Technical Standards and
Safety Act, 1999, Bill 42, Mr. Runciman /
Loi de 1999 sur les normes techniques et la
sécurité, projet de loi 42, M.
Runciman
Canadian Institute for
Environmental Law and Policy
Mr Mark Winfield
Operating Engineers
Advisory Council
Mr Norm Stinson
STANDING COMMITTEE ON
THE LEGISLATIVE ASSEMBLY
Chair /
Président
Mr R. Gary Stewart (Peterborough PC)
Vice-Chair / Vice-Président
Mr Brad Clark (Stoney Creek PC)
Ms Marilyn Churley (Broadview-Greenwood ND)
Mr Brad Clark (Stoney Creek PC)
Ms Caroline Di Cocco (Sarnia-Lambton L)
Mr Jean-Marc Lalonde (Glengarry-Prescott-Russell L)
Mr Jerry J. Ouellette (Oshawa PC)
Mr R. Gary Stewart (Peterborough PC)
Mr Joseph N. Tascona (Barrie-Simcoe-Bradford PC)
Mr Wayne Wettlaufer (Kitchener Centre / -Centre PC)
Substitutions / Membres remplaçants
Ms Marilyn Mushinski (Scarborough Centre / -Centre PC)
Mr John O'Toole (Durham PC)
Also taking part / Autres participants et
participantes
Ms Kathy Levine, legal counsel, Ministry of Consumer and
Commercial Relations
Mr Robert Dowler, director, marketplace standards and services
branch, MCCR
Ms Karen Golden, senior policy adviser, policy and agency
relations branch, MCCR
Clerk / Greffière
Ms Donna Bryce
Staff / Personnel
Mr Lewis Yaeger, research officer, Research and Information
Services
Mr Christopher Wernham, legislative counsel, Ministry of the
Attorney General
The committee met at 1551
in committee room 1.
SUBCOMMITTEE REPORT
The Chair (Mr R. Gary
Stewart): Good afternoon, ladies and gentlemen. We'll
call the meeting to order. The first bit of business is the
report of the subcommittee. I will read it, if I may.
"Your subcommittee met on May
17, 2000, and has agreed to recommend:
"(1) That the committee
commence consideration of Bill 42, Technical Standards and Safety
Act, 1999, on Thursday, June 1, 2000.
"(2) That the Canadian
Institute for Environmental Law and Policy be invited to appear
as a witness before the committee for a half-hour time slot.
"(3) That clause-by-clause
consideration commence on June 1 following the witness
presentation. If available, amendments may be filed with the
clerk by 12 noon on Tuesday, May 30, 2000.
"(4) That the Chair, the
clerk and the subcommittee be authorized to attend the annual
meeting of the National Conference of State Legislatures in
Chicago on July 16 to 20; and that approval of the House be
sought."
Is there a mover on this?
Mr John O'Toole
(Durham): Mr Chair, I have a proposed amendment.
The Chair:
You have to move it first.
Mr O'Toole:
I move the report of the subcommittee. With your permission, I
would submit an amendment to paragraph 2.
I move that paragraph 2 of
the subcommittee report be amended by adding the Operating
Engineers Advisory Council as a witness.
The Chair:
Any debate on that? All in favour? The motion is carried. Shall
the subcommittee report, as amended, carry? Carried.
TECHNICAL STANDARDS
AND SAFETY ACT, 1999
LOI DE 1999 SUR LES NORMES
TECHNIQUES ET LA SÉCURITÉ
Consideration of Bill 42, An
Act to enhance public safety and to improve competitiveness by
ensuring compliance with modernized technical standards in
various industries / Projet de loi 42, Loi visant à
accroître la sécurité publique et à
améliorer la compétitivité en assurant
l'observation de normes techniques modernisées dans
plusieurs industries.
CANADIAN INSTITUTE FOR ENVIRONMENTAL LAW AND
POLICY
The Chair:
We will move on to the agenda. The first witness for Bill 42 is
from the Canadian Institute for Environmental Law and Policy. If
you would introduce yourself, sir, please. Welcome to the
committee.
Mr Mark
Winfield: Thank you, Mr Chairman. My name is Mark
Winfield and I'm director of research with the Canadian Institute
for Environmental Law and Policy. I'm pleased to be able to
address Bill 42 here today.
The Canadian Institute for
Environmental Law and Policy is an independent, not-for-profit
environmental law and policy research and education organization.
We were founded in 1970 as the Canadian Environmental Law and
Research Foundation. You may be wondering why an environmental
organization is here today to talk about a bill that deals with
public safety and consumer affairs issues. Really, the reasons
are that we have actually just completed a study on the Technical
Standards and Safety Authority, which is central to this
bill.
What drew us into this was
that the institute a few years ago undertook a study on the
regulation of underground storage tanks and it was published as a
book called Toxic Time Bombs. One of the things we looked at was
the fact that it was actually the Ministry of Consumer and
Commercial Relations rather than the Ministry of the Environment
that regulated these things. That's what gave us an introduction
to this.
In 1996, in the course of
doing the annual report that we do each year on changes to
environmental laws, institutions and policies in Ontario, we came
across something called the Safety and Consumer Statutes
Administration Act, which had been passed in June 1996. What this
act did, among other things, was to provide for the creation of
the Technical Standards and Safety Authority. The authority was
one of four so-called delegated administrative authorities which
were created to take over regulatory functions of the Ministry of
Consumer and Commercial Relations. The TSSA and the other
authorities are private, not-for-profit corporations to whom the
administration of the statutes administered previously by MCCR
were turned over. In the case of the TSSA, it's the statutes
related to elevating devices, amusement devices, fuel storage,
boilers and pressure vessels, so a fairly broad range of things
related to public safety.
In addition to being private,
not-for-profit corporations, the other important feature of the
delegated administrative authorities seemed to us to be the fact
that the majorities of their boards of directors were drawn from
the economic sectors of the industries they were supposed to
regulate. This seemed to us to raise a whole range of questions
around political and legal accountability and about the potential
effectiveness of these organizations.
In the following year, we
received some funding from the Law for the Future Fund of the
Canadian Bar Association and two private foundations to do a more
detailed study on the implications of the TSSA and its sister
organizations. We're tabling the results of that study today,
which I understand you've been provided copies of. It is
essentially our brief on Bill 42, because the legislation deals
with a number of issues central to our findings with respect to
the TSSA.
In the course of our study,
we identified a number of significant concerns regarding the
delegated administrative authority model, most clearly
illustrated by the TSSA. The first, and perhaps one of the most
significant, was that underlying the creation of the delegated
administrative authorities was the notion that government would
steer and the authorities would row. In other words, that
government would give policy direction but that the authorities
would actually implement government policy, so it was possible to
distinguish between policy and administration.
One of the problems we
identified with this model, though, was that when the government
passed the statute creating the authorities, it failed to
actually give them any clear policy direction. All you see in the
statute is some vague references to providing for a safe, fair
and competitive marketplace. There was no clear mandate given,
for example, in the case of the TSSA to protect public safety or
the environment or how such concerns were to be balanced in
relation to the economic interests of the regulated industries.
In our view, Bill 42 compounds this problem because it removes
what policy direction is provided in the existing legislation
administered by the authority, and I'll come back to the reasons
for that in a minute.
The second area of concern
that we identified with respect to the delegated administrative
authorities was the issue of the status and the composition of
the board of directors. Here, as we said in our original study,
there seemed to us to be a potential for the institutionalization
of conflict of interest as an organizing principle of public
policy, in the sense that you had people who were essentially the
regulatees in the position of potentially being the regulators.
In our study we highlight in particular the lack of clear
conflict-of-interest rules to deal with precisely that situation
either in the statute, in the administrative agreement between
the MCCR and the TSSA or in the TSSA's bylaws, to deal with the
particular situation where the interests of the economic sectors
from which directors come are potentially affected by what the
TSSA does.
The third major area of
concern that we identified was the issue of accountability. Here
what we found is that as a private corporation the TSSA escaped
most of the normal accountability structures that apply to
government agencies. For example, it's not subject to oversight
by the Provincial Auditor. It's not subject to oversight by the
Ombudsman and oversight under the Ombudsman Act. It was not
originally subject to oversight by the Environmental Commissioner
under the Environmental Bill of Rights. It's not subject to the
Freedom of Information and Protection of Privacy Act, so the
status of the records is different in terms of public access.
It's not subject to the lobbyist registration requirements. If
you lobby the TSSA or its sister organizations, you don't have to
register with the lobbyist registrar because it's a
non-governmental entity.
1600
The government did take steps
to bring the TSSA back under the requirements of the
Environmental Bill of Rights, but it remains outside of the
requirements of these other statutes, the Audit Act, freedom of
information, Ombudsman, all of those things. We regard this as a
fairly serious gap, particularly in light of some of the concerns
that have come up in the last few weeks around oversight and
accountability, and particularly when government functions are
transferred out of government. We also note that the formal
accountability structure that was created for the
Ontario-delegated administrative authorities is significantly
weaker than that established for similar authorities in other
jurisdictions.
In the course of doing our
study we looked at similar organizations in the United Kingdom,
New Zealand, Alberta and at the federal level. In each of these
cases we saw that explicit provision had been made for the
maintenance of parliamentary oversight, that they remained
subject to oversight, where it is appropriate, by auditors
general, ombudsmen, and, where appropriate, subject to freedom of
information and protection of privacy legislation.
In terms of Bill 42, what all
this means is a number of things. Basically what Bill 42 does is
consolidate the seven safety-related statutes administered by the
TSSA, but it also does something else which is very significant.
In our view, it strips out all of the substantive provisions of
the existing statutes and replaces them with general authority
for the Lieutenant Governor in Council to make regulations
instead. So where you look at something like the Elevating
Devices Act, you see there are a whole bunch of specific
prohibitions about requirements to get licenses, prohibitions on
operating unsafe devices, requirements for investigations if
something goes wrong. All of that is being removed and simply
replaced by authority for the Lieutenant Governor in Council to
make regulations instead.
We would object to this in
principle anyway because it, in effect, diminishes the role of
the Legislature and increases the discretion of the executive in
terms of policy-making. But in this case it's a particularly
severe problem because of the nature of the TSSA, because it
means there's even less direction given to the authority by the
Legislature in terms of in what direction to steer. In practice,
in our view, because effectively almost all of the Ministry of
Consumer and Commercial Relations technical and policy expertise
in the areas of regulation handled by the TSSA went to the TSSA,
it seems to us that the content of whatever regulations might be
made by the Lieutenant Governor in Council is inevitably going to
strongly reflect input from the authority. In effect, the
authority would be put into the position of steering as well as
rowing, and that is precisely what the Minister of Consumer and
Commercial Relations at the time, Norm Sterling, said would not
happen when the authority was created. The basic problem here is
that the authority isn't accountable to the public in any
concrete way for the policies it makes in the way the government
is. You can't unelect the directors of the TSSA in the way that
you can unelect the government if you didn't like what it
does.
There are a couple of other
specific problems we've identified in the bill. One in particular
that's been drawn to our attention are the provisions of section
36. What this does is to give extremely broad discretion to the
statutory directors. You have to understand that, because of the
way the delegation works, the TSSA's vice-presidents act as the
statutory directors for the purposes of the delegated
legislation. It effectively gives them the power to waive or to
vary the requirements that are set in the regulations. So even if
the Lieutenant Governor in Council actually gives a direction for
the regulations, there's then a power given to the authority
staff to set aside those directions and do something else.
With respect to what to do
with Bill 42 in the context of this, as we expressed in our
report, we are in the position of having to oppose the bill in
principle. We also note in this context particularly the removal
of the substantive provisions from the existing legislation,
which we cannot support. We also note that earlier drafts of the
bill did in fact retain some of the key provisions of the
safety-related legislation, but these have all been taken out in
the version that was actually introduced into the House in
December.
Specifically what we would
suggest, and this reflects the recommendations you see in the
final chapter of the report, is that steps be taken to strengthen
the accountability framework for the delegated administrative
authorities and to bring them into line with what other
jurisdictions have done. You'll see section 42 of the bill
already contains a reference to the Environmental Bill of Rights
and the Gasoline Handling Act. We would specifically suggest that
the bill be amended to bring the delegated administrative
authorities under the Freedom of Information and Protection of
Privacy Act, under the Ombudsman Act, under the jurisdiction of
the Provincial Auditor, and to bring those lobbying the TSSA
under the requirements of the Lobbyists Registration Act.
We would also like to see the
opportunity taken to clarify the mandate of the delegated
administrative authorities, particularly TSSA, to give clear
priority to protection of public safety and the environment in
the execution of its duties. We would also like to see the
possibility of some consideration being given to amendments to
strengthen the independence of the board of directors. In
particular, you'll see we've made a recommendation that the act
be amended in a way that would require that a majority of the
directors of the board be independent of the economic interests
which are regulated by the authority.
I'll close there and would be
pleased to answer any questions you might have.
The Chair:
Thank you, Mr Winfield. Questions?
Mr Jean-Marc Lalonde
(Glengarry-Prescott-Russell): Just one question. Right
at the beginning you said you were concerned about the
underground holding tanks, which comes under MNR at the present
time.
Mr Winfield:
No, it actually was under Ministry of Consumer and Commercial
Relations. The regulatory responsibility was transferred to the
Technical Standards and Safety Authority when the administration
of the Gasoline Handling Act and the Energy Act delegated to the
authority.
Mr Lalonde:
Are you referring to the fuel tanks?
Mr Winfield:
Yes. The underground storage tanks for gasoline at gas stations
would be the most obvious example.
Ms Marilyn Churley
(Broadview-Greenwood): As people will know from the
amendments I put forward-and I apologize for them being so late;
we got caught up in other issues last week-I have obviously seen
this report and have put forward some amendments to reflect some
of the concerns as outlined by you today. Perhaps you could
expand on this a little bit. I guess we're all extremely
conscious of what happened in Walkerton. I believe you alluded to
that, although you didn't say "Walkerton." I assume what you were
saying was that unless we're very careful here that there's
accountability, it could be an accident waiting to happen. I
suppose that's how I'm interpreting what you said.
Mr Winfield:
I think that would be a correct interpretation. Our concern is
that the authority's mandate very clearly deals in public safety
and in the safety of devices and activities which Ontarians deal
with and encounter in their everyday lives. We've dealt with the
authority staff quite a lot in the course of doing the study and
we're very impressed with their consciousness of these issues,
and they're concerned by them. But one also has to look to the
future and the possibility that the current staff may be replaced
by others who may not be as conscious of these matters. At that
point, oversight by the auditor and the Ombudsman and the
Environmental Commissioner becomes very important, because those
are how we get early warnings of the potential for trouble.
We do know from events in the
last few weeks that there were concerns expressed by legislative
officers about the situation, or at least the circumstances that
may be related to the situation which has arisen in Walkerton.
One would want to have those early-warning systems in place in
this case, because again you're dealing with very basic public
safety issues and at the moment those structures are lacking. I
think it's of particular concern given the newness of the model
and the need for independent oversight and also the gap between
what was established in Ontario when these kinds of entities were
created relative to what was done in other jurisdictions, which
was to very clearly establish that kind of accountability
framework from day one.
Mr O'Toole:
I'd just like to thank you very much for your presentation. You
have spent considerable time analyzing, and I appreciate that as
a public service to the people of Ontario. You draw to our
attention the importance of the letters patent, and I'm certain
you've reviewed those yourself. For the record, it's to promote
and undertake activities which enhance public safety, including
training, certification, licensing, registering, audit, quality
assurance and other things. It's a comprehensive list that
probably adds to what exists today in a framework where, I
believe, the ministry remains responsible for the public safety
statutes and regulations and oversees TSSA's performance. It has
oversight authority.
As such, you raise a very
good point. If there is a conflict of some sort, ultimately the
question does go back to the government, to the minister or to
the Premier. It's important that the public's interests that you
respect today, I also respect. Others may want to comment on this
legislation that's before us in clause-by-clause,. There are
amendments before us as well and we hope to address some of
those.
1610
Mr Winfield:
I would just very briefly make a couple of points in
response.
We've looked at the letters
patent; there are a couple of concerns there. One is the degree
to which they indicate the substantive definition of the TSSA's
mandate and direction by the TSSA itself, rather than by the
government. That's a concern because the whole underlying notion
behind this model was that the government is supposed to give
direction and then the authorities are supposed to follow it.
That's quite important from an accountability framework
perspective. As one of my co-authors of the study put it, rather
than giving direction in which to row, the government provided a
boat and said, "Pick a river." The authority filled the gap, as
it had to do, but the concern is also, though, that there is a
duality to the mandate which has emerged. We've seen in some of
the statements from the board of directors and others that they
do seem to have as much focus on competitiveness and economic
concerns to regulate sectors as they do on public safety
regulation. That concerns us, because the experience in Canada
with organizations where there's been a mixing of regulatory and
promotional roles is not a pretty one. We've had some very
serious developments that way.
We also have some concerns,
and these are all laid out in the report, about the capacity of
the government to oversee the authority. All of the expertise, in
effect the entire technical standards division of the MCCR, went
to the TSSA, so all of the policy and technical expertise moved
over with the authority. You're left, really, as I understand it,
with about five staff who are in charge of looking after TSSA,
plus the other four delegated administrative authorities, plus
the new home warranty program, plus, I think, either the
cemeteries or funeral homes-I can't remember which. There's some
concern about the oversight capacity and there is also, as I say,
again in the context of the bill, the degree to which the
government is going to be able to respond to what the authority
might suggest in terms of the regulations that might be made
under this bill to replace the substantive provisions of the
statutes.
I'll just leave it there.
That's sort of where we're coming from in terms of our
concern.
The Chair:
Any other comments on the debate? If not, Mr Winfield, thank you
very much for your presentation, sir.
Mr Winfield:
Thank you, Mr Chair.
OPERATING ENGINEERS
ADVISORY COUNCIL
The Chair:
The next delegation is from the Operating Engineers Advisory
Council; if you would identify yourself to the committee, sir.
Welcome.
Mr Norm
Stinson: My name is Norm Stinson and I'm the chairperson
of the Operating Engineers Advisory Council, which advises the
Technical Standards and Safety Authority in matters concerning,
currently, the Operating Engineers Act.
I'm also the chief operating
engineer at CAMI Automotive at Ingersoll and have been an
operating engineer for about 40 years-I'm giving away my age
here.
I am presenting today as the
chair of the Operating Engineers Advisory Council, which, as I
mentioned, supports the TSSA and, through them, the Ministry of
Consumer and Commercial Relations.
The council was the former
board of review and it was advisory to the technical standards
and safety division of the MCCR. The council consists of
stakeholders from the power plant industry who are drawn from
both labour and owner/user interests.
Since the formation of the
TSSA, the members of this council have worked closely with the
TSSA staff to review and provide input into the proposed
Technical Standards and Safety Act. In addition, we have
rewritten the accompanying power engineer regulations-or, I
should say, the draft of those. In this process, we have received
presentations from several interested stakeholders representing
industry associations, thus providing us with a broad perspective
of the issues.
It is our understanding that
the draft act has had second reading in the Legislature. We
believe that its enactment will enhance public and industrial
safety in Ontario. The operating engineers of Ontario have a
proud record of power plant safety, which the new act will help
maintain.
The Operating Engineers
Advisory Council appreciates this opportunity to address the
committee regarding the proposed Technical Standards and Safety
Act concerning two issues.
The first one is the term
"operating engineer" versus "power engineer." The term "operating
engineer," which is used in the existing act, we feel is
outdated. "Power engineer" would be more consistent with the
other provinces, except for Quebec. "Power engineer" is
consistent with the SOPEEC, the Standardization of Power
Engineering Examination Committee, which is a move towards
standardizing qualifications and standards across Canada. "Power
engineer" is more descriptive of certified personnel who operate
and maintain power plants, and "power engineer" is consistent
with the Institute of Power Engineers, which is a chartered
professional organization across Canada.
The existing Operating
Engineers Act regulations refer to "operating" and "stationary."
Those are basically one and the same, but the two terms get
bandied back and forth.
All other provinces call such
people power engineers, as I mentioned. In British Columbia, the
right to this title was won in the courts. I understand it went
all the way to the BC Supreme Court.
We are working towards
national standardization of education and qualifications through
IPEC and SOPEEC. I mentioned SOPEEC before; IPEC is the
International Power Engineering Curriculum. The Institute of
Power Engineers has been a certified national organization, as I
mentioned, since the 1930s. The members are operating engineers,
primarily, and power engineers in other provinces.
In the interests of
consistency and standardization, we request that in the new act
and regulations all references to "operating engineer" or
"stationary engineer" be eliminated and replaced with the term
"power engineer." Thus, we would expect to see the new regulation
be the power engineers regulation and for certificates of
qualification to refer to us as "power engineer."
The second item is, we would
like to have the act include wording to ensure the effective
continuance of industry advisory councils. The board of review is
written into the existing Operating Engineers Act as an advisory
body to the MCCR. Since the formation of the TSSA, we have
operated as the Operating Engineers Advisory Council. This was a
change based on mutual trust and it has worked out well. Other
groups of stakeholders also have advisory councils. Each is
expecting to have input into the act and their relative
regulations, including administration, both now and in the
future. We have no reason to believe that this will not continue,
and we are interested in maintaining the existing format. We have
a letter of commitment from John Walter stating that we would
have that support from the TSSA.
1620
The councils are an important
link between the MCCR and TSSA and their stakeholders. Their
existence provides a measure of trust between the parties, a
means for stakeholders to influence the content and
administration of the act and regulations, a valuable resource to
both the TSSA and MCCR for both technical support and advice, as
well as feedback on non-technical issues.
Many stakeholders feel they
need some assurance that legislative changes will not take place
without their knowledge and an opportunity to advise. We have
seen past occasions when controversial changes were made to the
Operating Engineers Act regulations without consulting the board
of review or other stakeholders, except for a partial group who
were lobbying for specific changes. Unfortunately, this leaves
some stakeholders with distrust of the process. To establish the
future of advisory councils, we request that the new act include
wording to support the existence and functions of each of the
advisory councils as they exist today.
At the present time, each
council is expecting to have input into the formation and
administration of each of the respective regulations to follow
this act. In the future, as in the past, it is expected that
changes will be made to each regulation, as required, to help
assure safety in Ontario. To assure continued stakeholder input
into the regulations and their administration, I would suggest
this wording change that we request. This should include a
requirement that the respective advisory council be consulted and
given the opportunity to make recommendations with respect to all
proposed changes before they are made. Of course, we recognize
that the TSSA and MCCR would not be bound to follow those
recommendations.
I thank the committee for
this opportunity, and request full consideration be given to
these requests. These two items will do much to achieve
stakeholders' acceptance of the new legislation. We would
appreciate a response if that's possible.
As a footnote, I must
represent some of our stakeholders in that some of the
stakeholders are concerned that the act may be passed ahead of
the regulations. I understand that's not the normal way of doing
things, but I just want you to be aware that some people are
concerned that if the act goes through without the regulations,
they may not be able to have any influence on the
regulations.
The Chair:
Thank you, Mr Stinson. Any comments or debate? Ms Churley? No.
Government members?
Mr O'Toole:
Thank you very much, Mr Stinson. I respect the professional CV
you provided here. Certainly you have 40 years of valid
observations. As you are probably aware, in the development of
this framework legislation there were extensive consultations
with over 200 individual groups. In your response you can
acknowledge if you were or were not involved. But it's my
understanding that the TSSA has committed to continue that
further consultation process, that model.
What this really does, in my
understanding, is put the regulatory support for these seven acts
into a framework that's more flexible, more accessible. Certainly
under the letters patent TSSA is still ultimately responsible for
ensuring public safety. It's also your responsibility, as you've
done today, to bring to the attention of the TSSA concerns you
might have, some of which may be technical and safety in nature
and some of which may have other motives, if I could leave it at
that.
Technically, in my short time
here, on two or three occasions we've had groups come with us to
help define "technician," "technologist," the whole sensitivity
around some of these terms. I didn't realize it was so
intimidating or territorial, but I think the same provision
applies with the term "engineer." This trade, as well recognized,
as well respected as it is in Ontario, probably serves as a model
for the rest of Canada as it is. I think I've sort of responded
to the two points. The continued consultations-it's on record;
you've been here, and I thank you for that, to put it on the
record and hold us accountable. It's a continuous review process,
the model they've developed. I hope that, respectfully, responds
to some of the issues you've raised in your presentation.
Mr Stinson:
We do recognize, of course, that you would not want to put into
the act that the council be a formation accountable directly to
the MCCR. But perhaps you could make the legislative
agency-perhaps the administrative authority could be made
responsible for maintaining those councils. As long as the TSSA
is that authority, I don't think many of us have much concern,
but we don't know where this is going in the future.
Mr O'Toole:
If I may, without starting a dialogue, there's one other a small
point. I do believe ultimately the overarching responsibility
rests with the government, whoever that is. So you're not
absolved; you're kind of at arm's length, and I think that's
important to put on the record.
The other point I was trying
to make was that, something you mentioned in your presentation,
the act would pass before the regulations. Quite honestly, that's
the way it happens. In my limited experience, you pass the bill
and you sort of cross your fingers that the regulations will
support that. I'm not trying to be too flippant there.
Ms Churley:
You've got it.
Mr O'Toole:
It's important to be vigilant. I think the delegations we've had
today are testimony that you have come here, unsolicited and
unfettered, through whatever means, and are being heard, as you
should continue to be heard.
Mr Stinson:
I do appreciate that.
Mr O'Toole:
They'll be gazetted. I think as the regulations go, that's the
formal process. They would be published and you would have a
chance to comment then, if not before the development.
Mr Lalonde:
On the second page, the back of the copy that you've given us, in
the paragraph which starts, "At the present time," you indicate,
"I would suggest that the act include wording to support the
existence of advisory councils as they exist today." Where would
you see that in the act? Could you tell us where it should appear
in the bill?
Mr Stinson:
Precisely what page or what section, I'm not sure.
Mr Lalonde:
This would prevent me from reading this whole thing over again.
If there's an amendment to be brought forth, we would-but at the
present time I'd just like to know which section you refer
to.
Mr Stinson:
I don't know. Can you help me on that one, John? Where should it
go?
Interjection.
Ms
Churley: Can we ask for some assistance from somebody
who knows the act, where it might go?
Ms Kathy
Levine: I'm Kathy Levine. There is no provision in Bill
42 for consultation with advisory councils, exactly. There's no
express provision.
Ms
Churley: He's looking for an amendment.
Ms Levine:
That's right.
Ms
Churley: We're asking where, if we were to make such an
amendment, you would see it go within the existing-
Ms Levine:
Legislative counsel might have some opinion on that, but it would
be an addition to Bill 42. It would be a new section to Bill
42.
Mr
Lalonde: It would be a new section; so we would have to
study it a little further. The fact that we didn't get this
notice before prevents us from doing some research on that. I do
recognize the importance of consultation in this case.
The Chair:
When we're finished with the delegation, we'll have legislative
counsel come back up and give us some advice on that. Would that
be satisfactory?
Mr
Lalonde: Yes.
Mr Jerry J.
Ouellette (Oshawa): You asked for the name change from
"operating engineers" to "power engineers." When the Operating
Engineers Act came forward, why was that recommendation not made
at that time?
Mr
Stinson: That was made-what year was that? I believe
it's the second-oldest act in the Ontario government. That act
was made before the turn of the century, if I'm not mistaken. It
is a very old term.
Mr
Ouellette: What I'm seeing in another piece of
legislation I'm working on is that there are constantly changing
names for various aspects of engineering and that the field is
constantly diversifying. How do you come forward with a name
that's going to cover all, so that the next time a name is
changed or specifics applied, it can be applied without changing
legislation?
Mr
Stinson: I would not anticipate another name change if
we've got this one. As I say, it would be consistent then with
other provinces, except for Quebec.
Mr
Ouellette: Yes, I see you've mentioned that in there. So
you don't think there would be any other diversification of name
change?
Mr
Stinson: No.
Mr
Ouellette: I know in the Professional Geoscientists Act,
we're seeing a considerable number of name changes there.
Mr
Stinson: Within the operating engineer group right now,
we have first, second, third and fourth class. I would still see
that continuing. You would have power engineer first class,
second class, third class, fourth class.
The Chair:
Any additional questions? If not, then, Mr Stinson, thank you
very much for your presentation. We appreciate it.
Mr
Stinson: Thank you for the opportunity.
The Chair:
I'm going to suggest to the committee that we have about a
10-minute break so we can discuss the get some advice from the
legislative lawyer to answer Mr Lalonde's questions, and if it
could be done.
Mr
O'Toole: How long? A couple of minutes, or what?
The Chair:
Let's say five minutes. I think that's probably enough.
The committee recessed
from 1632 to 1644.
The Chair:
We'll call the meeting back. I would like to introduce
legislative counsel, Chris Wernham.
As well, Mr O'Toole, you
are the parliamentary assistant who is carrying this bill. Would
you like to make some comments and indeed introduce the people
with you, please?
Mr
O'Toole: I just want to start by introducing the people
who will be helping us to work our way through Bill 42.
Immediately on my left is Allan Williams, policy adviser to the
minister. We also have ministry staff: Rob Dowler at the far end
is director of the marketplace standards and services branch at
the ministry; Karen Golden, policy and agency relations branch;
Katherine Levine, the scriptor of this bill; Scott James,
industry self-management liaison unit; and Carol-Lynn Lepard,
communications services branch. Many of us have read the things
she sends us to help advise consumers.
Also with us today we have
the Technical Standards and Safety Association, John Walter,
president and CEO, and David Scriven, corporate secretary. Thank
you for joining us. For the record, you might want to know that I
also thanked the presenters earlier today.
I have a duty as
parliamentary assistant to read into the record a preamble which
hopefully will help us to go through expeditiously the amendments
that are before us.
I'm pleased to speak in
support of the Technical Standards and Safety Act and introduce
it for clause-by-clause reading at the standing committee on the
Legislative Assembly.
The purpose of this act is
to enhance public safety in Ontario with respect to the operation
of amusement and elevating devices, boiler and pressure vessels,
the hydrocarbon fuel sector, the activities of operating
engineers and upholsterers, and stuffed articles.
The act consolidates
many-
Interjection.
Mr
O'Toole: Stuffed full of what, is the question.
The act consolidates many
fundamental elements presently found in the seven statutes
governing technical standards and public safety that are being
repealed. It establishes one streamlined framework and retains
the essential elements of a licensing scheme. The technical
standards in the current act would be transferred to regulations,
which then can be amended more rapidly to keep pace with
technology and developments. This would allow regulated
industries to make improvements in safety equipment quickly as
new technologies become available. The administration of these
statutes has already been delegated to the Technical Standards
and Safety Authority under the Safety and Consumer Statutes
Administration Act, 1996.
The TSSA is accountable to
the government for its performance under a legally binding
administrative agreement which sets out the details of reporting
requirements, financial arrangements and governance. The ministry
retains responsibility for the public safety statutes and
regulations, and oversees TSSA's performance to ensure public
safety standards are maintained and, in many cases, improved.
To develop this bill, the
Ministry of Consumer and Commercial Relations has worked in close
co-operation with the Technical Standards and Safety Authority.
The evidence to date indicates this administrative model is
working well to enhance public safety.
The TSSA, a private,
not-for-profit organization, can retain the fees it collects from
the industries for the services it provides. Revenues can then be
directly reinvested into public safety programs and services.
The TSSA has delivered
services more efficiently than government has in the past. For
example, figures indicate that the number of inspections has
increased over the last five years for elevating and amusement
devices, and the number of serious injuries from accidents has
significantly decreased.
The TSSA has strengthened
partnerships with associations and government organizations
across Canada and the United States to promote a greater
understanding of Ontario's public safety requirements. This is
helping to achieve a greater degree of compliance among companies
from other jurisdictions to allow them to operate safely in
Ontario.
The legislation would pave
the way for businesses in technical industries in this province
to continue the very high standards they have achieved to date.
This new legislative framework would reduce red tape for the
industries by modernizing and improving the efficiency,
responsibility and flexibility of the existing legislation, while
at the same time enhancing public safety.
Streamlining is another key
feature of the legislation. For example, the new legislation
provides for uniform decision-making and appeals processes for
all of the technical industries administered by TSSA. The new
system would be simpler and more cost-effective for both TSSA and
its stakeholders.
In developing the
legislation, the Ministry of Consumer and Commercial Relations
and TSSA conducted extensive consultations with industry
specialists and consumer groups. More than 200 stakeholders were
consulted in drafting the proposed new legislation, and TSSA is
committed to further consultations on any of its future proposed
regulatory changes. The consultations included representatives
from large industry groups like Paramount Canada's Wonderland and
Otis Elevator to small business representatives like the
Independent Retail Gasoline Marketers Association. Consumers were
also represented during the consultations through groups like the
Consumers Council of Canada.
The bill is really a
compilation of the best aspects of seven predecessor statutes,
and I invite the committee members to commence its review in
clause-by-clause.
1650
The Chair:
Thank you, Mr O'Toole. We will move then to-
Ms
Churley: Can I ask one question, or is that allowed
under the procedures now?
The Chair:
It's allowed, Ms Churley.
Ms
Churley: See how respectful I am being here? I just want
to ask you not really a technical question, but you mentioned
that the number of elevator inspections has increased. You know I
have a particular interest in this. Being the former minister, my
name gets to be in them.
Mr
O'Toole: That's right. I see your name in all of
them.
Ms
Churley: Actually, the question isn't specifically on
elevators. You used elevators as an example of service increases.
I know that revenues have gone up, and in certain cases user
fees. What I'm wondering is if you have documentation in all the
areas to back up your claim that you are in fact doing more
inspections across the broad.
Mr
O'Toole: With your indulgence, I'll let Rob answer, but
in a more lighthearted response I would say we're always doing
more with less.
Ms
Churley: And I go up and down with you every day.
Mr
O'Toole: That's fine.
Interjections.
Ms
Churley: I can't tell you how many times I used to hear
that. OK, sorry.
Mr Robert
Dowler: Unfortunately, I don't have the specific number
with me in regard to elevators, but I can give you an overall
number for TSSA.
Ms
Churley: Actually it wasn't elevators. John used that as
an example. I was interested overall and not in specific
areas.
Mr Dowler:
Overall, OK. Let's see. Prior to delegation to TSSA, the ministry
conducted approximately 138,000 inspections per year. That number
has increased to 178,000 under TSSA. That's across all the seven
regulated sectors.
Ms
Churley: In terms of fees, have there been
across-the-board regular increases, or is it really uneven in
terms of who's paying more for what they're getting?
Mr Dowler:
My understanding is that the fee schedule has not changed
dramatically since devolution to TSSA. There is a proposal, which
is being consulted on right now, to rebalance the fee schedule.
Some sectors are felt to be paying a little too much; some
perhaps not quite enough.
Ms
Churley: That's what I was getting at, actually.
Mr Dowler:
That is a proposal which is being circulated at present, but to
my knowledge it has not been implemented yet.
The Chair:
We will move into clause-by-clause of Bill 42. Any additional
questions, comments or amendments to the bill, and if so, to
which sections?
Ms
Churley: I want to move an amendment to section 3.
The Chair:
We'll do that when we get there.
Ms
Churley: Oh, I see. We have to do it in section 3. I
haven't done this in a while. I forgot the way it works.
The Chair:
I'm learning a little too, to be honest with you.
Shall sections 1 through 3,
inclusive, carry? All in favour? Carried.
Your amendment, Ms
Churley?
Ms
Churley: Are we in section 3.1 now?
The Chair:
Yes.
Ms
Churley: I move that the bill be amended by adding the
following section:
"DESIGNATED ADMINISTRATIVE AUTHORITIES
"Composition
"3.1 (1) Despite subsection
3(2) of the Safety and Consumer Statutes Administration Act,
1996, the Lieutenant Governor in Council may not designate an
administrative authority as a designated administrative authority
if a majority of its board of directors are representatives of
the economic sectors comprising things governed by this act.
"Revocation of
designation
"(2) The Lieutenant
Governor in Council shall revoke the designation of a designated
administrative authority in accordance with section 6 of the
Safety and Consumer Statutes Administrative Act, 1996, if, at any
time, a majority of its board of directors are representatives of
the economic sectors comprising things governed by this act.
"Member appointed by
minister
"(3) The term of
appointment of a member whom the minister appoints to the board
of directors of the designated administrative authority under
subsection 8(1) of the Safety and Consumer Statutes
Administration Act, 1996, shall be fixed."
The Chair:
Do you wish to make any comments before I ask for debate?
Ms
Churley: Yes, I do. Mark Winfield gave an overview of
some concerns his organization has about this. I want to
apologize on the record again that I wasn't able to get the
amendments to the committee earlier. I had meant to, and we were
overtaken with other events.
I think part of the problem
here is that this was like a big, fat technical bill and perhaps
not a lot of people paid attention to it. I had the opportunity
to sit down and meet with Dr Winfield yesterday or the day
before, and he brought some of these issues to my attention at
that time.
I should remind the
committee that our party, the NDP, voted against the initial
bill, and it's expressed very well in Hansard why. I believe Mr
Martin, who is our critic for MCCR, indicated we would perhaps be
supporting this bill. However, upon reflection and noticing some
concerns, particularly in light of our earlier concerns on
principle in many ways, I do have some major concerns. I've moved
this amendment to deal with one of the major ones Dr Winfield
expressed concern about, and that is possible conflict of
interest and that the majority of the board of directors are
representatives of the economic sectors they're actually
serving.
I would ask for support for
this amendment, because I believe it will deal with the concern
around the issue outlined by Dr Winfield, and I'd be happy to
answer any questions I can about it.
Mr
O'Toole: I again want to respond by saying that I
appreciate the input by Dr Winfield. I think it's important
consumer advocacy, and I support that. However, in the context of
this bill, this new section would not necessarily be in order, in
my view. I'd abdicate to the legal counsel, but actually this
would be covered in the Safety and Consumer Statutes
Administration Act, which created the TSSA. In that respect, the
governance issues could be addressed through that legislation, as
opposed to adding them out of context. They're inappropriate for
this section. Legal counsel, would you support that layman's
impression?
Ms Levine:
Yes. The SCSAA is the legislation that does establish the
framework for delegation of regulatory authority over a delegated
statute. That would be the appropriate legislation to deal with
issues of the board of directors. In fact, it is addressed
in-
Mr
O'Toole: It's in Bill 54 already, which we dealt with
last in 1996.
Ms Levine:
That's right.
Ms
Churley: What's in that bill?
Mr
O'Toole: The board composition.
Ms
Churley: What I'm trying to address here is what is
within that bill then, and the same concern is expressed in my
amendment here. I cannot understand why it can't be included as
another section to 3 here to clarify, because this is the bill
we're dealing with now. That bill has already gone through the
Legislature and has been passed. How can I amend that bill,
except to persuade the government to do it? I don't understand
the legal reasons why, within this section here, which deals with
the designation of certain-let me take a look at this a second. I
don't see why it can't fit within the content of this section.
This is a major public concern. That's the only way to address it
within this bill.
Mr
O'Toole: With respect to what you said, I'm putting it
on record right now that the ministry is certainly committed to
reviewing the administrative authority in the coming months, as
constituted in what was the Safety and Consumer Statutes
Administration Act. On the record, we are committed to reviewing
the legislation which governs the model you're trying to amend
here, the governance model, in the next few months. Your
amendment, in the context of this discussion, could be sent to
the minister. He's interested in reviewing it.
1700
Ms
Churley: I have to tell you that although it was done
very quickly, I was told by leg counsel, or at least my
legislative assistant was told, that this amendment was in order.
I don't know who he talked to, but I would like to get a
clarification.
Ms Levine:
I'd like to clarify my comment. It's more a question of where it
is appropriately addressed rather than whether it's in or out of
order, which I can't speak to. We have legislation that
establishes a framework for not just the TSSA but for five
delegated administrative authorities. So issues that pertain to
the manner of delegation are the subject of the SCSAA. But as to
what is in or out of order, I can't-
Ms
Churley: So now you're telling me it's not necessarily
out of order; that in your view you could see that it might be
appropriate in another piece of legislation, but it's not out of
order.
Ms Levine:
No. That is not my call to make.
Ms
Churley: Having said that, the motion is then still on
the floor. I believe, if we're passing this piece of legislation
today, that it's important to include this amendment in the
legislation.
Mr Brad Clark
(Stoney Creek): I have a couple of questions. Five
administrative authorities, you mentioned, are covered under a
separate act. Does that act address the appointment of the people
on those administrative authorities?
Ms Levine:
It deals with the board composition and has a statement that
there have to be consumer representatives and industry
representatives on the board. That's dealt with in the
legislation. It also provides that the minister may appoint a
minority of members to the board.
Mr Clark:
So the minister may appoint a minority of members to the board,
but there have to be consumers on the board also?
Ms Levine:
In terms of the-
Mr Clark:
Can you explain the board composition, so that I understand
it?
Ms Levine:
It is dealt with in section 8 of SCSAA, or Bill 54, as you still
call it. It says, "The minister may appoint at pleasure one or
more members to the board ... as long as" they "do not constitute
a majority" and the composition includes representatives of
consumer groups, business-
Ms
Churley: Can you speak up a little? I'm sorry.
Ms Levine:
I'm sorry.
Mr
O'Toole: "The members appointed by the minister may
include representatives of consumer groups, business, government
organizations or such other interests as the minister
determines."
Mr Clark:
So that is a separate act. Is that correct?
Mr
O'Toole: Yes, we're reading from the Safety and Consumer
Statutes Administration Act, I guess.
Ms Levine:
Yes, the SCSAA, as we call it, because it is such a long
name.
Mr
O'Toole: Bill 54.
Ms Levine:
Bill 54.
Mr Clark:
I don't support that we should be amending it and putting
something in this act when it's covered under another act. That's
my position.
Mr
Lalonde: It's the word "may" that they just mentioned,
"The minister may appoint." "May" doesn't mean "will be
appointed." The minister could turn around and appoint only
industry reps on it. I do recognize the importance of this
amendment. This way we have at least some industry sector reps
and some non-industry reps on that, according to the amendment
she brought up there. So the word "may" doesn't mean that it
must.
Ms
Churley: We need to be clear. We're not leg counsel. I
was advised that this amendment is OK and in order. I haven't
been told otherwise yet, and we can argue whether it's in or out
of order, but I guess we need confirmation of that. I believe it
is in order, from what I've been told.
Mr
O'Toole: To clarify the record, if I inadvertently said
it's out of order, that's not-
Ms
Churley: That's what you said.
Mr
O'Toole: Yes, OK. Well, I correct that and say it's not
essentially out of order, and I guess we could vote on it.
The Chair:
If there are no other comments, we deem this motion to be in
order.
Ms
Churley: Can we have a recorded vote, please?
The Chair:
Indeed.
AYES
Churley, Lalonde.
NAYS
Clark, Mushinski, O'Toole,
Ouellette.
The Chair:
The amendment is defeated.
The next one: Ms Churley,
3.2.
Ms
Churley: I move that the bill be amended by adding the
following section:
"Duties
"3.2 Each designated
administrative authority shall exercise its powers and duties
under this act in such a manner as to protect the environment and
the health and safety of the public."
The Chair:
Would you like to make a comment?
Ms
Churley: Yes, I think this will add to the bill, to have
it very explicit within the bill, and at this point it isn't.
Again, as Dr Winfield pointed out, when you as a government are
busy putting all our safety laws and regulations into the hands
of the private sector, it's important that we have stated as
clearly as possible in writing within the bill the substantive
duties of that non-profit private agency. So I actually don't see
any reason why people wouldn't agree to having this in.
Mr
O'Toole: In a general sense, the entire purpose of this
act, the Technical Standards and Safety Act, is to enhance public
safety. It's in the letters patent and it's in the mandate. In
that sense it would be wrong to exempt them in any regard from
that duty, due diligence in that mandate. This might imply that
it's pointing it out as something it isn't doing otherwise, and I
put to you that it is.
Ms
Churley: That's all very well, and it's nice to take
your word for it. But the problem is that there has been a
stripping out of all the substantive elements that used to be
there when it came under the ministry. Now the board of
directors, as has been pointed out by Dr Winfield, and all the
staff from this section within your ministry is over in this
agency. They are going to be the ones in charge of writing these
regulations, and because we're now in a situation during the
transfer that we don't have these substantive elements in the
legislation, I think it's important that we have this within the
act.
Mr
O'Toole: I again refer to the section of Bill 54, which
is the genesis of this TSSA and which we will be referring to,
and the designated administrative authorities' duties:
"7(1) A designated
administrative authority shall carry out the administration of
designated legislation delegated to it and shall do so in
accordance with law, this act, the designated legislation and the
administrative agreement, having regard to the intent and purpose
of this act and the designated legislation.
"Additional activities
"(2) Nothing in this act
restricts a designated administrative authority from carrying out
other activities in accordance with its objectives."
In other words, I suspect
it's just sort of repeating. It's clear that the request here-the
environment and the health and safety of the public are implicit
with respect to this authority of the TSSA.
1710
Mr
Lalonde: I don't see the reason to add this amendment,
because the purpose of the bill is to protect the environment and
health and safety. This is exactly what we're saying in
there.
Ms
Churley: Could I ask a question? Could you explain to
me-I understood what you just said, although I don't agree. That
doesn't clear up the problem we have here with this particular
piece of legislation. What would be your problem in having this
added to the bill? How could it harm when it can only do some
good in terms of substantively stating its duties and powers;
that is, to protect to the environment and the health and safety
of the public? That's what the entity is all about. In other
words, what problems would it cause? That's what I'm asking.
Mr
O'Toole: In a general sense the previous NDP amendment,
as well as this one, is dealing really with, in my view, Bill 54,
the delegated authorities, as such, they were the genesis of the
TSSA. In that, they do have responsibility in the broadest and
specific sense to address public safety and the environment. I
have some difficulty with why this amendment is adding something
which-
Ms
Churley: I'm sure you heard Dr Winfield's comments on
this. He identified a number of weaknesses in the model. I think
what we're trying to do here is improve it out of concern for-and
let me put on the record that I have the greatest respect for
John Walter and his staff. I work directly with John and I know
first-hand about John's integrity. This is not in any way an
attack on Mr Walter and the staff. I know they're dedicated.
This is simply trying to
make a bill stronger in the public interest. I believe from what
I've seen, and I admit I haven't had a lot of time to read it,
but in my own initial review of it and in light of what Dr
Winfield had to say, it appears to me that one of the problems is
the failure of the government to provide the authority with clear
policy direction-Dr Winfield made that clear-either through the
SCSAA or the administrative agreement.
What you seem to be saying
is, don't worry about it; it's taken care of in Bill 54. I don't
believe it is. I believe we have to strengthen this bill and put
this particular section in there. I still don't understand, John,
from your comment to me, why it would be a problem to have it in
this bill.
Mr
O'Toole: In a general sense, the scope here in section
1, that we've already voted on, is the purpose of applicable
definitions. "The purpose of this act is to enhance public safety
in Ontario by providing for the efficient and flexible
administration of technical standards with respect to the matters
referred to in section 2." That lists the seven different
statutes that are being combined.
Ms
Churley: That's a pretty general overview.
Mr
O'Toole: I think if you go back to 54-we read the
section before-it's quite specific in its duties. The letters
patent that we looked at earlier in Mr Winfield's delegation to
us are also quite specific. We could just go on for 100 years on
this one.
Ms Marilyn
Mushinski (Scarborough Centre): I've spent so much time
discussing separation of powers in the last few weeks that I need
to get some understanding of this. It would seem to me that,
first of all, in the title itself, Technical Standards and Safety
Act, implicit in that is what's trying to be achieved in the
amendment. I'm just trying to figure out what the governing
legislation is here.
It's TSSA's responsibility
to protect public safety. That's implicit in the title, right?
It's also set out in its letters patent, correct? My
understanding is that one of the acts which TSSA is responsible
for is scheduled under the Environmental Bill of Rights. Is that
correct?
Mr
O'Toole: Yes.
Ms
Mushinski: OK. Is there any plan to change that under
42?
Interjection.
Ms
Mushinski: OK. Is there currently some kind of a review
underway with respect to the administrative authorities under
this bill or under 54?
Ms Karen
Golden: I think this bill deals with the technical
standards and safety of the regulated industries, as opposed to
Bill 54. This amendment is talking about the governance of all
the different administrative authorities. With respect to the
governance of the administrative authorities, my understanding is
that staff are preparing to conduct a review of this
administrative authority model through the summer. Changes that
are purported to be made to all of the administrative authorities
could best be reviewed in that context, in the context of Bill 54
and in the context of this cross-review, as opposed to putting in
sections in an act that is seen to be a technical standards and
safety act for one administrative authority. That would seek to
somehow change the rules of governance across the board.
Ms
Mushinski: Right. I couldn't have said it better myself.
That's good.
Ms
Churley: I understand what you're saying. I
fundamentally disagree that we should just see this bill as a
technical bill. That's in fact what a lot of people thought when
they first looked at this big, thick bill. There's some
independent analysis that is telling us that there are some
fundamental problems and issues which we need to resolve while
we're taking the public safety into account.
We have to pay attention to
that. I take great issue today with saying, "Don't worry, we
don't need to put it in here because we're going to deal with it
in another place, in another bill, at another time." I don't
think that's appropriate. We are dealing with environmental
protection and we're dealing with public safety.
I believe that to any
extent that we can strengthen it in this bill-because we know
it's going to pass at the end of the day. It would give me some
more comfort, unless there's some reason it shouldn't be in here.
Beyond that, I don't accept that it is better dealt with later,
in the future, down the road in another bill.
Mr Clark:
With reference to the report from CIELAP, I had an opportunity to
speak to Mr Winfield, and I raised the spectre that the ministry
was telling me that there was going to be this review process of
this other bill which would deal with all of the authorities. In
light of that, would it be imperative that these things be in
this act, or would it be more appropriate that we deal with it on
the other side? He said: "There's merit to both, but if it
doesn't get done here, we could still deal with it on the other
side. It makes sense there also."
That's why I'm feeling
comfortable with the suggestion that we deal with it with the
review and look at it with all of the administrative authorities
together. I hear what you're saying. I'm just saying that in my
mind it makes more sense to deal with it with the bill that deals
with all of the authorities, as opposed to just one specific one
and leave the other ones hanging. That is my position on it.
1720
Ms
Churley: This could be used as a prototype. Is this
review happening at this very moment?
Mr Dowler:
If I could help with that, the terms of reference have been
prepared for the review. We expect that the review will be
conducted over the course of the summer and fall, and we hope to
have a draft prepared in late fall.
Ms
Churley: A draft prepared in late fall.
Mr Clark:
With respect then, that gives us an opportunity, and it also
gives Mr Winfield and yourself a real opportunity to look at
these suggestions and deal with it with the review and
incorporate your suggestions in that bill.
I'm not trying to be hard
to get along with. I'm just trying to think pragmatically. Very
sincerely, I have concerns about some of these things I spoke to
him about. But I am comfortable in letting it go through the
review process and dealing with it at that point.
Ms
Churley: If I may, and I'm glad you talked to Dr
Winfield about this, I'm never comfortable losing an opportunity
to improve a bill and make it more responsive to concerns about
safety.
There is a review happening
and a supposed draft in the fall. We don't know what's going to
happen with that. We're in a committee today where we have an
opportunity in this particular bill to make a difference now.
That is my argument. I don't feel comfortable that later down the
road we have an opportunity. It may or may not happen. We're here
now, dealing with this bill. I still strongly recommend that we
take this opportunity to do the right thing and get this in the
bill that's before us today.
Mr
O'Toole: In the interest of the committee's time and
also to respect the points being made by the member, the next few
amendments, all dealing with additional sections, up to 3.5, I
would suggest are valid concerns. You've heard that from other
members, including myself. Respectfully to Mr Winfield as well,
it would be more appropriate in my view-because this TSSA deals
with seven acts and the designated administrative authority, Bill
54, is probably the place which you've been told by staff is
going to be in a draft form in the fall.
I would support much,
including, as one of your later amendments addresses, the
Ombudsman's role. One of them is the Provincial Auditor's role in
these designated authorities, as well as the lobbyist
registration, all of which, by the way, were in the doctor's
report, the Freedom of Information and Protection of Privacy Act,
as well as the one we're dealing with now. They are at a higher
order dealing with any designated administrative authority group,
not just the ones dealt with in Bill 42.
What I'm saying is this: We
can spend a lot of time on the same discussion on each one of
them. I believe they have merit. I would be encouraged to forward
those to this review of Bill 54, which we have staff's assurance
is being done, and I'm saying that on the record here. That
would, in my view, be the appropriate place, and the debate we're
having here is value added to the public safety discussion we're
having.
Ms
Churley: I would suggest then that we vote on the
particular amendment I just moved, because I certainly have
something very specific to say about my following amendments that
you've just addressed. Perhaps we should vote on this one so I
can get to the next one, so I can respond to what you said,
unless there are any more questions.
The Chair:
Additional debate on section 3.2?
Ms
Churley: A recorded vote, please.
AYES
Churley.
NAYS
Clark, Lalonde, Mushinski,
O'Toole, Ouellette.
The Chair:
The amendment is defeated.
Section 3.3?
Ms
Churley: I guess I have to move these one at a time and
discuss them.
I move that the bill be
amended by adding the following section:
"Application of other
acts
"3.3 Each designated
administrative authority shall be deemed to be an institution as
defined in the Freedom of Information and Protection of Privacy
Act."
The Chair:
Comments?
Ms
Churley: I am going to take this opportunity. I know I
have to read all of these others into the record, but I'll speak
to them all at once, as Mr O'Toole did.
You will note that the next
one is the lobbying one, the next one is the Provincial Auditor,
and the next one is the Ombudsman.
Ms
Mushinski: They all have to be read into the record.
Ms
Churley: The reason why I really particularly want us to
pass these today is that I would almost like to suggest that it
was an oversight that it wasn't included in the first place. When
you're transferring something as essential and important as this
particular kind of public service over to a private agency,
accountability to the public is of the absolute utmost
importance.
A couple of people have
alluded to the situation in Walkerton and the confusion around
who's responsible to whom when you've got public labs. We have
the situation where the second public lab, which did the tests in
April and May, and their most recent tests, said that they didn't
have to give the results to anybody but their client; they're a
private lab. I'm sure that under the present circumstances and
many investigations, that will be looked at, and regulations are
being brought in. But we cannot have a bill before us that
transfers completely all of the safety acts under this ministry
to the private sector and not have the accountability to the
public and to the government built in. I just think it's absurd
and that we would all want to include those in this act today. I
think that would give many people a great deal of comfort.
We did hear Dr Winfield
express that we have to be very careful with these things. When
we transfer things that have been traditionally done by
government, to the private sector, and it's happening more and
more, accountability is of the utmost importance.
He also said, and you'll
see it in his report, that this is not the first time that this
kind of transfer has happened in other jurisdictions, but it's
the only jurisdiction in his study that actually-I believe he
cited New Zealand, England, France; I'm not sure, but I think
those were the ones-did something similar, but in fact did build
in this accountability structure. So I would urge the committee
to at least support these particular amendments today.
Mr Clark:
I stand by my earlier comments. We're at loggerheads; I
understand that. I'm simply stating that these issues are more
appropriately, in my opinion, dealt with after the review with
the other act.
The Chair:
Additional comments? Debate?
Ms
Churley: Recorded vote.
AYES
Churley, Lalonde.
NAYS
Clark, Mushinski, O'Toole,
Ouellette.
The Chair:
The amendment does not carry.
On 3.3(2), and they have to
be read in.
Ms
Churley: I move that section 3.3 of the bill be amended
by adding the following section:
"Lobbying
"(2) Each designated
administrative authority shall be deemed to be a public office
holder and an organization that employs an in-house lobbyist, as
those terms are defined in the Lobbyists Registration Act,
1998."
No discussion, just a
recorded vote, unless other people support it.
The Chair:
Any debate on this motion? Recorded vote then.
AYES
Churley, Lalonde.
NAYS
Clark, Mushinski, O'Toole,
Ouellette.
The Chair:
The motion is defeated.
Section 3.4, please.
Ms
Churley: I move that the bill be amended by adding the
following section:
"Audit
"3.4 The accounts and
financial transactions of each designated administrative
authority shall be audited annually by the Provincial
Auditor."
A recorded vote.
AYES
Churley, Lalonde.
NAYS
Clark, Mushinski, O'Toole,
Ouellette.
The Chair:
The motion is defeated.
Section 3.5 please.
1730
Ms
Churley: I move that the bill be amended by adding the
following section:
"Ombudsman
"3.5 The functions of the
Ombudsman shall include investigating any decision or
recommendation made or any act done or omitted in the course of
the administration of a designated administrative authority and
affecting any person or body of persons in his, her or its
personal capacity."
A recorded vote,
please.
The Chair:
Discussion? No.
AYES
Churley, Lalonde.
NAYS
Clark, Mushinski, O'Toole,
Ouellette.
The Chair:
The motion is defeated.
Shall sections 4 through to
16, inclusive, carry?
Ms
Churley: Recorded, please.
AYES
Clark, Lalonde, Mushinski,
O'Toole, Ouellette.
NAYS
Churley.
The Chair:
Section 17, A government amendment:
Mr
O'Toole: I move that subsection 17(1) of the bill be
struck out and the following substituted:
"Inspection without
warrant
"(1) An inspector may at
any reasonable time, without a warrant, enter any lands or
premises where the inspector has reason to believe, in good
faith, any of the things, parts of things or classes of things to
which this act, the regulations or a minister's order apply are
used, operated, installed, made, manufactured, repaired,
renovated or offered for sale and carry out an inspection for the
purpose of determining in the public interest whether,
"(a) this act, the
regulations or a minister's order are being complied with; or
"(b) a hazardous condition
exists."
The Chair:
Discussion? Mr O'Toole, do you wish to make comments?
Mr
O'Toole: No.
The Chair:
All in favour of the amendment on the floor? Opposed?
Will section 17, as
amended, carry? All in favour? Opposed? Carried.
Will sections 18 through
20, inclusive, carry? All in favour? Opposed? These sections are
carried.
On section 21, a government
amendment:
Mr
O'Toole: I move that subsection 21(5) of the bill be
amended by striking out "under subsection (1) or (2)" and
substituting "under subsection (2)."
The Chair:
Discussion on the amendment? All in favour of the amendment?
Opposed? Carried.
Shall section 21, as
amended, carry? All in favour? Opposed? Section 21, as amended,
is carried.
Shall sections 22 through
to 36, inclusive, carry? All in favour? Opposed? Carried.
Section 37: Two opposition
amendments.
Mr
Lalonde: I move that subsection 37(1) of the Technical
Standards and Safety Act, 1999, be amended,
(a) by striking out
"$25,000" and substituting $50,000"; and
(b) by striking out
"$100,000" and substituting $1,000,000."
The Chair:
Discussion, Mr Lalonde?
Mr
Lalonde: No discussion.
The Chair:
Mr Ouellette?
Mr
Ouellette: Seeing that in subsequent follow-up, repeat
offences are possible, I would be supportive of the amendment put
forward.
The Chair:
Any other discussion on this?
Mr
O'Toole: As a clarification, being PA, I'm just
wondering if I could ask legal counsel, is there discretion by
the board or TSSA or is the money we're stating here an upper
limit? Or is it an absolute that they enforce that amount?
Ms Levine:
This is prosecution, so it would be up to the judge.
Mr
O'Toole: Oh, the courts.
Ms Levine:
It's up to the courts.
Ms Golden:
It's a maximum.
Mr
O'Toole: It is a maximum, but they could assign any
subordinated amount to that?
Mr
Lalonde: I move that subsection 37(3) of the Technical
Standards and Safety Act, 1999, be amended by striking out
"$25,000" and substituting "$50,000."
The Chair:
Any discussion on this amendment?
Ms
Churley: It's the same situation where it's up to
$50,000, but it's the discretion of a court?
Mr
Lalonde: Not more than $50,000 instead of not more than
$25,000.
Mr
Ouellette: Once again, in light of allowing for
follow-up and repeat offenders, I think that's a necessary
move.
The Chair:
Any other discussion? If not, we have an amendment on the floor.
All in favour? Opposed? Carried.
Shall section 37, as
amended, carry? All in favour? Opposed? The section is
carried.
Shall sections 38 through
to 48, inclusive, carry? All in favour? Opposed? Carried.
Shall the long title carry?
All in favour? Carried.
Shall the bill, as amended,
carry?
Ms
Churley: May I have a recorded vote, please.
AYES
Clark, Lalonde, Mushinski,
O'Toole, Ouellette.
NAYS
Churley.
The Chair:
Shall I report the bill, as amended, to the House? All in favour?
Opposed? Carried. Ordered that the Chair report Bill 42, as
amended, to the House.
We've got a couple of other
things just before you go.
The following items need to
be rescheduled: The review of the Clerk of the House, the review
of the Sergeant at Arms and the review of the televising of the
legislative proceedings. These were supposed to be on the 18th.
Does the committee wish these items to be scheduled for June
8?
Ms
Churley: It's just a sit-down to discuss the routines
and procedures?
The Chair:
As I understand, they do a report and it's sometimes an annual
thing.
Mr
Ouellette: I would recommend that the subcommittee meet
and discuss what is necessary to proceed with that matter.
The Chair:
You're going to have make another motion on that one. This was
already approved and we were to do it on the 18th, except that we
got bogged down that day. So it is approved. It's more on what
date. If we can go ahead and schedule for June 8.
Mr Clark:
Does it have to come before the committee or can the subcommittee
deal with it, procedurally?
The Chair:
The subcommittee recommends they come before the full committee.
So everybody is in favour of June 8? OK.
The other thing is, the
Ombudsman is planning to table his annual report on the morning
of June 15. His assistant has called to ask if Mr Lewis could be
scheduled at the afternoon meeting of the committee to discuss
that report, which will be on June 15. Is the committee in favour
of that?
Ms
Churley: When would the committee be meeting to discuss
that?
The Chair:
On the 15th, the same day, at 3:30. Is everybody happy with that?
OK. Thank you very much. The meeting is adjourned.
