Assemblée législative de l'Ontario

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

CONTENTS

Thursday 17 June 1993

Insurance Statute Law Amendment Act, 1993, Bill 164

STANDING COMMITTEE ON FINANCE AND ECONOMIC AFFAIRS

*Chair / Président: Johnson, Paul R. (Prince Edward-Lennox-South Hastings/

Prince Edward-Lennox-Hastings-Sud ND)

Vice-Chair / Vice-Président: Wiseman, Jim (Durham West/-Ouest ND)

Caplan, Elinor (Oriole L)

Carr, Gary (Oakville South/-Sud PC)

Cousens, W. Donald (Markham PC)

Lessard, Wayne (Windsor-Walkerville ND)

Jamison, Norm (Norfolk ND)

*Kwinter, Monte (Wilson Heights L)

*Mathyssen, Irene (Middlesex ND)

*North, Peter (Elgin ND)

*Phillips, Gerry (Scarborough-Agincourt L)

Sutherland, Kimble (Oxford ND)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

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

Harnick, Charles (Willowdale PC) for Mr Cousens

Huget, Bob (Sarnia ND) for Mr Wiseman

Klopp, Paul (Huron ND) for Mr Jamison

Owens, Stephen (Scarborough Centre ND) for Mr Sutherland

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

Also taking part / Autres participants et participantes:

Endicott, Eric, legal counsel, Ministry of Finance

Fisher, Julia, legal counsel, Automobile Insurance Review

Halpert, Art, senior policy analyst, Ontario Insurance Commission, Ministry of Finance

Owens, Stephen, parliamentary assistant to Minister of Finance

Clerk / Greffière: Grannum, Tonia

Staff / Personnel:

Beecroft, Doug, legislative counsel

Gottheil, Susan, legislative counsel

The committee met at 1009 in committee room 1.

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

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

The Chair (Mr Paul Johnson): Order. I call the standing committee on finance and economic affairs to order. The first thing I would like to do today as Chair of the committee is read into the record a motion moved by Mr Charlton on June 8. It was passed on June 8 in the legislative chamber. Indeed, before I say that, I would like to say that this motion will guide the committee through the business at hand today. I'll read the whole motion. It is as follows:

Mr Charlton moved:

"That pursuant to standing order 46 and notwithstanding any other standing order or special order of the House in relation to Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters, the standing committee on finance and economic affairs shall complete clause-by-clause consideration of the bill on the first regularly scheduled meeting of the committee following passage of this motion. All proposed amendments must be filed with the clerk of the committee prior to 12 noon on the abovenoted day. At 5 pm on that same day, those amendments which have not yet been moved shall be deemed to have been moved and the Chair of the committee shall interrupt the proceedings and shall, without further amendment or debate, put every question necessary to dispose of all remaining sections of the bill and any amendments thereto. Any divisions required shall be deferred until all remaining questions have been put and taken in succession with one 20-minute waiting period allowed pursuant to standing order 128(a). That the committee be authorized to continue to meet beyond its normal adjournment if necessary until consideration of clause-by-clause has been completed. The committee shall report the bill to the House on the first available day following completion of clause-by-clause consideration that reports from committees may be received. In the event that the committee fails to report the said bill on the date provided, the bill shall be deemed to be reported to and received by the House."

I read this into the Hansard so that all the members of the committee know exactly how the proceedings of this committee will be for today and so that all the members understand exactly how the meeting will be today.

Mr Stephen Owens (Scarborough Centre): I have two items that I would like to bring to the attention of the committee.

The first item is one that I regard as good news.

As I've indicated throughout the committee process, there has been ongoing consultation with members of the opposition, with the industry, with practitioners in the private bar, with consumers, with victims and we have come to an agreement with respect to the issue of the deductible. Currently, legislative counsel is feverishly working on drafting language so that it can be presented to the committee. What I would request is that at approximately 10:30 we would recess for 45 minutes so that we can allow leg counsel to complete the other drafting. Hopefully, within that period we'll be able to come back with a good compromise amendment, if that's not a problem for committee members.

The Chair: I believe that's not a problem and that we have an agreement with all parties with regard to that.

Mr Owens: The second issue that I would like to raise with the committee is that I would like to request unanimous consent to have the following amendments, which may be considered as being out of order, considered, and that's clauses 12.1, 29.1, 30, 35.1 and 51.

The Chair: Do we have unanimous consent with regard to Mr Owens's motion?

Mr Charles Harnick (Willowdale): Can I hear what his motion is?

The Chair: You certainly can.

Mr Owens: I asked for unanimous consent that the following amendments, which may be considered out of order, be considered and I've listed 12.1, 29.1, 30, 35.1 and 51.

The Chair: We have unanimous consent. They will be considered.

We will proceed with the business at hand. I would like all the committee members to know that on their desks today are updated packages with regard to how we will proceed and all the sections of the bill I think are before them.

We are now on subsection 12(8.1) of the bill. Apparently we had an amendment read into the record last time.

Mr Owens: That's right, Chair. I had moved an amendment respecting 12(8.1) and when we last left the committee we were discussing this clause as to its benefit to consumers with respect to the protection of benefits over the long term. What we understand to have been somewhat problematic is that people who are in a fairly serious requirement for money will assign their benefits, and we are simply looking at a process that will protect consumers so they will not be able to be pressured into signing over their claims to future benefits. This is something that we heard during the hearings and we have felt that this is a motion that's clearly needed in terms of consumer protection.

The Chair: Is there any debate or concerns about this motion? Shall the motion carry? Carried.

Mr David Tilson (Dufferin-Peel): On a point of order, Mr Chairman, or perhaps it's a point of clarification: A number of sections were stood down.

The Chair: That's correct, Mr Tilson.

Mr Tilson: When are we going to deal with those?

Mr Owens: Chair, if you don't mind, I think the process that other committees have undertaken is that we move through to the end of the bill and then come back to the sections that have been stood down.

Mr Tilson: I understand that. The problem is we've got a time allocation motion, Mr Owens, and after today it's all over. I think to properly understand the bill we should be going through an order, and I believe that we should return to those other sections, much of which depended on information which the staff was to obtain and bring back to the committee. I think it would be more appropriate, Mr Chair, to return to those sections as opposed to going ahead with new sections. That information, presumably within the last week, is now available, and hopefully we'll be in a position to deal with those sections now.

The Chair: I understand, Mr Tilson -- and I may not be accurate, but I understand -- we are going to go through the bill clause by clause and at that point later today those motions that were stood down will be dealt with, and I think that --

Mr Tilson: Why can't we deal with them now?

The Chair: Because, as I said, as I understand it, we are going to continue through the bill clause by clause until that time.

Mr Tilson: Because Mr Owens says that? Why can't you make some decisions?

The Chair: If we have unanimous consent to agree with Mr Tilson's request, we can certainly do that, but --

Mr Tilson: Well, normally you start at section 1, you move to section 2, to section 3. You don't go ahead with numbers 10 and 11. You start with the beginning of the bill.

The Chair: That's correct, Mr Tilson. However, I think you would agree that we haven't gone through this bill particularly expeditiously, and that may be one problem. But on the other hand, I want to say too that we have stood some motions down and we do have some amendments to deal with.

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The usual procedure is to go through the bill clause by clause, and we did have an understanding that we would deal with these stood-down motions some time later in the day. If it's an issue that you want to deal with, then certainly if we have unanimous consent, I suspect that we could indeed do that, Mr Tilson. But that's not as I understand the proceedings to happen.

Mr Tilson: As I say, I find it strange that we've had a week's lapse, and I presume the staff have the information available. If they undertook to make it available, there's no reason why we can't return to those sections to better understand the rest of the bill. You don't jump all over the place; you go through with some sort of organization. That's been the problem with this whole thing. We've been jumping all over the place.

The Chair: We are going through clause by clause. I think that's clear. We have --

Mr Tilson: Why can't we start at section 1 and go through the bill?

The Chair: If you'd just bear with me, we're going through the bill clause by clause. We have stood down some sections of the bill, some amendments, and at some point in time they will be dealt with. We are going through clause by clause right now, and we want to do this in --

Mr Tilson: We've stood down sections 3, 7, 8, 11 and 12. That's a lot of sections. Why can't we go back to section 3?

The Chair: Because we are proceeding with the bill now, Mr Tilson, and as we have been proceeding with the bill, those sections have been stood down. At a point later today, we will indeed deal with those sections of the bill.

Mr Tilson: I have your undertaking to do that, do I, Mr Chairman?

The Chair: Everything will be dealt with before the day is complete, Mr Tilson, or maybe tomorrow.

Mr Tilson: Thank you for your assistance.

The Chair: We are now on subsection 12(9) of the bill. Any discussion about subsection 12(9) of the bill? Seeing no discussion, shall subsection 12(9) of the bill carry? Carried.

We are on subsection 12(10) of the bill and there is an amendment. Mr Owens.

Mr Harnick: What did we just pass?

Mrs Irene Mathyssen (Middlesex): Subsection 12(9), Charles.

Mr Harnick: I'm sorry, Irene, I just can't keep up to you.

Mrs Mathyssen: There are few who can, Charles, but try to make the effort.

The Chair: We are now on subsection 12(10) of the bill. We have an amendment, a government motion.

Mr Owens: Chair, if we could just take a five-minute recess, we have discovered that there may in fact be a numbering problem with respect to the next section of the bill.

Mr Tilson: That's a new one. Why not? They got their numbers mixed up. They want an adjournment.

The Chair: Before we have this five-minute recess -- no, we'll take a five-minute recess in the interests of --

Mr Harnick: What section are we up to now?

The Chair: We're up to subsection 12(10).

Mr Harnick: We're at 12(10) now. Is that an amendment?

The Chair: Yes, 12(10) is an amendment.

Mr Harnick: What page is that on our little amendment pages?

Mr Tilson: I'll bet you guys are so glad you're rushing this through.

Mrs Mathyssen: Page 8B, Charles.

Mr Tilson: Can't even get your numbers straight.

The Chair: In the package before you, Mr Harnick, it's numbered 8B. It's subsection 12(10).

Mr Harnick: Got it.

The committee recessed from 1024 to 1032.

The Chair: I'm calling the committee to order.

Mr Monte Kwinter (Wilson Heights): Mr Chairman, on a point of order: Earlier this morning the parliamentary assistant asked for unanimous consent that we recess at 10:30. We have just taken a recess that's taken us to 10:30, and I don't understand why we have recessed so that we can just then recess.

The Chair: If I can just say this, Mr Owens did ask for a recess for five minutes because there was something he needed to clarify, and unfortunately the committee members all bailed out of the room, so we were a little delayed in getting back as quickly as I would have liked, and that's unfortunate. However, we did have unanimous consent to recess at 10:30, and I understand that it's beyond that now.

Mr Owens: I think that in terms of the preparatory work that's going on with leg counsel work, I'm not quite ready to recess yet. What I would like to do, with the consent of the committee, is to continue where we left off. I understand that we want to accommodate Mr Kwinter in terms of his speaking requirements in the Legislature, so we're trying to balance two competing needs here. So if we could just continue, if that's all right with Mr Kwinter. It's not our intention to delay unnecessarily. We would like to get the good work done.

The Chair: Thank you. We are at subsection 12(10), paragraph 28.1. Is there any discussion or concerns with regard to that?

Mr Owens: Just by way of explanation, I'll ask Mr Halpert from the Ontario Insurance Commission.

Mr Art Halpert: The purpose of this section is to allow the commission to not require the sellers of certain types of insurance to need licensing. The specific type of insurance that we're looking at is automobile breakdown insurance, which is customarily sold by motor vehicle dealers.

The Chair: Thank you, Mr Halpert. Any discussion?

Mr Tilson: Why are we doing that?

The Chair: Why are we having discussion?

Mr Tilson: Why are we making the amendment?

Mr Halpert: Well, if you require, for example, an employee of an automobile dealership who wants to sell automobile breakdown insurance, which is of course something beneficial to his clients, to be licensed, then he has to take courses in general insurance, property and casualty insurance, automobile insurance and various other types in order to be licensed, and has to go through all the procedures, when in fact he's actually selling a very narrow type of insurance that doesn't require all this additional expertise that, let's say, a normal insurance broker or agent would require.

Mr Tilson: I must confess I'm not clear on that. One gets concerned when you start saying that. It may be fine. One gets concerned about whether or not the consumer is going to be properly protected if people who should be licensed are not, if that creates a problem with the consumer. You obviously are satisfied that the consumer will be protected.

Mr Halpert: That's our responsibility.

Mr Tilson: Maybe you can assure me that when you don't license someone the consumer will be protected. In other words, should people be selling this type of insurance who may not have the knowledge to sell that type of insurance?

Mr Halpert: This specific type of insurance deals largely with the specifics of what goes on in a car -- the engine -- what is covered, what isn't covered. They need a lot of expertise essentially in how a car runs. This is the type of detail that is covered by these third-party automobile breakdown insurance policies.

Mr Kwinter: I'd just like to comment on that provision. I understand what it is and I just think that as long as it is spelled out clearly in the regulations, what in fact is happening is that some of this insurance is not unlike a warranty in that if you get involved in offering extended warranty packages you're in fact offering insurance, depending on what the provisions of those warranty packages are.

I think it would be unreasonable to expect that anybody who offers a warranty should in fact be licensed and have to take the regular training as someone who sells a whole range of insurance. Just as long as it is not used as a way to get people to circumvent the requirement of licensing so that people who are selling independently are not tied to the fact that they are involved in the motor vehicle section, offering a warranty or an extended warranty, as long as that is clear, I have no problem with the provisions.

The Chair: Any further discussion? Shall section 12(10), paragraph 28.1, carry? Carried.

We move now to subsection 12(10) of the bill, paragraph 28.2.

Mr Owens: I move that subsection 12(10) of the bill be amended by adding the following paragraph to subsection 121(1) of the Insurance Act:

"28.2 governing the sale and marketing of prescribed classes of insurance to members of a group, including prescribing and regulating qualifications for membership in groups."

The Chair: Any discussion? No discussion. Explanation?

Ms Julia Fisher: Sure. This is a companion amendment to paragraph 35.1, which removes the prohibition against offering special rates for automobile insurance to groups. This will allow us to then govern who's in the group and how the special group rates would work.

The Chair: Further discussion? Seeing none, shall the section carry? Carried.

Clerk of the Committee (Ms Tonia Grannum): Shall the amendment carry?

The Chair: Oh, I'm sorry. I've been corrected by the clerk. I should be saying, "Shall the amendment carry?" Carried.

We now come to subsection 12(10.1).

Mr Owens: I move that section 12 of the bill be amended by adding the following subsection after subsection 12(10):

"(10.1) Subsection 121(1) of the act is further amended by adding the following paragraph:

"33.1 governing the collection, use and disclosure of personal information by insurers or a class of insurers and, for that purpose, defining personal information."

This will authorize a regulation that will govern the use and disclosure of personal information collected by insurers in terms of how that information is used, for instance, in the claims settlement process. It's an issue with respect to the protection of privacy of the insured.

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Mr Harnick: Will this in any way govern what an insurer is entitled to obtain by way of information in order to write a policy?

Ms Fisher: It's not likely to govern that. There are certain things now that the insurer cannot take into account, for instance, if you've got a sickness policy or a benefit policy apart from the automobile insurance, but no, it's not intended to do that.

Mr Harnick: It strictly governs the collection, use and disclosure of already determined categories of what they can ask for.

Ms Fisher: Of already determined categories of --

Mr Harnick: Of what an insurer's permitted to ask for.

Ms Fisher: And how an insurer is permitted to use information that it would have on somebody's health, for instance, where it's permitted to disseminate that and how.

Mr Harnick: Am I correct in saying, though, that this does not expand in any way what insurers are entitled to ask for on an application --

Ms Fisher: That's correct, yes.

The Chair: Thank you. Any further discussion? Shall the amendment carry? Carried.

Shall subsection 12(10), as amended, carry? Carried.

That brings us to subsection 12(11) of the bill, government motion, Mr Owens.

Mr Owens: Sorry, Chair, I move that --

The Chair: I've made a mistake again. I'd like to bring to the committee members' attention that we are actually on subsection 12(11), paragraphs 35, 36 and 36.1. Are there any discussions on this section of the bill?

Mr Tilson: Could you repeat that, please.

The Chair: Yes. We're on subsection 12(11), paragraphs 35, 36 and 36.1.

Mr Harnick: Are we not on this page here that says "Page 10, government motion"?

The Chair: That's next, Mr Harnick. I have a road map here, and it's a good road map, but I've gone on some trails here on a couple of occasions.

Mr Tilson: We've asked this each week, as to the status of the regulations, as to how they're coming. Perhaps the parliamentary assistant could tell us now when the regulations will be available, because all of these sections that we're passing deal with the regulations, which as of a week ago at least, didn't sound like they were even commenced.

Mr Owens: In answer to Mr Tilson's question, I'm not going to commit to a definitive time frame as to when the final draft of the regulations will be ready.

As I stated and restated ad infinitum with respect to the kinds of consultations that are ongoing around the regulation, it will be ready when, in our view, for the issues with respect to clarification and ensuring that we have the best reg possible and in terms of meeting that test, that will determine the release date. In terms of the actual when, I'm not going to commit to a release date, and in terms of the item under discussion here, we are certainly, again, not talking about the regulations per se.

Mr Tilson: Subsections -- I may be saying this wrong -- 36 and 36.1 talk about the risk classification system. I have made submissions to this committee, as have a number of other delegations, on the new proposed risk classification system. I wonder if you've had an opportunity, Mr Owens, to consider those representations that were made by myself, Mr Harnick and others as to the inequities of your proposed new risk classification system.

Mr Owens: I think the member asks a reasonable question. To provide the most reasonable answer, I can say that first of all, I'm not involved directly in the regulation-making process. We have ministry staff here who are involved in the regulation-making process.

In terms of listening to members like yourself, Mr Tilson, and Mr Harnick, as well as the kinds of representations that we've heard through the public hearings process from consumers and from the insurance industry, you can be assured that we have listened to all submissions. In terms of the final product, I'm sure that you, like myself, will be pleased.

Mr Tilson: I will be pleased?

Mr Owens: Absolutely.

Mr Tilson: I guess the problem is that I'm not pleased. I know the regulations haven't been written. I'm dealing specifically with the philosophy of a system that the industry indicated that it could solve itself and was indeed solving itself. The fears of instant increases of premiums to women and seniors are of grave concern.

Surely we in the opposition, the members of this committee, all members of this committee, including the government members of this committee, are entitled to hear what your philosophy is, having heard the very well-thought-out representations, particularly of the insurance industry and other delegations, to this committee, simply saying that the process is inequitable, that not only are rates going to go up because of the cost of a very expensive benefit package; rates are also going to go up now because of the Treasurer's budget.

Rates are going to go up by the budget, we know, because of a 5% tax on premiums. On top of all those increases, the rates of young women and seniors, specifically, are going to go up because of the new classification system, as has been explained to us.

I know other members of the committee are concerned about the increase in rates, because that's how this whole process got started. That's why the Liberals got into this whole mess in the first place, because of rates. We feared rates going up, so we got into OMPP. Your party, of all parties, was one of the stronger opponents of this whole philosophy. Now we have a minister who has stated over and over that rates will not go up. Now he's saying they're going to go up a little bit. They're going to go up maybe 4.5%. Then of course we have a Treasurer who says that on top of that, they're going to go up another 5%, notwithstanding the insurance companies saying they're going to go up 20% to 30%.

Now we have a new risk classification system that's going to be guaranteeing rates go up for certain individuals -- I list two to come to mind, namely, women and seniors -- to the benefit of younger males, where statistics show that the large percentage of motor vehicle accidents involve them.

I believe this committee is entitled to know, at the very least philosophically, where the government intends to go with respect to the preparation of regulations. I understand that the first set of regulations has been thrown out because no one could understand them, and now you're going to be preparing a new set of regulations. But on this topic which I've given you notice of -- I was ruled out of order, in fact, by the Chair of this committee when I started dealing with this subject in section 1, the definition section, and now we're dealing with the risk classification system again which guarantees the increase of rates, and I think that this committee is entitled to spend some time and must spend some time on the justification of all of that.

Mr Owens: I'd be pleased to respond, and although I'm at risk of being ruled out of order by the Chair because we're certainly not dealing with the regulation, I'm pleased to remind the member for Dufferin-Peel, Mr Tilson, that the risk classification system, the philosophical commitment, is that unsafe drivers should pay more than safe drivers.

I know that the member for Dufferin-Peel has a problem with that, but in terms of how we view the insurance-paying public, those who speed, those who drive while impaired, those who drive their cars carelessly should pay more than those who -- I'm sure the member for Dufferin-Peel is a careful driver. I'm sure he doesn't drive after a long day in the House, and a relaxing half-hour in his office, that he is a careful driver. In terms of those who are not as careful as the member for Dufferin-Peel, it's our intent to have them pay more in terms of setting up the road safety agency, in terms of introducing legislation with respect to graduated licensing. We have taken the concerns expressed by Mr Tilson and by members of this government as well into consideration.

In terms of your assertion with respect to rate increases, may I remind you one more time that the Mercer report talked about a 4.5% increased cost to the system. How the insurance companies choose to deal with that proposed cost -- and it's certainly not definitive at that point, as you're well aware; you've been sitting on this committee for long enough -- in terms of insurance companies having to come to the insurance commission and justify rate increases, that is a process that will have to be undergone.

I'm pleased to discuss the philosophy that it's our view that a bad driver should pay more. I think that the representatives of the industry sitting here today would certainly agree that in terms of covering their liabilities, bad drivers should pay more.

I think that in terms of the risk classification system, that is currently under discussion in section 36(1) of this bill, but it clearly meets those qualifications.

The Chair: We have an agreement to recess for 45 minutes, and I understand that the necessary arrangements have been made to proceed with that. I would just remind all members of the committee that if you have any amendments which you would like to file before this committee for this bill, they must be done before 12 noon.

We are now recessed for 45 minutes. We'll meet back here at 11:40.

The committee recessed from 1054 to 1144.

The Chair: I bring the committee to order. We are continuing with, of course, clause-by-clause, Bill 164. We were previously, before our recess, discussing subsection 12(11), paragraphs 35, 36 and 36.1. At that point in time, I believe we had come to a conclusion with regard to discussion on that section of the bill. Is there any further discussion?

Mr Tilson: Since we will be rising at 12 o'clock, I have a point of order to raise.

The Chair: Mr Tilson, on your point of order?

Mr Tilson: The reason for this adjournment has been that the members of the committee have had an opportunity to review a new proposed amendment dealing with threshold tests and other matters that the government has now introduced. It's quite an extensive amendment. It goes on for some six pages. I, quite frankly, in the 45 minutes that the committee adjourned for, have now read that section once. I have not had an opportunity to discuss it with anyone. I have my own thoughts on it. In fact, I'm hastily asking for clarification by some of the staff and others as to meanings of things.

I am concerned at the time allocation motion that was passed by this House, that it simply says that once today has gone by, it's all over and then we're into third reading and that's that. This is a very serious amendment, and I would like more time to -- if you could just let me finish, because I am getting to my request to this committee -- debate and discuss a very, very substantial amendment to this bill. I would like an opportunity to review it with the insurance industry, with the medical industry, with the legal industry and others who have spent a considerable amount of time reviewing and providing suggestions to this committee.

I'm not sure on the procedure. I would assume that notwithstanding that there has been a time allocation passed, it would seem to me, of course, the House can do anything it wishes as long as there's unanimous consent, and I would like this committee to consider directing you as Chair to go to the House leaders and ask for unanimous consent so this committee can discuss at the very least this section, this very substantial amendment.

The Chair: Thank you, Mr Tilson. I've heard enough to inform you that you're not in order.

Mr Tilson: Then I would so move --

The Chair: You've indicated some concerns you have, but at the beginning of the committee today I read to you the motion moved by Mr Charlton, and it is very clear as to how the committee will proceed today. Indeed, if amendments were to be presented before 12 noon today, then they would be considered in order and they would be dealt with in the afternoon sitting, obviously. Again, it says that at 5 o'clock this afternoon we will proceed with the vote on the clause-by-clause.

Mr Tilson: I'm quite aware of the time allocation.

The Chair: Then clearly you understand that what you've said is out of order -- a concern none the less, Mr Tilson, but out of order.

Mr Tilson: I'm quite aware of what the motion says. I would hope that --

The Chair: Then you would understand that your request is out of order.

Mr Tilson: It's not a request at this time. I'm inviting comments from other members of the committee for further time to study a very extensive and detailed amendment that's being put forward literally at the final second. I for one think it would be totally irresponsible of this committee to proceed with this new amendment without extensive discussions --

The Chair: I've heard enough, Mr Tilson. You're out of order and we will continue with clause-by-clause of Bill 164.

Mr Tilson: I can serve notice, Mr Chairman, that I'm going to be making a motion --

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

Mr Tilson: Mr Chairman, I beg your pardon. I'm entitled to serve notice --

The Chair: Mr Tilson, you're out of order. Your mike has been shut off. You understand the rules under which we're going to operate the committee today.

Mr Tilson: I'm entitled to serve notice to this committee, Mr Chair. Are you telling me I'm not entitled to serve notice in this committee that I wish to bring a motion to be debated this afternoon? Are you telling me that?

The Chair: No, I'm not telling you that. What I'm saying --

Mr Tilson: That's what I'm doing right now: I'm serving notice on you that I intend to bring a motion back to committee --

The Chair: Mr Tilson, you're out of order, and if you would like to --

Mr Tilson: I'm serving notice on you.

The Chair: You cannot raise a motion on a point of order. I wish you'd understand that. If you'd like to --

Mr Tilson: You've ruled me out of order, and I'm serving notice on you that I'm bringing a motion.

The Chair: If you would like to get my attention, Mr Tilson, so that you may have permission to speak -- because we do things in an orderly basis in committees -- I would be glad to grant you that.

Mr Tilson: Mr Chairman, I am simply serving notice on you that I intend to bring a motion this afternoon to deal with this issue, asking that the committee direct you as Chair to approach the three House leaders, that time be set aside that this committee can properly debate this very important amendment that's being introduced by the parliamentary assistant.

The Chair: If you would like to present a motion this afternoon, you're certainly entitled to do that.

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Mr Owens: Just to clarify the record, we have not yet introduced the said motion that Mr Tilson refers to. I think I'd like to give Mr Tilson some comfort, however, in terms of what I was going to propose for this afternoon, that we request unanimous consent that the amendment be read into the record. I understand that Mr Harnick would like to make some comments on the motion, and I'm sure Mr Phillips or Mr Kwinter would like to say something as well. There are approximately three and a half hours between now and the time that we reconvene this afternoon. This will give you some opportunity to consult with some of the people you have mentioned. I can assure you that this motion, this amendment, is a product of an extensive consultation with both the personal injury bars and the insurance companies and that it's our view that there is some reasonable level of satisfaction with that. So if that's satisfactory to you, Mr Tilson, we have approximately 10 minutes left and we can move into further discussion of this amendment this afternoon when we meet.

Mr Tilson: Mr Chairman, I appreciate what the parliamentary assistant is saying, although I can quite tell you, he and I and several others are probably some of the few people on this committee who have gone the entire route of this bill, and literally to arrive -- I mean, I'm upset enough as it is, the fact that we are passing a bill for which the regulations haven't even been written. But the other major concern of this bill is this issue of the deductible test or the threshold test, and this appears to be some sort of combination of that now. Now it's being proposed that we will have three hours to deal with that subject, notwithstanding that we have spent weeks and weeks and weeks in hearings and clause-by-clause and studying and debate in the House on something entirely different.

It may well be that the legal profession and the insurance profession have been consulted and may accept that. I, for one, quite frankly, want to be assured by you and the minister that the innocent accident victim is being protected. It's very fine that the interests of the insurance industry and the legal industry are being protected. I'm concerned about the innocent accident victim.

It may well be that some time will be spent this afternoon that will provide some answers to that, but I can tell you that it gives me grave concern that you are ramming this through in time allocation and are not simply allowing sufficient time to hear, as members of this committee and as members of this Legislature, individually and as a committee, the concerns of all concerned, not just the legal profession and the insurance profession but the medical profession and the long-term care people. There's a whole slew of other people that it sounds like you haven't consulted with. I would hope that you are going to tell me that you have and tell me what they think of this amendment. My guess is you haven't.

The Chair: Mr Tilson, just on behalf of the committee I'd like to let you know, and I'm sure you already do know this, I too have been involved from day one with Bill 164 -- and I wasn't previously the Chair; I am now -- and my recollection is different than yours, Mr Tilson. We did consult extensively with many groups, and indeed I know that you were there during those consultations. I think that should be made clear at this time.

We will now proceed with clause-by-clause. We are on paragraphs 12(11)35, 36, and 36.1. At that point in time I believe we had concluded discussion, but I will ask again. Is there any further discussion on those three paragraphs of subsection 12(11)? If not, shall paragraphs 12(11)35, 36 and 36.1 carry? Carried.

That brings us to subsection 12(11), a government motion.

Mr Owens: I move that paragraph 36.2 of subsection 121(3) of the Insurance Act, as set out in subsection 12(11) of this bill, be struck out.

The Chair: Is there any discussion or comment on this section?

Mr Tilson: Are we talking about subsection (11), Mr Chair?

The Chair: Yes, Mr Tilson, we are.

Mr Tilson: I'd like you to comment on paragraph 36.2.

The Chair: That's what we are dealing with.

Mr Tilson: I'm aware of that, but I haven't had the parliamentary assistant give us the rationale for that particular subsection.

The Chair: Mr Owens, would you be so kind?

Ms Fisher: The paragraph is being struck because there was concern that it could be used to fix rates, and that was never the intention of the section.

Mr Tilson: Am I on the right one?

Ms Fisher: It's 36.2 --

Mr Tilson: Yes.

Ms Fisher: -- which is being struck by motion.

The Chair: It would be numbered at the top right-hand corner of your page as number 10 in the package that was given to you by the clerk.

Mr Harnick: What number are we up to?

The Chair: Subsection 12(11).

Mr Harnick: Can I make a comment about that?

The Chair: Indeed, Mr Harnick.

Mr Harnick: This is probably the most interesting question I'm ever going to ask in this committee. I gather that this refers to 36.2. What's an algorithm?

Mr Tilson: It's a musical instrument.

Mr Harnick: I have an opportunity to learn something here.

Ms Fisher: An algorithm is a formula.

The Chair: Logarithm? Maybe it's a typo.

Mr Harnick: No, it's not a typo. It's an algorithm.

The Chair: Oh, it is an algorithm. My mistake.

Ms Fisher: It's a mathematical formula.

Mr Harnick: Can you enlighten me?

The Chair: It's a mathematical term, no doubt.

Ms Fisher: I actually have the appendix B to the order of the Ontario Automobile Insurance Board, which sets out algorithms or potential algorithms to be used by insurers.

Mr Harnick: It sets out whatever the formulae are.

Ms Fisher: That's correct.

Mr Harnick: Okay, thank you.

Mr Tilson: Does that clarify things for you?

Mr Harnick: Now at least I know what an algorithm is.

Mr Tilson: I thought it was a musical instrument.

The Chair: I thank Mr Harnick for raising that too, because indeed I thought it was a typo. I stand corrected as well. Any further discussion on subsection 12(11)? Shall the amendment carry? Carried.

That brings us to subsection 12(11) of the bill, government motion paragraph 36.3.

Mr Owens: I move that paragraph 36.3 of subsection 121(1) of the Insurance Act, as set out in subsection 12(11) of the bill, be amended by striking out "paragraph 36, 36.1 or 36.2" in the last line and substituting "paragraph 36 or 36.1."

The Chair: Any discussion on this section of the bill? Seeing none, shall the amendment carry? Carried.

We are now on subsection 12(12) of the bill, a government motion.

Mr Owens: I move that subsection 121(3) of the Insurance Act, as set out in subsection 12(12) of the bill, be struck out.

This is being done as the new withdrawal provisions make this section redundant.

The Chair: Any discussion? Seeing none, shall the amendment carry? Carried.

The next section is subsection 12(12) of the bill, a government motion.

Mr Owens: I move that subsection 121(5) of the Insurance Act, as set out in subsection 12(12) of the Bill, be struck out and the following substituted --

Mr Harnick: Excuse me, it's show time.

The Chair: Thank you, Mr Harnick. This committee will recess until approximately 3:30 this afternoon following routine proceedings.

The committee recessed from 1159 to 1532.

The Chair: I call the committee to order. Just before we turn the floor over to Mr Owens, who had the floor when we recessed last, the clerk would like me to inform you that you now have an up-to-date and complete package of amendments. You'll find that with a yellow piece of paper on top. This has been done in order to facilitate all the members of the committee proceeding with the process for the rest of the afternoon.

Mr Tilson: I'm glad these are starting to be dated, because they change so fast.

Mr Owens: I move that subsection 121(5) of the Insurance Act, as set out in subsection 12(12) of the bill, be struck out and the following substituted:

"Same

"(5) The regulations made under paragraphs 9 and 10 of subsection (1),

"(a) may establish procedures applicable to benefits;

"(b) may prescribe the burden of proof and standard of proof applicable in court proceedings and arbitration proceedings related to benefits;

"(c) may require that a person be examined or assessed in accordance with the regulations;

"(d) may authorize an accident benefits advisory committee established under section 7 to establish procedures, standards and guidelines that shall be used in conducting examinations or assessments;

"(e) may require that amounts in addition to those referred to in subsection 268(1.4) be indexed in accordance with a method specified in the regulations, may permit the minister to change the method of indexation in circumstances described in the regulations and may require that information related to the indexation be published in the Ontario Gazette;

"(f) may authorize the payment of a benefit directly to a minor for the purpose of subsection 271(1.4); and

"(g) may provide for the use of forms prescribed by the regulations or approved by the commissioner."

The Chair: Any questions or comments? Mr Owens, you have an explanation.

Mr Owens: This amendment provides the authority to draw up the regulations that make up the statutory accident benefits schedule. The motion further clarifies a scope of powers needed to implement the various processes and procedures that are contemplated as part of the accident benefits regime; for example, provision of an independent assessment of an insured's residual earning capacity, the procedure for payment to minors and, of course, the provision for the use of forms.

The Chair: Discussion, debate, comments?

Mr Tilson: Yes, a question to Mr Owens. You've made it quite clear that the new draft regulations have not been prepared. However, with respect to the procedures applicable to benefits, that is an important process to comprehend. I'm sure you have some set of procedures that are contemplated. I wonder if you could help us and tell us what you do contemplate.

Mr Owens: I'll ask the ministry staff to respond to that.

Ms Fisher: These might include application provisions: how you go about applying for benefits, assessments for certain kind of benefits, that kind of thing.

Mr Tilson: There have obviously been a series of forms and applications. I guess I'm getting back again to the issue of the individuals who have been injured understanding these procedures, assuming that this government will move as fast as it can and this bill will be passed very quickly and the regulations will be introduced.

We're aware that Professor Arthurs will not have his report on the proposed advocacy suggestions until probably the end of the summer. Assuming that, in the interim, before we get someone to advise the innocent accident victim, who will be advising the innocent accident victim on how to proceed through these types of regulations that you're contemplating?

Mr Owens: I'll pass the question to Ms Fisher.

Ms Fisher: As you know, Harry Arthurs is currently doing a study on advocacy within the accident benefit system. The government is expecting that study at the beginning of September.

Mr Owens: I take the member's point with respect to simplicity and the ability of the innocent accident victim to be able to understand the forms and whatever else may be required of that person. It's clearly our intent and our view now that these kinds of forms and other materials sent to an accident victim be written in plain language format and be as simple as possible to understand.

It's not a secret that a person who has been involved in an automobile accident has certainly been traumatized. It's certainly not our view that we would want to further the trauma by sending incomprehensible forms or confusing forms or methods of collecting payment to victims to further cause them difficulty.

Mr Tilson: I simply voice my objection to the process. I know the time allocation ends it today, but it's a process I am concerned with. You say that the forms will be simplified, and I hope they will be; although we've all seen government forms, whether they be provincial or federal, and I can assure you, as you can assure me, that forms are not simple. They're very difficult to understand, whatever language one has. There are new Canadians, there are people who simply aren't educated, there are people who are educated and have difficulty with forms, as well as making decisions as to how to process it.

My guess is that Mr Arthurs may or may not have a report available at the end of the summer. Then of course the government will have to study that report, and who knows where it's going to go after that. I simply voice my concern about the process with respect to the whole intent of this act, that once again the innocent accident victim is going to have the short end of the stick, because this very complicated bill, very anticipated complicated process of benefits will be difficult to understand. We've been put on notice by everyone, whether it be the insurance industry, the medical profession, the legal profession, that the first set of regulations were difficult, and I must say, I don't hold much hope out that the next set of regulations will be any simpler.

I'm simply voicing my concern again that this bill is being rammed through and that the innocent accident victim will look at forms and procedures, that he or she will have no idea what to do in appearing before the insurance commission, or anyone else for that matter, in making their applications for benefits.

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Mr Owens: I hope I can allay the member's concerns, perhaps not around the time allocation motion, but in terms of the process with respect to this bill. At this point the proclamation date has not been set, and it's our view that it should be coincident upon the delivery of Professor Arthurs's report and the work completed on the accident benefit regulations. I think the member's comments, notwithstanding the comments about time allocation, are well-motivated and well-meaning, and we certainly want to keep that in mind as we move through the process and ensure that we can deliver the best benefit regulations of legislation to innocent accident victims as we can.

The Chair: Further debate? Shall the amendment carry? Carried.

I want to apologize to the members of the committee. I overlooked a section of the bill; that section is subsection 12(4). It's very short; I'll read it. It says:

"(4) The regulations made under paragraphs 9 and 10 of subsection (1) shall comply with subsections 268(1.1) to (1.5)."

Mr Owens: This can be explained in 25 words or less. This simply requires the statutory accident benefits schedule to comply with requirements set out throughout the bill.

The Chair: Discussion? Shall subsection 12(4) of the bill carry? Carried.

We are now on government motion, section 12(1) of the bill.

Mr Tilson: Where are you taking us now, Mr Chair?

The Chair: I believe it's page 14 in your package.

Mr Tilson: I see we're jumping around a little bit.

The Chair: Mr Owens, do you have a comment?

Mr Owens: I'd like to move that the bill be amended by adding the following section, after section 12:

"12.1(1) Subsection 220(1) of the act is repealed and the following substituted:

"Minors

"(1) If an insurer admits liability for insurance money payable to a minor, the insurer shall pay the money and any applicable interest, less the applicable costs mentioned in subsection (2), into court to the credit of the minor.

"(2) Section 220 of the act is amended by adding the following subsection:

"Authorized payments

"(4) An insurer may, despite subsection (1), pay insurance money and applicable interest payable to a minor to,

"(a) the guardian of the property of the minor, appointed under section 47 of the Children's Law Reform Act; or

"(b) a person referred to in subsection 51(1) of the Children's Law Reform Act, if the payment does not exceed the amount set out in that subsection."

The Chair: Any questions or comments on this government motion? Mr Owens, explanation.

Mr Owens: Just by way of quick explanation, this is an amendment that was requested of us by the official guardian in terms of the expeditious payment of insurance moneys to minors.

The Chair: Mr Tilson.

Mr Tilson: I guess that was my question, Mr Chair: whether the legal people are satisfied that there's no contravention of any legislation that deals with the public trustee or the official guardian. Were you satisfied with that?

Ms Fisher: Yes, I am.

The Chair: Any further discussion or comments? Shall the amendment carry? Carried.

Shall section 12 of the bill, as --

Interjections.

Mr Tilson: I'm sorry. I believe there were a number of subsections of section 12 that were stood down from the last committee days.

The Chair: Yes, there were. We're going to just go on, Mr Tilson. Mr Owens, I believe you wanted to deal with another section of the bill at this time. Is that right?

Mr Owens: What I would like to suggest, in the spirit of the amazing level of cooperation that we've had, is that we continue to move on. I know that Mr Tilson has some concerns with respect to the amendment that we tabled this morning under section 24 so if we can continue to move; or what we can do, I can request unanimous consent of the committee to deal specifically with section 4 and then come back through, starting with section 13.

Mr Tilson: To proceed to section 24, is that what you're suggesting now?

Mr Owens: I'm asking what the view of the committee might be. I would personally, in terms of orderliness, like to proceed through to 24, but if there's a great level of interest in moving directly to 24, we can certainly do that.

Mr Tilson: I don't think it really matters, quite frankly, the way that this process is set up. I certainly have some interest in section 24 as well as the other sections. I'd like to hear more about it, if anything, because we've literally just received it today. The committee has just received it this morning and there's been literally no time, other than the 45 minutes, to discuss it. But perhaps if the staff and others and yourself, Mr Owens, could explain it, that would be useful.

Mr Owens: What I'm hearing from the member is that he has some interest in hearing about section 24 but that he also has an interest in the other sections of the bill. So if we could perhaps proceed through, starting with 13 through to 24, then we'll have lots of time to discuss section 24.

Mr Bob Huget (Sarnia): Agreed.

The Chair: Very well. Shall sections 13 to 19, inclusive, carry?

Interjections.

The Chair: I'm sorry. I'm a little bit ahead of myself there. Are there any concerns or questions --

Mr Tilson: Why don't we just move and have the whole bill passed? Let's try that one.

The Chair: Okay. Let's do it one section at a time. My apologies, Mr Tilson.

Mr Owens: The member for Dufferin-Peel has made an admirable suggestion here. Gerry needs to get back to Scarborough for a meeting tonight.

The Chair: We are on section 13 of Bill 164. Any questions or comments?

Mr Tilson: Mr Chairman, I think I'd love to hear about what the rationale of section 13 is all about.

Mr Owens: This section increases the approval power of the commissioner beyond the owner's policy to all standard forms of policies and their related certificates of insurance. For further clarification, as this is an OIC amendment, I'll ask Mr Halpert to chime in and add background.

Mr Halpert: The way the current act is drafted, there is a restriction to the standard owner's policy, which is the OPF 1. This would allow the commissioner to approve other forms as well to make it easier for customers to have standard forms across the industry. This would include, for example, the OPF 2, which is the driver's policy and the garage policy, and the OPF 4 etc.

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Mr Tilson: So, in short, Mr Chair, we're giving the commissioner more jurisdiction, more power simply to --

Mr Halpert: Just to standardize forms in the industry.

Mr Tilson: Have you experienced some problems? Why would you do this?

Mr Halpert: It makes it easier to a certain extent for the insurers and for the insured. The insured therefore doesn't necessarily have to send out an actual policy with each renewal, for example; he can just send out the certificate which shows that a person is insured and covers the basics of the policy. He can be assured that every time he signs up for this policy, he will get exactly the same treatment.

Mr Tilson: So there's no approval now? Is that what you're saying? I'm not familiar with the procedure.

Mr Halpert: Right now the OPF 1 is approved. The OPF 2, OPF 4 etc are not approved.

Mr Tilson: This says that that's to be approved as well.

Mr Halpert: This opens it up so they can be approved forms.

Mr Kwinter: I'm just looking for some clarification. When you look at section 13, subsections 227(5) and (6), and you look at (5) it says:

"The commissioner may approve the form of standard policies containing insuring agreements and provisions in conformity with this part for use by insurers in general."

Then it says in subsection (6):

"If the commissioner approves a form of standard policy, the commissioner shall cause a copy of the form to be published in the Ontario Gazette...."

The concern that I have, and I wish I could get some clarification so I understand in my mind, is that there is a standard policy and then the commissioner is given another form that is purported to be a standard policy, but obviously it's got to be different than the standard policy or why would he want to get approval for it? It says that he approves "a form" of standard policy. I just want to satisfy myself: What is a form of standard policy that has to be published if there's already a standard policy? And if the commissioner can approve a form of standard policy and it's not the standard policy that's already the standard policy, then it must mean that there's other than a standard policy that he is now declaring to be a standard policy. I'd just like to get some clarification on that.

The Chair: Mr Owens? Mr Halpert.

Mr Halpert: I knew that was coming.

Mr Kwinter: You knew that was coming.

Mr Halpert: And I won't try to rephrase the question.

The current act deals with the standard owner's policy. That's the OPF 1, and that's the standard policy that's used by, normally, you or I or most people. But there's a certain need, a certain desirability to having certain other forms made standard as well. This would allow the commissioner to do that, to make certain other forms standard as well.

Mr Kwinter: I would respectfully submit that the wording of this provision is not clear, because it doesn't say that the commissioner shall have the authority to declare another form of the policy a standard policy. What it really says is, "If the commissioner approves a form of standard policy." As I say, that's what has led, in my mind, to the confusion. I think there should be some clarification that the commissioner has the authority to establish standard policies from time to time, and when he does that he must publish it in the Ontario Gazette.

When you read this, which led to my question in the first place and where there is some confusion, it says, "If the commissioner approves a form of standard policy," and when you look at subsection (5), it gives the impression that there's only one kind of standard policy, and where the confusion is in my mind is that the commissioner is then given authority to approve a form of standard policy that's different from the standard policy. I think there should be some clarification in the wording that the commissioner does have the authority to declare certain policies a standard policy providing he declares it as such and providing he publishes it in the Ontario Gazette.

Mr Halpert: I think the industry is also interested in having standard policies. When the commissioner does approve of a policy and publishes it in the Gazette, the industry, I think, in virtually all cases -- I'd like to say "in all cases," but there may be an exception -- will use that policy. It simplifies things for the insurers as well as the insureds. They can get the policies printed, have them formalized that way, they don't have to rewrite them and everybody understands them.

Mr Kwinter: I'm not questioning the validity of having standard policies; I'm just questioning the clarity of how this thing works and what it is that is being done by the commissioner. I'm not in any way questioning the need for the industry to have standard policies.

Mr Tilson: We should probably stand this down till 5 o'clock.

The Chair: Is that a suggestion, Mr Tilson?

Mr Owens: I'm trying to understand where, Mr Kwinter, you need clarification. I understand in terms of your comments with respect to the standard policies not being an issue, but we talk about the form of standard policies being pluralized, so that it's not simply a singular policy that the commissioner can approve. It's not a lot different than what currently exists. It's a tighter provision.

Mr Kwinter: I was asking for clarification, and I'm quite happy with it.

Mr Owens: We have that on the record, I hope.

The Chair: Further discussion about section 13 of the bill? Seeing none, shall section 13 carry? Carried.

We move now to section 14 of the bill. Mr Owens, any comments?

Mr Owens: This section extends the duty to provide certain types of information to our brokers as well as insurers. This again is an insurance commission amendment, so over to Mr Halpert for further background.

Mr Halpert: In many, many cases, the broker is the person who actually contacts the customer and deals with the customer. In some cases like Allstate, where they are direct writers, it is the insurer that deals with them, but we wanted to broaden this so that it makes it clear that we're not only talking about the insurer providing information but it's also the broker.

The Chair: Any comments or concerns?

Mr Tilson: A question for Mr Halpert. We're now seeing more and more situations where the commissioner's office is going to be required to become more involved. There are sections that we're dealing with now. Mr Scott made comment some time ago as to the number of new staff that would be required to administer the provisions of this bill, including this provision. Are you now in a position to tell this committee, are there any better ideas as to any additional staff that will be required by the Ontario Insurance Commission, to administer this piece of legislation?

Mr Halpert: No, I'm not.

The Chair: Any further comments, questions? Seeing none, shall section 14 of the bill carry? Carried.

Moving on to section 15: Mr Owens, for an explanation.

Mr Owens: This section is complementary to section 13 in that it further allows insurers to send certificates instead of policies to insureds for a broader range of policies. It's designed to increase the convenience on both sides, both for the insurer and the insured.

The Chair: Any comments or questions? Seeing none, shall section 15 of the bill carry? Carried.

Section 16 of the bill: Mr Owens, for an explanation.

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Mr Owens: The current act sets out statutory conditions, or what is affectionately referred to as "small print," which must be read into insurance contracts. The bill removes the conditions from the act and indicates that new statutory conditions will be set out in the regulations. By putting the statutory conditions in the regulations rather than in the act, it allows the conditions to be more flexible and it will not be necessary to amend legislation in order to modify the small print.

The Chair: Any questions or comments? Seeing none, shall section 16 of the bill carry? Carried.

Moving on to section 17: Mr Owens, for an explanation.

Mr Owens: This section repeals section 235 of the act. It's a consequential amendment to section 16 of the bill, which moves the small print statutory conditions from the act to the regulations.

The Chair: Any comments or questions? Seeing none, shall section 17 of the bill carry? Carried.

Moving on to section 18: Mr Owens, for an explanation.

Mr Owens: Underwriting grounds are the reasons that insurance companies use to refuse to insure someone. The grounds are regulated by the Insurance Commission of Ontario. Under the current act, there is nothing to stop insurers from using objectionable grounds from the day they are filed with the commission. Under Bill 164, the insurer must wait 15 days after filing the underwriting grounds before using them. During that 15-day period, the commissioner may prohibit use of those grounds. This gives the commissioner the power to prohibit the use of new underwriting grounds prior to their implementation.

Under the current act, the insurer may use underwriting grounds immediately after filing them. What this allows is a temporary use of these perhaps inappropriate grounds. Under the current act, the commissioner may demand information relating only to the manner in which the grounds are being applied. This does not allow the commissioner to inquire whether grounds other than those which have been filed are being used.

The Chair: Any comments or questions on this section? Seeing none, shall section 18 of the bill carry? Carried.

Moving on to section 19 of the bill: Mr Owens, for an explanation.

Mr Owens: This provision amends the act to reflect the moving of the small-print statutory conditions from the act to the regulation.

The Chair: Any comments or questions? Seeing none, shall section 19 of the bill carry? Carried.

Moving on to section 20 of the bill, we have a government motion.

Mr Owens: I move that clauses 263(1)(b) and (c) of the Insurance Act, as set out in subsection 20(1) of the bill, be struck out and the following substituted:

"(b) the automobile that suffers the damage or in respect of which the contents suffer damage is insured under a contract evidenced by a motor vehicle liability policy issued by an insurer that is licensed to undertake automobile insurance in Ontario or that has filed with the commission, in the form provided by the commission, an undertaking to be bound by this section; and

"(c) at least one other automobile involved in the accident is insured under a contract evidenced by a motor vehicle liability policy issued by an insurer that is licensed to undertake automobile insurance in Ontario or that has filed with the commission, in the form provided by the commission, an undertaking to be bound by this section."

The Chair: Mr Owens, an explanation.

Mr Owens: What that fairly large bit of gobbledegook means is that the bill amends technical errors in the act and also allows owners of commercial vehicles to decide what level of insurance for property damage they want to buy.

The Chair: Questions or comments on this amendment? Seeing none, shall the amendment carry? Carried.

That brings us to subsection 20(2) of the bill. Mr Owens?

Mr Owens: I'll turn the question over to Mr Halpert for explanation.

Mr Halpert: I'm sorry; I thought you did it a few minutes ago. This deals with the ability for --

The Chair: Yes, we did an amendment to section 20, but we didn't do the whole section.

Mr Tilson: We're on 20?

The Chair: Yes, subsection 20(2), Mr Tilson.

Mr Owens: I think the great speed at which we are now moving at has made us a little oxygen-starved here.

The current legislation only applies to accidents involving two cars, and applies to insurers licensed in Ontario whether or not they are licensed to write automobile insurance here. Our legislation will make it clear that direct compensation applies as long as two cars in an accident are insured by Ontario licensed insurers.

Secondly, it makes it clear that these provisions apply only to insurers licensed to write auto insurance in Ontario. It also allows that in "side agreements in which an insurer agrees with an insured person actual prescribed classes of insurance such as taxis and commercial vehicles, the insurer will pay less than the full amount for property damage."

The Chair: Any questions or comments on this section? Seeing none, shall subsection 20(2) carry? Carried.

Shall section 20, as amended, carry? Carried.

Moving on to section 21 of the bill: Mr Owens.

Mr Owens: By way of explanation, section 21 repeals a subsection of the current act which is no longer required. The repealed subsection dealt with the giving of a notice from an insurer when there was an accident. It's no longer required, as under Bill 164 these matters are to be dealt with in the regulations instead of the act.

Mr Tilson: Will the regulations have a similar provision?

Mr Owens: We certainly plan on the regulations mirroring the legislation and, as we just certainly passed a section that mandates that to happen, it's our view that we will comply with the law.

Mr Tilson: I guess I'm just asking about the merit of moving it out of legislation into regulations.

Mr Halpert: We're moving all the statutory conditions into the regulation; as this deals with the statutory conditions, it makes sense to move them into the reg as well.

The Chair: Any more comments or concerns about section 21 of the bill? Seeing none, shall section 21 carry? Carried.

Moving on to section 22 of the bill: Mr Owens, for an explanation.

Mr Owens: Section 266 of the current act sets out the OMPP threshold for access to tort. This provision of 164 will abolish the threshold as soon as section 24 of the bill passes, as it will be as amended.

In terms of the rationale, it clearly implements the policy of The Road Ahead by widening the access to courts for suits for pain and suffering.

The Chair: Any comments or questions? Seeing none, shall section 22 of the bill carry? Carried.

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Section 23: Mr Owens, for an explanation.

Mr Owens: Section 267 of the current act provides that tort damages must be reduced by the amount received for such things as sick leave plans and income protection plans. This reverses a principle called the collateral source rule. The payment received from collateral sources provides compensation for economic loss, and since compensation for economic loss will not be available through tort awards after Bill 164 comes into force, the collateral source benefits will not be deducted from any tort awards. The rationale for this provision is that the current provision is not required where there are no suits for economic loss.

The Chair: Comments or questions on this section?

Mr Harnick: Which section was just read?

The Chair: Section 23.

Mr Harnick: Just a second; you've lost me again. Are you saying section 23 in these loose papers or in the book?

The Chair: No, in the book; section 23 of the bill.

Mr Harnick: Section 23 of the book says, "Subsection 267(6) of the act is amended by inserting after `1989' in the fourth line `and before the day section 267.1 comes into force'."

The Chair: That's correct, Mr Harnick.

Mr Harnick: Explain that.

Mr Kwinter: Mr Chair, on a point of order: I assume that section 23 deals with exactly what it says, just to insert after "1989" in the fourth line and before the thing. The parliamentary assistant just gave us a whole dissertation on the rationale for dealing with tort, which seems to me comes up under section 24.

Mr Tilson: It's sort of the logical place, isn't it?

Mr Kwinter: I just want to make sure we understand what it is we're talking about.

Mr Owens: I'll ask Mr Endicott to respond to that.

Mr Eric Endicott: Section 267, which is staying in the bill, provides for the deduction of collateral sources from tort awards. This new provision terminates the effect of those sections once the new regime comes into force; those sections will no longer be operative once this bill is passed, or once section 24 is proclaimed. It's a way of making sure that the law stays as it is now but when it's changed it will no longer be in force.

Mr Harnick: I understand.

The Chair: Mr Kwinter?

Mr Kwinter: That's fine.

The Chair: Everyone's clear on that now? No further questions or concerns with section 23? Shall section 23 carry? Carried.

That brings us to section 24, and this is the section that everyone has been waiting for. Mr Owens, you have a government motion.

Mr Owens: I move that section 24 of the bill be struck out and the following substituted:

"24. The act is further amended by adding the following section:

"Protection from liability

"267.1(1) Despite any other act and subject to subsections (2) and (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in a proceeding in Ontario for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile in Canada, the United States of America or any other country designated in the Statutory Accident Benefits Schedule.

"Non-pecuniary loss

"(2) Subsection (1) does not relieve a person from liability for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, if as a result of the use or operation of the automobile the injured person has died or has sustained,

"(a) serious disfigurement; or

"(b) serious impairment of an important physical, mental or psychological function.

"Determination binding

"(4) A determination of a judge on a motion under subsection (3) is binding on the parties at the trial.

"Determination at trial

"(5) If no motion is made under subsection (3), the trial judge shall determine if, as a result of the use or operation of the automobile, the injured person has died or has sustained,

"(a) serious disfigurement, or

"(b) serious impairment of an important physical, mental or psychological function.

"Liability of other persons

"(6) Subsection (1) does not relieve any person from liability other than the owner of the automobile, the occupants of the automobile and the persons present at the incident.

"Joint and several liability, pecuniary loss

"(7) If, in the absence of subsection (1), the owner of an automobile, an occupant of an automobile or a person present at the incident would have been jointly and severally liable for damages for pecuniary loss with one or more other persons who are not relieved of liability by subsection (1), the other persons are liable for those damages only to the extent that they are at fault or negligent in respect of those damages.

"Non-pecuniary loss, amount of damages.

"(8) Subject to subsections (2) to (5), in a proceeding for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the court shall determine the amount of damages for non-pecuniary loss to be awarded against the owner of the automobile, an occupant of the automobile or a person present at the incident in accordance with the following rules:

"1. The court shall first determine the amount of damages for non-pecuniary loss for which the owner of the automobile, the occupant of the automobile or the person present at the incident would be liable without regard to this part.

"2. The determination under paragraph 1 shall be made in the same manner as a determination of the amount of damages for non-pecuniary loss in a proceeding to which this section does not apply and, in particular, without regard to,

"i. the statutory accident benefits provided for under subsection 268(1),

"ii. the provisions of this section that protect the owner of the automobile, the occupants of the automobile and the persons present at the incident from liability for damages for pecuniary loss, and

"iii. the provisions of paragraph 3.

"3. The amount of damages for non-pecuniary loss to be awarded against the owner of the automobile, the occupant of the automobile or the person present at the incident shall be determined by reducing the amount determined under paragraph 1 by,

"i. in the case of damages for non-pecuniary loss other than damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act,

"A. $10,000, if the award of damages is made in 1993 or 1994, or

"B. the non-pecuniary loss deductible published under clause 267.2(1)(a) for the year in which the court makes the award of damages, if the award of damages is made in a year after 1994, and

"ii. in the case of damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act,

"A. $5,000, if the award of damages is made in 1993 or 1994, or

"B. the Family Law Act deductible published under clause 267.2(1)(b) for the year in which the court makes the award of damages, if the award of damages is made in a year after 1994.

"Same

"(9) Subsection (8) applies in respect of each person who is entitled to damages for non-pecuniary loss.

"Non-pecuniary loss, other tortfeasors

"(10) If, in a proceeding for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, one or more persons other than the owner of the automobile, the occupants of the automobile and the persons present at the incident are found to be liable for damages for non-pecuniary loss,

"(a) the other persons,

"(i) are jointly and severally liable with the owner, occupants and persons present at the incident for the damages for which the owner, occupants and persons present at the incident are liable under subsection (8), and

"(ii) are solely liable for any amount by which the amount mentioned in subclause (i) is less than the amount that the other persons would have been liable to make contribution and indemnify the owner, occupants and persons present at the incident in respect of non-pecuniary loss in the absence of this section;

"(b) the other persons are liable to make contribution and indemnify the owner, occupants and persons present at the incident in respect of non-pecuniary loss to the same extent as if this section did not apply, up to the amount for which the owner, occupants and persons present at the incident are liable under subsection (8); and

"(c) the owner, occupants and persons present at the incident are liable to make contribution and indemnify the other persons for the amount that the owner, occupants and persons present at the incident are liable under subsection (8), reduced by the amount that the other persons are liable to make contribution and indemnify the owner, occupants and persons present at the incident under clause (b).

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"Determination of liability

"(11) For the purposes of subsections (7) to (10), the liability of all persons involved in the incident from which the proceeding arose shall be determined as though all persons wholly or partly responsible for the damages were parties to the proceeding even though any of those persons is not actually a party.

"Costs

"(12) In a proceeding for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party's entitlement to costs shall be made without regard to the effect of paragraph 3 of subsection (8) on the amount of damages, if any, awarded for non-pecuniary loss.

"Regulations

"(13) The Lieutenant Governor in Council may make regulations,

"(a) defining serious impairment of an important physical, mental or psychological function for the purposes of this section;

"(b) respecting the evidence that must be adduced to prove that a person has sustained serious impairment of an important physical, mental or psychological function for the purposes of this section.

"Definition

"(14) For the purposes of this section, `owner' includes an operator as defined in subsection 16(1) of the Highway Traffic Act.

"Application

"(15) This section applies only to a proceeding for loss or damage arising for the use or operation, on or after the day this section comes into force, of an automobile.

"Publication of deductible amounts

"267.2(1) Before the 1st day of January in each year after 1994, the Minister shall determine in accordance with this section and publish in the Ontario Gazette,

"(a) the non-pecuniary loss deductible to be used under subparagraph i of paragraph 3 of subsection 267.1(8) in respect of awards of damages made in the year that begins on the 1st day of January; and

"(b) the Family Law Act deductible to be used under subparagraph ii of paragraph 3 of subsection 267.1(8) in respect of awards of damages made in the year that begins on the 1st day of January.

"Rules for determination

"(2) The following rules apply to the determination of the non-pecuniary loss deductible and the Family Law Act deductible:

"1. The non-pecuniary loss deductible for 1993 and 1994 is $10,000.

"2. The Family Law Act deductible for 1993 and 1994 is $5,000.

"3. The non-pecuniary loss deductible and the Family Law Act deductible for a year after 1994 shall be determined by adjusting the deductible for the previous year by the percentage change in the consumer price index for Canada (all items), as published by Statistics Canada under the authority of the Statistics Act (Canada), for the period from September in the year immediately preceding the previous year to September of the previous year.

"4. Despite paragraph 3, if the consumer price index information required by paragraph 3 to determine the deductibles for a year is not available by the 1st day of November in the previous year, or if in the minister's opinion the information published by Statistics Canada does not provide a reasonable reflection of changes in consumer prices, the minister may determine the deductibles in a manner that the minister considers will provide a reasonable reflection of changes in consumer prices."

The Chair: Thank you, Mr Owens. You may want to take a deep breath and have a glass of water.

Mr Owens: And apply for hospitalization.

The Chair: There are indeed some comments and some questions with regard to this section. Mr Harnick?

Mr Owens: If I may, could I ask Mr Endicott to provide an explanation, unless Mr Harnick is wanting to --

Mr Harnick: I'm going to make certain remarks, and I hope Mr Endicott is going to explain some of the things that I have some questions on as I go, if that's satisfactory.

The Chair: I think that's quite satisfactory, Mr Harnick. Mr Harnick will make some comments.

Mr Harnick: As some people may know, this is the section that I think is the heart of this bill. I can't particularly applaud the government for bringing in at the 11th hour this particular amendment, but I will say that it's better than what we had before in that I believe it lowers the threshold to a realistic verbal threshold and it imposes on top of that a monetary deductible.

I think the monetary deductible is too high and it will not be of the greatest benefit possible to innocent accident victims. However, I understand that from the insurers' point of view, it's the best they could do in terms of complying with the government's conditions regarding the costing of this particular package.

I'm somewhat dismayed that the government was not prepared to adjust certain areas that I think it ought to have adjusted in the accident benefits schedule in order to accommodate more innocent accident victims who, I believe, are the persons who are the primary concerns when there's an accident and an injury involving an automobile.

I've always said that those who are not innocent deserve to be protected properly and adequately, but you reach a point where, if you pay them too much, it's the innocent victim who suffers. I think that's in fact what's happened with this particular aspect of the bill, and I regret that the government didn't show some flexibility in making some adjustments to the accident benefits package so that insurers and lawyers could provide, putting their heads together, a better alternative for the innocent accident victim.

That being said, I am pleased with this particular threshold, vis-à-vis the straight $15,000 deductible, but I am not prepared to applaud this particular threshold deductible scheme until I see an economic loss endorsement that I understand is in the course of being developed by negotiation between the advocates' society, FAIR, the Canadian Bar Association and the Insurance Bureau of Canada and their representative companies.

I have a note that I've been provided with from the Insurance Bureau of Canada, from Stan Griffin, and in that note he states that the insurance industry continues to be prepared to work with the legal community to develop this endorsement around certain concepts that had been agreed upon, and in return, the legal community, as I understand it, gave their support for the threshold alternative put forward to the government.

Now, I've been advised that the government will ensure that on the day this bill is proclaimed into law, there will be an economic loss endorsement in the regulations.

I also will hold the insurance industry to its pledge to develop this endorsement because, as Mr Griffin has told me, it is doing this in return for the support of the legal community in terms of the threshold that's in this section. I have no doubt that all those parties will make their very best effort to come up with an affordable and comprehensive economic loss package which will include the right of all those who purchase the insurance to claim on a first-party basis against their own insurer, in tort, for their actual future loss of income, future loss of opportunity, for all economic loss, save and except for medical expenses and rehab.

I have no doubt that the insurers and the lawyers will work in conjunction with one another in a good faith way to provide innocent accident victims with that protection at an affordable amount of money and that they will produce a product that is competitive and marketable. I have no doubt that that is the case.

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I do have some reservations about the section itself. I apologize for my ignorance, but I don't really understand the "joint and several" aspects of this package. I'll get into that in a moment, but one other section that provides me with grave concern is subsection (13) as set out on page 5 under the heading "Regulations."

I have some reservations because I have been told and been made aware that essentially what is in this package was agreed to by the insurance companies and by the lawyers' groups that negotiated to come up with this package. It bothers me to think that now we have something by agreement in the act, and by way of regulation the government can go ahead and change what the parties set out by way of agreement.

This cuts both ways. If courts determine that this threshold is nothing more than a $10,000 deductible and it starts to cost the insurance companies a lot of money, I would be upset if the government went ahead and changed the regulation because it saw that happening. By the same token, I think insurance companies would be upset if the threshold had been interpreted in a very strict way and the government then decided unilaterally to go ahead and change the definitions that the courts have provided over a period of time.

I would like to propose by way of a friendly amendment, if that's possible, that because this section was developed in conjunction between the insurers and the lawyers, we delete this particular section. I think if we are going to go ahead and deal with the threshold and make changes to the threshold, it should be done by the Legislature. It is the heart and guts of this auto insurance package, and if anybody is going to tamper with those meanings and those sections, I think it should be done in the Legislature by way of a bill.

If it's possible to propose that amendment, I would do so. I don't know, because of the time allocation motion and the clock ticking and the 28 minutes left to go, whether that's possible, but I tell you that it will not affect the way this bill operates. What it will say is that we as parties are prepared to leave this to the courts to determine.

If that's not possible or proper, so be it. I've spoken to people today after this package was delivered, and they assure me that regulations will not be touched lightly by the cabinet, that if there are any changes to be made there will be consultation with the insurance industry and there will also be consultation with the various lawyers' groups. That's fine, and I believe that, except people come and people go, governments come and governments go. If I could be sure that Blair Tully was going to be the deputy minister in charge of this bill for ever, I'd be quite content to see subsection (13) remain. I don't know if Mr Tully is going to be in that capacity and I don't know if this government -- well, I do know that this government is not going to be around beyond this Parliament.

Quite frankly, I am concerned that we can tamper with something that's been a negotiated process between the parties. I'll leave it at that. If I can bring that motion and if it's in order, I would do so. If the Chair tells me it's not, well, I will have to be content with the assurances I've been given by Mr Tully and by the minister's executive assistant in charge of policy. They've assured me, and I believe them, that this won't be tampered with lightly.

The other area on which I would like some help from Mr Endicott is the issue dealing with joint and several liability in subsection (10). He's provided me with some examples, and I hope he'll let me keep this. I don't understand it, but am I wrong in saying that if there is not joint and several liability -- in other words, if someone goes into a hotel and goes out and because they're impaired they're involved in an accident and they have no insurance, if the lawsuit is brought against the hotel, do the rules pertaining to the deductible and the threshold apply to the hotel?

Mr Endicott: The answer is no, they don't.

Mr Harnick: In situations where there are joint tortfeasors who are both insured and the accident is a motor vehicle accident -- there's no other outside party -- if there is a situation of 50% liability on each party on a claim of perhaps $100,000, am I correct in saying that the claimant would get $100,000 less the deductible of $10,000, or are there two deductibles in that case?

Mr Endicott: In every case there's only one deductible.

Mr Harnick: All right. Now, in a situation where you have an auto tortfeasor and a non-auto tortfeasor, to use your examples, and they're each found 50% liable in a case of $100,000, does it mean that the non-auto tortfeasor pays $50,000 and the auto tortfeasor pays $50,000, less a $10,000 deductible?

Mr Endicott: That's correct.

Mr Harnick: In a situation where the non-auto tortfeasor cannot satisfy a judgement, am I correct in saying that the $90,000 comes from the auto tortfeasor --

Mr Endicott: That's correct.

Mr Harnick: -- and the auto tortfeasor now has to chase the non-auto tortfeasor for $50,000?

Mr Endicott: For $40,000. That's right, which of course is the standard case in tort law.

Mr Harnick: Let me just keep going here, because I don't really understand this stuff.

Mr Endicott: You seem to have understood it pretty well so far.

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Mr Harnick: I understand it in my language, but not your language. That's my problem. In this interesting situation you have in example 3, the auto tortfeasor and the non-auto tortfeasor are each found 50% liable in a case assessed at $15,000. The way I would look at this is that the non-auto tortfeasor pays $7,500. The auto tortfeasor pays --

Mr Endicott: They pay nothing on their own behalf, but they could be made to pay $5,000 if the non-auto tortfeasor is impecunious.

Mr Harnick: All right, I think I understand that. If we have a $15,000 claim, the non-auto tortfeasor pays 50%, which is $7,500. The auto tortfeasor pays $15,000 less $10,000, which is $5,000 left, and he pays half of the $5,000?

Mr Endicott: I have to say these are complicated rules and in the end you really have to apply the sections. He is primarily responsible for only $7,500, and that's less than $10,000, so he would not be liable for anything.

Mr Harnick: Except that it's a $15,000 claim.

Mr Endicott: That's correct. He is secondarily liable for the amount in excess of $10,000, so that if the non-auto tortfeasor doesn't pay, then the auto tortfeasor -- "it," sorry, not "he" -- would be liable for $5,000. But because its primary responsibility is less than $10,000, it doesn't, in the first instance, have to pay anything. The amount that has to be paid is the $7,500 by the non-auto tortfeasor, of which the auto tortfeasor is liable to contribute, in the language of the trade, $5,000.

Mr Harnick: But the maximum recovery for the claimant is $7,500.

Mr Endicott: That's correct.

Mr Harnick: All right. In a situation where an assessment is obtained for $10,000, you would really get $5,000 from the non-auto tortfeasor and zero, again.

Mr Endicott: That's right. In that case the auto tortfeasor would not be liable to contribute in any event, in any situation.

Mr Harnick: But in a situation where there is no auto tortfeasor, it's strictly a non-auto tortfeasor situation -- I can't quite think of the example, but perhaps it would be if somebody repaired the brakes of my car and they were repaired improperly and I was now in an accident. I would sue that non-auto tortfeasor, and even though my damages are caused by reason of a motor vehicle accident, that person would still be deemed to be a non-auto tortfeasor, so he could not take the benefit of these rules.

Mr Endicott: That's correct.

Mr Harnick: In other words, the deductible and the threshold.

Mr Endicott: And the provisions respecting economic loss. That's correct. This policy's carried over from the current legislation.

Mr Harnick: That would be so even though the case law indicates that I only have two years to commence my action, by way of limitation, even in that situation, because it's a motor vehicle accident.

Mr Endicott: Yes.

Mr Harnick: All right. I hope the judges agree with you someday.

Mr Tilson: It will take three years to find out.

Mr Harnick: Those really are my comments. In wrapping up, I wish I could applaud this amendment at this time, but I can't until I see the economic loss endorsement.

I will say it again, and maybe I'll get a chance to say it in third reading when we're given two hours to debate, but I can't for the life of me believe a motor vehicle package that takes away the right of innocent victims to claim their actual economic losses. When I see the affordable economic loss endorsement, I'll feel better and I'll be able to say, "Well, this isn't so bad," but I'll never say that it's right.

I think that this government has distinguished itself --

Mr Tilson: In so many things.

Mr Harnick: -- in so many things, but in this particular instance you really are unique: the only jurisdiction anywhere in the world to take away economic rights from innocent people. When I think of your promises and I think of your original positions on auto insurance, and I quite frankly don't care much about public versus private, but in terms of your pledges to innocent accident victims in September 1990, and I see that you've taken away economic rights and even reluctantly you're letting people buy those rights back -- and I'm assuming that will be an affordable proposition and a comprehensive proposition. It's very, very hard for me to applaud this legislation, but I will say that at least you're giving back something and it's better than it was.

Perhaps if the economic loss endorsement was here in front of me today and it covered parents, spouses, children for their future losses of income except for medical expenses and rehab costs and long-term care or whatever the other medical aspects are, if it covered all the other pecuniary losses and included everyone who would make up the components of a family -- not just dependants, because oftentimes we have a wife and a husband who both work. It's very difficult to determine whether someone who's working is a dependant, so it's got to be quite clear that it covers the named insured, the spouse and the children and that it applies to pecuniary losses except for the medical and the rehab, and that it applies for the loss of income that a family suffers in a fatal accident situation. All of those things have to be included.

With that said, I wish I could applaud this. You've made a nice effort to try and correct it and I appreciate that. But I leave a lot of my comments until I see the comprehensive economic loss endorsement that I know will be provided.

The Chair: Thank you, Mr Harnick. Very early on in your comments you posed a question that may have been rhetorical and I believe you understand --

Mr Harnick: It's not rhetorical, but --

The Chair: But I believe you understand that the business of this committee today is ordered by a time allocation motion and any friendly amendment that you might propose, of course, would be out of order.

Mr Harnick: Well, unless everybody consents. If everybody consents, we can do it. We can do anything on consent, so perhaps I could ask the Chairman to pose that question.

The Chair: But the order is clear, Mr Harnick. All amendments are to be filed prior to --

Mr Harnick: No, I'm aware of that, but on consent we can do anything and all I'm asking you to do, Mr Johnson, is ask for consent. Then, if we don't get it, we can move on and if we do, we can delete that subsection. That's all I'm asking you to do.

The Chair: Mr Harnick, I'll put the --

Interjection.

The Chair: The clerk has informed me that that would still be out of order, according to the time allocation motion.

Mr Harnick: You can do anything on consent, Mr Chair, and I'd ask you to pose the question, because if it's on consent, I think we can do it. Nothing's out of order if we consent otherwise. On consent, you can do anything.

The Chair: I could certainly put the question before the committee, Mr Harnick.

Mr Harnick: Why don't we do that?

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The Chair: Do we have consent for a friendly amendment from Mr Harnick? No. It's been dealt with, and unless you want a recorded vote, Mr Harnick, I see that it's been lost.

Mr Harnick: No.

The Chair: Very well. Mr Kwinter.

Mr Kwinter: I understand that section 24 has been negotiated between the Insurance Bureau of Canada, the legal profession, and I have no quarrel with the provisions, but I would like to make an observation and make a recommendation. It is something that just jumped out and drew my attention and I would like to know whether or not you and the parliamentary assistant and the committee would consider the concern that I have.

It's a matter of form. It's not terribly complicated, but when I read subsection (15) it said, "This section applies only to a proceeding for loss or damage arising from the use or operation, on or after the day this section comes into force, of an automobile." When I was listening to the member for Willowdale, I noticed that almost invariably throughout his presentation, he talked about a motor vehicle.

When I look at the word "automobile" it immediately conjures up in my mind a certain type of device, but it has limitations. There are things out there that people are driving that may not be classified as an automobile.

Mr Paul Klopp (Huron): Don't pick on my car. I know it's old.

Mr Kwinter: It would seem to me that given the fact that under the Statutes of Ontario we have a motor vehicles act, the term "motor vehicle" would be far more encompassing than the term "automobile." I respectfully submit that the term "automobile" conjures up certain limitations as to what it is that is being covered by this insurance, whereas the term "motor vehicle" broadens that particular aspect and doesn't limit it.

It would seem to me that it would make some sense -- I apologize for bringing this up so late in the procedure, but it only struck me when I saw that particular application, which said, "This only applies to an automobile." I immediately thought to myself, what about some of these other things? Someone may go into court and say, "With all due respect, Your Honour, this is not an automobile in the way you define it; it is -- " something else.

I would suggest that "motor vehicle" would be a far better description of what we're talking about getting involved in, and I would recommend, again with the indulgence of the committee and the Chairman, that everywhere in this act where it says "automobile," that "automobile" be substituted with the word "motor vehicle." I'd like to hear your comments.

The Chair: I think Mr Endicott may have an explanation for this.

Mr Endicott: Currently, "automobile" is the definition that is used throughout the act and it does include more than what we generally think of as an automobile, which I think in the trade is a private passenger automobile. The definition includes a trolley bus and a self-propelled vehicle and the trailers, accessories and equipment of automobiles but does not include railway rolling stock that runs on rails, watercraft or aircraft. So in fact from a legal point of view, the word "automobile" as it's used in the act does encompass all those other things that you want to encompass with the concept of motor vehicle. The work and effort to go through and collate and make that type of change in any event would be extreme -- the word is serviceable and has been serviceable in the act thus far, so I think that's why it's been continued.

Mr Kwinter: To use the excuse of the kind of work that would go into it, if you have a word processor, you program it to make every word that says "automobile" into "motor vehicle" and it's done. It's really a matter of deciding whether or not the word -- let's face it: We're dealing with words. That's all these things are, words, and people are going to interpret them. I still respectfully submit that the term "motor vehicle" is a more all-encompassing description of the things that we're talking about than the word "automobile."

Again, I turn to the member from Willowdale. It was interesting because I wanted to raise this point even before he spoke, but as I listened to him, and if you check Hansard, you will see that invariably he referred to automobiles occasionally, but most of the time he was talking about motor vehicles. It would seem to me that it would make more sense to use the term "motor vehicle" than to use the term "automobile."

The Chair: Mr Kwinter, can I pose a question to you and just ask, are you concerned about whether the word "automobile" will stand up appropriately in a court of law? Is that why you raise this?

Mr Kwinter: I understand there's a definition that spells out what an automobile is. On the other hand, it would seem to me that there may be other devices that are invented or produced that may fall under the category but are not covered in that particular definition. It would just seem to me that the term "motor vehicle" is a broader term than the term "automobile." As I say, I don't want to make a big deal out of it. I just think that it would make more sense, because we use the term "motor vehicle" in the other acts, and it would just seem to me to be more consistent and have a more encompassing connotation, motor vehicle as opposed to automobile. As I say, I don't want to drag this on indefinitely.

The Chair: I'd like to, then, pose a question to Mr Endicott. Would the word "automobile" in place of "motor vehicle" or vice versa be as successful, carry the same weight, draw the same conclusions in a court of law?

Mr Endicott: Well, I think if you were to substitute, you would then have to decide what "motor vehicle" meant as well. "Motor vehicle," you'd have to define that as well. You'd probably, unless you had a reason not to, wind up using the same definition that you have for "automobile" right now. So I'm not sure that you would get any further, because "motor vehicle" is also fairly generic, and what does that mean? You'd want to have it pretty precise in the act. That's how "automobile" is defined now: the self-propelled vehicle etc. So it's really making a substitution of one word for another on the basis that you feel it's a better descriptor, but you would still have to do that.

Mr Kwinter: The point I am making is that we have a motor vehicle act; we don't have an automobile act. It would seem to me that to have some consistency in our legislation we should be using similar terms and like terms, and that is the point.

The Chair: Any further comment or discussion?

Mr Tilson: Well, I guess I have four minutes.

The Chair: Yes, indeed you do.

Mr Tilson: Some of the concerns I have with this specific section, I'm not quite as trusting as Mr Harnick is with respect to the subject of economic loss. I simply don't trust a government to come up with a definition of "economic loss" and deal with economic loss. I would prefer that it be done in legislation as opposed to the regulations. We don't even know whether it's going to be done. We haven't heard the offer; we haven't heard any statement from the parliamentary assistant. It may or may not be done.

The whole issue of liability of other persons may or may not be a good thing, although obviously it would benefit someone to be involved in a motor vehicle or automobile accident with one of these other persons, such as the person who repairs your motor vehicle or a host or hostess who is serving alcohol at a party or a bartender, someone like that, one of that group of people, of which there's a number; it would pay the innocent accident victim. In other words, the drunk driver, there's no fault with him or her, but there is with respect to these other people; a very strange issue.

With respect to the meaning of words, your government, Mr Owens, the New Democratic Party, when you were opposing OMPP, expressed much concern as to the words "serious and permanent," and now we're having a whole slew of other words which, notwithstanding the fact that the words may be defined by a court, the government of the day, through regulations, could overrule that government, and I don't find that acceptable.

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Mr Klopp: You said "government" instead of "court."

Mr Tilson: That's exactly what I mean, that a court of law can interpret these words and through the regulation section, subsection 13 on section 5, a government, through regulations -- in other words, it doesn't have to return to the Legislature -- can literally overrule a court of law, can redefine judicial interpretation of specific words. That's what it means. The Lieutenant Governor in Council can make regulations defining what "serious impairment" means, notwithstanding the fact a week earlier or a day earlier a court of law may make the same definition.

The whole issue of non-pecuniary loss is going to be left vague because of the lack of consistency as to whether there will be economic loss or satisfactory economic loss.

The subject of deductibles: There is one set of deductibles for $10,000 and $5,000 under the Family Law Act. The cost section is certainly a section which will make the legal community quite happy. I find interesting that this government that has taken so many shots at the legal community, rule 12 simply will --

Interjection.

Mr Tilson: Exactly. That's exactly what's happening. The legal community will be most happy with this section. The whole subject of --

Mr Owens: Including Charlie Harnick.

Mr Tilson: You can take whatever shots you want. Mr Chairman, if I could continue in the great amount of time that I have, which may be 30 seconds now --

The Chair: Yes, about that, Mr Tilson.

Mr Tilson: -- the topic of following the whole process of determining what these deductibles will be, which will change from time to time, is going to be based on Statistics Canada. Why that index? Why not other indices? There are all kinds of other indices that could be followed, the average industrial index etc. It's very strange that one would arbitrarily pick that one.

The whole point of having many of these things in -- you're getting ready to bang? Am I finished, Mr Chairman? The whole point of having a piece of legislation is that it is going to be consistent. With this bill and this amendment, the law will remain inconsistent. Insurance companies, the legal community and most of all the innocent accident victim will now be dealing with a law that is uncertain and inconsistent because of the vague provisions of this regulation. I understand --

The Chair: Thank you, Mr Tilson. It's now a little bit past 5 of the clock. I've been lenient; probably shouldn't have been. However, I'll remind all the members of the committee that at 5 pm today, "those amendments which have not yet been moved shall be deemed to have been moved and the Chair of the committee" -- that's me -- "shall interrupt the proceedings and shall, without further amendment or debate, put every question necessary to dispose of all remaining sections of the bill and any amendments thereto." Furthermore, "Any divisions required shall be deferred until all remaining questions have been put and taken in succession with one 20-minute waiting period allowed pursuant to standing order 128(a). That the committee be authorized to continue to" --

Mr Harnick: Dispense.

The Chair: If all the members of the committee would just bear with me for one moment.

Shall the amended government motion to section 3 of the bill carry? Carried.

Shall the PC motion to section 3 of the bill carry? No, it's not carried.

Shall government motion subsection 7(1) of the bill carry? Carried.

Shall section 7, as amended, carry? Carried.

Shall the Liberal amendment to section 8, subsection 61(4.1), carry? No.

Shall the Liberal motion on section 8 of the bill, subsection 61(9) of the Insurance Act, carry? No.

Shall section 8 carry? Carried.

Shall section 11 of the bill carry? Oh, my apologies, there's a government amendment. Shall government motion on section 11 of the bill carry? Carried.

Shall section 11, as amended, carry? Carried.

Shall the government motion subsections 12(1) and 12(2) of the bill carry? Carried.

Shall government motion subsection 12(3) of the bill carry? Carried.

Shall government motion subsection 12(4) of the bill carry? Carried.

Shall the government motion on 12(6) of the bill carry -- that's not an amendment. Shall subsection 12(6) of the bill carry? Carried.

Shall subsection 12(8) of the bill carry? Carried.

Shall section 12, as amended, carry? Carried.

Mr Harnick: Excuse me. I may be a little behind again, but I think you were just talking about subsection 12(8).

The Chair: That's right, Mr Harnick.

Mr Harnick: Did we deal with 12(8.1)?

The Chair: It was carried on June 17, 1993.

Mr Harnick: We've already done that one?

The Chair: Yes, we have, and we have done all the rest of Bill 12 -- section 12, rather; Bill 12 would be nice too, probably.

Shall section 24, as amended, carry? I'm sorry, shall the government motion which we just debated, section 24 of the bill, carry? Carried.

Shall section 24, as amended, carry? Carried.

Shall government motion subsection 25(1) of the bill carry? Carried.

Shall section 25, as amended, carry? Carried.

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Shall government motion section 26 of the bill carry? Carried.

Shall 26, as amended, carry? Carried.

Shall government motion subsection 27(2) of the bill carry? Carried.

Shall government motion subsection 27(2), subsection 271(1.4) of the act, carry? Carried.

Shall section 27 of the bill, as amended, carry? Carried.

Shall section 28 of the bill carry? Carried.

Shall government motion section 29.1 of the bill carry? Carried.

Shall section 29, as amended, carry? Carried.

Mr Harnick: Excuse me. I may have missed something in your haste, but is it not 29.1?

The Chair: You're absolutely correct, Mr Harnick, and I thank you for drawing that to my attention.

Mr Harnick: I'd hate to have to go back and do this all over again.

The Chair: Likewise, Mr Harnick. Thank you.

Shall section 29 of the bill carry?

Mr Harnick: What about 29.1?

The Chair: We actually did that first, didn't we?

Okay, shall the government motion, the amendment section 29.1 of the bill, carry? Carried.

Shall government motion section 30 of the bill carry? Carried.

Shall section 30 of the bill, as amended, carry? Carried.

Shall the PC motion, the amendment to section 289 of the Insurance Act, carry?

Interjections.

Mr Tilson: Mr Chairman, I'd like to plead discrimination. There are all these sections. You don't --

Interjection: I'm incredulous. That's a terrific amendment.

The Chair: Order. We are undertaking --

Mr Tilson: You rush through the government sections. Then you come to a Progressive Conservative motion --

The Chair: Mr Tilson, you're out of order. We are proceeding with --

Mr Tilson: -- the amendments, and that just suddenly wakes these people up, and then they vote against it.

The Chair: I appreciate your concerns, Mr Tilson, but you are out of order.

The Chair: Shall section 31 of the bill carry?

Interjections.

The Chair: If I could have the committee members' attention, we are undertaking voting proceedings here and it would certainly assist the Chair if I could hear clearly.

Shall section 31 of the bill carry? Carried.

Shall section 32 of the bill carry? Carried.

Shall section 33 of the bill carry? Carried.

Shall section 34 of the bill carry? Carried.

Shall section 35 of the bill carry? Carried.

Shall the government motion section 35.1 of the bill carry? Carried.

Shall section 36 carry? Carried.

Shall section 37 of the bill carry? Carried.

Shall government motion section 38 of the bill, subsection 413.1(1) of the Insurance Act, carry? Carried.

Shall government motion section 38 of the bill, subsection 413.1(2) of the Insurance Act, carry? Carried.

Shall government motion section 38 of the bill, clause 413.1(5)(a) of the Insurance Act, carry? Carried.

Shall section 38, as amended, carry? Carried.

Shall section 39 carry? Carried.

Shall section 40 carry? Carried.

Shall section 41 carry? Carried.

Shall section 42 carry? Carried.

Shall government motion section 43 of the bill, subsection 417.1(1) of the Insurance Act, carry? Carried.

Shall section 43, as amended, carry? Carried.

Shall section 44 carry? Carried.

Shall section 45 carry? Carried.

Shall section 46 carry? Carried.

Shall section 47 carry? Carried.

Shall section 48 carry? Carried.

Shall government motion subsection 49(5) of the bill carry? Carried.

Shall PC motion subsection 49(7) of the bill carry? Lost.

Shall government motion subsection 49(8) of the bill carry? Carried.

I want to read into the record, shall PC motion subsection 49(11) of the bill, subsection 14(4) of the Compulsory Automobile Insurance Act, carry?

Mr Tilson: Can we have a recorded vote on that?

The Chair: Pardon me, Mr Tilson?

Mr Tilson: I want a recorded vote on that.

Interjection: Charles says no.

Mr Harnick: No, you should have a recorded vote. It's an important section.

Clerk of the Committee: All those in favour?

Ayes

Harnick, Kwinter, Tilson.

Clerk of the Committee: All those opposed?

Nays

Dadamo, Huget, Klopp, Mathyssen, North, Owens.

The Chair: Thank you. We have a recorded vote, Mr Tilson.

Shall government motion subsection 49(11) of the bill, subsection 14.1(2) of the Compulsory Automobile Insurance Act, carry? Carried.

Mr Kwinter: On a point of order, Mr Chairman: Is that subsection 49(11)?

The Chair: Yes, it was.

Mr Kwinter: In my record, it shows as 49(8).

The Chair: The number at the top of the page is 37A.

Mr Kwinter: What happened to 36A?

The Chair: No, it goes, 36, 36A. We did 36A, Mr Kwinter. I will continue. Mr Kwinter, you're okay with that now?

We are now at PC motion subsection 49(12) of the bill, clause 15(c.1) of the Compulsory Automobile Insurance Act. Carried? Not carried.

We are now at government motion subsection 49(13) of the bill, subsection 15(2) of the Compulsory Automobile Insurance Act. Carried? Carried.

Shall section 49, as amended, carry? Carried.

Shall section 50 of the bill carry? Carried.

Shall government motion section 51 of the bill, the Motor Vehicle Accident Claims Act, carry? Carried.

Shall section 51 of the bill, as amended, carry? Carried.

Shall government motion section 52 of the bill, sections 10 and 17 of the Workers' Compensation Act, carry? Carried.

Shall section 52 of the bill, as amended, carry? Carried.

Shall section 53 carry? Carried.

Mr Harnick: Excuse me. How upset would you get if I asked for our 20 minutes right now? I'm just pulling your leg.

Mr Owens: I appreciate that.

The Chair: I wouldn't get upset, but --

Mr Owens: Charlie, I'm here till midnight whether we take 20 minutes now or 20 minutes later.

Mr Harnick: How about we take 20 minutes and order in a pizza?

The Chair: Thank you for bringing that to our attention, your rights, Mr Harnick.

Mr Harnick: I just thought it would look better if you spent the 20 minutes because it would have looked like you spent more time deliberating on the bill.

The Chair: I understand, Mr Harnick.

Mr Harnick: I was just looking out for your own interests.

The Chair: It's appreciated.

The final and last section of the bill is section 54. Shall section 54 carry? Carried.

Shall the title carry? Carried.

Shall I report the bill to the House as amended? Carried.

Thank you very much.

This committee will meet next on Thursday, June 24, 1993, at 4 pm for a post-budget briefing by the Minister of Finance.

The committee adjourned at 1722.