REVIEW OF 1994-95 REGULATIONS REPORT
CONTENTS
Wednesday 29 May 1996
City of Ottawa Act, 1996, Bill Pr34, Mr Grandmaître
Bernard Grandmaître, MPP
Edythe Dronshek, legislative counsel, city of Ottawa
David Saint, project officer, department of engineering and works, city of Ottawa
City of Ottawa Act, 1996, Bill Pr47, Mr Grandmaître
Bernard Grandmaître, MPP
City of Ottawa Act, 1996, Bill Pr48, Mr Grandmaître
Bernard Grandmaître, MPP
David Saint, project officer, department of engineering and works, city of Ottawa
Review of 1994-95 Regulations Report
STANDING COMMITTEE ON REGULATIONS AND PRIVATE BILLS
Chair / Président: Barrett, Toby (Norfolk PC)
Vice-Chair / Vice-Président: Smith, Bruce (Middlesex PC)
*Barrett, Toby (Norfolk PC)
*Bisson, Gilles (Cochrane South / -Sud ND)
Boushy, Dave (Sarnia PC)
*Hastings, John (Etobicoke-Rexdale PC)
*O'Toole, John R. (Durham East / -Est PC)
Pettit, Trevor (Hamilton Mountain PC)
*Pouliot, Gilles (Lake Nipigon / Lac-Nipigon ND)
*Pupatello, Sandra (Windsor-Sandwich L)
*Rollins, E. J. Douglas (Quinte PC)
*Ruprecht, Tony (Parkdale L)
*Sergio, Mario (Yorkview L)
*Shea, Derwyn (High Park-Swansea PC); parliamentary assistant
to the Minister of Municipal Affairs and Housing
*Sheehan, Frank (Lincoln PC)
*Smith, Bruce (Middlesex PC)
*In attendance / présents
Clerk / Greffière: Lisa Freedman
Staff / Personnel:
Philip Kaye, Legislative Research Service
Michael Wood, legislative counsel
The committee met at 1006 in committee room 1.
The Chair (Mr Toby Barrett): Good morning, all. Welcome to this regular meeting of the standing committee on regulations and private bills. If we all have an agenda before us, I would point out part of the agenda is also on the back of this sheet of paper.
CITY OF OTTAWA ACT, 1996
Consideration of Bill Pr34, An Act respecting the City of Ottawa.
The Chair: Our first order of business today is Bill Pr34. I see the sponsors and applicants are at the witness table. I call on MPP Bernard Grandmaître for comments, then I'll ask the applicants to introduce themselves. You may have received information from the clerk. We ask for very brief comments to begin our deliberations.
Mr Bernard Grandmaître (Ottawa East): Thank you, Mr Chair. First I'd like to introduce my guests from Ottawa this morning: Edythe Dronshek, legislative counsel for the city of Ottawa, and David Saint, project officer, research and development division for the city of Ottawa.
The purpose of Bill Pr34 is to allow the council of the city of Ottawa to pass bylaws designating highways and sidewalks as removal zones and prohibiting objects or vehicles used to sell goods or refreshments in those zones. The bill also authorizes the creation of a permit system to allow owners of objects or vehicles to sell goods or refreshments in a removal zone.
Mr Chair, you wouldn't want to deal with my three bills at the same time?
The Chair: No, one at a time.
Mr Grandmaître: Good. I'll let Ms Dronshek give you an explanation of the purpose of the bill.
Ms Edythe Dronshek: This application is intended to clarify the powers that the city obtained in the City of Ottawa Act, 1992, No. 4, relating to street vendors and the creation of the permit system. At that time, these general powers were considered to be sufficient to put our designated space program into place and to authorize most of the matters that this application now addresses.
The main principles of the 1992 act remain unchanged. This bill authorizes a practical and effective system of regulating the use of sidewalk, boulevard and roadway space. It provides the authority to create removal zones on parts of highways or on highways in defined areas of the city which are no-vending zones, and then to designate spaces for vending within these zones.
The permit system grants the exclusive use of a designated space by a street vendor for the sale of types of goods or refreshments that are different from goods or refreshments sold in adjacent fixed business premises. For example, the spots have been designed in a manner that ensures that a flower vendor will not have a designated space located in front of a florist's shop.
The general authority that was obtained is being spelled out in greater detail as it pertains to differing regulatory authority between and within classes so that it clearly expresses the authority, and removes any area of doubt, as to the enabling authority for the designated space program. The following elements have been revised or added to clarify the authority:
The authority to allow vendors such as pedal-powered ice-cream vehicles with a permit to vend generally throughout a removal zone. The existing act allows us to exempt them from the permit system but not to impose rules or regulations on them.
The authority to regulate the types of goods or types of vehicles permitted in a general removal zone permit.
To provide clarification with respect to the method of allocating designated spaces on specific portions of sidewalk, boulevard or roadway space by specifying the different criteria that may be used to allocate spaces, including a call for tenders or proposals, drawing of lots and consideration of the length of time an applicant has been the holder of a permit issued by the city. The 1992 act gave us the authority to establish the method of allocation and did not elaborate the criteria.
The authority to limit the number of permits issued to any one person or to any type of vendor.
There is an opportunity for certain vendors, and the city at this point has opted for the original permit holder to match the highest bid and be offered that space, so the person that has been vending on that space for two years will be given the opportunity to match the bid and remain there. He won't be put out of business with the proposal call.
The following elements have been carried forward without change: the authority of the council or a committee of council to suspend or revoke a permit after giving the permit holder the opportunity to be heard; the authority respecting enforcement and the general removal authority; and the provision indicating that the bylaw passed under this act applies to a highway established as a regional road by the regional municipality of Ottawa-Carleton if and when approved by the regional municipality. This provision has a sunset clause pending the same legislation being obtained by the region.
The regional municipality, on May 22, 1996, approved Ottawa's application for clarifying the authority to regulate street vendors and will seek to amend its legislation directly. It also authorized Ottawa to continue administering and enforcing the designated space program on regional roads within the city.
The designated space program prohibits vending in a defined area of the city on both city and regional roads, authorizes vending spaces to be established within the area and permits the vendor to have exclusive use of the specific space. One of Ottawa's conditions precedent for obtaining a permit is that the vendor must also hold a licence from the city for vending in either the itinerant seller class or the refreshment vehicle class.
The permit system is superimposed over the broader-based licensing regulations. The conditions precedent for obtaining a business licence and the regulations respecting the business are found in the general licensing bylaw. The permit regulates the use of street space.
The need to clarify the authority previously granted arises because of the two Supreme Court of Canada decisions released in 1993. In 1993, the Supreme Court in R. v Sharma and R. v Greenbaum held that municipalities are creatures of statute and can therefore exercise only those powers which are explicitly conferred to them by provincial statute, and the enabling legislation must specifically authorize regulations that differ between and within classes. In order to draw a distinction, the enabling legislation must explicitly authorize it. As an overabundance of caution in light of the Supreme Court of Canada decisions, council decided to clarify the powers previously granted by specifying the authority to make regulations that differ between and within classes.
This bill is a replacement bill rather than an amendment because of the standing orders for private bills. They require that where it's proposed to amend a provision, the entire provision must be re-enacted. Because of the style of the previous act, there is need to reference internal numbering and other clause and section references, therefore it was necessary to replace the act rather than amend it.
The city of Ottawa has licensed street and sidewalk vendors, comprised of itinerant sellers such as flower vendors and merchandise peddlers, and refreshment vehicles, comprised of hot dog stands and chip wagons, for a number of years pursuant to the City of Ottawa Act, 1980, No. 2. It has licensing powers that are similar to some granted in Bill 26. It allows us to define classes and set up distinct classes within the group, which is why we have the authority to license sidewalk vendors, roadway vendors and vendors on private property, so that the licensing system in place has different rules for these different types of vending.
The application for enabling legislation in 1992 had been prompted by growing concerns related to street vending activities which had emerged over the course of the previous decade, including traffic congestion, the mobility and appearance of display units, territorial disputes among vendors, the need for increased enforcement and complaints from fixed business premises that street vending compromised their business.
The designated space program has addressed these issues, alleviated these concerns and should be kept intact. It is programming space, which both the business community and the vendors themselves are supportive of. From the vendors' perspective, the designated space program gives the vendor security of location and ability to generate a customer base without the need to fight for the specific space or arrive at 4 am to be the first vendor to occupy the space. For the business community it ensures that vendors do not sell similar goods as the business adjoining the space. It rations space so that there is not a proliferation of vendors in one location and that new vendors will not be cluttering up or blocking access to their business storefront.
The permit system, together with the ability to call for tenders or proposals or hold a public auction, ensures that the city retains exclusive possession of its streets and highways and removes any doubt that vendors do not have any long-term rights to the space.
The licensing powers in the restructuring act, Bill 26, were reviewed to see if the city obtained the powers needed to enact the designated space program. We are of the opinion it does not. Municipalities are given a general licensing power to regulate and govern any business, and there is increased flexibility in these licensing powers. However, these powers do not provide the authority to prohibit vending in certain areas or on the highways, to designate specific vending spaces and grant exclusive use to a street vendor and to allocate the spaces by the call for tender or proposals.
Mr Grandmaître: I'm sure, with this kind of explanation, there are no questions. I would call for the vote.
The Chair: Thank you, Ms Dronshek. Does that conclude comments from the applicants?
Ms Dronshek: Yes.
The Chair: Seeing no other interested parties, I now ask the parliamentary assistant for municipal affairs, Derwyn Shea, to comment on behalf of the government.
Mr Derwyn Shea (High Park-Swansea): The proposed bill clarifies the powers the city of Ottawa obtained in its 1992 private act, and no ministry has expressed any objection.
The Chair: I now call for questions from the committee.
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Mr John O'Toole (Durham East): Just a reminder that the sweeping powers of Bill 26 aren't as ominous as perhaps we thought they were, as the bill suggested. It reminds me of Bill 42 as well, which was a previous prescriptive piece of bylaw legislation.
I really have just one question specifically. If I were a business owner today in this designated area, perhaps a flower dealer, as the owner of the property could I sell fruits and vegetables outside my current business?
Ms Dronshek: If you were in the designated space area, you couldn't do it unless the space was actually designated for that type of vending. There is a scenario built into the bill for special events and things of that nature, and sidewalk sales and things of that nature are dealt with --
Mr O'Toole: Is that what you'd call a special event?
Ms Dronshek: That's what we call a special event, including Canada Day, which is our major special event.
Mr O'Toole: What if I were just a homeowner and I decided to sell fruits and vegetables in front of my own home?
Ms Dronshek: As long as you're not in the designated zone, you can obtain a licence to sell on the street.
Mr O'Toole: You'd still have to be licensed?
Ms Dronshek: Yes, you still have to be licensed.
Mr O'Toole: Oh, I don't go along with that. I think any private person --
Interjection.
Ms Dronshek: That's done under our licensing powers.
Mr David Saint: Yard sales and so forth are exempt from our licensing bylaws. I had a yard sale last week because I moved. There's nothing in our legislation that limits private residents from having yard sales or garage sales.
Mr O'Toole: If I were carving ducks, could I sell them on the stoop outside my house?
Ms Dronshek: We'd have to be able to prove that you are carrying on a business in order to fit into the business licence. If you're doing it on a one-time basis or an infrequent basis -- but that has nothing to do with this bill.
Mr O'Toole: That's fine. I find it rather prescriptive, but since you're charged with governing that municipality -- thank you.
Mr Frank Sheehan (Lincoln): I have one concern. You have a process here for tendering or bidding for space. You open it up every second year?
Ms Dronshek: At this point, it was proposed to be done every third year. The permit is for three years.
Mr Sheehan: The third year, whatever. I have a big problem with peddling a person's bid. Right now, there's a licensee of the space, and it's the policy to circulate and give other people an opportunity to acquire that site, but I make a bid and you give the existing occupant the right to second my bid. I find that manifestly unfair and I couldn't support that in any way, shape or form. The rest of it I don't have any problem with, but I really think that's --
Ms Dronshek: In fact, the street vendors, prior to our obtaining the legislation in 1992, felt they had rights to these spots; therefore, there was a great amount of dissension among them. They were fighting for spots, showing up early in the morning to be the first one there.
Mr Sheehan: I don't have a problem with giving them usage. My problem is that this is public space, and the fact that you're there now doesn't give you rights in perpetuity; otherwise, you should deed the property to him and let him have it and charge him taxes. If there's a tendering process, the tendering process should be a tendering process and the low tender takes it, not giving the other guy a second chance. He doesn't have to do anything -- he just sat there -- and you've effectively given him total ownership of that spot.
Mr Saint: I see where you're coming from. That was a compromise our council made. I believe the way the act is set up is that we "may" provide the right to have a matching bid. That was the way council wanted to go, so we fit that in.
What the bid process is supposed to do is get rid of the speculative value of the spaces because, as you said, it's a public road allowance, but the matching was to at least say, "You've now bid to reflect the value of the space and if you match it, you can continue to carry on." It is a compromise between the person who inhabits the space now, the incumbent, and --
Mr Sheehan: It's not a compromise. You've given him title to it without buying it. I can't support the bill for that reason alone. All the rest of it, I have no problem with.
Mr Saint: As I say, we do build it into the authority, and we hope and expect that our elected reps back in Ottawa will try to do the right thing when they decide how to allocate space.
Mr Sheehan: The tendering process is a long-established business arrangement. It governs in all forms of business. I won't support the bill for that reason. All the rest, I have no problem with.
Mr Tony Ruprecht (Parkdale): First of all, I'm delighted to see that Mr Grandmaître is here to support this bill. I am sure he has looked at all the sections, and he certainly has my confidence because of that. I support this bill.
Interjection.
Mr Ruprecht: No, this has nothing to do with party politics.
I have a question to the parliamentary assistant. What's the precedent for this? Since the ministry has no objection here -- have we done this a couple of times before? Have we done this on a number of occasions?
Mr Shea: The general thrust is one that you're common with. You've seen it applied in your own riding, for example, Mr Ruprecht, through the city of Toronto. There is some fine-tuning the ministry is still proceeding with, but that will be coming forward in the next few months, I think, with the Municipal Act revisions. In the meantime, we have to deal with these kinds of requests as they come forward for this private legislation.
Mr Ruprecht: I understand that afterwards we don't have people to come forward, necessarily, with these items?
Mr Shea: We would hope eventually there'll be some fine-tuning of the Municipal Act, and that will make it unnecessary for them to come forward.
Mr Ruprecht: Good. Thank you very much.
Mr Gilles Pouliot (Lake Nipigon): I too did appreciate the blow-by-blow description of the bill. Madam, with respect, you're to be commended for your diligence.
Having said this, as I listened even more intently, I began to seek your help, for in reading the legislation, the compendium, the intent, the spirit, is not always reflected in laypeople's terms. I'm satisfied that zoning in its integral part is being respected. I'm also satisfied with your ability to reflect the special personality, the circumstances of the daily lives: Bring back the neighbourhood, for instance. Let's hear the different noises associated; people will talk. It opens that up. I think it reflects the ability, and it does not necessarily lead from vendor to haggling. You respect both systems.
There are some people -- and it happens to many of us from time to time, depending on the issue -- who wish to cut all the trees where I live, and there are some people who don't wish to cut any trees. You strike a balance. I'm very happy that you enlisted the support of our colleague, M. Grandmaître, who is obviously elevating the vulgar trade which is lobbying to the most honourable profession, which again is lobbying.
I have no quarrel. I only wish our small village -- we live inland. I live in northwestern Ontario. We've had that ability for years, because we didn't have the opportunity to come seeking the support of people. We live in a bit of a different world. Yes, I am supportive of the bill, and it's a pleasure meeting you.
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M. Gilles Bisson (Cochrane-Sud) : Monsieur Grandmaître, comme vous êtes le père ou le grand-père de la Loi 8, une personne toujours distinguée quand il y a question de la francophonie, je trouve ça quasiment intéressant, que le projet de loi n'est pas en français.
M. Grandmaître : Oui, vous avez absolument raison. Moi aussi, j'ai eu la même surprise. Par contre, je pense qu'on ne devrait pas blâmer le messager, parce que je suis le messager. La loi privée était préparée par le conseil d'ici à Toronto avec l'aide de la municipalité d'Ottawa. Je suis déçu de voir que c'est unilingue, mais la loi s'applique pour les gens bilingues aussi bien que pour les gens unilingues.
M. Bisson : Je soulève la question seulement parce que je sais que vous ne voudriez pas laisser cela passer comme l'ancien ministre responsable des affaires francophones.
M. Grandmaître : Il y a bien des choses que je ne laisse pas passer, mais avec l'expérience on accepte, amèrement peut-être, mais on l'accepte.
Mr Bisson: To the clerk of the committee, I think you understood what I was getting at. I've noticed that more times than not, pretty well every time I've seen a bill through this committee, it is normally printed in English only. Regularly, bills in the House are printed in both French and English. Is that the current practice? Maybe you could clarify it.
Clerk of the Committee (Ms Lisa Freedman): The current practice is that private bills are printed only in English. If there is a request for a bill to be bilingual -- and indeed there was an Ottawa bill a number of years ago that M. Morin sponsored; that was a bilingual bill. Legislative counsel may have something to add.
Mr Pouliot: On the same point -- I don't wish to prolong; there's no need. However, I find, with respect, that your record is not immaculate. It's a family quarrel. As the former minister of francophone affairs, M. Grandmaître, you must find it quite difficult, being the sponsor, sitting where you are now and looking people straight in the eyes, as the former minister responsible for la francophonie in Ontario, soliciting support that the bill would only be printed in English in this case. Thank God I don't have your conscience. I know that I, as the former minister of francophone affairs, would have seen this as a faux pas of the highest order. I'll rest at that.
Mr Grandmaître: Thank God some former ministers are still pure. Let's hope that the next time legislation is introduced in the House, it will be supported not only because it's written in French or in English. I'm supporting this type of legislation because it is good legislation, it means good business for the city of Ottawa, and that was my intention this morning.
The Chair: Are the members ready to vote on Bill Pr34, An Act respecting the City of Ottawa?
Collapsing sections, shall sections 1 to 8 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? Carried.
I declare this order of business closed.
CITY OF OTTAWA ACT, 1996
Consideration of Bill Pr47, An Act respecting the City of Ottawa.
The Chair: Our next order of business is Bill Pr47. We may be able to dispense with some of the preliminary explanations. I would ask the applicants -- we have a number of items on the agenda today -- if we could briefly hear comments.
Mr Grandmaître: Mr Chair, I agree with you that the opening remarks from Ms Dronshek will certainly satisfy the members of this committee that Pr47 speaks for itself. I would call for the vote.
The Chair: If that's acceptable to the applicants? Okay. Are there any comments on behalf of the government from the parliamentary assistant?
Mr Shea: There is no objection from any ministry.
The Chair: Are there any questions from this committee? Seeing none, are the members of this committee ready to vote on Bill Pr47, An Act respecting the City of Ottawa?
Shall sections 1, 2 and 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? Carried.
I declare this order of business closed.
CITY OF OTTAWA ACT, 1996
Consideration of Bill Pr48, An Act respecting the City of Ottawa.
The Chair: Our next order of business is Bill Pr48. Again I would ask the sponsor and the applicants for comments.
Mr Grandmaître: Very briefly, the bill is to provide for the removal of vehicles and objects placed or abandoned on property belonging to the corporation of the city of Ottawa in contravention of any municipal bylaw. Again I don't think a great deal of explanation is needed, and we can go to questions right now.
The Chair: Before that, I ask the parliamentary assistant for municipal affairs for any comments.
Mr Shea: There are no objections from any ministry.
The Chair: The clerk is distributing some information. I have not seen this yet. We have before us a letter of objection, which I draw to the attention of the committee. Any questions from members of this committee?
Mrs Sandra Pupatello (Windsor-Sandwich): You likely have some history with this individual who's sent in a letter. Do you have any comments on how you might address these vending vehicles by the side of the road? Is there a time frame, or have you discussed with him how he might not get towed?
Mr Saint: Although he's objecting to this bill, his vehicle could be removed pursuant to the first bill you passed and pursuant to its predecessor, which was already in effect. That just means if his vending vehicle were there in contravention of our bylaw -- ie, without a permit -- we could remove it. I don't know what his concern is, in so far as he is permitted, and I can't ascertain under what circumstances we'd remove his vehicle.
Mrs Pupatello: I'm presuming this gentleman has an appropriate permit to be doing his business?
Mr Saint: Correct. He has one permit for his space in downtown Ottawa, yes.
The Chair: Seeing no further questions, are the members ready to vote on Bill Pr48, An Act respecting the City of Ottawa?
Shall sections 1, 2 and 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? Carried.
I wish to thank the sponsor and the applicants for your brief comments. I now declare this order of business closed.
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REVIEW OF 1994-95 REGULATIONS REPORT
The Chair: Our next order of business is for this committee to consider its first report on regulations for 1996. With respect to our consideration of the report on regulations, I first wish to introduce Philip Kaye, legislative researcher. I now ask the advice of the committee. Should we consider this discussion in closed session? Any thoughts on that? Hearing no request for closed session, I turn the discussion over to Mr Kaye.
Mr Philip Kaye: Thank you, Mr Chair. Members should have two documents which have been prepared by the legislative research service. One is a memorandum dated May 14, entitled Origins and Mandate of the Standing Committee on Regulations and Private Bills re: Review of Regulations. The other document is the draft report itself, entitled Draft Report on 1994-95 Regulations. There is a covering memo with that draft report, dated May 9.
I thought before reviewing the draft report I would briefly review the origins of this committee and its mandate when it comes to the review of regulations. In 1968, a commission known as the Ontario Royal Commission Inquiry into Civil Rights, also known as the McRuer commission, recommended the creation of a legislative committee on regulations. The commissioner, the Honourable James McRuer, was the recently retired Chief Justice of the High Court of Justice, the trial branch of the Supreme Court of Ontario.
In its Report No. 1, the McRuer commission declared that it was "imperative that some effective form of review by or on behalf of the Legislature should be established." The reference was to the review of regulations. The report went on to say: "The volume of subordinate legislation is very great. It is frequently of more practical importance to the individual than the general framework of statutes under which regulations are passed. It is a primary function of the Legislature to make the laws and it is responsible for all laws it makes or authorizes to be made. A failure by the Legislature to find some specific place in the legislative calendar for supervision of subordinate legislation is in our view a dereliction of duty on its part and a failure to protect the fundamental civil rights of the individual."
The McRuer commission thought its proposed legislative committee on regulations should serve three purposes. They're listed at the top of page 2, the first one being that the creation of such a committee should result in more care being given to the form and contents of regulations; second, a procedural requirement that the committee consult with the relevant ministry before making an adverse report should lead to the immediate rectification of any ill-considered provisions; and third, that debate on committee reports should have a salutary effect on the process of legislation by regulation.
In a book on regulations in Canada entitled Delegated Legislation in Canada, the authors, Dennis Holland and John McGowan, write that McRuer's report was "the major historical impetus towards parliamentary control" over regulations in Ontario.
The following year, 1969, the Legislature acted on the McRuer commission's recommendation and passed an amendment to the Regulations Act. This amendment added a section 12 to the act which provided for the establishment of a standing committee on regulations.
Holland and McGowan, in Delegated Legislation in Canada, say that the addition of section 12 to the Regulations Act was "the most significant modification" to the Regulations Act since 1944 when the act was first passed.
Technically, although the legislation says the committee is called the standing committee on regulations, it has had various names: Originally, the standing regulations committee, and currently the standing committee on regulations and private bills.
When it comes to the mandate of the committee, there are two documents to look at. One is the Regulations Act in section 12, which I just referred to, and the other is the standing orders.
Under section 12 of the Regulations Act, every regulation is permanently referred to the standing committee on regulations. As pointed out by the McRuer commission, the significance of a permanent referral means that at any time the committee may consider a regulation, even if it has been previously looked at.
The committee's mandate when considering regulations is expressed as follows in section 12: "The standing committee on regulations shall examine the regulations with particular reference to the scope and method of the exercise of delegated legislative power" -- and here there's a very important qualification -- "but without reference to the merits of the policy or objectives to be effected by the regulations or enabling statutes, and shall deal with such other matters as are referred to it from time to time by the Assembly."
Section 12 also says that the committee must "from time to time, report to the Assembly its observations, opinions and recommendations." This requirement enables the committee, if it so chooses, to report its observations and opinions about particular regulations without making formal recommendations.
As a result of subsection 12(3), which I just quoted, a review of the merits of regulations -- that is, an evaluation of the need for them and their effectiveness -- is outside the committee's mandate. In this regard, the McRuer commission felt that the proposed regulations committee should not supervise the operations of government departments and wrote that "the merits of the regulations are matters for which the government is responsible to the Legislature." The commission's report also stated that the elimination of policy considerations should permit the committee to proceed in a non-partisan way.
This qualification on the committee's mandate that it cannot look at the merits of regulations is very significant, has been seen as controversial, and two previous regulations committees have looked at this qualification and reached very different conclusions.
Going back to 1973, the regulations committee in April that year supported a change in the mandate and made a one-sentence report as follows: "Your committee recommends to the Legislature that in view of the committee's limited statutory powers, regulations be referred to the committee from time to time for review and examination of their merits."
As I write at the bottom of page 3, it is possible to speculate but difficult to say with any certainty what rationale the committee had for making this recommendation.
Ten years later, the regulations committee looked back at this 1973 report and wrote: "Why such a report was thought to be necessary having regard to section 12 of the Regulations Act, what its purpose was and what, if anything, was done about it is unknown to the present committee."
Our surmise is that nothing more was done and that the matter died along with the committee at the end of the session. That was in 1983.
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In 1988 the regulations committee, as part of its review of the regulation-making process, again looked at this qualification to the committee's mandate. It reached the opposite conclusion of the 1973 committee. In its Second Report 1988, it recommended that committees of the Legislature should be empowered to examine the merits of regulations with one exception: The regulations committee was excluded from this recommendation, as the committee did not believe it was the role of a regulations committee to review policy. The committee did not have the necessary expertise. As well, it was felt that a merits jurisdiction would probably compromise the non-partisanship of the committee. So section 12, which excludes a merits review, has been looked at but still remains as originally drafted and incorporated in the Regulations Act back in 1969.
I mentioned that the other source for the committee's mandate apart from the Regulations Act is the standing orders, and the standing orders list nine guidelines for the committee to consider when reviewing regulations. All these guidelines were recommended by the McRuer commission, and they read as follows:
"(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."
Guidelines (ii), (iii) and (iv), if you look at previous committee reports, are the guidelines that are involved in most committee reports.
"(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."
In practice, the committee applies a further guideline which holds that, "Regulations should be in conformity with the Canadian Charter of Rights and Freedoms," and in 1988 the committee formally recommended that the standing orders be amended to include this guideline.
The committee relies on counsel from the legislative research service to initially examine the regulations to determine which ones, if any, appear to contravene these guidelines. The regulations are published in the Ontario Gazette, which comes out on a weekly basis.
By way of background in terms of the framework for publication in the Ontario Gazette, under the Regulations Act all regulations have to be filed with the registrar of regulations, and the Regulations Act says that regulations come into force on the date of filing unless otherwise stated in them. So the date of filing is very important, and it's the date the committee has used for determining whether or not a regulation is retrospective. If a regulation comes into force prior to the date of filing, it is retrospective in effect. The Regulations Act further says that regulations have to be published in the Ontario Gazette within one month of filing.
After the regulations have been published in the Ontario Gazette, lawyers in the legislative research service conduct an initial review of the regulations, applying the 10 guidelines I've just recited. But before bringing any regulations to the committee's attention, the research service will always have sought an explanation of the problem in question from the relevant ministry or authority. This procedure is in accordance with the standing orders, which say that the committee cannot draw the attention of the House to a regulation 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 thinks fit."
That's an overview of why the committee was established, the limitations on its review and the procedure followed by the research service in reviewing the regulations, which leads to the draft report on the 1994-95 regulations. This report is divided into three parts. The first part is an overview of the committee's mandate, referring to section 12 and the relevant standing order, 106(k). The second part of the report is a statistical section. It provides statistics on regulations by act and ministry and also statistics on the number of regulations filed each year during the past 10 years. The third part of the report deals with the reported regulations and is organized by ministry and guideline violated.
Part I, the introduction, notes that this report covers regulations filed during most of 1994 and all of 1995. It does not cover all of 1994. It excludes the first 100 regulations from 1994, because they were covered by the last regulations committee report, entitled Third Report 1994.
On page 1, there are brief references to section 12 of the Regulations Act and the standing order. I don't think it's necessary to review that again.
The statistical portion of the report starts on page 2 and the chart gives information on the number of regulations filed during each of the past 10 years.
Between 1986 and 1994, the average annual number of regulations was 783, with the greatest variation from this average taking place in 1993 when 953 regulations were made. The question arises, why was there such a spurt in 1993?
A significant factor for this growth in 1993 was the exercise of regulation-making power under 22 health profession acts which had been passed in 1991, such as the Dental Technology Act and the Dietetics Act. Altogether, 119 regulations were made under these 22 acts in 1993.
In 1995, the total number of regulations dropped to 549. This figure is the lowest for the past decade and represents a drop of 30% from the 1986-94 average. This drop to 549 occurred during a year which saw an election and a change of government. If you go back to 1985, other election years with changes of government -- 1985 and 1990 -- also saw fewer regulations, although approximately 150 more than in 1995.
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Next there is a brief review regarding the regulations filed in 1994 and 1995. With respect to the 1994 regulations, 20 acts had at least 10 regulations under them and generated one half of all the regulations. Appendix C to the draft report lists these 20 acts. I should mention that altogether there are six appendices to the report: The first appendix reproduces section 12 of the Regulations Act; the second contains the standing order with the guidelines for the committee; and appendices C, D, E and F have charts listing the acts that generated 10 or more regulations in 1994 and 1995, as well as listing all the ministries and the number of regulations for which each was responsible during those years.
Going back to the statistics for 1994, the top five acts in terms of generating regulations were the Planning Act, the Crop Insurance Act, the Highway Traffic Act, the Provincial Offences Act and the Health Insurance Act.
Forty-three per cent of the regulations fell under the jurisdiction of three ministries: the Ministry of Health, the Ministry of Municipal Affairs and Housing and the Ministry of Agriculture, Food and Rural Affairs.
With respect to 1995, 11 statutes, compared to 20 in 1994, had 10 or more regulations made under each, accounting for one half of the total regulations. As in 1993 and 1994, the Planning Act, the Crop Insurance Act and the Highway Traffic Act generated more regulations than any other act.
Once again, a significant number of regulations, slightly over 50%, fell under the authority of three ministries: the Ministry of Municipal Affairs and Housing, the Ministry of Agriculture, Food and Rural Affairs, and the Ministry of Health.
The next part of the report is really the nuts and bolts of the report. It's entitled "Regulations Reported" and notes that letters were sent by the legislative research service to 14 ministries and Management Board inquiring about 26 of the regulations. After examining the responses, the research service has decided to include nine regulations in this draft report for the committee's consideration.
The nine regulations involve contraventions of the following guidelines:
First, "Regulations should be in strict accord with the statute conferring of power...." One regulation is reported here as having prescribed compensation for certain individuals under the Substitute Decisions Act in the absence of statutory authority to do so.
The second guideline reported is, "Regulations should be expressed in precise and unambiguous language." Four regulations are reported. In two cases lists of items are ambiguous, and in the remaining two cases there is ambiguity as to when certain provisions come into force and in a reference to a section of the authorizing act.
The third guideline reported is, "Regulations should not have retrospective effect unless clearly authorized by statute." Four regulations are reported here. They came into force prior to the date on which they were filed with the registrar of regulations. The unauthorized retrospectivity ranges from just four days and eight days to approximately one and a half months and four months.
I note in the covering memo to the draft report that in almost every case the ministry or board in question has, in effect, agreed that the reported regulation may have violated the committee's guidelines. There's very little controversy in the report. There's one exception with respect to a regulation under the Interpretation Act which is discussed on pages 8 to 10.
This regulation prescribes a fee payable by a municipality in respect of certain assessments carried out in accordance with the Assessment Act. The regulation was filed with the registrar of regulations on July 5, 1994, but the fees came into force a few days earlier, on July 1, 1994. The retrospectivity in question here is very slight, only four days. This may go back to the fact that the criteria the committee is applying have been characterized as highly technical. As I said, the violation here is quite slight.
The regulation was made under the Interpretation Act, but there is no authority in the Interpretation Act to make regulations retroactive, so a letter was sent to the ministry seeking an explanation. The ministry answered back that the intention was not to make the regulation retrospective, but just to make it prospective. It was made by cabinet on June 23, 1994, and through some "unforeseen delay" was not delivered to the registrar's office until after the July 1 holiday weekend. The ministry also said that there was no way to change the wording of the regulation once it had been made. In these circumstances, it concludes that the committee's guideline on retroactivity has not been violated. In concluding that there has been no violation, the ministry highlighted the date of making the regulation, June 23, 1994, as opposed to its date of filing, July 5, 1994. Indeed, the ministry suggested, "Perhaps the rule should be changed to take into account the date it was made by cabinet, even though it would not take effect until filing."
As noted at the bottom of page 9, the date of filing has a statutory importance, found in section 3 of the Regulations Act, which says, "Unless otherwise stated in it, a regulation comes into force and has effect on and after the day upon which it is filed."
The draft report at the bottom of page 9 continues:
"We wish to emphasize that we are established as a committee under the authority of the Regulations Act and accordingly we believe that our guidelines should be interpreted in accordance with that act. Predecessor committees have taken the same approach and have always based their interpretation of the retroactivity guideline on the date of filing. We see no reason to do otherwise.
"This approach is reinforced by statutory provisions, such as the one mentioned above in the Assessment Act. In order to authorize retroactivity, subsection 2(3) of that act permits a regulation to be `effective with reference to a period before it was filed.'
"We therefore conclude that O Reg 446/94 `technically' violates our guideline on retrospectivity -- albeit by only four days."
This is the only case where the ministry is really challenging head-on the research service's interpretation that the committee's guidelines have been violated.
I should mention just one other regulation, where an amendment to the statute followed from the letter to the ministry legal branch, and that's the first reported regulation under the Substitute Decisions Act discussed at the bottom of page 5 and also on page 6.
Section 1 of that regulation stated that for the purposes of subsection 40(1) of the Substitute Decisions Act, "a guardian of property" or "an attorney under a continuing power of attorney" was entitled to compensation according to a particular formula. But as I note at the top of page 6, the part of section 1 of the regulation which prescribed compensation for "an attorney under a continuing power of attorney" appeared to be without statutory authority. A letter was sent to the office of the public guardian and trustee, which responded that a review of the Substitute Decisions Act had been announced by the government in July 1995. That office was conducting the review, which would include the committee's concern, and indeed the office wrote, "A statutory amendment in this regard is a possibility."
The House has since passed Bill 19, the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996. One of the amendments in Bill 19 to the Substitute Decisions Act directly addresses the above issue and provides authority to make regulations which prescribe a fee scale for compensating "attorneys under continuing powers of attorney." That amendment is found in a new clause 90(c) to the Substitute Decisions Act.
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That basically is an overview of the report, highlighting the one regulation which involves very a technical violation, unauthorized retrospectivity by four days, where the ministry is saying maybe the committee should interpret the guidelines somewhat differently, and also noting at least one case where a statutory amendment has been made to correct the problem reported.
The Chair: Thank you, Mr Kaye. This committee may wish to have questions for Mr Kaye. There were several areas raised. First we have now a historical overview of the regulations process; we have an explanation of the mandate of the regulations side of this committee, and then, lastly, we do have a draft report on the 1994-95 regulations before us. This is marked "Draft" and also marked "Confidential; for committee use only," until it is tabled in the House if we send it forward. So I would ask for comments or questions for Mr Kaye.
Mr Bruce Smith (Middlesex): Thank you very much for your presentation. It was certainly very concise. I guess my question is more one of clarification. How do we normally address or dispose of -- perhaps senior members of this committee can advise as well -- regulations as the one you've identified through the Ministry of Finance? Notwithstanding the four-day period or the argument behind that, how do we normally address that type of issue?
Mr Kaye: As I mentioned, the committee is empowered to express its observations, opinions and recommendations, so if the committee believes there has been a violation of one of the guidelines, the committee in its report can simply observe that a violation has occurred, that the ministry in question was contacted, this is the response of the ministry and this is the committee's response to the ministry's response. So it can simply state what has occurred in terms of the exchanges between the committee and the ministry and the committee's reaction.
The committee also has the power to make recommendations regarding regulations, and this power, in terms of making a formal recommendation, has not been exercised that often. If, for instance, the committee felt that the guideline on statutory authority had been violated, for instance that a regulation or part of a regulation had been made without statutory authority, then the committee could recommend that the statute be amended to authorize the regulation as it was written, the committee could recommend alternatively that the regulation be amended so that it was in accordance with the statute, or the committee could simply observe that the regulation is not authorized by the statute and just leave it at that.
That happened, for instance, in the Third Report 1994, the last report on regulations from this committee with respect to a regulation made under the Ministry of Health Act, where the Ministry of Health agreed with respect to part of this regulation that, "there does not appear to be any authority in this regard," and the committee included that in the report but did not make a formal recommendation that said, "amend the regulation so that it is authorized by the statute, or amend the statute so that it authorizes the regulation."
So there are these differing approaches which the committee can take, whether or not it simply wishes to observe that there is this problem or to go further and make a formal recommendation. When a regulation is reported for being retrospective without clear statutory authority, generally the committee simply observes that, because the regulation has already been in effect for quite a while by the time it reaches the committee and it's difficult to foresee what kind of formal recommendation could be made.
Clerk of the Committee: Just one additional procedural route that this committee may wish to choose: Any committee that tables a report may require, within 120 days, that the affected government ministries respond to the report, and I believe that response has to be tabled in the House. So that's always open to any committee to specifically ask for a response to any part of the report from any of the ministries affected by the report.
Mr Mario Sergio (Yorkview): Would this be then the appropriate thing to do at this particular stage?
Clerk of the Committee: It's totally up to the committee in terms of which avenue they wish to choose.
Mr Sergio: Is this the first time that the committee's dealing with such a case? There were no other cases previous to this one here?
Mr Kaye: Which case in particular?
Mr Sergio: The discrepancy between the ministry and yourself, the staff?
Mr Kaye: The one in this draft report?
Mr Sergio: Yes.
Mr Kaye: There have been previous reports where there has been a difference of opinion.
Mr Sergio: So this is not the first time then?
Mr Kaye: No, it is not.
Mr Sergio: How have the others been resolved?
Mr Kaye: Generally, it hasn't happened that often.
Mr Sergio: Have they been forgotten over time or there was a conclusion or how did they end up?
Mr Kaye: I guess there are two ways to look at it in terms of what's happened. One is what has the committee done, has the committee decided to still conclude that there has been a violation of the regulation? When the draft report is presented to the committee with the draft giving one view of the guideline being violated and the ministry saying, "No, it hasn't been violated," the committee can say, "We agree with the ministry that the guideline has not been violated," and take this out of the draft report. That's one way the committee can deal with it.
Clerk of the Committee: I think in the past we have discussed -- although Philip would have to confirm whether we've done it, there have been a number of times where there has been a contravention of the committee's rules and it's been pointed out to the ministry and the ministry in effect has done nothing about it. We did have a discussion -- I can't remember how many years ago -- about what do we do with that, and I think one of the suggestions was that in the next report we would comment on what has actually happened to the regulations in the past report, and try to do a follow-up system to make sure that those that had actually contravened had cleaned up the regulation. I think that was something that was informally discussed, but I'm not sure if that was actually implemented in the report.
Mr Kaye: Yes. Even in the cases where the ministry agrees that there's been a violation, they may not take immediate action. If you look at the last committee report, the kind of violation where the ministries tend to act very quickly involves an error in the French version of the regulation, you will find that an amendment to the regulation is made very quickly.
In other cases, where the ministry agrees there has been a violation, it's not unusual to see a response that says, "The next time the regulation is amended, we will address the committee's concern."
In some cases, again referring to this last report, where the committee observes that part of the regulation has been made without statutory authority and the ministry agrees, the committee has not recommended that the regulation be amended and the ministry has not undertaken to change the regulation or the statute. So you simply have an observation that there is a problem, and no action is anticipated.
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Mr O'Toole: I appreciate the report -- very thorough -- and all the time you put into it. Looking at the statistical aspect of it, it's sort of legislation by regulation. Are we moving toward that kind of methodology? Even Bill 20 -- I shouldn't say that openly -- some of the guidelines or regulations are really where all the meat is; the rest is strictly the blossom on the tree. Are we moving -- that's my question -- in your sense, to legislation by regulation?
Mr Kaye: It's hard to answer that by simply looking at the number of regulations.
Mr O'Toole: Yes, that's true. It doesn't tell you the whole story.
Mr Kaye: There has been a reduction since 1994, but even assessing the extent to which there's legislation by regulation between 1986 and 1994 and the extent to which it currently exists, you would have to go beyond the number of regulations or the number of pages of regulations and assess substantively what the regulation is dealing with.
Mr O'Toole: With that, just a quick kind of interplay here, if I may, of questions. Every time a regulation is modified or amended, does it show up in the statistics?
Mr Kaye: Yes. In order to change a regulation, you have to make a new regulation.
Mr O'Toole: So it shows up in the statistics. It may not change anything more than a date or something like that.
Mr Kaye: That's right.
Mr O'Toole: Furthermore, the statistics in themselves don't really tell you the whole story. What I really would like to ask is, you tell me that somebody in your capacity, or maybe it's not you, reads all of these things and compares them to the actual statutes and their conformity with the regulation? Is this really what you've done to come up with this report?
Mr Kaye: Yes, there are --
Mr O'Toole: Holy Jesus. Do you like playing chess? Absolutely tedious. I can't imagine it.
Mr Kaye: All the lawyers in the legislative research service as one of their responsibilities have to review the regulations published in the Ontario Gazette for this committee.
Mr O'Toole: And their conformance to our nine --
Mr Kaye: Correct. Yes, to those guidelines.
Mr Sheehan: Regardless of the source? Just every regulation?
Mr Kaye: Every regulation has to be reviewed.
Mr Sergio: So could we request an answer from the ministry to expedite this matter here? Mr Chairman, I would suggest that, if it's appropriate at this particular time.
The Chair: You're calling for a motion to pass? I have one final question and then you have -- Mr Shea.
Mr Shea: No, I want to make a motion.
The Chair: The motion from Mr Shea I suspect may be the one that --
Mr Sergio: Mr Chair, I'd like him to place his motion before I place mine.
The Chair: Mr Shea, the motion?
Mr Shea: No, let him go ahead.
Mr Sergio: I was going to take the advice of the clerk and request an answer from the ministry to this committee here, and then take it from there.
Mr Shea: Come back and have some more discussions on this.
Mr Sergio: We would have to defer it. It would have to be deferred until we get the answer anyway.
Clerk of the Committee: Just to explain the couple of options, the request for a response from the ministry within 120 days would be after the report is actually tabled, so this report would still have to be adopted by this committee and tabled. I suppose one other route that we haven't discussed would actually be to not vote on this report yet and call in the ministry and have a discussion with the ministry, and then decide at that stage does the committee want to put a recommendation into the report or do we want to take it out of the report altogether. That would be open for the committee to do also.
Mr Sergio: Couldn't we defer it until we get the answer from the ministry instead of approving it and then get the answer?
Mr Shea: Since we're going to be cancelling next week's meeting, if we're going to defer it, why don't we demand every ministry be here and answer all the questions that everybody may have of them? I don't particularly want to hear them because I think the report's quite adequate. I think we should simply approve the report and table it and report it before the House, but I respect Mr Sergio's request for more information and if he'd like to have it, then I would suggest he may want to move deferral. That would supersede my motion. We could defer it and he could also add to his motion that he ask all ministries to be here to answer all questions.
The Chair: I think in deferring it -- maybe the clerk could explain just what that would involve. I don't think it would be as onerous as --
Mr Sergio: I'm not really hung up on approving it or deferring it. I don't mind to approve it and still get an answer from the ministry.
Mr Shea: I don't want to see you without a chance to raise questions that you'd like to raise. I want to give you that opportunity.
Mr Sergio: On the other hand, it may be very difficult to get all the ministries in here and go through a number of questions.
Mr Bisson: That's not the issue. If we called them, they'd have to come.
Mr Sergio: I would rather have something in writing.
Mr Bisson: I particularly am supportive of Mr Shea. I think the report is fairly clear. I've had an opportunity to read through it. I think it's pretty concise. I wouldn't have any problem voting in favour of this at this point, but if you want to have the ministries come forward that's our right as a committee and they'd have to be here. It's as simple as that. I'm in the committee's hands. I really don't care; either way.
Mr Sheehan: I've made the motion to approve and report out to the House. Mr Sergio may make a motion to defer, which would supersede, and whatever else he'd like to do beyond that.
The Chair: Okay. We have a motion before the committee. I would ask the clerk for the procedure.
Clerk of the Committee: Just to clarify right now, I believe that the committee has agreed that we are going to deal with Mr Shea's motion that we adopt the report and report it to the House and then afterward, if there is another motion asking for a response, we can deal with that. Mr Shea has moved that the report be adopted and reported to the House.
The Chair: Any discussion on this motion? All in favour of this motion? Those opposed to this motion? I declare that motion passed.
Is there a subsequent motion?
Interjection.
The Chair: Do you wish to make a motion to that effect?
Mr Sergio: I'm satisfied with the presentation, but I would like to have a response addressing some of the concerns from the ministry, if it's appropriate; otherwise we'll let it go.
Mrs Pupatello: Specifically the Ministry of Finance?
Mr Sergio: Specifically.
The Chair: All in favour of this request of a written response from the ministry? Opposed?
Before we adjourn, I would point out that this draft report is marked "Confidential; for committee use only." I don't think we need this handed back. We're all MPPs here. As also indicated, there is no meeting next week. Business closed.
The committee adjourned at 1128.