LEGISLATIVE ASSEMBLY OF ONTARIO
ASSEMBLÉE LÉGISLATIVE DE L'ONTARIO
Monday 16 October 2006 Lundi 16 octobre 2006
The House met at 1845.
ORDERS OF THE DAY
ACCESS TO JUSTICE ACT, 2006 /
LOI DE 2006
SUR L'ACCÈS À LA JUSTICE
Resuming the debate adjourned on October 5, 2006, on the motion for third reading of Bill 14, An Act to promote access to justice by amending or repealing various Acts and by enacting the Legislation Act, 2006 / Projet de loi 14, Loi visant à promouvoir l'accès à la justice en modifiant ou abrogeant diverses lois et en édictant la Loi de 2006 sur la législation.
The Acting Speaker (Mr. Michael Prue): My understanding is that on the last occasion, Mr. Kormos had finished his debate. The rotation now goes to the governing party.
Mr. Bob Delaney (Mississauga West): It's a pleasure to stand and speak on Bill 14 tonight. People will say, "What is it that Bill 14 does?" Bill 14 is a collection of things that just do a little bit of cleanup on some of the measures that improve, as the act says in its title, access to justice. I'm going to talk about a few of the provisions of the bill, specifically three: amendments to the Justices of the Peace Act, amendments to the Provincial Offences Act and amendments to the Legislation Act.
Let me start with the Justices of the Peace Act. One of the first contact points that most people have with the justice system is, if they are before a court, very often they're before a justice of the peace. Many of the justices of the peace, indeed most of them, do a very good job, and people might often say, "Well, not all of them are lawyers. Where exactly do justices of the peace come from?" One of the things this act does is codify where justices of the peace come from. It modernizes the JP bench -- "JP" being, of course, justices of the peace -- by creating something that hitherto had really not existed: minimum qualifications for justices of the peace.
Now, you might think, if you're going to appoint someone a justice, surely to heaven somewhere there's a job description, a set of hiring criteria, a process by which you're evaluated, a process by which, after performing as a justice of the peace, people can file complaints or discipline, where you get your review; in fact, many people would be surprised to find that hitherto there wasn't.
One of the things this act does is modernize that process for selecting justices of the peace. It creates minimum qualifications for JPs. It updates the complaints and discipline process. It creates a Justices of the Peace Appointments Advisory Committee that, among other things, advertises for positions -- which has already happened -- interviews and recommends JP candidates. The bill also allows for appointment of per diem JPs. What is a per diem JP? "Per diem," of course is derived from the Latin, meaning "per day." Retired JPs, for example, can be assigned to specific proceedings, perhaps on a temporary basis. For example, Provincial Offences Act proceedings can be assigned when other JPs are not available, when the workload may permit or whatever.
Committee amendments, when this bill went to committee, recognized the need to enhance aboriginal representation and also diversity on the JP bench by providing that a JP familiar with aboriginal affairs will always be part of the appointments committee.
In my last two minutes, I want to cover two other very short points. Amendments to the Provincial Offences Act would improve efficiency by allowing witnesses to testify by video conferencing. Supposing, for example, you live up in Barrie or somewhere out of town and there's a court proceeding going on several hours' drive from you. Maybe your part in it would be to say, "Were you in such-and-such a place at such-and-such a time? Did you take this picture? Are you familiar with this piece of evidence?" This would allow you to do it by video conferencing.
For example, it wouldn't give up to counsel the right to cross-examine someone; it would just mean that instead of physically being present and physically having to travel, perhaps in bad weather for an hour, two hours or whatever, you can video-conference your way in -- perfect sense in the 21st century.
The other one that makes sense in the 21st-century context is to recognize modern practices and technology that regulate the ways laws are publicized and interpreted. In other words, the e-Laws that are published on the official websites would then become the official version of statutes. Right now, the official version is what is printed on paper, and in this case, the only change would be that the official version, instead of being etched on paper, is in fact etched in silicon.
Those are the three major parts of the Access to Justice Act, Bill 14, that I had planned to address. Certainly, with an IT background, I see very little risk to Ontario in having people give testimony by video conferencing. At the moment, in most businesses, the electronic version is the official version. I think, in this case, it would be a good time for government to catch up and be where everybody else is in the 21st century. Thank you.
The Acting Speaker: Questions and comments?
Mr. Robert W. Runciman (Leeds-Grenville): I appreciate the member's intervention. I guess it's not an intervention; it's really a contribution to the discussion this evening surrounding Bill 14.
I am not sure if we have any paralegals in the gallery -- I guess we have one. I felt, by the volume of e-mails we've all been receiving over the past couple of weeks, that the galleries would be filled this evening, but that is not the case. That is unfortunate in some respects, because hopefully it would have an impact on the members of the government, who have made a decision to allow their leadership effectively to pass this legislation which potentially could have a dramatic impact on the ability to make a living for many in the paralegal profession. More importantly, it may have a negative impact in terms of the bigger question related to the title on this legislation, "Access to Justice."
I think that should be a concern of each and every member of this assembly. You would hope that the intent of this legislation would be to improve access, to increase access for every citizen in this province, especially those who are less fortunate in society, those low-income earners, those who go through a variety of challenges in their lives, to provide them with options. They have to look at, perhaps, a high-priced lawyer -- and I say "high-priced" in the sense of several hundred dollars an hour -- to review their case and make representation on their behalf, or a paralegal which they can afford, versus no representation. And unfortunately, in too many situations, it's no representation.
Mr. Peter Kormos (Niagara Centre): The government member for Mississauga West made his comments with breathtaking brevity. I listened carefully and I appreciate his participation in the debate. I think it's important. One of the reasons why we have debate here is so that folks we represent know where we stand on any number of bills that go through this House, and why we're voting the way we're voting, for those bills or against them. In the case of Bill 14, the sad observation is that this bill has been hurried and rushed and that the flaws in the bill erupted during the course of trying to ram this bill through the committee.
I know we're going to hear the member for Leeds-Grenville, Mr. Runciman, in but a few minutes do the lead for his caucus, his analysis, his critique of the bill. Sitting on that justice committee with Mr. Runciman was a delight, because there is something to be said for experience here, and Mr. Runciman, as a long-time member of the Legislature, by now thought he had seen it all. But his jaw struck the table with the same force as more junior members of that committee when he saw a bill, Bill 14, that was so thoroughly flawed and when he saw a total failure on the part of the government to reconcile some obvious contradictions: the fundamental observation and the fundamental reality about this bill, as has been noted by Mr. Justice Cory, amongst others, that there's an inherent conflict of interest between lawyers and paralegals. The fact is that nobody disputes the ability of the law society to regulate paralegals, but nobody disputes the ability of the Ontario College of Physicians and Surgeons to regulate lawyers. There's a conflict of interest. The government had every opportunity to address that and didn't do that. This bill shouldn't be in third reading. This bill should still be in committee or, more importantly, more significantly, it should be withdrawn until it's prepared properly.
Mr. David Zimmer (Willowdale): If I may just address the member from Niagara Centre, he spoke about conflict of interest of the law society. I think members of the House should bear in mind that, under the act, the law society is setting up a paralegal committee. It's the paralegal committee that is going to be the principal overseer of the paralegal community.
Now, how is that committee of the law society made up? It's made up with a majority of paralegal members of the law society. There are a number of lawyers on it, but paralegals have the majority. More importantly, the chair of that paralegal committee will be a paralegal. The paralegal committee, then, will govern and report to the law society. But that committee is a very, very powerful committee. Think of it: Paralegal members are now paralegal members of the law society, with their own committee; the majority of the votes on that committee and the chair is a paralegal -- the power to set the agenda, the power to oversee the work of the committee.
My second point that I would like to make: We talked about equal justice. In fact, the regulation of paralegals contributes to equal justice in this way: Right now if someone goes and hires a lawyer, the lawyer has insurance to cover errors and omissions, the lawyer is subject to a strict code of conduct, and the lawyer is subject to a disciplinary process if he breaches his or her obligations as a lawyer. Under the paralegal regulation, the paralegals will now -- guess what? -- like lawyers, they will be required to have insurance to protect against negligent claims, errors and omissions; they'll be subjected to a professional code of conduct and disciplined for breaches of that code of conduct, and they'll be subjected to very strict requirements about training so they can carry out their duties. It's equal justice for all.
Mr. Toby Barrett (Haldimand-Norfolk-Brant): I just wanted to comment a bit as we commence debate on Bill 14. As we know, the title is the Access to Justice Act. People have a perception when they see a title like this. They actually expect a bit more than a discussion of the appointment of justices of the peace or a discussion of some of the issues that paralegals have brought forward to us for a number of years. The title, obviously, does not mention paralegals; it does not mention any reference to justices of the peace. I'm just concerned, and there is talk, that in spite of the title, "Access to Justice," the question remains: What does this have to do with justice? I'm suggesting a bill that perhaps has been misnamed.
It reminds me of the source water protection legislation we've been debating recently. Over time, there was a change in direction of public relations initiatives, if you will, and the source water protection legislation -- we'd used that term for years and years; really, since the Justice O'Connor recommendations -- and it was given the title the Clean Water Act, not that water protection was necessarily and solely focused on clean water. It suggests to me that this government has a strategy. It's a strategy of saying what they think people want to hear. They understand that people understand that "justice" has a nice ring to it.
But that doesn't necessarily mean the legislation we're debating tonight concerns justice. It reminds me of a change in wording, something we became aware of in that book by George Orwell, where, for example, the Ministry of Love was responsible for punishment.
The Acting Speaker: The member for Mississauga West.
Mr. Delaney: I appreciate the comments by my colleagues from Leeds-Grenville, Niagara Centre, Willowdale and Haldimand-Norfolk-Brant. I remind them, of course, that the status quo for paralegals is still caveat emptor, or buyer beware; that there is in fact, at the moment, no framework, no standards whatsoever for paralegal work; and that the provisions of this particular bill are intended to benefit consumers and to create a level playing field for all who practise the law.
To my colleague from Niagara Centre, to use his own words, "breathtaking brevity" -- I take that as high praise for any politician. It does remind me of something I learned when I was involved in the practice of public relations and advertising and writing copy, which goes as follows: "The job is not done when there's nothing left to put in; the job is done when there is nothing left to throw out."
I especially appreciated the comments of the member from Willowdale, who put his usual impartial structure and his dispassionate logic to work in explaining some of the truly exhaustive work that has gone into this bill. This is a bill with which he has been involved for months and months. He deserves a lot of credit for the great deal of work that he has done. What it's done, as I said earlier, is to bring a system of checks and balances, to protect the people who practise any branch of the law, be they lawyers, be they paralegals, and especially be they consumers who actually need representation. I certainly congratulate him and the Attorney General on the excellent work that they've done throughout this bill, and I certainly look forward to its passage.
To the member from Haldimand-Norfolk-Brant, I guess he's still against clean water, even though we're not debating Bill 43 tonight.
The Acting Speaker: Further debate? This is the leadoff.
Mr. Runciman: A little delayed, Mr. Speaker, but this is the leadoff. I want to thank my colleague Mrs. Elliott, who is now officially the full-time critic for the Ministry of the Attorney General. I'm not sure what my title is, but I'm going to be in some way, shape or form, hopefully, supporting her as time goes by with respect to this portfolio, because there are certainly more than enough concerns surrounding the Attorney General's ministry in this province for two people to take on that challenge.
I appreciate the opportunity. I'm told there are a few paralegals in the public galleries, and hopefully we'll see more and more of them involved and engaged come September 2007, leading into October 4, 2007 -- I believe it is October 4 -- with respect to not just this piece of legislation but other failures of the provincial government with respect to so many promises we heard this government make when they were in opposition and running for election and their failure to keep them. We've heard this theme over and over again -- saying anything to get elected -- and certainly that was the case in the justice file as well.
I want to mention a couple of process things here with respect to Bill 14. Being in government for a little over eight years and being House leader of the official opposition, I haven't had, certainly in government, the opportunity to serve on standing committees of the Legislature. As House leader, I am not a member of a standing committee, so I haven't had that many opportunities to sit in on committee for quite a number of years, so this was the first extensive time since my earlier years in opposition. I have to say how impressed I was with the member for Whitby-Ajax, who is a very new member of this assembly and a very new member of our caucus but a very experienced lawyer and very articulate, very capable and, I have to say, very, very impressive in terms of the way that she handled the issues and represented the interests of so many people who feel let down by this legislation, to say the least.
I also want to comment on another member who sat on the opposition side of the committee room. He is the House leader for the third party, the NDP: Mr. Kormos. Niagara Centre is his riding. I certainly have known Mr. Kormos, the member, for a great many years, and we've been in opposition together in the past. We shared critic responsibilities in the past early on in the auto insurance file when Mr. Kormos set the record for speaking in this place. I forget what it was, 15 or 16 hours --
Ms. Shelley Martel (Nickel Belt): Seventeen.
Mr. Runciman: Seventeen hours. I followed him. We were the third party then, and I spoke for seven hours. That was pretty exhausting for me, but Peter's younger --
Mr. Runciman: Yes, at least he had a little more energy back then. But I have to say that sitting with him on the opposition benches in committee was certainly refreshing and really reminded me of his outstanding abilities, his insights with respect to the justice system. Whatever you may think -- I know that when I was sitting on the government benches, as I did for eight and a half years, there were times when I was upset with the member for Niagara Centre, but I always respected his ability to represent the constituency that his party speaks for in this place. We certainly need those voices, and he does it in a commendable fashion, and has done so for years. I wanted to put that on the record.
I also wanted to, about the process, express my concerns about the lack of participation by members of the governing party. I'm not trying to be critical of individual members; that's certainly not my intent. But the fact of the matter is that we had sort of a revolving-door process in that committee, where very few people were there on a consistent basis to hear the testimony of witnesses coming before us. If you're not there on a consistent basis to hear that kind of input and receive that kind of input, if you're looking at it from the sidelines, you have to wonder how anyone can be really objective about the process, sincere about the process: "We're really listening and we're going to make sure that your concerns are addressed in the final version of the legislation." All of the messages from the government benches in committee were the wrong ones in terms of public perception, certainly from my side of the aisle, especially when we heard so much rhetoric from this government when they were in opposition and since they've assumed office with respect to democratic renewal, giving backbenchers a greater role in the business of this place.
That process, from my perspective, put the lie to all of those claims. The reality is that members were there because they were either asked or required by their chief whip to be there. They weren't there because of any genuine interest in the subject matter or to play any meaningful role, because they were only there for a day or two or three, and then they were gone. I think what was perhaps the most disturbing for us sitting on the opposition chairs was the fact that when we went through clause-by-clause consideration of the legislation -- for those people who are viewing and may not be familiar with the process here, that is when the opposition parties bring in amendments and when the government brings in amendments. We debate those amendments, we vote on those amendments and that ultimately results in the final version of the bill that comes to this House for third reading and passage.
There's a situation where three out of the five members who represented the government during clause-by-clause had never sat through one day of the committee hearings process. They hadn't heard one witness; not one witness. So they're there -- three out of the five government members sitting on that committee who are going to put up their hands -- and they're going to vote on the amendments without hearing one word of testimony before that committee. What does that say to you? What does that say to any caring Ontarian who looks at the processes in this place and likes to believe that their vote counts, that the person representing them is actually representing them when it matters in this place, when they're making decisions, when they're voting? What kind of signal does that send out? I think it's a very, very depressing signal about the situation in the province of Ontario.
I don't want to be solely critical of the government that happens to be the government today, because I've been around this place for a long time and I've seen governments of all three political stripes operate in much the same way, and it's truly, truly unfortunate. I think it's a significant cause for the loss of enthusiasm, the loss of interest, the loss of caring about the democratic processes in this province and in this country, because they are not truly democratic, in that individual members have lost their way. They are all now, and have been for some period of time, people who obey -- and I don't think that's too strong a word -- the direction of the chief whip of their party when they're in government. We saw that very, very clearly during this committee process, where you had people there who did not hear one moment of testimony voting on critically important amendments to the legislation and simply doing whatever the whip of the committee told them they should do -- if you're voting yes or you're voting no. You're simply there to put your hand up.
I know that -- I could sense, anyway; I shouldn't say that I know -- in certain situations during the course of the debate, when perhaps we were talking about medical malpractice, which my colleague Mrs. Elliott spoke so eloquently about, and whether we should have structured settlements or lump sum settlements, I could sense that those members who had not been there for the hearings were affected by the debate and the discussion, even though they didn't participate for the most part, and, if they had their own way, would probably have supported the opposition amendments with respect to -- I won't talk about medical malpractice in this situation, but there were other elements of the discussion and amendments put forward by the opposition that I think, in a truly democratic system, we could have seen support from government backbenchers and dramatically improved this piece of legislation.
I've spent a fair amount of time on process, and I wanted to put those concerns on the record. I didn't want to be terribly partisan here, because I've seen these faults occur with all three parties in government. I have some hope with the leader of my party, Mr. Tory, that he is very sincere about seeing that change if we have the good fortune to form the government next year. We certainly heard the rhetoric from the other side, and, truly regrettably, that's all it has been.
I do want to talk about this legislation in a little more detail. I guess you'd say that they threw everything but the kitchen sink into this. Both opposition parties had indicated to the government, to the Attorney General, an interest in moving forward with regulation of paralegals, and the Attorney General, on a number of occasions, had indicated his interest in doing that. But I think we all assumed that this would be stand-alone legislation, that we would be dealing with this single important issue: the regulation of paralegals. Of course, we now know that it was anything but a stand-alone piece of legislation. It covered a whole range of issues, some of them quite controversial. I mentioned the medical malpractice issue. That's just one of them, and I'll get into a number of others as I go through my commentary this evening. But it's certainly unfortunate. I think we could have dealt with a stand-alone piece of legislation on paralegals in a much more timely way. That was the indication and I think that was the commitment from the opposition parties. At the end of the day, we may still not have agreed on the direction the government's taken here, but I think it wouldn't have been as involved in terms of public hearings and in terms of the length of debate required on second and third readings.
I think it's fair to say that the public hearings were dominated by witnesses who wanted to deal with the paralegal elements of this legislation. I'm not sure what the ratio would have been, but I'm guessing probably 70% to 75% of the witnesses who appeared were appearing to talk about that particular part of the bill.
I have to say that going into this process, when the issue of the Law Society of Upper Canada being the regulator was raised with me, I was not opposed to it; I think I was quite receptive to that as a possibility. I met with a number of folks and with representatives of the Law Society of Upper Canada when this was raised and certainly indicated that I was open to that, as the critic for the party at the time, and not opposed. I think that my view of this has evolved. I stressed to you the importance of witnesses and the importance of listening to witnesses and hearing the kind of testimony that comes before a committee in the public hearing process. That affected me and affected my view of who should be the regulator and who should not be the regulator.
As I said, it was an evolutionary process in learning more about the subject and in studying some of the commentary that had been made in the past with respect to this initiative from Justice Cory and Dr. Ianni, who was the dean of the law school at the University of Windsor. Both of those gentlemen, who had conducted reviews and made recommendations to the governments of the day with respect to regulation of paralegals, had recommended against regulation by the Law Society of Upper Canada, and stressed, in no uncertain terms, their rationale for those recommendations. Over time, I came to share that perspective.
There were contributions made by witnesses who suggested alternatives to the Law Society of Upper Canada. I think there was a sense, an agreed-upon perspective, that paralegals themselves are not ready for self-regulation. There were some witnesses and testimony with respect to attempts to encourage the development of a body that would assist them in a movement toward self-regulation, but for a variety of reasons that wasn't successful.
At the same time, there are a number of issues surrounding conflict -- which I know the parliamentary assistant has and will disagree with -- a whole range of other considerations, especially if you reflect on the commentary by people like Justice Cory. I know I have a quote in here from Justice Cory, which I think has been used by others: "It is ... fundamental ... that paralegals be independent of ... the Law Society of Upper Canada." This is Justice Cory, and the dean of the University of Windsor law school echoed that refrain as well.
When you have folks of that calibre saying those things, I think it reinforces much of the testimony we heard during the hearings process. It certainly helped to persuade me that it wasn't the right direction and that the alternatives that were proposed were reasonable and made sense. I think they would have, by and large, received significant support from all, not just the paralegal profession but probably most of the legal profession as well. I think the concern was surrounding regulation itself.
The recommendations were that government regulate. This is not a unique kind of perspective; this is not groundbreaking. This is something that the government has played a role in for many, many years in terms of regulation of a variety of industries and professions. We've seen a significant movement over the past 10 years toward self-regulation, but having served as a former consumer minister and being involved in some of the self-regulation evolution, I know that this is a process that could work. But I think what was suggested by some of the witnesses was that currently the Ministry of Government Services would assume the responsibility for regulation, but with the goal in mind over a period of time of encouraging and assisting the profession itself to move toward self-regulation. Whether that's five years or 10 years, that would be the ultimate goal. That certainly is a process that has worked in the past, and I see no reason why it could not work in the future. But, for some reason, I don't believe it was even a consideration of the Attorney General, and only the Attorney General can explain to us why it wasn't, why he didn't give that appropriate consideration.
Was it a cost factor? I'm not sure, because there are going to be costs associated with providing assistance to the Law Society of Upper Canada in moving in this direction. So I'm not sure why that decision was taken, but at the end of the day our party, the Progressive Conservative Party, believes that that would have been the appropriate direction -- regulation through the Ministry of Government Services, with the clear intent over a period of time, when the profession and the government felt it was appropriate and that the profession itself was ready to make that move, self-regulation would become a reality.
But now we've gone down a path that I think virtually rules out self-regulation. What you're talking about here is transferring this responsibility to the Law Society of Upper Canada. I don't see a day under this legislation where self-regulation is in the cards, and certainly was never referenced by the government, the parliamentary assistant or the minister that this was some sort of endgame; we're going to move this toward the Law Society of Upper Canada but over a period of 10 or 15 years, or five years, whatever it might be, that we see a light at the end of the tunnel in terms of self-regulation. If that commitment was made, I don't recall it. If the parliamentary assistant responds later and indicates that that was the case, we'd love to see something in writing with respect to that, and I'm sure paralegals would love to see something in writing with respect to that. But I don't see it happening.
I talked about the process, and I know that probably some of us, if not all of us, have been flooded with e-mails over the past couple of weeks from paralegals who are very concerned and want the bill amended now that we're into third reading. Of course, most people I don't think have an appreciation of the process in this place,. It's pretty rare, when you get to third reading, that we're going to go into committee of the whole and amend a bill on third reading. That just is highly unusual. But people generally don't understand the process, and so they make a request of this nature and unfortunately it simply isn't going to happen.
Of course, we knew that it wasn't going to happen when we brought forward all of the amendments during the committee hearings process. It's unfortunate but, folks, that is the reality. This bill is going to be voted on either later this week or next week, and I think it's quite predictable that the government members are going to stand up as a person, reservations or not, and support this legislation. That's the bottom line.
I have to say, there were a number of amendments adopted by the government which I think were positive. They brought in, I think, over 100 amendments, which again reinforces the perception that in so many instances this government is kind of a seat-of-the-pants operation, where they bring in legislation which has not been thoroughly thought through, a very significant lack of consultation -- in this case, I think there was virtually no consultation -- and they end up bringing in omnibus amendments to omnibus legislation. It has to be embarrassing. It has to be truly embarrassing.
Hon. George Smitherman (Deputy Premier, Minister of Health and Long-Term Care): Did your committees even sit? You didn't even use committees.
Mr. Runciman: The Minister of Health is trying to get me going here, but I'm going to be reserved this evening. I'm not going to allow him to agitate me and get me into a spitting contest. That's not my intent here this evening, because I know there are genuine concerns about this legislation, certainly in the paralegal community and well beyond that, and other elements of this legislation that I want to touch on that are of concern to me and my caucus.
It is interesting when you look at the contributions to the debate in committee and the people who were very supportive of this legislation. Several county law associations made contributions, and they were all very supportive. Again, I think it raises concerns about this whole business of conflict and some of the issues that have been raised by Justice Cory and Dr. Ianni with respect to a competition for business, and the fact that many members of county law associations perhaps have registered complaints about paralegals, perhaps for all the wrong reasons, some of them perhaps based on competition and the loss of business. Maybe that's reasonable and understandable, but when it is the Law Society of Upper Canada at the end of the day that's going to be the regulatory authority, I think that should set off a few alarm bells as well.
We heard testimony, written testimony and verbal testimony, with respect to Family Court and the fact that in many of these situations we're seeing people appearing in Family Court either unrepresented or unable to afford representation. This especially impacts on, obviously, low-income individuals and, I think, especially women of modest means. That should be a concern when we're talking about access to justice.
I think there's a very valid argument to make with the paralegal situation that, at the end of the day, what might occur here is restricted access to justice, limited access to justice, especially impacting on the less fortunate in the province of Ontario. You would think that would be something this government would be concerned about, something this government would address, but instead they've gone the other direction by leaving the scope of practice definitions, if you will, to be determined by the Law Society of Upper Canada through bylaws. We will see what happens here, but I think people have a legitimate right to be concerned about seeing a narrowing of the scope of practice and significant limitations in terms of access to justice for many, many people in the province of Ontario.
Those are some of my concerns. I know my colleague Mrs. Elliott from Whitby-Ajax talked about medical malpractice. I'm not going to get into any extended discussion about the medical malpractice provisions and the schedule that covers that, but I just reinforce her concerns related to structured settlements being mandated through this legislation and removing the option for lump sums, locking this in and no automatic provisions for cost of living. Who knows what the rationale is for this? We have the Minister of Health here. There was some suggestion that this was some sort of a deal done with the OMA -- I don't know -- as part of the negotiations. Whether it was or not, he can perhaps stand up and respond in a two-minute response later on and confirm or deny that, but certainly that was raised as a possible rationale for moving in this direction. It's difficult to understand that that option would not remain in terms of medical malpractice suits. That's another very, very serious concern on the part of the official opposition.
I want to get into a few of the other areas. We've had a lot of discussion about justices of the peace and the shortage of justices of the peace in the province of Ontario. I put forward, on behalf of our party, a number of recommendations in this regard. We heard some testimony related to this, but it was limited. We had Hazel McCallion; the city of Mississauga was there. Her primary concern was the loss of revenue through Provincial Offences Act fines and the lack of JPs in her community, but of course that's a fairly common problem across the province. The Association of Municipalities of Ontario has estimated that they're losing somewhere in the neighbourhood of $500 million as a result of the shortage of justices of the peace in the province.
The reality is that there are 18 fewer JPs today than there were in 2003 when the Liberal Party assumed the offices of government. The Attorney General has written to stakeholders like the city of Mississauga, the Association of Municipalities of Ontario and many others and has said, "Well, this is all up to Bill 14. Once we pass Bill 14, we'll solve your problems." Of course -- I've got to be parliamentary here -- that was inaccurate. The reality is, several weeks ago the Attorney General appointed seven justices of the peace, and they used the qualification standards for those appointments that are part of Bill 14. So there has been no restriction, no limitation on the Attorney General over the past few years in terms of his ability to recommend to cabinet appointments to become justices of the peace. He simply hasn't done it. Why hasn't he done it? Again, I think you would have to get him here and put him under bright lights and try to get him to confess to why he hasn't done this. Is it a cost-control measure? I don't know. I know it's certainly costing municipalities.
Perhaps an even more important element of this is the public safety element. We have thousands of cases backlogged, and we're talking about many of them as serious offences which are going by the boards because we have a shortage of justices of the peace. I think all of us should be concerned about that from a public safety perspective. Some of these Provincial Offences Act violations are very serious matters indeed, and we should be dealing with them, and dealing with them in a timely way. But that's not what's happening here.
We also put forward an amendment to extend the retirement age for justices of the peace from 70 to 75. Judges now retire at age 75. We know there is a significant number of JPs who are approaching retirement age. I heard the number; I think it's in the range of 20 to 25 in the very near term who are reaching retirement age. The Attorney General and his colleagues were not sympathetic to that amendment, which, again, leaves you scratching your head as to why they would not be sympathetic to something that could address this ongoing shortage of JPs when you're dealing with people who are experienced and are prepared to serve an additional period of time as justices of the peace. I know that the JP association -- I'm not sure what the formal title is. The association representing justices of the peace, is very supportive of this retirement age extension. But they advise me that the Attorney General has refused to even meet with them to discuss not just the retirement issue but other suggestions and ideas they have to address some of the challenges in the courts of the province of Ontario. All of these things puzzle me. This is a very important part of the process in the courts administration in the justice system in Ontario, and the Attorney General refuses to meet with these people. Passing strange, to say the least.
I have been a long-time supporter of establishing a cadre, if you will, a core of part-time justices of the peace, per diem JPs. I've found, in talking to a variety of stakeholders, certainly in the policing community, they felt that when we had per diem JPs, there were significantly fewer problems in terms of access to a justice of the peace than is currently the case. This legislation actually restricts a justice of the peace from acting outside of a courtroom. They can't act outside of a courtroom unless they're part of a limited roster. I think that is mind-boggling that they're not prepared to allow these folks to go out and assist the justice system.
I know we have video remand in many of the courts across the province dealing with remand and bail, but there are situations where video remand is not appropriate, where, if we could have a JP going to a site for a bail hearing -- for example, going into a police station, which they used to do, going into a provincial jail, which they used to do -- now that simply doesn't happen. The Attorney General was trying to say I hate lawyers or suggesting that I hate lawyers, but that's not the case at all. I have a lot of friends who are members of that profession, and I have a great deal of respect for many of them. But I think that --
Mr. Norman W. Sterling (Lanark-Carleton): But not all.
Mr. Runciman: Not all. Feathering their own nest is something that, when you even suggest that that might be a consideration, can certainly upset a great many of them. If you look at what has happened in the justice system over the past 15 or 20 years -- and I do. I admitted in the committee hearings that I have a particular bias here, because my uncle was a provincial judge. He was one of the last lay judges in the province of Ontario: George Runciman. He was the deputy chief of police in the city of Brockville. There was a lot of resentment in the legal profession when he became a judge. They didn't like non-members of the profession becoming judges. He had a tough battle. But I know, talking to people after he retired, how much respect they had for him, the way he handled his court and his judgment. I think there's a place for lay judges, and there's certainly a place for lay JPs. I know there are others who would strongly disagree, but they tend to be lawyers who strongly disagree with that perspective.
I talked to another of the last lay judges in the province, who was out of the city of London, who is now deceased, as is my uncle. He was an RCMP officer. He was telling me that he had gone into a community -- I think it was Stratford. I think the member representing Stratford is here this evening. There was a three-month backlog in this court. The judge was ill. He went in on a temporary basis to replace that judge and he cleaned up that backlog in two weeks.
The judge's court -- it was remand after remand after adjournment after adjournment. This judge, who was a lay judge, was a no-BS kind of person. He was a former cop. The case came before him and his court, and he said, "You've had three adjournments on this case. Get on with the business. I'm going to hear you today," and he cleaned out that BS. There was none of this 10, 11 or 12 remands and adjournments, which are so common in the system today.
When the eminently wise judiciary are giving two- and three-for-one credits for people who are on remand, it's no wonder that some members of the defence bar may want their clients to stay in a provincial lock-up on remand. They're going to get a two- or three-for-one credit, and it may keep them out of a federal penitentiary, and they end up getting a third of the sentence they might otherwise receive.
There are a lot of problems in our justice system, and I think all of us recognize that, but the government was not prepared with respect to this legislation. I think it opened up a lot of opportunities for us to address some of these concerns, and they simply didn't deal with them.
I want to mention that I believe we only had the city of Mississauga appear on this one particular schedule of the legislation, the justice of the peace area, and that was -- no. I apologize. We did have the Police Association of Ontario; Bruce Miller also appeared. He wasn't speaking directly to this, but I asked some questions related to this.
I have to say that one of my serious disappointments in this process was the failure of the Ontario chiefs of police to appear. During my time as a justice minister, one of the frequent concerns I heard from chiefs of police and their association was this whole situation surrounding justices of the peace: lack of availability, getting search warrants, a bail hearing etc. -- a consistent refrain by the chiefs, yet they did not appear before the committee, they failed to appear before the committee, and I found that extremely disappointing.
We had a retired chief appear. He had been a sergeant in the Metro Toronto police and then went to Prince Edward Island as the chief in Charlottetown. He was an honorary member of the Canadian Association of Chiefs of Police. I said, "You know, you don't have to answer this," about an opportunity to appear before us on a justice bill dealing with so many issues -- courts administration, justices of the peace etc. -- "but why wouldn't the chiefs' association take this opportunity to appear?" He wanted to respond. He said he felt it was terrible that the Ontario chiefs did not appear. Speaking as a former chief himself, he said, "All of these opportunities should not be missed to at least make sure that your views are on the record, your concerns are heard by representatives of all three parties and, to some extent, by the public."
That was really an echo of my concern, and I certainly appreciated his support. I don't know why the chiefs didn't appear. I know they're visiting Queen's Park -- I'm not sure if it's this week or next week -- but I'm certainly going to ask them. You have to wonder if they were intimidated by this government. It's tough to see chiefs of police being intimidated. I hope that they can't be intimidated, but I know that this government has, I don't know, a few folks who certainly make every effort to intimidate stakeholders.
I heard a story a while ago about the Premier appearing at a Toronto gathering, and it was a very prestigious group. The master of ceremonies was given the script to introduce the Premier, and in the script it said, "Now, ladies and gentlemen, here's the man described by Maclean's magazine as Mr. Ontario: Dalton McGuinty." That was the script he given. He said, "This is a non-partisan organization; I'm not going to say that. I'll just introduce him. I'll give his bio and say, `Here's the Premier of Ontario.'"
So what happened? He gets a call from a fellow by the name of Don Guy. Ever heard of him? Don Guy, chief of staff to the Premier of the province.
Hon. Marie Bountrogianni (Minister of Intergovernmental Affairs, minister responsible for democratic renewal): And what does this have to do with the bill?
Mr. Runciman: I'm trying to explain that, if you want to listen to me. I'm talking about intimidation and why the chiefs of police didn't appear and one possible reason for that. I'm talking about Don Guy calling up the chairman of this meeting and saying, "You have to describe Mr. McGuinty as Mr. Ontario. There's no ifs, ands or buts. You have to call him Mr. Ontario." And the chap says, "Oh, okay, okay. Look, all right, I'll follow your direction. I'll say this to the crowd: `I was called by the chief of staff of Mr. McGuinty, who told me that I had to introduce the Premier as Mr. Ontario. Here he is: Mr. Ontario."
Dead silence on the phone. Goodbye, goodbye.
This fellow had the intestinal fortitude to tell Mr. Guy where to go, but how many other stakeholders gave in to that kind of intimidation? That's emblematic of this government: trying to intimidate people. I have to suspect, knowing so many of the chiefs of police and having so much respect for the chiefs of this province, that this kind of initiative was undertaken by this government to intimidate the chiefs, maybe in a more subtle way: "If you want changes made to this legislation or if you want this or that, you'd better keep quiet with respect to the significant changes being brought forward in Bill 14," the so-called Access to Justice Act. I don't know. I'm certainly going to ask the chiefs when they're here, either this week or next week.
There are other elements to this which I want to touch on in the few minutes left to me -- some of the elements dealing with courts administration. We put forward a string of very helpful and, in some respects, innovative amendments to the legislation dealing with this schedule. I proposed an amendment which would require an annual report on the administration of the courts, which would be tabled in this Legislature and would include the number of crimes committed while on bail, probation, conditional release or subject to a criminal deportation order.
I think that would have been very helpful, because we know -- we read about it in the newspapers -- that so many crimes are being committed by people on bail. We've heard about being on probation, conditional release, and certainly we've heard, in terms of criminal deportation orders -- I forget the numbers but it was staggering; something like 35,000 or 45,000 people in Ontario with criminal deportation orders on them. It's a staggering number, and very little is being done about it. Having a report tabled in front of us with respect to those kinds of statistics would be very helpful, not only to us as legislators but to the public at large, with respect to what's happening in our courts.
I also suggested through that amendment that the report would include the number of remands per case by court location and/or justice, and it would be categorized by the Criminal Code or the Provincial Offences Act. Of course, the parliamentary assistant almost had a fit on that, in terms of judicial independence -- as much of a fit as he ever has, which is a relatively mild one, I have to say. But he was quite agitated about this, and quite animated about the fact that this is jeopardizing judicial independence and we can't have that kind of information. The great unwashed can't be privy to that kind of information about how our courts operate or don't operate. Again, I disagree with him. I think that this is the kind of information that would be very helpful to all of us in terms of determining how the system is working, the problems being caused by the system itself, and perhaps pinpointing some of the courts where we really have significant problems with respect to these sorts of things occurring on a very regular and frequent basis.
I also suggested an amendment which, again, was defeated, which would require an inquest where a person committed a murder while on release by a justice of the peace or a provincial court judge, and that the judge or justice of the peace be a compellable witness at that inquest. Again, of course, the whole bogeyman of judicial independence raises its head.
If you look at recent criminal acts in this city -- the Yonge Street shooting of a young lady. What was her name? Jane Creba. There were people out on bail who have been subsequently charged in that horrific murder. There was the murder of a young fellow in a car dealership. He was shot in the yard of a car dealership in Toronto by someone who had been released two weeks earlier, who had been chased by police -- with a 44-calibre handgun which he hid under a car. He had been charged with that, yet he was released, and two weeks later, he's been charged. He's the alleged murderer of this very hard-working individual who was trying to escort these people off of a car lot. We have situation after situation like this.
I think that there should be some degree of accountability when you're making decisions which -- and they're difficult decisions; there's no question about it. It's a responsibility that perhaps many of us wouldn't like to carry on our shoulders, and perhaps the laws of the land are not as helpful as they could be.
We've heard the Attorney General and others talk about reverse onus with respect to bail. Maybe those changes have to occur and should occur. We'd certainly support anything that strengthens a judge's or a JP's ability to do their job. But in many instances, I think that we have to have accountability, not just for the JP or the judge but certainly for the crown as well. They should be fighting tooth and nail to ensure that in all situations, where possible, people are not allowed back onto the street. In those situations where horrific crimes occur as a result of those decisions, I believe an inquest is necessary and that the people who have made those decisions should be compellable witnesses. Again, that was not a view shared by the members of the Liberal caucus.
I also proposed an amendment which probably some of my colleagues who are members of the profession wouldn't agree with, but I'm sure the Minister of Health would agree with me on this one. I suggested an amendment which I called the Ken Murray Act. For those of you who don't recall the name Ken Murray, he was the lawyer who represented a fellow by the name of Bernardo. If you recall the situation, Mr. Bernardo told Mr. Murray about a concealed tape, a very graphic and inculpatory videotape, and where he placed it in his home. Mr. Murray went and retrieved it and kept it concealed throughout the Homolka case. From my perspective, I felt that that was obstruction of justice, although he was charged and was not found guilty. Of course, as we know, the reality is that if that tape had been available during the Homolka trial, she would not today be walking the streets as a free woman in the city of Montreal or anywhere in this country that she wishes to walk. That's the reality, and anyone who is aware of the contents of that tape would share that view.
The law society: This was an opportunity, which is rare indeed, to open up the Law Society Act. It's part of this legislation. So I felt that this was a way that we could deal with this issue. It's not groundbreaking, either. The law society, as some of you know, is charged with the self-regulation of lawyers' conduct. I'm told that in the province of Alberta there's something called a practice rule whereby lawyers are compelled to turn over to police or the crown relevant physical inculpatory evidence that comes into their possession. This situation with Murray, if we had a practice rule along those lines, could never happen again. Murray was found not guilty of obstruction of justice, and was not penalized by the Law Society of Upper Canada either, as a result of his conduct. I think that has to bother any right-thinking Ontarian -- or Canadian, for that matter -- especially when they see Ms. Homolka prancing about.
I was also told -- and I haven't been able to confirm this, but I got it from a pretty darn good source -- there was another case in the not-too-distant past where a relatively prominent criminal lawyer was advised by his client of the fact that he had moved and hidden a body. He kept that information to himself, which had an impact on the outcome, ultimately, of that criminal trial.
So I think there are situations that we could and should have addressed in this legislation -- some real opportunities here to make some changes that I think would have improved the justice climate in the province of Ontario, but we've missed them. This legislation, I say regrettably to my friends in the gallery -- who, I am advised, are members of the paralegal profession -- is going to pass, probably this week or early next week. The government members are going to stand up when they're told to stand up. They sit down when they're told to sit down; they speak when they're told to speak; they shut up when they're told to shut up. That's the reality of this place.
There's the chief whip. He's just out there giving instructions. It's a sad reflection on the state of affairs in -- not just in the province of Ontario; it's certainly at the federal level as well. We've seen so much over the past, I don't know what, 20 years or so, where so much power has been vested in the Premier's office and in the Prime Minister's office, and decisions are made effectively by a small group of unelected folks who surround the Premier or the Prime Minister. They make these decisions, and the folks who are elected to represent their constituents more often than not cannot. They're restricted or they're faced with being isolated within their own caucus, removed from the list for promotion, removed from parliamentary assistant jobs or committee chairmanship jobs or particular parliamentary trips that they may have been able to have afforded them. Those are the kinds of limitations and restrictions that are placed on members.
The folks who actually take a different view are few and far between. We have one in our caucus who does it on a regular basis: Mr. Murdoch, Bruce-Grey-Owen Sound. People can say what they wish about Bill Murdoch, but I think that, 99 out of 100 times, he's representing the views of his constituents. He's here to speak up, and he's consistently elected, during the good times and the bad times. When the Conservative Party of Ontario has gone through difficult valleys, who comes up on the other side of the hill? Bill Murdoch is always there. There's a reason for that, and that reason is that he speaks his mind and he doesn't frequently go by the party line unless he agrees with it --
Mr. Dave Levac (Brant): Or he votes against it.
Mr. Runciman: -- or he votes against it, and that's not an infrequent occasion in this place. It's unfortunate that we don't see more and more of that.
My real concerns, trying to summarize in a couple of minutes: I think there are legitimate concerns with respect to the Law Society of Upper Canada being the regulator. From an opposition perspective, we're going to carefully monitor how they deal with the bylaws in terms of scope of practice. We're going to be watching that very carefully. We think there should be increased opportunities. Obviously, we share the view with respect to educational requirements, we want to make sure the people who are representing the interests of Ontarians are qualified to do so, and I think any good paralegal would share that perspective, but we do not want to see a limitation. We'd rather see an expansion of that mandate so that more and more Ontarians can have access to the representation they deserve. What this legislation does is cast the spectre of limiting representation and limiting opportunity for access to real justice in Ontario, and that's unfortunate.
The other areas that I talked about with respect to justice issues: Again, I think we've missed some real opportunities here. There was a closed mind on this, and I'm not criticizing the committee members because, as I said, they have a job to do. They're given direction prior to committees starting, during the process and when it comes to the clause-by-clause consideration. So there's no real ability, I suppose, in many of these respects, to deal with some of the substantive changes that were brought forward by the opposition. I'm sure many members opposite would support many of those initiatives but they don't have the latitude to do so, or they feel they don't have the latitude to do so because the chief whip, the Premier and others say, "You can't do that or you're going to face some serious difficulties in the Liberal Party." Of course, we know the Premier himself has the ability to withdraw nominations in ridings, unlike the Progressive Conservative Party. We don't give that power to our leader.
The Acting Speaker: Questions and comments?
Ms. Martel: In response to the comments that were made by the member for Leeds-Grenville, I want to just read into the record some concerns that have been shared, I would think with all of us, by an individual who I believe is in the gallery tonight. His name is Marshall Yarmus. We got this on October 4. Let me say a couple of things which reinforce what the member from Leeds-Grenville had to say:
"I am a paralegal operating in Toronto....
"This is a bill which will adversely affect the consumers, which it claims to be protecting. It is a bad bill for small business, which relies on paralegals. It is definitely a bad bill for paralegals, as it will immediately force 40% of paralegals out of business. The remaining 60% will be slowly pushed out of business.
"The only group that this bill will benefit is lawyers. I have nothing against lawyers. I do have a problem with this government's failure to listen and act upon paralegals' concerns. I also have a problem with the Law Society of Upper Canada, who are eager" now "to take on the responsibility to regulate paralegals. For 30 years the law society was against regulating paralegals. In 2004 when Mr. Bryant asked the law society to undertake the task, they jumped at it. What changed?
"Under this bill, lawyers will be handed a monopoly on family court representation, uncontested divorces, incorporations, other corporate work, wills and estates.
"There is a blatant conflict of interest in having the law society, who regulates lawyers, also regulate paralegals....
"I spoke at the justice committee hearings on September 6, 2006. I outlined at that time the numerous problems with the bill which I submitted required the paralegal schedule to be removed and reworked. The government failed to take notice of my submission or that of the overwhelming number of paralegals who spoke to the justice committee. I suggest you review Hansard."
I was not at the committee, but I watched quite a bit of it on television, and that is exactly correct. A number of concerns were raised. Very few were listened to by the government.
Mrs. Carol Mitchell (Huron-Bruce): It certainly is my privilege to rise this evening and respond to the comments made by the member from Leeds-Grenville. I come from a municipal background, which many of you in the House are aware of. When I hear comments made about intimidation and our government, and what we are doing in order to move forward a political agenda, I have to say that I am very taken aback. When I think of all the times that that government came before us and repeatedly intimidated every group, from the teachers to the municipal politicians to the nurses, to stand up and bring that forward in such a manner and accuse us, who have repeatedly worked with our stakeholders to bring forward their message, I say to that member, I am completely taken aback by that tone. I just can't believe, when given the opportunity to speak to the bill, and with due respect to the member's background, the history that he brings to this room, to then talk about and accuse the McGuinty government of intimidation, the police chiefs -- I mean, come on.
I just want to say that we have worked very hard at working with all of the many stakeholders in moving forward the province of Ontario. It's something that I personally, from my background and from what we've all brought to the table today, take a great deal of pride in. I just cannot sit in my chair and listen when I hear those comments made, especially from the member for Leeds-Grenville.
Mrs. Christine Elliott (Whitby-Ajax): Thank you for the opportunity to provide some additional comments with respect to Bill 14. Although I have commented on Bill 14 previously, there are some additional concerns that have been voiced to me by my constituents as late as last week that I feel need to be brought forward for consideration by this Legislature.
I was fortunate to participate in a town hall meeting on justice issues in my riding of Whitby-Ajax last week, which was co-sponsored by the Ontario Bar Association. At that time, we invited a number of stakeholders and members of the public to come and speak to us about a variety of issues relating to the courts and justice system. I can say that there were two main themes that emerged as a result of hearing from the public and stakeholders, both of which are directly related to Bill 14.
The first one was the issue of the appointment of justices of the peace, how the need is desperate for more justices to be appointed. Although the Attorney General has indicated that he hasn't been able to appoint justices until Bill 14 is passed, we know that can't be the case because he has already appointed some. So I think he needs to get on with it and deal with the situation and not blame his lack of action on the passage of this bill.
Secondly, the issue of legal aid, the chronic underfunding of legal aid, and the need to increase legal aid funding, particularly in the area of family law, directly affects the paralegal situation because paralegals are currently providing a necessary service in the province of Ontario. Particularly, single women with children are not able to afford any service other than what's provided at high quality and low cost by paralegals. The fear, of course, is that in having the law society as the overseers of paralegals under the new regime, the push and pull will be such that this will be taken away from paralegals. Though I hope this will be justice to the public, I fear it will not be, as a result of this bill.
Mr. Gilles Bisson (Timmins-James Bay): The other day an interesting saying was said to me by my good friend Mr. Marchese, who is my seatmate. He said that in politics there's a little test that you apply to legislation to find out if it's worth doing, and that is: Who's mad, who's glad and who's sad? We know that in the case of this particular legislation, paralegals are certainly mad, and there's a whole bunch of other people. I've been called at my office, and I'm sure my colleague Madame Martel and others have been called, by a number of people who basically are mad about this legislation. They say they don't like it for a host of reasons, which I'll get to talk about when it's my turn for debate, and my good friend Madame Martel will do the same when it's her turn.
Here's the other part. Do you remember I said, "Who's mad"? Now, who's glad? The lawyers. The lawyers are glad, and the Law Society of Upper Canada is happy because they get to oversee what the opposition is doing or the competition is doing, depending on which way you look at it, and so they're certainly glad. But who's sad is what is the most interesting of all, and that is the Honourable Justice Cory, who, back in 2000, had this to say about this whole idea of having the law society oversee the paralegals:
"I would emphasize that it is of fundamental importance that paralegals be independent of both the Law Society of Upper Canada and the province of Ontario. The degree of antipathy" -- antipathy; imagine that as a word. I thought it was quite interesting for him to say that -- "displayed by members of legal organizations towards the work of paralegals is such that the law society should not be in a position to direct the affairs of the paralegals."
So in the words of my good friend and esteemed colleague Mr. Marchese, the member from Trinity-Spadina, we know who's mad: It is the paralegals and others. We know who's glad: It's the lawyers. And we certainly know who is sad: Justice Cory. I say, on that test, the government's got to go back and re-look at this legislation.
The Acting Speaker: Questions and comments? The member from Willowdale.
The Acting Speaker: I'm sorry; it was my mistake. He was the fourth. The member from Leeds-Grenville has two minutes in which to respond.
Mr. Runciman: Thanks, Mr. Speaker. I appreciate the interventions of all the members who participated.
I have to say, I was intrigued by the contribution of the member from Huron-Bruce, who was upset at my suggesting that the Liberal government engages in intimidation and suggested that we intimidated people when we were in government. Boy oh boy, we didn't do much of a job of it. I think I saw them all out on the lawn on a weekly basis here. So I don't think it had anything to do with not appearing before committees, trying to direct people in terms of how they introduce the Premier of the province or a whole range of other issues. Certainly, we've seen it in the health care sector to a significant degree, where there has been intimidation -- some people have described it as bullying -- in that sector.
I'm simply going to take -- I think the member from Timmins raised a good point about who's happy about this outside of the legal profession. This is interesting, a real challenge, when you look at the fact that -- and as consumer minister, I've been through a couple of processes in terms of self-regulation of sectors. But here is the situation, which I think is unprecedented, where we have a profession which is almost to a person opposed to the process here. This is not an agreed-upon process. There was no consultation; there was no effort to involve paralegals in this process in terms of, where do we go from here? This was the Attorney General calling up his friends at the law society and saying, "How would you like to handle this for me?" This is a situation where you have this profession -- I describe it as a profession -- being told by the government, "This is the way it's going to be. You're going to be regulated by this group. End of story." That is not a recipe for success.
The Acting Speaker: Further debate? The member for Nickel Belt.
Ms. Martel: It's a pleasure for me to participate in the debate tonight. I can say, as my colleague from Niagara Centre did when he spoke to this bill on third reading last week, that New Democrats are opposed to this legislation. We don't think it's workable and we find it very interesting that the majority of people who came before the committee, whom the government said they were trying to help, also remained opposed, even to this day.
I want to raise four concerns in the time that I have here this evening. The way I propose to do that is to actually look at some of the submissions that were made to the justice committee, because I think the submissions that were made were excellent. They identified some of the key concerns that the people had with the bill, and the folks who did the submissions could probably say it better than I with respect to what those concerns are. So I want to deal with four very concrete concerns and four or so submissions that outline what the problems seem to be.
The first was a submission that was made by David Kolody and Deirdre McIsaac, and this was with respect to schedule A of the bill. In that schedule, there is a proposal that reads as follows, with respect to periodic payment, medical malpractice actions. The bill proposes this:
"(3) The annuity contract shall satisfy the following criteria:
"1. The annuity contract must be issued by a life insurer.
"2. The annuity must be designed to generate payments in respect of which the beneficiary is not required to pay income taxes.
"3. The annuity must include protection from inflation to a degree reasonably available in the market for such annuities."
The people who made the representation said:
"The wording `must include protection from inflation to a degree reasonably available in the market for such annuities' is ambiguous and there is no explanation what this would actually mean in practice. It will," however, "have two undesirable consequences." They include the following:
"First, the ambiguity leaves open the possibility that future care costs provided in the form of an annuity would not be linked to changes to the consumer price index (CPI). The alternative to CPI-linked is fixed-rate indexing, which does not provide inflation protection. This would transfer the risk of inflation to the victim of medical negligence."
The second undesirable consequence is the following:
"Second, it will increase the costs to litigate a medical negligence case and lengthen the trial. The ambiguity will result in debate between the plaintiff and defendant as to how the criteria `protection from inflation' should be applied and whether this protection is `reasonably available.'
"Both consequences could be avoided by specifying in the legislation that payments from the annuity contract be linked to the rate of change of the consumer price index."
Both of these presenters made the following recommendation to the justice committee: "that the wording of the proposed legislation be changed so that it states that the annuities be linked to the consumer price index.
"The proposed amendments to Bill 14 section 116 will require that future care costs awarded to medical negligence victims be in the form of an annuity and it will remove their right to a lump sum payment. The `lump sum' method provides protection from inflation, and the government must not take away this protection without ensuring that an annuity is also protected from inflation ... by linking it to the CPI.
"Clarifying that annuities will be linked to the CPI will prevent additional conflict being created between parties in a medical negligence case. The proposed legislation in its current form will decrease the chance of a pre-trial settlement and increase the length of a trial."
Did the government listen to the submissions that were made by Mr. Kolody or Ms. McIsaac? Did the government make the changes that were recommended to avoid the two very negative consequences that the presenters outlined? No, the government did not. That was not uncommon, because the government refused to make many, many changes that came to it by presenters before the committee. So that's the first concern with respect to medical malpractice, with respect to the undesirable consequences that will now flow because the government refused to make the changes that would have been necessary to protect these folks in this legislation.
The second group that made an important contribution raised some very specific concerns. This was around the definition of legal services. It was quite an interesting presentation that was made by Peter Bruer, who is manager of conflict resolution services at St. Stephen's Community House. He and a number of other presenters expressed concerns about the definition of legal services. I only want to focus on this particular presentation. He said the following with respect to St. Stephen's House and with respect to the service that they currently offer:
"Our concern with the Access to Justice Act" or Bill 14 "seems to be centred on the wording that defines `legal services.' This wording allows, indeed seems to require, that mediators be included within the legislation's scope. The act describes as `providing legal services' a number of circumstances involving the drafting of written documents, for example" in clause (6)2(i), "`a document that might affect a person's interests in or rights to or in real or personal property.'
"Community mediation" -- which is what St. Stephen's does in terms of their conflict resolution service -- "commonly results in a written agreement or a memorandum outlining an understanding that the parties have reached. For example, a community mediation might result in a written understanding summarizing how two neighbours agree that they will share access to garages at the back of their properties through a common driveway.
"Other language in the section may also be open to interpretation that mediators are included in the definition of providing legal services. Community mediation takes an approach that is fundamentally different from the law. It's carried out in specifically non-legal circumstances, and community mediators take great care with clients to distinguish our services from legal services. The object of community mediation is not the resolution of a specific conflict, but rather the mending of the relationship between the parties in the conflict, thereby allowing them to resolve the conflict themselves. A community mediator does not introduce any opinion or judgments of the merits, facts or effects of a situation being resolved, as judges do, or any advice to the parties involved, as paralegals and lawyers may, except in regard to the process that we facilitate. In other words, community mediators are purely facilitators of process, not evaluators in any respect, except of the good faith and capacity of the parties. Community mediators act for all parties to a situation and never for only one party, as paralegals and lawyers do."
Their suggestion was the following: "All of this speaks to the need to change the Access to Justice Act to ensure that mediators are not covered by its provisions. For these reasons, we are asking that mediators be exempt from the act.
"If this necessitates your defining what a paralegal is, we acknowledge that it may also be necessary to define what a mediator is. The distinctions we outlined above might prove useful, and the existing organization of the field of mediation might be a good starting point for any delineation."
I thought this was an interesting concern that they raised. They weren't the only ones who raised the concern with respect to this definition. This concern was also raised by the Ontario Real Estate Association, the Canadian Bankers Association, the Insurance Bureau of Canada, the Canadian Institute of Actuaries, the Federation of Rental Housing Providers of Ontario and others. Did the government deal with the very legitimate concerns that were raised with respect to this particular provision; that is, the definition of legal services? Well, no, it did not, despite the excellent presentation from St. Stephen's and despite the presentation made by the Canadian Institute of Mortgage Brokers and Lenders on behalf of some of the other organizations that I have already outlined. Now you have a situation where any number of people who normally wouldn't and shouldn't be captured by this particular piece of legislation now will because of the refusal of the government to simply do what had been requested, which was to change the definition to make it clear that mediation services weren't included and that the services of all these other professional organizations were also not included in the bill. Regrettably, the government didn't want to do that.
I've heard from a number of seniors and seniors' groups with respect to another concern, and that is the change in the limitation period that is included in the bill. I think a number of members would have received a copy of a letter that was written by the United Senior Citizens of Ontario. It was an open letter to all MPPs dated October 4, 2006, subject "Bill 14, Access to Justice.
"I am asking on behalf of our 300,000 members of the United Senior Citizens of Ontario to please reinstate the six-year limitation period that has been reduced to two years. Two years is not enough time for seniors to admit or come to terms with this life-altering situation and will deny victims the opportunity to seek justice through the civil courts. Please protect our seniors from this type of elder abuse.
"Thank you, on behalf of our 700 clubs." I would like to say to the United Senior Citizens of Ontario, it would have been lovely if the government actually had made the change that they proposed, but again the government didn't. This, despite the number of organizations who came forward and made it very, very clear that the reduction of the limitation period from six years to two would deny many victims the chance to seek justice through the civil courts.
Here is another letter that I think a number of us have received. It says, "To all MPPs," so I'm sure we did, for those of you who read it. This also focuses on this particular concern:
"The reduction of the limitation period from six years to two years will deny many victims the chance to seek justice through the civil courts. Canada's Association for the Fifty Plus, the Small Investor Protection Association and the United Senior Citizens of Ontario made representation to the standing committee on justice policy on September 12. We spoke on behalf of members representing close to half a million seniors in Ontario. We are concerned that the legislation reducing limitation periods erodes the rights of Ontarians to seek justice after they have been victimized. We concur that it must have been an oversight when the bill was dealt with and that the impact on seniors was not considered. Now this must be put right."
Well, I wish that that was the case, but regrettably, it is not. "Consider" -- this is part of the submission -- "(1) Canadians are losing billions of dollars of their savings each year due to investment industry wrongdoing.
"(2) The regulators will not get their money back.
"(3) The complaints-handling process is industry itself, or industry-sponsored.
"(4) Any recovery of losses using industry processes is pennies on the dollar.
"(5) Civil litigation is the only chance that victims have to receive justice.
"(6) The time limit for taking civil action has been reduced from six years to two years in the bill. Two years is not enough time for victims of life-altering events such as losing their life savings to be able to deal with this issue and take action within that time period."
I think a number of us also got a letter from an individual who had been affected in this very way, a woman by the name of Jill King of Newmarket, Ontario, who wrote to members and said,
"To whom it may concern:
"As a member of SIPA, Small Investor Protection Association, I support keeping the six-year period. When I became a widow in 2000, my financial adviser did not heed my request and manipulated me into a huge loan debt. There is a period of grief that nullifies the body and prevents active engagement. Indeed, my financial adviser said I was too emotional and to go away and think. So a shortened time period would advantage that financial adviser even more. The body of unregulated financial advisers already has it their own way, and we as Joe Public are suffering. Now, with a two-year window, the financial adviser can get off the hook faster and get away with wrongdoing."
She says a number of other things in the letter, which I won't read into the record, but the point is, concerns were raised in this regard. Very serious concerns were raised with respect to the change in the limitation period from six years down to two. Concerns were raised by seniors' groups that represent significant numbers of seniors in the province, some of the people who are most likely to be victimized by financial advisers or others, some of the group who are most likely to be very vulnerable and not in a good position to make important decisions in just a two-year period following the disaster that has struck them. Did the government listen to what they had to say? No. Was it an oversight in the legislation? Obviously not, because if it had been, the government would have amended that during the course of the clause-by-clause, and the government did not. So now we have a limitation period that is outrageous and that will, frankly, guarantee that people who are already victims are going to be victimized again because they will not have sufficient time to try and get justice through the court system.
The final concern I want to raise has to do with the fact that many paralegals provide support to individuals who otherwise could not afford legal representation. This bill, frankly, is going to have a tremendous impact on the ability of the poor to actually seek justice through the courts.
What I want to read into the record now is a submission from Judi Simms, who is president of the Paralegal Society of Canada. She focuses on a number of things during the submission, but it's the issue of concern with respect to access of justice for low-income people that I want to address.
"The problem with Bill 14 is that it does not serve the public well -- and it does not ensure affordable and comprehensive access to justice.
"Paralegals are essential to affordable access to justice in Ontario. Some of us are fully employed in meeting the needs of low-income people in areas such as family law, landlord and tenant tribunals, workmen's compensation claims and Small Claims Court, as well as other tribunals.... in the interests of time, I will address the situation in Ontario as it relates to family law.
"One respected Family Court judge has noted that in 80% of family law cases, litigants appear without legal representation. A PSO-commissioned study, of which you have already heard," which was raised earlier during the proceedings in the committee, "has shown that 46% of those in Family Court -- nearly one in two persons -- have no legal representation. Many of these are women and children, low-income families and new Canadians. Even though paralegals have been instrumental in assisting women and children in many family law cases, Bill 14 appears designed to further impede the ability of paralegals to practise and provide much-needed services in this sector of the law that touches so many Ontarians.
"Despite the epidemic of non-representation in our family courts, there has been a move by family courts to exclude paralegals from practising in family law. This makes very little sense. If paralegals remain barred from practising in the area of their expertise, a large segment of the public, many of whom are women and children of low-income families and ethnic Canadians, will continue to be deprived of any form of representation in the family courts.
"There are many paralegals within our organization who have dealt exclusively in family law, with 10 to 15 years or more of training" and expertise. "Properly trained paralegals answerable to their own regulatory body should not be barred from practising in the family courts. Training requirements should be determined by the regulating body and not arbitrarily by the courts, as has been the case in recent practice.
"Most paralegal firms are small businesses comprised of one or two practitioners. Because the practice is small, the practitioners are more accessible to the public and the public at large feels more comfortable dealing with a paralegal. In many cases, paralegals working within an ethnic community speak the language of the people in that community. As such, they provide a comfortable environment and affordable services to community members seeking assistance in legal matters.
"Paralegals meet a vital public need that lawyers to date have failed to address. A lawyer is unable to provide many of the services that low-income and ethnic Ontarians require at anything close to an affordable rate; without a paralegal in the picture, the access to justice for low-income and ethnic Ontarians is denied."
She was absolutely right, in terms of the comments that were raised. These similar comments, with respect to how low-income people are going to receive access to justice, were raised by a number of people who came before the committee.
In summary, I don't think anybody who came before the committee, or the majority, said they were opposed to regulation, but certainly I think Judge Cory was very clear when he said it was of fundamental importance that paralegals be regulated independent of both the Law Society of Upper Canada and the province of Ontario.
It's very clear in this bill that paralegals are going to be under the thumb of the Law Society of Upper Canada, completely contrary to Justice Cory's recommendations. That will have some very negative impacts, the most negative of which I think will be an effort, because they are in competition, to force paralegals out of the system, not only out of the justice system but out of the tribunals and other places where they make intervention now, particularly on behalf of low-income people. The losers are going to be low-income people in the province of Ontario. Thank you.
The Acting Speaker: Questions and comments?
Mr. Zimmer: I wanted to speak to the member for Leeds-Grenville on his lament for the old days of a lay bench.
Mr. Zimmer: He told us that his uncle was one of the last lay judges down in his area near Brockville, and I rather think that --
The Acting Speaker: I'm sorry, but this is questions and comments on the member for Nickel Belt, not previous speakers. That's what questions and comments are about.
Mr. Zimmer: It relates to JPs.
The Acting Speaker: Okay. Please get to it, then.
Mr. Zimmer: I think if his uncle were here, his uncle would be pleased with Bill 14, as it relates to lay justices of the peace, because what we've done is preserved the lay bench.
There was a lot of suggestion that with the numbers of lawyers coming out of the law schools and the availability of the lawyers, it would be a very easy thing to move to an all-lawyer justice of the peace bench. This government did not go in that direction because we believe that access to a justice of the peace is for many people their first, and indeed their only, contact with the justice system in their lives. It tends to be a local contact in their community, in their municipality, hence the importance of having people from that local municipality, some of whom are lawyers and some of whom are laypersons. So we've preserved the lay justice of the peace bench.
To ensure that those lay justices receive the very best training, we've also got some qualification standards in -- minimum qualifications, some equivalency standards -- so that they have all the skills they need to carry out their job as a justice of the peace in a way that would be just as good as any lawyer who's also serving as a justice of the peace.
Mr. Ernie Hardeman (Oxford): I want to thank the member from Nickel Belt for a very good presentation on the contents of Bill 14, particularly the portion of it that deals with the governance model for paralegals, and for bringing forward a number of comments from people who will be negatively impacted by such a change. I too have received in my office in Woodstock, in the great county of Oxford, many, many people coming forward with concerns about how we would change the paralegal system in the province and have them governed, managed or looked after by the Law Society of Upper Canada. To most people, it just doesn't make sense. Obviously, we all know that all in the paralegal system now want to have regulations and want to be regulated, but they want it to be done in a way that they can continue the service they provide for the people of this province.
As they're not properly regulated, it's hard to imagine a constituent going to a lawyer's office to discuss the problem that they wanted addressed and that they would like the lawyer to look after, and the lawyer saying, "But you can't afford this. Why don't you go to a paralegal? They can provide that type of service for you and do it every bit as well as I'm doing it, and they will do that for a cost that you can afford." I just can't imagine that would happen in today's system, that a law firm would do that. Yet that's what the province is putting forward in this legislation: that the Law Society of Upper Canada will make those determinations as to which services should be provided, how the services should be provided, and in fact whether paralegals would be providing them or not. I don't believe we will see the Law Society of Upper Canada putting forward a broad range of issues that a paralegal can deal with, strictly because they are not the types of services that the law society will provide at a cost that most low-income people can afford to pay.
Mr. Bisson: Again, it just amazes me that we go through this every now and then in the Legislature, where we introduce legislation that most people can agree with the concept on the surface. Members of the government, members in opposition and, I would argue, paralegals themselves would agree that we need to have some mechanism to regulate paralegals. Nobody's offside. But the government, in bringing forward this legislation, has a bill that basically says that the mechanism by which they're going to go out and regulate paralegals is done in such a form that the paralegals aren't happy. I'm saying to myself, "Isn't this about trying to work with the paralegals to make sure that we develop some sort of a system that, first of all, safeguards the public" -- I think we all agree -- "and number two, is acceptable to paralegals and other people within the legal profession?" What we have in this bill is one that doesn't meet that test.
I just look at the government and I say, "God, shake your heads over there." Isn't this about trying to put together a regulatory regime that at the end of the day is going to do what it is that we want to do? For example, do we go out and regulate teachers in such a way that doesn't give teachers some confidence in their system? Do we regulate lawyers and other professions in such a way that doesn't give the people that are being regulated confidence in the system? Why would we do that? It just makes no sense to me.
I respect the law society and I respect the people who are employed as lawyers in this province. They play a very important role. But I don't believe that at the end of the day it should be lawyers who are representative of what paralegals can and can't do, because I think it's in their self-interest to determine what the scope of practice should be in such a way that it would basically very much limit the ability of paralegals to do their work. I just say to the government across the way, it seems to me that what you've done is picked sides on this one, and you've picked the side of the lawyers. You didn't really look at what's necessary for the paralegals and the public.
Mr. John Wilkinson (Perth-Middlesex): I'm entering into the debate, and I must admit that I have not been able to spend a great deal of time on this. But I was talking to my good friend the parliamentary assistant, the member from Willowdale, and I just want to talk to the member from Nickel Belt about her concerns about annuities.
As some of the members know, I am actually a certified financial planner. And one of the issues --
Hon. Jim Watson (Minister of Health Promotion): One of the best.
Mr. Wilkinson: Well, if I was one of the best, I wouldn't be here.
Hon. Mr. Watson: What about your clients?
Mr. Wilkinson: They're very happy. But I just say this to the member from Nickel Belt about your concern about the fact that there seems to be an exclusion of having an indexed annuity: I believe it's worth noting that, under the federal income tax regulations, in an annuity, it is in essence like a mortgage, but the flip side of it. When I want to borrow money, I borrow it from the bank, and then I pay them back a stream of payments that are fixed; at the beginning, most of it is interest, as we know, and a little bit is principal, and at the end, most of it is principal, and a little bit is interest. An annuity is very similar to that in the sense that there's a lump sum, and usually the life insurance company agrees to pay me for a certain period of time over the rest of my life -- and this is important for people who are victims of accidents: that a lump sum is turned into a guaranteed source of income.
If the payment itself is indexed, it means that the person must report the interest as earned on the accrual basis. But there's something known as a prescribed annuity contract under the Income Tax Act that allows a person to elect a level reporting of the tax. As a result, the person gets a fixed payment and has a fixed amount that is interest. We know what the person's tax rate is, and then they're guaranteed what that income would be. So I think the act wisely allows for the use of either of those two options so that the victim of the accident, who is receiving a lump sum, if they purchased an annuity, has the ability to take full advantage of the federal Income Tax Act.
The Acting Speaker: The member from Nickel Belt has two minutes.
Ms. Martel: I want to read into the record, in the two minutes that I have, a letter that I think all of us got today from Eileen Barnes, who is president of the Paralegal Society of Ontario. I was given to understand she might be joining us here tonight. I hope she is. I think this summarizes very completely the dilemma we are now facing and what the government has done. She says the following:
"After 18 years of providing low-cost affordable legal assistance to low-income Ontarians, I will have to close my doors because your vote" -- this is to Tim Peterson -- "is going to hand me over to the Law Society of Upper Canada and they have already told me that they will not allow me to continue to offer uncontested divorces to the public.
"Let me tell you what I do. I help people who have little money, low-paying jobs but not eligible for legal aid, no transportation, sometimes no literacy. I prepare their simple divorce paperwork getting the information over the telephone. I then go to their homes so they don't have to take buses or find babysitters for their children and I explain the paperwork to them. I make sure they understand that I am not a lawyer and that they are acting in person. Most are referrals and clearly understand that I am not a lawyer. I do the court filing for them and follow through to make sure that the divorce completes for them....
"Your government is about to deny the people of Ontario my services and the services of many people like me and force them to stay married, muddle through paperwork and clog up the court system or pay a lawyer four or five times as much for the same services, probably even my services since I will have to work for lawyers now ... as I" won't be able to "work for the public."
She goes on to make a number of other important points that I hope members will take time to read.
But I just want to close by saying this: There were a lot of concerns that were raised. For me, the most fundamental is this: This bill will really deny access to justice for low-income Ontarians, and I think that is an absolute shame, especially when so many people came and said the government should not do that.
The Acting Speaker: Further debate?
Mr. Norman W. Sterling (Lanark-Carleton): I come to this debate with a little bit of experience with regard to regulated professions. As I am a professional engineer and a member of Professional Engineers Ontario, I am quite aware of their regulatory function and their regulatory body. I am also a member of the Law Society of Upper Canada, and I'm aware of their regulatory role, their disciplinary procedures, their insurance fund and what the real function of the Law Society of Upper Canada is and what the real function of Professional Engineers Ontario is.
Not many people have talked about why we have regulated professions at all in the province of Ontario. I believe we have 24 regulated health care professions. We have the architects. We have the engineers, as I mentioned. We have the law society. We have a number of other regulated professions. The duty of the regulator and the regulated professional bodies, like the College of Physicians and Surgeons of Ontario, is not to their members; their primary duty is to the consumers of Ontario. They are there to protect the consumers of Ontario.
When I talk to many members of the teaching profession, when I talk to some teachers in my riding, a lot of them do not understand that the Ontario College of Teachers is not there to protect teachers; it's there to protect students and parents across Ontario. That's their primary function.
When we look at the paralegal profession, I think it's important to talk a little bit about how the profession has evolved over the last 25 or 30 years.
When I practised law back in the 1970s, before I ran for politics in 1977 -- and I have been here since that time -- there were virtually no paralegals offering independent service, independent advice, independent representation. There were a few people who had gone through legal assistant courses in our community colleges across the province. As time evolved, community colleges started to develop course outlines and different courses with regard to providing various kinds of legal services.
I believe that a disconnect has occurred between the community colleges and the various different governments of Ontario as we have gone over that last 30-year period. I believe that the governments of Ontario sort of turned a blind eye to what our community colleges were in fact doing. What the community colleges were doing was they were developing these programs for young people to go through in their particular institutions, but when the graduates came out, they really weren't able to do what perhaps they thought they were going to be able to do when they entered that institution. Many of them believed that they were going to be able to provide independent legal advice on certain different matters.
As we've gone through these last 25 or 30 years, a number of people have presented themselves in the courts as paralegals. In fact, there is no legal standing for a paralegal. You, Mr. Speaker, or anyone in this Legislative Assembly could appear in front of a tribunal or a court and say, "I'm a paralegal"; there's no legal definition or anybody saying you or I can't call ourselves that. We have that same anomaly, quite frankly, within the accountancy profession. I could hang out a sign and say, "I'm an accountant"; I could do that because there's no legislation which says that I can't do that.
I've heard some of the comments with regard to some of the people who are paralegals at this time or who are calling themselves paralegals, and they're objecting to the legislation on the basis -- for instance, we heard about the uncontested divorce situation with regard to a paralegal who is providing, I believe, a very valuable service to the citizens of Ontario. If that particular person wants to act as an agent for an individual, prepare divorce papers and in fact file them for the individual, I don't believe that person will be put out of business by this bill. I believe they can still do that service, as lawyers can now, and -- more and more are doing it -- can opt out of being under the guise of the Law Society of Upper Canada.
I'm still a lawyer within the Law Society of Upper Canada; I pay something like $800 because I don't practise any law, but that, for some reason, allows me to retain the ability to go back to the practice of law if I should want to in the future. But if I chose to say tomorrow, "I don't want to be a lawyer under the guise of the Law Society of Upper Canada," I could go out and practise as a consultant. There are restrictions on what I may or may not do as a consultant. There may be restrictions on people who want to help people out with legal matters but don't want to practise as paralegals. Until that definition is put down in writing and defined, people who are now practising as paralegals may or may not want to call themselves paralegals and become part of the regulated structure as a paralegal.
I served as the Attorney General of this province for a very short period of time in 2003: February 2003 till October 2003. During that time, I appointed, as the Attorney General, the first paralegal as a lay bencher at the Law Society of Upper Canada. I did that because I thought it was important for there to be greater synergy and for people in the law society to know what probably would be coming down the tube.
I asked many people in the paralegal profession at the time, I asked some of the people in their associations, I asked the Attorney General's office, "Would it be possible for the paralegals to form their own association?" Because of this disparate history that I went through, the fact that the government never really grappled with the paralegal profession, they have never, over the last 25 years, sat down and thought, "How can we present to the public more economic legal services?" It was really left in abeyance, and nothing really happened until this debate arose with regard to the regulation of paralegals.
When you set up a regulatory body like the Law Society of Upper Canada providing those kinds of services, basically the Law Society of Upper Canada says to the public of Ontario, "If you hire a lawyer, then we guarantee that those services will be provided to you with a certain level of skill and trust." Under this scheme that the government has put forward, they have said to the law society, "Can you provide to the public the same kind of guarantee that you give to the public with regard to lawyers' services as with regard to paralegal services?"
Part of that guarantee relates to the insurance that the law society buys and supplies if a lawyer doesn't act properly, steals or, quite frankly, is just incompetent. So the insurance company for the law society writes out cheques each year to many people across Ontario when a lawyer has either been negligent or dishonest in what he or she has done. The law society, of all of our regulated bodies -- all 24 health care professions, engineers, architects -- probably disciplines more of their members than any other profession. It may be that because they are dealing with large sums of money on behalf of people, the errors become more glaring and they're called on the carpet more often. But if you were looking at all of the regulated professions, you would probably say the discipline committee of the Law Society of Upper Canada does the best job of any in disbarring incompetent lawyers from practising in Ontario.
In my short sojourn as the Attorney General for the province of Ontario in 2003, I asked the paralegal profession, "How are you going to do this? How are you going to provide insurance? How are you going to provide the set-up to get this thing going?" The answer was, "Really, we don't have the sophistication or the organization to be able to do this." I must say that at that point in time, I started discussions with the Law Society of Upper Canada, saying, "You have the best experience in dealing with this kind of profession of anybody that we know of." They've done this since, I believe, 1888 with regard to disciplining their members and making certain they protect the consumer. So I said to them, "Would you consider, on an interim basis, helping out with the regulation of the paralegals?" I was the first Attorney General to ask them -- I heard comments before here about Mr. Bryant asking the law society to do this -- and quite frankly, it was a mixed review. There was a mixed review by some of the lawyers when I appointed the first paralegal as a lay bencher to the law society. But I don't see any other way we could do this, other than if the government itself became the regulator, as we have in the past regulated certain kinds of activity by people who are providing services to the consumer. I just don't see that, in the case of this particular profession, there is anybody or any body which could show greater competence in providing this oversight at this time.
I think it's really important to point out that in the legislation, as I understand it, there is a five-year review of this particular role. My view is that it would probably offer greater solace to the paralegal profession if we put a sunset clause into the legislation and said, "In five years, law society, you're finished unless the Legislature comes back and re-legislates a longer period than five years." I believe that that would answer both ends of this particular debate, because four or five years from now, the next government would have to sit and say to the law society and the paralegals, "Okay, paralegals, have you now developed to the stage where you can set up your own insurance fund, where you can have a good disciplinary process, where you can guarantee to the consumer that the paralegals who are practising under the name of being a paralegal in the province of Ontario are in fact competent to do what they do?"
So, save and except for the kind of amendment that I would like to be added, I believe that the paralegal profession will develop and flourish once regulated, because young people and people who are already in the profession will start to realize that it is something they can be proud of, that they can grow, that they can have education programs and that they can continue on into the future.
If we had a five-year sunset clause on this particular section, or on the governance by the law society, two things would happen three or four years out. One would be that the paralegals would say, "You know, things are working out rather nicely now. We can put up with the law society. We've negotiated with them okay." Or, number two, they would say, "No, we want a divorce." Or the law society would say, "We don't want to do this anymore. It's too expensive" -- because I believe that there's probably going to be some cross-subsidization with regard to the law society doing this function -- "therefore, we can go forward into the future without them."
I believe that, at this time, the government is correct in what it's doing, because I thought, when I was the Attorney General, this was the way to start, not the way forever. I really expect and would hope that the paralegals would break away from the Law Society of Upper Canada sometime in the future. I think it would be a sign of good faith on the part of the government to the paralegals, and also would put the law society on notice that they had to be fair with the paralegal profession, if you had a sunset clause rather than a review clause in the legislation. I don't know whether that should be five years, six years, four years or whatever, but I think it's five years in the legislation now, and it's probably not an unreasonable time frame. So I don't have a great deal of objection with what is there at the present time, but I do object to that particular stipulation.
The appointment of the JPs: I would say to all the legislators present that I really believe that JPs should not be lawyers. I believe that JPs should be people. That's the way it is in Alberta: JPs are all lawyers and there's great consternation between the JPs and the bench, because the JPs all believe that they should be judges. So there's this continual fight back and forth in terms of what their function is. JPs, in my view, provide a more focused and narrow function in law than judges do. They have very important tasks and are very important to our justice system. Therefore, the regulations which will come down with regard to who can qualify for a justice of the peace, in my view, should not be too narrow. I, quite frankly, don't care what the political affiliation of any JP would be. The only qualification that I think a JP should have is that he or she is known in her community as a person of good judgment, of good character, and I have no problem with the political process being part of the appointment process of the JPs. Quite frankly, it has worked well in the past. I'm very proud of the appointments we made while we were in government. I trust that the Attorney General would not make any foolish appointments to the JP bench. But let's get on with it. We really do need some more JPs in order to make our courts work properly.
The Acting Speaker: Questions and comments?
Ms. Martel: I don't think it's going to come as a surprise to the member from Lanark-Carleton that I disagree with his view with respect to who the regulator should be. I think that I want to go back and put into the record again what Justice Cory had to say about this, because this was in 2000. It's not that long ago where he, I would suspect, took a very serious look at this matter, did some important work on behalf of the province, at that time the Conservative government, and said the following:
"I would emphasize that it is of fundamental importance that paralegals be independent of both the Law Society of Upper Canada and the province of Ontario. The degree of antipathy displayed by members of legal organizations towards the work of paralegals is such that the law society should not be in a position to direct the affairs of the paralegals." I think that's a pretty strong recommendation from a man whom I have lots of respect for, who, I suggest, did a lot of very important work in this regard.
What's interesting is that during the course of the debate in the committee process, Mr. Kormos, Mrs. Elliott and Mr. Runciman asked the committee to defer its clause-by-clause consideration so that Judge Cory could be invited to come before the committee and speak to this specific matter. Regrettably, the Liberal members, the Liberal majority on the committee, wanted nothing to do with that suggestion, wanted nothing to do with having Justice Cory before the committee to talk about the recommendation he had made in 2000, to talk about whether or not that recommendation had changed, and to explain very clearly to the committee members why he had said what he did. If he had been able to come before the committee, maybe the government would have changed its mind. The fact is, there isn't a sunset clause in this legislation, and we shouldn't have the law society regulating paralegals.
Mr. Zimmer: I want to thank members of the House and former attorneys general across the way, and former Attorney General Boyd, who recognized the need for paralegal regulation because it was the right thing to do in the public interest. In fact, the member opposite from Lanark-Carleton, who spoke just a couple of minutes ago, back on March 3, 2003, gave an interview in the Law Times in which he essentially set out the position that he has set out today, recognizing that the law society was probably, at the time, the best authority in place to regulate the paralegals.
I wanted to assure the members opposite that in fact there is a two-year review and a five-year review of the paralegal regulation. An interim report is going to be required two years after royal assent, which will assess the details of paralegal regulation to see if the law society's reports and recommendations of 2004 are followed, and then a final report would be required five years after the system is up and running. There would be one report from the law society and another report from a non-legal appointee of the Attorney General. The reports will be charged with the responsibility of reviewing the way in which paralegal regulation has worked and its effect on the public in terms of the protection of the public. Then, of course, depending on that review, things may or may not happen.
Mrs. Elliott: I'd just like to make a few final comments with respect to part C of Bill 14, with respect to paralegal regulation. I think it's probably apparent from all of the comments that have been heard from the speakers on this topic that there's no issue that there is a need for paralegals to be regulated, as the conduct and actions of lawyers are regulated, for the protection of the public.
The issue really is, who should be the regulator? There are three basic options: regulation by the law society, as the Attorney General has simply decided upon with respect to Bill 14; complete self-regulation; and regulation by government agency with a view to self-regulation within a period of time to be determined.
Unfortunately, we were not able to hear at the committee with respect to the second two options because it was just taken as a given that this was the way in which to proceed, which I think is unfortunate given the very specific comments that we heard from paralegals on this subject and also, as the member from Nickel Belt has indicated, the very able work done by Mr. Justice Cory in his report in the year 2000 on this very subject, where he consulted extensively with stakeholders, members of the public, paralegals and lawyers, and certainly came to the conclusion that because of the antipathy between certain members of the bar and the paralegals, this was a situation that should not happen; there should not be regulation of paralegals by the law society. In my view, this is setting up a disaster waiting to happen, because there's going to be considerable pressure on the law society to regulate and restrict the types of activities that are going to be carried on by paralegals, to the detriment of the Ontario public, particularly as it comes to legal services that are essential, such as family law situations, where there's an urgent need for low-cost, high-level representation where there would otherwise be no representation at all. In my view, that's necessary in order to have access to justice for all Ontarians.
Mr. Bisson: Well, stay tuned. I'm going to get a chance to speak a bit little more in-depth on this bill in the next rotation. That should happen in the next few minutes, but I just want to say a couple of things to my colleague the Conservative member from Lanark -- Renfrew? Did I get that right?
Mr. Sterling: Carleton.
Mr. Bisson: Lanark-Carleton. I never get ridings right. I've been here all these years, and I have a hard time getting the ridings. That's why I will never run for the position of Chair. Somebody will pull that out of the Hansard one day and say, "You said you didn't want to be Speaker a long time ago."
Anyway, I've just got to say a couple of things. I want to come back to the comment I made earlier, because at the end of the day you have to look at who this bill is going to impact and who it's there to protect. I think we all agree, and I'm going to get a chance to speak to this in more detail, that this is about making sure we have a mechanism -- one of the things the bill includes is a regulatory mechanism -- to regulate paralegals. Who disagrees? Nobody. There's nobody in this House -- and I think most of the public and paralegals -- who doesn't believe that we should be doing something to regulate that profession.
There are many professions in Ontario who wish to have the opportunity to move towards a regulatory body of some type and become a self-regulated profession. However, this bill doesn't quite do that, in my view, because what we're saying is that we're effectively going to give control to the lawyers about how the regulatory body is going to work. It seems to me it's inherently a situation of conflict, because the lawyers have something to gain or lose based on the amount of work that paralegals do or don't do. So why would you give the control to the lawyers?
This is not anything against my good friends in the law society and people who practise law. I understand that they have a job to do and, quite frankly, a very important one. But the issue is, why put the chickens in charge of the henhouse? That's what I want to be able to speak to in a little bit more detail later. I think that's the point my good friend was making: At the end of the day, we need to have a regulatory body that is there basically to protect the consumer and to make sure that the professionals themselves are represented.
Mr. Sterling: I thank all members who participated with their comments. I would just make the point that lawyers do not want to do the same kind of work that paralegals do. The idea that they will be competing with each other is false. Lawyers do not want to do the work that paralegals are doing.
I want to explain. Perhaps when I say "sunset clause," people don't understand what a sunset clause is. We've had sunset clauses in previous legislation. The sunset clause says that in five years it ends, it's finished, that the law society no longer has control over the paralegal profession and that the government of the day, leading into that sunset day -- October 16, 2011, or whatever the date would be -- will have an obligation to deal with the problem. They will either have to continue on with the law society, or they will have to find a new mechanism.
A review doesn't cut the mustard, because a review is basically something that, you know, somebody receives; they act or they don't act. The beauty of a sunset clause is that the government of the day will have to act. They will have to have this debate again with the paralegal profession. They will have to have the debate with the lawyers. I believe at that point in time the paralegal profession will probably be in a position -- they will be sophisticated enough, they will be developed enough, their associations will be developed that are outside of the regulatory body -- where they will then be able to come forward and say, "Yeah, we can do this on our own. We can do this away and apart from the lawyers, and it's to our advantage to do that." Or, surprisingly, they might say, "It's working pretty good as it is." I don't know which way it would go, but all I'm saying is that a sunset clause is far preferable than any number of reports, be it two or 10.
The Acting Speaker: Further debate?
Mr. Bisson: I look forward to having a discussion about this in some detail, not only in this part of debate but with you a little bit later, Speaker, because I feel passionately about this bill because of four things.
I want to mention, first of all, the flawed process in which we're engaged in this Legislature today. Here we've got a bill that is before this House, and I would argue that most of us haven't read the 200-some-odd pages of this bill in detail. Part of the problem is, as I always feel, that when we come forward with fairly important legislation such as we have now with this particular bill, Bill 14, the government is always in a hurry to pass this stuff through the House, have a quick second reading, throw it into committee for a couple of days and, heck, we'll bring it in for third reading and we'll pass it -- done. But meantime, inside the bill, there's a whole bunch of stuff that quite frankly is very technical and that we need to make sure we get right. I want to speak to three or four of those particular issues.
There is the issue of the paralegals, which I'm going to speak to; the issue of the justices of the peace, which I think we need to have a bit of discussion about; the amendments around the Provincial Offences Act; and also the Limitations Act. We need to take this in context. This bill is not just about paralegals; it's about a whole bunch of other things. I want to say that I have not read the bill in detail, but like most members I've had a chance to read the explanatory notes at the beginning of the bill, and I've gone in and referred to those sections that have caught my attention.
I want to start in no particular order. It's the important part of this bill, but I'm going to end with the paralegals, because I want to talk about a couple of things: first of all, JPs. I had an opportunity a little while ago -- my good friend the Solicitor General and I were talking a little bit earlier and explaining to somebody about the issues of JPs. When I first came to this place, we used to appoint part-time justices of the peace. I think that was a good thing, especially in small-town Ontario. We had an opportunity in communities like Moosonee, Matheson, Fauquier, Hearst, or wherever it might be, to have on the ground somebody that the police could go to if they needed a warrant sworn, somebody you were able to go to if you had to get something dealt with as far as a hearing about whatever, or have a document signed for the courts, in your local community.
I think that was a good service. What used to happen is that people used to come and knock at the MPP's door or the Solicitor General's door, or they went and knocked at the Attorney General's door and said, "I would like to get appointed as a part-time JP." We would appoint these people, and they would be paid on the basis of the amount of work they did. If they worked a day that week or half a day the following week, that's what they got paid for. That worked well in small-town Ontario, because it always meant that when the Ontario Provincial Police or the local police of the city of Timmins or Nishnawbe-Aski police -- whoever it was -- needed to get something done, there was a JP there on the spot. They could knock at the door at 4 o'clock in the morning and say, "Mr. McLeod, open the door. We need you to sign something." A JP would walk out and sign the document, and off the police went to do their work.
We've now professionalized the JPs, and I understand the need to do that. I don't argue for one second -- don't get me wrong -- that we shouldn't have full-time JPs within the system who are properly trained, well-versed in laws, who understand how to conduct a hearing and how to deal with the whole issue of the process of the courts. I don't argue that for a second. But what we've done, as the old saying goes, is we've thrown the baby out with the bathwater. So now, if you want a JP in Moosonee, nobody answers the door. Why? Because you've got a full-time JP somewhere in Timmins. What is that going to do to the community of Moosonee or Moose Factory when they need a JP to deal with whatever? It causes a problem for police officers to be able to do their jobs.
I'll tell you, the police officers are professionals. My good friend Mr. Kwinter would know that the police don't want to go out and arrest somebody or go in and do a search in a way that is not going to stand up before the scrutiny of the court, so they don't do it in some cases because they can't get a hold of the JP to sign the document. I'm just saying, I've always had a problem from the beginning, and I don't blame this government for this problem. This was a problem that started under the Harris government, and you guys are now facilitating it in this bill, going down the same road as Mike went, which is that in small-town Ontario, if you go knocking at the door at 4 o'clock in the morning --
Hon. Mr. Watson: Who's there?
Mr. Bisson: -- nobody's going to answer. No one's there, my good friend, because there are no part-time JPs.
You've got to have part-time JPs in the system. Can you imagine the Nishnawbe-Aski police trying to get a warrant signed in places like Attawapiskat or Moosonee or Big Trout Lake, or even getting something done in Opasatika on Highway 11 or wherever it might be? It's fairly difficult. It made sense to have part-time JPs in the system to deal with those circumstances.
The government says, "Well, that's okay; we can fix that," because in this bill there's another section that says that with certain offences under the Provincial Offences Act, I think it is, we will be able to bring police officers in. This is not a JP issue; I'm switching gears now. I end on this point on the JPs -- not to confuse my good friend across the way. I think we should have part-time JPs, and I bemoan the fact that we got rid of part-time JPs and got full-time JPs.
Hon. Mr. Watson: Do you want to be one, Gilles?
Mr. Bisson: No. The Liberals are teasing me. They're saying, "Would you like a JP's appointment?" The answer is no. I'm having far too much fun over here celebrating, in this Legislature, the ability to debate all issues and to represent the people of Timmins-James Bay.
I want to go to the Provincial Offences Act, to switch gears. In this particular act we've done a couple of things. One of the things we're saying in this act -- let's show the bill -- is that under certain provincial offences, when it comes to bylaw charges by the municipality and others, the police will be able to appear before the court by electronic means. Somehow that's heralded as a way of being able to speed up the administration of justice.
Now all the heavy-hitter cabinet ministers are coming in. Now I know they're afraid of what I've got to say. All the heavy hitters are coming in. OK, we've got an audience.
Anyway, I understand the temptation on the part of the government to say, "I want to be able to call Constable Paul to testify against so-and-so for a parking ticket violation." I understand what the government's trying to do. But you know as well as I do that, in the cut and thrust of defending oneself or having a lawyer defend you or, in this case, a paralegal defend you -- in some cases they do that as well -- you need to have the accuser in court to be cross-examined by the defence. I just don't like the idea. If you have a situation where the person is somewhere behind a camera or a telephone where you can't see them, God knows how they're being manipulated by the professionals in telling them what to say, or there's a delay in being able to use the reactions of the courtroom to get to your point.
I'd say this: In this system, everybody has the right, once charged, to defend themselves before a court. It seems to me that one of the fundamental things is to have the accuser in the court with you. If I get charged with a provincial offence of some type, I have the right to have the game warden or the police officer or whoever it is who charged me in the courtroom in person to answer questions of my defence, either myself, if I'm defending myself, or my lawyer or my paralegal. I don't like the idea of having this person appear through a telephone or through a teleconference. I think that is fraught with problems, for two reasons. First, it could be manipulated, and I believe it will be manipulated. You could end up with a battery of lawyers or an adviser of some type telling the conservation officer or the police officer what they can and can't say with big signs that you can't see from the courtroom -- "Don't answer that question. Stay away from that answer. Don't go here or there" -- and not have the ability to have my defence question in person the person who's accusing me. There's something about being able to look you in the eye.
When I look you in the eye and when I look at the clerk -- who understands this far more than most of us because she's had to listen to too many of my speeches -- she sits there and says, "It's not the same; Bisson unplugged on television and Bisson in person are two different things." See? She agrees with me.
So I don't like this particular section of the act that says that provincial offences can be dealt with by way of a hearing by telephone or by television for the person who did the charge to give testimony against the person who had been charged. I say that.
I've got about 10 minutes left. This is going to work out perfectly, because I want to talk about the whole issue of the limitation amendments in this act, and I will get to the paralegals because this is one of the key issues. But the point I'm trying to make to members is, this is not just about paralegals. There's a whole bunch of other stuff in this bill that people should be aware of and have some concern for, and that's why I argue that you need to have a proper process to vet these things.
Now, in the Limitations Act, currently you have a six-year statute of limitations when it comes to being able to oppose a deal that you might have been taken short on. For example, I have lots of seniors in my riding, as we all do, and I had a case about four years ago in which a number of seniors got taken to the cleaners by an investor. It's too long a story to explain, but about 50 or 60 seniors in my riding, from communities from Hearst to Cochrane, had invested money with somebody. As a result, the money was pilfered, and these particular people had been done wrong by financially. Right? They didn't figure it out for a while, because you know as well as I do, my good friend the Solicitor General, that investments go up and investments go down. You get your report at the end of the month, you see some fluctuation and say, "Oh, the market's not doing too well, so it's down a bit. I'm not going to worry about it." Or in many cases, as is too often the problem, the person doesn't read the information that they get every month, and they find out when it's too late that they've been taken to the cleaners.
Well, in this particular case, it was something like three or four years after the fact that these seniors found out they had been taken to the cleaners by this particular investment person. Under your act, they wouldn't have the ability to prosecute because the statute of limitations is being brought down to two years in this bill. I'm saying there's a reason that we have a longer statute of limitations when it comes to these issues. It's to give people the proper amount of time to notice that they've been duped. In this particular case, they had been duped, and I would argue that under this bill, if it was passed, they would not have the opportunity to make a complaint before the courts and to get remedy through the insurance that's used to secure your investments. So I just say, there's a problem with this bill. This is something that I'm somewhat troubled about and, I would argue, we should be able to deal with.
I'm going to get a chance later on, in the next day of debate, but I've got a few minutes tonight, and I want to end on the paralegals. I just want to come back to what I said at the beginning: Who's glad, who's sad and who's mad?
The people who are glad are the lawyers. They're really happy because they get to control the paralegals. So we know that the lawyers are glad. All right? Who's sad? We know a number of people are sad, because we've had different people give testimony who have said this is not a good idea, that if you're going to regulate a profession, you have to have a mechanism by which to regulate so that the people who are being regulated have some confidence in the system. And who is mad? The public and the people we're trying to regulate under this bill, who are the paralegals.
Hon. Mr. Watson: Gilles is mad.
Mr. Bisson: And you've got me, who's mad. You got that right. My good friend over there got that figured out real quick. I was coming to that.
But my point is, the "who's glad, who's mad and who's sad" test on this bill doesn't make it, and I'm just saying to the members across the way, if you can't make people who are being regulated, the ones who are being affected by this legislation, have confidence in the system, why are you doing that? I know I am going to get a chance -- is it almost that time, Speaker, or do I just keep on going?
Mr. Bisson: It's about that time. So I would just say, Mr. Speaker, because I see you rising to your feet, saying, "Being almost 9:30 of the clock, this debate is adjourned" -- I think that's what you're about to say -- I'll come back next time.
The Acting Speaker: I think that's all the incentive I need. It being now nearly 9:30 of the clock, this House stands adjourned until tomorrow at 1:30.
The House adjourned at 2130.