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.
CERTIFIED GENERAL ACCOUNTANTS ASSOCIATION OF ONTARIO
ACT, 2000
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?
Interjection.
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.
FIRST REPORT ON REGULATIONS, 1999
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?
1020
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.
1030
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.
1040
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.
AYES
Bisson.
NAYS
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.
