MR. SPEAKER: The hon. the Opposition House Leader.

MR. KELVIN PARSONS: Thank you, Mr. Speaker.

I appreciate an opportunity to present this particular motion for discussion and debate and vote here in the House today. Some might wonder, of course, what prompted the particular resolution. What it calls for, basically, is the establishment of an all-party committee of the House of Assembly which would look, in particular, at two pieces of legislation that we have in this Province; namely, the Fatal Accidents Act and the Survival of Actions Act that impact the lives of people in this Province. In particular, in how they recover for damages that they might incur as a result of things that happen to them.

Although this has been kicking around for many, many years, the issue of just how anachronistic our laws are, we have had a couple of examples recently where it became very evident to all those involved, the families, the lawyers, the government, everybody involved, that this was a pretty old, archaic system that we are currently living under. I refer, of course, to the Cameron Inquiry, which brought this to the forefront, as well as the Cougar Inquiry, which brought it to the forefront.

Without trying to get too legalistic here, under the current law, we are extremely limited in this Province as to what you can recover for damages. Because of the interaction between the Fatal Accidents Act and the Survival of Actions Act, you can basically only recover for what they call pecuniary expenses, out-of-pocket expenses. You are limited as to what other things – for example, grief. There is no recovery for grief. There is no recovery - I think in Newfoundland there is a limit as to what you can get for funeral expenses, for example even. The loss of a partner, none of those things are recoverable under the current law in Newfoundland.

We are the only Province in Canada that lives in this situation. I will get in later to what the other jurisdictions permit, but for whatever reason, successive governments in this Province have not dealt with it. We live with the same law here. For example, it is so old, this law, that even slavery was permitted in Britain. That is how old this law is and we have done nothing in this Province to address it for that period of time. That is not placing blame on anybody, but the bottom line is the time has come where we need to look at it and hopefully make some changes.

You will notice the resolution is framed in such a way that it is not even saying what the ultimate shape of the law should be. It is not suggesting that we should do what Alberta has done or we should do what Manitoba has done or Ontario has done. What it is suggesting is that we should have an all-party committee to decide what should be done. I think it is pretty obvious to everybody in the Province, if you have any understanding of the issue, that what we live with is currently not modern, not acceptable and needs to be reviewed. There is no question about that at all.

To get back to the Cameron Inquiry again and how this came to light for example. We had, as everybody knows, over 1,000 individuals in this Province who were impacted because of what happened in the ER-PR debacle, and that is the only way to describe it. There was no question that once it came to light, that it had happened, improper testing results and so on; once that came to light the government came to the forefront. The Premier, for example, made no bones about it. They set up a judicial inquiry into it; that was in May of 2007. There was a class action started. There was a lawyer in town, Mr. Crosbie, who took the class action on behalf of all the persons involved. It went to the Supreme Court, and as everyone knows it was recently resolved. It was resolved. My understanding is factually that the only thing the insurance company had to pay as a result of that - and that is because of the way that our Fatal Accidents Act and our Survival of Actions Act are currently structured. The recovery from the insurance company themselves was limited to $3 million.

Now fortunately, somebody, ultimately the taxpayers of this Province, stepped up and increased that from $3 million up to $17.5 million. That happened, of course - the government did not come right out and say that we paid the money, but ultimately we know that it went from $3 million paid by the insurance company to $17.5 million. I think the press release said that the money would come from Eastern Health. Well, that obviously - Eastern Health is funded by government, and government of course is funded by the taxpayers. So whichever way you want to put it in a press release and cover it, the bottom line was government came and put their money into the pot which allowed these people who were impacted some recovery. It still did not give them what they should have gotten if our laws had been modernized like any other place in this country. They were still limited, and it is only because the money was put in that they managed to recover what they did.

This is not being put forward simply by the Opposition because we have a personal interest in this. In fact, anyone who followed the Cameron Inquiry and followed that particular settlement - even the Premier, the Premier made no bones about it, in a CBC interview out in front of the House of Assembly on one occasion said: look, liability is not an issue here. Once we got in and got past the liability issue, it became a compensation issue. It became readily noticeable and obvious to the lawyers involved and everybody else, that regardless of how compassionate you felt, regardless of the damage that was done, regardless of the grief that was caused, regardless of how much you might want to help every family, child, spouse that was impacted because of that, you are limited by our laws as to what you could recover. No matter what you wanted to do.

So that is where this came from. Of course, they received the settlement and they worked it out and everybody involved. They had different categorizations, as I understand it, and they agreed amongst themselves that different people within the class received certain amounts depending upon the severity. Of course, there was a time element involved. They tried to do it quickly because they knew people were dying. We were not dealing here with a case where we could wait for these people to recover. There had been 100, and I believe the figure was 127 people as of July this year who had died, and more as time goes on. So that is why there was urgency and a need to get this resolved.

In the future, that is the whole purpose of the resolution. We do not need to be reactive. We do not need to have governments find themselves in a situation of something happens and government is put under the fire, government is put under the gun. There is public pressure brought to bear for government to react and do something. We would not have to do that if we had the proper laws in place. For example, we are going to see the same thing in the Cougar air crash that occurred here, because again, the same limitations under our law apply and the families who were impacted by that tragedy.

Now, I just referenced the two different tragedies that we have had, the Cameron tragedy and the Cougar tragedy, but, of course, it applies to every man, woman and child in this Province. It does not have to be a multiple tragic incident that brings this about. The same thing happens if it is between a husband and a wife and a family in a car accident or whatever. You are limited as to what you can recover once the person has died. That is where the law is inappropriate.

In fact, Mr. Crosbie, not only did he act as a legal counsel in the case but he became so enamoured of it, so engrossed in it, I mean he did an open letter to the media, and in it he refers specifically to the Premier. The Premier is a lawyer. The Premier did personal injury actions. He did a lot of big cases. He understands where we are coming from here. The Minister of Health did personal injury actions. He knows where we are coming from. This is not a case of do it for the lawyers. This is a case about doing it for the people who are impacted because of the current anachronistic state that our law is in when it comes to fatal actions and survival actions. The Law Society has grappled with it for years. Nobody has actually done anything but the place, I would submit, where it should be considered is here, and it should be considered for all those reasons, as I say. We, as government, should not be seen as reactionary to these critical situations, and the people in our public ought to be able to recover whatever they can for compensation.

Just to look at the state of affairs in other jurisdictions in this country, for example. In Alberta, if you were to sue in Alberta, the people who could recover are the children, the grandchildren, the stepchildren, the siblings, the parents, the step-parents, grandparents, cohabitants and spouses. You can recover in Alberta for grief and loss, care and companionship. You cannot do that in Newfoundland. If you lost your spouse in Newfoundland and Labrador because of somebody’s negligence and the person died, you cannot recover. You can get more for it if you are maimed for life than you can get if you lose somebody. That is the bottom line. As harsh as that might seem, if you maimed somebody for life you can get more than if they happened to take their life. There is something wrong with that, and that is the current state of our legislation.

Manitoba, for example, has the same kind of recovery. New Brunswick; not only does New Brunswick allow you to recover for your out-of-pocket expenses, the funeral expenses and so on, they allow you to cover for grief and loss of companionship for the parents. New Brunswick also – they are probably one of the most far-reaching pieces of legislation – allow you to recover for punitive or exemplary damages where appropriate, and the monies would go to the estate of the person who was deceased. We only allow for a certain figure that you can identify, out-of-pocket dollar figure. New Brunswick has gone far, far down the road. They say: Look, if there was a punitive element to the person’s death, you can award damages for that as well, payable to the estate.

In the Northwest Territories – somewhat like ours, have not caught up yet. Seems, in fact, to have patterned their legislation off of us, but they do allow damages proportional to the injury resulting from the death - a bit broader than us and no question about medical and funeral expenses.

In Nova Scotia, they allow for the out-of-pocket stuff, as well as expenses incurred for the care of the deceased, an amount for the loss of guidance, care and companionship, reasonably to be expected. In Ontario, we also allow compensation for loss of care, guidance and companionship, reasonably to be expected had the death or injury not occurred. In Prince Edward Island, we allow damages for the loss of care, guidance and companionship, reasonably to be expected. In Saskatchewan, medical expenses, funeral expenses, grief counselling, loss of earnings and any other out-of-pocket expenses reasonably incurred.

In the limited time I have left, Mr. Speaker, the bottom line is we have seen two examples in this Province where the law in this given year, in the last two years, needs and cries out to be amended to catch up with modern day circumstances, the same as other provinces have already done. What form the legislation should ultimately take? We do not know. You might ask the question: Well, why do you have do this through a select committee? Mr. Speaker, we have had all kinds of presentations done by law societies. We have had the pronunciations of individual lawyers like Mr. Crosbie who did personal injury actions. The proper place to do it, where you can have a full hearing, and not only get it from a legal perspective, but you can have the input of the individuals involved is by doing a select committee of the House and get the input from the public – all the other stakeholders. Everybody in this Province is truly a stakeholder in this issue.

Mr. Speaker, I had the benefit of meeting with a person who was impacted. I met with the husband of one of the ladies who lost their life - Mr. Howell, actually - as a result of the Cameron Inquiry. I saw it myself upfront and close, of course, as a lawyer when you do personal injuries, but meeting with this gentleman again brought it home real clear. Why should an individual who has lost his spouse, who is left with children, why should you be limited in what you recover if it was someone else’s fault that caused that death? Why should you be limited in that case? It is totally uncompassionate to allow the law to stay in the current form that it is. How can we ever justify staying in the past? We are 200 years back from where the law should be.

This is a case where - I know the government does not like to try to strike select committees of the House; I do not know if we have had either one since 2003. We had a couple back earlier. We had one in 2000 on the seal fishery. I believe we had one in 2001 dealing with fishery products. People went out around the Province and came back with something that was in the best interests of all the Province.

This is one of those types of issues. This is not a political issue. This is not an issue where we are even suggesting what the results should be. This is simply calling upon government to say let’s recognize that we have a problem, let’s recognize that we are behind the cue on this, let’s go get the input from the stakeholders who are involved here and let’s come back, once we have done the proper investigation through a select committee, and allow the stakeholders an opportunity to have their input, come back to this House with recommendations, or to the government with recommendations as to how we should proceed to amend our Fatal Accidents Act and Survival of Actions Act so that we become current.

We do not have to see the people of this Province suffer anymore based upon the state of the current law. We do not have to see governments who are forced to react to situations because the law is wide open and then governments do not have to get brought into it because of public pressure or whatever else, but you can allow it, to the individuals themselves, to take their cases and go forward and get the compensation that they ought to get.

Thank you, Mr. Speaker.

MR. SPEAKER: The hon. the Minister of Justice and the Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Thank you, Mr. Speaker.

It is a pleasure today to rise in this hon. House and make some comments in response to the private member’s motion brought forward by the hon. the Opposition House Leader.

Certainly, anybody who has been involved in the practice of law in this Province over the last number of years would be familiar with the issues raised by the hon. member with respect to the Fatal Accidents Act and the Survival of Actions Act. It is not a new issue and an issue that has received much discussion in the legal fraternity.

As the hon. member points out, there are some problems with that legislation in that it restricts the amount of damages and the type of damages that can be claimed under the act. I want to just briefly point out the purpose and object of both those pieces of legislation because they really have to be read together. The Fatal Accidents Act creates a right of action that is not available in common law and the Fatal Accidents Act in our Province permits the near relative of a deceased victim to bring a specific action against a person who commits or is guilty of a wrongdoing, but only if the person, if they had survived, had an accident in his own right. That is what the Fatal Accidents Act is all about.

Mr. Speaker, the death of a loved one is an incredible difficult event, which can permanently alter the direction of a person’s life. The Fatal Accidents Act is legislation intended to minimize the economic impact on the lives of people who are financially dependent on the family member that had been wrongfully killed.

The Province’s Fatal Accidents Act, Mr. Speaker, was first passed in 1916and modelled on the British act of 1846, and the current act is substantially the same as this dated legislation. There have been many transformations, Mr. Speaker, in our country, in our Province and in our society since that act was created. It is suggested, and understandably so, that the current Fatal Accidents Act does not fully reflect those changes. It also concerns that the Fatal Accidents Act has not kept pace with developments in other common law provinces, as indeed the member has pointed out.

The Survival of Actions Act, Mr. Speaker, is simply to put the deceased estate, with very minor exceptions in the same position. An action against an individual or by an individual carries on when that individual dies and that allows the estate to carry on the cause of action, but it does not create any new rights of action, it preserves without interruption any action that is ongoing.

Both those acts, Mr. Speaker, have raised some issues. Damages that are awarded to address financial loss suffered as a result of the death of a family member - and that is the issue that the member refers to. The goal of any claim, a court claim, or a court action, or any action with respect to loss of damage of this type is to restore the person in the same position that he or she was in prior to the incident or prior to the death of the individual member.

The act does not address emotional loss or damage such as pain and suffering, for example, loss of enjoyment of life. The person who is a family member not only does he suffer financial loss, Mr. Speaker, but they cannot use the act to seek compensation for their other losses. Now, no amount of money, Mr. Speaker, can compensate a person for the loss of a family member, but there is a case to be made for damages for non-financial impact of the loss.

Also, Mr. Speaker, for example if a spouse or a direct relative of a deceased was not able to return to work as a result of the loss, then that person cannot claim for loss of employment because of that. There are a number of issues, no doubt about it, a number of issues about these two acts that restrict claims that people can make.

The leading case in this Province, Mr. Speaker, on that is a case of McLean versus Carr Estate, 1994 decision in the Supreme Court Trial Division, in which Justice Barry at that time determined that – and that was a case where Mr. McLean suffered fatal injuries as a result of a fall from an all-terrain vehicle and he was survived by his wife and three children. In that case Justice Barry determined that a child’s loss of parents care and guidance is considered to be a loss of a pecuniary nature, a financial nature, and should be recoverable under the Fatal Accidents Act.

He, in that case, Mr. Speaker, awarded all three children $1,000 for every year until they reached the age of eighteen. This resulted in awards of $9,000 for the nine-year-old; $7,000 for the eleven-year-old; $6,000 for the twelve-year-old. He further determined, Mr. Speaker, that award for loss of care, guidance and companionship should not be confined to children, that the widow was also entitled to compensation for her loss because she should be compensated for loss of care and counsel she would have received from her spouse had he lived. For example, if a spouse becomes ill, he can expect to be cared for by the other spouse, or if a difficult personal decision must be taken, he can expect one spouse to provide advice. These are the sort of services that you can retain, Mr. Speaker, through a private nurse or a counsellor, so you can put a financial figure on it. There was no where in that act, no where in the legislation that allowed Justice Barry to make compensation for the widow in that case.

I am advised by my officials, and the hon. member referred to them briefly, that other jurisdictions: Alberta, Manitoba, Nova Scotia, New Brunswick and Saskatchewan have amended their fatal accidents legislation to include a separate legislative provision directing that pecuniary loss of the family be compensated. The wording is not consistent throughout the provinces but, as the member pointed out; all of these provinces, to some extent or other, have included a provision in their fatal accidents legislation to take care of non-pecuniary losses for family members.

Alberta, for example, makes it automatic – Alberta makes it automatic; $75,000 for the spouse; $45,000 to each minor child; $75,000 to the parents and so on. They will be reviewed every five years to make sure they are adequate. Manitoba has similar type provisions that gives the immediate family automatic relief under the act, as do Saskatchewan, and they are provided automatically under the legislation.

The remaining jurisdictions, Mr. Speaker, British Columbia, Northwest Territories and the Yukon are in the same position as Newfoundland and Labrador. They have not amended their legislation to date to include any discreet legislative provision for the loss of guidance, care and companionship. Like this Province here, we have depended on case law over the years in the respect of – and these jurisdictions have been the same – giving awards for loss of care, guidance and companionship as was evident in the case by Justice Barry.

One concern, Mr. Speaker, that is raised with awards for non-pecuniary or non-financial damages, is that they appear to want to attach a financial value to a person and asking the court to try to translate into financial terms the value of a deceased person is a monumental task. No amount of money can compensate a person for the loss of a loved one. To try to put a person’s grief on trial to determine how much pain and suffering the individual has gone through, and then again to assess how much they should get in compensation for that, that is a difficult situation.

That is one of the reasons, I would suggest, Mr. Speaker, that this legislation has languished for a while. There are some strong reasons, of course, to allow claims for non-financial damages because while the tragedy of a family member is incredibly difficult being able to claim for compensation for their emotional suffering can be devastating to them, but to give some compensation under the act sort of gives recognition of that loss, an acknowledgement of the severity of the impact of the death on the individual.

Mr. Speaker, in regard to the Survival of Actions Act the same thing applies. The Survival of Actions Act says the only damages that can result in actual momentary loss to the estate are recoverable. That is all that is recoverable under the Survival of Actions Act. That is similar to the provision in Nova Scotia, New Brunswick, Prince Edward Island and several other provinces.

Mr. Speaker, there is no doubt this legislation is outdated - there is no doubt that this legislation is outdated. Mr. Speaker, the idea of damages, just for the benefit of the people who do not have legal backgrounds or the people who are watching on this presentation, the purpose of damages, when we think on damages the ordinary person thinks about damages in terms of damage to property. Damages in law has a different connotation altogether. Damages in law is a pecuniary compensation for a wrong that is done to you, and it is measured in money.

The hon. member mentioned exemplary, punitive damages a few minutes ago, that is damages that are added on to pecuniary or non-pecuniary damages he might have received. Punitive damages are awarded in a case where you want to punish the defendant because he acted maliciously or wilfully in causing the problem in the first place.

So the issue with damages is a complex one, and there are many heads of damages that can be claimed. For example, if you were injured in a car accident and you survive, than there are all kinds of damages you can claim if the other party was negligent: pecuniary damages, non-pecuniary damages, loss of income, loss of pension benefits, income and support for your family members. There is a whole list of heads of damages that you can claim on. That is not the case if the person died as a result of the accident, and that is the problem with these two pieces of legislation, and as pointed out by Justice Barry in 1994. In 1994, that is fifteen years ago, Mr. Speaker, and there have been a number of governments prior to this one who have not taken any action on that particular piece of legislation. So, whether it was Liberal governments, Progressive Conservative governments, nobody has addressed this legislation, and certainly it has always been an issue in the legal fraternity.

The legislation is outdated, needs to be reviewed, especially in light of evolving legislation in other Canadian jurisdictions in case law. We need to allow for a greater scope of the recovery of damages under these two pieces of legislation. Mr. Speaker, officials in my department are aware of this limited scope of recoverable damages, and my officials are already engaged in looking into these issues and continue to review the adequacy and the currency of both these pieces of legislation, and the scope of compensation that they provide.

Mr. Speaker, in the Department of Justice notice published under the Executive Council Act, the powers, functions and duties of the Minister of Justice include the supervision, control and direction of all matters relating to the administration of the acts that are set out in that schedule. This includes legislative reviews of the some hundred pieces of legislation that falls under the responsibility of my department, and which includes both the Fatal Accidents Act, and the Survival Of Actions Act.

Mr. Speaker, clearly, it is the responsibility of the Minister Justice to continually review legislation, and we do that. We bring it to this House. In every session of the House the Minister of Justice will bring legislation to the House that reviews and corrects previous legislation, modifies previous legislation and brings it up to date. That is the role of the Minister of Justice, the Department of Justice, and is exercised in every sitting of this House.

Accordingly, Mr. Speaker, I would propose today an amendment to the private member’s motion which basically says that my department, the Department of Justice, will move forward immediately with a comprehensive legislative review of the Fatal Accidents Act and the Survival of Actions Act with consultation to be carried out as the review indicates would be helpful.

Mr. Speaker, I present the amendment, moved by myself, seconded by the hon. Member for St. John’s North, to move that the private member’s resolution currently before the House be amended:

(a) by deleting the words "are deficient in that they" in the third recital clause;

(b) by deleting the words "is deficient in that it" in the fourth recital clause;

(c) by adding, immediately after the fourth recital clause, the word "and" and the following fifth recital clause:

"Whereas the Government of Newfoundland and Labrador has been examining the Fatal Accidents Act and the Survival of Actions Act to determine whether and which changes may be warranted with respect to limitations on recoverable damages"; and

(d) by deleting the resolution clause and substituting the following:

"Be it resolved that this House of Assembly call on government to move forward with a review of the Fatal Accidents Act and the Survival of Actions Act with respect to limitations on recoverable damages and, in conducting this review, to examine the practices and legislation of other jurisdictions."

Thank you, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER (T. Osborne): Order, please!

The Chair will take a brief recess to allow all parties in the House to have a chance to review the amendment and to allow the Chair to review the amendment and make a decision as well.

MR. SPEAKER: Order, please!

The Chair has reviewed the amendment as put forward by the hon. the Minister of Justice and we find the amendment to be in order.

The hon. the Member for Port de Grave.

MR. BUTLER: Thank you very much, Mr. Speaker.

It is a pleasure to be able to stand today and take a few minutes with regard to the private member’s motion put forward by my hon. colleague, the Opposition House Leader, the private member’s motion on fatal accident compensation. As was stated in the private member’s motion that he put forward, and I guess it is similar to the be it resolved in the amendment that has been put forward apart from the part about an all-party select committee to the House, it references the Fatal Accidents Act and the Survival of Actions Act.

Mr. Speaker, Chapter F-6 of the Fatal Accidents Act states it is: An Act Respecting Compensation To Families Of Deceased Persons When Death Occurs Through Negligence. Chapter S-32 of the Survival Of Actions Act, An Act To Provide For The Survival Of Certain Causes Of Action.

Mr. Speaker, we all know, I guess, this was brought about by the Judicial Commission of Inquiry, known as the Cameron Inquiry, which began, I think, in March, 2008. It was from there, I guess, from all the hearings that we heard, it was more or less to try and get to the bottom of what had gone wrong with the ER-PR testing crisis.

I will admit, Mr. Speaker, that when it comes to the legal aspect of it I am not trying to be on par with the two previous speakers, let me assure you. They are very learned individuals and I am not going into the legal aspect of it. I hope, over the few minutes, that I will try to put a human factor into play. I am sure we all watched the individuals as they attended the hearings. We listened to their family members and yes, Mr. Speaker, we even saw some of the individuals take the witness stand.

We know that once this was all finished Madam Justice Cameron’s report was released to the public with some sixty recommendations. It was then when counsel, Mr. Ches Crosbie, went forward with a class action seeking damages, not only for personal injuries, but mental distress, nervous shock, care, companionship, et cetera, for all patients who were under this particular receptor testing. We all know and we have heard that any delays in the settling of this action would result in possibly a lower settlement for the victims and their families if they should succumb to the cause of their illness.

Mr. Speaker, even today, many families are still wondering what would have happened if they had received tamoxifen. Unfortunately, a claim for pain and suffering compensation went when those individuals passed away. However, throughout Canada, the wrongful loss to society and comfort for a loved one is compensated to a certain degree in each of the other jurisdictions. Even though those jurisdictions may be different in many ways, but some form of coverage is in place.

We know, Mr. Speaker, and we have heard many times, courts have condemned the law as being inhumane – and we have probably heard that here today. The Supreme Court of Canada has condemned the wrongful death laws that we still enforce, and it seems, Mr. Speaker, that we are really out of touch with the modern conceptions of fairness and justice. Our legislation entitles those affected to receive a small amount of compensation; however, additional funds were provided above what our legislation entitles an individual to receive. The motion that was put forward for an all-party committee – and we know that has been amended.

I want to say, Mr. Speaker, from where we stand, this was not a plan to criticize or to have anything negative to say to government. This has, in no way, any political hidden agenda. It was a means to accomplish a review of legislation that has been there for many, many years, and hopefully, allow family members of deceased members and loved ones, to be able to claim compensation.

Mr. Speaker, we have seen their stories, we have heard their stories, we have seen those involved in the media, and yes, each and every one of us, I would venture to say, has known someone personally. I know, Mr. Speaker, our family was very close to a lady who passed away recently. When you are close to an individual, you can only imagine what they all went through their last few days, knowing that when they passed away, any chance for their families to receive compensation for pain and suffering went with their passing.

All our residents of this Province, Mr. Speaker, I think deserve better and we, by changing the legislation as it is today, can make that happen. This should be entrenched in the laws of our land and then possibly government would not be placed in difficult positions from time to time when cases come forward.

Mr. Speaker, there are other people throughout our Province who were not included in this class action. I ask: What options are open to those people? I suggest that we should try and correct the wrong, based on what a review would bring forward, even though I know the amendment states otherwise, and I am sure my hon. colleague will speak to that when he closes debate.

Compensation after death due to negligence, I believe, should be a right, and unfortunately, our laws today does not allow that. Other provinces have recognized this and I think that we should do the same. I am sure there are many others outside of the cases that we come to know because of the Cameron Inquiry. There are many other situations and various situations throughout the Province that people are placed in a similar situation. They also deserve the opportunity to have the laws protecting their rights to compensation enshrined in the laws of our land.

I understand that in our Province judges have unilaterally allowed some claims on a nominal basis, for example, possibly allowing $1,000 for each child under the age of eighteen. However, our Fatal Accidents Act is unclear and they may be excluded based on our legislation. By contrast, and I will just use one example, in Alberta under section 8(2) of their act, it provides an award for grief and loss of guidance, caring and compensation of $75,000 for a spouse, and $45,000 for each child who is a minor or if they cease to become a minor and are unmarried.

Mr. Speaker, while it is true that money will never right the wrong, it is a means for those people to know, in their circumstances, that compensation is available, and they may not have to worry about the suffering and worrying of what is happening if they do not survive their illness. We have learned much through the Cameron Inquiry. As the former speaker mentioned, as of July, 127 have passed away, of the 425 who had changes to their test results. Their pain and suffering will never be known. We must recognize in law for their sake and that of their families.

Mr. Speaker, I believe that we should move forward and become more proactive on a go-forward basis by implementing, I suggest an all- party select committee, even though the amendment says otherwise, with the hope that recommendations will be enacted into law for the residents of this Province.

Thank you, Mr. Speaker.

MR. SPEAKER: The hon. the Member for Signal Hill-Quidi Vidi.

MS MICHAEL: Thank you very much, Mr. Speaker.

I am quite pleased to stand this afternoon to speak to the civil compensation, private member’s motion. I think this a very important issue that the private member has brought to the House for our discussion. I am quite pleased to stand and support the original motion that was brought to the House.

One of the things I think that all of us in the House agree, and I think it has been obvious in the speakers before me, that we all recognize that when people suffer from damage that has been caused in the health system, not just in the health system but that is what we are dealing with today, but when damage has been done to people, damage has been caused that causes them to be affected, whether it is through complete loss of life or through maiming, that they deserve absolutely, to have recompense for what they are going through and what they have been through. That it is not only the patient, it is not only the person who has had damage done to them that suffers but when we think about whether it is an accident or somebody in the health care system being affected the way the patients who underwent the ER-PR testing were affected, that everybody who is part of their life is affected. It is not just the individual. If they have partners, if they have children, if they have parents still alive, even grandparents, the issue is that it is not just the individual who is impacted. All those who are close to that individual are impacted.

That is what this motion is all about. It is recognizing that when an individual suffers, everybody who is close to that person also suffers. It is a deficiency in our current legislation, and I do not know why the government would think they had to take out the word deficiency. It does not mean the government is deficient, but we do have a deficiency in our legislation because of the fact that our legislation only recognizes the right of the individual to having recompense.

The action that took place with regard to the ER-PR testing sought damages for personal injury, which is quite logical, mental distress and nervous shock, referring to the patients. The action that was laid on behalf of the patients who underwent the ER-PR testing also sought loss of guidance, care and companionship, loss of consortium, mental distress and nervous shock, which related to the relatives of patients. It is more than just. It is actually humane to recognize that the close relatives of the patients who died go on suffering, and it is hard to measure what their suffering is. The pain of loss is bad enough. We all have undergone that I am sure, and when we lose a loved one there is immense pain. When you lose a loved one with the knowledge that perhaps the loved one would still be alive if the loved one had had the right treatment, than that is an untold stress on the person. The mental agony that one goes through, I cannot image because I have not gone through it myself, but I can just image how bad it is.

I think it is right to recognize that our current legislation is deficient. As I said, it is not a statement about government. It is not putting government down. Our legislation is deficient, and we want our legislation to improve. We want that legislation to be on a par with other legislations in the country. I know my colleagues have already said it, but there are at least five other provinces which have made legislative changes in their legislation and now include claims for loss of guidance, care and companionship; Ontario, Nova Scotia, New Brunswick, P.E.I. and Alberta. All of these provinces have recognized that their legislation was deficient.

Manitoba also made changes. As a matter of fact, I think they began making changes in the 1970s. They realized that they had to recognize the pain that the family members go through. There is a lot for us to learn from the other provinces. I will not go through all the provinces, but I am sure that as the legislative review happens, every single province will be looked at and should be looked at.

I am just taking one province. For example, in Manitoba under section 3(1) of the act, the claimants include spouses, including common-law spouses as defined in the act; parents, including grandparents, step-parents and persons in loco parentis to the deceased; children, including grandchildren, step-children and a person to whom the deceased stood in loco parentis, and siblings.

The other thing that is significant in Manitoba, and I think this is very important, is that no personal assessment of the claimant’s loss of guidance, care or companionship is made. In other words, they do not have to prove the degree to which they are suffering as claimants. It is accepted that people who have been close to the individual who is now dead have undergone pain, are undergoing a loss of guidance or a loss of companionship. That is recognized. They do not have to prove the degree to which they are suffering. You get standard awards; obviously, everything has to be looked at.

In Manitoba, for example, the standard award for spouses, parents, and children is $10,000. The standard for siblings is around $2,500, recognizing that there are some levels of a relationship that are closer than others. It is never easy to come up with a figure because money will never undo what they have gone through. I think this money has to recognize things like people might have to go through therapy; people might have to get counselling just trying to cope with the loss of their loved one. The money that would be allowed for recognizes that.

I am not going to spend too much more time talking about the need for the change in the legislation. I think everybody, from the presenter of the motion through to the minister and the second speaker from the Official Opposition, have shown why this is necessary. I am glad that the minister has assured us that he recognizes why it is necessary to make changes to the legislation.

The thing I would like to use the rest of my time to talk about is why I think it is important that an all-party select committee is set up to deal with the issue. I firmly believe that we should have in this Province a better committee structure, we should have standing committees that deal with issues on a regular basis and we are the only province in Canada that does not have standing committees dealing with policy issues as a regular ongoing, all year-long activity. Our standing committees, except for the House of Assembly Management Commission, come to play mainly at budget time. The committees are the committees that take part in the Estimates meetings. They are the ones that quiz government on the use of money, but that is the only time that our committees standing even though our Standing Orders say that these standing committees may meet at all times throughout a year, even when the House is not sitting.

I think, right now, we are talking about putting in place an all-party select committee, and I guess we are having to do a select committee because of the fact that we do not have the practice of our standing committees, the social program, the Resource Committee, for example, we do not have the practice of their meeting all year round. If they did, we would not have to do an all-party select committee because there would be a standing committee that could deal with this issue. It is important that we have committees that deal with these issues, that we have all-party committees that deal with the issues.

What happens with all-party committees, number one, is that work can go on even when the House is not sitting. The work that is important here is the work of discussing and putting in place legislation. I do not think that we adequately deal with legislation by only dealing with it here in the House of Assembly, within the confines and the restrictions of the rules of debate in the House of Assembly. To have full discussion on legislation, you do it in committee, and that is how it is done in every Legislature across Canada. I am not talking about something that is weird and strange. I think it is really logical. Then, in committee, when all parties are in committee together, new ideas come out. It is not just bureaucrats inside of a department who are writing the legislation. If one thinks that we need to have experts come and speak to us, they can be called to a committee. So having standing committees and having all-party committees really enriches the discussion that goes on around policy. We have more time to deal with issues, more time to think about what we are doing and it is a broader discussion than just having it done inside of a department and then brought in here to be discussed, as I said, in the confines of the rules of debate inside the House.

It is not a strange thing to expect; it is not a strange thing to ask. As I have already said, every Legislature in Canada, including the federal as we know, we all know the parliamentary committees. All of the other Legislatures have standing committees who do ongoing policy discussion whether the House is in place or not. For that reason, I am very happy to support the resolution calling for the select committee. I wish we had standing committees. Since we do not, it is necessary to call it as a select committee.

With that, Mr. Speaker, I think I have made my main points and I am not going to continue talking just for the sake of talking. I do support the original resolution and I will be voting against the amendment.

Thank you.

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

The hon. the Opposition House Leader.

I guess it being Wednesday and being the presenting member, the hon. the Opposition House Leader will close debate.

MR. KELVIN PARSONS: That is my understanding, Your Honour, that there are no other members to speak.

Mr. Speaker, I thank the hon. members for their contributions. The Minister of Justice and Attorney General who, being a lawyer himself of course, would be well aware of the Fatal Accidents Act and the Survival of Actions Act, the Member for Signal Hill-Quidi Vidi and the Member for Port de Grave for their commentary.

I think there is recognition, no doubt, that there is an issue here that we need to be brought into the twenty-first century when it comes to these two pieces of legislation. I guess we differ based upon the amendment that was put forth as to how we should get there.

Obviously, the amendment that the minister put forward wants it to be done in a review forum. I am disappointed to hear that and saddened, actually. There is no doubt that this government and successive governments have been reviewing this since 1832 and nothing has happened from governments. That is how long it has been – since 1832.

To suggest that a government, not only this government, but any government is just going to continue to review without doing something substantial, something that lets the stakeholders have an input. You notice again we saw this in an earlier private member’s motion submitted to this House that this government ducks the tough decisions when it comes to letting stakeholders have a say. That is not involving the people in the process.

Go ask some of the family members who were involved in Cameron, if it is okay to have government decide where they should go. Go ask the members of the Cougar families if it is okay just to have government quote, review. That is a pretty loosey-goosey term, Mr. Speaker – a review by government. Is that going to be a few lawyers up in the civil Department of Justice going to sit down, put their heads around it and say this is what we think is okay? There is nothing definitive and substantial about this amendment at all saying: Yes, we will look at. No more than that. That is not good enough.

These pieces of legislation cry out to be amended and to be addressed properly. All we have asked for here today is that it be done in a proper fashion, in a proper forum. They could have even suggested some other forum to hold the hearings. It could have been something else other than a select committee, but no, what did government do? Government ducked the opportunity to have a public review of this thing and said: No, we will look at it.

I will not be voting for the amendment on the amended resolution just for that reason, because it changes the full intent and scope of what was intended by the principal motion. The principle here was to let the public have a say because it is the public who were impacted by this draconian legislation that we still operate under, and to suggest that we are going to take it, shove it in the closet and just shine a light on it whenever we get around to it by way of a review is just not acceptable. That is not doing justice to anybody in this Province who is going to need to have this piece of legislation in the future. It is not good to the people who have been impacted by the two recent tragedies we have had in this Province.

It is sad to see, but I guess because you carry the numbers, of course, that is who carries the day, but unfortunately, the people of this Province are not being well served now by an amendment of this type, which totally guts what the intention was, which was to have input from people so that we could move ourselves into the current day circumstances and not live in the dark ages like we have been living with these two pieces of legislation.

Thank you.

MR. SPEAKER: Order, please!

Is it the pleasure of the House to adopt the motion as put forward by the hon. the Minister of Justice?

All those in favour, 'aye'.

SOME HON. MEMBERS: Aye.

MR. SPEAKER: All those against, 'nay'.

SOME HON. MEMBERS: Nay.

MR. SPEAKER: Carried.

Is it the pleasure of the House to adopt the motion as amended?

All those in favour, 'aye'.

SOME HON. MEMBERS: Aye.

MR. SPEAKER: All those against, 'nay'.

SOME HON. MEMBERS: Nay.

MR. SPEAKER: Carried.

Motion, as amended, carried.