Tuesday 16 February 1993

Insurance Statute Law Amendment Act, 1993, Bill 164


*Chair / Président: Hansen, Ron (Lincoln ND)

*Acting Chair / Présidente suppléante: Haeck, Christel (St Catharines-Brock ND)

Vice-Chair / Vice-Président: Sutherland, Kimble (Oxford ND)

Caplan, Elinor (Oriole L)

Carr, Gary (Oakville South/-Sud PC)

Christopherson, David (Hamilton Centre ND)

Jamison, Norm (Norfolk ND)

*Kwinter, Monte (Wilson Heights L)

Phillips, Gerry (Scarborough-Agincourt L)

Sterling, Norman W. (Carleton PC)

Ward, Brad (Brantford ND)

Wiseman, Jim (Durham West/-Ouest ND)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Dadamo, George (Windsor-Sandwich ND) for Mr Wiseman

Daigeler, Hans (Nepean L) for Mr Phillips

Haeck, Christel (St Catharines-Brock ND) for Ms Ward

Harnick, Charles (Willowdale PC) for Mr Sterling

Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND) for Mr Christopherson

Klopp, Paul (Huron ND) for Mr Jamison

Mancini, Remo (Essex South/-Sud L) for Mrs Caplan

Mathyssen, Irene (Middlesex ND) for Mr Ward

Owens, Stephen (Scarborough Centre ND) for Mr Sutherland

Tilson, David (Dufferin-Peel PC) for Mr Carr

Winninger, David (London South/-Sud ND) for Mr Wiseman

Also taking part / Autres participants et participantes:

Owens, Stephen, parliamentary assistant to the minister responsible for automobile insurance review

Simons, Craig, legal counsel, automobile insurance review, Management Board of Cabinet

Clerk pro tem / Greffier par intérim: Carrozza, Franco

Staff / Personnel: Beecroft, Doug, legislative counsel

The committee met at 1007 in committee room 1.


Consideration of Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters / Loi modifiant la Loi sur les assurances et certaines autres lois en ce qui concerne l'assurance-automobile et d'autres questions d'assurance.

The Chair (Mr Ron Hansen): Good morning. It's day two of clause-by-clause of Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters. Where we finished yesterday was comments on part I, section 1. Are there any further comments?

Mr Remo Mancini (Essex South): I just want to be clear what we're doing here. The technical staff here, all the technical staff that the parliamentary assistant referred to yesterday, are they here to help us out?

Mr Stephen Owens (Scarborough Centre): Yes, sir, they're here and ready to go.

Mr Mancini: Before I make my comments, I feel I need this information. I want to ask for the logic and the reasoning behind why it was necessary to strike out the words "`no-fault benefits' and `no-fault benefit' wherever those expressions occur and substituting in each case `statutory accident benefits.'" I want to know the thinking that took place for these changes to be proposed. Who can answer that question for me?

The Chair: Will you identify yourself too, please.

Mr Craig Simons: My name is Craig Simons and I'm a counsel for the auto insurance review.

Mr Mancini: And you work with the Ministry of Consumer and Commercial Relations?

Mr Simons: I'm a lawyer hired by the Attorney General and I'm seconded out actually to the insurance commission, but I've been helping out with the insurance review as it's been going along.

Mr Mancini: I just want to make sure I understand whom the gentleman is reporting to. So it's a group outside the ministry and outside the Ontario Insurance Commission? It's like a working group? Is that what it is?

Mr Simons: The auto insurance review?

Mr Mancini: Yes. Is that what it is?

Mr Simons: It's a group that's been responsible for this legislation.

Mr Mancini: And that's outside the Ontario Insurance Commission. It's like a working group and there's a team of you that's been put together to draft this bill. Is that it?

Mr David Tilson (Dufferin-Peel): Mr Chairman, on a point of order: I don't want to interrupt Mr Mancini; it's just that I'm not clear who this person is. Is he a member of the ministry? Who is he?

Mr Owens: I was going to suggest that in order to take some of the mystery out of these proceedings, the ministry staff come forward and --

Mr Tilson: No. I don't want to interrupt Mr Mancini. He started to ask this gentleman some questions and I need to know who he is. I don't know who he is.

Mr Owens: He was in the process of identifying himself when you raised your point.

Mr Tilson: That's right. He did identify himself and he said where he was from, and I didn't understand all that. I'd just like that clarified.

Mr Owens: What point didn't you understand?

Mr Tilson: It appears that he's not with the Ministry of Financial Institutions, as it then was, and I'd just like to know in what capacity he is here.

Mr Simons: I'll try to demystify that for you. I'm a lawyer, and all lawyers in the Ontario government generally are hired by the Attorney General and seconded out to the various agencies and ministries. My home base is the insurance commission, but from time to time I've been asked to assist down at the auto insurance review and I've provided them with legal services.

Mr Mancini: Okay. Now this auto --

Mr Tilson: Excuse me. So you're with the Ontario Insurance Commission. Is that who you're with?

Mr Simons: That's one of my clients, but from time to time another one of my clients has been the auto insurance review.

Mr Tilson: Are you an independent -- I'm sorry, Mr Mancini. I'm just trying to clarify --

Mr Mancini: Those are all of the questions I've been asking, Mr Tilson.

Mr Tilson: Well, not quite, Mr Mancini, because it hasn't been clarified exactly who his boss is. Is he an independent lawyer or who is he?

Mr Simons: I am a public servant. In terms of the auto insurance review, my boss would be the deputy minister.

Mr Tilson: Okay, thank you. Sorry, Mr Mancini.

Mr Mancini: That's okay, Mr Tilson. This auto insurance review -- just so that members can understand the process; I think the process is important as well as the outcome -- who would be involved on that auto insurance review? You mentioned to us that you reported to the deputy minister. Would I be correct in saying yourself and people from Financial Institutions and the insurance commission -- you had a team taken from those areas to do this, is that --

Mr Simons: Essentially, that's what happened.

Mr Mancini: How big is that team?

Mr Simons: Good question. It's not a very big team.

Mr Mancini: Approximately.

Mr Simons: There are probably no more than 20 people there.

Mr Mancini: Do you have your own offices?

Mr Simons: There are offices, yes. We're at 10 Wellesley Street East.

Mr Mancini: Okay. Why do the words "statutory accident benefits" replace "no-fault benefits"? What prompted the team to come to this conclusion?

Mr Simons: I think the main reason is that "statutory accident benefits" is a more accurate description of the nature of the benefits which are paid when you have an accident. The word "statutory" indicates they're mandated by legislation, whereas "no-fault benefits" really refer to contractual-like benefits because, in the past, no-fault benefits were part of your contract.

Mr Mancini: Thank you. That's the answer I was looking for, and the committee members, I hope, paid attention to that answer, because the gentleman is correct. The statutory accident benefits are a schedule of benefits, Mr Chair, mandated in the legislation, meaning that the no-fault benefits that might have been available to others in the past are no longer available.

Mr George Dadamo (Windsor-Sandwich): For a change.

Mr Mancini: I raise that -- and I know the member for Windsor-Sandwich would be interested in knowing -- because it is my belief and, I think, the belief of a number of members of this committee and certainly the belief of many of the people who made presentations to us, that the loss of the right to sue for economic loss is far greater and far more important than the statutory accident benefits that are part of the schedule of this legislation. That's the point I want to make this morning, Mr Chair.

I want to ask the members, rhetorically at least, if they remember the presentations made to us by innumerable litigation lawyers. Do the government members recall any of the briefs that were made to us with regard to taking away the right to sue for economic loss? None of them has talked about it; none of them seems to think it's very important. Not only do these concerns follow us every day of our public hearings, but they continue to follow us -- I found them -- by the briefs that have been submitted to the clerk since the conclusion of our public hearings and ability to take public testimony.

I refer the committee specifically to the briefs given to us by the clerk yesterday, and I've got them all in order here. I refer the committee to a letter dated February 11, 1993, from the Waterloo-Wellington Head Injury Association. This association was unable to make a verbal presentation to the committee and turned in this short, written presentation to the clerk for the committee's behalf. It's signed by Dan William Burnett, secretary, and as I said, he represents the Waterloo-Wellington Head Injury Association, dated February 11, 1993, specifically referring to the organization's inability to accept the government's statutory accident benefits in lieu of no-fault benefits which existed under Bill 64. Let me tell you what they had to say, because I think this goes to the heart of the legislation, and I'm hoping the government members will have time to review the gentleman's documentation. It reads:

"Clearly Bill 164 favours a guaranteed income, to the possible detriment of the individual's loss of opportunity and economic freedom. We believe real lives are tragically damaged by not being able to strive to their potential."

The letter further goes on to state, Mr Chair, and I know that you've read the letter, but I want to make sure that everyone else has:

"There is not a broad government-sponsored network of specialized rehabilitation services to deal with brain-injured persons' re-entry into the workforce. This means in many communities these individuals must pay for services privately. Bill 164" -- and this is the important point the gentleman is making -- "effectively cuts off funding for those services by failing to allow for the recovery of economic loss."

That is one letter. It goes on to give more information, but I don't want to take the committee's time reading further, because I think the gentleman made his point in that particular letter.

I bring to the committee's attention documentation submitted to the clerk dated February 10, 1993, signed by John A. Soule, if I'm saying it correctly, of the Advocates' Society. This documentation, given to the clerk because the gentleman was unable to make a verbal presentation because we were not allotted enough time to hear from the general public -- this gentleman goes on to say on page 2 of his brief --

The Chair: Mr Mancini, the clerk just notified me that he presented before the committee.

Mr Mancini: Oh, he did? I don't recall John A. Soule.

Clerk Pro Tem (Mr Franco Carrozza): The Advocates' Society appeared.

Mr Mancini: The Advocates' Society? Did Mr Soule appear?

Clerk Pro Tem: Not him, but --

Mr Mancini: Thank you. Mr Soule did not appear. I was correct in my --

Mr Charles Harnick (Willowdale): He did appear, John Soule.

Mr Mancini: Pardon? He appeared?

The Chair: He did appear. I remember the name.

Mr Harnick: It was a good brief.

Mr Mancini: Anyway, it was a good brief, as my colleague says.

Mr Harnick: A very good brief, something that the government members should re-read.

Mr Mancini: Mr Soule submits to the committee a further brief dated February 10, 1993. If we look to page 2 of Mr Soule's brief, it states:

"Of most concern to the society is the fact that Bill 164 removes from all innocent victims the ability to recover their actual economic loss over and above the benefits provided in the statutory accident benefits schedule." It goes right to the heart of section 1.

He further states: "In our submissions of January 26, 1993, the society pointed out the devastating effect this legislation would have upon significant groups of our population, including children, students, small business persons, self-employed, care givers, dependants of deceased breadwinner and those earning in excess of $1,000 per week."

That's a lot of groups: children, students, small business persons, self-employed. Those are millions of Ontarians who are going to be adversely affected by this legislation when you substitute statutory accident benefits in place of no-fault benefits.


The gentleman further goes on to state, "Our concerns included the level of benefits available to certain groups, particularly children and the family of a deceased."

I say to the government members, who could be more vulnerable than children and the family of a deceased? Who could be more vulnerable? That is why your legislation, I say to the government members, has been so highly criticized all across this province.

The gentleman further states in his brief presented to the clerk for our review, "The level of benefits payable to these two groups may well result in financial ruin to the family."

We heard other testimony by groups and individuals who came before our committee who stated time and again that the substituting of statutory benefits in place of no-fault benefits, accompanied by the loss of the right to sue for economic loss, will keep young people at or below the poverty line their entire lives if they are catastrophically injured in an automobile accident; and that families who lose the main breadwinner, whoever he or she may be, the families left behind -- and it was shown to us by Nigel Gilby from London and other litigation lawyers across the province -- the families of the deceased, will pay several hundreds of thousands of dollars in lost benefits for the privilege of having Bill 164 become law.

The Advocates' Society further goes on to state, and I quote again, "No other common-law jurisdiction in Canada nor any of the United States of America adopts such a harsh and cruel position on economic loss."

Mr Harnick: That's true. You're distinguishing yourselves.

Mr Mancini: This government is doing a great job in distinguishing itself.


The Chair: Order. Mr Mancini has the floor.

Mr Owens: Don't mislead the witnesses here.

Mr Mancini: There are no witnesses here, Mr Parliamentary Assistant.

Mr Owens: Are you suggesting that people watching this are --

Mr Mancini: There are no witnesses here.

The Chair: Mr Owens.

Mr Harnick: There's nobody watching this. You wouldn't let it go on television.

The Chair: Order.

Mr Harnick: You shut that down.

The Chair: Order. Mr Mancini, you have the floor. Ignore those comments. They're not in Hansard.

Mr Harnick: You're the king of the muzzlers. You muzzle us, you muzzle your own people.

Mr Mancini: Mr Chair, the reason there are no witnesses here today -- do you remember Mr Sal Valela, who came in yesterday?

The Chair: Yes, I remember him.

Mr Mancini: He is a disabled person due to an automobile accident and he came before the committee yesterday. He visited my offices, he visited Mr Harnick, he discussed here in the committee with members of the government the difficulty he had because of his disability in driving from his home to these hearings. He begged all of us to return to room 151 so that he and thousands of other people like himself could continue to be apprised of the progress of this legislation.

When the parliamentary assistant says that there are witnesses, it's not true; there are no witnesses. The only people who can watch us today are the government bureaucrats who are here taking their marching orders from their political masters, a few political staff, the odd -- or I should say, one or two people --

Mr Owens: The odd. Yes, come on.

Mr Mancini: Is there a problem with you today?

Mr Owens: No, I think the problem's with you.

The Chair: Mr Mancini, ignore the parliamentary assistant.

Mr Tilson: No, Mr Chairman, you should tell him to be quiet. You don't ignore heckling.

Mr Mancini: Especially from the government.

Mr Tilson: He's obviously having a great deal of difficulty making his presentation with Mr Owens continually interrupting.

Mr Paul Klopp (Huron): He's doing a fine job.

Mr Tilson: I'm having a lot of trouble hearing Mr Mancini. I'd like to hear what he has to say.

The Chair: Mr Mancini, you've got the floor. Continue on.

Mr Mancini: Thank you. We had a couple of people from the automobile insurance industry here, and it is patently unfair and not true for anyone on this committee to say that there are witnesses here today, because they're not here. They are not here. The witnesses are not here.

Mr Owens: What's your point?

The Chair: Mr Owens.

Mr Mancini: My point? My point is very clear.

The Chair: Mr Mancini, talk through the Chair here, please.

Mr Mancini: Mr Chair, my point is very clear. I'm going through the written submissions as they deal with section 1, to put these items on the record in the hope that some of the public might be able, if they wish -- it's going to be difficult for them -- at least be able to read some of the things that took place in this committee hearing, because the government members, over your objections on many occasions, Mr Chair, and certainly over the objections of the members of the opposition and many members of the public, have tried to shut down this committee from day one.

Mr Owens: That's a crock.

The Chair: Mr Owens.

Mr Mancini: And even over your objections.

Mr Owens: On a point of order, Mr Chair: The critic for the Liberal Party has accused the government of trying to shut down these hearings.

Mr Mancini: That's right. Yes.

Mr Owens: I would like to ask the member to demonstrate clearly through Hansard where the government has attempted to shut down these hearings, and when he cannot, I would suggest that he withdraw those comments. Put up or shut up.

The Chair: Mr Mancini, now maybe you can give your background.

Mr Mancini: Mr Chair, through you --

Mr Tilson: I'd like to speak to that.

Mr Mancini: Mr Chair, through you: What a stupid thing for the parliamentary assistant to say.

Mr Owens: Put up or shut up.

The Chair: Mr Owens, we don't use that type of language in here.

Mr Owens: Oh, please. He can call me stupid --

The Chair: No. I'm sorry. No, no.

Mr Mancini: I didn't call you stupid. I said what you said was silly.

The Chair: I think you should retract that, Mr Owens.

Mr Mancini: I don't care if he retracts it or not, Mr Chair. It doesn't offend me. Mr Chair, myself, Mr Tilson, Mr Harnick and you, the clerk, we've all attended meetings, haven't we? We certainly have, and hasn't it been our position from day one that we have our hearings in room 151 every single day that we in fact had public hearings?

That's been our position, that's been very clear and if it wasn't for your intervention -- and we know you were politically scolded for this, Mr Chair. It was obvious that if it wasn't for your political intervention, the one afternoon that you took it upon yourself to move this committee from committee room 1 or 2 -- I can't recall where we were at --

The Chair: We were in 1.

Mr Mancini: -- to go to 151, we would not have been aired on TV for the citizenry of Ontario to in fact see the proceedings of this committee. That's only one example.

The Chair: Mr Mancini, at that particular time the room wasn't being used and I thought it would be better for us to be down there and to be occupying it.

Mr Mancini: Mr Chair, you've made many good decisions and we know --

The Chair: Okay. Mr Owens.

Mr Tilson: Mr Chair --

The Chair: I'm sorry. I should go to Mr Tilson next because he had his hand up for a point of order.

Mr Tilson: That's right. The issue is with respect to shutting down the proceedings, Mr Chairman. I will say that Mr Mancini is perfectly correct that we have endeavoured on two issues, and the first is to make these proceedings more public. We have met resistance from the government members of this committee, particularly Mr Owens, to meeting in room 151, in fact the one day when the room was empty.

Mr Mancini: That's right.

Mr Tilson: If it hadn't been through your intervention -- and I will say to all members of the opposition that your status as a Chairman increased tremendously that day, because obviously there was resistance and it was such an obvious move that we should go to that committee room. It was empty, it was not being used and the government members continued to fight us to have those meetings made more public. We met resistance after resistance with respect to the meeting in room 151.

It was my understanding from day one, Mr Chairman, that the members of a subcommittee who are now discussing OTAB have agreed several times that --

Mr Owens: Oh, that's bullshit.

The Chair: Mr Owens.

Mr Tilson: I'm sorry? What did you say?

The Chair: You have to withdraw that.

Mr Owens: Withdraw.


Mr Tilson: There's no question, Mr Chairman, that the subcommittee that was meeting with OTAB had agreed that this committee should meet in 151. They felt that it would be more appropriate that these proceedings should be conducted in that particular room.

Mr Chairman, the second issue I would like to speak on is this matter of the suggestions that the government is trying to shut down the proceedings. Mr Mancini is quite right in making those allegations, because the second matter has been that I am simply not prepared to proceed with the clause-by-clause discussions.

It's been most difficult for us to meet. Obviously there was an unfortunate incident with the passing of a member of this House and one of the days was cancelled, and that was beyond everyone's control. That obviously has caused some problems with the committee hearing and that's been unfortunate.

However, because of that rescheduling, we have been unable to properly prepare for these clause-by-clause discussions. The government amendments only came to my office late in the day on Friday. There's been very little time for us to meet with members of the Progressive Conservative caucus, and I'm sure Mr Mancini has had the same difficulty meeting with the Liberal caucus, to review the amendments that have been proposed by the government and to adequately prepare to agree or not to agree or to make further amendments. We've had simply inadequate time.

So, Mr Chairman, I will say that I think it would be more appropriate that these proceedings be delayed. We want to continue with the debate of this bill, but I think the way the government is trying to ram this down the throats of the people of this province is simply outrageous.

The Chair: I would say, Mr Tilson, that this was decided by the House leaders before we even started meeting. I have to say that the one day, the passing of one of the members of this committee delayed the report coming out from the researcher. I guess you could say that actually lost four days there, because we weren't done on a Thursday but on that following Tuesday until the completed report.

That is unfortunate, but I think we're following the direction of our House leaders on where we're meeting. We were scheduled in here. As I say, on two days, it was supposed to be a Tuesday and a Thursday that we were to meet in 151. It wound up Wednesday and Thursday and then the one Tuesday afternoon since the room wasn't being used.

But maybe one of the comments that Sal, the one witness who appeared before the committee on a Thursday night, has a hard time getting down to the hearings here and it would be better to watch it on TV, as I mentioned yesterday, there are a lot of people who are looking at OTAB who are in the same situation who are looking at getting back to employment, which could be favourable to Sal also.

Mr Tilson: Mr Chairman, I can only say that both Mr Mancini and I are looking at it from the same perspective. You, as Chair, with all due respect, have given us the impression that you simply are not even prepared to consider the subject of meeting in room 151. We had to fight even to have a subcommittee meeting on that topic, and there was very little discussion at that time.

The Chair: Mr Tilson, I thought we had that decided already at the subcommittee meeting.

Mr Tilson: Well, no, Mr Chairman, there was no agreement at the subcommittee meeting; it was the same type of decree that was given by you at the committee meeting proper and at the subcommittee meeting. It was simply a decree by you.

Mr Mancini is quite right. He's most annoyed, as am I. Both the Liberal and Conservative parties are most annoyed, particularly at the fact that it is my understanding, speaking to members of my caucus who are members of the subcommittee meeting that is discussing OTAB, that my caucus is prepared to give up that room so that this --

The Chair: Unanimously? All three?

Mr Tilson: My understanding was that there was to be a subcommittee meeting of that committee yesterday and that this topic was going to be discussed with respect to giving up room 151 so that this committee, the committee discussing auto insurance, could continue meeting in room 151, and that's why Mr Mancini and I are expressing the frustration that we are. It's simply been a decree on your part. You've made no effort. I am being critical of you, Mr Chair, because you've made no effort to meet with the Chair of that committee to see what arrangements could be made with respect to switching rooms.

The Chair: If you remember, last time we were out in the hallway for a period of time with a misunderstanding with that particular Chair.

Mr Owens: It's my --

Mr Tilson: I had spoken to Mr Kormos. Mr Kormos indicated --

The Chair: Mr Tilson, let Mr Owens have the floor for a minute.

Mr Owens: I don't want to confuse the opposition members with facts, but there were accusations made with respect to the government trying to cancel these hearings, Mr Chair. I don't know about you, but I haven't heard any evidence that in fact hearings were cancelled. I would suggest that if members of the opposition would like to read over their daily schedules and check the Hansard, they will see that we have met on a daily basis for the time prescribed. The Chair has been quite -- I hate to use the word -- liberal in terms of his application of the rules. I would suggest that the opposition is clearly wrong, as it is on many things.

In terms of Mr Tilson's assertion that there was an agreement with the OTAB subcommittee, I can strenuously tell you there was no agreement with the OTAB subcommittee. If you would like -- we're going to spend the rest of the day here ranting and raving about this stuff -- we'll march the OTAB subcommittee in here and see where in fact the agreement did lie.

Mr Tilson: I'm in agreement with that. I'm sure Mr Mancini would be in agreement with that.

Mr Owens: I can assure you there was no meeting of the subcommittee. Where you're getting the facts you're relying on, I leave that for you to tell the committee.

In terms of the government amendments being delivered to your office at 5 o'clock, sir, if you recall the discussion we had here on the last day of committee, in fact the change of the day was made at the request of Mr Mancini. The government agreed we would change the date, I believe from the 5th to the 9th, at 5 pm, and we were certainly carrying out the agreement as we saw it.

As you're aware, Mr Tilson, I had asked yourself and other members of the opposition earlier in the proceedings whether we were going to share amendments, as is the custom. While there is certainly not a standing order, there is a tradition of honour and respect among members that we share amendments.

As I indicated to you yesterday, sir, there may be amendments your party is interested in putting forward that we would find quite reasonable, and would want to give you the credit for moving those amendments. You have not given us that opportunity, other than two amendments that you floated forward yesterday. So in terms of your assertion that we are trying to ram anything down your throat or hide anything from you, that is clearly inaccurate.

Again, in terms of the assertion that this government is trying to cancel hearings or jackboot these hearings, I would suggest that the members who have made those accusations withdraw those comments.

The Chair: I think Mr Tilson would like to reply to the parliamentary assistant. Is that correct? I cut you off and went to Mr Owens.

Mr Mancini: Is this the same point of order?

The Chair: Yes.

Mr Tilson: What do you want me to do, Mr Chairman?

The Chair: I thought you wanted the floor again. I cut you off.

Mr Klopp: Mr Chair, I really want to hear Remo, who started off this committee today -- you started yesterday -- talk about clause-by-clause. All this is great, wonderful time wasted. I want to hear Remo talk about section 1, explain his positions, then we'll move on to the second section, and Mr Tilson and Mr Owens can go outside and have a great time all afternoon. Let's get back to the business at hand.

The Chair: Okay, Mr Mancini. Great, Mr Klopp.

Mr Mancini: Up until a few moments ago, I was just building a case based on the testimony we heard from witnesses as to why we object to the words "no-fault benefits" being struck out and the words "statutory accident benefits" being substituted therefor. I referred to a number of written briefs that we've received since the conclusion of the public hearings. I brought approximately 80% to 90% of the briefs that were presented to us to the committee hearings today so that we could look through them and refresh our memories, so that we could hear and understand again what the witnesses had told us and how strongly the witnesses felt about certain sections of this bill.


I refer the committee to the presentation that was made to us by the Brantford and District Head Injury Association. I refer the committee specifically to page 1, the bottom paragraph, where the individual making the presentation stated: "Let me elaborate. If you are a student under Bill 164, the simple message is don't drive a car. An example is a 24-year-old, female student in education in her final year, studying to be a teacher at an Ontario university."

This is a very common occurrence. This is not something that's rare in our society, unfortunately.

"She is severely injured in an auto accident and sustains a traumatic brain injury impairing her speech, short-term memory and other cognitive functions, these rendering her permanently unemployable. However, she still has bills to pay. She is living in an apartment for which she has signed a nine-month lease and she has other numerous expenses to pay. The maximum she is entitled to is $4,000 plus $185 a week disability benefit. If she was living outside of Toronto, this would be difficult. In a large metropolitan area, such as Toronto, this is going to be almost impossible. At this point, she will be disabled for life without the right to sue for future economic loss. Her career prospects are ruined."

The brief further states, "Then there is the removal of the right to sue for present and future economic loss." I want the government members to know I'm quoting what the Brantford and District Head Injury Association had to say. "This is without a doubt the most draconian measure one can imagine." Draconian, the most that one can imagine. You're permanently relegating that person to poverty status for the rest of her life.

Let's look at another case as to why I don't like substituting the words "statutory accident benefits" in lieu of "no-fault benefits." Nigel Gilby, a lawyer from the London area, made a presentation to this committee. He also mentioned to the committee, and you'll recall, Mr Chairman, that he told us, that he had worked for and supported the New Democratic Party in the last provincial election, but that he certainly wasn't going to do so again because you men and women broke all your promises with regard to giving people the opportunity to sue for their economic and non-pecuniary losses.

He brought to us real life examples of what happens to families when the breadwinner, man or woman, in the family becomes a fatality in an automobile accident. He gave to us statistical information which compares the Ontario motorist protection plan to the government's Bill 164.

This was your friend, Nigel Gilby, who prepared this. It wasn't a Liberal research bureau. It wasn't Monte Kwinter, a Liberal MPP, or Remo Mancini, a Liberal MPP, or Mr Tilson, a Conservative MPP. It was your friend and supporter Nigel Gilby, and this is what he had to say regarding a comparison of OMPP benefits to Bill 164 for fatal injury of a married male, age 30 with a gross income of $25,000. A gross income of $25,000 is not a large income. That's about $8, $10 or $11 an hour maybe in some small plant somewhere in Ontario; hardworking people trying to survive and pay their bills on $25,000 a year.

Let me give the full illustration. Mr Gilby goes on to note for the committee that this male has a child dependent aged two and a female child dependent aged four. He states for us that under the Ontario motorist protection plan the family of the deceased would receive $411,000. The dependent children would receive approximately $23,000, for a grand total of just over $435,000 for losing a loved one, for losing the breadwinner. They'd get $435,000. Under Bill 164, your great piece of legislation, the surviving spouse would receive approximately $73,000 and the children $20,000, for a grand total of $93,000. It's going to cost this family, this modest-income family, $350,000 in benefits that it needs to live, under Bill 164.

Now you want the opposition to be happy about that; you want the consumers of Ontario to be happy about that; you want the surviving dependents of this family to be happy about that. Well, we're not and we're not going to be happy, and that's why we cannot accept a striking out of the words "no-fault benefits." We're not going to accept that, never.

Illustration number two: The reason I'm dwelling on this so much is that the government has not prepared a single amendment to deal with this, not a single one. They weren't listening when the people came before the committee. They ignored Nigel Gilby and the head injury association and everyone else who begged for the right to sue for economic loss to be returned to them.

The Chair: Mr Mancini, could I just ask one question there on that?

Mr Mancini: Yes, sir.

The Chair: That $400,000-odd, is that part of the right to sue or is that a guaranteed payment?

Mr Mancini: It's part of the presentation made by Mr Nigel Gilby.

The Chair: Just a clarification, so I'm clear on it.

Mr Mancini: Yes.

The Chair: It's not written that you get $400,000 through --

Mr Mancini: Mr Chairman, there is case law and you could reasonably expect your family, sir, to receive these benefits if you were in these circumstances and had the unfortunate circumstance to be killed in an automobile accident.

The Chair: But we couldn't look in the book and that would be the payment out. That would be --

Mr Mancini: You might get --

Mr Tilson: He's referring to OMPP. He's referring to what you receive under OMPP as opposed to Bill 164.

The Chair: That's what I'm saying.

Mr Tilson: He's showing the terrible loss that people are receiving from OMPP to 164. That's what he's talking about.

Mr Mancini: Mr Chairman, I don't need this interrogation from you.

The Chair: Oh, no. I'm just asking because I haven't got the briefing notes.

Mr Mancini: Nigel Gilby was before us --

Mr Owens: What if you play innocent?

Mr Mancini: Nigel Gilby was before us -- I know the parliamentary assistant doesn't like this.

The Chair: Okay.

Mr Mancini: I have a right to make my points with regard to section 1 of the bill --

The Chair: No, I wasn't -- I was just asking for some clarification.

Ms Christel Haeck (St Catharines-Brock): Point of order, Mr Chair.

Mr Mancini: There's nothing out of order.

The Chair: Ms Haeck.

Ms Haeck: Thank you, Mr Chair. I know the Chair probably has some interesting points to make, but at the same time there were some members on this side who were questioning whether or not the Chair is in the position of asking questions and therefore --

Mr Mancini: Yes, he is.

Ms Haeck: I understand that Mr Mancini does that in public accounts, but the --

The Chair: I haven't got the briefing notes in front of me, so I was just asking the question, if that was a written figure.


Mr Mancini: I don't ask questions of the members; I ask questions of the witnesses, I want to tell Ms Haeck, in order to get information from the witnesses, when I'm Chair of public accounts.

The Chair: Mr Mancini, you explained that on OMPP and 164; I'm clear on that now.

Mr Mancini: I want to continue on because the record has to show what has been presented to this committee and what presenters, witnesses, have asked the government to do and what the government is failing to do.

Let's look at illustration 2 as submitted to the committee by Mr Nigel Gilby, partner, Lerner and Associates of London, Ontario. He continues with his comparison of the Ontario motorist protection plan benefits compared to Bill 164. We're continuing in the comparison, using the unfortunate circumstances of a fatal injury when people's families are most in need. We are now looking at a married male, aged 40, with a gross income of around $50,000, with a non-working spouse, aged 40, male dependant child, aged 10, and female dependant child, aged 12. I don't know about the government members, but I know a lot of families like that in my constituency, where there's one breadwinner, the other spouse is not working for whatever reasons, the personal choice has been made, and there are two children at home to educate, to save money so that they can go to university, to allow them a few benefits in this life, and to prepare for their future, and that's why the benefits paid to a breadwinner who was fatally injured are so crucial.

Under the illustration given to us by Mr Gilby, under the Ontario motorist protection plan, the plan that you people didn't like two or three years ago, the spouse would receive $598,000 and the dependant children would receive $25,000, for a grand total of $623,000. Under your great bill, under your great piece of legislation, the spouse would receive just under $130,000, the dependant children would receive $20,000 and the total is just under $150,000.

This family will lose $480,000 for the privilege of having Bill 164 passed into law. That means that this family has approximately three years' worth of income to take the place of the breadwinner. I don't know how your mathematics add up, and there was no one on this committee who was able to prove Mr Gilby wrong when he made these presentations, not a single one of you, no one was able to prove that he was incorrect, but I certainly would want my family to receive the $623,000 instead of the $149,000.

I'm assuming that all of you have constituents who fit this model, with two dependant children at home, a non-working spouse, and I would hope that you would want those families, if they were in this unfortunate position, to receive the $623,000 instead of the $149,000.

Yesterday my colleague Mr Harnick said that he didn't object to the interjections. I don't object to the interjections either, but Mr Harnick also said that what he really objected to was interjections mumbled under somebody's breath so that we couldn't quite make out what they were saying but we knew that they weren't agreeing with us. I say to the parliamentary assistant, if he has something to say, he should speak out.

The Acting Chair (Ms Christel Haeck): Just let me make a comment first. Mr Mancini, I appreciate your comments and your concerns as one of those that Mr Harnick was referring to yesterday. My comment to you would be, and it's one that in fact one of your members, the member for Oriole, uses regularly: Don't tease the bears.

Mr Mancini: I'm not teasing the bears.

The Acting Chair: There are a number of comments that have crossed the floor today and yesterday which definitely border on inflammatory, inciteful, so I would suggest, Mr Mancini, that if you would like a bit of your own medicine back, that's obviously easy to do and there are members who are quite prepared to comply. There are many of us who would like to have an orderly committee hearing and move along. I would suggest that you keep your comments on point, and I'm quite sure the rest of us will also thereby comply. I will now turn the floor over to Mr Owens, who had a point of clarification to make, and then the floor will return to you.

Mr Owens: I'll return the floor to Mr Mancini in the interest of moving this process along.

Mr Mancini: Thank you for that unsolicited lecture. That serves absolutely no purpose other than to show your bias, Madam Chair.

The Acting Chair: If you would not like to see this turn into an even more difficult day, I would suggest, Mr Mancini, that you would keep your comments on point. If you would like to find yourself in more difficult problems --

Mr Mancini: Madam Chair, you're not scaring anyone with your unsolicited -- you're not scaring anyone. You're not bothering anyone with that silly show that you're putting on for a few government bureaucrats.

The Acting Chair: Mr Mancini, you are absolutely out of order.

Mr Mancini: And you're absolutely out of order yourself. You have no idea what you're doing.

The Acting Chair: No, Mr Mancini. You are out of order.

Mr Mancini: Thank you very much.

The Acting Chair: I would take it that now is the time for you to continue quietly.

Mr Mancini: Madam Chair, you can take your advice and review it, because you might embarrass yourself if you continue on in this manner.

The Acting Chair: No, Mr Mancini, I would suggest that I am quite aware of what even your responsibilities are as a member, so continue, please.

Mr Mancini: I wasn't mumbling under my breath, Madam Chair. It was the parliamentary assistant.

The Acting Chair: Mr Mancini, address your comments to the Chair and continue.

Mr Mancini: I am addressing them to you, and I told you that it was not I who was mumbling under my breath; it was the parliamentary assistant.

The Acting Chair: I would suggest that you continue quietly.

Mr Owens: Grow up.

Mr Mancini: You can sit in the chair and pretend that you know what you're doing, but it's obvious what the real facts are.

The Acting Chair: Mr Mancini, if you wish to insult me, I will try to ignore it.

Mr Mancini: After that lecture you gave me, I think you're getting everything you deserve.

Mr Tilson: Here comes the real Chairman.

Mr Mancini: If you think you can sit in that chair and make the comments that you made, you have another think coming.

The Acting Chair: Excuse me, Mr Mancini?

Mr Mancini: I said if you think you can sit in that chair and make the comments that you've made, you have another think coming.

The Acting Chair: I think you owe me an apology.

Mr Mancini: When I finish making my presentation --

The Acting Chair: Mr Mancini, you owe me an apology.

Mr Mancini: -- if all of the bears that are here that have been teased can reply to what Mr Gilby has presented to the committee, I'd be very happy to listen.

The Acting Chair: Mr Mancini, I would suggest that you remember we're all honourable members and that you in fact owe me an apology.

Mr Mancini: Yes, and I would suggest that you read the standing orders and read some old Hansards so you know what to do when you're in the chair. That's what I would suggest.

The Chair: Mr Mancini, carry on.

Mr Tilson: Welcome back, Mr Chairman.

Mr Mancini: This all started because we had a lot of mumbling interjections.

The Chair: I was on the phone and watching. It was quiet there for a period of time.

Mr Mancini: I think Mr Gilby made the point very clearly. He came before the committee as a friend of the New Democratic Party who had actually worked for the New Democratic Party in the last election. He came before the committee not as a friend of the Liberals or as an acquaintance of the Liberals. He was very clear. He had prepared his brief. He condemned the government for taking away the benefits that surviving family members would be receiving under Bill 164, as compared to Bill 68.

The Chair: What you're telling this committee --

Mr Mancini: You know, Mr Chair, if you think we're annoyed about this, yes, we are annoyed about it. We're annoyed that working families earning from $25,000 to $50,000 a year -- God forbid if they lose a spouse, if they lose the main breadwinner because of an automobile accident. That family is financially ruined under Bill 164. That's why Mr Gilby was so passionate.


The Chair: You say he was an independent witness, then, who had no vested interest in any one of the three parties?

Mr Mancini: Mr Gilby came to the committee, Mr Chair, and stated that, based on promises made by the New Democratic Party in the 1990 election, he opted to consider supporting them and did because he felt that the promises that were made would provide the best automobile insurance possible. That's basically what he told us. He said you've reneged on all those promises and in fact Bill 164 is harmful, as he pointed out to the committee, to working families who lose the breadwinner. We're upset about that because we represent thousands and thousands of families in each individual constituency, and automobile accidents occur -- we would wish that they wouldn't -- and fatalities occur. We would pray that they don't, but they do occur and when they do occur we don't think the surviving families, no matter how clever the government is in preparing Bill 164, should be placed in poverty status, on top of having to deal with the loss of the breadwinner and a loved one. That's why we're upset.

The Chair: Carry on, Mr Mancini.

Mr Mancini: Thank you. I'd like to ask the staff in regard to these statutory accident benefits that were in fact substituted for no-fault benefits, when you were drafting this legislation and concluded that these were the appropriate and correct words, whether or not you had taken into consideration many of the things that we have heard during these public hearings.

Mr Simons: What you're asking me is whether or not, in making this very technical amendment, which basically just changes words to make it clear that these are benefits mandated by statute and no longer contractual, we did what?

Mr Mancini: That you took into consideration all of these things. I'm told that you had a consultation process. Was there a consultation process?

Mr Simons: As far as I'm aware, yes, there was.

The Chair: Mr Owens, a point of order.

Mr Owens: No, it's not a point of order. In terms of the member's question, it's been clearly stated that the draft regulation is in fact just that, a draft, and that input made by those who made presentations to this committee will be considered in terms of where we go on future, if any, amendments to that draft regulation.

Mr Tilson: Then why do we have these hearings if you're telling me these aren't going to be the regulations? Are you telling us there's going to be another set of regulations?

Mr Owens: In case you're wondering why you're here, we were mandated by the House after second reading, as per the standing orders, to review Bill 164, not the regulation. That's why you're here, that's why you've been sitting here for the last three weeks.

Mr Tilson: Mr Chairman, through you to the parliamentary assistant, what I find simply astounding at this particular point in time is that the parliamentary assistant is saying that almost every last one of the people of this province who came to this committee to make presentations, express their concerns on these regulations and the fear of the implications of these regulations, in fact may have just been a flag that was thrown up. It was like a referee at a football game. It's throwing up a flag and it may or may not come down. What a waste of time.

The Chair: Mr Tilson, I have been told that we're discussing Bill 164, not the regulations.

Mr Tilson: I'm sorry, sir, but the regulations of every last statute in this province form part of the act. That's the law.

The Chair: I'll go on to Mr Mancini again.


Mr Tilson: They do. What do you think they are?


The Chair: Order. Mr Mancini --


The Chair: I was just correcting the record, that we're dealing with Bill 164, section 1. Mr Mancini.

Mr Mancini: I guess the message is not getting through.

Mr Owens: Speaking of mumbling, what was that?

Mr Mancini: I said I guess the message is not getting through.

The Chair: Did you have more comments, Mr Mancini?

Mr Mancini: I do have some more comments but I understand my colleague Mr Kwinter has a few comments he'd like to make, so I will yield the floor at this time to Mr Kwinter.

The Chair: I recognize Mr Tilson, then back to Mr Kwinter.

Mr Tilson: I just simply want to be put on the list, if Mr Kwinter has some comments.

The Chair: I was trying to rotate the three parties.

Mr Tilson: All right. Thank you, Mr Chairman.

The reason why I appreciate the comments made by Mr Mancini on this whole subject of section 1 is that it deals with the fact that we are now going to have a statutory accident benefits schedule. I expressed some concern on the comments made by the parliamentary assistant that the regulations that have been put forward may or may not be the package that the insurance industry is going to be dealing with.

However, I assume that because of the brevity of this act, in that the bulk of the legislation is in fact the legislation, we will be dealing with regulations. There are obviously many concerns that have been expressed during these committee hearings and prior to these committee hearings.

Mr Mancini has taken the brief of Mr Gilby, an excellent brief, and has started to proceed with that. Of course, the purpose of Mr Gilby's presentation was to compare what one received under OMPP for the value of death benefits, specifically, and what one is going to be receiving under Bill 164. They're very startling examples that the survivors of these individuals are going to be in deep trouble as a result of this legislation.

The question of course is whether, with this tremendous loss in the two examples Mr Mancini had started to -- actually, there are three examples; I think he just referred to two. The first example showed a differential of in excess of $93,000 under Bill 164 to $435,000 under OMPP; the second one showed a differential of $149,000 under Bill 164 to in excess of $623,000 under OMPP, and the third one a differential of $97,000 under Bill 164 and in excess of $396,000, almost $397,000, under OMPP. The innocent accident victim, who is not only the person who's involved in the motor vehicle accident but members of his or her family, is not receiving the benefits he received under OMPP.

It's very important that we look at this, to make sure we understand what in the world this statutory accident benefits schedule is. The public, the press, almost every last delegation that came to this committee, expressed their fear that not only is this whole process going to cost them as much as 25% in increased premium rates, but also that they're going to have fewer rights, that they're going to be receiving fewer benefits.

The examples Mr Gilby gave are quite excellent examples. He's photocopied a number of decisions from Goldsmith's, the digest service, and if you start looking at those examples, there are half a dozen pages in that brief, all of which are photocopies of Goldsmith's. Just take them at random.

There's the case of Chalmers and Smidt, which was a 1991 decision. This was a 35-year-old, heavy-duty mechanic and he suffered a compression fracture of his spine. He spent 10 days in a Stryker frame and some time in a body cast. He was hospitalized for two weeks, and there was unlikely to be any long-term effect from the pelvic fracture. However, the plaintiff was unable to exert himself for more than two or three hours without a rest and he'd been unable to engage in his pre-accident pleasures of backpacking or camping. He was unable to return to his former strenuous occupation. He planned to retrain by enrolling in a mechanical design program.


The judge in that decision -- this is a British Columbia decision, but the principle is the same, because it would apply in Ontario -- awarded non-pecuniary damages in the amount of $35,000 and he awarded $90,500 for future wage loss. This is a head note or summary of this case. Under Bill 164, this individual, this heavy-duty mechanic who's 35 years old, is not going to receive $35,000, because right off the top there's a deductible of $15,000, so there's a penalty right off the top and future loss of wages -- well, we know that economic loss is gone under this legislation.

There's the issue of the penalty clause, the deductible clause, and that's all it is -- a penalty because those moneys are going back to the insurance company -- and there's the issue of the loss of economic loss for future wages. Under Bill 164, the government is therefore saying, "Oh, but we're receiving all of these benefits under the statutory accident benefits schedule."

People are very concerned. There have been other examples given. There was an article, a letter to the editor, which I referred to in the House. It came from Ms Haeck's riding, St Catharines. It was an article in the Toronto Star of January 4 and it gave some examples, particularly of the student or of the independent corner store business person, of what Bill 164 is going to do to those people. It expressed grave concerns. This is back over a year ago, in January 1992.

The two examples I'm going to refer to are typical. Whether you're talking about the highly qualified individual who's between jobs, who's unemployed but highly qualified, who's highly trained but unemployed because of the recession or because the company has closed down, whether we're talking about the medical student who has gone through years of education and is on the verge of becoming a doctor and unfortunately gets involved in a motor vehicle accident, what's going to happen to them under Bill 164?

We're talking about the man or woman who takes time off from work. They may be highly trained and highly qualified, particularly the woman who goes away to have a child and is highly paid and highly qualified and has great potential down the line in her career, and unfortunately gets involved in a motor vehicle accident. She will not be able to recover adequately for loss of future income. This legislation says the whole principle of economic loss is gone. There's the farmer who's operating an individual farm. What's he's going to do?

These are the two examples I'm going to refer to and that I have referred to in the House, but I'd like to emphasize them. I'd like to emphasize them over and over because people are very concerned and the question, of course, is going to remain. I do think there needs to be considerable time spent by the staff, the bureaucrats or whoever is going to come and tell us, to assure us that the statutory accident benefits schedule is going to adequately address all these people, because I don't think they are, nor does anyone else who came before this committee. No one believes it, and the facts are that they're clearly not going to.

This was a letter by a Mr Barr, and it appears from the wording of his letter that he's a lawyer, but it doesn't matter. It was a letter in the Toronto Star, and it was typical of many letters that have been written to all members of this committee and all members of this House expressing their concern on this subject of economic loss. He said in that letter:

"Let me give you an example of this proposed added bonus," which is the $1,000 per week that's talked about.

"Assume a small businessman, a corner store operator. His store is open from 7 am till 11 pm, seven days a week. He works constantly. He clears $25,000 a year but his business is growing and he's optimistic for the future. A drunk driver crashes into him and he is disabled for a year. Under the new NDP plan, he will receive 90% of his profit, that is, $22,500 a year.

"Unfortunately, he can't hire anyone to work the way he did for $22,500 a year. Even if he could, this would leave him with nothing to live on. So he loses his business. He is wiped out. Of course he is entitled to claim damages for pain and suffering, subject to a $15,000 deductible. But if he recovers in a year, he won't be able to prove $15,000 damages for pain and suffering. He gets nothing.

"Another example. A student's leg is badly injured when a motorist pulls out from a stop sign without looking. He loses two years from school. He is two years late entering the workforce and loses two years' income. Then he gets a job. But the evidence is that in about 15 years, he will require an artificial knee and a hip replacement. This will have to be repeated in a further 15 years, after which he will no longer be employable. He will lose, probably, several hundred thousand dollars of earnings because of the accident. He cannot claim it, and he will probably wind up on public assistance by age 50."

I know the parliamentary assistant's probably just itching to respond to these things by saying, "Oh, but it's all going to be looked after by the statutory accident benefits schedule." He's just dying to tell us all that, and that leads me to the point, which is that we have a draft set of regulations, which may or may not be in fact the regulations that are going to be used under this legislation. So we may not have anything by the time this bill reaches third reading, and hopefully it never will. But we need to have some sort of assurance, some sort of explanation.

Delegation after delegation has come to this committee and said, "It's not going to work," that the innocent accident victim is in deep trouble. So I guess it's that, Mr Chairman, and my question is perhaps to Mr Owens, as the parliamentary assistant.

Having heard all these delegations, and having had both Mr Mancini and I and other members of the opposition show you the regulations, no one can understand them. I don't mind telling you, I'm not afraid to tell you that I've looked at them; I don't understand them. Lawyers who have come have read them; they don't understand them. Medical doctors, people in the medical profession, have come and they have looked at them, people who are accustomed to looking at regulations dealing with motor vehicle accidents; they don't understand them -- delegation after delegation after delegation.

I hope Mr Owens is not going to say, "But I understand them," because I don't think he does. I think that if he was going to be honest with this committee, he would say he doesn't understand them.

My concern is that by passing this legislation, all of this uncertainty is going to expand the fear, "My goodness, if I get involved in a motor vehicle accident" -- of course people say, "Oh, well, only 10% of the population gets involved in a motor vehicle accident and there's really no fear." It's like a flip of the coin. That's not improving the system.

Mr Chairman, I have some other areas. I don't want to give up the floor, but that's one dealing specifically with the regulations, whether they're draft or whether they're permanent. I'd like the parliamentary assistant to comment on how the government proposes to educate members of the opposition, the legal profession, the medical profession, the insurance industry, the Ontario Insurance Commission, because it's going to be mediating all these darn things.

You can bet your bottom dollar that there are going to be more and more contests as to whether someone qualifies for certain benefits or not, because money's tight. Money's tight in this province anyway; the Treasurer's telling us that all the time. But money is tight, and you can bet your bottom dollar that because of the tightness of money, the insurance industry is going to be very, very difficult to deal with in granting out these benefits. So who's going to educate all of us, and how is that process going to take place and how much is it going to cost?


Mr Owens: I'd like to thank the member for his question. In terms of how the education process will take place, as I've commented and the minister has commented in the House and in various interviews and through these hearings, the insurance industry and the government are committed to working together in terms of drafting a plain-language document so that people can in fact understand clearly where their rights and responsibilities are.

In terms of the cost issue, I can't identify a cost at this point, but your question has been noted and we'll respond to it as soon as it is reasonably possible.

Mr Tilson: Thank you. I guess then I get back to the letter to the editor with Mr Barr, who is commenting on all of these unfortunate situations. What are we going to tell these people? I mean, we're all members of this Legislature. Even before I became critic of the Ministry of Financial Institutions, as it then was, I got people coming in who were very critical of OMPP, as I'm sure you did, people who were involved in motor vehicle accidents, who didn't understand.

They were minding their own business, driving along in a car, and something happened, whether it happened that someone was inattentive or a drunk driver or whatever. I didn't get a lot of them, but a number of people came to my office and I'm sure they came to your office. They were bewildered. The legal profession were bewildered. They didn't know what this test was of "serious and permanent." They didn't know what that meant, and obviously the courts are having a great deal of difficulty with it too.

Of course, the argument comes that, well, has Bill 68 worked its way through the process? Will a test which no one understands or they find too harsh be modified by the court? That argument has been given, particularly by members of the insurance industry, and in fact by many, many people outside the insurance industry. But we've also been assured by almost every delegation -- and Mr Mancini quite rightfully keeps referring to Mr Gilby's presentation. The facts in there are pretty damnifying towards the government's legislation. They are quite drastic comparisons, the three examples that he gives.

I've never heard anything to refute that. I don't know whether you're in a position to refute what he's saying. I think he's right, and if he is right, why in the world are we proceeding with this legislation at this particular point, when we're going to be worse off? The innocent accident victim is going to be worse off. Either that or Mr Gilby is wrong, and if he is wrong, I'd like someone to tell me whether he's wrong. That's a question to the parliamentary assistant, Mr Chairman.

Mr Owens: We are currently looking at the assertions that Mr Gilby has made in his brief. I think it should be noted that in terms of the individuals who actually make it to court, based on a Supreme Court of Canada ruling, Teno v Arnold, in fact in the issue with respect to economic loss -- to my recollection, and I'll get the exact case -- that individual was awarded $6,000.

Mr Harnick: Those are 1968 dollars.

Mr Owens: Yes, 1968 dollars, as the member for Willowdale indicates.

Mr Harnick: In 1968 dollars. We're 24 years from then.

Mr Owens: Which, inflated to 1992 dollars, in my recollection, would be approximately $13,000.

Mr Harnick: The kid ended up getting $1 million.

Mr Owens: So in terms of the bonus situation that is envisioned by Mr Tilson and the proponents of tort, there are a number of variables that need to be taken into account.

Mr Harnick: Come on.

Mr Owens: Let me finish. First of all, the individuals have to meet the threshold at this point. You're right: Very few people meet that threshold. Then again, they also have to be innocent. What happens, for instance, if the individual has nobody to sue? What if that individual skids on black ice and there's nobody to sue? That individual is totally disfranchised under the current legislation.

Mr Harnick: It's not true. You get no-fault benefits under the current legislation.

Mr Owens: In terms of the ability to sue for economic loss, which is the question under discussion here, Mr Harnick, if you would listen, the individual is not able to access those benefits. In terms of what we are doing with respect to the ability to sue for pain and suffering, in fact that will make available not only the statutory accident benefits, which is the clause under discussion here under part I, section 1, but will also give those who are injured the ability to sue.

Mr Tilson: It still doesn't resolve this issue of the series of cases. We could take Goldsmith, as you may or may not know; it's a whole series of digests that Mr Goldsmith puts out. Anyone in motor vehicle claims is aware of it. If you look at all of these cases that Mr Gilby has photocopied, most of them are OMPP. It's not all of them, but they talk about general damages and about economic loss. These people received compensation for economic loss. It gets back to Mr Barr, it gets back to Mr Barr's letter and it gets back to all of the examples: the self-employed, the women and the highly qualified worker in between.

I'm just trying to picture myself a year from now, after this legislation has passed if it is passed. Don't go away, Mr Owens, unless I can ask somebody over here a question.

Mr Owens: Don't worry, I'm not going away. I can hear your question from this side of the room just as well.

Mr Tilson: Sure. We're sitting in our constituency offices and we've had complaints about OMPP. Now maybe those complaints will resolve themselves, and that argument has been made. They may be legitimate arguments. But what are we now to tell all of these people? I guess you've all had the brief. Here's one: $10,000 for loss of income, $90,500 for future wage loss. In every last case that's been copied, they all have received substantial compensation for economic loss, for future loss of income.

I will tell you that you haven't persuaded me. I know you haven't persuaded Mr Mancini, you haven't persuaded the legal profession and you haven't persuaded the medical profession that the statutory accident benefits schedule, if I could return to clauses 1(1)(a) and 1(1)(b), is going to adequately match or come close to what was provided for in OMPP.

When you're sitting in your constituency office a year from now, what are you going to tell these people who have come to us and said, "We didn't like OMPP, but this is a disaster"? What are we going to tell these people?


Mr Owens: Just on a point of clarification before I answer your question, you indicated that we hadn't convinced the medical profession of the comprehensiveness or the adequacy of the legislation. Can you tell me which --

Mr Tilson: Yes. I can't remember the name; the last delegation, medical, last Tuesday, just as an example.

Mr Mancini: The rehab people.

Mr Tilson: The rehabilitation people came. They all came from Chedoke hospital, I believe it was, and they spent a great deal of time on that brief, if you would review that brief in the Hansard. They indicated they had a number of concerns, and one of the concerns was what I have just reiterated to you.

Mr Owens: Just in terms of the issues with respect to economic loss, I find it passing strange that we look at particular cases that have been chosen by folks to support their supposition, but what we don't see are the people who don't get into the case law books, who don't make it into court.

My question that I ask myself when I sit in my constituency office is, what do I tell the families of the individuals who were injured under OMPP who don't make the threshold, who don't get into court? What do you tell those people?

Mr Tilson: My understanding, Mr Owens, is that there were already benefit packages that were provided under Bill 68 and under the previous legislation.

Mr Owens: Oh, there's absolutely no question there are benefits but --

Mr Tilson: The Insurance Act quite clearly provided for benefits.

Mr Owens: Oh, absolutely.

Mr Tilson: That's the answer that you give your constituents.

Mr Harnick: Why should the innocent person take less?

Mr Owens: No one is trying to mislead the public into believing that there are no benefits, and if Mr Harnick would like to heckle, I would ask him to refrain and restrain himself so I can answer his colleague's question.

The question that remains is whether in fact the benefits are adequate, and Mr Mancini, in his opening statement, said quite clearly that nothing needs to be changed with OMPP, that the system is operating fine.

I'll ask Mr Mancini if that opinion still holds after the representations that have been made, including some representations that were made in Windsor, that indicate that cutting people off after $500,000, those who are most catastrophically ill, is not the way to go, in terms of capping attendant care at $3,000 a month is not the way to go. We are currently addressing that issue with respect to the cap on attendant care through a task force that'll look at the issues of access.

So when I sit in my constituency office and those of my colleagues, yes, we do think about what happens and what will happen to victims.

Mr Tilson: Mr Owens, that really wasn't my question. Listen, our party and your party, the NDP, spent hours and hours telling the people of this province how terrible OMPP was. The fact that I'm trying to raise is, does Bill 164 really improve on Bill 68, on the OMPP legislation?

Mr Owens: There's no doubt that OMPP is a terrible piece of legislation. We don't disagree on that.

Mr Tilson: No, but we're not here to debate Bill 68. We've done that. The last group that was in here spent hours and hours going at the Liberals. You did, your party did as well.

Mr Owens: That's right.

Mr Tilson: In fact you've now reversed everything. You're worse. Your legislation is worse than OMPP. If you wonder why people like Mr Harnick and myself and members of your own party are getting so excited -- well, they are -- they're getting terribly excited because it's the reverse. It's as if you've closed the book and opened up another book. I simply say that if you start --

Mr Owens: I'm not sure I understand the analogy.

Mr Tilson: What I'm looking for is, and we'll start right in subsection 1(a), how in the world does Bill 164 improve on the OMPP? Why will the innocent accident victim, who is now going to have less rights and it's going to cost him more, be happier? I'm really worried about when I'm going to be sitting in my constituency office a year from now trying to explain to people that they're better off, because I don't think I can.

Mr Owens: You're going to be able to tell them, I hope with some level of pride, that the $185 a week, as a minimum, that the Liberals left unindexed has in fact been indexed, that in the case of the death of a victim, in fact the death benefits go from $25,000 to $50,000.

Mr Harnick: Don't brag about the death benefits, please.

The Chair: Mr Harnick.

Mr Owens: In terms of the rehabilitation again, we've taken the caps off of long-term care, which the former government felt, after $500,000 had been expended, was in fact no longer the responsibility of the accident benefits plan. Sir, there are a number of improvements, and I would suggest that if you read the bill a little bit more closely, those benefits are clearly listed. We have provided care giver benefits which in fact were not available under the previous legislation.

I would suggest that in terms of how you would deal with your constituents after this legislation is passed, I know it might be difficult to tell the government that it's a job reasonably well done, but in fact that's what you should do.

Mr Tilson: I wish you luck, Mr Owens, I really do, because I'm going to blame you personally and I'm going to blame every last member of your party and the members of your government. I can't blame your party because I don't think your party is behind you on this one. I don't think your party is behind this one at all, and we're uncertain about the education process. There's been no explanation that's going to come forward as to how we're going to educate members of the opposition, the medical association, all those people.

Mr Owens: You refused to have a technical briefing at the beginning of this process.

Mr Tilson: I'll have one right now. I'd like -- what are you talking about? We didn't refuse a technical briefing at all.

Mr Harnick: We had it.

Mr Tilson: We had sort of a half-day briefing, which really didn't inform us a great deal. We weren't able to ask sufficient questions of the people from Mercer who spent half --

Mr Owens: Your transient memory is somewhat astounding.

The Chair: I'm sorry, Mr Owens. Mr Tilson was not here for the subcommittee meeting when that was decided.

Mr Owens: No, I think respectfully, Chair, Mr Tilson is referring to the first subcommittee where both Mr Harnick and Mr Mancini indicated that they --

Mr Tilson: Mr Owens, we're here now today to question with the clause-by-clause discussion.

The Chair: Let's just get on with section 1.

Mr Tilson: I'm sorry, Mr Chairman.

The Chair: Let's get back to section 1, not what happened in December.

Mr Tilson: I will only say that I think it's imperative that this government come forward with a specific plan as to how it intends to educate all of us, all of the stakeholders, to use this wonderful new word that the government's come up with, who are interested in this legislation, and that includes you and me.

How are we going to educate you and me? You're probably smarter than I am, Mr Owens; you're somehow sitting up there at the front of the room. But needless to say, I don't mind saying I need some education and it may well be that's something this committee should look at. It may well be.

Mr Chairman, the subcommittee is going to be meeting shortly and I would move adjournment of this committee meeting until 2 o'clock.

The Chair: Unanimous consent? Agreed.

The committee recessed at 1139.


The committee resumed at 1408.

The Chair: Okay, we'll resume Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters. We're on section 1. We had Mr Tilson when we adjourned. Would you like to stay on the floor?

Mr Tilson: Yes, I'd still like to make a couple of comments, because certainly we're dealing with the subject, as put forward in section 1, of statutory accident benefits. My remarks are going to be very brief and I would like to hear what Mr Kwinter has to say. I have some further questions and thoughts, but I think it would be fair to give the floor to Mr Kwinter.

The Chair: Mr Tilson, I'm going to be going to Mr Owens and then to Mr Kwinter. He has a few short remarks to make also.

Mr Tilson: Of course. That's fine. I will say that the concern that certainly the Progressive Conservative Party has is that I have been sitting on this committee listening to delegations and I have been sitting in the House. I am uncertain as to what this is going to cost the consumer. I have heard all kinds of figures from Mercer, from 4% to 25%, and several people have said they expect it's somewhere in between that, which is a strange thing to do. If you do nothing the rates may go up, but if you implement Bill 164 the rates are going to skyrocket. That doesn't make sense.

I'm concerned about the cost, the needlessness of the cost. I'm concerned about the workability of the benefits. Again, I'm getting back to the statutory accident benefits schedule, which may or may not be in draft form. The insurance industry has spent a great deal of time analysing this package of regulations. The legal community has studied it, the medical profession has studied it, only to find out that this may not be the package that's going to be put forward.

Someone keeps saying, "It's not part of the act." I can assure you that all regulations are part of an act. It says so in one of the sections of any bill that the Lieutenant Governor may put forward regulations. That's how legislation works. It works through issues of regulations. One of the concerns of many members of this House, and I can't believe simply members of the government, is that what this bill is doing is assigning too much to the regulations, that it's not clear enough in the bill. The whole process of educating us remains unanswered.

If the Progressive Conservative Party were putting forward legislation, I would think that first of all we should set some time aside. We did not support the OMPP, we still do not support the OMPP, but we're into it. Rightly or wrongly, we're into it. Now we're into an unexplainable reason as to why Bill 164 is being put forward. No one seems to know why we're doing it. No one seems to know the cost of it. No one seems to know how we're all going to get educated. No one seems to know what size the insurance commission is going to expand to. The insurance companies are having unbelievable difficulties understanding the meaning of many of the benefits set forth in the schedule.

There is a great deal of uncertainty, and that word has been used throughout, in all of the delegations -- not all of them but a good number of the delegations that have come forward -- the fear of the uncertainty. This is a very poorly drafted piece of legislation. It's a very uncertain piece of legislation which has been compounded by the fact that the parliamentary assistant has now told us that the schedule of regulations may not be the schedule of regulations, that we may have another schedule of regulations. That troubles me because, in other words, we're going into a field that's full of land mines that could explode. I think it troubles the people of Ontario as to where we're going.

I have a number of other questions in areas on section 1, but I think it would be fairer to hear other members of the committee speak on some of the things I've been saying and some of the things Mr Mancini has been saying.

The Chair: Maybe some of those questions you could address now and maybe when we go to the parliamentary assistant he can answer you on those.

Mr Tilson: I'd like to hear responses, one by one, to some of the comments. I'd like to hear other members comment on some of the things I've said, whether they agree or don't agree, and if they don't agree, why they don't agree.

The Chair: Okay, you have the floor.

Mr Tilson: I'll just ask the parliamentary assistant for his comments on what I've just said.

Mr Owens: Which question would you like me to respond to?

Mr Tilson: All right, if you want to do it that way, fine. If you want me to spend a great deal of further time, I'm trying to develop some sort of debate on section 1. I've put forward a concern that I have on the issue of cost, the uncertainty of cost. There have been no feasibility studies other than Mercer, which has been challenged. It has been challenged quite legitimately and we've heard all the objections. There has been no specific feasibility study as to the effect it's going to have on the Ontario Insurance Commission. There have been no feasibility studies.

We've heard testimony given to this committee that the insurance commission wasn't even invited for comments. In fact, Mr Scott has said that he's going to have to hire about 100 more people. That fact has not been disputed -- and I'll use the parliamentary assistant -- by the government. I assume that because he said that, that is a fact. We have no feasibility as to the number of bureaucrats, the increasing bureaucracy, not only to the insurance industry but to the government. I don't know whether the Ministry of Financial Institutions -- and I don't even know what the ministry is called any more, but whatever it is called, the ministry that's responsible for auto insurance -- I don't know what additional civil servants are going to have to be retained and what cost that's going to be to the Ontario taxpayer. I don't know what it's going to do to the Ontario Insurance Commission.

So we'll leave it on that. If you wish me to run down my questions, I will be pleased to do that.

The Chair: Maybe we could go one by one there.

Mr Tilson: That's what I'd prefer to do.

The Chair: Okay, fine.

Mr Tilson: I would also like to hear some of the comments from other members of this committee -- not just Mr Owens, but other members of this committee, because I think those questions have been asked over and over by delegations that have come to this committee. I think specifically that whether the spokesman for members of the government side of this committee is going to be the parliamentary assistant or not, it's imperative that the government respond to those concerns.

Mr Owens: I'd like to thank Mr Tilson for his questions. In terms of committee procedure, as Mr Tilson is well aware, the members can ask questions of the parliamentary assistant or ministry staff. There is not an ability to question each other as committee members.

In terms of your concerns with respect to cost, the government is also concerned about the costs to the consumers for the insurance package. I think it was best put by a deputant who indicated that we could give her the policy for free, but if it didn't have a comprehensive benefits package attached to it, then it wasn't worth the paper that it was printed on. I realize I'm paraphrasing this witness, but that's essentially the issue that we are looking at, in terms of striking the balance between what costs the consumers are willing to bear versus the costs of providing a comprehensive accident benefits schedule to people.

To demonstrate that concern, we, along with representatives of the industry and along with representatives of the rehabilitation community, are taking a look at the issue with respect to the $3,000-a-month cap that is currently in place to determine whether or not that cap is reasonable and to determine issues with respect to access to the system.

In terms of the Ontario Insurance Commission, the member is aware that the number he is using arose out of a question at question period, and he was quoting Don Scott from the Ontario Insurance Commission. If one of the ministry staff or Brian Donlevy could provide me with a Hansard, I can quote directly the answer from the minister, but it's my recollection that the minister did state at that time, and will continue to state, as he is the person responsible for auto insurance in this province, that it will be the minister who will make the determination as to the personnel requirements at the commission.

Mr Tilson: Is he going to take over the Ontario Insurance Commission?

The Chair: Okay --

Mr Tilson: Mr Chairman, I agreed to give up the floor and now you're shutting me down.

The Chair: No, no. What I was going to say is that I had your mike turned off. The reason is because when Mr Owens is talking, I want to make sure the audience can hear. With the two mikes on, it fades away. He has a very low voice that doesn't carry, so if he can just --

Mr Tilson: He has a very loud voice, Mr Chairman. In fact, it's deafening.

The Chair: Well, no. I have a hard time hearing him up here, so I think the audience down there would agree that it's a soft voice and it's hard to hear. Can you just, when you go on, give it two seconds before you start? Go ahead, Mr Tilson.

Mr Tilson: I think we should stop on that last point, that the minister is going to start interfering with the Ontario Insurance Commission. If we're talking about making this system work, although the insurance commission are government appointments, supposedly they're independent. Supposedly it's an independent operation. It's not, because in fact the government, if it so chooses, could appoint all its political friends to that committee. They have the ability to do that. Well, you laugh, but they certainly could do that.

Mr Owens: Like who?

Mr Tilson: Like who are your friends? Well, you have fewer and fewer friends left; there's no question about that. But the fact of the matter is that you could do that.

Now you're going one step further. You've said the minister is going to decree what the Ontario Insurance Commission does. That, essentially, is confirming the fear the insurance industry has that there's no independence in this whole process, that the government's taking over the whole operation. When we get down to mediation of disputes, as to what's a benefit and what's not a benefit, and the minister is decreeing what in the world the law is going to be and what benefits apply and what doesn't apply, why have an Ontario Insurance Commission, if that's what you're submitting?


The Chair: That's the end of the question? Mr Owens.

Mr Owens: I'm always amazed at what can be accomplished by a simple twist of phrase. In terms of what I may or may not have said, I did not indicate --

Mr Tilson: Do you want to read Hansard back?

Mr Owens: -- the minister was going to run the Ontario Insurance Commission. I indicated, in a response to your question in which you quoted a figure given to you by Mr Scott, that it in fact will be the minister who makes the decisions with respect to personnel hirings and complements. Mr Scott, as any other director, is able to hypothesize on what his personnel requirements will be. That is certainly his right, but in terms of the final decision with respect to personnel that will be required, if in fact there is an increase required, those decisions will be made at the time.

Mr Tilson: Just so I'm clear, do I understand that you're telling this committee the minister will be telling Mr Scott, or the head of the insurance commission, who he can and cannot hire?

Mr Owens: No, that's not what I'm saying.

Mr Tilson: What are you saying?

Mr Owens: One more time, with feeling: In terms of the personnel complement -- and that, in plainer English, means numbers -- in terms of the numbers that will be required for the commission, they've yet to be determined, and at such time as more personnel are required, if in fact that is the case, then a decision will be made. You're assuming that because of a conversation you've had, and you raised an issue in the House, all of a sudden that fact's reality. Well, I'm suggesting to you, my honourable friend, that may not be reality.

Mr Tilson: I guess my concern is, which gets back to making the statutory accident benefits schedule work --

Mr Owens: Well, that's exactly what my question is going to be.

Mr Tilson: You can make all the interjections you want -- hopefully you won't make any more -- but the fact is that the system has to work, and part of the way the system is going to work is that unless you change everything, and I'm beginning to wonder if that's what the real aim of this government is, you have to have a working, viable insurance commission.

Mr Owens: We agree.

Mr Tilson: Someone has to deal with these problems, unless you're going to do away with the insurance commission and have something else. You've never said that, so I therefore assume you will still stand on the principles of the Ontario Insurance Commission operating. To do that, the head of the Ontario Insurance Commission has indicated publicly that it will require at least 100 more individuals -- 100 more people to make it work -- and you're saying: "No, that's not true. If the minister decrees that he doesn't need 100, notwithstanding the fact that Mr Scott says he does, that's the way it's going to be."

Somewhere along the line, the Ontario Insurance Commission has lost a great deal of independence. One delegation came to us and it had prepared as if it was the Ontario Insurance Commission that was coming. In fact, that wasn't the delegation; it was someone who, I think, had done some work for the Ontario Insurance Commission, but it wasn't the Ontario Insurance Commission. What I can't understand is why the staff who are here to explain things, particularly this unbelievably complicated set of regulations -- we haven't heard whether or not the Ontario Insurance Commission is going to be able, with the mandate it has, to make this system work. Mr Scott has said he needs 100 more people. Mr Charlton is saying, "Well, you're probably not going to get that."

Mr Owens: Sure he can.

Mr Tilson: I need to know whether this system's going to work. There are all these unanswered questions as to cost, as to how we're going to explain this complicated package to everyone.

It gets into a third issue, and that is the disputes that are guaranteed to develop between the innocent accident victim and the insurance companies, and I tell you, they're going to develop. There will probably be reports put out. If you thought you were doing away with the legal system dealing with the tort, you've created another monster, because I can assure you that the insurance industry, simply to survive, will be challenging the meaning of certain benefits under the statutory accident benefits schedule.

That raises the question I have raised throughout the hearings and on which you made some startling comments, and I'm looking forward to clarification on them, as to who's going to represent the innocent accident victims. The legal community isn't going to. There may be some, but there certainly won't be the representation they've had in the past.

You have made suggestions, Mr Owens, that there will be a form of advocacy group, some sort of a semilegal opinion, notwithstanding the fact that people who have sustained very serious injuries have come to this committee and they say they are entitled to the best advice they can get. Yet you're not allowing that, so that's a third area we need to spend a great deal of time on, all of which are related to the statutory accident benefits schedule. You can answer any one of those three questions.

Mr Owens: Oh, absolutely; I certainly intend to, and I appreciate those questions as well.

Unlike the current OMPP, if the insurance company takes the view that it wants to cut a person off his weekly accident benefit, currently the person is up the creek without a paddle. What our proposed legislation does is provide for the continuation of the benefit while this process is going on. We see that as a way of ameliorating any kind of response that you suggest is possible. I think it would be highly irresponsible for an insurance company to take what appears to be a political position in determining whether or not it agrees with our definition, and simply to use victims as its test cases.

Mr Tilson: Don't take shots at the insurance companies like that.

Mr Owens: May I finish my points? You certainly were allowed your floor time and I'd like to respond.

In terms of your comments with respect to my startling testimony or comments, they may be startling to you, but I think most people around this place are aware of legislation that has gone through with respect to the Advocacy Act, the Substitute Decisions Act and the Consent to Treatment Act.

What I did say, Mr Tilson, was that the minister is highly concerned about advocacy in the system and how one goes about providing effective advocacy for individuals, especially those who may not be in a position to make their wishes known to people, or those who may have suffered a head injury and are not competent to make those kinds of decisions. So in terms of the advocacy issue, you're quite right, the minister is concerned about advocacy, and about ensuring people do have the best representation possible.

Again, you've taken comments and twisted them to bring them to some kind of reality in your view that we're going to be hiring and providing people with $40,000-a-year representation while the insurance companies are going to have the benefit of more expensive counsel. That's simply not true. In terms of the process that will follow, advocacy is a major concern of the government and we're going to work out the best process possible for people, to ensure they have good representation.


Mr Tilson: You see, Mr Owens, that is the very point I'm getting at, that you're still working on things. You're still working on where you're going with respect to advocacy. I'm sure you all have a copy of the summary of recommendations legal research has prepared for the committee. When you turn to page 28 on the subject of legal counselling, where a summary has been made of several people, it says:

"While the draft regulation provides for rehabilitation counselling, financial counselling, employment counselling etc, it contains no provision for legal counselling. Given its complexity, the draft regulation should include provisions for reimbursing accident victims for all reasonable legal counselling expenses."

I'm not so sure whether I want the government to pay for all this, although it's starting to pay for everything. Somewhere along the line the government's going broke; it's taking on too much. The issue is that there's a whole group of people who are not going to have legal counselling, specifically dealing with the insurance industry.

I'm not taking shots as you are, Mr Owens, at the insurance industry. I'm not saying that.

Mr Owens: Oh, come on.

Mr Tilson: Well, you are. You've made some very adverse comments towards them. I'm simply saying that they've come to us. Everyone has come to us, whether it be the adjuster, the broker, the president of the company. Groups of people have come to us and they've talked about their fear of participating in a system that they don't think is going to work because of the whole issue of costing, and because of their not being clear on understanding a lot of these issues.

Mr Mancini has kindly provided me with a copy of the brief of Mr Dave Cooke's brother, who made a submission in Windsor. His name is James H. Cooke.

Mr Owens: You are aware that any indication that you take a different view of Mr Cooke simply because of his brother's position in this government or any other government is a violation of the Ontario Human Rights Code under the family relationship --

Mr Tilson: Don't be so sensitive.

Mr Owens: That brief has absolutely nothing to do with Dave Cooke.

Mr Mancini: That's the silliest thing I've ever heard.

Mr Tilson: Mr Chairman, Mr James Cooke came to this committee and told us he was his brother.

Mr Mancini: He came before our committee as a witness in front of you, Mr Owens.

Mr Tilson: He was the one who announced it himself. He made it quite clear to us that he was having a great deal of difficulty speaking against his brother. He obviously supports his brother, as most brothers do, but on this particular issue he found a great deal of difficulty supporting what the government's position is.

The Chair: He had that opportunity.

Mr Tilson: He did and he made those statements. I'm repeating what Mr James Cooke said. If I had announced something that was unknown to the committee -- but this was said. It's in Hansard. It's quite clear.

Mr Owens: He should complete his comments, then.

Mr Tilson: If you give me a chance and stop interrupting me, I'd be pleased to do that.

The Chair: Mr Tilson, you have the floor.

Mr Tilson: Page 4 of Mr James Cooke's presentation states:

"Lawyers are able to assist their clients through the regulatory nightmare. They are able to advise clients of the advisability of claiming non-pecuniary damages. Importantly, lawyers can fund the disbursements necessary to prosecute a claim. In summary, the plaintiff's bar was the counterweight to the large insurance companies and well-heeled defence counsel. The court system was the level playing field."

That's the gist of Mr James Cooke's presentation to this committee on this subject, that the playing field is no longer level and that the innocent accident victim, which your party and our party and probably the Liberal Party when it was putting forward OMPP -- we all have a concern about the innocent accident victim, but somehow they've got left behind on this thing.

Who's going to represent them and provide them with the type of advice that can adequately deal with the insurance companies, who are going to have -- he's not here today, but I don't mind saying Mr Harry Brown is an excellent lawyer; he was here yesterday -- lawyers of that quality, very highly qualified and trained lawyers who know this stuff, with all due respect to you, Mr Owens, better than you do because they have studied the legislation in great detail?

His job will be to assist the insurance company on questions of -- and it's going to happen -- whether someone qualifies for a benefit or not. The vagueness and the uncertainty of these regulations has made it quite clear: The very fact that everyone in this committee room, including you, if you were to admit it, doesn't understand this stuff. All the more reason why there's going to be great litigation. It will go back to the courts on yet a whole slew of issues.

I guess that's the question, that you say you're concerned about advocacy, yet you're continuing in this committee process when there are all these unanswered questions. There's a great deal more work that this government could do before it proceeds with this legislation. I don't care what House leaders have agreed to. We can all go back to our House leaders and we can agree to everything we want to agree to. If it's unanimous, this place can do anything. Surely we're not bound by three House leaders sitting down and saying what is what. If the government isn't in a position to proceed with this legislation, then it tells its House leader -- who is, ironically, the minister responsible for auto insurance now -- and the House leader for the Liberal Party and the House leader for the Conservative Party that we need more time.

We need more time to answer this question on advocacy. You have admitted now to this committee that you don't know where you're going on this thing, you're going to have to study it more. You've admitted the whole issue of costs. There's a whole slew of uncertainty about cost. There's a whole slew of uncertainty with respect to the insurance commission.

All right, you can accuse me of playing with words and I can accuse you of playing with words. The fact is that there's a whole slew of uncertainty with respect to the insurance commission, as to whether it's going to be able to operate. They haven't even been asked whether or not they can handle this thing. They've been asked for no opinion.

Where did I get that? Someone made a statement here who deals with the insurance commission. In fact I asked him if he would be prepared to recommend to the insurance commission that it would make presentations to the government recommending certain things. I don't know whether he's going to do that or not, but it's not his job to do that; it's your job. You're not ready to proceed with this legislation. Those are my comments for the moment, Mr Chairman.

The Chair: Mr Owens.

Mr Owens: Thank you, Chair. The reason we are having this discussion today is respecting section 1. People may have forgotten, but I would certainly like to reiterate that clause just to ensure that the opposition is fully aware of what we're supposed to be dealing with today.

Starting with subsection 1(1):

"The Insurance Act is amended by,

"(a) striking out `no-fault benefits' and `no-fault benefit' wherever those expressions occur and substituting in each case `statutory accident benefits' and `statutory accident benefit', as the case may be; and

"(b) striking out `no-fault benefits schedule' wherever that expression occurs and substituting in each case `statutory accident benefits schedule.'

"(2) A reference to the no-fault benefits schedule under the Insurance Act in any other act or in any regulation, contract or other instrument shall be deemed to be a reference to the statutory accident benefits schedule under the Insurance Act, and a reference to the benefits under the no-fault benefits schedule shall be deemed to be a reference to statutory accident benefits under the statutory accident benefits schedule."

In terms of the explanation for that, in case people have forgotten it in the close to six hours of debate we've had on subsection 1(1) of this legislation, we are changing the no-fault benefits listed to statutory accident benefits. This is to indicate that the benefits will be mandated by legislation and certainly not by contractual terms.


In terms of subsection 1(2), this subsection deems that references to no-fault benefits in contracts, insurance policies and any other instruments are to be referred to as statutory accident benefits.

In terms of what else I would like to say, we have approximately 10 sections that are certainly what the government views as being simple name changes and clarifications and nothing more than that.

As we sit here today, and as we have for the past six hours, debating the first section of this particular piece of legislation, I'd like to ask members to keep in mind some statistics that were raised, I believe it was by Mr Winninger in Ottawa, which were published in the Canadian motor vehicle traffic accident statistics for 1985.

The statistics state that, on average, a driver makes 20 decisions per mile and one error every two miles. This results in one near collision every 500 miles, one collision every 61,000 miles, a personal injury to an individual every 430,000 miles and a fatal accident for every 16 million miles travelled. As we sit here today, as I said, for the last six hours, looking at subsection 1(1), somebody has now either died or been injured.

Mr Mancini: Mr Chairman, on a point of order: Are your comments directly related to the no-fault benefits schedule or are you trying to build up a case?

Mr Owens: No, absolutely. My comments are totally germane to subsection 1(1).

The Chair: Mr Mancini, I've been following most of the members of the committee and I've been checking back that this has to do with the no-fault benefits.

Mr Mancini: That's fine. I just wanted to check with the parliamentary assistant. I didn't want to jump in and interrupt the parliamentary assistant.

Mr Owens: I appreciate your courtesy in that respect. In terms of the amendments to Bill 164, as I said, as we have sat here for the last six hours, some people have been seriously injured, some may have been killed and many more will fall under the OMPP legislation. Whereby they would have been able to benefit through our enhanced benefits, starting with subsection 1(1) in the legislation, they're not going to be able to do that.

Those who maybe took their eyes off the road for a mere second to check their speedometers or to fix a mat for half a second and ended up colliding with a car in front of them would be totally unable to sue for what has been touted as the new panacea or the not-so-new panacea to return victims to where they once were.

I think it's pretty clear that in terms of the benefits prescribed under the legislation and set up under subsection 1(1) of the act, it's important that rehabilitation begin immediately, that there are protections built in to the legislation to ensure that victims are not summarily cut off from their benefits and that there are also protections built in to ensure that insurance companies have a method to deal with people in terms of the ability to seek independent medical opinions if there is in fact doubt about whether the person should be receiving benefits at all.

It's our view that we have the concerns of both the businesses in this province, that is, the insurance companies, and the interests of the victims that would fall into this piece of legislation, beginning with subsection 1(1) of Bill 164, that we need to take a look at how we can, in the most efficacious way, begin to move on.

As I say, under the first 10 sections of the legislation, beginning with subsection 1(1), there are merely word changes. We have now spent close to six hours looking at this particular subsection, subsection 1(1) of the act, and maybe some of the remarks would be better addressed under some of the issues that members have addressed earlier.

It would also be quite helpful if members, if they are so concerned and their parties are so concerned about what we have done under Bill 164, starting with subsection 1(1), put forward amendments to the legislation so that we can have a look at those amendments. As I indicated to Mr Tilson earlier today, we are certainly open to suggestions and we are not merely engaging in an exercise to ram any kind of legislation down people's throats, including subsection 1(1) of Bill 164.

We have engaged in an extensive consultation process. I find it passing strange, once again, that Mr Tilson indicates that we have not spoken to any of the insurance companies about the implementation of the bill or even in terms of the preparation of the bill. I can assure Mr Tilson and members sitting in the audience who may be from the insurance industry that we have in fact consulted extensively with insurance companies.

We have consulted with insurance company groups like the Insurance Bureau of Canada and the Insurance Brokers Association of Ontario in terms of the implementation processes. As we move through the bill, starting with subsection 1(1), we will see that there are amendments that in fact the insurance industry has requested to make its life easier in terms of functionality.

We're certainly prepared too to do that and we hope that, as the opposition, you'll agree to supporting us in those amendments that have been requested. While those kinds of amendments may not include subsection 1(1), it's my request that we start by passing subsection 1(1) and that we move on to the second section and proceed through.

As I say, there are 10 sections that are simple changes of wording, changes of names, and there's clearly not a contentious issue among them. We certainly are prepared to engage in debate on the issues that are before us in Bill 164, beginning with subsection 1(1), but we would like to certainly get some of the name changes into place so we can move up to issues of substance that have been delineated by Mr Harnick and by Mr Tilson.

Mr Kwinter has not yet had an opportunity to delineate his concerns, but as he is a former Minister of Financial Institutions, I look forward to his input. Perhaps he can tell us whether or not, in his view, Bill 164 has in fact worked and how it has helped his constituents. I'm looking forward to that input. With that, Chair, I'll turn the floor over to the next speaker on the list.

The Chair: Mr Kwinter, you've been very patient. Three hours you've waited to get on the floor. The floor is yours.


Mr Monte Kwinter (Wilson Heights): Thank you, Mr Chairman. I am particularly interested in contributing to this debate because, as has just been alluded to, I was the Minister of Financial Institutions when the so-called insurance crisis came to a head in the 1985-86 period.

I remember with fondness, and I've said this to Mel Swart personally, the debates that Mel and I had in the House where he would stand up and call me a "gutless wonder," a "lackey of the insurance companies," a "lily-livered scoundrel." I remember one day when question period lasted 60 minutes and I was on the floor for 43 minutes answering questions on the insurance business. I said then as I say now: One of the basic problems that we have with this whole issue is that most people do not understand it. They do not understand how the insurance industry works. They don't understand what insurance is. So what you have is political rhetoric, emotional comments, and it is a very difficult issue to address because of that.

I'd like to spend a little bit of time just going through what I think the issues are and why I think Bill 164 does not address them and subsection 1(1) does not address some of the issues.

The insurance business is a very simple one. It is a very simple concept. I hasten to add that the administration of it is extremely complex, but the business itself is simple. A community, whether it's a community of a few or a whole country or a whole world, recognizes that there is a risk of some sort, where they are at risk. In order to protect themselves from that risk, they have to make some provision. Now, certain entities do what they call self-insuring. They feel that they are so large that the risk that could possibly happen to them is within their capability of handling from a financial, emotional, psychological view. They self-insure. A perfect example of that is the government of Ontario. The government of Ontario has such huge resources and such huge potential that it does not buy insurance, because if anything ever happened to it that it can foresee, no matter how catastrophic, it has the resources to pay for it.

Now, that is not the position of your average citizen. So the way to sort of address the problem is for, as a community, each one to put in a little bit of money to cover the eventual problems of a relative few. So what you do is spread the risk.

Now, I've said this to the industry and I don't mean it in a derogatory way, but I think the easiest way to explain how the system works is that the insurance industries are bookies. As I say, it isn't meant to be derogatory, in the sense that in the UK a bookie is an honourable profession. But what they are really doing is they are betting with their customers that they are not going to have a claim.

If you were a customer and you were convinced that you would never, ever have an insurance claim, then you wouldn't buy insurance. Why would you give somebody money that you will never, ever have to claim on to get money back? You would say, "Why would I possibly buy insurance?" But the point is that every single person feels that he or she could be at risk, so they pay into this pool of money, and the people who do have an accident draw out of that pool. Obviously, if everybody who put money into it drew out of it, you'd have a problem. There wouldn't be enough money to cover it because the person who contributes to that pool is not being asked to pay the full costs of a potential accident. So that is basically how insurance works.

Now, the insurance companies -- and this is the point that most people overlook -- are businesses. They are run by people who have investors and shareholders who put money into this company on the assumption that they are going to get a fair return on their investment. If they aren't going to get a fair return on their investment, they are going to withdraw their money. I just have to point out to you, if you've been following anything about the insurance industry and you followed the trials of Lloyds of London, which has a great historical record of being an insurance company, that it is made up of a group of syndicates. The members of those syndicates, who are called "names," are prominent people with assets and means who contribute money into a syndicate that allows that syndicate manager to issue risk insurance. The premise is that, sure, people will draw on it, can have access and they'll have to pay out, but they will get a reasonable return on their investment, and if they don't they are in trouble.

We've had the case where in Lloyds of London some of the most prominent people in the UK have had some financial problems because the insurance syndicates they had invested in had gone bad because the risks far exceeded what they anticipated. How do they anticipate the risk? They get people -- and we've all talked about them -- who are actuaries and who will say in any community the chances are that X number of people will claim on the system. They calculate that and they know exactly what that should be, based on actuarial history, and they'll say here's what it is. If we take in $1 million -- and I'm just using these figures for example -- and we have to pay out $700,000, we're going to be left with $300,000 and that is going to give us a return on our investment of whatever it is.

That's how the business works. It's a very, very simple business. Figure out what your risk is, calculate your rates accordingly so that when it's all over, you've paid all of your claims and you're left with a fair return on your investment. That is basically the system.

Now, when we get to the administration, you have a totally different story. Because of the way insurance works, people do not necessarily relate to individuals. All they see is these huge companies that have massive buildings on the main streets of the communities around the world and they feel that, "These guys have all kinds of money and somehow or other I am going to try and get what I consider to be a fair amount of money out of them." So what happens -- and this is where the contradiction comes in, because most insurance companies love to pay out money, it's good for business, as long as it's within their actuarially calculated expense. They love to have customers say: "You know, I bought an insurance policy from the XYZ company and I had a claim, it was settled immediately, they paid me my money and I got whatever I had to get and it was great. And I'm saying to you, if you want to have insurance, go to that company."

Many insurance companies pride themselves on settling the claims quickly and fairly because it's good for business. Where you have a problem -- they're twofold. You have people who are trying to beat the system, who claim they have an accident, claim they have a claim that isn't supported by the evidence. In order to protect both people, those that are justifiably entitled to a claim and those that aren't, you have the bar. You have the lawyers who go and plead the cases and they are the buffer between the two groups. The system has worked very well.

As I say, as far as the insurance companies are concerned, they know exactly what their exposure is, they know exactly what they have to pay -- not individually, but collectively they know what it should be. Where the crisis came in 1985 is that the courts made a couple of landmark decisions that really spooked the insurance industry, and I'd like to tell you about two of them.

One -- is Charles here? What's the name of the case in Brampton?

Mr Harnick: McErlean, I think it is.

Mr Kwinter: A young man with a dirt bike, up in Brampton, broke into a fenced public area in the city of Brampton. He broke into this property with his dirt bike, was fooling around with some of his friends, had an accident and was rendered a quadriplegic. He successfully sued the municipality of Brampton for $6 million, the argument being that they should have done whatever they could have to keep that fellow out of their property, that a fence was not adequate. On appeal, that particular award was overturned, but at the time it was standing it sent the signal to the insurance companies that the exposure we thought we had we didn't have.


There was another case where a group of students were driving from Toronto to Ann Arbor, Michigan, in a van and they had an accident on the 401 and all five of them were killed. The insurance company's feeling was that it had a limit on its exposure of $1 million; the courts ruled that it had an exposure of $1 million for every one of those passengers.

Mr Harnick: That was under the SEF 42.

Mr Kwinter: Yes. Again, the courts sort of reinterpreted the exposure that the insurance companies thought they had. As a result of that, all the insurance companies said: "Hey, just wait a minute. If you guys are going to do that, we're going to have to re-evaluate our position, because we have not made those kinds of provisions in our fee structure."

To get back to my analogy of a bookie, what happens is that an insurance company takes the risk, and as a good bookie -- and again, I keep using that analogy, and I don't want you to think I'm using it in a negative way, but I think it's the perfect analogy -- what they do is, they lay off their bet because they don't want to be exposed to such a huge potential payout. So what they do is they go to a reinsurance company, and that is the key to the insurance companies.

The reinsurance industry is the key to the insurance industry, because what happens is that an insurance company will say, "We will take the first $1-million or $2-million exposure, but anything over and above that, we will get a reinsurance company to take the balance." The reason, of course, the reinsurance people come into it is because the numbers they have to contend with are relatively small, so they can set a rate and they will get the reinsurance.

Now, when the courts started making these kinds of awards, the guys who were really fighting were the reinsurers, and the reason they were fighting is because they were the ones that were carrying the high exposure, albeit a fairly small number. But still they were at risk. So what was happening is that the reinsurers walked out of the market. They weren't controlled in the same way the insurance companies were and, as a result, there was no reinsurance.

We had a real crisis, because we had situations in day care centres where people were working in them and sexually molesting their charges and being sued. There were cases where school boards were being sued because children were being injured playing extracurricular sports. During my tenure as the Minister of Financial Institutions, suddenly it got to the point where school boards had to close down their extracurricular programs because they couldn't get insurance, where YMCAs had to close down because they couldn't get insurance, where a whole range of problems erupted because someone had sort of changed the guidelines.

The Chair: Mr Kwinter, I know you were the minister at that time, and I didn't want to break in, but I know your knowledge in that particular area on the other committee that we sit on, finance and economic affairs, on the budget. I respect your points of view. The one thing, though, I don't understand is that these awards were never paid out in the amount of $7 million. They were, what, under $1 million? Why did the insurance company still keep their rates high to school boards and -- I know I was involved with scouts at that time and we couldn't have a canoe trip because of the particular cost.

Mr Kwinter: You have to understand that the awards were not overturned the next day, and what was happening is that the insurance companies were doing a couple of things. First, they weren't writing any business, which was the big problem, because they didn't know what their exposure was going to be. Secondly, an appeal takes time, and it was just as easy to go for the plaintiff as against the plaintiff. Of course, since that time the thing has adjusted itself, but I'm talking about sort of the crucible that we were in at that time when insurance was a major crisis.

The Chair: We exploited it.

Mr Kwinter: That's the point I was going to make. Of course, at that time the NDP felt that here was their entrée into the public consciousness.

The Chair: Even before Kormos.

Mr Kwinter: So every day Mel Swart would get up and go after me. All he would do was talk about the great system in Manitoba and what it was doing, and every day I would say to him how bad the system in Manitoba was and that in fact it was subsidized insurance. If you're going to subsidize it, I have no problem, but don't hide it. I'm sure I don't have to tell you that eventually the truth came out on the Manitoba system and the government fell on the basis of its insurance program. That was the basis of their defeat.

To get back to it, you have a situation where the premium is set based on the predictability of what the payouts are going to be, and companies feel they make a fair return on their investment. So the question is -- and this was also quite interesting and quite evident at the time that this crisis was in evidence -- that in the automobile insurance sector, for every dollar it took in, it was paying out $1.13 in claims. Naturally, the NDP critic of the time didn't believe the figures, but they were subsequently verified, and the question is asked: "How can that possibly be? Why would anybody be in business where they take in $1 and they have to pay out $1.13?"

The answer is very simple. We have a situation in Ontario, as in many other jurisdictions, where it is mandatory to have automobile insurance and because of that, because every driver in that particular jurisdiction has to have car insurance, he's got to come to some insurance company to buy it.

So here's an excellent opportunity not only for the insurance companies to sell him the automobile insurance, where it may be losing some money, but to sell him his home owner's policy and to sell him a life insurance policy and a business interruption policy. It's a tremendous entrée for the insurance industry to get customers.

Of course, the other thing is what they didn't tell us but we subsequently found out, and I'm not criticizing them for it. Of that $1.13, there was an overhead factor and it was helping to spread the costs of running the operations.

What happened during the crisis was that companies were reluctant to take on new customers just for car insurance, because their attitude was: "Why would I take on a customer where I'm going to lose money? If you want me to give you car insurance, then I want you to buy some other insurance from me so I get a chance to -- you know, what I lose on the apples I make up on the pears." We then had a crisis where there wasn't capacity in the industry -- lots of companies but nobody wanting to take on new customers in auto insurance only.

The other problem that I think is important, because this is part of what we're talking about in this bill, is that when the insurance rates started to go up, and they went up quite dramatically, people were saying: "I've been driving for 30 years. I've never had an accident and yet my premium has gone up. I think that's terrible."

The reason they were critical is they didn't understand insurance. What happens is that the total cost of servicing the pool has to be spread among every member of that pool. Whether you've had an accident or not has nothing to do with it; it's just that you are a member of that pool, and in order for us to compensate the people who are drawing on it, you must pay more money.

Then the question came up, "If I've never drawn on it and someone else has drawn on it a lot, shouldn't there be some differentiation in how much we pay?" So the actuaries got to work and they said: "You know, you're probably right. Let us analyse who it is who's drawing on this pool." They found out that a disproportionate number of young male drivers under 25 were drawing on the pool, far exceeding their numbers in the pool, and they said, "Look, you guys are drawing a lot more than anyone else, so we're going to charge you more," and that has been the case. Young male drivers under 25 always pay an incredibly larger amount for insurance only because they're the ones who are drawing most of the money -- I shouldn't say "most of the money" -- a great chunk of the money out of the pool.


Then we have another situation, and that is, there are some people who are so bad and their driving record is so bad that nobody wants to insure them, but we have a conundrum. The province of Ontario mandates that in order to drive a car you must have insurance. How do you deal with that? How do you say to an insurance company: "Here's a guy who's a terrible risk. He smashed up six cars. He's had 43 moving violations. He's a terrible risk. You must take him"?

The insurance companies got together and, with the cooperation of the government, set up what they call the Facility Association. The Facility is funded by the industry, and with government support to administer it, to look after these high-risk people. If you go to an insurance company and you can't get insurance anywhere else, it puts you into the Facility. The Facility is very expensive, but it's very expensive because the risk is very high.

What most people don't understand, and I think it's important to know, is that there are also high-risk agents and insurance companies have a whole army of people in the province selling their insurance. They will keep statistics and they will say, "You know, this guy has brought us 50 customers and every one of them has been a payoff, we've had to pay out; we don't want to write any business for this guy any more," and he's an agent, whereas they'll have someone else who will have what they consider a statistically normal number of claims.

The agent can't place the insurance because no insurance company will underwrite it, so he has an unsuspecting client who comes in and says, "I would like some car insurance." If he's an astute buyer, he'll shop. My advice at the time was, "Go out and shop around, because there is this problem." The agent can't place the insurance anywhere, so he says: "I'm sorry, I can't place your insurance. You're going to have to go to the Facility." The unsuspecting customer thinks he's the problem when the problem is with the agent. So he winds up in the Facility when there's no reason for him to be there, and that has created a problem. All of these things have got to be addressed.

What are we talking about? We are talking about a system whereby people pay into the pool. Those who have an accident draw out of it, and the private sector, which is funding all of this, is entitled to get a fair return.

Now there are some companies that are only in the automobile insurance business, that's all they write, and several of those companies have withdrawn from the market. They've withdrawn from the market because they're losing money and there's no way they can make the money; they can't afford to take the losses and offset them against some of their other business, because it gives them this entrée into this marketplace.

When you talk about the legislation that we're going to be discussing, about limiting people and their ability to withdraw from the market, you are in fact saying to an independent businessman: "You must stay there and lose money whether you like it or not, and if you want to get out of it, that's too bad. We're going to make provisions for you to continue to lose money because we say so." That is a problem. This is a business, like any other, and you have to decide.

Mel Swart used to get up and say to me, "You should bring in driver-owned insurance, government-owned insurance." Whatever euphemism you want to use to describe it, you have to understand that there's no free lunch. It doesn't matter whether the government is running it or whether the private sector is running it. Unless you put in programs to improve driver training or you put in graduated licences or any of these other things, there is not going to be one fewer accident because the government owns the insurance or the private sector owns the insurance. There is not going to be one less repair because of that.

You then have to decide, what is the role of government? I say, and I've said this before, that if the government is going to get into the insurance business, then it has to acknowledge and realize that it will be in the subsidizing business, because politically it will find it difficult to raise the rates to meet the needs of the payouts, and you will be subsidizing drivers. You're asking every member of the taxpaying public to subsidize those people who are driving cars.

My attitude was that we have long since passed the philosophical barrier as to whether or not the government should be in the insurance business. We are already into health care, we already have workers' compensation, and there's no reason why we shouldn't take the next step into automobile insurance, other than that it makes no financial sense. It's as simple as that. If it made sense, why wouldn't we do it?

As I say, it's not a philosophical kind of thing. It doesn't make any financial sense. We paid hundreds of thousands of dollars in studies to determine that, and this government found out the same thing, which is why it hasn't implemented it. It doesn't make any sense in the same way that Bill 164 doesn't make any sense. All you're really doing is responding to a political need.

The question, and one of the problems we had with this whole issue, is that people were paying a premium, $300, $400, whatever it was, and one year, because of this crisis that in 1985, 1986 I described, their premiums went up to $600 or $700 or $800 and everybody went wild. They said: "My God, my insurance has doubled. I've never had an accident. Why is this happening?"

The problem of course is, who is to say how much insurance should be, because the insurance should reflect the experience of this pool. When you had a car that cost $4,000 and when you had someone who was earning $12,000 a year and was considered well paid, naturally the costs of servicing that kind of an environment were a lot less than when you get to modest cars at $15,000, $18,000, $20,000 and people earning $25,000, $30,000, $40,000 and not considered wealthy by any stretch of the imagination.

In order to service the financial implications of that, the premiums have gone up but people don't understand that. All they know is: "My God, I haven't had an accident. My insurance rates are going up. This is ridiculous. The government should get into the business."

The Chair: Mr Kwinter, I remember in 1984 I had a business with trucks, and any driver who would come on, the insurance company or the agent would check him out before I could hire him as a driver. They were checking people on what their driving records were at that time.

I noticed you mentioned earlier that agents were signing up drivers who were poorer risks. Did you find that as --

Mr Kwinter: No. I didn't say that. You misunderstood.

The Chair: Okay. That's why I'm just clarifying.

Mr Kwinter: What I am saying is this: There's no question that if a driver has a poor record, that will come out. They will do a check, they will find out his moving violations, they will find out any previous claims, they will do all of those things and he will get rated accordingly.

The Chair: Higher.

Mr Kwinter: Yes. The insurance companies have a rating system based on the risk of that particular driver. What I am saying is that there are also cases, and I was amazed at the number, where the driver has a good record. He had no problems. The agent he was dealing with had a problem with the insurance companies. The insurance companies would not take any of his risks because they'd had bad experience with the agent.

The Chair: With the new driver. Is this what you're saying?

Mr Kwinter: With a new insured, not necessarily a driver. But what would happen is that instead of this agent coming clean and saying to his client, "Listen, I'm sorry. I'm having problems with my underwriters and I can't get the insurance. Go see someone else, because he'll get you a deal," he would tell the person, "Sorry, I'm going to have to put you in the Facility." As I say, if the person had any kind of smarts about him, he'd say, "That's ridiculous. Why would I be in the Facility? I've never had an accident," and go somewhere else.

The Chair: This is what I didn't understand.

Mr Kwinter: Yes. But I'm just saying that, unfortunately, that was happening. People were put into the Facility, and now the studies have shown that there are people in the Facility that shouldn't be there. But they're there notwithstanding, and these are some of the things that have to be addressed to make sure that the people who are in the Facility genuinely belong there.

What happens is that this is the way the system is working. It is very simple. In Sweden they have a government plan but it's a little different. What they do is that the insurance companies are allowed to make a 3% return on their investment. That's all they make and they're quite happy to make that.


In our system it's really a matter of dollars and cents. There's no free lunch. They're saying: "Someone has got to pay the cost of servicing this pool and this is what the cost is. If you want to reduce that, then you have to reduce the service, what the payout is." That's where the crux of the problem is. What you're talking about here is saying, "Okay, we're going to restrict our payouts."

I'm not telling any tales out of school, but when Bill 68 came about it was worked backwards. The way it was worked backwards was, given the crisis atmosphere of the insurance problem at the time, what would be the politically acceptable increase that everybody could live with? Whether it was 5% or 6% -- I can't remember what the figure was we came up with, but we came up with a figure -- they said, "Okay, if we can keep those increases at that level, then politically it would be acceptable." Then you have to work backwards. You say, "If that's the increase you want, then let us restrict some of these potential expenditures out of this pool of money." That's what we're wrestling with now.

What I'm saying to you is that notwithstanding what you may feel about the OMPP, it was an attempt to satisfy a political imperative where people in Ontario were demanding a reduction, or certainly a capping, of the rates with the kind of service they were going to get. It's as simple as that, a very simple proposition. The trick was to get the industry, the regulators and the public to buy in to what was the minimum acceptable standard that could be sold to meet those criteria.

No one, I can tell you, nobody thought this was the perfect solution, but it was the right solution, we thought, at the time. But built into that -- and this is critical -- was: "Let's take a look at it in two years' time. Let's see if it is totally meeting the criteria. Let's see if there can be some adjustments. Let's see what has to be done, given our experience."

What you have, and I'm trying to be as kind as I can, is a situation where if there's one single issue that identified the NDP to the people of Ontario it was its support of government car insurance. When I was out campaigning in 1987, I had bus drivers stop their bus. They'd see me on the corner and come out and talk to me. They said, "What are you guys going to do about government car insurance?" I mean, it was the one issue that crossed all party lines, I want to tell you. Your colleague from Oshawa, Mike Breaugh --

You know, Bob Rae stood up and he'd gone from 25 seats to 19 and declared it was a victory. He was the evil of the two lessers; he had 19 and the Conservatives had 15. The public support for the NDP in that election went up by 1%, but it was the one issue that identified the NDP. They had billboards. They had bumper stickers. They had one issue -- Peter Kormos is there -- so that people could say, if asked, "What do you know about the NDP?" regardless if they had any political awareness or any smarts at all, "The NDP is going to bring in government car insurance."

It was a telling campaign and it was the one issue that really focused attention on the party. So what happens? You get into government and you don't do it. To my mind, if you're not going to do what you said you were going to do -- I mean, I can understand that, because, as I say, I had seen all of the factor. If it had made sense we would have done it. We didn't think it made any sense, but you may think it did make sense. But I feel Bill 164 is an attempt to try to salvage some political capital: "We can't deal with Bill 68, because that would be an acknowledgement that Bill 68 is okay except for maybe some adjustments. We're not going to bring in government car insurance, because it doesn't make any sense, so let's bring in Bill 164."

What you've done is you've screwed it up, because there is nobody who is buying into this thing. It is complicating a problem, it is creating problems that weren't there and it is creating more problems than it is solving.

The parliamentary assistant, in his response to the member for Dufferin-Peel, was saying, "While we're spending these six hours debating..." and he listed all the terrible things that were happening to people out on the highways. What he didn't say is that in that same six-hour period, if Bill 164 were enacted, all these other complications would be happening at the same rate of speed, and they're far worse than the problems he's outlining.

The situation is that we have a bill that I think is poorly conceived. I don't think it addresses the problem, and I understand it's a problem. If this had an easy solution, it would have been resolved long ago. It is very difficult, but in order to resolve it, this is not the answer. As a result, my colleagues and I are not going to support it and we're not going to amend it, because it's an exercise in futility.

It is a bill that is there for the wrong reason. It is not meant to address the problem of the people of Ontario who are having problems with their insurance; it is meant to somehow or other save political face. I say to you with all respect that our time could be better spent addressing the real problems of the people who are being disadvantaged by some of the problems this purports to address but doesn't.

Again, I understand the sensitivities about Bill 68 and what people think about it, but I can tell you, from a person who lived in the crucible of the insurance crisis, it has calmed down dramatically. You hear very little about it. Most people are relatively happy. No matter what plan you have, you're going to get somebody who feels they're not quite covered, but I think Bill 68 has served the people of Ontario reasonably well. Without question, there can be some constructive changes to it, but there is built right into it the provision to do that, to take a look at it after two years and say: "What's our experience? Should we change this or do that? And let's do that." But that isn't the case. What is happening is, for strictly political reasons, you're saying, "Bill 68 is a disaster, it's terrible, it isn't doing what it's supposed to do." And what are you bringing forward? A bill that is infinitely worse. Although I haven't been at all the hearings, I have read the comments that were made, and I haven't seen a bill that has so little support.

I say to you, Mr Chairman, in closing, I think we would be well advised to address the basic problem of what we're doing here as opposed to fiddling around with particular amendments.

The Chair: Okay, Mr Kwinter, I gave you quite a bit of latitude on section 1. Mr Harnick.

Mr Harnick: Mr Chairman, I want to respond to a few of the remarks made by the member for Wilson Heights. He indicated -- I think we have to put this in perspective -- that there's nobody who supports Bill 164, and he's quite right about that, other than the government members who are here today. But if we put this in perspective, there weren't very many people --

Mr Winninger: Professor Trebilcock.

Mr Harnick: Well, hear what I have to say, because you may not disagree.

Mr Winninger: He supported it.

Mr Harnick: He supported it with some qualifications.

Mr Tilson: You people invited him too.

Mr Harnick: Yes, and you people invited him. You had to go out and find him. He didn't come forward on his own. Professor Trebilcock changed his opinion considerably in order to accommodate the government. At any rate, hear what I have to say, Mr Winninger, because I suspect you may not disagree with me in some respects.

Mr Kwinter talked about very few people, almost nobody, accepting Bill 164, and I tell you that no one accepted Bill 68, the Liberal predecessor, other than the insurance industry. There was not a single interest group that came forward during the Bill 68 hearings to support that bill other than the insurance industry. I know because I was here watching.


But let's go back and talk about a couple of the things that my friend spoke of earlier. He spoke of the Brampton case where the young boy was badly injured and received a judgement for $5 million or $6 million. The Chairman quite astutely said, "But no one ever had to pay any money out for that." You're absolutely right.

The next case my friend the member for Wilson Heights talked about was a case by the name of Borland v Muttersbach. It's a case where there were multiple fatal injuries, and it was a claim that was made under a special endorsement form called SEF 42.

Let me explain so the members of the committee understand this. SEF 42 was a special endorsement that people had the option to purchase to cover themselves in the event that, if they were involved in an accident and the person who was at fault didn't carry enough insurance, they could claim excess coverage under their own policy. So people bought that extra protection from their own insurance company. But the wording of that section was written by the insurance industry. It wasn't written by the government. It was written and included in the policy of anybody who purchased it by the insurance industry, and the insurance industry made one heck of a mess when it wrote that section, because it didn't make it clear that if you had to call on that, it was only one claimant who got the pile of money, or that it was prorated.

What happened in Borland v Muttersbach is that every claimant made the claim and the court said that every claimant was entitled to it. So where the insurers felt they had a $1-million risk, they ended up having a $5-million risk, and the reason they got into that problem was because of their own bad drafting. It had nothing to do with the government of the day. It was the bad drafting of the insurance industry.

So what did the insurance industry do? They got rid of SEF 42 and they created SEF 44 so they would never run into that problem again. They closed the loophole that they themselves created.

So when my friend refers to the Brampton case, I tell you that not a nickel was paid on that case, and when my friend refers to the $5 million that was paid out under SEF 42, that was paid out totally because the insurance industry screwed up.

As a result of those two things, the insurance industry said, "We have a crisis." The insurance industry then played hardball with the Liberal government. They said, "We have a crisis. We're going broke. We've got these big judgements coming down. We can't handle it," and they put the squeeze on every consumer of automobile insurance and other forms of insurance that existed in this province. They did it to schools, they did it to playgrounds, they did it to community services and they put the screws on every consumer who had to get auto insurance.

Mr Winninger: A manufactured crisis.

Mr Harnick: Exactly. It was a manufactured crisis, because I will tell you -- and I appreciate Mr Winninger's help -- that if the business of automobile insurance and other forms of casualty insurance was so awful in Ontario, why has the insurance industry fought so hard to remain the carrier of automobile insurance and other forms of insurance? If the business was so bad and all they could do was lose money, they would have been happy to walk away from it. They would have been happy to have a government come along and take over their industry because it was a loser, and no bookie wants to back a loser.

But that's never happened. The automobile insurance industry has spent millions and millions and millions of dollars justifying its staying in the business. They then manufactured an insurance crisis that the Liberal Party bought into. They bought into it hook, line and sinker.

The Liberal Party that always portrayed itself as the party that looked after people, the party that looked after individuals, the party that looked after the disabled, the party that didn't deal with big business, the party that really was in it for the little guy, the party that really cared; that's how the Liberal Party portrayed itself.

What did they do when the screws were put to them by the insurance industry, as the insurance industry was putting the screws to all the other consumers? What did the Liberal Party do? They bought into a plan of automobile insurance that was the toughest, meanest, most miserable threshold no-fault scheme that existed in North America. They did it despite the Osborne commission, which told them not to do it, and despite the commission that was set up after Osborne, which told them not to do it; they did it anyway. This party that portrayed itself as the good friend of all small people, all little people, all consumers, was the party that took away the rights of innocent accident victims.

So I have to laugh, although it almost makes me want to cry, when I hear the Liberals saying: "Our plan's better than your plan. We only started to hurt the innocent accident victim. You guys are really finishing them off." I've got to laugh when I see that people are fighting about degree: "We're screwing them less than you're screwing them." It's absolutely unbelievable. Here we are sitting around this table, and I'm watching the NDP and the Liberals fighting over who's hurting the innocent accident victim less.

"We're hurting them less than you. We just took away their right to sue unless they were permanently and seriously injured, and if it's a psychological injury, they don't count any more. That's what we did. But you guys are even worse," they're saying, "You guys went one step further. You guys are going to take away the right to sue and at the same time you're going to take away economic rights. So therefore you guys," the NDP government, "are worse than the Liberal government."

You guys are tripping all over one another to see who hurt the innocent victim worse. You both destroyed the innocent victim.

Mr Paul R. Johnson (Prince Edward-Lennox-South Hastings): Who was in power when things went all crazy?

Mr Harnick: You know what? The Liberals started it, and you guys are finishing it off.

Mr Johnson: No, before the Liberals got here.

Mr David Winninger (London South): We're improving on the OMPP.

Mr Harnick: No, I don't think you are.

The Chair: Order. Mr Harnick has got the floor. I would use a term other than that one you used, because this could be going into schools, and we just don't want it to show up that way.

Mr Harnick: I apologize for that, but it's one of those topics I get rather agitated about.

The Chair: I know you were, so I didn't want to repeat the word.

Mr Harnick: I think about the guy who comes in to get some legal advice, a young guy who stepped off the curb and got hit by a car.

The Chair: He got hit; that's the point I want to make. That other part, it could be a legal term, but I've never heard that term being used.

Mr Harnick: You stop me when I get to that next part, because I'm coming to it.

Mr Winninger: Point of order.

The Chair: Yes, Mr Winninger?

Mr Winninger: I was hoping that Mr Harnick would talk about some of the things the Liberal government gave the insurance industry that it never even asked for.

Mr Harnick: I'm going to leave that to Mr Winninger, because he's quite right about that. As a famous New Democrat said, the Liberal government was so deep in the pockets of the insurance industry, it was spitting out lint. In fact Mr Winninger's quite right; they did get more than they were asking for.

The Chair: I think that was Mr Kormos's quote.

Mr Harnick: I didn't know whether that was the word you didn't want me to mention.

The Chair: No, no, no, lint's nothing.


Mr Harnick: At any rate, I want to tell you about the guy who steps off the curb when the little picture at the corner says that he can walk. He goes to walk across the street -- the light's in his favour -- and he gets hit by a car and his knee gets badly injured.

The fact is that we have good doctors in the city of Toronto, as there are elsewhere in the province, and they take this young fellow, who's in his 20s and a student at the University of Toronto, over to the Toronto General Hospital and they put his knee back together. It will never be the same knee that it was. He'll never be able to engage in athletic activities as he did, but he's not going to be stopped from pursuing his education or from pursuing a good living. He just won't be able to be, athletically, as hard on his knee as he otherwise might have been.

But under the Liberal legislation, they say that that injury has to be "permanently serious." You know, the doctors fixed him up. There's a component of seriousness, but whether a court would say it's permanently serious, whether it goes far enough, nobody knows.

He comes in to a lawyer and he says: "What can I do about this? I've got a leg that's never going to be as good as my leg would have been but for the accident." The lawyer has to say: "Well, you know, you can lose. The Liberal government took away your right. They said you're an innocent victim, and innocent victims don't matter any more unless they're permanently seriously injured. If you don't climb that mountain of a threshold, then you're out of court. You lose, and not only do you lose, but you've got to pay the insurance company's costs if you can't climb that mountain of a threshold and you go into court to try."

What's the NDP position? The NDP position is quite simply that you can take that same action and you might get $15,000 or $20,000, but we're going to take it all back from you. We're going to take a $15,000 deductible. You might win, but you're going to end up with zero. Again, you're going to end up paying the costs of that big insurance company.

When I listen to the NDP and the Liberals talk about who debilitated the innocent victim more, I think it's tragic. Here are two parties that always portrayed themselves as protecting the innocent, protecting the injured, protecting the disabled, and you two parties, you two governments, are trying to say, "We hurt him less than you hurt him."

To add insult to injury, Bill 164 takes away the economic rights of innocent people. The great tragedy in all that is that you're taking money out of the pockets of the innocent to pay for those at fault. If you just sit back and think about it, the innocent person pays a premium. He pays that premium because he wants protection for himself and for his family, and he pays it with the understanding that if he's innocent, "At least I'm going to be able to recover what my actual damages are from the wrongdoer." That's what people think when they buy their insurance. I would defy anybody in this room to tell me that's not what they think when they buy their insurance.

I don't think there's anything wrong, in conjunction with that concept, with supplying realistic accident benefits. But the level of those accident benefits has to be drawn at the point where it's not forcing innocent victims to give up what's rightfully theirs to pay for the at-fault individual. That's all anybody is asking here.

That's all those innocent people who came here and made submissions are asking; that's all Nigel Gilby was asking when he came here with a series of examples; that's all the Canadian Bar Association were asking when they came here with a series of examples of what happens to innocent victims when they are injured: Draw the level of accident benefits at a point where you're not taking the rights away from innocent accident victims.

You know, the measure of who really is the person who's going to be said at the end of the day to look after innocent accident victims, it's going to be the government that finally comes along and restores the right, as it traditionally promised to do at election time. Election time is becoming a time when you just know, as soon as the call for an election occurs, that the NDP is going to be saying, "Restore the right to sue for innocent accident victims, that's what we're going to do." You know they're going to talk about 60% funding for education. Those are all the traditional things that are issues in every election now.

The measure of whether the NDP or the Liberal Party is true to its word is which one ultimately decides to keep the promise and restore the right of innocent victims to sue instead of standing in this forum trying to best one another and saying, "We hurt innocent victims less than you did." I think that's going to be the measure of which party really looks after the innocent accident victim.

I can tell you that my party has been consistent. We say: "Take the OMPP because it has realistic levels of accident benefit coverage to look after those who are at fault. But lower the threshold so that the guy who stepped off the curb and got hit by the car and received a serious injury does not have his rights taken away from him."

It's really as simple as that, because that's a plan with a lower threshold that wouldn't be taking from and robbing the innocent accident victim to pay for the at-fault individual. What the NDP plan is doing is raising those benefits so high that they have to take another right away from innocent accident victims, and that's the right to claim economic loss to pay for the enhanced accident benefits that the at-fault motorist is going to get. What you people are doing is hurting the innocent and making the innocent pay over and over again for the at-fault motorist.

I just don't understand why you want to do that. I just don't understand. Nobody has said why they want to take money away from the innocent victim at the hands of the at-fault motorist. Why do you want to do that? Surely if you're going to pass this legislation and you're going to gut the OMPP, you owe it to innocent accident victims to tell them why you're taking more rights away from them to pay for the at-fault individuals, to pay the at-fault individuals even more than the OMPP is paying them.

You owe us, you owe innocent victims that courtesy, at the very least, and you owe it to innocent victims to take this back to the drawing board and review it and help the innocent, because that's the promise that you made. Your promise was to help the innocent, not to take more rights away from him, not to make him buy optional coverage. Your obligation is to give him back his rights and not make him pay even more for the benefits that your new plan is giving, as opposed to the Liberal government's plan.

That's all anybody's asking. The fact that you can be so callous about it, the fact that you can get into a floor fight here with members of the Liberal Party to see who hurt innocent accident victims less or more -- I don't know which causes more pride -- the fact that you can do that is shameful. You're not helping innocent victims.

Mrs Mathyssen shakes her head at me, but I hope, in shaking her head, she can tell me why she wants to hurt innocent people. I hope that she can tell me why she wants to take more rights away from the innocent victims than the Liberals took. Why do you want to do that? Please, help me out. I must be on the wrong wavelength. I just wish somebody from the government would tell me why you want to do that.


There are a couple other issues I want to deal with. I received a very interesting letter from a woman who was involved in an accident. I'd like to read what she says, so you can understand this from the innocent accident victim's point of view. I know Ms Mathyssen now is taking the chair and I want her to explain to the woman who wrote this letter why you want to take more rights away from her.

What she says is: "On July 22...I was involved in a two-vehicle accident at the intersection of Arthur Street and the expressway in Thunder Bay, Ontario.

"I was proceeding through a green light at the speed limit of 80 kilometres and wearing a seatbelt. As I entered the intersection, a supercab truck pulling a fifth wheeler made an illegal left on a red light opposite of me, crossing my path. When the car stopped spinning around after the impact, I never moved because I realized something was very wrong with my back.

"I was put in a body splint by the ambulance attendants and rushed to McKellar General Hospital where I lay in emergency for nine agonizing hours awaiting examination and X-ray results. They informed me that I had broken my back in two places, my T-12 (thoracic 12) and L-1 (lumbar 1) vertebrae in the middle of my back, and was admitted to the surgical wing. The other couple, I found out, were from Illinois here on a fishing trip and they sustained no injuries to themselves or their truck. They were charged by the OPP and went on their way. There were no apologies or inquiries made on my welfare.

"I lay in the hospital for two weeks, feeling fortunate for not being paralysed and not needing any immediate surgery -- yet somewhat frustrated that my summer and my life had been disrupted like this. During this time, my parents also took time away from the farm in Saskatchewan to travel to Thunder Bay to check on my physical condition. The next four-and-a-half months involved a brace, many days lying on my couch staring at the ceiling of my apartment, many painkillers, physiotherapy and bills having to be paid.

"Under the current Ontario laws on insurance, which are `no fault' (aka `no fair'), you are not entitled to sue the other party for anything, ie, loss of wages, money lost on your vehicle."

She says that her Mazda was bought for $12,000 and she got $8,500 for it, ended up owing $2,400 on the bank loan after it was written off. She had no car but she had to continue making payments. Also, she couldn't sue for any pain or suffering "you may go through as a result of someone else's negligence. The only way you can sue for anything is if you lose a limb or are paralysed." That's the way she describes the generosity of the Liberal legislation.

"The no-fault system will pay only up to 80% of your wage in the event of an accident. Because I'm employed by the province of Ontario as a correctional officer, and indirectly through my benefits I'm covered 75% pay already on sick benefits, they only had to contribute 5% to make up the difference."

That's why the insurance industry likes to be in auto insurance, because it collects a full premium. It doesn't pay out anything for loss of income or pain and suffering, because you haven't climbed that mountain of a threshold. What did they pay out? They paid out 5% towards this lady's wages. And we wonder why the insurance industry fights hard to stay in the business that it tells us is making it poor.

"Because of my decent physical condition before the accident, I recovered to a workable state by December 2, 1991. At this time, I resumed my duties as a correctional officer at the Thunder Bay jail. Even though I am working again, there has already been one four-day period I could not, which was related to my injury. I put my back out folding a sweater. The doctor at emergency informed me that this would most likely happen once in a while, probably for the rest of my life, because a back injury almost always recurs.

"Because my back never gave me any problems before this accident, this becomes very frustrating. After 18 months, there isn't a day that goes by that my back doesn't hurt. It has altered my life for ever, and it's annoying that it takes three times as long to do a sink full of dishes, vacuum my house or wash the floor. It's hard to drive for long distances, especially as a passenger (as most passenger seats do not have lumbar supports) or ride horses or sleep comfortably at night. I have to continually maintain my weight, which was always easy to control before, because I exercised at a vigorous pace. Now I've had to slow down because my back just can't take it. One day of too much exercise can cause three days of excessive pain. This is frustrating, which means I have to always watch my food intake. I worry about the strain of pregnancy, if it happens, and how my back will manage that.

"Also, since the accident, my right hand has periods of unusual sensation, tingling at times, and my grip isn't as good. Of course, my doctor says he can't link it to the accident, but it never occurred before. My TM joint" -- that's temporal mandibular joint -- "in my jaw now clicks once in a while and has locked on occasion if I yawn. Once again, it can't be proven, but my dentist says it's most likely from the impact.

"Please don't misunderstand. I am grateful to be alive and not paralysed. I thank God almost every night for this. I just don't feel it's fair that because I was at the wrong place at the wrong time, I should have to suffer any more than the injuries that I sustained. The man that caused the accident only had to pay a $250 fine. I've had to pay -- financially, emotionally and most of all physically -- for something that wasn't my fault. The insurance companies say this is `fair." Does it sound fair? They say that the people of Ontario want this system. Why would anyone want an unfair system? This is one person (I'm sure of many) that does not want this system.

"They have gone from one extreme to the other. I should not have to pay for someone else's mistake, just because the insurance companies of this province have been spoiled for years. They have been charging unreal premiums, but somehow forget that we pay those premiums to benefit us in case of an accident -- not them. Somewhere along the line -- July 1990 -- the Liberals brought in an insurance policy that protects the guilty, by saving them and not the victims of circumstance.

"Following is a diagram of the accident." She tells me how the accident occurred. "If there is a need for anything more detailed, please do not hesitate to ask. For pain and suffering, I cannot begin to guess at a figure for that, though I know there are stats someplace that lawyers and insurance companies have access to of precedents set for injuries such as mine.

"I was asked to write down what I really want. I want this no-fault insurance changed. And I really want the right to sue. Barring this, I would at least like to be offered a fair settlement of money that includes the actual out-of-pocket loss I have incurred."

We know that under the NDP plan, not only is she going to be in the same situation but she ain't getting the out-of-pocket loss either. So that's your contribution, to heap more misery on innocent victims.

"I'd like to thank you very much for listening to my parents and taking the time to assist me with my obvious complaint and problem. I appreciate it very much."

It's signed "Billie J. Helmkay."

She's asked that she not be pestered by the government, which might want to contact her, but if you do want to contact her, you can do it through Mr Kormos, because he's the person in the NDP caucus who's perceived as being the only one who cares for innocent accident victims.

That's why I'd like to ask Mrs Mathyssen, who sits in the chair and shakes her head and kind of giggles when we talk about innocent accident victims, how do you answer this lady? How do you tell this lady that your plan is not righting the wrong of what the Liberal government did? How do you tell this person? How are you going to deal with it?


Are you going to tell them: "We're going to take away your right to sue by taking $15,000 of your money up front, so you'll end up getting about zero. To boot, you're not going to get your out-of-pocket expenses either, because we've totally eliminated that chance"? Is that what you're going to tell her? I wish somebody in this room would tell me how you explain this to innocent victims. How do you explain why the government wants to take even more away from innocent victims than the Liberals took? You're the party that fights with the Liberals because you're both trying to best one another about who looks after the common person. How do you explain this?

I appreciate that Mr Johnson's tired and he's yawning and I'm boring him, but you're the government, you're the people with all the answers.

Mr Johnson: You've told this story 20 times.

Mr Harnick: You're the people with all the answers. I wish just one of you would tell me how you answer these questions. How do you answer an innocent victim?

Bob Rae was the person who used to go around the province with Peter Kormos and say, "It's wrong to take rights away from innocent accident victims." Bob Rae appreciated the difference between a motorist who was at fault and a victim who was innocent. What has happened to Bob Rae? Why is he doing this to innocent people? Why is he making their lesser rights pay for the benefits that at-fault individuals are going to get? Why is he raising the limits by taking money away from innocent people so that he can say at the end of the day, "We're paying enhanced benefits"? Why is he taking the money from the innocent to do that?

Please, as an opposition member I'm pleading with you, tell me what the answer is, because people are asking me and I can't answer them. Bob Rae can answer them. Go and ask him why there's no longer a difference in his mind between the at-fault motorist and the motorist who's innocent, the victim who's innocent. Ask him why it doesn't matter that one car crosses the centre line and hits another car and people are badly injured or killed and there's no longer a differential in the way we treat the innocent and the way we treat the guilty. Ask him for me, please. I want to know what happened to him. I want to know why he changed his mind.

I want to know why he couldn't go to the Sheraton Centre and talk to that same crowd he spoke to in May 1990, when there were over 1,000 people cheering because they heard a leader in Ontario say that he was going to support the rights of innocent victims. Ask him, Ms Mathyssen and Ms Haeck, Mr Winninger and Mr Klopp, Mr Johnson and Mr Hansen, and Mr Owens. Ask him why he's changed his mind and ask him why he's taking money from innocent victims to pay those who are at fault for accidents.

Nobody denies that they should get something that's reasonable, but don't give them so much that you're taking away the rights of the innocent to enhance their benefits. Ask him, because I want to know the answer and I deserve to know the answer, as does Mr Mancini and Mr Tilson and everybody else who's come before this committee. We have a right to know why you're doing this, why you're taking more rights away from people, all in the name of enhancing benefits paid for by the innocent at the hands of the guilty. Why are you doing it?

It's not funny. It's something that deserves to be answered. This bill should not proceed one inch further, not one inch further, until those questions are answered, because this bill does not have the morality in its pages to justify going forward until you answer that question and until you tell Ray Rempel why his son would be treated worse off under this scheme than he was treated under two schemes ago. You deserve to tell him that. You owe it to him. This bill should die right now until you can answer those questions and until Bob Rae comes here and tells us why he changed his mind.

You know, I have great respect for the minister who's carrying this bill, because quite frankly, he's had a tightrope to walk. He's had a tightrope to walk because someone's changed his mind. The Premier's changed his mind, and the minister has been saddled with a task that's impossible, a task that can't be completed without hurting the innocent. I think Bob Rae should come here and Bob Rae should tell us exactly why he's done this to this minister and to the predecessor to this minister, and to the staff that toils trying to justify this immoral piece of garbage. That's what it is, and it'll remain that until you can justify to innocent accident victims why you're doing it. The bill shouldn't proceed until everyone in this room understands why it's proceeding and why innocent victims are being hurt.

I'd just like to go back, for another moment, to what we really should be talking about, and that's section 1.

The Chair: I have given all members a little bit of latitude.

Mr Harnick: I appreciate the Chairman allowing me to digress the way I have, but it absolutely burns my behind, Mr Chairman, to see your party and the Liberal party arguing with one another to see who took more rights away from innocent accident victims. I think that argument is a curse on both your parties and a curse on everybody who supports it, and I think that you should all be ashamed because none of you can face innocent accident victims and look them in the eye and tell them why you're doing what you're doing or why you did what you did.

But at any rate, I'd just like to go back to section 1. I'd like to read a letter that's been filed as an exhibit. It's dated February 8, 1993. It's from a gentleman by the name of Peter Webb, and Peter Webb needs no introduction to anyone in the insurance field. He is probably the dean of insurance law in the province of Ontario. He probably knows more about insurance law than anyone in this province, and I say that almost without hesitation, Mr Chairman.

In his letter of February 8, 1993, he talks about the weekly benefits under the no-fault benefit or accident benefit or statutory accident benefit schedule that's referred to in section 1. I'd just like to read what he says. I'm not going to read the whole thing; I've probably gone on too long as it is.

Mr Tilson: Oh, no.

Mr Harnick: But he says: "The provisions relating to compensation for loss of income are a horror of complexity," and I can tell you, if Peter Webb doesn't understand this material, people like Charles Harnick and David Tilson and Remo Mancini and even Mr Winninger couldn't understand this.

Mr Winninger: Even me?

Mr Harnick: Mr Winninger is on the side of the government, which has all the minions of people who explain it to him. We don't have that luxury, and I can tell you that if I called Peter Webb and he told me he couldn't explain it to me, I'd be in real trouble, because as I said, Peter Webb is the dean of insurance law in this province. There's no one who knows more about automobile insurance law than Peter Webb.

He says, "The provisions relating to compensation for loss of income are a horror of complexity." He doesn't just say they're complex; he says they are "a horror" -- H-O-R-R-O-R -- "of complexity."


The Chair: That word is acceptable.

Mr Harnick: I hope by "acceptable" you mean that you agree it's a horror of complexity. If you do agree, as Chairman and a man of great stature on this committee, you'll go back and tell these minions of people who are responsible for this horror to correct it, to pull it, to hoist it before it's dropped in the laps of the consumers of this province.

He goes on to say:

"In addition, the limit of $1,000 per week falls far short of what many persons, including myself, would suffer in the event of total disability. Given that the persons who are proposing this legislation have decided to ignore the rights of such persons, it is inconceivable to me that they would not at least require the automobile insurers to provide optional coverage to their own insureds in excess of the $1,000 limit.

"At my age of 65, if it were not impossible it would be prohibitively expensive for me to obtain a standard disability policy which covers all manner of accidents and illness. All that I would want is coverage for loss of income as a result of injuries in a motor accident. Such coverage would surely not require a medical examination, and I would not expect age to be a factor. In view of the limited nature of such coverage, it would be far less expensive than a standard disability policy. Can you inform me why the right to obtain such insurance has not been included in the proposed legislation?"

I ask you, and I ask all the members of this committee, you're the people who represent the government, you're the people who are here to justify this legislation to Mr Webb. He pays taxes, he's a citizen of the province of Ontario and he's crying out for help. The letter was written on February 8. It's now a week later. Have one of you sat down with a pen and paper and written to Mr Webb and asked him for more information if you need it to be able to reply to him? Have any of you sat down and tried to write a letter to Mr Webb to tell him what you were doing in this regard to protect his economic loss in the event that he personally was injured in an accident? I'll bet you that not one of you people have even read this letter. It's there and it's an exhibit and it has been in your possession.

Let me go on to tell you what he says about fatal accidents. Again, Mr Chairman, I'm talking about the accident benefits schedule, which is what we're talking about in section 1, so I know you'll agree that I'm right on topic. I want to remind you and I want to remind Mr Winninger, who may not have been in the room when I brought this letter up, it's a letter from Mr Peter Webb, dated February 8, 1993. Mr Winninger would know Mr Webb, by reputation at least, as probably the most senior insurance lawyer in the province of Ontario.

Mr Winninger: I've seen his letter.

Mr Harnick: I knew you'd know him by reputation. In my estimation, there is not a more capable and more knowledgeable person when it comes to the issue of automobile insurance than Mr Peter Webb. He's given his phone number.

Mr Winninger: What about Bert Raphael?

Mr Harnick: Peter Webb and Bert Raphael are probably in the same class as the most senior insurance lawyers in the province of Ontario today. Peter Webb has given his phone number and I urge Christel Haeck and her compatriots to maybe give Mr Webb a call. You might learn something about auto insurance and you might learn why this bill is a bad bill, because I can tell you that people like Bert Raphael and Peter Webb know a whole lot more about automobile insurance than the people who wrote this legislation. The people who wrote this legislation probably are not capable of carrying Mr Webb's bag to court, quite frankly. Here they are writing the legislation and leaving Mr Webb out in the cold.

But let's see what the dean of insurance law says about fatal accidents. He says, "The limit of $200,000 in the case of fatal accidents is, to my mind, the most frightening provision in the proposed regulation." Now, I remind you that three paragraphs earlier he talked about the horror of the complexity of the regulations. Now he's talking about this as being even more frightening. "I assume that the government knows that, in many cases, this sum will compel the dependants of a deceased breadwinner to live in poverty or close to it, to say nothing of the lost opportunities for education of young dependants. Therefore I urge you to require the government to disclose what studies it may have to justify the sum of $200,000, particularly in the case of families of young breadwinners who had an expectation of many years of assistance from a father or mother." Listen to those words.

Let me tell you, let me tell every person in this room, that even the Liberals said, as they were taking rights away from innocent victims, "For God's sake, a fatal is different." If you're involved in a fatal, you've automatically crossed that threshold. You can't put people on welfare lines. You can't make them go and live in subsidized housing. I know that Ms Mathyssen doesn't like this. I know that Ms Mathyssen believes everybody should be in government housing. I know that's what she thinks.

But the reality is, people don't want to be in government housing. People want their children to have all the opportunities that they believed in. But with this piece of legislation, $200,000 will relegate a family of four to poverty. Is that what you want? Even the Liberals come out ahead of you people on this score. Is that what you want, a scheme that doesn't permit a family to have, if they're innocent, if their loved one and their breadwinner and their spouse and their father or mother was killed, you wouldn't want to be able to tailor to that family's actual loss what it really would have been like? Are you saying that you want to take that right away from that family? I can't conceive of it. I can't conceive that Mr Winninger would want to make a family of four lose a breadwinner and only receive $200,000 maximum, maximum.

Mr Winninger: What about life insurance?

Mr Harnick: Well, you know, Mr Winninger, life insurance is something that a lot of people don't have. A person who's earning $45,000 a year and has a spouse and two children may only have a policy of life insurance that's $100,000.

Mr Winninger: And we look after them.

Mr Harnick: Well, you look after them --

Mr Winninger: We may not look after the Charles Harnicks.

Mr Harnick: You know how you look after them, Mr Winninger? You look after them by sending them to a life of poverty, a life of government assistance.


Mr Harnick: Mr Winninger says that's not what Bill 164 does. Let me tell you, Mr Chairman, that a breadwinner, aged 35, with a spouse and two children, who's earning $45,000 a year, will qualify under this legislation for an award of less than $120,000. That's what's going to happen.

If the person who qualifies for that award is the guilty party, I can live with that. But I can't live with that in terms of the innocent party, because the innocent party, by having that right taken away from him, is forced into the position of paying so that the guilty party can receive $117,000. You know what's going to happen? Everybody's going to be living a life of poverty: $117,000 representing $45,000 a year for a person who's got 30 more years of income-earning capacity, and you're going to give them $117,000 when they're innocent.


For God's sake, get Bob Rae down here to explain why that's right, because I haven't heard the answers from you people, I haven't heard the answers from the parliamentary assistant, and I know that you can't believe in this stuff. You're here, you're occupying a seat and you're doing what you're told, but only Bob Rae can tell us why he's doing this.

I would like to know why Bob Rae wants to relegate a family whose breadwinner has been killed -- killed, do you know what that means? It means he's dead or she's dead. They're not there to look after their family any more. They've got a mortgage. They've got car payments. Where's the money going to come from? They might take that $117,000 and use it to pay the mortgage and to pay for the car, but they're not going to have any money left over to pay for the groceries, unless social assistance is where you want them to be.

Mr Winninger says, "Well, there's life insurance." There are teachers in this province who make $45,000 a year. They get $100,000 in life insurance as part of their employment package. Let me tell Mr Winninger that $217,000 for a person making $45,000 a year with a 30-year worklife expectancy is a pittance. I hate to use this word, but it's niggardly.

Mr Owens: That's disgusting.

Mr Harnick: That's right, it is disgusting, but that's parlance that you read in books like Huckleberry Finn and Tom Sawyer, and it's in the dictionary. It's so disgusting that the only way I can use that word is in relation to this particular piece of legislation, because this particular piece of legislation is the most disgusting piece of legislation that I could ever imagine. When the parliamentary assistant agrees with me that it's disgusting and agrees that it's disgusting to treat a family that way --

Mr Johnson: You say that about about every piece of legislation.

Mr Harnick: I don't feel for every piece of legislation like I do for this, because I'll tell my friend Mr Johnson that when a family comes into my office -- I make no bones about it; I still practise law, and I'm proud to say that, and I still spend full days at this Legislature, and I still get into my constituency as much as any of you do.

Mr Johnson: What does that have to do with anything?

Mr Harnick: Mr Johnson, when you have to sit across the table from a family whose breadwinner has been wiped out through no fault of his own and you have to explain to that family that all they're going to get is $117,000, because that's what the NDP delivered on its promise when you voted for it, it makes my heart cry out because I see in front of me a spouse and a couple of children who are human beings.

It may be hard for you to believe, but I've spent my life making a damned good living, and I'm proud to admit it, looking after people who have been injured and seriously injured in accidents. I've done my best under whatever system exists to put them back together. I'll tell you something, buddy, you're not making my job any easier when you present me with a piece of legislation like this and I have to try and put people's lives back together, because that's what I do for a living, and I'm proud of it. I'm proud of the people I've helped along the way. I'm proud of the fact that I've been able to make a good living at it.

Mr Johnson: Conflict of interest.

Mr Harnick: If all it is to you is a conflict of interest, that's fine. There's not a person in this Legislative Building who knows more about automobile insurance than I do. I'll tell you something else: There's not a person in this building, and I say this including the NDP side, who has had to deal with families that have been bruised and battered and upset because they've been in car accidents. Some of the people I've looked after can hit awfully close to home sometimes, and I'll tell you what they go through as a family.

If you think that's a joke, and if you think you're helping me put lives back together by presenting a piece of legislation like this, for goodness' sake, give me back the OMPP any day. At least there I had a fighting chance. At least there the table was almost equal. At least there I could help those who were seriously hurt who would never get better, who didn't have merely an interruption of three or four or five years of their life and their earning capacity. But here you're destroying everything.

Mr Winninger: You still can; you just don't get economic loss.

Mr Harnick: Mr Winninger says, "You still can; you just don't get economic loss."

The Chair: Mr Harnick, don't eavesdrop on the other side there.

Mr Harnick: No, they say it loud enough so that they can be sure I hear it.

The Chair: I can't quite hear them.

Mr Harnick: If Mr Winninger's idea of putting people's lives back together is taking $15,000 from the innocent so that the guilty, so that those who are at fault, so that the drunk drivers can go ahead and get enhanced accident benefits, you know what I say? I say that's sick. That's a warped mind. That's just sick.

Mr Winninger: You'd penalize the family of the drunk driver, would you?

Mr Harnick: You know what? I don't penalize them. I ensure that under the OMPP he's getting reasonable accident benefits, but I'm not going to take the money out of the pocket of an innocent victim to give it to the drunk driver so that the drunk driver --

Mr Winninger: Or his family.

Mr Harnick: -- walks away at the end of the day.

The Chair: Order. Mr Harnick, would you get back to --

Mr Mancini: The schedule of benefits.

The Chair: -- the schedule of benefits.

Mr Harnick: It's all in the schedule of benefits.

Mr Tilson: Right on.

Mr Harnick: Let me read it again. Let me read what the dean of insurance says. He says, "The provisions relating to compensation for loss of income are a horror of complexity." He then goes on to say, "The limit of $200,000 in the case of fatal accidents is, to my mind" -- and his mind is the mind of the dean of insurance law, far greater, in terms of knowledge and understanding, than that of Mr Winninger or of the minister, or of the Premier for that matter.

Mr Winninger: Or Professor Trebilcock, who has no financial interest?

Mr Harnick: You know what? Way more than Professor Trebilcock, because Professor Trebilcock probably would trip over the threshold door of the courtroom if he had to go in and try to protect a family. Peter Webb wouldn't trip over the door. Peter Webb will just tell you, "The limit of $200,000 in the case of fatal accidents is, to my mind, the most frightening provision in the proposed regulation."

Professor Trebilcock didn't come here on his own. He didn't volunteer. He was phoned by the minister and asked to come here. I know that for a fact he was asked to come here.

Mr Mancini: How did that conversation go?

Mr Harnick: I think it went sort of like this, Remo.

The Chair: He was using a cellular phone then.

Mr Harnick: The phone rang and Professor Trebilcock picked it up and found a minister or probably even a parliamentary assistant on the end saying, "Professor, we're really desperate here and we know you've dabbled in no-fault studies."

Mr Tilson: "We need help."

Mr Harnick: "We need some real help. You know, the Premier's been a good friend to the University of Toronto over the years and he's a graduate of that school. We need help. Look, we know that you have to manipulate some of your writings and some of your thoughts a little bit because you never believed before you appeared or were about to appear that it was right to take away economic loss, but if you can just sort of manipulate that a little bit, you sure can help us out."

Mr Mancini: I assume the conversation went like that.

Mr Winninger: I think he's losing it.

The Chair: Mr Harnick, could you get back to reality again, please?

Mr Harnick: The reality is that when Peter Webb says, "The limit of $200,000 in the case of fatal accidents is, to my mind, the most frightening provision," you know what I think about Professor Trebilcock? I say, "Boy, just once let Professor Trebilcock say: `I was the person who came over from the U of T to help my friend Bob Rae and to help the minister when they asked me to come over. I was the person who helped set that $200,000 limit so that we could be fair to everybody, so that you, a family that's lost your breadwinner, the most you're going to get is $117,000.'" I'd like to see Professor Trebilcock sitting in a room with that family and I'd like to see him justify what he did and justify these numbers.


The Chair: I think we're going a little too far there on his reputation. He was a witness.

Mr Harnick: That's right, he was. He was a witness, and witnesses --

The Chair: I think we shouldn't wind up discussing any witnesses in that manner.

Mr Harnick: I understand your point.

The Chair: You might have a difference of opinion.

Mr Harnick: I have the greatest respect for Professor Trebilcock as a professor and as an academic, but Professor Trebilcock has never had to deal with injured people. He has never had to deal with a family which has been devastated by the loss of a breadwinner.

What about a husband and wife driving along on a Saturday evening, coming back from a social event --

Mr Tilson: Honey Harbour.

Mr Harnick: Maybe they have been at Honey Harbour for a conference. They're on their way back to Toronto and they're involved in an accident when a car crosses the centre line of the highway and hits them head-on and they're both wiped out. What's going to happen to those children? Where are those children going to find the financial wherewithal? They're innocent. They're innocent people.

The Chair: Maybe one farther: that the one gentleman had a heart attack driving and didn't have life insurance.

Mr Harnick: If the gentleman who had --

The Chair: I'm just hearing your response back on that one.

Mr Harnick: Maybe the gentleman who had the heart attack driving and couldn't keep his vehicle under control had a condition that said maybe he shouldn't have been driving to start with. You know what he would say if his --

Mr Johnson: He's dead.

Mr Harnick: Let's assume he didn't die. Let's assume -- well, we'll take the --

The Chair: I said he died. He had a heart attack and died.

Mr Harnick: Do you know what his widow would say if that vehicle crossed over the road and killed a husband and wife who had two small children at home? Do you know what she would say? She would say, "Thank God I had insurance to pay to look after those kids, because they were innocent." That's what responsible people say and that's why they have insurance. They have insurance not only to protect themselves, but so they can say, "I was responsible, and thank goodness I had insurance so that the damage I caused at least could be repaired and these people could be put as close as possible to where they otherwise might have been by a sum of money, and be looked after."

Mr Winninger: On a point of order, Mr Chairman: What about the wife and two small children?

The Chair: That's not a point of order. I know the Chair interrupted there. It wasn't the Chair's position either but --

Mr Harnick: The wife and the children of the heart attack victim are going to get no-fault benefits. They're going to get no-fault benefits, but they're not entitled to as much as the innocent victims. Mr Winninger cannot understand that. He won't understand that. I hope he's never the innocent victim of an accident, because he'll admit at that time that I was right and he was wrong. He'll admit it. He'll admit that.

Before I was interrupted by a point of order that wasn't a point of order --

Mr Winninger: I'm sorry. I thought it was. I stand corrected.

Mr Harnick: No, points of order come out of the rules. If it's not in the standing orders, it's not a point of order. You've been here a couple of years --

The Chair: Carry on, Mr Harnick.

Mr Harnick: -- and you should know that by now.

Mr Winninger: I was just following your shining example.

Mr Harnick: No, I don't say, "Point of order." I just blurt it out. I don't want to mislead people. When it's a point of order, it's in the rule book.

Mr Winninger: You just interrupt.


The Chair: Order.

Mr Harnick: It's interesting when people put to me the proposition of, "Well, what about the guilty party?" The reason people carry insurance is because in the normal course of things, if someone does something wrong in our society, if someone is negligent, if someone hurts another person, be it in an economic sense or be it in a physical sense, if it can be proved that he did something wrong, he has to pay for that wrongdoing in the form of damages and in the form of money.

That's a basic concept to our society and that's why we have order in our society. That's why we don't have people interfering in an economic sense with other people's businesses. If they could do that with impunity, they would do that because they would make more money. But we have certain controls in our society that have developed over years and years, and one of those is that if you harm your neighbour and your neighbour can prove that you were negligent, you're entitled to damages.

In terms of automobile insurance, there was a day when you didn't need insurance, because cars didn't go very fast and there weren't very many of them on the road. People drove, and if they got into accidents and harmed someone else, they were personally liable if it was their fault. As society became industrialized and we had more and more accidents, as Mr Kwinter said quite rightly, insurers knew they could make a buck by being the bookies, and that's a perfect analogy. They knew they could make a dollar by going ahead and laying off the risk, and that's why insurance stepped in to pay for people who caused harm to one another by their negligence. That's all that happened.

What you're doing by Bill 164 is taking this basic concept by which we live and totally obliterating it. You're totally obliterating it. You're saying that if you're in a car and you cause somebody damage, you don't have to pay. You're no longer responsible. If you're in a boat and you cause somebody damage, you're responsible. If you harm somebody's business, you're responsible. If you decide to dig a hole in front of General Motors and you hit the cable that supplies the power to go into the factory and General Motors is closed down for a week because they've got no electricity, you're responsible for that. You're responsible for the damage you cause, be it economic, be it physical, be it mental. You're responsible for that damage.

What you are doing is, you are changing a basic precept of the way society operates. You're doing it, and in the course of doing it, you're giving as much to the person who's at fault as to the person who's innocent.

There's nothing wrong with ensuring that the person who's at fault is properly and decently looked after. The OMPP tried to do that. For all my criticisms of the OMPP, the OMPP tried to do that. But you are going further. You're raising those benefits, you're giving the at-fault motorist even more and you're paying for it out of the pocket of the innocent victim.

I can't strongly enough suggest that what you're doing is morally wrong. It's morally wrong, and the Premier, who I knew in a totally different capacity before I came here, agreed with me. The Premier knew it was morally wrong, and if you ask him today, if you ask him the way he believed before he became the Premier, he will tell you. He will tell you that's exactly what he believed. You can't take away from the innocent victim in order to pay the person who's at fault. You can ask the Premier that. I invite every one of you to go and ask the Premier that.

The Chair: Mr Harnick, you've already gone through that. You're repeating yourself.

Mr Harnick: I'm sorry about that.

The Chair: I know the time's getting late.

Mr Harnick: It's almost my bedtime, sir.

At any rate, I'm very, very concerned about what you're doing to innocent victims, and you know, when you talk about accident benefits, and Mr Winninger, who's so concerned about making sure that the at-fault person receives as much or more than the innocent victim, I can't conceive of your concern being legitimate and honest when you provide both the innocent and the at-fault individual with a complex set of regulations like the regulations that form part of this act.


It's very regrettable that accident benefits are part of the regulations and that we can't go through those regulations clause by clause, because it may well be that we could improve them to the point that they were understandable.

Everybody thinks we're here wasting time and talking about insignificant matters, but the fact that subsection 1(1), clause (a) and clause (b), and subsection (2) deal with statutory acts and benefits and the schedules is the only opportunity we as a committee will have to deal with the regulations, because they're found in these accident benefits -- or the accident benefits are found in the regulations. That's the only opportunity we as a committee are going to have to deal with the regulations and that's why the debate we've been having for the last two days is so important.

People may say, "All you're doing here, Mr Harnick, is wasting time; you're filibustering." Well, I don't find this a waste of time and it's not a filibuster. This is the only opportunity we as a committee are going to have to deal with the regulations, because they're not before us. Only the bill is before us. Only this section permits us the opportunity to talk about the regulations and that's precisely what we're doing.

Those regulations are some 68 pages long. The fact that we spent a couple of hours yesterday afternoon and today to talk about the 68 pages of regulations, which are far more significant to consumers of automobile insurance than the bill itself, is not something I think anybody should find to be untoward. There's nothing untoward about that.

We have to deal with these regulations and I know that in the subcommittee meetings we urged the government to permit us the opportunity -- and I know it's unusual; it's not the usual way things are done around here -- to deal with the regulations before this committee just as we are dealing with the bill. But we were denied that opportunity and in fact we never got to deal with the regulations on a clause-by-clause basis, and I gather we're never going to. These are things that the government --

The Chair: Mr Harnick, we're trying to get through section 1 here first.

Mr Harnick: I'm right on topic. I'm right on topic because you see, sir, section 1 talks about no-fault benefits; it talks about statutory accident benefits and all of those benefits, Mr Chairman, are found in the regulations.

That's why this debate is important, because section 1 is the only opportunity we have to deal with the regulations and the regulations are the guts of what are going to affect every insured individual in this province. That's why the debate we've had in the last day and a half is so important, because the parliamentary assistant wouldn't permit us to file the regulations and deal with them on a clause-by-clause basis as well.

I remind this committee of what Mr Cooke said when he appeared in Hamilton, dealing with these accident benefits. He said, "Lower the threshold." He represents the Dominion of Canada, probably the biggest Canadian-owned insurer in the province right now. What he said was: "You can lower the threshold of the OMPP and the insurance industry can live with that. Lower it on a verbal basis and you'll be doing the right thing." But he said: "You don't have to rush into changing the regulations. You can do that over a period of time. You can do that gradually. You can do that in a way that would be far less complex."

Once you make the change to Bill 164 to lower the threshold, which is something I think you want to do, because I think you want to at least be able to walk out of here at the end of the day and say, "To some degree we kept our promise to the electorate and we gave back the right to sue," but if you merely lower that threshold in a verbal sense, the regulations can be looked at on an ongoing basis. The insurance industry, the lawyers, the rehab consultants, the Advocacy Resource Centre for the Handicapped can all have input into the day-to-day development and change in the regulations, in the statutory accident benefits schedules or, as they're now called, in the no-fault benefits.

But Mr Cooke was quite clear. He said, "If you don't want another crisis in the insurance business" -- and you know, the member for Wilson Heights and I started this debate by talking about the insurance crisis. One of us, and I think legitimately -- I respect what he says -- believes that it was real. I believe it was real to a degree and manufactured to a greater degree.

Mr Kwinter: In hindsight.

Mr Harnick: That's in hindsight. I agree with that. Once we have time to reflect and to review -- and I'm glad he said that, because I suspect his party very much believes that today and very much regrets the high threshold that it's chosen. But at any rate --


Mr Harnick: -- and you know, you can be cynical about that, Mr Klopp, but it's hard to be cynical about it when what you're doing is worse. It doesn't sit well on you to be cynical about the Liberal bill, because what you're doing is worse. That's why your cynicism is ringing hollow, because what the NDP is doing is worse than what the Liberals did. But at any rate, we started this argument talking about --

The Chair: I was listening; I wasn't arguing.

Mr Harnick: Mr Cooke has given us a method to avoid what a number of the deputants who came before this committee have said is ultimately going to happen, and that is another insurance crisis. This one, I tell you, is going to be real, it's not going to be perceived and there's not going to be any hindsight necessary to know what's happening. Mr Cooke has given you a very realistic way out of your difficulties.

Put the brakes on the regulations. Put the brakes on the statutory accident benefits and proceed with the bill itself. Lower the threshold. Lower it in a verbal way so that you can be responsive to what the lawyers said, what the victims said and indeed what the insurance industry said, and put the brakes on the regulations.

There are better ways to handle the regulations. They don't have to be done this second. They can be done over time, and if they're done over time, they'll be done right. They'll be done with consensus. The experts in each area will tell you the best way to deal with them.

When we talk about rehab, the experts in the rehab field will tell you, "Here is the best way to deal with rehab under the regulations, under the statutory accident benefits or the no-fault benefits." I want the Chairman to know that's what clause 1(1)(a) and (b) and subsection 1(2) are all about.

Then we could go ahead and deal with issues such as weekly benefits, and by doing that we can see where you have to draw the line, so that in order to give a decent amount of money to those at fault we wouldn't be going beyond the line and taking money from innocent people to pay for those who are at fault. We'd know where to draw that line and we could develop that properly over a period of time.

We could allow all those who cross that lowered threshold the right to claim for their pain and suffering and for their economic loss. That way, all of the criticisms of this bill could be answered. We could go to section 24 of this act and we could make those corrections right now. This bill, I tell you, would go through this committee -- I don't want to use a crude expression -- quickly and we would be out of here by Thursday afternoon. It would be done.


You could walk out of here with a measure of respect and say: "We tried to keep our promise as best we could, given the constraints of premium costs that exist. We've been responsive to what the victims said, we've been responsive to what the insurance industry said and we've been responsive to what the victims' representatives said."

That's what you can do, and you can develop these regulations in a way that would be proper for consumers. In the meantime, you'd have a system that's up, running and working and that wouldn't be leading towards another insurance crisis. Because that's where you're going, that's exactly where you're going.

I think that it's very important for the government to say in the next 24 hours: "There's a way out of this mess. There's a way out of this dilemma we've put ourselves in. There's a way to get this bill through that committee so that we can walk away at the end of the week and say, `We kept our promise.'"

That promise has to mean something to you people. You went door to door telling people about it. You got elected because of it. I'll tell you, the closer you were to the riding of Welland-Thorold, the more votes you got because of auto insurance. I think some of you are relatively close, as I cast my eye around the room. London isn't that far from Welland-Thorold. I tell you that the things Peter Kormos said in Welland-Thorold were heard in London and Middlesex.

Mr Winninger: They echoed around the world.

Mr Harnick: They were heard in Windsor and they were heard in St Catharines. They were probably heard in Prince Edward county.

Mr Johnson: No, I ran on the environment.

Mr Harnick: You ran on the environment? I think those people in Prince Edward county, seeing your record on the environment, probably won't elect you again next time. You better find something different to run on next time, because your record on the environment --

The Chair: Mr Harnick, could you get back on subject again. I just want to get the record straight. I did vote for Peter Kormos because I lived in Welland at that time.

Mr Harnick: And you know one of the reasons you voted for him?

Mr Hans Daigeler (Nepean): Are you going to do it again? That's the question.

The Chair: I live in Lincoln now; I moved out.

Ms Haeck: He moved. He's a smart man.

Interjection: I thought you were for the Tories.

Mr Harnick: I don't think they were particularly worried about the Tories, with the NDP coming off a huge majority. I think, Mr Winninger, the Tories were the furthest thing from your mind when you were running in London. They are going to be the closest thing to your mind next time you run, because that's probably how you're going to be unseated. You're going to be reminded --

Mr Winninger: You're dreaming in Technicolor, Charles.

Mr Harnick: You're going to be reminded, Mr Winninger --

Mr Klopp: Are we back to section 1 of this bill again?

Mr Harnick: -- of the fact that the accident benefits schedule that's in section 1 is not what you promised in 1990. It's not even close. What you promised to innocent victims bears no resemblance to this dastardly piece of legislation. I tell you, the closer you were to Welland-Thorold, the more votes you got. I'll bet you that Peter Kormos got Christel Haeck, running down there in St Catharines, more votes than she got for herself. You know that?

The Chair: Let's get back to reality and talk about section 1.

Mr Tilson: I think this is interesting. I want to hear more of it.

Mr Harnick: I'll bet you that the accident benefits schedule Peter Kormos was talking about got her more votes than she got herself. That accident benefits schedule was so deadly, the one that you were talking about in 1990 as opposed to the one that's in this bill, that Mr Bradley, also from St Catharines, had an awful time winning. Mr Kormos siphoned so many votes away from him because of the promised auto insurance scheme he had that Mr Bradley almost lost his seat.

I don't think that will happen to Mr Bradley next time, because nobody is going to believe the NDP candidate who's running in that riding. They're going to say: "You know, that guy told us a pack of lies last time. He just was a big capital-L liar."

The Chair: I --

Mr Harnick: That's what they're going to say about that person. "The auto insurance scheme he told us about last time isn't the one that we got, so we're never going to vote for that bunch of people again, because they did not tell the truth."

Mr Tilson: He's referring to the NDP as a whole.

Mr Harnick: They didn't tell the truth. How can you elect people who don't tell the truth? Is it right to tell people that you're running on one accident benefits schedule and deliver another one? Is that right? Is it right to say, "Well, you know, I changed my mind when I got to Queen's Park because I think I found a better method"? Is that right?

I remember a day when Bob Rae used to call people liars for doing things like that. He used to call people liars.

Mr Tilson: Made headlines.

Mr Harnick: Made headlines during an election campaign. He called David Peterson a liar.

The Chair: Has this got anything to do with section 1?

Mr Harnick: I'm coming right to it. David Peterson promised an accident benefits schedule and he delivered on his promise. He didn't lie. He just delivered a terrible piece of legislation. He got thrown out and you were elected because you were going to do something that was totally the opposite of David Peterson, and now what you're doing is something worse. Your Premier had the gall to call David Peterson a liar. Can you imagine something so unparliamentary, Mr Chair? If I called --

The Chair: You're on a tightrope in here, I can tell you.

Mr Harnick: If I called any member in here a liar, you would send me to the corner again.

Mr Tilson: Or the tent.

Mr Harnick: Or the tent.

The Chair: I checked to see what kind of shoes you had on. You're on a tightrope. Mr Harnick, you've got two minutes to sum up, or are you ready to go tomorrow again?

Mr Harnick: I think I'd like to hold the floor till tomorrow. Do you know why? I think tomorrow I'm going to bring in some case law dealing with accident benefits schedules, and I think we should really talk about some of those cases, so I can show you that even though you put something in a schedule called no-fault benefits, statutory accident benefits or accident benefits, whatever you're going to call it or however you're going to camouflage it, it does not lead to what the minister said would be automatic payments.

Nothing in life is automatic, but the last thing that should be automatic is taking rights away from innocent people. It should be fundamental, particularly in a social democratic government, that those who are innocent victims, who are hurt and disabled, whose families are devastated by fatalities, are going to be fairly looked after by social democrats, not looked after and made impecunious, not made to go on welfare rolls, not made to seek government housing because all they got was $117,000 for a breadwinner who wasn't at fault for an accident.

The Chair: Okay, Mr Harnick, you have the floor tomorrow at 10 o'clock. We're going to start sharp.

Mr Mancini: Mr Chair, can I request that we secure the room so we can leave our documentation here?

The Chair: Okay. This committee is recessed till 10 o'clock tomorrow. Mr Harnick's up, and I hope to see you at 10.

The committee adjourned at 1700.