Legislative Assembly of Ontario

RETAIL BUSINESS ESTABLISHMENTS STATUTE LAW AMENDMENT ACT, 1991 / LOI DE 1991 MODIFIANT DES LOIS EN CE QUI CONCERNE LES ÉTABLISSEMENTS DE COMMERCE DE DÉTAIL

CONTENTS

Monday 4 November 1991

Retail Business Establishments Statute Law Amendment Act, 1991, Bill 115 / Loi de 1991 modifiant des lois en ce qui concerne les établissements de commerce de détail, projet de loi 115

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

Chair: Cooper, Mike (Kitchener-Wilmot NDP)

Vice-Chair: Morrow, Mark (Wentworth East NDP)

Carr, Gary (Oakville South PC)

Carter, Jenny (Peterborough NDP)

Chiarelli, Robert (Ottawa West L)

Fletcher, Derek (Guelph NDP)

Harnick, Charles (Willowdale PC)

Mathyssen, Irene (Middlesex NDP)

Mills, Gordon (Durham East NDP)

Poirier, Jean (Prescott and Russell L)

Sorbara, Gregory S. (York Centre L)

Winninger, David (London South NDP)

Clerk: Freedman, Lisa

Staff: Beecroft, Doug, Research Officer, Legislative Research Service

The committee met at 1537 in room 228.

RETAIL BUSINESS ESTABLISHMENTS STATUTE LAW AMENDMENT ACT, 1991 / LOI DE 1991 MODIFIANT DES LOIS EN CE QUI CONCERNE LES ÉTABLISSEMENTS DE COMMERCE DE DÉTAIL

Resuming consideration of Bill 115, An Act to amend the Retail Business Holidays Act and the Employment Standards Act in respect of the opening of retail business establishments and employment in them.

Suite de l'étude du projet de loi 115, Loi modifiant la Loi sur les jours fériés dans le commerce de détail et la Loi sur les normes d'emploi en ce qui concerne l'ouverture des établissements de commerce de détail et l'emploi dans ces établissements.

Mr Poirier: Minister, last Tuesday, when I started talking about this particular Liberal motion, I mentioned that there were three different points among many that we heard throughout the summer. Unfortunately you were not able to hear and maybe with your bill for the House, you may have to leave soon. That is understandable, sir.

I wanted to tell you that of the first two points I discussed last Tuesday, one was for future businesses. For example, a group in Peterborough were seeking some amendments so that those planning some future businesses based on tourism and/or a tourism sector could come forward because they need to know from their potential clients if they would be open and what the type of schedule would be. That, of course, will influence potential clients and leasers of those businesses as to whether they are interested in that future project; whether Sunday business is open to them as per your bill. From what I can see, that concern has not been addressed and I find it very sad that a lot of people across Ontario who are very involved, and want to get jobs and businesses going in Ontario, will not be considered for a Sunday possibility in the tourism sector because they do not actually have the business now. You will have to deal with that at a future date, I am sure.

The second point I talked about, as you are quite aware from the press release last week, concerns the discount drug store associations and the 3,000 people who by all accounts will probably lose their jobs if they are not able to open on a Sunday.

The third point is something I have talked to you about very briefly because I knew I was going to elaborate on it today. Mike Anderman made a presentation in August when we were in Toronto, and his seven-page presentation really caught my attention. It started off by saying, "Rights currently available to both Jewish and Christian store owners under the Ontario Human Rights Code will effectively be taken away from Jews" -- and others who do not respect Sunday as their day of worship -- "under Bill 115."

Having talked about rights, minorities and specialty groups with some NDP friends for a long time, I was always under the impression that even though they may be from a political party other than mine, this was something extremely important to them. They would not want to be part of a bill that would openly discriminate, especially when you are looking at the Ontario Human Rights Code, from one group to another, from the majority to the minority. This really started me asking questions. With the type of Ontario we have right now, that we are about to have and that is very much under rapid change and even more rapidly escalating change, still for the majority in Ontario, Sunday is the day of worship and the day of rest and I have no problems with that.

I would like to have a day of rest myself once in a while, but that is not necessarily the case with MPPs who work seven days a week and cannot plead under the Ontario Human Rights Code to have a day off or 38 or 36 consecutive hours. But for others who may be Jewish, Seventh-Day Adventists -- and I have good friends who are from that persuasion -- Muslims, their day not being a Sunday, it is rather interesting considering what your own party is doing with everything else right now in government. In all your other bills you seem to be taking that into consideration; but there is somebody somewhere in government, whether in your office or the Premier's office -- I do not think it is you personally, I am sure of that. I am sure you are not very comfortable with the fact that Jews and other non-Sunday-worshipping Christians or non-Christians do not have the same type of protection.

I have said publicly before: that the part of Bill 115 I like is to make sure workers who do not want to work on Sunday are protected. There are two particular groups I want to reassure at this moment: those people from the United Food and Commercial Workers union and people from the Lord's Day association. I really appreciated what they had to say to us throughout the different presentations this summer. I listened very attentively to what they had to say. We have with us here a good friend of ours who has been a constant companion, Les Kingdon.

I wanted to tell Les and others that I appreciated very much their input and efforts and I respect that belief very much because deep down it would be nice if we could all have the same common day of pause and it would be very nice if we had this time off collectively as a majority. I would prefer to see all of Ontario take a common pause day to be able to do the things we dream about, especially ourselves, working 110 hours a week. That, I guess, would be my first choice ideally, to have a common pause day on a Sunday.

I have dreamt for that, but obviously when you come to government you realize you do not only represent what you personally dream about, you also have to take into account the incredible changes happening in Ontario that you sometimes do not agree with or do not support, or whatever.

This particular one I have a bit of a hard time with because in his presentation he was explaining very carefully that it is a discriminatory result and not a discriminatory intent. Obviously, the ministry involved with Bill 115, the Solicitor General, and individuals, did not have an intent whatsoever to be discriminatory with Bill 115. Obviously not, and I would never have accused them of that. But there is a discriminatory result with Bill 115 that is rather interesting to say the least. He said in that presentation, "But discrimination against minorities is just what Bill 115 will accomplish." He goes on to say, "It imposes economic penalties on Jews and others wishing to observe the Saturday Sabbath or other non-Sunday day and who also wish to work, shop and open a business on a Sunday."

With the changes we have seen in attitudes in the last year in a lot of people who have had a second look at how they personally feel or how they would like to see Ontario feel about this particular point, they have a point. I am not comfortable with supporting a law that imposes those types of penalties or discrimination, even though they are not intended, on people who do not have Sunday as a day of worship or a day of rest. They were saying Bill 115 is an absolute right to Christians but not to Jews and others, and that Jews and others will be stuck with the weaker rights available under the Human Rights Code as opposed to the protection given to Christians who do not want to work on Sundays under Bill 115. That is rather interesting.

If I were a Jewish store owner, I would not open on a Saturday because of my religion and I would not be able to open on Sunday because of Bill 115. Therefore, I would not be able to open for part of the weekend like others, and Christians are able to be open on a Saturday. A Jewish store owner must either sacrifice his religious principles or his employment and I find that rather interesting.

Obviously, Sunday closing of retail businesses, except in tourist areas as was mentioned, limits the range of goods that Saturday Sabbath observers can buy on the weekend, and limits the job opportunities for Saturday Sabbath observers. I would like to be privy to a meeting between the Solicitor General or any member of the NDP government and a group of Jewish store owners, Jewish employees, Jewish supporters, Jewish constituents, Muslims, Seventh-Day Adventists or any other religion that does not have Sunday as its day of worship. What will they be able to explain? Well, the majority rules.

Tradition in Ontario is that Sunday is the common pause day, the common day of religious observance for the majority in Ontario. Obviously, Ontario was more of a Christian province in the past, but this is changing rather rapidly and the consideration this particular government and party has said it would have for minorities, specialty groups, other religions and whatever, I do not think is coming through in Bill 115.

It is very disturbing that Bill 115 is going to impose on Jewish-owned stores a mandatory closing on these Christian holidays. I think the attitude of the vast majority of people in Ontario today is: "I can practise my religion and you have yours. My day may be Sunday, yours may not be Sunday. It may be Saturday, Friday or whatever day it may be." I think more of a change in attitude is present today than Bill 115 will respect.

One of the points Mike was making was that a higher standard of religious consistency and sincerity is placed on Jews. For Jews under the Ontario Human Rights Code to opt for Saturday Sabbath observance, they must be consistent with sincerely held religious beliefs. This is a higher standard of religious consistency and genuineness than will be required of Christians who do not want to work on Sunday.

It is rather interesting that we have this religious differentiation among Ontario citizens today. I am not Jewish, I am not Seventh-Day Adventist, I am not Muslim, but still I come from a minority, albeit linguistic this time, and when I look at Bill 115 and what it is going to do, it is rather interesting that the government would want to pass this and not worry about the consequences and how they will have to explain it to people of other faiths who have days other than Sundays as their day of worship.

The tradition of Sunday as a day of rest was forced on minorities and those who reject religion by government law." That is quite true. In days past the majority's views held a lot more weight than we see today. It says here: "The NDP's choice of Sunday as a common pause day continues, by another name, the religious discrimination of the past against Jews and other minorities. As such it ignores and diminishes the rights and status of those who do not observe Sunday as part of their tradition."

I cannot fault that; he is quite correct. That is very disturbing when you consider the trend to Ontario's multicultural and multilingual attitude about its own society today and the way it is rapidly changing. Those who have not yet adopted that philosophy will soon see that a majority of the people of Ontario will see it that way.

I just wanted to bring that last point forward. Having spent all that time touring Ontario a day at a time or being in Toronto listening to other groups and individuals --

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Mr Mills: A wonderful summer.

Mr Poirier: A wonderful summer, but obviously a summer with a lot of frustration for a lot of the groups that were coming forward for the third time with their third brief to three different governments in a very short time to talk about what they feel they would like or not like on Sundays.

Obviously my friends of the NDP, now that they are in government, realize that they cannot please everybody all of the time and have an all-inclusive bill on whatever topic they want to choose where everybody is going to come forward and say, "Congratulations." It does not work that way.

I like to judge politicians and I like to judge bills as to how history books will look at all this, say, five, 10 or 20 years down the road. With the changes that are now happening and will be happening in Ontario society, when you extrapolate the rate at which change is happening and how society wants to organize its life, the way it wants to do it without government intervention and, with all due respect to those groups who want Sunday and have Sunday as their day of worship and day of rest -- I have no problems with that -- I think the overall history will demonstrate that the best solution, even though it is not perfect and even though in itself it will not resolve all the individual wishes and beliefs, whether religious or others, will be to let society decide for itself, for its own socioeconomic reasons.

But with one bill to protect all workers who want to get their weekly pause for their religious beliefs, no matter when that is -- society is changing too rapidly and too dramatically for the type of imposition Bill 115 is creating. As much as it would be nice to have a common pause day, it is thoroughly unfeasible because it discriminates too much against people's wishes and their religious beliefs to be able to really call it common in the way I define the word "common." It can only be common to a smaller and smaller group of people all the time, and as much as people would want or not want to work on Sundays or their other religious day, I think, as I said earlier, the best solution is to let society decide. I saw too many people who wanted to work. I also saw a lot of people who did not want to work on Sunday, and Bill 115 would have done a lot better to just address the protection of workers -- all workers -- not only for their Sunday refusal but for their religious day observance refusal.

I appreciate my government friends giving us the time to put that on the record, because I will want to use those words in the not-too-distant future. I want to tell my friends in the NDP government that for the next couple of years, until at least the next provincial election, you and we will have to deal with the inadequacies of Bill 115 -- and I say this with respect, and I know they know that -- because it does not correct what you have perceived as being the shortcomings of the Liberal bill. I must admit that personally I have gone even beyond that. Let the people themselves decide what they want to do, whether they want to shop or work or recreate themselves on a Sunday or any other day. Who the hell am I to tell them what to do?

Mr Carr: I will be very brief. I will be supporting this Liberal motion 3, I believe it is, if memory serves me correctly, for two reasons.

First, I think back to the circumstances the government may not have thought about when it introduced this piece of legislation, the new developments that may be coming in and may be before municipal council. I guess there were two groups that appeared before us this summer that talked about that, one from a developer down in the Niagara region and another chap who appeared before us in Belleville, I believe, with a very detailed presentation of how they were going to expand and put up a wonderful development in the Belleville area.

I will be voting to support this motion because I believe that when the original bill was put forward, there were some areas that may not have been thought about for new developers coming in. I think, if we are going to leave it to the municipality, which is basically what this piece of legislation does, we should give it the option to decide whether new developments will fall into those criteria. To give an area a tourist exemption and then have to go back for a new development I think would be a time-consuming bureaucratic nightmare, so I will be supporting this particular motion.

Mr Sorbara: Just a point of clarification: I am glad my friend Mr Carr is supporting the amendment, but I think we were talking about two different amendments. The one you were talking about had to do with carrying on business or proposing to carry on business.

Mr Carr: I will be supporting that one as well.

Mr Sorbara: That is good. I just wanted clarification on it.

Mr Carr: It is number 3, right?

Mr Sorbara: We are on number 3. I suspect the government members are going to remain silent on this motion. I would have preferred that they were able to support this, even though it does not go along in every single way with the discipline and policies of their party. This would have made Bill 115 a workable piece of legislation in communities throughout Ontario. I suspect, because I have heard nothing else, that the government members are going to vote against it.

Mr Morrow: On a point of clarification, Mr Chair: I just want to clarify that --

The Chair: There is no point of clarification. Mr Sorbara.

Mr Sorbara: Of course, I tell my friend Mr Morrow, I did speak to this, and there is no rule to prevent someone from speaking a number of times on any particular amendment.

Interjection: Gord spoke to this.

Mr Sorbara: I am sorry, Gord spoke to this. I missed that speech. I regret that, because he is one of the best speakers in the Legislature. He is wrong in what he said, but he is a very good speaker.

I propose that the government reconsider, that the government members think about what benefits they could bring to communities all around the province by supporting this. I want to tell you, sir, I am going to be supporting it and I urge all members of this committee to do the same.

The committee divided on Mr Sorbara's motion, which was negatived on the following vote:

Ayes -- 4

Carr, Harnick, Poirier, Sorbara.

Nays -- 5

Carter, Mathyssen, Mills, Morrow, Winninger.

Mr Sorbara: The solidarity among the government members is a little discouraging, particularly as your Premier talks more about free votes and greater responsibilities, but, oh well, I guess that is for the hustings and not for the real world of formulating public policy. Is it my turn again?

The Chair: First of all, the motions on pages 5, 19 and 24 will fall because of this one, because they are all tied in.

Mr Sorbara: If you will just bear with me for a moment. Who has a pen? You brought down a lot with that one, did you not?

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Mr Morrow: Mr Chair, can you clarify that please?

The Chair: They are all tied in with this same amendment.

Mr Morrow: So they are all being debated now, or have been debated now?

The Chair: They will not be. Take them out of your book.

Mr Morrow: I like that. Is that pages 5, 19 and 24?

The Chair: Yes.

Mr Morrow: Thank you very much. That is what I was trying to ask.

The Chair: We will now move on to page 4.

Mr Sorbara: Prior to moving on to page 4, I want to have it confirmed from you, sir, that the motions on page 1 and page 2 remain stood down and that we will deal with those subsequent to today's business.

The Chair: That is correct.

Mr Sorbara: Before I move this, just let me explain to the committee, by way of preface, why I am moving this. If I can direct your attention to subsection 4(2) of the act, as proposed in subsection 1(1) of the bill, it says: "The council in passing a bylaw under subsection (1) shall take into account the principle that holidays should be maintained as common pause days."

What a lovely thought. The problem is one we have alluded to and spoken about for a number of weeks in this committee: that unless this bill defines for municipal councils what the government means by a "common pause day" with a statutory definition, this little piece of devilish drafting is going to drive municipal councils crazy.

My good friend the Solicitor General, as a former mayor of one of the great municipalities in the province, Oshawa --

Hon Mr Pilkey: He is talking sense; listen to him.

Mr Sorbara: The Solicitor General acknowledges that I am talking sense. You cannot have this section unless you define what "a common pause day" means. We would support this section if we could define "common pause day" by saying, "a day when people are free to do as and what they please, including shop on Sunday," or some other definition suggested by the government. In the absence of a statutory definition for the phrase "common pause day," it is going to be terribly difficult for any municipal council to have any real consistency in dealing with applications for a bylaw.

We have argued this, we have asked for a definition, we have asked for a working definition in the committee, and Mr Mills, the parliamentary assistant, who apparently wants to speak on this, has refused to give us a working definition. The Solicitor General refuses to provide a statutory definition; and what are we to do? What are municipal councils to do when they do not know what the government means by "common pause day"?

Bob Rae had great political fun arguing for a common pause day during the campaign, and he had great fun during the considerations of Bills 113 and 114, while he was in opposition, saying that his party believes in a common pause day.

The United Food and Commercial Workers know what a common pause day is, at least in their mind. They believe that it is a day when most people do not have to work and most businesses are not open. That is a reasonable definition. I think it is one that Gerald Vandezande would like. Do I get a confirming nod? That would in his view be a common pause day, and frankly in my view that would be a good definition of a common pause day. But this act, as it is set out, does not create a common pause day. It allows for a few businesses --

Mr Morrow: On a point of order, Mr Chair: What motion or what amendment are we speaking to at the present time? There is no motion or amendment on the floor, is there?

Mr Sorbara: Oh, that is shocking. He is right.

The Chair: There is no motion yet.

Mr Morrow: Thank you very much, Mr Sorbara.

Mr Sorbara: I acknowledge that we have not yet moved the motion.

The Chair: Mr Sorbara was going to do a quick prelude.

Mr Sorbara: I fear, sir, that as soon as I move this motion, our very competent clerk will whisper in your ear, you will get off your political motorcycle, for a moment -- I regret that I missed that debate -- and make a ruling. So I will just end by saying that if the government had the courage to put in a definition of a common pause day, even if it were to adopt Gerald Vandezande's definition or the United Food and Commercial Workers' definition, at least there would be some consistency in the bill. This bill, in the absence of a real definition, is a fraud because it does not create a common pause day. It allows, under some interpretations, virtually any business that wants to do so to apply and get permission to open, and from another perspective it will deny many businesses that ought to stay open on Sunday the right and the opportunity to do that.

When under those circumstances you put forward substantive provisions like that and you fail to define a common pause day, you are going to create terrible problems for my friend the Solicitor General when next he is mayor of Oshawa, for surely he will not represent his riding for more than one term, because we are going to win that riding next term. But he will return as mayor of Oshawa, and this will create problems for him and every mayor in every council right throughout Ontario. So I will move as follows --

Interjection.

Mr Sorbara: Well, we have woken up Mrs Mathyssen and that is good, because now that it is 4 o'clock it is probably appropriate.

The Chair: Mr Sorbara moves that subsection 4(2) of the act, as set out in subsection 1(1) of the bill, be struck out.

Mr Sorbara: I was expecting a ruling from the Chair that the motion is out of order, because -- well, do you want to make an argument?

Mr Morrow: No.

Mr Sorbara: Let's hear your arguments as to why it is out of order. I am not going to make the arguments.

Mr Mills: It is not within the four corners of the bill.

Mr Sorbara: I have had my say on it, and I want to say no more. I simply think you are creating very serious problems for municipal councils when you ask them, as this section asks, to maintain holidays as common pause days and you do not tell them what common pause days are. I would appreciate, as debate arises on this subsection or this motion or this amendment, that at least one of the government members has the courage to put forward in debate a working definition for municipal councils of "common pause day."

This is going to be litigated. Gerald Vandezande is going to take some municipal council to court when it grants a bylaw allowing, say, the Eaton Centre to open, saying that they have not fulfilled their statutory obligation to maintain a common pause day. Then the courts are going to say, "It's up to us now to define what a common pause day is." Surely the government ought to have the courage of its convictions and put into statutory language what it means by "common pause day." I do not know what it means; the general public does not know what it means; the shopkeepers do not know what it means; the courts do not know what it means; Gerald Vandezande does not know what it means. Surely we have an obligation to tell everyone in this province what you mean by "common pause day" in subsection 4(2).

Mr Mills: Is this out of order, Mr Chair?

The Chair: No, it is not out of order. Further debate, Mr Carr.

Mr Carr: Since it is in order, I will speak to it. I will start off by saying I will be supporting the motion. This particular clause that is being referred to, I do not believe you can legislate it. I do not believe it has been clearly defined, even though we asked for it during this period. I do not think this bill will allow it to happen, even though that is the intent. I do not think that is what will happen if this bill passes, notwithstanding some of the changes that have occurred. I do not believe you can have a statutory definition of this, and as a result I will be supporting the motion.

Mr Mills: I would just like to say that during the summer tour, if my memory serves me right, this was the daily favourite question of yourself, Mr Sorbara, or one of your colleagues: "Give us the definition of a common pause day." I think I said at that time that if you do not know what the common pause day is along with the rest of the population of the province, I apologize, but you are out to lunch, because --

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Interjections.

Mr Mills: Let me have my say -- because the council in passing the bylaw under subsection (1) is going to maintain the principle that holidays are to remain as common pause days.

Mr Sorbara: Does that mean the store can open or close?

Mr Mills: The principle of the holidays. We in Ontario have come to know that the common pause day is Sunday. I mean, the buses do not run, the trains --

Mr Sorbara: They certainly do. The buses run all day Sunday.

Mr Mills: It is limited.

Mr Sorbara: Oh, heavens.

Mr Mills: Do not keep interrupting me.

The Chair: One person at a time, please.

Mr Mills: Do not keep interrupting me. The schools --

Mr Sorbara: You are talking nonsense.

Mr Mills: The schools are closed. Are the schools open on Sunday?

Mr Harnick: Schools are closed on Saturday too.

Mr Mills: Yes, but --

Mr Harnick: Why do we not have Saturday as a common pause day?

The Chair: Order, please. Order.

Mr Sorbara: There is a little interjection calling upon the help of the Lord on the Lord's Day.

Mr Mills: I would like to go on, Mr Chair. When this was brought to the Supreme Court of Ontario, it had no difficulty in recognizing the terminology of the common pause day as being Sunday. It did not have any difficulty with that. In the course of the discussions, it accepted that concept -- that is the Supreme Court of Canada. It accepted the concept that the common pause day is Sunday. The definition adds nothing to the efficacy of the legislation, and I do not believe the discussion we are having here actually falls within the four corners of Bill 115. I do not think we should be talking about it, and that is it. If we do not know, Mr Chair, what the common pause day is, well, I am wondering where we are all at.

Mr Harnick: I just want to respond to the Liberal amendment, and I am going to be supporting that amendment. I do not believe in a common pause day in Ontario because there is no such thing as a day that is common to everyone. You can call it a "pause day" or an "enforced pause day," but do not call it a "common pause day," because it may be your pause day but it is not my pause day. The term "common pause day" is, to say the least, misleading.

I also refer to the fact that when I asked the minister, who is here, what the reason was for picking Sunday as a common pause day, he said it was tradition. Well, I do not know what tradition that can be, other than a religious tradition, and he could not tell me either. So I think if you are going to proceed with this piece of legislation, at least call it an "enforced pause day"; do not call it a "common pause day", because that is totally misleading. It is as misleading as the Liberals calling the former Bill 68 the "Ontario motorist protection plan," because it does not protect anybody. This bill is not common for everybody and Sunday is not a common pause day for everybody. So I would urge the minister to at least be forthright about what he is doing and get rid of this idea of a common pause day, because it is not.

The other thing I would like to say -- and I would like to put it to Mr Mills, whom I have the greatest respect for, but I do not know what universe he is living in these days -- that in Metropolitan Toronto, where I live, buses run on Sunday, restaurants are open Sunday, bars are open on Sunday, the Blue Jays play baseball on Sunday, the Argonauts play football. There are concerts in this city on the so-called common pause day. Hospitals are open, doctors are working, nurses are working. Radio stations remain on the air. People work at those radio stations. People watch television on Sunday. Movie theatres are open on Sunday. For God's sake, people even shop in stores that are less than 7,500 square feet on Sunday. I have yet to see one of those people go to hell.

Mr Mills: We are not talking about going to hell.

Interjections.

The Chair: Can we have one speaker at a time? Mr Harnick.

Mr Harnick: I cannot for the life of me see who you are trying to fool by perpetrating this notion of a pause day, let alone a common pause day. I would urge the minister to at least get rid of that phraseology of "common pause day" and recognize that Ontario is made up of multiracial and multireligious groups. The old Ontario of 50 years ago that was all white Anglo-Saxon Protestant no longer exists, but obviously this is the group that this government directs its legislation to. This is the group that this government is going to make a little more equal than the rest of us. I think it is the height of hypocrisy for an NDP government to proceed with this legislation.

Mr Sorbara: I just have two things to say. First of all, I do not appreciate Mr Mills suggesting, in my wondering what the government means by a "common pause day", that I am out to lunch. It is a very important issue. Councils are going to have to ask that question, and no definition has been put forward. The Supreme Court of Canada did not -- I repeat, did not -- have to deal with the statutory phrase of "common pause day." They upheld a bill which dealt with the closing of stores on Sunday and they justified it notwithstanding the Charter of Rights on the basis that it was worker legislation, allowing those workers time off. Extrapolated out of that case was an NDP pseudophilosophy dealing with "common pause day". I regret that he has not been able, through four and a half months, to put a definition on the table. I recommend that we vote on this now.

Mr Mills: On a point of privilege, Mr Chair, I would just like to tell my colleague across the way: I did not mean any derogatory tone in saying that you are out to lunch. It was perhaps an ill-timed phrase that meant you are not with what I perceive to be what everybody is with. I apologize if I offended you.

The Chair: Any further debate on the Liberal motion?

The committee divided on Mr Sorbara's motion, which was negatived on the following vote:

Ayes -- 4

Carr, Harnick, Poirier, Sorbara.

Nays -- 6

Carter, Fletcher, Mathyssen, Mills, Morrow, Winninger.

Mr Sorbara: Does that mean we lose?

Mr Morrow: You lost again.

Mr Fletcher: You had better get used to losing.

The Chair: On to page 6.

Mr Carr moves that subsection 1(1) of the bill be amended by adding the following section to the Retail Business Holidays Act:

"4.3(1) This section sets out the tourism criteria that must be met before

"(a) a municipality may pass an exempting bylaw under subsection 4(1); or

"(b) the Lieutenant Governor in Council may make an exempting regulation under subsection 4.1(1).

"(2) Retail business establishments in a geographic area may be exempted if the area has characteristics which fall under two or more of the following categories:

"1. The area has historical or natural attractions.

"2. The area has cultural or ethnic attractions.

"3. The area provides a concentration of hospitality services.

"4. The area predominantly provides for shopping activities which feature a unified concept or theme, farmers' markets, the sale of heritage or handicraft items, the sale of items unique to the locale or other specialized shopping activities catering to visitors.

"5. The area provides access to hiking, boating, camping, fishing or other outdoor recreational pursuits.

"6. Fairs, festivals or other specific event attractions are held in the area.

"(3) A geographic area may contain one or more retail business establishments and, if more than one, they need not necessarily be contiguous to each other."

Mr Carr: As I stated previously, what we are attempting to do with our amendments is to take the government bill which we see coming through and try to make it something workable, because unfortunately the entire bill, in my estimation, will not achieve its goal. We have attempted to improve upon the government's bill. I wanted to state that clearly. If it had been our choice and we had had the luxury of being in power we would not have brought in a bill such as this. What we are attempting to do is to move the regulations into the bill. The very clear reason for that is because, as has been mentioned on many occasions by a couple of members from the NDP, ie, Mr Kormos and Mr Phillips, during some of the debates over other bills -- namely the Police Services Act -- when you leave things to the regulations, they can be changed at the whim of a few select individuals.

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We all know what happened to the famous oath to the Queen when it was left to the regulations. Something that was popular with the people of this province was changed without debate.

What we are hoping to do with this particular motion is to allow the regulations to be moved into the bill so that they cannot be changed. If, for whatever reason, they need to be, the government of the day will have to bring it before the elected people to do it.

The tourism criteria are the whole essence of this bill. That is why we chose to put that part of it in. It is what everything hinges on. I suspect it will not pass. Obviously I know it will not, because they have already struck the committee of stakeholders to take a look at the regulations; they would not be able to put it in the bill and then have this group going around looking at it. I know this will be defeated. But if we are going to be upfront with the people of this province -- because it is so important to this piece of legislation -- I feel it should be in the bill and not left to the regulations.

I say to some of those people, one stakeholder in particular who is here, you are going to be attempting to look at the tourism criteria with a view to making them tighter, but I can tell you, the government of the day can make a decision to change it with one stroke of the pen later on because a poll happens to change or the weather happens to change or a particular area needs support, and this particular illustrious group will never get a chance to debate it here again.

Some of those in the stands may say that is a good thing, but I personally do not, because all of us who sit on this committee are accountable and can be accountable with our very jobs next time if we do not do a good job. If the reality were known how the regulations get pushed through by some of the officials, if the truth were known, I think the public would be shocked by the number of things that can get through. The regulations are fundamental to the bill.

I wish those stakeholders good luck in their deliberations. The group that is going to be making the decisions is going to have a very difficult task. I wish this could have been done before the bill had been introduced, and I must say at the present time, I think what happens sometimes is that political motives get in the way. If we had sat back, had this wonderful group come together -- some of whom are here -- and done this, and looked at it before, then these particular regulations could have been put into law. But in order to please certain groups, for political reasons we rushed ahead with this bill. We did not do it properly like it should have been done.

When the tourism criteria were going to be such an important part of it, and they knew that going way back to the former Solicitor General, we should have had those stakeholders together and made a decision. By this time they probably could have come out with criteria that would have ended a lot of the debate. At least both sides would have known they had had their fair debate on it.

The government could have had the opinion stacked, because obviously going into it you know where each of the individuals stands in his assessment. Each group would have had a chance to convince the other group of the merits of its particular position, and then the bill could have included the tourism criteria. That is what has created most of the problems, and it came as a result of a lot of people saying the government had not done anything. So this bill was rushed through.

We are seeing very clearly now it will not expedite the process, because what will happen is, we will still be going at this particular debate. This is all part of the reason that I felt this particular bill was so flawed. Instead of doing it properly and correctly and letting the stakeholders decide before the bill was introduced, we do it backwards. We are coming at it from a backwards standpoint.

I cannot stress enough to the government members how, when it is so fundamental to this particular piece of legislation, it should be elected officials who will be accountable, who should be making the decisions.

As has been stated before on a number of occasions, these particular regulations can be changed for better or worse as we go along. That is why we introduced this particular motion. As I said earlier, I do not think they will go anywhere. As a matter of fact I would bet the farm on it, because obviously they will not be supporting this.

I really believe it is important -- and if you are going to come with a piece of legislation with the tourism criteria, you should at least have the courtesy -- to entrench it in the law so that it cannot be changed, so that people will know that what they are doing now will be something that will be in for a considerable period of time. That, Mr Chairman, is the reason for the motion and my comments about it.

Mr Mills: I cannot support your amendment for a very obvious reason. What this will do is effectively take away the authority from cabinet to make the regulations.

Mr Harnick: That is precisely the reason.

Mr Mills: That, I may say, is unacceptable to myself and probably to the other members of my caucus.

Mr Harnick: That is right. You guys all believe in the closed-door policy.

Mr Mills: That is really the basic reason.

Mr Harnick: Open politics. It is open to people behind closed doors.

Mr Sorbara: I regret to hear the reasons why Mr Mills, and I presume his caucus, is not going to support this amendment. That is the one reason he should not have given. To say it is important that cabinet, behind closed doors, sets the rules is an entirely inappropriate reason.

I do not intend either to support the motion as moved by Mr Carr, and I want to tell the committee precisely why, but I want to preface my remarks by saying that I think Mr Carr has done a marvellous job, along with Mr Harnick, but particularly Mr Carr, because he has been with us through all of these hearings -- with no offence to Charles Harnick -- in carrying a view on this bill. He attended, I think, all of the public hearings, and he has participated vibrantly in the debate. He has worked very hard to put a position forward on behalf not only of his constituents, but his party and the province, and by and large, I support the thrust of his view on this terrible bill that we are dealing with.

The reason I do not intend to support it is quite simple. I do not believe the tourist criteria should be the only criteria upon which a council might pass a bylaw. The motion that was just defeated -- not the one we just voted on, but the first one we voted on today -- states our position, and that is, there should be two general criteria if we are going to have this municipal option bill, and those two criteria should be tourist criteria and economic development.

I would not, under those circumstances, support a motion that the tourist criteria, provided for through regulation, ought to be enshrined in legislation, because that would deny the province the flexibility to allow tourist criteria to change and develop as we develop a better sense of how businesses will react to this bill. Although I understand the purpose for proposing the amendment, I think probably it is not a good idea to include these criteria in legislation.

Mr Harnick: I am disappointed that Mr Sorbara has taken the position he has, and I would like to put it to Mr Sorbara that he has to recognize that his economic criteria have gone down in the defeat of his proposed amendment, so the only criteria Mr Sorbara has left are the tourism criteria.

Mr Sorbara stated that if they were legislated and became part of the legislation and not the regulations, they could not expand in scope. I put it to Mr Sorbara that the last thing this government is going to do is expand those criteria in scope, and the only way we will be able to keep these criteria as broad as they are now is if they are enshrined in the legislation. I put it to every member of the NDP caucus who is on this committee and the minister as well, if this bill is so good and your marching orders are to go to the wall and pass this bill as it is written without any amendments or any consideration of the Progressive Conservative Party amendments or the Liberal Party amendments, what do you have to lose by making these criteria part of the law?

Certainly your reluctance to do this indicates to me and to the public that you do not really believe this is a good bill. So I urge Mr Sorbara to reconsider. I urge the NDP members who believe this is such a good bill and who have their marching orders and are going to follow those marching orders without any other consideration, if the bill is so good, make these tourism exemption criteria part of the bill itself and not part of the regulations. Thank you.

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The Chair: Thank you, Mr Harnick. Mr Morrow?

Mr Morrow: Just give me a second, Mr Chair, I am having a hard time because I now have to agree with Greg Sorbara.

Mr Sorbara: Oh, my God. Lightning will strike you.

Mr Morrow: I know. I am waiting, Greg. Actually I agree with Gord and Greg, and I cannot support this amendment either, because if we include the regulations in the bill, every time we want to change a reg or bring a new reg in, that means we have to go for hearings. For the first time in Ontario's history we took regulations out on to the road this summer. I think we have made a substantial move. We have done a lot with the regulations. The regulations have gone back to be reworked, and therefore I will not be supporting Mr Carr's amendment.

The Chair: Thank you, Mr Morrow. Further debate? Seeing no further debate, all those in favour of the PC motion? All those opposed?

Motion negatived.

Mr Carr: At least Charles supported me.

The Chair: With this one being defeated, 8, 18 and 26 will be taken away.

Mr Harnick: What about page 23? I think 23 comes out as well, if I am not mistaken. Just to save us all some time so we can get this bill enacted and --

The Chair: Mr Carr has the option whether he wants this one left in or not.

Mr Carr: Let's wait till we get to 23 and we will decide. That will give me time to reflect.

The Chair: Now page 9.

Mr Sorbara: Mr Chairman, may I just beg the indulgence of the committee again and ask that 9 and 10 be stood down and that we deal with 11, a government amendment -- which ought to be defeated, by the way -- and that we deal with 9 and 10 directly after we have dealt with 11. Is that okay?

The Chair: Do we have unanimous consent to stand them down until after we deal with 11?

Mr Sorbara: I have to step out of the room for about 10 minutes, Mark, and you can have your debate.

Mr Morrow: Greg, you have got it.

The Chair: We will move on to 11.

The Chair: Mr Mills moves that subsection 4(6) of the Retail Business Holidays Act, as set out in subsection 1(1) of the bill, be struck out and the following substituted:

"(6) Before passing a bylaw under subsection 1(1), the council

"(a) shall hold a public meeting in respect of the proposed bylaw;

"(b) shall publish notice of the public meeting in a newspaper, having general circulation in the municipality at least 30 days before the meeting is to be held; and

"(c) shall permit any person who attends the public meeting the opportunity to make representations in respect of the proposed bylaw."

Mr Mills: I would just like to put on the record that the intention of this amendment is to delete the requirement for a hearing and to restore the public meeting and notice requirements found in subsection 4(2) of the existing legislation. The rationale behind this is that the current law requires a municipality to hold a public meeting and to advertise notice of the meeting in a local newspaper at least 30 days prior to the meeting, and anyone attending the meeting is entitled to make representations. A formal hearing could intimidate its participants, including small, independent retailers and employees. The reference to a hearing requires, by law, a potentially lengthy, cumbersome and expensive process.

A public meeting and notice requirement compels a municipality to receive the news of those interested in a less formal forum. A hearing will involve formal presentation of evidence and argument, and will inevitably involve lawyers and high-priced experts. It also provides an unfair advantage to those interests with substantial resources to back their position; for example, the larger retail chains. It also alleviates a potentially very onerous administrative and financial burden on municipalities. The lack of a formal hearing can subsequently be addressed by guaranteeing a hearing on appeal before the Ontario Municipal Board.

I hate using this phrase, it is a worn-out phrase, but it ensures a level playing field for all interested parties. Those are the comments I would like to make on this amendment.

Mr Carr: I will not be supporting this motion. I believe that municipalities, under a lot of other bylaws and so on, know how to handle their dealings with the public. On the one hand, the government says it is up to the municipalities to decide whether they are going to be open, the fundamental principle of this bill. It will allow them that power to decide whether they are going to take the tourism criteria, it will allow them to make the judgement on the tourism criteria, which is fundamental to the bill, but then it turns around and tells them on something as simple as a public meeting how they will handle it.

I think it is an offence to most municipalities. I suspect most of them right across this province -- or a lot of them, certainly -- have done a better job in making the public aware of their particular bylaws or anything that they are passing of a controversial nature.

I just think it is a slap in the face to municipalities to give them a tremendous amount of power to decide whether they are going to be open, to lay out tourism criteria that is broad enough and where basically it is up to the municipalities to decide whether they want to be open, and then on the other hand to say, "Now we're going to tell you how you're going to hold a meeting and how many days you're going to have," and so on. I do not think it needs to be done.

Mr Mills talks about a level playing field. I think some of the municipalities and the elected officials will attempt to expedite matters, because some of them may see it as not being an important issue to their particular community, as is the case in Halton, my region. Most of them say they have not had any request to be open, although that may happen once this bill passes and some of the businesses decide to do that.

On the one hand they say: "Here's a tremendous amount of power. It's up to you, you can decide," and then on the other hand they say, "Oh, by the way, here is what you have to do if you are going to hold a public meeting." I suspect a lot of the municipalities will take a look at that and say, "There are the politicians in the Ontario government telling us what to do." I will not be supporting this particular motion.

Mr Mills: In reference to some of the comments that my colleague Mr Carr has made, it is my understanding that when we were on the tour the desire was very apparent from many municipalities for striking out the hearing and the formality of that in favour of a meeting because of the costs and the general feeling that this would be a rather cumbersome and expensive process. I just leave that with you.

Motion agreed to.

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The Chair: I would suggest that we stand 12 down until Mr Sorbara comes down. Do we have unanimous consent?

Agreed to.

The Chair: We are doing the 13 replacement on the yellow sheet.

Mr Mills moves that subsection 1(1) of the bill be amended by adding the following section of the Retail Business Holidays Act:

"4.3(1) Any person who objects to a bylaw made by the council of a municipality under section 4 may appeal to the Ontario Municipal Board by filing a notice of appeal with the board setting out the objection to the bylaw and the reasons in support of the objection.

"(2) The notice of appeal must be filed with the board not later than thirty days after the day the bylaw is passed by the council.

"(3) The board may, if it is of the opinion that the objection to the bylaw set out in the notice of appeal is insufficient, dismiss the appeal without holding a full hearing, but before doing so shall notify the appellant and afford the appellant an opportunity to make representations as to the merits of the appeal.

"(4) The board may,

"(a) dismiss the appeal;

"(b) dismiss the appeal on the condition that the council amend the bylaw in a manner specified by the board; or

"(c) quash the bylaw.

"(5) If one or more appeals are taken under this section, the bylaw shall not come into force until,

"(a) the day all appeals have been dismissed under subsection (3) or clause (4)(a); or

"(b) the day the bylaw is amended in the manner specified by the board under clause (4)(b).

"(6) The board may, without a hearing, correct an error in an order or decision under this section if the error arises from an accidental slip or omission.

"(7) Sections 42 and 94 of the Ontario Municipal Board Act do not apply to an appeal under this section.

"(8) The board shall use its best efforts to decide appeals under this section within the period of time prescribed under subsection (9).

"(9) The Lieutenant Governor in Council may make regulations prescribing a period of time for the purpose of subsection (8)."

Mr Mills: I have one or two comments I would like to make. You can see the time for appeal, where the notice of appeal must be filed with the board not later than 30 days. The board may, if in its opinion the objection to the bylaw set out is insufficient, dismiss the appeal without holding a full hearing.

The powers of the OMB and what it can do: The board may dismiss the appeal, dismiss the appeal on condition or quash the bylaw, and so on.

Under subsection (8), the board shall use its best efforts to decide appeals under this section within the period of time prescribed under subsection (9).

This amendment provides an appeal to the Ontario Municipal Board for anyone objecting to a tourist exemption bylaw passed by a municipality. The OMB may dismiss the appeal with or without a full hearing, may dismiss the appeal on the condition that the bylaw be amended in a specific manner or quash the bylaw, and the bylaw will come into force on the 31st day after its passage unless a notice of appeal has been filed during the period. That is covered under the new subsection (4)(a).

The OMB appeal route will provide a forum for a sober second thought. It will be cheaper, faster and more accessible than recourse through the courts.

The OMB has expertise in dealing with municipal bylaws and it can correct municipal errors by quashing or by requiring an amendment before the approval is granted, and resolution of the issue generally within a 90-day period promotes some sort of certainty.

Those are the comments I am going to make so far.

Mr Harnick: I bet he is going to go for a long, long time.

Mr Chiarelli: I can go for a very, very long time, but I will just go for a long time. I have raised a number of concerns on several occasions with respect to the whole issue of providing appeals to the Ontario Municipal Board from bylaws dealing with Sunday shopping. I think my concerns are substantive concerns. I really believe they are realistic concerns given the present status of the Ontario Municipal Board, given the present backlog of the Ontario Municipal Board in Ontario.

I think it is important to put in perspective what we are doing here. We have a very contentious issue: Sunday openings or Sunday closings, issues of work on Sunday. We have in Ontario some very active, some very volatile and some very effective special interest groups animated around this issue of Sunday shopping. What we are doing is providing these special interest groups with a forum to continue what amounts to a fight. I have said on a number of occasions that this committee and many legislatures and many good legal minds have indicated that we ought not to create forums for fights. We ought not to set one part of the community against another part of the community.

That is why I had previously referred to the report of this committee, which was unanimously adopted, dealing with alternative dispute resolutions rather than tossing people into what is a very adversarial system.

One of the recommendations this standing committee on administration of justice made to our Legislature last June was recommendation 3:

"The committee recommends that the government review present and future legislation and that it build in alternate dispute resolution procedures where they would lead to a less costly and more expeditious resolution of disputes that could arise under the statute. The committee further recommends that alternate dispute resolution techniques be put at the disposal of agencies, boards and commissions in the ways proposed by the Macaulay report."

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As I mentioned last week, we had some of the best legal minds in the country come before this committee to recommend to our Legislature the whole implementation of alternative dispute resolution techniques. What do we have in this amendment by the government?

I think we should juxtapose the recommendation of these legal scholars for alternative dispute resolution mechanisms in new legislation with the comments made last January by John Kruger, the chairman of the Ontario Municipal Board, before the standing committee on government agencies. He talked at great length before a committee of this Legislature on the backlog and the inefficiencies of the Ontario Municipal Board. I am just going to look at one of the paragraphs from the Hansard of that particular committee. John Kruger states as follows:

"The backlog presently exists. It takes 13 months to get a hearing before the board and that is increasing. In this time, what has happened, although the numbers of appeals have stabilized, is that the appeals are getting longer. There is hardly an appeal where the environment does not now enter into it. We are hearing that even on consents. For example, we have in the system at the moment 1,713 assessment appeals. That involves some 37,000 complaints. So the workload on the board is enormous and we have to find better ways of handling this internally and administratively. We have to look at things like alternative dispute resolution, we have to look at things like mediation and all of these methods, rather than just put on more members. That is what we are going to attempt to do."

What this amendment does in reality is push us back into the 1950s, 1960s and 1970s for a solution to the problem. The reason it is imperative from the government's perspective that this legislation be passed immediately is strictly a political imperative. It has to do with having made a promise, then having made a mistake in introducing legislation that was ineffective and then having to find a way to extricate itself from a situation that is politically embarrassing for the government. You know in your NDP caucus that this is a very divisive, very controversial issue, and you just want to deep-six it and get it out of the way because it is a headache to you.

I think the way you are doing it is quite irresponsible. If you were to look at a sensible, reasonable approach, if you were going to have the degree of openings or the degree of closings that you intend to have, knowing it is going to be very controversial when these bylaws are passed, then you are being irresponsible by throwing all these special interest groups and small business people into a very adversarial system.

You have the responsibility of government. You have the responsibility to create an alternative dispute resolution system that makes sense to the players, the stakeholders, that makes sense for the bureaucratic mess that the OMB presently finds itself in, and makes sense for looking at ways of resolving disputes for the 1990s and into the year 2000.

You have not followed the best legal advice that exists in Canada in drafting your legislation. I do not agree with the substance of your bill and the substance of your legislation, but having said that, I think you have an obligation to use a reasonable approach in resolving these disputes. There is no indication on the part of this government that it has any sense of the problem it is creating by foisting this issue on the Ontario Municipal Board.

I am looking for another quote of Kruger's which is very relevant to that recommendation of the alternative dispute resolution recommendation. I want to refer to John Kruger's testimony again before the standing committee on government agencies:

"The state of the board is that we are making our best efforts. Our members are working very hard. Their productivity per member is increasing, but it is just the reality. Our hearings are getting longer and longer in numbers of days. What a lot of people do not realize is that anything that touches land use gets into socioeconomic questions" -- just keep that in the back of your mind -- "for instance, when Mr Farnan, the minister, announced he was going to have group homes rather than incarcerate people. Fine idea; nothing wrong with it. I shuddered, because every group home hearing -- you can imagine what it is like in a community. If it is 12 days of hearings, it is two days of evidence and 10 days of emotion. One of the members sitting here can tell you all about that up in Sault Ste Marie, where we have just been through that."

This is John Kruger, one of the most experienced bureaucrats and administrators in the province, the current chairman of the Ontario Municipal Board, saying that the worst thing you can do to the OMB is throw socioeconomic questions before the Ontario Municipal Board because you are going to get involved in 10 days of emotional arguments and two days of objective, independent evidence.

I am asking you, members of the government, is the question of Sunday shopping a socioeconomic issue? Most definitely. You know what is going to happen to that issue. You know what is going to happen across this province with every bylaw that is passed in almost every community. I ask you, looking at it from the social side, is it reasonable to throw people into an adversarial system? Or I ask the parliamentary assistant to the Attorney General, is it better to look forward at alternative dispute resolution that makes sense, something you are aware of and familiar with? You know this amendment is simply a politically expedient way to solve a political problem. It has nothing to do with doing something substantially beneficial and forward-looking for our society. That is referring very briefly to the sociological side.

Look at the economic side of this particular amendment providing appeals to the Ontario Municipal Board. If I were a small business person in Prescott-Russell or the Bruce Peninsula or wherever and I was a proponent of a bylaw for Sunday openings and I brought forward a bylaw to a municipality, if that bylaw were passed and if there was one objector from my village or community or from somewhere 800 miles across the province who was part of a special-interest group, he could object to the Ontario Municipal Board. What does that do to that small business person who first of all is probably asking for this particular bylaw as a survival measure in a very marginal type of business? What will this process do to that small business person from an economic point of view?

First, you know he is going to have to retain expert counsel to go to the Ontario Municipal Board to respond to this particular appeal, at great expense. For a government that says it is sensitive to the little person, to the small business person, how can you justify doing that to a small business operator and thousands of small business operators across the province? I think it is unconscionable, I think it is unreasonable and I think it is unrealistic to dump this type of process on the people of the province. You are dumping it on small business people; you are dumping it on the Ontario Municipal Board, which does not want it and cannot handle it; you are dumping it on the taxpayers of the province. There is no way that you have any realistic expectation of providing appeals in 90 days, that you are going to be able to provide that with less than $4 or $5 million or more of additional budget for the Ontario Municipal Board.

Do not kid the people of Ontario, do not kid the members of this Legislature and do not kid your own caucus. When your Solicitor General stands up and issues a press release and says that these bylaws are going to be dispensed with in 90 days --

Mr Mills: Right on.

Mr Chiarelli: -- that is plain, unadulterated BS and it ain't right on, Mr Mills.

Mr Mills: What does "BS" stand for? We do not know what you are talking about.

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Mr Chiarelli: The fact of the matter is, anyone who has municipal experience as an elected official, who has experience as a practising lawyer, who has experience in the administration of the Attorney General's office and various other ministries, knows absolutely --

Mr Morrow: Rule him out of order.

Mr Chiarelli: Excuse me. Did somebody say to rule me out of order?

Mr Morrow: No, we were just talking. It's just a joke.

Mr Chiarelli: Oh, you were just kidding.

Interjections.

The Chair: Order, please. Order. One person at a time.

Mr Chiarelli: I think the record should show that the government members think my comments are a bit of a joke and have no substance --

Interjections.

Mr Chiarelli: -- and I think the people of the province will ultimately determine that issue, because the issues are indeed very important to the administration of government, to the administration of municipalities in this province.

As I was saying, I think it is a monumental con job of the first order to suggest in any way, shape or form that these bylaws will be able to be dispensed with in 90 days.

Mr Mills: Wait and see.

Mr Chiarelli: It is a virtual impossibility. One of the government members, Mr Mills, says, "Well, wait and see." I think that you, Mr Mills, are going to have to confront the fact that you are being sold a bill of goods by your minister, and I would hope not by the senior bureaucrats, because I would have to think that you are going against the best advice that is available in recommending that these matters can be dispensed with in 90 days. All of my 18 years of experience in the practice of law indicate to me that it is a virtual impossibility.

I want to mention some additional comments of Mr Kruger in his testimony last January before the standing committee on government agencies, a very extensive testimony, as I am turning the pages. I would recommend it as required reading for the members of the committee.

Another member of the Ontario Municipal Board -- this is not Mr Kruger speaking but Ms Fraser -- refers to some comments by Mr McGuinty at that time:

"Mr McGuinty, there are some points that I would like to draw to your attention. I know when I joined the board and was considering the matter of the backlog and I started thinking about it, my own analysis was that in the circumstances it would have been more surprising if there were not a backlog than if there were, for a number of reasons. This is the analysis that I have come up with, and I have to emphasize this is a personal one. There are an increased number of acts" -- that is statutes -- "that the Ontario Municipal Board is responsible for that can generate appeals to the board. If you look at the number of acts" -- or statutes -- "over the years that we are responsible for, and you can see them outlined in each annual OMB report, you will see that the numbers are growing. I think it is 121 acts" -- or statutes that the Ontario Municipal Board has responsibility for.

So we have basically another experienced person, knowledgeable in these matters, saying that governments have been dumping too much responsibility on to the Ontario Municipal Board. I believe, with this particular issue, you are going to be opening the floodgates.

I also want to refer to a letter which Mr Kruger sent to a small businessman from the city of Nepean. This gentleman came in to see me earlier this year as well as a number of other MPPs. I understand he was able to arrange appointments with a number of MPPs, but of course the most important one for this particular government, Ms Gigantes, was not available for an appointment to see him.

So, unfortunately, he was left with the dregs in opposition to talk to, but he did also get in touch with the Ontario Municipal Board. He wrote to Mr Kruger who, unlike Ms Gigantes, was able to respond personally to this particular small businessman. His name is Mr James C. Ledgerwood, and he is the general manager of Greenside Construction Management Ltd. He is an Ontario land economist. He was quite concerned about the backlog and the process at the Ontario Municipal Board. Mr Kruger, on February 12, 1991, responded to Mr Ledgerwood and this is one of the comments that Mr Kruger made in his letter of only several months ago:

"At the present time, the appeal process is experiencing delays, not so much because of the process itself but because of the current case backlog that the board is faced with and is addressing."

Now, I hear rumours and certain people on the government side mumbling about taking some action to rectify the so-called backlog at the Ontario Municipal Board. I believe Mr Mills mentioned that it would take less than a million dollars to solve the backlog problem and also solve the question of Sunday shopping appeals to the Ontario Municipal Board. I believe the minister made a kind of off-hand comment to me a week or two ago that the Ontario Municipal Board process is being looked after. We have seen no statements made in the House. We have not even seen a press release outside the House, but it is obvious that the government has something up its sleeve with respect to the Ontario Municipal Board process, Ontario Municipal Board funding and generally Ontario Municipal Board hearings.

I believe the government is acting in a very deceptive, non-informative manner with the people of Ontario.

I see Mr Harnick is pointing to the parliamentary assistant to the Attorney General.

Mr Harnick: He's got that funny smile on his face.

Mr Chiarelli: We certainly know that he is going to be making an announcement soon with respect to the Ontario Municipal Board, but the fact of the matter is, on this committee, which is dealing with this issue, we do not have the answers to important questions. The government has not been able to indicate how many appeals it is estimating will go before the Ontario Municipal Board. It has not indicated how much the additional appeal workload will cost the taxpayers of Ontario. In fact, it does not know.

The government has not indicated and has not done any economic impact study as to what this process is going to cost small business people across the province. You are being irresponsible on every account. Now, you might go back into your little secret caucus, or you might have your little secret cabinet go back and say, "Aha, we're going to solve the problem this way or that way," but you have come forward with no information and no facts which justify in any way the process that you are choosing to implement by ramming this legislation through because you have certain political imperatives.

Mr Chairman, I have raised these issues on a number of occasions before this committee. I have indicated the reasons why I believe the government is being irresponsible.

Just a very brief summary: This legislation is totally contrary to the recommendations of the best legal minds in the country with respect to alternative dispute resolution techniques. We have the testimony of John Kruger himself indicating it is imperative that the Ontario Municipal Board look to alternative dispute resolution techniques to solve its problems. We look at Mr Kruger's commentary indicating with respect to one of Mr Farnan's initiatives that socioeconomic issues are the worst types of issues to dump on the Ontario Municipal Board because it ends up with two days of independent testimony and 10 days of emotion. We see the impact it is going to have economically on small business people to have to go through this process. We see the impact it is going to have on the Ontario Municipal Board by adding to the backlog.

We know there is a price the taxpayers of this province must pay by having to provide additional resources to the Ontario Municipal Board, and this government is not prepared to say what the cost to the taxpayers of Ontario will be.

Mr Chairman, I believe my comments are substantive, they are realistic and they are well-founded, and I think the government is being totally irresponsible by moving this amendment to what is substantively, as well, a bad bill.

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The Chair: Thank you, Mr Chiarelli. Mr Carr, further debate.

Mr Carr: This is the one motion I am opposed to more than anything else. When I said earlier in some of the debates that they took a bad bill and made it worse, it was because of this particular amendment. I am surprised it is being done by a Solicitor General who has a municipal background. Somebody who has had dealings and knows what happens at the Ontario Municipal Board above all else should know the problems that have happened there.

The backlog is 12 to 14 months. It is growing steadily. The government will tell us it is going to put resources into it. Our document, that we received from the Solicitor General, the one that outlines the questions and answers, which I have referred to before, says they will spend about a million dollars. They say to the public, "There you go; we're going to put more resources into it."

The problem is that this time, when we are talking about reallocating resources and closing hospital beds, $1 million to fund this particular Ontario Municipal Board at this period of time is in my opinion a complete and absolute waste. The worst possible thing they could do with this piece of legislation, they have done: They have put in another roadblock. The $1 million that is going to be spent, by the way, does not include the amount of money that would be spent on consultants and lawyers and legal fees during this period.

I always wanted to be a lawyer and my hockey career got in the way --

Mr Sorbara: Set your career aims higher than that.

Mr Carr: -- and I guess I had my priorities right at the time. Now I wish I had been a lawyer because I really believe that the people who will be involved in this, and the lawyers and the consultants, will make it very difficult. You are right; I wish I had been like Ken Dryden and I wish I had been a lawyer and with the Montreal Canadiens, and had about eight Stanley Cup rings; but some of us have talent in some areas, some in others. He was better able to stop pucks --

Mr Morrow: Gary, you were a much better goalie.

Mr Carr: -- and I was better able to serve time. Actually, we were compared. Many of you might know that I was compared to Ken Dryden because, as you know, there are two types of goaltenders. There are the ones who are known as a little bit flaky and then there is the tall, intellectual type.

Mr Sorbara: Dryden was intellectual.

Mr Carr: Ken Dryden and I were thought of in that same light, but then again it was only my mum who was saying that.

Mr Chiarelli: Why don't you show this committee what you can do in overtime?

Mr Sorbara: His campaign motto was, "The puck stops here."

Mr Carr: But all of the things that I have been concerned about have come in with this particular amendment.

Interjections.

The Vice-Chair: Order.

Mr Carr: I had the pleasure of witnessing what happens before the Rent Review Hearings Board the other day. I spent some time with the group that was appearing before the rent review board and we basically spent an entire day, as I think I related before, deciding whether it would adjourn the hearings. We had consultants. Each side had two lawyers and a consultant. The public gallery was stacked with about 75 people and we literally spent one full day deciding whether they would even adjourn.

So great ideas, great in theory, "We'll put a board together that will review rents and we'll come to a decision." When it comes to actual practice, it does not work. In fact, the people who were there were disgusted with the whole process, and as they were walking out they were shaking their heads. Unfortunately they are very cynical about the process. They know it is a political process that has spurred that on and they were critical of politicians and the political process as a result.

The same situation with the Workers' Compensation Board: a great idea when we put it in, and as you know, we now have backlogs. Literally, on some weeks our offices spend 60% of the time dealing with WCB cases. What they have done is put one more obstacle in the way. I think the public, when they handed over the tourism criteria to the municipalities, would like to have had a decision on it one way or the other. They wanted to streamline the process and this has just made more of a bureaucratic nightmare.

Regardless of what the decision is, I think people want to have a decision quickly. If they lose the decision that is fine, but they do not want to have the process locked up. The government, I think, wants to point to the process as one of the ways in which it has attempted to hold the common pause day. They will say, "There you go." If one municipality does decide to open they will say: "Well, it wasn't our fault, the municipality wanted to open. We're only listening to the people at the grass roots and the municipality, and by the way, it was appealed to the Ontario Municipal Board and as you know, it upheld it, so our hands are clean."

I suspect that is why this was done, the particular amendment that talks about going before it. I suspect that every municipality which decides to open will have to go through this process. I will bet the $1 million will look like chicken feed compared to what happens.

A lot of times when the people who are involved in putting this together take a look at the costing of it, I suspect they do it in the best-case situations. They do it without taking a look at what happens at the rent review board and the WCB, how they get backlogged, how literally a consultant or a lawyer can tie things up by having delays.

In this particular case that I talked about earlier, the lawyer who was representing one of them was supposed to be at an environmental hearing, so he could not go. They had already had it backed up because one of the other lawyers on the other side had had a death in the family. Now it has been put off and the people who are looking at it are looking at well over a year. The groups that I think will be happy with this will be some of the special interest groups of all sides that are hoping to get another chance to lobby their cause. They will not be content when the municipality spends all the time, effort and energy that it will spend to hear the cases and then will go before another board to take a look at it. It will give them another forum to get their ideas out and to speak about it.

I believe that in this day and age when we are talking about waiting lists at hospitals, when we are talking about the closing of hospital beds, we need to have our resources put to better use. Regardless of how well you say that the money will be new money coming in, I think the money that could be spent on that, if you are going to spend it, would be better spent to get rid of the existing backlog rather than throw more things into the system.

When this particular amendment came through -- and I remember it came through on a Friday across my fax machine at the constituency office -- I could not believe that this was how you were going to proceed. I do not know who thought of it, whose idea it was, what group was pushing for it, although I obviously heard over the summer some of those who were; but whoever in the government has the ultimate decision -- I guess it is the Solicitor General and the cabinet and in this particular government the Premier, because I think he has really centralized all the decision-making processes -- whoever will take the credit, or blame as I believe it will be, is the one who I think has made a tremendous mistake with this.

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It is the worst possible thing that could be done. Over the summer we heard from a lot of people out there. They did not want to come before more government tribunals to hear a process which already is broken at the Ontario Municipal Board level. Why anybody would want to put more cases into the system when it is hopelessly backlogged is beyond me. Unfortunately, this is one of the things that I think make the public cynical about politicians and the political process. They take a look at this and say, "This isn't what was called for, other than through a few special interest groups, but that's who you're listening to."

In a day and age when people are saying there is too much government intervention -- and, by the way, I will say that is true of all political parties, including the fourth, fifth and sixth parties. In the recent polls of NDP members as well, they also believe there is too much government involved in their lives, particularly at the provincial and federal levels. What we have done is we have indicated to them that we are going to put one more obstacle in the way. A lot of the groups say it is almost like a hurdler: You get over one hurdle and another one springs up.

In this day and age with limited resources, I think it is an absolute waste of time. Never, never could I support this. I will be voting against it. I suspect the government has already made the decision, but I would like to see the person who came up with this idea come forward and say, "It was my idea," because I would like to know who we can blame for this. I understand why they will not, because it is the craziest motion that has been brought before this particular committee on this bill.

You took a bad bill and you made it worse with this. I hope somebody will come forward. I know it is not Mr Mills. He is one of those who would I think agree on this, but somebody has made this decision. I hope there will be freedom for some of the members to step out and discuss this and come up with some of their reasons for it. I will be listening very intently to any of the other members who may discuss it, because I quite frankly think that whoever introduced this has made a terrible mistake. I will add that anybody who votes for this particular motion will be making a mistake. Those are my comments on this motion.

Mr Winninger: I would like to reply briefly to certain remarks made by the member for Ottawa West, or the member for York Centre. Sometimes it is hard to tell them apart; they are interchangeable in some respects.

John Kruger, to whom the member for Ottawa West has paid great homage, and who spoke to the --

Mr Sorbara: On a point of order, Mr Chairman: Could I have the member for London South explain that last remark about the similarities between the member for Ottawa West and myself?

The Vice-Chair: That is not a point of order.

Mr Winninger: In any event, I withdraw the remark.

Mr Chiarelli: We are both persuasive in debate. That is what he is talking about.

Mr Winninger: Yes, that is right. I think they both went to the same school of debate.

In any event, I share the tremendous respect which Mr Chiarelli displays for what Mr Kruger has had to say, and he certainly spoke to the standing committee on government agencies on January 22, 1990. The problem is that Mr Chiarelli has not spoken to Mr Kruger lately. If he did speak to Mr Kruger, he would find that Mr Kruger is quite satisfied that he has the resources and will have the members on his staff to deal with these kinds of appeals.

Certainly the forum for appeal is an appropriate one. Who has more expertise in these matters of appeal of municipal decisions than the Ontario Municipal Board? What is cheaper, taking appeals through the courts or taking them through the OMB? What is faster?

Mr Kruger, when he testified before the government agencies committee, indicated that while he acknowledged there was a backlog at the OMB, he was taking positive measures to deal with the backlog. Two of the measures he mentioned at that time were implementing case management and resorting to pre-hearing conferences. My friends from the bar will certainly know how effective pre-trials can be in resolving cases before they go to the time and expense of a full trial. Certainly experience has shown that 75% of all civil litigation is resolved with an effective pre-trial.

Mr Sorbara: You're breaking the back of the shopkeeper.

Interjections.

The Chair: Order.

Mr Winninger: Dealing with some of these disputes in a pre-trial forum will reconcile a number of these issues before one is ever put to the expense of a full hearing before the OMB.

I note certainly with satisfaction that pursuant to the appeals section, the OMB can dismiss without a hearing if there is not a prima facie case on the face of the record. Again, my friends on the opposition side of this committee will appreciate what it means to have or have not a prima facie case. In this particular case, if there is not a prima facie case, there is no need for a hearing. And if the municipality has erred and is merely correcting an error, again, the OMB can deal with it without a hearing.

I hear the bells of the House, and perhaps that is where we should be.

Interjections.

The Chair: This is a 30-minute bell.

Interjection: Can we vote on this amendment?

The Chair: They are having a vote in the House.

Interjections.

The Chair: We will adjourn this meeting until tomorrow.

The committee adjourned at 1727.