The House resumed at 8:09 p.m.
House in committee of the whole.
EDUCATION AMENDMENT ACT (CONTINUED)
Resuming consideration of Bill 82, An Act to amend the Education Act.
On section 7(1), section 34 of the act:
Mr. Chairman: Before the committee recessed there was some discussion regarding the stacking of the votes. Does the committee wish to deal with that now or when we come to the actual voting?
Mr. Sweeney: Mr. Chairman, I think the agreement has been that we will stack the votes for the various subsections of section 34 of the act as set out in section 1 and then we will proceed from there to deal with each section in turn. In other words, as the Chairman may note, there are 17 subsections to section 7. We are going to go from subsection to subsection and then stack them at the end so that we will vote on them. Instead of voting on each subsection in turn, we will make the amendments and then vote on the whole package of section 7 at the end. That is what I understand the agreement to be.
Mr. Chairman: As I understand it, the agreement of the committee is to stack any votes on the amendments to section 7 and vote on them at the end of that time.
Mr. McClellan: That is agreeable to us, Mr. Chairman. The outcome of the vote on section 7 will depend on whether we have additional amendments to offer. I think we are all anxious to try to get through this bill this evening. That sounds like a sensible procedure.
Mr. Chairman: I hope that is understood by the members of the committee.
On subsection 2:
Mr. Sweeney: Mr. Chairman, I believe you have before you an amendment which reads: “Moved by Mr. Sweeney that Honourable Miss Stephenson’s amendment be further amended by adding, ‘offered by the board’ after the word ‘instruction’ in the fourth and seventh lines of section 34(2).”
Mr. Chairman: Mr. Sweeney moves that Honourable Miss Stephenson’s amendment be further amended by adding “offered by the board” after the word “instruction” in the fourth and seventh lines of section 34(2).
Mr. McClellan: I would simply like to say that is not helpful if the object of the exercise is to extend the right of appeal to the decision of whether a student is an exceptional pupil or whether an exceptional pupil has the right to special education programs and special education services. The reality is that you cannot make a silk purse out of a sow’s ear. You cannot turn this section into a broader section because of the definitions at the beginning. The section, as it has been put forward by the minister, is limited to dealing with the question of appeals on behalf of hard-to-serve pupils. There is no way you can broaden that.
Mr. Foulds: I have a question. I wonder why the member is offering the amendment. I am curious about it.
Mr. Sweeney: Mr. Chairman, if I may speak to it, the definition of hard-to-serve pupil in section 34(1) was expanded to include the words “offered by the board” after the word “instruction.” I moved the amendment in section 34(1) and will move it again in subsection 3 simply to have internal consistency. Whenever we use the expression, “unable to profit by instruction” we simply add the words, “offered by the board.” That is the reason for it.
Mr. Grande: I have a question of the minister. That is, if amendments are made to section 34(2), how closely are they related to the schematic visual representation the minister gave us with her first amendment? You have seen that? Where you have “PPRC,” I would assume that is a program placement review committee. The decision of that placement committee would go to the school principal. If the principal agrees, then the child would be in a special education program. My question is what happens there if the parent disagrees at that stage.
Hon. Miss Stephenson: Mr. Chairman, the child would already be in a program, and if in that situation either the principal or the parent felt the child was not profiting by instruction, the principal would be bound to refer that to a supervisory officer, and through the supervisory officer to the board, which must establish a committee.
Mr. Grande: Mr. Chairman, could the minister give me an idea of how many children in the system we are talking about at present? Are we talking about the famous two cases, whereby last year those children would have been excluded as a result of section 34, or are we talking about a larger number of children? Could the minister give me an idea of how many children we are talking about in this section?
Hon. Miss Stephenson: Mr. Chairman, it would be impossible to give the honourable member a specific figure. It is certainly a considerably larger number of children than the two who are currently excluded. Indeed, this bill gives the right to every child within a board’s jurisdiction to be placed in a program within the school system. Obviously, it is a much larger number, but I really can’t tell the member what the larger number is at this stage of the game, and I don’t think the member could either.
Mr. Chairman: All those in favour of Mr. Sweeney’s amendment to Hon. Miss Stephenson’s amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Amendment stacked.
On subsection 3:
Mr. Chairman: Mr. Sweeney moves that Hon. Miss Stephenson’s amendment be further amended by adding “offered by the board” after “instruction” in the fifth and ninth lines of section 34(3).
Mr. McClellan: I simply repeat that this does not do any more to this subsection than the same thing did to the previous subsection. We have a complete appeal system in section 7 of the bill as it stands. This is completely superfluous and unnecessary.
Mr. Chairman: All those in favour of Mr. Sweeney’s amendment to Hon. Miss Stephenson’s amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Amendment stacked.
On subsection 4:
Mr. Chairman: All those in favour of Hon. Miss Stephenson’s amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Subsection 4, as amended, agreed to.
On subsection 5:
Mr. Chairman: All those in favour of Hon. Miss Stephenson’s amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Subsection 5, as amended, agreed to.
8:20 p.m.
On subsection 6:
Mr. Stong: Mr. Chairman, I have an amendment that I would offer on this section. However, I have received a notice from the minister wherein she indicates to me that the principle of my amendment will be adapted -- I do not know if it will be here or later. I am prepared to have it stood down at this time until I have an opportunity to view the amendments the minister intends to offer. They are not here yet; they are on their way up I understand.
Hon. Miss Stephenson: Mr. Chairman, the amendment will be 34a and the current 84a will be renumbered 34b. That seemed to be the most appropriate placement for it.
Mr. Stong: I respect that and I am prepared to wait. I feel the amendments will be acceptable to me. I have not seen them yet and I do not want to lose my position in line on this section.
Hon. Miss Stephenson: It is possible that we might stand down the remainder of section 7 until that amendment is available. We could proceed with the sections thereafter, about which I think there is little debate, and then return to section 7.
Mi. McClellan: With respect to the suggestion the minister has made, I may or may not have an amendment to the sections following section 7 depending on what happens to section 7. So if we do stand down the section, I would want to reserve the right to move an amendment to the sections following it. That would be a new section 8, and the rest of the bill would be numbered accordingly. I’ll agree to this as long as it is understood that I can move an amendment to be inserted after section 7, should that be necessary.
Does the minister know how long it will be before we have the amendment?
Hon. Miss Stephenson: Five minutes.
Section 7 stood down.
Sections 8 to 17, inclusive, agreed to.
On section 18:
Mr. McClellan: This is just a factual question. I gather this is a discretionary power.
Can the minister tell us what would happen if the board of education refused to do what is set out in section 18? That is, if the board of education refused to employ and pay teachers to conduct an education program in a centre facility home, et cetera, despite a clear need and despite a sense on the part of the minister that action is required, what would happen?
Hon. Miss Stephenson: The boards of education have up to this point been extremely co-operative in the establishment of programs and the payment of teachers because they are encouraged to be co-operative by the funding mechanism established to provide that kind of service. We have had no difficulty in encouraging boards to participate in that kind of program in the past and I doubt we will have any difficulty in the future.
Mr. McClellan: Does the minister not feel there should be some kind of fail-safe provision in there, that there should be some onus on the ministry if a local board does refuse to take the appropriate action?
Hon. Miss Stephenson: This bill puts an onus on the ministry now to ensure all those pupils will be provided with an educational program. That is inherent in the bill. It is explicitly stated very early in the bill that the minister shall ensure that all exceptional pupils shall have a program provided for them. This part is not excluded from that assurance, nor from that responsibility.
Mr. McClellan: It is part of the same issue. If we had a stronger appeal procedure, if we had section 7 as it stands in the bill we would not have to worry about this. I suppose the outcome would be the same.
Section 17 agreed to.
Sections 18 to 24, inclusive, agreed to.
On section 7(1), section 34 of the act, subsection 6:
Mr. McClellan: Before the minister reads her amendment, could somebody arrange to have some additional copies made? I have one copy of a handwritten amendment to section 7 to be moved by Miss Stephenson. I wonder if somebody could arrange to have some additional copies made because I don’t want to give my only copy to the pages while they scurry off to Xerox it.
Mr. Chairman: Hopefully, there will be some more available.
The committee could then go to the minister’s amendment to section 7(3).
Mr. McClellan: We have done that.
Hon. Miss Stephenson: We had finished section 34(5).
Mr. Chairman: Are we ready to go on with section 34(6)? Oh, we are; fine.
Mr. Foulds: No, we are not. As one member of the House who happens to be vitally interested in the bill, I would like to have the proposed amendment in front of me in writing. I don’t think that is too much to ask.
Mr. Chairman: Madam Minister, do you have that other amendment ready yet?
Hon. Miss Stephenson: I have one copy I might send to the member for Port Arthur, but that is all I have at the moment.
Mr. McClellan: Are your staff incapable of running a Xerox machine?
Hon. Miss Stephenson: No, they are not and they have been attempting to do this.
8:30 p.m.
Mr. McClellan: Well, they have not done it once yet. Mr. Chairman, I just want to make this point of order. I have had to send the only copy of every single amendment I received by a page-boy to have a Xerox copy made for my colleagues. Surely the ministry, with all its resources, could do us the courtesy of providing copies of amendments in sufficient quantity that the members of the assembly have them when the stuff is being debated.
Hon. Miss Stephenson: You have three copies of the amendments.
Mr. Foulds: On the point of order, Mr. Chairman: There are 125 members in this Legislature. We knew before we broke for the supper hour that there were two hours in which there was some agreement within the “Social Credit coalition” about what the amendments to the act were going to be. I do not think it is asking too much that once the decision had been reached about what the “Social Credit coalition” agreed to, the government ministry should Xerox about 20 copies of the amendments so that they would be before members of the House.
I know it is normal to give critics copies of the amendment. The standing orders ask us to have those amendments a day or two in advance. Most of the time, we in the opposition are able to comply with that standing order. We recognize the particular difficulty the minister has faced with this bill. Is it too much to ask that she be prepared for some kind of fallback position and some kind of compromise? Is it too much to ask the minister and her staff to treat this Legislature with some courtesy so that the standing orders are met?
The minister is determined to remove from the Legislature its right, with the acquiescence of the Liberal Party, to enact in legislation certain things that this party believes should be enacted in legislation rather than through regulation. We would at least like to see the words that are being formed in the statute while we are debating it. I do not think that is an unreasonable request.
Hon. Miss Stephenson: Mr. Chairman, having been treated with the utmost discourtesy by the third party, which will remain the third party forever, I would like you to know we have worked very diligently with the help of legal counsel in order to draft this appropriately. It was completed, I tell the honourable member, at eight o’clock.
Mr. Foulds: It takes you 25 minutes to Xerox a dozen copies of three pages?
Mr. Chairman: Order. The honourable member has had his opportunity to speak.
Hon. Miss Stephenson: Mr. Chairman, all I can say is that we have done our best to comply with the rules of the House. We shall continue to do so, and we also attempt to be courteous in all situations, which is something the third party has never heard of.
Interjections.
Mr. Chairman: Order.
Mr. M. N. Davison: Mr. Chairman, I find it very offensive that the minister just adopted the attitude she has taken with regard to the discussion taking place. I think the matters raised by my colleagues, the members for Bellwoods and Port Arthur, are serious. We do, in this party, consider this to be a very serious bill. We do consider the issue before us to be a very serious matter. We are simply asking that the minister provide us with the requirements of the standing orders of this Legislative Assembly. If the minister wants to take the position that this is somehow or other against her own position. I quite agree that maybe that is true. But I do think the minister should comply with the rules of this House just as anyone else here has to do.
Mr. Chairman: I might remind the members again of standing order 58: “When time permits, amendments proposed to be moved to bills in any committee shall be filed with the Clerk of the House at least two hours before the bill is considered, and copies of such proposed amendments shall be distributed to all parties.”
Interjection.
Mr. Chairman: Order, back to section 34(6) of the act. The member for York Centre is not moving an amendment?
Mr. Stong: No, I am not, Mr. Chairman, in the light of the amendments that have come into my possession.
Mr. Foulds: Mr. Chairman, I throw myself upon the mercy of the committee of the whole. I have before me an amendment by the Minister of Education that was handwritten. It has not yet been read into the record, is that right?
Hon. Miss Stephenson: No, because it does not come until the end of the section.
Mr. Foulds: It says here, “I move that section 7 of the bill be amended by adding thereto the following subsection 3.” It seems to me we passed subsection 3. What did you do, stand it down? Did I miss that? Is a new subsection 3 being introduced?
Hon. Miss Stephenson: We are on subsection 1.
Mr. Chairman: We are on section 34(6).
Mr. Foulds: All right, thank you.
Mr. Chairman: As a matter of fact, a short time ago I asked the committee if they wanted to discuss this and they said “no.”
All those in favour of Hon. Miss Stephenson’s amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Subsection 6, as amended, agreed to.
Mr. Stong: Mr. Chairman, I had indicated that I would be moving an amendment, but I will not. I withdraw my amendment. I withdraw all the amendments that I have put through for section 7.
Mr. Chairman: You have not actually put any.
On subsection 7:
Mr. McClellan: I am quite nonplussed. The member for York Centre had an amendment to subsection 7, which he hoped --
Mr. Stong: Subsection 6?
Mr. McClellan: I am talking about the amendment to subsection 7, which, at least before we broke for supper, the member indicated would somehow transmogrify this section in such a way that it would become a means for having appeals against decisions of the local placement committee of the board with respect to whether a child was an exceptional pupil and whether the placement was adequate.
Mr. Stong: Subsection 7?
Mr. McClellan: Yes, we are talking about subsection 7, right. The amendment he drafted does neither of those things, and the amendment the minister has submitted seems to do even less. I do not pretend to be able fully to understand the amendment that the minister has submitted, for the simple reason that I cannot read all of the handwriting.
Mr. Makarchuk: Was it written by a doctor?
Hon. Miss Stephenson: It is not mine.
Ms. McClellan: I should hope not. It was obviously written by a doctor, though, because it is utterly illegible.
Hon. Miss Stephenson: Matter of fact, it was written by legal counsel.
Mr. McClellan: It was written by a lawyer or a doctor.
The problem remains that it is, first, an amendment to the section that talks about hard-to-serve pupils. Again, the amendment that the minister intends to move, which is a replacement for the amendment that the member for York Centre was going to move to subsection 7 --
Mr. Stong: Now we have a new section coming up which will deal with it.
Hon. Miss Stephenson: Read it.
Mr. McClellan: We will get into the substance of the debate when the minister gets around --
Hon. Miss Stephenson: How can the member debate an amendment which has been withdrawn?
Mr. McClellan: I can make any comment that I want to make on any section of the bill, unless the minister somehow --
8:40 p.m.
Mr. Chairman: Order. The section before the committee is 34(7) of the act.
Mr. Foulds: That is what my colleague is commenting on.
Mr. McClellan: Correct. The problem remains, as the section stands, that it is limited to appeals against decisions with respect to hard-to-serve pupils and nothing that has been introduced, or is intended to be introduced later on down the pike, changes that.
Mr. Chairman: All those in favour of Hon. Miss Stephenson’s amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Subsection 7, as amended, agreed to.
On subsection 8:
Mr. Chairman: All those in favour of Hon. Miss Stephenson’s amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Subsection 8, as amended, agreed to.
Subsection 9:
Mr. McClellan: I want to make a comment on this subsection. This is the subsection that contains the language that was carried over from a previous amendment that had not actually been moved by the minister, but we did discuss it in the social development committee. The language is, “the board shall assist the parent or guardian to locate placement suited to the needs of the pupil.”
I want to point out to the committee that we still have that very nebulous and ambiguous language, “the board shall assist to locate.” I simply wanted to contrast that with the provision in section 7 of the bill, as amended by the social development committee, which this is intended to replace.
The Ontario Special Education Board, under Bill 82 as it is printed, would have the power to design, determine or designate an appropriate placement for a child who had been successful in an appeal before the tribunal, and that is a very substantial difference. I realize the minister has put forward objections to the power our amendment gave to the Ontario Special Education Board. Nevertheless, we feel it is really essential if there is to be a meaningful remedy out of the appeal process. I do not see it as a remedy that, having won an appeal, the matter goes back to the local board of education and the board assists the parent in locating proper placement. The emphasis is on “assist” not on “locate.”
I understand there have been some changes to the minister’s position and if as a result of an appeal a person is successful and a placement is obtained, Ontario will pay the cost of the placement, but there is still a measure of ambiguity with respect to whether or not a placement will be found. I still feel it makes a lot more sense to empower the tribunal with the capacity to design, determine and designate an appropriate placement upon the successful outcome of an appeal.
While I am dealing with that, I should mention in passing, as I am sure the minister and my colleagues in the Liberal Party know, that if some miracle happens and this amendment is defeated, we do intend to amend section 13, which has to do with the exercise of power of the tribunal, so that our tribunal will make recommendations to the minister and the minister will implement those recommendations. At any rate, we are very far apart on both language and concept with respect to where the onus should lie. We do not intend to support the subsection in front of us or any amendments to it.
The Deputy Chairman: Any further discussion on section 34(9) of the act?
Mr. Bounsall: I don’t wish to prolong the debate, but I would like to hear from the minister on this part. This is the part that in its various versions and now back again before us in this form, has always worried me. Can the minister categorically say that when a child is determined to be hard to serve there will never be a board in this province with which there will be a problem in having that board assist the parent or guardian to locate a placement?
When the child is designated hard to serve, the parent would like to get the child placed or find a place for that child that would best serve him, and the parent expects the board to assist in that duty. The board does nothing, except to say, “We don’t know of any place. Do you? Why don’t you keep looking”? Parents feel the board is doing nothing but checking periodically with them.
Can the minister guarantee that will never happen in Ontario, that there will never be a situation where a frustrated parent will say, “My child has been designated hard to serve and the board, although the act says it must assist me, is really doing nothing active to assist in placing my child.”
Hon. Miss Stephenson: Mr. Chairman, I really do not have the kind of jaundiced view about all human beings that seems to pervade some of the members opposite. I believe that when boards are given a responsibility or are designated that responsibility or provided with that responsibility through legislation, they do carry it out. I would anticipate that all boards would do that. Some, obviously, with more enthusiasm than others, but it is obvious those given responsibility under this act will carry out that responsibility.
Mr. Bounsall: Mr. Chairman, I want to make it very clear I do not take a jaundiced view of this bill. I think that most boards in this province will do their level best to live up to the spirit of this bill. But we are writing legislation now that covers every contingency. I am concerned that some time, some place, somewhere, some board will put parents in this situation. What recourse in this legislation do parents have to see the board, which should know a lot more than they do, being in the business of providing education, does meaningfully search for a place that serves their child?
This is my point. When you read on to section 34(10), there is an appeal mechanism to the tribunal, if they don’t agree the child is hard to serve or they don’t agree with the placement. But what if there simply isn’t any, or much, activity in trying to find a placement? I am not saying this is going to be the rule, but it could well be the exception. What recourse do parents have?
Hon. Miss Stephenson: Mr. Chairman, parents have the recourse they have at the present time about any number of situations, that is, to notify either the regional office or the minister. When that happens, of course, there is discussion immediately with the board in terms of discharging the responsibility which is legislated for the board to pursue.
The Deputy Chairman: All those in favour of section 34(9) standing as part of the amendment will please say “aye”.
All those opposed will please say “nay”.
In my opinion the ayes have it.
Subsection 9, as amended, agreed to.
On subsection 10:
The Deputy Chairman: All those in favour of section 34(10) standing as part of the amendment will please say “aye”.
All those opposed will please say “nay”.
In my opinion the ayes have it.
Subsection 10, as amended, agreed to.
On subsection 11:
The Deputy Chairman: All those in favour of section 34(11) standing as part of the amendment will please say “aye”.
All those opposed will please say “nay”.
In my opinion the ayes have it.
Subsection 11, as amended, agreed to.
On subsection 12:
The Deputy Chairman: All those in favour of section 34(12) being part of the amendment will please say “aye”.
All those opposed will please say “nay”.
In my opinion the ayes have it.
Subsection 12 agreed to.
8:50 p.m.
On subsection 13:
Mr. McClellan: This is one of the sections that has to do with the remedy under a successful appeal to the ministers tribunal. It is some remedy when the way the tribunal finds if the pupil is considered to need placement is that it is referred back to the board. I can foresee a kind of perpetual wheel of litigation if that is all that happens by way of remedy. It gets back to the point I made a few moments ago. I still feel it would be useful and helpful to empower the tribunal with the capacity to determine, design and designate where the tribunal felt that was appropriate.
It is not something that would be done in every circumstance, but I think it is important to have the tribunal established with the capacity to do that if the circumstances warrant it. I point out that the Social Assistance Review Board has the power to do precisely that. The way it works in practice is it does not come up with a program out of the air or out of the blue or even really on its own initiative.
What happens before the Social Assistance Review Board is that the parents usually come before the board with a specific program in mind. The Social Assistance Review Board is given the power in the legislation to substitute its decision for the decision of the director of the vocational rehabilitation services branch of the Ministry of Community and Social Services. This is precisely what it does. It makes a determination with respect to exactly what program will be available for the child who wins an appeal. It is a major failure of this minister’s amendment that that remedy is not available to the tribunal.
I say again, for the nineteenth time, that remedy is available under the appeal procedure at present printed in the bill. We intend to vote against this subsection.
Hon. Miss Stephenson: Surely it is reasonable to suggest that those who should be responsible for the delivery of an educational program should also be made responsible and accountable for the program which is delivered.
It would appear to me it is much more appropriate to have the tribunal hear the appeal of the parents regarding a placement for and the designation of that child to determine, on the basis of all the evidence which is provided, that the child is either hard to serve or does require placement in a special education program within the board’s jurisdiction or within another board’s jurisdiction if that board is unable. This act does provide for that capability on the part of boards.
If a board is unable to provide the program for a child, the tribunal, it seems to me, has the responsibility to determine where in the province there may be a board with that capability so that the child may receive the benefit of that program. But I am not at all sure that a special tribunal should have the responsibility for designing programs for children for whom it has only had the responsibility of reviewing all the information made available, without having had the responsibility of supervising that child or being in constant attendance upon that child and for whom there will be no ongoing accountability.
Mr. McClellan: I want to point out to the minister that we are not denying local responsibility. We are acknowledging that there has been a failure on the part of a particular local board of education because this subsection deals with a situation where an appeal has been successful. That is not an acknowledgement of blame or fault, but it is an acknowledgement that something was wrong with the process in the first instance at the local level because it is a successful appeal.
All I am saying is that I prefer the language of subsection 12 as it is printed in the bill, which gives the special education board a threefold power. They can affirm the decision of the local board, if they think the local board made the right decision, or they can rescind that decision, send it back to the local board, as you have done, and tell them to make another decision. But, third, if the circumstances warrant, they can rescind the decision of the local board and determine, design or designate an appropriate program.
All I am saying is that it would be useful if the circumstances warrant and if there is a major problem at the local level, if the tribunal had the capacity to act as a failsafe mechanism so that people are not being bounced around through an appeal system that has no real remedy. That is the concern I am trying to bring to the minister’s attention. The language of the statute as printed in the bill again is preferable to the amendment before us and we intend to vote against the subsection.
Mr. Foulds: I have a question for the minister. What does the minister plan to do when she is informed by the board of the special education services that have been provided and if she or her ministry finds that those services are inadequate? Are you going to make that kind of judgement? Is that why you want to be informed?
Hon. Miss Stephenson: The reason for the requirement that the minister be informed is to ensure that the decision of the tribunal has been carried out by the local board. If there is some question about it, obviously the regional officer with responsibilities for special education will also be informed and will be continuing to monitor that situation.
Mr. Foulds: What remedial action can you take? You talk about monitoring and that is all well and good. But what happens if there is a child who needs education and fails to get that for the three weeks to six months that it might take to go through the appeal process? The board provides a program 60 days later. Two months later you are notified what the program is and you make a decision and get it down the pike to a regional officer. He looks at it and says it is inadequate. He can monitor it, and for three months, four months, five months or six months the child has not had an adequate educational program. What remedial action can you take?
Hon. Miss Stephenson: If the member will read the definitions in the early part of the legislation, he will note that “special education program” connotes inherently a continuous review of the progress of the child through the program as well. That review is going to be carried out and if the child is not progressing appropriately, a review of the program will be carried out. The entire situation can be repeated at that stage, if necessary.
Mr. Foulds: I find these reviews very intriguing and interesting, but I am trying to determine from the minister what remedial action, under this subsection, she can guarantee that the Ministry of Education will ensure that the child has some remedial education.
Hon. Miss Stephenson: We are not talking about remedial education; we are talking about special education in this circumstance. Specifically, the responsibility has been laid upon the board through this legislation. The definitions ensure that program will be established and that there will be continuing assessment and continuous review. All of the mechanisms which are currently in place in many boards where this system is now functioning will be functioning right across the province for all children within the province.
9 p.m.
I have sufficient faith in the dedication of teachers and in the dedication of members of school boards to believe they will carry out their responsibilities as they are delineated within the legislation. I know the ministry will also carry out its responsibilities; of that I can assure you. But I have to tell you that as a human being having to deal with human beings, I am not sure you could guarantee 100 per cent absolutely everything in any circumstance at any time.
If you are asking me to write legislation which is going to cover the circumstance of one child only in the province, I have to tell you I don’t think we can do that. What we are attempting to do is write legislation which will guarantee for as many children as we have within our jurisdiction who have exceptionalities the appropriate educational program. I believe the kind of legislation and certainly the concurrent activity of implementation through the pilot project system is one of the ways in which we are ensuring that remedy will be available for those children.
The Deputy Chairman: Does the member for Port Arthur wish to carry this same subject on longer?
Mr. Foulds: Mr. Chairman, with due respect, if this were question period I would file dissatisfaction with the answer supplied by the minister. My question is a fairly straightforward one. What do you do when you have reviewed a program and the ministry finds that program is inadequate for the special education required by that child as defined by the tribunal? How do you remedy that situation?
Hon. Miss Stephenson: In that situation, Mr. Chairman, I would consult with the special education branch of my ministry. We would review what is being provided and, as a result of that activity, there would be consultation with the board in that circumstance as there is in many circumstances right now.
Mr. Foulds: After the consultation with the board, how do you hope to ensure that the program your officials deem necessary is supplied by that board? Where is your authority?
Hon. Miss Stephenson: My authority is to review the function of the review process within the child’s special education program in order to ensure that the program is being delivered.
Mr. McClellan: The only obligation under this section is that you be informed. What it says is “ ... within sixty days of receipt of the notice ... ” of the decision of the tribunal, the minister will be informed “ ... of the special education services that have been provided for the pupil.” The question is still unanswered. What happens if the program is totally inadequate? You have absolutely no remedy at all. The power lies with the local board. If the placement is still inadequate, the parents have to appeal again. What kind of a remedy is that?
Hon. Miss Stephenson: I would draw the attention of the members to the beginning of this bill where there is a statement which plainly provides that the minister shall ensure that the children receiving special education programs, shall, in fact, receive them. That is a responsibility which, in our process of implementation through the pilot project, we will be determining more closely in terms of form and mechanism. That is in section 2.
Mr. McClellan: The bill, as I just finished reading it, is very clear. The minister will be informed and the minister has no other power under the act or the regulations than to be informed. Tell me what your powers are so that you can reassure us on this point.
Hon. Miss Stephenson: At the present time, I prefer to utilize the powers of persuasion, co-operative activity and consultation, rather than attempting to use a large mallet to kill a fly in many instances. I believe in this instance that kind of activity is probably going to be more productive than spelling out the kind of pejorative and punitive legal remedy, which I believe the members opposite wish to have included in this bill.
The Deputy Chairman: The member for York Centre tried to get my eye some time ago and I don’t know whether he has a comment to make or not, but let him have an opportunity.
Mr. Stong: The question I had has been answered. It was on this point, but it has been answered.
Mr. Foulds: No one is asking you on the floor of the Legislature to design a special education program for every individual who needs a special education program in the province.
Hon. Miss Stephenson: Thank you.
Mr. Foulds: I accept the minister’s thanks with gratitude that knows no bounds. I ask the minister to answer this simple question. In those rare instances, and I admit they will be rare, where you find the program is inadequate, and where you find the beard, for whatever reason, is incapable of providing the program the tribunal finds should be developed for that pupil, what legislative authority do you have to ensure the program is developed either by that board or by some other board so there is either a purchase of service or a straight delivery of service?
Hon. Miss Stephenson: Since this act empowers the boards to purchase services from other boards, it is perfectly obvious that if they do not have the capability, or feel they cannot design a program specifically for one child, they will have the power to purchase that service from a board which has a program of that kind.
In addition to that, as I said very much earlier, it would seem to me appropriate that in making its decision about a program for this child the tribunal could, in consultation with the board if the board suggested it did not have the capacity to develop that program, recommend programs provided by other boards.
The Deputy Chairman: Shall subsection 13 stand as part of the bill?
All those in favour will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Subsection 13 agreed to.
On subsection 14:
Mr. McClellan: We have the same comments and the same vote.
The Deputy Chairman: All those in favour will please say “aye”.
All those opposed will please say “nay”.
In my opinion the ayes have it.
Subsection 14 agreed to.
On subsection 15:
Mr. McClellan: I would like to ask a question out of idle curiosity regarding the new tribunal we are talking about establishing. Does the Statutory Powers Procedure Act apply to the proceedings of that special education tribunal?
Hon. Miss Stephenson: Yes.
The Deputy Chairman: Shall subsection 15 stand as part of the proposed amendment?
All those in favour will please say “aye”.
All those opposed will please say “nay”.
Still, in my opinion the ayes have it.
Subsection 15 agreed to.
On subsection 16:
Mr. Foulds: This is the subsection I spoke on when I made some remarks on the whole series of amendments the minister has introduced in this section. I put the question to her as clearly and as bluntly as I can. What is there in this subsection that allows the hard-to-serve pupil, who cannot be served in Ontario, to seek those services elsewhere and for that to be covered by the ministry? Where does that happen?
Hon. Miss Stephenson: By the government.
Mr. Foulds: What I want to know is where.
Hon. Miss Stephenson: It happens in subsection 17, as a matter of fact.
9:10 p.m.
Mr. Foulds: On subsection 9, all I find is that “the board shall assist the parent or guardian to locate” the necessary special education. There is no guarantee in that subsection that it will be located in or outside of Ontario. When I go to subsection 14, I notice that “the board shall assist the parent or guardian to locate a placement.” Then I see in subsection 16 it “shall be made in Ontario, except where no placement suited to the needs of the pupil is available in Ontario.”
What I perceive here is a giant loophole. I would like the minister to allay my fears and tell me how that loophole is plugged so that a child who needs, and for whom it is determined he or she needs the services outlined in the section, can get them and can get them outside of the province. What guarantee do we have that placement will be made and the ministry will pick up the costs?
Hon. Miss Stephenson: In this subsection, we are speaking of hard-to-serve pupils for whom in all probability the requirements for care and treatment are uppermost and supersede requirements for an educational program. In this province we have a number of establishments, institutions and facilities to accommodate that child.
With the requirement by the legislation that each board will assist the parents to ensure the appropriate placement of children who are so designated with information, which will be provided to the boards by the ministry and by the other two ministries potentially involved -- the Ministry of Community and Social Services and the Ministry of Health -- in their search for the appropriate placement for a child so designated by a tribunal and with the recommendations of the tribunal given to the board as well, there is no doubt in my mind those boards will assist and that provisions 16 and 17 of the act will prevail.
Mr. Foulds: Provision 16, as I read the legislative language says, it “shall be made in Ontario.” There is nothing I see where it says, “There shall be a placement.” Quote me those words anywhere in this subsection where it says that there shall be a placement. You do not have them. They are not in the legislation.
Hon. Miss Stephenson: It is not specifically worded that way but the spirit of the bill, which the member chooses to ignore constantly, is that kind of assistance will be provided to parents to ensure that placement will occur.
Mr. McClellan: Say one wants an appeal and one invites some great spirit: “Oh, great spirit, come upon us. Thank you very much.” What kind of appeal system is that? When one goes to court and win, one wins a judgement and something consequential happens. When one goes to any of the other appeal bodies under any of the other statutes in this province and one wins an appeal, something consequential happens, something real happens. It is not some nebulous atmospheric entity, some spirit that descends upon the waters and somehow solves the problem. It is precisely this dilemma that makes your amendment unacceptable.
We have tried to come up with language, and it is printed in the bill that deals with that. The only way we could think of to deal with that -- maybe there are other ways -- was to empower the tribunal with the capacity to design, determine or designate a program, to recommend that program to the minister and oblige the minister to implement it.
I am not saying that is Mosaic and has to be engraved in stone. There may be other ways. I was not able to think of another way. I am sure there are other ways, but what the minister has is utterly nebulous and guarantees nothing.
Mr. Foulds: Mr. Chairman, the minister says the spirit of the legislation will prevail. I am reminded of the Biblical phrase about the spirit being willing but the flesh being weak. What we have had in the province for many decades is very weak flesh when it comes to the spirit of the Ministry of Education in meeting the needs of children for special education. I am sorry that the minister is such a person of faith. I find myself forced into a position of scepticism which, historically, she and her ministry have forced upon us when it comes to the matter of meeting the needs of special education.
Hon. Miss Stephenson: Hogwash. Absolute balderdash.
Mr. Foulds: Never mind privately mouthing obscenities and insults at me.
Mr. Chairman: Order.
Hon. Miss Stephenson: I do not mouth obscenities.
Mr. Foulds: Personal insults, that verge on the unparliamentary, let me put it that way.
What we are trying to do in this legislation, what we have constantly tried to do, is to ensure that all children in the province who have need of special education will receive it. What we have found in the three key subsections of this section that the minister is introducing, gutting and negating -- section 7 that was passed by the social development committee aided and abetted by her colleagues in the Liberal Party -- is a guarantee of assistance to the parents, and a guarantee that the placement shall be in Ontario; but there is no guarantee that there shall be a placement.
I am afraid this subsection will, I hope, haunt members of the Liberal Party for years to come, because the Conservative government is going to use these loopholes over the next five, 10, 15 or 20 years. Just as they have avoided introducing this legislation --
Hon. Miss Stephenson: To whom is the honourable member talking?
Mi. Foulds: I am talking to the minister. Would you just get the wax out of your ears and listen for a change?
Mr. Chairman: Order. Would the member address his remarks to the chair?
Mr. Foulds: I am talking to the chairman.
Mr. Chairman: To subsection 16.
Mr. Foulds: Subsection 16 is exactly what I am on, Mr. Chairman, because it is subsection 16 that allows the loophole to the minister and her officials, and allows the loophole because it is referenced to subsections 14 and 19 which do not plug that loophole. That means children who are hard to serve pupils are not guaranteed the right to an education. Let us be very blunt about that. That is what this amendment by the minister does. It avoids as strenuously as it can giving that clear-cut right, assurance and guarantee to parents with hard to serve children.
Mr. Sweeney: Mr. Chairman, I would ask the minister to clarify this: My understanding of subsections 9 and 14 is that, in both cases, the direction is to the board: “The board shall locate a placement.”
Mr. Foulds: “Shall assist.”
Mr. Sweeney: Just a minute. The member has had his chance to blow off.
Mr. Chairman: Order.
Mr. Sweeney: “Assist the parent or guardian.” I understand that to mean it would be in co-operation with it, rather than the board’s unilaterally, all by itself, going out and locating something and saying to the parent or guardian: “There it is. Take it or leave it.” That is my understanding of that.
Because there would appear to be the possibility of misunderstanding that, might I suggest to the minister that the wording be, “the board shall locate,” and then, “in co-operation with the parent or guardian, a placement suited to the needs of the pupil.” It is my understanding that is what those words are intended to mean.
9:20 p.m.
But if it is possible it is going to be misunderstood in the way in which it has been described, that probably would avoid that misunderstanding. I certainly would not support a statement just saying that the board is going to do the location all by itself without any co-operation or any involvement of the parent or guardian. I certainly do not think that is appropriate.
Hon. Miss Stephenson: Mr. Chairman, the purpose of the use of the word “assist” was to ensure that the board would, with all of the facilities and all of the information available to it, provide help to the parent of that child to find the appropriate place. It would appear that really is the appropriate kind of language as well. I am not sure we should suggest, as the member suggested, that the board unilaterally should locate the placement. It should be something which is done in a co-operative fashion.
That is what the purpose of the wording is in this section. We thought for several weeks about this and we cannot think of a better word to connote the kind of supportive co-operation which the board is required to provide by these sections of the legislation. This legislation does require that they provide it. I really cannot think of a better way to say it.
Mr. Stong: Mr. Chairman, I agree with my colleague from Kitchener-Wilmot and I did not approach this bill with a jaundiced view that some people have of the operations of our educators. I also believe in the presumption of regularity in the carrying out of the terms of this bill. However, I can ferret out that there is no obligation, although it could be read that it would be subject to interpretation. I agree with the minister that the spirit of the bill points out the obligation to the board to be of assistance and to pay the costs. Taken together, if there is a placement outside of Ontario, then I feel the board would be ordered.
However, because there is room for argument in subsection 16 and because it is the minister’s clear intention that where there is no placement suitable in Ontario suitable placement outside Ontario is envisaged by this act, perhaps we should make the language crystal clear to conform with her intentions. Perhaps we should consider an amendment.
It seems to me we should include in this subsection a provision that where there is no placement possibility in Ontario, placement outside of Ontario is encompassed. That is the way I read it -- however, it is arguable and to avoid an unnecessary court action over the interpretation I think we should satisfy members of the last party here and make it crystal clear.
Hon. Miss Stephenson: Mr. Chairman, it seems to me that is precisely what subsection 16 says: that if there is not a placement suited to the needs of the pupil within Ontario, placement will be made outside the province.
It does say that. “A placement of hard to serve pupil under subsection 9 or 14 shall be made in Ontario, except where no placement suited to the needs of the pupil is available in Ontario.” That means there will be a placement.
Mr. Chairman, I must express a modicum of concern about this section even as it is now written and that I have grave misgivings. I recognize that until the day the province is able to provide for all of the programs necessary this section is necessary, but I do have grave misgivings about spending Ontario taxpayers’ money outside of the province.
However, recognizing the limitations which may be in place obviously for the next one or two years, and may even be in place in exceptional circumstances after September 1, 1985, I think it is appropriate that this subsection be in. I do believe the section says if the placement cannot be met, if the needs of the pupil cannot be met by a placement within Ontario, that placement will occur outside Ontario.
Mr. Stong: In order to make this subsection crystal clear, may I suggest an amendment be offered so that the subsection would read: “A placement of a hard to serve pupil under subsection 9 or 14 shall be made in Ontario, but where no placement suited to the needs of the pupil is available in Ontario, such placement can be made outside of Ontario”?
Mr. Foulds: How about “shall”? How about putting “shall” in there?
Mr. Stong: You offer the amendment. I’ll vote for it.
Mr. Foulds: You offer the amendment.
Mr. Stong: I already have.
Mr. Chairman: Any further comments?
Hon. Miss Stephenson: I am perfectly willing to move that subsection 16 be amended by including after the phrase “is available in Ontario” “a placement may be made outside Ontario.”
Mr. Chairman: I’m sure the minister will put that in writing.
Hon. Miss Stephenson moves that subsection 16 be amended by adding after “in Ontario” in line four, the following, “a placement may be made outside Ontario.”
All those in favour of Hon. Miss Stephenson’s amendment to the amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Motion agreed to.
All those in favour of section 34(16), as amended, will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Subsection 16, as amended, agreed to.
On subsection 17:
Mr. McClellan: That is what we were waiting for.
Mr. Chairman: Oh, that’s what you were waiting for.
All those in favour of section 34(17) will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Subsection 17, as amended, agreed to.
9:30 p.m.
On section 7(2):
Mr. Chairman: All those in favour of section 7(2) please say “aye.”
Those opposed will please say “nay.”
In my opinion the ayes have it.
Section 7(2) agreed to.
Mr. Chairman: Hon. Miss Stephenson moves that section 7 of the bill be amended by adding thereto the following subsection 8:
“The said act is amended by adding thereto the following section:
“34b(1) Where a parent or guardian of a pupil has exhausted all rights of appeal under the regulations in respect of the identification or placement of the pupil as an exceptional pupil and is still dissatisfied with the decision in respect of the identification or placement the parent or guardian may apply to the secretary of a special education tribunal for a hearing for leave to appeal to a regional tribunal established by the minister under subsection 2 in respect of the identification or placement.
“(2) Where leave to appeal is granted under subsection 1, a regional tribunal shall be established by the minister to hear the appeal of the parent or guardian.
“(3) Notwithstanding subsection 1, a special education tribunal may with the consent of the parties before it in lieu of granting leave to appeal to a regional tribunal, hear and dispose of the appeal of the parent or guardian.
“(4) The Lieutenant Governor in Council may make regulations governing the provision, establishment, organization and administration of a regional tribunal and regulating and controlling the practice and procedure before such tribunal including the costs of persons before such tribunal.
“(5) The decision of a special education tribunal or of a regional tribunal under this section is final and binding upon the parties to any such decision.”
Mr. McClellan: This is the long-awaited compromise that is the magnificent achievement of my colleagues to the right in collaboration with the minister. At face value it is an appeal system with respect to the other two matters, whether a child is an exceptional pupil or not, and what kind of special education programs and services the child will get.
There are only a couple of minor problems. First of all, the parents need permission in order to hold an appeal. One has to get permission to have an appeal. What kind of a right of appeal is that, when some authority has to grant permission to have the appeal in the first instance?
That is not the only defect. There is no remedy. It does not say what happens if you win the appeal. What happens? Does the spirit descend on you again? Does the atmosphere somehow crystallize? Does the great cloud of unknowing somehow materialize? What happens if you win the appeal? I will tell you what happens if you win the appeal: nothing. That is the kind of an appeal system the other two parties have managed to cook up over the supper hour, and what an empty meal that is. This is a ridiculous proposition to substitute for the very clear appeal provisions in section 7 of Bill 82.
Finally, as if it was not enough that you had to beg for an appeal and you had no remedy if you won the appeal, it has a privative clause, subsection 5: “The decision of ... a tribunal is final and binding upon the parties to any such decision.”
At least the minister was gracious enough to allow an appeal to the court with respect to the disposition of hard to serve children, and here she has closed it off. I do not know why you would put a privative clause in this section. I point out to you, in case you are not aware, that your privative clause is relatively meaningless. There would be the right of appeal through the provincial Ombudsman.
Hon. Miss Stephenson: There is always the right of appeal to the Ombudsman.
Mr. McClellan: Are you denying that?
Hon. Miss Stephenson: No.
Mr. McClellan: It is a serious defect, that you would try to put a privative clause in this section. At any rate, this amendment is the very essence of emptiness. I must congratulate my colleagues on the right -- after weeks and weeks of deliberation to come up with such a significant product. But it is too ridiculous to even contemplate supporting.
Mr. Stong: Mr. Chairman, in so far as the present section 7 and its original introduction as an amendment to this bill went, it covered extremely well the situations involving hard to serve pupils. Regarding the two operations of the bill that were not covered by way of review, namely the identification and the placement, the minister has now introduced a mechanism for appeal. In principle, that is acceptable.
I do, however, have questions of the minister. What does she mean when she refers to a regional tribunal? There is no definition of that in the act and it was not envisaged in my principle. I would like to know what that means. I would also like to know if the amendments that I had intended to move did give a remedy. The section that is introduced by the minister does not direct the board to do anything in terms of setting up the appropriate educational program, so it is lacking in that sense. There ought to be a remedy set out in this section.
With respect, this being the final decision, we know, as has already been mentioned, there is an appeal to the Ombudsman, but there is always an appeal to the court on the grounds of denial of natural justice, so there is no quarrel with that.
My two areas of doubt concern the concept of a regional tribunal that is introduced for the first time in this section, and also there ought to be a power in the regional tribunal or the special tribunal to direct the boards to set up the appropriate program, as is done with hard-to-serve pupils.
Hon. Miss Stephenson: Mr. Chairman, the provisions for the examination of the problem by the tribunal would carry forward as they do in the previous section 7 for children who are determined to require a special education program. The kinds of decisions which the tribunal would make in that circumstance would prevail in this circumstance for those children, relating to program based upon identification or placement questions.
The regional tribunal is very similar to the concept we had for the provincial tribunal. That is that there would be, perhaps at the provincial level, not just one tribunal but several sitting at a time. A member of the concerned association might be one member, a member representing the school system another, and one member of the board as chairman who would be as independent as it is possible to be, representing neither one of the special interest organizations nor the school system specifically.
It was our intention with the regional concept to ensure that there would be available within, for example, the region served by a regional office, a mechanism whereby a tribunal of that sort could be established to serve the region. Since we have six regional offices we felt that was probably the most appropriate way in which to establish the idea of the regional special education tribunal.
There is a possibility, of course, that the special education tribunal hearing a case may determine that a case is so unusual it would be unlikely that a regional tribunal would be able to find an appropriate remedy. It might make the decision to hear it themselves at the provincial level, rather than at the regional level. We thought that responsibility should be provided for the special education tribunal, given the wisdom of those individuals.
9:40 p.m.
Mr. Stong: On that concept, I follow the event wherein the parents, for instance, do elect to appeal the decision on the identification of their pupil. We realize it only follows the natural course that if the appeal were allowed then the previous decision is upheld and that child is either identified as an exceptional student or not; or if the appeal is overturned then the converse is true.
What happens with respect to the placement, however? There is no remedy set out here with respect to the disagreement of the tribunal on the decision as to where to place the student. What follows from this decision in that event? If an appeal with respect to identification is overturned, then a child, by virtue of that appeal, can be classified as an exceptional student and fall within the definition of the act. There is no difficulty there. Unlike other people in this Legislature, I do not find any difficulty in reading what that means. But if this board allows the appeal of the parents with respect to the placement of the child, what remedy can it impose in those circumstances?
Hon. Miss Stephenson: If the placement of the child is questioned and is appealed and the board determines that an appropriate placement is required, then the board which has responsibility for the child whose case is being appealed is told by the tribunal that that program will be established, or that it must purchase that program for the child from another board as it is set out after subsection 10 -- I believe it is 12 or 13 of section 7. Excluding the hard-to-serve pupils, the same kinds of remedies which are available to those children determined by a tribunal to require placement in a special educational program would prevail in this circumstance as well.
Mi. Stong: To make it crystal clear, again, it seems to me there ought to be an addition to this amendment that would indicate that the board can make an order causing the implementation of the remedies available in section 7, if nothing more than just to make a determination. I know the remedies are set out in this section but, again, to make it crystal clear that the board does have some kind of remedy and can make an order, it appears to me it ought to be incorporated in this subsection that the tribunal can make an order against the board.
Hon. Miss Stephenson: I suppose subsection 13 could be duplicated at some point at the end of that section, which would ensure that the tribunal, having found the pupil to need placement in a special education program, requires the board to provide that program, and that the board is required to notify the minister that that order is complied with.
Mr. Stong: In the light of the fact that the minister is establishing regional tribunals, and that there is no definition of tribunals, section 34a(1), which sets up the special education tribunal, ought to have it made clear that that includes both the provincial and the regional tribunals as envisaged by this amendment.
Hon. Miss Stephenson: Section 34a(2) undoubtedly should have added to it, “shall establish one or more tribunals known as special education tribunals, provincial or regional.” Okay? The addition of those three words --
[Failure of sound system.]
Mr. Chairman: Hon. Miss Stephenson moves that section 34a(1) be amended by adding, after the word “tribunals” in line four, the words “provincial or regional.”
Mr. McClellan: We have already covered that.
Hon. Miss Stephenson: Yes, we have.
Mr. Chairman: I will have to ask the committee if it is agreeable to revert to section 34a(1). Is the committee agreeable?
Mr. Foulds: What is the request?
Mr. Chairman: The request is to revert to section 34a(1) and add the words “provincial or regional” in line four.
Mr. Foulds: I am sorry but I can’t find it in the welter of papers before me.
On section 34a(1):
Mr. Chairman: Any questions or comments?
Mr. Foulds: I have a question. I suppose one question is, where the hell are we? I have before me a sheet of amendments that the minister introduced to section 7. Under that, if we are amending the act rather than the bill, I want to know whether we are amending --
Mr. Chairman: Order.
Mr. Foulds: Are we amending this act? Are we amending the bill that is before the House or are we amending the amendments that the minister introduced, and which set of amendments is it that we are amending?
Mr. Chairman: To answer the member for Port Arthur’s question, I asked if the committee was agreeable to revert to section 34a(1) and it agreed.
Mr. Foulds: The difficulty I have with that is, in the mimeographed sheet I have in front of me, section 34a(2) is the section that reads, “Where a principal considers ... ” Is there another section?
Mr. Chairman: Is the honourable member on page five?
Mr. Foulds: It is not on my page five.
Mr. Chairman: Any questions?
Hon. Miss Stephenson: Page five, which was distributed to you much earlier is section 34a(1). For purposes of clarification we should also delete from line one, “subsection 10.” This section should now read: “For the purposes of section 34 the Lieutenant Governor in Council shall establish one or more tribunals known as special education tribunals, provincial or regional, and appoint a secretary of such tribunals.” It does not apply only to subsection 10.
9:50 p.m.
Mr. Chairman: It should read, “For the purposes of section 34.” Delete “subsection 10 of.”
All those in favour of the amendment will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Motion agreed to.
Mr. Chairman: All those in favour of section 7(2), as amended, will please say “aye.”
Those opposed will please say “nay.”
Section 7(2), as amended, agreed to.
In my opinion the ayes have it.
On section 7(3):
Hon. Miss Stephenson: Mr. Chairman, if I may, we have the addition requested by the member for York Centre.
Mr. Chairman: Hon. Miss Stephenson moves that section 7(3) dealing with section 34b be amended by adding the following subsection:
“(6) The tribunal hearing the appeal may (a) dismiss the appeal or (b) grant the appeal and make such order as it considers necessary with respect to the identification or placement of the pupil.”
Motion agreed to.
Mr. Chairman: Those in favour of section 7(3), as amended, will please say “aye.”
Those opposed will please say “nay.”
In my opinion the ayes have it.
Section 7(3) as amended, agreed to.
Mr. Chairman: That completes section 7. I believe the committee agreed to stack the votes and then vote. I cannot do that yet because we have two stacked votes that have to be called. I would like to remind the members this will be a 10-minute bell.
The committee divided on Mr. Sweeney’s amendment to the amendment to section 34(2) of the act as set out in section 7(1) of the bill, which was agreed to on the following vote:
Ayes 54; nays 25.
The committee divided on Mr. Sweeney’s amendment to the amendment to section 34(3) of the act as set out in section 7(1) of the bill, which was agreed to on the same vote.
The committee divided on section 7, as amended, which was agreed to on the following vote:
Ayes 54; nays 25.
The Deputy Chairman: I believe the member for Bellwoods reserved the right to introduce a new subsection if those other amendments carried. Does he still wish to do so?
Mr. McClellan: Mr. Chairman, I had hoped to move an amendment which would have provided for a substantial appeal procedure with respect to the remaining two items on exceptional pupils, the question of what kind of special education programs or special education services a child would get. Instead we have the Mickey Mouse proposal the House has just passed, and my amendment would be out of order.
Bill 82, as amended, reported.
On motion by Hon. Miss Stephenson, the committee of the whole House reported one bill with amendments.
10:10 p.m.
ASSESSMENT AMENDMENT ACT
Hon. Mr. Maeck moved second reading of Bill 185. An Act to amend the Assessment Act.
Hon. Mr. Maeck: Mr. Speaker, I have a short opening statement. This is a bill that all members of the House are familiar with because it is an annual bill that we bring in. When I introduced Bill 185 for first reading on November 13 --
Mr. Nixon: Look what the minister is doing to the House.
Mr. Speaker: Order. Order. Will the honourable members please keep their conversations down? If you are leaving, leave quietly.
Hon. Mr. Maeck: I knew this was not a popular bill, Mr. Speaker, but I did not realize they were all going to leave. I thought some would stay around.
Mr. Speaker: I want to assure the honourable minister that I am listening, if no one else is.
Hon. Mr. Maeck: When I introduced Bill 185 for first reading on November 13, 1 made some explanatory comments which I would like to expand upon as we begin to consider the bill in detail.
The majority of the amendments are of an administrative nature. They update and provide further clarification on certain operating provisions within the Assessment Act. However, the major thrust of the bill is to postpone until December 1981 the return of assessment rolls to full market value and to continue the section 86(3) reassessment program.
As you know, Mr. Speaker, in 1978 the government made available to municipalities the section 86 reassessment program. This bill will ensure that assessment rolls remain frozen for a further year and that the section 86(3) reassessment program is available to municipalities and school boards in unorganized territories to correct inequalities within classes of properties without allowing tax shifts from one class of property to another.
Since its introduction, the section 86(3) program has been implemented successfully in 108 municipalities. Approximately 130 more municipalities will be reassessed under section 86(3) for 1981 taxation purposes. The interest expressed by these municipalities indicates substantial support for this program. Indeed, the Association of Municipalities of Ontario has endorsed the section 86(3) program as a valuable first step in the move to property tax reform.
Mr. Laughren: The minister should smile when he says that.
Hon. Mr. Maeck: I say to the member for Nickel Belt that this is very legitimate information.
I have no further information to offer at this time. The members are all familiar with this bill because it has been before the House, I believe, seven times. To go into further detail would probably be a waste of time on my part.
Mr. Haggerty: Mr. Speaker, I do not know if I can follow the minister’s opening comments due to the noise in the Legislature.
I will address Bill 185, An Act to amend the Assessment Act, with some reluctance. It seems to be an annual event that has been going on now for about five years. I believe it is annually since 1975 that we have brought in the normal amendment to defer the market value assessment and the continuation of the section 86(3) program.
I think the seed for a market value assessment concept was planted some 10 or 12 years ago. It was widely acknowledged that the Ontario property tax assessments contained many inequities, and through government action they are, in most municipalities in Ontario, frozen at the level of the value shown on the 1970 assessment rolls. The unjust property assessment inequities continue to grow, affecting residential property taxes in almost every municipality in Ontario.
Since all assessment is the responsibility of the province there has been no noticeable improvement in municipal assessment practices, and the ability to maintain equity is a long way off.
If one accepts the voluntary program initiated by the minister under section 86(3) of the Assessment Act, the Ontario government’s present policy of using section 86 to implement reassessment within classes of property based on the 1975 market value is not satisfactory. It leads to unfair shifts in property tax burdens in counties and regions, burdening some of the municipalities that have undertaken reassessment. Moreover, this piecemeal approach will not create a uniformly wide base for the proposed grants and cost-sharing which was the main purpose of the assessment reform.
I find alarming the concern expressed by the policy statement on market value assessment issued by the Institute of Municipal Assessors of Ontario in May 1980. I quote from that statement:
“Inequities are produced by the passage of time as property values do not change uniformly across all classes of property or in all areas of municipalities. Market value assessments can be readily updated every two or three years to prevent such inequities. Consequently, market value assessments would produce assessments that would be both equitable and demonstrably fair, and would no longer be considered to be the product of an arbitrary application of some remote process.
“The Institute of Municipal Assessors of Ontario wishes to express its deep concern regarding the serious inequities that presently exist and continue to multiply as consequences of the obsolete assessment system maintained in most municipalities in Ontario. The institute therefore respectfully urges all members of the Legislative Assembly to recognize the gravity of the situation, and take all necessary steps to provide the remedy of implementation of market value assessment throughout Ontario.
“Implicit in the market value concept is the historically socially accepted proposition that municipal taxes should be based on property values which reflect long-term ratepayer investment and commitment. If public policy dictates differentiation in the tax burden as among ratepayers or classes of ratepayers, such differentiation should be apparent and not hidden.
“At the present time, the system hides the fact the tax burden is unevenly distributed. Equally important is the fact that these disparities are the result of changes in values over many years rather than a result of any stated policy.
“At the present time, due to the variety of mythologies employed, the special knowledge and subjective judgements inherent in the present assessment process, the statutory restrictions upon the disclosure of information, the lack of information available even to the assessors as the result of the age of the records and the disappearance of the authors of these records, and the further statutory restrictions upon the taxpayer’s ability to compare his or her assessment with other assessments in the same municipality, the municipal taxpayer is simply unable to determine whether he or she is being treated fairly.”
That does not speak too highly of the minister’s program in the deferment of market value assessment and the continuation of the section 86(3) program. I suggest that is an alarming statement. I think this is the indication the municipal assessors have been trying to bring forward to this government for, I should say, 20 years -- it is 15 years anyway, that is for sure.
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It has continued since 1970, when they had great hopes of removing the inequity in municipal assessment. The previous Treasurer, Darcy McKeough, indicated over the years that some measures had to be taken to improve the assessment practices in the province. Year after year we have seen the minister bring in an amendment for further deferment of market value assessment.
I have said on previous occasions it is a rather tough area to move into, but I think it could have been done on reasonable terms and on a reasonable basis. Year after year as I stand up here I repeat, the same as the minister repeats the introduction of the amendment to the Assessment Act, if he had made the manual mandatory across the province and given it to each municipal assessor it would have been completed by now. The inequities would have disappeared. We would have had market value assessment, or revaluation or reassessment of all property in Ontario, whatever method the minister wants to apply. It is a problem that I do not think section 86(3) is going to resolve because we come to the apportioned cost and I don’t believe section 86(3) touches the industrial or commercial assessment.
Hon. Mr. Maeck: Yes.
Mr. Haggerty: I thought it was just residential property within a municipality of the same nature. The minister says it does relate to industrial assessment.
I think this is one area where there is difficulty in accepting market value assessment because the approach value taken for the guidelines of the criteria established by the ministry, which assessors have to apply, is the difficulty as it relates to residential property and the shifting of property tax more on to residential property than applies to commercial or industrial assessment. That is the area the minister has encountered over the years, the matter of how one arrives at an assessment on industrial property. There is no way I know of, or that even the minister is aware of, that can actually put a true value on industrial assessment. They are not being sold every day. Perhaps more are going into receivership now than ever. I do not know how you can arrive at a value there.
This is an area the ministry should have looked at before getting into the area of market value assessment. They used the wrong calculation some place in arriving at a fair value of industrial assessment. I suppose the minister could look at the current buildings going up and, from the construction costs, can arrive at a reasonable value on industrial assessment, but I do not think he can find a fair way to bring about older industrial assessment. I suggest that is the area the ministry should be looking at.
I suggest to the minister he can improve market value assessment. I suggested to the ministry staff it should bring in market value assessment at a different rate. There have been enough studies in this area to suggest market value should be 50 per cent of the assessed market value. Why not bring it in at 25 per cent and then phase it in over a period of five years and move in that direction? It may resolve some of the problems in the municipalities.
It is indicated there are 180 municipalities that have requested reassessment under section 88(3). There are some 600 more municipalities that would have to move in that direction. There are two now in the Niagara region that have accepted section 88(3) for reassessment, the town of Niagara and the township of Wainfleet. I tell the minister, that is going to cause a problem with the regional costs and apportionment costs alone.
I think when one or two municipalities request revaluation or reassessment in a municipality under section 86(3), it should apply across the whole region; or, if a municipality applies it within a county structure, the same thing should apply. Reassessment should take place in every municipality to remove the inequities across the whole region or county. What is bound to happen now is not going to remove the unjust apportionment costs that may follow reassessment under section 86(3).
When we look at reassessment, I think the province should be looking at another area, of revenue sharing agreements. The province should return to paying the higher share of the educational tax. That is one area, if you move into market value, in which, if you pick up 60 per cent of the costs of education instead of 51 per cent, the burden on the property tax payer will be reduced. That is another area that should be taken into consideration when one looks at property reassessment and property tax reform.
I also think there should be further consideration to be given to part of a better revenue sharing deal, modifying the existing transfer systems so as to reduce the reliance on a per capita formula, a policy that has a determined effect on those municipalities which are not growing. In many cases -- to use the township of Wainfleet, for example: here is a rural municipality that is not going to have the industrial base or even the commercial base. On a reassessment under section 83, they could be penalized severely under the regional system of taxation for other costs and so on.
Hon. Mr. Maeck: But we do not increase their assessment rate.
Mr. Haggerty: Oh yes, there will be additional costs as it relates to the apportionment costs for the roads and for welfare services within the municipality, and apportionment costs for what -- even library services and children’s aid.
Hon. Mr. Maeck: We do not increase their assessment rates.
Mr. Haggerty: No, it is just moved from one -- the factor, whatever it may be, is still maintained under the present assessment. If it is $4 million or $6 million, that level is still maintained. All one is doing is juggling the figures around. Someone comes along and says, “This property here may be assessed at $1,000 too high. We will lower that and we will assess this one here $1,000.” All one is doing is exchanging the value figures on property which may not even be correct.
Hon. Mr. Maeck: But the total assessment remains the same.
Mr. Haggerty: I still do not think the inequities are going to be removed under the present system. To remove any mistrust that now exists, even under the section 86(3) assessment, if it is used in certain municipalities, I would recommend to the minister that where section 86(3) is requested by a municipal council for purposes of revaluation of property of similar nature, the minister consider contracting out the new evaluation; thus we can bring in independent property appraisers for the purpose of checking out the methodology, and for the use of provincial assessors. It is time now for the assessment practices and the methodology to be subject to the scrutiny of the public and of the provincial assessors.
In other words, let the peers -- the taxpayers -- be the judge of that. I suggest this is an area wherein I would consider contracting out, under section 86(3), to see how accurate the minister’s policy or criteria for assessment are in Ontario. He may find out there are a number of discrepancies within that municipality that may be corrected by an independent appraiser’s approach to it.
On motion by Mr. Haggerty, the debate was adjourned.
The House adjourned at 10:29 p.m.