Legislative Assembly of Ontario

SAVINGS AND RESTRUCTURING ACT, 1995 / LOI DE 1995 SUR LES ÉCONOMIES ET LA RESTRUCTURATION

CONTENTS

Thursday 25 January 1996

Savings and Restructuring Act, 1995, Bill 26, Mr Eves / Loi de 1995 sur les économies

et la restructuration, projet de loi 26, M. Eves

STANDING COMMITTEE ON GENERAL GOVERNMENT

Chair / Président: Carroll, Jack (Chatham-Kent PC)

Vice-Chair / Vice-Président: Maves, Bart (Niagara Falls PC)

*Carroll, Jack (Chatham-Kent PC)

Danford, Harry (Hastings-Peterborough PC)

Flaherty, Jim (Durham Centre / -Centre PC)

Grandmaître, Bernard (Ottawa East / -Est L)

*Hardeman, Ernie (Oxford PC)

Kells, Morley (Etobicoke-Lakeshore PC)

Marchese, Rosario (Fort York ND)

*Maves, Bart (Niagara Falls PC)

Pupatello, Sandra (Windsor-Sandwich L)

Sergio, Mario (Yorkview L)

Stewart, R. Gary (Peterborough PC)

*Tascona, Joseph N. (Simcoe Centre / -Centre PC)

Wood, Len (Cochrane North / -Nord ND)

*Young, Terence H. (Halton Centre / Centre PC)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Caplan, Elinor (Oriole L) for Mr Sergio

Clement, Tony (Brampton South / -Sud PC) for Mr Kells

Ecker, Janet (Durham West / -Ouest PC) for Mr Stewart

Johns, Helen (Huron PC) for Mr Danford

Lankin, Frances (Beaches-Woodbine ND) for Mr Marchese

McLeod, Lyn (Fort William L) for Mrs Pupatello

Phillips, Gerry (Scarborough-Agincourt L) for Mr Grandmaître

Sampson, Rob (Mississauga West / -Ouest PC) for Mr Flaherty

Cooke, David S. (Windsor-Riverside ND) for Mr Wood

Also taking part / Autre participants et participantes:

Patten, Richard (Ottawa Centre / Centre L)

Silipo, Tony (Dovercourt ND)

Ministry of Health:
Finkle, Peter, director, central region, institutional health group
McKeogh, Carole, legal counsel
Schwartz, Ella, legal counsel

Clerk / Greffière: Grannum, Tonia

Clerk pro tem/ Greffier par intérim: Decker, Todd

Staff / Personnel:

Baldwin, Elizabeth, legislative counsel

Filion, Sibylle, legislative counsel

The committee met at 1001 in room 151.

SAVINGS AND RESTRUCTURING ACT, 1995 / LOI DE 1995 SUR LES ÉCONOMIES ET LA RESTRUCTURATION

Consideration of Bill 26, An Act to achieve Fiscal Savings and to promote Economic Prosperity through Public Sector Restructuring, Streamlining and Efficiency and to implement other aspects of the Government's Economic Agenda / Projet de loi 26, Loi visant à réaliser des économies budgétaires et à favoriser la prospérité économique par la restructuration, la rationalisation et l'efficience du secteur public et visant à mettre en oeuvre d'autres aspects du programme économique du gouvernement.

The Chair (Mr Jack Carroll): Good morning. Welcome to the resumption of clause-by-clause debate on Bill 26.

Just one housekeeping issue this morning: We have a new Liberal amendment 36C to replace the one you have in your binders. The clerk will hand those out.

When we adjourned last night, Mrs Caplan had just moved amendment 33A. We had not started debate on that amendment, so we will begin with that. Mrs Caplan has the floor.

Mrs Elinor Caplan (Oriole): I'm not going to speak at length to this amendment. It is a serious amendment and it relates, actually, to the previous amendment, which was defeated, but it can stand on its own. The previous amendment, as you know, was about process, including the requirement for district health councils to make recommendations prior to the powers of the minister being exercised.

This amendment puts forward, we think, very important requirements that the restructuring commission must put in place. For example, before they move to implement any hospital closures or amalgamations, but particularly closures, we think it's extremely important that the restructuring commission have human resource adjustment plans so that hospital workers will be able to know what the plan is and how it will affect them, and also the community will know how services are going to be provided. Without that transitional plan, you will have tremendous morale problems, and people who are worried about their own jobs are not going to be treating patients as well as people who have some surety and security about what the future holds for them.

We believe there needs to be a number of studies available and plans available before the restructuring commission should be allowed to use the unilateral powers the minister will give it. There's nothing in this legislation today that gives the community any assurance that there will be that transitional plan that will let them know how services are going to be provided. There's nothing in this legislation that guarantees that there will be access to services, that the community impacts have been done, that there's been any kind of economic analysis to make sure the right decisions have been made -- and remember, there are no appeals whatever to decisions by the commission, no right, no access to the courts.

We think all these things have to be looked at: alternatives to closures and amalgamations; the impact of reductions on services; the human resource plans are essential; and the community impact, that is, access to service, has to be in place. That's what this says. It's very simple. It makes bad legislation a little better. It's a damage control amendment that is essential to give the community some comfort that this all-powerful restructuring commission is at least going to have to look at these things before it makes a decision to close a community's hospital.

Mrs Helen Johns (Huron): I'd like to comment on this motion. The government believes this amendment is written in a very limiting fashion in terms of the ability of the minister to make decisions. We feel he has to have a broader base. We are unsure about all the implications of restructuring. We know it has to happen, we know we have to move forward with restructuring, but as different issues come from different areas across Ontario, we have to have the flexibility to be able to react.

In Bill 26, the minister makes directions under section 6 in the public interest, and we believe that is the way we should proceed. The public interest is further defined: It says the minister will make decisions in good faith, and that's based on reasonable expectations, reasonable factors, and he cannot use unrelated factors to make these decisions.

The government has tabled motions dealing with notice for both directions -- closure, subsection 6(1), and amalgamation, subsection 6(3) -- to allow hospitals affected to make representations to the minister and/or to the commission by giving them 30 days' written notice. We believe that is due process.

Also, the district health councils' duties are specifically outlined in the act. It says, "The functions of the district health council are to advise the minister on health needs and other health matters in the council's geographic area; to make recommendations on the allocation of resources to meet health needs in the council's geographic area; to make plans for the development and implementation of a balanced and integrated health care system in the council's geographic area; and, to perform any other duties assigned to it under this or any act by the minister."

We believe that many of these directions that you are suggesting should be handled in a limitation section are being handled by the district health councils, by the planning they have already done in the community. We have asked them to do that. We do not believe there is a need to go back and look at all those details again, but to proceed forward and implement the system.

Mrs Caplan: I'm just going to sum up by saying that was incompetent doublespeak. Yesterday on the record you confirmed to us that the minister under this act has the power to act unilaterally, without referring to the district health councils, without requiring district health council reports. You objected to all those amendments that would have put any kind of process in place that would have given communities comfort that any of these things would have been dealt with. This is a last-chance effort to say that at least the restructuring commission should do it.

Mrs Johns, I don't accept anything you say. Let's vote on this. I just hope that the people of Ontario understand what you are doing. No process, no natural justice, no community involvement is guaranteed in this legislation -- absolute dictatorial powers by the minister. Let's get on with the vote.

Mrs Johns: I disagree with you on that, obviously. We believe there is process happening. We believe we're --

Mrs Caplan: There's nothing guaranteed in this legislation. Show me where.

The Chair: Mrs Caplan.

Mrs Johns: -- implementing local planning within the community. We are then taking the recommendations, if there are recommendations, from the community and moving forward with them. We are considering the local aspects, we are doing due process. We will get restructuring done in Ontario.

Ms Frances Lankin (Beaches-Woodbine): Mr Chair, I originally wasn't going to speak on this amendment. We went through this for an hour and a half yesterday on this very same section overall of the bill, where I had an amendment I put forward which would have added just the words "on the recommendation of the commission," just some tiny, little reference that the minister would have to look at. We hear this parliamentary assistant in answer to every question we put to her say: "We've got to restructure. We've got to do it quickly. We don't know what it's going to look like. We don't know how we're going to do it, but we've got to do it quickly."

I wish you had some depth of content to your answers that could give us some assurance that you have at least an inkling of where we're headed with health care restructuring in this province. Perhaps then it wouldn't be so imperative to us to know that the legislation actually gives some form and content to the direction you're going to head in. But you continue to ask for that blank cheque and you continue to refuse to tell us what number you're going to write in before you cash that cheque.

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These sections we're debating: One day you say, "We don't want to have it on the recommendation of the commission because there are circumstances where the minister will have to listen to district health councils," and the next day you say, "We're not going to listen to the district health councils because the minister's going to have to listen to the commission." You won't put any of that in legislation. Don't you understand that what you're left with is an absolute, arbitrary, unfettered power given to the Minister of Health to do what he wants at any time to any services in the health care system in the province?

That's not what health care restructuring is about. That's about a government that doesn't know where it's going, that just wants to have the powers to deal with any crisis, any problem that comes up at any time, without consultation with the local community, without consultation with care providers, without consultation with consumers.

Quite frankly, I think it's of very little sense to continue to debate any sections in this with you because you absolutely stonewall any recommendations brought forward by the opposition. Here we're talking about an amendment which would simply have, as the content of what he has to look at, things like labour adjustment plans as you close hospitals. What's going to happen to the nurses? What's going to happen to the cleaners? What's going to happen to the physicians? You don't want to be fettered by anything. You don't want to be accountable to anybody. You don't want to have any planning that's in any depth.

Ms Johns, this is just an unsatisfactory bill, an unsatisfactory process, an unsatisfactory performance in terms of trying to explain where the government is headed with this legislation. I don't see a reason for us continuing to try to debate with you reasonable amendments when all you can say is no and the only reason you can give is because, "We have to restructure and we have to do it quickly," and you can't give any content in any answer to anything we put to you.

Mrs Janet Ecker (Durham West): I realize that every morning when the TV cameras show up we have to deal with the attempts by everyone to make the evening news, but I really believe that the attempt to say that the parliamentary assistant is not answering the questions --

Ms Lankin: On a point of order, Mr Chair: I take great offence at this member sitting over there talking about people getting upset because there are people from the public or people from the media here watching. If you recall yesterday afternoon when we were dealing with this very issue, when this room was almost empty, I took great offence at the positions being taken by the parliamentary assistant for the Minister of Health, her inability to answer questions, the fact that the minster won't come here and be accountable and yet he wants all the powers unto himself.

So don't start to try and play games because the cameras are on when you're speaking, suggesting that it is all because of media. I'm just so fed up with the arrogance of this government that refuses to listen to any suggestions from the opposition trying to make what we think is a bad bill a little bit better.

Mrs Ecker: Mr Chair, do I have the floor?

Mr David S. Cooke (Windsor-Riverside): On a point of order, Mr Chair: I expect you to rule. The member is not allowed to impute motives to other members, and that's exactly what she has done, and I expect you to rule her comments out of order.

The Chair: Ms Ecker, will you withdraw those comments?

Mrs Ecker: I certainly would not want to impute any motives here at the committee. We've been trying not to do that. If I have imputed motives to anyone here, I certainly withdraw. But I would also like to say that I believe the parliamentary assistant and the government have answered many questions. There have been honest disagreements about some of those answers, but we have put forward answers to these questions.

And I believe it is a little premature for the opposition to be expressing outrage about amendments we haven't even debated yet. We have been prepared to accept some opposition amendments. I'm sure there will be more that we will be prepared to accept. I really think it would be helpful if we could get on with debating those amendments so we can have the give and take that might actually lead to some improvements to the amendments to respond to the concerns we have heard from the presenters before us. I look forward to us getting on with this today.

The Chair: Thank you, Mrs Ecker. Any further discussion on the motion or on the amendments?

Shall the amendment proposed by Mrs Caplan carry?

Ayes

Caplan, Cooke, Lankin, McLeod, Phillips.

Nays

Clement, Ecker, Hardeman, Johns, Maves, Sampson, Tascona, Young.

The Chair: The amendment does not carry.

Mrs Lyn McLeod (Leader of the Opposition): I'd like to table two motions with the committee and I would like to place those motions

The first motion: that the names of those individuals and groups who requested the opportunity to make presentations on Bill 26 to the standing committee on general government and who were denied this opportunity as a result of the government's decision to limit the time for public hearings be presented to the committee as an exhibit.

Mr Chairman, you're well aware of the numbers of groups that have expressed concern. Even today there will be at least three groups coming on their own initiative -- journalists, seniors, nurses -- to express their concern that we've not been successful in getting an extension of public hearings. I did not propose to place that motion again; it has been defeated on a daily basis in both subcommittees. But I do believe it's important for the conduct of this committee to do at least some justice to the public concern, to present to the committee that the names of those individuals and groups denied an opportunity to present be recorded. That, I understand, can be achieved by presenting it as an exhibit.

I have a partial list, and it is just a partial list, of the groups that have been denied appearing. I believe the clerk's office will have a complete list of those groups who sought presentation and who were denied presentation. It's a long list.

Interruption.

The Chair: I think you realize that that is out of order. Please take it down.

Mrs McLeod: No, actually, Mr Chairman, I did not realize it was out of order.

The Chair: I'm sure you do.

Mrs McLeod: I realize that a motion to have these groups present would not be considered by the committee, because it has been defeated on a daily basis, which is why I did not present that motion today. But I believe it's important that the names of those groups and individuals who had done the work to prepare presentations and wanted to be heard should be a part of the record of this committee's proceedings.

The Chair: Thank you. Any further discussion on the motion?

Mr Tony Clement (Brampton South): It's my pleasure to speak against this motion for the simple reason that the wording in it is inaccurate and incorrect and is revisionist in its history. In fact, the schedule of this committee was agreed to by all three House leaders and sanctified by the Legislature. It was not the government that drew up the order of this committee.

Ms Lankin: Point of order.

Mr Clement: It was in fact a three-party agreement by the House leaders. So the wording of the mover's motion is incorrect, and I --

The Chair: Excuse me, Mr Clement.

Ms Lankin: On a point of order, Mr Chair: You're a very fine Chair, but on a point of order you need to interrupt the speaker. Mr Clement, even though he can hear me, obviously won't stop.

I don't have a copy of the motion in front of me. I don't know the points he's making with respect to this motion. I would appreciate it if it could be circulated or re-read so we have a clear indication of what's being debated.

The Chair: The motion is being copied. Mr Clement had the floor. Did we want to wait until we have copies of the motion?

Mr Clement: I've now read it, and my objection stands, Mr Chairman. The words are seared in my memory.

Mrs Caplan: Day after day, we have asked the government to reconsider the fact that it has shut out hundreds and hundreds of presenters, people it has dismissed as "vested interests." It could not possibly have been contemplated, the numbers of people who would have wanted to be heard.

Mr Terence H. Young (Halton Centre): On a point of order, Mr Chair: I don't believe you can debate an exhibit, and this motion refers to an exhibit, so it's out of order.

The Chair: The motion is in order and it is debatable.

Mrs Caplan: Thank you very much, Mr Chair. The reason the motion is in this order and has an exhibit attached to it is because we were told that to read all those names into the record would take such a long time that we decided in the interest of just getting the point across to you that we would put it in the form of an exhibit before this committee.

There has been an unprecedented number of groups, individuals and people who wanted to present before this committee who have been turned away. It is unprecedented. Nobody could possibly have contemplated how many people wanted to come before this committee. We have heard less than a third of those who wanted to be heard. You have shut them out.

When Mr Clement makes his defence, I would say to Mr Clement, I was at the meeting when Ernie Eves said he wanted this bill with no public hearings. If it hadn't been for the efforts of the opposition parties, we would not have had public hearings across this province.

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So let me tell you something. You are being so unreasonable in wanting to have all of this done, passed and finished without the hundreds of people who have expressed an interest to come before this committee and let you know what they think is wrong with this bill. If you do not let them be heard, they're going to make their voices heard. As our leader said, they're coming to Queen's Park to hold press conferences. They're coming to your members. They're coming to us to say, "Why won't they at least let us be heard?"

We have tried day after day to ask you to extend the public hearings, but we at least want you to know how those people feel and who they are. That's the purpose of this motion and that's why we hope that the committee members who have to go back to their ridings, committee members who we know were not briefed on this bill before it was presented -- you didn't see it. You didn't know what was in it. You are just beginning yourselves to understand the full implications of this bill. So are the people in the community, and they demand to be heard. You've bullied them with this bill, you've shut them out and you're determined to ram it through. We're not going to let you do that without at least making sure that you know who you're slamming the door on. That's what this motion is about.

Mr Cooke: I have a question first, Mr Chair, that I would like to ask you and then I would like to speak to the motion, depending on your response. What is there that requires the approval of the committee, since the Conservative members obviously don't want the motion to carry? Is there anything that prohibits a committee member from tabling anything with the committee and then having it printed in Hansard? Could you not approve that as Chair of the committee?

Ms Lankin: That wouldn't stop Mr Clement from defeating this reasonable request. He would just do it.

Mrs Caplan: Absolutely.

The Chair: A member of the committee is entitled to file anything they want with the committee.

Mr Cooke: And then would that be recorded in Hansard?

The Chair: It would be entered as an exhibit in Hansard.

Mr Cooke: So, in effect, even though the Tory members would like to prohibit this from happening, it will happen because of the procedures in the committee. The exhibit will be tabled and will be on the record. The motion doesn't --

The Chair: The motion basically --

Mr Cooke: -- wants it exhibited.

The Chair: That's right.

Mr Cooke: Okay. Mr Chair, just a couple of brief comments. I guess what your ruling, which is pretty logical, reinforces to me is the absurdity of the Conservative members, and particularly of Mr Clement, to come in here and say, "I'm going to vote against a motion" that says the Leader of the Opposition wants to table something as an exhibit. And we're supposed to take this process seriously when they come in here and they say: "We don't even want you to file an exhibit. We're going to vote against an opposition party from even filing an exhibit." They have come in here with their orders and they are acting like a bunch of robots to do whatever they think the government House leader wants them to do. That means voting against everything, anything, totally that the opposition parties suggest.

This is, to me, the most absurd action that I have ever seen in this place taken by a government caucus. Absolutely ridiculous that Mr Clement would come in here and say, "I don't even want that filed as an exhibit." Why don't you just do what you really feel you want to do, close the Legislature down for the next four and a half years, act like a bunch of Fascist dictators and run the opposition out of the province, because that's what this is all about. That's the way you behave, and I think this has hit new heights of ridiculousness.

Mr Clement: On a point of personal privilege: He's imputing motives.

Mr Cooke: There's no language I've used that's unparliamentary.

Mr Clement: I would request that he withdraw that remark. He's imputing motives.

The Chair: Mr Clement has requested that you withdraw your comments.

Mr Cooke: I don't believe there is anything that I have said that has anything to do with motives. I've described what I've said the action of the member is. There are no motives. It's very clear. I've said they're acting like a bunch of Fascist dictators. That's not imputing motives. That's a description of the behaviour I have seen here this morning.

Mrs Caplan: Now remember, I didn't say that; Dave Cooke said that.

The Chair: From the basis of a judgement standpoint in my position, I agree with Mr Cooke.

Mr Gerry Phillips (Scarborough-Agincourt): Just to speak on the motion, it is quite extraordinary. I think anybody who is watching this must be shaking their heads at the government. I think even the government members wish they could take back your decision, Mr Clement. Let's just review this situation. I think Mr Clement will change his mind before the debate is over here, but let's just review the situation.

The bill has an incredible impact on everybody in the province and you originally, as my colleague said, tried to pass it with no debate -- absolutely no debate, zero debate, all done in two weeks. Through the efforts of the opposition, and I think a fair bit of public support, at least we had an opportunity for some groups to be heard. Now, we only heard, as we all acknowledge, from one third of the groups, and there are some enormously impressive groups that we never heard from. In fact it was only through our efforts at the last minute that many of the mayors in the cities we were in were heard. They weren't even going to be heard. You look through the list of people who haven't been heard and it is an impressive list of public-spirited organizations in the province.

Mrs Caplan: That's right, public-spirited.

Mr Phillips: I absolutely guarantee that their briefs have not all been considered -- absolutely guarantee it. But surely, as an absolute minimum, all this says is, "At least acknowledge the groups that presented briefs to us that we didn't hear; put it in Hansard so at least they can be aware that we got their brief, that it was part of at least the background record."

This is extraordinary. I hope the public all listen to this. What we heard from the government was, as soon as the motion was tabled, the first government member who spoke said, "We're against it." And then some members said, "We'd like to see the motion." So when they looked at the motion, "Well, we're still against it," even though they hadn't read the motion. All it does is say we will have as an exhibit the groups --

Mr Clement: It does not say that.

Mr Phillips: If you don't believe that's what it says --

Mr Clement: "...and who were denied this opportunity as a result of the government's decision...." That's what it says.

The Chair: Mr Clement, Mr Phillips has the floor.

Mr Clement: I'm sorry, Mr Chairman, you're right.

Mr Phillips: Excuse me, but I think the most we could get out of the government -- and it was your decision, believe me. The NDP and the Liberals, as we've said every single day this hearing's been held, think the hearings should be extended. We have said that every day, and it has been the government members who have rejected that. So I will defend the wording of this motion because it's you, government members, who have denied the public the right to be heard.

Mrs McLeod: How can you deny what's fact? It's in the record.

Mr Clement: It's the House leaders' agreement.

Mr Phillips: If the public would listen to this, what the members are saying is that it was the House leaders' agreement. I will take us back to when you had the gun to our head. You were not going to have any hearings. We took the most extraordinary steps. My colleague Mr Curling took an extraordinary step that many of you called unruly behaviour, disrupting -- hijacking Parliament is what you've said.

Mr Young: Well, it was.

Mr Phillips: "Well, it was." That's what he says.

Mrs McLeod: He still agrees with that. He's nodding his head.

Mr Phillips: You see, I think the public again should recognize that what the Conservative members are saying is it was disrupting Parliament. So we forced you to have three weeks of hearings. We clearly would have preferred more hearings. You know that, and to say different is --

Mr Young: You're on the record saying that was enough.

Mr Phillips: Mr Chairman, Mr Young is lying again.

Mr Young: Mr Chairman, on a point of order: Mr Phillips is using unparliamentary language. It's not the first time this week. We've been sitting, trying to listen. We've been putting up with this abuse for days. It's getting a little bit ridiculous. We've heard about cartoon characters from Mr Cooke, cartoon characters from Mrs Caplan. We've heard unparliamentary language. Let's get on with the clause-by-clause, please.

Interjections.

The Chair: Excuse me. Mr Phillips, are you prepared to withdraw that?

Mr Phillips: The member said that someone in the Liberal Party said these hearings were enough. I don't believe that to be the case.

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The Chair: Mr Phillips, on the point of order, I did hear some unparliamentary language. I'd like to request that you withdraw that, please.

Mr Phillips: Well, I withdraw that he was lying. I will just say that what he said bears no relationship to the truth. I will continue, because what he said clearly is not true.

All this motion calls for is the tabling as an exhibit the list of people who were denied by the government the right to be heard. What could be more reasonable? But what it shows to the public is you're in here with your marching orders, reject everything from the two parties except a couple of amendments. Try and find somewhere in all of these amendments one or two of the Liberal amendments, one or two of the NDP amendments that you can revise and then support. At the end of the day, I will be surprised if they accept three NDP motions and three Liberal motions. I will be very surprised if they go that far.

But they won't even do what I think any reasonable person would say is, essentially, simply reasonable. So I would hope that the government comes to its senses, realizes it made a mistake in rejecting this motion and agrees to it.

Mrs McLeod: Mr Chairman, I hope we can get on to the vote on this motion. I accept the fact that Mr Clement cannot rewrite the facts of what has happened, in spite of his very selective recall. I would like to stress the fact that this is not a game. You will know that as I've sat on the health subcommittee for the two weeks of its hearings, I have consistently made an effort of tabling for the record any written presentation which was presented to the committee. I believe it's important that people who wanted to present have that noted in the record of Hansard.

I did not seek to read into the record today the names of the people who were denied opportunity to make presentation. It may well have been out of order in any event, but I did not want to delay debate. I simply wanted at least a partial list of those people to be exhibited, as the clerk indicated would be in order. I would hope it could be added to the full list that the clerk's office would have that we would not have, because ours was just a partial list.

I did not expect this to require debate. It's simply asking that their names be noted in the record in whatever way is in order. Surely, we can get on and vote on this. I can't believe that the government would have any hesitation with that at all.

The Chair: Any further comment?

Ayes

Caplan, Cooke, Lankin, McLeod, Phillips.

Nays

Clement, Hardeman, Johns, Maves, Sampson, Tascona, Young.

The Chair: The motion is defeated.

Ms Lankin: On a point of order, Mr Chair: I would just like to request of the Chair if he could seek from the clerk's office the list of those groups who applied to appear before the committee and were unable to because there wasn't sufficient time and provide a copy of that to all members of the committee, which I think then would be an exhibit that is tabled and would be recorded in the Hansard record.

The Chair: If that's the committee's wish, the clerk's office can do that.

Ms Lankin: Any member can make that request. I've made that request.

Mr Clement: We have no objection, Mr Chairman.

Mrs Caplan: That was the motion you just voted against.

Mr Clement: It was not. You are lying now.

Mrs McLeod: Mr Chairman, I do wish to place a second motion. I guess I'm pessimistic before ever placing it, because the government seems to believe that we are playing a game here and that's not the case. So if I may place this second motion in the hopes that this one would engender some serious debate. I move:

"That the government House leader be requested to seek unanimous consent of the House in order to amend the December 12, 1995, order with respect to Bill 26 in order to refer back to the committee on general government those schedules of the bill which were not debated in committee prior to the amendments being placed at 1 pm on Friday. Consent would also be sought to consider the remaining schedules in clause-by-clause review during the week of January 29, 1996, and to be reported back to the House on Monday, February 5, 1996."

Mr Chairman, I understand that this motion is in order because I had the advice of the clerk as to a way in which I could place this that would be in order. I do present it as what I believe to be, and I say to the government members in all honesty, a reasonable motion to present from this committee to the government House leader. It is not a motion to extend the hearings indefinitely or to defer voting on this bill indefinitely. It is a motion that reflects the fact that it has become only too apparent that we are not going complete any form of debate on this huge amendment package that's before us.

We've all seen just the size of the amendments that are going to have to be debated in committee. It was not possible; 141 of these are government amendments. You cannot do justice to debate on these amendments in a single week. It's become apparent to us at this point in time that there are going to be major schedules of this bill that will not be touched in debate at all, and that includes the changes to the drug benefit plan, the changes to OHIP, the way in which our health care is funded, the effects on physicians. It includes the entire municipal section that we may not get to, freedom of information, pay equity, the Conservation Authorities Act. We've had witnesses at our two subcommittees over our weeks of hearings who have spoken to all these issues and their evidence should be part of the debate on the amendments.

I think if we do not take some more time to ensure that each of the amendments does receive some debate, we will have made the public hearing process meaningless. If we can seek unanimous consent of the House to vote Monday on all of those schedules which have been debated in committee and then to agree that we would return one week later -- so there is a finite time attached to this -- in order to consider the balance of the schedules which we would have then been able to debate that week, we could devote our time for the next day and a half to those areas which the government considers to be a priority for passage on Monday, although in fact a single week's delay would not have a significant impact on the implementation of any of the provisions of the bill.

I present this motion, Mr Chairman, in the sincere hope that the government that says that it has valued the public hearing process, that has listened to the people who have made presentations, would equally want to have a reasonable debate based on the evidence that we've heard over three weeks of hearings.

Mr Cooke: This motion is essentially the same as the motion we tabled that would ask for continuation of clause-by-clause and therefore an agreement on Monday that the bill be referred back to the committee to deal with the balance of the bill. I might say, in looking at the Liberal motion, that there is obviously a committee that has drafted this motion because there are three different handwritings that are used.

Mrs McLeod: It's tricky to get one that's considered in order.

Mr Cooke: But I think this is just reasonable. The government House leader and his staff must be watching these hearings and this process and they must understand that in addition to the hundreds of people who wanted to be heard who were refused, there hasn't been -- and the Conservatives can say, "Well, it's because there's been procedural wrangling." That's simply not the truth.

The fact is that when we go through the bill, there's been some of that, but there's been primarily discussion on important parts of the bill. There have actually been, and I go back to the toll road discussion the other day, new aspects of the bill that have been revealed as a result of a discussion on the bill, and it only makes good common sense -- a group of words that is rapidly becoming a phrase that should never be used in the province again.

But it would just make for good public policymaking to allow more time to properly go through this bill and review what the government is attempting to do so that there's a full understanding, I would argue, not only on this side but over on that side as well.

I think what has become painfully obvious in the last couple of days is that the parliamentary assistant on the health side, who's been given, I would say, the horrible job by the Minister of Health of coming forward and defending a bill she had nothing to do with, just as all the Tory committee members here weren't consulted on this bill; there wasn't a caucus meeting on this bill ahead of time. They were just told: "Go into the House, vote in favour of it. We're running at 53% in the polls. You got elected because of Mike Harris and therefore you do what Mike Harris tells you to do and the hell with democracy in the caucus, let alone in the province."

1040

I think this would be a pretty positive sign to the province and to the Legislature that there is some understanding about the democratic process in the Conservative caucus. Then, of course, it would be up to the government House leader and up to the cabinet itself to decide whether they were prepared to amend the motion. That could be done. If this motion were passed -- I can certainly speak on behalf of my caucus -- I'm prepared to meet with Mr Eves in the next hour, this afternoon, tonight, tomorrow morning, to discuss this. I'm sure the House leader for the Liberal Party would be prepared to do the same thing. We could come to an arrangement on this in the next few hours to have this properly dealt with.

We're not talking about a huge delay. We're talking about proceeding with certain parts of the bill and then a delay that would be a matter of a few weeks. I doubt if that is going to make a big difference, other than a positive difference, in developing and passing laws in a proper, democratic way.

Mr Clement: I would speak against this motion. The mover, I believe --

Mrs McLeod: Do you want to think about it before you actually vote against it?

Mr Clement: I can actually think pretty quickly, Ms McLeod. Thank you for your advice.

The mover of the motion did mention game-playing, and my only retort to that would be perhaps there are games within games. The mover of the previous motion knew full well that the list of persons who desired to speak was a matter of public domain in the Globe and Mail.

This is now Thursday. We've spent the first 12 hours of this committee debating motions before we even got to clause-by-clause in schedule A. We spent one hour yesterday debating whether the campaign manager of the Progressive Conservative campaign should be required to testify before this committee. That was moved by the Liberals, I believe.

The fact is that nothing prevents any House leader from raising a matter with another House leader, and if the House leader for the Liberal Party of Ontario wishes to raise something with Mr Eves, I wish him Godspeed; similarly with Mr Cooke. But I feel that this committee has, number one, tried to deal, on our side, with the clause-by-clause as expeditiously as possible, while still allowing for meaningful debate, and I do not feel at liberty to break the House leaders' agreement. We prefer to stick to the deal that was arranged by all three parties to give the time that the parties felt was necessary for public involvement.

But ultimately we, as legislators, have to legislate. We have to get on with the job of dealing with the chronic problems in the province. Even delaying for a week, by my calculations, if we are spending $1 million an hour more than we are taking in as a government, that costs us $168 million, which I would prefer to spend on health care. I cannot in good conscience support this motion.

Mr Tony Silipo (Dovercourt): I've expressed before in this committee the sense of frustration I feel as we're going through this process. I have to say, I sense it is shared by even some members of the government side. I'm flabbergasted by the kind of stonewalling we continue to see by the government side, expressed more often than not by Mr Clement on behalf of the government, without so much as a pause to reflect upon what they're doing, even though there has been instance after instance where they've come back to regret the steps they've taken.

I would have thought that on a motion like the one before us from the Liberal caucus, which, as Mr Cooke indicated, is very similar to one we had tabled, which simply says that taking into account the fact that we will not get through this bill -- even if we had proceeded at a much speedier rate, we would not get through clause-by-clause of this bill, given the significant amendments from the government, let alone those from the opposition. We will be fortunate, I suspect, if we get through the rest of the health portions of this bill by 1 o'clock tomorrow, and there are other significant issues, as significant as the health pieces are, that we will not have a chance to look at.

What this motion is saying is, allow us an additional week so we can get through those sections, so we can debate the amendments. It doesn't even deal with the problem we have put before the committee day after day with respect to the hundreds of people who wanted to speak to the committee who didn't get a chance to speak. We're not saying, let's go back and have more hearings. We're saying, let's give the members of this committee an opportunity to go through the sections of this bill.

All this would cause is a delay of one week in the government's time lines to get the bill passed, and even that they find unacceptable. It just begs the question, what is acceptable to them? The answer, I think, is nothing. They keep talking about their willingness to accept amendments. From the combined amendments presented by the Liberals and the New Democrats to date, one amendment -- one amendment, Mr Chair -- has been accepted by the government.

Mr Cooke: After they neutered it.

Mr Silipo: And that's after they made significant changes to it.

Where's the openness? There is clearly no willingness to listen at all. There was clearly no willingness to listen to the public, there's no willingness to listen to any of the amendments we're presenting, and there clearly is no willingness to be flexible at all, on something where they could show some sensitivity to the screwups they've caused, to the attack on the democratic process they've caused as a result of the way in which they've proceeded with this bill.

Here's a great opportunity for them to say, "We think a little bit more time is okay," and Mr Clement comes in and says, "No, we're just not going to vote for this." I can just imagine the instructions and the briefing sessions the government members came into this committee with, particularly Mr Clement as the government whip. I can just see them, "Just go in and say no; until we tell you otherwise, anything that comes from the opposition is no," because that's all we've seen so far.

I say to the government members, they've got the majority and they will undoubtedly do what they want to do. But I also say to them that they will regret these actions. I would be interested to know if, a year from now, many of those same members sitting in this room will not, more openly than they are saying today, also admit that they regret the actions they're taking here today, because I think they will. They will discover as they go along that what they are doing here today and what they have done by the way they've handled this bill will come back to haunt them. It will not be something they can shake off by simply ramming this thing through as quickly as they can. They will not be able to shake off the affront to the democratic process and the affront to the people of the province that they have demonstrated throughout their handing of this bill and are demonstrating yet today on what is a very reasonable amendment being proposed to the process for this committee.

Mrs McLeod: Mr Clement must be getting rather desperate in trying to defend the indefensible when he trots out the old line, "The debt is going up by $1 million an hour." I defy Mr Clement, or any other member of this committee, to find one single part of this legislation which would have an immediate impact, on Tuesday morning, January 30, if it is passed on January 29. A week's delay is not going to affect the implementation and therefore your ability to go out and make your cuts as fast as you want to and as unilaterally as you want to, because at the end of the day we know you're going to give yourself those powers.

All we are asking for is that some justice be done to the presentations that have been made to this committee through some reasoned debate over the course of a single week, and I cannot believe that you would continue to find that so outrageous that it didn't even deserve a moment's consideration. I am becoming more and more convinced, not suspicious, that it is the Conservative campaign manager, Mr Long, who has written the script for this committee before it ever sat down, that he's saying day after day: "Don't consider a single moment's delay. We can't afford to be out there one moment longer, because every day we're out there we're getting beaten up. If you let anybody else come and talk to this committee or if you let any other debate take place, it's going to become obvious that this is bad legislation and we're going to hear only from people who are worried and who are ready to criticize us. We're getting beaten up on so many other fronts that we can't afford to get beaten up on this one any longer, so get us out of this as fast as you can."

Make all the statements you want about how open you are, even though you were forced into these hearings. Make all the statements -- I've listened to you day after day say to witnesses: "We appreciate your presentation, we're glad you were here, thank you for coming. I can assure you the Conservative government is listening." You won't give them a single week longer, you won't let others come, and you won't even let us take one week longer to at least debate the amendments you've put forward. Even your own amendments are not going to get debated. You simply want to ram your amendments through the way you wanted to ram this legislation through.

Mr Chairman, the reason we are spending time debating proposals for procedural change is because we feel really strongly about doing some justice to the public consultations we fought so hard to get, because we believe this is bad legislation and that in a debate we can hopefully make the government realize it needs changes.

I think we feel as though we had some success when we see the government bring forward 141 amendments. We want to consider those amendments; we have put a lot of work into our own and we'd like to consider those amendments as well. We believe they respond to concerns that were presented to our committee in the public hearings. The only reason we debate them so long is because the government seems to think that anything we propose is a game and outrageous, yet they want to challenge our right to do it.

1050

Mrs Caplan: I think this amendment is very reasonable, and people should understand what it is we're attempting to do. We're saying that the amendment process, the clause-by-clause process, is extremely important. This is the first opportunity we have to have any questions answered, to have any thoughtful debate.

There have been very serious and important issues in the amendments that have been put forward that we have discussed. We've had to and fro; we've had the opportunity for the government to overrule us time and time again. But what we're saying is that those clauses that have been finished can go forward to the House for a vote. For those we haven't dealt with, we're asking for one more week so we can have continued thoughtful discussion. While we believe this is a bad law, it is made better, even only slightly, by the scrutiny, the amending process.

In support of that argument, I want to say, particularly to the new members of the Conservative caucus who are on this committee, that I've been here 10 years and I have served in opposition and I have served in government. I fundamentally disagree with what Jim Wilson said the other night on CBC when he said that everything he did and said in opposition was simply pandering.

I want you to know that I don't think that is what -- I was appalled when he said that. I want to assure the members who came to this House to be lawmakers and to make good law -- and when they ran, they didn't know they were going to be in government. I have always believed that whether you sit in government or whether you sit in opposition, you can influence and improve proposed legislation. As a member of the government back bench, you can and should be able to do that. That's what your caucus process and your committee process internally is about.

One of the places you can do that is at committee. We have always talked about the need to have thoughtful consideration and real participation from all members of the committee. I'm not saying that today because I'm a member of the opposition. I'm going to give you an example of where I did that when I was in government, so I'm not asking you to do anything today that I didn't do when I was in government. That counters Jim Wilson's point about behaving differently in opposition than in government. I want you to know I have been absolutely consistent.

When I brought forward the Independent Health Facilities Act, it was, I would suggest, significant legislation. But I'll tell you, it was not as significant as the health policy implications contained in Bill 26. What was the process I undertook with that bill?

First, I put forward the intention, the goals and the objectives, clearly stated. Second, there was no time allocation on that bill. Third, I was at committee every single day to hear the public representations and the deputations that came before that committee.

At the end of that process, when there was a significant amendment placed by an opposition member that I wanted to accept, we held an additional week of public hearings to allow those who would be impacted by that amendment to come and have their say. I was there for every day of those public hearings. We sought thoughtful amendments and accepted amendments, substantial amendments, from the opposition parties, and technical suggestions and changes to make that as good a law as it could be.

I was there for every day of clause-by-clause debate. That was not unusual. What is unusual is to have substantial law where there is no discussion of goals and objectives.

Mr Cooke: How can you remember this? This is part of the 10 lost years.

Mrs Caplan: This is important history for the new members who came here to make good law, whether in opposition or in government, and who are listening to a very cynical, petulant hothead by the name of Jim Wilson, who had the gall to go on TV and tell people he never meant anything he said when he was in opposition.

Well, I want to go on the record today to say I meant everything I said when I was a minister, I meant everything I said when I was a member of the government back bench, and I mean everything I say when I am in opposition. I am not saying anything today that is any different from the things I have said in this House over a 10-year period. People have to know that if they're going to believe any of us have any integrity. And there must be integrity in this process.

All we're asking for is that we take the motions that have already been dealt with, those sections of this bill, and deal with those in the House. I'll vote against them; that's my right as a member. But it's also my right, as a representative, to have a chance thoughtfully to review the amendments you have placed to this bill.

All we're requesting today is an opportunity, a recommendation from this committee, that the government House leader meet with the opposition House leaders to discuss a process that would allow for one more week of thoughtful debate, consideration of the amendments you have placed.

That is reasonable. It will lead to better law. If this bill had passed as you had intended before Christmas, we would not have had the chance to have even the amendments that have been put forward. You know this process works and is important. You, the members of the back bench, the new members of this Legislature, if you're ever going to make a difference in this place, surely to God you would want to have a chance to debate your own amendments as well. That's all we're asking for: a little more time to give some thoughtful consideration to serious amendments that have serious public policy implications.

I today offer the Minister of Health my help, my advice as a former minister. I believe I can make a contribution as a member of the opposition to improve even marginally some of the provisions of this bill. I am not here playing games and I'm not here to be confrontational. I believe in the committee process, and I'm asking you, as members of the government, to help us all make a difference in this place by giving this the consideration it needs.

Mr Phillips: The motion is so eminently reasonable, it really is. For the government members, think back now and try to recognize -- you're eventually going to have to defend this decision. Even when you agreed to the time for the clause-by-clause, what you told us then was: "We don't think there'll be any amendments. If there are, there'll be one or two." When you set the time for this, you had to believe, because your bill was so good that you wanted no debate on it, there were going to be very few amendments. Well, you can see you've got 141 amendments now. If you believed one week was all that was necessary to debate the four or five amendments you planned, doesn't logic tell you that maybe we may need a little more time to debate the 141 amendments?

I know the problem you're in. You're here trying to cover up, frankly, the incompetence of the ministers. My view is that come Friday night at 6 o'clock, they better hold, over in the Premier's office, a very nice reception for you people. You'd better get the recognition you deserve, because you're being made to look foolish, personally very foolish. Now, luckily only Mr Clement talks, so not many people at home see you on TV. This Mr Clement's carrying the can here. But you really look very foolish, and, as I say, I think whatever the hero badges are for the revolution, you better head over there at 6 o'clock to the Premier's office and -- I watched the civil war thing a little bit -- old Stonewall Mike will have some hero badges for you and thank you very much for carrying the can for the ministers.

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Mr Clement: I should be so lucky.

Mr Phillips: Well, you should be so lucky, Mr Clement. There has to be some reward for you, because in all seriousness, you're made to look personally incompetent because you're carrying the can for ministers who refuse personally to take responsibility.

So we've got a motion that any sensible person, if they had the authority, would support, and you're going to have to defend to the firefighters, to the police, to the municipalities, to the public sector pension people, all the ones we will have no time to debate your amendments, why you wouldn't agree to another week of hearings.

When these times were set, surely you're not telling us that you knew there'd be 141 amendments. Surely you yourselves have to acknowledge there are far more amendments, far more changes to this bill, than you had ever contemplated.

But, as I say, the problem you face is you're under marching orders. You're the ones that are going to look foolish. You'll get some little reward Friday afternoon when Stonewall Mike has his reception and pats the Chair and the others and, "You did a fine job of keeping us away from the heat." But you are looking very foolish on this, Mr Chair, and I would hope the government might recognize that maybe you personally can save a little bit of face by adopting what is, by any definition, a reasonable amendment.

We'll pass the part of the bill that we've covered on Monday; the rest of the bill we will set aside time. And we'll need more time, Mr Chair, than just 10 till 6. We'll need more time next week to make sure we've got adequate time for reasoned debate on it. But Mr Clement, under orders from Stonewall Mike, is going to, I gather, instruct the government members to vote against what I think the public would say, "Well, for heaven's sake, this is absolutely reasonable."

The Chair: Mr Patten.

Mrs McLeod: Who is running a leadership campaign here? I'm really disturbed by that comment.

Mrs Johns: Pardon me?

Mrs McLeod: I heard your comment about leadership campaigning, and I'm just disturbed that that should be -- I'd like to know who she thinks is running a leadership campaign here.

The Chair: Mrs McLeod, Mr Patten has the floor.

Mr Richard Patten (Ottawa Centre): Mr Chairman, thank you for the opportunity to speak to this motion. In the context of the big picture, it seems to me that this is a reasonable request. I'm quite aware that the problem we have here, of course, is that the decision-makers are not at the table, that you really are representing the ministers and those who have made this policy and that your job will be assessed on how closely you stood and protected what was presented. I can understand that. That's part of the responsibility.

But at the end of the day, six months from now, when the bill is through and the implications are becoming apparent to those affected, I'd like to point out one dimension that you're going to have to face, and, Mr Clement, I'd like to make this point to you in particular. Mr Chairman --

Mr Cooke: He's talking to his arrogant sidekick.

Mr Patten: He's listening for his walking orders, I suppose. But I did want to make a point, and I'd like, if you don't mind, to have you listen to it.

The point is this: The ramifications of the powers of this bill for the Minister of Health I believe are unprecedented, and I'd be interested to hear from Ms Johns later on to know whether there is one Health minister in all of Canada that has anything resembling the kinds of powers that this Health minister will have. We've made a few calls out of my office, and the indications are, in three provinces, that certainly is not the case. I wish I had the time to complete it. But I would like to ask whether in fact it is true.

I would suggest that it isn't, and because it isn't, there is a very dangerous precedent that is being set here and that will be set on the 29th. I'll come back to relate it to this motion, but I do want to make this point because this is a very important backdrop, because what will actually happen, and I'll say this to my colleagues on the government side, is that by moving in this direction without any qualifications or any accountability -- I use the word "accountability", not "responsibility" -- for the Minister of Health, you will be diminishing your own role and your own potential influence, you who are not in cabinet, you who are not members of the executive council. It has that kind of implication.

So in six months, when people start to say, "Hey, I didn't realize how we're being affected here, and I didn't hear this discussed at the committee. How come?" "Well, we ran out of time." "Well, were these not proposals or amendments that were put forward by the government side?" "Yes, they were." "Well, why did you think it was not necessary to consider some of these when we heard from other members of the Legislature that they were important, that they were pointing out some things that needed to be reviewed and discussed and debated," while I'm not a prophet, I would prophesy, and I think it would be fairly safe to prophesy, that given the overall extent, given the implications, the time that's required, the complexity of what we are charged to do in such short order, that the implications of that go far beyond a particular service at a particular time, we're really talking about an impact on the Legislature itself, the powers of this government.

You know, our parliamentary system is based on precedents. We're setting a very serious precedent here that I think will have ramifications beyond just the powers of the Health minister, because next week the Minister of Municipal Affairs will say, "I'd like to have those powers too," or the Minister of Environment say, "I'd like to have some of those powers too, to do basically whatever is expedient to be done." In terms of responsible government, it will be a sad day on the 29th when this goes through.

In that context, it seems to me that this motion is not an unreasonable one, to be able to say, "Yes, we did take that extra time." I would challenge that it's going to be any more costly in terms of addressing the deficit, but we certainly want to make sure, and I'm sure you want to feel good when your constituents ask you, "How did you vote when you were asked to have an opportunity for the committee to review recommendations and amendments that you put forward and you didn't want to do it?"

The Chair: Any further discussion on Ms McLeod's motion?

Ayes

Caplan, Cooke, Lankin, McLeod, Phillips.

Nays

Clement, Ecker, Johns, Maves, Sampson, Tascona, Young.

The Chair: The motion is defeated.

Mr Rob Sampson (Mississauga West): On a point of order, Mr Chairman: If I may, on Tuesday I was asked to obtain a letter from the Information and Privacy Commissioner with respect to schedule E and subsequent discussions with respect to schedule E and the ministry in regard to the transponder issue. I have that letter and I'd like to table it now, if I can, with the clerk.

The Chair: Thank you, Mr Sampson.

The next amendment that we are to consider is page 33, and it's a New Democratic Party amendment. Oh, Mrs Johns, sorry.

Mrs Johns: I have six government motions that I would like to table with the Chair and have them distributed to the committee members, please. They're replacement motions.

Interjection: They're amendments to amendments is what they are.

Mrs McLeod: Six more? Were there drafting errors in the first ones, or is this a recent discovery of a problem?

Interjection: Improvements.

Mrs McLeod: Exactly why we need --

The Chair: Thank you, Ms Johns. Ms Lankin.

1110

Ms Lankin: Mr Chair, did you indicate that we were proceeding to motion 33? Okay.

I move that subsections 6(5) and (6) of the Public Hospitals Act, as set out in section 6 to schedule F of the bill, be struck out and that the following be substituted:

"Amend, revoke direction

"(5) Upon the recommendation of the commission, the minister may amend or revoke a direction made under this section.

"Recommendation of commission

"(6) A recommendation of the commission referred to in this section shall,

"(a) be based on consultations between the commission and a district health council and on the advice and recommendations the commission received from the council as a result of the consultations;

"(b) include a labour adjustment plan for all health care workers, including physicians, who are affected by the proposed hospital closure or amalgamation or the proposed reduction in services; and

"(c) include a report prepared by the commission which sets out the commission's reasons for the decision.

"Limitation

"(6.1) At least 30 days before making a direction under this section, the minister shall table the recommendation in the assembly and shall hold public hearings with respect to the proposed hospital closure, amalgamation or reductions of services."

Very briefly, Mr Chair, I think you can see that this continues the theme that I have been speaking to under this section in which I believe the minister, in using the powers he sets out for himself, should have some discretion and some fettering, and that should include a report from the commission. I believe the commission, as is the process Mrs Johns has indicated over and over again would be what happens in reality, should consult with district health councils. Any plan to merge or close or amalgamate a hospital should have a labour adjustment plan for all health care workers who will be affected that can be tabled, and the commission, in making a report to the minister, that report should be set out and the reasons should be set out for their recommendation.

The limitation, which gives a 30-day period before making the direction under this section, the provision for tabling a report in the Legislative Assembly and the opportunity for public response to that where there's going to be any direction to close or amalgamate a hospital or reduce services, does not add any time to the process as envisioned under the government's amendments. You will know that the government has indicated that it would provide a hospital with 30 days' notice before taking steps to implement any direction under section 6 with respect to closures or amalgamations of hospitals. This is the same 30-day period. We're saying when notice is given to the hospital, similar notice of intent to use the powers under this section should be tabled with the Legislative Assembly, and that would provide an opportunity for public scrutiny and public response to the government during that same period of 30 days that it has provided to the individual hospital.

Mr Chair, if it facilitates anything at all, I would appreciate knowing from Ms Johns whether she intends to support this amendment or any version of this amendment or to table anything that will address any of my concerns. If the answer to that is no, then I'd say just move on with the vote and let's stop playing games with this.

Mrs Johns: First of all, when we get to section 9, we intend to introduce a motion that will take into effect what Mrs Lankin -- Ms Lankin -- has been requesting. I guess I probably should read that to see if that helps in some regard:

"I move that section 6 of the Public Hospitals Act, as set out in section 6 of schedule F to the bill, be amended by adding the following subsection:

"`Matters to consider

"`(10) The minister, in issuing directions under subsections (1), (2), (3) or (5), shall have regard to the district health council reports for the commission to which the direction relates.'"

Ms Lankin: Mrs Johns, could I just ask you, I haven't seen your amendment, but I presume that you actually meant to say "reports for the communities" to which they relate, not "the commission" to which they relate.

Mrs Johns: I'm sorry. Thank you.

Ms Lankin: Just a guess on my part, given that it's the same wording of my motion for the fettering of the commissioner.

Mrs Johns: Thank you once again for keeping me on track. So "reports for the communities to which the directions relate."

Mr Sampson: Mr Chair, a procedural order: Do we now have two motions on the floor?

The Chair: No. In responding to the question, Mrs Johns was just telling Ms Lankin what we were going to deal with later on, because I presume that has not been tabled.

Mrs Johns: That's right.

Mr Sampson: Okay, I'm sorry.

Mrs Johns: The minister has clearly said that voluntary agreements work best, but implementation and restructuring are complex and frequently they run into roadblocks. The commission will be able to overcome some of these roadblocks, we believe, but we have to have effective policies for planning and we need to have a process to be able to implement that. We've been talking about this for the last two or three days; I've been saying the same thing. We believe this commission will be the independent body that is able to do this.

What we find in this motion that we have problems with is that you are suggesting you're taking the minister's powers away. You're asking for more consultations, even after the district health council has done its job, by saying we shall hold more hearings. We believe that the district health council has consulted with people. They have found out the problems that are involved with the local community, and they are bringing them forward to the minister through their district health council report, which we have said that the minister will have regard for and that the commission will have regard for as they make decisions about restructuring in Ontario.

The Chair: Ms Lankin? Obviously we don't want to move right to the vote.

Ms Lankin: I actually think we should, because I think that that answer once again shows a complete lack of understanding of what we're attempting to do in the amendment and I think that that answer meant that Ms Johns was not prepared to accept any of the elements of this amendment. If she's indicating to me that the government caucus is once again simply going to vote against an opposition amendment, if that's what it is, then I'd say, let's just move to the vote. Let's stop debating it.

The Chair: Mrs McLeod, did you have a comment on that?

Mrs McLeod: Again, we were ready to support the amendment without debate, but, Ms Johns, I have to tell you that if what you've just said suggests that the process that is intended, and your resistance to all of the amendments that are being put forward, is to suggest that the district health council report, which we do want taken into consideration, would be considered without there having been any public hearings in a community because that would be a further waste of time, then I am going to fight for a due process being recognized in this legislation if it takes us until Friday at 1 o'clock.

The Chair: Thank you, Ms McLeod. Any further discussion on the proposed amendment?

Ayes

Caplan, Cooke, Lankin, McLeod, Phillips.

Nays

Clement, Ecker, Hardeman, Johns, Maves, Sampson, Young.

The Chair: The amendment does not carry.

It's 20 after 11. We'll have our customary morning recess for 15 minutes.

The committee recessed from 1116 to 1135.

The Vice-Chair (Mr Bart Maves): Welcome back. I'm Jack Carroll. I've found the fountain of youth and turned the clock back a few years. We are now ready to move a Liberal motion, I believe from Mrs Caplan, motion 33C.

Mrs Caplan: This is simple and clear. It's short and I'm going to speak to it very briefly.

I move that subsection 6(8) of the Public Hospitals Act, as set out in section 6 of schedule F to the bill, be struck out and the following substituted:

"Powers of board

"(8) Despite the letters patent, supplementary letters patent or bylaws of a hospital, the board shall have such power to carry out a direction under this section as may be specified in the direction but such powers shall not contravene the provisions of any other act."

The reason we need this new amendment is that it does three things potentially that I want to make sure it cannot do. One, I think the amendment in Bill 26 --

Mrs Johns: On a point of order.

The Vice-Chair: Order. Excuse me, Mrs Caplan. That's not the motion that I have.

Mrs Johns: That's not the motion we have.

Mrs Caplan: It's 33C.

The Vice-Chair: That's right. Mine ends at "specified in the direction." Staff's ends there too.

Mrs Caplan: Okay. Let me re-read that. It says:

"(8) Despite any other act, letters patent, supplementary letters patent or bylaws of a hospital, the board shall have such power to carry out a direction under this section as may be specified in the direction."

I believe we had amended that to include "but such powers shall not contravene the provision of any other act," and so I'd like to add that as a complementary amendment. I'll give you the new motion.

Interjection: Let's set it down.

Mrs Caplan: No, we don't have to set it down. It's just adding those few words, unless you want to set it down.

The intent of this motion is that the minister, by direction, should not be able to force a hospital board of volunteers to override a law, in other words, to break the law.

One of the questions I'd want to ask of the parliamentary assistant, and this is just one example, I believe these are issues of natural justice so that the minister cannot give a direction that would override a law and force a board to override a law.

Just one example, and this is an example: There are some hospitals that have agreements that do not allow contracting out of lab testing procedures. Does Bill 26 allow the minister to force a hospital board or permit a hospital board to override such an agreement without due process or discussion, just by direction of the minister? Would that be permitted in Bill 26 as it stands?

Mrs Johns: This is an issue of corporate law and I'd really like to defer this to Mrs McKeogh, please.

Mrs Caplan: I understand that and I guess as a question of policy, before the lawyer answers the question, I want to know if it is the policy intention of the minister that Bill 26 allow those kinds of overrides of existing statutes. Is that the intention, including labour law, the collective agreements and that sort of thing? Is the policy intention of the minister that Bill 26 can override those kinds of agreements and potentially laws?

Mrs Johns: As I said, I'd like to have the lawyer explain it. I would say before I hear her, and it will be subject to what she says here, that my answer is no.

Mrs Caplan: I just want to be clear. The intent is that those existing agreements cannot be overridden. I'd like the answer from the lawyers.

Mr Clement: Could Elinor just read the last phrase that she added one more time, so I can write it down?

The Vice-Chair: We're having copies circulated.

Ms Carole McKeogh: The intention of this subsection 6(8), "Despite any other act, letters patent, supplementary letters patent or bylaws, the board shall be deemed to have the unrestricted power to carry out a direction under this section," is focused on the power of the board to act. The power of the board to act may be restricted by other acts, letters patent and so forth, and the specific issue that may come up is a restriction requiring special approvals for the board's actions by members of the corporation.

Although the board generally governs and manages the corporation, provisions in special acts, the Corporations Act or letters patent or bylaws may state that in respect to particular actions by the board, an approval by the members, either a unanimous approval or approval by special resolution, is required. This section is intended to make it clear that the board is not restricted in its ability to manage and govern the corporation.

Mrs Caplan: I know there's another question that Mrs McLeod wants to place, but I would like to ask some very specific questions about what Bill 26, as it now stands, might permit, and then see if this motion could be amended to deal with those issues, if in fact it does what I suspect it might be able to do.

The Vice-Chair: Excuse me, Mrs Caplan, I just want to confirm that everyone has the amended amendment which reads from the second last line, "in the direction," and then added on that is, "but such powers shall not contravene the provisions of any other act." Does everyone have that now?

Mrs McLeod: On a point of order, Mr Chairman: If I could just point out that without those last words there is no amendment because it was exactly as it was written in Bill 26, so those last words are the amendment.

The Vice-Chair: I just want to find out that everyone has that now. Thank you. Go ahead, Mrs Caplan. I'm sorry for the interruption.

Mrs Caplan: Thank you. The question that I posed, for example, Carole, does Bill 26 permit the overriding of collective agreements?

Ms McKeogh: We don't think so. We think it would have to be worded more clearly to override collective agreements. This section is aimed at the capacity and powers of the board.

Mrs Caplan: Does Bill 26 permit the minister to give the board a direction that would then override a hospital bylaw?

Ms McKeogh: Yes. The bylaw in respect of restricting the power of the board to act, to govern the corporation.

Mrs Caplan: Does it give the minister the power to direct a board to take an action that would override any existing statute?

Ms McKeogh: In so far as the statute would restrict the capacity of the board to act. As I say, the intention is not to --

Mrs Caplan: Is that a yes? The answer's yes in so far as it would restrict --

Ms McKeogh: The capacity of the board to act.

Mr Cooke: What does that mean? Just put it in plain English.

Mrs Caplan: Give us an example, Carole.

Ms McKeogh: As I say, the specific issue is restrictions on the board's capacity to act by way of requiring approval by members of the corporation, by way of special resolution or otherwise. Alternatively, the bylaws could provide that the board simply is not permitted to make certain types of decisions, that the members reserve those decisions for themselves.

Mrs Caplan: I guess I want some further clarification, if you could give us an example of the sort of thing, because the way I read this, and this is the concern that I have that you've confirmed, is that a voluntary board of governance that is liable -- under the Corporations Act they have liability as directors -- that's correct, isn't it? They are fiscally responsible. They have all the responsibilities as that board under the hospitals act.

Ms McKeogh: They do have protection from liability under the hospitals act, but yes.

Mrs Caplan: But they are a voluntary board of governors and could be directed by the minister to take an action that would override a law, or a bylaw of the hospital, or -- and it's undefined as to what the intent and purpose of this is. I'm trying to really understand, because when I read this alarm bells went off in my head because I think this threatens voluntary governance.

Why would any person want to serve as a volunteer on a hospital board if the minister could force them to override a law or a bylaw of their own hospital? I see that as the threat to voluntary governance. I also see it as the ability of the minister to micromanage. If he could force them to override a bylaw with this, he could also force them to write a bylaw, even though in another section he has taken out that explicit power. So implicitly here by overriding a bylaw, it's in effect changing the way the hospital would operate and function and be managed. Am I stretching it or is that possible?

Ms McKeogh: I don't think this section would authorize the board to write a bylaw --

Mrs Caplan: But it would override an existing bylaw.

Ms McKeogh: As I say, the section is aimed at the capacity and power of the board to manage, and if the bylaw restricted the board's power to do that by requiring approval by the members by special resolution, it would override.

Mrs Caplan: The third area of concern, which is the natural justice argument: Often those bylaws establish due process within the hospital corporations. Is that fair?

Ms McKeogh: Yes.

Mrs Caplan: So if you were overriding a bylaw on the direction of a minister, they could force a board to do away with all of the natural justice provisions of due process that are in those hospital bylaws.

Ms McKeogh: I don't think so. Again, it's a question of having the capacity and power to act. In regard to the capacity and power to act, as I say, we're concerned about restrictions by way of requirement either for members' approval or that the capacity has been taken out of their hands completely.

Mrs Caplan: I don't want to challenge, get into a thing of, "I'll get another legal opinion"; therefore, I'm concerned about your words, "I think," because what you've told me is that this gives the minister the power to force the board to override its own bylaws. We know that bylaws set out all of the due process and what I call the natural justice provisions of how they treat their employees, their doctors and others. Those are set out by hospital bylaw. So while it may not be the intent -- I'm not questioning the intent -- I'm saying in practice this section could force the board to wipe out all of those protections that they have built into the development of their bylaws.

Ms McKeogh: That's not my view, but in any event, the direction would have to state that the board is to do that, is to override the natural justice and so forth. That's not the type of direction that's contemplated here; it would be a direction to close, to amalgamate, to transfer services.

Mrs Caplan: It may not be the action that's contemplated, but I think you would agree that that action is possible, especially when you say it may not be contemplated. We know that in other sections of this act the minister has already wiped out due process within the hospital context when it came to privileges of doctors and those that were going to be impacted by possible closings, so I don't think your words give much assurance to those out there who have seen actions taken in other parts of this bill. I read this section of the bill as putting the minister above the law, not only the bylaws of the hospitals, but above the law when it comes to other actions that he can take unilaterally to do just about anything.

I'm going to yield to Mrs McLeod, who wants to place a supplementary question on this issue.

Mrs McLeod: I want to take some of the words out of it and just get down to what I as a non-lawyer take from this. This is why this kind of debate and understanding is so crucial, because here's one small clause of this immense act that conveys such incredible powers that we have no idea what may be done with them in the future.

Let me just take the words that I read. A statement of intent I don't think is sufficient, because you could tell me whether or not courts typically are able to base judgements on what was intended when the act was written, and I have not read a lot of judgements, but as a legislator one of the things that I've heard courts say is: "We can't go back and look at what you intended to do. What we have to deal with is the letter of your law." So I'm worried about the letter of the law here.

I read it as saying, "Despite any other act" -- and I'm going to take the rest of the words out so we don't confuse the issue -- "the board shall be deemed to have the unrestricted power to carry out a direction under this section." You must have in mind other acts that could intervene, and I would like to know what those acts are that can by law now, by this law allow the Minister of Health to override any other law.

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Ms McKeogh: The other acts would be, first of all, special acts that govern individual hospitals, of which there are about 25 in the province. Those special acts may contain restrictions on the power and capacity of the board to govern. The other act would be the more general act, would be the Corporations Act, which requires special approval of members for certain actions such as amending the letters patent of the hospital corporation.

Mrs McLeod: That I think clarifies the intent as you drafted the law. But now I'd like to ask you about the letter of the law as written. When it says, "Despite any other act...the board has unrestricted power to carry out a direction" of the minister, even though you didn't intend it to override the Labour Relations Act, for example, or a collective bargaining agreement, why would it not, given the way this is written?

Ms McKeogh: Because the words are "the unrestricted power to carry out a direction," in my view, the wording of the section would have to be much clearer to go beyond the question of the capacity of the board. To go to the issue of overriding collective agreements or other types of contractual agreements, for example, the wording would have to be much clearer to do that.

Mrs McLeod: But in the meantime we have words that are written that say, "Despite any other act." So I would take you to the amendment, and I do this because I think it's a reasoned amendment, and we have dropped the words "despite any other act." We've left in "despite the letters patent, supplementary letters patent or bylaws of a hospital," recognizing that this minister is determined to have some powers to do things and we're not going to win otherwise if we don't acknowledge that, but the powers he would exercise "shall not contravene the provisions of any other act." All our amendment is doing is saying, don't put the minister beyond the other laws of this province. Is that not a reasoned amendment that still preserves your intent?

Ms McKeogh: As I say, the two specific cases we're concerned about are possible restrictions on the board's ability to act. That would be in special acts governing hospital corporations, and the other one being restrictions on the board's ability to act which would be contained in the Corporations Act.

Mrs McLeod: Based on that explanation, may I then ask the parliamentary assistant if she would undertake to bring forward an amendment to their own legislation which would make clear that it is only the special acts that are related to the functioning of the hospital board that can be overridden by this clause.

Mrs Johns: We'll stand this amendment down and we'll talk about it. I'll get some information for you and I'll come back to you. I think Ms Lankin has a question about this.

Ms Lankin: To Ms McKeogh, I understand that you're answering the specific questions with respect to this section that Ms Caplan and Mrs McLeod were putting to you about whether or not such a direction could cause the board to override contracts, agreements, collective agreements or any other sort of thing.

I had raised this much earlier on in questioning, I think during the first week of hearings, I can't remember when it was. But my question had been, when you put this clause together with subsection 44(1) which says:

"If a board of a hospital determines that the hospital will cease to operate as a public hospital or the minister has directed the board of a hospital to cease to operate as a public hospital" -- that comes back to the minister's direction -- "the board may make any decision in the exercise of its powers under section 36 that the board considers necessary or advisable" -- necessary or advisable -- "in order to implement the board's determination or the minister's direction including, without restricting the generality of the foregoing," refuse applications, refuse appointments etc.

There are a couple of other sections, when you put it all together, that strike me, where the minister makes a direction and the board must carry out that direction despite bylaws, letters of patent, take any action necessary to implement. When you put it all together, it strikes me that your answer earlier that the board wouldn't, in your opinion, under that section override contracts or agreements or whatever, that in fact, when you put the whole package together, they might well have to, they may be the necessary actions, and in this case, in this section, an appointment of a physician, an agreement to appoint a physician, for example. That's a very specific example, but I think there are others when you string them all together.

So I'm wondering if, as you stand it down and you take a look at it, could you please explain to us the cumulative effect of all of these powers of directions of the minister, where the board must then take necessary action, and what in fact that could lead to in terms of overriding contracts, agreements, tenders, who knows what?

The Vice-Chair: Do we have unanimous consent to stand down this motion? Unanimous consent. That will be stood down.

We'll move to the next motion, government motion number 34. It's Ms Johns.

Interjection: Is that 34A?

The Vice-Chair: No, 34A will be dealt with subsequently.

Interjection.

The Vice-Chair: No, government motion, section 6 of the Public Hospitals Act, "Repeal" on the bottom; adds subsection (9).

Mrs Johns: I move that section 6 of the Public Hospitals Act, as set out in section 6 to schedule F of the bill, be amended by adding the following subsection:

"Repeal

"(9) This section is repealed on the fourth anniversary of the day section 6 to schedule F of the Savings and Restructuring Act, 1995 comes into force."

As we all know, as we went through committee we heard a number of people suggesting that there should be a sunset to this. The Ontario Hospital Association came to us and suggested the sunset should be between three and five years. What has happened is that we have decided on a four-year plan and that's what we've set forth as the sunsetting provision within this act.

Interjection.

Ms Lankin: My apologies. I was just signalling to the Chair that I wanted to be on the list to ask you a question, Ms Johns, with respect to this.

I have no objection to this amendment. I would agree with your characterization that we heard from many presenters, although they may not have been in favour of what was contained in the provisions you're putting forward, that they at the very least wanted to see those powers in section 6 sunsetted, the role of the commission sunsetted, which you have done in both those areas. But I put to you that all of those presenters also asked for the powers of the supervisor in section 8 to be sunsetted. You have not tabled an amendment to sunset those powers.

I am wondering if you can commit to us now, because there are only a couple of hours left that you can get amendments tabled, that you will as well sunset those extraordinary new powers of the minister to be able to appoint a supervisor without due process, without an inspector's report, all of those things that we've talked about, which was part of the request of everyone who came forward and asked you to sunset the commission and sunset the powers under section 6. They also asked for the powers under section 8 to be sunsetted.

Mrs Johns: The government won't be committing to sunsetting the supervisor's powers.

Ms Lankin: Okay. Perhaps you could tell me why?

Mrs Johns: We believe that we need the supervisors to be in the hospital, to be able to assist in different areas that we need to put supervisors into the hospital for, and we feel that this power is something that we need to have not only for four years, but further on.

Ms Lankin: Ms Johns, could I ask you, the current powers of supervisors in the existing act, how often have those powers been used in the history of the province of Ontario?

Mrs Johns: Rarely.

Ms Lankin: Right. And when I asked the minister on the first day of hearings why in fact he needed these new extraordinary powers when the existing powers to appoint a supervisor had only ever been used a couple of times, he was unable to answer that question. That's about a month ago. Perhaps now you have that answer. Why is it necessary to have these extraordinary powers beyond what was in existence?

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Mrs Johns: We believe that although the act, with respect to supervisors, is slightly broader, it's within the same general degree as it was in the previous act. We believe we need to have hospital supervisors in the future to be able to come in to situations where a hospital for any reason needs additional help in managing the system or quality of care issues, and we need to be able to have the availability of supervisors to go into situations that are necessary.

Ms Lankin: This is disturbing because the existing act actually provides for supervisors to go in when there is concern about quality of care, patient care, and that sort of thing. As you know, there is a process and the hospital has the opportunity to respond and petition etc.

In the new section there is none of the requirement for the investigator's report and the action to have the supervisor being sent in to be done as a result of an investigator's report. There's no opportunity provided as a requirement of due process to respond to the investigator's report. All of those things are the things that are required now when someone is making a challenge about quality of care. That's the balance that's in the system.

I would have thought you wanted the new extraordinary powers not in those circumstances of dealing with quality of care, but because you need to restructure hospitals and you want to do it quickly. That's the usual answer we get from you, and I would have thought that's the reason you need more extraordinary powers of supervisors. Is that correct?

Mrs Johns: We have put the extraordinary powers in as a result of the restructuring; that's why we put them into the act. I think that at this particular point we should defer to the Ministry of Health and see why they believe the powers should stay and why they weren't sunsetted.

Mr Cooke: It's a political decision.

Ms Lankin: No, this is a very political decision. Come on, Helen. With all due respect, I know you've got people on either side writing you notes. You know why they want you to stop? Because you're getting into a trap. I'm leading you into a trap, and the trap is that if you need these extraordinary powers for the purpose of restructuring, which is what you need the powers under section 6 and the commission for, and you're ready to sunset those other things after four years, then you should be willing to sunset the extraordinary powers of the appointment of supervisor after four years, because it's all a package. It's the tools you said you needed to do the restructuring and to do it within four years.

There is not one reason, I believe, that anyone in the ministry, in the departments, could give that would suggest that the ministry be able to have extraordinary powers beyond anything that's ever existed, that they've only ever used a couple of times in any circumstance, other than a restructuring where you've got a hospital board where they quit or they won't deal with it or they won't implement the directions, and you've got to step in and take over and exercise those powers. So tell me again why you won't sunset them.

Mrs Johns: Why don't we hear what they've got to say, then, if you don't believe there's an explanation?

Ms Lankin: The question is to you. You heard all the presentations about sunsetting of these powers. Why won't you answer why you believe you need those powers beyond four years? That's the question.

Interjection: You've got to defend the bill.

Mrs Johns: My answer is I believe we do need the powers after the four years. I'm deferring to the Ministry of Health.

Mr Peter Finkle: A couple of things about some of the discussions we had with the Ontario Hospital Association. They'd asked for the sunset of the commission and the section 6 minister's direction-making powers, but they had asked for the sunsetting of not the appointment of the supervisor, but aspects of how that appointment would be made, with respect to the public interest. We haven't got to the public interest sections yet.

Regarding the supervisor, there may be instances that will occur subsequent to this four-year period where the direction-making authority is not there where it may be necessary to appoint a supervisory -- in extraordinary circumstances and in the public interest to remedy some situations in hospitals. The restructuring will not -- the majority of it will be done, but without any direction powers; this makes the appointment of supervisor important to have as a last-resort remedy.

Ms Lankin: Peter, I'm sorry. You said that people wanted not the appointment of supervisors to be sunsetted, but the process by which it's done, and that's what I'm talking about. I'm not talking about repealing the old section of the act. You would still have the ability to appoint a supervisor. You send in an investigator; you get a report; the hospital responds if there's a problem.

Please don't tell me that you can envision today that in five years' time, after all the restructuring that we've gone through, there's going to be a circumstance where you can't have a little bit of due process where a hospital gets the chance to refute a report with respect to a supervisor coming in with new powers to take over the day-to-day operation of the hospital, as opposed to a situation where the board has to check with the supervisor on major directions.

All I'm suggesting is that it should go back to the old powers, which were already broad. The new extraordinary powers have always been explained by representatives of the government, staff and political representatives of the government, as being needed to accomplish this major restructuring in four years' time. You are retaining unto yourself, I'm going to say to Ms Johns, powers beyond the four-year period, and for no good reason that we can see, because they are all powers related to restructuring.

Mr Finkle: The government has tabled a motion, I believe, regarding some due process around the appointment of a supervisor in terms of giving adequate notice and ability to make representations. The disconnect from the investigators -- one can foresee instances that have come very close to occurring where it's necessary to go to a supervisor as opposed to an investigation in the first instance, and particularly where the board cannot form a quorum to make decisions.

Ms Lankin: Okay. I would respectfully submit to you that the provisions you're talking about in the amendment which you say are related to due process and rights are simply 14 days' notice. That's not a heck of a lot of due process compared to what's in the old act.

I just find your answer interesting, which was that there are circumstances that we have come perilously close to in the system already where you wanted a disconnect, as you called it, between the appointment of an investigator and a report and the appointment of a supervisor. That's interesting, because that seems to me to be the real reason, then, that you are enhancing the powers in the supervisory section and you want to keep those powers forever. It's not something I believe the government actually knows anything about or has taken a political decision on, because Mr Wilson sat here and said: "We're not going to probably ever use these powers. We've only twice maybe used the powers in the existing act in the history of the province."

So what is it that the ministry, Ms Johns, the department in terms of the hospitals branch, wants to be able to do with these extraordinary powers that they've never had to do before -- come perilously close to maybe, but always worked out through consensus and negotiation and cooperation with the volunteer boards and the CEOs of these hospitals? What is it that you politically support about that request from the department that you're prepared to defend, not sunsetting these powers, when that was the request that came to you from all of the hospitals and the hospital association representatives that we heard?

Mrs Johns: Can I just ask a question of the Chair first? We're in section 9, and the amendment is relating to section 6. Should we be having this debate at section 9, or should I continue on with this debate at this particular time?

The Vice-Chair: You mean the question is related to another amendment in a further section? Well, I believe it relates back to this --

Mrs McLeod: I move, Mr Chairman, that we move immediately to that further and consider the two jointly.

Ms Lankin: They're very interconnected.

Mrs McLeod: I don't think that what the parliamentary assistant is trying to do, Mr Chairman, is legitimate. They're trapped with a problem. They don't know how to explain it, so they want to stand it down until some time --

Mr Cooke: That's exactly what was going on.

The Vice-Chair: Thank you, Ms McLeod. Can I --

Mrs Johns: We believe we need the powers in case restructuring isn't finished. We believe that we need to be able to have the ability --

Mr Cooke: You ain't going to be restructuring in the fifth year; I can tell you that.

Interjection: Let her finish.

The Vice-Chair: We have two other people who want to speak to this amendment. Mr Cooke, you wanted to speak to this amendment?

Mr Cooke: I just want to make a comment on this. There were earlier amendments, but this gets to the most cynical part of the bill, that you got caught with people being very concerned about the extraordinary powers you were centralizing to the government both with this and on the municipal side. So you thought politically, in order to deal with that, "We're going to bring in some sunset clauses, because then we can tell everybody that we're not taking these powers forever, we're just taking them for a very short period of time to deal with a crisis and we're going to drop the powers about six months to a year before we drop the writs for the next election."

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That's what this is all about. This has nothing to do with good government policy, good public policy. It has all to do with politics, and it's cynical, it is inappropriate. I think my colleague has said that there are other amendments that should be coming in. If you really believe in sunsetting powers, there are other powers that you should be moving amendments on to sunset them. There's only a very short period of time left before amendments can be brought in. We need the help of the public in order to make sure that those amendments come in --

Interjections.

Mr Cooke: -- and I encourage the people of the province to phone this number. This is Mike Harris's --

The Vice-Chair: Mr Cooke, you realize that public demonstrations by banners are not permitted in committee or in the Legislature.

Mr Cooke: Look, I've learned how to do this from one of your colleagues.

The Vice-Chair: I'd appreciate it if you didn't.

Mr Cooke: There's nothing out of order.

Ms Lankin: Call Mike instead of --

Mr Cooke: Do I still have the floor?

The Vice-Chair: You still have the floor, but please don't conduct a public demonstration via banners.

Mr Cooke: Then let me indicate to anybody who is watching these proceedings that we're not allowed to show you the phone number, but the phone number is 416-325-1941. That's Mike Harris's office's number. There are staff on the switchboards right now. Call in. Demand that the Premier --

The Vice-Chair: Moving debate along on the motion, Mrs McLeod.

Mr Cooke: -- extend the public hearings, extend the discussion on this bill.

The Vice-Chair: Mr Cooke, I'm giving Mrs McLeod the floor to speak to this amendment.

Mr Cooke: Mr Chair, there is nothing that I am saying that is out of order. Can you tell me what is out of order? I'm talking about the need to further amend the bill. I've given out a phone number because obviously the members of the committee here -- there's nothing that is out of order. Tell me what is out of order.

The Vice-Chair: Are you ceasing to speak to the amendment?

Mr Cooke: I'm talking about the amendment and I'm talking about the need for the public to get involved because the government is not prepared to bring in further amendments to sunset further powers, and the cynical nature of this particular amendment that the government has brought forward.

I'm suggesting to people that the government is trying to pull the wool over their faces, and that in fact the only way that we can change this is if people get on the phone to 416-325-1941 and call the Premier's office and say enough is enough, that this farce has got to stop, that the government cannot continue to take these powers to themselves and centralize powers, close massive numbers of hospitals across the province with this centralized power, and exclude local communities from being part of the process.

The only way it can be stopped is with the public phoning in to the Premier's office at 416-325-1941, and we'll continue to give out this phone number because I know that people want to be involved. They've been shut out of the public discussion process, but they can remain involved, and they can do that by calling 416-325-1941, the Premier's office.

The Vice-Chair: Mr Cooke, this is becoming repetitive.

Mrs McLeod: Although I appreciate the efforts being made by Mr Cooke to provide a phone number, I think he'll probably get a recorded message saying the Premier is not responsible and has no knowledge of what's in the act; please talk to the ministers.

Mrs Ecker: That's not what he said, Mrs McLeod.

Mrs McLeod: If they call the ministers, they will find that the ministers are not prepared to speak to the act and defend the act; speak to the parliamentary assistants. And if they follow the proceedings of this committee, they'll find that the recourse of the parliamentary assistants, whenever they're asked a question that neither the politician nor the ministry can answer, is they stand it down, and as we know, with the clock ticking, we will never see what is stood down come back to the committee for debate again.

Even with that frustration, I would like to draw attention to the exchange that just took place, because I think it is significant. We are talking about an amendment proposed by the government to their own legislation which sunsets the powers given to them, as our colleagues have just pointed out.

It was a relevant question for Ms Lankin to ask: What about sunsetting the other considerable powers given to the Minister of Health, and in particular the powers of the supervisor? The answer that Ms Johns gave was to say, "Well, I want to find out why the Ministry of Health wants these powers." And you used the term "the Ministry of Health" wants these powers. The response of the Ministry of Health, the bureaucrats of the Ministry of Health, with all due respect, the non-elected members who constitute the Ministry of Health, was to say, "We need these supervisory powers to continue to be able to step in and micromanage hospitals even after the economic war measures act is no longer needed by the politicians." You're prepared to sunset your powers to step in and restructure hospitals as politicians, where you get your cuts. That's what this is supposedly all about: restructuring for the purposes of financial savings -- cuts by any other name. But once you no longer need those powers, your ministry, the bureaucrats, still want the power to be able to step in and manage hospitals on a day-to-day basis.

I want to tell you that what worries the public is exactly that, that giving these kinds of incredible powers to a minister ends up giving powers to bureaucrats who are not even elected and accountable to the electorate, who can at least, at the end of four years, say to the politician, "We don't want you having those powers any longer." They don't get to say that to the bureaucrats.

What you just said, Ms Johns, is very frightening for anybody who's trying to follow these proceedings, when we say, "Why do you need this?" and you say, "Let me find out why the Ministry of Health wants this."

Ms Johns, I have the floor and I will finish, because I'm not looking for an answer; I am simply tracking the exchange that took place.

I want to point out the fact that the supervisory powers that are needed by a Ministry of Health or a minister, where there is concern about the management of the hospital, are in the act. Ms Johns, I hope you are aware of what is currently in the act, because the only change that's here --

Mrs Johns: Only the cabinet can appoint the supervisor.

Mrs McLeod: You can appoint a supervisor. Any previous Minister of Health has been able to appoint a supervisor where there are concerns about management, but due process was indeed required. An inspector had to go in and the inspector had to make a report. You don't need economic war measures acts to go in and micromanage hospitals.

We are debating an amendment. We'll support the sunsetting of the powers on restructuring, but even as we do that, I share the concerns that other powers are not being sunsetted. I also want to make it absolutely clear that even on the issue of hospital restructuring, we don't think those powers should be given to the Minister of Health or to the ministry in the first place. We know that the damage can be done by this government in the next four years, and that's what really worries us when it comes to the restructuring of hospitals. But I can assure you we're going to add our concerns to those of our colleagues when it comes to not even sunsetting the supervisory powers after that four-year period.

Mr Clement: I speak in favour of the government motion. Forgive me, I will not accuse the opposition of hypocrisy, because that's a very strong word, but let me at least put on the record the inconsistency of the opposition's comments with respect to this particular motion. I'm glad Mrs McLeod has said in the end that she supports this, because --

Ms Lankin: I did as well.

Mr Clement: Thank you, Ms Lankin. But the way in which you supported it leads those who are viewing this to conclude that somehow this was something that was not demanded or something we didn't hear from the hearings.

Ms Lankin: Not at all. That's not what I said.

Mrs McLeod: No, that is not in fact the case. It is a point of order and a correction of the record. Mr Clement cannot rephrase what we have put in --

The Vice-Chair: Mr Clement has the floor.

Mr Clement: Okay, that's fine. I'll yield the point.

Mrs Caplan: It's inadequate.

Mr Clement: Inadequate. Thank you. The point is, from my perspective, when I recall Minister Wilson coming before the health side of the committee, he made it clear that at the very least there were going to be sunset provisions with respect to the commission. I heard from the opposition and I heard from the presenters that that wasn't good enough, that the powers had to be sunsetted as well.

Mrs McLeod: No, that they shouldn't exist. That's the point that was made.

Mr Clement: No, I think you are on record saying, "If you're going to sunset something, sunset the powers rather than just the commission." That's what I recall. I confess I do not have it exactly as to what page it is in the Hansard, but that was what I recall the opposition saying: "Don't just sunset the commission; sunset the powers."

Mrs McLeod: Mr Clement, I would like the record set straight. My quoting of it is very clear.

The Vice-Chair: Mr Clement has the floor right now.

Mr Clement: That's my recollection, Mrs McLeod.

Mrs McLeod: Mr Chair, I'm --

The Vice-Chair: I can give you the floor again.

Mrs McLeod: Yes, Mr Chair, I understand Mr Clement has the floor, but Mr Clement is using his time to state inaccurately the position that I have taken and my colleagues have taken. That is not an acceptable contribution.

Mr Clement: That's not my recollection. I guess you and I are going to have to disagree, Mrs McLeod, because my recollection is quite clear that your point -- and you tried to hang us out to dry on this --

Mrs McLeod: But you have a unique recollection of what my point is.

Mr Clement: Sometimes reasonable people disagree, Mrs McLeod.

Mrs McLeod: No, this isn't a disagreement between your view and my view; it's just a bad communication of my view.

Mr Clement: That's why we have political parties and democracy, because we don't agree all the time.

Interjections.

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The Vice-Chair: Order, please. Mr Clement has the floor.

Mr Cooke: Perhaps he should state his opinion and stop --

Mrs McLeod: Yes, don't state my views.

The Vice-Chair: Mr Clement has the floor.

Mr Clement: I'm getting a bit of flak here from the opposition and I apologize if I'm -- I don't mean to be provocative, but my recollection, and I think --

Mrs McLeod: State your own views, not mine. I'll state mine for myself.

Mr Clement: I am trying to bring some perspective to this current discussion. Let me say it this way, then. I am pleased that we have listened to the presenters, which the opposition accuse us of doing in fact quite the opposite. We are adding to our bill a clause which sunsets not only the commission itself but the powers that reside with the minister under section 6. There has been no point of order raised, so I suppose that was a kosher thing to say.

With respect to the point raised about how extraordinary these powers are, I will state for the record, as I did during the hearings, that in fact when one looks across the scope of the Dominion of Canada, these powers are not so extraordinary, not so unique. In fact, in the province of New Brunswick, which I believe has a Liberal Premier, the province dissolved every single hospital board and took in those powers to the ministry and to the executive council the running of those hospitals.

We are not suggesting that at all; in fact, quite the opposite. We see the need and the benefits of a voluntary board, but there has to be, at the end of the day, some accountability for the taxpayers' dollars, which has to be balanced with the powers of the volunteer boards. When we're in the process of restructuring, we think we can do it and the minister thinks he can do it in four years.

Mrs Caplan: You're making it harder and harder for us to support your amendment.

The Vice-Chair: Order, please.

Mr Clement: I'm sorry, I just wanted to restate what I thought was the obvious, that we heard from the presenters that there had to be restructuring in the hospital sector. This allows us to do that but at the same time recognizes that these are extraordinary powers in the sense that they should only be used sparingly and as a last resort and that after a four-year period they should be removed from the arsenal of powers that the minister has. So I support the amendment.

Mr Patten: I just wanted to underline the backdrop. Mr Clement says that we are kind of going back on our word of saying that these powers should not in fact remain, when before we said that we had some concerns about it. What I would like to say is that if you look at the overall powers of the minister, that's what we're taking issue with.

So what is happening here is we're going to support it because we're saying yes, given that you're not going to move on removing the powers of the minister overall, this is a small concession to make in acknowledging that this will have a sunset clause. But it's akin to saying, "I'll take your rights away for four years, and then I'll give them back to you." It's an insult. It's not a question of responsibilities; it's a question of democratic accountability. That's the point everybody keeps making: It's the overall powers that have been lost by the Legislature, have been lost by the systems, have been lost by access by everybody in society that is the major concern. But seeing that there's no movement on that, when small concessions like this come through, we'll say yes, we'll support it because it's better than nothing.

But the overall concern about the powers of the minister are there and I would ask the parliamentary assistant if her legal counsel has done a legal search throughout this country to see where those kinds of powers have existed. There was one reference -- interestingly enough, I'm going to be speaking to the Minister of Health from New Brunswick this afternoon. I'm going to ask him the kinds of powers that were employed there and what happened.

Mrs Johns: Was that a question?

Mr Patten: Yes.

Mrs Johns: Yes, they have done a search. We have the information here. I'd be happy to let the information come out.

The Vice-Chair: Thank you. Ms Lankin.

Mrs Johns: Can I not put it on the record? He asked me a question.

The Vice-Chair: You may table that, yes, with the clerk.

Mrs Ecker: I'd like to hear it.

The Vice-Chair: Ms Johns, would you like to --

Mrs Johns: Go ahead, Ms McKeogh.

Ms McKeogh: We reviewed the hospital legislation in the other provinces, as set out in the Canadian Health Facilities Law Guide, and the provisions that were noted were as follows -- do you want me to go through each province briefly?

In Alberta, under the Hospitals Act, the minister has a broad power to issue directions. He may, by order, determine certain powers --

Mrs McLeod: Point of order, Mr Chair.

The Vice-Chair: One moment, please. Point of order from Ms McLeod.

Mrs McLeod: If we're about to get into a debate about whether the powers granted to the Minister of Health in Ontario are unprecedented under this act, I would really want to take us back, in a very thorough way, to discussions such as the one we just had about whether or not there are clauses in anybody else's legislation that would say that despite any other act a Minister of Health may direct boards to take any direction that he gives them. It's that kind of detailed power, contained in small subclauses, that we're concerned with.

The Vice-Chair: It's really not a point of order of the proceedings. We've had a question and I believe they're just reading the answer for the question that was asked. I don't think there's anything out of order with regard to that.

Mrs McLeod: I just want to serve notice that a partial answer to a question is going to create a great deal of debate.

The Vice-Chair: This was a specific question and I believe she's reading the answer.

Mrs Ecker: We haven't had an answer yet. How do you know it's partial?

Mrs McLeod: Because if it were to be complete, we would have to deal with all the balance of the schedules of the act respecting health care, which we are not going to get to, because we're not going to get through this amendment.

Mrs Ecker: Mr Chair, we have information that committee members would like to hear.

The Vice-Chair: I believe it was a specific question and this is the specific answer, so I'm going to allow that to continue, because I don't see anything out of order. Continue, please.

Ms McKeogh: As I say, this is a review of hospital legislation in other provinces.

In Alberta the minister, by order, may direct, regulate and control any other matters which may be required by this act or the regulations.

In British Columbia, section 44 of the act provides for the appointment of a public administrator by cabinet where it's considered in the public interest to do so. The public administrator may be given the exclusive right to exercise all the powers of the corporation, the board and the members of the corporation. Unless the appointment provides otherwise, the board ceases to hold office on the appointment of a public administrator.

In Manitoba, public hospitals are licensed by the Minister of Health. Closure may be effected by licence revocation. Section 20 provides that the minister may, at any time and in the minister's absolute discretion, suspend a licence for a period of up to three months. Section 22 provides that cabinet may direct that a licence be revoked or not renewed or extend a suspension.

In Saskatchewan, subsection 33(1) of the Hospitals Standards Act provides for the appointment of a public administrator by cabinet where the minister is of the opinion that -- there are four grounds listed: continuing provision of care to patients is threatened; members of the board have resigned and are not being immediately replaced; the safety of patients is being jeopardized; the board has failed to assume responsibility for the provision of services; or under the particular circumstances of the case it is in the public interest that a public administrator be appointed to manage the affairs of the board of governors. The public administrator has the exclusive power to exercise all the powers of the board and the board ceases to hold office on the appointment of the administrator.

In Quebec, Bill 83, An Act to amend the Health and Social Services Act, was introduced on May 4, 1995, and assented to on June 21, 1995. It provides that the minister may restrict the provision of specified services to the specified institutions.

It provides that the minister may, after consultation with the regional board and after giving the permit holder the opportunity to present his views, modify the permit of a public institution to modify the mission, class, type or capacity indicated in the permit if the minister is of the opinion that the public interest warrants it.

It provides that the minister may withdraw the permit of a public institution, either at the request of a regional board or of his own initiative, if he is of the opinion that the public interest warrants it, in particular to ensure effective and efficient management of the health and social services network.

There is a process set out in the legislation involving publication of a 45-day notice of intention in the Quebec Gazette. After publication of the notice, the minister must give the institution and the board an opportunity to present their views.

The hospital must submit a plan for closing to the minister for his approval within 30 days after receipt of the minister's decision to withdraw the permit. Contents of the plan are specified.

"If the hospital neglects or refuses to submit the plan, or does not carry out the...plan, the minister shall appoint a public administrator to exercise all the powers of the board."

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In New Brunswick: "Effective April 1, 1992, the control and management of all public hospitals...was transferred to the Minister of Health....

"Effective July 1, 1992, the Public Hospitals Act was repealed and a new Hospitals Act enacted which vested control and management of all public hospitals in New Brunswick in eight regional hospital corporations.

"The first boards of trustees of the eight hospital corporations consisted of persons appointed by the minister for a term of two years."

It goes on to discuss the composition of the boards.

Newfoundland: "Section 4" -- of the Hospitals Act -- "provides that cabinet may constitute a hospital board to manage and control the operation of a scheduled hospital.

"All assets, liabilities...of an existing hospital authority are vested in the appointed hospital board.... Cabinet may constitute regional hospital boards to supervise and coordinate the work of a number of hospital authorities...."

In Nova Scotia: "Under the Nova Scotia Hospitals Act regulations, control and management of a number of hospitals was vested in special interim boards appointed under the regulation, effective September 22, 1994...."

PEI: "No applicable provisions."

The Vice-Chair: Thank you. Can we table that with the clerk and perhaps have a copy for each caucus.

Ms Lankin: I have two points. I wanted to respond to Mr Clement, but just a couple of questions to Ms McKeogh. When you were doing that review -- and that's very, very helpful; thank you -- were there no provisions in any other province for inspectors to go into hospitals and filing of reports?

Ms McKeogh: Investigators? I don't recall that there were. The model that we have in Ontario, you mean the investigator-supervisor model; the administrator models, as I recall, were in BC. For sure I know it was BC, because I have that section here. It does not have that precondition requirement.

Ms Lankin: It's interesting that here in Ontario for a lot of years we've actually had a practice of due process that our hospitals are used to working with if there has been any concern. Let's for a moment put aside hospital restructuring, because in fact that's not been the contemplated use of those sections in the past; it has been for patient care and quality of hospital administration. So there has been a process where there has been an investigation if the minister felt that was warranted. The investigation produces a report, and the hospital has an opportunity to have some input into that, review it and comment on it or whatever. Then, if in fact the situation is not resolved -- which in almost every case we can ever think of it's been resolved at that level -- then a supervisor could be put in.

Ms McKeogh: Those are the existing provisions.

Ms Lankin: Just so Mr Clement knows, the concern that I'm raising is that I think that's a pretty good system and that it should continue to exist except for the circumstances that you have all been pushing for that you need with respect to restructuring. The point that I made, Mr Clement, just so I can put, again, my own comments on the record, I certainly did not object to the amendment before, sunsetting the powers in section 6 of the Public Hospitals Act, the powers of the minister to direct a closure or merger. You will recall at the time that I did not object to the amendment you put forward which sunsetted the role and mandate of the commission.

The point that I'm making is that the package that people have asked you for, from the hospital association etc, with respect of sunsetting was: the commission, the role and mandate and the existence of the commission; the powers under section 6 of the Public Hospitals Act for the minister to be able to direct closure and amalgamation; and the powers under section 8 of the Public Hospitals Act that allow for the appointment of a supervisor without the investigative report process.

Now, they're saying, "For the period of the four years, if you think that you're going to have to have the ability to appoint a supervisor to come in and take over the operation of the hospital in order to effect your restructuring, fine, but, for the same arguments as in section 6 and under the Ministry of Health Act with respect to the commission, all of those should be sunsetted."

You went to great lengths to say you were pleased to be able to tell people that you had been listening to their requests for the sunsetting of powers and had agreed and were responding to that. What I'm pointing out to you, and all I've been trying to point out to you, is that you missed one piece of it. I asked the parliamentary assistant if she could explain why that one piece was not there, and what we got into was an explanation that it's not a political decision, it's not about the restructuring, it's something that's been thought about inside the ministry.

There are no rational grounds, based on experience, because we've barely ever used the powers that exist now with the due process, the checks and balances in it, so it's not reasonable to look at expanding those powers. There's no demonstrated need, is the point I'm making, other than in the extraordinary circumstances of restructuring, which you have acknowledged in two other sections are circumstances for which the powers you provide, the tools you provide, are going be sunsetted after four years.

That's the only point I'm making. I think it's a reasonable one, and I would ask you, over the course of the next few amendments, before we get to section 8, that you contemplate an amendment, similarly worded, which would sunset those powers at the same time and would revert to the existing powers of the minister to appoint a supervisor with due process that exists under the Public Hospitals Act.

Mrs McLeod: Mr Chairman, I will refrain from attempting to do a detailed analysis and relating the information that's been tabled to the clauses we've already debated, although it's tempting to do so because it's highly enlightening and informative. If that information can be made available to us, I do think it can be a good reference point for consideration of any other clauses, where there is information about other provinces in relationship to what continues to be unprecedented powers being given to the Minister of Health in Ontario.

However, as it is the government members who wanted it publicly read into the record rather than tabled for our future reference, I want to note a very important underlying theme; that is, that the minister of health in other provinces must at least be guided by the direction and consultation of his cabinet colleagues. That underscores the point we've been making about the very unusual and unprecedented nature of what is happening in Ontario, where in many cases the Minister of Health does not have to have reference to his cabinet.

I'd also point out to Mr Clement, who has regularly informed us about the government of New Brunswick, indeed a Liberal government, that moved in a very sweeping way to restructure its hospitals, that, as has just been pointed out, they also moved immediately to restore full governance powers to the new regional boards. They did not see the need to continue to have powers to micromanage after they had restructured. That is what this debate is about on this amendment.

The Vice-Chair: Seeing no further debate, I will put the motion. Shall the motion carry? I declare the motion carried.

We move to the next motion from Ms Johns, 34A in the guide.

Mrs Johns: I move that section 6 of the Public Hospitals Act, as set out in section 6 of schedule F to the bill, be amended by adding the following subsection:

"Matters to consider

"(10) The minister, in issuing directions under subsection (1), (2), (3) or (5), shall have regard to district health council reports for the communities to which the directions relate."

As everyone will be aware, this was one of the debates that happened yesterday between the Liberals and the NDP. We made an undertaking to look at how we could ensure that we look at, have regard to, local planning, so we have brought forward this motion as a result of the debate yesterday and the hearings we heard throughout the last two or three weeks.

Mrs Caplan: The question I have is a very simple one. The existing law permits the appointment of a supervisor 30 days after an investigator's report. The 30 days is practice in Ontario today, so why did you opt for 14 days rather than 30 days?

Ms Lankin: You're on the wrong amendment, Elinor.

Mrs Caplan: Am I on the wrong one? I apologize.

The Vice-Chair: It's okay. There's a lot of paper to deal with. We're on 34A, subsection 6(10).

Mrs Caplan: I don't think I have that motion.

Mrs McLeod: I don't either. It's not in the package we see have.

Ms Lankin: It's been circulated.

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Mrs Caplan: Oh, I understand. This is the one that was stood down that gives regard to the district health council reports? We'll support that. It's minimal, but we'll support it.

Ms Lankin: While it is minimal, I would point out that it took about 20 minutes to half an hour of debate on Ms Caplan's amendment, which was defeated, to insert the words "upon the recommendation of a district health council," and an hour and a half debate on an amendment I put forward, which has been stood down, which I think will now be brought back and defeated, which was "upon the recommendation of the commission." That's probably a couple of hours-plus of committee time to get to the point where there was an agreement to have these words "having regard to district health council reports."

While it is minimal in terms of its scope, I am delighted to see this amendment being tabled. While two hours of committee time is extraordinary, that it should have taken that to make the point and to have gotten at least a partial response to the point, I'm delighted that happened, so I will be supporting it.

The point to be underscored here, however, is that there are 111 or so other government amendments, plus probably 170 or 180 opposition amendments yet to go through, and there may be other occasions -- I'm hopeful, actually, with respect to the points that I've just been making about sunsetting supervisors -- where if we get into an opportunity of actual dialogue and start to understand each other, we could actually make some amendments to improve this legislation. But I suggest to you that it can't be done if at 1 o'clock tomorrow all the amendments are going to be deemed moved and you move through them and just vote on them with no debate.

This underscores the request that is being made for the government House leader to contemplate the possibility of one more week of clause-by-clause so that we, as legislators, have this debate and improve the legislation in the way it appears we are beginning to succeed in doing at this time.

Mrs Johns, I appreciate the amendment you have tabled and I will be supporting it.

The Vice-Chair: Further debate? Seeing no further debate, shall the motion carry?

Ayes

Caplan, Clement, Ecker, Hardeman, Johns, Lankin, McLeod, Phillips, Sampson, Tascona, Young.

The Vice-Chair: I declare the motion carried.

The next motion comes from Ms Lankin.

Ms Lankin: I move that section 6 to schedule F of the bill be amended by adding the following section to the Public Hospitals Act:

"Procedures for ceasing to operate etc

"6.1 The closure of a hospital pursuant to a direction under subsection 6(1) or the amalgamation of two or more hospitals pursuant to a direction under subsection 6(3) shall be carried out in accordance with the procedures set out in the regulations."

Just a word of explanation. There is not anything adequate in the bill. You know we have been arguing all along that we would like to see those things set out in the legislation. It doesn't even set out that there will be procedures the minister and/or his commission under him must follow with respect to the procedures of closing or amalgamating an institution. I have also indicated to members of this committee that I tabled a motion on Monday, which we've not called for debate yet, which asks for the regulations pursuant to this legislation to be published and sent to a committee so we can have some sunlight about the regulations on these procedures.

I move this motion in hope that there is an agreement that the procedures should at least be set out someplace, so that if a hospital is going to be subject to a closure it will know what procedures the ministry will be following, and that there would be, I would hope, some public debate of what those regulations would be.

But even failing my motion passing this committee, I think it would be appropriate that there is a public statement someplace, through the publishing of regulations under this act, that would set out the procedure. It falls far short of what is required and what should be the case, which is that the procedures be set out in legislation, but I know I don't have a chance of winning that point here, so I am trying again to be constructive in making this bill better.

Mrs Johns: The government believes we have set some due process forward by saying we give 30 days notice, within the section, about the closures or amalgamations of the hospital. We also believe, since we have said we will take regard for the local planning process, that hospitals will know far in advance of that, even, that this will be coming. So we believe there is due notice, there is time for hospitals to think about how they could best drive these initiatives locally, and we don't believe there needs to be any more regulations to outline what's suggested in this motion.

Mrs Caplan: I had no intention of speaking to this motion because I expected that you would accept it. It is so minimal that it really does fall short of any of the due process requirements that I had hoped you would agree to put in the legislation. This one was so slightly better than nothing at all that I really felt you'd accept it.

I have to support the motion. I can't imagine why you are not. It expands the regulatory power for the purpose of setting in regulation the process you've been telling us you're going to have in place, which we do not see in the legislation, and there's no place for you to let anyone know what that process will be. The fact that you say it, Mrs Johns, doesn't make it so. Unless it's clear in the legislation, or you make a commitment to make it clear in regulation, you're going to be a laughingstock.

Ms Lankin: Let's just vote on it. Let's not debate it.

Mrs McLeod: I won't debate. I just want to make it clear what your amendment did, Ms Lankin, as opposed to what the government has in the bill: that the minister, in closing hospitals, would have to follow his own government's regulations. That's what Ms Lankin says he should do. Your bill says the minister acts solely according to his own view of the public interest. I just want it absolutely clear that this is yet another of those areas where this Minister of Health will not have to abide even by his own cabinet's regulations. He doesn't have to go to cabinet for regulation at all. This truly is unprecedented.

The Vice-Chair: Further debate? Seeing no further debate, shall the motion carry?

Ayes

Caplan, Lankin, McLeod.

Nays

Clement, Ecker, Hardeman, Johns, Sampson, Tascona.

The Vice-Chair: I declare the motion lost.

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The next amendment would take us into another section. We have two deferred motions in section 6 that perhaps we should go back to and deal with first, the first one being page 31, a motion from Ms Lankin.

Ms Lankin: That's actually not the first one that was stood down, Mr Chair. The first one was with respect to setting out a definition in the Public Hospitals Act with respect to the restructuring commission.

The Vice-Chair: Was that not in section 3? I'd like to deal with the one in section 6, since we're in that section.

Ms Lankin: Okay, if you would like to deal with the one in section 6. That follows section 3, but if you'd like to deal with section 6 first, that's okay by me.

The Vice-Chair: Does the committee want to go back to the first deferred one?

Ms Lankin: That's okay. I have nothing further to add on this point. I think people know and heard that this is the amendment by which I was trying to get the minister to at least take a recommendation from the commission. That has been rejected in all the other amendments set out in this section that related to it, so I expect the government will defeat this as well. There you have it.

The Vice-Chair: Further debate? Just to be clear, everyone, we're on page 31, which is schedule F to the bill, subsections 6(1), (2) and (3). Is everyone on the appropriate amendment? Ms Caplan, you're all right with this?

Mrs Caplan: That's fine. We'll be supporting that.

The Vice-Chair: The government members have that and are ready to proceed? Seeing no further debate, shall the motion carry?

Ayes

Caplan, Lankin.

Nays

Clement, Ecker, Hardeman, Johns, Sampson, Tascona.

The Chair: I declare the motion lost.

Now we need to go to 33C. It was stood down at 11:55. This is Mrs Caplan's motion. Are you ready to deal with this?

Mrs Johns: We have a recommendation I would like Mrs Caplan to look at with respect to this, but I don't know if this is the time I suggest it.

Mrs Caplan: Are you tabling a motion in place of this?

Mrs Johns: I was hoping that you might table this, if you liked it. I don't know.

Mrs Caplan: Let me have a look at it. Do you want to continue to stand it down?

Mrs Johns: No.

Mrs Caplan: Well, as a courtesy. To hand it to me at this moment -- I haven't even had a chance to look at it.

Interjections.

The Vice-Chair: Excuse me, committee. We'll keep this stood down and we will go to another deferred motion, that of Ms Lankin, page 30 in the top right corner.

Ms Lankin: I had moved this amendment to section 1 of the Public Hospitals Act. It was amending the definition section by adding a definition, essentially "commission," and adding that that means the Health Services Restructuring Commission established under section 8 of the Ministry of Health Act. It was stood down because it was unclear to Mrs Johns at the time whether she might feel like supporting any of my other amendments which referred to "commission," and so far she hasn't.

Mrs Johns: According to my correspondence with the legal branch, there's no reason for us to need the definition of "commission" in section 1. I stood it down previously to wait to see what amendments we brought in to the section. It was not because I was not supporting anything. As you well know, we have listened to you and have supported one of your motions and put another one forward that you suggested. It's not that we haven't listened to anything you've said, Mrs -- Ms Lankin.

Ms Lankin: Ms Lankin will do, and the emphasis is entirely unnecessary.

I don't know what your point is, Helen. You're incredibly defensive about the fact that we've had to go for hours to force you to deal with two minor, tiny, little amendments. Let me tell you, there's lots more coming. On this one, I suspect it means the government is going to defeat it as well, and I guess that's a signal to me that any other amendment I table to this act that has the word "commission" in it will be defeated as well, but isn't that life around this table?

The Vice-Chair: Any further debate on Ms Lankin's motion? Shall the motion carry?

Ayes

Caplan, Lankin, McLeod, Phillips.

Nays

Clement, Ecker, Hardeman, Johns, Sampson, Tascona, Young.

The Vice-Chair: I declare the motion lost.

I've got an announcement to make before we recess for lunch. When we come back, we will move to Mrs Caplan's deferred --

Mrs Caplan: Mr Chairman, we've got this we have to deal with.

The Vice-Chair: Can we deal with that the first thing after lunch?

Mrs Caplan: Sure, but we're prepared to deal with it now. There won't be any debate.

The Vice-Chair: We're just moving along here. I want to read this announcement into the record, then we'll recess, and we'll deal with that one right away after the break.

Just before the morning recess, Ms Johns filed new amendments with the clerk. In total, there were five. Ms Johns said six. I believe she just indicated that she simply misspoke herself. The amendments have been distributed. They replace pages 34A, which we've dealt with, 111, 112, 115, 117, 118, 119, 147 and 175 of the binders. If any members require assistance in ordering their binders, please consult the clerk of the committee at the lunch break. We'll now recess until 2 o'clock this afternoon.

Mrs McLeod: Just one question before we break. I was hoping your announcement was a follow-up to the question I had asked yesterday of the Chair, which was to determine whether the Premier, in his statement yesterday, was directing the ministers responsible for the legislation to appear before the committee.

The Vice-Chair: I'll pass that on to the Chair.

Mrs McLeod: I would appreciate a response to that, because that was my understanding of what the Premier said publicly.

The Vice-Chair: Thank you. Recess until 2 o'clock.

The committee recessed from 1257 to 1404.

The Chair: Good afternoon and welcome back to our clause-by-clause analysis. Ms Lankin?

Ms Lankin: I just wanted to welcome you back too.

The Chair: Thank you very much. I do want to compliment Mr Maves for filling in very ably in my absence.

Mr Bart Maves (Niagara Falls): Mr Maves would like to welcome you back too.

The Chair: So nice to be wanted.

Before the break, I understand that we were dealing with 33C, a Liberal motion which Mrs Caplan had indicated that she would be filing a change to after lunch. Since she is not here, I'd suggest we stand that down until she does return. Do I have consent to do that? Okay.

I understand also that we went back to section 3 and dealt with the one amendment in section 3 that had been stood down. As I understand it, section 3 has now been completed except for voting on section 3. So I'll ask the question. Shall section 3 carry, as amended? All in favour? All opposed? Section 3 carries.

We cannot deal with finishing section 6 in Mrs Caplan's absence. We will go on to section 7. Based on my records, there are no amendments to section 7. If there are no amendments to section 7, shall section 7 carry?

Ms Lankin: Just give me a moment to flip to section 7 in the bill.

The Chair: Okay, Mrs Caplan -- or Ms Lankin.

Ms Lankin: And I welcomed you back.

The Chair: I've been away too long.

Shall section 7 carry? All those in favour? Opposed? Section 7 carries.

Section 8: The first amendment we will deal with in section 8 is from the government.

Mrs Johns: I move that subsection 9(1) of the Public Hospitals Act, as set out in section 8 of schedule F to the bill, be struck out and the following substituted:

"Hospital supervisor

"9(1) On the recommendation of the minister, the Lieutenant Governor in Council may appoint a person as a hospital supervisor where the Lieutenant Governor in Council considers it in the public interest to do so.

"Notice of appointment

"(1.1) The minister shall give the board of a hospital at least 14 days notice before recommending to the Lieutenant Governor in Council that a hospital supervisor be appointed.

"Immediate appointment

"(1.2) Subsection (1.1) does not apply if there are not enough members on the board of a hospital to form a quorum."

The Chair: Any discussion on the motion?

Mrs Johns: It's the government's opinion that we will only be appointing a supervisor as a last resort. What we would really like to do is use the voluntary members of a board to be able to implement restructuring or to be able to move forward in different areas. So it's our primary interest in using the board to be able to move forward and to recommend local initiatives and to utilize the board as much as possible.

In the case where we come into a stalemate, we may have to implement supervisors to be able to make the system move efficiently and effectively. The legal counsel for the Ministry of Health read into the record a number of places across Ontario where they have used different solutions to be able to implement restructuring and to be able to ensure quality control issues.

We talked about New Brunswick, where the government came in and took over all of the hospitals. We talked about Quebec, where the minister may appoint a person to exercise the powers of the board where an institution is not following a mandated purpose. We talked about Saskatchewan, which appoints public administrators in the public interest by cabinet and the administration has exclusive powers to exercise all of the powers of the board and the board ceases to hold office.

So that's what we're doing in this particular section. We want to make the minister accountable for the appointment of the supervisor. We wanted to make sure that the hospital was given 14 days' notice on top of the notice it would have as a result of the local district health council's planning process, and we wanted to be able to appoint a supervisor immediately if there was no voluntary board. We feel that if there's no voluntary board we'll have a quality issue, and the safety of the people of Ontario is important.

The Chair: Any further discussion on the amendment? Mrs Caplan -- Ms Lankin?

Ms Lankin: It is me you're calling for? Okay.

Mr Phillips: He hoped you didn't hear that.

Ms Lankin: I was just checking.

I will be voting against this. Let me be clear that what we have in front of us is actually an amendment to Bill 26, which of course contains a series of amendments to the existing Public Hospitals Act. This amendment is primarily put forward to provide 14 days' notice, except in the situation where there's no quorum.

I don't have any problem with the concept of 14 days' notice. That's better than no days' notice. What I have a problem with is the fundamental change that is taking place, from a process where there is currently an investigator that is appointed, an investigative report, an opportunity for the hospital to have input into that, an opportunity for the minister to receive that to determine whether or not the situation has been resolved, and then, failing that, the appointment of a supervisor, with some different powers that the supervisor has with respect to the day-to-day operating of the board, a little more narrow under the old legislation than under this legislation.

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What this does is change that whole system, for every reason. Again, Ms Johns proved my point. The reasons she put forward were the need to be able to deal with restructuring and wanting hospital boards to be able to do that on their own and to deal with the local planning reports, and only in the case where the local board didn't do it would you use the supervisor. But you see, that's not the only time when you appoint a supervisor or you contemplate it or you appoint an investigator. When you have circumstances where you're concerned about the proper management of the hospital or where you're concerned about the quality of the management or the quality of the care and the treatment, those issues are the everyday, ongoing issues that we need to have legislation to be concerned about and a process to deal with, and due process for the hospital to respond.

What we have now between subsections (7) and (8) of Bill 26 is complete discretion again in the hands of the minister and of cabinet. They may appoint an investigator, if they choose, but there's no longer a requirement to do that or for an investigator's report to be filed, nothing that says the investigator has to file a report. There's nothing that gives the hospital an opportunity to see the report, to comment on it or to influence the outcome or the recommendations of the report. There's no opportunity of due process for the hospital to respond to the report and have that taken into consideration. Those things were set out in the legislation prior to Bill 26, so here, at the whim of the minister and cabinet, they may appoint an investigator or they may not. Then, despite what the investigator does or says, they may appoint a supervisor, and a supervisor has some broader powers than were available to the supervisor under the old iteration of the Public Hospitals Act.

My concern, and this is the point I made earlier, is that as you listen to the rationale that the parliamentary assistant puts forward, which is, for the purposes of hospital restructuring, you need to be able to move in quickly and use these powers, then I think you should listen to the people who have come forward who have said, "If you're going to do that, whether it's with respect to the establishment and the role and mandate of the commission, whether it's with respect to the minister's powers under section 6 or whether it's with respect to the minister's powers to appoint a supervisor under section 8, these powers should be sunsetted after four years as they relate to hospital restructuring."

I might even have concerns about that, but what I'm suggesting to you is to be consistent in your response to the concerns that we have heard and to be consistent with your parliamentary assistant's only defence that she ever puts forward for any of these issues, and she just clearly did it again in articulating the need for this particular section, your ability to do what you want in the way you want it with respect to hospital restructuring, but sunset it in four years and return Ontario to the regime of some due process for hospitals as they are looking to deal with the ministry around disputes, around issues of quality of care, quality of management, proper management etc.

I don't think I need to go on any more than that. I think that point has been made. I have not heard any commitment from the parliamentary assistant that you will in fact sunset these provisions and return to the old provisions of the act after four years. I've only heard over the course of the morning a rationale come forward from the parliamentary assistant with respect to restructuring, and when she deferred to the ministry, a response from the ministry totally unrelated to restructuring and a desire to have these powers because they've come perilously close in the past to wanting to use something like this. I don't think that's good enough and I don't think the process has provided us with appropriate answers.

I had been hopeful from some of the discussions that I had at the beginning of the lunch break that the government members were listening, were in fact going to move a motion of sunsetting, but I have not been informed that that's the case, so I will have to vote against this.

Mr Phillips: Just briefly, because we have a motion dealing with this as well, as I've said before, I used to be chairman of a hospital. For a government that purports to have a lot of confidence in people and local autonomy and, surely, individuals whom the community has selected to be involved in its hospital, you frankly show a complete disregard for those people with unilaterally moving in, appointing a supervisor and giving the board relatively little opportunity for any input into it.

All you can do, when you see a motion like this that essentially gives the minister the power to send his boss in there to do his work -- you really don't care about the local boards and the local community and you'll do whatever you want, so it is another example in this bill of either incompetence, you don't what you're doing, or that you truly do want dictatorial powers to manage this. I see here where you'll give 14 days' notice before the czar arrives in town, but I think the local hospital boards are deserving of a little more than this treatment.

Mrs Caplan: I've placed this question before, and that is, why did you opt for 14 days as opposed to the 30 days?

Mrs Johns: The minister looked at the alternatives on how long he thought the board would need to make presentations if there was something it wanted to talk about. We also considered the quality care issue -- if there was some reason why there was a supervisor, it may mean that there was a quality issue -- and how long we wanted to let that situation slide. So it was a culmination of a number of different issues on top of the issue, of course, of expediting the restructuring process so that we could move ahead quickly to be able to deal with consolidation of services, amalgamation or closing.

Mrs Caplan: It's interesting that you mention the quality issue, because under the existing legislation, that issue is addressed with the appointment of an inspector who first has to do a report that you have a quality problem. How would you determine that you have a quality problem under this new provision which does not require an inspector's report to alert you to that? Are you suggesting perhaps that any patient could just phone and say, "I think there's a quality problem," and the minister notifies them, "In 14 days I'm sending in a supervisor," without any inspector's report?

Mrs Johns: I'm going to defer to the ministry.

Mrs Caplan: No, you said the minister had decided.

Mrs Johns: No, I'm going to defer to the ministry.

Mrs Caplan: Okay.

Mr Finkle: I guess it's the appointment, not of an inspector but of an investigator.

Mrs Caplan: An investigator.

Mr Finkle: There are still provisions in the act to appoint an investigator to investigate quality problems. There's nothing to stop that. There's just a disconnect between the need for an investigator step to precede the appointment of a supervisor.

Mrs Caplan: But it is true that this act means you don't need the investigator step.

Mr Finkle: That's right.

Mrs Caplan: And that this appointment of the supervisor that the minister now says, through the parliamentary assistant, should be able to go in on 14 days' notice to a hospital board could happen without an investigator's report?

Mr Finkle: Prior to the appointment, there would be a notice of 14 days. So there would not be an appointment.

Mrs Caplan: Prior to the appointment of a supervisor. But the notice of appointment of a supervisor could be made without an investigator's report.

Mr Finkle: That's right.

Mrs Caplan: So why then, given the fact that the existing legislation that allows you to send in an investigator, that requires an investigator's report where there are concerns about quality of patient care and/or breach of fiduciary responsibility by a board -- those are existing powers in the Public Hospitals Act. Upon the receipt of that investigator's report, the minister must give 30 days of his intention to send in a supervisor. What is wrong with that process? Outside of your restructuring, what quality concerns cannot be addressed by that process, which frankly has worked extremely well in this province? Why are you throwing all of that aside in favour of a process where you can give notice that in two weeks, 14 days, a supervisor is going to come in and wipe out the voluntary governance of that board? Outside of your restructuring process, why do you want to do it that way?

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Mrs Johns: We're setting up a process that will be the same, so we're setting up a process also for supervisors that allows for restructuring. We believe that 14 days is the appropriate time for that.

Mrs Caplan: You haven't answered my question. What's wrong with the existing process as it relates to the quality concerns that you had? You said this may be because you have quality concerns. What's wrong with the existing process that is in place? Please tell me what problems you have had with the existing Public Hospitals Act in dealing with quality concerns.

Mr Finkle: There are two routes open to look at a quality issue. Cabinet may appoint an investigator to investigate quality issues at a hospital and they will report back to the minister and cabinet and then it may be necessary to appoint a supervisor. That's the current process, but they're connected. There may be instances where you have to appoint a supervisor without the need for an investigation, such as when a board fails to achieve a quorum in making decisions; effectively, if there's been a resignation.

Mrs Caplan: We've already said that in a case where a board resigns completely we certainly understand the need to immediately appoint a supervisor. That's provided in Bill 26, so that's not what this is. My question is, what is wrong with the existing process?

Mrs Johns: I just have to say --

Mrs Caplan: Let me just clarify. The parliamentary assistant said the reason that you want to be able to send in a supervisor in 14 days to take over any hospital in this province is because you might have quality concerns that can't be addressed by the existing Public Hospitals Act. I'd like you to cite a case where the existing process hasn't worked. What's wrong with requiring the minister to send in an investigator where there's a quality concern, having that investigator share that information with the board, letting the board as it exists today either resolve that problem or the minister has the right to notify them, when he receives that investigator's report, that he is going to send in a supervisor?

Let me tell you something. I sent in investigators. I'm very familiar with the way that process works. I never had to send in a supervisor because it was resolved by working with the voluntary board that cared as much about quality of care as I did. Your suggestion that voluntary governance doesn't care about quality is an insult to those people.

Mrs Johns: I never said that.

Mrs Caplan: Well, you are. You're saying you want to be able to send a supervisor in, on 14 days' notice, to a voluntary board because you might have concerns about quality of care.

Mrs Johns: Or restructuring, or a number of different issues I mentioned.

Mrs Caplan: No, no. I'm dealing with quality. We'll talk about restructuring in a minute. I'm now dealing with your concerns strictly about quality. You made that statement, Mrs Johns. If you want to retract it, you retract it, but you have now insulted every hospital board in this province by saying that the minister should have the power to send in a supervisor on 14 days' notice without an investigator's report if he has a concern about quality. That's what you said. Do you want to retract it?

Mrs Johns: I believe that 30 days is a long time to delay action where there's a quality issue. I've said that. If my mother was in that hospital and there was a quality issue, I believe it's too long to wait.

Mrs Caplan: But you're not taking any action. You're sending in an investigator under the Public Hospitals Act who can take immediate action to solve that quality problem in cooperation with voluntary governance. For you to say --

Ms Lankin: This is a real issue.

Mrs Caplan: This is a real issue, because this is the threat to voluntary governance. This is a very serious real issue; it's not a joke. Do not make light of it, Mrs Johns.

Mrs Johns: Who's suggesting we're making light of it?

Mrs Caplan: You have said it's not your intention to threaten voluntary governance in this province. The Ontario Hospital Association and many hospitals have warned you, and it is exactly the attitude you are portraying today, that the voluntary governance doesn't care as much about quality in those hospitals as you do and as I do. Let me tell you something --

Mrs Johns: We're giving the board 14 days to take action to solve the quality issue. I think that's long enough when people's health is in danger.

Mrs Caplan: Under the existing Public Hospitals Act, action can be taken immediately upon the appointment of an investigator.

Ms Lankin: Absolutely. You are misleading people with bullshit.

Mrs Johns: There's no action that can be taken from an investigator. It's a report.

Mrs Caplan: Investigators work with those voluntary boards and take immediate action to correct quality problems. That's because those voluntary boards care as much about quality assurance as anybody else in this province.

The Chair: Excuse me, Mrs Caplan.

Mr Joseph N. Tascona (Simcoe Centre): On a point of order, Mr Chair: This is supposed to be a debate, and other members jumping in and getting very personal -- I don't think we're even debating the motion here.

Mrs Caplan: We are.

Mr Tascona: No, you're not.

Mrs Caplan: That's what we're doing.

Mr Tascona: I think it's highly uncalled for and the conduct of Ms Lankin should be withdrawn. At least an apology would be in order.

Ms Lankin: I think that I used a profanity, and for using a profanity in the presence of Mr Tascona I apologize deeply. It's still not true, what the parliamentary assistant is saying.

The Chair: Thank you, Ms Lankin.

Mrs Caplan: If it is true that you want this amendment for the purposes of restructuring, and restructuring alone, then why will you not sunset it?

Mrs Johns: We can go to an investigator if that is the process we choose to follow; we have that option. If we feel we have to go to a supervisor, we want to go in in 14 days.

Mrs Caplan: You didn't answer my question. My question was, if you want this supervisor for the purposes of restructuring only, why won't you sunset this provision?

Mrs Johns: I believe we have answered this before. The government is not prepared to sunset this section.

Mrs Caplan: Then what I'm telling you -- pay attention -- is that this provision undermines voluntary governance. Your comments today have insulted every voluntary member of a public hospital's board, because what you have said to them is that you care more about quality in their hospitals than they do. What you've said today gives credence to the concerns that the Ontario Hospital Association made.

I'll tell you something. I was going to support this motion on the basis that it was better than nothing, but in fact it's worse than nothing, because this does not relate just to restructuring. It will not be sunsetted and it will forever change the relationship with public hospitals in this province, because you will with this power, forever -- "you" being the Ministry of Health -- be able to send a supervisor in to take over any hospital in this province on 14 days' notice for any purpose, and that's fundamentally going to change the way hospitals are governed in this province.

Volunteers will not only feel insulted, but let me tell you something: They will not want to serve, not if it means that the minister can walk in and take them over without even the courtesy of any kind of process to determine that they've done anything wrong, which the investigator has to do under the existing Public Hospitals Act: It's not optional; you must send an investigator in before you send in a supervisor.

This bill says you no longer have to send in an investigator. Do you realize that? Do you realize it means you don't have to have an investigator?

Mrs Johns: I think I've already stated that I realize that.

Mrs Caplan: I can't support this.

Mrs Ecker: I do believe that there is a check within this particular motion. It talks about when it is "in the public interest to do so." One of the motions that will be coming up shortly, which has been put forward by the Liberals, I believe Mrs Caplan, talks about defining the public interest a little more carefully. I would like to ask Mrs Caplan if it would assist her in any way, if we were to adopt her motion on public interest, to define it, to put whether that provides an appropriate check. I believe there may well be circumstances when, as it says, "the quality of the management and administration" is in question where the ministry does need to act quickly. I think we all agree that the volunteers who run those boards out there are very committed to the care within those hospitals and those facilities, but we also know that there may well be a circumstance when action is necessary.

I believe this is the kind of thing that is a last resort, only if necessary, and if there's an appropriate check and balance within the system, which is something we are trying to do, it might well be more acceptable to Mrs Caplan. I would put that question to you.

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Mrs Caplan: I'd be pleased to answer that question. The motion that I put forward to define the public interest I think is going to marginally improve the minister's decision-making ability. It will mean that, as well as all of the other broad range of possible things he might consider, at least he's going to have to consider access to services, which was left out of your motion. So it's a small step, but some damage control. That's what it is. The difference between his ability to make decisions in the public interest and having some due process which will maintain the relationship that has served the province well over many decades -- let me explain what that process is and why I think the relationship that exists is important.

The government of Ontario does not run the hospitals in this province. With the exception of the psychiatric hospitals, they are run by volunteer boards of directors called hospital trustees, hospital governors, hospital boards of directors. They are primarily under the Corporations Act and they are a private, not-for-profit corporation run by volunteers. They give of their time for no pay, like my colleague Mr Phillips did, on a hospital board because they care about their community and they care about the quality of care and the good fiscal management of that hospital.

In the past, over many decades, we have had some problems, and the response from the Minister of Health has been to send in an investigator to see whether the concerns are valid and justified, and usually, Mrs Ecker, through the investigators' duties those problems have been resolved because those hospital boards care about the quality of care for the people in their community and the patients in their hospitals.

I can only think of one or two rare occurrences where supervisors have actually ever been sent in. So I would ask you if you could give me an example, in the last two decades, of where a supervisor had to go in more quickly than the Public Hospitals Act permitted, where patients were left in jeopardy because the minister couldn't act unilaterally to send in a supervisor in 14 days. Just give me one example of where you think the present act has failed to protect patients in hospitals. If you can do that, if you can give me that example, I certainly would reconsider my position.

I can tell you I was Minister of Health for three years. I'm very familiar with the history of the last two decades. I believe the existing Public Hospitals Act defines a relationship that confirms the right of voluntary governance to run those hospitals, manage them in the best interests of their community and of their patients, and I respect the role of voluntary governance.

When the Ontario Hospital Association comes before this committee and says, "We fear that the new powers of the minister are threatening voluntary governance," when they say that they see for the first time in the history of this province that the Minister of Health will have powers to micromanage hospitals, and when I hear the parliamentary assistant talk about the concern that voluntary governance doesn't share the minister's concern for quality and will not act quickly enough, that the minister must be able to send in a supervisor on 14 days' notice without any due process and without any appeal, then those principles of due process, natural justice, will lead us to a fundamentally different way of governing our hospitals in the future.

No, Mrs Ecker, I don't think that my damage control motion to improve the public interest requirements that the minister must consider will fix that problem.

The Chair: Thank you, Mrs Caplan.

Any further discussion on this particular amendment? Shall the amendment carry?

Ayes

Ecker, Hardeman, Johns, Maves, Sampson, Tascona, Young.

Nays

Caplan, Cooke, Lankin, Phillips.

The Chair: The amendment carries.

The next amendment we will deal with is Liberal amendment 36A. Mrs Caplan.

Mrs Caplan: This is to section 8 of Bill 26, which is section 9 of the Public Hospitals Act.

I move that section 9 of the Public Hospitals Act, as set out in section 8 of schedule F to the bill, be amended by adding the following subsection:

"Limitation

"(1.1) The Lieutenant Governor in Council shall not appoint a hospital supervisor under this section unless, at least 30 days before making the appointment, the minister gives the board notice of the appointment of the hospital supervisor.

"Notice

"(1.2) A notice of appointment of a hospital supervisor shall include the reasons for the appointment and shall inform the board that it is entitled to submit a notice of objection to the appointment to the minister within 10 days of receiving the notice.

"Right to object

"(1.3) Within 10 days of receiving a notice of appointment of a hospital supervisor, the board of the hospital may submit to the minister a notice of objection to the appointment of the hospital supervisor in which the board shall set out the reasons for its objection.

"Response

"(1.4) Within 10 days of receipt of a notice of objection, the minister shall give the board a written response informing the board of the Lieutenant Governor in Council's decision to either confirm the appointment of the hospital supervisor or not to proceed with the appointment and giving the reasons for the decision."

In speaking to the amendment very briefly --

The Chair: Mrs Caplan, this does deal essentially with the same issue we've just discussed at length.

Mrs Caplan: And this would solve the problem that the other amendment did not resolve.

The Chair: If I could just maybe suggest that we don't dwell on it a long time because the arguments basically are the same.

Mrs Caplan: That's right. The remarks that I made to Mrs Ecker in fact would be resolved by this motion. This puts in place due process. It requires 30 days. It requires the minister to give reasons as to why he's appointing a hospital supervisor. They might be quality reasons; they might be restructuring reasons. It requires reasons. It allows the voluntary governance of the hospital to object to a notice, and a decision of the minister would take place 30 days later. I suspect they will not accept this, even though this at least would fix the problem as I outlined it to Mrs Ecker. I'm not going to waste my voice.

The Chair: All those in favour of this amendment?

Ayes

Caplan, Cooke, Lankin, Phillips.

The Chair: All those opposed?

Nays

Clement, Ecker, Hardeman, Johns, Maves, Sampson, Tascona, Young.

The Chair: The amendment does not carry.

The next amendment we'll deal with is a Liberal amendment.

Mrs Caplan: Once again, in trying to put some limitations, I move that subsections 9(3), (4) and (5) of the Public Hospitals Act, as set out in section 8 of schedule F to the bill, be struck out and the following substituted:

"Duty of hospital supervisor

"(3) A hospital supervisor appointed for a hospital shall give advice and guidance to the board and the administrator of the hospital for the purpose of improving the quality of the management and administration of the hospital and the care and treatment of patients in the hospital.

"Duty of board and administrator

"(4) It is the duty of the board and the administrator of a hospital to receive and consider the advice and guidance of a hospital supervisor appointed for the hospital.

"Action on behalf of board, etc

"(5) Where a hospital supervisor appointed for a hospital requests in writing that the board of the hospital or the members of the corporation that owns or operates the hospital do any act that they have authority to do and, in the opinion of the hospital supervisor, they fail to do so, the hospital supervisor may do the act on behalf of the board or the members of the corporation and the act is as effective as if done by the board or the members of the corporation, as the case may be."

In speaking to this amendment, and I will be very brief, this amendment would have the powers of the supervisor returned to what they are now, namely, initially to advise the board. The board must then consider that advice. Only after this can a supervisor act as the board. The notion here is to create a condition of working together and negotiating solutions, as opposed to having supervisors walk in with the big stick of authority and effectively end voluntary governance in this province. If a supervisor can walk in and overturn board decisions and overturn their existing decision-making, you will have undermined voluntary governance in this province.

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You'll notice from this amendment, Mr Chairman and members of the government caucus, that we're not saying you shouldn't have the power to send in a supervisor. We think you should, even though it's a power that has been rarely used in this province, but if you're going to send it in, the duties and responsibilities and the due process by which those decisions are made must be clarified. That's all this amendment does.

The Chair: Any further discussion on the amendment?

Mrs Johns: Within this motion Mrs Caplan has suggested that the government is undermining volunteerism, and that is just not the case. What we're doing is we're saying that voluntary reactions from a board are what is best in any circumstance and we will abide by that. But in specific circumstances ie, a restructuring, if we start to go through the process of appointing a supervisor, asking him to send letters to the board to try -- all of those things that we're asking for in here that used to be like the old process, it will not expedite the restructuring process. So we are opposed to the motion.

Mrs Caplan: Speaking to that, to the parliamentary assistant: Let me ask you again. Are the powers of the supervisor limited only to restructuring?

Mrs Johns: No.

Mrs Caplan: Are the powers of the supervisor sunsetted along with the commission?

Mrs Johns: No.

Mrs Caplan: Then how can you possibly make the statement that you have just made when you're not prepared to limit the powers of the supervisor to restructuring? How can you make the statement that you've just made when you're not prepared to sunset the powers of the supervisor?

I don't understand how you can make the statement that you just made that says that the supervisor is for the purpose of restructuring when this is a substantial change to the existing Public Hospitals Act and will allow the minister to send in a supervisor to overturn decisions of the board on 14 days' notice if the minister at any point in time in the future unrelated to restructuring decides to do it? Would you answer that question?

Mrs Johns: As you know, we intend to use the supervisor rarely, but we do intend to have the ability to have the supervisor and we believe that in some very rare circumstances through restructuring over the next four years we will need the supervisor to be able to have the power to restructure the hospitals.

Mrs Caplan: Then why wouldn't you scope the supervisor's power and limit supervisors to be sent in only for the purpose of restructuring and why won't you limit those powers and sunset them?

Mrs Johns: I think we've been through this debate before.

Ms Lankin: It doesn't mean you've given us an answer.

Mrs Johns: It doesn't mean you've accepted my answer. There's a big difference there.

Ms Lankin: No, there's a big difference --

Mrs Caplan: Clearly, Mr Chairman, the parliamentary assistant can't answer because there is no logical answer. What they are saying is: "We want to amend the Public Hospitals Act forever. The powers will not be used simply for restructuring, but whenever we answer a question on why we're doing it, we're going to relate it to restructuring."

If you were being honest about your intent, then you would accept an amendment that scoped the powers to restructuring, and if you refuse to do that, people will know you are being dishonest.

The Chair: Any further discussion on the motion?

Ayes

Caplan, Cooke, Lankin, McLeod, Phillips.

Nays

Clement, Ecker, Hardeman, Johns, Maves, Tascona, Young.

The Chair: The amendment does not carry.

The next amendment we will deal with is also a Liberal amendment, Mrs Caplan.

Mrs Caplan: Yes. I've put in a replacement motion and I understand that the government is going to be supporting this. This is the definition of the test of public interest and this motion is an attempt at damage control, and I'll tell you exactly why, and that is that the existing Bill 26, as it stands right now, has some things that the minister must consider when he is deciding if it is in the public interest to do so.

The Chair: Excuse me a second, Ms Caplan. Could you read the amendment into the record, please?

Mrs Caplan: I will read it in, yes. Thank you.

I move that subsection 9.1(1) of the Public Hospitals Act, as set out in section 8 of the schedule F to the bill, be struck out and the following substituted:

"Public interest

"9.1(1) In making a decision in the public interest under this act, the Lieutenant Governor in Council or the minister, as the case may be, may consider any matter they regard as relevant including, without limiting the generality of the foregoing,

"(a) the quality of the management and administration of the hospital;

"(b) the proper management of the health care system in general;

"(c) the availability of financial resources for the management of the health care system and for the delivery of health care services;

"(d) the accessibility to health services in the community where the hospital is located; and

"(e) the quality of care and treatment of patients."

Where this departs significantly from what is in Bill 26 is that it ensures that the minister must consider access to health services in the community where the hospital is located. The concern that I have with Bill 26 is that the minister doesn't have to consider access. He could close a hospital, he could restructure, without having to take into consideration the ability of people in the community where that hospital is to access the services they're going to need.

This is not going to fix this bill, I want to be very clear. I have real concerns about the minister being able to act wholly when he thinks it's in the public interest, and in most cases we can't challenge his decision. It doesn't even have to be approved by cabinet. It's his decision alone. But what I'm very concerned about is that he wants to do that, or wanted to when he tabled Bill 26, and would have been able to if it had been passed before Christmas. He would have been able to consider the public interest without having to think about whether or not, if he closes a hospital, those people would have reasonable access, as required under the Canada Health Act, to services.

It is true that what he may decide is good access, the community may disagree with him, and I suspect that may happen, but at least we will know, if this amendment passes, that he will have to consider access to services as part of his public interest test. This is strictly damage control. It doesn't fix the bill. This only lists the things he must consider, but ultimately, at the end of the day, this amendment says that the minister or the cabinet "may consider any matter they regard as relevant." I do have real concerns about that and I want to be on the record as stating that. That's it.

Mrs Ecker: I speak in support of this Liberal motion, although I don't think I would characterize it quite the way Mrs Caplan has characterized it. It's interesting to note though, Mrs Caplan has talked about giving examples for what's perhaps happened in the last two decades in the hospital sector. I think if there's one thing that's been made very clear by many of the presenters who have come forward it's that the next couple of years or decade or whatever in the hospital sector are going to be very unlike what the last two decades have been like.

We're going to be faced with major restructuring. We are talking about things within health care and the hospital sector now that would have been, even five or six years ago, unthinkable to talk about in terms of the need to merge and amalgamate and do a lot of the things that many hospitals are doing. So I would submit that this is a very unusual time and a very difficult time that the health care system and the hospital sector are going to be going into. I think that means that the legislation must be prepared to react and to allow the government to cope with that.

We've seen how many other jurisdictions have brought in legislation which I think some people would consider quite draconian. We've had the lawyer, Ms McKeogh, read into the record some of the things that other provinces have had to do. They've talked about absolute discretion, in the opinion of the minister, in the public interest, and all sorts of powers that they felt they needed to do in their restructuring exercise. I would submit too that many of those province are a lot further ahead than Ontario is, and it's unfortunate that it is taking this time, but we are getting on with that job.

I think this particular amendment will assist in putting forward a definition of public interest that will help ensure that people understand the point and the objective of what the minister is doing. It will provide appropriate guidance to the government in the exercise of that power. So therefore I am quite ready to support this motion.

Mrs Caplan: I'll just make one or two very brief comments. I want to agree with Mrs Ecker that we are about to see something we have not seen in Ontario since Frank Miller tried to close hospitals. That was a decade ago. The difference is that this time it's being done because you are cutting $1.3 billion from the hospital transfer account over a very short period of time, three years. By the way, that's after your Premier promised "not one cent." Let me point that out to you.

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There were pressures for restructuring. I want you to know there were pressures for restructuring and I have been talking about restructuring since 1987. We all agree. But what has created the crisis and what is going to create the chaos and what is going to make it, I would say, almost -- I'm trying to find a word that is reasonable in its context and still parliamentary. But what is going to make it so horrible, and I think "horrible" is the right word, is that it's happening because you are cutting $1.3 billion from the hospital budgets of this province, something which is unheard of in Ontario, and you're doing it to fund a tax cut that's going to cost you $5 billion. We know that that is what is driving your vision. What's driving your vision is the need to free up dollars for a tax cut.

If you were to ask the people of this province whether they would like to see orderly restructuring of their health system and the development of a true system or whether they want to see the chaos and the fear and the unprecedented -- your words -- actions of the next few years in the name of giving them a tax cut, I think that you will hear them when they call your constituency office to tell you how they feel about that, because you are making a difficult situation worse by your cut of $1.3 billion to the hospital transfers, and you're doing that after the Premier promised stable funding, which was a flat line.

He was very clear about his commitment to hospitals. We all knew it needed to be restructured, but nobody in their right minds ever dreamt that Harris's Conservative government would force the kind of restructuring as rapidly as Mrs Johns says you're going to have to do it, and that's because you are cutting so much out of that transfer payment so fast.

Mr Young: Mr Chairman, on a point of order: Are we debating the motion?

Mrs Caplan: Yes, we are. I'm responding to exactly Mrs Ecker's statement.

The Chair: Are you finished, Mrs Caplan?

Mrs Caplan: Yes, I'm just about finished. In fact --

Mrs Ecker: Promise?

Ms Lankin: She would have been if you hadn't done that.

Mrs Caplan: That's right.

Mrs McLeod: She had actually wrapped up. Don't bait the bears.

Mrs Caplan: I'm concerned that the new members of the Conservative caucus don't understand what's happening. You have hospitals in your community. Wait till they call you. Let me tell you something, what you are about to embark on to free up dollars for your tax cut, the forced restructuring in a very few short years in this province, will not only be your legacy, but I'll tell you something, it is going to anger and frustrate everybody in this province because you are doing it with limited accountability, limited to no process, limited ability for the community to participate and you are taking away most of the natural justice provisions and rights of individuals in this province.

If you think, Mrs Ecker and members of the Conservative caucus, that that's the way to govern, if you think the people of the province want that and are willing to pay that price for a tax cut, let me tell you something: You're making a big mistake. This definition of "public interest" isn't going to fix it.

The Chair: Shall the motion put forward by Mrs Caplan carry? All those in favour? All those opposed? The motion carries unanimously.

The next amendment we will deal with is a Liberal amendment, number 36D. Mrs Caplan.

Mrs Caplan: Yes, we're ready.

Mr Phillips: There it is. I want one in my name, though.

Interjections.

Mrs Caplan: Golly, we keep trying. This one's a short one, schedule F of the bill, section 8.

I move that subsection 9.1(2) of the Public Hospitals Act, as set out in section 8 of schedule F to the bill, be amended by adding "done in good faith in the performance of a power or of an authority under either of those sections" at the end.

Very briefly, this amendment limits the protection against legal proceedings for the crown and the minister to acts done in good faith. Where I referred previously to the fact that nobody could sue the minister, he had freedom from accountability through actions in the courts, I could see where there is a real need to have that limited to acts done in good faith. At least then, people would have the right to take him to court if they think he didn't act in good faith.

I would suggest that it would be very difficult in most cases for you to prove the minister didn't act in good faith, so again, this is going to be small comfort, but it will open up the right of individuals to sue the minister if they think the decision was made where he didn't act in good faith. It's simple, it's clear, it restores some natural justice. Even though there's no due process here, it does restore the right to sue where you believe that an act was not done in good faith. I'm hoping that they'll support this.

Mrs Johns: I was wondering if we could stand this down. We want to have another look at it after that explanation, please.

The Chair: All agreed? Agreed.

The next proposed amendment is Ms Caplan's.

Mrs Caplan: Again, to schedule F of the bill:

I move that subsection 13(1) of schedule F to the bill be struck out and the following substituted --

The Chair: Excuse me.

Mrs Caplan: Is there something in between?

The Chair: No. Actually, I got a little bit behind there. That finishes us, all we can do with section 8.

There are no amendments in sections 9, 10 and 11.

Shall sections 9, 10 and 11 carry?

Mrs Caplan: The point I'd just like to make on this is, my sense of this was that amendments wouldn't fix any of this, so I'm not going to be supporting these sections, but you can call them.

The Chair: Actually, we can add 12 to that too; 9, 10, 11 and 12.

Mrs Caplan: I'm happy to debate why I'm not satisfied with them, and that's because it deals with a number of things that we tried to amend under section 8, but since we weren't successful --

Interjection: What about 12?

The Chair: The amendment is to 12.1. It's a new section being proposed. I'll ask the question.

Shall sections 9, 10, 11 and 12 carry?

Ayes

Clement, Ecker, Hardeman, Johns, Maves, Sampson, Tascona, Young.

Nays

Caplan, Cooke, Lankin, McLeod, Phillips.

The Chair: Sections 9, 10, 11 and 12 carry.

There's a new proposed section 12.1.

Mrs Caplan: I move that subsection 13(1) of schedule F to the bill be struck out and the following substituted:

"13(1) Clause 32(1)(d) of the act" --

The Chair: Mrs Caplan, I don't believe that's 36E.

Mrs Caplan: I skipped it. Okay. Oh yes, that's the big one. Right, I skipped one page. Sorry, Mr Chairman, I apologize.

Schedule F to the bill, section 12.1, section 31.1 of the Public Hospitals Act.

I move that schedule F to the bill be amended by adding the following section:

"12.1 The act is amended by adding the following section:

"Definition

"31.1 (1) In this section, `personal information' means personal information as defined in subsection 2(1) of the Freedom of Information and Protection of Privacy Act.

"No disclosure

"(2) No person shall disclose personal information obtained in the exercise of function under this act except in accordance with this section.

"Exception

"(3) Subject to subsection (4), a hospital supervisor, an inspector designated under section 18 or other person exercising functions under this act may disclose personal information obtained in the exercise of those functions,

"(a) with the consent of the individual to whom the information relates; or

"(b) where necessary for the purposes of detecting fraud under this act or for the purposes of disciplinary proceedings under an act referred to in schedule 1 to the Regulated Health Professions Act, 1991.

"Deletion of name, etc.

"(4) A person who discloses personal information under subsection (3) shall, before disclosing the information, delete the names of any individuals and any other identifying information from the information to be disclosed unless the disclosure of a name or of the identifying information is necessary for the purposes of detecting fraud under this act or for the purposes of disciplinary proceedings under an act referred to in schedule 1 to the Regulated Health Professions Act, 1991.

"Transfer of medical records

"(5) Where a direction is made under subsection 6(1), (2) or (3), the administrator of the hospital that is the subject of the direction may transfer medical records kept in his or her custody under section 14 to the administrator of another hospital or to such persons or entities as may be prescribed and subsections (3) and (4) do not apply to such a transfer."

In speaking to this, this is what the privacy commissioner recommended when the minister told him that he wanted the ability to have access to files for the purposes of fraud. The commissioner appeared before us. He has negotiated with the ministry. However, I feel that we should table what the privacy commissioner instructed the minister to do and see if they will support that or if they insist on having their own way.

Mrs Johns: I'd like to defer this question to Ella Schwartz. She's the legal counsel who has been dealing with the Information and Privacy Commissioner.

Ms Ella Schwartz: I've been asked to read this into the record. Tell me if I'm not speaking loud enough.

"Ministry staff have met with the Information and Privacy Commissioner or his staff five times since the introduction of Bill 26. There has also been continuous discussion by phone during that time. The Information and Privacy Commissioner sent the minister a letter on January 16 in which he thanked the minister and his staff for their discussions. He said that it had been extremely helpful to hear a description of the issues faced by the ministry in managing the health care system. In his appearance before this committee this past Monday morning, he repeated that view.

"None of the ministry amendments to the Ministry of Health Act or the Public Hospitals Act affect privacy in any way. The Information and Privacy Commissioner did not propose any amendments to these acts. The ministry's amendments and the IPC's amendments are all related to the collection, use and disclosure of personal information by the ministry. Public hospitals are not part of the ministry. Medical records in a public hospital are protected by regulation under the Public Hospitals Act."

Having said that, I want to reiterate the minister's commitment to the health records privacy review. In the course of our work on that review, we will be looking carefully at the protection of medical records wherever they may be. Medical records in public hospitals are an important part of our concern.

Ms Lankin: I appreciate that contribution from counsel. You reasserted the minister's commitment in terms of the review of health privacy. I had understood, actually, from the privacy commissioner that the minister had committed to a comprehensive piece of legislation with respect to health information privacy. Is that correct?

Ms Schwartz: On the record? Yes, we're committed to legislation.

Ms Lankin: Could I just get Ms Johns to repeat that, so we've got it not just from ministry counsel but from the parliamentary assistant?

Mrs Johns: Yes, that's correct, Ms Lankin.

Mrs Caplan: The only point I would make is I want to thank the counsel for recitation of some of the history, but what you've told me is that in fact there is a problem with this act without some privacy protection. We are proposing this as an interim measure until your legislation comes forward. You have other areas where you've put in Band-Aids. This is another Band-Aid, and we think it's appropriate to put it in -- it can't hurt -- until you get your legislation in place, because we have no idea how long that's going to take.

Certainly the question I would ask is, new legislation would supersede this, but would you consider putting this in, Ms Johns, as an interim protection of personal privacy of hospital records? This is interim; I recognize that. But there's nothing there now and there is a problem. The act is open, we have a chance to do a little bit while we wait for your new legislation. If you care about it, why wouldn't you just let this go in as an interim measure, a Band-Aid?

Mrs Johns: According to legal counsel, there's a whole new set of implications associated with this section, implications with respect to hospitals and their medical records, and as a result of that, we will not be supporting this at this time. We will wait to see what the commissioner would like us to put in this new legislation and we will be handling it at that time.

Mrs Caplan: The last point I'd make is that I'm disappointed that you wouldn't consider this as an interim measure, because I think if there's anything that has galvanized public opinion against what you're doing in this bill, it has been individuals' concerns about access to their records. That's been primarily resolved to the satisfaction of the commissioner as a stopgap only, the fact that you're making some changes in the Health Insurance Act but you're not making any stopgap changes in the Public Hospitals Act, where clearly there are problems.

I'm disappointed that you won't accept this as an interim measure. I had hoped that you would and I think people are now aware that there are serious problems and therefore you better bring in that new legislation expeditiously. That's all I can say.

The Chair: Mrs Ecker, followed by Mr Clement, Mr Cooke, Mrs McLeod and Mr Phillips.

Mrs Ecker: I can sympathize with Mrs Caplan in that after many, many weeks when she's been holding up the privacy commissioner as the person we should be consulting with, as the person who should be making the judgement on this, we have in fact consulted very closely with the privacy commissioner and we have an arrangement that he feels is acceptable in terms of exercising his authority of protecting the privacy and confidentiality of individuals. I find it passing strange that she now cannot accept that.

I believe legal counsel has been very clear that there are protections for confidentiality under the Public Hospitals Act, contrary to what some critics would have had us believe over the past. I think this government has given a commitment to work with the commissioner to bring in privacy legislation, something which has been promised in the past under previous administrations but, with all due respect, has not, for many reasons, been achieved, and we hope to be able to achieve that, working closely with the privacy commissioner.

I do not believe that a stopgap measure, according to what I've heard from the privacy commissioner, is required at this time. I look forward, as a member of this government, to working closely with him to bring forward legislation, and therefore I will not be supporting this motion.

Mr Clement: I just wanted to get a confirmation from the legal counsel if at all possible. Did I hear from your remarks that, in your opinion, the current Public Hospitals Act has provisions in it dealing with the protection of information that render this motion redundant or in another way not necessary?

Ms Schwartz: I'll turn that over to the counsel for the Public Hospitals Act.

Ms McKeogh: What I can confirm is that there is a regulation 965 that contains provisions in section 22 protecting the confidentiality of medical records. In so far as this motion goes beyond medical records I can't comment.

Mr Clement: That's personal information. But there is a regulation rather than a section in a piece of legislation, a regulation pursuant to that piece of legislation.

Ms McKeogh: There's a regulation under the Public Hospitals Act that deals with confidentiality of patient records.

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Mr Clement: I'm just having difficulty understanding. Since we have dealt with we think, and the privacy commissioner thinks, his concerns found elsewhere in this schedule and in other pieces of legislation that are up for review in Bill 26 and we have already in place what can be termed a stopgap in the current piece of legislation until we do have the much-heralded and necessary protection of medical records and other privacy issues legislation which we have undertaken again today to do, I'm at a loss as to why we want to include another section in another piece of legislation and overlegislate when we need not have to do that. I just don't understand.

Mr Cooke: I have one question, but I have one observation on the process of this particular piece of legislation and the concerns that were expressed right from the beginning with respect to privacy.

When Bill 26 was introduced into the House we started off by the Minister of Health saying, "These are illegitimate concerns about patient records being not properly protected and there's no reason to amend. Everything is adequately protected," then public opinion built fairly quickly, it became a political liability and the minister said, "There are going to be some amendments and we're going to take a look at that," and now we're to the point where we're going to have a whole new piece of legislation to maintain health privacy.

In the matter of about four weeks, if nothing else has come out of this process, we've got commitment from the government for a brand-new piece of legislation and an admission that there was a major, major mistake and that confidentiality of patients' records was at risk. They not only have to come in with the stopgap measures that Ms Caplan has referred to, but are going to have to come in with a totally new piece of legislation.

What I'd like to ask the PA is, there is some work that's been done in the ministry already on this, discussion documents and so forth. I'm wondering whether we could have those papers filed with the committee so that we could have a better understanding tabled with the committee, so that all committee members can take a look at that information and have a better understanding of the issues.

Mrs Johns: It's my understanding, Mr Cooke, that the documentation you may be talking about was done with previous governments and it may represent a different --

Mr Phillips: Party?

Mrs Johns: Yes, it would definitely represent a different party.

Mr Cooke: The issues would be the same, I assume.

Mrs Johns: It may not represent the way this government will proceed, but I'd be happy to share with you what is in those documents, if you'd like.

Mr Cooke: If we could have those tabled, I'm sure all of us would like to take a look at that. Then could we get an idea from you, since this has evolved over the last four weeks, what the time lines are in terms of legislation coming into the House.

Mrs Johns: Mr Wright suggested at the meeting on Monday that there would a time when there would be consultation and he suggested that he didn't know what the time line would be, so I really can't comment on that. I think he suggested that there would be consultation starting some time in the spring.

Mr Cooke: Can the ministry maybe indicate to us when they would be ready, when a draft piece of legislation would be ready?

Mrs Johns: i think they feel that consultation would have to go through before draft legislation. They don't know how long Mr Wright intends to have consultation go on at this time.

Mrs McLeod: Two questions, actually, in response to Mr Clement's query as to why we would want to propose a further amendment, why this is necessary -- because the whole issue of privacy and access to confidential medical records has been a great concern of the public and is one of the reasons I think the government has seen fit to make amendments corresponding with what the commissioner has required, because the original legislation was bad legislation in terms of its invasion of personal privacy. There are two concerns we have specifically on this section, and I would ask Ms Johns, if you would like to refer to ministry counsel, if we're accurate on this.

The first is that this section of the bill does provide what I believe is a new clause that would allow regulations to be made regarding medical records, including their use and disclosure. That's the first question and that's one of the reasons why we wanted to present a section that would simply incorporate the same principles that you've seen fit now to incorporate in other sections of the bill that require consent or access to records for the purposes of investigating fraud and allow for the deletion of the name where records are accessed.

It's the same three basic principles that you've acknowledged in your subsequent amendments. We wanted them to apply to what we believe is a new clause that is essentially leaving the door wide open to regulations regarding new disclosure. Are we accurate in understanding that there is a new clause in this section of the bill?

Ms McKeogh: I'm sorry, I'm not sure which clause you're referring to.

Mrs McLeod: I find the numbering system of the act very difficult. It's a new paragraph 32. If you wish to stand it down, we can come back to it, but I would have thought that if there was a new clause added that you would aware of it. It's page 71 of the bill, and again I just find that that's the problem with the act. There's just so much and every single clause gives us cause for concern. Page 71, 32 --

Ms McKeogh: It's reg-making abilities.

Mrs McLeod: Yes, "prescribing the purposes for which." We understand that's a new clause and that it therefore is unrestricted by any of the other limitations on disclosure that are being subject to future amendments.

Ms McKeogh: Yes, we'd better stand this down.

The Chair: This question has jumped us up several pages. Is it germane to the current amendment on the floor?

Mrs McLeod: Yes, that's the reason for the amendment. It addresses the new clause, which is what Mr Clement was asking, I believe, that is, why would we need to have a section here if the old act already provides for the --

Mr Clement: That was a question.

Mrs McLeod: It was, so I took it as a question; and again, we took the exercise of preparing amendments seriously. You can see the work that has gone into this. We believe we have a new clause that allows for access to medical records under regulation and that it deserves the same privacy protections that you have seen fit to put in amendments in other sections of the act.

Ms Schwartz: I'd just like to mention, though, that the motion that you proposed is similar to what the commissioners said on December 14. It's not similar to the outcome of the discussions we had with the commissioner. It's different from that. It's not the same as the motions we now have.

Mrs McLeod: Would you agree, however, that --

The Chair: Just on a point of interest, Mrs McLeod: We are dealing with the Public Hospitals Act.

Mrs McLeod: Right, exactly.

The Chair: The section you're talking about is up in the Independent Health Facilities Act.

Mrs McLeod: I don't believe so.

The Chair: Are they relevant? Do they bear a relationship to one another?

Mrs McLeod: In fact, Mr Chairman, I further wanted to raise the concern under this section of the act about the dealing with medical records in the event of a hospital closure, and this is particularly important and one of the particular reasons why this amendment is before the committee.

We do not have precedents for what the government leads us to believe is going to be a wholesale closure of hospitals and which, we are led to believe, is going to occur before any new privacy act can be put in place.

So the argument for protection -- just on the same basic principles that you've acknowledged have to be put into other sections of the act later on, for the Public Hospitals Act, for access to medical records, for hospital records --

Mrs Ecker: So now you don't trust the commissioner?

Mrs McLeod: Mrs Ecker, the commissioner may not have been aware that there is a new clause nor seen the necessity of dealing with what the government has indicated in committee is going to be virtually immediate closures of hospitals before his new privacy act can come in. The commissioner made it very clear that he was not satisfied simply with amendments to this act as proposed. He wants a new privacy act. You've made the point yourself that there is to be new privacy act.

Our point is that, before that new act can be prepared, let alone presented and voted on, there may well be closures of hospitals. The issue of access to medical records is of concern to us in the event of a hospital closure. Our amendment speaks to that. In terms of the existing Public Hospitals Act -- and that was my query -- our understanding is a new clause has been added through Bill 26 which does open up the possibility of additional access to records and we just want these protections provided.

Mrs Caplan: To be helpful, Mr Chairman --

The Chair: The next speaker is Mr Phillips, followed by Ms Lankin, Mrs Ecker and Mr Maves.

Interjection: Are you going to jump in to the fray?

Mr Phillips: Yes, that's why I put my name on the list actually.

You're the counsel for whom? I'm sorry.

Ms Schwartz: I'm the counsel for the Ministry of Health, one of them.

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Mr Phillips: Have I interpreted what you said properly? That is, that the freedom of information commissioner has looked at this part of Bill 26, the amendments to the Public Hospitals Act. He's gone over the fact that we are going to be giving fairly sweeping powers to either the restructuring commission or what's called a supervisor to come in and essentially take over a hospital, but he's been through all of the provisions in Bill 26 around restructuring of hospitals and he's also looked at the freedom of information and privacy protections that exist and he told you he was satisfied that there is quite adequate protection.

Ms Schwartz: I can't speak to what he's looked at. I know what he proposed before the committee on December 14, and he did not at that time propose any amendments to the Ministry of Health Act or the Public Hospitals Act. He gave the ministry further proposals and he saw all the ministry motions that the ministry has tabled and he discussed them before the committee on Monday. He has never indicated to us at any time that he wants amendments to the Ministry of Health Act or the Public Hospitals Act. I don't know how he came to that conclusion.

Mr Phillips: Let me just make sure I'm interpreting you right. Did he say he had reviewed the provisions in the Public Hospitals Act and was satisfied that they provided adequate protection for freedom of information and privacy, recognizing the changes you're making to the hospital act? Did he tell you that?

Ms Schwartz: We discussed with him the proposals that he gave us. That's what we discussed with him, and those proposals did not contain the Public Hospitals Act proposals.

Mr Phillips: I'll ask the question again, because it's either: "Well, it never came up, so he must not have a concern" or "We discussed it. He's reviewed the privacy provisions there and he's quite happy." Which of those two is it?

Ms Schwartz: We did not discuss with him the Public Hospitals Act because he never rose it.

Mr Phillips: I wonder if I might be helpful here, Mr Chair, and that's that our concern is that he and all of us have so much to do on this bill that we simply want to be assured we're interpreting you right. If he has reviewed the privacy protection and is happy, then frankly we're less concerned. But if he has focused elsewhere -- so I think it may be useful if I could just move that this section be stood down, that the ministry phone the privacy commissioner --

Mrs Ecker: No.

Mr Phillips: Well, let me finish, because you may --

Mr Clement: We know where you're going.

Mr Phillips: How do you know where I'm going?

The Chair: Let him make the suggestion and then we'll decide.

Mr Phillips: Yes. I know you're very smart. You told us how smart you were this morning. Very smart. I hope the Premier's watching, because he's very smart; he told us that this morning.

But I go slower than you do and I don't think quite as quickly as you do. It would be very helpful for us, I think, if you simply went out in the hall, phoned the privacy commissioner and said: "I'm before the committee right now. I want to be sure that I'm interpreting you right, that you are satisfied with the privacy protection in the hospitals act." Because if he is, that is one thing. Right now, I hear from you that he has not raised the concern, and I'm not sure whether he's even perhaps had an opportunity to look at this provision. That's all we're asking, and it won't slow things down. We've got lots of work. We've got enough work to keep us busy here for the rest of the day. We can simply hold that off until 4:30 or 5 o'clock. So I'd like to move that, Mr Chair.

The Chair: Do we have unanimous consent to stand down this particular proposed amendment?

Interjections: No.

Mrs Caplan: Why not?

Mr Clement: Can I speak to that?

The Chair: Yes, Mr Clement.

Interjections.

The Chair: Okay. Mr Clement's going to tell us why not.

Mr Clement: I'd be happy to. I appreciate the intent of what Mr Phillips is suggesting, but I think the issue is crystal-clear. Mr Phillips was with us Monday morning at 9 am when the privacy commissioner took some time out of his busy schedule to share with us his comments respecting Bill 26. I have a copy of his comments. You may have a copy of his comments as well.

He made it very clear that he had reviewed schedules F, G and H and provided his comments in that context. If I may be permitted to paraphrase the privacy commissioner, he was ecstatic that we had a commitment from the Minister of Health that we move ahead with the separate privacy legislation respecting medical records and other like files. He then went through an analysis based on four principles which he held dear to his function in the Legislature and stated, if I may paraphrase again, that the minister's amendments addressed his concerns and he felt further comfort from the commitment to have the legislation.

I would note at the outset of my remarks, Mr Phillips, I said that he had reviewed schedules F, G and H. We are now on schedule F. He did not raise any particular concerns about the Public Hospitals Act. So I think we have our answer.

Mr Phillips: You bring in an expert witness. I asked the expert witness what it was, because the expert witnesses had the detailed conversation.

Mrs Ecker: And she answered you.

Mr Phillips: What she said was she is not at all sure which of those --

Mrs Ecker: That's not what she said. She said this section was not discussed with the privacy commissioner.

Mr Phillips: You can ram anything through you want; just keep ramming it through. We're trying to be helpful here. The witness said, "We're not sure on that." We said, "Stand it down for half an hour and make a phone call." But if you're so determined to not want to listen to the possibility that you haven't understood this, fine. You just keep ramming it through and you people live with not only the incompetence, because that's what you're showing -- total incompetence -- but arrogance and dictatorialness. You are dictatorial.

The Chair: Any further discussion on the proposed amendment 36E?

Ms Lankin: I was on the list. What did you do? You probably recognized Ms Caplan at some point in time and got confused.

The Chair: Ms Lankin, my apologies. You are on the list.

Ms Lankin: Thank you very much. If I may ask a couple of questions to counsel on this, I understand the point that you're making, that you think he doesn't have any concerns because he didn't raise concerns on this. You said he raised all his concerns with you --

Ms Schwartz: I can't speak for him, but that's what I would assume.

Ms Lankin: Sorry?

Ms Schwartz: I can't speak for him, of course. That's what I would assume.

Ms Lankin: Right. One of the things that I've realized going through this whole process is that there's so much here that we discover things as we go along, even though we're some period of time into it. It may be the case that your assumption is right that he has no concerns, but let me ask between both counsel, because I think it involves both the privacy issues and the Public Hospitals Act: My understanding of the Public Hospitals Act in its original form -- its present form before it's amended by Bill 26 -- is that there is a section 14 which sets out that any medical records or whatever are the property of the hospital and remain in the control of the CEO or something to that effect, something like that.

Ms McKeogh: Yes. It says, "The medical record compiled in a hospital...is the property of the hospital and shall be kept in the custody of the administrator."

Ms Lankin: Okay. That section remains in the act; that's not affected by Bill 26 at all. So when this is all said and done, that's still there.

Now, under the regulation-making powers, which is section 32 of the old act and the new act, there is a whole list of things that can be prescribed in regulation. From sort of a quick look at that, I don't think there is anything in the old section 32, under the existing Public Hospitals Act, that deals with issues with respect to disclosure of information, but I may have missed that in my review of it.

Ms McKeogh: I think you're right. It's not specifically dealt with.

Ms Lankin: So the point that is being made, and irrespective of the actual amendment that's here, and the question that was being put forward to you that gives rise to the desire to have an amendment of this sort is that in Bill 26 you have some amendments to section 32, which is the section in which you can prescribe regulations. One of those amendments under 32(1) is subsection (t). Under subsection (t), there is a little subsection, sub-subsection -- whatever the technical wording is -- (iv).

If I could just try to put some language to what those numbers set out, section 32 gives the Lieutenant Governor in Council the ability to set things out in regulation. The various subclauses tell you the general area that you can set out in regulation. The key is "respecting matters that relate to or arise as a result of a direction under section 6 including, without limiting the generality of the foregoing, matters related to...."

If I can have folks stay with me here -- you've got a bit of a debate going on at the table -- that (t) relates to section 6, which if you remember is the section where the minister has the ability to order the closure, merger or amalgamation of hospitals.

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Mrs Johns: I remember it well.

Ms Lankin: You remember it well. "I remember..." There's a song like that, right? Someone should write a song.

We now have the Lieutenant Governor in Council able to write regulations -- that means the minister takes it to cabinet and gets it approved -- under clause (t) related to matters that arise from section 6, where the minister can close, merge or amalgamate hospitals. If you look at (t)(iv), you can see that one of the areas he can write regulations about is medical records, including their ownership, their custody, their use, their disclosure, their retention and their disposal.

I think I understand why that's there, because if you're going to close a hospital, what do you do with all of the information in the medical records that are there? It's a reasonable question. You've got section 14 in the act that says it's under the ownership of the hospital and under the guardianship of the CEO, any of those records, but if you close the hospital and fire the CEO, who's going to take care of the records? So you have to figure something out.

The problem that we have is that so far in the other areas that the privacy commissioner did raise concerns about, one of the things he has said consistently is that he wants to see some protections in legislation, not just in regulation. He's very uncomfortable with that approach. In some of the other acts he has set out some recommendations about what should be in, and the ministry, back and forth, went most of the way to meet his concerns -- not all of the way.

What I'm wondering is, is there anything we can do in legislation here, as opposed to leaving it all to regulation, that helps give us a bit more comfort, given how volatile an issue this has been with the public, about what's going to happen with these particular records, and that we don't just leave it to a process of someone writing regulations? I think it would be nice to have a bit more comfort in the legislation. If I may point out at 3:30 on Thursday, you have half an hour. I'm sorry; that's not meant to be facetious. This is one of the problems. We do need a bit more time.

I'd really like to see if there is something the government could agree to, because you've gone most of the way in addressing the concerns that the public had in the other acts. This issue didn't get surfaced early. It was sort of buried under the foofaraw around the other acts. Could we try and do something that would write some protections in the legislation and not just leave it to the regulations?

The Chair: Before that question gets answered, if I could just interject to remind all members about something, that the deadline set by order of the House for the filing of amendments in this committee is 4 o'clock today, by that particular clock up there. As we have --

Ms Lankin: I'm sorry, go ahead. I'd just like to raise a question in respect of that, though.

The Chair: I want to ensure that you're aware of that and that any amendments put forward after that time cannot be considered. So just a reminder.

Ms Lankin: With respect to that, you just raised that issue, and if I may, I am aware of that. I think most of us are aware of that.

I'd like you to tell me if there is any way this committee has any power, by unanimous consent, to vary that motion or the order in that motion that was passed by the Legislature, because I think we can see that we are still on schedule F. An open-letter request has gone to the government House leader to deal with the possibility of another week of clause-by-clause. While we still have a day and a bit here and we're coming across new things and we're looking at the possibility of amendments, it's barely possible to deal with this one we've got in front of us in 25 minutes, which is all the time we have left, and there may be some others that we come across.

What are you going to do if I make a very, very good, valid point that you agree with and it's five minutes after 4? So is there anything you can instruct us in terms of our options with the committee?

The Chair: No, there isn't. We are operating under the order of the House which instructs us, very specifically, how we are to conduct our business. As a committee, we have no ability to change any part of that order.

Ms Lankin: The only option this committee has, if there's anyone who thinks that I'm raising a valid point, is to forward a recommendation to the House leader that when he goes into the House on Monday, he vary the order --

Mrs McLeod: By unanimous consent.

Ms Lankin: -- by unanimous consent, yes, that he vary the order in the motion that was passed.

The Chair: The only comment I can make on that is what I just said, and that is that we do not have any power as a committee to change the order.

Mrs McLeod: But we do have the power to express our concern.

Ms Lankin: My question to you is, if the committee felt that the points I'm raising are valid and that there are some real issues here and wanted to do something, you've indicated that we can't change the order itself here. I'm asking, what could we do? And I'm asking you if we could send a recommendation to the House leader that the order in the House on Monday be varied by unanimous consent.

I recognize we can't bind the House leader. The House leader would have to make a decision on that. There's another process going on here where there's been an open-letter request for a meeting with the House leaders to deal with this very real issue, and we are hopeful it will be bolstered by a request from this committee, but it is technically possible for the House leader to come in and request that the order of business on Monday be amended by unanimous consent. That's correct, is it not?

The Chair: As I understand your question, it is almost identical, at least in intent, to the motion that was put forward this morning, which this committee dealt with and defeated. Therefore, it is not open to further consideration.

Ms Lankin: Mr Chair, if there was unanimous consent to reconsider a motion of that nature, I think it would be in order, would it not?

The Chair: With unanimous consent, the committee could reconsider it.

Ms Lankin: Because you're the Chair, I'm asking you to facilitate my request as a member to understand what are our options as a committee faced with this problem. But it's a little bit, just a touch, like pulling teeth here. Is there anything else that you can tell me in terms of the orders of what options are available to us as a committee if my concerns are shared by other members of the committee?

The Chair: I guess before I could comment on that, I would need to take a five-minute recess and discuss it. I'm not aware of any, but if we agree to a five-minute recess, then I will --

Ms Lankin: I'd appreciate it.

Mrs McLeod: Before we recess, could I just place a question that I believe is supplementary to Ms Lankin's question? That's to ask whether or not it is the government's intention -- I assume it's not, but is it the government's intention to bring forward any further amendments before the nth hour that you've just announced to the committee of late this afternoon?

Mrs Johns: What was that question? I missed that.

Interjection: Are there any more amendments?

Mrs McLeod: I'm assuming that there are no amendments.

Mrs Johns: About the issue you're talking about, we may have an amendment.

Mrs McLeod: Will that, however, be the end of any amendments which the government is tabling? Do we have all the government's amendments before us now?

Mr Phillips: I would think so.

The Chair: I have one here. Has this one been circulated, 45(c)(1)?

Mrs McLeod: I posed the question as a supplementary to Ms Lankin's because I'm assuming that if the government is continuing to bring in new amendments, which we've not had a chance to look at yet, by the end of Thursday afternoon, that the government itself is going to need some time in order to have those considered. Therefore, I think you might wish in a recess to determine how many more amendments we're going to be facing coming from the government itself before the end of the day, and whether or not that might add to the desire of the committee to express its unanimous agreement to request more time for the amendment process.

The Chair: Before the hour of 4 comes and goes, let's take our five-minute recess just so that we still at least have an option.

The committee recessed from 1538 to 1544.

The Chair: It's time to reconvene. Ms Lankin, to answer your question, basically I have to reiterate the answer I did give. As a committee, we have no ability to change the order under which we are operating. However, the committee does have the option, with unanimous consent, to readdress the issue that was considered closed this morning as a result of the defeat of Mrs McLeod's motion. That is the only option open to the committee.

Ms Lankin: Okay. Remind me again, the time limit for filing of amendments is in about 15 minutes, is that correct?

The Chair: The time limit for filing of amendments is 4 o'clock by that particular clock up there. We should understand that amendments that have already been filed can be amended beyond that point, but no new amendments can be filed.

Ms Lankin: Could you explain that to me? We were just chatting about that in the hall and we'd asked someone to come in and ask you that question. If when you're going through a section and you say, "There are no amendments, is there any debate?" if the committee as a group felt there were two words we wanted to change, because there's no amendment we couldn't change that?

The Chair: As I understand it, according to the rules, there can be no new amendments introduced after 4 o'clock this afternoon regardless of what they might deal with.

Ms Lankin: But if we're dealing with an amendment and we as a committee want to change two words in that amendment, we don't have to file a new amendment. We can do that. That seems a little strange.

The Chair: That is the information I have, but we will confirm that.

Ms Lankin: That would be helpful just procedurally. I'm interested in knowing, with the 12 and a half minutes left, what the collective knowledge of the government members is at this point with respect to the number of amendments we might see yet to be filed.

The Chair: I understand there have been some changes filed with the clerk under schedules F and M, which are being copied.

Ms Lankin: So amendments have just been tabled with the clerk to this section we're dealing with, schedule F, and schedule M, with 11 and a half minutes to go, that the members of the opposition have not seen, and we will not have an opportunity to determine whether there are subsequent amendments we would wish to file as a result of that?

The Chair: There appear to be several amendments here, some to schedule F and some to schedule M, that I understand the clerk just received. They are going to be copied now and distributed.

Mr Maves: Mr Chairman, on a point of order: As I understand it, the amendments we have before us even after 4 o'clock can be amended.

The Chair: I've already informed the committee -- excuse me. We may stand corrected on that. That was bad information I had. After 4 o'clock there can be no amendments of any description, either new amendments or changes to existing amendments.

Mr Maves: The amendments you've just received, are some of those amendments to -- for instance, I believe Mrs Caplan had an amendment they stood down and were looking at. Is that one of them?

The Chair: I'd have to look through them to see. There is a stack here. I haven't had a chance to look through them.

Mrs McLeod: An important question then, Mr Chairman: Are these brand-new amendments we're seeing at five minutes to 4?

The Chair: It would appear as though some of them are. We'll know when we get them distributed. Basically, the rules of the order were that amendments were admissible up until 4 o'clock and beyond that they weren't. When I introduced that whole --

Mr Phillips: Mr Chair?

The Chair: If we're going to debate this particular issue, I'm going to have to ask that we go back, because I interrupted Ms Lankin in the middle of an amendment in order to give this information which has led to this particular discussion.

Mr Phillips: I'm on that particular discussion, if I could, the particular discussion around the amendments being tabled. Obviously, it's quite important for us. We now have five hours of debate left. I gather there have been more amendments tabled just now, and we don't have them yet. Has the government now tabled all its amendments?

Mr Sampson: Mr Chair, there's one more that's being worked on that's the result of a debate we had not too long ago. I don't know what the clerk has officially received, but as far as I know that would effectively be the limit on the government --

The Chair: There is the possibility of one more government amendment?

Mr Sampson: As I understand it, yes.

Mr Phillips: The point I wanted to make, Mr Chair, is the when we set the time lines I think it was the government expectation that there would be minor amendments to the bill at most, and I realize we had the debate this morning. But now, as you know, whatever basis on which we set the amount of time for debate is gone, because I gather there are as many as another 10 amendments that we're getting here at 4 o'clock with five hours of debate time left to deal with the remaining -- we've still got 300 amendments and you've added 10 more. The member's shaking his head, but it is a fact. You've got another 10 amendments you are proposing for us in addition to -- I think we've now dealt with perhaps 10 or 12 of your 147 amendments.

I think even the government members would accept that the basis on which we began this exercise has changed quite dramatically, even beyond their wildest hope, I guess, but certainly beyond their wildest expectation. You cannot reopen the discussion of this morning; I accept that, Mr Chair. But we will be taking our usual 15-minute break at some time. I hope the government caucus may get together and on their own recognize that it's in your best interest to find a way for some more time for debate. The best case for that is that we just had an interesting debate around freedom of information, and as a result of that debate, the bill will be strengthened; I think we all will agree with that. All of us have spent so much energy on this thing, and if we just gave ourselves the additional time proposed this morning -- I don't want to prolong it, other than saying I hope the government members would take the time during the break to have a discussion among themselves and perhaps they may want to revisit that decision we made this morning on more debate time.

The Chair: We'll return to the amendment we were debating when I interrupted. Ms Lankin, you had the floor.

Interjections.

The Chair: Yes, we're still at number 36E, Ms Lankin, and you have the floor.

Mrs McLeod: And there has not been any further proposal from the government about this section?

The Chair: I guess that's up to the government to decide. Ms Lankin had the floor when I interrupted.

Ms Lankin: You have a number of amendments that have been filed with the clerk which are being photocopied. Could you please indicate whether any of them deal with this particular section?

The Chair: Based on what I can see here, there is nothing from the government to indicate a change in this particular area. Is there something coming?

Mrs Johns: Yes, there is.

Mr Phillips: Stop the clock.

Ms Lankin: Yes, stop the clock. It is five minutes to 4. Someone just said, "Let's adjourn for five minutes so we can get this sorted out." We can't.

Mr Clement: Four and a half minutes.

Ms Lankin: There's four and a half minutes left. Five minutes from now it will be past 4 o'clock and nothing else can be tabled.

We have been dealing with this section with respect to some concerns about the privacy of medical records in a circumstance where powers are used by the minister under section 6 of the Public Hospitals Act to close, merge or amalgamate hospitals, in terms of what happens to the medical records. It's set out here that it'll all be done in regulation. We think there should be some protection in legislation. That would be consistent with the kind of concerns that the Information and Privacy Commissioner has raised in the past.

We were told that there's an assumption that there are no concerns with this because they didn't talk about it. We've called the office of the privacy commissioner. A discussion took place with David Goodis of Mr Wright's office, who says about this -- surprise -- that the subject of this section, as it applies to closures of hospitals, never came up. They haven't discussed it.

We need the cooperation of the government now. Surely you would like to be able to fix this, if we can. We have three and a half minutes left. We can't get an amendment tabled in time to deal with this issue. We've only got reference from Mr Goodis that they haven't had the discussion. We won't be able to check it with the privacy commissioner. Even if it gets tabled, it can't be amended after 4 o'clock. We've got an issue in front of us and we don't know if it deals with the concerns or not.

Mr Chair, I'm going to give this back to Ms Caplan, because it's her amendment. We need the government to cooperate with us and make this recommendation to the House leader to vary the order for Monday to give us just a bit more time to deal with these amendments in a rational way that tries to get the best legislation out of this process, as bizarre and botched as it's been from the beginning; at least try to get amendments dealt with in an orderly way and let us have the debate, because every time we do, we find something new in this act that we didn't know before.

The Chair: This is the now the end of the government amendments?

Mr Clement: Yes.

The Chair: Okay. There is one here that makes reference to the section we're talking about. While we're making copies of them -- obviously this is all that's coming forward --

Ms Lankin: Mr Chair, what time is it?

The Chair: It's 4 o'clock.

Ms Lankin: When was that filed?

The Chair: Four o'clock.

Ms Lankin: When was it written?

The Chair: I have no idea. Anyway, we'll take our 15-minute recess so we can get copies of these made and have them distributed.

The committee recessed from 1557 to 1616.

The Chair: Just a very brief announcement: In order to facilitate the motions we've just received, the clerk's office advises me it needs another 15-minute recess. We will recess for another 15 minutes.

The committee recessed from 1616 to 1627.

The Chair: Welcome back. Just a couple of housekeeping things: In addition to the amendments that you have just received, you can remove from your binders pages 47 --

Mrs Caplan: Just a second.

The Chair: Maybe if you write these down -- 47, 51, 52, 66, 259, 261, 287 and 288. Those have either been withdrawn or replaced, so you can remove those from your binder, and you've been passed out the last group of amendments.

When I interrupted Ms Lankin, we were in the process of discussing amendment 36E. Are we prepared to get back to that or is there some other order of business to deal with first?

Mrs Caplan: Since this is my amendment and I had wanted to speak before 4 o'clock, I'm wondering if you'll recognize me, because I understand that the government is moving an amendment to this amendment or in fact actually putting forward an amendment. I'm willing to withdraw this amendment, since they're obviously not going to support it, if I have some assurance that they are going to table an amendment, or have tabled -- and I think it's 36D. So it has been tabled, it's a government motion. It doesn't amend my --

The Chair: Ms Lankin, were you finished when I interrupted you a long time ago?

Ms Lankin: When you interrupted me, I wasn't finished. I would like an opportunity to speak to this issue. If it facilitates the question, if the government intends to move a new amendment with respect to this issue, I would be pleased to hold my comments until that is before us properly and then speak to the issue in the context of that amendment.

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The Chair: I want to just ask a question, Mrs Caplan, before I get back to you. The amendment the government is proposing to deal with this particular issue -- can somebody tell me what number it is?

Mrs Caplan: It's 36Di.

The Chair: I must make the government aware of the fact that for two reasons this particular amendment is out of order -- I think we can deal with it -- the first one being that it deals with a section we have already passed, section 11.1, adding a section.

Mrs Caplan: Couldn't we reopen and have unanimous consent?

The Chair: The second one being that it opens up a section of the act, section 14 of the Public Hospitals Act, which has not been referred to previously. For both those reasons, this particular motion is out of order. With unanimous consent of the committee we could overrule both those. I just wanted to make you aware of that before Mrs Caplan makes a decision about what the disposition of her amendment will be.

Mrs Caplan: I will only withdraw my amendment if there's going to be unanimous consent to deal with the government's motion because, frankly, at this point in time, only my motion that is before the committee, which I've heard is unacceptable to the government, will protect in legislation patient health records that are in hospitals that could be closed under the provisions of Bill 26. Unless there's going to be unanimous consent, I'm prepared to debate my motion till the cows come home to make sure that we at least let people know that their records are at risk because there's nothing in this legislation. If there's going to be unanimous consent, I will withdraw our amendment.

The Chair: We can't deal with two amendments at once.

Mr Clement: Why doesn't she stand it down.

The Chair: The disposition of this 36E would be to stand it down?

Mrs Caplan: Let me stand it down until we see the disposition of the government's --

The Chair: All in favour of that? Any problem with that? Okay. Having stood down 36E, we will then deal with 36Di which has been proposed by the government. The first issue we need to deal with are the two reasons why it is out of order. We need unanimous consent on both issues.

Ms Lankin: I have a sense that the government caucus is going to provide unanimous consent for this and the Liberal caucus is. I just wanted to say this is the first time I've felt like I had any power at all in these proceedings.

The Chair: And I'm sure, Ms Lankin, that you will not abuse that.

Ms Lankin: I agree to unanimous consent.

The Chair: So we have unanimous consent on both --

Mr Cooke: Come on, Frances doesn't speak for me.

Mr Clement: At least not yet any way.

The Chair: Do we have unanimous consent to rule the government motion 36Di in order? Agreed. Mr Clement, do you want to read it into the record, please.

Mr Clement: Should it be the parliamentary assistant?

The Chair: I'm sorry. Mrs Johns.

Mrs Johns: That's okay. It's a long day.

I move that schedule F to the bill be amended by adding the following section:

"11.1 Section 14 of the act is amended by adding the following subsection:

"Transfer of medical records

"(2) Where a direction is made under subsection 6(1), the administrator of the hospital that is the subject of the direction may transfer medical records kept in his or her custody under section 14 to the administrator of another hospital or to such persons or entities as may be prescribed in a manner that will protect the privacy of the records."

The Chair: Is there any discussion on the motion?

Mrs Caplan: I think there a few things that people should know, and that is that from this point forward there will be no opportunity as we examine Bill 26 -- if we find an error, an inadvertent mistake or in fact a policy that could be fixed or some damage control that could be done, it is now impossible to table any further amendments and changes to this legislation. That's why I'm hoping the House leaders will reconsider that, because if we had one more week to consider this legislation, we could find some serious errors and correct them and then be part of making better law.

The Chair: I don't think that's too relevant to this particular motion.

Mrs Caplan: It is relevant because the motion that's been put forward by the government at one minute to 4 and required unanimous consent of this committee is in fact a serious omission, contrary to what Miss Ecker said on Hansard in this committee and contrary to what Mr Clement said. In fact, I'm going to say "perhaps inadvertently," but he certainly did mislead this committee; both of them did.

Let me tell you something. They wouldn't stand down the section so we could check with the commissioner of privacy's office to ask him the questions to make sure we were making good law. The government refused to allow that to happen. They accused us of in some way trying to raise a concern that wasn't legitimate and said that the commissioner had looked at all of this and he was satisfied and why wouldn't we take his assurance. That's what Miss Ecker said and that's what Mr Clement said.

I spoke to the commission office; I spoke to Sarah Jones. You know what they said? They said that in fact they had not discussed any of this with the ministry. And do you know why not? Because the privacy commissioner and the freedom of information and protection of personal privacy legislation does not apply to the Public Hospitals Act, it does not apply to any of the information that they have, and therefore, because of the grave concerns they had about the considerations as they affected their jurisdiction, that was where they put their energies in making suggestions to the government.

The fact that I described our amendment as a Band-Aid, as a protection of personal privacy in the unique situation where a hospital is closed and records have to be transferred, was pooh-poohed by both Miss Ecker and Mr Clement as being, you know, I shouldn't be concerned about it. They did exactly what Jim Wilson did when he stood in the House and he said: "Nobody has to worry, because their records are private. Everything is covered by the freedom of information and protection of personal privacy legislation. Well, let me tell you something, Janet, and let me tell you something, Tony: Jim Wilson was wrong and you were both wrong. You misled the committee.

Further, this amendment which required unanimous consent from this committee in order for it to be tabled is a Band-Aid but it is a necessary Band-Aid because without this amendment there is nothing in legislation that protects health records when a hospital is closed and those records are transported to some other health facility, hospital, individual. Without this amendment, people would be very, very worried and they would be very concerned because the privacy commissioner has no authority or responsibility to protect them. That's the reason he reported and his staff has reported. That was the reason they focused on the areas over which they had jurisdiction. I hope that both Miss Ecker and Mr Clement will correct the record and apologize to the people watching these proceedings for misleading them and suggesting that they had nothing to worry about.

I am pleased that the government finally acted at one minute to 4 to address the concerns that we legitimately raise, because you know, Mr Chairman, I've had the feeling as I've sat here at the committee, as I've been here through clause-by-clause and at the hearings, that the attitude of the government members was that in some way we were playing games. Well, let me tell you something. I was elected to this Legislature to make good laws. I am a legislator, I am a lawmaker. I'm not a lawyer. I'm not a lawyer, like Mr Clement. But I'll tell you something, and I said it to him privately: It's my own view that anybody who is a lawyer who actively condones and participates in bad lawmaking should be subject to disbarment by the law society. You would certainly qualify, Mr Clement, because you are participating in bad lawmaking, as evidenced by the way this last amendment has had to be tabled.

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Laughter.

Mrs Caplan: Let me tell you something. You may laugh and you may think this is a big joke, but the way that this Bill 26 was put together, the way that it was brought into the House, the fact that we have had 160 government amendments, and the reality that this amendment that is before us was brought at one minute to 4, that it deals with a very serious issue of confidentiality of patient records when hospitals are closed and those records are being transferred, and the fact that we can no longer pose any amendments to this committee and to the House, that that's over, done and finished, we can't try to improve this bill beyond what's already before the committee, suggests to me that you are not interested in good lawmaking. And that, I have to say, Mr Chairman, makes me very sad.

I've been frustrated sitting at these hearings. We've listened to people. Many of the concerns have not been addressed in the legislation, and I guess I'm resigned to the fact that, unless the government House leader is willing to reconsider and allow some additional time, as we proposed this morning, Bill 26 will go from being a bad bill to being bad law, which will result in bad policy. I regret that, and I think the people of this province will find out about what happens when you have a bad piece of legislation that becomes law.

Ms Lankin: You know, if it wasn't so serious an issue that we're actually dealing with in this amendment, this whole thing would be almost laughable.

Mrs Caplan: Totally incompetent.

Ms Lankin: The spectacle of a government that is supposedly in control of its legislative agenda scrambling the way in which we have seen the government members of this committee scramble, with all due respect, the incompetence of it, has been quite amazing.

I want to say on the record very seriously that over the course of the last couple of days I know in terms of questioning that I've presented a fairly difficult challenge at times to Mrs Johns, and I regret that, but I regret more the fact that the minister has placed her in this position of having to carry a bill she did not have responsibility for the drafting of or decisions with respect to what was going in, and that he has consistently refused to show his face before this committee during clause-by-clause to deal with these serious matters. I think there is a real travesty in that, and on the record I give both my condolences and apologies to Ms Johns for how things have unfolded over the last few days. To me, the blame is squarely laid at the feet of Jim Wilson.

The process of watching the government, asking the question, "What amendments are coming?" -- I asked yesterday afternoon. Didn't know. I asked this morning what they were dealing with. It was up in the air in terms of what the topics were, how many there were. None of the government committee members know.

I mean, I'd like to know who's making the decisions. At one point in time, when the first set of amendments was tabled during the last couple of days of our travel on the road, I thought the minister was the person in control and making the decisions, and I couldn't believe some of the mistakes that I saw, and the one in particular that I drew to the committee's attention, which has resulted in a further amendment that just got tabled today. But I found out in fact that the minister was off on holidays and not dealing with it at all. So I don't know who's taking care of the shop here.

Mr Cooke: David Lindsay? I don't know.

Ms Lankin: He's back. Maybe he's the one who's saying, "No, we won't deal with your concerns around the issues of supervisor's powers and the sunsetting of that." Maybe it was him who made that call, because I know a whole lot of the committee members appeared, at least, to be quite sympathetic to the point -- the good point -- I was making.

But we've got people scrambling to get another 10 or so amendments filed, and they were filed with the clerk at 10 minutes to 4, 10 minutes before the deadline when no more amendments could be filed, and not one of those amendments was shared with any of us in the opposition. There was no opportunity for us to provide you with any comment or a concern or constructive criticism. It's there, and you know what? Now that it's past 4 o'clock, if there's a problem with any one of those, we don't have a way, as a committee, to deal with it. We can't amend the amendments. The Chair has ruled and told us that what you see is what you get; that's all that's left now.

I sure hope you got every word right. There's a great possibility that you didn't, because the amendment, unlike Ms Caplan said, one minute to 4, it was actually -- I checked with the Chair; I got the timing -- it was 4 o'clock right on the dot that it was filed, and lo and behold, it was an amendment to a section of the act that (1) we had already passed and (2) had never been opened by Bill 26. Under the rules of order, you can't move an amendment to a section you didn't open under the bill, because this is only amendments to the bill. Amazing.

I understand how that happened, because really hardworking, well-intentioned people were scrambling trying to meet the concerns that have been raised and working with leg counsel and in the five minutes before 4 o'clock were trying to produce it. So I understand how that happened. But the fault for that rests with the government, the political leadership of the government in terms of the management of this bill. From beginning to end, it has been a shambles. And, as I said, if it wasn't so serious in terms of the issues we're dealing with, it would be almost laughable.

The content of this particular amendment: You were attempting to address what I think were legitimate concerns that were being raised by the opposition members, and I think you thought they were legitimate too, because you did attempt to do this and to get an amendment before us, and that I appreciate. The concerns were raised about a provision in the Public Hospitals Act which had not been reviewed during the discussions between the ministry and the privacy commissioner, and the reason it hadn't been reviewed is because the Public Hospitals Act does not come under the purview of the privacy commissioner.

You might shrug it off and say, "Well, then, so what's your problem?" Well, the problem was that the government was introducing a new power unto themselves to disclose information in medical records that's currently under the ownership and control of hospitals. The act sets out that medical records in hospitals are owned by the hospital and under the control of the CEO of the hospital. If you'd left well enough alone, that would have remained in that case, but we know that you've given yourself -- the minister -- the unilateral power to direct the closure, amalgamation or merger of hospitals, and so where you close a hospital, something has to happen to those records, and so you write yourself, instead of in the legislation originally, the ability by regulation to set out terms on a whole range of things that happen with that set of medical documents, including the disclosure.

Interestingly enough, under the sections of the bill that come under the purview of the privacy commissioner -- and just for everyone's edification, that's where the ministry, the government itself, holds the information, like under the Health Insurance Act, and that's where the majority of the concerns have been raised -- there the privacy commissioner very clearly told you his concerns about what you were doing around disclosure.

You went some way to address those concerns. You tightened it up a little bit, talked about names and that sort of stuff, but said you could still disclose it. In legislation you say "for the purposes of the act," so that's one tightening up which isn't here in this act, and secondly, "for other reasons as prescribed," but you've agreed that you will consult with the privacy commissioner and show him a draft of those regulations first and respond to his concerns. That's a commitment, an undertaking that has been given with respect to those sections.

So here we are wondering how this didn't get dealt with. Well, I spoke directly to Mr Goodis at the commission. He said that he'd never seen that section. I read it out to him during the 15-minute break. I read it to him, and he agreed he'd never seen it, and he agreed that there would be potential issues around disclosure if that was an act that was under the privacy commissioner but they're not dealing with it because it's not their act. They have to have concerns about the Ministry of Health Act.

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However, I would like to put to you that with the amendment you put forward here today, while it is a small step forward because it makes reference to the CEO of the hospital, when transferring records under any of the directions given under section 6 by the minister, having to do it in a way, in a manner that will protect privacy of the records, you are still keeping the ability to write the regulations that will direct that hospital CEO with respect to matters such as disclosure and what that means in terms of the manner in which that person will protect the privacy of records.

On one hand, you've given an obligation, you've placed an obligation on the CEO of the hospital -- for which we're glad and that's good -- but you've also given yourself -- the minister -- the ability to write a regulation which could run counter to that. Then the CEO's in a really difficult position, because what do they do? In many other places you've made it very clear that the directions of the minister, particularly when they relate to powers being exercised under section 6, must be followed by the CEO.

I'm going to take it on good faith that you're not going to write a regulation that would direct the CEO to do something that would be contrary to a section of the act in which he or she has been given the obligation to do so in a manner that will protect the privacy of records. But you know, I want something more than good faith here, and unfortunately, because we're past 4 o'clock and we can't amend this amendment and we can't deal with the real issue, the only thing we can do is get you to make a commitment on the record.

I would like you to commit that the regulations that you develop under this section, you will provide to the privacy commissioner, even though he has no jurisdiction over this act, in the same way that you are going to do that for the regulations that you are developing under the Health Insurance Act and other areas where he does have control, that you will provide that to him for comment and that you will listen to his comments with respect to that.

Because the bottom line here is that if you're a member of the public -- if you're you, if you're me -- you don't care whether the medical record is in the hands of the general manager of OHIP or the CEO of a hospital. You want to know that your medical information is held private and that there are rules that guard against the disclosure of that in a way that is going to jeopardize you and your privacy, and you want to know that someone cares enough to make sure that the rules are right.

Again, with all due respect, the way in which we've seen the scrambling going on, the way in which we've seen the last-minute, last-ditch efforts to deal with this, and always, always preceded by proclamations that there is no problem, I think that the public can only have confidence if in fact it is the privacy commissioner who reviews that and who says he is comfortable with what is set out in regulations.

I will support this amendment because it is better than nothing, but boy, I'll tell you, what a shame that this is the way we had to get to it, at 4 o'clock, on the deadline when amendments could be filed.

I will support it, but I want a commitment here on the record today, something that you are prepared to bind the minister with a commitment that he will share the regulations, in a draft form, under this section with the privacy commissioner and will listen to that input and build any concerns the privacy commissioner has into the regulations that you then take forward to cabinet and publish under this section of the act. That is the least you can do, given the way you have botched the handling of this all the way through.

I guess the last point I will make on this is that at least you listened about a legitimate concern that was raised under this section, and I suspect because it's an area that's got a lot of public attention. If it had been determined that when you sort of railroaded it through, as it appeared you were going to do at one point in time until the argument switched here, there would have been a public outcry, so you scrambled to fix this one -- unfortunately you didn't scramble to fix the very legitimate issue I raised around the supervisor's powers and sunsetting of that, but it's past and done.

What I want to know is, what are you going to do later today or tomorrow, when you say, "Oh, there's no problem with that," and I walk you through the act once again and point out to you things that you didn't know and that you didn't see, which obviously happened with this, and you come to an understanding that I actually have a reasonable point and we can't table any more amendments and we can't amend the amendments that are before us? What am I going to get, a commitment that when the Legislature comes back in March you'll open up the act again to fix that?

Maybe we should get an agreement that if you continue this process and you ram it through and pass it on Monday, we get a committee to review and debate all the rest of the amendments anyway, because it would be instructive for us all and because we'll probably find a whole bunch more mistakes. Then we could have a mini-omnibus bill to correct the omnibus bill or to amend the amendments to the omnibus bill in March. What do you think about that? Is that something that you could agree to?

Maybe what we need is over the course of the next number of hours for the government members to think very carefully and to consult with who they will have to consult with about the very real issue here in terms of passage of good law. There's not one of you who can defend at this point in time that you know the rest of these 300 amendments either should be rejected, if they are opposition amendments, or passed, if they're government amendments, and that there are no more mistakes. You can't. There's not one of you who can do that, and you know that. So maybe what you need to do is do a bit of soul-searching, a bit of discussion with other caucus colleagues, and sit down with your ministers and with the government House leader and say: "We actually agree with the opposition. We need another week in clause-by-clause to go through and to understand and to deal with and to be able to amend amendments or table further amendments where we find sections of the act that are severely flawed."

I'm not going to move a motion right now, because if I did, you'd all have to vote against it. I know that. But I am pleading with you to go away and to think about this and to try and bring some sense to this process so that we don't have to spend the next number of months after you pass this bill stumbling over unanticipated consequences because we didn't have the time to debate and to understand fully the amendments that you've put forward and/or any errors contained in those amendments or we didn't have the time to debate the legitimate points of concern that the opposition were trying to raise then or the public's been trying to raise.

I leave you with that thought. I will support this amendment. I thank Mrs Johns and the ministry staff and leg counsel, who worked and scrambled to get this tabled before us at 4 o'clock, and I ask you to think about the points I have made very seriously and not to take them lightly and not simply to respond in the way we have seen all the way through this, which is to say no to any reasonable suggestion around process that the opposition has made. I hope it's a question that we can visit together either later today, or probably it would be more constructive to be first thing tomorrow morning, so you would have time to do the appropriate consultations so that your answer that you come back to us with we know will carry the full weight of your ministers, your cabinet, your government House leader and your Premier.

Mr Phillips: I too will support the government motion. I think the public should be aware that what we're dealing with right now is the whole process for closing hospitals. The government's indicated that there's a need for some substantial restructuring, and most people would agree. So here we have a bill that had the process for hospital closings in it, and we in the opposition said, "Surely there should be some protection for people's personal information when a hospital closes." Up until 15 minutes to 4 today, we were told by the government members: "No, there's no need for this. It's all handled." Then the rug was completely pulled out from the government members when, lo and behold, they were wrong again. The privacy commissioner says: "Whoa. This is extremely important. When you get the plywood on the windows of the hospitals, the Teperman hoardings going up, we don't want the records blowing around the back parking lot. They have to be protected somehow." But lo and behold, that wasn't part of the act.

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The public have to be absolutely scratching their heads out there: "Wait a minute." The privacy commissioner, for four weeks, has been blowing the whistle, saying, "What could be more important than people's privacy records?" and when you're closing the shop, turning the lights out, putting the hoardings around for Teperman to move in, there's no protection for people's personal records; out in the back parking lot, as Laidlaw pulls up to pick them up, blowing around are people's personal records.

It took the two opposition parties 15 to 20 minutes to pull this out. The government still said it wasn't a problem. Both my colleague Ms Caplan and Ms Lankin went out and got on the phone, on their own, and it is a problem.

Mr Cooke: They wouldn't get on the phone; they wouldn't even adjourn.

Mr Phillips: My colleague says they wouldn't adjourn to deal with it. We now, fortunately, have a provision in here to protect what all of us agree is an absolutely fundamental personal privacy, and that's your medical records.

But my point is this: It was absolutely under the wire. The stopwatch was on, the staff was writing the motion, someone was furiously typing it, and they ran up here and got it on your desk at 4 o'clock, just before amendments closed. This is no way to run a province. There are people at home watching, and there should be a warning on that TV screen to sensible people: "There are scenes of gross incompetence by the government members. You may not want to watch this consistently, because it's very upsetting."

Seriously, here we are dealing with something absolutely fundamental. I guarantee you Ernie Eves is looking at, "How do I cut the legislative channel out so we don't subject ourselves to any more of this embarrassment?" I'm afraid this may be one of the last shows you'll see; he won't want this going on much longer. I honestly do not blame the members across. They've done a marvellous job on behalf of the government of defending the indefensible and they've demonstrated some terrific talents. There's some other talent there that Mr Clement should let at it a bit, but you've done a great job of trying to defend the indefensible. It has turned into a comedy.

It was only through simultaneous phone calls to the privacy commissioner that we got the latest one out, and now we've got an important amendment so some people can say, "Thank heavens." But here we are, we're at number 36 of 327, and there are 10 more we just got. So I despair of what the public must be thinking of the government. We will continue to try and find improvements to the bill. We'll support this one and move on to the next one and see if we can't, as fast as we can, in the remaining -- I think we've now got three hours left to fix the bill. We'll be supporting this.

It really is an embarrassment to them, but it's not them you should be blaming; it's whoever is in their big offices. Thank God there wasn't a traffic jam out there, or we wouldn't have gotten some of these amendments today, because literally they came in at two minutes or three minutes to 4. We'll support this amendment and hope we can get on to find some more opportunities for improvement.

Mrs Johns: Privacy is always an issue that is very important and has been very important with this government. Mrs -- Ms Lankin asked me if we would consult with the privacy commission's office prior to enacting regulations.

Ms Lankin: On a point of order, Mr Chair: I give Mrs Johns absolute permission to call me Frances. It would be a lot easier for her, or I could from time to time go like this and back to the Chair.

Mrs Johns: It's even worse than my usual mistake. I was going to call you Mrs Caplan this time. Sorry.

Mrs Caplan: Now, let's not get carried away. That's the Chairman's prerogative.

Mrs Johns: The ministry always consults with the privacy commission office prior to enacting regulations. We will certainly be doing that this time. Personal records are very important to us. It was never our intention to have the personal records of the people of Ontario strewn around parking lots, as you've suggested. Thank you very much for helping us to put this through in the last few minutes of the process.

The Chair: All those in favour of this amendment?

Ayes

Caplan, Clement, Cooke, Ecker, Hardeman, Johns, Lankin, Maves, Phillips, Sampson, Tascona, Young.

The Chair: I declare the amendment carried.

Mrs Caplan, we need a decision on your --

Mrs Caplan: I will now withdraw that amendment.

The Chair: Okay, Mrs Caplan withdraws her amendment to section 12.1. We've already carried section 12. We now move on to section 13.

Mr Maves: Since we opened up section 11, do we have to --

The Chair: No, we opened up section 11.1.

Mr Maves: Do we have to pass section 11 again?

The Chair: No. It's a separate section.

Mr Phillips: Battling Chairs, eh?

The Chair: Professional jealousy. We don't get much opportunity.

Mr Maves: Just trying to help.

The Chair: We now move on to section 13. The first amendment we will deal with is a government amendment.

Mrs Johns: We would like to stand this down until the next motion is looked at, please.

The Chair: Unanimous consent to stand it down? Okay, the next amendment is a Liberal amendment.

Mrs Caplan: I move that clause 32(1)(u) -- no. We have a replacement amendment, I believe, 37A, because the government has stood down its amendment --

Mr Phillips: They like ours.

Mrs Caplan: All right, we're ready.

I move that subsection 13(1) of schedule F to the bill be struck out and the following substituted:

"13(1) Clause 32(1)(d) of the act is amended by adding `and providing for filing of bylaws with the ministry' at the end."

Ms Lankin: I'm obviously not privy to all the discussions that have been going on here between various parties. I'm interested in knowing why the government stood its motion down in favour of Mrs Caplan's motion, and I'm interested in knowing what the difference between the two motions is. For those people who don't have them in front of them, they might be interested to know that one reads, "Clause 32(1)(d) of the act is amended by adding at the end `and providing for the filing of bylaws with the ministry'"; and the other one reads, "Clause 32(1)(d) of the act is amended by adding `and providing for filing of bylaws with the ministry' at the end." Maybe someone, in the wisdom of legislative drafting, could tell me what the difference is and why the government has stood its down.

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The Chair: Would you like to tackle that one?

Mrs Johns: Because great minds are thinking alike?

The Chair: Ms Lankin, does that answer your question?

Ms Lankin: If it were believable. I don't know why I always have a problem with Ms Johns's answers. It's consistent enough.

If I'm being unfair, someone could correct me, but I think the two amendments are identical -- except for the words being in a different place, but it's the same thing -- and that Ms Johns has stood hers down so that at the end of the process she can say they supported a Liberal amendment. I don't know why the Liberals would let her get away with that, quite frankly. If I'm wrong, maybe someone could tell me.

The Chair: It might have been in response to a request Mr Phillips made. I don't know.

Mrs Caplan: I think that's exactly what happened. We identified and responded to a concern that had been raised primarily by the hospital association and the hospitals which allowed the minister to prescribe bylaws to be passed by the hospitals. We presented this amendment, and the government had drafted one very similar to our own. They were quite happy with ours and decided they'd like to find one amendment of ours that they could accept. I suspect this is it.

If they think we're going to be satisfied that they have found one amendment they are prepared to support, without any further ado I will just accept that and tell them it is unacceptable to us. If they think that fixes this bill, it does not.

But this is a serious amendment. The Ontario Hospital Association and the hospitals were very concerned that the minister could impose by writing hospital bylaws. This does respond to that one concern, although there are many concerns left outstanding. The fact that they haven't accepted all our amendments leaves the bill badly flawed.

The Chair: Shall the Liberal amendment 37A carry? Carried. Do we need a recorded vote? I guess we don't need a recorded vote. Ms Johns, you will withdraw 37?

Mrs Johns: I withdraw it.

The Chair: The next amendment we will consider is an NDP amendment, page 38.

Ms Lankin: I move that clause 32(1)(s) of the Public Hospitals Act, as set out in subsection 13(3) of schedule F to the bill, be struck out and the following substituted:

"(s) prescribing the classes of grants by way of provincial aid and the methods of determining the amounts of grants, providing for the manner and times of payment and the suspension and withholding of grants and for the making of deductions from grants and providing for loans to hospitals."

Let me remind you that when we dealt with section 3 of schedule F, we had a concern about the way the act repealed the definition of "provincial aid" for the purposes of the Public Hospitals Act. We also had a concern over the way in which funding decisions could be unilaterally made by the Minister of Health without reference to regulation etc. The regulation-making section under this act is very vaguely worded in terms of what would be set out. We were also concerned because section 6 gave the minister the discretion over hospital funding on a case-by-case basis, and he could make any decision he wanted in the public interest.

When we put that all together, we felt there needed to be something similar to the old act, and this is the regulation-making section out of the old act which talks about "classes of grants by way of provincial aid," because it gives some sense of fairness and equity across the system and some ability that people will work through and/or negotiate what the different classes of grants are. It allows for a myriad of them; it doesn't hold people in any way to a universal, across-the-board circumstance.

We certainly have major concerns with all the ways the powers have been changed and all the ways it's been given unto one person and not even a reference to cabinet, let alone Legislature, let alone public bodies etc.

However, having said all that, let me tell you, it's so clear to me, given what we've been through, that there's no way I could get the government to support this. So it's been read into the record. That's fine by me. I'll withdraw it at this point.

The Chair: Thank you, Ms Lankin. The next amendment we will deal with is a government amendment, page 38A.

Mrs Johns: I move that subsection 13(3) of schedule F to the bill be amended by adding the following clause to subsection 32(1) of the Public Hospitals Act:

"(t.1) prescribing such persons or entities to whom medical records may be transferred under subsection 14(2)."

These were regulations brought forward as a result of the most recent discussions on medical records, and we have brought those forward as a result of the discussions we had with both parties recently about medical records.

Ms Lankin: Could I have a moment, Mr Chair? I haven't had a chance to see this. This is one of the last group that was filed.

Mrs Caplan: If I could, while Frances is looking at it, let me just make sure I've got this clear. The intent of this is to fix a section of the Public Hospitals Act that does not contemplate what happens to the records when a hospital's closed. This allows for the designation of individuals or entities, and an entity could be a company or a corporation. "Entity," in law, is broad -- flexible, to use your word, Ms Johns -- so the government can assign responsibility and then hold and be accountable for those records. Is that the intent of this amendment?

Mrs Johns: Yes.

Mrs Caplan: It's a necessary amendment and it is companion to the issue we raised just recently. I think it's worthy of support.

Ms Lankin: I understand the intent of it, that this is the regulation-making power under the subsection 14(2) that we just passed. Is that correct? Could someone help me technically on the numbering? We have section 32(1), which is the regulation-making section, and we have sub (t), and under (t) we have subsections (i) through (iv). This appears to be (t.1). Is there a reason why it's not (t)(v), for example?

Ms McKeogh: The wording of clause (t), just the opening wording in that sentence, didn't lend itself to this.

Ms Lankin: So this follows (t)(i) through (iv), and it's the next section, a stand-alone? Okay. Thank you.

The Chair: All those in favour of the amendment on page 38A? Carried unanimously.

The next amendment we will deal with is a government motion on page 39.

Mrs Johns: I move that clauses 32(1)(u) and (u.1) of the Public Hospitals Act, as set out in subsection 13(3) of schedule F to the bill, be struck out.

In clause (u) in Bill 26, the board could revoke appointments and where doctors' rights to hearings and appeals may be limited or eliminated, so we are deleting that clause. We are also deleting clause (u.1), which provides protection from liability for corporations that own or operate hospitals where boards exercise power to revoke appointments.

In the following two amendments, both the Liberals and the NDP have suggested that these two clauses be struck out.

The Chair: Any further discussion on the motion? Ms Lankin.

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Ms Lankin: I'm sorry. Could you tell me again what clauses (u) and (u.1) do?

Mrs Johns: Clauses (u) and (u.1) provide that regulations may be enacted to permit a board to exercise the powers in subsection 44(1) under other prescribed conditions without hearings, appeals or liabilities for damages.

Ms Lankin: That's clause (u), right?

Mrs Johns: No, that's (u) and (u.1).

Ms Lankin: That's a little different than what you just explained to us a minute ago -- very different.

Mrs Johns: Two different ways of writings them down. I wrote it down both ways. We didn't like the other one.

Ms Lankin: The other one had nothing to do with this. It's got nothing to do with the liability of a hospital. This has to do with the regulations under which you can revoke physicians' privileges and/or they can appeal it or not appeal it. Right? I just want to make sure we're dealing with the right section, because your first explanation was very different.

Mrs Johns: Clause (u.1) also deals with damages protection.

The Chair: Mrs Caplan.

Mrs Caplan: I have a question of the parliamentary assistant. We have real concerns about this. I'd like to know what was the minister's rationale for including this in the bill in the first place, given the fact that this would have passed, and it was the intention to pass this, before Christmas without public hearing. This strips doctors of all their rights of appeal, of all rights of due process should a hospital be named for closing. In fact, by leaving in clause (v), and that's why we have the following amendment, you still say that you can change the appeal process and set up alternate appeal mechanisms.

I must admit I couldn't understand why it was there in the first place and I'd like to have a better understanding of those sections even though you've taken them out.

Mrs Johns: I'm going to refer to the ministry.

Mr Finkle: Subsection 44(1), which it refers to in clause (u), removes the ability to appeal change, alteration of privileges or appointments for physicians where a hospital closes, where it ceases to operate, and there might be other circumstances where other aspects of restructuring, like the movement of privileges between facilities --

Mrs Caplan: It was the "other circumstances" that I think everybody was quite hysterical about.

Mr Finkle: That's right, and they're undefined. We've clarified subsection 44(1) to be "cease to operate," which is very clear.

Ms Lankin: "Cease to provide services."

Mr Finkle: "Cease to provide services." Now those are the only two conditions where appeal to the Hospital Appeal Board would be restricted.

Mrs Caplan: So the question that I have is, Peter, what do you envision happening? There's no protection here for any doctor who has privileges or a staff position in a hospital that's slated for closing, or process set out for how you're going to move those services to another hospital, assurance that that doctor will have the opportunity for those privileges.

I certainly can understand their concerns, because these are their lives. They've spent their whole life working in a hospital. They're good, they provide good service, there have never been concerns, and all of a sudden that hospital's slated for closure and they have no assurance of where they're going to be able to practise because they rely on a hospital because they need that facility to be able to deliver services. This legislation provides no mechanisms or assurance for that transition, so I thought this would be a really good time to ask you to explain how you contemplate that happening.

Mr Finkle: The only experience in terms of a labour adjustment plan for physicians, let's say, in a hospital restructuring context is the Metro plan, in which in all instances there are more services being provided at the end of restructuring -- at least the same amount, and in Metro's case it calls for the caseload to actually increase. The need for physicians is at least the same, but it's in different locales, different locations, so that there'll be movement of physicians between facilities.

Appointments to other facilities are still appealable to the Hospital Appeal Board in all instances. If you are denied an appointment for some reason, it's still appealable. That's my understanding. But in circumstances where a hospital is closing or when it's ceasing to provide an entire service, then it's denied the appeal.

Mrs Caplan: So people should be concerned about how this is going to happen, and the ministry has not only not contemplated it in legislation, but as yet has no mechanism contemplated that would ensure fairness in that process.

Mr Finkle: In clause (v) there's an ability to pass regulations which would deal with other circumstances, other procedural protections. We would like some time to consult with various groups, including Ontario hospitals. Metro outlines a process where you would have some discussion by the sector in its entirety.

Mrs Caplan: That's exactly what I was waiting to hear, because consistently through all of these proceedings we have heard Mrs Johns talk about the speed with which you're going to move. Now we're at the heart of what the problem is, that the consultations have not occurred -- we know that there wasn't consultation on the bill -- but there are a lot of very significant issues affecting people's lives and affecting patient care that haven't yet been contemplated.

One of the reasons, Mrs Johns, that we are so concerned about the speed with which you are planning to move, the lack of accountability, the lack of due process and the lack of natural justice is because you haven't had the time to develop the mechanisms in consultation with anyone. So when we get phone calls from our constituents who are worried about how they are going to get the service, what's going to happen to their doctor, we have to say to them: "We don't know. The ministry hasn't even consulted anybody about that yet, and yet they're telling us that this restructuring commission, they want to have it in place, we were told, January 1." That's why you had to have this bill before Christmas.

I'm not being hard to get along with. These are serious public policy concerns. When do you expect that you're going to be able to tell people what you're going to do? They don't think you know what you're doing. You're looking very incompetent.

Mrs Johns: I think people recognize that the implementation part of the hospital restructuring is a new process that we're going through here. This regulation allows us the flexibility to be able to say, "Yes, we can handle this and we can move forward."

We have consulted, so far, with the district health councils. They've looked at this as they've talked about their local initiatives and how they're going to both deploy manpower and their hospitals. So we have looked at it but we have further consultation to go on it. We admit that.

Mrs McLeod: Mr Chairman, it just occurred to me that if anybody was actually trying to follow what we're doing here and understand what the answer was to the public concern that was expressed repeatedly, in this case by physicians who saw their right to appeal being denied by this legislation and who have done a considerable amount of work to analyse the bill that was presented and discovered that their right to appeal had been affected, if they wanted to know whether or not they should feel okay, it would be very difficult to know from an amendment that comes in and says "clauses 32(1)(u) and (u.1) of the Public Hospitals Act, as set out in subsection 13(3) of schedule F to the bill, be struck out," even if they had Bill 26 in front of them and they could go to page 53 and look at (u) and see that it says:

"(u) providing that a board may exercise the powers set out in subsection 44(1) under conditions other than ceasing to operate as a public hospital and providing that in that case any or all provisions in subsections 37(3) to (7) and sections 38 to 43 will not apply and, for the purpose, prescribing those conditions;

"(u.1) "providing that subsection 44(4) applies with necessary modifications with respect to a regulation" etc.

That's the part that's been repealed. I have no idea what that says to the basic question of, does a physician have the right to appeal his dismissal in the event of a hospital closure, and furthermore, how is that limited by the entire clause (v) that follows, which is not addressed by the amendment, which seems to still set out complete power to determine under what conditions a physician will have the right to appeal? So the bottom question is, what's your answer to all the people who came in and said, "We feel you are taking away our legitimate right to appeal"?

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Mrs Johns: We don't believe that is so and I'll refer that to Mrs McKeogh.

Mrs McLeod: That was a question asked during the hearings. I'm just saying, how does this bill, as amended by your proposal, address that question?

People said to you: "We're worried about our right to appeal being withdrawn. This bill takes away our right to appeal, a basic right that we have." You've brought in an amendment that says, "We hear you and we're addressing it," at least we think it does, but none of us have any idea, from what I just read, of whether you've addressed it or not.

So I'm asking you a straight-out question. Those people came in and said, "We've got a concern." You've said, "We're addressing your concern." How have you addressed their concern?

Mrs Johns: When a hospital closes or ceases to offer a service, then there is no right of appeal. But as we have heard from the ministry people, especially with the only plan that we have available at this particular point, the Metropolitan Toronto District Health Council report, there will be more demand for doctors but it will be in different areas.

Mrs McLeod: May I ask, because I don't know what (v) means now -- I simply don't have all the other acts in front of me that I need -- so when (v) applies, is that where a hospital has not ceased to function, therefore there's no closure? You can stili limit the right to appeal on dismissal?

Mrs Johns: I'm going to refer to legal counsel.

Ms McKeogh: The way the act works with this amendment is as follows. In the body of the act, section 44, the rights to hearings and appeals are limited in two situations: when a hospital's closing or ceasing to provide a service.

Clause 32(1)(v) says that where rights of appeals and hearings have been limited or do not apply, there is a power to enact regulations prescribing alternate or additional processes.

So the limitations have occurred in two circumstances: closures and ceasing to provide a service. That's in the act, section 44. There is in (v) a regulation-making power to prescribe alternate procedures.

Mrs McLeod: So, "You have no right to appeal, but we may give you a right to appeal in the future"?

Ms McKeogh: In the regulation-making power, yes.

Mrs McLeod: Thank you.

The Chair: Ms Lankin.

Ms Lankin: I think, just to try to put this in plain language because we were given an explanation earlier that was incorrect with respect to what this does, and a little bit of history on this -- when Bill 26 came in, it said where the minister directs that a hospital's going to close, "Where we're going to close a hospital," then privileges are revoked and the doctor's got no right of appeal.

It also said, "In any other circumstance that we determine" -- anything -- "we can also take away the right to appeal." Well, some of us howled. A lot of doctors who came forward certainly howled about that situation, and we heard about what this means in terms of doctors who are patient advocates within the hospital system, for example, nephrologists.

I remember a very compelling presentation -- maybe there's someone over there who doesn't agree with me on this, but I thought the nephrologists' presentation was very compelling. They indicated that their dialysis department, which is a disease-driven service and the numbers are increasing and therefore the demand is increasing at a time when the hospital budget was shrinking -- they were in a position that they were becoming quite a thorn in the side of the hospital CEO by arguing for more money out of a shrinking pie, and that in fact there are lots of times where doctors have strained relationships with their CEOs as they are advocating around patient care or around departmental issues.

They felt that if there is a blanket ability for a circumstance to be set out where a CEO can just revoke the privileges and there is no appeal, in addition to the situation of closures, it would have an incredible, chilling effect on the role of doctors as patient advocates within the hospital setting.

So, over the course of back and forth and trying to get amendments to this, there was an amendment brought in which tightened up that "in any other circumstance" and specified, because we said, "Well, when are you going to use those powers?" and what we found was that in addition to closure, the "other circumstance" is where a hospital "is directed to or decides to cease to provide a service." In those two situations you don't have any appeal if you're a doctor unless the minister decides in regulations that he wants to give you the right to appeal. We don't know when the minister will decide to do that or why the minister would or wouldn't or whatever. That's a situation we're left with today.

I guess the concern I have that I'd ask the parliamentary assistant is in a circumstance where the hospital is directed to cease to provide a service or decides -- let's say is directed. In fact, in a number of the situations where there are going to be mergers or amalgamations of services, a rationalization of services, even if the hospital corporation and physical plants remain separate -- there are lots of studies looking at rationalization of services where all of neonatal care may be moved into one hospital and that sort of thing -- where that happens, presumably one hospital may be directed to cease to provide the service as part of the restructuring that you're doing, the rationalization of services.

The question that the doctors still have is, why would you have a situation where their hospital privileges are just completely revoked and there isn't a process or a guarantee that they can actually follow their patients with a service to the new hospital? Why do they get put in a position of complete insecurity with respect to their hospital privileges where the service has gone to, in the ability to follow their patient?

Again, let's say it's been one of these doctors who has been a little bit outspoken and, I don't know, has a bad reputation in town or something -- not for patient care, not for quality of patient care but for standing up to hospital administration -- and you move it over. If you don't give any rights to appeal under your regulation-making section, because we don't know what you're going to do there or on what grounds, what happens to that doctor? That doctor may have the CEO at the new hospital deny privileges in relationship to this. I'm really lost as to how you're going to reassure that doctor and the patients of that doctor in that circumstance with the amendments that we have here. I feel like there's one more amendment we need to fix this, and there's the missing link.

Mrs Johns: I'm going to explain part of it. Basically what I'm going to say is that when a hospital closes down or is directed to move its service somewhere else, there is really no reason why we would keep the doctor with his privileges at that hospital, obviously, because the service is no longer going to be provided there. So your question to me then becomes, why didn't we move his privileges to another hospital?

Ms Lankin: Why have you cut the doctor off without knowing that his privileges are going to be removed and without some surety of due process, should he be denied an application for privileges where the service went?

Mrs Johns: He can apply at the other hospital for privileges and he can appeal that decision if he's unhappy with that decision.

Ms Lankin: Under what grounds?

Ms McKeogh: It would be the normal appeal process in the Public Hospitals Act, whereby any physician is entitled to apply for an appointment and can request a hearing before the board, a hospital appeal board and so forth, Divisional Court. It just falls back into the normal course of the act.

Ms Lankin: So there's no guarantee that the doctor will be able to follow his patients with that service when you rationalize the service. That's the piece that I'm saying is missing from this act. There's no guarantee. So there is an insecurity left for those doctors in those circumstances. Is that something that, if you had a chance, you would be willing to try and work to fix in the legislation? It was a fairly strongly made point by the physicians coming forward.

Mrs Johns: I don't think so. I believe what we believe is happening, especially in the Metropolitan Toronto District Health Council, is that there are lots of opportunities for doctors to obtain positions and that there will be other opportunities. If all their patients are going to another hospital, there's obviously a need for the doctor to be at that other hospital and so they will receive an appointment. There's just not going to be an influx of patients and they're going to able to handle the same number of doctors. I mean, that will not be what happens.

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Ms Lankin: But you see, what you haven't done is dealt with some of the circumstances and concerns that doctors are feeling themselves with respect to their ability to continue on practice of medicine. Let's say in this case the doctor's a specialist, if that specialist doesn't get hospital privileges, what happens to their ability to practise in the province of Ontario?

Mrs Johns: They can obtain positions with either hospitals or a health facility. From that standpoint, we know there are positions throughout Ontario for specialists in different areas.

Ms Lankin: I think you're suggesting that in this circumstance there is no guarantee for that specialist that they would move with the service with their patients to a hospital, and without a hospital appointment -- I think I'm right, if I remember now, further into the act that we haven't got to in terms of amending it; I think it's under the Health Insurance Act but I'm not sure where it is -- but they require that relationship in order to maintain a billing number.

Mrs Johns: The ministry wants to comment on that.

Mr Finkle: Yes. I think that this deals entirely with another section of the act, this linkage of privileges, specialists' positions in hospitals.

Ms Lankin: And billing numbers.

Mr Finkle: And billing numbers. One of the things that's clear about most restructuring exercises, or the principle that you speak to, the movement of physicians with patients and keeping programs intact for quality reasons is a very strong principle in good restructuring exercises. Windsor and Metro are two prominent ones where the physicians as a group have gotten together and worked this out, and we're going to have to rely on some of that goodwill and development of agreements between physicians and hospitals to facilitate this.

Ms Lankin: Okay. Again I just want to point out some what I see as real problems in how this act has been put together and developed. We had a discussion some time in the last couple of days about the issue of tying terms and conditions to funding, and there we were told that one of the things that we wanted to be able to do was to insist that a hospital had an operational plan in place and that was the term and condition that we were going to tie to it. I argued there were a lot of other sections that you had the power, but what I was told then was, "We do this now, but it's by policy and under goodwill and we want to have the power to insist."

A few amendments ago I suggested an amendment which talked about, in the cases of hospital closures, mergers and amalgamations, the need to have a workforce adjustment plan for all the health care workers, including the physicians, so that you had the power in the legislation to insist that that happen and that people be dealt with fairly and that these things be worked out, and you rejected that. So where you want to have the power, you don't rely on goodwill and policy and the way it has always been done or the status quo, as we had a debate yesterday I think that was, and where you don't, you don't want to be fettered and you argue, "Gee, we don't want to be restricted and we don't need that."

I don't think there is anything more that I can say with respect to this section, Mr Chair. I just point out again the basic inconsistencies in the way in which the government is approaching this and in the way in which it is argued from both sides of the fence, either a political defence for ministerial powers or a rejection of ministerial powers in order to defend the politicians and their actions down the road.

This is once again bad law, and I really, really hope that people are going to take my suggestion about tomorrow morning and an opportunity for us to make a recommendation that we spend one more week going through this, because I think we'll continue to find areas like this which will be really helpful when we come back in the spring and we do have to deal with the mini omnibus bill to fix the amendments to the omnibus bill. I'm absolutely convinced it's going to be necessary. Every day I become more and more convinced of that.

The Chair: Thank you, Ms Lankin. Mr Phillips, followed by Mrs McLeod.

Mr Phillips: Just to follow up on the discussion Ms Lankin had, I can't for the life of me understand why the government hasn't incorporated the suggestion of some kind of a mechanism where physicians will have access to a process that they feel is fair if their hospital is closed, to a system in getting legitimate standing at another hospital.

I've a little bit of experience in this, not much, but in my Scarborough days actually I was chairman of the Scarborough General Hospital. I could see the challenges coming in about 1983 or 1984 and I --

Interjection: Got out.

Mr Phillips: No, no. I helped to form the -- I think it was my idea; if it works, it's my idea -- Scarborough Hospital Coordinating Committee, to try and get the hospitals working together, because you could see the handwriting on the wall, and to find ways to rationalize services so each of the acute care hospitals wasn't unnecessarily duplicating services.

But the thing I learned there is that physicians have an intense loyalty, obviously, to what they're doing, that there is a natural competition between hospitals -- some very healthy, frankly -- but if you close one hospital and cut adrift those physicians and they don't feel they have fair access to standing at the winning hospital -- and that's how it will be viewed in communities: there will be a winner and a loser.

Why you would ever want to set up a process where you almost guarantee that the losing physicians have no recourse but to really launch an all-out attack to protect their legitimate rights -- why in the world wouldn't you have put in this bill a process that all the physicians would feel offered them some fair recourse to a fair hearing? Because I will guarantee you that in a community where there are two hospitals and one closes and one stays open, if you leave the physicians all on their own to try and get a fair hearing at the winning hospital, it is not going to happen. Human nature doesn't work that way. There should be in this bill truly a process that physicians feel gives them the fair access. Perhaps the parliamentary assistant is going to tell me that they're going to do that.

Mrs Johns: No, I was going to say that they have an appeal process. When they apply at the new hospital or the second hospital, they can appeal decisions where their privileges aren't granted to them. So they have the ability to appeal.

Mr Phillips: Appeal to whom?

Mrs Johns: The new hospital.

Mr Phillips: No, no. The decision that the new hospital has made is that they don't have standing. Who do they appeal to?

Ms McKeogh: They're entitled to a hearing before the hospital board itself. Then they may appeal to the hospital appeal board and then they may appeal to Divisional Court.

Mr Phillips: Have you ever talked to a physician who's been through that appeal process and how they feel about that?

Mrs Johns: Personally? No.

Mr Phillips: A physician who's denied standing at a hospital has that --

Ms Lankin: But that's for the purpose of when there's a challenge around the quality of their services.

The Chair: Mr Phillips has the floor here.

Ms Lankin: It's not around restructuring and closing services.

The Chair: We've got another conversation going on here.

Ms Lankin: I'm sorry; it's not actually on the record.

The Chair: Oh, okay. You're bothering Mr Phillips though.

Mr Phillips: They weren't bothering me, but they're probably bothering others.

I'm just saying that if you've talked to physicians who have been through that process, that's a very unsatisfactory process normally, the end. I don't know where to go from here, because obviously you're not going to do anything about it. We're down to three hours' debate now so I kind of throw my hands up, but why you would build a recipe for problems into the bill when you have an opportunity for a recipe for some solutions is frankly beyond me.

Mrs McLeod: I just want to make the point that, as the government members keep telling us, these are extraordinary times and this bill is about taking extraordinary measures. It is not a bill about past practices or about goodwill; it's a bill about restructuring. It is also a bill which, if we ever get to it, sets out considerable procedures and powers for the government to determine numbers of physicians, quotas for physicians in particular areas.

I would suggest it seems highly logical that in a scenario where there are going to be hospital closures, because that is what schedule F is all about, the power to close hospitals, and if furthermore the government believes that there are areas of this province which are oversupplied with physicians and wants quotas to be able to control that, which is another major focus of this bill, that there are going to be physicians who do follow to the new hospital.

I don't know of any appeal procedure that might exist that would have -- theoretically it might be possible, but if a new hospital says, "We have a requirement for X numbers of physicians. We've filled our requirements," it seems to me there are probably even other protections in this bill, if we were to cross-reference, for that hospital board to say: "We've got all the folks we need, thank you very much. We don't need you."

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So this becomes one more measure by which the government can act to reduce the number of physicians in a particular area and it leaves the physicians, I think, with no recourse at all, unless something is granted by regulation under this clause (v) which remains, to say, "Why did you choose him and not me and what happens to me now?"

We're not going to win this, it's obvious, but to suggest that the physicians are just going to flow nicely to the new hospital and that all of the physicians who are in 12 closed hospitals are going to find positions in their new hospitals seems to me to be not very consistent with the government's agenda here.

The Chair: Any further discussion? All those in favour of the amendment? All those opposed? The amendment carries unanimously.

Ms Lankin, the next one we deal with is yours, and as I read it, it is a duplicate of the one we just passed.

Mrs Caplan: See, they've already accepted one of yours, Frances. That's why they put theirs in and didn't take this one, which was identical to theirs.

The Chair: Are you prepared to withdraw?

Ms Lankin: I'm just flipping through pages, because I had a 39A from the Liberals and I see that there's a replacement, which is 39A renamed now 39B. So that follows mine. Is that what's happening?

The Chair: Yes, the 39A that was yours was a duplicate of the government one we just passed. Will you withdraw that?

Ms Lankin: Sure.

The Chair: The next one we deal with is 39A, renamed 39B, a Liberal motion.

Mrs Caplan: I'm going to withdraw this motion and I'd like to say why I'm going to. What we had originally intended was that all of those sections which we saw as tremendously unfair to physicians who were impacted by a hospital closure -- we felt they should all be withdrawn so that the existing protections would be in place. But after the conversation that we've heard, in fact there are no protections in place and the only hope, the only "I'll respect you in the morning" clause, is (v), which says, "By regulation, maybe there will be something in place that will offer some protection." But it goes along with, "The cheque is in the mail," and we don't know what the plan is. We've heard from Peter, who's very well-meaning, who says they're having consultations now about something that may solve this problem.

Frankly, I am concerned that there's nothing in the legislation that assures that, because I'll tell you something -- and Gerry's absolutely right -- if you want to avoid the kind of real ill will in communities, you had better get something in place that's going to deal with those issues of transition. As I understand it today, the minister will have absolute hands-on ability to determine the human resource plan and approve those plans from the hospitals as they relate to physician manpower. You're going to have billing number controls under this legislation, and --

The Chair: Are you withdrawing this motion?

Mrs Caplan: I am speaking to it and then I will withdraw this, because I think the only hope is that clause (v) may be able to do something. So I will withdraw this amendment, although I do it sceptically. This bill is very inadequate.

The Chair: The next amendment is a Liberal amendment, page 40A.

Mrs Caplan: I move that clause 32(1)(z.1) of the Public Hospitals Act, as set out in subsection 13(3) of schedule F to the bill, be struck out and the following substituted:

"(z.1) authorizing any person, group of persons or other body to issue directions under subsection 6(2) or 9(8) and to issue directions amending or revoking directions made under subsection 6(2) and respecting any conditions to which that authority may be subject."

Speaking to that, part of the concern that we have with this of course is, as Mrs McLeod said, when you read these sections in the bill, nobody who hasn't had legislative experience understands what they mean. But the intention of this amendment is to do the following: It would limit the minister's power to delegate his authority to the power under 6(2) to close and redefine certain hospital services, and under 9(8) it limits the minister's powers and the directions that he would give a supervisor appointed to a hospital. Perhaps another way to look at this amendment is that it does not permit, as the bill does, the delegation of power to direct the closure or amalgamation of hospitals. Speaking to it, that's what it does; that's the effect of it.

I don't believe the minister needs that authority, and I'm going to tell you why, and I've said this before at the committee. I believe that in fact the minister only needs two powers to be able to restructure. I'm very concerned that having the power in the minister's hands, without even requiring cabinet approval, without coming to the Legislature, without requiring a district health council report, without requiring by legislation any community process whatever, and frankly, without any appeals, without any due process, without any natural justice built in, that is wrong. It's bad law and it's wrong, and it should send a chill through every community in the province.

But there are only two powers that the minister requires, and that is the funding authority and the ability that, unless it can be proven that he acted in bad faith, his decisions on funding authority cannot be challenged. That's all the power he needs to be able to say to a hospital, "You're not going to have the budget to deliver the services and I'm transferring those funds to other hospitals for service delivery."

Why a minister would want the power to close, amalgamate and merge and interfere with local planning decisions, frankly, is beyond me when he has all the authority and funding power that he needs now. He has that now. I think that's not a power that any minister should have, the absolute power to be able to arbitrarily say, "I'm going to force a merger" or "I'm going to close a hospital."

This amendment is a very important one. I'm telling the minister -- I'm trying to be helpful -- through the parliamentary assistant, you do not need the powers. You have them in your funding authority, and you now have them or you will if you accept that you can only be sued if you haven't acted in the public interest and in good faith.

The Chair: Mrs Caplan, it's 6 o'clock so we will recess until --

Ms Lankin: On a point of order, Mr Chair: Just very quickly before you do, I want to give notice that I will be moving a motion immediately upon beginning tomorrow at 9 o'clock, with respect to extending clause-by-clause, and that I offer to the government members my availability tonight, after you've had a chance to consult, if you would like, to work together on the wording of that motion so that it is one that you could support. I'd be pleased to draft it in consultation with you.

The Chair: We stand adjourned until tomorrow morning at 10 am.

The committee adjourned at 1758.