Orders of the Day

Hon. M. Farnworth: In this chamber, I call committee on Bill 3, the Environmental Management Amendment Act. In Committee A, the Douglas Fir Room, I call continued debate on the estimates for the Ministry of Children and Family Development.

[2:45 p.m.]

Committee of the Whole House

BILL 3 — ENVIRONMENTAL MANAGEMENT
AMENDMENT ACT, 2020

The House in Committee of the Whole (Section B) on Bill 3; S. Gibson in the chair.

The committee met at 2:47 p.m.

On section 1.

P. Milobar: A couple questions for the minister, overall, on the bill in itself. I’m hoping, with a bit of his indulgence here…. I have one question around section 1 that probably relates more to section 8, but I just want to make sure that I cover that off. Then when we get to section 2, I’ll have quite a few questions that might interrelate with some of the further sections, but I’m letting the minister know that once that they’re covered off, we can breeze through the remaining sections, if that’s all right with him as well. Anyway, I’ll jump into it.

Section 1 is just repealing the definition of “contaminated soil relocation agreement.” I know it’s touched on in section 8 as well, about transitional provisions. Does this mean that any…? It does not look like it in section 8, but I’m just wanting reassurances that this does not change any existing soil relocation agreements that are out there and that it’s meant more as a move-forward piece.

Hon. G. Heyman: Thank you to the member for the question. I’d first of all like to introduce the staff that are with me today from the environmental protection division. On the far right is Kevin Butterworth, and next to me is Valentina Yetskalo.

The answer to the member’s question is that those agreements that are currently in place, the soil location agreements, will continue until they terminate, and other transition measures will be governed by transition regulations.

The Chair: Any further comments on section 1?

Section 1 approved.

On section 2.

[2:50 p.m.]

P. Milobar: This is section (1.2)(c). How far in advance will the notice be required to be given? The policy direction paper was talking about two weeks, but we’re wondering what the actual notice time frame will be.

Hon. G. Heyman: The notice period will be two weeks, and it will be prescribed by regulation.

P. Milobar: Thanks for that. Will there be any fees attached to the notice when that’s being provided? If so, will it be a cost recovery or a source of revenue?

Hon. G. Heyman: We are not planning to impose any fee at this time. In other areas where the ministry does have fees, the principle is cost recovery.

P. Milobar: Local governments get notified. They raise concerns. What will be the process if there’s a concern raised about an application? Will it still proceed, or will local government objections automatically make the application not applicable?

Hon. G. Heyman: It’s no longer an application. It’s a notification. But the two-week notification period is intended to give municipalities and local governments a chance to ensure that their bylaws are being applied appropriately. If they had any additional concern that they believed was covered by the Environmental Management Act or Environmental Management Act regulations, they would notify us, and environmental protection division staff would attend.

P. Milobar: I guess why I’m asking this line of questioning is because typically, when local governments or First Nations hear of a change, the anticipation is usually that they will have more say into a matter or not. So is the minister saying, then, that if a municipality has objections, they’ll be taken under advisement, but it is not a stop to the soil relocation happening simply because a local government might have objections to what is being proposed?

Hon. G. Heyman: To be clear about the process, municipal or local government bylaws exist to control aspects of soil relocation. The two-week notice period is there for the municipality or local government to ensure that their bylaws are being obeyed or adhered to, or potentially, a local government could introduce new bylaws if they felt the ones they had were insufficient.

If they felt there was an issue of pollution or a violation of the Environmental Management Act or the Environmental Management Act regulations, or a potential one that they wanted us to closely monitor, they could notify the environmental protection division. The environmental protection division, if there was a complaint that there was a potential violation of the act or regulations, would determine if, in fact, that was the case and take appropriate action under the act and regulations.

[2:55 p.m.]

If there was a concern that that might happen and the environmental protection division thought the circumstances indicated that that was a valid concern, we would monitor and take action if it was indicated.

P. Milobar: I think it’s obvious why I’m asking questions around this. I think it’s fairly safe to say that the House Leader for the Third Party has quite a community interest around soil movement and whether it’s appropriate or not appropriate and public input or not and municipal government input or not. Post Bill 41, what types of notifications will be needed, if any, once notice is given? Or will notice also have to include notification to area First Nations?

Hon. G. Heyman: The member makes an important point. It gives me the opportunity to distinguish this part of the Environmental Management Act from the part of the Environmental Management Act that specifically addresses contaminated soil — moving and dumping. That is covered under the act but under a different section. The regulations that cover that will apply. Part of the requirements are when a permit to handle contaminated soil is applied for, which is under another section of the act, then this one…. First Nations are consulted.

With respect to this amendment, the purpose of this amendment is to ensure that there is notification when soil is being moved. The regulations will require the person moving the soil to notify local government, the provincial government and local First Nations. So that notification will take place.

The movement of soil that could potentially be contaminated from a commercial or industrial site will require that that soil be properly characterized. So if it is in fact contaminated, that will be known, and then a proper consultation process around the handling of contaminated soil under other sections of the act would take place.

P. Milobar: Just to be clear, then, on the notification provisions.

In Kamloops’s case, I know that when we would have drainage works to be done, just in terms of storm sewers or drainage ditching, not even a pipe, we would have to send notification out to, I believe it was, 14 area First Nations around Kamloops to get sign-off on those works. They would usually defer to the TteS, as the overarching impacted First Nation.

You would go through the steps. It would take quite a while to get notification back. Many bands, just out of sheer capacity issues, especially with the sheer volume of referrals that will start coming their way, especially on the heels of Bill 41, take some time to process the work that’s in front of them. As I say, it’s simply because they’ve got a big stack of referrals to have to try to churn through and, essentially, a very small operation to deal with them.

[3:00 p.m.]

This is a two-week notification, and then it looks like once the two weeks’ notice has been given, the person can continue on with the soil movements. Is that the case? Regardless of whether they’ve heard back in that two-week window or not, if no one has gotten back, the person can then proceed with the soil relocations, under this bill?

Hon. G. Heyman: It’s a good question, and it’s an opportunity to offer some clarity.

Currently these amendments replace the soil relocation agreements which exist now and do not require consultation and, frankly, in many cases, don’t exist. The amendments to the act do two things. The first thing they require is notification of movement of clean soil below a certain quantity, which, in a sense, is no different than moving lumber or anything else. But it does ensure that local government, First Nations and the provincial government are aware of the movement.

The other really important thing that the amendment does is to say that soil that comes from a commercial or an industrial site must be characterized properly, scientifically, in a technically sound manner. Or that if soil exceeds a certain volume, it is covered, as would soil that was found to be contaminated — through the characterization — would be covered by a different process under this act, different regulations, with a full consultation around what happens with it.

The process, if the soil is found to be contaminated or if the soil exceeds a certain volume, would be different than simply a two-week notification period. It would require review under regulations for contaminated soil, and a more robust consultation with everyone, including First Nations, would take place.

P. Milobar: So 2(d), I guess it is. It’s bolded: “in subsection (5) by striking out ‘from depositing soil from a contaminated site at another site’ and substituting ‘from depositing soil at a site.’”

I’m just wondering, given that this is to deal with contaminated soils: why the need to remove “from a contaminated site”? I would assume that’s where most of the soil being moved is coming from — a contaminated site to a different site. So does this mean it’s any soils? Or is it still strictly contaminated soils that this section is talking about?

[3:05 p.m.]

Hon. G. Heyman: For clarity, as I’ve stated, now the words “from a contaminated site” are struck because it is covering all soil. Soil from a commercial or industrial site will be characterized to determine if it’s contaminated — here’s the difference — and then if it is, it will be dealt with as contaminated soil has been dealt with in the past under the act.

P. Milobar: So if it’s all soils that count, are agricultural operations part of these changes and have any impact with this bill at all?

Hon. G. Heyman: The definition of “commercial” and “industrial” will take place. It’ll be strictly defined in the regulation. The intent, to date, has not been to include agricultural operations in that. We believe that other acts and regulations cover what happens on agricultural soil, in the first place, because it’s used for growing food or feeding animals that become food. Therefore, there are a number of other provisions that apply. It’s generally not the case that soil is moved from an agricultural operation.

In the course of consulting on the regulations, which we will do, if a gap is identified, we’ll certainly consider prescribing coverage of that gap, either here or in another appropriate act or regulation.

P. Milobar: I’m curious about mining as well, if it’s already been contemplated or not. The reason I asked specifically about agriculture — but the same would hold true with mining — is that most of those operations have several different parcel identifiers within the operation themselves. You can have several different titles that make up a ranch. Several different titles will make up a mine site. Those types of scenarios.

What’s envisioned here to be defined as “a site”? In other words, is the movement on the same legal parcel going to be considered the same? Or if it’s the same entity that owns both parcels side by side and they decide to drive it from one side of their operation to the other, is that now a movement of soil? In terms of that, there are even large gravel pit operations or anything like that that you could technically see where they would be going across property lines, but it’s all still one big corporate entity.

Could we get some clarification of how this envisions the classification of a site versus just internal operations for large-scale operators?

[3:10 p.m.]

Hon. G. Heyman: Firstly, much handling of soil or material on an industrial site — a mine, for instance — would be covered, in all likelihood, by the conditions on an environmental assessment certificate.

To the member’s question, the site is defined by parcel identifier. If you’re moving from like to like — for instance, if you’re moving from one part of an industrial operation to another part of the industrial operation — and they both have contaminated soil, both have potential contaminants, then the answer would be no, you wouldn’t be required to.

If, however, it was one operation and part of the site was industrial and another part of the site was, say, for the sake of argument, residential or, I guess, residences for people who worked on a mine and you were moving soil from the industrial part of the potentially contaminated part to a part where people were living, then yes, a notification would be required.

The fact that there is more than one parcel identifier on an industrial operation where you essentially have contiguous operation across a boundary and contamination in each, then no.

P. Milobar: Just a couple more questions, and then we’ll probably be able to breeze through the nine sections pretty quickly.

Just for some other clarity, then, around forestry. They go in. They build the roads. They have to start doing some remediation work and things after they’re done in their cutblocks. Will the forestry industry be required with this, as well, if they’re hauling in dirts and soils and that? Or are they part of their own separate area, and this is nothing for them to be worried about?

Hon. G. Heyman: There will again, in the regulation, be a list of prescribed activities. Forestry specifically isn’t one of them. But if it’s a site or a yard where there’s equipment and potential contamination from fuels or other materials used in a machine shop or somewhere else, then yes. It would be covered if they were moving the soil somewhere other than the site.

[3:15 p.m.]

P. Milobar: I recognize this has been ongoing since, I believe, 2014. We have the final policy direction paper as well, but there’s still a fair amount left for regulation once this bill gets passed. I’m just wondering: what’s the timeline for finalizing the necessary regulations? Is there going to be any more consultation before the finalization of the regulations? Overall, what’s the way forward with regulation and timelines?

Hon. G. Heyman: The intention is to work to finalize the regulations by fall 2021. There will be intentions papers published on the development of regulations, with lots of time for comment and extensive consultation on the regulation proposals.

P. Milobar: I know existing permits will be held, as we talked about at the very beginning. Does that mean, then, that between now and whenever all the final regulation is brought in, all the existing processes stay in place? It’s status quo until we see those final regulations in the fall of 2021?

Hon. G. Heyman: That’s correct.

Sections 2 to 10 inclusive approved.

Title approved.

Hon. G. Heyman: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 3:17 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 3 — ENVIRONMENTAL MANAGEMENT
AMENDMENT ACT, 2020

Bill 3, Environmental Management Amendment Act, 2020, reported complete without amendment, read a third time and passed.

[3:20 p.m.]

Hon. G. Heyman: I call Committee of the Whole on Bill 8, the Education Statutes Amendment Act, 2020.

Committee of the Whole House

BILL 8 — EDUCATION STATUTES
AMENDMENT ACT, 2020

The House in Committee of the Whole (Section B) on Bill 8; S. Gibson in the chair.

The committee met at 3:21 p.m.

The Chair: Hon. Members, I will call the meeting to order, but we will take a recess of approximately five minutes in order to be prepared.

The committee recessed from 3:21 p.m. to 3:27 p.m.

[S. Gibson in the chair.]

Hon. R. Fleming: I’ll just begin by introducing some staff who will help me with committee stage of the debate this afternoon. To my right is Deputy Minister Scott MacDonald, to my left is Assistant Deputy Minister Keith Godin, and directly behind me is Assistant Deputy Minister Reg Bawa.

We’ll certainly look forward to questions from the members on the various sections of the bill. With that, I’ll take my place.

D. Davies: Ready to begin. We can go into the bill. I’m looking forward to asking a number of questions, as we raised in second reading yesterday.

Sections 1 to 14 inclusive approved.

On section 15.

D. Davies: I do have a number of questions around section 15. Of course, as I mentioned yesterday in second reading, most of our questions are going to come around the child care, the before- and after-school care piece of this legislation.

[3:30 p.m.]

Just wondering if this bill in any way limits a school board from continuing to enter into contracts with other providers for children under six on school grounds.

Hon. R. Fleming: The answer is no.

D. Davies: Thank you, Minister, for the answer.

Regarding impact with child care being provided in communities right now, the bill mandates boards to charge their own costs. There will be no profit allowed. Their costs will be basically rock bottom, as I mentioned in second reading yesterday.

[R. Chouhan in the chair.]

A lot of these subsidies will be borne by the taxpayer. Just wondering what the transparency piece is going to be around letting the public know the true costs that are going to be borne by the school district so that there is some transparency in place.

Hon. R. Fleming: As the member will know, this legislation enables school districts to pursue this. Some will; some will not. It will allow districts that do wish to directly provide child care to operate on a cost-even, a break-even, basis. We expect that their fees will recover the costs associated with providing new child care services that they will now directly administer, and therefore, the subsidies, if you will, that are already provided for the K-to-12 public education system will not be directly used to cross-subsidize the extracurricular programs of before- and after-school care.

D. Davies: Will the costs around this…? And just to get on the record, will they include…? What are we looking at being included in the cost? Is it heating? Is it all those costs around that? Is it going to be looking at a square-footage piece? What is the cost that they’ll be looking at? When school districts need to be looking at trying to come up with a cost to charge the user, what are the costs that are being looked at in regards to coming up with this formula? Or what is the formula, I guess?

[3:35 p.m.]

Hon. R. Fleming: I imagine this won’t be the last question the member has on this, but just to begin, there is no formula that is prescribed. Bearing in mind that if a new before- and after-school care service is being provided by a school district directly, what we’re actually talking about is incremental costs in addition to what is provided during the school’s regular operating hours. So one would imagine that would be additional staffing hours, additional facility costs that can truly be ascribed to that operation, to that program, cleaning costs and those sorts of things.

The member will know that boards are already required to follow financial audit requirements that delineate expenses for various programs. So it would be up to districts to fulfil the requirement to report and provide the transparency that he is asking about, whether it’s through annual reports or audits or those sorts of things.

The district will recover the costs. So it won’t require an additional taxpayer subsidy. They will recover the cost of these programs through fees that are paid by the parents.

D. Davies: Thank you, Minister. Presumably, there’s going to be extra wear and tear on the school itself — I mean, we have extra kids now; there are longer hours — ranging from just the building maintenance required to school playground equipment. Just wondering if that’s going to be within the mandate, I guess, of the board to also be looking at coming up with charging out this wear and tear to the users?

Hon. R. Fleming: The short answer is that boards may decide that. But I would remind the member that we’re talking about programs that are typically operating an hour before school already and a couple of hours after school. Many schools have third-party partnerships already. So this isn’t new terrain, new territory, to operate this kind of service. They’ll have their own arrangements.

I suppose what this legislation enables, though, is…. Districts were seeking clarity on whether they can operate child care services, specifically before- and after-school care, which currently the School Act is silent on. These amendments are the answer to that question: yes, they can.

I think what we heard from many in the early childhood education community and others who operate on a non-profit basis already, community-based services, was that this is something that they very much want to do. This is something where the school facility can more efficiently be used to help accommodate the needs of parents, many of whom sit on wait-lists.

We expect that what you’ll probably see is more diversity of programming and of models of delivering before- and after-school care. The member will know that while there are demands in many communities for additional services, there are tens of thousands of kids who will be utilizing after-school care in about half an hour’s time, on our time zone, right across the province.

D. Davies: Great. Thanks for that.

In regards to transparency, of course school districts having to report revenues and such, what if there is a profit generated by the school board through whatever…? Certainly, early on in this program, it’s going to be new and such. Are those profits, then, going to have to be turned over to the ministry, or will the school board be able to decide where those funds go?

Hon. R. Fleming: Just to be clear, the intent of the legislation is to ensure that boards are able to charge adequate fees to cover their costs and ensure that the provision of child care is, in fact, not a profit-making venture. So they would have to report, as I mentioned earlier, what fees or revenues they collect and what expenditures are associated and offset the fees that they collect from the parents.

[3:40 p.m.]

D. Davies: Okay, just to clarify, then. If there is additional revenue left over, the school boards then would be allowed to utilize those funds as they see fit?

Hon. R. Fleming: I think the answer to the question that the member asked is in the legislation before him, section 15, where the School Act amendment to section 85.2(2) inserts new text into the act. It directly provides clarity in law to the point that I think the member is trying to make. I’ll just quote it. “If a board provides a child care program referred to in subsection (1), the board may charge fees to a student to whom the child care program is provided if the fees are not more than the direct costs incurred and to be incurred by the board in providing that child care program.”

D. Davies: Thank you, Minister. That does make sense, but it kind of opens up the question, then, if school boards deem appropriate. There is a best guess, I guess. When they look at the cost of heating the building and the cost of staff, those other costs, then they will come up with a fee. They’re not going to back-charge a year of fees. It’s obviously going to be upfront.

I’m just curious to see…. We could be in a situation where there could be profits made. I wouldn’t say significant, but…. I guess my question still remains. Deemed appropriate. Is there a limit on what’s deemed appropriate? If there is a show of profits in regards to delivering the before- and after-school care, what is done with those? Is the school district then able to just utilize those as they see fit, within making the improvements around the school care program? I just want to get clarification on that.

Hon. R. Fleming: Well, just a general comment. I think we have a long experience that gives us a lot of faith in school districts to follow the law. The School Act has a very sophisticated number of clauses that contemplate how a public expenditure is both used and reported. For example, the member will know that deficits are illegal in school districts, and districts rarely miss on that projection.

What I would say, in the hypothetical situation that the member presents, is that if a district slightly overcharges its calculation of fees — for example, maybe it has more kids, and more fees are collected as it relates to the staff ratios or those sorts of things — those would become retained earnings, and they be would reinvested back into the program.

[3:45 p.m.]

The school district, as I mentioned earlier, has to report out on the program’s revenues and expenses, and transparently so, to parents and others. The expectation and, in fact, the law, should this bill pass, will oblige them to do just that.

D. Davies: Great. Thanks. That helps clarify the question.

Previously, under the current system, boards would basically have a provider, a contract that would come in and provide a service that was licensed. I’m just wondering now if these new programs that are offered by school districts are now to be licensed under the regular licencing act through the Ministry of Health as well.

Hon. R. Fleming: Yes.

D. Davies: Thank you, Minister, for that. With these now being recognized as child care programs that are running within school districts, would they then be eligible to apply, through provincial care programs that right now providers can apply for, for grants and additional funding and programming?

Hon. R. Fleming: Yeah. I think, if the member is referring to things like the Ministry of Children and Family Development’s new spaces fund, the answer is yes.

D. Davies: Does this not seem like a double subsidy, then, definitely, for school districts? I’m just wondering. It seems like it’s already a provincial asset, and now the province can apply for a grant from the province. I’m just wondering if that has been taken into account and what the minister’s thoughts are on that.

Hon. R. Fleming: I want to be discerning about operating fund programs that the member may be referencing and capital funds that I referenced in my last answer to his question. Where a school district may now want to apply as a licensed child care operator for an MCFD capital grant to buy a modular space or refit a classroom, the school district would be able to do that in exactly the same way that other providers currently can, and they would have to meet the same criteria. Then that would become an asset specifically for child care purposes.

You could get the situation where that space, which would be used for an early childhood education or preschool program between the hours of 9 and 3 p.m., let’s say, could otherwise be available to a district-administered early and after-school care program. But that wouldn’t be double-dipping for an additional subsidy. That would be taking an asset paid for by the province and maximizing the hours of its use by having two programs in a space that was originally assigned for one program. So it would be an efficiency, if I can put it that way.

[3:50 p.m.]

D. Davies: We’ve already established that the school boards will now be recognized and licensed under the Ministry of Health and the health authority. Now, this might be a loaded question. I assume it would be required to meet all the regular requirements. But will it be required to meet all the exact same requirements as the child care programs — staffing ratios and everything else? Would that be required?

Hon. R. Fleming: Well, the answer to the member’s question is that the regulations that currently exist…. They have different staffing ratios depending on the age of the child. The ones that are issued…. The licensing would be the same regime for a school-based, district-administered before- and after-school care program as it would be currently for a not-for-profit or community partner model.

D. Davies: Has the minister taken into consideration, regarding…?

This is now government competing in a free market, and it does run the risk…. I know in my riding, there already is a challenge to have spaces, a challenge to get ECE folks. With poaching already rampant in regard to taking employees and such, I see there being a problem with the private care providers. As you move over here into the school districts and you provide some seats, we run the jeopardy of having maybe private operators close.

I’m just wondering if the minister and the ministry itself have taken that into consideration and what preventative measures have been put in place to stop this poaching of ECE workers and this direct competition with the private sector.

Hon. R. Fleming: I would say, as a general comment, we’ve consulted widely with the child care community, including a very well-attended early learning summit that was hosted by the Ministry of Education in partnership with MCFD and, in fact, the Minister of State for Child Care, and we didn’t hear any such concerns. I don’t think that the boys and girls club is concerned that the member’s school district in Peace River North could be in competition with one another. I think what we’re seeing is that they’re complementary, not in competition with one another.

Parents will be able to choose which service they want. School districts will be able to choose whether they wish to offer these programs or not. We are not seeking to push a particular model on them. They may wish to continue the partnerships they have. They may wish to begin their own operations. They may wish to have both, depending on which part of the community they’re representing.

I think actually contrary to what the member has suggested, there are some school districts who may wish to enter into a relationship where they are the direct licence holder and provider of before- and after-school care, where they see this as an advantage to retaining their own staff currently. I’m speaking specifically to educational assistants, who often do not have full-time hours. They would obviously be the workforce they may wish to look to, to work a longer day, often with the same kids, it would be, either in a before- or after-school care setting.

We’ll let the field, the school districts, look at those things. What we’ve committed to as a government is to enable this to happen, to bring clarity to the School Act, to not have barriers and impediments to these kinds of organic developments that might be the right fit for their community. That’s what this legislation does.

D. Davies: Thank you for that. Since this bill was introduced, I have reached out to some of the private daycares. There is some concern, I know, in some of the rural places I’ve reached out to, regarding feeling that there could be an unfair advantage with the private sector.

You had mentioned a moment ago about consulting widely, the summit and such. Can the minister take a moment to explain what the consultation process did in fact look like, who it included? Was it urban versus rural? Both, I presume. Did they look at far north, northeast, northwest? If the minister could provide the House with kind of a snapshot of what that consultation looked like.

[3:55 p.m.]

Hon. R. Fleming: Maybe just to go back to the member’s previous question. He was concerned about competition, I think he said, with private child care operators.

I think you need to understand that when we’re talking about before- and after-school care, we’re talking about five- to 12-year-olds. These are children who attend school between the school hours of a given district. I don’t know of many private operators that have businesses that operate for two or 2½ hours a day strictly as before- and after-school care providers, so I don’t think there is a situation where there’s any competition at all.

The member will know that the reality is that there’s significant demand for before- and after-school care and child care, more generally, in communities right around British Columbia. We need to be able to build capacity.

The intent of this bill is to allow districts — not to force them — should they wish, to address the wait-lists and expand the child care opportunities that they may already be providing or to provide it for the first time. They can now do this. They can, in fact, become the licence holder if they want to move beyond just having a landlord-tenant relationship with the community providers that they may currently house in their school or in facilities that are on the school ground.

They can use the rest of the school or portions of the school facilities that already exist that generally lock their doors at 3:05 in the afternoon. They can use it for a longer period of the day to provide a different program for the convenience of families who are looking for this.

Speaking of the advantages of what we’re trying to do here, the points that the member for North Vancouver–Lonsdale made at second reading debate are not insignificant — to reduce some of the transportation and stress to families that comes with multiple drop-off and pickup locations, often with multiple siblings. You can have them involved in the same school community now. That has an advantage to all kinds of things for the community around reducing congestion during the peak periods, both in the morning and in the afternoon.

This is about helping parents be able to keep jobs that, quite frankly, don’t allow flexibility to leave work early or arrive late. This is about extending the hours that more accurately align with what are typical employment terms for most British Columbians in their workday.

D. Davies: Thanks for that. Appreciate it. I don’t think you got to my second question, about explaining to the House the consultation process.

Hon. R. Fleming: Quite correct. Let me address that part of the question from the member.

On and off, there have been conversations for years and years and years about how schools can be more integrated and involved in early childhood education.

[4:00 p.m.]

I would go to our government’s larger vision. To promote student success in K-to-12 education, we need to make additional resources into early childhood education. That’s why we’re investing $1.1 billion over the next three years in child care services. That’s why we’ve created tens of thousands of spaces already, many of which are on school grounds. I think it’s over 3,000, just in the last couple of years, of new, high-quality early childhood education spaces.

Now we want to help alleviate the child care situation for parents whose kids who are little bit older, between five and 12. The consultation, therefore, has been going on for some time. We have worked very closely with the B.C. School Trustees Association, who were consulted on this legislation and consulted long before the legislation about how we might be able to respond to demand and how we might be able to use the school communities to meet the needs of families that they serve — yes for educational instruction but more for the life of the family more broadly in their community.

We have consulted specifically with the First Nations Education Steering Committee, Métis Nation B.C. and the entire child care community. Of course, we capped that off with the Early Learning Summit that had representatives from all 60 school districts invited to it. We have regularly liaised with the B.C. School Trustees Association regional chapters about government’s direction and moving forward on some of the ideas that have been generated during the consultation engagements. It has resulted in the legislative package that’s for consideration before the Legislature today.

D. Davies: I think I have a question later on, but I’ll save it till then.

With the new employees, the ECE instructors that will be required under the school district program, will they be required, then, to be in a union of some sort?

Hon. R. Fleming: I would say this. I’ve been consulting about this legislation. It’s most likely based on the indication of what school districts have told us. Many of them will retain the current partnership model they have with third parties, which may or may not be represented by a union. I’m not sure we have statistics on that. But those community organizations are likely to be able to expand provision of services if that’s the direction the district wants to go.

[4:05 p.m.]

I want to stress this: it’s up to school districts to decide. And if they do want to directly license their own in-house before- and after-school operations, one would think that it would raise questions around who the workforce is and how they will staff that model as an employer. They would likely look to their existing employee groups.

I mentioned earlier this afternoon, in debate, that it may be that some districts — and I’ve certainly heard this anecdotally — would look to solve an underemployment problem they have with educational assistants by perhaps involving them in the provision of a new program of before- and after-school care, which would be great. It would help solve two problems at once: the retention issue they have with educational assistants and the parent wait-lists for before- and after-school care that are irksome to families and the communities.

I think another aspect of the member’s question was around who would staff these operations. I mentioned that the child care licensing regulations will be the exact same, whether it’s a district-run program or a third-party program.

It’s very specific in the licensing regulation who can and cannot oversee the provision of those kinds of services. It defines a responsible adult as a person who is at least 19 years of age, able to provide care and mature guidance to children, has completed a course or a combination of courses in child development, child guidance, health and safety, nutrition and has relevant work experience.

D. Davies: Thanks, Minister. I just want to confirm that it will be up to the school districts, then, if they wish to unionize their child care workers or not. Is that correct?

Hon. R. Fleming: The short answer is yes. It’ll be up to the school district, and I’m sure they have contractual relationships and other obligations, as an employer, to talk to all employee groups if they’re represented by a union today. I imagine in that situation, the employer will engage with unions if they are certified at a school. But this legislation before us is not prescriptive on the question that the member asks.

D. Davies: Obviously, one can see that providing non-unionized employees within the union work environment would be unique, so it will be interesting to see how that moves forward. That moves into the next question, then.

In the event of job action that might happen within a school, whether that’s teachers or support staff, would there be provisions then? Could there be or are there provisions, I guess, that have been looked at in regards to this? And what would happen with the before- and after-school care programs? I’m saying this could all of a sudden, in a quick hurry, leave a lot of people without child care in this model.

Hon. R. Fleming: I think the answer to the member’s question is that this legislation touches or changes in no way the labour code that governs what a work stoppage looks like and what the parameters of a work stoppage, if it were at a school or any other workplace, would involve in terms of the use of a property that’s behind a legal job action.

D. Davies: Okay. Just another question around, I guess, if this could mean…. We’ve got quite a few portables already throughout the province in different school districts — some worse than others, obviously. Could this mean more portables that may remain on school grounds with this before- and after-school care coming into place?

[4:10 p.m.]

Hon. R. Fleming: Again I go back to a previous answer where I characterized what this is going to do and why this is, potentially, a game-changer for the school system. It allows them to be directly involved in maximizing the space that they already have.

This isn’t about adding portables, per se. That space could already be in portables, or it could be in a school building. It’s really about expanding the hours beyond 8:40 to three o’clock — before school, after school. Where we have early childhood education programs or preschools that are run by third parties, it could be about adding yet another program provider — before- and after-school care. This is about drawing the school district community in to help us, as a government, work with parents to create more before- and after-school child care spaces, because we know there is demand, using a greater portion of the building, perhaps.

In some instances, where the district, if they’re merely in a landlord-tenant relationship with a third party, became a direct provider themselves, they might a little bit feel more comfortable using atriums and libraries and other school spaces that typically get locked up shortly after three o’clock and use them for a longer period of the day. That would be great. We expect to see a lot of that. It’ll allow us to deliver enhanced child care spaces and reduce those wait-lists much more quickly than waiting for something to be built.

I think that’s really…. For the member’s benefit, one of the main intents of this legislation is to allow districts to see themselves as having a greater stake in the provision of these services — they’ve become somewhat of a community standard and expectation — and be able to use the facilities that the taxpayer has already built in the community and use it for longer hours than, as I said, between 8:40 and three o’clock.

D. Davies: Thank you, Minister, for that. I certainly understand maximizing the use of a public building. It makes a lot of sense.

Just to follow up a little bit on the portables. I guess the scenario that could play out is…. Many school districts — I’ll use Surrey as an example — are in dire need of working toward removing portables. We start seeing other school districts where they, for whatever reason, have made more room or there’s been an expansion, maybe, on the school or loss of students — the numbers have gone down — and they don’t require a portable on that site. Would there be…? Now we’ve got a portable that’s empty on a school district piece of land.

Would school districts be encouraged to either, “Hey, let’s get rid of the portable,” or now that we’ve opened up space, even though it’s in a portable, would that…? That’s an opportunity to put a child care space in there, or child care spaces.

Is there going to be encouragement from the ministry to continue with removing portables, or are we going to start seeing our portables on our schools now becoming before- and after-school care programs?

[4:15 p.m.]

Hon. R. Fleming: I think the member is asking me to go down a whole bunch of hypothetical, very granular situations. The short answer is that the school district will retain a huge degree of autonomy for what they want to do.

I think, in the scenario that he just described, it would be up to the district to decide what they wanted to do. In a situation where they had, I think, in his example, fewer students, less enrolment, and therefore a surplus portable, whether they wanted to engage with an early childhood education provider in addition to before- and after-school care would be up to the district to do that.

What we don’t want to see — and, I think, is a stronger outcome of this legislation in terms of our public policy goals — is child care spaces evicted that have been paid for, with the funds of government, specifically to become child care. The school districts understand that. We have a very strong partnership and agreement with them on that.

I would go back to my earlier answers about the intent of this legislation. It’s about maximizing the efficient use of existing space. We’re only talking a few hours here — that align with their parents’ hours at work, before school and after school.

D. Davies: I appreciate that. It sounds like a lot of this will be placed on the school district on how they want to see it best benefit their communities, which is good.

Just a couple of quick follow-up questions just to get on the record and to clear some things up. Would it then be up to the school districts, or are there some limiting pieces of this legislation that require how long they could possibly provide daycare or after-school care? Could they go to nine o’clock at night, or would that still, again, be up to the individual school districts to decide that?

A second question would be: what things are in place regarding…? Coming out of the system myself as a school teacher, the classroom that I was in — that was my classroom. I spent a lot of time setting the classroom up. It’s my office space. I’m just curious as to what it looks like as school districts now are opening up the schools to provide after-school care and utilizing maximum space of the school. I suspect there’s going to be, probably, a little bit of conflict that’s going to come from, you know, “What do you mean you want to use the classroom?” and what that’s going to look like.

I’m just wondering if the minister has a way to deal with some of these things. Is that, again, going to be thrown back to a union issue that’ll need to be dealt with, or is that going to be up to the school principal to deal with?

Hon. R. Fleming: The hours of operation would be a board operating decision. They would decide whether they wish to have it past 6 p.m. Then it would be subject to the licensing regulations, so they would have to have that inspected and signed off. I think that’s the best answer I can give him, and that’s current practice in the sector.

In terms of whether a teacher might not like to have their classroom used before and after school, it’s going to be up to school districts to lead those kinds of discussions in school communities. We trust them to do that on virtually everything to do with their facility management today.

[4:20 p.m.]

It’ll be no different after this enabling legislation allows them to pursue the discussions and the local policies on those sorts of things. I’m sure there will be some teachers who don’t want their things disturbed at all, and there will be other teachers that would welcome it because they’re currently using the classroom space in a manner identical or similar to the one that we’ve been describing this afternoon.

I think the most important thing, though, is to give districts the time to figure those kinds of operating decisions out. We trust them to do that in so many instances on so many parts of the scheduled day that happen each and every day in our school system.

Section 15 approved.

On section 16.

D. Davies: Just a few questions on section 16 here. First question: I’m just wondering what initiated the minister’s decision to remove reference to the learning improvement fund from this existing legislation.

Hon. R. Fleming: I would describe this as a housekeeping amendment that the legislative drafters flagged for government. It refers to, in legislation, in law, a fund that is defunct and no longer exists. The member might recall that the reason why it doesn’t exist was outlined on March 3, 2017, in a memorandum of agreement that was signed by the then government of the day with the B.C. Public School Employers Association that transferred the learning improvement fund into the classroom enhancement fund. That was about $80 million at the time.

I would add that the classroom enhancement fund is now in excess of $400 million annually, so the learning improvement fund has been substantially overshadowed by the classroom enhancement fund in terms of the funding it provides to the school system. There is no LIF anymore. LIF has become CEF. It’s a good idea to not have, in your statutes, references to things that don’t exist anymore.

D. Davies: Thank you, Minister. I’m not sure if I missed it quickly. The classroom enhancement fund. How much is the funding for that fund now?

Hon. R. Fleming: The classroom enhancement fund is currently approximately $465 million per annum.

Section 16 approved.

On section 17.

D. Davies: Regarding section 17, another consultation question. Can the minister identify and explain to the House who he consulted with and what the consultation process looked like regarding his position on the board surpluses?

[4:25 p.m.]

Hon. R. Fleming: Thank you to the member for his question. The genesis of this discussion that led to this section, I should say, of the legislation goes back some time. These have been active discussions in government with sector partners for many years. The member might recall there was a financial health working group that was struck in 2016 under the previous government that looked at the issue around reserves and reserve policies on the use of what are accumulated surplus funds from the operating grants of the Ministry of Education.

Then there was a funding model review, which looked at the entirety of how public education is funded in British Columbia. It delivered 22 recommendations. It had 350 to 360 submissions from all the sector partners. All 60 school districts participated in that funding model review. Of the 22 recommendations, the one that reflects section 17 of this bill most closely is recommendation No. 20 of that report.

The member will recall that we have sought to implement the recommendations through two phases. The financial management one was something that all the stakeholders agreed should be pursued immediately, at the first opportunity.

Just to give the member an idea of who has been involved in the financial model review, as well as the financial management working group, which was one of the four working groups that flowed out of that review, we have the B.C. association of school board officials; B.C. Confederation of Parent Advisory Councils; B.C. Council of Administrators of Inclusive Support in Education; Distributed Learning Administrators Association; Principals and Vice-Principals Association; B.C. School District Continuing Education Directors Association; B.C. School Superintendents Association; B.C. School Trustees Association; B.C. Teachers Federation; BCEdAccess, which is a special needs parent advocacy organization; Canadian Union of Public Employees B.C.; the English Language Learning Consortium; the Family Support Institute of B.C.; the First Nations Education Steering Committee; Inclusion B.C.; Métis Nation B.C.; and the Ministry of Advanced Education, Skills and Training.

The Office of the Auditor General was involved. The Representative for Children and Youth and the Rural Education Advisory Committee were part of the funding model review. Many of those partners directly sat at the financial management working group.

D. Davies: Great. Thank you, Minister, for that. Does this enable the minister to require school boards to spend the existing reserve prior to spending funds allocated by the ministry in that current year?

Hon. R. Fleming: The answer to the member is that this enables the Minister of Education, whomever that may be, to consult and develop policies with the school sector and set out what those policies look like, understanding that they’ll look different in different parts of the province. And to make that development or co-development of what the policies will look like on the use of reserves, we developed a memorandum of agreement between both the Ministry of Education and the B.C. School Trustees Association that establishes a protocol for school district reserves.

[4:30 p.m.]

We have the support of the B.C. School Trustees Association in this work. They understand what the intent of the legislation is. There’s no confusion about that. We also have a comprehensive agreement that outlines how we will consult them and by what deadlines.

[S. Gibson in the chair.]

D. Davies: Just on your last comment there, Minister. This enables the ministry to consult to develop policies with school districts in how they can use the reserves? I was understanding that. From what I understand, they cannot keep the reserves. So they can indeed keep reserves, as long as they develop policies around spending them.

I know there are a number of school districts that already have policies in place in dealing with moneys left over, if there are some — to special projects and such. For school districts that already have these in place, are they okay, then? Or is this around maybe some of the school districts…? I’m not sure, all school districts, if they have policies in place. Is this just allowing the ministry, then, to go out to these school districts and develop policy?

The Chair: Minister.

Hon. R. Fleming: Chair, thank you very much. Good to see you.

Let me address the member’s last question maybe by just quoting from the memorandum of agreement that is going to outline the process we use to determine some the policies around reserves, which, right now, are under-sophisticated, if I can put it that way.

In terms of the purpose of the memorandum we have with the B.C. School Trustees Association, I will quote from this document.

“The purpose of this memorandum is to outline how the B.C. School Trustees Association and the Ministry of Education will work together to co-develop a provincial protocol for school district financial reserves in a manner that is consistent with the Auditor General report on school district budgeting and expenditure” — it’s 2016, for the member’s reference, that report — “the Financial Health Working Group report of 2017” — under the previous government, I would add — “and the financial management working group recommendations regarding the funding model review panel recommendations, 2019, as well as recognized best practices.”

I know that the member will know that the reserves, which are really operating dollars meant for student services and supports, go unspent at the end of each year. In some districts, they’re accumulating, and too much so. We have some districts that have reserves that are 145 percent of what their annual operating budget is. That’s really, really significant. But we also have some districts where their reserves are way too low, some districts with only 1 percent cash on hand in reserve of what their annual operating budget is.

What we have signed with the B.C. School Trustees Association is an agreement to come to a set of policies that make sense, that avoid the problem of having too much in reserve and too little, that keeps the school districts financially healthy and keeps the dollars that were originally intended for classroom investments used for an education purpose that is wise and beneficial to that school district in the community.

[4:35 p.m.]

D. Davies: Just looking at the Auditor General’s report, best practices, it all sounds good. I recognize some districts probably are doing this really good already, and some maybe are not. I guess it comes down to the school districts that have worked very hard. I know a number of the school districts that work really hard to make sure that the books are in order and they’re doing the best they can with the moneys that they receive from the government.

I can’t help but think that as this policy comes forward — this change in allowing school districts to have some autonomy over, control of, their surpluses and how they’re used — this seems like a control measure that the ministry is taking over. I just want to clarify, then, if that is the case — and it looks like it from within this bill — that anything districts do have, whether it’s from operating or otherwise, as far as a reserve, they have to seek the ministry’s permission to decide what to do. If the minister can clarify that.

Hon. R. Fleming: In terms of answering the member’s question, I would suggest that those districts that do manage their reserves well and manage to spend the annual allocation from the Ministry of Education on student services will probably see no change. In fact, I’m certain of that, because they will continue to be able to do that.

The changes that are contemplated are yet to be decided. They will be done not through prescriptive, unworkable legislation, potentially, where you try to guess what the right policy should be. They will be co-developed, instead, with the B.C. School Trustees Association to land at practical, realistic and fair sets of, for example, reserve fund policies.

The current problem that has been described over and over again to the previous government and to this government, indeed by the independent officer of this Legislative Assembly responsible for monitoring and overseeing public expenditure, is that the absence of policies is a problem. We need to fill that vacuum with good policies so that we avoid the situation I described to the member earlier.

If we have school districts underspending the funding for classroom learning supports, teachers and the provision of programs in their district — in other words, the money intended for kids is instead going into a bank account and piling up and accumulating at too high of a rate — that’s a problem. That’s not what it was intended for. Similarly, we want to work with districts that are too light in terms of their fiscal planning on having some level of reserve to buffet them when they might need it or to plan and pay for local improvements they might want to pursue autonomously.

Again, I’ll go back to this memorandum of agreement document with the B.C. School Trustees Association, because we have already agreed on what the consultation looks like and what the set of principles are, what the problem we were trying to solve together is. Let me just quote from this document. “The parties agree that system resources should be focused to the greatest extent possible on programs and services to students, with a focus on improving student achievement.” That’s the first principle that we’ve agreed to.

[4:40 p.m.]

“We agree that there is a shared responsibility for establishing purpose, transparency and accountability for the use of all resources to support student achievement.” That’s something that the member has undoubtedly heard from parent advocates. That’s something that school districts have said they’re not afraid of. They want to be able to do that as well. In fact, that’s why they’re embracing the strategic plans that are now required of them by government to be more accountable and transparent to their constituents.

Another principle that we’ve agreed on is that the boards will maintain the ability to establish financial reserves, noting that they should be adequate to meet identified needs and utilized as per their strategic plans.

Finally, we have already agreed on this principle, that boards will maintain their ability to set local programming and spending priorities in alignment with their strategic plans. In other words, this is not the ministry attempt to unilaterally guide. It’s an attempt to fill the vacuum I described earlier and co-create a set of policies that makes sense for the school system, no matter which community or region of the province it serves. That’s why we need the enabling section of this bill, to be able to pursue the agreement that we have with the school trustees to co-develop what that looks like.

D. Davies: Thank you, Minister.

I guess tying into that: are existing reserves that might already be in place going to be grandfathered against this bill, or are they going to…? Basically, if the school district has some sort of a project that they’re saving up funds for, is that now going to be going by the wayside and their reserves are now payable July 1 of this year?

Hon. R. Fleming: What I would say to the member is that we have to design the policy. What we’re enabling is the ability to set policy. We have consulted already on the creation of a process about how we set policies that make sense. So the member is jumping ahead to what a potential policy might look like. I can’t answer this question because those policies are going to be co-developed by those who administer the school system, the elected officials, the school trustees through their organization and the Ministry of Education.

Sections 17 to 20 inclusive approved.

On section 21.

D. Davies: Again, kind of going back to a question that I’ve asked in the last couple sections. If the minister could convey to this House what the consultation process looked like and what bodies were consulted. It may be a similar answer to the others.

Hon. R. Fleming: Maybe just so we don’t go over similar ground, this section outlines the parameters of what a ministerial order can contain. In terms of the process that I described in the previous few answers that the member asked, I would refer him to…. It’s the same answer. We have a memorandum that outlines the process about how we co-develop the policies. I don’t think I need to repeat it. I think it’s pretty clear that having developed that with the B.C. School Trustees Association and signing an agreement, there’s a high degree of comfort about us proceeding in this consultative fashion.

[4:45 p.m.]

D. Davies: I expected it was probably connected to the other ones as well.

Just looking at different standards for different school boards and how that looks across the province, I am just wondering how the ministry comes up with different standards for different school districts to come up with their reserves. If the minister has an answer for that.

Hon. R. Fleming: I think, in general, what I would say to the member is that I think we understand that you can’t have a one-size-fits-all set of policies, just as we don’t in terms of how we fund the different costs that are part of providing education in a rural remote setting in British Columbia. There’s accommodation on the operating side for that, just as we recognize diversity and difference in terms of the student population — whether there are English language learners or Indigenous learners, whether there are special needs funding categories and those sorts of things.

Similarly, we would look at the geographic diversity, the population size in determining the policies and developing them alongside the B.C. School Trustees Association. So I would refer the member to the text of the section 21(2.12)(c), which will allow a ministerial order, after consultation with this sector, to determine the amount that he was asking about by establishing a formula, a ratio, a percentage or other method of determining the amount.

D. Davies: Thank you, Minister. Just wondering in regards to…. Should school districts push back on some of these proposals and how they are brought forward and such, what is the ministry’s avenue forward to rectify a school board that’s not willing to comply with how the reserves are set up if they’ve already got a plan in place?

Hon. R. Fleming: My short answer would be that we’ll determine that as part of the discussions around what the reserve policies look like. The member will know that there are other provisions around those throughout the School Act for a number of accountability criteria where districts might fall out of compliance with the School Act.

I don’t want to go there immediately, but I think that after we co-develop what the reserve policies look like — after we contemplate things like what a reasonable transition might look like for districts to come into compliance — if there are some remaining outliers that have disagreements with the ministry, we’ll mediate it as we come. But I actually expect that we’ll encounter the opposite.

We have a very broad consensus, political support from the B.C. School Trustees Association. We also have a massive compendium of financial reporting information urging the government to do just what we’re going do in this bill — whether it’s from the Auditor General, whether it’s from the financial health working group that reported to the last government, whether it’s from the funding model review that reported to this government.

They all come down to this question that the absence of policies around reserves is a problem. It’s a problem in terms of accountability for those funds sitting in accounts: what purpose they should be used for, why they weren’t spent originally in the classroom on kids for their learning needs — all those sorts of things. Those are legitimate areas that auditors and other financial assessments have raised questions about.

[4:50 p.m.]

We’re going to solve those together and work at what a good set of working policies look like, after this bill passes, and we’re able to do just that.

D. Davies: I thank the minister for his answers. That actually concludes all of my questions that I have on this bill. I want to thank yourself, and thank your staff as well for their hard work on this.

Sections 21 to 33 inclusive approved.

Title approved.

Hon. R. Fleming: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 4:52 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 8 — EDUCATION STATUTES
AMENDMENT ACT, 2020

Bill 8, Education Statutes Amendment Act, 2020, reported complete without amendment, read a third time and passed.

Hon. D. Eby: I call second reading of Bill 13, Miscellaneous Statutes Amendment Act, 2020.

Second Reading of Bills

BILL 13 — MISCELLANEOUS STATUTES
AMENDMENT ACT, 2020

Hon. D. Eby: I move the bill be now read a second time.

This bill amends three family law statutes: the Family Law Act, the Family Maintenance Enforcement Act and the Interjurisdictional Support Orders Act to assist front-line ministry staff in providing family justice services to families.

The amendments to the Family Law Act allow parents to share information with a family justice counsellor about other people relevant to their matter, improve the ability of the child support recalculation service to comply with legislatively required processes, allow search officers to assist parties who want to obtain or enforce protection orders, and change terminology to align with the Declaration on the Rights of Indigenous Peoples Act.

Other amendments to the Family Law Act and amendments to the Family Maintenance Enforcement Act authorize search officers and support enforcement officers to request the social insurance number of the debtor with significant support arrears so that appropriate enforcement action can be taken.

[4:55 p.m.]

Amendments to the Interjurisdictional Support Orders Act will make it easier to enforce foreign support orders.

[S. Gibson in the chair.]

The amendments also include minor housekeeping changes. The amendments to the Lobbyists Registration Amendment Act, 2018 correct two subsection reference errors. These corrections are required before the provisions of the Lobbyist Registration Amendment Act, 2018, come into force on May 4, 2020.

The Ministry of Attorney General is seeking to amend the Supreme Court Act to allow the appointment of five more Supreme Court judges. Currently, the Supreme Court Act specifies that the Supreme Court will consist of a chief justice, an associate chief justice and 90 other judges. The proposed amendment will allow for the appointment of five more judges, for a total of 95 other judges. Increasing the resources to the Supreme Court will benefit the citizens of B.C. by providing better access to justice. Increasing the permitted number of Supreme Court judges will ensure that the federal Department of Justice can appoint Supreme Court judges as necessary to address any increasing demands on the court system in British Columbia.

For the first time in Canada, the Land Owner Transparency Act will end hidden ownership of real estate by creating a publicly accessible registry on beneficial land-ownership. These new requirements will help tax authorities, law enforcement and certain regulators to crack down on tax evasion, money laundering and other criminal activities. This is a significant step towards returning fairness and transparency to B.C.’s real estate market, and it delivers on our 30-point housing plan’s commitment to end hidden ownership of land.

During work to develop the registry, some small technical requirements were identified that would impact the ability to create a transparent and searchable registry. This bill proposes amendments that will resolve those challenges. These amendments are technical and do not change or impede the intent of the original act or the registry’s role in returning fairness and transparency to B.C.’s real estate market.

The proposed amendments to the Water Sustainability Act, or WSA, will provide the province with the explicit authority to collect, use and disclose personal information related to water use and will make administrative corrections. The collection used in disclosure of personal information related to water is already authorized under the WSA. However, the act lacks explicit authority respecting the collection, use and disclosure of information obtained from indirect sources, such as the land titles registry, and personal information for which consent may not have been obtained.

Collection of information from indirect sources and the use and disclosure of personal information is critical to the operation of the WSA scheme. For example, information published on public-facing water registries is necessary for buying or selling a property with an associated water licence in times of water scarcity and for public health reasons. Currently, interim authority under the Freedom of Information and Protection of Privacy Act has been granted to authorize the collection, use and disclosure of personal information under the WSA until December 31, 2021.

The proposed amendments to the Pharmaceutical Services Act and E-Health Act in this bill are relatively minor. On October 31, 2019, Bill 35, the Miscellaneous Statutes Amendment Act (No. 2), 2019, received royal assent, enacting amendments to the Freedom of Information and Protection of Privacy Act, or FOIPPA, by adding two new paragraphs within subsection 33.1(1), which outlines when a public body may disclose personal information outside Canada. Although the amendments to FOIPPA have already come into force, these amendments do not apply to data governed under the Pharmaceutical Services Act and the E-Health Act, both of which reference specific paragraphs under FOIPPA subsection 33.1(1) but were not amended to include the newly added paragraphs (p.1) and (p.2).

It is proposed that the Pharmaceutical Services Act and the E-Health Act be amended to align with the recent amendments to FOIPPA by adding references to paragraphs (p.1) and (p.2) of subsection 33.1(1) of FOIPPA within the two acts.

Minor housekeeping amendments to the provisions of the Adoption Act, Assessment Act, Building Act, Evidence Act, Land Title Act, Miscellaneous Statutes Amendment Act (No. 3), 2010, Motor Vehicle Act, New Relationship Trust Act, Trespass Act and Vital Statistics Act are proposed to ensure terms of the Nisg̱a’a treaty are referenced correctly in these acts and are consistent with the treaty. Most of the amendments are to provisions that reference legal entities, as they do not correctly reference the Nisg̱a’a treaty’s legal entity term. The provisions currently use the term “Nisg̱a’a Lisims Government,” which is a legislative entity as defined by the treaty. The appropriate term to reference is “the Nisg̱a’a Nation” as the legal entity.

Additional minor amendments will appropriately characterize other Nisg̱a’a treaty items and terms and remove redundancy. The proposed amendments do not change policy or law. The Nisg̱a’a Nation is supportive of the amendments.

[5:00 p.m.]

The current B.C. Labour Mobility Act contains out-of-date references to the agreement on internal trade, which was replaced with the Canadian free trade agreement in July 2017. Because of its reference to the agreement on internal trade, some portions of the Labour Mobility Act ceased to have legal effect when the Canadian free trade agreement was implemented. The proposed amendments will update the Labour Mobility Act with the necessary references to the Canadian free trade agreement, restoring the act’s original effect.

There are no fiscal management considerations and no trade or stakeholder impacts resulting from these amendments. There are also no implications for immigration.

To the extent the amendments will impact labour supply in B.C., it’s expected to be positive. These amendments will help ensure that certified professionals from other Canadian jurisdictions can continue to transfer their credentials to B.C. without unnecessary barriers and provide much-needed services to British Columbians.

The amendments to the Guide Dog and Service Dog Act are intended to achieve two things. First, they will address a widespread misperception that provincial certification under the act is mandatory and is a prerequisite to public access rights for guide and service dog teams. This will be done by clarifying that nothing in the act takes away from individual rights under the B.C. human rights code.

Second, they will change the certification processes for guide and service dog teams and dog-in-training teams. The high standards of internationally accredited guide and service dog training schools will be recognized by streamlining certification for guide and dog teams that come from those schools, including teams that are visitors to B.C.

Certification for guide and service dog training teams will also be modernized so only the trainer needs a certificate, rather than both the trainer and the dog in training.

M. Lee: I just would like to add comments at this stage of second reading on this miscellaneous statutes bill. As we’ve talked about in this House, the government has repeatedly brought forward miscellaneous statutes amendment bills. Many of the provisions, in some cases, are important to consider, given the time and resources of this House. But some of them are very much housekeeping.

I continue to question the role of the legislative committee on Parliamentary Reform and ethics and the role that they can play, as I’ve seen as a member of that committee, in terms of dealing with housekeeping amendments. But such as it is, this government has chosen to utilize the valuable time of this House to consider another miscellaneous statutes amendment act.

I say that also recognizing, as we continue in this session, the importance of other private members’ bills that have been reintroduced to this House, pressing matters that ought to deserve the time and attention of this House, and are not. I hope that the government will continue to consider looking at those bills.

We talked today in question period relating to the split class assessment bill that my colleague the member for Kamloops–South Thompson introduced — a very pressing matter, a solution that is there. As we talk about miscellaneous statutes, we could talk about a lot of statutes in this House that ought to deserve the attention of this House. When we’re talking about miscellaneous statutes, we’re talking about the full range of all the statutes of this government. I think it’s important that we spend the time and effort and resources of this House to debate the private members’ bills that have been put forward to this Table of this floor of this House.

Having said that, I want to come back to a point that I made yesterday, as well, on the Arbitration Act. As you know, we spent time yesterday on the Arbitration Act in committee stage looking at Bill 41, a very significant bill passed by this government in the last session. We know that what that bill committed this government to do was to use all necessary means to ensure that the laws of British Columbia were consistent with the declaration of the rights of Indigenous peoples.

I know that there are some housekeeping amendments in this bill that change the term “Aboriginal” to “Indigenous” in the absence of the action plan that this government committed to do. It’s been months. That’s what the Minister of Indigenous Relations and Reconciliation had committed to members of this House, including my colleague the member for Abbotsford West and myself, in committee stage. Yet we still have not seen that action plan.

[5:05 p.m.]

In the absence of that action plan, we are left to wonder about the process this government is following to ensure that the laws of British Columbia are consistent with UNDRIP. It’s a 20- to 30-year process that the government has suggested it would take. In the absence of that action plan, we are left wondering on various statutes, the statutes that they have brought forward.

Is it intended that this government intended only to change the word “Aboriginal” to “Indigenous”? Was that what UNDRIP was about? I suggest that this government has raised lots of expectation with this province, and we need the clarification, for this House and for the public, as we look at bills like this.

With that, I would also say that I will be joined by my colleagues, other critics, on the various sections of these bills. We will see that there are elements relating to privacy and personal information that are dealt with, which, once again, as it dealt with in Bill 35…. I’ll comment on it in a moment.

Given the broad nature of this bill, I will just choose to spend the time that I have here at second reading commenting on a number of them specifically.

In terms of the Attorney General amendments, we certainly see the need to continue to look at our courthouses, our access to justice, our ability to ensure that the wait-lists — the timing, the delays in bringing on actions — are properly dealt with in a timely manner in our courts. Adding five additional Supreme Court justices certainly will be a good effort towards that.

As we know, it is also the ancillary resources — the important roles of sheriffs, court clerks, Crown counsel, legal aid, legal assistants — for the smooth running of courthouses around this province. As we look at areas in Fort St. John and Surrey, for example, the busiest courthouses in our province — I visited both — we have seen the need for the continued buildup of resources for those courthouses, both from a personnel point of view and also from a space point of view, certainly in the case of Fort St. John.

I certainly will look forward to the opportunity to discuss, with the Attorney General, besides just the estimates process, how the implementation will occur in bringing on five Supreme Court justices here.

We look at the finance amendments around the Land Owner Transparency Act. Certainly, there are amendments being made to that system. It’s an important system, and we will want to ensure how public information is being accessed relating to beneficial ownership. One instance is that database will be searchable and usable under the terms of that act, for the good purposes of that act that we will see. But we need to continue to ensure and understand how and when information is going to be shared and ensure that sensitive personal information, which is being acquired under this act, is protected from misuse.

In terms of part 3 of the bill, there are amendments to the Water Sustainability Act. Some of those amendments concern changes and updates of terminology in the act. Others are to address acts of vandalism. Certainly, in terms of making more understandable the provisions of that act…. We understand that, of course, there has been a reliance on certain authorizations from the Office of the Information and Privacy Commissioner and other ministerial orders that this act — these amendments to the Water Sustainability Act — are meant to address. But again, we want to ensure that the types of personal information that are being accessed and utilized are properly protected.

That is a continued theme, which takes me to part 4, which are the amendments to both the E-Health Act and the Pharmaceutical Services Act. This set of amendments was canvassed at length in the last misc stats bill, Bill 35, in the fall.

[5:10 p.m.]

I joined members, colleagues of mine, who were the critics for our caucus, in talking about those provisions, the amendments to FOIPPA. This set of amendments will bring in reference to the amendments that were made under Bill 35 to FOIPPA. They include references to sections 33.1(1)(p.1) and (p.2).

Mr. Speaker, as you might recall, in the midst of that debate, we raised concerns about the letter that was received within a few days of that debate from the Office of the Information and Privacy Commissioner expressing concerns that, although he recognized the intent of dealing with temporary processing and storage of information outside of Canada, the amendments that are being tabled that were passed under Bill 35 were too broad in nature, and that in order to better protect the privacy of British Columbians while meeting the intention of the amendments, it was necessary to consider, at his urging, certain amendments that would restrict where personal information would be treated, processed and stored offshore.

There’s language here I just want to cite back into the record, that there are concerns around ensuring that the language is not too permissive. I say that when we’re talking about e-health records and pharmaceutical services records. This government is extending what we identified to be an issue now to other statutes of our province. And when it comes to our health records and our pharmaceutical records, I think that’s a concern. It’s a concern that the government did not heed the advice of the office that is set up as an independent body to ensure the proper protection of information and privacy in our province.

In the face of this letter dated October 9, 2019 — which, again, we canvassed at length and proposed formal amendments in the last misc stats committee process — the government is now continuing on to extend the application of what the commissioner has seen to be too broad, too permissive, and has concerns relating to how personal information will be temporarily accessed outside of Canada when being processed.

Certainly, we will be canvassing again the concerns that were addressed by the commissioner when it comes to our health records and our pharmaceutical records. We are talking, likely, about stats — statistics and data relating to when individuals, British Columbians, are coming in and out of hospital — their hospital stays, the length of their stays, their medications, personal information that I think, from a health records point of view…. We saw the concern of this country, across Canada and here in this province, about the security breach around LifeLabs and that information on the health data for many British Columbians that was exposed and the delays in which that entity brought it to the attention of others, including this government.

I think in the context of greater information flow and data that is being stored and utilized by services like that, universities like Simon Fraser University, which also had a recent breach, major institutions….

[5:15 p.m.]

It’s one thing to ensure that we have proper protection of that data and information domestically, but it’s an entirely different concern, as well, when it goes offshore. This government is permitting that to happen in a very loose and undisciplined way. These are the concerns that were expressed by the commissioner. When it comes back to that debate, we will be analyzing — with my colleagues again, the critics for Citizens’ Services — in more detail those concerns.

I’d like to just say that as we look at the various other housekeeping amendments that are necessary in terms of the Nisg̱a’a treaty and the Canadian free trade agreement, those certainly are understandable. Certainly, critics may have some additional questions around that here on this side of the House.

When we look at the Guide Dog and Service Dog Act…. I understand from a colleague of mine who participated in the briefing on that, that we’ll want to better understand, as well, the designation of which entities would be certified for the purpose of that service and how that will be done under regulation.

With that, Mr. Speaker, I look forward to joining colleagues of mine as we discuss another misc stats bill.

Hon. S. Fraser: I’m pleased to be taking part in the discussions on second reading of Bill 13.

Before I get into the meat of my chat here in this wonderful place on Bill 13, I’d like to just address some comments made by the previous speaker, the member for Vancouver-Langara, regarding, somehow, the integrity of the UN declaration on the rights of Indigenous peoples — the declaration act, Bill 41. I will agree with the member on one thing: that Bill 41 was canvassed at length by the member opposite and others from the opposition. I believe it was 24 hours of questioning, if I recall correctly.

I’m pretty sure that during committee stage of the bill, I referenced the fact that we built the legislation in collaboration with First Nations, represented through the First Nations Leadership Council — that’s the First Nations Summit, the Union of B.C. Indian Chiefs and the Assembly of First Nations of British Columbia — and that the path forward that it provided government included the development of an action plan, and that that action plan would be built similarly involving Indigenous peoples and not done by government and dictated to anyone but built cooperatively with Indigenous peoples in this province.

If the member is somehow suggesting that because Bill 13 doesn’t contain an action plan…. It’s a miscellaneous statutes amendment act. It has got nothing to do with Bill 41. The good work that we are doing on the action plan — which is part and parcel of what’s in Bill 41, the Declaration on the Rights of Indigenous Peoples Act — is being done and will be done cooperatively in partnership with Indigenous peoples. That work is underway.

I just wanted to correct the member. Bill 13 in no way detracts from the work that’s already underway on Bill 41 and the implementation of the action plan.

With that in mind…. A miscellaneous bill is always interesting, because you get a bunch of different topics here. Hon. Speaker, I would like to talk to you about the act in the sense that it proposes an amendment to a number of statutes. I’ll focus my comments on the part of the bill put forward by my ministry.

[5:20 p.m.]

In 2010, this House approved a bill that made amendments to several statutes that refer to terms of the Nisg̱a’a treaty. A number of those amendments use the wrong Nisg̱a’a term in some provisions that apply to legal entities. For example, the term “Nisg̱a’a Lisims Government” was used where “Nisg̱a’a Nation” is the appropriate and proper reference. One is a legislative body; the other is the legal entity in accordance with the treaty. Unfortunately, by the time the errors were realized, the amendments had passed. But a name is important. It’s about respect.

Over the past year and a half, my ministry staff have been working with the Nisg̱a’a Nation representatives to correct those errors. We felt that it was very important to make sure that all Nisg̱a’a terms aligned with the language in the Nisg̱a’a treaty. As a result of this work, we identified a few other minor amendments, including some redundancies that are also being addressed with this bill. None of these amendments change policy or law in the noted statutes.

As I stand today talking about matters that relate to the Nisg̱a’a treaty, I’d like to acknowledge that the Nisg̱a’a people will be celebrating a significant milestone this May: 20 years as a self-governing nation. An entire generation of Nisg̱a’a youth have now grown up as citizens of a self-governing treaty nation.

The Nisg̱a’a lands are a beautiful territory, one I’ve been honoured to spend some time in. I would recommend to anyone in this House, anyone who is watching, who has not had that opportunity, to put it on the bucket list, because it’s an amazing territory. There are lava fields that I didn’t know existed in this province. I didn’t think that we had anything like that here. Spectacular scenery. It was a wake-up call to me to travel more, and I travel a lot already. But Nisg̱a’a territory is second to none. It is spectacular, jaw-dropping beauty.

When I was there, I saw how hard Nisg̱a’a’s leadership and also the community have worked to develop and grow a diverse and innovative economy. They have established a strong economic presence in construction, in forestry, in fishing, in tourism, providing a good future for the Nisg̱a’a people today, of course, and in the future.

The relationship that we are building with the Nisg̱a’a Lisims Government is an important one. I am looking forward to celebrating the 20th anniversary this spring.

I want to thank you for the opportunity to speak to Bill 13.

Deputy Speaker: Seeing no further speakers, I’ll invite the Attorney General to close debate.

Hon. D. Eby: The critic has raised some issues of concern that we’ll be addressing with him through committee stage. At this point, I’ll simply note that miscellaneous statutes are a tool used by governments throughout B.C.’s history to ensure our statutes are as accurate and as correct as can be and represent evolving situations on the ground that are important to many different communities in the province.

With that, I move second reading.

Motion approved.

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

Bill 13, Miscellaneous Statutes Amendment Act, 2020, 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. Eby: I call second reading of Bill 9, the Evidence Amendment Act, 2020.

BILL 9 — EVIDENCE AMENDMENT ACT, 2020

Hon. D. Eby: I move that the bill be now read a second time.

This bill amends the Evidence Act to allow us to better achieve the just, speedy and inexpensive determination of personal injury claims in a manner proportionate to the value of the claim in the courts of this province. These amendments will discourage the use of duelling adversarial experts that can have the effect of artificially driving up claim amounts and certainly has the impact of increasing expenses. Parties will still have the ability to use experts, but the number of experts will be limited.

[5:25 p.m.]

In response to previous concerns, the court will also have discretion to allow the parties to use more experts than the limits allow where it would still be proportionate and it is needed to avoid serious prejudice to the parties participating.

The costs a party can recover for expert reports will also be limited through a regulation-making authority. These changes will encourage parties to select experts in a way that is proportional to their injuries and their claims at the outset of the litigation process. Closely related improvements will encourage parties to disclose their expert reports earlier, which could promote earlier resolution and thereby reduce costs.

There will also be changes meant to encourage the use of joint experts or independent, court-appointed experts to provide neutral expert opinions to assist the court, to promote the principle of proportionality and manage the growing costs of litigation.

The bill also includes a regulation-making power to link the amount of costs a successful party can recover to the overall amount of the award assessed by the court. This limit will encourage proportional spending on the litigation process and help to discourage parties from incurring costs that are disproportionate to the amount in issue in a motor vehicle personal injury case. Initially, these changes will apply only to motor vehicle personal injury litigation.

The bill includes detailed transition provisions that are fair to parties already in the litigation process, but encourages parties whose claims are at an early stage to adopt a more proportional approach. In brief, people involved in cases that have progressed to a certain point will not be limited by restrictions on experts or recovery of costs.

We are optimistic that this careful balance will help to realize the anticipated cost savings to the benefit of all British Columbians. This bill includes a regulation-making power to permit the expansion of these improvements to all forms of personal injury litigation at a future date.

M. Lee: If necessary, I will take the opportunity to be the designated speaker on this bill.

I rise today to speak to Bill 9 on second reading. The proposed amendments in the Evidence Act under this bill are a continuation of this government’s efforts to reduce costs for ICBC by limiting the number of expert witnesses in a personal injury lawsuit. The Attorney General’s previous attempt to make this change through regulation, rule 11-8, was found to be unconstitutional last October by the hon. Chief Justice Hinkson of the Supreme Court of British Columbia.

I have significant concerns about this bill and its harmful impacts on the rights of injured British Columbians. This bill clearly steps on the rights of British Columbians and limits their access to justice. The cost-saving measures for ICBC under this bill, even with the possibility of limited exceptions to be determined by regulation, make it even more difficult for people who have been injured in a motor vehicle accident to get full compensation for their injuries. It puts up greater barriers to justice. That simply is not in the best interests of British Columbians.

We have an Attorney General who, prior to being elected to this House, was a former executive director of the B.C. Civil Liberties Association. In that role, he fought for the rights of British Columbians. Yet in this bill, as Attorney General of our province, he is taking away rights of British Columbians. In so doing, the Attorney General is changing the litigation rules to favour this ever-growing insurance company that is ICBC. It is making an unlevel playing field to favour ICBC, which is just getting bigger and bigger, and undermines the abilities of British Columbians to recover their damages from motor vehicle accidents. This clearly is unfair.

You have an Attorney General of this province who is clearly not doing his job to protect the rights of British Columbians. The rule changes proposed under this bill will affect 90,000 outstanding lawsuits for injured British Columbians and their families.

[5:30 p.m.]

Why should the insurance company, ICBC, which British Columbians have bought insurance from, be able to change the rules of recovery for damages for injuries after a person gets injured and brings a lawsuit — and, in so doing, undermine the person’s ability to seek that recovery in the courts?

[R. Chouhan in the chair.]

This government is limiting the ability of British Columbians to advocate for themselves against the insurance company, which would have no limits on the number of expert reports that it could bring on. Let me just comment on that.

This bill is proposing to limit the number of expert reports. ICBC has no limit on that on their side. That is unfair. That creates a situation where a plaintiff, an injured British Columbian with their counsel, seeking recovery for damages in a serious car accident is limited in what he or she can bring on. Yet ICBC, on the other side of that, can get as many expert reports as it can. There’s no limit on ICBC. It’s an unfair fight. It’s an unfair process.

Why is the chief legal officer of this province helping ICBC to do just that? Which side is the Attorney General on? Clearly, in the current system that we have in this province, he is changing the rules in favour of ICBC and against injured British Columbians. It is clear from the Crowder decision of B.C. Supreme Court Chief Justice Hinkson, dated October 24, 2019, that the changes that were being brought forward under rule 11-8 that were ruled unconstitutional by that court were solely focused on cost savings for ICBC.

Paragraph 45 of the Crowder decision is most illuminating. It is a statement from Ms. Lindsay Matthews, the vice-president of public affairs for ICBC. When she is commenting in response to the court about the projected $400 million of savings that the Attorney General has said repeatedly was the aim of limiting the rights of injured British Columbians by limiting the number of expert reports they could utilize, this is what she had to say.

Of the estimated $400 million in savings, “the approximate breakdown of the savings is expected to be: about half due to fewer reports — 40 percent from the plaintiff reports, plus 10 percent from defence reports.” About half of that $400 million would be “due to lower payments for damages. More expert reports make claims more expensive.”

Well, I think the last part of that quote is the most significant portion of what Ms. Matthews had to say. It is what underlies what this government continues to try and do. In the face of a decision of our Supreme Court of British Columbia that limiting the number of expert reports and interfering with the discretion, the judgment, of the courts in their process is unconstitutional, this Attorney General and this government persist by tabling in this House a bill that has the potential again of being challenged and being ruled unconstitutional for the same reasons that Chief Justice Hinkson laid out in his decision. Many of the same concerns that were set out in the Crowder decision are at play with this bill.

[5:35 p.m.]

What is that for? It’s under the theory and the approach that more expert reports make claims more expensive. But what does that mean? That means the $400 million of savings that the Attorney General and this government were projecting to be saving by limiting expert reports — at least $200 million, in the words of the vice-president of public affairs of ICBC — is going to be because there will be lower payments for damages. Well, why is that? Again — fewer expert reports, fewer claims, less expensive, less payouts.

But what are those expert reports for in the first place? They’re there to assist injured British Columbians to recover full compensation from ICBC as the insurer. By limiting those expert reports, you limit what they can recover. So this is just a situation and an approach — which, again, has been ruled unconstitutional — that has been one where you’re shifting all of the financial loss onto the backs of injured British Columbians by excepting and kneecapping their ability to recover full compensation.

Does that sound like an Attorney General that’s being mindful and focused on the rights of injured British Columbians? I dare say that sounds more like a minister responsible for ICBC concerned about cost. Well, cost is not what is all at stake here, not when it comes to a limitation on expert reports and this Evidence Amendment Act.

Before I go back to the Crowder decision, I also want to make this set of remarks, if I may. I have said, by way of comment…. We had the occasion in estimates to discuss the concern that I have, which has been raised, as well, by the media. As this bill is tabled in this House, it’s another example of the inherent conflict of interest that I just alluded to. We have the Attorney General who is there to be responsible to look out for the rights of injured British Columbians, and all British Columbians, making sure that they have access to justice, yet he has brought forward a bill that places the financial interests of ICBC above all else.

As I ask that, who around that cabinet table is protecting the rights of injured British Columbians in the face of the court’s decision to say that limiting expert reports is unconstitutional?

My repeated concern has been that the Attorney General continues to misuse his office as Attorney General for the benefit of ICBC. The minister in charge of ICBC is supposed to be there, presumably, as a revenue minister. He’s focused on the government’s bottom line. That role and that responsibility as minister responsible for ICBC is directly in conflict with his role as Attorney General. I know that was even noted by the courts in their decision in Crowder — not in the written decision but, as I understand, in the nature of their discussions.

I would say that this is plainly evident. And the Premier of this province owes a responsibility to this province to ensure that he’s constructed a cabinet that doesn’t place the member from Point Grey in a direct conflict of his responsibilities. This Evidence Amendment Act directly isolates out that conflict. It brings to the floor of this House a bill sponsored by the Attorney General that is in direct contravention of the findings of the Supreme Court of British Columbia.

[5:40 p.m.]

The Chief Justice of the Supreme Court of British Columbia has said that limiting the expert reports under rule 11-8 has been ruled to be unconstitutional. There is an inherent conflict of interest between the roles that the member from Point Grey is playing for this government. It continues to undermine the rights of injured British Columbians.

We have seen that at length. We have seen that in terms of the way that the Attorney General expanded the definition of “minor injury” to include brain injury and concussion. We’ve seen that in terms of limiting expert reports, the use of the litigation strategy, the concern around a meat chart schedule that ICBC lawyers have been utilizing. There are concerns as to how ICBC is being directed by this Attorney General for the sake, again, of cost savings.

My main concern with this bill, first and foremost, is that it is another example and illustration of that conflict. It’s a conflict that is continuing to put British Columbians at jeopardy — the 90,000 outstanding lawsuits that injured British Columbians are trying to work through the process on with ICBC.

The rules for which expert reports can be brought on for those purposes are being changed retroactively. When you change the rules when you’re in engagement of the litigation process, who says that you can be the judge and jury? The courts have a role in that. The court spoke very loud and clear to the Attorney General in the Crowder decision. Yet he doesn’t seem to be listening.

He’s brought forward a bill, again taking valuable time in this House, that has been ruled to be unconstitutional — the elements of that bill. So I question the bona fides of this bill and how it’s being tabled in this House. I think it’s something that the Premier and the government ought to be looking at in terms of how it has presented this bill, because there’s a serious issue in respect to the conflict that the Attorney General has as the chief legal officer and the minister responsible for ICBC.

When we look at the Crowder decision, as I mentioned, it was a determination by Chief Justice Hinkson that the rules of court and the judgment of the court, the inherent jurisdiction of the court, were all being impaired by rule 11-8. There have been comments and statements made in the decision. For example, in paragraph 175 of the decision, having a limitation on expert reports does impair the ability of the court in terms of its impartial decision-making ability.

The statement is: “Unless and until the evidence that the parties have chosen to lead has been adduced, the court has no way of determining what further evidence may be needed and no way of obtaining that evidence if it is thought to be required.” There’s a concern relating to any exercise relating to court-appointed expert witnesses or joint experts. That is contemplated under the current rules. It’s referred to under Bill 9 but in the context of having the discretion that’s set out in section 6 of this bill. It would bring forward and break from the non-adversarial role that courts have.

[5:45 p.m.]

These concerns were set out in the Crowder decision. The Crowder decision referred to the importance of the court’s inherent jurisdiction and the concerns relating to this rule 11-8 as compromising and diluting the role of the court and encroaching upon a core area of the court’s jurisdiction to control its process. That is the finding of the court as set out in paragraph 185 of the decision. That is the view of Chief Justice Hinkson on the attempted limitation on the number of expert reports under rule 11-8.

When we look at the proposed changes to the Evidence Act, the changes would limit how many experts and reports would be allowed by a party to prove their case in court. If an injured British Columbian wants to rely on more than those permitted under this amendment, the new rules would require that an injured British Columbian, someone who has been playing by the rules to date, would now need to go before the court and make a plea to the court that, as set out in section 12.1(6) of the bill, they would suffer “prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.”

It goes on to say, under sub (7), that a party must include, in an application to the court to seek leave to allow expert advice of one or more additional experts, “(a) the name of each expert whose evidence the party intends to tender at trial; (b) the scope of expertise of each expert whose evidence the party intends to tender at trial; (c) records that support the need for the additional evidence.”

Apart from what I’ve already said, that the limit on the number of expert reports would be unfair and would result in a further barrier to access the court, an injured British Columbian will now have to ask the court to do precisely what the chief justice in the Crowder decision said would be unconstitutional. That is, it would place the court in a role that it should not be placed in, to “intrude upon what has, to date, been the core function of the court: to decide a case fairly upon the evidence adduced by the parties.” That is what Chief Justice Hinkson had set out in his decision.

What this rule change is asking plaintiffs to do is to seek leave of the court. We know that the role of the court is to ensure that they’ve heard the full case, the full submissions, by each — the plaintiff side and the defendant side. The court is impartial. The court needs to see the full submissions by both sides.

[5:50 p.m.]

This test to have courts determine whether they can add an additional expert will do exactly what the chief justice was concerned about. It forces courts to make a predetermination to bring about conclusions to form their judgment on the nature, the result, of the decision — what’s at play and what’s at dispute — before they’ve seen all of the evidence and all the submissions by each side. This was precisely one of the main concerns that Chief Justice Hinkson had on rule 11-8.

This bill has the same concern. The way that that subsection (6) is setting out a new test…. Certainly, the courts can make a determination, but the language in subsection 12.1(6) forces the court to make an inappropriate determination before the full court case has been heard.

Another concern, as Chief Justice Hinkson noted in the Crowder decision, was that what this whole framework would necessitate, when I mention and refer to subsection 12.1(7), is disclosure. It is attempting to rewrite the rules around experts and put further rules around the court’s jurisdiction as to how it can treat expert evidence.

Litigation privilege serves, in the words of the chief justice, “an overriding ‘public interest’ to ‘ensure the efficacy of the adversarial process.’” It does so “by maintaining a ‘protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate,’ thus promoting ‘access to justice’ and the ‘quality of justice.’” Those are very important principles. That litigation privilege has been an important principle for centuries and is subject to the strictest of confidences in our legal system.

This change — what is contemplated under this amendment to the Evidence Act — would require injured British Columbians to open up privileged and confidential aspects of their legal case, as I’ve stated — the names and details of expert witnesses that they and their counsel intend to rely on in trial. I heard, in the briefing that the member for Richmond-Queensborough and I had the day before yesterday, that when it refers to records — for example, in subsection (7)(c) — those records could include employment history, days missed from work and doctors’ reports.

Certainly, I would think that when we’re getting an expert report from a medical doctor about a particular injury, it would be clear that a plaintiff and their counsel are not wasting the time of the courts. I’m not sure why the records would be that necessary, but it is certainly intruding, in having to force those parties to reveal what is privileged and confidential, in terms of the nature of their claim, as they go through the litigation process.

[5:55 p.m.]

This concern relates to the Attorney General’s seeming view to disregard the doctrine of litigation privilege and how this particular bill will quash centuries of legal protection. We’ll see where that is appropriate in the nature of these claims. Again, that was something that the other members can snicker at. But the fact of the matter is that Chief Justice Hinkson, if you read the decision of Crowder…. I encourage every member of this House to do so. It’s dated October 24, 2019; it’s a public document. The principles of litigation privilege, the jurisdiction of the court, that I’m referring to are clearly spelled out.

The mere fact, the response that I’m getting from the Attorney General, demonstrating his lack of respect for the rule of law…. In this province, the Chief Justice of the Supreme Court of British Columbia has spoken. He’s considered what this government has tried to do to limit expert reports, yet this Attorney General and this government persist in bringing forward legislation to do the very same thing that the chief justice has ruled to be unconstitutional.

That does lead me to my next point, which is this. There was a concern in the lead-up to rule 11-8 about the lack of consultation with the rules committee of the judiciary. The Attorney General stated, in a press release after rule 11-8 was enacted: “The rules committee did not recommend those changes and was not asked to approve those changes. Those changes were a decision made by government.” Well, the rules committee is an expert entity comprising lawyers and judges who, for decades, have advised Attorneys General on substantive changes to the Rules of Court and the law of evidence in this province, in part to ensure that any proposed changes are both prudent and constitutional.

As I said, when making the failed three-expert rule change in 2019, the Attorney General confirmed that the rules committee did not recommend those changes nor was asked to approve those changes. Once again, this Attorney General is proceeding without that consultation.

It’s important, as set out in the reasons on Crowder, of Chief Justice Hinkson. Under section 6 of the Supreme Court Act of this province, it requires the Lieutenant-Governor-in-Council “to make rules only on the recommendation of the Attorney General, made after consultation with the chief justice of the appropriate court,” and “the rules revision committee was established for the purpose of advising the Attorney General with respect to proposed amendments to the rules and to facilitate consultation with the chief justice.”

While the committee and its roles are not formalized in the governing legislation, as is the case in some other jurisdictions — for example, under the Courts of Justice Act in the province of Ontario — the report of the rules revision committee, as set out by Master Horn, stated that by convention, the rules committee is that body and acts as a committee for the Attorney General, whose members are appointed by the Attorney General on the advice of the chief justice.

Successive Attorneys General have reiterated that they will not enact any amendments of the Rules of Court — other than those that concern filing fees, unless recommended by the rules revision committee — and that any representations received by the Attorney General, whether from the bench or from the bar or from any other source, will always be referred to the rules revision committee for advice. This is fundamental in terms of how the rules of court would be dealt with, and this Attorney General continues to proceed without respecting that committee, as he did under the Crowder decision.

[6:00 p.m.]

As we look at the provisions that are brought forward under these regulations, the regulations that are contemplated in the act itself…. The Attorney General, when he announced this particular set of legislation that he was going to bring forward, indicated that there would be a $3,000 limit per expert report and there would be a limit of 5 percent on all disbursements. That is not set out in this bill. As we understand, that will be set out by way of regulation.

I think something as important as that is important to know in this bill, in this debate. As we will look at, at the committee stage, the bill as written is quite convoluted in its drafting. The reason for that includes…. There is provision for exceptions to be made under section 12.1(9)(d), for example. Well, as we understand it, there will be certain exceptions from these limits relating to court access fees, court registry fees. Those are in the nature of perhaps $800 to $1,000, 1 percent of a total claim recovery of $100,000.

We will see what those exemptions look like, but certainly, without the benefit of that, we’re talking about trusting this government, like we were asked to trust this government when it passed the minor injury legislation, when they indicated to stakeholders that brain injury and concussion would not be included. This Attorney General reneged on that commitment.

The government says: “Trust us that we will get those exemptions in place.” We will examine that at committee stage and want to hear from this government what they have in mind. But in the history of the product reform that this Attorney General has put forward to this House, we have seen that it has changed in so many different ways, in ways that have not met what has been said in this House.

As we look at barriers to access to justice, it indicated that litigants would be restricted to recovering disbursements on not more than 5 percent of the judgment or settlement. As we look at this bill, under section 12.1(9)(B), it’s a limitation “on the amount of disbursements payable as a percentage of the total amount recovered in an action.” Well, these disbursements relate to everything, not just expert reports.

We have a bill that has presented, again, a limitation on the number of expert reports, then restricted the cost recovery for each expert report, as we understand, to $3,000 and then put another additional limitation. Well, the ability of a successful party to recover disbursements from the opposing party is a fundamental part of access to justice. Someone that suffers loss at the hands of a negligent party should not have to bear the cost of recovering their losses from the negligent act. That burden should fall on the wrongdoer. That’s the principle that’s embedded in our rules and litigation process in this province.

The importance of this principle is magnified when there is a financial inequality between the parties, as it allows a member of the public to sue wealthy individuals, governments or large corporations without the worry of being outspent by these entities.

[6:05 p.m.]

Justice is blind, and that should include blindness to the financial position of the parties. As I said at the outset of my remarks here, we are limiting the number of expert reports for individual injured British Columbians, when there’s no limit on ICBC. It’s an unlevel playing field. That’s the whole reason why, from an access-to-justice point of view, we want to ensure that plaintiffs can make their case against the wealthier public insurance corporation in this province.

The idea that a successful party can recover every disbursement spent is not the case. It is not every single disbursement and every single amount. The party, under our civil court rules, is only entitled to be reimbursed a reasonable amount for disbursements incurred that were necessary or proper to the conduct of the proceeding. That’s under rule 14-1 sub (5). The onus is on the party presenting the bill of cost to establish the necessity or the propriety of and the reasonableness of the amount of disbursements sought to be reimbursed.

That’s been the subject matter of many decisions of the B.C. Supreme Court, including in Proharra and Royez 2007. The amount sought may be reduced or disallowed for a number of reasons, including the duplication of specialties, multiple opinions on one issue and excessive hourly rate or cost of the expert.

I will say again that in the briefing that my colleague the member for Richmond-Queensborough and I had, that was an example that was cited — that the limitation on the number of expert reports and the desire to consider what might come forward is an avoidance of the possibility that there might be duplication, that a doctor who provides one expert report could have been asked to provide, with a little more work, commentary or an opinion on a related injury. But the fact of the matter is that under our existing rules of court, if there was duplication of that nature, duplication of cost, that wouldn’t be allowed.

There are masters and judges in our court system who have developed years of experience and expertise in this area of looking at bills of cost, analyzing whether they are reasonable, necessary and proper. But that proportionality is to be done and reviewed through the exercise of the registrar’s discretion when assessing costs of cases. This is rule 1-3 sub (2). Again, this aspect of proportionality invites a very rigorous approach to questions of necessity, propriety and reasonableness in light of the importance of proportionality.

There has been a decision which I think is important to keep in mind here as we look at this bill. The amount of the settlement or the judgment should not play any part in the cost assessment process. And the concepts of proportionality as it relates to the amount involved should not be applied retrospectively once judgment is rendered or settlement achieved. This is the decision of the B.C. Supreme Court, Harvey and Tooshley, in 2014. I cite that case only because when we’re talking about a percentage of the total amount received in an action, I would assert that that runs counter to the principle expressed in that decision.

[6:10 p.m.]

Cost assessment should not take into account the total amount that was recovered in the action. Here we have a government and an Attorney General who are setting an arbitrary limit without knowing the circumstances of the case. That’s going to work across the board at the 5 percent level.

The courts have also had a built-in governor to ensure fairness to parties in the recovery of disbursements. That process is where, at the conclusion of a claim, a successful party will present to the unsuccessful party a bill of costs setting out the costs and disbursements associated with the lawsuit. If that unsuccessful party believes that any of the disbursements sought by the successful party are unnecessary, exorbitant, excessive, duplicative or frivolous, the unsuccessful party can have the bill of costs assessed by a master or registrar of the court — rule 14-1.

ICBC does this all the time. This is done. That review is done. That is certainly a use of resource, but that process and the availability of ICBC and their lawyers to question whether there are unnecessary, exorbitant, excessive, duplicative or frivolous expenses that are being claimed if they lose…. They have a process to deal with that. This bill is not needed to address that concern.

The master or the registrar will review the bill of costs in the context of the case and only allow those disbursements that were reasonable, necessary and proper. This process ensures fairness while protecting access to justice. I would again say to this House that by setting an arbitrary amount on the number of expert reports, the costs that can be recovered for expert reports and capping the recovery of the totality of disbursements to 5 percent of the total judgment of settlement, all that this bill is doing is introducing unfairness to what is already a fair process through the court system. Furthermore, it’s limiting the recovery between the parties that will present and ensure financial inequality.

If you cap the amount of damages that parties can recover, it will always benefit the party that is in better financial position. As I look at the discrimination concern around this bill, Bill 9 also results in discrimination for those who earn less money. A significant amount of the value of a claim is derived from wage loss. The value of a claim for a person disabled from a $200,000-per-year job is greater than the value of a claim for a person disabled from a $15,000-per-year job. If the recovery of disbursements is limited to 5 percent of the value of the claim, then the person who earned and lost more income will be able to spend or recover more of the disbursements than a person who earns less.

Just to do the math again, 5 percent of the $200,000, if that was the lost income, is certainly greater than 5 percent of the $15,000 job. Why is it that someone who earns less income will have less ability to bring forward their case? All that claimant can do is $750. Someone who has low income — a student, a domestic engineer, a senior, an elderly person who is on fixed income…. Why is that person discriminated against and able to only spend, with their lawyers, less money than someone who has more income? For a government that’s concerned about all British Columbians, I find that highly prejudicial and discriminatory. This is the bill that this government has brought forward.

[6:15 p.m.]

When we look at general unfairness, the more seriously someone is injured or the more complex their medical issue is, the more their claim is going to cost to prove. The disbursements will make it very difficult to financially justify a trial.

For example, again, if a claim is worth approximately $100,000, then a plaintiff can recover $5,000 in disbursements — 5 percent. That might be after spending $8,000 in disbursements for two $3,000 medical reports, because of that $3,000 limit per report; $1,000 on examination for discovery transcripts; and the remainder in photocopying fees for medical and work records. These are the kinds of expenditures that a plaintiff will want to recover. But now you’re going to be capped.

Those disbursements will certainly triple or quadruple if the case has to go to trial, for the types of other disbursements — expert testifying fees, prep time, photocopying costs and witness fees. By imposing this 5 percent cap on disbursements, this will provide a significant disincentive to the plaintiff to go to trial, which may be, of course, ICBC’s aim here. By restricting and undermining the ability of a plaintiff to go to trial because he or she may not be ever able to recover the full costs of their action, ICBC gets the upper hand.

Yet again, it will be more successful at what it has been doing for the last 12 to 18 months — forcing plaintiffs to accept lowball and unfair offers, unfair settlements. ICBC can continue to spend whatever it wants — on reports, surveillance, private investigative work — with no financial recovery concerns for this multi-billion-dollar insurance company.

I’m interested to hear from the Attorney General whether ICBC will be agreeable to cap their own experts’ reports at $3,000 per report. That would save costs to the taxpayer too. Or whether they will limit their disbursements to 5 percent of the total value of the case — also another way to save costs. Why don’t we just level the playing field here?

Certainly, this bill will have less of an impact on those who have money to be able to recover the costs if they lose. But for those who are students, homemakers and others who don’t have as many funds, these changes will incent and cause people to take lower settlements, because they won’t have the financial resources to risk the additional cost to get the expert reports they need to assess the damages that they’re claiming full recovery for.

They won’t be able to get those reports because (a) they’re limited in the number, (b) they’re capped in terms of the value or the cost of those reports individually, and (c) they’re limited by this overall 5 percent disbursement cap. Financial penalties like this will have a chilling effect on people in litigation with ICBC, especially for working British Columbians of modest means, who don’t have thousands of dollars to spare fighting ICBC in court just to recover what they have lost.

This will allow and enable this multi-billion-dollar ICBC monopoly to bully the average citizen. This is what this bill is about. These rule changes are not in the public interest and only benefit ICBC’s bottom line. And as I’ve been saying throughout my remarks, they’re a clear and drastic barrier to justice.

I also want to comment on the retroactive nature of this bill. As I mentioned, there are over 90,000 outstanding lawsuits. This bill changes the rules on experts and disbursements in a retroactive way for those that have trial dates occurring after October 1, 2020.

[6:20 p.m.]

By imposing a limit on total court expenses in terms of recovery for disbursements to 5 percent of judgment or settlement amounts for all trials after October 1, 2020, this bill will retroactively punish litigants by forcing them to pay, out of their own settlement, costs for court expenses that were lawfully incurred at the time they were obtained to prosecute their cases and in compliance with the rules.

This arbitrary date is highly prejudicial. These proposed changes apply to injured people who may have been dealing with ICBC and their claim for years and years. British Columbians with severe spinal cord or brain injuries who’ve been playing fair and following the rules will now have a new scheme, a change in rules, foisted upon them if their trial date is after October 1, 2020.

We know, particularly in light of the use of the meat chart and the lowball settlement offers that ICBC continues to present, that as they withdraw offers that were made previously and substitute them with lowball offers, that has pushed out the cases. They have not settled. They’re looking for trial dates. These trial dates are being set out 18 months, over a long period of time. That is certainly causing trial dates to be going well after October 1, 2020.

Similarly, if a brain-injured British Columbian has an assessment scheduled with an expert in March or April of this year, despite following the rules for the past several years, they are now subject to a whole new set of rules designed to limit and handcuff them from putting forth their claims fairly in court.

I fail to understand how this Attorney General can explain to British Columbians how it is fair and reasonable to have the rug pulled out from them. People who have been critically injured and whose lives have been uprooted because of an injury and despite following the rules that have been set…. This government now can utilize its authority, misuse that authority, to present a bill to roll out a new set of rules that will undermine the rights of those injured British Columbians.

I’d like to also speak to the lack of clarity. I mentioned this earlier in terms of the regulation-making power under this bill. Because significant details have been left to be determined under the regulations, this bill is vague and unclear in terms of its application. As I said before, when we’re looking at limiting the amount of money that a person can recover per expert report and limiting the amount, or a percentage of the total amount, that can be recovered in disbursements, it is important, as we debate this bill at committee stage, that we have a clear understanding from this government what those limits will be and what any exemptions will be from that.

These changes would prevent the court from reimbursing a critically injured British Columbian the full amount of money it took to prove their case in court unless the total cost is equal to or less than some arbitrary percentage that, as I have said, has absolutely no relationship to the injured person’s age, disabilities, medical needs, ability to work, family circumstances or other factors that are certainly unique to each individual person and claim.

I would just comment again on another section, subsection 12.1(10). That says that the proposed changes under this bill…. Where there is any inconsistency between the Court Rules Act and any regulations, they will be resolved in favour of those regulations pursuant to this act. Because the Attorney General has not spelled out clearly what those regulations are going to say and because those regulations will not come back in front of this House, we need to know. We will need to have that level of clarity as to what this government will be doing with those regulations, because in the absence of those details, I don’t see how any member of this House can consider fully the full implications of this bill.

[6:25 p.m.]

I will also make one comment, which I will pursue at committee stage, which is at the back of this bill, under section 3 of the bill. We have a bill that has presented amendments to the Evidence Act and then goes further to amend those amendments. In doing so, it amends those amendments that it’s proposing under this bill to utilize broader terminology to go from references to vehicle injury actions to personal injury actions.

I think we’ll need a very clear understanding as to why, under the nature of this bill, that change is being made. What expectation does this government and this Attorney General have to draw in other forms of personal injury, other forms that will be liable and subject to the unfair restrictions under this bill?

As I said, I have grave concerns about the ongoing conflict of interest that this Attorney General has. As demonstrated throughout my remarks, this bill seriously undermines the rights of injured British Columbians. It is unfair and discriminatory. It continues to put forward legislation on points that were considered by the Chief Justice of our province in the B.C. Supreme Court.

The only reason why this minister responsible for ICBC doesn’t see his conflict is because he’s in conflict. He’s in conflict trying to fix ICBC in the way that he’s presented it. He’s built up the challenges and now, through his product reform initiatives, he’s trying to address them.

This goes beyond another failure. It is a failing for this Attorney General to meet his own responsibilities as the Attorney General for this province. As I’ve said time and again, he needs to meet those responsibilities. He needs to respect the rule of law. He needs to respect the decision of the Supreme Court of British Columbia. He needs to continue to ensure that the rights of injured British Columbians are protected.

With that, I look forward to debating the issues that I’ve identified through my remarks in the committee stage of this bill.

J. Johal: I rise today to speak on Bill 9 on second reading, the proposed amendments to the Evidence Act. Under this bill are a continuation of the government’s efforts to limit the number of expert witnesses in a personal injury lawsuit.

The Attorney General’s previous attempt to make this change through regulation, rule 11-8, was found to be unconstitutional in October of last year. I want to remind this House of what Justice Hinkson stated, because I believe many of those concerns still remain when it comes to Bill 9.

Mr. Justice Hinkson provided the following reasons for finding these changes out of line. Under section 172, he stated: “The impugned rule places the court in a role that it should not be placed in. Transferring the responsibility of ensuring that there is relevant evidence upon which to decide the issues in a personal injury case from the parties to the court does, in my view, intrude upon what has, to date, been the core function of the court: to decide a case fairly upon the evidence adduced by the parties.”

In section 185, he states: “Considering the totality of the submissions and the evidence before me, I find that the impugned rule compromises and dilutes the role of the court and encroaches upon a core area of the court’s jurisdiction to control its process.” What we see today under Bill 9 is no different.

I have significant concerns about this bill and its harmful impacts on the rights of injured British Columbians. This bill steps on the rights of British Columbians. It limits their access to justice.

[S. Gibson in the chair.]

These cost-saving measures, even with the ability for exceptions, make it more difficult for people who have been injured in a crash to get full compensation for their injuries. It also puts up greater barriers to justice, and that simply is not in the best interest of the people of this province.

[6:30 p.m.]

Additionally, the idea of the balancing test for granting exceptions, which takes into account complexity and cost, forces judges to weigh the interests of ICBC when making decisions about allowing more experts.

This reality seems contrary to justice. Judges should not have to think about the potential financial impacts on a government monopoly when deciding whether or not to allow additional experts to weigh in on a case. Experts are important in complex cases. Expert witnesses provide important information surrounding the severity of injuries, the cause of an accident and your future treatment costs. The testimony and consulting services they provide can be invaluable in a personal injury case.

For example, surgeons and medical professionals provide detailed insight into the nature of an injury and the future required treatment. Mental and behavioural health experts are able to testify as to the extent an injury has on emotional and psychological health. An accident reconstructionist provides insight into the cause of an accident and potential negligence. A life care planner can particularize and quantify your future care needs, among other things. To now limit experts is simply not fair.

Secondly, this bill is another misguided attempt to get into legislation rules that were already deemed unconstitutional when the Attorney General tried to bring it in through regulation last year. Many of these same challenges and concerns with rule 11-8 apply to this bill. The court found that the rule 11-8 changes require the court to play an investigatory role in place of its traditional non-adversarial role, which is the same concern with the proposed amendment under this bill.

Thirdly, so many of the details of this bill, including provisions that will be brought in through regulations are completely arbitrary. How did the Attorney General decide that three was the correct number of experts to allow? How was this fair when dealing with incredibly complex cases? Why the $3,000 limit per expert report? What was the process the ministry went through to come up with this number? Why 5 percent for all disbursements?

Another important aspect to consider is the retroactive nature of this legislation. There are around 90,000 outstanding lawsuits, and this bill changes the rules on experts and disbursements in a retroactive way for those that have trial dates occurring after October 1, 2020.

ICBC has a significant trust issue with the people of British Columbia. It’s something even, I think, the Attorney General has acknowledged. How does retroactively inflicting these proposed changes onto British Columbians help ICBC build that trust?

Finally, there is a distinct lack of clarity in many aspects of this bill. So many of the details are set to be decided through regulation. Not only does that leave so much undecided when and if this bill is approved by the House, but it also means that it will be much easier to alter the details going forward. So in many ways, the finer points of this legislation are left up to the whims of the Attorney General. Based on ministry’s recent track record in court on this issue, one could argue that the trust question doesn’t just apply to ICBC but the Ministry of the Attorney General as well.

In the end, this is a piece of legislation that will infringe on the rights of injured British Columbians, plain and simple. It will leave the injured without compensation that they should be entitled to claim.

There is also, finally, an inherent conflict of interest in the Attorney General bringing this bill forward. In his role of the Minister of Justice, he is supposed to be looking out for the rights of British Columbians, making sure that they have access to justice, yet he has brought forward a bill that places the financial interests of ICBC above all else.

When you read through this bill, you realize the rights of injured British Columbians is secondary from propping up a four-decade-old, state-run monopoly, which is probably the main priority we see of this government. British Columbians deserve an insurance provider they can trust.

I look forward to exploring some of these issues further and in greater detail in the committee stage for this bill.

Deputy Speaker: If there are no further questions, I’ll call on the Attorney General.

Hon. D. Eby: Thank you to the members for their comments — well, at least for some of them. It is interesting that it’s two new members in this place that are speaking to this bill and raising these questions about the role of the Attorney General and how could the Attorney General possibly be involved with ICBC.

[6:35 p.m.]

Obviously, nobody told them about what happened in 2016. They would not be standing here lecturing this side of the House about the sacred nature of the rules committee and “how dare the Attorney General be concerned about costs related to litigation” if they knew their history.

It was 2016, just three years ago. It was a spring afternoon in a beige boardroom, somewhere in the B.C. Supreme Court building, where the rules committee met. I use the past tense. There were several B.C. Supreme Court justices and several senior lawyers gathered around the table. The rules committee discussed the rules of court.

On this afternoon, it wasn’t the usual non-controversial rules committee meeting. The Vancouver Sun summarized the minutes of the meeting as follows: “On March 31, all of the justices and several senior lawyers quit the long-standing blue-ribbon committee.” Now, this is the same committee that the members on the other side have just accused me of disrespecting. They quit en masse in 2016 when the B.C. Liberals were in power.

Why did they quit? Surely it was for some kind of reason totally unrelated to ICBC, because if you listen to the members on the other side, they would never deign to discuss the costs of litigation in relation to ICBC. But they quit as a direct result of the actions of the previous government related to ICBC.

The former Attorney General, Suzanne Anton, had, after approving changes recommended by the rules committee, and after passing an order-in-council to implement the changes in July of that year, suddenly changed her mind. She told the Sun that she had reversed herself because she approved the changes “without realizing they would cost ICBC more than $250 million.” Hmm. That’s interesting. She approved the changes recommended by the rules committee without realizing they would cost ICBC more than $250 million. So what did she do? Obviously, she reversed her decision, withdrew the OIC, and reversed and ignored the recommendation of the rules committee. What happened? The rules committee resigned en masse.

After they quit in a group, she then took six months to figure out what to do. In December 2016, she set up the Attorney General’s committee without the chief justice or any superior court justice so that she could pass court rule changes without the judges around the table. But she told the justices they didn’t need to worry. She said there would be “a formal requirement for the Attorney General’s committee to provide 45 days’ notice to the chief justice of any rules changes it intends to recommend.”

Now, on this topic, and every time the opposition gets up to speak about ICBC, it’s the same. The level of hypocrisy is profound. It’s as if they fell from space and wandered into this building with no sense of history, even just history as recent as three years ago. Now we’re doing better. The rules committee exists. We engage with the rules committee, and the members are right. Our first shot at this with the expert witnesses was ruled unconstitutional by the court. The members are absolutely right about that.

Now, that happens, and the members will be shocked to hear this as well. It happened when they were in government as well. Sometimes, when you are passing statutes that you believe are constitutional, the court will find them unconstitutional. I will assume that the three times that they failed to get their political speech gag law passed — it was found unconstitutional three times in a row — they, in good faith, believed it was a constitutional law, right? This does happen.

When the court issues a ruling, which the court did in this matter, sometimes the court provides a road map to government about how to ensure that the next effort is constitutional. That road map was set out for us by the chief justice. He said that there were some really serious concerns about the bill as passed. One was that the court didn’t have discretion. So in this bill — you didn’t hear the member say it — the court now has discretion. They say: “How dare government deign to limit the number of witnesses?” Every jurisdiction in Canada, except British Columbia, including at the federal level, limits the number of witnesses — every single one, except British Columbia.

[6:40 p.m.]

The chief justice said that we need to have an ability, in case justice demands it, to be able to add extra witnesses. So that is in this bill.

There are other comments the chief justice made about ensuring that the court has discretion. In relation to costs, the court always has special costs available to award against anybody where the court believes that that party’s conduct is inappropriate. So the idea that someone would incur costs because ICBC was being unreasonable, and then the court would just ignore that and wouldn’t award special costs, is strange.

I sincerely thank the members for some of their comments, because the members did raise an important point, which is fairness in relation to ICBC and the plaintiff who is bringing the case forward. Will ICBC be held to the same rules?

Now, as a matter of practice, ICBC brings forward a fraction of the expert witnesses that plaintiff counsel brings forward. However, I will take that back. This is what second reading is all about. I’ll take that back because although ICBC is subject to the same limit on the number of witnesses — the same number of expert witnesses, in theory — the reality is that on the disbursement side, ICBC isn’t…. ICBC always pays for all the witnesses, all the expert witnesses. They always pay for all of them, so they don’t recover that. On the recovery side, ICBC isn’t affected by a limit of $3,000 recovery in the same way that a plaintiff would be. It’s certainly arguable.

I’ll take that back. I think that’s a serious fairness concern, and I’m willing to have a look at that and bring information back to the members in committee stage.

The idea that…. The member for Vancouver-Langara stands up and says…. “Limiting expert reports is unconstitutional,” he said. Really? Demonstrably false. Limits across Canada on experts. Demonstrably false. He suggested that there is a meat chart at ICBC. A meat chart, for those of you who aren’t familiar, means that if you have injury X, you get amount Y, no matter what. Totally false. Now, I’ve said it in the media. I have confirmed it in writing with ICBC. Every person’s individual circumstances when they’re injured in an accident are taken into consideration as a whole. There is no meat chart.

Where does the meat chart idea come from? It comes from the Trial Lawyers Association, like many of the member from Langara’s talking points. Unfortunately, it’s not true, but it keeps getting repeated in the hopes that maybe someone will believe it. But it’s not true.

The second piece is that ICBC is only offering low-ball offers. The members on the other side must not remember the gown-up strategy that was implemented by their government, where literally every claim with ICBC went to court. The strategy was to litigate everything in order to reduce costs at ICBC. ICBC ended up with huge amounts of capital in the bank because they weren’t paying claims.

[Mr. Speaker in the chair.]

Instead of keeping that money in the bank, the previous government actually took that money out of ICBC. So when the claims actually started to show up, ICBC started facing a financial crisis. It was all laid out in a very helpful chronology in the Vancouver Sun yesterday.

With respect to the members on the other side, who just discovered the idea of access to justice…. To hear B.C. Liberals talk about access to justice — what about the people in one-car collisions?

Interjections.

Hon. D. Eby: Oh, I’m sorry. I thought I sat here for an hour.

Interjections.

Mr. Speaker: Members. Order, please. Members.

Attorney General.

Hon. D. Eby: I’m happy to hear what the members opposite have to say about me. It would be nice if they sat briefly to hear what I have to say about their discovery of the idea of access to justice, because the party they’re sitting with deprived British Columbians of legal aid to the extent that their Attorney General, Geoff Plant, was actually censured by the Law Society.

Their Attorney General is censured by the Law Society, their Attorney General sees the whole rules committee quit, and they have the gall to stand up and say that they have lost confidence in this Attorney General? Well, I’ll take my advice from somewhere else. I look forward to committee stage, hon. Speaker.

With that, I move second reading. All fired up.

[6:45 p.m. - 6:50 p.m.]

Mr. Speaker: The question is second reading of Bill 9.

Second reading of Bill 9 approved on the following division:

Hon. D. Eby: I move the bill be referred to a Committee of the Whole House to be considered at the next sitting of the House after today.

Bill 9, Evidence Amendment Act, 2020, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

Committee of Supply (Section A), having reported progress, was granted leave to sit again.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

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

The House adjourned at 6:54 p.m.