LAW SOCIETY AMENDMENT ACT, 1998 LOI DE 1998 MODIFIANT LA LOI SUR LE BARREAU
CONTENTS
Wednesday 9 December 1998
Law Society Amendment Act, 1998, Bill 53, Mr Harnick /
Loi de 1998 modifiant la Loi sur le Barreau, projet de loi 53, M. Harnick
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président
Mr Jerry J. Ouellette (Oshawa PC)
Vice-Chair / Vice-Président
Mr E.J. Douglas Rollins (Quinte PC)
Mr Dave Boushy (Sarnia PC)
Mr Bruce Crozier (Essex South / -Sud L)
Mr Peter Kormos (Welland-Thorold ND)
Mr Gerry Martiniuk (Cambridge PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr David Ramsay (Timiskaming L)
Mr E.J. Douglas Rollins (Quinte PC)
Mr R. Gary Stewart (Peterborough PC)
Mr Bob Wood (London South / -Sud PC)
Substitutions / Membres remplaçants
Ms Annamarie Castrilli (Downsview L)
Mr Toni Skarica (Wentworth North / -Nord PC)
Clerk / Greffière
Ms Tonia Grannum
Staff / Personnel
Mr Doug Beecroft, legislative counsel
The committee met at 1529 in room 228.
LAW SOCIETY AMENDMENT ACT, 1998 LOI DE 1998 MODIFIANT LA LOI SUR LE BARREAU
Consideration of Bill 53, An Act to amend the Law Society Act / Projet de loi 53, Loi modifiant la Loi sur le Barreau.
The Chair (Mr Jerry J. Ouellette): I call this committee to order. This is the standing committee on administration of justice on clause-by-clause consideration of Bill 53, An Act to amend the Law Society Act. For further reference during the proceedings, I will refer to the upper right-hand corner of each of the presented amendments. Those will be referred to as committee motion numbers for further reference.
At this time, we'll move directly into section 1. I would ask, Mr Martiniuk, if you could proceed with explanation, please.
Mr Gerry Martiniuk (Cambridge): I move that the definition of "life bencher" in section 1 of the Law Society Act, as set out in subsection 1(3) of the bill, be amended by striking out "paragraph 5" in the second line and substituting "paragraph 3."
This is a housekeeping amendment bringing the definition of "life bencher" into the definition section.
The Chair: Discussion? Seeing no further discussion, I shall put the question. All those in favour of committee motion 1? All those opposed? I declare committee motion 1 carried.
Committee motion 2, with explanation, please.
Mr Martiniuk: I move that subsection 1(3) of the bill be amended by adding the following definitions to section 1 of the Law Society Act:
"'physician' means a member of the College of Physicians and Surgeons of Ontario or a person who is authorized to practise medicine in another province or territory of Canada; ('médecin')
"'psychologist' means a member of the College of Psychologists of Ontario or a person who is authorized to practise psychology in another province or territory of Canada. ('psychologue')"
This motion moves the terms "physician" and "psychologist" to the definition section. It's a housekeeping item.
The Chair: Further discussion? Seeing none, I shall put the question. All those in favour of committee motion 2, government motion? Those opposed? Committee motion 2 is carried.
Shall section 1 of the bill, as amended, carry? All those in favour? All those opposed? Section 1 has carried.
Section 2: Discussion on section 2? Seeing no discussion, I shall put the question on section 2. All those in favour of section 2? All those opposed? Section 2 of the bill is carried.
Unless there are specifics, I think we can move to sections 3, 4 and 5 of the bill. Any discussion? Seeing none, I shall put the question. All those in favour of sections 3, 4 and 5 of the bill? All those opposed? Sections 3, 4 and 5 of the bill have carried.
Section 6: Committee motion 3, a government motion, with explanation, please.
Mr Martiniuk: I move that section 6 of the bill be struck out and the following substituted:
"6. Section 12 of the act is repealed and the following substituted:
"Benchers by virtue of their office
"12(1) The following, if and while they are members, are benchers by virtue of their office:
"1. The Minister of Justice and Attorney General for Canada.
"2. The Solicitor General for Canada.
"3. Every person who has held the office of elected bencher for at least 16 years.
"Same: attorneys general
"(2) The following, whether or not they are members, are benchers by virtue of their office:
"1. The Attorney General for Ontario.
"2. Every person who has held the office of Attorney General for Ontario.
"Same
"(3) Subsection (2) does not apply to a person whose membership is in abeyance under section 31.
"Rights and privileges
"(4) Benchers by virtue of their office under subsection (1) or (2) have the rights and privileges prescribed by the bylaws but, except as provided in subsection (5), may not vote in convocation or in committees.
"Voting
"(5) The following voting rights apply:
"1. The Attorney General for Ontario may vote in convocation and in committees.
"2. Benchers by virtue of their office under paragraph 3 of subsection (1) or paragraph 2 of subsection (2) may vote in committees.
"Elected bencher's choice
"(6) An elected bencher who becomes qualified as a bencher under subsection (1) or (2) shall choose whether to continue in office as an elected bencher or to cease to hold office as an elected bencher and serve as a bencher under subsection (1) or (2).
"Same
"(7) If a bencher chooses under subsection (6) to continue in office as an elected bencher, he or she is eligible to be re-elected in any subsequent election of benchers without prejudice to his or her right to become a bencher under subsection (1) or (2) at any time so long as he or she is still an elected bencher."
It is with great pleasure that I move that motion, which could be termed the "Marion Boyd amendment," because it will permit Ms Boyd to be an honorary bencher due to her distinguished career as Attorney General for this province.
Mr Peter Kormos (Welland-Thorold): I'm going to support this amendment. You will recall that I exhorted the government to do this, and quite frankly they probably saved their bill as a result of having presented this amendment. I felt very strongly about it and Mr Martiniuk knows that. I want to thank him for responding to my very specific request. Although it is quite appropriate that this is the "Marion Boyd amendment," I anticipate that Ms Boyd won't be the last lay Attorney General. I'm going to support it. I appreciate the parliamentary assistant responding. I appreciate that my request to him was rather strong and forceful. I think it will serve the law society well.
The Chair: Further discussion?
Mr Kormos: Recorded vote, please.
Ayes
Boushy, Castrilli, Kormos, Martiniuk, Rollins, Skarica, Bob Wood.
The Chair: Carried.
Shall section 6, as amended, carry? All those in favour? All those opposed? Section 6 is carried.
Is there any discussion on section 7, up to and including section 17? Shall section 7, up to and including section 17, of the bill carry? All those in favour? All those opposed? Sections 7, up to and including 17, have carried.
Section 18: committee motion 4, a government motion, with explanation, please.
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Mr Martiniuk: I move that section 30 of the Law Society Act, as set out in section 18 of the bill, be amended by adding the following subsection:
"Application for readmission following resignation
"(3) If a person resigned his or her membership in the society as a member or student member, the hearing panel may, on the application of the person, make an order readmitting the person as a member or student member."
This is housekeeping. The right to reapply was inadvertently not included in the amendments.
The Chair: Further discussion? Seeing none, I shall put the question. All those in favour of committee motion 4, a government motion? All those opposed? Committee motion 4 has carried.
Shall section 18 of the bill, as amended, carry? All those in favour? All those opposed? Section 18 of the bill, as amended, has carried.
Sections 19 and 20: Discussion on sections 19 or 20? No discussion on sections 19 or 20. I shall put the question. All those in favour of sections 19 and 20 carrying? All those opposed? Sections 19 and 20 the bill have carried.
Section 21: committee motion 5, a government motion, with explanation, please.
Mr Martiniuk: I move that section 35 of the Law Society Act, as set out in section 21 of the bill, be amended by adding the following subsections:
"Test results
"(3) If the hearing panel makes an order under paragraph 18 of subsection (1), specific results of the tests performed in the course of treatment or counselling of the member or student member shall be reported pursuant to the order only to a physician or psychologist selected by the secretary.
"Report to secretary
"(4) If test results reported to a physician or psychologist under subsection (3) relate to an order made under paragraph 5 of subsection (1), the secretary may require the physician or psychologist to promptly report to the secretary his or her opinion on the member's or student member's compliance with the order, but the report shall not disclose the specific test results."
This follows the concerns raised by the privacy commissioner that there was absolutely no reason why the benchers would have to see the actual results of the test. Being laypersons, in the sense that they are not physicians or psychologists, they would rely upon the expertise of the physician or psychologist in making their evaluation. There was no purpose served in the actual test being revealed to them, or the results therefrom.
Ms Annamarie Castrilli (Downsview): I understand the intent of the government motion and quite frankly I applaud it. It's a matter that should have been addressed. I think it's great. I'm not sure that it's in the privacy commissioner's letter that I've seen.
But it raises an issue that I think the parliamentary assistant will address, if not now then later. There seems to be a whole series of government motions here that pertain to matters that were not presented to committee. I'd just like to understand from the parliamentary assistant how some of these motions came to be and if we're missing something here.
Mr Martiniuk: I am advised that this was a matter that rose out of the letters presented by the privacy commissioner. Perhaps I've neglected to point out that it was also a matter raised by the Criminal Lawyers' Association of Ontario in their concerns.
Ms Castrilli: I'm delighted to hear that. As I say, I agree with the thrust of this. Certainly the Criminal Lawyers' Association did not appear before us and did not present materials. I'm just wondering what kind of discussions went on that resulted in a whole list of recommendations.
I view the committee process as a process to inform all members of potential amendments, potential difficulties, potential clarification of legislation. As I read the package today -- please forgive me if I'm dealing with it in an omnibus way, but as I read the package this morning there were some concerns here that had never really been brought to this committee. They should have been here so that we could all have had the benefit of the wisdom of some groups, if indeed some groups were talking with the Attorney General and with members of the government, so that we could have been informed of the larger concerns.
Mr Martiniuk: Well, I can't disagree with that. If there is correspondence directed to the minister, however, I cannot distribute that. If it were distributed, for instance, to this committee or the clerk, anything of that kind would have been distributed to this committee.
Mr Kormos: That's an interesting comment because the PA had no qualms and didn't hesitate to distribute two letters from leaders on the bench that would support his position when it came to other matters when we were dealing with Bill 68, as I recall. It's an interesting comment that letters to the Attorney General about this legislation couldn't be disclosed. That's a new rule.
Mr Martiniuk: I didn't say they couldn't be disclosed. They are addressed to the minister. I've referred to them. I'll present the letter from the Criminal Lawyers' Association now that I've referred to it, if you wish. They're not secret in any manner, but they were addressed to the minister. It's not something I would ordinarily distribute to committee members since this is not addressed to committee members.
Mr Kormos: Chair, the minister doesn't read his own mail, any more than he does draft his own replies. I don't understand that argument. Sure, it's addressed to the Attorney General, whoever that might happen to be at the time, but I don't know why that puts it in a different category than any other material that the committee should be considering. If anything, it's a fait accompli. Obviously, it's not going to backtrack. But holy zonkers, in the future, please, shouldn't all this stuff be before the committee? There shouldn't be these kinds of secrets.
The Chair: As the committee Chair, a lot of organizations approach the Chair, as I'm sure Ms Castrilli knows, with the intent of passing information on, individuals not knowing the process. I don't intend to justify or clarify. I'd just say that from a Chair's position I regularly see information come through that I pass on to the clerk that is distributed through to ensure that all the committee has that. However, the information is coming in at certain times and this may be some of the process as well.
Ms Castrilli: I appreciate what you're saying, Chair. I'm not at all critical of the Chair. I understand fully that you have distributed all of the information that you had to give. I would expect that as Chair, and you've been a great Chair, very impartial and quite fair. That's not the issue I'm raising here.
In order for this committee to do its work well, we should be privy to all of the information that would help us to make an informed decision. As a general principle, what I'm looking at here is a number of recommendations that were never raised formally in this context. I'm not saying that the government shouldn't raise them; I just think there's an obligation to this committee to ensure that we're all fully informed.
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I happen to support this recommendation, that's not the issue, but it would have been fair to advise us that some of these concerns were on the table so that we could have turned our minds to them, not at 9 o'clock this morning -- well, we got it at 11 o'clock this morning and with our busy legislative schedule, it's very difficult to think about some of these issues.
For the future, we ought to have some very serious guidelines as to what should or shouldn't be before the committee. I think we should err on the side of giving as much information as possible, bearing in mind that the government always has the majority. At the end of the day, they can go whatever they want. I think it would be incumbent on them in those circumstances in particular to ensure that we had all of the pertinent information.
Mr Kormos: I just want to join with Ms Castrilli in confirming that you have been a wonderful Chair, worth every penny of the $10,000 or $11,000 that you earn as the Chair in addition to your base salary of $78,006, which brings you to a salary bracket of some $89,006. I think you've been worth every penny of it, or at least almost every penny of it.
The Chair: Thank you, Mr Kormos, I think.
Mr Toni Skarica (Wentworth North): Nicest thing he ever said.
Mr Martiniuk: For the purpose of the record, I think you've raised an excellent point. They are matters but they are not addressed to this committee, and I will seek instruction. Since it's within the scope of the consideration of this committee, I can't disagree that it would be relevant, even though it was not directed to the committee per se. I will seek instructions and, in future, act accordingly. Thank you very much for your suggestion.
Ms Castrilli: Thank you for your response.
The Chair: Further discussion on committee motion 5? Seeing none, I shall put the question. All those in favour of committee motion 5? All those opposed? The motion is carried.
Committee motion 6, a government motion.
Mr Martiniuk: I move that section 37 of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Interpretation -- 'incapacitated': members
"37(1) A member is incapacitated for the purposes of this act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting obligations as a member.
"Interpretation -- 'incapacitated': student members
"(2) A student member is incapacitated for the purposes of this act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of serving under articles or of participating in the bar admission course.
"Determinations under other acts
"(3) Subject to subsections (4) and (5), the hearing panel may determine that a person is incapacitated for the purposes of this act if the person has been found under any other act to be incapacitated within the meaning of that act.
"Conditions controlled by treatment or device: members
"(4) The hearing panel shall not determine that a member is incapacitated for the purposes of this act if, through compliance with a continuing course of treatment or the continuing use of an assistive device, the member is capable of meeting his or her obligations as a member.
"Same: student members
"(5) The hearing panel shall not determine that a student member is incapacitated for the purposes of this act if, through compliance with a continuing course of treatment or the continuing use of an assistive device, the student member is capable of serving under articles and of participating in the bar admission course.
"Same
"(6) Despite subsections (4) and (5), the hearing panel may determine that a person who is the subject of an application under section 38 is incapacitated for the purposes of this act if,
"(a) the person suffers from a condition that would render the person incapacitated were it not for compliance with a continuing course of treatment or the continuing use of an assistive device; and
"(b) the person has not complied with the continuing course of treatment or used the assistive device on one or more occasions in the year preceding the commencement of the application."
Subsections 37(1) and (2) define the term "incapacitated." Bill 53 provides that a member may be found to be incapacitated if, "by reason of physical or mental illness, other infirmity, addiction to or excessive use of alcohol or drugs, or any other cause, he or she is incapable of meeting obligations as a member." We have removed "or any other cause" as it broadened the definition too widely, it was felt.
Last, subsection (3) is amended to provide that a hearing panel may determine that a person is incapacitated if the person was found to be incapacitated under any other act. This motion responds to the concerns raised by the mental health legal committee by striking out the automatic presumption of incapacity. Then the other ones deal with students.
The Chair: Further discussion?
Mr Kormos: I'm concerned about subsections (4) and (5), which are effectively identical other than one dealing with a bar ad student and the other one dealing with a member of the law society, and I suppose in particular, "or the continuing use of an assistive device." Where did this amendment come from?
Mr Martiniuk: As a result of discussions with the law society.
Mr Kormos: The law society?
Mr Martiniuk: Between the ministry staff and the law society.
Mr Kormos: Here's part of the problem: I find it offensive. Let me tell you why. Obviously this is fresh stuff. We haven't been exposed to this before. It implies, for instance, that if, let's say, a deaf person uses a cochlear implant, then he or she can become acceptable in terms of not being incapacitated, if that in fact is an assistive device. That may not be the best example. It implies that persons with disabilities, unless they have those particular devices, are presumed or are suspected of being incapacitated. Do you hear what I'm saying? Especially the part about assistive devices implies something that makes me very uncomfortable about persons with disabilities and an assumption about their incapacity.
I wish we had a chance to hear from the law society to see whether that reflects what they had in mind. I hope I'm getting my message across to you. I appreciate your deletion of "or other causes" from subsection (1) but I'm going to find it really difficult to support this. Could you respond? This is very troublesome. I'm winging it a little bit because I'm responding to this without a whole lot of preparation, I concede, but there is something very troubling there about "continuing use of an assistive device." I think I know what assistive devices are and I think I know how they're utilized. Therefore, I think I know what the inference to be drawn here is, a prima facie inference about persons with disabilities, be they blind people, deaf people, or other disabilities. It is suggesting that somehow the use of an assistive device, that effort to normalize them, is critical before they can become acceptable, and I reject that. I reject that entirely.
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I suggest to you that blind people, deaf people, all sorts of persons with any number of disabilities, some may choose to use assistive devices, others may choose not to, from their outlook, but the mere fact that some will choose to use an assistive device doesn't put the others in a position of incapacity.
The Chair: Further discussion?
Ms Castrilli: If the parliamentary assistant wants to respond to that first, I'm willing to defer.
Mr Martiniuk: There's a different way of looking at it. First of all, a person has to be suspected of being incapacitated to even go through the process. There is no presumption. The fact that a person may have a disability or, for that matter, is abusing a substance, is not prima facie. There's no presumption in any way that that person is incapacitated. There would have to be a complaint and a hearing as to the person's actions; not the behaviour or their end result, not who they are and what their ailment is. So I don't necessarily take it as a slur. That certainly isn't the intent, as you know, Mr Kormos.
Mr Kormos: I hope it isn't. If I may, let's leave the alcohol and drugs out of this. I may not have as complete an understanding of this as I should, but I can't think of assistive devices that aren't used other than by persons who don't have all of the characteristics of other people. I hear what you're saying, but then why is it necessary to put that in there? This doesn't have to be in there at all. Subsections (4) and (5) don't have to be in there at all if incapacity is the first hurdle, the first step. If I'm an alcoholic and I'm in a program, then I'm not incapacitated, because presumably I'm not using alcohol to the point where it interferes with the practice. If I'm a drug addict and I'm on, let's say, methadone, then I'm not incapacitated. So your argument applies and there's no need for subsections (4) or (5), if what you're saying is the prevailing argument.
Clearly, you've chosen to put in subs (4) and (5) -- because (4) and (5) are actually identical -- but you've also thrown in the issue of assistive devices. I think that speaks to persons with disabilities and I'm not sure it says what the government wants to say. It certainly doesn't say what I want to say about persons with disabilities.
Ms Castrilli: Here's the problem, and it refers back to something I said before. We received these amendments at 11 o'clock this morning and we've been in the Legislature for a great portion of the time since. There's been very little time to really think about these particular amendments. We've had no presentation on this issue at all. It comes as a surprise and I think we need the time to digest these issues.
Let me just say with respect to my friend Mr Kormos, I have a different interpretation of this particular section. I don't read it as he does. I read it as saying that "incapacitated" means that you have a physical or mental illness or other infirmity which is defined here, and then out of an abundance of caution, you want to make sure that you don't include in that definition people who are being helped by assistive devices. That's how I read it.
I'm quite prone to accept the parliamentary assistant's description of this because that's how I read it, but the problem is that we have no evidence that's come before the committee. We've not been able to ask the questions. We've had virtually no time to review it, and I'm concerned that we're going to go through this with every single amendment. It could have been avoided had we had the ability to ask the questions, to get the answers, to have some time to review these amendments.
But I'll have to disagree with my friend Mr Kormos on this one because I don't read it in quite the same way. He says he may be wrong because he hasn't had time to think about it, and I think I may be wrong because I haven't had time to think about it.
Mr Kormos: I hear what the PA is saying. I'm not in any way suggesting or trying to suggest that there's anything sinister about his introduction of this. All I'm saying is I have real concerns about utilization of the phrase or language "the continuing use of an assistive device" and the implications. I don't quarrel with what the PA says is sought to be achieved here or is sought here in terms of the goal, I don't disagree with that, but I'm troubled, I tell you, by the language. You see, here we are. This committee's compelled to deal with this today.
I'm not trying to put words in Mr Martiniuk's mouth, by any stretch, but I've got a feeling that he's thinking about this thing, "Gosh, maybe this isn't the best possible articulation of this either." I'm not sure of that. As I say, I'm just reading his body language here. I'm just reading facial expressions, and I appreciate his concern and interest about it. I wish we could defer this. I wish for a lot of things, I suppose, but it's unfortunate.
You see, Mr Martiniuk -- and I'm not going to belabour this -- I don't think this amendment was written last night. With all due respect, I don't think it was written last night. I appreciate that some of the cut and thrust here is sometimes not that witty and it's not necessarily all that germane to the committee process, but the whole prospect of the government coming clean at the onset -- because I don't think this was written last night. I think this was probably written before we started the committee or at least at the onset or the beginning of the committee. We talked about this. If the government was going to deal with certain amendments, say so upfront so that we could move on from there and wouldn't belabour the point during the course of talking to presenters before this committee.
The difficulty I have with this amendment now I think speaks to that. It's just unfortunate that this couldn't have been produced earlier on. I would have had a chance to vet it past people whose judgment I hold in high regard with respect to these sorts of issues and had a better handle on it so that I could say one way or the other that I think it stinks or it isn't offensive the way I suspect it might be. So there we are.
Unfortunately, I'm not going to vote for this amendment because I have grave concerns about that language. I suspect it will pass because -- oh, oh, you better watch it. You better whip your people in here, but at the moment you've got a majority in here.
Mr E.J. Douglas Rollins (Quinte): I think we're all right.
Mr Kormos: At the moment.
Mr Martiniuk: One thing I do appreciate, if the three of us were perhaps the House leaders, we wouldn't be sitting here in such a rushed capacity today. I'm not going to justify the rush, because it's unfortunate. I do not, however, interpret it as you do. I think it's clear that the incapacity is defined right in sub (1) and it in no way is a reflection on anybody with any physical or mental disability. So we will support it.
The Chair: Further discussion? Seeing none, I shall put the question on committee motion 6. All those in favour? Those opposed? I declare committee motion 6 carried.
Committee motion 7, an official opposition motion, Ms Castrilli, with explanation, please.
Ms Castrilli: I move that subsection 39(1) of the Law Society Act, as set out in section 21 of the bill, be amended by adding at the end "if the hearing panel has reasonable grounds to believe that the member or student member is or has been incapacitated."
I want to comment on this motion and preface some of the others that will come. I've spent considerable time in this committee trying to elicit some responses to concerns that were voiced by the privacy commissioner in a letter dated October 2, 1998. I've made it very clear that I view the privacy commissioner, as indeed the privacy commissioner is, as an office of the Legislative Assembly, and the communications with that office are not communications that we can afford to dismiss.
Mr Strosberg, the treasurer of the law society, yesterday presented a letter dated December 3 -- I guess it was received December 7 and presented to us yesterday afternoon -- which states again for the record that the privacy commissioner believes that the protection of personal information be enshrined in legislation. That was the proposal that was made according to the commissioner herself to the Deputy Attorney General, so the letter says. It's a letter of December 3 to Mr Strosberg.
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With that letter in mind, I don't really think we can ignore the comments and views that are expressed in that October 2 letter. Therefore, there is a series of motions that are presented here from our party which reflect those particular concerns. One of them is reflected here, and that is that a hearing panel, because it's dealing with such critical rights of an individual, should not be able to simply conduct a hearing without it being satisfied that there are reasonable grounds to believe that an individual before the hearing panel who is the subject of a complaint is not incapacitated.
That's the intent of this motion. It is, as I say, a preface to other motions that will come. I trust that the members of the committee will look at the recommendations of the privacy commissioner very, very seriously. I know you have a majority here, but I think it's incumbent on us in this committee to ensure that the opinions of third parties -- not the lawyers and not the organizations that represent lawyers but a third party who is above all the parts, who has gone to considerable lengths to review the legislation and finds it wanting. We've got to consider those recommendations. So I put it to the committee that you entertain this motion very seriously.
Mr Kormos: I find this interesting. Once again some direction would be helpful. What, if anything, is the standard for the hearing panel to make its determination without a standard like this?
Mr Martiniuk: First, before you can even have a hearing, the secretary must reach a conclusion in his mind that he should have reasonable grounds before even starting the investigation. That safeguard is built into the amendments.
Mr Kormos: Fair enough. So be it. But when the hearing panel considers a motion, an application to require somebody to be examined, what is the standard? What is the test they utilize in considering that application? I don't know. There's an implication here that there's some sort of hearing by the hearing panel, that they have to consider some kind of submission.
Mr Martiniuk: Yes.
Mr Kormos: Without a test being expressed, what test then does the hearing panel utilize in the course of responding to that application or motion?
Mr Martiniuk: It's as I expected. If the act is silent, it would be the balance of probabilities, the usual civil requirement.
Ms Castrilli: Mr Kormos has pointed out the fact, and I've said it before, that we've had very little time to really consider some of these amendments, but the privacy commissioner has spent time reviewing this legislation. I would refer the parliamentary assistant to the second page of the privacy commissioner's letter of October 2, in which it's clearly stated, and I quote:
"...we suggest that the hearing panel prescribed in the bill be required to have reasonable and probable grounds before ordering a medical or psychological examination to determine a member's capacity. Additionally, the member should be able to make submissions on the issue before he or she is required to be examined. This is the approach taken in the Regulated Health Professions Act. Similar standards should be met before a member is obliged to undergo 'testing and treatment...', particularly if the law society wishes to collect the results of the testing."
What does this say to us? It says a number of things. It says, first of all, that the privacy commissioner doesn't see a process, doesn't see any qualifications with respect to whether there would be reasonable or probable grounds; doesn't see any kind of due process to allow the individual to dispute, debate or comment on whether the determination to be made is reasonable. Third, what this says to us is, "Look, other professions aren't regulated in this way." The very same provisions under the health professions act require a reasonable and probable ground before decisions of this magnitude can be taken. I think that's pretty clear on the face of it.
Mr Kormos and I haven't had the time to discuss this or review this. Obviously those who are charged with looking at these kinds of legislation feel that there's something wanting here. So there is no test, there is no process, and other professions don't deal with it in this fashion. That's what the privacy commissioner's telling us and that's what this amendment is, in part, trying to address.
Mr Kormos: I'm going to support the amendment because I think it sets out the test and I think that's appropriate. I think the PA should consider adopting it as well. He says there's an assumed test in the context of silence about the test. I'd rather see it articulated.
The Chair: Further discussion? Seeing no further discussion, I shall put the question. Shall committee motion 7 carry? All those in favour? All those opposed? I declare committee motion 7 defeated.
Committee motion 8, a government motion.
Mr Martiniuk: I move that subsection 39(4) of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Questions and answers
"(4) The member or student member shall answer the questions of the examining physicians or psychologists that are relevant to the examination.
"Same
"(4.1) The answers given under subsection (4) are admissible in evidence in the application, including any appeal, and in any proceeding in court arising from the application, but are not admissible in any other proceeding."
In the original amendments as proposed, it wasn't clear whether the answers could be used in appeals. This clarifies that issue.
The Chair: Further discussion? Seeing none, I shall put the question on committee motion 8. All those in favour of committee motion 8? All those opposed? I declare committee motion 8 carried.
Committee motion 9, a government motion.
Mr Martiniuk: I move that subsection 39(6) of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Appeal
"(6) A party to the proceeding may appeal an order under this section or a refusal to make an order under this section to the appeal panel.
"Grounds: parties other than society
"(7) A party other than the society may appeal under subsection (6) on any grounds.
"Grounds: society
"(8) The society may appeal under subsection (6) only on a question that is not a question of fact alone.
"Time for appeal
"(9) An appeal under subsection (6) shall be commenced within the time prescribed by the rules of practice and procedure."
This reflects back to the debate we had in regard to Ms Castrilli's motion, item 7. Even though we feel there are sufficient safeguards built into the section, we didn't feel that the person who is under scrutiny should have the right of appeal both in law and in fact as an additional safeguard.
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Ms Castrilli: I'm grateful for the PA's explanation. I will say that there is a motion later on that we put forward to address some of those issues. I will be glad to support this motion. I think the bill was extremely deficient in the area of appeals. This is quite a welcome amendment.
Mr Kormos: I support the amendment, but I point out subsection (7) here, "any grounds." Isn't "ground" the singular of "grounds" plural?
Ms Castrilli: Is that a legal question or a semantic question?
Mr Kormos: Well, it's English language; I don't know.
Mr Martiniuk: I'm sorry, I missed your question.
Mr Kormos: Well, you spent so much time looking for the answer, you missed the question.
Mr Martiniuk: No, I'm not looking for the answer; I was looking for --
Mr Kormos: In subsection (7), isn't "ground" the singular of "grounds"?
Mr Martiniuk: I would assume it would be "ground," Mr Kormos. That's a collective term, is it not?
Mr Kormos: Speed it up now. Otherwise, the legislative counsel committee will have to labour over this pursuant to that schedule under Bill 25, schedule C, if I recall it.
Mr Martiniuk: It's consistent with the drafting. It's already in the bill as plural.
Mr Kormos: Because they screwed up in the past, we're going to screw up again?
Mr Martiniuk: Yes. That's called "tradition," Mr Kormos.
Mr Rollins: That's why we have lawyers, Peter. That's why lawyers exist.
Mr Kormos: I want my objection to this noted. Let me tell you, on Highway 406 going north up to St Catharines, if you travel west off the 406, there's the Howell Family Pumpkin Farm. It's a little bit of an attraction for school kids.
The MTO, as you know, charges money for signs now, when you want signage up on the 400 series highways. The MTO charged these people several hundred bucks to put up a sign that says "Howell Family Pumpkin Farm," except the dumb people who painted this sign and charged these people money for it misspelled "pumpkin." They spelled it p-u-m-k-i-n. There is it, in both directions, northbound and southbound on the 406. All these buses of school kids being taken to the Howell Family Pumpkin Farm are being misled by this government, specifically by the Ministry of Transportation, which charged to put up a misspelled road sign.
The Chair: I don't see how that fits in with the amendment.
Mr Kormos: But you know, in this context, misleading isn't necessarily out of order, is it? It's quite factual. It's going to be the Quayle effect.
The Chair: It's duly noted, Mr Kormos. Further discussion on committee motion 9, excluding pumpkins? Seeing none, I shall put the question. All those in favour of committee motion 9? All those opposed? I declare committee motion 9 carried.
Committee motion 10, a government motion.
Mr Martiniuk: I move that subsection 40(1) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "shall" in the fifth line and substituting "may."
I think that is self-explanatory.
The Vice-Chair (Mr E.J. Douglas Rollins): Further discussion? No discussion? All those in favour of the government amendment, motion 10? Opposed? Carried.
Government motion 11.
Mr Martiniuk: I move that section 40 of the Law Society Act, as set out in section 21 of the bill, be amended by adding the following subsections:
"Test results
"(3) If the hearing panel makes an order under paragraph 5 of subsection (1), specific results of tests performed in the course of treatment or counselling of the member or student member shall be reported pursuant to the order only to a physician or psychologist selected by the secretary.
"Report to Secretary
"4) If test results reported to a physician or psychologist under subsection (3) relate to an order made under paragraph 2 of subsection (1), the secretary may require the physician or psychologist to promptly report to the secretary his or her opinion on the member's or student member's compliance with the order, but the report shall not disclose the specific test results."
This is in continuation of our former amendment, in which we wanted to ensure that test results were not available to lay members of the law society.
The Vice-Chair: Any further discussion on government motion 11? If not, all in favour of government motion 11? Opposed? Carried.
Government motion 11.
Mr Martiniuk: I move that section 44 of the Law Society Act, as set out in section 21 of the bill, be amended by adding the following subsections:
"Test results
"(3) If the hearing panel makes an order under paragraph 9 of subsection (1), specific results of tests performed in the course of treatment or counselling of the member shall be reported pursuant to the order only to a physician or psychologist selected by the secretary.
"Report to Secretary
"(4) If test results reported to a physician or psychologist under subsection (3) relate to an order made under paragraph 5 of subsection (1), the secretary may require the physician or psychologist to promptly report to the secretary his or her opinion on the member's compliance with the order, but the report shall not disclose the specific test results."
Again, that's self-explanatory.
The Vice-Chair: Any discussion? All those in favour of 11A? Opposed? Carried.
Liberal motion 12, Ms Castrilli.
Ms Castrilli: I move that section 48 of the Law Society Act, as set out in section 21 of the bill, be struck out.
We've had very little time for this, but let me explain to members what this amendment is attempting to do. Under the amendments we have before us, there are a number of summary orders that can be made against an individual practitioner or student member of the law society. There may be a suspension that ensues. I read 48 as allowing summary revocation of membership if, after 12 months, the particular order is still in effect.
The concern we have is that this happens without notice. I urge members of the committee to realize that there really should be some sort of process here, that you shouldn't be able to summarily dismiss a member without at least sending out a notice that that individual may be struck from the membership of the law society. That's the intent here. It may not be the most felicitous way of addressing this particular concern. As I said, we've had very little time, but that's the intent of the motion.
Mr Kormos: I know lawyers who advertise by having their names listed in the OR. Then they pay up, and it's all done at no cost to them other than the penalty fee. I understand what's being sought here. I wonder if the PA could comment on the discretion of a bencher. It's one thing to revoke membership, another thing to disbar. Is this really what the PA has in mind?
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Ms Castrilli: Yes, that's what it sounds like.
Mr Kormos: A single member, unrestricted? What if somebody in the law society didn't like you, Mr Martiniuk? What if they had a grudge? What if they knew you and for a mere oversight on your part, for instance, in paying your dues you got disbarred? Is that the type of power you wanted to pass on?
Mr Martiniuk: One can reapply. It's not a problem.
Mr Kormos: How does one go about reapplying after you've been disbarred?
Mr Martiniuk: Right now, you have to go to convocation for all of these things. This is what we're trying to avoid, to give the law society some more flexibility in the way they manage it. There are many lawyers who no longer practise law, such as myself, Mr Kormos, and I may not have any interest in practising law or being a member of the law society.
Mr Kormos: What are you going to do after the next election?
Mr Martiniuk: I'll be right here, Mr Kormos. Both of us, I'm sure, will be right here.
Ms Castrilli: You're not excluding me, are you?
Mr Martiniuk: No. I was talking to Mr Kormos.
The Vice-Chair: Any further discussion on section 12? All those in favour of section 12? All those opposed to the Liberal motion? Motion defeated.
Government motion 13, Mr Martiniuk.
Mr Martiniuk: I move that subsection 49.3(1) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "shall" in the second line and substituting "may."
This arose out of the submission of the Canadian Bar Association yesterday.
The Vice-Chair: Any further discussion?
Mr Kormos: I'm just indicating that I'd support it.
The Vice-Chair: All those in favour of government motion 13? All those opposed? The motion carries.
Motion 14, a Liberal motion, Ms Castrilli.
Ms Castrilli: I move that subsections 49.3(1), (2) and (3) of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Investigations: members' conduct
"49.3(1) Subject to section 49.5, the secretary may require an investigation to be conducted into a member's conduct if the secretary is satisfied that there are reasonable grounds for believing that the member may have engaged in professional misconduct or conduct unbecoming a barrister or solicitor.
"Investigations: student members' conduct
"(2) Subject to section 49.5, the secretary may require an investigation to be conducted into a student member's conduct if the secretary is satisfied that there are reasonable grounds for believing that the student member may have engaged in conduct unbecoming a student member.
"Investigations: capacity
"(3) Subject to section 49.5, the secretary may require an investigation to be conducted into a member's or student member's capacity if the secretary is satisfied that there are reasonable grounds for believing that the member or student member may be or may have been incapacitated."
As I indicated before one of the other amendments we presented, this arises from some of the concerns of the privacy commissioner. There really has to be a test of reasonableness before significant decisions are embarked upon. I think the motion is self-explanatory.
Mr Martiniuk: One thing I didn't know -- and Mr Kormos no doubt would be aware of it, because he does criminal work and I don't, or haven't for the last 20 years -- was that the Supreme Court of Canada has interpreted "reasonable grounds" and "reasonable and probable grounds" as being one and the same. I see no reason why we have to inject criminal onuses into what is essentially the regulation of a profession for the public good. I think it's too high a standard.
Mr Kormos: I should correct the PA. I have had recent experience in the criminal courts, but not as counsel.
Mr Martiniuk: I was not referring to that, Mr Kormos.
Ms Castrilli: I want to say again that I accept the PA's position, but it's not the position of the privacy commissioner, and it is not unlike other professions and the standards that are imposed on them. This would not be an anomaly. In fact, it would be consistent with other legislation governing other professions.
Mr Kormos: I have sympathy for the position expressed, but what prompts an investigation? In the bill as presented, the standard is pretty low, because it combines "receives information suggesting" and it doesn't say that the member "has engaged in" but that the member "may have engaged in," so it seems to lower it even further. I'm not quarrelling with that, quite frankly. In view of the latitude allowed the law society as to the type of investigation it embarks on and in view of the goal here of protecting the public from lawyers who may be less than competent or less than scrupulous, in this instance, although sympathetic to Ms Castrilli's argument, I can very much live with the bill as presented.
The Vice-Chair: Any further discussion on Liberal motion 14? If not, I'll call for the support of Liberal motion 14. All those in favour? All those opposed? I declare it defeated.
Next is government motion 15, Mr Martiniuk.
Mr Martiniuk: I move that section 49.3 of the Law Society Act, as set out in section 21 of the bill, be amended by adding the following subsection:
"Powers
"(1.1) A person conducting an investigation under subsection (1) may require the person under investigation and people who work with the person to provide information that relates to the matters under investigation and, if the secretary is satisfied that there is a reasonable suspicion that the person under investigation may have engaged in professional misconduct or conduct unbecoming a barrister or solicitor, the person conducting the investigation may,
"(a) enter the business premises of the person under investigation between the hours of 9 am and 5 pm from Monday to Friday or at such other time as may be agreed to by the person under investigation; and
"(b) require the production of and examine any documents that relate to the matters under investigation, including client files."
In this, we are hoping to meet some of the concerns raised at the hearings and we have introduced for the first time to the bill a two-step process, the second, where client files are being examined, being a higher basis than the initial investigation.
The Vice-Chair: Any discussion on government motion 15?
Ms Castrilli: Just a question. Where did this amendment come from? We may ask this question from time to time. I accept your explanation, but I'd just like to know the origin.
Mr Martiniuk: We have, in Kathleen and others, a very creative staff with the ministry. However, the creativeness arose because of the concerns, which I think may have had some grounding, raised by these committee members and by the presenters before this committee.
Ms Castrilli: I'm glad to hear that we have such creative staff.
The Vice-Chair: Any further discussion on government motion 15? If not, all those in favour? All those opposed? Government motion 15 carries.
Government motion 16.
Mr Martiniuk: I move that subsection 49.3(2) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "shall" in the second line and substituting "may."
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The Vice-Chair: Any discussion of government motion 16? If not, I'll call the question. All those in favour? All those opposed? The motion carries.
Government motion 17.
Mr Martiniuk: I move that section 49.3 of the Law Society Act, as set out in section 21 of the bill, be amended by adding the following subsection:
"Powers
"(2.1) A person conducting an investigation under subsection (2) may require the person under investigation and people who work with the person to provide information that relates to the matters under investigation and, if the secretary is satisfied that there is a reasonable suspicion that the person under investigation may have engaged in conduct unbecoming a student member, the person conducting the investigation may,
"(a) enter the business premises of the person under investigation between the hours of 9 am and 5 pm from Monday to Friday or at such other time as may be agreed to by the person under investigation; and
"(b) require the production of and examine any documents that relate to the matters under investigation, including client files."
This applies the same standard to students.
The Vice-Chair: Is there any discussion of government motion 17? If not, all those in favour of government motion 17? All those opposed? Motion carried.
Government motion 18.
Mr Martiniuk: I move that subsection 49.3(4) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "this section" in the second line and substituting "subsection (3)".
The Vice-Chair: Any discussion of this one? All in favour? Opposed? The motion is carried.
Government motion 19.
Mr Martiniuk: I move that subsection 49.5(1) of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Investigations of benchers and society employees
"(1) A reference in section 49.3 to the secretary shall be deemed, with respect to any matter that concerns the conduct or capacity of a bencher or employee of the society, to be a reference to the treasurer."
This is just a matter of renumbering in the act, if I understand it.
The Vice-Chair: Any further discussion of government motion 19? If not, all those in favour? Opposed? Government motion 19 carries.
Government motion 20.
Mr Martiniuk: I move that section 49.8 of the Law Society Act, as set out in section 21 of the bill, be amended by,
(a) striking out "section 49.2, 49.3 or 49.4" in the second line of subsection (1) and substituting "section 49.2, 49.3, 49.4 or 49.15"; and
(b) striking out "section 49.2, 49.3 or 49.4" in the fourth line of subsection (2) and substituting "section 49.2, 49.3, 49.4 or 49.15."
The Vice-Chair: Any discussion of government motion 20? All those in favour? All those opposed? Government motion 20 carries.
Liberal motion 21.
Ms Castrilli: I move that section 49.8 of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Disclosure despite privilege
"49.8(1) A person who is required under section 49.2, 49.3 or 49.4 to provide information or to produce documents shall comply with the requirement even if the information or documents are privileged or confidential.
"Notice
"(2) If a person provides information or produces documents under section 49.2, 49.3 or 49.4 that are privileged or confidential,
"(a) the person who provided the information or produced the documents shall promptly inform the person who is entitled to claim the privilege or the right to confidentiality that the information has been provided or the documents have been produced; and
"(b) the person to whom the information was provided or to whom the documents were produced shall promptly inform the person who is entitled to claim the privilege or the right to confidentiality that the information has been provided or the documents have been produced.
"Exception
"(3) Clause (2)(b) does not apply if,
"(a) the person who provided the information or produced the documents has complied with clause (2)(a); or
"(b) the person to whom the information was provided or to whom the documents were produced does not know that the information or documents are privileged or confidential or does not know the identity or whereabouts of the person who is entitled to claim the privilege or the right to confidentiality.
"Delivery of documents to court
"(4) If documents that are privileged or confidential are produced under section 49.2, 49.3 or 49.4 and, pursuant to section 49.9, the documents are in the custody or control of the person to whom they were produced, the person who is entitled to claim the privilege or the right to confidentiality may require the person to whom the documents were produced to deliver the documents to the Ontario Court (General Division) and the person to whom the documents were produced shall promptly comply with the requirement.
"Examination or use
"(5) Documents that are required to be delivered to the Ontario Court (General Division) under subsection (4) shall not be examined or copied by the person to whom the documents were produced except as authorized by an order of the court made under subsection (6).
"Application to court
"(6) On application, the Ontario Court (General Division) may make an order,
"(a) directing that documents required to be delivered to the court under subsection (4) be returned to the person who produced them or be given to the person to whom they were produced;
"(b) authorizing the person to whom the documents were produced to examine or copy the documents.
"Terms and conditions
"(7) An order under subsection (6) may be made subject to such terms and conditions as the court considers appropriate.
"Admissibility despite privilege
"(8) Despite clause 15(2)(a) and section 32 of the Statutory Powers Procedure Act but subject to subsection (5) and to any order made under subsection (6), information provided and documents produced under section 49.2, 49.3 or 49.4 are admissible in a proceeding under this act even if the information or documents are privileged or confidential.
"Privilege preserved for other purposes
"(9) Subsections (1) and (8) do not negate or constitute a waiver of a privilege except as provided in those subsections."
What this amendment seeks to do is to address some of the concerns of the privacy commissioner as to the kinds of standards and regulations that there ought to be with regard to privilege and confidentiality. We've heard from the privacy commissioner that this is a concern. We heard it on October 2. We heard it again in her letter of December 3, in which she said she advised the Attorney General that she had written about the importance of enshrining confidentiality and privilege in the legislation.
I hope the members of government will consider it. I should say that in the event you do not, I hope this would feature very prominently in discussions you may have with the privacy commissioner and that the law society may have with the privacy commissioner in terms of a set of standards that would protect privilege and confidentiality, which is a real deficiency under this legislation.
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Let me just add one final thing. I appreciate that section 21 is a very delicate section in that it's trying to address the interests of various parties. It's a question of striking the right balance. The privacy commissioner has said to us that the balance has not been struck right in section 21, so this is an attempt to try and strike that balance. I hope you have that in mind as you vote for this legislation and in any further discussions that may be had following the adoption of the legislation.
The Vice-Chair: Any further discussion? If there's no discussion, we'll call Liberal motion 21 and 21a; they're numbered together. All those in favour? All those opposed? I declare the motion defeated.
Item 22 is a government motion.
Mr Martiniuk: I move that subsection 49.8(3) of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Privilege preserved for other purposes
"(3) Subsections (1) and (2) do not negate or constitute a waiver of any privilege and, even though information or documents that are privileged must be disclosed under subsection (1) and are admissible in a proceeding under subsection (2), the privilege continues for all other purposes."
Our intent is to ensure and strengthen the rationale throughout the act that any documentation received by the law society is privileged.
Ms Castrilli: I will be supporting this motion. While I don't think it's an absolute response to the concerns the privacy commissioner put forward, it does address some of those concerns, and I commend the government for at least paying attention.
The Vice-Chair: Any further discussion? If there's no further discussion, government motion 22: All those in favour? All those opposed? The motion is carried.
Government motion 23.
Mr Martiniuk: I move that subsection 49.9(1) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "sections 49.2, 49.3 or 49.4" in the second line and substituting "sections 49.2, 49.3, 49.4 or 49.15."
It's housekeeping.
Bells rang in the House.
The Vice-Chair: I'm going to ask for a 10-minute recess.
Ms Castrilli: Is there a vote?
The Vice-Chair: No, it's a quorum call.
Mr Kormos: Wait a minute. The Chair's calling a recess?
The Vice-Chair: This is what I was told I had the privilege of being able to do.
Mr Kormos: By your members?
Clerk of the Committee (Ms Tonia Grannum): Under the standing orders, the Chair has the authority to recess if the bells are going, because you really don't know if it's for a division or a quorum call.
Mr Kormos: Chair, the TV screen tells us whether it's a quorum or a division call. If we were in a room where there wasn't a TV, it would be different. We know we have to break if there's a vote. We don't break if there's a quorum call. Your whip has an obligation to keep 20 people in there. Let him or her do it. Quite frankly, the Chair, by responding to a quorum call, is going well beyond the rule of non-partisan chairing.
The Vice-Chair: Fine. I'm sorry if I misspoke and called the recess. I was told that I had the pleasure of calling a recess, so I exercised that pleasure. The recess is now over. Is that all right? Or do you want to wait for 10 minutes? We have to wait for 10 minutes?
Mr Kormos: You haven't got the power to call a recess for a mere quorum call, Chair.
Mr Martiniuk: How do we resolve the problem we have now?
The Vice-Chair: That's the question.
Ms Castrilli: If I may, if I heard you correctly, you said, "I would like to ask for a recess." I don't recall us responding, so it was not a decision on your part to call a recess but you actually put it to the committee. Maybe if you'd like to proceed with that, we could give you some direction as to how we would vote on it.
The Vice-Chair: If that's the case, I put it to the committee: Do we need a recess?
Interjections: No.
Mr Kormos: Mind you, Chair, any member can call a recess on the call for a vote. A clever government backbencher would have, upon the calling of a vote, asked for a recess and run and done the quorum.
Mr Martiniuk: Thanks for the idea.
The Vice-Chair: We are at the present time on government motion 23. Is there any further discussion? If not, all those in favour? All those opposed? The motion carries.
The next is Liberal motion 24.
Ms Castrilli: I move that section 49.9 of the Law Society Act, as set out in section 21 of the bill, be amended by adding the following subsection:
"Certain parts of documents not to be copied
"(3) This section does not authorize the copying of any part of a document that,
"(a) in the case of a document examined under section 49.2, is not a financial record maintained in connection with the practice of the member or group of members and is not relevant for the purpose of understanding or substantiating a financial record maintained in connection with the practice of the member or group of members;
"(b) in the case of a document examined under section 49.3, does not relate to the matters under investigation; or
"(c) in the case of a document examined under section 49.4, does not relate to the matters under review."
I think the motion is self-evident. What we don't want to do is fetter the power of the law society to investigate, but we also want to make sure we protect information that is not relevant to any proceedings that the law society may undertake. May I say that this really builds on the government's motion 22. It's almost a companion. It simply specifies the kinds of documents that ought not to be copied.
Mr Kormos: I think this is a reasonable amendment and we'll be supporting it.
The Vice-Chair: All those in favour of Liberal motion 24? All those opposed? The motion is defeated.
Government motion 25.
Mr Martiniuk: I move that subsection 49.10(1) of the Law Society Act, as set out in section 21 of the bill, be amended by,
(a) striking out "require" in the first line of clause (a) and substituting "authorize or require"; and
(b) striking out "subsections 49.3(4) or 49.4(2)" in the third and fourth lines of clause (c) and substituting "subsections 49.3(1.1), (2.1) or (4) or 49.4(2)."
The Vice-Chair: Any further discussion on government motion 25? If not, all those in favour? All those opposed? Motion 25 carries.
Government motion 26.
Mr Martiniuk: I move that subsections 49.10(10) and (11) of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Seizure despite privilege
"(10) An order under this section may authorize the seizure of a thing even if the thing is privileged or confidential.
"Admissibility despite privilege
"(11) Despite clause 15(2)(a) and section 32 of the Statutory Powers Procedure Act, a thing seized under this section is admissible in a proceeding under this act even if the thing is privileged or confidential.
"Privilege preserved for other purposes
"(12) Subsections (10) and (11) do not negate or constitute a waiver of any privilege and, even though a thing that is privileged may be seized under subsection (10) and is admissible in a proceeding under subsection (11), the privilege continues for all other purposes."
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Ms Castrilli: The objections that I've made elsewhere, that confidentiality and privilege are not protected in this legislation, speak volumes again in this motion. I have nothing further to add other than what I said before. If the government continues with this, I hope that there will be some very strong discussions with the privacy commissioner to ensure that there are very clear guidelines as to privilege and confidentiality. This kind of provision worries me. I don't know that this constitutes much change from what's in the bill before us, but in general this is exactly the kind of issue that the privacy commissioner has addressed, and I don't think the government has addressed those concerns.
The Vice-Chair: Any further discussion on government motion 26? All those in favour of government motion 26? All those opposed? I declare the motion carried.
Liberal motion 27.
Ms Castrilli: I move that section 49.12 of the Law Society Act, as set out in section 21 of the bill, be amended by adding the following subsections:
"Offence
"(4) A person who knowingly contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
"Same
"(5) Subsection (4) does not apply to a contravention of subsection (1) that is authorized by section 49.13."
This is one of two motions that we're putting forward -- the other one is 29 -- which deal with the issue of offences in the event privilege and confidentiality are breached. I think this is one of the shortcomings of the act. It's obviously indicated as a shortcoming in the privacy commissioner's view. We've attempted here to ensure that that particular deficiency is addressed.
The Vice-Chair: All those in favour of Liberal motion 27? All those opposed? I declare the motion lost.
Government motion 28.
Mr Martiniuk: I move that subsection 49.15(2) of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Investigation by commissioner
"(2) If a complaint is referred to the commissioner under the bylaws, the commissioner has the same powers to investigate the complaint as a person conducting an investigation under section 49.3 would have with respect to the subject matter of the complaint, and, for that purpose, a reference in section 49.3 to the secretary shall be deemed to be a reference to the commissioner."
The Vice-Chair: All those in favour of government motion 28? All those opposed? It carries.
Liberal motion 29.
Ms Castrilli: I move that section 49.18 of the Law Society Act, as set out in section 21 of the bill, be amended by adding the following subsection:
"Offence
"(4) A person who knowingly contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $10,000."
I've already spoken to this motion when I spoke to 27. The same arguments apply.
The Vice-Chair: Any further discussion on motion 29? If not, all those in favour of Liberal motion 29? All those opposed? The motion is defeated.
Government motion 30.
Mr Martiniuk: I move that paragraph 2 of subsection 49.21(2) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "under paragraph 1, 2, 3 or 4 of subsection 12(1)" in the first and second lines and substituting "under paragraph 1 or 2 of subsection 12(1) or under subsection 12(2)."
The Vice-Chair: All those in favour of government motion 30? All those opposed? I declare the motion carried.
Government motion 31.
Mr Martiniuk: I move that subsection 49.29(4) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "under paragraph 1, 2, 3 or 4 of subsection 12 (1)" in the first and second lines and substituting "under paragraph 1 or 2 of subsection 12(1) or under subsection 12(2)."
The Vice-Chair: All those in favour of government motion 31? Opposed? Government motion 31 carries.
Government motion 32.
Mr Martiniuk: I move that subsection 49.30(1) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "who is an elected bencher" in the second and third lines.
The Vice-Chair: All those in favour of government motion 32? Opposed? The motion carries.
Government motion 33.
Mr Martiniuk: I move that subsection 49.31(5) of the Law Society Act, as set out in section 21 of the bill, be amended by striking out "under paragraph 1, 2, 3 or 4 of subsection 12(1)" in the second and third lines and substituting "under paragraph 1 or 2 of subsection 12(1) or under subsection 12(2)."
The Vice-Chair: All those in favour of government motion 33? Opposed? I declare government motion 33 carried.
Liberal motion 34.
Ms Castrilli: I move that subsections 49.32(1) and (2) of the Law Society Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Appeals to appeal panel
"(1) A party to a proceeding before the hearing panel may appeal a final or interlocutory decision or order of the hearing panel to the appeal panel.
"Appeal from costs order
"(2) An appeal of an order under section 49.28 shall not be commenced until the hearing panel has given a final decision or order in the proceeding."
Again, this is an issue of due process. If decisions are going to be made that affect people's lives, there ought to be a right of appeal. I think the parliamentary assistant has already acknowledged this through some previous motions put forward by the government. I hope that the government will support it.
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The Vice-Chair: All those in favour of Liberal motion 34? All those opposed? I declare the motion defeated.
Government motion 35.
Mr Martiniuk: I move that clause 49.38(b) of the Law Society Act, as set out in section 21 of the bill, be amended by inserting "subsection 30(3)" after "under" in the first line.
The Vice-Chair: All those in favour of government motion 35? All those opposed? Motion 35 is carried.
Shall section 21, as amended, carry? All those opposed? Section 21, as amended, is carried.
Section 22 through to section 27: Is there any discussion on those sections? If not, all in favour of passing sections 22 through to 27? Opposed? That's carried.
Liberal motion 36.
Ms Castrilli: Chair, in view of the disposition of our motion 34, this is withdrawn.
The Vice-Chair: Motion 37.
Ms Castrilli: I move that subsection 61.2(4) of the Law Society Act, as set out in section 28 of the bill, be struck out.
That section, you will recall, deals with the application of the Statutory Powers Procedure Act, which is a minimum standard of due process at law, which in certain circumstances would not apply to this legislation. We've heard a fair amount of evidence before us in committee that this ought not to be the case, that particularly with an act that applies to the legal profession, it ought to be held at least to the same minimum standards as other legislation. I think the rest of it is all the same.
The Vice-Chair: All those in favour of Liberal motion 37? All those opposed? I declare it defeated.
Shall section 28 carry? Opposed? I declare section 28 carried.
Liberal motion 38.
Ms Castrilli: I move that paragraph 12 of subsection 62(0.1) of the Law Society Act, as set out in subsection 29(1) of the bill, be struck out.
This issue was raised by the law book publishers, you may recall, in their session. Their essential contention, if I understood it, was that the bill seeks to take away the power of Lieutenant Governor in Council over the reporting and publication of decisions of the courts and leaves it entirely in the hands of convocation to make bylaws.
I was told by the law society that that was not the intent and I asked the question, "If it's not the intent and you don't see this that this is a change, then why make the change?" If that's the intent, and that's obviously what they've indicated to us, then there is no reason for the amendment in this particular statute and we should go back to what is in the original bill.
Mr Kormos: I'm voting against this. I was curious about what the publishers were getting at from day one. Mr Morrison's letter to Harnick that was released, the cigar and cognac letter, I was curious about that. When you read it in context, "Convocation may make bylaws," numbers 1 through 48, I think it becomes clearer and clearer that this is what empowers the law society to engage in its own little exercise of publishing the ORs.
Quite frankly, I've got to tell you right now I don't have a whole lot of sympathy for the law book publishers. Do you know what they charge for those things? Lots. Their arguments are things like small markets, but the American law book publishers, which have a market that's what, 10 times ours, charge lots too. If that argument were valid one would expect to see a somewhat lower price in the States where the scale is that much larger, and you don't. American law book prices are atrocious. Then they have these scams -- the updating services, the loose-leaf services, stuff like that -- I call them scams. You can end up paying more on a subscription than you can if you just buy a new loose-leaf set once a year sometimes. I appreciate there is the issue of timeliness. You want to have these things, and if you want them, I suppose you've got to pay for them.
Also there is a slick sort of breakdown between the various publishers. One publishes the Canadian criminal cases; the other one publishes the CRs. In many instances they overlap, they publish the same cases, but you've got to read both or buy both in case you miss a case from one or the other, and I'm just speaking of those two series by two different publishers.
Do you want to know what I would like to see? I would like to see the private sector completely out of reporting cases. Quite frankly, I think a strong argument could be made for the law society to be responsible for all reporting and to do it on a non-profit basis. There would be uniformity. There wouldn't be this overlapping. There wouldn't be the gouging that takes place, and I suspect, at the end of the day, both the legal profession and the public would be far better served. Maybe the only problem here is that Mr Morrison never sat down with me and had a cognac and a cigar, but I don't smoke cigars and my taste in cognac is rather unrefined. I wouldn't know what to do with a good cognac. I'd end up drinking it out of a water tumbler, and I'm sure Mr Morrison drinks his out of a snifter, one of those big ones, a Waterford snifter, crystal -- at least Waterford if not a Lalique.
I tried, with the legal publishers, to be sympathetic and then I reflected upon the costs that are involved in buying those services and the quasi-duplication and I thought, "By God, what an argument for a one-source -- the law society -- non-profit distribution of case reporting." I appreciate that when you come to texts and things like that, that's a different story. Authors can market their writings if, when, where and how they please.
When it comes to case reporting, part of the argument was that this is public information and that it's in everybody's interest to have as much distribution of reported cases and have as many reported cases as possible, short of having the garbage bin full of the stuff that you don't want to have to read because it's of little relevance. So there's a strong public interest in getting this out to as many lawyers, much of the public and other people involved in the justice system, all aspects of the justice system.
I'm not very sympathetic to the private law book publishers, am I, Chair? You're right, I'm not. I'm sure they do a good service, but I'm not going to support this amendment for the reasons I've tried to state.
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Ms Castrilli: I've got to say, as usual, I'm impressed by Mr Kormos's illuminating comments but I wish they were relevant. The fact is that if we were discussing Mr Kormos's private member's bill on regulating the legal publishing industry, I would agree with him. I might even vote for it, but that's not what we're doing here.
My questions were very specific of the law society as to whether they envisioned that these amendments they sought changed the status quo. They said no. I've got to say, if they don't change the status quo, why are we bothering with the amendment? That's the only issue we're talking about here.
If the issue is to ensure that there is free access to reporting, which the law society assured me was their position, then why are we bothering with the amendment? It seems to me we know what the statute says. We're not entirely sure what the amendment says, and I'd rather stick with the statute than an amendment that I don't fully understand.
The Vice-Chair: Any further discussion?
We'll call the question for Liberal motion 38. All those in favour? All those opposed? The motion is defeated.
Any further discussion on section 29? Shall it carry? Opposed? Section 29 is carried.
Liberal motion 39.
Ms Castrilli: Chair, in view of previous discussion, this motion is withdrawn.
The Vice-Chair: Sections 30, 31, 32 and 33: Any further discussion on that? All in favour of those sections carrying? Opposed? Carried.
Government motion 40.
Mr Martiniuk: I move that subsection 34(2) of the bill be amended by striking out "paragraph 5" in the fifth and sixth lines and substituting "paragraph 3."
The Vice-Chair: Is there any further discussion on government motion 40?
Ms Castrilli: Just a comment more than anything else. This piece of legislation was introduced by the government some time ago, and we in the Liberal Party exhorted the government to act in an expeditious manner with respect to this piece of legislation. We indicated we agreed with the thrust of it. There were some concerns that we wanted to voice through hearings. We've heard from a number of presenters that indeed there are concerns. Obviously with respect to this legislation there's still some work to be done and I certainly would exhort that the privacy commissioner be very much involved in the next step, because it's important.
Having said that, we've always been in favour of moving this piece of legislation forward as quickly as possible. It has taken some time for subcommittee meetings to be scheduled and for hearings to be scheduled. There's very little time before the House rises. I know there is some pressure to get this legislation through before we rise for Christmas. I exhort the members of the committee to exhort the government, whose power it is to bring this bill forward to third reading. I exhort them to do it as quickly as possible and that we move expeditiously to pass it into law.
The Vice-Chair: Any further discussion on government motion number 40? All those in favour? All those opposed? I declare the motion carried.
Will section 34, as amended, carry? Opposed? Section 34 carried.
Sections 35 through to 38: Are there any further discussions on those sections? If not, all those in favour? All those opposed? I declare sections 35 to 38 carried.
Section 39, the short title of the bill: Shall that carry? Opposed? The motion carried.
Shall the long title of the bill carry? All those in favour? All those opposed? Carried.
Shall Bill 53, as amended, carry? All those in favour? All those opposed? Bill 53, as amended, carried.
Shall Bill 53, as amended, be reported to the House?
Mr Kormos: A recorded vote, please.
Ayes
Boushy, Castrilli, Kormos, Martiniuk, Stewart, Bob Wood.
The Vice-Chair: Thank you for your patience, ladies and gentlemen, and thanks for your efforts. We appreciate it. We are adjourned.
The committee adjourned at 1726.