CONTENTS
Monday 25 November 1991
Subcommittee report
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:
Revell, Donald Legislative Counsel
Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1600 in room 228.
SUBCOMMITTEE REPORT
The Chair: I call this meeting of the committee to order. Mr Chiarelli.
Mr Chiarelli: I would like to move adoption of the subcommittee report.
The Chair: I will read the report first so it is in Hansard.
"Your subcommittee met on Tuesday, 19 November 1991, and agreed to the following:
"1. Clause-by-clause consideration of Bills 28 and 29 will be scheduled for 25 November 1991. No witnesses are to be scheduled.
"2. Bills 7, 8, 74, 108, 109 and 110 will be considered together. The hearings shall commence with a briefing by each minister involved. All attempts shall be made to schedule these ministers together.
"3. All witnesses will be given one half-hour for their presentation.
"4. All attempts will be made to schedule witnesses presenting technical briefs at the beginning of the hearings.
"5. If there is sufficient demand for any one location outside of Toronto, the committee will consider travelling.
"6. The committee will consider paying the expenses of any witnesses so requesting.
"7. The clerk will write to the House leaders and whips requesting four weeks of sitting time during the winter recess for continued consideration of Bills 7, 8, 74, 108, 109, 110.
"8. The clerk should attempt to schedule the hearings on Bills 7, 8, 74, 108, 109, and 110 in room 151."
Mr Chiarelli moves adoption of the report. Any debate? Mr Morrow.
Mr Morrow: Mr Chair, would it be proper at this time to move an amendment to the report.
The Chair: Yes, it would be.
Mr Morrow: I move that commencing today we move into class action, with comments by the Attorney General and ministry staff if possible. Tomorrow, November 26, we will do public hearings and next Monday, December 2, we move will into clause-by-clause on class action. I believe the bills are 28 and 29.
Mr Harnick: What public hearings is Mr Morrow referring to? I did not know there were any public hearings. I did not know that any amendments were being proposed. Both opposition parties have indicated they support the bill. It is the government's bill; it has been on the order paper now for almost a year.
The Chair: Mr Morrow, can you clarify?
Mr Morrow: We are actually just talking about proper public consultation here, and that is all we would like. Are you now telling me, Mr Harnick, that you do not want proper public consultation on this?
Mr Harnick: Perhaps you can enlighten me as to who the public consultation is going to be with and who requested public consultation for a bill that everybody is consenting to.
Mr Morrow: Let's pass this amendment, and then --
Mr Harnick: No, let's not pass the amendment. Let's come clean and tell me what is going on here.
Mr Morrow: What are you looking for, Mr Harnick?
Mr Harnick: Are you telling me there are people that want to be heard on this bill and have requested to be heard?
Mr Morrow: Yes, obviously.
Mr Harnick: Can you tell me the list of those groups? Then I can make my submissions. Why are you being so secretive? For somebody who is so big on open consultation, tell us who has requested the opportunity to be here.
Mr Morrow: Excuse me. Who is being secretive here?
Mr Harnick: Tell us who wants to be here.
Mr Morrow: I just put an amendment on the floor. Okay? Let's deal with it.
Mr Harnick: I am entitled to ask these questions.
The Chair: Mr Harnick, we have a list of witnesses.
Mr Chiarelli: Have you provided them to the committee?
Mr Harnick: Have they requested the opportunity to attend before us?
The Chair: The clerk has just received the list.
Mr Harnick: From whom?
The Chair: From the Attorney General's office.
Mr Harnick: Is there someone here from the Attorney General's office?
The Chair: Yes, there is.
Mr Harnick: Can I ask someone who these people are, and have they in fact requested the opportunity to be here?
The Chair: The clerk has the list as far as I know, Mr Harnick.
Mr Morrow: The clerk can read the list.
Clerk of the Committee: I could read the list into the record. I have not contacted any of these people at all.
Mr Harnick: Can we get some clarification as to who contacted whom? Or did they phone? Mr Morrow has indicated that they contacted the AG about the opportunity to be heard. I just want to know if that is true or not.
Mr Morrow: Yes, they have contacted the AG as far as I know. David Winninger, being parliamentary assistant to the the AG, may be able to answer that better than I can.
Mr Harnick: Good point. Maybe Mr Winninger can tell us if they contacted the Attorney General.
Mr Winninger: There are several organizations on the list, who appear to have expressed an interest in consulting, in making representations in connection with this bill. The clerk has a list of those names.
Mr Harnick: Perhaps the clerk can enlighten us about who they are.
Clerk of the Committee: I have a list that includes the Advocates' Society, the Canadian Manufacturers' Association, Energy Probe, the Canadian Environmental Law Association, the Canadian Bar Association -- Ontario, Parkdale Community Legal Services, plus three more groups that are interested in making a written submission only.
Mr Chiarelli: A publicity scam by the government, that is what it is.
Mr Harnick: That is exactly what it is. Having spoken to the clerk earlier today and having been told who is on that list, I have now obtained a letter from Andrew J. Roman who is writing on behalf of the Canadian Bar Association -- Ontario. Mr Roman states in a letter by fax transmission dated November 25, 1991:
"Further to our telephone conversation of this morning, this will confirm that the CBAO was contacted by the office of the minister to send a representative to appear before the committee hearing this matter. I have agreed to be that representative, although no specific time has been assigned to me for a presentation.
"I am also confirming that the CBAO did not initiate this request, nor seek to have any hearings. Rather, we hoped that the bill would go to third reading and be passed immediately, as all the stakeholders had agreed to its contents long ago and any proposed amendment could destroy the carefully crafted compromise the bill represents."
I think it is incumbent upon the government members of this committee to understand how this bill was written. It was written in a collaborative effort by the Advocates' Society, the CBAO, the environment people, the Parkdale legal clinic, the Canadian Manufacturers' Association, all of the people the clerk has read out.
This business of having hearings by the people who in fact authored the bill -- because it was not authored by Howard Hampton -- is nothing more than a crash charade. Let's pass this bill. Everybody agrees to it. I do not know why we are playing games here, because that is all we are doing. This is the biggest pile of nonsense I could ever see and, quite frankly, when Mr Morrow stands up and tells me what he did, he is misrepresenting the truth. There is absolutely no reason to have hearings.
Mr Morrow: I want an apology.
The Chair: Mr Harnick, you may want to reword that.
Mr Fletcher: Withdraw.
Mr Harnick: I am not withdrawing. I am not leaving either, because the facts are, and I hold them in my hand, that what you are telling me is not the truth. For some reason the government does not want to pass this legislation. For some reason they want to delay this legislation for ever. There is absolutely no reason to waste people's time to come down here to say that you consulted, because, for God's sake, they wrote the bill.
Mr Winninger: Withdraw the allegation first.
Mr Harnick: I will withdraw the allegation if you withdraw the nonsense of dragging people down here for hearings when nobody wants the hearings.
The Chair: Would you withdraw.
Mr Harnick: You will have to show me in the standing orders where it says I have to withdraw at a committee. I do not think it is in the standing orders. If you can find it, I will withdraw it. But the fact of the matter is, this is nothing more than a publicity campaign for this government, which comes in here and does not tell us the truth. Let's just pass the bill and refer it back.
Mr Winninger: On a point of order, Mr Chairman: I heard Mr Harnick, the member for Willowdale, quite clearly say that Mr Morrow had misrepresented the truth, or words almost to that effect. I suggest that he be asked to withdraw that remark in accordance with the standing order that is about to be referred to.
Clerk of the Committee: My understanding of the standing orders, and I will check this, is that while Mr Harnick can be asked to withdraw it in a standing committee, the only way to censor Mr Harnick would be to report it to the House.
Interjections.
Mr Harnick: If Mr Morrow would now like to have a discussion with me outside, I would be delighted to have a discussion with him.
The Chair: We will call a five-minute recess to see if we can work this out.
The committee recessed at 1610.
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The Chair: I call this meeting back to order.
Mr Chiarelli: I want to make a number of points starting with paragraph 1 of the subcommittee report of Tuesday, November 19, 1991. Last week this committee met as a subcommittee and looked at our agenda over the immediate future. Clause 1 says: "Clause-by-clause consideration of Bills 28 and 29 will be scheduled for 25 November 1991. No witnesses are to be scheduled."
I would like to address the issue, "No witnesses are to be scheduled," and ask how the committee whip, the committee chair and the committee clerk could permit that particular provision to be discussed and adopted last week and come in today, with virtually no notice, with a list of six or eight people who supposedly have either volunteered to come or who have been requested to come. There is complete, total incompetence on the part of the committee and the Attorney General's office in openly discussing last Tuesday the fact that no witnesses are to be scheduled. How could these be gathered together in less than a week and presented to us on what is at best an ad hoc basis? It is done in the guise of public participation.
I want to compliment Mr Harnick for having the whips investigate this particular issue and to table with this committee a letter from a representative of the Canadian Bar Association -- Ontario. It indicates that, no, they did not ask to come before this committee; in fact they want this committee to proceed to clause-by-clause and adopt the bills immediately.
Last week in the Legislature we dealt with six bills from the Ministry of the Attorney General. We debated them, voted them and approved them. As a matter of fact, during debate on the last bills, Bills 28 and 29, which were being debated concurrently, the parliamentary assistant to the minister was filibustering his own bill. Both opposition parties were so co-operative in voting all the Attorney General's bills that in fact at 5:30 or 5:25 we were ready to complete the debate, vote on the issue, and this government had nothing on the order paper to debate or discuss or bring forward. The parliamentary assistant was relegated to filibustering his own bill to take up the time of the Legislature and the legislators and all the staff people for over 30 minutes because they did not properly order their business. In fact,when I hear government members stand up and say, "The opposition is delaying legislation and we can't get anything through because of the opposition," we passed or voted on and approved six items of business and they had to filibuster their own bill.
In this particular instance the government has no amendments to move on these class action bills. The opposition has no amendments to move. The stakeholders, I am sure, have no amendments to move; they wrote the bill. In fact, one has to ask, "Why is this taking place?" It is taking place because this government, this ministry or this parliamentary assistant wants to endear himself to the legal profession. He wants to invite these people to come in to have a love-in for this legislation, which in fact was drafted and presented by Ian Scott, the former Attorney General.
This legislation would have been approved the first week this government took office had you brought it forward for first, second and third reading, yet you waited 14 months to bring it forward. You have waited 11 months since first reading to bring it forward for second and third reading. The opposition agrees. We have no amendments. It is a great bill. It is long overdue. We would have come in here today and voted approval of this bill, which we are still prepared to do.
Mr Harnick: Can you adjourn your remarks for a moment?
Mr Chiarelli: I will in a minute. I want to get my remarks on --
Mrs Mathyssen: Couldn't you save them for the next bit of propaganda?
Mr Chiarelli: I really think there were some strategic decisions being undertaken by the government of undefined nature, which leads us to merely speculate. We thought as a subcommittee we were dealing with the issues in an open, upfront manner. You indicated to us, the committee whip and the chairperson, that no witnesses would be scheduled. We indicated incidentally at the subcommittee hearing that we were prepared to pass the bill right away. We did not even want to have it come back to committee. We were even wondering in the House the day this was given second reading why it was referred to committee. We would have passed it in the House the same day.
It raises a lot of questions. The letter that Mr Harnick has about the reason for wanting to go into soliciting additional comments from the stakeholders raises a lot of questions. It raises questions about the openness of this government, about the motivations of this government, about the motivations and the openness of the parliamentary assistant and the committee whip, and the questions have not been answered up to this point.
I understand there have been a few conversations going on among some of the committee members and there might be additional proposals forthcoming to deal with this particular issue, so we are all ears, Mr Chairman.
The Chair: Thank you, Mr Chiarelli. I might remind you that the subcommittee report is open for debate and amendments.
Mr Winninger: I am quite shocked that the member for Ottawa West would be so opposed to public consultation. I doubt that his party is equally opposed to public consultation.
In any event, in the interests of compromise, I would indicate that the Attorney General did receive three letters, one from the Canadian Bankers Association, one from Parkdale Community Legal Services and one from a law firm in Toronto, Koskie and Minsky, all of whom were advised that they would have an opportunity to comment after second reading of the bill.
In the interests of fairness to these three specific associations, one being a law firm, it suggested that we hear from Parkdale Community Legal Services which is in fact I understand, available to make a presentation to this committee and that we accept written submissions from the law firm of Koskie and Minsky and the Canadian Bankers Association. This would certainly serve the interests of the kind of public consultation that such an important piece of legislation merits. I hope my colleague the member for Willowdale and my other colleagues would be prepared to accept this kind of compromise.
I might just add one note. There may be other organizations that may wish to appear as witnesses on an unsolicited basis, and I am equally confident that my friends in the opposition would not oppose such presentations from unsolicited organizations.
Mr Chiarelli: I just have a very brief comment to make, and that is I am glad to see this government is setting a new precedent, and that new precedent is that there will be public hearings every time there are three written requests for public hearings. That is basically the conclusion we must take from Mr Winninger's comments. We will duly make note of the fact that every time we have a piece of legislation and there are three written requests to have public hearings, this government will accede to that request and grant the request to those particular individuals, and all committees will therefore be having public hearings with such requests in the future.
Mr Harnick: I have listened to what the parliamentary assistant has said and I have no objection to having the brief representations provided by those people who want for whatever reason to put on the record their position, and certainly any other groups of unsolicited individuals who wish to appear here briefly to put their submissions on the record. I say this because I have the assurance of the parliamentary assistant that there are no amendments being contemplated in so far as Bill 28 and Bill 29 are concerned. I know that if there are to be any amendments contemplated, they will be before this committee and will provide anyone who wishes to make submissions the opportunity to do so.
The Chair: Thank you, Mr Harnick. Mr Morrow?
Mr Harnick: May I say one other thing.
Mr Morrow: No.
Mr Harnick: I am just going to apologize to you, Mark.
Mr Morrow: Oh, go ahead by all means.
Mr Harnick: I do not want you to report me or anything like that. I will withdraw the remarks I made a short while ago.
Mr Morrow: I accept that. Thank you very much, Mr Harnick. I want to basically concur with what Mr Harnick and Mr Chiarelli were saying, that we short-list the witnesses. I hope we have an agreement on that point.
The Chair: Mr Winninger, could you clarify what you said we would be having.
Mr Winninger: Certainly, Mr Chairman.
Mr Harnick: Can you also confirm if there are amendments?
Mr Winninger: First of all, I can confirm that my understanding is that Parkdale Community Legal Services is available to make an oral presentation to this committee and wishes to do so.
The Chair: Will that be tomorrow?
Mr Harnick: Are they here now?
Mr Morrow: Ministry staff is here now as far as I know.
Mr Harnick: Is anyone here from Parkdale?
Mr Morrow: No.
Mr Winninger: Perhaps while we are waiting for ministry staff to come back in, we can revisit Parkdale momentarily. The Canadian Bankers Association and the law firm of Koskie and Minsky have expressed an interest in commenting on this bill following second reading. However, my understanding is that they are not available to make an oral presentation but could make a written submission. That is the proposal. As far as Mr Harnick's comments regarding amendments are concerned, I am unaware of any amendments proposed to this legislation. If, as the member for Willowdale observed, some amendments are suggested by the deputations we hear from, then those will have to be considered in the normal course.
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Mr Harnick: Certainly if there are any amendments being contemplated, those parties which had the opportunity to in fact write this bill should be given an opportunity to make submissions about those amendments, I would think. Certainly far be it from me to preclude them. I know that certainly the government coming in here today offering to consult with people even though there is nothing that is being contested here would surely not close down the consultation process if there were to be a change in the act.
Mr Winninger: I think we have certainly covered that contingency because we have left the list of delegations open-ended, and by leaving it open-ended those delegations that wish to make further submissions will not be precluded from doing so.
Mr Harnick: Is it also my understanding then that after we hear from Parkdale we will complete clause-by-clause?
Mr Chiarelli: On a point of order, Mr Chairman: There was a motion on the floor to adopt the subcommittee report. Mr Morrow moved an amendment to that motion. What is the status of Mr Morrow's amendment motion?
The Chair: Mr Morrow, have you withdrawn your amendment, according to what Mr Winninger has said?
Mr Morrow: Yes, I have withdrawn my amendment and gone with, I gather, a new one by Mr Winninger.
Mr Chiarelli: If that amendment is withdrawn, we then have a motion to adopt the subcommittee report as it is.
The Chair: Unless we have another amendment.
Mr Chiarelli: Okay, unless there is another amendment. But in that context, I think we want to also address what happens to the balance of the items on the subcommittee report if we adopt an amendment to my motion, because I think that is very relevant. That is, when will the advocacy bills proceed; what will be the process; what will be the first day of hearings, etc? I think we have to clarify that, because this subcommittee report that was presented contemplated one day, that is today, on class actions, and we were contemplating the various ministers starting tomorrow with respect to their briefings on the advocacy legislation. I think it is important that we clarify what is happening with the rest of the agenda that is the subject of the subcommittee report.
The Chair: Right. As soon as we are done with Mr Winninger here, there are no dates set for Bills 7 and 8. That will be discussed after the adoption of the subcommittee report. There are no dates right now in the report.
Mr Chiarelli: I realize there are no dates, but the subcommittee report indicates 25 November 1991 for the class action, and although it may not be in the actual report, there was certainly an understanding that the advocacy legislation would start the following day, namely, Tuesday.
The Chair: Right. We could not get any ministers scheduled for tomorrow. So the earliest we could get a minister in here would be next Monday.
Mr Chiarelli: I will come back to this again once we have an amendment on the floor.
Mr Morrow: I do have a new amendment I would like to put forward.
The Chair: We are dealing with Mr Winninger's right now.
Mr Morrow: That is what I am dealing with. Is his an amendment? That is what I am doing.
The Chair: Is it an amendment, Mr Winninger?
Mr Winninger: I believe it is, yes, procedurally.
Mr Harnick: Can we hear exactly what the amendment is?
Mr Morrow: Can I put the amendment on then, Mr Chair?
The Chair: Mr Morrow, would you like to put the amendment?
Mr Morrow: I move that starting today we deal with class actions by having the ministry staff here to brief us. Tomorrow we hear from the one group, have two written submissions and move into clause-by-clause.
Mr Harnick: One group for how long? Five minutes or 10?
Mr Morrow: I would say the normal time is up to 30 minutes.
Mr Harnick: Let's do 15 minutes and then go into clause-by-clause.
The Chair: Are we negotiating or are we making an amendment?
Mr Morrow: Let's make the amendment. We do not negotiate during amendments.
The Chair: What is it?
Mr Morrow: I would say obviously, because each caucus would like to ask for time, a 15-minute presentation time and then a 15-minute question period time.
Mr Poirier: Before you make an amendment, I have a question. Last week at caucus I asked the whips to look at tomorrow because of the Ontario Federation of Agriculture convention this week in Mississauga. From what I hear about your proposal for an amendment, it does not seem this request has gone back to the whips and gone back to you.
A lot of our members will be at the OFA convention. Tomorrow afternoon our entire caucus is hosting a time at the convention in the Delta Inn, Mississauga. I brought that to the whips' attention. I wanted to make sure other caucuses were contacted. I do not know when your caucus is doing it at the OFA. I know ours is tomorrow afternoon from 4 until 6, and that will prevent me from asking a lot of my colleagues to replace me. That is why I wanted to ensure we will not meet tomorrow, to be able to do the OFA convention. If you are going to do that, this is complicating things a bit here.
Mr Harnick: So why do we not defer it all till next Monday?
Mr Chiarelli: Defer it to January. You are not interested in getting stuff through quickly.
Mr Morrow: What are you suggesting then, Mr Poirier? What would you like us to do?
Mr Poirier: I do not mind working today, but technically speaking, it will be darned complicated tomorrow. It is not that I do not want to, but most members of the caucus who have a rural interest will be there.
Mr Chiarelli: In view of the difficulty in scheduling ministers for the advocacy legislation perhaps, following Mr Poirier's lead, what we can do is -- I am concerned about the ad hoc nature of what we are doing. We are talking about a major piece of legislation. We assumed it was going to go through clause-by-clause. If people want to come in and do submissions, why do we not do it properly? Why do we not schedule them? Why do we not firm it up? Why do we not simply defer the class action presentations until next Monday when we can have some time to do it professionally? As far as the advocacy legislation is concerned, put it into the following week.
The Chair: Could we move for a 10-minute recess? I could have the subcommittee stay and we will discuss this and try and work it out.
The committee recessed at 1638.
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The Chair: I call the meeting back to order.
Mr Chiarelli: I withdraw my motion to approve the subcommittee report which was adopted last week by the subcommittee and I move adoption of a new subcommittee report as a result of a subcommittee meeting held earlier today. I would ask the clerk to read the contents of the new subcommittee report.
Clerk of the Committee: "Your subcommittee met on Monday, 25 November 1991 and agreed to the following:
"Submissions and clause-by-clause consideration of Bills 28 and 29 will be scheduled for December 2 and December 3, 1991. Should government amendments be tabled with the clerk, further groups may be given the opportunity to appear before the committee."
The rest of the subcommittee report is as was read before.
The Chair: Mr Chiarelli has moved the adoption of the subcommittee report.
Motion agreed to.
The Chair: Having no further business before the committee, I move adjournment until Monday, December 2.
The committee adjourned at 1644.