Report continued from volume A.
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REGULATED HEALTH PROFESSIONS AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT LA LOI SUR LES PROFESSIONS DE LA SANTÉ RÉGLEMENTÉES
Mrs Grier moved third reading of Bill 100, An Act to amend the Regulated Health Professions Act, 1991 / Projet de loi 100, Loi modifiant la Loi de 1991 sur les professions de la santé réglementées.
Hon Ruth Grier (Minister of Health): Bill 100 is an amendment to the Regulated Health Professions Act. It is an amendment that deals with the issue of sexual abuse of patients by health professionals. With third reading and proclamation of this bill, a total of 24 self-regulating health professions in Ontario will be required to deal in a consistent way with patient allegations of sexual abuse and misconduct.
With the passage of this legislation, we will be in a position to proclaim the Regulated Health Professions Act, which covers 24 regulated health professions and creates a total of 21 professional regulatory bodies.
This legislation is ground-breaking in that it brings together for the first time the regulations for a large number of professions. It includes new professional bodies for a number of professions, including midwifery. As I have noted with enthusiasm elsewhere, commencing in January 1994, the women of Ontario will have a choice of midwifery care as the primary health care for a normal pregnancy and childbirth and post-partum period.
There are other choices and very important aspects of the Regulated Health Professions Act, and they include greater public choice generally in the selection and provision of health services; more accountability on the part of the professional colleges, which are self-regulatory governing bodies; more public participation on the college councils; and much greater sensitivity and respect for consumers, which is a fundamental principle written into the RHPA legislation.
It is very important that as we proclaim that piece of legislation we also make it very clear that in Ontario sexual abuse of patients by professionals is not tolerated. That is what Bill 100 will do.
The Acting Speaker (Ms Margaret H. Harrington): Order. Excuse me. I would ask the members to please carry on conversations elsewhere. I would like to be able to hear the minister.
Hon Mrs Grier: I regret, quite frankly, that there isn't a greater level of interest in this piece of legislation, which has had a great deal of discussion and which has had, before the standing committee over the last two or three weeks, countless members of the public as well as the professions come in to express their interest and their determination that we proceed with this kind of legislation.
When the government tabled Bill 100 a little more than a year ago, we set the goal of having this law, the first such law of its kind in Canada, in place by the end of 1993. With passage today, we will achieve that goal.
We are setting a benchmark for jurisdictions around the world. This is a tough piece of legislation, but it's a fair law and a workable law. It serves the public interest and the public's right to health care that is proper, not damaging.
Just as nowhere else have so many health professions been brought together under one law, as they will be under the Regulated Health Professions Act, so nowhere else have so many health professions been dealt with as severely for the sexual abuse they inflict on their patients as they will be in Ontario.
There have been some who say that with this legislation we are moving too quickly. There are very many others who say that it is time, in fact it is long over time, that we put this piece of legislation in place. For those who have made complaints and who have suffered as a result of actions by professionals, we simply cannot move too quickly to address this issue.
With the passing of Bill 100, health professionals in Ontario are being put on notice that if they abuse their relationship of trust with a patient, the government and their professional college will invoke serious consequences. Sexual abuse of patients by health professionals is completely unacceptable, and Bill 100 makes it clear that it will not be tolerated in Ontario.
The committee heard from a number of survivors of sexual abuse by health professionals and what it heard was both alarming and disturbing. Abuse survivors related experiences that were traumatic and devastating. The committee heard repeatedly from survivors who said that nobody had believed their complaints, that sometimes they began to doubt themselves as they repeated their tales to therapist after therapist. They turned from therapist to therapist because they were not believed, and their partners and their families sometimes may not have believed them, and in some cases even chose to believe the abusing health providers when the providers denied the charges that were being made against them. The survivors felt that the college complaints process often only made matters worse.
Their stories and the likelihood that there are thousands of other stories yet untold demand that we act quickly to have effective safeguards enshrined in legislation. With this law, and specifically with the mandatory reporting requirement in it, we are saying that we believe those who say they were abused.
I want to highlight some of the key areas in the bill.
The act provides for one level of sexual offence called "sexual abuse." That covers sexual relations, touching of a sexual nature, and behaviour or remarks of a sexual nature. The act clarifies that touching, behaviour and remarks that are of a clinical nature appropriate to the service provided do not constitute sexual abuse. That was one of the many changes that were made in the legislation as a result of the consultations that took place over this summer and also during the hearings before the social development committee.
The penalty for certain acts of sexual abuse, such as intercourse, is the revocation of a professional's certificate of registration for a minimum period of five years and a fine of up to $35,000. For other acts of sexual abuse, the penalties range from a reprimand to revocation of a certificate of registration and a possible fine.
The bill also requires that any regulated health professional who has reasonable grounds for believing that a colleague has committed a sexual abuse must report it to the appropriate college. Bill 100 makes failure to report a provincial offence. It's vital to stress that the mere reporting of an incident is not tantamount to an assumption of the health professional's guilt. Bill 100 provides for a thorough investigation that must be undertaken by the appropriate professional college to determine if there is enough evidence to proceed to a hearing.
I want to make it clear that while we insist that all sexual abuse, whether it be sexual relations or inappropriate touching or words or behaviour of a sexual nature, must be reported, we believe there should be some flexibility as to how the report is used and how the alleged abuser is dealt with. The standing committee struggled with this issue of flexibility around instances of complaints or reports regarding remarks or behaviour of a sexual nature. There was debate around the provision that came to be known as assessment, remediation and enforcement, and many of the people who presented before the committee addressed this particular issue.
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The Acting Speaker: Order, please. I find there are too many conversations.
Hon Mrs Grier: I believe the provision that we now have in the legislation will serve the public interest. It will be up to the colleges, and I want to make this very clear, to make the necessary regulations to take up this new power. It's a new power of remediation in the case of an offence. While colleges are not required to take up the power, it is certainly my hope that they will. The College of Physicians and Surgeons of Ontario, in its submission to the committee, asked us for a workable solution to this issue. We feel that we have achieved that. I want to thank all of the members of the committee and my colleagues in opposition for working around many of the issues that were addressed during the hearings and in helping us to come to solutions to those issues.
This particular provision is a tool that a college may use at its discretion for dealing with a complaint of sexual abuse. In instances of complaints or reports regarding remarks or behaviour of a sexual nature, a college may instruct its quality assurance committee to order a psychological or other assessment of the professional. After receiving the report, the quality assurance committee may require the member to get further education, therapy or counselling.
The act also gives a college the ability to enforce whatever course of action the quality assurance committee stipulates. This provision will enable colleges to take action in instances where the member could not be brought before the discipline committee; perhaps the patient's name is unrecorded or the evidence is insufficient to enable the case to go to a discipline committee.
I want to emphasize how important it is that the quality assurance committee has the power to enforce the course of action it recommends for the member. Under current laws, it does not have this power and so there has been nothing to stop a member from saying, "Thanks, but no thanks" to the advice given by the quality assurance committee.
The college's quality assurance committee also deals with members who have been accused of being incompetent, whose knowledge, skills or judgement is seen as unsatisfactory. The same powers of enforcement will apply to the committee's recommended course of corrective action for those members.
Bill 100 also requires a professional college that finds a member guilty of sexual abuse to provide the survivor with financial assistance for therapy and counselling. The maximum amount provided will be in the $10,000 range. Survivors will be free to choose the type of therapy that best meets their needs, regardless of whether or not the therapist is covered by OHIP.
In the past, survivors of sexual abuse have often failed to come forward because they've been intimidated by the professional colleges' disciplinary process. In the course of our consultations, survivors noted that they had virtually no input into how the prosecutor presented the evidence of abuse and that they did not have a voice at the hearing. While they were excluded from the hearing, the accused professional was allowed to be present throughout. The survivors believed, and we support them, that this is quite simply unfair. We recognize that these conditions simply intensified the complainants' feelings of powerlessness.
Bill 100 has been amended to strengthen survivors' rights in this regard. The bill requires the defence at a disciplinary proceeding to provide at least 10 days' notice before the hearing of any expert evidence that it intends to introduce. This provision will allow complainants to prepare an adequate defence and seek advice when required.
Bill 100 also gives college disciplinary committees the power to grant non-party status to complainants whose good character, proper conduct or competence is in question or whose psychiatric history is introduced into evidence. Non-party status will also be extended to groups that can help the discipline committee in its deliberations, with participation ranging from written submissions to cross-examining witnesses.
During the summer, we had a number of sessions with the colleges, with the associations and with the survivors of sexual abuse. These provided us with a great deal of information and constructive advice as to how we could improve this legislation. I was very pleased that both of the critics in the official opposition parties participated and lent us their assistance during those consultations.
I want to again make mention to my colleagues, my parliamentary assistants who were present during the hearings before the social development committee, that this was not an easy piece of legislation to deal with. The testimony was emotional, the issues were difficult and I think that in crafting this piece of legislation we have collectively and constructively attempted to deal with the issues and provide a balance that will serve well the people of this province and is in the public interest of the people of this province.
I want to remind the members that the bill will be subject to continuing evolution since it will be monitored by the Health Professions Regulatory Advisory Council. The council has the statutory obligation to report to the Minister of Health on Bill 100's overall effectiveness within five years after the legislation comes into effect. But I intend to formally ask the council to report back by July 1994 at the latest so that we can have its advice as to how the bill is dealing with the issues and is proceeding.
With this legislation we have an opportunity in this province to create an environment where everyone feels secure in their right not to be subjected to sexual abuse and, if they are, to the knowledge that they have effective recourse.
I would ask the members to give it speedy third reading so that it will be law by the new year, because with its passage and with the proclamation of the Regulated Health Professions Act we enter a new era in this province, an era when all of those professions have the right of self-regulation but, with it, the responsibility to ensure that they exercise that right in the best interests of the public and, particularly, in the best interests of their patients.
I thank all of those who have participated this far, particularly my parliamentary assistant the member for Simcoe Centre, who has led the discussions through the committee and who has been part of this since its first introduction.
I hope that the debate tonight will lead to passage and a conclusion of some of these issues.
The Acting Speaker: Questions and/or comments? Seeing none, are there other members who wish to debate?
Mrs Barbara Sullivan (Halton Centre): Bill 100 is a bill that deals with an important ethical issue, and that ethical issue is the sexual abuse of patients by health care professionals. It deals with the process of reporting of abuse and the complaints and discipline process within each of the health professions, and it deals with the establishment of a fund to help those who have been abused to receive appropriate treatment.
We have spoken in second reading on the genesis of this bill, and I won't speak again on that history.
I've spoken in this House about the support of all three parties for legislation that is workable, that will assist in solving a problem that doesn't affect a large number of patients but affects those people profoundly.
We've commended the minister for providing money for facilitated group discussions involving the colleges, the professional associations and their support groups, along with those who have been abused by health care professionals. We understand that those discussions bore fruit and created greater understanding between professionals and those who need support.
We believe that any legislation in this area must be workable, that it must be able to withstand challenges in the court. This bill affects not only doctors but every profession under the new Regulated Health Professions Act, but the initiative, I believe, for this legislation initially came from the College of Physicians and Surgeons of Ontario.
One of the biggest problems that the college has today is that its decisions in sexual assault cases are frequently and consistently overturned by the courts. What we don't want is a piece of legislation that will provide further opportunity for the courts to second-guess and throw out the disciplinary decisions of any college in a sexual abuse case.
A badly crafted law would ensure that that would happen, and if there is any conflict between administrative law procedures and criminal sanctions without criminal law remedies, you can bet this law won't stand up past its first case.
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Legislators, I believe, have an obligation to examine those questions with the added insight of those who appear before us in public hearings. I am concerned that on that issue we have not had a real opportunity to examine that particular threat to the value of this bill. One of the things I'm deeply concerned about is that in the end the winner may not be the colleges and it may not be the person who was abused; it may in fact be the abuser.
I refer back to some old clippings. Here's one from January 28, 1991, "4 Key Rulings Involving MDs Overruled: Medical Body to Appeal Decision in Case Concerning Abuse of 3-year-old." Here's another headline, May 13, 1993, a little closer in time, "Courts Give Doctors Guilty of Sex Abuse Second Chance."
Those are the kinds of issues that led to this bill in the first place. The process must be one that ensures that if the disciplinary body has indicated that a health care professional requires discipline, is in fact found guilty, those decisions cannot be overruled in a vague and, in my personal view, insensitive manner by the courts.
The second area that the bill must be workable in is in the aftermath of the bill involving health care professionals. One of the things that our committee was warned about on several occasions is that this kind of legislation may well result in what is known as "doctor chill," where a physician who is worried about a sexual complaint may refuse to do a pelvic examination and may send his patient to a hospital instead, involving two aspects here. One of them is (a) the provision of care and the other is (b) additional cost to the health care system.
We hope that in a properly crafted bill those issues will not become a permanent feature of the system, but I will tell you that on my own recent visit to my own physician, I was asked if I would prefer to have another staffer in the room, a nurse on that particular occasion, while a cervical screening was being done -- once again an addition to the cost, once again a potential interference in the personal relationship between a patient and the provider of health care services. I hope those things that have been raised will not happen and that the bill will in fact be workable in those areas.
Throughout this process we hoped that the discussion and the debate would lead to a balance that would create legislation that would be respected by all health care professionals and that would work -- would work for the college, would work for patients and would work for every single provider of health care.
We thought that the process we were going through was leading to a balance and that we would end up with legislation that all parties could support. Then on Tuesday we found that there was a doublecross in the system, and I speak about this doublecross in a way, frankly, that I find very regrettable.
At noon on Tuesday all proposed amendments to this bill were to be tabled with the clerk of the committee under the rules. This bill was under a time allocation and the clause-by-clause consideration of the bill was to begin in committee at 3:30 that afternoon. Because of a bomb scare in this place, clause-by-clause consideration, as you know, was postponed until the next day.
No one expected any surprise in the amendments that were put before the committee, but we all got one, because within the government amendments was buried a new government amendment that no one had seen or discussed. It had not been raised in committee at any point in the discussion by any individuals or groups. The Ministry of Health had not given signals in written or oral form that it intended to introduce this amendment. In other amendments that the government put forward, it had done so and there was opportunity for debate in committee. We thought, frankly, that was a healthy and important part of this process.
But this amendment was news to everyone. The last drafting of that section that we looked at was substantially different than what came before committee on Wednesday afternoon in clause-by-clause decision. By the very thinnest margin the amendment was ruled to be in order, and I asked for that ruling, and when I say by the thinnest of margins, it was ruled to be in order because it was on the borderline of whether in fact the amendment was included in the scope of the bill.
Today urgent faxes have been coming to my office, to the minister's office, to the office of the Premier with respect to the inclusion of that particular amendment.
I must read some of this information into the record because I believe that the government's action on that last day has in fact changed the nature of how we have to deal with this bill on third reading, and I will tell you that I deeply, deeply regret that.
I want to read some of the material that has come to my office today. The Ad Hoc Coalition of Regulated Healthcare Associations on Bill 100, in a release which was sent to the media on December 13, today, and this is a quote, "today expressed outrage at the NDP government's last-minute amendments to the bill, subsection 95(1), relating to quality assurance that denied practitioners' basic rights of a fair hearing."
In a later part of the release it says:
"'Amendments to the RHPA along the lines of the 95(1) amendments have twice previously been floated and then rejected through the consultation process with health care associations and the colleges,' said Dr Ruth Berman, co-chair of the coalition. 'To sneak the amendments through in this way and at this time is unbelievable high-handedness and arbitrariness that makes a mockery of the "full and open consultation" process that was supposed to be introduced by the RHPA and attend Bill 100.'"
That's the first one.
The Opticians Association of Canada writes as follows, and this is a quote from one paragraph in their letter of today. This letter, by the way, was addressed to the Premier.
"With regards to the substance of the amendment, we believe that it alters the focus of quality assurance from a consensual and positive effort to maintain and improve the quality of care to a potentially punitive process. The quality assurance process lacks the basic procedural protections present in the case of complaints, discipline and incapacity proceedings. Because of this, the amendment destroys the balance and fairness built into Bill 43."
The association goes on to say, "To make a change as important and basic as this without consulting the stakeholders destroys the process that gave Bill 43 its validity." The association goes on to ask the Premier, "May we have your assurance that this amendment will not go forward when third reading takes place later today?"
The Denturist Association of Ontario is also concerned. They speak about the amendment as follows.
"This amendment is not limited to issues of sexual misconduct but applies to every kind of quality assurance. Therefore, we do not understand why the amendment is being introduced into Bill 100, whose focus is solely on sexual misconduct issues."
They go on to say: "Our greatest concern with the amendment is that it seems to undermine the supportive and constructive approach which is the intent of quality assurance. This amendment outlines a very punitive approach to maintaining quality which encourages individuals to hide or deny problems rather than addressing them."
The Ontario Medical Association president, Dr Tom Dickson, writes to the Minister of Health and indicates that it causes him great sorrow because of the serious long-term consequences it will have on quality assurance in this province. He talks about the amendment as "a secretive move...slipped in at the last moment, and there was no notification to any of the associations or any of the other colleges."
He says, and I'd like to quote an entire paragraph here:
"It has broken the consensus-building process which has been established over many years of the health professions review and which has never before been abrogated. It is a bitter conclusion to a truly consultative process. Furthermore, our college, in its communication with the membership, did not inform the membership that this stringent method of quality assurance would be brought in.
"The content of this is furthermore very troublesome in that it destroys the balance which was carefully constructed during the entire legislative process between quality assurance and punitive measures. We supported a strict regime when it came to complaints and discipline, but in return for that, the balance was constructive in that the quality assurance programs would not be punitive and would be supportive of the professionals involved.
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"We believe that this was benefiting the tenets of modern quality assurance which are supported in the academic literature. At the last moment to have this carefully constructed balance seriously disrupted is a shocking state of affairs and will have serious long-term ramifications for quality assurance in this province. I know of your concerns in this area" -- the president writes to the Minister of Health -- "and cannot believe that you really would have intended to have such a destructive turn of events at the final part of this process.
"We were promised an amendment which addressed remediation. This clearly totally misses the mark and disorders other affairs in a distressing way."
The Ontario Physiotherapy Association writes:
"The approach embodied in that amendment had been rejected during the Health Professions Legislation Review and had been rejected again during committee hearings on the Regulated Health Professions Act. Furthermore, the amendment has little if anything to do with the stated intention of Bill 100. This amendment will fundamentally change the concept of quality assurance for all health professions and will have major charter and due process implications.
"We also question" -- they say later -- "whether this lack of consultation and last-minute change will become the norm in dealing with amendments to the Regulated Health Professions Act in the future. This is particularly concerning when we believed that the process would be more open and consultative than it had been in the past, not less.
"The members of the Ontario Physiotherapy Association have concerns that this bill will affect the efficacy and integrity of health care delivery in Ontario. The amendments to section 95(1) have served only to make the situation worse."
That's not all. The Vision Council of Canada says, "We take the strongest exception to the inclusion of these powers on both process and substantive grounds."
They suggest to the minister:
"If you continue to believe that there is a need for such an amendment, it should be considered by the Health Professions Regulatory Advisory Council, and that all colleges, professional associations and others be given an opportunity to speak to its negative impact on the RHPA initiative to maintain and enhance competence and the quality of care. To allow this amendment to come into effect with the remainder of the act on January 1, 1994, would in our view be a grave error."
The Ontario Association of Medical Radiation Technologists also writes. Mr Robin Hesler, executive director, says, "I am writing on behalf of the 5,000 members of this association to convey to you our surprise and disdain concerning the unconsulted inclusion of the government's proposed amendments to subsection 95(1) of Bill 100."
He goes on to say:
"This hasty action makes a mockery out of the consultative process which has been stated by your government as a fundamental principle of doing business. This plugged-in amendment now compromises Bill 100, and that deeply concerns this association.
"During our presentations at the committee hearings, members of the committee expressed concern about the process in terms of information passage to individuals and groups concerned and interested in Bill 100. Government members of the committee asked why there was not more trust in the relationship with your ministry and the regulated professions. Events such as these do not foster a trusting relationship, and we feel, as the victims/survivors have, that we have been violated. This is not in the best interests of health care, nor its efficacy and integrity, nor the fragile economy.
"We ask that this amendment be removed tonight during third reading."
The Ontario Chiropractic Association says: "On Friday the OCA heard of the new proposed amendment to section 22 of Bill 100 which brings a radical change to the nature of quality assurance programs in health care under the Regulated Health Professions Act. This proposed amendment is of such significance that it was considered by the OCA board over the weekend."
I want to underline that they called a special meeting to look at this amendment, by the way, over the weekend. They conclude, following that meeting, "The OCA urges you to withhold the proposed amendment and refer it to the RHPA advisory council for consultation. Failure to do this will, the OCA predicts, lead to quality assurance committees being discredited and failure of a major part of the regulatory process under RHPA."
The solicitors for the College of Dental Hygienists and the College of Massage Therapists of Ontario also wrote today. They indicate that both of those associations "take the strongest exception to the proposed government amendment that arose during clause-by-clause review, and proposes the addition of section 95(2.1) and (2.2)."
They say, "Your amendment removes the assurance," that "quality assurance initiatives...are to be profession-wide, proactive and not punitive," and they indicate that this amendment "puts the quality initiative at risk. By creating the possibility that members might have to undergo psychological or other assessments, therapy or counselling without having first had a full hearing and an opportunity to present their side of the story, your government will make it considerably more difficult for colleges to obtain the cooperation they require, and firmly believe they could expect, under the original provisions. Colleges have the power they need to deal with individuals who are found to be wanting; the quality assurance committee should pass any such problems on to their discipline-or-fitness-to-practise colleagues.
"To allow this amendment to come into effect with the remainder of the act on January 1, 1994, would, in our view, be a grave error," says the College of Dental Hygienists of Ontario and the College of Massage Therapists of Ontario.
The Ontario Society of Occupational Therapists writes that it "has invested considerable efforts to assist in the development of workable legislation that truly captures the intent of Bill 100. We believed our submission and presentation to the standing committee provided an opportunity for discussion and interchange on key points of amendment. Even though our presentation was as late as December 6, 1993, there was no discussion of this new amendment....
"The proposed amendments to 95(1), in our view, add one more defect to what has been a very difficult and flawed process. While we support the objectives of this legislation, we cannot support the legislation as currently proposed and urge you to reconsider this amendment and abandon its inclusion at this time."
The Ontario Psychological Association writes to the minister:
"To slip amendments of this nature and impact into Bill 100 at the last possible moment makes a mockery of the consultative process that the government said it wanted around Bill 100. It also puts a slant on Bill 100 that deeply concerns this association and its members.
"During committee hearings on Bill 100, government members of the committee asked why there wasn't more trust in the relationship between your ministry and the regulated professions. For the answer, you need to need look no further than Bill 100 and the last-minute amendments to 95(1)."
The Ontario Society of Chiropodists, a small health care profession but one which was involved in the consultative process through the RHPA and indeed through Bill 100, writes:
"We oppose the enormous administrative discretion for the college relating to a practitioner's licence, without benefit of an appeal or even a hearing in the first place. We worry about the relationship (if any) between these amendments and the mandatory reporting requirements of Bill 100.
"From a process point of view, we find it very objectionable that amendments rejected twice before, in public, should come forward secretly and be approved. There has never been any notice from the ministry during our so-called 'consultations' on Bill 100 that the ministry intended to resuscitate these amendments. Why was no notice given? Why were the amendments not sent to the advisory council? Why did the ministry consult with the CPSO on these amendments but with no other college or association?
"There has been too much unilateralism and arbitrariness in your ministry's relationships with the health sector since you became minister. These amendments to Bill 100 only illustrate and magnify that trend."
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The Ontario Podiatry Association writes: "The way this amendment was handled also makes a mockery of the consultative process that the RHPA was supposed to introduce. Once again, a side deal has been consummated with one sector of health care that will significantly affect the entire health care system. Bill 100 has been a difficult process for all concerned. We feel that the government's approach to Bill 100 has not been in the interests of health care professions or of the efficacy and integrity of health care delivery in Ontario."
The Ontario Association of Speech-Language Pathologists and Audiologists writes: "This approach carries the very real potential to negatively affect the traditional constructive nature of quality assurance programs. Surprise amendments with the impact of these are clearly out of step with the consultative process the government promised on Bill 100 and we urge that they be withdrawn."
The Ontario Dietetic Association writes: "With the imminent formation of the College of Dietitians of Ontario, members of the ODA are key stakeholders in the outcome of Bill 100 negotiations. With regard to the aforementioned amendments" -- these are the surprise amendments -- "the approach embodied in same was rejected during the Health Professions Legislation Review and again during committee hearings on the Regulated Health Professions Act. The amendments have the potential to fundamentally change the environment for quality assurance measures by professional colleges in Ontario and are not consistent with the stated intent of Bill 100."
The Section on Psychiatry of the Ontario Medical Association, Judith Hamilton, chair of the ad hoc committee responding to Bill 100, and Patrick Conlon, chair of the psychiatric subcommittee, write as follows with respect to the new amendments that were surprisingly added on Tuesday.
"These amendments pertain to the quality assurance committee but bear little relationship to the original intent of Bill 100. These additions were made after the end of the hearings of the committee on social development. The quality assurance issues were not debated at the Bill 100 hearings. Thus, we were unable to address these proposals, to present them to our membership for consultation or to offer a response to the government.
"This lack of appropriate consultation seems to us to be a sharp departure from the government's need for and attempt to achieve cooperation from the professions. Instead, this procedure was authoritarian and arbitrary."
The Ontario Dental Hygienists' Association writes: "We are at a loss to understand why this amendment, given its major and long-term impact, would be brought forward by the government with no notice to health care associations such as ours, thereby depriving us of any opportunity to comment on the amendment."
These concerns are so widespread and so serious that they have to be considered in the way this bill is disposed of. We had determined in our party to support a workable law that would deal in a balanced way with the social and ethical issues surrounding sexual assault of patients by health care professionals.
We are saying to you that unless the minister today indicates to the House today that this new amendment, which came to the committee in a surprise move by the Minister of Health or through the parliamentary assistant, will not be proclaimed with the rest of the Regulated Health Professions Act or at least referred to the advisory committee on the RHPA, we are in an absolutely no-win situation and she is in a no-win situation with respect to Bill 100. We will be forced to vote against that bill unless we have the minister's assurance that this particular amendment will not be proclaimed at the same time as the rest of the bill.
The minister's amendment has destroyed the consultative process. It introduced a new dimension to the bill that wasn't discussed in committee. It also brings back a concept that has been rejected twice before when the Regulated Health Professions Act, a consultative process that took well over 10 years to come to fruition -- this particular issue was rejected twice in that process.
We believe strongly that, at best, the issue must be referred for consideration to the advisory committee on the Regulated Health Professions Act and that the minister should agree and should state in the House today that this section will not be proclaimed with the remainder of the Regulated Health Professions Act on January 1, 1994, less than a couple of weeks away.
Frankly, we feel sick about this. We felt that there had been progress made. We felt that objections and questions and indeed positive inclusions and suggestions that opposition parties were making to the bill would add to the strength of the bill and the strength of the process. We heard from survivors, from their support groups, from professional organizations and from colleges. We listened to what they said and we tried to assist the government in making a balance that would bring forward and put into effect a workable piece of legislation.
We believe that we worked with integrity on this bill. Unfortunately, I'm also left in the position where we believe that the Minister of Health, through this last-minute amendment, has destroyed the integrity of the process.
I want to underline again that our party is committed to a bill that's workable for all professions and for all people who've been abused. While the number of people who have suffered incidents of professional misconduct of a sexual nature may be small, even one violation of trust between a patient and a health care provider is one too many. That's what we thought we were going to overcome with this bill.
I'm asking the minister to provide us with an assurance today that we will be able to move ahead with the legislation in the way and with the concept that we had expected would be put forward, that she will say that either the new surprise amendment to the bill will not be proclaimed on January 1 or that the issue will be referred for consideration to the advisory committee on the Regulated Health Professions Act.
We ask, and I believe that we deserve, nothing less than that from the minister.
Hon Mrs Grier: I want to comment, because the member has made some very grave accusations against me and against the process with respect to this bill, and that disturbs me at this point. I want to deal with them even though I know I only have two minutes and to point out to her that in fact the question of competence was already in Bill 100 and was one about which much was heard during the discussions over the summer and during the hearings before the committee.
The health professionals advisory committee had recommended retention of mandatory reporting for incompetence and incapacity, which was in Bill 100 when it was introduced. During the last 14 months, many of the colleges, many of the survivors, many of their advocates have raised the issue of competence. In the hearings before the committee -- and I was present for only a portion of them -- some of the people whom I heard present were speaking less about sexual abuse than about the competence or lack of competence of the professional who had been dealing with them.
For the member for Halton Centre to say that the question of having some remediation process within the bill had not been raised is I'm afraid inaccurate, because the College of Physicians and Surgeons had raised this in a letter early in December during the beginning of the hearings and had made it part of its presentation before the committee.
I think it's important for members to know what this amendment does to the legislation. It gives the college the power to require some remediation of a professional before he or she has created an act for which he could be disciplined. The college does not have to pass such a regulation. Should a college decide to pass such a regulation, then of course the associations and the members from whom the member opposite has been hearing would be part of the process of developing that regulation before such a regulation could be adopted.
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Mr Jim Wilson (Simcoe West): I want to take these two minutes to correct the minister, if I may, as politely as possible. I say to you, Minister, you weren't there during the Regulated Health Professions Act hearings that were held over a year ago for many, many weeks and hundreds of hours.
We dealt specifically with this issue of quality assurance. We agreed that quality assurance was not the place to put such punitive measures as you've introduced in the last-minute amendment to subsection 95(1). That's why the honourable member for Halton Centre was reading, as I will in my remarks coming up, from a whole series of faxes from colleges and associations that don't want the power. I think in your comments, Madam Minister, you perhaps inadvertently thought that the member for Halton Centre was making these arguments. We, simply as Health critics, will be making the arguments and are making the arguments on behalf of the colleges and associations themselves.
You were not present during most of the hearings with respect to this Bill 100, which is an amendment to the original RHPA. Yes, the CPSO sent us a letter. From that, you could not infer that the surprise amendment was going to come forward. That would be a distortion of the facts.
Simply, you should have seen the shock on my face and that of Mrs Sullivan when we saw this amendment at the very last moment of clause-by-clause. In fact we both asked the Chair to rule whether or not this particular amendment to subsection 95(1) was within the scope of the bill. We had asked the Chair to rule whether or not it was out of order. Unfortunately, we lost that ruling. I think in some of the arguments put forward by the colleges that the honourable member has just read into the record and that I will read into the record, we should have won that ruling. I just want to set the minister straight with respect to the facts surrounding this issue.
Mrs Margaret Marland (Mississauga South): We're placed in a very difficult position as people who are elected to represent the interests of not only our constituents but the people who live in this province who have concerns with some government changes in both regulation and in legislation. I think the concerns that have been well placed on the record this afternoon by Ms Sullivan, the member for Halton Centre, are something that I would hope this government would pay attention to.
Frankly, I just had brought to my attention this morning the concern of the Ontario Dental Hygienists' Association. I guess the point is, for them it has been catch-up, because they've suddenly become aware, as practitioners in the dental health care field, about the impact of this last-minute amendment.
If it's possible for people to come and work in a dental office simply because they're under the supervision of the dentist, regardless of their training, there is no protection whatsoever for the patient. I would hope that this government is interested in protecting patients in all forums of health care in this province. Frankly, dental hygiene has been a practice in dentistry which has required a tremendous commitment on the individual's part for his training at university. Even then, of course, they have to work under the supervision of a doctor of dental surgery. Obviously, for a DDS to be able to hire people off the street without that training and those qualifications does not protect the patients of this province. I have grave concern with it.
Mr Larry O'Connor (Durham-York): This certainly was an enlightening committee we were on. I guess as a person who comes down here to make legislation that is going to improve the life of individuals, I found it very important that we had the opportunity to hear from the individuals who wanted some change, wanted some protection.
We heard from an awful lot of victims. We heard from victims who had come forward and asked, for example, for amendments like this amendment we're having a bit of a discussion on, because the reason we pass legislation is for protection of individuals and this was a protection that was asked for, was called for.
Unfortunately, victims have never felt comfortable in going to a college and saying, "I've got a problem here," and getting the feeling they've been listened to. They never really get that feeling that there is somebody they can turn to. Because they had that sense of nowhere to turn, we heard from victims and we heard from the College of Physicians and Surgeons saying, "We're not sure we have the regulatory power to do what's got to be done here."
There was an amendment that was put forward and it was one that was geared to taking a look at the needs of the victims, the victims of the regulated health professions. It's something, I guess, that none of the colleges want to admit, or other practising physicians, that these things do happen, but unfortunately they do happen. There are victims.
We've got victims that have come down here today to listen to the third reading debate on this and to see this proclaimed because they're here as advocates for all the other victims who never had the strength, the inner strength to come to the committee to make a presentation.
Mrs Sullivan: I find this so frustrating because I believe that neither the minister nor the parliamentary assistant to the minister, in their response to my remarks, understands the issue that's associated with this amendment. This is not a competence issue. Quality assurance in health care is a method that brings together a team of people to constantly assess and evaluate the delivery and process of health care to ensure that there is an improvement in the delivery of health care, to ensure that every patient benefits from an ongoing system of evaluation and monitoring of standards and practices and guidelines and the way treatment is provided, to ensure that health care is provided at the highest possible standards with the greatest efficiency.
This amendment is an amendment with respect to quality assurance. It changes the entire nature of the quality assurance process. It brings into quality assurance a disciplinary factor. The amendment means that a professional about whom a report has been made -- not a complaint, an anonymous report -- will be referred not to the disciplinary committee, not to the standards of practice committee, but in fact to a committee of the college dealing with quality assurance.
There will be no opportunity for that professional to be heard. There is no due process here. The issue is one that the minister must consider extremely seriously. I am asking her to refer this amendment to the health professions advisory committee or to agree in this House today that this section of the bill, the amendments that were put forward in a surprise way, will not be proclaimed.
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Mr Jim Wilson: I appreciate the opportunity to speak for a few minutes on Bill 100, An Act to amend the Regulated Health Professions Act, 1991. As has been pointed out in debate previously, Bill 100 adds provisions to the original Regulated Health Professions Act bill of last year, provisions dealing with the entire issue of sexual abuse by health care professionals.
It's interesting to note in the beginning that the government hasn't yet proclaimed or put into effect the original RHPA, Regulated Health Professions Act. In fact, we're under closure on Bill 100, which is an amendment to a law that is yet to become law, so that both bills, Bill 100 and the RHPA, can be enacted at the same time.
The Ontario PC Party has repeatedly expressed our full commitment to a philosophy of zero tolerance of sexual abuse of patients by doctors and other health professionals. Since the release of the College of Physicians and Surgeons of Ontario's final report on sexual abuse, members of the PC caucus have supported improvements to both the responsiveness of the college's process and services for survivors of sexual abuse. Our commitment to the philosophy of zero tolerance is premised on the seven principles established by the CPSO task force, and those principles are as follows:
Sexual abuse of patients is not acceptable because it inflicts serious harm.
Sexual abuse of a patient is a violation of trust which creates possibly irreparable harm to a patient, who potentially will distrust health professionals in the future, thus hampering his or her recovery.
Sexual abuse by health professionals is a blatant abuse of power.
Tolerance of sexual abuse by health professionals does great damage to the public's perception of health professionals on the whole.
Zero tolerance is the only philosophy consistent with protection of the public, which is the primary task of self-regulating bodies or the health professions colleges.
Zero tolerance also provides a clear standard of acceptable conduct. It clarifies where the appropriate boundaries in a physician-patient relationship are and will result in an awareness of the presence of inappropriate sexual attitudes and behaviour.
The effects of the NDP's imposed time allocation on this bill, Bill 100, are dramatic.
Firstly, individuals and groups making presentations before the standing committee on social development had just 15 minutes to present and respond to questions from committee members.
Secondly, just four days of committee hearings took place on a bill of this importance. The government actually wasted one evening to bring in a closure motion when we could have been studying the bill in detail and hearing from witnesses. We wasted a whole evening bringing in closure, and the effect of that motion was to limit the committee hearings to four days, one day of which dealt with clause-by-clause and didn't have any witnesses before us at all; that would be the Thursday. On the Monday we had a technical briefing from the bureaucrats and the lawyers of the government side, so we didn't hear any witnesses that day either.
Thirdly, amendments to this bill had to be filed with the clerk of the committee just 12 hours after the completion of committee hearings. So we finished committee hearings and, through the night, had to ensure that our amendments were made up, and it was pretty hard to do, given that legislative counsel shouldn't be asked to work all hours of the evening. It was a very difficult process and we were all quite tired. Then to have this bombshell dropped on us with respect to the surprise amendment to subsection 95(1) really does disturb me greatly.
Fourthly, the one-and-a-half-hour period allocated for clause-by-clause combined with 11th-hour NDP amendments, I think, totally ridiculed the so-called importance the NDP has placed on this bill.
All of these problems could have been averted had the government not been in such a rush to pass a piece of what they call good news legislation, and it should have been good news legislation, but the government messed up the process in a way that has to be unprecedented in this place.
In short, the PC Party of Ontario believes that the tactics employed by the NDP to bulldoze this legislation through the legislative process mocks those whom the legislation is designed to protect. Mark my words: There are some provisions in this bill that will actually backfire on survivors of sexual abuse. Time will show that I am correct in my examination and study of parts of this bill.
Most of the bill is good. We support the principle; we will be voting for it on third reading. But there are some time bombs in this legislation that we did not have enough time to sort out in committee because we were under closure and had to be finished by 5 o'clock last Thursday.
I think the 11th-hour amendment process the government had us under really shattered the consensus that had been built up over years in the development of the original Regulated Health Professions Act and, secondly, with Bill 100. There had been a lot of goodwill. None of us could be accused of giving political speeches with respect to this issue. We could be accused perhaps of giving political speeches with respect to the process, but I think the public will judge the remarks of both the Liberal Health critic and my remarks this evening. Fairness would dictate that we were railroaded on this and that the government didn't achieve all of its objectives because of the time process that was placed on the committee hearings and the development of the bill itself.
With the faxes we've received in the last 24 hours from colleges and associations of health care professionals, we know that the consensus, in their own words, has been shattered. What should have been a good news item for the government to report to the public in the Premier's Christmas message is no longer terrific news. It's watered down and it doesn't have the support now, in its entirety, from the very people the government must rely on to implement the legislation, and that's doctors and all other of the 24 regulated health care professions in this province.
The amendment specific to subsection 95(1) relating to quality assurance programs will deny practitioners basic rights of a fair hearing and appeal. This is the crux of our problem.
It authorizes each of the quality assurance committees of the regulatory colleges set up by the Regulated Health Professions Act to impose terms, conditions or limitations on a health practitioner's licence or certificate to practice for up to six months. The practitioner has no right to a hearing nor to an appeal from such a decision.
Terms, conditions or limitations could include revocation of a certificate of registration. That, under the former terminology of the Regulated Health Professions Act, is revocation or pulling of the licence to practice. That's how serious these measures are within the new provision brought in by the government that deals with the quality assurance program.
Quality assurance, as has been pointed out, is a peer process where self-regulating colleges attempt, and actually have been doing a very good job, of making sure that the public receives from each professional the quality of health care expected from the college and from that profession and that professional. To put in punitive measures in that peer process defies logic. That's the point we're trying to make.
Punitive measures, draconian measures, pulling licences to practice does belong, obviously, in this legislation. It belongs in the disciplinary process of the college, where a health care professional is given a number of safeguards of law. There's a six-month limitation on what the college can do with respect to licences and conditions in this quality assurance, but to throw it into a quality assurance setting really just blows apart not only the consensus but the intent of that part of the legislation.
I hope I'm making that clear. It's difficult, I know. It's taken me a couple of years as Health critic to get up to speed on a lot of this stuff. But I hope the public understands that what the government has done is essentially, in a process that wasn't intended to be punitive or to punish but to ensure quality, to throw in some draconian measures, and it's just simply unfair. It's the wrong place in the bill to deal with it.
Yes, I agree the government wanted to have some teeth in the quality assurance programs, but we didn't have the chance to even discuss this with any of the colleges. In fact, there was only one college that wanted this that I know of, and that was the College of Physicians and Surgeons. Without any discussion, the government put forward its amendment at the last minute. It passed and now you've got 23 other colleges and all the associations essentially screaming about this particular amendment.
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One component of the Regulated Health Professions Act enables the 24 colleges regulated under the legislation to establish generic quality assurance programs. The NDP, as I've said, has adopted an amendment that was suggested by the College of Physicians and Surgeons in late October, and without prior notification or consultation the NDP rammed this thing through. We didn't see it at all during the hearings, except at the last hour and a half, which was the clause-by-clause section.
I believe the government has made a huge mistake, which exemplifies its poor judgement, by going with the College of Physicians and Surgeons' suggestion.
I also must say that the tactics utilized by the College of Physicians and Surgeons of Ontario to get this amendment through are deplorable.
My staff and I speak and meet with CPSO representatives frequently and this matter, in its final form, was never brought to our attention. To say that the college's last-minute politicking was inappropriate, I believe, is an understatement. That is fairly strong language from a Health critic of any party.
I have received numerous faxes from professional associations expressing their dismay and outrage with the NDP quality assurance amendment. A coalition of 15 health care associations established in response to Bill 100, representing over 50,000 regulated health professionals, has reacted with anger to the surprise NDP announcement.
I just want to read the title of their press release: "Coalition of Health Care Associations Reacts with Anger Against Surprise Government Amendments." Very, very strong language, given that we were working in an atmosphere of relative harmony and consensus with this legislation.
Dr Ruth Berman, co-chair of the coalition, has said, "To sneak the amendments through in this way and at this time is unbelievable high-handedness and arbitrariness that makes a mockery of the full and open consultation process that was supposed to be introduced by the Regulated Health Professions Act and Bill 100."
Signe Holstein, another coalition co-chair, also says, "We are very concerned about the implications of the 95(1) amendments for the rights of health care practitioners. We doubt very much that the ministry has thought through the Charter of Rights and Freedoms implications and we can't see how the amendments have anything to do with Bill 100, unless the government has a secret agenda."
Dr Tom Dickson, president of the Ontario Medical Association, maintains that the NDP amendment "has broken the consensus-building process which has been established over many years of the health professions review and which has never before been abrogated. It is a bitter conclusion to a truly consultative process."
He goes on to say in a letter to the minister that the amendment "destroys the balance which was carefully constructed during the entire legislative process between quality assurance and punitive measures."
In closing, he describes the process and the content of the bill, "so hastily acted upon and introduced by stealth," as "inappropriate and upsetting."
Dr Robert Chelin, president of the Ontario Podiatry Association, maintains that the amendment "puts a slant on Bill 100 that deeply concerns this association and its members...and the way this amendment was handled also makes a mockery of the consultative process that the RHPA was supposed to introduce." He goes on to say that "the government's approach to Bill 100 has not been in the interests of health care professions or of the efficacy and integrity of health care in Ontario." Very strong language.
Sharyn Joliat, president of the Ontario Dietetic Association, the body representing over 1,900 registered professional dietitians in Ontario, maintains, "The approach embodied...was rejected during the Health Professions Legislation Review, and again during committee hearings on the Regulated Health Professions Act." That was a year ago. "The amendments have the potential to fundamentally change the environment for quality assurance measures by professional colleges in Ontario, and are not consistent with the stated intent of Bill 100."
She goes on to say: "The Ontario Dietetic Association is dismayed by the fact that government amendments were introduced at the latest possible moment. Bill 100 has been a difficult process for all concerned, but this act makes a mockery of the consultative procedures to date, in which the government stated a desire for input by all concerned and for a fair and open process."
William Hogle, executive director of the Ontario Association of Speech-Language Pathologists and Audiologists, maintains, "Surprise amendments with the impact of these are clearly out of step with the consultative process the government promised on Bill 100 and we urge that they be withdrawn."
Dr Warren Nielson, president of the Ontario Psychological Association, says, "The amendment is not germane to the stated intent of Bill 100" and "could fundamentally change the environment for quality assurance in Ontario and have major charter and due process implications."
He goes on to say: "During committee hearings on Bill 100, government members of the committee asked why there wasn't more trust in the relationship between your ministry" -- he was referring to the Ministry of Health because he's writing to the Minister of Health -- "and the regulated professions. For that answer, you need look no further than Bill 100 and the last-minute amendments to 95(1)."
Dr William Watson, president of the Ontario Chiropractic Association, maintains that the amendment is of such significance that it was considered by the Ontario Chiropractic Association board over the weekend.
He goes on to say: "It is a well-established principle everywhere that, if a quality assurance program is to be effective, it must be based upon a model of cooperation and education rather than punishment. Following wide consultation during development of the RHPA, the government of the day, supported by all parties, introduced legislation with a QA program that had an educational focus -- and no punitive elements. The proposed amendment to section 22" -- that's of the original RHPA; it's section 22 of the bill -- "of Bill 100 tramples on that well-conceived consensus."
Beverly Lafoley, president of the Ontario Physiotherapy Association, has also written to the Minister of Health expressing outrage. She questions whether this lack of consultation and last-minute change will become the norm in dealing with amendments to the Regulated Health Professions Act in the future. In other words, the point is well made that this is a dangerous precedent and a dangerous way to go about formulating and passing legislation.
She goes on to say: "Bill 100 has been a difficult process for all concerned. The members of the Ontario Physiotherapy Association have concerns that this bill will affect the efficacy and integrity of health care delivery in Ontario. The amendments to section 95(1) have served only to make the situation worse."
Nancy Gowan, president of the Ontario Society of Occupational Therapists, says:
"Even though our presentation was as late as December 6, 1993" -- just a few days ago -- "there was no discussion of this new amendment. This is particularly concerning when we believed that the process would be more open and consultative than it had been in the past, not less."
All these quotes fly in direct contradiction -- the minister's back in the chamber -- to what the minister said in her two-minute response to the member for Halton Centre's debate. All these quotes are in direct contradiction, so it's not Jim Wilson making this argument. I am reading quotes from the health care professionals themselves. Either the minister's calling them all liars or somebody has misinformed her, and I suggest she become informed in the next few minutes before this bill is voted on.
Stephen Hartman, president of the Ontario Society of Chiropodists, maintains his society opposes "the enormous administrative discretion for the college relating to a practitioner's licence, without benefit of an appeal or even a hearing in the first place." He goes on to say that chiropodists "find it objectionable that amendments rejected twice before in public" -- and that was during the original RHPA discussions of a year ago -- "should come forward secretly and be approved. There has never been any notice from the ministry during our so-called 'consultations' on Bill 100 that the ministry intended to resuscitate these amendments."
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The Ontario Medical Association section on psychiatry claims: "This lack of appropriate consultation is a sharp departure from the government's need for, and attempt to achieve, cooperation from the professions. Instead, this procedure is authoritarian and arbitrary." They go on to ask that their organization and others who will be affected have the opportunity to deliberate on and respond to the amendment and that this part of the bill be delayed.
The Vision Council of Canada, a non-profit organization representing the retail optical industry, has also written to the Premier. Andrea Belanger, executive director, maintains the amendment "destroys the balance and fairness built into Bill 43," which is the number of the original RHPA legislation.
The Vision Council goes on to express concern with the fact that "in certain situations health professionals may be ordered to undergo psychological or other assessments, therapy or counselling without having first had a full hearing and an opportunity to present their side of the story."
The Opticians Association of Canada, I also note, an organization representing 1,700 dispensing opticians in Ontario and Canada, expresses the same concerns in a similar letter to the Premier.
The Ontario Association of Medical Radiation Technologists, representing 5,000 members, also opposes this amendment. The association, in a letter to the Minister of Health, says, "The amendment makes a mockery of the consultative process which has been stated by your government as a fundamental principle of doing business."
My goodness, how many times did we hear that this government was going to be open and consultative? This is living proof -- right now as we speak, history is being made once again -- that the government does not live up to anything in terms of what it meant, or supposedly meant, by being true partners and consultative.
The radiation technologists also go on to say, "This 'plugged-in' amendment now compromises Bill 100 and that deeply concerns this association."
The Denturist Association of Ontario has also written to the Minister of Health expressing concern with the amendment on the ground that it "seems to undermine the supportive and constructive approach which is the intent of quality assurance. The amendment outlines a very punitive approach to maintaining quality which encourages individuals to hide or deny problems rather than addressing them." That's what I mean by the fact that this amendment and other parts of this act may actually backfire and certainly produce the opposite effect to the intent of these sections of the bill.
Linda Berry, government relations coordinator for the Ontario Dental Hygienists' Association, has also expressed concerns with the quality assurance amendment. The association asks "that the amendment be withdrawn and if necessary submitted to the advisory council for consideration and consultation as proposed by the RHPA."
In addition to the health care professionals' associations being opposed to the NDP's surprise amendment dealing with quality assurance, I can assure you that many of the colleges have problems with this amendment also.
Both the College of Dental Hygienists of Ontario and the College of Massage Therapists of Ontario take exception to the amendment. The colleges believe that the amendment gives them powers which are, in their words, "inappropriate." Their solicitor writes and he says, "The powers were added without consultation or even warning, and we are aware of their inclusion and impact almost coincidentally."
He goes on to say in his letter to the Premier:
"By creating the possibility that members might have to undergo psychological or other assessments, therapy or counselling without having first had a full hearing and an opportunity to present their side of the story, your government will make it considerably more difficult for colleges to obtain the cooperation they require, and firmly believed they could expect, under the original provisions. Colleges have the powers they need to deal with individuals who are found to be wanting. The quality assurance committee should pass any such problems on to their discipline-or-fitness-to-practise colleagues.
"Our clients are also concerned that the amendment was made on the request of only one participant in a 10-year multipartite process. To make a change as important and basic as this without consulting even the other colleges destroys the process that gave Bill 43 its validity. We appreciate that the pressure to have the acts proclaimed is great, and we recognize that this pressure limits your ability to consult broadly. Nevertheless, we strongly believe that there is no urgency to this particular change, and its sudden introduction is, we suggest, most inappropriate."
I find it inconceivable that the ministry would consult with the CPSO on the amendment but with no other college or association. With the stroke of a pen, the NDP has alienated some 50,000 health care professionals.
I want to note that Bill 100 impacts on only the self-regulating health professions and is thus only a partial response to sexual abuse by health care professionals. A May 1993 survey of 800 respondents by Inside Canada Research found most Ontario residents believe that politicians, teachers, police and others "in positions of trust and authority" should face the same sexual abuse rules as the 24 self-regulating health professions.
The Progressive Conservative caucus has demonstrated its commitment to a philosophy of zero tolerance in a number of ways. When College of Physicians and Surgeons of Ontario task force chair Marilou McPhedran made a presentation before the standing committee on social development in the summer of 1991 -- I forgot that the RHPA hearings were in 1991; it's two years ago -- during the Regulated Health Professions Act hearings, Marilou McPhedran outlined several ways the proposed legislation could be amended to reflect the theme of zero tolerance. In response to her suggestions, the government brought forward only window-dressing sexual abuse amendments to the original RHPA.
I also want to note that the Liberal and NDP members of the standing committee on social development at that time voted against innovative PC amendments designed to help and protect patients from sexual abuse by health professionals. I and my caucus colleagues and our researcher, Louise Verity, worked very closely with Marilou McPhedran in developing those amendments dealing with sexual abuse back in 1991, when the original RHPA was before us.
Former PC Health critic Ernie Eves, the member for Parry Sound, introduced a private member's resolution in November 1991 that endorsed many of the task force's key recommendations. The resolution included a penalty range for sexual impropriety, a new definition of sexual abuse and support for the establishment of a survivors' compensation fund.
Mr Eves also introduced a private member's bill on June 17, 1991. The bill incorporated the guidelines for sexual contact between doctors and former patients contained in the recommendations of the CPSO task force. In addition, the bill made the penalty provision for sexual abuse mandatory, in keeping with other recommendations of the task force report.
To address problems identified by survivors of sexual abuse and regulated health professions over the course of the hearings on Bill 100, the Ontario PC Party moved amendments to provide for a comprehensive review of this act within three years of proclamation; to set out the general purpose of the measures in the bill designed to combat patient sexual abuse; and to refine the definition of sexual abuse by adding a subsection explaining that "sexual nature" does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.
If I had time, I would explain each of the amendments, but I know the professionals out there and many, many members of the public understand them.
We moved an amendment to ensure that there would be no arbitrary time restriction of the availability of the findings of college discipline committees. We moved an amendment to protect records of patients who have been sexually abused.
I introduced an amendment to dedicate fines collected from health professionals found guilty of sexual abuse to the therapy and counselling programs that are to be set up, a very important amendment, because when this bill was originally sold to the public, the government was very clear -- and I guess, to be fair, it's prior to the introduction of the bill -- and had been very clear for years that if a college fines a doctor who has been convicted of committing sexual abuse -- and we know the bill provides for fines of up to $35,000 -- that $35,000 does not go to help the survivors of sexual abuse, to help the people the doctor may have abused, but it goes to Floyd Laughren, the Treasurer of Ontario. That's abhorrent. That is unfair.
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To be fair, the problem is that it probably had to happen this way all the way along, but the province does not have designated funds for fines. If you're fined for speeding, it goes into general revenues; if you're fining a doctor, in this case for having committed sexual abuse of a patient, it goes into general revenues.
The problem we have is more of a political one in that the NDP, when it was in opposition, consistently told us we were crazy, that we weren't caring, that we didn't care about the victims or the survivors of sexual abuse and that we had to have dedicated funds, that any money from fines had to go into helping the abused patients. We tried to do that. During the original Regulated Health Professions Act committee hearings in 1991, I introduced an amendment, as did Mr Eves through his private member's bill, to ensure that the money levied as fines had to go, whatever way it took, to help survivors.
What we have now in the case of this act, unfortunately, is that the fines go to the government and the colleges then have the additional ability to levy charges against the convicted abuser. In other words, they can collect back the money they've spent for the hearings process, for the investigations etc.
I think what will happen, because it's not an "and" it's an "or," they can fine or levy -- sorry, they can fine and/or levy, I guess is probably most appropriate. I'm a bit mixed up at the moment. What will happen, anyway, is a disincentive to probably fine anyone. It's in there as window dressing in the bill, because the colleges aren't going to fine Dr X $35,000. That's $35,000 less that Dr X has to reimburse the college for all of the expenses it's incurred in bringing Dr X to disciplinary committee -- or to trial, as it were.
If the colleges, particularly some of the smaller ones, are to continue to seek out and punish sexual abusers, their members who commit abuse, they need the money from those convicted of sexual abuse to keep the process going. They need to collect that money. So I don't think anybody's going to get fined under this act, and I think the survivors who appeared before the committee -- and we're finding out there are hundreds of them if not thousands of them in the province -- have been sold a bill of goods with respect to that part of the act. We introduced an amendment to try and straighten that out, but it was defeated.
We also introduced an amendment to permit oral or written impact statements, or both, at the option of the patient, and finally introduced an amendment to exempt treating professionals from mandatory reporting in specific situations. Particularly this latter point -- and it really was the end of the amendments that we tried to introduce in this very short time frame we had, and we worked very, very hard on it; we talked to survivors and we talked to a lot of the professions and to the coalition of professions -- the final amendment with respect to mandatory reporting, I noticed when the minister did her two-minute response to the member for Halton Centre's debate, she concentrated on that, which was not the thrust of the member for Halton Centre's debate.
The member for Halton Centre was quite correctly pointing out, as I have, the anger out there with respect to the last-minute amendment dealing with quality assurance. The minister, once again and with respect, has a long history -- some two decades -- of getting up and obfuscating on the issues. She did it quite remarkably here in a two-minute response. She started talking about mandatory reporting as if we're opposed to mandatory reporting.
What I was opposed to very clearly is that if I were a patient and I go to my psychiatrist -- not that I have one, but if I had one; I might need one after a few years in this place -- but if a patient goes to a psychiatrist or a psychologist and during the course of a treatment wants to tell that professional that he or she has been sexually abused by a health care professional, the mandatory reporting says the psychiatrist must stop and say, "What you've just told me -- I must fill out a report and send it to the abuser's college," whether it be the College of Physicians and Surgeons, dentists, nurses, whatever it might be.
I thought the division of psychiatry at the Ontario Medical Association, in particular, and the Ontario Psychological Association made an extremely good argument that this wasn't effective treatment and that they needed an exemption so that they didn't in a cold way have to stop the patient they're treating from telling them anything and say, "By the way, Big Brother has now kicked in and what you've just told me I've got to report."
It seemed to me we could have come to a better consensus on that, we could have come to a better compromise on that, because to me, that overrides the right of the patient. In my scenario, I'm the patient and I want to tell my physician, "Hey, I understand we have a patient-doctor relationship and that anything I tell you, you don't tell anyone else. In this case, the law says that you must tell someone else about the conversation we've just had."
We thought the compromise might be something like the patient should be told of their rights, told that, "In the course of your treatment, if the issue of sexual abuse comes up" -- and I don't know if this would work or not; we didn't have a chance to discuss it fully to find out -- "I may have to report that." So there should be a warning ahead of time that the treating professional may have to report that.
Secondly, if that comes up because of this new law during the course of your treatment, you have the right to tell me to report that or not. It's your decision. You have control over your own therapy, and that is so important in therapy. That's how people get better, by taking control of their lives. This bill says, at least the talk about the Regulated Health Professions Act was: "Hey, we understand psychiatry. We understand the points made with respect to treatment. However, when it comes to the issue of sexual abuse, we just scrap everything we ever understood about treatment, and you have to mandatorily report this and interrupt the treatment." Where does the trust of the patient in the physician go from here? I don't know. Patients will want to know, if they're smart now: "What's on your hit list, doc? If I tell you about my other problems in life, does that get reported to other Big Brother agencies? What exactly can I tell you, doctor?"
You've got to remember, in this act we've suddenly said that the most heinous crime in society is sexual abuse. What if somebody reports murder or the fact that they beat their wife or the fact that they commit elder abuse? The murder one probably is dealt with in other statutes, but some of these other things that I think are pretty bad out there aren't dealt with and there is no mandatory reporting provision.
My point about those latter comments is, we needed time in committee to discuss this, to find out what is reportable now. What is it? We never had any time to discuss this, and we're passing important legislation. Many witnesses have correctly said that this legislation probably won't even be looked at for another 10 years.
Goodness knows, if we or the Liberals form the next government, we're going to end up spending probably the first two years undoing all the socialism that's been done in the province. The Liberals aren't terribly committed to that right now; they're going to see what's good and what's bad. My party's committed to undoing a lot of what Bob Rae and company have done. So we're going to be pretty busy doing other things, and I can tell you, our minds won't be coming back to the concerns of survivors in a legislative way. We might able to do it through the regulatory process or behind closed doors, but it's not my preferred process because I've criticized the government on many occasions for doing exactly that and not including the public. It's a problem.
None the less, with the problems in the bill, we have to support it. We have to support it and hope that the government in the next few minutes will come to its senses with respect to the section 95 amendment. That would be nice. I can guarantee the government they'd get some good news press out of tonight's debates if they would back down on the section 95 amendment.
Pull it, discuss it, bring it back next year as an amendment to Bill 100, which is an amendment to the RHPA. Let us have some discussion on it. Let's hear from the colleges themselves. Let's hear from the associations. Let's let the government have its good news hit. It's finally done something about the whole issue of sexual abuse by health care professionals, and I congratulate the government for that.
It's an issue that I don't blame previous governments for not dealing with, because I don't think, in all sincerity, the members of the Legislature were really aware and I don't think the public was really aware of the extent of the problem out there. I was absolutely shocked, beginning with the RHPA hearings, monitoring the College of Physicians and Surgeons task force hearings and our own hearings on Bill 100, to learn of the extent of the problem out there.
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I haven't got it now, but I think it was the Ontario Psychological Association that did a survey of its members and something like about a third of them or more -- it was higher than that actually; I can't remember the figure -- had had lustful thoughts about their patients. This was a confidential survey. They pointed out that they found out through that survey that yes, there's a problem, there's a bigger problem looming, perhaps, and that what needs to be done in their case and in the case of everyone else is education, that they're not taught how to deal with the situations they're put in and it's not clear to people what is sexual abuse and the definition, and that's now on the table, or what's appropriate and not appropriate.
We had some people come forward and talk about, for example, that they thought it was very inappropriate that X-ray technicians would disrobe them in one way or another. I can see that being a problem because if you're, say, an X-ray person and you're seeing bodies, one after the other all day, I bet certain parts of the body don't really mean much to you after a while, in terms of, "You see naked bodies all day" is the point they've made to us in meetings. But they need to be educated in how the public expects to be treated by them, and all the professions have said that. The bill's a step forward somewhat in that direction.
I want to just end by saying again we're supportive. The government should clean it up, though. I really wish that the whole fines section had gone another way, that there had been an exemption for some of the professions with respect to mandatory reporting. Certainly this last-minute amendment with respect to quality assurance should be removed and discussed. I think it's only fair. I've never really seen such anger in such a short period of time that this amendment brought forward in people.
I want to, finally, thank all of my colleagues. Over the last two and a half years that we've been dealing with regulated health professions, everyone in my party and I'm sure in other parties has met with their local health care professionals in their ridings and associations. I thank all my colleagues for conveying all that information, and it's a huge amount of information. The health care sector is huge out there and I thank all my colleagues for constantly bringing me up to speed with what the health care professionals in their ridings want and, more importantly, what the public expects from its health care professionals.
Finally, I want to thank the PC caucus researcher, Mrs Louise Verity. When it comes to health care, in our caucus there's Louise, there's my executive assistant, Perry Martin, I have an excellent legislative intern at the moment, Robert Nicol, and there's myself. We're not a big band but I think we do come across effectively, if I may say, and it's a team effort. I thank all of those people because they have worked many, many hours and, I would say, above and beyond the call of duty.
I won't belabour the point nor all the names, but the ministry officials were particularly helpful through this whole process in terms of bringing us up to speed and in terms of allowing us to understand the issue. I thank them for their patience because I'm sure it's frustrating for them when they at times know more than we do about a particular amendment or the bill itself and they have to impart that knowledge to us in a friendly way. I'm sure it's not all that easy to have to deal with politicians, particularly politicians who are really tired. We didn't get a summer, we've been crammed through, we've been on closure and everybody's pretty tired, and it's unfortunate that in that state of mind we have to try and deal with complicated legislation like Bill 100.
I thank all of those people. I thank the minister for bringing the legislation forward and I do hope that she's learned something in tonight's debate that would make the legislation even better.
The Acting Speaker: Are there any questions or comments to the member?
Mrs Marland: I'd like to congratulate the member for Simcoe West on his presentation on Bill 100 this evening. I would like to say that the whole review of our health professions in this province has to be moving health professions forward. The only way that can happen successfully is as long as the patients are protected in every area of their relationship with the health care providers, and certainly part of that has to be the quality assurance.
I think the licensing and regulating of health professions, especially for specific services, is very critical. I think where we have some debate and concern is between what dental hygienists can do in the office of a dentist with a dentist's practice, the dentist being there in person, and what a dental hygienist can do in some other limited areas without a dentist being present. For example, in the public health area certainly dental hygienists have an opportunity to provide services for underprivileged children, and in geriatric and psychiatric institutions where there are no funds obviously to have a dentist on staff it's an opportunity for a dental hygienist to render a service which otherwise those people would not have access to.
But I think where we may have some areas where certain procedures can be done if the dentist has trained that person, frankly, it would be very regressive if that became the case, because we now have moved forward to where we have standards. We know what procedures can be done in certain circumstances because those people are trained and qualified for those procedures and I hope that will continue.
Mr Drummond White (Durham Centre): I wish to take issue with my friends' comments in regard to the therapeutic process. Certainly it's been my practice in the past, as a therapist, as a family counsellor, that when I'm working with people, when these issues arise, when we find out about abuse of some form or another, whether it's child abuse, whether it's physical abuse by a husband of a wife or whether it's sex abuse by a physician or some other medical practitioner, these are things that are important. Their revelation, dealing with them, is not something which is somehow removed from the therapeutic process but rather is an important part of that process.
With this legislation, patients and therapists are given additional powers to ensure that their rights are looked after, that they are not minimalized, that their lives and their experiences are not pushed away into a corner but rather a therapist, a psychiatrist, a social worker, a psychologist who knows how to work with clients would be using this law to empower and enable those people who have been abused in this process.
I think it is something which will strengthen health professions, and of course if it included social workers it would be that much stronger, but still the fact that you have a trusting relationship and the fact that those therapists have to deal with these issues, have to report them, are not contradictory experiences but rather they are experiences of trust and of value for those patients. They are the laws and the regulations that those patients need.
Mrs Sullivan: I want to thank the third-party critic for Health issues for some of his remarks which underline those which we have put on the table and I believe some of them that have underlined the remarks of the Minister of Health in association with this bill.
I also concur with his assessment that the function of quality assurance is quality assurance. It envisages a team approach for ongoing evaluation of health care delivery. It contemplates setting and measuring criteria to ensure that patients receive the highest-quality, most effective care in as cost-efficient a manner as possible.
The quality and competence-to-practise issues are totally separate issues. Any health care professional who abuses patients must be dealt with as part of the disciplinary process, but there must be due process for the professional, and I believe the member underlined those issues.
Just in commenting, I want to go back to a debate that the member participated in in committee on August 17, 1991, where the College of Physicians and Surgeons said that the majority of health professionals and their organizations must be relatively satisfied with the system, that they should not believe their legitimate interests have been ignored, that the system should not discourage professionals from cooperating with their colleges because regulation based on coercion is in the long run likely to be ineffective and expensive.
For any person who's been raped, touched in any offensive way or suffered rude or stupid remarks at the hands of their doctors, their nurses, their physiotherapists or any other health care provider, that person knows this is an important bill. There must be a buy-in, as the College of Physicians and Surgeons itself pointed out, from the professional associations and bodies to ensure that a law is put into place that no patient should be at the risk of sexual abuse, and that when it occurs, the professional should be disciplined.
The Acting Speaker: The member's time has expired. Are there any other members who wish to participate in questions or comments? If not, the member for Simcoe West has two minutes to respond.
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Mr Jim Wilson: I want to thank my colleague the member for Mississauga South for her very thoughtful participation, and also the member for Halton Centre, who again made some very salient points with respect to Bill 100.
The NDP member for Durham Centre didn't make any sense to me at all. I say that in the charity of the season, because I can think of worse things to say. I listened attentively to whatever he said and it missed the mark. It's indicative of some of the debate we've had on this bill.
He's a member of the standing committee that dealt with this. I don't know if the public has the opportunity to watch us during committee, but I want to tell you that it's bloody difficult at times and frustrating to sit there when you've taken the time to meet with the groups and to bring yourself up to speed on behalf of the people of Ontario, and NDP members, with the exception perhaps of a person like the parliamentary assistant carrying the bill, and yourself, Madam Speaker, you're pretty good, and there are a few others, but a lot of them sit there and I think they're just filling the chairs in committee. They don't know what they're voting on, they're whipped on votes, and it doesn't serve democracy very well.
None the less, I appreciate that they're here and trying to participate to the best of their abilities, but they do have to get up to speed on this legislation, because they're each voting. They're responsible to their constituents for the votes they cast and it's an extremely important process. The calibre of debate must improve, and in order to do that, people must bring themselves up to speed.
The Acting Speaker: The minister wishes to wrap up the debate.
Hon Mrs Grier: Let me thank my colleagues for participating in this debate and my colleagues on the government side for not participating to the length that perhaps many of them would have liked in this particular debate. As I indicated in my opening remarks, it is important that we finish so that we can proclaim both this piece of legislation and the RHPA before the end of the year.
I want to thank the member for Simcoe West for his kind comments with respect to his own staff. Let me say to him that he and his staff have made a very constructive contribution to making this a better bill, but I wanted to thank him for his comments about the ministry officials who have worked enormously hard both on this piece of legislation but also with respect to the regulations for RHPA. I really want to commend them for that.
To the member for Simcoe West, who like the member for Halton Centre dwelled on what they called this surprise amendment, I want to take issue and just make a very simple point for those who perhaps are puzzled at the acrimony of this debate at the late stage in this bill.
Under the Regulated Health Professions Act, every college must have a quality assurance committee. If such a committee finds that a professional lacks knowledge, lacks skill, lacks judgement in the performance of his or her profession, the quality assurance committee and the college can require that professional to take a continuing education program in order to improve his or her competence. If the professional says, "No, thank you; I don't wish to do that," there is absolutely nothing the college can do about it.
Under this amendment which we have made to the legislation, the college, if it chooses to do so, can pass a regulation in consultation with its members that puts a limitation on a professional's licence for a maximum of six months in order to force that professional to upgrade his or her performance; in other words, in order to require some remediation of the competence of that professional before he or she does harm to a patient, as opposed to waiting until after the harm has occurred. That is, I believe, in the public interest. That is why we have moved that amendment and that is why we are very proud today to vote on Bill 100.
The Acting Speaker: Minister Grier has moved third reading of Bill 100, An Act to amend the Regulated Health Professions Act, 1991. Is it the pleasure of the House that the motion carry? Carried.
Resolved that the bill do now pass and be entitled as in the motion.
House in committee of the whole.
Hon Brian A. Charlton (Government House Leader): Before we call the first bill before the committee, there are a number of matters which the House leaders have agreed to which I will seek the consent of the committee of the whole to deal with; firstly, that all the amendments to the bill will be read into the record at the time they're moved, but that we have an agreement that we will dispense with the re-reading of those motions when the questions are put.
The Second Deputy Chair (Mr Noble Villeneuve): Is that the pleasure of the House? Agreed.
Hon Mr Charlton: Secondly, Chair, that you will see divisions on each of the opposition motions but that there will simply be voice votes on the government motions.
The Second Deputy Chair: Agreed? Agreed.
Shall all opposition motions be stacked?
Hon Mr Charlton: That's the last point I was going to raise, Chair, that the votes on all of the motions where there is a division will be stacked and deferred until after routine proceedings tomorrow.
The Second Deputy Chair: Agreed? Agreed.
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PUBLIC SERVICE AND LABOUR RELATIONS STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI CONCERNE LA FONCTION PUBLIQUE ET LES RELATIONS DE TRAVAIL
Consideration of Bill 117, An Act to revise the Crown Employees Collective Bargaining Act, to amend the Public Service Act and the Labour Relations Act and to make related amendments to other acts / Projet de loi 117, Loi révisant la Loi sur la négociation collective des employés de la Couronne, modifiant la Loi sur la fonction publique et la Loi sur les relations de travail et apportant des modifications connexes à d'autres lois.
Mr Mike Cooper (Kitchener-Wilmot): I would ask that we have permission, as per the standing orders, for the staff to come on the floor.
The Second Deputy Chair (Mr Noble Villeneuve): Agreed that staff be present? Agreed.
We will now be dealing with any of the amendments to this bill and we would like to know to which sections.
Mr Cooper: I move that clause 1(1)(g) of the bill be struck out and the following substituted:
"(g) a person who regularly provides" --
The Second Deputy Chair: Order, please. I would like the honourable parliamentary assistant to simply list the sections to which the government has amendments so that the opposition would then know what sections to be alerted to where we have amendments.
Mr Cooper: Section 1, section 3, section 4, section 10, section 11; part II.1, sections 21.1 to 21.8; section 22, section 23, section 24, section 26, section 28, section 34, section 35, section 36, section 37, section 38, section 40, section 43, section 46, section 48, section 50, section 51, section 53, section 54, section 58, section 62 and section 67.
The Second Deputy Chair: These will be the government amendments. The official opposition, could we have a list of your amendments, please?
Mrs Elinor Caplan (Oriole): I'll try to put them in the order that I think they're going to go, because we're amending some of the government amendments, so I think the clerks have notice of what we're attempting to do: subsection 21(2) of the government amendment, section 53 of the bill and section 58.
The Second Deputy Chair: I thank the member for Oriole. The Progressive Conservative Party, the member for York Mills.
Mr David Turnbull (York Mills): We have amendments to clause 1(1)(c) of the bill, section 22 of the bill, section 49 of the bill, section 56.1 of the bill, section 56.2 of the bill, subsection 28.20(2) of the bill, section 28.22 of the bill and subsection 28.23(2) of the bill.
The Second Deputy Chair: Would the member for York Mills have an amendment to clause 1(1)(c)?
Mr Turnbull: Yes. I move that clause 1(1)(c) of the bill be amended by adding the following after the word "act" in the fourth line:
"or a person to whom the memorandum of agreement between the Ontario Physicians and Dentists in the Public Service or any predecessor organization in the government of Ontario applies."
The Second Deputy Chair: By previous agreement, the Chair will not repeat the amendment. Would you like to give some explanation to your amendments, the member for York Mills?
Mr Turnbull: The Liberal amendment, I believe, also speaks to this concern of dentists. We believe that this is a more appropriate place to insert this amendment, but it attempts to do the same things.
I have a letter here from the Ontario Physicians and Dentists in the Public Service, and the comment from their association is:
"Under the amendment to the Crown Employees Collective Bargaining Act, the physicians represented by the association are excluded from the act. Further, the legislation appears to have kept intact the framework agreement entered into between the association and the government of Ontario. We are concerned, however, that dentists represented by the association employed in the public service have not been specifically excluded from the application of the provisions of the revised CECBA."
It goes on to read later:
"The fact that such dentists are not specifically excluded from the provisions of the Crown Employees Collective Bargaining Act may create situations where the provisions of the framework agreement and the provisions of the Crown Employees Collective Bargaining Act are in conflict." We seek to remedy that with this amendment.
The Second Deputy Chair: Does the parliamentary assistant have some comments?
Mr Cooper: Yes. We can't be supporting this amendment because what we're trying to do is keep CECBA as close as possible to the Labour Relations Act, and under the Labour Relations Act dentists aren't included.
The Second Deputy Chair: Further comments? The vote, therefore, will be stacked and voted on tomorrow.
The next amendment, I believe, is a government amendment.
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Mr Cooper: I move that clause 1(1)(g) of the bill be struck out and the following substituted:
"(g) a person who regularly provides advice to cabinet, a minister of the crown or a deputy minister on employment-related legislation that directly affect the terms and conditions of employment of employees in the public sector as it is defined in subsection 1(1) of the Pay Equity Act."
The Second Deputy Chair: Does the parliamentary assistant have some further clarification on his amendment? Debate on Mr Cooper's amendment?
Seeing no further debate, is it the pleasure of the House that Mr Cooper's amendment carry? Agreed. The amendment carries.
There are no amendments to section 2. Therefore, is it the pleasure of the House that section 2 be part of the bill? Agreed. Section 2, without amendments, is part of the bill.
We are now moving to a government motion to section 3 of the bill.
Mr Cooper: I move that section 3 of the bill be struck out and the following substituted:
"Subs. 1(4) (Related activities or businesses)
"3(1) The application of subsection 1(4) of the Labour Relations Act with respect to crown employees is subject to the modifications set out in this section.
"Status of employees
"(2) A decision made under subsection 1(4) shall not, directly or indirectly, treat an individual as a crown employee unless he or she is considered to be a crown employee under the Public Service Act."
Basically, it's just to cover what's covered under Bill 169.
The Second Deputy Chair: Further debate?
Is it the pleasure of the House that Mr Cooper's amendment carry? Carried.
Is it the pleasure of the House that section 3, as amended, carry? Agreed.
Government amendment to section 4.
Mr Cooper: I move that subsection 4(10) of the bill be amended by striking out "thirty" in the third line and substituting "twenty."
The Second Deputy Chair: Further clarification or discussion by the parliamentary assistant? Further debate?
Is it the pleasure of the House that Mr Cooper's motion carry? Carried.
Further government amendment to section 4, the parliamentary assistant.
Mr Cooper: I move that subsection 4(14) of the bill be amended by striking out "ten" in the third line and substituting "thirty."
The Second Deputy Chair: Any clarification or comments, parliamentary assistant? Further debate?
Is it the pleasure of the House that Mr Cooper's amendment carry? Agreed.
Shall section 4, as amended, carry? Agreed.
Shall sections 5 through 9, without amendments, carry? Agreed.
We have a government amendment to section 10.
Mr Cooper: I move that subsection 10(2) of the bill be struck out and the following substituted:
"Application
"(2) Section 64 of the Labour Relations Act applies with respect to the following:
"1. A transfer of an undertaking to or from one employer whose employees are crown employees with respect to whom this act applies to or from another employer whose employees are not such crown employees.
"2. A transfer of an undertaking between employers whose employees are crown employees with respect to whom this act applies."
The Second Deputy Chair: Does Mr Cooper have further clarification on his amendment? Further debate?
Is it the pleasure of the House that Mr Cooper's amendment carry? Agreed. The amendment carries.
There's a further government amendment to section 10.
Mr Cooper: I move that subsections 10(5) and (6) of the bill be struck out.
The Second Deputy Chair: Any discussion?
Is it the pleasure of the House that the amendment carry? Carried.
Is it the pleasure of the House that section 10, as amended, carry? Carried.
We have a government amendment to section 11.
Mr Cooper: I move that section 11 of the bill be struck out and the following substituted:
"s. 73.1 (Use of bargaining unit employees)
"11(1) The application of section 73.1 of the Labour Relations Act with respect to crown employees is subject to the modifications set out in this section.
"Exception, essential services agreement
"(2) Subsection 73.1(4) of the Labour Relations Act does not apply with respect to crown employees who are providing only essential services or emergency services under an essential services agreement made under part III.
"Exception re prohibition
"(3) Subsection 73.1(8) of the Labour Relations Act does not apply with respect to a person,
"(a) who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations; and
"(b) who refuses to perform work that is necessary to enable the employer to provide essential services in accordance with an essential services agreement,
"to the extent that the person refuses to perform the work that is necessary to enable the employer to provide the essential services."
The Second Deputy Chair: Further debate?
Is it the pleasure of the House that Mr Cooper's amendment carry? Carried.
Shall section 11 of the bill, as amended, carry? Carried.
Shall sections 12 through 20, without amendments, carry? Carried.
We have a new section which will be known as 21.1. Section 21 therefore goes without amendments.
Is it the pleasure of the House that section 21, without amendments, carry?
All those in favour please say "aye."
All those opposed please say "nay."
In my opinion, the ayes have it.
Mrs Caplan: The question that I have is, we've placed amendments to section 21.1.
The Second Deputy Chair: We will now be dealing with 21.1 right at this present time.
Mrs Caplan: Fine. I just wanted to make sure we didn't get past it.
The Second Deputy Chair: This is a new section. The parliamentary assistant has some amendments, new section 21.1.
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Mr Cooper: I move that the bill be amended by adding the following part:
"Part II.1
"Collective Bargaining
"Definition
"21.1 In this part, 'designated bargaining unit' means a bargaining unit referred to in subsection 21.2(2) and includes a successor of the bargaining unit.
"Bargaining units established
"21.2(1) The Lieutenant Governor in Council may by order establish seven bargaining units consisting of crown employees who are public servants as defined in the Public Service Act.
"Description
"(2) The description of six of the bargaining units is as determined by the Lieutenant Governor in Council.
"Same
"(3) The seventh bargaining units is composed of all crown employees who are public servants who are not included in the other six bargaining units, but shall not include,
"(a) persons who exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations; or
"(b) lawyers and engineers who are employed in their professional capacity.
"Appropriate bargaining unit
"(4) A bargaining unit established under this section is an appropriate bargaining unit for the purposes of the Labour Relations Act until the description of the bargaining unit is altered under that act.
"Restriction
"(5) The description of a bargaining unit established under this section shall not be amended until after a collective agreement is made following the coming into force of this section.
"Same
"(6) No order may be made under subsection (1) after the repeal of the Crown Employees Collective Bargaining Act, being chapter C.50 of the Revised Statutes of Ontario, 1990.
"Orders not regulations
"(7) An order made under subsection (1) is not a regulation within the meaning of the Regulations Act.
"Bargaining agent
"21.3(1) The Lieutenant Governor in Council may designate the Ontario Public Service Employees Union as the bargaining agent for the six bargaining units referred to in subsection 21.2(2).
"Effect of designation
"(2) The Ontario Public Service Employees Union represents the employees in those bargaining units until it ceases, under the Labour Relations Act, to represent them.
"Restriction
"(3) The Ontario Public Service Employees Union continues to represent the employees in those bargaining units until a collective agreement is made following the coming into force of this section.
"Non-application
"(4) Section 61 of the Labour Relations Act (termination of bargaining rights after voluntary recognition) does not apply with respect to the designation of the union.
"Central agreement.
"21.4(1) One collective agreement shall govern the following terms and conditions of the employment of the employees in the designated bargaining units:
"1. Dispute resolution procedures.
"2. Prohibitions against discrimination.
"3. Employment security and mobility.
"4. Pensions.
"5. Long-term disability insurance plans.
"6. Benefits to which all employees in the designated bargaining units are entitled.
"7. With the consent of the parties, wages.
"8. Such other matters as the parties may agree upon.
"Same
"(2) No other collective agreement shall govern the terms and conditions of employment referred to in subsection (1).
"Disagreement
"(3) If the parties are unable to agree about whether a benefit is referred to in paragraph 6 of subsection (1), the benefit shall be the subject of negotiations for the collective agreement referred to in subsection (1).
"Deemed bargaining unit
"(4) The designated bargaining units shall be deemed to be one bargaining unit for the purposes of a collective agreement referred to in subsection (1).
"Same
"(5) The description of the deemed bargaining unit shall not be altered under the Labour Relations Act.
"Same
"(6) The provisions of the Labour Relations Act concerning the establishment and termination of bargaining unit rights do not apply with respect to the deemed bargaining unit.
"Council of trade unions
"(7) The bargaining agents representing the employees in each of the designated bargaining units shall be deemed to be a certified council of trade unions representing those employees for the purposes of a collective agreement referred to in subsection (1).
"Separate agreements
"21.5 The employer and the bargaining agent representing the employees in a designated bargaining unit may enter into a collective agreement respecting matters not referred to in subsection 21.4(1).
"Terms of agreements
"21.6(1) Every collective agreement respecting employees in the designated bargaining units shall be effective on the same date and for a term of the same duration.
"Same
"(2) Unless the parties agree otherwise, a collective agreement shall provide that it is effective for a term of at least two years.
"Lawful strike
"21.7(1) The following conditions must exist for a strike by employees in a designated bargaining unit to be lawful:
"1. The strike must otherwise be lawful under the Labour Relations Act.
"2. A strike by the employees in every other designated bargaining unit that is represented by a bargaining agent must otherwise be lawful under the Labour Relations Act.
"3. Employees in each of those designated bargaining units must begin to strike simultaneously.
"Exception
"(2) Paragraphs 2 and 3 of subsection (1) do not include employees in a designated bargaining unit for which a collective agreement under section 21.4 or 21.5, as the case may be, has been settled.
"Lawful lockout
"(3) The following conditions must exist for a lockout by an employer of employees in a designated bargaining unit to be lawful:
"1. The lockout must otherwise be lawful other the Labour Relations Act.
"2. A lockout of employees in every other designated bargaining unit that is represented by a bargaining agent must otherwise be lawful under the Labour Relations Act.
"3. The lockout of employees in each of those designated bargaining units must begin simultaneously.
"Exception
"(4) Paragraphs 2 and 3 of subsection (3) do not include employees in a designated bargaining unit for which a collective agreement under section 21.4 or 21.5, as the case may be, has been settled.
"Working conditions may not be altered
"(5) For the purposes of subsection 81(1) of the Labour Relations Act, clause 81(1)(a) shall be deemed to refer to the release of a report or a notice, as the case may be, with respect to every designated bargaining unit that is represented by a bargaining agent.
"First-contract arbitration
"21.8 Section 41 of the Labour Relations Act does not apply with respect to the six bargaining units referred to in subsection 21.2(2) or the deemed bargaining unit under section 21.4."
The Second Deputy Chair: Mr Cooper has moved a new section, which will be known as 21.1 to 21.8. We shall deal with this new section and then deal with amendments thereto.
Further debate?
Mr Turnbull: There's no doubt about it. This is a very flawed bill which we have a great deal of difficulty with. This whole section we have problems with, but this particular amendment does indeed try to make a very flawed piece of legislation a little better, and to that extent we will agree that this is worthwhile within the context of a bill that we don't agree with.
The Second Deputy Chair: Further debate?
Is it the pleasure of the House that new sections 21.1 to 21.8 proceed as moved by the parliamentary assistant? Agreed? Agreed.
We shall now move to amendments thereto.
Mrs Caplan: The section which has been added, section 21, I'd like to amend as follows, and I have several amendments. If I could place each one in order and ask that they be voted on and then proceed with a second amendment, I would appreciate that, Mr Speaker.
The Second Deputy Chair: We would like the member to do them one at a time and we'll deal with them.
Mrs Caplan: Right. Subsection 21.2(3) of the government amendment:
I move that subsection 21.2(3) of the bill, as set out in the government motion to create part II.1, be amended by striking out "or" at the end of clause (a), adding "or" at the end of clause (b) and adding the following clause:
"(c) dentists who are employed in their professional capacity."
The Second Deputy Chair: I believe the member for Oriole was dealing with subsection 21.2?
Mrs Caplan: Correct. After where it says "lawyers and engineers who are employed in their professional capacity." That's on the government amendment. It's subsection 21.2(3), and I'm adding clause (c).
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The Second Deputy Chair: We will simply put in Hansard that the member for Oriole has moved an amendment to the new section, subsection 21.2. Please address your amendments.
Mrs Caplan: In fact the third party, the Progressive Conservative Party, had attempted to move an amendment which would have attempted to do fundamentally the same thing. The concern here has been communicated to us, actually as recently as this afternoon. I think it was an omission that the dentists were included in a way in this bill which I don't think had originally been contemplated.
The fact is that the amendment I have placed would retain the status quo and permit dentists to continue to bargain along with doctors who are employed in their professional capacity with the government by an agreement that has been in place since the early 1970s.
It would appear that under the existing amendments there's a potential for the dentists to be swept into the seventh bargaining unit comprising the unrepresented employees, and if the status is not clarified in the manner that I'm proposing as an amendment to this section, I think an injustice would be done. I don't think it was the government's intention to do this, and we heard from the dentists and the doctors today that they would prefer to remain under a special agreement with the government.
That's the purpose of this amendment, and I will have additional amendments to this part. It allows the dentists to choose who will represent them. It permits the spirit which the government wishes, which is that the dentists would be included, as they are in the Labour Relations Act; however, it would allow them the right to choose who their bargaining agent would be. I think it's a reasonable amendment.
The Second Deputy Chair: Further debate on the member for Oriole's amendment?
Mr Turnbull: As I've already indicated with my earlier amendment on the same issue, we feel this is appropriate and we will vote with the Liberals on this. Indeed, I believe they're going to vote with us on our amendment. We believe our approach is maybe a little bit better, but that's splitting hairs.
Mr Cooper: I think the response is the same as to the third party, that dentists are already covered under the Labour Relations Act and we won't be including them in this.
Mrs Caplan: I'd ask the parliamentary assistant to reconsider. It was our understanding in discussion this afternoon that the government was going to accept this amendment so that the status quo would not be changed for the dentists, who have negotiated, along with doctors, as part of an agreement and an association. They have an agreement with the government and this has been the practice for some time. It was my understanding that the government was prepared to accept this amendment. We worked with them in the drafting of it, and I'd ask the parliamentary assistant to reconsider.
Mr Cooper: Discussions did take place, and I was advised of discussions that were taking place with the opposition members to which I was not a party. When we did sit down and discuss it, we decided not to agree to this.
Mrs Caplan: In that case, I think it's reasonable for me just to say that I've been around since 1985, and generally, if the government changes its mind on accepting an amendment, notice is given. I would ask that this be stood down and perhaps we could have some further discussion on this, because we've seen a couple of occasions where the government has said it would do something, changed its mind and then reconsidered. As the representations were made very late this afternoon and the concerns were raised, it would be reasonable for this to be stood down to allow for some further discussions. We heard nothing from the parliamentary assistant, from the government or from the minister's assistants that suggested they were going to change their minds on what seemed to be simply a matter of fairness. I'm quite surprised to hear from the parliamentary assistant that they're not going to honour the commitment they made this afternoon, which was to accept this amendment.
The Second Deputy Chair: We do not have any provisions for standing down amendments. Do we have unanimous consent? We do not have unanimous consent; therefore, this amendment will be stacked and voted on tomorrow afternoon.
Further amendments by the official opposition, the Liberal Party.
Mrs Caplan: I move that subsection 21.2(3) of the bill, as set out in the government motion to create part II.1, be amended by adding the following clause. If you'll look in subsection 21.2(3) of the bill, there's clause (b); I'd like to add clause (b.1). Where it says "lawyers and engineers who are employed in their professional capacity," I'd like to add clause "(b.1) a landscape architect;" and "(b.2) a veterinarian."
Apparently there are nine landscape architects in the employ of the government. They are professionals, as they have their own legislation, and they have requested that they be dealt with as other professionals: lawyers, engineers. It's amending that part of the legislation that would treat landscape architects as professionals in this legislation.
As well, with regard to clause (b.2), there are approximately 1,200 veterinarians in the employ of the government. Their situation is the same as the other professionals. They have their own legislation that designates their professional status and all they're requesting and what this would do is give them the choice of who their bargaining agent would be. I'm asking the government to accept these amendments, that for two groups of professionals, they be dealt with in the same way as lawyers and engineers.
Mr Cooper: I'd just like to remind the member opposite that under the Labour Relations Act landscape architects aren't included in the lists of professions. At present, landscape architects are covered under OPSEU as their bargaining agent, so at this time we aren't choosing to separate them out of their bargaining agent that's already recognized.
The Second Deputy Chair: Further debate? Is it the pleasure of the House that Mrs Caplan's amendment to subsection 21.2 carry? No. Therefore, the vote will be stacked and voted on tomorrow.
Opposition amendment, the member for Oriole.
Mrs Caplan: Let me try one more time. It's my understanding that it was the fact that there were a number of veterinarians who caused the government not to accept the last amendment. There are nine landscape architects in the employ of the government and the amendment I'd like to make now will apply only to those nine.
I move that subsection 21.2(3) of the bill, as set out in the government motion to create part II.1, be amended by adding the following clause:
"(b.1) a landscape architect."
I think the request of the landscape architects is simple: It's that they be treated the same way as lawyers and engineers -- yes, it's not the veterinarian one, it's the landscape architect.
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The Second Deputy Chair: The table does not have the benefit of a copy of that.
Mrs Caplan: I have a copy for the table.
I understand that the hesitancy of the government on veterinarians is that there were over 1,000 veterinarians; there are only nine landscape architects. They are covered by their own professional legislation and they ask to be treated the same as the lawyers and engineers who are also covered by their own professional legislation. I'd ask the government to accept the amendment to deal with nine landscape architects, who've asked for the right to choose who will represent them.
The truth is that they are presently covered by OPSEU, but they have asked for the right to make that determination. OPSEU could still convince them or it could be AMAPCEO, as they are organizing. What these nine people have asked for is the right to choose. It's a simple request.
Mr Turnbull: We agree with the thrust of this amendment. It's quite clear that it is obnoxious to people to be forced into unions; the whole principle of being forced into unions is wrong. The government is taking a typical socialist approach in this, that it knows better than the people themselves.
They've indicated that, if anything, they want to be in AMAPCEO. Why on earth not let them? Why does the government believe it knows better than anybody else where these people should be directed? This is just a payback to the unions. We agree with this amendment by the Liberals.
Mr Cooper: I think my response to the previous amendment stands. Might I remind the members opposite that there are host of other professions that aren't covered under the Labour Relations Act, and I don't think that at this time we want to single out one and bring it in.
Mrs Caplan: Again I'd ask the parliamentary assistant to reconsider. It was my understanding that because we were dealing with nine professionals, professional landscape architects in the employ of the government, that the government was willing to accept that amendment because it was dealing with a few employees who did qualify as professionals; they had their own professional legislation. Again without any notice the government seems to have gone back on its commitment that it would accept an amendment that would allow nine landscape architects to choose who their bargaining agent would be.
I would point out that this is not saying they won't be part of a bargaining unit. All this is doing is giving professionals the right to choose who will represent them. It was my understanding that the government had given us its consent and we were told this afternoon that it was prepared to accept this amendment on behalf of the landscape architects. Frankly, I'm at loss to understand why they are going back on their word.
Mr Cooper: I must apologize, because there was never any commitment. My understanding all the way through my carrying of this bill is that there was no commitment to do this. There weren't even any discussions on it today, at the last minute. There was nothing brought up to me on this and there was never a commitment from the government.
Mrs Caplan: I'd just like to put on the record that these votes are being stacked and that the government will have an opportunity to reconsider its position before the final vote is taken. I'd ask the parliamentary assistant to speak to the minister. It's my understanding that commitments were given, that this would be accepted by the government. They will have the opportunity tomorrow to do what they said they would do and to stay true to their word and to give the landscape architects the choice they have requested, which is to choose who their bargaining agent will be.
Mr Cooper: There's nobody forcing the landscape architects anyplace. Basically, what we're doing is providing the provision where they can set up the way they want to bargain themselves.
The Second Deputy Chair: Further debate? Shall Mrs Caplan's amendment to the new section carry? No. The vote will be stacked and voted on tomorrow.
Further amendments by the official opposition.
Mrs Caplan: The amendment I'd like to make is to section 21.3(2.1) and (2.2) of the bill.
I move that section 21.3 of the bill, as set out in the government motion to create part II.1, be amended by adding the following subsections:
"Exception
"(2.1) Every individual who was not a member of a bargaining unit before bargaining units are designated under section 21.2, and who would be included in such a bargaining unit, may vote by secret ballot to determine whether he or she becomes a member of the Ontario Public Service Employees Union.
"Same
"(2.2) If a majority of individuals voting vote against becoming members of the union,
"(a) none of the individuals referred to in subsection (2.1) shall be included in a bargaining unit designated under section 21.2; and
"(b) none of the individuals is represented by the union."
The Second Deputy Chair: Thank you. Would you have some further comments, the member for Oriole?
Mrs Caplan: Frankly, given the performance of the parliamentary assistant and the government today, I don't expect this motion's going to carry, but I can't understand why it wouldn't because to me this is one of the fundamental principles of our democracy.
I know you, Mr Chair, understand that what this amendment does is permit a secret ballot for members to be able to vote whether or not they want to be in a union and, if so, which bargaining agent they would choose. Commitments that were given by the government earlier were that in fact people would have the right to choose. The former minister committed that people would have the opportunity to decide if they wanted to be in a union and, if so, which bargaining agent they would want.
Mr James J. Bradley (St Catharines): That's democratic.
Mrs Caplan: That certainly is democratic. However, we know that as part of that process, the fundamental principles of our democracy are that those votes be taken by secret ballot. I am hopeful that the government today will accept that democratic principle of a secret ballot, enshrine it in this legislation and then hopefully amend Bill 40 so that it too will include the right of individuals to a secret ballot.
I'm not going to speak at length on this, but I can tell you that I don't understand what is wrong with a secret ballot. I can't imagine why the New Democratic Party would be opposed to a secret ballot. I would ask that, in light of some of the very significant changes that are being made, the rights of individuals be safeguarded by permitting individuals the opportunity to have a secret ballot as to whether or not they want to be unionized and join the union in the first place and, secondly, as to which bargaining agent they wish to represent them.
Mr Turnbull: I agree with what the previous speaker, the member for Oriole, has just said, but just to speak a little bit about how flawed this whole process is, I have in my hand this great big bundle of amendments. We've had amendments flying around all over the place. We've got over 60 amendments to this, including government and opposition amendments; most of them are government amendments. I don't even have a copy of the last couple of amendments the Liberals have brought, so I'm flying blind when it comes to this. I agree with what you said, but I don't have a copy of this.
This whole bill is being rammed through the House in record speed. The government has done such a poor job of drafting it that it's taking out sections and putting in other things, and this is typical of the way they are passing all of their legislation. They obviously demonstrate by every single move they make how incompetent they are.
In this particular case, I can't blame them for it because it is the Liberals who haven't given me a copy of this, but when you are faced with the kind of time schedule we are with this bill, it's not surprising that something falls between the walls.
Mr Chris Stockwell (Etobicoke West): Can I ask you, Mr Chair, if these amendments are in fact tabled?
The Second Deputy Chair: These amendments are tabled here with the clerk and with your Chair.
Mr Stockwell: Can we get copies of those, do you think?
The Second Deputy Chair: I believe you have all the amendments.
Mr Stockwell: We have copies?
Mr Turnbull: We gave them to you. Not all these ones. We have some Liberal amendments, but not all.
Mr Stockwell: Would it not be the responsibility of the Chair or the table to in fact ensure that the parties get copies of the amendments?
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The Second Deputy Chair: It is the responsibility of the mover, and we have copies here.
Mr Bradley: Is there a photocopier in the building?
The Second Deputy Chair: The member for Oriole would possibly have some --
Mrs Caplan: Mr Speaker, I apologize to the member. It was my understanding that copies had been made and distributed to the third party. If that didn't happen, you have my apology and I'd be happy to give you my copy.
Mr Stockwell: I certainly don't blame the Liberals because I think it's been so fast and furious trying to get the amendments through, but it is very --
Mr Randy R. Hope (Chatham-Kent): Oh, come on, Stockwell.
Mr Stockwell: I seem to have upset the mayor of Chatham over there and I apologize. I don't want to upset any more municipal officials than I have to.
Mr Charles Harnick (Willowdale): One term as mayor of Chatham.
Mr Stockwell: Yes. Maybe your mayoralty career has been more successful than your parliamentary career, sir.
Interjections.
Mr Stockwell: Okay. This one then we're now standing down to vote on --
The Second Deputy Chair: We will put the question to the House, and if indeed it is not accepted by the government, it will be stacked and voted on tomorrow.
Mr Stockwell: The government has said they do not accept this amendment.
Interjection: Not yet.
Mr Stockwell: Then I'll reserve comment until I hear from the parliamentary assistant.
Mr Cooper: To the member from Etobicoke, no, we will not be accepting this amendment.
First of all, in response to some of the things raised, this is not being rammed through the House. This has gone through second reading and is now in committee of the whole for discussion. Up until last Wednesday and Thursday I personally was still meeting with representatives from CUPE, OPSEU, AMAPCEO and the agencies, boards and commissions, and some of the issues that were raised at that time are being addressed right now with some of the amendments. The consultation was going on, and that's why there are some last-minute amendments to this.
In relation to the amendment, we cannot be supporting this because basically what has happened is the employer has traditionally excluded these approximately 2,000 employees, and with their community of interest they are being brought into where they originally did belong.
Mr Stockwell: May I have a question of the parliamentary assistant?
The Second Deputy Chair: That's what we're here for.
Mr Stockwell: Thank you, sir. Can you explain again how they haven't been included?
Mr Cooper: They were excluded.
Mr Stockwell: They were excluded. So now you're including them, and in essence your inclusion is dictatorial, unilateral. There's no secret ballot involved with respect to their inclusion. Has it crossed your mind that maybe some, a majority, a percentage of these people, don't want to be included?
Mr Cooper: I'm sure there are some people who don't want to be included. I know if you look at any union movement right now, there are a number of people who don't agree with paying union dues. But because of their traditional exclusion, what we're doing is bringing them into the community of interest with the bargaining agent that was representing the people along the same lines. That's why they will be included now. That's for one term, one round of their collective bargaining agreement.
Mr Stockwell: Did it strike you that possibly, rather than assuming they want to be included, maybe you should give these people the democratic right to determine in their own minds collectively whether or not they would like to be included?
Mr Cooper: Right now they've been traditionally excluded. We've agreed that they would be included now because of the community of interest, and after one round they will have the option of going back and going through the whole procedure to determine what they want to do after that.
Mr Stockwell: Quickly, Mr Chair, just through you --
Mr Hope: It'll be like stable funding.
Mr Stockwell: There's the mayor of Chatham again. That's good.
Interjections.
The Second Deputy Chair: Order.
Mr Stockwell: I say directly to the parliamentary assistant, it seems to me that if you are going to include anybody in anything, whether it is a union or a game of football, you would ask them, "Do you want to be included?" It seems to me that having a secret ballot asking 2,000 people whether they would like to be included or not would be a rather straightforward, simple process that any democracy -- in fact, just yesterday the old USSR had that inclusion thing. It was called an election.
I'm curious. Is this something you're diametrically opposed to, a secret ballot -- ie, election -- to determine whether 2,000 people want to be included in your strong-arm tactics?
Mr Cooper: No, I'm not opposed, but if you look at the labour relations board, they don't go and talk to each individual when they make their determinations. What we're trying to do is bring some civility in while we bring in this new legislation, and after one round they will have their choice, through the democratic process set up in the union movement, to determine what their future will be.
Mrs Caplan: I would point out to the parliamentary assistant and to anyone who's watching this debate that in fact a normal certification process has not taken place. What the government is doing is saying that 2,000 employees who have formerly been excluded, who did not have the obligation of paying union dues, are, without any signing of cards, without any certification process, without any ballot whatever, automatically being forced to join the Ontario Public Service Employees Union. They are not providing them with any kind of a vote, secret ballot or otherwise.
What this amendment attempts to do is allow those people a secret ballot vote so that they can say whether or not they wish to be included in that new cohort of employees who are going to be paying union dues. This is about union dues. It's about the forced unionization of 2,000 people. Frankly, many have said, and I would agree, that this is the NDP paying off OPSEU, because this is a lot of union dues in the bank.
It seems to me that before you force 2,000 people, in this time of social contract and wage cutbacks, to pay union dues, you should at least ask them, and the fair way of asking them is by secret ballot.
I've been frustrated by the approach of this government on these and other important issues, but I know those 2,000 people are very, very angry at not at least being asked. It could well be that they would have chosen to be included. It would have been very possible that they would have been happy to be included, because they were formerly excluded. But to have the government arbitrarily, in a dictatorial way, say, "You shall now pay union dues," I know goes against the grain of a lot of people who at least would have liked to have been asked. This amendment would only afford them that right by secret ballot to have their say. For any government, but particularly a New Democratic government which purported to represent the ordinary person, to not permit those 2,000 ordinary Ontarians, members of the public service -- to restrict them and not give them the right to have a say, I think is not only undemocratic but it goes against the very principles that the New Democratic Party has always espoused.
Mr Cooper: To the member for Oriole, let me say that the way it has been is that traditionally these people were excluded and they weren't given the choice, and that was done unilaterally; that was without a vote. What we're doing now is saying they will no longer be excluded, and because of their community of interests they will be brought in to where they traditionally did belong.
Mr Turnbull: We're getting smoke blown at us by the parliamentary assistant. He keeps on saying that this is only for one round of bargaining and then next time it's all open. Well, why put them in in the first place? We've got this socialist Newspeak, you know, "community of interests." Why don't we rechristen it as the big payoff to Freddy Upshaw?
Two thousand people, and $35 per pay period is the union dues. Do the math. That comes to very close to $2 million. That is just for one round of negotiating. Two million dollars a year is what you're paying, and don't let's have any other depiction of it. This is the big payoff to Freddy Upshaw. There is no reason whatsoever for you to put these people in without at least allowing them a secret ballot.
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There was a secret ballot that got you people here. It may have been an awfully flawed process, but nevertheless you got here. At least give those people who are being forced into the union the same courtesy. You would have a great objection to the idea that a government were forced in without any secret ballot "just for one term," and that's exactly what you're doing. This is fundamentally unfair, and the fact that you don't support this amendment really shows that you are not dedicated to the concept of democracy.
Mr Cooper: If I might remind the members present, back in the late 1970s Bill Davis unilaterally moved 3,000 members into OPSEU without choice.
Mr Turnbull: Let me say, Mr Chair, that if I had been around in those days, I would have been voting against it. You can be sure of that.
The Second Deputy Chair: Further debate on Mrs Caplan's amendment? Is it the pleasure of the House that Mrs Caplan's amendment to the subsections of the new section be approved? Agreed? No? The vote will be stacked until tomorrow.
Any further amendments on the new section 21? We will now proceed to section 22 of the bill. Parliamentary assistant.
Mr Cooper: I move that the definition of "essential services" in section 22 of the bill be amended by adding at the end of clause (d) "or of legislative drafting."
The Second Deputy Chair: Mr Cooper has moved an amendment to section 22 of the bill. Any debate?
Mr Turnbull: Well, Mr Chair, I will be moving an amendment which essentially says the same thing, but is much better drafted, in my belief. So we will not be voting for the government amendment.
The Second Deputy Chair: Further debate. Is it the pleasure of the House that Mr Cooper's amendment to section 22 of the bill proceed? Agreed. The motion's carried.
Shall section 22, as amended, carry? Agreed.
We now have an amendment by the Progressive Conservative Party.
Mr Turnbull: I move that the definition of "essential services" in section 22 of the bill be amended by adding the following after the word "courts" at the end of clause (d): "or of any of the work carried out by crown attorneys or of legislative drafting."
The Second Deputy Chair: We are still on section 22. The Chair's mistake. Debate on Mr Turnbull's amendment? The member for St Catharines.
Mr Bradley: I would think this would have to be supported, because if the government were in a position of having to write the strikebreaking bill -- which it obviously will, because it agrees with the right for teachers to strike, but every time the teachers go on strike, the government wants to bring in a strikebreaking bill. So quite obviously they're going to have somebody write the bill, unless they're going to go to the private sector. So I think it would be logical that the Chair of Management Board have the right to have his people write a strikebreaking bill, which obviously he's going to have to bring in.
The Second Deputy Chair: Further debate? Is it the pleasure of the House that Mr Turnbull's amendment carry? No? It will therefore be stacked and section 22 will be voted on tomorrow once the amendment has been voted on.
We now move on to section 23. We have a government amendment. The parliamentary assistant.
Mr Cooper: I move that section 23 of the bill be amended by adding the following subsection:
"Duty to bargain
"(2) The employer and the trade union shall bargain in good faith and make every reasonable effort to make an essential services agreement."
The Second Deputy Chair: Mr Cooper has moved an amendment to section 23 of the bill. Do we have any debate? No debate.
Is it the pleasure of the House that Mr Cooper's amendment carry? Carried.
Further amendments? That is the only amendment to section 23. Shall section 23 of the bill, as amended, carry? Carried.
Further government amendment, section 24.
Mr Cooper: I move that clause 24(1)(c) of the bill be struck out and the following substituted:
"(c) identify the employees who the employer and trade union have agreed will be required during a strike or lockout to work to the extent necessary to enable the employer to provide the essential services."
The Second Deputy Chair: Mr Cooper has moved an amendment to section 24. Debate?
Mr Stockwell: It certainly begs the question: How come the government can allow themselves to have skeleton staff or strikebreaking staff --
Mr Harnick: Call them scabs.
Mr Stockwell: -- scabs, yeah -- to provide service, but you don't allow the same kind of agreement in the private sector?
Mr Cooper: I don't understand here. But there are essential services schemes in the Labour Relations Act. I know in the factory that I come from, there are protections to make sure there's no damage to property and the people in the powerhouse do continue to work.
Interjection.
Mr Stockwell: But the fact of the matter is and I say to the mayor of Chatham that you have said categorically in your labour relations bill that you can't move office staff or senior staff around. If you're part of the union, you can't cross the line. You can't cross the picket line. Now, it seems to me that if that's good enough for the private sector, that the --
Mr Hope: Says who?
Mr Stockwell: Says you.
Mr Hope: No. Read the law. It is much broader.
Mr Stockwell: -- that the union can't go across the picket line, then how come you can allow your staff to go across the picket line to provide a service?
Mr Cooper: The union does sit down with the employer in the private sector and they do discuss who is able to go in across the picket line to protect the plant. What we're doing is talking about essential services in the public sector, which is a whole different thing and one we do have to protect. That's why we have a separate piece of legislation here, separate from the Labour Relations Act.
Mr Stockwell: So in fact the private sector can then deem who they want to work during a strike and whoever they decide has to work has to come into work. Is that what you're saying?
Mr Cooper: There are negotiations and they agree on who will cross, just like here. There will be an agreement between the two parties and they will determine who will be essential and who will go into work.
Mr Bradley: My question to the parliamentary assistant is, how does one determine the final outcome of that discussion if both sides are at loggerheads and agreement can't be reached?
Mr Cooper: Either party can apply to the labour relations board.
Mr Stockwell: Just to give you a case in point, with respect to the strike that's taking place now at MFM, who negotiated those people? As far as I can see, the entire stores are closed down.
Mr Cooper: I don't understand what you're talking about. The stores are closed down, agreed, because they're out on a legal strike, and there was nobody asked to come in and perform essential services in the stores.
Interjections.
The Second Deputy Chair: Order. The member for Willowdale has the floor.
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Mr Harnick: I think we're getting answers that are not anywhere close to correct, because the fact of the matter is that under this piece of legislation, the employees that are required are able to provide the essential services. In other words, if you go back to section 22, one of those essential services may be to keep the courts up and running, fully operational. The courts keep going because it's an essential service; that keeps running. Why is a private employer whose employees are on strike not allowed to bring in people to keep his business going? It's a total double standard. What you have here is totally different from what Bill 40 permits. Why is that?
Mr Cooper: I might remind the members that manufacturing and keeping the courts going are two different things. I would suspect that keeping the courts going is essential; keeping manufacturing going is not essential in a strike or lockout situation.
Mr Stockwell: Essential to whom? Essential to the guy who owns the manufacturing plant? I think it's fairly essential to him. What about the customers he services? I would assume that's fairly essential.
Hon Elmer Buchanan (Minister of Agriculture and Food): That's free enterprise.
Mr Stockwell: It's what they call free enterprise. I say to the Minister of Agriculture and Food, who looks mighty comfortable here, that these are essential services. You deem what is essential. What you've done is deem what you provide is essential and insist that people cross the picket lines, but you're not allowing the private sector that same right.
Say someone is manufacturing an item -- a drug for hospitals. This is a private operation. He's got to live under this bill you have. As to these drugs he provides to hospitals, some people, particularly the ones taking it, may think this is somewhat essential. Who makes a decision on those?
Mr Cooper: I think we're really getting off track. When you look at the province of Ontario as an employer, we are servicing all the people in the province of Ontario. I don't think there's any other employer in the private sector that services the whole province; there are always alternatives.
I think this whole debate is just getting a little carried away. If you look at it, there's not a province or a federal jurisdiction that doesn't have the same type of legislation, one for private sector and one for public sector.
Mr Harnick: The only reason the parliamentary assistant says we're getting off track and that the debate is getting off track is because he is caught trying to explain the double standard that exists in this bill and he just cannot do it. That's why we're getting off track. We're getting off track because what's sauce for the goose is not sauce for the gander as far as New Democrats are concerned.
If you're in the private sector, you have certain rules and you have to abide by them, but if you're in the public sector you can avoid those rules, rewrite the rule book and do something totally different. It's quite obvious that the government here is legislating very separate rules for itself than it was prepared to legislate for those people who create wealth and who create jobs and who pay the taxes in this province. I remind the parliamentary assistant that the government doesn't pay the taxes; the private enterprisers and those who work for them pay the taxes.
Mr Bradley: I wanted to ask the parliamentary assistant, if I may, what notification has been given to the public that this legislation is going through this House, particularly this provision and other provisions? I'm sure if the public knew what was happening in this House as we rush towards Christmas, they would be, at the very least, extremely interested in what this government is doing right now. What notification have you given?
Mr Hope: This has been in front of the public's eyes for years.
The Second Deputy Chair: Order. Does the member want the floor?
Mr Hope: No, I'm doing quite well.
The Second Deputy Chair: Further debate?
Mr Stockwell: I'd like to know if you've defined yet what are essential services and what aren't.
Mr Cooper: In section 22 of the bill:
"'essential services' mean services that are necessary to enable the employer to prevent,
"(a) danger to life, health or safety,
"(b) the destruction or serious deterioration of machinery, equipment or premises,
"(c) serious environmental damage, or
"(d) disruption of the administration of the courts or of legislative drafting," as per the amendment.
Mr Stockwell: You can give a broad explanation like that and practically any ministry, any job, anyplace can fall into that broad category. My question is, have you defined specifically what services are offered that will fall into this unionization that are defined as essential?
Mr Cooper: I don't understand what he means by unionization. The essential services are laid out quite clearly, and basically all we're doing is talking about a small drafting amendment to the legislation that was introduced in June 1992.
Mrs Caplan: Perhaps I can be a little helpful for this debate. It's my understanding, and one of the concerns I've had about this Crown Employees Collective Bargaining Act is that I do believe it ties the hands of the employer and makes it very difficult for the government, and future governments, to manage. The definition of "essential service" and how that is arrived at is just one of those examples.
The member for Etobicoke West is quite correct. This legislation has a very broad and general definition and it leaves to negotiations with the unions the definitions of the specifics of who would be covered by "essential services."
It's always been my view that it would have been much better to have clarified in advance what you meant by "essential services." It is something that I don't personally believe should be left to negotiations, unanswered before the legislation goes forward.
I suggest these comments to be helpful, because in his response to the last speaker, the parliamentary assistant attempted to suggest that in fact everything was definitive and was in place and there were no problems. The reality is that what this legislation does is put in place a process for negotiation and discussion around what is an essential service. We know that that has to be in place before the other provisions of the bill kick in, but we also know that it is cumbersome, it is difficult, and I don't believe it protects the public interest. Therefore, the question from the member for Etobicoke West I think is a very legitimate one.
Mr Cooper: As all members will recall, under Bill 40 there was wide consultation on what were going to be essential services in there, and basically what we've done is that we've expanded that list to cover more things, such as the disruption of the courts and legislative drafting. So there has been consultation going on in trying to define what essential services were, and I might remind the members that it's the two parties, the employer and the employees, who have to sit down and determine the number of employees who will be designated as essential.
The Second Deputy Chair: Mr Cooper has moved an amendment to section 24. Is it the pleasure of the House that the motion carry? Carried.
Shall section 25, without amendments, carry? Carried.
Government amendment to section 26, parliamentary assistant.
Mr Cooper: I move that subparagraph iv of paragraph 2 of section 26 of the bill be amended by adding at the end "or of legislative drafting."
Basically, all this does is mirror the language changes in sections 22 and 24.
The Second Deputy Chair: Further debate? Is it the pleasure of the House that Mr Cooper's amendment to section 26 carry? Carried.
Further amendments to section 26?
Mr Cooper: I move that paragraph 5 of section 26 of the bill be struck out and the following substituted:
"5. which employees will be required during a strike or lockout to work to the extent necessary to enable the employer to provide the essential services."
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The Second Deputy Chair: Mr Cooper has moved an amendment to section 26. Opening remarks, comments or debate? Is it the pleasure of the House that Mr Cooper's amendment to section 26 carry? Carried.
Shall section 26, as amended, carry? Carried.
Shall section 27, without amendments, carry? Carried.
Government amendment to section 28; Mr Cooper.
Mr Cooper: I move that subsection 28(2) of the bill be struck out.
The Second Deputy Chair: Debate, discussion or questions? Is it the pleasure of the House that Mr Cooper's amendment to subsection 28(2) carry? Agreed.
We have further amendments to section 28; the Progressive Conservatives.
Mr Turnbull: No, Mr Chair.
The Second Deputy Chair: We have been provided with some amendments which may have been withdrawn.
There is confusion about Mr Turnbull's amendments. We have copies of amendments to subsection 28.20(2), 28.22 of the bill and 28.23(2) of the bill.
Mr Turnbull: That is withdrawn, Mr Chair.
The Second Deputy Chair: Thank you.
Shall section 28, as amended, carry? Carried.
Shall sections 29 to 33, inclusive, carry without amendments? Carried.
We now have a government motion to section 34; the parliamentary assistant.
Mr Cooper: I move that section 34 of the bill be struck out and the following substituted:
"Application re meaningful bargaining
"34(1) A party to an essential services agreement may apply to the Ontario Labour Relations Board for a determination as to whether meaningful collective bargaining has been prevented because of the agreement.
"Same
"(2) No application may be made until employees in the bargaining unit have been on strike or locked out for at least ten days.
"Same
"(3) The board shall consider whether sufficient time has elapsed in the dispute between the parties to permit it to determine whether meaningful collective bargaining has been prevented.
"Deferred decision
"(4) The board may defer making a decision on the application until such time as it considers appropriate.
"Interim order
"(5) The board shall not make an interim order containing rates of wages or other terms and conditions of employment except as provided under section 35.
"Orders
"(6) The board may
"(a) direct the parties to continue negotiations for a collective agreement;
"(b) direct the parties to confer with a mediator who will endeavour to effect a collective agreement;
"(c) order that all matters remaining in dispute between the parties be resolved by a mediator-arbitrator;
"(d) order that all matters remaining in dispute between the parties be referred to an arbitrator or to a board of arbitration for final and binding arbitration;
"(e) require that the arbitration referred to in clause (d) settle the collective agreement by final offer selection;
"(f) amend the essential services agreement to reduce the number of employee positions or to reduce the number of employees in the bargaining unit that are designated as necessary to enable the employer to provide the essential services;
"(g) give such other directions as the board considers appropriate.
"Deeming
"(7) If an order described in clause (6)(d) is made, the parties shall be deemed to have irrevocably agreed in writing under section 38 of the Labour Relations Act to make the referral in accordance with the order.
"Amendment to agreement
"(8) If the board determines that meaningful collective bargaining has been prevented because of the essential services agreement, on an application under this section or subsection 28(5) or 30(1) the board shall not amend the agreement to increase the number of employee positions or to increase the number of employees in the bargaining unit that are designated as necessary to enable to employer to provide the essential services."
The Second Deputy Chair: Mr Cooper has moved an amendment to section 34. Discussion, debate, questions or comments?
Mr Harnick: I have some remarks dealing with section 34. May I, at the outset, say that section 34 is probably one of the stupidest, most ill-conceived sections in an act that I have yet seen this government produce, and I've seen some pretty stupid things from this government.
Mr Bradley: That lets a lot of sections off the hook.
Mr Harnick: Yes, that lets a lot of sections off the hook, but this one is really very interesting. The reason I say that is because if you take a look at the bill as originally printed, section 34(1) of the bill as originally printed states:
"A party to an essential services agreement may apply to the Ontario Labour Relations Board for a determination as to whether, because of the essential services agreement, meaningful collective bargaining is prevented."
Subsection (2) says, "The board must make its determination in accordance with the regulations made under this part."
Subsection (3) says, "If the board determines that meaningful collective bargaining is prevented, the parties shall be deemed to have, on the day of the determination, irrevocably agreed in writing under section 38 of the Labour Relations Act to refer all matters remaining in dispute between them to a board of arbitration for final and binding arbitration."
What this bill now is effectively saying is that if you have a breakdown and there's some issue as to whether meaningful collective bargaining has been prevented, the very next thing that has to happen before you can get to binding arbitration is that they are mandating that you must have a strike, that you have to have a strike before you can get to the binding arbitration aspect of this. Nothing could be more illogical than that.
Let me go on, because this particularly affects the Ontario Crown Attorneys Association and the Association of Law Officers of the Crown, who represent over 900 lawyers and they collectively bargain with the government under a framework agreement which contains a mandatory binding arbitration provision.
With the government moving these amendments to Bill 117 amending the Public Service Act and the Labour Relations Act and making related amendments, this will affect the collective bargaining rights between lawyers and the government. I'm only talking about lawyers who work for the government.
Interjections.
Mr Harnick: No. I told you, there are 900, not 75,000. The member says there are 75,000. If there were 75,000 it would show you're mismanaging this province even worse than you really are.
What happens is that binding arbitration is the current way in which the lawyers that are employed by the Ministry of the Attorney General resolve disputes which arise in collective bargaining. As a further result of these amendments, in the event of an unresolved dispute in the collective bargaining process, lawyers have to vote go on strike before they have access to the dispute resolution mechanism that's built into the bill.
The very interesting aspect to this is that during the course of consultation by the Ministry of Labour with the two associations -- and I'm referring to the crown attorneys association and the association of law officers -- the requirement to go on strike prior to access to potential arbitration was never, ever raised.
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I know the parliamentary assistant is going to get up and say they consulted widely with everybody under the sun. The reality is -- and I believe the crown attorneys association and the association of law officers of the crown over anything this government tells me, and they represent all of the lawyers who are affected by this provision -- they were never consulted about it prior to this amendment. I can tell you, I think this amendment came today. Today or yesterday was the first time anybody ever saw it. I can't conceive of why the government is blasting this piece of legislation through without even discussing it with their own employees, who don't want to be forced to go on strike, who want the opportunity just to seek the binding arbitration provisions they already have.
The other aspect that really puts these lawyers in a very difficult position is the rules of professional conduct of the Law Society of Upper Canada and what in effect those rules say. Those rules require lawyers not to withdraw their services from clients except for good cause and upon notice, and further require lawyers to make legal services available to the public. Lawyers are employees even though they're members of the law society, and they have a primary obligation to their clients. In this case, the client is the public through service to the government of Ontario, so they are being put in a very, very difficult position.
I have a letter from the Law Society of Upper Canada dealing with this very issue. What the letter effectively says is that the society's special committee on proposed changes to the Labour Relations Act made a seven-page submission going back to March 1992. This letter was written to a fellow by the name of Richard Prial, who is evidently a project manager with the Ontario Ministry of Labour. This is a letter dated February 19, 1993, from the Law Society of Upper Canada, and it goes on to say:
"The question of lawyers who are crown employees acquiring the right to strike as part of the collective bargaining process is addressed in the following paragraphs taken from page 7:
"'The Law Society of Upper Canada makes no submission with respect to the extension of rights to organize and bargain collectively to qualified lawyers employed in a professional capacity who are crown employees. It is assumed, however, that the extension of such rights would be governed by legislation similar to that applicable to other crown employees and that the right to strike would be prohibited. The Law Society of Upper Canada submits that crown attorneys in criminal proceedings or civil attorneys who represent the government in other matters should not be given the right to strike,'" and they do not want the right to strike. "'The impact on citizens and the administration of justice and the necessary delays which would result from concerted strike action by this group would be an unacceptable burden on courts, tribunals and the public. However, the extension of collective bargaining rights to such professionals and the establishment of an interest arbitration dispute resolution mechanism for such a group, in our respectful submission, is properly a matter of government policy.'"
It's quite obvious, I say to the parliamentary assistant, that when you look at the proposed amendment to section 34, the advice from the Law Society of Upper Canada has totally been ignored and what you've effectively done is put the lawyers who work for the government in a catch-22 situation. They are now going to be in breach of their rules of professional conduct by having to attorn to the legislation that you're now writing. The letter goes on to say:
"'The reasons for distinguishing crown employed lawyers from others primarily relate to the fact that the government of Ontario is the exclusive client and employer of these lawyers. The government is also in a unique position as a public service provider. The extension of rights to organize and bargain collectively therefore is a decision which can be made without unduly affecting the client because the government is the exclusive client served by the group of professionals to whom collective rights would be extended. While the Law Society of Upper Canada would understand why the government as client might decide not to extend such rights to lawyers, the Law Society of Upper Canada also believes that the government is in the best position to determine its own policy with respect to professional employees, employed by the crown.'"
What they're saying is, if you think they should be a union, go ahead and make them a union, but don't make them go on strike because they cannot do that. It's against the rules of professional conduct. They are hired to serve the government, which means they're hired to serve the public, and lawyers are not allowed to withdraw services arbitrarily.
The letter goes on to say, "The law society understands that the Ontario Crown Attorneys Association and the Association of Law Officers of the Crown have no objection to acquiring the right to bargain collectively." That should make you all very happy. The law society says that in terms of bargaining, what you're doing is right. "Their concern is that, if no agreement can be reached between the government and these two groups, all outstanding issues would be resolved through binding arbitration as opposed to by a strike. The law society appreciates their concern and recognizes that they do not wish to have their professional duties interfered with which would logically follow were there a strike.
"I trust this is of some assistance to you,
"Yours very truly," and it's signed by Allan M. Rock QC, the then treasurer of the law society, who's now the Minister of Justice in Ottawa.
What you are effectively doing in your haste to push this through is adding a section that lawyers cannot abide with. You are putting lawyers in a catch-22 situation. They cannot abide by this piece of legislation. You are making it impossible for them to carry on their service to the public while they're employed by the government of Ontario. They didn't want this right to strike.
There should be an exception made so that they avoid this, and you've got probably 24 hours till we ram this through at third reading. I would urge the parliamentary assistant to go back to the minister and review this section because it is not right. It is just absolutely clear when you see a section like this that there has been no consultation. You're doing something that's clearly wrong. You're putting these lawyers who are your employees in an untenable situation, and it's just obvious that the only reason this amendment is here is because you haven't given this section any thought. It's just absolutely blatant that all you want to do is ram this through.
As I said before, you're going to create rules that are good for you, but rules that you wouldn't even listen or talk about when we dealt with Bill 40, a similar labour bill. I would urge the parliamentary assistant to withdraw the amendments to section 34 immediately.
Mr Cooper: In response, I find it somewhat passing strange that the law society would unilaterally impose on their lawyers what they can and cannot do in this situation. If you look at the right to strike that's laid out, it's been very broadly interpreted. They don't have to withdraw their services. Basically what they could do are things like work to rule and not take on new clients, --
Mr Harnick: That's not what it says.
Mr Cooper: -- which would be an alternative for them rather than going out on a recognized strike and withdrawing total services.
Under the way it was written previously, there's no provision to make sure that they do bargain or have been in collective bargaining. Now what it is, with the necessity of a 10-day strike, is that they would have to go out on strike, in which case it would be proven that they did bargain beforehand, whereas before there was nothing guaranteeing they would bargain; they could just go straight to arbitration.
As for the crown employees, it's obvious through our amendment about the disruption of courts that we did find that they are essential, and that's why we've passed some of the amendments we have.
Mr Harnick: What the parliamentary assistant says is absolute, total, unadulterated, idiotic nonsense. Do me a favour. Pick up your piece of paper that says section 34 on it. Take a look at subsection 34(2). I'll read it to you as slowly as I can read.
"No application" -- that means none -- "may be made until employees in the bargaining unit have been on strike" -- means they have to be on strike before they can make an application -- "or locked out for at least ten days." So here you are in section 22 saying that they're essential and they can't disrupt, and here you are in section 34 saying that before they can get access to their mediation or arbitration, they've got to go on strike.
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It just doesn't make sense, and the people sitting in front of you can tell you every combination and permutation of ways to get you out of this one, but it doesn't exist. This is absolute nonsense. You've got a chance now, because we're not going to ram this through until probably 3:30 tomorrow, so we've probably got about 20 hours -- no? How many?
Mr Stockwell: About 18.
Mr Harnick: About 18 hours. You've got 18 hours to come back with something that makes sense. But you can't say in section 22 that they're an essential service and then in section 34 say the only way that you can do this is to go on strike; that's the only way you're going to get your arbitration process through. It just doesn't make sense.
The fact of the matter is that you can stand up and say to me, Mr Parliamentary Assistant, "Well, you know, the crowns who have to go into the court to prosecute the cases, they're the essential service, but those who are doing the work in the background aren't essential," so that some keep working and some don't keep working. The whole system breaks down if the crowns in the back rooms, so to speak, who are reviewing the charges, doing the research, doing the screening process, are taken out of the system. The whole system breaks down and you end up in another Askov situation.
I remind the parliamentary assistant and the two advisers that he has from, I suspect, the Ministry of Labour or Management Board that your own Attorney General is now considering the Martin report. The Martin report, which will streamline the operation of the criminal courts, specifically provides recognized duties for those crown attorneys who aren't in the courtroom and says that they are the most integral part of the process. That is the place where charges are screened, where fact situations are reviewed, where disclosure is made, where trials are avoided and where pleas are arranged so that the system doesn't break down by being overloaded and we don't get another Askov situation.
So you've got 18 hours to scrap this amendment or at the very least make it consistent with what you're saying in section 22, because you can't have the courts break down. All you're asking for in section 34 is the courts to break down.
The ironic thing about the whole thing is that the lawyers don't want to strike. They don't want to be put in the position where they have to strike. Don't make them go on strike just because that's what the NDP believes in. The NDP believes in strikes, so it's making people go on strike to get to arbitration, to get to the binding arbitration aspect of it. It just doesn't make sense. It's so illogical, it's so stupid. I apologize for using that word, but it's absolutely stupid, and anybody who conceived this has to be a moron. There's just no other way to describe it, and anybody who could advocate this is just as big a moron as the person who wrote it. So you've got to get rid of it. It just doesn't make sense. It's just totally illogical. There's not a person in this room who can read these sections and come to any other conclusion. It's just impossible. Anybody who -- well, maybe I'm giving you a little too much credit. I'm assuming everybody can read. But the fact of the matter is you've got 18 hours to scrap this, and it's just ridiculous.
Mrs Caplan: I know that the member for Willowdale's excessive rhetoric may be getting in the way of some thoughtful debate on this, and I'd like to ask the --
Mr Stockwell: Ms Thoughtful Debate herself.
Mrs Caplan: The parliamentary assistant, I think, should consider the following, because I listened very carefully to his response to the first comments from the member for Willowdale.
It seems to me that the whole intent of this legislation, which I think is questionable to begin with, but the whole intent of revisions to the Crown Employees Collective Bargaining Act is to expand the rights of civil servants to give them the right to strike, to give them the opportunity for collective bargaining in a way which the New Democratic Party feels is better for them, whether they want it or not.
But we have a situation here where we have crown law officers and lawyers who are part of a professional, self-governing profession, who have clearly stated, as a matter of professional conduct, that their members are prohibited from going out on strike. Yet we have government legislation which is saying that those lawyers who are not declared essential services under this legislation must go out on strike before they have access to collective bargaining arbitration which they presently have today.
It's not just a catch-22 situation, as I see it. This is actually taking away the rights crown employees presently have to live up to their professional obligation. They have no desire today to have the right to strike. They're quite satisfied with the process through the provisions of existing legislation to mediation and arbitration. Those rights were hard-fought-for by that professional body, and today we see a piece of legislation which is taking away their rights and forcing them to do something which is unprofessional if they want access to arbitration and the arbitration process.
I can understand the member for Willowdale's anxiety. As a lawyer, he understands the professional obligations imposed on lawyers by the law society. He knows that lawyers are part of a self-governing profession and that it is professional misconduct for them to go against the requirements of their profession.
I would suggest to the parliamentary assistant that, while he might want to discard some of the rhetoric we have heard, he listen carefully to the argument. I think it is a very legitimate argument that says you are placing lawyers in the employ of the government, crown officers, in an impossible situation where, in order to have their due and collectively bargain in a rational way and have access to mediation and arbitration and all of those things which they have today, in order to have access to that they must defy their professional body, the Law Society of Upper Canada. They must defy that body and go out on a strike, which is considered unprofessional.
I would suggest to the member that he consider very carefully the representations that have been made by the law society about what is and is not professional responsibility of lawyers. I know there are many lawyers in the province of Ontario today who feel that the New Democrats don't like lawyers. This piece of legislation, if it goes through as it's presently drafted, will give them additional ammunition.
I say to the parliamentary assistant quite seriously, without a lot of rhetoric, to please consider what you're doing. I'll say to him that there are many parts of this legislation that will have to be changed by future governments. Certainly this is one which is unfair to your employees, unfair to the lawyers who work for the government, and it is bad legislation. You have some time to make some changes, and I would suggest that you reconsider this.
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Mr Harnick: I'm just standing to say what a good speech that was from the member for Oriole. I appreciate those comments from someone who is not a lawyer, looking at this situation from maybe a little further away than I'm coming from. I'd like to say it's one of the very few speeches I've heard from the member for Oriole that was not full of rhetoric -- as she chuckles. I say in all sincerity that I appreciate the fact that she's made those very clear and concise remarks and that she essentially agrees with the remarks I put on the record.
I understand now, through the member for Etobicoke West, who's had some discussions with the parliamentary assistant, that the real issue here is the definition of "strike."
The parliamentary assistant seems to feel that a strike may be starting 15 minutes late every day or leaving 15 minutes early or taking longer coffee breaks, but I don't think the recognized judicial interpretation of strike is anything other than what everyone knows a strike is, and that's leaving the service of your employer. In this case, it's lawyers acting on behalf of the public withdrawing their services, because that is the judicial definition of a strike, particularly when they use the word "strike" in conjunction with the word "lockout." "Lockout" doesn't mean that the employer gives you 15 minutes less for your coffee break; it means that the doors are locked and you don't come to work at all.
I cannot subscribe in any way to the ridiculous definition of "strike" that the parliamentary assistant has conveyed through the member from Etobicoke to me. Quite frankly, I think it would be a very, very irresponsible thing to pass this amendment to section 34, because all it is doing is forcing a group of people who don't want the right to strike to go through a period of strike in order to get their binding arbitration.
I don't think that is at all fair; furthermore, it puts those same employees in a conflict with the rules of professional conduct as prescribed by the Law Society of Upper Canada. Effectively, those rule say that lawyers cannot withdraw their services arbitrarily from those they are serving. They can't let their own personal interests, which might be to get more money if they were in the middle of a negotiation with the government -- it's contrary to the rules of professional conduct for a lawyer's personal interests to stand in the way of the client he serves.
In this case, it's the government of Ontario that these lawyers serve as their client indirectly; directly, it's the public these lawyers serve. They do not want to be put in a position where they are forced, without it being their will, to withdraw their services to the public they serve, and serve very well, I might tell you.
I think the parliamentary assistant and the minister should seriously consider what they're doing to this group of very professional public servants.
Mr Turnbull: All I can conclude is that collective amnesia has set in with the government members. I don't have the exact quote and I'm going from memory, but it ran something like this: When Bob Rae formed the government in 1990, he said, "We'll make mistakes, but when we make mistakes, we'll admit it."
Under any concept, one would have to conclude that the government has goofed here. Clearly, what it is doing is writing legislation which would force these employees into a breach of the rules of conduct of their association. Is that seriously what the government wants to do? I'd like the government to just 'fess up and tell us: Is it your intention that you want these lawyers to break the rules of professional conduct? Otherwise, please admit you've made a mistake and you'll fix it. There are only two possible alternatives.
I know the parliamentary assistant has suggested, "They can just work slowly," but read the section, sir. Read it and you can only come to the conclusion, if you read it, that you have to strike. Under those circumstances, I would suggest that surely to God you're not really wanting to put these people into a conflict, but please tell me, do you want these people to be forced into a professional misconduct, or have you made a mistake and you're going to fix it? One or the other.
Mr Cooper: If I may refer to the Labour Relations Act, under "strike," it says, "Strike includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees designated to restrict or limit output." That is the rule of strike.
What we're saying is that the lawyers don't have to withdraw their services from a client they have already; we're saying don't take on new clients. That wouldn't put them in a compromising situation. I might remind the members also that they do have access to voluntary interest arbitration under this act.
Mr Stockwell: Section 34, the amendment, deals with essential service agreements, is that correct?
Mr Cooper: Essential services are included in here, but basically what they're talking about is the way to get to arbitration as a backstop. What we want is the right to strike in line with the Labour Relations Act, which we agree with, and then the fail-safe provisions where you could have final offer selection or binding arbitration or mediation-arbitration.
Mr Stockwell: I understand that much. I ask you directly, are the parties we're speaking about now considered an essential service?
Mr Cooper: If you're referring to crown attorneys, as was brought up by the member for Willowdale, they are included under essential services. In response to one of the issues he raised about the crown attorneys who aren't in the courtroom, if they're necessary to avoid the disruption of the court, then they will also be deemed as essential services.
Mr Stockwell: Okay, now we've established the fact that they're essential services. Crown attorneys, we've established, are essential services. This is debatable now.
Mr Cooper: There will be only a certain number that will be deemed as essential services under the essential services. That will be negotiated between the employer and the bargaining agent, how many will be deemed as essential services. We are not saying that 100% of them will be deemed as essential services.
Mr Stockwell: We're then suggesting that not all crown attorneys will be essential services. Some portion of crown attorneys will be essential services. Let me just get this straight. You're suggesting that not all crown attorneys are essential services, just the ones who end up in litigation in the courtroom itself?
Mr Cooper: The essential services are laid out, and it'll be whoever is necessary to avoid the disruption of the courts. That will be between the employer and the employees, and the labour board if they can't agree.
Mr Stockwell: I welcome the new Chair here, Madam Chair.
I put this question: We have not made this determination and it's open for negotiations; we are now going to negotiate which crown attorneys are essential and which crown attorneys are not essential, is that correct?
Mr Cooper: Yes, and the thing that will be brought into consideration is to avoid disruption of the courts.
Mr Stockwell: Okay. Now we've determined that to avoid disruption of the courts, we're going to determine which crown attorneys are essential and which aren't.
The next question is, assuming that we've made that determination, you're suggesting to us that if these crown attorneys would like to strike, withdraw services, slow down etc, they must do that before they can make application; in bargaining units, there'd have to be a strike or lockout for at least 10 days, these non-essential crown attorneys. Is that what you're suggesting?
Mr Cooper: That's correct.
Mr Stockwell: Okay. Therefore, has anybody in your ministry told you that they believe there are such things as non-essential crown attorneys?
Mr Cooper: Nobody has directly told me that because they haven't sat down and bargained that; that's part of the bargaining process. They will sit down and determine who would be deemed essential and then they would determine who is not essential.
Mr Stockwell: He's getting an update, so I'll let him get the update; maybe he'll learn. I guess the question is, has anyone given any thought to the fact that there may not be any non-essential crown attorneys?
Mr Cooper: In their preliminary deliberations, they've determined that there would be a fairly large number that would be deemed as essential services, somewhat the same way they have done in corrections, where there'll be a fairly large number that would be deemed as essential but they haven't deemed that 100% would be essential.
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Mr Stockwell: But you met with the crown attorneys to ask them whether or not they consider all or just some of their crown attorneys essential.
Mr Cooper: I personally haven't. There was a meeting between myself and the lawyers that was set up, but I was supposed to be on House duty at the time, because we thought Bill 117 would be coming in the House during the day when we had the threat. My executive assistant was there at that time, but no, I haven't personally sat down. We do have the understanding that there has never been an agreement here between the crown attorneys and ourselves.
Mr Stockwell: Okay. So we're going to say a large number, 85%, of the crown attorneys, declare them essential; 15% are non-essential. Then those 15% will withdraw services for 10 days and that will get them to arbitration. Is that this complete portfolio? That's basically the professional approach you're asking the lawyers to take?
Mr Cooper: Somewhat. First of all we aren't deeming; it will be negotiated how many are essential. Then they would go to the Ontario Labour Relations Board and the Labour Relations Board may not deem that arbitration is necessary and that free collective bargaining can proceed, in which case they would continue to bargain. They wouldn't get arbitration at that moment.
Mr Norman W. Sterling (Carleton): I can't believe this. What it comes down to then, as I understand it, is that 15% of the lawyers are then going to have to carry the burden for all of the lawyers in order to get to the next stage of the process. Why, if you're including only 15% going through the striking process, bother at all? Why have this kind of a structure, if in fact you're going to throw the burden of the 900 lawyers on to 200 to take the hit in order to get to the next stage of binding arbitration? Do you think that's fair? You're asking 150 to 200 lawyers out of the 900 to go without pay for 10 days while their compatriots, the other 700, go with full pay in order to get to the next stage of the process. Is that what you're asking these 150 to 200 lawyers to do on behalf of their colleagues?
Mr Cooper: If they choose to organize and bargain on the full range of things, that's exactly what would happen. There are other options they can follow.
Mr Turnbull: Following that logic, you are asking that 15% to then be in breach of their rules of professional conduct. The parliamentary assistant is nodding his head and saying no, but how can you possibly read it that way? If they go on strike, they are in breach of their professional rules.
The other aspect I want to speak to is the fact that you read out a definition as to what you call a strike. The fact is that if you're withdrawing your services in any way, which can be a slowdown, which is considered to be withdrawing services, you're striking. If you're withdrawing your services, that is professional misconduct.
You're trying to slide one way and then the other. Either way -- it doesn't matter which way you slide -- you're wrong on this one, because they are deemed to be in breach of their rules of conduct, if they strike, that 15%; or if you apply it to all of the group and you're saying they're slowing down, that is in breach. That is deemed to be withdrawing services. Under those circumstances, they are in breach of the rules of conduct of their association. Both ways, you're putting these people in an untenable situation.
I want you to tell me, if these people are in contempt of court for being on strike, what exactly do you propose that these people should do in their professional lives?
The Acting Chair (Mrs Margaret Marland): Do you care to respond, Parliamentary Assistant?
Mr Cooper: I think this has all been covered and I think what we've done is we've reached an impasse. We aren't asking people who are deemed as essential services to disrupt the courts. If it's negotiated and they're essential services, they will continue to work. That's the agreement, because it's a negotiated agreement.
Mr Turnbull: That answer isn't satisfactory, because if you are saying that you are having 85% who are deemed to be essential services, that other 15% of people who you're saying have to bear the burden of having to go on strike -- I'm sorry; even if it's 1% and they go on strike, those people are in breach of their rules of conduct. Even if it was 1%, and you're saying 15%, what are you proposing that these people should do in terms of their professional career when you're saying you are going to force them into a strike which is a breach of the rules of conduct?
Mr Cooper: I think, as one final response, I've said it and I've said it often enough --
Mr Turnbull: No you haven't.
Mr Cooper: -- what we're doing is we're not telling them to withdraw services from clients they already have; what we're doing is telling them not to take on new clients, in which case they wouldn't be in breach. I think they can keep asking this and asking this in 10 different ways and they'll get the same response. They wouldn't be in breach if they just refused to take on new clients but still represented the clients they had.
Mr Sterling: So you're saying that if the government is being sued by somebody outside and a new file comes in to this lawyer who is non-essential, you'd say, "Okay, let the days go by when you have to respond to that suit, lose the suit as a result of not taking action." Is that what you're telling us, not to take on new files? Pardon me? I didn't hear your answer.
The Acting Chair: Parliamentary Assistant, do you wish to respond?
Mr Sterling: Can a lawyer not pick up a new file in order to defend the government of Ontario if somebody sues the government of Ontario?
The Acting Chair: Further debate on the amendment to --
Mr Sterling: I asked a question and I'm going to continue to ask the question until I get a response.
Mr Cooper: It's not question period.
Mr Sterling: I'm sorry, but this is the committee of the whole House. The response you have given is that you cannot take on a new file and therefore you want to put the government in jeopardy if it is being sued because they're on strike. Is that correct or is that incorrect? Yes or no?
Mr Bradley: And to think they're in charge of 10 million people.
Mr Cooper: Once a collective agreement is signed, then they can take on the case.
Mr Stockwell: This is unbelievable. I mean, these people are responsible, as the member for St Catharines said, for 10 million people. This is absurd. It's just actually scary; it's mind-boggling. Think about this, Parliamentary Assistant. I say with the greatest of respect that if a file is placed on the desk of a lawyer who's claimed to be non-essential and he's got to file a defence against a lawsuit, if he's deemed to be slowed down or working, or whatever you call it, cessation, you're telling me that he doesn't file a simple defence for a lawsuit because he's on strike. Is that what you're suggesting is going to happen?
The Acting Chair: Does the parliamentary assistant wish to respond? There's no requirement for the parliamentary assistant to respond.
Mr Stockwell: I understand there's no requirement. I also know the Minister of Housing walked by and told him not to respond any more. That's something they can do. But I ask this member very, very clearly, the difficulty about writing legislation is that yes, you have to deal with hypothetical situations, because that's what legislation is all about, and you must deal with those hypothetical situations. If they happen to come along, we need to ensure the legislation we write covers off all eventful or uneventful happenings. I ask the parliamentary assistant again --
Mr Turnbull: Or staff.
Mr Stockwell: Or his staff, exactly. The staff can answer this one; they're probably well briefed on this. If you've decided to work your slowdown -- and that seems to be about the only thing you can do, because you can't ask 15% to go on strike for the benefit of 100% -- if you've decided to slow down in your work and you say a lawyer will not take on any new files, if a file is placed on the desk and a simple defence needs to be filed, you're suggesting that they not file that defence on behalf of the 10 million or 11 million taxpayers in this province and just simply let what happens happen?
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The Acting Chair: Parliamentary Assistant? Further debate on the amendment to section 34? There's no further debate on the amendment to section 34 of the bill.
All in favour of this motion? Shall the motion carry? Carried.
Interjections.
The Acting Chair: I would like to clarify for the House that there has been prior agreement to have only voice votes on the government amendments and that the votes for the opposition amendments would be stacked.
Mr Harnick: On a point of order, Madam Chair: My understanding was that we would be stacking all of the opposition amendments and voice-voting the government amendments, and if there were any divisions we could divide on them, but we would be stacking them with the other issues.
Mr Stockwell: What's the big deal?
Mr Harnick: They're saying we can't now.
The Acting Chair: Member for Willowdale, I will read the agreement, which reads as follows:
"Before we call the first bill before the committee, there are a number of matters which the House leaders have agreed to which I will seek the consent of the committee of the whole to deal with.
"Firstly, that all the amendments to the bill will be read into the record at the time they're moved, but that we have an agreement that we will dispense with the re-reading of those motions when the questions are put.
"Secondly, Chair, that you will see that divisions on each of the opposition motions but that there will simply be voice votes on the government motions."
Mr Harnick: I can understand how we would have -- I mean, it's very nice of the government to say automatically every one of our amendments will be voted on by way of division tomorrow, but it seems to me that this agreement does not say that we are not permitted to vote or to divide on a particular item; it only says that it's automatic that every opposition motion will be voted upon tomorrow. All we're saying, Madam Chair, is that we can still divide on some of these issues, it just won't be automatic on every one, so that the onus is on the opposition, if we want to force a division on any of the sections on government amendments, that we have to have five people here. With respect, you're denying us the opportunity of a vote on a very difficult section. I don't think the interpretation you're giving that is the interpretation that was made when the agreement was made.
The Acting Chair: I would say in response to the member for Willowdale that there has been prior agreement made. If you would like to consult with someone else to find out what the prior agreement is that was made with your caucus, then that would be appropriate.
Mr Sterling: I haven't had an opportunity to talk to our House leader while this has been going on. The agreement understood by our House leader was that if we wanted a division, the critic could say, "We want a division," and you didn't even need five members to stand. That was it. We have indicated that we want a division, so we want a division.
May I also say that I don't even think that the government would object -- and let's get on with the debate -- whether we have a division or we don't have a division.
Hon Evelyn Gigantes (Minister of Housing): They're not talking about voting; they're just talking about a division.
Mr Sterling: No, we are talking about having a vote on this amendment tomorrow as it goes along. Quite frankly, the other part is, notwithstanding whatever our House leaders agreed to, if five members stand, we can have a vote. Five members stood and we're going to have a vote, and we'll have it tomorrow, if we'll agree to that.
Hon Ms Gigantes: Madam Chair, I don't believe there's a problem, if we understand what is being proposed by the Conservatives, that they wish to indicate a division. We are going to be stacking the votes by agreement and so I don't see what the problem is.
Mr Stockwell: The problem is they won't let us stack it.
The Acting Chair: This agreement that I was reading to the House was an agreement that was made in this chamber by all parties, by unanimous consent. If you wish to change what has been agreed upon, it may be achieved by, again, unanimous consent of the House to change it.
Mrs Caplan: Just have the consent and get on with it.
The Acting Chair: Is there unanimous consent?
Hon Ms Gigantes: Madam Chair, consent to what?
The Acting Chair: To stack the vote on a government amendment.
Hon Ms Gigantes: Of course. We agreed that we will stack all the votes. If they wish to stand five members to indicate a division when a division would have been seen under the agreement, we have no objection to five members standing.
The Acting Chair: I will advise the Minister of Housing that the agreement was to stack only the votes on the opposition amendments.
Hon Ms Gigantes: No, no.
The Acting Chair: I'm being advised by the clerk, who has read this in Hansard. If there's now consent that they may stack any votes on amendments either by the government or the opposition and there is unanimous consent on that -- there was agreement. I am advised that there was agreement that the opposition votes would be stacked without five members standing. Now we would like unanimous consent of the House that government amendments may be stacked with five members standing.
Hon Ms Gigantes: Yes, agreed.
The Acting Chair: All right, there is agreement. Thank you. Mr Cooper's amendment to section 34 of the bill has been stacked until tomorrow.
Mr Cooper has an amendment to section 35 of the bill. Would the parliamentary assistant like to move his amendment to section 35 of the bill.
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Mr Cooper: I move that section 35 of the bill be struck out and the following substituted:
"Working conditions
"35(1) If the board determines that meaningful collective bargaining has been prevented, the rates of wages and all other terms and conditions of employment and all rights, privileges and duties of the employer, the trade union and the employees in effect at the time of determination shall continue in effect, unless the employer and the trade union agree otherwise, until the earlier of,
"(a) the date on which a collective agreement is settled; or
"(b) the date on which the arbitration, if any, authorized under section 34 is completed.
"Reinstatement
"(2) Rates of wages or other terms and conditions of employment or rights, privileges or duties referred to in subsection (1) that are altered before the board's determination following a notice under section 14 or 54 of the Labour Relations Act shall be restored and continued in effect, unless the employer and trade union agree otherwise, until the earlier of,
"(a) the date on which a collective agreement is settled; or
"(b) the date on which the arbitration, if any, authorized under section 34 is completed."
The Acting Chair: Does the parliamentary assistant wish to speak to the government amendment?
Mr Cooper: These are just consequential amendments from section 34.
The Acting Chair: Is there any debate on the government amendments to section 35 of the bill?
In favour of the amendment moved by Mr Cooper to section 35 of the bill? Carried.
Shall section 35 of the bill, as amended, carry? Carried.
Another amendment, to subsection 36(1) of the bill.
Mr Cooper: I move that subsection 36(1) of the bill be struck out and the following substituted:
"When arbitration may begin
"(1) An arbitration authorized under section 34 may not begin, except with the consent of the parties, earlier than the time determined under subsection (2)."
The Acting Chair: Do you wish to speak to that amendment, Parliamentary Assistant? Debate on that amendment to subsection 36(1) of the bill?
All in favour? The government amendment to subsection 36(1) of the bill is carried.
Mr Cooper: I move that subsection 36(2) of the bill be amended by inserting "arbitrator or" before "board of arbitration" in the first line.
The Acting Chair: Do you wish to make any comments?
Mr Cooper: No.
The Acting Chair: Any debate on this amendment?
Mr Cooper has moved, on behalf of the government, an amendment to subsection 36(2) of the bill. Does that carry? Carried.
Mr Cooper has a second amendment.
Mr Cooper: I move that paragraph 2 of subsection 36(2) of the bill be amended by adding the following subparagraph:
"iv. negotiations required by an order made under section 34."
The Acting Chair: Does the parliamentary assistant have any comments on that amendment? Any debate on that amendment?
Does Mr Cooper's amendment to subsection 36(2) of the bill carry? Carried.
The parliamentary assistant has a further amendment.
Mr Cooper: I move that paragraph 3 of subsection 36(2) of the bill be amended by adding "or" at the end of subparagraph i and by striking out subparagraph ii.
The Acting Chair: Do you have any comments, parliamentary assistant? Any debate on that amendment?
Does Mr Cooper's amendment to subsection 36(2) of the bill, paragraph 3, carry? Carried.
Shall section 36 of the bill, as amended, carry? Carried.
Section 37 of the bill: Mr Cooper, do you have an amendment?
Mr Cooper: I move that section 37 of the bill be struck out and the following substituted:
"Limitation on arbitration decision
"37. A decision on an arbitration authorized under section 34 shall not include any term relating to pensions, staffing levels or work assignments."
The Acting Chair: Do you have any comments, Mr Parliamentary Assistant?
Mr Cooper: No.
The Acting Chair: Any debate on this amendment?
The government has moved an amendment to section 37 of the bill. All in favour of that amendment? Carried.
Shall section 37 of the bill, as amended, carry? Carried.
Mr Cooper has an amendment to section 38 of the bill.
Mr Cooper: I move that section 38 of the bill be struck out.
The Acting Chair: Mr Cooper, this motion is out of order. It is simply in order to vote against that section.
Mr Cooper: Thank you, Madam Chair. Under certain conditions, I would ask for unanimous consent to accept this motion, but due to the nature of the motions in the House, we'll just recommend that we vote against the section.
The Acting Chair: Shall section 38 of the bill carry? Section 38 of the bill is lost.
Shall section 39 of the bill carry? Carried.
Mr Cooper has an amendment to subsection 40(4) of the bill.
Mr Cooper: I move that paragraph 4 of subsection 40(4) of the bill be amended by adding at the end "If the Lieutenant Governor in Council or the delegate does not make the selection, the chair of the Grievance Settlement Board shall select the persons to be appointed."
The Acting Chair: Do you have any comments on that amendment, Mr Cooper? Any debate on the amendment to subsection 40(4) of the bill?
Does Mr Cooper's amendment to subsection 40(4) of the bill carry? Carried.
Does section 40 of the bill, as amended, carry? Carried.
Shall sections 41 and 42 of the bill carry? Carried.
Mr Cooper has an amendment to section 43 of the bill.
Mr Cooper: I move that subsections 43(2) and (3) of the bill be struck out and the following substituted:
"Effect of agreement
"(2) Upon receiving notice of an agreement from a party, the Grievance Settlement Board shall give effect to it to the extent that its schedule permits.
"Same
"(3) The Grievance Settlement Board shall cease to give effect to an agreement upon receiving notice from a party that the party no longer wants the agreement to apply."
The Acting Chair: Does the parliamentary assistant have any comments to make? Any debate on this amendment?
Does the amendment to subsections 43(2) and (3) of the bill carry? Carried.
Does section 43 of the bill, as amended, carry? Carried.
Do sections 44 and 45 of the bill carry? Carried.
The parliamentary assistant has an amendment to section 46 of the bill.
Mr Cooper: As in the previous one we had, where I would have moved that section 46 of the bill be struck out, I'll be recommending that the government vote against this section.
The Acting Chair: Does section 46 of the bill carry? Section 46 is defeated.
Shall section 47 of the bill carry? Carried.
The parliamentary assistant has an amendment to section 48 of the bill.
Mr Cooper: I move that subsection 48(3) of the bill be struck out and the following substituted:
"Exception
"(3) This section does not apply with respect to a bargaining unit established under section 21.2."
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The Acting Chair: Does the parliamentary assistant have any comments on that amendment? Is there any debate on that amendment? Does subsection 48(3) of the bill, the amendment, carry? Carried.
Does section 48 of the bill, as amended, carry? Carried.
Mr Turnbull, you have an amendment to section 49?
Mr Turnbull: I move that section 49 of the bill be amended by adding the following subsection:
"Bargaining agents
"(2) Subsection (1) does not apply to the bargaining agent for employees currently employed as landscape architects, psychiatric nurses and correctional officers, who shall be given the right to select a new bargaining agent."
The Acting Chair: Does the member for York Mills have any comments on that amendment?
Mr Turnbull: This relates, as I said, to the landscape architects, psychiatric nurses and correctional officers who are currently members of OPSEU and have expressed a desire to opt out. They would like to be in PEGO but have no option to join PEGO, and this would allow them that.
The Acting Chair: Further debate? All in favour of Mr Turnbull's amendment to section 49 of the bill? The vote on that amendment will be taken tomorrow, as it has been agreed to be stacked.
The parliamentary assistant has an amendment to subsection 50(6) of the bill.
Mr Cooper: I move that section 50 of the bill be amended by adding the following subsection:
"Effect of designation
"(6) The establishment of bargaining units under section 21.2 and the designation of a bargaining agent under section 21.3 does not affect the operation of a collective agreement in force at the time of the designation."
The Acting Chair: Does the parliamentary assistant have any comments on that amendment? Any debate on that amendment? Does the government amendment to subsection 50(6) of the bill carry? Carried.
Does section 50 of the bill, as amended, carry? Carried.
A government amendment to section 51 of the bill; the parliamentary assistant.
Mr Cooper: I move that section 51 of the bill be struck out and the following substituted:
"Bargaining
"(1) If notice to bargain is given under subsection 8(1) or 22(1) of the old act before this subsection comes into force but a collective agreement has not been made, the old act continues to apply until a collective agreement is made.
"Exception
"(2) Despite subsection (1), the parties may agree that the old act ceases to apply before the collective agreement is made.
"Exception
"(3) This section does not apply with respect to a bargaining unit established under 21.2."
The Acting Chair: Does the parliamentary assistant wish to make any comments? Further debate on this amendment? Does the government amendment to section 51 of the bill carry? Carried.
Does section 51 of the bill, as amended, carry? Carried.
Does section 52 of the bill carry? Carried.
Section 53 of the bill; the parliamentary assistant has an amendment.
Mr Cooper: We were going to move that this section be struck out, but as in previous things, I recommend that the government vote against this section.
The Acting Chair: Does section 53 of the bill carry? Section 53 of the bill is defeated.
A Liberal motion.
Mrs Caplan: In fact, I had intended as well to move that section 53 of the bill be struck out. I know the government has moved that, so it won't be necessary for me to move my amendment. I would like to move that section 53.1 of the bill also be amended.
I move that the bill be amended by adding the following section:
"Pensions not negotiable
"53.1 Pension benefits for crown employees shall not be the subject of collective bargaining, unless the parties agree otherwise."
The Acting Chair: Does the member for Oriole wish to speak to her amendment?
Mrs Caplan: I believe it's not in the public interest for the government to pursue the course it has and permit that pensions be negotiable. One of the concerns I've had with this legislation is that it ties the hands of future employers, future governments; that it permits bargaining for issues which have never been considered negotiable before. I think this sets a precedent which we should all be concerned about, simply because of the way the civil service negotiates.
There are proposed six individual and separate bargaining units. The concern about how you would begin to negotiate pensions -- it seems to me my amendment is a very reasonable one. What that says is that pensions could only be on the negotiating table if both the employer and the employees agree that that be bargainable. Under this legislation, it will automatically be a right of the employees to negotiate enhanced pensions.
I don't think there's anything that makes some of my constituents angrier than what they see as a very rich pension benefit which is received by people in the broader public sector. We know there are many in the private sector who do not have pensions, and it seems to me that at a time when taxpayers are very concerned about increased taxes, at a time when they are concerned about very rich pensions, for the NDP government to make negotiations of those pensions a matter which by law is a requirement is not in the public interest.
I would ask the government, in the interest of the public, in the interest of the taxpayers, to consider supporting the amendment I have put forward, which doesn't say you can never negotiate pensions but does require consent from both the employer and the employee groups before you can have pensions negotiated. I think it's a thoughtful and reasonable approach. Never before in the history of Ontario has there been a legislative right to negotiate pensions, and now is not the time to proceed with that in a way which will bind future governments.
Mr Turnbull: Certainly it is inappropriate that this government should attempt to bind any future government, but on the other side of this argument, it is appropriate that we should give the flexibility that there can be bargaining for pensions.
The member for Oriole takes the view that this would be upward pressure on pensions. I would suggest to you that when you consider the state of finances of this province, perhaps the converse might be the case, and this is one of the few things we find some merit in in this section of the bill. Perhaps it is appropriate that that be a negotiated aspect, but it should certainly not bind any future government.
Mr Cooper: One of the whole reasons for what we're doing right now is to expand the scope of bargaining. I might remind the member for Oriole that pensions will be negotiated centrally, at the central table; they won't be negotiated at six or seven different levels.
Mrs Caplan: I feel this is a very important issue. I'd make the comment to the parliamentary assistant that all you have to do is look at the lack of success the government had negotiating at a central table the so-called social contract and you can understand why I'm concerned about the ability of the government, at a central table, to negotiate something like pensions for Ontario public servants.
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I'd also suggest to the member for York Mills that history has suggested that very rarely have we ever seen anything negotiated in a downward way, particularly for something which is not seen in the public eye openly and with an understanding of what exactly is being negotiated.
Something like pensions can have a huge impact on not only civil servants but on the taxpayers. I'll use this as an example: When the Conservative government in the late 1970s approved a teachers' pension plan without properly funding that plan, we know what chaos resulted for future governments which attempted to bring in legislation to correct that flaw.
What I am pointing out is, we have seen examples of governments make serious mistakes around pension negotiations. It seems to me that to legislate it, to put it into law that "You must negotiate on pensions," ties the hands of future governments and could result in the same kind of chaos as we saw result from the terrible, disastrous approach to pension funding and negotiations from the previous Conservative government.
The Acting Chair: Further debate on the Liberal motion to subsection 53(1) of the bill? Mrs Caplan has moved subsection 53(1) of the bill. Does this amendment carry? That vote will be stacked until tomorrow.
A government motion to subsection 54(6) of the bill.
Mr Cooper: I move that subsection 54(6) of the bill be amended by striking our "part V" in the second line and substituting "section 10."
The Acting Speaker: Do you have comments? Any debate on this motion? Does the government motion, the amendment to subsection 54(6) of the bill, carry? Carried.
Does section 54 of the bill, as amended, carry? Carried.
Section 55; the member for Oriole.
Mrs Caplan: It might be appropriate at this time to attempt to move a new section. The concern I have, and I seek direction from the Chair, is this: Section 53 was struck out of the bill by a negative vote from the government benches, and along with that was struck out the opportunity to amend that part of the legislation that would have dealt with the seniority commitment the government made to its own employees. It seems to me that a new section might be appropriate, and I would seek your wisdom as to when it would be proper for me to number a new section that would deal with seniority. This was originally in 53(8.1) of the bill.
I want to thank the clerk for advice on how I can move this new section. This would be a new subsection 53.2.
I move that a new section 53.2 of the bill be added by adding the following section:
"Seniority etc
"Employees who were not members of any bargaining unit before bargaining units are designated under this bill and who become members of a designated bargaining unit,
"(a) shall be deemed to have seniority for all purposes equal to the length of their continuous service in the Ontario public service; and
"(b) shall be entitled to benefits equal to those to which they were entitled before becoming members of a bargaining unit."
The Acting Chair: Does the member wish to speak to that amendment?
Mrs Caplan: Yes, I would. I was in this House and heard consecutive chairmen of Management Board give commitments on behalf of this government that when it moved forward with amendments to change the Crown Employees Collective Bargaining Act, it would ensure the seniority rights for those people who had been part of the excluded class and who were being forced to join a bargaining unit.
I was very distressed today to receive this comment from the Association of Management, Administrative and Professional Crown Employees of Ontario, AMAPCEO. The Premier is here tonight and he has the opportunity on behalf of his government to make sure that a commitment that was given in this House, that was given to the provincial employees and that was given on the record in Hansard is lived up to by his government. I quote from the letter written by AMAPCEO:
"We remain concerned about a number of the decisions that the government has made re Bill 117. However, the purpose of this letter is to raise a critical issue that the government does not appear to have addressed: the protection of currently excluded employees' seniority and benefits. Although the government has publicly committed itself to provide such protection, including the Chair of Management Board's statement in the House on release of the employers' report, neither Bill 117 as introduced, nor the intended amendments as discussed with us this morning, will ensure this protection.
"This protection is needed on a permanent basis for the 2,000 employees that the government intends to move into OPSEU, and on a temporary basis at least until negotiations of a first collective agreement for those employees who become members of the new bargaining unit. Given OPSEU's earlier public statements that currently excluded employees moved into its bargaining unit would lose both their seniority and MCO days, it is particularly important that these rights are legislatively protected so that they cannot be negotiated away.
"For this reason, we urge the government to include an amendment to Bill 117 that will legislatively require that the years of continuous service in the Ontario public service of currently excluded employees be equivalent to their seniority for all purposes under any collective agreement and that their MCO days or the equivalent salary will be maintained."
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I say to the parliamentary assistant, you made a commitment to these employees that they would not be disadvantaged when they were unionized. I've moved an amendment which would give them the protection you haven't given them to this point in time. I would ask for you to support that amendment simply to live up to your word, to the word of your Premier, to the word of your chairs of Management Board when you told these people they would not have their rights and privileges of seniority removed from them at a time when you moved them into bargaining units.
The Acting Chair: Further debate on this motion?
Mr Turnbull: This once again is an amendment from the Liberals of which I don't have a copy. We have some of the Liberal amendments but we don't have all of them.
I have an amendment which I will be moving under 56.1 of the bill and I have that same letter the member was reading from. It is aimed at ensuring that these promises that have been made by the Premier but are not in the bill are reflected in the bill. Quite frankly, the employees of the government don't trust the government. They don't trust the elected government because they have no reason to trust it from its conduct in the past, so it's essential that we get some wording in this bill to guarantee these employees these seniority rights.
I cannot comment on the Liberal amendment because I don't have a copy of the amendment.
Mr Cooper: I'll be speaking against this amendment for a number of reasons. In the statement to the Legislature by the Honourable Dave Cooke, Chair of Management Board of Cabinet, on the reform of the Crown Employees Collective Bargaining Act on October 7, 1992, he stated:
"The government has made the following decisions:
"Full seniority will be guaranteed to employees who become part of a bargaining unit.
"Employees currently receiving an additional five days of leave under the management compensation option and who as a result of the proposed CECBA reform are moved into a bargaining unit will continue to receive an additional five days or a salary equivalent."
Also, in a letter from David Agnew to all members of the Ontario public service, dated October 8, 1992, he states: "Here are the major decisions the government has made. Full seniority will be guaranteed to employees who become part of a bargaining unit, and MCO days or salary equivalent will continue for those employees who are moved into a bargaining unit and receive MCO days today."
Also, we have a letter from Fred Upshaw, the president of the Ontario Public Service Employees Union, dated November 1992, and it's to all excluded employees in the Ontario public service. It states: "Your seniority will be protected by our collective agreement if you join an existing OPSEU bargaining unit. If you become part of another bargaining unit, your seniority would apply within that bargaining unit."
From the current OPSEU agreement, under article 25, seniority and length of continuous service, effective February 3, 1992, "An employee's length of continuous service shall commence from the date of appointment to the classified service, from the date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his full-time employment back to the first break in employment which is greater than 13 weeks. Unbroken service is that which is not interrupted by separation from the public service."
So obviously the employees will be included, and they don't have to worry about seniority and there's no need for this piece in the legislation.
Mrs Caplan: What the parliamentary assistant has just read into the record is all well and good, but that's not legislated protection. What you have from your own employees requesting is an amendment to this legislation that will enshrine in the law what you have just read into the record. You should have no objection to that if you mean it.
The other thing is that in this legislation we have all kinds of provisions put in which are of great concern to people. Here we have a concern about something which has been left out, and you could very easily include it in the legislation without having an impact. You've read into Hansard all of those nice statements, but frankly, they don't trust you. They will feel more secure if they have that commitment enshrined in the law. There's no reason for you not to do it if you mean it.
Mr Cooper: As I stated, it's enshrined in the collective agreement which they will be a party to and there's no need to put it in legislation.
Mr Turnbull: The reason we'd like to see this in the legislation is because the very source material that you read into the record is a letter from David Agnew, who is now the head of the civil service, and I will remind you he was of course the campaign chairman of the NDP in the last provincial election. I would suspect he had more than just a little passing hand in this infamous document called Agenda for People, which isn't worth the paper it was written on, other than for the opposition parties to shove it down your yap at every opportunity.
The Acting Chair: The member for Oriole has moved section 53.2 of the bill. Shall the motion carry? We will defer the vote until tomorrow.
Does section 55 of the bill carry? That section is carried.
Does section 56 of the bill carry? Carried.
The member for York Mills has an amendment to add 56.1, which is a new section of the bill.
Mr Turnbull: I move that the bill be amended by adding the following section:
"Seniority
"56.1(1) A crown employee as defined in the Public Service Act who was not a member of a bargaining unit under the old act and becomes a member of a bargaining unit after December 13, 1993, shall have seniority, service or any similar measure under a collective agreement determined for all purposes under the collective agreement, on the basis of continuous length of service with his or her employer.
"(2) Subsection (1) prevails over any provision of collective agreement.
"(3) Despite subsections (1) and (2), the parties to a collective agreement may alter the provisions respecting seniority, service or any similar measure provided the parties make a joint application to the board and the application is granted.
"(4) The board shall grant the application made under subsection (3) if the board is satisfied that the alteration treats employees described in subsection (1) fairly and equitably."
The Acting Chair: Do you have any comments?
Mr Turnbull: The thrust of this amendment is the same as the Liberal amendment which was just discussed under a previous section, but the wording of this amendment exactly tracks the wording recommended by AMAPCEO in its request to us. We're simply putting forward what that group of crown employees would like to see in the bill.
The Acting Chair: Mr Turnbull, the member for York Mills, has moved section 56.1 of the bill. Shall the motion carry? That vote is deferred until tomorrow.
Mr Turnbull: I move that the bill be amended by adding the following section:
"MCO days
"56.2(1) A crown employee as defined in the Public Service Act who was entitled to accumulate compensation option credits under the Public Service Act prior to proclamation of this act; and who becomes a member of a bargaining unit, shall continue to be entitled to all compensation option credits accumulated prior to becoming a member of a bargaining unit and shall be entitled to continue to accumulate and to use such options in accordance with the terms and conditions established under the regulations to the Public Service Act as they existed on December 13, 1993.
"(2) Subsection (1) prevails over the provision of any act, regulation or provision of a collective agreement.
"(3) Despite subsection (1), the parties to a collective agreement may alter the provisions respecting compensation option credits provided the parties make joint application to the board and the application is granted."
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The Acting Chair: Does the member for York Mills have any comments on the amendment?
Mr Turnbull: Yes. Once again, the wording is directly from AMAPCEO and is related to the previous issue.
I do apologize. I did not turn over the page and so therefore I have not read the full amendment.
"(4) The board shall grant the application where it is satisfied that the parties have substituted provisions equivalent in value to ongoing entitlement to the compensation option credits altered.
"(5) Where the substituted provisions referred to in subsection (3) continue to exist in a collective agreement, the provisions of subsection (1) do not apply.
"(6) The provisions of subsections (3), (4) and (5) shall apply with all necessary modifications to any alteration of substituted provisions referred to in subsection (4)."
The Acting Chair: Do you have any further comment on your amendment?
Mr Turnbull: No, I'd already made my comment.
The Acting Chair: Further debate? All in favour of section 56.2 of the bill? That vote is deferred until tomorrow.
Government amendment to subsection 58(5) of the bill.
First, shall section 57 of the bill carry? Carried.
Mr Cooper: I move that subsection 28.1(2) of the act, as set out in subsection 58(5) of the bill, be struck out and the following substituted:
"General prohibition
"(2) No crown employee shall engage in political activity in the workplace.
"Same
"(2.1) No crown employee who is wearing his or her uniform shall,
"(a) publicly engage in an activity described in clause (1)(a) or (b);
"(b) engage in an activity described in clause (1)(c)."
The Acting Chair: Any comments, parliamentary assistant? Further debate?
All in favour of the government amendment to subsection 58(5) of the bill? Carried.
Parliamentary assistant, a further amendment to subsection 58(5) of the bill.
Mr Cooper: I move that paragraph 4 of subsection 28.4(1) of the act, as set out in subsection 58(5) of the bill, be amended by striking out "crown employee" in the first line and substituting "civil servant."
The Acting Chair: Comments, Mr Cooper? Further debate? All in favour of the government motion, subsection 58(5) of the bill? Carried.
Further government motions?
Mr Cooper: I move that clause 28.4(2)(c) of the act, as set out in subsection 58(5) of the bill, be struck out.
The Acting Chair: Comments from the parliamentary assistant? Further debate? Shall the government amendment carry? Carried.
Further amendments?
Mr Cooper: I move that paragraph 3 to section 28.5 of the act, as set out in subsection 58(5) of the bill, be amended by striking out "the last day for the nomination of candidates" in the seventh and eighth lines and substituting "the last day for nominating candidates under the applicable provincial or federal statute."
The Acting Chair: Comments from the parliamentary assistant? Further debate? All in favour of the government amendment to subsection 58(5)? Carried.
Government amendment?
Mr Cooper: I move that clause 28.9(1)(a) of the act, as set out in subsection 58(5) of the bill, be amended by striking out "28.4(2); or" in the third line and substituting "28.4(1)."
The Acting Chair: Comments by the parliamentary assistant? Further debate? Does the government motion carry? Carried.
Parliamentary assistant, further government motion?
Mr Cooper: I move that subsection 28.9(1) of the act, as set out in subsection 58(5) of the bill, be amended by adding "or" at the end of clause (b) and adding the following clause:
"(c) is threatened with an action described in clause (a) or (b)."
The Acting Chair: Does the parliamentary assistant have any comment? Further debate? Does the government motion to subsection 58(5) of the bill carry? Carried.
Further government amendment?
Mr Cooper: I move that subsection 28.9(4) of the act, as set out in subsection 58(5) of the bill, be amended by striking out "or in the categories described in subsection 28.4(2)" in the third and fourth lines.
The Acting Chair: Do you have any comments? Further debate? All in favour of the government motion to subsection 58(5), section 28.9 of the act? Carried.
Government amendment to subsection 58(6) of the bill.
Mr Cooper: I move that subsection 28.16(6) of the act, as set out in subsection 58(6) of the bill, be struck out and the following substituted:
"Employee not liable
"(6) No employee is liable to prosecution for an offence under any act,
"(a) for copying a record or disclosing it to the counsel in accordance with this section; or
"(b) for disclosing information to the counsel in accordance with this section."
The Acting Chair: Further debate? All in favour of the government motion, subsection 58(6) of the bill? Carried.
Government motion to subsection 58(6) of the bill.
Mr Cooper: I move that subsection 28.17(5) of the act, as set out in subsection 58(6) of the bill, be struck out and the following substituted:
"Exception, grave danger
"(5) Despite subsection (1), if the counsel believes on reasonable grounds that it is in the public interest that information disclosed by an employee be disclosed to the public or persons affected and that it reveals an imminent grave health or safety hazard to any person or an imminent grave environmental hazard, the counsel shall, as soon as practicable, disclose that information to the head of the institution to which it relates."
The Chair (Mr Gilles E. Morin): Any debate? Further questions or comments? Shall the amendment carry? Carried.
Parliamentary assistant?
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Mr Cooper: I move that subsection 28.18(2) of the act, as set out in subsection 58(6) of the bill, be amended by striking out "and" at the end of clause (a), adding "and" at the end of clause (b) and adding the following clause:
"(c) the information that may be included in the notice given under section 28.20 is sufficient to enable the head to conduct an investigation into the matter."
The Chair: Any questions? Any comments? Shall the amendment carry? Carried. Parliamentary assistant.
Ms Sharon Murdock (Sudbury): No, there's a Liberal motion before this.
The Chair: Subsection 58(6).
Ms Murdock: Oh, yes, sorry. My apologies.
Mr Cooper: I move that subsection 28.20(4) of the act, as set out in subsection 58(6) of the bill, be amended by striking out "The counsel may, with the consent of the employee, delete" in the first and second lines and substituting "The counsel shall, with the consent of the employee, delete."
The Chair: Any questions or comments? Shall the amendment carry? Carried.
It is now an opposition motion.
Mrs Caplan: Subsection 58(6) of the bill, subsection 28.21(9.1) of the act:
I move that section 28.21 of the act, as set out in subsection 58(6) of the bill, be amended by adding the following subsection:
"Second report required
"(9.1) If the head severs information under subsection (6) or (7), the head shall provide the counsel with a second report containing the severed information."
The Chair: Any questions? Any comments? Shall the amendment carry?
Mrs Caplan: I'd like to speak to it. I know that for people watching this, they're going to think that's a very technical amendment, so I'd like to explain it if I could.
The reason for this amendment is to ensure that the public's right to know under the freedom of information act is protected. What this amendment would do is make sure that the public would have the right to know. Not only would the employee be protected in cases of whistleblowing, but a second report would be required. That would then ensure the public's right to know is protected.
The Chair: Any further questions or comments? Shall the motion carry? No? All those in favour will please say "aye."
The vote is stacked until tomorrow.
Mrs Caplan: Let me try another one, Mr Speaker, because I feel very strongly --
The Chair: Just a minute, please. I think the next one is a government motion. Parliamentary assistant.
Mr Cooper: I move that subsection 28.29(2) of the act, as set out in subsection 58(6) of the bill, be struck out.
The Chair: Any questions or comments? Shall the motion carry? Carried. The next one is you.
Mrs Caplan: I'm going to try again, because I feel --
The Chair: Just a moment, please. Do we have a comment? The member for York Mills.
Mr Turnbull: I have an amendment to 28.20. We're out of order and you haven't called that.
The Chair: Just a moment, please. We'll check it out. We'll be with you in a moment. In the meantime, we'll deal with the motion brought in by the official opposition.
Mrs Caplan: Subsection 58(6) of the bill, subsection 28.38(1.1) of the act:
I move that section 28.38 of the act, as set out in subsection 58(6) of the bill, be amended by adding the following subsection:
"Exception
"(1.1) Despite subsection (1), the counsel may disclose records that are in his or her custody or under his or her control to the commissioner if the disclosure is necessary to an appeal under the Freedom of Information and Protection of Privacy Act."
The Chair: Any questions or any comment?
Mrs Caplan: Speaking to this, in the whistleblowing provisions of this legislation, I believe there are some places where we can protect the public's right to know. Some of the concerns I have are that while the intention of the act is good, it doesn't go far enough as far as disclosure in the public interest is concerned. The amendment I've just put forward I think would be one which could be considered a friendly amendment and which clarifies the government's obligation to make information available where there has been an appeal under the Freedom of Information and Protection of Privacy Act.
I feel very strongly about government being as open as possible. I feel strongly about government being as accountable as possible. The Freedom of Information and Protection of Privacy Act is a statement by government of its obligation both to give access by the public to information as well as to protect personal privacy. This legislation, in my view, restricts those rights, and the amendment I have put forward will make sure that the public's right to know is protected.
The Chair: Any further questions or comments on Mrs Caplan's motion? Shall the motion carry? The vote will be deferred for tomorrow.
There is another motion from you, Mrs Caplan.
Mrs Caplan: I can see that the government's not accepting very many amendments, but I'm going to try and move it anyway, because I think its approach in the legislation on this particular section really is misguided. I don't think it's in the public interest.
I'm referring here to subsection 58(6) of the bill, subsection 28.38 of the act. This goes on about, "Unless this act specifically authorizes their disclosure, records in the custody or under the control of the counsel shall not be disclosed to any person outside the office of the counsel," and it goes on to those provisions.
I move that paragraph 3 of subsection 28.38(2) of the act, as set out in subsection 58(6) of the bill, be struck out.
The Chair: Is there any discussion?
Mrs Caplan: In speaking to this, what I'm trying to do here is to remove an exception that again inhibits the public's right to know. I feel very, very strongly that there are some provisions of this legislation which in fact do the opposite of what it is purported to do in the name of whistleblowing. It seems to me that the paragraph I've just referred to in section 28.38 should be deleted and the public's right to know should be protected.
The Chair: Any further questions or comments? Shall the motion carry? The vote is deferred for tomorrow.
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Mr Turnbull, you had some motions. I would accept that you now read your amendment.
Mr Turnbull: There was a drafting error. It should read:
I move that subsection 28.20(2) of the act, as opposed to the bill, be deleted and the following substituted:
"(2) If, because of the nature of the information, the counsel believes it would not be appropriate to require the head of the institution to which the information relates to submit a report concerning it, the counsel may by notice require the report from another minister of the crown, the Office of the Provincial Auditor, the Office of the Ombudsman or other independent third party as he or she considers appropriate."
The Chair: Do you have any comments, Mr Turnbull?
Mr Turnbull: This is to allow the counsel to determine the seriousness of the charge and the nature of the charge and to be able to call on those outside agencies to do the investigating, as opposed to the ministry involved itself. This would add some teeth to the whistleblowing legislation which otherwise is virtually useless, because you're asking a ministry to investigate its own wrongdoing, which is wrong.
The Chair: Are there any further questions or comments? Shall the motion carry? The vote is stacked for tomorrow.
Mr Turnbull, you have another motion?
Mr Turnbull: I move that subsection 28.20(4) of the act, as set out in subsection 58(6) of the bill, be amended by striking out "the counsel may, with the consent of the employee, delete" in the first and second lines and substituting "the counsel shall, with the consent of the employee, delete."
The Chair: Mr Turnbull, we don't have this amendment at the table.
Mr Turnbull: I guess it shows how punch-drunk you get when you don't have dinner. I've just read the government motion. There you go.
I move that section 28.22 of the bill be amended by adding the following subsection:
"28.22(3) If the counsel is not satisfied by the revised report as provided by the head under subsection (2), the counsel may by notice require the allegation of wrongdoing to be investigated and reported on by whatever third party he or she considers appropriate in the circumstances."
The Chair: Any comments, Mr Turnbull?
Mr Turnbull: This relates to the same issue I spoke about before. It allows the notice to be given to the ministry of a third-party report being requested.
The Chair: Any further questions or comments? Shall the motion carry? The vote is deferred for tomorrow.
You have another motion, Mr Turnbull, to 28.23(2) of the bill.
Mr Turnbull: Delete that one, Mr Chair.
The Chair: We'll delete that one.
Now I have a government motion, 58(11).
Mr Cooper: I move that clause 29.1(a) of the act, as set out in subsection 58(11) of the bill, be amended by striking out "'grave health or safety hazard to any person' and 'grave environmental hazard'" in the third, fourth and fifth lines, and substituting "'imminent grave health or safety hazard' and 'imminent grave environmental hazard.'"
The Chair: Do you have any comments to make? Shall the motion carry? Carried.
Shall sections 59 to 61 carry? Carried.
We now have another motion; the parliamentary assistant.
Mr Cooper: I move that clause 2(1)(m) of the act, as set out in subsection 62(1) of the bill, be struck out and the following substituted:
"(m) to a person who regularly provides advice to cabinet, a minister of the crown or a deputy minister on employment-related legislation that directly affects the terms and conditions of employment of employees in the public sector as it is defined in subsection 1(1) of the Pay Equity Act."
The Chair: Do you have any comments, parliamentary assistant? Any further questions or comments? Shall the motion carry? Carried.
Mr Gerry Phillips (Scarborough-Agincourt): More lawyers?
The Chair: Did I hear a point of order?
Mr Tilson: No, you heard "more lawyers."
The Chair: Government motion; the parliamentary assistant.
Mr Cooper: I move that section 2.0.1 of the act, as set out in subsection 62(2) of the bill, be amended by adding the following subsection:
"Same
"(2) Despite clauses 2(1)(b) and (c), this act applies to crown employees who are persons described in those clauses."
The Chair: Any comments, parliamentary assistant? Any questions or comments? Shall the motion carry? Carried.
Shall section 62, as amended, carry? Carried.
Shall sections 63 to 66 carry? Carried.
A government motion; the parliamentary assistant.
Mr Cooper: I move that subsection 67(2) of the bill be struck out and the following substituted:
"Same
"(2) Sections 21.2 and 21.3 come into force on the day this act receives royal assent."
The Chair: Comments? Any questions or comments? Shall the motion carry? Carried.
Shall section 67, as amended, carry? Carried.
Shall section 68 carry? Carried.
Shall the title carry? Carried.
Hon Ms Gigantes: I move that the committee rise and report.
The Chair: Ms Gigantes has moved that the committee rise and report. Shall the motion carry? Carried.
The Deputy Speaker (Mr Gilles E. Morin): The committee of the whole House begs to report progress and asks for leave to sit again. Shall the report be received and adopted? Agreed.
Hon Brian A. Charlton (Government House Leader): A matter coming out of the committee of the whole consideration of Bill 117: We had dealt with a number of consents during the committee process, and my understanding is that one of those consents we now need to deal with in the whole House, and that's the consent around deferring the votes on the matters that have been indicated as divisions in the committee to committee of the whole votes tomorrow following routine proceedings.
The Deputy Speaker: Is it agreed? Agreed.
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TEACHERS' PENSION AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT LA LOI SUR LE RÉGIME DE RETRAITE DES ENSEIGNANTS
Mr Martin, on behalf of Mr Cooke, moved third reading of Bill 121, An Act to amend the Teachers' Pension Act / Projet de loi 121, Loi modifiant la Loi sur le régime de retraite des enseignants.
Mr Tony Martin (Sault Ste Marie): This bill, the Teachers' Pension Amendment Act, 1993, amends the Teachers' Pension Act. These amendments, which are of a technical nature, are put forward with the agreement and support of the Ontario Teachers' Federation, our partner in the Ontario teachers' pension plan.
The bill proposes an amendment that will give the Ontario Teachers' Pension Plan Board clear authority to repay to the government special payments that the government has already made to the plan. The partners have agreed that these payments may be replaced by gains disclosed by a January 1, 1993, valuation of the fund.
The government and teachers reached an agreement to operate the teachers' pension plan as partners in 1991. This agreement represented a first, an agreement between government and teachers to work as full partners in the operation of the pension plan, with sharing of responsibilities and rewards.
A key feature of the agreement was to have a transition stage, leading to a full partnership after the 1997 valuation of the pension fund. During this transition period, gains were to be shared on a sliding scale. In the early stages of the transition, the government would receive the greater portion of any gains. Now we have agreed with the teachers that we can bring forward the government's share of the gains that would have appeared over the full period of the transition.
This agreement does not change the portion of the gains that would have accrued to the government had the agreement not been reached. This share will allow us to offset our special payments to the fund for approximately three years. As these special payments have been projected at $1.2 billion over three years, this represents a considerable saving to the Ontario taxpayer. It will also allow us to move more quickly to a full partnership with the teachers.
This bill also proposes to revise the method of calculating the amounts of the special payments that remain to be made to liquidate the unfunded actuarial liability of the Ontario teachers' pension plan as of January 1, 1990. While this proposed amendment changes the way payments are calculated, it does not alter the government's commitment to pay off this liability.
I invite all members to join with the government, the Ontario Teachers' Federation and the Ontario Teachers' Pension Plan Board in supporting this legislation.
Mr Gerry Phillips (Scarborough-Agincourt): I'm pleased to enter the debate and to say to the members of the Legislature and to the viewing public that this isn't a minor, technical amendment. That's how the government would like to portray it, but let's be very clear on what we're dealing with here. We're dealing with a debt that the public owes to this fund of $7.2 billion. That debt is bigger than the debt of half of the provinces in this country: The $7.2 billion that the government of Ontario owes to this pension fund is bigger than the debt of five of the 10 provinces in this country.
What is planned here, and let's be very clear on it -- I will say to all of us that the public won't be fooled very long on this. What we're planning to do here with that $7.2-billion debt is that we are going to stop making any payments against that for three and a half years; for 42 months there will be no interest and no principal paid on that $7.2 billion. It's just going to run up, and 42 months from now we, the public, will owe that fund $9.5 billion.
It is clearly a plan designed to hide spending, to hide the deficit and hide the debt. That's what this bill is all about. It's not a minor technical amendment.
Interjections.
Mr Phillips: The bill's running up at $500 million a year, and that's what this is designed to do. The members begin to heckle because they care not to hear this matter.
I will also say to the members who are heckling that here's another thing this bill plans to do: It plans to take $300 million out of the fund. It is unconscionable, because the only way the government can do this is by passing legislation that allows it to exempt itself from something called the Pension Benefits Act. I will say, as I've said before, that I'm amazed the NDP backbench members have not raised their voices about this, because do you know what's going to happen?
Mr Gilles Bisson (Cochrane South): Where the heck was your back bench when you cooked the books in 1990?
Mr Phillips: The member doesn't want to hear this, but you are bypassing the Pension Benefits Act. You could not legally take this money out. The pension commissioner could not legally approve taking $300 million out of this fund under the existing legislation. You can't do that. You cannot take money out of a fund where there's an unfunded liability.
Mr Sean G. Conway (Renfrew North): Does this make Bob Rae a Conrad Black?
Mr Phillips: Many members will recall that Conrad Black, for those viewers out there, tried to take money out of a pension fund where there was an acknowledged surplus and wasn't allowed to do so.
There is a $7.2-billion deficit, and the government tonight will attempt to pass a bill that allows it to exempt itself from the Pension Benefits Act, that allows it to bypass it. Legally, if they don't pass this bill, there's no way they could take $300 million out of this fund. Remember, this is $300 million that's in a fund where there is a debt, an unfunded liability of $7.2 billion.
The member who introduced the bill said this is a technical amendment. This is an extremely important piece of legislation.
Mr Conway: And expensive.
Mr Phillips: And expensive, my colleague says. For the first time I can ever recall, the Legislature is being asked to exempt the government from the provisions of the Pension Benefits Act that prohibit taking money out of a pension fund without the permission of the commissioner. We not only are bypassing that; we are taking money out of a fund where there is a significant unfunded liability.
Hon Gilles Pouliot (Minister of Transportation): It's a $30-billion fund.
Mr Phillips: The Minister of Transportation is choosing to heckle. I'm pleased he's here.
Mr Conway: His wife is a beneficiary of this fund.
Mr Phillips: Well, whatever.
What does the president and the CEO of the Ontario Teachers' Pension Plan Board say about this little manoeuvre? He is an actuary by profession. He has a different view of this. He believes these funds should not be taken out. He believes we should not take a holiday. He believes, as I believe, that the fund should be used to reduce the unfunded liability. That's what Mr Lamoureux, who is the president and the CEO and the person who heads up the staff that has what's called the fiduciary responsibility of managing this, believes.
Hon Mr Pouliot: How did we get to $7 billion? That didn't happen overnight.
Mr Phillips: The member across says, how did they get the $7-billion deficit? Of course it didn't happen overnight. It was as a result of funding of the indexing of teachers' pensions, and the plan was put into place with, I think, support of all members of the House to deal with the unfunded liability.
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Mr Stephen Owens (Scarborough Centre): When?
Mr Phillips: It was put in place in 1990, just a little before the government was elected. Now what are you doing? You are choosing to make no payments against the unfunded liability for three and a half years.
Interjections.
Mr Phillips: I know the members opposite don't want to hear this. I will just say to you that you will fool no one. The people who watch the finances of this province are watching this and they're going to make a judgement on this government that this is another attempt to hide from the public the true finances of the province.
The Provincial Auditor is on to you. The Provincial Auditor, for the first time in the history of this province, refused to give an unqualified opinion on the finances of the province in 1992-93. That is fact, and no one can dispute that. The auditor also said in warning to the government that you are doing many things that distort the finances of the province, that do not accurately reflect the accounts of the province, that don't tell the public -- I don't have his exact words here, but he essentially said the books are being managed in a way that does not accurately reflect the finances of the province.
I will say this manoeuvre is a very significant move. It means, as I said earlier, that this $7.2-billion unfunded liability will go up over the next 42 months by $2.5 billion. Those are huge numbers. The interest on this unfunded liability every year is $550 million, but the government is choosing to make no payments of either principal or interest. They're not making a penny payment against that for three and a half years, so a new government will be faced with an unfunded liability of $9.5 billion. As I said before, these numbers are bigger than the deficits of over half of the provinces in this country. They're huge.
What should have happened? I agree very much with the recommendation of the pension board itself, the people who have the responsibility for managing this fund. Their recommendation, as I read it, is that rather than taking this what I will call phoney holiday --
Interjection.
Mr Phillips: If the member across wants to know, it's the president and CEO of the teachers' pension plan who says he doesn't believe this is the right approach. He prefers another approach and I prefer another approach.
How did we get here? It was because of this: The government had an actuarial analysis done on the unfunded liability, and that actuarial report said that instead of it being $8.4 billion, it's now $7.2 billion, about 16% lower. So what did the government decide to do? They said: "We will make no further payments for three and a half years into this fund. We won't pay a cent of the interest or a cent of the principal. We'll simply let the debt run up in this unfunded liability."
As I said, there is no doubt that this is as much a debt that the people of Ontario owe as a bond that has been sold anywhere.
Hon Mr Pouliot: No.
Mr Phillips: The Minister of Transportation says no. He obviously doesn't understand the finances. It is clear that this is a debt that is just as real as if you had borrowed the money from any other source. You are borrowing, and you will borrow $2.5 billion more money over the next 42 months.
What troubles me perhaps the most about this is that it is only a matter of months, if not weeks, before the financial community and the auditing community expose this for what is. It is a phoney way of doing our books. I believe there's about $500 million a year in social contract savings tied up in this, a little more than $300 million from the teachers' pension, and I might say the Ontario public service pension is doing a similar thing. We're not talking about that tonight; all the numbers I'm talking about are just the pension numbers. But it will only be a matter of months, if not weeks, before the financial community looks at this and the people who have to have some confidence in the way we report and manage our finances will say: "You're kidding nobody here. You're going to continue to run up interest costs over $500 million a year on this unfunded liability. You're going to let the unfunded liability go from $7.2 billion to $9.5 billion and you're not going to pay a penny against that for 42 months."
Hon Mr Pouliot: What would you do, Gerry?
Mr Phillips: I've already told you what I would do, if you'd only sit there and listen. What you should do is continue to make payments against it, reduce those payments by the amount the unfunded liability's gone down, at 16%, and be honest with the books, because these costs are running up. It's just that you're not making any payments against them. The expenses are going on. All the money's being spent. You're just running it up in the unfunded liability.
Interjection: Pay your bills.
Mr Phillips: "Pay your bills," someone says. That's exactly what you should do. You're playing games with the books and you are being exposed. The Provincial Auditor has been very clear with you. He said he didn't sign your books last year because he didn't think they represented the finances.
Hon Mr Pouliot: Don't play on words.
Mr Phillips: There is no doubt that last year, for the first time in the history of this province, the Provincial Auditor refused to give an unqualified opinion.
Secondly, the auditor has pointed out about four areas -- I mean, you people are playing games with the books. You've already said you're going to sell $500 million worth of jails to yourself. The Minister of Correctional Services is shaking his head. I will show you the document, provided by your own government, showing that. That's what you're planning to do. It's a scam. You're going to sell $500 million of jails to yourself and then lease them back.
That's what the Provincial Auditor said about your land sales. He said you're playing games with the books. That's what he said about what you're doing with school capital. I hope you all know this. You are getting the school boards to go out and borrow the money for you. You're telling the school board: "You go borrow the money but you tell whomever you're borrowing the money from that we will repay that principal and interest. We just don't want it appearing on our books." Do you think you can get away with that? Do you think the financial community is stupid? They'll understand that.
Mr Chris Stockwell (Etobicoke West): If this was in the private sector, you'd be charged with fraud.
Mr Phillips: My colleague the member for Etobicoke West says the truth, and that is that there is no accountant who could ever sign these government books if this were a private company, because they do not reflect the finances of the province.
What we see here tonight is another example. We're not dealing with a small, technical amendment. Once the government members appreciate what you've done, I think you will understand this is a game, this is a shell game. You are running debt up on the unfunded liability. There is a clear solution to that. You should be making the annual payments against this and showing those as an annual payment. I will say that without any question we will see in the next few months this exposed for what it is.
I want to review again what we're dealing with in this bill. One is that we are exempting the government from the provisions of the Pension Benefits Act. We are exempting in this case the employer, the government, from the provisions of the Pension Benefits Act. Do you know why?
Hon Evelyn Gigantes (Minister of Housing): You don't apply that to public sector pensions.
Mr Phillips: The member across the hall shakes her head, but there is no way that the commissioner could ever approve this. The only way you can withdraw, pull that $300 million out is by exempting yourself. The commissioner can't approve this, because you are taking money out of a fund where there is no money, where there is an unfunded liability.
Secondly, what we are doing for 42 months, for three and a half years, is making zero payments against the unfunded liability, simply letting it run up. The teachers probably aren't too worried about this because the government has 100% of the obligation for this.
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Mr Stockwell: It's not their problem.
Mr Phillips: "It's not their problem," my colleague says, and he's right. The teachers understand that the government has 100% responsibility for this, but the taxpayers should be worried because we are dramatically understating the expenses we're running into every year. We are dramatically understating the deficit this province is incurring. We are understating our debt in this province by, right now, $7.2 billion, and at the end of 42 months it will then be $9.5 billion.
Why is it all happening? It is happening because the government is desperate to report a deficit number. Whether that deficit number bears any relationship to reality or not is another matter, but they're desperate to report a deficit number. I suggest to you strongly that this plan, this scheme to give yourselves a three-and-a-half-year "holiday" is nothing but a desperate attempt to misstate the numbers.
The members opposite say, "What should be done?" What should be done is what the president and CEO of the teachers' pension plan suggests, and that is that we not take the three-and-a-half-year holiday, that we not simply let the unfunded liability run up, but that we deal with it on a regular, orderly basis, making regular, orderly payments against it, and be honest with the public about what it's really costing us to run the services in this province.
I will say as I said earlier, that while we've talked tonight about the teachers' pension, there's a similar scheme under way with the Ontario public service pension plan where there too is a very significant unfunded liability, and there too I gather the government is planning to also give itself a holiday. Hopefully, we will soon have an opportunity to have that debate here in the Legislature.
The other point I'd like to perhaps emphasize is that even when the "holiday" is over, where the government has made no payments against this for three and a half years --
Mr Stockwell: Who's holding the bag?
Mr Phillips: "Who's holding the bag?" is a good question. What do you think the annual payments then will be that have to be made? They will be $500 million. We will go along paying nothing and then, suddenly, a $500-million-a-year payment will have to be made, and that payment will have to grow each year because the unfunded liability will have reached, by that stage, well over $9.5 billion.
In the interest of the government trying to show, in my opinion, a deficit and a debt number that aren't real, we are digging ourselves a very significant hole with the unfunded liability in the teachers' pension plan.
There's a solution to it. There's a solution that the pension staff have recommended, that I support and that would allow us to be forthwith and honest about the true situation. I have a lot of faith in the public.
Hon Mr Pouliot: They had a printer; the money kept rolling in.
Mr Phillips: The Minister of Transportation says the money keeps rolling in. I hope he would understand that the spending is going on here; it's all going on. This doesn't stop. When you've got a $7.2-billion unfunded liability, just because you say you're not going to make any payments doesn't mean the spending isn't going on. That interest is chugging along, day after day after day, building up, over $500 million a year. That unfunded liability is building up, so it isn't as if the cost in that program has dropped off. The only thing that has stopped is you stopped making any payments against it. The expenses keep going up and up and up.
The minister of government services or Management Board shakes his head. I hope he's shaking his head in dismay because those are the facts. Those are the facts. They are not only the facts; they are the facts as presented to our committee when we met last week. It's clear that's exactly what's going to happen.
I guess this bill will pass because the government has to have the bill. Do you know why it has to have the bill, Mr Speaker? So they can get the $300 million yanked back out of the plan, so they can report $300 million worth of revenue.
Mr Stockwell: By what date?
Mr Phillips: By March 31.
Mr Stockwell: Which happens to be --
Mr Phillips: Which happens to be just around the time we come back. So we have to deal with it today or tomorrow or whenever the House breaks to give the government the legal authority to yank the money out. That's why we're under such pressure to pass this.
Around here, Mr Speaker, as you know, the government gets its will, but I will get on the record our concerns. I will say that this is a case not unlike the one we raised about 18 months ago. The public may not be aware of this, but the government owed the teachers' pension $500 million due January 1, 1993. They "rescheduled" that payment to April 1, 1993. Why? So they could show the $500 million not in last year's budget but in this year's budget, so they could report the deficit $500 million lower than it was.
The taxpayers of this province paid a penalty of $4 million. It cost the taxpayers $4 million in an interest penalty just so Bob Rae could report a deficit $500 million lower than it was. The reason is that the government had to pay 11 1/4% interest on that payment. They were borrowing money at 7 1/2%. It cost the taxpayers $4 million. The hard-pressed taxpayers got nothing for that. It was just like pouring $4 million straight down the drain, for one reason only: so Bob Rae could report a deficit lower than it actually was.
The Provincial Auditor blew the whistle on that very thing and said it was unacceptable to do that. That's why he gave the qualified opinion on the books, because of that very move. So Bob Rae wasted $4 million on that little scam, the little manoeuvre, and it cost the taxpayer $4 million and it cost Ontario an awful lot in credibility. That's why we are ensuring that this issue get on the table now, because it won't go away. It will be reported clearly by the Provincial Auditor. It will be another source of embarrassment to the provincial government when people say, "Holy gosh, what's going on in Ontario?"
As a matter of fact, there was a story just last week in one of the Toronto papers indicating that some of the thoughtful people who monitor financial markets around the world were saying: "What's going on in Ontario? They're playing games with the books. If we can't trust the books, we can't lend the money." This will be another example of, "We can't trust the books."
I think I've now got on the record the concerns. I realize that some of the members, the backbench NDP members, may not like to hear them. Time will indicate that these concerns are important, that they're concerns that will not go away and that they're concerns that will have an impact on the credibility of the government of Ontario. I guess those are the comments that I'm pleased to get on the record on this particular bill.
Hon Mr Pouliot: Just a few points, because they're facts: The teachers' superannuation plan is one of the 20 richest in the world. It is the second- or third-richest plan in Canada. It has total assets, as I speak, of some $30 billion. The net earnings last year, return on investment, were in the neighbourhood of 9.6%. The actuarial figures had projected a rate of inflation far surpassing, far exceeding, the 9.9% we have now.
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The teachers' salaries have been frozen for a period of three years, so when you take into consideration the average of the most lucrative five and you translate that with a multiplier into actuarial figures, you come out, when all is said and done, with an unfunded liability which is far less than the projection of even last year, before these happenings took place. In fact the teachers who are superannuated will be the only teachers getting an increase, because they're fully protected up to 8%.
They're not concerned. They know their plan is sound. They know of the contributions successive governments have made to their plan. They can look to the future with extreme confidence, for to all knowledge, to all participants, 30 years, 40 years down the line there is no such thing as an unfunded liability if you're the recipient of a pension plan if you have been a teacher.
If it were so problematic, why is it that the previous administration found it commonsensical to give the teachers one, two or three options of retirement? The plan must have been sound, and it's just yesterday. The plan is still sound.
Mr Hans Daigeler (Nepean): I always find it interesting to listen to the member for Scarborough-Agincourt. He really brought to our attention the seriousness of this bill. Frankly, when I look back on my own experience in this House, the teachers' pension issue has been one that's kind of sore around my heart and I'm sure around many other members' hearts, because there were a lot of teachers who were quite upset a few years ago. I remember that in Hamilton we had a convention of our party and there were I think something like 20,000 teachers there who were extremely concerned that the Liberal government was trying to put the pension fund precisely on a stable basis about which the Minister of Transportation just spoke.
He's quite correct that in fact the Liberal government did put the proper funding in place for the teachers' pension plan so that actuarially, as they say, this fund would be able to pay the moneys now and in the future. However, what this government is doing now is that it is not leaving that fund alone; it is pulling money out of that fund.
I'm not talking about the leaders of the federation, but once word gets out to the ordinary teachers and once they find out what's happening to their plan, I think they're going to begin to be very concerned and that will just add to the anger that's already out there, especially among the teachers, with regard to some of their NDP friends. I don't think all the teachers were NDP, by no means. Certainly in my riding I must say they continued to support me in the last election. I'm very thankful for that. But there were, without question, teachers who had lots of hopes for the NDP and they've been sorely disappointed.
Mr Stockwell: I have to get up and comment on the Minister of Transportation's comments that he made with respect to the speech that was just made. It is breathtaking how little he understands about this issue.
It is absolutely academic about the assets of the particular fund. It is absolutely academic about the amount of holdings they have and the amount of money they have in the bank. What the Minister of Transportation should concern himself with is one very important number: What is the unfunded liability of that fund and whose responsibility is that unfunded liability? The fact is quite simply this: The unfunded liability is $7.2 billion. That responsibility is resting solely on the taxpayers of the province of Ontario.
By taking a 42-month holiday from making payments to this account, you're incurring further debt on behalf of the taxpayers of this province, from $7.2 billion to $9.5 billion. You're not showing it on the government books, and to have a minister of the crown stand up and make the statement he made makes an absolute mockery of this Legislature. It has nothing to do with the reality of the situation, and it's got everything to do with the jiggery-pokery, the smoke and mirrors kind of financing that this government has entered into.
It's just awful that here we are on Monday night, at a quarter after 11, trying to pass a housekeeping bill this parliamentary assistant calls for that's going to put us $2.3 billion further in debt, and you have a Transportation minister pop up who doesn't know anything about it and starts quoting assets of the pension fund. It's unbelievable.
Mr James J. Bradley (St Catharines): As one who over the years has had to discuss the matter of teachers' pensions with members of the teachers' federation, I can envisage that a few years from now we'll be in a similar situation to what we were before; that is, trying to rectify a problem that is accumulating over the years. The easiest way to rectify it, of course, politically is to simply ignore the problem. There were those over the years who have advocated, in fact, that government should ignore the problem, let the plan run into financial difficulty and some subsequent government can look after it.
That's exactly what is happening in this situation. The plan is going to be, as a result of the action being taken by the government, in a less advantageous position than it was before this legislation. When confronted with this, the previous government had to insist upon an increase in contributions from the teachers and an increase in contributions from the taxpayers of this province, the contribution from the government being that which would be more than the entire budget of most ministries of the government.
That's why we're concerned this evening when, as the member for Etobicoke West has stated, at 11:15 on an evening when most people are tuned in to something other than this, and when there appears to be acquiescence on the part of the leadership of the Ontario Teachers' Federation affiliates at the provincial level because of discussions with the government, what worries us is what's going to come a few years down the line. Just as with bill after bill, with piece of legislation after piece of legislation, with regulation after regulation and with policy after policy, we are going to be faced in the future with undoing a mess which is being made on a daily basis by this government.
The Speaker (Hon David Warner): The member for Scarborough-Agincourt has up to two minutes for his reply.
Mr Phillips: I appreciate the comments of all the members. The Minister of Transportation's comments were disturbing because as a member of the cabinet it seems to me he has no understanding of what is in the teachers' pension plan.
They've just spent a large amount of money having an actuarial report done and it is absolutely clear that there is an unfunded liability in the teachers' pension of $7.2 billion. It's absolutely clear the government has 100% responsibility for paying it off. Then there's a frightening chart in the back of this thing that shows the payments that were going to be made and now the payments that are going to be made: zero, zero, zero, zero, zero, zero, zero, zero, zero, zero, zero. Then you get to August 1996 and they begin at $36 million a month and they just keep going up: $36 million, $36 million, $37 million, $38 million, $39 million, $40 million, up to $42 million month after month after month. So we go three and a half years with zero payments and then suddenly we've got to be making payments $36 million and $37 million a month.
My colleague the member for St Catharines has got it right: We're kidding ourselves here. We're putting at risk the financial viability of the unfunded liability by taking this three-and-a-half-year holiday. The teachers out there who are watching I think should rest easy because this is clearly a government responsibility, but we're being irresponsible with the way we're managing this thing. That's the issue that's before us tonight and the issue that needs to be well debated.
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The Speaker: Again I thank the honourable member for Scarborough-Agincourt and invite any further debate on this bill.
Mrs Dianne Cunningham (London North): I think this evening we're facing the same kinds of challenges as we have in the past over a very important, in my opinion, money bill for the citizens of Ontario.
I can remember about three or four years ago, as we debated the initial bill that looked at merging two of the teachers' pension funds, Bill 66 at the time, when the Liberals were in government, and I can remember on December 20, 1989, being forced into rushing around an agreement at that time for almost the very same reasons. These are the kinds of things that are happening I think in government across this province in the last eight years, where none of us are ever given enough time. Bills are tabled; in this instance, the one we're speaking to tonight was tabled just about three weeks ago, the last week of November.
We were given a briefing, I think, a week ago Friday. Last Thursday, less than 10 days later, we had an opportunity to get our questions responded to. Quite frankly, during that two-hour session, I can remember being criticized somewhat by the parliamentary assistant as never being happy with regard to any of the briefings. During that particular briefing for all of us, all members, government members and opposition members, I think anybody present would say that the issue was extremely complicated. It's a matter of buying into the numbers, the actuarial numbers and the projections, with regard to the unfunded liability and the paying down of that.
At that meeting we were all presented with a graph that showed us, first of all, without the special payment legislation that we agreed to just three years ago, and now moving over to this new special payment legislation. The fact that we're now taking a 42-month holiday seemed to have no effect with regard to the actuarial assumptions for some 37 years, which was the amount of time that this pension plan was to take to pay down. The unfunded liability is some $7.2 billion.
Actually, at that meeting we were also advised that in a period of just a few hours, meaning a couple of days, the numbers that we were able to obtain in opposition, and the government actually, went from some $7.8-billion liability to $7.2 billion. So the numbers are changing all the time and it's a matter, with regard to the decision-making of this House, as to our being convinced that the best plan has been agreed to that is reflected in this legislation. I have to say at this point in time that we just simply don't believe that this is so.
There are a couple of reasons. First of all, we just simply have not been able to have our questions answered. We put them before the administration last week and we were not able to have them answered.
During the previous legislation we were all told that during the transition period the government may apply all gains, if any, from the 1992 valuation to pay down the initial unfunded liability, 60% of the gains from the 1994 valuation and 40% of the gains from the 1997 valuation, and this was part of the five-year plan.
It's as simple as this: This act changes all of the intent for the first five years. We were told that we did have a $10-million gain. We weren't told whether that went in to pay down the unfunded liability. We were told that we had a $1.2-billion gain. We were also told that it will not go to pay down the unfunded liability during this transition period. For some reason, the government was advised that it wasn't a good idea. It's as simple as that.
We weren't told when we asked the question why it wasn't a good idea. Apparently, the teachers and the government representatives got together to talk about a new plan, and we have no idea why this was necessary, other than an unexpected gain is expected to take place. Of course, we've had the actuarial assessment for January 1, 1993, and as a result of that, we are showing a gain of $1.2 billion. That was totally unexpected.
I can read exactly what the teachers were told when they asked the question. They were told: "It's worth noting that the pension plan's income in a typical year comes mostly from investments. Last year investments accounted for 71% of the plan's income, teachers' contributions 12% and the balance of 17% came from the provincial government. There were many unexpected assumptions using performance factors that went into the January 1, 1993, actuarial assumptions: the rate of return, 8%; the wage inflation, 5%; the CPI, 4%." Those are assumptions that the actuaries have advised us went into the formula to project the $1.2-billion surplus.
It's interesting to note that in the previous legislation no one ever talked about paying down surpluses. No one ever talked about what we were going to do with surpluses. The agreements were all made with the assumption that there would be deficits, so the whole plan was around deficits: what percentage the teachers would pay, what percentage the government would pay, and finally, after 1996, all of the deficits would be shared equally; teachers and the government would share equally in any actuarial deficits.
Nobody talked about the gains. So here we have a gain, unexpected money, and I think the member for Scarborough-Agincourt said it very well. As a result the teachers and the government had conversations around the social contract last August and they decided that they would take a certain amount of that money, $300 million, and put it towards the teachers' contracts with regard to days off. It's as simple as that. That's what's happened. If there's more to it, no one has answered our questions.
As a result, what ought to have happened is all this money should have gone to pay down the deficit, and we could have paid it sooner rather than later. But for some reason we're expected to believe that if we don't make any payments for five years, if we start paying in August 1996 with the first real payment -- I'm talking about almost $36 million during the month of September 1996 -- in the long run, after 37 years, there will be no additional penalties. That's really hard to believe. I'm not an actuary, but that's hard to believe.
Most of us who pay our mortgages pay them on time. If we pay more money into them up front we pay them off sooner, and we're being asked to believe the exact opposite. We just haven't had the time, nor have we seen the actuarial statements or any of the backup work that would make us believe that this is so.
The other catch to this whole thing is that in order to take this gain, this $300 million, the government had to go back to the teachers and get their agreement to say that the Pension Benefits Act, section 78, does not apply to a repayment with regard to this legislation. The previous bill was always subjected to this section of the act. All legislation is. It said "equal partnership, which will govern all aspects of the plan and the fund, subject to the requirements of the Pension Benefits Act." That's Bill 40, the Education minister was Mr Silipo and this all came into place January 1, 1992 -- "equal partnership, which will govern all benefits of the plan and the fund, subject to the requirements of the Pension Benefits Act," and now we're taking that out because we could not take out $300 million of this surplus in the fund without excluding this particular piece of legislation from the Pension Benefits Act.
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All I can say is, after sitting in this House for the last six years, taking a look at at least three pieces of legislation with regard to the teachers' pension, we've looked at at least three major changes in the last five years, Bill 66 and the resulting legislation that the Liberals put into force -- they had to do that because we were facing an unfunded liability and someone had to get that in order, and I give them credit for that. But I have to say, even they suffered from actuarial numbers that were unbelievable. Where they got them from, maybe they don't know.
I can remember -- and I can see one of the former ministers looking at me right now -- that during that time, on October 19, 1989, the minister of the day, Mr Conway, released a press release that placed the unfunded liability at $4 billion. Less than two months later, it jumped to $7.8 billion. The Liberals obviously had their difficulties with actuarial numbers, but none of us had the experience that we now have, and the whole philosophy behind this piece of legislation just doesn't make sense.
I certainly did put my remarks historically on the record last week and I'm not going to take any more time on this issue today, except to sum up by saying that the $7.2-billion liability, if no one pays anything on it, if we don't pay the $500 million a year that we had planned to pay during that transition phase, will go as high as $9.5 billion in the next five years. It's clearly a plan, in my view, to confuse the public, put more money in the books. I do believe, as my colleagues believe, that the auditor will certainly have something to say about this in this year's budget. There's no doubt in my mind. He had something to say last year when we didn't pay up the $500 million that was owed and deferred it, so we're going to hear more from the auditor.
You just wonder some days who does have control down here. We hire a Provincial Auditor to give us advice; we ask the president and the CEO of the teachers' pension plan board to give us advice. This bill goes against the advice of both of these individuals and today we're being asked to pass this piece of legislation with less than an hour of debate.
In sum, we're probably looking at a piece of legislation that will, number one, be responded to by the auditor as being a cooking of the books in some regard, and number two, I would project that two or three years from now we will take a look at that unfunded liability and certainly five years from now as we start making payments, and we will realize that we have made a dreadful mistake.
The Speaker: I thank the honourable member from London North for her contribution to the debate and invite any questions and/or comments.
Mrs Margaret Marland (Mississauga South): I just want to commend the member for London North on her contribution to this debate. I think the points which this member has made are very important. I hope that perhaps for once this government might be listening. I know that some of the concerns about this legislation unfortunately will come home to haunt this chamber and certainly this government for this piece of legislation.
It's unfortunate that this government can be so cavalier in its approach to some of the almost, I think, ideological interpretation of what legislation needs to be drafted to deal with what area of jurisdiction in this province. Sometimes that ideology overrides what could otherwise be wisdom in the best interests of everyone in this province. When that happens, of course, there's no way, with a majority government and those of us in opposition being a minority, that we can do anything with it. Just the same as we were placed in that position earlier today on a number of other bills, we can get up in time allocation and if we're lucky we may get two or three minutes to speak. We can't even represent the interests of the people who elect us, because this government is determined that a certain amount of legislation that supports its viewpoint will be passed come what may. That being so, I am now already out of time once more.
The Speaker: Further questions and/or comments? The member for St Catharines.
Mr Bradley: Thank you again, Mr Speaker. I last time responded to the fact that one always has to look after these pension plans somewhere along the line, and that we're simply falsely saving at this time to be tampering with it using the Conrad Black provision -- that is, the provision that there was a lot of noise made by New Democrats when Conrad Black attempted to use this provision to withdraw surplus funds from a pension plan over which he had some jurisdiction, and as a result there was legislation passed in that case to deal with that particular matter. We find now that the government once again, just as we found with a previous bill this evening, is attempting to apply different rules to other people than it applies to itself.
I want to get on record, with just a couple of minutes that I have here, the fact that more and more as we look to the future, the public must understand what's building up, that when there is an election, the new government or the government of whatever stripe is elected by the people of this province is going to have to undo so much of what's being done now, and the days of reckoning are coming. If you look at the social contract, for instance, and when it expires, it's going to expire at the conclusion of the present term of office of the administration that's in power now. So either this government or another government is going to have to deal with the problems associated with the termination of the social contract and all the pent-up expectations that will be there at that time.
Similarly, we're going to be confronted with this bill, where the government is going to utilize the funds for a few years or not pay into the plan for a few years. The next government's going to come into power and it's going to be forced into the responsibility of dealing with this problem three, four, five years from now.
Mr Conway: I want to just underscore a point that the member from London has indicated in her remarks, that is, this is a very important bill for the public finances of the province. It has to be remembered by all of us that this is a fund with a gargantuan unfunded liability, and it has to be understood that at some point the people of Ontario are going to be called to account for that liability. It is right for the member to observe that in the previous administration there was an effort made to deal with the developing unfunded liability. Let me say that that liability developed as a result of some decisions made a generation ago by a Legislative Assembly in the period 1971 to 1975, a decision made by the then Davis government but complied in, I might say, by the opposition parties, where all members of the assembly knowingly accepted a set of proposals that imposed a huge responsibility that was not being properly paid for. It was left to a future generation and left to a future Legislature to deal with those chickens when they were to come home to roost.
The decision made for that enormous unfunded liability was made about 1974, and the people who made it -- and they didn't all belong to one party -- knew that it would be a different group of individuals, a full generation later, who would be called to account. We are that generation, and now in this Bill 121 we are engaging to some real extent in the same kind of activity.
Let me say, as the member for St Catharines just said, the Aegean stables are going to be packed full of Trojan horses and Bill 121 is yet another one of those horses.
The Speaker: Further questions and/or comments? The member for London North has up to two minutes for her reply.
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Mrs Cunningham: I just think, in sum, that what we're being asked to do this evening is, instead of waiting till 1997 for the teachers and the government to share in any gains, we are now sharing in gains in 1994. It's as simple as that. That's the difference.
The reason that we want to share in these gains on January 1, 1994, or at least before the end of March, is that the government has indeed taken $300 million out of the teachers' pension gains that were not expected and it has put them towards the teachers' social plan in that they are now not having to take as many days off as other employees across the province of Ontario. That's the reason it was done. We asked if there were other reasons and we couldn't get any answers to those questions last week.
We now are looking at what we thought was a very good plan, a phase-in plan, where we started to pay down over a period of five years this tremendous debt that our young people will have to pay down. By the way, the plan is for another 37 years. So it's going to take a long time to get rid of the $7.2 billion. Our great hope is that two or three years from now we're not told that we're being faced with even a different plan because, as some have projected, we may be looking at a deficit then of $9.5 billion.
That's the first reason that we're very unhappy with this change. We think it's irresponsible of the government. We think process-wise we shouldn't have been asked to deal with this legislation in a rushed manner, with the first reading just on November 29, and here we are on December 13 with our final opportunity. There just hasn't been the time to look at it carefully. We've been told both by the president of the teachers' pension fund and certainly the auditor that this is inappropriate, and we're not supporting this legislation.
Mr Stockwell: I understand why we are debating this bill on Monday night at 20 minutes to 12. I understand why this bill was announced by the government to be technical in nature when it was announced. I also understand why they think this is housekeeping in general, because most of these money bills, pension bills, tend to be very complicated and they tend to be very dry. For the life of me, I don't understand why these kinds of pieces of legislation don't make the front pages of the daily newspapers. I don't know why because this bill that we're debating today has a very serious impact on the taxpayers and future taxpayers of the province of Ontario.
I also understand that this is not going to be huge news today or if it were debated in the next session, but what I do understand is this. Measurements of governments -- and this has been said in the past -- are not what they do when the focus of attention is on them, because most governments, in my opinion, when the focus of attention is on them, tend to do the right thing because the media and public attention is on them.
What I believe is a measurement of a government is when the focus and the attention of the taxpayers and public is not on them and in essence they can do pretty much anything they want to do because either the taxpayers are too busy to care or simply can't understand it.
This piece of legislation is one of those pieces of legislation that the focus is not on the government to do the right thing. Therefore, they're going to do what is best for them, what is best for the government, what is best for the members of provincial Parliament and what is best for their hopes for re-election.
This bill, without public attention and with no articles in newspapers or stories on TV, has nothing to do with what's best for the taxpayer. Why it has nothing to do with what's best for the taxpayer is because this government has entered into what I think is sleight-of-hand financing once more.
There will be no stories on this in tomorrow's newspaper. When they go back to their constituency offices, nobody will ask them a question. But you know something, Mr Speaker? With the passage of this bill tonight, the Ontario taxpayers will incur $2.5 billion of further debt. With the passage of this piece of legislation, they will now be responsible for $2.5 billion worth of debt.
Hon Ms Gigantes: Hypothetical debt.
Mr Stockwell: This is what's so frustrating. You could almost accept a government who sit quietly by when the focus is not on them. When people put forward the actuarial numbers and say it's $2.5 billion, you still have members opposite who are so ideologically driven that they suggest the $2.5 billion is hypothetical. There's no such debt that's hypothetical, because the person who lends you that money doesn't consider it hypothetical. It's hard, cold currency, and they want their money back at some point in the future.
The focus is not on this Minister of Housing as she chirps away, talking about hypothetical debt as opposed to real debt. There's no difference, Madam Minister. There's no difference. When $2.5 billion is borrowed or $2.5 billion is not paid on a debt you owe, you still have $2.5 billion in debt.
The arguments I get from the Minister of Housing seem to run contrary to those of the actuaries who have studied this. But again, that doesn't shock me from the Minister of Housing, because there's no focus on this debate. There will be nobody outside when this is over to make the minister defend her chirping. Why? Because her chirping is indefensible. It's indefensible because actuaries have said if you defer payment for 42 months, you people will be $2.5 billion further in debt.
No taxpayer will go to sleep tonight worrying any more and no newspaper will hold the presses to get this into the newspaper. But it worries me. Maybe I'm the only one, plus some of the caucus here who are worried. But I'm worried. I'm worried because the parliamentary assistant rose in this House and talked about incurring 2.5 billion new dollars in debt as a technical amendment, as a housekeeping process: $2.5 billion as a technical amendment introduced by the Minister of Community and Social Services, not the Treasurer and not the Minister of Education and Training.
How do we incur this debt? You know how we incur this debt, Mr Speaker? We incur this debt because for 42 months straight we will not make any payments to the teachers' pension plan.
You want to know the real irony about this, the absolute irony about it? This government, in opposition, swore a blue streak when Conrad Black dipped into the pension funds at the Dominion store. But that pension fund at Dominion had one major difference than the one you're pilfering. That pension fund had a surplus, a surplus in the private sector. This government, with the chirping Minister of Housing, has a deficit of $7.2 billion this year, and $2.5 billion will be accrued by simply not making their payments.
The focus is not on this government, but you want to know how sick and sad this has gotten? This technical housekeeping amendment to incur $2.5 billion more debt on behalf of the beleaguered taxpayers -- this government needs changes to what? They need changes to the Pension Benefits Act. Why do they need changes to the Pension Benefits Act, you ask? Because if somebody in the private sector tried this stunt, they'd be contravening the very act they're asking for amendment so they can do exactly the same. Ironic. There are stronger words, but not parliamentary. Ironic is one of them.
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Mr Randy R. Hope (Chatham-Kent): Better read the last regulations that came out a while ago.
Mr Stockwell: Now I have to listen to a lecture from the mayor of Chatham over here on whether or not there's a $2.5-billion deficit.
The Speaker: Order.
Mr Stockwell: I myself find it difficult, frustrating and hardly fair of this government to be end-running its financial commitments. But you know what really ticks me off? What really ticks me off is all these tricks they've used. They've used the crown corps to offload debt; they've used not making payments to the teachers' fund to show a lower debt; they've used this non-payment of the teachers' pension fund to reduce their payments to this fund over the next 42 months.
Then they act shocked and dismayed when bond rating agencies come out and downgrade them. They suggest it's a conspiracy by the bond rating agencies. They're starting to see capitalists under rocks, for heaven's sake. This government's suggesting that bond rating agencies are conspiring to make this government look bad when in reality they don't need anybody's help to make themselves look bad. So --
Hon Elmer Buchanan (Minister of Agriculture and Food): Your time's up.
Mr Stockwell: No, I'm sorry, the time's not up. At $2.5 billion, I'm going to take the full time. I figure I've earned it. The unfunded liability is not the end. They've asked this pension fund to kick out $300 million that they have already paid.
Hon Ms Gigantes: You know what 20 minutes is?
Mr Stockwell: Excuse me, if you want to heckle, I'll listen. Go ahead. I want to hear your defence. I'd love to hear your defence. I've given them an opportunity. What's your defence? Please, chirping Minister of Housing, heckle. What is your defence? I'll note for the record the Minister of Housing is not chirping, she's smiling.
Hon Ms Gigantes: I'm laughing.
Mr Stockwell: There she goes. The problem that you get with this government is you put the positions forward, you put the arguments in front of them, they want to heckle while you're speaking but when it comes to defending these charges, rising to the challenge, there is no debate, there is no defence. They know the public's not watching, so they go out and borrow $2.5 billion more and they think this caucus will simply sit idly by and let them allow this province to go broke in a sea of red ink.
You know, $2.5 billion is 10% of the last Progressive Conservative budget, the last budget brought into this House. It's 10% of that entire budget. The last budgets that we brought in, some deficits we brought in in the 1980s were less than this money you're deferring in pension payment plans. You're going to increase -- they've got $9.5 billion admitted to by the Treasurer. Most lending agencies are suggesting it's $11 billion to $12 billion, $11 billion to $12 billion added to this $2.5 billion over time. This government is fiscally irrational. They haven't got any sense of finances; they have no sense of borrowing. I say to this government, I would ask this government --
Mr Drummond White (Durham Centre): Ask away.
Mr Stockwell: I thought I had a defence from the Minister of Housing, but it wasn't. I was hoping it was her defence. I would ask this government one thing: Would you please issue a statement for the taxpayers of this province showing but one thing, showing the consolidated debt that you've accrued on behalf of the taxpayers?
It's not a lot, it's not much for somebody to ask considering they're paying taxes. It's not anything more than a shareholder would ask their corporation. It's not anything more than a business would be asked by the bank. I ask you to do one thing. Take all the debts that you've accrued, add them up and tell the taxpayers, once and for all, how much money you have borrowed on their behalf to run this province.
They won't do that for the same reason the Minister of Transportation won't tell you how much money he's generating on photo-radar, because they'd be damned embarrassed.
The Speaker: I thank the honourable member for Etobicoke West for his contribution to the debate, and invite any questions and/or comments.
Mr David Turnbull (York Mills): The point my colleague brings to bear that this debt, which will be accrued as a result of this legislation deferring the teachers' pension benefits, is 10% of the last PC budget is a pretty sobering thought. All I can say is I think it's disgraceful that the Minister of Housing sits there giggling her head off, because her ministry has been one of the most extravagant ministries we've ever seen, wasting money on the most foolish housing program, an absolutely indefensible housing program.
We've seen the government allowing the Workers' Compensation Board to fritter away money. We now know that the building, which they should never have been building in the first place, is going to cost a mere $40 million more than they told us at the beginning. Now, we've got $2.5 billion which is going to accrue to the accumulated debt of this province that the taxpayers, not you, not the people in this House, but our children and our grandchildren are going to be paying. It is absolutely disgraceful because you will drive them out of the province because there's no future if you have to inherit massive debts.
This is a government that has more than doubled the total debt we've had since Confederation in a mere three years. This goes into the Guinness Book of Records in terms of debt accumulation. This is an Olympic record. This is something that our children are going to remember for ever, and it will be the death of your party. We know there's already a movement afoot to create a new left-wing party because they want to cut themselves off from this party in the government because they are so nauseated by the efforts of this government. The fact that while my colleague debates the ministers just giggle shows how much contempt for the taxpayers you have.
Mr Phillips: The member for Etobicoke West added an important element to the debate, one I think we should focus on.
I heard the Minister of Housing across the way say, "Well, it's just a hypothetical debt." If you actually believe that, as I said, this is why the government's in so much difficulty. If the minister thinks this is a hypothetical debt, the teachers of the province are going to be very interested to hear that, that they don't think the money the government says it owes the fund is real money.
If you don't think that's real money that you have to pay back with real dollars to teachers who are counting on the money, if you simply think that's a hypothetical debt, our friend from Etobicoke West is absolutely right, you're dealing in Never-Never Land. You're not dealing with reality. This is real debt, real money, and you've just paid a bundle of money to have these reports done that show it's real debt. It's not a hypothetical debt.
Mr Bradley: What does the actuary say from the teachers' fund?
Mr Phillips: The managers of the teachers' fund say they disagree with the way the government's going to handle this. As a matter of fact, we asked this question -- my colleague from London North will remember -- of the government officials, "Why, when the pension board said that you should do it another way, are you doing it this way?" The answer was, "Well, we take into consideration the needs of the government, and the needs of the government are to show a lower deficit, a lower debt, so we're going to do it this way."
The member from Etobicoke is absolutely right.
Mr Bradley: It doesn't fool the bond agencies.
Mr Phillips: It will not fool the bond agencies, to answer to my colleague. You've got to come to grips with the total debt you're writing up, and you will fool nobody at all, as the member for Etobicoke West points out. This is real debt, growing real quickly, real dollars attached to it, real trouble coming. It's time, as the Premier says, for you to get real.
The Speaker: Further questions and/or comments? The member for Etobicoke West has up to two minutes for his reply.
Mr Stockwell: This is what's incredible. The Minister of Housing just has no idea what she's talking about. She says they have $30 billion worth of assets and, if you don't know that, you don't know what you're talking about. You see, this minister is typical of this government. The assets of the pension plan have nothing to do with the unfunded liability; nothing. The problem with this government is you get fed a line that's absolutely wrong, totally inaccurate, you spout it out in this House, and we sit here in utter amazement that a minister of the crown can be so uninformed.
The $30-billion asset means nothing. So what? There is a $7.2-billion unfunded liability. That's the figure, $2.5 billion over 42 months, added to your $7.2 billion. If you want a little bit of an explanation, come on down to my office tomorrow and I'll explain it to you. Clearly you haven't got a clue what you're talking about. You sound like the Minister of Transportation talking about the $30 billion in assets. The assets have nothing to do with the unfunded liability, so why are you saying it? You're shaking your head now.
Honest to God, the fear of this -- the fear is not the $2.5 billion; the fear is not the $30-billion assets; the fear is not photo-radar. That's not my fear any more. My fear is these people are running my province. It's crazy.
The Speaker: It being 12 of the clock, this House stands adjourned until 1:30 of the clock tomorrow.
The House adjourned at 2402.