STANDING COMMITTEE ON
REGULATIONS AND PRIVATE BILLS

FIRST REPORT 2015

1^st Session, 41^st Parliament
64 Elizabeth II

ISSN 0835-037X (Print)
ISSN 2369-419X [English] (PDF and HTML)
ISSN 2369-4203 [French] (PDF and HTML)

ISBN 978-1-4606-6193-2 (Print)
ISBN 978-1-4606-6195-6 [English] (PDF)
ISBN 978-1-4606-6197-0 [French] (PDF)
ISBN 978-1-4606-6194-9 [English] (HTML)
ISBN 978-1-4606-6196-3 [French] (HTML)
 

The Honourable Dave Levac, MPP

Speaker of the Legislative Assembly

 

 

Sir,

Your Standing Committee on Regulations and Private Bills has the honour to present its Report entitled "First Report 2015" and commends it to the House.

 

 

 

 

Indira Naidoo-Harris, MPP
Chair of the Committee

Queen's Park
March 2015

STANDING COMMITTEE ON REGULATIONS AND PRIVATE BILLS

Comité permanent des RÈGLEMENTS ET DES PROJETS DE LOI D'INTéRÊT PRIVé

Toronto, Ontario M7A 1A2

 

STANDING COMMITTEE ON REGULATIONS AND PRIVATE BILLS

MEMBERSHIP LIST

 

1^st Session, 41^th Parliament
 

Indira Naidoo-Harris

Chair

 

Kathryn McGarry

Vice-Chair

 

 

vALERIE qUIOC LIM

Clerk of the Committee

 

tamara hauerstock

Research Officer

Contents

Acknowledgements  ii

Introduction  1

Statistics: 1994 – 2013  1

Number of Regulations Made  1

New, Revoking and Amending Regulations  2

Regulations Reported  4

Ministry of Education  4

O. Reg. 288/13 amending O. Reg. 221/11 (Extended Day and
Third Party Programs) made under the Education Act 4

Ministry of Government and Consumer Services  6

O. Reg. 355/13 amending O. Reg. 430/11 (Forms) made under the Land Titles Act 6

Ministry of Health and Long-Term Care  6

O. Reg. 352/13 amending O. Reg. 264/07 (General) made under
the Local Health System Integration Act, 2006  6

O. Reg. 367/13 amending O. Reg. 331/11, which amends 329/04 (General) made under the Personal Health Information Protection Act, 2004  7

Ministry of Transportation  8

O. Reg. 169/13 amending Reg. 612 of R.R.O. 1990 (School Buses) made under the Highway Traffic Act 8

Update on Responses to Regulations Previously Reported by the Standing Committee  10

FIRST Report 2014  (Regulations Filed in 2012) 10

Appendix A  13

Section 33 of the Legislation Act, 2006  13

Appendix B  14

Standing Order 108(i) 14

Appendix C  15

Committee's Process for the Review of Regulations  15

Appendix D  16

List of Acts Under Whose Authority Ten or More Regulations
Were Filed in 2013  16

Appendix E  17

List of Ministries and Offices and the Number of Regulations
Filed in 2013 for Which Each Was Responsible  17

 

 

Acknowledgements

The Committee wishes to express its appreciation to all of the legislative staff who assisted us in our work.  In particular, we wish to thank

· Valerie Quioc Lim, the Committee's Clerk, who performed the procedural and administrative duties necessary for the carrying out of our regulations mandate; and

· Jim Elson, Erin Fowler, Tamara Hauerstock, Andrew McNaught and Heather Webb of the Legislative Research Service who performed the examination of the 368 regulations covered in this report.  Ms. Hauerstock prepared a draft report for the Committee's consideration; Mr. McNaught oversaw the regulations review.

Introduction

The Committee presents this report on regulations filed under Ontario statutes during the period January to December 2013, in accordance with its terms of reference, as set out in the Legislation Act, 2006 and the Standing Orders of the Legislative Assembly.

Section 33 of the Act (reproduced in Appendix A) requires the Committee to examine the regulations made under Ontario statutes, and provides that all regulations stand permanently referred to the Committee.  In conducting its examination, the Committee is directed to consider "the scope and method of the exercise of delegated legislative power," but not "the merits of the policy or objectives to be effected by the regulations or enabling Acts."  The Committee is required, from time to time, to report its observations, opinions and recommendations to the Assembly.

Standing Order 108(i) (reproduced in Appendix B) sets out nine guidelines the Committee is to apply when conducting its review.  Guideline 2, for example, provides that there should be statutory authority to make a regulation.  The Standing Order also stipulates that the Committee may not report a regulation to the Assembly without first affording the ministry or agency concerned "an opportunity to furnish orally or in writing to the Committee such explanation as the ministry or agency sees fit."

The Committee's process for reviewing regulations and preparing its Report is set out in Appendix C.

Statistics: 1994 – 2013

Number of Regulations Made

The graph on the following page indicates the number of regulations filed with the Registrar of Regulations from 1994 to 2013.[1]  Over this 20-year period, the average number filed each year was 553.  However, this average is somewhat skewed by the high number of regulations filed in the early 1990s, when regulation-making powers were exercised under 22 new health profession Acts.  Since 1995, the average number of regulations filed annually is 539.[2]

 

Total Regulations Filed: 1994 – 2013

The 368 regulations filed in 2013 were made under the authority of 108 Acts under the administration of 21 ministries and offices.[3]  Seven Acts generated at least 10 regulations each; these represented 40% of all regulations filed in 2013.

Appendix D lists the Acts under which at least 10 regulations were made in 2013.  Appendix E sets out the ministries responsible for regulations made in 2013 and the number falling under each ministry.

New, Revoking and Amending Regulations

Generally speaking, a regulation falls into one of the following three categories:

· New

· Amending: An amending regulation adds, removes or substitutes text in a pre-existing or "parent" regulation.

· Revoking: A revoking regulation revokes an existing regulation.[4]

 

 

The tables below show the number of new, revoking and amending regulations made in the years 2004 to 2013, and the proportion they represent of all regulations made in a particular year. [5]

New Regulations: 2004 – 2013

 

Revoking Regulations: 2004 – 2013

 

Amending Regulations: 2004 – 2013

 

 

Of the 38 new regulations made in 2013, one was made under a statute with no previous regulations.

New Regulations Made in 2013
Under Statutes with No Previous Regulations

 

Regulations Reported

Following our initial review of the 368 regulations filed in 2013, we wrote to 9 ministries to inquire about 13 regulations.  After considering the responses to our inquiries, we have decided to report 5 regulations under one Committee guideline:

· Guideline 2: Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties.

Regulations are reported under the Ministry responsible for the regulation being reported.  It should be noted that our comments and recommendations relate to specific provisions of a regulation, rather than to the regulation as a whole.

Ministry of Education

O. Reg. 288/13 amending O. Reg. 221/11 (Extended Day and Third Party Programs) made under the Education Act

Issue The regulation was made by the Minister of Education.  Should it have been made by the Lieutenant Governor in Council?

 

Under Part IX.1 of the Education Act, the authority to make regulations dealing with extended day and third-party programs was granted to the Lieutenant Governor in Council.  O. Reg. 221/11 (the parent regulation) was made under this authority by the Lieutenant Governor in Council; however, O. Reg. 288/13 (the amending regulation) was made by the Minister.

Counsel for the Ministry of Education explained that O. Reg. 288/13 parallels, and was made at the same time as, O. Reg. 289/113.  The latter regulation was made under a section of the Education Act that authorizes the Minister to make regulations, subject to the approval of the Lieutenant Governor in Council.  The Ministry acknowledged that, due to an oversight when making the two regulations, O. Reg. 288/13 was not made by the correct authority. Nonetheless, the Ministry further noted that

O. Reg. 288/13 still required and did in fact receive the approval of the Lieutenant Governor in Council in the same manner as if it had been made directly by the Lieutenant Governor in Council.  That is, the Lieutenant Governor in Council approved the regulation after it was approved by the Minister of Education.

In our view, this interpretation is inconsistent with the Act, which states that the regulation must be "made" by the Lieutenant Governor in Council, not approved by it.  The Committee has addressed a similar issue (where regulations were made by the Lieutenant Governor in Council instead of by the relevant Minister) in both its April 2011 (with respect to a regulation under the Highway Traffic Act) and April 2012 (with respect to a regulation under the Apprenticeship and Certification Act, 1998) reports.[6]

Representatives of the Ministry appeared before the Committee and noted that the Ministry will make every effort to ensure that this type of oversight does not recur.  They also indicated that the bulk of O. Reg. 288/13 has been revoked; only section 1 of O. Reg. 288/13 (which amended section 1 of the parent regulation, O. Reg. 221/11) remains in force.

 

 

Ministry of Government and Consumer Services

O. Reg. 355/13 amending O. Reg. 430/11 (Forms) made under the Land Titles Act

Issue The regulation requires an application to be submitted in the form required by the Director of Titles or the land registrar.  Should the form have been prescribed in a regulation by the Director of Titles?

 

Subsection 23(1) of the Land Titles Act provides that an application for an inhibiting order must be made "in the prescribed manner."  Subsection 163(2) authorizes the Director of Titles to make regulations prescribing forms and providing for their use. 

O. Reg. 430/11, as amended by O. Reg. 355/13, provides that an application for an inhibiting order "shall be in the form that the Director of Titles or the land registrar, as the case may be, requires." 

We asked the Ministry whether the regulation ought to have prescribed a form.

The Ministry responded that since the form is administrative (as opposed to legislative) in nature, it need not be prescribed in the regulation.
We note that an unproclaimed provision of the Land Titles Act will, if proclaimed, repeal the requirement to make an application "in the prescribed manner," and replace it with a requirement to make the application "in the manner required by the court or the Director."  The unproclaimed provision will, if proclaimed, more clearly authorize the Director to make forms outside of a regulation.  The Committee is not making a recommendation with respect to this regulation.

Ministry of Health and Long-Term Care

O. Reg. 352/13 amending O. Reg. 264/07 (General) made under the Local Health System Integration Act, 2006

Issue Did the Minister publish notice of O. Reg. 352/13 in The Ontario Gazette prior to it being made, as required by the Local Health System Integration Act, 2006?

 

In response to our inquiry, the Ministry acknowledged that notice of the proposed regulation (O. Reg. 352/13) was not published in The Ontario Gazette, but said that notice was given through the Ontario Regulatory Registry and the Ministry's website, and that comments were received and considered as required by the Act.  The Ministry further stated that, "the regulation was made and is presumed to be valid until it is successfully challenged".

Nonetheless, the Ministry also said that, "In light of this oversight, we will be following up on procedures within the ministry of ensuring the required notice is published in future."

Given the Ministry's commitment to ensure that required notice is published in the future, the Committee is not making a recommendation with respect to this regulation.

O. Reg. 367/13 amending O. Reg. 331/11, which amends 329/04 (General) made under the Personal Health Information Protection Act, 2004

Issue Did the Minister give notice of the decision not to consult the public about a pending regulation as soon as reasonably possible, as required by the Personal Health Information Protection Act, 2004?

 

As a general rule, the Personal Health Information Protection Act, 2004 (PHIPA) requires public consultation before a regulation is made.  In certain circumstances, however, the Minister may decide that the normal public consultation process should not apply. Notice of that decision must be given to the public and the Information and Privacy Commissioner "as soon as is reasonably possible after making the decision."

O. Reg. 367/13 was made on November 27, 2013 and filed on December 23, 2013.  Notice of the decision not to consult was published in The Ontario Gazette on December 21, 2013. 

We asked the Ministry whether PHIPA's notice requirements had been met.  The Ministry responded as follows:

We are advised that notice of the Minister's decision not to consult was provided to the Commissioner on December 12, 2013 and sent on that date to be published in The Ontario Gazette. . . . In our view, considering the approvals process within the ministry, these dates fall within the scope of the phrase 'as soon as is reasonably possible'. . . .

The Committee does not agree with the Ministry's interpretation.  Since the Minister's decision not to consult the public must be made before making a regulation, the requirement that notice be given "as soon as is reasonably possible after making the decision" leads us to expect that notice should be given prior to making the regulation (except where the regulation is urgent).  In this case, notice of the decision not to consult was given on December 12, 2013, two weeks after the regulation was made. 

 

Without making a specific recommendation, the Committee would like to point out that the decision to exempt a regulation from public consultation is a serious matter.  In these circumstances, procedural requirements should be scrupulously observed.

Ministry of Transportation

O. Reg. 169/13 amending Reg. 612 of R.R.O. 1990 (School Buses) made under the Highway Traffic Act

Issue Does the regulation comply with the requirement of the Legislation Act, 2006 that when a regulation refers to a document, the reference is to the document as it read when the regulation was made?

 

Section 62 of the Legislation Act, 2006 provides that the power to make a regulation may be exercised by incorporating an existing document by reference. Subsection 62(3) specifies that the reference to the document is a reference to it as it read when the provision containing the reference was most recently enacted, made or amended.  This requirement applies to every Act and regulation unless a contrary intention appears or its application would give a term or provision a meaning that is inconsistent with the overall legislative context.

O. Reg. 169/13, which deals with standards for school buses, incorporates a standard created by the Canadian Standards Association as well as any subsequent versions of it.  We expressed our concern to the Ministry of Transportation that the incorporation of subsequent versions of the standard (known as "rolling incorporation") does not appear to comply with the Legislation Act, 2006.

The Ministry replied that

if the regulation deals with scientific, technical or detailed administrative matters and it appears from the authorizing statute that the Legislature would have expected the regulation to deal with such matters, it is very likely that the Legislature intended to permit rolling incorporation of documents of a scientific, technical or detailed administrative nature, especially if the documents are prepared by a respected expert body independent of the regulation-making body, such as the Canadian Standards Association. . . . [O]ur view is that the rolling incorporation of the CSA D250 standards is something the Legislature would have intended to authorize given that it authorized the making of regulations to prescribe the type, design and colour of school buses as well as the power to require the use of any equipment on or in school buses and to prescribe the standards and specifications of the equipment.

In our view, an intention in favour of rolling incorporation should be unequivocal.  For example, we note that the Highway Traffic Act expressly authorizes rolling incorporation in both s. 41.2(19) and s. 111(3.3).  These sections provide for regulations that incorporate documents by reference as amended "from time to time."

A representative of the Ministry appeared before the Committee and indicated that the Ministry's view is that rolling incorporation is impliedly permitted given the nature of the Act, the subject matter and the Canadian Standards Association as the standard-maker.

The Committee has taken note of this issue but makes no recommendation at this time.

 

Update on Responses to Regulations Previously Reported by the Standing Committee

FIRST Report 2014
(Regulations Filed in 2012)

O. Reg. 69/12 amending O. Reg. 260/97 (General) made under the Grains Act

Ministry of Agriculture, Food and Rural Affairs

Potential Violation of Standing Order:	(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties.
Recommendation made by Committee:	The Committee was of the view that the Grains Act does not authorize the making of a regulation deeming payment to have been made for the purposes of the definition of "stored" in the Act.  The Committee recommended that the Ministry take steps to ensure that s. 6(6)(b) of O. Reg. 260/97 is revoked or amended to conform with the regulation-making authority in the Grains Act.
Current status:	As of November 23, 2014, O. Reg. 260/97 has not been amended.

 

O. Reg. 278/12 (Compensation) made under the Animal Health Act, 2009

Ministry of Agriculture, Food and Rural Affairs

Potential Violation of Standing Order:	(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties.
Recommendation made by Committee:	The Committee was of the view that matters prescribed for the purposes of clause 26(4)(e) of the Animal Health Act, 2009 should not include matters relating to the process of making a claim for compensation or the manner in which a claim is made.  The Committee recommended that the Ministry take steps to ensure that s. 8 of O. Reg. 278/12 be amended to remove the reference to s. 26(4)(e) of the Act.
Current status:	As of November 23, 2014, O. Reg. 278/12 has not been amended.

 

 

O. Reg. 47/12 amending Regulation 823 of R.R.O. 1990 (General) made under the Municipal Freedom of Information and Protection of Privacy Act

Ministry of Government and Consumer Services

Potential Violation of Standing Order:	(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties.
Recommendation made by Committee:	The Committee recommended that the Ministry amend s. 11 of Regulation 823 to remove: (1) the requirement that a request for access to a record specify that it is a request made under the Act and (2) the requirement that a request for correction of personal information be in writing and specify that it is a request made under the Act.
Current status:	As of November 23, 2014, Regulation 823 has not been amended.

 

O. Reg. 149/12 amending Regulation 833 of R.R.O. 1990 (Control of Exposure to Biological or Chemical Agents) made under the Occupational Health and Safety Act

Ministry of Labour

Potential Violation of Standing Order:	(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties.
Recommendation made by Committee:	The Committee was concerned that a third-party document incorporated by reference into Regulation 833 was not readily available to the public as required by the Legislation Act, 2006.  The Committee recommended that the Ministry of Labour take steps to ensure that Regulation 833 complies with the requirements of the Legislation Act, 2006.
Current status:	As of November 23, 2014, Regulation 833 has not been amended.

 

 

O. Reg. 308/12 (Exploration Plans and Exploration Permits) made under the Mining Act

Ministry of Northern Development and Mines

Potential Violation of Standing Order:	(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties.
Recommendation made by Committee:	Issue 1: The Committee was concerned that the regulation improperly grants the Director discretion to decide whether to require an exploration permit in certain circumstances.  The Committee recommended that the Ministry amend O. Reg. 308/12 to make s. 18(1) conform to the requirements of s. 78.2(3) of the Mining Act. Issue 2: The Committee was concerned that the regulation inappropriately provides that a Director may waive any of the standard terms and conditions.  The Committee recommended that the Ministry take steps to ensure that the prescription of standard terms and conditions in s. 17 of O. Reg. 308/12 comply with Committee Guideline 2.
Current status:	As of November 23, 2014, O. Reg. 308/12 has not been amended.

 

O. Reg. 321/12 (Classes of Members and Registration) made under the Ontario College of Trades and Apprenticeship Act, 2009

Ministry of Training, Colleges and Universities

Potential Violation of Standing Order:	(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties. (iii) Regulations should be expressed in precise and unambiguous language.
Recommendation made by Committee:	Issue 1: The Committee was concerned that O. Reg. 321/12 deems journeyperson candidates to be apprentices for the purpose of the journeyperson to apprenticeship ratio without apparent statutory authority.  The Committee recommended that the Ministry take steps to ensure that the deeming provision is authorized by the Ontario College of Trades and Apprenticeship Act, 2009. Issue 2: The Committee was concerned that O. Reg. 321/12 inappropriately provides that an applicant need not meet certain registration requirements where he or she provides "proof that is satisfactory to the Registrar" that he or she has qualifications and experience in the trade that are equivalent to the requirements.  The Committee recommended that the Ministry take steps to ensure that the provisions of O. Reg. 321/12 dealing with the determination of equivalent qualifications and experience are made pursuant to statutory authority.
Current status:	As of November 23, 2014, O. Reg. 321/12 has not been amended.

 

Appendix A

Section 33 of the Legislation Act, 2006

33(1) At the commencement of each session of the Legislature, a standing committee of the Assembly shall be appointed under this section with authority to sit during the session.

(2) Every regulation stands permanently referred to the standing committee for the purposes of subsection (3).

(3) The standing committee shall examine the regulations with particular reference to the scope and method of the exercise of delegated legislative power but without reference to the merits of the policy or objectives to be effected by the regulations or enabling Acts, and shall deal with such other matters as are referred to it by the Assembly.

(4) The standing committee may examine any member of the Executive Council or any public servant designated by the member respecting any regulation made under an Act that is under his or her administration.

(5) The standing committee shall, from time to time, report to the Assembly its observations, opinions and recommendations.

 

Appendix B

Standing Order 108(i)

108      Within the first 10 Sessional days following the commencement of a Parliament, the membership of the following Standing Committees shall be appointed, on motion with notice, for the duration of the Parliament:

i. Standing Committee on Regulations and Private Bills . . . to be the Committee provided for by section 33 of Part III (Regulations) of the Legislation Act, 2006, and having the terms of reference as set out in that section, namely: to be the Committee to which all regulations stand permanently referred; and to examine the regulations with particular reference to the scope and method of the exercise of delegated legislative power without reference to the merits of the policy or objectives to be effected by the regulations or enabling statutes, but in so doing regard shall be had to the following guidelines:

(i) Regulations should not contain provisions initiating new policy, but should be confined to details to give effect to the policy established by the statute;

(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties;

(iii) Regulations should be expressed in precise and unambiguous language;

(iv) Regulations should not have retrospective effect unless clearly authorized by statute;

(v) Regulations should not exclude the jurisdiction of the courts;

(vi) Regulations should not impose a fine, imprisonment or other penalty;

(vii) Regulations should not shift the onus of proof of innocence to a person accused of an offence;

(viii) Regulations should not impose anything in the way of a tax (as distinct from fixing the amount of a licence fee, or the like); and

(ix) General powers should not be used to establish a judicial tribunal or an administrative tribunal,

and, the Committee shall from time to time report to the House its observations, opinions and recommendations as required by section 33 of Part III (Regulations) of the Legislation Act, 2006, but before drawing the attention of the House to a regulation or other statutory instrument the Committee shall afford the ministry or agency concerned an opportunity to furnish orally or in writing to the Committee such explanation as the ministry or agency thinks fit.

 

Appendix C

Committee's Process for the Review of Regulations

 

Appendix D

List of Acts Under Whose Authority Ten or More Regulations Were Filed in 2013

 

 

Appendix E

List of Ministries and Offices and the Number of Regulations Filed in 2013 for Which Each Was Responsible