Legislative Assembly of Ontario

INSURANCE STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT LES LOIS CONCERNANT LES ASSURANCES

AFTERNOON SITTING

CONTENTS

Thursday 18 February 1993

Insurance Statute Law Amendment Act, 1993, Bill 164

STANDING COMMITTEE ON FINANCE AND ECONOMIC AFFAIRS

*Chair / Président: Hansen, Ron (Lincoln ND)

*Acting Chair / Président suppléant: Klopp, Paul (Huron ND)

Vice-Chair / Vice-Président: Sutherland, Kimble (Oxford ND)

Caplan, Elinor (Oriole L)

Carr, Gary (Oakville South/-Sud PC)

Christopherson, David (Hamilton Centre ND)

Jamison, Norm (Norfolk ND)

*Kwinter, Monte (Wilson Heights L)

Phillips, Gerry (Scarborough-Agincourt L)

Sterling, Norman W. (Carleton PC)

Ward, Brad (Brantford ND)

Wiseman, Jim (Durham West/-Ouest ND)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Dadamo, George (Windsor-Sandwich ND) for Mr Ward

Daigeler, Hans (Nepean L) for Mr Phillips

Haeck, Christel (St Catharines-Brock ND) for Ms Ward

Harnick, Charles (Willowdale PC) for Mr Sterling

Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND) for Mr Christopherson

Klopp, Paul (Huron ND) for Mr Jamison

Mancini, Remo (Essex South/-Sud L) for Mrs Caplan

Owens, Stephen (Scarborough Centre ND) for Mr Sutherland

Tilson, David (Dufferin-Peel PC) for Mr Carr

Winninger, David (London South/-Sud ND) for Mr Wiseman

Also taking part / Autres participants et participantes: Kormos, Peter (Welland-Thorold ND)

Owens, Stephen, parliamentary assistant to the minister responsible for automobile insurance review

Simons, Craig, legal counsel, automobile insurance review, Management Board of Cabinet

Clerk pro tem / Greffier par intérim: Carrozza, Franco

Staff / Personnel: Beecroft, Doug, legislative counsel

The committee met at 1008 in committee room 1.

INSURANCE STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT LES LOIS CONCERNANT LES ASSURANCES

Consideration of Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters / Loi modifiant la Loi sur les assurances et certaines autres lois en ce qui concerne l'assurance-automobile et d'autres questions d'assurance.

The Chair (Mr Ron Hansen): Good morning. This morning we're in day four of clause-by-clause of Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters. Did everyone receive a copy of the case of Zurich Insurance Co against Michael G. Bates? Okay. We're going to be going on to section 2 of the bill, and Mr Tilson has the floor.

Mr David Tilson (Dufferin-Peel): Thank you, Mr Chairman. I guess, at the outset, we did leave off where Mr Owens had advised the committee of the report of the Supreme Court of Canada in the case of Zurich Insurance Co and Michael Bates. The clerk's office, as you indicated, has provided us with a copy of that.

I think it is useful to have this decision, so I do thank the parliamentary assistant for bringing it to our attention, although I must confess I find it strange that in his comments that it was this case -- at least he gave the impression that it was this case, this Supreme Court of Canada decision where Mr Justice La Forest wrote the majority decision --

Interjection.

Mr Tilson: Was it Sopinka? You're correct; Mr Justice Sopinka wrote the majority decision. This decision, which began 10 years ago, went to the Supreme Court of Canada in 1988, and as you can see from the date of the reports at the top of the first page, it was reported in the fall of 1992.

I find it amazing, quite frankly, that the parliamentary assistant would come to this committee and give this committee the impression that it was this decision which spurred on the government to eliminate rate classification, because that isn't what happened at all. This bill, just to remind Mr Owens, was introduced on December 5, 1991, and the decision of the Supreme Court of Canada was made a year later.

Interjection.

Mr Tilson: I'm sorry? Well, it's rather strange. I would go so far as the parliamentary assistant's misleading us.

Interjections.

Mr Stephen Owens (Scarborough Centre): Point of privilege.

The Chair: Point of privilege.

Mr Owens: Mr Tilson is imputing motive and alleging that I've misled the committee. I would suggest that is wrong and I would ask him to withdraw that comment.

Mr Tilson: I think we should talk about that, Mr Chairman, because we have a case --

Mr Owens: There's no discussion about that.

Mr Tilson: I can have a discussion all I want. The fact of the matter is that this bill was introduced in December 1991 and the decision of the Supreme Court of Canada wasn't reported until the fall of 1992, almost a year later.

The Chair: Mr Tilson, maybe you could just withdraw that comment, "misleading."

Mr Tilson: I'll withdraw it.

The Chair: Fine, carry on, Mr Tilson.

Mr Tilson: However, the fact of the matter is that Mr Owens has led us to believe, in his presentation yesterday in response to some of my questions as to why the government was proceeding, that it was because of the decision of the Supreme Court of Canada of Zurich Insurance Co and Bates, that that was the reason why this whole principle of eliminating the rate classification system, particularly based on gender and age, came about.

Common sense can tell us that when you have a bill that was introduced almost a year before the Supreme Court of Canada decision came out -- I'll leave it to your own. So you're right. I have withdrawn the word "misleading" because I am quite aware that there are certain words that for unusual reasons are unparliamentary, but you all draw your own conclusions when you look at those two dates.

What's going on here, Mr Chairman?

The Chair: What would you --

Mr Tilson: What's he doing?

Mr Owens: In terms of --

The Chair: What's your purpose, Mr Owens?

Mr Tilson: He's interrupting me.

Interjection: He doesn't have the floor.

Mr Owens: In terms of clarification of the comments that were made yesterday, I simply did not say that this was the only factor.

Mr Tilson: Come off the pot, Mr Chairman. That is not a point of clarification.

The Chair: No, it's not.

Mr Tilson: That is absolutely nothing.

The Chair: No, it's nothing.

Mr Tilson: It's babbling. It's muttering.

The Chair: Okay, Mr Tilson --

Mr Tilson: He spent yesterday interrupting Mr Mancini and now he's going to spend today interrupting me.

The Chair: Carry on, Mr Tilson.

Mr Remo Mancini (Essex South): He spent all day interrupting me.

Mr Tilson: Mr Mancini wasn't even able to get his presentation out.

The Chair: It's hard for the Chair to know until it comes forward.

Mr George Dadamo (Windsor-Sandwich): We've heard enough of Remo. We don't want to hear any more of Remo.

Mr Tilson: Well, I hope you listened to some of Mr Mancini's comments, because some of his comments were certainly important and should be considered by this committee.

Now, Mr Chairman, since the parliamentary assistant did raise this decision as the reason -- and he can say all he likes today. That was what you said yesterday, that this was the reason, the Supreme Court of Canada decision, which came a year after this bill was introduced. That was the reason. So I guess they have a strange crystal ball in the Ministry of Financial Institutions as to what the Supreme Court of Canada said.

But now that we've all had a chance to read this case, let's start going over it, because again the parliamentary assistant has led us to believe that because of the decision of Chief Justice Sopinka, this is going to be the law of the land as to what he indicated. I would submit that what he said isn't what this case says, and we're going to go through that, because I think it's quite clear that if he's speaking on behalf of the government, either he made a terrible error or he and the Ministry of Financial Institutions, or the Minister of Financial Institutions, as he then was, have no idea as to what they're doing.

Mr Mancini: That's closer to the truth.

Mr Tilson: The whole gist of this decision, which was reported on in November 1992, began 10 years ago, went to the Supreme Court of Canada in 1988 and was finally heard last fall, a year after Bill 164 was introduced. This was a case which, if you'll turn to page 322 of the copy of the report the clerk has given us, I think we should spend some time on, because I want to be quite clear why the government is doing what it is.

If there's something else other than this case, then we're going to have to hear about it, because certainly the impression left by the parliamentary assistant yesterday was that it was because of this case, this decision of the Supreme Court of Canada, that the government is eliminating the rate classification. I'm going to read parts of this decision, I say to the parliamentary assistant and members of the committee -- and I've asked for a copy of Hansard -- because what he said yesterday and what this case says are two different things.

"A board of inquiry, appointed pursuant to the Ontario Human Rights Code...upheld a complaint made in May, 1993, that the...insurer engaged in prohibited" --

The Chair: Mr Tilson, you said "1993." Have you got the right date?

Mr Tilson: I apologize, 1983.

Interjection.

Mr Tilson: Sure, I'll put in all the words if you want. I'm trying to shorten the proceedings, but if you want me to read all the words --

Mr Mancini: Mr Tilson, take your time and put in everything that's said.

Mr Tilson: I'm going to read all the words. I apologize. I'm going to put all the words in at your request at the government side of this committee.

Interjection.

The Chair: Mr Johnson.

Mr Tilson: I'm going to start again.

The Chair: Okay. I just wanted to correct you so --

Mr Tilson: I'm going to read much slower because I understand I've left some words out.

"A board of inquiry, appointed pursuant to the Ontario Human Rights Code, 1981, upheld a complaint made in May, 1983, that the respondent insurer engaged in prohibited discriminatory practices in that young, single, male drivers were charged higher car insurance rates than young, single, female drivers or, young, married, male drivers or any drivers 25 years of age or over. The complainant alleged denial of the right to contract on equal terms without discrimination and of the right to equal treatment in services."

That certainly appears to be the gist of what the parliamentary assistant said, that he was worried about discrimination. As to section 2 and the succeeding sections dealing with the rate classification system, he and his minister are worried about discrimination and it was because of this case, which hadn't been reported on, that they introduced this principle into Bill 164.

"Respondent conceded that the classification system upon which its premiums were based constituted a prima facie infringement of the code but argued that the distinction between classes of drivers was based on reasonable and bona fide grounds and therefore fell within the exception provided by s. 21 of the code.

"The board of inquiry found that the code had been contravened but the Divisional Court and the Court of Appeal held otherwise. At issue here was whether differentiation in automobile insurance rates based upon age, sex and marital status was reasonable and bona fide within the meaning of s. 21 of the Human Rights Code, 1981."

The appeal was dismissed. That was the gist of it, which I must say wasn't the impression that was left by the parliamentary assistant yesterday. It was quite the opposite.

Mr Owens: There are a few more pages you should read.

Mr Tilson: You're darned right. We're going to read a lot of this case because what you said yesterday isn't the case today.

Mr David Winninger (London South): Have you run out of other material?

Mr Tilson: What do you want me to do, Mr Winninger? I'm starting to review this case.

The Chair: Mr Tilson, as you notice, no mikes are on anyplace else in the room. Just carry on. The Chair's listening to you.

Mr Tilson: Well, tell all that riff-raff to keep quiet.

The Chair: I've heard it on all sides.

Interjections.

Mr Winninger: If I wanted to be in law school, I wouldn't have run for politics.

Mr Monte Kwinter (Wilson Heights): If you could have got into law school you wouldn't have run for politics.

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The Chair: Order. Mr Tilson, you have the floor.

Interjections.

Mr Tilson: The decision as reported in the headnote, Mr Chair, which I'd like to refer to, and which was the majority decision of the Supreme Court of Canada, was, as I indicated, that the appeal should be dismissed. The decision was that:

"The determination of insurance rates and benefits does not fit easily within traditional human rights concepts. The underlying philosophy of human rights legislation is that an individual has a right to be dealt with on his or her own merits and not on the basis of group characteristics. Exceptions to this legislation should be narrowly construed. Insurance rates, however, are based on statistics...."

And this is what I was speaking of yesterday in my comments to the committee, that this whole process has been developed over the years with actuarial reports and statistics, not on the winging-it that appears to be going on with this government on this topic and many other topics in Bill 164.

You have to know what you're doing. You have to have sound facts. You have to have costing. You have to have a whole slew of things, and all of these principles should be followed before Bill 164 is passed; and section 2 and all of the surrounding sections that follow section 2 on that principle are prime examples.

This government is winging it, not as to what existed in the previous system, where you based your decision on facts, you based your decision on actuarial reports -- and I'm not talking about Mercer, which was a pretty general sort of philosophy. It didn't go into all of the details on these regulations that we're not supposed to talk about.

I'm continuing with the decision:

"Although not all persons in the class share the same risk characteristics, it is wholly impractical that each insured be assessed individually" -- and that isn't what the parliamentary assistant said yesterday. "Sometimes the class or group classification chosen will coincide with a prohibited ground of discrimination, bringing the rating scheme into conflict with human rights legislation. The code, however, exempts an insurer from liability for discrimination if based on reasonable and bona fide grounds.

"An important principle of insurance practice is that premiums charged to individual policyholders vary as much as possible in accordance with the degree of risk posed by the policyholder. The degree of risk is necessarily determined on the basis of groups sharing characteristics material to the risk. Inevitably, some will be placed in a group who do not share the average characteristics of that group with the result that the rate discriminates against them. The basic human rights principles must take into account these differences when applied in the context of insurance.

"Section 21 provides a defence to a prima facie discriminatory practice if reasonable and bona fide grounds for that practice exist. A discriminatory practice is `reasonable' within the meaning of s. 21 of the code (a) if it is based on a sound and" -- and I want you to listen to these words and read them with me, because this is important -- "accepted insurance practice, and (b) if there is no practical alternative." And if there is no practical alternative.

I'm going to stop there, because the government members, particularly Mr Owens, may or may not be correct in saying that this is discriminatory. The Supreme Court of Canada says that if you're going to put something else, you have to have an alternative. They don't have an alternative. They're winging it. They don't have any alternative at all. Remember, recall the answers that the parliamentary assistant gave to my questions yesterday. They have no idea. They're going to work on it. They're probably going to have a task force.

"A practice is sound if it is desirable to adopt it for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk. The availability of a practical alternative is a question of fact to be determined having regard to all of the facts of the case. The practice, to meet the test of `bona fides,' must be adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the code."

That's not really complicated legalese which the Chief Justice said. It's in very clear English and I submit it is not what the parliamentary assistant said yesterday.

"Human rights values cannot be overridden by business expediency alone. To allow `statistically supportable' discrimination would undermine the intent of human rights legislation which attempts to protect individuals from collective fault. It would also perpetuate traditional stereotypes with all of their invidious prejudices. Whether there was an alternative, which in all the circumstances was practicable, must be considered."

Here we have a government that's going to put forward an alternative, but it won't tell us what it is. Why in the world are you contravening the law of this land, the law of the Supreme Court of Canada, because that's what Bill 164 is going to do. It's going to contravene a decision that was made last fall, after your bill was implemented, which contravenes the law of this land.

Carrying on at page 324:

"Setting premiums on a basis that did not rely on the classifications then in use was not a practical alternative for the industry. It would have been even more impractical for the respondent unilaterally to adopt its own classifications based on non-discriminatory criteria because actuarially reliable figures, based on only its own data, were impractical or impossible to obtain. The fact that it was theoretically possible to collect data based on other criteria does not establish that reasonable alternatives to the current system exist."

So I can tell you, while we're reading this thing -- and we're going to read some more of it; we're going to refer to some more comments in this decision -- I want the parliamentary assistant to get together all the actuarial and statistical advice, information, that his government has that's going to put forward this unknown new system that he hasn't told us yet -- and I suspect he hasn't the foggiest idea what it's going to be -- and I think it should be presented to this committee because we need to have all of that information.

There are some comments that Mr Justice Sopinka makes in the body of his decision that are going to interest him even more because I don't think he's read this case. I don't think Mr Owens has read this case. He hasn't the foggiest idea what this case says. Some of his staff handed him a note yesterday and said, "We'll get Tilson here. Read this out," and that's what he did. He hasn't read it. I'll bet you $10 he hasn't read it; so we're going to read some of it this morning.

I'm continuing on with the reading of the headnote, the last two paragraphs of the headnote:

"To require an insurer to establish that the very essence of its business would be undermined if it could no longer rely on discriminatory group characteristics for its rate classification system is too high a standard and is not required by section 21. This standard ascribes too narrow a meaning to what constitutes a practical alternative. An alternative may be impractical even though its adoption would not undermine the very essence of a business. Furthermore, this standard tended to minimize the importance of the statutory framework within which the industry and the respondent were required to operate."

The final paragraph in the headnote -- you listen to this, Mr Owens; you listen to this very carefully, or if you don't listen to it, at least read it:

"The insurance industry must be allowed time to determine whether it can restructure its classification system in a manner that would eliminate discrimination based on enumerated group characteristics and still reflect the disparate risks of different classes of drivers. While the situation as it existed in 1983 did not provide a reasonable alternative to setting premiums based on age, sex and marital status, the situation today and in the future may be quite different. The insurance industry must strive to avoid setting premiums based on enumerated grounds."

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Of course that's what the Supreme Court of Canada is saying, but it's also saying that you must have statistics; you must have an alternative. You people simply can't wing it and say, "We're going to change the system." You must be able to replace it with something.

Mr Paul Klopp (Huron): We are not winging it.

Mr Tilson: You have no idea what in the world you're doing. You don't know the alternative. I'm looking forward to hearing Mr Klopp come forward in the next rotation and tell us about this wonderful new classification system he's going to have, and I'm looking forward to him filing with this committee the statistics and actuarial facts he has to substantiate this new, wonderful system. The brave new world of the NDP is a joke.

Mr Chairman, that concludes the portion of the headnote, but I would like to refer to a couple of comments in the body of Mr Justice Sopinka's majority decision. The first one is at page 338, if you're following along with me -- I know the parliamentary assistant is -- and the top part of page 339.

"The determination of insurance rates and benefits does not fit easily within traditional human rights concepts. The underlying philosophy of human rights legislation is that an individual has a right to be dealt with on his or her own merits and not on the basis of group characteristics. Conversely, insurance rates are set based on statistics relating to the degree of risk associated with a class or group of persons. Although not all persons in the class share the same risk characteristics, no one would suggest that each insured be assessed individually. That would be wholly impractical."

I say to you that Bill 164 is wholly impractical, but more specifically, this unknown system, which you haven't yet told us. In fact, you didn't even give us a preamble as to why you're making your changes in this section 2, why this amendment is coming through. We've had to pull teeth, and the teeth that we've been pulling are absolutely rotten.

I'd like to continue on with another quotation. I'll admit some of these things have been said in the headnote, but I think it's important that we emphasize the issues of this very important decision.

The Chair: Mr Tilson, I'm not following along. Can you say the page and where you're reading from?

Mr Tilson: The last page I read was page 338, and the next page I'm going to refer to is page 342.

The Chair: Okay, fine. That's a lot easier for all the committee members to follow.

Mr Tilson: It's at the very bottom of page 342.

"In my opinion, a discriminatory practice is `reasonable' within the meaning of section 21 of the code if (a) it is based on a sound and accepted insurance practice."

There have been no facts presented to this committee that the new proposal of the NDP is based on a sound and accepted insurance practice. In fact, we don't even know what the new system is. But I would say to you that based on the law of the land, it's incumbent upon the government to file facts to this committee if we're going to properly understand what in the world section 2 is all about.

To continue: "and (b), there is no practical alternative. Under (a), a practice is sound if it is one which it is desirable to adopt for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk. Under (b), the availability of a practical alternative is a question of fact to be determined having regard to all of the facts of the case.

"In order to meet the test of `bona fides,' the practice must be one that was adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the code."

Again, I appreciate that many of those words were given in the headnote, but I read them for emphasis.

I think also I'd like to refer to the portion on the same page -- that's 343 -- where they talk about the statistical plan. This does give a little bit of the history of this issue. I know you're reading it, but I'd like to emphasize it to the committee, Mr Chairman.

"All automobile insurers in Ontario are required by the Insurance Act...to compile and report statistics and other insurance data in the form and with the content dictated by the `statistical plan' prescribed by the superintendent of insurance."

Of course, this committee hasn't seen any of that information. If it's out there, and I assume it is, this committee hasn't received any information from the government on that.

"It is the superintendent of insurance who is ultimately responsible for the supervision of the business of insurance in the province of Ontario. This information, composed mainly of statistics regarding accident losses, is published by the industry in a document commonly referred to as the `green book.' The statistical plan requires that data be collected in relation to a number of factors including age, sex and marital status. This statistical plan was originally developed in the 1920s and early 1930s in order to provide the insurance industry with a sufficient statistical basis to set automobile insurance rates. A similar plan was developed in most Canadian jurisdictions. The entire structure of the automobile rate-setting system in Ontario flows from this collective loss experience, compiled within a legislatively determined statistical framework."

So, Mr Chairman, where we've got to now has been based on statistics, actuarial evidence, facts based over the years, and here's this brave new government going to come forward with no facts because none have been filed. The Supreme Court of Canada says that if you're going to do this, you must have facts. These people don't have any facts. They're winging it, just like they're winging the entire bill.

"As well as requiring the collection of certain data, the Insurance Act, through ss 393(b)(iii) and section 396, gives the superintendent the power to prevent any insurance practices he or she finds to be unfair or deceptive."

So I would hope that the parliamentary assistant would be cognizant of that provision as well, and may indeed have some comments to make.

"While much has been made, in this appeal, of the wish of the superintendent to move from the current rating practices" -- I'm on page 344 now, Mr Chairman -- "no order has ever been made by the superintendent in regard to the industry practice of setting automobile insurance premiums based on age, sex and marital status. Mr Newton, the senior actuary in the office of the superintendent of insurance for Ontario, admitted in evidence given before the board of inquiry that if the office had concluded that there was bad faith relating to the structuring of the statistical plan, the superintendent would have directed that the plan be amended. Equally, the successor to the superintendent (the commissioner of insurance)...has done nothing to prohibit differentiation on the basis of age, sex or marital status despite having wide-ranging powers to do so."

So there is a plan out there. There's an existing plan. This isn't a concentrated effort to discriminate against young males, as the Supreme Court of Canada has told us. That's not what the parliamentary assistant said yesterday. The Supreme Court of Canada said that's just not the case. They encourage the insurance industry to develop another plan, and there have been no facts given by the government as to what they're doing to encourage that to take place. There have also been no facts presented to this committee, or to anywhere that I know of, as to statistics that the government is developing to create a new plan. The whole system will be chaotic if the government continues with its plan to eliminate the rate classification system based on age, gender and marital status.

Page 345 -- I haven't got too many more to refer to, Mr Chairman --

The Chair: There was one thing: Being a lawyer, down on the bottom of 342, that was Alberta Dairy Pool against Alberta. It was the same one: "it is based on a sound and accepted insurance practice; and (b) there is no practical alternative."

1040

Mr Tilson: Sorry, where are you referring, Mr Chairman?

The Chair: Page 342 -- you quoted that -- at the bottom.

Mr Tilson: Yes.

The Chair: Do these rulings come down from a case previously? It seems that the same wording, as a lawyer -- I know if you buy life insurance, you could apply this. It's the same principle.

Mr Tilson: I'm simply saying, Mr Chairman, that this whole process of the rate classification system has been built up over the years and that's why I read the historical part of it, going back to 1920. They've looked at statistics.

The Chair: But they keep going back to the case.

Mr Tilson: They look at statistics as to what young male drivers have done, what married people have done, what unmarried people have done -- all of these things -- and on the face of them they sound discriminatory, but the fact of the matter is there are statistics, there are actuarial reports, there are facts. This government has not presented its facts to this committee to justify what it's doing and, furthermore, to comply with the Supreme Court of Canada decision, as presented by the parliamentary assistant yesterday, the Zurich Insurance Co and Bates.

The Chair: I was just wondering -- it's exactly the same wording in each case.

Mr Tilson: It bewilders me, Mr Chairman, why the government is doing what it's doing with this case in mind. Mind you, this case had not been held, had not been decided upon, when the bill was first introduced and that's a factor we must not overlook. I think that, notwithstanding the fact the Court of Appeal --

The Chair: Sorry I interrupted you, I just wanted the legal aspect, used over and over again --

Mr Tilson: No, that's quite all right. I think it's important. I think we should talk of all of these things, Mr Chairman. I encourage you to add your comments, and other members to ask for clarification, because we may need the counsel to clarify what his thoughts are on this.

On page 345, continuing on with Mr Justice Sopinka's decision:

"In fact, the industry and the superintendent of insurance have been trying, since at least 1977, to develop acceptable alternatives to the criteria of age, sex and marital status." So this isn't something new. That's the amazing part of it; the government, from the Honey Harbour decision, has decided to do something new, but it doesn't know what it's doing. They have no idea what they're doing. They certainly haven't read the decision of Zurich Insurance Co and Michael G. Bates. Certainly, the parliamentary assistant hasn't, as a result of his observations from yesterday.

"In this regard, the office of the superintendent embarked on a search for effective alternative criteria. In parallel, the industry also undertook an exploration for alternatives. While he sought changes to the manner in which premiums were set, the superintendent stressed that `a change in the statistical base should be allowed a sufficient length of time to gain credible experience from an actuarial standpoint.'"

I doubt very much whether this brave new government has done that.

Mr Klopp: Where does it say in section 2 that on such-and-such a date, all of a sudden something's going to be changed? I wish we could stick to the section.

Mr Tilson: I'd be pleased to refer you to the section. Do you want me to read it to you, Mr Chairman, through you to Mr Klopp?

Mr Klopp: Where does it say that on a certain date something's going to change?

Mr Tilson: The government of this province, this brave new government, has, as a result of section 2 and as a result of statements made by the House leader and Minister of Financial Institutions, the minister responsible for auto insurance, made statements in the press, publicly, in the scrums, all over the place, that the government will be eliminating rate classification based on age, sex and marital status. What section 2, of course, is doing is talking about the definition of the rate classification system. The parliamentary assistant, in his wisdom, yesterday tried to tell us all what that meant. But he has no idea what it means. They're still working on it. So you're asking us, you're asking the people on the opposition, to accept what you're saying, that by regulation you're going to come up with something. You can't come up with something unless you have facts and statistics. You can't wing it in government. You have to have facts to rely on what you're doing.

Mr Klopp: Which the industry is working on, since 1977.

Mr Tilson: Why in the world would you put this into Bill 164 when that work is still under way? You can't do it. You can't change the system in the middle of the stream.

Mr Klopp: Nothing is changing. We're allowing for changes.

Mr Tilson: Why would you allow for the system?

The Chair: I'm sorry. Mr Tilson, You have the floor. Mr Klopp's mike isn't on. It's going to look a little funny when we get the Hansard back.

Mr Tilson: Mr Chairman, I'm sure Hansard will pick up everything Mr Klopp is saying.

Mr Winninger: The Tories have always been afraid of change.

Mr Tilson: There's going to be a change in a couple of years, I'll guarantee that.

The Chair: Order. Mr Tilson, would you mind getting back on with your comments?

Mr Tilson: Continuing on, Mr Chairman, with Mr Justice Sopinka's comments, in the middle paragraph on page 345, "It should be noted that changes in a system as complex as insurance cannot be made instantaneously," Mr Klopp.

Mr Klopp: Exactly. That's why we're here.

The Chair: Through the Chair.

Mr Klopp: Sorry, Mr Chair.

The Chair: What I'm going to do is I'm going to have Mr Klopp sit in the chair for just about five minutes. It's not a recess.

Mr Tilson: You're going to put Mr Klopp in the chair?

The Chair: Yes.

Mr Tilson: Wonderful. That'll shut him up, finally. Mr Chair, I don't want any heckling going on. I want you to listen to my remarks, so just sit there and listen to me.

Ms Christel Haeck (St Catharines-Brock): Now you can have a real conversation.

Mr Tilson: Continuing on, Mr Chair, if you'll follow along with me on page 345:

"It should be noted the changes in a system as complex as insurance cannot be made instantaneously. Once a change has been made to the statistical plan, it takes three years to see the results of that change. It takes this long to publish the plan changes, implement the changes in company data processing systems and compile and publish a full year of statistical experience."

This is the Supreme Court of Canada, Mr Chairman, telling the people of Ontario, the insurance industry and the government what the proper law is to avoid discrimination.

"The criteria of age, sex and marital status were retained in the statistical plan as, in the absence of a proven alternative statistical base, the effect of dropping those criteria could well have seriously disrupted the automobile insurance marketplace."

That's what Bill 164 is going to do. You know that, Mr Mancini knows that and I certainly know that. We're going to have a big, big crisis before you people are booted out of office. You'll have created this mess and you won't have any idea how to solve it, because it'll be a thousand times worse. We've had delegations come to us that say: "Let's give it time. We don't like OMPP, but we haven't even had a chance to work it. Let's give it a chance."

They've warned you. Not you, Mr Chairman, because you're now in the chair being quiet and listening to what I have to say. They have warned the government that you must wait, you must get statistics, you must see how these systems are working. You can't change these complicated systems instantaneously. You can't do that.

Then he quotes the superintendent, on page 345:

"`We should not take steps...that would produce a chaotic condition in the marketplace, where, particularly the present under-25 drivers, there is no real basis for judging or calculating what their rates are.

"`And the effect of not having an alternate system that was developed could well have produced a chaotic effect in the marketplace that may have affected all premium-paying members of the public who buy insurance.'"

That's what the superintendent of insurance says. Everybody's saying all these things except the government. The government is just plowing --

Interjection.

Mr Tilson: You be quiet, Mr Chairman. You're a Chair. You do your job. You're already itching. You have to wait until you get back over there before you can heckle me.

Mr Winninger: Don't tell the Chair how to do his job.

Ms Haeck: Why are you baiting him? If you want to have a little repartee, I'm quite sure Paul would be --

Mr Tilson: A repartee?

Ms Haeck: Yes, a little repartee. You know, a little discussion about this clause or that clause or what year it was in or what precedents have been set.

Mr Winninger: Anything to kill time.

Ms Haeck: I'm quite sure Brother Klopp would be happy to engage in some interesting conversations.

Mr Tilson: Do you mind if I get a drink of water while they're talking, Mr Chair?

The Acting Chair (Mr Paul Klopp): Mr Tilson, are you done now?

Mr Tilson: No.

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The Acting Chair: Do you have a question at all in your comments? When we go through clause-by-clause, usually people have questions from time to time. If you have no questions, we'll move on to the next party.

Mr Tilson: Thank you.

The Acting Chair: I know you have the floor, but are there some questions?

Mr Tilson: Thanks for your assistance, Mr Chairman.

The Acting Chair: The PA's just itching to answer questions.

Mr Tilson: Oh, I hope there'll be some questions. I have a lot of questions, and I'm sure Mr Mancini has a lot of questions. I can't believe other members of the government don't have some questions with respect to this decision. It's a very clear decision.

The Acting Chair: Okay, you're leading to some questions, I understand, right?

Mr Tilson: Yes, I will have some questions.

The Acting Chair: I just want to make sure.

Mr Tilson: But before we do that, I'd like to conclude the disposition of this case which was presented to us yesterday by the parliamentary assistant, and I thank him for that. On page 353 of the report, Mr Justice Sopinka gives his concluding remarks, where he dismisses the appeal with costs. Wouldn't it be wonderful if we could penalize the government?

"Zurich set its premiums on the basis of the only statistics available to the insurance industry at the time in question. These statistics supported the imposition of higher premiums on certain classes of drivers whose cumulative accident history suggested an increased insurance cost. Faced with an absence of any other criteria in which to set insurance rates, I am satisfied that Zurich set its rates on reasonable and bona fide grounds as those terms are used in section 21 of the code. Zurich was, in short, forced to use the industry-wide statistics contained in the superintendent's statistical plan to set its premiums. While it is not enough that insurance premiums be set in good faith and be supported by credible actuarial evidence, I find that Zurich has acted within the limits of section 21 of the Ontario Human Rights Code, 1981, in all the circumstances of this case. In view of this conclusion, it will not be necessary to consider the effect of subsection 46(3) of the code. I would therefore dismiss the appeal with costs."

So that is the real situation of the law of this land on the subject of rate classification.

I think that when we start talking about section 2 and we start talking about the risk classification system -- unless what the minister said is not correct, that he's not going to be eliminating the rate classification system, and I assume he's going to be, because all the delegations that came forward to us -- Mr Mancini has referred to some and I intend to refer to a few as well -- are very, very concerned about the direction and the way it's going and what it's going to do to the whole insurance industry. Our rates are going up. Almost all the insurance companies, with the exception of one or two -- I think State Farm is one -- have made application for rate increases.

Mr Owens: Don't forget Allstate.

Mr Tilson: Sure. On top of that, they are also saying, Mr Chairman --

Mr Mancini: Mr Tilson, who's the Chairperson?

Mr Tilson: I don't know. I gave up a long time ago. There are a couple of faceless characters up there who have claimed the chair.

The Acting Chair: Stick to your --

Mr Mancini: Why do you allow all these interjections?

The Acting Chair: Be quiet, now. It works both ways.

Mr Mancini: It's okay for the parliamentary assistant to shoot his mouth off any time he wants.

The Acting Chair: Carry on, Mr Tilson.

Mr Mancini: But if we object to the parliamentary assistant interrupting, then he tells us to be quiet. That's great.

The Acting Chair: I told him to be quiet too. Now he's settled.

Mr Mancini: Did you?

The Acting Chair: Yes.

Mr Mancini: Did you really tell him to be quiet?

Mr Tilson: The concern that is out there is that the government has told us, through the minister, specifically, Mr Charlton, that the government is going to be eliminating the rate classification system based on gender, age, marital status and who knows what else, because they haven't told us.

Section 2, of course, talks about adding a definition called the risk classification system. I asked the parliamentary assistant yesterday what in the world all that was. He didn't seem to know. He didn't seem to know what this new system is.

The Acting Chair: Are you going to be asking him that question?

Mr Tilson: No, I'm just making a few comments and then I will be asking the parliamentary assistant some more questions and seeing what other words of wisdom he has to tell us today.

But there is no question that through all these proceedings we have been led to believe on this committee, all the delegations have been led to believe, that the government is changing the risk classification system. Otherwise, I would have thought the parliamentary assistant would say: "No, you're wrong. We're not doing that. This is what we're going to do." He has no idea what we're going to do, but we're going to give him another chance.

I'd like to ask again some of the questions that I asked yesterday. Essentially, the first question was why we are doing this. Why are we -- not we. I can assure you that the Progressive Conservative Party certainly wouldn't do something as foolish as this. But why is the government going to eliminate the rate classification based on some of these categories? Why are they going to do that? I asked the question yesterday and the answer was because of a Supreme Court of Canada decision which he referred to called Zurich Insurance Co and Bates.

It would appear that that is not true, because this decision hadn't even been given at the time the bill was introduced. So again I'm going to ask you, why are you doing it?

Mr Owens: Thank you for the question. I'll repeat what I said yesterday and hopefully this time you'll be listening a little bit more carefully.

First of all, we are simply clarifying and codifying activities that are available under the current OMPP legislation. We are codifying practices that are already in effect within the industry.

In terms of the second question, with respect to your reliance solely on my alleged comments that we're doing this because of the Supreme Court decision, I simply did not rely on that as my initial comment. This is an issue of fairness, and I want to thank Mr Tilson -- and I will more directly when I get to my ability to respond -- for enunciating some very instructive sections, in my view. The issue of fairness is an acute issue in this province. Now, maybe the Progressive Conservative Party hasn't quite figured it out yet, but things have changed --

Mr Tilson: That's an understatement.

Mr Owens: -- from 1983 to 1992 in terms of how society views issues like marital status, sex and age. There's certainly a different perspective put on these issues than was placed on those components back in 1983.

I think if you read a little bit more closely the comments coming from Mr Sopinka, there is a clear indication that in the absence of an alternative --

Interjection.

Mr Owens: -- and maybe I can quote from page 353 as I did yesterday -- "It would therefore be inappropriate for this court to find a particular practice to be unreasonable when no reasonable alternative exists."

So when we get back to discussing the particulars of subsections 2(1), (2) and (3), Mr Tilson will be pleased to be aware that in fact this is again a technical section. It's a clarification and a codification of practices that already exist. And Mr Winninger corrects me: It is Mr Justice Sopinka, with the respect due to a person of his stature.

I answered this question yesterday on at least three occasions. My answer has not varied today, and I stand by that answer. Maybe we can try something new and perhaps related to the section under discussion.

Mr Mancini: Mr Chairman, on a point of order: When are we going to get yesterday's Hansards?

The Acting Chair: Just a second. When can we get them?

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Ms Pat Girouard: They hope to get to the actual transcription this afternoon.

The Acting Chair: We hope this afternoon.

Mr Mancini: We won't able to have those Hansards today, then, to read back to the parliamentary assistant his own words. Is that correct?

Ms Girouard: It's possible, if you'd like to pull something out of sequence, to --

The Acting Chair: Is there a particular page that you wish to have?

Mr Mancini: Yes, because I agree entirely with the point that Mr Tilson has been making this morning. What the parliamentary assistant told us yesterday in this regard is not what he's telling us today and we need those Hansards.

The Acting Chair: Okay. Thank you. They're going to see if we can get that pulled out by 2 or 2:30.

Mr Mancini: Good, if that's possible.

The Acting Chair: Okay. Thank you. Is there any other question?

Mr Tilson: Oh, no, Mr Chairman. I thank you for that question, but I'd like to pursue a couple of questions.

The Acting Chair: I just wondered if he was done, that's all. Are you done with that?

Mr Tilson: Is he finished?

Mr Kwinter: Mr Chairman, can I ask a question of the parliamentary assistant based on his comments?

The Acting Chair: It's Mr Tilson's thing.

Mr Tilson: As long as I still have the floor, I have no problem.

The Acting Chair: Call it a supplementary then. I understand. Thank you.

Mr Kwinter: The parliamentary assistant, in response to Mr Tilson, was saying that the political reality of 1983 has changed, now that we're in 1993, pertaining to things like age, gender and marital status and as a result, Bill 164 has got to respond to that, and I agree. I agree that it has changed but the economics of it have not changed. The economics have not changed because of political correctness. This government has certainly been brought very forcibly to that conclusion in its response to things like employment equity and pay equity where it's had to put it off because the economics are not there.

I want to refer to page 345 on the situation with Zurich Insurance and Bates.

Mr Winninger: Interrogative?

Mr Owens: Is there a question?

The Acting Chair: Yes.

Mr Kwinter: No. I just want to get his reaction to it because it reflects --

The Acting Chair: Is it a question?

Mr Kwinter: Yes, it is a question.

The Acting Chair: Okay. Very quickly.

Mr Kwinter: What it says --

Mr Tilson: Never mind very quickly. Let him ask the question.

The Acting Chair: Be quiet, please.

Mr Kwinter: The question is at the very --

Mr Tilson: Don't you tell me to be quiet.

Mr Mancini: What kind of nonsense is that, the Chair telling people to be quiet?

Mr Tilson: How dare you tell me to be quiet. You let him ask his question and don't talk to me --

The Acting Chair: That's why I'd like everybody to be quiet. Please go ahead.

Mr Kwinter: It's okay. At the very bottom of page 345, and I quote, "And the effect of not having an alternate system that was developed could well have produced a chaotic effect in the marketplace that may have affected all premium-paying members of the public who buy that insurance."

My question to the parliamentary assistant is this: In his zeal to be politically correct, would he admit that by being politically correct, he is going to impose a burden on every other person who buys auto insurance in this province, and has he addressed that particular problem?

Mr Owens: I'm particularly glad to answer that question because I think, Mr Kwinter, that you and your colleague Mr Mancini hit on exactly what the difficulties were during the Liberal regime. You took a look at discrimination, you recognized that there was a problem but then you thought, "This will cost us votes." So in the interest of political expediency, you backed away from that.

In terms of how we have taken up the challenge, we've looked, we have understood that there is discrimination that exists within the system, we have taken a look at the Supreme Court of Canada decision, no matter what Mr Tilson wants to argue, and again I think his section is --

Mr Tilson: It's the way you looked at it.

Mr Owens: Would you let me finish my comments, Mr Tilson?

Mr Tilson: The bill was a year before the decision --

The Acting Chair: Order.

Mr Owens: I think the sections that Mr Tilson has quoted are instructive and actually help bolster our decision.

As I mentioned yesterday, Mr Kwinter, perhaps you weren't in the room at the time, but if we were able to move through this bill, we would actually get to section 38, which prescribes a dislocation management plan. So yes we have taken a look at how we would manage if in fact a dislocation did take place, but we're also solving the difficulties that your government did not do because of political expediency.

I'm very pleased to be able to sit here and respond to questions like that. Again, when I'm given my opportunity to take the floor, I'll more fully explore the commitment, and lack thereof, of the former government to fairness and equity.

Mr Kwinter: Mr Chairman, if I could just have one very brief supplementary.

The Acting Chair: Very brief.

Mr Kwinter: To have the parliamentary assistant talk about political expediency is absurd to the extreme. This whole exercise of Bill 164 is political expediency on behalf of the government.

Mr Mancini: As Mel Swart said.

Mr Owens: In terms of Mr Kwinter's comments with respect to political expediency, I would like to suggest, sir, that you talk to those people who will be disfranchised under the long-term care, the most catastrophically injured in this province. If you want to talk about political expediency, as the former Minister of Financial Institutions, why did you determine that this was appropriate, cutting people off after $500,000, not allowing recognition of psychological injuries and emotional damage? Why is that not politically expedient? You abandon people.

The Acting Chair: You both had your points. Back to Mr Tilson. Do you have any more questions?

Mr Tilson: Yes, I have a couple of questions. Mr Owens, again returning to the definition section, having read portions of the Zurich case, can you now tell us what the NDP government's risk classification system is going to be? You have said that this is a technical section, and I agree. I would really prefer that you have a member of your staff come forward and provide specific details as to what this risk classification system is going to be. In other words, it appears to me, and I may be wrong, that in effect this system is still being developed. If it is still being developed, then I'd like to hear the progress to date and where we stand to date as to what the government's view of the new risk classification system's going to be.

Mr Owens: I'd like to thank the member for Dufferin-Peel for the question. Mr Simons is here, and in terms of the section under discussion, subsections 2(1), (2) and (3), we can again ask Mr Simons to review the technical nature of the sections and in fact, from a technical perspective, why the changes are needed.

Mr Craig Simons: I can't speak specifically to what work is being done.

Mr Tilson: Who can? Let's stop there. Who can do that, Mr Owens?

Mr Owens: In terms of the specific work, the details of the risk classification system at this point are not under discussion.

Mr Tilson: Whoa. What in the world are we doing here? We're talking about a risk classification system, under section 2, and you have the gall to tell us that it's not under discussion.

Mr Owens: That's right.

Mr Mancini: It's like the regs, we can't talk about it.

Mr Tilson: We can't talk about the risk classifications. We're going to vote on it, but we can't talk about it. Mr Owens, reconsider what you just said.

Mr Owens: We're asking you to vote on and hopefully support it so that we can get to an amendment, that's all.

Mr Tilson: But I want to know what the heck I'm voting on, and so do all the other members of this committee. What in the world is the risk classification system, and what have you done to date?

Mr Owens: I think I've answered your questions quite competently.

Mr Tilson: Mr Chairman, you've returned. Thank goodness you've returned, Mr Chairman.

Mr Owens: If I have not answered your question competently enough, in your view, Mr Simons is here and can.

Mr Mancini: He said he can't answer. He doesn't know.

The Chair: I would like some clarification here from Mr Owens. What is the amendment in section 2 that you're talking about?

Mr Mancini: We want facts. We want information.

The Chair: Is that correct? There is an amendment, you said, in section 2?

Interjections.

The Chair: No, but the amendment. You mentioned an amendment.

Mr Tilson: I'll repeat the question that I asked. I am trying to find out what the risk classification system is. It is my understanding that the government, through Mr Owens, has given the impression that it is working on this. What I'd like to know is what the progress is to date on this system and if they can fill us in on the technical aspects of the risk classification system and it's development thereof to date.

Mr Mancini: We want to speak to the experts.

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Mr Tilson: That's right. We need to -- the legal staff person -- I'm sorry, I can't remember your name.

Mr Simons: Simons.

Mr Tilson: I'm sorry, Mr Simons. Mr Simons has indicated that he isn't prepared to advise us of that, so I would hope that the government will have some staff people who could be present so that we could ask some questions on the risk classification --

Mr Owens: Mr Simons is prepared to answer your question if you'd give him an opportunity.

Mr Simons: I'll explain to you what a risk classification system is, and it isn't restricted to regulations that may be prescribed. What it does is, it includes all elements that insurers may use to classify risks in order to determine rates.

Mr Tilson: What are all those elements?

Mr Simons: For example, the territory you live in, the type of car you drive. There are about 150 insurance companies and each has its own risk classification system. They may be similar in some ways but different in others.

Mr Tilson: Mr Simons, would you file with us the risk classification system? I assume there's documentation to reiterate what you're saying. Could you file that with the committee now?

Mr Simons: What is it that you want me to file?

Mr Tilson: I want you to file the system that's been developed by the government, that the government intends to put forward.

Mr Simons: I'm not aware of any system that's been developed by the government.

Mr Tilson: So we're asking --

Mr Simons: This is merely a definition that can be used for rates -- classes of risks that are filed by companies for approval by the commission. This is the definition that includes what companies file. It also includes anything that could be prescribed by regulation.

Mr Tilson: All right. Mr Simons, what I need to know is -- and I don't know whether you have that information or not -- I need to know what the government's plan is on this risk classification system. I'm being asked to vote on something, but I don't know what it is, and it appears that no one else does either.

Mr Simons: I can't help you there, sorry.

The Chair: Mr Owens.

Mr Tilson: That's what I was afraid of, Mr Chair.

Mr Owens: The obtuseness of this member is absolutely staggering, Chair.

Mr Tilson: The obtuseness?

Mr Owens: The obtuseness in terms of --

Mr Tilson: What does that mean?

The Chair: The Chair doesn't understand that word either.

Mr Tilson: I don't know whether my privilege has been challenged or not.

Interjections.

The Chair: Okay, Mr Mancini.

Mr Mancini: Could Mr Owens give us an English translation for me and the NDP caucus members to follow? I know Mr Klopp understands these big words, but the rest of us are kind of confused.

Mr Owens: The member's lack --

Mr Winninger: It means otiose.

Mr Owens: In terms of the member's lack of willingness to accept perfectly reasonable explanations --

Mr Mancini: The Chair doesn't understand it. The Chair deserves an explanation.

Mr Owens: Chair, can we get back to this section, please?

The Chair: Could we just have the definition of the word?

Mr Owens: Difficult.

The Chair: Difficult, okay.

Mr Owens: Angle. A difficult angle.

Mr Hans Daigeler (Nepean): That's a polite interpretation.

Mr Owens: Well, that's right, but we're all polite here. We're all honourable gentlemen and women.

Mr Tilson: I think he could come very close if he's calling me difficult, Mr Chairman. I'm not difficult. No one on this side is difficult, and I think he should --

The Chair: Maybe difficult questions.

Mr Tilson: If that's what obtuseness means, then now that I know what it means, that I'm being difficult, I think he should withdraw that.

The Chair: Maybe difficult questions.

Mr Owens: In terms of the explanations that have been provided to the member for Dufferin-Peel on a number of occasions, and if the Chair has been listening carefully, I would suggest that we are becoming repetitious in what we are explaining and the questions are becoming repetitious. We are simply --

Mr Tilson: You're being asked the same question over and over because you're not giving any answers.

Mr Owens: May I complete my response to you, Mr Tilson?

Mr Mancini: It's all a big joke.

Mr Owens: Well, you're the people who are laughing over there.

Interjections.

The Chair: Order, order.

Mr Mancini: It was Mr Winninger and some of his other colleagues. We want answers --

The Chair: You're out of order, Mr Mancini.

Mr Mancini: Well, you tell the parliamentary assistant --

The Chair: No.

Mr Mancini: -- if he's going to accuse people of things --

The Chair: No, no, I'm sorry. You're out of order.

Mr Winninger: Point of order, Mr Chairman.

The Chair: Point of order, Mr Winninger.

Mr Winninger: I was smiling at Mr Mancini's behaviour, not at any substantive matter --

The Chair: You can put your hand down.

Mr Winninger: -- before the committee. Well, I'm never sure when you're going to cut me off, Mr Chair.

Mr Owens: The perpetual point-of-order machine here.

Mr Harnick: You're such an entertainer, David.

Mr Winninger: My point of order was that Mr Owens should file his thesaurus for the record.

The Chair: File --

Mr Winninger: His thesaurus.

Mr Mancini: It's all a big joke.

Mr Owens: Again, if you had been listening carefully to my responses and the responses of Mr Simons, we have indicated ad infinitum, for the purposes of Mr Winninger's comments, the purpose of subsections 2(1), (2) and (3). We are not doing anything substantially different other than to clarify and codify existing practices in the industry and what's currently in the Insurance Act. What part of that did you not understand?

Mr Tilson: We're being asked to vote on a new definition. We're adding the following definition, the "risk classification system." It's become quite apparent to the members of this committee that there isn't any, because you don't have a plan, you don't have a system.

All I'm asking you to do is to file the statistics and the facts you have to date, to tell us the progress you're making on this new risk classification system. There's no question the insurance industry has been given the impression as to what you're going to do. The minister in fact has said in quite clear English that he intends to eliminate the rate classification system based on age, sex and marital status. He said that.

Mr Owens: That's right. What a conflict.

Mr Tilson: When he's going to do that, if he's going to follow the Zurich case, he must have another plan. He must have another system, notwithstanding the fact that the Supreme Court of Canada says you should wait three years and develop statistics to see whether or not that's going to work.

Mr Owens: I think in terms of your interpretation of the Supreme Court decision, you fail once again to note the comments not only on page 345 but in some of the sections you've quoted. The operative phrase in this decision is that, for lack of an alternative system --

Mr Tilson: I'm going to read that section again to you. It's page 345.

Mr Owens: Let's look back to page 345.

Mr Tilson: "It should be noted that changes in a system as complex as insurance cannot be made instantaneously. Once a change has been made to the statistical plan, it takes three years to see the results of the change. It takes this long to publish the plan changes, implement the changes in company data processing systems and compile and publish a full year of statistical experience. The criteria of age, sex and marital status were retained in the statistical plan as, in the absence of a proven alternative statistical base, the effect of dropping those criteria could well have seriously disrupted the automobile insurance marketplace."

I read that from Justice Sopinka's comments, I read it from the headnote, and you seem to ignore all that. All I am trying to get out of you -- I'll ask the question for the third or fourth time -- is that you obviously don't have an alternative system and I want to know the status of the plan you're working on to develop an alternative system. If you don't have that, that's okay too. Tell us you don't have that.

Mr Owens: In terms of this going back and forth on the Supreme Court of Canada decision, I direct you one more time, respectfully, of course, to page 353 of the decision and ask you, again respectfully, to read the paragraph beginning, "The insurance industry must be allowed time...."

As you go through that paragraph, Justice Sopinka says, "While the situation as it existed in 1983 did not provide a reasonable alternative to setting premiums based on age, sex and marital status, the situation today and in the future may be quite different."

We are in the process as a result not only of issues like this decision, as I illustrated or tried to illustrate to you earlier -- perhaps you weren't listening as carefully as you might want to be -- but issues of fairness are involved in this process as well.

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In terms of the issues around rate dislocation, again, I have indicated to you on more than one occasion that we have a rate dislocation management plan later on in the bill. Perhaps we won't get to that today. That would be very unfortunate, because that would mean we would also not get to an amendment that you have put forward that we would like to work with you on.

In terms of some of the other issues, the regulatory power currently exists in terms of what can be included and what can be excluded. We are not changing that. We are, again, one more time, clarifying and codifying existing practices. We are going to make it clearer. We are going to allow the insurance industry to weight its particular classification items so that it can obtain what is, in its view, a business advantage. We are suggesting that on the issue of fairness, looking at page 353 and some of the other sections you have enunciated for our edification, we are providing the framework for an alternative.

Now, back to subsections 2(1), (2) and (3), this simply is a technical clarification and a technical codification. Mr Simons is quite willing and prepared to enlighten again you as to what this section means and how it is going to relate to Bill 164.

Mr Tilson: To Mr Simons, do you know of any document that exists that is codifying the existing practices?

Mr Simons: Do you mean a proposed classification system, whatever?

Mr Tilson: Yes.

Mr Simons: No, I don't.

The Chair: I think you've exhausted that question.

Mr Tilson: I have. It appears that they don't know what they're doing and so that's fine. I guess we're not taken by surprise on that.

I'm going to get to another question that I posed to the parliamentary assistant yesterday and ask whether his answer is still the same. It would appear that the risk classification system gives total discretion to the cabinet to develop a system that was traditionally developed by the insurance industry. Is that what the legislation's doing?

Mr Owens: Mr Tilson, as I indicated to you yesterday, as we proceed through this legislation there will be an amendment occurring later on.

Mr Tilson: Mr Chairman's gone. I can't hear you, Mr Owens.

Mr Owens: Perhaps you should listen a little bit more carefully.

Mr Tilson: I must have bad hearing. I can't hear you. There's too much babbling going on over there on the government side. They're talking over there.

Mr Owens: It's probably the air rushing through your ears.

Mr Mancini: Do you feel it necessary to be insulting at every opportunity, even when an honourable colleague says he can't hear you, justifiably so. Do you think it's worthy --

The Chair: Order.

Mr Owens: In terms of Mr Mancini's comment, Mr Tilson indicated that there was a lot of babbling going on and I'm simply clarifying the source of the noise for him.

The Chair: Mr Owens, I would say that the comment that was made to Mr Tilson should be withdrawn.

Mr Owens: Withdrawn. His comment about the babbling from the other side of the room should be withdrawn as well. I was simply clarifying the source of the noise.

The Chair: But our members are having a hard time too, so if you can crank up the volume a little bit.

Mr Owens: As I indicated yesterday, and will reindicate today, in terms of the cabinet powers there will be no new cabinet powers established and there will be an amendment introduced later on in this bill. Unfortunately, we are not going to get through these approximately 10 reasonably technical issues, including an amendment that you and your party have requested around section 7, but an amendment that will occur later will make it clear that cabinet will not be able to regulate the mathematical formula to be used by insurers to establish a rate. In terms of allowing the industry to make those kinds of business decisions, there's going to be a free hand in that respect.

Mr Tilson: We'll wait and see what amendment you bring forward because my understanding of the bill as it now reads is --

Mr Owens: We would like to see that as well, if we could get to those sections.

Mr Tilson: Yes, I hope that time will be allotted for this committee to discuss all of the sections. We had a motion that was defeated yesterday where more time should be given. I need more time to understand these -- to use your own words -- very technical sections, this very technical process of regulations that we don't know what they mean. The legal people don't know what they mean, the medical people don't know what they mean, the government people don't know what they mean, no one knows what they mean. We need a great deal more time to study these and other sections in the act and I hope the government members will reconsider the motion I made yesterday to allow this committee to take more time to study all of these issues.

I guess I'd like you now, Mr Owens, to tell me about -- we're dealing again with the risk classification system that's at issue in section 2 -- the phase-in plan.

Mr Owens: When we get to section 38, I would be pleased to do that. We are currently discussing subsections 2(1), (2) and (3).

Mr Tilson: Mr Chairman, hopefully you will be fairly generous in these discussions. The difficulty is that this is not the first time Mr Owens has made this comment, that we can't talk about something because it's coming later on in the bill. We're now talking about adding something called a risk classification system and we're going to vote on that very soon.

To vote on that we need to properly understand what that means and for the parliamentary to simply say, "We're going to discuss it later, it comes up in another section" -- and he's right. I'm prepared to admit that the phase-in plan is dealt with in section 38; I agree with the parliamentary assistant, that is dealt with in section 38, he's quite right.

The difficulty is, for us to properly understand the risk classification system in section 2, we need to ask and have answers to a number of questions that surround the whole topic of the risk classification system, otherwise I'm going to be voting on something now that I don't know what it means. I need to have a fuller explanation, so I would hope you would direct the parliamentary assistant to answer the question I just put.

The Chair: I've been listening to your questions. As I said, I think you're questioned out on that one item there. But I think the thing is here that this bill's being developed, that it has the working opportunity -- this is what I know by hearing the conversation -- that when they are developed, this bill will be able to deal with it. So we're not at that point. They have been developed but the bill is -- is this what you understand too?

Mr Tilson: No, that isn't want I understand at all. The question that I guess I'm getting at is that there are a number of areas that surround the topic of the risk classification system. We're being asked to talk about a definition for a system that hasn't even been developed yet, we don't even know what all of these things mean when we start running through subsection (3).

I know there's a section and the parliamentary assistant has quite correctly pointed out that in section 38 there's a phase-in plan, but for me to properly understand the risk classification system, I would like to know answers to other areas surrounding this topic. Just because it happens to be dealt with in section 38, what happens if you vote now and it contradicts something later on? Do we then go back and debate section 2 all over again? Somehow I don't think you'd allow us to do that.

The Chair: No, not once it's passed.

Mr Tilson: Maybe the parliamentary assistant says, "I don't want to answer that." That's okay.

The Chair: I take a look at something like regulations. You can refer to it, but they haven't been written yet, and there's only a draft copy. It looks like we're about the same thing in section 2, as the Chair sees it.

Mr Tilson: So we're not going to talk about regulations and we can't talk about the risk classification system; is that what you're telling us?

The Chair: To tie it in, but it's not there yet.

Mr Tilson: All right. I'll move on to another area.

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The Chair: Is that your understanding, Mr Tilson?

Mr Tilson: No, it's not my understanding. I have a lot of trouble understanding what in the world's going on with this bill. I mean, we're not allowed to talk about the regulations, we're not allowed to talk about the risk classification system, a system that hasn't even been developed. Anybody who's reading this stuff is going to wonder what in the world this government's doing. We're not even allowed to talk about this stuff. Mr Mancini loves to wave the regulations and I do too. We don't understand them, but we're not allowed to talk about them.

Mr Winninger: You've been talking for the last three days.

Mr Owens: Four now, David, four.

Mr Tilson: I'll move on to another area, Mr Chairman. I understand that I'm not getting anywhere on that area. We'd like to talk about the rates. This is a question to Mr Owens as the parliamentary assistant. We have the issue of rates. I had started to talk about that before when I was interrupted. With the exception of one or two or three companies that are not increasing their rates, they've applied for increases of rates. That's if Bill 164 isn't even passed. They've asked for increases of rates.

Bill 164 is supposed to improve the system. It's supposed to provide a cheaper system and a better system. But it's become quite clear, whether you're listening to Mercer or any of the actuarial reports that have filed with this committee, that rates are going to go up. One of the insurance companies has even said as high as 20%. When you add all this together, the rates could be as high as 30%.

Then we start talking about this risk classification system that's being talked about in section 2. Do the rates that are being suggested for the seniors of this province and the young women of this province mean that their rates are going to go up as well -- because that's what the insurance companies are telling us -- over and above the rates that are being suggested? Because of the change of the policy eliminating the rate classification system for gender and age and marital status, changing all that around, rates are going to go up, and they're going to go up over and above the other rates. Can you file with this committee the facts as to what those rates are going to be increased by for those groups of people?

Mr Owens: I'm not quite sure how the question deals with the section under discussion here, but I would like to respond to the issue with respect to the first part of the question around insurance companies applying for rate increases even prior to this legislation being introduced. Mr Tilson is, I would imagine, aware that the process is that applications are made and decisions are made on a case-by-case basis with respect to profitability and the need for that rate increase. If it's found that the increase is merited, it may or may not be granted. In terms of how your question relates to this clause, I'm not sure how a technical definition in terms of risk classification is related to rate increases. Perhaps you would like to clarify that question for me.

Mr Tilson: I'd be pleased to. Mr Chairman, through you to Mr Owens, we're talking about the introduction of a rate classification system as defined in section 2.

Mr Owens: Risk classification.

Mr Tilson: You're right; I've said that twice and I apologize.

Mr Owens: Always wanting to be helpful.

Mr Tilson: Thank you, Mr Owens. I appreciate that.

A risk classification system as set forth in section 2. We know rates are going up. The insurance companies have said that they're going to go up even higher for senior citizens and women particularly. They're going to go up substantially. In fact, there have been percentages thrown around of as high as 60% in the overall package. I assume the government has had some actuarial studies, because Mercer didn't talk about this. I assume the government has some facts that will talk about rates and the whole subject of rates. You've got the rates in the normal course of inflation and otherwise. I don't know what their grounds are, but there are obviously applications before the commission now to increase rates.

Mr Owens: And they'll be judged on their merits.

Mr Tilson: Yes. But then we have another set of rates that are going to be talked about, and that is the rates because of the regulations, because of the very expensive benefit packages. The insurance companies have all said that rates are going to go as high as 20% over and above everything else. They've also said that there's a third category, and that is the risk classification system. They say that's going to have a major effect on the rates. I think it was Mr Kwinter who said yesterday that common sense tells us that if you've got rates now which are going to be spread out among the women and the seniors, they've got to go up. They have to go up.

So my question to you again is, what facts do you have for this committee so that we can better understand what the increase of rates is going to be to seniors and young women of this province?

Mr Owens: Just in the event that you've forgotten what we're talking about under section 2, if you look at the current definition of "rate" it says, "in relation to automobile insurance, means all amounts payable under contracts of automobile insurance for an identified risk exposure whether expressed in dollar terms or in some other manner and includes commissions, surcharges, fees, discounts, rebates and dividends;" and then, in brackets, the French translation "taux."

When you look at the proposal under our Bill 164, subsection 2(2), the issue under discussion with respect to rates in this section, "The definition of `rate' in section 1 of the act is amended by striking out `exposure' in the fourth line." This is the issue that's under discussion particularly at this moment.

In terms of the actuarial reports that are out there, you're quite correct that Mercer has completed a study on behalf of the government, and as a matter of fact, and Mr Mancini or Mr Kwinter can correct me, Mercer also did a study for the former government as well in this respect.

The issue of whatever percentage increase, and I believe it was 4.5%, that was a cost prediction to the system. Mr Tilson, we've been sitting here for appropriately three weeks, and I hope that you're understanding a difference between a systemic cost and a cost in terms of a business decision. So in fact in terms of some of the figures that have been quoted by the opposition parties and by some of the insurance companies, there's --

Mr Tilson: All of the insurance companies; not some, all. Every last one of them has warned you. Don't misread the facts.

Mr Owens: Every last one of the insurance companies in this province?

Mr Tilson: Every last one of the insurance companies in this province has warned you, Mr Owens, that if you implement Bill 164, the rates are going to skyrocket. The rates are going to skyrocket to an extent that this province has never seen before. You've been warned.

Over and above that, because we're dealing with the risk classification system, I want to know what facts you have to show the rate increases as to particularly seniors and young women of this province. I want to know what facts you have. Do you disagree with the insurance companies that say that the overall increase to consumers, to seniors and young women particularly, when you add up all the increases, the normal increases that they're applying for -- and you're right; they may or may not get them -- the increases that are going to come because of the changes of these generous benefits that you boast about and that are going to cost the industry an unbelievable amount of money and now the risk classification system, because there's another set of figures on top of that -- they have alleged that the rates are going to increase as much as 60%. Either you agree with that or you don't agree with it. If you don't agree with it, would you file with this committee the facts to show that the insurance companies are wrong.

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Mr Owens: I appreciate that you used the word "alleged" in terms of their assertions that there will be rate increases of some of the astronomical proportions that have been predicted. I think, in terms of my prior comments around the process, that it will be up to each and every insurance company that feels it is in the position to require a rate increase, whether it's under OMPP -- and there are some that already have applied for those rate increases. Allstate Insurance Co, I believe, is a company that came before us and indicated to us that they're looking for an 8% increase. That's a decision that will be made by the Ontario Insurance Commission based on the facts that are presented during that process.

So in terms of whether I agree or disagree with the insurance companies, I think that's a moot point. There's going to have to be a demonstration of need by the insurance company, and if in fact there is not a demonstrated need, then no increase will be granted.

Mr Tilson: That really doesn't answer my question, because I'm looking for documentation.

Mr Owens: I didn't think it would.

Mr Tilson: Well, I'm asking if you have any documentation, any reports, and you don't appear to have any. That's all I'm asking. All I've heard --

Mr Owens: I'm not sure what kind of documentation we'd be looking for.

Mr Tilson: For example, there's no question that women, seniors, and young married couples are going to be hit hardest by this new, wonderful risk classification system.

Mr Owens: You don't know that.

Mr Tilson: There's no question about that. They will be the hardest hit. My question is, number one, have you analysed what the effect is going to be, what the percentage increase is going to be, and, more importantly, do you have some documentation or reports or statistics analysis to file with this committee so we can look at those things?

Mr Owens: I think you're making some gross assumptions in terms of looking at the issues with respect to potential rate dislocation. We certainly have a concern that that may in fact happen. As I have indicated throughout these hearings, the minister and his parliamentary assistant and the government are definitely concerned with costs in this issue, and this is why we have sat down and have worked extremely hard with the industry and with victim groups to put together a package that is going to be representative of the needs and provide a comprehensive benefit package based on a cost context that is reasonable for consumers.

Mr Tilson: Let me try it in another way, Mr Owens, because I'm getting nowhere with you on this direction. As you know, a study has been filed, a study that was prepared by Coopers and Lybrand. It's been reported in the press, and I'm sure the actual report is filed with this committee. That study estimated that average premiums of Ontario drivers would rise between 20% and 50% because the reforms that you're putting forward, dealing specifically with section 2, the whole subject of the risk classification system, would eliminate the insurance rate classification. Drivers with good records -- and the emphasis is given, of course, to women and mature drivers, seniors, and married couples -- would be eliminated, and that they would in fact be forced to subsidize the claims of more accident-prone motorists.

Again, we're going to refer to this case that you've brought up, this Supreme Court of Canada case. That's exactly what the Supreme Court of Canada talked about. You have to look at statistics. So you're getting into a system -- and I'm going to get back to that. The Supreme Court of Canada says if you're going to have a new system, you've got to have statistics. You've got to have actuarial studies. Where are they?

I'm assuming, because of the different answers that you've given -- and I'm just going to finally stop, because I'm going to finally conclude that you don't have any. You tell me, do you have them or don't you?

Mr Owens: Don't confuse me with facts, right? Is that what you're saying?

Mr Tilson: Yes, I would like to know the facts. I would like to have the facts that you have.

Mr Owens: What you're alleging is that first of all the Coopers and Lybrand report was an actuarial study. Is that what you're telling me?

Mr Tilson: I'm simply saying it's a study. I'm giving that as an example. If you say Coopers and Lybrand is wrong, then you tell me why they're wrong and produce the studies you have, the facts you have. Mercer certainly doesn't do that. The people of this province -- seniors, young women, married couples -- are very concerned their rates are going to go up, and they're going to go up because they are going to be subsidizing the costs of more accident-prone motorists. That's the general statement. Now, either they're right or they're wrong. If they're wrong, would you present facts to the committee that are going to tell us why they're wrong?

Mr Owens: I thought I sensed some agreement in the last comment that you made. With regard to the concern about rates going up with respect to subsidizing bad drivers, I would suggest that looking at objective issues like a driving record is certainly more germane to insurance rates than whether the person is married, whether the individual is a male or a female. Perhaps at 36 years of age I'm not of a generation that would understand the intent behind that type of classification system.

I said yesterday -- and I hope you look at the Hansard when it's available -- that if we sat down with a group of seniors and asked them, "Do you think it's fair or reasonable for good senior drivers to subsidize bad senior drivers?" I would hazard the reasonable answer would be, "No, it's not fair." The question is, if you took a mixed group of drivers -- men, women, seniors, younger people -- and posed the question to them, "Do you think it's reasonable that auto insurance rates be determined by anything other than what could be deemed an objective method, like driving records with respect to convictions, accident rates?" again, I would hazard a guess the reasonable response would be, "No, it's not reasonable to do that."

Mr Tilson: Mr Kwinter has a supplementary question which I am prepared to allow him to ask, but before he does that, I'm trying to figure out a way of asking the question clearly so the parliamentary assistant can understand. He's told us about his philosophy on this thing. I want to find facts of where they have analysed all of this stuff. I want to see the reports. Either they have them or they don't have them. Maybe there's a third answer. Maybe they have them but they don't want to give them to us. That's all I'm asking. I don't want to hear his philosophy; I hear that every day.

The Chair: Mr Tilson, the way we've been going in rotation, one person in each caucus has been going.

Interjection.

Mr Tilson: Before Mr Kwinter asks that supplementary question, I would just like to again clarify that either the parliamentary assistant has this information that I request or --

The Chair: Okay, Mr Kwinter.

Mr Tilson: No, no. Before he does that, will the parliamentary assistant tell us whether he has that information or whether he doesn't have the information?

The Chair: Okay.

Mr Tilson: He's thinking about it and he's talking to his people. Maybe I should write him a letter.

Mr Mancini: Do you think he has the information, George?

Mr Tilson: He's asking someone whether he's got the information. Can you believe it?

Mr Dadamo: Are you the moderator?

Mr Tilson: I'm sitting here trying to fill in time while he's trying find out whether he's got this information. A simple answer, yes or no.

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Mr Owens: I think if you review my previous answers in terms of rates and the reasoning for the classification system that we are endeavouring to set up, starting with section 2, if you look at the process that an insurance company has to go through in terms of requesting rate increases, that question has been answered. It's been answered with clarity, it's been answered honestly and I'm sorry that the member for Dufferin-Peel chooses not to accept that answer.

The Chair: Mr Kwinter, supplementary?

Mr Kwinter: Yes, Mr Chairman, the parliamentary assistant's response to Mr Tilson states that it's a matter of fairness, and with all due respect, I just want to state something and get his response. What he has just said is exactly the basis of Zurich v Bates. Bates charged that Zurich was not acting fairly in categorizing an individual driver based on the experience of a particular group and they went to the Supreme Court to get an adjudication on that particular principle, exactly the principle that you are putting forward now.

On page 339 of Justice Sopinka's reply, he says: "Although not all persons in the class have the same risk characteristics, no one would suggest that each insured be assessed individually. That would be wholly impractical."

Now that is exactly the proposition that the parliamentary assistant is putting forward, that it should be done on an individual basis. Could he tell me what his response is to Justice Sopinka?

Mr Owens: I'd like to thank the member for his question. Again, what you are looking at is a snapshot that was taken in 1983 and a decision rendered, and again I point to page 353. As Justice Sopinka has quite clearly stated, "While the situation, as it existed in 1983, did not provide a reasonable alternative to setting premiums based on age, sex and marital status, the situation today and in the future may be quite different."

In terms of the criteria, we are not talking again about looking at the member for Dufferin-Peel individually as a driver, we're looking at an objective set of criteria that talks about the driver experience. We're looking at issues of where you live, the mileage of the driver, the claims history that the insured would have, or proposed insured, and I think that these are reasonable issues to look at.

Again, with respect to Mr Kwinter, my understanding of Mr Kwinter is that he is a very reasonable person and I ask you to look further on in the decision and to reread some of the pages that Mr Tilson quoted for us. The operative theme throughout this entire decision is that in the absence of an alternative system -- and I don't want to paraphrase Justice Sopinka -- they have no choice but to rule, based on the snapshot that was taken in 1983.

We are now in 1993, fully 10 years later, and we're in the process of developing a system. In terms of what we're attempting to do under subsections 2(1), (2) and (3), while you certainly weren't the minister responsible at the time -- it was your colleague, Mr Elston -- it's my understanding that we are doing nothing more than clarifying what is currently under OMPP. We are not making dramatic changes. You folks, as the former government, already gave the power to insurance companies through regulation to look at issues of exclusions and what factors could be used, so I'm not quite sure why this is such an issue of contentious debate.

We are now on day four and have made stunning progress to section 2 of what we viewed as some merely technical amendments under sections 1 to 10. We seem to be spending a lot more time than is reasonably required. I see that we now have a new entry into the fray.

Mr Kwinter: Mr Chair, may I have a brief supplementary?

The Chair: Yes, Mr Kwinter.

Mr Kwinter: The parliamentary assistant has said that there's no intention on the part of the government to bring in a regime that would do individual classifications and admits that is in fact impractical. What he is suggesting is that what they would do is take a look at where the person lived, how much mileage he drove, what kind of a car he drove, and that would be the basis of this new classification system.

In his zeal to be politically correct and to shift the emphasis from age, sex and marital status, he's going to set up a whole other set of arbitrary criteria, where someone will say: "Why should I be penalized just because I live in Toronto? Why should I be penalized because I drive 10,000 safe miles when someone else drives 10,000 unsafe miles? Why should I be penalized because I drive a particular car and I drive it safely?"

So what you're really doing is transferring the onus from one category of criteria to another, and you're not solving any problems except you are giving lipservice to politically correct solutions. Do you have any comment on that?

Mr Owens: It's too bad that you equate equity and fairness with sneering phrases like "political correctness." Again, I suggest that this is one of the reasons why you're sitting on the left side of the room at this point in history. We're not talking about an arbitrary system; we're talking about an objective process to assess the risk of the potential insured, nothing more, nothing less. Your insinuations that we are simply doing this to be "politically correct," I think are quite objectionable and certainly beneath the stature of a member such as yourself.

The Chair: Mr Tilson, we have one minute left.

Mr Tilson: We've certainly seen quite a performance this morning from Mr Owens. Have you analysed which consumers, if any, will be hit with increases as a result of the risk classification system?

Mr Owens: I'll defer to ministry staff.

Mr Simons: I think you have to develop the risk classification system first before you can really assess what the impact would be.

The Chair: Okay, it's 12 o'clock. We're going to recess until 2 o'clock.

The committee recessed at 1200.

AFTERNOON SITTING

The committee resumed at 1413.

The Chair: Good afternoon. We are on Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters. We're on day four. Good afternoon. It's 2:13 and we're on section 2 of the bill. Mr Mancini and, I believe, Mr Tilson had asked for a portion of the Instant Hansard for February 17, which every member has in front of him. I believe Mr Tilson is going to be making comments on it. Mr Tilson has the floor. You may begin.

Mr Tilson: I did ask for Hansard because I was concerned about the comments made by the parliamentary assistant. It's quite clear that what he said yesterday isn't really what he's saying today, particularly after we spent some time this morning reading the Zurich and Bates decision.

I'd like, for example, to turn to -- the numbering system is confusing to me. It's the fourth --

The Chair: It's 1630-1.

Mr Tilson: Yes, 1630-1. It's the fourth page in. What do you call this? Is this the draft Hansard, or is this formally Hansard? What is this? Can we talk about it?

Interjection.

Mr Tilson: No, I'm going to read what the facts say. That's more than what you've been doing in these proceedings. I'm telling you the facts as to what's going on with this bill, and the fact is that there aren't any facts. I'd like to refer to the exchange that Mr Owens and I had on page 1630-1.

Mr Mancini: On a point of order, Mr Chairman: I am thoroughly disgusted by what I see here in the minutes and I'm terribly upset at the parliamentary assistant. You, Mr Chairman, on your advice, told each and every committee member not to make note of the absence of any members, because we don't know if they're going to the washroom, we don't know if there's a constituent outside the doorway waiting for them, we don't know why they're in or out of this room. You will agree with me, Mr Chairman, that my attendance in these committee hearings has been meticulous, to say the least, and I very, very rarely left the room other than to receive a phone call or to go to the washroom.

To have the parliamentary assistant put on the record at the bottom of page 4, referring to me, that it's unfortunate that I'm not here at this point is about as low as he's gone through these entire proceedings. We're either going to play it by the rules aboveboard -- I don't mind the cut and thrust of politics and I don't mind him trying to destroy an argument that I'm trying to make or whatever he wants to do in a political fashion. I'm big enough to accept that.

But based on your advice, I have not on any occasion made note of anyone's absence, because I know the responsibilities members have. There isn't a member in this room who would dare say I haven't been meticulous in my attendance at these hearings. For the parliamentary assistant to do that is as low as you can go, and I'm not going to take it.

The Chair: Can we ask that we retract that statement, Mr Owens?

Mr Owens: I'm not quite sure what the purpose is, in that I was simply wishing that Mr Mancini had been here. It was not that I was implying that he was off doing things that were not related to the committee work.

Mr Mancini: Read the record.

Mr Owens: It was not meant to be disparaging in any way, shape or form, and in terms of any kind of harm that may have been done to Mr Mancini's character, I would suggest that none has been done. However, if Mr Mancini is so offended by this comment, I would take the opportunity to indicate that I'll withdraw the comment and will certainly endeavour not to do that again.

The Chair: I would say that I appreciate, Mr Owens, your withdrawal and that this isn't something we do in the House or at committee either. I've heard a few comments. I know, when the Chair got up the one time, that I didn't appreciate, "The Chair is leaving." It wasn't done right. I didn't come back on it, but I've talked to our members also. There could be in the House, as it is, a call that comes from one of your constituents or an emergency situation at home. Mr Mancini or any member doesn't have to explain why he's making a telephone call or put his hand up to leave the room. I hope you're agreeable with the results there, Mr Mancini.

Mr Winninger.

Mr Winninger: Just on a point of order: It really is unfortunate that Mr Harnick isn't here today to hear this because last time --

Interjections.

Mr Winninger: Can I complete my point? I want to complete my point of order. When we were at our sittings in Ottawa and I stepped out for two minutes --

The Chair: No, no. Mr Winninger, we just discussed --

Interjections.

Mr Winninger: I'm completing my point of order.

Mr Tilson: You just think it's a big joke.

Interjections.

The Chair: I'm sorry. You're out of order on that one.

Mr Winninger: I have a point of order.

Mr Tilson: You don't have a point. You're insulting --

Mr Winninger: Allow me to complete the point of order.

The Chair: Okay, Mr Winninger. Complete it, but --

Mr Winninger: In Ottawa, when I stepped out of the room to make a five-minute phone call, Mr Harnick said, "Where are the government members?" He said, "They should be doing what the taxpayers are paying them to do."

Mr Harnick said that, notwithstanding that the day before in Windsor he left the hearings an hour early to go back to Toronto. At that time, Mr Chair, you never asked Mr Harnick to withdraw what he said --

Mr Tilson: I find it simply amazing that you allow this to go on.

Mr Winninger: -- so I suggest it's totally out of line that Mr Owens be asked to withdraw his comments.

The Chair: Mr Winninger, an eye for an eye and a tooth for a tooth isn't getting you anywhere here. Mr Tilson, you have the floor.

Mr Tilson: I'd like to refer to page 4 of this document, or the portion of the transcript that was provided to us of the proceedings of yesterday afternoon. The page number is 1630-1. There's an exchange at the bottom of the page between Mr Owens and myself.

I made the statement: "But we've been told that that is the intention of the philosophy of this legislation, of which this particular section is a definition of, that you will be eliminating the rate classification based on age and gender." It is this next statement that gives me the greatest of difficulty, and you ruled me out of order this morning for using the word "misleading."

Mr Klopp: What page again?

Mr Tilson: Page 1630-1. Mr Owens' response was, "We are looking at complying to a Supreme Court of Canada decision, Zurich v Bates," and then he goes on to insulting Mr Mancini.

That is a bold statement that the intent of section 2, section 38 and all of the other sections dealing with this new system is a compliance with the Supreme Court of Canada decision of Zurich v Bates which we spent some time on this morning. That's his rationale. The bill came out a year earlier; this decision was not made until the fall of 1990. The case didn't say what he is suggesting, complying with the Supreme Court of Canada decision.

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I'm going to read page 345 again, because it gives me great concern when the parliamentary assistant comes to this committee and makes statements such as he has. I'm going to refer you to page 345 of the decision again of Zurich Insurance Co v Bates.

"It should be noted that changes in a system as complex as insurance cannot be made instantaneously."

Really, that sentence is enough right there so that the whole principle that was put forward in this case -- the case was dismissed, there was no discrimination. We've got a lot to talk about this afternoon and I'm not going to spend time rereading those sections. I hope that members of this committee will take note.

Mr Klopp: So what's your question?

Mr Tilson: I'm not asking a question at all. I'm very concerned.

Mr Owens: A point of personal privilege here.

The Chair: Mr Owens.

Mr Owens: Mr Tilson is clearly insinuating and almost said in his somewhat provocative language that I have lied. In terms of stating his case he has relied on a paragraph on 1630-1, that while it may not be a grammatically correct statement, it certainly does not indicate that I in any way, shape or form have said that this government is relying solely on the case that has been cited, the Supreme Court decision, Zurich Insurance Co v Bates. I think that his rather selective review of Hansard is rather unfortunate and that he uses that selective review to impugn my character. Sir, I deeply resent that and I am asking Mr Tilson to withdraw that allegation that I have in fact lied to the committee, and that we move on with the bill that we're here to discuss.

The Chair: Mr Mancini.

Mr Mancini: I don't think we're accusing Mr Owens of lying, I think we're accusing him of not understanding what's going on. I think that's what the accusation is. I don't think Mr Tilson, from listening to him very carefully, made the accusation that Mr Owens lied. I think the accusation that Mr Tilson has made, and fortified his argument with this documentation and other pieces of information, is that the parliamentary assistant doesn't understand the bill. It's becoming more evident every day.

Mr Owens: With respect, the comments were made this morning that I had misled the --

Clerk pro tem (Mr Franco Carrozza): That was withdrawn.

Mr Owens: Pardon me, sir.

The Chair: That was withdrawn.

Mr Owens: With respect to the Chair and to the clerk, to deal with this case and this situation in isolation is not appropriate. Mr Tilson has called for the Hansard to demonstrate that I have in fact somehow misled the committee -- in layman's language that I've lied. This Hansard in no way, shape or form demonstrates anything other than the point I was trying to make, and I am requesting, Chair, that he withdraw that allegation and clearly state that this Hansard does not demonstrate in any way, shape or form that I, as the parliamentary assistant, have misled the committee.

The Chair: I'm going to say that the clerk was talking to me about an issue there. I missed some of it, but I didn't hear the word "lying" at all.

Mr Tilson: I'd like to read some more things that Mr Owens said. It gets better.

The Chair: If it is in Hansard, which I didn't hear just now, if it said he was lying --

Clerk pro tem: He didn't say it.

The Chair: He didn't say it. Okay, the clerk said he didn't hear any "lying" there so I can't ask him to retract if he's not stating that you're lying. It depends on how you read between the lines.

Mr Tilson: I'm not reading between the lines, Mr Chairman, I'm reading Hansard. I'm reading the words of Mr Owens, and I'd like to read some more words from Mr Owens.

The Chair: Okay, well, carry on, and I'm going to be listening a lot more intently.

Mr Tilson: I hope you do, Mr Chairman, because what Mr Owens has said is quite serious. I'm going to turn to page 1640-2. I made a statement with respect to why Mr Owens had waited until now to bring this case forward. Then Mr Owens stated -- and it's always interesting when he starts taking personal shots at members of the opposition -- and this is what he said:

"I think in terms of your duties in your critic area that you haven't taken the opportunity to fully inform yourself of decisions such as the Bates v Zurich Insurance Co" -- of course it turns out exactly how much Mr Owens has read the case himself -- "because it is an important case, and your colleague Mr Harnick, I'm sure, has some thoughts on the case and I'm surprised that he hasn't shared those details with you." Well, of course, we shared all those details with Mr Owens this morning and I hope he took note of them, made notes and underlined all the areas that I read.

This is the next part: "This is not a surprise." An interesting statement to make about two members of the House. I'm not going to get into personal privilege, but my goodness, if there was ever an area where I could rise and ask for withdrawals, this is it. These were just terrible actions by Mr Owens, but I must say it has been typical throughout all these proceedings. "These are issues we have raised with respect to fairness in the system and we simply are relying on a decision that we view as being directive from the Supreme Court of Canada."

Mr Mancini: Directive?

Mr Tilson: "Directive," I apologize.

Mr Owens: I said that?

Mr Tilson: You certainly did say that. You said it, and the case hadn't even come out yet. You printed a bill and you hadn't even seen this case, because the case hadn't been reported on. Chief Justice Sopinka hadn't even made his decision, so how in the world could you rely on a decision that hadn't even been made?

Mr Owens: In terms of my definition of "directive," we're simply looking at a suggestion, a direction, that has been written by Justice Sopinka, and I once again draw the members' attention to the decision by Justice Sopinka, page 353, that in terms of the decision that was made, he states -- and I've repeated myself a number of times and I'm not quite sure how this discussion is related to the section under discussion --

Mr Tilson: You raised the case, Mr Owens.

Mr Owens: "While the situation as it existed in 1983 did not provide a reasonable alternative to setting premiums based on age, sex and marital status, the situation today and in the future may be quite different." In terms of the way we are proceeding and in terms of the comments that I made on page 1625-3, if I may quote Hansard -- I don't mind quoting myself from time to time:

"Paragraph 35: `Prescribing the class of risk exposure to be used by insurers in determining the rates for each coverage and category of automobile insurance.' Section 36 talks about `prescribing classes or risk exposure which insurers are prohibited from using in determining the rates for each coverage and category of automobile insurance.' What we're doing with this section, as I say, is adding clarity. If, at some point, when I'm able to make some comments, we'll be discussing how the Supreme Court of Canada has nodded in the direction that insurance companies should be removing these discriminatory items such as marital status and age and sex from their classification systems."

So in terms of your reliance on this as being your prima facie case that I have misled the committee, I would suggest once again, Chair, that the member is wrong and I would suggest that we cease this item of discussion --

Mr Tilson: I'm sure you'd like to stop this discussion.

Mr Owens: -- and move back to the bill that we are supposed to be looking at, and that's subsections 2(1), (2) and (3).

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The Chair: Mr Tilson, I'd take a look at it; I don't think Mr Owens is misleading this committee, reading these two. It's not worded exactly the same, but --

Mr Tilson: You ruled me out of order. I haven't used that word. I went through that this morning. What are you talking about?

The Chair: No, okay.

Mr Owens: On a point of order, Chair.

The Chair: Mr Owens.

Mr Tilson: What are you talking about? I'm talking about --

Mr Owens: We are looking at section 2, subsections (1), (2) and (3), and in terms of this discussion, I'm not quite sure how this is germane to the section.

Mr Mancini: I know it's embarrassing.

Mr Owens: No, it's not embarrassing. It may be embarrassing for you, Mr Mancini, but it's certainly not embarrassing. I would be embarrassed about OMPP. That's what your aggravation's all about, OMPP. It has nothing to do with this. I would be embarrassed about OMPP if I were you, as well, and you should be embarrassed about it.

Mr Mancini: Right there, "directive from the Supreme Court."

Mr Owens: Well, sir, that's certainly your interpretation.

Mr Mancini: Before it was even done.

Mr Owens: As a member, you're certainly entitled to that.

The Chair: Mr Mancini, the thing is that it says "directive"; it doesn't have a date on it. I'm trying to read what's here, and to argue, like, this word and that word --

Mr Owens: We can sit here and split hairs for the rest of the afternoon. That's fine. We can certainly do that.

The Chair: Let's get on with it.

Mr Owens: We can banter back and forth about what "directive" means and what was the intent.

Mr Mancini: It's a word like "obtuse," you know.

Mr Kwinter: Mr Chairman, on a supplementary question: The parliamentary assistant is being very selective. He's using the Zurich-Bates case to bolster his argument, when in fact Justice Sopinka ruled against the appellant. What he said is that Zurich Insurance acted properly, given the circumstances.

Now the parliamentary assistant just quoted from page 353, and it says that "While the situation as it existed in 1983 did not provide a reasonable alternative to setting premiums based on age, sex and marital status, the situation today and in the future" -- and this is key -- "may be quite different." He's not saying it is quite different; he is saying it may be quite different. And if it is different, then I think it's imperative that the government bring forward to this committee its research that shows that the situation is different and that there in fact is a proper, statistical method for evaluating the risks of drivers under 25 who are single and male.

To use that clause to bolster the argument of the parliamentary assistant makes no sense. He says we're talking words. When you're talking law and when you're talking legislation, that is exactly what we're talking, words, and lawyers make their living by interpreting words. They will go and defend a case and appeal a case on the basis of one word.

Here's a section where it says "may." It doesn't say "is," it doesn't say "will"; it just says "may," and that I agree with. "May" covers a lot of things that could happen.

But certainly the onus is on the government. If they are saying, on the basis of what Justice Sopinka said: "We now have statistical data; we now have a rating plan that can effectively address the situation," that is not the case. We have seen no evidence whatsoever. Nothing has been presented to us on behalf of the government or the ministry to say: "We have read the case of Bates v Zurich. We have come up with a statistical plan that is fair and equitable, and it is going to form part of this bill." We haven't heard that.

What is happening, and the ruling is clear, is that, given the absence of that particular information, then the present system is bona fide and fair under the circumstances. Nobody is denying the fact that in an ideal world there wouldn't be this discrimination, but given the present state of the art as far as calculating risk is concerned, there isn't a viable alternative, and until the government comes up with one, what it's really doing is making a change on the "if come" "Somewhere along the line we may come up with something that is going to work."

But I think that we as members of this committee certainly are within our rights to ask the government: "Tell me, sir. You are changing the risk category classifications. What are you replacing them with? How do we know it's going to work, when the judge himself said, `There may be at some time in the future a way of doing it, but at the present time there isn't, and as a result, I'm denying the appeal'?"

The Chair: Mr Owens, a reply?

Mr Owens: No comment at this time. Let's move on.

Mr Tilson: Let's have a recess, and we can go and do some research.

The Chair: Mr Tilson, you have the floor.

Mr Tilson: How difficult for this committee to operate, when the parliamentary assistant says he has no comment. It really is a difficult --

Interjection.

Mr Tilson: Well, now he has a lot to say, of course. When we ask him to speak he doesn't say anything, and then of course when I speak or Mr Mancini or Mr Kwinter speaks, he's got a lot to say. Whether his microphone's on, it doesn't matter. Anyway, he doesn't have anything to say.

The Chair: Do you have a supplementary there, Mr Winninger?

Mr Winninger: If Mr Tilson will permit.

Mr Tilson: Of course. I still have the floor, but I'm sure Mr Winninger wishes to add to --

Mr Winninger: Yes, just very briefly. I guess in essence I don't disagree with what Mr Kwinter has said, but I think, to be fair, quite frequently judges at all levels of the courts make statements in a deferential way to the legislatures and the Parliament of the land. It may not be the "ratio," as we call it, the main reason for the decision, but there's a term, "obiter dicta," and while obiter dicta is not the reason for resolving a case, it does have some judicial weight. Here, quoted from the Zurich and Bates case, it says,

"The insurance industry must be allowed time to determine whether it can restructure its classification system in a manner that will eliminate discrimination based on enumerated group characteristics and still reflect the disparate risks of different classes of drivers."

I put it to the members of the opposition that it seems perfectly reasonable that the government should promulgate a draft regulation to consult with the insurance industry and determine whether or not it can come up with the kind of alternative risk classification system that it seems to me all judges on the bench in the Zurich and Bates case are calling for. I think it's quite reasonable for judges, sitting as they do hearing specific cases, from time to time to call upon the government of the day to make some legislative changes.

I think it's equally incumbent on the government to respond sometimes to the kind of clarion calls that emerge from the courts. I know, certainly, that the lawyers on the other side of the room are aware that that frequently is the case, so I don't know that it's proper to say to the government, "Well, you must come up with the alternative risk classification."

Here, the judge himself has called upon the insurance industry to rise to the challenge, and even though in 1983 they may not have had alternative empirical evidence available to them to devise an alternative, he's certainly suggesting that now in the 1990s -- and the decision was rendered, what, after June 1992? -- maybe this is the opportune time to look at it.

I don't think there's anything in section 2 of Bill 164 which is in any way conflictual with what the judge is saying. That's why, I guess, I have some problems with this attack on Mr Owens, suggesting that he's deceiving the members of the committee and deceiving the public, because I think what he's saying is on all fours with what Justice Sopinka has called for here and, in even stronger terms, with the views of the dissenting judges in Zurich and Bates. So that's my point.

The Chair: Okay. Supplementary, Mr Mancini.

Mr Mancini: I just want to raise a brief point and respond to Mr Winninger, because what he's said is in fact a fairly clear response to some of the things that we've been trying to discuss carefully this morning and part of this afternoon.

What annoys us to no great end is that yesterday, when we made our arguments against changes in the rate classification system and when we gave arguments bolstering why we were against the changes -- members of the committee may have heard those arguments -- the parliamentary assistant took it upon himself to refer to this particular case that the Supreme Court had heard. I don't remember raising it myself; as a matter of fact, I know I didn't. I don't recall any of my colleagues on the opposition benches raising it. It was the parliamentary assistant's strategy to nullify our arguments by using the Supreme Court decision. It was further pointed out that the Supreme Court decision was given a year after the introduction of the bill, which in itself makes one wonder why the parliamentary assistant would use the Supreme Court decision as an argument to bolster his decision, when that time frame, in fact, puts his whole argument on shaky ground.

The other thing is -- this is what we had been looking for since this morning -- if I were to say to you after I heard you make an argument -- and I want to quote the parliamentary assistant's words. If I were to say to Mr Winninger, "Well, that's all very well and good, but these issues that we have raised with respect to fairness of the system could be any system, and we are simply relying on a decision that we view as being a directive from the Supreme Court of Canada" -- if I were to receive a directive from the whip's office, from the House leader's office, from the Clerk, from the Chair, from anyone, I would assume that that's a pretty firm indication -- maybe we can't use the word "order" but I would say it's pretty close -- of what the Chair or someone else wants us to do. When we invoke the Supreme Court of Canada, I think that strengthens the firmness of the order. So we had the parliamentary assistant, who is trying to nullify our arguments, saying that "We, the government, have a directive from the Supreme Court of Canada."

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Then he goes on and says something just as important to further indicate how important the Supreme Court of Canada's directive is. He says, "If you want to suggest that we ignore the Supreme Court of Canada, then go ahead and make an amendment so that we can continue down this road of discrimination," or something like that.

Now with all due respect, for us to have sat here yesterday and to have heard these words come out of the parliamentary assistant's mouth -- I had not read that case. I'll be the first to admit I had not read the Zurich versus -- is it Bates?

Mr Tilson: Bates.

Mr Mancini: I had not read the Zurich v Bates case.

Mr Tilson: Neither had Mr Owens.

Mr Mancini: So when I hear the parliamentary assistant saying these things -- he's got appropriate staff with him -- I'm assuming he may have read the whole thing. I'm at a disadvantage; I didn't read it. That's fine, but he certainly led me to believe -- and these words are not my words, and the words that he chose I'm sure he chose carefully and those words would lead anyone to believe, I say with all respect to Mr Winninger, that the parliamentary assistant was saying that the government was directed by the Supreme Court of Canada, period, and that the government wasn't prepared to challenge the Supreme Court, and if we were, then we were going to have to prepare our own amendments, which is fine. But now that we have his words and the Zurich v Bates case, we know for a fact that the Supreme Court of Canada did not direct the government to do anything.

The Chair: Mr Tilson.

Mr Tilson: The obiter dicta that Mr Winninger referred to, of course, was made almost a year after the bill came out. When the bill was prepared this case wasn't around; it was still --

Mr Winninger: The regs --

Mr Mancini: No, we can't talk about the regs.

Mr Tilson: Don't talk about the regs.

Mr Winninger: Sorry. I have a short memory.

Mr Tilson: But let's talk about the obiter dicta, because I don't think you get it, Mr Chair, through you to Mr Winninger. I don't think you get it.

I'm going to read the section that Mr Owens loves to quote to us, and it's just given before the disposition of this case on page 353: "The insurance industry" -- this is the Chief Justice -- "must be allowed time to determine whether it can restructure its classification system in a manner that will eliminate discrimination based on enumerated group characteristics and still reflect the disparate risks of different classes of drivers."

That's what he's read to us. But, you know, the court is saying the court wants the insurance industry to do this. They are the ones who have all the statistics. You people, quite clearly, don't have any statistics. You don't even have a plan. That was made clear in the last answer that was given by the legal assistant this morning. They don't have a plan.

The Chair: Mr Owens.

Mr Tilson: No, I haven't finished.

The Chair: Okay. I thought you wanted a response from it.

Mr Tilson: I guess if we're going to talk about this so-called obiter dicta, which didn't exist at that time, what the court is saying is, "Let the insurance industry solve this." My goodness, didn't you people listen to what I read this morning?

Mr Klopp: You need to allow regulations to do that.

Mr Tilson: I read it over. In fact, a couple of these passages I read over and over. That isn't what the case is saying, what Mr Owens is submitting. He's saying the insurance industry should do this, not the government. They haven't even got the capabilities of doing it. They haven't the slightest idea as to how to do this, nor have they tried.

The Chair: Mr Owens.

Mr Owens: Thank you, Chair. This discussion is clearly heading down the long road to nowhere in a very quick manner. Mr Tilson is once again suggesting that in my comments I have indicated that it was only the Supreme Court of Canada decision that led the government to make its call with respect to risk classification.

First of all, I want to direct Mr Tilson's attention to subsections 2(1), (2) and (3). If Mr Tilson clearly reads these subsections it will become apparent to him that in fact, as I explained on many occasions this morning, these are clearly technical subsections to set up and to clarify and codify existing practices within the industry now. No one has alleged to you or inferred in any way, shape or form that the Supreme Court decision was the sole basis for a decision. I'm sure you are well aware that prior to a case being brought to the Supreme Court there are many levels that the case would have to appear before --

Mr Tilson: The appeal court said the same thing.

Mr Owens: -- and I would suggest that the government would have taken an interest in that process.

I stand behind what I say. I am quite clear that there is no variance between today and yesterday. I think we are looking at a rather large red herring here in terms of the progress on this bill, and I am prepared, as I'm sure Mr Tilson is prepared -- we can sit and we can go at this for the rest of the afternoon, but I'm just suggesting that we are looking at merely a technical amendment to clarify and codify existing practices.

We can go through some kind of inquisition. I think that you're way off base in terms of your allegations and your assumptions and this certainly serves no particular purpose. It certainly does not move the bill forward in any meaningful way. But, Mr Tilson, you are entitled under the standing orders to use your time as you see fit, and I certainly have a great respect for yourself as a member and for the standing orders, and if you would like to proceed in this mode of discussion rather than getting back to some technical amendments and moving towards, again, an amendment which, by the way, as I indicated, I appreciated, and Mr Mancini indicated that maybe he should be thinking about putting some amendments forward on --

Mr Mancini: I didn't say that.

Mr Owens: Well, yes, you did. Absolutely.

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Mr Tilson: You're calling him a liar.

The Chair: This isn't a private discussion here. It's Mr Tilson's floor and not a discussion with Mr Mancini.

Mr Mancini: I didn't even ask to be invited into his dissertation.

Mr Owens: No. I'm suggesting that Mr Tilson has put forward some amendments on behalf of his Progressive Conservative caucus, beginning again with section 7, which we find some interest in and would like to work with him on and which we would like to move through. However, if Mr Tilson chooses to utilize his time in this manner, then I certainly will respond as best I can throughout the rest of the afternoon.

The Chair: Supplementary, Mr Kwinter.

Mr Kwinter: Yes, Mr Chairman, it's understood that Mr Tilson still has the floor and that I'm just asking a supplementary.

Referring back to Instant Hansard of yesterday, page 1635-1, paragraph 4, the remarks of the parliamentary assistant clearly indicate that he has no idea how the insurance industry works. I just want to quote what he said, and then I'd like to make a comment and I'd like to get his response.

"It's the view of the government that in fact a person's insurance premium should be based on issues of relevance, like driving record. That may be a new concept to the opposition" -- which I find very condescending -- "but in terms of some of the comments that were heard earlier, it's a reasonable concept that there is no relationship between whether a person happens to be married or not married as to how their driving is going to be conducted. I would suggest that looking at a person's conviction rate, in terms of whether it's moving violations, whether or not he or she has been charged and convicted of impaired driving -- these are the kinds of issues that need to be looked at."

The point that I'm going to make is this: If the parliamentary assistant had any concept of how insurance works, he would know that that is a key element in setting a personal driving rate for insurance. Now on top of that, there is a surcharge, and the surcharge is for male single drivers who are under the age of 25. But you should know that not every single driver under the age of 25 pays the same premium.

If a male single driver under the age of 25 is driving a small car that has very little value and he has a safe driving record, his premium will be different from that of the male single driver under 25 who is driving a Corvette, who has had 16 moving violations and has totalled two other cars in his history. They will be totally different rates.

What we are talking about is that there is a surcharge because, as a class, male single drivers under the age of 25 historically and statistically have a far greater rate of accidents than other members of the community who are paying insurance, so to suggest that that is not being taken into consideration now in the way of rating drivers for their insurance premiums is just not correct. That is a key factor, and that is a determinant, plus the surcharge.

I would like to get a response from the parliamentary assistant on that issue.

Mr Owens: I appreciate the question. I am quite aware of the member's background with respect to his involvement with insurance issues. I, however, don't appreciate the lecture that has been delivered. In terms of my awareness, I'm fully aware, both from a consumer perspective as a driver as well as on a ministerial, political level of the factors that go into the rating system with respect to drivers and to auto insurance.

The point I am making in this discussion related to subsections 2(1), (2) and (3) is simply, we are pulling together and codifying and clarifying technical practices that are currently in operation. And Mr Kwinter, your government, you should be aware, under section 121 of the act, looked at the classes of risk exposure and rate, and we are simply clarifying those sections and again codifying the practice that currently exists. So I'm not sure that this lecture or pursuing yesterday's Instant Hansard is going to be fruitful in terms of the kind of fishing expedition that we seem to be engaging in, rather than some substantive discussion on section 2.

The Chair: Mr Kwinter.

Mr Kwinter: I have no comments.

The Chair: Mr Tilson.

Mr Tilson: How this all got started yesterday afternoon, if you can recall, is that I asked why. Why are we doing this? I had a series of questions, and somehow Mr Owens made the comment, as has been read: "These are issues that we have raised with respect to fairness in the system and we simply are relying on a decision that we view as being directive from the Supreme Court of Canada. If you want to suggest that we ignore the Supreme Court of Canada and continue down the road of discrimination, then perhaps you'd like to move some kind of an amendment, and we will take a look at it."

Now ignoring the fact that this decision was made a year after this bill was introduced -- ignoring that fact, which is difficult for all of us to do, but let's ignore it for the moment -- my question to Mr Owens is, will Mr Owens point to me in the decision where the directive is from the Supreme Court of Canada to do what they're doing with this philosophy?

Mr Owens: You want a response at this point?

Mr Tilson: Yes, please.

Mr Owens: I take you back to page 1625-3, and if you would like, I can read back the whole section.

Mr Tilson: No, just refer to --

Mr Owens: But I would like to --

Mr Tilson: Mr Chairman --

Mr Owens: Sir, you asked me a question, I am responding to it.

Mr Tilson: Yes, but I don't want to refer it to Hansard. My question, just so you'll know, is that I'd like you to take me to --

Mr Owens: I'm looking back at 1625-3.

Mr Tilson: Mr Owens, can you not take me to the decision, on which we've now spent considerable time? I assume, if you hadn't read it last night, you've had a chance to read it since. Can you tell me where in the decision that you're relying on that the Supreme Court of Canada gave the government of the province of Ontario a directive to put forward the philosophy that you're now putting forward?

Mr Owens: In terms of the process by which this case has proceeded to the Supreme Court, first of all, the governments of the day have been observing the situation closely. In terms of my comments, again I go back to page 353, that in terms of looking at the snapshot of 1983, that in light of the fact that there was not an alternative system, the court was in a position to do nothing more than to rule that in fact the status quo was to be maintained; certainly a rather large paraphrase on my part, but I certainly hope you won't accuse me of misquoting the Supreme Court.

Mr Tilson: You're referring to page 353 --

Mr Owens: May I finish my point, Mr Tilson?

Mr Tilson: -- as to where the directive is. Is that what you're telling us?

Mr Owens: Respectfully, sir, you have asked me a question and I am endeavouring to complete an answer. You may not like what you hear, but I am entitled to complete my answer.

Mr Tilson: It's not a matter of not liking what you're saying; it's trying to figure out what you're saying.

Mr Owens: Your rudeness is something that is absolutely amazing.

Mr Tilson: Mr Chairman, that's out of line.

The Chair: I'm sorry. I missed that.

Mr Tilson: I'm going to request a recess. I can't take this any more. This man has been insulting me and Mr Mancini -- it goes on down the --

The Chair: Okay. We'll take a 10-minute recess.

Mr Charles Harnick (Willowdale): A point of personal privilege first? I apologize, Mr Chair, for being late this afternoon, but I happen to have had had a commitment in my riding at the Willowdale Middle School. I had some children whom I met there over the lunch-hour.

I understand that my good friend from London made reference to my absence on the record. I wonder if he is entitled to do that under the standing orders. I don't believe he is. I don't believe he's entitled to make reference to me personally.

The Chair: You know, Mr Harnick, I --

Mr Harnick: Let me finish, please.

Furthermore, he will draw the parallel where I noted that none of the government members were in their chairs in Ottawa when we were hearing from the community. Quite frankly, that's a very different matter from the matter that the attendance keeper has decided to draw to the attention of the public today. I would either like him to withdraw those remarks and apologize, or I'd like you to read the standing orders and talk about the idea of drawing one's attention to the absence of any particular member.

The Chair: There's nothing in the standing orders on this, but usually we're gentlemen in here. I was about to go for a recess and discuss this, so it wasn't in Hansard, because I think this is just dirty wash that we're airing out here. And I'm a little upset, Mr Harnick --

Mr Harnick: Well, I'm a little upset when I have commitments in my riding and the member for London --

The Chair: Mr Harnick --

Mr Harnick: -- whatever it is, seems to think that what I'm doing is improper. The fact of the matter is that I had a legitimate reason for not being here. I happen to have had a commitment in my riding, and I don't want somebody behind my back making reference to my personally not being here and making the inference that I was out doing something that was improper during a time when I should have been here.

Mr Paul R. Johnson (Prince Edward-Lennox-South Hastings): You should have been here and you'd know that didn't happen.

Mr Harnick: Pardon me?

Mr Johnson: You should have been here and you'd know that didn't happen.

The Chair: This committee's recessed for 20 minutes.

The committee recessed at 1502 and resumed at 1528.

The Chair: Mr Tilson, you have the floor after this recess we've just had.

Mr Tilson: Thank you, Mr Chairman. I'd like to direct a few more questions to the parliamentary assistant, if I could, dealing with the risk classification system. Is it the government's intention to eliminate age as an allowable rating factor?

Mr Owens: As is indicated, in section 2, subsections (1), (2) and (3), which is the issue under discussion at this point, we are simply looking at clarifying the practice that exists in the industry to date. I would like to quote, Mr Tilson, starting with subsection 2(1):

"(1)The definition of `class of risk exposure' in section 1 of the act is repealed.

"(2) The definition of `rate' in section 1 of the act is amended by striking out `exposure' in the fourth line."

"(3) Section 1 of the act is amended by adding the following definition:

"`risk classification system', in relation to automobile insurance, means the elements used for the purpose of classifying risks in the determination of rates for a coverage or category of automobile insurance, including the variables, criteria, rules and procedures used for that purpose. ('système de classement des risques')."

For Mr Tilson's edification -- and I hope that Mr Tilson is listening quite carefully to this, because this is really the nub or the kernel of the debate under subsections 2(1) and (3) at this point -- the current act states, "`class of risk exposure' in relation to automobile insurance, includes all rules, procedures and factors used to determine the rates for each coverage and category of automobile insurance; ('catégorie de risques')."

If you recall, in subsection 2(2) I indicated that the definition of "rate" in section 1 of the act is amended by striking out the word "exposure" in the fourth line. By "rate," we have clearly stated in the current piece of legislation that "`rate', in relation to automobile insurance, means all amounts payable under contracts of automobile insurance for an identified risk exposure whether expressed in dollar terms or in some other manner and includes commissions, surcharges, fees, discounts, rebates and dividends; ('taux')...." So what we are undertaking to do in this section, in terms of a direct response to Mr Tilson's question, is to simply again codify practices and to utilize terms that are already in use within the insurance industry.

This is not a radical departure for a government to be taking. We see it as a recognition that we want to work with the industry to ensure that there is an excellent level of clarity in terms of the legislation. There is to be an excellent level of clarity in terms of the word that has caused people so much difficulty in the past four days, the word being "regulations." We are certainly looking to work with the industry to set out the manner or the types of variables that will be used.

I think, Mr Tilson, that you have to appreciate -- and you've had a number conversations, as our minister has had, with various representatives of the insurance industry. I certainly hope, out of those conversations, that it's been made clear that it's difficult for insurers to implement these non-discriminatory class plans on their own. We are wanting to work with people to ensure that there is a uniform risk classification so that all consumers are aware of how they are being rated. We want to take some of the mystique and some of the magic out of the process.

I'm sure that when constituents have come to your office and have asked you -- "I don't understand this system," they would probably say to you. We've had some imaginary conversations quoted, so I'd like to quote an imaginary conversation that may take place in your office, Mr Tilson.

A constituent would come in and say: "I don't understand this system. I call insurance company A and I get quote A. I call insurance company B and I get quote B. One's higher, one's lower. I may even call a third and a fourth, and there may be some variation in terms of where the rates will end up. In that respect there is not a uniform manner in which these rates are to be determined."

So looking at subsection 2(1) again, that we want to define again the definition of "class of risk exposure" in section 1, we are repealing that. It says, "The definition of `class of risk exposure' in section 1 of the act is repealed."

Subsection (2), the definition of "rate" For the purposes of this discussion, as I have indicated, "rate," under the current legislation, "in relation to automobile insurance, means all amounts payable under contracts of automobile insurance for an identified risk exposure whether expressed in dollar terms or in some other manner and includes commissions, surcharges, fees, discounts, rebates and dividends," again, the French translation being "taux." I apologize to my francophone colleagues for my pronunciation of the language.

Looking further down to subsection (3), again we are looking at section 1 of the act, amending it by adding the following definition: "`risk classification system', in relation to automobile insurance, means the elements used for the purpose of classifying risks in the determination of rates for a coverage or category of automobile insurance, including the variables, criteria, rules and procedures used for that purpose." Again, the francophone translation: "système de classement des risques."

I think that I've provided this answer on a number of occasions in terms of the section under discussion, which is section 2, subsections (1), (2) and (3).

The member for the Conservative Party, Mr Tilson, I can appreciate, doesn't agree with my response on his question and he's certainly entitled to that disagreement. I appreciate that he wants to express that disagreement. But in terms of the section itself, it's very clear, and in terms of any kind of radical departure from current legislation, looking at "`class of risk exposure,' in relation to automobile insurance, includes all rules, procedures and factors used to determine the rates for each coverage and category of automobile insurance," we're simply not moving in any kind of radical way to change things.

We have worked with the industry; we will continue to work with the industry, and we have had a good level of cooperation with respect to this request. That's from many, many insurance companies that do business in this province.

So in terms of the response, I am clearly stating again for the purposes of this debate that on subsections 2(1), (2) and (3), I have provided all the answers. I have provided them with clarity and that is certainly my job as the parliamentary assistant to the minister. Providing a simple answer doesn't seem to satisfy the member, but this is a simple section. It's a technical section. It certainly doesn't change in any radical form what is currently in practice within the industry. It doesn't do anything more than move the language contained within the legislation to anything more than what is currently in practice by the automobile insurance industry.

In terms of subsections 2(1), (2) and (3), the section before us does nothing to institute a new classification system. I would suggest that the Chair has allowed -- as is his practice because he's a concerned Chair and wants to hear all sides of an issue -- some latitude with respect to this question. However, in terms of the functional nature of this clause, which is in fact the issue under debate in subsections 2(1), (2) and (3), in terms of what it does, it simply clarifies and codifies existing practices.

In terms of comments that the minister has made, Mr Charlton has stated publicly that he is interested in looking at a non-discriminatory risk classification system. The minister has also stated that he wishes, and has clearly gone forward, to work with the industry for the benefit of consumers to ensure that there's a good level of consumer protection, to ensure that there's a good level of consumer knowledge, to look at a method of rationalizing the manner in which risks are classified across the industry.

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I think that if you sat down with the constituent whom we had talked about earlier in response to your question about subsections 2(1), (2) and (3), you would have to agree there's no understanding of how risks are assessed, and what we are doing is again adding clarity and codifying existing practices that are currently in use within the industry.

The Chair: Mr Tilson, I see Mr Kormos has his hand up. Will you give him the supplementary?

Mr Tilson: Before he does --

Mr Winninger: Mr Chair --

The Chair: Yes, Mr Winninger.

Mr Winninger: Some of us on the government side have been waiting patiently to speak during these proceedings and it would be very peculiar for someone to just come in the door and be recognized when we've been waiting patiently to be heard.

The Chair: But if he has a supplementary and Mr Tilson allows him to have some time on his floor time, then it's correct.

Mr Tilson: I have no problem with that, Mr Chair. I'd like to hear from Mr Kormos.

The Chair: Do you have a mike there, Mr Kormos?

Mr Peter Kormos (Welland-Thorold): Yes, sir. I, of course, am asking this question pursuant to my rights under the standing orders as a member of this Legislative Assembly, my right to participate in committee process, a right which cannot be hampered except by a majority decision of the committee.

I was aware of the question that Mr Tilson asked, and I realize that he's dealing with section 2, risk classification. Let me put a face on this, Mr Parliamentary Assistant. Let me put a human dimension to this, because I feel somewhat déjà vu. I remember the last parliamentary assistant, Mr Ferraro, who is working in the banking industry now, I believe. In any event, similar questions were put to him by me in a similar process dealing with a similar section of a not dissimilar, believe it or not, piece of legislation.

Let me put a human face on this, because I had a constituent, David Ripski, 27 years old, a hardworking young man in good physical condition who was a victim in the end of January 1993 in a motor vehicle accident, a passenger in a single-car accident. The driver of that vehicle was charged under the Highway Traffic Act.

The Chair: Mr Kormos, we're on section 2.

Mr Kormos: That's quite right. We're talking about risk classification. This is the human dimension that sometimes politicians are loathe to deal with.

This young man, injured as he was with several discs between the vertebrae crushed, collapsed, which meant a great deal of pain. He was unable to perform work or most of his regular duties, but it certainly wasn't permanent and serious. He knew he didn't pass the threshold. And it goes to risk classification, because he was terribly concerned -- because of course he called me shortly after the accident.

I said: "Well, I suppose you're entitled to the no-fault benefits. I mean, that's what they've been telling me. That's what Rick Ferraro told me and that's what the new parliamentary assistant told me. You're entitled to the no-fault benefits, and notwithstanding that you're unemployed, you're entitled then to the minimum no-fault benefits that unemployed people have in view of the fact that several physicians and doctors have confirmed the nature of your injury, that it will take some significant time for recuperation. When it comes to risk" --

The Chair: Mr Kormos, we're on section 2.

Mr Kormos: I know that.

The Chair: You're not even following section 2.

Mr Klopp: Mr Chair, don't interrupt. You gave him the time; now don't interrupt.

The Chair: We've got to keep on track.

Mr Kormos: We're on track. I'm trying to get this bill back on track.

Mr Klopp: It's Mr Tilson's time. It's all Mr Tilson's time.

Mr Kormos: We've got a young man who was afraid to claim for his no-fault benefit because he said, "What's going to happen?" He said, "My record is going to show that I've made a claim," because he has a vehicle that was up on blocks for the winter. He said, "My record is going to show that I've made a claim and that will put me into a different premium-setting category." I assured him that that isn't what the industry or the parliamentary assistant would say.

It was strange, because his own insurer referred him, of course, to the insurer of the vehicle in which he was a passenger, and that insurer referred him to his parents' insurer, because, after all, he was only 27 years old. You see, nobody wanted to pay the no-faults. But when he finally nailed the company down, when there was some consensus as to which company was liable, Dominion Insurance company simply said: "No way, pal. You're SOL. We're not going to pay no-faults. Fight us. Make us pay them to you. It's $185 dollars a week? Make us."

Mr Harnick: The minister said they would provide automatic payments.

Mr Kormos: The bizarre thing is that Dominion Insurance, as you know, is a big company. This is just a little person with broken discs now down in Welland, Ontario. I called the Ontario Insurance Commission yesterday seeking help. I got to talk to these voice mailboxes, and I knew the right numbers to call. This poor fellow down in Welland-Thorold doesn't have one of those $6 Queen's Park telephone books.

Interjection: With all those buttons on the telephone too.

Mr Kormos: He doesn't have a touchtone phone that let's you dial a 1 for this or a 2 for that. He's not even getting his $185 a week. Why isn't he getting his $185 a week? Was the insurance industry very specifically trying to persuade him, "You're not going to have to worry about changes in your risk classification because we're not going to pay you anyway"?

Why is this government collaborating with an industry that still doesn't give a tinker's damn about injured people? Why is this government pursuing legislation that constitutes an attack on innocent victims and doesn't even come close to delivering what even the previous government tried to promise about no-fault benefits? What does David Ripski do to get his no-fault benefits from Dominion Insurance, Mr Parliamentary Assistant?

Mr Harnick: Why, there's a worker's adviser.

Mr Owens: As always, I appreciate the colourful presentation by the member for Welland-Thorold. You have placed a specific case in front of this committee. I would appreciate getting more details and we will go forward and get the answer for you.

Mr Kormos: Will you get him his cheques? Will you get him what his rights are in the current legislation, never mind pursuing more so-called rights without any remedies? Will you get him his cheques?

Mr Owens: With the utmost respect due to a colleague, I would suggest that without having the full set of facts before me, it would be not appropriate for me to answer that question. I'm simply asking for you to give me the germane facts and we will proceed with an investigation.

Mr Kormos: Thank you. I appreciate this opportunity to get some justice for David Ripski from Welland.

The Chair: Mr Harnick, a supplementary?

Mr Harnick: Yes, supplementary. I have a matter that is not unlike the matter that Mr Kormos just talked about, except it deals directly with an assessment of an individual risk in a unique family situation. This is a person by the name of Mr Trest. Mr Test wanted to appear before the committee, but because we were in such a hurry to blast this legislation through, Mr Trest never got the opportunity. I'd just like to put on the record what he has to say about risk because, again, it puts a human face on the aspect of risk classification that we're talking about here. Here's what he says:

"Dear Sir:

"Re: Ontario Insurance Commission as pussy-cat of the insurance companies, section 5(2)(a) of O.Reg. 275/90. Sixty-year-old retirees under CPP. Right to sue. Misleading advertising by Allstate.

"I wanted to present my opinion before the committee but was told by the clerk, Mr Franco Carrozza, that I am not chosen to do so by the subcommittee. As well, I was not allowed to present my case before the subcommittee on the Ombudsman and I am asking for your help to present my opinion.

"I am 60-year-old disabled coming from the family of the political prisoners, and anti-communists and the behaviour of the NDP has nothing to do with the word `democratic,' which is in the name of the New Democratic Party of Ontario.

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"My son Saul, who will be 20 years old on March 21, 1993, who is a university student and never got even a parking ticket, does not qualify for occasional driver's rate because of my disability and inability to drive a car. On November 29, 1989, he got the auto insurance from Allstate on behalf of Facility Association, which offered my son third-party liability limits of $500,000" --

The Chair: Just a minute, point of order.

Ms Haeck: On a point of order, Mr Chairman: I understand the intent of Mr Harnick and I have some sympathy with what he is attempting to do. But by the same token, I think he has to recognize that what he is recounting is a case that has some history and I think he should also be recognizing that this government, with this legislation, which is still obviously in a range of preliminary stages -- it is not final legislation -- has made a strong effort to rectify the kind of injustices that have occurred in the Facility Association. Whatever has happened under previous legislation, his government and, in turn, the Liberal government, I think it's a little unfair to tar this government with the same brush, because we've made every effort to depopulate the Facility Association.

I do have an additional point to make, which is in fact, as your House leader had as much opportunity as ours to come to an agreement around how this committee would be structured, I would suggest, sir, that no one's democratic rights were limited.

The Chair: Mr Harnick, you're reading the letter there, it looks like you're supporting Bill 164, so I thought we could get on and vote on section 2 then.

Mr Harnick: I don't have any control on that, but I have a constituent who wanted me to read this into the record. He's asked me to read it into the record.

The Chair: But this isn't the day to read it into the record. We're on section 2 of the bill.

Mr Harnick: Well, let me tell you --

The Chair: Clause-by-clause.

Mr Harnick: If you would let me proceed, you will see that this deals with risk. It's exactly what the letter deals with and it deals with the plight of a senior citizen and his family who have a problem getting auto insurance because of the way the risk is rated. I would hope that you and Ms Haeck, who interrupted me, would at least have the courtesy of listening to a family that has a real difficulty, and hopefully it will tell you what your government should be doing.

The Chair: How long is it?

Mr Harnick: Well, it's a couple of pages.

The Chair: Oh well then, read on, Mr Harnick. Just make a summary of it, if you can, of where it pertains to section 2 of the bill.

Mr Harnick: Let me just finish this first page, so you get the feel of it, and then I'll skip through the balance.

Mr Owens: No. We want to hear the whole thing.

Mr Harnick: Okay. In that case, I'll give you the whole thing then. He got the auto insurance from Allstate on behalf of Facility, "which offered my son third-party liability limits of $500,000 for a premium of $2,228, accident benefits for a premium of $59, comprehensive for a premium of $198, SEF 44 for a premium of $4, a total cost of insurance of $2,489 for a 1984 Plymouth Caravelle purchased for $4,900, without collision coverage and including driver training discount.

"On January 25, 1990, in my presentation before the legislative committee, I called the proposed no-fault system robbery of the victims in the amount of $1 billion by the insurance companies and I quoted the statement made before the committee by Catherine McGregor of the Insurance Bureau of Canada: `Dollars that currently go to prove fault should be kept in place in the victim's hands.'

"I was correct on all points, that with the full approval of OIC, the insurance companies put $1 billion in their own pockets, but must to correct myself that it was the legalized robbery by the Ontario Insurance Commission.

"On December 20, 1990, you raised the question about Saul's insurance that was increased 30% before the Legislature. Before you spoke, another MPP by irony read a letter from Allstate president J. T. Kelaher, who lost a sense of humour that Ontario auto insurance system is the best in North America, and we do not understand what it has to do to Ontario and Saul's insurance.

"The increase of 30% was instead of a 10% decrease proposed by former David Peterson's government, and Mr Chiarelli told you to stop trying to fool the people. I saw Mr Chiarelli in his office at the Whitney Block and showed him the documents, because it's hard to believe that the insurance companies are allowed to do such things.

"You did not mention that the premium of weekly benefits by Saul were increased from $59 to $889, or 1506%, which is totally absurd. I was forced to purchase for my son the auto insurance, only $200,000 limit of third-party liability, for a total cost of $2,591.

"On November 8, 1991, Allstate, as a service carrier of Facility Association, made a renewal offer for $200,000 limit of third-party liability without collision coverage in amount of $2,492, which includes Facility Association service fee of $150.

"On January 11, 1991, for the first time, Donald C. Scott, commissioner of OIC, refused to convene a hearing under sections 372(1)(a) and (b) of the Insurance Act, as this provision applies to classes or categories and not to individual situations. Also, the decision in our case would affect millions of drivers of the province of Ontario."

That's very interesting, because what we're speaking about here are classes and how classes impact on individuals, which is what I gather this case of Bates is all about, and this is putting a human face on it.

"In justification of increase of my son's accident benefits from $59 to $889 the OIC in the letter by Faye Chung dated January 24, 1992, refers to section 5(2)(d) of Ontario regulation 275/90, which allowed the OIC to approve as is the rate of the insurance companies which considered my son, as well as all the other drivers in Ontario, as having an income of $39,000. Also he is full-time student with no income. The insurance company would not have to pay one single penny to myself, as my disability income exceeds $185 a week, or my son Bernard, who became 16 years old on November 4, 1992, and the combined payments to my son Saul and my 54-year-old wife, Rita, would be only $370 a week.

"I also have the limited medical coverage from my employer.

"As the section 5(2)(a) of Ontario regulation 275/90, which is a cancer of the Insurance Act, is not removed, the insurance companies will charge my son under Bill 164 as having an income of $1,000 a week. Also, my family income for a family of four in 1992 was $14,692.

"When I asked the OIC under freedom of information act to provide with the OIC own documents, it was none to release.

"As you know, Mr Justice Osborne, in his report recommended to punish the lawyers of the victims for making unreasonable claims, which in each case was an actuary report which cost few hundred dollars and usually settled by one portion of it.

"It does not take to be a genius to understand that the OIC should be totally incompetent or insane to approve the junk by the insurance companies, for which was paid hundreds of thousands of dollars.

"In summer of 1992, Donald Scott for the second time refused to order a hearing.

"On October 22, 1991, Allstate made an offer of renewal, including $200,000 limit of third-party liability in total automobile premium of $2,591 and on November 8, 1992 changed it to $2,492.

"On August 31, 1992, Premier of Ontario Bob Rae sent a letter to my son and I quote: `The Ontario Insurance Commission makes sure the insurance industry follows the Insurance Act and it protects the public from unfair practices.'

"On September 28, 1992, as a result of the help from my beloved Premier Bob Rae, my son received a letter from Mr Jim Fox from OIC which confirms that Allstate offers him standard program policy for a total cost of $2,541, including third-party liability $200,000 for $1,700.

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"On October 30, 1992, Allstate made an offer of renewal at the total cost of $2,423, including third-party liability of $500,000 for $1,662.

"In short, the government of Bob Rae totally lost control over OIC when Allstate changed the name of the Facility Association and continue to charge even more from innocent victims whose parents are sick, divorced or were unable to buy a car before because of low income.

"As this is just a short note of the story, I want to raise shortly only three more questions:

"The proposed Bill 164 does not take into account the changes to the Canada pension plan in 1987 which allowed to retire as early as the age 60 and as late as the age 70. The parody that at the age between 60 and 65 the victim could receive, in the case of disability retirement or disability pension and at the age 65 the disability pension called old age security and retirement and not count as income.

"The right to sue under Bill 164, which could not be separated from the ability to afford a lawyer to fight the insurance company with incomparable resources.

"I survive by miracle at the bus stop eight years ago and was able to find a lawyer who was paid several years after when the case was settled out of court. Under the proposed Bill 164, almost nobody will be able to sue as no lawyer will take the case without being paid, regardless of the result of the case, as it is the first time that the people are allowed to sue only for pain and suffering minus $15,000. The Bill 164 will totally exclude the people who are presently disabled.

"And the last is that Allstate rating classifications for good driver rate, renewal discount and driver training discount, regardless of age, which some driving schools prescribe as 40% discount. My son's policy never included good driver rate and renewal discount and I have no knowledge how much was my son's driver training discount.

"Propositions:

"1. The government of Ontario should fire Donald Scott for wilful professional misconduct and order the investigation of OIC.

"2. The hearing in my son's case by OIC should be ordered.

"3. The section 372(1)(a)(b) of the Insurance Act should be amended by the word "minister" instead of the word "commissioner."

"4. The section 5(2)(d) of the Ontario Regulation 275/90 should be expunged.

"5. The disabled recipient of Canada pension plan at the age 60 and over in the case of the injury should receive $185 a week.

"6. The right to sue should apply to the victims who, in the opinion of their doctor, as a result of injury, will have pain and suffering for a period of one or two years or more than two years instead of deduction of $15,000."

That's what Mr Trest has said, and I don't know whether you'd like me to file this or not, but I think he's quite concerned.

The Chair: You can file it with the clerk there.

Mr Harnick: It's not stapled, but you can go ahead and file that.

The Chair: Okay.

Mr Harnick: I'm not finished.

Mr Owens: I wanted to thank Mr Harnick for --

Mr Harnick: Can I finish for a second?

The Chair: Go ahead.

Mr Harnick: And then it's all yours.

Mr Owens: Absolutely.

Mr Tilson: If you'll recall, it's all mine, but that's okay.

Mr Harnick: You guys can duke it out.

Interjections.

The Chair: Go ahead.

Mr Harnick: I'm not sure what the procedure is in here any more, but Mr Trest is a man on disability income and his whole family income is $14,000. He's got this son who's 20 years old. His 20-year-old son is the only driver in the family, so the reason he got his licence and the reason his father got the car was so that he could help the family out in terms of driving people around, picking up the groceries, doing those kinds of things.

The problem is that he hasn't been treated fairly by way of risk classification, and quite simply, I don't know what you're doing about it. One can't tell from the act whether this is going to be of any benefit to my constituent or not.

Mr Klopp: It won't hurt.

Mr Harnick: I don't know if it's going to hurt him or if it's going to help him, but what I'd like you to do is to consider the sad story of the Trest family, which was forced because of risk classification into the Facility Association, when all he's doing is driving the car to help the family, and he's got a perfect driving record. You know, all of the indicia that are presently there militate against him.

From what the particular section says, it's not clear what you're going to do. It's not clear what filings are going to be necessary and what standards and criteria are going to be used. You know, it makes it very difficult to argue on behalf of Mr Trest, because I don't know what you people are going to do, and I don't think you've told us what you're going to do. Trying to pin you down as to what this really means is almost like trying to nail jelly to the wall. I wish I could tell Mr Trest that his son will not have to wait till he's 25 or married or whatever to be helped. Mr Winninger's nodding his head, but I don't know --

Mr Winninger: Yes, because if you got this bill passed, we could help Mr Trest.

Mr Harnick: I don't know upon what basis he says that. The other aspect is that this individual, Mr Trest, has been trying to have a hearing before the board for some time and he keeps being denied. So I merely filed that so that I know that Mr Owens will immediately take this issue up with the powers that be, because he offered that to Mr Kormos.

I filed my details and I just hope you can help Mr Trest out, because the minister has told us in the Legislature that these things should be automatic. I just hope you can make it automatic for Mr Trest.

The Chair: Mr Owens to clarify.

Mr Owens: Exactly. I'd like to begin by thanking Mr Tilson for bringing this, I would suggest, rather sad example of how OMPP works and the compelling reasons why we need to change this legislation. I think that Mr Trest's letter indicates in very clear ways the difficulties with the current system, and Mr Harnick, the member for Willowdale, quite appropriately asked what he can tell his constituent or the writer of this letter.

I would suggest, and this is by way of my own humble suggestion to the member for Willowdale, that he talk to his colleagues in opposition and say: "I have this letter from this individual who is seriously getting shafted under OMPP. We need to move along to take a look at subsections 2(1), (2) and (3) so that we can move through this bill, so that we can address the issues that Mr Trest illustrates in his rather compelling letter."

In terms of his concerns around the issues of the Ontario Insurance Commission, I have certainly heard those concerns and I will certainly take them back to the minister for response. I'm glad that you were given the opportunity to raise the issue on behalf of Mr Trest. Mr Trest is a constituent of yours, Mr Harnick?

Mr Harnick: Yes. You see --

Mr Owens: May I finish my point, please? In terms of you performing your job as a member, I just want to thank you. You have undertaken, in a very serious and compelling manner, to bring to light this rather sad example of what happens to a person, an accident victim, those people that we in this room, from all sides of the House, are clearly concerned about.

We'll certainly take a look at some of the amendments. I guess I need to know, for the purposes of clarification, whether or not these are amendments that are being tabled by the Conservative Party, or are these issues that you would simply like us to look at and respond to in some manner? Are you officially tabling these as your recommendations?

Mr Harnick: I don't know what you're talking about.

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Mr Owens: You read amendments that Mr Trest has --

Mr Harnick: Those are amendments that Mr Trest is suggesting, and I want them considered.

Mr Owens: I'm simply asking you, for the purposes of clarification, as a person who has brought this to our attention. Again, I appreciate the fact that you've done that, because there are some very serious issues here to be concerned with. He has suggested some amendments and I'm asking whether or not your party is supporting these. Can we add these to the list of the three amendments that have come forward so far on behalf of your party?

Mr Harnick: I think, sir, that it would be rather unusual if my party brought forward an amendment in formal terms asking the government of Ontario to fire Donald Scott for wilful professional misconduct and order the investigation of OIC.

Mr Owens: It certainly wouldn't be straying far from the point of --

Mr Harnick: I think it would be rather unusual indeed to place an amendment dealing with Bill 164, indicating that under a new section of Bill 164 Mr Trest's son should be provided with a hearing. I don't think that would be apropos in terms of an amendment.

There's been a suggestion that a regulation or a section of the Insurance Act that isn't even before us today, that would be totally ruled out of order, such as the amendment of section 372 of the Insurance Act, be amended. So I think to ask me to do that, again, shows a total lack of understanding by the parliamentary assistant.

To ask if I'm going to be bringing you an amendment to amend clause 5(2)(d) of Ontario regulation 275/90 -- you know, of course, that the regulations have been ruled out of bounds here, number one. Number two, when is the last time a parliamentary committee had the opportunity to amend regulations? You won't even put them before us. Now you're asking me if I want to amend them.

Did you want me to bring in an amendment indicating that the disabled recipient of the Canada pension plan at the age of 60 and over, in the case of the injuries, should receive $185 a week? I mean, that's again in the regulations. You've told us. You wouldn't let us debate the regulations yesterday.

Then: "The right to sue should apply to the victims who, in the opinion of their doctor, as a result of injury, will have pain and suffering for period of one or two years or more than two years instead of deduction of $15,000." There's no question from what you've heard in the reams and reams of pages of evidence of people who came before this committee, in every location that we went to, that you've got to amend that section dealing with the $15,000 deductible because it just is not acceptable, yet here we have sat for four days. You've provided us with some amendments, and I can't believe that a government that professes to be responsible --

Mr Owens: We have provided you with many amendments.

Mr Harnick: Let me finish. I let you finish; you're going to let me finish --

Mr Owens: With interruptions.

Mr Harnick: Chairman, do your job, please.

The Chair: Mr Owens.

Mr Harnick: It seems to me inconceivable that after what this government heard, to provide us with the package of amendments that it provided us with two days before the hearings started, amendments that could have been provided long before that, that you haven't even dealt with the most important section dealing with innocent accident victims.

Mr Owens: Just in terms of the --

Mr Harnick: Just let me finish. Chairman, I think you should do your job.

Mr Owens: Are you the co-chair?

Mr Harnick: No, you're the co-chair. That's been the problem here.

The Chair: Mr Harnick, carry on.

Mr Winninger: On point of order, Mr Chairman: I was hoping that when Mr Harnick completed his supplementary, there might be time for a government member such as myself to have a supplementary.

Mr Owens: Of course, I would think so.

Mr Harnick: Those are the rules. I don't see why not.

Mr Tilson: As soon as Mr Harnick's finished with his question, I'd like to hear Mr Owens's answer to his question.

Mr Owens: I'll certainly provide it.

Mr Tilson: I haven't heard him give an answer yet to this question. It's a very important question.

Mr Harnick: At any rate, when the parliamentary assistant says to me, am I going to put in an amendment that asks for the firing of Mr Scott, I have to wonder, how can we entrust such an important piece of legislation to his guidance? It just boggles my mind.

At any rate, those are my comments. I just hope that you can do something for my constituent, Mr Trest, that's all. That's the only reason I read this. I read section 2 of the act and I read that it talks about risk, but I don't have any idea what you're going to do.

Mr Tilson: They don't either.

Mr Harnick: Nobody's told us. I've sat here for two days listening to the parliamentary assistant give us a case report on this Supreme Court case dealing with Michael Bates. I haven't heard such theory. We talked about the ratio of the case and we talked about the obiter dicta, and I haven't been so stimulated since I was in law school. I didn't understand it then and I don't understand it today.

I just wish you'd say to us, "Here's what we're going to do dealing with risk," so that the insurance industry would understand, so that Mr Tilson and I would understand, so that Mr Mancini would understand and, even more important than all of us, so that Mr Trest could be able to say, "Boy, all of a sudden, instead of $2,500 for insurance at the minimum levels, now I can pay $800 or $900 like everybody else." Would you believe that this guy bought a car for $4,500 and in the last three years he spent more for insurance premiums than the value of the car, and you people won't tell us what it is you're going to do?

Mr Johnson: Happened to me when I was a kid.

Mr Harnick: Well, you're terrific. I mean, Mr Johnson, sometimes, by the remarks you make, I think you're still a kid.

Mr Johnson: I am. Don't I look like a kid?

Mr Harnick: No, you look worse than a kid. You look like a kid who's over the hill.

At any rate, my criticism of this procedure is only that you haven't told us what you're going to do. I've sat here for almost two days talking about this section and I still don't have any idea about your concept of risk, what you're going to do to help people like Mr Trest. I'm sure that the insurance industry finds this frustrating because it doesn't understand what it is you're going to do either. You can keep talking about this case and dissecting the ratio decidendi or the obiter dicta, but doesn't help Mr Trest.

Mr Dadamo: Are those plant names?

Mr Harnick: No. I learned those terms earlier today from Mr Winninger.

Mr Winninger: Give yourself more credit than that.

Mr Harnick: I was really impressed, actually, because they don't use those terms when I read my law in the Toronto Sun.

Ms Haeck: You might want to change your reading material.

Mr Winninger: If only he could get past page 3.

Mr Harnick: It depends on whether you believe in the human element and being attuned to what happens to people or whether you read the theoretical things like the Ontario Human Rights Commission v Zurich and Michael Bates, because quite frankly, you've not told anyone what your concept of risk is, what you're going to do to rate policies and what you're going to do to help people like Ilya Trest and his son Saul. So I'm going to take my leave of you at this stage because --

1620

Mr Owens: Please don't leave.

Mr Harnick: You want me to stay?

Mr Owens: Absolutely.

Mr Winninger: Mr Trest needs you.

Mr Owens: You are his advocate.

The Chair: Okay. Have a good weekend there, Mr Harnick. Mr Tilson.

Mr Owens: I thought I was going to respond to that.

The Chair: Mr Tilson, Mr Winninger would like to have a supplementary. You have the floor.

Mr Tilson: A question to Mr Owens, is it, on my question?

The Chair: No. You have the floor. Mr Winninger had his hand up for a supplementary, asking your permission, because you have the floor, for a supplementary. That doesn't give him the floor.

Mr Tilson: A supplementary to what? Does he remember what my question was?

The Chair: I think so. It was quite a while ago, but --

Mr Tilson: What is my question? I bet you no one can remember what my question is.

Mr Owens: Is this a test?

Mr Winninger: My question was very similar --

Mr Tilson: No. What was my question that you're asking a supplementary to?

Mr Winninger: I think what you're doing is exploring the whole ambit of section 2 as it relates to risk classification, and the question that I've heard all day was, do we have empirical evidence that would warrant --

Mr Tilson: No, not my question. I'm going to remind the members of the committee what my question was. My question to Mr Owens was, is it his government's intent to eliminate age as an allowable rating factor? That was the question. We heard Mr Owens answer --

Mr Owens: With clarity.

Mr Tilson: -- and I don't know whether you -- do you have a supplemental question on that point?

Mr Winninger: I'm quite concerned about risk factors subject to age myself --

Mr Tilson: No, no. My question was to eliminate age --

Mr Winninger: -- and my supplementary had to do with that.

Mr Tilson: Is it the government's intention to eliminate age as an allowable rating factor? Do you have a supplemental question to that question?

Mr Owens: Absolutely.

Mr Winninger: Yes, because I have a question that's directly related to --

Mr Tilson: To what?

Mr Winninger: -- the question you posed, and I thank you for refreshing my memory.

I think it's really helpful that Mr Harnick has come and put a human face on the issues that we've been discussing. Frankly, it wasn't my idea to discuss obiter dicta and ratio decidendi, but Mr Tilson was doing such a good job of dissecting the Zurich and Bates case that I felt stimulated to enter the fray.

I think that all of us elected members have a Mr Trest in our ridings. I can't tell you the number of times that I've telephoned or written to the superintendent of insurance addressing the kinds of very human problems that people experience, and even when I ran in 1987, there was a Mr Trest who was having difficulty getting affordable insurance rates. Frequently, we hear of whole families of new Canadians who are reliant and depending on one particular person to drive them wherever they go, and I think it was very helpful to hear about the Trest family in that they're all relying on a young driver to get them back and forth wherever they have to go who's being charged extremely punitive rates for premiums.

I put it to you, it would be very peculiar, if I were insuring my house, for the agent to say, necessarily, "Well, are you married, and how old are you, and are you male or female?" if I'm speaking over the phone. Frequently, people call me Mrs Winninger. I think it would be very irrelevant for the insurance agent to ask me questions like that.

Mr Kwinter: Mr Chairman, on a point of order: I've never heard of a house being in collision with another house.

Mr Winninger: That's not a point of order.

Mr Kwinter: It is a point of order. How can you possibly relate one to the other?

Mr Winninger: I was developing my question here.

The Chair: I'm going to overrule there. Let Mr Winninger carry on so he can understand.

Mr Klopp: I've seen trailer homes hit on the highway, actually.

Interjections.

The Chair: Mr Kwinter, this is legal talk between the two lawyers here.

Mr Kwinter: Sorry about that. I'm out of my league when they're talking legal.

Mr Winninger: I'm bringing this down, Mr Chair, to bricks and mortar. What the insurance agent asks me is: "What's your house made of? Is it made of brick? How old is it? How do you heat it?" Questions like that. These are relevant questions to what kind of rates should be imposed on me to insure my house.

Similarly, valid questions around my driving experience -- how far I drive to work, how often I drive my vehicle, what kind of vehicle I drive -- these are all highly relevant to what kind of premiums should be charged, and that's what risk classification comes down to. It's also proper, I would submit, to ask me how many accidents I've had, how many times I've been charged, because that too is directly relevant to my driver record and what kind of rates should be set in my particular case. So I think the Zurich case is suggesting that we move in that direction.

I know Mr Harnick is working diligently on behalf of his constituent Mr Trest, and there are many things that Mr Harnick would like to see for Mr Trest, many things that Bill 164 offers to Mr Trest. I know, if the truth be known, that Mr Harnick is quite pleased with many aspects of this bill and would like to see them move ahead -- the indexation of benefits, the extension of injury to psychological trauma, the increased loss of earnings in weekly benefits -- and many other benefits, as a lawyer for accident victims, Mr Harnick would like to see.

Mr Ralph Nader also was of the same mind, and Mr Nader said at the time that OMPP was looming, "Premier Peterson and your party and your government, please change your course before you go down in history in infamy and disgrace."

Mr Tilson: What does Mel Swart say?

Mr Winninger: It took the election of our government to chart a new course to reform the OMPP. It may not be everything that Mr Harnick wants, because he may want --

Ms Haeck: He'd like economic loss.

Mr Winninger: Yes, full economic loss, which is permissible for insurance companies to offer as a product under Bill 164. He may want full recourse to tort for pain and suffering, but there has to be some tradeoffs in the form of a deductible in order to pay for what is seen to be very important to accident victims, and that's rehabilitation and long-term care, which don't come cheaply, unfortunately. I could refer extensively to what Dr Trebilcock said on these issues, but I think his message was that there is in fact a balance, there is a tradeoff.

So to come back for a moment to the issue of how we rate premiums for young people or unmarried people, male people, to come back to that, I would put it to the parliamentary assistant that we have to balance the interests of the young and old, male and female, married and unmarried. We have to ensure that criteria which may at one time have determined insurance premiums, but may not in this day and age of equity and fairness, no longer rule the day. We need to look at that, but we can't just do it in isolation. We need to consult with people out there.

I remember in law school many years ago Professor Julius Grey saying that the real power of government is not in the legislation it passes, it's in the regulation-making power, because that's where the real order-in-council power resides.

Mr Tilson: We are not allowed to talk about that. We can't talk about that. You've got to stop talking about regulations.

Mr Winninger: Right, but I find it somewhat surprising when a 68-page document is circulated for comment and approval --

Mr Tilson: But you can't talk about it.

The Chair: He's just tying it in.

Mr Winninger: I'm not saying "regulation" -- a 68-page document which is shared with the public and what the opposition might call special interest groups to determine their reaction, and yet we're assailed as a government because the document is "too long" or "too complex" or, "Is this the exact document that's referred to in section 1 of the act?"

1630

Mr Tilson: How can it be assailed if you can't even talk about it?

Mr Winninger: Frankly, I can't understand why the opposition isn't coming forward and making a positive affirmative response or suggesting some amendments, as Mr Owens just suggested, that can make this act or the 68-page document work better.

The Chair: I'm sorry, but we're not discussing that, Mr Winninger.

Mr Winninger: No, but I guess what I was hinting on was the balance of interest.

Mr Tilson: Resign, and we'll write the regulations.

Mr Winninger: Professor Trebilcock has suggested that our benefits under Bill 164 are extremely generous and very timely, but there are tradeoffs. Similarly, in a risk classification system, if there is so much money in the system, if some people have their premiums redressed because they're inequitable given their age or marital status or gender, then in order to ensure that the money that's in the system remains, other people will be affected. I can only anticipate that the people in my riding who may have young children, new Canadians, for example, who drive them to work or to school or to their second-language place of education, will approve of the fact -- and I do have a very large and growing ethnic community in my riding -- that we're reducing the kind of punitive rates that Mr Harnick described and that Mr Trest is experiencing.

I think it's also important to be mindful, and I'm hoping the parliamentary assistant will agree, that any regime that's set up under Bill 164 would have to ensure and guarantee that bad drivers pay higher insurance premiums. I'm firmly convinced that if I go out and drive safely, I'm not driving safely because I'm thinking in the back of my mind, "Well, maybe I'll collide with someone and I'll be sued for tort and 10 years down the road I may have to pay a large judgement with interest." I'm thinking to myself that (a) I don't want to break the law, (b) I don't want to injure myself and (c) these are appropriate rules of the road and I don't want to breach the Highway Traffic Act. I don't want to be charged with criminal negligence and I don't want to wind up in an accident myself.

But I want to drive knowing and being assured that if I am in an accident, whether technically it's my fault or someone else's fault -- and everyone's attention can waver, everyone can have a mechanical defect or even a tire that blows and sends them off the road -- but if I'm driving and I'm technically at fault and I bash into a car on the other side of the highway, I want to be assured that I will be taken care of; that I will get the rehabilitation and long-term care that I need; that my family will be taken care of; that if I have a source of income, I will continue to enjoy some measure of lost earnings. I put it to you that I would hope that I'm one of the 97% of the populace that this bill would extend to. I would put it to you that's a reasonable balance to ensure that all accident victims are properly taken care of.

I'm a little concerned when I see the opposition wanting, in my view, to hold up the progress of the bill, because I know that every hour there are a number of accidents happening out there on our roads. And even though we may take very progressive measures to make the roads safer and to prevent accidents, I want to know that those victims in those accidents, which happen each and every hour, are going to be better looked after than they are under the existing legislation. Quite frankly, I think that putting a human face on the kind of misery that often follows a motor vehicle accident is a very constructive way to approach some of the issues that arise under Bill 164.

So my supplementary to Mr Owens will be: Do you not think that, given your experience and the nature of your constituency, moving towards a uniform classification system while at the same time considering other measures for road safety will bring down insurance rates that are unreasonably high right now for people such as Mr Trest?

Mr Owens: I'd like to thank the member for his very direct and very cogent question. You've raised a number of issues that the government is concerned about in terms of the risk classification system, and I think you would agree with me that in terms of the way we would be wanting to proceed in this process is first of all to bring our attention to subsections 2(1), (2) and (3).

In terms of how that reads, section 2 looks something like this:

"(1) The definition of `class of risk exposure' in section 1 of the act is repealed.

"(2) The definition of `rate' in section 1 of the act is amended by striking out `exposure' in the fourth line.

"(3) Section 1 of the act is amended by adding the following definition:

"`risk classification system,' in relation to automobile insurance, means the elements used for the purpose of classifying risks in the determination of rates for a coverage or category of automobile insurance, including the variables, criteria, rules and procedures used for that purpose."

I'm extremely pleased that Mr Winninger's question has come forward, and I was just as pleased to have Mr Harnick represent his constituent Mr Trest and bring what appears in our view to be a very clear example of the unfairness under the current regime and the even more compelling need to change it.

One of the issues that you addressed -- I'm sure I heard you address that -- was with respect to rates, and it appears that Mr Trest's son was sent into the Facility Association and was paying extremely high rates. As you, Mr Winninger, and other members around this room were aware, many, many people, irrespective of the risk that they posed to the insurance system, were simply put into the Facility Association.

Because you're an effective member and you do your homework and in terms of being a learned counsel, you're also aware that on January 1, the depopulation of the Facility Association began to take place.

Mr Harnick asked and I guess your question is related to -- what's the phrase we're using, "tied in"? Your question is tied in to the supplementary question that Mr Harnick posed through his reading of Mr Trest's letter. As I say, on January 1, the depopulation of the Facility Association began and will continue in that there will be an opportunity to take a look at those who truly belong in the Facility Association as part of their driving experience. As of January 1, when the new regulation took place -- again, it addresses the supplementary question with respect to rates, which is clearly related to subsections 2(1), (2) and (3) that clean risks will no longer be eligible for the Facility Association.

I think you addressed the fairness issue, again, in very cogent terms. I, like you, represent a riding that's multicultural in nature, and in terms of the older definitions, the more traditional definitions that have been utilized by the industry, I think there has certainly been change in the society. There is no longer a tolerance for the kinds of discrimination that have taken place in the past in terms of how people are treated, whether it's by insurance companies or any other groups, so your comments are thoughtful and they address an issue that the government, of which you are a very able member, is attempting to address in this -- if I may pause for a sip of water.

1640

Mr Winninger: The feelings are mutual.

Mr Tilson: What a way to end this committee.

Mr Owens: In terms of the section under discussion, and because Mr Winninger's supplementary is tied in to the supplementary question which was, of course, tied into Mr Tilson's time, I didn't have an opportunity to thank Mr Harnick for laying out in response to a question of mine the responsibilities of an MPP and what would happen if regulations were moved in this committee, which clearly provided the lack of historical precedent for the discussion of regulations in committee. I thought that was quite thoughtful.

Mr Mancini: Can't talk about the regs.

Mr Owens: You're right, we can't talk about the regs, and Mr Harnick certainly provided historical context for us to live comfortably with that decision.

In closing, Mr Winninger, again I want to thank you for your question. You've touched on many important points; the necessity for us to move forward, to address the concerns of Mr Trest and many accident victims who will fall into this system. I expressed this concern a day or two ago, that while we had spent nine and a half hours on section 1 debating merely a technical issue with respect to a name change, more people have fallen into the situation of the Facility Association notwithstanding. As you're aware, we've developed regulations and the depopulation of the Facility Association began on January 1, but many, many people, perhaps through no fault of their own, have fallen into the -- I guess the term was "the ambit" of what currently exists with respect to the class of risk exposure, which in fact would certainly have an influence on rates.

Mr Tilson made a comment which of course was tied into your supplementary, which was tied into Mr Harnick's supplementary, which was tied into Mr Tilson's time with respect to, "What a way to end the hearings." I'd like to concur with that, Mr Tilson, in saying that in the 15 minutes that we have left in these hearings, it causes me some concern that we haven't been able to go forward to help the constituents of his colleagues, like Mr Trest, so that future accident victims won't have to go through the kinds of problems that Mr Trest's son has had to experience.

Mr Tilson has brought forward amendments that we clearly wanted to have an opportunity to deal with. The Liberal Party appears to be totally happy with the Ontario motorist protection plan and didn't offer any amendments to this process. So I want to concur with Mr Tilson's comment, "What a way to end the hearings." We could have done some good work here today; we could have done some good work on Wednesday; we could have done some good work on Tuesday; we could have done some good work on Monday. We could have started the process to alleviate the kinds of difficulties that have occurred. We could have started to ensure that people would no longer have to face the cap on long-term care, in terms of the $500,000 cap, which leaves the most catastrophically injured in our society vulnerable to the system.

Mr Mancini: He's talking about the regs now, Mr Chair.

Mr Owens: Mr Winninger, I would guess, is a person who is concerned about people. Having had an active law practice prior to coming to this Legislature, you probably --

Mr Tilson: He'll probably give you flowers at the end of the day; maybe even candy.

Mr Owens: -- you probably dealt with people who would have been helped by this legislation, and you came here this week to advocate on behalf of those people. We have only been able to get to Subsection 2(1), (2) and (3); we weren't able to get through the potentially 10 technical sections, merely name changes, clarifications. We weren't able to deal with the amendments, such as the amendment to section 7 that Mr Tilson proposed. We told him we were interested in dealing with that. We think it's a good suggestion. We wanted to work with the Conservative Party; we wanted to get that amendment out on to the floor so that we could deal with it in a manner that Mr Tilson feels is appropriate. And we urged him -- we asked him, we begged him -- to talk to his colleagues. "Please, we want to move through this process."

I want to conclude my remarks, Mr Chair, in response to Mr Winninger's supplementary question, which was a supplementary question on Mr Harnick's supplementary, which was tied in to Mr Tilson's time, in saying that it's now almost 4:50. We have just over 10 minutes of the clock left to deal with some extremely important issues, clauses that would help victims who, as we sit here debating this section, are going to need subsections 2(1), (2) and (3) to ensure that their risk classification is dealt with in a fair manner and, if we are able to move on, to ensure that victims receive fair and equitable treatment under this legislation.

The Chair: Mr Tilson. Supplementary, Mr Mancini -- or do you want to yield the floor yet?

Mr Tilson: Well, no. The original question, of course, I asked was on the government's intent to eliminate age as an allowable rating factor. I think it's wonderful that the question has stimulated all the questions that have come forward, and I'd be pleased to hear from Mr Mancini on a further supplementary question.

Mr Mancini: The first thing I want to say is that given the lengthy and interesting answer that we received from the parliamentary assistant, I hope the minister's staff was listening to the parliamentary assistant's answer, and I hope that ties in to that private conversation we had earlier on, because that's been one of the problems from day one on this committee.

In regard to Mr Winninger, sir, I don't know, the next time I meet you in the hallway, if I'm going to have to bow or genuflect. I want to congratulate you for having made such a profound impact on the parliamentary assistant. I knew prior to all of the accolades that you received from him that you are in fact not just one of the ordinary members of the House but something more than that.

Mr Winninger: I speak highly of you as well.

Mr Mancini: I think you're going to be one of the next ministers without portfolio. I mean, after this, how can you be held back?

Mr Winninger: I'd rather have the portfolio.

Mr Mancini: I'd like to get back to Mr Tilson's supplementary question, but before I do, I want to make one other comment. Some members of the government have now been saying that woe is the public because we've not saluted and adhered to the government's request to immediately pass Bill 164. It wasn't our decision for you people to delay hearings till January. That was a government decision that was made based on whatever information you received. The hearings could have been held earlier if that's how strongly you feel that Bill 164 should have been passed. It wasn't our decision for you to take two years to decide to go this route; that was your decision. You could have gone this route your first 30 days in office. So don't give us that song and dance that because we don't want to have thorough debate on Bill 164, woe is the public.

1650

The other point I'd like to make -- and please go through all of these presentations that we've had -- is that the majority of these people have said, "If we had our choices between OMPP and Bill 164, we'll take OMPP." Your last comment to the parliamentary assistant, Mr Winninger, was something about a uniform classification system. That's exactly what I spent a lot of time talking about yesterday, and we couldn't get an answer from the parliamentary assistant.

I tried to raise the issue on behalf of 1,000 senior citizens' clubs in Ontario, and the senior citizens' organizations, representing over 380,000 seniors. I begged the government to respond as to how we would be able to improve the lifestyle of senior citizens by charging them more. I wanted to know that.

I also wanted to know, if that in fact was not going to be the case -- please put it on the record, somebody; yourself, Mr Winninger, or Ms Haeck or the parliamentary assistant. Somebody put it on the record very clearly that Bill 164 will not do these seniors any financial harm. If you're so confident that this uniform rate classification system is the way to go and you're confident that it's going to be accepted and you've made the fundamental decision that that is the direction the government is going, please have the courage to say to the thousands of seniors and their organizations: "This will not adversely affect you financially. Mr Mancini may have raised some points, Mr Tilson may have raised some points and Mr Kwinter may have raised some points, but they're all wrong, and as a government it's our policy, it's our commitment to you as seniors that we're not going to allow the uniform classification system to jack up your automobile insurance rates."

That's all we're waiting to hear. If that's the case, tell us that, and we can go on to section 3. But you've refused to tell us that. At the same time, you've refused to tell us that the uniform classification system -- the words that you used in your last comments to the parliamentary assistant -- tell us it's not going to adversely affect women, who traditionally and to this day still earn less than their male counterparts and who don't have the spare change to pay extra for their automobile insurance.

I begged the committee; I gave the committee innumerable examples yesterday afternoon of what the real-life implications would be for homes headed up by single parents. Nobody said to me or to anybody else on this committee: "Well, that's a good point, and you know, I'm glad you raised it because it gives us as a government the opportunity to say that the people you've just talked about are not going to be adversely affected financially. I'm glad you raised it because it gives our government a chance to clear the air on this matter." No one has said that.

We've just skirted the issue. We've heard a lot of answers about a lot of things. But why can't someone on the government side say to these millions of people, seniors and women who are going to be adversely affected, I believe, that Mancini is wrong? Why can't somebody say that and make a commitment that it won't happen? If you can do that, I'm sure that will eliminate the main stumbling block on section 2. That is the stumbling block, and it's not technical in nature. I don't accept the parliamentary assistant's description that this section is technical in nature.

So say clearly that it's the government's policy that seniors and women won't be hammered through increases in their automobile insurance rates and let's get on with it. I'd like an answer to those questions, Mr Chairman.

The Chair: From me?

Mr Mancini: Through you to the parliamentary assistant.

The Chair: Well, we've got five minutes. Mr Owens.

Mr Owens: I thought, Mr Hansen, you've been doing so well over these hearings to provide answers for people that you might like to take a shot at this one as well.

Mr Tilson: No discrimination here. He takes shots at the chairman too. Takes shots at everybody.

Mr Owens: I hear the rumbling from Mr Tilson again, and I'm being interrupted.

Mr Mancini asks a question that has been answered in many different ways over two days in terms of this section. Mr Mancini chooses not to believe that it is a technical section, and I have a firm belief that I don't have the authority to challenge people's reality. Mr Mancini believes what he wants to believe.

I want to repeat that subsections 2(1), (2) and (3) simply act as a clarification and a codification of existing practices within the industry. It does nothing to set up a new classification system.

There have been insinuations that I have misled the committee in terms of the reasoning, and I still stand behind my comments. I stand behind my response to Mr Mancini and Mr Tilson in terms of the purpose behind subsections 2(1), (2) and (3).

I think it is very difficult to operate in an environment where a member is asked a question and to the best of his ability and with the utmost honesty goes forward and answers a question that clearly sets out the purpose behind a section and yet is accused of misleading the committee, is told that he has been unhelpful, is told that he knows nothing. I find that a little bit difficult to take and I am not quite sure how it relates to subsections 2(1), (2) and (3). That again is a technical section.

The Chair: Mr Owens, we discussed that earlier.

Mr Mancini: Mr Chairman, did you understand my question, sir?

Mr Tilson: Very touchy.

Mr Mancini: Did you understand my question? I'd like to know, because --

The Chair: We've got one minute.

Mr Mancini: I want to know from you, Mr Chair, if you understood my question.

The Chair: Yes, I did.

Mr Mancini: Did you understand my question to be very straightforward? All I wanted to know from the parliamentary assistant was whether or not Bill 164 was going to raise the rates of seniors and women because of this classification system. Surely he could say, sir --

Mr Owens: The classification system has not been set up.

Mr Mancini: -- that yes, it is, or no, it won't. He hasn't even come close, or he doesn't know. That's fair.

Mr Owens: The classification system has not yet been set up. It is not set up under subsection 2(1), (2) and (3).

Mr Mancini: It's not yet been set up.

The Chair: I'm just going to ask Mr Tilson, there's one minute left; is there something you want to bring forward?

Mr Tilson: Yes. There was a presentation given some time ago by State Farm on this topic. It's a brief statement and I'd like to present it because I think it adequately expresses the concerns --

The Chair: One minute.

Mr Tilson: -- of all of the people of this province:

"Bill 164 proposes to impose a uniform classification system upon auto insurance in Ontario. It further proposes to eliminate age, sex and marital status as rating factors to be used in the pricing of auto insurance in Ontario.

"This classification system will result in unjustified rate increases for many consumers, reduce fairness and equity of auto insurance premiums, generate many complaints from consumers, reduce competition for the resulting underpriced risks, increase administrative expenses.

"This system is fundamentally unfair. It would have a substantial and deleterious effect upon certain types of drivers, particularly women and senior citizens.

"The government's policy paper, The Road Ahead, was released at the time of the introduction of Bill 164. It stated that a uniform classification system was a goal of Bill 164. None the less, the Mercer study, commissioned by the government, failed to address the significant cost increase that would be imposed upon consumers as a result of this change.

"Exhibit 5 of this State Farm brief on Bill 164 is a graphic demonstration of why the uniform class system should not be implemented in Bill 164. In addition to the rate increases upon females and senior citizens, other criticisms of a uniform class plan includes divergence from equitable, actuarially sound rate-making for all classes of drivers. The cross-subsidization of certain insurance risks inevitably would tend to result in a construction of the market for those types of drivers such as youthful males in the Toronto metropolitan area.

"A uniform classification system is not more fair or more equitable than the current system of classifying risks. It is, in fact, just the opposite. The costs" --

The Chair: Mr Tilson. We're two minutes over as it is now. I thought it was very short.

Mr Tilson: I have one more sentence, Mr Chairman.

"The cost of insurance should follow the lost costs generated by a particular type of risk. To substantially change the system of risk classification at this juncture is especially onerous upon women and senior citizens."

Mr Chairman, I have a lot more to say about this topic, and I don't know how you're going to propose to allow me to do that.

The Chair: Well, that would be up to the House leaders.

Mr Mancini: I'd like to make a motion that we sit tomorrow in the morning and afternoon. I would so move.

Interjection: Agreed.

Mr Mancini: I'd like a recorded vote.

The Chair: Recorded vote, whether we sit tomorrow. The motion is on the floor whether we sit tomorrow.

Mr Tilson: There's a lot more work to do on this bill.

Mr Owens: I strongly oppose that motion.

The Chair: All those in favour?

Mr Tilson: I'd like to speak on that motion.

Mr Klopp: Call the question.

The Chair: Call the question. All those in favour?

Ayes

Kwinter, Mancini, Tilson.

Clerk pro tem: Three.

The Chair: All those opposed?

Nays

Haeck, Johnson, Klopp, Owens, Winninger.

Clerk pro tem: Defeated, Mr Chair.

The Chair: The motion is defeated.

This committee is adjourned. We'll see Mr Kwinter and Mr Johnson on Monday at 2 o'clock in room 151.

The committee adjourned at 1703.