Legislative Assembly of Ontario

Contents

Acknowledgements  ii

Scope of this Report and the Committee’s Mandate  1

Statistics: 1999 – 2018  1

Number of Regulations Made  1

New, Revoking and Amending Regulations  2

Regulations Reported   6

Ministry of the Attorney General 6

Ministry of Education   7

Update on Responses to Previously Reported Regulations  8

First Report 2018  (Regulations Filed in the First Six Months
of 2017) 8

Second Report 2018  (Regulations Filed in the Second Six
Months of 2017) 9

First Report 2019  (Regulations Filed in the First Six Months
of 2018) 9

Divisional Court Decision in Greenpeace Canada v. Minister of the Environment (Ontario) 11

Background  11

Court Decision   11

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

Acts Under Whose Authority Ten or More Regulations Were
Filed in 2018  16

Appendix E   17

Ministries and Offices and the Number of Regulations Filed
in 2018 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

· Eric Rennie, the Committee’s Clerk, who performed the procedural and administrative duties necessary for the carrying out of our regulations mandate; and

· Tamara Hauerstock and Andrew McNaught of the Legislative Research Service. Ms. Hauerstock performed the examination of the regulations covered in this report, acted as Counsel to the Committee and prepared a draft report for the Committee’s consideration.  Mr. McNaught oversaw the regulations review.

Scope of this Report and the Committee’s Mandate

The Committee presents this report on regulations filed under Ontario statutes during the period July to December 2018 (O. Regs. 386/18 – 537/18), in accordance with its terms of reference, as set out in the Legislation Act, 2006 and the Standing Orders of the Legislative Assembly.  In March 2019, the Committee reported on the regulations filed during the period January – June 2018. 

Section 33 of the Act (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) (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.”

This report was adopted under the January 2019 edition of the Standing Orders of the Legislative Assembly. Standing Order 108 referenced within has subsequently been renumbered to Standing Order 111 in the February 2020 edition.

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

Statistics: 1999 – 2018

Number of Regulations Made

The graph on the following page indicates the number of regulations filed with the Registrar of Regulations from 1999 to 2018.^[1]  Over this 20-year period, the average number filed each year was 512.^[2]

Total Regulations Filed: 1999 – 2018

The 537 regulations filed in 2018 were made under the authority of 143 Acts under the administration of 20 ministries and offices.^[3]  Twelve Acts generated at least 10 regulations each; these represented 41% of all regulations filed in 2018.

Appendix D lists the Acts under which at least 10 regulations were made in 2018.  Appendix E sets out the ministries and offices responsible for regulations made in 2018 and the number falling under each ministry or office.

New, Revoking and Amending Regulations

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

· New

· Amending – adds, removes or substitutes text in a pre-existing or “parent” regulation.

· Revoking – revokes an existing regulation.^[4]

The tables below show the number of new, revoking and amending regulations made in the years 2009 to 2018, and the proportion they represent of all regulations made in a particular year.^[5]

New Regulations: 2009 – 2018

 

Revoking Regulations: 2009 – 2018

 

Amending Regulations: 2009 – 2018

 

 

Of the 116 new regulations made in 2018, 29 were made under a statute with no previous regulations. 

New Regulations Made in 2018

Under Statutes with No Previous Regulations

 

Regulations Reported

Following our initial review of the 152 regulations filed in the last six months of 2018, we wrote to five ministries to inquire about seven regulations made under five Acts.  After considering the responses to our inquiries, we have decided to report two regulations under Committee guidelines (ii) and (iii):

(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.

Regulations are reported under the Ministry responsible.  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 the Attorney General

O. Reg. 537/18 made under the Courts of Justice Act, amending Reg. 194 of R.R.O. 1990 (Rules of Civil Procedure)

Issue Was the form prescribed by the regulation consistent with the form posted on the Ministry website?

 

Section 13 of O. Reg. 537/18 changed the date listed for Form 37B in the Table of Forms found in the Rules of Civil Procedure from “July 1, 2007” to “September 1, 2018.”  However, at the time of our initial review, the ontariocourtforms.on.ca website listed January 1, 2019 as the date for Form 37B (this was also the date indicated on the form itself).

We raised this inconsistency with the Ministry.  The Ministry replied that the discrepancy was the result of an administrative error and that it had notified the Court Services Division of the issue.

A recent review of the ontariocourtforms.on.ca website indicates that the date on Form 37B now conforms to the date of the form prescribed by O. Reg. 537/18.  As the Ministry has corrected the discrepancy, the Committee is not making a recommendation.

Ministry of Education

O. Reg. 452/18 made under the Child Care and Early Years Act, 2014, amending O. Reg. 137/15 (General)

Issue Was the required public notice provided with respect to the regulation?

 

O. Reg. 452/18 amended O. Reg. 137/15 (General) under the Child Care and Early Years Act, 2014 (CCEYA).

Section 84 of the CCEYA requires the Minister to publish notice of a proposed regulation on a government website (and in any other format the Minister considers advisable) and provide the public with a minimum of 45 days to submit comments on the proposed regulation.  However, the Minister may decide that the notice requirement should not apply in urgent situations or where the proposed regulation is of a minor or technical nature.  In that case, the Minister must give notice to the public of this decision as soon as possible.

We did not locate public notice of the proposed regulation or notice of a decision that the notice requirement did not apply.  Accordingly, the Committee asked the Ministry whether the notice requirements of s. 84 of the CCEYA had been satisfied with respect to the making of O. Reg. 452/18.

The Ministry replied that while O. Reg. 452/18 was of a technical, non-substantive nature, the requirement to provide notice that no public consultation is required ought to have been met.  Notice was not provided due to an oversight during the regulation-making process.  The Ministry indicated that notice of the Minister’s decision that public consultation was not required has been posted on the Ontario Regulatory Registry.

As the Ministry has now provided the required notice, the Committee is not making a recommendation.

Update on Responses to Previously Reported Regulations

First Report 2018
(Regulations Filed in the First Six Months of 2017)

Ministry of Natural Resources and Forestry – (1) O. Regs. 209/17 and 210/17 made under the Provincial Parks and Conservation Reserves Act, 2006, amending O. Reg. 315/07 (Designation of Conservation Reserves) and O. Reg. 316/07 (Designation and Classification of Provincial Parks) and (2) O. Reg. 211/17 made under the Fish and Wildlife Conservation Act, 1997, amending O. Reg. 663/98 (Area Descriptions)

Section 16 of the Environmental Bill of Rights, 1993 (EBR) requires, with respect to prescribed Acts, public notice of proposed regulations that could have a significant effect on the environment.  Under the EBR (s. 36), once a decision is made to implement a proposed regulation, the Minister must give public notice of the decision.

The notice requirement does not apply to a regulation which has environmentally significant aspects that have been considered in a public participation process under another Act that is “substantially equivalent” to the process required under the EBR (s. 30).  Notice of a decision to invoke the “substantially equivalent” exception must be given as soon as reasonably possible.

The Committee asked the Ministry whether public notice with respect to the noted regulations had been provided as required by the EBR.  The Ministry indicated that

with respect to six amendments . . . that were environmentally significant the post-approval notices under EBR sections 30 and 36 should have been completed in a more timely fashion.  With respect to those six post-approval notices, MNRF is working to ensure that they are completed as soon as possible.

Given the Ministry’s commitment to provide the required notices, the Committee did not make a recommendation.

A November 2019 review of the Environmental Registry and the Regulatory Registry did not locate the post-approval notices.

 

Second Report 2018
(Regulations Filed in the Second Six Months of 2017)

Ministry of Agriculture, Food and Rural Affairs – O. Reg. 542/17 made under the Farm Products Payments Act, amending O. Reg. 321/11 (Fees Payable to Boards)

O. Reg. 321/11 sets the fees payable to the Livestock Financial Protection Board and the Grain Financial Protection Board on the sale of livestock and grain and regulates the payment of those fees.  O. Reg. 542/17 revoked and substituted the definition of livestock for the purpose of O. Reg. 321/11.

Although most regulation-making power under the Farm Products Payments Act (FPPA) is assigned to the Lieutenant Governor in Council (LGIC), s. 8(2) of the FPPA provides that the Minister of Agriculture, Food and Rural Affairs may make regulations relating to fees.  As O. Reg. 542/17 was made by the Lieutenant Governor in Council, not the Minister, the Committee asked the Ministry for an explanation.

The Ministry responded that it

agrees with your concern. A regulation made by the LGIC cannot amend a regulation made by the Minister.  As such, Ontario Regulation 542/17 is not in conformity with Guideline (ii) of Standing Order 108(i) of the Legislative Assembly. . .

The Ministry will seek the requisite approvals to correct the situation.

As the Ministry indicated that it would seek to correct the situation, the Committee did not make a recommendation with respect to O. Reg. 542/17.

O. Reg. 542/17 has not been amended.  We note that amendments made to s. 8 of the FPPA will transfer regulation-making powers from the LGIC to the Minister.^[6]  As of November 6, 2019, these amendments remained unproclaimed.

First Report 2019
(Regulations Filed in the First Six Months of 2018)

Ministry of Transportation – O. Reg. 334/18 made under the Highway Traffic Act, amending O. Reg. 287/08 (Conduct Review Programs)

Section 4 of O. Reg. 334/18 revoked and substituted s. 12 of its parent regulation, O. Reg. 287/08.  Section 12 sets out the requirements that must be met by an ignition interlock device, including the adoption by reference of standards set out in a document published by the United States National Highway Traffic Safety Administration.

An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from being started if it detects a blood alcohol concentration over a pre-set limit.^[7]

O. Reg. 334/18 was made on April 18, 2018.  At that time, s. 41.2(16)(b), (18), and (19) of the Highway Traffic Act (HTA) contained authority to make regulations prescribing requirements to be met by an ignition interlock device. Those regulation-making powers have since been repealed.^[8] 

Section 55 of the Legislation Act, 2006 provides that

if a provision of an Act under which a regulation is made is repealed and not replaced, the regulation ceases to have effect, subject to section 51 and subsection 59 (3).

In light of the repeal of s. 41.2(16)(b), (18), and (19), and of s. 55 of the Legislation Act, 2006, the Committee asked the Ministry whether there was statutory authority for s. 12 of O. Reg. 287/08.

The Ministry replied that, in its view, a different section of the HTA, namely s. 57,

is sufficient to govern those programs, including establishing requirements for the ignition interlock devices.

The Committee noted that subsection 57(1) of the HTA provides for regulations establishing conduct review programs.  Subsection 57(3) specifies that such programs may consist of or include, among other things, “the required installation and use of a device in a motor vehicle, such as an ignition interlock device.” Paragraph 57(4)(d) of the HTA authorizes a regulation to “establish and govern interlock programs.”

The Committee’s view was that the HTA no longer provides specific authority for the regulation of standards governing the installation, operation and maintenance of approved ignition interlock devices.

The Committee therefore recommended that the Ministry of Transportation take steps to bring forward a Bill to amend the HTA to provide specific authority for  s. 12 of O. Reg. 287/08.

As of November 6, 2019, the HTA does not appear to have been amended to address the concerns raised by the Committee, nor has O. Reg. 287/08 been amended.

Divisional Court Decision in Greenpeace Canada v. Minister of the Environment (Ontario)

The Committee occasionally reports on significant court decisions relating to regulations.  Greenpeace Canada v. Minister of the Environment (Ontario) is a recent Divisional Court decision concerning a regulation made under the Climate Change Mitigation and Low-Carbon Economy Act, 2016.^[9]

Background

The now-repealed Climate Change Mitigation and Low-carbon Economy Act, 2016 (CCMLEA) was a prescribed Act for the purposes of s. 16 of the Environmental Bill of Rights (EBR).  Section 16 of the EBR requires public notice of a regulation that is proposed to be made under a prescribed Act if the proposed regulation could have a significant effect on the environment.  Section 30 of the EBR sets out an exception to the public notice requirement where, in the Minister’s opinion the environmentally significant aspects of a proposal have been or are required to be considered in a process of public participation that was (or is) substantially equivalent to the process required under the EBR.

O. Reg. 386/18: Prohibition Against the Purchase, Sale and Other Dealings with Emission Allowances and Credits (the Cancelling Regulation) was made under the CCMLEA on June 29, 2018.  On July 6, 2018, the Ministry of the Environment, Conservation and Parks posted a notice on the Environmental Registry stating that it was relying on the exception in s. 30 of the EBR and explained that

this is because the Minister was of the opinion that the recent Ontario election was a process of public participation that was substantially equivalent to the process required under the EBR and that the environmentally significant aspects of the regulation were considered during that process because the government made a clear election platform commitment to end the cap and trade program.

Subsequently, the Cap and Trade Cancellation Act, 2018 was passed in October 2018.  That Act repealed the CCMLEA.  The 2018 Act also barred certain causes of action and proceedings against the Crown.  The Cancelling Regulation was revoked on November 14, 2018.

Court Decision

The applicant, Greenpeace Canada, sought a declaration that the use of the EBR’s s. 30 exception was unlawful and that the Cancelling Regulation had been enacted without compliance with the EBR and therefore it was ultra vires.  The applicant also sought an order that the Minister not again rely on general election results to justify exceptions under the EBR.

In a split decision (2 to 1), the Divisional Court declined to provide the relief requested.

Justice Myers held that the relief sought “is barred by the Cap and Trade Cancellation Act, 2018 and is of no practical effect in any event.”^[10]  He declined to consider the Ministry’s reliance on the exception in s. 30 of the EBR.

The concurring judge, Justice Mew, agreed with Justice Myers that “there is no legal efficacy to the declaratory relief sought.”  However, he observed that

Ontario was required to engage in a process of public participation before it enacted the Cancelling Regulation terminating Ontario’s cap and trade programme.  The preceding election did not relieve it of that obligation.^[11]

The dissenting judge, Justice Corbett, found that

invoking the exemption in s. 30(1) of the EBR was done after the decision had been made to enact the Cancelling Regulation, to try to save it, in the face of clear failure to meet the requirements of the EBR.  And a general election is in no way “substantially equivalent” to the process of public participation prescribed in the EBR.^[12]

 

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

Acts Under Whose Authority Ten or More Regulations Were
Filed in 2018

 

Appendix E

Ministries and Offices and the Number of Regulations
Filed in 2018 for Which Each Was Responsible^[13]