Orders of the Day

Hon. R. Kahlon: I call Motion 38 on the order paper.

Government Motions on Notice

MOTION 38 — MEMBERSHIP CHANGE TO
AGRICULTURE, FISH AND FOOD COMMITTEE

Hon. R. Kahlon: I move Motion 38 with respect to membership on the Select Standing Committee on Agriculture, Fish and Food, standing in my name on the order paper.

[That Adam Olsen be removed as a member of the Select Standing Committee on Agriculture, Fish and Food.]

Mr. Speaker: The question is the adoption of the motion.

Motion approved.

Hon. R. Kahlon: In the main chamber, I call second reading on Bill 17, Family Law Act.

In committee room A, I call continued debate on the Committee of Supply for the Ministry of Education and Child Care. When that completes, the Ministry of Forests will begin Committee of Supply in committee room A.

In committee room C, I call continued debate on Committee of Supply for the Ministry of Emergency Management and Climate Readiness. When that completes, the Ministry of Environment and Climate Change Strategy will begin Committee of Supply in committee room C.

[2:45 p.m.]

[S. Chandra Herbert in the chair.]

Deputy Speaker: All right, Members. Let’s get this debate underway, the second reading of Family Law Amend­ment Act, 2023.

Personal Statements

WITHDRAWAL OF COMMENTS
MADE IN THE HOUSE

N. Simons: Earlier today I used the “L” word, and while you, Mr. Speaker, didn’t hear it, I did. I withdraw, and I apologize.

Deputy Speaker: Thank you, Member.

Second Reading of Bills

BILL 17 — FAMILY LAW
AMENDMENT ACT, 2023

Hon. N. Sharma: I move that the bill now be read a second time.

The Family Law Amendment Act, 2023, amends provisions with part 5, property division, and part 6, pension division, of the Family Law Act. These amendments represent phase 1 of a multiphase project to modernize the act.

Interjections.

Deputy Speaker: Members, if we could have a little quiet in the chamber, please.

Hon. N. Sharma: The act came into force ten years ago, and there have been many societal changes and developments in case law since then. My ministry is reviewing its provisions to ensure that they continue to meet the needs of families in British Columbia. The modernization project is occurring in phases, because the act is large and covers many areas that impact families. A phased approach will better allow the public to meaningfully participate in, and ministry staff to complete, the review.

The part 5 amendments clarify two important property division issues. The first is the division of spouses’ excluded property that is transferred between spouses during their relationship. Generally, excluded property is not divided between spouses when they separate, but the act allows for division in certain circumstances. There has been a divergence in case law about whether excluded property that is transferred between spouses should be divided and whether a common law evidentiary rule, the presumption of advancement, applies. This divergence has resulted in an uncertainty that has negatively affected out-of-court settlements and led to a significant amount of litigation.

The amendment clarifies that the presumption of advancement does not apply to the division of property under part 5 and that excluded property remains excluded, to be divided only as provided for in the act. The amendments make corresponding changes to expand the factors that the courts can consider when dividing excluded property. These changes allow the court to divide excluded property in a more predictable way that should encourage out-of-court settlements and reduce litigation.

The second issue addresses what happens to companion animals, known as family pets, when spouses separate. This is an example of modernizing the act to reflect changes in society and how people’s relationship with their pets has evolved over time. There are currently six American states that have recently established similar legislation, but B.C. would be the first Canadian jurisdiction.

The amendments regarding pets create a definition of a “companion animal” and clarify that spouses can make agreements about whether one of them will own or possess the pet or whether it will be shared, if they both want to retain a relationship with the companion animal. Established factors the court must consider when making sole ownership orders about a companion animal include the history of risk of family violence or animal cruelty, the relationship a child has with the animal, and who has cared for the pet and is willing and able to continue to care for it.

Importantly, these amendments authorize the B.C. Provincial Court and Supreme Court to make orders related to companion animals, to allow spouses to choose the court they wish to use. These amendments were developed based on written and survey feedback from a public consultation as well as discussions with an advisory group of family law practitioners and advocates.

The part 6, pension division, amendments are based on recommendations from a report published by the British Columbia Law Institute in March 2021. The changes seek to ensure that the pension division provisions in the act remain up to date and interact appropriately with pensions, administration practices and actuarial sciences.

[2:50 p.m.]

Some of the notable additions clarify that locked-in retirement accounts, or LIRAs, and life income funds are divided under part 6 of the act rather than part 5, and how annuities are divided when spouses separate.

M. de Jong: Thanks to the Attorney for her remarks on second reading with regard to Bill 17.

I think it’s fair to say that the area of the law that we are dealing with here is applicable to people who are generally experiencing one of the most emotional times in their life. I dare say, in this day and age, there’s probably no one who either hasn’t directly themselves experienced the breakdown in a family relationship or doesn’t know someone who has.

So many people are able to view this area of the law through the lens of personal experience, and some of us are able to view it not just through that lens but through a professional lens of having been involved in, sadly, the litigation that sometimes follows to settle the matters that require settlement when that relationship breaks down.

I say that because, to a certain extent, people might look at a bill like this and see the inclusion of new terminology like companion animals. I suppose the layperson’s equivalent would be the word “pets.” Yet language in these instruments is so important that the definition of what a companion animal is and what it isn’t becomes significant. We’ll spend a little bit of time in committee just exploring and verifying what is included and what happens when there is an overlap between, for example, a farm animal and a companion animal or a family pet.

These things take on…. Most people don’t have to have it explained to them the emotional attachment that exists between a family and members of a family and their family pet. That is amplified tenfold when the family unit breaks apart and decisions have to be made, obviously, about property, custody and care for children. I have to say — based on some experience, professional experience — it’s sometimes the pet that becomes the triggering point for a more prolonged dispute between the parties that has negative consequences for everyone.

There is a theme running through the legislation that I think is an important one. I’m grateful to the Attorney General and her staff for the opportunity we had earlier today to go through some of the technical aspects of the bill. But that theme is to try and address an uncertainty that has arisen through some of the litigation that has taken place in interpreting the existing part 5 and part 6 division provisions of the act.

In the context of a relationship breakdown, a marriage or marriage-like relationship breakdown, uncertainty can be devastatingly consequential. If we accept, as I do and used to say to people that I was assisting, when a relationship breaks down, the objective is to ensure that there is a fair settlement between the parties and to let them get on with their lives. That’s certainly to the benefit of adult partners and certainly to the benefit of any children that might be involved in the breakdown in that relationship.

So uncertainty, or the opposite of that, creating certainty for the parties involved in a breakdown is important. Creating certainty for the professionals — sometimes lawyers, sometimes counsellors — who are advising those parties is important.

[2:55 p.m.]

Quite frankly, to the extent that this branch of government, the legislative branch, can create certainty for the judicial branch of government…. I like saying “judicial branch of government” because it drives judges crazy when they hear…. Yet they are. They are the third branch of governing our society, and creating a measure of certainty for them as it relates to the law they are charged with interpreting and applying, is, at the end of the day, also helpful.

We’ll talk a little bit in committee stage about the provisions and how they’ll operate and the considerations. And there’s an interesting facet, by the way, to this companion animal/pet component that I’m sure the Attorney will elaborate on in the committee stage, which allows for the parties in a broken relationship to come to an agreement. And I think the terms that are used — to jointly own a pet, to share possession…. I guess that means Fluffy spends one week with one party and another week with another party.

But that can be very important for a family, especially at a time when…. Or to give exclusive ownership to one of the parties…. The parties to a relationship can agree to those terms, but significantly, the act makes clear that a court cannot do that. To use the term, the court is not, under this legislation, permitted to grant joint custody of Fluffy. I’ll ask the Attorney that when we get to the committee stage.

I understand, I think, the legal rationale behind that, and it’s one that some people may not like to hear, and that is: the law deals with Fluffy as property. And under the existing laws that we have, the division of that property must be final. But it also should act or could act as an incentive for people to come to their own agreement around how to deal with a family pet.

In fact, that theme, we might as well say it here, whether it is in the context of a prenuptial agreement, a cohabitation agreement…. I know it’s really difficult to say to people who have just fallen in love and are planning their future to have them turn their mind to what might take place if it all doesn’t work out. Yet there are certain real advantages to doing that, and here is yet another piece of the menu that could be addressed in that prenuptial or cohabitation agreement, and indeed in a separation agreement if the relationship doesn’t work out.

The other area…. And I don’t want to diminish or be flippant about, in any way, the issue around pets/companion animals, because, emotionally, that can be of far more consequence than significant amounts of money, in my experience, in terms of assisting the parties in getting on with their lives and finding a settlement.

The amendments in this piece of legislation that deal with property and a situation…. When we come to the committee stage…. I’ve already alerted the Attorney’s staff to the fact that I’m going to ask the Attorney, when we are dealing with clauses 3 and 4, to come armed with some practical examples, because to have this conversation in any kind of an abstract way is incomprehensible for not just the average person but for virtually anyone.

[3:00 p.m.]

The common scenario, of course, is the couple that comes together in a marriage or marriage-like relationship that is subsequently captured by the property division provisions of part 5 or 6 of the act, where one of the parties has brought a piece of real estate, perhaps a family home, into the relationship and then, subsequently, chooses to place a partner on that title. That triggers or has triggered a whole series of presumptions.

The one that is referred to here in the act is the presumption of advancement, an old common-law principle that can still have some very real implications at the time a relationship breaks down, because the courts have dealt with that scenario. We’ll get more specific in committee stage. The courts have dealt with it differently.

In an age when, whether we’re talking about — be careful what terms you use — a first-time relationship, which may or may not involve people at a younger time in their life, versus relationships that might be second or third marriages or the equivalent of second or third marriages that happen far later in life. The older one gets, presumably, the more assets and more property people may have accumulated. Having clarity and certainty around what the rules would be upon dissolution or breakdown in the relationship is clear.

To the extent that there is uncertainty in a pretty fundamental area of property division law, the act, with the help of the agency referred to by the minister, is seeking to address that and create more certainty. I use that term. We’re creating more certainty. We are not, in my view, creating absolute certainty. Because in the sections of the legislation, clause 6, there’s an expansion of the range of considerations that a court can bring. But these are still subjective matters.

One likes to think, and I always took the view, that in these situations, the best service lawyers could render was to provide their clients with sound advice that led to a settlement that didn’t require litigation. But that’s not always the case. That does require reasonableness on the part of both parties. But for the lawyers that might worry that there won’t be anything to argue about, clause 6 still leaves some room for the clever advocacy skills of those who do find themselves before the courts on behalf of their clients, which then takes me to the provisions dealing with pensions.

It’s interesting. I’ll make this confession, although I’m a little bit embarrassed. Given my age, I probably should have known what a life income fund and a LIRA are. As the years go by, that becomes far more relevant to my consideration. But I didn’t until a friend of mine drew it to my attention, and not in the context of this legislation but because of some research and work that they were undertaking.

Pets are important. The parts of this bill that deal with the notion of the advancement are important. Arguably, from a fiscal point of view, this could be the most important provision of all, because ensuring that there is clarity around how the pension asset is divided between parties is fundamentally important. As I understand, the lack of clarity or the confusion that has arisen relating to LIFs, LIRAs and annuities has caused a lot of consternation.

[3:05 p.m.]

The fact that different courts at different times have chosen to divide these assets either pursuant to the rules under part 5 or part 6…. What I’ll ask the Attorney to confirm when we get to the committee stage is that this represents a clear direction to the court that these parts of the pension asset are to be dealt with under part 6 as parts of the pension. Where this becomes relevant, of course, is…. I shouldn’t say “of course.” I would not have known this but for the intervention of my friend a week or two ago.

In an age when it has become more common to take a commuted value of a pension…. This can amount to significant amounts of money. So the person that says, “Rather than wait until I’m 60 or 65,” whatever the age is, “to begin collecting my monthly pension, at age 45, I’m going to take X amount.” The mechanism by which that is calculated is horrifically complicated and involves everything from bond returns and interest rates…. I won’t even begin to try and communicate the formulas that the actuaries would use to calculate that amount on behalf of a pension plan.

What is far more relevant is, as between the two parties, one of whom may have a legitimate claim to a portion of that amount…. The rules around pension entitlement as it relates to the monthly payment are pretty clear. A spouse has an entitlement based on the amount of time that they were together prior to separation. That’s generally fairly straightforward when calculating a percentage of the monthly amount. But what if one of the separating parties decides to take the commuted value? What happens then?

As I understand — and again, the minister can confirm this during the committee stage — the inequity or the unfairness that has, at times, arisen is where that lump sum payment…. Taking the commuted value involves a portion of that pension entitlement going into a life income fund and then a portion coming by way of cash into a LIRA. But it would be unfair to simply apply a 50 percent division to that amount in situations where the parties have not been together very long.

So we’ll explore that in the committee stage of discussion around this bill, but given the age demographic of our society and, I take it, the increasing tendency on the part of many to seek the commuted value of their pension in advance of the pension date, which triggers the creation of these funds — the life income fund and the LIRA — it’s important that everyone have a clear understanding at the time that relationship breakdown occurs as to what the entitlements are so that that part of the property division can take place on a definitive, accurate and fair basis.

I think it is fair to say that the opposition believes it understands most of what is intended with the legislation and understands and accepts that insofar as creating certainty or uncertainty presently exists, it’s a beneficial thing, we’ll want to ensure in our committee stage debate that the wording around the legislation actually accomplishes what we are told the intention is.

[3:10 p.m.]

As always, it’s tricky. We’ll want to make sure we’re not inadvertently condemning Fluffy to a life of hell by inadvertently neglecting some provisions of what a court should consider in dealing with that situation.

But it will be, I think, a fairly technical discussion, but one that I think will assist people if we are able to do so on the strength of specific examples that point to what the regime will look like when, as I expect, this bill and the laws proposed within it become part of the property division regime within British Columbia.

Those are my comments, Mr. Speaker. Thank you.

Deputy Speaker: Thank you, Member.

Seeing no further speakers, does the minister wish to close debate?

Hon. N. Sharma: I look forward to our committee stage. I have to thank the member for speaking about the areas and clarifying where any further comments or discussion might be.

With that, Mr. Speaker, I move second reading.

Motion approved.

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

Bill 17, Family Law Amendment Act, 2023, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

Hon. L. Beare: I call continued Committee of the Whole on Bill 14.

Deputy Speaker: Members, it will take a few moments to just get us adjusted for committee. I just suggest a brief recess.

The House recessed at 3:11 p.m.

Committee of the Whole House

BILL 14 — MISCELLANEOUS STATUTES
(MODERNIZATION) AMENDMENT ACT, 2023

(continued)

The House in Committee of the Whole (Section B) on Bill 14, Miscellaneous Statutes (Modernization) Amend­ment Act, 2023; S. Chandra Herbert in the chair.

The committee met at 3:15 p.m.

The Chair: All right, Members. Here we are. I’d like to call this committee into session looking at committee stage of Bill 14, Miscellaneous Statutes (Modernization) Amendment Act, 2023, and we are on clause 1.

On clause 1 (continued).

R. Merrifield: I really appreciated the opportunity yesterday just to ask those reassuring questions and appreciated the minister’s answer, just about the rights of individuals and how they will be maintained and upheld, even with the language being changed. That gives a lot of comfort.

My last question is this. Is this process of inclusive language actually supported by any funding that will then go to help all of the regulators and all of the different programming, etc., adjust to the inclusive language?

Hon. B. Bailey: Thank you to the member for the question.

This work on these particular pieces of legislation is complete, so there’s no additional work that’s required, and there are no specific implications in regards to programming. Thus, for that reason, there’s no financial attachment to this bill.

Clauses 1 to 1201 inclusive approved.

Title approved.

Hon. B. Bailey: I move that the committee rise and report the bill complete….

Interjections.

Hon. B. Bailey: No?

The Chair: Sorry. Division has been called, Members. Thank you.

[3:20 p.m. - 3:25 p.m.]

The question is shall the committee rise and report Bill 14 complete without amendment.

Motion approved unanimously on a division. [See Votes and Proceedings.]

The committee rose at 3:28 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 14 — MISCELLANEOUS STATUTES
(MODERNIZATION) AMENDMENT ACT, 2023

Bill 14, Miscellaneous Statutes (Modernization) Amendment Act, 2023, reported complete without amendment.

Mr. Speaker: When shall the bill be read a third time?

Hon. R. Kahlon: Now.

Mr. Speaker: Members, you’ve heard the question.

[3:30 p.m.]

Division has been called.

Members, do we have an agreement to waive the time?

Leave granted.

Mr. Speaker: Thank you.

Members, the question is third reading of Bill 17.

Bill 14, Miscellaneous Statutes (Modernization) Amendment Act, 2023, read a third time and passed unanimously on a division. [See Votes and Proceedings.]

Hon. R. Kahlon: I call Committee of the Whole on Bill 13.

[3:35 p.m.]

Committee of the Whole House

BILL 13 — PAY TRANSPARENCY ACT

The House in Committee of the Whole (Section B) on Bill 13; J. Tegart in the chair.

The committee met at 3:36 p.m.

The Chair: We will call the committee to order. We are dealing with Bill 13, Pay Transparency Act.

I will ask the minister if she’d like to introduce staff.

Hon. K. Conroy: Thank you, Madam Chair.

With me today I have Asha Bhat, the assistant deputy minister of the gender equity office, and Alison Dudley, executive director of the gender equity office. Of course, our Parliamentary Secretary for Gender Equity is with us as well.

On clause 1.

R. Merrifield: I’d like to start off by asking some pretty big questions on the definitions, etc. We’re going to start just on the actual thresholds that are described. I’d love to know how the minister actually chose those thresholds, based on business sizes. Were the industry, or industries in general, consulted?

[3:40 p.m.]

Hon. K. Conroy: Yes, the industry was consulted. Consultations were held with small, medium and large-sized businesses across the province. Thresholds were determined to ensure businesses of smaller sizes could ease into the reporting system, and then year-by-year reporting could also be fine-tuned to ensure that there is a seamless process for small businesses. We started with larger businesses because they obviously had larger human resource offices, so that they could more readily engage with the system.

R. Merrifield: Thank you, Minister, for the answer. I’m curious. Were the findings of the industry consultative process ever made public in any sort of a document or report?

Hon. K. Conroy: The consultation paper was made public. It was posted, but not the actual findings. A what-we-heard report wasn’t part of the process, but what was heard was definitely part of how the legislation was formed.

R. Merrifield: Is it possible for the minister to provide that report?

Hon. K. Conroy: Notes from the consultation process have not been made public.

R. Merrifield: Could the minister please specify how many businesses will be captured at each stage of the phasing in of this act? For example, under 3(a), for 2024, 1,000 or more. Just how many businesses does that represent across British Columbia? In (b), for 2025, 300 or more. How many businesses are represented in that number?

Hon. K. Conroy: In stage 1, it covers approximately eight employers, 3 percent of the workforce. Stage 2 covers approximately 172 employers, 33 percent of the workforce.

[3:45 p.m.]

Stage 3 covers 700 employers, approximately 46 percent of the workforce. The final stage, stage 4, covers approximately 8,537 employers, 65 percent of the workforce.

R. Merrifield: Thanks for the answer and the statistics. Could the minister also please specify how many employees? Do you have the number of employees? We’ve got the percentage of employees, but do you have the actual number of employees that will be captured at each stage?

Hon. K. Conroy: We don’t have the exact numbers, but it’s felt that by the end of the process we’ll have covered about 1.5 million employees.

R. Merrifield: Will franchises, such as McDonalds, Boston Pizza, Subway, be considered one employer, or will they be considered multiple employers? Are they covered under 3(a), or would they be covered under 3(d)?

Hon. K. Conroy: With franchises, locations are typically independently owned and operated, so the individual employers, the franchisees or business owners, would be responsible for producing their own reports if they individually meet the employee threshold numbers at the location, or locations, that they operate. For instance, Subway Canada would not be required to produce a report on behalf of all of its franchise locations in B.C. The responsibility would rest with the individual employers.

R. Merrifield: Thank you, Minister. Is there a risk, Minister, that some of them might not even have to report then, because they would be under that 50 threshold?

Hon. K. Conroy: By the fourth year of this rollout, if they have 50 or more employees, they would have to report. It’s something that we’re going to be looking at and fine-tuning as this process moves forward, if that’s a number we would like to change, or just to see how it’s going to work.

R. Merrifield: I definitely understand the delicacy of not burdening very small businesses and enterprises with a level of bureaucracy that is difficult for them, right? I mean, they just don’t have the staff to try and report out, etc. So I understand the difficulty. It’s just that when we have a large number of them that could be under that 50 threshold, that could be problematic just in terms of a population that would not be part of the numbers or part of the reporting data that we’d have.

I’m going to move on, though, to the next question and ask…. The employer health tax, actually, currently considers related enterprises as one single business for accessing taxable payroll. So will there be a similar principle applied for this legislation, or will businesses be considered separately?

Hon. K. Conroy: I thank the member. It’s a good question. Details will be refined in legislation, but it’s also why we will be in communication with employers to make sure that we’re determining the best way to move forward with the legislation and get the reporting done that needs to be done.

[3:50 p.m.]

R. Merrifield: Just to clarify what I’m hearing from the minister, right now that determination has not yet been made.

Hon. K. Conroy: Each business would be considered separately. However, when this is…. It’s something…. It’s under consideration under the regulations, not legislation. We want to make sure that we determine the best path forward for employers.

R. Merrifield: Will the minister be devoting any resources to helping smaller enterprises prepare for the legislation being phased in? I’ll note that there are 8,537 of those smaller businesses, those 50 to 300, that are in that range.

Are there any resources that are devoted to helping small businesses with this? If so, does the minister have a financial estimate?

Hon. K. Conroy: These will be the things that we undertake as we move forward. The Ministry of Finance has a dedicated webpage to explain the requirements under the Pay Transparency Act. It’s easily searchable from the ministry’s home page or by entering “pay transparency B.C. government” into a search engine.

If an employer goes on to the site and doesn’t find the information they’re looking for, they can email ministry staff directly. The email is paytransparency@gov.bc.ca. The information could be posted on the site. We’ve already answered a number of questions that have come from employers, and we are looking to respond to employers very quickly.

A. Olsen: I’m reflecting on this bill and reflecting on how I want to approach what has been offered. I provided my second reading remarks some days ago. I’m not sure which one it was now, but it was a while ago.

I think it’s important to first acknowledge that there is a step being taken. It doesn’t, in my opinion, go far enough.

I have both a son and a daughter. I was thinking about this over the spring break. My partner and I have raised our kids to be equitable — equity between our two children. There aren’t those traditional divides in our family. The boys go with the dad, and the girls go with…. There isn’t that.

I see my children as equal in my eyes. They both have their own strengths. They both have their own weaknesses. They’re individuals. But they’re equal in my mind.

[3:55 p.m.]

My children are going to have remarkably different experiences because one of them is identified as my son and one of them is identified as my daughter. That’s just the world that they are going into. As we navigate this pay transparency legislation…. To me, it’s very challenging to think that we are only taking a moderate step forward to be able to say to my daughter that she’s not going to expect to earn less than her brother in her life.

The other thing, too, that is interesting is, as we’ve watched and listened to the debates that have come from this bill…. I think I should frame this, as well, in a conversation that I had yesterday with the B.C. Nurses Union. We were talking about all sorts of things around employment.

If my daughter chooses to be working in what is seen as traditionally women’s work — nurses, ECEs, teachers…. She can also expect to have a more expensive education than if her brother chooses, for example — or even if she chooses, for that matter — to become a welder, a plumber or an electrician, traditionally seen as men’s work.

We have two completely different systems. An apprentice for a plumber can get paid while they go to school, and they go to school for a much shorter period of time. An ECE, which we need many, many thousands of in this province, can expect to be paying to go to school. A nurse, when they’re at the end, as a fourth-year nurse, will pay to work.

I think that as we are looking at equity or transparency in this bill but equity, in general…. We still have a long way to go in this province to ensure that this world is equitable, truly inclusive.

I’m just wondering what it was…. To the minister, why was the choice to go with pay transparency legislation, not pay equity legislation or not what many jurisdictions in the province have? That is two companion bills, which have pay equity and pay transparency.

Hon. K. Conroy: I want to thank the member for the question. I understand where he’s coming from. I have four kids and nine grandkids.

I was very proud that my oldest granddaughter went to work in the shutdowns at Teck Cominco and the pulp mill in the last couple of years, jobs that are not seen as typically for young women. She held her own, and she came home very proud to let me know that there were quite a number of young women that were working the shutdowns in what would have been seen as traditionally male jobs. She also has a grandmother who was one of B.C.’s first female power engineers. So I know what it’s like to work in a sector that’s traditionally seen as so-called men’s work.

I also know that I made the same wages as men did when I worked, and she makes the same wages as men do when she works. They were large companies, large companies that were making sure that happened.

I hope that by the time the member’s children go to work in the industry, this bill will finally be fully implemented. This bill is the first step in pay equity. It’s to ensure pay equity across all sectors.

It’s important work to advance pay equity in B.C. It strikes a good balance between the interests of advocates, employers and employees. It will be a critical new tool in our work, which our government is doing, to address the pay equity gap. It has also been shown in other jurisdictions that have very similar legislation that it is helping with the pay equity gap, and that is another reason why we’re moving forward with this first very important step.

[4:00 p.m.]

A. Olsen: There are many hazards just to even having this conversation. I don’t want to assume that there…. There are the traditional roles and the traditional views, and that’s, I think, the frame that I asked that question in, recognizing, of course, that there is a choice to work in any industry and, in fact, encouraged to. So I appreciate the response from the minister.

After so many months, after so many years of this being put in front of this government, why is it that this government chose to take a modest step forward rather than just delivering what I think you see other jurisdictions in this country delivering — both pay transparency and pay equity?

Hon. K. Conroy: This is a first important step. A key goal of this legislation is to shed light on the pay gap and to empower job seekers and employees in their job search and in the pay negotiation process, enhancing the transparency of employer pay practices. It can expose wage discrimination, and this can empower employees to demand equal pay at the workplace and nudge employers to do more to ensure that their pay practices are free of discrimination.

Addressing the pay gap requires an all-of-government approach. We are already making progress in narrowing the pay gap through investments in training, education and child care and through our increases to the minimum wage. I mean, 75 percent of the people that entered the workforce last year were women, and that was directly attributed to our child care programs. Pay transparency legislation is going to be another critical tool that we can use to shine a light on that gap and decrease it.

A. Olsen: Why not, along with pay transparency legislation, include pay equity legislation?

Hon. K. Conroy: This is the first step. We’re taking this all under consideration, working with employers and employees as we transition to stage 4, and this is the first step.

A. Olsen: The reality is that when this legislation came out, there was quite a lot said about it. The fact that this government hasn’t brought forward pay equity legislation for us, but has instead taken, as the minister frames it, a first step that doesn’t include pay equity but does include pay transparency, puts the burden back on the worker, to an extent.

I’m going to table an amendment to clause 1.

[CLAUSE 1, by adding the underlined text as shown and deleting the text shown as struck out:

Definitions

1 (1) In this Act:

“annual report” means a report under section 8;

“director” means the individual designated under section 10 as the director of pay equity and transparency;

“Indigenous governing entity” has the same meaning as in the Freedom of Information and Protection of Privacy Act;

“Indigenous peoples” has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act;

“pay” means, subject to any prescribed exceptions, the following:

(a) a salary, wage or commission that is paid or payable by an employer to an employee for labour or services provided by the employee;

(b) money that is paid or payable by an employer to an employee as an incentive in relation to hours of work, production or efficiency;

(c) money that

(i) is paid or payable by an employer to an employee at the discretion of the employer, and

(ii) is not related to hours of work, production or efficiency;

(d) compensation, including all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount;

“pay transparency report” means a report prepared by a reporting employer under section 5;

“personal information” has the same meaning as in the Freedom of Information and Protection of Privacy Act;

“publicly advertised job opportunity” means a specific job opportunity that an employer advertises to the public in any manner;

“reporting employer” means an employer referred to in subsection (2) or (3).

(2) The following are reporting employers:

(a) the government;

(b) British Columbia Housing Management Commission;

(c) British Columbia Hydro and Power Authority;

(d) British Columbia Lottery Corporation;

(e) British Columbia Transit;

(f) Insurance Corporation of British Columbia;

(g) Workers’ Compensation Board.

(3) Unless exempted by regulation, an employer that has the following number of employees on January 1 of the applicable year is a reporting employer:

(a) for 2024, 1 000500 or more;

(b) for 2025, 30050 or more;

(c) for 2026, 50 or more;for 2026, more than the lesser of 49 and any prescribed number.

(d) for a year after 2026, more than the lesser of 49 and any prescribed number.]

On the amendment.

A. Olsen: This amendment adds pay equity to the list of the director’s responsibilities. It expands the definition of “pay” and changes the time frame for reporting. Stakeholders have called for this change. An open letter from over 125 individuals and organizations stated that “the legislation should require transparency of total annual compensation, including all bonuses and non-monetary benefits and perks. This information should be tied to job titles and descriptions of core duties.”

Understanding total compensation is necessary to en­sure pay equity, and that’s the reason why I’m moving the amendment to these definitions. Pay needs to be broadened to include compensation other than wage and salary, including benefits, pensions and other items that cannot be captured through a simple definition of “pay.”

[4:05 p.m.]

It would be better to use the word “compensation,” which you will see is being done in the definition under pay, section (d): “compensation, including all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount.”

I also move the change to the time frames for reporting. The current time frame is very long for such slight legislation. Experts and stakeholders called for this legislation to apply broadly across the economy. They state that pay transparency should be mandatory for all employers with ten or more employees across all sectors. Pay equity is needed in organizations of all sizes.

The Chair: My ruling is that the amendment is in order. We’ll take a short recess to ensure that everyone has a copy, and then we’ll come back into committee.

The committee recessed from 4:06 p.m. to 4:08 p.m.

[J. Tegart in the chair.]

The Chair: I call the committee back to order.

A. Olsen: First, I would want to just make sure that I use the correct language — that I am moving the amendment that has now been shared with the Clerk and the Clerk’s table.

Second, I seek leave to make an introduction.

Leave granted.

Introductions by Members

A. Olsen: I have no idea who is sitting in the gallery this afternoon, but there are a whole bunch of people that showed up in our gallery.

I just wanted to welcome you here while we’re debating Bill 13. This is the Pay Transparency Act. We are in the committee stage of the debate. This is where we go through clause by clause of this bill and where we understand what the intention of the government and the minister is and where the members of the opposition, which you see sitting from here on, go through each clause to ask questions about the intention of it.

Welcome to our House. Enjoy the rest of your afternoon.

Maybe we can all make them feel welcome.

Debate Continued

Hon. K. Conroy: I thank the member for the amendment, but we will not be supporting this amendment. It too quickly accelerates the implementation of the reporting, and it will place an undue burden on small businesses, especially, to adapt to this new model that is being proposed. We’ve heard very clearly from small businesses that they need some time to carry forward with what we are proposing. We want to make sure that we support everyone so that it gets done in the right way.

[4:10 p.m.]

A. Olsen: I hear the minister’s response. I do think it needs to be put on the record that women in this province, in particular, have been waiting for this for a long time, and to think that this amendment would speed it up….

This process for this legislation, at least for this first step of the legislation, has been in the process for six years, perhaps. It is a remarkable step back from what the predecessors of this B.C. NDP government — the previous version back in the 1990s, early 2000s — had implemented with pay equity legislation. I recognize the impact that this has on business, but to think that that….

We’re essentially saying that the burden, then, should be carried by women in this society. So I don’t accept the reason why the government will not vote for this. Of course, I support it, and it’s disappointing that the government’s view of this is that we’re moving too quickly. Because I think, in the grand scheme of things, when you look at the fact that this is a process that started….

I mentioned in my second reading debate speech a number of former B.C. NDP MLAs and cabinet ministers that were talking about that process 22 years ago, starting 25 years in advance. So this is not a fast process. This is painfully slow.

R. Merrifield: I’ll just take a couple of seconds. I need a little bit more time to digest as to whether or not I will consider support, but I do want to make a couple of comments to what I’m hearing from my other opposition colleague from the Third Party, and that is that women have been waiting.

As a woman, I can tell you that women have been waiting. They have been waiting for as long as I have been an adult, which is about 25 years. I could go back and give a history lesson on all of the things that we have come and have been able to do over the course of my lifetime and the measures that have been put into place in my lifetime. I know that I would not be where I am today without the pioneers who went before me. And what I want in this bill and what I see in this bill is another step, another measure, another amount forward for women.

As I have researched these measures over the course of the last 15 years, I know that there are some dangers with pay equity acts and measures and laws. The dangers come from things like pay compression, which can happen when laws aren’t thoughtfully and carefully measured out in accordance with how it should be.

I want to talk just briefly, because I know that we’ve been speaking about what happened in 2001 and the measures that were brought forward and then not. I’m actually very happy that they were not brought forward in 2001, that those measures were taken away, because as I reviewed what was passed back in 2000 and 2001, I actually called them, like, the tattletale bill. It was this bill where you as a female would have to go and then prove that you had been unduly treated and that your pay was not equal. There were so many flaws with that.

I actually celebrate that this is going to be phased in. I liked the minister’s answer that there is going to be an iterative process on the regulations and that there will be lessons learned from the biggest companies who have the easiest time in terms of reporting and data and making sure that all of those tweaks and nuances are there.

I do think that there are some things that could be improved upon. I’m appreciative of the process, and I like that during this committee phase we’re going to be drilling down into some of those aspects. But I think where we ended up in terms of the phase is not too long.

I do believe that already, I’ve been getting emails from businesses who are like: how do I do this? Where do I report? There’s an eagerness, but there’s also a fear and trepidation — how do I do this? What do I report? — and companies that are going to struggle with the capacity to actually report.

[4:15 p.m.]

I like the approach that we’re taking today. I need time to consider whether or not we support the amendment, but I did want to just say that pay transparency and pay transparency legislation is the mechanism to get to pay equity as a concept. It has been proven, through jurisdictions that have already got pay transparency legislation in place, that that gap narrows, and it narrows significantly — by almost 40 percent.

I don’t necessarily agree with my colleague from the Third Party, and I do think that this is a measured step that balances both the end goal, as well as the disruption and the positive disruption that this will create.

The Chair: Seeing no further speakers to the amendment, the motion is approval of the amendment.

Amendment negatived on division.

The Chair: We’re back on clause 1.

A. Olsen: Thank you for the opportunity.

I think we’re achieving what we need to achieve here, which is a discussion about this and the choices that were made and, clearly, the options that are in front of this government. I think we are moving through this process as we should, and it’s nice to hear the responses from the official opposition and from the government.

I am going to move a second amendment to clause 1. This is, in part, because one of the challenges is that as Bill 13 is currently, it doesn’t have a purpose of the act. That’s what the amendment that I’ve just shared with the table accomplishes. Stakeholders have called for a purpose to be identified in the act.

[CLAUSE 1.1, by adding clause 1.1:

Purpose

1.1 The purposes of this Act are as follows:

(a) to promote equality in employment through increased trans­parency of pay and workforce composition;

(b) to work toward pay equity legislation;

(c) to support open dialogue and workplace consultation be­tween employers and employees on issues concerning employ­ment compensation.]

On the amendment.

A. Olsen: Basically, what this amendment outlines is that the purpose of the act is to promote equality and employment through increased transparency of pay and workforce composition, to work toward pay equity legislation and to support open dialogue and workplace consultation between employers and employees on issues concerning employment compensation.

Marjorie Griffin Cohen and Humera Jabir have noted how important it is to understand what the act intends to accomplish and to have an idea of what would be the basis for the five-year review that is in this act. These objectives reflect the government’s reported reasoning for doing it, and that’s the reason why I moved this amendment.

The Chair: I’m going to call a short recess in order to distribute the amendment.

The committee recessed from 4:18 p.m. to 4:21 p.m.

[J. Tegart in the chair.]

The Chair: I’ll call the committee back to order.

The amendment is in order. We are not actually amending clause 1; we’re adding clause 1.1.

On the amendment, are there speakers?

A. Olsen: I appreciate the nuanced correction. Thank you for that. It’s adding section 1.1.

I’ve stated what it is that I would like to see in the bill that’s in front of us, and I don’t have anything further to say.

R. Merrifield: I was just over, while we were photocopying the amendments, chastising the House Leader for the Third Party for not getting the amendments faster. I could have reviewed them and, possibly, lobbied, through my caucus, to try and rally some support.

Unfortunately, I’m getting these kind of at the eleventh hour, so I won’t be able to support them on behalf of my caucus at this point.

Hon. K. Conroy: I think it’s very clear, upon reading the act, that it has been written to address the pay gap through a pay transparency report.

As I said, this is an important first step. We need to ensure that due diligence is in this legislation so that we can ensure that we move forward in a good way. The ultimate goal is to ensure pay transparency and to work that through in a four-year stage.

Amendment negatived on division.

Clause 1 approved.

On clause 2.

R. Merrifield: This gets down into the meat of this legislation. In reading it, with respect to the publicly posted job opportunities….

My first question. We will start with a real high level. What are the penalties for contravening this section?

[4:25 p.m.]

Hon. K. Conroy: This legislation is about building a better system. While reporting is mandatory under the legislation, we’re taking a collaborative approach through public education and positive enforcement where the director will remind employers of their obligation through this legislation.

R. Merrifield: So there’s a reminder that’s given by the director, and that’s really the only form of enforcement in terms of publicly posting job salary scales?

Hon. K. Conroy: The director will be responsible for providing support to employers to meet their obligations under the act. This support will involve providing information on the act through website information and responding to employer questions. The director will also receive information from employees about employers who are not complying with their obligations under the act, allowing the director to monitor and track non-compliance.

The director will be responsible for producing annual reports and, potentially, supporting a review of the act within five years. The director will also follow up with the employer to provide information on its obligations under the act, as I said. The director will also track and monitor reports of non-compliance and use this information to inform annual reports and a review of the act, which has to be completed within the five years.

R. Merrifield: So there will be a tracking system, then, that will create data as to which companies are reporting and which companies are not reporting? Am I understanding that correctly?

Hon. K. Conroy: The director will track any reports of non-compliance and follow up with them. It’s important that we recognize that the public education is important, that the work that’s going to be done by the director is important and the director will be responsible for reminding employers that this is their obligation under the legislation.

R. Merrifield: I’ll build a scenario. How does the director actually become aware of a company that is not posting a salary scale on their job postings?

[4:30 p.m.]

Hon. K. Conroy: Complaints will be received through the gender equity office or directly to the director of gender equity.

R. Merrifield: So the director will not be proactively mining, indeed, or mining different HR companies’ postings, etc., to find companies who are not complying and then encourage them to comply.

Hon. K. Conroy: The ministry will take an approach of positive encouragement to ensure that the legislation is being followed. If there is a complaint, the director will follow up on those complaints.

R. Merrifield: Are there any resources that will be allocated that will allow this process to occur?

Hon. K. Conroy: Is the member talking about resources for someone to make a complaint or resources for the office? I’d just like some clarification on the question.

R. Merrifield: Absolutely. So the process for the office to actually be able to field those complaints and then follow up, do the due diligence, etc., and try and — I believe it was called — support compliance.

Hon. K. Conroy: A pay transparency unit is being established to carry out this very important work, including the public education.

R. Merrifield: Where under the budget does the pay transparency unit fall within? And how much is allocated to the pay transparency unit?

Hon. K. Conroy: I believe that would be a good question for estimates.

R. Merrifield: Considering it’s still the same minister and the same staff, I just thought I’d save us both a little time there, I guess. But much appreciated. I will definitely make note of that one.

[S. Chandra Herbert in the chair.]

My next question is actually to go to some of the changes that could transpire with these public postings. My question to the minister is: how might including salary ranges in job postings affect the hiring process and the decision-making for employers?

The Chair: Minister.

Hon. K. Conroy: Thank you, Chair. Welcome to the chair.

That’s actually beyond the scope of the legislation.

R. Merrifield: So the minister doesn’t have any anticipation or expectation for how actually posting the salary scales will affect the hirings of those organizations.

[4:35 p.m.]

Hon. K. Conroy: That would be up to each individual employer, something that their human resource units would determine. Again, it’s out of the scope of the legislation.

R. Merrifield: How does the minister, then, anticipate that including salary ranges in job postings will impact the overall culture and values of the organizations within B.C.?

Hon. K. Conroy: Posting clearly the pay range within a job posting empowers the applicant in their negotiations — particularly women, Indigenous people and racialized people — in making strong decisions on their employment and their job search, which strengthens their negotiating position.

R. Merrifield: Thank you, Minister, for the answer to how it would affect the employee. But I was actually asking about how it would affect the organization. How does having that posted affect the values and culture of an organization that is having to post that?

Hon. K. Conroy: Values and cultures of employers are out of the scope of this legislation. But some employers are definitely interested in using pay transparency as a marketing tool to attract talent and showcase themselves as a top employer, especially in a market that we have in our province, where we have some of the lowest unemployment in the country.

[4:40 p.m.]

Employers are looking for good, qualified employees and offering those good positions, wages and benefits to attract them.

R. Merrifield: Thank you to the minister. Could posting the salary ranges in job postings lead to any regulatory or legal challenges for employers, such as claims of wage-fixing or collusion?

Hon. K. Conroy: I want to thank the member for raising the issue. We can definitely take this into consideration as we move towards regulations.

We’re not alone on this journey. Other jurisdictions in North America have already implemented legislation like this and have already adopted best practices. We’re looking forward to making sure that we’re in close conversation with employers as this legislation is implemented across the board of the different employers and over the four-year period.

R. Merrifield: I certainly don’t envy the task of the office. It’s going to be a lot of moving parts for some time.

My next question for the minister is: how will the definitions be monitored? Within the job postings, what’s to preclude a posting for a role that might have a similar job description or similar scope but is just named or titled something different? I’ll give an example. You have an HR generalist or an HR manager or an HR administrator or an HR director. All of those could have similar scopes and roles depending on the company that they work for.

Is there anything within this aspect, in terms of the expected salary posting, that will also say: “Yes, you should also post the other aspects so that they can be comparable as well”?

Hon. K. Conroy: This is out of scope for the legislation. The intent is to create transparency and make sure that employers are implementing it.

[4:45 p.m.]

We are not going to be making sure that there’s some consistency in job descriptions across the province for every employer, that there’s some similarity in job descriptions across the province.

R. Merrifield: Thank you, Minister, for the answer.

What happens if there’s a salary scale that’s posted and an employer exceeds that salary scale? Is there any need for transparency in that aspect, or is it simply the posting of the salary scale?

Hon. K. Conroy: We are going to rely on an employer’s good faith — that they post, accurately, their pay gaps. The reports will be posted publicly, and it would be a significant reputational risk to an employer to post a false report.

I’m thinking that the member is suggesting…. They post a pay gap, and then after the fact, they pay differently. That’s what we’re reading from that question.

R. Merrifield: Actually, I was asking about the posting. On the posting, the advertised job that an employer is looking for….

Let’s use the HR manager again. They say there’s a salary range of $68,000 to $90,000. What happens if the employer then decides…? They have a star candidate that walks through the door, absolutely exceptional, incredible experience, amazing references, etc., but that particular employee says, “No, I want $100,000,” instead of the $68,000 to $90,000. Is there anything to preclude that employer from going beyond the posted salary scale?

Hon. K. Conroy: The legislation says that only the expected salary is required to be posted. If an employer wants to pay more, we’re not going to deny them that right to pay more. That’s an employer’s opportunity.

R. Merrifield: Thank you for the answer to that question.

The last one that I have on clause 2 is: how might including salary ranges in job postings vary across industries?

What I’m hearing from the minister’s answers — and I want to make sure that I’m hearing correctly — is that there’s not going to be any sorts of regulations around what they have to post or what that particular job means in their industry, etc. It’s more just around the salary scale expectations for a particular role or posting.

Hon. K. Conroy: Yes, that’s accurate.

A. Olsen: Just a question. Can the minister give an example of a situation exempt from regulation? This clause opens with “Unless exempted by regulation.” What is considered in that?

[4:50 p.m.]

Hon. K. Conroy: While the ministry doesn’t anticipate needing to grant many exemptions, this was created as a regulatory pathway to allow this in case an employer or a class of employers is able to clearly demonstrate that the requirement poses a significant burden or obstacle in the recruitment process or business operations. But we don’t anticipate needing to grant many exemptions, if any.

A. Olsen: We might not…. We do consider that, because it’s in this legislation: “Unless exempted by regulation.” So we have actually considered it. We just don’t have any clear understanding of what would be considered.

Can the minister provide clarity on what is considered in this? In order to write this, you have to have, I think, some idea of what might be considered to be exempted from regulation. What are those things?

When I say “you,” I mean the minister, of course. Sorry.

The Chair: I appreciate it.

Hon. K. Conroy: When this was written…. The member is right. Exemptions would be introduced through regulation. But we took into consideration that there could be possible hardship, that we needed to just keep that in mind and that regulations would be developed to address that.

A. Olsen: Can the minister outline what types of hardships might be considered and what the process is to consider those hardships in an open and transparent way? This is pay transparency legislation. What’s the transparency around that decision-making process?

Hon. K. Conroy: Again, we will consider developing regulations if a need presents itself. We look forward to continuing discussions with employers as we implement the legislation.

A. Olsen: We’ve got a situation here, in 2023, where we’re trying to ensure that people are not going to be paid based on their gender, their status, underpaid for work of equal value. We’ve got…. I mean, I’ve already raised the points and the concerns that I have with respect to the fact that I don’t believe that this legislation goes far enough, and now what we have is rather vague.

I understand why these are in lots of the bills that we put. But until there’s, I think, an example of what it is that might be exempted…. Basically, what we’re doing here is saying that we’re going to continue to perpetuate…. We’re creating pay transparency legislation. We’re going to continue to perpetuate a scenario in which it’s acceptable for employers to make an argument that….

[4:55 p.m.]

There might be a perfectly good example of this, and that’s what I’m looking for here. What is the perfectly good example where, in 2023, it’s acceptable for a class of employers to come up and say: “You know what? We’re going to continue to hide the payment, the compensation that we pay for different employees”?

What I’m seeking from the minister is an example. Otherwise, to me, it seems like we should be making sure that all classes of employers are required to follow this to ensure that there isn’t disparity and inequity in our society.

Hon. K. Conroy: Again, the ministry doesn’t anticipate the need to grant any exceptions. It just allows an opportunity for the discussion to happen if it is requested.

A. Olsen: Can the minister outline what that discussion would look like and what the decision-making process would be in order to draft a regulation? What parameters would be considered, and what level of transparency would there be for the public — which is, ultimately, who this is for — to ensure that the inequities that are in our society don’t continue to persist? There’s been no clarity on what the decision-making process of this is. It’s just a completely blank canvas.

Hon. K. Conroy: That’s a process that will be developed through regulations.

A. Olsen: I’m going to move on. I’m not going to get any more clarity on this, it seems.

I’m wondering if I heard correctly early on in the questions from the member from the official opposition asking about compliance and enforcement of this. Just to be clear, there is no enforcement or penalties for not complying with this clause in this bill. Is that correct?

Hon. K. Conroy: This is part of the legislation, and we are taking an approach of positive enforcement and education.

A. Olsen: Positive enforcement meaning what? What would examples of positive enforcement look like?

Hon. K. Conroy: The director will be responsible for providing support to employers to meet their obligations under the act. The support will include providing information on the act through the website information as well as responding to employer information. If they’re contacted, they’ll be providing the information to the employers.

A. Olsen: I’m just going to read this into the record, and then we can move on. I just want to go back to the morning sitting of March 22, 2001, when Graeme Bowbrick tabled the former version of legislation brought in by the former B.C. NDP government.

“For those who say that legislation isn’t required and that pay equity can be achieved voluntarily, I guess the question is: how much longer will it take? Are there any estimates? Do those who argue for a voluntary approach have an answer for the women of this province? Can they go out to those women and say: `Hold on. Legislation isn’t required because we estimate, at the current rate, that in ten years there’ll be pay equity in this province’? I haven’t heard that. If that can be added to this debate, I think it would be a useful thing.”

Twenty-two years ago.

Clause 2 approved.

On clause 3.

[5:00 p.m.]

R. Merrifield: What recourse do employees have in the case that pay history information is asked for from them?

Hon. K. Conroy: The director will follow up with the employer to provide information on its obligations under the act. The director will also track and monitor reports of non-compliance and use this information to inform annual reports and a review of the act, which must be completed within five years.

R. Merrifield: If I understand the minister correctly, then, there is no real recourse for an employee that’s being asked for their payment history or for their history about their pay?

Hon. K. Conroy: The employee can reach out to the director. It works both ways, for the employee as well as the employer.

R. Merrifield: But if I understand correctly, the minister has previously said that there are no penalties. If the employee reaches out to the director and says, “I’ve been asked for my employment history,” there is no real penalty for the employer. Do I understand that correctly?

Hon. K. Conroy: The director would remind the em­ployer of their obligations under the legislation.

R. Merrifield: Are there any resources, in addition to what we’ve already discussed, in terms of the office and the director for the pay transparency division? Are there any further resources that will be allocated to the answering of these complaints from both employer or employee?

Hon. K. Conroy: It’ll be managed by the director and the pay transparency unit.

R. Merrifield: The minister, then, will also canvass the pay transparency office or sub-office during estimates as to what the resource allocations are? Is that correct as well?

Hon. K. Conroy: We’re not quite sure what the member is asking. If she’s asking about a budget issue, yes, that would be best asked through the estimates process.

R. Merrifield: I’m actually asking about the resources that are going to be allocated towards the facilitation of this act and of this bill. Who are the…? How many direc­tors — one director? Are there other office staff?

We’re only three clauses in, and there’s a lot of: “The director will be calling and be answering.” There’s going to be a lot of…. In the numbers that we added up in the very first go, there are almost 10,000 businesses. Those are a lot of phone calls. That’s a lot of follow-up. That’s a lot of correspondence. My question is: what resources are going to be allocated to make sure that this happens seamlessly and that those iterative processes of the regulations will transpire as promised?

[5:05 p.m.]

Hon. K. Conroy: This is the work of the pay transparency director and the pay transparency unit. The actual funding requirements are best asked under estimates.

A. Olsen: As it’s turning out, there are no real enforcements. What happens if a reminded employer continues to ignore the reminders?

Hon. K. Conroy: Again, this is a first step. This will be a process of education, public education, making sure that we can bring employers along who will happily want to engage in this process.

There have been discussions and consultations had with small, medium and large employers. We’re starting with the biggest employers and the Crown agencies to make sure that we’re moving this in the right direction.

It’s a first step. We want to make sure that this is done right. We want to make sure that there’s due diligence done when we’re developing the regulations, that we’re having those conversations with employers, with employees, and the reports will be public every year. The reports would be publicly posted so that people can see.

I think employers will use this as an opportunity to attract employees to their worksites.

A. Olsen: I find that kind of an interesting argument to use to defend the first step, that this is going to be a tool that employers are going to use to attract.

Employers that are already operating on the equity ethic are already paying their employees equal pay for equal work. That’s already happening, and they will already be able to be doing that. It doesn’t need pay transparency legislation in order for the employers who are operating from this ethic already to be able to….

Other than maybe a report at the end of the year to show it, without any enforcement of this, this bill is for those that are not. I agree that this is one extremely modest step. This is simply saying: “Make a report, and then, if you’re not in compliance, we’ll give you a call. If you’re not in compliance, we’ll give you another call.”

There’s nothing in here that requires their…. It’s required to be transparent, but there are no enforcement mechanisms in this, just phone calls.

Hon. K. Conroy: This is the first step. It has been proven to work in other jurisdictions, and there’s reputational risk for employers that don’t comply.

Clause 3 approved.

On clause 4.

[5:10 p.m.]

R. Merrifield: In clause 4, we have things that an employer must not do. They can’t “dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or threaten to do so, because the employee (a) made inquiries to the employer about the employee’s pay, (b) disclosed information…(c) made inquiries to the employer about a pay transparency report…(d) asked the employer to comply….”

I’ll ask a similar set of questions to the previous ones, and that is: what recourse do employees have in this case that this occurs?

Hon. K. Conroy: They can contact the director, and the director will remind the employer of their obligations under this legislation.

R. Merrifield: Are there going to be considerations for penalties at any time through regulation in the iterative process that the minister noted earlier?

Hon. K. Conroy: The director will consult with employers and continue to monitor the implementation. The legislation requires that the act will be reviewed within five years to determine its effectiveness, and depending on the findings, the minister may consider amending the act to provide more formal compliance and enforcement measures if that is needed.

Again, in other jurisdictions where this legislation has been introduced, it hasn’t been needed.

R. Merrifield: The final question that I’ll ask in this clause…. I’m just alerting my very faraway member of the Third Party there that this is my last question on this clause.

What I’m hearing from the minister is that in order for a penalty to be introduced, it will come back to this House and then, through legislation, would have that penalty be introduced.

Hon. K. Conroy: Yes. If we amended the legislation, it would have to be done through a regular amendment through the Legislature.

A. Olsen: Why wouldn’t this be a good opportunity to use the “unless exempted by regulation” type of clause and give the opportunity for some kind of a penalty to be put in place through regulation if we see this being exploited?

Hon. K. Conroy: As I’ve been saying, this is the first step with this legislation, and we are going to continue to consult with employers and have input from employees as the four stages are rolled out with the various-sized employers.

R. Merrifield: Is it possible that the labour board could hear complaints stemming from this act?

[5:15 p.m.]

Hon. K. Conroy: The process is that if an employee has an issue, they contact the director of pay transparency or the unit to follow through with their complaints.

R. Merrifield: So the labour board wouldn’t necessarily hear a complaint; they would direct them to the director of the pay transparency unit? That’s part of my question.

The second part of my question is: would this give grounds for a Human Rights Tribunal claim?

Hon. K. Conroy: If the employees have a complaint with the legislation, they would go through the wage transparency unit to the director. But if employees experience discrimination in the workplace, including pay discrimination, they can file a claim with the B.C. Human Rights Tribunal.

R. Merrifield: The penalty, then, for an employer would be that this law would actually empower an employee, on the basis of pay equity, to have a Human Rights Tribunal case of discrimination heard. Or does that already exist?

Hon. K. Conroy: That already exists.

R. Merrifield: Sorry. And last one. What about the employment standards branch? Again, an employee who goes to the employment standards branch to say, “My employer isn’t conforming” or “I was asked about my past pay” — would that be as well? Would they be instructed to then call the director of the pay transparency unit?

Hon. K. Conroy: Yes, it would be referred to the wage transparency director.

A. Olsen: On clause 4, I just want to ask a similar question that I’ve asked. If those who are not meeting the obligations under this act fail to meet the obligations under this act and continue to fail to meet the obligations under this act, there’s no penalty for them to do that? That includes if an employer knowingly disadvantages an employee who speaks out and asks about pay wages and pay transparency reports. There are no mechanisms to enforce this legislation. Is that correct?

Hon. K. Conroy: Again, this is a first step. The employees can make sure that their complaints are heard with the director of wage transparency. The wage transparency director, or the unit, will reach out to employers and ensure that they are following their obligations under this legislation.

A. Olsen: If the employers continue to not follow their obligations under this legislation, what recourse does that director have to seek compliance?

[5:20 p.m.]

Hon. K. Conroy: There will be an annual report by the director where they will publicly report their findings of any complaints that they have received, and there will be a formal review of the act within five years to determine its effectiveness and if there are changes that need to be made.

Clause 4 approved.

On clause 5.

R. Merrifield: Thank you to the minister for all the answers to the questions.

We, as the opposition, have actually tabled pay transparency legislation six times now. It was actually done five times by the former MLA for Surrey South, before she took her amazing new job, and then once by myself. Can the minister outline what aspects of the opposition’s legislation were relied on to design the pay transparency regime in B.C.?

Hon. K. Conroy: The legislation is similar to the private member’s bill in that it requires employers to post pay transparency reports on their website. It creates a role similar to the director of pay transparency, and it does not include formal compliance and enforcement measures.

However, the proposed legislation improves on the private member’s bill by including additional transparency requirements related to job postings, salary history bands and anti-reprisal protection. It requires reporting requirements to be introduced through regulation, enabling further engagement with employers and flexibility to address reporting requirements with emerging best practices.

This includes the use of the new gender and sex standard, with a non-binary gender category, and the future anti-racism data standard. These two best practices will allow us to better understand the pay gap for racialized women and non-binary people.

It also states which employers the legislation will apply to, over a four-year period, a phased-in timeline, to give employers certainty, unlike the private member’s legislation. It also sets the minimum threshold for reporting employers, those with 50-plus employees, to avoid any undue burden for small employers. It requires an annual report and a review of the effectiveness of the act within the five-year period.

R. Merrifield: What is the “prescribed information” that must be included in a pay transparency report, per section 5(a)?

Hon. K. Conroy: It will be developed in collaboration with the employers, as part of the regulation development, and it will include information on gender and pay.

R. Merrifield: How will the prescribed information that must be included in the pay transparency report be determined? Will it ever be amended, or will it always just be gender and pay?

[5:25 p.m.]

Hon. K. Conroy: It’ll all be described through regulation by prescribing reporting requirements in the regulations. The ministry can be more responsive to employer and employee needs in involving best practices on data collection. The ministry will leverage the province’s new gender and sex data standard to require employers to collect pay data gap on men, women and non-binary people at first.

In the future, we could update the regulation to ensure it aligns with the new anti-racism data standard currently being developed by the Ministry of Citizens’ Services under the Anti-Racism Data Act. This would allow us to understand how race, indigeneity and other intersectional factors aggravate the gender pay gap in B.C.

R. Merrifield: Thank you, Minister, for the answer.

How will the aspect of experience be if it’s not in the pay transparency reporting system, in terms of, “We’ve got gender; we’ve got what they’re paid,” but it doesn’t state whether or not they’re a first-year graduate or a ten-year tradesperson or a 40-year senior PhD holder? There’s no aspect of that actual experience that’s on the pay transparency report. How will that be taken into account with respect to pay grades?

Hon. K. Conroy: Thanks to the member for raising that issue. We’ll take it into consideration as we consult with employers on the regulations.

R. Merrifield: Thank you for that. I do appreciate it.

What is the prescribed format for a pay transparency report, as per section 5(b)?

Hon. K. Conroy: The format will be prescribed in regulation.

R. Merrifield: Thank you. Sometimes I wish that the regulations were already known and that we could have that debate on those as well. But, yes, thank you for the answer.

I do want to just go back to the minister’s previous answer and really encourage us…. As this evolves and iterates forward and understanding that a lot of this will be done under regulation and not under legislation, I just want to encourage that process of nuance and that process of more data, not less, and that process of really expanding the database.

I do think that the empowerment doesn’t just happen with the simplistic format. It actually happens when someone could search through a database to say: “I have this many years of experience. I have these past roles. I’m looking for this type of opportunity. What sort of a salary scale should I be expecting?” I think that the more that we can get to that place — even just releasing the data; we don’t even have to have the database — I truly believe that we will have amazing innovators who will take all of the data that’s provided and actually create some of those.

If you look on salary scale mappers right now — like, Indeed has one — many, many of the HR programs actually already do that work. The more data that we can provide and release and the more nuanced that data is, it actually provides better information for that empowerment process, which I think is what we’re all trying to aim for, for the pay equity to happen. Thank you for that.

Onto a totally different topic. Again, I’m just going to ask, on the record: what are the consequences for reporting an employer who fails to prepare a pay transparency report, as required by section 5 of the act?

[5:30 p.m.]

Hon. K. Conroy: The director will remind the employer of their obligations under the act, and there’s always the reputational risk, as the reports are made public.

R. Merrifield: I do want to acknowledge the aspect of reputational risk. Having done my ICD director training and having been on boards for literally the last 20 years, I do understand that there’s a huge reputational risk.

Even outside these walls, there is more pressure on corporations today through ESG standards and measurements and new reporting systems, as well as through just the social media aspect of how fast and how much public pressure can happen and can do. I don’t want to undervalue that, but I am asking for the record and just to make sure that we’re clear on what the legislation actually prescribes.

My last and final question on this section will just be: what challenges might a reporting employer face in preparing a pay transparency report as stated, either through the consultative process that was embarked upon by staff…? What has staff foreseen in terms of the difficulties that they might have in reporting? How is that being aided?

Hon. K. Conroy: We’ll be exploring that exact point with employers as we implement the legislation.

Some employers already have robust HR practices, and they’ll find it simple to complete the reporting requirements, while others may have to update their payroll or employee data collection systems. The ministry will strike a balance between ensuring sufficient information is captured to meet the province’s transparency goals while not making the reporting process overly onerous on employers.

We want to make sure that we’re implementing the legislation while working through with employers and having that collaboration with them, too, because the bottom line is that we want to make sure that the information is shared with everyone.

A. Olsen: Looking at clause 5, I don’t think it’s going to be any surprise to the minister that my feeling with respect to the reporting mechanism that’s been put in place here in this legislation is it simply doesn’t go far enough.

With that, I’m going to propose an amendment to clause 5 and add subsection (2).

[CLAUSE 5, by renumbering the proposed clause 5 as clause 5 (1) and by adding the following subsection:

(2) If the pay transparency report of a reporting employer in a year demonstrates pay gaps for any group larger than the provincial average, the employer must

(a) prepare a plan for addressing and eliminating the identified pay gaps, and

(b) submit the plan to the minister, on or before November 1 of the year.]

On the amendment.

A. Olsen: Simply submitting a report will do little to change employer pay traditions. Therefore, it’s important to require that the employer’s actions change, something that I’ve been repeating, I think, with each section that I’ve spoken to. If an employer has pay gaps for any groups larger than exists as the provincial average, a plan for eliminating this gap will be submitted to the government under this amendment.

The Chair: Thank you, Member. We’ll just take a quick look at the amendment to consider if it is in order, and then we will ensure it gets out to all members if it is, indeed, in order.

Thank you, Members. The Chair agrees that this motion is in order, and we will ensure that it gets out to all members for their consideration. We’re going to take a brief recess so that we can consider that amendment and get this to everybody so that they can discuss it.

The committee will be in recess until we can get it out to everyone.

The committee recessed from 5:35 p.m. to 5:39 p.m.

[S. Chandra Herbert in the chair.]

The Chair: All right, Members. I’d like to call the committee back to order. Of course, we are now considering a proposed amendment moved by the member for Saanich North and the Islands.

Are there any speakers to this proposed amendment, aside from the mover?

Seeing no further speakers, I guess we’ll call the vote on the proposed amendment.

Amendment negatived on division.

[5:40 p.m.]

The Chair: Thank you, Members. We are back to clause 5.

A. Olsen: I can imagine that the response that my amendment would have got from the government would be something along the lines of it being incrementalism at its finest, decades in the making. This is just a modest step forward, an initial step forward from a place that, frankly, this provincial government was standing in two decades ago.

I just want to read something into the record here at this point, from the Hon. Joan Smallwood, going back to April 10, 2001.

“I’d like to speak briefly about the history of the journey women have undertaken, both in this province and much further afield, to get us to this point in history, and I’d like to frame that on the comments from the member for Richmond-Steveston, who says that this is a goofball idea. It’s pretty clear that dinosaurs way back in 1915 were raising the same kind of concerns, and I would be surprised if they were not using the same language. While it has been a long journey, there have been some improvements. But it’s very clear that there has to be the political will to bring about the real changes that women need to be able to stand as equals in our society.

“Back in 1915 Helena Gutteridge convinced the Vancouver Labour Council that they should include in their constitution a reference to equal pay for work of equal value. Helena continued to work and in 1919 brought women in labour together with women’s groups. That culminated in the very first minimum wage act in British Columbia.”

This has been a long, long journey, one that…. The pace of incrementalism that we’re dealing with on this, the idea that we can’t amend this legislation to include stronger reporting requirements, to include any kind of enforcement whatsoever in this legislation…. That’s not included in the incrementalism.

Evelyn Gillespie said: “The undervaluation of women’s work has gone on so long that it seems as if it is a truism.” That’s what it feels like in here today. We’re protecting some kind of truism. She continues: “It reminds me of that saying that if you tell a lie long enough, it starts to become the truth. At this point in the game, who would be willing to eliminate a good and dependable pool of cheap labour?”

Where does that leave us? It leaves us…. It leaves government with the obligation to act.

This is not new legislation. Our friends at the federal level have introduced pay equity legislation. Ontario has introduced pay equity legislation. Quebec has introduced pay equity legislation which covers both the public and the private sectors. There’s a lot to learn from those provinces in the same country.

What’s the excuse not to act? Well, there is no excuse. It’s time to act. It’s time to correct the wrongs of the past. Just give women what belongs to them and what’s rightfully theirs.

The fact that this amendment failed…. It simply increases reporting requirements and requires businesses, if they are not able to achieve the pay transparency which is required under this act, to put in place a plan to move it forward. It’s inexplicable to me (a) that there was not even a response and (b) that it was not even given consideration by this government.

Clause 5 approved.

On clause 6.

R. Merrifield: Recognizing that there’s a little bit of a time constraint that we’re under, I will try and keep things moving along here.

[5:45 p.m.]

This section, though, does pose a little bit of concern. So I’m going to start with what I think is the hardest question first. That is on privacy. What happens when information is collected?

Let’s say that it’s all accurate. It’s all great information. Let’s say that an employer has 55 employees, and only four of them are female. I know that someone would say: “Well, that just doesn’t happen.” But let’s call it a construction company. That could happen.

What happens when you have such a small data selection for an organization? Then that organization posts on their website as to what their pay scales and their salary scales are, in accordance with the pay transparency reporting. What happens if those females can be identified?

Hon. K. Conroy: Employers will be required to collect gender and other prescribed information from their employees to complete their reports. However, employees will not be required to provide the information.

While the employer must attempt to collect this information from employees, disclosure will be voluntary on the part of the employee in order to protect their right not to disclose sensitive aspects of their identity, if they choose not to do so. Protections under the Freedom of Information and Protection of Privacy Act and the Personal Information Protection Act will apply to the employee’s personal information.

The public transparency report will only display aggregate information about the pay gap within individual employers. The reporting tool will be designed to ensure that individual employee information is masked. If there are less than ten employees in a group that has been reported on, that information will also be masked to ensure privacy.

R. Merrifield: Thank you, Minister, for the answer.

My understanding, just to make sure I understood this correctly…. I do understand that it’s aggregate information, from the briefing that we received. I also understood that it was voluntary. Someone didn’t have to supply, if necessary. So all of that’s great.

The minister is saying now that there is a…. If it’s less than ten employees in any one category, it will not be shown. I guess I would ask how that, then, looks for a company who all of a sudden looks like they only have male employees under the pay transparency report that they are required to post on their website.

I’ll give a scenario to further describe. Let’s say construction company A is posting. They only have four female employees, two of whom are red seal carpenters. There are 20 male red seal carpenters. Then they have two office staff that are the only employees in their role. There are no men in those particular roles. Then the rest of the employees are labourers, etc., and there are no women in any of those categories.

Am I to understand that when the pay transparency report is given back to them, which they are required to post on their website, it will not have any of those females shown because there are less than ten in any of those categories?

On the one that I gave with the alternative example, there would not be males shown on that particular one, or females shown, because there are less than ten in either of those categories. Did I understand that correctly?

[5:50 p.m.]

Hon. K. Conroy: The interests of protecting privacy for individuals is paramount. I thank the member for raising this. It is another thing that we will be having discussions with employers on.

R. Merrifield: Thank you, Minister, for the answer.

My understanding is that this will be something that will be dealt with under regulation, then, and that privacy is paramount to the pay transparency.

Hon. K. Conroy: Protecting an individual’s privacy is paramount. That’s what’s paramount to this.

R. Merrifield: Thank you, Minister. Understood, yes. Thank you for the clarification.

Will the prescribed information collected under clause 6 be different from the information collected under clause 5?

Hon. K. Conroy: This is to be determined through regulation, but we anticipate it will be the same information.

R. Merrifield: Anticipating that it’s the same information, is there any assurance that it will be the same information, or does regulation give it the ability to be different information collected?

Hon. K. Conroy: The intention is that it’s the same. But again, it will be a process that is determined through regulation.

R. Merrifield: Thank you for that answer, Minister.

Section 6, actually, appears to be written in a way that employees must be individually consulted to acquire the prescribed information. Is there not a way that employers could use centralized HR software to collect the information that they need? There are very sophisticated programs out there right now that could easily, with the click of a button, pull all of that together and even do gender specific…. I mean, having dealt with HR computer software in my past life, I can tell you it’s very sophisticated nowadays.

[5:55 p.m.]

Hon. K. Conroy: We will leave it to the employer to determine their methodology that they use. Again, it’s the intent of the legislation that all personal information be voluntarily disclosed by the employee, and employers are reminded of this requirement under the legislation.

R. Merrifield: I guess I’m a little bit confused then now, because it’s written as if it’s the employee that’s doing it. In the minister’s answer, she said the employer could determine how best they wanted to do it, but it was still the employee that had to do it.

Did I understand that correctly, or could the employer, on behalf of the employees, obviously indicating “I’m about to submit my pay transparency report,” submit all of the data from all of their respective employees, or does the employee need to individually input data into the pay transparency report?

[J. Tegart in the chair.]

Deputy Speaker: Minister.

Hon. K. Conroy: Thank you, Chair, and welcome back.

Just to clarify, what I said is the methodology is up to the employer. They can use whatever methodology, like, whatever software program that they might already have or they want to acquire. They can use that. But the information that an employer could have on an employee, because quite often employees will disclose that information when they’re hired…. The employee has to give their consent to ensure that the employer can use that publicly.

R. Merrifield: Understanding that we are limited in time, this will be my last question for right now, and I think we have to stand the bill down.

So the consent that is given is the voluntary aspect of the employee saying, “yes, I will allow the employer on my behalf to submit the information,” but it will be the employer that submits all of the information into the pay transparency reporting.

Hon. K. Conroy: Yes, that’s right.

I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

Hon. K. Conroy: I’d like to ask for a recess.

The Chair: We will have a short recess.

The committee recessed from 6 p.m. to 6:02 p.m.

[J. Tegart in the chair.]

The Chair: The committee stands adjourned to report progress.

The committee rose at 6:03 p.m.

The House resumed; Mr. Speaker in the chair.

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

Hon. L. Beare: I call Committee of the Whole, Bill 12, and ask for a five-minute recess.

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

The House recessed at 6:03 p.m.

Committee of the Whole House

BILL 12 — INTIMATE IMAGES
PROTECTION ACT

The House in Committee of the Whole (Section B) on Bill 12; J. Tegart in the chair.

The committee met at 6:11 p.m.

The Chair: We’ll call the committee to order. We’re dealing with Bill 12, Intimate Images Protection Act. Would the minister wish to introduce staff?

Hon. N. Sharma: Yes, thank you. Joining me here today from the justice services branch, we have Darin Thompson and Kaleigh Johnston. I’m glad that they’re joining me today.

On clause 1.

M. de Jong: A couple of preliminary questions relevant to not just the definition of clause 1 but, really, relevant to the entire bill.

What is being sought here is the creation of civil remedies. At some point, either in her comments in the House or perhaps in press reports that I saw, I seem to recall the minister, the Attorney, making the point that what we’re trying to do here is provide a civil complement to existing Criminal Code provisions.

I thought it would be worthwhile, and I’ll explain in a moment why I think it’s worthwhile, for the Attorney to place on the record a description of how this is different than the existing Criminal Code provisions that I think date back from 2015. It’s when 162.1, I think it is, was placed in the Criminal Code. So maybe we can start there.

[6:15 p.m.]

Hon. N. Sharma: Thanks for the question. It’s really helpful to clarify the two processes.

I’ll start by saying that what we learned, when we were looking at this issue, is that a lot of people don’t come through the criminal process with these types of complaints, although I do acknowledge that there are parts of the Criminal Code that make this conduct unlawful.

The statute in general is designed in a way to really be party-driven, so the person that is the victim of such an act can come forward in a different way. It clarifies the law when it comes to privacy associated with this type of conduct. It gives them an ability to have an actionable wrong in a civil claim related to this and clarifies their remedies associated with it.

We really think that it’s a way to add to the legal landscape and the options for survivors that’s more trauma-driven and trauma-informed and can provide a different ability to get remedies.

M. de Jong: Thanks. That’s helpful.

The Criminal Code creates a crime for the non-consensual disclosure of intimate images. That is a process that involves the Crown pursuing a prosecution against an individual charged with that particular offence or one of the other related offences that exist in the code.

The reason I wanted to ask the question is that in some of the reporting that has taken place since the Attorney tabled the bill, and I’m sure this is the product of a misunderstanding on the part of the people either commenting or the reporters offering their commentary, there is a discussion about how prosecutors might make use of the provisions of Bill 12. I think it’s worth, more so the minister than I, making the point that there is no prosecutorial involvement with respect to the provisions of Bill 12. It is a process that must be initiated either by a claimant or, under the other section, the applicant in the case of injunctive relief.

I thought it would be appropriate for the minister and us in this committee to do what we can to ensure that people understand this is not a criminal prosecutorial mechanism that is being created. It is a civil, as the lawyers say, tort-based approach to providing civil remedies to people.

Hon. N. Sharma: Thanks for offering that clarity. Yes, that’s correct.

M. de Jong: Can I just ask this. I’m going to suggest to the committee and the Chair of the committee that there is a general relevance to what I’m about to ask, and it’s this: does the minister have any data whatsoever on the number of times prosecutions have taken place in British Columbia making use of the Criminal Code provisions that are now, I think, seven or eight years old?

[6:20 p.m.]

Hon. N. Sharma: We have some stats here that I’ll just read out and that are current as of last summer.

Statistics Canada reported an increase in incidents reported to police nationally, from 833 incidents in 2016 to 2,444 incidents in 2021. During this period, the number of reported criminal non-consensual disclosure incidents in B.C. increased from 91 in 2016 to 256 in 2021, peaking at 302 in 2020. In 2022, 21 adults were criminally charged with non-consensual disclosure. That’s up.

Interjection.

Hon. N. Sharma: It was 21. That was up from eight charges in 2016, and that included three youth. Those are the stats that we have.

M. de Jong: That is helpful, and I’m appreciative. Does the information available to the Attorney General extend beyond the charge numbers — the one she gave was 21 — to include whether or not convictions or findings of guilt or innocence followed?

Hon. N. Sharma: Sorry, Madam Chair. I don’t have any other stats at my hand. That’s not to say they’re not out there.

What I can say is that while we’re doing the committee stage, we will look for that. Then if it comes up, I’ll just add it to my comments on whatever section we’re on — because it’s not to a particular section, as is my understanding.

M. de Jong: That would be fine.

The general relevance, I would suggest, relates to the degree to which the government — and, on behalf of the government, the Attorney General and the Attorney General Ministry — believe that the Criminal Code provisions are having an effect, an impact, in imposing criminal sanction. The argument may well be that, for various reasons, the Criminal Code sanctions aren’t having the impact that was hoped.

It’s especially relevant, I think, that the 2,444 figure was Canada-wide and the 256 number was for British Columbia. Of those 256 complaints, apparently, charges were laid in 21 cases. It would be interesting, I think, for the committee to know, in the context of creating this new civil cause of action, whether or not the Attorney has any views or thoughts on why that is so.

[6:25 p.m.]

Are there structural problems with the manner in which the Criminal Code sections 162.1, 164.1, and 162.2 presently exist in the Criminal Code that have made prosecuting these matters more difficult or represent an impediment to prosecuting these matters?

Hon. N. Sharma: I’ll start by saying the general stats that we have and that are in a lot of our materials, which talk about what we think the number of incidents of this type of sexualized violence are, compared to the number reporting. There’s a big gap there. What we also know is that under the Criminal Code, the definition of what is non-consensual disclosure is narrow. It excludes multiple types of known harm — like threats and distribution of altered images, for example.

Then also, survivors — and they have talked about this — have little control over the criminal process and so may be retraumatized by the proof being required beyond a reasonable doubt. Many survivors are just reluctant to go to the police with these types of incidents.

The design of this legislation on a general basis is to be a trauma-informed process, to basically do two things. If you’re threatened by an image and it’s proved to be non-consensual, you can get an order to have it taken down; and you can get an order against social media platforms to have it taken down. I think that was the area that we were stepping into when it came to the gap in the law.

M. de Jong: I genuinely don’t mean this to be argumentative in any way, shape or form, because I think the nature of the discussion we’re having is to try and make sure we’re covering all the bases here and understand the manner in which this is intended to operate, but the Criminal Code provisions do provide for a judge to order a takedown order.

The reason I say that is that, ultimately, whilst I recognize what the Attorney is saying about the reluctance some victims may have for contacting the police to pursue this, the mechanism we are creating here actually requires them to do something far more, either as an applicant or as a claimant. As an applicant, they have to go to a court or a tribunal and follow through on a process, all to say….

The question is for the Attorney. What is it about what we are creating here that makes us think that victims will be more inclined to use this process than the Criminal Code process?

[6:30 p.m.]

Hon. N. Sharma: This answer has a lot of aspects to it. It starts by the research that we did and the consultation that we had with organizations that were representing survivors, including people like Carol Todd, to understand what the gaps were and what was needed in order to help people come forward with these types of claims.

What we understood from that consultation is that what was missing is a really survivor-driven process. One of the big differences is that this process is much more in the control of the survivor than a criminal. I know that as a former Attorney General, you understand that in terms of the differences between who lays charges and that whole process.

This is a survivor-centred, survivor-controlled process. It centres it, already, in a different position. Once we started to do that and to think about that, what branches out from that are different ways that that survivor can come forward.

An online process through the civil resolution tri­bunal…. The civil resolution tribunal is known in our justice system as being a low-barrier, low-threshold process that helps to focus people on a resolution. I think that also situates it in a different place.

You can also think about how…. There are different things that we have associated with this legislation that make it easier. For example, if you’re a young person and you don’t want to tell your parents — that’s not something you feel like you can do — you can use a trusted guardian to help you with this process.

We centred it and focused on a trauma-based, survivor-driven process. It helps to add all these other options for people to bring forward and get resolution on their own terms a little bit more.

M. de Jong: That’s helpful. When we get to the relevant sections — a particularly relevant clause is clause 4, as it relates to the applicant — I’ll probably want to ask a little bit more about, practically, the procedure that an applicant can follow.

I think the Attorney makes a good point, particularly for younger people, about the accessibility and familiarity and comfort level that might be associated with an online process. That works to a point, as long as the processes that exist within the tribunal or the Provincial Court or the Supreme Court, for that matter, are responsive to that. We’ll have a chance to talk about that a little bit later.

Just briefly coming back to the existing Criminal Code provisions. I don’t know, and I don’t want to put words in the Attorney’s mouth. Is she or the government or the ministry concerned that the Criminal Code provisions have not responded to the magnitude of the issue and the number of victims that have resulted from this evolving and increasing activity? If so — and it may not have been this Attorney, who is still relatively new in her post — have submissions been made to the federal government?

We heard earlier today about areas of the law where the province has made submissions to the federal government about changes that they are seeking to the Criminal Code. Have submissions been made to the federal government, the federal Minister of Justice, relative to sections 162.1, 162.2 and 164 of the Criminal Code outlining concerns that the province has?

[6:35 p.m.]

Hon. N. Sharma: I’m not aware of any conversations with the federal government with that regard. But I think it’s important to clarify that many other provinces have stepped into this role of a complementary process that’s on the civil side when it comes to intimate images and non-consensual disclosure.

Really, what this is trying to do — and if passed, will do — is add to the tools that are available to people that are in this situation and seeking a remedy. That was certainly the goal of this legislation.

M. de Jong: I don’t want to belabour the point. But as the Attorney has said, this is a survivor/victim–driven process, a new process and one that I think we will find enjoys broad support in this House.

But there is also the notion that someone who engages in this non-disclosure of an intimate image or the threat of a non-disclosure…. The threat of disclosing an intimate image is committing a crime. I did not know what the stats were until I asked the Attorney General. I was interested. But it sounds to me from those stats that for whatever reason, the seriousness that one would wish to convey about this behaviour by labelling it a crime is perhaps not being sufficiently emphasized. The ratio of prosecutions to complaints and the activity would be cause for concern.

So the question is: as the head of the branch of government that is ultimately charged with prosecuting this criminal behaviour, does the Attorney, with the assistance of her staff, believe that there are impediments to pursuing those prosecutions that the federal government should be addressing?

Hon. N. Sharma: Again, this is meant to be adding to our tools for survivors when it comes to resolving these disputes. Many may want to go to make a police complaint, seek the criminal option. That’s, of course, within their ability to do so. But this adds a complementary tool to that process. That’s the goal of this legislation.

M. de Jong: It’s worth putting on the record — again, more important that the Attorney do it than I — that an individual who chooses to contact the police, the investigating authority, to lodge a complaint about this behaviour is in no way precluded from seeking redress as either an applicant or a claimant under what will become this law.

Put another way, someone who engages in this activity of either disclosing or threatening to disclose an intimate image could find themselves subject to a criminal prosecution and a claim for damages by an applicant.

[6:40 p.m.]

Hon. N. Sharma: Yeah, so we may get to this section, or we will get to the section, but I think section 22 of the act really answers that question directly, which is that it explicitly states that no rights and remedies under this act…. They are in addition to any other remedy that might be available.

M. de Jong: Let’s actually, then, go into the definitions themselves. The one I wanted to start with in clause 1 is decision-maker. But I wanted to discuss that. It’s slightly different than what appeared in the Uniform Law Conference of Canada document that I think has strongly influenced the legislation that we have before us. It’s slightly different, but for reasons that I don’t need to explore, because I think I understand why it’s slightly different. The Uniform Law Conference actually contemplates that each provincial jurisdiction has a slightly different tribunal/court process.

The part about their commentary that I did want to ask the Attorney General about goes back to something she said just a few moments ago about this being a survivor-driven process. The Uniform Law Conference, in referencing the courts and tribunal structure, had this to say in their working paper in their draft act of January 2021. They said this. It’s not long. I’ll just read it. They wrote this in the context of commenting upon either tribunals or courts to which a claimant or applicant would apply for remedies.

They said: “Individual jurisdictions may wish to include provisions to assist vulnerable victims, such as child victims and victims of human trafficking, in accessing remedies under the act. These might include provisions for complainants to access legal aid, legal representation or the assistance of an agency like the Canadian Centre for Child Protection.”

I may be mistaken. I didn’t see anything in the legislation that spoke to an entitlement or created an entitlement to assistance for an applicant or a claimant. If I’m wrong, I’m sure the Attorney will point that out to me. Maybe I’ll start there. Is there anything in this legislation that ensures an applicant or a claimant — and as we have discussed, it could be a very young applicant — would have an assurance of access to legal aid or support in order to pursue a claim or an application under this legislation?

[6:45 p.m.]

Hon. N. Sharma: I’ll start by saying that our entire process was designed with the people that you noted in mind. What that means is that by acting differently than other provinces and going towards the civil resolution tribunal, what survivors will have is a very online — even on your cell phone — kind of driven process where you’re able to access it, and throughout, we have a consideration of access to justice and how to make it simpler.

Our rollout will be actually working with front-line workers and organizations across the province that are around the most vulnerable people, whether it’s women that are fleeing sexualized violence or have that kind of an organization that they’re working with. There is that aspect not only in how the process is designed but in how we’re rolling it out.

I’ll also just draw the member’s attention to section 8, which talks about the regulation-making power and the ability of minors to be represented by other people. That helps us to actually think specifically about that issue that you raised.

M. de Jong: I won’t take credit for raising it solely on my own initiative. I am drawing from what the Uniform Law Conference said. Again, I’m not meaning to be mischievous or argumentative. What I kind of took from the Attorney’s answer is that we think this process will be so simple that people won’t need legal aid. If I’m oversimplifying her answer, she can address that.

The Uniform Law Conference certainly took the view that notwithstanding attempts to keep, for example, the clause 4 application process as straightforward as possible, it is a daunting thing for anyone to go to a court, whether one is initiating that process online with the tribunal…. It’s not something that a 30-year-old, never mind a 15-year-old, embarks upon easily.

We’ll have a chance to explore the procedure that the Attorney contemplates being in place. For now, the question is fairly straightforward. I don’t see anything in the statute that provides assurance. Maybe that’s not the place where you would expect to see it, but I don’t see anything in the statute that provides assurance of legal aid assistance to an applicant or a claimant. If I am correct in that, what assurance is the Attorney prepared to make here that an applicant or a claimant would receive that legal aid assistance?

Hon. N. Sharma: I’ll start by saying that what I forgot to mention last time is that for a lot of the provinces, when they enacted similar legislation, the place to do it was their superior courts. So it’s already a departure to go with the civil resolution tribunal. I’m sure, as you know, the process for the civil resolution tribunal is really designed for self-represented litigants or to be as low barrier as possible.

[6:50 p.m.]

That being said, there are a couple of assurances that I want to make clear. One is that during the implementation, we’re exploring services and supports for people who require more help. We don’t consider it necessary to put it in the legislation, and that’s not a usual thing. I know that this year, too, we’ll focus on making it as accessible as possible, and that will be part of our rollout.

Just to reiterate the section that I mentioned, section 8, that talks about the most vulnerable, which is minors, and the way they can have other people help them bring forward claims.

M. de Jong: All right. Again, my intention is not to belabour this. I think what I was probably looking for….

By the way, I’m not arguing with the Attorney’s observation that legislation is not necessarily the usual place where one would see an assurance or a guarantee of legal representation. I’m not arguing that point, but I was providing an invitation to the Attorney. In the context of the kinds of victims we have been talking about…. The Attorney points to clause 8 and the ability to have someone help. The civil rights tribunal is one venue. The Provincial Court is another. The Superior Court is yet another that is contemplated.

For her and I, maybe more her than I when it comes to online approaches, these might not be overly daunting exercises. For someone who is in the midst of a trauma associated with an intimate image that they’re trying to have…. Sitting down and navigating through even a fairly straightforward process that will include terminology that is foreign to the average person….

So this was my invitation to the Attorney to at least provide some indication, some assurance, that a victim, a survivor, will have…. The government will ensure that there is a mechanism in place by which, in short order, they can secure legal assistance. I’m not sure it would even need to be a lawyer or a paralegal who could quickly walk them through this process and assist them and that there would be some funding in place.

We are, it seems, for all the importance and, in some cases, tragic results, we were talking about…. We are hopefully talking about a fairly limited number. As word gets out and the liability becomes…. I think part of what we’re trying to do here is reduce the number of instances when this is required. Hopefully, we are talking about a diminishing number of cases, and this really was my way of inviting the Attorney to take advantage of the opportunity to say, “Yes, the government contemplates providing fund­ing” to ensure that, for an applicant or a claimant who requires some legal assistance, it will be there for them either by the Legal Services Society or some other agency.

Hon. N. Sharma: Okay. I think I answered the question previously. We’ll be exploring supports and services that are available to people going through the process. I don’t have anything to announce today.

I will just say, briefly, that, yes, a big piece of this legislation is deterrence, and I’m glad that the member raised that.

With that, I move that the committee rise and report progress and ask leave to sit again.

Motion approved.

The committee rose at 6:55 p.m.

The House resumed; Mr. Speaker in the chair.

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

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

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

Hon. S. Malcolmson moved adjournment of the House.

Motion approved.

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

The House adjourned at 6:57 p.m.