Orders of the Day

Hon. M. Farnworth: In this chamber, I call Committee on Bill 9, Attorney General Statutes Amendment Act.

[1:35 p.m.]

In Section A, Committee of Supply, I call continued debate on the estimates of the Ministry of Mental Health and Addictions. Following their conclusion, we will go to the Ministry of Agriculture, Food and Fisheries estimates.

Committee of the Whole House

BILL 9 — ATTORNEY GENERAL STATUTES
AMENDMENT ACT, 2022

(continued)

The House in Committee of the Whole (Section B) on Bill 9; J. Tegart in the chair.

The committee met at 1:37 p.m.

On clause 2 (continued).

Hon. D. Eby: I’m joined here by Darin Thompson, legal counsel, Ministry of Attorney General and Housing.

M. de Jong: When we left off, the Attorney was making the point that the limitation period that will ultimately be prescribed here relates to a new provision that is created later in this bill, an amendment to subsection 133(1) of the existing act, the Civil Resolution Tribunal Act.

Further, I think he wanted to emphasize that the circumstances in which the finding of responsibility for an accident is relevant — it’s certainly relevant to this section — is limited. He did that almost in the reverse by saying it’s not relevant in the case of transitional cases that still rely upon tort law.

He made the point, I believe, that it’s not necessarily relevant, under the newer regime — where benefits might be reduced based on responsibility — but that this finding of responsibility that’s contemplated has relevance in circumstances where there are no damages that have been suffered but where future premiums and, possibly, future employment could be impacted. The example he used was a commercial truck driver.

[1:40 p.m.]

All helpful, of course. I’m going to ask a question that draws, I guess, necessarily on a section that we come to later in this bill, section 14, which creates the new subsection to sub 133(1)(d), which speaks to “the determination by the Insurance Corporation…or a prescribed insurer of the extent to which the initiating party is responsible for the accident.”

We have the Attorney’s explanation for the limited circumstances in which that determination of responsibility is relevant. My question is: where do we look? It doesn’t appear to be in section 14. Where do we look for the statutory confirmation of what the Attorney has said about the limited application of this finding of responsibility?

Hon. D. Eby: The relevant clause is clause 14 of this bill, which would, if passed, adds a new subsection (d) to the existing subsection 133(1). Sub 133(1) talks about claims within the jurisdiction of the civil resolution tribunal for accident claims, and (a) and (c) talk about determination of fault and the relation of fault to benefits paid or payable, or liability and damages.

There is this third category where there are no benefits paid or payable and there is no liability or damages, but there are future impacts that don’t fit into those categories, namely impacts on premiums and impacts on, potentially, future employment, which is why subsection (d) is necessitated and why clause 14 would add that new jurisdiction to the civil resolution tribunal.

M. de Jong: Can the…? What might be helpful is for the Attorney to offer the committee a practical example of the circumstances in which this would be relevant. When I had the briefing with the officials, they kindly alerted me to circumstances in which there were no damages and — I’m relying now on my notes from the briefing — circumstances where the tribunal had to dismiss a claim for lack of jurisdiction on questions related to this.

Maybe the easiest way to get to the heart of this is for the Attorney, with the assistance of his officials, to just lay out an example of the problem that arose and how this will fix that problem.

[1:45 p.m.]

Hon. D. Eby: The issue is that somebody who receives one of these notices that they’re at fault in a collision goes to the CRT, because that’s an avenue to go to resolve these disputes with ICBC. They try to file their claim and say: “I want this determination to be reversed, because I wasn’t at fault.” The CRT says: “Okay, what liability is occasioned by your being found at fault?” That’s subsection 133(a).

Pardon me. Subsection (a). “What benefits are you being denied because you were found to be at fault?” They say: “No benefits. It’s just that down the road, I might face increased premiums, or down the road, I might have difficulty getting employment.” “Okay. What liability are you facing? What additional expenses and damages are you going to have to pay out because you were found at fault?” “Well, none. There are none here. I was found at fault, and I’m worried about these future consequences.”

When the CRT goes through their relevant jurisdiction, within section 133(1)(a) and (c), this person doesn’t qualify for either of those areas of responsibility, so they have to say: “I’m sorry. We don’t have the jurisdiction to issue what you’re asking for, which is a bare declaration that you were not at fault, in the absence of any liability or damages.” If they get through to a hearing, the tribunal finds that there is no jurisdiction, or they may not even get through to a hearing at all.

The remedy here is to create a new subsection, subsection (d), to say that in fact, even in these situations where there are no damages, no liability, no disentitlement to benefits or purported entitlement to benefits…. Even in the absence of those things, the CRT can still make a determination related to fault or not being at fault in a collision, and to clarify that for the CRT.

M. de Jong: Right. That is helpful. So the position the tribunal seems to have taken on the strength of its interpretation of the existing legislation is that it didn’t have the jurisdiction to make that finding, notwithstanding, I guess, the virtual certainty that a finding of responsibility ultimately impacts the premiums, at a minimum, that people would pay down the road. The government and the Attorney have brought legislation before the House in this committee.

Was that a frequent phenomenon? It wouldn’t be hard to convince me that it was insofar as the ramifications of losing a safe driver’s discount can be fairly significant. So was it a frequent phenomenon? And does the Attorney have any information he can share with the committee indicating what volume of additional work this is likely to create for the tribunal?

[1:50 p.m.]

Hon. D. Eby: The civil resolution tribunal has done two samples of cases. They don’t track their statistics to this level of nuance about the reasons why a matter might be dismissed or so on. Instead, they’ve pulled sample cases to try to determine the frequency.

In the first sample, there were 180 decisions pulled in June of 2020 to examine and try to identify fault-only disputes which had gone to adjudication. They found the following examples.

Two cases where the civil resolution tribunal found in favour of the applicant — in other words, reversing the ICBC fault decision — but ultimately dismissed the claim for lack of proven damages. They said: “You’re right, but we can’t make that determination because of jurisdiction.” Then 19 cases where the applicant was not successful on liability. In other words, they upheld the ICBC fault decision. But in any event, the CRT still noted that, even had they been successful, the CRT couldn’t have gone ahead and granted the relief that was sought.

In the second set, there were 20 cases pulled in October 2021. They found five cases where the CRT found in favour of the applicant for liability but dismissed the claim because there were no proven damages, two where the CRT refused to resolve the dispute on the basis of lack of jurisdiction and other cases where the applicant was not successful on liability but the CRT still noted it would have had to dismiss in any event.

The CRT advises that this is likely a growing potential issue, given the fact that people are increasingly aware of the role of the CRT and their ability to resolve claims related to ICBC. Staff advised that in the interim, people have been going to Provincial Court to resolve these matters. The advice we have received from the CRT is that there may be a one-time capital cost to update the so-called Solutions Explorer software that people go through at the beginning to find their way through the process, but they should be able to handle this with existing staff.

M. de Jong: The Attorney will indulge me as I try to walk through, then, how this is intended to look when the amendment has passed and the new system is in place.

I’m driving along the freeway in the morning. Traffic backs up, I’m not paying attention, and I rear-end the vehicle in front of me. Hard to imagine damage now that doesn’t cost $3,000 or $4,000 at a minimum, unless it’s my car, which is 35 years old. I’ve caused damage to another vehicle, and somewhere along the line, my insurer ICBC sends me a letter and says: “We have determined you to be responsible for this accident.”

[1:55 p.m.]

I want to challenge that because I want to allege some other contributing factor. I’m not going to get hung up on this, because I understand why the rationale for the change. But why doesn’t sub 133(1)(c), as it presently exists, bestow jurisdiction in a case where, as the section says that, in respect of an accident — and, in that case, in sub (c) — loss or damage is less than or equal to the tribunal amount?

On the reading of it, it would seem to me that if there is an accident and there is damage that falls within the jurisdiction of the tribunal, it would have the authority to render a decision.

Hon. D. Eby: I’m advised that 133(1)(c)’s term “accident” is, in fact, a defined term which limits the types of accidents for which jurisdiction is granted to accidents that include some form of bodily injury. Outside of that definition, then…. If there is not bodily injury, then there’s not jurisdiction.

Beyond that, the structure of (c) is really intended for the previous tort-related claims. It’s what it was designed for. It was not intended for the no-fault or enhanced benefit system that we have now. So for a couple of reasons, it’s an awkward fit and has resulted in this jurisdictional gap.

M. de Jong: All right. Candidly, I’m not sure I entirely understood the answer. That undoubtedly is my problem, not the Attorney’s.

The new sub (d) incorporates the term “accident” and would seem to draw on the same definition. I take it that it’s the Attorney’s view that the wording prior to the word “accident” in the newly proposed sub (d) is sufficient to cure that problem, but it is the same term and presumably subject to the same definition.

Hon. D. Eby: It was one of those moments in a chess game where you think that you’re checkmated, but then suddenly you see a way through. The member points out….

[2:00 p.m.]

Obviously, the word “accident” appears in both, so if “accident” limited jurisdiction in (c), surely it would in (d) as well. Staff have kindly pointed out to me…. In section 12 of the bill, the definition of “accident” for sub-subsection 133(1)(d) of the act has its own definition, which is different than the word “accident” in subsection (c).

Clause 12 of this act anticipated the member’s question and responds to it by saying as follows, “in respect of a determination of responsibility referred to in section 133 (1) (d) of this Act, has the same meaning as in section 1.1 of the Insurance (Vehicle) Act,” which, itself, does not refer to bodily injury.

M. de Jong: To the Attorney, I fear I would pursue further questioning at my peril. Maybe I’ll just ask the Attorney to…. And I don’t say that in jest. I get the connection and the tortuous ways, sometimes, that legislation has to deal with these matters.

Let’s go back to the example that I gave, which may be the best way to clarify what is being created here. I rear-end someone. There is damage that falls to the other vehicle. No personal injury damages. I get my letter from my insurer, ICBC, who says: “We have found you to be responsible for this accident.” I take issue with that.

I now have, when this is done, the ability within what will be a prescribed period of time, which the Attorney has indicated will likely be something in the neighbourhood of 60 days, to signal my dispute of that finding of responsibility and to bring that matter before the civil resolution tribunal to be adjudicated.

Is that the scenario that’s being created here?

Hon. D. Eby: Yes, all of these technical definitions and so on will be invisible to the user. They’ll just receive notice that they were found responsible.

Likely, ICBC will say: “If you want to challenge this, this is the avenue.” When they go to the civil resolution tribunal, they’ll go through the Solutions Explorer process that will advise them about how to complete the forms in which category they’re making a claim under. It will be updated to include this, so they won’t have to know what the definition of “accident” is in subsection (d) or anything like that. But as the member described, that is how the process would go.

M. de Jong: Just to close the loop on this. In circumstances where the damage caused exceeds the jurisdictional authority of the tribunal, I still get a letter that says ICBC is assigning responsibility to me for the accident. What do I, as the insured, do in those circumstances? What are the options available to me in those circumstances for disputing the finding of responsibility by my insurer?

Hon. D. Eby: There is not actually a monetary limit of a claim that could be heard by the tribunal in relation to fault or not fault. That determination itself, fault or not fault, doesn’t have a monetary limit assigned to it. The CRT can hear any fault or no-fault dispute, regardless of the value of the damages or benefits that may be associated with it. The caps would come in, in relation to those benefits and damages if there were a dispute about that, not the fault or no-fault piece.

[2:05 p.m.]

M. de Jong: Sorry, I’m not meaning to be meddlesome or mischievous. When the Attorney General used the term “fault,” was he using that in place of the term “responsible”?

Hon. D. Eby: Yes. I should be more precise in my terminology. Responsibility for the collision.

M. de Jong: Does it follow, then, in the case of, let’s call it, a more significant accident, where the damage amounts are greater…? By virtue of these amendments, does the tribunal then become the starting point in virtually any case where an insured person has received notice from their insurer, from ICBC, that they are being held responsible or having responsibility assigned to them? Is the effect of this that in virtually every case, that becomes the starting point for disputing that determination by the insurer?

Hon. D. Eby: We just had to work it through. In all but the most exceptional cases, they will be starting through the CRT. I just want to confirm for the member that the amendments today relate only to those matters where there are no damages or liability except for those future consequences we talked about that haven’t yet been realized but are reasonably anticipated. Other than that, the system remains the same. So, as I say, for all but the most exceptional, they would be going through the CRT front door.

M. de Jong: Okay. Well, that’s a helpful reminder in terms of the distinction between the more serious-type accident and what the amendment is intended to address.

All right. We’ll head on to the next section, then.

Clause 2 approved.

On clause 3.

[2:10 p.m.]

M. de Jong: We discussed this a little bit, that the nature of the bill is…. A lot of this is so interrelated that we’re having to draw from various sections.

Amendments to existing 16.4, the elimination of division 5 and the repeal of subsection (c.1). Maybe I’ll just ask the minister to confirm this: that the amendments included in clause 3 of this bill, combined with the amendments included in clause 6 of this bill, are what will eliminate the ability of a person disputing a finding by the tribunal to have that matter retried at the provincial small claims court, the impact of that and the effect of that being that the person disputing that will then be obliged to refer the matter for judicial review to the B.C. Supreme Court.

These are the two sections, clause 3 and clause 6 combined, that seem to make that change.

Hon. D. Eby: These are two of the sections, but there are more to come yet in the bill.

M. de Jong: All right. Well, we had a conversation…. The Attorney has explained to the committee his rationale for why he believes that’s an appropriate change to make. I’ve responded and made some submissions to the committee about why I think it may not be an appropriate change. I don’t intend to repeat those submissions, and I don’t think I’ve changed the Attorney’s mind, so it might be appropriate to simply record that difference of opinion about the nature of the change being made both in this clause and clause 6.

Hon. D. Eby: I regret I wasn’t able to persuade the member, but yes, if he wishes to indicate the difference in our opinions, this clause and clause 6 would be the key provisions.

Clause 3 approved on division.

On clause 4.

M. de Jong: Just with respect to the amendment, the repeal of sub 48(5) of the existing legislation. Am I correct that that, too, is required with respect to the impediment, the filing of a notice of an objection had on the actual enforcement of a tribunal finding? Is that the rationale behind the amendment in clause 4?

[2:15 p.m.]

Hon. D. Eby: If you maybe imagine the scenario where I’ve knocked down the member’s fence. He’s sued me in the CRT process. He’s received a judgment from the CRT that, in fact, I was negligent, and I owe him the money to fix the fence. Under this old provision, he would have been waiting 28 days to see whether I went down to B.C. Provincial Court to file a notice of objection.

We are in the process of, I hope, getting rid of that process, so we don’t need this section here. The tribunal will be able to give an order that has immediate effect, if they wish, in relation to a claim like that because of the removal of subsection 5 and the notice of objection process.

Clauses 4 and 5 approved.

Clause 6 approved on division.

Clauses 7 and 8 approved.

On clause 9.

M. de Jong: Just give me a second, please. So these are amendments to the existing section 93 and, particularly, the regulation-making power included in the legislation.

There are existing reg-making powers that, as we might expect, are fairly broad. I wanted to just ask for the Attorney’s rationale and explanation for, in general terms, why the specific regulation-making powers were required for these limitation periods. There are other limitation periods associated with the operation of the tribunal in the act. What is it about these limitation periods that he and the drafters felt required them to be enunciated specifically in the legislation?

[2:20 p.m.]

Hon. D. Eby: Section 93(2)(b.1) is really the mirror of section 13.5 that we covered earlier that a limitation period may be prescribed. So it’s a drafting preference to have a matching reg-making power that clearly corresponds. The member will see there are two parts to it to set a limitation period, which we talked about, that will likely be in the neighbourhood of 60 days.

Then there is a second piece, which is the event that causes the limitation period to start running. Because ICBC’s processes may change over time in terms of how they provide notice and a desire to ensure that there is not some new process that has to be established to give notice separately to instead fit it into the existing process so that it runs smoothly for the insured, this regulation-making power is set out so that the event can be consistent with the method by which the person would have received notice under the existing system.

Section 93(2)(e.1) talks about the matters to be proven and the onus of proof. The reason for this is that this could easily evolve into a sort of trial-type structure, a civil trial, where the determination is essentially a negligence standard or something like that, when, in fact, the matters have been dealt with through the courts on more like a contractual dispute with the insurer kind of basis.

What the B.C. Court of Appeal has set out as the test is whether the insurer acted properly or reasonably in assigning responsibility, and there is some other judicial commentary on it. We want to make sure that the CRT knows that that is the intent here, that this is the framing of the dispute rather than establishing a new negligence-based tort process in the CRT.

Then finally, subsection 93(2)(e.2). This is around identifying additional insurers against whom an initiating party may bring a dispute. It relates to the potential of needing to provide some clarification around optional insurers or potentially even out-of-province insurers, just depending on how this evolves as we move forward.

They are very distinct, and potentially covered in some other regulation-making powers, but from a drafting perspective, we wanted to have absolute clarity for these areas so that we had the flexibility to be able to ensure the CRT was adjudicating these matters consistent with existing case law and also incorporate it into existing processes so that there isn’t duplication or extra steps for an insured.

[2:25 p.m.]

M. de Jong: To the Attorney General, helpful. I would say of the three — we’re on clause 9 — subclauses, (b.1), (e.1), (e.2), that (b.1) and (e.2) are pretty clear and deal with specific matters. The Attorney took a specific amount of time to refer to (e.1). Again, I don’t know that he would agree, and I’m certain he’s not going to want to tamper with the drafting, but it strikes me as very, very broad.

The Attorney has sort of indicated why that may be so, but the subsections above it and below it both deal with something specific, the need for regulations around timelines and, as he mentioned, a triggering event for a limitation period, and then, in (e.2), prescribing specific entities. But the part that I’d highlighted in (e.1) is that phrase “including respecting any matters required to be proven and the onus of proof with respect to any matters required to be proven” — and, I guess, the phrase “respecting claims referred to in section 133 (1) (a).”

It almost looks like this is going to be the rules of court power. Has something arisen that has created, in the Attorney’s mind and the government’s mind, the need to create that kind of authority? How does he contemplate that being used? Are there going to be something akin to the tribunal’s rules that will arise out of this? I think there are procedural rules now, but it’s a very broad power, and that’s the best analogy I can come up. It looks like a rules-of-court type of power that is being created here.

I’d be interested to know the rationale for the need and for proceeding on that basis.

Hon. D. Eby: Staff have kindly shared with me an example of what the regulation might look like, which may address the member’s question.

It’s not intended to be a regulation that creates a whole series of procedural rules, like the rules of court. Instead, it’s meant to clarify the test, from an array of tests that could potentially be used by the tribunal in assigning responsibility, to avoid unintended consequences. One of which is to my concern, proportionality.

That this is a dispute which while significant for the insured — potentially, a couple hundred dollars, even a month in addition to their insurance, because they were at fault in a collision…. That’s a big deal for a driver, but the court process that matches that or the determination process that finds whether or not the person is responsible should be proportionate to that $2,400 claim.

To ensure that proportionality, the goal here is to set out what the test should be so that there aren’t extensive arguments about what is even the test, what is the burden of proof, and so on.

[2:30 p.m.]

A draft regulation might look something like this, with two subsections.

Subsection (1): In a claim referred to in subsection 133(1)(d), the onus is on the initiating party to prove that the insurer did not act properly or responsibly in administratively assigning responsibility to the initiating party.

Subsection (2): If the initiating party is successful in proving the matter described in subsection (1), then the onus is on the initiating party to prove that the assignment of responsibility by the insurer should have been different.

That is an articulation of the test used in the Court of Appeal.

M. de Jong: It sounds like the thinking around what the regulation might look like pursuant to (e.1) has developed somewhat. Does the Attorney foresee that regulation being posted relatively shortly after the legislation is passed and proclaimed?

Hon. D. Eby: What I read to the member is more of a policy kind of draft of what the regulation might look like. That would need to go through legislative drafting processes and then through the cabinet process before finalization. So there are a number of factors that could lead to changes in the timing.

I can say this, though. There is an interest on the part of government to get this in place as soon as we can, and the CRT will have to adjust their systems to be able to accept these claims. The reason why we would like it to happen as quickly as we can is that these claims are out there now. People have these concerns now. They would like to bring this forward to the CRT, if they can, and we want them to be able to do that as quickly as possible.

M. de Jong: In the example the Attorney gave…. Can he just help me with this? In that example, what part of it represents “a matter required to be proven”?

Hon. D. Eby: Essentially, what is required to be proved is whether the insurer did not act properly or reasonably in administratively assigning responsibility to the initiating party. That is the matter to be proved, which is essentially the legal test.

Staff acknowledge that that that was part of the drafting engagement about how best to articulate that this regulation would set out that legal test that has to be proved, and that is the matter intended to be communicated here.

M. de Jong: I think the last kick at this. Any concern on the part of the Attorney…? As a learned counsel, all of these things make sense. But any concern that in an exercise which, by definition, is going to involve an unrepresented layperson, and in the case of the insured, most likely someone with legal training, that the development of these sets of rules that lawyers, admittedly, quite like, and I suppose parliamentarians might quite like…?

The more traditional and, perhaps, less complicated notions of reasonableness will give way to these far more specific tests, which — I grant the Attorney — lawyers like. But any concern at all that as we layer on some of these additional requirements, the position of the unrepresented participant, vis-à-vis the lawyer who will undoubtedly be arriving on behalf of the insurance company, is going to make this a fairly difficult and intimidating process?

[2:35 p.m.]

Hon. D. Eby: In the vast majority of situations, as I understand it, it would be an ICBC adjuster. But I take the member’s point that the adjuster would be familiar with the relevant provisions, maybe has done a dozen of these in a month, and the lay litigant has not ever done this before. So there is an imbalance that comes from that.

That is attempted to be rectified through the civil resolution tribunal structure, everything from the process that the person goes through to articulate their claim, the negotiation process that’s built into it and then the more civil law–type structure of a decision-maker that’s actively involved in drawing out evidence and information from the parties.

The whole structure of the civil resolution tribunal is to level that playing field. That’s why we think that this is a good fit for the CRT, for them to adjudicate these claims, versus some other court process, and it’s certainly easier for a self-represented litigant than the B.C. Supreme Court would be, for example.

The bottom line here is that this is being situated in the context of a tribunal that is designed for self-represented litigants, to minimize those power imbalances as much as possible and get to a fair outcome.

Clause 9 approved.

On clause 10.

M. de Jong: Can 93(2)(c)…? It can be repealed. Is that because the jurisdiction of the provincial small claims court has been removed? Is that sort of the rationale there?

Hon. D. Eby: This was a regulation-making power that cabinet could have used — didn’t use but could have used — to say that if you’re going to file a motion of objection, you have to pay a certain proportion of the judgment against you as a deposit into court.

Because the notice of objection will no longer exist if this statute passes in its entirety in this House, then there’s no need for this regulation-making power to prescribe how much deposit should be made on the filing of a notice of objection.

Clauses 10 to 14 inclusive approved.

On clause 15.

M. de Jong: I don’t know if the Attorney…. I’ve got a few questions about these sections. I don’t know if that entails a switch in staff, although staff would thoroughly enjoy this conversation and would undoubtedly want to remain as spectators.

The Chair: We’ll take a two-minute recess while staff changes.

The committee recessed from 2:38 p.m. to 2:40 p.m.

[J. Tegart in the chair.]

The Chair: We’re considering Bill 9, clause 15.

M. de Jong: I’ll use sections 15 and 16 as the point for asking my questions insofar as the concept, as it applies to the notaries society, is the same. At least, I think it is. The Attorney can confirm that.

I wonder if he…. He briefly touched on, in his second reading remarks, as I think a few of us did, the challenge associated with maximizing the return on trust funds that then benefits the foundations that are referred to in the legislation — the Law Foundation, in particular — and all of the good work that they and the Notary Foundation do.

Maybe the Attorney, though, could take a moment to just explain the conundrum that has presented itself and, I suppose, become more acute in the age of very low interest rates, although I suspect it was also an issue back when interest rates weren’t as low as they are today. Let’s just quickly start there and make sure we all understand what the problem is that is trying to be addressed here.

The Chair: Could I just remind members that if you have a conversation, please take it outside the chamber. Thank you.

Hon. D. Eby: Members of this House will likely know that lawyers and notaries have trust accounts. They receive retainers. A notary might receive the proceeds of a mortgage for a property sale.

They are not permitted to keep the interest from these trust accounts. They have to remit it over to these foundations or, in certain situations, back to the client, where there’s a segregated trust account. In those situations where the money is remitted to these foundations, the foundations use that money for good works, free legal aid services, legal aid clinics, legal information, publications, these kinds of things.

The opportunity here is one that was realized in Ontario. Their provincial Legislature passed similar provisions which allow the Law Foundation and the Notary Foundation to enter into negotiations….

They’re already in negotiations with banks and trust companies to talk about what interest rates will be paid on lawyers’ trust accounts. This provides them with the ability to, essentially, have a list of endorsed banks and credit unions that are approved for lawyers’ trust accounts. That gives them the ability to negotiate fair fees and interest rates on these accounts.

I also understand that Nova Scotia has done similar authority. It has worked out positively for all involved in that the interest rates are fair. The fees are fair.

The mischief that is sought to be addressed is…. I do understand that in the past some financial institutions have paid uncompetitive interest rates on trust accounts or have charged significant fees or charges to the Law Foundation. Because of the disconnect between the lawyer and who sees the impact of those low interest rates and high fees — namely, the foundations…. That disconnect has meant a lack of accountability. This really brings some of that accountability back and gives the Law Foundation and the Notary Foundation the ability to get fair interest rates and fees.

[2:45 p.m.]

M. de Jong: Just to be clear, when the Attorney said user fees to the Law Foundation, my recollection and understanding is…. The trust accounts upon which those user fees are charged are in the name of the lawyer or the law firm. So what happens is that when those exorbitant or excessive user fees are charged against that account, the impact is less money flows to the foundation. It’s not as if the foundation is being charged those fees, but it is having an impact on the funds that flow to the foundation.

The only thing that I wanted to be on guard about and have a conversation with the Attorney about on this matter relates to some concern that might arise about whether or not existing relationships between lawyers and notaries and financial institutions might be impacted.

In asking the question, I will invite the Attorney to make the point to the committee about what happens, now, under the Legal Profession Act, where the saving institutions are prescribed today as being qualified to host a lawyer’s or notary’s trust account. The exercise of prescribing where an account can be set up exists today, as I understand it. If the Attorney can offer some indication of how that happens….

My understanding is that if the technical requirements are met, a lawyer can establish a trust account virtually anywhere. I can’t remember if the regulation includes a list of savings institutions or if it’s merely descriptive of what the savings institution must have or how they qualify. So that’s the first thing.

What’s now being added is a second layer that says: “In addition to those technical requirements and representing a prescribed savings institution, they must now pay interest at a certain level.” But let’s start with the first part, and maybe have the Attorney confirm what the present state of affairs is.

[2:50 p.m.]

Hon. D. Eby: The relevant Law Society rule is rule 3-56. The requirements to become a designated savings institution are that you must have an office in British Columbia accepting demand deposits, and you must be insured by either (a) the Canada Deposit Insurance Corp. or (b) the Credit Union Deposit Insurance Corp. of British Columbia. Those are the existing requirements.

The new requirement that this bill proposes to add is that it also must be an institution that is paying interest and charging fees at a level approved by the board of the Law Foundation. That would be an additional requirement, and it’s important to note, in terms of implementation, that the Law Foundation is prepared, on this coming into force, to deem all current arrangements approved with banks and credit unions so that there will be no impact on lawyers and notaries in the short to medium term as they then work through the process of negotiating these rates with the relevant banks.

The member also asked about whether fees are charged to the lawyers or to the Law Foundation. I’m advised that the current structure of things is that the Law Foundation goes out to the different banks and credit unions and negotiates interest rate and service charges that are actually paid — the service charges — by the Law Foundation of B.C. So often it’ll be a charge of a certain number of thousands of dollars a month that are paid by the Law Foundation of B.C. to the institutions for the service charges on the trust accounts.

M. de Jong: To a lawyer or a law firm who might be concerned — and I think my greater concern here might be for lawyers and law firms located outside of major metropolitan areas, although, I suppose, the issue could arise there as well — who might say, “Okay. Well, this is all well and good, but I have had a 30-year relationship with my small credit union or my savings institution here in my town,” the Attorney is offering assurance that says that relationship will continue.

Under the Legal Profession Act, presumably, that trust account exists at a savings institution that has been in compliance with the Law Society rules that have been created under section 33(1) of the act. As long as that is the case, that relationship may continue.

The added assurance that the Attorney has offered to the committee is the foundation’s apparent decision to honour existing relationships.

[2:55 p.m.]

I’m not sure of the relevance of that statement by the Law Foundation, because, as the Attorney has pointed out, the only new requirement will be that that savings institute is prepared to pay interest at the rate prescribed by the foundation and not charge fees in excess of those agreed to in an agreement with the foundation.

If I’ve got all of that correct, then that would seem to be the assurance that law firms, practitioners and sole practitioners, in particular, might be looking to secure out of this discussion today.

Hon. D. Eby: Under the current process, the foundations do take into account the size and location of financial institutions when seeking to negotiate rates and changes. We understand that they’re going to continue to do so.

Obviously, there’s online banking, and there are lots of ways for lawyers to do this work. But it is something that is taken into consideration in the existing negotiations that are already taking place with the Law Foundation and the Notary Foundation.

I do think it is important, though, to note that we are proposing to give the ability to these foundations to not approve a particular financial institution. If that were the case, a lawyer or a notary would need to move their trust account elsewhere or potentially face disciplinary action by their regulator. Now, they could do all of their other banking with this institution still, but the trust account would potentially need to move.

It’s important to be clear about that, but at the same time, in practice in Ontario and Nova Scotia, my understanding is that if not exceedingly rare, then perhaps it has not actually come up that a bank was not approved.

It’s gone more to the nature of the negotiations than whether or not a bank or a credit union is approved.

M. de Jong: I’m just going to take a couple more minutes on this. The Attorney said something, and again, I don’t wish to be overly specific. But he talked about the foundation approving savings institutions.

My understanding is that that’s actually not technically correct. They don’t approve the savings institution. They are empowered in this legislation to set the amounts — the interest rates and the fee amounts. So the approval of the savings institution remains with the Law Society, with the benchers. But what the foundation is being authorized to do is set an interest rate.

The Attorney said something I thought interesting that I hope he’ll expand upon.

[3:00 p.m.]

When you read the act, or when you read the amendments, it suggests that there will be an interest rate, but the scenario that the Attorney has pointed out suggests that there will perhaps be a whole variety of interest rates. They might be different, or they likely will be different, for different savings institutions. I think people will be interested to hear a little bit more about what that may look like, practically.

Hon. D. Eby: The member’s understanding of my remarks is correct. There are likely to be — certainly, in practice, it has been the case in Ontario — multiple interest rates, depending on the size of the institution, location of the institution and also the balance between the interest rate and the fees. So some might offer more interest but charge more fees. Some might have a lower interest rate with fewer fees. They are negotiated institution by institution.

[S. Chandra Herbert in the chair.]

M. de Jong: To come back to my original point in my last submission, if the Attorney could maybe clarify. The benchers approve savings institutions. The foundation has the authority to determine what the interest rates and charges are for those trust accounts.

When he has done that, can he indicate to the committee then what we should anticipate seeing at some point from the foundations — the two foundations, in fact? Will they take the list, in the Law Society’s case, from the benchers? “Here are all of the approved savings institutions in which you may have a trust account, Madam or Mr. Lawyer. But if you do, here are the interest rates that those accounts must have, and here are the amounts that can be charged.”

Is that chart going to be produced in that way so that everyone knows what the rules of the game are?

Hon. D. Eby: Based on the experience in other provinces, the expectation is that the communications would be the reverse of what the member has suggested — that the assumption of lawyers and notaries, generally, would be that their institution is in compliance unless they receive notice from the relevant foundation or regulatory body that a bank or credit union is not paying interest at the level that is required.

The expectation is that the Law Foundation, the Notary Foundation would work with the regulators to communicate in the unlikely event that there is an institution that is not willing to meet that standard.

M. de Jong: In a moment, I’m going to come to one last question or two.

The last time I had a look at this in detail, actually, was a few years back. It had to do with the Real Estate Foundation. I expect in terms of the trust accounts, the variation or the variety of interest rates being paid…. Can the Attorney indicate, with the assistance of his staff, based on the experience in other provinces, the degree to which…?

[3:05 p.m.]

There was a surprising degree of variation in the rates paid by savings institutions in the case of the Real Estate Foundation. The Attorney has already mentioned that a smaller credit union is in a different position than a big-five bank. Are these rates and the negotiations…? It’s a negotiation that, ultimately, the foundation says: “Here’s what it’s going to be.” The strength of the bargaining position is going to change pretty significantly between the institutions and the foundation.

Does he anticipate that there will be a continuation of that variation? There’s going to be a floor below which no one can, if they want to be in this business…. But does he anticipate there being accommodation? And is that reflected in the Ontario example?

Hon. D. Eby: Because it’s institution-by-institution, there may still be variation, based on the structures that work best for them. Some might have a higher interest rate with higher fees, and some might have a lower interest rate with lower fees. Some, because they’re a small credit union or a remote community, may have a lower overall return back to the foundations. So the member can and should expect some level of variation between institutions.

We unfortunately don’t have detailed information about what that spread is in places like Ontario. But even if we did, we understand that that might be sort of the art of the negotiation, as well, that they engage in with these institutions, and it might be sensitive information from that perspective. So that’s our best information we can provide on that.

I have been negligent in not introducing, after our shift change here…. I’m joined by Andrea Buzbuzian, from JSB legal counsel, and Katie Armitage is assisting me here, as well, legal counsel. I was joined earlier by Nina Bindra, who was assisting with the CRT, related to ICBC.

Also, while I’m doing some minor housekeeping here, a correction from an earlier question that I answered on clause 10. I advised the member that LGIC had not made a regulation under the amount for deposit on a notice of objection to Provincial Court. In fact, that was not correct. LGIC has made a regulation under that section.

It was in the tribunal small claims regulation, section 4. It said the maximum amount for deposit on a notice of objection is equal to the amount awarded by the tribunal. If the tribunal awarded $2,300, the maximum deposit on notice of objection could only be $2,300. It also allows an additional $1,000 as security for costs. I want to clarify the record on that.

M. de Jong: I am always cautious about presumptions, so I’ll ask the attorney to confirm…. When the linkage between approved and prescribed savings institutions and the interest and fees they’re entitled and obliged to charge has been settled, I presume that will be publicly available. Not that many people will be interested, but presumably, some in the legal and notarial community would be interested, and the foundation, of course, will know it because it set the amounts.

Will the list be publicly available? Will people know what their bank or credit union or savings institution is paying in terms of interest?

[3:10 p.m.]

Hon. D. Eby: It is not expected that that information would be made public. The relevant regulators do have notice of who banks where. They’re going to be able to notify members that the institution they’re banking with does not meet the minimum standards. That’s the extent to which we’re aware: that there would be a sort of public reporting obligation. It would essentially be on the part of the regulator, notifying the relevant notary or lawyer about the fact that the bank or credit union wasn’t qualified.

M. de Jong: Okay, I think I heard the Attorney say that he did not anticipate the information would be publicly available. I’m curious. If I’m a practitioner — if I’m a notary or a lawyer — and I take some interest in the fact that funds in my trust account pay interest to the Law Foundation, which supports a lot of worthy endeavours, wouldn’t I want to know?

Wouldn’t I want to know that if I set up my accounts at this savings institution, it will generate X amount of benefit for the Law Foundation, versus if I it set up at Y savings institution, which will generate considerably less or considerably more? I have to say that I’m a bit surprised by the answer.

Hon. D. Eby: While they don’t publish the rates, I’m advised that currently, the Law Foundation of British Columbia publishes a list of banks and credit unions that pay favourable rates in their annual report as a special thank-you to those institutions. But that, I understand, is the extent of that kind of public reporting.

I don’t understand that there’s any bar to a lawyer inquiring of their financial institution and learning what the interest rate is that is paid on their trust account. They could do so. But they wouldn’t be able to compare that to a list, like a mortgage rate list, of what various institutions are offering.

There is a practice resource available to lawyers, a letter of instruction to a bank or a credit union when setting up a trust account. That letter, once this legislation passes, would be modified to instruct the bank to calculate the interest on the trust account “at the rate and in the manner agreed upon between your institution and the Law Foundation of British Columbia, and to remit such interest directly to the Law Foundation according to the terms of that agreement.”

It does note, “In the event that there is no agreement in place, please contact the executive director of the Law Foundation,” for a credit union — maybe a small credit union that wasn’t aware that this was a thing.

[3:15 p.m.]

A practice letter shows the break between the lawyer’s activities and the interest and the proceeds of the trust account that are remitted to, and the business of, the Law Foundation. Lawyers are asked by the Law Society to instruct their banks and credit unions accordingly.

M. de Jong: Okay. Well, I disagree. We have decided….

I think in the second reading remarks, there was support for what’s being attempted here. I think there’s still support for what’s being attempted here. In granting this unique authority to the foundation…. And it is a unique authority. It’s one that benefits the foundation greatly, potentially greatly. I’ll ask a question about that in a moment.

Is it…? I’m trying to understand the hesitation on the part of the Attorney and the government and the officials advising him to, once the decisions have been made by the foundation, making that publicly available. Not that the public is going to rush out, but people in the business of the law or the notaries might be interested to know. I mean, it’s not something that impacts them directly, but it does impact their ability to use the funds that flow through their offices to generate public good, and it might influence them to know that if they go to another savings institution, their trust funds will generate an additional amount.

Is this an argument around, sort of, proprietary interest? I’m not sure I understand the argument for not disclosing the decisions that are ultimately made by the foundation. The foundation is being given statutory authority to say to an institution: “You must pay X amount of interest.” Now, we’ve talked about a negotiation, but it’s a negotiation that ends with a legal authority being bestowed upon the foundation to say: “You will pay X amount of interest, or you will not be entitled to have trust accounts.” I don’t understand why that, in principle, wouldn’t be public information.

I’ll let the Attorney maybe try to persuade me about why keeping that information from the public and wider distribution is appropriate.

[3:20 p.m.]

Hon. D. Eby: We don’t understand that there’s any bar on the Law Foundation or Notary Foundation publishing the rates. One assumes that if they thought there was some advantage to doing that, in the sense that there would be philanthropic lawyers and notaries moving their accounts, they would do so.

In fact, the Law Foundation of B.C. does publish a preferred institution list. I’m certainly happy to raise the member’s suggestion with them. The member is right that there’s no requirement here that they in fact publish them. I mean, this wasn’t an issue front and centre, but this was understood to be negotiation, akin to contract negotiations, between the foundation and the credit unions and banks, and that there was a certain sort of business relationship between them that was being negotiated.

Again, just for clarity, we can’t see anything, except for maybe an agreement reached with the bank or credit union, that would prevent them from publishing this information, if they chose to.

M. de Jong: Well, maybe we can take a moment or two to use the committee’s time to send a message to the foundation around the advisability of that, and I have a couple of propositions to make to the Attorney General for his agreement or disagreement. If it were the government that were prescribing fees and interest rates — and it’s not — that must be paid, that information would be public.

I’ll put that as the question. I presume the Attorney would agree with that.

Hon. D. Eby: We do have rules around interest rates, for example, in relation to payday lenders, and the federal government has rules around criminal rates of interest. Within those prescribed limits, which are public, in regulation and law, there could be a wide range of negotiations between the parties engaging in that practice. We set the parameters for that publicly, and then the rates that are negotiated are negotiated between parties freely.

This is setting out the basis on which the negotiations can take place and shifting some, frankly, of the power in the negotiation to the foundations. But we’re not prescribing interest rates here, nor are we obligating the banks to pay an interest rate or a credit union to pay an interest rate. They just as easily could say: “We don’t wish to pay that interest rate on this trust account. Thank you for your offer. Have a wonderful day.” So it’s not a legal requirement that they pay that.

M. de Jong: No, but the trade-off for not paying it is you don’t have a trust account. I mean, that’s the flip side of it.

I have to say of all the things we went through, I was not anticipating to get hung up on this particular aspect of the bill.

Would the Attorney be worried at all about allegations, down the road, of preferential treatment?

[3:25 p.m.]

I mean, I can see allegations arising that savings institution X, for whatever reason, was able to cut a better deal or got a more sympathetic hearing from the foundation. And by the way, that’s the unique part of this. The government isn’t prescribing it. It isn’t prescribing the rates and the fees. If it were, it would be public. That’s the essence of what the government does through OICs.

What the government is saying to a foundation is: “You can do so, and you will have that authority.” We’ve talked about negotiations. But at the end of the day, the foundation is going to set the rates, and apparently, be able to do so differentiating between savings institutions.

The possibility, given the amounts of money involved, that someone is going to come along later and say: “Well, hold on. Savings institution X has, we think, managed to secure a very, very favourable arrangement with the foundation, and we don’t know what it is.” Now, I’m not suggesting that that would, in fact, be the case. But I can certainly see allegations being made, if the information isn’t simply made available.

The Attorney has helped me a little bit by saying that there’s nothing to preclude that from happening. I think I’m going to ask him for a slightly more forceful statement that says to the foundation: “Actually, as you come to these agreements, it’s our expectation — as a committee, as a Legislature, as an executive branch — that just as it would have to be public if the government were doing it, we’re asking you to do it in our place. We think that information should be publicly available.”

Hon. D. Eby: I think it’s important to keep in mind the interest of the foundations here. The interest of the foundations is to maximize their revenue for their good legal works. There is no benefit that comes to them by cutting a deal with a particular bank or credit union that’s dramatically lower than other institutions. The interest in that scenario would be to say: “Please don’t….” More than please: “You may not deal with this institution.”

That scenario where someone is getting a really good deal is a complicated one that would be against the very interests of the foundations themselves. I’m not sure that publishing the rates wouldn’t lead to exactly the situation that the member describes. Publish all of the rates. Here’s the list of rates. You know, “Oh, we at RBC noticed that the Quesnel credit union is only paying 2 percent on this, so we’re not going to pay more than 3 percent, even though we have 20 percent of the lawyers’ trust accounts. They’re in a smaller community, and we don’t deliver the same services in that community.” The challenge of that kind of a process is not addressed by publication or not publication.

The aim of this bill is really to bring back together the interests of the client of the bank — in this case, the foundations — and the bank.

If you were looking for a mortgage, you would be shopping around. Very few people pay the published mortgage rates. You might get a slightly better rate because they want your business on some other piece. You might pay slightly more because your credit rating is riskier. You’ll go around, and you’ll shop around, because it’s in your interest to find the best rate for you.

[3:30 p.m.]

The problem that we’ve faced with these foundations is that their interests are separated from the lawyer’s interests and the lawyer is the one who is opening the account. So the lawyer opens the account, and the bank or the credit union can say: “If you locate your trust account with us, we’ll give you this array of benefits for your personal and business interests. Then leave it to us what we pay and charge on the trust account.”

There’s a separation in interest between the interests of the foundations — that there be a high rate of interest and low fees on the trust account — and of the person who is actually opening the account. Now, I think most lawyers would be sensitive to that and would try to get a good return on the trust account as a matter of principle, but there’s nothing to ensure that. This is simply aiming to bring those two things together. The party that benefits is able to negotiate and unify those interests.

I accept the member’s discomfort, as he articulated, that these aren’t published. I’m not sure I share it. But my interest is that these foundations are able to negotiate the best rate and lowest fees possible to maximize their good works in British Columbia. If they feel that that is facilitated by publishing, they should publish. If they feel that that is inhibited by publishing, then they should not publish.

The interest that government has is that they be able to negotiate effectively and find a good rate of return on these things. The scenario that the member paints of a favourable deal for one institution is one that would put that at odds with the very structure and interests of the foundations themselves.

M. de Jong: What I tried to address is the difference between what may be the reality and what may become a perception when information isn’t readily available. I’ll say it again. I and the opposition agree with the objective to maximize the benefits available to the foundation from the vast amounts of money — we’re talking about billions and billions of dollars over the course of the year — that are held in trust.

I agree entirely with the description the Attorney has offered of the disconnect between the interests of the foundation and the interests of the practitioner, who is not receiving any direct benefit from interest generated by the trust account. That often translates into a level of disinterest or, in the scenario that the Attorney has pointed out, even negotiating away some of that benefit to the foundation to benefit other aspects of the business that might be undertaken. I get all that.

I’ll take one more kick at this. Simply, as the Attorney fairly pointed out a few moments ago, what may flow from this legislation is that there is a lawyer, a notary, a law firm or a notary firm out there that, sometime down the road in the next number of months, may get a letter that says: “The savings institution with which you have chosen to set up your trust account is not in compliance with the requirements, as determined by the foundation, as it relates to interest paid and fees chargeable. Therefore, they are no longer qualified to hold your trust account. So pick another institution.”

Well, that law firm, that lawyer, that notary, that notarial firm is going to say: “Well, all right, where should I go? I’ve got to move my business.” If they don’t have access to that information, in the absence of that information being available, I guess the foundation or the Attorney would say: “Well, you just go pick another one off an approved list, and see what you come up with.” I don’t think that’s appropriate.

We’re taking this step to empower the foundation to set these prescribed amounts. It strikes me that the flip side of that coin is that, in providing them with that power and that authority, they’ve got to share how they exercise it, the nature of those agreements and the amounts they set.

[3:35 p.m.]

I’m not sure what else I can do to try and make my point, but the example I’ve just shared sounds like a pretty realistic one to me. Someone is going to get a letter saying: “You can’t have your trust accounts over here any more.” They’re going to go: “Okay. Well, where should we go? Who’s paying what interest?” Unless that material is available somewhere, they’re not going to know.

That’s my pitch to the Attorney and, through him, to the foundation, which is acquiring a significant authority that is going to alter the negotiating dynamic. It’s ultimately no longer a negotiation, per se, because they have the power.

There we go. That’s my kick at the can on the advantages, the advisability and, in this case, I would say, the requirement — I would use that term — of at least obliging the foundation to make the information available to those for whom it is of interest.

Hon. D. Eby: The member has moved me with his final argument of this scenario, where someone gets the notice, and they’re like: “Well, where am I going to go?”

I will absolutely go on the record and encourage the foundations, when they have preferred providers that offer greater benefits to them, that they provide those recommendations to lawyers and notaries and that they provide that information freely. I understand the Law Foundation of British Columbia does that, to an extent, with their preferred provider list. It seems like a way that guidance could be offered to the profession to locate at institutions that pay favourable rates. They could be rewarded for offering those favourable rates. That would be a positive thing to do so.

I’ll join the member in recommending that. I won’t go so far…. I think we part ways around obliging it. The interest of the government, as I’ve articulated, is to maximize the revenues of these foundations through a fair negotiation that allows access to trust account services for lawyers and notaries and, at the same time, pays a fair return. To the extent that publication facilitates that or not publishing facilitates that, leave that to the relevant foundations to determine that on a case-by-case basis.

M. de Jong: Two last things on these clauses 15 through 19.

When the Law Foundation and the Notary Foundation came to the ministry and to the government, I suspect that they — as a different foundation did a few years ago with me — said: “We think we’re leaving X amount of money on the table.” Now, it would have been an estimate. It would have been a range. They would have told officials within the ministry: “Because of the fact that lower-than-reasonable interest rates are being paid” — in an age of low interest rates, by the way; in some cases, some institutions aren’t paying any interest rates — “we think we’re losing X amount of money.”

I’d be curious to know, at this stage…. We’re taking the step, presumably in part…. Well, not in part. We’re taking the step to maximize the return to the foundation on these deposited trust amounts. Can the Attorney share with the committee what the estimates are that this will generate in terms of additional revenues to the foundations?

[3:40 p.m.]

Hon. D. Eby: The Law Foundation provided us with an example, in correspondence that they sent to us. In this scenario, they looked at one of their major financial institutions where their trust accounts were and calculated that if there were a 50 basis point cut in the interest rate paid on trust accounts there, that would result in a loss of between $600,000 and $750,000 in annual revenue. If it was a 35 basis point cut, it would be a $420,000 impact in revenues. These major institutions, even on a relatively small shift in interest rates, have a very significant impact.

I’m afraid I don’t have the exact number that the member is looking for. But even if you looked at the big five and a 35 percent basis point cut — five times $420,000 — you’re talking over $2 million of Law Foundation programming affected by a relatively small interest rate cut. Or a corollary 35 basis point increase — $2 million more funding for justice programs in the province. That provides some idea of the potential scale of the negotiations and the value of them involved here.

M. de Jong: Okay, that’s helpful. I mean, presumably, we’re doing this to effect an increase. I’ll qualify that. If the Bank of Canada rate drops, then that is something outside of the control of this chamber and the foundation. But in the short term, that doesn’t seem to be the trend line.

I presume, the foundation, in making its pitch for this legislation, said to the government, said to the ministry and the Attorney: “Look, we think there are a number of institutions who are paying below what is reasonable in terms of interest on trust accounts. We’re looking for you to give us some leverage, some authority, to convince them to pay what is reasonable or get out of the business and have moneys transferred to institutions.”

I am certain they would have said that in today’s world that would translate into some additional amounts of revenue. It is an estimate, and it is a range. The Attorney has signalled what 35 basis points means, but it would be….

We know what the foundation got this year. When this is up and running, it would be nice to be able to look back and for the foundation to be able to say: “As a result of this initiative, we think somewhere between X and Y millions of dollars were generated in additional funds, and we’ve sent that money to Legal Aid. We sent it to the library, and we sent it to all those worthwhile agencies that are now benefitting as a result.”

[3:45 p.m.]

Hon. D. Eby: Certainly, in a rising interest rate environment, our hope would obviously be that this might allow trust account revenue to match that increase we see. But, just as much, this is to try to avoid reductions in revenue for these foundations. The annual interest revenue for the Law Foundation fluctuates quite wildly depending on interest rates and also economic activity in lawyers’ trust accounts.

We see things like, in the early 2000s, revenue being in the range of between $7 million and $17 million, but when you get to 2007, revenue was $51 million. Then when you get to 2013, it was $18 million. Then you get to 2018, and it’s $52 million. So it really has very remarkable peaks and valleys, and one of those valleys lasted for a long time — between 2009 and 2016 — where they saw record lows in terms of the revenue from lawyers’ trust accounts.

The hope is that this is going to stabilize some of the revenues as much as potentially increase them but also to guard against unexpected cuts to interest rates.

M. de Jong: I should have asked this earlier. Can the Attorney advise…? In the agreements that are negotiated and the final decisions that are made…. And this may be drawing, again, on the Ontario example. Rather than setting, in the case of interest rates, specific amounts, has the practice been to tie it to a Bank of Canada rate and create a range? Otherwise, at a time when interest rates seem to be changing, there is going to be a lot of movement, and these things are going to be out of date pretty quickly.

Hon. D. Eby: Yes. We’re advised by the Law Foundation that under their current structure, they typically negotiate a rate, which is prime less a specific percentage. So it fluctuates with the prime rate.

M. de Jong: Thanks. Last couple of questions, I think, and I’ll tie them into these sections.

I mentioned earlier that I became aware of the general issue when another agency not, admittedly, addressed in this legislation, the Real Estate Foundation, came forward. Of course, the Real Estate Foundation does a lot of similarly good work in a slightly different area than the Law Foundation and Notary Foundation. It’s not included, although the circumstances are different. Is there a particular reason?

The Real Estate Foundation has been seeking this kind of change now for, I would say, four or five years. The work that was begun earlier wasn’t completed. They will be looking at this and, I think, saying: “Well, what about us?” Was there a particular reason that the Real Estate Foundation, which obviously sees a significant amount of money flow through its trust accounts…? Was there a particular reason that it wasn’t included in this series of amendments?

Hon. D. Eby: The Ministry of Finance has responsibility for the Real Estate Foundation. The member is right. The Real Estate Foundation does not currently have this authority. The Ministry of Finance is aware of similar concerns that are related to the Real Estate Foundation and may, in fact, consider similar amendments.

M. de Jong: Two questions. It sounds to me as if the Attorney General would be supportive of seeing the Real Estate Foundation and real estate trust accounts dealt with in a similar manner. If that’s the case, hearing him say that is a good thing.

[3:50 p.m.]

He may wish to defer my other question. I was advised…. It was suggested to me that perhaps one of the reasons the Real Estate Foundation wasn’t included relates to some plans that the government may have to alter its composition, even the creation of a Crown corporation. I’m not sure the Attorney has any information he can offer in that respect, or if he does, whether he wants to, but I will at least pose the question.

Hon. D. Eby: I don’t have any information about this. Certainly, for the Law Foundation and the Notary Foundation, I think this is good policy. I don’t know about the structure of the Real Estate Foundation and the wishes of its governors sufficiently to say whether this would be an appropriate solution for them. But I would certainly recommend that they study it and determine whether it is, in fact, a good structure.

In regard to the member’s suggestions, I’m not familiar with that matter, so I would suggest that he refer those questions to the Minister of Finance, who is responsible for legislation related to the Real Estate Foundation and realtors.

M. de Jong: What’s the best estimate from the Attorney about when we would see the new regime fully in place and operational? And by that, I mean the foundation having set the rates and concluded the agreements. What’s the objective by which time both the Law Foundation and the Notary Foundation will have concluded this work? It’s obviously in their interest to move as quickly as possible, but what are the government’s expectations in that regard?

Hon. D. Eby: The Law Foundation has advised us, and in fact they’ve issued a press release to this effect, that they will be honouring the existing arrangements between financial institutions and the Law Foundation. As those agreements come up for renewal, that would be the point at which negotiations will take place under this new system. So they’re staggered between institutions so it won’t all be at once. The existing agreements will carry forward until such time as they expire as they’re written.

M. de Jong: Sorry. Those are agreements between the foundation and the lending institution? Because the accounts are the accounts, and they probably continue in perpetuity as long as the practitioner and the firm are going. Is it the Attorney’s advice to the committee that the agreement presently in place between the foundation and these savings institutions have finite time periods? Secondly, it’s my understanding that not all of the savings institutions have agreements, which is part of the problem.

[3:55 p.m.]

Hon. D. Eby: Staff advise me that there may be agreements that don’t have a term. So I may have inadvertently not accurately represented what might happen in some cases. But the Law Foundation or Notary Foundation may, in fact, proactively approach an organization.

What I would like to confirm is that the wording from the press release from the Law Foundation is that if these amendments are enacted, lawyers will not need to take any action in response to the legislative change. The board of the Law Foundation will be adopting measures that ensure that existing arrangements between financial institutions and the Law Foundation are deemed approved when the change comes into force.

Clauses 15 to 21 inclusive approved.

Title approved.

Hon. D. Eby: With appreciation to my critic for a thorough debate on both bills, I move the committee rise and report the bills complete without amendment.

Motion approved.

The committee rose at 3:58 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 9 — ATTORNEY GENERAL STATUTES
AMENDMENT ACT, 2022

Bill 9, Attorney General Statutes Amendment Act, 2022, reported complete without amendment, read a third time and passed.

Hon. D. Eby: I call Committee of the Whole on Bill 11, Commercial Liens Act.

[4:00 p.m.]

Committee of the Whole House

BILL 11 — COMMERCIAL LIENS ACT

The House in Committee of the Whole (Section B) on Bill 11; J. Tegart in the chair.

The committee met at 4:01 p.m.

The Chair: We are addressing Bill 11, Commercial Liens Act.

On clause 1.

Hon. S. Robinson: I just would like to introduce to the House my two staff people who are here to guide us through this bill. We have Renée Mounteney, the assistant deputy minister, policy and legislation division. She’s on my right. On my left, we have Cynthia Callahan-Maureen, director of pensions and personal property security, financial and corporate sector policy branch, policy and legislation division.

P. Milobar: I just have a few front-end questions that maybe would be easier to deal with during clause 1. Then we’ll have a few in various other sections. It’s a fairly lengthy bill and fairly technical, so hopefully, we can plow through this.

I guess I’m just trying to get a sense from the minister. This is a very technical bill. It’s very heavy with detail. I’m just trying to get a sense. That’s not always been the case. This one does not seem to leave much up to regulation in terms of that detail. Other bills definitely do rely on regulation and not detail. I’m just wondering the thought process behind this bill in particular. Why not just make it enabling legislation, with detail to come with regulation later?

Hon. S. Robinson: This commercial legislation, of course, needs to be enduring legislation. When there’s enabling legislation, it’s typically because you want to have some flexibility or recognize that there are different regions around the province that might need a little bit more flexibility. But this is a bit different in terms of its context.

It’s a uniform piece of legislation that is recommended by the law conference of Canada that we adopt the model act, which is already enacted in Saskatchewan. Other provinces, we expect, will be coming on board so that the law is consistent right across Canada. So in order to make changes, it’s going to take significant work, of course, with our provincial partners. That’s why it’s built into the legislation directly.

[4:05 p.m.]

P. Milobar: Thanks for that. I do recognize that Saskatchewan already has this and that the hope and intent is to have other provinces and, in fact, a national framework that’s cohesive.

Does the minister have any idea where the other provinces are at in terms of their timelines for looking at implementation, especially Alberta, I guess, and, potentially, the Yukon as well? Obviously, those would be the most interactive with us in terms of repairs and things of that nature, especially when you think of the Peace region or the Kootenays, in terms of back and forth and seeking services on either side of the border either for industry or other types of repairs and things that would be covered off in this act.

Do we have any sense of when Alberta or the Yukon would be joining this?

Hon. S. Robinson: I got a little bit of a history lesson to try to understand the context.

The member asked a question about other provinces and where they’re at. So 2002 is when Saskatchewan brought this in. We’ve been at this since 2014, the initial proposal to modernize this legislation. We’ve reached out right across the nation to let everybody know what we’re doing. At this point, we haven’t heard back from anyone that is actively pursuing this at this time.

P. Milobar: Thanks for that.

Is there any process that B.C. is intending to try to initiate once this has been passed and gone through to try to actually engage, at a higher level or at an awareness level, within the Alberta government or the Yukon government to make sure that those neighbouring jurisdictions are aware and see the value in trying to expedite them coming in sync? Alberta, especially, would be bordered, then, by two provinces on either side that would have this in place.

Hon. S. Robinson: I can assure the member that staff meet annually with their counterparts and will be sure to let them know. If the member would like, I’d be happy to inform my political counterpart in Alberta that we’ve worked through this legislation. We’d certainly encourage them to take a look so that we can have some consistency, particularly for those who live along the border towns, the border communities.

P. Milobar: I’m just wondering if the minister or her staff has done any review or looking into any potential impacts that this may have with agreements like, say, a TILMA, in terms of that cross-border trade? Has this has been looked through with that lens? Or if there’s no difference in terms of our ability to set our own rules within our own province and not…. Then I’ll likely come back to this when we get to cross-border and out-of-province clauses in the bill.

[4:10 p.m.]

Hon. S. Robinson: There are no trade issues with this legislation.

P. Milobar: Just one or two other general questions on the front end here.

The minister had mentioned how this is to align with Saskatchewan — the hope is to align nationally — but also referenced that there would be, obviously…. The reason for not leaving it all to regulation was partly that, partly to make sure there was a cohesive set of rules across the province regardless of region.

I did somewhat joke about the Tugboat Worker Lien Act within this and the modernization of that. Obviously, that does revolve mainly around coastal areas of the province. As much as I can vaguely remember a tugboat on Shuswap Lake towing around logbooms, I can’t imagine Saskatchewan has a massive amount of tugboats, or other provinces, but they may have. To that end…. I don’t take issue, obviously, that that’s in this bill for B.C.

Are there any particular clauses or sections in this bill that would be separate and apart from what would be a national standard? In other words, has B.C. done some additions or some changes to what Saskatchewan has? If so, what would those B.C.-specific sections and clauses be? I can just quickly highlight them and then have some follow-up questions in those areas when we get to it.

Hon. S. Robinson: When we get to section 3, the member will see — or clause 3, as we call them now — there is no application of the commercial liens act. We have the Forestry Service Providers Protection Act, which is unique to British Columbia.

[4:15 p.m.]

P. Milobar: Thank you for that.

I do want to assure the minister. These are strictly educational-type questions today. I recognize that we’re not going to be trying…. I’ll let the minister know I’m not trying to amend or anything. It does get to be a very confusing part for a lot of people watching, and I think the clarity for the public will be well served, as well, moving forward, as to why some things are or aren’t in this bill.

With that as a background, I did have questions already on 3. I’ll save those for then.

There’s also the Builders Lien Act. I recognize that this does not cover that, but we have heard issues from builders and suppliers, both — and homeowners, everyone — around concerns, from time to time.

That wasn’t part of this. I’m just wondering if we could have an explanation on why it wasn’t part of it. What is the plan to try to modernize the Builders Lien Act and the timeline for that, moving forward?

Hon. S. Robinson: I thank the member for the question.

A builders lien is a lien on land. It secures a claim for payment for work on a construction project or repairs or renovations made to an existing structure by workers, contractors, subcontractors, engineers, architects. It also secures a claim for payment for materials supplied to a construction project. When a builders lien is registered in the land title office, it becomes a charge against the title to the land or the property involved.

The Builders Lien Act is with the Ministry of Attorney General. It’s not under the Ministry of Finance.

Clauses 1 and 2 approved.

On clause 3.

P. Milobar: A similar question to the builders lien. I’m just wondering why…. I’m assuming it’s probably because it’s under a different ministry. If we get clarification on why the Forestry Service Providers Protection Act would not be included in this today, that would be great.

Hon. S. Robinson: Based on consultation with the Ministry of Forests, Lands, Natural Resource Operations and Rural Development, contractors that are entitled to a lien under the Forestry Service Providers Protection Act should not be entitled to a lien under this act for the same services.

The Forestry Service Providers Protection Act, which was enacted in 2013, is designed to address payment problems in the contracted forestry sector, which operates under licences issued under the Forest Act. It also creates a forestry service providers compensation fund to reimburse forestry service providers if a licensed forest product owner becomes insolvent.

Of course, this sits with the Ministry of Forests, Lands, Natural Resource Operations and Rural Development.

Clauses 3 and 4 approved.

On clause 5.

P. Milobar: Further clarification on when the lien attaches to the goods on commencement of the services, which is what clause 5 is. Is that essentially saying…? I take my car into a repair shop, leave it there. The clock is already ticking. There may be paperwork that needs to be done to commence a lien on the car, to remove it back out.

I’m not articulating this very well, admittedly, to the minister. I think I’m answering my own question, actually, as I stand up to speak. So you know what? I’m going to say 5 is all good.

Clauses 5 and 6 approved.

On clause 7.

P. Milobar: I’m just wondering. It looks like this does not prevent the dispute on the amounts owed as well.

What is the process there, if there is not only the lien being filed but a disagreement on the amounts that are owed? How is that to be enforced?

[4:20 p.m.]

Hon. S. Robinson: Well, certainly I would, and we all should, encourage people to work it out. I think that that’s ideal. But if they can’t and we get to section 44, the member will see that this section allows someone to go to court to challenge the amount they think that they are being charged too much.

Clause 7 approved.

On clause 8.

P. Milobar: This clause is all about transferability, so I’m just seeking clarification. I think it’s to be the case, but again, more for certainty and clarity for others who may be watching or reading transcripts later to get a better understanding. If I’m the lien holder, this clause says that if I have moneys owed….

The member for Peace River South — I have a lien on his car. But the member from the Kootenays I owe money to. This gives me the ability to transfer that lien over to a different person. That may settle one of my debts, but that would still leave that debt owed to whoever the lien gets transferred around to. Is that how I’m interpreting this clause?

Hon. S. Robinson: We were discussing the use of language and how policy gets written, and how it gets understood is sometimes not always that easy in terms of the language that gets used. If I understand the member correctly, it’s about whether or not a friend can pay your debt for you and then just transfer where the debt goes. It is certainly possible to do that here.

Clause 8 approved.

On clause 9.

P. Milobar: Again, just getting clarification on this clause. The lien holder could…. Am I reading it correctly, or am I reading it in the reverse? The lien holder could still grant even more credit to the person the lien is against if they choose. Or are they capped out, and until the lien is gone, they can’t do anything more?

[4:25 p.m.]

Hon. S. Robinson: This clause is a clarification. If the lien holder wants to provide grant credit, they’re free to do so.

Clauses 9 to 17 inclusive approved.

On clause 18.

P. Milobar: Again, a very lengthy clause here. Some of them are quite lengthy. This is around the transfer of owner’s interest in goods with prior consent.

The designated period “begins on the day that is 15 days after the date the owner transfers all or part of the owner’s interest in the goods….” Could the minister just, I guess, give some broader detail or background into the purpose of this clause in terms of the designated periods and the importance of those?

Hon. S. Robinson: The significance of this particular clause is that the lien holder has a 15-day grace period after the transfer to amend the registration to preserve priority against a perfected security interest or an interest resulting from seizure under judgment enforcement or an interest resulting from bankruptcy.

Clauses 18 and 19 approved.

On clause 20.

P. Milobar: I’m just wondering if the minister or her staff could provide kind of a real-world example of what a typical prioritization of the liens would be in terms of the typical type of debt that would be already amassed on a piece of equipment or something that would be subject to a lien from a repairman or woman. How would that actually look with the pecking order of who would be in what position if a lien gets registered?

[4:30 p.m.]

Hon. S. Robinson: If you register…. Let’s say that you’ve done repairs on some equipment for a company, and you’ve registered the lien with the personal property registry, and the company on whose equipment you have been working on gets a loan from the bank and uses the equipment to secure the loan.

Because you’ve registered the lien, it actually gets…. Because it came first….. It actually protects against the bank taking the equipment because you have that lien registered.

P. Milobar: What is the case, then, if the reverse happens? Most people before seeking repairs on equipment would already have a loan on the equipment. So the bank would have a loan in place. The repair person would then be trying to file a lien against the repairs. Who would be in first position in that case? I’m assuming the bank. But could we have…?

That’s kind of the prioritization in various scenarios that I’m just trying to figure out, so the average person knows what to expect. Obviously, big equipment, logging equipment and things like that, it’s likely going to have debt against it from various lending sources.

Hon. S. Robinson: I appreciate the member is looking for real-life examples. If he looks at subclause 20(2), the repair actually improves the value of the equipment. The bank, of course, would benefit from that, and the lien holds, because it’s increased the value of the goods that the lien is against. If that makes sense.

P. Milobar: I’ll just cover that off in 22. I have other questions there as well. So that’s fine.

Clauses 20 and 21 approved.

On clause 22.

P. Milobar: We just heard an answer that related to 22. So the minister is saying that the lien…. I guess I’m just trying to get a better sense of the prioritization and the concept here around: the repair adds valued to the vehicle or the piece of equipment that’s been repaired. So that lien would be the first priority over a bank, even though it would be filed second, after a bank.

Again, this would come into play more often than not, because almost everybody’s personal car, if it’s financed, would have some sort of paper against it, things of that nature. So this has the potential to be a fairly significantly used section, in terms of prioritization of who gets the lien when.

I’m just trying to understand that concept, though, of how, if a bank was assumed to be the main lender against a vehicle, they would then suddenly be put in second position simply because of a repair being done versus the repair person. That’s typically the order of structuring who gets paid out.

It’s my understanding that it’s usually the person that’s there first gets covered off the best, and everyone else get what’s remaining. This sounds like this is doing the reverse. Can I get a bit more explanation on that, to start with?

[4:35 p.m.]

Hon. S. Robinson: I realize that the member perhaps didn’t hear when I said it was subsection 20(2), which is what I was referring to. I hope that this will clarify for him.

If someone has a lien on equipment, like in the example that we used, and the equipment gets sold, the lien holder is entitled to the value of the repairs that are on that equipment because now what you’ve done is you’ve taken out the increased value and it’s gone to the person that has increased the value.

Then the remainder of whatever the value is left over would go, for example, to the bank, because that’s what their entitlement is, given that the lien holder increased the value of the equipment through their repairs.

P. Milobar: Okay. That assumes there’s still enough value there to cover that. Then again, I’m just trying to think of this through…. This would relate more to a home, obviously, but when you’re talking larger equipment, there are, a lot of times, secondary insurance policies that banks would require, as well, for write-offs and things of that nature.

If there was a loan on a larger piece of equipment…. I’m thinking like a logging truck. We won’t use logging. We’ll use some other large piece of equipment for the purpose of this. There’s a bank loan on it. There’s an insurance policy that also secures the bank that way.

Both of those, the payout by the insurance company to the bank and all of that…. That would all be secondary to the repair person being paid out first, for their repair works, and then the residual value taking care of, or not taking care of, the remaining balance that’s owed.

[4:40 p.m.]

Hon. S. Robinson: In the example that we’ve been working through here on the floor of the House, it really is the lien holder…. As long as they’ve registered it and they are entitled to the increased value of whatever they’ve added, the piece of equipment or whatever other work that they’ve done….

Insurance is not part of this legislation, and every insurance policy will read differently. So it’s actually a separate piece. This is really around if you’ve registered the lien and you’ve done work on this, you get that value back. You’re the first in line, and then others come afterwards.

P. Milobar: I’m just wondering if the minister could give a little more explanation to 22. Again, as I read it, this looks like if somebody else is just coming in and purchasing things in good faith and one of the other parties within the lien situation that might be unfolding isn’t disclosing, the good-faith consumer purchaser is sheltered and not looking at things being suddenly slapped with a lien and taken away — that they’ve now been left with after purchasing — and it’s still between the original two parties.

If we could just get a little more detail and explanation into clause 22, that would be great.

Hon. S. Robinson: To explain section 22 a little bit more simply. Goods that are bought or leased in a customary business transaction are no longer subject to a lien. Even if the buyer or lessee knows that there is a lien on the goods, consumer goods with a purchase price of more than $1,500 are not subject to a lien if they are bought or leased by a person who is not aware of the lien. That’s what this section does.

Clauses 22 and 23 approved.

On clause 24.

P. Milobar: I’m just wondering. I don’t believe I saw “reasonable care” within the definitions. This is all about the care of goods in the lien holder’s possession. We’re dealing with a lot of equipment and things of that nature, obviously, with these types of liens — repair work and all that. How one person feels is reasonable to store something is not necessarily another’s.

What type of background…? What has been the experience with Saskatchewan, then? This is obviously in sync, it sounds like, with what Saskatchewan has been doing. Have there been disputes around the care of goods? Obviously, if someone has got an outstanding debt and they’re starting to feel a little desperation creep in and trying to figure out ways out of the debt, claims that misstorage or misuse of the handling of their property is why they’re not paying can start to rear up.

What has been the experience, do we know? And how solid is the wording within this clause in terms of withholding or withstanding any challenges over the years that Saskatchewan has had this in force?

Hon. S. Robinson: This section is consistent with the Uniform Liens Act that was enacted by Saskatchewan. They’ve had this legislation for 20 years. We haven’t received any sort of feedback around disputes around this section, and it really is up to the courts to determine what is a reasonable duty of care as it’s listed out here in this piece of legislation.

[4:45 p.m.]

P. Milobar: If I’m hearing the minister correctly, it’s essentially putting the onus on the person who the lien is against in the first place to say: “You should have paid your debt.” You’re kind of left to the mercy of how the person with your goods is handling things.

If it looks like there are any extra reasonable expenses, costs of insurance and things like that, those are also on the shoulders or can be added to the overall lien value to make sure that things are secured properly, insured properly, stored properly. Any of those additional costs, as long as they’re deemed to be reasonable, would be passed on from the lien holder to the person who is indebted in the first place to the lien holder.

Hon. S. Robinson: Unless there’s an agreement otherwise, the lien holder is entitled to recover reasonable expenses, including insurance, taxes and other charges incurred to obtain, keep possession of and preserve those goods.

P. Milobar: This also, of course, deals with the Livestock Lien Act. So there are provisions in this section around what happens if an animal is born while being subject to the lien. This covers off that as well.

I’m just trying to think of when that situation would come in. But I guess this is a provision that would pertain to you if you were leasing a field out for grazing or something of that nature, and someone did not pay their fees to you for the use. You’re hanging on to their livestock until they pay, and they start to have lamb season or calving season or whichever season it is.

Would that be covered off in this, that that person could still hang on that livestock reasonably, including the offspring, until such time as they can make arrangements?

Hon. S. Robinson: The member, I think, captures it, particularly with livestock. And 24(2)(c) certainly notes that calves, for example, would be a credit to the amount owing. But if there were expenses incurred in order to maintain the livestock, then that, of course, would go on the flip side of the ledger. So all of these expenses and credits need to be tracked until it can be resolved.

Clause 24 approved.

On clause 25.

P. Milobar: This seems to be more of an area, now, that we get into the requirements for duty for the lien holder to provide information as requested. I just want to clarify.

Anybody that feels they have an interest in what may be having a lien put against it has the ability, essentially, with this to request information from the lien holder. The lien holder would have ten days to reply with that information in terms of either values or moneys owed, work that was done resulting in the moneys owed, equipment or parts that were secured which resulted in the money owed. Is that a fair summarization of 25?

Hon. S. Robinson: There are a number of persons and their representatives that may use a lien holder’s registered contact information to demand more information. Those who have interest are typically the owner or other person with an interest in the goods, such as a lessee, a person who requested the services for the goods and a creditor or sheriff to assess the extent to which goods subject to a lien may be useful in any enforcement of a debt, such as a judgment enforcement proceeding.

Clause 25 approved.

On clause 26.

[4:50 p.m.]

P. Milobar: A lien holder in 25 must reply or comply with a demand for information within ten days after the lien holder receives the demand. I should have maybe asked this in 25, so we can just lump it in with 26. I’m assuming that’s ten business days, not ten calendar days, but we can get clarification on that. Again, not a huge sticking point, just more so that people understand what the rules of the game are.

The lien holder doesn’t…. Clause 26 deals with what happens when the lien holder doesn’t comply with the demand for information within that ten days. It appears that the only remedy for somebody seeking that information is to try to take the lien holder to court to get an order to make sure that that information gets forwarded.

Just to be clear, there’s nothing in this that says that by ignoring that, the person who is seeking the information…. Let’s say it was the person the lien was against. They don’t start to see a reduction in the lien amount or anything of that nature, the charge against their property, for failure to comply with the demand. It’s strictly that the remedy is to go to court and try to get the demand actioned through that process.

Hon. S. Robinson: The member is correct. You do have to go to court in order to get the information, and we’re talking about ten business days.

P. Milobar: In terms of the need to have to go to court to deal with this, does the minister or her staff have any sense of what, within B.C., the current timelines for filing something like this would take? Is it strictly to show up to the courthouse and file at the court? Or is it actually a more onerous process that’s envisioned with this clause?

Hon. S. Robinson: That’s outside the scope of the act. The act just provides a remedy for when it’s impossible or you’re not able to get the information that you need. There is a remedy, which is to go to court, and the courts will determine the speed at which it moves.

P. Milobar: Well, recognizing that our court systems are not 100 percent aligned, province to province, but similar, does the minister have any idea what the process in Saskatchewan currently is, in terms of provisions to seek court rulings around the demand for information or things of that nature?

[4:55 p.m.]

Hon. S. Robinson: This is consistent with the Uniform Liens Act that was enacted by Saskatchewan. At this point, we haven’t heard anything that suggests that this has been problematic.

P. Milobar: Sorry, maybe I wasn’t clear. I just wasn’t sure if the minister or her staff knew what the process in Saskatchewan is to trigger the petitioning of the court to get that demand for information processed. Is it just the equivalent of filing a small claims application, or is it that you’re going and waiting for a court time to actually make a presentation to a judge? Do they have any idea what the overall rigmarole is?

Hon. S. Robinson: It’s Supreme Court, which is Queen’s Bench in Saskatchewan. It’s the same process.

Clauses 26 to 28 inclusive approved.

On clause 29.

P. Milobar: Again, more for clarification. This is fairly straightforward, but it appears that by this clause the lien holder can demand a payment, set out in a schedule of the Personal Property Security Act, to reply for a demand for information. But once every six months, the owner can make a demand and receive that information for free.

I just want clarity. If there’s an individual that owes money that the lien is registered against, but there’s also a bank that has a loan and may require verification, do both parties get to have a demand every six months for free? Or is it strictly the actual owner of the equipment on title versus the others? In section 25, the people that can demand the information are “a creditor, a sheriff or an authorized representative” — things of that nature.

I’m trying to get a sense of: could there be multiple people all asking for a demand free of charge? Or is it just one person that gets…? Or one request? One requester gets it every six months, and everyone else could be subject to a demand for payment by the lien holder?

Hon. S. Robinson: It’s just the owner.

Clauses 29 to 32 inclusive approved.

On clause 33.

P. Milobar: This relates back to 32, with seizures by the bailiff. This enables them to seize without removing from the premises.

Again, could we get a better understanding of the rights of the bailiff, then, to come back and forth, if they’re not actually physically removing that — in terms of the person who the lien is against, this is obviously their premises — and the ability of the bailiff to not remove it but still be in charge of the goods.

Hon. S. Robinson: If I understand the member’s question, he’s looking for an example of what a seizure of goods by bailiff without removal from premises might look like. What came up for me was a herd of cattle, for example. The bailiff may not come and have the ability to physically move them to a different site.

[5:00 p.m.]

P. Milobar: Well, it’s like the minister read my mind on where I was going to go next in terms of goods actually qualifying as livestock as well, because obviously, this act covers off a pretty wide range of, manner of, asset.

I guess, on the livestock piece again, I’m just trying to get a better sense of the bailiff’s right to come and go. People working the land, people with livestock, get pretty sensitive about access points, the tracking in and out of weeds and things of that nature. This still, though, would give the bailiff that ability to come and go in terms of trying to figure out arrangements for something like a herd of livestock. To be able to properly action the orders that the bailiff is dealing with, the landowner would need to capitulate with those visits by the bailiff to make sure that they happen.

[S. Chandra Herbert in the chair.]

Hon. S. Robinson: I think I have some answer for the member about his specific question, but I think it’ll become clearer with the next section.

This is about seizure of goods by a bailiff without removal from premises. We’re talking about, for example, cattle. The options here reflect the manner in which a sheriff may seize goods under a writ of execution without removal. It’s a feature of the common law of judgment enforcement. In common law, a sheriff may seize without taking physical possession, by placing some tangible evidence of the seizure at the place of seizure, like a notice of seizure. It would be posted, for example, on fences and such.

The lien holder can sell the goods from this location, leaving to the buyer the arrangements for their removal should this be required. When we get to the next section, I believe there’s the opportunity to assign a bailee. I’m happy to answer the member’s question when we get to that section and can explain how the bailee would work in this instance of the cattle that we are talking about.

Clause 33 approved.

On clause 34.

P. Milobar: Well, I wasn’t going to ask questions on 34, but now I’m just intrigued about how a bailee would work with the cattle. So if the minister could provide the example she was referencing, that would be great.

Hon. S. Robinson: The bailiff can designate a bailee. I am now going to use that word as part of Scrabble. It’s a real word, so it’s really nice to see.

They require a signed undertaking to hold the goods in the bailee’s possession as the bailiff’s bailee and deliver the goods to the bailiff in accordance with the bailiff’s demands, such as the timing, method and location of delivery. So if a bailiff doesn’t know, for example, how to care for these animals, the bailee can be assigned to do that on behalf of the bailiff.

Clauses 34 to 36 inclusive approved.

On clause 37.

P. Milobar: I’ll acknowledge in advance that there may be an answer to this in either previous clauses or future clauses, but it all will tie together. This is about the disposition of goods by the lien holder.

I’m a lien holder. The amount of the lien is not paid. In 30 days, I have a default judgment, and 30 days later I can then start to liquidate what the lien is against, to try to have myself paid. That’s how I’m reading this. Is that correct, that essentially the core of this clause is that that’s the trigger that would enable you to start to sell off any livestock or equipment or anything like that that the lien may be against? You file, and you get a default judgment, and then 30 days later, you can start to sell.

[5:05 p.m.]

Hon. S. Robinson: What this clause says is if 30 days have passed after the date of default and the amount secured by a lien has not been paid, the lien holder may initiate the process to dispose of the goods by sale or lease under sections 37 and 38. This disposition process parallels the disposition process in part 5 of the PPSA.

P. Milobar: Previously, when I asked about the ten days, calendar or working, not a huge difference. I mean, it’s two weeks or ten actual days on a calendar. But when we start getting into 30 days, that’s either six weeks or 30 actual calendar days. Is this 30 Monday-to-Friday days, or is this a calendar month, basically?

Hon. S. Robinson: The 30 days refer to what the Interpretation Act has. It’s consistent with the Interpretation Act, and that dictates the actual number of days.

P. Milobar: Now for the question that may be in one of the various other sections. I’m assuming it is, but I haven’t found it yet. I probably glanced over it.

This gives the lien holder rights and the ability to trigger sales, and understandably so, or there’s not much point in having a lien. Where is the trigger, I guess, for the person who the lien is against to ensure that that lien is now removed? Obviously, they wouldn’t still own the equipment anyways. In this day and age of credit score tracking and things of that nature, I would think liens would start to pop up. It could affect their ability to borrow on future equipment or things of that nature.

Where is their remedy in this to ensure that that lien is removed and no longer tagged with their name?

Hon. S. Robinson: If we go back to clause 17(1), it says: “The lien holder identified in a registered financing statement must discharge the registration not later than one month after the date the amount secured by the lien is paid, unless before the expiry of that one-month period the registration lapses.”

Clauses 37 to 43 inclusive approved.

On clause 44.

P. Milobar: Again, this is more for information and just trying to get a better sense of the order of magnitude.

Does the minister have any insight or knowledge…? Obviously, going to a Supreme Court starts to get to be fairly significant in cost and everything else. One would assume that if you have a lien against you, you’re not going to be spending a lot of money to take something to a Supreme Court. Principle can be a funny thing sometimes. It can get very expensive for some people where they’re refusing to pay a repair bill for a principle more so than they don’t have the funds to do it.

Is there any threshold that needs to be met in terms of value to start trying to initiate Supreme Court rulings on liens? Or is it strictly up to the courts to decide whether or not they want to entertain what could be, potentially, very small dollar figures? In other words, is there a small claims option versus Supreme Court option through this bill?

[5:10 p.m.]

Hon. S. Robinson: There is no threshold, and there is no small claims court. This is the only remedy.

Clause 44 approved.

On clause 45.

Hon. S. Robinson: I move the amendments to sections 45 and 46 that are in possession of the Clerk.

[CLAUSE 45 (2), by deleting the text shown as struck out and adding the underlined text as shown:

(2) In a petition proceeding under section 45section 44, the petitioner

(a) may make a payment into court of the amount claimed, in writing by the lien holder, for the services provided by the lien holder, and

(b) must include the payment when filing the petition.]

[CLAUSE 45 (4), by deleting the text shown as struck out and adding the underlined text as shown:

(4) A notice of the payment served in accordance with subsection (2)subsection (3) must include the following information, in accordance with the regulations, if any:

(a) the amount of the payment;

(b) the form of the payment into court;

(c) any other prescribed information.]

[CLAUSE 45 (6), by deleting the text shown as struck out and adding the underlined text as shown:

(6) The charge is discharged if athe lien holder does not file, by one of the following dates, an application for an order for the payment out of court of the payment secured by the charge:

(a) the date that is 60 days after the date the lien holder was served in accordance with subsection (3);

(b) if applicable, the date set by the court under section 47 (2) (b) (i) [supervisory jurisdiction of court].]

The Chair: We’ll just take a short recess to ensure that the amendments can get out to everyone appropriate. The House will take a short recess.

The committee recessed from 5:11 p.m. to 5:13 p.m.

[S. Chandra Herbert in the chair.]

The Chair: We are on the proposed amendments to clause 45. I ask the minister to move the amendment.

On the amendments.

Hon. S. Robinson: I move the amendments to section 45 of the bill.

Perhaps I can explain, as well, for the House. The amendments to section 45 of the bill make non-substantive corrections to references to other provisions of the bill as well as a grammatical correction.

The amendment to 45(2) corrects a reference to section 45, that a petition proceeding may be initiated under section 44.

The amendment to section 45(4) corrects a reference to subsection (2), that a notice of payment into court must be served in accordance with subsection (3).

The amendment to section 45(6) makes a grammatical correction to the lien holder to signify this is the same lien holder referred to earlier in this section. The amendment to section 45(6)(b) corrects the reference to section 47(2)(b). The court’s authority to set a different filing date in relation to this provision is under 47(2)(b)(i).

The Chair: All right. I’m not seeing any questions on clause 45(2). I will ask that we hold a vote on that first one, and we’ll go through them in order.

Amendments approved.

Clause 45 as amended approved.

On clause 46.

[5:15 p.m.]

Hon. S. Robinson: I move the amendment to clause 46 that is in the possession of the Clerk.

[CLAUSE 46 (6), by deleting the text shown as struck out and adding the underlined text as shown:

(6) The charge is discharged if athe lien holder does not file, by one of the following dates, an application for an order for the payment out of court of the payment secured by the charge:

(a) the date that is 60 days after the date the lien holder was served in accordance with subsection (2)subsection (3);

(b) if applicable, the date set by the court under section 47 (2) (c)section 47 (2) (b) (ii).]

On the amendment.

The Chair: Seeing no questions, shall clause 46(6)….

Minister would you like to speak to it, please? Sorry. Apologies.

Hon. S. Robinson: I’d like to speak to it just so that all members understand what this amendment is.

The amendment to section 46 of the bill makes, again, non-substantive corrections to references to other provisions of the bill. The amendment to section 46(6) makes a grammatical correction to the lien holder to signify that this is the same lien holder referred to earlier in the section.

The amendment to section 46(6)(a) corrects the reference to subsection (2), that a notice of payment into court must be served in accordance with subsection (3).

The amendment to section 46(6)(b) corrects the reference to section 47(2)(c). The court’s authority to set a different filing date in relation to this provision is under 47(2)(b)(ii).

Amendment approved.

Clause 46 as amended approved.

Clauses 47 to 51 inclusive approved.

On clause 52.

P. Milobar: Both on 52 and 53, just looking for more clarification or understanding and detail around how this works with the interprovincial trade and filing of liens in terms of work being done on one side of the border or not.

If work is done…. I’m thinking more of equipment or vehicles and things of that nature in terms of cross-border. You break down in one province. You go home. You decide you’re not doing anything with your car. That’s fine. You don’t come back to pick it up. The lien holder in B.C. would have the full rights.

Does the reverse hold true? I’m assuming that if they’re in Alberta and you ditch your car there, you’re subject to the Alberta laws and not the other way around. So this is strictly for the benefit of British Columbian people doing work within British Columbia.

Hon. S. Robinson: The member is correct. It’s based on where the goods are.

Clause 52 approved.

On clause 53.

P. Milobar: Just to clarify, then. The liens registered outside of B.C. now, with this clause…. As I read through it, a person under the law of another province holds a lien on goods or services, holds a lien on the goods within the meaning of this act. But again, that’s…. The person from outside of another province holds a lien, files a lien in B.C. for work done in B.C., even though they may reside in a different province?

In other words, they have to file within British Columbia. They’re not filing in Alberta. Is that correct? Am I mixing this up? It seems that we’re highlighting what happens with cross-border, but it’s all about the protection of what actually happens within British Columbia versus outside of B.C.

[5:20 p.m.]

Hon. S. Robinson: Saskatchewan already has this legislation, and we are creating parallel legislation. If a person has a lien on goods for services under the law of, let’s say, Saskatchewan, which has parallel requirements to those in section 4 for creation of a lien under this act, the lien must be registered in the other province for the person to hold the lien under this act so that we’re consistent. I think that’s the whole intent. It’s that across the nation, we can support this kind of legislation and be consistent.

Clauses 53 to 86 inclusive approved.

On clause 87.

P. Milobar: I didn’t want the minister to think she was totally done.

Obviously, this is commencement. The act comes into force by regulation of the Lieutenant-Governor-in-Council. Does the minister have any idea when that is anticipated, when the minister thinks the OIC will come through? Should people start to be preparing for this change in the next week, 15 minutes after we’re done? When should they expect that this would actually be taken into force and effect?

Hon. S. Robinson: I want to take the opportunity to thank the member for his thoughtful questions and helping to understand what I think is a pretty thick read. I thought he asked some really excellent questions.

The act will be brought into force by regulation at a date that is, in fact, yet to be determined. We do need time to develop regulations under the act in consultation with the court services branch as well as the judiciary. In addition, changes to the personal property registry and amendments to the personal property security regulation are needed to enable commercial liens to be registered in the registry. So there’s still some work that needs to be done.

As well, B.C. registries and online services is being consulted on the timing of the registry changes, and we don’t expect commencement in this calendar year.

P. Milobar: Just to that, as much as all of us find plowing through this type of legislation so enthralling and interesting, it’s important, nonetheless. I make light of it, but if your livelihood depends on this or proper payment, it’s a pretty critical piece.

OICs, at the best of times, are hard to track down, whether they’ve been issued or not. There’s the Friday at six o’clock issuance. There’s the Mondays at 11 o’clock to catch the news cycle issuance. Is the intention of the minister to make sure that when this starts to come into force…? What is the plan to make sure…?

This is a pretty broad base of people that are going to be impacted by this coming into force. Is there a broader strategy laid out already to make sure that there’s a good awareness that things have changed and that they’re now in effect and these are the new processes? Maybe if the minister could just walk us through some of that.

[5:25 p.m.]

Hon. S. Robinson: The member asks, again, another really good question.

It’s really important that the public understand what this is, as well as all the professional associations that are impacted by this, as they can provide advice to their members as well, whether it’s a trucking association or the auto glass associations or just a huge variety of industry associations understanding what the changes are. So that work, for sure, is going to be undertaken as well.

While I have the floor, I’d really like to acknowledge Cynthia Callahan-Maureen for her heavy lifting, which she’s been doing for a number of years, in bringing us to this place. She has a wealth of knowledge, and I’ve been grateful for her advice as we’ve gone through this process.

Clause 87 approved.

Title approved.

Hon. S. Robinson: I move that the committee rise and report the bill complete with amendments.

Motion approved.

The committee rose at 5:26 p.m.

The House resumed; Mr. Speaker in the chair.

Reporting of Bills

BILL 11 — COMMERCIAL LIENS ACT

Bill 11, Commercial Liens Act, reported complete with amendments, to be considered at the next sitting of the House after today.

Hon. G. Heyman: I call continued second reading of Bill 14, Wildlife Amendment Act, 2022.

P. Milobar: If I could request a five-minute break just so we can get our speaker who had the floor previously back into the chamber. He wasn’t sure what time we’d end the House bill.

Mr. Speaker: The House will be in a short break.

The House recessed from 5:28 p.m. to 5:31 p.m.

[S. Chandra Herbert in the chair.]

Second Reading of Bills

BILL 14 — WILDLIFE
AMENDMENT ACT, 2022

(continued)

Deputy Speaker: All right, Members. We are here on the second reading debate, Bill 14, Wildlife Amendment Act.

I understand my colleague from Nechako Lakes has some more to say.

J. Rustad: Thank you, hon. Speaker. I appreciate the opportunity to carry on with a few comments.

Just before lunch, I had an opportunity to speak to Bill 14 and to go through some of the issues and some of the things that I see in the bill that are some challenges. I’ll be looking forward to the committee stage as we go into them. There are pretty significant issues associated with this bill.

Like I said, in principle, particularly the whole idea of the sheltering agreement…. These are things that First Nations have done historically that make sense to have in there. Traditional knowledge makes a tremendous amount of sense to have included. It’s a huge potential value to how we manage wildlife. But the secrecy is an issue, as well as these issues around not having to report, not having to follow what’s actually in the Wildlife Act. There are some issues associated with that.

It leads me to one last point that I did want to mention and I did want to talk about in the little bit of time I have left. In particular, I’m wondering about how we address one of the biggest issues that we have with First Nations in British Columbia, which is overlap.

What I mean by that is…. There are First Nations that have claims for territory. Many of those territories are sometimes disputed — particularly along the edges — and some of it in significant amounts. So it becomes an issue of which First Nation gets to be the host in an area that is disputed in terms of the traditional territory of a First Nation. That leads to a very significant potential problem.

I’ll give you an example in my riding. I’ve got many First Nations in my riding. One of the First Nations in there is the Yekooche. The Yekooche is in a treaty process. They’re going through, and they’re trying to do the best for their people and create opportunities. But much of their territory is disputed by its neighbours: the Lake Babine Nation, the Tl’azt’en, the Nadleh Whut’en, even the Nak’azdli Whut’en.

You’ve got this issue where…. If the Yekooche were to be a host nation for access for a hunt, for another nation or Indigenous people to come in and to hunt in an area, what happens when another nation says: “Well, wait a second. You shouldn’t have that authority”? How is that addressed within this bill?

If there was no overlap, if there was no dispute, it would make sense. It makes it simple. But where there is a dispute, how will that be managed? Is that going to be managed by government? Is that going to be managed by First Nations? Is there going to have to be some sort of structure that’s in place?

[5:35 p.m.]

This goes to many of the other types of agreements that British Columbia has — for example, a revenue-sharing agreement on forestry. Where there are overlapping claims, both nations get the benefits of the forestry. Will that be how it works with wildlife and wildlife management? It does pose a very significant problem that, quite frankly, the minister has not talked about in terms of this bill and in terms of how this bill will be enacted in British Columbia.

With that, when you look at the sheltering agreements, it also…. Look at it in terms of the sharing of Indigenous knowledge. You may have overlapping First Nations, as well, sharing knowledge in an area that may actually be in dispute with one another. How is that information shared and used, and how is the public to understand how this information is influencing changes that will come to the Wildlife Act? That’s why, when I look at the secrecy component associated with it — although I do understand that in certain circumstances, there is a need for that — there is a real challenge that comes up with this, especially with neighbouring nations.

I’ll just give you another example. Treaty 8 nations all have their separate territories within treaty 8, but treaty 8 allows them to be able to hunt anywhere within the treaty 8 nation, within the area by treaty 8. This means somebody from the Fort Nelson First Nation could be hunting in the McLeod Lake area and vice versa. How does that work if you’ve got a host nation that then has the right to hunt within all of treaty 8 but another nation within treaty 8 says: “No, no. We don’t want people coming up hunting in our territory”? How does that work in terms of the structure of this bill?

The bill itself, like I say, is trying to do some things that I think need to be done in British Columbia. But the way it’s been written, the way it’s been structured and organized is going to create potential real issues between nations and between non-Indigenous and Indigenous people in terms of the understanding and the process that is set up for it. There are a lot of points that need to be thought about. But that key piece there, I did want to get a chance to touch on, because I didn’t get a chance before lunch — this issue of overlapping claims, the territory treaty areas in particular.

I’ll just give you another example. There is quite a dispute with the Nisg̱a’a Nation and some of its neighbours that claim hunting rights within that territory. That territory is now within treaty, and there are all kinds of issues and overlap. What happens if one of those disputing nations decides they want to do a sheltering agreement to allow for a hunt within somebody else’s treaty territory? It’s still in dispute, and the courts haven’t decided on it, and the province hasn’t resolved how they’re going to manage it. So there are a lot of things that are in here as part of it.

Speaking of treaty, it’s actually interesting when you review the treaties that we do have in British Columbia — the modern treaties that we have, plus Nisg̱a’a associated with it. What is in this act actually goes quite a bit further than what has been allowed through treaty. I also have quite a few questions for the minister in terms of how the minister foresees the potential issues of existing treaties being more limiting than what this act enables and how that will be structured in terms of conflict.

Quite frankly, this act kind of pulls on a thread that needs to be pulled on, that needs to be dealt with. But there are a lot of issues here that make it very challenging, I think, in terms of the implementation of it. Lots of tough questions will come from this, but I’m happy to have had the chance to carry on and be able to provide those additional comments.

I’ll cede the floor to my colleagues.

A. Olsen: I’m pleased to stand and take my spot and speak to Bill 14, Wildlife Amendment Act, 2022.

I wanted to start today with…. This is an issue that, as I’ve talked about often, is near and dear to my heart. My Coast Salish name is SȾHENEP. I’m a W̱SÁNEĆ person from the village of WJOȽEȽP.

[5:40 p.m.]

My father’s name is TSAYWESUT. His name shows up in the Supreme Court of Canada, in the Morris-Olsen case. It’s a hunting case, and it’s a rights and title case that the Supreme Court of Canada found in favour of my father and Wayne Morris in protecting their hunting rights.

I have a particular experience. My family has a particular experience engaging with the Wildlife Act in this province. It hasn’t been a positive one. It’s not one that brings a lot of happiness to our family, frankly. It’s challenging as we see yet another generation of hunters getting arrested and picked up on hunting charges from our community and going through the very same process that my father went through. It seems, frankly, like Groundhog Day.

I think the Wildlife Act is an act that needs to be amended and looked at from the bottom to the top. What we’re doing here with this Wildlife Amendment Act is we’re tinkering.

My colleague earlier raised some interesting points that I might touch on here in a few minutes. First I’d just like to read something that was posted on the W̱SÁNEĆ Leadership Council website. It’s an interview with my uncle, J,SIṈTEN. J,SIṈTEN is a very powerful storyteller in W̱SÁNEĆ. You can find it online on their website, but I just wanted to read this into the record. I think it puts into context what we’re talking about in this bill.

We’re talking about the hunting rights of Indigenous people, the relationships between neighbouring Indigenous nations and Indigenous peoples, the agreements and the arrangements that have been put into place over the years between Indigenous nations that the provincial government, frankly, hasn’t recognized. That has caused a lot of our people to have to stand before the courts and hear some, frankly, pretty terrible and awful things that come from the mouths of the lawyers of this province.

I think it also highlights the need for our information to be maintained and protected in a way that Indigenous people want it to be maintained and protected. I’ve heard in this debate some concern around the secrecy of Indigenous information. I think that it’s an important place to start. There are some very important pieces of information that are not to be shared, but if we start from that place and we have an open dialogue, government-to-government dialogue, with Indigenous nations, I think we can overcome some of the perceived challenges of what that looks like to ensure the sensitivities are maintained.

J,SIṈTEN says this:

“The natural laws were originally given to our ancestors and forefathers by XÁLS, the Creator, when he walked on the land. He gave us our natural ways of living on our land. Our families have been here for thousands of years. Our parents were fluent in SENĆOŦEN.

“I’ve been working on this project with my sister ȻOSINIYE, Linda Elliott; my cousin SELILYE, Belinda Claxton; my nephew Kevin Paul; Lou Claxton; and, also, Eric Pelkey, who is working on parks and such things like that. I’ve been working on this for 41 years, and my sister has been working on this for 42 years.

“We have been working with 18 fluent SENĆOŦEN speakers, developing a curriculum for a tribal school. Part of this work includes the publications of the reef net technology, the SX̱OLE,” which I’ve talked about often in this House, “the salt water people and the calendar of the moons. Tim Montler came from Texas University to work with us on capturing the stories and language.

“We’ve been delving into stories about the origins of our people as far back as we can remember. We worked with those 18 fluent speakers until they were all gone. Lou Claxton is the only Elder left.

“We were recording the stories on cassette tapes, and my father developed the writing system for the W̱SÁNEĆ people.

“Our stories contain the history of how things came to be. They tell of our long presence on this land.

“There are some things in the language, sacred words we use to communicate with the natural world, that we can’t share.

[5:45 p.m.]

“What we can share are the stories that contain the history of how things came to be. They tell of our long presence on this land.

“For example, how the mountains were created.

“The Creator paddled over to the east side of the Tsawout village and found some shiny black stones on the beach. He threw one inland, and a mountain grew out of the stone.

“He filled his basket with more shiny black stones and went up to the top of this mountain. Then the people followed him up to that mountain, and there was a rock face cliff on the mountain where they went. Once there, he threw more shiny stones around him, and that’s how all the other mountains came to be.

“When he was finished with that work, then he grabbed some of our people, one by one, our ancestors, and he threw them out into the straits.

“As he tossed them out into the straits, he said: ‘QENT E TŦEN SĆÁLEĆE. You look after your relatives. Look after your relatives. Look after your relatives. QENT E TŦEN SĆÁLEĆE.’ He threw them out into the straits, and as they landed in the straits, they became those islands that are still there today.” The islands that I have the honour of representing in this Legislature. “It’s what they call the Gulf and the San Juan Islands.

“Those are our original ancestors that got changed by the Creator.

“These directions to look after our relatives are our laws. They’re the kinds of things we speak about with respect to the natural laws. For us, a belief and a law are the same.

“The names we have for different parts of the natural world are in relative terms. For instance, the SENĆOŦEN word for salmon is ‘older cousin,’ while the SENĆOŦEN word for deer, SMÍEŦ, is ‘grandson.’ The word for island means ‘relative of the deep.’ Our word for rock, boulder and mountain means ‘my gift.’ Our word for earth means ‘wish for the people.’

“The stories of how things came to be contain teachings from the Creator. These are our natural laws.”

Another example:

“How the deer came to be, SMÍEŦ.

“The story of how deer came takes place at what we now know as Fulford Harbour. There used to be a large village there.

“There was a young man who didn’t want to be changed from a person. He said: ‘If the Creator comes around here, I’m going to shoot him with this arrow and slice him with this knife,’ which was made of a mussel shell.

“The young man had been sent to be raised by his grandparents so he could learn the values of how to live.

“He didn’t listen to his grandparents, though. Whatever he was taught, he would say, ‘I already knew that,’ just like teenagers today, who have their own mind and want to do things their own way.

“The Creator heard this and paddled over to Fulford Harbour in his canoe. The Creator called the young man’s name and asked, ‘What are you working on today?’ to which the young man replied: ‘I’m making my own arrow points, so when the Creator comes, I’m going to kill him.’

“The Creator said: ‘Give that to me right now.’ It wasn’t in a gentle way. He suspended the two arrows in front of the young man’s face, and that’s when the young man realized who he was talking to, because not everyone can do that.

“The Creator said: ‘It’s wrong to kill anything just for the sake of killing. Now you’ll be the hunted one. I will give you big ears so you can listen.’ With that, the Creator shoved the arrows down the young man, and they became the deer legs. After that, the deer tried to run away, but the creator said: ‘Wait.’ He called him back and gave him the horns.

“So when we speak of deer, we are reminded of the law to listen to the teachings regarding killing. The story and the teachings give us the laws that tell us how to behave when we go hunting for food.

“Before you go out, you prepare. We prepare. We fast and pray. You wash yourself in a cold stream with certain plants. You sacrifice yourself a bit, because you’re going to eat him, grandson, today.

“We say a prayer. ‘Grandson, cross my path today. Take pity on us so we can feed ourselves and our families.’ The prayer works. I’ve used it myself, and it works.

[5:50 p.m.]

“It’s a natural law and how we should live and interact with the animals. We have to respect them. It’s not a sport. It’s for survival. When our people kill the deer, we hold up the blood and thank the Creator. We take the entrails and find a place that a deer would like to sleep, with its back along a tree, for example, and we bury the innards there.

“We use all of the deer — the meat to eat. We make clothing and rattles, and whatever is not used is to be buried and not left laying around.

“There are so many stories. I’ll tell you another one about ĆIYE,” the Steller’s jay. “ĆIYE was a hard-working lady. One day she was filling her basket with blueberries. ĆIYE was picking so much, her baskets were getting heavy, and her hands were getting blue. She was planning on making cakes with the berries, where you squash them and put them out in the sun so you can eat them later. ĆIYE was so grateful for the abundance of blueberries, she prayed in thanks.

“The Creator then appeared as a human, and he said to her: ‘Hard work is good. Ambition is good. Gratitude is good. Thinking of your future is good. I want you to be remembered, so I will make you the colour of your hands.’ The Creator then turned ĆIYE into the Steller’s jay. To this day, she still says her name, ‘ĆIYE, ĆIYE.’

“This story and the others teach us the way of living in the natural world. These are still our relatives. They are our stories, our way of life.

“This was what was interrupted. Our people lived in peace and harmony with nature, in respect for the land. We even have stories of the wind. We are sharing them so people know them. We have sacred names so W̱SÁNEĆ people can interact with nature.

“We were born into these beliefs, the stories of the sacred times when things could be changed. The Creator hasn’t gone away just because Europeans live here too. What we want is for our people to understand that our relationship with the natural world is not monetary; it’s sacred. We want people to respect that.”

That’s why we have this story, the story of when people forgot to follow the natural laws.

“The Creator brought a flood to the whole world. Our people lived through it and experienced it and knew it was coming. We prepared a long cedar rope. We were told to gather…our possessions and put them in the canoes. The tide started rising, and it kept rising all the way to the top of ȽÁU,WELṈEW̱ mountain.

“Our people went in our canoes. We tied our long cedar rope to an arbutus tree at the top of the mountain, and we tied our canoes together, side by side. The tide kept rising, and the mountain went underwater, and we were afraid. We were praying to survive, when, finally, a raven landed on the head of the canoe. At the time, our canoes had a wolf head on the front.

“The raven had a stick in its beak, and someone said: ‘I think he’s trying to tell us something.’ We could see a mountaintop emerge in the distance. The water was going down. It kept going down, so we untied the rope and thanked the tree, and to this day, we don’t burn arbutus trees in our fires. We gathered that long rope and gave our thanks for surviving.

“There was a lightning bolt that went into a cave, which had a message for an Elder: ‘You won’t be punished by flood again. Next time it’s fire.’ This is why we are so determined. This is why we are called the people of the emerging land, and this happened 10,000 years ago or more.

“I believe the B.C. fires are just the beginning. I see what’s happening in Australia, and that’s what I think of, because the people have forgotten how to live on the land.

“Our original law says that what you do in life will return to you. If you do good when you are young, it will come back to you when you are old. If you do wrong, it comes back to you or your loved ones.”

Those are the words of my uncle J,SIṈTEN.

I think that as we debate and have this conversation about the Wildlife Amendment Act, Bill 14, and we’re talking about the wisdom that Indigenous people can share with us all in this House, with all British Columbians, it’s important that we do it with sensitivity. It’s important that we do it with the respect that it deserves.

[5:55 p.m.]

I knew these stories. Even I went to the Saanich website in the hopes to find them written down in a way that could be delivered from our Elders, because I didn’t want to disrespect these teachings. I wanted to be able to find a way to share these teachings about killing, which is what this Wildlife Amendment Act is ultimately about — everybody’s right to kill wildlife — and the relationships that we have with the natural world and how we are to relate to those animals whose lives we are taking.

We received a lot of emails, and we hear a lot about people and their rights just to kill animals. I think it would do us well to understand the story of SMÍEŦ and the teaching that our youth and the W̱SÁNEĆ people have around killing unnecessarily, killing for sport, killing respectfully.

I remember reading a story written by Diamond Jenness, who was, several decades ago, one of those first anthropologists that came through our territory. He talked, in his story, about the great effort that the W̱SÁNEĆ people went through when their family members went out hunting. The entire family would fast. If the family ate, the deer would know. They would know that the sacrifice that my uncle J,SIṈTEN talked about wasn’t there, that the family obviously didn’t need this meat. It was not hungry enough.

Those are strong beliefs. They’re strong beliefs about how to live on the land, but how to live with nature, how to live in an environment as part of it rather than as being this domineering force that can do as it pleases.

I just have a couple of more comments to make — a comment specific to some of the other things that I’ve heard so far in this debate. I recognize the issues around secrecy and the impacts that can have. I think we’ve seen that here over the last number of years, the impact that can have when Indigenous nations, Indigenous rights and the rights of other British Columbians in hunting come together and create conflict.

I think one of the things that we, in this role as the provincial government, have to do is find ways to be able to manage those relationships as an intermediary. We have to do it in a respectful and a responsible way. We have to be able to articulate why some things cannot be shared and that no offence should be taken.

There are things that I don’t know about families that live right next to me, and I accept that. There are places that they would go, sacred places they would go to and engage in their families’ private ceremonies that I know enough not to ask about. But we’re not raised with those teachings now. We’re not given that information now. We are offended when a family says to us: “It’s not your information to have. It’s not for you to know. No offence. You’re better off not knowing that information.”

That’s not the way our modern world works, as we have seen, as we’ve all been flooded with dozens and dozens of emails about hunting in this province. So secrecy is an issue. But it’s an issue that must be managed by the provincial government as an intermediary in these conversations.

I’d also like to talk a little bit about the overlap issue that was raised earlier. This is largely a creation of the B.C. treaty process. Indigenous people…. It would be wrong to suggest that there was not conflict on the land. There was definitely conflict on the land. There was definitely conflict between Indigenous peoples. But since time immemorial, there were mechanisms that were put into place to deal with those. Those have largely been replaced by an Indian Act.

We now look to Crown governments to have the mediation, the negotiation tools to solve those problems. We find, actually, that they’re not doing a great job of solving them. For the last 20, 25 years, in this province, we’ve had an overlap problem. It’s been used as an excuse for why we should have inaction.

[6:00 p.m.]

It’s been used by this government, the Crown governments, as a way to create mischief amongst Indigenous nations, to turn us against each other, against ourselves, families against families. The territorial overlap was created when the B.C. treaty process said: “Submit your maps.” It was based on a way of negotiating that we do now, which is: ask for as much as you possibly can think of, because over the negotiation, it will be whittled down. It will be whittled down. What that has done is to create an incredible conflict on the land base with Indigenous people.

These sheltering agreements are an example of how Indigenous nations have found ways, in some instances, to come together and to find a way so that they’re relatives. It’s not as clear-cut as an Indian Act reserve. It’s not as clear-cut as a membership with this village or with that village. We have relatives all over this province. We have connections all over this province.

I think it’s an important piece that was raised by our colleague here from the B.C. Liberals. Certainly, there are governance issues that we all face together in this province now, as a result of many, many decades of this Crown government not engaging with Indigenous peoples in the way that they should have. We’ve now inherited that mess, and it will be up to us to find a way to responsibly fix it.

With that, I look forward to the rest of the second reading speeches and debate. I’ll take my seat and look forward to the committee stage of this bill.

HÍSW̱ḴE SIÁM. Thank you.

B. Bailey: Thank you to the member opposite for his thoughtful, engaging and informative comments. There aren’t that many times in the House when one can say they truly enjoyed every moment, and it was one of those. Thank you very much for that.

I rise to speak to the Wildlife Amendment Act, Bill 14. Dating back almost 200 years, when B.C. was still a Crown colony, the Wildlife Act is the foundational statute for managing wildlife in the province. While previous changes to the act reflected the changing nature of wildlife management in response to social values, common law, scientific advancement and habitat concerns, the legislation has not been amended to address Indigenous interests since 1966. That’s before I was born, Mr. Speaker. I can attest to that being quite a long time ago.

These changes that are in this amendment complement the non-derogation provision recently added to the Interpretation Act last fall and ensure that the Wildlife Act does not negatively impact Aboriginal constitutional and treaty rights. Government’s constitutional obligation to give priority to First Nations to hunt for food, social and ceremonial purposes will be recognized in this act.

The proposed amendments also support the province’s commitment to the full adoption and implementation of the United Nations declaration on the rights of Indigenous peoples, or UNDRIP, and are early steps designed to complement the Declaration Act. The Declaration Act requires government to work in consultation and in cooperation with Indigenous nations to bring provincial laws into alignment with the United Nations declaration on the rights of Indigenous peoples over time.

These amendments were co-developed with members of several First Nations in B.C. and, as such, represent how policy work can be done together with nations. Consultation on the policy intentions for the legislative amendments occurred with all First Nation governments and Indigenous leadership organizations in the province.

Importantly, the legislative changes support a stronger role for Indigenous peoples in implementation of the Wildlife Act. It respects Indigenous knowledge and knowledge holders and will ensure that Wildlife Act decision-makers will use not only western science in their decisions but also Indigenous knowledge.

In many instances, by using multiple lines of evidence or information generated through different knowledge systems, decision uncertainty is reduced, and decisions are more durable over time. Western science benefits from drawing on First Nations knowledge-keepers and, when done right, should also be a positive contribution back to the community.

We’ve heard stories, over time, of misuse of Indigenous knowledge. It’s important that western scientists do not come into community and access knowledge, leaving to enhance their own careers and leaving nothing behind.

[6:05 p.m.]

I’d like to share a story I recently read about when western science and Indigenous knowledge came together for the benefit of community. It’s not wildlife, but it’s close.

“Science holds its own objectivity in very high regard, but Anne Salomon, who’s an associate professor at Simon Fraser University, says scientists who believe in their own objectivity are fooling themselves. Scientists are operating from an unavoidable position of bias, from the way they’re trained, to their values and beliefs, to the ways they formulate questions and gather data, she points out. ‘What we can do as scientists is still get to an approximation of the truth we’re interested in, in the least biased way possible.’

“Salomon, regarded as one of the foremost practitioners of community-involved ecology research in Canada, learned her approach early at the Bamfield Marine Sciences Centre. All ecological research projects at Bamfield, no matter how small, are brought to the Huu-ay-aht First Nation for approval if they involve Huu-ay-aht lands.

“Salomon thought that was just how things were done, so when she arrived in Alaska, she approached the local Sugpiaq villages to ask for their input into her surveying the creatures that live between low and high tide. What they told her formed the basis of her research. ‘It was in talking with the Chief and in talking with the people that they told me about the decline in this particular chiton that led to all this work,’ she says. The community wanted to know why. ‘That’s such an interesting question ecologically, and also in terms of conservation.’

“The species in decline, the leather chiton, turned out to be a keystone species in that ecosystem, a species whose presence or absence has knock-on effects for the entire food web. In picking up on that trend, the Sugpiaq had noticed something that resource managers had completely missed, and they noticed it because the community has an interest in the species as a resource, and because it’s steps from their front doors.

“That’s often true of Indigenous communities, Salomon says, and that wellspring of local knowledge and curiosity draws her back to them time and time again. ‘Theirs is a deeply marginalized voice,’ she says, ‘when in reality it should be revered.’”

When western science and Indigenous knowledge are combined, it benefits the species in question. Bill 14 represents steps in the right direction to address this. Statutory decision-makers will be required to turn their minds to Indigenous knowledge, and will be provided guidance on how to consider it in their decisions through a policies and procedures manual in co-development with the First Nations–B.C. Wildlife Forum. This will improve consistency of application across wildlife management decisions and facilitate greater reconciliation between Indigenous knowledge holders and other forms of knowledge, particularly western science.

As the member across highlighted earlier, the bill also includes sheltering amendments. I’ll just take a moment to explore this section and its implications. First of all, what is sheltering? What do we mean by it, and what is protocol hunting? Are they different from each other? Definitions of “sheltering” and “protocol hunting” vary, but for the purposes of this amendment, the following definitions apply.

Sheltering is the practice of a host First Nation permitting, under the host’s Aboriginal right to harvest for food, social or ceremonial, FSC, purposes, a member or members of a guest First Nation to harvest wildlife within the host’s traditional territory or treaty harvest area under that host nation’s FSC rights. Permission is most often informal — a phone call to the band office, a letter from the host First Nation — but typically comes with conditions. Example: who may hunt what species, when, where and by what means.

Some First Nations have formal agreements called protocol hunting agreements with one another, which describe the conditions in which sheltering is permitted by a host. Some First Nations do not wish to host others under any conditions. The sheltering policy and procedure will outline how the province will work with individual nations to enable sheltering within their traditional territory if those nations so choose, and to ensure that the conservation officer service is enforcing the wishes of the respective nation. If the host nation invited the guest harvester, the guest is not harassed while hunting under the host nation’s FSC harvest rights.

Alternately, if the nation did not invite the guest and does not wish to have the guest hunter hunting within their territory, the conservation officer service can enforce that no guest harvesting be permitted. The term “protocol hunting” is sometimes used synonymously with sheltering, as in the intentions paper and engagement for this amendment. “Sheltering” is the term used by the Canadian courts, and as such, has been adopted for use by this amendment.

[6:10 p.m.]

There’s also a question that might arise about whether the sheltering amendments reduced harvesting opportunities for resident and non-resident hunters.

Sheltering is already taking place within B.C., and agreements on sheltering would improve certainty, as they would provide the opportunity for better collaboration on data collection and sharing. Better data will improve the province’s understanding of wildlife harvest implications from sheltering and, as a result, strengthen policy that relies on wildlife harvest data, for example, harvest allocation.

Given that sheltering already occurs in B.C., it’s unlikely that formalizing agreements will reduce harvest opportunities for resident and non-resident hunters. It’ll mostly be a question as to why there is not a non-derogation clause or language in Bill 14. Although a non-derogation clause was proposed in the policy and intentions paper co-drafted with the forum, with the passage of the Interpretation Act non-derogation clause by the Legislature in fall 2021, the inclusion of a non-derogation clause in the Wildlife Act was no longer necessary.

Wildlife is of vital importance to Indigenous peoples, but for too long their voices were not being heard in how wildlife is being managed. Bill 14 takes steps to address this.

The legislation is being amended to integrate Indigenous perspectives as we move towards better co-management of wildlife and towards more comprehensive changes to bring the Wildlife Act into alignment with DRIPA, as committed to in section 3 of the Declaration on the Rights of Indigenous Peoples Act.

T. Shypitka: It’s my honour to speak today on Bill 14, Wildlife Amendment Act.

Any time I can stand up in the House and say my two bits’ worth of stuff that I have on wildlife and wildlife management in the province is a good day for not only myself but the constituents of Kootenay East. It is probably, perhaps, one of my top priorities in my riding. Access to health care would be one of them. The second one would be wildlife issues, land access issues, those kinds of things.

When I can speak about the diversity and the size of this province and everything that goes inside it, our greatest natural resource is our wildlife. We put values on our timber, our coal, oil and gas, but we really don’t put any kind of value on wildlife. It’s for those reasons I’ve spoken many times in this House on wildlife management, ecosystem restoration, habitat protection. It’s critically important.

I see some strides being made. In 2018, the province came out with a pretty good document called Together for Wildlife. It said all the right things. There are about 16 pages here. About half of them are pictures of some really cool animals. You’ve got Dall sheep, and you’ve got elk and caribou and all those great creatures, and it’s a start. It’s a starting point. But we’re far from accomplishing our goals.

This isn’t a partisan issue. I’ve said this many, many times before. Our wildlife has been mismanaged, I believe, in my opinion, for decades — probably close to 40 years or so. This document speaks to it. Like I said, I agree pretty much with all of it. Some of the things that I’ve said in the House are almost mirror images of what this document has come out with.

However, in this document, there are no real timelines. There is no real accountability to when this is going to get done and how it’s going to get done. It states pretty much the obvious. For an example, I’ll just read a little piece of it. It ties into Bill 14, because this is what we’re talking about right now, wildlife management.

In the Together for Wildlife document, it says: “Together for Wildlife is the new provincial strategy to improve wildlife and habitat stewardship across British Columbia. The Together for Wildlife strategy includes additional funding, proactive objectives, and improved data and knowledge, all supported by new policy, strong partnerships and dedicated resources.”

It goes on in the document here, outlining five goals and 24 action plans.

The first goal is: “All British Columbians have a voice in wildlife stewardship.”

Goal 2: “Data information and knowledge drive better decisions.”

[6:15 p.m.]

Goal 3: “Stewardship actions achieve tangible benefits for wildlife….”

Goal 4: “Accountability and transparency build trust and confidence.”

And goal 5: “Collaboration advances reconciliation with Indigenous governments.”

I couldn’t agree more with those five goals.

To kind of set the tone, I’ll read a quote from myself, actually — what I said the last time I was in this House. What I said was:

“…I want to celebrate all of our strong stewards of the land across the province. I’m talking about our regional biologists, our hunters, trappers, guide-outfitters and wildlife enthusiasts who all want the exact same thing, and that is to restore our wildlife populations and habitat to where they need to be in order to enjoy the beauty and recreation that we all deserve.

“In a concerted effort, these fine stewards will work with government and First Nations to make decisions that are specific to their regions of this massively diverse province in a way that is science-based and culturally practised for hundreds of years, if not thousands.”

This is almost a mirror image of what the Together for Wildlife document says. There’s a big buy-in, and it’s becoming more and more apparent across the province that this is critical. I could even lean to the new coalition that just came to be about a year ago: the B.C. Fish, Wildlife and Habitat Coalition. It’s a large group that, really, would never sit in a room together, ever.

[Mr. Speaker in the chair.]

We’re talking everything from trappers to guide-outfitters to special interest groups, everything from the Sierra Club to trapping. As I said before, it’s a little humorous. But it’s not humorous; it’s the truth. Some of these groups have never sat in the same room together, ever. But they are now, because nothing brings people together more than a crisis, and we are in a crisis right now.

That’s why this bill is super important to myself, as one that really wants to see our greatest natural resource not be diminished, as it has been. And we are in a crisis mode right now. I have…. The general conception of this bill I agree with 100 percent. First Nation knowledge needs to be incorporated into our decision-making. First Nation involvement is a critical piece to wildlife management. That’s what this bill talks about.

Sheltering agreements. We have host nations that will host guests that will come in, and with their traditional knowledge, they will do hunting, and they will share the land with those other nations. That’s great, but we really need to understand behind the lines, behind the scenes, what is happening on the land base.

There are lots of questions in this bill that need to be answered. I look forward to committee stage and drilling deeper into this, because they don’t identify the grey issues that this bill represents. For example, in my riding of Kootenay East, First Nation territorial boundaries are not clearly defined.

I’ve been an MLA for five years. We have the Ktunaxa Nation. We have the Shuswap. I could not tell you where one is and where the other one isn’t. There’s a lot of overlap, and quite honestly, there’s dispute right now on where those territorial boundaries are. So it begs the question: who would be the host nation? Who would be the guest nation? What traditional knowledge would be shared?

And what is that traditional knowledge? Because that knowledge and that hunting activity are going to have an impact on the land base. That impact on the land base, in turn, will affect other hunters, guide-outfitters, trappers to what regulations and legislation will follow it on how they access hunting and harvesting.

[6:20 p.m.]

Which hunting and wildlife practice will need to be respected? Will these hunting practices be in alignment with the Wildlife Act and regulations that are, in part, constituted by other First Nations?

What I mean by that is in this bill…. I think it’s section 3 somewhere here.

I’ll have an eye on the time, Mr. Speaker. I know.

I had one that was all highlighted here, but I don’t have that anymore.

Anyways, in the bill — I think it’s section 3, somewhere — it states that hunting and activities with First Nations may be inside the Wildlife Act or not. What does that mean?

Interjection.

T. Shypitka: What’s that? Oh, okay. I see members on the other side are getting antsy to get out.

Interjection.

T. Shypitka: Oh, right. Okay. Sorry.

Yes, noting the hour, I wish to hold my place, and I adjourn the debate.

T. Shypitka moved adjournment of debate.

Motion approved.

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

Hon. G. Heyman moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 1:30 p.m. tomorrow.

The House adjourned at 6:21 p.m.