Electronic Commerce
Act, 2000, Bill 88, Mr Flaherty / Loi
de 2000 sur le commerce électronique, projet de loi
88, M. Flaherty
STANDING COMMITTEE ON
JUSTICE AND SOCIAL POLICY
Chair /
Présidente
Ms Marilyn Mushinski (Scarborough Centre / -Centre
PC)
Vice-Chair / Vice-Président
Mr Carl DeFaria (Mississauga East / -Est PC)
Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)
Mr Michael Bryant (St Paul's L)
Mr Carl DeFaria (Mississauga East / -Est PC)
Mrs Brenda Elliott (Guelph-Wellington PC)
Mr Garry J. Guzzo (Ottawa West-Nepean / Ottawa-Ouest-Nepean
PC)
Mr Peter Kormos (Niagara Centre / -Centre ND)
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Ms Marilyn Mushinski (Scarborough Centre / -Centre
PC)
Substitutions / Membres remplaçants
Mr Brad Clark (Stoney Creek PC)
Mr Tony Martin (Sault Ste Marie ND)
Mr Gerry Martiniuk (Cambridge PC)
Mr Richard Patten (Ottawa Centre / -Centre L)
Also taking part / Autres participants et
participantes
Mr John Gregory, general counsel,
Ministry of the Attorney General
Clerk / Greffier
Mr Tom Prins
Staff / Personnel
Ms Cornelia Schuh, Legislative counsel
The committee met at 1534 in room 151.
ELECTRONIC COMMERCE ACT, 2000 / LOI DE 2000 SUR LE
COMMERCE ÉLECTRONIQUE
Consideration of Bill 88, An
Act to promote the use of information technology in commercial
and other transactions by resolving legal uncertainties and
removing statutory barriers that affect electronic communication
/ Projet de loi 88, Loi visant à promouvoir l'utilisation
des technologies de l'information dans les opérations
commerciales et autres en éliminant les incertitudes
juridiques et les obstacles législatifs qui ont une
incidence sur les communications électroniques.
The Vice-Chair (Mr Carl
DeFaria): I'd like to call to order the meeting of the
standing committee on justice and social policy for
clause-by-clause on Bill 88.
I'll start by calling for
debate on section 1. I understand that there have been 10
amendments filed. I understand Mr Martiniuk intends to ask for
unanimous consent on changing one of the amendments. But we'll
get to that.
Mr Gerry Martiniuk
(Cambridge): With the consent of the committee, may I
suggest that Mr John Gregory, who is the draftsman of this very
technical though short legislation, be permitted to sit there as
we're going through this matter in case there are any questions.
When I say "there," I mean at the table opposite me.
Mr Richard Patten
(Ottawa Centre): Yes. No problem.
Mr
Martiniuk: Thank you. Mr Gregory.
The
Vice-Chair: Mr Martiniuk, would you like to move that
amendment?
Mr
Martiniuk: No, I'll start off into a section, if I
may.
The
Vice-Chair: Let me start with section 1, and when we get
to that section you can move the amendment.
Mr
Martiniuk: Fine. Thank you.
The
Vice-Chair: Is there any debate on section 1 of the
bill?
Mr
Martiniuk: Excuse me, Mr Chair, may I move the adoption
of section 1? Until there's a motion on the floor, I don't think
we can debate it.
The
Vice-Chair: In clause-by-clause we can proceed. It's
much faster to proceed. We assume-
Mr
Martiniuk: Assume away, Mr Chair.
The
Vice-Chair: This is a government bill, so all those
sections have been moved. I would just proceed with asking for
any discussion. If there is none, shall section 1 carry?
Carried.
Section 2: is there any
debate on section 2? Seeing none, shall section 2 carry?
Carried.
Section 3: This is the
section, Mr Martiniuk, that you would like to move your amendment
on.
Mr
Martiniuk: I move that subsection 3(2) of the bill be
struck out and the following substituted:
"Implied consent
"(2) Consent for the purpose
of subsection (1) may be inferred from a person's conduct if
there are reasonable grounds to believe that the consent is
genuine and is relevant to the information or document."
The
Vice-Chair: Any comments or debate on the amendment?
Mr Tony Martin (Sault
Ste Marie): Could we have the counsel explain exactly
what that means?
Mr John
Gregory: There had been some concerns expressed by some
counsel, both solicitor and litigators, about the wording of the
provision in Bill 88. There is no intent in the motion to change
the effect, which is that if you're going to imply consent you
have to do it reasonably, and you can't imply consent to
something out in the air. It has to be tailored to what you're
dealing with.
The concern was that the
expression "reasonable assurance" might suggest that you need
some kind of document showing it. I'm not so sure, but it seemed
to be an easy concern to allay just by saying "reasonable
grounds" and saying that the consent applies to the information.
There was a danger that it would be read too specifically, as if,
"I consented to your saying yes, but I didn't consent to your
saying no," which is obviously not the kind of argument we want
to get into.
The amendment says that the
consent has to be "relevant to the information or document." I
don't think there is any change in the result. It just gets rid
of a couple of lawyers' arguments that might be used to challenge
it. If you're going to imply consent from conduct, you still have
to believe on reasonable grounds that it's right and it still has
to be relevant. As I said, I don't think we're changing the
impact at all. We're simply getting rid of a couple of technical
concerns.
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The
Vice-Chair: Any comments or questions on this
amendment?
Seeing none, shall the
amendment carry? Carried.
Are there any further
amendments? No.
Shall section 3, as amended,
carry? Carried.
Section 4 has no amendments.
Any discussion on section 4? Seeing none, shall section 4 carry?
Carried.
There are no amendments to
section 5. Any debate or comments on section 5? Seeing none,
shall section 5 carry? Carried.
There are no amendments to
section 6. Any comments or debate on section 6? Seeing none,
shall section 6 carry? Carried.
There are no amendments filed
on section 7. Any comments or debate on section 7? Shall section
7 carry? Carried.
Are there any amendments to
section 8?
Mr
Martiniuk: Yes, if I may explain. you have been provided
with amendment number 2, I guess it is. That was filed within the
appropriate time and sent out by this committee. Subsequent to
that, certain parties suggested that the word "possession" in the
amendment reading "possession of an electronic document" was
inappropriate since the document was electronic, and that
therefore "control of an electronic document" would be more
appropriate under the circumstances.
I am asking the committee for
unanimous consent to move a motion using the word "control" with
the same wording as the amendment before you.
The
Vice-Chair: Is there unanimous consent to this amendment
to the amendment?
Mr Brad Clark (Stoney
Creek): So you're deleting "possession" and you're
adding "control"?
Mr
Martiniuk: That's correct.
The
Vice-Chair: Is there unanimous consent?
Mr Patten:
Just a minute. Where is it in the bill?
Mr Clark:
It's in the amendment.
Mr Patten:
Subsection (4) is new?
Mr
Martiniuk: Yes. It's a new subsection.
Mr Patten:
Oh, it's an addition. OK.
Mr
Martiniuk: Sorry, Mr Patten. I should have pointed that
out.
Mr Patten:
All right. So number (4) is a new subsection. Do you want to
comment on it?
Mr Gregory:
I'm not sure. The point of the amendment itself is to ensure that
we do not have a claim under this act that someone is in
possession of an electronic document and someone else has
possession of a paper document that is the same document.
Obviously that can't happen without somebody either being
negligent or dishonest. Nevertheless, to avoid a conflict, what
we're saying is that the electronic document will yield to a
paper original in the case of being pledged as collateral.
This is something the
bankers' association raised with us at the committee public
hearings, so we talked to them to follow up on that. Their
outside counsel was away the week we were doing the amendments,
so they came in when it was too late to get a change and said we
really shouldn't talk about possession of an electronic document
because that suggests holding it in a way that you don't hold it.
"Control" is the word generally used for electronic documents.
It's used in the United States legislation on the same subject.
It's one that financial institutions recognize in dealing with
electronic documents as security. It should say that control of
an electronic document does not constitute possession under the
PPSA. It's a technical amendment, but it's an improvement.
The
Vice-Chair: Will you read the amendment, as amended?
Mr
Martiniuk: I move that section 8 of the bill be amended
by adding the following subsection:
"Exception, Personal Property
Security Act
"(4) Despite subsection (1),
control of an electronic document does not constitute possession
of the original document for the purposes of the Personal
Property Security Act."
The
Vice-Chair: Do we have unanimous consent for this
amendment to go through? I see that there is unanimous
consent.
Shall the amendment carry?
Carried.
Shall section 8, as amended,
carry? Carried.
Section 9 has no amendments.
Any comments or debate on section 9? Seeing none, shall section 9
carry? Carried.
I understand there is a
government motion to amend section 10.
Mr
Martiniuk: Yes. I move that section 10 of the bill be
amended by adding the following subsection:
"Same
"(2) For greater certainty,
the following are examples of actions that constitute providing
electronic information or an electronic document to a person, if
section 6, 7 or 8 is otherwise complied with:
"1. Sending the electronic
information or electronic document to the person by electronic
mail.
"2. Displaying it to the
person in the course of a transaction that is being conducted
electronically."
The
Vice-Chair: Any comments or discussion on this
amendment? Seeing none, shall this amendment carry?
Mr Patten: I
have a question. There's always the sender's responsibility.
Presumably, if there is a dispute following and someone says, "I
didn't really receive the"-this is all subject, of course, to
confirmation, probably in print form, of the communication for
record purposes, is it not?
Mr Gregory:
Certainly sections 6, 7 and 8 deal with a case where if someone
is required to provide information-that might be in the form of
giving notice, sending notice, whatever-the person who has that
obligation is going to have to prove that they complied with it
if there's a dispute.
There's another section in
the act, later, that talks about presumptions of receipt of
electronic documents, but it's never more than a presumption.
Ultimately, if you want to be sure that the person has got it,
you'd better get an acknowledgement or something which can say,
"I can prove-"
Mr Patten: Confirmation that-
Mr Gregory:
Yes. It doesn't have to be in writing, but it's whatever you can
demonstrate to whoever has to decide your dispute.
The
Vice-Chair: Any further comments or discussion?
Shall the amendment carry?
Carried.
Shall section 10, as amended,
carry? Carried.
There is a government motion
to amend section 11.
Mr
Martiniuk: I move that section 11 of the bill be amended
by adding the following subsection:
"Seal
"(6) The document shall be
deemed to have been sealed if,
"(a) a legal requirement that
the document be signed is satisfied in accordance with subsection
(1), (3) or (4), as the case may be; and
"(b) the electronic document
and electronic signature meet the prescribed seal equivalency
requirements."
The
Vice-Chair: Mr Martiniuk moved the amendment. Any
comments or discussion? Seeing none, shall the amendment carry?
Carried.
Shall section 11, as amended,
carry? Carried.
There is a government motion
to amend section 12.
Mr
Martiniuk: I move that section 12 of the bill be amended
by adding the following subsection:
"Previously retained
electronic documents
"(3) A legal requirement
described in subsection (2) is satisfied despite non-compliance
with clause (2)(c) if the electronic document was retained before
the day this act came into force."
Interjection.
Mr
Martiniuk: "Comes"? I'm sorry. The Chair has corrected
me. The last four words should read "act comes into force."
1550
The
Vice-Chair: Any comments or discussion on this
amendment? Seeing none, shall the amendment carry? Carried.
Shall section 12, as amended,
carry? Carried.
Section 13 has no motions for
amendment. Any comments or discussion on section 13? Seeing none,
shall section 13 carry? Carried.
On sections 14 to 18, there
are no motions for amendment. Can we proceed with them together?
Is that OK, Mr Patten and Mr Martin?
Mr Patten:
Yes.
The
Vice-Chair: On sections 14 to 18, inclusive, there are
no amendments. Shall those sections carry? Carried.
Section 19: there is a
government motion to amend section 19.
Mr
Martiniuk: I move that section 19 of the bill be amended
by adding the following subsection:
"Legal recognition of
electronic contracts
"(3) A contract is not
invalid or unenforceable by reason only of being in electronic
form."
The
Vice-Chair: Are there any comments or discussion?
Mr Patten:
There were some exceptions identified at the beginning of the
bill in the preamble. This would still not apply to wills or
documents of that sort. Is that correct? This is only in
e-commerce; this is transactions.
Mr
Martiniuk: There are still other exceptions that are
specifically excluded from the act, are there not, Mr Gregory? I
think they're five in number, including bills of exchange.
Mr
Gregory: That's right. In section 26 and following, the
whole act doesn't apply, including this part. No, it's not
pushing it farther.
Mr Patten:
Fine.
The
Vice-Chair: Shall the amendment carry? Carried.
Shall section 19, as
amended, carry? Carried.
Section 20 has no
amendments filed. Any comments or discussion on section 20?
Seeing none, shall section 20 carry? Carried.
Section 21: there is a
government motion to amend section 21.
Mr
Martiniuk: I move that section 21 of the bill be amended
by striking out "has no legal effect" and substituting "is not
enforceable by the other person."
The
Vice-Chair: Mr Martiniuk moved the amendment of section
21. Is there any discussion to the amendment? No. Shall the
amendment carry? Carried.
Shall section 21, as
amended, carry? Carried.
Section 22: there are no
amendments filed for section 22. Any comments or discussion on
section 22? Seeing none, shall section 22 carry? Carried.
Section 23: again, there
are no motions to amend. Any comments or discussion on section
23? Seeing none, shall section 23 carry? Carried.
Section 24: there is a
government motion to amend.
Mr
Martiniuk: I move that subsections 24(1) and (2) of the
bill be struck out and the following substituted:
"Authority to prescribe,
approve or provide form
"(1) Authority to
prescribe, approve or provide a form includes authority to
prescribe, approve or provide an electronic form and to prescribe
requirements for its electronic signature.
"Authority to prescribe or
approve manner of submitting form
"(2) Authority to prescribe
or approve the manner of submitting a form includes authority to
prescribe or approve that it be submitted electronically."
The
Vice-Chair: Are there any comments with respect to this
amendment?
Mr Patten:
Can you elaborate on it, please?
Mr
Gregory: The purpose of the amendment was just to ensure
that wherever a form can be created, it can be created
electronically. The original text of the bill says "authority to
prescribe a form includes authority to prescribe...." It was
pointed out-in fact, we noticed internally after the bill had
been read-that there are a number of places where departments or
ministers or the government are empowered to approve a form
rather than prescribe it, or to provide a form, to hand it out to
the public. We wanted to make sure those can be done
electronically as well; it's not just where you need to make a regulation that you can
replace it. So there's no greater authority to make or provide
forms, just matching the authority to go electronic, the
authority to do it all, on paper.
The
Vice-Chair: Any other comments? Shall the amendment
carry? Carried.
Shall section 24, as
amended, carry? Carried.
Again, sections 25 to 30,
inclusive, have no motions for amendment filed. Can we again
proceed with those together?
Mr Clark:
Agreed.
The
Vice-Chair: All right. Shall section 25 to section 30,
inclusive, carry? Carried.
Section 31, there is a
government motion to amend.
Mr
Martiniuk: I move that paragraph 4 of subsection 31(1)
of the bill be struck out and the following substituted:
"4. Documents, including
agreements of purchase and sale, that create or transfer
interests in land and require registration to be effective
against third parties."
The
Vice-Chair: Are there any comments or discussions?
Mr Marcel Beaubien
(Lambton-Kent-Middlesex): As a layman, could you explain
to me what the difference is between the present 4 and this
4?
Mr
Gregory: In fact, this is put in to give greater comfort
to the laymen at the Ontario Real Estate Association who wrote
asking that it be clarified. They weren't sure whether documents
that create or transfer interest in land, which is the original
language, extended to agreements of purchase and sale. I think in
the legal view it would include them, but just so that their
members, the real estate agents who generally aren't lawyers,
know for sure, it's right there in their face that these are
covered, that when you are transferring land when you sign that
agreement of purchase of sale the real estate agent gives you,
that cannot be electronic. This is essentially put in to respond
to the request from that association.
Mr Clark:
I don't have a question about this amendment, but I do have a
question about another section in this clause, so if we can come
back to me?
The
Vice-Chair: All right. Any other comments on this
amendment? Seeing none, shall the amendment carry? Carried.
Mr Clark?
Mr Clark:
I wonder if I could have some clarification in section 31 on
paragraph 3. It talks about "Powers of attorney, to the extent
that they are in respect of an individual's financial affairs or
personal care." I'm not sure whether or not this would include
advance care directives under the Health Care Consent Act.
Mr
Gregory: It's intended to do that, sir. The power of
attorney in respect to personal care would be an advance health
care directive. The reason there is a limit-we didn't simply say
powers of attorney generally-is that there are powers of attorney
that are used in business reorganizations, for example, where one
person in a complex series of incorporations will have the power
of attorney to shuffle things around until all the documents are
done and in the right place, the way the reorganization is
supposed to end up.
1600
We thought that was not
something where the parties need protection. They can do that
electronically if they want. What we're trying to do with
paragraph 3 is to ensure that individuals don't do things
electronically when they may not know enough about what they're
doing to do it right, but certainly a power of attorney for
personal care is intended to cover an advance health care
directive, and I think it would. That's what it does.
The power of attorney is
not a term of ours in the sense that it's not limited by statute
to anyone in particular; it is the power for someone else to act
in a legally effective way for you. If I do that for my health
care, saying, "If something happens to me, this is what my
treatment to be," that's clearly a power of attorney, and
"personal care" is put in here just to make sure that it's
covered.
Mr Clark:
There's some controversy in that you hear from people saying that
an advance care directive is not a power of attorney. That's why
I'm concerned that the advance care directive is not identified.
There is controversy there. I'm not sure whether "power of
attorney," as it's worded here, would actually deal with an
advance care directive, and I don't think an advance care
directive should be excluded from this exemption.
Mr
Gregory: It's not intended to exclude them-
Mr Clark:
But potentially it could be, in an argument.
Mr
Gregory: I can't say that we would not face that
argument. Obviously people will make that argument. It seems to
me that argument would not succeed. If you've got an advance
health care directive and you have a statute referring to power
of attorney for personal care, it's very difficult to say that
it's something different. I'm not sure what the procedure would
be if there was something to include advance health care
directives. Certainly as a matter of policy there would be no
objection to putting that in, but I'm in the hands of the
committee as to how that would be put in. As I say, there's no
intention not to have them included in that paragraph. I don't
think it's going to be a problem, but if there were a problem
that the committee wanted to resolve, we could resolve it if
everyone wanted to.
Mr Patten:
Do we have legal counsel?
Mr Clark:
There's legislative counsel.
Mr
Martiniuk: Would legal counsel like to comment on the
point raised by Mr Clark?
Mr Clark:
Chair, I only raised the point because I know that Dr Willy
Malloy has been advocating something called a "Let Me Decide"
booklet. There's a form inside that patients can fill out and
it's an advance care directive. It's not identified as a power of
attorney. So there are advance care directives that are being
completed and they're not powers of attorney. I'm not sure
whether it fits in here.
The
Vice-Chair: I understand that, Mr Clark. I'm hoping
legal counsel will be able to advise us on that.
Ms Cornelia Schuh: I wasn't
familiar with that issue. I agree with Mr Gregory that if the
argument were to be made that advance care directives are covered
by the Electronic Commerce Act because they're not powers of
attorney, that's not an argument that would succeed. I think at
the end of the day a court would conclude that advance care
directives were really intended to fall under paragraph 3.
I wish I were more familiar
with the specifics of the advance care directive. I'd be
reluctant to give any kind of an opinion on it right here and now
without having had a chance to check a few things. But my
conclusion is that Mr Gregory is right, that an argument that an
advance care directive can be made electronically would fail.
Mr Patten:
Another way to put it would be that it would be subject to any
powers of attorney; in other words, powers of attorney would take
precedence. Is that what you're saying?
Ms Schuh:
No. I'm saying that I think the court would read paragraph 3 as
including advance care directives and say, "No, the Legislature
did not mean to say that advance care directives can be made
electronically even though powers of attorney in respect of
personal care cannot."
Mr Patten:
What would happen if we included that term in this amendment?
Ms Schuh:
Well-
Mr Clark:
Can I ask you a question? What's the difference between a living
will and a power of attorney?
Mr Patten:
A will is yours. A power of attorney is someone else's.
Ms Schuh:
I don't think "living will" is a term that has a precise meaning.
A power of attorney for personal care might be something that
people could call a living will, depending on what's in it; so
might an advance care directive.
Mr Martin:
I was just wondering, in terms of this whole advance care
directive, has there been a circumstance where that has been
brought before the courts to determine whether power of attorney
supersedes advance care directive, if there's an argument?
Somebody may have a power of attorney signed and then come along
and put in place an advance care directive that seems to be
relatively new here. Are there precedents here now?
Mr Clark:
Personally, I'm not aware of any precedents but I can see that
there can be potential for it. You could end up having a power of
attorney in one situation that was crafted with a family and then
later on the person involved decides to take out an advance care
directive with their physician. The two can be distinctly
different.
Mr Martin:
And be in conflict.
Mr Clark:
Not necessarily, because the power of attorney could be around
finances and not around personal care. That's why I raise the
issue. They can be two distinctly different things.
Mr
Gregory: That's why the act refers to two different
things, of course, in respect of an individual's financial
affairs or personal care. But what you call them is less
important than what they do. What they do is, they appoint
someone else to make decisions for you when you're unable to do
that. I can give a power of attorney for financial affairs simply
because I'm out of the country and say, "Take care of my
investments while I'm incommunicado." For personal care, of
course, I have to be in the jurisdiction but I may well be
incapable temporarily or permanently of dealing with that.
Mr Clark:
That was my next point. Go ahead, Richard.
Mr
Gregory: If you make two documents which are
inconsistent, then that's going to be the same as making any
other two documents that are inconsistent: the court is going to
have to figure out which one gets complied with. It would usually
be the later one, but there may be reasons why that's otherwise.
But if I make a document saying my wife makes the decisions
whether to pull the plug and then I make a later one saying my
doctor gets to make that decision, then they're going to have to
fight it out. I can't predict the outcome of that one in
theory.
Mr Martin:
Right now it seems to me that most people understand what a power
of attorney is. This is the first time I've heard of advance care
directives. I don't know what position we are in here, as
relative lay folk in front of some very legal considerations, to
begin to decide whether advance care directives should be in a
piece of legislation that we're trying to put through the House.
It worries me that we would do something that we could later
regret. Otherwise, I have no difficulty. But I do have some
difficulty if that's what it does.
Mr Clark:
The other point that Richard and I kind of simultaneously thought
of is substitute decision-makers under the Health Care Consent
Act. For example, with Brian's Law we're moving forward with our
amendments to the Mental Health Act, and substitute
decision-makers go through the Consent and Capacity Board. The
question is, do they fall under this also?
1610
The
Vice-Chair: Mr Gregory, if I may just try to assist
here: would paragraph 6 that talks about documents that are
prescribed or belong to a prescribed class be something that the
minister would, under regulations, deal with as these things come
up?
Mr
Gregory: I think that is exactly the kind of safety
valve provision that we were using paragraph 6 for. Paragraph 6
is there not because we have a list of things we secretly want to
do that we will spring on the world by regulation once the act is
passed; it was really to say, "Oops, we forgot something. We
don't have to reconvene the Legislature to exempt it." If there
came a case where advance care directives were being made
electronically, and someone decided relatively authoritatively
that no, they are not powers of attorney-as I say, that's not my
view, because they are-but if they weren't, it would be easy
enough to make a regulation, when there's a problem, to say
they're also excluded. The intent is that they should be excluded
and if it ever came up, then we could exclude them. I don't think
it's necessary to amend paragraph 3 at this point. We can use
paragraph 6 if there is
a problem. There's no intent to have people making those
electronically without a lot more safeguards than this bill
provides.
The
Vice-Chair: My understanding of a lot of these advance
care directives and so on is that they are things that usually
are done, but we didn't-for example, the power of attorney for
incapacity has a certain definition under the Substitute
Decisions Act which gives them exactly all the powers under the
act and gives certain guidelines under which the attorney can act
and so on. All the other things like "advance care directives"
and "living will" are expressions that often are used by lay
people but they're not really defined under any statute.
A living will, like counsel
said, could be a Substitute Decisions Act power of attorney
because you could specify certain things. But it's not a living
will, because you're giving power to somebody else to act on your
behalf. But often people use it as an expression for a living
will.
Mr Clark:
All I'm saying is, I'm raising the issue that under the Health
Care Consent Act, the living will and advance care directives are
real entities that exist today. Quite literally, if Dr Malloy or
any other doctor out there who wants to be an entrepreneur begins
to sell living wills or advance care directives on the Internet,
this is why you should have it: here's the form, fill out the
form, send it in, we'll do our end and it's done. I'm not sure if
it's identified here. I raise the caveat because it is a
potential.
The
Vice-Chair: Are you satisfied with paragraph 6?
Mr Clark:
I've raised my caveat.
The
Vice-Chair: OK. Any other comments on this? I guess the
ministry will take that into account.
Mr Martin:
How about giving direction to the ministry to take a look at this
to make sure that if there's a problem there, it's caught and
covered.
The
Vice-Chair: Under regulation.
Mr
Gregory: Sure. As I say, the policy intent is definitely
that they should be covered. If there's a risk that they are not,
we can make a regulation once the act is in force to have that
covered and have that in health care directives or living wills.
As I say, I don't think "living will" means anything in law. We
can designate them just to throw a blanket over the whole area if
necessary.
Mr Clark:
Along with that direction, then, I'd suggest that they talk to
Ministry of Health lawyers to find out exactly what is involved
and what that does mean so that the regulation can be properly
worded.
The
Vice-Chair: Any other comments on section 31?
Mr Patten:
So are we going to pull this or stand this one down?
The
Vice-Chair: No. Not unless-
Mr Clark:
They want to fix it under regulations.
The
Vice-Chair: I think the ministry has been alerted to it
and they will take it into consideration under regulations if
they feel that they need to.
Mr
Gregory: I would certainly be happy to consult with
Ministry of Health lawyers on that one and make sure they're
comfortable with this or, if they're not, that we make a
regulation accordingly.
Mr Patten:
I don't want to stand in the way of anything, but I think Brad
has brought up a good point. The spirit of this we obviously
disagree with is not a problem. But I'd feel more confident with
some reaction from the ministry, having raised that. I don't know
how urgent this is. My suggestion is we could still get it
through very quickly, but if we had an opinion back quickly, we
could pass everything else subject to this one, and away we
go.
The
Vice-Chair: Mr Martiniuk, I guess it's for you to
respond to that.
Mr
Martiniuk: I agree, and I will go on record that the
ministry has received a recommendation, I think unanimously, from
this committee that they will consult with the Ministry of Health
solicitors to determine if there is any possibility of an
ambiguity in regard that section. If there is, that ministry
would consider a regulation that would specifically exempt if
they saw fit. I think that's sufficient protection, surely,
rather than holding up the bill. That's the very reason paragraph
6 is in there, "Documents that are prescribed or belong to a
prescribed class," as I understand it.
Mr Patten:
Sometimes these things have a way of coming back and biting
you.
Mr
Martiniuk: I'm going on record. That's as much as I can
do, Mr Patten. It's on the record.
The
Vice-Chair: Any other comments on section 31?
Shall section 31, as
amended, carry? Carried.
Mr Patten:
One dissenting vote.
The
Vice-Chair: Would you like to call for a recorded
vote?
Mr
Martiniuk: I'll consent to a recorded vote.
AYES
Beaubien, Elliott, Martin,
Martiniuk.
NAYS
Patten.
The
Vice-Chair: Carried.
Mr Patten:
Just out of respect for my colleague.
Mr Clark:
Thank you.
The
Vice-Chair: Section 32 has a government amendment to
it.
Mr
Martiniuk: I move that clause 32(c) of the bill be
struck out and the following substituted:
"(c) prescribe documents or
classes of documents, requirements as to method for electronic
signatures and information technology standards for the purposes
of subsection 11(4);
"(c.1) prescribe seal
equivalency requirements for electronic signatures for the
purposes of subsection 11(6)."
The
Vice-Chair: Any comments or discussion on the
amendment?
Mr Patten: Subsection 11(6).
Mr Clark:
It's one of the amendments.
Mr Patten:
I just want to see what it is.
Mr
Martiniuk: Actually, I had a question of Mr Gregory. The
seal provision is cherished and antiquated anachronism. I'm
curious as to how we would derive an equivalent
electronically.
Mr
Gregory: One of the reasons we are providing the
regulation-making power is because the more you look at seals,
the more different things they tend to do. Sometimes it's to show
that you're taking it seriously if you put one of those little
red sticky things on real estate. It says, "Hey, this is serious.
This has legal effect." On the other hand, sometimes the seal is
to authenticate the source. If you get something sealed from a
public official, you say, "Wow, this is the official record."
Interjection.
Mr
Gregory: Sure. There are other kinds of seals that
replace consideration in a contract. There are different seals
for different purposes and one size doesn't fit all essentially.
What we're saying is, rather than trying to do something between
committee and now, we may be able to find equivalents for some
parts of it. The suggestion that was made at the committee, for
example, was to recite in the document "signed intending this to
be under seal." If you sign that electronically, that will be
deemed to be under seal. That's probably fine for taking it
seriously, "All right, there it is," but it's not fine for
showing the source. We said, "Well, gee, you could do one, but
you can't do the other. We'd better just handle this a lot more
cautiously."
Mr
Martiniuk: Thank you.
The
Vice-Chair: Any other comments?
Shall the amendment carry?
Carried.
Shall section 32, as
amended, carry? Carried.
Section 33: there are no
amendments. Are there any comments or discussion on section
33?
Seeing none, shall section
33 carry? Carried.
Section 34: again there are
no amendments. Any comments or discussion?
Seeing none, shall section
34 carry? Carried.
Shall the long title of the
bill carry? Carried.
Shall Bill 88, as amended,
carry? Carried.
Shall I report the bill, as
amended, to the House? Carried.
Unless there is any other
business for the committee, we shall adjourn.
