CONTENTS
Wednesday May 4 1994
Review of regulations reports
STANDING COMMITTEE ON REGULATIONS AND PRIVATE BILLS
*Chair / Présidente: Haeck, Christel (St Catharines-Brock ND)
*Vice-Chair / Vice-Présidente: MacKinnon, Ellen (Lambton ND)
*Eddy, Ron (Brant-Haldimand L)
*Fletcher, Derek (Guelph ND)
*Hansen, Ron (Lincoln ND)
Hayes, Pat (Essex-Kent ND)
Hodgson, Chris (Victoria-Haliburton PC)
Jordan, Leo (Lanark-Renfrew PC)
*Mills, Gordon (Durham East/-Est ND)
O'Neil, Hugh P. (Quinte L)
*Perruzza, Anthony (Downsview ND)
*Ruprecht, Tony (Parkdale L)
*In attendance / présents
Clerk / Greffière: Grannum, Tonia
Staff / Personnel:
Fenson, Avrum, research officer, Legislative Research Service
Kaye, Philip, research officer, Legislative Research Service
The committee met at 1010 in committee room 2.
REVIEW OF REGULATIONS REPORTS
The Chair (Ms Christel Haeck): We have before us the reports of our legislative research staff, Avrum Fenson and Philip Kaye. There are a couple of reports that were given to you in your offices. We had started discussing these some months ago in an effort to clear up a long-standing situation where the reports needed to be made. We're going back to 1989, as you can see from your agenda.
I believe, Avrum, you were making the presentation, if my memory serves me correctly.
Mr Avrum Fenson: There are two reports in front of the committee. One is a draft report on 1989 regulations which was first given to the committee about three years ago, and another report covering 1990, 1991 and 1992 regulations. Both of these were brought again to the committee before Christmas. If the committee is interested in further comment on the reports or on specific regulations, we're prepared to make them.
The Chair: I don't see anyone jumping up with questions at this point. I'm just looking through my accumulated drafts here myself. I believe there were some discussions about some important points the last time, some highlights. I have forgotten my other copy. Mr Eddy, did you have one or two comments to make?
Mr Ron Eddy (Brant-Haldimand): It's just this point of follow-up from the 1989 report, to make sure that corrections or alterations or indeed amendments that really are required to make a regulation legal without question have been made. I know there are always some minor technical points in these things and I'm not worried about them today. It being spring, my spirits are high, so I'm not worried about the minor ones. It's to make sure that there's a legal basis for everything, because those things come back to haunt you. So I think just an overview like that to bring us up to date.
The Chair: I think it's important. We've got the guidelines on page 3, for members: "Regulations should be in strict accord with the statute conferring of power"; "Regulations should be expressed in precise and unambiguous language"; "Regulations should not have retrospective effect unless clearly authorized by statute."
Philip has raised another one which possibly he could flag for us. Can I turn it over to you, Philip?
Mr Philip Kaye: As I mentioned at the last committee meeting devoted to regs, the terms of reference of this committee are found in the Regulations Act and also in the standing orders. The standing orders list various criteria that have to be applied to the regulations.
One of the criteria is the subject of a memo that has been distributed today. It's the sixth guideline in the standing order. This guideline says, "Regulations should not impose a fine, imprisonment or other penalty."
An issue of interpretation has arisen where the research service would like some direction from the committee in interpreting this guideline. The issue is whether or not the guideline creates an absolute or complete prohibition against imposing a penalty by regulation so that under no circumstances can you impose a penalty by regulation, or should the guideline be interpreted in a qualified sense so that if a statute says you can impose a penalty by regulation, then it's okay?
I looked at how previous regulations committees have interpreted this guideline and there isn't a lot of comment. Back in the late 1970s when the guideline was in a proposed format, the standing statutory instruments committee commented on it in a few reports and it took the absolute prohibition approach, saying that penalties for contravention of a regulation or an act had to be in the act itself and not in the regulation made under the authority of the act.
In one report, the first report of June 1978, that committee expressed complete agreement with a conclusion of the McRuer commission, that:
"Some sanctions for breach of prohibitory regulations are necessary, but in our view the penalty should be fixed or at least limited by the statute authorizing the regulations. It should not be left to the subordinate legislator to fix penalties according to his or its will."
Then I discovered about 10 years later the standing committee on regulations and private bills, in its first report of 1988, took a very different approach to this guideline. Instead of adopting the complete prohibition interpretation, it adopted the qualified approach. In that report from 1988, and I quote from it on page 3 of the memo, the committee declared:
"Unless there is statutory authority for so doing, regulations should not impose a fine, imprisonment or other penalty."
The 1988 report doesn't explain why it's taken a different approach from the report in the late 1970s.
There's a book that was recently published on regulations entitled Delegated Legislation in Canada, and it devotes most of one chapter to the work of this committee. The authors appear to interpret the guideline as meaning an absolute prohibition against the setting of penalties by regulation. For instance, they write that the guideline is "aimed primarily at enabling clauses which authorize regulations to provide for penalties."
One problem raised by this complete prohibition approach is that it might be inconsistent with the mandate of this committee in the Regulations Act, because the Regulations Act says that the committee cannot look at the "merits of the policy or objectives to be effected by the regulations or enabling statutes," so that the committee cannot comment on whether or not the wording of the regulation-making powers in the statute is good or bad. If the committee adopts the complete prohibition approach, the committee would be saying: "We don't care that the statute says you can impose a penalty by regulation. If you do so, you're violating one of our guidelines."
What the research service would appreciate is some direction as to whether or not we should interpret the guideline as creating a qualified prohibition and look to see if the statute says you can impose a penalty by regulation, and if it says so, then a penalty would be in compliance with the guideline.
Mr Eddy: Has there been any challenge to a regulation through the courts of imposing a fine, imprisonment or a penalty? Has there ever been any, that you know of?
Mr Kaye: I'm not aware, unless it was a case where the statute didn't say anything about creating a penalty by regulation, in which case there might be a court challenge on the basis that the regulation is not authorized by the statutes.
Mr Eddy: Then that doesn't help us in this case, really. It's not really what we're getting at.
Mr Fenson: Yes. The issue of the meaning of this guideline wouldn't have been litigated. It simply would have been --
Mr Eddy: No.
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The Chair: We have a number of things then. Both Mr Kaye and Mr Fenson have flagged a number of things for us to consider. I think it probably would be appropriate to deal with this chronologically and go from what was the oldest report that needs to be dealt with first. I believe that is in your bailiwick, Mr Fenson.
Mr Fenson: Yes. This report --
The Chair: It would be the draft report on 1989 regulations.
Mr Fenson: On 1989 regulations, yes. This report notes regulations which violated the guideline on retrospectivity, the guideline on statutory authority and the guideline concerning precision of language. The violations of retroactivity were basically late filings. A late filing simply means that the regulation itself took the trouble of stating in its own text when it was to come into effect, which they don't always do, and yet was filed with the registrar after that date. That usually is as a result of a long weekend or just small oversight.
We do report those because it does create basically a law which purports to come into effect before the procedure making it a law is fulfilled. Not too much administratively rests on that, but we have been in the habit of reporting them. We did have a change of policy on another sort of retroactivity, and that was a regulation which dealt with something with reference to an earlier date. For example, a regulation made in October might say that the fees paid for court reporters as of April 1 will be such-and-such.
I must admit that the response of the ministries was querulous when we wrote to them about this, but they struck us as being violations of the retroactivity guideline. Since they were so upset by it, I checked with the Office of the Provincial Auditor to see whether the auditor regarded this kind of regulation as proper authority for the expenditure. The auditor's office opinion was that it was acceptable, so on that basis we had a change of policy in the office and we no longer reported regulations of that second sort of retroactivity.
In this report, there are two types of problems with statutory authority represented. For example, on page 6, the regulation made under the Ambulance Act was actually a case of a regulation made by the wrong authority. The statutory authority in power is the minister to make the regulation and this regulation was apparently made by cabinet. We reported it as such.
The other kind, the more common violation of the statutory authority guideline, is one in which the authority relied upon doesn't seem to authorize precisely that kind of regulation. For example, under the Child and Family Services Act, a regulation noted on page 4 provided for forms for various ministry functions under the Child and Family Services Act and the authority for different kinds of forms in that statute is very spotty. The making of some forms is specified and the making of others is not. We brought this to the ministry's attention, and to the best of my knowledge they haven't changed the legislation in the intervening years. But we've reported this sort of thing before with that ministry and that statute.
The third guideline dealt with is the guideline against imprecision of language. Sometimes this comes up when a regulation is listing a series of conditions that have to be met but it doesn't specify whether all these conditions, or some, whether it's in the alternative. That's generally just a kind of oversight in drafting and those are usually happily repaired by the ministries. They have tended to agree with us in the past and to make the corrections when they have a general housecleaning of their regulations.
The other guidelines we have considered, we have asked ministries about them. We've raised the issue of taxation, the issue of some kind of punishment or fine, but we haven't in recent years reported any as violating those guidelines, though we have been tempted to on some occasions. But usually there was some explanation which made us doubt that it would be fair to report them.
The Chair: If I can just flag something for members, on page 8 Mr Fenson was referring to "precision of language." We've been dealing with at least one piece of legislation relating to the dumping of fill. It's the last one at the bottom. This may strike a chord with folks when they read this because of the fact that obviously if it's dumped on lot 10 as opposed to 15 or vice versa, it could create some rather interesting problems.
Mr Fenson: Yes. In none of these cases did any private citizen or body bring the ministry to court over this, so no harm was done in the real world. But the ministries did agree that the changes be made to this. Sometimes, of course, the passage of time made these problems moot. Sometimes it involved a licence or authority which expired not long after it was made.
The Chair: Are there any questions to Mr Fenson?
Mr Gordon Mills (Durham East): Isn't there some recommendation forthcoming? Is that here or not?
The Chair: Our task is basically to review these, obviously to ask questions as members see fit, and in the end to approve them and therefore to make a report to the House. As you can see, this is a task that has been sitting before us for some time as a committee.
Seeing no questions, I would ask finally if there are any other points that Mr Fenson would like to flag for us before I would put a motion before the committee to approve this particular report.
Mr Fenson: No, there are no other points. I covered all the categories of problems dealt with.
Mr Ron Hansen (Lincoln): Maybe Mr Perruzza's got a question here.
Mr Anthony Perruzza (Downsview): Now that you mention it, I did have several, but looking at the clock and seeing as how we want to get back into the debate in the House because there are several very, very important motions that are being discussed there this morning -- one has to do with guns, and since I represent a good chunk of the Jane-Finch community, that's an issue that interests me considerably. I can't believe that a Conservative member who was elected only a couple of weeks ago would negotiate time from his leader to introduce a bill that would allow people access to more guns.
The Chair: Thank you, Mr Perruzza.
Mr Perruzza: It's absolutely unconscionable, and I want to get in there and make those kinds of points.
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The Chair: We want to thank Mr Hansen for the opportunity for raising this also.
The recommendation before us is in fact to approve the draft report on --
Interjection.
The Chair: I'm sorry; I do stand corrected by the clerk. The actual report that we will be voting on is the standing committee on regulations and private bills' first report, 1991.
Mr Fenson: That's sort of been superseded. It's probably more accurately described as the draft report on the 1989 regulations. It might be, say, First Report 1994, because it would be named by the year in which it's --
The Chair: -- actually approved, rather than the regulations to which it --
Interjections.
The Chair: For all, there is a consultation now between the clerk and the researcher.
Just to flag for members, while most of the regulations contained herein relate to 1989 and the report that we have been working with as a working title has the date 1991, the reality is that it will be printed up as first report for 1994 because this is the year in which we are in fact approving it. Since you're all stunned into silence, I will put the motion forward.
Mr Hansen: Madam Chair, may I ask a question? Why has there been a delay since 1989 to look at these regulations? Five years? What is the length of time of the review? Maybe I missed that out.
Mr Fenson: I first gave this report to the predecessor of this committee on June 24, 1991.
Mr Hansen: I was the Chair at that time. Since I stepped out of the chair, have things been dragging?
Mr Fenson: It was well on its way.
The Chair: It now takes another Niagara member to finish the job. Under those circumstances, before we get into a real flurry of activity, I would ask if members are prepared to vote on the recommendation that this report be approved and then reported to the House.
Mr Perruzza: So moved.
Mr Hansen: Agreed.
The Chair: Any in opposition? Seeing none, the motion is carried.
I'm informed by the clerk that we will need approval for printing of the final report.
Mr Perruzza: So moved.
Mrs Ellen MacKinnon (Lambton): Does that require a motion?
The Chair: It does, and Mr Perruzza moved ahead with that. All those in favour of a motion to appropriately print the final report? Agreed? No opposition. Seeing none, the motion is carried.
Do I take it then, Mr Kaye, you will move on with the next report?
Mr Kaye: Yes.
The Chair: Do you want to read out the report title?
Mr Tony Ruprecht (Parkdale): We're still stunned into silence.
Mr Kaye: The next report is entitled First Report 1993: 1990-1992 Regulations. This report was drafted by Jacinth Herbert, who briefed the committee on it in December. She has since left the research service to go into private practice, so I will be briefly reviewing the regulations that are cited in it.
There are three regulations: one under the Environmental Assessment Act, one under the Pension Benefits Act and one under the Game and Fish Act.
On page 4, there is a brief discussion of the regulation under the Environmental Assessment Act, specifically O Reg 549/91. This regulation provides for an exemption of an undertaking for the expansion or upgrading of existing sewage or water systems of a particular type. There are various terms and conditions --
The Chair: Can I just interrupt you, Mr Kaye? In the copy of this report, it looks to me as if it copied every other page. It's the good librarian in me. Up until at least page 7, it left out the even-numbered pages. It only covered the odd ones to that point. We'll stand this one down for the moment until the clerk is able to copy the missing pages.
Mr Eddy: We're all right once we get to page 7.
The Chair: Right. So what we could possibly do then is, either one of the presenters could deal with some of the other items before us and just shift gears slightly.
Mr Kaye: There is another memorandum which members should have which I prepared on December 6. In part it was a follow-up to some questions that were raised at the previous week's committee meeting. The memo is entitled Review of Regulation-Making System, and attached to it are various documents which were requested at the previous week's committee meeting.
The first three documents attached are first of all a list of recommendations from the committee's report in 1988 on the regulation-making system. The second document is the government response to this committee's report, which consisted of a letter from Ian Scott, the then Attorney General, to Allan Furlong, who was Chair of the committee. Thirdly, there is a letter from Russell Yurkow, who was then the registrar of regulations, which looks at the issue of releasing draft regulations prior to the passage of the bill.
I also have attached a fourth item to the memo, and that is a letter from David Fleet, who was Chair of the regulations committee when it looked at the regulation-making process in 1988. This letter was written to Allan Furlong, who at that time was Chair of the committee, and in the letter Mr Fleet comments on the government response of Mr Scott to the committee's report.
I've highlighted these documents, starting on page 2 of the memo, briefly to give an overview of the committee's 1988 report on the regulation-making system. This report differed from the reports you're considering today, which look at specific regulations which are published in the Ontario Gazette. In the 1988 report, the committee stated that three principles should underlie reform of the regulation-making process. The three principles were fairness, accessibility and accountability.
There were several recommendations included in the report. Just to review the recommendations on four of the topics, one of the topics was entitled "Notice and Comment." That phrase refers to procedures for giving the public notice of and the opportunity to comment on proposed regulations.
The committee recommended that the Regulations Act should be amended to provide for notice and comment procedures that would apply to all proposed regulations, subject to certain exceptions. Thus, the committee wanted publication of a notice which would give a plain-language summary of the proposed regulation, give the reasons for the regulation and cite the relevant statutory authority. The committee felt as well that in general there should be a minimum period of 30 days within which the public could comment on the proposed regulation.
The Chair: Can I just ask you, do members mind if I raise a question at this point?
Mr Mills: Not at all.
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The Chair: I make the assumption that the regulation would then be published in its entirety in the Ontario Gazette. But are there any other publications where one might find a printed record of that proposed regulation? Most people are not subscribers to the Ontario Gazette, so they wouldn't necessarily decide to go there. It would more than likely be lawyers or obviously some stakeholders who might be interested. The Ontario Gazette is, then, the only location where it's published?
Mr Fenson: Unless there is a procedure specified in the legislation which says that the draft should be advertised in some other way, but that's very exceptional.
Mr Kaye: Although I should add that what the committee proposed was that this notice should be published in the Ontario Gazette, the Ontario Reports and "any other source that the ministry or agency considers necessary for reaching affected persons." The notice wouldn't be the actual proposed regulation; it would be a plain-language summary of the regulation. But the committee recommended that the actual text of the regulation should also be published, if considered appropriate by the ministry or agency, and that if the text of the proposed regulation was not published, the public should be informed as to where copies might be obtained.
A second issue that was dealt with in the 1988 report was the power of disallowance. This power denotes the power of legislators to vote the repeal of regulations. The committee recommended that the Regulations Act should be amended to give members this kind of power, and under the proposed amendment the committee would be empowered to make a report to the House containing a resolution that a particular regulation or part of the regulation be disallowed.
Once this report had been tabled in the House, a vote would have to be held within the next 20 sitting days. If there wasn't a vote, the report would be deemed to have been adopted. The thinking behind this recommendation was that the House simply could not ignore the report of the committee. If it didn't act, then the report would be deemed to have been adopted, and the Regulations Act would explicitly state that the adoption or deemed adoption of the report had the same effect as the repeal of the regulation. In essence, it would allow this committee to start the ball rolling in terms of getting a regulation repealed.
If, for instance, the committee felt that a regulation had been issued and there wasn't statutory authority for the regulation, under the current situation if the committee tables the report, there's no requirement that the House act on that report, although the committee has the option, under the standing orders, of requesting a comprehensive response to the report.
But in terms of ensuring that the regulation was amended so that it was authorized by the statute or that the statute was amended so that it authorized the regulation, there is no power that way to actually guarantee some kind of action, whereas under the power of disallowance, if in this situation the committee felt a regulation was not authorized by a statute and submitted a report with a resolution to the effect that the regulation be disallowed, the House would have to act. If it did not act on the report or it voted to accept the report, by simply voting to accept the report of this committee, the Regulations Act, under this recommendation, would say, "The regulation is repealed."
This is a power which exists in Ottawa, and when the committee held hearings in 1988 it was a fairly new power there. It's my understanding that it has been used four times in Ottawa and three times successfully. Although the wording of the power in Ottawa is somewhat different from the recommendation here, there are similarities.
A third issue that the regulations committee dealt with in 1988 was the mandate of the committee, which as I mentioned is found in the standing orders and in the Regulations Act. One of the proposed changes was that the committee's mandate should go beyond the review of regulations to the enabling clauses, to the regulation-making powers in statutes.
Under the recommendation, the committee would advise the standing committee considering a bill whether or not the enabling clauses contained overly broad or vague enabling powers. The standing committee to which the bill was referred would still have final say over the wording, but the enabling clauses would be referred to this committee for review in order to provide advice to that standing committee.
A fourth issue discussed in the report was sunset clauses. The committee recommended that the standing orders be amended to require standing committees to evaluate the effectiveness of regulations on a rotating basis. The objective was the systematic review of all regulations over a seven- to 10-year period. As well, the committee felt that before making or recommending a regulation, ministries and agencies should consider whether or not a sunset provision would be appropriate.
The Chair: I understand that in the US, sunset clauses are something that is fairly much in evidence. I'm not aware to the same degree what we have here in Ontario or even federally. Could you comment on that?
Mr Kaye: I'm not really familiar with what ministries are doing today in terms of the addition of sunset clauses.
The Chair: I know it's something that other jurisdictions make better. I say better because it's my feeling there should be a more regular review if things are still timely and appropriate. I don't think currently we're making use of some of those powers in a way that we should.
Mr Kaye: As I mentioned, the government responded to the committee's report in the form of a letter from the Attorney General in February 1989. In the response the government classified the committee's 44 recommendations into three categories: One category was recommendations that the government was inclined to accept -- six recommendations were in this category; 26 recommendations fell in the category of recommendations that required further consideration, and 12 recommendations were in the category of recommendations that were not considered implementable at the time.
The government response indicated that there was particular interest in considering further the recommendations with respect to notice and comment and disallowance. On page 4 of the memo, I've highlighted some of the government's comments on notice and comment, disallowance, the mandate of the committee and sunset clauses.
Just briefly on notice and comment, a concern of the government was that the committee's recommended procedures were too rigid and that the cost had to be considered in light of the benefits likely to be obtained in any individual case.
On the disallowance recommendation, the principal concern was that the process whereby the regulations would be automatically repealed if a vote was not conducted within 20 sitting days was of special concern. Accordingly, the government recommended that the issue be given further consideration.
On the issue of the mandate of the committee, and in particular the question of enabling clauses, the government felt this recommendation would result in a duplication of effort and cause a delay in the legislative process.
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On the question of sunset clauses, the government was inclined to accept the recommendation that ministries consider the appropriateness of a sunset provision when making regulations. However, the government felt that the proposal for a systematic review by committees of all regulations required further study.
Next, the memo discusses the assessment of the government response by the Chair of the regulations committee when it conducted its hearings on the regulation-making process. Mr Fleet wished the committee to build on what he termed the "positive" response of the government. However, he urged the committee to ensure that reform was "assiduously pursued" in the areas of notice and comment, disallowance, the definition of a regulation, sunset review and a citizen's code of regulatory fairness.
The final issue discussed in the memo has to do with releasing draft regulations before a bill has been passed. A few years ago, I asked the registrar the following questions:
"A government bill containing regulation-making powers is introduced in the House. Why are draft regulations not released before the passage of the bill? Why, for instance, do members not have access to draft regulations when the bill is in committee?"
The registrar agreed that "over the years, it has not been normal practice to prepare draft regulations before the bill has been passed by the Legislature." He wrote that the main reason for this practice was the "sequence of logical development" whereby the creation of a statute and a regulation were usually regarded as two separate processes which operated in series rather than in "parallel." One of his concerns was that speculative drafting would result and that until the bill was settled it would be impossible to settle the regulations.
The registrar of regulations, in his response, concluded by highlighting the advantages and disadvantages of changing to parallel processes. One advantage would be the opportunity for members to comment on draft regulations during the statute creation process. On the other hand, he believed that one of the disadvantages would be the extra time it would take to pass a bill.
Mr Mills: Right on. Are you listening, Ron?
Mr Eddy: Yes, I am certainly listening and I'm trying to think how I'd respond. I think it depends a bit on the bill and the wording. Some bills, as you would know, are more contentious than others. It just seems that since such a major part of the law is going to be in the regulations, it really is affecting the way you vote on a bill, maybe, depending on what you think might be in those regulations. In a lot of cases, I don't think it really is important to have them, I agree with you completely, but there are some contentious ones when the regulation could go this way or that way, and that's where the problem arises. I don't know. I guess the intent of a regulation would help considerably in a case like that.
Mr Mills: Being on the committee with Bill 120, I know that this came up time and time again. "Give us the regulations so we can really understand this." I appreciate that. I always thought that if we did that, we'd be there for evermore and that's one of the --
Mr Eddy: But with some bills I don't think it matters; it's not a contentious matter.
Mr Derek Fletcher (Guelph): But what would you do when you were looking at the regulations? What would be the purpose of looking at the regulations of certain bills in this committee?
Mr Eddy: I'm not so keen about really the actual regulations as the intent of the regulations, where they could go in diverse ways. I don't know whether there could be an intent of what the regulation would say. I realize you go ahead and do all these regulations and then the bill happens to be amended, and then those regulations all have to -- but surely in most cases they would just need to be amended somewhat. I know this point that comes up. We holler and holler and say, "We want to see the regulations," because they're so important and a major part of the bill.
Mr Mills: It's got its pros and cons, as we can see; that's for sure.
The Chair: Mr Kaye's final remarks were on page 5, and then there is a series of appendices which were flagged on the cover sheet for this particular review. I'm not sure we really have to go through the appendices. I think that's something members can do for themselves, which then will possibly expand on specific concerns, unless there's something Mr Kaye wants to flag that would be important in one of the appendices. I think it's more explanatory than necessarily a highlight that we would have to pursue.
Are there any questions with regard to this report on the regulation-making system and the recommendations that came out of the second report for 1989?
I would ask Mr Kaye then, as far as this particular document is concerned, is this basically for letting members know some of the issues that have been before the committee? I don't believe there is a particular action necessary at this time.
Mr Kaye: Correct.
The Chair: Correct; okay. So the review of the regulation-making system was there for the edification of members and the report that we will now turn to is the one that had the missing pages. It is now titled the Second Report 1994 and relates to the 1990-92 regulations. Again, I will turn to Mr Kaye.
Mr Kaye: As I mentioned, there are three regulations discussed in this report, the first one being under the Environmental Assessment Act, O Reg 549/91. It provides for an exemption of an undertaking for the expansion or upgrading of existing sewage or water systems of a particular type. There are various terms and conditions included in the regulation. One of the conditions permits the minister to change the expiration date of the exemption by publishing a notice in the Ontario Gazette. So in effect the regulation can be amended, not by another regulation but by a notice. The draft report says, "We believe that the Environmental Assessment Act does not confer this form of power upon the minister."
There have been two responses from the ministry to this perceived problem. The first response is dated July of last year, and a second response is dated from December. This second response was received after the committee briefly discussed this part of the draft report and the ministry was asked to comment.
All together, there are maybe four arguments by the ministry as to why this regulation should not be included in the report. One argument is that the condition whereby the minister can change the expiration date of the exemption is an administrative matter and that the policy in the committee's guideline on statutory authority applies to legislative matters only.
A second argument of the ministry is that the Environmental Assessment Act provides for the imposition of terms and conditions in exemption orders with the approval of the Lieutenant Governor in Council and that the fifth condition in the regulation is simply one of those terms and conditions. In other words, by approving the exemption order, the Lieutenant Governor in Council approved the minister publishing a notice in accordance with condition 5. In fact, according to the ministry, the exemption order could just state that a particular undertaking is exempted from the act, subject to such conditions as the minister may impose.
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A third argument of the ministry is that the exemption order is functionally equivalent to the Lieutenant Governor in Council approving the issuance of two exemption orders by the minister, one order to expire in March 1994, and the other to be issued later, with a later expiry date, which according to the ministry is authorized by the Environmental Assessment Act.
The fourth argument, and this was highlighted in the ministry response after this committee first looked at the draft report, is that with the passage of the Capital Investment Plan Act, the activities of the government which were formerly carried out pursuant to the exemption order are now carried out by the Ontario Clean Water Agency. Therefore, even if the committee feels that the minister should not have been given the authority to change the expiry date, "the question is now moot, as the minister will not need to exercise that authority."
The question is, do the members now wish to have this regulation deleted from the draft report in light of the further response from the Ministry of Environment and Energy?
Mr Eddy: I would agree.
The Chair: That it should be deleted?
Mr Eddy: Yes.
The Chair: Any other comment?
Mr Eddy: Is the Chair happy?
The Chair: I think the Chair's happy with that comment by Mr Kaye and, obviously, the acquiescence of Mr Eddy.
Interjection: Is there agreement, then?
The Chair: Yes. Could you make a formal motion, Mr Eddy, so that we actually get it on the record, all facetiousness aside?
Mr Fletcher: Let me hear what that motion was.
Mr Eddy: To approve the recommendation of Mr Kaye.
The Chair: The motion is that on page 4, under "Statutory Authority" relating to Ontario regulation 549/91 under the Environmental Assessment Act, that be deleted from the report.
Are you in favour of the deletion? All those in favour? Any dissenters? No.
Mr Fletcher: Yes, one.
The Chair: One.
Mr Hansen: No, there's none.
The Chair: It is carried, whatever the case.
Mr Kaye: The second regulation mentioned in the report was made under the Pension Benefits Act. It deals with the criteria which must be met before the Pension Commission of Ontario can consent to the payment out of surplus moneys to an employer. Under the regulation, all beneficiaries and plan members must consent to the payment terms.
What the draft report says near the bottom of page 5, the second-last paragraph, is, "It appears to the committee as if the individuals referred to in subsections 10(2) and (3) are carrying out the regulation-making function, rather than the Lieutenant Governor in Council, which would be in contravention of guideline (ii)."
The ministry response to the perceived problem with the regulation says that subsections 10(2) and (3) are preconditions to the pension commission granting its consent to the payment of surplus to an employer, but that there are other preconditions as well. In other words, member consent in and of itself does not permit payment of surplus funds to an employer. Thus the members would not be carrying out the regulation-making function.
The ministry response goes on that perhaps for clarity, the words "written agreement" should've been used in these subsections instead of "consent."
The Chair: Any comments on the part of the members? I put forward that you have to do more than nod your heads. In this case, you're going to have to agree that "written agreement" should be there rather than "consent" or in fact agree with the ministry.
Mr Mills: Agreed. Is that what you want?
The Chair: That would be good. That would be moving in the right direction.
Mr Kaye: But members would also be asked to agree with the statement that it appears as if the beneficiaries and pension plan members rather than the Lieutenant Governor in Council are carrying out the regulation-making function. Do members want to agree to that as well?
Mr Mills: Yes, I do.
Interjections.
The Chair: I believe we have achieved a consensus.
Mr Kaye: The final regulation mentioned in the report is just a technical matter. It's a regulation under the Game and Fish Act. There was an inconsistency between the French and English versions of subsection 15(4) of regulation 740/92.
The legal services branch of the Ministry of Natural Resources acknowledged that there was a problem with the French version and that an amendment would be prepared. Since Jacinth Herbert drafted this report, the amendment has been published in the Ontario Gazette so the problem has been corrected by the ministry.
Do members wish me to add that to the description of the regulation or do they wish the regulation completely deleted from the report now that the correction has been made?
Mr Mills: It's difficult for me to sort of note a French error.
The Chair: If the ministry has complied, do you feel it should be in here or just a note to say that the ministry has complied?
Mr Mills: I think just a note.
Mr Ruprecht: Why not just delete it? That would take care of the whole problem. Why do you want to go through another step?
The Chair: We have one deletion and one for a note. Any other comments at this point?
Mr Kaye: I should mention that normally when the research service discovers an apparent violation of a guideline and the ministry acknowledges that there is a problem and the ministry has undertaken to address the problem and change the regulation, we do put that in the report.
The reason I asked if it should be included is that at the top of page 4 there's a reference to the fact that a number of regulations which would've been the subject of this report were corrected within the three-year period, so just for the purposes of this particular report. In some other cases, when regulations were corrected, they haven't been included in the report. In this case, because the regulation was inserted in the draft report and brought before the committee in December, does the committee in these circumstances feel it should still be in there with an acknowledgment that the ministry has corrected it?
Mr Mills: I still say there should be a note. I can think of back the other week; there was some nuclear problem in a plant in Detroit, and though nothing happened, the public down there said, "Well, we should've known that nothing happened." I'll use that. People like to know that it's been corrected, I think.
Mr Fletcher: I agree.
Mr Eddy: Agreed.
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The Chair: The recommendation is that there will be a note appended to the bottom of page 6 to indicate that the ministry has complied by making the appropriate change. There seems to be a consensus on that point.
Mr Mills: And that's probably good for democracy.
The Chair: We have come to the point where we are into the appendices, which means the bulk of the report has been dealt with, so I would entertain a motion from one of the members that the report is approved and then report it to the House. Agreed? Agreed.
I would entertain the additional motion of allowing for the printing of this report, entitled the Second Report 1994. Agreed? No opposition, so it's carried.
Mr Kaye: Just to get back to an issue which I mentioned earlier on, the guideline on penalties: Would the committee be able to give the research service some direction as to whether we should interpret the guideline in terms of an absolute prohibition against the setting of penalties by regulation, or a qualified prohibition so that if the act says a regulation can impose a penalty, it's okay?
The Chair: Would anyone like to speak to that?
Mr Ruprecht: We are discussing right now, and we can't come to a solution.
The Chair: I have a feeling that's actually on another topic entirely, but we won't put you to the test. Mr Eddy?
Mr Eddy: Sorry, I was involved in reading this item they were -- would the Chair mind repeating?
The Chair: Mr Kaye has put forward this request for clarification: "Committee's Guideline on Penalties: Absolute or Qualified Prohibition?" He's given us a three-page document as well as giving us some comments previously to highlight the concerns his office is having to deal with. He is asking, are we going to give direction to his office that there should be a complete prohibition on any penalties being assigned from the regulations, or should it be as on page 3 of his report, qualified prohibition?
Mr Fletcher: Qualified.
Mr Mills: I tend to agree with that. To me, that makes abundantly good common sense, not to take up on the new phrase that is criss-crossing the province.
Mr Eddy: I prefer to see the absolute, but realizing that the rules could be changed by the government of the day to go the other route anyway, and realizing that if the bill has that in it, it can be debated in the House, I would agree to go with the qualified.
The Chair: Any further discussion? Seeing none, I would say that the consensus reached by this committee is that the qualified prohibition, as outlined in your report, is the direction we would like to see you take. Are there any other issues you'd like to bring before us at this time?
Mr Kaye: That covers the issues I wished to raise.
Mr Fenson: Like all bodies in the public service, the legislative library, particularly legislative research service, are feeling the result of budget cuts and, frankly, we are short of printed legal resources. I raised with the clerk and welcome this opportunity to raise with the committee the question of whether the committee would consider providing legislative research service, for the use of whichever lawyer is dealing with regulations, a set of the revised statutes 1990 and the revised regulations 1990.
We have asked for it within the library, and they can't give it to us. We have one set, but it's in very heavy use in our office. There are five lawyers doing different things and six or seven other research officers using it. If the committee could find it in its budget and its heart to provide us with a set, it would very much help.
The Chair: Mr Mills, you were fast on the mark there.
Mr Mills: Before committing myself to such a move, are we talking about one volume of books and the cost of those?
Mr Fenson: It's one set. The revised statutes are, I think, $595 and the revised regulations are $495.
Mr Mills: So we're looking at $1,000.
Mr Fenson: About $1,100 or $1,200, I would say.
Mr Fletcher: You can't get this now because of cuts that have already been made to your department, so you're asking us to circumvent the Finance minister.
Mr Fenson: Well, we're asking you to consider whether your budget allows you to provide us with this tool for the work we do for you. At one time, the committee hired outside counsel and paid for it.
The Chair: I think there is a consensus among the members that this is something we should --
Mr Fletcher: We don't have a consensus.
The Chair: Okay, but I would like to turn at this point to the clerk to give the members an idea of what is in our budget, if Ms Grannum could give us that detail.
Clerk of the Committee (Ms Tonia Grannum): I can't be specific because I can't remember the figures exactly, but we do have a line item for purchase of books and texts, so it would be able to be covered under there, if they'd like.
Mr Fletcher: I'd like to see a copy of our budget before we make a decision on something like this.
The Chair: That's why I thought it was appropriate that we had at least a report on the situation.
Mr Mills: Not wishing to carry on at length, I would think the onus on the committee and on the committee members is to have the resources available to help in the decision-making process. Realizing that these books are key, and realizing that you haven't, as in the old days, resources for outside legal opinions, if our budget would so allow, without crippling anybody, I think it makes absolute common sense. You can't continue to ask for advice if the people haven't got the tools to give that advice properly. That's my own personal opinion. The Treasurer might tread on my chest -- or the Finance minister, we call him now -- but he's not here and I am.
The Chair: The clerk has offered to get a copy of the budget as it stands, as we speak. Are members basically in concurrence with that? The members are, so she's undertaking to do that.
Mr Eddy: My question is simply, is there enough in that allocation to do that? I'm certainly in favour of it. I can see it being a much more efficient use of time. The set you have must be a little battle-worn.
Mr Fenson: The bindings are shaken, as they say in the used-book trade, very heavily used.
Mr Eddy: Seeing that Mr Mills has joined the Common Sense Revolution, I'll certainly support him.
Mr Mills: I've read the document; I'm not joining that revolution.
The Chair: We could have a real political discussion on that.
Actually, as a committee, we have been very careful in our expenditures. Our budget rarely gets used entirely in any given year.
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Mr Fletcher: It doesn't mean we have to use it.
The Chair: No. We definitely give money back.
Mr Mills: It's a question of prudent use, commonsense use in spending the budget. This isn't just spending the budget; it's needed.
Mr Fletcher: I'm going back to my old trustee days. Perhaps with some jigging around in your department, you could find the extra money to do it.
Mr Mills: They have looked.
Mr Fletcher: How do you know? That's what we used to do when I was a trustee. We'd look around at the different departments and how they operate, and perhaps they could find the money before we had to go back to the well. That's my only concern. If there's another way of doing it, I'd much rather see an innovative way of doing things.
Mr Mills: I see this request as the last resort.
The Chair: Let me turn it over to the clerk. She has more explanations to give.
Clerk of the Committee: We do have a new budgetary process, and now the committees are going through a global budget. The budget we had last fiscal year had separate line items, but I've just checked, and we don't have it in our budget.
Mr Fletcher: So that would be something we would have to make a motion about, to spend the money on the set of books. Could we do that as a committee?
Clerk of the Committee: I've been told we don't have it in our budget, that we wouldn't be able to receive the approval. Because it's now drawing from a global budget, I'd have to go through Debbie Deller.
Mr Fletcher: As a committee we cannot say, "I recommend that we spend x amount of money."
Mr Mills: Notwithstanding the fact that you've told us there's no line in the budget, is there some process whereby we could carry this forward to some other means by which this could be considered? In my opinion, the effectiveness of this committee is being somewhat limited through this. That's my concern, that we are not able to get the service we need because of the lack of $1,000. To me, considering all the stuff that comes through this committee, it's really rather bizarre that we can't do that.
The Chair: I would put forward this thought, and obviously others can agree or disagree. We could make a motion to the effect that the committee understands the concern of the researchers and would like to explore ways in which this could be resolved. That does leave it somewhat open. We might then ask, within the confines of this building, how we could find those moneys to buy this particular, in library reference terms, tool, so we could see them get their work done. Is that something with which the members could concur?
Mr Mills: That's the sort of motion I'd like to make.
Mr Fletcher: I want to hear the motion.
The Chair: The motion was that we understand the concern of the researchers and that we would like to explore ways in which we could resolve that particular issue, ie, the purchase of those volumes.
Mr Fletcher: Who made that motion?
Mr Mills: I'm going to.
Mr Fletcher: I want an explanation of that motion.
Mr Mills: There's an old English adage which I think will cover the thing very succinctly, that you can be penny wise and pound foolish.
Mr Fletcher: I want to know what "explore" means. I don't want some English saying. I want to know what it means.
Mr Mills: Okay, you don't want an English saying.
Mr Fletcher: What does "explore" mean?
Mr Mills: Well, to see if we can achieve this somehow. Maybe there's some recommendation that can go to some other body. I find it absolutely nuts that we sit here, that we have a committee --
Mr Fletcher: So we're sending a motion somewhere and we don't know where.
Mr Mills: No, the clerk is going to address this to the proper avenue. It seems to me barmy that here we have legislative research people who do the bulk of the work for this committee telling us they can't really operate at peak efficiency without the use of these books, and if we sit here in our wisdom and say, "Well, that's tough; these are recessionary times," I don't think that's very progressive. You've got to say, "Let's see what we can do about this." Then when we see and when the clerk has seen what we can do about it, and if nothing can be done, at least we have tried. I think we should try.
Mr Fletcher: I'm not debating that they need what they need. My point is where the money is coming from.
Mr Mills: Tonia is going to find that out and come. back to us and say, "We've made some inquiries and some people feel" --
Mr Fletcher: When I say "explore," does that include how they function within their department, whether there could be cost-cutting? That's what "explore" means. Are you going to explore that?
Mr Mills: In all due respect, when Mr Kaye and Mr Fenson have appeared before this committee and asked us as a committee to look at this, I would presume they've explored it and explored it to the end of time, and have said, "We can't do it unless this committee helps in some way." I would presume they wouldn't come here to make this request if they hadn't gone the extra mile in their own budget to get this.
Mr Fletcher: Well, I don't presume anything.
Mr Fenson: The way we dealt with this problem while we were still using the revised statutes and revised regulations 1980, with supplements, was that as the committee took on the task of doing regulations in the late 1980s, since that was towards the end of the decade, there were more copies which offices were giving away, and we managed to collect a set, as sort of garbage from legislative counsel. It's too early in the decade for any free sets to be floating around now. We've tried. We've asked the library informally if they could act as a clearinghouse for members or offices who might be willing to give one. They've tried, but nothing's come up.
As far as the budget goes, they've been adamant, and of course I'm not in control of that.
Mr Fletcher: Could I ask Tonia, how far are you going to explore? That's all I want to know.
Clerk of the Committee: My only parameters would be to find out if there's a possible way through our global budget to deal with the request from the committee. That's all I can do.
Mr Fletcher: And you'll bring that back to us.
Clerk of the Committee: Yes.
The Chair: The other option would be to appeal through one of the offices whether there's a set that's not being used very much.
Mr Mills: I've got books on all the walls and I don't know where they come from, nor do I open them.
Mr Fletcher: Maybe he has a set.
Mr Eddy: For the statutes, but the regulations are much harder to get hold of, and you need the regs.
The Chair: There's no problem in trying to be somewhat creative about this. It doesn't have to be one particular way. It doesn't necessarily even require spending money, other than maybe sending notices around to offices: "If you're not using your statutes overly much, would you consider giving them to a worthy cause?" These are things that have been known to happen in the past.
Mr Eddy: You might get two or three sets.
The Chair: You never know. We may not even have to spend $1,000. It may not even mean an expenditure.
Interjections.
Mr Fletcher: Here's a suggestion, and Hansard has said that's a good idea too, that we look at other ways. If we cut out the coffee in here and the juices and things, perhaps we could save enough money to buy some books. What are we, a coffee shop around here?
Mr Mills: Well, it's nice.
Mr Fletcher: Oh, it's nice.
Mr Eddy: I don't think we even pay for it; it doesn't come out of our budget.
The Chair: It does. I think members should note that we really are not one of the high-spending committees of the Legislature. If anything, we're probably the lowest-spending of all of them. This year our budget will be somewhat higher because of the publication of the reports, but that's accounted for; it's been in the budget. Where we normally have had about $20,000 set aside, this year we'll be spending somewhere in the neighbourhood of $13,000. Since it's handled globally, we're not going to have that $7,000 to play with. Some other committee, if it travels, will probably use those moneys.
Mr Fletcher: It all comes out of the cost of running the government.
Mr Ruprecht: You're saying we can only travel to Niagara Falls?
The Chair: We could go to your riding; I don't care. If you're treating us to lunch, I've got no problem.
Mr Mills: Madam Chair, we're the direct descendants of Scrooge: the cheapest committee in town.
The Chair: That's right, and we like to at least make sure we keep our financial record in such matters, so we'll be creative about trying to resolve this particular problem.
Mr Fletcher: Motion to adjourn.
The Chair: Thank you, Mr Fletcher. The motion to adjourn has been made. That's not open for discussion, so I will call the regular meeting of the standing committee on regulations and private bills adjourned for today.
The committee adjourned at 1131.