RENT CONTROL ACT, 1991 / LOI DE 1991 SUR LE CONTRÔLE DES LOYERS
CONTENTS
Wednesday 29 January 1992
Rent Control Act 1991, Bill 121 / Loi de 1991 sur le contrôle des loyers, projet de loi 121
STANDING COMMITTEE ON GENERAL GOVERNMENT
Chair / Président(e): Brown, Michael A. (Algoma-Manitoulin L)
Vice-Chair / Vice-Président(e): McClelland, Carman (Brampton North/-Nord L)
Abel, Donald (Wentworth North/-Nord ND)
Bisson, Gilles (Cochrane South/-Sud ND)
Harrington, Margaret H. (Niagara Falls ND)
Mammoliti, George (Yorkview ND)
Marchese, Rosario (Fort York ND)
Marland, Margaret (Mississauga South/-Sud PC)
O'Neill, Yvonne (Ottawa-Rideau L)
Poole, Dianne (Eglinton L)
Turnbull, David (York Mills PC)
Winninger, David (London South/-Sud NDP)
Substitution(s) / Membre(s) remplaçant(s):
Haeck, Christel (St Catharines-Brock ND) for Mr Marchese
Jackson, Cameron (Burlington South/-Sud PC) for Mr Turnbull
Morin, Gilles E. (Carleton East/-Est L) for Mr McClelland
Owens, Stephen (Scarborough Centre/-Centre ND) for Mr Bisson
Clerk / Greffier: Deller, Deborah
Staff / Personnel: Baldwin, Elizabeth, Legislative Counsel
The committee met at 1014 in committee room 1.
RENT CONTROL ACT, 1991 / LOI DE 1991 SUR LE CONTRÔLE DES LOYERS
Resuming consideration of Bill 121, An Act to revise the Law related to Residential Rent Regulation / Projet de loi 121, Loi révisant les lois relatives à la réglementation des loyers d'habitation.
Section 78:
The Chair: The business of the committee is to review Bill 121 clause by clause. Yesterday at the completion of the day we were about to take up subsection 78(3).
Questions, comments or amendments to subsection 78(3)? Shall subsection 78(3) carry? Carried.
Subsection 78(4). Questions, comments or amendments? Shall subsection 78(4) carry? Carried.
Subsection 78(5). I see that we have a Liberal motion.
Ms Poole: The Liberal caucus does have an amendment with regard to subsection 78(5). I wonder if we could stand this section down. I will give you my reason for requesting unanimous consent to do so. Yesterday we discussed accepting telephone evidence. I was quite uncomfortable with some of the things that were said in some of the discussion. Some of the facts brought forward by the minister and the ministry directly contradicted some of the information I had been given. I wonder, since we are having the rent wizard come to us this afternoon at 2 o'clock, if we could stand down this section and also talk to the rent wizard about telephone evidence or, in the event the ministry would feel it more appropriate to have somebody else deal with these types of questions, to invite that person.
Ms Harrington: Mr Chair, maybe you could clarify for me. We did have the discussion under subsection 78(2) with regard to telephone conversations, did we not?
The Chair: We have.
Ms Harrington: And that has been voted on?
The Chair: We have.
Ms Harrington: A decision has been made in subsection 78(2). Your amendment to 78(5) was to follow along with your concerns expressed in 78(2)?
Ms Poole: That is right.
Ms Harrington: My understanding is that the decision was made with regard to whether telephone evidence could be given. We did have a fairly full discussion on that. You are certainly welcome this afternoon to ask any type of questions of our expert.
Ms Poole: I am not prepared to entertain passing this section at this time. I had not wanted to do it in this manner, but if necessary I will raise it as a point of order. Yesterday we received information which at best could be kindly called misleading. It could have a variety of other names, but it was certainly not accurate and it was presented to our committee as accurate information. I feel we voted on a section with information that did not accurately portray what is actually factual. I would like to reopen 78(2). I had preferred to do it in a kinder, gentler way, by asking the questions of the rent officer this afternoon, but if there is not unanimous consent to stand down this section, then I will do it in another way.
Ms Harrington: I am at a loss. I do not have the transcripts from yesterday but I do not know what you are referring to. Since this is your amendment raising this issue at this particular juncture, maybe this is the appropriate time to deal with it.
Ms Poole: If that is the preference of the parliamentary assistant, I am certainly willing to do it.
Mr Mammoliti: I am a little confused here. I apologize if I was not paying attention, but what is the reasoning behind it, Dianne, if you do not mind my asking?
Ms Poole: For Mr Mammoliti's explanation I will say to him that yesterday we had a fairly lengthy discussion of telephone evidence and the admissibility of evidence from witnesses by telephone. Certain information was given by the minister and Ministry of Housing that appears to have been grossly inaccurate. We voted on this section pursuant to that information and I am extremely uncomfortable with the fact that we did so. I had wanted to ask for unanimous consent to stand down this section until 2 o'clock this afternoon, at which time we will have the chief rent officer or ministry official come before us, to discuss some of these ramifications with that person and get his viewpoint.
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Mr Mammoliti: But the parliamentary assistant prefers to do it now.
Ms Poole: But the parliamentary assistant has said she prefers to do it now.
Mr Owens: I think that if what I am hearing is accurate, I gently suggest that what you are suggesting is that perhaps the minister misled the committee yesterday. If you feel that, then I think it is incumbent upon you to place what you feel is perhaps the correct information on the record before we make any decision as to whether we should stand this clause down, if this is what you are saying has happened.
Ms Poole: I would be happy to do that. Yesterday when I was talking to the minister about this section several assertions were made. The first was that this telephone evidence was used under the RRRA with the appeals board, which was called the hearings board under the RRRA. I have spoken to two members of the appeals board, one former member and one current. They have both confirmed that under no circumstances did they ever accept evidence from witnesses by telephone and that, in the cause of natural justice, they did not communicate with witnesses at any time other than during the hearing. Telephone evidence was clearly not accepted. They followed this up by saying that they were reluctant even to accept affidavits, because of the fact that they could not cross-examine. But certainly in the case of telephone evidence it was very clear that for a number of reasons -- first, identification; second, the lack of the ability to establish credibility, and third, by the rules of natural justice, which have always prevailed -- the accuser and the accused meet face to face in the hearing to discuss what is happening.
Mr Owens: Can I ask you a question in response to that? Are you prepared to share the names of the individuals who provided you with that information, so that we can follow it up?
Ms Poole: No, I am not, but I would certainly be more than happy if we had a member from the appeals board. Obviously you must realize this information was given to me on a confidential basis because nobody wants to jeopardize his job.
Mr Owens: Sure. My intent is not to conduct a witchhunt but to satisfy in my mind the validity of the statements that were made.
Ms Poole: I would be more than happy if this committee were to call any witness from the appeals board to substantiate or refute what I have been given by two separate members.
Ms Parrish: As a staff person, I would like to put on record that there are times when staff give information in which their recollection is faulty, they do not understand the question or they may not be very smart, but staff, including myself, never give information which is deliberately misleading. I just want to put that on record because I want to say that my staff and I do our very best to serve you in a non-partisan fashion.
I do not have the Hansards. My recollection was that I did not say that the hearings board staff do this now. What I said was that the provision is in the current statute and I read from subsection 107(2) of the RRRA, which says,
"(2) The board" -- which refers to the hearings board -- "in respect of any appeal" from an administrative review "may, (a) conduct any inquiry or inspection of documents or premises that the board considers necessary; and (b) question any person by telephone or otherwise."
That is the provision in the RRRA and that was the reference I intended. If I suggested something else in the course of conversation, I will have to check that. My recollection was that I was referring to the existence of this provision in the statute. If at any time during the course of the hearing I have given information which is incorrect, I do want to say to the committee that I am most sorry and that if we do this, it is only entirely through inadvertence, fatigue or perhaps my own not being very smart. My recollection was that I referred to the statutory provision and not that practice of the board.
If Ms Poole would like, I can make further inquiries to the board as to whether there have been any examples where they do this. I do know that in administrative review it is quite common for us to call people and, for example, in subsection (5), where we may be doing an inspection or whatever, it is quite common to phone people and say, "Do you have your accounting report?" or whatever.
I just want to put that on record, and certainly I will read Hansard. If I was incorrect, I am sorry. I know I was not deliberately attempting to mislead.
Ms Poole: I would certainly like to respond to Ms Parrish. First of all, I would like to say that in no way, shape or form was I intending or certainly wanting to give anybody the impression that there was anything deliberate in this. Second, I have the absolutely highest regard for Ms Parrish and the information she provides us with. I think, without exception in this room, she knows more about this legislation than any other person, and she is extremely intelligent, knowledgeable and helpful to us. This is why I had actually wanted to deal with it in another form this afternoon by talking to the chief rent officer or representative about this matter, because I did not want any inference that there was something inappropriate done.
However, this committee -- certainly myself; I cannot speak for all committee members -- when I heard that yesterday, I was under the impression that the current practice under the RRRA was that telephone evidence was considered by the appeals board. That was certainly my own impression. Whether other members had that interpretation I could not say. I was quite -- not upset, but concerned about this last night.
Because my husband is a lawyer, we have a large circle of lawyer friends, so I contacted six different lawyers who have acted for various quasi-judicial boards and tribunals, because the other thing that was said yesterday was that this is becoming a more common practice. I wish I had the Hansard. I actually phoned Hansard this morning to see if it was ready, and of course it is too soon and would not be available until this afternoon, but there was a comment made about the fact that this is a more common practice now, to use telephone evidence. Each of the six lawyers I talked to say that it is unheard of in any quasi-judicial tribunal or hearing to use telephone evidence.
These lawyers collectively have acted extensively with the Ontario Municipal Board, the Environmental Assessment Board, the Workers' Compensation Board, the Workers' Compensation Appeals Tribunal, the Immigration and Refugee Board, the Social Assistance Review Board, the Assessment Review Board and the UIC appeals tribunal, so you can see their experience is quite extensive.
What they said to me is that the only condition under which telephone evidence was admissible -- and this is again relatively rare -- was by argument and when the legal counsels were having a conference call. So you are talking about the group of lawyers who are acting for the various parties having a conference call. But they were all very emphatic that you do not do it with witnesses.
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There were a number of reasons. The first reason they gave was the difficulty of identification. Even if you phoned a number which is allegedly the number you are trying to reach to talk to this witness, call-forwarding mechanisms and all sorts of other things might create difficulties.
The second and certainly one of the major concerns was the test of credibility. As I said, dating back basically to I think the times of Henry II with the judicial system, it has been the practice that it would be face to face in a tribunal or a court of law, and there are reasons for this.
The first thing is that facial expressions or body language are extremely important in determining credibility. Whether somebody suddenly starts sweating profusely at a certain point or gets nervous, starts contradicting himself under the gimlet-eyed glare of the counsel, certainly these things are all helpful in this face-to-face discussion.
There is also the matter of swearing in. They said if you have telephone evidence, it is impossible to determine whether the person on the other line is intoxicated or under the influence of drugs. They also said that there was a very major problem in that the person might be coached or scripted or in fact a gentle type of coercion might be used.
I will give you two examples. There could be people who are not well versed in this kind of thing. They are on the other end of the telephone, nobody can see them, and they are reading from a script that somebody has asked them to read. Or somebody can be sitting beside them going like this or like that or coaching them. It could be a landlord's representative, for instance, in another type of scenario where the landlord's representative has said, "We'll do these nice things for you if you testify for us," and he is sitting there coaching the witness. It could be anything. But the major point they were making is, how can the decision-maker assess the credibility?
Mr Owens: On a point of order, Mr Chair: I understand what Mrs Poole is saying, but I am wondering how this goes to her request that we stand the clause down.
The Chair: This is an unusual thing.
Mr Owens: I do not think discussing how we produce evidence in hearings is germane to the request.
The Chair: This is an unusual debate in terms of procedure, but I think it is helpful. What I think we are trying to ascertain is, do we have the facts right?
Mr Owens: I think Mrs Poole has made her point with respect to the reasons why she would want the clause stood down and it appears she is now going into presenting argument on why we should not have a clause with respect to collecting telephone evidence. I think we have crossed the line.
The Chair: However, Mr Owens, to be fair, I believe I heard a request from Mrs Poole to justify her reasons.
Mr Owens: I thought she did that in the first 60 seconds of her comments.
Mr Jackson: On the same point of order, Mr Chair: I believe it would be helpful to completing this process if we revisit the request to stand down this section so we can proceed immediately, and more appropriately revisit the clause after we have had occasion to discuss the matter with the rent officer designate. I think that might come closer to Mr Owens's concerns, and I am sure Mr Mammoliti has had his question answered. I think that would be helpful to the process. I have not moved to participate in the debate and would be willing to once I get the signal that this is what we are going to debate for the next hour or two until the officer comes at 2 o'clock. Maybe it would be helpful if we could just stand it down and get on, because I really would like to proceed with this legislation.
The Chair: It was a point of order of course, and as I said, this is an unusual debate. But I believe the committee has operated quite well in the last few days, if not all the time, and in the spirit of cooperation, I am allowing this discussion.
Mr Owens: True, and I appreciate the comments Mrs Poole is making. But I think Mr Jackson makes a good point that, in terms of discussing the issue, it might be better if we hold that until later today when the officer is here, as well as when we have had a chance to examine the Hansard. My colleagues may not necessarily agree with that.
Mr Jackson: I would like to move to stand down this section.
The Chair: We have a request for unanimous consent to stand this section down.
Agreed to.
The Chair: Subsection 78(6). Questions, comments or amendments to subsection 78(6)? Shall subsection 78(6) carry? Carried.
Section 79:
The Chair: Questions, comments or amendments to section 79? Shall section 79 carry? Carried.
Section 79 agreed to.
Section 80:
The Chair: Questions, comments or amendments to section 80, as printed?
Mr Mammoliti: Mr Chair, section 80, not subsection 80(1). Am I correct?
The Chair: I called the entire section.
Mr Mammoliti: Perhaps you can help me, Ms Harrington. We have a government motion here, if I am not mistaken.
The Chair: I said "as printed."
Mr Mammoliti: As printed in our book?
The Chair: Yes.
Ms Poole: Sorry, I was not working with the revised copy. I was just going to say I did not have an arrow indicating it was a printed amendment. Thank you.
Section 80, as amended, agreed to.
Sections 81 and 82 agreed to.
Section 83:
The Chair: Questions, comments or amendments to section 83? Ms Poole, do you have a Liberal amendment?
Ms Poole: Yes, I do, Mr Chair.
The Chair: Mrs Poole moves that section 83 of the bill be struck out and the following substituted:
"Frivolous or vexatious proceeding
"83(1) A rent officer shall dismiss a proceeding if, in his or her opinion, the matter is trivial, frivolous or vexatious or has not been initiated in good faith.
"Fraud
"(2) A rent officer may require an inspector to investigate the conduct of a proceeding if he or she has reason to believe that a party may have filed documents that the party knew or ought to have known were fraudulent.
"Idem
"(3) A rent officer shall dismiss a proceeding if he or she finds that the applicant filed documents that the applicant knew or ought to have known were fraudulent.
"Idem
"(4) A rent officer shall not consider any documents filed by a party other than the applicant if he or she finds that the party filed documents that the party knew or ought to have known were fraudulent.
"Idem
"(5) A rent officer may also award costs against a party if he or she finds that the party filed documents that the party knew or ought to have known were fraudulent."
An explanation?
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Ms Poole: This amendment is in the same spirit as the one on coercion and misleading representations. This section basically beefs up the act in areas where there has been a trivial, frivolous or vexatious application made or where something has not been initiated in good faith or if there were fraudulent documents.
One of the problems I have encountered over the last number of years is that there was no actual penalty for somebody who did submit a fraudulent document or was introducing a trivial, frivolous or vexatious element to the matter. That is why I added this section about costs, saying that the rent officer would have that jurisdiction to award costs against a party if the party filed documents that were fraudulent. The cost deals specifically with the fraudulent part, because we feel this is the most serious case by far.
I hope the government will support this particular amendment. If there is anything about the wording that they feel is not appropriate or if they have any difficulties that can be remedied, I certainly would be more than willing to accept friendly amendments and put them in a format acceptable to the government.
Ms Harrington: We are considering this. I am not sure why we do not have something in writing. I wanted to ask you about the change in wording from "may discontinue" to "shall dismiss." What is your view of how that changes the legislation?
Ms Poole: We want to strengthen it basically. I do not have much use for people who do things out of spite or to be vexatious or who do things that are trivial or frivolous. It could be on either a landlord's or a tenant's part for that matter. A landlord might possibly, for no other reason, in certain circumstances put in an application to harass tenants and not have justifiable grounds but for that reason. By the same token, sometimes a tenant might do the same thing. Particularly now with the rent reduction sections about neglect and inadequate maintenance, a tenant could institute a frivolous, trivial or vexatious application. We feel that in either situation it should not be tolerated. The minister mentioned yesterday the cost of hearings and the cost of the system, and it would seem to me we want to really discourage this.
Giving the rent officer the discretion does not seem to make sense, because why would we allow a frivolous or vexatious application or a fraudulent matter to proceed? I cannot think of circumstances where these cases occur where the rent officer should have discretion. I think it is fairly clear-cut. We also want to make sure that people are discouraged and do not enter into a great debate about whether the rent officer should or should not be doing it.
Ms Harrington: I wanted to ask Ms Parrish how she views the change from "may discontinue" to "shall dismiss."
Ms Parrish: We have discussed this with the minister. I do not think she has a problem with moving from "may" to "shall" and your points are well taken, similar to what she said yesterday, to my recollection.
The difference that we see here is a very minor one. I do not know whether you intend it or whether you do not. We say "discontinue"; "dismiss" is different in the sense that if you dismiss you have to issue an order and it involves a lot more song and dance. We have to have written reasons and all that jazz. I guess I am not sure whether you mean "dismiss" because you want us to issue an order or whether you mean "discontinue."
Ms Poole: Actually, I thought "dismiss" was a stronger word. I thought "discontinue" might mean that it can be continued at another time.
Ms Parrish: No. The only difference is that if we dismiss we have to issue an order saying, "We dismiss your case and this is why." "Discontinue" means that just your application --
Ms Poole: It dies?
Ms Parrish: It dies, right.
Ms Poole: So it could not be revived. If that is the case, Mr Chair, I would be pleased to put it back to the original wording and use "discontinue" rather than "dismiss." I thought I was strengthening it but obviously it just makes it a more difficult task.
Ms Parrish: The other point we would make here is that in subsection (2) and subsequently you used the term "fraudulent." The term "fraudulent" is not used in the act. The term that is used in the act and the offence that relates to this is "false and misleading information in applications." If the intent of the section is to tie this into a prosecution under the statute, it does not work.
The offence as set out in clause 124(1)(a) on page 70 of your reprinted version is not "fraudulent," but "false and misleading information." The word "fraudulent" introduces this other thing in which one could wonder whether it was intended to be something other than false and misleading information. Usually "fraudulent" conjures up a vision of "fraudulent" under the Criminal Code. I am not sure we want to have to meet those tests, which are probably different from our tests, so there was also some uncertainty as to that.
The last thing I would say is that we do have some concern about the direction in subsection 83(2) that there should be an investigation in every case. We certainly have the capacity to do this, because if you changed all this language to "false and misleading," you would have an offence and it would then tie into subsection 124(1). The problem with always doing an investigation is that you may have cases in which there is fraud at a criminal level. When that occurs the police come in and we back out because it is inappropriate for us to be in there doing investigations in the middle of a police investigation. That is the protocol, to draw the line between provincial prosecutions or proceedings and criminal prosecutions and proceedings.
I would have some discomfort level at requiring this investigation when in fact we may have a situation involving white-collar crime in which the OPP tells us not to do this because we may in fact tarnish their investigation. That does happen. I do not want to give you the impression that this is a widespread practice, but it does happen. I guess we are somewhat cautious, when exercising prosecutorial powers, to exercise them in a way which does not in any way constitute an inappropriate whatever. I guess our concerns are largely those two language issues around "false and misleading" and "discontinue," and then some concern that subsection 83(2) may be problematic because of this unusual situation, but it does occur.
The last is that our act does not have any provisions for rent officers to impose costs. There are no tests for the impositions of costs. For example, if we impose costs we would have to say what kind of costs: on the Supreme Court scale, on the county -- there would have to be some test. We have no powers in the statute for rent control officers to impose costs. We are reluctant to get into the imposition of costs because of the nature of the parties before the tribunals and the added element of the imposition of costs in all the circumstances. We are reluctant to get into the imposition of costs. However, we certainly would be prepared, if the member were interested, to work on those other areas of the amendment and perhaps rework it to retable it, if that is agreeable to the members of the committee and to the proponent of the motion.
Ms Harrington: I believe Ms Parrish has explained why we have not drawn up something further because we have concerns about subsections (2) through (5). With regard to subsection (1), I believe we have agreed that we would look favourably on your amendment to change "may" to "shall." That is my understanding of our conversation, if you would like to proceed on that basis.
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Ms Poole: I would certainly be quite amenable to going with Ms Parrish's suggestions in this regard. Certainly with regard to "fraud," if indeed "fraud" is only considered under the parameters of the Criminal Code, if the word is used in that context, then it makes sense instead of that to change it to wording which corresponds with what is in the act. We are quite happy to use "discontinue" instead of "dismiss" if it has the same force and effect, but without the bureaucratic difficulties.
As to costs, I knew there was no provision for costs under this statute. My concern is if there is -- I will use the word "fraudulent," but I guess I should the words "false and misleading" -- if there is a situation where a party knowingly files this type of documentation or ought to have known that it was misleading information.
I guess there is a penalty in that if the landlord has gone ahead and done all the capital repairs and his or her application is dismissed, then he or she will not be reimbursed for the cost of those capital repairs. I am not sure I see a penalty on the tenant's side if it were a tenant applicant who did the same thing. The application is obviously dismissed, but it would not be any monetary penalty. I am just trying to get some sort of provision that would deal with both sides in the same way, in a very fair and partial way, but I certainly understand the difficulties you have outlined about not wanting to get into cost. Would you have any other suggestions for something that we could substitute for subsection (5) which would have the same intent without the same logistical problems?
Ms Parrish: I should say that if there is a prosecution, the person can be fined and the fines are fairly substantial. It does seem to me that it is the ultimate penalty that you are exercising if someone has abused the system. Of course if you have a fine it is the crown that gets the money; it is not the other person. On the other hand, if this is a landlord, for example, he may have tabled information which is false and misleading. But he may in fact have justified capital increases and he will lose them, so he has paid that penalty.
In the case of tenants, they may have brought in evidence that was false and misleading against the landlord, but they may in fact have other good evidence which they have now lost and therefore they lose their opportunity to reduce the rent, so at some level these individuals may already have been penalized. They may also be prosecuted and they may have a fine imposed upon them which, depending on a number of elements that the court would consider, could be fairly significant.
It was a lot of trouble for me to go to this hearing. I had to come and take time off work and all that kind of stuff but I guess that is an issue throughout the statute. People may feel they have come and people will ask for an adjournment, for example, because of illness or whatever and they have to take time off work. It is just not here that those kinds of inconveniences occur. Then I think you do have to deal with the wider issues.
I do not have a magic solution. I think that the current policy, as I understand it, is a reluctance to introduce these cost powers. Given the kind of decision-making and the kinds of parties that will be before the hearings it does not seem appropriate. It is not like you are dealing with two developers going head to head at the Ontario Municipal Board or whatever. I do not know whether, and perhaps my colleagues can help me, there are cost proceedings in the RRRA now. Does the hearing board have the ability to impose costs? I do not think so. I know that the Ontario Municipal Board does have the power to impose costs but it is very rarely used, and it is usually only used in very extreme kinds of cases.
Ms Harrington: Just briefly, in the interest of trying to move ahead, I believe we have agreed to an amendment to subsection (1). I believe, hearing that, we would like to have a brief look at the costs. In the interest of moving on, maybe we could then stand down the rest of Ms Poole's amendment. Hopefully this will not make too many sections go down.
The Chair: It is increasing. I have Mr Mammoliti on my list.
Mr Mammoliti: Thanks, Mr Chair. On a personal note, I do not mind standing it down, with the understanding that we are going to look at amending the amendment per se. To what degree, I guess we would have to talk about.
The Chair: The Chair might suggest that one of the things we might do is have Ms Poole withdraw this amendment and have another amendment replace it. That is another option we have, and to stand down the original section.
Ms Poole: I would be happy to withdraw this amendment. Legislative counsel, together with ministry representatives, has --
Ms Baldwin: No, I have not talked to the ministry.
Ms Poole: I am sorry. Legislative counsel has come up with a drafting suggestion which incorporated the concerns of the ministry plus the intent of our resolution, which is satisfactory to me. What I would propose is that she pass it by the ministry for their approval, it could be typed up over the lunch hour, and we could vote on it this afternoon without further debate.
The Chair: Mrs Poole has withdrawn her amendment to section 83. Could I have unanimous consent of the committee to stand down section 83?
Agreed to.
Section 84:
The Chair: Questions, comments or amendments to section 84? I believe it is an original section from the original bill. Questions or comments? Shall section 84 carry? Carried.
Section 84 agreed to.
Section 85:
The Chair: Questions, comments or amendments? Again, we are dealing with a section as originally in the bill. Shall section 85 carry? Carried.
Section 85 agreed to.
Section 86:
The Chair: Questions, comments or amendments?
Ms Poole: Mr Chair, I have an amendment that we have labelled 86.1. Do we deal with this now or do you deal with 86 first?
The Chair: I will deal it after we deal with this particular section. Questions or comments to section 86? Shall section 86 carry? Carried.
Section 86 agreed to.
The Chair: Ms Poole moves that the bill be amended by adding the following section:
"Hearing recorded
"86.1(1) Every hearing shall be recorded in its entirety in a manner that permits the preparation of a typewritten transcript or audio recording.
"Transcript
"(2) If a party so requests, the official examiner or person who recorded a hearing shall prepare and complete a typewritten transcript of the hearing within four weeks after receiving the request or an audio recording of the hearing within two weeks after receiving the request."
An explanation?
Ms Poole: I think this amendment basically speaks for itself, but of course that shall not prohibit me from speaking forth and to it. The reason we have introduced this amendment is that both sides to hearings and applications have complained they have nothing afterwards as evidence of what went on or what was said. So we have provided two options. The first is that there be a typewritten transcript; the second is that there be an audio recording. The audio recording, I believe, would be a far cheaper and more cost-effective way of dealing with it. The typewritten transcript, I understand, is a fairly expensive process, so the ministry would then have to take that into its calculations. But it certainly would be, from my understanding of the way this is drafted, that this would be at the option of the ministry, not the option of the person requesting the material.
We felt that four weeks was a reasonable amount of time to provide a typewritten transcript, and two weeks for an audio recording, but again, if the ministry feels these time frames are inadequate in any way, we would certainly be prepared to reconsider the wording of this particular amendment.
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Ms Harrington: I certainly appreciate the intent of the Liberal motion, but our staff has advised me that we are looking at close to $1 million in cost. We feel we want to keep this process, as we discussed with the issue of cost awarding, to as simple a level as possible and as efficient and cost-efficient a level as possible. We have looked at this, but at this point we do not want to get into this kind of obligation for paperwork. The last point is that if people would like to know what happened, they are certainly free to bring in a cassette and record it themselves. That is no problem.
Ms Poole: Was that estimate of $1 million for the transcripts or for the audio recording?
Ms Harrington: I was thinking that myself. I have the written number here, $950,000. Your bill actually says "or," so I am wondering which one that is too. Do you happen to have an idea on that?
Interjection: It is both the recording and the transcription.
Ms Harrington: Both. So you have estimated a written transcript and an audio of each hearing.
Ms Poole: As I mentioned, I think the typewritten transcript would be considerably more expensive than the audio. Even if the ministry would provide for the audio recording, it would at least give some opportunity for people to know what was said at the hearing and to have that available. Would the ministry have any estimates for what it would cost just for the audio portion?
Ms Harrington: No, I do not have a number for just audio.
Ms Poole: I wonder if legislative counsel might have any information at all about written transcripts, which are quite commonly used in court proceedings. The only reason I know they are quite expensive is because I was a law clerk for five years. I know it was fairly unusual when we had to hire a private person to transcribe, and it was extremely expensive. But my understanding is that recording is a fairly cost-effective way. Maybe Hansard would be able to tell us, since that is their job.
Ms Harrington: Their stock-in-trade.
The Chair: Probably not.
Ms Harrington: I think at this point it is interesting looking at cost --
The Chair: I am told that our reporter may be of some assistance.
Mrs Marland: While waiting, could I ask a question on some other matter? It is a matter of process on something that was handed out this morning.
The Chair: I think we will wait for a moment for that.
Ms Poole: I do have some additional information to share with the committee. It is estimated that if you had a written transcript, it would be $200 a day simply to have the reporter show up. Then it is approximately another $500 per day for the actual written transcript. So it appears that is an extremely expensive proposition.
On the other hand, if it was for the audio recording, it would be approximately $5,000 for the setup in the hearing room. The additional costs involved would be for the tapes. These could either be passed back to the parties involved or absorbed by the ministry. But it would seem to me that to have the audio recording would be an extremely cost-effective way. If the ministry is willing and prepared to accept this, I would certainly be willing to amend my amendment with a friendly amendment or withdraw it or whatever, to provide an opportunity for typewritten transcripts to be eliminated from the motion and audio recording to be the only viable option.
Ms Harrington: One further piece of information I wanted to give you is that the people can request that it be taped. So that option is there. The ministry has made the decision that we do not want to be obligated to this service, but it can be done for those who want it. That is my understanding. Let me just check to see if I have anything further.
Ms Poole: I just wondered if perhaps we could get a confirmation. I did not notice that in the act itself, although it may be there. It has been some time since I have read the entire thing through. I certainly have not got it quite memorized to date, although some sections I think I do. But I wonder if it is directly in the act that an applicant or party can request the tape recording, or if it actually is contained in government policy as opposed to legislative form.
Mr Mammoliti: May I ask a question?
The Chair: You were next on the list, Mr Mammoliti, but if that can help, sure.
Mr Mammoliti: It is my understanding that officers in the chair usually do tape hearings. It is practice apparently. I know that at every hearing I have gone to, I have seen them tape it. I would like to ask whether or not it is already practised, and if it is, I would assume it would continue.
Ms Parrish: The Statutory Powers Procedure Act does not require that you have a recording, but I think the practice does vary from tribunal to tribunal. Often there are cases where the parties will request that there be a court reporter of some kind, and where they do, that is often permitted. It is sometimes required that the parties bear that cost, because it is very expensive. Often the parties know in advance that they anticipate this going to the courts and so on, and they want to have a full transcript.
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But I do not believe, although I will confirm that, that the hearings board currently does this in every case. I think they do it in some cases. I guess the issue is that this is expensive. There is a large volume of hearings, many of which are dealing with relatively straightforward issues. It does become a cost issue where you automatically do this and nobody even wants it. You have paid a substantial sum of money, and in the end nobody wants the transcript. So the concern is to have a reasonably cost-effective system. You can order it -- the Statutory Powers Procedure Act allows you to do this -- but I know it is quite common in other tribunals that I am familiar with to require the parties to bear the cost themselves.
The point we have is twofold: whether this is cost-effective when you are recording a hearing when nobody has asked for it as opposed to where there has been a request for transcript, and second, it is quite expensive and there have been a lot of comments made about how much money it will cost to administer the statute. So the concern is partly that it could be wasteful, because nobody wants this transcript; nobody has asked for it. Second, it does cost money.
Ms Harrington: Thank you, Ms Parrish. You have made the ministry's position quite clear. We do not want to get into a blanket situation of doing it in all cases.
Ms Poole: I certainly understand the comments about the cost with regard to written transcripts, but if it is available to people through the Statutory Powers Procedure Act, then it would seem to me that the ministry would have to have this type of equipment in the hearing room anyway. They would have to provide it. Then the question would be whether there is a cost pass-through back to the parties involved.
I would think the cost pass-through back would be quite minimal if you are looking at the audio recording, because you are just really talking about the cost of the tapes. I have been at appeal board proceedings, called the hearings board under the RRRA, where they have not been taped and it has made it somewhat difficult when the hearing goes on for a number of days and somebody is referring to what was said and then you go back to people's recollection of whether this was what was said. So I certainly think from a technical viewpoint it would be desirable to have it.
Another option would be that the audio recording be available. However, if any party wants a written transcript, that cost would be fully passed through and in fact paid in advance by the party before the ministry ordered the written transcript, which could be done from the audio recording. Having the audio recording automatically provided certainly would allow for that, and yet at the same time the cost to the ministry would be quite minimal.
If the ministry is willing to consider this, I am certainly amenable to changing this amendment to conform with the way in which you want it dealt with.
Mr Mammoliti: With any legislation, individuals are bound to follow the steps of that legislation. Both the landlords and the tenants are forced into a procedure which we are talking about now. I do not think it is unreasonable, to be honest with you, in terms of audio. In terms of transcripts, I would agree that perhaps if somebody wants a copy they should pay for it. I would be willing to bet, if the ministry looks into it, that we have been spending money on audio anyway in most of the hearings and that it will not be that much more in terms of a monetary cost to the ministry. I do not know. On a personal note, I would not mind looking into it in terms of the audio.
Mr Winninger: This is more by way of a clarification of the amendment. If the party were requesting a transcript, is it Ms Poole's position that the party would be paying the per-page cost of the transcript being prepared?
Ms Poole: Yes, Mr Winninger. That is my new, improved position.
Mr Winninger: Was that in writing, or is that something you have said today?
Ms Poole: No, that is just something I have said recently when we were discussing the exorbitant cost of these transcripts. I made an offer to the ministry that if it was willing to accept that audio recordings would be provided and written transcripts would be paid for by the particular party in advance and subsequently provided for the ministry -- this, of course, would be only on request -- then I would certainly be willing to amend the wording of my particular motion to conform with what the ministry feels is appropriate.
Mr Winninger: What I suppose you are suggesting by your amendment is that even though right now some rent officers may record proceedings and some may not, for the sake of consistency you are arguing that it should become the practice in all hearings to record evidence given.
Ms Poole: That is right. Right now we have an administrative review process, so they do not record, as far as I am aware, under any circumstances. What I was referring to was the hearings board which dealt with appeals. I know sometimes they did audio recordings, because I was there when it happened. I have also been present at appeals where the members of the appeals board were unfamiliar with the particular equipment and could not get it to work and threw up their hands and said, "Let's go ahead." Those were the times when it was quite difficult later in the hearing process when we did not have any type of audio transcript to go back to.
Ms Harrington: Just one brief comment before we make a decision on this. In remote locations we do not have the equipment, so there are difficulties in having a blanket policy on this.
The Chair: Thank you. Further questions and comments on Mrs Poole's amendment? Shall section 86.1 carry? All in favour? Opposed?
Motion negatived.
Mrs Marland: On 15 January Ms Poole and I requested that the ministry supply a list of people who presented briefs at the consultation meetings held by the ministry on the rent control issues and options paper. This morning we have been given a list. Is this a complete list? It says it is a list of presenters at public meetings chaired by the Honourable Dave Cooke, which may be the case, but I am certainly aware of a meeting chaired by the still honourable -- but not by title -- Don Abel in Mississauga, and that list is not here, nor does the list indicate what we were looking for, obviously, which was who these people represented, whether they were property owners or tenants. When we raised the question, Mr Chairman, we did not ask for a list of meetings of the people.
The Chair: Perhaps to be helpful I could have the clerk read exactly what the request was of the committee.
Clerk of the Committee: "It was agreed the ministry would provide the report resulting from the ministry consultation process preceding the introduction of Bill 121 and to provide a list of the participants in that process and each person's position on the issue."
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Mrs Marland: Obviously this is not in response to that. It does not fulfil the request that was made, so I am still asking that the ministry comply with the request of Ms Poole and myself. I am wondering if we will have that list now before we complete at least these clause-by-clause hearings. When can we expect the list we asked for?
Ms Harrington: Is it my understanding that you want the position of each of these people? Is that what was omitted?
Mrs Marland: No.
Ms Harrington: No?
Mrs Marland: That is one of the things that was omitted.
The Chair: Mrs Marland is referring to a motion that was made by this committee.
Clerk of the Committee: It was actually an agreement.
The Chair: It was actually an agreement of what the request was.
Mrs Marland: The point came up, madam parliamentary assistant, because the point was being made at the time that there was a lot of input by the public into the legislation. We were interested to know what the public said and from what point of view they were commenting and who they were. We have been given a list of about five cities -- I have not counted them -- with just names. It does not tell us whether they --
Ms Harrington: I think I can clarify.
Mrs Marland: Excuse me. Let me just say that I do not know how many cities the ministry held these meetings in, but Mississauga is not even on this list, and that was the one I am aware of that I attended. So we need to have a complete list -- this is not complete -- and we need to meet the request that we made which was the point of view that these people were coming from.
Ms Harrington: I would like to do the best I can. The next day following your request, or that afternoon possibly, you were given the discussion paper that resulted from --
Mrs Marland: Oh sure, but I already had that.
Ms Harrington: Yes. So that gave you the idea of the types of discussions and what these people were saying. At that point I remember mentioning that maybe the names of the presenters were at the back of the paper, which they were not, and therefore I believe you now have the names of the people who presented. But I understand there were three types of meetings held: the ones with Dave Cooke, the ones with myself and the ones with Don Abel. This list reflects just the ones that were held with Dave Cooke.
Mrs Marland: So we only have a third of it.
Ms Harrington: It is incomplete.
Mrs Marland: Yes, it is incomplete.
Ms Harrington: But in terms of what they said, the discussions, that was in the paper.
Mrs Marland: I already had the summary of what they said, but it was not identifiable. The point is, I am quite sure the clerks at all those public meetings -- for example, the first name in Ottawa is Eric Chipley. I am sure the records the recording secretaries had at those meetings would show whether Eric Chipley was representing himself, tenants or property owners. I do not expect to get a list that says "Eric Chipley said ..." but I would like to see "Eric Chipley, property owner" or "Eric Chipley, tenant." Obviously, when they start to speak they identify their interest in the green paper for discussion purposes. I do not think it is a very complicated list that we asked for.
The overall summary is just an extract of somebody's compilation of those three sets of hearings, so we need the names from the three sets of hearings and we need the groups they represented.
Interjections.
Ms Harrington: I have been told that in some cases people came to these meetings who were not identifiable as you would think: "I am a manager," or "I am a superintendent" or various types of people. Some of them did not specifically identify themselves around the issue. Certainly they would all have had a particular interest --
Mrs Marland: There may be a few, but you cannot do a compilation such as the one you have unless you knew who was saying what from what base. Everybody did not come cloaked in anonymity, I can assure you.
Ms Harrington: No.
Mrs Marland: So can we have the complete list and can we have their association?
Ms Harrington: I will ask staff to reply.
Ms Parrish: In some cases you are right, Mrs Marland. People stood up and said, "I am so-and-so and I am representing the southwestern blah blah blah." In other cases they just spoke from the floor. They got up. You might be able to guess from what they said what position they were representing, but they did not say who they were. They just said, "I've lived in my community for 30 years and I have strong views on this," or whatever. They did not say, "I'm a landlord," "I'm a tenant," or, "I represent a ratepayers' group." Sometimes they did, sometimes they did not. We did not make it a condition of their participating in the public meetings that they identify themselves other than by their names.
Mrs Marland: You knew ahead of time who was taking part.
Ms Parrish: There were two parts to the public meetings. One was a scheduled part in which people asked in advance to be scheduled to speak.
Mrs Marland: Right, so you knew who they were.
Ms Parrish: In some cases we only knew their names. That is all they told us. In other cases they did tell us who they were. Then there was a public part where people just got up from the audience and said things. They often did not even really identify their full name or anything about themselves.
I am reluctant to say I can give you the information when I do not think I can. What we can do is use our very best efforts to go through our material again, and where people have identified themselves to us, we will indicate that. Where they have not we will simply have to say, "Not identified," or "Did not identify themselves as representing any particular interest," "Speaking on their own behalf," or whatever. That is the best I can do. If I promise you anything else, I would promise you something I cannot give you.
Mrs Marland: That is fair enough. As long as we get the complete list of everyone who took part, which you have --
Ms Parrish: In the public meetings.
Mrs Marland: In the public meetings. Were there any other meetings?
Ms Parrish: As I said, there were these informal meetings in which individuals participated and they were not public meetings. Those individuals in many cases did not want their names disclosed. They wanted to have an informal discussion and we are not disclosing their names without their permission.
Mrs Marland: Were those informal discussions with the minister or the staff?
Ms Parrish: They were informal discussions with Ms Harrington, Mr Abel and with ministry staff.
Mrs Marland: Okay. I think the original request was dealing in any case with the public meetings that were advertised, where people were invited to come, where you had scheduled people and unscheduled people. Certainly, from other meetings I know people attended that I did not attend, there were recording secretaries taking extensive notes. If people said, "Look, I've been a tenant for a long time and I do have this, this and this problem," the record is there. I am simply saying, can we, as committee members, have as much information as you have as a result of the process held at the expense of the taxpayers of this province? I think that is information we are entitled to have, simply put.
Ms Harrington: I agree. As you mentioned, notes were taken at these meetings. I remember the note-takers who came with us, very interesting people. Their job was to try and condense what was said. It was not a tape or a transcript, it was a condensation of what was said. I remember at the very first meeting in Thunder Bay the people said, "Read us back what you've written down so that we can be assured of." It was very interesting to hear what people had said being condensed. People were very pleased with the results.
What I wanted to tell you was that those notes, that condensation, is in that buff-coloured report. The whole reason for those note-takers going with us was so that that they could put it in a report that would be public, that we could use and all members in the House could look at. I thought that was what was being done and that was the intent --
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Mrs Marland: No, I think I have made it clear now. I will not repeat it, but I think I have made it clear what we need to have and what I believe we are entitled to have, because it has been referred to a number of times as a process that led to this legislation before us today. I look forward to receiving that.
Ms Harrington: Is that possible?
Ms Parrish: As I said, we will give our very best efforts to go through. I guess what you want is, "Miss Smith, representing tenants" or "Mr Jones, representing the London area real estate association," whatever.
Mrs Marland: Or "Miss Smith, a tenant," or "Mr Jones, a landlord."
Ms Parrish: Where we have that information we have no problem giving it to you. I am just going to have to indicate that there were times when honestly we were not sure who the person represented. They did not identify themselves as having a particular affiliation.
Mrs Marland: But they may have identified themselves as being "a tenant" or "a property owner," but not a formal affiliation by a title name or an association.
Ms Parrish: They may have, and if they did we will give you that information. But, as I said, having been at meetings, it was quite common for people to simply say, "I've lived in this community for so many years," and you cannot tell whether they are a ratepayer or a landlord, tenant or rental advocate.
Mrs Marland: Fair enough. I understand. Thank you.
Section 87:
The Chair: Questions, comments on section 87. There is an amendment, I see. I think we will do it subsection by subsection. Subsection 87(1), questions, comments?
Ms Poole: Several times in the proceedings we have talked about having written findings and written reasons, and I think the statement was made that this was a procedural matter and we certainly wanted to deal with that in the procedural section. Is this an appropriate section to deal with this particular matter? The Liberal Party has an amendment to 87(3), but I look at 87(1) and I wonder whether "findings" in that particular case should have the word "written" in front of it.
Ms Parrish: I do not think you would say you make "written findings." If you wanted to do what you want to do, you would probably say "the reasons should include findings," or that "the written reasons should include the findings." Otherwise you have a situation where, first of all, you write the findings and then you say, "Here are my findings," and then later on you write the order, and there is no connection between the findings and the order. I think that is the connection you want to make, just purely from a technician's viewpoint.
My view is that the fix you want is appropriately dealt with in 87(3), but others may feel differently. I suppose you could fix 87(1) as well.
Ms Poole: Legislative counsel has just suggested a way to deal with this in the Liberal amendment to 87(3), so perhaps we should just proceed and deal with it at that section.
Mr Winninger: I do not think it is necessary to comment other than to say that it would be inappropriate to require the rent officer to make written findings, because findings are things that are cognitive, or perceptive, or conclusive, but not necessarily reduced to paper. That is the next step, I would think.
The Chair: Shall subsection 87(1) carry? Carried.
Subsection 87(2), questions, comments or amendments? Shall subsection 87(2) carry? Carried.
Subsection 87(3), Ms Poole.
Ms Poole moves that subsection 87(3) of the bill be struck out and the following substituted:
"Copy to parties
"(3) The rent officer shall forthwith give a copy of an order to the parties and their agents and shall give written reasons, including the findings and an explanation of any calculations affecting the maximum rents ordered."
An explanation?
Ms Poole: I would just point out that on the suggestion of legislative counsel I have amended what you have before you in your books by adding the words "the findings and" after the word "including." That is how we propose to deal with this particular matter.
One change this amendment has to subsection (3) is that subsection (3) says, "The rent officer shall...give a copy of an order to the parties." Quite often the parties' agents are actually dealing with the matter, whether it be a tenant's solicitor or a landlord's consultant or solicitor, or whoever.
As the wife of a lawyer, I know that sometimes communications between clients and lawyers are not what they could be and a notice of decision is sent to the client who fails to pass it on to the lawyer or consultant actually acting on his or her behalf. Sometimes this causes great difficulties when that professional is trying to do his or her job. I think this would assist both tenants and landlords in ensuring that all the parties, particularly the ones who have made the representations on behalf of the parties, are aware of the decisions.
We have added a second part which says, "including the findings and an explanation of any calculations affecting the maximum rents ordered," because under previous rent review orders it was extremely confusing to try to figure out exactly what this meant and why this was happening.
I think if we give an actual direction to the rent officers that we want them to explain to tenants and landlords how they arrived at their calculations if there was a change from what was requested and the written reasons for their orders, it would be extremely helpful to all parties concerned to know what this process is all about and how the conclusion was arrived at. This is particularly important as a valuable part of education of parties as to how the process works and is really necessary for them to be able to interpret these orders.
Ms Harrington: The ministry and the minister have looked at this and we are in agreement with the Liberal Party that there should be written reasons given. We would like to thank you for this amendment. We agree with the agents' parts as well.
My caution is with regard to "any calculations" in the last line. We would prefer your amendment to be the first two lines to read, "The rent officer shall forthwith give a copy of an order to the parties and their agents and shall give written reasons." If we get into every calculation, or "any calculation," we do not want 40-page reports. We want two- and three-page reasons.
Ms Poole: I am always a pragmatist and I have always believed that half a loaf was better than no loaf at all; otherwise, you tend to starve. So I would be prepared to withdraw my amendment and move a new amendment to subsection 87(3).
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The Chair: Ms Poole moves that subsection 87(3) of the bill be struck out and the following substituted:
"(3) The rent officer shall forthwith give a copy of an order to the parties and their agents and shall give written reasons."
Ms Harrington: Thank you, Ms Poole.
The Chair: Questions or comments on Ms Poole's amendment to subsection 87(3)?
Mrs Marland: I think you have me down, Mr Chairman. Correct?
The Chair: Yes. We are on a new amendment, though, Mrs Marland.
Mrs Marland: I just want to say that we are supportive of the intent of Ms Poole's amendment. Our very grave concern is coming up with subsection 87(4).
The Chair: Further questions or comments? Shall Ms Poole's amendment to subsection 87(3) carry?
Motion agreed to.
The Chair: Subsection 87(4): Again we have a Liberal amendment to subsection 87(4) as printed. Mrs Poole?
Ms Poole: The Liberals do have an amendment to subsection 87(4). Rather than reading it into the record at this time, I wondered if we should not stand it down until we deal with the Liberal amendment to section 89 concerning the appeals board. It is subsection 89.1(1). The Liberals have an amendment regarding the appeals board, which was why we wanted to amend subsection 87(4) to conform. I suggest we do not want to deal with this until such time as we have debated the substantive amendment.
The Chair: Ms Poole has asked for unanimous consent to stand down, I presume, subsection 87(4), as she has not made her amendment. You have not put your amendment, so you cannot stand that one down; we can stand the section down.
Ms Harrington: Mr Chair, the ministry would like to proceed, because we do not have any intention of changing the section substantially.
The Chair: In that case, Mrs Poole, would you like to place your amendment. We do not have unanimous consent.
Ms Poole moves that subsection 87(4) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "section 89 or 90" in the third line and substituting "this part."
An explanation?
Ms Poole: If members look at subsection 87(4), what it says is, "An order made by a rent officer is final, binding and not subject to review except under section 89 or 90." The Liberal caucus has proposed an amendment which would reinstate an appeals board similar to the hearings board under the RRRA. In the event our amendment passed, this section would not be consistent, because this would make the rent officer's order final and binding, notwithstanding that we had reinstated the appeals board.
Mr Jackson: We will certainly be supporting it, and as I indicated earlier, as someone who was able to get a 12% rollback for my tenants in one of my buildings -- and that was the only one I really did; think if I had really taken on a few more landlords. I really feel that one of the biggest frustrations that we will see two years down the road is when tenants finally have to realize that is it, it is over, there are no more opportunities. I suspect that there is the Federation of North York Tenants Associations, which has objected to this dictatorial power -- I am sure that memo has not gone unnoticed by the government, or at least we will know that after we vote on this amendment.
Ms Poole: I would just like to point out that in my opinion -- and again, I am not a lawyer, so legislative counsel might want to correct me, but my understanding is that 89.1 through 89.14 can be argued and passed without subsection 87(4) being passed, so what would result is perhaps an inconsistency in the legislation. But what I am saying is that I intend to reserve my arguments about the appeals board until we get to 89.1.
If legislative counsel is telling me that we will not have an opportunity to move 89.1 if this section fails, then we obviously would like to make arguments for the appeals board in this particular section.
Ms Baldwin: Perhaps I can respond. I am not saying you cannot move your other motions, but there will be a clear inconsistency in the act. If they do not correspond to one another, that would be a problem. So if you moved your motion and it passed, the committee would have to, in order to remove the inconsistency, come back and correct this provision. It is a clear inconsistency if your motion here does not pass and the other one does.
Ms Poole: I thank the legislative counsel. I just wanted that reassurance that I could still move 89.1 even though 87(4) might fail and that it would not be out of order.
The Chair: Not having read 89.1, it is difficult for me to make a presumption about whether the question would be decided here. But as you have pointed out, you are not making the substantive arguments you are going to make, and I think I would be predisposed to allow the argument to the amendment to 89.1.
Mr Jackson: It would be housekeeping, technically, if you go back and clean up.
Ms Baldwin: I would like to make one more comment. I want to make it clear that what I said was talking about what would result in the act. I was not making any comments procedurally upon what would or would not be permitted to be moved or to proceed.
The Chair: Just to give Ms Poole some reassurance, I can tell you that I will accept your amendment for debate, section 89.1, because I know that if I move the other way you are going to make those arguments now, which is perfectly appropriate under those circumstances. So I could give you an indication on my ruling now.
Ms Poole: I thank you for your usual forbearance. It is obvious you know me well.
Ms Harrington: So we will look forward to substantial debate and concerns and issues put forward on section 89.1, and proceed with this.
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The Chair: Shall Mrs Poole's amendment to subsection 87(4) carry?
Motion negatived.
The Chair: Shall 87(4) carry? Carried.
Section 87, as amended, agreed to.
Section 88:
Ms Poole: I was just wondering if in this section it would not be more appropriate to say "shall amend it," rather than "may amend it." We do not have a formal motion in this regard. I am just looking at it, and if there is a clerical error or omission, I think we do want the rent officer to amend it.
Ms Parrish: The only problem with this is that I think it would only work if you said, "If an order contains a clerical error or omission, or if the rent officer is of the opinion that it has this, then he shall amend it," because there might be a clerical error or omission that the rent officer does not know about and then you have said that he shall amend it, but he does not know about it, so he did not amend it.
The only way you could fix this to make it like the other sections would be to say, "If the rent officer comes to the opinion that," or "finds this clerical error or omission, then he shall do it." But I think just to change "shall" means that they have to change things they do not even know existed. I guess the whole problem with clerical error or omission is that it has resulted from clerical error or omission to begin with.
Ms Poole: Would it be acceptable to just have a friendly amendment here that would say, "If a rent officer becomes aware that an order contains a clerical error or omission, the rent officer shall amend it," or does that create more difficulties?
Ms Parrish: I guess I am reluctant to spend the time of the committee drafting this right now. I guess we have one other concern. My staff is saying, "Well, what if it is truly inconsequential." For example, the clerical error in the order is that Colleen Parrish is spelled with one "l" instead of two "ls". That is certainly a clerical error, but do you want people to go around reissuing orders for that?
The other thing is that if you just change that, I think you still have a problem with the part about when they do it, the timing issue: "may amend it at any time before the beginning." You would have to say, "If the rent officer finds this clerical error and it is before the appeal is launched, then he should do this." But I think there is still a good point raised by my staff that, again, some clerical errors are very minor, and nobody is being misled or disadvantaged or anything by them, so why should you go through the process of redoing it? I guess we are saying this may be a legitimate ground for retaining some discretion to decide when you should let people know that you goofed up, as opposed to continually sending out orders to people in which they have to try to figure out what the change was anyway.
Mr Jackson: If I may jump in, is this not simply an escape valve so that if a matter may go to court, it allows you the right to correct the document, not to change it? Well, it is changed, but to correct the document. Is it not the real purpose there in recognition that there may be clerical errors and before you go to a hearing which is being conducted on a point of law -- which we will discuss at length later. I understand that process because I have been in it. Is this not more for the civil service's benefit, not for the tenant or the landlord? A clerical error that is not substantive will go unnoticed in perpetuity, but if it is a cause for an action, then that action cannot be stopped. You do not have the right to go in and fix it and then all parties back off and there is no cause for an action.
In my view, that is what the purpose is. Unless someone wants to tell me otherwise, I do not see this as being any major, mysterious thing to the benefit of the landlord or the tenant. It is basically so we do not end up in court because some secretary who has been on the job three weeks made a numeric typographic error that may be interpreted as being substantive. Therefore, that would be the point of law.
Ms Poole: I think the explanations of Ms Parrish and Mr Jackson are certainly adequate. The ministry does have an amendment later on in subsection 89(1), dealing with serious errors which I think really gets to the substance of it. I will just leave the comments at that.
Section 88 agreed to.
Section 89:
Ms Harrington: The government has a motion of amendment to section 89.
The Chair: Are you speaking as printed or is there a new one?
Ms Harrington: A new one, yes.
The Chair: Ms Harrington moves that section 89 of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Power to reconsider
"89(1) If, within one year of the date of an order, the chief rent officer designated by the director believes that a serious error has been made in it, the chief rent officer or his or her delegate shall reconsider the matter and may affirm, rescind, amend or replace the order.
"Idem
"(2) If a party to an application is found guilty of the offence of furnishing false or misleading information under this Act or is found guilty of fraud, perjury, forgery, uttering a forged document or false pretences under the Criminal Code (Canada) respecting the application after an order has been made on the application, the chief rent officer designated by the director, or his or her delegate, shall reconsider the matter and may affirm, amend, rescind or replace the order and subsequent orders or notices of carry-forward affected by it."
We also have two Liberal motions. Mrs Poole, do they refer to the new government amendment or the previously printed one?
Ms Poole: The Liberal motions refer to the original act, where the section said that the chief rent officer "may reconsider" as opposed to "shall reconsider." That has now been remedied by the government amendment, which is virtually identical to the Liberal motion, so I will withdraw subsection 89(1).
The Chair: Well, you have not placed it.
Ms Poole: Oh, I see. I will not be moving the Liberal amendment to 89(1). I am just looking at 89(2).
Ms Harrington: We have replaced "may" with "shall."
Ms Poole: Liberal amendments 89(1) and 89(2) are both taken into consideration in the government amendment, so I will not be moving the Liberal amendment to 89(2) either.
The Chair: We are discussing, so all members are clear, Ms Harrington's amendment to section 89.
Mr Jackson: So the change in the amendment to section 89 from the one I have in front of me is that she has changed "may" to "shall" in both 89(1) and 89(2).
Ms Harrington: Yes.
Mr Jackson: That is it?
Ms Harrington: There is also the amendment to subsection 89(2) that adds the words "perjury, forgery, uttering a forged document or false pretences" to parallel the wording of the Criminal Code of Canada.
Ms Poole: The government motion I have does not refer to perjury in subsection 89(2). Oh, I understand that we have two versions of the government amendment and I was looking at the new one, not the newest one.
Interjection: The new and improved one.
Ms Poole: That is right, the new and improved one. Sorry, Mr Chair. I was not looking at the 14 January version; I was looking at the new one but not as previously reprinted.
The Chair: Further questions or comments to Ms Harrington's amendment to section 89?
Ms Poole: It will probably come as no surprise to committee members that since it very closely parallels the Liberal amendment we will be happy to support this.
Motion agreed to.
The Chair: Before we adjourn, I point out to members that we do have officials from the Ministry of Housing coming at 2 o'clock. To expedite things, attendance at 2 o'clock would be appreciated.
The committee recessed at 1203.
AFTERNOON SITTING
The committee resumed at 1412.
The Chair: The standing committee on general government will continue its consideration of Bill 121 clause by clause. I think the most expeditious way to deal with the bill at this point would be to ask for unanimous consent to stand down the sections until we get to section 116, which relates directly to rent officers. Could I have unanimous consent that we do that?
Agreed to.
Section 116:
Mrs Marland: Mr Chairman, as the person who first raised it, the issue is who rent officers might be after this legislation is proclaimed, what their qualifications to apply for the job might be, what their job description actually would be, and then after they are hired, what their training would be. I know you are going to want to bring forward staff, so I will wait until you do that to answer those questions.
The Chair: I think that would be the best way to proceed, Mrs Marland. At this point we have two people here from the ministry, Robert Glass, who is the executive director of the rent review program, and Ms Dorothy Le Fur, senior human resources adviser, to help us with these important questions. Would you come forward, please. Mr Glass, do you have a presentation for us first or do you just wish to answer the questions from the committee members as they arise?
Mr Glass: We have brought some material today for the committee's review, and if I might take you through it, I think that might be useful in addressing some of the questions and some of the specifics. I was asked to discuss the duties and skills of a rent officer, how they will be recruited and trained, and some questions around procedures and how they work within the organization. I have provided some materials today. These are obviously draft materials. They include a description of the rent officer position that of course cannot be finalized until the legislation is finalized, and there are other materials on organizational structure. I think it is important to see where the rent officers sit in the organization, and specifically how they relate to headquarters and the other field structures at other local offices.
If I might take you through those materials, I would like to start with the organization material. I would like to start with the organizational chart called "Rent Control Branch." It should be the second group of materials in your package.
Within the proposed rent control organization, we will have a number of regional offices, as we do now, a section on program policy, education and development, and of course the rent registry reporting to headquarters organization.
I would like to focus on the program policy, education and development organization first. It is a separate page in your package. It is probably the last page. This particular unit is very important to us because it provides overall procedural guidance to the organization, overall quality assurance for our orders and our materials, overall public education and client services materials, and is responsible for staff training and development programs that are put in place. There are also sections that will provide management information systems and management data for us, and in particular a new section that would be added to this that would be responsible for policy, public education, training coordination and hiring of maintenance inspectors.
We have four regional offices. They essentially supervise and coordinate and provide administrative support for the local offices. There are 20 local offices. There is a chart that lays out their responsibilities, but I think I would like to focus on the local office, and there is a chart in there that expands on the responsibilities of the local office.
I said we have 20 local offices in the system now. We do not see any changes in that number at this time. Looking at the chart for local offices and moving left to right, there is a client services section. We receive about 650,000 calls each year in rent review, primarily on landlord and tenant matters. That is a current function we perform that will continue under the act.
The next section is what we would call our production team area. This is where the rent officers would be. They are supported on their teams by application analysts who do the workup of files, and by applications clerks who do the scheduling and administration around the applications themselves.
The manager of the local office is also the chief rent officer, and as you have gone through the act, this is the individual who would receive applications and assign them to various rent officers in the organization.
Also in that local office is another important position for us, which is the box at the far right called "inspection." Our rent officers will be able to draw on these specialists -- and these would be full- or part-time staff, depending on the size and workload of the office -- for advice on maintenance and issues related to capital. Not shown on this chart, because they work for the Attorney General, are legal specialists. Rent officers have access to these people.
In terms of the organizational structure itself, rather than seeing the rent officers as an omniscient group, I would see the rent officers as skilled individuals who are well supported throughout the organization in terms of specialist advice, staff training and development and clerical procedures that support the whole operation of a hearing.
Are there questions on the organizational chart itself? If not, I will talk about the rent officer position itself.
Ms Poole: It appears that your setup is very similar to the Rent Review Hearings Board under the Residential Rent Regulations Act. I am looking at the fact that they had analysts and you have application analysts who will prepare the file, which then goes to the rent officer conducting the hearing.
Mr Glass: That is correct.
Ms Poole: Was this deliberate, that you have tried to mirror it?
Mr Glass: It may show a lack of imagination on our part, but the Residential Tenancy Commission, rent review services itself and the hearings board have all worked in this way. They all have production teams. We call them rent review administrators and rent review assistants; they call them financial analysts and hearings officers. This is a kind of generic term, I guess, for that group, but it seems to work and that is what we would like to stay with.
The Chair: Do any other members have questions at this point?
Mrs Marland: I am wondering if Mr Glass has any global figures yet as to how many of these people in these categories at the local office we are going to have to hire to implement Bill 121.
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Mr Glass: The total number of staff in the proposed organization in front of us is within about 5% to 10% of the current numbers of staff in the combined organizations, depending on some of the decisions this committee makes around hearings, how many hearings, administrative reviews and decisions of that matter.
Most of the staff in here exist now. Many of these duties are very similar to the duties that are currently performed. For example, the secretarial-clerical positions and analyst positions are very similar to the duties that are performed now. The client services functions are almost identical to the positions that exist now. The areas of specialization, the areas that are totally new, are things like work order rent prohibition. This is a specialized group we said we would set up to handle this particular function. Inspections exist now, although some of them work for the Residential Standards Rental Board. Managers exist now in the local offices. Again, their duties change. The rent officer position I can discuss. There are some aspects that are very similar to current functions and there are some that are quite different.
Mrs Marland: You said within 5% or 10% of the current complement.
Mr Glass: That is about 560 staff right now.
Ms Poole: Did you say 5% to 10% above the current numbers or below?
Mr Glass: It would swing on either side depending on some of the decisions. We have made some estimates of the application numbers we will get. The numbers range anywhere from about 530 positions to about 590 positions, depending on how many applications we get.
Ms Poole: So it would be more or less in the same ballpark as what exists now from the combined boards.
Mr Glass: More or less. We are hoping we will get some streamlining of procedures and some reductions in total staffing.
Ms Poole: In other words, the standards board has been abolished and the appeals board has been abolished, yet we have the same complement of people, more or less, working in the system. Does that not seem to suggest that perhaps there is an increased level of bureaucracy?
Mr Glass: I do not think so. I think what is different in this act is that we are introducing the notion of hearings, a larger number of hearings, which take longer to conduct, so it is a function of that particular feature.
Mr Jackson: Is it not also true, though, that the ministerial directive is that in phasing out any employees, you are to find alternative spaces within the ministry if they are reasonably qualified?
Mr Glass: That is right.
Mr Jackson: You are not under any directive as it relates to staff positions that would reduce those numbers, other than attrition. I do not wish to suggest to you that you are putting them there because you have no other place to put them, but what you have confirmed for me is what I already know. The ministry will cut budgets but not people at this time.
Mr Glass: It is true that the directives are to ensure that staff are retrained.
Mr Jackson: I have seen them.
Mr Glass: From our point of view, clerical staff are very easily retrained to do other clerical functions. A number of the financial and administrative positions here do things that are identical to other branches, because the financial and human resources systems are mirror images of one another from ministry to ministry. I should also discriminate between positions and staff.
Mr Jackson: Do you not mean "discern?"
Mr Glass: One would reflect an absolute limit to the number of staff we could hire. The other would reflect the actual number of staff in place. At any given time, there are probably 10 or 20 vacancies within this organization. There is no particular squeeze on staff, or there is no particular concern about layoffs or anything under this program. I think the organization could easily accommodate any changes we made.
Ms Poole: There have been some discussions in this committee that tenants and landlords should have the right to an automatic hearing and that then, if they reach mutual agreement, they could default to an administrative review. While the minister has not at this point in time accepted that, the ministry has indicated it is taking a second look at that particular section. What ramifications would it have for staffing if the legislation were to be amended to say that hearings would automatically be granted unless parties otherwise agreed to an administrative review? What sort of increase would you expect?
Mr Glass: In doing our workup of the numbers, we investigated the Residential Tenancy Commission, the hearings board and our own offices for comparative purposes. A production team such as we just talked about in rent review services, which does administrative reviews, does about 15 applications per team per month. The hearings board does six to eight, principally a function of the fact that it involves sitting down with people on one or more occasions and getting witnesses together. The Residential Tenancy Commission did between eight and 10 applications per month. I guess the bottom line is that the more hearings we hold, the larger the staffing would have to be for a given number of applications and the more expensive it would be.
There are two other problems that affect the cost of doing hearings versus administrative reviews. One is travel time and things associated with it, particularly if you are travelling to remote areas for the purpose of holding a hearing as opposed to simply looking at a file in your office. The second feature is the salary dollars associated with hearings officers versus administrative specialists; the hearings officers are paid considerably more money.
Ms Poole: When you estimated your targets for this particular model you got a range. What figures can you give us that you estimated for the proportion of cases that would go to hearings as opposed to administrative review?
Mr Glass: I believe I actually distributed that information. I am going to have to go by memory, but perhaps I could cut to the number of rent officers who would do hearings versus ones who would do administrative reviews. Would that be helpful?
Ms Poole: Yes. I know you did distribute a document quite a long time ago about this, so it may well be in there. Certainly at this stage if that is what you have, you could give us those figures.
Mr Glass: Perhaps I could come back to that. I have the information with me in my briefcase but I would have to dig it out.
Ms Poole: Sure.
Mr Glass: It depends on the kind of application. For example, we would not see a large number, a huge percentage, of hearings on tenant rebate applications, which are essentially one-to-one kinds of applications between the landlord and the tenant, but we would expect that the capital applications would almost invariably go to hearings. I think we estimate that 90% of those applications will go to hearings. There are other hearings concerning status applications under the act where we expect them to all go to hearings, and some of the predeterminations would all be hearings. Extraordinary operating costs we think would fall somewhere in between.
Ms Poole: It sounds like a fairly significant proportion of the cases are estimated by your office to be going to hearings as opposed to administrative review.
Mr Glass: If history repeats itself, initially a high percentage will go to hearings. Then, as people go through the hearings process and know what counts in terms of presenting evidence, more and more will rely on, and be satisfied with, administrative review. It will be the complex cases where there is a lot of information and a lot of fuzziness around the evidence, where the issue is not very clear, that will come to hearings. It will not be something like a water bill or a hydro bill or something that is in dispute.
Ms Poole: I have some questions about cost, but it is probably more appropriate for you to go on with your presentation, as you may have that factored in.
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Mr Glass: I had left off at the rent officer position. I believe you have a copy of a position specification. It is not exactly a position specification, it is a job description.
What we have in front of us is a generic rent officer position. This position encompasses the duties for doing both administrative reviews and hearings. In point of fact, in the new organization we are likely to have specialist positions that only do administrative reviews and positions that can do both. The large offices would have the specialists in them; the smaller offices would have the positions that could do both.
The position specification in front of you is laid out in terms of the general purpose of the position, which is obviously to make determinations under the Rent Control Act and within the Statutory Powers Procedure Act, and to provide information and educate people regarding issues of landlord and tenant matters and information under the act. The duties themselves essentially lay out the responsibilities for receiving materials, analysing them, conducting hearings, discussing things with witnesses and inspecting, or referring for inspection, matters where there are some questions.
Mrs Marland: Mr Chairman, may I ask questions as we go along?
The Chair: That would be the best way to proceed.
Mrs Marland: Mr Glass, regarding the inspection or referring for inspection of units as deemed necessary, maybe the answer is under "Skills and Knowledge," but when you are handed material at the start of the meeting, it is hard to --
Mr Glass: My apologies.
Mrs Marland: No, that is fine. I am not criticizing; I am just saying that it is impossible to listen to you and read ahead as well.
What I am interested in is, what ability can we be assured this rent officer will have that qualifies him to do the inspections and at what point does he decide to refer for inspection?
Mr Glass: I guess there would have to be some judgement exercised at the hearing regarding the issue in front of the rent officer. The weight of evidence is on the people who come forward to the hearing and ask that a particular decision be made. When we get down to issues of judgement on the clarity of the material put in front of him, the rent officer would have to make a decision at that point whether he was competent to make a judgement or needed assistance in coming to a decision. I guess the easy answer is that any time they feel like calling in experts, they could.
Mrs Marland: We are dealing now with the rent officer position and you are saying the duties include inspecting or referring for inspection.
Mr Glass: Yes.
Mrs Marland: Before the hearing starts, I assume the rent officer will be making an inspection of a facility or unit.
Mr Glass: Possibly. I think it would depend on the nature of the hearing. Again, it could be a hearing regarding an extraordinary operating cost increase because of a water rate increase.
Mrs Marland: Which might be just paper information?
Mr Glass: Possibly.
Mrs Marland: Yes. That is not a difficult area.
Mr Glass: It could also be a roof. It could be very clear that a roof was put on the building. That could be very clear from the bills for the roof. The inspection, if there were one, might simply be a walk by the building to say, yes indeed, there is a new roof on this building and it is finished.
Mrs Marland: My concern is greater in the area where we are dealing with this very difficult word "neglect," where we have no guideline regulation or description of neglect or we do not have any examples of neglect. You are talking about this rent officer position doing inspecting, so I am asking what kind of background he will have that qualifies him to inspect and interpret neglect?
Mr Glass: The skills call for experience and training in these areas and if the people hired for this job do not have those skills, we would be training in that area. In terms of the skills themselves, I think we would have to admit that there are going to be limits to the skills that any one individual can have and consequently they could avail themselves of expertise if required. I am not sure a rent officer would be able to judge neglect in an elevator system, so I think he might have to go out and get an expert witness to come in and provide such information if it were required during a hearing. On the other hand, I think they should be able to identify routine things about whether work is done or not, whether bills and things seem to be appropriate or within the general kinds of expenditure levels you would expect for certain types of repairs.
Many of the people who are doing this are already in the system. Many of them have already done hearings under both the Residential Tenancy Commission and the current legislation. They have seen a lot of cases and would have considerable experience in this area.
Mrs Marland: Where it is necessary for the rent officer to call on a professional opinion in the broad sense of "professional" -- somebody who specializes in concrete work or a mechanical functioning piece of equipment -- who pays for that?
Mr Glass: If we called the expert witness, we would have to pay, I would imagine, but again I would hope those would be rare cases where the evidence presented to us was inconclusive.
Mr Jackson: Under an appeal, the onus was always on the landlord under the old system. He would say, "The following improvements are required because there's a degree of pass-through." I am oversimplifying here. The landlord would routinely pay for those inspections and they would be available to guide and assist the application.
Under this system everything is turned on its ear, though, in the sense that now it is not in the landlord's best interests to go out and get all those documented evidences of required maintenance. I use the word "experts," so-called, very loosely here; sometimes it is basically a letter. I have seen all manner of these on applications over the years. The point I am trying to stress is that under this system the responsibility for generating this now falls more on the tenant than it does on the landlord, unless the landlord is able to get a letter saying, "We really don't need these improvements, and here's my testimonial." I do not think there will be a lot of that. I think they will be silent on the issue.
Since you have not engaged in the costing of that, to what extent have you looked at the implications of where tenants come forward and say, "We really think this should be inspected and it should be looked at and to that degree we should send somebody qualified" -- using your word -- "since your rent review officer is not"? Do you see where we are changing the genesis of who goes and seeks out this information.
Mr Glass: I do not believe the system has been completely turned on its ear. I would imagine that in presenting a case, the landlord is going to have to make the case and present the evidence. Similarly, if the tenants are making a case for neglect, there is going to have to be some evidence brought forward to indicate that there is neglect. I think where that evidence raises sufficient doubts in the mind of the rent officer, and he feels he cannot make a decision based on that evidence and the counter-evidence presented, that would be the point where he might decide to do an independent inspection or call in an independent expert. I do not see that happening an inordinate amount of the time. I could be surprised, but I do not see it happening a lot of the time at this point.
Mr Jackson: I will yield back to Mrs Marland. I would like to pursue that further, because I want to cite some examples, based on my understanding of this new legislation.
Mrs Marland: Mr Glass, my concerns revolve around the expertise of the rent officer in doing these inspections. You have actually clarified that if he does not have the expertise, that would probably be only in his opinion. I guess he is the one who is going to decide whether he has the expertise.
Mr Glass: That is essentially the nature of the position: sound judgement and ability to exercise that judgement based on the evidence in front of the officer.
Mrs Marland: It is a pretty powerful position, because in essence he is his own job review person.
Mr Glass: There are rehearing provisions within the act.
Mrs Marland: Rehearing?
Mr Glass: It can be opened up. People can write to the chief rent officer and ask that the thing be reconsidered.
Mrs Marland: Yes, but conditional on a serious error, in the opinion of the chief rent officer, I guess.
Mr Glass: Yes.
Mrs Marland: That would not be a very usual situation.
Mr Glass: I hope not.
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Mrs Marland: Maybe we will have to ask the minister this: What would qualify as a serious error? How would you describe a serious error if that is the wording in the bill?
Hon Ms Gigantes: I think one could describe it in terms of many aspects of the legislation. If an officer made a decision that did not reflect one of the requirements in the legislation, that would constitute a serious error.
Mrs Marland: What about if the rent officer made a judgement based on his level of understanding of what constituted neglect without seeking another specialist's interpretation of the condition of whatever it was? If he looks at a concrete wall or floor or a steel structure or whatever and says, "Yes, I agree, it's a result of neglect," and maybe it is found later that it has not been a result of neglect, what happens? Is that a serious error, because he has not called in an expert?
Hon Ms Gigantes: This is such a hypothetical example that it is very difficult to know how to make an assessment of it.
Mrs Marland: I do not think it is very hypothetical. If you are going to say that the rent officers are going to be trained to be able to make a judgement, then it is not hypothetical. Their responsibility is going to be to make a judgement. I am simply saying that if you get an individual, which I might suggest is human nature -- we all think we are pretty good at our jobs or else we do not succeed. If you do not have confidence in yourself you cannot do any kind of job. I am just saying that there may be a situation where a referral for inspection by someone who is a specialist should have taken place. Would that be a serious enough concern to the minister that it could constitute a serious error in the process of the hearing?
Hon Ms Gigantes: I think it might or it might not. It would depend on the case. We run into situations like this in many areas of professional judgement. It is always subject to the conditions of the particular case to decide whether an adequate judgement has been made or not.
Mrs Marland: I would not be so concerned if there were some course of appeal of these decisions. Any decision by an individual in the majority of government legislation has some course of appeal. Here we are dealing with the individual judgement of that one individual, and we are hearing that the only time that opinion might be reconsidered is if there were a serious error. The answers lead to support for the position I have had all along, that this rent officer is all-omnipotent.
I have been somewhat facetious, I recognize, in referring to rent officers as "wizards," but if you think of the connotation we have of a wizard, this is what the rent officer is. It is his judgement, and it is on his judgement that pivots perhaps millions of dollars either of eligible rebate to thousands of tenants or an ineligible claim by a property owner where the expenditure of millions of dollars is involved in repair or maintenance or whatever the category you want to use as an example.
Everything in this bill, section by section by section, pivots around who this rent officer is. In trying to find out what his or her qualifications are, we are finding that it is still up to that individual to decide whether or not he is a specialist. I am quite sure that if he wants to keep his job, he is going to have to prove he is competent in his judgement and that he has the ability to do the job, which means that probably he is not going to want to call in somebody else to do an inspection very often, especially if he knows his boss is going to have to pay the bill.
Mr Glass: In terms of addressing the one issue, I think to a certain extent it is going to depend on the evidence that is put in front of the rent officer. If there were no evidence that a particular situation was substandard or neglectful, I do not know how a rent officer would make the determination.
In terms of the skills of the individual, their decisions are registered. They are public information and they are reviewed within the organization. There is staff training and support within the organization. There are specialists they can call on within the organization. I do not think there is an expectation that if someone got into trouble and needed legal advice, needed financial advice, needed advice on maintenance or particular issues, there would be any black mark against that individual if he called on that advice. Quite the contrary: We would expect people to avail themselves of the resources that are within the ministry and if necessary outside the ministry. In view of the amount of time and money and dollars invested in the hearing itself, I think it would be very remiss if a rent officer did not avail himself of specialists if he felt the need. I do not see it happening very often at this point, based on our experience to date, which involves a number of judgement cases as well.
Mrs Marland: What percentage of the people you presently have working in similar jobs under the existing legislation do you see being able to do this particular job?
Mr Glass: We would probably have a specialist position that did administrative reviews, which is very much like the current duties of a rent review assistant. This is where someone has chosen not to use the hearing. I think we have those people available now for all the positions that would be required under this act. Currently we have about 15 to 18 people, civil servants, who have hands-on experience in doing hearings either in our organization or seconded to the board for work with the board.
Of course our first order of business, in terms of staffing up for the organization, would be to go to the civil service, to look inside the civil service and inside our own organization. The next round of recruitment would be for people who have particular skills in this area. We have a number of board members currently existing. I would expect they would be interested in positions of this nature. We have a number of people who do other kinds of hearings under the Ontario Municipal Board and positions of that nature. I would expect they would be interested in these positions. Again, I do not think there would be a terrible problem staffing up for these positions.
Mrs Marland: Does the OMB currently deal with some of the --
Mr Glass: I am talking about doing hearings and experience with doing hearings. There are other regulatory groups and legal groups within the government.
Mr Jackson: You just picked the best one.
Mr Glass: Perhaps it was not the best one.
Mr Jackson: That is the blue chip one in the province.
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Mrs Marland: I did not understand why you said the OMB. Generally the OMB panel members are people with expertise in municipal affairs and planning, and that does not qualify in these areas. I am talking about the technical, physical plant, about structural things and things related to building.
I think the easiest part will be where you have figures and bills. That stuff is black and white; it is printed. People did a job and it was billed, or the hydro rates went up or municipal taxes went up. All that stuff is printed in front of them. It is the intrinsic decisions that have to be made in the abstract -- I hate to use the pun -- because it is concrete information, concrete evidence. There are going to be situations where the evidence is going to be based on history that is perhaps word of mouth and interpreted by somebody, or a physical, visual examination. It is the expertise of that individual I am very concerned about.
Mr Glass: I agree with you. I think there is going to be a wide range of hearings and there is going to be a wide range of complexity with those hearings. I would hope most of the hearings -- the evidence, the material, the decisions -- are going to be straightforward, but I believe we have the expertise or can recruit the expertise for the kinds of hearings that require the kinds of subtleties you are talking about, that the people who do not have the specific expertise to deal with particular bits of evidence can get that expertise if they need it.
Mrs Marland: What is the proposed salary range for these rent officers?
Mr Glass: We have not had a final classification of this position. The current rent review administrators I think range from about $45,000 to $66,000 per annum.
Mrs Marland: Actually, I am surprised. So this might be comparable, $45,000 to $66,000?
Mr Glass: It is going to fall in that range.
Mrs Marland: I am surprised it is that low.
Mr Glass: Really?
Mrs Marland: I am surprised it is that low for the complexity and the responsibility of this position. When you could have millions of dollars pivoting on the decision of that individual, I am surprised you could get somebody with the kinds of qualifications that I think are needed for that salary range.
Hon Ms Gigantes: This is an interesting complaint.
Mrs Marland: It is not a facetious complaint; it is a serious comment on my part. If you are going to ask somebody to have the experience and the judgement to execute the responsibility this bill gives to rent officers, then you are certainly going to have to be able to pay for that expertise. That is why I am making the comment.
Hon Ms Gigantes: Take it under advisement, Bob.
Mr Glass: We would love to. I have a human resources specialist here today.
Hon Ms Gigantes: We will bring it up in estimates.
Mr Glass: We are always arguing about salaries with them, so I trust she will take it under advisement.
Mr Jackson: Having been involved in watching rent review since 1975, I see some trends. One of the trends I want to raise with you, because I want to bring it back to Mrs Marland's question, is that in the renaissance period that followed Bill 51, where we were employing an inordinately large number of people because the system was expanding, we were all proud of our approach as a province to employment equity. I am quite familiar with the Hamilton office, for example, where we are very proud of the fact that a receptionist and a secretary, both because of internal applications, were able to obtain these positions as rent officers. There is a large variance between the work of a receptionist and the work of -- that would concern me less as those types of individuals who have been able to get into the system more readily because of employment equity -- I have seen all the administrative memos that say: "We're not dealing with the best-qualified white Anglo-Saxon Protestant male here. We're now looking at employment equity matters and internal applicants." My concern, though, is that this legislation removes a lot of the discretionary aspects and we have more decisions that are lockstep, except at some very key points. Are you following me so far?
In my view, those key points flow from information that no rent officer has the expertise to deal with. Again, that comes back to the point I raised earlier, and I think Mrs Marland is trying to get this point through as well. My fear is that we still are not going to have, even with limited discretionary rights or procedures or challenges or responsibilities for chief rent officers -- I see a lot of that discretion being condensed, but in this area they can make some very serious mistakes. This is my thesis and I am very worried about this. Under the old system, it was to the landlord's advantage and best interests to bring forward documentation after documentation, which the rent officers relied on. Under this new system, it is in the tenant's best interests to articulate those concerns and to get the necessary expertise.
Invariably there is a cost associated with it, unless you do it as I did. We went through the whole building and asked, "Is there anybody in this building who is an engineer who can do this, and do it for us for free?" We mitigated a lot of our costs. A lot of tenants' organizations cannot do that. Now we come back to the point of how much money you are going to have, because the expertise is not there, regardless of what we are paying.
The other supplementary to that has to do with whether you are satisfied that your three years of employment equity have brought you to a certain level, that in fact you have achieved a comfortable level and this would be an external competition that is opened up extensively. Have you reached those levels, in your mind? I would like you to talk about that point because I certainly have been monitoring it at some of the field offices I am familiar with.
Mr Glass: Let me deal with the sensitive area of employment equity at this point in time. This government and the previous government set goals and a general direction in terms of the makeup of the civil service that reflected the makeup of the population. The happy news for me is that any goals or targets set for the year 2000, with the exception of the disabled and of natives -- we are talking about one or two positions in this whole organization -- have been met. Mrs Marland talked about "he" doing a hearing. The odds are four out of five that it will be a "she" in our organization, as 87% of our staff are females. We have met all our targets. Consequently I am not, nor is the ministry, under any pressure to do anything but recruit the brightest and the best, if that is the question being asked.
Mr Jackson: No, I am not drawing a corollary between employment equity and the brightest and the best. I wanted you to confirm that almost all those appointments were internal, which is what I understood they were.
Mr Glass: That is correct.
Mr Jackson: So instead of internally within the system, you are now --
Mr Glass: I am sorry; the appointments to rent control?
Mr Jackson: Rent review officers.
Mr Glass: Rent review officers; the rent review administrators now?
Mr Jackson: The appeals board -- forgive me for saying it -- were all political appointments in one sense or another. They were not charged with the responsibility of the actual review.
Mr Glass: The internal staff who have been hired within my organization were hired through the competitive process, period.
Mr Jackson: I am separating between the staff and the review panel.
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Mr Glass: The next round of recruitments will be done either by retraining staff that can be retrained or most likely, at some point, via the competitive process to finish that off, and it will be the competitive process that exists within the civil service now that requires we advertise.
That requires advertisement for recruitments, standard questions asked of all applicants. The best applicant wins and the process can be reviewed and grieved.
The Chair: Does that complete your supplementary, Mr Jackson?
Mr Jackson: It does, thank you, Mr Chairman. Thank you, Mrs Marland.
Mrs Marland: Maybe Mr Glass wishes to continue. I think we were at inspections and referring for inspection, and you answered that question.
The Chair: Mrs Marland, I have two other members indicating they wish to ask a question.
Mrs Marland: I will wait until we get further down.
Mr Morin: If there were an administrative error on the part of the rent officer, would there would be a possibility for the person to go to the Ombudsman and have that error investigated?
Mr Glass: I would hope, under the act, that people would go to the chief rent officer and the chief rent officer would deal with it.
Hon Ms Gigantes: In fact, it would be a requirement before the Ombudsman's office would -- as you well know, Gilles.
Mr Morin: Let's say he follows the procedure and goes to the chief rent officer and is still not satisfied. Could the Ombudsman investigate?
Mr Glass: Yes, the Ombudsman can investigate.
Mr Morin: So there is a right of appeal.
Mr Glass: Yes, and there is appeal to the courts for matters of law.
Mr Morin: Or administrative error?
Mr Glass: Yes.
Ms Poole: What about an error in fact, not an administrative error? My understanding is that as far as the Ombudsman is concerned, it is only with administrative errors.
Mr Glass: My understanding -- I need some help on this -- is there could be a referral to the Ombudsman under that situation if it prejudiced people, but I would presume they would go to the courts on that.
Ms Poole: I would like to go back to the section where you were talking about the rent officers and the qualifications, the wide range of expertise. One of the concerns I have expressed throughout this clause-by-clause is that the rent officers will all come from their particular biases, depending on what their life experiences were before they became rent officers. I think that is a given. Some people might be considered to be pro-landlord because they worked in a landlord's building for years, and some might say they are pro-tenant because they worked for a tenant advocacy organization, but they all come with particular biases of some sort. It is impossible in life not to.
As Mr Jackson pointed out, there are some very key areas in this legislation that are left to the discretion of the rent officers. What happens in the instance where you are getting different precedents from different rent officers and yet there is no right of appeal except to the Divisional Court on a matter of law? What happens in those types of instances? I can see it happening.
Mr Glass: I think that in the current system, the hearings board, there are precedent-setting decisions as well. There are a couple of ways of overcoming bad precedents being set within a decision. There are internal processes where people can seek advice and counsel before finalizing their decision, and there is review after the fact of precedents and decisions that were made so that a common body of policy and knowledge is developed around common types of decisions faced by rent officers.
The system anticipates that happening and the organization anticipates that happening. That is why we have built in a program standards group and quality assurance reviews, on part of it. In terms of individuals making decisions, these officers operate quite independently. They are not bound beyond the act and the regulations, but hopefully they would be guided by common sense and policies and procedures that are set in place.
Ms Poole: It gives me some concern when we start to use the words "hopefully they would be guided" by common sense and the procedures that have been set in place, because that is part of the problem. If they are operating independently and if there is virtually no right of appeal, I can see instances where they come out with very different decisions. Landlords or tenants might be saying, "I'm going to try to get my case before X because...." I am not saying this as a criticism of these people. I am just saying that all people have an element of bias depending on their life experiences and what brought them to it.
Unless you are telling me that before the decision goes out, it will be reviewed by some other mechanism within your branch, I am concerned that they independently can make these decisions, which might not be governed by precedent or by the expectations of the legislation.
Mr Glass: In terms of assignment of cases, applications, it is the chief rent officer who would make that determination. That would discourage, I think, shopping around and looking for the rent officer one thinks is going to provide the answer one wants. In terms of review before a decision goes out, the answer is that it could be reviewed, but it is not anticipated that decisions would be reviewed before they go out unless the rent officer has requested that.
Ms Poole: Granted, the chief rent officer might have the prerogative of setting the schedule for which cases are assigned to whom, but there is also the very real possibility that certain rent officers will take night hearings and others will not. So people can plug themselves into a night hearing if they feel there are certain officers taking these particular cases, and they have a good chance of getting one of the ones who is favourable to their particular case.
Mr Glass: One of the things we have tried to be fairly direct about on this position with the staff and the organization is that they had better be prepared to do hearings that are at the convenience of the client groups, not at their own convenience. Client services are going to be a very strong thrust of this new organization. I would expect that many people will not want the inconvenience of having to leave work, to come in during the day, to travel great distances. I hope this will be a group that gets out, and I expect will get out, and will do nights and will do weekend hearings. I cannot anticipate a situation where someone would say, "I'm not doing night hearings," under this system. It just is not in the cards for this position.
Mr Jackson: Unless you already have it.
Mr Glass: We do not --
Mr Jackson: So this is grievable.
Mr Glass: The position that is being drafted will be quite flexible in terms of hours.
Mr Jackson: You will accept the grievances for fellow workers when they have to do all the night sittings because the single parent mom with three children who works for you and who does not do evening sittings -- we are going to impose that?
Mr Glass: I would not want to comment. Some of our best and most flexible people are able to make arrangements, whether they are single moms or married people. That will be an understanding before they apply for the job. That is what is coming.
Ms Poole: Getting back to the discretionary powers, an area that has caused great discussion in this committee centres around the terms "neglect" and "inadequate maintenance." I think Mrs Marland was referring to those earlier. Part of the problem we are dealing with is that these terms are not defined in the act, nor are any criteria given. It was the position of the opposition members on this committee, both Liberals and Conservatives, that it was imperative that tenants and landlords know with what criteria they are going to be working. Late in the clause-by-clause we had some indication from the ministry that it was considering "interpretory rules," I think they were called.
Hon Ms Gigantes: Interpretative.
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Ms Poole: Yes, interpretative rules, which I translate into criteria for inadequate maintenance. I think they were going to consult about it and were considering it, but it was not definite. Is there any such process or set of rules that are going to apply to the term "neglect."
Mr Glass: In terms of regulations, we had not planned on it. In terms of guidelines, yes, we had planned on developing guidelines in this area where it is reasonable. There are many different kinds of situations we could run into, but I think in terms of the most common situations we can point people to obvious things to refer to.
Ms Poole: Could you share with our committee the results of --
Mr Glass: They are still under development.
Ms Poole: Have you got even a proposed draft at this particular stage?
Mr Glass: The material we have is indeed in a very rough state. I did not bring anything to share with the committee today if that is the --
Ms Poole: We are still meeting tomorrow so we would be delighted if you could send anything over.
Mr Owens: Unless we hit clause 130, if that is okay.
Mr Glass: I am sorry; I am not sure it could be brought forward quite that quickly. Most of our efforts have been in developing regulations and procedures at this point at a much different level.
Ms Poole: Mr Jackson just made the comment, "It certainly wasn't because our committee pushed you by getting the legislation through so quickly that you didn't have sufficient time." We have only been asking for this since -- my recollection, I think, is August 1, 1991. Anyway, Mr Glass, I would very much appreciate it if you could check the status of that. If you could forward to our Chair tomorrow any information you could share with us, I am sure we would be quite delighted to have a look at it.
Mr Glass: Certainly. We would be pleased to.
The Chair: Mr Glass, do you wish to continue with your presentation?
Mr Glass: I think we had just referred something for inspection in the rent officer position.
Essentially the balance of duties cover concluding an application, making a determination and setting rents, and some reference to specialized rent registry applications for determinations of error or final certification of maximum rents. There is the possibility of referring, for further inquiry and investigation, issues of apparent fraud and false and misleading information. There are a number of duties listed on page 2 explaining to parties how the act and its regulations work, and preparing issue sheets for the ministry in briefing them on sensitive issues that might have arisen during the hearings themselves.
There are a number of what I would call softer skills in conducting the hearing itself, eliciting information from people by being sensitive to very emotional issues from landlords and tenants, and basically handling a hearing in an appropriate manner listed in the act. There are a number of harder skills in using our particular software programs and technology to help them come to decisions.
Mrs Marland: I see you turning the page. Before you do that, the second to last one on that page says that the rent officer "provides technical guidance/assistance to analysts and clerks." What are you referring to there?
Mr Glass: If we look at the production teams, we are talking about those analysts and clerks, and we would probably be looking at the question of how a particular item -- perhaps a particular financial item, some questions about interest -- would be handled under the legislation.
Mrs Marland: I just wondered what you meant by "technical guidance". I knew what "assistance" meant.
Mr Glass: Perhaps "procedural legislative guidance" might be a better term there than "technical".
Mrs Marland: Based on the rent officer's knowledge of the legislation when he is dealing with these people under him.
Mr Glass: That is correct.
In terms of skills and knowledge, we are looking essentially for individuals who understand business finance and accounting principles, are familiar with residential property development issues and construction issues and have the tact, diplomacy and skills to hold meetings with groups of people in an emotionally charged atmosphere. Essentially, as I said, there are some harder skills and knowledge in the use of particular equipment that we hope to get, but people could be easily trained.
Mrs Marland: Where are you now with your training schedule? The reason I ask is that we received a package -- I have forgotten when we received this now, because as I keep saying unfortunately the letter was undated, but I think it was back in December. This is interesting. I notice that I have made a note that whoever answered my question on rent officers at that point said the projection was for fewer staff on Bill 121. The other notation I have here is "106 to be hired". That probably was in response to what the impact of Bill 121 was going to be.
Mr Glass: As I say, there is a range of numbers there. We hope we could bring this in under the current number. I am not sure, it depends very much on the application workload.
In terms of staff training and development, I would like to go back, actually, to almost a year ago when the act was proposed. At that point we started with general orientation of all our staff to the legislation and the process involved in the legislative debates and what they could expect. There have been more specific training programs held around the legislation since that time in different aspects of the legislation. We have set up a rather extensive committee process where staff are actually involved in developing procedures under the legislation and then their work is reviewed by other staff. It is a fairly comprehensive approach to orienting people to the details of the legislation.
In terms of training towards hearings, our first go-round on that was to familiarize people with the hearings process and with the SPPA, the Statutory Powers Procedure Act. Staff have been briefed on the requirements of the Statutory Powers Procedure Act at a series of regional meetings and they have been visiting hearings being conducted under the SPPA.
In terms of hands-on training, we have seconded three staff members so far to the hearings board. They are actually doing hearings. They have gone through an OIC appointment but they retain their status as civil servants as well. Those are changes introduced under Bill 4 and there are more OIC appointments anticipated in the next few weeks. We will continue that process as well.
Mrs Marland: OIC?
Mr Glass: Order in council appointments; sorry.
Mrs Marland: It is okay; we are just a world of acronyms and I thought that might have been a ministerial acronym and not one I was familiar with.
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Mr Glass: I spent a lot of yesterday going through the job description trying to eliminate acronyms in it. The training plan under the act will call for intensive training of people to do hearings. The board actually has a fairly comprehensive package to train its members now. We would be able to borrow from that and do comprehensive training under the legislation itself, but I have to stress that many of the things done under this proposed legislation are done now but in far more detail.
For instance, this act lacks the financial and economic loss provisions that are extremely complicated in the RRRA. Both acts contain extraordinary operating cost increases. Both acts have tenant rebate applications. There will be subtle differences. A lot of the basic information sought out and analysed would be the same. I stress that in terms of administrative review of applications, the process would be very similar to the process as it stands now.
Mrs Marland: In the package sent to me in response to my earlier questions, there were two areas I want to quickly ask you about, because it refers to rent officers. One was under the category "Procedural Training, RCA: extensions of time, directions, file review techniques, evaluating submissions, determining validity of notices of rent increase, complete applications, file management, workload assessment." Are all those areas fairly routine? In file review techniques, is that something they will learn to expedite their ability to skim over the stuff that should not take as much time? Is that what that means?
Mr Glass: A lot of this is the administration of the process itself and time-line requirements under the act. We have similar kinds of requirements now, but they need to be reviewed vis-à-vis this legislation.
Mrs Marland: One I did think was kind of -- it is not really humorous, because I have experienced a situation where it was very serious. In the conduct of hearings you even have crowd control.
Mr Glass: Something we hope will not happen, but it has.
Mrs Marland: In a physical sense.
Mr Glass: There are a number of techniques of how a hearing is orchestrated, how the meeting rooms are set up, when to exercise control, when people are allowed to continue on. People need to be briefed before they get into them.
Mrs Marland: The final one is "regulations training." If we go back into the House on March 23, and I am sure this will be expedited through the House to proclamation as early as possible, then you are going to draft the regulations. You do not have the regulations now, do you?
Mr Glass: In some cases we have been working with very drafty material.
Mr Jackson: By definition that means it has holes in it, you know that.
Mr Glass: It means it has not been signed off on, and unfortunately, again, we are orienting people to this act despite the fact that the committee has not finalized its decisions and it has not gone through committee of the whole. Nevertheless, we have had to prepare people in anticipation that many of the things would remain the same.
Mrs Marland: With a majority of government members on the committee, they will.
Mr Glass: We never say that. In point of fact committees and governments have changed their minds on specific pieces of legislation. We have been working with the best materials we have at hand and it has been running in parallel with these sessions. We have been running as far ahead as we can. For instance, training on the SPPA: We have a good body of knowledge in terms of conducting hearings. We can train people in that area with confidence that either we are going to have hearings or we are not. We likely will have hearings, so that training is not wasted. That can be done.
Training on procedures: There are certain procedures we exercise now around file management, rent determination and base rent validation. All that can be done now.
Mrs Marland: All that stuff is very routine, but when I saw "regulations training" I thought, "How can you do that?" because you do not have the regs yet.
Mr Glass: We have material but we do not have the regs; you are correct.
Mrs Marland: Mr Glass and Ms Le Fur, if you are the two people responsible for the hiring of these wizards, I wish that you do a superb job. It is going to be terribly important to the tenants and the property owners in this province, because the amount of power that is placed in the rent officers' area of responsibility is tremendous. It is a very powerful position with a lot of judgement resting on their shoulders. In fairness, whether you are for Bill 121 or opposed, the fact is that it is going to become law in this province and the rent officer is going to be the person around whose head this law pivots and revolves. I wish you lots of success in your hiring and training and look to your doing a superb job on behalf of the people of this province in your area of responsibility. Thank you for your answers this afternoon.
Mr Winninger: From all the Munchkins, I echo Mrs Marland's thank you for coming today.
Mr Glass: It was a terrible moment when we introduced Ms Le Fur as Dorothy because of the references to the wizard.
Mrs Marland: It is all right. I have an amendment coming up that suggests that wherever "rent officer" is referred to in the bill we place an amendment referring to "the wizard."
Hon Ms Gigantes: You are talking to the chief wizard.
Section 116 agreed to.
Mrs Marland: Will Mr Glass be the chief rent officer? Is that what you mean?
Hon Ms Gigantes: No, but he is responsible for the whole lot.
Mrs Marland: Yes, that is what I meant.
The Chair: We just carried section 116.
Hon Ms Gigantes: Thank you very much.
The Chair: Where did Ms Poole go?
Clerk of the Committee: She is outside having a coffee. Would you like me to get her?
The Chair: Yes. Mr Glass, do not go far. You may be required.
Mr Glass: I am not going far. I was going to go back to my briefcase and look for the numbers I was asked for.
Mrs Marland: We just passed section 116?
Hon Ms Gigantes: Yes.
The Chair: I think now we should return to Ms Poole's amendment to subsection 78(5).
Mrs Marland: Pardon me, subsection 78(5)? Did you already vote on subsection 78(4)?
The Chair: Yes.
Mrs Marland: You have already voted on subsection 87(4)?
The Chair: All of section 78 has been dealt with, with the exception of subsection 78(5).
Clerk of the Committee: She is talking about 87(4).
The Chair: Oh, 87? I am sorry, Mrs Marland.
Mrs Marland: I am sorry. I was asking about 87(4), which is where we were at noon. We have not voted on that yet, have we?
The Chair: Yes, we have.
Mrs Marland: Okay.
Section 78:
The Chair: Ms Poole moves that subsection 78(5) of the bill be amended by striking out "by telephone or otherwise" at the end.
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Ms Poole: Mr Chair, might I ask if there is somebody from the Ministry of Housing who could answer questions relating to telephone evidence as covered in the Rent Control Act?
Ms Parrish: I have responded on some of these issues, but Ms Poole has not been satisfied with my answers. I mentioned this issue to Mr Glass and he inquired of his staff as to their experience under previous statutes. I think he can tell you something although, as you know, Mr Glass is not a member of the hearings board.
Mr Glass: I was asked to review some of our experiences as quickly as possible today. I only had a few minutes to check with a number of people who had done hearings under the Residential Tenancy Commission and with some associates at the board. Indeed, there is a history of getting evidence over the phone. This particular provision in the act has been placed there to save time and money, particularly in areas like the north where there could be great distances to travel.
The usual procedure would be a conference call -- this would be a small hearing -- where other parties could address the individual on the other end of the line. It is usually fairly specific information they are looking at. The procedures require that parties be able to hear and understand the person while he was speaking and be able to question that person. I think in terms of a conference call situation as opposed to someone with a telephone at his ear relaying information from that conversation to other members of the party. That is essentially what is anticipated.
The person I dealt with said there had been a number of instances in the north where weather had prevented people from getting to the hearing and that short of rescheduling the whole thing and bringing people in again, it was much more convenient to get the evidence over the telephone. That is essentially what that is there for.
Ms Poole: Mr Glass, one of the concerns I expressed on the record this morning was that I had talked to both a current hearings board member and a former one. Mind you, they were both from southern Ontario locations, but they indicated that in their experience, which was quite considerable, this provision had not been used. They were extremely reluctant to even entertain affidavits because of the fact that there was no opportunity for cross-examination. Telephone evidence was certainly not something they would entertain.
We are talking about telephone evidence of a witness to the proceeding and about an adversarial condition. We are not talking about where the appeals analyst, who is the person who assists in preparing the file, makes telephone calls to ascertain factual information such as: "Is this your suite number? Is this the correct address? This is the type of information you must bring with you," and that the file is factually correct prior to its going to the hearings board member.
Mr Glass: The situations I discussed were actually in the north. I would not anticipate something like this in a central location. The situation I was particularly referring to was routine questions on evidence that was in front of the parties at the time and it was an interpretative issue. I believe it was a bill and some questions about that bill. We expect that this will be used very sparingly and in situations where it was more a matter of clarification than a matter of dispute. I take your point very well, that indeed if this was a hostile witness or a questionable witness or something like that, you would not want to do that over the telephone. In fact, I might be quite appalled if someone did.
Ms Poole: Thank you for that, because one of the concerns I had from the discussion yesterday was that it was going to be used in a far more widespread manner. I think there was a reference made to a little old lady who did not want to go out at night or people who had to work during the day, that type of thing, where it was basically for the convenience of the witnesses. But we had grave concerns. Certainly the members of the opposition did. You can tell by the massive attendance here that -- using the royal "we" -- we are very concerned about it.
Mr Glass: I am sure you are carrying it for all.
Ms Poole: One of the concerns was on the issue of identification. I can certainly understand if it is a witness interpreting a section of the bill, if it is a professional matter. What I am more concerned about are situations landlords and tenants quite often fall into, where it is an area of controversy, where it is adversarial and the use of the telephone with witnesses could, I think, be massively abused.
One I started to mention was identification. How do you prove it is the person you say it is? You phone them at a certain number, but with call-forwarding abilities these days it could be problematic. The second is credibility. When they are not there face to face it is extremely difficult to gauge the credibility. You cannot see facial expressions or body language. You cannot see whether certain questions are making them extremely nervous. The third issue is that the accused should have the right to have his accuser face him when giving the evidence.
These are the types of things that made us very concerned. But my concern is that as it is expressed in subsections 78(2) and 78(5), there are no restrictions on the use of telephone evidence. I contacted various other appeals boards, boards and tribunals. I think I had a list of nine I read into the record this morning. I contacted solicitors who acted extensively with these boards. They said it was unheard of to accept telephone evidence, that the only time it was was done when it was teleconferencing, I think they called it, between counsel. The lawyers involved would do it, but because of these other issues it was very firmly discouraged.
Could you tell me if there are going to be regulations put in place to offer not only guidance but actual instruction as to the use of telephone evidence?
Mr Glass: I do not believe we had anticipated detailed regulations under this section. We had not anticipated using it in that manner. We share the concerns you have expressed. What we had seen was the opportunity for different parties to question certain witnesses over the telephone where it would be a matter of routine information, a recognized official or where something not in dispute but where we were receiving clarification.
Ms Poole: I certainly would have no objection to that if you had a structural engineer whose report was unclear about a point or something. Certainly that would be very convenient.
Mr Glass: I am thinking even more basically, like calling the city and saying, "Is this the tax bill and is this the period it covers," and things like that. There would be no question that the official was who he said he was and that it was a matter of seeking clarification rather than disputing something.
Ms Poole: I do not know what to suggest. In its current form there is no other section in this act that gives me as grave concern for the possibility of abuse as this one, particularly if it was at the sole discretion of the rent officer whether telephone evidence was allowed. Nowhere did I even see that it is at the consent of both parties. Both parties are to be present to hear the evidence, but in my way of viewing it, I did not see any requirement for consent, I did not see anything that would require identification. I did not see anything that would give us protection that it would only be used in fairly rare circumstances or circumstances when it is just technical evidence that was not in dispute and certainly just for matters of clarification.
Mr Glass: It has been our expectation that people trained to conduct hearings under the Statutory Powers Procedure Act would exercise good judgement within the guidelines of that act. It strikes me that dealing with a hostile witness or a questionable witness over a telephone would not be the procedure under that act and therefore it would not be done. I am not sure what other safeguards would be proposed.
Hon Ms Gigantes: I think it is important for us to again remind Ms Poole that these are not telephone conversations simply covered by this legislation; these are telephone conversations in the case of a review that will involve the application of the Statutory Powers Procedure Act. It might be helpful on this point to have Colleen Parrish remind us what that would involve in terms of the process that would be followed.
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Ms Parrish: I reviewed what I said yesterday in Hansard. I talked about how there is always a preference for oral or viva voce evidence. That is because of a series of laws that are not statutorily based but are based essentially in case law that deals with evidence. There are a whole series of rules that are called "best evidence" rules that set out what the courts have said over, to be blunt, centuries of interpreting when it is appropriate to use substituted evidence. Before the days when they had telephones, they had things like commissioner evidence and so on, where people were in other countries or were on their death beds or whatever.
You are quite right when you talk about credibility. Credibility is an issue that usually must be judged by the demeanour and so on of an individual, as well as what he says. So there are a series of rules that people have to apply and think about when looking at evidence. This section simply says that you "may" -- not you "shall" -- interview or question by telephone. That questioning could be a routine matter. I think Bob's example is one of the best. You phone the city of Hearst and have the tax officer of Hearst identify this bill as being the bill of the city of Hearst, and matters of that nature.
I think certainly if parties say, "This is an issue of credibility so I wish to have the opportunity to have live cross-examination of so-and-so," then that person would be required to attend. If he did not attend, then that evidence would not be brought forward. This is a permissive rule that still has to live within all the other rules of natural justice, what is in the Statutory Powers Procedure Act and all these evidentiary rules that have evolved over the century.
There are situations, I would add, where the parties agree to do something by telephone, and also teleconferencing by counsel. My staff spoke with Susan Gillespie who is the vice-chair of the hearings board. She confirmed that they do quite commonly have teleconferences involving counsel. Except in the north, they use this largely for procedural issues, to decide when their experts can come and so on. But at some level, they are still adducing evidence: Their evidence is their expert is not available next Tuesday. That is not very important evidence, but it is still evidence.
I am sorry this is a very complicated answer, but I guess I am just saying that I think there are safeguards within the system. We have the ability to have procedural regulations as well under this statute. I suppose if there was a very big concern about this area we could also look at that.
Hon Ms Gigantes: Given that we are providing a permissive avenue here for the process, I would hate to rule out the possibility that in very rare cases a person who very much wished to take part in the hearing and physically found it very difficult to do so might be involved on the telephone. Without getting into a long discussion on what is a very interesting subject, we are changing what we have come to accept as a means of providing testimony. We do it in many areas. We are experimenting now. Certainly I feel it is a door that is worth opening to provide the possibility for a witness to participate who physically finds it difficult to take part in the process under this bill. To be able to use the telephone is a step forward. I would hate to define that so narrowly to questions like counsel ascertaining this or that, or checking with a tax department, that we would close that door. That is my personal feeling about it.
Ms Poole: Certainly I do not think it is a question of closing doors; I think it is a matter of opening windows to abuse. That is what I am talking about. I do not think the situations Mr Glass describes are problematic. What to me is problematic is that I get the impression, both from the few comments made yesterday and from what you just said, that you feel it is not only a matter of providing technical evidence; you also feel it is a matter of accessibility.
Hon Ms Gigantes: Yes, I do. I find the likelihood rare of an officer finding that acceptable. I think it would be a rare case. I think we have to begin to frame our processes under the law so that the rare cases can be part of the process of the law. This is one avenue for doing that. I can certainly imagine it would be well contested if a rent officer decided in a highly contentious and argumentative case to bring forward a telephone input to a hearing that could be challenged on the basis of whether that was actually the correct person on the other end of the line. This is the kind of thing no rent officer is going to want to get into if it is going to create the kinds of problems you are suggesting. I think there are occasions when it would be quite suitable for a rent officer to exercise discretion to permit people who would not otherwise be able to join the process, to join the process.
Ms Poole: But it comes back to the fact that neither this legislation, nor any regulations of which we are aware, nor the Statutory Powers Procedure Act says that this is to be used in rare instances. The example given yesterday afternoon was trying to obtain evidence from very elderly people, persons with disabilities, people with young children, people you are forcing to come out of their homes. I know it is difficult sometimes, particularly if you have evening hearings, to accommodate a group of tenants, for instance, who might find it difficult to come out in the day. But then you have a contrary problem that you then are forcing seniors to come out at night. Many seniors do not like to travel at night.
If you start having a policy where for people's convenience you say that you can take telephone evidence, that is where I think you will open the window to abuse. A senior citizen or little old lady may be sitting in her apartment with an agent from the landlord beside her who is very helpful to Mrs Smith in nodding or shaking his head because Mrs Smith is confused by what exactly is happening. It may not be a dramatic coercion, but it could be something subtle like that. It could be somebody being deliberately fraudulent, but I can think of incidences where it is a subtle form of coercion. There is no ability to discern whether that individual is making his testimony freely or is being coached, is being directed, is reading from a script, is being gently nudged or whatever. That is the concern I have. As long as it is in the current form, without restriction, that concern remains.
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After hearing Mr Glass's supposition, which is that on technical points or where there are great distances to be traversed or unusual situations where it would be used, if there were some guidelines just to ensure that there were safeguards, then I would consider even that to be a reasonable compromise. But I do not think you should just blanket say: "The legislation should stay as it is. There is no intention to have regulations. Hopefully everything will work out, because we do not think it is a problem." The lawyers I talked to did not feel that way. They felt it was quite open to abuse.
Hon Ms Gigantes: Yes, I am sure you could get that reading.
Mr Winninger: Did you speak to them on the telephone?
Ms Poole: Yes, but do you know the difference? The difference is that I had to phone them two or three times to get hold of them, and I recognized their voices. There was some past history since they are close personal friends. I also talked to them about things like leadership campaigns. I put them through skill-testing questions to make sure they were who they said they were. They had all the right answers.
Mr Winninger: I do not really share Ms Poole's overweening concern with the present form of subsection 78(2) or 78(5). I am glad Mr Glass is here to help us through this issue. Ms Poole indicates that there is an absolute right to confront witnesses in Canadian courts. That is just not true. I found out the hard way. I shared a case with Ms Poole in the Court of Appeal, where I argued precisely that. The Court of Appeal for Ontario disagreed, not only with me but also with Brian Greenspan who happened to be there the same day arguing exactly the same charter right. It is quite clear, at least in Ontario law, that there is no absolute right to confront a witness.
I think Mr Glass has made some very appropriate comments in regard to how that section might work in practice. Let's say, for example, there is a non-controversial procedural point that comes up. I do not think Ms Poole would disagree that the telephone would be an appropriate way to obviate the necessity of a witness appearing who is physically incapable of coming, is geographically inaccessible or who has a job and is supporting five children, a member of the working poor who cannot afford to give up that time. But there are other cases that may arise, as the minister indicated, where someone who is confined to bed, for example, might not be able to attend, but might be able to give evidence over the telephone.
Mr Glass, in a situation where the rent officer has recourse to this system of adducing evidence, there might be a speaker phone, for example, so that both parties and their counsel could hear what goes on.
Mr Glass: I expect that there would be a speaker phone because I think it is important that the other parties hear what is being said at the time. Our first recourse in a situation where there is an invalid or a senior citizen who can not get out is to take the hearing to him. I think we talked a little bit about the necessity for that. But failing that, we see the telephone as a possible convenience. Again, I suggest it would be something like you are describing: a speaker phone situation where parties hear and can discuss things with one another.
Mr Winninger: We might have an engineer or other expert in Ottawa and the cost of bringing that expert down to London would be so prohibitive that the parties may agree that the expert should be heard by phone. But if these parties and their counsel who are listening to what is being said on the speaker phone have questions, there is no reason, given modern technology, those people could not participate in the conversation and ask questions if they wanted to.
Mr Glass: None whatsoever. We have conference calls. It is just a regular part of doing business. People can talk to one another and exchange opinions and usually material can be faxed back and forth so they are looking at hard copy material while this discussion is going on.
Mr Winninger: Modern technology.
Mr Glass: It greatly facilitates thing.
Mr Winninger: Let's say a party or counsel for a party decides, "This person who's speaking at the other end of the phone is under coercion," or: "I think his or her credibility is such that I want that witness to be summoned to the hearing. This telephone method is just not good enough to test this person's veracity." There is no reason why a party or counsel could not request that person be summoned, type up a summons and give it to the rent officer to issue.
Mr Glass: None whatsoever. The hearing could be reconvened at a later date.
Mr Winninger: These are some of the procedural and evidentiary safeguards you were referring to earlier that should put Ms Poole and her stable of lawyers at peace with this section. Would you not think that?
Ms Poole: Stable? I guess it is better than "harem of lawyers."
Mr Winninger: It is better than unstable.
Ms Poole: Is Mr Winninger saying they are all horses' asses?
Mr Winninger: Some of these concerns about coercion or about credibility problems are things that could be addressed by bringing the witness in if absolutely necessary and if the telephone method proved unsatisfactory to either party.
Mr Glass: Of course.
Mr Winninger: I have one final point. The rent officer has a considerable degree of discretion as to other tribunals, and there is the Statutory Powers Procedure Act.
Mr Glass: Correct.
Mr Winninger: If the hearing was conducted unfairly or not in accordance with natural justice, these are likely to be the kinds of grounds for appeal on an error in law or jurisdiction that would find their way to the Divisional Court in any event.
Mr Glass: That would be my understanding.
Mr Winninger: If the safeguards are not met or complied with by the rent officer at the hearing, it is likely this would be grounds for appeal on a question of law or jurisdiction, and therefore there are further safeguards in the appellate direction.
Mr Glass: I would hope that our internal systems would catch things like that long before they became a matter of the law.
Ms Poole: I would like to address several of the points Mr Winninger raised. The first is his last point about the right to appeal to Divisional Court. I have a document from the chairperson of the Rent Review Hearings Board, Dr Ratna Ray. Although I believe Dr Ray may not be the chairperson at this given moment, she was at the time this letter was written.
They have said: "While the costs to the parties of appealing to the Divisional Court vary, it is clear that all but the very experienced and able sole landlord and sole tenant appellants will have to hire lawyers. The cost to tenants of an appeal may run in the neighbourhood of $10,000 for a simple one-issue appeal, but an unsuccessful appeal would leave them open to assessment of the costs of the landlord, thus doubling this figure. Landlords' costs run considerably higher, in multiples of $10,000, but this does not paint the entire picture of the appeal situation."
First, the odds of somebody appealing telephone evidence because of the Statutory Powers Procedure Act, on a matter of law, I think would be highly unlikely given the prohibitive costs involved. Second, although there seems to be agreement on the type of so-called "rare instances" when it might be appropriate to use telephone evidence, I still do not see that there is a safeguard that limits the discretion of the rent officer in making those decisions. If a rent officer in a particular scenario thinks, because a person does not want to come out at night or cannot find a babysitter, that he can accept telephone evidence, even though one's compassion might say there is a compelling argument to allow the telephone evidence, on the laws of natural justice and the risks involved I would say those cases should not be numbered among the rare instances.
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I do not see anything restricting those types of instances or any other for that matter. Common sense, as Mr Glass earlier indicated, might be very helpful, but I am not all that optimistic that every single rent officer is going to use discretion wisely, is going to have common sense and is not going to have a particular bias in these areas, particularly if policy directions constantly come from the ministry saying: "We want accessibility. We want to open up the process. We want to open up doors." The interpretation of that might vary from rent officer to rent officer.
The question I have for you, Mr Glass, and you may not be able to answer this because it may eventually become a political question, is, would you consider putting in regulations and guidelines as to the use of telephone evidence?
Mr Glass: Given the way it was anticipated this section of the act would be used, I would not have seen the necessity for it. If the committee were convinced there was going to be this much indiscretion within the rent control system, certainly guidelines could be entertained by the committee. I hope that if we introduce guidelines they will not restrict certain situations that might be crying out for some flexibility. That is my experience with moving in with guidelines, and more particularly, with regulations that in trying to make sure situations are not handled indiscreetly or in a cavalier fashion, we cut off the capacity of people to use good judgement and exercise flexibility where it is called for. I am not sure I have answered your question.
Ms Poole: Yes, you have, and you have answered it very well. I certainly concur with you that among these guidelines there would be an extenuating circumstances provision that would allow for things not in the guidelines but things that cry out for remedy, as you just said. I have no problem with that. What the guidelines would do is ensure that the rent officers are really having telephone evidence for the purpose for which it was originally conceived and have not gone off on a tangent because of their own particular biases.
There are five members of two opposition parties on this committee who for the last six months have been talking extensively about the amount of discretion that is allowed rent officers, and we are very concerned about it. Whether the entire committee feels that way or not, there are certainly a number of us who do.
The Chair: Shall Mrs Poole's amendment to subsection 78(5) carry? All in favour of Ms Poole's amendment? All opposed?.
Motion negatived.
The Chair: Shall subsection 78(5) carry? All those in favour?
Hon Ms Gigantes: You are in favour. Come on.
The Chair: All in favour?
Hon Ms Gigantes: Yes, they are all in favour.
The Chair: Raise your hands. Opposed?
Ms Poole: Mr Chair, there seems to be a strange reluctance by the government to vote for this section.
The Chair: Carried.
Hon Ms Gigantes: I am going to call them on the telephone.
Section 78 agreed to.
Section 89, as amended, agreed to.
The Chair: Section 89.1 is a Liberal amendment. Ms Poole, would you read your amendment?
Ms Poole: I would prefer not to read this into the record, but I have no choice but to do so since it is the only way I can get this amendment on the table. Mr Chair, might I ask that Mr Morin read this into the record on my behalf? I am not sure I could last through four pages.
Mr Morin: Ms Poole moves sections 89.1 to 89.14 as follows:
I move that the bill be amended by adding the following sections:
"Appeal from order
"89.1 (1) Any person affected by an order under this act of a rent officer or the director may, within 30 days of the giving of the order, appeal the order by filing a notice of appeal in the prescribed form with the board, together with any documents that the party appealing relies upon in support of the appeal and which were not filed on the application.
"Record
"(2) Where a notice of appeal is filed with the board, a copy of the notice shall be given by the board to the director who shall thereupon forward to the board,
"(a) the original or a true copy of the application;
"(b) the original or a true copy of all documents and material filed in respect of the application; and
"(c) a certified copy of the order appealed from together with a summary of reasons for the order.
"Filing of documents, etc, by respondent
"(3) Where any person has filed a notice of appeal, the other parties to the appeal shall, within 30 days of the filing of the notice of appeal, file with the board the documents that the parties intend to rely upon at the hearing of the appeal and which were not filed on the application.
"Notice to parties
"(4) After receiving a notice of appeal, the board shall give a notice to the parties stating the date, place and time when the appeal will be heard.
"Issues may be heard together
"(5) Where several different appeals have been made to the board, and the board is of the opinion that it would be appropriate to determine the issues raised by the appeals together, the board may hear and determine the issues in dispute at a common hearing.
Issues may be heard separately
"(6) Where the board is of the opinion that it would be appropriate to deal with some of the issues raised by an appeal at separate hearings, the board may direct that some of the issues be dealt with separately and may set additional hearing dates for the determination of those issues.
"Issues on appeal limited
"89.2 (1) On the hearing of an appeal, the issues will be limited to those raised in the initial application unless the board otherwise allows.
"Agreement to further limit issues
"(2) Where all the parties to an appeal agree in writing, the board may further limit the issues of the appeal to those issues agreed upon by the parties.
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"Evidence
"(3) On the hearing of the appeal, the board shall hear any evidence that is relevant to the issues, whether or not the evidence was tendered or was available on the initial application.
"Burden of proof
"(4) On the hearing of the appeal, the burden of proof lies on the party who made the initial application.
"Hearing by single member
"89.3 An appeal shall be heard by a single member of the board.
"Procedure
"89.4(1) The Statutory Powers Procedure Act applies to proceedings by the board in the exercise of a statutory power of decision.
"Deemed compliance
"(2) The giving to a party of a copy of a notice of appeal to the board shall be deemed to be compliance with section 8 of the Statutory Powers Procedure Act.
"Procedure
"89.5(1) Subject to the Statutory Powers Procedure Act, and except as otherwise provided for by this act, the board may determine its own procedure for the conduct of hearings.
"Policy guidelines, etc, available to public
"(2) All policy guidelines or rules of procedure made by the board under subsection (1) for the conduct of hearings shall be made available for examination by the public.
"Matters board to consider
"89.6(1) In addition to any material, evidence or information submitted to the board on an appeal, in hearing any appeal, the board may consider,
"(a) any matter the rent officer or director, as the case may be, was entitled to consider on the application;
"(b) any material and documents submitted on the application; and
"(c) such other matters as it deems necessary or advisable for the purpose of dealing with the appeal.
"Board may investigate, etc
"(2) The board, in respect of any appeal, may conduct any enquiry or inspection of documents or premises that the board considers necessary.
"Additional material
"89.7(1) The board may direct any party to the appeal to file such additional material as the board considers necessary and the other parties shall have an opportunity to examine the additional material and to explain or refute it.
"Where additional material not filed
"(2) Where any party to the appeal fails to comply with a direction of the board under subsection (1), the board may,
"(a) in the case of the appellant, refuse to make an order allowing the appeal or that part of the appeal relating to the failure to comply with the direction; and
"(b) in the case of any other party to the appeal, refuse to take into account any representations made in respect of the matter regarding which there was a failure to comply with the direction.
"Board may question parties, etc
"89.8 At the hearing, the board may question the parties who are in attendance and any witnesses with a view to determining the truth concerning the matters in dispute.
"Other relevant information
"89.9 In making its determination, the board may consider any relevant information obtained by the board in addition to the evidence given at the hearing, provided that it first informs the parties of the additional information and gives them an opportunity to explain or refute it.
"Order of board
"89.10 Upon completion of a hearing, the board shall by order,
"(a) affirm the order of the minister;
"(b) vary the order of the minister; or
"(c) substitute its own order for the order of the minister,
"and shall forthwith give a copy of the order to the parties to the appeal, together with reasons in writing for the order.
"Power to rehear
"89.11 Where, within one year of the date of an order of the board, the member of the board who made the order is of the opinion that a serious error has been made, the member may, on the member's own motion, rehear any appeal and may affirm, rescind, amend or replace the order.
"Order of member deemed order of board
"89.12 An order of a board member shall be deemed to be an order of the board.
"Board to adopt expeditious procedures
"89.13 The board shall adopt the most expeditious method of determining the questions arising in any proceeding that afford to all persons affected by the proceedings an adequate opportunity to know the issues and be heard on the matter.
"Decisions to be on merits
"89.14(1) Every decision of the board shall be upon the real merits and justice of the case.
"Real substance
"(2) In determining the real merits and justice of the case, the board shall ascertain the real substance of all transactions and activities relating to the residential complex and the good faith of the participants and in doing so,
"(a) may disregard the outward form of the transaction or the separate corporate existence of the participants; and
"(b) may have regard to the pattern of activities relating to the residential complex."
The Chair: Thank you, Mr Morin. If Ms Poole thinks this is not self-explanatory, she may offer an explanation.
Hon Ms Gigantes: It is certainly self-explanatory why we do not want to do it.
Ms Poole: Thank you, Mr Chair, and thank you very much Monsieur Morin. I appreciate your assistance because, as I say, I am not sure I could have got through reading all four pages. I hope my voice does not give out while we are discussing this.
This is, I would say, one of the most crucial Liberal amendments. We feel very strongly about the right to appeal, and this is one of the few areas in which tenants and landlords have concurrence. In fact, all parties other than the Ministry of Housing and the NDP government seem to be unanimous in their desire to see an independent arm's-length appeal board re-established under this legislation.
I find it personally very sad that, in its desire to dissociate itself as much as possible from the RRRA, this government has abolished two of its best features: first, the standards board, and second, the appeals board.
In December, Dr Ratna Ray, chairperson of the Rent Review Hearings Board, sent a document to all members of the Legislative Assembly. It was a report, prepared by Dr Ray, expressing the concerns regarding the lack of appeal process in the proposed Rent Control Act. It was signed, I think, by virtually every member of the hearing board and it solidified extremely well the arguments for retaining an independent arm's-length appeal board.
I am going to give you a number of the points they have made plus a summary of their recommendations. The first item they go into in this brief is to discuss how the possibility of a hearing at first instance appears to answer the shortfalls of the current system of administrative review. They say this is very good, because direct access to the decision-maker allows the clarification of issues at the time submissions are made. Also, many parties are able to express themselves much better orally than they are in written form. They have also mentioned that a hearing can be used as public education and for sharing of information.
However, while having a hearing process at the initial level would solve some of the problems encountered under the RRRA, on the other hand, serious new problems would arise when the appeal from an initial level application is only available to the Divisional Court, and even then only under exceptional circumstances.
The first item they go into when they talk about the appeal and the desire to have an appeal board is the doctrine of separation of powers, the fact that what we need is an independent arm's-length appeals board that would operate independently of perceived or real political influence, and should also be free not only of influence from the ministerial or political side but also from the bureaucratic side. They say, and I will quote:
"The most serious shortfall of the proposed system is the public perception that there is no independent decision-making body which is free from having its discretion fettered in reaching its determinations.
"When the decision-makers are subject to the control and discretion of the minister, there is no public perception of separation of the judicial process from the political process."
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I think that is very true. They have talked about how prohibitive the costs are when you say there can only be appeals to the courts. Earlier, when I was responding to Mr Winninger's point, I talked about the cost of taking a case to Divisional Court and that was in a simple appeal on only one issue. If you are going with the complex case, then obviously it has been absolutely put beyond the realm of almost all tenants and almost all small landlords and probably some larger landlords.
One fact they pointed out in their brief was that under the current system landlord appeals to the Divisional Court have outnumbered tenant appeals in a ratio of over five to one. This is clearly a statement of the accessibility and affordability of this avenue of appeal, or I should say lack thereof -- and those are my words -- which incidentally takes place after one independent appeal hearing to the board. We are talking about a situation that exists right now where there are appeals to the courts, and they have already had an opportunity to appeal, and tenant appeals are far outweighed by landlord appeals.
One of the points they make, which is again very valid, is the current backlog in the court system and the inherent delays this is going to engender. Court appeals have the reputation of taking notoriously long to be heard, so you are talking, instead of an expeditious process, about prolonging the agony for all parties concerned.
They deal with the reconsideration by decision-makers, and it is their estimation that this is an unlikely solution. They say the proposed legislation does have mechanisms for reconsideration of matters that may have been decided in error, but while essentially a rehearing mechanism, it requires a nearly insurmountable onus on the party requesting the reconsideration to convince the decision-maker that a serious error has been made.
The next point they deal with is that there is no mechanism to deal with complex errors of fact. They have pointed out that it is quite unclear in the law how this proposed system would deal with complex errors of fact in law. Clearly errors such as the listing of services and facilities or the number of bedrooms contained in a unit could be dealt with readily. However, with issues of mixed fact in law or complex errors of fact, such as evidenciary issues of standards of maintenance or the proportion of a complex that is found to be commercial in instances like those they would not lend themselves readily to the rehearing process and could not be decided on an appeal to the Divisional Court, since they are not errors of law.
They also elaborate on the situation where the parties have undergone an administrative review. While they acknowledge that the parties have a right to a hearing, they outline several instances where that hearing might not take place, either because they are not aware of their rights, or second, where something may happen later in the administrative review that triggers their desire for a hearing but it is too late to go to the hearing and they are denied it.
In these cases, there is no rehearing mechanism for administrative review. When we talk about the possibility of rehearing, it is only in the instances where the landlords and the tenants have chosen a hearing in the first instance. If they have chosen administrative review, they are out of luck. There is no rehearing in those instances.
They point out that appeals tribunals are more cost-effective and expeditious. This is certainly proven if you compare the cost of an appeals level tribunal with the courts. It is significantly less in time and in dollars. One might say, "Yes, but the Ministry of Housing doesn't have to pay for the courts," but I would say that the Attorney General's office has to pay out of its budget for the courts, so we are talking about taxpayers' dollars in either eventuality, but in one instance you have a much more cost-expeditious situation than in the other.
They also feel a specialized tribunal can better serve the public than the courts because there is an educational aspect involved, communication is far better, they are far more informal than the courts and they are more accessible. Certainly from the vantage point of both cost and intimidation, I think the appeals process through tribunal would be far better for the public than the courts. That is my own commentary, by the way.
Those are the major points the appeals board, which is now called the residential rent hearings board, has made. I think they have made an excellent case for continuing an appeals tribunal. They have also suggested that one way to cut costs would be to have a one-member panel, although I know both tenants and landlords would prefer three. They have suggested that if the minister is concerned about costs, that is one way in which costs could be curtailed.
I found it quite enlightening today, when Mr Glass gave his statistics as to the number of people who would be required under the new process and under the old process, that we are talking about virtually the same ballpark, because as I said in my earlier comments, by disbanding both the standards board and the appeals board I believe the government has done a grave disservice. In the final analysis, their new proposed system is not going to cost less. It is certainly not less complex. It requires the same number of people to administer, and in the meantime tenants and landlords have lost what I think is a fundamental democratic right, the right to appeal.
I cannot say I am very hopeful, because that would be first, dishonest, and second, naïve but I would be wishful that the ministry and the government would change their mind in this particular area. It is one that I think will mean many tenants and landlords will not want to support their legislation and where tenants and landlords will feel there has been a grave disservice to them and a loss to the democratic process. Those are my comments at this time.
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Mrs Marland: I do not wish to be repetitive, so I will not address the comments of Ms Poole in detail, other than to say that I wholly and totally support her comments and her concerns.
It is amazing to our party that the socialist government of Ontario that stands for, supposedly -- you would think from their platform that they are the only people who stand for the rights of individuals. The public knows they are not the only people who stand for the rights of individuals, but here is a piece of legislation that may, through the decision of one individual, the judgement of one individual, have an incredible effect on a very large number of individuals.
If it happens to be an adverse effect on a large number of tenants in this province, or it happens to be an adverse effect on a property owner in this province, whether it is the small landlord with two suites who has invested his lifetime savings in that building or it is a large corporation that through its investment has created a large volume of rental accommodation for the people in this province who choose to rent accommodation, and through that investment has also created jobs in the province, it does not matter really who it is because we would hope that everybody would be dealt with equitably.
It is unbelievable, when you look at whoever the players are, that it is the decision of one person, that all-powerful person who is in a position where he or she can decide and define things this bill does not define, and we have already talked about some of those repeatedly during our deliberations. We have talked about our concern that the bill refers to lack of maintenance, reduction in maintenance, neglect, whatever it is you want to talk about, without definition. We give the interpretation of this bill -- it is like we hand it over with two hands and say to this rent officer, this human being: "Here is the power to make this decision, because this is the power that's given to you through this legislation. Unless you make an error, you're the only person who will make a decision on this matter."
It does not matter, as I say, whether it involves millions of dollars, thousands of dollars or hundreds of dollars; $100 to one person is as significant and as important as maybe millions of dollars to another. It does not matter the amount or the players. It does not matter whether they are tenants or landlords. What matters here is that one person is making a decision and that is final.
I wish I had the time to research a comparison of all the other really significant statutes in this province today where the public has a right of appeal. We happen to believe that nothing should be so final that there is no right of appeal. We believe tenants and property owners have rights. We believe that in their rights there should be the opportunity to appeal a decision of a single individual, namely, the rent officer. Without the appeals board, that opportunity does not exist, and as far as we are concerned, that is totally and absolutely unacceptable.
If you really believed that Bill 121 was good legislation and that the intent of your legislation was to protect tenants -- I was shown a letter this morning that went out to tenants over your signature, Minister. As a matter of fact, I just gave the letter back to my executive assistant, Mora Thompson. Otherwise I would have it in front of me; I have had it here all day. In your letter you are saying to the tenants, "Don't worry, folks, because we're going to pass this Rent Control Act and you will be protected from paying rents that are ineligible for increases the landlords are going after."
Where one individual, the rent officer, may make a mistake, where tenants are in a position where they can legally fight an illegal rent increase and the decision is made not in their favour, you are saying that is final; that is fine with you, and the same on the other side if it is the property owner.
What we are saying is that this is not fine with us. It is not fine with us that people cannot have an opportunity to have what may be a very significant decision heard by one other person or a panel of other persons. We are not hung up about the appeals board. Even now the Ontario Municipal Board, which hears all kinds of appeals, frequently only has one panel member sitting there, but at least it is a right of appeal.
I think your position on this legislation is totally opposite to the public position you take about protecting the rights of people. I think it is unbelievable that your public position says one thing and your other position, through this legislation, says something totally opposite.
Mr Chairman, if you are going to take the vote on this significant amendment, which I assume you plan to do -- I do not know how long your speaking list is. Do you have other speakers?
The Chair: The minister.
Mrs Marland: I am going to ask that the vote be postponed until 10 o'clock tomorrow morning, which we can do either way; we can either agree to it amicably now or we can move a 20-minute adjournment when the vote is called. I think this is such a significant part of this whole deliberation we have been through that we should be able to have our members here to be on the record for a recorded vote on this matter. That is my request.
The Chair: Thank you, Mrs Marland. Of course you can raise that issue when we get to the point of a vote. Minister?
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Hon Ms Gigantes: Having thought about this issue and discussed it with people who have approached it from many points of view over quite a prolonged period of time, I have come to the conclusion personally, and it is the position of this government, that an amendment that would re-create the appeals board in connection with rent regulation would be a mistake.
If I were convinced and if this government were convinced that the existence of the appeal board under the RRRA had proved itself some useful tool for either side in connection with deciding interests under rent regulation over the last few years, we would obviously take this amendment very seriously. But there are many reasons to suggest that it has not been useful. It certainly has been a major cause of delay.
Members of the committee will be aware that current estimates by the Rent Review Hearings Board of its own workload indicate that it will take another year and a half, and perhaps more, to deal with appeals coming under the RRRA. The backlog has continuously been a large backlog; the amount of resources that have been put into the appeals board has continuously been a large amount of resources. The results of both the effort and the financial commitment have not, to my mind or in the view of this government, indicated the usefulness of the process from either the point of view of landlords or the point of view of tenants.
Take, for example, the matter that was cited in the communication from Dr Ray at the appeals board and mentioned by Ms Poole, the question of what happens once the appeals board process is exhausted. Then people still turn to the court. What happens at court? We find that landlord applications outnumber tenant applications five to one -- not surprising -- and I suggest we can expect that to happen if we set up 14 levels of appeal. We could expect that, in general, those who have easiest access to lawyers, who can pay lawyers' bills most easily, will go to court. It would not matter how many layers of appeal and re-appeal we put within the legislation or what grounds we suggested; there are going to be instances and there will be individuals, there will be corporations, there will be associations, that will say, "This decision is not acceptable; we feel that justice has not been done in this case."
We all know that no matter what systems we set up, we do not please everybody all the time. That is not to say we do not try to make provision within the legal system we set up to try to produce what will be a reasonable level of justice, fairness and good decision-making that would be accepted in a commonsense, practical and reasonable kind of way by most people involved as a pretty good system. That is what we are all after.
There are some matters where what is in balance -- life and death, prison and non-prison and so on -- would cause us to call forth within the regimes we set up around their regulation the greatest of care about the finest of legal points. I support that and this government supports it. Our party has been known to support those kinds of positions in the past well and ably, sometimes in defiance of the majority of public opinion, be that as it may.
When we come to the question of trying to determine the balance of interests under this particular legislative framework between and among landlords and tenants, our experience under the RRRA has been that the first round of decisions produced a result on a level of rents that was X. Those matters that were appealed to the rental appeals board historically and on average -- again this represents nothing more than an average -- produced a rent of X plus 1%. That has been over a period of time and has been with ups and downs around that average.
What that indicates to us is that, on average, the appeals process produced something that was not dramatically different from the original decision. Now that was with one legislative framework, the RRRA. While we certainly objected to the results that were produced under the RRRA, we do not hold either the people who were employed as rent review officers -- and are still employed as rent review officers under that framework -- or the people involved in judging appeals at the level of the rent appeal board to be the least bit responsible for it. The dissatisfaction felt by large numbers of tenants about the decisions that were made related directly to the framework that was being administered. Their dissatisfaction was in no way mitigated and continues to be in no way mitigated by the existence of the appeals board.
Our experience has been that the appeals board, working away in a much-delayed framework that has caused much grief, confusion and anxiety for the people involved -- particularly for tenants, because it is they who certainly feel its effects in the greatest numbers -- working away to the best of its collective ability, produced a result that was not significantly different from the original decision.
Were that to be the case again with this legislation -- I very much expect it would be because there are even fewer items to be considered and weighed when we get to the level of rents and the calculation of rents above guideline in this legislation than in the RRRA -- I would expect that we would again see very little variation. Where we go to the trouble, effort, energy and devotion of resources and enormous waste of time from the point of view of the parties involved, we would again see a result that was not terribly different from the first-order decisions.
That being the case, I do not see good cause to provide through this legislation all the delay and extra cost that would be involved to add an appeals board to a framework which, after all, is going to provide hearings on a much more extensive basis than the RRRA. We feel the provisions of the legislation now under consideration are such that there will be easier decision-making and an easier understanding of the reasons for decision-making, so there can be a much speedier and therefore more effective process from the point of view of all involved than under the RRRA. To add an appeals board to that is not going to benefit people involved in most cases to any significant extent.
There will be appeals to the court. There always are appeals to the court. There will be with this legislation. They will be of a limited nature, but I point out to members of the opposition that we have deliberately entered in this act the suggestions of a wide range of people who have made comment on the legislation. We have put forward a proposal that provides for internal review of the first-round decision where it is the judgement of the chief rent officer that a mistake has been made in the decision, and we will still, I am sure, find that cases are taken to court, and again, most of them will be taken to court by a landlord, as they were in the past, even with the appeals board. We are not going to design legislation on this question or indeed on almost any question that will not be taken to court.
We feel that because the provisions of this bill have a great deal more transparency and are a great deal easier to understand in their application, there will be a much higher level of consumer satisfaction, and in that group of consumers I count both landlords and tenants. I do not believe that adding an appeals board process to this legislative framework will increase that level of consumer satisfaction, nor do I believe it will contribute in any real sense to a greater sense of justice being done or fairness being provided. I think this legislation offers mechanisms to all those involved that will provide an understandable and fair process.
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Ms Poole: I have just heard one of the most bizarre comments we have endured during this entire process, and we have certainly heard some strange ones. The minister has said -- I cannot believe she said it, but she said it not once but several times -- that on average the appeals board produced something that was not dramatically different from the original, and therefore that proves the appeals board was not necessary. Using this somewhat strange logic, it means that if on the one hand a landlord had a rent appeal where his amount was reduced by 10%, and we had a second appeal where the tenant had his rent increased by 10%, therefore they cancel each other out, so justice is done. The world does not work this way. We are talking about justice and equity in individual scenarios.
What is absolutely incredible is that everybody except this minister and her government has said they want an appeal process in this legislation. The Tenant Advocacy Group has said it, the Federation of Metro Tenants' Associations has said it, the Federation of Ottawa-Carleton Tenants Associations has said it, the Fair Rental Policy Organization of Ontario has said it, the Association for Furthering Ontario's Rental Development group has said it, individual tenants and landlords have said it, and the opposition has said it. I am sure members of the government opposite may even have said it in private and unbeknownst to the minister. But I can tell you that the minister is the only person I have heard express the viewpoint that there is no need for an appeal in this legislation.
Hon Ms Gigantes: No, that is not accurate.
Ms Poole: Perhaps the minister could give us examples of other people who have said there is no need to have an appeal through this legislation.
Hon Ms Gigantes: The former minister.
Ms Poole: I think I said the minister and this government are the only ones, and I believe the former minister was part of this government, so I am not sure I count that as being a wide consensus across the province that we do not need an appeals board.
The minister has also used the fact I cited in my comments, based on the brief from the Rent Review Hearings Board, that even when there was an appeal people still took cases to court. This is true. Nobody has ever denied that. The difference is in the number of people who will take cases to court. It is an extremely expensive proposition. Not that many people took cases to court under the RRRA because there was an appeals mechanism.
Under this legislation, where you do not have that appeals mechanism, the number of cases going through the courts is going to increase. I think it is downright irresponsible in a situation where we have the courts backlogged and where we have significant problems in the administration of justice because those courts are backlogged. To create legislation that is going to increase that backlog, the same as their Sunday shopping legislation where they said, "Let the OMB deal with our problems; let's increase the backlog there to even more gargantuan proportions," I think is downright irresponsible. The one who is going to pay is the little guy who cannot afford to go to court, whether it be the tenant or whether it be the small landlord. They are the losers in this proposition.
The minister has said that if this appeals board had proved itself to be a useful tool over the past few years, then of course they would have adopted it. My friends, including you, Mr Chair, my dearest of friends, I can tell you that there are many tenants and landlords in this province who are very grateful we had an appeals board and who thought it was a very efficient tool. I think it is a sad day for the people of this province when a government uses such specious arguments that hold absolutely no weight and no merit as the basis for denying what I think is a basic democratic right.
Mr Abel: I will be very brief. I do not believe the appeals board is necessary. I would like to make a comparison and perhaps it will justify my reasons why. I look to the Ontario Labour Relations Act. In there it makes reference to everybody having the right to arbitration. It also outlines the rights of an arbitrator or his jurisdiction. In there it is outlined that arbitrators, whether a single adjudicator or a three-party tribunal, have a much broader scope of jurisdiction than that of a judge. When they make a decision based on the information given to them, that decision cannot be appealed unless they go beyond their scope of jurisdiction or if there is an error in law.
The same applies here, so it is nothing new, nothing unique. That particular type of system has worked well since, I believe, 1975 -- it may have been before that -- when this process came in. I have been involved for the last 12 years with arbitrations and contract negotiations and I have never heard of anybody being unhappy with that setup. It seems to have worked well. I strongly believe the same type of system will work equally as well under the new proposed law.
Ms Poole: A very brief response: Mr Abel and I have a very different perspective on this.
Mr Abel: It would not be the first time.
Ms Poole: Nor the last.
Mr Chair, could I call for the vote and a 20-minute recess and a recorded vote?
Hon Ms Gigantes: I think there are some other people who wish to speak.
The Chair: I do not have anyone else on the list.
Mr Mammoliti: I would love to speak on this.
Interjections.
Ms Poole: I thought I was the last speaker.
The Chair: We will adjourn until 10 o'clock tomorrow morning.
The committee adjourned at 1703.