Wednesday 31 May 2000

Certified General Accountants Association of Ontario Act, 2000, Bill Pr4, Mr Wood
Mr Bob Wood, MPP
Mr Gordon Fuller
Mr Ralph Palumbo

First Report on Regulations, 1999


Chair / Présidente
Ms Frances Lankin (Beaches-East York ND)

Vice-Chair / Vice-Président

Mr Garfield Dunlop (Simcoe North / -Nord PC)

Mr Gilles Bisson (Timmins-James Bay / -Timmins-Baie James ND)
Mrs Claudette Boyer (Ottawa-Vanier L)
Mr Brian Coburn (Carleton-Gloucester PC)
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Raminder Gill (Bramalea-Gore-Malton-Springdale PC)
Mr Pat Hoy (Chatham-Kent Essex L)
Ms Frances Lankin (Beaches-East York ND)
Mr Bill Murdoch (Bruce-Grey PC)

Substitutions / Membres remplaçants

Mr Bruce Crozier (Essex L)
Mr Garry J. Guzzo (Ottawa West-Nepean / Ottawa-Ouest-Nepean PC)
Mr Bob Wood (London West / -Ouest PC)

Clerk / Greffière

Ms Anne Stokes

Staff / Personnel

Mr Andrew McNaught, research officer,
Research and Information Services

The committee met at 1005 in committee room 1.


Consideration of Bill Pr4, An Act respecting the Certified General Accountants Association of Ontario.

The Vice-Chair (Mr Garfield Dunlop): Ladies and gentlemen, I call the meeting to order. The first order of business is Bill Pr4, An Act respecting the Certified General Accountants Association of Ontario. Our sponsor today is Mr Bob Wood, MPP. I'd like to ask you, Bob, to take over at this point and introduce your delegation.

Mr Bob Wood (London West): Thank you very much, Mr Chair. As the members I think know, the Partnerships Act was amended a couple of years ago to permit professions to be given the right to set up limited liability partnerships. The actual setting up and application to a particular profession has to be done by legislative amendment. It's already been done for the chartered accountants and for the lawyers. This bill will do the same thing for the certified general accountants.

As far as I know, no objections to this bill have been received. The CGAs would certainly appreciate the support of the committee for the bill. We have with us, from the Certified General Accountants Association of Ontario, Mr Gordon Fuller, who's the executive director, and Mr Ralph Palumbo, who is the director for government relations and legislative affairs for the certified general accountants.

Rather than give a long presentation, we might simply invite these gentlemen to come forward-they're available to answer questions, as am I-and throw the floor open to questions. Gentlemen, could you perhaps come forward and identify yourselves for the purposes of Hansard? We'll see if there are any questions from the committee members.

Mr Gordon Fuller: Thank you, and good morning. My name is Gordon Fuller. I'm executive director for the Certified General Accountants Association of Ontario.

Mr Ralph Palumbo: I'm Ralph Palumbo, the director of government relations for CGA Ontario.

The Vice-Chair: Would either of you gentlemen be making any comments?

Mr Fuller: No, Mr Chair.

Mr Palumbo: No comments.

The Vice-Chair: Bob, do you have any further comments?

Mr Wood: I've completed my submission.

The Vice-Chair: OK. I understand, Mr Guzzo, you're subbing for the parliamentary assistant, Mr Coburn. Do you have any comments?

Mr Garry J. Guzzo (Ottawa West-Nepean): I have not. I have one question: What took so long, gentlemen?


Mr Guzzo: I just want to put the blame where it belongs.

No, I have no questions, Chair.

The Vice-Chair: Do any of the committee members have any questions?

Mr Gilles Bisson (Timmins-James Bay): A couple of things. First of all, I support the legislation; I think it's high time. My question is just generally the other issue, if you're any further ahead with regard to the issue of being able to do some of the work-the other piece of legislation; I'm trying to remember what it's called-around the CGAs being able to do some of the signing-off of the public licences. I know it's a different issue, but I'd like to know if you've got anything planned as far as bringing back something.

Mr Fuller: Thank you for the question. That's an ongoing issue with us. We're dealing with the Attorney General's ministry on that particular piece of legislation under the Public Accountancy Act. We hope it will come forward before too long.

Mr Bisson: I just want to indicate here and now that we support that. We think it's high time something should happen, and I'm wondering if these guys across the way have decided to make things any easier to give you that right.

Mr Fuller: Thank you, sir.

Mr Bisson: Are you going to answer the question?

Mr Fuller: I wish I could. We're still waiting for a definitive reaction from the ministry. I think it's called due process, and it's a little frustrating.

Mr Bisson: That's not what you called it when we were government. Come on now, guys. You guys were a lot tougher. It sounds like you guys are kind of close and you want to have it go to the public?

Mr Palumbo: No, I wish it were.

Mr Bisson: Anyway, I just want to say we think it's high time. That's another piece of legislation, quite frankly. We can't deal with it at this committee because that changes the authority, but it could be dealt with by a private member's bill or, more importantly, by a government bill.

Mr Fuller: Thank you very much. I appreciate that comment.

Mr Bruce Crozier (Essex): I just wanted to comment, as I did at the previous meeting when we dealt with this bill as to whether we could bring it forward or not, that I can vouch for my colleague here today. Being a CGA myself and having been one since 1967, I can vouch for their character, for the association and its integrity, and I will be supporting the bill.

The Vice-Chair: Are there any other questions? Are the members ready to vote?

Shall sections 1 through 3 carry? Carried.

Shall the preamble carry? Carried.

Shall the title carry? Carried.

Shall the bill carry? Carried.

Shall I report the bill to the House this afternoon? Carried.

Thank you very much, gentlemen and Mr Wood, for bringing this forward.


The Vice-Chair: Item 2 on the agenda is consideration of a comprehensive response to the first report on regulations, 1999. Andrew was going to run us through it.

Mr Andrew McNaught: Good morning. I'm Andrew McNaught. I'm the research officer for the committee. We're here to deal with the committee's report on regulations which was tabled last December. Some of you were here and quite a few weren't, I'm afraid. Anyway, in the report that was tabled we asked for comprehensive responses from two ministries, the Ministry of the Attorney General and the Ministry of Finance, with respect to regulations made under the jurisdiction of those ministries. We now have those responses.

I'll just run through the issues briefly for you again. The first issue concerns two regulations made under the Administration of Justice Act, for which the Ministry of the Attorney General is responsible. Ontario regulations 214/97 and 488/98 are regulations setting the fees for filing claims in Small Claims Court. In these regulations, a distinction is made between frequent claimants and infrequent claimants, with higher fees being charged to frequent claimants. In our report, we raised the possibility that higher fees for one class of claimants might be a violation of the committee's guideline 6, which provides that a regulation should not impose a fine, imprisonment or other penalty.

In its comprehensive response, the ministry argues that we have interpreted the meaning of "penalty" too broadly. The ministry contends that the term "penalty," as used in the context of the guidelines, means something similar to a fine or imprisonment. The higher fees imposed on frequent claimants therefore are not penalties in this sense, since they're not being imposed as a consequence of committing a prohibited act.

Mr Bisson: Mr Chair, before we go any further, what about the Fuel Tax Act?

Mr McNaught: I'm getting to that later.

Mr Bisson: But I don't have the documents that have to do with it.

Mr McNaught: There should be the comprehensive responses from the ministry plus our report.

Mr Bisson: May I have a copy?

The Vice-Chair: Do people want copies of the report?

Mr Bisson: If I could. Unfortunately, I wasn't on the committee back then and I'm having to come up to speed. If I understand, what you're getting at here is that there's an attempt to charge a higher level of user fee to somebody who continually uses Small Claims Court? Is that what's at issue?

Mr McNaught: It's those who file 10 claims in a year or more.

Mr Bisson: Suggesting that the government do this?

Mr McNaught: Well, it's in a regulation made under the Administration of Justice Act.

Mr Bisson: When was that?

Mr McNaught: There are two regulations. They were made in 1997 and 1998.

Mr Bisson: If I understand correctly, these regulations were brought back to this committee when?

Mr McNaught: All regulations stand permanently referred to this committee, and the research service, on behalf of the committee, reviews these regulations and periodically reports.

Mr Bisson: How did this regulation end up back in committee? Was it the government that brought it back?

Mr Raminder Gill (Bramalea-Gore-Malton-Springdale): No, they always bring back whatever they think needs attention. It's the research officers who keep an eye on it.

Mr McNaught: We reviewed these regulations and found what we thought were potential violations of committee guidelines, and we corresponded with-

Mr Bisson: I have a more general question, just so I understand, because this is not a committee that I normally serve on. So all the regulations the government makes, or its ministers of the crown, are then circulated to the research department of this committee, and you guys go through it to see if there's anything that strikes you as needing our attention.

Mr McNaught: In the standing orders that govern this committee, there are nine guidelines that we are to apply when reviewing regulations. We report potential violations of those guidelines to the committee, and it's up to the committee to decide whether they want to report a particular regulation.

Mr Bisson: Obviously, I'd like to sit down with you afterwards and go through those nine guidelines to understand that better. What I'm driving at is, can the committee get a copy of all the regulations that are being sent to the-

Mr McNaught: All regulations in Ontario are published in the Ontario Gazette.

Mr Bisson: But I thought there was something else.

Mr McNaught: These are all public.

The Ministry of the Attorney General, in its response, concludes that the narrower interpretation of the term "penalty" is more consistent with the purpose of guideline 6, which is to ensure that penalties such as imprisonment and fines for contravention of a regulation or an act are not imposed by regulation but are imposed under the act itself. In this way, such penalties can only be imposed after the debate of the assembly.

I should point out that it has been several years since the committee has reported a regulation under the penalty guideline. I had to go back to some of the committee's first reports in the late 1970s to find any discussion of this issue. It's my feeling that the ministry's interpretation is probably a good one and in fact appears to coincide with the view taken by the committee in several reports several years ago.

Those are my comments on that issue. It's up to the committee to decide where to go from here.

Mr Bisson: I might still need some clarification. The reason this particular regulation was snagged as something for us to take a look at was because you had concerns that the penalty sections were not in keeping with the mandate of this committee. Can you explain a little bit more what you're getting at there? Where was it in violation, in their view?


Mr McNaught: In the report-you have a copy of that now. It's on page 6. Essentially, these regulations set the fees that are charged to people who file claims in Small Claims Court. You'll see that for that class of claimant known as the frequent claimant, the fees are significantly higher. We simply raise this as a possible violation in that it's penalizing those who use the court more often than others.

Mr Bisson: I've got you. I've got to say, my initial reaction was basically the same thing: How can you have a system of court that says, just because you've gone more often than somebody else, we're going to charge you a higher filing fee? I think, quite frankly, that's not something that should be allowed. My difficulty is that I'm wondering if this committee has the power, as members, to try in any way to stop what is being attempted by the government.

Mr McNaught: The committee can simply report this to the House and that's the end of the committee's role.

Mr Bisson: I can tell you right now, I have a problem with the whole concept that just because somebody has gone to Small Claims more than 10 times in a year, they're being penalized. For example, I was in small business and I used the Small Claims Court quite often for bills that were not paid by people I had done business with. I was in the television repair and sales business. Often people would not pay their bills and we'd have no other means to get the money that was owed. If you are now going to start charging small business people an additional rate because we have people who don't want to pay their bills, I don't see that as being particularly fair. I think we should try in some way, as a committee, to send a message back to the government saying, "Lets not penalize the small business sector or other people who use the Small Claims Court as a means of getting what's theirs."

Mrs Claudette Boyer (Ottawa-Vanier): At first, Gilles asked, why are we discussing this? I remember very well the meeting in December where we did get this report and we asked for follow-ups. We were supposed to do it two months ago, I think, and we didn't have a chance. This is the response that we asked for. I just wanted to make it clear.

Mr Bisson: In all the times I've come to this committee, I've never seen this. Normally, it's somebody who wants to have a private bill. So it goes to show an old dog can find new tricks.

Mr Crozier: Just a general question. When you go to Small Claims Court, as I recall, having been in business as well, the cost is added to the debtor's debt. Is that correct? Can anybody confirm?

Mr Guzzo: Not always, but that's the general rule.

Mr Crozier: My point is, even going to Small Claims Court doesn't mean you're going to collect the money even if you get a judgment, but there is the opportunity at least for the claimant to recover those costs.

Mr Bisson: I just wondered if they have the same concerns. I'm sure you have the same concerns as I do, and I just wanted to know if you had any comments.

Mr Wood: I guess the theory behind this is to try to discourage those who put in nuisance claims. The point was made by Mr Crozier a couple of minutes ago that the court can do that in costs now, and often does, if the claim is without merit. If you have a lot of claims that are with merit, I don't know exactly what the reasoning is behind this particular regulation.

My submission to the committee is similar to the one I made some five or six months ago. You might want to consider the Red Tape Commission as a resource with respect to the report you have today. We accept individual complaints, as the members know, and our mandate is to make sure that the government follows good regulatory practice. If there are some doubts, there is no reason that you can't refer this to us for our opinion if you wish to. So please consider that as a resource that could be made use of.

I would suggest that in attempting to rectify any problems you might identify, to the extent that they are done in a way that shows the ministry the error of their ways as opposed to creating confrontation, there is probably a greater likelihood of an actual result.

Mr Bisson: I hear what you're saying, and that distresses me no end. What you're saying is that if somebody takes an opposition voice to the minister that's too loud, they're going to dig in their heels and not do anything. I think it's a hell of a statement to make about any minister of the crown and I hope that's not the case. If we decide by way of committee to send back a report to the House that we think this is a bad idea, that's fine, but I'll tell you, don't say to me just because people take a stronger voice than others in opposition, somehow or other that's going to result in not having action by the minister. If that's the case, democracy is in serious trouble.

Mr Gill: Originally, I had similar concerns as Mr Bisson has as to, why should we penalize somebody? As Mme Boyer said, we've been involved in this a little bit more than yourself, Mr Bisson, in terms of this particular item. Then I started thinking, is the analogy the same as a vacation traveller versus a business traveller? We recently were in Sudbury and in Windsor. As a business traveller, your ticket ends up being $600, $700. As a vacation traveller, if you went one day and came back a week later, it might be $200. The analogy I'm driving at is, if you're running a business, be it a collection agency, be it so many claims that you keep putting in and hopefully some of them you're going to win, the courts therefore should be charging you more because this is your business-to collect money back.

If you are finding some problems-let's say you have a few cases: one, two, five six. You are like any ordinary person, and you shouldn't be charged too much money to access the facilities. But if you're running as a business many, many claims, then you should be paying for it because of that.

Mr Bisson: First of all, I don't agree with your analogy of the airline business. Any traveller, either business traveller or vacation traveller, who travels at the last minute or on short notice as we do, pays through the nose. The reason vacationers are charged less is that normally their holidays are booked way in advance and the airlines are trying to fill seats. So the analogy is not a good one.

I just come back from the perspective of where I understand my interactions with Small Claims Court. I don't know how many times I would go to Small Claims Court every year, but I can tell you it was certainly more than 10. Most of us who have been in small business and who had to deal with people on credit would know that we often get stiffed. I'm not going to get into the percentages, but we often get stiffed with bills that are not paid and we have no way of being able to remedy that.

Currently, the way it works, and I was glad Mr Crozier raised it, is that the judge has certain discretion. If, for example, I am a businessperson or an individual who far too often appears before his or her court, the judge, as Mr Guzzo would know, has an ability to deal with that by awarding costs to the other person or not ruling in my favour-of finding some way to try to discourage me from utilizing the court for matters that shouldn't be there.

But the reality is that most people who use it frequently, unfortunately, are small business people, because they don't have ways and means otherwise to recoup the losses they've got by bad credit. I just think it's a really bad idea. In the end, the judge has the right to charge back to the person who owes the bill. For example, if I'm a small business person going in, the judge can very well say, "All right, Mr Gill"-the person I'm going after-"you have to pay the costs to the court." But that doesn't always happen, as you know, Mr Guzzo. I've been before Small Claims judges a number of times, and these matters are sometimes grey. The judge finds himself or herself in the position of trying to find some saw between the two. Often, I used to get my money back, but I had to pay the costs. That, I would say, was about 50% of the time. If I, trying to recoup a bad debt, am going to have to pay extra, I think it's a bad idea. I think as a committee we should be sending that message back to the government. I take Mr Wood's comments and suggestion as a friendly one; I don't mean to badger you. But we as members and I think people who understand what small businesses are going through should say back to the government: "This is not a good idea. We ask you not to do this." If I could do that by way of a motion, or whatever's the way to do it-

The Vice-Chair: The clerk is going to explain this as far as our committee's concerned.


Clerk of the Committee (Anne Stokes): The committee reports to the House, and the committee has made a report to the House regarding this particular regulation and one other and the ministry has responded. So the business now is to determine, is the committee satisfied with that response? The committee could be directed to write a letter to whoever you wish. We could also make a second report to the House saying that, in the committee's opinion, this regulation contravenes the guidelines as outlined in the standing orders. The committee could also ask the legal staff at the ministry to come to the committee and further explain why they feel it's not a penalty. There are the nine guidelines we're reviewing that the research officer reviews the regulations against. In the opinion, this one was, "Regulations should not impose a fine, imprisonment or other penalty," so that's the issue at hand: Does this particular issue impose a penalty? The ministry is responding saying no, it's not. So we could ask for further information from the ministry; they could actually come to the committee and further explain. We could report to the House and say that we're still not satisfied.

Mr Wood: There's a further alternative, if you want to exercise it, which is that as you are considering this, seek the opinion of the Red Tape Commission: Do they think it's a good regulation or don't they?

Mr Bisson: So you're saying, if I understand you correctly, that we would not do anything with this at this time until we actually refer it to the Red Tape Commission, or that as a committee we send it to the Red Tape Commission.

Mr Wood: Simply to get a further opinion. It then comes back here, with the benefit of that opinion, for whatever-

Mr Guzzo: Don't ask the Red Tape Commission to do anything; just get an opinion.

I think there might be more to this than meets the eye. At first glance it looks like somebody said: "We've got to get a method of having these things pay their own way. Make the Small Claims Court pay its own way." They didn't want to increase the fees too much, discourage people from going. What happened? Who are the big users of the Small Claims Court? Yes, there are some small businesses, but collection agencies, really. But the collection agency is just an agent representing a number of small businesses. It may only have eight or 12.

If you get it into the hands of the Red Tape Commission for an opinion, I think you buy the time and the window of opportunity you require.

Clerk of the Committee: I would like to impress upon the committee that the committee is not here to review or consider the merits of any policy or any regulation. It's within those strict guidelines. It's not policy. I wouldn't want to see you getting into requesting an opinion of the commission regarding the merit of that particular regulation or of the policy itself. The committee's only looking at, against this guideline, the interpretation of the penalty. I think that's what it rests upon.

Mr Guzzo: But your instructions, as I understood them when you were speaking just now, Madam Clerk, was that it is open to us to make another report to the House.

Clerk of the Committee: Yes, it is, and we can ask for further information.

Mr Guzzo: If it's open to us to make another report to the House, it's open to us to do some more research, and if one of the ways we want to do that is to get an opinion from the doorman at the Chelsea or the Red Tape Commission or whoever, we're free to do it.

Clerk of the Committee: Yes. I just wanted to clarify, the narrowing of the scope that we would be investigating.

Mr Bisson: That's why I was asking the questions earlier. As I understand what you were saying, all we can do is to say, does this regulation measure up to the nine guidelines that constitute the powers of this committee? From what I heard you say earlier on, you tend to agree with the ministry's interpretation. That's what I heard you say.

Mr McNaught: I'm not disagreeing or agreeing with the underlying policy. It's strictly on a sort of a legalistic issue here.

Mr Bisson: But you look at the ministry's response and say, "You know, they make a point."

Mr McNaught: What I'm saying is that the issue here is the interpretation of the term "penalty." In the guidelines, "penalty" is used alongside of "fine" and "imprisonment." All the ministry is saying is that the imposition of higher Small Claims Court fees for frequent claimants isn't in the same nature as imprisoning or fining somebody, so in that sense it's not a penalty.

Mr Bisson: So the option they present as to what you can do, to refer this matter back to the Red Tape Commission, in fact would not be in order for us as a committee, because we're asking them on what really would be a policy issue, and this committee cannot change policy; all we can do is deal with the actual regulations or bills. Am I correct? Even if they come back to us and say, "Yes, we think this policy is stupid," there is nothing we can do about it. All we can do is deal with the legal matter. If that's the case, my options are to either call the ministry lawyers in and ask some questions or to report back to the House. I would opt at this point to bring the ministry lawyers back in. That's what I'd rather do at this point. It would give me the opportunity to seek legal counsel ourselves and talk to research about your opinion on this and see if this is what we want to do.

The Vice-Chair: That is an option. How does everyone else feel about that?

Mr Bisson: I don't think we have much of anything else to do.

The Vice-Chair: Mr Bisson is suggesting we get some ministry lawyers in to explain it.

Mr Gill: We could take another kick at the can at that time and perhaps get some more explanation.

Mr McNaught: I don't know if you've had a chance to go through the ministry's comprehensive response, but my own sense is that I don't think there's a lot to be added to what they have to say in the comprehensive response.

The Vice-Chair: Is Mr Bisson making that a motion?

Mr Bisson: Sure.

The Vice-Chair: That's moved by Mr Bisson that we ask the ministry lawyers to come in and explain this a little further. Are there any other comments on that? All in favour of that? Who had their hands up? That's carried.

Mr McNaught: There's a second issue as well. I'd better find the page reference for you in the report. I believe it's page 7. That deals with two regulations, one made under the Fuel Tax Act and the other made under the Gasoline Tax Act. The Ministry of Finance is responsible for these regulations.

These regulations implement the international fuel tax agreement, to which Ontario is a signatory. The regulations came into force on January 24, 1999, but provide that they are to be retroactive to January 1 of that year, so they take effect more than three weeks prior to the date on which the regulation came into force.

As mentioned in our report, we could find no specific authority in either act to make these regulations retroactive, in effect. Therefore, we raised the possibility that these regulations violate committee guideline 4, which states that regulations should not have retroactive effect unless clearly authorized by statute.

Our position is that for a regulation to have retroactive effect there must be clear authority in the section under which the regulation is made, and in this case, we could not find that authority.

I refer you now to the handout you have on the Fuel Tax Act. The essence of the ministry's argument is that although there may not have been a specific authority in section 28.2-you'll see that on the first page of the handout, and underlined is the regulation-making authority for that section. The international agreements remain under this, were adopted and the regulations made under section 28.2(5), and it says nothing about retroactivity.


However, the ministry's position is, "Because you have authority in section 29"-which is on the second page you have, and at the bottom I've underlined the regulation-making power in section 29 which does make reference to retroactivity-"that's implied authority to make regulations under any section to be retroactive." So a regulation made under 28.2 can also be retroactive because 29 says you can do it.

There are a couple of principles that we feel apply here. The first is that in analyzing legislation it seems reasonable to assume that subsections are grouped together within a particular section to express related matters. Thus, it would be reasonable to assume that subsection 29(3) in the Fuel Tax Act relates to the regulations made under subsection 29(1), but not to regulations made under another section, a section such as 28.2. Second, the academic authorities on statutory interpretation say that retroactive legislation should be strictly interpreted. In other words, the intent to make a statute or regulation retroactive should not be implied; rather, it should be clearly stated.

In conclusion, we continue to see the regulations made under the Fuel Tax Act and Gasoline Tax Act as a possible violation of guideline 4.

Mr Bisson: Can I just clarify one thing? If they were to get the right to collect the tax retroactively, in the grand scheme of things, what does this mean? The province is stuck on the-

Mr McNaught: You would probably have to ask the ministry questions like that.

Mr Bisson: It's fairly clear from your interpretation, basically-and I agree with you because I've gone through that on other bills before, not on this committee, but in the House and on clause-by-clause. It's always been explained to me that you have to specifically spell out per section what rights you're going to give the minister when it comes to the ability to make regulations and to what extent. So I agree with your interpretation. I think we should not allow this to be accepted.

The Vice-Chair: Further questions? Are you asking the ministry to come here and explain that as well?

Mr Bisson: In this case-and please help me out here-we have the right as a committee, because it clearly does, in my opinion, violate the guideline, to report back to the House that we feel this particular regulation violates the guideline; that it should not be accepted, or they should change the statute.

Clerk of the Committee: The committee can report to the House. The first report was the one where we identified the problems. In the second report, the committee could say: "Here's the second report and we disagree. We feel that this particular regulation violates the guidelines." The committee can just present the report and there is no response required. The committee could present that report and ask for the House to consider the recommendations made in it, or just ask and move its adoption. Those are the options available for the committee.

Mr Bisson: Move the adoption of recommendations of the committee to either change the regulation or to drop it, right?

Clerk of the Committee: It's basically that, yes.

Mr Bisson: Then that's what I would suggest.

Clerk of the Committee: OK, so we would ask the research officer to write the report and then table that report.

Mr Bisson: Yes.

Mr McNaught: Do you want to do that separately from the other issue as well, or wait until we've heard from the ministry?

Mr Bisson: We could do it all at once. I don't think there's any use doing it separately. We should deal with it as one matter, the two items. We could deal with that in our further report.

The Vice-Chair: Mr Gill?

Mr Bisson: There's a real bad buzz here.

Mr Gill: I think it's the Chair. His microphone is somehow echoing.

This could perhaps be my ignorance, being a new member, but part of the regulation-whether it appears in 29 or 28. My thinking is that it does give them the retroactivity under 29.3, on the next page, so I'm assuming it should apply to 28 and 30 and whatever, as long as it's part of the same regulation-a different sub-class. Perhaps we can get an explanation on that. I'm of the opinion, what's the difference? If it shows on 29, then it does apply to 28 and 30.

The Vice-Chair: But legislative counsel has identified this as a problem.

Mr Gill: No, I heard that. But my opinion is, are we getting too strict? Are we getting too limited in our thinking? I'm not trying to relate this to another bill or another regulation. It's part of the same regulation.

Mr Crozier: I appreciate what Mr Gill is saying. I'm thinking I really don't mind that this is retroactive, it's just how we're going to go about making it retroactive. So, you might say, what difference does it make? But there may be another instance come along some day that I'm not so pleased about; therefore, it really makes a difference. I think we have to look at the precedent we're setting, whether fuel tax or whether it's any other item.

I understand what you're saying, but I think we should treat this the same as we would anything that comes along in regulations, with this same opinion.

The Vice-Chair: Mr Wood, care to comment?

Mr Wood: The issue is, does the statute give power to make retroactive regulations? I think section 28.2(5), which reads "The Lieutenant Governor in Council may make regulations that are necessary or advisable to implement an agreement entered into under this section," is sufficiently strong to support the regulation.

Mr Bisson: I guess I'm next up. I read that as not giving retroactivity. I hear the argument you're making. The issue, to me, is not whether it's desirable or not desirable to give retroactivity. Probably it is. I don't know. My point is that this committee is charged to take a look at the regulations to make sure they're consistent with the due form in which we write regulations, according to our guidelines as a committee and according to the statutes of the Legislature. What I'm hearing the research officer say here is that in this particular case, it was an error. I don't think in the grand scheme of things it was anybody trying to put anything past us; it was just an error in the way they wrote it and they're going to have to change it. Basically, I'm recommending that happens.

Mr Wood: Section 28.2(5) does not give them the power to make a retroactive regulation. That's what he's saying.

Mr Bisson: The ministry's saying they do.

Mr Wood: Yes. I'm saying in this case the ministry's right. I don't think it's marginal. If indeed they have made a regulation they don't have the power to, let it be challenged in the courts. I don't think you'd have much trouble supporting the regulation.

Mr Bisson: But I disagree, because if you take a look the way sections are already written, when we give the power to the minister to write regulation we're fairly clear about retroactivity. It's normally very well spelled out in the law that the minister has a right to make regulations and can make it retroactive to a certain date.

In this particular case, if you take a look at 29(3), that's exactly what it says. It's silent on retroactivity in 28.2(5). Therefore, I read that as that he or she doesn't have the right to do retroactivity. That being the case, I think we basically report back to the House, when we do our report, once we've heard on the other regulation that we have to deal with, that in the opinion of this committee that regulation doesn't provide retroactivity and if the government feels it needs to be, make a change in the statute. In other words, put it a red tape bill or something.

Mr Guzzo: Look, if this were not a tax bill, if this were any other piece of legislation, it wouldn't be a problem. It's only because the courts have interpreted tax legislation as strictly as they do. I agree with Mr Wood. I say do it, and if somebody is so disposed as to moving to strike it down, let them try.

Mr Bisson: First, I don't quite agree with your interpretation. I've made the argument and I'm not going to repeat it. You have made your argument and you're not going to repeat it. Obviously, we disagree.

I am moving a motion that when we go back and report overall, the report we send to the House, one of the things we report is that this regulation is not in keeping with our guidelines as a committee and therefore should be changed. That's one of my motions, that rather than voting for it we're voting against it.

Mr Guzzo: Let's get on with it.

Mr Bisson: Recorded vote. I want to know who's with me and who's against me.




Boyer, Crozier, Gill, Guzzo, Wood.

Mr Bisson: I have a question: Can I do a vote against when we report to the House?

Clerk of the Committee: In the report I believe you can have a dissenting opinion.

Mr Bisson: That's what I wanted to raise. When we report back to the House on the other matter, I want it noted that myself and the party disagreed. This, quite frankly, doesn't give much.

Mr Guzzo: Do you think your party agrees with you?

Mr Bisson: Yes, all the time. I know I can get at least 10% of them to agree with me. That's all I need to win.

The Vice-Chair: Is there any other business anyone wants to bring up? OK. We're adjourned at this time.

The committee adjourned at 1052.