31st Parliament, 1st Session

L037 - Tue 1 Nov 1977 / Mar 1er nov 1977

The House met at 2 p.m.




Hon. Mrs. Scrivener: Mr. Speaker, later this afternoon I shall introduce a bill to amend the Corporations Tax Act, 1972. This bill will represent a major step forward in the government’s tax simplification program.

For several years now, the government of Ontario has been committed to a program of tax simplification, and of course my ministry has been heavily involved. I would like to take this opportunity to recommit my ministry to the objective of tax simplification. At the same time, I would stress that tax simplification is a meaningless exercise without the service and accessibility such an undertaking requires.

However, Mr. Speaker, by its very nature tax simplification is a slow and deliberate process. Thus, I think it is essential that an appropriate balance be struck between the equity of the existing tax policy and the need to make that policy understandable.

The bill I will introduce this afternoon will significantly simplify the administration of and compliance with the Corporations Tax Act of Ontario. This bill will not represent a change in the government’s tax policy, but it will embody a significant change in the application of that policy.

As this House is aware, the Ontario Corporations Tax Act closely follows the Income Tax Act of Canada. The exceptions relate to matters concerning the tax policy of the Ontario government.

Since 1972, there have been at least five major amendment bills by the federal government to the Income Tax Act. Even though Ontario paralleled more than 95 per cent of these changes as they applied to corporations, it has still been necessary for Ontario to produce large amendment bills to give effect to the numerous amendments at the federal level. To put it another way, under the current Corporations Tax Act, Ontario must amend its legislation in order to parallel federal changes. Deviations occur unless preventive action is taken.

Since 1973, this House has approved more than 1,000 amendments to the Corporations Tax Act, most of which were required to parallel federal changes. Taxpayers have had to keep abreast of all these changes and interpret the intricate detail of two statutes. The proposed bill will contain provisions to correct this situation; thus, in the future Ontario will automatically tie in to the Income Tax Act of Canada, unless we choose to differ.

The purpose of the bill is threefold: First, to provide tax simplification by bringing the Ontario Corporations Tax Act more closely into harmony with the Income Tax Act of Canada; second, to provide the tax incentives required for investors in venture investment corporations; and third, to provide some administrative amendments including changes to the appeal procedure to make it fairer and more flexible. The end result will be a reduction in bulk in the statute, and an increased comprehension of the statute. Consequently, I think a significant increase in ease of compliance for taxpayers will follow.

In March of this year, I decided that there could be significant benefits if some regular forum were established to provide the ministry with access to private sector expertise. Similarly, taxpayers not only could have access to our thinking, but also could have the opportunity to comment before decisions were reached. Accordingly, I invited several organizations to participate in this forum.

I am pleased to be able to introduce to the Legislature the members of the tax advisory committee who have provided valuable assistance in the design of a simplified corporations tax. These four groups and their representatives are: First, the Institute of Chartered Accountants of Ontario, represented by Mr. Larry Eddy; second, the Ontario chapter of the Canadian Bar Association, represented by Mr. Robert Lindsay; third, the Canadian Federation of Independent Business, represented by Mr. Irving Rosen; and, finally, the Tax Executives Institute, represented by Mr. David Craig.

I would like to take this opportunity to publicly thank the members of the committee for their effort and for their valuable contribution, and I look forward to receiving comment on this bill from all interested parties. I would like to have them recognized at this point, Mr. Speaker; I wonder if they would stand please. Mr. Lindsay could not be with us today.

This bill will represent the first large-scale simplification of any tax Act conducted by any jurisdiction in Canada. Although it is a significant achievement in the area of tax simplification, it is also flexible enough to avoid compromising the government’s ability to implement new tax policies in the future as they are required.

The bill represents neither a change in revenues nor a change in policy. It does represent hard evidence that we are aware of the potentially onerous impact of public administration upon the private sector.

Taxpayers and their advisers will benefit in several ways. First, there is certainty. Taxpayers will know that where the Ontario Act is intended to be the same as the Income Tax Act, it will be exactly the same. Second, all intended differences between provincial and federal law will be highlighted. Third, the number of legislative amendments required will be drastically reduced. I think that all members will agree with the purpose of this bill and will wish to support it during its detailed review later this month.


Hon. F. S. Miller: Mr. Speaker, two months ago I announced that drilling crews from Onakawana Development Limited were at work at Onakawana in northeastern Ontario, in the final stage of an extensive exploration project to determine the economic feasibility of extracting lignite from coal deposits there. I mentioned at that time that there are some 190 million tons of recoverable lignite at Onakawana which represent a significant but undeveloped potential energy source native to the province of Ontario. I also mentioned that if the exploration work then taking place should establish that economic extraction is possible, the deposit would be a valuable asset in terms of dollars, jobs and energy.

I would like today to inform the members that the Ministry of Natural Resources is this week hosting a series of open-house public meetings in northeastern Ontario at which the local people and other interested members of the public have been invited to participate in an information exchange on the proposed development of the Onakawana lignite resource by Onakawana Development Limited and to provide us with their views, concerns and suggestions.

We want to make sure that from the outset the public is provided with all the facts about the proposed development. We see these public meetings as an integral step in the process of assessing the project before the company carries out further engineering and environmental studies.

The open-house meetings will be held at Moosonee. Cochrane and Timmins. The Moosonee meeting will be held tonight, the meetings in Cochrane and Timmins on Thursday and Friday respectively. The meetings have been widely publicized in northeastern Ontario and notification of them has also been carried in the Toronto press.

It is our understanding that a wide cross-section of local people intend to take part in the sessions, which is most encouraging to us. The results of the open-house meetings will assist the Ontario government in making decisions as to how the lignite resources at Onakawana should he developed.

I would also like to advise the members that it is the intention of the Ontario government to place the proposed Onakawana development under the Environmental Assessment Act. This is consistent with the recommendation of Task Force Onakawana in 1972, and the company itself has indicated a desire to ensure that any development of the lignite deposits would be carried out under environmentally-acceptable conditions.

It is our hope that all interested members of the public will take this opportunity to join with us in planning the development of Ontario’s coal resources.



Mr. S. Smith: A question to the Premier, Mr. Speaker. Referring to material that was tabled by the Minister of Energy (Mr. Taylor) in the House last Thursday, and more particularly to a memorandum from the chairman of Hydro to the minister in which he says that, “The chairman told me there was a possibility it would be much better if none of the information were given to Dr. Smith, but was left to come out in a public inquiry,” will the Premier now say if the government is or is not prepared to have such an inquiry by a committee of this Legislature, and if he is prepared to do so, when will he present the appropriate motion to the Legislature, and is he prepared to consult with opposition parties on this matter?

Hon. Mr. Davis: Mr. Speaker, I can’t comment on the particular letter itself, because I haven’t read the letter. I understand there have been discussions among the House leaders as to the appointment of a committee to deal with certain matters related to Hydro. I think that as those discussions continue and we firm up just what items or matters should be discussed and in what order, this is certainly one that can be considered.

But I think my best recollection is that there are some other matters; I think there was some discussion on the question of the monitoring and on one or two others, nuclear energy, et cetera, that would be part of this committee’s responsibility. So, I expect the House leaders will be continuing to discuss this and we will arrive at a reasonable and logical way to approach it.


Mr. S. Smith: By way of supplementary, and with great respect, given the fact that the House leaders have been talking about this for three or four weeks now and that we’re consistently given assurances there will be some kind of further negotiation, can the Premier simply state for this House that the kind of information we need from Hydro will come before that committee, that the committee will be struck immediately and that the committee will decide for itself the terms of reference and when it wishes to obtain this information from Hydro?

Hon. Mr. Davis: I’m sure the Leader of the Opposition would want to follow what I think is a fairly reasonable approach that we have developed and which has been supported, by and large, by his party. That is that we would have general terms of reference, voted upon by members of this House, to give the committee some guidance. I don’t think the Leader of the Opposition would want it to be any other way.

Mr. S. Smith: I rise on a brief supplementary, Mr. Speaker. Can the Premier simply guarantee that this is going to come forward within the next week, because we’ve already been waiting about a month for this matter to be dealt with?

Hon. Mr. Davis: I’m not sure that I agree that we’ve been waiting for a month for this matter to be dealt with. I haven’t been privy to the discussions between the House leaders; they’ve had a number of matters to resolve. We’re in the process of working out certain terms of reference for what I think is a priority matter as far as this government is concerned and that is the reference to the standing committee on Natural Resources of Inco and the issues that have been raised by that situation. I hope to have something for the House on Thursday.

And with great respect, Mr. Speaker -- in that we’re both being very respectful today, the Leader of the Opposition and myself -- we will move ahead with it. There are a number of other responsibilities. There are certain conflicts in terms of timetabling, in terms of certain members having to discharge those responsibilities. But I can assure the hon. Leader of the Opposition, yes, we will have a committee and I expect we will deal with it, I can’t say within the next three or four days, but we will deal with it shortly.

Mr. S. Smith: I thank the Premier for his answer. I will look forward to hearing from him.


Mr. S. Smith: I have a question of the Minister of Labour; this has to do with the fact that the National Institute for Occupational Safety and Health in the United States has recommended, as she may know, a new standard for exposure to the cancer-causing agent, benzine, in the work place. Is the minister aware that they have now adopted a one part per million standard and that the occupational health and safety administration branch issued an emergency temporary standard of one part per million in May 1977? Will our present standard of 10 parts per million be lowered to the standard of one per million?

Hon. B. Stephenson: Mr. Speaker, it’s my understanding that we’ve already accommodated that recommendation of NIOSH.

Mr. S. Smith: By way of a supplementary: Do I take it then that in Ontario there is now a standard of one part per million of benzine in the work place and, if so, can the minister explain whether plants where benzine is being used in this province are presently being monitored? Can she table in this House the reports and the findings of such monitoring procedures?

Hon. B. Stephenson: Yes, I shall attempt to do so.

Mr. Lewis: I have a supplementary, if I may: Is the minister saying that when the regulations embodying the standards for seven particularly hazardous substances under the new Occupational Health Act are tabled, one of them being benzine, it will be at the level of one part per million?

Hon. B. Stephenson: That is my understanding.


Mr. Lewis: I’d like to put a question to the Attorney General if I may. Could I ask him, on behalf of the democratic process generally, and on behalf of this party in particular, to seek from the federal government, from the Minister of Justice and the Solicitor General, an understanding of, or particulars about the investigation which was launched by the RCMP, so it is alleged, into the activities of members of the New Democratic Party in the years 1971-73 in the province of Ontario?

Hon. Mr. McMurtry: Mr. Speaker, yes, I am quite prepared to make such a request to the Minister of Justice and the federal Solicitor General.

Mr. Lewis: Without putting an undue trust in the judgement of the Attorney General --

Hon. Mr. McMurtry: Just as a matter of clarification, Mr. Speaker, I assume the leader of the NDP is talking about New Democratic Party members of this Legislature?

Mr. Lewis: No. Well, it may be, one never knows.

Hon. Mr. McMurtry: The New Democratic Party in Ontario?

Mr. Lewis: Yes. By way of supplementary, would it be possible, given what we consider and obviously others consider to be extremely disturbing allegations attributed to the RCMP of investigating the activities of various members or factions in well-constituted political parties in this country, the NDP in Ontario at the time, can I ask the Attorney General to demand the information, to peruse it carefully, to make some kind of report to the Ontario Legislature and then to allow us to see whether it might be taken further, say, to the extent of a request for a commission of inquiry?

Mr. Conway: You don’t mean the Waffle, do you?

Mr. Lewis: I suspect it went further than that.

Hon. Mr. McMurtry: My answer, Mr. Speaker, is yes.


Mr. Lewis: May I ask the Solicitor General a question? Could he indicate to the House whether the Ontario Provincial Police has, in the pursuit of its duties or felt obligations, looked into activities of people associated with native peoples’ groups or with some of the activist groups in relation to native peoples’ organizations and movements and if so, on what basis and if so, what was the purpose?

Hon. Mr. MacBeth: In the interests of security they keep an eye -- and I think I have been asked that question before and used these words before -- they keep an eye on a variety of groups. But the member has asked for some specific detail and I will certainly get that detail to the member.

Mr. Lewis: By way of supplementary: I assume the Solicitor General’s answer will embody whatever the measure of security it is he thinks should apply, but since he has now said there are such groups looked at by the OPP, could he at least name the groups in his reply? I assume that wouldn’t violate any security.

Hon. Mr. MacBeth: I don’t have all of the details now and rather than guess at names and get some of them incorrect, I would rather check the information first, sir.


Mr. Stong: I have a question for the Attorney General. Yesterday in answer to a question by my colleague, the Leader of the Opposition, concerning the Praxis break-in the minister categorically denied the involvement of the police. I quote from Instant Hansard wherein he said:

“ ... I can state quite emphatically, Mr. Speaker, that on the ‘basis of the interim report that I have received, there is no evidence whatsoever of any police involvement of any police force, RCMP, Metro Toronto police department or any other police department in this break-in, no evidence whatsoever.”

Could the Attorney General tell us what the terms of reference were for the OPC’s investigation into the Praxis matter and will he tell this House whether allegations concerning the receipt of stolen material by the police were considered by the OPC and if so, what their conclusions were?

Hon. Mr. McMurtry: First, Mr. Speaker, I indicated to the Legislature yesterday that I did not have a complete report. I made it quite clear that was the information I had up to the time of the break-in and the absence of any police involvement. I indicated that there was some further investigation ongoing in relation to any documents that had been stolen and that I was still waiting a report from the OPC in that context.

The hon. member may recall that this investigation was requested as the result of a letter that I received from the federal Solicitor General indicating to me that a member of the Parliament of Canada had given him certain information or made certain allegations, or perhaps he was simply passing on certain allegations that had been made -- and I think that’s a more accurate way to describe it -- that would indicate that certain members of police forces in Ontario, including Metropolitan Toronto, may have been involved in the break-in. As I recall the history of this matter, that is what prompted me to make this request for an investigation by the Ontario Police Commission.

Mr. Stong: Supplementary: There may not have been a police officer involved, but would the Attorney General assure this House that no agent working for the police was involved, and would he supply us with the terms of reference of this investigation by the OPC?

Hon. Mr. McMurtry: At this point in time I don’t have a copy of the letter that I wrote to the OPC and I don’t recall the nature of the contents, but I can assure the member that I would be quite prepared to advise the House as to the terms of reference in that respect.

Certainly, when I am talking about police involvement, if it came to our attention that someone retained or used by the police as an agent was involved at the request of or motivated by the police to participate in this break-in, that to me would mean police involvement.

Mr. Stong: A further supplementary: Would he assure this House that the police were not passively acquiescent in any alleged breaking of the Criminal Code by receiving the stolen goods and not taking any investigative steps?

Hon. Mr. McMurtry: I must admit I have some difficulty in understanding that last question.

Mr. Stong: I can repeat the question.

Hon. Mr McMurtry: I don’t think it would help me for the member to repeat it.

Mr. Stong: I want to make sure the minister understands it.

Hon. Mr. McMurtry: I hope the member understands the question.

Mr. Stong: I understand the question. Will the minister guarantee that the police were not passively acquiescent in receiving stolen property?

Mr. Sargent: Were they in bed with them?

Mr. Roy: Supplementary, Mr. Speaker --

Mr. Wiseman: Welcome back, Albert.

Mr. Speaker: How can there be a supplementary to a non-answer?

Ms. Gigantes: You let me have one the other day.

Mr. Speaker: Try it.

Mr. Roy: Thank you, Mr. Speaker. I would like to ask the Attorney General, if I may, when he talks about no involvement on the part of the police; undoubtedly he is aware that to receive stolen documents is an offence. Can he assure this House that, in fact, the police did not break the law by receiving stolen material?

Hon. Mr. McMurtry: Mr. Speaker, in the absence of the member for Ottawa East yesterday, and the day before --

Mr. Roy: I have been here often when you are not.

Hon. Mr. McMurtry: -- I indicated that did not have any final report at the present time in relation to what occurred to the documents after the break-in, so I can give no assurance one way or the other to the members of this Legislature until we have some final report.

Mr. S. Smith: By way of supplementary. is it not a fact that the Attorney General has an interim report, and can he assure the House that the interim report gives no such indication that there might have been the receipt of stolen goods by somebody on behalf of the police.

Hon. Mr. McMurtry: There is nothing to add to the answers that I have already given to this matter.

Mr. S. Smith: No assurance?


Mr. Deans: I have a question for the Minister of the Environment. Can the minister indicate where the liquid industrial waste that is currently being dumped at the Ottawa Street dump in the city of Hamilton will be disposed of after the dump is closed in the very near future?

Hon. Mr. Kerr: Mr. Speaker, as the hon. member knows, the region is attempting to establish a sanitary landfill site in Glanbrook I would assume that if the Ottawa Street site is closed to industrial liquid waste, it will have to find another site.


Mr. Deans: I assume that, too. The question I’m asking the minister is: Where will they be dumping it after the dump is closed?

Hon. Mr. Kerr: There are around five million gallons a year, I guess, or something like that -- not quite that much; somewhere in between. We’ll know better after our waybill system is in operation a little longer.

But in any event, much of this is now being solidified by way of a fixation process being carried out at the Ottawa Street dump at the present time. We’re hoping that once this experiment has been completed, there will be fewer problems in the applicant finding another site to dispose of industrial liquid waste which would be subject to this type of solidification.

Also, when the site is closed, it’s quite possible that the process will be used to close the Ottawa Street site; in other words, by way of a cover. This is a rock-like material that results from the solidification which can be used to cover the existing site and then hopefully another location will be found.

Mr. Deans: One final supplementary, if I may. Since the minister obviously agrees that it cannot go to Glanbrook -- they don’t want the dump anyway -- and since the Ottawa Street dump is intended to be closed in the very near future, and since there is no application for an alternative site, and since the process the minister talks about has not yet been finalized or approved, what are they going to do in the meantime?

Hon. Mr. Kerr: First of all we still have to have a hearing for the Glanbrook site, so I wouldn’t assume that the Ottawa Street site will be closed much before next year, or certainly this time next year.

The certificate that has been issued to the company now carrying out this experiment will expire next June. Sometime between now and then they will make application for another location to carry out this experiment and for permanent disposal of industrial liquid waste.

Mr. Deans: Will that require a hearing?

Hon. Mr. Kerr: Yes.


Mr. Reid: I have a question for the Provincial Secretary for Social Development in regard to Ontario’s immigration policy. Can the minister tell the House what policy guidelines Ontario has in regard to immigration to the province, in view of the fact that the majority of immigrants still come to the province of Ontario, and what input she had into Bill C-24 and the regulations under that Act?

Hon. Mrs. Birch: Mr. Speaker, we are still awaiting the regulations that will be in the new Immigration Act. We have had opportunity for several meetings with Mr. Andras and latterly, Mr. Cullen. There has been no direction yet as to the mechanism that will he established for ongoing consultation with the provinces and with the federal government.

The Act has not been proclaimed as yet, but we expect that that will happen momentarily.

Mr. Reid: Supplementary: Because Ontario has the jurisdiction under the British North America Act, and Quebec, in fact, has taken a very strong role in immigration policy, has the minister indicated to the federal government that the government of Ontario wants only people from certain areas of the world with certain skills, and that, in fact, these people must be directed to particular areas in the province of Ontario?

Can she share with the House the suggestions she’s made to the federal government in this regard?

Hon. Mrs. Birch: There has been no discussion at this point in time of that kind of direction from the provincial government to the federal authorities.

Mr. Reid: We have no policy with regard to immigration in Ontario?

Hon. Mrs. Birch: Right.


Mr. Samis: May I ask the Minister of Natural Resources what he is doing to protect the rights of Ontario hunters in the St. Lawrence River between Gananoque and the Quebec border, where, as he’s familiar, they’re obliged -- at gunpoint -- to pay licence fees from the Indians’ St. Regis reserve, as well as the government of Ontario, in waters marked by his ministry as belonging to the province of Ontario.

Hon. F. S. Miller: There are probably a couple of problems in that particular area. One is: Where does Ontario end and Quebec begin? That has been in dispute for some time. The second is: Where does the St. Regis band have jurisdiction? I understand in the case of Indian bands, and this particular Indian band, charging a fee to hunt on what they consider to be their own reserve, that we have not entered into the argument. We believe that to be a federal matter. We are waiting for a clarification of the actual boundaries before we take any action.

As far as the Quebec-Ontario boundary is concerned, that has been an ongoing dispute for some time and I really don’t have a mechanism at my disposal to prevent some of the Quebec enforcement officers from coming out and claiming one is fishing in Quebec. I think one just simply needs to be a bit cautious when out fishing there because, as the member knows, one doesn’t need a licence on our side of the border, but does on theirs.

Mr. Samis: Supplementary, Mr. Speaker -- and I point out to the minister the question doesn’t refer to Quebec. Would the minister discuss with the Attorney General and the Solicitor General what measures are being undertaken, I reiterate, to protect the rights of Ontario citizens in Ontario waters so they don’t have to pay double and so they can exercise their constitutional rights and in view of the fact that no claim has been filed with the federal Ministry of Indian and Northern Affairs as to this new jurisdiction being claimed?

Hon. F. S. Miller: Certainly we are not going to request an Ontario citizen to pay two licences if he is hunting on land that is not part of an Indian reservation.

Mr. Samis: I think the minister misunderstood the question, Mr. Speaker. I am asking about people who are being forced to pay -- to the band obviously -- in waters and territory recognized by his ministry and the ministry maps as Ontario waters and Ontario land, and not part of the St. Regis reserve.

Hon. F. S. Miller: The problem is that it isn’t recognized by the Indians as not being part of the St. Regis reserve and that is the thing we are trying to clarify.

Mr. Roy: Supplementary: Is the minister saying really that after 35 years of Tory rule in this province they haven’t even determined the boundaries of the province yet?

Hon. F. S. Miller: I would suspect one might say after many years of Grit rule in Ottawa they haven’t figured out where the boundaries are yet.

Mr. MacDonald: Do you both feel better now?

Mr. Lewis: That’s one thing we could do, Mr. Speaker, without public ownership.


Mr. Eakins: A question of the Minister of Industry and Tourism: Today marks the first meeting of the minister’s advisory committee on small business. Will this meeting be open or closed?

Hon. Mr. Bennett: The initial meeting will be closed, to introduce the members --

Mr. Stong: Why?

Some hon. members: Why?

Hon. Mr. Bennett: Just wait until I finish answering the question. I never heard such a group that asked questions and then wanted to answer them themselves. I’ll tell them a hell of a great deal more intelligence is going to come from this side than from that side.

The reason, obviously, will be to introduce the members from various parts of the province of Ontario and to describe to them very clearly the terms of reference, and then set them on their course. I have no doubts as time proceeds down the road we will have meetings by the small business advisory committee.

Mr. S. Smith: Why does that have to be closed? What is so secretive about it?

Hon. Mr. Bennett: The intelligence coming from that side this afternoon is nil, so why don’t the members opposite sit and be quiet for a moment?

We will then travel throughout the province and have an opportunity of meeting with various people in small business.

Mr. Eakins: Supplementary: Would the minister consider in the future a format of a meeting similar to the PMLC and would he consider the inclusion of the opposition critics on the committee?

Hon. Mr. Bennett: Obviously, Mr. Speaker, the racket being raised by the opposition caused my answer to be unobserved by the member. I said that this committee will travel, likely throughout the province, where the members of the third party and people in the business community will have a chance to present their position, their cases and their observations in relationship to legislation and other programs of this House.

Mr. Breithaupt: Once the course has been decided.


Mr. Foulds: A question of the Minister of Labour: What steps is the minister willing to take as guardian of the Human Rights Commission to prevent the kind of apparently vindictive action taken by the Ontario Minor Hockey League Association in withholding the coaching card of Barry Webb of Huntsville, apparently because he testified at a Human Rights Commission hearing on the behalf of Gail Cummings, a 10-year-old girl who wished to play hockey?

Hon. B. Stephenson: In difficult situations such as this one apparently has become, the staff of the Human Rights Commission does its best to conciliate the problem between the two partners or the two parties to the problem. That is precisely the role which they will be attempting to fill in trying to resolve an action which I would think on the surface would appear to be patently unfair.

Mr. Foulds: Supplementary: Doesn’t the minister think that there is an important point of principle that must be established publicly by the Legislature -- that a person who testifies before a Human Rights Commission inquiry cannot therefore be punished for that testimony? And isn’t she afraid that if this is not resolved quickly and publicly that intimidation of this kind will prevent witnesses from testifying at Human Rights Commission inquiries and therefore nullify the power and the effectiveness of the Human Rights Commission?

Hon. B. Stephenson: No, Mr. Speaker, I am not quite so cynical I suppose about the motives and the directions which the citizens of this province will follow. I believe that those who are specifically concerned, who feel that they must assist in bearing the burden of enhancing the role of human rights will come forward in any case. I would hope that the response to this specific action will not become general and we shall certainly do our best to increase our educational programs to ensure that it does not become general. But I firmly believe that most of the people in this province would not act in that kind of apparently vindictive way.

Mr. Lewis: It won’t get him back his job.


Mr. Leluk: I have a question of the Attorney General. In May of this year the drug magazine, High Times, was not permitted entry into Ontario by Canada Customs because of its questionable content. Since this magazine is now being printed and distributed in Ontario and in Canada, has the minister’s legal staff had the opportunity to assess its contents and do these contents, in fact, contravene section 422(a) or any other section of the Criminal Code of Canada? The second part of my question: It is my understanding that this matter came up for discussion last week at the meeting of the Attorneys General in Charlottetown. Would the minister inform this House as to the outcome of those deliberations?

Hon. Mr. McMurtry: Mr. Speaker, as the hon. member mentioned, the federal authorities took steps to prevent the admission into Canada of this magazine, known as High Times. Since that particular time, apparently, they have moved their publishing operation to Ontario and I understand that the police authorities have not yet been able to learn just where this magazine is being printed.

The Premier of Prince Edward Island, who is also the Attorney General of that province, brought up the issue of the matter of High Times at the Attorneys General conference in Charlottetown last week because of his concern. It was generally agreed that under the present provisions of the Criminal Code a successful prosecution might be difficult.

There is some issue as to whether, for example, it might be prosecuted under the counselling sections of the Criminal Code, but again, there is some doubt expressed as to the likelihood of a successful prosecution of this magazine which seems to be directed mostly to encouraging people to use drugs. The consensus of the provincial Attorneys General who were at that meeting was that amendments should be considered to the Criminal Code and the provinces will all be participating in making recommendations for amendments which would cover this particular problem. It’s then going to be taken up by a meeting of the Deputy Attorneys General in approximately seven or eight weeks’ time.


Mr. Swart: Supplementary: In view of the fact that I find it rather difficult to believe that the minister can’t find where the magazine is being printed, would he tell us what steps have been taken to obtain that information? Also, it was my understanding that he had launched prosecutions against some distributors; can he tell us what the state of those prosecutions is now?

Hon. Mr. McMurtry: I think the hon. member has been in the Legislature long enough to know that the Ministry of the Attorney General is not an investigative or police agency so we are not in the investigation business. Secondly, there are to my knowledge no outstanding prosecutions against this magazine or the distributors thereof. I’ve already indicated to the members of the House what are considered to be the inherent difficulties in a successful prosecution.


Mr. Roy: A question to our globe-trotting Minister of Industry and Tourism: I’d like to ask the minister -- apart from congratulating him on his haircut -- what initiatives he or his ministry are taking to combat the initiatives taken by some northern US states, which have taken the initiative to lure away Canadian companies from Ontario and from Quebec, especially into northern New York? I’d like to ask the minister whether he has taken any steps, in view of the fact that last year some 40 companies moved from Ontario and Quebec into the northern US, especially New York State, including 25 companies from Ontario?

Hon. Mr. Bennett: To answer the last part of the question first, we recognize very clearly that there were some companies in Ontario and Quebec that did take branch plant operations into the northern United States. They went there for the simple reason that the cost of production was less. They could produce their goods and send them into other parts of the United States at a lesser cost than they could do it either in Quebec or Ontario.

Mr. Sargent: Less taxes too.

Hon. Mr. Bennett: That could very well be, Mr. Speaker, less taxes -- also the payroll and a few other things, the social amenities in this province, are somewhat greater than they are in the United States; we recognized that fact right at the start.

The first part of the question was “What have we done?” We have made available to municipalities the opportunity of low interest rate of money for the development of industrial parks. Indeed, we’ve made OBIP loans available to industries to establish in, particularly eastern and northern Ontario, to help them establish at a lesser rate that would make their production system and the end product more attractive on the market.

Mr. Roy: Mr. Speaker, a supplementary to the minister’s question --

Hon. Mr. Bennett: It was not my question.

Mr. Roy: -- to the minister’s answer: In view of the fact that the initiatives he has talked about are not new initiatives, but initiatives they have had going for some time, and in view of the fact that these initiatives have not worked and Canadian companies are going to the northern US, what new initiatives or plans does he have to encourage Ontario companies to stay within Ontario, and what plans does he have to make our production more efficient?

Hon. Mr. Bennett: Very clearly, I wish the member would get it straight that these companies did not leave Ontario. They set up branch plant operations in the United States; that we clearly understand. The fact remains that they set up their plants in the United States to keep some degree of stability in their firms. The fact is they could not sell their products being produced on this side of the border.

I do not admit that the plans we have in place, the OBIP plan and the industrial parts program, have not assisted. There are still applications being dealt with the development corporations in northern and eastern Ontario to assist companies to establish.

As far as labour rates are concerned, that’s something that has to be dealt with at the individual manufacturing level, between the employees and the employer, or the union and the employer.

Let me go on to the next phase of it. The Premier, the Treasurer (Mr. McKeough) and I have said very clearly and distinctly that in the field of productivity there is more than just labour involved, and the cost of labour. This province has been seeking out -- on a world basis -- new foreign investment and new capital for the development and advancement of industry in the province. Indeed, we must find companies that are prepared to put more time and money into research and development in this province. With those investments in place --

Mr. Lewis: How are you going to do that?

Hon. Mr. Bennett: -- and that’s what we’ve been doing through the ministry’s encouragement -- while we haven’t been successful in all areas we recognize the fact there has been a great deal put into place and the fact that there are still employment opportunities in eastern and northern Ontario.

Mr. Lewis: Mr. Speaker, this is intolerable.

Mr. Wildman: A supplementary: Could the minister report to the House on the results of his initiatives to try to ensure that the jobs at Anaconda will be saved, in spite of the upgrading of the --

Mr. Speaker: That’s not a supplementary.

Mr. Wildman: It has to do with --

Mr. Speaker: The hon. member for Ottawa East with a supplementary.

Mr. Roy: In view of earlier statements that the minister made in July when this matter was brought to his attention, I wonder if he could advise us whether he’s prepared to stand by an earlier statement that he made in July. He said that if US firms were, in fact, luring Quebec companies into the US, it was an awful game to be playing; but the minister said that he was going to get in that game himself, to be competitive with the US and lure Quebec firms into Ontario.

Hon. Mr. Bennett: The member should go on to read the rest of the quotation. The Premier has said it and I have said it, and let’s make it clear once again in this House --

Mr. Roy: The Premier, especially.

Hon. Mr. Bennett: Let’s make it very clear in this House to the hon. member and to the people of the province of Ontario, that in this day of trouble for Quebec we, as a province, have not gone into Quebec seeking their industry.

Mr. Roy: That’s not because of you. That’s because the minister’s hands were tied by the Premier.

Hon. Mr. Bennett: They were not tied by the Premier, one bit.

Hon. Mr. Davis: The member was saying it was the Liberal policy to do it. He said it on Friday.

Hon. Mr. Bennett: It’s a policy decision of this government and I stand by it, and I think the member should stand by it too, because there’s a thing known as national unity to be considered.

Mr. Roy: Don’t worry. Don’t worry.

Hon. Mr. Davis: You are in trouble now. You are in trouble.

Mr. Roy: Who was reprimanded by the Premier?


Hon. Mr. Bennett: My ministry is well aware of certain firms in the province of Quebec that have indicated possibilities of their moving. They have been to this province and they have been to other parts of Canada; indeed, they’ve been into the United States seeking out a potential place for locating. We have not tried to lure them into the province of Ontario because we do not think that --

Mr. Roy: I hope not.

Hon. Mr. Bennett: Will the member let me finish? We do not think that in the long range it’s to the advantage of this province or this country. We do not.

We believe while we might today secure some firms from the province of Quebec into Ontario, in the short term it would be beneficial, but on a long-term basis it has no profitability to this country whatsoever.

Mr. Wildman: Firms from Buffalo are moving into Ontario.

Hon. Mr. Bennett: And so I stand by my word -- that if we are aware of the fact that there are firms that want to come to Ontario --

Mr. Sargent: Why don’t you sit down?

Hon. Mr. Bennett: The member for Grey Bruce is sitting down and that’s where he should be, let me assure him.

Mr. Roy: To think we let this loose on the whole world.

Hon. Mr. Bernier: You don’t want to listen.

Hon. Mr. Bennett: The last part of the question by the hon. member is one that I’ll answer directly. I said that if we found that there were American states penetrating some of the companies, whether they be in the province of Quebec or other provinces of Canada, then we would put our forces in the Ministry of Industry and Tourism to work to try to persuade them to stay on the north side of the border -- in the province of Ontario, for the good of this economy and the economy of Canada.

An hon. member: Well, while you were away, they were leaving.

Mr. Cassidy: Supplementary to the original question: Can the Minister of Industry and Tourism say what steps the ministry is taking in order to stop production and jobs being transferred to the United States at the direction of, or under pressure from, the head office of subsidiaries resident in Canada?

Hon. Mr. Bennett: Where we find there is such a situation developing, we have sent our people into the United States to speak with their management. If the member has some particular ones that he is thinking of, if he’d let me know, I’ll follow them up with our records to see whether they are the same ones.

Mr. Wildman: Anaconda.

An hon. member: You could easily find them.

Mr. Cassidy: Anaconda.

An hon. member: Twenty-five firms last year. You should know.

Mr. Speaker: Final supplementary on this, the hon. member for London Centre.

Mr. Peterson: This is a supplementary with respect to the first supplementary the minister had today. He referred to the initiative of the government, of the Premier running cap-in-hand to Japan and various other countries to ask them to buy us out or to invest here in the province of Ontario.

Hon. Mr. Davis: I don’t wear a cap.

Mr. Reid: That’s because it’s in your hand all the time.

Mr. Peterson: In the process the minister was addressing the question of capital shortage here in Ontario. Is it his view that the huge government spending and the deficits created thereby, and the necessary intrusions into the capital market by governments, helped to cause this problem and what is he going to do about it?

Hon. Mr. Bennett: I wouldn’t want to prejudge whether the intrusion into the capital marketplace by governments has caused this shortage or not. Indeed, there is a lack of confidence in investment in Canada at the moment.

The Premier of this province and the Premiers of several provinces in this country have gone into the foreign market to try to put back a degree of confidence in investment in Canada and the various provinces. We’re not alone in travelling in the world market. Thank goodness, we do go out into the world market.

There’s only one way -- and the federal ministers are doing a fair job; I give them credit for travelling in the world market and trying to build a degree of confidence in the economy here and the opportunity of investment. The only way we’re going to encourage people to invest in this province and in this country is if the people in the higher political offices go out and speak with the industrialists and the investment community. In that way we’ll generate the confidence which is necessary. The businessman then follows up to sell his particular commodity, product or technology which will then turn an advantage to this province.


Mr. Philip: I have a question of the Minister of Consumer and Commercial Relations. A couple of weeks ago he reported that the report of the Kealey condominium study group would not be tabled for yet another eight weeks, even though the minister’s predecessor had stated it would be ready in March 1977 and the Premier had promised it for June 1977. Is the minister prepared to approach the Premier at least with a view to releasing Darwin Kealey --

Mr. Cassidy: Just release him that’s all.

Mr. Philip: -- to prepare the kinds of legislation which will come from the report so that at least we can get some legislation before us and as soon as possible following the tabling of the report?

Hon. Mr. Grossman: Mr. Speaker, we think it would be appropriate first to receive the report of the study group, which is no doubt going to be a fine and extensive report, in view of its author. Only after we receive the report will this government consider going to legislation. It’s a habit we have of waiting to get the report of the people who have been asked to study it before we prepare some legislation.

Mr. Swart: Where’s the Municipal Elections Act? We’ve been waiting for that.

Hon. Mr. Grossman: Having said that, let me assure the hon. member that the report, I’m told, is at the printers. It will be a matter of, I think, three to five weeks until it is available.

Mr. McClellan: Is it being written by hand?

Hon. Mr. Grossman: Hon. members will have it as soon as I have it, and we will be considering it forthwith after that, hopefully with some legislation next year.

Mr. Philip: Supplementary: Is the minister aware of statements made by Darwin Kealey in the Toronto Star which confirmed the minister’s new delay but also stated, and I quote: “The report will avoid Band-Aid solutions to existing problems such as defects in construction,” and can the minister tell us whether this means that legislation will not deal with the number one problem, namely the ripoff of consumers by construction companies, or is he planning on writing to the construction companies to ask whether they’re ripping off the public?

Hon. Mr. Grossman: No, I thought I’d have the member for Welland-Thorold write a little contractor in Buffalo to get that information for me.

Mr. Swart: You won’t get it from me.

Hon. Mr. Grossman: I want to make it clear that there is no ministerial delay involved, as the hon. member tried to slip into his first question. The report has been submitted to the printers. I haven’t seen it.

Mr. MacDonald: They must be the slowest printers in the world.

Hon. Mr. Grossman: So the comments of the hon. member with regard to some of the other matters, that it won’t be a Band-Aid solution and so on, may be true, but I haven’t seen the report. When I see it -- and, as I say, hon. members will see it as soon as I see it -- then we can both comment upon the action to be taken.

Mr. Warner: In the fullness of time.

Mr. Philip: A further supplementary: If the minister hasn’t yet seen it, and if the minister is not prepared to make statements on it, would he then at least inform Darwin Kealey to stop setting off false alarms in the press before we have an opportunity to look at the report?

Hon. Mr. Grossman: Firstly I want to reaffirm there’s no point in saying, “if I haven’t seen it.” I haven’t seen it. The answer is that Mr. Kealey obviously has seen it and is quite free to comment in a general sense without, I would think, disclosing any of the specifics with regard to how comprehensive the report is going to be.


I might say that I think very many people who are awaiting the outcome of the report and the subsequent legislation and who are worried about their rights, are, indeed, entitled to some assurance by the author of the report that it is not going to be an interim or piecemeal document. I think it’s quite appropriate, normal and healthy for the author of the report and the head of the study group to say: “Look, we have produced a very comprehensive, wide-ranging report.” I think that’s healthy and important, and if he wants to say it time and again, I will encourage him to provide that assurance.


Hon. J. A. Taylor: On Friday, Mr. Speaker, the Leader of the Opposition asked if I would explain an apparent discrepancy between figures cited in two documents --

Mr. Lewis: You are in his pay. I am sure you are on his payroll.

Hon. J. A. Taylor: -- which I had tabled concerning the construction of the Bruce heavy water plants. The first set of figures, $416 million for 1975 and $506 million for 1977, refers only to the Lummus portion of the construction costs on plant B. The second set of figures, $567 million for 1975 and $739 million for 1977, refers to the Lummus portion plus the Ontario Hydro portion of the costs.

The Leader of the Opposition asked if these differences -- he called it a discrepancy -- were in any way related to a hand-written notation on one of the sheets which said: “First two sheets only for ministry.” The answer, Mr. Speaker, is no.

Mr. S. Smith: By way of supplementary, the difference appears to be that the Hydro portion was originally estimated at $150-some-odd million and it ended up at practically $260 million. Can the minister explain the discrepancy in the Hydro portion of that contract?

Hon. J. A. Taylor: Again, if the hon. member will look at those figures -- the Hydro portion in 1975 was $151 million and in 1977 was $233 million. The explanation was given previously.

Mr. Lewis: That was a little better. I wouldn’t give you a passing grade but that was better.


Mr. Conway: A question of the Minister of Industry and Tourism: What is the reaction of his office to the interim ministerial report referred to in the recent report of the Ontario Land Corporation with respect to the disposition of the famed Edwardsburgh land assembly as “an experimental farm for eastern Ontario”?

Hon. Mr. Bennett: Mr. Speaker, I think if the hon. member would read the Hansard of last night’s estimates committee, he would find my remarks in full. I said I thought that in the long range, we will continue to have the land available for heavy and large industrial development, but that I thought it was important at this stage, while economics are down and there is little possibility of locating an industry for that particular park, it was best that we put the land to some use and we are following the recommendation as described in the Dillon report.

Mr. Conway: Supplementary: Are we to deduce from that that this showcase for the industrial development of eastern Ontario is to be allowed to lapse into some kind of experimental farm in the absence of any concrete initiatives to produce the kind of industrial development that this government spoke so glowingly of two and a half years ago?

Hon. Mr. Bennett: Yes, Mr. Speaker, we spoke very glowingly of it two and a half years ago.

An hon. member: You didn’t.

Mr. Roy: That’s right. You didn’t know about it until you were appointed.

Hon. Mr. Bennett: I think if the hon. member would look at the economics of the times, they were somewhat different to those we face today; not only in Ontario and Canada but in the world situation.

Mr. Roy: That’s because you’re in charge.

Mr. Foulds: The minister just can’t manage the economy, can he?

Hon. Mr. Bennett: If the member for Ottawa East were here more often, he would know what was going on.


Mr. Nixon: The minister just got back from a world trip at the expense of the taxpayers.

Mr. Roy: A round-the-world trip.

Hon. Mr. Bennett: At least mine was on behalf of the people of the province of Ontario.

Mr. Speaker, for a short period of time we intend to use it between the Ministry of Natural Resources and my ministry in its further exploration.

Mr. Sargent: On a point of order.

Mr. Speaker: There’s nothing out of order. We have had enough time on this. The hon. member for Beaches-Woodbine with a new question.

Mr. Roy: There is evidence of your record in Edwardsburgh. You do a helluva job.

Hon. Mr. Davis: Watch your language.


Ms. Bryden: I have a question of the Minister of the Environment. Will the minister explain to the House the precise difference between a certificate of approval for experimental burnings of PCBs and a certificate of approval for regular burnings? In particular, will he clarify the status of the certificate of approval, dated January 5, 1976, issued to the St. Lawrence Cement Company in Mississauga -- I have a copy of this -- which authorizes the burning of PCBs without any reference to experiments, and which has no expiry date and no limit on the volume of burnings to be allowed?

Is this certificate of approval still in effect, or did the minister issue another order abrogating it or suspending it in June or May, or whenever it is he said they stopped burnings? I am asking the minister if he could clarify the position of this certificate; and if there is any subsequent order, table that order for us so that we may know what the position is at Mississauga regarding whether burnings can continue under the present order or stop.

Mr. Speaker: The question has been asked.

Hon. Mr. Kerr: The question was in about 10 different parts. Very briefly, the certificate that the hon. member refers to for the burning of PCB material was issued as part of the ongoing experiment at St. Lawrence Cement. In order to complete the experiment, it is necessary to have what would be a typical burn, in other words using the type of material so that the experiment could be assessed to see if the material could be handled in that way and to see if PCBs were being destroyed sufficiently to allow the certificate to continue.

The certificate itself doesn’t use the word “experiment” nor does it use the word “permanent” It is just a certificate with, as the hon. member says, certain conditions. It was in effect, I believe, from January, 1976, until about May of this year. At that time, there was an analysis by one of the federal agencies we had involved in the experiment of the PCB burn during that period of time. It was then that the recommendation was made that certain changes be made in respect of the handling of the material, and also recommending certain on-site monitoring. At that time as well, as the hon. member will recall, there was some controversy over the importation of some PCB-contaminated material, I believe from Iowa.

At that time, because of the analysis we stopped the burning of PCB-contaminated material, that is since May up to and including now. At the present time no PCB-contaminated material is being burned at that plant.

Ms. Bryden: Supplementary: Did the ministry issue an order or a letter suspending this particular certificate of approval, since it has no time limit on it and it doesn’t say “experiment”? If so, would he table this letter and indicate to us on what terms the resumption of burning would be allowed, if the certificate of approval is still in effect.

Hon. Mr. Kerr: It is my understanding that verbal instructions went out to the company. It is quite possible that was covered by a letter, I will find that out. As far as recommencing goes that will not take place until after we have a public meeting.

Mr. Lewis: Supplementary: What does the minister mean by a public meeting? The last time we talked, it was a public hearing. Are we going to have a public hearing under the Environmental Hearing Board, as anyone who asked that question would have assumed, or is the minister now neatly backtracking because of the anger of the civil servants in the ministry that he had committed himself publicly to a public hearing, and he is just going to have one of those information meetings? Which is it going to be?

Hon. Mr. Kerr: It is not a question of backtracking at all. As I said before, a hearing under the Environmental Protection Act is not required as far as the burn is concerned.

Mr. Lewis: But in this Legislature the minister said a hearing.

Hon. Mr. Kerr: All right. The fact is that the idea I have at the present time is to have a public meeting this month. It would be impossible to have a hearing under the Environmental Protection Act certainly before the first of the year. It takes time to set that up, with the advertising and that sort of thing.

Mr. Lewis: Fine, all right.

Hon. Mr. Kerr: So in order to have a quick public meeting so that we can allay some of the concerns in Mississauga --

Mr. Lewis: So it is a retreat from the minister’s commitment.

Hon. Mr. Kerr: -- we will have a public meeting hopefully before the end of this month, at which time the people involved in that experiment from my ministry and other agencies can explain exactly what’s been going on there. If we feel it is necessary then to go further under the Environmental Protection Act, that decision will be made.

Mr. Lewis: So the minister has moved away from the commitment that was made.

Mr. Foulds: Weaselled out.


Mr. Gaunt: Mr. Speaker, I have a question of the Minister of Natural Resources. Would the minister review the new requirement this year, where trappers are required to get permission from all landowners in writing before a licence is issued; would he do so in view of the fact that many municipal leaders are refusing to sign, and also in view of the fact that there seems to be some apparent disagreement within the trappers’ association?

Hon. F. S. Miller: Mr. Speaker, I’m not sure that it’s as easy as it sounds. My sympathies are with the trappers. I have looked at the new regulation, and in particular the form that was changed this year upon which they have to have some indication that they have permission to trap on private lands. That, of course, is not new. On any lands that they don’t own, it’s just like any common trespass; one may not enter upon lands that are not his own without permission. For many years that’s been a requirement not really adhered to too strictly. Certainly our staff have been told, at least for this year, to back off of that requirement while we have a chance to look at the forms and come to a better conclusion.



Hon. Mrs. Scrivener moved first reading of Bill 88, An Act to amend the Corporations Tax Act, 1972.

Motion agreed to.

Hon. Mrs. Scrivener: Mr. Speaker, as I stated earlier, this bill is a major step forward in Ontario’s tax simplification program.

Mr. Cassidy: It’s not simple.

Hon. Mrs. Scrivener: It ties the Ontario Corporations Tax Act to the Income Tax Act of Canada where both governments have the same policy.

Mr. Foulds: One of 10,000 steps.

Hon. Mrs. Scrivener: For many years, Ontario has closely paralleled most federal actions as they concern the taxation of corporations. The basic reason for this is to prevent the growth of a tax jungle, while at the same time providing the province with the flexibility to operate its own tax policy where needed.


Mr. Speaker: Order in the chamber, please. Everybody has the right to be heard.

Mr. Lewis: There are exceptions, and this is one of them.

Hon. Mrs. Scrivener: This bill has three main elements. First, there are some administrative amendments, the most significant of which is an increase in the flexibility in the rules governing appeals.

Mr. Lewis: I don’t know how we lost that seat.

Hon. Mrs. Scrivener: Second, the bill includes provisions to allow for special tax incentives for investors in venture investment corporations.

The third element is the most important, and that is the simplification of the corporations tax itself. This bill provides that where the policies of Ontario and the federal government are the same concerning the taxation of corporations, the relevant provisions of the Income Tax Act of Canada will apply for Ontario purposes.



Hon. Mr. McMurtry: Before the orders of the day I wish to table the answers to questions 25, 26 and 28, and the interim answer to question 27 standing on the notice paper.



Resumption of the adjourned debate in committee of the whole House on Bill 60, An Act to reform the Law respecting Succession to the Estates of Deceased Persons.

On section 69:

Mr. Chairman: I believe when the committee was sitting previously there was an amendment before it, by the member for Carleton East, to section 69. Does the member for Carleton East have any further comments?

Ms. Gigantes: Yes, Mr. Chairman, we were in the midst of a discussion relating to that motion to delete, in which the Attorney General (Mr. McMurtry) had described to the House the reasons the government felt that subsection (1)(a)(XII) should remain within the bill. He was citing, Mr. Chairman, cases from English precedent in which there is some jurisprudence on the phrase “a course of conduct which is obvious and gross” or “gross and obvious conduct.” I submit, Mr. Chairman, that that is not the phrase which is being presented to us in this bill. I consider it quite important that we realize the distinction between the jurisprudence, which is being cited by the Attorney General for establishing this phraseology, and realize that the jurisprudence he is citing does not, as far as I can understand it, apply to the phraseology which is proposed here.

Here we are dealing not with “gross and obvious conduct” at all. Here we are dealing with “conduct that is an obvious and gross repudiation.” I would like, Mr. Chairman, to suggest that we should not try and establish a new kind of jurisprudence with this new phraseology. If the Attorney General has any explanation to offer about what he feels would be the reading of the courts of Ontario in trying to establish what is conduct which is an obvious and gross repudiation of the relationship, I would be interested to hear it.

Hon. Mr. McMurtry: Mr. Chairman, I don’t think I have anything to add to what I said the other day. I appreciated the concern of the hon. member for Carleton East and with that in mind I had one of the senior law officers write the hon. member for Carleton East a fairly lengthy letter -- some four pages -- on October 28, 1977, which I trust reached her attention, attempting to clarify the issue further. It would appear we have not satisfied her, and I don’t think it is going to serve any useful purpose to take up further time of the Legislature in that effort, other than to say that I don’t think we should be intimidated by the suggestion that the courts of this province will be asked to embark upon the development of further jurisprudence.

Obviously, Mr. Chairman, this is a necessary adjunct to any legislation, particularly legislation that is of a reform nature. This particular section may not satisfy the member as a useful reform; but certainly in our view it is part and parcel of legislation that I think is important reform legislation, therefore it will be up to the courts to develop the necessary jurisprudence.

I refer to the English cases because I think they are indeed very useful in determining the meaning of the words “obvious” and “gross.” I don’t think these English authorities have any further significance other than what I’ve referred to, except to indicate the general approach now taken by the courts in conduct questions.

Although these decisions were decisions of English courts and not necessarily binding on Ontario courts, they will obviously be given great weight by our courts. I don’t think there is anything further I can usefully add at this time, other than to state that this matter has been canvassed with the family law section of the Canadian Bar Association and I’m so advised it is in favour of the wording in this form.

Ms. Bryden: I share the concern of my colleague from Carleton East regarding the inclusion of this clause in this bill. We know that in the past conduct clauses of this sort regarding successions and divorces have tended to be applied rather one-sidedly against the female person. I realize the legislation makes no such discrimination, but there are still traditional views that may tend to cause a continuation of that situation.

I realize that the wording has been changed somewhat to try to make it apply perhaps only in very extreme situations. However, I think the principle of including it means there will be considerable weight put on this element in any contested situation, when there are many other factors to be taken into account. I would like to see it removed; then if we find from experience there are cases where there appears to be very serious miscarriages of justice, we could consider putting something back in that might cover any situation where there is a miscarriage of justice.

I would like to see us consider taking it out and then see what happens. Then we will not have the situation of conduct becoming a major element in almost every litigation, which can lead to very serious and bad relationships between the contesting parties and can cause a great deal of pain and hurt. For those reasons I would rather see us go toward a sort of no-fault principle.

Mr. Lawlor: Because I find myself, on this issue, somewhat at odds with certain of my colleagues, I would like to put on the record my own feelings about this matter. I would, of course, retain the clause and retain the clause precisely as written. The move towards no-fault in a number of fields is acceptable, in the spirit of the times and the Weltanschauung, and will come to pass. The law doesn’t work that way, and populations are not so reformed overnight. It is done by accretions.

In the particular move here, there is a clause embedded among 16 headings. Only one among those 16 headings, albeit an important one, is subject to the determination of the court as to where the emphasis will lie.

It is assumed, and too grotesquely and immediately -- and presumptively assumed -- that it will be given paramountcy, leading to even possibly exclusive operation by some woebegone and benighted judiciary, who can’t read statutes and who don’t know the present tenor of the law; the present tenor of the law being that it is in a position of paramountcy, that various forms of marital failure or marital misdemeanour are considered as being fairly determinative of the issue. The very way in which this is couched, the fact that it is embedded in the context that it is, is a clear pointer to the judiciary of what the intent is. I also argue that many, particularly of the younger members of the judiciary, have asked for and welcome this new orientation.

It’s not just a question of emphasis, it is orientation. It’s a changed viewpoint, deeply reaching into laws that are well over 500 years old. Here we have very searching and rooted distinctions being made, and the thing being presented in such a way as to have that particular effect.

Secondly, you have to take a look at the very wording. Not only is it placed in this subordinate position, as one ingredient among many, but the wording itself is, over against your initial use of the term “conduct” in the legislation that was brought in approximately two years ago, so watered down, so -- I wouldn’t want to use the word emasculated -- that again they’re in a double move to meet the recognized spirit of the times in these matters. But to remove conduct completely as a consideration in extreme cases, in cases where conduct is a looming factor, seems to me to be irresponsible. As a matter of fact, the whole argument revolves around the notion of responsibility.

In some ways, you know, there are two prongs to this thing. The one prong is, under the impressive contemporary psychology, the greater and greater tendency is to see that no one is responsible for very little. In other words, our subconscious activities, our motives, our instinctual behaviour, acquired behavioural patterns, environmental influences on behaviour -- all these things are supposed to so diminish our sense of personal responsibility as to lift the burden of making choices and of performing certain acts which are highly detrimental to human relationships.

The whole purpose, if I may go aside just for a moment, the whole purpose of psychoanalysis is to liberate people into being responsible, not the opposite; to remove the full human development implied in the term “responsibility.” That’s one thing. Then, even if it’s admitted that responsibility is recognized and being exercised as between spouses but you can’t sort it out, that it is over such a long period of time so intertwined and so many subtle and delicate relationships, a word said wrong on a particular evening, a fact the husband turned his back -- you know, a million things which novelists write novels about -- these are the things that it would be unfair to seek to sort out or in any way to determine.


But surely in our human relationships, if I offend you or you me, whatever your motivation may be and whatever grounds, there are cases in which this becomes quite gross, where it becomes very obvious. It shows, to some degree, that you have gone out of your way.

If I’m particularly kind on a particular occasion the same thing applies. Certain credence and credit is given to individuals in those relationships. They’re recognized as contributing factors to unity and to people coming together just as other things are distinctly adverse to the forming of good relationships.

I give the judiciary and us, in common life, the good sense of being able to make some kind of assessment of that. It’s not for the purposes of casting blame or making judgements upon the deportment and manners, or even the morals of other human beings. It is simply to say who has disrupted this relationship with a greater or lesser degree of deliberation. There have been many instances of this. To remove it entirely is wrong, so I go the opposite way of my colleague who just spoke. I would leave it there and let the jurisprudence develop around it. I have high hopes that jurisprudence will meet all our assents. I have every reason to believe that that will be the case, from my experience in law.

If it doesn’t, then we can amend it. But to go holus-bolus in the opposite direction and to have all this all or nothing, in any particular context, strikes me as a little too logical. I can’t agree with my colleague from Carleton East who reads this with the subtlety of a grammarian.

As a matter of fact, the way it’s worded may be more difficult in the application of the concept of conduct than if the gross and obvious were related to conduct qua -- it’s related to conduct leading to repudiation.

I think the judiciary looking at that is going to have to look at acts which are acts of repudiation -- overt, gross acts of this particular kind, and there are such acts left in the world -- and whether the other spouse should support and maintain an individual in face of those acts; with the consequences bred from that, namely, that that spouse will feel deeply offended and will say: “What kind of a law is that, and I’m damned if I’ll pay.” And everyone of us will bow our heads and say, in the circumstances: “I wouldn’t pay either if I were in your shoes. I’d go to jail first.”

Hon. Mr. McMurtry: Mr. Chairman, just very briefly. I appreciate the remarks and the customary wisdom of the member for Lakeshore. Perhaps for the benefit of other members in the Legislature who have not received copies of the correspondence submitted to the member for Carleton East, I could give an example of the type of conduct that will concern the English courts. These two cases were outlined to the member for Carleton East.

The first was the ease of Novak and Novak where the husband, by the use of an axe, killed children four and five years old. Not surprisingly enough, that was considered gross and obvious conduct. But this is the English jurisprudence.

In the case of Jones and Jones, after the husband’s physical abuse of his wife the couple separated; it was after cohabitation the husband attacked his wife with a knife causing a 75 per cent disability to her right hand. Again, this is considered to be a case of gross and obvious conduct. So I think it’s an indication of the narrow application, and very strict application, that the English courts have given to this phrase.

Again, I’d remind the members that this has a particular significance with respect to the Succession Law Reform Act, because we’re not talking about people who are alive, we’re talking about someone who has died and we’re talking about interfering with testamentary capacity. Obviously when one awards support out of the estate on such an application, the court is interfering with the testamentary capacity of the deceased, and certainly, innocent third-party beneficiaries actually are the ones who will bear the loss. I think that is an added reason why this clause is one of the 16 clauses that should he considered in such an application.

Mr. Roy: I would like to make a few comments on the amendment. The first point I would like to pick up on is the last comment by the Attorney General; to me, that’s the one that has to be emphasized strenuously.

It’s a fact that one of the sacred principles built up in jurisprudence over many centuries is to try to preserve what the Attorney General has talked about; that is the wishes of the testator. We have seen a whole line of cases or jurisprudence built up over the years where courts are, in fact, very nearly standing on their heads to try to follow the wishes of the testator. This type of application in fact is giving jurisdiction to the courts to interfere with that, because on the question of priorities and on the question of principles, it says there may be one higher priority -- that’s the dependant’s needs -- which may be affected; it gives the court jurisdiction to interfere with the testator’s wishes. That certainly has to be kept in mind.

The second thing I would like to say is that it appears to me that as lawmakers, which we are, what the member for Carleton East is suggesting is the law as it possibly should be or the law as we would wish it to be. Unfortunately, that’s not how the world operates. In many instances the law has to reflect reality. If the law is not reflective of reality or there’s too much gap between --

Mr. Lawlor: Use an argument like that and I will vote against it.

Mr. Roy: I just say to my colleague from Lakeshore, there are many occasions when I am sitting here and trying to follow exactly what he’s saying. But I override that; I say “He must mean this,” so I go along or I try to follow my own path.

Mr. Lawlor: That word “reality.”

Ms. Gigantes: He has followed you. He is just reasoning.

Mr. Roy: But the point that I think is important, and the one that the member for Carleton East must understand, is that if there is too much gap between the law and what is reality, people will not respect the law. So we have to pass laws here which reflect what reality is.

Many of us who have had experience in family law, in marital relationships and things of this nature have come to the conclusion, as the member for Lakeshore has, that a point is reached where the husband or wife, one of the spouses, says: “Look, in these circumstances I feel that the conduct is such that it does not bind, that in fact it is a denial of my responsibility.” I appreciate that subclause (xii) is offensive in some measure, but that is a fact of life and in fact this deals again with the wishes of the testator. Secondly, in my opinion we have gone as far as we can the other way when we talk about “obvious and gross repudiation,” and I would hope that the cases would not limit obvious and gross repudiation to some of the case law or jurisprudence that the Attorney General has read about, because that obviously would require something that would be a bit much.

Basically, I am saying that I cannot agree with the amendment as proposed by the member for Carleton East.

Mr. Chairman: Any further comments? The member for Lakeshore.

Mr. Lawlor: On the same section but a different matter.

Mr. Chairman: I probably should deal with the amendment that is before the committee at this time then. It has been moved by Ms. Gigantes to delete section 69, subsection (1) clause (a), subclause (xii).

All those in favour will please say “aye.”

All those opposed will please say “nay.”

In my opinion the nays have it.

I declare the motion defeated.

Mr. Lawlor: Just one short question on a possible subclause (xvii): One of the briefs that came in to us -- it may have been the Bar Association group -- mentioned tax consequences as one of the possible considerations. Did you consider that? Since you have left it out, why did you omit that?

Hon. Mr. McMurtry: We have considered the issue of tax consequences. I know I have had some correspondence with the federal government in this respect, and perhaps some of my staff may be able to assist me in a moment with respect to how that matter was resolved, if it has been resolved.

I am advised that the courts now take into account the matter of tax implications and that it is not, therefore, necessary to include a specific provision in the bill.

Section 69 agreed to.

Sections 70 to 78, inclusive, agreed to.

On section 79:

Mr. Lawlor: This section is worth its weight in gold. For years lawyers, in their peculiar ingenuity, have set up all kinds of devices whereby to frustrate the operations of the Devolution of Estates Act and the Dependants Relief Act, but particularly the Devolution of Estates Act, as to cutting people out to whom they owe obligations during their lifetime. They set up trusts and then they make designations under pension plans, and they make designations under the Insurance Act -- there’s a whole host of measures which we, in our backward way, always plumed ourselves upon knowing about and on occasion using.

It has now got through to the Law Reform Commission and to the Attorney General’s department that these dreadful things were going on out there, and the door is being closed on a host of these machinations to defeat people who are deserving and in need, and who would otherwise have a claim upon an estate. I commend the Attorney General on this section.

Section 79 agreed to.

Sections 80 and 81 agreed to.

On section 82:

Mr. Lawlor: The inevitable question: Why? When the legislation was introduced, the sum for removal into the Supreme Court was $10,000 and it has been doubled. I know it is a numbers game kind of thing, but I think some explanation should be given for the record.


Hon. Mr. McMurtry: As the hon. member for Lakeshore knows, there is something rather arbitrary about picking the figure $20,000 as opposed to $25,000, for example. Obviously, what was considered was the matter of inflation since the figure was legislated. I’m advised that this figure reflects provision in the Surrogate Courts Act which provides that administration of an estate can be moved up under the Surrogate Courts Act only at the figure of $20,000.

Section 82 agreed to.

Sections 83 to 88, inclusive, agreed to.

On section 89:

Mr. Lawlor: Just a word on this. As in other sections -- but I’ll bring it up here -- on second thought, or maybe it’s fourth thought, the minister has removed the step-parents, step-brothers, the “step” relationships from this particular form of compensation for victims of crime, and elsewhere in the statute. I’d like to hear the minister’s comment on that. Was it under the impress of the law society or the bar association that the minister did that?

Hon. Mr. McMurtry: I don’t know. I’ll see to it, Mr. Chairman. I don’t recall the history of that. Hopefully, I’ll have that information for the hon. member in a moment, if it’s available.

Mr. Lawlor: If I may, Mr. Chairman, I would like to say a word in the meantime. There was a lot of protest about it coming from all kinds of sectors in the community, that it was extending the range of people protected under this legislation; under the Perpetuities Act, under the support obligations and in a whole host of areas just a little too far into the “step” field. There was great objection taken and I assumed that the Attorney General saw the wisdom of removing it, which I think was wise.

Hon. Mr. McMurtry: I think the hon. member for Lakeshore is absolutely right. I had forgotten the controversy, but I am advised that the step-relations section was criticized as being far too broad, particularly where step-children and step-parents were covered. It was in response to criticism which was considered to be justified that “step” relations were removed.

Section 89 agreed to.

On section 90:

Mr. Lawlor: One final whack at this legislation. One could, as I think the Attorney General would appreciate, give a little dissertation on the Perpetuities Act, that recondite old chestnut that kept us up all night on many occasions.

Hon. B. Stephenson: Patrick, you do that so well.

Mr. Lawlor: The Perpetuities Act says something about that the state can vest, but it has to be within life or lives “in being” past 21 years. If individuals under a will fall outside that period, and they’re trying to bring -- this has to do with illegitimate children and with unborn children and the rule of Whitby and Mitchell in the courts, I won’t go into it. You’ve had a certain amount of flak about tampering with this ancient and almost sacrosanct rule in this legislation, but I respect your temerity and never your timidity.

A further comment if I may. I would think it would be highly beneficial if this legislation, since it’s moving through today, could go to third reading immediately and become law.

Those whose main task in this life, or for whom one of their main tasks is to draft wills and testamentary documents of all kinds -- and they’re not just lawyers out there who are concerned in this field, but the whole of the trust industry and whatnot -- have been calling for the passage of the legislation.

The last section 91, prolongs the agony up to March 31, 1978. I would think January 2, 1978, would do everyone just fine. I know the Attorney General has some misgivings about that. But I think that date should be moved and prolonged no further.

Section 90 agreed to.

Sections 91 and 92 agreed to.

Bill 60, as amended, reported.


House in committee of the whole on Bill 61, An Act to reform the Law respecting the Status of Children.

Sections 1 to 3, inclusive, agreed to.

On section 4:

Mr. Lawlor: There is such a mess of bills before us today, Mr. Chairman, that one has to refresh one’s memory.

Section 4 says, “Any person having an interest may apply to a court for declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child.”

Is there any difficulty on the female person’s side of the matter being the mother of a child? Why is this given, therefore, specific mention?

Hon. Mr. McMurtry: I am sorry, Mr. Chairman, I didn’t hear the question.

Mr. Lawlor: It has to do with subsection (1) of section 4, saying there may be a declaration as to fatherhood and as to motherhood. I question the necessity of the motherhood provision. Is there any problem there that that should be imbibed?

All the rest of the sections as we go through them make specific or almost exclusive reference to proving paternity, but there doesn’t seem to be much difficulty on the maternal side.

Hon. Mr. McMurtry: With respect, Mr. Chairman, I know that such a well-read gentleman such as the member for Lakeshore would be familiar with some of the great novels that have been written when the whole issue of maternity was the crux of the plot. While it may not normally be as common an issue as the issue of paternity, obviously it could be an issue and a very important one. I am further advised that this was requested by the wills and trusts section of the bar association.

Section 4 agreed to.

On section 5:

Mr. Lawlor: It says at the end of 5(1), “Any male person may apply to the court for a declaration that a person is his child.” That is commendable and a breakthrough, and had been asked also by the bar people. I mention it because it is, I think, a little extraordinary. But the very fact that it is brought into the legislation and said explicitly in this instance is helpful in that kind of action.

Mr. Roy: Yes, you got it on the record. Good for you.

Section 5 agreed to.

Sections 6 and 7 agreed to.

On section 8:

Mr. Lawlor: I just want to make mention of section 8 subsection (3), on page 4. This is where there are two possible fathers, or more for that matter. All presumptions go out the window at that particular point. I think that should be pointed out.

Section 8 agreed to.

Section 9 agreed to.

On section 10:

Mr. Roy: The Attorney General will recall that at the time we discussed this bill on second reading, the party on this side made certain comments about how we felt this legislation certainly was progressive and that in the main we were supporting the legislation. But we did have some reservations about section 10, the whole tone and approach taken in section 10. It states that a party to the parentage action can make an application and the court can give him leave to obtain blood tests from such persons as are named and an order granting leave to submit the results of this evidence. We had expressed concern that once that was done subsection (3) then allowed the court to make a certain inference if a party refused to submit to such a blood test.

I must say I have had occasion since that time to discuss this matter with the Attorney General and I have had occasion to discuss it as well with my colleagues. It appears that our original concern was simply that if the blood test, being what it is, only shows that one is not the parent, it cannot show that one is the parent, we felt that to give the court the power to draw an inference which scientifically a blood test could not, was going too far.

What was happening was that if one in exercising his civil rights said, “I will not submit to a blood test,” just as someone may say he will not submit to fingerprint tests or something of this nature, the court would then proceed to make a conclusion which, had he submitted to the test the test could not.

We were seriously concerned about this. On further discussions with the Attorney General, he gave the example where in a paternity suit a person denies he is the father and says he will co-operate. He says, “I want blood tests of various persons”; including the mother in this case where she is the applicant.

I suppose it could go the other way, but I suppose in practicality it does not. If the mother at that point refused, he would find himself in a difficult situation in saying, “I’ve got this order for a blood test which I am convinced will show that I am not the father. Yet I am not able to obtain this evidence because the applicant is refusing.” I can see that as a situation, certainly, in which the court should at that point have the right to draw such inference as it thinks appropriate.

I still have concern about the section in spite of that caveat. I have difficulty envisioning a situation where that would happen and the applicant would refuse to go through a blood test, although certainly it is possible. When we are passing laws, we should have all circumstances, even the most improbable ones in mind. To cure that particular problem, then, we have to go so far on the other side; I suppose that’s one of the evils of the whole process. I think it was clear from reading the Law Reform Commission recommendations that one could save a lot of time and save a lot of effort through the question of blood tests in these applications. In making a decision, the court should at least have all scientific and all medical evidence available to come to that type of conclusion.

I must say at this time that on this side at least we will not oppose the passage of this section. We do so with a certain amount of reluctance. I naturally have great concern about the trampling of civil liberties in the conclusions that the court can come to if one is enforcing his rights; but the fact is, it seems to me, that the highest interest that has to be served, because that is the whole purpose of this legislation, is the right of the child. On that basis, we are on agreement and we will not oppose this section.

Section 10 agreed to.

Section 11 agreed to.

On section 12:


Ms. Bryden: Mr. Chairman, I may say we’re very glad to have this legislation, at long last, clarifying the position of children generally in their status before the law. It’s long overdue.

But on section 12(2) I have a question. I notice that any person “having an interest” may inspect the statutory declaration of paternity by anybody who is chosen to make such. Yet further down, in section 14, it says “any person” -- it doesn’t say “with an interest”--”may inspect a court order regarding paternity.”

I just wonder what is the reason for restricting the inspection of the first declaration to a person with an interest. It seems to me there may be situations where, in order to avoid litigation, somebody might wish just to make a simple declaration of paternity. The other persons who might have an interest and are not sure whether they have an interest might then wish to inspect that to see what the declaration said.

There could also, I would think, be the possibility that an adopted child, who has a presumption that a person is his or her father, might wish to inspect such a declaration. It seems to me that that should be available to them if they so wish, the same way as a court order which has established paternity would be available under section 14(2).

Hon. Mr. McMurtry: The hon. member touches on the heart of the matter. Section 14 is a court order and therefore would necessarily be open to public inspection, whereas a declaration under section 12 is considered to be really a private matter. It is not a public document in the same sense.

Ms. Bryden: Can you explain to us why it should be a private matter when the other one is made public, particularly in the case of an adoptee who might wish to obtain this information?

Hon. Mr. McMurtry: Obviously if it is the result of a court proceeding it must be a public document. So far as document records are concerned they are not public documents.

As a matter of fact, section 1 of this Act provides that adoption is regarded as if the child were born to the adoptive parents. There may well be circumstances whereby the adoptee, for example, would be an individual who would have an interest in the matter. I think the section, as I understand it, is to encourage people in special circumstances to make such a declaration and to file it in the office of the registrar general. I would think that this intention would be defeated if it were known that this would be a public document and would be open to just curiosity seekers as opposed to people with a legitimate or relevant interest in the matter.

Ms. Bryden: Could the minister clarify what an interest means in this legislation? There may be a technical understanding of it, but perhaps he could clarify it for a non-lawyer.

Hon. Mr. McMurtry: An interested party or someone having an interest is something that has been interpreted and continues to be interpreted by the courts; I suppose, for example, people who wish to be represented by counsel at a public inquiry. Interested parties; it’s usually interpreted to mean, and I can’t, off the top of my head, recall the precise definition, but people who have some substantial interest in the matter, is probably the best way to interpret what an interested party means. It usually has to do with a substantial, significant interest. Maybe I’ll be provided with a more precise definition.

In this particular section, I’m advised that an interest means a legal interest in relation to administration of estates. Obviously, executors would have a legal interest, or as I said a substantial interest. I’ll continue to read these definitions as they’re provided to me, Mr. Chairman.

It doesn’t mean someone who is a curiosity seeker. It involves someone who stands to benefit financially or otherwise by finding out the information. I don’t think I can assist the hon. member any further than that.

Ms. Bryden: Mr. Chairman, that might then be the difference between whether an adoptee seeking to find out about his parentage is a curiosity seeker or has something to gain.

Hon. Mr. McMurtry: Of course, it would depend on all of the circumstances. I guess it’s a matter that’s going to be for the discretion of the registrar general and hopefully it will be applied in a rational way.

Ms. Gigantes: I don’t know if this is the appropriate place to raise my question. It’s a question stemming from general ignorance on my part about the whole subject.

Can the Attorney General tell me what protection a woman has against the declaration by any man that he is the parent of the child she has borne?

Hon. Mr. McMurtry: The question has to do with whether somebody would have an interest in falsely claiming paternity. I could see where someone might be more interested in benefiting as the father of the child as opposed to establishing a relationship with the mother. This is another reason for not making this a public document. You don’t want to encourage people to file these statutory declarations in a frivolous way simply to embarrass the child or a mother.

It doesn’t give the man who files such a declaration any legal rights and it’s something that could only be used against him under section 9. But the purpose of the section is for people who feel they want to protect the child, people who, for any number of reasons do not want to make a public declaration but do want to protect the child with regard to any claim against the estate that might be made by the child.

I don’t have the answer as to what the results might be of somebody filing a declaration for some frivolous or malicious reason. My only reply is that it’s not a public document. lf it’s not going to be used against the individual who files, it wouldn’t be used any more seriously than somebody who wants to stand up in the city hall square and claim to be the father of Prince Charles. There’s nothing to prevent people from making ludicrous assertions. What we’re simply trying to do is provide a mechanism which will be to the benefit of children; which will have some legal effect, not in favour of the individual who files the declaration but may be used against him or his estate.

Section 12 agreed to.

Section 13 agreed to.

On section 14:

Mr. Deputy Chairman: Hon. Mr. McMurtry moves that section 14(1) of the bill be amended by striking out the words, “makes a finding of parentage or that is based upon a recognition of parentage,” in the fourth and fifth lines, and inserting in lieu thereof, “confirms or makes a finding of parentage.”

Hon. Mr. McMurtry: The purpose of the amendment is to make clear that the words, “based upon a recognition of parentage,” as used in the present bill, refer to a confirmation of parentage under section 4 of the bill and do not refer to orders based upon presumptions as set out in section 8 of the bill. It’s really just a matter of clarification.

Motion agreed to.

Section 14, as amended, agreed to.

Sections 15 to 26, inclusive, agreed to.

Bill 61, as amended, reported.


House in committee of the whole on Bill 62, An Act to revise the Marriage Act.

Section 1 to 6, inclusive, agreed to.

On section 7:

Mr. Deputy Chairman: Hon. Mr. McMurtry moves that section 7 of the bill be amended by striking out the word “is” in the third line; and inserting in lieu thereof, “lacks capacity to marry by reason of being.”

Hon. Mr. McMurtry: This proposed amendment is to satisfy certain persons who have made representation on behalf of the Association for the Mentally Retarded, indicating that they should not be deprived from having a licence issued, assuming they have the capacity. What we are trying to accomplish here, Mr. Chairman, is to deprive of a licence only people who lack capacity to marry. Again this would coincide or harmonize with the federal legislation in this respect, and make it clear that what we are dealing with here is a matter of capacity as opposed to a matter of mental retardation.

Mr. Roy: Mr. Chairman, I would certainly support that amendment. It is far more sensible than the way it read before. Before one could come to the conclusion that because of one being mentally ill, or even believed to be mentally ill or mentally defective, that that in itself was an impediment or an absolute bar to marriage. This is much more sensible, much more reflective of sensibilities of a particular group within our society, and I would applaud the amendment and support it.

Mr. Lawlor: I don’t know if it helps all that much, but if the association thinks it does, I bow. The point is that the issuer of a licence has to make some kind of estimation. I suppose if the applicant is staggering all over the office, he would say “come back tomorrow if you want to get married”; or if certain external conditions of the eyes or nose or throat indicate drug abuse -- whether that does, I am not sure; that’s the whole point. When is an issuer going to be able, except under very overt circumstances, to assess the situation?

I don’t see how that’s particularly rectified by this bill. Standing at a wicket, the issuer looks at the guy, and the guy starts to talk, or the woman, and they start to speak in somewhat bizarre fashion. They may be exhilarated at the thought of getting married or something but in any event --

Ms. Gigantes: Drunk with happiness.

Mr. Lawlor: -- they speak perhaps a little like I do in this House --

Mr. Roy: I thought you were speaking about a personal experience.

Mr. Lawlor: Who would know just what’s going on inside there?

Hon. Mr. McMurtry: Good thing you are already married.

Mr. Lawlor: It gives me pause on occasion, and I am privy to the fact. Who am I to judge? The thing was the stigmatization of an individual as being mentally ill and being judged by someone who is incompetent on their side of the fence to know whether they are or not, and refusing the licence in these circumstances. That was the problem, and the problem, as far as I can see, remains -- modified, swaddled, but there it is.

Motion agreed to.

Section 7, as amended, agreed to.

Section 8 agreed to.

On section 9:

Mr. Roy: Mr. Chairman, on section 9 in the context of this Act, as compared to the Divorce Act, I am trying to understand how, looking at the section, if one alleges that a spouse has been absent for at least seven years -- I suppose that the point I want to make to the Attorney General is that under a section of the Divorce Act separation for a period of three or five years is grounds for divorce. I am just wondering at the duplication. I wonder if that has been looked at by your officials. Are you not in a position of having two remedies should the spouse be deemed to be absent? You know, this now happens more and more in society. Couples are coming forward and saying, I haven’t heard from her or from him for three, four or five years.

The procedure under this section seems to be much more summary than the procedure under the Divorce Act, where one would have to go through the divorce procedure.

I am not saying that is necessarily a bad thing. Under the Divorce Act, one has to go through the whole procedure of issuing a petition and then publishing it and that whole rigmarole. Yet, a judge can crank out 75 divorces in one morning. It is pretty much a rubber-stamping operation in any event, but this appears to be a much more summary procedure.

Hon. Mr. McMurtry: Surely it’s desirable.

Mr. Roy: Yes, I would think it is desirable to have it. I suppose it’s not the first time where an individual, faced with a particular problem, has had more than one way to remedy the situation, both at the federal level under the Divorce Act and under what we call the Marriage Act. I am wondering whether that was kept in mind and whether we are passing this section because the procedure under the Divorce Act is too cumbersome.

Hon. Mr. McMurtry: Mr. Chairman, certainly it is desirable that for a party who for very good reasons, perhaps for religious convictions, may not want to get a divorce, this remedy should be open to them. As has been pointed out by the member for Ottawa East, this is a much less cumbersome method of obtaining a declaration or an order which will simply not annul a marriage -- because we have no constitutional authority to pass such legislation -- but will allow a person to marry again without the fear of committing bigamy.

Really, what we are dealing with here, I suppose, is a situation where this legislation is restricted to the issuance of a licence only. I suppose a party would want to consider whether there will be satisfaction with this relatively summary relief, which only allows them to obtain a licence and get married. If a person proceeds under this legislation, and the first spouse reappears, then that second marriage would be deemed to be void. So in certain circumstances it might be desirable for an individual to go under the provisions of the Divorce Act. It really is an alternative way of proceeding where a person is reasonably satisfied that the spouse is in fact dead. As I understand the law, the first marriage would still be considered to be in force if the spouse reappeared.

Mr. Roy: That is what bothers me in today’s society; that an order can be given -- if that is what you are saying -- by the court, saying: “We are now making a presumption that the spouse is dead.” One remarries and then the first spouse appears and the second marriage is considered void. Is that what you’re saying if one proceeded under this section of the Act?

Hon. Mr. McMurtry: It’s my understanding that it’s only a presumption and a rebuttable presumption. Obviously a presumption of death must be a rebuttable presumption, if the person presumed dead reappears on the scene.

Mr. Roy: That’s just the point. I suppose any lawyer worth his salt will say, “I think the safest method to proceed is probably under the Divorce Act.” You’re saying some people’s religion may be an impediment to proceeding by way of divorce, although that’s becoming less and less a factor. I just found it interesting, reading that section referring to when a married person whose spouse is missing alleges that the spouse has been continually absent for at least seven years. It happens quite often that a spouse is absent.

Hon. Mr. McMurtry: A long holiday.

Mr. Roy: One takes a summary motion, under this. You get a situation where the spouse, now having been absent for seven years, is presumed dead and then reappears. Of course there’s a problem. The marriage he has gone through is now no longer valid. I would suggest that an individual who was faced with that problem would be a lot safer to proceed under the Divorce Act, because at that point there is no question about whether the spouse reappears. It’s a very common situation where you have people coming into law offices saying, “I don’t know where he or she is. I haven’t seen him for five, seven or 10 years,” or whatever.

I appreciate that this summary fashion is more expeditious, but from a practical point of view it just appears to me that you’re allowing something to be done which sometimes in the long term is not that practical.

Hon. Mr. McMurtry: I should just point out to the members that this is not new. As I understand it, it’s in the present Act. To this extent we’re just incorporating it. The only reason for this section 9 is to provide an alternative. As the member for Ottawa East points out, it is not a totally satisfactory alternative. Perhaps it is a risky alternative, but it is one that is available for people who simply do not desire a divorce.

Mr. Roy: I would make a suggestion to Attorneys General down the line. I can’t presume you’re going to be Attorney General during that length of time, but presuming you are, or presuming some of my colleagues here are, it appears to me the situation will change, if they do the amendments that are proposed on the long term on divorce, that is to make it simpler, and based on the question of marriage breakdown for whatever reason, so that we get away from the situation of having to go through a petition and the whole thing, and take it away from the judges. As I mentioned to the Attorney General, it appears to me that it’s pretty much a rubber-stamping operation.

If a judge can go through 70 to 75 divorces a day, he’s hardly getting into the evidence at all. If the procedure to get a divorce becomes much simpler, this type of legislation, in my opinion, would not be necessary. What I’m trying to say is that we should not get involved with legislation which somewhere down the road may backfire on the individual. In other words, we shouldn’t open a door for him which further down the road may well close on his face.

We shouldn’t be presuming people are dead who in fact are not dead. We shouldn’t be allowing someone to get involved in a form of marriage which very shortly down the line may be declared invalid. That’s all I’m saying.

Section 9 agreed to.

Sections 10 to 38, inclusive, agreed to.

Bill 62 as amended, reported.



House in committee of the whole on Bill 65, An Act to amend the Surrogate Courts Act.

Sections 1 to 3, inclusive, agreed to.

On section 4:

Mr. Lawlor: I had a discussion with one of the most distinguished members of the bar. I didn’t understand a single word he said. However, I am not pressing the amendment that I originally brought before the House.

Apparently, just to be a little more sensible, there is a committee that is sitting with respect to the surrogate court devising the rules. What I was proposing more or less was retention of the existing inventory or what I thought was actually preferable, namely a more extended and detailed inventory rather than a lesser inventory, because of the very stern strictures that are exercised in that particular court.

We are speaking of a will, after all. The individual who made it is dead and can’t speak for himself; so the judiciary and the court officers pay very close attention to every jot and tittle that comes before them. Even those highly equipped in this field who do nothing else but this kind of surrogate court work almost invariably have all their documents returned to them for some amendment, et cetera, or some nicety of wording.

Since that is the case, I suspect it is better not to move in where angels wouldn’t tread and to let the regulations as they proceed govern the situation. When they come out, as a result of the report of this particular committee, we will have a chance to peruse them and we will take it from there.

Hon. Mr. McMurtry: I think that is a good suggestion. If we are not satisfied with the rules and regulations, we can certainly consider an amendment.

Mr. Sargent: The Attorney General is scoring already.

Hon. Mr. McMurtry: Obviously there are occasions whereby it is in the beneficiaries’ interests to compel a detailed inventory.

Section 4 agreed to.

Sections 5 to 8, inclusive, agreed to.

Bill 65 reported.

On motion by Hon. Mr. McMurtry, the committee of the whole House reported three bills with amendments and one bill without amendment.


The following bills were given third reading on motion:

Bill 60, An Act to reform the Law respecting Succession to the Estates of Deceased Persons.

Bill 61, An Act to reform the Law respecting the Status of Children.

Bill 62, An Act to revise the Marriage Act.

Bill 65, An Act to amend the Surrogate Courts Act.

Mr. Speaker: The hon. member for Durham East (Mr. Cureatz) is required to introduce his bill today for debate in two weeks’ time. The member is therefore seeking unanimous consent to revert to introduction of bills. Is it agreed?




Mr. Cureatz moved first reading of Bill 89, An Act to amend the Planning Act.

Motion agreed to.

Mr. Cureatz: Mr. Speaker, in regard to my private member’s bill I will reserve my comments until the introduction on a Thursday in two weeks’ time.



Mr. Ashe, on behalf of Hon. Mr. McKeough, moved second reading of Bill 40, An Act to amend the Municipal Act.

Mr. Ashe: The proposed amendments to the Municipal Act add two further types of money bylaws to the list of money bylaws which do not require the consent of the electorate. These are bylaws for acquiring land for housing purposes and bylaws for the construction and reconstruction of highway pavements and bridges. In addition, it is proposed that when a property owner makes partial payment towards tax arrears, payments shall first be applied to the interest or percentage charges, then towards that part of the taxes longest overdue.

At the request of the municipalities, we are broadening the per diem system of remuneration for members of council. In that regard, Mr. Speaker, after approval of second reading I will be moving that we proceed into committee of the whole House to consider further amendments to section 2 and section 6 regarding the per diems; and also to transfer certain provisions from the Municipal Elections Act to the Municipal Act.

Mr. Swart: Mr. Speaker, I rise to say that in general I and my party support these amendments to the Municipal Act. Most of them, in fact I guess all of them, are rather minor amendments, and they are desirable amendments. However, there are a couple of them on which I want to make a few comments.

The amendment which is being proposed by the parliamentary assistant refers to the Municipal Elections Act, 1977. That’s where the amendment is to add section 47 to the Municipal Act. Subsection 1 states in the last part of the paragraph: “And a new election shall be held in accordance with the provisions of the Municipal Elections Act, 1977.”

We have no disagreement with the principles of that amendment, but it seems rather strange that it’s going to be subject to the Municipal Elections Act, which has not yet been dealt with in this House. Therefore, for that reason alone, I would suggest that the committee stage of this bill should not take place until after we deal with the Municipal Elections Act so we know what is in the Municipal Elections Act.

As the parliamentary assistant probably knows, I have some 20 to 25 amendments to move to the Municipal Elections Act, and it seems to me that this House should deal with that elections Act and decide on it before another Act is subject to it. So this seems in reverse, and I would ask that the committee stage of this bill not proceed at the present time. I would suggest that there is no more urgency for it to proceed to committee stage now than there is with the Municipal Elections Act; in fact, much less reason.

The second item that I want to discuss, briefly, is section 7, which makes it possible for a municipality to spread the payments for road-making machinery over a period of 10 years rather than five as at the present time. What we in this party object to is the retention within the Act of the five-year limitation for purchasing machinery and appliances for the purpose of the corporation.

We think that is an unrealistic restriction to leave in the Act in this day and age. Appliances can amount, I suppose, to a few hundred dollars, and appliances can now also amount to several hundreds of thousands of dollars if we’re talking about computers. In addition to that, there is the custom now -- and I think it is a very desirable custom in municipalities -- where they will group together a number of expenditures which are subject to debenture. One of those might be an appliance and, therefore, they would have to pull it out, whereas the whole package should be dealt with in the one debenture.

If there is concern on the part of the parliamentary assistant or the Treasurer and the Minister of Intergovernmental Affairs (Mr. McKeough) -- a concern which I don’t share, incidentally -- that municipalities somehow or other won’t be responsible, that they will debenture small things over too long a period of time, there is now a section of the Municipal Act which covers that, section 288. It provides for limitations on the length of debentures for various things, and, as a matter of fact, the subsection (c) of section 288 states that it shall be made payable if it is for the purchase of road-making machinery and appliances, in five years. So, in fact, that is already in the Act, and we don’t need another amendment here. We simply need to take out that section.

But the final subsection there, subsection (d), gives the necessary protection, where it says if the debt is for any other purpose, “in such term of years that the Municipal Board may approve.” I suggest that to leave in the five years is a bit of paternalism that municipalities don’t really need in this day and age.

That other section of the Act is surely sufficient to give any protection that is deemed necessary by the government of this province. To leave in this five-year clause is an insult -- maybe a small one but still an insult -- to local government in this province. Therefore, we will be moving in the committee stage an amendment to change that, to delete the (b) section of that, and take out the five-year term in the (c) section so that the municipalities will be able to operate under section 288 of the Act.


It is, of course, necessary -- and I would agree with the parliamentary assistant -- to have a clause in there, because that is the clause which authorizes a municipality to conclude those kind of agreements and make those kind of purchases. But to say to them, on these things: “How do we determine what is an appliance?” To say that somehow or other we’re going to watch over their shoulder to see that they don’t debenture something for 10 years which we think should be debentured only for five, is a degree of supervision that is not necessary to municipalities at this period of time and this period of sophistication.

I would suggest that this bill go to the committee, as of course it will, but ask that consideration of this bill be postponed in committee hearings at this time until we deal with the Municipal Elections Act. If that is not acceptable to the parliamentary assistant, would he consider postponing it for a very short period of time, if for no other reason than that I have to catch a train and leave here in about 10 minutes. Obviously, I’d like to be here to deal with the amendment.

Mr. Ruston: When the House is open, you’re supposed to be here.

Mr. Epp: Mr. Speaker, I would have thought that the member who just preceded me would have had his own plane waiting for him; but I guess not today, maybe one of his colleagues has it.

Mr. Foulds: Not government yet; next time around.

Mr. Swart: I’m not Eddy Sargent.

Mr. Epp: Thank goodness. Mr. Speaker, I rise to give support to this bill in principle. I’m cognizant of the amendment the member has made to this bill. I would like to hear a response from the parliamentary assistant to the Treasurer, giving reasons why the five-year limit is included. We feel this and other Acts should be streamlined to eliminate items like five-year limitations and so forth, which are unnecessary. It’s going to take civil servants a few days to work on these things and check municipalities. We feel that municipalities should have as much autonomy as possible. I would like to hear a good reason why it should be included.

I’d like to draw the parliamentary assistant’s attention to section 388(1)(b), as set out in section 6 of the bill, where it says: “A bylaw passed pursuant to this clause may define a class or classes of meetings in respect of which a per diem rate may be paid and may authorize payment of a per diem rate only in respect of such class or classes of meetings.”

Where possible we should not have per diem rates. People should be paid on an annual basis, whether it’s $200 or $4,000 or something of this nature, instead of giving them reasons to call meetings merely to collect $35 or $100. I know that’s being done by people across the province who are having very short meetings, a half-hour or an hour, and collecting their per diem rate. The ministry should seriously look at this and try and correct the problem.

Another solution might be to give members of committees an annual fee, deducting a certain amount if they are absent for more than 20 per cent of the meetings. That’s a much more equitable way of approaching matters, rather than paying them on a per diem basis. There are a number of other items for which we think amendments are long overdue. We will support this bill and await the comments by the parliamentary assistant regarding the item the member for Welland-Thorold has raised.

Mr. Ashe: Mr. Speaker, I appreciate the comments from the hon. member for Waterloo North and I will attempt to answer some of the concerns brought forward by the hon. member for Welland-Thorold.

There’s no doubt as to what he indicates relating to the Municipal Elections Act, 1977. As the House is quite aware, it has only received first reading and will, hopefully, be discussed in second reading one week from today.

We don’t really see any problem in leaving it as it is, albeit for a temporary period of time there is somewhat of a duplication. But if that is really the theoretical problem that the hon. member has with reference to the Municipal Elections Act, 1977, we would have no problem changing that in committee to read: “the Municipal Elections Act, 1972,” so that when the amendment is made it becomes “the Municipal Elections Act, 1977” next week. I understand that it will automatically apply in any event, so I don’t think that’s really a valid reason why second reading and approval, hopefully, in committee can’t go forward today.

Mr. Foulds: There is no committee today. It’s not on the House leader’s order of business.

Mr. Ashe: I thought it was. I guess I got some wrong information.

In any event, as far as the reference to section 288 and 455 is concerned, may I point out, please, that the two sections really do not speak exactly to the same issue. I find it somewhat inconsistent, and the hon. member for Welland-Thorold agrees. Specifically identifying a period of time, as in section 288, of 10 years and then saying, under section 455, there should be no time period referred to at all, is somewhat inconsistent.

We think, there should be some relevance and some fiscal and financial responsibility that is identified in that particular section. On the actual differences in the sections, albeit they are referring to road-making equipment and appliances section 455 also deals with lease purchase arrangements which are not dealt with in section 288. So, although they do refer to road-making equipment in its broadest sense, section 455 goes into an area that is not referred to in section 288. Therefore, the point made by the hon. member for Welland-Thorold that section 288 would apply in the reference of 10 years, we do not feel that that is so. Hence, we feel that the proposal for the amendment to section 455 as proposed should be, and hopefully will be, passed by this august body.

I might also point out that the amendment proposed --

Mr. Warner: Is that the only time you sit here?

Mr. Ashe: -- by the hon. member for Welland-Thorold in itself is somewhat ambiguous. It would leave us, with the approval of that particular motion, with a section 451(1) that reads, “subject to subsection 2,” when his own proposed amendment proposes eliminating subsection 2.

Mr. Swart: We have changed that. There will be an amendment tabled.

Mr. Ashe: There hasn’t been much foresight in that particular motion. So we would hope that the members of the Legislature would consider those observations when we come to committee and see the relevance and the appropriateness of leaving the two references to the five and 10 years in section 455.

Motion agreed to.

Ordered for committee of the whole.


Hon. Mr. McMurtry moved second reading of Bill 77, An Act to amend the Judicature Act.

Mr. Deputy Speaker: Does the hon. minister have any opening statement?

Hon. Mr. McMurtry: No, I have nothing to add to what I said on the introduction of the bill.

Mr. Roy: We are faced this afternoon with a series of amendments to the Provincial Courts Act, the County Judges Act, the Judicature Act and the Small Claims Courts Act. This first bill, Bill 77, is another amendment to the Judicature Act. I will have some more pertinent comments when we get into some of the legislation, especially the Provincial Courts Act and the Small Claims Court Act. I should start off by being the nice fellow and congratulating the minister on bringing forward the amendments under Bill 77.

For some time now, many of us have called for a more reasonable rate of interest on judgements allowed by the courts. We felt that the rates allowed under the Judicature Act -- I think it was five or seven per cent -- was ridiculous in today’s world. The inflationary spiral has affected everyone, I suppose, except litigants who were faced with the constraints of the Judicature Act.

Because of the low interest rate on judgements, there was an incentive on the part of certain litigants, especially as the amount of the judgement kept getting bigger and the litigant was the one who had the finances to pay for litigation, to drag out litigation. With the low award of interest, the cost of litigation would have been less than the cost of the interest that could have been made on this money pending the outcome of the litigation. In other words, one could seriously protract settlement of a case for quite a period of time without fear that the interest would in fact penalize him.

In the compendium that came with this legislation it says that high commercial rates of interest make it extremely profitable for a defendant to delay judgement. In other words, unreasonable delays in obtaining judgement or settlement are very often extremely unfair to plaintiffs. We have talked about this for some time in the House and I am pleased to see the Attorney General and his officials have responded to that by bringing in legislation which conforms with what happens out there in society.

In other words, this is legislation which responds to the commercial needs of a province, of a jurisdiction, which certainly is not operating in a vacuum. The courts and the laws must be responding and must in a sense be the reflection of what is going on in the commercial world.

I am extremely pleased to see these amendments come forward. Now the rate of interest will be considered the prime rate. In my opinion that is only reasonable. I am only sorry that it took so long to see it come forward. Having the legislation before us, I want to say to the Attorney General that we are very pleased to support this amendment.


The other amendment which I find extremely satisfying as well is what is called prejudgement interest. I would hope because of the passage of this type of legislation we will again avoid unnecessary litigation. Where it is going to be important, if I may cite some examples, is especially in motor vehicle cases where you don’t have a liquidated amount of damages. You often had a situation where it was to the advantage of the defendant -- always represented by an insurance company of course -- because of the low rate of interest, to start with, and because of the fact that there was no prejudgement interest, to delay the settlement of a particular case as long as possible and very often to settle at the courtroom door just prior to trial.

For instance, let’s say you had a possibility of obtaining a judgement of $50,000; you felt as a litigant that your general damages and so would be about $50,000. If the defendant, through his insurance company, effectively delayed this for two or three years and he was getting interest on his money at 10 or 12 per cent or perhaps a higher percentage, which over that period of time might well amount to $15,000, he was making money. In other words, it was more profitable for him to delay it as long as possible.

The incentive, rather than being for him to settle the action, was for him to drag out the action at least up to the courtroom door, because the costs really start adding up once you get inside the courtroom on trial day. That’s when the major amount of the accumulated costs will hurt him -- at the courtroom door. The costs even in one of these actions dragging for two or three years, would be much less than the interest he earned on the money he didn’t pay.

We have always felt -- and I am glad to see the ministry taking the initiative on this -- that this was a disincentive to settlement. We feel that this is the type of legislation that we hope will encourage settlement because of this prejudgement interest.

The legislation is made in such a way that there is some flexibility or discretion in the court in awarding interest on these amounts. Again, depending on the type of situation it is, we must retain a certain amount of discretion in the court. There cannot be a hard and fast rule.

I am sure the Attorney General realizes, as we have pointed out to him often enough -- and I think very few people in this province don’t realize it -- that one of the problems in our courts is the case flow. The high volume of litigation that is taking place is bogging down our courts.

Very often it was laws such as this that encouraged this type of litigation. The passage of this type of legislation, one hopes, will represent another small effort on the part of those of us who are making the laws to try to encourage settlement and to avoid duplication and unnecessary litigation.

It is ironic that this package of legislation makes sense on the one hand in that we are trying to bring forward legislation to avoid litigation. On the other hand, in the other bills that will follow here we are appointing more judges. The answer in the long term -- and I think the Ministry of the Attorney General realizes it -- is not for us to keep adding bodies and having more judges sitting in our courts; the answer has got to be laws which are responsive and which encourage settlement and encourage parties to resolve their own disputes. That is why I am pleased to see Bill 77 presented to the House.

In my opinion this type of legislation will put a certain amount of pressure on litigants to solve their problems and to settle their cases. Too often -- and you hear it from judges -- people clog up the process and the courts, not only at the trial stage but also at the preliminary stage where motions are brought for one matter or another.

I am very pleased that at least we here are talking certain steps to avoid encouraging litigants. We should see more legislation of this nature, legislation which will encourage people to solve their own problems so that when they go to see their lawyer there are attempts to resolve their own disputes and settle their cases without unnecessary litigation.

We on this side are pleased to see this legislation. We’ve called for it in the past and we will wholeheartedly support it.

Mr. Lawlor: What my friend has just said is very much to the point and perceptive in the range. It’s not going to make any monumental changes. All the legislation we’re going to have before us this afternoon and this evening, I suspect, will do little to cut costs. Perhaps in some areas it will a bit.

But it will streamline the process just a little bit, while we are waiting upon Williston’s report upon matters of that kind, and cut out some long-lasting anomalies. Anomalies are blockades. They block progress and they add to the costs of litigation because the lawyer, first of all, wants to get paid for knowing where the tricks of the trade are, et cetera, and the modes of drafting. Therefore, it does increase the bill. To get rid of a number of things which we’ll discuss, for instance, the distinction between chambers motions and court motions, which are done in different ways and which I will discuss in a few moments, are necessarily all to the good.

Before commenting on this legislation, let me first say that in all of the bills before us today -- I think all -- we have received compendia. This is a fairly new thing. We have some with respect to the family law that was discussed earlier. The Attorney General is now supplying this background analytical material. We’ve had not a great deal of time to ingest, digest and, if you will, spew out the rather massive quantity of stuff, closely packed with legal reasoning with respect to the various points at issue in the legislation. It’s devoutly to be welcomed and I commend his staff or whoever it is doing this work.

In previous times in this House we hadn’t such a document. We went and did the work on our own completely. While we still do that, this really is a help. It’s too bad the profession at large wouldn’t be privy to documentation and the type of analyses of extant law and the reasons for changing it that obtain in the documents that have been sent over to us in the past few days.

The first matter deserving of mention here is this business of the interest rates, particularly on prejudgements, what interest will run prior to a judgement being reached in the courts. That has been for a long time a thorny issue. We have before us a 27-page compendium of the various thoughts and alternatives in other jurisdictions as far away as Australia, but particularly of the British. We have rejected the British solution on most counts. We’ve adopted, I think, a somewhat more rational and beneficial solution on count after count.

There is a division to be made as to this interest, but the first point is that they go for prime rate. That fluctuates and that is going to be based upon a Bank of Canada statement, I believe, of the month before, whereas now we have a fixed interest rate concept which is much too low. As has been pointed out, with a low fixed interest rate, it’s to the benefit of a defendant to delay and delay an action, to snarl up the courts, to have an enormous backlog awaiting trial and not wanting it to go on, using every trick in the book to escape judgement because he can use this money in the meantime. He would be paying out at five per cent and he can be lending, I suppose, at 24 -- certainly at 12 -- without any difficulty. So it’s all in his own interest to play it out.

The other way around it is interesting. If the interest were too high it very well might be in the interest of the plaintiff to delay the proceedings. What is sought here is some kind of medium, some kind of objective criterion which will never be too high nor too low, based upon the prime rate to those best borrowers that the chartered banks and lenders accord to those particular customers, and working it off that particular base.

Having reached that there is the problem of how is this to be calculated, at what date does this interest start to run? When the cause of action started? Or what would the date be? And the bill embodies a distinction, a principle between liquidated damages being largely those arising out of a contract, where the amount that someone owes is calculated. It is in black and white, or easily reached. On that basis the interest will run from the date that the cause of action arose and will run to the date of judgement.

On unliquidated claims, mostly tort claims, personal injury claims, et cetera, where you can’t set a quantum without calculations and without a determination -- a different date, that is, a date where the person entitled to the money gave notice in writing of his claim to the person liable therefor. That is kind of a compromise solution, or maybe you simply say it is a third possibility.

To give some notion of the quality of documentation we are being given leading into this legislation I just want to read a paragraph at page 15 of the minister’s compendia: “If interest began to run in cases involving unliquidated damages from the date of the service of the writ, the notification of the defendant prior to the accrual of interest again him, would be ensured. This solution has been legislative in South Australia. It also applies in England by virtue of a judicial guideline, established by the Court of Appeal in the case of Jefford versus Gee. The primary criticism of this date, for the commencement of interest, is that it forces the plaintiff to initiate court proceedings to preserve his right to interest. In the vast majority of cases settlement is made without a writ being issued.”

In other words you don’t clog up the courts. You do everything in your power to keep the matter out of the courts, subject to settlement and do an act that is no inducement within the rules of those very courts to attract unnecessary litigation. This provision might unnecessarily increase the administrative costs to the courts, as plaintiffs would initiate proceedings to ensure their right to interest.

In 1975 the Highway Traffic Act, the Fatal Accidents Act, and the Trustee Act, were amended to extend from one year to the period available to a plaintiff in a personal injury case to initiate action. More, the purpose of this amendment was to facilitate settlement without the issuance of unnecessary writs. The date on which a defendant is notified in writing of the claim would seem to be an appropriate, normal date from which interest should run where unliquidated damages are involved. Where a writ was issued and served, this would serve as the notification. The notification may be given by letter or by any other number of means, and settled in that particular way.

When we get into committee we can go more deeply into all the nice, distinctive, situations touching this interest. For instance, should interest accrue to special damages? How do you balance it off? By a nice calculation the minister has done it on a six-month basis as those special damages accumulate -- as opposed to general damages, damages for pain and suffering say. Then there are circumstances in which interest ought not to be awarded. And some of them are very intriguing indeed. The subtlety that goes into this legislation wins at least my very considerable regard. Finally, the judge is left to make up his mind as to whether or not interest will be levied in a broad discretionary way.


The second area in which this legislation is breaking new ground has to do with lis pendens and cautions. The Judicature Act, section 42, leaves much to be desired as it is now because of the way in which the sections have been interpreted in the past.

For instance, someone -- and lawyers have been known to do this -- can frivolously or maliciously slap a lis pendens, a document which comes to the court and puts a title on land you may own, tying you all up, and there’s not a thing you can do about it. You can move before the court and have it vacated, but the judge probably would not be able on your evidence or affidavit alone, to do that ex parte or even with the other lawyer. He would have to direct an issue and send it off for trial. Meantime, he’s got you hog-tied. People do this fairly often, particularly people who are chagrined over the loss of a real estate transaction or a business deal. “I’ll just tie him up,” they say.

Curiously enough, our law is such that there are no damages. There’s nothing you can do about it. You can’t sue him as a result of his action and if you’ve lost a good transaction because somebody has pulled that trick on you, there is no sanction and no way of rectifying the very considerable monetary loss individuals suffer in this particular case.

It’s done fairly often, and I know some lawyers who, if they’re unhappy with you, will slap you with a lis pendens, or as it’s called in the land titles office, a caution, although in land titles there is provision under that Act, and this is another anomaly, that you can sue for damages if it’s proven to be unmerited and not to have weight. So try to bring the two rules together. The amendments, substantial amendments, are being made to the Judicature Act in this particular regard.

Again I just want to make mention of the compendium supplied to us under this heading to show precisely what is involved. By virtue of rule 30-22 of the rules of practice, a certificate of lis pendens is no longer issued as of right and can only be obtained by leave of the court. The application for leave to issue the certificate may be brought ex parte -- that is without the other side being present -- and is heard by a judge in the county court and by a master in the Supreme Court, although there are formal requirements that must be fulfilled to obtain a certificate, such as the need to include a claim to an interest in land in the writ -- and that’s not too difficult usually.

In practice, the inquiry before the issuance of a certificate is brief and complete reliance is placed upon the supporting affidavit of the plaintiff’s solicitor. I suppose it could go farther and include the affidavit of other people besides that.

The issuer of the certificate does not have the power to inquire into the merits of the case. It’s a carte blanche; if the affidavit looks good on its face, no inquiry behind it is made. The certificate issues from the court. There is a final sentence here: “There is no effective remedy in damages where the certificate is issued under the Registry Act.” That is an area where changes are being made under the revision to the Judicature Act.

The next area of importance under this legislation has to do with the abolition of the distinction between chambers and court motions. Sometimes when legislation comes to us, as this afternoon, you pause and you climb up on the little balcony, and you look over the landscape and you say, “Why on earth wasn’t this done a long time ago?” The legislation is so coercive in its intelligence as to meet absolutely no resistance. And yet, the situation has gone on for five generations and developed.

In the Law Reform Commission report on the administration of the courts, part I, page 199 -- and prior thereto, of course -- some of the distinctions as between these two kinds of motions are set forth and discussed. I’ll read from a paragraph in that regard:

“In order that the foregoing enumeration of differences between proceedings held in court and those held in chambers may appear in its proper perspective, the observation may be made that apart from such formal differences as the day of the week on which the motion is returnable, the requirement as to the wearing of a gown -- both of these differences applying only in the case of motions heard in Toronto -- and the form of the notice of motion and the order, there is usually no practical difference in the way in which contested court and chamber matters are brought and heard in the Supreme Court.”

But nevertheless, various different consequences flow from the fact that it is heard one way of the other. Certainly dire consequences flow if you start your motion in the weekly court office in Toronto, when you should have done it in chambers. The whole thing is a nullity and you have to start all over. Or vice versa. That has hung up many a solicitor.

I don’t know how they siphon off the costs of these things -- the time spent, notices drawn, affidavits prepared, appearances made. I suspect the client, one way or the other, is mulcted in costs as a result of that. A simple technicality, which you would have thought the circumlocution office in Bleak House would have wiped out a half a century ago. If you watch the story of Charles Dickens on late night television, as I often do on Sunday nights, you may have seen an episode which dealt with this. Dickens, of course, was particularly overwrought, because he wasn’t a lawyer. If you are, you become somewhat accustomed to living with these things.

That is a major change being advocated, which I think is more properly discussed in depth in committee.

The business of appeals is very interesting. That’s being modified in this legislation. The notes that the hon. minister has given us are that, “under section 6 (2) of the Judicial Review Procedure Act, a judge of the high court is given jurisdiction to hear an application for a judicial review where he grants leave on a case of emergency and where application to the divisional court is likely to involve a failure of justice. It became obvious that it was counterproductive to allow an appeal to the divisional court and a further appeal to the Court of Appeal” -- after all, they’re the same judges -- “after it was heard by a single judge on the basis of an emergency. As a result, section 6 (4) of the Judicial Review Procedure Act was amended in 1976 to make the appeal directly to the Court of Appeal, with leave of the Court of Appeal.

“However, the presence of section 17(1)(c),” the one that’s being changed now, “of the Judicature Act was overlooked.” Splendid as our counsel is, as searching and mole-like on occasion, even with many of the people in the Attorney General’s department sifting through all these interleaving layers of the law, they missed it. You know, it makes me feel bad; even the opposition critics missed it.

Hon. Mr. McMurtry: Most surprising.

Mr. Lawlor: I know you can hardly place credence in that, but it happens sometimes, and here it is. “As a consequence, the two provisions are contradictory. In such cases, the latter provision would prevail, but to avoid confusion, section 71 (c) should be repealed,” and so it is being done.

I won’t take a great deal more time on this particular legislation except to mention the council of judges of the Supreme Court. The Supreme Court has been expanded in some of the legislation to 52 judges, I believe. Some of the legislation we have here today is no longer becoming the college of cardinals it once was.

Hon. Mr. McMurtry: Don’t tell them that.

Mr. Lawlor: They can’t consort in the corridors without blocking the way. Gradually the theory of collegiality is being warped by the sheer pressure of events and the necessity to appoint more judges to erode the backlog of cases we have. So, they come to the impasse at this stage where they feel that a committee of the judges, for the purposes of the judicial council, would have to be formed to meet from time to time and, as any committee does. report back to the main body, which would convene at least twice a year. The thing is becoming unwieldy and top-heavy at this particular point.

This, you see, is a new move within that particular structure of the courts in order to get something done. It may appear to be a fairly slight piece of legislation but it has a great deal of matter, indeed. Of course we won’t oppose it. We’re all in favour.

Mr. Bolan: I would like to address myself to certain features of these proposed amendments. Generally speaking, I think the amendments are quite sound. Of course, it can always be said that they should have been brought in many years ago, for that matter. Nevertheless, what with the erosion of time, one learns about our sins of omission of the past and we eventually try to rectify them.

The benefit with respect to increasing the interest on judgements and pegging the interest on a judgement in the manner as set out in the suggested amendment is quite sound and speaks for itself and, really, is not deserving of any more comment.

I think that the significant effect on the prejudgement interest will have to do in the field of litigation, primarily with insurance claims.

As you know, Mr. Speaker, often a claim is commenced for large sums of money, although it is an unliquidated claim at that particular time because the damages have not yet been ascertained. Insurance companies have been known, in the past, to drag their feet when it comes to settling these claims because they know that as long as the money is still in the till, they can keep on lending out that money or doing whatever it is they do with it. I think that when they come to realize, through this proposed legislation, there is no real purpose in delays, because they will still have to pay the interest, then many of the problems we face today, such as the significant clogging of our courts for various reasons -- one of which may be the fact that there is quite a bit of foot-dragging by insurance companies on their claims -- will lessen. So I think that is one of the significant aspects of this particular amendment.

When I first saw the part of the bill dealing with the discretion of judges in allowing or disallowing increases in the interest rate, I sort of raised an eyebrow at it. However, on reflection, I think it is sound if. for no other reason, than the judge will be able, through this section, to penalize one of the offending parties to the litigation, if there is one, and if there is any foot-dragging relating to it. If a defendant, or for that matter a plaintiff, has done something in the course of his action which either delays the proceedings or does something to prevent it from coming to court in due course, the presiding judge will be able to use his discretion to either lower the interest rate or increase it.


I heard with great interest the comments made with respect to cautions and lis pendens. It’s quite ironic -- I just had a lis pendens placed last week on a property in the Parry Sound district. Although I followed the proper procedure and the proper form, it reminded me once again of how easy it is to tie up a person’s land. I certainly agree with the suggestions made by the previous speaker.

Generally speaking, these are sound amendments. Again, we will be able to get into some of the finer points of it. I do have some concern about the exclusions under which interest will not be allowed. However, we will be able to deal with those in their proper context.

Hon. Mr. McMurtry: Mr. Speaker, I don’t think I can add anything to the endorsements we have heard from the members opposite in relation to the principles of the legislation and their support of those principles, which of course, I welcome.

Motion agreed to.

Ordered for committee of the whole house.


Hon. Mr. McMurtry moved second reading of Bill 78, An Act to amend the County Judges Act.

Mr. Deputy Speaker: Does the hon. minister have any opening statement?

Hon. Mr. McMurtry: I have nothing to add to what I said when I introduced the bill. These are relatively small but important housekeeping amendments. During the past two years, I have come to better appreciate the very extensive duties incumbent on a chief judge. From my own personal experience, I think the request for the appointment of an associate chief judge is warranted by the circumstances, considering particularly the size of this province and the geographical land mass over which our county court judges are spread.

Mr. Roy: This bill and the following Bill 79 are just bills, basically. Bill 78 only makes provision for the associate chief judge of county and district courts. Bill 79 talks about the Chief Justice and Chief Judge of the High Court and the appointment of more judges at the High Court level. Sure, this type of legislation is necessary. It creates a new associate and calls him associate chief judge, but I notice in the legislation that the chief judge has rank and precedence over all other judges. After the associate chief judge, the junior judges, the supernumerary judges, have rank and precedence among themselves, according to seniority of appointment.

I find this interesting. I suppose that’s part of the system. It’s important to people to have rank and to sit higher on the bench and that sort of thing. Possibly I don’t realize the significance of the whole process, but I just can’t get overly excited about this. All I can say is that it is probably necessary. Certainly we will not oppose it.

When I see all our problems in the courts -- and possibly we’ll get into that when we get to the estimates, hopefully next week -- and I see the delays; I see the lack of efficiency; I see the lack of a case-flow process to get these cases out. I see we are appointing more people -- competent people, these judges, and in my opinion the appointments are getting better and better all the time -- we are appointing these judges to judge because of their background, because of their expertise. We just pick the best people; the salaries have been increased substantially over the last while, and hopefully we are appointing the best people to judge.

What concerns me is that very often these very competent judges end up involved in administration. They are doing something that somebody else should be doing -- which judge sits where; how many cases is he going to hear on a given day; can he go to Ottawa for one week because there is a trial that is going to take eight days.

I say to the Attorney General, it has been two years, now, that he has been in this job, and I don’t expect him to be able to solve the inadequacies -- the neglect, I should say -- of all his predecessors, because we have been talking about this for some years. The whole administration of justice has been neglected. I think he perceives what the problems are.

His problem is that he doesn’t have the money to cure it. It’s obvious from his comments and opinions on the Small Claims Court Act, that he is lacking money.

But it seems to me that more major and substantial changes could be made in our administration of justice. We should seize this opportunity to do this. It wouldn’t require that much money. I suppose we do have the time to appoint associate chief judges of the county court, but it seems to me that in the scheme of things, in the overall apparatus of the whole administration of justice, I would have hoped to see much more substantial legislation coming forward.

I know that would require bold steps on the part of the Attorney General, and I know there is always the fear ‘of trampling on the jurisdiction of the courts and the judges. They are saying “Careful, we have a certain independence, we are the judiciary, you are the executive, we are the Legislature,” but the fact remains that somewhere along the way, we are all here to serve the public, including the courts. That’s the primary responsibility we have.

We are not doing that when we are just getting involved in what I consider to be -- and I don’t want to be derogatory to whoever is going to be the associate chief judge of the county and district court, but in my opinion in some measure this type of legislation is superficial. I look at the other things that are wrong with our courts. I would have hoped to see much more substantial legislation to really deal with the problems of our courts: the problems of the delays in county court, the problems in Supreme Court, the problems in the provincial court -- be it family division or the criminal division.

Then there is the problem of substantial changes in the Small Claims Court. Unfortunately, what we are getting here is legislation which just doesn’t solve very much. It is going to give someone an extra title. As I said, I want to be very careful not to appear to be offensive towards the judiciary. My colleague is telling me that sometimes I appear in front of him. Sure I do. And I have long discussions with judges as to what the problem is as well. I experience it first hand and I talk about it in the Legislature.

We’re going to have to come to grips with this, because it’s starting to overtake us. The whole administration of justice, which is one of the pillars of this province, should not be undermined by budgets.

I notice my colleague is approaching. I just wish we had the Treasurer (Mr. McKeough) sitting here -- he’s the fellow we should be talking to. When I look at the money, when I look at those people on the other side --

Mr. Maeck: Where do we get the money from, Albert?

Mr. Roy: -- and I look at the money they’ve squandered, for instance, on the 1975 election by giving out those car rebates and reducing the sales tax -- what could we do with that $500 million in the administration of justice? What could we do with that kind of money to really solve the problems of the administration of justice? These so-called election gimmicks. I could see that financial problems are incurred in the administration of justice. For sure! The government has squandered some of the funds of this particular province.

I really feel, Mr. Speaker, that we must express concern -- when we’re dealing, for instance, with amendments to the County Court Judges Act -- that all we’re doing here today is making provisions for an associate chief judge of the county and district court.

I think we’re not really responding to the needs of the community in the administration of justice. I would hope, Mr. Speaker, that in the near future we’ll see something much more substantial to deal effectively with the real problems in the courts.

Hon. Mr. McMurtry: I’d just like to respond, but I guess it would be out of order for me to do so at this time.

Mr. Speaker: Usually the minister winds up the debate on second reading.

Hon. Mr. McMurtry: The member for Ottawa East has got me so wound up that I’ll --

Mr. Speaker: I’ll recognize the hon. member for Lakeshore. Maybe by that time the minister will have cooled down.

Mr. Lawlor: I’m sure Frank Callaghan, now chief judge of the county court in York, will forgive me if I say: “Frankie and Johnny were lovers. Oh, and how they could love.” Frankie has found his Johnny in this legislation today -- he’s got an associate judge. Hardly had the tonsure dried behind his ears and he has this inflicted upon him.

The point that the previous speaker made is surely valid. The minister is setting up a whole host of associate judgeships. I won’t dispute that in some instances -- for instance, in the high court -- an associate may be necessary. I would like to get the firmest type of assurance that in this instance, does it mean that this associate judge too is going to be by and large, largely taken off the bench? That’s a great shame. Is the appointment of a series of associates really designed to expedite, or to be beneficial, over against your court administrator concept? I’m not convinced of the validity of the notion in this particular regard.

The only other thing I want to say about the legislation in principle does arise out of the notes. You notice, Mr. Speaker, that they didn’t attempt to spell out what this new associate judge is supposed to do: what his duties are. That is adverted to and sought to be explained or, even possibly explained away, in the notes that have been supplied.

The notes say: “The duties of the Chief Justice of Ontario, the Chief Justice of the High Court and the chief judge of the county or district court are, for the most part, not be found in statutes or in the rules of practice. Such duties are assigned by sections of the Judicature Act and the County Judges Act. But these do not begin to cover the multitudinous tasks which have by custom been assumed by the chief judicial officers. For this reason, it would be inappropriate to attempt to legislate in detail the duties of the associate chief justices and the associate chief judge. Rather, the offices should simply be created by amendments to the Judicature Act and the County Judges Act with the actual division of administrative labour to be worked out by the chief judicial officer and his associates.”


Superficially, that seems to make sense. On the other hand, since we have basic suspicions -- at least I have -- about the formation of this new office as such, to be also bereft of any notion of precisely what he is supposed to do and to have nothing in the legislation seeking, not necessarily in detail but even in general terms, to spell it out, just as his own Act governing his duties as Attorney General is spelled out in sufficient terms, in the absence of that, I am standing here with a double doubt as to whether this is the best and wisest legislation the Attorney General could have brought forward under this head at least.

Mr. Bolan: I can appreciate the problems which the Attorney General has faced in the past couple of years in coming to grips with the problems of the courts. The question which I must ask myself is what will the creation of this position do to alleviate the problems which we have in the county courts system and I might also say, similarly in the Supreme Court. I can appreciate the problems which the Attorney General faces. He has no money. I am sure he would like to do more to rectify the problem. The function of this associateship, if I may call it that, will do nothing more than create more administration within the court system.

If there is a need to streamline the administration of the court system, then we should be looking at creating the appointment of an administrator and not an associate judgeship. I feel that this person, through that appointment -- and I say this with the greatest of respect to whomever that person may be, will still be figuring out administrative problems which have been created within the county court judges system. Again, the same thing applies to the Supreme Court judges on their level. I might say that on their level the problems are even greater.

Often I have seen delays. I am sure the Attorney General has as well in the days when he was practising law. After hanging around in courtrooms for 17 years, one gets to appreciate some of the problems. To give a specific example, in North Bay the presiding Supreme Court judge comes swooping in with his gowns and robes and his reporter. He has one week for North Bay. There may be 20 cases on the list and some cases may be lengthy cases. There may be a case that will last two weeks or 10 days or whatever. He will say, “I’m just here for a week. I can’t take anything which has any length to it.” The first thing one knows the list folds and the judge is back in weekly court by Wednesday.

These are the types of problems which we have, particularly in the regions outside of Metro Toronto as we understand it. I understand in Metro Toronto the system seems to be picking up. There are more cases which seem to be going through. However, dealing with parts outside of Metro, and particularly in the north, we do encounter some very serious problems with respect to the administration of justice.

I would hope that Band-Aid type of legislation will not end there. I would hope that during the next session the Attorney General would have something more comprehensive. I can think of many areas. For example, I am sure that the Attorney General has heard the arguments about eliminating the county and Supreme Court system and having one system of courts; call it the Supreme Court or call it the county court.

Mr. Roy: You’ve got to call it the Supreme Court.

Mr. Bolan: Yes, you’d have to call it the Supreme Court because they are not prepared to go down to the county court level. Another suggestion which I am sure the Attorney General has heard is to regionalize certain parts of the province so that you have a number of Supreme Court judges, for example, who would be sitting in region 11, which may be the Sudbury-Nipissing district or region, or the Ottawa region, or the London region. I am sure that over the next couple of years, or at least I would hope during the lifetime of this particular Legislature, we would see legislation like that forthcoming.

Hon. Mr. McMurtry: Mr. Speaker, I don’t quarrel with the characterization attributed to this legislation by the member for Nipissing as a Band-Aid. I would have to agree with that. But I think it is important for him and other members of this Legislature to appreciate -- and I won’t take too much time now because I think this is an area that will be pursued in estimates -- that a great deal of my energies, believe it or not, have been directed to resolving these problems during the past two years.

Firstly, the appointments of the associate chief judges and the associate chief justices in the Act that will follow this are being made at the request of the chief justices and the chief judge. Their request is based, very simply, on the grounds that they were appointed by Her Majesty to judge and, by reason of their many administrative duties, it is very difficult for them to sit as judges. Because these responsibilities have become so onerous and in order to allow them to sit more in court, where we would agree chief judges should be spending a good deal of their time, they feel it is necessary to have these appointments. But it goes beyond that.

I can anticipate a response, as has been already suggested by the member for Nipissing and others, that surely we should get the judges out of administrative work and appoint an administrator to take on these administrative responsibilities. But, I don’t think I fully appreciated the delicacy of this problem until I arrived in my present office because the judiciary are, understandably so, very sensitive to any activity that will be perceived to impair their independence. ‘When it comes to a non-judicial administrator giving direction to any judges I think the members opposite can appreciate that it’s the type of direction that is not received in a very positive manner.

So, it is necessary for our chief judges to take on administrative functions if there is going to be any administration, any authority and, indeed, any accountability in the system. Recognizing the need for some degree of authority in this system, one quickly comes to the appreciation that the only authority that can be injected into the system must be authority from the judges themselves. For very understandable reasons, and they have made their position very clear, they are not going to take direction from anybody else, certainly not the government or administrators appointed by the government. That position has been made loud and clear to myself and my predecessors. It’s on the record. It’s clear in that respect.

My predecessors wrestled with this problem. Those who have been in the Legislature for a longer period than I have will recall the legislation which created the central west project to develop an area in the province whereby certain recommendations of the Ontario Law Reform Commission could be implemented in relation to the administration of the courts. The central west project and Wentworth-Halton area were introduced in order to inject better administration. A committee of judges, lawyers and administrators was established and this project which had self-destruct provisions proceeded for two years. Certainly one of the things that was learned by those who participated in this project was that the divided responsibility simply was not working. It was not likely to work very well.

When I talk about divided responsibility, I’m talking about the responsibility that is exercised by judges in their judicial capacity and that which is exercised by the Ministry of the Attorney General in an administrative capacity with respect to the functioning of the courts. Certain better solutions were required. I don’t want to spend too much time going over history that is known to many of the members here. What we had learned from this central west project and the experience and our concerns were incorporated in the white paper on courts administration which was introduced a year ago.

Central to this recommendation was the recognition that for greater authority and improvements in the system the direction would have to come, not necessarily from the judges in the first instance, because they’re not trained to be administrators or trained to look at administrative techniques, but obviously any implementation would have to come at the request of the judges themselves, more particularly the senior judges. Therefore, as members will recall, in our white paper on courts administration we suggested a judicial council made up of the chief judges of the three levels of the courts which would have supervisory capacity.

I might say the judges responded more or less quite positively to this. There are some problems inherent in this. As I say, we’ll be discussing some of these problems later on this evening or more probably during the estimates. I am concerned about the continuing accountability of the government, more particularly the Ministry of the Attorney General. I don’t for one feel that this accountability can be delegated.

Just before we adjourn I’d like to say that the leadership that was to be provided in this system had to come initially first and foremost from the Chief Justice of Ontario. Because of his stature and the tradition of that office, he had the potential for having a very positive impact throughout the system. I’m happy to report, although happy and sad to report that the last chief justice of this province, Mr. Chief Justice Estey, indicated his willingness to take on this responsibility, but at the same time indicated that it would be necessary to have these associate chief justices.

I’m happy to state that Chief Justice Estey was willing, as I hope his successor will be willing, to have a judicial council, even before legislation, acting in an advisory role to provide guidance for the judges across the province in relation to working out some of these problems related to case flow management which the judges must be inevitably involved in.

While Chief Justice Estey will be an adornment to the Supreme Court of Canada, and certainly it was an excellent appointment, I have to say at the same time that our federal friends demonstrated enormous insensitivity to the problems of Ontario by removing the chief justice, a man who had only served for nine months, notwithstanding the very valuable role he can and will play in the Supreme Court of Canada.

I’m not downgrading the importance of that for one moment. But I have to say, and for the first time publicly, that I regret that Ottawa was so much out of touch with the importance of the role of the chief justice of this province that they would see fit to appoint a man and leave him there for a period of time.

Mr. Speaker: May I remind the minister of the time.

Mr. Roy: Doesn’t the minister agree that we should have the best people on the Supreme Court of Canada?

Mr. Speaker: Does the hon. minister have much more to say?

Hon. Mr. McMurtry: No, only 15 seconds, Mr. Speaker.

I only indicate that while I compliment and congratulate and recognize the very valuable work that the former chief justice was doing in the area of court reform, at the same time I must express my regret that he was taken from us in such a peremptory manner.

Mr. Wildman: There goes the judge.

Mr. Foulds: He could have turned down the appointment.

Motion agreed to.

Third reading also agreed to on motion.

The House recessed at 6:05 p.m.