case citations for these kinds of things to explain why expression, while defined broadly in the bill, under the case law in Canada is very clear about what it does and doesn’t include.

An act of violence or a threat of violence against others — not included. Now, you’ll note that the definition of expression is not qualified by words such as “lawful” or “appropriate expression” or “good expression” or anything like that, because that’s exactly what we want the court to determine. We’re setting up the procedure for the court to determine whether the expression is in fact lawful, is in fact appropriate, is in fact protected. It’s up to the court to determine that. We didn’t put it in the definition because that’s exactly what we want the court to determine, and it’s necessary for the court to determine that.

Section 2. I talked about this a little bit, in relation to the introduction. The act applies “in respect of proceedings commenced on or after May 15, 2018.” In introducing the bill the first time, that bill applied to all defamation actions that were currently underway.

I know this will be of some concern to people who are currently participating in defamation actions, whether willingly or unwillingly, who may have been hopeful that this bill would apply to them. I will note that the intention here is to provide people with notice that in fact the rules have changed. The reason why we have the date of effect being May 15, 2018, and not royal assent, is that we don’t want a bunch of people running down to the court registry and filing defamation actions to try to get them in before the date of effect.

We want to make sure that people have notice that the rules are going to change and conduct themselves accordingly, but prior to this bill being introduced, people made decisions about whether or not go to court, how to conduct defences, and so on, and we didn’t want to have undue interference with that. I wanted to provide a little bit of background on that.

Section 3. The background of this one, which talks about qualified privilege, sounds really technical. “If an oral or written communication on a matter of public interest, between persons who have a direct interest in the matter, has qualified privilege, that communication has qualified privilege regardless of whether the communication is witnessed or recorded by the media or other persons.”

What does that mean? It has some significance for people who may be sued for defamation. One defence, if you’re sued for defamation, is called qualified privilege, and that can be communication by and to persons who share an interest in the matter being communicated. But if somebody else hears that communication and reports on it, then you lose that defence.

If you’re talking to some people, you have a direct interest in the matter and you’re talking about it, you definitely have the defence of qualified privilege. If a journalist overhears it and reports on it, you lose the defence. This doesn’t change the rule of qualified privilege. It doesn’t change anything related to that, but what it does do is it allows for reporters to do what they do, which is report, without jeopardizing somebody’s ability to raise the defence of qualified privilege. It is not a change to the law respecting qualified privilege generally.

[2:10 p.m.]

Section 4. This is the heart of the act. It doesn’t seem like a whole lot. It’s two subsections, but this is the key of it. The purpose of the act is to protect expression on matters of public interest.

You’ll see here that it doesn’t talk at all, as the 2001 bill did, about the need to inquire into the motivation of the person who filed the lawsuit. The act, under this application section, allows the court to balance the effect of the expression on the harm suffered from plaintiff in terms of the importance of the expression.

It’s exactly what I was talking about with the Supreme Court of Canada — how they were trying to balance that people have a right to personal integrity under the Charter, that they have the right to their reputation and that people also have the right to free expression. How do we do that balancing exercise?

This application to court allows for the court to do the balancing. It doesn’t try to do the balancing for the court. It says: is this matter relating to public interest? Then it goes into why it may or may not be subject to this protection.

There are two subsections, as I said. Section 4(1) talks about matters of speech that are of the public interest. As I said, that is something that the Supreme Court of Canada has considered in some detail.

Importantly, and importantly for this bill, in the pendency of the time from when we first introduced this bill to today, the Ontario Court of Appeal released the decision where they considered the Ontario bill. They went through it in some detail, and they said…. They made lots of comments about the Ontario bill, and it has a lot of relationship to our bill, because our bill is based on the Ontario bill.

Members who are particularly interested in this would be well advised to check out the Ontario Court of Appeal decision, 1704604 Ontario Ltd. v. Pointes Protection Association. You can guess who was bringing the defamation action and who was alleging a SLAPP in that confrontation, and your imaginings would probably be correct. It was the Pointes Protection Association that was accused of defaming 1704604 Ontario Ltd.

The Ontario Court of Appeal said that public interest should be broad. They imported the whole jurisprudence from the Supreme Court of Canada around public interest. Potential subject matter is totally wide-ranging. It could be politics. It could be science and the arts. It could be the environment. It could be religion. It could be morality. There’s not a limit to the number of topics or subjects that are matters of public interest.

The court, though, did recognize the limit the Supreme Court put on matters of public interest, which said that it does not extend to matters of mere curiosity or prurient interest in which the person concerned has a reasonable expectation of privacy. There is a limit on what is a matter of public interest, for certain.

Section 4(2). If you make the public interest test and so on, it’s important to recognize that 4(2) is not an alternative to trial. It’s not a summary judgment. It’s a judicial screening. “It’s a triage process,” the Court of Appeal said in Ontario, “designed to eliminate certain claims at an early stage of the process.”

It talks about, and it’s probably worth going through it, 4(2): “If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1)” — that is, a matter of public interest — “the court must make a dismissal order unless the respondent” — that is, the person who brought the lawsuit in the first place. The person who brought the lawsuit in the first place has to satisfy the court that, first of all, (a) there are grounds to believe that the proceeding has merit: “My lawsuit is a good one.”

The second is that the defendant, or the applicant, has no valid defence in the proceeding: “Not only is my lawsuit a good one, but this guy’s got no defence.” Then secondly, the harm likely to have been or that will be suffered by the respondent as a result of the expression “is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression,” and that’s the balancing test: “I’ve got a good case, this guy’s got no defence, and the subject matter is not so serious and not so important that it outweighs my right to protect my reputation.”

In all of that, you’ll note, the burden is on the person bringing the lawsuit to prove these things. It is no longer on the defendant or the person being sued to prove these things. That shift in the onus or the responsibility to show that to the court is critically important.

[2:15 p.m.]

Now, the term “grounds to believe” — what does that mean? It should be understood as “reasonable grounds to believe,” according to the Ontario Court of Appeal, with which we agree that that is the intent. The plaintiff, the person who’s suing somebody else, does not have to satisfy the court that it would win but only that there’s reason to believe or there are grounds to believe the lawsuit has merit and that there are also reasons to believe that the defendant has no defence. This isn’t the case itself. You just have to show there’s a reason to believe these things.

There’s a reason for separating out that the case has substantial merit and that there’s no valid defence. In defamation, there’s a big difference between proving that somebody said something about you that lowered your reputation in the community and the defences that are available to someone who’s being sued. There’s a big departure between these two, so they’re separated out here in the bill as well.

For example, a defendant can say: “It’s true” or “I have the defence of qualified privilege” or “I have the defence, through Grant v. Torstar, in relation to responsible communication for journalists” or “I have the defence from the Rafe Mair case, in terms of, ‘This is my opinion on the facts, and I have a right to my opinion and to express my opinion, and I reasonably hold that opinion.’” In all these different defences, the person who is bringing the lawsuit has to show that the person who is being sued has no defence and that there’s no way to justify what they did.

I would definitely recommend to members who are particularly interested in this a read of the Ontario Court of Appeal decision. I’ll truncate my remarks about the case a little bit there. They go into some detail in terms of judicial analysis of a bill that in many respects is almost identical to British Columbia’s.

Section 5, no further steps. This is a big deal. Remember when I talked on the Moran panel? They said: “Look, you need to make there be a financial consequence. You need to make there be a financial consequence, a consequence for bringing an action that will discourage people from bringing these actions unless they’re really serious. If you don’t have that, people are still going to file them.” A cost award for someone who’s very wealthy is going to be a relatively minor thing, and they’ll still bring these actions.

This section 5 is called “No further steps.” If you sue someone like this and they bring an application to say, “You are interfering with my free expression. This is matter of public importance. I want the court to determine this under section 4,” everything stops on other proceedings that the expression is related to.

If you are Mr. Grant and you are making an application to put in, using Mr. Grant as an example — he is from the Torstar case that I was talking about earlier — a private golf course…. You have an application for rezoning in front of the municipality, and the person was talking about that — in this case, a reporter from the Toronto Star. If you want to sue that person for defamation and that reporter brings an application against you under this bill, everything stops in the rezoning hearing until this matter is resolved.

The reason for that is we want to encourage people to resolve these things really quickly, on both sides, so it’s a lot of motivation to ensure it’s resolved quickly. Secondly, that it’s really serious — that the defamation is so serious that a person says: “Yes. Heck, yes. We’re going to put this thing on hold, and I want to sue this guy for saying that I was improperly interfering with politicians on this.”

It’s a test, really, for a person to make sure that it’s worth their while to go through with this. It increases the cost to go to court, in a way that is more than just money, to address the issues of an inequality in resources. It’s a significant section of the act. I draw members’ attention to that.

Section 6. This one says: “No amendments to the pleadings unless permitted.” It sounds very technical, but the issue is that you bring the lawsuit, you sue the guy, and he’s successful in getting a lawsuit dismissed under this bill. You say: “No problem. I’ll just slightly modify my claim. I’ll bring it back in front of the court again, or I’ll seek leave to amend my pleadings to include something different or to include something more. Now that I’ve lost, I’ll just do it again.” Then you’re stuck in an endless cycle of going back and back and back on applications. It achieves the same intent as if the whole thing went to a full trial, and it defeats the purpose of this bill.

This prevents you from going back to amend your pleadings or your documents that you’ve filed to start the lawsuit in order to try to avoid an order to dismiss the proceedings. You’re not allowed to do that. That’s captured by the bill.

[2:20 p.m.]

Section 7 is costs. This creates an assumption. It allows the court to make a determination on this. But if the court makes a dismissal order and says, “No, this is an interference with free expression. This is a problem, and we’re going to stop it,” the person who asked the court to make that determination — the defendant, usually — is entitled to costs on the application and in the proceeding, unless the court says that the assessment is inappropriate in the circumstance. It gives the court a safety valve if they want to not give costs to someone for some reason, if they behaved particularly badly or something like that.

Section 8. You’ll remember that one of the big differences between the 2001 bill and the bill that’s in front of the House today is the need to prove the motive of somebody who has brought the lawsuit. In 2001, you had to prove the motive that they did it for a bad purpose. In this bill, you don’t have to prove that. You just have to prove the impact on free expression. That’s a big difference between the two bills.

You’ll see here that in section 8, it talks about damages if the respondent brought the proceeding “in bad faith or for an improper purpose.” If you are able to prove or if the court finds that the person sued you in bad faith or for an improper purpose, this allows the court to give damages to the person who was sued, to say that you are entitled to some compensation for being dragged into court for a bad purpose or an improper purpose — again, a recommendation of the Moran panel out of Ontario.

Section 9 talks about the procedure on an application in one of these things. It’s in accordance with the existing Supreme Court civil rules, subsection (1). The second is that an application for one of these dismissals can be made at any time in the action after it’s been started. Once it’s been made, it needs to be heard as quickly as possible.

You’ll remember from Moran that they said these need to be heard as quickly as possible in order to minimize the financial impact on individuals.

Evidence must be given by affidavit. That’s a sworn document; that’s not testimony in court. It’s a paper-based process. It still provides the ability for people to cross-examine on affidavits, but you’re only allowed seven hours max. There’s a restriction on that, all in the name of getting this resolved as quickly as possible — whether the case can go on or whether it has to stop. The court, again, is given the discretion to extend or limit cross-examination as necessary.

Section 10. One of the problems is: you set this up, and then someone appeals and appeals and appeals. Then the person is in court for years anyway, even though they’ve been successful in proving that this was an interference with their free expression. So this section is simply a direction to the court that an appeal of a dismissal order under this act must be heard as soon as practicable.

This would be something that would be used by someone in court to say: “Look, they’re engaging in delay tactics. They don’t want to get in court on the appeal. It needs to be heard as soon as possible.” The court will step in and address that issue, we hope.

Section 11. It talks about a stay of administrative proceedings. This is a further detail about…. Pardon me. You know what? I conflated my sections. This is the section I was telling you about that nothing goes ahead in relation to whatever the underlying project is or issue is that the person was speaking about. Nothing continues until this is resolved.

The other section I was talking about said you’re not allowed to take any further steps in the litigation. So you can’t sue someone for defamation. They bring an application to have it dismissed, and then you keep going as if it didn’t happen. Everything stops in the lawsuit as well. Everything comes to a stop once one of these applications is filed. Then all the rules say that this needs to be dealt with as quickly as possible to ensure fairness to the plaintiff and to ensure fairness to the defendant — to get it resolved as quickly as possible.

Section 12. It was not the intention of this bill to create any other rights or remedies or interfere with them — any other rights or remedies that might be available to people. So when Geoff Plant was talking about rule 18 or 18A, or whether you’re talking about the Supreme Court of Canada decisions where they might have given different rights to defendants or plaintiffs, under defamation, this act is in addition to those. It’s not meant to take away from any of those rights that might be available to either the plaintiff or the defendant.

Section 13, the Offence Act. It’s a fairly standard provision of a lot of acts, simply to say the Offence Act doesn’t apply here. We’re not trying to create a provincial offence.

Finally, the coming-into-force date. Now, keep in mind that there’s already a section that says that this is for cases filed on or after May 15 of last year, and the act comes into force on the date of royal assent. So it can be made use of, where appropriate, as soon as possible. It won’t come into effect by regulation, because we believe there is urgency in getting this legislation into place.

[2:25 p.m.]

That brings to a close my remarks on the bill — the reason why we brought the bill; the text of the bill that’s in front of the House; and some of the background in relation to the defamation tort, traditionally and as it’s evolved through the Supreme Court of Canada. We’re not trying to displace that jurisprudence or those decisions of the court, the direction of the court. We’re attempting to provide greater effect to it by providing a procedural remedy, where people can have this considered by the court sooner, rather than at the end of the trial, so they don’t have to spend their life savings defending themselves in court in multiple years. They can have it dealt with right off the bat.

With that, I take my place.

Deputy Speaker: The member for Vancouver-Langara.

M. Lee: Thank you, hon. Speaker, and welcome to this post. It’s great to see you there.

I’d also like to congratulate the Attorney General on his good news on the addition to his family. Congratulations. Also, two other positive comments to say that you made it through the sniffles and with the throat. I’m surprised you didn’t have any throat lozenges, but you got through it with all the Kleenex.

Also, I’d like to thank the Attorney General for having this unplanned opportunity to be able to go through, with full detail, the background and the underpinnings to this bill. That was very helpful, I’m sure, to many members of this House, those who are listening and not those who have been conversing while the Attorney General has been talking. I did appreciate that effort.

I rise today to speak to this Bill 2, the bill entitled Protection of Public Participation Act, which, as the Attorney General has summarized, is closely modelled on the Ontario legislation with a very similar intent.

As the Attorney General has gone through in great detail, this House has previously seen legislation of a similar nature when, in April 2001, the government of the day passed an anti-SLAPP statute, which was later repealed by the government that followed a few months later.

This legislation, as the Attorney General has summarized, does provide a more nuanced approach and does eliminate some of the initial concerns regarding that legislation, as also commented on by the Ontario review panel in 2010. Of course, this legislation that’s coming forward under Bill 2 today — putting aside what happened in the third session on Bill 32, which I will comment on later in my remarks — does have the benefit of being able to draw upon similar legislation from other jurisdictions.

In February of 2018, February 7, the Attorney General did receive a letter authored by a number of leading former justices of the Supreme Court of Canada; former Attorneys General of this province; a former Premier of this province, Hon. Ujjal Dosanjh; other academics; and my old law professor at the UVic law school, Chris Tollefson. I know that in that letter, of course…. I would just like to comment on the introductory words in this letter, which I think are important for this House to keep in mind as we go forward. “Public confidence in the administration of justice is critically important. The justice system is currently experiencing many challenges, notably the insufficiency of legal aid and the prevalence of delay.”

I appreciate the effort of this government to bring forward and address something that has been of concern, as the Attorney General has overviewed and provided an overview to this House, but I would say that there are other pressing matters with how we deal with the reform of administration of justice in our province and that legal aid continues to be a pressing need. In terms of ensuring that we have access to justice and the delays of the courts in dealing with various claims, there may be, of course, some benefit to this legislation — although, as the Attorney General indicated earlier, we have not seen, and it’s hard to determine, how prevalent SLAPP suits are in Canada.

[2:30 p.m.]

[R. Chouhan in the chair.]

Before I go back to that point, I’d just like to say that the authors of that letter to the Attorney General clearly indicated that in their view: “Defendants of SLAPPs are exposed to onerous financial and emotional costs incurred in a process that attacks their individual right to speak on matters of public interest and chills citizen engagement more broadly.”

We have seen a variety of U.S. states that have adopted anti-SLAPP statutes. However, the scope of those statutes varies widely. Some of those statutes only apply to actions brought by public applicants — others, to speech seeking to influence decisions by political branches of government. In jurisdictions such as California, it’s been identified by some that anti-SLAPP legislation has reduced the number of proceedings in their courts.

This bill’s scope is fairly broad, much like the statute passed in California in 1992 and also subsequently in Oregon, Washington, Louisiana and Oklahoma. The U.K. also updated its defamation law in 2013 under the Tory–Liberal Democrat coalition led by David Cameron. That update sought to better protect speech on matters of public interest from defamation claims.

With this context in mind, we do have some concerns with this bill, most of which will be discussed at the committee stage. For the purposes of second reading, I’ll provide some comments on this.

As I just mentioned, I think it’s important, when governments introduce new legislation, to consider what the problem is, to identify what the evidence is that we’re trying to address. So the question that will be asked, which the Attorney General did partially address, is the analysis of caseload by the B.C. Supreme Court or other courts of our lands in dealing with abusive lawsuits.

As I mentioned, there have been others, of course, who have done the research and come to a conclusion that it is difficult to know precisely how prevalent SLAPP suits are in Canada, not least because many individuals and groups are effectively, perhaps, dealt with by a mere threat of a suit but also having a case filed against them. There are certainly…. The Attorney General characterizes this as a bit of a tip-of-the-iceberg situation. That’s hard to know.

Having said all that, I do acknowledge, of course, as we all do in this House, that it’s fundamental to our rights as citizens in this country, as expressed by the Supreme Court of Canada, that freedom of expression and respect for vigorous debate on matters of public interest have long been seen as fundamental, or fundamental to Canadian democracy.

Many years even before the Charter, the Supreme Court of Canada suggested that the Canadian constitution contained an implied right of freedom of expression on political matters. In 1982, of course, the Charter, through section 2(b), confirmed and expanded the constitutional protection for freedom of expression, mainly extending it to the press.

I’ll just read it again, as the Attorney General cited. He did cover some of the ground that I intended to cover in my remarks, but I think it’s an important understanding. The quote is that everyone has “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

The constitutional status of freedom of expression under the Charter means that all Canadian laws must conform to it. This is something we’ve seen at least since 1982. The laws of defamation in our country have continued to modify to meet this reinforced standard that has been made more explicit in our Charter.

[2:35 p.m.]

As the Attorney General mentioned, we have also had rules of court in our province, our civil rules that have been developed over decades. The current rules, like rule 9-5, state that “at any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be, (b) it is unnecessary, scandalous, frivolous or vexatious, (c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (d) it is otherwise an abuse of the process of the court.”

These are the four subsections which are in our current rules. They have been there for some time. In dealing with any abusive court cases, these rules are the tools which a court may employ, certainly, to pronounce a judgment or to order that a proceeding be stayed or dismissed and to order costs, such as special costs.

This power of the court under these rules may be exercised at any time and any stage of the proceeding. For example, an application could be brought the day after the writ of summons is filed.

Rules of court also grant power to award special costs, including having the plaintiff who is the subject of the application pay all of the costs incurred by the defendant in defending the action — that is, if the proceeding falls within this relevant role. Rules 9-6 and 9-7 also provide the court with the summary power to dismiss unmeritorious cases after hearing some evidence in an application on an affidavit.

The major issue that arises out of this bill is the weighing of the public interest between two perspectives. This, I think, is what we’ll discuss at length at the committee stage because the bill, in its current form, does not seek to define what public interest means. As the Supreme Court of Canada has cited, Lord Denning has said there is no definition in the books as to what is a matter of public interest. He certainly would not confine himself within narrow limits. So it’s to be looked at broadly.

The Supreme Court of Canada stated: “To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public…has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.”

The Attorney General also made this quote, but because it’s in my remarks, I’ll continue. “Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.”

When the Court of Appeal for Ontario, in the decisions that the Attorney General cited, applied the equivalent Ontario public interest protection act, the court stated that the authorities offered no single test for public interest, nor a static list of topics falling within the public interest. As we’ve covered, guidance, however, may be found in the cases on fair comment and subsection 2(b) of the Charter.

In short, the judgment of public interest is case-specific. This means that the judiciary very much holds the entirety of the responsibility for ensuring that this bill, in particular the judgment to be applied in subsection 4(2), is implemented fairly.

[2:40 p.m.]

Overall, in Canada in particular, this is still a very novel and untested area of the law. This is why I believe that it’s our duty as legislators in this House to ensure that the legislation that we have in front of us is framed properly, because we are shifting the burden under this bill from what has been built up under common law, under our defamation law and under our rules of court, mechanisms that have already been in place to ensure protections for freedom of speech while balancing interests of reputation.

Having said that, at the committee stage, I believe that we should be discussing and considering the definition of “public interest” in subsection 4(2)(b), in particular, where the balancing occurs, and whether there should be some clear limits placed on the definition of public interest for the purpose of this bill to ensure that it is the motivation that is expressed in this bill that we’re protecting freedom of expression and the preservation of our democracy, and nothing else, so that key among the ideals of this bill is protecting respondents from defamatory or spurious claims.

We will be addressing the idea of balancing one public interest against another, which is how this becomes a concern — the public interest as viewed by the plaintiff versus the public interest as viewed by the defendant. The interests, of course, will conflict, as from the perspectives of the plaintiff and the defendant.

The decision that the Attorney General went through in detail, of the Supreme Court of Canada in Grant v. Torstar, certainly is something that we would acknowledge. Former Chief Justice McLachlin wrote that while the law must protect reputation, the current level of protection — in effect, this regime of strict liability — is not justifiable. She went on in that decision, in 2009, to say that the law of defamation should therefore be modified to recognize a defence of responsible communication on matters of public interest.

This is one of the examples as to how the law of defamation in Canada has been modified over the years, particularly since the Charter. In that decision, the Supreme Court modified the law around the tort of defamation to recognize a defence of responsible communication on matters of public interest.

As the Attorney General went through in detail, there are a number of requirements as to how this new defence would be applied, including the diligence that would be required to verify the allegations that might have been stated. The concern on this bill will be, as we look at the committee stage level, how this bill again would expand effectively, in effect, the protections of freedom of expression from a lawsuit alleging defamation.

The Ontario Court of Appeal has looked at this definition and applied the legislation and found that the key motivator for the cases was that there is a distinction between statements or other expressions that make a reference to something of a public interest and expressions that relate to a matter of public interest. That may be a fine distinction.

Having said that, the Ontario Court of Appeal has further ruled that public interest does not turn on the size of audience. Especially in today’s world, communications of private matters can find very large audiences quickly. I believe in that statement, of course. We need to recognize how statements are made, including through social media and other forums. The court goes on to state, on the other hand, that statements between two people can relate to matters that have had or have a strong public interest component.

[2:45 p.m.]

As I’ve said, the concern is that as of right now, Canada lacks a clear articulation of a test or factor analysis to determine what falls within the public interest. I would suggest that we should consider the affirmation of some of those fundamental principles to aid the judiciary through our legislative role so that the public interest is strengthened by this legislation.

For example, an excellent place to start to consider this would be to look at the unwritten principles which underlie our constitution, as enumerated by the Supreme Court of Canada in the Reference re Secession of Quebec opinion. These principles include democracy, the rule of law, the independence of the judiciary, the protection of civil liberties and respect for minorities. I would think that we all can agree in this House that protecting such principles is in the public interest.

Of course, underlying all of this is the overarching concern that, to the extent this legislation is not properly balanced, it could potentially deprive plaintiffs of legitimate remedies for harm caused by parties purporting to act in the public interest. For example, defamation law provides a careful balance between freedom of expression and protection of reputation. In this legislation, under Bill 2, protecting more expression under the name of public participation may distort that balance and create undue harm to reputation.

The heart of Ontario’s anti-SLAPP legislation was recently described by Justice Doherty of the Ontario Court of Appeal as proving that a lawsuit has merit. The harm the plaintiff is suffering can be monetary or non-monetary, such as reputational damage or infringement on personal privacy. However, the plaintiff must provide a basis on which the harm or potential harm can be determined.

Thankfully, at least from the plaintiff’s perspective, the plaintiff is not required to have a fully developed damages brief. But assuming the plaintiff must have a commonsense reading of the claim supported by sufficient evidence to connect the challenge expression and damages….

These are the sorts of concerns and considerations I believe we should be reviewing at the committee stage, and that would be our intention. I must also say, though, as I mentioned at the outset, that I am concerned as to why the previous version of this bill — which was Bill 32 in the last legislative session, which was left to die on the order papers — has now been revived by this almost identical bill. The only difference, of course, between Bill 32 and Bill 2 is the timing at which this bill or legislation would have effect.

Bill 32, in the previous formulation, would have applied retroactively to all legal proceedings whether or not they had commenced before that bill’s introduction to this legislature. That component certainly was not introduced in the Ontario legislation, and I find it troubling that it was included by this government in that prior bill. For reasons that were unclear to us, that bill was not brought forward.

But now, clearly, with the introduction of Bill 2 in this current formulation, it is clear. It must have been identified to this government as to the concerns around the retroactive nature of the application of this legislation, which raises the question as to why this government brought forward that legislation in that form to begin with. Certainly, I would have expected that the Attorney General and the government would appreciate the concerns that would arise from the retroactive application of a law in respect of questions around natural justice and procedural fairness — principles that are articulated in our Canadian constitution.

I would like to canvass this at the committee stage: why this government brought forward that legislation in that form, with that retroactive effect.

[2:50 p.m.]

Why was it so important for this government to have that apply in that way, particularly when the Ontario equivalent legislation did not have that component? It raises the question as to what the intent of this government was. Certainly, they felt the need to introduce that legislation. The implications as to the number of cases that it would have disrupted in the court system would have led us to more delay and backlog.

With that, I look forward to canvassing these concerns with the Attorney General and others at the committee stage, and that completes my remarks.

A. Olsen: It’s my pleasure to stand today and speak to Bill 2, the Protection of Public Participation Act of 2019. I think that it’s important to frame my very brief comments on this bill with the amount of correspondence that I have received in support of the legislation that was proposed last year, as was raised by the member who spoke previously.

I know this is an issue — the SLAPP suits, anti-SLAPP legislation or the Protection of Public Participation Act that we see in front of us today to debate — that is of particular interest to my constituents. I know that as someone who’s been in local government, I’ve seen how this has impacted citizens in my community over the years, how they have been participating in public processes — involved in their communities and involved in ensuring that their municipality and their local governments and, indeed, the provincial government are undertaking good process — and having every right to stand up for themselves and for their rights as citizens and individuals in a community and how they have been chilled by being served.

I know my colleague is going to speak to this, so I’m not going to speak at great length to this. But in many respects, just the act of someone standing on your front doorstep and serving you with legal documents — and in large part, people that have never had any relationship with the law in that way at all — has a way of crippling your willingness to participate in these public processes.

So I’m certainly pleased to be able to stand on behalf of the numerous constituents from Saanich North and the Islands and beyond who have contacted me to say that this has had a negative impact on their lives — the strategic lawsuits against public participation and how that has impacted their lives. I’m pleased to be able to stand today as the government is putting forward legislation to deal with this.

I know that 20 years ago anti-SLAPP legislation was repealed by the former B.C. Liberal government. One of the points that was made — which I find kind of troubling, in one of the quotes — is that they were concerned about it creating a “protest culture.” I think that it’s important that we acknowledge that what evolved instead in this province was a culture of entitlement.

As we are making sure that we protect the public interest…. And I respect the member who spoke previously about the important debate that I think the two legal minds on both sides of this House are going to have during the committee stage. I certainly look forward to witnessing that and participating as my rather small legal mind can.

I would just say that I think that it is important that we have that discussion about the public interest, because that’s clearly what our main role here is in this place. It’s to protect and to act in the public interest.

[2:55 p.m.]

As we work towards reinvigorating that in our province, taking the focus away from the special interests and private interests and working on behalf of the public interest, I’m heartened by the government’s efforts to discourage the use of litigation as a means to unduly limit the participation of the public. I look forward to the debate, as I mentioned.

Frankly, I would have spoken a lot longer on this, but the member for Vancouver–Point Grey, our Attorney General, must have got hold of my notes. Without being repetitive, I would say that he did a very thorough job of explaining his bill, and I look forward to engaging at the committee stage of this debate.

S. Furstenau: It’s my honour today to rise and speak to Bill 2, the Protection of Public Participation Act. Inasmuch as my colleague from Saanich North and the Islands was brief, I may go the other way, because this is an act, a piece of legislation, that speaks to a very personal experience for me in my community.

I’m going to tell this story, and I’ve told it many other times in this House. But the reason I tell this story over and over again is because it relates to so much of the work that is happening in this House under this current government.

From the very beginning, the Shawnigan community was abundantly and consistently clear that we did not accept the risk that a contaminated landfill posed to our watershed and our drinking water. Right back to 2012, the community had been standing up and saying no.

The Shawnigan Residents Association hired an independent scientist to assess the proposal, the site and the engineering. Their opinions were clear. This was an unsuitable location, and the landfill would, indeed, pose a threat to our water quality.

The community began its efforts to engage with the provincial government right from the outset. Hundreds voiced their concerns at a public meeting in July 2012, and hundreds more wrote letters once the draft permit was issued.

Citizens John and Lois Hayes and Rick Saunders filed their own appeals of the permit when it was issued, along with the Cowichan Valley regional district and the Shaw­nigan Residents Association. The Environmental Appeal Board hearings took 31 days over five months, and many of us attended and watched on line, learning about the serious concerns of the independent experts.

We were also shocked by what we perceived as blatant unfairness during the hearing, particularly when the panel refused to allow evidence or to hear witnesses that were brought forward by the Shawnigan Residents Association. Indeed, we were vindicated in this four years later by a B.C. Supreme Court ruling by Justice Sewell, who wrote in his ruling, to answer the question: “Did the Environmental Appeal Board act fairly in its treatment of opinion evidence…?” Section 96 of his ruling: “I have concluded that the board did not act fairly in the manner in which it received opinion evidence in this case.”

We waited eight months for the Environmental Appeal Board to make its decision, and when it came, on a Friday afternoon, it was a devastating blow to our community. But we didn’t give up; we geared up. Nearly 300 people came to a community meeting on March 24, 2015, and we decided that we would work together as a community for as long as it would take.

After the Environmental Appeal Board hearing decision, 15,000 signatures were collected, hundreds more letters were written and rallies and protests began. The opposition to the permit was overwhelming, and the support was nonexistent, but that in no way swayed the provincial government. All of our pleas, our evidence, our research and our efforts were dismissed over and over again.

We felt the process was weighted against us, against independent scientific evidence and against common sense. The process seemed to have a predetermined outcome — getting to yes — and it seemed that the predetermined outcome controlled the process.

Consider what was lacking from the process that allowed a contaminated landfill to be put at the headwaters of our drinking watershed. Was there a landfill siting study? Nope. Was there an independent environmental assessment? Nope. Was there equal weighting of scientific evidence that conflicted with that of the engineers hired by the company? Nope.

Was there consideration of the previous actions of the proponents, including non-compliance with their mines permit at the very site? Nope. Was there consideration of the experience of the proponents or their engineers with designing, engineering and managing a contaminated landfill site? Nope.

Was there consideration of the opposition of the Cowichan Valley regional district, Island Health, Cowichan Tribes, Shawnigan community, the capital regional district and the city of Victoria? Nope.

[3:00 p.m.]

Worst of all, when it was revealed that Active Earth, the engineers who assessed the site and designed the landfill, were in a 50-50 profit-sharing deal with the owners of the site, the Ministry of Environment did nothing and allowed the soil to continue to be imported to the site. Their excuse: the matter’s before the courts. The result of this inaction: there is currently over 100,000 tonnes of contaminated soil sitting in a quarry at the headwaters of our drinking watershed, leaching into our environment.

As a community, we felt that we had no choice but to stand up for our watershed, which we did for years on end. The effort crossed all lines, including political: the sitting NDP MLA, the sitting federal NDP MP, the leaders of the B.C. Green Party, the federal Green Party, the candidate for the B.C. Liberal Party, support from Cowichan Tribes, from the Cowichan Valley regional district, from the city of Victoria and many others.

The campaign to protect our watershed engaged the entire Shawnigan community and was supported across the province and, indeed, across the country. Ultimately, the permit that we so vehemently opposed was revoked. But before that happened, Justice Sewell of the B.C. Supreme Court issued a ruling in a judicial review that had been brought forward by the Shawnigan Residents Association.

We as a community had been deeply concerned, obviously, about this permit, and Justice Sewell also expressed his concerns. This is reading from his decision in January of 2017. He says: “The existence of a financial benefit to the qualified professional from a particular outcome is a clear example of a reasonable apprehension of bias in the person preparing the opinion.”

He said: “If the question before me had been whether to set aside the permit, I would have had no difficulty in setting it aside and remitting it to the ministry for reconsideration because the technical assessment review was prepared by persons who were biased in favour of approving the project.” He also wrote: “This is a circumstance that goes to the heart of the integrity of the approval process under the Environmental Management Act.”

A Supreme Court judge of B.C. identified what hap­pened in Shawnigan Lake as “going to the heart of the integrity of the approval process of the Environmental Management Act.”

There is a part of the story of Shawnigan that didn’t make a lot of headlines. Community members, single mothers, grandparents, professionals and long-standing volunteers were getting knocks on their doors. And when they opened them, they were served with documents notifying them that they faced a lawsuit. One woman told me in tears that she’d never even had a parking ticket in her life. On one occasion, after a community meeting in the village watershed office, people were greeted by a process server as they left the meeting, each of them served with court documents telling them that they were going to be sued for what they were saying to protect their own watershed.

For the people of Shawnigan who wanted nothing else but to protect their drinking water from potential contamination, these documents had the intended effect. They created fear — a fear of speaking up, of speaking truth, of standing up for the future of our community. It created a chill in Shawnigan Lake.

At the same time, journalists were receiving emails from lawyers. As the Attorney General pointed out, this is not uncommon. The letters were threatening the journalists that if they continued to report on this story, they too would face legal action. While we stood for years and years telling the truth about what was happening to our community, about the unfolding events that strike at the heart of the approval process of the Environmental Management Act, we were facing, as a community, this threat.

[3:05 p.m.]

Ultimately, when the permit was revoked…. We are now left with more than 100,000 tonnes of contaminated soil at the headwaters of our drinking watershed. We remain steadfast in our commitment to seeing that soil removed. It never should have been deposited there in the first place. It needs to be put in an appropriate location, not in a quarry halfway up a mountain with a creek that wraps around it that feeds directly into the lake that is the drinking water source for our community.

What should never have been taken away from our community was the right to stand up and speak out on behalf of our watershed and our future without the fear of being sued. The legislation introduced today will ensure that communities across B.C. will be able to speak up and speak out when they feel that their future is put at risk.

A democracy is built on a foundation of trust and the rights of citizens to be able to speak up and speak out for their future and their children’s future. I applaud the Attorney General for bringing this legislation forward. I look forward to the debate at committee stage.

Deputy Speaker: Seeing no further speakers, the minister to close the debate.

Hon. D. Donaldson: I’ll move that second reading debate is closed.

Deputy Speaker: Hon. Members, you heard the motion. All in favour say aye.

Some Hon. Members: Aye.

Deputy Speaker: Opposed?

The motion carries.

Hon. D. Donaldson: I call that we move to second reading debate on Bill 3.

Deputy Speaker: The House will be recessed for five minutes.

The House recessed from 3:07 p.m. to 3:13 p.m.

[R. Chouhan in the chair.]

Hon. D. Donaldson: Hon. Chair, I understand we have to be precise in the wording, so I’m going to re-read what we just did. I move that Bill 2, Protection of Public Participation Act, be now read a second time.

Motion approved.

Hon. D. Donaldson: I move that Bill 2 be referred to a Committee of the Whole House to be considered at the next sitting of the House after today.

Bill 2, Protection of Public Participation Act, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

Hon. D. Donaldson: I call second reading of Bill 3, inti­tuled the Municipal Affairs and Housing Statutes Amendment Act, 2019.

BILL 3 — MUNICIPAL AFFAIRS AND
HOUSING STATUTES
AMENDMENT ACT, 2019

Hon. S. Robinson: I move that Bill 3, intituled the Municipal Affairs and Housing Statutes Amendment Act, 2019, be read for the second time.

I am pleased to move that the Municipal Affairs and Housing Statutes Amendment Act, 2019, be read for a second time because this bill proposes to amend the Building Act, the Cultus Lake Park Act, the Local Government Act, the Resort Municipality of Whistler Act and the Vancouver Charter.

[3:15 p.m.]

These amendments address regulatory gaps and issues that have been identified in the Building Act. They make targeted changes to help modernize key aspects of the Cultus Lake Park Act. These changes allow local governments to respond to various community needs, and they also ensure that local government legislation is up to date. The amendments will have meaningful impact by ensuring that local government legislation is clear, that it operates effectively, and by enabling local governments to continue to respond to the various circumstances in their communities.

First, I’d like to take a few moments to talk about the Building Act, and the first amendments are to this act. In British Columbia, the Building Act establishes the province as the primary authority responsible for establishing building regulations such as the B.C. building code. Local governments can regulate many matters related to buildings and enforce the B.C. building code but may not modify the building code’s technical requirements. Under the Building Act, the minister can identify matters as unrestricted, which permits local governments to establish their own technical building requirements for that matter.

Now, this binary system of complete provincial or complete local government authority for technical building requirements limits collaboration and flexibility for both parties. So two changes are proposed to the Building Act to clarify the authority of the minister and of local governments to regulate different aspects of the same matter.

The first change will authorize the minister to establish technical building requirements and to subdelegate certain decisions to local government, such as when or where those technical building requirements apply. This change will make building regulations more effective and administratively more efficient. It will provide a foundation for other planned regulatory amendments to address urgent and complex policy issues relating to the safety of secondary suites, accessibility for persons with disabilities, energy and seismic code for alterations to existing buildings, and fire sprinkler requirements.

For example, a local government may choose to require fire sprinklers in homes in all or part of their community where fire services are not present or are inadequate to meet the needs of the community or areas subject to wildfires. The technical requirements for installing sprinklers are written in the building code. This amendment will give local governments the authority to require sprinklers in a specific situation.

Again, we have local governments that work hard every day on behalf of their constituents. We fundamentally believe — I think all members of this House believe, because I know that there are a lot of members who come from local government — that local governments know their communities best and that this change helps them to deliver for their constituents.

The second change will clarify the minister’s authority related to unrestricted matters, while eliminating a possible regulatory gap identified since the Building Act was introduced. The change will allow the minister to impose conditions on unrestricted matters, and it will clarify that even though the matters are unrestricted, local governments still need to operate within the scope of other applicable laws and authorities.

These two changes do not expand the minister’s authority for establishing building regulations or permit local governments to do so. The changes clarify the minister’s authority to share regulation of a matter with local governments or place conditions when enabling local governments to establish technical building requirements.

In consultation on matters such as energy efficiency, secondary suites and fire sprinklers, local governments have requested that the ministry develop more flexible regulations established by the province and administered by local governments. The ministry has consulted with UBCM staff and industry stakeholders regarding these changes and heard that these are considered minor amendments, and they’re generally quite positive to providing these sorts of flexibilities.

Once again, I think this demonstrates our commitment, as a government, to working together with all stakeholders, making sure that we’re a responsive government and that we are paying attention to the kinds of things that various orders of government need in order to deliver for the people. We’re all here to serve people. When we can do it together and when we can do it in a collaborative manner, that’s better for the people that we serve.

[3:20 p.m.]

The second part that I want to refer to is the Cultus Lake Park Act, and that’s the second set of proposed changes to amend this act. Now, Cultus Lake is a fabulous place. I was talking to some folks around times that we have been there. I can think back to taking my kids to Cultus Lake.

It’s a well-loved park, and it has its own act. The park is situated within the electoral area of the Fraser Valley regional district. The original land for the park was given to the city of Chilliwack in trust by the Crown in 1928 — I see the member representing the area nodding his head — and it wasn’t until 1932 that the Cultus Lake Park Act established the Cultus Lake Park Board, which governs the park.

It’s a unique jewel in the member’s community. It’s known for its beauty. It’s known as a great place to party, if I recall. I think it still is, given the member’s smirk over the other way. It’s a lovely getaway. But I have to say that it’s also a wonderful place for families. Now that we’re all a little older and wiser, we bring our families there now. Its proximity to the Metro region has made it a destination, and it’s a fabulous place to be.

It’s unique, not just because it’s a beautiful place and not just because the original land was given to the city of Chilliwack in trust by the Crown. What makes it unique is that it’s one of the few park boards that we have that has its own legislation. It was established so long ago that it’s really important to modernize it, to make sure that it reflects the current issues and concerns of the time.

The park board is a special purpose governance body with limited regulatory authority, but it’s also really clear to appreciate that it’s not a local government. It’s not subject to local government legislation, such as the Community Charter and the Local Government Act.

The park board consists of five members. They’re elected members. Three of them are elected from the Cultus Lake Park, and the remaining two are elected from the city of Chilliwack, so it’s a real hybrid board. They are all elected at the same time and in the same manner as local government elected officials.

Now, the mandate of the park board…. They have the authority to regulate, to manage and to protect the park for the purposes the land is being held in trust by the city of Chilliwack. It’s really important that they have the right authorities to do the job that they’re entrusted to do.

[J. Isaacs in the chair.]

The terms of the trust do not allow the park board to sell the land, but the act enables the park board to issue short-term leases to lots within the park. Currently the park has about 1,100 leaseholders with renewable unregistered leases of 21-year terms.

The park board does have some authority to provide services. They provide fire protection, they provide garbage collection, and they operate campsites within the park. I have to say that I’m most familiar with the campsites. It was a place that I would go, while I was in university, with a lot of university friends, and I have great memories of the times camping at Cultus Lake. One of the things that I appreciated the most was….

As I think back, I would try to book my courses from Monday to Thursday so that I would have Friday off. I see another member on the other way nodding his head. I think he went to the same school of thought that I did, which was that you could get a three-day weekend in that way. We would take off in April, if we could sneak away — certainly, in September we could still camp — take off Thursday night and have a three-day weekend at Cultus Lake. I will not share anything else about what we would do at Cultus Lake except that we would pack up Sunday afternoon and come back.

Interjection.

Hon. S. Robinson: Stays at Cultus Lake, right.

Now, I think we need to recognize that while it’s all fun and games at the park and that what happens at the park at Cultus Lake stays at Cultus Lake, there have been some governance challenges. There’s been quite a history of challenges, and I’m sure the member across the way is familiar with them.

[3:25 p.m.]

I understand, historically, there’d been consideration of the feasibility of incorporating the Cultus Lake Park as a municipality and what that would mean around land tenure. The Soowahlie Indian band is right adjacent, so there’s what would happen at that point.

There was a real commitment to recognizing the value of the park as a park and to keeping it as a park. Making sure that we take a look at how to have it operate as a park while at the same time allowing the park board to have the opportunity to manage the 1,100 residents of the park, as well as the campground, and make the decisions that you need so that it’s all operating well is really important.

Now, some have asked the question about whether the city of Chilliwack has a role in the governance of the park. I think it’s an important question to think about. There is some formal aspect of the park’s governance, because the city is the trustee for the parkland, so the amendments that we’re doing, that we’re proposing here, give the park board some authority formerly held by the city. However, the proposed amendments maintain the city’s oversight in key areas.

We also need to remember that this act started in 1932. That’s when it was initiated, but it hasn’t been significantly modernized. So amendments that are being proposed here are made from a time that it was a bit piecemeal. I think, you know, if you’ve ever read the act, it’s pretty piecemeal. There’s some archaic language — 1932 was a long time ago — and it lacks clarity.

The amendments that we’re proposing really modernize the language of the act without changing the substance or the legal intention. There are some grammatical and organizational changes for clarity and ease of reading, making the act a more functional document for those who rely on it.

If our good friend the now mayor of Nanaimo, Leonard Krog, were here, he’d have lots to say about where the periods are and where the commas are and how it reads more elegantly. He would probably read out to us the difference between how it used to read and how it will read now. I’m going to spare all of you and all of us that, because I could never do it justice the way he could.

I do want to point out an example. I’m not going to read it out. What we found in reviewing the act was that there was inconsistency in the language used between sections. So these amendments really are about aligning the language between all sections for consistency so that we are all using the same language throughout the act.

You might be asking, at this point, what the specific components are. I think it’s really important that everyone in the House pay very close attention to these very specific details, because this is important stuff. Just ask the member who’s sitting behind. This is very important to his people.

What we did, when we looked at this, is we took a look at what the Community Charter has to say, because it’s really a good guide. It’s a really good document. I believe that document was in the ’90s, if I recall. It’s a really excellent document.

It will provide modern tools for bylaw enforcement within the park. It will modernize rules regarding park board member conduct and meeting procedures, it will provide the park board with corporate powers available to municipalities, and it will authorize the park board to transfer its water system to the Fraser Valley regional district.

Now, the proposed amendments are targeted to specifically address governance within the park. There are no impacts to tenure or land held in the park. I want to say that this is the second and final part of a larger package of amendments to the act. We had taken some initial steps previously, in the spring of 2018, that were passed.

I could offer a quiz, although I know that nobody can answer, so I’m going to put out the quiz, and then I’ll answer it myself. There is one other park board in the province.

Interjection.

Hon. S. Robinson: I know, right.

The Vancouver park board is the other one. People will often want to talk about them as in tandem, but the Vancouver park board was established under the Vancouver Charter, so it does have its own legislation. I don’t want people to think that this is going to have an impact for the Vancouver park board. This is a stand-alone, unique piece of legislation.

[3:30 p.m.]

I want to talk about the bylaw enforcement piece. The park board’s duties and powers are significantly more limited than those of municipalities and regional districts. I think it’s important that everybody in the House understand the difference, because it’s really important. I will say, for those who had been at the park in their college days: they didn’t have the same enforcement. I will say how grateful I am for that, but the next generation had better pay attention.

The duties and powers focus, really, on the park purposes. The park board has the authority to pass bylaws for the use, regulation, protection and management of the park, and the park board uses this authority to regulate matters — such as noise, which I was not guilty of; littering, which I was not guilty of; the use of public spaces, which I was not guilty of; and the maintenance of property by leaseholders, which I was certainly not guilty of.

The proposed amendments will not change the scope of the regulatory authority, but the park board does want access to different bylaw enforcement tools. That’s really the issue that’s at hand here. Currently the park board may only enforce bylaws by prosecuting infractions as offences in Provincial Court. This is time-consuming, and it’s expensive. In addition, the maximum fine that they can set is only $50. Now, I assume that in 1932, $50 was a lot of money. I will tell you that in the ’80s, when I went to the park, $50 was a lot for me too. But I suspect that today, in 2019, it’s really not as significant. It’s certainly not a high enough deterrent.

The proposed amendments will enable the park board to use municipal ticketing and bylaw notice enforcement or adjudication to enforce bylaws. It’s an effective bylaw enforcement method. It’s used by most local governments. It limits or eliminates courts. It’s cost-efficient; it’s time-efficient. It will enable the park board to impose significantly higher fines for bylaws that are enforced using these tools. The maximum fine for bylaw notice enforcement is currently set at $500 and $1,000 for bylaws enforced by ticketing. I think that will help.

The park board will also be able to enforce its bylaws by civil action — using an injunction, for example, to stop the contravention of a bylaw. That’s for more serious or continuing matters. It just allows the park board to have some tools at its disposal. We have heard, over the years, concerns about noise and about the misuse of public lands. That can get out of hand, and certainly, with social media, I think it can get out of hand much more quickly. They need some opportunity to better manage the park.

Now, another item that we’re looking at is a request from the park board. They’re requesting stronger conflict-of-interest and confidentiality protection rules. With park board members, there haven’t been problems in this regard, but the park board is seeking the same clear and robust conduct rules that apply to local governments. They want to make sure, as elected officials, that they are on side. The park board has been informally following these rules for a number of years, but it’s really best practice to make sure that they actually have the tools, within the legislation, that allow them to do that.

The act requires that the city of Chilliwack, as a trustee for the park area, set the remuneration for park board members by bylaw. As the majority of the park board members are, since 2014, elected from the park — that’s three out of the five members — and not the city of Chilliwack, it is efficient and appropriate for the park board to set remuneration for its own members, much like they do in a local government.

The current practice of the park board is to have a chair and a vice-chair. The act is being amended to codify the position of vice-chair and provide for the vice-chair’s appointment and remuneration. Again, we’re just bringing it up to make sure that the act is consistent with practice. It’s sort of recognizing that the act hasn’t kept up with modernization. This is an opportunity for us to modernize this act.

There are currently no rules regarding open or closed meetings under the act. For example, the act does not establish the fundamental default rule that meetings are generally open to the public. Given the role and mandate of the park board, it is important that the public has access to decision-makers and meetings where decisions are made, while at the same time providing the park board with the flexibility to hold closed meetings where it’s appropriate.

[3:35 p.m.]

The park board will now be subject to the same meeting requirements and safeguards as local governments. The park board has been informally following these rules, once again, for a number of years. These amendments that are proposed here will align the park board’s authority with its practice. Once again, we’re modernizing it. We’re making sure that there is some consistency.

Just to be really clear, we will not be granting the park board municipal corporate powers that expand beyond the scope of its authority. The type of corporate powers being provided to the park board relate to the process for operating a local government. That is, these powers do not provide the substance of municipal authority but just how these authorities are exercised. These changes are really about going from 1932 to 2019 — we have learned so much about how to do governance — and making sure there’s real opportunity for the park board to have the ability to be recognized, in the act, for the work that they’re undertaking. That’s really good work.

The last piece of this particular act that we’re looking at is the transfer of the water system to the Fraser Valley regional district. Now, the water system is currently operated by the Fraser Valley regional district under a three-year agreement with the park board. The water system requires significant upgrades that are estimated to cost $5 million. As the park board is statutorily barred from incurring this level of debt, the Fraser Valley regional district borrowed the funds to undertake the upgrades in 2016. Given this investment in the water system, all parties agreed that the Fraser Valley regional district should own the assets and continue to operate the water system.

If you think back to 1932, I suspect there were wells involved. It’s a different era now. Making sure that those households and that beloved campground have access to water is a good thing. The relationship with the Fraser Valley regional district is excellent. We’re making sure that they can continue to receive this water. We’ve done consultations with the city of Chilliwack and the Fraser Valley regional district on the proposed amendments around the water system. Everyone agrees it’s the right thing to do. That’s what we’re proposing to do here. That’s what I have on this act.

I have the Local Government Act, as well, that I want to talk about — the changes to that in this miscellaneous bill. We’re proposing to make a number of changes. The first change is a housekeeping amendment that would remove a reference, in a notice of assent or referendum voting, to a certificate requirement that no longer exists. The proposed change will provide clarity for local governments and the public by removing a redundant requirement.

Amendments to the Local Government Act also add an authority to allow a regional district to provide capital financing to a business in order to bring high-speed Internet to underserved communities.

Now, the proposed changes align with the existing framework in the Local Government Act, which allows regional districts to provide capital financing for services that are often considered essential, such as telephone, natural gas and electricity services. These amendments directly respond to a need that has been identified by regional districts and has been the subject of Union of B.C. Municipalities resolutions, by providing an additional tool that can be used to ensure that rural and remote areas have access to high-speed Internet services.

I wanted to spend a few minutes on this particular component around the capital financing opportunity. I have been involved in local government as a city councillor. Coming from Coquitlam, there wasn’t a whole lot of concern around local government access to these sorts of things, but in rural and remote British Columbia, it’s a completely different thing. We certainly heard from local communities that small rural communities’ ability to deliver essential services is compromised and is limited by this legislation. We heard what they had to say. We heard that rural and remote British Columbia and the regional districts want the ability to provide this, and we’ve responded. We thought that was really, really important.

[3:40 p.m.]

The next part of this miscellaneous bill is the Resort Municipality of Whistler Act. The proposed amendments to the Resort Municipality of Whistler Act allow for the removal of the role of the minister responsible for local government in overseeing Whistler’s official community plan. Specifically, the amendments would repeal, by regulation, the requirement for the minister to enact an OCP for Whistler. They would also remove the requirement for the minister to give written approval for Whistler’s OCP.

The amendments give Whistler a level of autonomy in the official community plan process that is consistent with that provided to nearly all other local governments, which are not required to have their official community plan approved by the province.

The proposed amendments arise against the backdrop, I have to say, of ongoing negotiations regarding the economic development and land use planning involved. The ministries of Municipal Affairs and Housing, Indigenous Relations and Reconciliation, and Forests, Lands, Natural Resource Operations and Rural-Development; the Squamish Nation; the Lil’wat Nation; the resort company, Whistler-Blackcomb; and the resort municipality of Whistler have all been working very hard to make this happen.

The ministry has worked with the Squamish Nation and the Lil’wat Nation on this issue for over a year. The negotiations, I have to say, have gone well, and in January of this year, a high-level agreement was reached between the parties. To ensure there is sufficient time to finalize the legal agreements that will make effective the high-level agreement, it is proposed that the amendments would come into force through regulation at a later date. Removing ministerial approval is a key step to supporting reconciliation measures underway between Whistler and the Squamish Nation and the Lil’wat Nation.

The final components are the amendments to the Vancouver Charter. The first change is a housekeeping amendment that is parallel to the housekeeping amendment being proposed to the Local Government Act that removes the reference to a requirement in a notice of assent voting that is redundant.

The amendments are also proposed to align with the Vancouver Charter and the Local Government Act by giving the city of Vancouver the same housing agreement authorities as other local governments. Specifically, the proposed changes would allow the city of Vancouver to include in a housing agreement the price of housing that may be charged by sale, lease or cooperative ownership, in addition to the current authority that allows a housing agreement to set up rents that may be charged. Ministry staff did consult with staff from the city of Vancouver, who indicated support for these amendments.

The proposed changes will support the city of Vancouver’s initiative to deliver affordable home ownership and our government’s 30-point plan for housing affordability. The proposed amendments will ensure that the province’s local government legislation operates effectively and enables local governments to better respond to their needs.

I hope that everybody here will join me in support of Bill 3. I would now like to move second reading.

L. Throness: It’s a pleasure to rise to speak to Bill 3, the Municipal Affairs and Housing Statutes Amendment Act, 2019.

I appreciate the words of the minister preceding me. It was great to hear that she has an affection for Cultus Lake, having spent time there making use of its recreational amenities in her college days. The Cultus Lake Park Board has made a great big application for an infrastructure grant in order to replace the wastewater system that was used when she was in her college days. Knowing that she has a great affection for the park will just make it much more easy for me to speak about that infrastructure grant, which I will do in due course.

I was really pleased to see the bill come before the House yesterday. It came as a surprise to me, and a pleasant surprise. I will want to talk about that. I’m going to deal specifically with the Cultus Lake amendments. There are 21 clauses in this bill, and 17 of them actually deal with Cultus Lake. I’m only going to speak about Cultus Lake because Cultus Lake is in my riding. It’s one of the great jewels of the provincial parks of B.C.

I want to talk about some historical context. These may be the last amendments for a number of years, so I want, for posterity’s sake and for perhaps an MLA who follows me, to understand the context of this, because there will no doubt be further legal changes.

I first arrived in Chilliwack in 1983 and was quickly introduced to the delights of Cultus Lake. A year later I began to work for the local MLA, Harvey Schroeder, who’s still doing well today. In 1984, I came to know Jake Dyck, who was then chair of the Cultus Lake Park Board. I had no idea of the governance structure of the park until early in my tenure as MLA, after I was elected in 2013. When I was elected, it quickly became plain that there were disagreements on the board. There were seven commissioners at the time, and they had divided into two opposing camps, four always voting against three. Residents were very angry at the board about decisions it had made, and there was a reason for this.

[3:45 p.m.]

The Cultus Lake Park is unique in the province, aside from the Vancouver park board. I would say it is unique in that no one lives within the Vancouver park board, but there are a lot of people who live in Cultus Lake Park. In the early days, Cultus Lake served informally as a campground for the people of Chilliwack, so when the Cultus Lake Park Act was created in 1932, it simply entrenched that practice into law. The parkland became the property of the city of Chilliwack.

It’s more complex than that. There’s a further legal wrinkle in that the city of Chilliwack does not own the parkland in fee simple. It holds it as a beneficial trust for the benefit of those who enjoy the park. This means it technically owns the land, but it has no influence on its governance. This is a very odd situation, but it gets more complicated yet.

Because the city of Chilliwack owns the land in trust, no resident of Cultus Lake Park owns their own land. They lease lots for periods of 21 years from the park board. Because the Soowahlie First Nation may have a claim to that land, the province will not make any material change, such as providing ownership of the land to its residents, because that might jeopardize the possibility of satisfying a treaty claim by the Soowahlie. So it’s a very complicated legal situation, and right now, it is sort of stuck in neutral.

Further, because the land technically belonged to Chilliwack when the act was written, it meant that of the seven commissioners, five would be elected by the people of Chilliwack and only two by the residents of Cultus Lake. This was appropriate in 1932, because hardly anybody lived in Cultus Lake. But over the years, Cultus Lake began to grow, and there are some 1,600 people who live there now, and still, five of seven commissioners were elected by the people of Chilliwack.

Well, you can see that would cause problems. It was a basic democratic accountability problem. The majority of commissioners could, if they wanted, ignore the wishes of the people they actually served, because they were representing the interests of Chilliwack, which elected them, rather than the desires of the residents of Cultus Lake. The people of Cultus Lake certainly felt this was exactly what was happening. They felt ignored. Their wishes were not reflected on the board, but they had no way to eject the commissioners, at election time, who they felt were not serving them.

I began to lobby the government soon after I was elected to resolve this basic problem of democratic accountability. I appeared before Chilliwack city council to appeal to them, to support a change, and they graciously did so. Happily, in 2015, our government came through with legislation to reduce the size of the board to five commissioners, which is more reasonable for an area of that size, and to make the majority of them, three commissioners, elected by the residents of Cultus Lake.

Therefore, the interests of the residents of Cultus Lake were aligned with the interests of the commissioners, who would be accountable to them, and the control of governance of Cultus Lake Park Board passed from the city of Chilliwack to those who lived in Cultus Lake. I must say, this small change affected a dramatic change in accountability, and it really fixed a lot of problems at Cultus Lake Park.

The election that followed in 2015 saw broad change in the board, and there was general local satisfaction with the change. It was really a lesson to me as a politician that democracy really works well when the accountability processes are aligned with the people they serve.

But there are still problems. Because Cultus Lake is growing, it has a growing and developing natural spirit. I would say a spirit of independence. It wants freedom to make its own decisions. It wants to govern itself, as any community wants. But the Cultus Lake Park Act of 1932 gave very little freedom in that regard. It’s just a park board, just like the park board of Vancouver.

When the people of Cultus Lake wanted more of a municipality, like any other community in B.C…. For example, the board lacked the power to do building inspections. They had to partner with the Fraser Valley regional district if they wanted to do these kinds of things. Before the change on the board in 2015, there had been a lot of friction between the regional district and the park board over this feeling of independence. They didn’t want to rely on the Fraser Valley regional district. They wanted to be able to do it themselves.

I gave different advice to the people of Cultus Lake that I like to think was accepted. It’s my philosophy, as a servant of the people…. I want to get them to where they want to go.

I said to the people of Cultus Lake: “If you want to one day become your own entity, then this is how to do it.” I said this at a couple of public meetings. “This is a process of evolution over time, so be patient. Build your community, using all of the tools that are available to you so that over time, Cultus Lake becomes a municipality in all but name.” And some day maybe ten, maybe 15 years from now, after all the decisions are made and all the processes are in place, all we need to do is change the name of the Cultus Lake Park to the village of Cultus Lake, or whatever they want to change it to.

[3:50 p.m.]

To their credit, the new board at Cultus Lake began to actively cooperate with the regional district, which has all the powers of the municipality and can exercise them on behalf of Cultus Lake. Today, for example, the Fraser Valley regional district has applied for infrastructure funds, as I mentioned, for a wastewater treatment system for Cultus Lake Park Board. Thus, through this new attitude of cooperation, they are building their community. Together, I think they’re doing a great job.

A few years ago the then chair of the park board, Dave Renwick, and I went to see the minister a couple of times to ask for further changes to the Cultus Lake Park Act of 1932. While he was amenable to it, officials had some problems with it. They felt that limited changes were possible, but the changes would require a lot of legal background work, and it couldn’t happen for a while. Of course, we were disappointed about this.

When the new government came to power, I thought the issue would die. But the issue did not die. To the credit of the government, they allowed officials in the Ministry of Municipal Affairs to work on a whole suite of changes with staff at Cultus Lake Park Board until we have before us a whole suite of changes — a number of alterations in the act that are really quite remarkable, in my view. The Cultus Lake Park Board supports them, and so do I. I believe that I can persuade my colleagues on this side of the House to support them as well.

Even though some of the changes are cosmetic rather than material, such as changing the name of the act itself, they are nevertheless important, because they represent the next step of evolution of the Cultus Lake Park Board in its long quest to become a municipality in its own right.

Now, we’re not there yet. There are still a number of hurdles to overcome, and I want to talk about that in a moment. But with patience, with perseverance, as responsible commissioners continue to build Cultus Lake Park and to make its administration and its governance processes and even its physical plant and appearance conform with those of the regular municipality in B.C. rather than a park board, the simple name change will happen naturally, over time.

I want to make a few comments about the bill before us — first, about section 3. Section 3 refers to commissioners of the park board. I would rather they be renamed councillors in keeping with the long-term goal that I’ve described. It would have no material effect except to signal the long-term direction of the community of Cultus Lake to one day become a municipality.

Section 4 refers to the Local Government Act, and it makes it explicit that the qualifications for election are the same as the qualifications of a councillor in a municipality. I like that. It’s further aligning the Cultus Lake Park Board with the standard requirements of any municipality.

Under section 5, I’ll admit I don’t quite understand why commissioners would be elected as school trustees are elected and not as councillors. I don’t really know enough about the difference between them to oppose or support this measure. It’s not clear to me, and I’ll bring that up in committee so that I can further understand.

In section 7, if a commissioner elected by the people of Chilliwack for some reason leaves the board, a new commissioner can simply be named by the city. This is not in accordance with a normal municipality where, if a councillor leaves a municipal council, it would require a by-election. I’ll certainly consult with the city of Chilliwack as to this provision. The municipality may have been consulted already and may prefer the naming of a commissioner for the remainder of a term instead of going to the expense of a by-election.

Also, section 7 doesn’t appear to deal with a vacancy on the park board of a commissioner elected by the residents of the park. Would this require a by-election? Or as it appears on the face of it here, would the city of Chilliwack be able to appoint a successor or a commissioner not elected by the city? I’ll need some more information about that. I can address that in committee.

Regarding section 8, a commissioner’s place can become vacant if that member misses three months of meetings. One can imagine a situation where an elected commissioner is ill and could be ejected, contrary to the will of the people who elected that commissioner. So I’m not too keen on that provision, but we can discuss that.

Section 9, which is a new section, makes it clear that the Community Charter applies to the Cultus Lake board in a variety of areas, as it does to other municipalities. Once again, I like this. It causes the board to conform to the shape of a municipality, with more of the same obligations and privileges. For example, it opens up the board to the Freedom of Information Act, which is a normal and good thing for any municipality that wants to be transparent.

In subsection (2) of this section, it makes certain park board terms equivalent to terms used by municipalities. For example, the term “board” is equivalent to the term “council,” and so on. I like that for the same reason. It’s requiring the board to conform to the shape of a municipality.

[3:55 p.m.]

Section 9.2 deals with bylaw enforcement. At one time, local officials told me that there was really no legal basis for the park board to enforce their bylaws and that they might not actually hold up in court. This will now be remedied through the application of the Community Charter, and that’s a good thing.

Here I will further skip down to section 16, where it talks about penalties. The minister mentioned this. At present, the board cannot legally impose a fine of more than 50 bucks, which really hardly makes for a deterrent in today’s terms. That limit will now be raised to $2,000, which is a more reasonable thing.

Section 12 deals with bylaw creation. This bill provides for a legal foundation for bylaws that is more secure than before. I support that.

Section 13 has been a long-standing irritant for commercial leases. By restricting business activities to a maximum term of five years, businesses that might like to establish in Cultus Lake lack certainty. They lack future certainty, and this is an impediment to economic growth at the lake. I would like to see that term lengthened.

Section 15 provides the board with the power to set the remuneration of commissioners rather than having the Chilliwack city council do that. This is part of democratic accountability. The commissioners will be looking to the people they serve for direction on their own remuneration rather than the council of the city of Chilliwack, which really has little to do practically with the board on a day-to-day basis. I think that’s the way it should be.

These are all the comments I have, which could be clarified by the government over the next few weeks as we continue to consider this bill, but I want to end by laying out what I think are the steps remaining toward the ultimate goal of municipal status for the community of Cultus Lake.

First, we need to address the issue of land claims. I’ve met several times with the Chief of the Soowahlie First Nation to encourage their council to engage in the treaty process, because Cultus Lake is developing very rapidly. The minister may have gone golfing in her early days at Aquadel Golf Course. That course has now been sold and turned into a subdivision. There are hundreds of homes near Lindell beach now. There are new homes being constructed at the park itself. There are condos being built at the old marina site. There are other developments planned.

My concern is the development pressures around the lake will make a landed cash offer much more difficult if land is already occupied by others and the treaty process doesn’t take place in a timely way. I continue to encourage the Soowahlie people to take advantage of the treaty process that is open to them. A treaty would not only satisfy our historic obligations to the Soowahlie people; it would enable the process of conversion from lease to ownership in fees simple. I think all the residents of the park would much appreciate that.

In this regard, the leases are now only 21 years. Although they are renewable, banks are often unsatisfied with this arrangement, which makes it difficult to get a mortgage. A longer-term lease would ease that problem until the issue of land lease versus ownership is worked out.

I’ve already mentioned the five-year limit on approvals for business activity, which makes it difficult for businesses to establish in Cultus Lake. We need a longer term. Over the long term, we need to work on that.

There is an issue of taxation. Right now property taxes go to the province of B.C. rather than the park board, so the board has to try and raise revenue in other ways — through leases, a large campground it owns called Sunnyside Campground, and other odds and ends like parking income.

I received a complaint recently that the board increased camping fees by a huge amount because the board needed more revenue. It seems to me that to be treated fairly with other communities, the board should receive back from the province an equivalent amount of local taxes that any municipality would receive so that it can finance comparable services. I would appeal to the Minister of Finance to consider this, and I’ll be approaching her about that.

I think the physical plan of the park is important. For example, there needs to be a town square, a main street, a place where they community congregates. This is not the responsibility of the province, but I think steps are being taken by the board to do just that, and they should continue.

The basic systems of water and sewer need to be in place. The water system has already been taken care of. It will be under the care of the Fraser Valley regional district. Right now the park runs on a very aging septic system, and it’s been in place for a long time. The community requires an infrastructure grant to provide a modern, class A wastewater treatment facility that the community needs. We were not successful in the last round, but a new application has been made. I’ve already lobbied the minister for it in a letter and will continue to advocate for that.

The legislation does not allow for the board to borrow more than $50,000. Can you imagine running any municipality that is only able to borrow $50,000? How would they respond to a flood or repair a sidewalk or a street or pretty well any other unforeseen circumstance? This needs to be changed, so I would add it to the list of things to remember for future changes to the law.

[4:00 p.m.]

Finally, we need to make the park board eligible to apply directly for government grants like any municipality does. At the moment, the board is technically unable even to attend UBCM meetings, although it faces many of the same issues that municipalities face. This needs to be rectified, and I don’t thinks this bill does the job on that.

There are a number of issues I see that need resolution, but what we have before us is a step in the right direction.

If I’ve made mistakes in my judgment of the elements of the bill, I’m sure the government will inform me. I want to thank the government for bringing it forward, and I would welcome further debate and discussion on this bill.

[Mr. Speaker in the chair.]

Hon. S. Robinson: I want to express gratitude for the member’s comments across the way. I look forward to seeing this bill proceed.

I move the second reading of Bill 3.

Motion approved.

Hon. S. Robinson: I move that the bill be referred to the Committee of the Whole House to be considered at the next sitting after today.

Bill 3, Municipal Affairs and Housing Statutes Amendment Act, 2019, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

Hon. M. Farnworth: Given the completion of these bills and given the issue regarding the physical plant of the building, particularly east of this chamber, I move that the House adjourn until Tuesday at 10 a.m.

M. Bernier: I appreciate the minister saying that there are no further bills. But, I mean, we do have lots of people in the House, so it’d be interesting to talk about that.

I want to put on the record that we do have a private member’s bill that was addressed today. The government does have the opportunity to waive, and we could debate that one.

Interjection.

Mr. Speaker: The question was moved by the Government House Leader — that is, the adjournment of the House until Tuesday morning at 10 a.m.

Motion approved.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

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

The House adjourned at 4:03 p.m.