In Ontario, as in the other jurisdictions, there is a fundamental distinction between law-making activity and the “coming into force” of a law. Laws are created through the passage of Acts and the issuance of regulations (which are also known as “subordinate” or “delegated” legislation). However, legislation does not become enforceable and binding on persons until it comes into force.[1] In Ontario, the principles applicable to the coming into force of Acts and regulations are found mainly in the Legislation Act, 2006.[2]

This paper examines the ways in which Acts and regulations in Ontario may come into force and become binding, and discusses select technical matters relating to these processes.

As noted above, an Act has no legal effect and is not binding on the public until it comes into force. However, once a bill is enacted, it is recognized by the courts as law and may be considered when interpreting other legislation.[3]

In addition, the Legislation Act, 2006 provides that the commencement provisions and short title provisions in an Act are deemed to come into force on the day the Act receives Royal Assent, regardless of when the Act is specified to come into force.[4] The Legislation Act, 2006 also provides that a power conferred by an Act to make regulations or appointments or do any other thing may be exercised at any time after Royal Assent even if the Act is not yet in force. Until the Act comes into force, the exercise of such a power has no effect except as may be necessary to make the Act effective when it comes into force.[5]

On e-Laws, the website providing digital access to official copies of Ontario’s statutes and regulations, an Act or section thereof that is not yet in force is highlighted in grey.[6]

Overview

In Ontario, after a bill is carried on three readings in the Legislative Assembly, Royal Assent occurs when the Lieutenant Governor agrees to the bill on behalf of the King. The Clerk of the Assembly must indicate the date of Royal Assent on the Act, and the date of assent forms part of the Act.[7] A bill that receives Royal Assent and is endorsed by the Clerk of the Assembly as having received Royal Assent is official law.[8]

Each Act contains a commencement provision dictating the manner in which the Act will come into force.[9] On e-Laws, commencement provisions are omitted from the consolidated versions of statutes but can be found in the source law versions.[10]

An Act may come into force on one or a combination of the following dates:

• on the date of Royal Assent;
• on some other date(s) specified in the Act; or

• on a date set out in a proclamation subsequent to Royal Assent.

A Legislature may choose to delay commencement of a law for many reasons, such as to await certain events or to give notice to the public. A delayed commencement also allows time to prepare for the administration of an Act, e.g., by holding consultations and preparing regulations and explanatory materials.[11]

Conversely, in order to ensure that a statute will have retroactive application, a Legislature may deem it to have come into force on a date prior to commencement.[12]

Further, commencement may never actually occur, as a statute or section thereof may be repealed before it is ever brought into force.[13]

Time of Commencement of Acts

Whatever method is used to set the commencement date, an Act comes into force at the first instant of the day on which it comes into force, unless otherwise provided.[14]

However, unless otherwise provided, an Act that comes into force on Royal Assent is not effective against a person before the earlier of the following times:

1. When the person has actual notice of it.
2. The last instant of the day on which it comes into force.[15]

In Force on Royal Assent

Act is Silent

Prior to the passage of the Legislation Act, 2006, legislation entered into force upon assent only when this was expressly provided for in the legislation itself.[16]

Now, section 8(1) of the Legislation Act, 2006 states that “unless otherwise provided, an Act comes into force on the day it receives Royal Assent.”[17] Therefore, silence as to the method of commencement of an Act means that the Act enters into force upon assent. 

Act Specifies Royal Assent

Despite s. 8(1) of the Legislation Act, 2006, Acts generally are not silent with respect to their coming-into-force date. It is common for an Act to be brought into force by way of a provision stating: “This Act comes into force on the day it receives Royal Assent.” See, for example, s.11 of the Ontario Society for the Prevention of Cruelty to Animals Amendment Act, 2015.[18]

In Force on a Fixed Date

The commencement provision may provide that the Act comes into force on a date or dates either before or after the date of Royal Assent. 

Fixed Date after Royal Assent

In some cases, a commencement date subsequent to the date of assent is specified. The expression “this Act comes into force on (date)” is typically used.

In other cases, the coming into force date is linked to the date of Royal Assent; since the date of Royal Assent is unknown at the time of drafting, it cannot be specified. For example, the Modernizing Regulation of the Legal Profession Act, 2013 provides that certain sections come into force “on the later of April 7, 2014 and the day this Act receives Royal Assent,” while other sections come into force “three months after the day this Act receives Royal Assent.”[19]

A commencement date may also be linked to the coming into force of another provision. For example, the commencement provision of the Smart Growth for Our Communities Act, 2015 provides that s. 18(2) came into force 121 days after s. 18(1) of the Act was proclaimed in force.[20]

It is possible for legislation to specify that provisions, if unproclaimed, will take effect on a particular date. The Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act, 1999, for example, stated that provisions that had not been proclaimed in force by March 1, 2000 came into force on that day.[21]

Fixed Date before Royal Assent – Retroactivity

There is a presumption that legislation is not intended to be retroactive. However, this presumption can be rebutted by “express words or by necessary implication.”[22]

This means that even where an Act does not expressly state that it is meant to apply retroactively, circumstances may make it clear that it is intended to apply to facts that predate the legislation. However, express provisions are often included in legislation; this is because the presumption against retroactivity is strong.[23]

For instance, the Keeping Students in Class Repeal Act, 2022 received Royal Assent on November 14, 2022. Its commencement provision indicates that it is “deemed to have come into force on November 3, 2022.”

There are limits, however, on the power of a Legislature to give retroactive effect to statutory provisions. The Canadian Charter of Rights and Freedoms limits the power of a Legislature to create retroactive (or ex post facto) criminal offences and gives offenders the benefit of the lesser punishment where the penalty for an offence is changed after it is committed.[24]

In Force on Proclamation

General

An Act may contain a provision that reads, “This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.”[25] Under the Legislation Act, 2006, procedurally, when an Act authorizes the Lieutenant Governor to do anything by proclamation, the proclamation “shall be issued under an order of the Lieutenant Governor in Council recommending that the proclamation be issued.”[26]

Amending or Revoking a Proclamation

Under the Legislation Act, 2006,

a proclamation that brings an Act into force may be amended or revoked by a further proclamation before the commencement date specified in the original proclamation, but not on or after that date.[27]

For instance, a proclamation was issued on January 23, 2013, naming March 1, 2013 as the date subsection 5(17) of Schedule 2 to the Open for Business Act, 2010 would come into force.[28] A second proclamation was issued on February 27, 2013 changing the in force date to September 1, 2013.[29] Before that date, a third proclamation was issued on June 12, 2013 revoking the proclamation.[30]

A further example is the proclamation issued on April 18, 2018 naming a commencement date of July 1, 2018 for the Smoke-Free Ontario Act, 2017.[31] This proclamation was revoked on June 29, 2018.[32] A second proclamation was issued on October 17, 2018 proclaiming most of the Act in force on that date.[33]

A proclamation that specifies different commencement dates for different provisions may be amended or revoked with respect to a particular provision before the commencement date specified for that provision, but not on or after that date.[34]

Proclaiming Part of an Act

There is no requirement that all sections of an Act be proclaimed in force at the same time.[35] Rather, the Legislation Act, 2006 states that

if an Act provides that it is to come into force on a day to be named by proclamation, proclamations may be issued at different times for different parts, portions or sections of the Act.[36]

Some Acts give specific authority for a proclamation to “apply to one or more…provisions, and proclamations may be issued at different times with respect to any of those provisions.”[37]

Occasionally, the Legislature may restrict the government’s discretion and require that an Act be brought into force in its entirety. The Ministry of Energy Act, 2011 contains the following commencement provision:

14. (1) The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

(2) A proclamation under subsection (1) may only be made in respect of the entire Schedule.[38]

Judicial Consideration of Partial Proclamation of an Act

In Reference re Criminal Law Amendment Act, the Supreme Court considered whether the Governor in Council exceeded its power by proclaiming an Act in force, but declining to proclaim certain subsections and sub-subsections of that Act.[39] The majority concluded that the statute granted the executive the discretion to proclaim or not proclaim sections and subsections, and that the Court should not examine the manner in which the executive exercises that discretion.

Pierre-André Côté notes that “as each statute forms a whole, enactment in stages may alter its meaning,” but goes on to say that “it is doubtful, however, except in the case of a flagrant abuse of power by the executive, that the courts would intervene to invalidate a proclamation or order on the grounds that the effect of enactment by stages was to change the meaning of the statute.”[40]

However, Ruth Sullivan notes that “it is not at all clear that the Supreme Court of Canada would take the same deferential attitude today [as it did in Reference re Criminal Law Amendment Act]. The power to bring legislation into force, like any other delegated authority, is subject to the limits fixed by Parliament both express and implied.”[41]

What Happens When an Act or Provision Remains Unproclaimed?

In the United Kingdom, it has been suggested that “whenever Parliament passes an Act it intends, unless the contrary intention appears, that all its provisions shall be brought into force within a reasonable time” and this matter may be subject to judicial review.[42]

However, Sullivan notes that, while the exercise of the power to proclaim is subject to judicial review, the possibility of review on the non-exercise of that power is “more doubtful.”[43]

Ontario has codified a process for the repeal of legislation that remains unproclaimed for nine years or more.[44] The Legislation Act, 2006 requires the Attorney General to table an annual report in the Legislature listing all unproclaimed Acts and provisions that were enacted nine years or more before December 31 of the preceding calendar year and which remain unproclaimed on that date.[45]

An Act or provision listed in this report is automatically repealed on December 31 of the calendar year in which the report is tabled unless:

• it comes into force on or before December 31 of that calendar year; or
• during that calendar year, the Legislative Assembly adopts a resolution that it not be repealed.[46]

The Attorney General must publish a list of the Acts and provisions repealed in this way each year on the e-Laws website.[47] For example, in 2012, three unproclaimed Acts were repealed: the Collision Repair Standards Act, 2002, the Sustainable Water and Sewage Systems Act, 2002, and the Rescuing Children from Sexual Exploitation Act, 2002.[48] In 2020 certain sections of the Not-for-Profit Corporations Act, 2010 were repealed after remaining unproclaimed for over nine years.[49]

Varied In-Force Dates

Two or more of the above “in force” methods may be incorporated in the same Act such that different provisions of the Act come into force on different dates.[50]

The Legislation Act, 2006 defines a “regulation” as a regulation, rule, order or by-law of a legislative nature made or approved under an Act of the Legislature by the Lieutenant Governor in Council, a minister of the Crown, an official of the government or a board or commission all the members of which are appointed by the Lieutenant Governor in Council, but does not include,

a by-law of a municipality or local board as defined in the Municipal Affairs Act,

an order of the Ontario Land Tribunal.[51]

Some Acts specify that certain instruments are not regulations within the meaning of Part III of the Legislation Act, 2006 or that Part III does not apply to certain instruments.[52]

Filing of Regulations

The Legislation Act, 2006 provides that a regulation that is not filed has no effect.[53]

Regulations must be filed with the Registrar of Regulations.[54] A regulation that is filed with the Registrar of Regulations under Part III of the Legislation Act, 2006 (or a predecessor of that Part) is official law.[55] If the regulation was made by the Lieutenant Governor in Council, a certified true copy of the regulation must be filed. If it was made by any other person or entity, the original, signed regulation must be filed. Since 2020, upon request and with the Registrar’s acceptance, a regulation in electronic format may be filed.[56]

Filing must occur within four months after the making of a regulation or after the date of its approval if approval of the regulation is required. An exception, however, applies if the regulation-making authority and regulation-approving authority, if any, give approval for a later filing.[57] A regulation that is not filed has no legal effect.[58]

Publication of Regulations

Every regulation must be published:

• promptly after its filing on the e-Laws website;[59] and
• in the The Ontario Gazette within one month after its filing or in accordance with such other timelines prescribed by regulation.[60]

These publication requirements may have significant legal consequences in respect of enforceability. This is because unless the regulation itself or its authorizing Act provides otherwise, a regulation is not effective against a person before the earliest of the following times:

• when the person has actual notice of it;
• the last instant of the day on which it is published on the e-Laws website; and
• the last instant of the day on which it is published in The Ontario Gazette.[61]

Statutory Provisions on Bringing a Regulation into Force

Some Acts impose requirements or restrictions on the timing of the coming into force of regulations made under them. For example, the Insurance Act sets criteria for when regulations dealing with certain ratios, percentages, amounts, and calculations may come into force. It states that such regulations do “not come into force until the day thirty days after it is filed with the Registrar of Regulations or such later day as may be set out in the regulation.”[62] Another example is s. 7(5) of the Endangered Species Act, 2007 which provides that: “a regulation under this section comes into force on the day it is filed.”[63] 

The Emergency Management and Civil Protection Act provides that an order made under certain sections takes effect immediately upon its making (or, if it so provides, may be retroactive to a date specified in the order).[64]

As with an Act, each regulation contains information on how it will come into force.[65] On e-Laws, these provisions are omitted from the consolidated versions of regulations, but can be found in the source law versions.[66] On e-Laws, a regulation or section thereof that is not yet in force is highlighted in grey.

Silence

Subsection 22(2) of the Legislation Act, 2006 provides that a regulation comes into force on the day on which it is filed, unless the regulation or its authorizing statute provides otherwise. Therefore, if a regulation and authorizing Act are silent as to the in force date of a regulation, it takes effect upon the date of filing.

Upon Filing

Despite s. 22(2), Ontario regulations are generally not silent with respect to their in-force dates. It is common for a regulation to state that it comes into force on the date of filing. For example, O. Reg. 637/21 made under the Employment Standards Act, 2000 provides that it “comes into force on the day it is filed.”[67]

In Force on a Fixed Date – Prospective

As with an Act, a regulation may provide in a straightforward manner that it comes into force on a specified date(s) in the future. For example, O. Reg. 236/14 made under the Insurance Act, which was filed on November 27, 2014, set out a commencement date of January 1, 2015.[68] Similarly, O. Reg. 494/22 made under the Health Insurance Act, which was filed on September 29, 2022, set out a commencement date of April 1, 2023.[69]

Alternatively, a regulation-maker may seek to ensure that a regulation will come into force no earlier than a particular date. For example, a regulation made under the Child and Family Services Act, which was filed on June 2, 2017, stated that it came into force “on the later of July 1, 2017 and the day it is filed.”[70]

In some cases, the coming into force date is linked to the filing date of the regulation. For instance, a 2015 regulation made under the (now repealed) Ontario College of Trades and Apprenticeship Act, 2009, provided that it would come into force “two years after the day it is filed.”[71]

Further, although regulations are not proclaimed into force, they may provide that they come into force when an Act or part of an Act is proclaimed in force. For example, O. Reg. 132/14 made under the Provincial Offences Act provided in s. 3 that it would come into force “on the later of the day subsection 1(40) of Schedule 4 to the Good Government Act, 2009 comes into force and the day this Regulation is filed.” Similarly, the coming into force date may be linked to the coming into force date of an Act or provision of an Act. O. Reg. 486/22 made under the Public Hospitals Act provides in s. 2 that it will come into force “on the later of the day that is 60 days after the day section 2 of the More Beds, Better Care Act, 2022 comes into force and the day this Regulation is filed.”

In Force on a Fixed Date – Retroactive

As with an Act, a regulation or part of a regulation may be deemed to have come into force on a retroactive date. There are different ways of expressing the retroactive date.[72]

Sullivan notes that “it is presumed that the legislature does not intend to delegate a power to legislate retroactively or retrospectively or to interfere with vested rights.” However, this presumption can be rebutted by express or implied authorization. [73] An Act may expressly authorize the making of regulations that are deemed to have come into force on a day before the regulation is filed. [74]

An Act may grant wide or limited discretion for regulations to operate retroactively. For instance, one formulation for a broad discretion for retroactive regulations can be found in the Land Transfer Tax Act: “A regulation is, if it so provides, effective with reference to a period before it was filed.”[75] Another example of broad authorization for retroactive regulations can be found in the Animal Health Act, 2009:

If a regulation provides that a provision of the regulation is deemed to have come into force on a day before the regulation is filed, the provision is deemed to have come into force on that day.[76]

The Employment Standards Act, 2000 specifies that “A regulation referred to in subsection [141](2.2) that specifies a date may specify a date that is earlier than the day on which the regulation is made.”[77]

The Education Act provides an example of authority for retroactive regulations limited to regulations made only under a specified provision and for a specified purpose, as follows:

A regulation made under subsection [58.1](2) may provide that it shall be deemed to have come into force and taken effect on the day of filing or at such earlier or later time as is stated in the regulation, for any purpose related to representation on or elections to a district school board or school authority.[78]

Further, a statute may authorize retroactivity only to a specified date. A provision of the Planning Act relating to transitional matters provides, for instance, that,

a regulation made under clause [70.5](1)(a) may be retroactive to December 12, 2005.[79]

Assorted In Force Dates

A regulation can establish different in force dates for different provisions. For example, O. Reg. 166/14, made under the Ontario Disability Support Program Act, 1997, and filed on August 15, 2014, provides:

(1) Subject to subsections (2) and (3), this Regulation comes into force on the day it is filed.

(2) Sections 1, 2, 3, 4, 6 and 7,

(a) come into force on September 1, 2014, if this Regulation is filed on or before September 1, 2014; and

(b) are deemed to have come into force on September 1, 2014, if this Regulation is filed after September 1, 2014.

(3) Sections 5 and 8 come into force on March 1, 2015.[80]

Can Regulations be Made under Unproclaimed Legislation?

The Legislation Act, 2006 states that where an Act confers regulation-making powers, such powers “may be exercised at any time after Royal Assent even if the Act is not yet in force.”[81]

Thus, regulations may be made under the authority of an unproclaimed (or otherwise not yet in force) Act; however, in general, the exercise of the regulation-making powers will have “no effect” until the Act comes into force.[82]

The ability to make regulations under an Act not yet in force can be useful where the Act provides that some of its elements will be set out in a regulation. Regulations that are made before an Act comes into force allow the Act to be fully operational once it does come into force.[83]