UTGB Vol 5.pdf - Robson Hall Faculty of Law

Underneath the Golden Boy
Volume V
EDITOR INCHIEF
Bryan Schwartz, LL.B., LL.M., J.S.D.
Asper Professor of International Business and Trade Law
Faculty of Law, University of Manitoba
SENIOR CONTRlBUTING EDITORS
Scott Monkman, LL.B. (2007)
Andrew Buck, B.A., LL.B. (2009)
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Travel Manitoba

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ACKNOWLEDGEMENTS
Underneath the Golden Boy gratefully acknowledges the support of the Asper Chair of
International Business and Trade Law, the Manitoba Law Foundation and the Legal Research
Institute of the University of Manitoba.
THE ASPER CHAIR OF INTERNATIONAL BUSJNESS AND TRADE LAW was established
in 1999 at the Faculty of Law of the University of Manitoba. Its mandate includes
teaching, research and publication.
THE UNIVERSITY OF MANITOBA LEGAL REsEARCH INSTITUTE promotes research
and scholarship in diverse areas.
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Underneath the Golden Boy
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Underneath the Golden Boy
contents
INTRODUCTION •...•••••••..•..•••••••.....•••••••..•••.•.••••••.•••••....••••••••••••..•••••••••• i
ARTICLES ON DEMOCRATIC REFORM
Fixed Date Elections
BRYAN SCHWARTZ Et ANDREW BUCK •••••••....•••••••••••..•.••••••••••••••••••••••••••••• !
Inquiries
BRYAN SCHWARTZ EtANDREW BUCK ..................................................... 13
Partisan Advertising by Incumbent Governments
BRYAN SCHWARTZ 8: ANDREW BUCK ..................................................... 25
Minimum Sitting Dates
BRYAN SCHWARTZ Et ANDREW BUCK ..................................................... 39
REVIEWS
Employment Standards that Work for Women
DEBRA PARKES•••••••..•••••••••••••.••••••••••••.•••••••••••..•.••••••••••••.••••••••••••••.• 49
Response to Consultation Paper on Franchise Law
BRYAN SCHWARTZ, JOHN POZIOS Et LEANDRO ZYLBERMAN .......................... 83
Bill210, The Highway Traffic Amendment Act (Bicycle Helmets)
LANA JACKSON••••••••••••••••••..••••••••••••••••••••••••••••.••••••••••••..••••••••••••.•. 145

And Justice For All-Bill47, The Legal Aid Services Society of
Manitoba Amendments Act
JUDY EAGLE................................................................................. 161
Bill 34, The Highway Traffic Amendment Act
JAMES PULLAR ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••..•••••••••••••••••. 181
Bill 207, The Medical Amendment Act
THERESA VANDEAN DANYLUK............................................................ 197
Bill 17, The Securities Amendment Act
JASMINDER BRAR ••••••••••••••••••••••••••..•••••..••••••••..••••••••••••••..•••••••••••••• 223
Bill 11, The Winter Heating Cost Control Act
RYAN HAUK ................................................................................. 235
Bill 7, The Architects and Engineers Scope of Practice Dispute
Settlement Act
ALEXANDRA DUECK ........................................................................ 253
Bill 207, The Personal Information Protection and Identity Theft
Prevention Act
TAR/Q MUINUDDIN ......................................................................... 273
APPENDIX A: BILLS PASSED IN THE 3RO SESSION OF THE 38TH LEGISLATIVE
ASSEMBLY ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 293
APPENDIX B: BILLS PASSED IN THE 4TH SESSION OF THE 38TH LEGISLATIVE
ASSEMBLy ................................................................................... 305
APPENDIX C: BILLS PASSED IN THE 5TH SESSION OF THE 38TH LEGISLATIVE ASSEMBLY
................................................................................... 317

Introduction
Academic commentary in common law jurisdictions has a tendency to focus on
the development of judge made law. Increasingly, however, the rules that
govern our society are conceived in the committee rooms of our legislatures
instead of in our country's courtrooms. As Canada's only ongoing legislative
process review periodical, Underneath the Golden Boy explores the workings of
our Parliamentary system and the laws our elected representatives produce.
To that end, this volume of Underneath the Golden Boy continues down the path
of legislative review established by previous editions. Volume V features
detailed profiles of eight recent Manitoba statutes, including the debates that
surrounded their origin and passage. Selected bills include legislative efforts to
address rising heating costs, a dispute between Manitoba's architects and
engineers, and the need for securities reform.
There are also several new and original contributions in this issue. Professor
Debra Parkes comments on the review of Manitoba's Employment Standards
Code. Her paper, "Employment Standards that Work for Women", includes a
comprehensive review of the Code as well as detailed recommendations for its
reform. This issue also includes .a response to the Manitoba Law Reform
Commission's "Consultation Paper on Franchise Law". The response, authored
by Dr. Bryan Schwartz, Desautels Centre for Private Enterprise and the Law
Director John Pozios and Robson Hall student Leandro Zylberman, discusses
whether Manitoba ought to adopt franchise legislation. It features a survey of
franchise legislation around the world, spanning 23 countries and three
international franchise associations.
To open the issue, Dr. Schwartz and this year's senior student editor, Andrew
Buck, explore four dimensions of reform to legislative process in Manitoba.
Many of these proposals are readily applicable to other Canadian provinces as
well as federal government. All are tied together by the desire for increased
incumbent party accountability.
Consider, for example, the current federal political landscape. A minority
government needs continued opposition party support. This fragile situation
can lead to a directionless approach to governing that puts self,preservation
ahead of solid policy.-making and long,term planning. However, minority
governments can also flourish under the pressure of knowing that one misstep
could bring about a snap election and the prospect of a move to the opposition
benches. Just as some individuals thrive when they are in fierce competition
with others, EO too can a minority government. Contrast this with the relatively
stress...free existence of a majority government that has enjoyed a landslide
victory. In that situation, the government need not worry about defeat in the

House or excessive scrutiny during question period. Ies an agreeable situation
for the government, but it does nothing to foster a sense of accountability.
A substantial majority is not the problem that causes accountability to sufferinstead,
it's emblematic of a larger issue. Put simply, situations that shift the
balance of power too much toward either the government or the opposition do
not lead to good governance. Too much power in the hands of the opposition
leaves the government shackled, unable to pass anything except the blandest
laws and policy. Too much power in the hands of the government creates the
potential for lazy, sloppy leadership.
The four legislative process reform papers contained in this issue of Underneath
the Golden Boy address this latter scenario. As recent and historical
developments have shown, measures need to be taken to correct the power
imbalance incumbent governments in Canada enjoy. The proposals explored in
this issue are as follows:
• Fixed date elections: many provincial governments are still allowed to
manipulate the timing of elections for their own partisan purposes. We
should remove this power by setting fixed dates for elections;
• Inquiries: incumbents are given unfettered discretion to establish and
set the terms of reference for inquiries. This allows a government to
delay the establishment of an inquiry into an issue of public concern
indefinitely. Reform should be undertaken to distance inquiry
establishment framework from the control of the governing party;
• Publicly funded government communication: it is perfectly acceptable
that a governing party would attempt to sell its success to the electorate.
Using the public purse to fund these partisan communication efforts is
not acceptable, however. This type of funding should be banned, or the
opposition should be provided with identical funding; and
• Minimum sitting dates: governments are held accountable when the
House is sitting. Unfortunately, incumbents in some Canadian
jurisdictions escape this scrutiny by keeping the House empty. To avoid
this problem, these jurisdictions should move to a set sitting schedule
that ensures a minimum number of sitting dates.
These measures are not intended to provide a perfect answer to the incumben
opposition imbalance. Taken together, however, they are an important move
toward the creation of an atmosphere of accountability for Canadian
governments.
Bryan Schwartz
Asper Professor of International Business and Trade Law
Faculty of Law, University of Manitoba

Fixed Date Elections
BRYAN SCHWARTzt & ANDREW BUCKt
1. lN1RODUCTION
F
or most people, Friday afternoon signals the end of a five day workweek.
Computers are shut down for the weekend, voice mail is turned on, and
office lights are shut off. Some workers even leave a little early to get a
head start on traffic. But 20 April 2007 was not just any Friday in Manitoba's
political circles--unbeknownst to just about everyone except Premier Gary
Doer and his closest advisors. That was the day Mr. Doer called Manitoba's 39th
general election, capitalizing on a longstanding rule that allows the governing
party to unilaterally select an election date.
Incumbent political parties hold a massive tactical advantage over their
opponents in jurisdictions that allow the government to set its own election
date. Unfortunately, as history shows, that advantage is frequently employed in a
less than..altruistic manner. This has led several provinces and the federal
government to remove the incumbent's power to arbitrarily set election dates.
Questions about its constitutionality have been raised, but it is argued fixed
date election legislation-which sets a maximum duration for Parliament, at
the expiry of which an election will be held-is distinct from the sphere of
power guaranteed to the Lieutenant Governor and Governor General. The law
is constitutionally sound, and as a result Manitoba should move to adopt fixed
date election legislation as a means of restoring a measure of fairness,
transparency and improved governance to the electoral process.
II. TIME TO SANDBAG UNFIXED ELECTION DATES
Speculation about a Manitoba election had been rampant leading up to Friday,
20 April 2007. But, as in other jurisdictions with unfixed election dates, no one
except the premier and his inner circle of advisors knew when the call would
come. And so it came, just hours after Prime Minister Stephen Harper visited
Bryan Schwartz, Asper Professor of International Business and Trade Law, Faculty of Law,
University of Manitoba.
Andrew Buck, B.A., LL.B. (2009).

2 Underneath the Golden Boy
Winnipeg to unveil a major good news funding announcement for the
Canadian Human Rights Museum. The announcement was made in time to hit
the airwaves on the 6 p.m. newscast, but neither the provincial Tories nor the
Liberals had time to respond to the announcement. 1 This, combined with a
"flurry of pre election advertising"/ had the desired effect-the NDP's lead in
the polls quickly rose into the double#digit mark. 3
The governing NDP further benefited from the timing of its announcement at
both ends of the campaign. First, its election workers were primed to hit the
pavement on Day One, while the PC and Liberal parties were left to call in
their foot soldiers from what most had thought would be a routine spring
weekend. Second, Manitoba election law allowed the premier to set the polling
date on 22 May-the Tuesday after a long weekend. 4 The Victoria Day long
weekend is widely viewed by many Manitobans as the start of summer. Between
opening up the cottage, enjoying the outdoors, and otherwise recreating, the
public is generally not paying much attention to current events. There were
several reasons for the eventual landslide NDP victory in the 2007 Manitoba
general election, 5 but the fortuitous timing made possible by unfixed election
dates certainly didn't hurt the governing party's cause. As a subsequent editorial
noted:
[T]he results also reflected the manipulation of the timing of the vote, crafted by Mr.
Doer, who admitted that, among other considerations, he chose May 22 because the
conditions for winning were right for his party. That is the vagary of the current system
that leaves in the hands of the government the decision on when to call an election. 6
Fortunately for the Doer government-but unfortunately for the electorateabuse
of the power to control the timing of the election and its attendant
benefits has been commonplace in Canada. Witness, for example, the history of
election calls during the Chretien and Martin federal Liberal era:
• Gilles Duceppe was elected leader of the then opposition Bloc
Quebecois on 15 March 1997. Canadians went to the polls 2 June that
year, despite a catastrophic flood in Manitoba. 7
Mia Rabson, "Doer's timing as good as it gets" Winnipeg Free Press (22 April2007) AS.
Dan Lett, "How the NDP talked its way to a third term" Winnipeg Free Press (17 June 2007)
BS.
Ibid.
Elections Act, C.C.S.M. c. E30, s. 49(1) states that an election must be held on a Tuesday
and the campaign must be between 32 and 43 days long.
The NDP elected 36 MLAs in Manitoba's 2007 general election, up one MLA from its
total in the 2003 general election.
"Tum on the turnout," Editorial, Winnipeg Free Press (24 May 2007) Al3.
Although, Mr. Chretien famously offered his assistance in the flood fighting efforts, tossing
one sandbag for the assembled press and promptly leaving the scene: "Voting in Manitoba,"
Editorial, Toronto Star(6 May 1997) A20.

• Stockwell Day was elected leader of the then opposition Alliance Party
on 8 July 2000. Canadians went to the polls 27 November that year,
despite the fact the Liberal Party was only three,and,aJhalf years into its
mandate.
• Mr. Harper was elected leader of the then opposition Conservative Party
of Canada on 20 March 2004. Canadians went to the polls 28 June that
year.
In each of these examples, the governing Grits sought to benefit from the
relative newness of opposition leaders. 8 As the painful performance of Mr. Day
in particular shows, the Liberal Party benefited from its ability to catch its
opponents off guard with a politically motivated election call.
Incumbent governments frequently use their ability to unilaterally trigger an
election for partisan motives. Scholars in both England and Canada
acknowledge our Westminster system of parliament allows this. From English
constitutional scholar Robert Blackburn:
[A]s everybody knows, a Prime Minister sets an election date at the time when he
thinks he is most likely to win it. Conversely, he will avoid such times as he is likely to
lose it. The anachronistic state of the law on electoral timing adversely affects the
fairness of the election process as a whole. 9
In Canada, meanwhile, the 2004 New Brunswick Commission on Legislative
Democracy found that:
An election will be called at a certain time for a certain date because that is usually
viewed as the most politically advantageous time to hold an election for the governing
party. This has become a contributing factor to heightened voter cynicism about the
democratic process. 10
As the commission noted, the negative repercussions of the incumbent's abuse
of the election date go beyond a pervading sense of unfairness. As other
commentators have found, voters are becoming increasingly cynical about the
electoral process in general. 11 This cynicism, unfortunately, is reflected in
consistently low voter turnout at the provincial and federal levels. Reform is
thus necessary to "fix Canada's unfixed elections". 12
10
See the remarks of Michel Guimond, MP for Montmorency-Charlevois-Haute -Cote -Nord,
during Bill C-16's second reading: House of Commons Debates, VoL 141 No. 048 (19
September 2006) at 4175.
"Electoral Law and Administration" in Robert Blackburn & Raymond Plant eds.,
Constitutional Reform: 1he Labour Government's Constitutional Reform Agenda (London:
Addison Wesley Longman Limited, 1999) 82 at84.
New Brunswick, Commission on Legislative Democracy, Final Report and Recommendations
(Fredericton: Commission on Legislative Democracy, 2004) at 57.
11
Henry Milner, "Fixing Canada's Unfixed Election Date: A Political Season to Reduce the
Democratic Deficit" (2005) 6:6 IRPP Policy Matters 3 at 22.
n Ibid. at 18.

4 Underneath the Golden Boy
Ill. FIXING THE PROBLEM
A. How it Works
The operation of fixed date election legislation is not complicated. Essentially,
the law is drafted to ensure voters will head to the polls at a set date in the
future. The incumbent's ability to arbitrarily drop the writ is removed, taking
with it a massive-and unfair-advantage over its challengers. As will be
further discussed below, fixed date election legislation does not lock Parliament
into four years of futility in the event of a minority situation where the
government has lost the confidence of the House. In these situations, the
Lieutenant Governor or Governor General remains free to dissolve Parliament
to resolve the issue. 13 Instead, fixed date election legislation simply removes the
incumbent's unfair, unilateral and arbitrary ability to terminate a session of
Parliament because to do so is politically expedient. As fixed date election
proponent Henry Milner has noted:
It is unrealistic to expect every legislature to be always capable of replacing a
government that has lost the support of its majority. To avoid a stalemate situation in
which no government can be formed, parliamentary systems with fixed election dates,
as a rule, make it possible, though seldom easy, to bring about early or premature
elections. 14
Understood this way, fixed date election legislation should be viewed as
restricting the avenues by which an incumbent may call an election (but not
eliminating the opportunity for a premature election altogether) and, more
importantly, as simply setting a maximum shelf life for Parliament. The term for
Parliament may vary depending on the jurisdiction's legislation, but whenever
that term expires, an election will be held.
B. Examples from other Provinces
Three prmjnces and the federal government currently operate on a fixed date
election system. 15 These laws can serve as a model for similar Manitoba
legislation. The B.C. legislation, passed in 2001, was the first of its kind in
Canada. 16 It amended the B.C. Constitution Act to set a 17 May 2005 election
13
House of Commons Debates, Vol. 141 No. 047 (18 September 2006) at 2876 (Hon. Rob
Nicholson) [House of Commons Debates (18 September 2006)]. Speaking to the required
flexibility of fixed date election legislation, Mr. Nicholson said that includes "the
requirement that the government have the confidence of the House of Commons and we
respect the Queen and the Governor General's constitutional power to dissolve
Parliament.''
l4 Supra note 11 at 14.
15
Ontario, B.C. and Newfoundland have each passed fixed date election legislation.
16 Bill 7, Constitution (Fixed Election Dates) Amendment Act, 2ru1 Sess., Jh Leg., British
Columbia, 2001.

date and provide for elections every four years after that date. 17 Similar forms of
this legislation were adopted in Ontario 18 and Newfoundland. 19 More recently,
the Harper federal government passed its own fixed date election legislation. 20
The federal law was also modeled after B.C.'s legislation. 21 It amends s. 56.1(1)
of the Canada Elections Act 22 to state that nothing related to fixed date elections
will affect the power of the Governor General. This creates a degree of
flexibility, allowing premature elections to be called in situations where the
government has lost the confidence of the House or there is legislative
deadlock. Section 56.1(2) of the Canada Elections Act states that, subject to s.
56.1(1), a federal election must be held on a set date at four year intervals.
Then Minister for Democratic Reform Rob Nicholson spoke to the bill during
its second reading in the House on 18 September 2006. He said the bill would
eliminate: "[A] situation where the prime minister is able to choose the date of
the election, not based necessarily on the best interests of the country but on
the best interests of his or her political party." 23 Nicholson said the bill should
provide five major benefits: fairness, transparency, improved governance, higher
voter turnout and the attraction of better candidates. 24 These comments are
consistent with scholarly analysis of the benefits of fixed date election
legislation, 25 and they are also in line with the Canadian public's general support
for fairness through fixed date election legislation. 26 There is no compelling
reason why Manitoba shouldn't join B.C., Ontario, Newfoundland and the
federal government by passing a law that sets election dates. 27
17
R.S.B.C. 1997 c. 66, s. 23(2) states that "a general voting date must occur on May 17, 2005
and thereafter on the second Tuesday in May in the fourth calendar year following the
general voting day for the most recently held general election."
18
Bill 214, Election Statute Law Amendment Act, pt Sess., 38th Leg., Ontario, 2005.
19
Bill40, An Act to Amend the House of Assembly Act and the Elections Act, pt Sess., 45ch Leg.,
Newfoundland, 2004.
20
Bill G 16, An Act to amend the Canada Elections Act, 1•t Sess., 39th Parl., 2007.
21
House of Commons Debates, Vol. 141 No. 047 (19 September 2006) at 2922 (Randy Kamp).
S.C. 2000, c. 9.
23
House of Commons Debates ( 18 September 2006), supra note 13 at 2876.
Ibid.
25
See for example, Blackburn, supra note 9; New Brunswick, Commission on Legislative
Democracy, supra note 10; and Milner, supra note 11.
26
Several polls have indicated strong support for fixed date elections. A June 2006 lpsos Reid
national poll, for example, found "about dght of 10 respondents" agreed with fixed date
election reform: Jack Aubry, "Elected Senate, fixed election dates have support of
Canadians, poll suggests" Ottawa Citizen (12 June 2006).
27
In fact, two private members' bills calling for set election dates have been recently brought
forward in the Manitoba Legislature: Bill 219, The Legislative Assembly Amendment Act (Set
Date Elections), ,Sth Sess., 38th Leg., Manitoba, 2006 and Bill 205, The Legislative Assembly

6 Underneath the Golden Boy
IV.THE CoNSTITUTIONALITY QuESTION
Concerns have been raised about the constitutionality of fixed date election
legislation. The nature of these concerns and an explanation of why they do not
apply to fixed date election legislation will be discussed.
A. The Office of the Lieutenant Governor
Section 41(a) of the Constitution Act, 1982 28 requires unanimous consent from
the Senate, House of Commons and each province's Legislative Assembly for
any laws that infringe on the office of the Governor General and the Lieutenant
Governor. This poses a problem for fixed date election legislation, some critics
argue, because such a law removes the Queen's representative's Royal
Prerogative to dissolve or prolong Parliament at any point. 29 While the prime
minister or premier provides the necessary advice to the Queen's representative
(which gives the government the power to set election dates in practice),
constitutional convention holds that the Lieutenant Governor or Governor
General is always free to unilaterally oppose this advice. 30 Thus, it is argued, any
attempt to force the Queen's representative to either call an election or to
prolong Parliament infringes on the "office of the Lieutenant Governor" or
Governor General set out in the Constitution. This has been argued by Eugene
Forsey:
Any provincial act attempting to set up such a system would certainty be held void,
being ultra vires, since the B.N.A. Act expressly prohibits the legislature from touching
'the Office of the Lieutenant Governor.' Undoubtedly the legal power to dissolve the
legislature at any moment is part of 'the Office of the Lieutenant Govemor.' Hence,
any attempt to curtail that power would be beyond the powers of the legislature, and
could be validated only by an amendment to the British North America Act. 31
Amendment Act (Set Date Elections), Jd Sess., 38r 11 Leg., Manitoba, 2005. Both bills did not
pass first reading.
28
Constitution Ace, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
29
See, for example, the works of former Canadian senator and constitutional expert Eugene
Forsey. Forsey adamantly opposed any attempts at fixed date election legislation on the
grounds that it infringed on the office of the Queen's representative.
30
Such an event is rare, but it has occurred in Canada. In 1925, Governor General Lord Byng
refused then Prime Minister Mackenzie King's request for dissolution of Parliament and
instead asked the opposing Taries, led by Arthur Meighen, to form government.
31
Eugene Forsey, "Extension of the Life of Legislatures 11 (1960) 26 Canadian Journal of
Economics and Political Science 604 at 609.

The Constitution Act, 1982 32 and the Constitution Act, 186i 3 both set the
maximum life of Parliament at five years. Fixed date election legislation in place
across Canada, meanwhile, simply reduces the maximum duration of Parliament
to four years. This reduction does not offend constitutional provisions, nor does
it require unanimous amendment from the Senate, House of Commons and
provincial Legislative Assemblies. This is because, as will be seen below,
changes made by fixed date election legislation fall outside the office of the
Lieutenant Governor.
B. Parliament's Maximum Shelf Life: Outside the Office
Considerable discussion has developed over the question of whether fixed date
election legislation infringes on the Royal Prerogative held by the Queen's
representative. Constitutional law expert Peter Hogg has given federal fixed
date election legislation cautious approval, but his reasoning rests on somewhat
creative grounds. 34 Essentially, the argument is this: legislation cannot remove
the ability of the Queen's representative to dissolve Parliament, thus the
Lieutenant Governor or Governor General always retains the ability to refuse
the premier or prime minister's advice to call an election because the legislation
expressly preserves the Royal Prerogative. Seen this way, the legislation should
be viewed as mere persuasive language that forces the premier or prime minister
to ask the Queen's representative for an election-as opposed to forcing the
Queen's representative to grant one.
There is another simpler answer to the constitutionality question. As has been
previously mentioned, the most significant change created by fixed date
election legislation is the reduction of Parliament's maximum duration from five
years to four years. Fixed date election legislation does not remove the ability of
the Queen's representative to call a premature election because constitutional
realities--such as the confidence convention-require this to be so. 35 As a
result, the law could only be unconstitutional if it forces the Queen's
representative to call an election in a manner that offends the Royal
32
Canadian Charter of Rights and Freedoms, s. 4(1), Part I of the Constitution Act, 1982, supra
note 28.
33
Constitution Act, 1867 (U.K.), 30 & 31 Viet., c. 3, s. 50, reprinted in R.S.C. 1985, App. II,
No.5.
34
Peter W. Hogg, Constitutional Law of Canada, 5th ed. (Scarborough, Ont.: Thomson
Carswell, 2005) at 281. In an explanatory footnote related to B.C. fixed date election
legislation, Hogg states that: "In order to avoid the possible invalidating effect of s. 41(a) of
the Constitution Act, 1982 ... it might have been preferable to frame the statute as a
directive to the Premier to provide the requisite advice for a dissolution in time for the
fixed election dates. Perhaps the statute could be read in that fashion in order to avoid any
constitutional doubt. 11
35
House of Commons Debates (18 September 2006), supra note 13 at 2876 (Hon. Rob
Nicholson).

8 Underneath the Golden Boy
Prerogative, as opposed to prohibiting the Queen's representative from
dissolving the House. The only time a Lieutenant Governor or Governor
general would be "forced" to call an election is at the date prescribed by
legislation. This date is nothing more than the ceiling for that particular
Parliamenes life-the only difference between this law and the unfixed election
status quo is that the ceiling has been lowered from five years to four years. A
mandated election at the end of four years infringes on the office of the
Lieutenant Governor or Governor General no more than the current five year
requirement does.
The understanding of the scope of the office of the Queen's representative and
whether the maximum shelf life of a Parliament falls within it is central to this
argument. Constitutional documents that separate the powers of the Q.Ieen's
representative and the maximum duration of Parliament support the position
that it does not. So too does long held Parliamentary tradition.
1. Constitutional documents
In Canada, the Constitution Act, 1867 and Constitution Act, 1982 set out the
maximum duration for any Parliament at sections 50 and 4(1), respectively.
Section 4 of the Constitution Act, 1982 falls under the "Democratic Rights"
heading of the act, many sections removed from s. 4l(a), the requirement for
unanimous amendment for laws that touch on the "office of the Queen, the
Governor General and the Lieutenant Governor of a provincen. If the
maximum duration of Parliament was intended to fall within the scope of the
office of the Queen's representative, it stands to reason the sections would be
connected in some way. They are not, which suggests the two ideas are not
related. The same reasoning also applies to the Constitution Act, 1867. 36
2. Parliamentary tradition
History also suggests the maximum shelf life of Parliament falls outside the
office of the Queen's representative. The confusion about the relationship
between the two may be due in part to the amorphous nature of the Royal
Prerogative itself. As A. V. Dicey has said,
36
Section 50 of the Constitution Act, 1867 is located under the "Legislative Power 11 heading of
the document. Compare this to other sections of the same act that speak to the powers to
be exercised by the Governor General and Lieutenant Governor: s. 55, which deals with
the requirement for royal assent for bills, falls under the "Money Votes; Royal Assent"
heading. Moreover, the explicit reference to the 11 0ffice of the Lieutenant Governor" noted
by Forsey is sourced in the since repealed s. 92(1), which was located under the 11 Exclusive
Powers cf Provincial Legislatures" heading in a different section of the act. It stands to
reason that the maximum term of Parliament and the delineation of the powers of the
Queen's representative would be located in the same section if they were intended to be
inclusive of each other.

No one really supposes that there is not a sphere, though a vaguely defined sphere, in
which the personal will of the Queen has under the constitution very considerable
influence. The strangeness of this state of things is ... that the rules or customs which
regulate the personal action of the Crown are utterly vague and undefined. 37
To put it another way, the size of the office of the Queen's representative is
difficult to define. It is part of the uunwritten Constitution" 38 and as a result
makes up one of the many conventions that are woven together to form part of
this country's Constitution. This tradition is inherited from our English roots,
and in that country governments have changed the maximum duration of
Parliament at several times. First, the Triennial Act 1694 set the maximum
duration of Parliament at three years. 39 This was followed by the Septennial Act
1715, which extended the maximum life of a single Parliament to seven years. 40
Finally, some 200 years later, the Parliament Act 1911 set the limit at the
current five year mark. 41 Dicey's writings indicate the passing of the Septennial
Act 1715 raised eyebrows not for its change of Parliament's duration itself, but
the fact that "an existing Parliament of its own authority prolonged its own
existence." 42
Other authorities from Dicey's era likewise believed Parliament acted within its
authority when it changed its maximum duration. William Anson quickly
dismissed contrary arguments in his review of the 1911 act, stating that: "We
may leave out the reduction of the life of Parliament to five years." 43 James
Randall, writing in the Columbia Law Review, noted that: "The acts of 1716 and
1911, therefore, did not concern the position of the king with reference to
parliament, but the position of parliament in relation to the people and also to
parties". 44 Furthermore, the shortening of Parliament was no more than "a
rather obvious concession" the goverrunent offered to offset reform that greatly
reduced the power of the Lords. 45 These authorities indicate the prevailing
belief at the time was that changes to the duration of Parliament were little
more than an afterthought in British parliamentary history. They were certainly
not viewed as derogating from the Queen's power.
:, 7 A. V. Dicey, Introduction to the Study of the Law of the Constitution, lOch ed. (London:
MacMillan & Co. Ltd, 1965) at 462.
38
Ibid.
39
Triennial Act 1694 (U.K.) 6 & 7 Will. & Mar. c. 2, s. 3.
40
Septennial Act 1715 (U.K.) 2 Geo I c. 38.
41
Parliament Act 1911 (U.K.) 1 & 2 Geo. 5. c. 13, s. 7.
42
Supra note 37 at 46-47.
43
44
William R. Anson, "The Parliament Act and the British Constitution" (1912) 12 Colum. L
Rev. 673 at 675.
James G. Randall, "The Frequency of Duration of Parliaments" (1916) 10 American
Political Science Review 654 at 682.
45
Ibid. at 675.

10 Underneath the Golden Boy
Recent authorities likewise support Dicey's view. The House of Lords
acknowledged the question of whether Parliament could reduce its duration
with the Parliament Act 1911 (as fixed date election legislation purports to do)
borders on redundant: "No one doubts, of course, that it was open to
Parliament to restrict its maximum duration to five years, which is the current
rule". 46 Blackburn similarly states that: ((To justify the present method by
arguing that dissolution has always been a prerogative act taking place outside
either chamber is to rely upon practices and ideas from a bygone era." 47
Both the construction of our own Constitution and our parliamentary history
indicate Parliament has the right to set limits on its own duration. Fixed date
election legislation remains constitutional to the extent that it does this without
denying the Lieutenant Governor or the Governor General the ability to
dissolve the House before the set election date occurs.
C. Addressing the Critics
Forsey, a staunch critic of fixed date election legislation, has termed it "illegal;
futile even if it were legal; and if it were both legal and effective, it would tie the
Government's hands without performing any useful function whatsoever." 48 He
supports his position by referring to Re The Initiative and Referendum Act, where
the Judicial Committee of the Privy Council found Manitoba legislation that
would have eliminated the need for the Lieutenant Governor's royal assent for
bills in limited circumstances was ultra vires the province. 49 Forsey concludes his
argument by stating that: "Exactly the same reasoning would apply to any
attempt to take away or curtail the power to dissolve. The judgment is
conclusive." 50 It is not disputed that the Queen's representative must retain the
power to dissolve Parliament prematurely. The shortcoming of Forsey's
argument, however, is that it pulls the authority to set the maximum duration
of Parliament from government and gives it to the Queen's representative. As
stated above, our constitution and parliamentary tradition do not support this
view. Most fatal to Forsey's argument, however, is his own admission that
legislatures do have the ability to set their own lifespan. As he notes, Manitoba's
government passed legislation to extend the life of future legislatures from four
to five years in 1908. 51 If Manitoba's Legislature could extend its maximum
46 Jackson and others v. Her Majesty's Attorney General, [2005] UKHL 56, [2006] 1 A.C. 262 at
para. 108.
47
Robert Blackburn, "The Dissolution of Parliament: The Crown Prerogatives (House of
Commons Control) Bill1988" (1989) 52 Mod. L. Rev. 837 at 839.
48
Supra note 31 at 610.
49
[1919] A.C. 935.
50
Supra note 31 at 609.
51
Ibid. at 605, where Forsey refers to a number of similar provincial acts including Manitoba's:
An Act to amend "The Legislative Assembly Act", 7-8 Ed. VII, c. 25, s. L

duration without infringing on the office of the Lieutenant Governor, surely it
can also reduce its duration without offending s. 41(a) of the Constitution Act,
1982.
Critics of fixed date election legislation also refer to Ontario Public Service
Employees' Union v. Ontario (Attorney General), where the Supreme Court of
Canada held that government cannot remove the Lieutenant Governor's power
to dissolve Parliament:
The fact that a province can validly give legislative effect to a prerequisite condition of
responsible government does not necessarily mean it can do anything it pleases with
the principle of responsible government itself. Thus, it is uncertain, to say the least,
that a province could touch upon the power of the Lieutenant Governor to dissolve
the legislature ... without unconstitutionally touching his office itself.5 2
Those who extend this case to support an attack on the constitutionality of
fixed date election legislation fall into the same trap as Forsey. Again, such an
attack takes the breadth of this statement outside its scope-OPSEU stands for
the proposition that the Lieutenant Governor always retains the power to
dissolve the House before the statutorily prescribed maximum duration has been
exceeded. Fixed date election legislation respects his power. However, the
Lieutenant Governor does not have the power to refuse to dissolve parliament
when its maximum duration-as determined by the law-has been met. To do
so would be to act outside the office of the Lieutenant Governor. Thus OPSEUJ
like Re The Initiative and Referendum Act before it, simply cannot be used to
support the proposition that ftxed date election legislation infringes on the
office of the Lieutenant Governor and is therefore unconstitutionaL
V. CONCLUSION
Manitoba's unfixed election dates allow the incumbent to use its ability to set
an election date for purely partisan purposes. History has shown repeated abuse
of this power to the detriment of the electoral process, governance, and in the
end, the electorate itself. Other provinces and the federal government have
already established their own fixed date election legislation-it can be done,
and it should be done. There are no compelling reasons why Manitoba's
government should resist a move to set election dates.
52
[1987] 2 S.C.R. 2 at para. 101 [OPSEU].

Inquiries
BRYAN SCHWARTZ & ANDREW BUCK
I. INTRODUCTION
I
nquiries have a long and storied history in Canada. Described as a
"classically Canadian union of law and politics", 1 inquiries have special
investigatory and coercive powers that are not available in the traditional
2
legal system. As a result, they are often able to fill in the gaps where traditional
judicial remedies have failed by investigating, educating and informing the
government and public about matters of great importance. 3 Inquiries are
tremendously powerful digging devices that can unearth previously unseen
nuggets of information that, like all "searches for the truth", 4 should lead to
improved policy, improved confidence in the political system and improved
governance. As the Supreme Court has said:
In times of public questioning, stress and concern [inquiries] provide the means for
Canadians to be apprised of the conditions pertaining to a worrisome community
problem and to be a part of the recommendations that are aimed at resolving the
problem ... They are an excellent means of informing and educating concerned
members of the public. 5
There is, unfortunately, a fundamental problem with the statutory framework
that governs inquiries in Canada. Consider that inquiry reports are rarely
A. Wayne MacKay, "Mandates, Legal Foundations, Powers and Conduct of Commissions
of Inquiry" (1989) 12 Dal. L.J. 29 at 30.
See the Manitoba Evidence Act, R.S.M. 1987, c. E150, C.C.S.M. c. E150, at s. 88{1): Powers
to summon witnesses. The section gives inquiry commissioners the power to summon
witnesses and examine them under oath.
Robert Centa & Patrick Macklem, "Securing Accountability Through Commissions of
Inquiry: A Role for the Law Commission of Canada" in Allan Manson & David Mullan,
eds., Commissions of Inquiry: Praise or Reappraise (Toronto: Irwin Law, 2003) 79 at 80. See
also Ontario Law Reform Commission, Report on Public Inquiries {Toronto: Ontario Law
Reform Commission, 1992) at 9 on the principal functions and value of inquiries.
Alberta Law Reform Institute, Proposals for Refmm of the Public Inquiries Act: Report No. 62
(Edmonton: Alberta Law Reform Institute, 1992) at 16.
Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) , [1995] 2
S.C.R 98 at 137-38.

14 Underneath the Golden Boy
complementary-in fact, they almost inevitably involve allegations of serious
wrongdoing. This, combined with legislation that allows the government of the
day unfettered discretion in its decision to call an inquiry, raises a serious
conflict. Given the commissioner's power to act as judge, jury and scold, 6 what
government would even consider signing its own death warrant by appointing
an inquiry that could expose its malfeasance As the Ontario Law Reform
Commission has said, an inquiry's independence may be its most valuable asset. 7
But, given the sitting government's ability to ignore bona fide calls for an
inquiry, that independence may be neutered by legislation that places far too
much discretionary power in the cabinet's hands. As history has shown, this
power has been mused in a manner directly contrary to the public interest.
Examples of the potential areas of abuse created by this discretionary power
include: 8
• The establishment of an inappropriately narrow or broad scope of
inquiry;
• The selection of a partisan commissioner; and
• The imposition of an unreasonably short time frame for a final report.
Something must be done to solve this problem. This paper proposes two
solutions: an independent body could be set up to determine when an inquiry
should be called and what its terms of reference should be. Or, ·given the
tremendous use of resources and the long time frame associated with inquiries,
Inquiry reports cannot contain findings of civil or criminal liability: Canada (Attorney
General) v. Canada (Commission of Inquiry on the Blood System in Canada - Krever
Commission), [1997] 3 S.C.R. 440 at para. 34 If(rever Commission]. However, a report's
scolding can nevertheless deliver a serious blow to a government or organization: see, for
example, the Commission of Inquiry into the Sponsorship Program and Advertising
Activities, Who is Responsible: Fact Finding Report (Ottawa: Public Works and Government
Services Canada, 2005) [Gomery Report], which is universally credited as helping to bring
down the Martin federal Liberal government. See also: Manitoba, Commission of Inquiry
into Allegations of The Elections Act and The Elections Finances Act during the 1995
General Election, Report of the Commission of Inquiry into Allegations of The Elections Act and
The Elections Finances Act during the 1995 General Election (Winnipeg: Election Inquiry
Commission, 1999) [Monnin Inquiry].
Ontario Law Reform Commission, supra note 3 at 213.
Relevant legislation allows a government to set the scope of an inquiry as widely or
narrowly as it chooses. Similarly, there are no neutrality requirements for the selection of a
commissioner. This created problems during the Gomery Commission, for example, when
former Prime Minister Jean Chretien accused Justice John Gomery of bias. Finally, the
federal government has been accused of terminating the Commission of Inquiry into the
Deployment of Canadian Forces in Somalia (Ottawa: Minister of Public Works and
Government Services Canada, 1997) by setting a premature reporting date that did not
allow commissioners to complete hearings: See Peter Desbarats, "The Independence of
Public Inquiries: Dixon v. Canada" (1997) 36 Alta. Law Rev. 252 at 252, commenting on
Dixon v. Canada (Governor in Council), [1997] 3 F.C. 169.

it may be more palatable to keep the official power to call an inquiry in the
government's hands, while handing off de facto power to an independent entity
that would file a preliminary report on whether an inquiry should be called.
While the government would not be legally bound to hold an inquiry in this
situation, it would likely find the public uproar generated by a baldfaced refusal
to call an inquiry too loud to ignore.
Inquiries are a powerful, expensive implement in the overall good governance
toolbox. As such, they should only be called when traditional legal
proceedings--criminal or civil-have failed to "get to the bottom of the
matter". 9 However, the current law on inquiries vests far too much power in the
government, allowing these devices to be inappropriately used as political
weapons, or worse, not even used at alL The light of an inquiry is supposed to
shine brightest in areas where full disclosure is in the public's interest. Political
expediency should be irrelevant, and this is why reform to Canada's inquiry laws
is necessary.
II. THE GOVERNMENT'S UNCHECKED DISCRETION
A. Broadly Worded Legislation
Legislation governing the creation and operation of inquiries grants the
government an incredible amount of discretion. Manitoba's inquiry
legislation-Part V of the Manitoba Evidence Act 10 -states that the Lieutenant
Governor in Council can call an inquiry when it deems it "expedient to cause
inquiry into and concerning any matter within the jurisdiction of the
Legislaturen. This subject matter need only be connected with one of a number
of broad government responsibilities, including "good government" and "the
administration of justice within the province". 11 Canada's Inquiries Act 12 likewise
grants unchecked discretion to government. Section 2 of the Inquiries Act reads:
The Governor in Council may, whenever the Governor in Council deems it expedient,
cause inquiry to be made into and concerning any matter connected with the good
government of Canada or the conduct of any part of the business thereof.
While the courts can decide if the subject matter to be examined by an inquiry
is within the government's jurisdiction, they cannot decide if the inquiry would
be expedient and in the public interest. As a result, the government is left with
"virtually untrammeled discretion to establish a public inquiry''Y Justice John
Gomery, writing after the release of his report into the alleged sponsorship
Krever Commission, supra note 6 at para. 5.
10
See Manitoba Evidence Act, supra note 2 at ss. 83-96.
11
Ibid. at ss. 83(1) (a) and (c).
12
R.S.C. 1985, c. I-11.
13
Alberta Law Reform Institute, supra note 4 at 24.

16 Underneath the Golden Boy
scandal in Quebec, 14 described s. 2 of the federal Inquiries Act as ''so vague and
all inclusive that it is fair to conclude that there is really no matter that cannot
be the subject of an inquiry, if the government decides to create a
commission." 15 The two emphasized letters in Gomery's statement are of
massive significance. As the legislation indicates, there are limited legal means
to force a government to call a sorely.-needed inquiry if it chooses to duck the
issue completely.
B.. An Unfortunate Track Record of Abuse
The "untrammeled" discretion afforded by legislation would be of no
significance if governments did not choose to abuse this power. However, as the
history of several Canadian governments indicates, inquiries are often delayed
until after the election of a new administration that is no longer afraid of
proceedings into allegations of political malfeasance.
1. Ipperwash
The basic facts and rough timeline surrounding the 6 September 1995 shooting
death of unarmed Aboriginal protester Dudley George were well known within
a few weeks of the incident. 16 The exact circumstances surrounding his deathincluding
the Harris provincial government's involvement and its directions to
Ontario Provincial Police C'OPP'•) leading up to the shooting-remained
unknown. As a result, Aboriginal leaders almost immediately called for an
"impartial inquiry ... to determine what happened when Ontario Provincial
Police fired on native protesters". 17
In the ensuing weeks, months and years, various criminal and civil proceedings
associated with the incident worked their way through the courts. 18 However,
the Harris government's involvement remained unknown. despite repeated
opposition and media calls for an inquiry. 19 With no requirement to force it to
call an inquiry, the government continued to let these calls go unanswered,
even using its majority in the Legislative Assembly to vote down an opposition
14
See the Gomery Report, supra note 6.
15
John H. Gomery, "The Pros and Cons of Commissions of Inquiry" (2006) 51 McGill L.J.
783 at 785 [emphasis added].
16
Murray Campbell, "Native leaders seek inquiry into fatal shooting by police" The Globe and
Mail (8 September 1995) Al.
17
Ibid.
18
Acting Ontario Provincial Police Sgt. Kenneth Deane, who fired the bullet that killed Mr.
George, was convicted of criminal negligence causing death in 1997: "Pressure is building
for an lpperwash inquiry," Editorial, The Globe and Mail (5 September 2001) A12.
19
Ibid.

"''""1""''"""'""
""''
motion for an inquiry.w Premier Mike Harris eventually ceded control of his
party to Ernie Eves, yet still no inquiry was called, despite outstanding policy
questions like proper government procedure in the event of conflict with
Aboriginals, the relationship between the government and the OPP and an
examination of measures to keep a similar event from happening in the future. 21
In time, Ontario Justice Sidney Linden was appointed to preside over an inquiry
into the matter. It should be noted, however, that Justice Linden was not
appointed by the Ontario Tories-he was appointed by the newly installed
McGuinty Liberal government, which had campaigned on a promise to call an
inquiry. 22 It was a richly ironic move, considering the essence of an inquiry is
supposed to be its independence from government. 23
2. Crocus
Manitoba's Crocus Investment Fund, a labour sponsored fund with about
34 000 shareholders, suddenly halted trading on 10 December 2004. The fund's
directors later announced a $46..million writedown in the value of its
investment portfolio, a move that sent shockwaves through Manitoba's
relatively small investment community. 24 A subsequent Provincial Auditoes
report found that while the government wasn't directly responsible for the
wilted fund, it was aware of several significant management deficiencies. 25 An
RCMP probe was launched the next year, 26 but-like Ipperwash-the
governing party refused to call an inquiry into the matter. Making matters
worse, a leaked briefing paper obtained by the media several years after the
scandal broke showed the government made three changes to the fund's
legislative structure at the request of its officials when it appeared a collapse
20
Richard Mackie, "Tories voce down bill calling for probe into Harris's involvement in
lpperwash" The Globe and Mail (10 December 1999) A6.
2l
See Centa & Macklem, supra note 3 at 86: "[DJespite these compelling policy concerns and
despite the fact that there are no legal barriers to the establishment of a commission of
inquiry, the Government of Ontario ... has consistently refused to hold an inquiry into the
circumstances surrounding Mr. George's death."
Richard Mackie, "lpperwash shooting probe launched" The Globe and Mail (13 November
2003) A7.
23
See Ontario Law Reform Commission. supra note 3 at 206: "Although the independence of
public inquiries is not absolute, its central features should be protected. If they could not be
protected, the case for retaining public inquiries as a unique instrument of government
would be weakened considerably."
24
Mia Rabson, "Fund needed 'closer look' by province, auditor says" Winnipeg Free Press (31
May 2005) Al.
z 5 Ibid.
26
Paul Egan, "Crocus faces RCMP probe''Winnipeg Free Press (15 June 2005) Al.

18 Underneath the Golden Boy
might be imminent. 27 Unlike lpperwash, there still has been no inquiry called,
and as a result, several important issues remain unanswered. 28 If, as Cory J. has
said at the Supreme Court of Canada, the role of hquiries is to "get to the
bottom" of public disasters, 29 such an investigation into Crocus's demise would
be especially appropriate. As a local editorial noted:
[A]s the bleeding stops, Manitobans deserve to know why the bleeding started in the
first place, why the blood trail went unnoticed and why when it was noticed and
brought to the Doer government's attention it was not stemmed. Manitobans deserve
to know how it is that over 13 years some $350 million changed hands to produce a
fund that was last evaluated as having a value of just $96 million. 30
The need for an inquiry into Crocus goes beyond the simple matter of placing
blame, though that may too be a valuable exercise. The Auditor General's
report chastised the Manitoba Securities Commission for failing to forestall the
collapse, leaving Manitoba's investment climate to wallow in "needless anxiety,
rumour, suspicion and acrimony" (as one editorial described it) while important
governance questions continue to go unanswered. 31 These are important policy
questions that should be answered in the advancement of the public interest.
The tangled mess of information and web of "who knew what" may be a
Gordian knot when viewed through the lens of the traditional legal and political
system, but the problem is well suited to an inquiry. 32
C. Who Can Blame Them
As both of the above examples indicate, governments that are prepared to try to
ride out a political storm by refusing to call an inquiry are completely free by law
to do so. Many governments have chosen this route, and who could blame
them When faced with the prospect of the scarlet letter of an inquiry's report,
what government would put its head in the noose by acquiescing to demands
for an inquiry This phenomenon, created by current legislation and political
27
Tom Brodbeck, "Evidence mounts" Winnipeg Sun (13 March 2007) 5. Despite a "backlog"
of allegations of governmental malfeasance, the province's office of the auditor,general has
not been given additional resources in 10 years: Tom Brodbeck 1 "Give AG the tools"
Winnipeg Sun (15 March 2006) 2.
28
Also unlike lpperwash, the same provincial government remains in power in Manitoba as of
the time this paper was written.
29
Krever Commission, supra note 6.
30
"Call inquiry into Crocus," Editorial 1
Winnipeg Free Press (11 June 2005) A14.
31
"Disclosure at Crocus," Editorial, Winnipeg Free Press (27 December 2004) A16.
32
See Carl E. Singley, "The Move Commission: The Use of Public Inquiry Commissions to
Investigate Government Misconduct and other Matters of Vital Public Concern" (1986) 59
Temp. L.Q. 303 at 323: 'Public inquiry commissions have their greatest value in those
circumstances in which the actions of government officials fall into those gray areas
involving conduct that, though not clearly illegal, is widely perceived to be improper."

practice, has been well documented. Robert Centa and Patrick Macklem have
described several of these "disincentives)! to calling inquiry, noting that:
[T]he fear that the commission will not absolve the government from blame or
responsibility is another disincentive to the establishment of a commission of inquiry
... It is much easier for a government to minimize the damage of attacks by members of
the opposition as mere partisan posturing, than to evade the findings of a commission
of inquiry. The fear that the government could be embarrassed by revelations at
commtsston or the release of a commission's report therefore serves as a
significant disincentive to the establishment of a commission of inquiry. 33
Another commentator has similarly discussed the potential for "partisan
considerations to undermine objective and independent policy analysis." 34
The power of an inquiry has also been inappropriately unleashed as a means of
diverting attention from a current scandal, or in an attempt to bring a previous
administration into disrepute. 35 In the end, it need not matter whether a
government has refused to heed bona fide calls for an inquiry or whether it has
called an unnecessary inquiry in bad faith. Both are examples of deliberate
misuse of inquiries, and they should not be tolerated. Reform is thus necessary
to fix this problem.
Ill. CHECKS AND BALANCES: A PRELIMINARY INVESTIGATORY
BODY
A. How it Works
There is a simple answer to the problem of the politicized process that inquiry
establishment has become. As has been discussed, the problem stems from the
excessive discretion granted to government without any checks or balances.
The solution, therefore, is to either remove that discretion or to install a system
33
Centa & Macklem, supra note 3 at 91.
34
Peter Aucoin, "Contributions of Commissions of Inquiry to Policy Analysis: An Evaluation"
(1989) 12 Dal. L.J. 197 at 205.
35
See Tamar Witelson, "Declaration of Independence: Examining the Independence of
Federal Public Inquiries" in Allan Manson & David Mullan, eds., Commissions of Inquiry:
Praise or Reappraise (Toronto: Irwin Law, 2003) 301 at 304: "By on the perceived
independence of a public inquiry and its august commissioners, a government can
announce its intention to fairly investigate its culpability in a social tragedy when the
political heat is on. Then it can turn around and divert a commission's investigation away
from the most controversial mandated issues once the inquiry is underway, by withholding
resources, investigation time, and ordering the submission of a report before the
commission believes the issues have been fully addressed." See also Centa & Macklem,
supra note 3 at 90: ''A government may also have an incentive to establish a commission of
inquiry where the incident in question happened on the watch of a previous government. A
government may believe that political risks associated with an inquiry are mitigated when
the events in question predate its election."

20 Underneath the Golden Boy
of checks and balances. This can be done through one of two methods. 36 First,
an independent body could be appointed to determine-free from government
manipulation-if an inquiry should be called. A second solution would be to
create the same investigative body, but allow the government to have the final
say as to whether an inquiry will be called. This option leaves the power to call
an inquiry in the government's hands, but it would ignore a recommendation to
do so at its own peril because it "would be expected to explain to the public any
decision it made to depart from the preliminary investigator's
recommendations." 37
The first option represents a rapid departure from the current law. Its time may
come eventually, but the second non binding preliminary investigation option
appears to be a better fit in the interim. The philosophy behind such a move
can be summarized as follows:
The decision to hold an inquiry should not be made unilaterally by the government of
the day. A more balanced or independent body should decide, or at least be consulted
about, the need for an inquiry, the definition of its mandate, the procedures it will use,
the selection of the commissioners and their staff, and the safeguards that will be
installed to protect civil liberties. 38
The creation of a preliminary investigator, who would be able to review the
relevant evidence and interview witnesses associated with the subject matter at
hand, is crucial to this proposal. This investigation would be followed by a
report, which could recommend whether an inquiry is necessary and, if so, what
its terms might be. 39 From there, "The recommendation of the preliminary
investigator would be made available to other political parties and to the public
generally." 10 Given that public and political pressure appears to be one of the
few ways a government operating in the current legislative framework has been
persuaded to call a public inquiry, 41 an independent report from a credible
source that called for an inquiry could be virtually impossible for a sitting
government to ignore.
36
These proposals were originally submitted by Bryan Schwartz in his article "Public
Inquiries" in Allan Manson & David Mullan, eds., Commissions of Inquiry: Praise or
Reappraise (Toronto: Irwin Law, 2003) 443.
37
Ibid. at 449.
38
Ibid. at 455.
39
Ibid. at 449.
40
Ibid.
41
See, for example, Manitoba 1 s Filmon government, which called an inquiry into allegations
that its own party members engaged in vote rigging in three ridings in the 1995 general
provincial election after tremendous public scrutiny. The subsequent report of the Monnin
Inquiry was released in 1998 and it has been noted as one of the factors that led to the
Filmon government's defeat in the 1999 Manitoba general election.

There are several options that could be pursued toward the composition of an
independent recommendatory committee. Examples include:
• A public official from outside the legislature who could be elected using
the same procedural guidelines as the speaker of the House; 42
• A public official appointed by the Chief Justice of the province; and
• An all party standing committee. 43
B. Support for the Solution
Other commentators have also called for the establishment of an independent
inquiry appointing framework. Centa and Macklem have noted that:
If commissions of inquiry are to continue to secure political and governmental
accountability, steps should be taken to reduce or eliminate the sole discretion of
cabinets to establish commissions of inquiry. Fundamental reform is required to better
insulate the process of start-up from short-term and partisan polidcal pressures. A
cooler, more deliberate process should supplement Cabinet decisions made in the
midst of a real or apparent political crisis. 44
The authors go on to suggest the now disbanded Law Commission of Canada
("LCC") should assume the preliminary investigator role described above. 45
While the LCC is no longer an option, Centa and Macklem's idea has merit and
deserves future exploration.
Federal Department of Justice general counsel Ann Chaplin also supports this
idea, stating that "the notion of a two stage inquiry is one that could yield good
results." 46 Furthermore, she adds, similar models already exist in other
countries, including IsraeL 47
The initial investigation process has already found its way into Canadian
politics: the 2005 report issued by Bob Rae, Lessons to Be Learned, was an initial
investigation into whether an inquiry into the 1985 Air India Flight 182 disaster
would be appropriate. 48 Rae's report recommended the establishment of either a
42
An initial investigator could be elected by a simple majority vote by all MLAs, mirroring
the framework for the election of the speaker. See Rules, Orders and Forms of Proceedings of
the Legislative Assembly of Manitoba, rule 8(8).
43
For example, the committee could consist of two government MLAs, two opposition MLAs
and a non-partisan chair who could break any deadlocks: see Schwartz, supra note 36 at
449.
44
Centa & Macklem, supra note 3 at 118.
45
Ibid. at 121.
46
Ann Chaplin, 11 Commentary: Public Inquiries" in Allan Manson & David Mullan, eds.,
Commissions of Inquiry: Praise or Reappraise (Toronto: Irwin Law, 2003) 461 at 464.
47
Ibid.
48
Bob Rae, Lessons to Be Learned (Ottawa: Air India Review Secretariat, 2005) at 3: "This
report is not a definitive account of every event related to the Air India disaster but rather
an assessment of the issues that need to be examined more fully/'

24 Underneath the Golden Boy
though it does not necessarily flow from that argument that the legislation should try
to ensure that they are independent. 5
9
The law reform institute filed the above report some 15 years ago. Since that
time, governments have continued to abuse their unchecked discretion by
failing to call needed inquiries. The time has thus arrived for legislative reform
that ensures the full independence of inquiries. It is time to install measures
that would give a significant voice to an independent entity in the
establishment of inquiries.
59
Alberta Law Reform Institute, Public Inquiries: Issues Paper No. 3 (Edmonton: Alberta Law
Reform Institute, 1991) at 31.

Partisan Advertising by
Incumbent Governments
BRYAN SCHWARTZ & ANDREW BUCK
I.INTRODUCTION
T
he power of incumbency offers up a number of vehicles for government
messages to the electorate. In Manitoba, as an example, there is an
entire branch of the public sector devoted to communication.' In
addition to the public service, incumbents can make use of news releases,
official government documents like newsletters and glossy periodicals, the
government's website and other highly visible media like billboards, bus
advertisements and bulk mail outs. The value derived from the exposure of
incumbency and patronage further tips the communication balance away from
challengers and toward the governing party. As Richard Briffault explains, these
"built...in" advantages include:
[T}he free media attention he gets during his term in office, to the opportunity to
provide constituency service, to the fact that the incumbent was popular enough to
win the last election. These advantages contribute to, and are typically reinforced by,
the incumbent's superior ability to raise money. 2
Simply put, the government has a massive advantage over its rivals when it
comes to getting the word out. Why should exclusive use of the public purse for
partisan communication be added to this list Policy, jurisprudence and basic
electoral fairness suggest reform should be undertaken to address the
incumbent-challenger communications imbalance. This section of the paper
proposes two separate solutions to the problem: first, a total ban on all publicly
funded partisan government communication; and second, a comprehensive
Manitoba Civil Service Commission, "Communications Services Manitoba Division'\
Manitoba Civil Service Commission online: . The division's mandate is to "enhance the quality and cost-effectiveness of
government advertising and communications while ensuring consistency with provincial
objectives, priorities and expenditure guidelines.»
Richard Briffauh:, "Public Funding and Democratic Elections" (1999) 148 U. Pa. L. Rev.
563 at569.

26 Underneath the Golden Boy
publicly funded political communications regime to be shared by incumbents
and challengers alike.
ll. THE PuBLIC PuRSE AND PARTISAN ADVERTISING
A. The Cost of Communication
With the exception of Ontario/ all Canadian tyovinces are free to use public
funds to produce and disseminate partisan political messages. The Manitoba
NDP government spent $3.1 million dollars on government advertising in
2005-06, 4 ostensibly in the name of providing information to the public both
inside and outside the province. However, governments have frequently crossed
the line between informational advertising and "sham issue advocacy". 5 The
Doer NDP government's recent "Manitoba Means Business" advertising
campaign is illustrative. The billboard, television and print advertisement
campaign. touted as promoting the province•s export industry, ran less than a
year before a general election at a total cost of $340 000. 6 Certainly,
advertisements like this campaign can play a role in advocating a province as an
export trade partner if they are properly targeted to the correct market. The
problem with the "Manitoba Means Business" campaign, it was later revealed,
was that the advertisements ran exclusively inside Manitoba. 7 This example of
an incumbenes use of public funds for partisan promotion is only one in a
lengthy line of questionable campaigns footed by taxpayer dollars. There is a
long history of federally funded political advertisements designed to promote
partisan federalist issues at the expense of nationalist political opponents. 8
The responses of government actors who are asked to defend these self.-serving
campaigns range are largely unsatisfactory. Questioned about his government's
See the Government Advertising Act, S.O. 2004, c. 20, which prohibits publicly funded
partisan government advertising.
Mia Rabson, upcs want set election dates" Winnipeg Free Press {20 May 2007) AlO.
Paul NesbittJ Larking & Jonathan Rose, 11 Political Advertising in Canada" in David A.
Schultz, ed., Lights, Camera Campaign! Media, Politics and Political Advertising (New York:
Peter Lang, 2004} 273 at 289. For a definition of "sham issue advocacy" see Richard Hasen,
"The Surprisingly Complex case for Disdosure of Contributions and Expenditures Funding
Sham Issue Advocacy" {2000) 48 UCLA L. Rev. 265 at 267: "These are not really
advertisements about issues but are a form of electioneering without the words of express
advocacy."
Tom Brodbeck, "Costly propaganda" Winnipeg Sun (5 January 2007) 5.
Ibid.
NesbittJLarking & Rose, supra note 5 at 290: "[I]n 1992 when Canada celebrated its 125ch
anniversary, the federal government began an aggressive advertising campaign whose goals
seemed innocuous, but whose real purpose was to prime a federalist vote in the referendum
on a set of constitutional changes in the same year."

television campaign, which touted the province's attractiveness to young people
during a by election, Saskatchewan Youth Minister Glen Hagel said:
Most of Saskatchewan really does believe in the future of Saskatchewan, feels it's
appropriate to have a positive message about Saskatchewan, and that it's quite
appropriate to be continuing to say that. 9
In Ontario, the McGuinty government defended a colour change in a
govemmen produced newsletter from green to Liberal red-and then back to
green to avoid further embarrassment-as "simply internal communications". 10
The blue ribbon for justification of publicly funded partisan advertising,
however, is reserved for then Manitoba Health Minister Tim Sale. In response
to complaints about a government advertising campaign touting the benefits of
nursing thanks to NDP improvements, Mr. Sale replied that: "We had to tell
Manitobans now nursing has decent wages, it's an exciting career and they
should undertake that career." 11 These are all examples of partisan
communication campaigns that have been unjustifiably funded by public
money.
B. Spending and Contribution Limits: Compounding the
Problem
Arguably, any form of publicly funded partisan government advertising is
repugnant. However, recent electoral financial reform has further exacerbated
the power imbalance between incumbents and challengers.
First, consider the effect of spending limits on parties and third parties during
elections. The 2000 amendments to the Canada Elections Act, 12 which passed
constitutional muster in 2004's Harper v. Canada, 13 severely limit the amount
third parties can spend during an election. The vigorous dissent in Harper
acknowledged that, since meaningful speech during a campaign requires the
expenditure of sums of money that far exceed the spending limits, the Canada
Elections Act effectively prevents third parties from having their voices heard:
"The evidence shows that the effect of the limits is to prevent citizens from
effectively communicating their views on issues during an election campaign." 14
"Saskatchewan Party says NDP should halt ads during byelection" Canadian Press (8
February 2007) (QL).
10
Richard Brennan, "Slipping propaganda through the loopholes" Toronto Star (1May 2004)
H04.
ll
Frank Landry, "Gerrard accuses NDP of ad abuse" Winnipeg Sun (26 April2003), 6.
u Bill C2, An Act respecting the election of Members to the House of Commons, repealing other
acts relating to elections and making consequential amendments to other Acts, 2nd Sess., 36th
Pari., 2000, (assented to 31 May 2000), S.C. 2009, c. 9.
13
[2004] 1 S.C.R. 827 [Harper].
14
Ibid. at para. 3.

28 Underneath the Golden Boy
Similarly, new spending limits have been imposed on political parties
themselves. In Manitoba, for example, the Elections Finances Act sets expense
limits for parties and candidates that are calculated by a formula that involves
the number of electors in a given district and inflation adjustments. 15
Canada Elections Act also imposes similar spending limits for federal elections. 16
As Scalia J. of the United States Supreme Court has argued, in some settings
money should receive the same expression rights protection as speech. Referring
to American political contribution limits imposed by the Bipartisan Campaign
Reform Act, 17 Scalia J. said:
[W]here the government singles out money used to fund speech as its legislative
object, it is acting against speech as such, no less than if it had targeted the paper on
which a book was printed or the trucks that deliver it to the bookstore. 18
The
As a result, the spending limits imposed by provincial and federal legislation
work to stifle political speech. Lower expense limits reduce the amount of
political speech parties and candidates can produce and disseminate. Less
political speech inherently favours incumbents, who can ride voter apathy or
ignorance to another term. As Bruce Ackerman has noted:
Restricting the flow of cash may also skew the balance of power between incumbents
and their challengers. Incumbents go into each campaign with the accumulated
reputation they have generated through years of great visibility. Challengers need lots
of cash to offset this advantage. By placing an overall limit on funds, aren't we allowing
old-timers to tighten their grip on office under the banner of'reform' 19
Scalia J. puts it more bluntly in McConnell: "The first instinct of power is the
retention of power, and, under a Constitution that requires periodic elections,
that is best achieved by the suppression of election... time speech." 20
The effect of political contribution limits introduced at both the federal and
provincial levels must also be considered. In Manitoba, a recent amendment to
the Elections Finances Act banned all corporate and union contributions to
15
C.C.S.M. c. E32, ss. 50-52. Using 1999 registered voter numbers and including the
inflation index, each political party would have been able to spend $1.264 million in the
recent Manitoba general election. Additionally, ss. 50(2) and 51(2} of the Elections Finances
Act set advertising expense limits that are about one-half of the total expenditure amount
prescribed by the legislation. See Elections Manitoba, "Spending Limits", online: Elections
Manitoba .
16
S.C. 2000, c. 9, s. 440.
17
Pub. L. No. 107-155, 116Stat.81 (2002).
18
McConnell tt. Federal Elections Commission, 540 U.S. 93 (2003) at 252 [McConnell].
19
Bruce Ackerman, "Crediting the Voters: A New Beginning for Campaign Finance" in
Walter Dean Burnham, ed., The American Prospect Reader in American Politics (Chatham,
New Jersey: Chatham House Publishers, 1995) 218 at 220 [Ackerman].
20
Supra note 18 at 263.

political parties and candidates. 21 Individual contributions, meanwhile, were
limited to $3 000 annually. 22 The new Federal Accountability Act has similarly
eliminated union and corporate political contributions and set an annual $1 000
individual contribution limit. 23
Restrictions on political contributions, combined with election time spending
limits, add up to shut down all meaningful channels of political speech.
Consider the position of a challenger-subject to election tpending limits, they
must rely on getting their message out to the electorate in non election periods.
In Manitoba, this challenger would also be subject to an annual $50 000 non
election advertising spending limit. 24 Now, consider a challenger who has
complied with the relevant legislation and managed to get their message out,
albeit in a reduced and less meaningful form. That challenger still needs to find a
way to pay for that message, but contribution limits have clamped down on
traditional fundraising nurces. The net result is that contribution limits have
combined with expenditure limits to create a political deficit for potential
challengers. Simply put, it has become very difficult to break through and
convince voters to switch their support from a challenger to an incumbent. This
is a powerful advantage for governing parties.
Electoral reform to date has not addressed this power imbalance. While the
justification for electoral reform thus far has been the creation of a level playing
field, 25 it has failed to accomplish this goal and perhaps even worsened the
problem. While challengers are left with fewer means to disseminate their
messages, incumbents--subject to the same restrictions-can still rely on the
perks and privileges of incumbency. Comprehensive electoral reform requires
further measures to address the imbalance between incumbents and
challengers. The elimination of publicly funded government advertisements is
one such measure.
21
Elections Finances Act, supra note 15 at s. 41(1), as am. by The Elections Finances Amendment
Act, S.M. 2000, c. 9.
22
Ibid.
Bill G 2, An Act providing for conflict of interest rules, restrictions on election financing and
measures respecting administrative transparency, oversight and accountability, 1•t Sess., 39rn Parl.,
2006, d. 43 and 46(1) (assented to 12 December 2006), S.C. 2006, c.9.
24
Elections Finances Act, supra note 15 at s. 54.1(1): "[T]he total advertising expenses
incurred by a registered political party in a calendar year, outside an election year, shall not
exceed $50,000."
25
See Harper, supra note 13 at para. 62: "The Coures conception of electoral fairness a>
reflected in the foregoing principles is consistent with the egalitarian model of elections
adopted by Parliament as an essential component of our democratic society. This model is
premised on che notion that individuals should have an equal opportunity to participate in
the election process."

30 Underneath the Golden Boy
III. ADDRESSING TilE IMBALANCE
This paper proposes two independent solutions to the incumbent challenger
communications imbalance in Canadian politics. The first solution is a total ban
on all publicly funded partisan government communication, while the second
solution calls for a comprehensive publicly funded political mmmunications
regime to be shared by incumbents and challengers alike. The mechanics of
both solutions and their relative merits will be addressed, as well as their
potential shortfalls. The fundamental difference between them is that one seeks
to "level down" advantaged parties while the other seeks to "level up"
marginalized challengers. 26 The rationale underlying each solution is shared,
however, and it is firmly rooted in the concept of electoral fairness. This
rationale will now be discussed.
A. Attacking Unfairness: Reasons for Reform
As Canadian courts and commentators have both pointed out, recent
developments in election law have been justified on the basis that they promote
an egalitarian electoral process. As Andrew Geddis has said, commenting on
Harper, "[T]he majority of the Court agrees that a legitimately constituted
electoral system requires rules to limit the participation of some in order to
promote the overall of the process." 27 The Supreme Court of Canada
first raised this view in Libman v. Quebec (Attorney General), where it held that
third party spending limits for the duration of a referendum campaign could be
constitutional despite their intrusion on freedom of expression rights. 28 While
the court in that case found the scheme in question was too repressive to justify
the infringement, it nevertheless left the door open to future, less restrictive
third party limits on that basis. 29 When the Supreme Court upheld Parliament's
26
Hasen explains the distinction between of reforms that "level up" and "level down" in
"Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign
Finance Vouchers" (1996) 84 CaL L. Rev. 1 at 5 [Hasen]. Programs that level up
11
increas[e] the ability of those shut out of the political system to participate". Programs that
level down "decreas[e] the ability of those with disproportionate political capital to exercise
greater influence over the political system."
27
"Liberte, Egalite, Argent: Third Party Election Spending and the Charter'' (2004) 42 Alta.
L. Rev. 429 at para. 58. See also Colin Feasby, "Issue Advocacy and Third Parties in the
United Kingdom and Canada" (2003) 48 McGill L.J. 11 at para. 1: "[M]itigation of the
effect of uneven financing is a constitutionally valid objective of election regulations in
Europe and Canada".
28
[1997] 3 S.C.R. 569 at para. 42, where the court concluded '\:he pursuit of an objective
intended to ensure the fairness of an eminently democratic process, namely a referendum
on a question of public interest, is a highly laudable one".
29
Ibid. at para. 77.

L Ul L"'lUir 1 lUVCII"'-1U (; OJ IHLUIHOCHL \JUVCIHIIOC::HW
J L
2000 Canada Elections Act third party spending limit regime in Harper, it tied its
approval to the Libman line of reasoning:
The regime promotes the equal dissemination of points of view by limiting the election
advertising of third parties who, as this Court has recognized, are important and
influential participants in the electoral process. The advancement of equality and
fairness in elections ultimately encourages public confidence in the electoral system.
Thus, broadly speaking, the third party election advertising regime is consistent with
an egalitarian conception of elections and the principles endorsed by this Court in
Libman. 30
The same rationale should be extended to support either of the two proposed
solutions. The problem sought to be addressed by limits on election spending is
the same problem sought to be addressed by the proposed solutions: electoral
unfairness. Unlimited election spending is problematic because it can tip the
balance in favour of those who have the means to spend more:
[U]nlimited political expenditures not only perpetuate the unequal distribution of
wealth and put the poor at a disadvantage in the political arena but may also have the
effect of silencing the poor. The rich may ... so dominate advertising space in the
media and other public domains that the public will, in effect, hear only their
message. 31
Incumbents carry an enormous advantage into an election period, and it should
not be assumed that simply "leveling the field" for the length of the electoral
process will address this much broader problem.
B. Eliminating Public Funding for Partisan Political
Communication
Current electoral law creates an imbalance that cannot be overcome within the
constraints of campaign spending limits that apply equally to all parties. 32
Ontario has already addressed the need to reset this imbalance. The McGuinty
Liberal government's Government Advertisement Act, passed in 2004 and in force
as of 2006, eliminates public funding for advertisements whose primary
objective is "to promote the partisan political interests of the governing party". 33
The legislation applies to advertisements released by government ministries, the
30
Harper, supra note 13 at para. 63.
31
Owen Fiss, The Irony of Free Speech (Cambridge, Massachusetts: Harvard University Press,
1996) at 16.
32
Current political spending and contribution limits are facially neutral, yet they fail to
acknowledge the patent imbalance between incumbents and challengers. As Scalia J. noted
in McConnell, supra note 18 at 249 [emphasis original], "[T]his is an area in which
evenhandedness is not fairness. If all electioneering were evenhandedly prohibited,
incumbents would have an enormous aivantage. Likewise, if incumbents and challengers
are limited to the same quality of electioneering, incumbents are favoured."
33
Supra note 3 at s. 6(3).

32 Underneath the Golden Boy
Cabinet Office and the Office of the Premier. 34 It requires the office of the
auditor general to review all government advertising in advance of its release to
the public. 35 Advertisements that the auditor general decides are non partisan
are prohibited and sent back to the government for optional revision. 36 There
are exceptions to the ban on publicly funded government advertising: the
Government Advertisement Act does not apply to notices required by law, urgent
advertisements about public health or safety, job advertisements, or
advertisements about the provision of goods and services to a government
office. 37 The political party in power is also free to engage in its own partisan
promotion, provided the communication is not paid for by the public purse. 38
1. Drawing the line
Ontario's regime could be used to inform a similar legislative model in
Manitoba. Eliminating public funding for partisan government advertisements is
not contentious, but, as Ontario has already shown, the crucial component of
the regime lies in where the line is drawn between what is viewed as
"informational" and what is viewed as "partisan". Manitoba should thus follow
Ontario's lead and ban the latter, but legislators must take care not to set the
net too wide or too narrow. As Colin Feasby indicates, in the context of casting
the election advertising regulatory net,
The neutrality of [an] advertisement indicates that: it does not threaten to destabilize
the balance of resources among candidates and political parties. Indeed, this is the type
of advertisement that should be viewed as agenda,setting and intrinsically valuable to
the political process. 39
The same reasoning could be applied to the distinction between informational
and partisan advertising: if the content upsets the balance between the parties
without adding any intrinsic value to the political process, it should be viewed
as partisan and subjected to a public funding ban. This view is consistent with
the recommendations of the Lortie Commission, which proposed a broad
34
35
36
37
38
.39
Ibid. ats. 1(1).
Ibid. at s. 2(3).
Ibid. at s. 2(4).
Ibid. at s. 2 (5).
See ibid. at s. 1(1): the Government Advertising Act applies to government office but would
not apply to politicians acting outside that office. Government MPPs are still allowed to
advertise outside the scope of the stature. See also: Ontario Ministry of Government
Services, News Release, "McGuinty government bans partisan advertising'' (6 December
2004), online: MGS .
Supra note 27 at para. 18.

definition of election expenses that would capture "all spending that directly or
indirectly promotes or opposes a candidate or political party's policies". 40
Manitoba already has statutory provisions that forbid government advertising.
These provisions can also help shape the contours of a new regime. Section
56(1) of the Elections Finances Act prohibits all government advertising during
an election period, with the exception of publications that are required: by law,
for employment contracts or applications, or are in continuation of existing
Crown corporation advertisements in support of ongoing Crown corporation
programs. This law could be extended to all periods of a government's life based
on the rationale discussed above: if a provision can alleviate unfairness
temporarily, it is sound policy to make that relief permanent.
Another section of Manitoba's Elections Finances Act is also helpfuL Section 1 of
the act defines election expenses as money spent, liabilities incurred and the
value of donations in kind accepted "... to support or oppose, directly or
indirectly, a candidate or registered political party in the election". Advertising
is explicitly included in this definition:U If these are the type of expenses that
are currently regulated in the name of electoral equality, it is somewhat puzzling
that they would not continue to be regulated throughout non...election periods
as welL
A ban on publicly funded election advertising based on a fusion of Ontario's law
and an extension of existing Manitoba laws on government advertising and
election spending would provide the missing piece in an otherwise
comprehensive political communications regulatory scheme.
C. A Publicly Funded Communications Regime
The problem with the current incumbent communications advantage is that it
prohibits challengers from engaging in effective dialogue with voters. Instead of
eliminating publicly funded government partisan advertising, electoral reform
could move in the opposite direction by funding advertising from incumbents
and challengers alike. 42 A public funding regime is currently in place at the
federal level. 43 This system, combined with elements of the "voucher" public
funding system proposed by two American professors, could be used to "level
up" Manitoba political challengers during non...election time. Challengers, along
4 ° Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral
Democracy, val. 1 (Toronto: Dundurn Press, 1991) at 341 (Chair: Pierre Lortie}.
41
Ibid.ats.l(c).
42
A broad publicly funded regime would be considered a "level up" program, while a total ban
on publicly funded partisan advertising would be a "level down'' program. See Hasen, supra
note 26.
43
Section 435.01 of the Canada Elections Act, supra note 16, provides political parties with
funding based on votes received in the previous general federal election.

34 Underneath the Golden Boy
with incumbents, could be provided with funds to spend on communication
throughout the duration of the government's life. This would allow all parties to
expend an equal amount of money on promotion, thus addressing the
imbalance the current spending regime has left in place.
I. Quarterly Allowances-the Federal Funding Regime
Registered federal political parties are entitled to quarterly public funding as a
result of changes to the Canada Elections Act that took effect in 2004. 44 Parties
are now eligible for funding based on their support in the previous general
federal election. To be eligible, a party must secure either at least two per cent
of the valid votes cast in the election or at least five per cent of the valid votes
cast in the electoral districts in which it endorsed a candidateY The allowance
is calculated based on a formula that, subject to inflation, pays out $0.4375 per
vote received. 46 While the regime is still in its infancy, it has already been
credited as a major accomplishment in electoral reform that has given a new
voice to non,traditional sources. 47 In that sense, the funding regime has helped
to address an imbalance between traditional and nontraditional political parties.
Applied in Manitoba--where no similar regime currently exists-it could
address the analogous incumbent-challenger communications imbalance. It
should be noted this federal funding regime operates along with other public
funding initiatives like free broadcast time for parties during federal elections
and expense reimbursement. 48
2. The Voucher System
Ackerman and Richard Hasen have both proposed innovative public finance
reforms for the American federal political scene. Both systems operate as a
publicly directed voucher model. Ackerman's "Patriot, system gives each voter a
card with 10 "red.-white,and blue'' dollars to self distribute either directly to
political parties or to political brokers who can do the same on their behalf. 49
44 Bill C24, An Act to amend the Canada Elections Act and the Income Tax Act (Political
Financing), 2 00 Sess., 37th. Parl., 2003 (assented to 19 June 2003), S.C. 2003, c. 19.
45
CanadaElectionsAct, supra note 16ats. 435.01(1).
46
Ibid. at s. 435.01(2).
47
See "Chief Electoral Officer of Canada Announces First Quatter Allowances to Be Paid to
Registered Political Parties' Canadian Corporate Newswire (4 April 2007) (QL). The Green
Party, for example, received over $310 000 in federal funding for the first quarter of 2007.
However, the act's requirement that a party rrust receive a minimum number of votes
before funding is triggered has been challenged in Ontario: Longley v. Canada (Attorney
General), [2007] 0.]. 929 (Ont. CA). The case was recently argued before the Ontario
Court of Appeal after an applications judge :6und the act's funding provisions were
unconstitutional based on differential treatment of political parties.
48
See the Canada Elections Act, supra note 16 at ss. 345 and 435.
4 9 Supranote 19at218-19.

These Patriot dollars, under his proposal, will become the exclusive currency for
all election expenses, to the point where the use of conventional money would
be akin to illegally purchasing votes. 50 Hasen's voucher system, meanwhile,
would similarly supplant current federal campaign finance system. 51 Voters
would have the opportunity to contribute these vouchers to candidates or
interest groups, with an added financing twist that would see the value of larger
contributions reduced to encourage a wider spread of each voter's
contribution. 52 Like Ackerman, Hasen also recommends nearly exclusive use of
voucher funds in the campaign financing sphere. 53 These proposals are
aggressive methods geared toward the same objective: the promotion of an
egalitarian electoral funding system. 54
Manitoba's campaign finance legislation allows reimbursement for eligible
election expenses, 55 but this fails to provide challengers with any meaningful
resources to counter the visibility advantage enjoyed by the incumbent party.
Challengers remain subject to stringent election and non,election advertising
and spending limits, thus reimbursement is only a part of the overall solutionif
a party is barred from spending the amount of money required to fund a
comprehensive communications campaign, reimbursement of whatever
resources that party is allowed to extend becomes largely irrelevant. Simply put,
reimbursement of not enough is still not enough. A new public funding regime
independent of Manitoba's non,election advertising spending limit would allow
challengers to add a fresh perspective to the othetwise govemment dominated
communications sphere.
IV. LEVELING TilE FIELD-ADVANTAGES OF ADDRESSING TilE
IMBALANCE
Several policy reasons support a move to address the incumbent,challenger
communications imbalance.
50
Ibid.
51
Supra note 26 at 5.
Ibid. at 21. Hasen proposes reducing the value of each voter's donation to its square root. A
$100 donation-the entire value of the voucher-would thus be reduced to $10, whereas
six $16 donations would be reduced to $4 each.
53
Ibid. at 24-26. Volunteer time and media commentary would be excluded from regulation.
54
See Hasen, ibid. at 42; Ackerman, supra note 19 at 221.
55
Elections Finances Act 1 supra note 15 at s. 71.

36 Underneath the Golden Boy
A. The Benefit of More Voices
The most basic benefit relates to the core values of Canadian Charter of Rights
7
and Freedoms 56 expression rights addressed in R. v. Keegstra.5 In that case, the
Supreme Court of Canada laid out the three pillars of s. 2(b) of the Charter,
including the '\Jalue of fostering a vibrant and creative society through the
marketplace of ideas 11 58 • In other words, having more voices expressing more
viewpoints on a given issue is a good thing. Contrary to what some may argue, a
law limiting a political player's ability to monopolize the airwaves can
complement-not contradict-core expression values. The Supreme Court has
accepted that the infringement of one group's expression values is an acceptable
byproduct of the larger goal of leveling the overall electoral communications
field. 59 The same reasoning supports reform in the area of non election
communications.
If the voucher system was adopted, no incumbent methods of speech would be
eliminated. Instead, the challengers would be raised to the same resource level
incumbents enjoy. As Briffault notes, courts may view limits on speech
suspiciously when no alternative forms of communication are left open, but
"public funding promotes equality without limiting participation ... [it]
increases voter equality while providing new funds for campaign
communications."(i)
As a final note on constitutionality, Harper and Irwin Toy v. Quebec (Attorney
General) 61 are prime examples of the Supreme Court's hesitation to second..
guess Parliament when it draws a line in an attempt to set up a law that is
neither too narrow or overbroad. Reform to address the incumbent challenger
communications imbalance necessarily involves drawing a line between content
that is partisan and content that is neutrally informative. As long as Parliament
"has made a reasonable assessment as to where the line is most properly
drawn" 62 , the courts should afford such regulatory legislation a healthy dose of
deference.
56
The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter}. Section 2(b) of the Charter guarantees the universal right to "freedom of
thought, belief, opinion and expression, including freedom of the press and other media of
communication".
57
[1990] 3 S.C.R. 697.
ss Ibid. at 704.
59
Harper, supra note 13 at para. 62.
60
Supra note 2 at 578.
6 L [1989) 1 S.C.R. 927 at para. 74, where the court said: 'There is sufficient evidence to
warrant drawing a line ... and we would not presume to re-draw the line." See also Harper,
supra note 13 at para. 111.
62
Ibid.

B. Better Governance
Reform to address the incumbent,challenger communications imbalance,
especially a publicly funded voucher system, should lead to better governance.
Stripped of their traditional support base at the polls, incumbents will have to
work harder to gain the public's trust. AB Briffault notes,
reduces the role of large private donors and, thus, their potential for
over the decisions of elected officials. The more campaign funds come from
the public fisc, the less elected officials need to be sensitive to the views of large private
donors, and the more they can act on their view of what the public interest requires. 63
Vouchers, combined with the contribution limits that are already in place, can
work to get the government increasingly focused on the overall public good.
Individually controlled funding from all segments of society also forces the
government to consider a variety of interests, according to Hasen, and not just
in the context of vote,getting:
[T]he voucher system will provide the incentive to explore the emire market for
campaign contributions as well. Just as she does in the actual election, the politician
will have to purse contributions from the population at large and all the interest groups
that represent the voters. 64
C. Learning from the Past
The Gomery Report 65 into allegations of a federal sponsorship scandal
recommended several measures specifically related to government advertising:
• Management of all federal advertising should be moved to a more
neutral federal government location. This would avoid conflicts between
those manage advertising and the government itself. 66
• Ontario's model of a total prohibition on all partisan advertising
enforced by the auditor general's office should be adopted. This would
provide significant separation between partisan and administrative
government functions. 67
Other provincial governments, including Manitoba, should learn from the
sponsorship scandal and the commission's subsequent recommendations by
adopting the measures argued for in this paper.
63
Supra note 2 at 582-83.
64
Supra note 26 at 30.
65
Canada, Commission of Inquiry into the Sponsorship Program and Advertising Activities,
Restoring Accountability, vol. 1 (Ottawa: Public Works and Government Services Canada,
2006) (Commissioner: John H. Gomery).
66
Ibid. at 164.
61
Ibid. at 165: "[Ontario's] system appears to have added an extra level of independence that
is not present in the current federal system."

38 Underneath the Golden Boy
D. Increased Interest in Electoral Process
Canada's falling voter participation rates have been well.-documented. In the
last Manitoba general election, for example, only 56.75% of eligible voters cast
ballots, 68 up only slightly from the previous election, in which 54.17% cast
ballots. 69 Public participation in the electoral system through a voucher program
has the potential to provide dividends at the ballot box. Unfortunately, public
cynicism has sucked the excitement out of elections in Canada. Given the
skeptical view many have toward politics in general it is not surprising that
voter participation is flagging. 70 We can cut through the cynicism by offering
voters a fresh outlook on the political scene by creating a process where equality
is the touchstone.
V. CONCLUSION
Incumbent political parties have a massive advantage over their challengers.
Exclusive use of the public purse for partisan political advertising further upsets
the balance between these political players. Competitiveness is a crucial
component of good governance and thus any reform that operates to restore a
measure of fairness to the electoral process should be welcomed. Reform to
address the incumbent.-challenger communication imbalance offers the
potential for widespread benefits, ranging from basic fairness to increased
participation in the electoral process.
As the recent Manitoba general election has demonstrated, there is a pressing
need for reform in this area. 71 Canadian governments should either follow
Ontario's lead and ban publicly funded partisan government advertising, or
consider instituting a broad public funding regime that allows equal access to
this type of communication.
68
Elections Manitoba, "Official Election Results", online: Elections Manitoba
.
69
Elections Manitoba, "Official Results: 38th General Election", online: Elections Manitoba
.
70
See Henry Milner, 11 Fixing Canada's Unfixed Election Dates" (2005) 6:6 IRPP Policy
Matters 1 at 23, where the author argues that a reduction of cynicism toward politics can
help to increase turnout.
71
It should be noted this is hardly a recent development in either Manitoba or Canadian
politics in general. Manitoba's Filmon Progressive Conservative government spent $3.5
million on advertisements in its last year in office, 1997-98. See supra note 4.

Minimum Sitting Dates
BRYAN SCHWARTZ & ANDREW BUCK
I. INTRODUCTION
As they often do, Manitoba Liberal MLAs Kevin Lamoureux and Dr. Jon
Gerrard took their seats in the province's Legislature on 6 October 2006. There
were, however, two significant changes on that particular day. First, the two
MLAs were sitting in the building's rotunda, not the Legislative Assembly. That
move was forced by the second significant aspect of that day-the House was
not sitting. Mr. Lamoureux and Dr. Gerrard were staging a two man mock
question period to protest what they felt was the NDP government's refusal to
be held accountable in the House. The government, under constant opposition
scrutiny for its role in the collapse of the Crocus Investment Fund, had not
called the House into session for over three months at the time of the Liberal
stunt. 1
This particular demonstration was far from original. Mr. Lamoureux had staged
a similar protest two years earlier, but even that wasn't the first time the
rotunda played host to a "lock out" demonstration. In fact, current Manitoba
Premier Gary Doer sat in the same space and made the same arguments as an
opposition leader in 1999. At that time, Mr. Doer was protesting the Filmon
government's refusal to call the House into session during the inquiry into
allegations that his party had engaged in vote rigging in the 1995 Manitoba
General Election. 2 But now that the scenario was reversed, the optics of the
situation were not good. AB an editorial noted: "Mr. Lamoureux's complaint
looks particularly bad on Mr. Doer." 3
The Legislative Assembly-and question period in particular-is where the
government is held accountable. As a result, a government looking to escape
Martin Cash, "Liberal MLAs want to work"Winnipeg Free Press (7 October 2006) A11.
Ibid. The Monnin Inquiry, Report of the Commission of Inquiry into Allegations of The Elections
Act and The Elections Finances Act during the 1995 General Election (Winnipeg: Election
Inquiry Commission, 1999), eventually uncovered an unsophisticated vote rigging scheme
in the Interlake constituency in the election. The report was seen as a major factor in the
Tory government's subsequent defeat in 1999.
"Call them in," Editorial, Winnipeg Free Press (25 October 2004) AlO.

40 Underneath the Golden Boy
the scrutiny of opposition parties and the media benefits when the House is not
sitting. Good governance knows no partisan boundaries, yet Manitoba's current
rules on House sittings allow the government to manipulate the schedule to its
own benefit. When this happens, accountability evaporates and public policy
takes a back seat to self preservation. The federal government and several other
provinces have stepped in to solve this problem by amending their respective
House or Assembly rules to create scheduled house sittings. 4 By doing so, these
jurisdictions have also created a de facto minimum number of sitting dates. 5 It is
time Manitoba did the same.
II. THE PROBLEM: AN EMPTY HOUSE
A. Legislative Loophole
Rule 2(1) of the Rules, Orders and Forms of Proceedings of the Legislative
Assembly of Manitoba holds that the Legislative Assembly "may" meet at any
time: 6
(a) from the first Monday in February to Thursday of the second full week in June,
except during the week designated under The Public Schools Act as a spring break or
vacation; and
(b) from the first Monday after Labour Day to Thursday of the first full week of
December ...
Manitoba's rules governing sittings of the Legislative Assembly contain
permissive language, unlike the above mentioned federal and provincial rules.
Instead of being mandated to set in two or three seasonal sittings-as is the case
in the other jurisdictions-governments in Manitoba are free to sprinkle sitting
dates throughout the time frame allowed by the rules. Put simply, if the
government doesn't want the House to sit, the House won't sit. This is
alarming, considering the important role sittings of the House play in the
overall development of policy and accountability.
See, for example, Standing Orders of the House of Commons, S.O. 28; Rules and Procedures of
the Legislative Assembly of Saskatchewan, rule 3; Standing Orders of the Legislative Assembly of
Alberta, S.O. 3.1; Standing Orders of the Legislative Assembly of Ontario, S.O. 6; and Standing
Orders of the Legislative Assembly of British (])lumbia, S.O. 2. Each section sets out a time
frame during which the House must meet in two or three annual sessions.
Rules that require the House to sit during a scheduled period will create a minimum
number of sitting dates that can only be altered f the government chooses to vary the
calendar by adopting an specific order to that effect. See, for example, the federal
government's House calendar {Standing Orders of the House of Commons, S.O. 28(2)),
which "provides for about 135 sitting days and seven adjournment periods at set times
throughout the year": Robert Marleau & Camille Montpetit, House of Commons Procedure
and Practice, 2000 ed. (Ottawa: House of Commons, 2000) at 324.
Rules, Orders anA Forms of Proceedings of the Legislative Assembly of Manitoba are current as
of 2005 amendments.

B. Accountability is Lacking
Responsible government requires the Prime Minister and Cabinet to answer to
the House for their actions and use of the public purse. 7 As a result, the House
must-at the very least-be sitting before responsible government and the
confidence convention can prevail. The concept of a government deliberately
blocking a sitting in order to avoid the heat of a scandal is odious, yet it is not
unheard of in Canadian politics. The Manitoba NDP Pawley government, for
example, kept the House from sitting for nine months following the province's
French Language Crisis in the mid..1980s. 8 The next provincial government, the
Tories under the leadership of Gary Filmon, also kept the House from sitting
during the 1998 Monnin Inquiry. 9 Finally, the current Doer government has
been accused of practicing infrequent sitting as a means toward avoiding
accountability in the wake of the Crocus scandal. 10 All of these incidents point
to the importance of a set legislative schedule that removes the governmenes
ability to avoid the scrutiny of House sittings, and in particular question period.
41
Accountability puts the responsible" in responsible government-it is the
means to the end. As Thomas Axworthy has noted, "Accountability is about
responsibility, the responsibility to answer for your actions.'' 11 A Parliamentary
research paper on the topic described accountability as follows:
Simply put, the term accountability refers to the need, or more precisely, the obligation
of public institutions and office-holders to explain and jusdfy their actions.
Accountability in a democracy is party of the consensual, fiduciary contract between
government and the governed. In our parliamentary system this relationship is
embodies principally in the formal responsibility of Ministers of the Crown to the
elected House of Commons representing all of the people. 12
Marleau & Montpetit, supra note 5 at 36: An essential feature of parliamentary
government is that the Prime Minister and the Cabinet are responsible to, or must answer
to, the House of Commons as a body for their actions and must enjoy the support and the
confidence of a majority of the Members of that Chamber to remain in office."
Interview of Rick Mantey by Bryan Schwartz & Andrew Buck (26 July 2007) [Mantey].
Mr. Mantey, a former secretary of the legislative and regulatory review committee in
Manitoba, currently operates a consulting company that advises clients on government
relations, procedural development, legislative and regulatory development, and
international relations.
Cash, supra note 1.
10
Ibid.
ll
Thomas Axworthy, "Addressing the Accountability Deficit:: Why the Martin Minority
Government Must Pay More Attention to the Three A's" (2005) 26:1 Policy Options 9 at
10.
12
Brooke Jeffrey & Gerald Schmitz, Reforming the House of Commons: the Work of the Special
Committee on Standing Orders and Procedure Established in 1982 (Ottawa: Library of
Parliament, 1984) at 17.

42 Underneath the Golden Boy
It follows logically that the House needs to be sitting to create an atmosphere of
accountability: not only in the sense of passing laws, which is dependent on the
house sitting, but also during question period, where the opposition is able to
hold government accountable in a public setting. 13 Question period is often
beset by petty partisan bickering, but it remains a valuable exercise nonetheless:
In the house, the government is on the hot seat to account for its spending and how its
plan for the province's future is unfolding. Not every question is relevant and replies
often are not illuminating. But a daily question period gives taxpayers timely feedoock
on how well government is operating. Avoiding public accountability is a tactic of
governments too comfortable in power, or those nervous about their handling of the
day's issues. 14
The alternative to question period is "government by press release", 15 and that's
exactly what the electorate can expect when the House isn't sitting.
Manitoba's current unfixed legislative sitting schedule is hindering
accountability in the province, legislative process expert Rick Mantey agrees. 16
But, he adds, the discretionary nature of sittings in Manitoba also creates a
dearth of long term planning and vision. Legislators find themselves out of time
at the end of each session, and the only way to pass important laws is to ram
them through the House without any or with limited scrutiny. "We don't have
time for really solid debate", Mr. Mantey says, contrasting the situation in
Manitoba with that of the United Kingdom's House of Commons, where one
bill can receive up to 300 amendments during debate. 17 As another example,
Manitoba is the only province that does not approve its electoral boundaries
through the legislative process. Instead, the government simply adopts Elections
Manitoba reports on presentation to the House. 18
Alberta recently amended its Legislative Assembly rulebook to join the
Canadian jurisdictions that observe a set (and minimum) sitting schedule. At
that time, several MLAs addressed the reality of rushed legislation that the
province's old discretionary schedule necessitated. One MLA, quite
appropriately, compared the province's legislative process to her work in the
film industry:
13
See Mia Rabson, "Colleagues don't like MLA's move''Winnipeg Free Press (16 March 2004)
Bl.
"Call them in", supra note 3. See also Kevin Lamoureux, "King's jester" Winnipeg Free Press
(22 February 2007) Al3: "Question period is where the face#to face televised questions and
answers occur. It is where the media show up and thousands of Manitobans tune in. If you
avoid question period, you avoid accountability."
15
Ibid.
16
Mantey, supra note 8.
17
Ibid.
IS Ibid.

You got up and went to work on the site every day, and you got home at some stupid
hour, and you went to bed and got up six hours later and did it all over again. To me,
that's what sitting in this House felt like sometimes. You really wondered very late at
night whether you were in fact being very productive, trying to negotiate legislation in
the small hours of the night. 19
This situation is doubly problematic. Clearly, the quality of debate and scrutiny
suffers. More broadly, legislators become so focused on passing legislation that
they lose sight of the larger policy picture. If "hard cases make bad law", what of
late*night legislative sessions The role of the Legislature should extend beyond
simple law*making and into examination of policy and oversight of government
administration. But with the current discretionary sitting session, it's less about
planning and long,term goals and more about finding and filling potholes.
Parliamentarians have picked up on this shortsightedness. A recent report on
parliamentary reform authored by a committee of MPs noted that Parliament
"has lost its 'forum' quality", "lost its ability to scrutinize government activity"
and "no longer contributes meaningfully to policy debates". 20 Significantly,
these comments were made even though the federal government operates on
fixed legislative sessions. The report argues that reform in this area should focus
on:
[E]nsuring that Parliamentarians have an ability to (1) make the government speak,
usually through a minister (answerability); (2) push the government to provide
information on what it is doing, and create opportunities to debate the information
provided {reporting); and (3) draw out the pros and cons d government policies as
well as the alternatives (public debate on performance). 21
These proposals all point to increased accountability. Fixed sitting sessionsand
the assurance the government will be held to account that they provideare
a critical and necessary first step toward that accountability. It is
unfortunate that Manitoba's Legislative Assembly does not even meet this
preliminary requirement.
III. THE SOLUTION:CLOSING THE LOOPHOLE
A. Setting a Schedule
The end goal is improved accountability through guaranteed planned sittings of
the House. The road to that end destination is a pleasantly short one: all that is
necessary is the removal of one word from Manitoba's Rules, Orders and Forms
of Proceedings of the Legislative Assembly and the substitution of another word in
19
Alberta, Legislative Assembly, Hansard, No.3 (12 March 2007) at 75 (Laurie Blakeman).
2
° Carolyn Bennett et al., The Parliament we want: Parliamentarians' views on parliamentary
reform (Ottawa: Library of Parliament, 2003), online: Library of Parliament at 7.
21
lbid.

44 Underneath the Golden Boy
its place. As discussed above, rule 2(1) sets out the time frame for fall and
winter sessions of the House. Instead of mandating sittings during that period,
the section states that the House "may" meet during that time. Other
jurisdictions replace the word "may" with either "shall" or "must", meaning that
the government does not possess the ability to call the House into session as it
pleases. Manitoba should likewise adapt a fixed session schedule, and it can do
this by removing "may" and adding "shall" to rule 2(1) of its Rules, Orders and
Forms of Proceedings of the Legislative Assembly. Rule 2(2), which provides for
emergency and extraordinary sittings of the House, should be retained. This
would give the government the flexibility to step outside a set sitting schedule
where circumstances demand it.
Alternatively, the Legislative Assembly could follow the lead of provinces like
Saskatchewan and empower its committees to hold the government
accountable. Rule 119(2) of Saskatchewan's Rules and Procedures of the
Legislative Assembly delegates special powers to standing committees, and rule
125(1) allows the chair-as opposed to the government house leader, as is the
case in Manitoba-to call meetings. 22 In this framework, the committees may be
able to hold the government to account in a capacity similar to regular sittings
of the House at large. Manitoba's Legislative Assembly rules have recently been
amended to include intersessional standing committee meetings as part of the
total number of sitting days for the Legislature. 23 If these meetings are being
counted as sitting days-and if MLAs are being paid as such-a strong
argument could be made for empowering committees in a manner similar to
what Saskatchewan has done. 24
B. Paying Policy Dividends
There are several important benefits to be gained by the establishment of a set
sitting schedule and the minimum number of sitting days it would provide. The
Manitoba Legislature, hindered by the need to rush bills through at the end of
each session, has become a legislation processing machine. In these situations,
vision and planning fall victim to expediency.
A set schedule could help remedy this problem by providing certainty and a
minimum number of sitting dates. Manitoba's Rules, Orders and Forms of
Proceedings of the Legislative Assembly sets out guidelines for public input on
22
Legislative Assembly of Manitoba, Fact Sheet No. 5: How St:anding Committees Operate,
online: Legislative Assembly of Manitoba . ·
23
Manitoba, Legislative Assembly, Standing Committee on Rules of the House, Vol. LVI No. 2
(16 June 2005) at 10 (Patricia Chaychuk).
24
Mantey, supra note 8. Mr. Mantey believes standing committees can be used to hold the
government accountable if they are given powers like the ability to call deputy ministers
and meetings independently of the government.

legislation, 25 but these guidelines are rendered moot when the rush is on to ram
laws through the House. A set schedule would help eliminate this problem by
ensuring an orderly hearing schedule is preserved. All,party agreements such as
the 22 December 1995 Memorandum of Understanding that led to the
premature termination of debate on contentious Manitoba Telephone System
legislation to allow the bill to be passed by a set deadline 26 could also be
avoided.
Other benefits a set sitting schedule could provide include:
• An opportunity for frequent strategic review of important government
initiatives and Crown corporations;
• Regular meetings to discuss long,term policy planning;
• Additional time for oversight and analysis of government
administration.
C. Addressing the Critics
Legislation that would have provided a minimum number of sitting days has
been brought forward twice in the Manitoba Legislature in recent years. 27 The
NDP government refused to support both bills on several grounds. Interestingly,
one government member spoke against the bill on the grounds that the status
quo--uncertain as it is--allows MLAs to "plan summer vacations". 28
Supporting the current rule regime on the grounds of blatant self,interest is
shaky reasoning at best, but the member's argument ignores the reality that a
fixed legislative session would actually increase certainty. As an opposition
MLA noted, the existing certainty in the House stops at the line that divides
where government and opposition MLAs sit:
As it currently stands here in the province of Manitoba, we have a significant amount
of uncertainty because we do not know when we are going to be recalled to the
Chamber because as it stands at the present time, [the Speaker receives] indication of
the date to which [they} are going to call us back to this Chamber from the First
25
See, for example, rule 92(2), ''Hearing presentations".
26
11
28
See "Underneath the Golden Boy: MTS Debate., (2003) 30 Man. L.J. 43 for a full account
of the circumstances surrounding the passage of legislation to privatize the province's
telephone utility.
MLA Kevin Lamoureux brought forward identical private members' bills in two separate
sessions. See: Bill 209, The Legislative Assembly Amendment Act, 2 00 Sess., 38ch Leg.,
Manitoba, 2004 and Bill 201, The Legislative Assembly Amendment Act, Jd Sess., 38th Leg.,
Manitoba, 2004. Both bills did not pass first reading.
Manitoba, Legislative Assembly, Debates and Proceedings, VoL LVI No. 13A (9 December
2004) at 535 (Doug Martindale).

46 Underneath the Golden Boy
Minister. We cannot as individuals know what the Premier (Mr. Doer) is thinking, and
this spawns uncertainty. 29
Debate on the issue indicates that some MLAs seem to have an inaccurate
picture of the role of an elected representative. MLAs are elected to serve their
constituents. But this does not mean, as one government MLA put it, uworking
out in our constituencies ... is, quite frankly, where we belong". 30 Undoubtedly,
touching base and attending meetings in one's home community is an
important part of elected office. But what separates MLAs from non,elected
citizens is their ability to represent their constituents in the House, by voting on
bills, asking questions and generally holding the government to account.
Government MLAs have also complained that a minimum number of sitting
days places an unfair burden on rural representatives, who must travel further
from their homes to attend sittings of the House. These complaints are off the
mark, Mr. Mantey argues, for several reasons. First, every MLA is not mandated
to attend every sitting of the House. Second, technological advancements in
communication allow MLAs to be better connected with both their
constituents and the House at all times. Third, expecting 80 sitting days from
our elected officials is hardly an onerous demand. 31 Manitoba's elected officials
should be honest and admit that either they are not prepared to spend as much
time in the House as other elected representatives in Canada, 32 or that they are
not prepared to do so without a pay raise. The arguments thus far raised by the
government against adopting a fixed legislative session simply cannot justify
avoiding flXed legislative sessions.
29
Manitoba) Legislative Assembly, Debates and Proceedings) Vol. LVI No. 38A (28 April
2005) at 2006 (David Faurschou).
30
Manitoba) Legislative Assembly, Debates and Proceedings, VoL LVI No. 30A (14 April
2005) at 1325 (Tom Nevakshonoff).
Jl
Ibid. The proposed changes to legislative rules discussed in this paper would create roughly
85 annual sitting days, Mr. Mantey says.
32
The Manitoba Legislative Assembly sat an average of 66 days per year between 2000-05)
10 fewer than the average number of sitting days between 1995-99: Mia Rabson, «NDP
stalling over tough questions, opposition says" Winnipeg Free Press (26 February 2007) B3.
Compare this to averages from other jurisdictions: 113 (federal government), 81 (Ontario)
and 57 (B.C.). Sitting information compiled from: Parliament of Canada, Sitting Days of the
Provincial and Territorial Legislatures by Calendar Year, online: Parliament of Canada
; Parliament of Canada, Sitting Days of the House of Commons by Calendar Year,
online: Parliament of Canada .

LfLlllhiJii'V"''" 0"""'"'"6 .....,. .........""';;)
I I
IV. CONCLUSION
Canada's federal government has operated on a fixed sitting schedule since it
was recommended by the 1982 Special Committee on Standing Orders and
Procedure. 33 Other provinces have also moved to adopt a similar schedule.
Manitoba, however, remains stuck with a system that allows the government of
the day to avoid the scrutiny of the opposition, the media and the public. This
is bad for accountability, bad for policy and bad for governance. Alberta MLA
and Government House Leader Dave Hancock acknowledged as much when
he introduced rules that brought Alberta in line with other fixed session
jurisdictions:
The House leaders' agreement came together because, I believe, all members of the
House would like to see the House, and private members particularly, more engaged in
discussion, an opportunity to really make the Legislature the pinnacle of the
governance and legislative process in this province. To that effect, we wanted to look
at issues of the hours and the time that the House sits so that it was a place which had
good work/life balance where members could actually engage enthusiastically in debate
and in governance processes but could also go home and see their families from time to
time.34
As an editorial has noted, "An opposition member sitting outside the assembly's
doors, begging to be heard, is a sad sight." 35 It's also an unnecessary sight:
Manitoba's government should move to set legislative sessions and embrace the
opportunity for accountability they provide.
33
Parliament, Special Committee on Standing Orders and Procedure, "Third Report to the
House" inHouse of Commons Debates, No. 17 (5 November 1982) at 20449.
34
Supra note 19 at 74 (Dave Hancock).
35
"Call them in", supra note 3.

Employment Standards that
Work for Women
DEBRA PARKESt
PREFACE
I
n December 2005, I received an e mail inviting me to attend an ad hoc and
hurriedly convened meeting in Winnipeg of a small group of feminist
lawyers and community activists to discuss the possibility of making
submissions to the recently announced Manitoba Employment Standards
Review ("the Review.,). Our goal was to ensure that the rights and interests of
women would be an integral part of any decision to amend the Employment
Standards Code ("the Code,). 1 This was a tall order, given that the time frame
was tight and we were all busy over the December holiday season: the Review
was announced in a press release on 10 November 2005 2 and submissions were
due by 16 January 2006. In these circumstances, the brief that was ultimately
submitted on behalf of the Manitoba branch of the Women's Legal Education
·and Action Fund ("LEAF"), 3 the Manitoba Bar Association Equality Issues
Section, 4 and the Manitoba Association of Women and the Law ("MAWL") 5 is
a S.gnificant accomplishment and a testament to the profound commitment
Debra Parkes, Associate Professor, Faculty of Law, University of Manitoba.
Employment Standards Code, S.M. 1998, c. 29, C.C.S.M. c. E110. The Code has since been
amended by The Employment Standards Code Amendment Act, S.M. 2006, c. 26 (the
"amended Code"}.
Manitoba Government, News Release, "Province Calls for Input on Employment Standards
Review" (10 November 2005), online: Manitoba Government .
LEAF Manir:oba is a branch of a national voluntary sector non-profit organization, which
advances the equality of women and girls in Canada, through strategic litigation, law
reform, and education, based on the Canadian Charter of Right.s and Freedoms.
Members of the Equality Issues Section of the MBA examine equality issues within both
the legal system and the profession. This Section also plays a major role in advising the
CBA/MBA and government on issues affecting women and the law.
MAWL is a feminist, non-profit organization, an affiliate of the National Association of
Women and the Law Inc. whose goals are to promote the equal treatment of Canadian
women and men through research, lobbying and education.

50 Underneath the Golden Boy
demonstrated by members of that ad 1wc group, 6 and the organizations to which
they belong, to see that women's equality rights were represented in this
important forum. 7
What follows is a revised and abridged version of that brief. Since it was
submitted, electronic copies of all written submissions made to the Review were
posted on the website of the Department of Labour and Immigration 8 and the
Department developed a number of proposals to amend the Code. Those
proposals were considered by a joint Labour Management Review Committee
chaired by Michael Werier (who also chaired the Review) and various
recommendations were made. Legislation to amend the Code was passed in the
Legislature and came into force on 30 April 2007 and a new Employment
Standards Regulation 9 came into force on the same day. A substantial number of
changes advocated in our brief have been incorporated into the amended Code
and Regulation. 10 It was heartening to see, for example, that our
recommendations concerning the discriminatory exclusion of domestic workers
from Code protections were at least partially addressed in the amendments. This
matter was not included in the original Discussion Guide for the Review and we
understand that it was put on the legislative agenda due to our submissions.
While there is still some distance to go to achieve an employment standards
regime that truly works for Manitoba women, the province has taken some
significant steps in that direction.
l authored the original brief, with contributions from Shannon Carson, Myers Weinberg
LLP and Evelyn Braun, LEA.F Manitoba, and in collaboration with a working group that
also included Veronica L. Jackson, Lorna Turnbull (Associate Dean and Associate
Professor of Law, University of Manitoba), Dani Fraser (MAWL), and Sharon Scharfe
(MAWL). Shannon Carson's more detailed Charter analysis of the discriminatory impact of
excluding domestic workers and agricultural workers from the Code will be published
separately and Evelyn Braun's consideration of the gendered nature of partrtime work has
been published in her article, Evelyn Braun, "Adverse Impact Discrimination: Proving the
Prima Facie Case," {2005) 11 Rev. Const. Stud. 119 at 137-141 and 143-147.
We have since learned that other women's organizations such as the Provincial Council of
Women of Manitoba, the United Nations Platform for Action (UNPAC) Manitoba group,
and the Manitoba Women's Advisory Council, also made submissions concerning women's
equality to the Review.
Manitoba Labour and Immigration, Employment Standards Code Review, online: Manitoba
Labour and Immigration .
Man. Reg. 6/2007.
10
Where significant changes were made on the matters raised in our brief, we have
mentioned them in footnotes throughout this article.

I. lN1RODUCTION
We commend the Manitoba government on its decision to launch this Review
of the Manitoba Employment Standards Code. The Discussion Guide 11 alludes to
the fact that this Review is long awaited and, in fact, long overdue. Manitoba
lags far behind other Canadian jurisdictions in some key areas of worker
protection and basic entitlements. Section 62 of the Code is just one example of a
provision that is out of step with other jurisdictions and indeed with the
jurisprudence of the Supreme Court of Canada. 12 It contains a long list of
exceptions to the bare minimum requirement that an employer give one pay
period notice to terminate a person's employment. Notably, subsections (b) and
(c) permit an agreement between employer and employee or the "established
practice" of an employer to trump even that minimum notice requirement. 13
The lack of any graduated notice period in the Manitoba legislation is similarly
surprising and a source of hardship for low;income and low status non.-
unionized workers (cf., for example, the Ontario Employment Standards Act,
which provides for notice up to eight weeks depending on the length of
employment) . 14
The Discussion Guide describes the focus of this Review as related to two broad
themes:
• Reflecting the realities of the modem economy by increasing flexibility,
modernizing protection, coverage and compliance; and
• Reflecting the changing face of today's labour force and the demands of
today's families.
We strongly agree that the Code must be modernized so that it can function
effectively to provide basic protections and entitlements, particularly to
vulnerable workers (often non unionized and lacking in bargaining power). We
also agree that the face of the labour force has changed in recent decades.
Among other changes, women have joined the paid workforce in greater
numbers, yet they continue to do the vast majority of unpaid work (child care,
elder care, and other household work) and continue to predominate in lowwage,
part.-time, temporary and other precarious employment sectors. For these
reasons, and in light of the legal rights and fundamental interests at stake, we
urge the government to make the necessary changes to make the Code a
11
Government of Manitoba, Discussion Guide: Employment Standards for Modem Workplaces
and Modem Families (2005), online: Government of Manitoba .
12
See.Machtinger v. HO], [19921 1 .S.C.R..986 !Machtinger]. This provision has been repealed
as a result of the amendments.
13
These provisions have been repealed as a result of the amendments.
14
A graduated notice period is now provided ins. 61(2) of the amended Code.

52 Underneath the Golden Boy
meaningful and enforceable bill of rights for all Manitoba workers and their
families. We also urge caution that the desire for increased "flexibility" of the
labour force (which is often a euphemism for lower employment standards and
greater powers for employers 15 ) not be permitted to outweigh the vital interests
and rights at stake. Greater "flexibility" in employment relations often leaves
workers to fend for themselves in bargaining working conditions, a task that is
made nearly impossible for all but a few professional and high,income workers
for whom inequality of bargaining power is not as great as it is for most workers.
This Review must be expanded beyond the confines of the current Discussion
Guide if it is to produce meaningful results that will improve the plight of
Manitoba workers and their families. In addition to the issues raised in the
Discussion Guide, the following are just some key areas of inequality and
inadequate employment standards, some of which we have addressed in a
preliminary way in our submissions but others which require more time (and
research) than has been possible for this Review:
• The need for domestic workers to be fully included in the Code's
protections;
• The need for a broader definition of "worker" or "employee" that would
protect the growing number of "own,account" self,employed (often low,
income) workers who are currently considered "independent
contractors" and are thus excluded from even the minimal protections
of the Code; Hi
• The elimination of qualifying thresholds for maternity leave and
parental leave in light of the disadvantage imposed on women by those
provisionsi
• The overall need for equal pay and equal benefits for precarious work
(part,time, casual, temporary, contract, etc.);
• The need to increase the minimum wage to the level of a "living wage";
15
The recent experience in British Columbia is instructive. In the name of "flexibility"
numerous employment standards have been eliminated or weakened since 2002, to the
detriment of workers. See David Fairey, Eroding Worker Protections: British Columbia's New
'Flexible' Employment Standards (Vancouver: Canadian Centre for Policy Alternatives (BC
Office), 2005), online: Canadian Centre for Policy Alternatives (BC Office)
. See also, in the Ontario context, Elizabeth Mitchell, "The Employment
Standards Act, 2000: Ontario Opts for Efficiency over Rights" (2002) 10 C.L.E.L.J. 300.
16
See Judy Fudge, Eric Tucker & Leah Vosko, The Legal Concept of Employment: Marginalizing
Workers, Report for the Law Commission of Canada, 2002, online: Government of Canada
Despository Services Program at 105, recommending that "aU dimensions of labour regulation should be
extended to all workers, defined as persons economically dependent on the sale of their
capacity to work, unless there are compelling reasons for not doing so.''

• The need for employment equity legislation that applies to both the
public and private sectors;
• The need to extend the Pay Equity Act 17 to apply to the private sector;
and
• The need to recognize form over substance in the use of serial term
employment contracts that effectively amount to long.- term employment
rather than short.-term contract employment.
The incomplete nature of the Discussion Guide and the proposed scope of this
Review is linked to other concerns we have about this process, such as, for
example, the short time frame for submissions prescribed, the lack of resources
for research and to facilitate stakeholder input, and the apparent absence of any
commissioned research to provide the necessary factual context for the Review.
In this veinit is useful to contrast the Manitoba Review with the recently
completed Federal Labour Standards Review. 18 While it is acknowledged that
federal resources are likely greater than those enjoyed by Manitoba, the contrast
between the reviews is stark. The Federal Review included (in addition to
Commissioner Harry Arthurs) three expert advisors (with backgrounds in law,
business, and arbitration), four stakeholder advisors (two from labour and two
from business), and a staff of 10. Furthermore, no less than 38 academics from a
wide variety of disciplines were consulted and 23 independent research papers
were commissioned from those and other academics. We are not aware of any
independent research conducted in Manitoba in connection with this
Review. We are also concerned that the voices and interests of marginalized
and vulnerable workers will not be adequately addressed. The groups that
represent people in those categories are not..for.-profit, largely volunteer run
organizations like our own, which, absent targeted funding from the
government, do not have staff or resources to undertake research and make the
necessary recommendatio.ns to truly address their realities. Therefore, we ask
that the government commit to extending this Review and to resourcing it at a
level consistent with the importance of the issues raised. We stress that the
majority of Manitobans are governed by provincial employment standards
legislation as opposed to federal legislation.
In the submi5sions that follow, we first briefly discuss the purpose and role of
employment standards legislation as a "floor of rights" for workers (Part II). In
Part III, we locate this Review and its implications, particularly for women, in
the context of global and domestic labour market changes that have been
described as the "feminization of labour" and the increase of precarious or
17
S.M. 1985-86, c. 21, C.C.S.M. c. P13.
18
Harry W. Arthurs, Fairness at Work: Federal Labour Standards for the 21 51 Century (Ottawa:
Publication Services, 2007), online:

54 Underneath the Golden Boy
vulnerable workers. In Part IV, we move on to consider the legal context for
this Review, focusing on both domestic (the Charter, human rights law, and
employment law) and international (Canada's international human rights
commitments) law. Our submissions on the various matters raised in the
Discussion Guide are found in Part V, with a particular focus on women
workers and keeping in mind the relevant social and legal context discussed in
Parts III and IV. Finally, in Part VIwe indicate our ongoing interest in these
issues, as well as those not raised in the Discussion Guide, and call on the
Manitoba government to make good on its promise to workers represented by
the Review.
II.THE PuRPOSE AND ROLE OF EMPLOYMENT STANDARDS
LEGISLATION
From their inception, legislated employment standards have been aimed at
providing a statutory "floor of rights 11
below which no worker should be
permitted to falL 19 It is important that any proposed changes to the Employment
Standards Code be consistent with the spirit and principles of minimum
employment standards, which can be improved upon by workers with greater
bargaining power, particularly those represented by unions, but cannot be
contracted out of by workers. 20 The statutory floor of rights is required for a
number of reasons: 21
• The vast majority of employment relationships are characterized by a
profound inequality of bargaining power, belying the myth of the
common law model of "freedom of contract" and making workers
vulnerable to "agree" to work for low wages, for little or no benefits, or
in unsafe working conditions;
• Unionism has not succeeded in protecting the majority of workers in
Canada (union density declined through the 1980s and 1990s, falling
from 41.8% in 1984 to 32.2% in 2002 22 ) and even unionized workers
sometimes have trouble negotiating benefits much in excess of the
statutory minima; and
• The rights and entitlements under employment contracts are
unenforceable in practice by most workers due to the prohibitive cost
and delays associated with civil litigation.
19
Geoffrey England, Individual Employment Law {Toronto: Irwin, 2000) at 80, 84.
20
21
22
Machtinger, supra note 12.
England, supra note 19 at 80.
Andrew Jackson and Sylvain Schetagne, "Solidarity Forever -An Analysis of Changes in
Union Density" {2004) 4 Just Labour 53, at 62.

The Supreme Court of Canada has said of employment standards law: "[t]he
harm which the [Ontario Employment Standards] Act seeks to remedy is that
individual employees, and in particular non.-unionized employees, are often in
an unequal bargaining position in relation to their employers., 23 Iacobucci J.
went on to cite Professor Katherine Swinton, who has noted:
... the terms of the employment contract rarely result from an exercise of free
bargaining power in the way that the paradigm commercial exchange between two
traders does. Individual employees on the whole lack both the bargaining power and
the information necessary to achieve more favourable contract provisions than those
offered by the employer... 24
When left to negotiate their conditions of employment on the market, workers
lack the power to seek guarantees of safe working conditions, adequate income,
and fair termination and notice. Without legislated protections, workers who
seek to enforce their rights risk being fired or forced to quit. The Manitoba
government, along with other Canadian governments, has legislated in a
number of areas-including most recently to impose a province.-wide no..
smoking ban-in recognition of the reality that workers are entitled to
protection such as clean air at work, even though they could not negotiate such
terms on their own or even collectively, in some cases.
To perform its role as a meaningful floor of rights, employment standards
legislation must keep pace with changes in the labour market and in society
more generally, must comply with Canada's international and domestic human
rights commitments, and must be rigorously enforced. Each of these criteria will
be described before turning some of the specific areas of concern in the Code
and measuring the current law against those criteria.
III. SOCIAL AND ECONOMIC CONTEXT:VULNERABLE WORKERS
AND THE FEMINIZATION OF LABOUR
It is vital that any revisions to the Code be made with the impact of changing
labour market patterns in mind, and more particularly, with a view to redressing
rather than exacerbating the negative impact of some of those changes on
Manitoba's most vulnerable workers.
The increasing number of "vulnerable" or "precarious" workers in the new
economy is well...documented, 25 and is widely acknowledged to be linked to
23
Machtinge;, supra note 12 at para. 31.
24
Katherine Swinton, cited inMachtinger, ibid.
25
See generally Kerry Rittich, Vulnerability at Work: Legal and Policy Issues in the New
Economy, Report for the Law Commission of Canada, 2004, online: Government of Canada
Desposimry Services Program and sources cited therein.

56 Underneath the Golden Boy
dominant trends in the globalization of trade and the related push to deregulate
labour markets. 26 The predominance of women, people with disabilities,
Aboriginal people, new immigrants and poor people in low,wage, r:recarious,
and non...standard employment .e.,part...time, temporary, term, casual on,call
and low..income "own account" self-employed workers) is similarly wen...
documented. 27 Researchers have described the 41 feminization" of the Canadian
workforce, a concept which speaks at once to: (1) the steadily increasing
participation rate of women in the labour market since the 1970s; 28 (2) the
predominance of women in lower-wage, part... time and other precarious
employment sectors; 29 and (3) the (unacknowledged and unaccounted for) non..
market work done by women and its connection to women's predominance in
precarious employment sectors. As noted by Kerry Rittich,
It is not accidental that women form a large contingent of those in unregulated,
unprotected and vulnerable work: their disadvantaged status at work is often
connected to the presence of non-market obligations, the limits those obligations place
on labour market participation, and the failure to adequately reflect those obligations
in workplace rules and norms." 30
In the Law Commission of Canada's recent Discussion Paper, Is Work Working,
one of the key problems associated with the growth of non...standard work is the
lack of access to important statutory benefits such as employment standards
protection. 31 Our employment laws-including notably Manitoba's employment
standards regime-were designed decades ago with the standard worker in
mind: a permanent, full... time (usually male) worker who was assumed not to
have primary family responsibilities. They have not kept pace with changes in
the labour market and have failed to protect those most in need of their
protection.
26
See, e.g., Rittich, ibid.; Isabella Bakker, "Globalisation and Human Development in the
Rich Countries: Lessons from Labour Markets and Welfare States" in Human Development
Report: Globalization with a Human Face. Background Papers: 1999 (Oxford: United Nations
Development Programme/Oxford University Press, 1999) at 29; and Joanne Conaghan,
Richard Fischl & Michael Klare, eds., Labour Law in an Era of Globalization: Transformative
Practices and Possibilities (Oxford: Oxford University Press, 2002).
21
See, e.g., Andrew Jackson, Is Work Working for Women Canadian Labour Congress,
Research Paper #22 (2003), online: Canadian Labour Congress and Andrew Jackson, Is Work Working for Workers of Colour
Canadian Labour Congress, Research Paper #18 (2002), online: Canadian Labour
Congress .
28
Jackson, Is Work Working for Women, ibid. at 6.
29
Ibid. at 8-9.
30
Rittich, supra note 25 at 53.
31
Law Commission of Canada, Is Work Working Work Laws That Do a Better job. Discussion
Paper (Ottawa: Law Commission of Canada, 2004), online: Government of Canada
Depository Services Program .

To be clear, those most in need of the protection of employment standards
legislation are women, Aboriginal people, recent immigrants and people of
colour, J;eople with disabilities, low,wage workers, and non,standard workers
generally, as exemplified by the following facts: 32
• Almost one in three women (31.5%) compared to one in five men
(19.5%) are low,wage workers (meaning that they earned less than two,
thirds of the national median wage);
• The percentage of low,wage workers in Manitoba is higher than the
Canadian average (31.1% and 25.3% respectively) and in Manitoba,
more women than men work for low wages (36.5% and 25.8%
respectively);
• Women who work in the private sector are much less likely to be
unionized than men (one in seven for women and one in four for men);
• The average annual earnings of women represent 63.9% of the average
annual earnings of men;
• The median individual income for Aboriginal people in Manitoba is
substantially lower than that of non,Aboriginal Manitobans ($18 258 for
non,Aboriginal people; $8 029 for Status Indians; $10 620 for Non,
Status Indians; and $12 219 for Metis);
• The rate unemployment of Aboriginal people is twice the Canadian
average (and three times the Canadian average for those living on
reserve);
• More than 42% of Aboriginal women in Manitoba live in poverty;
• Women with disabilities are at a greater disadvantage in the labour
market than men with disabilities and women without disabilities (in
1998, just 28.1% of all women with disabilities were employed for the
whole year, compared to 64.8% for women without disabilities and
39.2% for men with disabilities);
• Women with disabilities aged 35-49 earn a median hourly wage of
$12.36, compared to $15.05 for women without disabilities and $16.07
for men with disabilities in the same age group;
• Two,thirds of adult women with disabilities live in poverty;
32
See Molly McCracken et Young Women Work: Community Economic Development to
Reduce Women's Poverty and Improve Income (Winnipeg: Prairie Women's Health Centre of
Excellence, 2005); Jackson, Is Work Working for Women, supra note 27; Andrew Jackson,
Is Work Working for Workers of, Colour, supra note 27; Province of Manitoba, Aboriginal
and Northern Affairs-Chapter 6: Labour & Income, online: Province of Manitoba
; UN Platform for Action Committee
(Manitoba), Women & the Economy: A Resource Book, Bk. 1 at 78; Leah Vasko, Temporary
Work: The Gendered Rise of a Precarious Employment Relationship (Toronto: University of
Toronto Press, 2000}.

58 Underneath the Golden Boy
• The rate of part time employment is much higher among women than
men (27.7% for women compared to 10.9% for men) and while part,
time work may be a choice for some, at least one in four women part.-
timers report that they would rather have full,time paid jobs (which
does not include women who work only part.- time due the unavailability
and/or the prohibitive cost of child care);
• In 2002, part.-time jobs held by women paid a median hourly wage of
$10, and a median weekly wage of $181.25;
• Part.-time jobs are approximately one,half as likely to provide benefits as
fuU,time jobs; and
• Relative to their participation in the labour market generally, women
are overrepresented among temporary workers, holding 57% of contract
employment, 31% of seasonal employment, 61.1% of casual employment
and 47.3% of employment obtained through agencies.
The relationship between women and part.-time employment is a phenomenon
that is evident in the facts cited above and it is of great significance to this
Review. 33 This reality is linked to the disproportionate share of unpaid labour
done by women in relation to men, leaving them fewer hours to devote to paid
employment. A recent study by Statistics Canada reveals that just under 70% of
part,time workers are women and over a quarter of all women in the labour
market do less than 30 hours of paid labour per week. 34 Factoring out retirees
and the 15-24 age bracket (the latter being a period when young women and
men often combine part.-time employment with attending school), the
predominance of women in part.-time work is even more striking. Among
workers age 25-54, women outnumber men by a ratio of four to one. 35 As
described by Statistics Canada,
There is a distinct division of labour between the sexes. [In 1998,] women spent an
average of 2.8 hours daily on paid work and 4.4 hours on unpaid work, whereas the
situation for men was the reverse: they spent 4.5 hours on paid work and 2.7 hours on
unpaid work. ...[D]espite the increased participation of women in the labour market,
women's share of unpaid work hours has remained quite stable since the early 1960s at
about two thirds of the totaL 36
33
Evelyn Braun, supra note 6 at 145-146.
34
Statistics Canada, Women in Canada 2000: a gender based statistical report (Ottawa: Minister
of Supply and Services Canada, 2000) at 103, 123.
35
Ibid. at 124. The percentage of employees working part time is approximately 4.5% for
men, compared with slightly over 22% for women.
36
Ibid. 97.

When asked about their decision to work part.-time, 32.5% of women in their
key child..rearing years (24-44 years) cited "caring for children", while only
2.2% of men in the same age group cited this reason. 37
The reality of this unequal hnden has been acknowledged by the Supreme
Court of Canada and in human rights law both domestically and
internationally. In Symes v. Canada, Iacobucci J., for the majority, noted that
Beth Symes had "overwhelmingly demonstrated how the issue of child care
negatively affects women in employment terms" and unequivocally
acknowledged that women disproportionately incur the social costs of child
care. 38 In a similar vein, the Canadian Human Rights Tribunal observed in
Brown v. M.N.R., Customs and Excise that "[m]ore often than not, we find the
natural nurturing demands upon the female parent place her invariably in the
position where she is required to strike this fine balance between family needs
and employment requirements." 39 The Tribunal placed a clear obligation on the
employer to facilitate and accommodate this balance. Finally, European law
recognizes that discrimination against part time employees can amount to
indirect discrimination against women..;o
The gendered nature of much part..time work has implications for a number of
the employment standards cited in the Discussion Guide. In Part V we will
highlight those areas and make recommendations consistent with gender
equality and Manitoba's legal obligations.
IV. LEGAL CONTEXT:EQUALITY, HUJviAN RIGHTS, AND
MEANINGFUL PROTECTIONS FOR WORKERS
A. Domestic Law: Constitutional and Human Rights Obligations
The Canadian Charter of Rights and Freedoms is the supreme law of Canada 41
and any laws and government (in)action must be consistent with the Charter,
including s. 15 of the Charter, which provides:
(1) Every individual is equal before and under the law and has the right to the equal
protection of the Law and equal benefit of the law without discrimination and, in
particular, without discrimination based on race) m.tional or ethnic origin, colour,
religion, sex, age or mental or physical disability.
(2) Subsection 1 does not preclude any law, program or activity that has as its object
the amelioration of conditions of disadvantaged individuals or groups including those
37
Ibid. at 125.
38
Symes v. Canada, [1993] 4 S.C.R. 695 at 762-765.
39
19 C.H.R.R. D/39.
40
Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002) at 108.
41
Canadian Charter of Rights and Freedoms, s. 52(1), Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

60 Underneath the Golden Boy
that are disadvantaged because of race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.
The concept of equality adopted by the Supreme Court of Canada is
unequivocally one of substantive equality. In contrast to simple formal equality
(or the idea that "likes should be treated alike''), a commitment to substantive
equality means recognizing that patterns of disadvantage and oppression exist in
society. Furthermore, it requires that law #makers and government officials take
the unequal position of individuals and groups in society into account in their
decisions and actions. Substantive equality requires careful examination of the
impact and effects of law in its surrounding social context to make sure that
laws and policies promote full participation in society by everyone, regardless of
personal characteristics or group membership. In addition, substantive equality
requires challenging common stereotypes about group characteristics that may
underlie law or government action as well as ensuring that important
differences in life experience, as viewed by the equality..seeker, are taken into
account. The Supreme Court of Canada has repeatedly affirmed its
commitment to a substantive equality approach, including in its unanimous
decision in Law v. Canada. 42
Principles of substantive equality and freedom from discrimination have been
incorporated into domestic human rights laws. The Manitoba Human Rights
Code is of significance to the employment context and to this Review, 43
particularly s. 14, which prohibits discrimination in employment and is broadly
defined. In the same vein as s. 15(2) of the Charter, s. 11 of the Human Rights
Code also recognizes the need for positive measures to make human rights and
freedom from discrimination a reality for disadvantaged groups, and it protects
measures taken by government and private employers aimed at ameliorating the
disadvantage experienced by groups such as women, religious, ethnic and racial
minorities, and people with disabilities.
B. Domestic Law: The Supreme Court on Employment Law
A number of decisions of the Supreme Court of Canada in recent decades have
emphasized the importance of employment to individuals and society, and the
corresponding imperative that the law ensure fair and just conditions of
employment and protect vulnerable workers. The statement of Dickson C.J. (as
he then was) in Reference Re Public Service Employee Relations Act (Alta.) 44 has
been quoted in numerous subsequent employment law decisions such as those
42
Lawv. Canada (MinisterofEmploymentandimmigration), [1999] 1 S.C.R. 497.
43
S.M. 1987-88, c. 45, C.C.S.M. c. H175.
44
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at 368
[Alberta Reference].

dealing with inequality of bargaining power between employees and employers, 45
compensation for bad faith dismissal by employers, 46 and the right of agricultural
workers to organize. 47 As stated by Dickson C.J.:
Work is one of the most fundamental aspects in a person's life, providing the individual
with a means of financial support and, as importantly, a contributory role in society. A
person's employment is an essential component of his or her sense of identity, self
worth and emotional well-being. 18
Of particular relevance to this Review is the Supreme Court of Canada decision
in Machtinger v. HOI Industries, 49 where the Court was called on to determine
the consequences of employees signing written employment contracts that
purported to provide for less than rhe minimum notice of termination provided
in the Ontario Employment Standards Act ("ESA"). In Machtinger, one employee
purported to agree to no notice at all; the other for two weeks. The Court gave a
robust interpretation to the section of the ESA, stating that any purported
waiver of an employment standard in the Act is null and void (Manitoba's Code
does not exclude such an explicit statement, although s. 4 provides that a
purported agreement to work for lower standards can not be used by an
employer as a defence to a proceeding or prosecution under the Code). Since
the term of the written employment contract was null and void, the employer in
Machtinger argued that the Court should substitute the minimum ESA notice
period (in this case, four weeks each) on the basis that the low/no notice
provisions in the contracts were evidence of the parties' intention to contract
for the minimum notice period possible. However, the Supreme Court
disagreed, holding that the employees were entitled to pay in lieu of reasonable
notice at common law (seven months and seven and one half months
respectively). An illegal and void agreement could not be used as evidence of
the parties' intentions. Furthermore, on policy grounds, Iacobucci J. stated that
the inequality of bargaining power between workers and employers, combined
with the fact that employees often do not know and cannot effectively enforce
their rights, means that employment standards legislation must be given a
robust and broad interpretation in favour of worker protection. He stated,
... an interpretation of the [Employment Standards} Act which encourages employers
to comply with the minimum requirements of the Act, and so extends its protections
to as many employees as possible, is to be favoured over one that does not. In this
regard, the fact thac many individual employees may be unaware of their statutory and
common law rights in the employment context is of fundamental importance.... If the
only sanction which employers potentially face for failure to comply with the minimum
45
Machtinger, supra note 12.
46
Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.
17
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016.
48
Alberta Reference, supra note 44 at 368.
49
Supra note 12.

62 Underneath the Golden Boy
notice periods prescribed in the Act is an order that they minimally comply with the
Act, employers will have little incentive to make contracts with their employees that
comply with the Act.sc
The Supreme Court has recognized that employees do not enjoy equal
bargaining power with their employers, that meaningful and enforceable
employment standards are necessary to protect workers, and that measures to
promote compliance by employers are also necessary.
C. International Law: Human Rights Obligations
Canada also has obligations under international human rights law, obligations
and commitments that are consistent with fundamental Canadian values of
fairness, equality, and social justice. Many of these obligations-including those
concerning employment rights and the fair treatment of workers-can only be
fulfilled by the provinces, in light of the division of powers in the Canadian
Constitution. The following are just some of Canada's international obligations
with which Manitoba's employment laws must comply, and which must guide
the instant Review:
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW): 51
Article 3
States Parties shall take in all fields, in particular the political, social, economic and
cultural fields, all appropriate measures, including legislation, to ensure the full
development and advancement of women, for the purpose of guaranteeing them the
exercise and enjoyment of human rights and fundamental freedoms on a basis of
equality with men.
Article 11
1. States Parties shall take all appropriate measures to eliminate discrimination against
women in the field of employment in order to ensure, in a basis of equality of men and
women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the application of the
same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right to promotion, job
security and all benefits and conditions of service and the right to receive vocational
training and retraining, including apprenticeships, advanced vocational training and
recurrent training;
(d) The right to equal remuneration, including benefits, and to equal treatment in
respect of work of equal value, as well as equality of treatment in the evaluation of the
quality of work;
50
Ibid. at 1003-1004.
51
18 December 1979, 1249 U.N.T.S. 13 (ratified by Canada 10 December 1981).

.c.mptoyment .)Umaaras mat worK. JOT women o.J
(e) The right to social security, particularly in cases of retirement, unemployment,
sickness, invalidity and old age and other incapacity w work, as well as the right to
paid leave;
(f) The right to protection of health and to safety in working conditions, including the
safeguarding of the function of reproduction.
2. In order to prevent discrimination against women on the grounds of marriage or
maternity and to ensure their effective right to work, States Parties shall take
appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of
pregnancy or of maternity leave and discrimination in dismissals on the basis of marital
status;
(b) To introduce maternity leave with pay or with comparable social benefits without
loss of former employment, seniority or social allowances;
(c) To encourage the provision of the necessary supporting social services to enable
parents to combine family obligations with work responsibilities and participation in
public life, in particular through promoting the establishment and development of a
network of childJcare facilities ...
Covenant on Economic, Social and Cultural Rights (CESCR): 52
Article 6
1. The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which he
freely chooses or accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full
realization of this right shall include technical and vocational guidance and training
programmes, policies and techniques to achieve steady economic, social and cultural
development and full and productive employment under conditions safeguarding
fundamental political and economic freedoms to the individual.
Article 7
The States Parties to the present Covenant recognize the right of a"eryone to the
enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of
any kind, in particular women being guaranteed conditions of work not inferior to
those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions
of the present Covenant;
(b) Safe and healthy working conditionsj
(c) Equal opportunity for everyone to be promoted in his employment to an
appropriate higher level, subject to no considerations other than those of seniority and
competence;
52
16 December 1966, 993 U.N.T.S. 3 (ratified by Canada 19 August 1976).

64 Underneath the Golden Boy
(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with
pay, as well as remuneration for public holidays
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an
adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions. The
States Parties will take appropriate steps to ensure the realization of this right,
recognizing to this effect the essential importance of international co-operation I:Bsed
on free consent.
Convention on the Rights of the Child (CRC): 53
Article32
1. States Parties recognize the right of the child to be protected from economic
exploitation and from performing any work that is likely to be hazardous or to interfere
with the child's education, or to be harmful to the child's health or physical, mental,
spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social and educational measures
to ensure the implementation of the present article. To this end, and having regard to
the relevant provisions of other international instruments, States Parties shall in
particular:
(a) Provide for a minimum age or minimum ages for admission to employment;
(b) Provide for appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other sanctions to ensure the effective
enforcement of the present article.
In Part V below, we consider the various issues raised in the Discussion Guide,
as well as some related issues, and urge action consistent with Canadian and
international law and the social and economic context of today's workers.
V. SUBMISSIONS RELATING TO MATIERS RAISED IN TIIE
DISCUSSION GUIDE
A. Hours of Work and Overtime
Any attempt to build more "flexibility" into hours of work and overtime must be
considered skeptically, with the purpose of minimum employment standards in
mind. Given the well,recognized inequality of bargaining power between
employers and employees. Manitoba should not make it easier for employers to
secure "averaging agreements, whereby employees may be required to work
more than eight hours per day or more than 40 hours per week, without
overtime pay, if their hours average out to no more than 40 hours per week over
a longer period of time.
53
20 November 1989, 1577 U.N.T.S. 3 (ratified by Canada 12 January 1992).

Averaging agreements are often sought in industries where women and low
wage, vulnerable workers predominate, such as the retail and service industries,
health care, home care, and group homes. If averaging agreements are to be
permitted at all, the previous legislation in British Columbia serves as a model:
employers should be required to secure the agreement of 65% of affected
workers, as well as the approval of the Employment Standards Director. The
role of the Director is to safeguard the interests of workers and, before
approving an averaging agreement, they should carefully consider a number of
factors such as whether the workers receive some other comparable benefit in
exchange for forgoing overtime wages, whether the employer has any current or
past contraventions of the legislation, and whether the agreement is consistent
with the health and safety of the employees. 54
With respect to salaried employees, including those that might be considered
managers, the current provisions of the Code, essentially as interpreted by the
Manitoba Labour Board in Michalowski v. Nygard,S 5 provide the necessary
protection to employees. Employees should be entitled to assume that a salaried
position entails that they will work normal full--time hours and, if more hours
are to be worked, that those hours will be compensated at the overtime rate (to
be calculated at an average hourly rate equal to their salary, rather than simply
at minimum wage). The Labour Board correctly interpreted "employer" strictly
so as not to include relatively low level managers such as Michalowski. If this
Review recommends that a definition of "manager" be included in the Code, we
submit that any such definition should be narrow and should only include
senior managers whose work is wholly supervisory and managerial in nature and
who do not spend any significant time doing the same basic tasks as their
"subordinates". Salaried and low or mid..level managerial employees are entitled
to the protections of the Code. 56
The situation of incentive..based workers also deserves the careful attention of
this Review. Incentive..based workers denote those whose compensation is
based on piece..work, a flat rate, or commission. The idea that most incentive..
based workers are essentially entrepreneurs is out...of..step with reality and with
54
Sections 12-15 of the amended Code authorize the Director of Employment Standards to
issue permits to employers for increased standard hours and averaghg agreements. Section
14(3) provides that the Director must consider circumstances similar to those found in the
B.C. legislation in deciding whether to issue a permit.
55
[2004] M.LB.D. No. 13.
56
Section 2(4) of the amended Code provides that the standard hours of work and overtime
provisions do not apply to ''an employee who performs management functions primarily" or
to ''an employee who has substantial control over his or her hours of work and whose
annual wage is at least two times the Manitoba industrial average wage, as defined by
regulation." In 2006, the Manitoba average industrial wage was $35 195.16. Therefore, this
exemption only applies to employees having an annual wage greater than $70 390.32.
These provisions seem to address the concerns outlined in this section of our brief.

66 Underneath the Golden Boy
changes in the labour market. 57 Women-and particularly women of colour and
recent immigrants-predominate in low-wage incentive,based work such as
that in the garment industry 58 and are vulnerable to exploitation and
inadequate compensation for their work.
Again, keeping in mind the purpose of employment standards legislation to
protect workers from exploitation and to redress inequality of bargaining power,
incentive,based workers must be guaranteed a fair and reasonable wage. The
current Manitoba practice of deeming all incentive,based workers to be paid at
the minimum wage for the purposes of calculating entitlements such as
overtime rates under the Code is unjust and must be changed. Manitoba should
adopt the Ontario approach, which calculates an incentive-based worker's
hourly wage as the amount earned in a given week divided by the number of
non,overtime hours worked in that week.5 9
A final related matter of inequality concerns the Code provisions and
regulations governing 11 call...in wages., The general rule, set out ins. 51, provides
that an employee who is called in to work must be paid for at least three hours
of work, even if they work less than that (unless the employee's regular hours
are less than three hours per day). However, s. 10 of the Minimum Wages and
Working Conditions Regulation 60 exempts employees who work in theatres,
hotels, restaurants, or rural areas, as well as all children, from the call,in wage
provision. The fact that children and workers in the service sector (hotel and
restaurant)-a sector in which women predominate 61 -are exempted from even
this most basic protection is an example of the Code's failure to comply with the
substantive equality rights of women and children guaranteed in the Charter
and under international human rights law. We call on this Review to
recommend the repeal of the exemptions from caU..in wages. 62
57
See generally Rittich, supra note 25.
58
United Nations Platform for Action Committee Manitoba, Women and the Economy:
Globalization and Clothes, online: United Nations Platform for Action Committee Manitoba
.
59
Section 18 of the Regulation provides a formula to calculate overtime wage rates for
employees receiving incentive pay in a manner similar to the Ontario model.
60
Man. Reg. 62/99, s. 10.
61
62
Jackson, Is Work Working for Women, supra note 27 at 16.
The exemptions from call-in wages have been repealed by the amendments. However, s. 51
of the amended Code allows employers to schedule workers for shifts of less than three
hours and to pay them for that short shift (for example, for one or two hours only). The
only protection is against being called in for a three hour or longer shift and then being paid
for less than three hours.

B. Exclusions from the Code
The Discussion Guide asks for submissions on the exclusion of agricultural
workers under the Employment Standards Code. Surprisingly, there is no request
for submissions on the exclusions facing domestic workers. Under the Domestic
Workers Regulation 63 and the Minimum Wages and Working Conditions
Regulation/' 4 the Minister of Labour was required to review the effectiveness of
both regulations before 1 January 2005 and, if advisable, recommend that the
regulations be amended or repealed. We ask the Minister to make public the
reviews and consultations required to be done, particularly as they pertain to
exclusions facing domestic workers and agricultural workers.
While the Discussion Guide does not request submissions on the exclusions of
domestic workers, we submit that this particular exemption should be
considered as well. 65 It is beyond dispute that both agricultural workers and
domestic workers are especially vulnerable groups of employees, and both have
a strong need for legislative protection in their working lives. As discussed
below, we submit that the current exclusion of both of these groups of workers
from the Code and relevant regulations violates s. 15 of the Charter and,
therefore, should be repealed immediately.
1. Domestic workers
The exclusion of domestic workers from employment standards legislation has a
long and sorry history in Canada, subjecting this group of vulnerable workers to
inhumane and unjust working conditions. 66 Paid domestic work is highly
gendered and racialized. In fact, 97% of domestic workers are women. 67 A
majority of domestic workers were born outside Canada, including many women
from the Philippines. 68 Many are foreign citizens working in Canadian homes on
63
Man. Reg. 60/99, s. 9.
Man. Reg. 62/99, s. 23.
65
We are pleased that this issue was subsequently placed on the legislative agenda, at least in
part due to our brief, and that the amendments have extended some further, minimal
protections to domestic workers in Manitoba. However, we remain concerned that further
efforts need to be made, particularly on the enforcement side, to ensure that domestic
workers' equality rights are protected.
66
For a history of the legislative exclusion of domestic workers in Ontario, see Judy Fudge,
"Little Victories and Big Defeats: The Rise and Fall of Collective Bargaining Rights for
Domestic Workers in Ontario" in Abigail B. Bakan & Daiva Stasiulis, eds., Not one of the
Family: Foreign Domestic Workers in Canada (Toronto: University ofToronto Press, 1997) at
122.
67
Audrey Macklin, "Foreign Domestic Worker: Surrogate Housewife or Mail Order
Servant" (1992) 37 McGill L.J. 681 at 684.
68
Louise Langevin & Marie-Claire Belleau, Trafficking in Women in Canada: A Critical
Analysis of the Legal Framework Governing Immigrant Live in Caregivers and Mail-Order Brides

68 Underneath the Golden Boy
a work permit through the Live in Caregiver Program, a federal government
immigration program 69 that offers foreign citizens the opportunity to apply to be
permanent residents of Canada after having completed two years of work as a
caregiver in an employer's home. The live..in requirement is mandatory,
meaning that domestic workers are often isolated and, in some cases, subjected
to sexual harassment and assault. 70
Section 2 of the Domestic Workers Regulation defines a "domestic worker" as "an
employee who is employed as a domestic worker in a private family home and is
paid by a member of the family; and employed for more than 24 hours per week
in the home." This group of workers is protected by some provisions of the Code
(although they are not entitled to be paid for any hours they work in excess of
12 per day 71 ). However, s. 4 of Minimum Wages and Working Conditions
Regulation states that a domestic worker who works less than 24 hours per week
for the same employer is exempt from Part 2 of the Code (minimum standards)
except for Division 9 (maternity and parental leave) and Division 14
(employment of children and adolescents). 72 This means that legislative
protection as basic as minimum wage, maximum hours of work, overtime pay,
vacation and holiday provisions, and termination of employment provisions do
not apply to domestic workers who work less than 24 hours per week for the
same employer. She is left to negotiate and enforce her own employment
contract without the protections of the Code.
Even those domestic workers who work more than 24 hours per week for one
employer are extremely vulnerable to exploitation and a failure to enforce their
rights. Miriam Elvir, a former domestic worker, a member ofL'Association pour
la Defense Des Droits du Personnel Domestique, and a nominee to the Quebec
Labour Standards Board, writes that "[u]npaid salaries, or lack of payment for
overtime, are the main problems home caregivers encounter." 73 For example, in
(Ottawa: Status of Women Canada, 2000), online: Status of Women Canada at 20.
69
The website for the Live-in Caregiver Program can be found at .
7 ° For example, in Guzman v. T, [1997] B.C.C.H.R.D. No. 1, a domestic worker was awarded
$6 500 in damages for a human rights complaint when her employers did nothing to stop
their teenage son from sexually harassing her.
71
Section 4 of the Domestic Workers Regulation provides that "a domestic worker who works
more than 11 hours in a day is deemed to work 12 hours in that day."
n The amended Code and Regulation have lowered to 12 the minimum number of hours a
domestic worker needs work to claim the protection of the minimum standards provisions
of the Code. However, the particularly vulnerabilities experienced by this group of workers
mean that further protections are required, as discussed in this section.
73
Miriam Elvir, 4 "The Work at Home is not Recognized': Organizing Domestic Workers in
Montreal" in Abigail B. Bakan and Daiva Stasiulis eds., Not One of the Family: Foreign
Domestic Workers in Canada (Toronto: University ofToronto Press, 1997) at 154.

a 1995 employment standards decision from British Columbia, a domestic
worker was awarded an astonishing $73 778 in lost wages and unpaid benefits. 74
A recent survey of British Columbia domestic workers, who are fully included in
employment standards legislation in that province, found that 80% were not
paid the statutory minimum wage and overtime rate. 75 This reality underscores
the need for legislative exclusions to be removed so that domestic workers can
at least have full and complete access t:> Employment Standards complaint
procedures. Meaningful enforcement of those rights is a further challenge that
must be met with adequate resources and training for Employment Standards
staff.
The vulnerabilities facing domestic workers make anything less than their
complete inclusion in the protections of the Employment Standards Code
unconstitutional. The exclusions violate the equality guarantee in s. 15 of the
Charter, whether one employs the analysis articulated by the Supreme Court of
Canada in lAw v. Canada 76 or a more holistic approach that we suggest is more
consistent with the substantive nature of equality rights. 77 The exclusions from
the Code treat domestic workers differently than other Manitoba workers,
denying them basic fundamental employment rights designed to address the
inequality of bargaining power between employers and workers. This differential
treatment is based on the enumerated grounds of sex and race, and often the
analogous ground of citizenship status, 78 as well as the intersection of these
grounds, in a manner that amounts to discrimination in a substantive sense.
Finally, it is difficult to imagine how the Manitoba government could meet its
burden of proving that the discriminatory exclusions are reasonable limits on
equality rights under s. 1 of the Charter. The government would have to
articulate a "pressing and substantiar' objective for the exclusion and establish
that it minimally impairs equality rights, 79 a difficult task in light of the fact that
74
Mustajiv.Tjin, [1995] B.C.]. No. 39 (B.C.S.C.).
15
Abigail B. Bakan & Daiva Stasiulisj "Negotiating the Citizenship Divide: Foreign Domestic
Worker Policy and Legal Jurisprudence" in Radha Jhappan, ed., Women's Legal Strategies in
Canada (Canada: University of Toronto Press, 2002) at 256.
16
Supra note 42.
77
For a discussion of the ways in which the "Law test" has brought about a major shift away
from true substantive equality analyses in recent jurisprudence by obscuring the meaning of
equality and creating unnecessary hurdles for s.15 equality claimants, see Fiona Sampson,
"LEAF and the Law Test for Discrimination: An Analysis of the Injury of Law and How to
Repair Itu (2004), online: LEAF .
78
Citizenship status was recognized as an analogous ground of discrimination protected by s.
15 in Law Society of British Columbia et al. v. Andrews et al., [1989] 1 S.C.R. 143.
19
R. v. Oakes, [19861 1 S.C.R. 103 at para. 69 and 70.

70 Underneath the Golden Boy
several Canadian jurisdictions such as British Columbia 80 and Ontario 81 have
fully included domestic workers in employment standards legislation, and even
provided enhanced protections to this group, 82 apparently without adverse
consequences.
In light of the serious equality issues at stake in excluding domestic workers
from the basic protections of the Code, all exclusions should be repealed. The
law also must be clear that domestic workers are entitled to be paid for all hours
of work performed. Furthermore, the Code should be amended to require
employers to provide a written contract to domestic workers setting out their
duties, hours of work, and rates of pay and to require employers to register
information about domestic workers with the Director of Employment
Standards to assist in monitoring compliance.
2. Agricultural workers
Agricultural workers are denied the basic protection of employment standards
law in Manitoba. 83 In Dunmore v. Ontario, 84 the Supreme Court of Canada has
recently recognized that this is a particularly vulnerable group of workers. In
Dunmore, the exclusion of agricultural workers from the Ontario Labour
Relations Act ("LRA") 85 was found to unjustifiably infringe the workers' s. 2(d)
Charter right to freedom of association. The majority of the Court, per
Bastarache J., did not go on to address the plaintiffs' s. 15 equality argument.
However, L'Heureux,Dube J., in her concurring opinion, would have found an
80
For information on British Columbia's standards for domestic workers, see Government of
B.C. Ministry of Labour and Citizens• Services, Information for Domestic Workers and
Employees, online: Government of B.C. Ministry of Labour and Citizens' Services
.
81
For Ontario's "fact sheet" on domestic workers, see Government of Ontario Ministry of
Labour, Domestic Workers, online: Government of Ontario Ministry of Labour
.
82
For example, both British Columbia and Ontario require that employers provide written
contracts to domestic workers which clearly set out their duties, hours of work and wages,
and charge for room and board, among other targeted protections. See, e.g., Employment
Standards Act, R.S.B.C. 1996, c. 113, s. 14. See also Employment Standards Regulation, B.C.
Reg. 396/1995, s. 13 which requires employers of domestic workers to register the employee
with the Director of Employment Standards.
83
Section 3 of the Minimum Wages md Working Conditions Regulation, Man. Reg. 62/99
(March 19, 1999) provides that the minimum standards in Part 2 of the Code, other than
Division 13 (equal wages) do not apply to an employee in agriculture, fishing, fur farming or
dairy farming, or the growing of horticultural or market garden products for sale. This
exclusion remains in the amended Code despite a proposal from the Department that some
coverage be extended to workers in industrial agriculture settings such as hog barn
operations.
84
Supra note 47.
85
S.O. 1995, c. 1, Sch. A.

unjustified breach of the agricultural workers' s. 15 rights. We submit that her
analysis of the discriminatory impact of excluding agricultural workers from
labour relations law (i.e., protections for forming trade unions, collective
bargaining, and related activities) is even more apt to highlight the
discriminatory effect of denying this group of vulnerable workers the protection
of employment standards law.
Agricultural workers are treated differently from other workers in a manner that
amounts to substantive discrimination, given their pre,existing group
disadvantage and the vital nature of the interests affected. Both the majority
opinion (on s. 2(d)) and the minority opinion (on s. 15) in Dunmore note the
degree to which agricultural workers as a group lack political power and
resources, often have low levels of education, income and limited employment
mobility. 86 As noted by Bastarache J., they generally have 'ho recourse to
protect their interests aside from the right to quit." 87 The key issue is whether
the differential treatment is based on an analogous ground of discrimination,
namely occupational status as an agricultural worker. While Charter
jurisprudence to date has suggested that occupational status is generally not an
analogous ground, L'Heureux,Dube J. makes a compelling case for why
occupational status as an agricultural worker meets the doctrinal standard
established in earlier cases. She states,
I believe it safe to conclude of agricultural workers what Wilson J. concluded of noncitizens
in Andrews v. Law Society of British Columbia ... namely that they ''are a group
lacking in political power and as such vulnerable to having their interests overlooked
and their rights to equal concern and respect violated. They are among 'those groups
in society to whose needs and wishes elected officials have no apparent interest in
attending."' 86
Occupational status as an agricultural worker also meets the test of
''constructive immutability" articulated by the Supreme Court in Corbiere v.
Canada (Minister of Indian and Northern Affairs). 89 Because of their low levels of
skill and education, their relative status, and their limited employment mobility,
agricultural workers can only change their occupational status at great cost, if at
all.
The key objective put forward in Dunmore for excluding agricultural workers
from the LRA was the protection of the "unique nature of agriculture," in
particular the family farm. As noted by L'Heureux Dube }.,
[T] he government is entitled to provide financial and other support to agricultural
operations. including family farms. What is not open for the government to do is to do
86
Dunmore, supra note 47 at para. 41 per Bastarache J. and 102 per L'Heureux-Dube J.
87
Ibid. at para. 41.
88
Ibid.at para. 168.
89
[1999] 2 S.C.R. 203.

72 Underneath the Golden Boy
so at the expense of the Charter rights of those who are employed in such activities, if
such a policy choice cannot be demonstrably justified. This they have failed to do. 90
She goes on to note the extent to which the "pastoral image" of the family farm
is inconsistent with the current reality of agribusiness and factory farming. 91 She
concludes that,
... we are being asked by the respondents, without being presented with credible
pressing and substantial reasons, to justify distinguishing workers who sort and pack
chicken eggs in a factory,fike environment from workers who pack and sort Easter eggs
in a factory,like environment." 92
Her conclusion that the wholesale exclusion of agricultural workers could not
be justified is even more apt in the context of denying this group of workers very
basic level of protection, such as governing minimum wages and hours of work.
Manitoba has a broader exclusion of agricultural workers, and excludes them
from more minimum standards than other jurisdictions. However, merely
bringing Manitoba's exclusions in line with other jurisdictions does not satisfy
this government's obligations under the Charter, as a substantive equality
analysis indicates that other jurisdictions are in violation of the Charter as well.
Agricultural workers should be fully included in Part 2 of the Code. The needs of
industry can be met in a way that complies with the Charter by allowing specific
employers on a case by·case basis the ability to apply for variances where
compelling circumstances exist and minimal impairment of the rights can be
established.
C. Promoting Compliance
Geoffrey England, a leading expert on employment law in Canada, describes the
sorry state of enforcement of employment standards legislation in virtually every
Canadian jurisdiction, including Manitoba:
The most impressive code of substantive legal rights is only as good as the machinery
enforcing it. Regrettably, securing compliance with employment standards acts has
proven extremely difficult, especially for "atypical" workers, such as part-timers,
casuals, and homeworkers. Since a major purpose of employment standards acts is to
provide workers with a practical means of enforcing their employment rights--civil
litigation to enforce the employment contract being beyond the means of most
workers--this is a most serious failure. 93
This is one area in which the lack of commissioned research associated with this
Review is striking and problematic. There appears to be no information in the
public domain about compliance rates, frequency and scope of investigations, or
90
Dunmore, supra note 47 at para. 182.
91
Ibid. at para. 194.
92
Ibid. at para. 197.
93
England, supra note 19 at 84-85.

other important matters relating to enforcement and compliance in Manitoba.
However, we do know that in the federal sector, compliance with employment
standards legislation was found to be only 25%, 94 and it is safe to assume that
the situation is likely as bad or worse in Manitoba in light of the relatively weak
enforcement and compliance mechanisms relative to other jurisdictions. The
Discussion Guide candidly admits that "there are no significant deterrents to
violating the legislation."
It is trite to say that rights without remedies are meaningless, yet the sad reality
is that for many Manitoba workers, the current Employment Standards Code is
not worth the paper on which it is written. The following are just some of the
measures that should be adopted to promote compliance: 95
• The immediate infusion of more resources to hire inspectors and other
staff to respond promptly to complaints and to do compliance
inspections, audits and spot checks of workplaces;
• The immediate infusion of resources to fund community based advocacy
groups to assist employees with complaints;
• Provisions requiring the mandatory posting of a plain language version
of key employment standards provisions in all workplaces;
• Provisions for comprehensive audits of employers that are the subject of
repeated complaints;
• Provisions for detailed compliance orders to be issued without delay
after inspections;
• Provisions requiring targeted inspections of identified "high risk" sectors
where vulnerable workers are predominant;
• Provisions for complaining employees to remain anonymous;
• Provisions for strong protection against reprisals for employees;
• In addition to the current provisions for payment of monies owed to
employees, provisions for escalating fines (made payable through
issuance of an administrative ticket) to reflect the seriousness of the
violation(s) and punish repeat violators; and
94
Human Resources Development Canada, Evaluation of Federal Labour Standards (Phase I)
Final Report (1997) at 41, cited in Workers Action Centre Employment Scandards Work
Group, Modernizing Part III of the Canada Labour Code: Submissions to the Federal Labour
Standards Review (2005), online: Government of Canada Federal Labour Standards Review
at 6.
95
For these and other recommendations, see Workers Action Centre Employment Standards
Work Group, ibid. at 8-18 and Income Security Advocacy Group, Submission to the Federal
Labour Standards Review Commission (2005) online: Government of Canada Federal Labour
Standards Review at 8. All written
submissions to the FLSR are available at .

74 Underneath the Golden Boy
• Provisions for prosecutions to take place where collection strategies fail
(e.g., fail to recover unpaid wages for employees).
In short, the investigation, enforcement and compliance provisions of the Code
require a substantial overhaul. Along with a number of proactive measures (e.g.,
requiring that standards be posted in workplaces and conducting audits and
spot checks), there must be a cost for breaking these laws. Manitoba should
look to Ontario as an example of a jurisdiction that is beginning to take
violations-and therefore the rights of workers-seriously. Recognizing that the
Ontario Employment Standards Act already contains significant penalties and
other enforcement measures currently lacking in the Manitoba Code, in 2004,
the Ontario Ministry of Labour announced the initiation of 226 new
prosecutions. (There had been only 18 in the previous four years!) A perusal of
recent convictions and penalties under the Ontario Act reveals that most are
still in the $300-$400 range. However, there are some very significant fines,
including one for $17 7 500 in 2005. 96 Enforcement of this latter kind carries
with it some hope of creating rreaningful incentives for employers to comply
with the law. 97
D. Termination Notice
As the Inter-Jurisdictional Comparison accompanying the Discussion Guide
makes clear, Manitoba is vastly out-of step with other jurisdictions when it
comes to the minimum notice required to terminate an individual's
employment. The Code provisions are completely inadequate to protect the
most vulnerable workers (non-unionized, low-wage workers) who are not in a
position to seek enforcement of their common law right to pay in lieu of
reasonable notice. Unlike all other jurisdictions, under s. 61 of the Code,
Manitoba does not have any minimum graduated notice periods, instead
providing only one pay period's notice no matter how long the employment. At a
minimum, the Code should be amended to provide for similar graduated
notice provisions as those provided in Ontario, meaning that an employee be
96
Ontario Ministry of Labour, Employment Standards Convictions Archive (2005), online:
Ontario Ministry of Labour .
97
The amended Code (s. 138.1) and Regulation (s. 29) provide for new "administrative
penalties" in the amount of $500 to $1 000, the aim of which seems to facilitate a more
streamlined enforcement procedure, while still leaving the option of the more involved
process of mounting prosecutions for offences under the Code. There is no evidence on the
Employment Standards website of any increased enforcement capacity in the form of
budget or additional staff.

entitled to at least one week per year of service up to a maximum of eight
weeks. 98
The repeal of the long list of exclusions in s. 62 from the minimum notice
requirement for termination of employment by the employer is a further
necessary measure. Subsections (a), (b) and (c) are the most problematic. They
authorize the unilateral decision of an employer or "agreement between
employer and employee" to provide notice below the one pay,period Code
minimum. Again, such provisions are an invitation to exploit vulnerable
workers and fly in the face of the basic premise of employment standards
legislation that inequality of bargaining power is recognized and that unilateral
or bilateral "agreement" to work for less than the Code minima is not permitted.
In fact, in Machtinger, where the employees had signed agreements that their
employment could be terminated for no notice or two weeks notice respectively
(in both cases below the Ontario ESA minimum), the Supreme Court declared
the provisions null and void and enforced a meaningful remedy for workers who
had purported to agree to such substandard and illegal conditions. The common
law of reasonable notice was deemed to apply and the dismissed employees were
awarded. seven months and seven and one,half months pay in lieu of notice
respectively. In Machtinger, the court was dealing with a purported agreement
between employer and employee to a "no notice" provision, while the Manitoba
Code goes even further by allowing employers to unilaterally create a "no
notice" policy. The facts and approach taken in Machtinger demonstrate the
degree to which the approach in the Manitoba Code is out,of,step with other
jurisdictions, none of which permit such an evasion of even the most basic of
employment rights. More fundamentally, Machtinger shows Manitoba's Code is
inconsistent with the basic principles and functions of employment standards
legislation.
Finally, Manitoba also lags behind other jurisdictions and imposes unjustified
burdens on employees by requiring the same notice of termination from an
employee as is required from an employer. Eight Canadian jurisdictions
(including Ontario, B.C., Saskatchewan, and others) do not require any notice
from employees, recognizing that employees and employers are in fundamentally
different positions with respect to the impact of a terminating employment.
Manitoba should bring its law in line with these other jurisdictions. 99
98
Section 57 of the Ontario Employment Standards Act, 2000, S.O. 2000, c. 41 provides for
notice from one week to eight weeks, depending on the length of service. Manitoba•s
amended Code provides ins. 61(2) for graduated notice along similar lines, to a maximum
of eight weeks.
99
The amended Code continues to require employees to provide notice when they terminate
their employment. For employment of less than one year, the employee must give one week
notice and for employment lasting one year or longer, two weeks notice is required.

76 Underneath the Golden Boy
E. Statutory Holiday Pay for Part..Time Workers
As discussed in Part Ill, the predominance of women in part time employment
is related to the unequal share of unpaid work they do in the form of child care,
elder care, and other household work. The failure to recognize the unequal
burden of non..market work and the fact that part..time work is often not an
unfettered choice means that women do not enjoy the equal benefit or
protection of the law, contrary to s. 15 of the Charter.
To remedy this situation, the Employment Standards Code should be amended to
mandate that part..time workers are entitled to all the protections of the Code
(including holiday pay calculated at a rate of at least 5% of gross earnings, as in
Saskatchewan and Ontario)! 00 It is also necessary to ensure that part..time
workers are entitled to participate in all health, dental, insurance and other
group employment benefit plans, in the same manner as full..time workers, on a
proportionate basis to their time worked. Such measures would bring the
Manitoba government into compliance with the equality provisions of the
Charter. Furthermore, it would allow the NDP government to finally make good
on its promise in.its 1999 election platform that "Today's NDP will work with
employers to bring the benefits for part..time workers in line with those of full..
time workers.'' 101 Finally, it would be consistent with resolutions passed over the
years at NDP policy conventions, including at the 2005 convention, resolving
that "this convention urge the government to enact legislation providing for
pro..rated benefits for all workers." 102
F. Wage Deductions
The current law, which allows an employer to make deductions from a worker's
pay with that worker's consent, is an invitation to exploitation. As noted in the
Discussion Guide, this practice is common in the retail and services sectors in
which women and low..wage work predominate. In light of the inequality of
bargaining power experienced by employees in relation to employers, such an
agreement cannot be understood to be a free choice. The purpose of
employment standards legislation is to remedy exactly these kinds of situations:
where workers do not receive anything in exchange for their "agreement" to
have wages deducted, nor are they free to disagree and bargain br a different
arrangement. Manitoba should adopt the position in B.C., Ontario, P.E.I., and
the Yukon, where no deductions from wages are permissible. In any event, if
deductions are permitted in limited circumstances, the Code should provide
100
101
102
The amended Code provides for this change ins. 23 (2).
NDP publication, "Quick Facts: Today's Working Families,u prepared and distributed
during the 1999 election campaign.
Resolution 05..JE-46.

that such deductions can never be permitted to take an employee's earnings
below the level of minimum wage. 103
G. Employment of Children
In light of the purpose and function of employment standards legislation to
recognize and counteract the inequality of bargaining power between employees
and employers, as well as Canada's international commitments to protecting the
rights of children, it is crucial that the protections for children be robust and
consistent with children's rights. It is tempting, but inaccurate, to consider child
labour and the exploitation of young workers a problem largely confined to
developing countries. While we do not have data on the scope of child and
youth work in Manitoba, research indicates that the number of young people
under the age of 16 h wealthy countries such as the U.S. and Britain who
regularly work (i.e., participate in the labour market) is actually higher than that
of some developing countries such as India, Kenya and Thailand. 104
Article 32 of the International Convention on the Rights of the Child enshrines
the rights of children to legislated-and enforced-regulation of minimum
working age, hours and conditions of employment, safe and healthy work
environments, and the right not to have employment interfere with the right to
education. The current weak protections in ss. 83 and 84 of the Manitoba Code
leave young workers vulnerable to exploitation. In particular, the Code does not
provide parameters and limits on the employment of children beyond the
requirement of a permit to employ anyone under the age of 16 and a prohibition
on employing .children in a job that substantially involves machinery. 105 This
Review must take the rights of children seriously. Therefore, we submit that this
Review recommend the adoption of specific, enforced standards to protect
young, vulnerable workers, such as: 106
• A prohibition on employing young people under 16 in high risk
industries (such as, for example, forestry, automobile service stations,
window cleaning, and any other industries where there is more than a
minimal risk to the health and safety of children);
103
Section 19 of the Regulation provides that deductions from wages are not permitted,
except for those required by law (such as to garnish wages under court order) or where
there is a direct benefit to the employee. For greater certainty, deductions for such things as
uniforms, faulty work, damage, or cash shortages are prohibited.
104
Kristoffel Lieten & Ben White, "Children, Work and Education: Perspectives on Policy" in
Leiten & White, eds., Child Labour: Policy Options (Amsterdam: Askant, 2002) 6.
105
See supra note 1 at s. 83(4).
106
Specific standards such as those listed below are found in most other jurisdictions, such as
Ontario, Alberta, Nova Scotia, New Brunswick, P.E.I., Quebec, Saskatchewan, and others.

78 Underneath the Golden Boy
• Restrictions on the hours a child can work on school days and non,
school days; and
• A prohibition on late,night and early morning employment (e.g.,
between the hours of9:00 p.m. and 6:00 a.m.). 107
Furthermore, any attempt to make more "flexible 11
requirements for employing
children should be resisted. The recent experience in British Columbia serves as a
cautionary tale in this regard. In the name of "flexibility" and "efficiency,"
employment standards protections for children and youth were relaxed in
amendments to the B.C. Employment Standards Act in 2003. 100 For example, the
amendments included a move toward parental regulation and approval of
children's employment, rather than regulation and approval by the Employment
Standards Division (including, for example, parental evaluation of the health
and safety of the workplace). 109 A recent study 110 of young people aged 12-18
years who are employed in B.C. reveals some of the detrimental impact of these
relaxed standards, including the employment of children as young as 12, the
lack of adequate (or in many cases, any) review of workplace health and safety
conditions, the lack of supervision, and a host of other ESA violations. More
than one in five children and youth in the study reported having been injured
on the job, while nearly 30% reported feeling unsafe at work. m This group
includes a number of youth aged 12-14. Manitoba needs to guard against
proceeding down this road and must instead act to protect the rights of young
workers, as described in the recent B.C. report:
The formative years for children and youth aged 12 to 18 are vital to their education
and experience. Gaining work experience can be an important part of the growth and
development of children in this age group. But society owes it to its young to ensure
107
The amended Code (ss. 83-86) and Regulation (ss. 25-26) provide some new protections
for child workers in Manitoba. For example, a permit from the Director is required for any
employment of children under 16 years of age. Workers under that age also cannot work
more than 20 hours during a week of school or at all between 11:00 p.m. and 6:00a.m.
Sixteen and 17 -year,olds cannot work alone between 11:00 p.m. and 6:00 a.m. There are
also a variety of prohibitions against anyone under the age of 18 working in certain
dangerous industries, although the Director retains the power to issue permits for such
employment if he or she determines that it is not likely to adversely affect the safety, health
or well-being of the child.
108
Bill37, Skills Development and Labour Statutes Amendment Act, 4rh. Sess., 37rh. Leg., British
Columbia, 2002.
109
Ibid. at cl. 3.
110
John Irwin, Stephen McBride & Tanya Strubin, Child and Youth Employment Standards: The
Experience of Young Workers Under British Columbia's New Policy Regime (Vancouver:
Canadian Centre for Policy Alternatives (BC Office), 2005), online: Canadian Centre for
Policy Alternatives (BC Office) .
111
Ibid. at 23-25.

that their initial experiences with the working world are regulated according to
acceptable standards, and that these standards are followed.m
H. Unpaid Leaves and Work.-Life Balance
It is important that issues related to leaves and "work... life balance" be
considered in their social and economic context, namely that women continue
to do the vast majority of unpaid care work, including child care and the care of
family members who are elderly or have disabilities. In light of the
constitutional reality that the federal government has jurisdiction over income
replacement through the Employment Insurance Act ("EIA") 113 and that the
provinces have jurisdiction over employment standards, the issue of "unpaid
leaves" is really one of job protection for leaves required by employees.
As described earlier in this submission, the feminization of the Canadian
workforce has meant a double-bind for women: they are participating in the
paid labour market in greater numbers {although often in low-wage, part-time
and other precarious employment), while still performing a disproportionate
share of unpaid care work in the home. 114 Thus, until the division of unpaid
labour becomes more equal between men and women, the failure to provide job
protection for necessary leaves to care for family members will continue to
affect women more than men. As such, the way the law does or does not
accommodate the realities of (predominantly women's) unpaid care work is a
gender equality issue. Fulfilling the substantive equality guarantees enshrined
in the Charter-as well as international and domestic human rights lawrequires
meaningful and substantive recognition of the work of mothering,
parenting and caring for children and other family members, work that benefits
society as a whole. As recognized by Dickson C.J., writing for the unanimous
Supreme Court in Brooks v. Canada Safeway Ltd. 115 in the context of maternity
leave: ·
Combining paid work with motherhood and accommodating the child bearing needs of
working women are ever-increasing imperatives. That those who bear children and
benefit society as a whole thereby should not be economically or socially disadvantaged
seems to bespeak the obvious. Ic is only women who bear children; no man can become
pregnant. As I argued earlier, it is unfair to impose all the costs of pregnancy upon onehalf
of the population.
Unfortunately, Manitoba has not kept up with the trend in other Canadian
jurisdictions with regard to job protection for leaves md removing eligibility
thresholds for leaves.
112
Ibid. at 32.
113
S.C. 1996, c. 23.
114
See generally, Lorna Turnbull, Double Jeopardy: Motherwork and the Law (Toronto: Sumach
Press, 2001).
115
[1989]1 S.C.R. 1219 at 1243-1244.

80 Underneath the Golden Boy
Consistent with the equality guarantees in the Charter, Manitoba should extend
job protection to workers who take leaves to care for children or other family
members or for bereavement, recognizing that a disproportionate share of care
work is done by women, and that limitations on, or the non,existence of, job
protection for such leaves disproportionately affects women. The failure to
provide leaves in these areas is further evidence of the degree to which the Code
was designed with the standard male bread,winner earning a "family wage" in
mind and continues to ignore the realities of women workers and changing
labour market conditions. In addition to the new compassionate care provisions
(which only apply to caring for a terminally ill immediate family member), the
Manitoba Code should be amended to provide for at least 10 days leave to be
taken by employees as "emergency leaveH (as in Ontario), "family responsibility
leave" (as in B.C.) or "obligation leave" (as in Quebec). Such a leave should be
divisible and flexible, such that it may be taken by employees to care for ill
family members or otherwise to attend to other emergencies or urgent matters
involving the employees themselves, their family members, or ethers close to
them. 116
The reality is that taking unpaid leave from employment is difficult (and even
impossible) for many workers, particularly low,income workers and single
parents who simply cannot afford to do so. For this reason, we call on the
Manitoba government to lobby the federal government to expand the income
replacement provisions of the EIA (i.e., those that provide benefits for
maternity, parental, sick, and compassionate care leave) such that generous
leaves are provided and that income is replaced for all workers during leave
periods. We urge the Manitoba government to lobby the federal government to
make income replacement benefits under the EIA more accessible to workers,
particularly women and others who do part,time and temporary work.
With respect to all leaves (including maternity, parental, compassionate care,
and emergency/family responsibility), we submit that any eligibility threshold
will operate to the disadvantage of women because of their predominance in
part,time and temporary work and is, therefore, inconsistent with the
substantive equality guarantees in the Charter. Eligibility thresholds may, in
fact, function as an incentive to employers to put women in more vulnerable,
short,term jobs to avoid having to provide leaves to those women. The
Supreme Court has recently reaffirmed 117 that addressing the equality rights of
women, particularly needs related to maternity and parenting, is a societal
responsibility:
116
The amended Code provides two new unpaid leaves, one for family responsibilities or the
workers' own health (s. 59.3 permits up to three days per year) and the other for
bereavement (59.4 permits up t:o three days for the death of a family member).
117
Reference re Employment Insurance Act (Can.) ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R.
669.

A growing portion of the labour force is made up of women, and women have
particular needs that are of concern to society as a whole. An interruption of
employment due to maternity can no longer be regarded as a matter of individual
responsibility. 118
In fact, a growing number of provinces (B.C., Quebec, and New Brunswick)
have removed eligibility thresholds for maternity and parental leave and for
other leaves (e.g., Ontario has no eligibility threshold for family
medical/compassionate care leave) in recognition of their discriminatory
impact. It appears that even Manitoba has recognized that the trend is toward
lower, if any, eligibility thresholds, as evidenced by the fact that the new
compassionate care leave (which corresponds to the federal benefits for
compassionate care of a terminally ill family member) can be taken by any
employee who has worked for an employer during the previous 30 calendar
days. 119 We call upon the Manitoba government to uphold equality rights by
removing the eligibility threshold for maternity and parental leave (currently
seven months with the same employer) and other leaves.
Finally, the Code should be amended to require employers to give employees at
least five paid sick days per year. This basic protection is particularly important
for low income, vulnerable workers who often go to work when they are
extremely ill because they do not want to lose their job and cannot afford to be
sick. Bereavement leave of five paid days per year (not to be carried over if
unused) should also be provided so that all workers, including low;income
workers, are provided with some necessary time to grieve the loss of a family
member.
VI. CONCLUSION: MAKING GOOD ON THE PROMISE TO
MANITOBA WORKERS
In conclusion, we welcome this Review and the opportunity to make these
submissions. As set out in our submissions, we think i: is dear that there is
much to be done to bring Manitoba's employment standards legislation into
compliance with the substantive equality guarantees of the Charter, the trends
in other Canadian jurisdictions and at the Supreme Court, and international
human rights law. We urge this Review to make the necessary
recommendations to protect the fundamental rights and interests of Manitoba
workers and to remedy the current ineffectiveness of the Code in a variety of
118
Ibid. at para. 66.
119
Government of Manitoba, Employment Standards Fact Sheet: Compassionate Care Leave,
online: Government of Manitoba .

82 Underneath the Golden Boy
highlighted areas. We also request that, when it is made public, the Review
include a record of all oral and written submissions made to it. 120
We have expressed our concerns about the time frame for this Review and the
apparent lack of independent research and funding to facilitate the input of
those most affected by the current legislative gaps in these submissions. We
hope that the Review will be expanded to address some of the key gaps that we
have identified in our submissions, as well as those that may emerge through
further research. Finally, we wish to make it clear that members of our
organizations are willing and able to provide ongoing input and involvement in
the Review through further consultation, preparing and reviewing draft
legislation, and otherwise assisting to make the promise of the Review, namely
"employment standards for modern workplaces and modern families," a reality.
120
The written submissions have been posted on the Department website: http://www.gov.
mb.ca/labour/labmgt/emp_standards/submissions/.

Response to Consultation
Paper on Franchise Law
BRYAN SCHWARTz,t JOHN POZIOSt &
LEANDRO ZYLBERMANt
I. INTRODUCTION
T
he following is a response to the Manitoba Law Reform Commission's
Franchise Law Consultation Paper published in May, 2007. The "Paper,.
addresses the question of whether Manitoba needs franchise legislation
and provides a review of the state of franchise law in Canada, Australia, and the
United States. Finally, the Paper poses a series of questions with regard to what
should be done in Manitoba. 1
This response discusses the need for franchise law in Manitoba, drawing from
the experience of other provinces. Having done so, a discussion of the issues
raised in the Law Reform Commission's Paper will ensue.
II. Is FRANcmsE LAW NEEDED IN MANITOBA
A. The Need for Franchise Law in Manitoba
The Legislative Assembly of Manitoba has already had the opportunity of
discussing the question of whether franchise law is needed in the province. Jim
Maloway, MLA for Elmwood, introduced Bill 18, The Franchises Act, during the
Yd session of the 35th Legislature in 1992. The Bill followed the Alberta
Franchises Act 2 very closely, providing for the delivery by a franchisor to a
franchisee of a statement of material facts containing prescribed information,
and further providing that no person shall trade in a franchise in the Province
Bryan Schwartz} Asper Professor oflntemational Business and Trade Law, Faculty of Law,
University of Manitoba.
John Pozios, Director, Marcel A. Desautels Centre for Private Enterprise and the Law.
Leandro Zylberman, B.A., LL.B. (2008).
The Reform Commission's report may be found online at: .
R.S.A. 1980, c. F l7 (repealed).

84 Underneath the Golden Boy
of Manitoba until an application for registration in prescribed form, and a
prospectus in respect of the offer of the franchise, is filed with the Manitoba
Securities Commission and a receipt is issued for such prospectus. However, the
Bill did not receive second reading and did not pass into legislation. 3
For the purposes of this paper, Mr. Maloway's 1992 attempt is useful as it
produced a series of discussions in the Legislative Assembly dealing with the
need for franchise legislation in the province. Mr. Maloway introduced Bill18
on March 3) 1992, arguing that franchise legislation is needed in the province
because, up until then, Manitobans had lost large amounts of money buying
franchises, ranging from $5 000 to $100 000. Overall, he described the issue as a
'(growing problem." 4 Mr. Steve Ashton, MLA for Thompson, addressed the
Assembly in support of the Bill, stating that its introduction is not only
warranted due to the "hard times we are faced with" but also as a major public
service. The "hard times'' which he mentioned were in reference to the
activities bordering on fraud, at the mnd of franchisors, that franchisees have
had to face because of a lack of protection of their rights. 5 He further stated:
I ask the question why the government is not doing anything to prevent people from
being ripped off as they are on an almost daily l:ssis by those, Mr. Speaker, who are
misleading them about their abilities to deliver the kinds of promises we have seen in
terms offranchises. 6
Agreeing with Mr. Ashton and Mr. Maloway, Ms. Becky Barrett, MLA for
Wellington, delivered a comprehensive speech in favor of Bill 18. Ms. Barrett
emphasized the emergence of franchises over the past 20 to 30 years and their
popularity with many individuals and families in Manitoba who wish to invest in
franchises. Moreover, she pointed out a series of factors in &lpport of franchise
legislation. First, franchisees usually have virtually no experience with
franchising, so legislative protection is needed. Second, there are no laws in
Manitoba to guarantee the safety and security of franchisees' funds against fraud
and illegal actions on the part of the franchiser. Third, if Alberta, possessing a
government that is not known for its progressive legislation that supports and
Frank Zaid, Canadian Franchise Law, (Thomson,Carswell: Toronto, 2006), p. 2--1422.45.
Manitoba, Legislative Assembly, Debates and Proceeding!\ Vol. 21 (3 March 1992) (Han.
Denis Rocan), online: Legislative Assembly of Manitoba .
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. 56 (30 April 1992) (Hon.
Denis Rocan), online: Legislative Assembly of Manitoba .
Ibid.

protects individuals, already has an Act in place, it is evidence that Manitoba is
far behind. 7 She concluded her speech with the following remark:
I ... urge government members to join us in supporting Bill 18, which is a very fine,
necessary, important and certainly overdue piece of legislation. 8
Regardless of the fate endured by Bill 18, it is important to note that these three
MLAs recognized the need for franchise legislation in 1992 and, 15 years later,
nothing has been done to fix the problem. The situation in Manitoba has not
improved since 1992, as evidenced in the following cases.
In John Deere Ltd. v. G.A.E.L. Inc., 9 the manufacturer, John Deere Ltd.
("Deere"), improperly terminated a dealership agreement. Although the
Manitoba Court of Queen's Bench found that Deere had every right to
terminate the agreement, the court found that Deere had done so with undue
haste and unreasonably. Changing the locks on the dealership to prevent the
dealer from re entering the premises was not "reasonable termination." Had
franchise legislation been in place, G.A.E.L. could have had protection against
Deere under a good faith and fair dealing provision.
A recent example of a franchisor abusing his power to subdue a franchisee is
Halligan v. Liberty Tax Service Inc. 10 The franchisor in this case unilaterally
withdrew funding from the franchisee's store without notice and caused an
immediate drop in the franchisee's revenue after the franchisee refused to use a
particular name. In one instance, Liberty did not provide software that would
work. Following Mr. Halligan's complaints, a replacement was mailed to him,
even though his franchise location was in the same building as Liberty's head
office. The court further describes Liberty as harassing Mr. Halligan even in the
face of an injunction granted in 2001. The Manitoba Court of Queen's Bench
provides a more detailed description of Liberty's action in its 2006 judgment of
the same case. The Court described Liberty's conduct as malicious, high
handed, and reprehensible. This is following a depiction of Liberty forcing Mr.
Halligan out of business by withdrawing services during the tax season, setting
up competing stores and referring clients away from Mr. Halligan. 11
Both the Winnipeg Free Press and Winnipeg Sun reported on the most recent
franchise scandal in the province. Mr. Hisham Alard arrived to Winnipeg from
Syria in 2004 and was looking for business prospects. He found an
advertisement about a Pizza One franchise in the newspaper. The franchise cost
10
Manitoba, Legislative Assembly, Debates and Proceedings, VoL 82 (9 June 1992) (Hon.
Denis Rocan}, online: Legislative Assembly of Manitoba .
">(.J -
Ibid.
[1994] CarswellMan 323, 96 Man. R. (2d) 106.
[2003] MBQB 174, 36 B.L.R. (3d) 75, 176 Man. R. (2d) 57.
II
Halligan v. Liberty Tax Services Inc., [2006] 8 WWR 97, 202 Man. R. (2d) 268.

86 Underneath the Golden Boy
$50 000. Mr. Alard's store never opened and he received nothing in return for
his deposit. 12 Although this is the only Pizza One case that has been reported in
Manitoba, there are several examples in Ontario. 13
It is important to note in this context that a review of court decisions is unlikely
to provide an accurate representation of franchise disputes because some
franchise agreements require arbitration and do not reach the courts. 14
Nonetheless, the fact that some cases are still getting to court is somewhat
indicative of what Mr. Maloway alluded to in 1992. In other words, Manitoba is
facing a problem with franchisors abusing franchisees and legislation must be
introduced to address the situation.
B. The Ontario Example
When considering Manitoba's need for franchise legislation, there are two
primary reasons why Ontario's experience should be taken into account. First, it
is one of the three provinces in Canada to have franchise legislation, and it is
known as having the most franchisee friendly version. This is important in
Manitoba because, according to the Law Commission's report, it is a franchisee
rather than a franchisor province. 15 Second, when drafting model legislation,
the Uniform Law Conference of Canada followed Ontario's legislation as its
base. However, rather than looking at Ontario's Arthur Wishart Act (Franchise
Disclosure), 2000/ 6 the following will consider articles and Legislative Assembly
discussions to determine what factors influenced the province to introduce such
legislation.
Ontario first addressed the idea of introducing franchise legislation with the
Grange Report recommendations of 1971. 17 However, no act would come to
fruition until the much publicized Pizza Pizza case, 887574 Ontario Inc. v. Pizza
12
Alexandra Paul, "City Man Burned by Pizza Franchise Scam,, Winnipeg Free Press, (12
February 2007), online: Winnipeg Free Press Live ; Paul Turenne, "Avoid Being the Victim," Winnipeg
Sun (12 February 2007), online: Winnipeg SUN Media .
13
Some of the most recent Pizza One cases from Ontario include Ramjit v. 3 of 1 Pizza &
Wings (Canada) Inc., [2004] CarswellOnt 6402; Scott v. 3 for 1 Pizza & Wings (Canada)
Inc., [2003] CarswellOnt 3790; MAA Diners Inc. v. 3 for 1 Pizza and Wings (Canada) Inc.
(2003), 30 B.L.R. (3d) 279i Ali v. Triple 3 Holdings Inc., [2001] O.J. No. 5755.
14
Manitoba Law Reform Commission, "Consultation Paper on Franchise Legislation," online:
Current Projects at 15.
15
Ibid. at 47.
16
s.o. 2000, c. 3.
17
S.G.M. Grange, Report of the Minister's Committee on Referral Sales, Multi Level Sales and
Franchises, Ontario Ministry of Financial and Commercial Affairs (1971).

Pizza Ltd., 18 demonstrated that franchisees were in dire need of protection. A
new committee was formed and given the name Franchise Sector Working
Team ("FSWT''). The FSWT delivered its report in 1995. Although the report
was not conclusive on several issues, the members of the FSWT agreed that
disclosure from franchisors to potential franchisees before a franchise was
purchased was necessary. Three years after this report, the Ontario government
published a consultation paper on proposed franchise disclosure legislation. This
led to the introduction of Bill 93, which died on the order paper and was
subsequently reintroduced as Bill33. The latter passed its first reading in 1999
and received royal assent 8 June 2000. 19 This process sparked much legislative
debate in support of franchise legislation.
The need for franchise legislation was directly addressed during Ontario's
Legislative Assembly meeting of 17 May 2000, while Bill33 received its second
reading. 20 In describing the nature of the franchisor franchisee relationship,
Tony Martin, MPP for Sault Ste Marie, spoke of the fear that is generated when
franchisees deal with franchisors. This fear may be created when franchisees are
forced to sign contracts of adhesion, restricting their ability to manage their
business. Mr. Martin proceeded to tell a number of stories where franchisees
had been abused by franchisors.
The most shocking story Mr. Martin told was about Mary Carlucci, a grocery
store owner. In the 10 years as owner, she was able to turn her store into a very
successful business, a vast improvement from what it used to be. One day, she
received a phone call from the parent company to say that there was going to be
a marketing meeting at the local hotel. While she was gone at the supposed
marketing meeting, the parent company moved in and changed the locks, took
over the cash registers and told family members who were there to go home.
Ms. Carlucci no longer owns the store. 21
Claudette Boyer, MPP for Ottaw Venyer, speaking in support ofBill33, stated
that the Bill should only be seen as the first step in regulating franchises. She
further stated:
We really cannot deny the fact that legislation in this field is desperately needed. After
hearing testimonials of people who lost their life savings and went through many
18
(1995), 23 B.L.R. (2d) 59, [1995] O.J. No. 936 (Ont. Ct. Gen. Div.).
19
Edward N. Levitt, "Ontario Franchise Legislation/' online: Gowlings Resource Centre
.
20
Ontario, Legislative Assembly, Debates and Proceedings, No. 60A (17 May 2000) at 3087
(Hen. Gary Carr), online: Legislative Assembly of Ontario .
21
Ibid.

88 Underneath the Golden Boy
hardships, it became clear to other members of the committee and myself that
something had to be done. 22
Jean.-Marc Lalonde, MPP for Glengarry.-Prescott..Russell, also spoke in support
ofBill33. In doing so, he stated:
Bill 33 is an Act concerning fair dealings between franchisees and franchisors. The
only thing I can say is that this legislation is about five years too late for many
franchisees in Ontario. 23
The testimonials described in the Legislative Assembly of Ontario make it clear
that franchise legislation is necessary to prevent franchisors from abusing
franchisees. Protection was effected in Ontario by composing a franchises act
that focused on pre.-sale disclosure of material facts, the duty of good faith and
fair dealing and the freedom to associate with other franchisees.
Although Manitoba does not have to adopt every provision from the Arthur
Wishart Act (Franchise Disclosure), 2000, it is useful to have as an example of
current franchise legislation. Ontario spent over 30 years conducting research,
releasing reports, interviewing people and holding many House debates to
introduce such legislation. Manitoba can now look at Ontario's experience and
learn from it by not only taking advantage of the latter's research but also by
consider current issues with the franchise legislation and by drafting an
improved version.
C. Uniform Law Conference of Canada (ULCC)
The ULCC has done much work in relation to the introduction of franchise
legislation across Canada. John Sotos and Frank Zaid delivered a report
discussing franchise legislation at the ULCC's 2002 Annual Meeting. 24 The
report supports the introduction of such legislation on the grounds that a lack
of pre..sale disclosure means that franchisees are often entering into long..tenn
agreements and complex contracts without an adequate opportunity to receive
relevant background information. Furthermore, franchise legislation will help to
protect small business owners, hopefully prevent unnecessary disputes, and
provide consumer confidence in the stability of franchisee units. 25
Of particular concern for Manitoba, a "franchisee province," is the fact that,
according to the report, franchisees in many cases are unsophisticated business
investors who may be entering business for the first time. Their family savings or
22
Ibid.
23
Ibid.
24
Frank Zaid & John Sotos, "Status Report on National Franchise Law Project/' (Paper
Presented to the Uniform Law Conference of Canada Annual Meeting, August 2002)
online: ULCC, Proceedings of Annual Meetings .
25
Ibid. at 23.

assets are often at risk through the granting of personal guarantees or security to
the franchisor or lending institutions financing a transaction. 26
Although the ULCC advocates for uniformity across Canada, even if it is not
achieved, its message is clear: franchise legislation is needed. Regardless of the
differences that may exist between the Ontario, Prince Edward Island and
Alberta Acts and the ULLC Uniform Franchises Act [UFA], 27 the bottom line is
that the four advocate for franchise legislation as a means of protecting
franchisees from the abuse of franchisors and, consequently, generating more
confidence in the system. In addition to leveling the playing field between
franchisors and franchisees, a further consequence of uniform legislation may be
the eventual standardization of fair business practices.
D. Canadian Franchise Association (CFA)
The Canadian Franchise Association (CFA) represents over 400 franchise
companies and the professionals who support this way of doing business.
Members must abide by the CPA's Code of Ethics, 28 as well as the Association's
rules of disclosure. 29
The CFA's Disclosure Document Guide, revised in 2002, sets similar disclosure
requirements as those seen in Alberta and Ontario's franchise legislation. It
covers issues ranging from the disclosure of business experience of the
franchisor, franchise experience of the franchisor, information regarding other
existing franchisees, bankruptcy and insolvency, and existing litigation. The
CFA recommends the inclusion of a certificate of disclosure where: the
franchisor asserts that the information provided is in accordance with the
CPA's disclosure policy, warns the franchisee to examine the franchise
investment carefully and recommends the consultation of legal advisors prior to
executing the agreement. 30
The advantage the CFA presents to franchisees residing in Manitoba is that it
provides them with similar protection to other provinces where franchises are
statutorily regulated. In other words, franchisees in Manitoba are protected in a
similar way as a franchisee in Alberta, Ontario or Prince Edward Island, where
franchise legislation has been introduced enforcing disclosure.
26
Ibid. at 23-24.
27
Uniform Law Conference of Canada, Uniform Franchises Act [UFAL online: Selected
Uniform Statutes .
28
Canadian Franchise Association, "Code of Ethics", online: Canadian Franchise Association
.
29
Canadian Franchise Association, "Welcome to the Canadian Franchise Association,,
online: About Us .
3° Canadian Franchise Association, "CFA Disclosure Rules," online: Already in Franchising
< http:/lwww.cfa.ca/Page.aspxURL=CFADisclosureRules.html > .

90 Underneath the Golden Boy
The primary shortcoming of the CPA's Code of Ethics and Disclosure
Requirements is that it is only binding on members of the CFA. This means
that a franchisee will only be protected if the franchisor is a member of the
Association. Furthermore, whereas Ontario and Alberta have introduced
penalties for breach of their respective Acts, the CFA can only revoke a non..
compliant member's membership from the Association. This is hardly a
sufficient deterrent to an unscrupulous franchisor, who is likely not going to
register with the Association to begin with. 31 As stated in the Uniform Law
Conference of Canada's "Status Report on National Franchise Law Project," in
2002:
Voluntary codes by trade associations have inherent drawbacks in that they are not
subject to governmental or statutory delegation of authority. Therefore, the most
common remedy available to an industry association is expulsion of a non-compliant
member ... non members of the association are unaffected by the policies or codes of
conduct of the association in question. 32
Regardless of this drawback, it is important to note that the existence of the
CPA's Code of Ethics and Disclosure Requirements mearu that there are
already several franchisors who are abiding by disclosure rules and having to
provide disclosure documents to potential franchisees in Manitoba. These
include such large companies as A&W Food Services of Canada Inc., Orange
Julius of Canada Ltd., Boston Pizza International Inc., Canadian Tire
Corporation Limited, Pizza Hut, Play it Again Sports, Second Cup Ltd., and
Dairy Queen Canada, to name a few. 33
The CFA recognizes and supports the requirement of disclosure and ethical
behavior in franchise relationships. This is evident in the fact that the
Association requires all of its members to abide by its rules and regulations
where no such laws are already in existence. This is more proof that franchise
legislation is necessary in Manitoba.
E. Securities Regulation
Discussing the need for franchise legislation that mandates disclosure invariably
necessitates a contrast with securities regulation. This is primarily because in
several instances, franchise agreements can be analogous to securities.
Currently, the question of whether a franchise agreement is a security must be
addressed on a case.-by.-case basis, with the amount of control the franchisee has
31
Zaid & Sotos, supra note 24 at 25.
32
Ibid.
33
For a full list of CFA members, please refer to the CPA's official webpage under the
heading "Canadian Franchise Association Members/' online: Search Franchise
Opportunities .

over its investment as the determinative factor. 34 Much like franchise legislation
in Canada, securities legislation requires that a prospectus be issued. The
prospectus is a lengthy document that sets out details of the company, business
management, finances, existing securities, and the securities being qualified.
The prospectus must provide full, true and plain disclosure of all material facts.
Certain facts are mandatory, such as the background of the issuer, its officers
and directors. These requirements are vital for policy reasons. 35
Traditionally, securities regulation aimed to protect its investors by barring
unscrupulous, fraudulent or incompetent issuers from taking advantage of
naive, unsophisticated investors. Currently, objectives of securities regulation
include the protection of investors; ensuring that markets are fair, efficient and
transparent; and the reduction of systemic risk. Investor protection is achieved
in Canada, in part, through disclosure. Issuers, promoters and dealers must
disclose certain amounts and types of information, both at the time of issue and
on a continuous basis. Full, true and plain disclosure is a cornerstone of investor
protection, allowing investors to assess properly the risks of certain
investments. 36
After drawing a parallel between franchise legislation and securities regulation,
one quickly realizes that the same policy reasons for requiring disclosure apply
to franchise law. Forcing franchisors to disclose franchise information to
potential franchisees, as in securities, will be conducive to informed decision#
making. In other words, demanding disclosure will allow franchisees to more
properly assess their investment, thereby achieving the goal of franchise
legislation. Therefore, Manitoba should adopt franchise legislation dictating
adequate disclosure to make informed investment decisions.
F. Conclusion
Having considered the experience of franchisees in Manitoba and Ontario, it
has become clear that there is often a power imbalance between franchisors and
franchisees. Since many franchisees in Manitoba will be more inexperienced
than the franchisors they intend to franchise with, there needs to be an
instrument to level the playing field. This instrument is a franchises act. By
providing disclosure of information pertaining to the franchise, as well as
requiring that all parties act in good faith, a franchisee will receive some
comfort that all parties are required to employ fair dealing, hopefully evening
out the aforementioned power imbalance. In addition, because franchisees will
be better informed after receiving a disclosure document required by franchise
34
David Johnston & Kathleen D. Rockwell, Canadian Securities Regulation, 3'd ed. (Markham:
LexisNexis Canada, 2003) at 37-38.
35
Ibid. at 83--84.
36
Ibid. at 3-4.

92 Underneath the Golden Boy
legislation, the possibility of litigation between the parties arising out of a
misunderstanding should decrease. In other words, since a franchisor will be
obliged to educate franchisees with regard to the proposed investment by
providing a disclosure document, franchisees will be more aware of what to
expect from the franchisor, lessening the chances of a misunderstanding.
Franchise legislation does not always favor franchisees. Introducing an act
would reduce transaction costs for franchisors who will have developed, in
connection with their obligation to comply with the act, a standard disclosure
document for Manitoba. Having said that, it is important to remember that
even if franchisees are in great need of protection, a franchise act should not be
so onerous as to deter franchisors from entering the Province.
Overall, the introduction of franchise legislation in Manitoba is long overdue.
The Province is in the fortunate position of being able to consider the
experience of other provinces, such as Ontario, and of other entities, such as
the ULCC and the CFA, in order to draft the most comprehensive and effective
franchise legislation in the country. Although franchisees stand to gain the most
from such legislation, many franchisors would not even notice a change, either
because they are members of the CFA or because they have franchises in one of
the three regulated provinces and are already in compliance with other
franchise legislation. The need for franchise legislation in Manitoba is clear, and
the time to introduce it is now.
III. IF LEGISLATION IS DESIRABLE, WHAT ELEMENTS SHOULD BE
INCLUDED
A. Disclosure Elements
1. Scope of Disclosure of Material Facts
The question posed by the Manitoba Law Reform Commission under this
heading is whether the province of Manitoba should adopt the ULCC approach
to disclosure of "material facts" (setting out an extensive list of matters that
must be disclosed whether or not the information is material in a situation) or
the approach under current provincial regulations, which provides less detail. 37
The Uniform Franchises Act 38 enforces an obligation upon the franchisor to
disclose, inter alia, financial statements as prescribed, copies of all proposed
franchise agreements and other agreements relating to the franchise to be
signed by the prospective franchisee as well as "all material facts."
Consequently, aspers. 6(1), a franchisee may rescind the franchise agreement
37
38
Manitoba Law Reform Commission, supra note 14 at 49.
Uniform Law Conference of Canada, supra note 27.

no later than 60 days after receiving the disclosure document if it does not
contain "all material facts."
To understand the requirements set by the ULCC, it is imperative to
understand the meaning of the phrase "material facts." The Uniform Franchises
Act defines "material facts" as follows:
"Material facts 11
means any information, about the business, operations, capital or
control of the franchisor or franchisor's associate or about the franchise or the
franchise system that would reasonably be expected to have a significant effect on the
value or price of the franchise to be granted or the decision to acquire the franchise.
Complementing the disclosure requirement of "material facts" is an extensive
list of required information that must be disclosed found in the Disclosure
Document Regulations. 39 To say that the list is extensive is certainly an
understatement. The ULCC places a heavy burden on the franchisor to disclose
a long list of information pertaining to the franchise. As a result, the franchisee
will have a significant amount of information about the franchise they are
looking into acquiring.
Some of the disclosure requirements set out in the Regulations include
information about the franchisor, such as business background, the name of
every associate, the name under which the franchisor intends to do business,
the length of time the franchisor has offered the franchise to prospective
franchisees and the number of franchises granted in the five years immediately
before the date of the disclosure document. Furthermore, the franchisee must
be informed as to whether, during the 10 years immediately preceding the date
of the disclosure document, the franchisor, the franchisor's associate or a
director, general partner or officer of the franchisor has been convicted of fraud,
unfair or deceptive business practices or is in violation of a law that regulates
franchises or business, or if there is a charge pending against the person
involving such a matter, and the details of any such conviction or charge. 40
Other topics in the Regulations include required information about the
franchise, a schedule of current franchisees, a schedule of current businesses, a
schedule of franchise and business closure information and financial statements.
Without a doubt, requiring a franchisor to comply with such an extensive list of
requirements will lead to the production of a very large disclosure document.
In contrast to the ULCC, the three regulated Canadian provinces, Ontario,
Alberta and Prince Edward Island, place a less onerous disclosure obligation
upon the franchisor. This is because neither province has such an extensive list
of disclosure requirements. Let us begin by considering Ontario's legislation.
39
Uniform Law Conference of Canada, Disclosure Documents Regulation, online: Selected
Uniform Statutes .
40
Ibid. at s. 3(c).

94 Underneath the Golden Boy
Section 5(1) of the Arthur Wishart Act (Franchise Disclosure), 2000, requires a
franchisor to provide a prospective franchisee with a disclosure document and s.
5(4) sets its contents. According to the latter section, the disclosure document
shall contain "all material facts." Since the Ontario Act employs the same
definition of "material facts" as the ULCC, the primary difference between the
two is the disclosure required by the regulations of each. As a Eide note, since
Ontario and the ULCC have adopted the same definition of "material facts," it
would be prudent that Manitoba consider including it in its own legislation.
The Regulation Made Under the Arthur Wishart Act (Franchise Disclosure), 2000,
Part II, sets out a list of elements, divided into seven sections, that must be
included in a disclosure document. The Ontario Act and the ULCC's UFA are
very similar, with the latter requiring disclosure in greater detail. This is because
the ULCC's approach in drafting its UFA was to consider the Ontario
legislation as a working model, inserting changes and modifications considered
appropriate for both clarity, inclusionary and consistency purposes. 41 Therefore,
if Manitoba were to adopt the ULCC disclosure requirements, it would
implement a more detailed version than Ontario's.
A clear example of the difference in drafting between the two is the disclosure
requirement with regard to training. Whereas s. 6(5) of the Ontario regulations
requires "a description of any training or other assistance offered to the
franchisee by the franchisor or the franchisor's associate, including whether the
training is mandatory or optionat and if the training is mandatory, a statement
specifying who bears the cost of training," s. 4(1) (h) of the UFA adds that the
franchisor must also disclose where the training or other assistance will take
place. This is just one of many examples showing how the ULCC has drafted
more detailed legislation than Ontario while using the latter as a model. This is
an important point to consider.
Peter Macrae Dillon, a prolific author and head of Siskinds' Franchise,
Licensing and Distribution Tearn in London, Ontario, states, "Unfortunately,
the ULCC chose to uphold and reinforce the Ontario Act as the gold standard
of franchise legislation." 42 Mr. Dillon refers to the ULCC's choice as
"unfortunate" on the grounds that Ontario has the world's toughest disclosure
standard. What makes the Ontario Act, and consequently the UFA, so tough is
that it has a p1rely open,ended disclosure model. As a result, the failure of a
franchisor to include any fact that might be found to be material in the
41
42
Uniform Law Conference of Canada, Uniform Franchises Act Report - August 2004, online:
Proceedings of Annual Meetings, Report of the Uniform Franchise Act Working Group
at 1.
Peter Macrae Dillon, "Will Franchising Survive as a Business Model Under Canadian Laws
and Regulations" (Summer 2006) 26:1 Franchise Law journal 32 at 32.

franchisee's decision to purchase will result in unlimited liability for the
franchisor. 43
The franchisor must thus exercise utmost diligence when preparing disclosure
documents under the Ontario Act or, if adopted, the UFA. A franchisor must
determine what about the franchise and franchisor is material and disclose it. 44
However, taking into consideration that Bill 33, the Arthur Wishart Act
(Franchise Disclosure), 2000, was called "An Act to require fair dealing between
parties to franchise agreements, to ensure that franchisees have the right to
associate and impose disclosure obligations on franchisors," the onerous
character of the Ontario Act suddenly makes sense. If the purpose of the Act is
to provide franchisees with full disclosure so as to allow them to make a proper
decision, requiring such stringent disclosure is justified. As Edward N. Levitt
said:
For those looking for a franchise investment specifically, the disclosure requirements of
the Ontario Act will allow them to more easily shop for the right one. 45
If Manitoba chooses to adopt the ULCC standard, franchisors will be faced with
a new and more stringent standard than Ontario's. This is because not only
must "all material facts" be disclosed, but also because franchisors will be faced
with a more extensive list of requirements under the Regulations. Thus, if the
goal for introducing franchise legislation in Manitoba is to aid franchisees and
ensure that sufficient information is disclosed, allowing them to make informed
decisions when purchasing a franchise, the ULCC standard should be adopted.
However, if the province is concerned about placing a heavy burden on the
franchisor, the Ontario standard should be adopted.
There is yet another alternative to the level of disclosure that may be required
from franchisors. Both the Alberta and P.E.I. Regulations 46 provide that a
disclosure document complies with the Act if it is "substantially complete." The
Alberta Court of Queen's Bench interpreted the meaning of "substantially
complete" in Emerald Developments Ltd. v. 768158 Alberta Ltd. 47 The court held
that technical compliance with the regulations is not necessary so long as the
franchisee was given sufficient and timely disclosure of facts relevant to the
decision to purchase.
Including such a provision in Manitoba would give the franchisor more freedom
to err, while still granting the franchisee the required disclosure necessary to
make an informed decision. In other words, the disclosure standard established
43
Ibid.
44 Levitt, supra note 19.
45
Ibid.
46
Alberta Franchises Act: Franchise Regulations, A.R. 240/95, s. 2(4); Prince Edward Island,
Franchises Act: Regulations, P.E.I. Reg. EC232!06, s. 3.
47
[2001] A.B.Q.B. 143.

96 Underneath the Golden Boy
in Emerald is in accordance with the purpose of establishing franchise
legislation. Mr. Dillon suggests that to fix the problem of having such onerous
provisions, Ontario and the ULCC could adopt the substantial compliance
standard of the Alberta Act. Doing so, Mr. Dillon argues, would remove
franchising from the category of absolute liability. 48
In conclusion, since the primary purpose of establishing franchise legislation is
to protect franchisees and to help in making the decision to purchase a
franchise, the ULCC provisions should be adopted. In doing so, the franchisee
will not only be provided with all material facts but also with an extensive list of
standard information as required by the regulations. A "substantial compliance"
provision should make such onerous provisions more manageable for
franchisors, allowing them to err in providing disclosure documents while still
providing the franchisee with all necessary information.
2. Additional Disclosure Categories
The Manitoba Law Reform Commission is considering further expanding the
disclosure requirements by adding new provisions. The following are provisions
that could be added to Manitoba's regulations if and when they are adopted.
(1) When Prince Edward Island introduced franchise legislation in 2006, it did
not adopt the UFA "as is." Instead, a few points were modified. For instance,
P.E.I. is the only jurisdiction that allows disclosure documents to be delivered
electronically. Incidentally, Manitoba should adopt a similar provision, since so
much business is done electronically today. Similarly, Manitoba should consider
other effects the Internet may have on franchises. For instance, a franchisee
should be aware if and how a franchisor may compete with them through the
use of a website. This provision may be added to the regulations under a section
pertaining to the franchisor's policies and practices regarding territory. Clearly
setting this out in the regulations will prevent any litigation arising out of
encroachment issues. Furthermore, the franchisee will know exactly what the
franchisor may and may not do through the Internet.
(2) The inclusion of a franchisor's arbitration or mediation results with former
franchisees should be another addition to Manitoba's legislation. As stated in
the Law Reform Commission's Report, "A review of court decisions is unlikely
to provide an accurate representation of franchise disputes, however. Some
19
franchise agreements require arbitration and do not reach the courts.w If the
current ULCC Regulation made under the Uniform Franchises Act requires that a
franchisor disclose the results of previous litigation under s. 3(c) and (d), and
following the Commission's statement, it may be useful to also disclose the
result of mediation/arbitration for the franchisee to get a clear picture of the
48
Dillon, supra note 42 at 34.
49
Manitoba Law Reform Commission, supra note 14 at 15.

franchisor's legal history. However, since mediation/arbitration is often
conducted and decided in confidence, a franchisor S:lould only be obliged to
disclose the number of cases that were addressed through mediation/arbitration
in the past 10 years. In addition, terms of settlement should not be disclosed as
it would constitute a breach of the confidential nature of mediation/arbitration,
and may dissuade franchisors from being cooperative in future disputes.
The Law Reform Commission also recommends disclosing settled litigation and
terms of settlement. Settled litigation should be treated the same as
mediation/arbitration results. Consequently, Manitoba should require
franchisors to disclose the result and not the terms of settled litigation. Doing so
will not only allow the franchisee to determine if the franchisor is reasonable
and will settle, rather than being litigious. rut it will also clearly. portray the
franchise•s legal history.
(3) Manitoba's legislation should also include a provision whereby the
franchisor must disclose franchise support resources and methods. This will not
only allow a franchisee to choose a franchise that provides them with the
desired support but will also benefit the franchisor that has such a system in
that they will be preferred by several franchisees. This provision will be
beneficial to both parties.
Manitoba would not be the first jurisdiction to adopt such a provision. For
instance, Australia's Trade Practices Act 1974 requires that a franchisor provide
its potential franchisees with a summary of the conditions of the franchise·
agreement that deal with obligations of the franchisor, including an obligation
to provide training both before and after the franchised business starts. 50
Furthermore, Article 142 Bis of Mexico's Law to Develop and Protect Industrial
Property requires that a franchisor disclose to the franchisee all the necessary
training required by the franchisee•s employees, including the manner in which
the franchisor will provide technical assistance. 51
(4) Last, repeated sales of the same franchised outlet should be added to the
disclosure requirements. A franchisee needs to know if the same franchise
location has been sold repeatedly. This will in tum prevent a franchisor from
constantly re·selling the same location, knowing that it will shut down soon,
while blaming the franchisee for the store's failure and keeping the franchisee's
deposit and other fees. In other words, this will alert a franchisee to either not
get involved with a franchisor offering a location that has closed several times in
a short period of time or adjust the price to reflect the poor location.
50
51
Australia, Trade Practices (Industry Codes Franchising) Regulations 1998, SR 1998 No. 162
[Franchising Regulations] online: FCA Franchising Code of Conduct at s. 15.1(a).
Camara de Diputados del H. Congreso de La Union (Centro de Documentacion,
Informacion y Analisis), Ley de Ia Propiedad Industrial, online: .

98 Underneath the Golden Boy
3.Wrap..Around Disclosure Document
Regulations under the P.E.I. and Alberta Acts contain "wrap*around''
provisions. These permit a franchisor to use as its disclosure document a
document that has been authorized by the franchise laws of another
jurisdiction, if supplementary information is included which discloses any
additional information needed to make the foreign document comply with
domestic disclosure requirements. 52 For example, s. 3(2) of the regulations
under the P.E.I. Act states that a franchisor rray use a document that is
prepared and used to comply with the disclosure requirements under the
franchise law or jurisdiction outside Prince Edward Island as its disclosure
document to be given to a prospective franchisee in P.E.I., if the franchisor
includes supplementary information with that document to bring it into
compliance with the disclosure requirements under the P.E.I. Act. 53 The
question facing Manitoba is whether a wrap,around provision should be
included in its franchising legislation.
Prior to answering the question, it is helpful to consider the statutory
requirement of "clarity of disclosure." Section 5(6) of the Arthur Wishart Act
(Franchise Disclosure) 2000, demands that all information in a disclosure
document must be accurately, clearly and concisely set out. Since one of the
purposes of the Act is to rectify a perceived information imbalance between the
franchisor and a prospective franchisee, any disclosure that is confusingly
worded or formatted frustrates that purpose. 54 The requirement of "clear and
conciseu disclosure caters to parties unfamiliar with franchising. Arthur
Trebilcock states:
Try to see the disclosure through the mind of a reader wqo has no experience in
franchising, and no familiarity with the business being franchise d. [ ...] So if you draft a
disclosure document, take the time to provide a clear, concise description of the
required contract provisions. 55
Since this is quite a sensible requirement, it is important to maintain that
disclosure documents are both clear and concise even with the addition of a
uwrap."
As stated earlier, Manitoba is a franchisee province. Thus, for the most part,
franchisors are coming into Manitoba to sell their product and services, and not
52
Arthur J. Trebilcock, "Disclosure - The Advanced Course: Tricky Disclosure Issues and
Some Drafting Tips," (Paper presented to the Ontario Bar Association's 6[h Annual
Franchising Conference: The Domino Effect, November 2006) [OBA Continuing
Education: Toronto, 2006] at 12.
53
Edward N. Levitt, "Annual Legislative Update.'' (Paper presented to the Ontario Bar
Association's (Jh Annual Franchising Conference: The Domino Effect, November 2006)
IOBA Continuing Legal Education: Toronto, 2006] at 45.
5 4 Levitt, suP,.a note 19.
55
Ibid.

------------------ ·----
the other way around. It is imperative to take this into consideration when
thinking about adding a "wrap·around" provision to Manitoba's franchise
legislation because of the origin of the foreign document that a franchisee would
be receiving. When one looks at the list of CFA members, it is clear that the
vast majority of franchisors coming into Canada hail from the United States. 56
Therefore, those franchisors coming into Manitoba will either be from the
United States or other Canadian jurisdictions.
According to Edward N. Levitt, if a franchisor comes to Manitoba from a
Canadian jurisdiction, with a Canadian disclosure document, a "wrap...around"
document for Manitoba makes good business sense. 57 The requirements vary
slightly from province to province, so adding a "wrap,around" clause will not be
too costly for the franchisor or confusing to the franchisee reading it.
Conversely, there would be a concern that a large and complex disclosure
document from a foreign jurisdiction would contain a great deal of inapplicable
information for prospective franchisees and as a result would not be clear and
concise. 58 This, however, may not be the case with a disclosure document from
the United States.
Currently, most U.S. franchisors use a uniform disclosure format called the
Uniform Franchise Offering Circular or UFOC, which will become mandatory
in 2008. 59 Thus, in a few years, all franchisors coming from the U.S. will have a
UFOC at their disposal. A typical UFOC contains considerably more
information than any of its Canadian counterparts. Therefore, a Canadian
franchisee will have more information at their disposal when making the
decision to purchase. The requirement that "plain English" be used and its
standardized format with clear headings will ensure that the document will be
clear and concise. 00 Therefore, if Manitoba were to adopt a "wrap...around"
provision, franchisees would still a comprehensible disclosure document and
franchisors will not have to go through the extra time and expense of
composing a new one.
In the alternative, although adding a "wrap, will make a document comply with
domestic law, the province's extensive disclosure requirements (whether they
emulate Ontario or the ULCC) may require that a franchisor change such a
considerable portion of the body of text of the UFOC to the extent that it may
56
Canadian Franchise Association, supra note 33.
57
Levitt, supra note 19.
58
Ibid.
59
Manitoba Law Reform Commission, supra note 14 at 36-37.
60
Peter Macrae Dillon, "The Case for the Use cf Wrap-Around Disclosure Documents in
" (Fall 2004) :!-1-:2 Franchise Law Journal 73 at 76; online: Siskinds Resources,
Articles of Interest at 5.

100 Underneath the Golden Boy
be easier to create a new one to comply with Manitoba law. 61 The Ontario
Superior Court of Justice commented on the use of a UFOC in 1518628 Ontario
Inc. v. Tutor Time Learning Centres LLC. 62 The court noted that the 2QQ,page
UFOC did not meet Ontario's requirements because it did not have to be
updated to reflect all material facts as they existed on the date that it was
delivered to the prospective franchisee. Not only is it significant that the
Superior Court rejected the UFOC as proper disclosure, but also, and primarily
in this instance, the UFOC was a 200...page document. If a wrap.-around clause
is added to such an extensive document, it is quite possible that it will cease to
be as clear and concise as required by law, creating more difficulties for the
franchisee.
Assuming that the majority of franchisors enter Canada through Ontario,
rather than Alberta, they will have to create a "new" disclosure document in
compliance with the Arthur Wishart Act (Franchise Disclosure), 2000. 63
Consequently, when that same franchisor comes to Manitoba from Ontario, it
will already have in its possession a Canadian disclosure document that will be
easily adaptable to meet Manitoba's requirements. Therefore, compliance by
means of a wrap will be accomplished easily, clearly and concisely.
To accomplish the clarity requirement while using a wrap, Manitoba's
legislation should demand that franchisors provide both an index and summary
of provisions. Doing so will allow franchisees reading the document to not only
navigate through it with great ease but also to read the addenda and body
together as one. Thus, when a franchisor decides to use a wrap, he will also
have to include an index and summary to meet the clarity requirement. The
layout of disclosure documents will be discussed later under the heading
"Additional Suggestions."
In conclusion, Manitoba should only adopt a wrap provision if it also adopts the
requirement that disclosure documents be clear and concise. This will ensure
that franchisees will receive documents that meet the purpose of the Act, that
is, to help them make well informed decisions. Moreover, if a franchisor foresees
that adding a wrap will not produce a clear document, they will have the option
of producing one specific for Manitoba. 64 In addition, :M:tnitoba legislation
should enforce the application of indexes and summaries when a wrap is used,
allowing the reader to navigate through them with greater ease. At the same
61
Debi M. Sutin & Arthur J. Trebilcock, "The Case Against the Use of Wrap,Around
Disclosure Documents in Canada,'' (Fall2004) 24:2 Franchise Law]ournal83 at 83.
62
(2006] CarswellOnt 4593.
63
Sutin & Trebilcock, supra note 61.
64
Edward N. Levitt, "The Prince Edward Island Franchises Act: Canada's Newest Franchise
Statute," online: Mondaq, Canada: Franchise & Distribution @ Gowlings -November
2006 . To view article, you must
become a member of "mondaqn at no cost.

time, including a wrap will allow franchisors to enter the province with their
foreign disclosure documents while still having to inform themselves of the
domestic disclosure requirements in order to deliver an adequate wrap.
4. Exceptions for Confidentiality, Site Selection or Refundable Deposit
Agreements
Disclosure documents must be delivered to a prospective franchisee 14 days
before the signing of an agreement relating to the franchise or the payment of
consideration relating to the franchise. All Acts except Ontarids exempt
confidentiality and site selection agreements from the disclosure requirement;
the Alberta Act also exempts fully refundable deposits. 65 Should franchisors in
Manitoba be able to require a refundable deposit or enter into a confidentiality
or site selection agreement with a franchisee before providing disclosure 66
i. Refundable Deposits
Refundable deposits work in such a way that if the negotiations result in a
franchise being granted by the execution of an agreement, the deposit will be
credited towards the franchise fee. Otherwise, the deposit will be returned to
the applicant, usually minus an administrative fee. 67 It is likely that the purpose
of such a payment is for the franchisee to demonstrate that they are serious
about purchasing a franchise and are not simply conducting a market
investigation hoping to steal trade secrets from a franchisor. Initially this
appears to be a good idea. However, such an arrangement exposes the
franchisee to unscrupulous franchisors claiming to refund the deposit but who,
in reality, will refuse to do so given the opportunity.
The Ontario Superior Court of Justice heard such cases on two separate
occasions. First, in Ali v. Triple 3 Holdings Inc., 68 and second in Scott v. 3 for 1
Pizza & Wings (Canada) Inc. 69 In Ali, the plaintiff franchisee paid a deposit
before signing the Franchise Agreement. When the franchisor declined to alter
the agreement to suit Mr. Ali's needs, Mr. Ali requested his deposit back and
Triple 3 refused. In Scott, the plaintiff franchisee had to go to court in order to
obtain a refund of his deposit, having received nothing in return.
65
Section 4(7) of the Alberta Franchises Act, R.S.A. 2000, c. F 23 states that for the purposes
of subsections 2 (a) and 5 (a), an agreement that contains only terms and conditions relating
to any one or more of the following is not a franchise agreement: (a) a fully refundable
deposit; (b) the keeping confidential or prohibiting the use of any information or material
that may be provided to the prospective franchisee; (c) the designation of a location or
territory of the prospective franchised business.
66
Manitoba Law Reform Commission, supra note 14 at 50.
67
Frank Zaid, Franchise Law, (Toronto: Irwin Law, 2005) at 16.
68
[2001] 0.]. No. 5575.
69
[2003J CarswellOnt 3790.

102 Underneath the Golden Boy
Although these two cases are examples of a franchisee requesting the deposit
back after receiving a disclosure document, they serve to demonstrate how
easily a franchisor can abuse the franchisee by refusing to refund the depofit.
The defendant in Scott went as far as to argue that Scott had contracted with
another party and that, consequently, it did not have the deposit. If Manitoba's
franchise legislation was to require a refundable deposit before a disclosure
document is issued, not only will a franchisee be exposing himself to potential
abuse but he also will be paying money into an enterprise he knows very little
about. Considering that the purpose of such legislation is to protect franchisees
and help them make an informed decision, this provision would seriously
endanger that goal. Therefore, Manitoba should not allow franchisors to claim
refundable deposits before issuing disclosure documents.
However, since franchisors may still be desirous of proof of a franchisee's
legitimate interest, an alternative is required. After all, preparing disclosure
documents and providing franchisees with other informational materials comes
at a cost to franchisors. Thus, Manitoba legislation should allow franchisors to
request that franchisees make a deposit, in trust, with their own lawyers as a
show of faith. This deposit should not exceed 5% of the total franchise fee, up
to a maximum of $5 000, since doing otherwise would be too onerous for
franchisees. In including this requirement, fanchise legislation would ensure
franchisors still receive assurance of a franchisee's legitimate interest, while at
the same time protecting the franchisee's money from unscrupulous franchisors.
This deposit could then be used towards the franchise fee or as a retainer for the
franchisee's legal costs.
ii. Confidentiality Agreements
The purpose behind Confidentiality Agreements is to protect franchisors.
Developing a successful franchise system can only come about as a result of the
expenditure of considerable time and money by the franchisor. Each element of
the system, from the development of the products and services to the
advertising fund and marketing program, contains valuable information
proprietary to the franchisor. With so much invested in the business system, the
franchisor may require that the franchisee keep the franchise system strictly
confidential. 70 A typical confidentiality clause may look as follows:
The franchisee acknowledges that its knowledge of the operation of the Franchised
Business will be derived from the information disclosed to the directors, officers,
employees and agents of the Franchisee by the Franchisor pursuant to this agreement
and that certain of such information, including, without limitation the contents of the
Manual, is proprietary, confidential and a trade secret of the franchisor. The
Franchisee agrees that it shall maintain absolute confidentiality of such information
70 Zaid, supra note 67 at 20.

during and after the term of this agreement and that it shall ensure that such persons
will not use any such information in any other business or in any manner. 71
It should be noted that protecting franchise trade secrets and confidential
information benefits franchisees as well as the franchisor. Franchisees would
lose much of the economic value of their business if the information they rely
upon to operate their franchise became publicly available such that others could
easily duplicate the franchise business and then compete with actual
franchisees. n
From a franchisor's perspective, requesting that a franchisee sign a
confidentiality agreement before providing any disclosure is rather sensible. This
is because a franchisor will want to be sure that a franchisee will not steal any
secrets from the franchise, or refuse to sign the franchise agreement and then
open a competing store. From a franchisee's perspective, signing a
confidentiality agreement prior to receiving a disclosure document makes no
difference whatsoever. There is nothing at risk. The ULCC recommends that
confidentiality agreements should be able to be entered into prior to disclosure
and states that a prospective franchisee would not be prejudiced in this regard. 73
Therefore, to protect franchisors from unscrupulous franchisees that want to
steal trade secrets, Manitoba's legislation should allow franchisors to issue
confidentiality agreements before providing disclosure.
If Manitoba chooses to follow a format similar to Ontario's legislation, a
franchisor would be in violation of the Act by having the prospective franchisee
sign a confidentiality agreement before they receive a proper disclosure
document. Section 5 (1) (a) of the Ontario Act requires that a disclosure
document must be provided 14 days prior to the signing of any agreement.
Consequently, Manitoba would have to follow Alberta, P.E.I. and the ULCC
and specifically permit such pre disclosure confidentiality agreements by
excluding confidentiality agreements from the definition of a franchise
agreement. 74
iii. Site selection agreements
Unlike the Arthur Wishart Act (Franchise Disclosure), 2000, the P.E.l. and
Alberta Acts as well, as the UFA, exclude site selection agreements from the
71
Daniel F. So, Canadian Franchise Law Handbook, (Markham: LexisNexis Canada Inc.,
2005) at 143.
72
MarkS. VanderBroek & Christian B. Turner, "Protecting and Enforcing Franchise Trade
Secrets," (Spring 2006) 25:4 Franchise Law ]oumal191 at 192.
73
Uniform Law Conference of Canada, Uniform Franchise Act with Commentary, online:
Proceedings of Annual Meetings, 2004 Regina, Commercial Law Documents
at 15.
14
Levitt, supra note 53 at 20.

104 Underneath the Golden Boy
definition of "franchise agreement." Accordingly, and unlike Ontario, these
agreements may be entered into in advance of a disclosure document being
given. 75 If the franchise is a turnkey operation, where the franchisor is in charge
of development and selection of premises and the franchisee simply has to
unlock the door to begin operating its business, no site selection agreement is
needed. However, when the franchisee is partially or completely responsible for
choosing and developing the location, a site selection agreement will be
needed. 76
A site selection agreement is a breed of commitment agreement. Under a
commitment letter, the supposed franchisee's pre,opening obligation is to
procure premises for the franchised business. The site selection agreement may
impose certain site and lease criteria and approvals with which the franchisee
must comply in order to move forward with the development of the franchise.
Often, the site selection agreement requires the franchisor to review it promptly
and to approve or reject the site. 77
The ULCC recommends that an agreement which is restricted to designation of
a location should be able to be entered into prior to disclosure and should
therefore be exempt from disclosure. A prospective franchisee would not be
prejudiced in this regard. 76 Consequently, s. 10 of the UFA states that an
agreement is not a franchise agreement or any other agreement relating to the
franchise if the agreement only contains terms in respect of designating a
location, site or territory for a prospective franchisee.
In theory, receiving the site selection agreement before the disclosure document
could be beneficial for the franchisee. This is because rather than having to
become familiar with a very large document prior to signing the Franchise
Agreement, the franchisee will have more time to consider each document
separately. Consequently, allowing a franchisor to issue a site selection
document prior to the disclosure document will result in a franchisee being able
to make a well,informed decision. In other words, having become well
acquainted with both documents due to the added reading time, a franchisee
will be more informed when making the decision to purchase. Thus, Manitoba's
legislation should follow Alberta, P.E.I. and the ULCC and exclude site
75
Larry Weinberg, "Franchise Law e LERT - Canadian Franchise Law Legislative
Updates/' online: Cassels Brock Resources .
76
Zaid, supra note 67 at 14.
77
Kevin M. Shelley & Jonathan J. TorontoJ "Preliminary Agreements: How to Avoid
Unintended Contractual Obligations," (Fall 2005) 25:2 Franchise Law Journal 47 at 53; or
online: Franchise Law Journal .
78
Levitt, supra note 64.

selection documents from the definition of franchise agreements, allowing a
franchisor to issue the former prior to the latter.
B. Exemptions
The general policy behind the disclosure requirement is to provide prospective
franchisees with information relating to the franchise, the franchise system, and
the costs of operating and establishing a franchised business. There are a
number of provisions in place in all regulated Canadian jurisdictions whereby
franchisors may be exempt from delivering a disclosure document to a
prospective franchisee or financial statements in conjunction with the
production of a disclosure document. 79 The question facing Manitoba at the
moment is whether the ability to exempt certain franchisors from the
requirement to provide financial statements, or to implement other exemptions
from the requirements of legislation or regulations is appropriate. 00
I. General Exemptions from Legislation or Regulations
Broadly speaking, general exemptions from franchise legislation and regulations
exempt a party selling or renewing a franchise in certain circumstances from
having to provide disclosure documents. The question facing Manitoba under
this heading is whether the ability to implement exemptions from the
requirements of legislation or regulations is appropriate.
Every regulated jurisdiction in Canada has implemented general exemptions.
Section 5 of the Alberta Franchises Act, 81 s. 5 (7) of Ontario's Arthur Wishart Act
(Franchise Disclosure), 2000, and s. 5(7) of P.E.I.'s Franchises Act cover the
authorized exemptions in each province. Since every regulated jurisdiction in
Canada contains exemptions, Manitoba should not be the exception. The fact
that each Act contains exemptions does not mean that a potential franchisee
will be forced to purchase a franchise without sufficient information about the
business. For example, s. 5(7)(c) of the Arthur Wishart Act (Franchise
Disclosure), 2000 states that disclosure requirements will not be enforced in the
grant of an additional franchise to an existing franchisee if:
• That additional franchise is substantially the same as the existing
franchise that the franchisee is operating; and
79
80
81
Paul D. Jones & Daniel F. So, "Houdini's Franchise Law: Exclusions and Exemptions to
Disclosure in Canada," (Paper presented to the Ontario Bar Association's 6th Annual
Franchising Conference: The Domino Effect, November 2006) [OBA Continuing Legal
Education: Toronto, 2006] at 25.
Manitoba Law Reform Commission, supra note 14 at 51.
R.S.A. 2000, c. F-23, s. 5.

106 Underneath the Golden Boy
• There has been no material change since the existing franchise
agreement or latest renewal or extension of the existing franchise
agreement.
In such a case, the franchisee would already posses all the required information
to make the purchase, hence the exemption.
When drafting an exemptions section for Manitoba, the differences between
Alberta and Ontario should be noted. For instance, Ontario does not have an
equivalent of Alberta's s. 5(1)(g). The section creates an exemption from
disclosure when the sale is of a right to a person to sell goods or services within
or adjacent to a retail establishment as a department or division of the
establishment, if the person is not required to purchase goods or services from
the operator of the retail establishment More importantly, Alberta has
incorporated one further exemption by allowing the Minister to exempt any
person or franchise from any or all provisions of the Act or regulations upon
becoming satisfied that to do so would not be prejudicial to the public interest. 82
This is an important difference because it allows the Minister to create further
exemptions upon application where the occasion so warrants.
Manitoba should follow Alberta's example and adopt its exemptions section.
Not only is the section more extensive but also it contains the further
exemption that allows a Minister to grant an exemption where to do so would
not be prejudicial to the public interest. In keeping with the act's purpose of aiding
the franchisee to make an informed decision, an exemption will still allow the
franchisee to do so while fostering expediency.
2. Exemption from Franchisor's Obligation to Provide Financial
Statements
Financial disclosure is a very sensitive topic. Consequently, most franchisors are
wary of disclosing sensitive financial information in the form of financial
statements required to be provided as part of a disclosure document. The
general requirement to disclose financial information about the franchisor is to
inform the prospective franchisee of the financial health and success of their
prospective franchisor. The provisions in Alberta, P.E.I. and Ontario providing
franchisors with an exemption from disclosing financial statements were
intended to provide mature, established and financially viable franchisors that
have a consistent record of good relations with franchisees and who comply
with the law from having to disclose financial information to prospective
franchisees, or where to so exempt would not prejudice the public interest. 83 In
order to better understand the financial document disclosure exemption, it is
necessary to consider the actual provisions.
82
S.A. 1995 c. F#l7.1, s. 6.
83
Zaid, supra note 67 at 34-35.

Section 11 of the Regulations Made Under the Arthur Wishart Act (Franchise
Disclosure), 2000/ 34 contains the tripartite test for the financial exemption. It is
important to note that this is a self.-declaratory process, and the onus to satisfy
the tests rests on the applicant. A franchisor must thus establish that: (1) the
franchisor has a net worth on a consolidated basis based on its most recent
audited or review engagement financial statement of not less than $5 million or
$1 million if it is controlled by a corporation that has a net worth of not less
than $5 million; (2) the franchisor has had at least 25 franchisees operating in
Canada or in a single country other than Canada during the five;year period
prior to the disclosure document, or it is controlled by a corporation that
satisfies this requirement; and (3) the franchisor, its associates, officers,
directors, or general partners have not had any judgment, order or award made
in Canada against them relating to fraud, unfair or deceptive business practices,
or a law regulating franchises, including the Arthur Wishart Act (Franchise
Disclosure), 2000 in the five years prior to the date of the disclosure document. 85
In contrast, Alberta has incorporated a two-pronged test that does not contain
the third step from Ontario's regulations. According to s. 1 of the Franchises Act
Exemption Regulation, 86 a franchisor will not be required to include financial
statements in a disclosure document given to a prospective franchisee if:
(a) the franchisor has a net worth on a consolidated basis according to its most recent
financial statements, which have been audited or for which a review engagement
report has been prepared, of not less than $5 million or of not less than $1 million if
the franchisor is controlled by a corporation that has a net worth of no less than $5
million; and
(b) the franchisor has had at least 25 franchisees conducting business at all times in
Canada during the 5year period immediately preceding the date of the disclosure
document, has conducted business that is the subject of the franchise continuously for
no less than 5 years immediately preceding the date of the disclosure document, or is
controlled by a corporation that meet the two previous requirements.
It may be argued that Alberta has not included the third requirement from
Ontario's test in an attempt to restrict it to purely financial matters. In other
wordst as the fact that a franchisor, its associates, officers, directors or general
partners have not had any judgments made against them relating to fraud,
unfair or deceptive business practices or a law regulating franchises, has no
relation to the franchise's past and current financial status, it should have no
influence on whether an exemption with regards to financial statement should
apply. After all, a franchisee will come to learn of the franchisor's previous
convictions or pending charges through Schedule 1 of the Regulations. 87
84
0. Reg. 581/00.
85
So, supra note 71 at 112.
86
Alta. Reg. 312/2000, s. 1.
87
A.R. 240/95 Sched. 1; 317/2000, s. 2.

108 Underneath the Golden Boy
Regardless of the specific requirements behind Alberta and Ontario's
exemptions, incorporating them into Manitoba's legislation is a sensible idea.
Taking only the first two steps in each test in consideration, it is clear that only
those franchisors who are so large and well established that very little doubt
may exist as to their financial status will be exempt from delivering financial
statements. This means that a franchisee will still be able to make an informed
decision, knowing that no disclosure document was provided because of the
franchisor's size. However, if Manitoba were to incorporate this exemption, a
provision should be added allowing a franchisee to still demand financial
statements. If the franchisee is required to invest a very large sum in order to
acquire the franchise, s/he should be able to consider the company's financial
situation by looking at a statement. Assuming that this is a very sensitive topic
for the franchisor, the franchisee may be required to sign a confidentiality
agreement that the financial statements will not be disclosed to anyone outside
the franchise, thus successfully protecting such sensitive information. Ideally,
Manitoba should introduce a liquidity test, since a franchise may have m
ostensibly good net,worth but be illiquid. However, doing so would make
Manitoba too strict, possibly deterring incoming franchisors.
What of the third step in Ontario's test The requirement that the franchisor,
its associates, officers, directors or general partners have not had any judgments
made against them relating to fraud, unfair or deceptive business practices or a
law regulating franchises should be included in Manitoba's franchise legislation.
Although it may not be specifically related to financial issues, legislation should
require a franchisor to be as transparent as possible, especially where they have
been charged or convicted of such offences.
In conclusion, Manitoba should adopt the exemption in question to allow large
franchisors to refrain from disclosing sensitive financial information.
Furthermore, Ontario's provision should be adopted with an addendum
allowing a franchisee to request disclosure of financial documents where the
franchisor has applied for an exemption. If the request is granted, the franchisor
should be allowed to require the franchisee to sign a confidentiality agreement
protecting all financial information.
C.. Franchise Relationship Regulation
The relationship between a franchisor and his franchisees has often been
likened to a partnership or marriage. These analogies are valid because of the
interdependence of the parties, the division of responsibilities, the collective
effort for the common good and the sharing of the fruits of that effort. But like a
partnership or marriage, a franchise relationship can turn sour and become a

itter experience for all concerned. 88 Consequently, legislative provisions are
necessary to ensure the preservation of this delicate relationship.
Until the year 2000, when Ontario introduced the Arthur Wishart Act
(Franchise Disclosure), 2000, Alberta was the only Canadian jurisdiction to have
regulated the franchise relationship. However, because the population in
Alberta represents less than 10 percent of the total Canadian population, the
franchise relationship throughout Canada was governed primarily by common
law. 89 Since the year 2000, the introduction of franchise legislation in Ontario,
P.E.I. and possibly New Brunswick has increased the statutory protection of the
franchise relationship.
1. Current Legislation, Bill32 and the VFA
i.Alberta
Alberta first introduced franchise relationship proviSlons in 1995, when it
replaced the old Franchises Act. 90 The new Act adopted two relationship
provisions, addressing the duty of fair dealing and the franchisee's right to
associate. Section 7 of the Act states that every franchise agreement imposes on
each party a duty of fair dealing in its performance and enforcement. Section
8(1) of the Act states that a franchisor or its associate must not prohibit or
restrict a franchisee from forming an organization of franchisees or from
associating with other franchisees in any organization of franchisees.
Furthermore, a franchisor or its associate must not directly or indirectly penalize
a franchisee for associating with others.
The common law continues to play an important role in presiding over
franchise relationships. In Thompson v. Cinnaroll Bakeries Ltd., 91 the defendant,
who held an exclusive franchise for Cinnabon bakeries in Western Canada,
allowed the agreement to expire and opened up a new store at its own cost. The
plaintiff franchisor claimed breach of contract by the defendant for failing to
renew the agreement. The Alberta Court of Queen's Bench decided that,
according to the franchise agreement, the defendant would be bound to renew
should the renewal be offered on the same terms as before. Where reasonable
changes are proposed, it would be unreasonable for the defendant to refuse to
renew the agreement. However, since the defendant was not acting
unreasonably by refusing to renew due to significant changes introduced by the
franchisor, there was no breach of contract.
88 Edward N. Levitt, "The Franchisor/Franchisee Relationship,', online: Gowlings Resource
Centre < http://www.gowlings.com/resources/publications.asppubid =1134>.
89
Allan D.J. Dick & Markus Cohen, "The Duty of Good Faith and Fair Dealing in Canada,"
(Fall2004) 24:2 Franchise Law Journal 89 at 89.
90
R.S.A. 1980, Ch. F17 (repealed).
91
[2002] A.B.Q.B. 1112.

110 Underneath the Golden Boy
ii. Ontario
Ontario was the second Canadian jurisdiction to regulate franchise
relationships, doing so in 2000. Section 3(1) of the Arthur Wishart Act
(Franchise Disclosure), 2000, emulates Alberta's duty of fair dealing. However,
the Ontario Act is more extensive than the Alberta Act since it provides that:
A party to a franchise agreement has a right of action for damages against another
party to the franchise agreement who breaches the duty of fair dealing in the
performance or enforcement of the franchise agreement. 92
The Ontario Act also establishes that, for the purposes of the fair dealing
section, the duty of fair dealing includes the duty to act in good faith in
accordance with reasonable commercial standards. 93 The commercial
reasonableness standard of good faith has received a fair amount of criticism.
Some suggest that enforcement of a contract should be about enforcement of
the objective intention of the parties and not a wholesale enforcement of norms
and concepts external to the contract. However, including reasonable
commercial standards in the definition of fair dealing provides the concept of
fair dealing with the contextual clarification it requires and is consistent with
the standard of good faith already applied in the Canadian common law. 94
The right to associate is also addressed by the Ontario Act, once again
emulating Alberta. However, Ontario has two additional sections. First, s. 4 (4)
states that any provision in a franchise agreement or other agreement relating
to a franchise which purports to interfere with, prohibit or restrict a franchisee
from exercising their right of association is void. Second, s. 4(5) grants the
franchisee a right of action for damages if a franchisor or franchisor's associate
contravenes the association section.
The common law has potentially expanded the scope of the duty of good faith
and fair dealing. In 530888 Ontario Ltd. v. Sobeys Inc./ 5 the Ontario Superior
Court of Justice stated that parties to a contract are expected to fulfill their
contractual obligations honestly and in good faith. Furthermore, the court
asserted that commercial relationships are not immune from the imposition of
fiduciary duties. Justice Lax stated:
The concept of power dependency is fact driven. Fiduciary duties will be imposed in
appropriate circumstances to govern the manner in which discretion is exercised.
92
Arthur Wishart Act (Franchise Disclosure) 2000, supra note 16 at s. 3(2).
93
Ibid. at s. 3 (3).
94
Edward N. Levitt & Deborah E. Palter, < Ontario Passes Franchise Disclosure Act," online:
Canadian Franchise Association, Government Relations .
95
[2001] CarsweUOnt 240.

This decision is of particular importance in that it distinguishes ]ima Ltd. v.
Mister Donut of Canada Ltd., 96 a landmark Supreme Court of Canada ruling
stating that the franchise relationship does not give rise to fiduciary duties. The
current state of the common law is that a franchisor may be a fiduciary but only
where the facts so warrant.
iii.P.E.I.
Prince Edward Island boasts the newest franchise legislation in Canada, with
the Franchises Act 97 coming into force on 1 July 2006. Like the Ontario Act and
Alberta Act, the P.E.I. Act has enacted relationship provisions enforcing the
duty of fair dealing and the right of franchisees to associate and organize. 98 P.EJ.
has followed Ontario's fair dealing provisions closely. However, s 3 (1) of the
P.E.L Act extends the duty of fair dealing by adding "including the exercise of a
right under the agreement." Regardless of any differences, for all provinces, the
duty of fair dealing is a mutual obligation between franchisors and franchisees,
whereas the right to associate is designated to protect the interests of
franchisees. 99 Furthermore, P.E.I. struck the phrase 11 in the performance or
enforcement of the franchise agreement" from Ontario's right of action section
under fair dealing, so that the section reads:
A party to the franchise agreement has a right of action for damages against another
party to the franchise agreement who breaches the duty of fair dealing. 100
In contrast to the procedure followed in enacting fair dealing provisions, P.E.I.
adopted Ontarids association provision verbatim.
iv. New Brunswick
The Provincial Legislature of the Province of New Brunswick proposed Bill32,
entitled the Franchises Act, at a first reading on 23 February 2007. If passed, the
Bill will impose a duty of good faith and fair dealing on franchisors and
franchisees. The legislation will also protect the right of franchisees to
associate. 101 Although New Brunswick altered the order, it followed P.E.I.'s fair
dealing provision, extending the performance and enforcement of the franchise
96
[1975] 1S.C.R. 2.
97
R.S.P.E.I. 1988, Cap. F14.1.
98
Lawrence Weinberg & Jayne Westlake, "Canada's East Coast Provinces Pursue Interest in
Franchise Law," online: Franchise UPDATE Archive, Past Articles .
99
Ibid.
100
R.S.P.E.I. 1988, Cap. F l4.1, s. 3(2).
101
Richard Leblanc, "New Brunswick Reintroduces Franchise Legislation," FranNews (Spring
2007), online: Miller Thomson LLP, Publications, Newsletters at 1.

112 Underneath the Golden Boy
agreement to include the exercises of a right under the agreement. Once again,
Ontario's association provisions were adopted verbatim.
"·ULCC
The Uniform Franchises Act contains the same fair dealing provision as P.E.L.
The expansion of the section from its Ontario counterpart means that the duty
of fair dealing will not only apply during the performance and enforcement of
the agreement but also in the exercise of a right under it. The ULCC argues
that the addition of the words "in the exercise of a righe' is necessary because
the duty of fair dealing incorporating the duty of good faith and commercial
reasonableness standards in the Ontario Act does not extend to express
contractual provisions granting the franchisor discretionary authority over
rights to be exercised during the term of the contract that may be carried out
without regard to fair dealing. 102
When drafting its model act, the ULCC chose to follow Ontario's association
provisions rather than Alberta's. The reason for this decision is that the Alberta
Act has been drafted in the negative, that is, that a franchisor or its associate
may not prohibit or restrict a franchise from forming an organization while the
Ontario Act has been drafted in the affirmative, where a "franchisee may
associate with other franchisees." 103
2. Recommendation for Manitoba
The question at hand is what relationship provisions Manitoba ought to adopt.
The options range from Alberta's narrower provisions to P.E.I., New Brunswick
and the ULCC's wider provisions; Ontario stands in the middle of the spectrum.
All relationship provisions pertain to the duty of good faith and the right of
franchisees to associate.
With regard to the duty of fair dealing, Manitoba ought to adopt the widest
provisions. Since these extend the duty from a pre..contractual obligation to
apply to the exercise of a right under the agreement, franchisees will be
protected throughout their entire relationship with the franchisor. Conversely,
franchisors will be protected from franchisees since the duty is reciprocal. It is
necessary to note that the common law assumes that parties to a contract are
equal and capable of looking out for their respective interests. Since this is not
the reality in a franchise relationship, due in part to the power imbalance
between a .franchisor and franchisee, legislation is needed to compensate for this
shortcoming. 104 Thus, the duty of good faith and fair dealing must be included
in Manitoba's franchise legislation.
102
Uniform Law Conference of Canada, supra note 73 at 9.
103
Ibid.
10 4 So, supra note 71 at 212.

A right of action should also be granted to ensure that parties abide by the
requirements or risk fadng legal action. Lastly, the expansion of the duty of fair
dealing to include reasonable commercial standards ought to be adopted as
well. As stated earlier. including reasonable commercial standards in the
definition of fair dealing provides the concept of fair dealing with the contextual
clarification it requires and is consistent with the standard of good faith already
applied in the Canadian common law. 105
Manitoba's franchise legislation should also grant franchisees the right to
associate, emulating the Ontario and P.E.l. Act as well as the New Brunswick
BilL Since associations may be beneficial to both franchisors and franchisees, a
franchisee's right to associate or join an organization should be protected.
Edward N. Levitt stated:
The association can assist in dispute resolutions between the franchisor and
franchisees, provide a useful feedback mechanism for all sorts of issues the
system, assist the franchisor in dealing with franchisees who operate poorly or contrary
to the interest of everyone h the system, raise the level of commitment of all
franchisees and assist in the introduction of new products and services into the
system. 106
3. Additional Franchise Relationship Issues
Current franchise relationship legislation in Canada only addresses a small
portion of relationship issues. Although extending the duty of fair dealing to
include the performance of the contract may provide more protection to
franchise parties, several areas remain where no protection is issued. These
include contract termination, renewal of contract, transfers and sale of a
franchise by a franchisee.
i. Contract Termination
The issue under this heading is whether Manitoba ought to introduce
termination provisions limiting a franchisor's right to terminate a contract only
to instances where there is good cause. However, prior to discussing whether
some form of legislation should be adopted, it is necessary to consider whether
Manitoba is in need of statutory termination provisions or if the common law
has addressed the issue sufficiently so that no legislation is needed.
Manitoba's Court of Queen's Bench has already addressed the issue of
termination in two instances. In John Deere Ltd. v. G.A.E.L. Inc./ 07 the Court
stated that reasonable notice is required to terminate an agreement and that
termination rights must not be exercised on the basis of questionable and flimsy
105
106
Levitt & Palter, supra note 94.
Edward N. Levitt, "Franchisee Associations," online; Gowlings Resource Centre, .
107
Supra note 9.

114 Underneath the Golden Boy
grounds. Furthermore, Monnin J. found that the termination clause in the
dealer agreement must have "reasonableness" read into it. In Halligan v. Liberty
Tax Service Inc./os the Court found that the franchisor's attempt to terminate
the contract was malicious and, thus, a breach of the duty of good faith.
Overall, Manitoba's common law forces a franchisor to give reasonable notice
upon termination, to have reasonable grounds to do so and to act in good faith.
Although Manitoba's Court of Queen's Bench has established certain
requirements upon termination, several questions that arise upon termination
remain unanswered. First, there is no explanation as to what reasonable
grounds for termination may be and, second, there is nothing specific with
regard to providing notice. Should a franchisor allow the franchisee to cure the
default How much time should the franchisee be allotted to cure the default
Should there be exemptions to providing a franchisee with the right to cure
Since Manitoba's common law does not address the issue of franchise
termination, a statutory provision should be introduced.
Iowa's legislation should be considered as a model since it is recognized as being
the most comprehensive. 109 Iowa's termination provisions begin by stating:
Except as otherwise provided by this chapter, a franchisor shaH not terminate a
franchise prior to the expiration of its terms except for good cause. For the purposes of
this section, "good cause" is cause based upon a legitimate business reason. 110
11
The Iowa Act further states that good cause" includes the failure of a
franchisee to comply with any material lawful requirement of the franchise
agreement, provided that the termination by the franchisor is not arbitrary or
capricious when compared to the actions of the franchisor in other similar
circumstances. m The Act provides the franchisee with the opportunity to cure
the alleged default after receiving written notice stating the basis for the
proposed termination. The Act also includes an exemption for termination
without providing the franchisee the opportunity to cure, such as when the
franchisee or the business to which the franchise relates is declared bankrupt. 112
The length of time a franchisor will grant a franchisee to cure an alleged default
is an essential matter pertaining to termination of a franchise agreement. Iowa's
legislation states that after service of notice, the franchisee shall have a
reasonable period of time to cure the default, which in no event shall be less
than 30 days and no more than 90 days. 113 In contrast, Australia's Trade
Practices Act 1974 states that the franchisor must allow the franchisee a
108
Supra note 11.
109
Manitoba Law Reform Canmission, supra note 14 at 52.
110
1992 Franchises Act, Iowa Code § 523H.7.1.
m Ibid.
112
Ibid.at§523H..2 and§523H.7.3.
113
Ibid. at §523H.7.2.

easonable time to remedy the breach. A "reasonable time" is, however, limited
by the subsequent section to no more than 30 days. 114 Similarly, the California
Franchise Relations Act requires that a franchisee's reasonable opportunity to
cure the failure should not exceed 30 days. 115
Manitoba should follow Australia and California's example in setting a 30 day
limit. Iowa's limit of 90 days appears to be an excessive time in which to require a
franchisor to endure a defaulting franchisee. Adopting a shorter limit will
induce a franchisee to cure the default faster, to the franchise's benefit, and
shall have no detrimental effect on the franchisee. In addition, Manitoba could
introduce an exception to this limit when the parties initially agree to a longer,
but never shorter, period through the franchise agreement. To provide a further
incentive for a franchisee to comply, the termination clause in a franchise
agreement should be statutorily required to include a liquidated damages
section, whereby a franchisor establishes what a franchisee will have to pay in
compensation in case of failure to remedy the default. Non,compliance with the
request to cure the default should render the contract void, allowing the
franchisor to sell the franchise to other potential franchisees.
It is important to note that Iowa's legislation covers the termination by a
franchisor in instances where the franchisee is in default. What happens when
the franchisor simply wants to terminate the contract for no particular reason
Manitoba should introduce a section addressing this issue as well. In doing so,
Manitoba's franchise legislation should allow a franchisor wishing to terminate
the franchise agreement without good cause to do so, only after paying a
penalty. Upon termination, a franchisor would have to pay the pro rata value of
the franchise plus a portion of the cost of the business as assessed by an
independent business advisor. For instance, if the franchisee had originally paid a
$250 000 franchise fee for a five,year period and the contract is cancelled on
year four, then the franchisor should pay the franchisee $50 000, which is the
amount the franchisee had paid per year under the agreement. Introducing such
a clause would not only ensure that franchisors exercise caution in terminating
agreements, but also ensure that franchisees who had counted on the
franchise's income still manage to receive it.
By adopting such legislation, Manitoba would become the first Canadian
jurisdiction to protect franchisees from contract termination while providing
franchisors with a guideline as to what steps to take in order to terminate a
franchise contract adequately.
114
Australia, Trade Practices (Industry Codes- Franchising) Regulations 1998, supra note 50 at
ss. 21(2)(c) and 21(3).
115
Cal. Bus. & Prof.Code §20020.

116 Underneath the Golden Boy
ii.Renewal of Contract
The franchise agreement may include a right of renewal for the franchisee,
which would be exercisable only if the franchisee has complied with certain
conditions. Typical conditions precedent to the exercise of a renewal option are
that the franchisee (i) is in good standing under the franchise agreement and all
other agreements with the franchisor; (ii) provides to the franchisor written
notice of its intent to renew; (iii) agrees to execute the then current standard
franchise agreement used by the franchisor for the grant of new franchises; and
(iv) agrees to pay the franchisor a renewal fee. 116 In the absence of renewal. the
franchisor will be free to retain, re...license, close, or re...organize the business for
its own account. 117
Since Manitoba courts have yet to hear a franchise renewal case, it is necessary
to look to other jurisdictions to determine if the common law already provides
sufficient protection upon renewal. In Sultani v. Blenz The Canadian Coffee
Co., 118 the British Columbia Supreme Court held that a duty of fair dealing
imposed on a franchisor does not go so far as to compel a party to renew an
expiring relationship when it is not commercially reasonable to do so, and
where there is no express right of renewal contained in the agreement. In
Thompson v, Cinnaroll Bakeries Ltd., 119 the Alberta Court of Queen's Bench held
that, according to the franchise agreement, the franchisee was bound to renew
the contract unless significant changes had been made to the original contract,
such as an increase in royalty payments and loss of exclusivity in a specific
market.
The precedent established by renewal cases fails to adequately address the
renewal of franchise agreements. It fails to deal with situations where oral
promises to renew are not upheld as well as instances where the franchise
agreement does not mention the option of renewal, where franchise parties are
not bound to exercise good faith and fair dealing. It is clear that legislation is
necessary to complement the common law, forcing parties to exercise their best
business behavior when dealing with each other upon renewal.
Having established that Manitoba is in need of renewal provisions, one s:10uld
consider how other jurisdictions with franchise legislation address the matter.
Since none of the Canadian provinces with franchise regulation include renewal
clause, one must look abroad. The United States, having implemented
116
Zaid, supra nate 67 at 14.
111 Paul J. Bates & R. David House, "Canadian Franchise Disputes/' (Paper presented to the
6th Annual Franchise Conference: The Domino Effect, November 2006) [Toronto: Ontario
Bar Association Continuing Legal Education) at 10.
118
[2005] B.C.J. No. 846.
119 [2002] ABQB 1112.

different renewal provisions in several of its states, provides the most complete
example.
California boasts the most extensive non renewal clause, found in the California
Franchise Relations Act. Article 4, s. 20025 of the Act states that no franchisor
may fail to renew a franchise agreement unless he provides the franchisee at
least 180 days prior to written notice of its intention not to renew. Furthermore,
the franchisor must allow the franchisee to sell his business to a purchaser
meeting the franchisor's requirements for granting a new franchise during the
180,day period. A franchisor may refuse renewal where he withdraws from
distributing his products or services through franchises in the geographic market
served by the franchisee. 120 The following provisions, however, restrict this
section:
(1) Upon expiration of the franchise, the franchisor agrees not to seek to enforce any
covenant of the non-renewed franchisee not to compete with the franchisor or
franchisees of the franchisor; and
(2) The failure to renew is not for the purpose of converting the business conducted by
the franchisee pursuant to the franchise agreement to operation by employees or
agents of the franchisor for such franchisor's own account; and
(3) Where the franchisor determines to sell, transfer or assign its interests in a
marketing premises occupied by a franchisee whose franchise agreement is not renewed
pursuant to this paragraph:
(A) The franchisor, during the 180 day period after giving notice offers such franchisee
a right of first refusal of at least 30 days' duration of a bona fide offer, made by another
to purchase such franchisor's interest in such premises; or
(B) In the case of the sale, transfer, or assignment to another person of the franchisor's
interest in one or more other controlled marketing premises, such other person in good
faith offers the franchisee a franchise on substantially the same terms and conditions
currently being offered by such other person to other franchisees. 121
Lastly, in addition to the 180,day notice, the Act allows for non,renewal when
the franchisor and franchisee fail to agree to changes or additions to the terms
and conditions of the franchise agreement, if such changes or additions would
result in renewal of the franchise agreement on substantially the same terms
and conditions on which the franchisor is then customarily granting original
franchises. In such instancest the franchisor may give the franchisee written
notice of a date which is at least 30 days from the date of such notice, on or
before which a proposed written agreement of the terms and conditions of the
renewal franchise shall be accepted in writing by the franchisee. Such noticet
which must be given no less than 180 days before the end of the franchise termt
may state that in the event of failure of such acceptance by the franchisee, the
12° Cal. Bus. & Prof. Code §20025.
m Ibid. at §20025(e).

118 Underneath the Golden Boy
notice shall be deemed a notice of intention not to renew at the end of the
franchise term. 122
Under the Illinois Franchise Disclosure Act of 1987, it is deemed a violation of the
Act for a franchisor to refuse to renew a franchise of a franchised business
without compensating the franchisee either by repurchase or by other means for
the diminution in the value of the franchised business caused by the expiration
of the franchise. This shall be so where (a) the franchisee is barred by the
franchise agreement (or by the refusal of the franchisor at least six months prior
to the expiration date of the franchise to waive any portion of the franchise
agreement which prohibits the franchisee) from continuing to conduct
substantially the same business under another trademark, servicemark, trade
name or commercial symbol in the same area subsequent to the expiration of
the franchise; or (b) the franchisee has not been sent notice of the franchisor's
intent not to renew the franchise at least six months prior to the expiration date
or any extension thereof of the franchise. 123
Iowa's 1992 Franchises Act establishes that a franchisor shall not refuse to renew
a franchise unless both of the following apply: (a) the franchisee has been
notified of the franchisor's intent not to renew at least six months prior to the
expiration date or any extension of the franchise agreement; or (b) any of the
following circumstances exist:
(1) Good cause exists, provided that the refusal of the franchisor to renew is not
arbitrary or capricious [good cause means based on legitimate business reasons];
(2) The franchisor and franchisee agree not to renew the franchise;
(3) The franchisor completely withdraws from directly or indirectly distributing ts
products or services in the geographic market served by the franchisee, provided that
upon the expiration of the franchise, the franchisor agrees not to seek to enforce any
covenant of the non renewed franchisee not to compete with the franchisor or
franchisees of the franchisor. 124
Moreover, as a condition of renewal of the franchise, a franchise agreement may
require that the franchisee meet the then current requirements for franchises
and that the franchisee execute a new agreement incorporating the then
current terms and fees for new franchises. 125
In deciding what renewal provisions Manitoba should adopt, it is important to
remember that California contains the most complete renewal regulation. In
doing so, it provides sufficient protection to franchisees facing the prospect of
renewing a franchise agreement. However, if Manitoba were to adopt this
provision, a few additions should be made. Manitoba's legislation should mimic
122
Ibid. at §20025(£}.
123
Ill. Comp. Stat. § 705/20.
124
Iowa Code §523H.8.1.
125
Ibid. at §523.H.8.2.

Iowa and allow non renewal only where good cause exists. This will ensure that
franchisors will not capriciously refuse to renew franchise agreements.
Moreover, the provision allowing a franchisor the right of non renewal upon
withdrawing from distributing its products in a certain area should be qualified
by a provision forbidding the franchisor from re entering the same area for a
reasonable time. This time may range from six months to one year.
Neither the common law nor current legislation deal with situations where a
franchisee wishes to renew the agreement but at a different location. This may
occur in situations where the franchisee believes in the franchise, but the
location has proven unfavorable. Manitoba legislation should address such
situations by allowing franchisees the right to renew the agreement in such
instances. However, this right should be limited to a certain distance from the
original location. Doing so will allow the franchisor to expand the franchise
while still allowing current franchisees to run successful operations.
In conclusion, Manitoba should include a renewal section for the following
reasons. First, granting the franchisee a six month notice period allows him/her
the opportunity to make post-franchise arrangements. Second, if the parties
agree not to renew, the franchise agreement should be allowed to expire. Third,
if the franchisor is withdrawing operations from a particular area, he should not
be forced to stay by a franchisee, when the former has no desire to do so.
However, the franchisor should be required to compensate the franchisee for
the loss suffered through the denial to renew. Thus, Manitoba should include a
renewal provision demanding six months notice of non renewal, as well as
allowing for non renewal when it is mutually agreed upon and when the
franchisor is withdrawing from the particular service area.
iii.Transfers
The franchisee will typically be restricted in its ability to transfer its rights and
obligations because the franchisor's grant of rights is based on factors that are
personal to the franchisee. The franchisee's ability to secure a mortgage or
encumber, transfer or assign its rights and obligations under the franchise
agreement will usually be subject to having obtained the franchisor's prior
consent. 126 The issue at hand concerns whether Manitoba should adopt
provisions regulating the transfer of a franchise by the franchisee to a transferee.
Introducing legislation may be useful to prevent franchisors from refusing
franchisees the ability to transfer the franchise by rejecting all possible
candidates. However, since terms of transfer are often included in franchise
agreements, the duty of fair dealing will require the franchisor to act in good
faith and in accordance with reasonable commercial standards when
considering the possibility of a transfer. Therefore, a franchisee will be protected
126
Zaid, supra note 67 at 19.

120 Underneath the Golden Boy
if the franchisor unreasonably rejects all potential transferees. As such, there is
no reason to include a provision requiring that a franchisor not act capriciously
in assessing a transfer when the duty of fair dealing already imposes such a duty.
Although Iowa boasts an extensive transfer provision, detailing the process in
full, it lacks the extensive duty of good faith demanding such a duty in the
exercise of rights under the agreement. Thus, whereas Iowa needs transfer
provisions recause of the limited duty of good faith, once it adopts the more
extensive duty, Manitoba will not. Consequently, Manitoba should not adopt
transfer provisions.
iv.Sale of Franchise by Franchisee
The issue under this heading arises out of the following series of events.
Typically, if a franchisee sells his franchise and assigns that agreement and/or
sublease to the purchaser, the original franchisee remains liable for all
obligations contained in the agreements. This is a typical provision of
commercial leases. However, some agreements contain further obligations,
providing that if the purchaser subsequently renews the agreements for another
term, the original franchisee continues to be liable for all of the purchaser's
obligations under the renewed agreements, despite having had no input into
their terms. It was suggested to the Manitoba Law Reform Commission that
franchise legislation provide that, in this situation, the obligations of the
franchisee should not extend beyond the terms of the original agreements and
any renewals signed by that franchisee. 127
In order to understand this issue better, it is necessary to consider the steps
involved in a transfer of a franchise or sublease. Usually, if a franchisee sells his
franchise, the franchisor will make the final decision with regard to the new
party's suitability. If the franchisor does not approve of a potential franchisee,
the franchise will not be sold. Once it is sold, the new franchisee will often be
required to complete training and pay a transfer fee. 128
Forcing a former franchisee to remain liable under a contract they are not a
party to is counterintuitive. Since the franchisor has approved of the new
franchisee, and the former franchisee has had no part in drafting the new
agreement, there is no reason why the former franchisee should remain
attached to a subsequent contract. Thus, Manitoba should correct this unfair
practice. In doing so, the following requirements ought to be included in a
provision: (1) the franchisor must approve of the incoming franchisee, only
rejecting potential franchisees with good cause; (2) upon transfer of a franchise,
the incoming franchisee should receive all adequate disclosure documents and
127
Manitoba Law Reform Commission, supra note 14 at 53.
128
Zaid, supra note 67 at 19.

training; (3) the section in a subsequent contract that aims to attach liability to
a former franchisee shall be deemed null and void.
Including such a section in Manitoba's franchise legislation would achieve
several goals. First, the franchisor will be able to ensure that the proposed
transferee meets the standards of the fran chisor for new franchisees to preserve
the goodwill and image of the entire franchise system. 129 Second, the incoming
party will be in the same position and possess the same knowledge as the
outgoing party. Last, the former franchisee will not be held liable under the new
contract, upon approval of the new franchisee by the franchisor.
D. Franchise Regulatory Body
The latest possible development to franchise legislation in Ontario has emerged
in the same context as did the idea to create franchise legislation. As was the
case in the 1990s, where media attention to 887574 Ontario Inc. v. Pizza Pizza
Ltd. 130 drew the public's focus to the need for franchise legislation, a new series
of cases is currently directing Ontario's franchise community to consider
introducing franchise regulators. The Toronto Star has recently focused on the 3
for 1 Pizza &Wings litigation as the basis for proposing the appointment of some
kind of franchise regulator for the province. 131 The question facing Manitoba is
the same. In introducing franchise legislation, should Manitoba implement a
franchise regulatory body
Although a regulatory office could be structured in a number of ways, 132 its
functions would not vary. A regulator would review the quality of disclosure
given to franchisees, provide an inexpensive system to resolve disputes, rules to
govern contractual relationships and penalties for breaking franchise law. 133 Ben
Hanuka, chairman of the joint subcommittee on franchising for the Ontario Bar
Association, supports the introduction of a regulatory body. He argues that
some franchisors do not give out proper disclosure, and franchisees who have
already invested a life's savings are having to spend large sums of money to
enforce their rights under franchise law. He further states:
[W}e should upgrade the teeth of the statute, and bring in a regulatory body to deal
with the situation where there is an utter breach of providing a disclosure
129
Ibid. at 190.
130
Supra note 18.
131
132
133
Peter Macrae Dillon, "Ontario Franchise Developments in 2005: Welcome to the 'Tween
Years," (Paper Presented to The Six Minute Business Lawyer, The Law Society of Upper
Canada June 2006) online: Siskinds Resources, Articles of Interest at 1.
Manitoba Law Reform Commission, supra note 14 at 54.
James Daw, "Regulator Could Help Franchise Feuds: Province Awaiting Report form
Committee," The Toronto Star, (16 March 2006), online: Toronto Star Online
.

122 Underneath the Golden Boy
document.[ ...] People should not be forced to locate a franchise lawyer and litigate
this, but should have the benefit of a regulatory body. 134
Such a tribunal would save franchisees millions of dollars in legal fees, 135
allowing them to pursue their rights even after being abused by unscrupulous
franchisors. A regulator should not only go after rogue franchisors, requiring
them to post a bond to compensate potential victims and ensuring access to
justice, but it should also protect compliant franchisors from rogue
franchisees. 136 Such a body would not be unique to Canada, as the United
States has already implemented it through the Federal Trade Commission.
The United States Federal Trade Commission (FTC)s a federal agency with
power to regulate interstate commerce, investigate business activities and issue
enforcement orders, regulates federal franchise law in the United States. 137 The
FTC may commence an enforcement action against a franchisor if an
investigation determines that the franchisor has not complied with an FTC
Rule. The enforcement action sought or commenced by the FTC can either be
administrative, wherein the FTC may negotiate an order or a consent decree in
which the franchisor will be enjoined from certain actions, or the enforcement
action may be judicial, wherein the FTC commences a lawsuit against the
franchisor for their breach or non compliance in a court of law. Penalties for
non compliance are serious and may include the impounding of company assets,
cease and desist orders, injunctions, and mandated rescission or restitution for
injured franchisees. 138
Complementing the FTC, all states have incorporated, in one form or another,
consumer fraud or deceptive trade practice acts, commonly referred to as "Little
FTC Acts., These little FTC Acts independently create a private cause of
action, wherein a violation of the FTC Act will give rise to m independent
cause of action in state law. 139 If Manitoba chooses to instate a regulatory body,
the FTC model would certainly be one to follow. Since franchisors are not
required to register with the FTC and the FTC does not review or approve of
the initial disclosure documents, 140 the regulatory body would not play an
invasive or cumbersome role in the purchase process. Furthermore, franchisors
coming to Manitoba from the United States, already accustomed to such a
system, would not see it as a deterrent from establishing franchises in the
province.
134
Ibid.
135
Ibid.
136
Ibid.
137
So, supra note 71 at 86.
138
Ibid. at 94.
139
Ibid.
140
Manitoba Law Reform Commission, .supra note 14 at 55.

Although implementing a regulatory body would give more ('teeth" to any
franchise legislation, several lawyers, primarily those representing franchisors,
oppose such a change. Joseph Adler, an Ontario based lawyer, argues that such
cumbersome laws will only dissuade honest franchisors from conducting
business in that province and increase the cost of doing business for franchisors
and franchises. 141 Mr. Dillon, who also opposes such a body, blames the amount
of media attention the 3 for 1 Pizza cases have received. He states:
When one considers the number of franchises operating in the province [of Ontario]
at any time, it should not come as a surprise that a certain number of systems will
operate below the accepted community standard in the enforcement and performance
of their franchise rights and obligations. 141
Mr. Dillon argues that instead of introducing a regulator, it should be
franchisees' responsibility to inform themselves and become acquainted with all
disclosure documents prior to purchasing a franchise, in order to avoid being
abused. 143 A franchisee may become informed by using the large variety of
resources made available by the CFA, 114 the Ministry of Government
Services, 145 at or a number of franchise magazines and publications that would
empower a franchise prospect to avoid many of the situations in which these
people find themselves. After all, an individual must be expected to take some
responsibility for his own welfare. Mr. Dillon then adds that the direct costs of
administering such a regime, and the indirect cost to the industry sector as a
whole of being subject to further regulation are incalculable. He closes by
pointing out that Alberta abandoned its regulatory system after 24 years in favor
of a presale disclosure regime. 146 At this point it is important to note that in
1992 Manitoba's Legislature refused to adopt franchise legislation based on
Alberta's old model.
Last, Richard Cunningham, president of the CFA in 2006, opposes the
establishment of such a body on the grounds that there is no need for
regulators. Instead, he suggests that franchisees should inform themselves
properly or consult specialists in franchise law before entering into a deal. 147
Consequently, the CFA offers workshops to its members, such as the "Franchise
141
Daw, supra note 133.
142
Dillon, supra note 131.
143
Ibid. at 2.
144
Canadian Franchise Association, "Events Education," online: Canadian Franchise
Association .
145
Government of Ontario, "Ministry of Government Services.'' online: Government of
Ontario .
146
Ibid.
147
Daw, supra note 133.

124 Underneath the Golden Boy
Excellence Series: Franchisee Training Program,, hoping to educate franchisees
entering or already in the business. 148
The first matter to be decided is not what type of a regulatory body Manitoba
needs, but if it needs one. First, Manitoba cannot follow Ontario's argument for
adopting such a body because the same problems have not arisen in the former
due to its smaller size. Whereas in Ontario several franchisees have suffered at
the hands of 3 for 1 Pizza & Wings, there has only been one such case in
Manitoba. 149 Therefore, if there is a need for a regulator in Manitoba, it is
certainly not as imminent as in Ontario.
Second, Manitoba has not had the chance to determine what effect franchise
legislation will have on the franchise community. Given its unique size, perhaps
the issue of improper disclosure will also occur on a relatively small scale and
thus be solved more easily than in Ontario. It may be wise to wait until after
franchise legislation is introduced to assess the true need of a regulator in
Manitoba. Thus, the necessity for a regulator has yet to arise in Manitoba.
Although Manitoba may not need a regulator, it does not mean that the
situation should be ignored until so much abuse takes place that one is needed.
To avoid such a situation, the provincial government may want to prepare an
instructional pamphlet directing franchisees to different resources they can
employ to become better informed prior to purchasing a franchise. This would
be very similar to the CFA's approach of providing its members with the
opportunity to educate themselves. It would then become a franchisor's
responsibility to attach the pamphlet to the disclosure documents. In doing so,
Manitoba would be following the advice of those who oppose the introduction
of a regulatory body while still leaving the possibility of introducing one if need
be.
Overall, it is too premature for Manitoba to adopt a regulatory body to overlook
franchise disclosure. Instead, it should be the Province's aim to educate
franchisees to make well,informed decisions, allowing them to detect
franchisors whose intentions may be ill conceived.
E. Alternative Dispute Resolution
In the franchise industry in particular, the use of Alternative Dispute
Resolution ("ADR") is growing in marked popularity. From a franchisor's
perspective, this is due to the disclosure requirements of franchise legislation,
which requires franchisors to provide details concerning litigation commenced
against them, or pending litigation against them. A disclosure document that
148
Canadian Franchise Association, "Upcoming Events by Region," online: Already in
Franchising, Events Education < http://www.cfa.ca/Page.aspxURL=EventsEducation.
html>.
149
See Paul, supra note 12; Turenne, supra note 12.

contains numerous lawsuits commenced against the franchisor may dissuade
prospective franchisees from acquiring the franchise. Consequently, franchisors
have commenced to utilize mandatory arbitration or ADR clauses in their
franchise agreements, mandating that disputes must first be resolved through
ADR instead of through litigation, with the goal of having a smaller number of
disputes to disclose. 150 In doing so, the franchise may appear more appealing to a
prospective franchisee.
From a franchisee's perspective, ADR offers a less expensive means of dispute
resolution than litigation, removing barriers associated to justice such as cost,
location and duration. 151 For instance, although the length of mediation varies
with the complexity of the dispute, mediation of a typical franchise dispute may
take 10 15 hours and involve two or three sessions. 152 ADR will also allow a
franchisee to avoid the combative nature of litigation, fostering the preservation
of commercial relationships while parties attempt to resolve a dispute. 153
Furthermore, the franchise relationship presents some particular aspects which
make it critical that the courts have special tools to deal effectively with their
disputes. 154 Some of the concerns that franchisors and franchisees have to
address when a dispute arises between them include:
• It is very difficult for all parties to continue working together on a daily
basis while pursuing a court case between them;
• In many cases, a franchisee who decides to sue his franchisor is not, at
that time, in a good financial position;
• Where the amounts paid to franchisors by the franchisee are the only, or
main, source of income, franchisors have found themselves in
problematic positions toward their franchisees by reason of the slowness
of the court system; and
• Another problem encountered by franchisors and franchisees when
disputes arise is the uncertainty in regard of their contractual
relationship during the time when litigation has taken place, most
specifically in the event where the franchisor has terminated the
agreement by reason of one or several defaults committed by the
150
So, supra note 71 at 266.
151
Ibid.at 261.
152
International Institute for Conflict Prevention and Resolution (CPR), "National Franchise
Mediation Program: A dispute Resolution Process for Franchising," online:
at 4.
153
So, supra note 71 at 264.
154
Jean H. Gagnon, 11 Some Considerations Regarding the Judicial and NonJudicial Resolution
of Franchisors/Franchisees Disputes," (1 April 2003), online: Jean H. Gagnon Consulting
Services at 7.

126 Underneath the Golden Boy
franchisee while the franchisee pleads that these defaults are non..
existent, are not sufficient to justify the termination of the franchise
agreement or that the franchisor has improperly terminated same.
These examples demonstrate the need to provide for particular mechanisms and
means in order to deal with issues encountered in franchisor/franchisee
disputes. 155
Due to the importance of ADR to both franchisors and franchisees, it is
necessary to determine how Manitoba will address the subject in its franchise
legislation. The questions facing Manitoba with regard to ADR are twofold.
First, what should be disclosed to the franchisee in pre..contract documents
Second, should ADR be mandatory Prior to addressing either issue, it may be
helpful to consider how the various legislated Canadian jurisdictions and the
UFA deal with ADR.
1. Dispute Resolution Provisions in Canada and the ULCC
i.Ontario
Ontario addresses the issue of ADR in s. 5 of the Regulations Made Under the
Arthur Wishart Act (Franchise Disclosure), 2000. 156 The section requires that
where a franchisor will use an internal or external ADR process, a disclosure
document shall include a description of the mediation or other ADR process
and the circumstances when the process may be invoked. Furthermore, as per s.
5(2), every disclosure document shall state:
Mediation is a voluntary process to resolve disputes with the assistance of an
independent third party. Any party may propose mediation or other dispute resolution
process in regard to a dispute under the franchise agreement, and the process may be
used to resolve the dispute if agreed by all parties.
In other words, Ontario requires a franchisor who chooses to use ADR to
disclose all elements to the franchisee in the disclosure document. Franchise
legislation in Manitoba should adopt a similar provision to ensure that
franchisees are aware of what action a franchisor may or may not pursue.
In Toronto Truck Centre Ltd. v. Volvo Trucks Canada Inc./ 57 an agreement
included a dispute resolution process that provided for binding mediation of any
dispute, including a dispute for termination of the agreement. The
manufacturer purported to terminate the agreement without notice, and the
dealer applied for an interlocutory order compelling the manufacturer to submit
to mediation and to continue the dealership until completion of the mediation.
The court held that the order should be granted, since the dear intent of the
155
Ibid.at 7-12.
156
O.REG 581/00.
157
(1998), 163 D.L.R. (4h) 740 (Ont. Ct. Gen. Div).

agreement was that disputes should be submitted to the dispute resolution
process. 158 This is a clear example of the necessity to disclose what, if any, ADR
methods will be pursued.
In Ellis v. Subway Franchise Systems of Canada Ltd., 159 the franchise agreement
contained a clause stating that any claim arising out of the agreement would be
settled by arbitration in accordance with American Arbitration Association
rules at a hearing in Connecticut. After the franchisee failed to cure alleged
defaults, the franchisor filed a demand for arbitration. The franchisee brought
an application for stay of proceedings on the grounds that the arbitration clause
in the Franchise Agreement was unenforceable on the basis that it was
unconscionable. The court, finding no evidence of fraud, duress or inequality of
bargaining power, upheld the clause and arbitration proceeded. Had the
franchisee not been difficult, the dispute could have been resolved promptly
and economically.
ii. New Brunswick
A unique feature of New Erunswick's proposed Franchises Act, Bill 32, is the
ability of one party to a franchise agreement to deliver a notice to the other
party requiring that a dispute be mediated. Although the proposed legislation
permits one party to a franchise agreement to require that the other party to
enter into mediation, the proposed legislation confirms that this procedure does
not preclude either party from taking other steps in relation to the dispute. 160
Bill 32 thus allows any party to a franchise agreement who has a dispute with
the other party to deliver a notice of dispute setting out the nature of the
dispute and its desired outcome. The parties must then attempt to resolve the
dispute within 15 days after delivery of the notice of dispute. If the parties fail to
resolve the issue, any party to the dispute may then deliver a notice to mediate
within 30 days after delivery of the notice of dispute but not before the expiry of
the 15 days for resolving the dispute. Section 8(6) of the bill addresses the issue
of confidentiality by stating that no person shall disclose or be compelled to
disclose in any proceeding before a court, tribunal or arbitrator any information
acquired, any opinion disclosed or any document, offer or admission made in
anticipation of, during or in connection with the mediation of a dispute under
this section. Section 8(7) restricts 8(6) by stating that no confidentiality will
apply to anything that the parties agree in writing may be disclosed, an
agreement to mediate, a document respecting the cost of mediation, a
158
Zaid, supra note 67 at 339.
159
(2000), B.L.R. (3d) 55.
160
Blaire Rebane, Karen Carteri & James M. Bond, 11 Recent Developments in Franchise Law,"
(Paper presented to the Western Franchise Summit, 2007) online: Lang Michener LLP
Publications, Articles at 4. -

128 Underneath the Golden Boy
settlement agreement made in resolution of all or some of the issues in dispute
or any information that does not directly or indirectly identify the parties or the
dispute and that is disclosed for research or statistical purposes.
iii. Prince Edward Island & Alberta
Schedule I, Part Ill, s. 16 of P.E.I.'s Franchises Act Regulations 161 requires a
franchisor to disclose a description of any restrictions or requirements imposed
by the franchise agreement with respect to arbitration, mediation, or other
ADR process, including any requirements relating to the location or venue of
such a process.
In contrast to all other legislated jurisdictions in Canada, Alberta has yet to
incorporate an ADR provision.
iv. ULCC
In contrast to all existing Canadian franchise legislation, s. 8 of the UFA
contains the most extensive description of a dispute resolution process to be
adopted by parties to a franchise agreement. It is important to note, however,
that, when passed, New Brunswick's Franchises Act will closely resemble the
UFA, the only difference being that the UFA does not contain a provision
stating that the delivery of a notice of dispute or notice to mediate does not
preclude a party to a franchise agreement from taking any other measure in
relation to the subject matter of the dispute. 162
In composing such provisions, the ULCC considered at great length whether
franchise disputes would be resolved more advantageously through a form of
ADR. Recognizing that in certain provinces the rules of practice in civil
proceedings mandate a form of pre#trial mediation, the Committee determined
that it would be beneficial to provide for mediation to be invoked by any party
to a franchise agreement. 163 In support of mediation, the ULCC states:
The Committee believes based on its own experiences and those brought to the
attention of the Committee that party initiated mediation will be of significant benefit
to resolve franchise disputes prior to the commencement of, as well as after the
commencement of, litigation proceedings. 164
Where the UFA differs even from New Brunswick's Bill 32 is in its regulations.
In dealing with the issue of mediation, rather than including further provisions
161
R.S.P.E.I. 1988, Chapter F14.1.
162
Bill 32, Franchises Act, lu Sess., 56th Leg., New Brunswick, 2007, s. 8(10) (received first
reading on 23 February 2007) .
163
Uniform Law Conference of Canada, supra note 73 at 22.
161
Ibid.

in the regulations, the ULCC created mediation specific regulation. 165 These
Regulations establish general rules for appointment of a mediator and for
mediation as well as specific rules for pre litigation mediation and post--litigation
mediation. Some of the topics covered include:
• Pre.-mediation conferences;
• Exchange of information;
• Costs of mediation;
• Timing of mediation;
• Time limits on mediation; and
• Defaults.
These Regulations apply to the mediation of a dispute that is initiated by notice
to mediate delivered before or after a legal proceeding or arbitration in respect
of the dispute has been commenced. In essence the proposed mediation process
is mandatory. It is elective on the part of either party that wishes to mediate, so
long as the parties have attempted to resolve the dispute. Once the election to
mediate has been made by one party, it becomes mandatory on the other. 166
It is clear that the ULCC has created the most complete provisions with regard
to mediation. If a province were to adopt the UFA's Mediation Regulations, all
parties to a franchise would know what to expect if mediation is chosen as a
dispute resolution method. It is important to note, however, that the UFA
regulations only apply to mediation. This is key because, although mediation
may be quite effective in the context of franchising, the parties must share a
genuine desire to resolve the dispute promptly in ·an equitable manner. 167
Otherwise, any attempts at mediation will be futile.
2. What Should Manitoba Do
The first question under this heading is whether Manitoba should address the
prospect of mediation or ADR in its franchise legislation. An ADR provision
would require a franchisor to disclose to the franchisee if there are any ADR
methods that will be employed to resolve a dispute and, if so, to provide further
details. Since it might be important for a prospective franchisee to be properly
informed of the ways by which the franchisor resolves its agreements and
165
Uniform Law Conference of Canada, Regulation Made under the Uniform Franchises Act
Mediation, online: Selected Uniform Statutes . -
166
167
Larry Weinberg & Peter Henein, "Annual Franchise Law: Legislative Update,n (Paper
presented to the .5h Annual Franchise Law Conference, 2005) [OBA Continuing Legal
Education: Toronto, 2005] at 6; online: Publications by Cassels Brock Lawyers - Lawrence
M. Weinberg at 7.
CPR, supra note 152 at 2.

130 Undern ath the Golden Boy
disputes with franchisees, 168 franchise legislation in Manitoba should
incorporate a;dispute resolution provision.
In doing so, Manitoba should adopt a different approach than the ULCC and
focus on both mediation and arbitration. Although the former is a useful tool
for franchise dispute resolution, franchise legislation should also address an
ADR method that does not rely on a party's willingness to participate for
success. Franchisors may have more resources to pursue litigation than
franchisees and may thus not cooperate throughout the mediation process.
Therefore, a binding method of resolving disputes, such as arbitration, will be
necessary.
Ontario a1d ·P.E.I. have adopted dispute resolution provisions that focus on
what must be disclosed, whereas New Brunswick, by following the UFA, has
adopted dispute resolution provisions that outline the process to be followed.
Manitoba should adopt a provision similar to Ontario and P.E.I. and not New
Brunswick, as the latter forces the parties to mediate, even when they may not
have mutually agreed to do so. Therefore, Manitoba's provision should not
dictate what process ought to be followed, instead only stating what must be
disclosed. ·
Attempting to preserve clarity, Manitoba's provision should require more detail
than both Ontario and P.E.I.'s. Whereas s. 5(1) of Ontario's franchise
regulations orily requires a description of the mediation or ADR process, Part
III, s. 16 of P.E.I.'s regulations adds the disclosure of any requirements relating
to the location or venue of such a process. Although P.E.I. was on the right
track by requiring more detailed disclosure, it still maintains Ontario's
vagueness. Thus, Manitoba should adopt more detailed provisions, allowing a
franchisee to know exactly what will take place in the event of a dispute.
If a franchisor chooses to resolve matters through mediation or arbitration,
Manitoba franchise legislation should require that all elements should be
outlined in the disclosure document. For example, an arbitration provision
should explain the methods for selecting an arbitrator, governing rules for
arbitration, special characteristics or experience of the arbitrator, costs of
arbitration, governing law of arbitration, venue of arbitration, and
confidentiality. 169
In contrast, a' mediation provision must cover elements such as the matters
accepted for mediationj a requirement that mediation is to proceed prior to the
matter being brought before a court, other tribunal or arbitrator; the mechanics
168
Gagnon, supra note 154 at 13.
169
Joseph Adler & Frank Zaid, "Drafting Franchise Agreements in the 2l't Century,'' {Paper
Presented to the Ontario Bar Association's Third Annual Franchise Law Conference:
Franchising in a New World of Disclosure, 2003), [OBA Continuing legal Education:
Toronto, 2003] at 26.

for appointing the mediator; place of mediation; special experience factors for
the mediator; confidentiality; costs and expenses of mediation; inability to
resolve the matter; and procedures for mediation.t 70 Manitoba's provision
should still adopt the open ended requirement that a general description be
provided, while also enforcing a non exhaustive list of requirements, to
encourage a franchisor to disclose certain details that the franchisee should
know and are not required by the provision.
Overall, Manitoba should incorporate dispute resolution provisions that require
franchisors to disclose what method of ADR they will employ in case of a
dispute, together with two lists of what must be disclosed in the case where
mediation or arbitration are the ADR methods of choice.
3. Should Manitoba Adopt a Mandatory ADR Process
While primarily a voluntary process, the use of ADR can be mandatory in
certain instances. As a result, even parties that want to litigate, who do not
wish to mediate, or arbitrate a dispute, may be required by law to use ADR
methods prior to having their cases heard in a court of law.m To date, two
Canadian provinces, British Columbia and Ontario, have introduced some form
of mandatory pre... trial mediation into the civil court process, meaning that
mediation is or can be required after an action has been commenced, but before
it reaches trial. 172
Adopting a mandatory mediation process for franchise disputes would have
both positive and negative aspects. One of the advantages of mediation is that
it is less adversarial than arbitration, and therefore, less disruptive of business
relationships. Furthermore, since there are other options available if mediation
should fail, entering into a mediation process is essentially without risk. 173 The
International Institute for Conflict Prevention and Resolution C'CPR") supports
the use of mediation to resolve franchise disputes:
In fact, failure is the exception. [...] with the assistance of a skillful mediator, parties
to a great variety of business disputes have succeeded in bridging wide gaps in their
positions and often in developing creative, mutually advantageous business solutions.
However, CPR dearly states that the principal pre condition to mediation is
that the parties share a genuine desire to resolve the dispute promptly in an
equitable manner. 174 Mediation will fail if the parties are not willing to partake
in the process and resolve the dispute. Consequently, forcing parties to mediate
170
Ibid. at 25.
171
So, supra note 71 at 263.
172
Peter Snell & Larry Weinberg, eds., "Fundamentals of Franchising- Canada," (Forum on
Franchising, American Bar Association, 2005) at 327.
173
CPR, supra note 152 at 2.
174
Ibid.

132 Underneath the Golden Boy
through a mandatory mediation program may very well be a waste of time and
money in such instances. A mandatory mediation program should therefore not
be adopted in Manitoba.
A mandatory arbitration scheme lacks many of the disadvantages of mandatory
mediation. Since arbitration is a binding method of solving disputes, it means
that, once agreed upon, it will resolve the dispute between the parties, and
absent some specific circumstance, the parties will have no further recourse or
appeal rights after a decision is reached. 175 However, even many supporters of
ADR fear the ramifications of mandatory arbitration. Jean H. Gagnon, Vice.-
President of the Alternative Dispute Resolution Section of the Quebec Division
of the Canadian Bar Association and member of the Mediation and ADR
Committee of the Quebec Bar, argues that it is too delicate and dangerous to,
by law, force the parties to a franchise dispute to resort to arbitration or any
other ADR process. 176
When considering arbitration as a mandatory means of conflict resolution, it is
necessary to realize that a dispute resolved through arbitration can be as costly
in terms of fees and costs as a case going before a court. Furthermore, if one of
the parties is litigious in nature or is drawn to arbitration ainst its will,
arbitration can also be a slow process which may take months and, sometimes,
years before a final decision is reached and enforced. 177 Therefore, a mandatory
arbitration scheme would also fail to provide a desired alternative method to
litigation.
In conclusion, Manitoba . should adopt neither mandatory mediation nor
mandatory arbitration and should only introduce provisions dealing with a
franchisor's disclosure requirements with regard to what ADR means it will
adopt when a dispute arises.
This concludes the list of issues for consultation suggested by the Manitoba Law
Reform Commission in the Consultation Paper on Franchise Legislation.
F. Additional Suggestions
1. Exclusions on Oral Representations During the Franchise Sale Process
In order to prevent a franchisor abusing a franchisee by making oral
representations that will not be enforced, Manitoba should follow the UFA,
P.E.I.'s Act and New Brunswick's Bill and incorporate an exclusion for oral
arrangements. Section 2(3) of the UFA, the Arthur Wishart Act (Franchise
75
So, supra note 71 at 261.
176
Gagnon, supra note 154 at 13.
177
Jean H. Gagnon, "There Must be a Better Way to Resolve Franchise Disputes!" (2006),
online: Jean H. Gagnon Consulting Services at 2.
1

Disclosure)2000, P.E.I!sFranchises Act, and s. 2(4) of New Brunswick's Bill32
states:
This Act does not apply to [...] a relationship or arrangement arising out of an oral
agreement where there is no writing that evidences any material term or aspect of the
relationship or arrangement.
This will in turn deter franchisees from entering into oral arrangements with
franchisors and require that all promises be made in writing. Furthermore, since
Manitoba has repealed its Statute of Frauds 178 dictating that a written
agreement will override any alleged oral contract, 179 it is necessary to state this
through franchise legislation.
In conclusion, Manitoba ought to include Ontario's exclusion on oral
representations made during the sale process to encourage potential franchisees
to require franchisors to reduce all agreements to writing.
2. Cooling--Off Period
All Canadian franchise legislation allows for a 14 day period between the
issuance of disclosure documents and the signing by the prospective franchisee
of any agreement relating to the franchise or the payment of any consideration
relating to the franchise. In addition to adopting such a provision, Manitoba
should consider incorporating a cooling off period.
Although the two-week period grants franchisees ample time to acquaint
themselves with all disclosure documents, a cooling off period would allow
them a final interlude during which to assess the purchase. Considering that, for
the most part, franchise agreements last as long as 10 years and may be difficult
to transfer, a potential franchisee will be investing a significant amount of time
and money. Thus, once the agreement is signed, a seven day period would allow
them to analyze the purchase with a "cooler head" and cancel it if so desired. In
doing so, neither party would suffer a loss.
To incorporate such a provision, Manitoba could emulate s 13 of Australia's
Trade Practices Act 1974. The section states that a franchisee may terminate an
agreement (being either a franchise agreement or an agreement to enter into a
franchise agreement) within seven days after the earlier of entering into the
agreement or making any payment under the agreement. A cooling-off period
will not be granted to a franchisee renewing, extending, or transferring an
existing franchise agreement. In addition, if the franchisee decides to terminate
the agreement during the cooling.-off period, the franchisor must, within 14
days, return all payments made by the franchisee to the franchisor under the
agreement. However, the franchisor may deduct from this amount paid the
178
179
An Act to Repeal The Statute of Frauds, C.C.S.M. c. Fl58, enacted as: R.S.M. 1987, c. F158.
Frank Zaid, 'Franchising and The Law," online: Online Publications .

134 Underneath the Golden Boy
franchisor's reasonable expenses if the expenses or their method of calculation
have been set out in the agreement. 180
As an alternative, Manitoba could follow s. 8 of The Condominium .Act. 181 The
Act allows a prospective purchaser who has signed an agreement to purchase to
cancel the agreement within 48 hours. The prospective franchisee would be
able to cancel the agreement by personally giving a written notice of
cancellation to the franchisor or franchisor's agent or by sending a written
notice of cancellation by registered mail, fax or any other method, except e-
mail, that provides proof that it was sent, to the address or fax number given by
the franchisor or the franchisor's agent for this purpose.
3. Independent Legal Advice (ILA)
The power and information imbalance separating franchisees from franchisors
could be reduced, in addition to providing disclosure documents, by introducing
an independent legal advice clause in Manitoba's franchise legislation. Ideally,
all franchisees should be forced to consult a lawyer to achieve insight into the
franchise agreement that they may not be able to attain on their own due to the
document's complexity and length. Furthermore, such a clause would reduce
litigation between parties to a franchise, as the franchisee will be well aware of
all that the franchise agreement entails. Thus, Manitoba should seriously
consider addressing the matter through legislation.
Currently, there is no legislation in existence in Manitoba that enforces seeking
independent legal advice. However, the Reverse Mortgage Regulation encourages
doing so. 182 The disclosure form provided under the Regulation's schedule in
section L pertains to seeking advice. It states:
It is strongly recommended that you talk to your lawyer about this reverse mortgage
before you sign the mortgage or any other document that requires you to sign the
mortgage. 183
Because reverse mortgages are complicated, and many borrowers lack the
background and expertise to evaluate both the suitability of the mortgage for
them and the terms of the mortgage offered to them, independent advice and
counseling should be sought by most prospective borrowers. 184 This argument
could also be applied to franchising.
180
Australia, Trade Practices (Industry Codes - Franchising) Regulations 1998, supra note 50 at s.
13.
181
R.S.M. 1987, c. Cl70.
182
Man. Reg. 65/2002.
183
Ibid.
184
"Manitoba Law Reform Commission Review of the Garnishment Act," Commonwealth
Law Bulletin, (2006) 32:1 103-139 online: at 137.

In contrast to all Canadian franchise legislation, Australia's legislation requires
that a franchisee attain independent legal advice prior to entering into a
franchise agreement. Under s. 11(2) of the Trade Practices Act 1974, a
franchisor must receive the following from the prospective franchisee prior to
entering into the franchise agreement:
(a) Signed statements, that the prospective franchisee has been given advice about the
proposed franchise agreement or franchise business, by any of: (i) an independent legal
adviser; (ii) an independent business adviser; (iii) an independent accountant; or
(b) For each kind of statement not received under paragraph (a), a signed statement by
the prospective franchisee that the prospective franchisee: (i) has been given that kind
of advice about the proposed franchise agreement or franchised business; or {ii) has
been told that that kind of advice should be sought but has decided not to seek it. 185
The subsequent section qualifies subsection 2 by stating that its does not apply
to the renewal or extension of a franchise agreement and that it does not
prevent that franchisor from requiring any or all of the statements mentioned in
paragraph 2(a). 186
In formulating its own independent legal advice provision, Manitoba should
follow Australia's example. A similar provision to the Reverse Mortgage
Regulation would not go far enough to ensure that franchisees seek legal advice.
In contrast, Australia's Act, by forcing franchisees to either seek advice or
waive it, ensures that franchisees will seriously consider the possibility of
consulting an expert. In adopting the Australian clause, Manitoba should limit
the qualified experts for consultation requirement to lawyers and accountants,
since these are the two parties who are best suited to provide the necessary
advice.
In addition, Manitoba should introduce a cooling..off period (in case the general
cooling..off period is not adopted) that applies only to those franchisees that
waived attaining professional consultation. Doing so will allow more time for
franchisees left with the task of understanding the franchise agreement on their
own to actually do so.
Overall, Manitoba should introduce a provision forcing franchisees to seek
independent legal advice prior to signing the franchise agreement to ensure that
they make a well..informed decision. This will counter the power imbalance
between franchisors and franchisees as well as reducing litigation arising out of
misunderstandings. This requirement will, however, be limited by a waiver, with
which franchisees will be able to forego attaining independent legal advice.
Furthermore, a cooling off period should be granted to those franchisees who
185
Australia, Trade Practices (Industry Codes Franchising) Regulations 1998, supra note 50 at s.
11(2).
186
Ibid. at s. 11(3) .

136 Underneath the Golden Boy
waive the independent legal advice clause, granting them an extended period of
time to become acquainted with the agreement.
4. Layout of Disclosure Document
The main goal of adopting franchise legislation in Manitoba should be to help
franchisees make well--informed decisions when purchasing a franchise.
Requiring franchisors to provide clear and accurate disclosure documents is
necessary to accomplish this worthy goal. To ensure greater ease in reading a
disclosure document, Manitoba's franchise legislation should require franchisors
to provide a table of contents, indicating all headings and subheadings, together
with page numbers.
Australia's Trade Practices Act 1974 incorporates very thorough layout
requirements. For instance, under s. 7, the Act requires franchisors to include a
table of contents, as well as indicating the page number on which each item
begins. 187 In addition, Annexures .1 and 2 describe the specific manner in which
the disclosure document must be laid out. For instance, Annexure 1 sets out
what the first page of every disclosure document must include: the franchisor's
name, signature of the franchisor, officer or authorized agent of the franchisor
and the preparation date of the disclosure document. 188
Manitoba should only follow Australia's requirement to include a table of
contents. Requiring franchisors to adopt a specific template may be too onerous
for some franchisors coming from foreign jurisdictions and employing a wrap..
around. Furthermore, including a table of contents will suffice to make the
disclosure document clear to navigate, accomplishing the goal of franchise
legislation. Thus, Manitoba's franchise legislation should incorporate the
requirement that disclosure documents include a table of contents with page
numbers.
IV. CONCLUSION
Following a failed attempt to introduce franchise legislation in 1992, Manitoba
once again faces the opportunity to adopt a franchise act. Unlike then,
franchise legislation has become widely accepted in Canada and is currently in
force in Alberta, Ontario and P.E.I.; New Brunswick has recently completed the
first reading of its own franchise bill. The need for franchise legislation in
Manitoba is clear. With a business population comprised predominantly of
franchisees rather than franchisors, the former must be protected from abuse at
the hands of the latter without unduly impending fair commercial practices. In
187
Australia, Trade Practices (Industry Codes- Franchising) Regulations 1998, supra note 50 at s.
7.
188
Ibid. at Annexure 1, s. 1.1.

adopting franchise legislation, Manitoba ought to consider other Acts in force
in Canada together with the Uniform Law Conference of Canada's UFA,
molding them into one to form the most progressive version. This is an
opportunity Manitoba cannot afford to pass.

Appendix
Response to Consultation Paper on Franchise Law-Executive Summary
1. Should the province of Manitoba adopt
the ULCC approach to disclosure of
"material facts" or the approach under
current provincial regulations, which
provides less detail
• The ULCC the disclosure of •
all material (defined as any
information, about the business,
operations, capital or control of the
franchisor or franchisor's associate or
about the franchise or the franchise
system that would reasonably be
expected to have a significant effect on
the value or price of the franchise to be
granted or the decision to acquire the
franchise). The Regulations
complement the disclosure
requirement of material facts with the
most extensive list of required
infonnation.
• Arthur Wishart Act (Franchise
Disclosure), 2000, also requires
disclosure of all material facts. The
only difference lies in the Regulations.
This standard is regarded as the
strictest in the world of franchise law.
• Alberta and P.E.l.'s Franchise
Regulation require the disclosure of all
material facts but makes the
requirement more lenient by allowing
"substantial compliance."
Since the goal of franchise legislation is
to aid franchisees, the standard that
provides the most information should be
followed. Thus, the ULCC model should
be adopted. However, to avoid
introducing the strictest franchise
legislation in the world, Manitoba
should a "substantial compliance"
provision. This will grant a franchisor
some room to err while sti1l providing
the franchisee with sufficient information
to make an informed purchase.

Manitoba should require a tran.clh,iS!lJ;1 2;gj
disclose franchise re ;ourc s onrl·····

3. Should Manitoba allow franchisors to
use wrap,around disclosure
documents
• Alberta and P.E.I.'s Regulations both
allow for the use of foreign disclosure
requirements so long as supplementary
information to comply with province is
provided in a "wrap."
• Manitoba should adopt such a provision
so long as it also requires all documents
to be clear and concise.
• When a wrap is used, the franchisor
should be required to include an index
to allow the franchisee to browse
through the document with ease.

5. Exemptions:
• Is the ability to implement
exemptions from the
requirements of legislation or
regulations appropriate
• Should a franchisor be exempt
from disclosing financial
statements
• General exemptions from franchise
regulation exempt a party selling or
renewing a franchise in certain
circumstances from having to provide
disclosure documents. A party may be
exempt from providing disclosure
documents where the recipient of the
franchise is familiar with the
franchise either because, inter alia,
have been officers or directors of that
franchise or they already are
franchisees to the same franchisor.
• Manitoba should adopt exemption
provisions primarily because every other
regulated province has done so. In doing
so, Alberta's section should be emulated
as it is more extensive and franchisor/ee
friendly.
• Manitoba should adopt Ontario's
financial statements exemption while
allowing potential franchisees the
alternative of requesting franchisors
with said documents only after signing
confidentiality agreements. Doing so will
encourage transparency in the system.

In all jurisdictions, the duty of fair
dealing extends to all parties to' a
franchise agreement whereas the right
of association is o ly intended to
;p tect fr chisees: ,
• The right to associate s4ould be .
protected fo!l_owing the Ontario and
P.E.I, Acts.
• Manitoba should adopt termmation
prqvisions, (9llowing Iowa's legis.latipn.
Manitoba should.folloCalifornia's :, ..
. ren al dau e. It should . il} lud a
.··-liroJ:i'othe ti e a franchisor vst be
o hid -.f the a ein case of ithdrawal
.- nd ! fr nchi es to re!letb >
ag eement in different loc tiOl}
:-Since thduty of fair dealing already
co ers·thissue, no transfer proyisions_ '
; ' '
arnecessary. :
or

1-'1--'1-
Underneath the uolden boy
10. Additional Suggestions:
• Exclusions on Oral
Representations during the
franchise sale process
• Cooling ff Period
• Independent Legal Advice
(ILA)
• Layout for Disclosure
Document
• Section 2(3) of the Ontario and P.E.I.
Acts, the UFA and s. 2(4) ofNew
Brunswick's Bill 32 contain such an
exclusion.
• The exclusion should be adopted,
forcing parties to a franchise to reduce
all promises to writing.
• A cooling off period should be adopted
to allow franchisees to make the
important purchase decision with a cool
mind, following Australia's franchise
legislation.
• Manitoba should require franchisees to
seek ILA prior to signing the franchise
agreement. In addition, a waiver
provision should be included.
• To increase understanding of disclosure
documents, Manitoba should require
franchisors to include a table of contents
with page numbers.

Bill210:
The Highway Traffic Amendment Act
(Bicycle Helmets)
LANA JACKSON
I. INTRODUCTION
}.J
cording to current Manitoba law, it is illegal to ride a bicycle on the
sidewalk. Under s. 145 (8) of The Highway Traffic Act, all cyclists;
ncluding children, are to ride only on public roads and highways with
the other traffic, unless the rear diameter of the bicycle wheel is less than
410 mm. Common sense would seem to dictate that when sharing the roads
with motor vehicles, a reasonable bicyclist would wear a helmet. Nevertheless,
in Manitoba this is not the case. Despite a concerted government effort
promoting bike helmet usage over the past 15 years, only 28% of Manitobans
wear bike helmets. 1 In an attempt to substantially increase the use of bicycle
helmets in Manitoba, Dr. Jon Gerrard, the MLA for River Heights, introduced
legislation to the Manitoba Legislature with ltivate Members' Bill 210, The
Highway Traffic Amendment Act (Bicycle Helmets). Essentially, Bill 210 required
anyone riding a bicycle on a highway or bicycle path to wear a proper protective
helmet.
The following paper will examine the circumstances surrounding the Manitoba
Legislature's consideration of Bill 210. Areas that will be explored are: the
discussion of the bill in the Legislature, the debate surrounding whether or not
mandatory bicycle helmet legislation is necessary, where Manitoba currently sits
in terms of its need and support of helmet legislation contrasted with those who
oppose it, how other provinces have dealt with this issue, and why Bill 210
ultimately did not pass in the Manitoba Legislature.
Manitoba, Legislative Assembly, Debates and Proceedings, VoL LVI No. 538 (26 May 2005)
at 3008-3009.

146 Underneath the Golden Boy
II. BACKGROUND
Bill210, The Highway Traffic Amendment Act (Bicycle Helmets), was sponsored
by Dr. Gerrard, and seconded by Kevin Lamoureux, the MLA for Inkster. It was
designed as an amendment to the Highway Traffic Act, and was intended to be
inserted into s. 145(4) of the Act. 2 Section 145(4) requires that anyone riding a
power assisted bicycle must wear a helmet. Bill210 was designed to expand the
existing law that required helmet use for motorcycles and power assisted
bicycles, to also cover self propelled bicycles.
At the time of drafting Bill 210, Dr. Gerrard was a member of the All Party
Task Force on Children 1 s Health Issues. The task force was made up of four
NDP MLAs, two Conservative MLAs, and one Liberal MLA, Dr. Gerrard. The
task force traveled around Manitoba and received presentations from many
groups on issues affecting children's health. One of the areas examined was
injury prevention-and more specifically whether or not bicycle legislation was
necessary. After looking at all of the information presented to the task force,
Dr. Gerrard decided to introduce legislation regarding bike helmets before the
task force finished its report, as he felt that action taken prior to the summer
break would have a greater impact on the lives of Manitobans. 3
A. First Reading
Bill210 had its first reading on 26 May 2005, during which Dr. Gerrard made a
brief statement regarding the bill. Dr. Gerrard's statement had two main points.
The first was that education alone had achieved only a 28% use of bike helmets
in Manitoba. The second was that there was evidence that legislating the use of
helmets could reduce the number and severity of bicycle injuries requiring
hospitalization. 4 No one else spoke on the Bill, and the House adopted it at this
stage.
B. Second Reading
The second reading of Bill210 occurred on 2 June 2005. Dr. Gerrard was the
only member of the House to speak on the Bill. Dr. Gerrard began his
discussion of Bill 210 by stating that the bill was about saving lives and saving
money. 5 Dr. Gerrard argued that in provinces with mandatory bike helmet laws,
Bill 210, The Highway Traffic Amendment Act (Bicycle HelmetS), 3d Sess., 38th Leg.,
Manitoba, 2005.
Interview of Dr. Jon Gerrard, the MLA for River Heights, by Lana Jackson (1 December
2005).
Supra note 1 at 3008-3009.
Manitoba, Legislative Assembly, Debates and Proceedings, VoL LVI No. 57A (2 June 2005)
at 3201-3203.

the rate of helmet usage was higher, and the rate of hospitalization and death
due to injury from bike accidents was lower. 6 Dr. Gerrard highlighted the
importance of injury prevention, and that by wearing a helmet, a bicyclist
significantly reduces their chances of head injury; which in turn saves our
health care system money, as head injuries are very costly to treat.
Dr. Gerrard concluded his comments by mentioning that bike helmet legislation
was similar to seatbelt legislation. While he acknowledged some of the concerns
that Bill 210 amounted to government interference in the lives of its citizens,
Dr. Gerrard reminded the House that once seatbelt legislation had been passed,
wearing a seatbelt became normal behaviour among the public, and mandatory
bike helmet legislation would follow in the same manner. Following the
introduction by Dr. Jon Gerrard, debate on the bill was adjourned by Greg
Dewar, the MLA for Selkirk, and seconded by Ms. Irvin,Ross, the MLA for Fort
Garry. The house adopted the motion to adjourn debate on the bill, presented
by Mr. Greg Dewar, and Bill 210 never went any further in the legislative
process. Dr. Gerrard's initiative to legislate the use of bike helmets failed. The
following section will examine the positive and negative aspects of bike helmet
legislation.
III. THE PRos AND CONS OF BIKE HELMET LEGISLATION
One of the obvious benefits of wearing a bike helmet is injury prevention. The
Canadian Paediatric Society, in a 2005 report, Are We Doing Enough A Status
Report on Canadian Public Policy and Child and Youth Health, reported that
bicycle injuries are the third leading cause of injury for children 10-14 years old,
and that bike helmets reduce the risk of injury by 88%. 7 Furthermore, Safe Kids
Canada, in its June 2005 Position Statement on Bicycle Helmet Legislation
stated that:
Despite studying many factors, only the presence of a bicycle helmet law in the child's
province was significantly associated with a lower rate of hospitalization for head injury
among young cyclists. 8
It should be noted that while it seems like a logical conclusion that bike helmet
legislation reduces injuries, a study in Calgary found just the opposite. A study
reported in the Calgary Sun in July of 2003 actually found that injuries from
bike accidents were up from 5% prior to the legislation to 10% following the
Ibid.
Canadian Paediatric Society, Status Report, "Are We Doing Enough"(2005), online:
Canadian Paediatric Society .
Safe Kids Canada, "Position Statement on Bike Helmet Legislation", online: Sick Kids
Foundation .

148 Underneath the Golden Boy
enactment of legislation. 9 However, the article went on to clarify that the
increase was described by those conducting the study as "nothing more than
interesting", and the increase was in fact due to a change in how the data was
coded, and was not a result of the new legislation. 10 The connection is clear:
wearing a helmet significantly reduces injuries, and mandatory bike helmet
legislation is a proper means to ensure helmet usage.
While the majority of studies focused on the impact of bike helmet usage and
children under the age of 18, the effects of wearing a helmet are also beneficial
to adults. While adults may not be as reckless as children when riding and are
therefore unlikely to have as many self caused accidents, adults are more likely
than children to ride on busier streets with other traffic and therefore put
themselves in an equally serious potential injury situation. One can hardly argue
the very real possibility of head injury when a person on a bicycle is involved in
an accident with a car. The reality that adults are just as likely to be injured on
bicycles is evident in the fact that next to the age category of 5-14 years of age,
the group with the highest number of reported injuries, the age group of 25-34,
receives the second highest rate of injuries due to bicycle,related accidents. 11
Requiring adults to comply with the law will also increase the success of the
legislation, due to its inclusive nature and the fact that it is easy to understand
and apply. The legislation will in turn have a wider impact, and will likely be
more widely known, as it applies to more than a limited portion of the public. 12
Furthermore, adults set a positive example by wearing a bike helmet. A Toronto
study shows that a child is 100 times more likely to wear a helmet if their parent
wears a helmet. 13
Coinciding with the reduction of injuries following bike helmet legislation is the
economic benefit to society as a whole. One can hardly turn on a television set
or pick up a newspaper without hearing of some problem with our health care
system. Long lineups at emergency rooms, extended waits for tests, and an
overall overcrowding of facilities are very real problems facing our health care
system. In a publicly funded health care system, it is important to reduce
unnecessary costs. It falls upon the government to reduce health care costs and
keep citizens healthy by any practical means available. 14 Mandatory bike helmet
David Sands, "Helmet Law sta.ts called surprise" Sun Media (12 July 2003), online:
CALGARYSUN.COM.
10
Ibid.
11
Winnipeg Regional Health Authority, "Position Statement on Cycling Safety" online:
WHRA at 3.
12
Safe Kids Canada, "Facts and Myths about Helmet Legislation" online: Sick Kids
Foundation .
13
Ibid.
14 Supra note 3.

legislation is a cost effective way of reducing overall costs. The cost of a bike
helmet ranges from $20 to $35, while the savings to the health care system
could be quite significant. Safe Kids Canada estimates that every dollar invested
in helmet saves about $30 in societal costs. 15 When Dr. Gerrard spoke on Bill
210, he stated that one child's serious head injury would cost the health care
system between $1-1.5 million. 16
The number one injury prevented by the use of bike helmets is head injuries.
Head injuries are very costly to the health care system and can lead to lifelong
difficulties and problems. 17 Treatment of a head injury usually involves a
hospital stay, rehabilitation and support services. A serious head injury can also
result in long-term brain damage of the individual, which reduces one's ability
to contribute meaningfully to society.
Overall, bike helmet legislation is effective and efficient. Its practical appeal has
even found support in the majority of Canadians. Public opinion is in favour of
helmet legislation. Safe Kids Canada conducted a poll in Alberta, Quebec and
Manitoba, and found that approximately 75% of those surveyed supported the
legislation. 18
Those in opposition to bike helmet legislation have various concerns, the
strongest being that bike helmet legislation is another example of the
government becoming too involved in the daily lives of its citizens. As W. F.
Deedes once observed: "You cannot legislate or regulate for every conceivable
accident or mishap which may befall the human race.n 19 The following area will
first look at a few minor arguments in opposition to bike helmet legislation and
then focus on the main arguments.
It has been argued that forcing helmet usage on the public will essentially result
in a backlash against bike riding. The backlash will reduce the number of people
receiving the benefits of cycling, and overall the health of the pubic would
deteriorate. These concerns were proven in a study conducted in Australia. 20
However, a study conducted in the Toronto area showed that mandatory
helmet legislation did not have a significant negative impact on child cycling in
the community. 21 Also, in Ontario and British Columbia, studies have shown
15
Supra note 8.
16
Supra note 5 at 3201-3203.
17
Supra note 3.
18
Ibid.
19
Avery Burdett, "No to Ontario's Helmet Legislationn Ottawa Citizen (August 1995),
online: Ottawa Citizen .
20
Ibid.
21
Alison K. Macpherson, Patricia C. Parkin & Teresa M. To, 11 Mandatory helmet legislation
and children's exposure to cycling" (2001) 7 Injury Prevention 228, online:

150 Underneath the Golden Boy
that post legislation, cycling in general seems to be on the rise in both areas of
transportation and recreation. 21
A further criticism is that the dangers of cycling are exaggerated and that
mandatory helmet legislation is simply an alliance of "headline seeking
politicians and a manipulative safety industry, all with aid of a far too uncritical
news media. 1123 In the article, No to Ontario's Helmet Legislation, author Avery
Burdett discusses possible myths surrounding the value of a helmet. A small
piece of plastic on the head will not protect all of the other parts of the body
that may be injured in a cycling accident. Many other injuries will not be
prevented by the use of a helmet, and Mr. Burdett suggests that a better
solution would be to educate children on bike safety by introducing it into the
school curriculum. Furthermore, he cites that in Holland, where helmets are
not mandatory, cycling is almost at par with car use, and reminds that it's better
to cycle than not cycle at all. 24 Overall, he argues that cycling reduces pollution,
traffic congestion, and is beneficial to one's health and should be left alone by
legislators. 25
The main concern of those opposed to bike helmet legislation that it is an
infringement of personal choice. It is true that it does remove an individual's
choice regarding their own personal safety. In Ian Hunes review of Joel
Feinberg's book, The Moral Limits of the Criminal Law: Harm To Self, Mr. Hunt
recognizes that we are:
[C]hallenged to reconcile, somehow, our legitimate concern with diminishing overall
harm with the threatened proliferation of criminal prohibitions enforcing a 'Spartan like
regime' of imposed prudence. 26
Mr. Feinberg essentially is in favour of a "soft paternalistic'' approach to
legislative involvement in the lives of citizens. This approach would allow a
person, in the absence of abnormal impairment, to act on his own preferences,
even if unreasonable, and that the only way to allow for "paternalisticn
legislation is if the legislation is needed to protect others from the harm. 27 It is
interesting though, that even Mr. Feinberg is in agreement that if an individual
is allowed to make unreasonable choices, they ought to be held accountable for
their choices and suggests that instead of legislation, a government should insist
&FIRSTINDEX=1O&sortspec= relevance&resourcetype=1,2,3,4,1O&journalcode=injury
prev>.
22
Supra note 8.
23
Supra note 19.
24
Ibid.
25
Ibid.
26
Ian Hunt, "Risking One's Life: 'Soft Paternalism 1
Liberalism", (1995) Can. J.L. &Jur. 8. 311 at para. 1.
27
Ibid.
and Feinberg's Account of Legal

on appropriate insurance, so that those who take the risk will bear the cost of
their conduct. 28
Requiring private insurance is simply not an option in Canada's current
Medicare system. All Canadians bear the costs of an individual's unreasonable
choice not to wear a bike helmet. Bicycle helmet legislation is needed to protect
not only the individual cyclist from self-harm, but more importantly to protect
Canadian taxpayers from the unnecessary costs associated with bicycle injuries.
As stated by Jeffery Miller in his article, A Bicycle Built for Hanging Up, the '"Do
your own thing' [idea] has lD perverted our idea of democracy that it seems it
[is] always acceptable." 29 However, personal choice does not always override the
common good. There is no absolute right in Canada that is without an
exception. Even the Canadian Charter of Rights and Freedoms has appropriate
checks and balances. Wearing a bike helmet has been proven to significantly
reduce costly head injuries. It is not a measure that might make a difference; it
is a strategy that has had proven results.
Another argument in opposition to bike helmet legislation is that it is
discriminatory to lower income families. The cost of purchasing a helmet may
be too high for a family with limited means, and will therefore not allow all
citizens to enjoy the health benefits of cycling. However, the cost of helmets is
related to demand. In other provinces that have introduced mandatory
legislation, bike helmet sales have jumped dramatically following legislation,
and price, accordingly, went down. 3 ° Furthermore, it is very likely that if a
family is in need of assistance, charitable organizations will be able to collect
used helmets to distribute to those who need them.
IV.A CLOSER LOOK AT CONCERNS IN MANITOBA
In February 2003, IMPACT presented a study entitled, Bicycle Injuries in
Manitoba: Time for Legislation 31 Some statistics reported in the study were that
every year in Manitoba, on average, 100 children under the age of 20 sustained
bicycle-related injuries; and that between the years of 1990-1999 one child
28
Ibid.
29
Jeffery Miller, "Bicycle Built for Hanging Up" The Lawyers Weekly. Vol. 23, No. 18, (12
September 2003) (QL).
30
Supra note 3.
31
Dr. Lynne Warda & Gemma Briggs, "Bicycle Injuries in Manitoba: Time for Legislation"
IMPACT (February 2003) online: Health Sciences Centre . IMPACT is the injury prevention centre of Children's Hospital in
Winnipeg, Manitoba, Canada. IMPACT was formed in 1995 to reduce the number of
childhood and adolescent injuries in Manitoba. Online: .

152 Underneath the Golden Boy
even died in a fatal bicycle--related accident. 32 Furthermore, head injury was the
most common reason for hospital admissions, accounting for 2/3 of all
admissions. 33 The study found that in 1996 only 21% of children cyclists wore
helmets, and that overall helmet use by cyclists resulted in a reduction of
serious head injury by 85%, reduced brain injury by 88%, and reduced injuries
to upper and mid--face by 65%. 34 While the report mentioned one study in
which parental involvement was found to be the strongest tactic to encourage
helmet use, the majority of studies cited in the report indicated that education
and parental involvement had little influence on helmet usage. 35 IMPACT's
findings demonstrated a significant number of serious bicycle--related injuries
could have been prevented had helmets been worn, and in conclusion the
report stated the need for helmet legislation in Manitoba. 36
IMPACT's report also presented counter--arguments regarding the importance
of bike helmet legislation. The possible negative effects of bike helmet
legislation were presented in three broad categories. The first was that
mandatory helmet requirements would lead to risk compensation. Essentially,
because people had more protection, they would ultimately undertake riskier
behaviour. The report did not think this was a relevant concern as there was no
research to support the assertion. 37
The second concern was that mandatory legislation would infringe on personal
freedom. There is always some public opposition to legislation that will have an
effect on personal choice. Even if the infringement on personal choice will have
a positive outcome such as improved health and economic benefits, many will
still oppose it, as we saw with the public outcry associated with mandated
seatbelt use, and the smoking ban in public places.
The final area of concern was the possible reduction in bicycle riding following
mandatory helmet legislation. An Australian report completed in 1996 showed
a decline in bicycle riding following helmet legislation. 38 However, the IMPACT
report concluded that regarding this concern, a contradictory finding was
obtained in an Ontario Study in 1999. A reduction of cyclists due to mandatory
helmet legislation has yet to be found in any Canadian province that has
enacted bike helmet legislation.
32
Warda & Briggs, ibid.
33
Ibid.
34
Ibid.
35
Ibid.
36
Ibid.
37
Ibid.
38 Colin F. Clarke, "Social damage and accident effects of the bicycle helmet law," online:
Mandatory Bicycle Helmet Law in Western Australia .

IMPACT conducted another s:udy in 1997 observing helmet use in Manitoba
and found that while helmet use is only at 23% for urban citizens; helmet use is
even lower in rural areas at 9%. 39 While a mass media campaign may be
somewhat successful in an urban area, it is far less likely to have any impact in a
small rural community. When helmet use is at such a low rat, the amount of
taxpayer dollars that will have to be spent to increase helmet usage using an
education/mass media campaign is astronomically high and simply impractical. 40
The Winnipeg Regional Health Authority's Position Statement on Cycling Safety
stated that it supports all age provincial legislation regarding bike helmet
usage. 41 The WRHA found that between 1992 and 2001 there were 1 427
cycling injury hospital admissions in the Winnipeg area, and that on average,
every death resulting from a cycling related accident took 39 potential years
from the victim's life. 42 With regard to the concern that helmet legislation
would discourage those in lower...income groups to cycle, the position statement
announced that the WRHA would be willing to work with partners to increase
the accessibility to helmets where cost might prevent citizens from complying
with the law. 43
One of the more colourful opinions in opposition to bike helmet legislation in
Manitoba was addressed in the Winnipeg Sun on 31 May 2005, in Frank
Landry's article entitled, "We Don,t Need Bicycle Helmet Law". 44 In his article,
Mr. Landry cites the problem with over-regulation of the government in our
day to day lives. Some examples he provides are minimum drink pricing,
mandatory public auto insurance, and business closures at 6 p.m. on Sunday.
Mr. Landry goes on to explain that the key to bike helmet usage is personal
responsibility. Parents should police their own kids b make sure they wear
helmets, and that adults should be able to decide for themselves. 45
While this idea sounds good, it should be remembered that many adults would
actually choose not to wear a seatbelt if it wasn't mandatory. The idea of self
choice is okay if it doesn't impact on anyone else. However, in the case of not
39
Sande Harlos et al., "Urban and rural patterns of bicycle helmet use: Factors predicting
usage." (1999) 5 Injury Prevention 183, online: IP ONLINE at 183.
40
Supra note 3.
41
Supra note 11 at Z.
42
Ibid.
43
Ibid.
44
Frank Landry, "We Don 1 t Need Bicycle Helmet Lawn Winnipeg Sun (31 May ZOOS).
45
Ibid.

154 Underneath the Golden Boy
wearing a bike helmet, the public doesn't get to choose whether or not someone
is treated in the hospital for an injury sustained from a bike accident.
In conclusion, Mr. Landry reminds u; that joggers, who use the same paths as
bicyclists, do not have to wear helmets. While he may have had a somewhat
coherent argument up to this point, this conclusion simply makes no sense.
Joggers do not run down the street in the same lanes as motor vehicles, nor do
they travel at quick speeds, and they are doser to the ground and much less
likely to become projectile objects in the event of an accident.
Overall, the numbers speak for themselves; experience worldwide has shown
that education alone, at best, will result in a mere 50% usage of bike helmets. 46
More specifically, in Manitoba, a study conducted by IMPACT in April of 2005
found that helmet use remained low despite several decades of helmet
promotion in numerous educational campaigns and school based
interventions. 47 Although there may be a slight increase in helmet use following
mass media campaigns, the effects of the campaigns are short.-lived because
there is nothing left behind once the posters and advertisements are removed. 48
Simply stated, education alone does not work.
While some of the concerns against bike helmet legislation are valid, less than
50% usage is not good enough. Mandatory bike helmet legislation has a definite
success rate and clear data that supports it. 49 The infringement upon personal
choice is minor, and is more than offset by the need to reduce costs in our
health care system. Unlike other health issues that have numerous contributing
factors that are difficult to prevent, wearing a helmet is a simple and effective
way to minimise the most serious bicycle related injuries, and reduce costs in
our already over.-burdened health care system.
V.BIKE HELMET LEGISLATION IN OTiffiR PROVINCES
Currently, the majority of Canadian provinces have enacted some form of
bicycle helmet legislation. The following chart will show when each province
enacted their legislation and the effects of each. The information on the chart
was gathered from the Safe Kids Canada website and is current as of June
2005. 50
46
Supra note 8.
47
Dr. Lynne WardaGemma Briggs & Justin Rivard, "Advocating for Helmet Legislation:
Using Observational Data as an Advocacy Tool" IMPACT (April 2005) online: Health
Sciences Centre .
48
John C. Leblanc, Tricia L. Beattie & Christopher Culligan, "Effect of legislation on the use
ofbicycle helmets" (2002) 166:5 Canadian Medical Association ]ournal592, online: CMAJ
.
49
Supra note 3.
50
Supra note 8.

Province/f erritory
Legislation
British Columbia - all ages
effective 3 September 1996
- $29nne
Alberta - under 18
effective 1 May 2001
Saskatchewan
Manitoba
- $69nne
- no legislation
- Yorkton is the only municipality with a by-law, $5 fine
no legislation
-
- a person over the age of 16 may transport a child under the
age of 6 on a bicycle if the child is wearing a helmet;
effective June 2004, maximum fine $2 000
- operators of power-assisted bicycles over the age of 14 must
wear a helmet; effective June 2004, maximum fine $2 000
(no one under 14 years of age is allowed to operate a power-
assisted bicycle)
Ontario
- under 18 (originally all-ages, but scaled back after it passed)
effective 1 October 1995
- $80nne
Quebec no legislation
some municipal regions have by -laws
New Brunswick
all ages
effective 15 December 1995
- $21 fine
Nova Scotia - all ages
effective 1 July 1997
- $25 fine (min.)
Prince Edward Island - all ages
- effective 5 July 2003
$50-$100 fine
Newfoundland
- no legislation
- some municipal by-laws
Yukon
Northwest Territories
- no legislation
- City of Whitehorse has by -law for all ages (covers most of
population in Yukon)
- no legislation
- some municipal by laws
Nunavut - no legislation
VI. PROVINCIAL LEGISLATION IN PRACTICE
For the majority of Canadian provinces and municipalities with bike helmet
legislation, enforcement has been varied. Generally, parents are responsible for
ensuring compliance with children less than 16 years of age. 51 Law enforcement
51
Supra note 8.

156 Underneath the Golden Boy
has focused on educating and the law has been used as an incentive to
encourage the purchase and use of helmets. 52 With regard to the enforcement
of fines, they are usually waived when the offender purchases a helmet. 53
Following the enactment of legislation, bicycle related injuries also typically
decrease. In Ontario, following the enactment of legislation, a study from the
Canadian Institute for Health Information found that hospitalizations due to
cycling were down 13% and that head injuries were down 26% in the same
period. 54
The increase of helmet use in provinces with legislation has been dramatic. In
Nova Scotia, prior to legislation, helmet usage was at 36%. Following
legislation, usage jumped to 84%. 55 A study conducted by the Canadian Medical
Association in Halifax found that the number of injured cyclists with head
injuries was halved in the year following enactment of bicycle helmet
legislation. 56 Furthermore, the reduction of injuries was due solely to the helmet
law, as were no mass media campaigns promoting helmet use following
the 1997 enactment of legislation. In Alberta, a study conducted in Edmonton
following the introduction of legislation found that there was a substantial post..
legislation increase in helmet use, but only in the ages affected by the law. 57
In British Columbia, helmet usage by males increased from 44% to 68%
following legislation, and for women, usage went from 50% to 76% following
enactment. 58 A study conducted by the University of North Carolina that
observed British Columbia's legislation from 1996-1999 determined that,
overall, the legislation had a levelling effect; in that areas where use was lowest
prior to the legislation, use increased more dramatically following the legislation
than in areas where use was higher to begin with. 59
Specifics of the University of North Carolina study indicated that helmet use on
commuter nutes rose from 60% to 75%, but more importantly, residential
neighbourhood use rose from 39% to 72%, while recreational helmet use rose
52
Ibid.
53
Ibid.
54
Bicycle Helmet Safety Institute, "Helmet Laws for Bicycle Riders," online: BHSI
.
55
Warda & Briggs, supra note 31 at Legislation heading.
56
Supra note 48 at 4.
57
Brent Hagel, Jacques Rizkallah & Andrea Lamy, "Changes in cyclist helmet wearing
following the introduction of helmet legislation in Alberta for those under age 18" (August
2004), online: Alberta Children's Hospital at 47.
58
Warda & Briggs, supra note 31 at Legislation heading.
59
University of North Carolina Highway Safety Research Center, "British Columbia Helmet
Study" online: University of North Carolina Highway Safety Research Centre
at 18-19.

from 48% to 74%. 60 Essentially, the bicycle helmet legislation encouraged
people to use helmets in the segments of population that were least likely to
wear a helmet prior to the legislation. This finding is proof that for certain areas
of the population, education is not always sufficient to convince citizens to wear
a helmet. As observed in other Canadian provinces, the rnly way to achieve
helmet use beyond the 50% range is to legislate. 61 There is conclusive evidence
that rates of compliance regarding helmet use are around 80%-90% in
provinces with mandatory helmet legislation.
VII. WHYDIDN'TBILL210PASS
Clearly, Bill210 did not pass due to lack of government knowledge of the issue.
In 2003, following completion of its study, IMPACT compiled data and
presented it to the Ministers of Health and Transportation in a formal call for
legislation. 62 Also, the Manitoba Medical Association, IMPACT, and the
Manitoba College of Physicians and Surgeons have made repeated calls for
legislation. 63
Theresa Oswald, Minister for Healthy Living, announced at the start of Safe
Kids Week in June of 2005 that injury was the leading cause of childhood
hospitalization and death in the province. 64 In her press release, Ms. Oswald
acknowledged that injuries due to bicycle accidents increase significantly in the
summer; when an average of two kids per day are treated at the Children's
Hospital. 65 Dr. Sande Harlos, a member of the Safe Kids Week Planning
Committee, encourages the use of helmets by adults and children alike; citing
that a bicycle helmet reduces the risk of head injury by more than 85%. 66
The NDP government would argue that it has taken steps to encourage bike
helmet use. In the spring of 2005, an All-Party Task Force examined factors
that affect children's health, in particular the task force examined injury
prevention. At the conclusion of its examination, the task force did not
recommend mandatory legislation, instead it encouraged education. It should
be noted that the All Party Task Force finding is simply reflective of the NDP
60
Ibid.
61
Supra note 3.
62
Warda & Briggs, supra note 31 at Legislation heading.
63
Ibid.
64
65
Manitoba Healthy Living, 41 Safe Kids Week: Parents Play Key Role in Helping Children to
be Active and Stay Safe" online: Safe Kids .
Mia Rabson, Winnipeg Free Press, 11 Gerrard Backs Compulsory Bike Helmets" (27 May
2005).
66
Supra note 64.

158 Underneath the Golden Boy
and Conservative position on bike helmet legislation, and indicative of the lack
of personal opinion in our extremely rigid political system which puts towing the
party line above all else.
The NDP solution that followed in the summer of 2005 could be considered a
strong public education campaign that focused on increasing bicycle ridership
and increased helmet use, and also sought to introduce measures to help lowr
income families purchase helmets. 67 In enacting its public education campaign,
the Manitoba government failed to effectively encourage bike helmet use in the
province. It decided once again to rely on the strategy of education and
encouragement.
One might ask why a government would continually approach a problem with
the same ineffective solution year after year. The answer is simple. While the
education only strategy has proven unsuccessful time and time again, there is
one benefit to an education and encouragement campaign; it gives the
impression that the government is doing something. Even though the effects of
education campaigns are shortrlived, they don't stir up public debate, and they
are clearly visible. The NDP response to low helmet use in the province failed
to respond to clear data that legislation is most effective and failed to use
taxpayers' dollars in the most cost.-effective way possible. 68
The most likely reason that Manitoba does not yet have legislation in this area
is best summed up by Mr. Landry in his article, "We Don't Need Bicycle
Helmet Law 11
•
In his article, Mr. Landry states that despite his concerns
regarding bicycle helmet law, Dr. Gerrard's Bill 210 doesn't have much of a
chance of becoming law. The reasoning behind this assertion is that the
Minister of Transportation, Ron Lemieux, "appeared cool" to the idea, Mr.
Lemieux had expressed concerns that poorer people may not be able to afford
helmets, and questions remained over how the police would enforce the Bill,
should it pass.
It should be kept in mind that six out of 10 provinces have enacted legislation
for ,bike helmet use, and enforcement has not been found to be a problem, nor
has it taken officers away from their other '\arious duties. Furthermore, Mr.
Lemieux's own government announced in Safe Kids Week that it would
facilitate a system to aid underprivileged citizens in purchasing helmets.
Legislation that is not supported by the NDP is unlikely to get passed in
legislature. While the NDP relies on the public's negative reaction to the loss of
personal choice, one must remember that the NDP government did introduce
seatbelt legislation, amid public disapproval. According to Dr. Gerrard, some
politicians are still "old school" and lack the ability to understand how science
61
Supra note 8.
68
Supra note 3.

should be used in legislation. 69 Dr. Gerrard also stated that the same politicians
are more interested in politically manipulating data to suit their own ideas, and
in the long run, to manipulate data to our detriment. 70
Essentially, any potential arguments opposing bike helmet legislation are simply
ways to divert the public from the real issue. The Manitoba Government has
already taken partial steps to legislate in the area of helmet legislation-with its
education and mass media awareness campaigns, and the commitment of
thousands of dollars of tax payer's money to the cause-and has therefore
already acknowledged the practical and important aspects of wearing a helmet
on a bicycle. There is already existing legislation requiring helmets for power#
assisted bicycles, and legislation that requires infant children and young
passengers on bicycles to wear helmets as well. It seems unfair that thus far only
young children have been deemed to be worth protecting through mandatory
helmet legislation.
The numbers are dear in supporting mandatory bicycle helmet legislation. All
that remains is for the government to take the final step; complete the
transition once and for all with an effective, efficient solution and pass
mandatory helmet legislation.
69
Supra note 3.
70
Ibid.

And Justice for All-Bill 47, The Legal Aid
Services Society of Manitoba Amendments
Act
JUDY F. EAGLE
I. INTRODUCTION
T
he Right Honourable Beverley McLachlin, Chief Justice of the Supreme
Court of Canada, addressed the importance of maintaining the public's
confidence in our justice institutions so as not to betray the promise of a
just society. 1 To achieve this, McLachlin C.J.C. suggested that focus on three
factors in particular would be critical:
(1) ensuring the high quality of our justice system;
(2) ensuring access to our justice system; and
(3) upholding the fundamental values that underlie our legal system.
Chief Justice McLachlin further stated that: "The finest justice system in the
world is a failure if people cannot use it." 2 One of the greatest challenges in
attempting to provide fair and universal access to justice is that of providing
adequate legal aid to individuals who would have difficulty, or would otherwise
be unable to obtain legal counsel due to the costs. Government funding is
becoming inadequate for these individuals-as due to budgetary considerations,
despite serious legal problems, they are denied assistance. Other problems arise
when private practitioners refuse legal aid work due to the related economic
burden. Work performed by staff legal aid lawyers is underfunded and
unrecognized, and first in line to be affected by financial cuts. The outcomes for
many people in low income brackets will hinge upon the degree of expertise or
knowledge available to them, and upon the degree of legal access entitlement as
afforded by case law and legislation, 3 and unfortunately, many often have no
alternative but to represent themselves.
Rt. Hon. Beverley McLachlin C.].C., "Preserving Public Confidence in the Courts and
Legal Profession" (2003) 29 Man. L.J. 277 at para. 4 (QL) [emphasis added].
Ibid. at para. 18.
People between the ages of 12 and 18 have a guaranteed right to legal assistance under the
federal Youth Criminal]ustice Act, (S.C. 2002, c. I). Adults are not equally entitled, whether

162 Underneath the Golden Boy
According to Chief Justice Richard Scott of the Manitoba Court of .Appeal,
because ulawyerless litigants" 4 face huge barriers to justice, lawyers and courts
must work together to remedy the phenomenon, both to stem the rising
numbers and to assist the self represented accused. Although court clerks will
provide instructions regarding which forms to file and certain applicable rules,
they decline to offer legal advice, and rightly so, as the duties and expertise of
the position do not carry a mandate of providing legal counsel. The self
represented are at an even greater disadvantage when attempting to defend the
allegations of an offence as it is very difficult to do so when the elements of the
offence-such as causation, affirmative defences, etc.-are concepts that the
unrepresented layperson would likely have little or no knowledge of. Judges
themselves uphold the principle of fundamental justice of maintaining judicial
impartiality, yet must explain the process to the unrepresented, as completely as
time permits in the court room, without appearing to advise or steer the
accused. Judicial impartiality is as important in appearance as it is in fact. This,
however, becomes much less of a balancing act when the accused has access to
legal counsel. Governments play an undeniable role in ensuring access for all to
the legal system, however, positive words such as: ('The government will work
with provinces toward renewal of legal aid so that Canadians can have access to
adequate legal representation before the courts", 5 are empty without follow up
action and implementation.
11. THE BACKGROUND OF LEGAL AID
The institution of formal legal aid serves as the main resource for the
underprivileged and the poverty,stricken who find themselves at odds with the
by legislation or by the Canadian Charter of Rights and Freedoms, s. 7, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11,
unless certain circumstances are present. As articulated in R. v. Rowbotham, ([1992] 9 O.R.
(3d) 368}, where the accused does not qualify within provincial legal aid plans, the Charter
requires that funded counsel be provided and a court of appeal may so order per ss. 684(1),
694.1, (R.S.C. 1985, c. G46.), if the accused cannot afford it and if representation by
counsel is essential to a fair trial. The disparity in positions of the Crown and the accused
becomes too great for the court to ignore, as a layperson accused of a serious crime will
have their s. 7 Charter rights at risk and will not usually be able to make arguments clearly,
test the Crown's prosecution theory through effective cross-examination of witnesses, or
make legitimate suggestions to the court as to how the law ought to be interpreted on any
given point, (CBA Report 2002, "Making the Case...."}.
Kirk Makin, "Lawyerless Litigants Slow Wheels of Justice" The Globe and Mail (14 January
2002) Al (QL).
Canada, Privy Council Office, Speech from the Throne to Open the Second Session of the 3
Parliament of Canada (Ottawa, Information Resources, 2002), online: .

law. In principle legal aid dates back much farther than one may realize. The in
forma pauperis procedure, which was introduced in thirteenth century Europe,
ensured that the public in poverty circumstances (which included most of the
public in that era) had access to legal services when the law of the day was
poised to act upon them. This procedure became a part of Canadian law upon
Confederation, based on a British statute, An act to admit such persons as are poor
to sue in forma pauperis (7 Henry VII 1495, c.12). 6 Poor people could then
benefit from lawyers' services at no charge if necessary. This was the beginning
of pro bono legal help by lawyers and firms, and eventually, legal aid.
Incidentally, there have been many vocal advocates in recent years for the
conscious commitment of the legal community to take on pro bono and legal aid
work each and every year. 7 The provision of these services to those without
financial means is viewed by many lawyers and judges as a long;standing
professional and ethical obligation that is at the very core of the profession. 8
This professional ethos, if seriously heeded and practiced, could go a long way
to alleviating some of the problems faced by unrepresented, legally na1ve people
in the court system.
Ill. LEGAL Am IN MANITOBA
Mission Statement: Legal Aid Manitoba is committed to ensuring equal access to
justice for all Manitobans. 9
Legal aid history in Manitoba dates back to 1937. The first "legal aid" program
provided pro bono services in civil matters, and was organized in 1937 through
the Law Society of Manitoba ("LSM,) in which poor people applied to a special
committee for a certificate appointing a lawyer free of charge. 10 A "Poor Man's
Lawyers Centre" was established, also with volunteer lawyers providing advice
(nicknamed the "Thursday night club"). A decade later, LSM set up a similar
criminal legal aid program for the poor, so that in 1949, members of the Bar
were invited to join the roster, which assigned one lawyer to the magistrate's
10
Manitoba, Minister of Justice, A Review of Legal Aid in Manitoba, March 2004, online:
at 11 [I.AM Review].
Canadian Bar Association, "CBA Position on Legal Aid," online: CBA.org
.
Mr. Justice ].C. Major, "Lawyer's Obligation to Provide Legal Services, (1995) 33 Alta. L.
Rev. 719 at 722.
Legal Aid Manitoba, "Our Mission Statement" (21 April 2006), online: Legal Aid
Manitoba .
N. Larsen, 11 Legal Aid in Manitoba" in C. Harvey, ed., The Law Society of Manitoba 1877-
1977, (Winnipeg: Peguis Publishers, 1977) 158 at 161-162, ["Legal Aid in Manitoba"},
cited in supra, note 6 at 10, n. 8.

164 Underneath the Golden Boy
court each week. These initiatives by the LSM were among the first of their
kind in Canada. 11
By the 1950s and 1960s, the demand for free legal services was reaching huge
proportions, but there were not enough participating lawyers to meet the need.
Civil and criminal lawyers were taking on a higher caseload than had been
anticipated when the program was launched. For example, the number of
criminal certificates issued from 1964-1966 rose by 75%Y Pressure was exerted
from the profession for a coordinated state funded legal aid system. It should be
noted, however, that not all lawyers agreed on that point, believing that "it
would be 'unseemly' for lawyers to accept payment for legal aid work." 13
The Legal Aid Services Society of Manitoba ('Legal Aid Manitoba") was a
statutory corporation established by an act passed by unanimous vote in the
legislature in 1971. 14 The launch of Legal Aid Manitoba C'LAM") occurred in
February of 1972, with the majority of its funding from the provincial
government of the day, the New Democratic Party, while the federal
government began sharing the province's costs for criminal and civil legal aid on
a per capita basis, which covered almost 50% of the program's costs. The
program existed as a "mixed system," combining the English judicare model of
publicly paid private lawyers with the American model of community or
neighbourhood law offices staffed with legal aid lawyers. 15 The first community
law office was opened in Winnipeg in October 1972, with an all encompassing
mandate of individual client service as well as an engagement in the 'cwar on
poverty." 16 In the words of Professor Roland Penner, who was a key driving
force of the legal aid beginnings in Manitoba, "You remember, that's the war
the poor lost." 17
One of the goals at the time was to involve the poor/laypeople in the policy
management of the community law centre, to employ non,legal professionals
such as social workers, and to utilize a portion of the staff lawyer time to work
with client groups in the poor community in an activist resource capacity. In
the absence of such groups, "[TJhe poor do not organize themselves particularly
well," and the staff lawyers were to take an activist role in the organization of
1l Ibid. at 162.
12
Ibid.
13
Ibid.at 167.
14
The Legal Aid Services Society of Manitoba Act, S.M. 1971, c. 76; now the Legal Aid Manitoba
Act, C.C.S.M., c. L105.
15
Roland Penner & Arne Peltz, "The State of Legal Aid in Manitoba in 1997" (1998) 16
Windsor Y.B. Access Just. 271 at 271 (Penner and Peltz].
16
Ibid.at 272.
17
Interview of Professor Roland Penner, Constitutional Law Professor, by Judy Eagle (1
November 2005} at Faculty of Law, University of Manitoba.

such groups. 18 After the opening of the first community law office, others in
different Winnipeg locations and smaller urban centres followed.
It quickly became clear that the practice of law itself for the poor 19 was an all.-
consuming task in the centres, and that staff lawyers had neither the time nor
the required skill set to engage the community in combating issues of poverty.
Staff lawyers, therefore remained in the sphere of their training expertise, which
was to advocate in the legal arena as lawyers.
Between 1972 and 1977, LAM had employed 25 staff lawyers and 3 paralegals,
had quadrupled the number of cases handled from 12 000 to 50 000, and had
managed a budget that increased from $850 000 to $3.2 million. 20 By 1977,
more than 500 of the 1 000 lawyers in Manitoba were participating in the plan,
and there were six community law offices. In the year ending 31 March 2003,
LAM employed 131 staff, including 65 lawyers, and recorded a current budget
of $17 160 000 which handled the 22 498 legal aid certificates that were issued.
Of those certificates, private practice lawyers dealt with 59%, while LAM staff
dealt with the remaining 41%, 21 with the bulk of the cases falling into the
criminal law area. Currently, LAM operates Criminal and Family law offices in
Winnipeg along with a Public Interest Law Centre, Collaborative Law Program,
Aboriginal Law Centre and a University Law Centre which enables those who
have been refused legal aid to access law student assistance with non.-criminal
or minor criminal matters. Outside city limits, there are community law offices
in Brandon, Dauphin, The Pas and Thompson which practice mainly in
criminal and family law. 22
IV.THE LEGISLATIVE JOURNEY OF BILL 47 23
A. Overview
Bill47 was proclaimed on 10 August 2005, and although it is an amending act,
it cannot be viewed in any way as simply a piece of housekeeping legislation. As
far reaching as an originating bill, Bill47 altered and added provisions to such a
major degree, that the name of the institution itself was changed to "Legal Aid
Manitoba", and its governance and operation was altered. A board of 12
18
Ibid.; See also Penner and Peltz, supra note 15 at 16.
19
20
Note: the author intends no adverse stereotyping with the use of this word.
N. Larsen, "Seven Years with Legal Aid (1972-79): A Personal View of Some Events and
Background Literature" (1981) 11 Man. L.J. 237 at 241, cited in supra note 6 at 10, n. 6.
21
LAM Review, supra note 6 at 98, 114.
22
23
Legal Aid Manitoba, "Special Programs/' online: Legal Aid Manitoba .
BUI 47, The Legal Aid Services Society of Manitoba Amendment Act, Jd Sess., 38rh Leg.,
Manitoba, 2004 {assented to 9 December 2004, S.M. 2004, c. 50).

166 Underneath the Golden Boy
directors was replaced by a seven to nine member Management Council
established to direct the business and affairs of LAM in an efficient and cost
effective manner. The number of council members includes three non...lawyers
at a minimum, with three lawyers selected from seven nominees by the
Lieutenant Governor in Council. Duties specifically listed are financial
management, resource management, development of strategic policies, and
evaluation of legal aid quality and cost..effectiveness. A tariff review of fees paid
to private legal aid lawyers will take place at every two years, in consultation
with the newly created advisory committee. Composition of the committee is
unspecified, and it will provide advice on general or regional concerns, on needs
of those receiving legal aid, and make recommendations on matters referred by
the council. The appeal process for decisions regarding legal aid eligibility has
been streamlined, in that the executive directoes decision is now final.
The proposed provisions originally removed the applicant's choice of counsel;
however, an amendment was adopted, which required that the director at least
consider a request for counsel of choice. Applicants will also be required to
complete a written authorization allowing third parties to disclose financial
information about the applicant, for which any who make false or misleading
statements to obtain legal aid, or fail to disclose changes in an applicant's
income that may affect entitlement to legal aid, may be subject to a criminal
summary conviction offence, punishable by a fine of up to $10 000. LAM will be
required to investigate the financial resources of applicants for legal aid who are
charged with specified offences, such as a criminal organization offence, or any
other offence prescribed by regulation.
Lawyers, when dealing with a legal aid client, will be required to advise LAM
upon discovering that the client may not be eligible to receive legal aid, even
though the information may surface during solicitor--client meetings. A lawyer
employed by LAM, however, will not be found in conflict of interest with
another lawyer of LAM, even if the same case involves each of their clients.
B. Backdrop to Bill 47
Problems with legal aid and its delivery have been evident for many years,
fuelled by recurrent budget cuts within federal and provincial governments
since the 1990s. 24 At that time, private bar lawyers in northern Manitoba who
handled legal aid cases began a strike, while the Winnipeg Defence Lawyers
Association appointed a committee to consider strike action. Again, after a
decade of government decreases or freezes to funding, Manitoba's criminal
defence lawyers voted to take no new legal aid certificates until the province
24
Tom Onyshko, uManitoba lawyers upset with 25% cut in legal aid tariff' The Lawyer's
Weekly, 11:46 (10 Aprill992) (QL).

addressed the cutbacks that had been made to the system. 25 LAM had
announced a projected 2003 deficit of $1 million if the cuts were not
implemented. 26
Some exacerbating factors included the failed "mega trials" of 35 Manitoba
Warriors charged in 1998, and five Hells Angels members in 2003, which
further strained the system's budget. 27 Enraged defence lawyers filed "Fisher
applications" 28 in February 2003 for increased tariffs to properly compensate
their legal counsel in the complex trials. 29 Disaster was narrowly averted when
the board of LAM rescinded the cutbacks, the federal budget announced an
additional $1.5 million for criminal legal aid, and the provincial Justice Minister
and Attorney General Gord Mackintosh added $800 000 for legal aid family law
cases. 30
Nevertheless, by October 2003, the funding issue emerged once again, when a
criminal defence lawyer who had completed a complex and difficult murder trial
for LAM did not receive the expected remuneration at the end of the matter,
which had been so ordered by the court. Another lawyer had been ordered by
the court to continue representing the client even though legal aid had
unilaterally reduced lis fees in the case. 31 More members of the private bar
began to refuse to deal with legal aid cases. By April2004, a Statistics Canada
report on legal aid resources and caseloads revealed that private bar lawyers
were withdrawing from participating in legal aid plans in every province-a
15% decrease over a four year span. 32
All of these events culminated with Justice Minister Gord Mackintosh's request
to Assistant Deputy Minister Ron Perazzo on 28 November 2003 to:
"Undertake research and provide me with advice and recommendations on the
25
Deana Driver, "Manitoba lawyers refusing to take legal aid certificates" The Lawyer's
Weekly, VoL 22, No. 39 (21 February 2003) (QL).
26
Deana Driver, "Manitoba Bar angered at cutbacks in legal aid funding" The Lawyer's
Weekly VoL 22, No. 38 (14 February 2003) (QL).
27
"Mass prosecution," Editorial, Winnipeg Free Press (22 November 2005) Al2.
28
R. v. Fisher, (1997) S.J. No. 530 (Q.B.). In which the Saskatchewan judge trying Fisher for
murder provided guidance for other trial judges in considering whether state funding of
counsel should be ordered at rates exceeding those of the provincial legal aid program.
Note: Manitoba legal aid tariffs were the lowest in Canada at that time.
29
Supra note 25.
30
Deana Driver, "Manitoba's legal aid crisis eases as government raises funding'' The Lawyer's
Weekly Vol. 22, No. 42 (14 March 2003) (QL).
31
Deana Driver, "Battle over funding of legal aid plan heating up once more in Manitoba"
The Lawyer's Weekly Vol. 23, No. 25 (31 October 2003) (QL).
32
Cristin Schmitz, "Report confirms Bar's flight from handling legal aid cases" The Lawyer's
Weekly, VoL 23, No. 45 (2 April2004) (QL).

168 Underneath the Golden Boy
future delivery of legal services to indigent persons in Manitoba.n 33 Specifically,
the report was to examine the best way to move toward greater reliance on staff
lawyers and a corresponding service delivery model; and what legislative, policy
and organizational changes would be necessary to implement the changes. As
well, Mr. Perazzo's mandate stated that consultation with the Manitoba Bar
Association ('MBA"), Criminal Trial Lawyers Association, Legal Aid Services
Society, Law Society, and any other organizations or individuals was authorized
in the development of the report recommendations. The fmal summary report
was to be in the minister's hands by 15 March 2004. 34
To date, most of the recommendations of the 136 page report have been
legislated, except for the establishment of a separate LAM office staffed with 10
additional criminal lawyers. As will be seen, the report raised the ire of
organizations and a few individuals for various reasons.
C. Tabling of Legal Aid Manitoba Report; Introduction ofBill47
Mr. Perazzo's 134 page report, A Review of Legal Aid Manitoba/ 5 ('cLAM
Review") was tabled by the Attorney General ("AG'') in the Manitoba
Legislative Assembly on 27 May 2004, who then moved for the first reading of
Bill 47, seconded by the Minister of Finance, Mr. Greg Selinger. 36 At this time,
Justice Minister/AG Mackintosh noted that the legislative proposal gave no
right of choice of counsel for legal aid applicants, so that LAM could select staff
lawyers to conduct the defence of those accused in complex trials. Conflict of
interest was, in effect, waived for legal aid staff lawyers; legal aid would not be
available to criminal organizations; mandatory investigations into the assets of
individuals charged with certain criminal offences would apply; and the
investigative and collections powers of legal aid were strengthened as well as
focusing the governance of legal aid overall. The motion to read Bill 47 for the
first time was adopted by the Assembly.
D. Second Reading
Justice Minister Mackintosh moved for second reading of Bill 47, and that the
Bill be referred to a committee of the House on 1 June 2004, seconded by the
Minister of Education, Citizenship and Youth, Peter Bjomson. 37 He went on to
note the salient features of the bill, by mentioning other points and
33
LAM Review, supra note 6 at Appendix A.
34
Ibid.
35
LAM Review, supra note 6.
36
Manitoba Legislative Assembly, Debates and Proceedings, Vol. LV No. 45B (27 May 2004)
at 2705-2706.
1
31 Manitoba 1 Legislative Assembly, Debates and Proceedings, Vol. LV No. 47 (01 June 2004) at
2804-2807.

incorporating greater detail into his comments than when he had spoken briefly
on the bill during its introduction.
AG Mackintosh referred to private lawyers speaking publicly about withdrawal
of their services for legal aid cases, given the presence of more complex cases
and associated increased costs. He reminded the Assembly that there were
actual instances of disruption of private bar legal aid in recent years. To
maintain a stable and reliable legal service for low..income Manitobans, he
stated that Bill 47 would allow for new approaches to managing resources and a
renewed focus on the public interest. The new official name for the arms--length
corporation would be Legal Aid Manitoba, and it would operate with a
Management Council to direct its business affairs with particular attention to
service quality and cost effectiveness. An advisory committee would be
established and would be the only one of its kind in legal aid organizations
throughout Canada. It would be the vehicle to provide a formal mechanism for
stakeholder voices to be heard by the council in its policy decisions, and
consultations on proposed tariff increases would be mandatory. 38
The minister concluded his remarks by mentioning the summary conviction
offence created by Bill 47 for making a false statement in order to obtain legal
aid, and that any lawyer on a case would be obliged to advise LAM if they
discover that the client is no longer eligible to receive legal aid during the
course of legal representation.
Kevin Lamoureux, the Liberal MLA for Inkster, spoke on the bill and urged
public input at the committee stage. He noted that the ramifications of the bill
were far..reaching, and that there were issues surrounding it that needed to be
addressed, 39 such as the fact that tariff amounts for lawyers have not kept pace
with inflation. The general thought in Mr. Lamoureux's political circles is that
legal aid must be fixed, and while he supported some form of change, the
change must be just to both lawyers and the clients who rely on legal aid
services.
Mr. Lamoureux then alluded to the issue that ignited the whole examination of
legal aid-the gang issue in conjunction with the mega.-trial.w He further
remarked that there was a great deal of concern in erms of legal costs to
Manitoban taxpayers when gangs in Quebec were proved to have brought in
over $100 million in profit to their criminal organizations. 41 He also posed
concerns about the government's apparent intention to move toward staff
lawyers, thereby marginalizing the private bar's involvement in legal aid cases.
In his view, a movement toward either a purely public system or toward a
38
Ibid. at 2805.
39
Ibid.
40
Ibid.at 2806.
41
lbid.

170 Underneath the Golden Boy
subsidized private sector would not properly serve the population. Mr.
Lamoureux stated that the tariff fees must l:e reconsidered in this process, in
order to become competitive, and that the Liberal party views the legislation as
positive in general, in that it will generate some necessary discussion on the
issue. 42
When the Speaker asked if the House was ready to vote on the question of
second reading, a member indicated otherwise, whereupon Peter Dyck, the
Progressive Conservative ePC") MLA for Pembina, successfully moved that
debate be adjourned, which was seconded by John Loewen, the former PC MLA
for Fort WhyteY
Bill47 waited until8 June 2004 to be passed for second reading. 44 It was the will
of the House for the bill not to remain standing in the name of Mr. Dyck, and
the House re...entered debate. PC Gerald Hawranik, the justice critic of the
official opposition, voiced concerns such as whether or not the LAM Review of
2004 should have been commissioned at all by the Justice Minister. Mr.
Hawranik also referred to the pressure exerted on legal aid due to the Hells
Angels "mega.. trials," and with great relish, reminded the Assembly that Justice
Minister Mackintosh should simply have adopted the planks of the PC party on
the issues that were presented in Question Period during the last provincial
election. Those planks mirrored four of the five major recommendations of the
2004 LAM Review, and according to Mr. Hawranik, the Minister could have
saved the public much money by heeding the Opposition in the first place. 45
While essentially pleased with the favour shown towards the LAM Review's
recommendations, Mr. Hawranik raised concerns from defence lawyers
regarding the accuracy of the Review's numbers pertaining to the hiring of 10
staff lawyers who were forecasted to handle 280 criminal cases per year.
Economically, if 280 cases are not handled each year by each lawyer, then the
whole model would crumble, so that hiring 10 more staff lawyers becomes
pointless. Doubts of the ability to deal with that many cases were raised also, as
prosecutors themselves barely handle 210 files per year. These are Mr.
Hawranik's unverified numbers, however, and this writer admits to some
scepticism when he stated that prosecutors, "[H]ave to do all the paperwork in
the file. They have to deal with all of those issues which [are] more timeconsuming
than what a defence lawyer might handle h that particular file." 46
Yet, Mr. Hawranik finished by agreeing that 280 cases per year is achievable in
42
Ibid. at 2807.
43
Ibid.
44
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LV No. 51 (8 June 2004) at
3075-3076.
45
Ibid. at 3075.
Ibid. at 3076.

:t HC LtgUl UU ;JC I V'CtJ ;JOC LJ OJ IVIUI UIDUU Z ill HUll £CHQ l u;01; L I J:
accordance with the Perazzo report, although he was entirely unclear on how
that deduction was reached.
Finally, another concern for defence lawyers that Mr. Hawranik presented was
the removal of choice of counsel, but he pointed out that was one of the planks
in the PC campaign for the prior provincial election. "We did not believe that
an accused criminal should be allowed counsel of choice...", but that legal aid
should have that power because of public money paying for their defence. 47
(Author's note: an accused is not necessarily a criminal, nor is deemed to be a
criminal, until a full answer and defence to the charge has been mounted,
followed by the court rendering a conviction).
Dr. Jon Gerrard, the MLA for River Heights and Liberal party leader, simply
added to the record that there are some positive aspects of Bill 47, but that the
true cost effectiveness of the measure must be carefully considered, as well as
whether or not in some circumstances there would be too many conflicts
experienced by staff lawyers to be workable. 48
E. The Standing Committee on justice
Ten people, either as organization representatives or private citizens, presented
on Bill 47 to the standing committee from 6:30 to 9:33 p.m., chaired by Doug
Martindale, the NDP MLA for Burrows. 49 Thirty six pages of recorded minutes
of the committee's interactions with the presenters tell the tale of how the bill
was received and by whom, and are summarized in the following table. The
presenters alluded to further points raised in their presentation copies which
were submitted to the standing committee and the table reflects the presenters'
discussions at the committee's sitting of 18 November 2004.
47
Ibid.
48
Ibid.
49
Manitoba, Legislative Assembly, Standing Committee on Justice, Vol. LV No. 2 (18
November 2004) at 11-47.

172 Underneath the Golden Boy
Presenters
Consultation
1. Manitoba
Association of
Rights and
Liberties
(MARL)-
Ken Mandzuik;
Dir.
2. Public Interest
Law Centre
(PILC)
-Byron Williams,
Director
3. Manitoba Bar
Association
(MBA)-Veronica
Jackson, President
Elimination of
Choice of
Counsel
Solicitor/client
relationship
based on trust;
-will most
negatively
impact
Aboriginal
males in
criminal law &
females in civil
family law;
-no reason that
only the rich
allowed to
choose;
·perpetuates
the perception
that the poor
are 2m. class
citizens
Poverty:
complex issue,
absence of
dignicy, and
self-respect;
-removing
choice equals
another step
away from
inclusion;
·most LAM
clienrs are nor
gang members;
-amendment
to general rule
of choice s.14
Echoes
concerns of
MARLand
Pil.C
Consent
Financial
Disclosure
Mandatory
consent of
applicant
authorizing
3m party
breaches
righc co
privacy;
-consent
required in
bill is
overbroad;
·no limit in
bill for legal
aid discretion
in
determining
who must
disclose
-amendment
requested
that s.ll (2)
specify 3m
parties
Financial
Investigation/
Category 2
Charge
Individuals
accused of
particular
crimes singled
out for more
thorough
investigations;
-improper for
higher
standard based
on alleged
offence;
·amendment
requested to
remove
s.ll(l).
Criminal
Offence/Financial
Disclosure
"Failing to
promptly advise of
applicant's change
in finances" too
vague in wording
when creating an
offence;
-amendment
requested that
s.ll (4) specify
defined period i.e.
30 days
Elimination
LAM Lawyers'
Conflict of
Interest
Creates lower
standard for
LAM lawyers
vs. private bar
lawyers;
-if choice of
counsel has
been removed
legislatively,
clients will have
no choice when
LAM lawyer is
in conflict
LAM lawyers
enabled to
breach ethical
obligations;
-obligation
exists for client
protection;
·poor are not
entitled to less
·amendment to
remove s.20(2)
Management/
Advisory
Bodies
Should
include 2
members of
MBA on
council, not
only3 from
LSM;
•amendment
to s.5(4) for
two MBA
and twoLSM
members

4. Legal Aid
Lawyers'
Association
-DavidJoycey,
Vice President
5. Law Society of
Manitoba (LSM)-
Allan Fineblit,
CEO
6. Manitoba
Criminal Defence
Lawyers'
Association-
Sheldon Pinx,
President
**
7. Michael
Williamslawyer/private
citizen
8. Sarah Innesslawyer/private
citizen
9. Laura Friendcriminologist/priva
te citizen
10. Val
McCaffrey-retired
reacher/private
ciruen
Echoes above
concerns of
MARL,PILC
and MBA
Echoes above;
·hire more
LAM lawyers;
•retain choice
by costeffective
management
No choke
thwarts equal
access to
justice;
•private bar in
criminal cases
offers quality;
•no choice may
result in
wrongful
convictions
-amendment
to dro_p s.14
LAM choices
limited in child
protection,
collaborative
law;
·no choice
precludes
access to
qualified pool
.-Aboriginal
people most
affected;
-echoes all
above;
•maj. of work is
not criminal
organisations
No choice
disenfranchises
further those
with little
choice
Supports all
initiatives in
proposed
legislation
Lower standard
of care for one
group;
-many
constituents
will be
unprotected if
poor enough;
-amendment to
remove s.20(2)
Courts will find
problem with
conflict;
·a tenet of
justice system is
relationship of
loyalty to client;
-wording
overbroad;
·amendment to
ensure no
conflict
Legislation is
unconstitut·
ional;
-ongoing
perception of
conflict;
.-courts will
decide
ultimately
Disagrees
with MBA on
council;
-MBA role to
oversee
interests of
the profession
•council's
decisions will
affect
finances for
profession
Clarify role of
Advisory
Committee

174 Underneath the Golden Boy
It is interesting to note that, of all the presenters at the committee, The
Manitoba Association of Rights and Liberties ("MARL") and The Public
Interest Law Centre ('PILC") exhibited the greatest number of concerns with
the proposed legislation, and also referred most strongly to the actual people
whom legal aid represents. When asked by Mr. Hawranik, MARL emphasized
that the choice of counsel issue would not necessarily require legislation, but
could be managed within the existing parameters of legal aid.5° PILC, however,
strongly mentioned the symbolic impact of the removal of choice and the
message that would be sent to society as a whole, in terms of different
entitlement between poverty and wealth circumstances. 51 The plight of women
in domestic violence situations requires a choice of legal counsel for the victim
at a time of powerlessness; criminal defence for a serious charge may call for a
choice of more specialized and experienced counsel. According to PILC, choice
of counsel is much more important than a symbolic right. 52
When Justice Minister Mackintosh made his opening statement after the
presentations were heard, he commented that it was unfortunate to have
received no feedback from the general public on the Review. 53 The minister
added that the LAM Review 2004 had been posted on the Department of
Justice website, and although there was feedback from some of the various
organizations present, none had come from the general public.
Presumably, the minister was hoping for input from the legal aid user population
as well as others. The general population, however, who has no need of legal aid
services, will not be moved to involve themselves in an amending bill that will
have no impact on their lives. Unfortunately, the poor do not usually have
ready access to the Internet to either read the Review or to offer their points of
view, nor is there sufficient advance notice of committee times. As the
presenter Val McCaffrey mentioned, she had registered only that evening
learning of the committee meeting one half hour beforehand, leaving her no
time to prepare. Ms. McCaffrey supported the amendments, and explained that
the average working person is likely too busy with their jobs and families to be
able to take the time required for this type of preparation and appearance. 54 In
his opening statement, justice critic Hawranik voiced concerns that there were
only two private citizens who were not lawyers presenting at the committee, and
reiterated that it would have been useful to hear from people who would benefit
from using the legal aid system. 55
50
Ibid. at 14.
51
Ibid. at 15.
52
Ibid.
53
Ibid.at 38.
54
Ibid. at 37.
55
Ibid. at 39.

The committee examined and passed each of the proposed clauses, with
amendments to proposed s. 6 to demand review of the fee tariff to private
lawyers at least every two years. The Management Council must consult with
the advisory committee, which is to meet at least four times per year and the
Council must also report ·the tariff review to the minister. The proposed s.
11(2), which dealt with the mandatory consent of the legal aid applicant, went
through an amendment directly from MARL's presentation earli r, and added
wording to remove the overbreadth of the scope of consent from third parties
about the applicant's financial status. 56
Another amendment at committee, in proposed s. 8.1, clarified the roles of the
Management Council and advisory committee, providing for annual
information to the advisory body regarding the number of applications received
and approved, as well as the number of applicants who had requested and
received the lawyer of their choice. The MBA amendment suggestion to
nominate two members to the Management Council, however, was not
enacted. 5
7
Proposed s. 12(3) stipulated that a criminal organization (according to Criminal
Code s. 2) would not receive legal aid under the group eligibility section,
prompting both Mr. Hawranik and Mr. Lamoureux to question the minister's
attempt to appear tougher on gangs to the public. 58 Mr. Hawranik could not
resist reminding the minister that a Hells Angels gang could not apply for legal
aid under the group eligibility clause, but an individual of that gang would still
be able to apply and qualify. The amending legislation on this dilemma was, by
all appearances, relatively impractical. But both members opposing it
specifically stated that they were not suggesting deletion for that amendment.
Minister Mackintosh repeated more than once that the concept of moving
more complex criminal casework into LAM remains. The three main
components of the concept were removal of the automatic right to choice of
counsel, implementation of new legislation to remove conflict of interest for
LAM lawyers, and the installation of the new management structure for LAM. 59
When all budget considerations were completed, the decision will be made
regarding moving to a greater ratio of casework by LAM staff lawyers. The
hiring of 10 more staff lawyers will not be decided until the provincial budget.
(NOTE: The provincial budget was brought down in early 2005; at the time of
this writing in December 2005, the number of LAM staff lawyers had not
changed).
56
Ibid. at 42.
51
Ibid. at 40.
58
Ibid. at 43.
59
IbiJ. at 46.

176 Underneath the Golden Boy
The Standing Committee on Justice delivered its report on 23 November 2004,
moved to be received by Chair Martindale, seconded by Ms. Irvin,Ross of Fort
Garry. 60
F. Third Readings & Royal Assent
Before third reading took place, a motion was made by Mr. Lamoureux to
amend part of Bill 47 to allow the selection of two members of the MBA from a
list of seven nominees to the Management Council of LAM. This change would
complement the two members selected from seven LSM nominees for the
council, and would effectively dispatch the concerns of MBA representation
voiced at the Standing Committee. 61
Mr. Lamoureux spoke to the amendment by saying that the MBA represented 1
200 lawyers in Manitoba, and there had not been a clear reason as to why MBA
representatives on the Management Council were not desirable in the
amendment scheme. 62 Dr. Gerrard seconded the motion, and followed Mr.
Lamoureux in saying that the MBA has an important role in ensuring the
workings of the justice system.
However, Mr. Hawranik spoke against the motion, stating that the
Management Council provision allows for the assignment of between seven and
nine members, so that two from both the MBA and LSM weights the council
too heavily in favour of lawyers over non,lawyers. 63 Bill 47 called for three
lawyer members from the LSM and at least three layperson members with an
appointed chairperson to comprise a council of seven to nine members. Further,
Mr. Hawranik reviewed the possibility that all three LSM council members
could also be CBA members. Finally, he believed that the principle of the
Management Council was to enable inclusion of those who use the services of
legal aid because legal aid exists for the benefit of clients, not lawyers.
Lastly, the Acting Minister of Justice and Attorney,General, Dave Chomiak,
also spoke against the motion-for the same reasons as Mr. Hawranik,
whereupon the motion put to the Assembly for the amendment to Bill 47
failed. 64
After Bill 47 entered its third reading, opposition justice critic Hawranik spoke
at length. He pointed out that the justice minister had caused a crisis within
legal aid the previous year when he failed to discuss the proposal and
60
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVI No. 2 (23 November
2004) at 25-26.
61
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LV,I No. 13B (9 December
2004) at 555-566:
62
Ibid. at 555.
63
Ibid. at 557.
64
Ibid. at 556-558.

implementation of a change and/or a tariff review with lawyers in the
province. 65 Mr. Lamoureux asserted that, when eight out of 10 committee
presenters were lawyers, the minister simply "caved in," with amendments to
Bill 47 according to their concerns, rather than putting the ordinary people's
needs front and centre. 66
Mr. Lamoureux and the PC MLA for Lakeside, Ralph Eichler, also voiced the
same opinions as Mr. Hawranik, and their comments turned into lengthy
diatribes about the Hells Angels gangs and the availability of legal aid to
individuals versus groups. It should be noted that the Hells Angels have never
applied as a group for legal aid. All involved decried the LAM Review of 2004
as a waste of taxpayers' funds, and that the motion for MBA members on the
Management Council was not successful.
In the end, Bill 47 passed third reading with the support of thoswho spoke in
lengthy criticism of it, and received Royal Assent on 9 December 2004. Bill 47,
The Legal Aid Services Society of Manitoba Amendment Act, S.M. 2004, c. 50 was
proclaimed and came into force 10 August 2005.
V. CONCLUSION:LONG SHADOWS
Many of the legislated changes are not unique to Manitoba. The mixed model
of staff and judicare (private bar) lawyers to deliver legal aid is common to other
provinces; particularly with Quebec, Saskatchewan, Newfoundland, Nova
Scotia, and Prince Edward Island using mainly staff systems supplemented with
members of the private bar. 67 The remaining provinces use the judicare model
to deliver legal aid-while the debate continues in all jurisdictions about the
comparative cost,effectiveness, the matter of which model is best has not yet
been resolved.
What is clear in Manitoba is that the year 2003 became the catalyst for changes
to legal aid. The annual incremental shrinkage of federal funding, a decade of
tariff rates neglect, and the "mega,triaP' failures with subsequent private bar
rebellion, factored into the press announcement by Justice Minister/A.G.
Mackintosh. The release stated, "...[N]ew ways of delivering services that
adapt to the challenges [are] being posed in light of the evolving legal
environment of complex cases and increased costs." 68 Because the average costs
per criminal case in Manitoba vary from $619 for the private bar to $490 for
65
Deana Driver, "Manitoba defence bar labels legal aid plans 'deplorable'" The Lawyers
Weekly Vol. 24, No. 9 (2 July 2004) (QL).
66
Supra note 61 at 559.
67
68
LAM Review, supra note 6 at 38.
Government of Manitoba, News Release "Legal Aid to be Reviewed, Change on the Way:
Mackintosh" (25 November 2003).

178 Underneath the Golden Boy
staff,(f) the decision to move to more staff lawyers became the major
recommendation for the LAM Review, and corresponded with the initial
request from the minister to advise how the move could be implemented.
Equally clear is that all of the Bill 47 amendments are geared toward ensuring
that a fuller complement of staff lawyers will be able to effect the cost savings of
criminal cases over the first few years of start up. A full..time chairperson of the
Management Council would presumably be better able to oversee the monthly
operation than a half time chairperson. This, however, raises the spectre of the
possibility of general micro management, or even encroachment into the areas
under the purview of an Executive Director. Will the term ('management"
change the operational aspect of what was previously termed a "board" The
latter obviously carries the inference of a policy body; while the former may
imply a much more active role.
Diluting the applicant's right of choice of legal counsel provides a stronger
administrative position in the matter, possibly enabling more effective case
management. The establishment of a separate criminal law office with staff
lawyers currently operates in Saskatchewan in order to eliminate concerns of
conflict of interest in the representation of co.-accused, although that province
uses several satellite offices with different lines of accountability. Newfoundland
and Labrador also utilizes separate community law offices, each with its own
board, and has legislated that each is to be considered a separate law firm,
thereby eliminating any possible conflicts of interest. 70 The intent in Manitoba
is slightly less, in that only one office was recommended, and as mentioned
earlier, this part of the proposed changes has not yet come about.
No one would argue that criminal organizations receiving legal aid services
probably should not be eligible, but that is something which a bill cannot
completely address. An individual is innocent until proven guilty in our legal
system, such that they are not necessarily precluded from legal aid even if that
individual is a member of a criminal gang. The legislation's attempt at foresight
was a hindsight reaction from 1998 and 2003. Yet, overall, how many of the
20 500 legal aid certificates issued by March 2004 and 22 500 in 2003 were
assigned to gang members versus poor individuals 71 While the wisdom of
planning for possible future en masse trials is indisputable, care must be taken
that the delivery of legal aid does not change so greatly that the people who
need its services lose the access that it currently offers.
It also remains to be seen whether or not staff lawyers can offer the legal
experience to an accused in an extremely serious criminal charge that senior,
private bar lawyers who handle these legal aid cases have over the years. While
69
LAM Review, supra note 6 at 2.
70
LAM Review, supra note 6 at 47.
71
Legal Aid Manitoba, Thirty second Annual Report (31 March 2004) at 18.

Mr. Currie has concluded that quality of legal aid lawyers' service results in the
same outcomes for accused persons as private bar service, those conclusions are
based on a broad examination of criminal charges. 72 It is simply unknown how
or if outcomes for the most serious criminal matters will differ.
Fiscal responsibility is desired and demanded, more today than ever, and it
appears that government continues to move to purely budgetary considerations
in the delivery of legal aid. Whether or not Legal Aid Manitoba can adhere to
its original and ongoing founding philosophy-to function effectively for the
poverty stricken population who are entitled to access to justice-is an issue
which strikes at the core of principles of fundamental justice. Supreme Court
Chief Justice Beverley McLachlin suggested that the focus must change from
the question of how legal aid is delivered to an examination of its role as a
component of the justice system. 73 The human element should not be
disregarded. The debate on effectiveness and cost.-efficiency is inconclusive and
masks the human costs of narrowed access caused by budget constraints. If
qualifying for legal aid becomes more stringent, these human costs could
include: further loss of dignity, alienation from community and society, and an
increased likelihood of conviction. In the words of Chief Justice McLachlin,
"Providing legal aid to low.-income Canadians is an essential public service. We
need to think of it in the same way we think of health care or education." 74
VI. AU1HOR'S AFTERWORD
In a personal interview with Justice Minister Mackintosh in the Manitoba
Legislative Assembly on 15 December 2005, one of the questions posed was
whether LAM will be able to truly embrace its original founding philosophy of
assisting the poor to access justice, and whether poverty issues will be stifled in
light of the recently enacted amendments. The Minister stated that the
government was attempting to enhance legal aid's ability, and that: "Legal aid is
critical to society and the functioning of the justice system." 75 The Minister also
pointed to the dramatic decrease in legal aid funding from the federal
government, saying that: "A paramount concern is federal support waning, now
at 50%." 76
72
Albert Currie, "Legal Aid Delivery Models in Canada: Past Experience and Future
Developments" (2000) 33 U.B.C.L. Rev. 285.
73
Supra note 1.
74
lbid. at para. 23.
75
Interview of the Honourable Gordon Mackintosh, Attorney General and Justice Minister
for Manitoba, by Judy Eagle (15 December 2005) at Manitoba Legislature, Winnipeg,
Manitoba.
76
Ibid.

180 Underneath the Golden Boy
These responses do not adequately address the true dilemma that hovers-that
somewhere between management, governance concerns and dwindling
government funding, there exist cracks into which those in our society who
have the least resources and the greatest needs inevitably fall. A watchful eye is
recommended-as ready action may be required to protect individuals' rights.

Bill 34, The Highway Traffic Amendment Act
JAMES PULLAR
1. INTRODUCTION
Bill34, The Highway Traffic Amendment Act, 1 was sponsored by Justice Minister
Gord Mackintosh, and had its first reading on 27 April 2005. The bill was
passed without amendment, and received Royal Assent on 16 June 2005. All
parties involved debated the bill, however, very little was focused on the
contents of the bill. Instead, the debate strayed from the issues found in the bill
and was directed towards tangential topics like the Government's support oflaw
enforcement officers. The Justice Minister had created a bill which the
opposition had to support. Politicians love to appear tough on crime, and this
bill appeared tough on crime. The core of this bill increases penalties for traffic
offences causing death, prostitution related offences involving vehicles, and
drinking and driving with a child passenger. Common sense seems to suggest
that the voters of the province would support this bill.
While the opposition supported the bill, they did not want Bill 34 to go through
the system with great ease, as this bill was bound to create positive publicity for
the New Democratic Party. So how does the opposition attack a voter friendly
bill The opposition steps outside the bill and examines the issue of
enforcement. They point out that legislation that is tough on crime is
meaningless without enforcement. Who then, is responsible for the lack of
enforcement Why, the penny..pinching NDP and the Minister of Justice, of
course. The opposition therefore demanded that the NDP Government
increase its support of the police in Manitoba.
The following piece will examine the four provisions contained in the bill
individually, and will follow Bill 34 as it travels through the readings, the
debates and the committee stages.
Bill34, The Highway Traffic Amendment Act, Jtd Sess., 38th Leg., Manitoba, 2005 (assented
to 16 June 2005), S.M. 2005, c. 31.

182 Underneath the Golden Boy
A. Offences Causing Death
Bill34 increases the punishment available if death results from an offence under
The Highway Traffic Act, 2 specifically s. 239(1):
239(1) A person who contravenes or fails to comply with or obey
(a) a provision of this Act or the regulations;
(b) a municipal by-law passed under the authority of this Act or the regulations; or
(c) an order, direction or requirement of a peace officer, a traffic authority, the traffic
board, the transport board or another authority or person
(i) given under the authority of this Act or the regulations, or
(ii) indicated or conveyed by a traffic control device;
is guilty of an offence and is liable on summary conviction to a fine of not more than
$2,000.
The amendment reads:
239.2(1) If a person's death results from the commission of an offence for which
another person is convicted under subsection 239(1) or another provision of this Act,
the convicting judge or justice may impose either or both of the following penalties:
(a) a fine in an amount that is not restricted to the maximum fine otherwise provided
for the offence;
(b) a term of imprisonment of not more than two years.
This is despite section 239 or any other provision of this Act that sets out a penalty for
the offence.
Licence suspension or disqualification
239.2(2) In addition to imposing a penalty under subsection (1) or under any other
provision of this Act, the convicting judge or justic.e may
(a) suspend the person's licence for a term of not more than five years; or
(b) disqualify the person from holding a licence for a term of not more than five years
if, at the time of the conviction,
(i) the person does not hold a licence, or
(ii) the person's licence is suspended or he or she is disqualified from holding a licence.
Limitation period -offences resulting in death
239.3 Despite any other provision of this Act or of any other Act, a prosecution for an
offence described in subsection 239(1) or under another provision of this Act may be
commenced not later than two years after the day on which the offence is alleged to
have been committed, if
The Highway Traffic Act. C.C.S.M. c. H60.

(a) a person's death is alleged to have resulted from the commission of the offence; or
{b) a person is alleged to have suffered a life-threatening injury as a result of the
commission of the offence.
The additional punishment is a fine that has no restriction on the amount,
imprisonment up to a maximum of two years, and a suspension or
disqualification from holding a driver's licence for up to five years.
The limitation period for commencing the prosecution of an offence under
s. 239(1) is set at two years after the day on which the offence occurred; if a
death is alleged to have resulted from the offence or a person is alleged to have
suffered life--threatening injuries from the commission of the offence. The
previous limitation period was only six months following the accident.
B. Drinking and Driving With a Child Under 16 Years of Age in
the Vehicle
According to Mothers Against Drinking and Driving ("MADD"): "Manitoba
has been very proactive when it comes to the crime of impaired driving." 3
Andrew Murie, the Canada CEO for MADD, encourages other jurisdictions to
look to Manitoba's example. 4 The bill, which is in line with Manitoba's
"proactive'' stance toward drinking and driving, also proposes increasing the
suspension of drivees licenses for alcohol related driving offences under The
Criminal Code 5 if a person under the age of 16 is a passenger in the vehicle. 6 In
the year 2000, 152 children aged 14 and under died, and 16 662 were injured as
a result of intoxicated drivers in Canada. Almost 11% of passengers killed by
intoxicated drivers are children aged 14 and under. 7 Mr. Mackintosh decided to
confront this issue. According to s. 264 (1), driving while one's ability to
operate a motor vehicle is impaired, 8 or failing or refusing to allow a breath
sample to be taken at an officer's request 9 while a child under the age of 16
years is in the vehicle, is a Category B offence. All Category B offences are
offences under the Criminal Code which involve a vehicle in the commission of
MADD, News Release, "Provincial Governments should look to Manitoba for 'what can be
done,"' {11 January 2005), online: MADD Canada .
Ibid.
R.S.C. 1985, c. C-46.
Supra note 1 at s. 252.
Transport Canada, Canadian Motor Vehicle Traffic Collision Statistics, (2001) online:
Transport Canada .
Supra note 5 at s. 253(a).
Ibid.at s. 254{5).

184 Underneath the Golden Boy
the offence, ranging from manslaughter 10 to theft of a motor vehicle.u Section
264(1.1) sets out the punishments for offences under s. 264 12 :
264(1.1) Subject to subsection (1.2)s the licence and right to have a licence of a pemon
convicted of a Category A or Category B offence, or of an unrelated series or
combination of those offences committed within a 10-year period, is suspended, and
the person is disqualified from operating a motor vehicle and an off-road vehicle, for a
period determined according to the following table:
Number of convictions for Number of convictions for Length of suspension and
Category A offences Category B offences disqualification
0 1 year
2 0 5 years
0 5 years
3 0 10years
10 years
0 2 10 years
4 or more 0 lifetime
2 or more lifetime
1 or more 2 or more lifetime
0 3 or more lifetime
Increased suspension for refusal
264(1.2) Despite subsection (1.1), when a person commits
(a) one offence under subsection 254(5) of the Criminal Code 13 within the 10-year
period, but no other offences, the length of suspension and disqualification shall be
increased to two years; or
(b) two offences under subsection 254(5) of the Criminal Code within the 10-year
period, but no other offences, the length of suspension and disqualification shall be
increased to seven years.
At the time of the bill's creation, drivers convicted of driving while intoxicated,
including those where there was a child passenger, could have their licences
10
Ibid. at s. 236.
ll
Ibid. at s. 234.
12
Ibid. ats. 264 (1.1).
13
Supra note 5.

suspended for one year after the first conviction, five years after a second
conviction, 10 years after a third conviction, and a lifetime driving ban for four
convictions within 10 years. 14 According to Bill 34, the maximum suspensions
for driving intoxicated with a child in the vehicle are set at five years for the
first offence, 10 years for a second offence and a lifetime suspension for a third
conviction. 15
C. Suspensions for Prostitution Related Offences
The bill sought to add suspensions to the driver's licenses of those who were
convicted of prostitution related offences where a vehicle was used in the
commission of the act. The suspension will be one year for offenders who have
not been convicted of prostitution related offences in the past 10 years, and two
years for offenders who have been convicted in the past 10 years. 16 This
amendment is intended to supplement the vehicle forfeiture and seizure for
prostitution related offences under the Highway Traffic Act. 17
The amendment reads as follows:
Suspension for prostitution -related offences
264(6.1) The licence and right to have a licence of a person convicted of a
prostitution-related offence is suspended, and the person is disqualified from driving a
motor vehicle and operating an off-road vehicle, for
(a) one year from the date of the conviction, if in the 10 years before the date of the
offence the person did not commit another prostitution-related offence for which he or
she was also convictedi or
(b) two years from the date of the conviction, fin the 10 years before the date of the
offence the person did commit another prostitution-related offence for which he or she
was also convicted.
D. Setting Aside Forfeiture of a Vehicle
Section 242.3 18 is amended to allow an application by faultless owners to have a
vehicle forfeiture set aside after it has taken place. The forfeiture may be set
aside if the Justice is satisfied that the offender was in possession of the vehicle
without the knowledge and consent of the owner or the owner could not
reasonably have known that the vehicle would be operated in the course of
committing the offence. There is also a requirement for timely action on behalf
14
Allison Dunfield, "Manitoba drunk drivers facing tougher sanctions/' Globe and Mail (28
April 2005L online: MADD Canada .
15
Supra note 1 at s. 264(1.1).
16
Ibid. at s. 264(6.1).
17
Supra note 2.
18
Ibid. at s. 242.3.

186 Underneath the Golden Boy
of the owner. In addition, if the vehicle was seized and not forfeited, under
s. 242.3(39)( 9 the owner will have to pay for the cost of the seizure before an
order to set aside the forfeiture can be made. This provision did not gamer
much attention in the readings, the debates, nor the committee.
II. FIRST READ1NG 20
The Minister of justice, Gord Mackintosh, introduced Bill 34, which was
seconded by the Minister of Transportation. At this time, Mr. Mackintosh
briefly summed up the bill by stating that it "enhances some sanctions,
including for drivers convicted of impaired driving with a child passenger, and
for offences resulting in death." 21
The other provisions of the bill, those covering prostitution related offences and
the innocent car seizure, were not specifically identified at that time.
On the day after the first reading of Bill34, a statement by Mr. Mackintosh was
printed in the Globe and Mail: "Impaired drivers are a hazard to everyone on the
road, but the offence is even more reprehensible when they endanger a child." 22
III. SECOND READING
A. 10 May 2005 23
Mr. Mackintosh began the second reading by addressing the increased penalty
for Highway Traffic Act 24 violations resulting in death. The purpose, he stated, is
to punish those who have violated the Act but, due to a lack of evidence,
criminal charges cannot be supported. 25 Because The Highway Traffic Act had
previously limited the fines for most offences to $2 000, and licence suspensions
to one year, the Government decided to increase the penalty to match the
gravity of the offence. The limitation period for commencing an action where
death occurs, or where there is a life..threatening injury, was increased from six
months to two years. The reason for the extended limitation period, however,
was not expressed by the Minister of Justice. An interview with David Greening
19
Ibid. at s. 242.3{39).
20
Manitoba, Assembly, Debates and Proceedings Vol. LVI No. 37 (27 April 2005)
[Petitions (27 April2005)] at 1927.
21
Ibid.
22
Supra note 14.
23
Manitoba, Legislative Assembly, Debates and Proceedings Vol. LVI No. 44 {10 May 2005)
[Debates (10 May 2005)] at 2566-2572.
24
Supra note 2.
25
Supra note 23 at 2566.

from Manitoba Justice's Policy, Development and Analysis Department
revealed that it,
[W]as done to ensure that the police do not miss an opportunity to charge the right
people with the right offence because they need more than six months to complete a
thorough investigation or are dealing with a complicated case that takes more time. 26
The Minister of Justice then spoke on the next issue, covering impaired driving
and child endangerment, with greater detail. He stated that "persons who are
convicted of impaired driving with a child in their vehicle do not currently
receive a higher level of suspension than impaired drivers who do not have
child passengers." 27 Under the new amendment, those persons would face stiffer
penalties. The amended penalties are the most severe licence suspensions
available under the Highway Traffic Act. These range from a five year
suspension to a life suspension. Mr. Mackintosh pointed out that although this
policy of protecting children from intoxicated drivers is a first in Canada, it is
used in approximately 35 American jurisdictions. 28 The provision itself,
however, was not modeled after a specific jurisdiction but was influenced by the
actions taken by those jurisdictions. 29
The next provision discussed by the Justice Minister was the driver's licence
suspension for persons convicted of prostitution related offences, in which a
vehicle was involved in the commission of the offence. He stated that the
purpose of this amendment was to supplement the provision in the Highway
Traffic Act 30 that allows for the seizure and forfeiture of the vehicle used in the
commission of a prostitution related offence. Following that brief note, the
Minister moved on to another provision in the amendment that sets out a
procedure for those innocent vehicle owners who have mistakenly failed to
apply for the release of their vehicle before the forfeiture took place.Jt This is for
honest mistakes and failures that are not the owner's fault.
The Justice Minister concluded on that point, and Kevin Lamoureaux, the
Deputy Leader of the Liberal Party, continued the discussion by stating his
concerns about the bill. He wondered why the Minister of Justice was not
protecting those children who are not passengers in an intoxicated driver's car,
but are also at risk through the driver's actions; 11 Why is [Mr. Mackintosh] not
protecting those children Why does he have a double standard" Mr.
26
Interview of David Greening by James Pullar (5 December 2005).
27
Supra note 23 at 2566.
28
Ibid.
29
Supra note 26.
30
Supra note 2.
31
Supra note 1 at s. 242.3(25).

188 Underneath the Golden Boy
Lamoureux believes that the Legislation should bring "the heavy arm of the
law" down on all drunk drivers. 32
Mr. Lamoureux also looked at the provision dealing with prostitution related
offences. His criticism of that amendment shared a common theme with the
criticism brought forth by many other MLAs who spoke about the bill. The
criticism was directed at the Government's lack of support for those enforcing
the law. He that so few cars have been confiscated that amending the
penalty will not make a difference. Why make the penalty stiffer if it will not be
used A deterrent only works if it is enforced. He wanted support for the police
so that they would be able to enforce the legislation.
Mr. Lamoureux criticized the Justice Minister for forcing the opposition to vote
for legislation like Bill34. He stated:
I am getting tired of the fluff legislation which the minister tries to challenge us to vote
against. He makes it very difficult. You know, we are going to have to look at this
legislation. You make it very difficult to say no because we know how this minister
operates on propaganda. 33
Mr. Lamoureux cannot vote against the bill on the principle that it is pointless
legislation because the Justice Minister will play politics with the statement. Mr.
Mackintosh will"[try] to give the impression that maybe I am not as tough as
the New Democrats when it comes to dealing with crime." 34 Mr. Lamoureux
claimed that it is, in fact, Mr. Mackintosh who is not tough on crime, which he
claimed could be backed by statistics. He then spent 10 minutes discussing
unrelated crimes to illustrate how inaction and lack of support for police from
the Justice Minister has allowed crime in Manitoba to continue unabated.
As Mr. Lamoureux's allotted time expired, he was beginning to discuss the issue
of protecting other people, aside from just children, such as veterans and
seniors. He stated that Mr. Mackintosh should look to the reason for creating
the bill. At this point he was cut off by the Speaker. One could make the
assumption that Mr. Lamoureux was trying to make the point that the bill's
purpose was to protect vulnerable people, and children are not the only
vulnerable people. Or, that all people are at risk and should be protected by
stiffer penalties for all intoxicated drivers.
Following the announcement of the expiry of time, a motion to adjourn the
debate was made. The motion passed. 35
32
Supra note 23 at 2568.
33
Supra note 23 at 2569.
34
Ibid. at 2570.
35
Ibid. at 2572.

.1. ne rugnway L TU.JJlC .n.rnenu.mew; .n.c ; 10.,-
B. 30 May 2005 36
On 30 May 2005, the second reading resumed with Kelvin Goertzen, the
Conservative Justice Critic, who criticized the Minister of Justice while speaking
favourably about the bill. Mr. Goertzen pointed out that, for all the legislative
action taken by the Minister to prevent drinking and driving, the province is
not safer, and that there has not been a reduction of drinking and driving in
Manitoba. He stated that Manitoba already has tough drinking and driving
legislation, although he gives credit for this to the Conservative government of
the 1990s and not to the current government. Despite all this legislation, he
maintains that drinking and driving is on the rise. Mr. Goertzen had two
explanations for the rise in drinking and driving offences. 37
The first of Mr. Goertzen's reasons for the increase was the lack of support for
law enforcement. He claims that despite the Minister's statements regarding
additional officers, the numbers have not yet increased. Mr. Goertzen made
reference to the addition of 54 "paper officers" on paper, which he explained
does not translate into officer on the streets. I asked Mr. Goertzen what he
meant by "paper officers." He explained that: "[W]hile they added these officers
to their books, they were not in place and are still not in place because the
training is so far behind." Even though additional officers were "added" months
before the legislation was announced, the officers did not begin training until
November 2005. 38 Mr. Goertzen actually suggested in the second reading that
these "paper officers" are used by Mr. Mackintosh to "force [the] opposition
into the comer,'' so that they cannot criticize his policing of the province. 39
This, apparently, has not worked, as both the Liberals and the Conservatives
have criticized the Minister of Justice's support for tnlice in Manitoba. Mr.
Goertzen pointed to the possible closure of the Morris RCMP detachment as a
sign of decreasing law enforcement.
The second reason for higher levels of intoxicated drivers suggested by the
Justice Critic was lax punishment. He blamed the Government for conditional
sentences handed out by judges; which in turn, prevents the creation of
deterrents for drivers. He noted that he has suggested in the past that the
Minister of Justice should institute a policy that the Crown will not recommend
conditional sentences. Mr. Mackintosh responded by informing Mr. Goertzen
that the Ministry of Justice does not set policies like that for the Crown. Mr.
Goertzen countered with a recent policy, introduced by the Minister of Justice,
that the Crown will ask for "specific and strict sentences" for crimes committed
36
Manitoba, Legislative Assembly, Debates and Proceedings, VoL LVI No. 54 (30 May 2005)
[Debates (30 May 2005)J at3076-3079.
37
Ibid. at 3077-3079.
38
Interview of Kelvin Goertzen by James Pullar (7 December 2005).
39
Ibid.

190 Underneath the Golden Boy
with handguns and other weapons, and asked, if the Minister of Justice can do
it for these crimes, then why not drinking and driving offences 40
If these two issues are not addressed, this tougher legislation will not make a
difference, explained Mr. Goertzen. To make a difference, people need to know
that they will get caught and that the sanctions will be stiff. 41
IV. CO}vflvflTTEE
The committee began by hearing from a private citizen, Ms. Diane Rybak. She
expressed her support for the bill, but she also requested an amendment. She
felt that the legislation should reflect the age of majority in Manitoba, which is
18. She asserted that the discrepancy as to who is a child under this legislation
and who is a child in reality is not sending the correct message to new drivers,
and many 16 and 17 year olds are not in a position to refuse rides with their
intoxicated parents. Ms. Rybak also requested more check,stops in rural
Manitoba. At this point her presentation was completed, but she was asked
several questions from some of the committee members.
Mr. Goertzen, who was the first to ask questions of Ms. Rybak, began by stating
that his party does not oppose tough legislation, but that they believe that the
problem lies with the enforcement of the legislation; as tough laws without
enforcement are of no use. His question was whether she thought that the
reason more and more people are caught drinking and driving in Manitoba was
due to a lack of police resources. She agreed but added that she felt that an
unwillingness to enforce the law was also to blame. 42 The points made by both
parties seem somewhat peculiar, as the lack of resources and lack of
enforcement should logically decrease the number of charges. Mr. Goertzen and
Ms. Rybak may have intended to make the point that low levels of enforcement
of current laws create and reinforce a coinciding public perception of low
enforcement; therefore, no deterrence is created; resulting in high incidences
when the law is enforced. They felt that were there greater enforcement, there
would be a greater number of charges, at least in the short run, as hopefully
these numbers would go down over time as the enforcement created deterrence.
The next person to speak was Dr. Jon Gerrard, leader of the Manitoba Liberal
Party. He asked Ms. Rybak about her thoughts on the suggestion that
legislation ought to be extended to cover all vulnerable people. 43 She agreed
with the suggestion, because these individuals rely on others for transportation
40
Ibid.
41
Ibid.
42
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVI No. 7 (6 June 2005)
[Standing Committee (6 June 2005)] at 168-170.
43
Ibid. at 168-169.

1ne ntgnway 1 TaJJlC fi.menament r\Ct 1':J 1
and may not have the ability to refuse a ride or to understand the danger that
they are in."" This recommendation, however, ultimately was not heeded, as Bill
34 was passed without such an amendment. 45
Conservative MLA David Faurshou brought forward the issue of enforcement
once again. In short time, this was restated by Mr. Goertzen before the Justice
Minister replied. In defence, Mr. Mackintosh pointed to the recent injection of
$9.5 million into the RCMP budget. 46 He stated that the money was not
earmarked for any particular need, but that it was for the RCMP to decide how
it would be deployedY
The meeting was concluded after a few further comments by Ms. Rybak. She
relayed her concerns that without check stops, the message-that drinking and
driving is wrong and will be punished-is not being disseminated. Concern was
also raised about possible behaviours that children could be learning from their
parents who drink and drive. She believed that by acting now, these potential
behavioural patterns could be broken. 48
In the end, the message conveyed by both the opposition and the private citizen
was that the law should be amended to include other vulnerable people and
that enforcement needs to be increased. Nevertheless, the Justice Minister
never addressed the issue of amending the bill to cover other vulnerable
individuals. The bill left the committee stage without any amendments. I asked
Mr. Greening why the Government did not consider an amendment to include
others. He replied, "It is important to remember that Manitoba was breaking
new ground by being the first province in Canada to introduce this type of
legislation and it was thought that, as a starting point, it would be best to
proceed with legislation that had a very precisely defined scope with
straightforward and easily determinable criteria (i.e. a passenger in a car under
16)."49
It is worth noting that the other elements of Bill 34 were completely ignored
during the committee, including the issues brought up during the second
reading.
44
Ibid. at 169.
45
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVI No 65B (16 June 2005)
[Debates 16 June 2005].
46
Supra note 42 at 169.
47
Ibid.
48
Ibid. at 169-170.
49
Supra note 26.

192 Underneath the Golden Boy
V. ROYAL ASSENT
Bill34 was passed without amendment and received Royal Assent on 16 June
2005. 50
VI. MR. MACKlNTOSH AND MADD
The Minister of Justice and MADD have a very congenial relationship. Mr.
Mackintosh has transformed Manitoba into a leader in the fight against
drinking and driving. The Minister is rewarded for his work, as MADD
continually recognizes the province's accomplishments through press releases
and by posting the Minister's letters on the MADD website. MADD cites
Manitoba as an example, urging other jurisdictions to follow the province's
example. The following is a brief look at their symbiotic relationship through
correspondence with each other and with others.
A. A Letter from Mr. Macintosh to MADD
On 22 December 2004, the Justice Minister wrote a letter 51 to MADD outlining
the current and future state of drinking and driving laws in Manitoba. He began
by announcing the Government's plans for the next bill on the issue, Bill34. He
pointed to similar legislation in 35 American states and maintained that he
would push for the addition of increased penalties in The Criminal Code 52 for
driving impaired with children as passengers. In the meantime, Manitoba will
introduce a four point plan to combat this child endangerment. 53
The first step in the plan is to implement a Crown policy of seeking higher
penalties for impaired drivers who had children in the vehicle at the time of the
offence. 54 The second step is to work with the police "to develop protocols for
reporting instances of adults driving impaired with children to Child and Family
Services for their action." 55 The third step is Bi1134, which introduces penalties
under The Highway Traffic Act. 56 The final step is to have the government
50
Supra note 45.
51
"Letter from Gord Mackintosh, Manitoba's Minister of Justice and Attorney General/'
MADD Canada Releases (30 September 2005), online MADD Canada .
52
Supra note 5.
53
Supra note 51.
54
Ibid.
55
Ibid.
56
Supra note 2.

provide advice for separated or divorced parents about the steps they can take
to prevent the other parent from driving impaired with the children. 5
7
The Minister of Justice closed the letter by listing all of the Government's
accomplishments over the past five years. The list featured nine changes that
were made to drinking and driving legislation. For these initiatives, the
Government of Manitoba and the Minister have been praised repeatedly by
MADD.
B. A Press Release from MADD
On 11 January 2005, MADD posted a press release 58 on its website encouraging
other provinces to follow in Manitoba's footsteps: "We hope that governments
across the country look to Manitoba for what can be done." 59 The press release
looked at the proposed legislation-which would become Bill 34-and recent
legislation. ' 4 Manitoba's comprehensive strategy to deal with impaired driving
child endangerment is very encouraging/' says Mr. Murie, MADD Canada's
Chief Executive Officer.(:lj "We are also very pleased with latest amendments to
Manitoba's Highway Traffic Act that will provide express authority for police
officers to use Standard Field Sobriety Testing." 61 Mr. Murie and MADD took
the time to mention the Justice Minister personally: "Unquestionably, the
Province of Manitoba is leading the way on many fronts when it comes to the
fight against impaired driving. We are appreciative of Minister Gord
Mackintosh's leadership and courage to take some tough stands on the issue of
impaired driving." 62
C. MADD's Progress Report
MADD ranked Manitoba as top the province for the third year in a row when it
comes to curbing drinking and driving, in a report issued on the eve that Bill34
received Royal Assent. '1 wish we had 12 jurisdictions like Manitoba," Mr.
Murie said. 63 Despite the praises, MADD was not content with Manitoba
resting on its laurels; MADD was requesting more changes to the Manitoba
Highway Traffic Act. 64 MADD wanted Manitoba to give the police more
authority to do check stops and use passive alcohol sensors, which are currently
57
Supra note 51.
58
Supra note 3.
59
Ibid.
60
Ibid.
61
Ibid.
62
Ibid.
63
Mia Rabson, "Manitoba has come out at the top," Winnipeg Free Press (15 June 2005),
online: MADD Canada .
64
Ibid.

194 Underneath the Golden Boy
used without legislative authority. In late 2004, another amendment was passed
which gave police statutory authority to conduct Standardized Field
Sobriety Test, reducing the likelihood of a court challenge to positive result. 65
MADD also wants the driving age raised from 15·and Y2 years to 16. Mr.
Mackintosh responded by agreeing to consider the advice.M
D. Analysis of the Relationship
The Manitoba Government, fresh off the proclamation of Highway Traffic Act
amendments dealing with Standard Field Sobriety Testing, introduced another
bill on the issue of drinking and driving. Although great strides have been made
by the Doer Government, it is as if they are using a step..by..step method to deal
with a serious problem. On the issue of drinking and driving, laws which hand
down tougher punishment to offenders are generally favoured by the public. It
would seem unlikely that a majority government, like the Doer govemmen4
would find any difficulties in pushing the legislation through as one
comprehensive amendment. Is the method it is using merely an attempt to
gamer more positive publicity Clearly, the government is using MADD to
create positive publicity, while MADD is using the Doer government to make
strides in the prevention of drinking and driving in Manitoba and across the
country. The Justice Minister stated during the second reading of Bill 34 that
((Manitoba has been recognized by MADD Canada for its efforts to counter
impaired driving, and those efforts cannot ever be taken for granted." 67 Any
ulterior motives behind this symbiotic relationship, however, are not necessarily a
bad thing, as this relationship may ultimately result in safer streets in
Manitoba.
VII. CONCLUSION
A. MADD and the Bill
In 2000, Manitoba was fourth on MADD's provincial ranking. Manitoba moved
into the top spot in 2003 and has remained there for three years. 68 The NDP
government and the Justice Minister, in particular, have been very progressive
on this issue. Whether this legislation was created out of pure desire to protect
children, or merely politics, the children of Manitoba are now safer; at least in
the eyes ofMADD, because ofBill34.
Although the actions of this government to reduce drinking and driving may be
deserving of praise, the manner in which they have introduced the legislation
65
Supra note 49.
66
Supra note 61.
6 7 Supra note 23 at 2567.
68
Supra note 63.

leads one to think that the primary motivation was praise. The amount of
legislation pushed through in the last six years by the NDP government on this
issue, and the announcement of Bill 34 mere days after the last legislation
received Royal Assent, is telling of this. The NDP government recently
introduced another billBill 18: The Highway Traffic Amendment Act 69
(Countermeasures Against Impaired Drivers and Other Offenders), to combat
drinking and driving. This bill will allow alcohol related offences committed in
the United States to have the same status as offences committed in Canada for
the purposes of drivers' licence suspensions and related administrative
sanctions. 70 In an interview, Mr. Goertzen stated that Bill34 "should have been
part of a larger bill or package but I suspect this allows the government to get
media over time as opposed to all at once!' 71
With all the drinking and driving legislation that this government has
introduced, however, are accidents on the decrease Have the number of
fatalities gone down The MADD rating is based on legislation and not results.
Therefore, a high MADD rating does not necessarily mean that the streets of
Manitoba are safer than those of lower#ranked provinces.
B. The Opposition and the Bill
Bill 34 is not a bill that the opposition could fight. To vote against the bill
would not be a wise political choice. Mr. Goertzen stated that his party, the
Conservatives, supported the bill but questioned the NDP's intentions: "The
frustration came not from the fact the government may get good publicity on
[the bill] but rather that it might have been introduced for no other reason." 72
The only options were to attack the reach of the bill using questionable
reasoning (if we cannot help everyonethen we should not help anyone), and to
stress the futility of introducing new legislation when the old legislation was not
being enforced. Both of these options were utilized by the opposition. A Liberal
MLA, Mr. Lamoureux, questioned the bill because it only protected certain
children. Why protect only a select group of children-those who are
passengers in a vehicle being driven by someone under the influence-and not
protect all children put at risk due to impaired driving Conservative MLAs,
Liberal MLAs and a private citizen demanded greater enforcement of current
legislation, stating hat stiffer penalties will only be a deterrent if they are
enforced. The opposition claims that there simply are not enough people being
charged with prostitution related offences and drinking and driving offences
because the police in this province do not receive enough support. In the words
69
Ibid.
70
Ibid.
71
Supra note 38.
72
Ibid.

196 Underneath the Golden Boy
of Mr. Goertzen: "Legislation does not pull over drivers nor does legislation
administer breathalyser tests. The law is only effective if police are in place to
enforce it." 73
73
Ibid.

A Prescription in the Public Interest
Bill 207, The Medical Amendment Act
THERESA VANDEAN DANYLUK
I.1N1RODUCTION
''when there are [private members'] proposals that the government
finds in the public interest, I think there is a more recent
developing interest to work together and get these proposals
moving." 1
Generally, the passage of Private Members' Bills ("PMB") 1 into law is a rare feat
for opposition members and government backbenchers ("private members"). In
the Manitoba Legislature, this statement is particularly true-since 1992, while
141 PMBs were formulated, 88 of which were printed and introduced in the
House, only four subsequently became law. 3 It should, however, be noted that
these figures do not account for PMBs which, after being introduced by private
members but not passed, are introduced and subsequently passed in whole or in
part through government legislation.
Interview of Hon. Gord Mackintosh, Attorney General and Government House Leader, by
Theresa Danyluk (6 October 2005) in Winnipeg, Manitoba.
A private members' bill is a bill presented to the House by either a government
backbencher or an opposition member. There are private members' public bills; dealing
with general legislation, and private members' private bills; used most commonly for the
incorporation of an organization seeking powers, which cannot be granted mder The
Cmporations Act, or for amendments to existing Private Acts of Incorporation. See
Manitoba, Legislative Assembly, "Private Bills, Process for Passage of a Private Bill in the
Legislative Assembly of Manitoban online: The Legislative Assembly of Manitoba
.
Manitoba, Legislative Assembly, Journals, Appendices "C" and "D" from 4Fh Sess., 35ch Leg.,
1992-93-94 to Jd Sess., 38ch Leg., 2004-05. Since 1992, the total number of private
members bills introduced in the House was 141; 53 of those were not printed, two were
ruled out of order, and four were passed. Of these four, one was passed by a government
backbencher, and three were passed by members of opposition parties. See also attached
Tables: Table 1 ("History of Introduction and Passage of Private Members' Public Bills in
Manitoba, 1992-2005") and Table 2 ("Sponsors, Titles and Passage of Private Members'
Public Bills Passed in Manitoba, 1992-2005").

198 Underneath the Golden Boy
While private members face several obstacles in overseeing the passage of bills
they seek to introduce into law, during the Third Session of the 38th Legislature
some of these impediments were overcome when Bill 207, The Medical
Amendment Act ("MAA"), was passed. The bill was introduced by Len Derkach,
the Opposition House Leader and Member of the Legislative Assembly
("MLA") representing the Russell constituency. 4
Although Bill 207 creates a significant change with respect to the prescribing of
"non traditional/' "alternative," or "complementary" health therapies, its
passage may be just as, if not more, significant in other respects. More
specifically, the passage of this PMB-the second passed in as many legislative
sessions and only the fourth passed since 1992-may be a sign that the
government and opposition are "healing" legislative relations, setting aside
political barriers, and aspiring to legislate in the "public interest". Or, on a less
optimistic note, its passage could be the result of other factors, including
coincidence; the position, character and strategy of the private member who
sponsored the bill; amendments introduced by the government that altered the
substance of the bill, making it something the government was willing to
support; and so on.
This paper will explore these above stated issues with specific reference to the
history and passage of Bill 207. First, it will explore Bill 207 and the Act it
amends: The Medical Act ("MA 11
). Next, it will look at the origins of the bill and
go on to examine the introduction and passage of the bill through the House.
This paper will then examine the critiques of Bill 207, with reference to
submissions made at the Committee Stage prior to the enactment of the bill,
personal interviews conducted subsequent to the bill's passage, and through an
examination of the bill itself. Finally, this paper will assess Bill 207 through a
broad, critical lens, by considering issues such as why the bill may have arisen
and passed as a PMB rather than a government bill, and whether or not the
passage of Bill 207 is a sign that the current government is increasingly willing
to set aside "politics" in order to legislate in the "public interest".
Before proceeding, I would like to thank all those who agreed to be interviewed
regarding this bill, including the Hon. Gord Mackintosh, Dr. Bill Pope, Dr. Jon
Gerrard, Mr. Ralph Eichler, and Mr. Rick Mantey. Other important figures in
relation to this bill were contacted but did not respond to the invitation to be
interviewed.
II. BILL 207:THE MEDICAL AMENDMENT ACT
I believe that the bill is important because it seeks to strike a balance between the
evolution of appropriate new therapies which are not traditionally considered as part of
the existing basket, at the same time protecting both practitioners and patients from
The Russell constituency is in western Manitoba.

people who would advance therapies that are inappropriate, are unproven, and, in
some cases, could be significantly dangerous.... I believe that balance has been found
in the wording that was agreed to in committee. 5
Bill 207, The Medical Amendment Act, 6 is a concise bill that amends The Medical
Act. 7 The original bill sponsored by Len Derkach added the following after s. 36
oftheMA:
Non traditional therapies
36.1 Despite section 36, Parts VIII to X and the regulations and by-laws, a member shall
not be found guilty of professional misconduct or of incompetence 10lely on the basis
that the member practises a therapy that is non traditional or departs from the
prevailing medical practice unless there is evidence that proves that the therapy poses a
greater risk to a patient's health than the traditional or prevailing practice. 8
In general, the MA is legislation governing the practice of medicine in
Manitoba; an area of provincial jurisdiction by virtue of sections 92(7), (13) and
(16) of the Constitution Act, 1867. 9 The MA addresses several issues related to
medical practitioners, including who is "deemed" to be practicing medicine, 10
and who is excluded by the Act. 11 The MA also deals with the establishment of
registers (Part II), the registration and licensing of members and associate
members (Part III), medical corporations (Part IV), the general powers of the
College of Physicians and Surgeons of Manitoba ("CPSM") (Part V), the
Council of the College (Part VI), the Standards Committee and Program
Review Committee (Part VII), offences and penalties (Part XIII) and so on.
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVI No. 65A (16 June 2005)
at 3667 (Hon. Tim Sale, Minister of Health).
Bill 207, The Medical Amendment Act, 3d Sess., 38th Leg., Manitoba, 2005 (assented to 15
June 2005), S.M. 2005, c. 45.
The Medical Act, C.C.S.M. c. M90.
Supra note 6 at s. 2 of the pre -amended bill as initially submitted by Len Derkach. See
Manitoba, Legislative Assembly, The Status of Bills Third Session, Thirty-Eighth
Legislature: Bill 207, online: The Status of Bills [emphasis added].
Constitution Act, 1867 (U.K.), 30 & 31 Viet., c. 3, reprinted in R.S.C. 1985, App. II, No.5.
Under the Canadian Constitution, health care is considered a matter of provincial
jurisdiction. Only the provinces have the constitutional right to make laws regarding health
care programs and services within their own region. Federal participation in health care is
by virtue of its spending power. Each year, the Government of Canada contributes billions
of dollars to provincial health care programs. For more information, see Martha Jackman,
"Constitutional Jurisdiction over Health in Canada," online: .
10
Supra note 7 at s. 2 (1).
11
Ibid. at s. 2(2). Those excluded from the Act include: {acting within the scope of their
relevant Acts) podiatrists, chiropractors, midwives, naturopaths, nurses, opticians,
optometrists, physiotherapists, and persons registered under The Psychologists Registration
Act, C.C.S.M. c. Pl90.

200 Underneath the Golden Boy
In particular, as referenced in Bill 207, Part VIII of the MA deals with the
establishment and makeup of the Complaints Committee, 12 Part IX deals with
the Investigation Committee, 13 and Part X deals with the Inquiry Committee
Appointment. 14 These provisions come into play where there is a concern about
the conduct of a "member,, 15 brought to the attention of the College either by
the public or through internal investigations of the member. Section 36 permits
the Council of the College, in relation to this bill, to: (i) exercise disciplinary
jurisdiction over members; (ii) establish and maintain professional standards of
medical practice; (iii) make by--laws for the exercise and carrying out of the
powers, rights and duties conferred or imposed upon the Council or the College
by the MA and any other Act of the Legislature; and, (iv) make rules respecting
the standards of practice and ethics by members and the conduct of the affairs
of the college, council and committees. 16
It is important to note that the original printed bill as submitted by Mr.
Derkach and set out above, was amended at the Committee stage by the
Honourable ("Hon.") Tim Sale, Minister of Health, seconded by Mr. Derkach.
The second clause of Bill 207, as amended and incorporated into the MA, now
reads:
Non traditional therapies
36.1 Despite section 36 and Parts VIII to X, a member shall not be found guilty of
professional misconduct or of incompetence solely on the basis that the member
practises a therapy that is non,traditional or departs from the prevailing medical
practice, unless it can be demonstrated that the therapy poses a greater risk to a patient's
health or safety than the traditional or prevailing practice. 17
While on its face there does not appear to be a significant difference between
Mr. Derkach's initial version and the final version as amended by the Hon. Mr.
Sale, a closer examination and comparison of both clauses reveals otherwise,
and may shed some light on the "backstage politics" of this bill. Whereas Mr.
Derkach's draft stated that there must be "evidence that proves" that the
alternative therapy posses a greater risk to a patient's "health" than the
conventional practice, Minister Sale's amended version-the adaptation now
included in the MA-states that it must be "demonstrated" that the alternative
therapy poses a greater risk to a patient's "health or safety" than the traditional
12
Ibid. at ss. 41(1) to 43(4).
13
Ibid. at ss. 44(1) to 51.4.
14
Ibid. at ss. 52(1) to 59.13.
15
"Member" is defined as 11 an individual who is registered on the Manitoba Medical Register,"
and for the purposes of Part VII to XI, includes an "associate member." See ibid. at s. 1.
16
Supra note 7 at ss. 36(1) (a) and (i) and ss. 36(2) (g) and (h) respectively.
17
Manitoba, Legislative Assembly, Standing Committee on Social and Economic Development,
Vol. LVI No. 2 (13 June 2005) at 73, online: .

or prevailing practice. The likely result of the first distinction-the requirement
for "evidence to proven versus the requirement to "demonstrate"-is that it
creates a lower evidentiary threshold for showing the alternative therapy poses a
greater risk to the patient than the conventional therapy, thus enhancing the
scope for removing a physician's licence for administering the alternative
treatment
The second amendment also replaced the risk to patients' ''health" with the risk
to patients' "health or safety", relating to what may be demonstrated when
attempting to show that the physician's use of the alternative therapy posed a
greater risk than the conventional therapy. The effect of this amendment
appears to be significant. First, it provides a wider scope for finding that a
patient has been harmed by the alternative therapy. Second, Mr. Derkach's
original version may be interpreted to mean that, if the alternative therapy
prescribed in the place of a conventional therapy maintained the status quo of
the patient's health without posing a greater risk to their health, even though
the conventional therapy could have improved the patient's medical status,
then it is likely the physician would fall within s. 36.1. escaping professional
discipline. In other words, the use of the words "risk to healthn could be
interpreted such that maintaining, but not improving, a patient's health, is
within the confines of the protection ins. 36.1. By adding the word "safety,"
however, this inference may be more difficult, though still not impossible, to
make, as maintaining the status quo through the use of an alternative
treatment, without enhancing the patient's health despite the existence of a
conventional therapy that could, is more likely to be interpreted by the courts
as impinging on the patient's safety. The addition of "safety" also provides a
more holistic approach to determining whether there are any negative impacts
of the alternative therapy on a patient's wellbeing.
Third, unlike Mr. Derkach's original version, the amendment proposed by
Minister Sale does not contain "regulations and by laws" in the list of provisions
from which a physician is protected from discipline by virtue of s. 36.1. In other
words, whereas Mr. Derkach's version permitted a physician to escape
professional misconduct sanctions despite s. 36, Parts VIII to X, and the
regulations and by....laws, Minister Sale's adaptation, now included in the MA,
only lists s. 36 and Parts VIII to X. The effect of this amendment is also
significant in that, presumably, the Lieutenant-Governor in....Council can pass
regulations delineating the process physicians must follow when prescribing
alternative therapies, and the CPSM can pass by....Iaws and statements affecting

202 Underneath the Golden Boy
the way physicians prescribe "non,traditional" treatments. 18 Some Colleges have
already passed bylaws and statements to this effect. 19
The overall effect of Minister Sale's amendments is that the bill appears to have
been effectively watered down, providing committees of the CPSM and the
courts with an increased ability to find a physician outside the protective
bounds of s. 36.1. This fits with the overall political forces that appear to be at
play with respect to this bill. Since the bill was introduced as a PMB as a result
of what appears to be political pressure from within the sponsoring member's
constituency and from the public, Mr. Derkach would likely have been
advocating for a broad clause that would provide maximum protection to
physicians prescribing non;traditional treatment. Minister Sale, on the other
hand, likely wanted to dampen the potential effects of the bill, evidenced by his
government not introducing the bill (despite similar legislation having been
introduced in other jurisdictions and despite the government's ample
opportunity to have introduced it via government legislation), but also since he
had to balance the perspectives of the College and avoid alienating it 20 as well
as maintaining the utmost concern for patient safety as the Minister responsible
and accountable for health.
In the initial printed form presented by Mr. Derkach, the French version of the
bill did not appear to be different from the English version. The only difference
was that where the English version read that a physician cannot be penalized for
practicing a non.-traditional therapy "unless there is evidence that proves" that
the therapy poses a greater risk to the patient's health than the conventional
therapy, the French version simply stated "unless it is proven." This distinction
did not appear to be materiaL In the final format of the bill as amended by
Minister Sale and incorporated into the MA, there is no distinction between
the French and English versions.
18
Interview of Dr. Bill Pope, Registrar, College of Physicians and Surgeons of Manitoba, by
Theresa Danyluk (3 October 2005) in Winnipeg, Manitoba ["Interview"]; E;mail from Dr.
Bill Pope to Theresa Danyluk (16 November 2005) ["E-mail"].
19
See, for example, the Alberta College of Physicians and Surgeons by ,laws, which may shed
some light on what the CPSM bylaws will look like. College of Physicians and Surgeons of
Alberta, Bylaws of the College of Physicians and Surgeons of Alberta (4 January 2005), online:
College of Physicians and Surgeons of Alberta .
20
Notes from the Frontier Centre for Rlblic Policy, "Patients' Medical Freedom Grows:
Consumers have more access to aLternative remedies" (14 July 2005), online: The Frontier
Centre for Public Policy . The Frontier Centre states that laws equivalent to Bill 207 tend to be proposed by
opposition members since it gives the government of the day cover on controversial issues
by reducing the risk of alienating a powerful group.

III. PRACTICAL CONSEQUENCES OF BILL 207
What this bill talks about is allowing people some additional alternative choices. 21
Bill 207 decriminalizes the most fundamental principle of medicine, first expressed by
Hippocrates. the father of medicine. 2,500 years ago. That principle requires that the
physician explore new ways to treat illness effectively and that this exploration can
only take place within the context of the doctor,patient relationship in which no third
party may interfere. 22
Practically speaking, Bill 207 provides physicians with more flexibility to
practice unon,traditional" or "alternative" health care therapies 23 that differ
from prevailing medical therapies, 24 while eliminating the potential for
professional discipline from the CPSM, unless the non,traditional or alternative
therapy puts the patient's health or safety at a greater risk than the
conventional treatment. Prior to the passage of the MAA, if doctors prescribed
an alternative form of medicine or therapy, they could be subject to disciplinary
proceedings by the CPSM, which could result in the suspension or withdrawal
21
Manitoba, Legislative Assembly. Debates and Proceedings. Vol. LVI No. 30A (14 April
2005) at 1338 (Glen Cummings).
22
Helke Ferrie. Research Co-ordinator, The Glasnost Group and Cos Publishing, cited in
supra note 20.
23
Interview of Dr. Jon Gerrard, Leader of the Liberal Party and MLA for River Heights, by
Theresa Danyluk (5 October 2005) in Winnipeg, Manitoba. Dr. Gerrard explained the
process for determining when a therapy is considered "alternative." In general, it involves
an examination of one or more of the following: whether the therapy has passed the formal
drug-approval process, whether the therapy is approved in legislation and regulations,
whether the use of the therapy complies with applicable standards, whether the medicine is
on the pharmaceutical list, and/or whether medical literature and texts, written and vetted
by experts, hold the therapy out as being generally accepted, subject, of course, to new
research. According to Dr. Gerrard, the Canadian Medical Association (and respective
provincial branches) also produces clinical guidelines on the use of certain therapies, which
may be instructive in this regard.
In supra note 17 (Linda West), Linda West describes an alternative medicine as having "a
messy definition" and states that '[i]t
and what is an alternative medicine today may not be tomorrow. Acupuncture would be a
good example where some would argue that it is an alternative medicine and some would
argue it is not." The Bylaws of the College of Physicians and Surgeons of Alberta defines
''complementary health therapy" as "any form of treatment provided by a medical
practitioner which has not been proven by orthodox scientific methodology and/or
accepted by statutory medical or health authorities as effective for the prevention,
treatment, or cure of any human disease, ailment, physical or mental condition, deformity,
defect or injury ... and may include (1) diet/nutrition/lifestyle changes, (b) mind/body
control, (c) traditional and ethnomedidne, (d) structural and energetic therapies, (e)
pharmacological and biological treatments and (f) bioelectromagnetic applications." See
supra note 19.

204 Underneath the Golden Boy
of their licence to practice medicine. There are numerous examples of this
occurring in several provinces throughout Canada. 25
The broader effect of Bill 207 is that it appears to shift more control of health
services from regulatory health bodies, doctors, and other health providers to
patients, who are ultimately provided with a greater range of health therapies to
choose from (including the potential to choose combinations of conventional
and alternative treatments). The bill also arguably decreases the power of
professional health associations to regulate their members' behaviour. Helke
Ferrie, one of the presenters at the Standing Committee on Social and
Economic Development ("SCSED") that considered Bill 207, argues that the
Manitoba Medical Association's quasi,judicial power to regulate alternative
therapies might have been appropriate in the past, but given the significant
amount of information now available at the public's fingertips, individuals do
not need as much protection from overarching regulatory bodies. Further, she
claims that many "chronically outdated clinical guidelines., have more to do
with agreements with food, drug and insurance companies than with science. 26
These clinical guidelines meant that, prior to Bill 207, physicians could only
prescribe approved treatments, which often are cost,prohibitive. Many of the
MLAs who spoke to this bill in the House, including the sponsoring member,
Mr. Derkach, as well as presenters at the SCSED hearings, claimed that Bill207
could amount to significant savings in an already stretched provincial health
budget. 17 For example, SCSED presenter Harry Morstead, representing Citizens
for Choice in Health Care ("CCHC"), stated that stemming ever,increasing
health care costs necessarily involves keeping patients out of hospitals,
prescribing fewer conventional drugs, and reducing the use of high-cost
technology to diagnose and treat illnesses. 28 Presenter Shoshana Scott, member
of the Manitoba Society of Homeopathic Physicians and a homeopathic doctor,
claimed in committee that homeopathic services affect the sale of
pharmaceutical drugs and alleviate some financial pressures on Manitoba's
health care system. 29 Nathan Zassman presented to the SCSED that the cost to
25
See supra note 17 at 71-72 (Helke Ferrie), where Helke Ferrie presented at the Standing
Committee hearings the detailed the story of a medical doctor who went to China to learn
traditional Chinese medicine including acupuncture. When he returned, he wrote a report
to the Canadian Medical Association on the superiority of treating pain with acupuncture,
and, despite his expertise on the treatment, was subsequently disciplined. Sadly, he
committed suicide. According to this presenter several doctors committed suicide while
they were under investigation by their respective Colleges of Physicians and Surgeons.
26
Helke Ferrie, cited in supra note 20.
21
Supra note 21 at 1339 (Glen Cummings), where Glen Cummings dismisses the argument
that Bill 207 could increase health care costs, and states that, instead, alternative medicine
can be cost-effective.
28
Supra note 17 at 57 (Harry Morstead).
29
Ibid. at 60 (Shoshana Scott).

treat someone with bipolar depression or schizophrenia typically exceeds $400
per month in drug expenses, but some doctors have had equal or better success
with $20 in vitamins. 30 In a written submission, one presenter wrote, "New
drugs and procedures have increased our health care costs dramatically ....
Alternative and complementary therapies would cut these costs dramatically/' 31
IV.THE ORIGIN, INTRODUCTION AND PASSAGE OF BILL 207
1 am extremely pleased that we were able to get to this position on this bill now, Mr.
Speaker, because there are many Manitobans who are today looking at alternative
ways to get medical treatment and to be able to use, perhaps, natural forms of
medication to cure their ills. 32
The impetus for Bill 207 appears to have come from several sources. First, it
appears that several Manitobans lobbied for it over a number of years. 33 Second,
constituents living in the sponsoring member•s constituency lobbied for the
passage of a bill that would facilitate the prescription of chelation therapy. 34
During the second reading of the bill, Mr. Derkach stated:
I did not introduce [Bill 207] because it was something that I had thought about or
thought of. It was introduced because I had a large number of people who had come to
30
Ibid. at 64 (Nathan Zassman).
.n Ibid. at 75 (A. Florence Matthews).
32
Supra note 21 at 1334 (Len Derkach).
33
Ibid. at 1337 (Doug Martindale), where Doug Martindale states: "This is an amendment
that I have some familiarity with because I have been lobbied, as other MLAs have been
lobbied in the past, about this.'' See also ibid. at 1339 (Glen Cummings), where Glen
Cummings states: "I have been approached by constituents, not lobbying for support, but
simply remarking on how their health has been improved by support and by treatment and
by advice that they have received from alternative care practitioners ... [that] this practice
had a positive impact on [their] li[ves], on [their] health." See also supra note 20, where
the Frontier Centre for Public Policy states that legislators appreciate that "... the numbers
of their constituents who seek natural remedies are growing and [becoming] more vocal."
34
Interview, supra note 18. Chelation therapy is a series of intravenous infusions containing
disodium, EDTA, and other substances, used to treat arteriosclerotic heart disease. While
patients feel it is a valid alternative to established medical interventions such as coronary
bypass surgery, many reputable heath organizations, such as the American Heart
Association, the United States Food and Drug Administration (FDA), the National
Institutes of Health, and the American College of Cardiology, believe that to date, there
have been no adequate, controlled, published, scientific studies using currently approved
scientific methodology to support chelation therapy for the treatment of cardiovascular
disease. Further, the FDA has not approved chelation therapy to treat coronary artery
disease. Chelation therapy is, however, a recognized treatment for heavy metal poisoning,
such as lead or mercury poisoning. For more information, see the American Heart
Association, "Chelation Therapy" (2005), online: American Heart Association
.

206 Underneath the Golden Boy
me, asking why it was that in Manitoba a doctor cannot prescribe an alternative form
of medicine....
...I hear from many, many people, and I can cell you I have had dozens and dozens of
phone calls, dozens and dozens of letters and memos, suggesting that we are on the
right track when we are asking that we amend The Medical Act to allow for alternative
forms of treatment. 35
Further, alternative therapies and medications are becoming increasingly
commonplace/ 6 due to, among other things, the increasing availability of
information on non,conventional treatment, the public's escalating occupation
with its wellbeing and its desire to take more control of its health, the rising cost
of conventional health care, and the disadvantages of using traditional
therapies, including their non,effectiveness and detrimental side effects. 37
Finally, other jurisdictions, including Alberta, British Columbia ("BC''),
Ontario, and Nova Scotia have already passed similar legislation. 38
Alberta's Bill 209, the equivalent of Manitoba's Bill 207, passed as a PMB in
April 1996 and amended the Medical Profession Act. 39 According to Harry
Morstead, representing the CCHC at the Committee hearings, legislators felt
that it was of "paramount importance that licensed physicians be allowed to
treat their patients as dictated by their conscience when confronted with
chronic illness." 40 In Alberta, the amendment appears to have worked well, and
according to Morstead, there has only been one case since the passage of Bill
209 where a doctor has been reprimanded for using alternative therapies. 41 The
BC equivalent of Manitoba's Bill 207, Bill M202, passed as a PMB in April 2001
despite significant opposition to the bill by the College of Physicians and
Surgeons of British Columbia. 42 Bill M202 amended the Medical Practitioners
35
Supra note 21 at 1334 and 1336 (Len Derkach).
36
Ibid. at 1335. In particular, Mr. Derkach states "[W]e have moved a great distance in how
we look at natural medications, natural herbs, and natural forms of treatment for certain
things, and if you walk into a pharmacy nday, you will see a whole section in that
pharmacy devoted to natural forms... whether they are vitamins, or treatments..."
37
Ibid.See also supra note 17 at 75 (A. Florence Matthews).
38
Both government bills and private members' bills often arise out of comparable legislation
passed in other provinces.
39
Medical Profession Act, R.S.A. 2000 c. M-11, s. 44(3). The section reads: '!A registered
practitioner shall not be found guilty of unbecoming conduct or be found to be incapable or
unfit to practise medicine or osteopathy solely on the basis that the registered practitioner
employs a therapy that is non-traditional or departs from the prevailing medical practices,
unless it can be demonstrated that the therapy has a safety risk for that patient
unreasonably greater than the prevailing treatment."
40
Supra note 17 at 57 (Harry Morstead).
41
Ibid.
For more information on the College of Physicians and Surgeons of British Columbia's
opposition to Bill M202, see College of Physicians and Surgeons of British Columbia,

1ne LVtemcm 1"\.menamem; 1"\.cr LU1
Act. 43 Much of the bill was subsequently repealed by the newly elected Liberal
government, who introduced new wording. 44
In Ontario, the equivalent ofBill207, Bill2 or the "Kwinter bill," also passed as
a PMB, amending the Medicine Act. 45 Monte Kwinter, a Liberal Member of
Provincial Parliament ('(MPP"), introduced and oversaw the passage of the bill
during the time when the Conservatives formed government. Mr. Kwinter
sponsored the bill after participating in a radio interview where he discovered
that the interviewer, Dr. Jerry Green, was a former doctor who had lost his
licence in a disciplinary hearing by the College of Physicians and Surgeons of
Ontario ("CPSO"), as a result of his use of broad nutritional advice in addition
to standard medicine for cancer patients. 46 The government then commissioned
a study of the CPSO, finding that the CPSO was out of touch with science,
medicine, and patients. Consequently, the bill was brought to the forefront and
passed. The Kwinter bill has been effective in exonerating more than 30 doctors
who went to court for prescribing alternative therapies. As a result, the CPSO
has altered its practices of conducting tribunals and issuing guidelines. 47
"Release to Media: Bill M202-Amendment to the Medical Practitioners Ad' (6 April
2001), online: College of Physicians and Surgeons of British Columbia
< https://www.cpsbc.ca/cps/general_info/communications/press_releases/2004/04/19_04042
61145-390>.
43
Medical Practitioners Act, R.S.B.C. 1996, c. 285.
The bill that repealed Bill M202 was the Miscellaneous Statutes Amendment Act, 2001,
S.B.C. 2001, c. 32 (Billll}. The alternative health therapy provision is found in ibid. at s.
80(2), which states: ((The council or a committee of the council must not act under section
51(4) or (S)(b), 53(7), 59(1) or 60(3) or (8) respecting a member solely on the basis that
the member practises a therapy that departs from prevailing medical practice unless it can
be demonstrated that the therapy poses a greater risk to patient health or safety than does
prevailing medical practice."
45 Medicine Act, S.O. 1991 c. 30, s. 5.1, which states: uA member shall not be found guilty of
professional misconduct or of incompetence under section 51 or 52 of the Health
Professions Procedural Code solely on the basis that the member practises a therapy that is
non-traditional or that departs from the prevailing medical practice unless there is evidence
that proves that the therapy poses a greater risk to a patient's health than the traditional or
prevailing practice."
46
See supra note 17 at 68 (Helke Ferrie), Helke Ferrie submitted that Dr. Green advised his
patient to drink carrot juice and take very high doses of beta carotene. Research at Harvard
Medical School had shown that cancer can, in many cases, be reversed through beta
carotene when given in high doses. According to Ferrie, there have also been Lasker Prizes
and one Nobel Prize awarded in the discovery of how beta carotene \\Orks in cancer
reversaL
41
See ibid. at 72 (Helke Ferrie). The result in Ontario has been, according to Helke Ferrie,
that the Canadian Medical Association and the Ontario Medical Association (OMA) have
now felt "freer to also proceed with teaching courses, and as a result, more doctors are
involved." Ms. Ferrie also described a section of the OMA dedicated to alternative

208 Underneath the Golden Boy
Bill207 was introduced by Mr. Len Derkach, MLA for Russell, as a PMB on 4
December 2003. In presenting the bill to the House, Mr. Derkach stated: "This
bill brings Manitoba in line with several other jurisdictions across this land
where medical practitioners will no longer have to fear reprisal for prescribing
alternative forms of medicine to patients." 48
The MAA sat on the "backburner" for the subsequent two legislative sessions,
but was resuscitated on 14 April 2005, when it was read for a second time by
Mr. Derkach. A broad array of MLAs spoke to the bill this time, including two
Progressive Conservative ("PC") opposition members, two Liberal MLAs, and
one government backbencher. The two PC MLAs commented on the benefits
of Bill 207, and called for its timely passage. While the Liberal members
expressed their support for moving the bill to committee, Dr. Jon Gerrard, MLA
for River Heights, ·and also a physician, impressed some cautionary notes upon
the House. He urged the House to bear in mind the importance of using public
health money only for clearly effective treatments, and he underscored the need
for ongoing and increased funding for health research if the use of alternative
therapies is sanctioned and supported by the government. 49
Not having yet considered Bill 207 in caucus at this point, ihe government
member, Mr. Doug Martindale, MLA for Burrows, took a cautious approach.
He expressed concerns that, if the bill is passed and a number of non....traditional
therapies are thus made legal, the public will potentially lobby the government
to approve these therapies as medical expenses, despite the possibility that some
may not be medically or scientifically proven. Mr. Martindale suggested that
perhaps legislators should alternatively be looking at uwhether or not something
is effective, rather than making an amendment which is applicable to any kind
of alternative therapy that a doctor might say is okay." 50
On 5 and 12 May 2005, Bill207 was once again considered during the weekly
two hours dedicated in the House to Private Members' Business. 51 Ralph
Eichler, the Progressive Conservative MLA for Lakeside, informed the House of
treatments, which used to have 30 doctors whose identities were protected, but now has
are about 400 members whose identities are no longer protected.
48
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LV No. llB (4 December
2003) at 408 (Len Derkach).
49
Supra note 21 at 1341 (Dr. Jon Gerrard).
50
Ibid. at 1338 (Doug Martindale).
51
Since Bill 207 passed, there have been new rule changes such that Private Members'
Business is now considered on Tuesdays and Thursdays, from lOam to 12pm. It is called on
Tuesdays by the Government House Leader and on Thursdays by the Opposition House
Leader.

several personal accounts of success with alternative therapy usage. 52
Subsequent to the bill's passage, Mr. Eichler expressed his utmost support for
the bill by asserting that, "[E]very person should have access to the best medical
products available., 53
Towards the end of the Third Session of the 38[h Legislature, on 9 June 2005,
the Minister of Health, the Hon. Tim Sale, rose to speak to the bill. 54 By
completing the second reading stage and agreeing to move the bill on to
committee, it was clear by this point that the government caucus had met to
discuss the bill and the government was prepared to support it, subject to
passing certain amendments in committee. Minister Sale described the bill as:
[AJ n important bill that... seeks to fmd an appropriate balance between allowing new
procedures to develop in our medica[ care system while protecting both the safety of
patients and the ability of the College of Physicians and Surgeons to reasonably
discipline and hold to account physicians for standards of practice. 55
When the SCSED considered the bill on 13 June 2005, Minister Sale, seconded
by Mr. Derkach, introduced amendments to Bill 207. According to the Hon.
Mr. Sale, the amendments were necessary to achieve the right balance between
(1) permitting the CPSM to function as a self,regulating body and (2)
maintaining patient safety, with the need to (A) introduce new ideas and
procedures and to (B) recognize that: "[T] here are many paths to health and
many sources of wisdom about health." 56
The bill was read for a third and fmal time on 16 June 2005, when, in a showing
of bipartisan support, one member from each of the political parties represented
in the House rose to express their support for Bill 207. Further, they each
commended each other for supporting and overseeing the passage of Bill 207. 57
In his closing comments, Dr. Gerrard, while supportive of the bill, cautioned
that patients must continue to be fully informed of the benefits, risks and status
52
Manitoba) Legislative Assembly, Debates and Proceedings, Vol. LVI No. 42A (5 May 2005)
at 2399 (Ralph Eichler); Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVI
No. 46A (12 May 2005) at 2625 (Ralph Eichler).
53
Interview of Ralph Eichler, MLA for Lakeside, by Theresa Danyluk (6 October 2005) in
54
Winnipeg, Manitoba.
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVI No. 61A (9 June 2005)
at 3445 (Hon. Tim Sale).
55
lbid.
56
Supra note 17 at 73 (Hon. Tim Sale).
57
Supra note 5 at 3667-3670 (Han. Tim Sale, Dr. Jon Gerrard, and Len Derkach). The Hon.
Tim Sale expressed his gratitude to Len Derkach, MLA for Russell, for bringing Bill 207
forward. Dr. Jon Gerrard, the Leader of the Liberal Party and MLA for River Heights,
commended both the Member for Russell for bringing Bill 207 forward, as well as the
Minister of Health for making sure that there were useful consultations respecting the bill
which resulted in minor amendments. Len Derkach expressed a "vote of gratitude to the
Leader of the Liberal Party as well as to the government for supporting this legislation."

210 Underneath the Golden Boy
of any experimental treatment, and that there must be a system developed to
report and document adverse effects of new treatments. In closing, Dr. Gerrard
stated:
[L]et us proceed with this legislation which now matches other western provinces, but
, let us make sure that patients are well informed about what they are being
recommended. Let us make sure that we are doing the appropriate follow-up so that if
there are problems...we identify these early and move to make sure people are aware of
them and look at ways that they can be corrected. With that we will support this
legislation. 58
While acknowledging that the amendment introduced by Minister Sale and
passed at committee had the effect of weakening the bill in its original form, 59
Mr. Derkach acknowledged that, nonetheless, the premise of the bill was
maintained. 00 He also clarified that, in passing this bill, his intention was not to
expand health insurance to cover alternative therapies; rather, his primary and
only goal was to ''avoid doctors [from being] penalized by the College of
Physicians and Surgeons [of Manitoba] simply by prescribing alternative forms
of therapy and medicine." 61
Bill 207 came into force on 16 june 2005, the date it received Royal Assent.
The bill, undoubtedly subjected to much backroom debate and considerable
persistence on the part of the sponsoring member, quietly slipped into
Manitoba's law books, etching itself onto Manitoba's history. Unfortunately,
and perhaps somewhat surprisingly, in-depth research on Bill 207 tiiled to
uncover any media attention on the issue. Some theories on why Bill 207 may
have garnered so little media attention include: the bill appeared as a minor
amendment or one creating an incremental change to existing legislation; the
bill lost the media spotlight to other, more significant, and more controversial
bills that were passed during the same session; the content of the billalternative
health therapies-was not widely publicly appealing; and, since
similar legislation had passed in other provinces, the public perceived its passage
as occurring in due course.
58
Ibid. at 3669 (Dr. Jon Gerrard). Dr. Gerrard echoed the importance of informed decisionmaking
on the part of the patient in an interview on 5 October 2005 in Winnipeg. He also
discussed the importance of the physician informing, rather than telling, the patient
regarding different treatment options and alternatives.
59
See supra note 5 at 3670 {Len Derkach), where Mr. Derkach states: "It certainly is not
where I would have liked to have ended because it still gives considerable amount of
control to the College of Physicians and Surgeons {of Manitoba] to prescribe through
regulation the types of therapies that they would consider to be appropriate."
60
Ibid. at 3669 (Len Derkach).
61
Ibid. at 3670 (Len Derkach).

V. CRITIQUES OF BILL 207
Finding efficacious treatments to deal with these chronic diseases seems, from the
point of view of those suffering these afflictions, to be advancing at a glacial speed. It
appears to us that it is high time to permit physicians to think outside the
pharmaceutical patent medicine box. 62
A minimal number of presenters, eight in total, 63 were present on 13 June 2005
when the SCSED considered Bill 207. 64 Additionally, two written submissions
were presented. While all of the presenters spoke in favour of the bill, some
raised specific concerns with respect to the potential consequences of the bill,
and others focused their comments on broader critiques of the health care
system in Manitoba and elsewhere.
Some presenters expressed support for Bill207 based on its expansion of choice
within the health care system. For example, Harry Morstead, representing
CCHC, an interest group that advocates for more freedom of choice in medical
treatment for patients, stated the importance of releasing "front-line health care
providers ... from the rigid control imposed on them by their colleges," 65 and
informed the committee of his belief that Bill 207 would provide physicians with a
significant and much;needed measure of freedom to prescribe treatments in
accordance with the best interests of the patient. Further, Mr. Morstead
explained that, currently, research on alternative health therapies is limited
since government has turned research over to industry, which has no incentive
to research non.-traditional therapies since they are non.-patentable, and
government has not provided the funding to pursue this research. According to
Mr. Morstead, loosening controls on licensed physicians, thus allowing them to
prescribe non.-traditional treatments, may spur government funding for research
into non.-patentable remedies. Well.-known nursing academic and health
advocate Linda West described the importance of choice in medical care in the
context of two situations where she attempted to find a physician who
prescribed both conventional and alternative treatments for two patients with
62
Supra note 17 at 57 (Harry Morstead, Citizens for Choice in Health Care).
63
The number of presenters for bills ranges from zero, for approximately one-third of the bills
in any given session, to over 200, which occurred for Bill 67, introduced in 1996, regarding
the privatization of Manitoba Telephone Services. According to the estimates of the
Committees Clerk, Rick Yarish, if there are 60 bills that go to committee in a session,
approximately 20 will have fewer than five presenters, 10 will have between five and 10
presenters, five will have between 10 and 20 presenters, and five will have between 20 and
50 presenters.
64
The Members of the Standing Committee on Social and Economic Development present
included: Hon. Mr. Sale, Mr. Aglugub, !vk. Brick, Mr. Derkach, Mr. Dewar, Mr. Eichler,
Mr. Jennissen, Ms. Korzeniewski, Mr. Martindale, Mr. Penner, and Mrs. Stefanson. Mr.
Lamoureux was also present.
65
Supra note 17 at 57 (Harry Morstead).

212 Underneath the Golden Boy
specific disease modalities requiring conventional and alternative care. After
calling the CPSM to no avail, Ms West concluded that one must go
"underground" in order to find a doctor who could assist patients in these types
of situations. 66
Several people who presented to the SCSED represented the perspectives of
those who subscribe to and support naturopathic or holistic medicine.
Presenters representing the Manitoba Society of Homeopathic Physicians
expressed concerns with regular MDs prescribing alternative therapies, and they
stated that their only interest is that doctors are properly trained to use
alternative medicines. It is interesting that the homeopathic community did not
take a specific, strong stand against Bill 207 since it could be seen as
encroaching on their fi.eld. 67 However, it must be recognized that this bill gives
their profession recognition and credibility, and acknowledges the importance
of choice in health care, something that this community likely supports.
Many of the presenters spoke to the pre Bill 207 situation, where, without the
protection of Bill 207, many physicians allegedly avoided prescribing alternative
therapies and medications, even though they believed that these would have
been more effective than conventional practices, out of fear of reprisals from
their respective provincial Colleges of Physicians and Surgeons. 68 Further, one
presenter, in his support of the bill, devoted the significant portion of his
presentation to discussing the safety of alternative medicine over
pharmaceutical drugs. 69
Despite their concerns related to Bill 207 as it relates to patient safety, the
CPSM did not officially take a position on the bill. 70 Dr. Bill Pope, the Registrar
for the College, stated that the College was not overly concerned with Bill 207
since similar legislation had already been passed in other jurisdictions, in
addition to the fact that, generally, fewer physicians prescribe alternative
therapies in Manitoba than in other provinces such as BC. However, Dr. Pope
66
Ibid. at 61 {Linda West).
67
In this regard, Shoshana Scott, who is a part of the Manitoba Society of Homeopathic
Physicians, stated in committee that she was there "on behalf of the Manitoba Society of
Homeopathic Physicians because we are very excited to collaborate with this committee
and with the members who are willing to work with the medical system to be part of the
process, planning and strategi.zing how to integrate alternative medicine in our system of
health care." See supra note 17 at 59 {Shoshana Scott).
68
Ibid. at 63 (Nathan Zassman). Mr. Zassman states: "I know there are many doctors in
Winnipeg that would be interested in blending nutritional and orthomolecular therapies
into their practice, but many of these doctors remember past doctors who have lost their
licence and had to leave this province to practise elsewhere, so their fear prevents them
from approaching their craft in a holistic, natural way."
69
Ibid. at 6.3-64 {Nathan Zassman).
70
lntelView, supra note 18. As Dr. Pope states, "The College did not specifically take a
position on this bill-while we were not wildly for it, we decided we would not oppose it."

stresses that the College has two primary concerns in light of the passage of Bill
207: (1) that patients may choose to forego more helpful conventional therapy
by choosing to proceed with the alternative one, and (2) that vulnerable
patients may be convinced to spend significant amounts of money on
alternative therapies that are not effective. The College has other concerns with
Bill 207, such as the risk of overwhelming already,taxed physicians with
additional prescription alternatives. 71 The CPSM is on the verge of enacting by..
laws, similar to those enacted in other jurisdictions such as Alberta, that would
etch out a comprehensive process that doctors must follow when prescribing
alternative therapies, in light of the changes presented by s. 36.1. 72
It is interesting to note that no presenters and no MLAs took a firm stand
against Bill 207. The bill could be heavily critiqued on the basis that the
wording of the bill may be interpreted such that if a physician prescribes a
harmless yet ineffective alternative therapy in the place of an effective
conventional therapy, although the alternative therapy does not pose any
immediate risk to the patient, the patient could be made worse off since the
conventional therapy would have improved the patient's situation. However,
there appear to be safeguards that could prevent this outcome. First, it is open
to disciplinary committees, as well as the courts, to interpret the words "risk"
and upatient's health and safety,. to encompass the situation described above.
Also, as Dr. Pope points out, doctors' conduct which "preys on a vulnerable
patient may also be detrimental to the patient's health and safety," 73 thus falling
outside the protective bounds of s. 36.1 of the MA. Further, in spite of Bill 207,
doctors continue to have common law tort duties, such as a general duty of care
owed to patients and the duty of informed consent (which includes fully
informing patients of the advantages and disadvantages of various treatments
options). 74 While Bill 207 now allows doctors to include alternative or non..
traditional treatments in the array of prescription possibilities they propose to
their patients, administrative tribunals and courts will continue to assess
doctors' behaviour in these circumstances against an objective standard,
71
When asked by Jack Penner, MLA for Emerson, what the College of Physicians and
Surgeons of Manitoba (CPSM) might fear by allowing alternative treatments to be
prescribed in Manitoba, Nathan Zassman stated that it could be related to the CPSM losing
some regulatory control over doctors. See supra note 17 at 64.
72
Interview, supra note 18. Similarly, the Hon. Tim Sale stated at supra note 5 at 3667 that
11
now there will be... the evolution of guidelines and procedures to ensure that the intent of
the btll which is to allow new practices to emerge and to be appropriately tested without
the practitioner being in jeopardy by virtue of simply using a new procedure which is not
harmful and maybe of more benefit than traditional procedures. I think we will see an
evolution of the kind of appropriate guidelines that patients need for their safety."
3
7
E.-mail, supra note 18.
74
Ibid. For tort duties imposed on doctors, see for example, Reibl v. Hughes, [1980] 2 S.C.R.
880, 114 D.L.R. (3d) 1.

214 Underneath the Golden Boy
considering whether their actions and explanations to the patient were
reasonable in light of what a reasonable person in the patient's situation would
want to know and would understand. Finally, Dr. Pope points out a final
safeguard: yet.-to--be,drafted CPSM guidelines, which will set out a
comprehensive procedure doctors must follow in order to prescribe alternative
treatments and to minimize any potential dangers to patient safety. 75
VI.THE BROADER POLITICAL CONSEQUENCES OF Bll..L 207
We feel that this bill is a good initiative that has been brought forward to the
Legislature in an apolitical fashion. 76
We are the vehicles of these people, Mr. Speaker. We are the ones who are supposed
to bring the message from out there into this Chamber and to affect change. In that
regard, I think we have allowed this to happen. 77
Does the passage of Bill 207, a private members' bill supported by all elected
members in the Manitoba Legislature, represent a "new trend" in Manitoba
politics, such that provincial legislators appear increasingly willing to put aside
political ideology in order to legislate in the public's interest 78 Or, was the
passage of Bill 207 related to other factors, such as the position and influence of
the opposition member who sponsored it, the subject matter of the bill, or
government-sponsored amendments that made the bill more palatable to the
government, and so on
It makes sense to begin from a starting point of why Bill 207 arose as a PMB. It is
interesting to speculate why the government did not introduce this bill
(similar to other provinces in which this sort of legislation has also arisen as a
PMB). Perhaps the Manitoba government was concerned that permitting
doctors to prescribe alternative therapies would provide patients with a choice
of treatment, would introduce notions of "two,tier" medicine, and would open
up the debate on choice in health care. It is fairly safe to say that Manitoba's
current government appears adamantly opposed to privatized health care per se,
although there appears to be a mix of public and private health service delivery
in this province as in many others. Glen Cummings, opposition MLA for Ste.
Rose, alluded to this in his comments during the second reading of Bill 207,
when he packed a "political punch" by stating that "[w]e do have a mix of [a]
public private system, and alternative medicine [as encompassed by Bill 207]
75
Ibid.
76
Supra note 21 at 1336-37 (Kevin Lamoureux).
77 Supra note 5 at 3670 (Len Oerkach).
78
The two Liberal MLAs also supported Bill 207. See supra note 21 at 1336-37 (Kevin
Lamoureux), supra note 54 at 3446 (Kevin Lamoureux), supra note 5 at 3667-3669 (Or.
Jon Gerrard), and supra note 17 at 73 (Kevin Lamoureux).

would be an extension of that." 79 Rick Mantey, the former Secretary to the
Legislative and Regulatory Review Committee of Cabinet and Special Advisor
to the government House Leader, also states that this kind of "progressive"
legislation does not appear to be typical of the cautious government currently in
place.&) Further, whereas the "freedom of the opposition" allows opposition
members to introduce bill containing (radical) policy ideas, governments
generally avoid departing too drastically from the current regime in place. 81
MLA Doug Martindale's comments during the second reading of Bill 207 also
shed some light on why the government may not have taken the lead in passing
this bill. Mr. Martindale warned that, in other provinces where equivalents to
Bill 207 have been passed, individuals have subsequently successfully lobbied
the government to have several alternative therapies approved as medical
expenses. 82 He expressed concerns that the Province could be persuaded or
forced into footing the bill for an increasing number treatments, medications
and therapies, some of which may not be scientifically proven to be effective. In
this regard, Mr. Martindale suggested a possible alternative to Bill 207:
Maybe we need to look selectively at whether or not something is effective, rather than
making an amendment which is applicable to any kind of alternative therapy that a
doctor might say is okay. 83
There are other possibilities why the government did not introduce Bill 207. For
example, the government may have been concerned with offending the medical
profession generally and the CPSM in particular, and may have feared that the
passage of this type of legislation could lead to increased public pressure to
cover as medical expenses services provided by alternative health care
providers, such as chiropractors, acupuncturists and homeopaths. Finally, the
government may have desired the ability to maintain the argument that the
opposition was responsible for the introduction and ultimate passage of Bill 207,
in the event that there are unfavourable public or political consequences
related to the bill. 84
79
Supra note 21 at 1339 (Glen Cummings).
80
Interview of Rick Mantey by Theresa Danyluk (29 September 2005) in Winnipeg,
Manitoba.
81
Supra note 23.
82
Supra note 21 at 1337-38 (Doug Martindale). For example, this occurred with respect to
chelation therapy in Alberta, where Mr. Martindale stated ic: is now approved as a medical
expense.
83
Ibid. at 1338 (Doug Martindale).
B+ This argument likely would not be given much weight by interested individuals, however,
since the government voted in favour of Bill 207.

216 Underneath the Golden Boy
The passage of a private members' bill is indeed a rarity in present.-day
provincial politics. 85 Whereas in the 1950s and 60s PMBs were frequently used
to advance policy issues and introduce amendments to legislation, PMBs in
recent history appear to have significantly declined as a serious and viable policy
tool. 86 Rick Mantey hypothesizes that this is generally due to the fact that
individual MLAs no longer receive as much media and public attention as they
once did, the public is in general disinterested in politics, and the opposition
typically receives more media and public attention from other procedural
avenues such as Question Period and the Estimates process. 87 Further, the
decline in the use of PMBs may be specific to the makeup and character of the
Legislature. For example, depending on the political forces of the day and the
political make.-up of the Legislature, MLAs may prefer to spend as much time as
they can in their constituencies rather than preparing bills at the Legislature.
Mr. Mantey suggests the relative decline in the use of PMBs on the part of
Manitoba MLAs to drive important legal and policy issues to the fore is
unfortunate for Manitobans. It is not a significant expense to draft bills and
qualified legal staff exist to assist MLAs in this regard. Further, if an opposition
party is reactionary, that characteristic could carry through when it becomes
government. However, opposition parties must also remain cautious when
pushing forward with PMBs, as the public in general could expect them to pass
similar legislation if and when they form government.
As Bill 207 proceeded through the House, members appeared generally
sceptical that it was going to be passed. For example, Doug Martindale, a
government backbencher, stated during the bill's second reading that:
Certainly, it would be very unusual for a private members' bill to pass.... [O]pposition
members' bills almost never pass, almost never make it to the committee stage.... I can
assure you that they do not get passed very often.... So just a little reminder there
about what the history and tradition of private members' bills are. 88
Similarly, at committee, Mr. Derkach stated: "It is not often that a member of
the opposition can have a bill come to this stage in the Legislature." 89
For these reasons, many see the passage of Bill 207 as a significant feat.
Following its passage, the Frontier Centre for Public Policy stated that its
"bipartisan passage demonstrates that our politicians can share noble moments
85
See attached Tables: Table 1 ( 11 History of Introduction and Passage of Private Members'
Public Bills in Manitoba, 1992-2005") and Table 2 {"Sponsors, Titles and Passage of
Private Members' Public Bills Passed in Manitoba, 1992-2005").
86
Supra note 80.
61
Ibid.
88
Supra note 21 at 1338-39 (Doug Martindale).
s 9
Supra note 17 at 71 (Len Derkach).

when public glare does not intrude." 90 Further. the Hon. Gord Mackintosh, the
Minister of Justice and Attorney General and government House Leader at the
time of the passage of Bill 207, stated that. 11 When there are proposals that the
government finds in the public interest, I think there is a more recent
developing interest to work together and get proposals moving., 91 Minister
Mackintosh stated that during his experience as an opposition MLA from
1993-99, the government would tum down opposition proposals and opposition
PMBs outright. However, during his time in government, he states that, while
his caucus will not support PMBs that are "clearly flawed," they will genuinely
consider PMBs worthy of serious consideration, 92 and will ultimately support
those PMBs they can agree with. 93 According to Minister Mackintosh, Bill 207
had "strong merits" and was thus worthy of government support.
In the end, an assessment of the passage of PMBs necessarily involves a
consideration of several factors. including, but not limited to, the substance of
the bill; the political climate of the day and the timing of the bill; the status,
position and influence of the sponsoring member; the level of public support for
the bill; the support of the caucus of the sponsoring member; and, whether any
amendments are being considered or have been passed. Therefore, it is
impossible to state with any measure of certainty whether or not a PMB, though
on its face appearing to be generally reasonable and acceptable legislation, will
make it through the "halls of power" and land in Manitoba's law books. Based
on an assessment of the dismal record for the passage of PMBs over the past
decade and a half, in addition to the passage of two PMBs in as many years, it is
possible that the current administration may be in some way facilitating the
passage of PMBs, whether through "passive, means, such as government
support of specific pieces of legislation it agrees with, or through deliberate
cooperation with the opposition to ensure an increasing amount of legislation
introduced by opposition members becomes law. However, in spite of the
current House Leader's comments regarding the government's willingness to
cooperate with the opposition MLAs to facilitate the passage of PMBs, it is too
early to come to an independent conclusion whether this is the beginning of a
90
Supra note 20.
91
Supra note 1.
92
For example, Minister Gord Mackintosh, in ibid., stated that Bill 208, The Child and Family
Service Amendment Act (Grandparent Access) , a private members' bill introduced by Child
and Family Services critic and opposition MLA Leanne Rowat that did not pass, las
recently been assigned to government MLA Andrew Swan, who will examine it more
closely.
93
Ibid. It is important to note that this is largely a political exercise, so there may be private
members' bills that the public generally would deem meritorious and that garner a
significant level of public support, but the government is not prepared to support them for
(undisclosed) political reasons.

218 Underneath the Golden Boy
new trend of cooperation at the Manitoba Legislature or simply a combination
of other factors including coincidence. Only time will telL
VII. CONCLUSION
The passage of Bill 207 was an exceptional occurrence-it was one of only four
private members' bills passed out of 141 PMBs introduced over the past 15
legislative sessions. Although only a small amendment, the bill has significant
consequences in terms of providing physicians with a rreasure of protection
from professional discipline in the event that they prescribe alternative
treatments outside the scope of conventional therapies, so long as those
treatments do not pose a greater risk to a patient's health or safety than
conventional therapies. The bill effectively addresses some of the concerns of
physicians and members of the public that doctors could be reprimanded by the
College of Physicians and Surgeons of Manitoba for using therapies not
"conventionally" administered. Bill 207 is also significant for achieving passage
through the Legislature as a PMBt and for potentially signalling a new trend in
the Legislature whereby government politicians are giving renewed attention
and consideration to policy and legislative proposals brought forward by
opposition politicians.

Appendix: Private Members' Public Bills in Manitoba
Table 1:History of Introduction and Passage of Private Members' Public Bills in Manitoba, 1992-2005
Legislative Session
Total Number of Private Members'
Public Bills Introduced
Outcome of Private Members' Public Bills Introduced
2004-05 11 • 1 bill passed (Bill 207)
• 1 bill ruled Out of Order
2nd Sess., 38th Leg., 2003-04 14 • 1 bill passed (Bill 202)
• 2 bills to be reinstated (Bill 207, The Medical Amendment
Act and Bill 212, The Pension Freedom Act)
1sr Sess., 3&h Leg., 2003 0
4th Sess., 37rh Leg., 2002-03
9 (3 not printed)
3rd Sess., 37th Leg., 2001-02 4 • 1 bill to be reinstated (Bill 204, The Smoke,Free Places
Act) 1
zni! Sess., 3Th Leg., 2000-01 2
pt Sess., 3h Leg., 1999-00 2
Bi11204, The Smoke, free Places Act, was subsequently passed via government legislation.

Legislative Session
5th Sess., 36th Leg., 1999
4 1 h Sess., 36rh Leg., 1997-98-99
Total Number of Private Members'
Public Bills Introduced
4 (1 not printed)
5 (1 not printed)
Outcome of Private Members' Public Bills Introduced
3rd Sess., 36th Leg., 1997
2nd Sess., 36th Leg., 1995-96
pt Sess., 3&h Leg., 1995
6rh Sess., 35th Leg., 1994-95
8 (3 not printed)
5 (not proceeded with)
12 (5 not printed)
22 (10 not printed)
5th Sess., 3Yh Leg., 1994
26 (13 not printed)
• 1bill (Bill206)
4th Sess., 35th Leg., 1992-93-94
TOTAL
28 (17 not printed)
141 (53 not printed)
• 1 bill passed (Bill 212)
• 1 bill ruled Out of Order
• 4 bills passed
• 2 bills ruled Out of Order

Table 2:Sponsors, Titles and Passage of Private Members' Public Bills Passed in Manitoba, 1992..2005
Member of the Legislative Assembly
("M.L.A.") and
Political Party of Bill's Sponsor
Bill Number and Title
Date of Royal Assent
Mr. Len Derkach
M.L.A. for Russell
Progressive Conservative- Opposition
Mr. Stuart Murray
M.L.A. for Kirkfield Park and Leader of
the Official Opposition
Progressive Conservative - Opposition
Mr. Gerry MacAlpine
M.L.A. for Sturgeon Creek
Progressive Conservative- Government
Mr. JohnS. Plohman
M.L.A. for Dauphin
NDP Opposition
Bill 207:The Medical Amendment Act 15 June 2005
Bill 202:The Nellie McClung Foundation Act 04 December 2003
Bill 206:The Coat of A1Tf1S, Emblems and the Manitoba Tartan Amendment Act 05 July 1994
Bill 212:The Dauphin Memorial Community Centre Board Repeal Act 27 July 1993
Source: Manitoba, Legislative Assembly, Journals, Appendices "C" and "D" from 4th Sess., J,Sth Leg., 1992-93-94 to ya Sess., 38th Leg., 2004-05.

Bill 17, The Securities Amendment Act
JASMINDER BRAR
I. INTRODUCTION
B
ill 17, The Securities Amendment Act, 1 was given Royal Assent in the
Manitoba Legislature on 13 June 2006. Bill17 went through its life cycle
in a relatively short period of time considering the vast amount of
amendments it proposed. It was introduced for first reading on 22 November
2005 and given Royal Assent in less than seven months. Bill 17 moved quickly
because its readings in the legislature and the parliamentary committee meeting
where it was reviewed were but formal steps in a process that had started long
before.
Bill 17 introduced amendments to the existing Securities Act 2 as a part of an
overall scheme set in place by 12 provinces and territories to make
improvements to the securities regulatory framework in Canada. 3 In recent
years, there has been heated debate in this country over whether our securities
framework should be overhauled to resolve the differences between the many
regulatory bodies in the industry and whether a more uniform securities market
should be created. In 2003, the provinces and territories implemented the
Provincial Territorial Securities Initiative to begin the process of harmonizing
securities laws across the country. 4
Billl7, The Securities Amendment Act, 4rb. Sess., 38th Leg., Manitoba, 2006.
R.S.M. 1988, c. 850, C.C.S.M. c. S50.
These include: British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New
Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon,
Northwest Territories, Nunavut Ontario is the sole non signatory to the provincial
initiative agreement See ProvinciaTerritorial Securities Initiative, Reform of the Current
Canadian Securities System, online: Provincial,Territorial Securities Initiative
.
Quebec Minister of Finance, News Release, "Securities: Provinces and Territories Agree to
Complete the Project to Reform the Current Regulatory System" (17 July_ 2003), online:
Portail Quebec .

224 Underneath the Golden Boy
The Securities Amendment Act 5 is only part of the harmonizing process, but it is a
significant portion nonetheless because without uniformity of provincial and
territorial laws, a more uniform securities market with fewer regulatory barriers
will not be realizable. This paper wiU analyze the driving factors that led to
changes to the Securities Act and the role these changes play in the overall
scheme of securities regulation in this country.
II. REASONS BEHIND THE AMENDMENT
A. The Securities Market in Canada
1. Securities regulation: the traditional approach
To understand the reasoning for reforming the Securities Act, one must
understand how securities are regulated in Canada. Although the Canadian
Constitution does not explicitly assign the rights of securities regulation to the
provinces or the federal government, securities have traditionally been
regulated independently by each province and territory. 6 Securities regulators in
each province and territory have been responsible for prospectus reviews,
ensuring continuous disclosure by companies, regulation of traders,
enforcement of the regulations, and public education. Any company that
wanted to get involved in the securities market in Canada had to--prior to the
harmonization process-meet the requirements for each province or territory it
chose to do business in.
This may have been of little concern in the past, but overhead costs associated
with independent provincial securities regulations have been rising as
companies increasingly conduct business across provincial and national borders.
As a result, key stakeholders have been very active in securities regulatory
reform. Different parties have different views on this matter but they share the
goal of reducing regulatory barriers to make the securities industry more
transparent.
2. Recent developments in securities regulation
In recent years every Canadian province and territory, as well as their respective
securities regulatory authorities, has made significant progress towards a more
harmonized securities regulatory framework. The Canadian Securities
Administrators ("CSA"), an agency made up of all of the provincial and
S.M. 2006, c. 11 [the Act].
The Constitution Act, 1867 (U.K.), 30 & 31 Viet., c. 3, s. 92(13), reprinted in R.S.C. 1985,
App. II, No. 5, grants the provinces nproperty and civil rights" legislating power while s.
91(2) grants the federal government the power to legislate in respect to 11 trade and
commerce".

territorial securities regulatory authorities, has set a goal of harmonizing rules
across the country. 7 In 2003, the provinces and territories set up the Provincial
Territorial Securities Initiative to coordinate the harmonization process, which
lead to The Securities Amendment Act in Manitoba as well as in other provinces
and territories. 8
Some of the early reforms that were set in place include the Mutual Reliance
Review System \'MRRS") and the System for Electronic Document Analysis
and Retrieval ("SEDAR"). 9 Both were incorporated by the provinces and
territories early in the 1990s. MRRS allows for one securities regulator to be
designated the "principal regulator" which then reviews the prospectus of the
company wishing to issue shares. 10 Other jurisdictions simply rely on the
analysis and review of filings by the principal regulator. This allows the shares
issued under the approved prospectus to be sold across Canada. Guidelines for
continuous disclosure are set out in SEDAR, which requires insiders to file
securities disclosure documents only once to comply with the insider reporting
obligations of all securities regulators. 11
Recent developments include the creation of the National Registration
Database ("NRD") and the System for Electronic Disclosure by Insiders
("SEDr'). NRD, an initiative of the CSA and the Investment Dealers
Association of Canada 'IDA''), is a web.-based system that allows individual
investment dealers and advisers to file securities registration forms
electronically. 12 SEDI, also a web based tool, complements the previously
established SEDAR by facilitating the filing and public dissemination of insider
reports in electronic format. 13
The CSA has also been actively working on the Uniform Securities Legislation
("USL'') project, which proposes amendments to securities laws and rules to fill
10
11
Canadian Securities Administrators, About the CSA, online: Canadian Securities
Administrators .
Supra note 3. Ontario did not agree to the passport system memorandum of understanding
of the Provincial-Territorial Securities Initiative and therefore is not amending its Securities
Act as other provinces and territories have done or will be doing. See Ontario's View at page
228 of this paper.
SEDAR, Background on SEDAR, online: SEDAR .
Alberta Securities Commission, National Policy 12-201: Mutual Reliance Review System for
Exemptive Relief Applications, online: Alberta Securities Commission at 12.
Canada, Parliament, Parliamentary Information and Research Service, "Reforming
Canadian Securities Regulation" in Library of Parliament, No. PRB 05-28E (19 September
2005) at 7.
12
Ibid. at 8.
13
See SEDI website: .

226 Underneath the Golden Boy
in the remaining differences between the laws. Launched in the spring of 2002,
the USL project provides the provinces with model legislation containing
clauses and definitions that the CSA believes should be common across all
provinces and territories. 14 The change to securities laws made by The Securities
Amendment Act is Manitoba's first step toward compliance with the USL
project, but further changes will be required to meet the CSA's proposals.
B. Options for Securities Regulatory Change
All stakeholders appear to agree that barriers should be reduced through
changes to securities regulation in Canada but there are differences of opinion
as to how that goal should be implemented. The two basic options for securities
regulatory reform are:
• A national securities regulator; or
• An interprovincial securities agreement.
From a government perspective, Ontario and the federal government back the
option of a national securities regulator, while every other province and
territory is calling for an interprovincial framework.
1. Interprovincial agreement: the Passport System
The ProvincialTerritorial Securities Initiative is the driving force behind the
passport model to securities reform. The goal of the ministers involved in the
initiative is to put in place a provincial/territorial framework that:
[l]nspires investor confidence and supports competitiveness, innovation and growth
through efficient, streamlined and cost-effective securities regulation that is simple to
use for investors and other market participants. 15
The passport system would:
[E]nsure that issuers and registrants (firms, brokers, etc) can access markets all across
Canada, by complying with the legislation in force under, and by dealing with, only one
authority, their primary jurisdiction. 16
The passport system proposes a single window of access to market participants
through mutual recognition or legal delegation. Under legal delegation, host
jurisdictions would delegate powers to make decisions to the primary
jurisdiction. Mutual recognition would allow participating jurisdictions to
recognize market participant credentials that have complied with regulatory
requirements of the primary jurisdiction.
14
Canadian Securities Administrators, Blueprint For Uniform Securities Laws For Canada,
online: Alberta Securities at 4.
15
Provincial-Territorial Securities Initiative, supra note 3.
16
Supra note 4.

The primary jurisdiction is defined as the province or territory to which a
market participant is most closely connected. In most cases the primary
jurisdiction for an individual registrant will be the jurisdiction in which the
individual's normal working office is located; for a non,individual registrant it
will be the jurisdiction in which the registrant's head office is located; and for an
issuer it will be the jurisdiction in which the issuer's head office is located. 17
The host jurisdiction for the issuer is the province or territory in which the
securities are being distributed/offered or where the issuer is a reporting issuer.
The host jurisdiction for a registrant is where the registrant is providing
trading/advising services and which is not the registrant's primary jurisdiction. 18
For issuers, the passport system will initially include: 19
• Prospectus requirements and clearance;
• Prospectus and registration exemptions;
• Continuous disclosure requirements; and
• Routine discretionary exemptions.
For registrants, the passport system will initially include: 20
• Registration process, requirements and related filings; and
• General and routine discretionary registration exemptions.
The passport system also builds on investor protection by maintaining existing
protection or enhancing protection to investors through higher and consistently
applied standards. 21 Individual provinces have discretionary power to introduce
legislation for further investor protection. With the implementation of the
passport system, investors will still be able to continue to bring legal actions in
their own jurisdictions, regardless of the primary jurisdiction.
Enforcement of securities laws will be carried out by a co,operative effort
between the primary jurisdiction and the host jurisdiction. After receiving a
complaint and a preliminary assessment of the situation, the host jurisdiction
17
See Provincial-Territorial Securities Initiative, A Provincial{ferritorial Memorandum
Regarding Securities Regulation, online: Provincial-Territorial Securities Initiative [MOU]. AU participating
jurisdictions are not required to act as a primary jurisdiction. The primary jurisdiction's
responsibility to regulate all or certain market participants can be assigned or delegated to
another participating jurisdiction, with the agreement of the delegate: sees. 5.8. Also, each
minister can cease the primary jurisdiction recognition if he or she believes the jurisdiction
is not using its reasonable best efforts to abide by the MOU) or its regulatory scheme has
fallen below an acceptable standard: see s. 5.9.
18
Ibid. at s. 1.1.
19
Ibid. at s. 5.3.
20
Ibid. at s. 5.4.
21
Ibid.at s. 2.1.

228 Underneath the Golden Boy
would pass on its findings to the primary jurisdiction. The primary securities
regulator may, after conducting an investigation, undertake enforcement action
or refer the matter back to the host jurisdiction for enforcement. 22
Although the goal is harmonization, the passport system does allow for local
and unique initiatives. In doing so, a minister is to consider: 23
• Whether the initiative is necessary to meet a policy objective;
• How the impact on other jurisdictions would be minimized;
• How the impact on the efficiency of the provincial/territorial passport
framework would be minimized; and
• Making the measure subject to regular reassessment to ensure the
integrity of the passport system is maintained.
The end result of the passport system is that it allows for harmonization of
securities laws while still allowing each province and territory to independently
maintain ultimate control over their respective securities markets. While it
provides local authorities with a degree of autonomy, the aggregation of
separate passport systems creates a larger regulatory regime for registrants and
issuers.
2. Ontario's view: a national regulator
Ontario, home to Canada's largest securities market, has an influential role in
securities reform in Canada. The province,
[E]nvisions provinces and territories working together to move to a new securities
regulatory framework that features a common securities regulator, a common body of
securities law and a single fee structure. 24
This is in contrast to the passport system, where all jurisdictions retain the
authority to set and collect fees. 25 Under the passport system, each province
would maintain its own securities regulator and securities laws with no
guarantee of uniformity in the future. This is also problematic because the
existence of 13 securities regulators in Canada fails to address the absence of a
single window of access for foreign market players. 26
22
Ibid. at s. 5.6.
23
Ibid. at s. 5.10. Interestingly, the ability to make local rules is one of the arguments against a
provincial regulatory scheme.
24
Government of Ontario, News Release, "Ontario's proposal-Modernizing Securities
Regulation in Canada" (24 June 2004), online: Ministry of Government Services
.
25
MOU, supra note 17 at s. 5.11.
26
Ibid. at s. 5.12. Ministers request securities regulators to establish a single window of access
by having one jurisdiction act as the primary jurisdiction.

Ontario wants the common regulator to be an entirely new agency instead of
having 13 separate agencies. While all provinces have banded together to form
the Provincial,Territorial Securities Initiative, Ontario disagrees with the
initiative's recommendations and it is not a signatory to the passport system
Memorandum of Understanding ("MOU,) presented to the provinces on 30
September 2004. 27 Ontario believes the passport model does not go far enough
to address the concerns of national and international issuers and registrants
and, "[T]hat it may in fact delay the move to a common regulator by diverting
resources and slowing momentum. 1128 Ontario continues to endorse the idea of a
single national securities regulator because it does not believe in what it calls
the fragmented structure of the passport system. 29
The Wise Persons' Committee ("WPC,.) established by the federal government
and composed of industry professionals from across the country presented a
report on securities regulation in December 2003 entitled It's Time. 30 The report
calls for a national securities regulator. It states that uthere was a time when
Canadian businesses seeking to raise capital were primarily located in the same
region as the investors who bought their securities." 31 At that time investors
were "well served by a provincially based regulatory structure" but as capital
markets have become increasingly national and international, Canada's
securities regulatory industry must change. 32 Although the report finds some
benefits resulting from the passport system, including the reduction in the
number of securities regulations that market participants must comply with and
the satisfaction of local needs, the report concludes the passport system does
not go far enough to address most securities regulation issues. For example, the
report indicates the passport system does not significantly improve enforcement
because it lacks central coordination. 33 In addition, the report indicates a major
weakness of the passport system is its failure to maximize cost savings and
efficiencies. With 13 separate regulators there is still a need for market
participants to pay fees in each jurisdiction even though they might deal with
only one regulator. With a provincially controlled passport system there is also a
risk of instability because nothing prevents any jurisdiction from opting out of
27
Ibid.See also supra note 3.
28
Government of Ontario, News Release, "Towards a Common Securities Regulator For
Canada" (28 June 2006), online: Ministry of Government Services .
29
Ibid.
30 Wise Persons' Committee, It's Time (Committee to review the structure of securities regulation
in Canada), (Distribution Centre: Department of Finance Canada, 2003}, online: Wise
Persons• Committee < http://www.wiseaverties.ca/reports/WPC%20Final.pdf>.
31
Ibid. at vii.
32
Ibid.
33
Ibid. at 55.

230 Underneath the Golden Boy
the agreement. With a passport system. Canada's standing in the international
capital market as being overly regulated would not change. as 13 separate
regulators would still exist for a country with less than 3% of the world's capital
markets. 34
In addition to the WPC report, Ontario commissioned a Five Year Review
Committee on the Ontario Securities Act, 35 which also recommended that all
levels of government work toward the creation of a national securities regulator.
The final report of the committee stresses "the need for a single, coordinated
approach to securities regulation in Canadan and notes that "a nation that
commands only two per cent of the global economy suffers daily from a
regulatory regime which is comprised of 13 separate regulators.,. 36
The latest committee to issue reports in agreement with Ontario's view is the
Crawford Panel, which issued reports in December 2005 37 and June 2006. 38 The
panel calls for one national securities regulator as a means of enhancing
"market efficiencies and Canada's economic competitiveness." 39 The reports
also call for respect for provincial "expertise. specialized knowledge and
professionalism.. within a new national regulator. 40 The Crawford Panel has
established a blueprint for a national securities regulator that is endorsed by the
Ontario and federal governments.
The Ontario Securities Commission ("OSC"), the largest securities regulator in
Canada, also supports the idea of a single national securities regulator. It cites
shortcomings with the current system, such as increased costs for issuers and
investors, regulatory burdens, and the unattractiveness of the Canadian
securities market. Commenting on the WPC's fmal report, David Brown, chair
of the OSC, cites a study by the IDA showing that a national regulator would
save issuers and investors $73 million a year directly. 41 Mr. Brown also states
that market participants have emphasized the need for efficiency and reduced
34
Ibid. at 56.
35
R.S.O. 1990, c. S.5.
36
Five Year Review Committee, Final Report (Reviewing the Securities Act-Ontario),
(Toronto: Queen's Printer 2003), online: Ministry of Finance at 2.
37
Crawford Panel, A Blueprint for a New Model (A Discussion Paper by the Crawford Panel on
A Single Canadian Securities Regulator) , (December 2005), online: Crawford Panel
.
38
Crawford Panel, Blueprint for a Canadian Securities Commission Final Paper Oune 2006),
online: Crawford Panel < http://www.crawfordpanel.ca/Crawford_Panel_final_paper.pdf>.
39
Ibid.at 2.
40
Ibid.
41
Letter from David Brown (Chair OSC) to Michael Phelps (Chair WPC) (8 July 2003),
online: Ontario Securities Commission at 1.

costs. According to Mr. Brown, the Ontario Teachers' Pension Plan, one of the
largest institutional investors in Canada, has said that:
[T]he discretion of provinces and territories in securities law matters is an example of
provincial and territorial jurisdiction getting in the way of common sense, which results
in increased costs to investors and the Canadian economy.'

232 Underneath the Golden Boy
except Ontario. Manitoba implemented the instrument in 2005 as Rule 2005
21 (Section 149.1 of the Securities A.ct). 47 This rule is a temporary measure that
facilitates the functioning of the passport system to the extent that is possible
without actually making changes to the existing legislation. The Act is the next
step in the passport system process by amending, repealing, and creating new
sections in the Securities Act.
A. First Reading
The Minister of Finance, Greg Selinger, introduced Bill17 at the same time as
Bill 16, The Corporations Amendment Act. 48 Mr. Selinger stated the purpose of
the legislation was to "strengthen and improve investor rights and to enhance
access to capital markets across Canada.' 49 As Bill 17 was being introduced as a
requirement of the passport system established by the ProvincialTerritorial
Security Initiative, Mr. Selinger stated the bill had "been done in consultation
with securities industry stakeholders, as well as other ministers across the
country." 50 As the bill is non controversial and non partisan, the motion was
adopted with no further commentary or questions.
B. Second Reading
Bill 17 was introduced into the Legislative Assembly for second reading on 24
November 2005. Mr. Selinger went into further detail about the bill,
mentioning 1hat it was created as part of an overhaul of national securities
legislation to "harmonize securities law requirements across Canada to make it
easier to do business here and across Canada." 51 He stated that the passport
system requires the delegation of regulatory powers to other provinces and the
acceptance of other provinces' regulatory powers. Mr. Selinger discussed how
the bill would enhance investor protection by making "it easier for investors to
take court action [against] a public company that makes misrepresentations in
written or oral statements or fails to make timely disclosure of material
changes." 52 The bill was also touted as giving:
gov.mb.ca/legal_docs/legislation/rules/ll_lOlfl.pdf>. This is one example of a consent
form generated as a result of the agreement.
47
Multilateral Instrument 11101 Principal Regulator System, M.S.C. Rule 2005-21 (19
September 2005), online: Manitoba Securities Commission .
48 Bill16, The Corporations Amendment Act, 4th Sess., 38ch Leg., Manitoba, 2006.
49
Supra note 45.
50
Ibid.
51
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 19B (24 November
2005) at 687 (Greg Selinger).
52
Ibid.

[l]nvestors new statutory rights when they buy securities relying on an offering
memorandum allowing investors have their money returned or to sue for damages
when the offering memorandum contains misrepresentations. 5
3
Mr. Selinger also mentioned that more powers need to be granted to the
Securities Commission to more accurately enforce securities laws and that Bill
17 would address this concern. The last main point of the bill covered by Mr.
Selinger was the increase of the maximum fine for breaches of the Securities Act
to $5 million from the present $1 million.
Debate on the second reading continued on 7 December 2005. David
Faurschou, the MLA for Portage la Prairie, said he was happy to see
amendments proceed that would benefit all investors, "[R]egardless of whether
the investment is made in the rural [area] of Manitoba or the city of Winnipeg
or other cities throughout the province." 54 Mr. Faurschou recognized that
Manitobans would like to invest elsewhere in the nation and would want:
[T]o have legislation that will provide the needed assurances that the corporations to
which they are investing in are, in fact, legitimate and that the prospectus that has
been provided for review prior to investment is in keeping with accurate figures and
conforms to the business activity that the company is engaged in. 55
Mr. Faurschou concluded his comments by stating his support for Bill 17, and
noting that he wanted to see the bill receive second reading so that it could go
on to committee, which would provide an opportunity for public comment.
C. Legislative Affairs Committee
Bill 17 headed into committee on 24 May 2006, and with most of the
groundwork laid by the Provindal..Territorial Securities Initiative, the bill's
progression through the committee was a quick one. Interested parties, such as
investor groups, securities commissions and public corporations had already
been involved in expressing their opinions and therefore there was no public
discussion. The bill was read clause by clause with no adjustments. Though
there were questions about the bill, no changes were made. This was because
members accepted the bill was part of a Canada..wide provincial agreement to
harmonize securities laws.
D. Third Reading
Third reading and Royal Assent were given on 13 June 2006.
53
Ibid.
54
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 26 (7 December
2005) at 998 (David Faurschou).
55
Ibid.

234 Underneath the Golden Boy
IV. CONCLUSION
Bill 17 was introduced as part of a larger initiative by the provinces to move
forward with the passport system, the provincial solution to securities reform in
Canada. Manitoba is but one player in this process and each province and
territory needs play its respective role. Bill 17 and the passport system may
eventually be successful, but the efficacy of Manitoba's system is dependent on
other provinces and territories. These governments must implement similar
changes to their respective Securities Acts if Manitoba's legislation is to be
effective.
Although Bill 17 may succeed in helping to harmonize securities laws and
providing increased investor protection, the bigger question is whether the
passport system will work. As Ontario has pointed out, the passport system does
not go far enough and without Ontario's participation the effectiveness of such
a system is questionable. Ontario and other stakeholders have mentioned that
the time and changes put forward by the provinces may be wasted because a
federal regulatory scheme is a necessary ingredient for success. The passport
system relies on the continued participation of all provinces and territories and
even with that participation not all of the regulatory barriers are reduced,
because market participants still need to comply with 13 different provincial
and territorial rules and regulations.
Even provincial ministers agree that without substantial harmonization of
securities laws-both now and into the future-there will be greater potential
for some jurisdictions avoid participation in the passport system, thus leading to
its failure. 56 Only a federal regulator would create true uniformity now and into
the future and act as Canada's single voice internationally. Billl7, The Securities
Amendment Act, does not accomplish this, thus its success may be limited.
56
See Provincial Territorial Securities Initiative, Securities Regulation in Canada: An Inter-
Provincial Securities Framework (Discussion Paper), online: Provincial-Territorial Securities
Initiative at 3.

Bill 11, The Winter Heating Cost Control Act
RYAN HAUK
I.INTRODUCTION
B
ill 11, The Winter Heating Cost Control Act, 1 was introduced into the
Manitoba Legislature on 16 November 2005. It was met with extensive
debate throughout the legislative process. As Bill 11 passed through the
Legislature it attracted media attention and was met with both official and
public opposition at the Standing Committee of Social and Economic
Development hearing on 5 June 2006. Subsequently Bill 11 was amended and
given Royal Assent on l3 June 2006, with only some of its sections declared to
come into force on 20 November 2006.
The initial intention behind Bill11, according to a Manitoba Government news
release, was to "keep heating cost increases manageable for Manitoba
consumers during a period of instability in natural gas prices. " 2 The bill's
objectives in accomplishing this goal were twofold: to create a ceiling for the
maximum level of natural gas prices; and to establish a fund financed by
revenue from electricity exports to control costs and to support conservation,
efficiency and alternatives to natural gas. 3
This paper will examine stakeholder concerns with respect to natural gas
regulation and the government rationale behind the introduction of Bill 11. It
will also explore the forces that amended Bill 11, which ultimately led to the
enactment of a significantly altered bill.
Billll, The Winter Heating Cost Control Act, 4th Sess., 38t 11 Leg., Manitoba, 2005 (assented
to 13 June 2006, S.M. 2006, c. 5).
Manitoba Government, News Release, "Bill 11 and Mild Winter Offer Opportunity to
invest in Heating Efficiency" (30 January 2006), online: Manitoba Government
.
Ibid.

236 Underneath the Golden Boy
II. AN ExPLORATION OF THE NATURAL GAS INDUSTRY
A. Looking Forward
When importing non....renewable resources like natural gas, it is important for
parliament to consider the future outlook on market prices. According to the
National Energy Board, the supply of natural gas will be flat through to 2010, 4
and both imports and domestic production sources will be stagnant until the
next decade. 5 On the other hand, predictions for natural gas demand indicate
positive growth. 6 On a simple supply demand analysis one might infer natural
gas prices are going to rise. However, factors outside the scope of a demand
supply analysis play a role in natural gas pricing. For example, fluctuations in
pricing may be attributed to weather conditions, crude oil prices, drilling and
production of natural gas, and storage levels of natural gas. 7 The current price
of natural gas may be attributed to both above seasonal winter temperatures
and an absence of any major hurricanes near production facilities. 8
However, the market rate of natural gas is generally considered to be volatile
and unpredictable. 9 For example, natural gas prices in 2000 were near the range
of $2.00 to $4.00/GJ. 10 Natural gas prices in January 2006 spiked significantly to
$12.00/GJ. To date, natural gas prices have decreased to $4.50/GJ. However,
another fluctuation is predicted: according to Natural Resources Canada, prices
will rise to $7.60/GJ for the winter of 2007. 11
In summary, although gas prices are predicted to continue to rise, a concrete
prediction of future gas rates would be impossible. 12 Therefore, it is a fair
assumption that consumers will face higher natural gas prices for the winter of
National Energy Board, Looking Ahead to 2010 Natural Gas Markets in Transition-An
Energy Market Assessment (Calgary: Publications Office, National Energy Board, 2004),
online: National Energy Board at 3.
Ibid. at 4.
Ibid. at 17.
Ibid.
Natural Resources Canada, Canadian Natural Gas Winter 2006-07 Outlook (Ottawa:
Natural Gas Division, Petroleum Resources Branch, 2006), online: Natural Resources
Canada at 2.
Ibid.at 4.
10
A gigajoule (G]) is a metric term used for measuring energy use. For example, one GJ is
equal to 26.9 m 3 of natural gas.
11
Ibid. In the winter of 2007, natural gas rates averaged a price of approximately $8.00/GJ.
This figure is based on AECO Winter Strip rates, see: online .
12
Ibid., see also supra note 8 at 4.

2007, but it is unclear whether the price will approach the record levels
exhibited during the winter of January 2006.
B. The Natural Gas Market in Manitoba
A brief overview of Manitoba's natural gas market is beneficial before
embarking on analysis of the government initiatives in the sector. The
importance of the energy industry in Manitoba society is evidenced by a quote
from Energy, Science and Technology Minister Dave Chomiak,
"...[C]onsumers and taxpayers who live in a climate that requires home heating
as a necessity, not as a frivolous thing. 1113 Although natural gas is a necessity as a
major source of heating, consumers of natural gas in Manitoba only have two
sources from which to purchase natural gas: Manitoba Hydro, a Crown
corporation, and private marketers. In addition to the limited sources of natural
gas there are other factors that make Manitoba's natural gas market unique. For
example, Manitoba does not produce its own natural gas. In fact, Manitoba
Hydro imports all of Manitoba's natural gas supply. Therefore, because the
Province of Manitoba is only a consumer with respect to the national market,
both the two aforementioned sources of natural gas in Manitoba, as well as
Manitoba consumers themselves, have little influence over the national gas
rate. What effect, then, do the suppliers of domestic natural gas have on the
prevailing domestic gas rates
According to the Manitoba Hydro Act, 14 the purpose of Manitoba Hydro is to
create a continual supply of power to adequately meet the needs of the province
and to promote economy and efficiency through this task. 15 Manitoba Hydro
created a subsidiary, Centra Gas, to aid in the implementation of this policy
statement by purchasing and delivering natural gas to Manitoba residents at
cost. Therefore, the cost of domestic natural gas sold by Manitoba Hydro will
generally reflect the going national rate. However, as mentioned above, there is a
second option for natural gas consumers--private brokers. In contrast to
Manitoba Hydro, private brokers are businesses that profit from natural gas
imports. Brokers include marketers such as Municipal Gas and Energy Savings
(Manitoba) Corp. 16 Private brokers operate by purchasing natural gas futures to
hedge the natural gas market. The private broker earns income based on a
13
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 15 (18 November
2005) [Debates (18 November 2005)] at 496 (Dave Chomiak).
14
C.C.S.M. c. H190.
15
Ibid.at s. 2.
16
Manitoba Hydro, Residential Guide to Buying Natural Gas: It's Your Choice, online: Manitoba
Hydro at 1.

238 Underneath the Golden Boy
premium which is the difference between the market rate contracted with a
consumer and the futures price of the gas. 17
The consumer thus has the choice of either locking into a fixed rate contract
through a private broker or purchasing natural gas at market influenced prices
that may fluctuate significantly through Manitoba Hydro. The value of either
choice is dependent on market prices and consumer preferences. However,
according to Tom Adams, an analyst from Energy Probe, marketers charge
steep premiums for fixed prices. 18 Mr. Adams states that if Manitoba Hydro
were to fix natural gas rates and subsequently market rates dipped below the
fixed rate, consumers could turn to brokers because they could offer ostensibly
lower rates based on the low market rates prevailing at that point. Mr. Adams
predicted this could cost consumers an extra $12 million on natural gas. 19 This
is due to the fact that while private brokers may offer the comfort of fixed rates
over a defined period, Manitoba Hydro may sell natural gas at a relatively
cheaper rate in the long run, even though its prices will fluctuate with the
national market rate.
III. PuBLIC DEBATE: THE BACKGROUND ON BILL 11
In Manitoba, debate over the issue of natural gas regulation has brought various
public interest groups forward. Numerous commentators have responded
against price regulations in the Winnipeg Free Press. 20 Also, associations like the
Consumer Association of Manitoba and The Seniors Association of Manitoba,
have actively placed a watchful eye on natural gas prices. 21 These associations
have also brought forth broader political issues that are affected by and are
relevant to any political initiatives in natural gas regulation. These issues
include but are not limited to the Kyoto Accord, emerging industries of
alternate energy sources, and Manitoba Hydro's debt to equity ratio. 22 In
addition to these specific issues, the pricing of natural gas has widespread
economic ramifications. Direct financial consequences can often become an
issue that supersedes political issues for a majority of the interest groups.
17
Tom Adams, 1 'Regulated gas a pain for Manitobans"Winnipeg Free Press (14 May 2006).
18
Ibid.
19
lbid.
10
Ibid., see also: Avrom Charach,
11
Province's Gas-Rate Freeze Will be Cold Comfort"
Winnipeg Free Press (27 December 2005) and Tom Adams, "Manitoba wastes electricity,
and now gas, toou Winnipeg Free Press (6 November 2005) [Adams].
21
Manitoba Society of Seniors Inc. v. Manitoba, [1988] M.J. No. 69 (Man. CA) !Manitoba
Society of Seniors lnc.] .
22
Manitoba, Legislative Assembly, Standing Committee of Social and Economic Development,
Vol. LVII No. 9 (5 June 2006) at 367 [Standing Committee of Social and Economic
Development (5 June 2006)].

A. Financial Considerations
With respect to financially driven considerations, a consumer's interest in
natural gas regulation relates to minimizing their bill payments. This may be
achieved in the short term by decreased bill costs, or over a longer period by
increasing the efficiency of one's energy consumption and thereby lowering
one's bill payments. 23 Another financial driven consideration includes
consumers who seek cheaper energy alternatives. As a corollary, if natural gas
prices become unaffordable the consumer is forced to minimize its use or find an
alternative energy source. However, these principles cannot be generalized to
all consumer groups. For example, the Community Education Development
Association has suggested that even if natural gas prices become unaffordable,
low income families and seniors may not be able to invest in alternate forms of
energy because the initial investment needed to convert is too significant. 24
Subsidized Power Smart initiatives that attempt to make energy efficient
choices affordable may also be outside the fmancial reach of low income
households, again, the initial investment is too significant 25
Yet another factor to take into account when examining consumer preference is
whether the consumer does not use natural gas or does not have access to this
resource. These consumers do not benefit from subsidized natural gas costs, but
they may be subject to the tax that will directly or indirectly subsidize the cost. 26
This factor is especially important in Manitoba, as there are approximately
510 000 individuals that obtain their heat source from Manitoba Hydro, but
only one,half of these individuals use natural gas. 27 This statistic includes entire
rural and northern communities that do not have access to natural gas. 28 This
issue has been noted in the Winnipeg Free Press, which stated that farmers
without natural gas would be subsidizing city dwellers. 29
B. Political Considerations
In addition to financial concerns, consumer preference is also altered by
political issues. Environmentalists like former premier Ed Schreyer have
23
Ibid. at 386 (Dave Chomiak).
24
Ibid. at 388.
25
Ibid.
26
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 20 (28 November
2005) [Debates (28 November 2005)] at 707 {Ralph Eichler).
27
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 18 {23 November
2005) [Debates (23 November 2005)] at 625 Oon Gerrard).
28
Debates (28 November 2005), supra note 26 at 708 (Ralph Eichler}.
29
Helen Fallding, "Hydro seeks 5% rate hike for electricity" Winnipeg Free Press (22
November 2005).

240 Underneath the Golden Boy
expressed concern over the consumption of a non renewable resource. 30 The
consumption of hydrocarbons is said to be a major cause of global warming. In
particular, Manitoba Premier Gary Doer has adopted the Kyoto Accord, which
would seek to minimize natural gas consumption. 31 This policy is contrary to a
theoretical consumer preference for lower, subsidized natural gas rates and
increased resource availability raised by one commentator. 32
For example,
according to Peter Holle, president of the conservative Frontier Centre for
Public Policy, market signaling creates the financial push that alters consumer
behaviour. 33 In making this statement Mr. Holle was referring to the deterrence
power of increased prices that naturally arises when a resource becomes scarce.
C. Stakeholder Concerns
Stakeholders such as marketers and producers of alternate forms of energy,
which include geothermal systems and biomass, Jt have a direct financial interest
in natural gas regulation. These groups are in direct competition with Manitoba
Hydro as they fight for a higher share of the commercial energy sector.
Subsidization of natural gas prices would create a lower and artificial market
price for natural gas, which would affect this interest group's ability to compete
with Manitoba Hydro.
Upon an initial analysis it appears the varying interest groups have conflicting
policies and goals. For example, environmentalists promote the use of biomass
and geothermal systems, yet low income families may not be able to invest in
these products. Consumers may demand a decrease in their natural gas bills, but
taxpayers who do not use natural gas would be opposed to subsidizing those who
do. However, a possible area of convergence is on the issue of government
initiatives toward increased efficient use of heating spaces, and efficient use of
natural gas. Consumers would require less natural gas and this would tend to
minimize consumption levels. Furthermore, the majority of Manitoba Hydro
customers could benefit from efficient heating spaces whether they use natural
gas or not. Therefore, while each stakeholder's specific concerns in natural gas
regulation may diverge, there are general initiatives that may appease a majority
of the public interest.
In summary, during Bill ll's passage through the legislature, the stakeholders
lobbied against subsidizing natural gas. Furthermore, they all generally lobbied
30
Mia Rabson, 1 'Natural Gas Price Relief Ridiculed by Schreyer Hydro plan 'perverse'"
Winnipeg Free Press (18 November 2005).
31
Debates (28 November 2005), supra note 26 at 706 (Bidhu Jha).
32
Adams, supra note 20.
33
Supra note 30.
34
Manitoba Government, Biomass Energy, online: Manitoba Government .

against subsidizing a specific heating source over any other, and against
subsidizing a resource in such a way that is geared to only benefit a specific
interest group. The government accepted these recommendations and amended
Billll accordingly.
IV. BILL 11-THEFIRST PROPOSAL
Bill 11, The Winter Heating Cost Control P.ct, 35 purported to accomplish two
objectives in its initial form: to, create a rate freeze of natural gas prices; and to
establish a fund to subsidize the rate freezes and promote natural gas
conservation. M. Chomiak stated the rationale behind a rate freeze was to
protect consumers from "rate shock". 36 The rate freeze would smooth out
natural gas prices, thereby protecting consumers from sudden rate increases.
It is important to note Bill 11 was drafted when natural gas prices rose to
$12.54/GJ in November 2005; an increase of 68% over 2004 rates. 37 According
to Vale Perry, the drafter of the bill, "[Bill 11] came at a time of great
concem 11 38 • However, this rate freeze initiative would only apply to the 2005-06
and the 2006-07 winter heating seasons. 39 The rate freeze for the 2005-06
season would bar the Public Utilities Board from approving any rate increase
after 3 November 2005. The rate freeze for the 2006-07 season would be
accomplished by creating a general cap on price increases. The level of this cap
would be determined by the Lieutenant Governor in Council. 40
The second stated task of the bill was to establish the "Stabilization and
Affordable Energy Fund". 41 Manitoba Hydro was statutorily obligated to
establish this fund to make payments for the objectives of the entire bill. 42
However, the bill stated that the specific objectives of the fund itself were to
provide support for programs and services that promote conservation and
efficiency of electricity and natural gas. 43 Did this mean that monies from
Manitoba Hydro could be used for objectives other than promoting
35
Supra note 1.
36
Mia Rabson, "Province Vows Gas Relief Will Guard Against Looming Price Pain" Winnipeg
Free Press (13 October 2005).
37
Natural Resources Canada, Canadian Natural Gas-Monthly Market Update (Ottawa:
Natural Gas Division, Petroleum Resources Branch, 2005), online: Natural Resources
Canada at2. - - -
38
Interview of Vale Perry (23 November 2006}.
39
See The Winter Heating Cost Control Act, supra note 1 at s. 7(3).
40 Ibid. at s. 6(2).
41
Ibid. at s. 7(1).
42
Ibid.
43 Ibid. at s. 7(2).

242 Underneath the Golden Boy
conservation and efficiency of electricity and natural gas Furthermore, the
fund was to promote "gas system viability and the development of alternatives
to natural gas. " 44 This notion of conservation and efficiency of energy programs
has been coined demand side management C'DSM"). DSM deals with
objectives for controlling the demand of a commodity. 45 However, beyond the
fund's general construction of DSM, it was unclear what initiatives it proposed
or how they were to be carried out.
What was clear was that the fund was legislated to be financed by export
electricity sales. 46 For example, Manitoba Hydro had to pay into the fund a
percentage of electricity export sales from the winter seasons on which the rate
freezes applied. 47 However, according to Ms. Perry there was nothing in the bill
to indicate what value this percentage would be. 48 Ms. Perry said funds
established through legislation are usually constructed in a general way to
provide flexibility in their management.
Aside from the purpose of the fund itself, Manitoba Hydro would also be able to
use the fund to make payments for provisions set out in s. 7 (2) of the bill. 49
Section 2(a) outlines the bill's general purpose as well as its aim of JYOtecting
consumers from rising heat costs. 50 Therefore, while the fund does not include
subsidizing natural gas prices as its specific purpose, Bill 11's original wording
would suggest payments can nonetheless be made out of the fund for this
objective. 5
1
V. DEBATE IN THE HOUSE
Bill 11, The Winter Heating Cost Control Act, was sponsored by then Minister of
Energy, Science and Technology Dave Chomiak, and it was introduced in the
Legislative Assembly for first reading on 16 November 2005. The bill was
politically motivated, according to Ms. Perry and as evidenced by the
background leading up to its introduction. 52
44 Ibid.
4S Supra note 4 at 16.
46
See The Winter Heating Cost Control Act, supra note l at s. 7(3).
47
lbid.
48
Supra note 38.
49
See The Winter Heating Cost Control Act, supra note 1 at s. 7 (4).
50
Ibid. at s. 2(a).
51
Ibid.at s. 7 (4).
52
Supra note 38.

A. Second Reading
Bill 11 was met with significant criticism in the second reading stage. The
critics, including both Liberals and Progressive Conservatives ("PC") argued the
bill attempted to cross--subsidize natural gas through electricity profits. Further,
this subsidy was at the expense of Manitoba electricity consumers, of which only
half use natural gas. 53 Critics went as far as stating the bill was a New Democrat
Party ("NDP") slush fund.54 The NDP, and in particular Mr. Chomiak, fought
back. They urged the Legislative Assembly to view the bill as protecting
consumers and taxpayers from high natural gas prices and benefiting all energy
consumers through DSM initiatives. 55 The bill continued to meet strong
opposition through its second reading, which continued until 31 May 2006.
Mr. Chomiak began the introduction of Bill 11 by outlining the policy
considerations that compelled the government to draft the bill. In particular,
Mr. Chomiak referred to the Public Utilities Board's recommendation to the
government to reduce consumption of natural gas:
The Public Utilities Board has also said that we should look at reducing
consumption in a major way by which natural gas consumers can reduce the
impact of rising natural gas prices and make staying with natural gas for an
acceptable strategy. 56
Mr. Chomiak argued high prices were severely hurting low income families: "It
is extremely difficult in January to tear your walls apart to add insulation or to
drill the holes or lay the pipes needed to add a heat pump... 57 Therefore, it was
clear from the onset that Bill 11 was an attempt to protect consumers from
natural gas price increases. Mr. Chomiak also spoke about the usage of
electricity export dollars. He argued electricity exports have been profitable and
will continue to increase. The Minister submitted it was therefore the
government's duty to use the cash influx to protect consumers.
Both the bill and this line of reasoning were immediately hit with a barrage of
criticism. In particular, Mr. Jack Reimer, the MLA for Southdale, questioned
why the government would not use electricity export funds to subsidize
electricity customers. 58 Mr. Chomiak responded by stating the DSM initiatives
would be beneficial to electricity customers because the subsidized programs
would also apply to electricity customers, but he did not state why electricity
price protection was not included in the bill.
53
Debates (28 November 2005), supra note 26 at 713 Oack Reimer}.
54
Ibid. at 708 (Ralph Eichler} .
55
Supra note 2.
56
Debates {18 November 2005), supra note 13 at 503 (Dave Chomiak}.
57
Ibid. at 505 (Dave Chomiak).
58
Ibid. at 498 Oack Reimer).

244 Underneath the Golden Boy
Opposition members continued to hammer the notion of cross-subsidization. In
particular, the opposition latched onto the comments of former premier Ed
Schreyer. Mr. Schreyer verbally attacked Bill 11 and the NDP in a Winnipeg
Free Press article:
[T]he most retrograde step the government could possibly take ... it's so wrong it's
perverse ... it means a clean, renewable energy source is going to be used to
subsidize a non-renewable, environmentally unfriendly fuel and it won't encourage
people to reduce their use of natural gas. 59
Deputy Leader of the Official Opposition Glen Cummings echoed these
sentiments when he stated, "This creates a perverse cross...subsidization with
legislation ... it violates sound environmental thinking., 60
Dr. Jon Gerrardt the MLA for River Heights, took a different approach and
attacked the bill on the basis that it put consumers who did not use natural gas
at an unfair disadvantage. He argued that only half of Manitoba Hydro
customers who use electricity use natural gas. 61 Therefore, these customers
would be supporting services they do not use. Furthermore, Ralph Eichler, the
MLA for Lakeside, picked up on this notion and submitted the bill was an extra
tax for farmers who did not have access to natural gas. 62
Peter Dyck, the MLA for Pembina, was opposed to the bill on yet another issue:
its commitment to the Kyoto accord. Mr. Dyck questioned how decreasing the
cost of a commodity would support a decrease in demand. 63
The NDP rebutted these attacks by continually returning to the second
objective of the bill, DSM promotion. However, it was clear that the NDP did
not have an answer for these critics. Opposition ministers from both the PC and
the Liberal parties repeatedly stated that any initiatives that either cross..
subsidized natural gas prices or fixed natural gas prices were fraught with
difficulties.
Mr. Chomiak attempted to address the opposition's concerns in an effort to
save the bill's objectives. It was Mr. Chomiak's position that the bill did not
allow electricity dollars to subsidize natural gas dollars. He instead referred to
Manitoba Hydro's hedging and balancing accounts and submitted that the
accounts could be used to "smooth" gas prices. 64 In doing sot electricity profits
would only finance the second objective of the bill, the efficiency and
conservation programs. However, opposition critics attacked Mr. Chomiak's
59
Supra note 30.
60
Debates (18 November 2005), supra note 13 at 494 '(Glen Cummings).
61
Debates (23 November 2005). supra note 27 at 625 Qon Gerrard).
62
Debates (28 November 2005), supra note 26 at 707 (Ralph Eichler).
63
Ibid.at 711 (Peter Dyck).
64 Debates (23 November 2005). supra note 27 at 625 (Dave Chomiak).

interpretation of the bill with equal muster; they asserted the bill was
unnecessary if Manitoba Hydro already had the ability to smooth gas prices.
For example, Jack Penner, the MLA for Emerson, submitted that the bill was
erroneously presented if its purpose was simply to fund DSM initiatives that
were geared towards all energy consumers. He stated that if this was the bill's
objective, the bill should have been drafted in such a way that it tried to
convert those consumers that use natural gas to electricity. Specifically, Mr.
Penner stated:
Would it not have been simpler just to say, "Well, we are going to put in place
programs to encourage those people who are now on natural gas to convert to
hydro'' Would that not have been nice Number one, cleaner fuel; No. 2, stop
the destruction of the ozone layerj No. 3, stop and decrease the effects of global
warmṁg. 65
Mr. Penner was referring to the current existence of Manitoba Hydro Power
Smart programs. He argued subsequent legislation for Power Smart programs is
redundant and the bill should have been structured differently instead.
Bonnie Mitchelson. the MLA for River East, attacked Bill 11 on a fiscal leveL
Ms. Mitchelson compared Bill 11 to a 2002 bill called Bill 41 1
The Manitoba
Hydro Amendment Act 66 She submitted that Bill 41 was a two--year raid on
Manitoba Hydro that took $203 million from Manitoba Hydro coffers. 67 In
comparison, she noted that Bill 11 was a two--year bill with similar provisions to
draw funds from Manitoba Hydro. Ms. Mitchelson submitted Manitoba Hydro 1 s
debt to equity ratio is extremely poor and therefore funds taken from Manitoba
Hydro are only borrowed from the bank. 68 She urged the House to use any
export revenues of electricity to decrease Manitoba Hydro's debt.
Finally, Bill 11 was passed along to the committee stage with the complications
of numerous unresolved issues that were raised in the second readings.
B. Committee Stage
Bill 11 went to the Social Economic Development Committee on 5 June 2006.
Five interest groups made presentations in addition to further debate amongst
the ministers. All five presenters spoke in opposition of Bill 11.
Ian Wishart, the vice president of Keystone Agricultural Producers, spoke on
behalf of the farming community of Manitoba. Mr. Wishart attacked the bill for
65
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 26 (7 December
2005) [Debates (7 December 2005) lat 987 Qack Penner) .
66
Bill41, The Manitoba Hydro Amendment P..ct, 3d Sess., 37ch Leg., Manitoba, 2002 (assented
to 9 August 2002, S.M. 2002, c. 41).
67
Manitoba, Legislative Assembly, Debates and Proceedings, VoL LVII No. 80 (31 May 2006)
[Debates (31 May 2006)] at 2822 (Bonnie Mitchelson).
68
Ibid.

246 Underneath the Golden Boy
subsidizing natural gas, which would not benefit most farmers because a
majority of them did not have access to the resource. 69 Furthermore, Mr.
Wishart was concerned about provisions in the legislation that required
Manitoba Hydro to establish the fund. As farmers producing biomass compete
with Manitoba Hydro, it was Mr. Wishart's position that the fund created by
Bill 11 would need more arms length separation from Manitoba Hydro to have
merit. This was because, on the face of Bill 11, the Legislature would have little
control over how Manitoba Hydro spent its electricity export funds. 70
Gloria Desorcy, a representative of the Consumer Association of Canada, spoke
on behalf of consumers in Manitoba and the Manitoba Society of Seniors Inc.
Both groups have played an active role in natural gas price debates. For
example, in 1998 the parties commenced an action against Manitoba Hydro for
disclosure of government reports on pricing considerations of rates. 71 Ms.
Desorcy closed her presentation with three suggestions:
• That the Government of Manitoba allow the PUB to continue to set
rates for primary natural gas using the well designed procedures that
allow for stakeholder input and full disclosure of information;
• That the Government of Manitoba reject the subsidization of primary
natural gas rates by electricity export revenues; and
• [That the government should recognize] that electricity DSM programs
can and should pay for themselves. 72
Ms. Desorcy's recommendations did not support fixed natural gas rates. She
further suggested any DSM programs should be universally accessible to all
Manitoba citizens and reviewed by the Public Utilities Board.
The third presenter was Tom Simms, from The Community Education
Development Association, who spoke on behalf of low income families in
Manitoba. He cautioned the committee that DSM strategies are often
inaccessible to low income families, and in particular renters. 73 Mr. Simms
stated that 30-40% of energy consumption in inner cities is energy waste. 74 He
lobbied to have extensive DSM programs focused at low income families.
The fourth presenter was Jennifer Lukovich, a private citizen who advocated an
environmental position with respect to Bill 11. Ms. Lukovich submitted that
69
Standing Committee of Social and Economic Development (5 June 2006), supra note 22 at
365-367.
70
Ibid.
71
Manitoba Society of Seniors Inc., supra note 21.
72
Standing Committee of Social and Economic Development (5 June 2006), supra note 22 at
385-386.
73
Ibid. at 388-392.
74
Ibid. at 390.

"financial incentives", like high gas prices, were required to promote alternate
forms of energy and these financial incentives were not present in this bill. 75
The final presenter, Sara Anghel, provided a written report on behalf of Direct
Energy, an energy retailer. Ms. Anghel argued two positions: first, against fixed
prices; and second, that any subsidization initiatives should be directed to all
natural gas consumers regardless of who they purchased gas from. Her
suggestions were as follows:
• Allow primary gas rates to continue to reflect the true cost of gas so that
consumers can make informed and efficient usage and investment
decisions;
• Minimize the size of the cost deferral by applying it to the most
vulnerable consumers, as was recommended by the PUB, and by limiting
the recovery period; and
• Maintain equity among Manitoba's gas supply customers, regardless of
their choice of gas supplier. 76
Therefore all five presenters-while having varying specific interests-all
argued against Billll. As a whole, the presenters lobbied against fixed gas costs;
they also argued DSM initiatives should be accessible to all energy consumers,
not just electricity or natural gas consumers. In particular, they emphasized the
special needs of low income consumers and argued if subsidies were allocated
exclusively to the natural gas sector, they may be inaccessible to this special
interest group.
Mr. Chomiak proposed various amendments in response to this criticism. 77 The
amendments were all passed on division during the committee stage. The
amendments responded to the concerns voiced by both opposition members
and presenters in form and content. For example, the amendments specifically
included seniors, rural families, and low income families in the purpose
provision of the bill's DSM initiatives; 78 which is clear evidence of a prevailing
democratic process.
75
Manitoba, Legislative Assembly, Standing Committee of Social and Economic Development,
Vol. LVII No. 10 (5 June 2006) [Standing Committee of Social and Economic Development (5
June 2006)] at 403-405.
76
Ibid. at 450.
77
Standing Committee of Social and Economic Development (5 June 2006) at 416-439. See also:
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 84B (6 June 2006)
[Debates (6 June 2006) 1 at 3038-39.
78
The Winter Heating Cost Control Act, C.C.S.M. c. W165 at s. 6(3). This version of the Act
should be distinguished from Billll, The Winter Heating Cost Control Act, S.M. 2006, c. 5,
the initial version of the bill that was significantly amended into the current continuing
consolidated statute.

248 Underneath the Golden Boy
C. Third reading and Royal Assent
On 13 June 2006, the Social Economic Development Committee reported to
the Legislative Assembly on Billll, The Winter Heating Cost Control Act. No
further amendments were proposed.
VI. BILL 11 AS AMENDED
Bill 11 as proclaimed on 20 November 2006 no longer embodied its original
intent. 79 For example, the rate freeze provision has not yet been proclaimed.
Further, it is unlikely this provision will be proclaimed as it was faced with the
strongest criticism throughout the legislative process, and in any event, a
significant increase in the price of natural gas is no longer predicted. 80 Also, the
fund established under the second objective of the bill now applies generally to
all of Manitoba Hydro's energy consumers, not only its natural gas and
electricity users. 81 The fund is now deemed the uAffordable Energy Fund", and
it seems to be the bill's sole effect. In fact, the name of the bill, The Winter
Heating Cost Control Act, 82 is a misleading title because the amendments
changed its character; it is submitted that the ''Affordable Energy Fund Act''
would have been more appropriate. Furthermore, the bill now specifically states
that any DSM initiatives are to ensure consumers in northern or rural
Manitoba, seniors, low income families, and those with alternate energy sources
have equal access to the services. 83
Additionally, the fund will only be financed by a p;rcentage of export profits
during the 2006-07 winter season. 84 However, it is still unclear what value this
percentage would be 85 and there is no indication the fund cannot be used to
subsidize natural gas prices.
There are no further instructions or restraints on the mechanics of the
Affordable Energy Fund. Therefore, the bill was altered significantly in three
areas: it no longer focuses on creating a rate freeze; it will not fund any losses
accrued from a rate freeze; and its DSM provisions apply to all energy sectors
79
Ibid.
80
See interview with Ms. Perry, supra note 38 and see also predicted gas rates, supra note 8.
Please note that the rate freeze provision was not enacted during the winter of 2007 and is
therefore no longer applicable.
81
See The Winter Heating Cost Control Act, supra note 78 at s. 6(3).
82
Ibid.
83
Ibid.
84
Ibid.at s. 6(4).
85
See interview with Ms. Perry, supra note 38.

and all energy customers equally. 86 These changes fully respond to and reflect
the lengthy debate and lobbying during the legislative process.
VII. THE BILL'S EFFECTS
The government chose to play an active role in the market regulation of natural
gas sales through Bill 11. However, critics argue government regulation of
natural gas prices creates an inaccurate representation of the market and fails to
predict the price of the global market. 87 As a result, consumers purchase a
product that would otherwise be beyond their financial means or preference.
This effect may tip the delicate demand supply equation in favor of the demand
side. Further, according to the National Energy Board, provincial governments
should let energy prices reflect market values. 88 The board submits this will
allow the consumer to understand total costs and make informed decisions.
However, the government not only has to take into account the resource's
price, but it has the added duty of ensuring the citizens of Manitoba are
provided with affordable heating. Therefore, the government must ask whether
natural gas prices are an unaffordable choice to the citizens. Assuming this is
true, it is then essential that a government in a climate akin to Manitoba
explores initiatives to alleviate the problem.
A. The Role of the Affordable Energy Fund
Bill 11, as amended, is an attempt to tackle heating affordability concerns by
establishing the Affordable Energy fund for programs that promote energy
efficiency and conservation.59 It is possible the bill will obligate Manitoba Hydro
to pay a substantial amount of electricity export revenues into the fund. It was
submitted in debates in the Legislature that the government would be hurting
electricity consumers by taking export dollars out of Manitoba Hydro. 90 For
example, Manitoba Hydro would not be able to channel the full amount of
electricity export revenues back into the production of electricity, which may
raise costs of electricity in light of Manitoba Hydro's large debt.
The fund may also be used to promote residential and commercial Power Smart
upgrades. This would create a more efficient use of natural gas and would
continue the work that the gutted Federal Energuide initiatives started. 91 It is
86
Ibid.
87
Debates (18 November 2005), supra note 13 at 506. See also supra note 4 at 18.
88
Supra note 4 at 16.
89
See The Winter Heating Cost Control Act, supra note 78 at s. 6(1).
90
Debates (31 May 2006), supra note 67 at 2822-23 (Bonnie Mitchelson).
91
CBC, "Energuide" (5 May 2006), online: CBC .

250 Underneath the Golden Boy
important to note the fund would not be the only Manitoba Hydro Power
Smart initiative. Manitoba Hydro already has programs that include energy
evaluations for old furnace replacements. 92 It is unclear what role the fund will
play in regard to these previously established Power Smart programs. One could
also question if this legislation was even required because these programs
already deal with energy conservation. Manitoba Hydro may also choose to use
the fund to aid in research and development of alternative forms of energy. 93
According to the National Energy Board, DSM is based to a large extent on
education and awareness, 94 but the board specifically recommended market
based mechanisms like pricing for peak hours. 95 Bill 11 does not allude to any
pricing mechanisms.
B. Direction for Future Initiatives
If Manitoba residents cannot afford to heat their homes there is a problem and
this problem will not be solved through fixed price rates. Further, according to
Mr. Chomiak,
Manitoba does not produce the natural gas which it uses but rather must pay oil and
gas companies in other provinces, usually Albertaj for the fuel, producing a net drain
on the economy. 96
Therefore, it is submitted that any government initiatives in natural gas
regulation should be focused on phasing out natural gas use. Bill 11 fails to take
this aggressive approach and may merely supplement current Power Smart
programs.
VIII. CONCLUSION
Billll was delayed with strong opposition during the legislative process and was
effectively barred from being enacted into force for the 2005-06 winter season.
During the committee process, problematic issues with the bill and natural gas
regulation became clear. This was made possible by effective submissions from
well#represented public interest groups. The debate eventually compelled the
government to amend the bill. The bill as amended clearly responded to the
issues raised by opposition to it throughout the legislative process.
It may appease the public interest groups who were involved in its passage, but
the bill's practical effect is suspect: the amendments were an answer to
92
Manitoba Hydro, What is Powersmart, online: Manitoba Hydro .
93
See The Winter Heating Cost Control Act, supra note 78 at s. 6(2).
94
Supra note 4 at 16.
95
Ibid. at 15.
96
Debates (18 November 2005), supra note 13 at 504 (Dave Chomiak).

opposition criticism but they were not a solution to the underlying issues that
were raised through the legislative process. These issues include over
consumption, consumer dependency on an imported commodity, and the
continued consumption of hydrocarbon energy sources.
Nonetheless, Bill11 provided several important observations as a unique case of
effective lobbying. First, even in the face of strong opposition, Bill 11 was not
barred from becoming legislation, hit that opposition drastically affected the
nature and ultimate effect of the bill when it became law. For example, Bill 11
no longer embodies a rate freezing provision. Second, the effective debate in the
Legislative Assembly acted to educate ministers about the policy considerations
and consequences of Bill 11 on all consumer groups. As the debate progressed
on Bill 11 it was apparent issues became more focused and more researched. In
fact, debate often reflected current expert opinion on natural gas regulation.
Third, an accurate representation of public opinion was taken into account
when amending Bill 11. In particular, Bill 11 as amended exhibits the interests
of all five presenters from the committee stage.
Finally, although the amendments on Bill 11 appeased the electorate, it fell
short of aggressive legislation that would answer some of the issues raised during
the legislative process. As previously mentioned, the bill did not attempt to
address broader political issues, such as the consumption of hydrocarbons,
Manitoba's economy, including Manitoba Hydro's debt to equity ratio, and
alternate sources of heating energy. Furthermore, although the bill's original
objective was to protect the consumer's interest by ensuring natural gas remains
affordable, experts do not support subsidized natural gas prices, and instead
promote clear market signals. Therefore, parliament should avoid regulating
natural gas prices and it is further submitted that any subsequent legislation
should deal with the aforementioned broader issues. The value of future natural
gas bills that fail to do this should be seriously questioned.
In conclusion, Bill 11 was rendered to have little effect because of its delayed
coming into force date. However, this does not necessarily reflect a shortcoming
of the legislative process. In fact, debates in both the House and during the
committee stage afforded parliament an educated and comprehensive
understanding of stakeholder concerns with respect to natural gas regulation.
This valuable insight was incorporated into the amended version of Bill 11.
Although the legislative process did not create a forum for innovative drafting
to deal with the broader issues surrounding Bill 11, it diq create a forum that
effectively scrutinized the proposed law, and incorporated the interests of the
majority therein.

Bill 7, The Architects and Engineers
Scope of Practice Dispute Settlement Act
ALEXANDRA
DUECK
!.INTRODUCTION
I
n jurisdictions across Canada, architects and engineers have argued over
their respective scopes of practice for many years. In various places, this
dispute has long been settled. For example, Ontario, Saskatchewan, and
1
British Columbia have enacted legislation to deal with similar arguments. In
Manitoba, the time finally came for the Legislative Assembly to attempt to
settle this dispute following the 16 September 2005 decision of the Manitoba
Court of Queen's Bench. In Assn. of Architects (Manitoba) v. Winnipeg (City), it
was decided that the City of Winnipeg could not issue any building or
occupancy permits contrary to The Architects Act. 2 In response, the government
passed Bill 7, 3 following very heated debate. This Bill amended three provincial
Acts: The Architects Act, 4 The Buildings and Mobile Homes Act, 5 and The
Engineering and Geoscientific Professions Act. 6 The table on the following page
summarizes the bill's key components and its effects.
Bill 7 was meant to get projects going again and to prevent further arguments
between architects and engineers. This goal was to be accomplished by
clarifying when both professions wmld be needed on specific jobs and how
future disputes would be settled. From the author's point of view, the question
In drafting Bill 7, the government studied legislation in Ontario, Saskatchewan, and B.C.
In the end, Bill 7 is most similar to that of Saskatchewan. Interview of Chris Jones by
Alexandra Dueck (1 November 2006) Uones}.
Assn. of Architects (Manitoba) v. Winnipeg (City), [2005] M.J. No. 317, 46 C.L.R. (3d) 223
[McCawley Decision}.
The Architects and Engineers Scope of Practice Dispute Settlement Act, 4'h Sess., 38th Leg.,
Manitoba, 2005 (assented to 30 November 2005), S.M. 2005, c. 48.
R.S.M.1987, c. A130, C.C.S.M., c. Al30.
R.S.M. 1987, c. B93, C.C.S.M., c. B93.
S.M. 1998, c. 55, C.C.S.M., c. E120.

254 Underneath the Golden Boy
Table 1: Bill 7's Key Features
Government
Objective 7
Clarify the scope of
practice for both
architects and
professional engineers
Create more
consistency between
The Architects Act and
the Manitoba Building
Code
Deal promptly with
permits put on hold
by McCawley
Decision
Related Legislative Measures 8
• Amended definition of
"architect"-"planning and
review, role instead of
"planning and supervision"
• Grandfathered engineers who
did architectural work
• Permitted clients tD name
either professional as prime
consultant
• Loosened restrictions on work
that can be performed by
non-architects via
amendments to The Architects
Act
• Increased consultation for
changes to the Code related
to involvement of architects
and engineers on specific
projects
• Increased power for Joint
Board, settlement decisions
now binding on both
professions
• Amended the acts of both
professions to allow
development of joint firms
• Created ability to amend the
Code through the Buildings
and Motor Homes Act
• Authorized the Code to
determine which projects
require both architects and
engineers
• Reinforced validity of permits
issued before McCawley
Decision
Effects
• Reduced the scope of practice
for architects
• Minimal impact from
grandfathering, given the
small number of eligible
engineers
• Gave more decision-making
power to clients, which may
save costs, but may also raise
safety concerns
• Increased reliance on the Code
for specific details
• Forced both groups to work
together to make changes to
the Code in the future
• Joint board should be able to
resolve disputes in a more
timely manner and minimize
government involvement,
saving costs
• Potential for more job
opportunities for both groups
of professionals at different
firms
• Both architects and engineers
are unhappy with specific
divisions in the Code's table
• Removes ambiguity for the
majority of projects
• Unusual for these changes to
be written into the Code
instead of the acts
• Government pushed the
legislation through, allowing
projects to either begin or
resume
See the government's goals for Bill 7 in the Second Reading section at 258, below.
See Analysis of the Bill at 266, below.

is really the following: which jobs require an architect and when can an
engineer do the job alone The architects have fought to be involved in more
projects. while the engineers have argued that architects are not always
required. To determine the answer to this question, one must consider what is
in the public's best interests. The relevant parties seemed to focus on public
safety and the cost to the customer.
This paper will begin with a brief review of the main events that led to Bill 7.
Next, it will discuss the passage of the bill through the House, and then it will
conclude with an analysis of the impact of Bill 7 on those who would be affected
by its passage.
II. ORIGINS OF BILL 7
Both architects and engineers are regulated by their own professional
associations. The Manitoba Association of Architects (uMAA") governs the
practice of architecture in the province in accordance with The Architects Act. 9
The Association of Professional Engineers and Geoscientists of the Province of
Manitoba ("APEGM") governs professional engineering and professional
geoscience in accordance with The Engineering and Geoscientific Professions Act. 10
In Manitoba. the dispute over the respective scopes of practice of architects and
engineers has gone on for many years. Both The Architects Act 11 and The
Engineering and Geoscientific Professions Act 12 have provisions enabling the
Engineering. Geosciences and Architecture Inter Association Relations Joint
Board ("the Joint Board") to resolve disputes; however, according to Dave
Ennis, an engineer, the ]oint Board has failed to solve this problem. 13 Thus, in
the mid...1990s, APEGM and the MAA brought in a mediator from Rhode
Island to assist the groups in coming to a solution; however, this also failed. 14 As
such, both groups turned to the courts and the legislature to define their
respective positions.
Manitoba Association of Architects, About the Association, online: Manitoba Association of
Architects .
10
Association of Professional Engineers and Geoscientists of the Province of Manitoba,
Mission, online: Association of Professional Engineers and Geoscientists of the Province of
Manitoba, < http://www.apegm.mb.ca/askget/whatis/mission.html>.
II
The Architects Act, supra note 4 at s. 33.
12
The Engineering and Geoscientific Professions Act, supra note 6 at s. 68.
13
Interview of Dave Ennis by Alexandra Dueck (16 October 2006) [Ennis 16 October 20061.
14 Ibid.

256 Underneath the Golden Boy
A. In the Courts-Pestrak v. Denoon
In Pestrak v. Denoon, the MAA brought an action against an engineer and a
draftsman for doing what the MAA considered to be architectural work. 15
While both were acquitted at trial, the engineer was convicted on appeal to the
Court of Queen's Bench in March 2000. It was argued that in the past,
engineers had worked as consultants to architects on complex buildings, but
over time, the engineers began to work without architects. The engineers
claimed that by certifying compliance with the Manitoba Building Code 16 ("the
Code"), they assumed responsibility for the overall design. 17 However, Monnin
J. noted: "The references in the Code cannot form the basis to enlarge the
scope of practice of the professional regulatory statutes.'' 18 Monnin J. con luded
that "architects are mandated to provide planning and supervision roles" in
building projects, while engineers are "mandated to provide services in
conjunction with the architects under their review". 19
This interpretation seemed to side with the architects, since they were deemed
to have planning and supervision roles. The engineers then turned to the Court
of Appeal, emphasizing the amended definition of the "practice of professional
engineering,.; however, they lost. 20
B. Amendments to the Professional Acts
Subsequently, changes were made to both professional acts. In 2002, The
Architects Act was amended to provide for a significant increase in fine levels for
contravening The Architects Act 21 and a new option for the MAA "to apply to
court for an injunction when the Act is contravened." 22
Next, in 2004, the engineers sought to have their own act amended because
APEGM realized The Engineering and Geoscientific Professions Act did not give it
authorization to make donations, even though it had already been doing so.
According to Ron Schuler, the MLA for Springfield and a member of the
opposition, this amendment was (Ivery innocuous, but the genesis of the
problems" with Bill 7. 23 He explained that key stakeholders were not initially
15
Pestrak v. Denoon, [2000] M.J. No. 112, 6 W.W.R. 178 at para. 1 (Q.B.) [Pestrak].
16
Man. Reg. 127/2006, being part of The Buildings and Mobile Homes Act, supra note 5.
17
Pestrak, supra note 15 at para. 42.
18
Ibid. at para. 70.
19
Ibid. at para. 71 [emphasis added].
20
Pestrak v. Denoon, [2000] M.J. No. 398, 10 W.W.R. 387 (C.A.) at para. 10.
21
The Architects Amendment Act, S.M. 2002, c. 10, s. 9(1), amen4ing C.C.S.M. c. A130, s.
26(1). .
22
Ibid. at s. 9(3), amendingC.C.S.M. c. A130, s. 26.1.
23
Interview of Ron Schuler by Alexandra Dueck (2 November 2006) [Schuler].

contacted in this case, and when the relevant parties were finally informed, the
number of letters and petitions that followed was "unbelievable". 24 Mr. Ennis
said that architects objected to the 2004 amendment because they interpreted it
as being for the purpose of promoting the engineering profession. 25
As a result of the architects' objections to the amendment, the Honourable
Nancy Allan, Minister of Labour and Immigration, ("the Minister") advised the
two professions in July 2004 that Dr. David Witty, Dean of Architecture, would
become the chair of the Joint Board, which had been dormant since late 2003. 26
Ms. Allen said the Joint Board was to provide a report with recommendations to
resolve the conflict by the end of the year, but it failed to provide a solution
both groups could agree with. 27
C. Back in Court-The McCawley Decision
In May 2004, the MAA began an action against the City of Winnipe C'the
McCawley Decision"). The MAA argued that in issuing certain building and
occupancy permits, the City was permitting engineers to practice outside their
scope, which infringed upon The Architects Act. 29 Citing a number of arguments,
McCawley J. found that the engineers were practicing outside their scope and
she issued an injunction to ensure compliance by the City. 30 At ftrst glance, this
result would appear to be very positive for architects; however, this decision
took the dispute to a whole new level.
Mr. Ennis said that many projects under construction that did not involve
architects were halted as a result of this decision, which had a significant
economic effect. Consequently, engineers and the construction industry
24
Ibid.
25
Ennis 16 October 2006, supra note 13.
26
Ibid.
21
Ibid. Mr. Ennis said the subsequent January 2005 Joint Board report was largely the opinion
of the Chair, Dr. Witty. Among other things, the report recommended that all building
construction projects must have an architect. While the engineers had agreed to Dr.
Witty's appointment as chair, they disagreed with his report.
28
McCawley Decision, supra note 2.
29
McCawley Decision, supra. note 2 at para. 1.
30
Ibid. at para. 64. McCawley J agreed with Monnin J.'s decision in Pestra.k-the Manitoba.
Building Code cannot expand the engineers' scope of practice if in doing so it goes against
the governing ac[s (at para. 43). She also stated that the Legislature did not intend "to
expand the definition of the practice of professional engineering" in the amendment to The
Engineering and Geoscientific Professions Act (at para. 53). Finally, McCawley J. said that the
"controversial practice" of engineers working without architects could not override the
legislation (at para. 59).

258 Underneath the Golden Boy
petitioned the government, and in particular the Minister, br the 11 real world
status quo." 31
III. PASSAGE OF BILL 7 THROUGH 1HE ASSEMBLY
A. First Reading
Bill 7, The Architects and Engineers Scope of Practice Dispute Settlement Act, went
through its first reading on 7 November 2005. Ms. Allan introduced the bill,
stating its purpose as follows:
This bill clarifies the scope of practice for architects and professional engineers. It
facilitates joint practice between the two professions and harmonizes The Architects Act
with the Manitoba Building Code for the purpose of determining when an architect or a
professional engineer, or both, are required on building construction projects. 32
B. Second Reading
Ms. Allan spoke to the bill again when its Second Reading took place on 9
November 2005. She said the legislation must take care of the public's
collective interest by ensuring that buildings are "safe, functional and cost..
effective/' and that they "reflect the vision that we have for our communities
today and into the future." 33
Ms. Allan acknowledged the history of conflict between the two professions and
the governmenes desire to reach a mutually acceptable solution. A solution was
necessary, she said, because both architects and engineers are needed for
certain projects, such as large complex buildings, buildings where people are
cared for or detained, and buildings where the public gathers. 34
Architects and engineers were not the only stakeholders consulted as part of
the creation of the legislative package. Ms. Allan noted that developers,
contractors, interior designers, plan reviewers, and building inspectors were also
involved in the process. 35
Ms. Allan listed several goals the government hoped to achieve with Bill 7:
• Prompt action to deal with the building and occupation permits which
were put on hold following the McCawley Decisionf 6
31
Ennis 16 October 2006, supra note 13:
32
Manitoba, Legislative Assembly, Debates and Proceedings, VoL LVII No. 8 (7 November
2005) at 223 (Nancy Allan).
33
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 10 (9 November
2005) at 308 (Nancy Allan).
34
Ibid.
35
Ibid.
36
Ibid. at 309.

• To provide clarity and certainty in the legislation;
• To create more consistency between The Architects Act and the
Manitoba Building Code;
• To work toward the goal of harmonization with the National Building
Code; 37 and
• To ensure that architects would still have a "significant role in the
planning, design and review of buildings", while allowing engineers to
"practice within the bounds of their profession". 38
Ms. Allan then discussed the key changes that would result from Bill 7. These
changes were geared toward resolving the dispute by defining clear roles for
each profession.
With regard to The Manitoba Building Code, she said The Buildings and Mobile
Homes Act would be amended to:
• Authorize the Code to determine which buildings require both an
architect and an engineer; and
• Require consultation with both professional groups and the Building
Standards Board to make changes to the Code related to the
involvement of architects and engineers in specific projects. 39
The proposed changes to The Architects Act included:
• An amendment to the definition of "architects", which would state that
they "plan and review building construction", instead of "plan and
supervise"; and
• Alterations to mirror The Engineering and Geoscientific Professions Act to
facilitate the development of joint firms.-«>
Changes to both The Architects Act and The Engineering and Geoscientific
Professions Act would permit:
• Engineers who had previously gained knowledge of some aspects of
architectural practice to obtain a recognition certificate enabling them
to continue their practice until they retired; and
37
Ibid. The National fuilding Code of Canada 2005 is a federal code issued by the National
Research Council of Canada. It is adopted in s. 1 of the Manitoba Building Code, supra note
16. See The Canadian Commission on Building and Fire Codes-National Research
Council of Canada, National Building Code of Canada 2005, l2 1 h ed. (Ottawa: National
Research Council of Canada, 2005). The Minister explained that Saskatchewan and
Ontario both use their provincial building codes to identify which projects need both an
architect and an engineer.
36
Ibid.
39
Ibid.
40 Ibid. at 310.

260 Underneath the Golden Boy
• Clients to choose to name either an architect or an engineer as the
prime consultant in a project. 41
Additionally, Ms. Allan said the Joint Board,s power would be enhanced,
making its decisions binding on both associations. However, the Joint Board
would be required to make its decisions in a timely manner. Finally, Ms. Allan
said that Bill 7 would ensure the validity of the building and occupancy permits
issued before the McCawley Decision. 42
C. Debate at the Second Reading
The Debate on Bill 7 went on for three days, starting on 14 November 2005.
Opposition criticized the government for its failure to act sooner to resolve the
conflict between the two professional groups and emphasized the need for a
rapid solution. However, Mr. Glen Cummings, the MLA for Ste. Rose, was
concerned about what he described as insufficient consultation. He asked Ms.
Allan to provide details about the scope of the government's consultation with
key stakeholders. 43
Some members also expressed concern about the legislation's effect on
Manitoba's economy. 44 Mr. Cummings noted the concern that people would
lose money and leave the province as a result of this dispute. He said that
projects had been slowed down and project costs might increase due to the
weather sensitive nature of some projects. These increased costs would then be
passed on to consumers. 45 Mr. Maguire, the MLA for ArthurVirden, said that
this problem also impacts companies contemplating coming to Manitoba and
people trying to build in Manitoba. 16 Mr. Schuler reiterated concerns that had
been raised relative to the conflict leading up to Bill 's introduction. He
acknowledged it likely did not please any of the stakeholders and that perhaps
the only thing it succeeded at was getting construction back on track. 47
However, the province,s Deputy Fire Commissioner, Chris Jones, said that
contrary to the statements of some, the City actually only stopped processing
building permits for about a month, and rural Manitoba did not stop processing
41
Ibid.
42 Ibid.
43
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 11 (14 November
2005} at 341 (Glen Cummings}.
44 Ibid.
45
Ibid.
4o Ibid. at 342 (Larry Maguire).
47 Manitoba, Legislative Assembly, Debates and Proceedings, VoL LVII No. 13 (16 November
2005) at 408 (Ron Schuler).

them at all. In factt he explained that this interruption probably helped
accelerate the resolution, since people were upset about the situation.:S
In the end, Mr. Schuler believed that due diligence was done, as the
government had consulted all the relevant parties in the span of a week. 49
Mr. Bidhu Jha, the MLA for Radisson, responded for the government. He
emphasized the need to protect the public interest by preventing construction
delays and cost increases resulting from the McCawley Decision. 50 He
acknowledged that about 12 engineers were planning buildings at the time and
they would be grandfathered under the act so they could continue their
practice. Mr. Jha then expressed his confidence that the bill would be very good
after hearing all the presenters, and he thanked the Opposition for supporting
the bill.:n
D. Committee Meetings
There were over 200 people signed up to speak to Bill 7, 52 so the bill spent three
days at the committee stage, starting on 21 November 2005. There were
presentations by many different groups and some were very intenset reflecting
the passion that many of the presenters had for their respective professions.
1. General positions
Don Oliver t a past president of the MAA, said the architects took the position
that the bill should not be rushed. He said he believed there were good
intentions in the legislation, but there were parts that needed to be reworked.
He stated that there actually was no crisis resulting from the McCawley
Decision, because the City had already been dealing with the backlog for two
months. 5
3 On the other handt Mr. Ennis, on behalf of the engineers, questioned
whether the bill could truly be considered rushed, given the extensive history of
the dispute between the architects and engineers. 54 He explained that most
engineers supported Bill 7 because they believed it would provide the clarity to
allow them to continue work as before. Mr. Ennis noted that both APEGM and
the City supported the bill. 55 While he acknowledged that some engineers were
48
Jones, supra note 1.
49
Supra note 47 at 409 (Ron Schuler).
50
Ibid. (Bidhu Jha).
51
Ibid.at410.
52
Manitoba, Legislative Assembly, Standing Committee on Social and Economic Development,
Vol. LVII No.1 (21 November 2005) at 2 (Marilyn Brick).
53
Ibid. at 21 (Don Oliver).
54
Manitoba, Legislative Assembly, Standing Committee on Social and Economic Development,
Vol. LVII No.5 (23 November 2005) at 232 (Dave Ennis).
55
Ibid.

262 Underneath the Golden Boy
unhappy that a branch of engineering was being called architecture, he said that
he agreed with it to ease the passing of the bill. 56
2. Outside the Acts
The architects expressed several key concerns with Bill 7. Robert Eastwood, an
architect, said his profession did not like the proposal of governing the scope of
work through a public board outside the professional associations and their acts.
The architects either wanted the regulation changes to be written into the bill
or into the professional acts for continuity and stability. 57 The architects said
the bill would undermine the legislative process by putting the Code ahead of
The Architects Act. 58 Francis Pineda pointed out that "[t]here is no other
jurisdiction in Canada [where] the Building Code dictates any professional
regulation." 59 However, Mr. Ennis stated for the engineers:
If the public of Manitoba, operating through the Cabinet, which is the only body with
the authority to amend the Maniroba Building Code, sees fit to rule on the boundaries,
then for me that is okay. 60
The engineers did raise the concern, however, that the court's broad
interpretation of The Architects Act would leave engineers from Manitoba
Hydro open to litigation, because they were planning supervision for others for
Manitoba Hydro buildings. 61
3. Professional qualifications
Next, several architects emphasized their extensive professional training, which
they said qualified them to do work that should not be done by others. 62
Although Kevin Sim, an engineer 1 said: "Who we are and what we are qualified
to do should not be based solely on our respective educations but also on our
experience and our relative competencies." 63
Additionally, architect Rudy Friesen worried that public safety would be put at
risk because this legislation would weaken the protection offered by The
Architects Act. 64 Jim Wagner, another architect, spoke to the proposed change
in the definition of "architect." He said:
56
Ibid.
57
Supra note 52 at 23 (Robert Eastwood).
58
Manitoba, Legislative Assembly, Standing Committee on Social and Economic Development,
Vol. LVII No.4 (22 November 2005) at 186 (Rudy Friesen).
59
Ibid. at 157 (Francis Pineda).
60
Supra note 54 at 232 (Dave Ennis).
61
Supra note 58 at 145 (Glenn Penner).
62
Ibid. at 157 (Francis Pineda) and at 150 (Philip Reynolds).
63
Ibid. at 163 (Kevin Sim).
64 Ibid.at 186 (Rudy Friesen).

The proposed change from < supervision 11
to "review" implies that supervision is not, in
fact, required, that delegation of the restricted scope of practice is indeed authorized
and that an architect need merely "review" drawings prepared unsupervised by others
in order to apply his or her seal. This is definitely not in the public interest. 65
He further explained that the current wording provides clarity and that The
Engineering and Geoscientific Professions Act never uses the term "review''. 66
However. the engineers countered that there was no safety concern. Ray
Hoemsen, an engineer, explained the engineers' code of ethics states that they
must not get involved in a project if they do not feel comfortable working in an
area. 67
Another architect, Mr. Eastwood, was concerned that the decision to include
professionals in alterations would depend on who is involved in the projects,
without reference to the professional acts. 68 However, Mr. Ennis said that the
Joint Board could deal with issues that arise as a result of the Building
Standards Board. 69 He also assured the legislature that engineers would not use
the 600m 2 restriction in multiples to work on larger buildings without an
architect. 70
4. Grandfathering provisions
Mr. Eastwood expressed some of the architects' additional concerns, including
the fact that the grandfathered professionals would be working outside the
direct authority of the professional associations who grant the professional
licenses. 71 On the other hand, Mr. Ennis said that the engineers• code of ethics,
which falls under The Engineering and Geoscientific Professions Act, would still
govern the engineers covered by the grandparenting clause. 72 In fact, Evan
Hancox, an engineer, expressed concern about the grandfathering clause,
saying:
65
Ibid. at 147-48 (Jim Wagner).
66
Ibid. at 148.
67
Ibid.at 149 (Ray Hoemsen}.
68
Supra note 52 at 24 (Robert Eastwood).
69
Supra note 54 at 232 (Dave Ennis).
70
Jones, supra note 1. Mr. Jonesj Manitoba's Deputy Fire Commissioner, explained that
initially, The Architects Act required architectural involvement for any building over 400m2,
while the Code required architectural involvement for any building over 600m2 • While the
court agreed with the architects, Bill 7 amended the Acts to be consistent with the Code,
so that an architect is now required for buildings over 600m2•
7t Supra note 52 at 23 (Robert Eastwood).
72
Supra note 54 at 232 (Dave Ennis}.

264 Underneath the Golden Boy
It is not necessary since the intent deals with the overlap that already lies within the
scope of engineering. I also think it sets a dangerous precedent that suggests that
engineers require permission from the MAA to practice engineering. 73
5. Allegations of bias
For the architects, Mr. Friesen noted that his profession felt that the board was
"heavily biased against architects," given the recent advertising by the
engineers, which would lead to the unfair treatment of architects. He also
expressed the concern that young architects would not want to stay in
Manitoba as a result of this Bill. 74 However, Mr. Ennis said that such moves
would be due to higher salaries in Alberta and not the legislation. 75 Richard
Marshall, another engineer, emphasized that the profession of architecture
would not die if the bill was passed, because engineers would continue to use
architectural services for their clients as needed for their specific projects. 76
6. Feedback from other stakeholders
In addition to architects and engineers, some other groups made presentations.
A general contractor and a member of a design build construction firm both
stated they generally did not need architects in their projects. The general
contractor supported the bill because it would not force her to hire an architect,
while the design builder said he would hire architects as required by specific
projects. As such, he asked the government to come up with legislation that
would satisfy the various groups. 77
Bruce Wardrope, an interior designer, also supported the bill. He said that his
clients were never exposed to dangerous situations, but as a result of the
McCawley Decision, he would have to involve architects in his projects. Thus,
he said that he would not get involved in any projects related to this issue until
it was solved. 78
Thus, during the committee stage, many points of view were presented by
people representing a variety of groups. It was then up to the legislature to sort
through all of these presentations, with an eye on the different opinions
advocated by the architects and engineers.
73
Supra note 58 at 160 (Evan Hancox).
74
Ibid.at 186 (Rudy Friesen).
75
Supra note 54 at 233 (Dave Ennis).
76
Supra note 58 at 158 (Richard Marshall).
77
Ibid. at 145 (Ellen Kotula) and at 156 (Norbert Hausch).
78
Supra note 58 at 173 (Bruce Wardrope).

E. Report Stage Amendments
On 29 November 2005, Dr. Jon Gerrard, the MLA for River Heights, proposed
three amendments, all of which were dismissed.
First, he suggested the removal of wording that may have allowed designs from
other jurisdictions to be downloaded from the Internet without approval from a
Manitoba architect. 79 Ms. Allan replied that the legislation was clear enough:
"The clause says that professional engineers can practice their profession where
an architect plans or has planned the building."
Dr. Gerrard then advanced a second amendment with regard to proposed
subsection 25(1) of The Architects Act. 81 This subsection was meant to put the
scope of practice back in The Architects Act, but Dr. Gerrard was concerned
that it could allow the construction of a huge complex under this legislation
without an architect, simply by putting up fire walls or links between smaller
buildings. Dr. Gerrard also wanted clarification on the details of altering
buildings. 82
Additionally, he proposed a mechanism for some flexibility: with a unanimous
vote, the Joint Board could make regulations for the Code so that the
government would not have to get involved. Dr. Gerrard concluded: "The fact
is that whether more architects or less are required on projects than prior to
September 16, 2005, will depend in part on the interpretation and how this act
actually works." 83
In response, Ms. Allan stated that the government realized the need for
flexibility to determine which work could be done by non.-architects. But, she
said, the Manitoba Building Code-a regulation under The Buildings and Mobile
Homes Act-would provide the needed flexibility. 84
Dr. Gerrard's proposed third amendment would have made building code
regulations subject to subsection 25(1) of The Architects Act, but it was no
longer necessary, given the rejection of the second amendment. 85
F. Third Reading and Royal Assent
Bill 7 went to its third reading on the same day as the Report Stage
Amendments. Dr. Gerrard asked the Minister to monitor the concerns he had
79
Manitoba, legislative Assembly, Debates and Proceedings, Vol. LVII No. 21B (29 November
2005) at 776 Gon Gerrard).
80
lbid. at 777 (Nancy Allan).
81
Ibid. at 778 Gon Gerrard).
82
Ibid. at 778-80.
83
Ibid. at 780.
84
Ibid. at 781 (Nancy Allan).
85
Ibid.at 782-83 Oon Gerrard).

266 Underneath the Golden Boy
previously raised. 86 On 30 November 2005, Mr. Schuler said that he was
impressed by the number of young people that came forward to passionately
share their views on the bill. He stated that the opposition did have some
concerns about the bill, which he had raised with the Minister. Mr. Schuler said
that the opposition felt the bill went too far. He raised one point in particular:
I would ask the minister if, one more time, .!he would take the opportunity and maybe
flag a caution that an arena of 1 QOO,seat capacity, though it could have a person
capacity much greater than just seats, and that maybe the minister could just put a
caution that the intent never was to build a huge building with only 1 000 seats in it. 87
Mr. Schuler acknowledged that construction must be pushed ahead in rural
areas that do not have access to professionals, but he stated that this must be
balanced with interests. 88
Despite the concerns raised, Mr. Schuler encouraged the Minister to move the
bill on to royal assent and proclamation in the same day. 89 Bill 7 was passed
unanimously and it was given royal assent later that day. 90
IV. ANALYSIS OF TilE BILL
Overall, Bill 7 added some sections and made SJme changes to all three acts in
an attempt to eliminate the discrepancies between them and to resolve the
dispute between the two professions. As will be discussed, it appears as though
the bill did get projects moving again, but both professional groups have
particular concerns about the impact of Bill 7.
A. Amendments to The Architects Act
The first part of the bill focuses on amendments to The Architects Acwhich,
according to the Explanatory Note, were intended to clarify when an engineer
could do what was considered architectural work. This is an accurate reflection
of a few sections in particular. Previously, The Architects Act specified who was
permitted to use the designation "architect" in s. 15(1). Section 3 of Bill 7
added s. 15(1.1) to The Architects Act to ensure that engineers could still legally
practice within their profession. As discussed previously, Dr. Gerrard proposed
an amendment to this section in the report stage. 9 t It appears that Dr. Gerrard
raised a valid concern, which was summarily dismissed-what is an acceptable
86
Ibid. at 791.
87
ManitobaLegislative Assembly, Debates and Proceedings, Vol. LVII No. 22 (30 November
2005) at 807 (Ron Schuler).
88
Ibid.
69
Ibid. at 808.
90
Ibid. at 818.
91
See Report Stage Amendments at 265, above.

design in one jurisdiction may not be safe in Manitoba, given geographical
differences. 92 Perhaps the phrase could not be struck out; however, it might
have been altered to avoid the possibility of downloading designs from the
Internet without a Manitoban architecfs approval.
In addition, s. 15 of Bill 7 provides for the grandfathering of a specific group of
engineers by adding s. 34 to The Architects Act. Section 22 of the bill adds
identical provisions to The Engineering and Geoscientific Professions Act under s.
68.1. As a result, those who were doing "competent architectural work" prior to
the McCawley Decision may continue to do this work until they retire. The
section also provides operational details for this clause. Section 15(1.2) was
added to The Architects Act to ensure that the engineers who fell under the
grandfathering clause could practice accordingly. The grandfathering clauses
seem reasonable, since they only apply to a small number of engineers who have
already been doing the relevant work in the past. 93 While there was concern
expressed about these grandfathered engineers working outside their
professional act, 94 the fact that the engineers would still be covered by their
professional code of ethics should provide sufficient public protection, especially
since they have already been doing this work.
Additionally, s. 10 of Bill 7 changed the definition "work that may be done by
non members'' under ss. 25(1) and (2) of The Architects Act. Previously, the
section was much more specific about the work that could be done by non
members; however, the amendment removes these specifications, referring the
reader to The Buildings and Mobile Homes Act and the "applicable building
construction code." As discussed previously, the architects were opposed to this
amendment. 95 In reality, it should not be a problem to have the details
contained in the Code, as long as the Code is clear and changes to it can be
made in a way that is fair to both sides.
Section 2 of the bill adds the definition of the "practice of professional
engineering,'' to The Architects Act. This section refers the reader to the
definition provided in The Engineering and Geoscientific Professions Act. More
importantly, this section of the bill also provides for an amended definition of
the term "architece' in s. 1(1) of The Architects Act. While the previous
defmition stated that architects would plan and "supervise" projects, the Act
now states that architects are to plan and "review" projects. This section in
particular may reduce the scope of practice of architects, as it seems to suggest
that an architect does not necessarily have the final say on the "erection,
92
See Third Reading and Royal Assent section at 265, above.
93
See Debate at the Second Reading section at 260, above.
94
See Committee Meetings section at 261, above.
95
Ibid.

268 Underneath the Golden Boy
enlargement, or alteration of buildings by persons other than himself." As
discussed, the architects were particularly opposed to this change. 96
While all stakeholders were given the opportunity to speak to the amendments
and they were told their input was valued, it does not seem as though their
criticism was taken seriously, especially since there were no changes made to
the bill following the committee stage. The architects' concerns are
understandable, since there appears to be a cost... saving incentive for consumers
to take advantage of the situations where architects are no longer required. The
long...standing dispute between the two professions suggests that this cost...saving
measure may be appropriate at times, since it has been exercised in the past.
One would hope that engineers will abide by their code of ethics and hire
architects as needed, acknowledging their own strengths and weaknesses.
Unfortunately, in reality, occasionally this co.-operation may not occur, for
whatever reason. As such, it is necessary to be clear when architects must be
involved in particular types of projects. In certain circumstances, such as arenas
and downloaded designs, the government should have insisted upon
architectural involvement for safety concerns.
The Explanatory Note says the amendment was meant to "facilitate the joint
practice" of the professions. For example, Bill 7 enables either an architect or an
engineer to be the prime consultant on a project. 97 Additionally, s. 3(3) of the
bill amended s. 15(2) of The Architects Act to enable architects to work for non.-
architectural firms. These changes do not appear to be controversial, since they
affect both professions and hopefully will help them work together. Mr. Ennis
said that architects have more employment opportunities as a result of the bill,
since engineering firms can now hire architects and provide architectural
services. He also noted that engineering firms traditionally pay more than
architectural firms. 98 Thus, this can be seen as a positive development for both
sides in the dispute.
Finally, with regard to the dispute resolution power of the Joint Board, both of
the Acts used to simply indicate that the board was to "consider such dispute or
matter and, if possible, make a joint recommendation." Section 14 of Bill 7
altered s. 33(4)(c) of The Architects Act to say that the joint Board must
consider any disputes in a "timely manner," and added s. 33(5), which makes
the decisions of the Joint Board binding on both associations. Section 21 of the
bill made identical changes to s. 68 of The Engineering and Geoscientific
Professions Act. Some stakeholders seem to be concerned that this level of
96
Ibid.
97
Section 13 of the bill added s. 32.1 to The Architects Act, and s. 20 of the bill added s. 66.1
to The Engineering and Geoscientific Professions Act. The wording in both Acts is virtually
identical.
98
Ennis 16 October 2006, supra note 13.

power has been given to the Joint Board. However, it will be beneficial,
particularly to consumers, to have a Joint Board that can make quick and
binding decisions. The resolution of deadlocks could be a problem if the Board
consists of an equal number of architects and engineers, since it will be common
to have a tie on such issues. Thus, a person who is independent of both
professions should be appointed to settle these issues.
Section 15 of Bill 7 requires the Joint Board to establish criteria to determine
whether an engineer can get a recognition certificate for doing architectural
work. The board has an equal number of architects and engineers. Unlike the
terms of reference agreed to under the 1998 legislation, in a tie vote, the chair
decides. 99
B. Amendments to other Acts and Coming into Force
Part 2 of the bill relates to The Buildings and Mobile Homes Act. This part is
quite short and it does not seem to raise any controversial points. As described
in the Explanatory Note, s. 17 gives the government the ability to amend the
Manitoba Building Code via The Buildings and Mobile Homes Act. It also states
that regulations may be retroactive.
Part 3 of the bill discusses amendments to The Engineering and Geoscientific
Professions Act. As stated in the Explanatory Note, these amendments simply
bring The Engineering and Geoscientific Professions Act into accordance with the
newly amended Architects Act, thus the key points have already been discussed.
Part 4 discusses the validation of the bill and the coming into force dates.
Section 23 reinforced the fact that regulations made under clause 15(c) of The
Buildings and Mobile Homes Act would be retroactive. Section 24 stated that the
Act came into force on the day it received royal assent, but that ss. 4 to 9 would
"come into force on a day to be fixed by proclamation." Section 24(3) stated
that $. 15(1.1) and 25(1) of The Architects Act would also be retroactive. As
such, engineers who were doing such work previously would be covered by this
Act.
Overall, the wording of Bill 7 is fairly straightforward. As a result, the question
will be whether putting the law into practice will actually lead to fewer disputes
between the two professions. The following sections consider the views of
stakeholders following the passage of Bill 7, suggesting that there is still a lack of
agreement between Manitoba's architects and engineers.
C. The Opinion of the Architects
Since there were no amendments following the Committee stage, all ci the
sections that were of concern to the architects remain present in Bill 7.
99
Ibid. Mr. Ennis believes that the chair, Bill Gardner, a lawyer, sided with the architects.

270 Underneath the Golden Boy
As discussed, at the Committee stage, the architects made it clear that they did
not want to leave it up to the Manitoba Building Code to determine who would
be required in which projects; however, Table 2.2.2.3 (''the Table") of the Code
now sets out the specifics. 100 For example, Group A, Division 3 of the Table
seems to be a particular loss for the architects, as it now indicates that an
architect "or" an engineer is required ror an arena with fixed seating capacity of
1 000 people or less. 101 Thus, an engineer may work alone on such a project. As
discussed above, both the architects and the opposition were against this
decision due to concerns for public safety. However, Mr. Ennis explained that
this was a political decision, because construction would be cheaper for
northern communities if they did not need to use architects. 102
An article in Canadian Architect analyzed the overall impact of the bill. The
author of the article, Terri Fuglem, stated that Bill 7 would "seriously curtail the
role of the architect in the province." 103 She said that the MAA negotiated with
APEGM and the government up until the bill was introduced, and it seemed as
though the parties were all in agreement. However, when Bill 7 was introduced
to the House, major changes had been made unbeknownst to the MAA. She
noted that the MAA was very "low key" prior to the legislative process, while
APEGM "aggressively lobbied the government, opposition members and
building industry groups., She also stated that the MAA did not get students
involved until later in the process, when they presented at the Committee. The
government did take note of the students' concerns, however, when they were
eventually raised. Overall, Ms. Fuglem's view was that "Bill 7 creates dangerous
ambiguities, seriously erodes the architect's purview, and allocates no new
jurisdictions to architects in retum.,. 104
D. The Opinion of the Engineers
On the other hand, Mr. Ennis said that the engineers pusued the legislation
because of the impact of the McCawley Decision on engineers, designers, and
the construction industry. 105
Mr. Ennis explained that ss. 4 to 9 of the Act did not come into effect
immediately because those provisions required the MAA to issue a corporate
license to entities not controlled by architects. The government delayed
100
Manitoba Building Code, supra note 16 at s. 3(2).
101
Ibid.
102
Ennis 16 October 2006, supra note 13.
103
Terri Fuglem, "Beware Bill 7" Canadian Architect (December 2005), online: Canadian
Architect .
104
Ibid.
105
Ennis 16 October 2006. supra note 13.

implementation to give the MAA time to change its bylaws and procedures
accordingly. 100
With regard to the specifics of the Table, Mr. Ennis noted that he thought that
Group F was supposed to say that an architect "or'' an engineer was required.
The reasoning, Mr. Ennis explained, is that this group consists of industrial
buildings where the owner has very basic expectations for the project. Mr. Ennis
said the Table's wording was changed to an architect "and" an engineer because
engineers employed by The City of Winnipeg to issue building permits either
did not support, or were otherwise instructed not to support the "engineer or"
option. Mr. Ennis said that the changes to the table do not return working
conditions as close to pre.-injunction conditions as the engineers had hoped it
would. In the end, Mr. Ennis stated that "the engineers won the battle, but the
architects won the war." 107
V. CONCLUSION
The Legislature certainly gave everyone a chance to speak to Bill 7. However, it
is somewhat surprising that no amendments were made following all of the
presentations at committee. It seems that the government wanted to pass this
bill after the years of fighting between the associations and the negative
publicity about the impact of the McCawley Decision on the construction
industry. While the opposition reminded the government not to rush through
the bill, it too wanted to resolve the dispute quickly to allow the professionals to
go on with their work. As a result, although Bill 7 went through a very inclusive
consultation process, it appears as though insufficient weight was given to
submissions from the architects and engineers at the Committee stage, given
the government's refusal to amend the bill.
The controversy over the involvement of architects in small arena projects was a
clear situation where the government had to try to strike the right balance
between costs and public safety. It is unclear whether the safety concern should
have outweighed the consideration of cost savings. Perhaps engineers are fully
capable of undertaking such jobs without architects. Additionally, me would
assume that engineers would obtain assistance from architects if they were
unfamiliar with the project's specifics, particularly since the engineers' code of
ethics would call for such action. However, if in reality engineers usually do
need architects for such projects, this legislation should read "architects and
engineers., Surely a client would rather wait to raise the funds to build a more
expensive but safe arena than to construct something that could cost even more
106
Ibid.
to7 Ibid.

272 Underneath the Golden Boy
money for repairs in the future, or worse yet, cause injuries to innocent victims.
However, the law has been written and time will tell whether it was well done.
For now, Bill 7 seems to have enabled both professions to get on with their work
following the McCawley Decision. Unfortunately, both sides seem unhappy
with the legislation, so it is questionable whether the "tactics" of one group
were superior to those of the other. The architects seem rather dissatisfied that
their scope of practice is not defined in The Architects Act, while the engineers
disapprove of some of the details of the legislation, such as the requirement for
an architect's involvement in an industrial building project. One would suspect
that the MAA will be closely monitoring the situation for young architects in
Manitoba, as well as the size of projects that engineers undertake without
consulting architects. Whether the associations will try to change the legislation
again in the future will most likely depend on the actual effect of this bill over
time.

Bill 207, The Personal Information
Protection and Identity Theft Prevention Act
TARIQ MUINUDDIN
l. INTRODUCTION
B
ill 207, The Personal Information Protection and Identity Theft Prevention
Act 1 ("PIPITPA") was a private members' bill that was introduced in the
fourth session of the 38rh Legislature of Manitoba. The purpose of the act
was to create laws regulating the collection and use of personal information in a
way that would make the province exempt from privacy regulation under the
federal Personal Information Protection and Electronic Documents Act 2
("PIPEDA"). PIPITPA did not make it to the committee stage and instead died
on the order table.
This paper will begin by discussing the background events and relevant
legislation leading up to the creation of PIPITPA. This section will give an
accounting of the privacy laws already in place at the federal and provincial
levels.
The next section of the paper will document the bill's progression through the
legislative process. It will discuss the process that created the bill and the people
who were involved. It will outline its history in the legislature from the first time
it was introduced to current developments related to the bill. 3
The final section of the paper will provide a substantive analysis of PIPITPA. It
will explain what PIPITPA does. It will address the arguments for and against
PIPTPA and show that PIPITPA is a good piece of legislation that would
improve privacy protection in Manitoba.
Bill 207, The Personal Information Protection and Identity Theft Prevention Act, 4rh. Sess., 38th
Leg., Manitoba, 2005 [PIPITPA}.
S.C. 2005, c. 5 [PIPEDA}.
This paper was submitted November 2006. All information contained herein is current to
that date, unless otherwise noted. An update is contained at the conclusion of the paper.

274 Underneath the Golden Boy
II. ORIGINS OF BILL 207
A. Background Information
In 1980, the Organization for Economic Co-Operation and Development
("OECD,) adopted the Guidelines on the Protection of Privacy and
Transborder Flows of Personal Data.' 1 Canada became a signatory to these
guidelines in 1984. 5 The guidelines did not necessarily call for legislation, but
rather set out principles that should be adhered to either by legislation or
voluntary standards. This led to the creation of the Model Code by the
Canadian Standards Association in 1996. 6 The Model Code set out 10
principles for privacy protection: accountability, identifying purposes, consent,
limiting collection, limiting use, disclosure and retention, accuracy, safeguards,
openness, individual access, and challenging compliance. 7 The Model Code was
created after extensive consultation with stakeholders, and it was further
envisioned that industries would adapt the code to better fit their
circumstances. 8
In 1995, the European Union adopted Directive 95/46/EC on the Protection of
Individuals with Regard to the Processing of Personal Data and on the Free
Movement of Such Data 9 {"the EU Directive"). This legislation set out policy
that had to be in place for European organizations that collect, use or disclose
personal information. This included policy regarding the transferring of this
information outside the European Union. Organizations were forbidden from
doing so unless the f:lreign country had suitable information protection. 10 would
even apply to foreign branches of European companies. The EU
Directive was to come into effect in 1998, and it was in response to this that the
Canadian government enacted PIPEDA in 2000. PIPEDA is essentially a
OECD, Guidelines on che Protection of Privacy and Transborder Flows of Personal Data,
Preface, online: OECD .
See Englander v. TELUS Communications Inc., 2004 FCA 387, [2005] 2 F.C.R. 572 at para.
12.
Canadian Standards Association, Privacy Code, online: Canadian Standards Association
.
Ibid.
Ibid. at 11 introduction". For example, banks could agree upon their own variation of the
Model Code, keeping in mind any statutory obligations they may already have, while video
rental stores could agree on a less onerous one.
EC, Directive 95/46/EC on the Protection of Individuals with Regard to the Processing of
Personal Data and on the Free Movement of Such Data, [1995] O.J. L. 281/31, online:
< http://eur-lex.europa.eu/LexUriServ/LexUriServ.douri=celex:3199510046:en:html >.
10
Ibid. at s. 57.

codification of the principles and obligations set out in the Model Code, which
is included as Schedule A of the act. 11
PIPEDA came into effect on 1 January 2001 for organizations that collect, use
or disclose personal information in connection with the operation of a federal
work, undertaking or business, or for organizations that disclose this
information outside their province. 12 These are two areas clearly within federal
jurisdiction. A second date-1 January 2004-was set as the date when
PIPEDA would come into effect for the remaining organizations unless the
organization's province had enacted substantially similar legislation of its own. 13
Initially, only Quebec had legislation that satisfied PIPEDA's requirements-in
fact, Quebec's legislation predates PIPEDA by seven years. 14 As the 1 January
2004 deadline approached, both Alberta and B.C. also enacted legislation that
has subsequently been deemed substantially similar to PIPEDA by the federal
privacy commissioner. 15
B. Current Manitoba Legislation
Besides PIPEDA, the other relevant privacy legislation in Manitoba is the
Freedom of Information and Personal Privacy Act 16 ("FIPPA''), the Personal Health
Information Act 17 ("PHIA"), and the provincial Privacy Act. 18
FIPPA governs how the provincial government can collect, use and disclose
personal information. 19 This would include, for example, information related to
a driver's license or student loan. The act also provides protection for public
sector workers. 20 PHIA covers the use of personal information by health
professionals, hospitals, and others who have access to health information. 21
The Privacy Act creates a tort of invasion of privacy. It protects against
11
See PIPEDA, supra note 2 at Sch. I. In contrast, the US government was able to negotiate
with the EU so that American companies that did business with the EU only had to agree
to a voluntary code. Perhaps showing a difference in relative bargaining power.
12
n
PIPITPA, supra note 1 at s. 72, proclaimed in force 1 January 2001, SI/2000-29, C. Gaz.
2000.11.914.
See Office of the Privacy Commissioner of Canada, Implementation Schedule, online: Office
of the Privacy Commissioner of Canada .
14
An Act respecting the protection of personal information in the private sector, R.S.Q. c. P-39.1.
15
See Personal Information Protection Act, S.A. 2003, c. P-6.5 [PIPA] and Personal Information
Act, S.B.C. 2003, c. 63.
16
S.M. 1997, c. 50, C.C.S.M. c. F175.
17
S.M. 1997, c. 51, C.C.S.M. c. P33.5.
18
R.S.M. 1987, c. Pl25, C.C.S.M. c. P125.
19
Supra note 16 at s. 2.
20
Ibid.
21
Supra note 17 at s. 2.

276 Underneath the Golden Boy
activities like surveillance, spying, and following, as well as "the unauthorized
use of someone's name, voice, likeness, or personal documents". 22 Most other
provinces also have their own FIPPA, PHIA and Privacy Act.
Ill. BILL 207 IN THE HOUSE
A. The Political Motivation
Mavis Taillieu, the MLA for Morris, is the Progressive Conservative ('PC")
critic for culture and tourism. As part of this portfolio, she is also the critic for
matters relating to PIPPA. The idea for the proposed legislation came to her as
part of this latter responsibility. 23
Ms. Taillieu wanted to extend the benefits FIPPA gave to employees in the
public sector on a provincial level to employees in the private sector. To her,
the almost weekly reports of yet another company losing a laptop filled with
personal information that shouldn't have been on a laptop in the first place are
not the reason for the legislation. Rather, she said, they illustrate a situation
that she believes the province should improve. 24
Ms. Taillieu knew before she began working on PIPITPA that there was almost
no chance of the government passing it. 25 Outside a minority government
situation, private members' bills are rarely passed. Only five of the 38 private
members' bills introduced during the previous sessions of this legislature became
laws.
B. Drafting of the Legislation
Ms. Taillieu initially attempted to get the legislation drafted by the services
available at the legislature. However, the people who were available to draft the
bill did not have the grasp of privacy law she was looking for. Ms. Taillieu knew
of Winnipeg business lawyer Brian Bowman because of his regular articles on
privacy law in the Winnipeg Free Press. After meeting with Ms. Taillieu, Mr.
Bowman provided his expertise and drafted the legislation, using Alberta's
PIPA as a template and adapting it to fit Manitoba. 26
12
Ian J. Turnbull, Privacy in the Workplace: The Employment Perspective (Toronto: CCH
Canadian, 2004) at 107.
23
Interview of Mavis Taillieu by Tariq Muinuddin (23 November 2006) [Taillieu].
Zi Ibid.
zs Ibid.
26
Ibid.

C. History in the Legislature
The bill was introduced as the Personal Information Protection Act in November
2004. 27 It had its second reading the following May. There was some debate
about the bill, but because the government did not want to adopt the bill it was
not referred to a committee.
Feeling that the issue was too important to ignore, Ms. Taillieu reintroduced
the bill as the Personal Information Protection and Identity Theft Prevention Act in
the fourth session of the 38th legislature. The duty to notify was added to the bill
at this point, and its name was changed to reflect this. It was hoped that adding
"Identity Theft Prevention" to the title of the bill would generate some interest
in the public, thus increasing pressure on the government to consider the bill. 28
Again, there was some debate at the second reading, but the bill wasn't referred
to a committee. The bill has been reintroduced in the current session of the
legislature, but it does not appear that a different outcome will result. 29
IV. ANALYSIS OF BILL 207
A. What Does PIPITPA do
The purpose of this Act is to govern the collecrion, use and disclosure of personal
information by organizations in a manner that recognizes both the right of an
individual to have his or her personal information protected and the need of
organizations to collect, use or disclose personal information for purposes that are
reasonable. 30
Prior to PIPEDA, the only statutory protection afforded to Manitobans with
respect to privacy was:
• For data collected, held and used by the provincial government (FIPPA)
and federal government (through the federal Privacy Act 31 ); and
• For health information handled by doctors, hospitals, the province, and
potentially insurers (through PHIA).
Currently, organizations that are covered by the Privacy Act (such as federal
government organizations) are not covered by PIPEDA. 32
PIPITPA would extend privacy protection similar to that found in FIPPA or the
federal Privacy Act to interaction with all organizations that use, collect or
27
BUl 200, The Personal Information Protection Act, 3«1 Sess., 38rh Leg.• Manitoba, 2005.
28
Taillieu, supra note 23.
29
Bill 200, The Personal Information Protection and Identity Theft Prevention Act, ,Sth Sess., 38ch
Leg., Manitoba, 2006 was not enacted when the legislation session ended on 20 April 2007.
30
PIPITPA, supra note 1 at s. 3.
31
Privacy Act, R.S.C. 1985, c. p,21.
32
PIPEDA, supra note 2 at s. 4(2) (a).

278 Underneath the Golden Boy
disclose personal information for a commercial purpose in the province. 33 The
act would also provide privacy protection to employees in Manitoba•s private
sector. This would limit and control how employers in the private sector could
use and collect their employees' personal infurmation. 34 Currently, there is no
such protection. PIPITPA also would introduce a duty to notify affected people
if an organization loses control of their information. 35 This second point is a
novel feature for privacy legislation in Canada.
The cornerstone of this legislation is consent. Any organization that wishes to
collect personal information must disclose its reasons for requesting this
information. It must also specify how it will use the information. 36 The
organization will then be able to use this information, but only for the uses that
have been consented to. 37 When making a request, an organization cannot ask
for consent to disclose more information than it requires. 38 If the organization
wishes to use the information in an additional way at some later time it must
obtain consent for this new use. 39 For the purposes of the legislation consent
does not have to be explicit. Generally, providing the information requested will
constitute consent. 40
Information collected prior to the enacting of PIPITPA ais deemed to have
been collected pursuant to consent given by that individuar'. 41 PIPEDA has no
such clause and technically organizations would be required to dispose of any
personal information that has not been collected in a PIPEDA compliant
mannerY Under PIPITPA, organizations would be able to use this information
for the purposes already consented to without having to ask for the consent
again. However, if they wish to use the information for a new purpose they
would have to get the consent of the person. 43
33
PIPITPA, supra note 1 at ss. 3 and 4(1).
34
Ibid.at s. 3.
35
Ibid. at s. 34(2).
36
Ibid.ats.l3(1).
37
Ibid. at s. 8 (4).
38
Ibid.atss. 7(2) and 11(2).
39
Ibid. at s. 8 (4).
40
Ibid. at s. 8(2).
41
Ibid.ats.4(4)(a).
42
See Christopher S. Wilson & Jeffrey F. Vicq, "Exempting B.C. and Alberta: Stitching the
Seamless Continuum" (2004) 1 Canadian Privacy Law Review 97 at 100: "PIPEDA
contains no grandfathering provisions for information collected before it carne into force.
Technically, organizations were required to destroy all personal information in their
possession because arguably even the retention of the information without consent
contravened PIPEDA."
43
Ibid.

Like PIPEDA, PIPITPA requires organizations to designate someone to ensure
that the organization complies with the act. This person (or people) needs to
have sufficient authority within the organization themselves, or they should
have "sufficient official senior management support" 44 to ensure they will be
listened to. 45 This requirement affects organizations large and small equallyeven
a comer video store would need a privacy officer.
Section 34(2) of PIPITPA places an obligation to notify on organizations that
have personal information in their custody or control that is stolen, lost or
accessed in an unauthorized manner. If such an event occurs, the organization
is required to notify the people affected as soon as is reasonably practicable.
Surprisingly, this is not an element of PIPEDA, or of the similar provincial acts.
B. Arguments in Favour ofPIPITPA
I. Constitutionality of PIPEDA
PIPEDA is a federal act. As such, there is some concern about its jurisdiction
over matters which are purely of a provincial nature. 46 As large industry players
already follow the Model Code, many practitioners had thought it highly
unlikely that anyone would challenge the constitutionality of the act. The legal
costs involved in bringing a case all the way to the Supreme Court, where it
would likely be appealed to, would be prohibitive for smaller organizations.
There is also the issue of economic harm should PIPEDA be ruled
unconstitutional. Without the law in place, companies doing business in the EU
would not be able to send any personal information to organizations in Canada.
But in December 2003 the Government of Quebec initiated a challenge to the
constitutionality of PIPEDA. 47 The case is still before the courts, with the
province having submitted an affidavit in July 2006. 18 If Manitoba wants the
protection that PIPEDA offers, it can do so by enacting substantially similar
provincial legislation such as PIPITPA that would still protect Manitobans in
the event of a successful constitutional challenge to PIPEDA. Furthermore, if
44
William Charnetski, Patrick Flaherty & Jeremy Robinson, The Personal Information
Protection and Documents Act: A Comprehensive Guide (Aurora, Ont.: Canada Law Book,
2001) at 39.
45
Passing the responsibility to a person with little authority such as a mail clerk would likely
not meet PIPITPA's requirements, unless it is made clear that the person can actually
enforce compliance within the organization.
46
An example would be a local video store that records patron information, such as records
of what movies they had rented.
47
See Simon Chester, 11 PIPEDA Reference Raises Vital Constitutional Questions" (2004) 1
Canadian Privacy Law Review 52 at 55.
48
Michael A. Geist, PIPEDA Hearings-Day 01 (Industry Canada), online: MichaelGeist.ca
.

280 Underneath the Golden Boy
the other provinces of Canada enacted their own substantially similar
legislation, most of the issues regarding PIPEDA's constitutionality would be
rendered moot.
2. Protection of employees in the private sector
Currently, there is no legislation in place to protect the personal information of
workers in the private sector. This means that organizations can collect data
from their employees without consent. The organizations have no obligation to
keep this information secure, and face no real consequences if it is accessed by
someone who shouldn't access it. The current situation lets organizations
collect far more information about their employees than they need, and
provides no oversight for how this information is to be stored, used or disposed
of.
An incident involving a McDonald's restaurant in Winnipeg is an example of
what is possible. 49 In 2004, the restaurant started using palm scanners instead of
punch cards to keep track of when employees got to work and left. McDonald's
can keep these fingerprints for as long as it wants. It can pass them along to its
business partners--or the Department of Homeland Security. The organization
does not have to inform affected employees if unauthorized access to this
information has occurred. As a result, a McDonald's personnel file contains a
person's name, address, social insurance number and fingerprints-a goldmine
for identity theft, which arose because McDonald's wanted to keep track of its
employees' hours.
There is nothing in PIPEDA that will provide protection in this situation, so it
is up to the Province of Manitoba to resolve this issue. The Manitoba
Federation of Labour is one organization that wants this protection, 50 and it
speaks for the very people affected. Passing PIPITPA would be one way of doing
this.
3. Enforcement
1
Under PIPEDA, the dispute resolution process is as follows: 5
• An individual 52 makes a complaint to the Privacy Commissioner in
Ottawa;
49
Graeme Smith, 11 ls Big McBrother invading workplace privacy" The Globe and Mail (13
January 2004) .
50
Taillieu, supra note 23.
51
Turnbull, supra note 22 at 85.
52
There is no requirement that the individual be directly affected by the act complained of.
See H. H. McNairn & Alexander K. Scott, A Guide to the Personal Infonnation Protection
and Electronic Documents Act, 2006 ed. (Markham, Ont.: LexisNexis Canada, 2006) at 55.

• The Commissioner gives a nonbinding recommendation after
investigating the matter;
• If one of the parties is unhappy with the result, it can appeal to the
Federal Court (which would be in Winnipeg for parties in Manitoba).
Similarly, if the organization doesn't follow the Privacy Commissioner's
recommendation, the complainant can apply to the Federal Court for a
hearing on the matter; and
• From this point on the regular ttial process is followed.
PIPEDA is primarily enforced by the individuals who make complaints. 53
Making complaints to the Privacy Commissioner is a relatively straightforward
and inexpensive process. But once proceedings move to the courts, the expense
becomes out of reach for most people. In both Alberta and B.C., the provincial
Privacy Commissioners have order making powers-their decisions must be
followed.54
As it was proposed, PIPITPA would not be able to create a provincial office of
Privacy Commissioner, or give it order making powers. But this is only because
of the legislative limitations of private members' bills-they cannot have any
provisions for penalties. If the government wished, it could fix the legislation, or
introduce a stronger version of its own that would create a provincial Privacy
Commissioner with the power to make binding decisions with respect to
complaints. Under a "Hxed" PIPITPA, any appeal of the Privacy
Commissioner's orders would be heard in the Court of Queen's Bench. 55 This
means those living outside the Winnipeg area wouldn't have to travel as far to
get to court.
4. The duty to notify
PIPITPA's duty to notify provisions are an important tool to prevent identity
6
theft.5 It is almost common news to hear of laptops with sensitive information
being stolen, and such breaches can have a significant effect on the people
whose information has been taken. Requiring organizations to notify the people
who are potentially affected by such breaches forces them to take precautions
and increase their vigilance with respect to identity theft. It also places the
organization in a position where it has to go before the people affected and
explain how their personal information was compromised. This speaks directly
53
The Privacy Commissioner has the power to initiate a complaint of its own motion. See
54
55
56
ibid. at 56.
Christopher S. Wilson, supra note 42 at 101.
Actions commenced under PIPITPA would be heard in Manitoba's Court of Queen's
Bench, which sits throughout the province. PIPEDA actions, however, are heard in Federal
Court, which only sits in Winnipeg and is thus less accessible to litigants.
PIPITPA supra note 1 at s. 34(2).

282 Underneath the Golden Boy
to the principle of accountability in the Model Code. Absent such a duty, it
would be up to individuals to check up on all the organizations that have their
personal information to make sure that it is still indeed safe.
5. Parliamentary review
PIPEDA includes provisions for its review every five years by a committee of
Parliament. These reviews provide an opportunity to make changes, such as
including a duty to notify. Parliament need not wait until a review period to
make this change, however. But, since the other provinces do not currently
have this duty, it is doubtful there is enough will for it to be mandated across
the country. It is unlikely that Manitoba's privacy concerns would be enough to
get Parliament-which is dominated by Ontario and Quebec-to listen.
PIPITPA would allow Manitobans to address these concerns without worrying
about what the other provinces want to do. PIPITPA also includes its own
provisions for review to make sure that stakeholders can voice their concerns
with the legislation. It would come up for review 18 months after being enacted
and then at least every three years after that. 57
6. Centralization of privacy law
The provincial government has started to introduce amendments to existing
legislation to increase privacy protection in Manitoba. While this is a positive
first step, there is a compelling argument to be made for having a "visible,
broadly applicable statute". 58 One element of this argument would be efficiency.
Instead of having to parcel out added roles and responsibilities to regulators that
were outside of their core competencies, having one office (that of the Privacy
Commissioner) working on privacy issues would allow expertise in the area to
be consolidated and used more effectively. One uniform statute would also
increase the clarity of the law. Stakeholders would know that they only had to
look at one statute, and only had to contact one office to deal with privacy
issues. This makes it easier for organizations to comply with the law because it
would be accessed at a single location. The proposal also makes it easier for
individuals to learn about and act on their rights, because it reduces the amount
of searching they have to do.
Having only one piece of legislation would also increase the visibility of the law.
According to Ms. Taillieu, who brought PIPITPA forward, many stakeholders
haven't heard of PIPEDA, or only vaguely know of its scope and effect. 59 By
57
Ibid. at s. 43 (1).
58
Bryan Schwartz & Darla Rettie, "Bridging the Privacy Gap: The Case for Enacting
Substantially Similar Privacy Legislation" (Paper presented to the 2004 Isaac Pitblado
Lectures, 19 November 2004) Privacy--Another Snail in the Ginger Beer, (Winnipeg: Law
Society of Manitoba, 2004) at 5.
59
Taillieu, supra note 23.

.. , u:; .1. t:, wrt'u mrorman:on rrotecnon ana 1aenm.y 1 n.eJt rrevenuon net .!.O.l
creating a new privacy law, the province would send a strong message to
Manitoba stakeholders that privacy is an issue it takes seriously.
7. Privacy legislation in other provinces
Currently, Quebec, Alberta and B.C. 60 have their own provincial legislation
which is substantially similar to PIPEDA. As their laws were created after
PIPEDA, Alberta's and B.C.'s politicians must have had good reasons for
wanting to have their own privacy legislation instead of PIPEDA. Excepting the
duty to notify, all the advantages PIPITPA has over PIPEDA are present in
Alberta and B.C's privacy legislation. This makes sense, because PIPITPA is
based on Alberta's PIPA. 61
The reasons for PIPITPA that have been described in this section and the
previous one are not the only ones considered by the provinces. Alberta's PIPA
was designed to be easier for small businesses to comply with. Also, it only
affects not for profit and charitable organizations if they are carrying out
commercial activities. 62 In the debate during the second reading of PIPITPA,
Nancy Allan, the Minister of Labour, stated that no other province was
developing private sector privacy legislation 63 and used this as another reason to
hold off on passing Bil1207. This was a strange thing for her to say, considering
PIPITPA was based on similar Alberta and B.C. legislation that covers the
private sector.
C. Arguments Against PIPITPA
1. The bill isn't substantially similar to PIPEDA
One set of arguments against PIPITPA focuses on duplication between federal
and provincial privacy legislation. Provincial legislation that is not substantially
similar to PIPEDA would create a situation where Manitoba organizations
would have to comply with two sets of regulations. It is thus highly desirable to
create provincial legislation that is deemed to be substantially similar to
PIPEDA. Otherwise, the government has noted, unnecessary duplication, costs
and confusion would result. 64
60
See supra note 14 (Quebec legislation) and supra note 15 (Alberta and B.C. legislation}. In
fact, legislators from Alberta and B.C. worked together in drafting their legislations:
Colonel Michel W. Drapeau & Marc -Aurele Racicot, Protection of Privacy in the Canadian
Private and Health Sectors (Toronto: Thomron Canada, 2006} at AB-1.
61
Brian Bowman, "NDP should support privacy bill or say why not" Winnipeg Free Press (1
March 2006}.
62
Drapeau, supra note 59 at AB-1.
63
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVII No. 72A (18 May
2006) at 2274 (Nancy Allan).
64
Ibid. at 2271 (Greg Selinger).

284 Underneath the Golden Boy
To be substantially similar, legislation must:
• Incorporate the 10 principles in Schedule 1 ofPIPEDA;
• Provide for an independent and effective oversight and redress
mechanism with powers to investigate; and
• Restrict the collection, use and disclosure of personal information to
purposes that are appropriate or legitimate. 65
This bill is a private members' bill. As such, it cannot contain any penalty
provisions. Contrast this with PIPEDA, whose penalties include a maximum of
$100 000 in fines. 66 As a result, any legislation that sought to be substantially
similar should have penalties as well. The legislation's absence of penalties
means it would not be deemed substantially similar to PIPEDA, resulting in
duplicate legislation.
Similarly, to be substantially similar, PIPITPA would have to have its own
oversight and investigatory mechanism. These features cannot be included in a
private members' bill. 67
However, as previously discussed in the section on enforcement, this is
something the government would be able to fix if it decided to go this route.
2. Education
The government also stated it felt it was more important to focus on education
about identity theft so people and organizations could be more aware of the
risks and responsibilities that they face. 68
To that effect, it had created websites featuring educational kits that allow both
individuals and companies to learn how they can combat identity theft. 69
However, there is nothing preventing the government from focussing on
education while also introducing a new law that dealt specifically with identity
theft and personal information. It could even be argued that a new law would
increase the motivation for stakeholders to make use of the educational
materials prepared by the government as they would have a practical reason for
doing so. The education and legislation would complement and reinforce each
other.
3.Cross..border information
One significant issue with any provincial law like PIPITPA is that it would not
have jurisdiction over information that crosses a border. Many companies would
65
Schwartz, supra note 57 at 1.
66
PIPEDA, supra note 2 at s. 28(b).
67
Supra note 62 at 2272 {Greg Selinger).
68
Ibid. at 2271.
69
Ibid.

e subject to both pieces of legislation even if PIPITPA was deemed
substantially similar to federal legislation because they do business in the United
States, other provinces or other countries. Forcing these companies to deal with
two sets of regulations-even if the provincial legislation is similar to the federal
one--decreases the utility of the provincial legislation. This is what currently
happens in Alberta:
Thus, it is possible that where the collection of information occurred in Alberta but
the organization subsequently discloses such information outside of Alberta, PIPA
would govern the collection activity and PIPEDA would govern the subsequent
disclosure activity. This is consistent with an activities-based view on the regulation of
privacy. 70
Organizations would have one set of laws for the collection and use of the data
within Manitoba, and another for its use outside the province. This cannot be
avoided. It may be mitigated, however, by the fact that being compliant with
PIPITPA will usually make an organization compliant with PIPEDA as well. If
the organization applied the standard of care needed for the provincial
legislation, it would also meet PIPEDA,s requirements.
4. Cost to the province
The cost associated with enforcing the act is another aspect that may have been
in the mind of the government. If the bill was passed, the province would have
to create and fund· its enforcement and investigatory mechanism. However, the
province may be able to save money by having the cases go to Federal Court. By
having only the federal act, the provincial government will be able to offload
the costs associated with it. This was pointed out by Cliff Cullen, the MLA for
Turtle Mountain who said during the second reading of the bill: "It is not a
matter of passing the buck, and I know this government likes to pass the buck
and rely on the federal government to do their work for them". 71 The
government will have to decide if the cost of creating a Privacy Commissioner
and enforcing the law is worth the benefits arising from PIPITPA. 72
5. Consultation with stakeholders
The government also raised the issue of inadequate consultation-in its mind,
Ms. TaUlieu did not engage in enough consultation with stakeholders to see if
there was public support for the bill. 73
70
Stephen D. Bums, "2004: Alberta's First Year of Private Sector Privacy" (2005) 2 Canadian
Privacy Law Review 68 at 69.
71
Supra note 62 at 2277 (Cliff Cullen).
72
Ontario's Information and Privacy Commissioner's budget for 2006-2007 is an estimated
$12 132 800. See Information and Privacy Commissioner of Ontario, 2006 Annual Report
(Toronto: Information and Privacy Commissioner of Ontario) at 60.
73
Supra note 62 at 2274 (Nancy Allan).

286 Underneath the Golden Boy
Ms. Taillieu did engage in consultation, but she found that most stakeholders
didn't know enough about the issue to make any contribution. Nationally, there
is very little awareness of or compliance with PIPEDA. In her article "The
PIPEDA Five Year Review: An Opportunity to be Grasped", Philippa Lawson
wrote extensively on the lack of compliance with, and awareness of, PIPEDA.
On compliance, she said that "few studies of business compliance with PIPEDA
appear to have been conducted, or at least made public. The only significant
study is shrouded in mystery." 74 Speaking to that study, Lawson said it:
Found that "only a small number of businesses have established clear and specific
processes for the collection, use and disclosure of personal information", and that
11
most companies have ... written weak, vague policies that serve only to try to appease
customers", despite their obligations under PIPEDA. 75
Moreover, Lawson said, this study does not appear to be publicly available. She
also cited two other limited PIPEDA compliance studies, one of which
described "... continuing problems with these corporations' use of 'implied
consent' obtained by 'opt out' mechanisms". The other study, meanwhile,
concluded that business "implementation of the PIPED Act has been ad hoc at
best and non existent at worst". 76
On the subject of awareness, Lawson referred to a recent poll commissioned by
the Privacy Commissioner. The poll found Canadians are generally in the dark
about the country's privacy law. Most strikingly, over half of those who were
surveyed were unaware of "any laws that help Canadians deal with privacy and
the protection of personal information". 77 Commenting on the findings, Lawson
said:
This information deficit no doubt explains in part why more complaints are not
forthcoming, and seriously undermines the effectiveness of a complaints- based
enforcement regime. Either public awareness needs to be drastically improved, or the
approach to enforcement under PIPEDA needs to be altered so as not to rely so
heavily on individual complaints. 78
The studies support Ms. Taillieu's assertion that stakeholders do not know
enough to make consultation anything more than an exercise in education. She
also argues that government doesn't always have to react to events but canand
should-be proactive in situations where it sees the need for a law. 79 This
might require action against serious stakeholder opposition, such as in the case
74
Philippa Lawson, "The PIPEDA Five-Year Review: An Opportunity to be Grasped" (2005)
2 Canadian Privacy Law Review 111 at 111.
75
Ibid.
76
Ibid.
77
Ibid. at 112.
78
Ibid.
19
Taillieu, supra note 23.

J.rtt: r ·• muu mrormatzon rro1:ecuon ana wenncy L neJt rrevenuon .t\Ct .GOt
of seatbelt laws which were almost universally rejected by stakeholders but were
passed regardless of that opposition. Presently, it is only after something bad
happens to them, such as having their identity stolen, that people begin to
think about privacy issues and laws. If the province waits for enough people to
learn about privacy protection the hard way, it will already be too late.
6. Vnifonnity of laws
The government also generally favours one set of legislation across the country.
It feels that one law would provide greater uniformity across the country and
reduce the cost of doing business across the country. 80 There are two rebuttals
to this.
The first is that even if there were 13 laws across the country, it would not be
hard for organizations to adopt procedures that simultaneously comply with the
requirements of all jurisdictions because the laws would be substantially similar.
This is especially true because the laws are all supposed to be based on the
Model Code. 81
The second rebuttal is that in many cases the provincial laws are actually more
business friendly. Alberta's PIPA has been hailed by businesses as being superior
to PIPEDA. 82 So it is quite possible that businesses would find it advantageous
to work under a scheme where the provinces have their own legislation that is
both substantially similar to PIPEDA and better for business as well.
7. Technological advances
The government also seems to have a desire to combat identity theft through
the use of smart cards. But at the same time, it also points out that smart card
technology is still a ways from being as robust and secure as it would like. Jim
Maloway, the MLA for Elmwood, gavthe example of Ontario's Harris
government's plan to implement smart cards following the lead of banks. 83 But
after a few years and a lot of money, the government concluded the technology
wasn't quite ready. The banks still haven't moved to smart cards, and in fact
find it cheaper to pay out losses whenever identity theft happens instead of
trying to stop the problem with smart cards. 84 He suggested the province should
wait until the banks have developed a secure smart card technology (in effect
offl.oading the costs to the banks) before it moves in that direction. 85 In the
80
Supra note 62 at 2277 Qim Maloway).
61
See PIPITPA, supra note 1 at Sch. I, which is a codification of the Model Code.
92
Bowman, supra note 61.
83
Supra note 62 at 2278 Qim Maloway).
84
Ibid.
85
Ibid.

288 Underneath the Golden Boy
meantime, he said the government should educate people and encourage them
to use paper shredders.
Any discussion of smart cards invariably includes the use of Radio.-Frequency
Identification (uRFID") tags. Advances in RFID have resulted in tremendous
improvements in their storage capacity, and reductions in their cost and size.
Presently, researchers have developed "smart dust" that is so small it is invisible
to the human eye. 86 The U.K. government already has RFID.-enabled smart
identity cards, so there is no need for the government to wait for the banksthe
technology is good enough right now. The security of the U.K. smart cards
has also already been compromised. 87 It is a fact of life that moments after a
better safe is built, someone will find a way to open it. There is never going to
be a point where smart card technology will be perfectly secured. If the
government is serious about implementing them, there is no pressing
technological reason barring their introduction.
B.Credit
The opposition raised responsibility for the bill as another reason why the
government was opposed to Bill 207. 88 If the government made the
amendments necessary to make the bill work, Ms. Taillieu and the PC party
would receive most of the credit for the bill. On the other hand, if the
government rejects the bill, but then introduces a similar bill at a later time, it
would be able to get credit for the effort put in by Ms. Taillieu. Another, slightly
less obvious way for the government to get credit for the bill would be to amend
existing bills to include privacy provisions. This would allow the government to
claim it had changed a number of laws to better protect the privacy of
Manitobans. This session, for example, the government introduced BillS, The
Personal Investigations Amendment Act. 89 This act will add protective
mechanisms for people who suspect they may be the victim of identity theft.ro
9. PIPEDA's review process
PIPEDA comes up for review this year. The government believes it can make its
voice heard during the review process and have any of its concerns dealt with at
86
Ann Cavoukian, nTag, You're It: Privacy Implications of Radio Frequency Identification
(RFID) Technology" {2004) 1 Canadian Privacy Law Review 76 at 76.
87
Steve Boggan, "Cracked it!" The Guardian (17 November 2006), online: Guardian
Unlimited . ',
88
Manitoba, Legislative Assembly, Debates and Proceedings, Vol. LVI No. 53A (25 May 2006)
at 2990 (Kevin Lamoureux).
89
5th Sess., 38th Manitoba, 2006 (assented to 7 December 2006), S.M. 2006, c. 28.
90
Ibid. at s. 12.1.

that time. 91 The review process is ongoing at the time of this paper, thus the
potential changes to PIPEDA are not yet known.
D. The Bottom Line on PIPITPA
PIPITPA has too many benefits to keep it from being eventually enacted. 92 It
replaces PIPEDA with a law that is dearer, better for business, better for
employees, and better for the privacy of Manitobans. The arguments for it are
compelling and reasoned. The arguments against it sound more like the excuses
of a government that was caught flat footed by the bill and is trying to buy time
as it figures out what to do than bona fide criticism.
It is likely Ms. Taillieu's efforts have not gone unnoticed. The Personal
Investigations Amendment Act will allow people to place a security alert on their
credit report if they feel someone may be trying to use their identity to apply for
credit. 93 The identity of the person using the credit must be verified if a security
alert is present on a credit report. It is possible the government will try to
introduce other amendments that will have the same effect as PIPITPA would
have.
V. CONCLUSION
PIPITPA represents a very good political move by Ms. Taillieu and the PC
party. They put the government under pressure by introducing and
reintroducing the bill each session. In the highly improbable event the
government passed the bill, a great deal of political credit would go to the PCs.
If the government were to flat out vote against the bill-instead of simply not
voting on it as it has done twice already-it would be on record as being against
the bill and policy that most stakeholders in the province would view as
desirable. During debate on PIPA (the original incarnation of PIPITPA), Mr.
Kevin Lamoureux, the MLA for Inkster, wanted the government to vote on the
bill so its position would be on record. 94
If it continues its waiting, the government will be seen as doing nothing on an
issue that is becoming increasingly important both provincially and nationally.
Furthermore, Ms. Taillieu's reintroduction of the bill at each session has forced
government to give reasons for failing to pass the bilL These statements,
recorded in Hansard, could be used against it either during an election
campaign or in the event of a high profile breach of privacy.
91
Supra note 62 at 2272 (Greg Selinger).
92
If not PIPITPA itself, some other substantially similar legislation should be enacted.
!H Supra note 88 at s. 12.1.
94
Supra note 87 at 2989 (Kevin Lamoureux).

290 Underneath the Golden Boy
VI. Update
A. The Current Status of PIPITPA
As previously noted, PIPITPA was reintroduced in the fifth session of the 38th
Legislature. In that session the bill only had a first reading and there was no
further debate on it. PIPITPA has been re..introduced once again in the first
session of the new Legislature, but again there is very little chance of it being
enacted. 95
B. The PIPEDA Review Process
The federal Standing Committee on Access to Information, Privacy and Ethics
held hearings on PIPEDA between 20 November 2006 and 22 February 2007.
Its report was presented to Parliament on 2 May 2007. Of the 25
recommendations made in the report, the final three related to a duty to notify.
From the report:
Recommendation 23
The Committee recommends that PIPEDA be amended to include a breach
notification provision requiring organizations to report certain defined breaches of
their personal information holdings to the Privacy Commissioner.
Recommendation 24
The Committee recommends that upon notified of a breach of an organization's
personal information holdings, the Privacy Commissioner shall make a determination
as to whether or not affected individuals and others should be notified and if so, in
what manner.
Recommendation 25
The Committee recommends that in determining the specifics of an appropriate
notification model for PIPEDA, consideration should be given to questions of timing,
manner of notification, penalties for failure to notify, and the need for a "without
consene' power to notify credit bureaus in order to help protect consumers from
identity theft and fraud. 96
At present, there has been no government response to the report. However, it
seems likely many of the recommendations will at some point be implemented
because there is majority support for them. While the adoption of such
provisions into PIPEDA would reduce some of the benefits of PIPITPA, it
would still be beneficial for Manitoba to enact PIPITPA or similar legislation.
The committee itself noted that much of the PIPEDA review process is aimed
95
Bill 206, The Personal Infonnation Protection and Identity Theft Prevention Act, 1st Sess., 39'h
Leg., Manitoba, 2007.
96
Parliament, Standing Committee on Access to Information, Privacy and Ethics, "Statutory
Review of the Personal Information Protection and Electronic Documents Act (PIPEDA)"
inHouse of Commons Debates, No. 145 (2 May 2007) at 1520 (Hon. Torn Wappel).

at "fine,tuning" PIPEDA to harmonize it with substantially similar provincial
legislation. That reference should be made to the Alberta and B.C. laws,
because they are "second generation" laws that have had the benefit of drawing
upon the experiences of the Quebec and the federal acts. According to the
committee, they "provide a more practical and updated reflection of privacy
protection today." 97 By enacting its own legislation, Manitoba would get a
louder voice in the next review process in addition to the benefits that such an
act would give Manitobans.
97
Ibid. at 1.

Bills Passed in the 3rd Session of the 38th Legislative Assembly
Bill Title Sponsor Type Noted'- ILB. 2 Const. Origin: Committee Public Committee Amend. RSA.S Support or Effect Substantive
No. 3 who/what is 4 participation discussions
opposition 6 areas
behind the
at committee &clause by
in house
bill stage clause debates
An Act Hon. Gary Doer
Respecting The (Premier)
Administration of
Oalhs of Office
2 The Child and Hon. Christine Amend Increased LA None No debate No No Generally RA Child
Famil;y Seroices Melnick penalties for or supported protection
Amendmen.t Act child abuse opposition
(Child Protection
offences
Penalties)
3 The Recre:atiarull Hon. Eric Amend Protect LA One Little No No Full support RA Occupier's
TrailPrope:rty Robinson landowners recreational discussion by all parties liabUity
Owners
Protection Act
from linbUitv
arising from
trails
association
(Occupiers'
recreation on
Liability Act
their property
Amended)
One asterisk denotes a noteworthy bill. Two asterisks denote an especially noteworthy bUl (controversial or a substantial policy initiative).
Housekeeping bill.
Potential constitutional issue.
S & EC denotes social and economic development; LA denotes legislative affairs; Just. denotes justice; CW denotes corrunittee of the whole; PB denotes private bills; lA
denotes intergovernmental affairs; HR denotes human resources.
Report stage amendment.
RA denotes royal assent; P denotes proclamation; SO denotes specified date; ED denotes expiry date.

Bill Title Sponsor Type Notee¥ H.B.:t Const. Origin: Committee Public Committee Amend. RS Support or Effect Substantive
No. 3 who/what is
participation discussions
opposition 6 areas
behind the
at committee &clause by
in house
bill stage clause debates
9 The Manitoba Hon. Eric Newbill Clarify and LA Manitoba No No No Generally RA Arts
Centennial Robinson establish Centennial discussion supported, management
Centre mandate for Centte minor
Corporation Act corporation Corporation opposition
10 The Pension Hon. Nancy Amend * Attempt to LA Seven private Some Yes No Generally p Pension reform
Benefirs Allan balance citizens, seven discussion supported,
Amendment Act pension groups anddebare considerable
flexibility with
debate
protection for
seniors
11 The Provindal Hon.Gon:l Amend Address IA None Some Yes No Generally p Justice of the
Court Mackintosh judiciary discussion supported, peace poweiS
Amendment Act independence and debate minor
austkes of the concerns opposition
Peace)
12 The Li4uor Hon.Scott Amend Implement IA Two busioess Minor Yes No Supporred RA Liquor
Control Smith changes owners, one discussion after regulation
Amendment Act proposed by group considerable
public review
discussion
panel
13 The Milk Prices Hon.Rosann Amend Lobbying from LA One farmers' No No No Generally RA Milk regulation
Review Wowchuk dairy farming group discussion supported,
Amendment Act industty little
discussion
14 The Electricians' Hon.Nancy Amend Increase safety IA One private Very little No No Full party SD Labour,
licence Allan after widely citizen, one discussion support employment
Amendment Act reported group and training
industty
fatality
15 The Emergency Hon. Scott Amend Devolve power S&ED None No No No Full party RA Emergency
Measures Smith to discussion support after planning
Amendment Act municipalities lengthy
debate

Bill Title Sponsor Type Noted'- H.B.z Const. Origin: Committee Public Committee Amend. RSN Support or Effect Substantive
No.
3
who/what is 4 participatio n discussions opposition areas
behind the
bill
at committee
stage
&clause by
clause
inhouse
debates
16 The Wildlife Hon. Stan Amend * Response to LA One group, Significant No No Passed on RA Animal
Amendment Act Struthers wildlife safety one private debate over division protection
and citizen clauses
enforcement
issues
17 The Regicmal Hon. Tim Sale Amend NDPhealth S&ED One patient No No Yes Generally p Health care
Health care campaign, safety group discussion supported,
Autlwrities response to some debate
Amendment and
past
Manitoba
investigations
Evidence
Amendment Act
18 Le College de Ron. Diane Amend Response to S&ED Five groups Significant Yes No Passed after RA Postsecondary
Saint- Baniface McGifford Auditor associated discussion considerable education
Incorporation General's with debate
Amendment Act report postsecondary
education
19 The Interim Hon. Greg Newbill * Connected cw None None No No Generally
Appropriation Selinger with provincial supported,
RA Finance
Act,2005 budget some
discussion
20 The Ufe Leases Hon. Greg Amend Provide LA None Significant Yes No Supported RAJP Landlord and
Amendment Act Selinger legislation in debate over with little tenant law
novel area of clauses discussion
residential
tenancy law
21 The Oil and Gas Hon.Jirn Amend * Follow upon S&ED Three groups, Very little Yes No Passed on p
Amendment and Rondeau previous three private discussion division
Conservation
Oil and Gas regulations, citizens
Production Tax
requests for
Amendment Act
better hearing
svstem

Bill Title Sponsor Type Notedl RB. 2 Const. Origin: Committee Public Committee Amend. RSA Support or Effect Substantive
No.
3 who/what is participation discussions opposition 6 areas
behind the
bill
at committee
stage
&clause by
clause
in house
debates
22 The Water Hon. Steve Newbill ** Steering S&ED ll grcups and Significant No Yes All party p
Protection Act Ashton
committee
two private debate and
support after
Conservation
(as introduced in
2nd session)
formed to
examine water
members discussion
significant
debate
conservation
issues
23 The Workplace Hon.Nancy Amend LA Two unions None No No Minor SD Employment,
Safety and Allan discussion, health
Heahh to all party
Amendment Act need!estick support
(Needles in
injuries
Medical
Workplaces)
24 The Consumer Hon. Greg Amend Bring LA One bankers' Significant Yes No All party p Trade and
Protection Selinger consumer group discussion support commerce
Amendment Act
(Cost af Credit
protection law
on disclosure of
and
amendments
Disclosure and
interest
Miscella.neous
Amendments)
charges inline
with other
provinces
25 TheWarkers Hon. Nancy Amend ** Implement HR 67 submissions Significant Yes No Significant PIRA/ Employment,
Compensation Allan changes from groups debate and statements SD labour
Amendment Act flowing from and discussion butlicde
major public individuals opposition
review of WCB
legislation
26 The Margarine Hon.Rosann Newbill Legislation S&ED None None No No All party RA Indusny
Repeal Act Wowchuk prohibiting support
margarine
colouring no
longer needed

But Tide Sponsor Type Noted'- H.B. 1 Const. Origim Committee Publlc Committee Amend. RSN Support or Effect Substantive
)
No.
who/what is .. participation discussions opposition areas
behind the at committee &dauseby inhouse
bill stage clause debates
27 The Horse
Racing
Commission
Amendment and
Horse Racing
Regulation Repeal
Act
Hon.Rosann
Wowchuk
Amend
Manitoba
Horse Racing
Com.:mission
request for
decreased
supervision of
races
S&ED None Minor
discussion
No No All party
support
p
Lotteries and
gaming
28 'I1Ie Agrologist.s Hon. Rosano Amend Not
Amendment Act Wowchuk
proceeded
with
29 'I1Ie Municipal Hon. Scott Newbill Update lA Four Significant Yes No Minor SD Elections
Councils and Smith municipal municipal and discussion, discussion,
School Boards election laws government some all patty
ElectiansAct organization amendments support
groups
30 The Manitoba Hon. Rosano Newbill Bring LA One Minor No No All party p Agriculture
Agricultural Wowchuk agriculture discussion support
Seroices
lobby group
Corporation Act
Manitoba
credit
department
together
31 The Hon. Greg Amen Provide LA One private None No No All party RA!P Property law
Omdaminium Selinger protection for citizen support
Amendment Act
condominium
purchasers and
owners
32 'I1Ie Rural Hon. Oscar Newbill * RM request to S&ED None None No No Minor
Municipality of Lathlin validate discussion,
RA Municipal law
Kelsey By -law municipal all party
No. 5/02 bylaw support
Va1idation Act
establishing
re e

Bill Title Sponsor Type Notecf H.B. 2 Const. Origin: Committee Public Committee Amend. RSN Support or Effect Substantive
No. 3 who/what is participation discussions opposition 6 areas
behind the
bill
at committee
stage
&clause by
clause
inhouse
debates
33 The Planning Act Hon.Scott Newbill ** Modernize LA Six private Intense No No Significant SD Municipal law
Smith planning citizens, five debate and opposition and planning
legislation, groups discussion voice, passed
provide for
on division
more public
input
34 The Highway Hon.Gord Amend * Increased LA One private Minor No No All party p Traffic
Traffic Mackintosh
penalties for
citizen discussion support regulation and
Amendment Act
drunk driving
criminal law
sanctions,
response to
lobbying
35 The Capital Hon. Scott Newbill Request from lA Four rural Significant Yes No General p Municipal law
Region Smith capital region municipality discussion support and planning
Parm.ership Act partnership leaders
group of
municipal
representatives
36 The CouTtS Hon.Gord Newbill Desire for LA Two Minor No No Some
Administration Mackintosh updates to municipal discussion discussion
RA/P
Improvement Act province's groups but all party
justice and
support
court system
37 The Municipal Hon.Scott Amend Municipalities LA One municipa l None No No All party p Municipal law
Assessment Smith wanted power association support
Amendment Act
to set varying
tax rates for
assessment
purposes
38 The Residential Hon. Greg Amend Desire for LA Five Some Yes No All party RA!P Landlord and
Tenancies Selinger tenant community d..iscussion, support with tenant law
Amendment Act protection and business minor some
balanced with groups, one amendments discussion
landlord
private citizen
incentives

Bill Title Sponsor Type NotecP H.B. 2 Const. Origin: Committee Public Committee Amend. RSN Support or Effect Substantive
No. l who/what is participation discussions opposition 6 areas
"
behind the at committee &clause by in house
bill stage clause debates
39 The Investment
Trnst
Vnillwlders'
Prorectic:mAct
Hon. Greg
Selinger
Amend
Address
securities law
development:
protect income
trust
beneficiary
from liability
for trustee's
actions
lA None None No No All party
support
RA
Securities law
40 The Planning Hon.Scott Amend Not
Amendment Act Smith
proceeded
with
41 The Drivers and Hon. Ron Newbill Update lA None Minor No No Some P/RA Autopac
Vehic!es Act and Lemieux legislation, discussion, discussion insurance
The Highway allow MPI to no but general
Traffic deliver amendments support
Amendment Act
licensing on
government's
behalf
42 The Health Han. Tim Sale Amend * Update S&ED None None No No Some RA
Services existing law on concerns
Health care
lnsurai1Ce drug raised, but
Amendment and prescriptions generally
Prescription
supported
DrugsOJst
Assistance
Amendment Act
43 The Regulated Hon. Tim Sale Amend Address need S&ED College of Very minor No No All parry SD Health care
Health romake a Physicians and discussion support
Professions handful of Surgeons
Statutes
amendments to
Amendment Act
health
le · lation

BiD Title Sponsor Type Notedl H.B.z Const. Origin: O::Jmmittee Public Committee Amend. RSN Support or Effect Substantive
No.
3
who/what is 4
participation discussions opposition areas
behind the at committee &clause by in bouse
bill stage clause debates
44 Hon. Greg Amend * * Budget cw None Partisan Yes No Passed on RN Finance, budget
Selinger housekeeping bickering division SD legislation
Amendment Act,
2005
unrelated to
bill
45 The Hon.Greg Newbill * Budget cw None None No No Unrelated
Selinger housekeeping discussion
RA Finance
"more
general than
specific to
bill", general
support
46 The l..oartA.ct, Hon. Greg Newbill * Budget cw None None No No Debate and
2005 Selinger housekeeping criticism but
SD Finance
bill passed
with all
party
support
47 The Legal Aid Hon.Gord Amend * Update and Just. 10 legal groups Some debate Yes No Some p
Se:roice.s Society Mackintosh provide better and private and criticism but
justice, legal aid
of Manitoba direction, citizens amendments passed with
Amen.drn.entAct resources for all party
(as introduced in Legal Aid support
2nd session)
48 The Teachers' Hon. Eric Amend *"' Follow upon HR 20 teacher and Lengthy No No Some p Finance,
Pensions Bjornson changes to education debate and debate, pensions
Amendment Act teachers' groups, private discussion passed with
pension citizens Tory
regulation
opposition
49 The Municipal Hon. Scott Amend Allow LA None Minor Yes No All party RA Municipal law
Amendment Act Smith municipalities debate support
(as introduced in
2nd session)
to set
incremental
taxarion rates

Bill Title Sponsor Type Note&- H.B. 2 Const. Origin: Committee Public Committee Amend. RS.N Support or Effect Substantive
No.
J who/what is 4 participation discussions opposition areas
behind the
bill
at committee
stage
&clause by
clause
in house
debates
50 The Statutes Hon.Gord Amend * Address minor lA None None No No General
Correction and Mackintosh typographical debate
RA/ Justice
SD
Minor
errors and
Amendments
other mistakes
Act, 2005
in previous
legislation
party
support
51 The La00uT- Hon.Jim Amend * Response to LA None Plenty of Yes No Sharp RA/P Finance,
Sponsored Rondeau Auditor discussion criticism hut securities law
Investment Funds General's and debate, passed with
Act (Various many all party
Acts Amended) amendments support
Investment
Fund
S2 The Legislative Hon.Gord Amend Implementing cw None None No No Unanimous RA Finance,
Assembly Mackintosh
changes to
support
pensions
Amendment Act
MIA pensions
(2) suggested by
commissioner's
report
200 The Personal
Information
Protection Act
MavisTaillieu Newbill Bring
Manitoba's
privacy law in
line with other
jurisdicticns
Not
proceeded
with
201 The Legislative Kevin Newbill Opposition Not
Assembly Lamoureux desire to proceeded
Amendment Act legislate with
minimum
sittings of
House
Privacy law

Bill
No.
Title Sponsor Type Notecfl H.B.z Const. Origin: Committee Public Committee Amend. RSA Support or
3
4
who/what is
participation discussions
opposition
behind the at committee &clause by inhouse
bill stage clause debates
Effect Substantive
6 areas
202 The Health Hon.Jon Amend Ensure Not Health
Sewices Gerrard Manitoba proceeded
Amendment and health care with
Health Seruicei
Insurance
Amendment Act
203 The Manitoba
Public Insurance
Corporalian
Amendment Act
Bonnie
Mitchelson
Amend
delivery
corresponds
with five
principals of
CanLuia Health
Act
Allow vehicle
accident
victims to
retainCPP
benefits in
addition to
MPI support
Not
proceeded
with
Autopac
insurance
204 The Audiologists
and Speech
Larry Maguire Newbill Updated
regulation for
Not
proceeded
Health care,
trade and
Lmguage audiologists with commerce
Pathologists Act
and speech
language
pathologists
205 The Lt;gislative
Assembly
Amendment Act
(SeDare.
Electiom)
207 The.Mediml
Amendment Act
(as introduced in
2nd session)
Glen Cummings Amend
Improve
governance
through fixed
date election
legislation
LenDerkach Amend
*
Regulate _new
and nontraditional
medical
therapies
Not
proceeded
with
Electoral reform
S&ED Five private Minor Yes No AU party RA Health care
citizens and discussion, support
three health amendment
care groups agreed toby
allmembea:s

Bill Title Sponsor Type Noted 1 H.B.Z Const. Origin: Committee Public Committee Amend. RSN Support or Effect Substantive
No.
3
who/what is participation discussions opposition areas
behind the
bill
at committee
stage
&clause by
clause
in house
debates
208 The Child and
Family Services
Amendment Act
(Grarzdpa.rent
Access)
209 The Firefighters
Compensation
Act (Workers
Compensation
Act Amended)
Leanne Rowat Amend Lobby for
grandparents'
rights
Cliff Cullen Amend lower burden
of proof for
ftrefighters who
suffer illness
potentially
related to
employment
Not
proceeded
with
Ruled out
of order
Family law
Employment,
labour law
210 The High Hon.Jon Amend * Response to Not Traffic, bicycle
Traffic Gerrard safety lobby for proceeded safety
Amendmem Act
mandatory bike with
(Bicycle Helmets)
helmet
legislation
212 The Pension Ron Schuler Amend Pension Not Finance,
Freedom Act independence, proceeded pensions
(Pension Benefits
based on with
Act Amended)
Saskatchewan
(as introduced in
law
2nd session)

Bills Passed in the 4th Session of the 38th Legislative Assembly
BiU Tide Sponsor Type Noted 1 H.B. 2 Const. Origin: Committee Public Committee Amend. RSN Support or Effect Substantive
No.
3 who/what is 4 participation discussions opposition 6
areas
behind the
bill
at committee
stage
&clause by
clause
in house
debates
An Act Hon. Gmy Doer
resftecting the (Premier)
*
Oarhs of Office
Administration of
2 ThePrirur.e Hon. Gord Amend New category Just. None Minor No No Supported p Justice
lnvestiga!Ors and Mackintosh of security debate with some
Security Guards guard, respome debate
Amendment Act
to lobby from
Retail Council
of Canada
3 The Enforcement Hon. Gord Newbill Desire to have Just. None Little No No Some p Justice
of Cant.tLlinn Mackintosh judgments discussion general
Judgments Act from other debate not
provinces
related
enforceable in
specifically
Manitoba
to bill
One asterisk denotes a noteworthy bill._ Two asterisks denote an especially noteworthy bill (controversial or a substantial policy initiative).
Housekeeping bill.
Potential constitutional issue.
S & EC denotes social and economic development; LA denotes legislative affuirs; Just. denotes justice; CW denotes commirree of the whole; PB denotes private bills;1A
denotes intergovernmental affairs; HR denotes human resoUrces; Ag. & F denotes agriculture and fOod. ·
Report stage amendment.
RA denotes royal assent; P denotes proclamation; SD denotes specified date; ED denotes expity date.

Bm Tide Sponsor Type Noted'- H.B. 2 Const. Origin: Committee Public Committee Amend. RSA.'i Support or Effect Substantive
No.
3
who/what is
4
participation discussions
opposition
6 areas
behind the
bill
at committee
stage
&.clause by
clause
in house
debates
4 The Dangerous Hon. Stan Amend Harmonization
Goods Handling Struthers
with federal
LA None Intense
debate and
Yes No Minor
debate, all
RA Traruportation
law
and
legislation in
discussions
party
Transportation area suppon
Amendment Act
5 The Dental Hon. Tim Sale Newbill Create college HR Seven health No No No All party P/RA Health care
Hygienists Act for dental care groups discussion support
hygienists in
response to
lobbying
6 The Dental Hon. Tim Sale Amend Allow HR Manitoba No No No Full party RA Health care
Associlltion introduction of Denral discussion support
Amendment Act Bill5,create Association
more accessible
dental care
7 The Architects
and Engineers
Scope of Practice
Hon.Nancy
Allan
Amend
End
construction
industry
S&EC 60 groups, Extensive
debate
about bill's
No
No
ultimately all
Dispute dispure by members of merits but party
Settlement Act defining roles each no support
(Variaus Acts for engineers profession amendments
Amended)
and architects
RAJP Professional
regulation
8 The Official Hon. Scott Amend Response to just. None None No No RA Intergovern-
Time Smith
North
mental affairs
Amendment Act
American
statement
movement to
from
broader
daylight
savings time
party
support
9 The Farm Hon.Rosann Amend Uabiliry Just. None None No No Some debate RA Agriculture
Practices Wowchuk ex mption fur but generally

Bill Title Sponsor Type Noted'- H.B.2 Const. Origin: Committee Public Committee Amend. RS.AS Support or Effect Substantive
No.
3 who/what is participation discussions opposition 6 areas
behind the
bill
at committee
stage
&clause by
clause
inhouse
debates
10 The Convention
Centre
OJrporation
Amendment Act
Hon. Scott
Smith
Amend
Request from
Convention
Centre
Corporation
for more public
representation
on board, less
city councillors
Just.
Convention
Centre
Corporation
chair
None No No All party
support
RA Organizational
governance
11 TheWmter Hon. Dave Newbill "'* Government S&ED Seven groups Intense Yes No Heavy p Natural
Hearing Qlsr Chornlak response to and private debate, debate, resource
ControlAa rising natural citizens significant passed with regulation,
gas prices and amendments Tory and Crown
lobbying to Liberal corporations
regulate them
opposition
12 The. Highways Hon.Ron Amend * Allow S&ED One private Lengthy No No Some RA Traffic
and Lemieux department to citizen and debate and debate, regulation
Transportation cleanup one several passed on
Amend.m.ent Act. highway right- agriculture amendments division
of-ways with
producers'
tougher laws
group
13 The Hon.Steve Amend Increase scope just. Association of Some No No All party RA Conservation
Conservation Ashton and power of Manitoba discussion, support
Districts Conservation Municipalities no
Amendment Act Districts amendments
14 The Water Rights Hon. Steve Amend * Stronger S&ED Five groups, Significant No No Passed on
Amendment Act Ashton enforcement three private debate, no division
RA Conservation
measures for citizens amendments
water
protection
15 TheE Hon. Scott Amend Revision of LA Two Some debate No No Minimal RA Intergovem-
Meas aes Smith emergency municipal debate, all mental affairs
Amendmenl Act guidelines, groups, one party
increased private citizen support
power fur
municipalities

Bm Tide Sponsor Type Noted 1 H.B.z Const. Origin: Committee Public Committee Amend. RSN Support or Effect Substantive
No.
areas
3 who/what is 4 participation discussions opposition
behind the at committee &clause by in house
hffi stage clause debates
16 The Corporaricns Hon. Greg Amend Modernization Just. Two private Minor No No All party RAIP Corporate
Amendment Act Selinger co cotporate citizeru, one discussion support governance
governance law
commerce
to reflect
group
current
practices
17 The Securities Hon.Greg Amend Provincial IA None Several Yes No All party p Securities law
Amendment Act Selinger goverrunent:s' amendments support
move toward
generally
uniform
agreed to
securities
regulation
18 The HiGhway Hon. Gord Amend Response to Just. None General No No All parry p Justice
Traffic Mackintosh lobby fur discussion support
Amendment Act increased but no
(Counte mea- penalties for amendments
sures Against
impaired
Impaired Dri'Vel'S
driving
aru10iher
offences
Offenders)
19 The Agri-Food Hon. Rosann Newbill * Establish Ag.&F Two Lengthy No No Passed on RA Agriculture
aru1Rural Wowchuk agriculture agricultural debate but division
Development think-tank to groups no
Council Act provide advice amendments
to Minister
20 The Family Farm Hon. Rosann Amend * Ensure Ag.&F None Some No No Passed with RA Agriculture
Protectian Wowchuk conformity debate, no some
Amendment and with Civil amendments opposition
Fann 1.ands
Ownership
Service Act
Amendment Act

Bill Title Sponsor Type Noted 1 H.B.l Const. Origin: Committee Public Committee Amend. RSN Support or Effect Substantive
No.
3
who/what is
behind the
bill
participation
at committee
stage
discussions
&clause by
clause
opposition
inhouse
debates
6 areas
21 The Public Hon.Jim Newbill Desire for S&ED One private Heavy Yes No Allparty p
Health Act Rondeau legislated citizen debate, support
Health care
recognition of
some
public health
amendments
care, mandate
to that effect
22 The Elections Hon. Gary Doer Amend
* Implement 74 LA Two private Intense Yes No All party RAJ Electoral reform
Reform Act recommend- citizens debate, support SD/P
ationsfrom
many
Chief Electoral
amendments
Officer's repOrt
23 Hon. Gord Amend Response to LA None General No No All parry RA Public safety,
and Mackintosh changes agreement support justice
Neighbourhoods
requested by
Amendment Act
police, public
safety officials
24 TheOmsumer Hon.Greg Amend Extends S&ED One consumer Several Yes No All party p
Protection Selinger control cf costs association amendments support
Finance
Amendment Act associated with group generally
(Government cashing agreed to
Cheque Cashing
government
Fees)
cheques to
municipalities
and school
boards
25 The Consumer Hon.Greg Amend * S&ED Two groups, To be re- Yes
Protection Selinger three private instated in
Amendment Acr citizens 5"' sess., 38rL
(Payday Loans)
Leg.
26 - The Interim Hon. Greg Newbill * Budget cw None None No No All parry RA Finance
Appropriation Selinger housekeeping support
Act, 2006

310 Underneath the Golden Boy
Bill Title Sponsor Type Note& ILB.z Canst. Origin: Committ ee Public Committee Amend. RSN Support or Effect Substantive
No. 3 who/what is 4 participation discussions opposition 6 areas
behind the
bill
at committee
stage
&clause by
clause
in house
debates
27 The Tobacco Hon. Tim Sale Newbill * Join other S&ED None Some No No Lengthy p Health care,
Damages and provinces with discussion, unrelated justice
Health. Care legislation that no discussion,
Costs Recooery attempts to sue amendments with
Act
tobacco
companies for
support
health care
costs
28 The Manitoba Hon. Eric Amend Answer to To be re- Corporate
Museum Robinson museum's instated in governance
Amendment Act request for 5th sess.,
governance 38th Leg.
reform
29 The Degree Hon. Diane Newbill Desire co S&ED None To be re- No SD Education
Gran!ing Act McGifford resttict post, instated in
secondary
5"' sess., 38"'
institutions
Leg.
from granting
degrees unJess
specifically
legislated to do
so
30 The Fires Hon. Nancy Newbill Changes to fire Ag.&F Two groups Minor No No All parry p Conservation
Prevention and Allan legislation, debate support
Emergency
more power to
Response Act
Office of the
Fire
Commissioner
31 The Animal Hon. Rosann Amend * Changes Ag.&F Six agriculture Some debate No No All party
Diseases Wowchuk related to groups but no support
RA Agriculture
Amendment Act animal disease amendments
outbreak

BiD Title Sponsor Type Noted H.B. 2 Const. Origin: Committee Public Committee Amend. RSA.5 Support or Effect Substantive
No.
3 who/what is 4 participation discussions opposition 6 areas
behind the at committee &clause by inhouse
biD stage clause debates
32 The Real Hon.Oscar Amend Allow creation S&ED Two groups, To her& No No Property law
Property Lathlin of easemenrs as one private instated in
Amendment Act required by citizen sm sess., 38th
lands claims
Leg.
process
33 The Northern Hon.Oscar Amend Complete S&ED None To her& Yes Property law
Affair.; Act Lathlin revision of 30- instated in
year-old
sm sess., 38m
legislation
Leg.
34 The Public Hon.Greg Newbill * Follows S&ED One private Tober& Yes Organizational
ln!erest Selinger accountability citizen instated in governance
Disclosure movement by sm sess., 38m
(Whisrleblower strengthening Leg.
Proteakm) Act
protection for
whistleblowers
35 The Public Hon. Peter Amend FoUowupon S&ED Manitoba Minor No No Passed with RA Finance,
Schools Finance Bjornson NDP promises Teachers' discussion. some education
Board to set out long union no opposition
Amendment cmd term planning amendments
The Public
and capital
Schools
funding for
Amendment Act
schoo1s
36 The Youth Drug Hon. Theresa Newbill * Provide help S&ED Private citizen, Some No No All party SD Justice
Srabilizaticm. Oswald for parents of two groups discussion supporr
(Support for minors with but no
Parents) Act "severe and amendments
37 The labour- Hon.Jim Amend Response to lA None Heavy No No All party p Finance,
Sponsored Rondeau 2005 Auditor debate but support securities law
Investment Frmds General's no
Act,2006 report on amendments
(Various Acts
Amended)
Crocus
Investment
Fund collapse

Bill Tide Sponsor Type Notecf H.B.z Const. Origin: Committee Public Committee Amend. RSN Support or Effect SUbstantive
No.
3
who/what is
participation discussions
opposition areas
behind the
at committee &clause by
in house
bill stage clause debates
38 The Housing aru1 Hon. Christine Amend Establish a new To be re-
Renewal Melnick fund for instated in
Corporafifm. housing .5"' sess.,
Amendment Act renewal 38"' Leg.
(Fund far
Housing
Revitalization)
39 The Coun of Hon.Gord Amend Desire to To be re- Justice
Queen's Bench Mackintosh increase access instated in
Sm11U Claims to justice by Slh sess.,
Practices increasing 38th Leg.
Amendment Act
court's claim
limit to
$1000)
40 The Medical Hon.Tim Sale Amend
*
Mostly To be re-
Amendment Act housekeeping instated in
Health care
regarding 5"' sess.,
health care 38oh Leg.
legislation
41 Hon. Tim Sale Newbill * Response to S&ED Four To be repharmacist
instated in
The
Pharma.ceutical industry lobby,
Health care
Act increased
powers for
groups _5th sess., 38th
Leg.
Manitoba
Pharmacists'
Association
42 The. Budget Hon. Greg Amend Budget cw None None No No All party RAI Finance
lmplemenralion Selinger housekeeping support SDIP
And Tax Suuutes
Amendment Act,
2005

Bill Title Sponsor Type Noted H.B. 2 Const. Origin: Committee Public Committee Amend. RSA'i Support or Effect Substantive
No.
3 who/what is participation discussions opposition areas
behind the
bill
at committee
stage
&clause by
clause
inhouse
debates
45 The Loan Act, Hon. Greg Newbill * Budget cw None None No No All party SD Finance
2():)6 Selinger housekeeping support
zoo The Manitoba Bonnie Amend Desire to allow Negatived Manitoba
Public Insurance Mitchelson vehicle on znd Public
Corporation accident reading Insurance
Amendment Act
victims who
receiveMPI
settlements to
escapeCPP
ciawhack
201 The Child and Leanne Rowat Amend Lobby for Not Family law
Family Services grandparents' proceeded
Amendment Act rights with
(Grandparent
Acces5)
202 The Good Hon.Jon Newbill * Desirero Not Torr law
Samaritan Act Gerrard encourage proceeded
rescuers; with
provide liability
shield
203 The Health Hon.Jon Amend Ensure Not Health care
Services Gerrard Manitoba proceeded
Amendment and health care with Health
Services
delivery
Insurance
corresponds
Amendment Act
with five
principals of
Canada Health
Act
204 The Good Bonnie Ne bill * Desire to Not
Samarita'n Korreniowski encourage proceeded
Tort law
Protection Act rescuers; with
provide li.abilicy
shield

Bill
No.
Title Sponsor Type NotecP- H.B.Z Const. Origin:
J who/what is
behind the
bill
Committee Public
participation
at committee
stage
Committee
discussions
&clause by
clause
Amend.
RSN Support or
opposition
in house
debates
Effect Substantive
areas
205 The Electiaru Denis Rocan Amend Electoral Not Electoral law
Amendment Act
reform to proceeded
(Number of
increase voter with
Varers in Polling
participation
Subdillisions)
206 The liquor Kevin Amend
Atcemptto Not
Liquor control
Control Lamoureux
preventFAS proceeded
Amendment Act
through with
(Feral Alcohol
awareness
Spectrnm
education;
Disorder
warnings oo.
Preventimt)
alcohol
products
207 The Personal MavisTaillieu Newbill Attempt to Not
Privacy law
Information
Protection and
bring
Manitoba's
ldenrir.y Theft
privacy law in
Prevention Act
line with other
Canadian
jurisdictions
208 The Highway Leanne Rowat Amend Response to Not
Traffic law
Traffic
injuries; keep proceeded
Amendment Act people from with
riding on
outside of
vehicles
209 The Audiologists
and Speech
Larry Maguire NewhUl Updated
regulation for
Nor
proceeded
Health, trade
and commerce
Language audiologists with
Pathologists Act
and speech
language
pathologists

Bill
No.
Title Sponsor Type Notecf H.B.z Const. Origin:
3
who/what is
behind the
Committee Public
participation
at committee
Committee
discussions
& clause by
Amend.
RSN Support or
opposition
inhouse
bill stage clause debates
Effect Substantive
areas
210 The Workplace Hon.Jon Amend
Attempt to Not
Safet:j and Gerrard
reduce proceeded
Health workplace- with
Al1U.'l'ILlment Act
related
(Harassment in
harassment
the warkplac:e)
Employment
and labour law
211 The Truth About Hon. Stuart Newbill Crocus Not Securities law,
Crocus Act Murray Investment proceeded inquiry law
Fund collapse; with
lack of
satisfaction
with
government
response
212 The Historic
Trans-Canada
Gerald
Hawranik
Newbill
Desire to
recognize
To be reinstated
in
Culture,
heritage and
Highway Act Highway 44 as Soh sess., tourism
historically 38"' Leg.
significant,
promote
tourism
213 The Milk Prices
Review
Kevin
Lamoureux
Amend
Address
expensive milk
Not
proceeded
Amendment Act prices in with
remote areas
by setting
regulated price
214 The Enviranment Hon.Jon
Amendment Act Gerrard
(Methampheramine)
Amend
Cutdown on Not
perceived proceeded
growth in meth with
offences and
production
Agriculture
Justice,
conservation

316 Underneath the Golden Boy
Bill Tide Sponsor Type Noted 1 H.B. 2 Const. Origin: Committee Public Committee Amend. RS,AS Support or Effect Substantive
No.
3 who/what is 4 participation discussions opposition areas
behind the at committee &clause by in house
bill stage clause debates
ZI5 The Child and Kevin Amend * Concerns Not
Family Services Lamoureux about grow op proceeded
justice
Amendment Act and meth labs with
(Drug-
Endangered
and their
effects on
Children)
children
300 The Association Doug Newbill Lobbying from S&ED One private Minor No No All party RA MLA privileges
of Fonner Martindale
other former
citizen discussion support
Manitoba M1.As
MIA
Act
associations

AppendixC
Bills Passed in the 5th Session of the 38th Legislative Assembly
Bill
No.
Title! Sponsor Type Notedl. ILB. 3 Const. Origin:
4 who/what is
behind the
bill
Committee Public Committee Amend. RSA!i Support or Effect Substantive
5 participation discussions opposition 7 areas
at committee & clause by
in house
stage clause debates
An Act Hon. Gary Doer
respecting the (Premier)
Administration of
Oaths of Office
2 The. Employment Han. Nancy
Standards Code Allan
Amendment Act
3 The. Hetilthy
Child Manitoba
Act
Hon. Kerri
Irvin-Ross
Amend
Newbill
Implement
changes
proposed by
Labour
Management
Review
Committee
Promote chiJd
welfare
through
prevention and
early
intervention
strategy
S&ED
Not
proceeded
with
Two business
and labour
groups
Significant
debate but
no
amendments
No No Some p Employment
discussion, and labour
all party
support
p
Family law
Asterisk denotes bill was re-introduced from a previous session.
One asterisk denotes a noteworthy bill. Two asterisks denote an especially noteworthy bill (controversial or a substantial policy initiative).
Housekeeping bill.
Potential constitutional issue.
S & EC denotes social and economic development; lA denotes legislative af!IDrs; Just. denotes justice; CW denotes committee of the whole; PB denctes private biDs; IA
denotes intergovernmental affairs; HR denores human resources.
Report stage amendment.
RA denotes royal assent; P denotes prodamation; SD denotes specified date; ED denotes expiry date.

318 Underneath the Golden Boy
Bill
No.
Title 1 Sponsor Type NotecF ILB. 3 Const. Origin: Committee PubUc Committee Amend. RSN Support or
.. who/what is s
participation discussions
opposition
behind the at committee &clause by in house
bill stage clause debates
Effect
7
Substantive
areas
4 The Consum.er Hon.Gteg Amend Response to S&ED 1bree groups, Minor No No Allparry p Commerce and
Protection Selinger public desire one private discussion support trade
Amendment Act for elimination citizen
of expiry dares
Cards)
on prepaid
purchase cards
5 The Personal Hon. Greg Amend Response to S&ED One business No No Concerns p Privacy law
Investigarioru Selinger
privacy law
aired, but all
Amendment Act
lobby, allows
no
party
(Identity consumers to amendments support
Protection)
put security
warnings on
credit cards
6 The Registered Hon.Greg Newbill Desire to keep S&ED One business Short debate No No All party p Finance
Retirement Selinger funds exempt group support
Sailings
from creditors'
Protection Act
claims
7 The Real Hon.Jirn Amend Movement to Not Trade and
Property Rondeau encourage proceeded commerce
Amendment Act
development of with
(Wind Turbines)
wind turbines
8 The Public Hon. Dave Amend Response to Not Governance
Accounts Cbomiak calls for proceeded
Committee increased with
. Meeting Dares accountability
Act (legislative
Assembly Act
Amended)
9 The Grandparent Hon. Gord Amend * Response to S&ED Grandparent Minor No No All party RA Family law
Access and Orher Mackintosh lobby for lobby group debate support
Amendments Act
increased
(Child and
Family Services

Bill
No.
Tidel Sponsor Type Note£11 RB. 1 Const. Origin: Committee Public Committee Amend. RSA 6 Support or
who/what is s participation discussions
opposition
"' behind the
at committee &clause by
inhouse
bill stage clause debates
Effect Substantive
areas
10 The Adult
literacy Act
Hon. Diane
McGifford
Newbill
Rollout of
province's
adult literacy
strategy
Not
proceeded
with
Education
11 The Insurance Hon. Greg Amend Uniformity Not Trade and
Amendment Act Selinger with insurance proceeded commerce
law in other with
provinces
12 The Public Hon. Peter Amend Symbolic Not Education
Schools
Amendment Act
Bjornson
support for
regional
proceeded
with
(Regiooa[
vocational
Vocational
schools
Schools)
13 The: Securities Hon.Greg Amend Follow upon Not Securitie& law
Amendment Act Selinger movement to proceeded
bring with
Manitoba's
securities law
in line with
other
jurisdiction&
14 The Fami/:i
Maintenance
Amendment and
fmerjurisdictional
Support Orders
Amendment Act
Hon. Dave
Chomiak
Amend
Strengthen law Not
and sanctions proceeded
to help collect with
child support
payments
Family law

Bill
No.
Tide 1 Sponsor Type Note!¥ H.B. 3 Const. Origin: Committee Public Committee Amend. RSA 6 Support or
" who/what is s participation discussions
opposition
behind the
at committee &clause by
inhouse
bill stage clause debates
Effect Substantive
areas
15 The Manitoba Hoo. Amend Demand for Not Crown
Hydro Selinger reliability proceeded corporation
Amendment l11ld Hon.Jim standards for with control
Public Utilities Rondeau electricity
Board
Amendment Act
(Electricity
Reliability)
16 The Children's Han. Gord Newbill Response to Not Family law,
Advocate's Mackintosh past proceeded fatalities
Enlwru:ed investigations with legislation
Mandate Act
of child deaths
(Various Acts
Amended)
17 The Emplt.ryment Hon.Nancy Amend
Implement Nor
Standards Code Allan
LMRC proceeded
Amendment Act recommend- with
(leave fur
ations
Reservists)
Employment
and labour law
18 TheOrgcmic Hon. Ro.sann Newbill Mirror federal Not
AgricultuTal Wowchuk organic proceeded
Products Act products with commerce
regulations and
standards
19 The GCMmment Hon. Ron Amend Update Not Governance
Purc:lJase.s Lemieux government proceeded
Amendment Act purchasing with
(Responsible
rules and
Manufacturing)
regulations
20 The Hon.Jim Amend Government Not Trade and
Rondeau promotion of proceeded commerce
biofuels with
industty

Bill Tide 1 Sponsor Type Note" H.B.l Canst. Origin: Committee Public Committee Amend. RSA 6 Support or Effect Substantive
No.
4 who/what is s participation discussions opposition areas
behind the
bill
at committee
stage
&clause by
clause
inhouse
debates
21 TheSilltu.tory Hon.Nancy Newbill Response to Not Employment
Holidays Act Allan lobbying, proceeded and labour
(Variaus Acts popular with
Amended)
opinion srarted
by radio station
22 The Firefighters, Hon.Ron Newbill Create Nor Employment
Peace Officers Lemieux foundations as proceeded and labour
and Workers a tribute to with
Memorial
publlc officers
Formdations Act
and workers
who lost lives
on job
23 The Forest Hon.Stan Newbill Grants powers Not Conservation
Health Protection Struthers
to government proceeded
Act conservation with
officials to
respond to and
fight tree
infestation
24 The Fair Hon.Nancy Newbill Desire for open Not
Registration Allan registration proceeded
Pracdce.s in process for with
Regulawl
regulated
ProfessiJ:ms Act
professions
25 The Consumer Hon. Greg Amend * Response to S&ED Two groups, Heavy Yes No Minor P!RA Fmance, rrade
Protection Selinger lobby, news three private debate, concerns but and commerce
Amendment Act smries about citizens some all party
(Payday Icans)* for increased amendments support
• amendment(s)
regulation of
adopted at
payday loan
Committee Stage
providers
28 The Manitoba Han. Eric Amend Answerm LA Manimha None No No All party p Corporate
Museum Robinson museum's museum board support, governance
Amendment Act request for member some
* governance discussion
reform

Bill Title 1 Sponsor Type Note.f H.B. 3 Corut. Origin: Committee Public Committee Amend. RSA 6 Support or Effect Substantive
No. 4 who/what is s participation discussioru
opposition areas
behind the
at committee &clause by
inhouse
bill
stage clause
debates
29 The Degree Hon. Diane Newbill Desire to S&ED None Some No No All party RAt Education
Granting Act* McGifford restrict post discussinn, support, SD
secondary no minor
institutions amendments commentary
from granting
degrees unless
specifically
legislated to do
so
30 The Planning Hon. Steve Amend Response to Nor Agriculture,
Amendment Act Ashton lobby to reduce proceeded trade and
(Deemed Single
presence of with
commerce
Operations)
large livestock
operations
32 The Real Hon. Oscar Amend Allow creation S&ED Two groups, None No No Not Property law
Prope:rr:y Lathlin of easements as one private proceeded
Amendment Act required by citizen with
lands claims
process
33 The Northern Hon. Oscar Newl.ilt Complete S&ED None Some Yes No All party p Municipal law
Affai:rsAct* Lathlin revision of 30- debate, support
• amendment(s) year-old amendments
adopted at
legislation
O:nmnittee Stage
34 The Public Hon. Greg Newbill * Follows S&ED One private Lengthy Yes No General P/SD Securities law,
Interest Selinger accountability citizen debate and concerns finaru:e
Disclosure movement by some aired but all
(Whisr.!eblower strengthening amendments party
Protection) Act* protection for support
• amendrnent(s)
whisdeblowers
adopted at
Committee Stage

Bill Tide'- Sponsor Type Noteif H.B.J Canst. Origin: Committee Public Committee Amend. RSA 6 Support or Effect Substantive
No.
4 who/what is s participation discussions opposition areas
behind the
bill
at committee
stage
&clause by
clause
inhouse
debates
38 The Housing and Hon.Gord Amend Establish a new S&ED None Minor No No Not Social welfare
Renewal Mackintosh fund for discussion proceeded
Corporation housing with, passage
Amendment Act renewal delayed due
(Fund far
to lack of
Housing
time
Revitalization) *
39 The Court of Hon. Dave Amend Desire to LA None Minor No No All party p
Queen's Bench Chomiak increase access discussion support with
Justice
Small Claims to justice by minor
Practices increasing comments
Amendment Act
coUit's claim
* limit to
$10 coo
40 The Medical Hon. Theresa Amend Some changes Not Health care
Amendment Act Oswald related to proceeded
* College of with
Physicians and
Surgeons,
housekeeping
regarding
health care
legislation
41 The Hon.Theresa Amend * Response to S&ED Four Significant Yes Yes All party p
Pha'ITtllJCe'Utical Oswald industry lobby, pharmacist debate, support,
Health care
Act* increased groups many recognition
• am.erzdment(s) powers and amendments of bill as
adopted at accountability compromise
Committee Srage
for Manitoba
• amendment(s)
Pharmacists'
adopted at Report
Association
Stage

Bill Tidel Sponsor Type Note

Bill Tide 1 Sponsor Type Noted - H.B.l Const. Origin: Committee Public Committee Amend. RSA 6 Support or Effect Substantive
No.
4 who/what is s participation discussions opposition areas
behind the at committee &clause by inhouse
bill stage clause debares
204 The Workplace
Safety and
Hon.Jon
Gerrnrd
Amend
Attempt to
reduce
Not
proceeded
Health workplace- with
Amendment Act
related
(Harassmeru: in
harassment
the Warkplace)
Employment
and labour law
205 The Milk Prices Kevin Amend Address Not Agriculture
Reuiew Lamoureux
expensive milk proceeded
AmendmentAct
prices in with
remote areas
by setting
regulated price
206 The Phosphmus- Hon.Jon Newbill
Reaction to Not
Conservation
Free Dishwashing Gerrard
increasing proceeded
Det:e Xent Ac
pollution of
Lake Winnipeg
with
207 The Teachers'
Pensions
Heather
Stefanson
Amend
Response to
lobbying from
Not
proceeded
Amendment Act former with
teachers,
proposes
TRAF
governance
reform
208 The Highway Leanne Rowat Amend Response to Not
Traffic;
injuries; keep proceeded
Amendment Act people from with
riding on
outside of
vehicles
Finance
Traffic law

326 Underneath the Golden Boy
Bill
No.
Tide 1 Sponsor Type Notecf H.B. 3 Const. Origin:
..
who/what is
behind the
bill
Committee Public
s participation
at committee
stage
Committee
discussions
&clause by
clause
Amend.
RSH Support or
opposition
inhouse
debates
Effect Substantive
areas
209 The Mandatory Kelvin Goer tzen New bill * Desire to Not
Testing of Bodily
protect people proceeded
Substances Act who are put at with
risk of
communicable
disease because
of occupation
or criminality
Health care,
justice
210 The Personal Hon.Jon Amerul Increase Not Health care,
Healrh Geuard patient access proceeded privacy law
Information to own with
Amendment Act
personal health
infotm.l'ltion
211 The Manitoba Hon.Jon Amend Desire for Not Crown
Hydro Gerrard
accountability; proceeded
corporation
Amendment Act
force aU with
potential
Hydro 1nard
appointees to
be interviewed
by committee
212 TheHisroric
Trans .Canada
Culture,
heritage and
Gerald
Hawranik
Newbill
Desire to
recognize
Not
proceeded
Highway Act Highway 44 as with tourism
historically
significant,
promote
tourism

Dlll !ttle' Sponsor Type Note& H.B! Const. Origin: Committee Public Committee Amend. RSN Support or Effect Substantive
No.
4 who/what is participation discussions opposition areas
behind the at committee &clause by inhouse
bill stage clause debates
213 The Labour Ron Schuler Amend Protect Not
Employment
Rekuion.s
minorities by proceeded
and labour law
Amendment Act
requiring union with
(Information in
to provide
Employee's
Language)
recruionent
information in
language
understood by
employee
214 The Good Bonnie Newbill Desire to LA One private Minor No No All party RA Tort law
Samaritan Koneniowski encourage citizen discussion, support
Protection Act
rescuers;
provide liability
general
support of
shield that
law
includes those
who give
advice
215 The Liquor Myrna Driedger Amend
Prevent past LA None None No No All party p Liquor law
Control
Amendment Act
incidents
where people
support, no
discussion
(Helpingw were drugged from
Prevent Date through their government
Rape) drinks in bar, MLAs
social settings
216 The Municipal Jack Reimer Amend Desire to Not Municipal law
Assessment exempt proceeded
Amendment Act Winnipeg with
Humane
Society from
municipal
taxes

Bill Title' Sponsor Type Notetf H.B.l Const. Origin: Committee Public Committee Amend. RSA 6 Support or Effect Substantive
No.
4 who/what is participation discussions opposition areas
behind the at committee &clause by in house
bill stage clause debates
217 The Apology Act Hon.Jon Newbill Follow other Not Justice
Gerrard
jurisdictions by proceeded
prohibiting use with
of apologies to
ground legal
liability
218 The Elections Kevin Amend Increased Not Elecrorallaw
Amendment and Lamoureux accountability proceeded
Elections by making with
Finances
investigations
Amendment Act
under election
legislation
public
219 The Legislative Glen Cummings Amend Desire to Not Electoral law
Assembly fOllow other proceeded
Amendment Act jurisdictions; with
(Set Date
Elections)
create
increased
accountability