Mr Gilles Bisson (Timmins-James Bay / -Timmins-Baie James
ND)
Mrs Claudette Boyer (Ottawa-Vanier L)
Mr Brian Coburn (Carleton-Gloucester PC)
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Raminder Gill (Bramalea-Gore-Malton-Springdale PC)
Mr Pat Hoy (Chatham-Kent Essex L)
Ms Frances Lankin (Beaches-East York ND)
Mr Bill Murdoch (Bruce-Grey PC)
Substitutions / Membres remplaçants
Mr Gerry Martiniuk (Cambridge PC)
Also taking part / Autres participantes et
participants
Ms Lois Lowenberger, counsel, civil justice reform, Ministry of
the Attorney General
Clerk / Greffière
Ms Anne Stokes
Staff / Personnel
Mr Andrew McNaught, research officer, Research and Information
Services
The committee met at 1008 in committee room
1.
FIRST REPORT ON REGULATIONS, 1999
The Chair (Ms Frances
Lankin): I call the meeting to order. The committee is
here today to consider a comprehensive response to the first
report on regulations, 1999, from the Ministry of the Attorney
General. Committee members will remember there were two items in
that response where we were looking for reaction from two
different ministries. One of those matters the committee has
already dealt with; the second, an outstanding matter, is with
respect to the Ministry of the Attorney General.
The committee had asked that
the ministry attend before the committee during the Legislature's
2000 spring session. The ministry provided a written response in
March that was circulated to committee members. Upon reading
that, committee members had a discussion and determined that they
wanted to proceed to have the ministry come forward and
clarify.
I remind committee members of
the terms of reference of our committee. Although we all want to
get into policy and discuss the merits of what various ministries
are doing, our terms of reference are very specific. The matter
before us with respect to a Small Claims Court fee differential
has been-the questions the committee has raised are, under our
terms of reference, looking at regulations and the prohibition
that they "should not impose a fine, imprisonment or other
penalty." The discussion before us today is whether or not the
regulation that the ministry has put forward in fact does
constitute the imposition of a fine, imprisonment or other
penalty. It is a legal argument essentially that will be
presented in terms of the clarification of the intent of the
ministry and the meaning of those words on the face of them.
I'm going to ask the ministry
representatives to first of all identify themselves and then
perhaps proceed with any presentation you would like to make.
I'll then turn it over to the committee if they have questions.
Would you like to begin?
Ms Debra
Paulseth: Thank you, and good morning. My name is Debra
Paulseth. I'm the acting assistant Deputy Attorney General for
the court service division in the ministry. With me today are two
other counsel: Ann Merritt and Lois Lowenberger.
Perhaps briefly, I could
indicate that we are certainly here in answer to the request from
the committee. We have interpreted the meaning of the term
"penalty" to mean an adverse consequence for doing a prohibited
act, particularly a punishment or fine for breach of a law or a
rule. It was never the intention of the ministry, during any of
our rationalization of fees, to impose such a consequence on
people who absolutely require access to the justice system. We
had understood that infrequent users are most commonly
individuals or small businesses and we in fact wanted to provide
them with an assurance of access to the court by giving them a
smaller fee than frequent users. Frequent users are most commonly
larger institutions, and it's our understanding that in 1999 that
actually formed less than 20% of the claims filed with the Small
Claims Court in Ontario.
The fees for infrequent users
were established at a lower level to effectively increase the
level of subsidy by government for individuals and for small
businesses. It was felt that raising the fee for infrequent users
to the full level paid by frequent users would place a
considerable burden upon individuals and small businesses. We
have raised the fees, as is usual, every several years under the
administration of justice in an attempt to increase the
proportion-certainly not the full cost, but the proportion-of
revenue to cover the cost of providing access to the courts.
We would be concerned that
the proposed interpretation of the term "penalty," which appears
to be suggested by the standing committee's interpretation, might
in fact prohibit all distinctions in treatment between different
categories of persons. There are many regulations in Ontario and
in other jurisdictions that create categories of individuals and
impose different standards on them. We do not believe that such
regulations have ever been interpreted as creating penalties
within the way we have interpreted the term "penalty."
The purpose of the fee
differential in the Small Claims Court, and in fact across many
of our courts-the Supreme Court has a different fee and many of
our Ontario courts have no fee-is to maintain the integrity of
the justice system at large, and in this case in particular the
Small Claims Court as the people's court.
Thank you very much for this
opportunity to appear. We're very happy to answer questions or
give examples of other fee differentials that we have
identified.
The Chair: Thank you. I think that
might be a helpful place to start, if you could give us some of
the examples of other categories of users. In particular-I think
it would be obvious-the concern to the committee was that the
differential here was tied to a category based on volume of usage
of the system as opposed to any other distinguishing factor like
size of the institution versus an individual. So it appeared to
have a direct relationship with the degree to which a party made
access or attempted to make access to the court. If there are any
other of the categories or fee differentials that could help us
understand how in the ministry's mind that isn't a penalty for
frequent use, for example, that would be helpful.
Ms Paulseth:
Do you want to give some examples, Lois, that you've
identified?
The Chair:
Could you identify yourself for Hansard too, please?
Ms Lois
Lowenberger: Lois Lowenberger. In response to the
chairperson's question, we've identified some differential
regulations but I'm not sure they specifically address the type
of category that you're looking at.
For example, under the
Highway Traffic Act there are differential fees for persons over
and under the age of 65 years for the same driver's examination
and licensing class. As you know, under social welfare
legislation there are a number of categories created for access
to particular types of benefits. Under the Personal Property
Security Act fee structure there are differential fees for a
registration period of less than 25 years or in perpetuity. I
might mention also that in the Superior Court, under the
Construction Lien Act, there are differential fees for filing a
claim below $6,000 and above $6,000.
We've identified a range of
different types of categories. I don't know if that's of any
assistance to you, because it doesn't specifically address the
usage argument.
The Chair:
Committee members?
Mr Pat Hoy
(Chatham-Kent Essex): I think you've hit it quite
rightly: It doesn't address the usage factor.
The difference in fees, as I
see here: Filing of a claim is 140% higher for a frequent
claimant; filing of a trial date is 30% higher for a frequent
claimant; entering of a default judgment is 43% higher for a
frequent claimant. Ranges of 30% to 140% are a concern to some
members of the committee, and perhaps all of us; it certainly is
a concern of mine.
These people are seeking
justice, which I see some difference in quite readily as opposed
to applying for a licence to drive a motor vehicle, for example.
In my riding, I've been approached by small businessmen and
businesswomen who are trying to seek justice and claims through
Small Claims Court and they are telling me they use this quite
often. I have great difficulty in having constituents anywhere in
Ontario having to pay a higher fee simply because their access to
justice is required more often than someone else's.
Do you have a comment about
people who are seeking justice being charged more because they
happen to require that more often than, say, another
individual?
The Chair:
Mr Hoy, if I may, I'm going to ask you to redirect your question
a little bit because, unfortunately, we're not able to deal with
the merits of it. It's a question of whether or not, in this
case, your constituents see that as a penalty for frequent use.
That's the issue we're debating.
Mr Hoy: I'll
rephrase my question. Indeed, these people do see it as
prohibitive and a penalty. You give three different examples in
your answer to the committee, but I believe, as do my
constituents, that this is indeed a penalty. If these increased
fees are not a penalty, what would you describe them as, what
would you characterize them as?
Ms Paulseth:
We believe that the fees established under the administration of
justice are an attempt to recover a proportion of the cost of
providing service to the public. I can understand that your
constituents see that $145 certainly is a significant amount of
money with respect to a claim. But the service provided in Small
Claims Court, where the jurisdiction for that court has risen
over the last 20 years to provide a faster, more informal
service, is still being heavily subsidized by the taxpayers.
1020
In most jurisdictions in
Ontario, the Small Claims Court can provide a default judgment or
a hearing following a dispute in the courts within six to nine
months, and that is substantially better than the higher courts,
the superior courts. We still believe this is a people's court
and the effect of the amount of the fee has not been to reduce
claimants in the system at all. That's our only response. I'm
sorry.
Mr Gilles Bisson
(Timmins-James Bay): Specifically to the terms of
reference of our committee, I am going to go through three of
them and why I think this actually is a violation of the standing
orders of this committee.
The first regulation says,
"Regulations should not contain provisions initiating new
policy...." What in effect we're doing here is initiating a new
policy when it comes to frequent users of the Small Claims Court.
So that would be my first argument. A little bit later I'll get
to the differentiating between an actual person and a legal
person. We'll get into that later. But that's the first thing:
This committee's regulations say "should not contain provisions
initiating new policy." I would consider trying to levy an
additional user fee to frequent users of the court as a new
policy. That would be my first argument.
Section (vi) says,
"Regulations should not impose a fine, imprisonment or other
penalty." I think it just leads back into the first point that I
made, which is that what you're trying to do here, in effect, is
to create a new fine or a new penalty for frequent users of the
court. I see that as an infringement-not an infringement; I guess
that wouldn't be the right word. But I see that in contradiction
to what the standing orders clearly say that you're allowed to
do, and that's why this issue has been flagged.
The last one, section (viii),
says, "Regulations should not impose anything in the way of a tax
(as distinct from fixing
the amount of licence fee, or the like)." We can get into the
argument about a tax is a tax is a tax, for Mr Murdoch and others
who were here prior to 1995. I just want to make sure the Premier
and the cabinet live up to their commitment they made between
1990 and 1995, which is, "We view user fees the same as any other
tax in the province of Ontario." Those are the words of the
Premier: "A user fee is a tax." If I'm to believe the Premier-and
I have to, because he has to tell the truth in the House; he
can't lie-this is a tax. Therefore, he is taxing frequent users
of the Small Claims Court system and that, to me, is a clear
violation of our standing orders.
The other point I want to
make-this is a fairly interesting argument that the ministry
brings before us, if I can have your attention. They talk about
the difference between an actual person versus a legal person,
meaning that we're going to have a differentiated fee based on
that sort of definition: an individual who goes to Small Claims
Court because my neighbour did whatever versus a person who
operates a business and is trying to recoup bad credit.
It's interesting that you
bring that argument, because what I see it doing is arguing
against what you're trying to do, because again you're applying a
differential to those who are defined as legal persons. Again, I
see that in contradiction to the standing orders.
It is clearly a new user
fee-or tax, as Mike Harris likes to call it-that we're applying
to people who are frequent users of the system. I see that as a
creation of a new user fee or a new tax, and I see it in
violation of this. I'm just interested in what your comments are,
or maybe research, if they want to make comments.
Ms Paulseth:
I don't know that there is any more we could add. Sorry.
Mr Bisson:
You agree with me, then; that's the point.
Ms Paulseth:
We don't agree with the honourable member, but thank you for your
question.
The Chair:
Are there any questions from the government bench?
Mr Gerry Martiniuk
(Cambridge): I'm just curious. Perhaps you can educate
me in regard to the fees paid in-Superior Court? They keep
changing the name.
Ms Paulseth:
Yes, that's true.
Mr
Martiniuk: If I recall, to initiate an action was about
$300.
Ms Paulseth:
It was at one point. The fee now in Superior Court to file a
claim of over $6,000 is $157. To file a defence in the Superior
Court is $125. Further claims range between $90 and $157 for
steps in a Superior Court action. I believe the fee you may be
referring to is to set a matter down for trial, which is almost
$300. It's $293, and the current tariff in Small Claims Court is
$100, or $130 for a frequent claimant.
Mr
Martiniuk: To set an action down, to get to a trial in
Superior Court, the fees would run over $500.
Ms Paulseth:
Oh, absolutely.
Mr
Martiniuk: Would one say that fee covers the cost of
administration-I'm not talking about the trial now-of the
action?
Ms Paulseth:
Absolutely not. It does not in any way come close to recovering
the cost.
Mr
Martiniuk: Let's just deal with the fees and equate
that. Are the administration costs in Small Claims Court
enormously lower than they are in the Superior Court?
Ms Paulseth:
No, sir, they're not.
Mr
Martiniuk: I see. So when we establish a fee for
frequent users, does that in any way cover the administration
costs of the court?
Ms Paulseth:
No, sir, they do not.
Mr
Martiniuk: We have established a fee for everyone other
than non-frequent users, in effect, looking at the converse of
what we've been discussing. What we're doing is giving a break,
as I understand it, to ordinary people who are not frequently in
court, who are seeking justice.
Ms Paulseth:
Absolutely, that was our intention.
Mr
Martiniuk: Otherwise we could have just, I assume, put a
blanket fee over the whole thing as the frequent users would
pay?
Ms Paulseth:
That's correct.
Mr
Martiniuk: Part of the policy analysis was to ensure
that the ordinary citizen of Ontario who was not using the courts
as a collection agency frequently would have access to it without
being penalized by higher fees.
Ms Paulseth:
That's absolutely correct.
Mr
Martiniuk: Thank you.
The Chair:
You've just caused me a great deal of problem in the answers to
those questions.
Mr Bisson:
I'm not ready to call it yet. I'd like to speak to that.
The Chair:
Yes, and as Chair I have an option of speaking as well, so I'll
come back to committee members in rotation.
If I hear correctly the
answers to Mr Martiniuk's questions, you just indicated that
frequent users-essentially agreeing with him-are a category of
people who are seen as using the courts as collection agencies.
So there's a judgment on who they are and what they're doing,
which almost has the sounds of a frivolous use of the courts. You
indicated that the lower fee was so that ordinary people could
use the court without penalty. That was in direct answer to Mr
Martiniuk's question. As I look at the letter that you have
provided to us, in your own definitions the third meaning of the
word "penalty" is "disadvantage, loss or hardship due to some
action."
I think what the committee is
struggling with here-and Mr Martiniuk couldn't have made it any
clearer in that exchange-is by the classification, not of natural
person or legal person, but a person who comes frequently or
comes infrequently, there is an implied judgment about who that
class of people is and their capacity to pay more, or perhaps the
need for a deterrent for their frequent or frivolous use of the
court system, if they are, as Mr Martiniuk said, simply using the
court system as a collection agency.
I think the committee is
going to have to grapple with whether or not, on the merits of
the policy, it makes sense to have a different fee for an individual versus
a corporation, whether it be a small business incorporated or a
large business incorporated, but also whether you can judge a
class of persons on whether they use the courts frequently or
infrequently, and whether how you've structured this constitutes
a penalty.
Do you want to give a
response to that, particularly about your response to Mr
Martiniuk, and then I'll go to Mr Hoy and Mr Bisson.
Ms Paulseth:
I did not understand the question to in any way impute a judgment
upon the claimants. I understood the term "collection agency" as
simply an example of the types of claimants who would be subject
to the frequent user fee. That was my understanding when I heard
the question and when I answered it.
The Chair:
I'm sorry, but if I could just take it one further, Mr Martiniuk
also said that-I'm paraphrasing-he understood the lower fee for
infrequent users was to give them a break so they wouldn't have
to pay a penalty. You agreed with that.
1030
Ms Paulseth:
I understood him to use the term "penalty" not as a legal term
but simply to elaborate upon the fact that when the ministry goes
forward under regulation pursuant to the Administration of
Justice Act, we must justify our fees in terms of the cost, as a
proportion of the cost of providing this service, and that as
fees have gone up over the years, it was felt that the fees for
infrequent users should be set at a lower level in order to
maintain a slightly higher level of government subsidy for
individuals and small businesses, and that was consistent with
the whole purpose of a Small Claims Court or a people's
court.
The Chair:
Thank you.
Mr Hoy: You
just described a moment ago fees for Superior Court. Do they
escalate with frequency of use?
Ms Paulseth:
No, sir, they do not.
Mr Hoy: I
suspect that the court would decide in the end whether a case was
frivolous or not. I have no further questions.
Mr Bisson:
Do I understand you correctly to say that the regulation has an
intent to create a policy that differentiates between frequent
users and infrequent users?
Ms Paulseth:
The regulation does in effect differentiate, yes, at the
10-claims-per-year cut-off.
Mr Bisson:
The second thing is that the policy is to initiate a policy of
cost recovery.
Ms Paulseth:
That is the purpose of the tariff.
Mr Bisson:
Of the regulation. So the regulation that you wrote basically
tries to do two things: first, to institute a policy that says,
"We're going on a cost recovery basis, rather than a subsidy from
the state." Right?
Ms Paulseth:
I'm sorry, I don't understand the question.
Mr Bisson: I
was intrigued, because you said a little while ago that the
purpose of the regulation is to move the Small Claims Court to a
policy where the state generally paid the administration of the
court on a cost recovery basis.
Ms Paulseth:
It is not anywhere close to a cost recovery basis, sir.
Mr Bisson: I
understand. But what you're trying to do is move it-
Ms Paulseth:
But that's how we rationalize the fees, is to understand the
proportion of revenue to costs. But across the board, it is a
subsidized system.
Mr Bisson:
But you're trying to recover closer to the overall costs. That's
the stated purpose of your policy. I come back to the first point
I made, which is the first bullet under our standing order
106(h): "Regulations should not contain provisions initiating new
policy." That was my argument at the beginning, that what you're
doing here is creating a policy that basically says,
(1) we're going to move by way of regulation to a different
mindset at the ministry when it comes to fees as a recovery of
costs, rather than trying to make it sort of self-sustaining,
trying to make it pay for itself; and (2) creating a policy
that differentiates between frequent and infrequent users. I
would also view that as an infringement against what the standing
orders of this committee say. I see it as a direct violation of
the standing orders.
I as a committee member-and I
think the government members across the way are somewhat
sympathetic to what I'm saying. Number one is that we want to
make sure we don't bar small business people from having access
to courts, because primarily frequent users are the ones that are
trying to recoup bad credit by way of small claims. We wouldn't
want to put an additional burden on the small business sector.
I'm sure the government members would agree. I think it would be
wise for us as a committee to say, "No, we reject this regulation
as being, from what we were told initially by research, in
contravention of our standing orders." Afterwards, I have one
little question I want to ask the presenters for the government
members to comment on.
The other thing is in regard
to the fee itself. Did I understand you correctly to say that the
fee for individual users went down as a result of this
policy?
Ms Paulseth:
No, sir.
Mr Bisson:
OK, because that was the impression I think people were getting
in your response to Mr Martiniuk's question, which was that your
policy was to lower the fees for individuals. I just want the
record to show that fees did not go down for individuals as a
result of this; in fact, they went up. So let's be clear.
Ms Paulseth:
I'm sorry. In 1993, the differential fee was based on the amount
of the claim. So, for example, under $1,000 was a $35 fee, and
$1,000 to $3,000 was a $50 fee. When the increased fee schedule
came in, in 1997-the issue at hand, I believe-infrequent users'
fees did not change from $50. The rationalization brought in the
frequent user term.
Mr Bisson:
What is the fee now, just out of curiosity?
Ms Paulseth:
It remains at $50 for infrequent users and it increased in the
year 2000 to $145 for frequent users. But infrequent individuals and small
businesses have remained at $50 since the early 1990s.
Mr Bisson:
The point being that they didn't go down.
Chair, can I ask for a very
short recess? Members would know that we have school tours that
come in at this time of the year. I've got to go and take a
picture with them, and I'll be right back. I don't want to lose
this particular part of the debate, so could I ask for a
five-minute recess?
The Chair:
Is there unanimous consent for a five-minute recess? Agreed.
The committee recessed
from 1036 to 1045.
The Chair:
At this point we can continue with any questions that members
have for ministry representatives who are here, and if I could
ask you to keep debate separate. We can have a discussion
following that, but I don't want to take more of the ministry's
time than is necessary.
Mr Raminder Gill
(Bramalea-Gore-Malton-Springdale): Thank you for the
presentation. As we discussed briefly, I do agree with the
principle, but I just want to know the mechanism of how you know
who's a frequent user. When they apply for the small claim they
usually go in with one claim at a time. They go to the window, if
my memory serves me right, they present this claim and the clerk
or whoever is there says, "This is the fee." Then they go back
the next day and they go back the next day. How do they know that
10 numbers have been hit, and is it 10 per year?
Ms
Paulseth: Records are kept by the court staff. They keep
a record of all the claimants, and once a claimant has filed 10
claims in a calendar year, then the claimant is charged the
higher fee for the remainder of his or her claims. So the first
10 certainly fall under the $50 infrequent user, and then it is
over 10 that they are charged the higher fee. It starts over
again the next calendar year. It is now $145.
Mr Gill:
Are they using the same wicket or the same window or the same
place, or can they be going anywhere in Ontario and the record is
still there?
Ms
Paulseth: I think it is just in the same court; it's
kept in the same court.
Mr Gill:
What if they go to a different court?
Ms
Paulseth: I don't think we are able to track that
currently, sir.
Mr Gill:
Because these companies or these people who are using it
frequently are not only accessing one location?
Ms
Paulseth: That's absolutely true, yes.
Mr Hoy:
Would you explain the rationale why you chose those persons who
filed 10 or more claims in a year? What was the rationale for the
number 10 as opposed to 12 or eight?
Ms
Paulseth: To be honest, I don't actually recall what the
various numbers were that were considered prior to 1997 and going
forward with that regulation, but I can tell you what percentage
of the claims in 1999 fall under the frequent user, and that was
19% of the claims filed.
Mr Hoy:
Would you describe 10 as arbitrary?
Ms
Paulseth: No, I can't say, sir. I'm sorry.
Mr Bisson:
It's 19% of claims that are 10. Would you know, for example, if
that number were 12, the percentage of users? Do you have any
information like that? If it's 19% at 10, at 15-you don't have
that breakdown?
Ms
Paulseth: I'm sorry, we don't.
Mr Bisson:
It would have been nice to see.
The other thing, of the 19%
who are the frequent users, I take it by and large most of those
are small business.
Ms
Paulseth: No, sir. The frequent users are department
stores, banks and credit agencies. They form the largest majority
of frequent users. The claims are primarily found in the
high-volume urban courts, and primarily Toronto.
Mr Bisson:
I'm coming back at it from my experience in small business. In
our court in Timmins, the people who tended to be frequent users
were actually the small, independent owners, not so much the
chains. Of course, I've been out of business for 15 years, so it
might have changed over the years, but I know that the people who
were utilizing the courts at the time I was using them were by
and large small, independent owners who were trying to recoup bad
credit. Where are these people going? Are they not doing credit
any more?
Ms
Paulseth: Primarily they send those to credit agencies
now to enforce them. That is my understanding.
Mr Bisson:
That's not what I'm getting. I went back and I talked-
The Chair:
Mr Bisson, I'm going to ask you again to try and stay to the
regulations issue. It is important to have the background
information of to whom it applies, but again, although I think
all of us would like to talk about the merits of this, that's not
within the purview of the committee.
Mr Bisson:
What I'm trying to get a handle on is what percentage of usage
the small businesses are in that 19%. What's the percentage that
is small business? That's what I'm trying to figure out, because
that's basically who we're trying to protect here. Do you have
any stats within the 19%?
Ms
Paulseth: I don't think we have that information. We
could try to go away and see if we could get that information in
our sort of current manual system and provide it to the research
officer if we could get it.
Mr Bisson:
My next question will be to legislative counsel whenever we get a
chance, whenever that's appropriate. I want to ask a regulatory
question about our purview to make a differential.
The Chair:
That's fine. We will come back to that. Just a follow-up to that
question: You indicated that most small business would redirect
their collections for a bad debt to a collections agency. In the
exchange earlier, did I understand that collection agencies are
in part one of the groups under the frequent users?
Ms
Paulseth: Yes, that's my understanding.
Mr Bill Murdoch
(Bruce-Grey): I just want to clear the record here that
I don't think there's anybody, one person, we're trying to protect here. We're
trying to protect everybody. So I don't think you want to get
that on the record, saying it's just small business. We're trying
to protect everybody.
Mr Bisson:
I do.
Mr
Murdoch: That's not the point, though. You're wrong.
Mr Bisson:
I want to be clearly on the record as wanting to protect small
business. The big guys can look after themselves. They've got the
money to do that, quite clearly.
Mr
Murdoch: I see.
Mr Gill:
Just a question: Have you had any representation from these 19%
of people saying that they're going to be coming up with any
hardship? Have you had any correspondence from them?
Ms
Paulseth: No, sir, not to my knowledge.
Mr Gill:
So they are pretty well saying those are the new rules and
they're going to work with them.
Ms
Paulseth: Yes, sir.
The Chair:
That's something, as you said, you don't have information on, or
are you aware there hasn't been? Before, your answers, when you
weren't sure, were that you didn't have information on that.
Ms
Paulseth: My understanding is limited to letters that
have come into the ministry. As well, there is a group of
institutional users, collection agencies, who meet with the
ministry from time to time and they have not raised this issue in
some time with us.
Mr Gill:
Have you had any small businesses saying they're going to have
hardship by this thing?
Ms
Paulseth: Not to my knowledge, sir.
The Chair:
I caution committee members that you're straying off the purpose
of reviewing whether the regulation falls within the purview of
what a ministry can do under regulation versus what they can do
under law, and that's what we need to examine. Mr Bisson, you had
one more question?
Mr Bisson:
I just have one question again about the percentage of those
people within the 19%. Do you have a breakdown of how many of
them are collection agency claims?
Ms
Paulseth: I don't, sir.
Mr Bisson:
Is it hard to get that?
The Chair:
Are there any further questions for the ministry?
Mr Bisson:
Can we get that information? That's all I'm asking.
Ms
Paulseth: I don't know, and I don't know what the
definition of "small business" would be. You'd have to get into
that kind of research.
The Chair:
Are there any further questions for ministry officials?
Mr Garfield Dunlop
(Simcoe North): Madam Chair, I have no problems here. I
don't see any hardships.
The Chair:
Are there any questions at this point, though, because I-
Mr Dunlop:
It's just that I'd like you to call the question.
The Chair:
I think there should be an opportunity-if you want to put a
motion to call the question, we can do that. Normally, we would
afford committee members an opportunity, after having questioned
the ministry, to put some views on the record with respect to
this and then take a vote.
Mr Dunlop:
All right. That's fine.
The Chair:
Thank you very much. We appreciate your taking the time and being
here with us.
As Chair, I get a read of
the room that people have a sense of where they're going with
this, but I think it's important that you have an opportunity at
least to hear from each other and put briefly on the record your
thoughts about this. Once again, I'm going to ask committee
members to do their best to ensure their remarks are confined to
the terms of reference under our standing orders and whether or
not, in your view, the ministry can in fact effect this
particular action through regulation or whether that is a
violation of the guidelines, and whether or not you have a
recommendation of what the committee should do next.
Just so you know the
options before the committee: We can decide to take no further
action; we can make a second report to the House; if we make a
report to the House, we can simply have a brief presentation of
what we want to say, whatever it is the committee wants to say.
It can contain an additional request which would be placed on the
order paper and, if called by the government, is before the House
for consideration. It can contain a motion with a recommendation
which would be placed on the order paper and, if called by the
government, would be before the House for consideration. It could
contain a motion that the report be adopted if the report has a
substantive motion in it, and we can get into the details of
that. Once again, it would be placed on the order paper and
called for debate by the House if the government called it
forward.
Those are the options
before us. As you speak to this, if you have an opinion with
respect to whether or not the regulation falls within or outside
of the guidelines and what, if anything, you think the committee
should do in response to this item before us today, I would
appreciate it if you would address your remarks to that.
Mr Bisson:
I have a question to counsel before we get to the rotation. I'm
not sure if it's to research or leg counsel. Basically, the
argument here is, does the government, by way of changing
regulation, have the right to do this? Is it a violation of our
order? Originally, this was flagged to us because it was seen as
contradicting the standing orders in the sense that it imposed a
new fee. Am I correct? That's why it ended up here.
Mr Andrew
McNaught: In the sense that it imposed two levels of
fees.
Mr Bisson:
That's right. Two levels of fees, I should say. We heard their
argument and I'm not going to repeat it. Have you in any way
changed your mind at all or are you still of the view, as I am,
that this is quite frankly an imposition of a new fee on a
different class of user?
Mr McNaught: As I mentioned a
couple of weeks ago, this issue of a penalty hasn't really been
raised by the committee in a number of years, so it was a bit new
to us as well when we first flagged this. We simply raised it as
a potential issue. As I said a couple of weeks ago, after looking
at the fuller explanation provided by the ministry, I tended to
side with their interpretation on the very narrow issue of what
constitutes a penalty.
Mr Bisson:
That brings me then to my next question, which is that if the
committee is to take the view that it certainly pushes the
outside of the envelope but doesn't go over the line, would it be
within the orders for us to make a recommendation, if there is a
differential fee applied, that it not be applied to individuals
or small business people who utilize the courts? Would that be
against the standing orders if I was to make that kind of
recommendation?
The Chair:
The committee can make any kind of recommendation they want with
respect-
Mr Bisson:
But I don't want to argue against the very standing orders that
we're trying to figure out, if they apply or not, if you follow
where I'm coming from.
The Chair:
You're asking leg counsel or leg research to make a judgment
call, which is what the committee has to do. If you believe this
either violates the standing orders or is borderline in terms of
interpretation, the recommendation could be for the ministry to
correct that problem, and if there was a majority view among
committee members about how that problem should be corrected to
eliminate the problem of this regulation imposing a penalty, that
recommendation could be put forward by the committee.
Although the committee can
do anything it wants in its majority vote, what would be wrong,
in my view as Chair, would be if the committee were to attempt to
comment on the merit of the policy and propose a different policy
because you thought the ministry's policy was not meritorious.
That's the fine line we walk at this point in time.
1100
Mr Bisson:
I know the direction I'll take, then.
Mr Hoy:
Yes, you're quite right, Chair. We're being asked whether indeed
this violates our standing orders-
Interjection.
The Chair:
Could we have order? At this point, let's try and move to the
discussion here.
Mr Hoy:
-in two regards, one of providing two levels of fees, and
secondly, does it constitute a penalty for frequent users? There
are two issues in my mind.
Also in my mind, I don't
think I would want to personally start to begin to categorize
other persons, individuals or entities in order to somehow make
ourselves feel that this is not instituting two levels of fees or
somehow diluting the fact that it is a penalty by recommending
that we ourselves as a committee formulate a group of persons or
individuals or other entities that are exempt from the
regulations. The question here is, does this provide for two
levels of fees that are different, one from the other, and a
penalty? I'm of the view that it is exactly that. It is exactly
providing for two levels of fees to individuals, one different
from the other, and does indeed constitute a penalty.
I also put heavy weight on
counsel and research officers to this committee who are impartial
and non-partisan. In their view, they've come to us with their
judgment that I agree with, that this issue we're talking about
today does create a penalty for certain individuals and most
definitely does provide for two different levels of fees.
Mr
Murdoch: I just want to say I absolutely agree with him,
but I think we should do it anyway.
Mr Bisson:
You think we should what?
Mr
Murdoch: We should pass this motion, do it. I don't
think there's anything wrong with what they're asking us to do.
He's right, sure, there are two different fees, but there are
people who use it more often. I just think we're doing what
should be done. So yes, what you just said is probably true, but
let's get on with it and let's do it then.
Mr Hoy:
Could I comment, please?
The Chair:
Every time one of you guys speaks up, you make this more
complicated for the Chair.
Interjections.
The Chair:
Mr Murdoch, I need to ask you whether or not you agreed with what
Mr Hoy said, that in fact the construction of this constitutes a
penalty. If I may, just to try again with the committee, whether
or not you agree or disagree with what the ministry is trying to
do isn't the question that we get to answer. We can debate that
as politicians.
Mr
Murdoch: I know. We want to know whether it's a penalty
thing. I don't know whether it's a penalty or not, to be quite
honest.
The Chair:
If it's structured as a penalty, then the ministry can't do it by
regulation under the rules.
Mr
Murdoch: In fact, if it is in-so it's not a penalty.
It's just a matter of setting fees to charge people for a service
that they get. I say let's get on with it because I think we're
wasting all our time. It's damn lucky we're not getting paid
$103,000; it would be a bigger waste of time.
Mr Bisson:
I am certainly sure there are a number of members in your caucus
who are really pissed off right now they're not being paid
$103,000. But that's another issue.
I just want to come back to
the rationale for why I think this is a violation of our
policies, the standing orders of this committee. I would ask that
the government members pay heed to what I'm trying to explain
here and hopefully, in their wisdom, they'll vote. Number one, is
this a penalty or is it not a penalty? By the admission of two
government members, first Mr Martiniuk in his exchange with-
Mr
Martiniuk: Excuse me, Madam Chairman. At no time did I
use the word "penalty." At no time. If you check Hansard, you
will find that at no time did I use the word "penalty" in any
way, shape or form. I'm exactly certain about that.
The Chair: Thank you, Mr
Martiniuk. I will certainly take the opportunity to review
Hansard. You can count on that.
Mr
Murdoch: Does it matter? He's cleared it up now. He says
it isn't a penalty, so that's on the record.
The Chair:
It's on the record.
Mr
Murdoch: That's right. That's all you need.
Mr Bisson:
My point is this: Does what's before us as a committee violate
standing order 106(h)? That's the question. Part of what's
germane to the point is, do we consider this a new penalty?
Basically, from what I heard from the government members, from Mr
Murdoch in response to Mr Hoy and from what I heard earlier from
Mr Martiniuk, there is an understanding on the part of the
government members that this is a new penalty being imposed on a
different class of business, a different class of individuals,
which are the frequent users.
Mr
Murdoch: A fee.
Mr Bisson:
A fee, a penalty.
Mr
Murdoch: It's a fee schedule, is what it is.
Mr Bisson:
If you let me work my way through this, Bill, you'll get-
Mr
Murdoch: No, because you-
The Chair:
Mr Murdoch, I'm going to call you to order, please. I think
everyone knows where we're headed here. Let's just get there. The
longer that we bicker, we won't.
Interjections.
Mr Bisson:
What is the part about democracy that you guys don't like? That's
what I want to know. Anyway, I can't talk about that. I have to
talk to the standing orders.
What's germane to the point
is, is this regulation creating a new penalty when it comes to
how it deals with utilizers of the Small Claims Court? I repeat:
We heard two government members today that in fact that's what
it's doing. I think there's sufficient understanding within the
committee that if it doesn't go over the line, it's pretty damn
close to going over the line. So that's the first point.
Then I bring you to three
of the bullets within standing order 106. The first one says,
"Regulations should not contain provisions initiating new
policy...." My argument is we're changing the policy to where now
there's going to be a differential fee charged to those people
who utilize the courts more frequently. I would argue that is a
new policy, that is a change of policy and therefore should not
be allowed, by way of the standing orders, to be accepted.
The second one is bullet
point (vi), "Regulations should not impose a fine, imprisonment
or other penalty." We are clearly creating a new fine in this
move, so I say again this regulation is affronting standing order
106(h).
The last one, which is a
bit political, Chair, and you may rule me out of order, is,
"Regulations should not impose anything in the way of a tax...."
I just remind you, for the record, Mike Harris deems user fees as
taxes, so therefore I want to make sure Mike Harris lives up to
his commitment. It's my job as an opposition member to hold the
government's feet to the fire, and I say he's breaking his own
policy.
For those reasons, I think
if it doesn't go over the line, it's pretty darn close to going
over. At this point, Chair, if it's in order, I would like to
move a motion, if I can do that.
The Chair:
Yes, you can.
Mr Bisson:
My motion would be that we report back to the House and we give
the House one of two things that they can do. One is that they
not move forward with this particular regulation in order to be
able to protect small businesses and classes of individuals who
use the courts, or, the other is a motion that excludes
individuals and small businesses from the application of the
differential fee.
The Chair:
OK, there is a motion on the floor. Is there anyone who would
like to speak to the motion?
Mr Hoy: I
agree with the first part of Mr Bisson's motion, but I think the
second part of the motion allows for a continuation to some
degree of what we're seeing in terms of a penalty being
there.
Mr Bisson:
I'm trying to get it on both sides.
Mr Hoy: I
know that you're sympathetic, Mr Bisson, as am I. But I would ask
Mr Bisson if he would consider withdrawing the second part of his
motion. I think it has the committee now drawing lines and
getting into waters that might have us subjected to the view that
we also could be putting a penalty in place for others. I think
the question before us is that there not be penalties imposed by
this particular ministry on any person or entity.
Mr Bisson:
I see that as a friendly amendment. I just want the member to
know the reason I wanted the second part of the amendment in
there. It was to say if, on the one hand, we as a committee see
this as going over the line but the government majority says,
"No, it doesn't," then I want to use the same rule to be able to
protect small businesses. I was just trying to make a point, so
I'm prepared to withdraw the second part of the motion.
The Chair:
As I understand it, the motion before us is for a report from
committee which recommends the ministry withdraw this
regulation.
Mr Bisson:
That's right.
The Chair:
That's what we're dealing with. Are there any other speakers to
this motion? Seeing none-
Mr Bisson:
Recorded vote.
AYES
Bisson, Boyer, Hoy.
NAYS
Dunlop, Gill, Martiniuk,
Murdoch.
The Chair:
That is defeated.
If I may, in rotation,
we've been back and forth a couple of times here. Is there anyone
in the government who would like to speak to the general issue
before us?
Mr Dunlop: No. We just have to
approve the regulation, and I move it.
The Chair:
At this point in time what might be helpful is if you also
indicate what you want the committee to do about it. You approved
the regulation. It's not really within our purview. Essentially
you want the committee to take no further action with respect to
this regulation. Would that be the wording?
Mr Dunlop:
Exactly.
The Chair:
Thank you. That's on the floor before us.
Mr Hoy:
Could you just explain what was agreed to there by-
The Chair:
The motion that Mr Dunlop is placing is that the committee take
no further action with respect to this item, that being the
regulation from the Ministry of the Attorney General.
Mr Hoy:
Thank you.
Mr Bisson:
Just for the record, first of all, I'm opposed to the motion for
the reasons we talked about in the last meeting and this meeting.
I see this as an additional tax on small businesses and
individuals who are utilizers of the court. I would also make the
point that the Ministry of the Attorney General people who were
here earlier said the type of people who are utilizing the Small
Claims Court more than 10 times by and large are collection
agencies. I remind the committee, who are the customers of the
collection agencies? Often it's small business people. Therefore,
the $145 new higher fee is going to be passed on to small
business. It's going to be in the bill that they get from the
collection agencies when the matter is dealt with at the court. I
see this as an additional burden on the small business community.
They're under enough pressure as it is now to make ends meet.
As an owner of a small
business in the past, and both my parents ran small businesses
all their lives, I just want to do everything I can in order to
protect that particular class of business because it's becoming
increasingly more difficult, in light of global competition and
competition from the bigger chains. I'm just very disappointed
that the Conservatives again have sided with big corporations and
not individual small business people.
Mr Dunlop:
Oh, come on. Get real.
The Chair:
Is there any further debate with respect to this motion? Seeing
none, is there a request for a recorded vote?
Mr Bisson:
Recorded vote.
AYES
Dunlop, Gill, Martiniuk,
Murdoch.
NAYS
Bisson, Boyer, Hoy.
The Chair:
The motion carries.
Is there any other business
that members-
Interjection.
The Chair:
Thank you very much, Mr Murdoch. I had a momentary lapse there.
Is there any other business that members want to bring forward?
Seeing none, a motion to adjourn? Moved. Adjourned.
