Hansard Transcripts 1984-Dec-04 | Legislative Assembly of Ontario

Mr. G. I. Miller: Mr. Speaker, on a point of information, I would like to bring to your attention that the apples on our desks today were grown at the farm of Tom and Joan Haskett in Victoria. He has 240 acres of orchards.

They are presented by the member for Haldimand-Norfolk just to focus a little attention on Christmas, which is drawing close. I believe it adds a little colour to the Legislature to have a little red tinge from the delicious apples that are put on every member's desk.

Mr. Speaker: On behalf of the Legislature and myself personally I would ask you to convey our thanks, particularly because of the fact that I seem to have two rather than one. Thank you.

ANNUAL REPORT, PROVINCIAL AUDITOR, 1984

Mr. Speaker: I beg to inform the House that I am today laying upon the table the annual report of the Provincial Auditor of Ontario for the year ended March 31, 1984.

STATEMENT BY THE MINISTRY

MORGENTALER TRIAL

Hon. Mr. McMurtry: Mr. Speaker, my senior crown law officers and I have examined the legal implications of the acquittal of Dr. Henry Morgentaler and others of conspiracy to violate the provisions of the Criminal Code with respect to abortion.

I have asked my crown law officers to consider whether or not this is an appropriate case for me to appeal to the Ontario Court of Appeal pursuant to the provisions of clause 605(1)(a) of the Criminal Code. The matter has been studied with great care by my legal advisers and I have had the opportunity to meet with them and consider their recommendation.

In the normal case, it is perhaps somewhat unusual to make a statement in this assembly about the reasons for such a decision. In this case, because of the very high degree of public concern about the legal issues involved, I think it is appropriate that I advise this House not only of the result of the decision but also in a general way of the reasons for that decision.

Considering the legal importance of the issues involved and considering the public interest in ensuring that decisions in this matter be made scrupulously in accordance with the correct legal principles, it seems appropriate at the outset to remind the members of this assembly, and the public, of some of the fundamental principles in relation to this decision.

The first great, central principle is that decisions made by the Attorney General and his crown law officers in criminal matters be based purely on legal considerations and considerations of the public interest in the administration of criminal justice. It is a well-established and inviolable tradition of my office that the decision to appeal or not is quasi-judicial.

As a former Attorney General of England once stated: "The duty which the law throws upon the Attorney General in regard to putting the criminal law in motion is one of the most anxious and responsible which any man could well have thrown upon him. In discharging that duty, the Attorney General is exercising a function of an almost judicial nature."

This principle has guided me on a daily basis during my nine years as Attorney General of Ontario. It is fundamental that the exercise of my discretion in this case is made with a strict and sole regard to my public duties as chief law officer of the crown. In reaching my decision in this case, I have considered a number of factors and principles that I shall outline in more detail in a moment.

This decision has taken some time because of the need to give it the fullest legal analysis and consideration. It has also been necessary to have transcribed hundreds of pages of trial notes, submissions and the charge to the jury by the learned trial judge. It took some time to have this material transcribed and reproduced. My senior criminal law advisers have given the matter the fullest legal analysis in accordance with the procedures governing the consideration of possible crown appeals.

The decision to appeal or not to appeal, or to prosecute or not to prosecute further in this case, has nothing to do with the merits of Canada's abortion laws or with anyone's personal view on the issue of abortion. The issue of abortion is one that engenders strong emotion. It deeply divides the community and it deeply divides many families.

My private views on this subject, and the views of my senior crown law officers who have advised me with respect to the legal issues in this case, are simply irrelevant. I am sure if I were to inquire of my crown law officers as to their personal views on this issue, I would receive the same strongly varied and divergent cross-section of personal views that are widely held in the community.

Of course, I have not asked them their views nor do I intend to; however, I think it is significant that the legal advice I have received is unanimous on the part of my legal advisers. While the issue here has nothing to do with personal convictions on the issue of abortion, it has everything to do with the proper administration of criminal justice and the consideration of legal values and the public interest in the proper administration of criminal justice.

The question of access to abortion and the question of personal decisions around abortion are questions which have brought great anguish to many women and many members of the healing professions in particular. These questions have touched many individuals and many families very deeply. I must respect the strongly and sincerely held views of those who argue for the right to choice and for an increase in access to legal abortion services. I must likewise respect the strongly and sincerely held views of those who oppose abortion on grounds of conscience.

2:10 p.m.

The views on either side of this controversy can have no influence on the legal decision I must make. My duty is to consider the legal issues involved and the public interest in the administration of criminal justice without reference to the merits of either side of the abortion controversy. Those are matters to be considered by the Parliament of Canada. These matters cannot properly influence or play any part in the decision I must make with respect to the existing criminal law in force in Ontario at this time.

One of the most difficult and troubling problems in this case is the importance of the jury system and the significance of the jury's verdict of acquittal in criminal cases generally and in this particular case.

As a trial lawyer for 20 years of my life, I have deep respect for the jury system. As Attorney General, that respect has been deepened by a growing appreciation of the crucial role the jury system plays as a guardian between the state and the individual. The jury system protects the public by convicting in cases where jurors are satisfied on the evidence beyond a reasonable doubt that the accused has committed an offence. The jury system protects the individual accused by acquitting if the jurors have reasonable doubt that the accused has committed an offence.

The conduct of this case raises fundamental issues about the role of the jury in our system of criminal justice. The accused readily agreed under oath that he had decided to break the law. The jury acquitted him after being urged by the defence to use its verdict as a vehicle for the purpose of amending or nullifying the law enacted by Parliament.

It has been widely suggested that this case means juries have the right to turn away from the law, to decide that the law is wrong and to uphold a civil responsibility to defy a law that one considers to be harmful.

If this verdict stands unchallenged, it would be open to defence counsel in any case to urge the jury that the law was wrong and that the jury should disregard the law. It might also be open to crown counsel to suggest that a jury ignore traditional legal safeguards enjoyed by accused persons in order to secure a conviction. This has profound implications for our jury system and for the enforcement of the criminal law generally.

This question of the jury's right to judge the law and to strike down a law it dislikes is a question which, to use the words of one of the senior crown law officers in my ministry, goes to the root of our system of justice with ramifications far beyond this case. As such, it raises a question of law of great significance.

This case raises another serious question of law of great public importance: the question of the precise legal scope and application of the defence of necessity. In this case, the accused readily admitted that he broke the law, but he also relied upon the defence of necessity to relieve him of the consequences of his actions.

The defence of necessity was recently considered by five judges of the Supreme Court of Canada in the case of Regina versus Perka, decided on October 11, 1984. The Chief Justice of Canada, the Honourable Brian Dickson, reviewed the state of the law as to the existence of such a legal defence. I quote from his judgement:

"In Canada, the existence and the extent of a general defence of necessity was discussed by this court in Morgentaler v. the Queen, 1976, 1 SCR 616. As to whether or not the defence exists at all, I had occasion to say at page 678: 'On the authorities it is manifestly difficult to be categorical and state that there is a law of necessity, paramount over other laws, relieving obedience from the letter of the law. If such a principle exists, it can go no further than to justify noncompliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible.'"

The present Chief Justice went on to write, "Subsequent to Morgentaler, the courts appear to have assumed that a defence of necessity does exist in Canada."

After discussing the subsequent proceedings in Regina versus Morgentaler and reviewing later Canadian decisions, Chief Justice Dickson said:

"In Morgentaler ... I characterized necessity as an 'ill-defined and elusive concept.' Despite the apparently growing consensus as to the existence of a defence of necessity, that statement is equally true today."

Although the existence of the defence of necessity was clarified in Perka, its exact scope and application are still in controversy.

These two questions of law -- the role of the jury and the exact scope and application of the defence of necessity -- have implications, of course, far beyond the law of abortion. Indeed, they have profound implications for our criminal law as a whole.

In my view, the public interest in the administration of criminal justice requires that these matters of legal controversy be clarified through the scrutiny of an appellate court. I have therefore accepted the advice of my criminal law advisers that a crown appeal to the Court of Appeal for Ontario should be commenced pursuant to the provisions of clause 605(1)(a) of the Criminal Code of Canada upon the following grounds of appeal involving questions of law alone:

1. The learned trial judge erred in law in leaving the defence of necessity to the jury in that there was no evidence of one or more of the constituent legal elements of the defence of necessity.

2. The learned trial judge erred in law in leaving the defence of necessity to the jury in the absence of sufficient evidence to convey a sense of reality to that defence.

3. Alternatively, if there was sufficient evidence to merit an instruction on the defence of necessity -- and I should say that I am quoting directly from our notice of appeal -- the learned trial judge erred in law by (1) leaving to the jury for its consideration in assessing the applicability of the defence of necessity matters that were irrelevant to that defence, and (2) failing to instruct the jury on other matters that were relevant to the applicability of that defence.

4. The judge erred in law in permitting defence counsel to address the jury in a manner that, inter alia, (1) was inflammatory and calculated to cause the jury to disregard its oath in rendering its verdict; (2) urged the jury to render a verdict based on its assessment of whether the law was a "good" law or a "bad" law; (3) invited the jury to find that the conduct of the respondents was justified based upon an assessment of the constitutional validity of the legislation; (4) urged the jury to render a verdict based on its assessment of the consequences of its verdict and the social desirability of those consequences; (5) invited the jury to consider irrelevant matters, such as the attitudes and concerns of politicians; and (6) invited the jury to use its verdict to make a political statement to governmental authorities and agencies.

5. The learned trial judge further erred in law in his instructions to the jury by failing to instruct the jury fully, forcefully and specifically concerning each of the improper submissions made by counsel for the respondents to the jury. The trial judge did not direct the jury in a manner that could ensure that the jury would disabuse its mind of improper submissions made by counsel for the respondents and decide the case according to its oath.

It should be noted further at this time that the crown appeal will give the defence an opportunity it would not otherwise have had to challenge the Criminal Code abortion provisions in the Court of Appeal on constitutional grounds. The launching of the crown appeal automatically gives the defence the right to raise all its constitutional and Charter of Rights arguments, which were dismissed by the learned trial judge before the commencement of the trial. The crown appeal thus affords to the defendant one of the very things he sought by his challenge to the law: that is, an opportunity to challenge in an authoritative legal tribunal the constitutional validity of the laws with which he disagreed.

2:20 p.m.

Honourable members will undoubtedly ask whether new charges will be laid pending the disposition of the matter in the Ontario Court of Appeal. In that context, I repeat what I said in the standing committee on administration of justice of this assembly on December 9, 1982. The full text is attached to this statement as an appendix. In part, I stated at that time:

"Ontario's policy on the prosecution of criminal offences has always been to permit any police officer or any other person to lay any charge he or she has reasonable and probable grounds to believe has been committed. Neither the Attorney General nor his agents attempt to control or prevent this basic right. If a justice of the peace, exercising unfettered discretion, decides that there is sufficient evidence for the charge to proceed, it is then and only then that the Attorney General, acting in an open court, may intervene to stop the prosecution."

Police officers are entitled to seek and receive advice from the crown law officers in exercising their discretion and judgement with respect to the laying of charges. I assume that advice will be sought and given. I cannot speculate at this time on what the advice will be; it will depend on the evidence and the precise factual situation put before the crown law officers for their consideration and advice.

In my view, having regard to the particular circumstances of this individual case, the public interest would not be served by proceeding with a trial against the same accused on substantially the same evidence until the disputed legal issues have been resolved by the Ontario Court of Appeal.

There are some cases in which it might be appropriate to proceed with another trial pending the resolution of an appeal. This is not one of those cases.

As the appeals are being taken because of the legal dispute about the application of the defence of necessity and the role of the jury, I cannot think any useful purpose would be served by proceeding with a virtually identical trial as long as the law on the crucial issues remains seriously disputed. The law must be clarified before the accused are again put upon their trial in this province on substantially the same evidence.

To proceed to another trial without first clarifying the law would also create an extremely difficult legal dilemma for the trial judge, faced with the very same unresolved legal dispute that is before a higher court for its decision. It could be regarded under the unique circumstances of this case as a demonstration of disrespect for the jury system and for our system of orderly resolution in appellate courts of disputed legal issues.

My responsibility as Attorney General relates primarily to the conduct and supervision of proceedings after they are initiated by others.

Police officers are entitled to the legal advice of my crown law officers in considering the legal and public interest implications of a contemplated prosecution.

I have, as stated above, however, no power to prevent a police officer or, indeed, any citizen from proceeding before a justice of the peace to seek the commencement of a criminal prosecution, so long as it is supported by reasonable and probable grounds. My function in ensuring the provision of appropriate legal advice to the police and in supervising the conduct of prosecutions is quite different from the function of the police officer or any other citizen who decides on his own personal sworn oath to accept the responsibility for commencing a criminal prosecution.

May I conclude by thanking the members of this assembly for their attention. My accountability to them for the public discharge of my duties as Attorney General has required me to inform them of my decision and my reasons for that decision. Those reasons include, most important, my duty to safeguard the public interest in the administration of criminal justice. It is that duty above all that has guided me and my crown law officers in this difficult decision.

The legal implications of this case go far beyond the difficult, complex and emotional issue of abortion. They go to the very heart of our system of criminal justice and, therefore, deserve the scrutiny of the highest court of law in this province.

The decision to initiate a crown appeal is not related to the abortion controversy. The decision not to proceed to trial pending the appeal against the same accused on substantially the same evidence is not related to the abortion controversy. Both decisions are unrelated to the very controversial issue of abortion, but they have everything to do with the integrity of the administration of criminal justice. All our individual freedoms and liberties depend ultimately upon the rule of law and the integrity of the administration of criminal justice.

In protecting the public interest in the administration of criminal justice, attorneys general and crown law officers are called upon from time to time to make difficult decisions. In making those decisions, they cannot avoid their legal duty, no matter how difficult or unpopular or controversial the discharge of their responsibilities may be. This, indeed, is one of those difficult and controversial decisions.

I fully appreciate the controversy that will surround this decision, but that consideration has not and will not deter me from the path to which the law has drawn me in discharging my duty as Attorney General to safeguard the public interest in the administration of criminal justice.

ORAL QUESTIONS

MORGENTALER TRIAL

Mr. Peterson: Mr. Speaker, I have a question for the Attorney General with respect to his statement. While I understand and appreciate that he has made his decision on narrow legal grounds, the role of the jury, the charge to the jury, the speech to the jury and the defence of necessity, the Attorney General will be the first to recognize he has gone through this dilemma because of the way the federal law is currently written and the fact that the enforceability of that law is, as it is, somewhat ambiguous.

Has the Attorney General had any discussions in his capacity as the chief law officer of the crown with the federal Minister of Justice with respect to a review of the Criminal Code, of the federal law, so the will of Parliament will be very clear?

Hon. Mr. McMurtry: No, I have not, Mr. Speaker, for a very fundamental reason. As Attorney General of this province, my responsibility is to the law as it is laid down by the Parliament of Canada, particularly when there is an issue of public importance before the courts. For me to engage in discussions with the federal Attorney General and Minister of Justice on the appropriateness of the law, at the very time when I have the responsibility for administering that law, would, in my respectful view, be inappropriate.

Mr. Peterson: With great respect to the Attorney General, I have heard him on many occasions speak out about federal matters and about matters in the Criminal Code of Canada. He may have changed his mind in this respect, but certainly it does not conform to his previous practice.

Does he not feel as the chief law officer of the crown of this province, as the enforcer, as they say, that he wants to have discussions with his federal colleague, in the fullness of time, so the will of Parliament will be reflected by juries in this country? Surely he wants to clear that up so he will not continually go through the kind of dilemma he has had to go through in the last little while.

2:30 p.m.

Hon. Mr. McMurtry: Understandably from time to time, it is very appropriate for the Attorney General of any province to discuss the law, particularly the law as laid down in the Criminal Code, with the Minister of Justice for Canada. Obviously, the timing of any such discussions has to be governed to some extent by matters that are currently before the court.

I repeat what I said earlier. While discussions may well occur with the Minister of Justice at some point in the future, the time of which it would be difficult to speculate about -- and I cannot speculate whether those discussions will even take place or not -- it would be inappropriate and rather confusing to the public if the Attorney General of a province were to be engaged in active discussion with the Minister of Justice in relation to the appropriateness of particular laws that are very much the subject of issues before the courts of our province.

Mr. Sweeney: Mr. Speaker, I have a question of the Attorney General for purposes of clarification. I understood the minister to say in his statement that the defendant in this case clearly admitted under oath that he had broken the federal law. It is also my understanding from the federal Minister of Justice that the federal law has not been changed and that there are no plans to change it, at least in the near future.

Did I correctly understand the Attorney General to say if the same defendant goes out and breaks the law again it would be appropriate for the police of this province to so charge him, but, and this is where the clarification is necessary, did I understand him to say he was not sure whether it would be advisable that a trial take place after that charge was laid? Is that the distinction the Attorney General was making or did I miss something?

Hon. Mr. McMurtry: Mr. Speaker, I appreciate that it was a lengthy statement and a number of issues were dealt with in that statement. In the statement I tried to make clear, amongst other things, two important issues in relation to what might or might not happen in the future.

I attempted, first, to the best of my ability to make it clear the decision to lay or not to lay a charge is not a decision of the Attorney General or his ministry. Crown law officers are, of course, available to police officers, to law enforcement officers who may or may not seek their advice. In most circumstances, the decision to lay or not to lay a charge must be made by a police officer acting or not acting on the basis of legal advice obtained by him or her, perhaps from a local crown attorney.

However, an Attorney General does not direct that charges either be laid or not be laid. Indeed, an ordinary citizen has access to the criminal justice process through laying a charge before a justice of the peace on the balance of reasonable and probable grounds.

The distinction I attempted to make is that, while the Attorney General and his ministry are not involved in the laying of a charge, the decision whether or not to proceed with any charge that might be laid is within the responsibility of our ministry.

In view of the great public controversy that surrounds this issue, and given what Dr. Morgentaler himself has stated about his future intentions, a great many questions have already been asked about what would happen if Dr. Morgentaler were to follow through with the intentions he stated very frankly to the public of this country.

What I attempted to make clear in the statement was that in the event a charge was laid -- and that decision would not be mine -- the charge would not be proceeded with and there would not be another trial in this matter until the outstanding legal issues were clarified by the Court of Appeal.

I hope the statement outlines very good reasons why it would be unwise in the public interest to proceed with another trial while these important legal issues are pending in the Court of Appeal.

PHARMACEUTICAL INDUSTRY

Mr. Elston: Mr. Speaker, I have a question for the Minister of Health, who, as becomes more obvious all the timse, is unable to see eye to eye with his colleague the Minister of Industry and Trade (Mr. F. S. Miller) with respect to fiscal and financial restraint and management.

About a year ago the Leader of the Opposition (Mr. Peterson) asked a question of the then acting Minister of Health with respect to the overpayments under the Ontario drug benefit plan. The member for Scarborough North (Mr. Wells), the acting minister, said, "I think my friend is perhaps exaggerating a little," when the suggestion was made that overpayments were $10 million.

The auditor's report says the overpayments are conservatively estimated at $14.5 million for a one-year period. Can the minister tell us why he and his predecessors, the current Treasurer and Minister of Economics (Mr. Grossman) and the current Minister of Agriculture and Food (Mr. Timbrell), would allow this gross overpayment of funds to one particular sector in this province without taking adequate steps to ensure that economies were put in place to save the public dollars of this province?

Hon. Mr. Norton: Mr. Speaker, first of all, I think the implication in the question that anyone would knowingly permit that type of thing to occur is a little unfair.

In fact, the honourable member will probably recall that my immediate predecessor began to take action a year ago this past May or June, if I am not mistaken, to address a specific situation that came to his attention relating to excessive prices being assigned to a particular drug product. When I became aware in August or September a year ago, shortly after coming to the ministry, that this might well apply to other products as well, I immediately began to meet with representatives of the pharmaceutical industry in an effort to sort out what was a very complicated situation. I made very clear my intention to address the problem I perceived to exist.

During the course of the fall a year ago, it became evident to me the problem was not going to be resolved by way of bilateral discussions, that the perception of the problem was so different on the two sides that it was going to require the efforts of some third party to provide us with another perspective.

It was at that point I undertook to establish an inquiry into the matter under Commissioner John Gordon of Queen's University. As the member may be aware, it has now been completed and I have received a report on it. However, in the meantime, some 30 pharmaceutical products have been reduced in price as a result of our efforts.

Mr. Elston: The Minister of Health will probably know the auditor has reviewed some 30 high-volume products that are listed both in the Ontario formulary and in the Saskatchewan formulary and discovered that a full 80 per cent of those listed in the Saskatchewan formulary were under the price of the Ontario drugs as listed in that price schedule. He will also understand that a good number of those drugs were listed at prices twice as high as those listed in the Saskatchewan formulary.

Mr. Speaker: Question, please.

2:40 p.m.

Mr. Elston: Since I was told by the auditor and his staff during our lockup that the ministry knew more than two years ago this problem existed, can the minister tell us how he went on for such a long time sending excess public funds into one element of the economy of Ontario while whispering in the ear of all hospitals and others in the health care field to be responsible in the type of expenditures they make?

Hon. Mr. Norton: Mr. Speaker, the honourable member is quite correct in suggesting there were prices quoted by pharmaceutical manufacturers to other provinces that differed from the prices quoted to Ontario. I can assure him that did not go without notice on my part.

Mr. Elston: Does the minister mean he is so weak that --

Hon. Mr. Norton: Is the member interested in hearing the answer to this very difficult issue? It is a very serious matter.

Mr. Van Home: The minister should get on with it then.

Mr. Speaker: Order. Proceed, please.

Hon. Mr. Norton: It is such a complicated issue to address.

Mr. Elston: We should have another minister, then.

Hon. Mr. Norton: Will the member please listen for one moment?

It is not simply a matter of taking arbitrary unilateral action. For example, I very seriously contemplated switching the system in Ontario completely to calling for tender prices or quotations on these products. Being such a large part of the Canadian market, the difficulty we face in that respect is that it would have the effect of putting a number of companies out of business.

That may not be a serious concern for the member. The serious concern for me was that it would have eliminated competition in the Canadian market, which probably would have put us into a much more serious situation with respect to drug pricing than the one we face now. I am continuing to address the problem.

Mr. Philip: Mr. Speaker, does the minister not agree the report of the Provincial Auditor clearly indicates there is not the competition he has indicated? Through the minister's bumbling, he has managed to give $14 million to the drug industry that should have gone into health care. Is the minister prepared to implement the recommendations of the auditor that would correct this problem?

Hon. Mr. Norton: Mr. Speaker, the honourable member obviously knows not of what he speaks when he says there is no competition in the market. I think there is too little. If he understands the effect on the market of, for example, the generic manufacturers as opposed to the originating manufacturers of these products, he will understand that the effect has been to provide for significant activity in the area of competitive pricing.

It has not gone far enough, in my opinion. We ought to be benefiting more from that. At the moment I am not going to make any comment with respect to the specific recommendations that may be forthcoming from the auditor. I did not have the benefit of being briefed on the contents away from the public eye, as some of the members opposite did.

I can assure the member the auditor's recommendations will be taken into consideration in conjunction with the much more detailed work that has already been undertaken by our ministry through the agency of a commissioner to examine this issue.

Mr. Elston: Mr. Speaker, I understand the minister has entered into some very difficult negotiations with the drug industry. It might serve us well to read the auditor's report and find out that at the same time as he lowered the price for some of the dispensed drugs, he also gave the pharmacists of Ontario an increase of 35 cents, I presume as an incentive to go along with the renegotiated value.

What the minister did was give about $7.9 million of estimated savings back to the pharmaceutical industry. Can he tell us on what basis he was able to give an extra 35 cents to the pharmacists with respect to their dispensing fee? Why did he agree to that increase when the auditor indicates he could have been saving well over $14 million?

Hon. Mr. Norton: Mr. Speaker, I can assure the honourable member the answer to that is a straightforward one. Concern had always been expressed on the part of the negotiators for the pharmacists -- not the pharmaceutical firms -- that the dispensing fee in this province was, on the face of it, lower than the dispensing fee to pharmacists in other provinces in Canada.

The member shakes his head no, but if he had seen the dispensing fees quoted, his head would have been going this way instead of that way. Maybe he is not sure which way it should be going.

Mr. Speaker: Back to the question, please.

Hon. Mr. Norton: In any event, recognizing there were differences in the dispensing fees quoted, and recognizing the steps we were taking to reduce the prices of 30 high-volume, multiple-source drugs, it was agreed without prejudice, pending the outcome of the report of the commissioner, we would raise our dispensing fee to approximately the average that is paid to pharmacists in other parts of this country --

Interjections.

Hon. Mr. Norton: Listen. Is the member interested in hearing the rest of this? It is important, I think.

Mr. Speaker: Order. Thank you, Minister.

MORGENTALER TRIAL

Mr. Rae: Mr. Speaker, I have a question for the Attorney General concerning the statement he made to the House today. I want to say to the Attorney General in preface that I think he has made a mistake. I think that in the administration of justice in this province it is a decision he is going to regret.

Mr. Speaker: Question, please.

Mr. Rae: That having been said, the Attorney General has set out a number of grounds on which he is appealing. The first has to do with the role of the jury in the criminal justice system. Will the Attorney General look at pages 6 and 7 of his statement? He seems to imply clearly in this statement that he and his senior crown law officers know why the jury chose to acquit the doctors who were charged with the particular offence. He said, "The jury acquitted him after being urged by the defence to use its verdict as a vehicle for the purpose of amending or nullifying the law enacted by Parliament."

Is it not true that several other grounds for acquittal were put to the jury, in particular the defence of necessity? Is it not true that those grounds were specifically put to the jury by the defence counsel? Is it not true that this is a specific ground upon which the jury could have acquitted Dr. Morgentaler, that the Attorney General has no idea why the jury chose to make its decision and that whatever arguments may have been put to it by defence counsel are really irrelevant? What is relevant is the counsel of law put to it by the judge, to which I have not seen a challenge from the Attorney General.

How is it that the Attorney General seems to know why the jury reached the decision it reached?

Hon. Mr. McMurtry: Mr. Speaker, with all respect to the leader of the New Democratic Party, it is not correct in law for him to say that what counsel says to the jury is irrelevant. What counsel says to the jury in any particular case can be a ground for appeal.

Obviously, counsel has a very vital role to play in any trial, and particularly in any jury trial. What counsel says to a jury is not irrelevant.

Obviously, at the same time we recognize that considerable latitude is recognized in relation to what counsel can say to the jury. For a counsel's address to form the basis of an appeal, clearly it must be the view of our law officers that the submissions to the jury go far beyond the boundaries, which are generally fairly wide; but what counsel can say to a jury and what counsel did in fact say to the jury in this case are indeed very relevant and a major ground of appeal.

2:50 p.m.

If the leader of the New Democratic Party reads that part of the statement relating to the notice of appeal and the grounds we have repeated from our notice of appeal, he will note we are also taking objection to some of the judge's instructions to the jury.

Mr. Rae: One could readily argue that the statements made by the prosecutor to the jury in the case, saying something to the effect that there would be anarchy in the streets if the jury did not uphold the conviction, could be described as being inflammatory as much as anything else that was said to the jury.

Mr. Speaker: Question, please.

Mr. Rae: Perhaps I may refer to the second ground on which the Attorney General has indicated his appeal, the defence of necessity. We are now into the fourth time around. I am sure the Attorney General is aware of the facts of another trial concerning Dr. Morgentaler, in Quebec, the second time around.

Is it not true the Court of Appeal of Quebec found in that prosecution and trial that there was sufficient evidence with respect to the defence of necessity and the court took the view that the defence of necessity existed in that case and that it was permissible to go to the jury with that defence? Is it the view of the Attorney General, and will it be the view of the crown, that the defence of necessity could not have been put forward by defence counsel in this instance, the fourth time around?

Hon. Mr. McMurtry: The counsel for my ministry will put the argument in his or her own words, but we recognize that a defence of necessity does exist in law in Canada although, as the Chief Justice has stated, there are some clear problems in relation to that defence.

In so far as this case is concerned, our position is simply that given the evidence in its totality, and assuming the jury accepted the total evidence introduced or adduced by the defence with respect to the defence of necessity, that evidence in its totality did not meet the legal standards that have been laid down by our courts as to what can constitute a defence of necessity.

Mr. Spensieri: Mr. Speaker, will the Attorney General enlighten us on this side as to why, having made the statement he has, he would fetter his discretion as to prosecution pending the appeal in a manner that only can be calculated to encourage activity of the type that has been charged?

Hon. Mr. McMurtry: Mr. Speaker, what the honourable member opposite states is quite wrong and inaccurate. I urge him to read my statement a little more carefully.

Mr. Rae: On that point, we had a statement from the Solicitor General (Mr. G. W. Taylor) over the weekend stating that in his view the police would have no choice but to lay charges. That is a view from one of the law officers of the crown in this assembly. Is the statement of the Solicitor General the policy of the government? Is it the position of the government of Ontario?

In relation to that question, if charges are laid, does this not mean that women who are involved in having abortions could be charged by the police in these circumstances? Is it not possible that equipment again will be seized by the police? Is it not possible that this matter again will be decided by the administrative activities of the police rather than by the courts and the Court of Appeal, which seems to be the view the Attorney General is advancing?

Hon. Mr. McMurtry: I did not hear what the Solicitor General stated on the weekend. If the member wishes clarification, he should seek it from him. I want to make this very clear. With respect, I urge the member to read my statement carefully. The decision to lay or not to lay a charge will not be the decision of either the Solicitor General or the Attorney General.

NORTH YORK DEVELOPMENT

Mr. McClellan: Mr. Speaker, in the absence of the Premier (Mr. Davis), I have a question of the Deputy Premier with respect to the cabinet's order in council of October 26, 1984, wherein the cabinet approved the official plan amendment and zoning bylaw for the Ramparts civic centre development.

Has the Deputy Premier had the opportunity to read the editorial in this morning's Globe and Mail, which concludes with a very accurate summary paragraph? It reads in part, referring to the Minister of Education (Miss Stephenson): "... her decision to involve herself in the appeal process was misguided; her current refusal to concede that she made a mistake is just not good enough. Without questioning Dr. Stephenson's honesty, we find her failure to declare a possible conflict in this matter unacceptable."

What action does the Deputy Premier and the government intend to take to resolve the question of conflict of interest in this case?

Hon. Mr. Welch: Mr. Speaker, it was made quite clear yesterday that there is no conflict of interest. The Minister of Education made that point quite clear in a very detailed answer here. She did not involve herself in the appeal process and, as far as we are concerned, the matter was clearly dealt with yesterday in response to all the questions, that were quite detailed, by way of the responses the honourable member has already received.

Mr. McClellan: In the same edition of the Globe and Mail is a statement from North York's chief planner, Mel Mathews, saying the development project, together with the new subway station, "will accelerate developers' interest in that (Dr. Stephenson's) block and other property blocks."

Is the Deputy Premier telling us in this assembly that he shares, if I may put it this way, the perceptual handicap of the Minister of Education with respect to an obvious conflict of interest situation, in which she made representation to cabinet colleagues to approve a project, the outcome of which, according to the chief planner of North York, is to accelerate developers' interest in her property?

Hon. Mr. Welch: The Deputy Premier does not preclude anyone, including directors of planning, from speculating about whatever they want to speculate about. I am standing in my place in this Legislative Assembly saying that the Minister of Education is a woman of conscience and integrity and there is absolutely no conflict of interest. That should be quite clear to the member on simply reviewing the facts of this case.

Mr. Peterson: Mr. Speaker, the Deputy Premier has been around here a long time. He has seen the conflict of interest guidelines that have been put forward in the Manual of Administration for public servants. They talk about not only conflicts of interest but also perceived conflicts of interest, wherein the penalty is dismissal in certain circumstances. He has also seen the Premier's own guidelines with respect to cabinet behaviour.

What is the Deputy Premier's interpretation of this situation? What does he feel is the appropriate measure of conflict of interest? What are the rules under which the government operates over there?

Hon. Mr. Welch: Mr. Speaker, back in 1972 certain guidelines were laid down as far as members of the executive council were concerned. A very important decision was taken, as far as this administration and this country were concerned, governing the activity of members of the executive council outside the executive council.

As members of the executive council, we presume to deal with all these matters, as I have already mentioned, as matters of conscience and principle. We have had all these matters reviewed. There is no conflict of interest. This minister has acted quite responsibly.

Why does the honourable member continue to ask questions along that line? As far as I am concerned, there is no evidence of a member of the executive council acting in any way in conflict with the public interest.

3 p.m.

Mr. McClellan: The Minister of Education has a piece of property, the value of which went up as a result of a cabinet decision in which she participated.

I want to ask the Deputy Premier a question with respect to the guidelines on conflict of interest promulgated by the Premier on September 14, 1972. The guidelines read, "Wherever a public servant considers that he could be involved in a conflict of interest and that he might derive personal benefit from a matter which in the course of his duties as a public servant he is in a position to influence, he shall disclose the situation." The guidelines go on to say, "Failure to disclose leads to dismissal."

Mr. Speaker: Question, please.

Mr. McClellan: Is it the position of the Deputy Premier that this conflict of interest guideline, which is binding on public servants, is not binding on members of the cabinet? Will he relay to the Premier that there is a need for the Premier himself to review this matter and report to the House on whether his own conflict of interest guidelines have been violated in this instance?

Hon. Mr. Welch: Mr. Speaker, there has been no violation of any conflict of interest guidelines. I have repeated this answer to the main question, the supplementary question and another supplementary question. We are talking about a woman of integrity and conscience and there is no conflict of interest.

HORTICULTURAL PRODUCTS LABORATORY

Mr. Epp: Mr. Speaker, the Minister of Agriculture and Food is no doubt aware of the report of the Provincial Auditor today that speaks about the construction of the horticultural products laboratory, which had capital construction approval of $870,000. The guidelines by Management Board stipulate that any further construction must also have the approval of Management Board.

Since the total cost was double the $870,000 originally approved by Management Board, why was the approval not obtained from Management Board rather than fragmenting the contracts?

Hon. Mr. Timbrell: Mr. Speaker. the original project was announced in the fall of 1981 by the Premier (Mr. Davis). Shortly afterwards, details were announced by the member for Lambton (Mr. Henderson), the then Minister of Agriculture and Food.

I take it the issue in the auditor's report is whether there was approval. Inasmuch as projects of this size are normally carried out by the Ministry of Government Services, it would appear that strictly speaking there was not a Management Board minute, but the details of it were well known to Management Board. There were meetings with the Management Board staff. The Premier's announcement, the minister's announcement and the inclusion of funds for the project in the subsequent estimates of the Ministry of Agriculture and Food would seem to have made it very evident the project was going to proceed.

Mr. Epp: The minister is aware the contract was fragmented and there is no clear evidence to show approval was obtained from Management Board. Why is the minister using the back-door approach of fragmenting the contracts in order to deceive the people of Ontario?

Hon. Mr. Timbrell: When the honourable member withdraws that word, I will answer the question.

Mr. Epp: Why is the Minister of Agriculture and Food not clearly giving all the information to the people of Ontario, particularly in view of the fact that the public is being --

Mr. Speaker: With all respect, the word "deceive" was asked to be withdrawn, not that the honourable member ask a new question.

Mr. Epp: I would be glad to withdraw it in the hope the minister will then clearly answer the question of why the information was not given to the public of Ontario.

Hon. Mr. Timbrell: I just finished indicating that the information was given in three separate ways. An announcement was made by the Premier on November 6, 1981; an announcement was made by the then Minister of Agriculture and Food on December 14, 1981; and an inclusion was made in the printed estimates of our ministry for 1982-83 of a line item for storage research of $1.1 million.

Mr. Wildman: Mr. Speaker, does the minister not understand we are talking about contracts and costs of contracts, not just announcements of projects by cabinet ministers or by the Premier?

Does he not realize it specifically states in the Manual of Administration that all capital expenditures for construction contracts costing more than $400,000 must have specific approval of Management Board of Cabinet?

In this situation, as well as in the situation with regard to the energy-efficient greenhouses, he had projects, even when they were estimated to cost more than $400,000, that were never approved specifically by Management Board.

Mr. Speaker: Question, please.

Mr. Wildman: What is the minister doing to ensure that he no longer flouts the Manual of Administration?

Hon. Mr. Timbrell: The original estimate for this project was less than $400,000.

Mr. Wildman: It was $870,000.

Mr. Speaker: Order.

Hon. Mr. Timbrell: The member should not forget that this was done in two phases, the second phase having come about as a result of the willingness of the Ministry of Energy to participate in a further phase. The original estimate for the first set of five houses was less than $400,000. It is true the costs came in in excess of that, but I am talking about the estimate, on the basis of which we did not have to go to Management Board.

These are unique greenhouses. It is the first time this type of project has been carried out, and the estimate that was prepared to the best of the ability of staff of our ministry and of the Ministry of Government Services was less than $400,000.

Mr. Speaker: New question.

Mr. Riddell: Mr. Speaker, I am here.

Mr. Speaker: The member for Algoma (Mr. Wildman) is here too.

ADHERENCE TO MANUAL OF ADMINISTRATION

Mr. Wildman: Mr. Speaker, in the absence of his colleague the Chairman of Management Board (Mr. McCague), can the Deputy Premier explain what measures the executive council is taking to ensure the provisions of the Manual of Administration with regard to the approval of contracts are being adhered to by the ministers of the cabinet? What is the ministry going to do to ensure its own guidelines are not flouted by this government?

Hon. Mr. Welch: Mr. Speaker, it seems to me the Chairman of Management Board, in replying to this question over a period of time, has indicated that a memorandum was sent to all members of the executive council drawing attention to the Manual of Administration to ensure adherence to the statements set out therein.

If memory serves me correctly, the Price Waterhouse and Canada Consulting Group study on accountability is at present under way. From that, no doubt we may learn what other steps need to be taken to ensure the principles of accountability and adherence to whatever principles are necessary to ensure the same. I think there has been a general positive approach to this over a period of time on the basis of responses that have been given from time to time by my colleague the Chairman of Management Board.

Mr. Philip: Mr. Speaker, is the Deputy Premier not aware that the Provincial Auditor has been highly critical of the narrow and inadequate interpretation of the Ontario Manual of Administration by this government?

That interpretation has led to the point where a former Minister of Industry and Trade could obtain speechwriting without any kind of tendering or declaration of objectives, where the present Minister of Industry and Trade (Mr. F. S. Miller) can have his offices redecorated in a way completely in violation of the spirit of the Manual of Administration and where that great source of Tory patronage, the Liquor Control Board of Ontario, can hire consultants without tender or competition to do work that is already being done by the Ministry of Government Services.

Mr. Speaker: Question, please.

Mr. Philip: Is the Deputy Premier prepared to give an assurance to the House that the recommendations of the auditor regarding the expansion and clarification of the Manual of Administration will be carried out and that this government will police the ministries to see that the manual is adhered to, instead of squandering millions of dollars of taxpayers' money?

3:10 p.m.

Hon. Mr. Welch: Mr. Speaker, there is no question one has to review procedures from time to time and over a period of time. One of the benefits of the auditor's report is to draw our attention to these matters. I have already mentioned that my colleague the Chairman of Management Board indicated to the House some months ago the establishment of the Price Waterhouse and Canada Consulting Group study. The auditor's report will surely be considered by the members of that study group.

At a time of the tabling of an auditor's report, I suppose it is always of some advantage to the opposition to single out exceptions. The auditor himself is very fair to point out in his report that this is a report of exceptions and that there is not a lot of time spent on all the positive things that go on or on the many areas where there are no problems.

To quote from his report, and I am sure the member would want me to say this, to have a balanced perspective on the matter: "Overall, we found that the areas audited during the past year were administered in a generally satisfactory manner ... . We are pleased to report that we received all the information and explanations required in carrying on the work of the office."

Having said that, he points out there is still some work to be done. We acknowledge that. That is why the study is in place, and we hope we all benefit from that type of objective review.

Mr. Elston: Mr. Speaker, let me be positive for a moment. A statement about which the auditor is positive is that the Ministry of Natural Resources is in continuous use of consultants by its development section, and that is contrary to the Ontario Manual of Administration.

Mr. Speaker: Question, please.

Mr. Elston: Let me be positive again. The auditor says, as a positive statement of fact, that some $3 million has been spent on consultants at a time when the Ministry of Correctional Services also is spending $2.4 million on employees.

Mr. Speaker: Question, please.

Mr. Elston: Can the Deputy Premier tell me when he expects the Chairman of Management Board to come up with a final determination on this study, which has been scheduled for release since June 1984, was postponed to September, was later postponed to later in the fall, and now perhaps will not be available until some time in 1985? When will this take place so we can be clear that the expenditure of public funds is well monitored?

Hon. Mr. Welch: Mr. Speaker, there is a basic assumption that they are being well monitored. I go back to what the auditor himself says in his report. He says: "In many respects, therefore, this is a report by exception. Reporting in this manner may unduly emphasize deficiencies without giving credit for the many situations where no significant irregularities were observed." That puts it in balance and he is being fair in that regard.

There are some matters that he draws to the attention of the Legislature. The honourable member has been here long enough to know that this report goes to the standing committee on public accounts. The Legislature will have an opportunity to review this matter in some detail with officials of the ministries referred to, and the ministers. In the meantime, we will have the benefit of the other study.

I am not able to provide any specific date on which the report is expected, but I will discuss the matter with the Chairman of Management Board and if that information is available I will share it with the members of the House.

UNITED CO-OPERATIVES OF ONTARIO

Mr. Sheppard: Mr. Speaker, I have a question for the Minister of Agriculture and Food regarding the financial difficulties facing United Co-operatives of Ontario, which has received much attention in the media.

I believe I speak for many members of the House in saying the fate of this major farm co-operative is of interest to many of the constituencies as supplier of goods and services, employer, competitor and purchaser of farm products. What is the position of the government of Ontario with respect to the financial restructuring of UCO?

Hon. Mr. Timbrell: Mr. Speaker, I am aware of the concerns expressed by a number of individuals and organizations who are and have been for some time competitors of UCO. The member's question is quite timely in that recently, on November 29 and 30, the creditors of United Co-operatives of Ontario voted overwhelmingly in favour of the proposed plan of arrangement by which the debts of the cooperative are to be restructured.

Mr. Elston: Let there be no light.

Mr. Nixon: Dennis, this is an omen.

Hon. Mr. Timbrell: I beg your pardon.

Mr. Speaker: Never mind the interjections, please.

Hon. Mr. Timbrell: I should have stayed in the Ministry of Energy a little longer.

Mr. Nixon: Larry is smiling.

Mr. Speaker: Order.

Hon. Mr. Timbrell: This bodes well. As the honourable members know, going back over the course of the last six months or so the financial problems of UCO had been a matter for considerable public discussion and debate. We have expressed the view all along, subject to them meeting some fairly tough minimum criteria, that the co-operative could survive. The fact that the major creditors have all overwhelmingly accepted the plan of arrangement is quite heartening and suggests to me that it will no doubt, in a restructured fashion, carry on into the future.

Mr. Sheppard: What are the conditions of this government's assistance to UCO; and is the minister aware of the concerns raised by many small competitors about such assistance?

Hon. Mr. Timbrell: I am indeed aware of those concerns. In fact, members on all sides of the House have approached me about them during the course of the last six or seven months.

The conditions are fairly straightforward and are embodied in the plan of arrangement. The first is that the holders of debentures, most of whom are retired farmers or survivors of retired farmers, be moved into a secured position. At present they are totally unsecured.

The second condition is that UCO accept and commit itself to implementing a realistic business turnaround plan. That has been done. As members know, apropos of that UCO made certain changes in its administrative structure as recently as two or three weeks ago.

Third, I want to assure the honourable member that what I will be proposing to cabinet, which has been part of our negotiations with UCO, is that the financial assistance from the government of Ontario be interest bearing and on a recoverable basis. There are many in the community who, for whatever reason, have perpetuated, or in some cases I suspect have even begun, certain rumours that there were going to be outright grants or no-interest loans, that sort of thing. I think this has to be done on a proper, businesslike basis and I will be recommending an interest-bearing recoverable loan.

Mr. McGuigan: Mr. Speaker, in assessing the opposition to government support for UCO, is the minister aware that private businesses have traditionally opposed the principle of patronage rebate? They make the claim that because of the patronage rebate the co-ops have some tax advantage; but this is not true, because any private organization can make a rebate to its customers. For instance, if we make a purchase at a Canadian Tire store, we very often receive coupons that entitle us to a rebate.

Is the minister aware that this is a longstanding misconception on the part of private business?

Hon. Mr. Timbrell: Yes, Mr. Speaker.

Mr. Swart: Mr. Speaker, I may have missed it, but would the minister state categorically that $7.5 million is now available as a result of the refinancing plan from his government to UCO and, if he has the information, would he tell us whether the $7.5 million is also available from the federal government?

Further, in view of the grants and assurances that were given to Massey-Harris and to various other companies in this province that were in financial difficulty, would he not think his loan, if necessary, should be without interest? Does the farm organization not have as much right to government funds as these private corporations?

Hon. Mr. Timbrell: Mr. Speaker, I think the honourable member is at least a generation behind. Massey-Harris became Massey-Ferguson quite some time ago.

Hon. Mr. Ashe: He is just a little out of date.

Hon. Mr. Timbrell: Yes; a couple of generations -- just like his political philosophy, as a matter of fact.

I have already stated clearly my position with respect to the nature of the financial assistance. I cannot speak for the government of Canada. The member asked me to give him an absolute assurance the assistance from the government of Canada is there. I believe it will be. Obviously, the Minister of Agriculture of Canada is the one who will finally have to answer that.

3:20 p.m.

Our assistance is subject to two things. First, the Supreme Court of Ontario has to accept the plan of arrangement. Now that the major creditors haves accepted it, I would be very surprised, obviously, if the Supreme Court did not ratify it. After that, Ontario cabinet approval has to be gained, and I am very confident this will be the case as well, inasmuch as I have kept it completely apprised of all developments with respect to UCO for almost two years now.

TILE DRAINAGE

Mr. Riddell: Mr. Speaker, I have a question for the Minister of Agriculture and Food concerning this government's continuing neglect of eastern Ontario. The question refers to the increasing need for tile drainage loans to improve the agricultural potential in eastern Ontario.

I am sure the minister is aware that Russell township has experienced a shortfall of tile drainage loans of $70,640, an amount it has requested from the ministry.

Mr. Speaker: Question, please.

Mr. Riddell: Will the minister give this House an assurance that Russell township will receive that extra funding? Will the minister amend the program so that those loans can be granted?

Interjections.

Mr. Speaker: Order. Does the Minister of the Environment want to answer?

Mr. Breaugh: Have them ejected.

Mr. Speaker: No.

Mr. Riddell: It is obvious they are in the dark over there.

Mr. Speaker: Question, please.

Mr. Riddell: When the lights went out while the minister was answering the last question, it reminded me of this ministry's treatment of farmers and how it always keeps the farmers in the dark and feeds them a constant diet of horse manure.

Mr. Van Home: Will the minister in charge of horse manure please stand and answer the question.

Mr. Speaker: Order. Now for the question, please.

Mr. Riddell: Will the minister give this House the assurance that Russell township will get that extra funding? Will the minister amend the program so that those loans cover 75 per cent of the drainage costs rather than the present 60 per cent, since very few farmers can afford the extra money now that they are facing these very difficult times?

Hon. Mr. Timbrell: Mr. Speaker, as recently as about five days ago I had occasion to discuss the situation with the next MPP for Prescott-Russell, Mr. Gaston Patenaude. I assured him that because, to the best of my recollection, we have bought all the municipal tile drainage debentures offered up by eastern Ontario municipalities every year I have been in the ministry, I saw no reason that would not likely be the case again this year once the final reallocation is carried out.

As I recall, in the last reallocation for eastern Ontario, we gave those municipalities virtually all they had asked for. There are some, and I believe Russell township is one of them, that have gone higher in their requirements than what they had indicated to us at the last reallocation.

Mr. Riddell: Can the minister tell us why he has never acted on the promise, as announced during the 1981 provincial election campaign, to establish an acreage improvement fund to upgrade one million acres of northern and eastern Ontario land into high-quality farm land? Just where is that fund?

In view of the fact the resolution introduced by my colleague the member for Essex North (Mr. Ruston) last year called for the immediate allocation by the government of sufficient moneys to meet all the needs of Ontario farm tile drainage loans --

Mr. Speaker: Question, please.

Mr. Riddell: -- and that the maximum loan assistance be increased to cover 75 per cent of the work, and this resolution was supported unanimously -- here it comes, Mr. Speaker -- why does the minister not act on this resolution? I would think you would be interested in eastern Ontario, Mr. Speaker.

If he is really concerned with making Ontario farms more productive, why does the minister not improve his drainage program so that it matches the drainage needs of eastern Ontario?

Hon. Mr. Timbrell: Since about 1980-81, under the eastern Ontario subsidiary agreement and the northern Ontario rural development agreement and now under AgriNorth programs, we have contributed to the improvement of in excess of 400,000 acres of farm land.

PLANT SHUTDOWNS

Mr. Mackenzie: Mr. Speaker, I have a question of the Minister of Labour. Is he aware of the inaccuracy in his response to my question yesterday about the closure of the Canron plant in Hamilton? To quote from Hansard, the minister said: "If the member would look at the record for the first eight months of this year, he will find there has been a decrease of about 30 per cent over last year in actual closures and workers affected."

The minister was correct in terms of the total number of jobs lost under reduced operations, as well as partial and total closures, but he was misleading in terms of the more serious issue of partial and total closures, where an alarming trend appears. In fact, closures are up in the first nine months of this year from 69 to 88 plants and from 5,500 workers to 6,300 workers, increases of 28 per cent and 14 per cent respectively. Thus, where the jobs are gone -- not reduced operations but actual closures -- we are in real trouble.

Mr. Speaker: One moment, please.

Mr. Mackenzie: I asked the minister at the beginning if he was aware, Mr. Speaker.

Mr. Speaker: Yes. I heard you say that. I thought I heard you say something and I am sure it was a mistake. You meant to say "mistaken," but you said "misleading."

Mr. Mackenzie: Mistaken.

Mr. Speaker: Thank you.

Hon. Mr. Ramsay: Mr. Speaker, there is no way I want to mislead this House or mislead the honourable member. I was referring to eight-month figures and I believe I heard him use nine-month figures. I was recalling the figures from memory from my statement in the estimates debate. If they are incorrect, I will be happy to correct them and table them accordingly in this Legislature.

Mr. Mackenzie: If the minister will read them again, and I am quoting from his own figures, he will see they were not accurate, given the increase of closures.

When we are supposed to be in a recovery period, we have a problem with closures not only in branch plants but also in our ability to source. The two most recent Hamilton closures are perfect examples: Canadian Porcelain, which is the only plant making large Hydro insulators in Canada; and Canon, which is the only plant making pulp and paper screening plates in Canada.

Mr. Speaker: Question, please.

Mr. Mackenzie: Is the minister now prepared to assure us of a plant closure committee with a wide mandate and an early reporting date?

Hon. Mr. Ramsay: The answer is no.

PETITIONS

ABORTION CLINICS

Mr. Sargent: Mr. Speaker, I wish to table a petition signed by about 1,000 members of my riding. It reads:

"We, the undersigned, as electors of the province of Ontario opposed to the opening of abortion clinics, hereby petition you, the Attorney General, to appeal forthwith and prior to December 8, 1984, the Morgentaler acquittal. We hold the gift of human life as sacred from the moment of conception.

ROMAN CATHOLIC SECONDARY SCHOOLS

Mr. Bradley: Mr. Speaker, in compliance with a request to me as a member of the Legislative Assembly to present a petition to the House, I present the following petition:

"To the Honourable the Lieutenant Governor and Legislative Assembly of Ontario:

"We, the undersigned, beg leave to petition the parliament of Ontario as follows:

"Whereas any action to extend public funding to separate secondary schools in Ontario would represent a fundamental change in public policy in this province; and

"Whereas people in a democratic society have a right to be consulted prior to implementation of policies which change long-standing relationships; and

"Whereas there is an understood convention in democratic societies which respect the rule of law that before fundamental changes in public policy are implemented such matters should be debated in the Legislative Assembly with an opportunity for the public to appear and to be heard;

"We petition the Ontario Legislature to call on the government to debate the issue of extension of public funding to separate secondary schools prior to implementation, such debate to include consideration of the issue by an appropriate committee of the House with an opportunity provided for the people to appear and to be heard."

This petition is signed by a number of members of the Ontario Secondary School Headmasters' Council.

Mr. Allen: Mr. Speaker, I have a petition to the same effect as the one the member for St. Catharines (Mr. Bradley) has just read, with the same whereases. It concludes:

3:30 p.m.

That, as the member indicated, comes from the Ontario Secondary School Headmasters' Council. I will send it to the Clerk for registration.

ORDERS OF THE DAY

COURTS OF JUSTICE AMENDMENT ACT

Hon. Mr. McMurtry moved second reading of Bill 145, An Act to amend the Courts of Justice Act.

Mr. Nixon: Mr. Speaker, as acting critic for legal affairs, I am delighted to be able to respond to the call for second reading of this bill. I was thinking the Attorney General (Mr. McMurtry) would have another lengthy statement to present to the House, but I gather he considers the legislation routine in spite of the fact that it implements further the requirements of the federal Young Offenders Act.

We have had a very brief experience in the application of the bill. After my lengthy research into the matter, I am aware that it is still in phase 2, to be completed early in 1985, when the ambit of responsibility under the Young Offenders Act will proceed to age 18.

The designation of our provincial courts as having responsibilities under the Young Offenders Act is certainly welcome on this side. We are interested, however, that the government still seems to have difficulty in deciding whether or not there is some sort of division, particularly in the custodial care of young people aged 14 and 15 as opposed to those aged 16 and 17.

There is some indication in a further amendment we will be discussing later in this session that there is still this dichotomy in the mind of the government and that it is quite prepared to put the older youths, if I may use that combination of words, under the jurisdiction of the Ministry of Correctional Services rather than that of another ministry more suitably based for their assistance and custody. But as far as this bill is concerned, we are certainly supporting it in principle.

I am sure the Speaker, along with many other members of the House, has been reading with interest the accounts of at least some of the applications of the Young Offenders Implementation Act, which was passed by this Legislature just a few months ago, particularly the horrifying case in Orangeville, where the judge, applying the requirements of the bill, has decided the courts will be open to the press although information associated with the trial will be somewhat restricted.

Ontario, along with some other provinces, was relatively slow in responding to the initiative taken by the government of Canada in this regard, so we are very glad that with the enactment of this bill the provincial courts will be designated as the courts of jurisdiction under the Young Offenders Act requirement.

Mr. McClellan: Mr. Speaker, I do not intend to speak at length because we have already had a number of debates in the last session and again this session about the policy of the Ontario government with respect to the implementation of the federal Young Offenders Act.

However, I still want to express my very deep concern to the Attorney General that in Bill 145 we are once again passing a bill that implements a two-tier system, one system for young offenders under the age of 16 and a second system for young offenders between the ages of 16 and 18. When we concluded the clause-by-clause debate on Bill 77, An Act respecting the Protection and Well-being of Children and their Families, we passed the section dealing with the implementation of young offenders and the definition of "court." According to paragraph 3(1)11 of Bill 77, "'court' means the provincial court (family division) or the unified family court." That will be the court for young offenders under the age of 16.

In the bill that is before us this afternoon, Bill 145, an explanatory note reads as follows: "The amendments provide for the continued designation of the provincial court (family division) and unified family court as youth courts for the purposes of the Young Offenders Act (Canada). The provincial court (criminal division) is designated as a youth court, effective the 1st day of April, 1985."

In other words, young offenders between the ages of 16 and 18 will not be tried, as I understand it, in the provincial court (family division) or the unified family court. They will be tried in the provincial court (criminal division).

I continue to believe it is a mistake for the government to implement the federal legislation on a two-tier basis. My concern, simply put, is that we are going to have one level of service, which I hope will be a first-class level of service, within the Ministry of Community and Social Services operating under the aegis of the provincial court (family division) and the unified family court for young offenders under the age of 16, but young offenders between the ages of 16 and 18 will be treated as though they were adult offenders. 'They will be dealt with by the Ministry of Correctional Services as though they were adult offenders and will be dealt with in the provincial court (criminal division) as though they were adult offenders.

I fail to see that the government has respected the spirit of the federal Young Offenders Act, which has extended the age of young offenders to 18. Perhaps the Attorney General could respond to this final point as I conclude. I understand from discussions I had with the Minister of Community and Social Services (Mr. Drea) that this decision is not yet writ in stone and that there is still some opportunity in the future, once the initial implementation has been accomplished, that the system for young offenders in this province may be unified.

As the Attorney General winds up the second reading debate, I would like to know whether that is a possibility. I very much hope it is. I understand some of the difficulties in implementation that have led to the decision to go with the two-tier system, but I hope that is not a permanent and irrevocable decision. I think we would be failing to capture the full spirit and the full set of opportunities under the federal legislation if we simply pretend we have not done anything different and treat people under 16 the way we have in the past while we treat people between 16 and 18 as though they were adult offenders.

I intend to oppose Bill 145. We have in the past indicated our real concern about the two-tier system and we will be making the same point this evening when we deal with Bill 149.

Hon. Mr. McMurtry: Mr. Speaker, with the greatest respect to the member for Bellwoods (Mr. McClellan), I have to disagree with his characterization of this amendment as creating a two-tier system. The young offenders legislation will apply equally to all young offenders, regardless of whether they are between the ages of 16 and 18 or under the age of 16.

I should say as well that all young offenders will be tried, not in a family court or a criminal court as so designated, but by judges who are sitting as youth court judges. The law will be equally applied in the youth court. From an administrative standpoint, it makes sense to us to designate both our provincial court criminal judges and our provincial court family judges as youth court judges.

3:40 p.m.

There is nothing particularly mysterious and certainly nothing sinister in that. In many parts of the province our provincial court judges sit both as family court judges and as criminal court judges. In other provinces it is very common to have judges who are designated as both criminal and family court judges. Surely there can be no question about the capacity of these judges, whether they are designated from the criminal court bench or the family court bench, to apply the spirit as well as the letter of the law in so far as the young offenders legislation is concerned.

I cannot predict what will happen to any young offenders who will be incarcerated. The division that has occurred between the ministries of Correctional Services and Community and Social Services also recognizes the fact that youthful offenders should not be lumped together. Generally speaking, a 17-year-old is much more mature than a 13-year-old, and to lump them together in so far as custodial institutions are concerned would be most unwise.

I hope the member will accept the fact that all our judges, whether they are drawn from the criminal court or from the family court, will abide by the spirit as well as the letter of this legislation.

The Deputy Speaker: All those in favour of the motion for second reading of Bill 145 will please say 'aye."

All those opposed will please say "nay."

In my opinion the ayes have it.

Motion agreed to.

Bill ordered for third reading.

House in committee of the whole.

WORKERS' COMPENSATION AMENDMENT ACT (CONTINUED)

Resuming consideration of Bill 101, An Act to amend the Workers' Compensation Act.

On section 9:

Mr. Chairman: I wonder whether the committee can assist the chair. I am not certain; was the minister by chance going to start with comments of a responsive nature?

Mr. Mancini: Mr. Chairman, I was just getting ready to move another amendment. I believe we had just finished a lengthy debate on subsection 36(13), the matter --

Mr. Chairman: Is that the amendment to subsection 36(7), by any chance?

Mr. Mancini: Yes. We had just finished debate on subsection 36(13), and we had moved back to subsection 36(7).

Mr. Chairman: And we had only a couple of minutes, I believe. Was the minister about to make a comment on that point? No.

Mr. Lupusella: Mr. Chairman, if there is no comment on the part of the minister, I am ready to move another amendment, with your consent, that subsection 36 --

Mr. Mancini: Mr. Chairman, on a point of order: We had agreed we would revert to the amendment I had informed the chair we would be making. I believe that amendment was in regard to --

Mr. Chairman: Subsection 36(7)? We had stacked subsection 36(5).

Mr. Mancini: Yes, it was subsection 36(7).

Mr. Chairman: Mr. Mancini moves that in subsection 36(7) of the act, as set out in section 9 of the bill, "$1,500" be deleted and "$2,000" be substituted therefor.

Mr. Mancini: Mr. Chairman, you may recall that before the hearings that took place this past fall we had some opportunity for debate in the House in the preceding spring. I had raised issue with this section as it appeared in the old act prior to this section being revised as it is now in subsection 36(7).

I was quite perturbed at the time at the way we handled funeral expenses for deceased workers. I was quite concerned about the stress, strain and agony the old act placed upon the family. That point was raised again during the committee hearings that concluded before the resumption of this session of the House.

I was very happy to see that the minister accepted my views on this matter and did establish a floor for funeral expenses, the floor being $1,500, with the opportunity for a further sum to be paid by the Workers' Compensation Board as determined if the extra expenses were necessary.

We spent some time in committee discussing how this would work, the sensitivity of the whole subject and whether we were handling the matter properly. I think all members, including the minister and the members of the government, agreed they did not want a grieving family to be appealing to the WCB for a few hundred dollars and going through the process of appeals, objections and all the formal procedures the board works with.

I expressed some concern at that time that $1,500 was not an adequate figure. I was assured again by officials of the board and by the minister that if these figures were not adequate, all we had to do was ask for more. I find the situation would be much better for all of us, and principally for the grieving family, if they did not have to ask for more and if very few families, if any, had to ask for more.

3:50 p.m.

I am substituting $2,000 for $1 ,500 in the hope that in these unfortunate circumstances a great number of people who might have been put in a situation where they would have had to ask for $200 or $300 or $400 or $500 more will now not have to. Not only is it an agonizing situation, but I can see in some circumstances where it could be very embarrassing also when they are burying a loved one to feel they have to go before the Workers' Compensation Board to get an extra $250 or $300 to cover funeral expenses for their loved one. I can see that this could be a very demeaning experience. I am hoping my modest adjustment to this section will ensure that does not happen as often as I believe it would if the figure of $1,500 now in the section were used.

I am not familiar with the costs of a funeral, but $1,500 in no way seems to be applicable to and reasonable by today's standards. Things are very costly today. By making this amendment, I am trying to avert embarrassment, trying to keep people from feeling they are demeaned and trying to avert the whole system of appeals in such a touchy situation.

I have to be honest. I do not know whether $2,000 is the right figure. I do not know whether $2,000 would be adequate to cover the average, for lack of a better word, cost of a funeral today in Ontario. I am assuming costs would be different from one part of the province to another. I am hoping the minor amendment I am making here, adding $500 to the amount allowed, will be helpful in some way in the circumstances I have described.

I understand there are regional differences, and we would try to work them out, but if the minister or his staff have figures that would indicate the cost of the average funeral in Ontario is greater than $2,000, I would be most pleased to withdraw the amendment and accept the minister's figure. Failing that, I will stand with the amendment I have made.

Mr. Lupusella: Mr. Chairman, we do not have any objection to the figure of $2,000 as described by the Liberal member, even though at the committee stage we moved another amendment that would have increased the amount to $2,500. I do not want to be wrong, but this is as far as we went as a compromise position.

What the total amount for funeral costs should be is a sensitive issue that divides people from all sides. I think $1,500 was perceived by the minister as the figure that would in some way incorporate the wide range of funeral costs across Ontario.

We have also raised the cultural issue of ethnic people who are faced with funeral costs. I am sure neither the minister nor the board ever pursued any study of how much ethnic people are paying for funeral expenses. I would like to tell the minister that the cost is quite high. I did my research among people who had to bear this cost; we are talking about $4,000 or $5,000 or even more. That surprises a lot of members, but because we understand the cultural makeup of this province and this country, it does not surprise me or other members who understand what they are talking about. Ethnic people face this extra expense as a result of traditions that I do not think can be disputed at this point. Traditions and religious grounds are at the bottom of this situation and should be understood as to the way they are.

Having said that, we are faced with a situation where a lot of people, and I am making particular reference to ethnic people, are incurring an extra cost that is not incorporated either in the figure used by the minister or in the figure used by the honourable member.

The $2,000 will not reflect the general, widespread situation I have just mentioned. I think the minister should be particularly flexible about that amount, even though there is now an extra dimension in subsection 36(7) that if "the body of a worker is transported for a considerable distance for burial or cremation, a further sum, as determined by the board, shall be paid for the necessary extra expenses so incurred."

The extra dimension included in the clause is a result of a sensitive approach by the minister in understanding what this situation is all about, in particular the fact that if a body has to be transported to a country in Europe or elsewhere, there is an extra expense that is at the discretion of the board to determine.

We have raised this issue many times. In 1974 and 1975, a group of amendments was introduced in this Legislature to amend the act. I think the total amount was in the range of $600. Almost 10 years later, we are determining that $1,500 is the right amount to be applied. I disagree with the minister. I hope we will take the opportunity of this friendly amendment from the Liberal Party to accept the figure of $2,000, even though our figure was rejected during the committee stage. I hope the minister will use his sensitive and flexible mind to increase the amount, because it reflects the needs of the cultural makeup of this province.

Mr. Chairman: All those in favour of Mr. Mancini's amendment to subsection 36(7) will please say "aye."

All those opposed will please say "nay."

In my opinion the nays have it.

Motion negatived.

Mr. Lupusella: Mr. Chairman, I have to withdraw my statement about the flexible and sensitive mind of the minister. I withdraw my remarks until the minister is ready to accept our amendment.

Mr. Laughren: Mr. Chairman, on a point of order: I knew the member was wrong when he said it in the first place.

4 p.m.

Mr. Chairman: Mr. Lupusella moves that subsection 36(15) of the act, as set out in section 9 of the bill, be amended by replacing in lines 4 and 8 the figure "90" by the figure "100."

Mr. Lupusella: Mr. Chairman, I really do not want to prolong the discussion. This was clearly spelled out in debate yesterday, in the lengthy discussion in the standing committee on resources development during the summer and even before the summer months when public hearings were called by the committee to determine the pros and cons of 100 per cent versus 90 per cent.

Several arguments were placed before the committee, and the committee itself really reached the point of rejecting the position that was taken in a very vigorous way by the New Democratic Party, in particular by my colleague the member for Nickel Belt (Mr. Laughren). His arguments were more or less the basis of a lengthy discussion, which even Professor Weiler touched upon in a few short paragraphs in his report. He did not see the reason 100 per cent should not be considered rather than 90 per cent. It appears from the few paragraphs that were in his report that even he was favouring a figure of 100 per cent instead of 90 per cent.

But at the time Professor Weiler wrote his report, and after we realized what the government was really trying to do in relation to certain concrete recommendations that he had made so clearly in his report, the government's white paper and then further amendments that were introduced by the government as a result of the government's white paper, we realized the government was not even supporting what Professor Weiler actually was supporting in his report.

The government and the Minister of Labour (Mr. Ramsay), of course, introduced some penalties in Bill 101 that would even reduce the total package of benefits to which injured workers are entitled or that they are supposed to receive under the new law: the Canada pension plan issue, the 90 per cent and the ceiling, which, instead of being 250 per cent of the average industrial wage in Ontario in 1981 for example, was chopped even further. So when Professor Weiler's report was acclaimed by the government when it was released to the public, we were of the opinion the government would implement in the law certain issues that were tackled by Professor Weiler instead of reducing the effectiveness of his suggestions on the way in which the government should go.

The NDP tried during a different debate, and even now is trying to convince the minister, that with all the penalties against injured workers that are involved in Bill 101, the 100 per cent figure is a fair figure that should be implemented in the new act. Of course, the 100 per cent figure will also give extra elasticity to the total package of benefits that injured workers are supposed to receive under the new act and the old act.

The reason we pursued a strong discussion on that issue is that the 100 per cent figure we are suggesting has some serious ramifications, for example, on the assessment of injured workers' pensions when they are called by the board to determine the amount of money they are to receive. Even though we are talking about a difference of 10 per cent from 90 per cent to 100 per cent, that difference on the amount of money injured workers are supposed to receive on their pensions means a lot to them and we do not think the government has the right to penalize injured workers across Ontario.

When we talk about injuries, we may be talking about injuries that do not last more than three, four or six months, or perhaps six weeks, so we are talking more or less about accidents that will not cause permanent disability to injured workers. If we consider the other spectrum before us, that is workers who are seriously and permanently injured, then the 100 per cent figure makes a lot of sense to us. Even though we are dealing with a new law, Bill 101, the meat chart will be there. Eventually, the pensions will be assessed with the same balancing figures that have been used for centuries in Ontario.

Professor Weiler did not really oppose the 100 per cent figure. He actually gave a hint to the government and the minister that 100 per cent was the right figure to choose, instead of 90 per cent of net. The 100 per cent figure has also been supported by the trade union movement and by all organizations of injured workers appearing before the committee during the course of public hearings.

If I remember correctly, the minister told us once that the concerns of injured workers would be taken into consideration before the public hearings started in that committee. Perhaps some issues have been taken into consideration, but I do not think the minister paid much attention to the issues about which injured workers and the trade union movement in Ontario really felt strongly.

We are, therefore, urging the minister to be flexible enough to accept our suggestion that 100 per cent of injured workers' incomes should be contemplated and accepted, because at least the 100 per cent figure will not penalize injured workers in Ontario.

Mr. Laughren: Mr. Chairman, I regret I was not here for the last couple of sessions when this bill was debated. I am sorry I missed seeing what the minister did on section 8 of the bill, which repeals sections 21 and 22 of the existing act having to do with the right of employers to send their workers to the doctor of the employer's choice.

4:10 p.m.

I can recall during the debates in the committee, at one point the minister implied he would not be making many changes. I said I thought the employers' council had got through to him. He denied that vehemently. He said: "No, that is not true. My meetings with the employers' council were much more difficult than my meetings with the injured workers' groups in the province." I recall that very clearly.

Now I know I was wrong. It was not the employers' council that was climbing all over the minister's frame, it was the Council of Ontario Contractors Associations that was doing it to him, and I suppose that is the reason he backed down. That really is a sad commentary on what has happened to that section of the bill, because there is simply no justification for that change, none whatever. I regret the minister was not able to stand in his place and say that honestly.

Hon. Mr. Ramsay: On a point of order, Mr. Chairman: I regret that I have to rise again to try to clarify the record on this matter. The member does not have to accept what I am going to say, but I have given him the opportunity to say whatever he wanted to and I hope he will accord me the same privilege.

COCA came to me --

Mr. Laughren: You are repeating what you said the other day.

Hon. Mr. Ramsay: That is correct, for good purpose, because the remarks I made the other day have been misconstrued. That is why I am repeating myself, to have them on the record. Let me tell the honourable member exactly what happened. If he will provide me with the opportunity to do so, I will do it as briefly as possible.

It is correct that representatives of the construction association came to see me about this matter. As I said in the House the other day, I told them I was not about to change my mind on that section. If they wanted to visit the opposition parties and get their concurrence, then I would look at it again.

They took me up on that suggestion and did visit. I understand the Liberal caucus agreed the section could come back and the New Democratic Party indicated it did not want the section to come back. As far as I was concerned that was it; I had fulfilled my obligation, and that was it.

However, a good two weeks after that, and I can substantiate the date -- it was at least two weeks after that -- the legal department in my ministry, in perusing several factors of the bill, indicated there could well be a problem under the charter.

I indicated we should get a second opinion if they thought that, because I did not want to proceed strictly on the basis of a legal opinion within our own ministry. We sought a second opinion from the office of the Attorney General. Those two opinions from my ministry's legal personnel and from the Attorney General's office resulted in the changes in the amendment that I placed in this House on Friday.

Mr. Laughren: I find what the minister just said unbelievable because I do not believe the members of the official opposition would have done that. That was not the position they took in the committee.

Is the minister sure of his facts? Is he sure the official opposition agreed to that change COCA has requested -- demanded even? I assume the minister knows what he is talking about, but I sure would like some clarification from the official opposition because I was led to believe that was not its position during the committee debate.

I would find it reprehensible if the minister is not laying on us the facts as they really are. That would bother me a great deal because it is not fair to the official opposition. I think it is not like the opposition to change its mind just because it is lobbied by the construction industry. I am not very happy with the minister's explanation because it puts the official opposition in an impossible situation. I do not think it is appropriate.

The minister has to stand by his decisions without casting these kinds of aspersions on the official opposition. He was the one who had the decision to make. It was not the decision of the official opposition but the decision to the minister to cave in on this debate; I have the records to show that.

If the official opposition caved in because of lobbying from the construction industry, it would stand up and admit it. They would not sit back and let the minister make the arguments for them. That is the last thing the official opposition in this chamber would do and I do not expect it to do that. Anyway, I do appreciate the minister's attempt to explain away his responsibilities and pass them on to the official opposition.

We were debating section 9 --

Mr. Chairman: Mr. Lupusella's amendment to subsection 36(15).

Mr. Laughren: Mr. Lupusella's amendment concerning the survivor benefits. I have been thinking about the whole question of survivor benefits. I read the Globe and Mail of Saturday, December 1, and on the editorial page a columnist called Jeffrey Simpson, who writes regularly for the Globe in Ottawa, had a column entitled "Ungenerous Treatment." It deals with the death of Clark Todd, who was a CTV correspondent. As most members will recall, he was killed while reporting on the job in Lebanon.

Mr. Simpson expresses dismay at the ungenerous treatment of Mr. Clark Todd's widow by the CTV network. He says:

"But the network carried only $100,000 insurance. It paid Anne Todd only 15 months' salary. It also promoted a trust fund for Clark's children, but refused to make a contribution. The result is that Clark's widow will receive from these three sources about $185,000. (The American network ABC, which shared Clark's material, contributed $89,000.)"

Mr. Simpson goes on to say:

"If Clark had worked for NBC, after all, his widow would have received about $440,000. The BBC would have paid about $280,000 plus a pension and annuity. CBC has a $250,000 insurance policy plus a pension. The Globe and Mail's policy is $250,000 in a war zone. British papers pay either seven or 10 times salary, which in Clark's case would have been $400,000 to $600,000."

Mr. Simpson concludes by saying: "CTV is owned by its highly profitable constituent stations, which in turn are controlled by some of Canada's wealthiest businessmen. The network should do better by the survivors of one of its finest employees."

That column struck a responsive chord in me. If we transfer the subject here, Mr. Clark Todd, and put in his place the other people who die on the job in this province, whether it is in the mining industry, the construction industry or whatever, those people go to work where there is a danger on the job. We all know that.

If we look at the statistics of people in the mining industry or construction industry, and I was just reviewing the industry figures today, the death rate on the job for miners is much higher than, for example, that of policemen on the job. The mining industry is a dangerous occupation and construction is a dangerous occupation.

When I see these kinds of numbers being applied to journalists because they work in a war zone, I say to myself: "Wait a minute. There are all sorts of dangerous occupations out there. What is good enough for the journalism profession is surely not too good for people in the mining industry and the construction industry."

4:20 p.m.

That is why every time we have a debate on workers' compensation in this assembly, I am moved either by statements of the minister or by amendments that are being made to comment on how, of all the bills that come before the assembly, the one that is without doubt the most biased against the working-class people of this province is the Workers' Compensation Act. Beyond a doubt, the Workers' Compensation Act is the worst piece of legislation for working people to come before this assembly.

When I see the minister stand in his place and make excuses as to why we cannot have decent survivor benefits, I am reminded of that fact all over again. The minister does not have to stand in his place and blame the official opposition. He does not have to stand in his place and make apologies for the lobbies that have come before both him and the Conservative caucus. If I recall correctly, there was a lobby by industry before the Conservative caucus on this very bill. They said: "Hold up, hold back; do not enrich it so much."s

Mr. Treleaven: I think you are wrong.

Mr. Laughren: If I am wrong, I am sure the minister or somebody else will correct me. If I am right, the members should stay seated. If I am wrong, they should rise in their places and correct me. They have a choice. I rest my case.

Mr. Chairman: People standing up and sitting down is not part of our procedure. They can indicate it when it is their turn to debate.

Mr. Laughren: Mr. Chairman, you are right. It is possible it was not the employers' council and not the contractors who appeared before the Conservative caucus but the official opposition. Perhaps that is who appeared before the Conservative caucus and said, "Hold the line on compensation costs." Who knows?

Mr. Treleaven: Wrong again.

Mr. Laughren: If I am wrong about that, the member should stand in his place and tell me. I rest my case again. I really wonder what is going on behind the scenes with this bill.

What I have been trying to say as briefly as I can is that the members opposite and to my right should support the amendment of my colleague the member for Dovercourt (Mr. Lupusella). It is not an unreasonable amendment. It is not an amendment that should make the employers of Ontario quake in their boots and immediately telephone their accountants to see how it will affect the bottom line. It is not that kind of amendment at all.

I ask the members opposite, and particularly the minister, to accept this very reasonable amendment.

Hon. Mr. Ramsay: I want to say how pleasant it is to have the member for Nickel Belt (Mr. Laughren) back again. We missed his ready wit and his astute comments and observations on the bill on Friday and Monday, even though the member for Bellwoods (Mr. McClellan) and the member for Dovercourt did an admirable job. The presence of the member for Nickel Belt today really makes the debate.

Mr. Laughren: You know how to hurt a guy.

Mr. Chairman: All those in favour of Mr. Lupusella's amendment to subsection 36(15) of the act under section 9 of the bill will please say "aye."

All those opposed will please say "nay."

In my opinion the nays have it.

Motion negatived.

Mr. Mancini: Before we move on, I have an amendment to section 9 of the bill as set out in subsection 36(15) of the act. In previous sections of the bill which dealt with a formula that would give surviving spouses and families a lump sum payment in the range of $20,000 to $60,000, I moved to have that formula struck out. I moved to substitute a lump sum payment of $50,000 regardless of age or any formula.

To ensure the continuity of my amendments, I am moving that $60,000 be struck out and in place thereof to have $50,000. I have a copy of this. It is a straight substitution of $60,000 by $50,000. We must understand that the $60,000 is a maximum that not everyone would get and many of these people would be getting far less than $60,000. Some would get $40,000 and some would get $30,000.

Mr. Chairman: Mr. Mancini moves that subsection 36(15) of the act, as set out in section 9 of the bill, be amended by deleting "$60,000" and substituting "$50,000" therefor.

Mr. Lupusella: Mr. Chairman, I would like to make a clear statement about where we stand on this issue. At the very beginning, with the greatest respect to the honourable member, the increase from $20,000 to $50,000 sounded like an improvement to the system. Under subsection 36(15), we are now reducing the payment from $60,000 to $50,000. I really do not understand the criteria that have been used. With the suggested amendment of the member we are now penalizing people who, instead of receiving the maximum of $60,000, will now receive only $50,000.

I got the impression at the very beginning, as a result of previous amendments, that his amendment would improve the total package of benefits to surviving spouses. But now realizing in a very concrete and clear way that it is cutting benefits to surviving spouses, I would like to state we are going to oppose the amendment suggested by the member.

Mr. Mancini: Mr. Chairman, in regard to those comments, and just to make sure that we are clear about this, you will recall the debate that took place when we discussed subsection 36(1). You will recall that the government's formula worked in such a way whereby a maximum of $60,000 as a lump sum could be paid or a minimum of $20,000 as a lump sum could be paid in the circumstances described by the legislation.

You will recall there is a formula in place that figures out what amount of money an individual would be receiving. You will recall that an amendment was made whereby the formula was changed somewhat. While criticizing the formula, I have concluded that the formula is not the way to go. We should not, in my view, give some people $45,000 or $48,000 or $28,000 and others $38,000 or $58,000.

It would be very difficult to explain to these individuals why they received less than someone else when the reason for receiving the payment was for exactly the same type of injury. The injury caused death. We took into consideration the fact that someone was going to have to explain to an individual or family that the death which occurred in the family was being compensated by a lump sum of $40,000 or some other figure while other people were being compensated by a greater amount. Therefore, I decided the formula is probably not the best way to go and I have substituted $50,000 in all of the amendments.

4:30 p.m.

To say holus-bolus we are reducing people's benefits is not exactly the way it is. I could use stronger words, Mr. Chairman, but you would probably ask me to withdraw those remarks and I will not put us in that position.

The $50,000 lump-sum payment is, in my view, a better way to go. Secondly, no matter how you cut it, no matter how you work your figures, $50,000 is better than $20,000, better than $25,000, better than $30,000, better than $35,000, better than $40,000, better than $45,000 and better than $49,000.

Mr. Laughren: It is not as good as $60,000.

Mr. Mancini: We could have gone to $60,000.

I could accept the logic of an amendment from the member for Dovercourt if he said: "Let us go from $50,000 to $60,000 because we believe everyone should have $60,000. Let us forget about the formula that we have been criticizing but trying to use."s

That is what I have been unable to accept. We are critical of the formula. Instead of saying to the minister, "We are not interested in your formula; we do not want any part of your formula," we up the ante and go ahead and use it. If the formula is no good, let us throw it out and come up with what we consider to be a reasonable figure, which I deem to be $50,000, and that is how the amendment was placed.

There have been other amendments to keep the bill in conformity with the first amendment, and that is why this particular amendment has been made. I hope this clarifies the situation somewhat because we cannot leave on the record the impression that the formula, as amended, would in all cases grant more money than this particular amendment and the amendments I made before.

Mr. Lupusella: Mr. Chairman, I want to make clear that the figure of $60,000 will be acceptable if it is given on a flat rate to everybody. Then I am sure everyone will get the benefit of the implementation of that amount.

We are faced with a formula that was widely debated by the member's predecessors, the critics in the Liberal Party, when the standing committee on resources development was reviewing the contents of Bill 101 clause by clause. If he is going to talk to his own colleagues, we on this side are talking about a large and generous amount of money that was supposed to be given to surviving spouses. There was no doubt in members' minds there was a need to improve the system for the people who are suffering the most as a result of fatal accidents.

We were clearly convinced of that. The government recognized the need to improve the system. Then the government came to the point where the formula per se was already really generous and it could not give more because the system could not afford the cost. The Liberal members sitting on the committee were the ones who really rejected the principle of improving the benefits of surviving spouses when we were talking about further improvements in the system based on a more generous and more flexible formula.

The employers across the province did not reject the improvements per se; and even though eventually we were not disputing the figure provided by the formula, I think the member's own colleagues were the ones fighting it, because the costs would be too much in relation to the total money that would be given to surviving spouses covered under this particular section.

The member does not like the formula used in the bill. Personally, we do not approve of the approach ourselves. We are talking about the pension they were supposed to receive. We are talking about a lump sum and also about an extra dimension not incorporated within the contents of this particular section. It relates to the point of pain and suffering that Professor Weiler mentioned in his report.

The member should not say we are not ready to approve a better and different figure. In our dissent report we talked about an extra dimension to the situation, the dimension that pain and suffering were supposed to be considered at the time an accident had taken place in the province. In this specific case, the surviving spouse's pain and suffering is something that can be easily recognized because somebody passed away as a result of an industrial accident.

I want to clarify the record and place the figures before us in a very straightforward way because I do not want to leave the impression that the amount of money suggested by the Liberal member is extremely generous to the people who are supposed to receive the benefit when he has been disputing the increase from $20,000 to $40,000 as a result of the amendment we placed before this House yesterday.

In addition to the pension and the increase from $20,000 to $40,000, plus the $1,000 extra based in relation to age, I think our formula will go above the amount of money suggested by the Liberal member. Therefore, to diffuse the issue that we are against further improvements to the system, I wanted to rise again and clarify the record.

There was unwillingness on the part of the Liberal Party and the government to improve and give more generous pensions and benefits to surviving spouses because the system could not afford to pay the total costs and because employers would go bankrupt if such a clause were to be improved any further.

Mr. Wrye: Mr. Chairman, I found the last remarks of my friend, the member for Dovercourt, a fascinating experience, because it almost left me with the impression that he and I had sat on different committees when this matter of the Weiler report was discussed.

I want to remind the member for Dovercourt, Mr. Chairman, of something and I want to refresh your memory, although I know you will remember where he will not. The member for Dovercourt and the member for Nickel Belt both stood in their places and voted for the Liberal amendment to what was at that point proposal 7 of the Weiler report. My friends opposite supported the Liberal proposal placed before the standing committee on resources development. That was some time ago in the days when I sat on that committee. The member for Dovercourt will remember that.

I find all of this discussion from the member for Dovercourt to be most strange. I have not followed this debate as closely as I might have wanted to because of other activities I have been involved in; however, I remember from my reading of the bill, and it was some time ago, that this section with some flaws is probably one of the more progressive elements of a bill that I do not find terribly progressive for the most part.

What my colleague the member for Essex South (Mr. Mancini), has done, rather than have a floating lump sum compensation rate, is he has proposed a fixed rate which would not float with age. As I understand from the member for Dovercourt, he has proposed to continue the floating rate but at a higher level than that proposed by the government legislation. In either case we accomplish approximately the same end. He may wish to go to a higher level than my colleague proposes, but overall the total amount paid out would be about the same.

4:40 p.m.

I hope my friend the member for Dovercourt will understand that and perhaps review his position and support our amendment. As my colleague points out, this amendment to subsection 36(15) is simply consistent with positions he put earlier in this debate. I hope the House will find it acceptable.

The Deputy Chairman: We have an amendment before us that has been moved by Mr. Mancini; it is to subsection 36(15).

All those in favour will please say "aye."

All those opposed will please say "nay."

In my opinion the nays have it.

Motion negatived.

Mr. Mancini: Stack the vote.

The Deputy Chairman: No. You have to have five members stand, and they did not stand.

Mr. Mancini: Mr. Chairman, we had made an all-party agreement that we would stack all these votes.

The Deputy Chairman: The member for Essex South knows you have to have five people stand in order to have a vote stacked. That is how it works.

Section 10 agreed to.

On section 11:

Mr. Lupusella: Mr. Chairman, I move that section 11 of the bill be amended by deleting in the proposed subsection 40(1) of the act the words "90 per cent of" and by deleting in the proposed clause 40(2)(a) the words --

The Deputy Chairman: I suggest we do them within the section, subsection by subsection. That will give plenty of opportunity for debate.

Mr. Lupusella moves that subsection 40(1) of the act, as set out in section 11 of the bill, be amended by deleting the words "90 per cent of."

Mr. Mancini: Mr. Chairman, are we going to start at section 40, or are we going to leap to section 41?

The Deputy Chairman: No. We are at section 11.

Mr. Mancini: Right; section 40.s

Mr. Laughren: Subsection 40(1).

The Deputy Chairman: Subsection 40(1).

Mr. Mancini: Mr. Chairman, I have an amendment to that section.

The Deputy Chairman: Which section are you going to be bringing your amendment to? I have already recognized one amendment on the floor, which is to subsection 1.

Mr. Lupusella: We are quite flexible, Mr. Chairman --

The Deputy Chairman: I appreciate that so much. We will deal with the amendment on the floor --

Mr. Breaugh: If the member for Essex South can find his place in the bill.

The Deputy Chairman: Where is your amendment going to be coming in, member for Essex South, so I can be sure to recognize you?

Mr. Mancini: I am sorry, Mr. Chairman. We are going to create a new subsection 4.

The Deputy Chairman: Fine. You can do that after the first three subsections have been dealt with. It is confusing, and I recognize it is not easy with all the changes we are making.

Mr. Lupusella: No, it is not easy, Mr. Chairman. We understand the situation.

I have moved my amendment. We want to delete the words "90 per cent of" in the proposed subsection 40(1). As you will know from the previous discussion, our proposed deletion is in line with the position we have been taking from the very beginning, which is that we favour 100 per cent rather than 90 per cent.

In the interest of being brief, I will not extend the debate. I hope this amendment will be supported.

The Deputy Chairman: Is the member for Windsor-Sandwich standing to speak?

Mr. Wrye: No.

Mr. Breaugh: The member for Nickel Belt is standing.

The Deputy Chairman: I now recognize the member for Nickel Belt. I did not see him standing up, he is so tall.

Mr. Laughren: Mr. Chairman, I am a little perplexed about subsection 40(1), and perhaps the minister can give me some guidance on what is really meant when it talks about the "net average earnings before the injury so long as temporary total disability continues."

What I do not understand is whether it is clear in this section that the earnings before the injury means the normal period before the injury, such as four weeks, or whether this could also take into consideration the whole question of unemployment insurance earnings, for example.

I ask the minister to explain, and I believe this is the appropriate section to do this, what happens if a worker has a claim, goes back to work, then gets laid off, is on unemployment insurance and in the middle of the unemployment insurance claim, there is a problem with that worker's compensable injury, whether it involves his back, leg or whatever.

What happens to the computation of that worker's earnings at that point in view of the fact that immediately prior, for four weeks perhaps -- it could be six months; it could even be a year -- that worker had been at work and was on unemployment insurance during that time? What happens to the computation of that worker's earnings, whether it is 90 per cent as the bill currently says or whether it is 100 per cent as proposed by my colleague the member for Dovercourt in one of his typically progressive amendments, which he is forever putting before this chamber?

I will be interested in knowing from the minister exactly what that means. We have had some problems in the Sudbury area in view of the fact there have been so many layoffs. Also, there is the whole question of seasonal workers, who might have worked for only a couple of weeks, for whom it also causes a problem. I will be very interested in knowing from the minister just what that means and how he proposes to deal with it.

Mr. Di Santo: Mr. Chairman, I wish to concur with the member for Nickel Belt, especially under this section, because the 90 per cent compensation based on the worker's net average earnings before the accident is recurrent in this act, whether we are talking about widows' and survivors' pensions or whether we are talking about injured workers themselves.

In Professor Weiler's report and in submissions from various employers' groups, this 90 per cent was justified by the rationale that workers need an incentive to go back to work; otherwise they become too complacent if they get the same income as they received before the accident.

Putting aside other instances such as widows, survivors and the orphans, in section 40 we are actually talking of workers who are on temporary partial disability, which means immediately after an accident. If the reason is what was proposed by Professor Weiler and if it is accepted by the government that the worker should have an incentive to go back to work, this becomes a contradiction in terms, because a worker at that stage will have no possibility whatsoever to go back to work.

4:50 p.m.

Apart from the other consideration, there are workers who, irrespective of their intentions, irrespective of whether they want to go back to work or not, will be penalized in respect of the previous system. With this system, all the workers who make more than $20,000 a year will receive less money than they received under the previous act.

Since we are dealing with workers who are coming out of an accident situation and who have no possibility of returning to work, I ask the minister whether in this case he will accept the amendment moved by the member for Doverscourt, which makes sense -- it is common sense -- and give to the workers only what they are entitled and what they would have received had they not had an accident.

Mr. Mancini: Mr. Chairman, I have just a couple of comments on this discussion. The Liberal minority report, as members may recall, suggested the 90 per cent figure should be active for approximately 90 days, after which the 100 per cent figure would be used. We made that proposal to the minister and we thought it was a very reasonable proposal. We gave all the explanations during the committee hearings as to why 90 per cent was appropriate for the first three months and why it was appropriate to go up to 100 per cent after that time had passed. Unfortunately, the minister either did not agree with our suggestion or could not agree because of other factors.

We are now discussing a motion that would start the benefits immediately at the 100 per cent level. I want to have it on the record that we are going to support the amendment, because if we do not then we will not get the benefits about which we talked on behalf of the workers after that time of 90 days has passed. We are not interested in penalizing the injured workers who have been off for that period because some of the others may be helped prior to the number of days that had been suggested in the Liberal minority report.

The minister had a reasonable alternative. He could have accepted it. He chose not to. We believe the motion of the New Democratic Party will cover our concerns and therefore we are going to accept it.

Mr. Wrye: Mr. Chairman, I want to speak briefly on what is, for injured workers, a very crucial aspect of this bill.

I want to start out by reminding the House that the board's own actuaries have determined that 90 per cent of net works out to less -- not more -- than 75 per cent of gross. That is the reality. So what the government would have us do is to pay on total temporary benefits, albeit under the guise of more equity -- a concept that I accept and my colleagues accept -- less money than now is being paid. That is the reality. That is what the board's own actuaries tell us.

As I remember it, and it exists to this day, there were three reasons why Professor Weiler proposed this 10 per cent penalty on injured workers. The first was that injured workers would need this extra 10 per cent to return to the job. I reject that reason out of hand. The board has plenty of power within its own ambit, and so do the employers of this province, to ensure that working men and women who have suffered an injury on the job will return to work as soon as they are healthy.

The second and third reasons were the reasons that troubled my colleagues on the committee and led us to propose the very reasonable alternative this minister had available to him but again rejected. That alternative was that there would be a net saving, to some workers at least, because for a period of time they would not have to attend on the job. One can think of a worker in this community who might work in the downtown area and who, for a period of a few days, would not have to pay the costs of going to and from work by subway. That is clearly a saving.

We attempted to balance that with the cost of injury-related expenses for more severely injured workers. We are talking about the worker with a back injury who is off for a period of time and finds he has to have someone cut his lawn, shovel his driveway and get him to and from the doctor. That is when potential savings, as minimal as they are, would be outweighed by new expenses.

Neatly dovetailed with that was the fact that tax experts showed us 90 per cent of net on the short term might at the end of the tax year turn out to be 100 per cent of the net take-home pay in real terms because it is nontaxable. There would be no loss to the injured worker on the tax end of it. Consequently, the feeling that 100 per cent would be somewhat too generous began to disappear over time.

What we proposed in committee, and what we had hoped the minister would bring in, was a very reasonable and moderate middle ground, 90 per cent of net for 90 days and 100 per cent of net thereafter, capturing that seven or eight per cent of workers who do not return to the job. That figure may startle some members of the Legislature who have injured workers coming into their offices, the vast majority of whom have been off for more than 90 days, but fewer than one in 12 are actually off the job for more than 90 days.

Our amendment attempted to protect those workers and their money. Basically, the 75 per cent of gross as compared with the 90 per cent of net, going to 100 per cent after 90 days, costed out at about the same net cost.

I am curious why the Minister of Labour rejected that idea. I am curious why the minister rejected a very moderate and mild reform and brought in 90 per cent of net, which he claims will bring equity to the system. If he wants to talk about equity, he should not talk about equity by going from gross to net; he should talk about equity for workers all the way down the line. I will be very interested to hear why we have not brought in that additional form of equity.

It might have added a little bit to the bureaucracy of the Workers' Compensation Board, and I would be the last to suggest that it needs more bureaucracy, but surely the board's computers can spit out a new figure after 90 days for that seven or eight per cent of injured workers, who in any given year total about 10,000. Surely something could be programmed into the computer to click in after 90 days and move to 100 per cent of net.

I would like to hear the minister explain why we have not gone to the 90-100 system. Failing that, I can only agree with my colleague the member for Essex South; I will admit quite openly that 100 per cent of net, based on a short-term injury, may actually be overcompensation in the short term, but I am more worried about the real loss to injured workers over the long term.

I am not worried about the injured worker who is off the job for a week and who may lose $5 of what he would have made if he had been on the job. I am more concerned, as this Legislature should be, about the injured worker who has been off the job for six months and who looks forward to another six months with the attendant continuing loss under this 90 per cent of net scheme.

5 p.m.

Mr. Laughren: Mr. Chairman, I support what my colleague the member for Dovercourt is trying to do, but I would like to make a brief comment about what the member for Windsor-Sandwich (Mr. Wrye) has said. I think his proposal, and I recall it very well in committee, was imaginative and very good. We did support it in the committee when we could not get the 100 per cent. I think it should erase some of the problems the minister has about overcompensation.

After someone has been off for three months -- I believe that was the member's amendment -- that person is off completely at the direction of his or her doctor. The worker does not make the determination to stay off longer or to go back to work. That is determined by the medical evidence. Those of us who spend a lot of our time on compensation problems know that very well. I thought that amendment answered the problems of the minister and the problems of the industry as well. For those reasons, I thought it was a good amendment.

Before I sit down, I hope the minister got some information on the question I asked at the beginning.

My other point is that when we move to 90 per cent of net away from 75 per cent of gross, I think it needs to be said we really have some workers who will be better off with this change and some workers who will be worse off. The ones at the lower level of income will be better off and the ones at the higher level of income will be worse off. When we debated this in committee, the government back-benchers especially, not so much the minister, asked us, "Why are you socialists not supporting this and having the rich pay for the support of the poor?"

That is what they said. We should not lay that to rest immediately, because what this section does is ask one group of injured workers to subsidize another group of injured workers. I am all for equity out there in society, but within a disadvantaged group one does not ask some to subsidize others. That makes no sense at all. A fair section does not pick on some injured workers to subsidize other injured workers. That is a lot of nonsense. I hope the minister will not attempt to justify it by saying, "It is better for some workers." Sure, it is better for some workers at the expense of other workers, but that is unacceptable to us.

The members must understand that my party and I disagree fundamentally with the minister. We do not believe that people injured on the job should be asked to pay any financial penalty as a result of the injury. The government members do and they live quite happily with the fact that injured workers not only should pay the pain and suffering aspect of their injury, but also should have to pay a financial penalty.

That is something we will always find repugnant but, of course, we are such strong believers in the work ethic I understand why we feel like that. I am sure the government members understand that as well. They just do not have our commitment to the work ethic and, therefore, they are willing to penalize workers who get hurt on the job because they are living out that work ethic by going to work every day under sometimes dangerous conditions.

I simply remind the minister that he is not being as generous as he sometimes lets on when he talks about the 90 per cent versus the 75 per cent. I look forward to his explanation on how the latest available earnings will be arrived at.

Hon. Mr. Ramsay: Mr. Chairman, I was asked a direct question by the member for Nickel Belt. My response is that subsection 43(7) covers the situation of an unemployed worker who experiences a recurrence of a disability. Under this section, as amended, earnings at the most recent date of employment are the basis of benefits.

The Deputy Chairman: Is the member for Etobicoke (Mr. Philip) standing to speak to this?

Mr. Philip: No; I am sorry.

Mr. Lupusella: I do not have any objection to criticizing the content of what the minister stated. Even though something is covered under subsection 43(7), I think one thing that must be clear is there is a process which would be applied so that the average of different employment earnings will be calculated in case an injured worker goes back to work.

I think we spelled out different incidents of people who, after being temporarily totally disabled for a certain time, were unable to go back to their original work and were forced to get a different type of employment at a lower rate. If the worker is injured again and gets full compensation, the board will calculate the average earnings of the different employments the injured worker went though. Am I correct?

Mr. McClellan: You will have to repeat it. He was not paying attention.

Hon. Mr. Ramsay: I apologize to the honourable member. I was --

Mr. Lupusella: Did the minister say that was the case or was he not following the case?

It is a case where an injured worker has been under the Workers' Compensation Board on a temporary total basis and received a lump sum payment and eventually a pension and so on. He could not go back to his original work where he would make the same amount of money. He has to go to a different employment situation where the earnings rates are completely different from the original accident situation.

Let us think for a moment about the injured worker facing a new injury so that he has to get full compensation for another period. It is my understanding that the process which is going to be in place is the same as the one that is in place now. The board will calculate the average earnings based on the different employment the injured worker went through, even though he was unable to earn the same amount of money as in the original accident situation.

I think that is the case, unless the minister says otherwise.

Hon. Mr. Ramsay: My understanding is that is the case.

Mr. Lupusella: That is the case.

I think the concern raised by my colleague the member for Nickel Belt is that injured workers will be penalized in relation even to the new formula of 90 per cent of net, because they are unable to earn the same amount of money as in the employment where they were originally injured. There is another penalty. If they are forced to get a different type of employment where the employers pay differently from the employment where the original accident occurred, there is a penalty involved.

5:10 p.m.

I think the concern raised by my colleague the member for Nickel Belt is not really covered under subsection 43(7) because there is an extra penalty imposed on injured workers who are unable to go back to the same or previous employment where they were injured.

With the greatest respect, my colleague raised an important point. The minister made the statement that my colleague's concern was covered under subsection 43(7). I think the minister is wrong. His concern is not covered under subsection 43(7) because injured workers will be penalized. I would like to have an explanation. My colleague is not pleased with the minister's response.

The Deputy Chairman: The member for Nickel Belt has the floor.

Mr. Laughren: I understand what subsection 43(7) does vis-à-vis how one computes the earnings; however, I am not certain about the whole question of someone in a high-paying job and I think this is what is bothering my colleague the member for Dovercourt.

A worker could be earning $35,000 or $40,000 a year on construction or bonus mining. If that person is on unemployment insurance, what happens when a claim recurs? If the old injury becomes reactivated, for whatever reason, how is the compensation computed? Surely the minister would not agree that the person's earnings should be based on his unemployment insurance benefits, or on some other kind of work not related to the work he was doing at the time of the injury.

This is what is bothering us and why we are not happy to let the minister get away with his rather general statement that subsection 43(7) looks after the problem. Subsection 43(7) does not look after the problem. When one lives in a community where there is a great deal of unemployment, there are a lot of these kinds of problems. They are not resolved by a reference to subsection 43(7). It simply does not deal with the problem.

We are asking the minister to change this section so it would be clear that if there is a recurrence, even though the person may not be working or may be working at a job that pays a lower rate, the rate at which compensation is computed would be based on the higher level, if the original accident occurred when the worker was earning that higher income.

This is the kind of problem we are faced with and the kind of answers we are seeking.

Hon. Mr. Ramsay: In my interpretation of the last part of the question of the member for Nickel Belt, my answer would be yes; the worker would go back to the rate he is suggesting it should be at. This is what I am saying.

Mr. Laughren: The only reason I am rising again is because I would like the minister to be quite definitive about that. I am sure it will be very important in future rulings.

Hon. Mr. Ramsay: If the member will stand this down for a few moments, I will prepare a definitive statement that I hope will cover it to the member's satisfaction.

Mr. Lupusella: I will quote from subsection 43(7) in the present act. "The compensation payable for such temporary disability shall be paid on either the average earnings at the date of the accident or the average earnings at the date of the most recent employment of the worker calculated in accordance with this act, whichever is the greater."

My dilemma in interpreting this subsection is the following: let us suppose a person has been working on a construction site at $40,000 a year and, as a result of an accident which caused a permanent disability, has undertaken a different type of job in the range of about $20,000 a year. Let us say he is faced with either a recurrence or another accident, but has been working for $20,000 a year for three years' time. Under this subsection, the calculation of the temporary total disability benefits will be based on the earnings at the date of the most recent employment of the worker. Unless the minister is going to qualify the situation the interpretation can go in both directions.

Mr. Mancini: Mr. Chairman, I agree entirely with what has been said by my colleagues as far as what subsection 43(7) means. It very clearly means that if you suffer a second injury that is completely related to the first injury, and if you had to take a different job because the job at which you had the first injury became too difficult to do, then this certainly is a further penalty on the injured worker.

Not only has an injured worker had to quit or remove himself from the original job he might have been doing for a great number of years and in which he had an enormous amount of expertise; not only would he have had to remove himself from an environment in which he may have trained and looked forward to spending his entire work life; not only is he being penalized in that aspect because of his injuries -- and of course that is understandable; one cannot make one's body do physical things it is incapable of doing -- but once such an individual finds a different place of employment and the old injury recurs, then absolutely the rate has to be compensated at the rate of the original injury.

It does not take anyone learned in the law to understand what this section means. It is very clear. It could have been written in plain English it is so clear, so I have to join my colleagues in their opposition to this subsection.

The only comment I would want to make is that I did not think we were on subsection 43(7) yet. I thought we were still on section 40, so while this conversation has been extremely stimulating and very important, maybe we can get back to section 40 and deal with subsection 43(7) when it comes. Since the Chairman has allowed this wide-ranging debate at this time, I felt it to be appropriate for me also to interject my views.

Hon. Mr. Ramsay: Mr. Chairman, with respect, I think we have been talking about two different circumstances.

Mr. Mancini: Apples and apples, right?

Hon. Mr. Ramsay: No. The member for Dovercourt has been arguing that a worker who was once injured and then returns to work at lower wages will be penalized if he has a new accident, because his or her benefits will be calculated on the basis of his or her lower wage position. That is true, but that is a new accident. In other words, the first time around he injured his leg and the second time around on the job with the lower wage he has injured his arm, then that is a new accident.

5:20 p.m.

However, if the worker was injured and later returned to work experiencing a recurrence -- that is what I believe the member for Nickel Belt has been talking about -- then the worker is compensated on the basis of his or her higher pre-injury earnings. That is an advantage to the worker.

Mr. Mancini: My comments address the same injury. For example, if a person injures his knee or shoulder and because of the type of work he is doing he has to find a different type of employment, and if at this new employment -- I am talking about the same injury, the shoulder, arm, or whatever part of the body was injured -- there is a recurrence of the first injury, it should then be compensated at the original rate. If that is in the act, I am glad I was able to clarify that. A new injury to a different part of the body is a new injury.

Mr. Lupusella: I raised a point, about which the minister agreed I was right, which is not contemplated in the act. We are penalizing, and the minister agrees with me, all the injured workers who were earning more money but, as a result of permanent disability awards, were unable to go back to their original work and who were faced with a new accident. If they are making less money than when the original accident occurred they will be penalized because under this act the board will take into consideration the earnings at the date of the most recent employment of the worker.

There is no disagreement about what Bill 101 will do. It will penalize all injured workers who will be receiving a permanent disability award from the board when they go to a completely different type of employment because they cannot do the same type of job they were doing at the time of the original accident. If there is a new accident, injured workers will be penalized as a result of subsection 43(7). Am I correct?

Does the minister not feel compelled to agree they should not be penalized and that this subsection should be amended to take into consideration the cases of injured workers who are permanently disabled and recognized to be so and unable to perform the same type of job? If they must take a different job which will pay them less, does the minister not think they should not be penalized?

Does he not feel compelled to agree that the law should be drafted in such a way that in a clear-cut case of an injured worker who is permanently disabled and earning less than when the previous accident occurred and who has a new accident, he should not be penalized? Does he not feel compelled to agree the law should be changed?

Mr. Chairman: All those in favour of Mr. Lupusella's amendment to subsection 40(1) of the act will please say 'aye."

All those opposed will please say "nay."

In my opinion the nays have it.

Vote stacked.

Mr. Lupusella: We understand the complexity of this bill. The committee spent a lot of time debating the law. I would like to convey a clear message to the minister. This law will not be changed for at least 43 years. We are finding loopholes now within the context of the law. I think the minister is calling workers to demonstrate in five or six years' time, as a result of the inefficiency of this bill and the problems it will cause injured workers, such as the particular section I brought to the attention of the House just a few minutes ago. At any rate, I think what the minister is doing is unfair and he should change his mind.

I have another amendment that is related to clause 40(2)(a).

Mr. Mancini: I may be wrong,s but I wanted to add a new section 44.

Mr. Chairman: We are not that far, with all due respect. We are dealing with subsection 40(2).

Mr. Mancini: I am sorry. I must have been confused with all the debate we had on section 43.

Mr. Chairman: There is a similarity here.

Mr. Lupusella moves that clause 40(2)(a) of the act, as set out in section 11 of the bill, be amended by deleting the words "90 per cent of."

Mr. Lupusella: Mr. Chairman, my colleague the member for Nickel Belt made very clear the reasons we are planning to delete these words in the proposed clause 40(2)(a). Again, the particular situation I have just described is not contemplated in this clause, even though we are dealing just with the issue of the 90 per cent. Of course, we are favouring 100 per cent.

I do not want to repeat the arguments, but in subsection 40(2) there is a clear indication of what we are dealing with. It says:

"Where temporary partial disability results from the injury, the compensation payable shall be,

"(a) where the worker returns to employment, a weekly payment of 90 per cent of the difference between the net average weekly earnings of the worker before the injury and a net average amount that the worker is able to earn in some suitable employment or business after the injury."

The minister has an opportunity to elaborate on the concern I raised before about injured workers who, even under this particular section, are faced with a permanent disability and who are unable to return to the same type of employment or business after the injury. The principle of the 90 per cent has been stated. I am particularly concerned that the minister consider at this point not only the people who are faced with the temporary partial disability that results from an injury, but also those who are faced with a permanent disability that results from an injury.

Regarding the concern that was raised on subsection 43(7), there are particular repercussions we are going to be dealing with from now on in different subsections.

Why are we dealing with the issue of penalties? This is another penalty that has been imposed on injured workers.

5:30 p.m.

Mr. Chairman: All those in favour of Mr. Lupusella's motion will please say "aye."

All those opposed will please say "nay".

In my opinion the nays have it.

Vote stacked.

Mr. Chairman: Mr. Lupusella moves the deletion in subsection 40(3) of the words "In determining the amount to be paid under clause 2(b), the board shall have regard to any payments the worker receives under the Canada pension plan."

Mr. Mancini: We had a lengthy debate the other day concerning the principle of deducting Canada pension plan payments and integrating them with an award or awards received from the Workers' Compensation Board. The Chairman will remember the conversation we had in the Legislature and the strong words we used to inform the minister how disappointed we were that he was moving forward to integrate those payments.

This section deals with that concern. We informed the minister the other day that under no circumstances would we support, assist or be co-operative in his request for putting forward this integration and making it law.

Therefore, we cannot support this section. We have to support the principle espoused in the amendment, which is concurrent with the views and the motion I put forward the other day to delete subsection 36(13).

Mr. Lupusella: I do not want to make the argument on the Canada pension plan because it was clearly stated during the committee stage by my eloquent friend the member for Nickel Belt.

There is reference to the whole spectrum of rehabilitation programs that are currently applied by the board. They will be in place as a result of the implementation of Bill 101. There is reference to clause 40(2)(b), which talks about the vocational rehabilitation program of the board. I would like to emphasize that when Bill 101 is implemented, if we are faced with the same programming structures that are in place now, the penalization program that will be implemented as a result of this bill and the present act, when injured workers fail to co-operate and therefore will not be entitled to receive further benefits covered by the present act and the new act, will be a great mistake.

In the past we had complaints that were raised before the board when it appeared before the standing committee on resources development to deal with the annual report of the activities of the board. We raised this concern when the resources development committee was appointed to review the contents of Bill 101 about how effective the rehabilitation program was at the board level, the number of people who were using the program and the way the board screened the co-operation of injured workers in order to receive certain benefits under the present or the new act, which will be almost the same.

The only new feature will be the amount of money, which differs in the old act and the new act. I think the procedures and the way the board will screen injured workers to determine whether they are co-operating with the vocational rehabilitation department will be the same.

I have this concern because I had an opportunity to review the contents of a survey -- I am not sure whether it was done by the minister or the board, so the minister may correct me -- that was sent to each employer across the province. The questions I saw in this survey related to the length of time the claim was supposed to be paid under the present act. The employers were asked whether they thought the length of time the claim was paid was too long, too short or all right. I think that is wrong.

To determine the length of time of a claim, we have in place a structure based on medical grounds under the present act or the new act. There was no division of the question to determine whether the length of time of the claim related to a person who was receiving temporary total disability benefits or to an injured worker receiving a pension or a supplement pension on top of the pension. No such distinction was made. The way the question was raised in this survey, I think employers across the province eventually gave an answer either to the minister or to the board, whichever initiated this survey.

I had the impression that the length of time of a claim will be decided by the board. We know for a fact the length of time of a claim is decided by medical information or information that is provided to the board to substantiate the nature of the claim. They talked about the assessment, the premium, how the board was operating and so on. I have to fault this survey because I think the way the questions were raised was interesting.

5:40 p.m.

If we go to the contents of this section and why we are deleting certain contents of the sub-clauses, it is because the dollars and cents are really based on the old system that the board operates and has operated for so many years. Even though there are injured workers who are co-operating with the rehabilitation department and its officers, the board has to find out whether they are spending a lot of money on behalf of injured workers or whether they have to refrain from spending a lot of money for fear the premiums will have to be increased in a subsequent year.

I brought a few cases to the attention of the committee that clearly indicated injured workers were co-operating with the board and the rehabilitation department and yet their supplement pensions had been denied. Of course, the board will find different ways in which to identify injured workers who are failing to co-operate or who are not available for medical or vocational rehabilitation.

Eventually the board may tell them to apply for Canada pension plan benefits, or officers may ask such simple questions as, "How do you feel today?" If the injured worker answers that he has a lot of pain, pain that justifies the permanent disability award given to him, then this is an excuse to rationalize that the injured worker is failing to co-operate or is not available for a vocational rehabilitation program.

Another point I wish to focus on is a new feature of the bill, spelled out in clause 45(5)(a), which says the board may supplement the award unless the worker "fails to co-operate in or is not available for a medical or a vocational rehabilitation program which would, in the board's opinion, aid in getting the worker back to work."

In the past we have had lengthy discussions about the medical or vocational rehabilitation programs for injured workers. If I recall correctly, there was an implication that if an injured worker refuses to have surgery, then that is a refusal to rehabilitate himself. Thus he is unable to co-operate with the medical branch of the board, and this will be an excuse for the board to reduce benefits to the injured worker or not give him extra benefits.

I want to make clear to the minister that in cases of back injuries, for example, even the medical professional realizes that in certain instances there is no apparent need to have surgery because the surgery per se might cause the condition of an injured worker's back to deteriorate. Even though we recognize this pitfall, which has also been recognized by the medical profession, if the injured worker refuses to have surgery, then under this subsection the board will have the opportunity to reject further benefits on the grounds that the injured worker is refusing to rehabilitate himself or to improve his physical condition.

We do not have any assurance on the part of the minister that the board will not use this subsection against injured workers across Ontario to reduce their benefits. As I stated before, the principle that is the basis of the operation of the Worker's Compensation Board is money, dollars and cents. The board places great emphasis on a reduced budget, and someone has to pay the price for that. Who is paying the price? It is the injured workers across Ontario.

I want to go back to the issue of marginal improvements and so on. There are some marginal improvements in the bill. I think the theory behind it is money and, as the member for Nickel Belt has stated on different occasions, he has lost faith in the system. I have lost faith in the system too.

Hon. Mr. Ramsay: Mr. Chairman, the honourable member has suggested, as he did in committee, that the board or the ministry conducted a survey of the employers of this province. I reported to him at the committee stage, and I will report again for the record, that no survey was commissioned by either the board or the ministry.

Mr. Lupusella: Mr. Chairman, the minister says no survey was conducted by either the board or the ministry, but tomorrow I will bring a copy of the survey; then the minister will have to launch an inquiry into the defensive position he has taken that neither his ministry nor the board initiated a survey, because someone printed a survey to be sent to the employers across Ontario.

Mr. Haggerty: Mr. Chairman, I want to comment on section 40 of the act, which we are dealing with. I want to direct a question to the minister.

Mr. Chairman: Is it on subsection 40(3)?

Mr. Haggerty: It deals with the whole section; let me put it that way, because we are dealing with income. Correct?

An hon. member: The income section.

Mr. Haggerty: That is right, the income section, which deals with the degree of disability.

I notice it refers to "90 per cent of the worker's net average earnings before the injury so long as temporary total disability continues." I question the use of net average earnings. In looking at the calculations I have here, if we compare 90 per cent of net income with 75 per cent of gross income, a person earning $20,000 would receive, on the basis of 90 per cent of net income, $14,074 in round figures; if he were under the 75 per cent of gross income, his income would be $15,000.

If I go down the table I have before me, after all the deductions are taken off -- Canada pension, union dues and all the other fringe benefits -- you end up with the net income. On the basis of 75 per cent of gross income -- that is, on the maximum that he earns -- he would generate more income on that factor alone under the old formula, 75 per cent of gross income.

If we accept this amendment, it means the injured worker, even on permanent disability, permanent partial disability or temporary disability, would be losing income because of it. There is a disadvantage when you take the level of 90 per cent of net income. If it were based upon the old formula, injured workers would actually be much farther ahead.

Has the minister done any analysis in this area? He is shaking his head. I guess he agrees with my comments.

Why would we be moving in this direction? I thought there was supposed to be some benefit to the injured worker in moving to net income, and there is not.

Hon. Mr. Ramsay: There is.

Mr. Haggerty: The minister says there is, but the figures I have before me do not work out that way.

Hon. Mr. Ramsay: Mr. Chairman, the 90 per cent level of net income replacement more accurately reflects a worker's disposable income than does the standard of 75 per cent of gross, which penalizes low-income workers and takes no account of the number of a worker's dependants.

With the greatest of respect, we discussed this issue for many days in committee and we have discussed it for four days at this stage of the proceedings. We have a pretty good bill here. I am starting to have serious reservations about whether we will get it through before the end of the session. If we do not get this through, then four years of work and effort and a pretty damned good bill here are going to go down the drain. If that is what the members want, then that is it.

5:50 p.m.

Mr. Mancini: Mr. Chairman, on a point of order: I do not want the minister to leave the impression here in the House, and on the record, that because the opposition parties had a contribution to make with regard to Bill 101 the bill might not be passed for Christmas and four years of work might go down the drain. I want the record to show that we waited for a long time to have Mr. Weiler and all the other people do their work.

Mr. Chairman: Order. That is not a point of order. The member will have to save it for the debate.

Mr. Mancini: It is not right for the minister to blame the opposition members for this bill not passing. We can schedule extra time here in the House if this extra time is needed.

Mr. Laughren: Mr. Chairman, I think the minister is being totally unfair and unreasonable. He need not stand in his place and wave a big stick at the opposition, implying that if we do not hurry up with this debate he will pull the bill in an act of petulance and four years of work will go down the drain. That is exactly what he has said.

Hon. Mr. Ramsay: You are full of it.

Mr. Laughren: Mr. Chairman, if I can quote the minister, with all due respect, I am not full of it. I am not misquoting the minister. What the minister said was that four years of hard work would go down the drain. I would call that a threat to the opposition to pull the bill. How else could it be interpreted? We are attempting to work our way through this bill. We can do a much better job without the minister's temper tantrums.

Mr. Chairman: All those in favour of Mr. Lupusella's motion will please say "aye."

All those opposed will please say "nay."

In my opinion the nays have it.

Vote stacked.

Mr. Lupusella: Mr. Chairman, I have another amendment to delete in the proposed subsection 40(3) the words: "In determining the amount to be paid under clause (2)(b)" --

Mr. Chairman: Order. I believe we just voted on that one. We are moving to section 41. We just dealt with subsection 40(3).

Mr. Lupusella: Yes.

Mr. Chairman: Now we are talking about section 41 of the act. Is the motion to delete the full section 41?

Mr. Lupusella: The motion is to delete in the proposed subsection 40(3) the words: "In determining the amount to be paid under clause (2)(b), the board shall have regard to any payments the worker receives under the Canada pension plan".

Mr. Chairman: As the member knows, we have just dealt with that. That has been stacked for 10:15. I believe the member has indicated to the chair that he proposes a further amendment to section 41 as set out in section 11 of the bill.

Mr. Lupusella moves that section 11 of the bill be amended by deleting the proposed section 41 of the act.

Mr. Laughren: Mr. Chairman. I wonder if I could speak to the amendment moved by my eloquent, dedicated, knowledgeable colleague the member for Dovercourt. I will be brief. I was not trying to deliberately provoke the minister a few minutes ago.

Mr. Martel: He was out fishing; he got a big strike.

Mr. Laughren: I was not. I was simply making a point. I was not trying to provoke him.

Section 41, which my colleague has moved to delete, and subsection 43(3) show the minister's true colours and those of the government caucus. Section 41 puts a ceiling of $31,500 on the earnings on which compensation is to be paid. I would like to have the minister or any government member stand in his place and tell me why there should be a ceiling on earnings when one is computing compensation.

Surely to goodness, if a worker earning $25,000 can get 90 per cent of his net, then a worker earning $35,000 a year should get 90 per cent of his net. The minister should tell me how he justifies saying that a worker earning $35,000 a year should not have his earnings computed in the same way as a worker earning $25,000.

It is so illogical that it defies description. The minister has raised illogic to an art form. He cannot tell me there is a difference in principle. Let me use another example. A worker who earns $30,000 a year gets 90 per cent of his average net earnings and a worker who earns $32,000, $34,000, $35,000 or $40,000 does not. How in the world does the minister justify that? There are two miners working underground side by side. One miner is on bonus and the other is not; the one on bonus is penalized and the other one is not. How in the world does the minister justify that?

Those people should never talk to me about the work ethic when they sit over there and penalize workers who are at higher levels of income, get injured and have an increased financial penalty put on them, more than on workers earning less than $31,500. They should not talk to me about the need to increase efficiency and productivity in the work place. It is all a lot of hokum. I have never seen such hypocrisy in the Conservative Party.

We debated this in committee, and the minister did not have a single logical reason as to why he has that ceiling in the bill. We know it represents a small percentage of the number of workers we are talking about, and yet he persists in imposing that penalty. There is no logical reason for it.

If the minister sometimes sits over there and shakes his head and implies we are dragging this debate on too long, I ask how in the world does he expect us, as an opposition party, to sit back and watch this kind of nonsense continue under a compensation system in Ontario where we impose an arbitrary penalty on people who earn a higher income and get injured on the job? There is no logical reason for it. However, I will sit down and await a further attempt by the minister to give us one.

Mr. Chairman: Do any other members wish to comment? If not --

Mr. Laughren: Wait a minute, Mr. Chairman. If the minister is not going to give me an answer, I will have to continue.

This bill came back from committee to the House for us to have a clause-by-clause debate with the minister on the various sections. If the minister is determined to sit there and stonewall because he has no answers when the opposition raises legitimate concerns, he can hardly expect us to engage in a nice debate to facilitate fast passage of the bill. We will not play that game with him. As opposition members in this province, we have a right to have answers to the questions we raise, and I think this is a question of substance.

The minister surely has an obligation to rise in his place and tell us why a worker earning $30,000 gets 90 per cent of net and a worker earning $40,000 does not. I do not know the answer, but it is not my bill. If I were bringing in a bill such as this, I would be prepared to stand in my place and tell the opposition and the people of Ontario why I was practising that discrimination against people in the work place.

I believe there is enough of a penalty on injured workers without this double jeopardy. The minister asks for the heavy water he gets in this chamber when he engages in this kind of stonewalling.

Mr. Chairman, I ask you, as a man of reason and considerable depth, at least to suggest to the minister that he has an obligation to respond to members of the opposition who raise legitimate concerns concerning this bill.

I see the minister has no intention of engaging himself in the debate. That is incredibly arbitrary and high-handed. I suppose when he has no answer, he feels it is best not to try to give one. For that reason, we will be back on this section the next time the debate comes up.

On motion by Hon. Mr. Ramsay, the committee of the whole House reported progress.

SUPPLEMENTARY ESTIMATES

Hon. Mr. Wells: Mr. Speaker, I have a message from the Lieutenant Governor, signed by his own hand.

Mr. Speaker: The Lieutenant Governor transmits supplementary estimates of certain additional sums required for the services of the province for the year ending March 31, 1985, and recommends them to the Legislative Assembly. This is signed by John B. Aird, Toronto, December 4, 1984.

The House recessed at 6:01 p.m.