REVIEW OF REGULATIONS REPORTS, 1989 AND 1990-92
CONTENTS
Wednesday 1 December 1993
Review of regulations reports, 1989 and 1990-92
STANDING COMMITTEE ON REGULATIONS AND PRIVATE BILLS
*Chair / Présidente: Haeck, Christel (St Catharines-Brock ND)
*Vice-Chair / Vice-Présidente: MacKinnon, Ellen (Lambton ND)
*Eddy, Ron (Brant-Haldimand L)
*Fletcher, Derek (Guelph ND)
*Hansen, Ron (Lincoln ND)
Hayes, Pat (Essex-Kent ND)
*Johnson, David (Don Mills PC)
Jordan, Leo (Lanark-Renfrew PC)
Mills, Gordon (Durham East/-Est ND)
*O'Neil, Hugh P. (Quinte L)
*Perruzza, Anthony (Downsview ND)
*Ruprecht, Tony (Parkdale L)
*In attendance / présents
Clerk / Greffière: Grannum, Tonia
Staff / Personnel:
Fenson, Avrum, research officer, Legislative Research Service
Herbert, Jacinth, research officer, Legislative Research Service
Hopkins, Laura, legislative counsel
Kaye, Philip, research officer, Legislative Research Service
The committee met at 1009 in committee room 1.
REVIEW OF REGULATIONS REPORTS, 1989 AND 1990-92
The Chair (Ms Christel Haeck): I'd like to call the meeting of the standing committee on regulations and private bills to order. Our agenda this morning is somewhat different than our usual turn of events; that is, we will be reviewing a series of reports relating to regulations.
I'd like to welcome a series of staff people here who are going to advise us of the other half of our legislative duties, the one we don't tend to see all that often. Our first presenter this morning is Laura Hopkins instead of Lucinda Mifsud. Lucinda is the registrar of regulations, but she is ill, and Laura will very ably provide us some background in her stead. So, Ms Hopkins -- Laura -- please begin.
Ms Laura Hopkins: Cindy gave you a copy of a fairly lengthy article by Don Revell about the rule-making process. What I thought I would do would be to hit some of the high points of the regulation-making process and the job of the registrar of regulations.
As you know, a large proportion of the law that governs all of us is in the form of regulations. Regulations are a type of law, each of which is made under the authority of a particular statute, sometimes called the enabling act.
Regulations are most often made by the Lieutenant Governor in Council. On occasion they're made by a minister, and very rarely they're made by someone other than a minister or the Lieutenant Governor in Council.
As you know, statutes are relatively easy to find. A member of the public can go to the public library and track them down without too much difficulty. Reading them can be another thing, but accessibility is the first task.
The situation historically wasn't the same with regulations. Regulations were much more difficult for a member of the public or a member of the bar to find. When you found them, you couldn't always be confident that what you were looking at was up to date and still in force. So in 1944, the Regulations Act was passed to address public accessibility and certainty about the contents of regulations.
The Regulations Act creates the administrative machinery necessary to make sure that regulations are accessible and that their content is certain. The registrar of regulations is appointed under the Regulations Act by order in council. The registrar's primary duties under the Regulations Act are two. One is record keeping and the other is publication. What I want to do is walk quickly through the administrative machinery of the Regulations Act to give you a picture of how it works.
When, for example, the Lieutenant Governor in Council makes a regulation, it doesn't become law until it is filed with the registrar of regulations in the regulations office. The regulation becomes valid when it's filed.
Once it's filed, the registrar of regulations is required to publish the regulation in the Ontario Gazette within a month after it's filed. A regulation isn't usually enforceable until after it appears in the Ontario Gazette. The exception is, it's enforceable against someone who's had actual notice of the contents of the regulation. Of course, the law assumes that we're all reading the Ontario Gazette every month so that we are fully up to speed.
Mr Hugh O'Neil (Quinte): Which we do.
Mr Derek Fletcher (Guelph): It's at the top of my list.
Ms Hopkins: The registrar can't refuse to file a regulation because the registrar believes that it may not be authorized by an act. That's not a judgement call that can be made by the registrar. If the regulation appears to have been correctly made, if the signatures of the appropriate people appear to be on the paperwork, then the regulation can be filed, and regulations are presumed to be valid until they're found to be not valid by a court.
Mr O'Neil: Give us an example of a regulation that might be made before it appears in the Gazette. Are they still posted somewhere before they're in the Gazette?
The Chair: Just a second, Hugh, if I may. Let us follow through on the normal rules of committee. Could you address me so I can recognize you for the purposes of Hansard. We are being recorded. So, Mr O'Neil, you can continue with your questioning.
Mr O'Neil: In other words, when a regulation is made, it goes through the regulations committee of government. Then, after approval, do you still post it before it goes to the Gazette, so that people will know about it even before it goes in the Gazette?
Ms Hopkins: Sometimes a regulator will want people who are regulated to know about a regulation right away, so he may advertise it in the newspaper. Sometimes you'll see Highway Traffic Act regulations advertised in the newspaper. Sometimes, if they affect a small population, the regulator will mail them to the small population or post them in a government office so that they'll come to the attention of someone who is affected before they appear in the Ontario Gazette.
Mr O'Neil: Sometimes there are cases where it doesn't become public as quickly as maybe it should, I feel.
Ms Hopkins: I think that's not something I'm able to help you with.
Mr O'Neil: Okay, great.
The Chair: If I may, Mr O'Neil, I think maybe you could refer your questions to some of the other staff we're going to have before us, because they may be able to give you some idea on that issue. Could you continue, Ms Hopkins.
Ms Hopkins: The registrar has one additional duty established under a regulation made under the Regulations Act, and that's a duty to advise about the preparation of regulations. This advice is most often given to government when government is preparing regulations, before they're made, and the advice of the registrar to the government about these kinds of regulations is confidential legal advice provided by the registrar.
That sums up in a nutshell the task of the registrar of regulations and the regulation-making process under the Regulations Act. I'm happy to answer any questions you might have.
Mr David Johnson (Don Mills): I may be asking the wrong person, but can you tell us how many regulations in total we have at the present time?
Ms Hopkins: Every 10 years there's a consolidation of regulations in force, and there are slightly over 1,000 regulations in the consolidated issue of regulations. In the past two years, each year there have been slightly less than 800 regulations passed. Most of those will have been amending regulations that were in the consolidation.
Mr David Johnson: That's a bit of a surprise. I'm looking at the numbers in a particular report, obviously not the most current report, but in 1988 there were 769 regulations; 725 the year before etc. But most of those are not new regulations, then. Most of those are amending existing ones.
Ms Hopkins: That's right.
Mr David Johnson: So in actual fact there are just about 1,000 regulations as separate entities.
Ms Hopkins: Roughly. Somewhere between 1,000 and 1,100.
Mr David Johnson: Would the amendments go into those 1,000 to 1,100? If you were looking up a regulation, would you have to look up the original regulation and then four or five or half a dozen different amendments to make sure you've covered all aspects of your interest, or could you just go to one source, one piece of paper, and find not only the original regulation but all the amendments consolidated together?
Ms Hopkins: The safest way to make sure you're looking at the correct text of the regulation, and what a careful lawyer would do, would be to look at the regulation in the consolidation and then to look at each amending regulation that's been passed. However, ministries arrange for the publication of frequently used regulations in consolidated form, and they're available from the government bookstore. Publishers will also often publish frequently used regulations in consolidated form.
Mr David Johnson: I recall that one of these documents that's before us today, the Planning Act, is one act that receives quite a number of regulations and amendments and that sort of thing. If one were to have an interest in the Planning Act, how many regulations and amendments? Would you know that off the top of your head? How many amendments and regulations would be associated with the Planning Act?
Ms Hopkins: I'm not sure. I know it's one of the most frequently amended areas of regulation.
Mr David Johnson: It must be maybe up into 1,000?
Ms Hopkins: I'd be guessing.
Mr David Johnson: Is there any movement afoot to consolidate all the amendments within the existing 1,100 regulations so that you wouldn't have to (a) look at the basic regulation and then (b) look through all the amendments that may be associated with it to just make sure your case had been covered? Or is that impossible?
Ms Hopkins: No, I don't think it's impossible at all. I'm not sure whether the government might be considering taking advantage of electronic ways of publishing consolidated versions of the regulations, to be helpful that way.
Mr David Johnson: In total, would you know how many amendments -- well, we know how many basic regulations there are: 1,000 to 1,100. If we add up all the amendments associated with them, any idea what that number would be? I guess we'd had the number here for the last 10 years or so. It looks like about 800 a year.
Ms Hopkins: Yes. The consolidation that was passed effective 1990 got rid of most of the regulations that existed before then. The purpose of the consolidation is to in effect re-enact the regulations so that you have a base to work from.
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Mr David Johnson: So as of 1990 we are looking at somewhere in the vicinity of 1,100 regulations.
Ms Hopkins: Yes.
Mr David Johnson: And no amendments at that time?
Ms Hopkins: No.
Mr David Johnson: No amendments whatsoever?
Ms Hopkins: No. The amendments occur against that consolidated base, so the amendments would have been made in 1991, 1992 and 1993.
Mr David Johnson: So as we sit here today then, on any topic that is involved with a regulation, one would have to weed through roughly 1,100 regulations and the amendments from 1990 to the present time.
Ms Hopkins: If you wanted to master the entire body of regulations in Ontario, yes.
Mr David Johnson: But you wouldn't be concerned with any amendment to a regulation that occurred before 1990.
Ms Hopkins: By and large, no. The annual statute volume publishes a table of regulations each year that accumulates the amendments in the year covered by the statute volume.
Mr David Johnson: Is it common or uncommon to sunset regulations or the amendments to regulations?
Ms Hopkins: In my experience, it's not done very often. Some regulations in their nature are time-limited, or there will be a rule that, on its face, says it applies for 1993, for example, so that at the end of 1993 the regulation is defunct.
Mr David Johnson: This may not be a fair question, but there's nobody else with the experience here, I'm sure, that you have. Off the top of your head, would it be less than 50% that would have a particular time frame associated with them?
Ms Hopkins: I think that's fair to say, yes.
Mr David Johnson: Do you have any comments in that regard? From a technical point of view, is there any drawback to putting a sunset on a regulation or on an amendment to a regulation?
Ms Hopkins: From a technical logistic point of view?
Mr David Johnson: Yes.
Ms Hopkins: No, it's not a problem.
Mr David Johnson: I'm asking that question because we've been dealing with some of the business community. Their biggest beef is all the paperwork they have to go through and all the regulations they have to weed through and that sort of thing. One of the cries has been to sunset all regulations, or all amendments, I guess, to regulations, and I wondered if this would impose any sort of problem from a technical point of view.
Ms Hopkins: I don't think that from the point of view of maintaining the indexes it would present a problem. Probably the staff from the legislative research service will be able to help you with that as well.
Mr O'Neil: I don't know whether maybe you want to comment, whether you're the person to comment on it, or maybe somebody from other staff, but just for the clarification of some of the members who are newer than others, I guess one of the concerns that has always been expressed is that there's a fear among members that sometimes a certain bill does not always contain all the things members think it should and that governments -- I say governments of all parties -- try to cover them under regulations. Some people would rather see it covered by the bill than certain types of regulations. I don't know whether you'd like to comment on that or whether somebody else on staff would like to touch on it.
The Chair: Can you answer that, please, Laura?
Ms Hopkins: I think probably you'll get more helpful advice on that point from the other presenters this morning.
Mr O'Neil: Possibly they could make a note of that and maybe comment on it when they appear before the committee.
The Chair: Thank you to the questioners. I think they were good points to raise. Mr Johnson managed to raise something on sunsetting that I was thinking about, so thank you for bringing that forward.
At this point, I would invite Mr Fenson and Ms Herbert to join Ms Hopkins at the front table here and introduce themselves for the purposes of Hansard. Mr Kaye, who is sitting at my left, will also be making a presentation. For the information of members, he has prepared a document. The subject is the mandate of the standing committee on regulations and private bills. The other highlighted title is "Origins." If I can turn it over to you, Mr Kaye, perhaps you'd like to highlight the salient points.
Mr Philip Kaye: I thought I'd highlight a few of the key points in my memo, which provides a brief description of the history and mandate of this committee.
The Legislature first set up a regulations committee in 1969 through an amendment to the Regulations Act. This amendment added what's now known as section 12 of the Regulations Act. This section, in a book entitled Delegated Legislation in Canada, by Denys Holland and John McGowan, has been described as the most significant modification to the Regulations Act since 1944, when the Regulations Act was first passed.
In the year prior to the passage of this amendment, 1968, the McRuer commission, which was named after the recently retired Chief Justice of the High Court of Justice of Ontario, had recommended the creation of a regulations committee, and by way of explanation one of its comments was, "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."
This book, Delegated Legislation in Canada, says that McRuer's report was the "major historical impetus towards parliamentary control" over regulations in Ontario. As noted at the top of page 2 of the memorandum, the McRuer commission believed that a regulations committee should serve three purposes, the first of which was that it should result in more care being given to the form and content of regulations.
When it comes to the terms of reference of a regulations committee, where are they found? There are really two sources. There is the Regulations Act, the section 12 which I mentioned, and also the standing orders. Section 12 says that every regulation stands permanently referred to the standing committee on regulations, and it also says that the committee "shall examine the regulations with particular reference to the scope and method of the exercise of delegated legislative power but without reference to the merits of the policy or objectives to be effected by the regulations or enabling statutes." As a result of this provision, the merits of regulations are outside this committee's mandate.
Just with regard to this issue of merits, in April 1973, about three and a half years after the committee was first established, the standing regulations committee, according to the Journals of the House, submitted a one-sentence report which read, "Your committee recommends to the Legislature that in view of the committee's limited statutory powers, that regulations be referred to the committee from time to time for review and examination of their merits."
Ten years later, in 1983, the standing committee on regulations and other statutory instruments made the following comment on this one-sentence report that this committee should deal with the merits of regulations: "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."
But this issue of whether or not this committee should deal with merits surfaced again in 1988. At that time, the regulations committee had its current name, the standing committee on regulations and private bills. In the second report, 1988, that committee said that it believed that committees of the Legislature should be empowered to examine the merits of regulations. However, it did not believe that it was the role of the regulations committee to review policy, that the regulations 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.
The committee, in its report, had then referred to the submission of a professor from the University of Toronto, Hudson Janisch, who in reference to a merits mandate had said, "I believe that it would sidetrack the committee from its important work, would call for a degree of institutional competence not to be found in the committee and would inevitably bring the committee into conflict with responsible ministers and cabinet itself."
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Apart from the Regulations Act, the committee's terms of reference are found in the standing orders. The standing orders list nine guidelines for the committee to consider when reviewing regulations. Those guidelines are repeated on page 3 and they are all highly legalistic. In accordance with what I've said about the merit side of things, they don't deal with the policy of regulations.
Of the nine guidelines, the three which committee reports have raised the most frequently would be the second one, that regulations be in strict accord with the statute conferring of power; the third guideline, that regulations should be expressed in precise and unambiguous language; and the fourth guideline, that regulations should not have retrospective effect unless clearly authorized by statute.
Apart from these nine guidelines, the committee, in practice, has adopted a 10th guideline, that regulations should be in conformity with the Charter of Rights. In 1988, in the report I just mentioned, the committee formally recommended that the standing orders be amended to include the 10th guideline, of compliance with the charter.
The standing orders also say that before the committee can draw the attention of the House to a particular regulation, it must first give the ministry or agency concerned an opportunity to explain the regulation; in other words, to indicate whether or not the ministry or agency agrees that one of the guidelines in the standing orders has been violated.
How are these regulations actually reviewed by the committee? Initially an examination is conducted by counsel to determine whether or not there are any contraventions of the standing orders. Avrum and Jacinth have reviewed the regulations from 1989 through 1992, and those reports will be dealt with shortly.
The final topic discussed in my memo has to do with another side of this committee's regulations work. Apart from actually reviewing the regulations to determine if the guidelines have been complied with, this committee, from time to time, has looked at various aspects of the regulation-making system.
That mandate is nowhere explicitly authorized in the Regulations Act or the standing orders, but the committee's view in the past has been that there's implicit authorization to look at the regulation-making process in section 12 of the Regulations Act, and at the bottom of page 12 I list some of the issues that the committee has looked at, although it really hasn't dealt with these issues in any systematic way for over five years.
The first issue listed is notice and comment, which deals with procedures for giving the public notice of and an opportunity to comment on proposed regulations.
The second issue is the principle of disallowance, whereby members are empowered to vote the repeal of regulations.
Thirdly, I make reference to the mandate of the regulations committee. Two examples of issues that have been dealt with under this topic are whether the committee should be authorized to examine the merits of regulations and whether the terms of reference should be expanded to include the review of enabling regulation-making clauses in bills. This was an issue that was just raised, earlier in the meeting.
In the second report, 1988, when the committee looked at the issue of how to deal with the regulation-making section in an act, it did make a formal recommendation. If I could just read the first part:
"The committee's mandate in the Regulations Act should be expanded beyond the review of regulations to include enabling clauses in bills. The committee should advise the standing committee considering the bill whether or not the enabling clauses contain overly broad or vague enabling powers."
Then the recommendation goes on to give some examples of these overly broad or vague enabling powers, one of which the committee identifies as a "King Henry VIII clause" to refer to a clause which allows the enabling act to be amended by regulation. There's also reference to the excessive reliance on clauses authorizing "any other regulations as are required to bring this act into effect," which the committee describes as "basket clauses."
The recommendation concludes: "In order to adequately assess the enabling clauses in a bill, the whole bill will have to be referred to the committee. We reiterate that the committee would not be reviewing matters of policy."
A fourth issue that the committee has dealt with -- and the list on page 4 is certainly not exhaustive -- has to do with the manner in which regulations are published in the Ontario Gazette. For example, should an explanatory note accompany each regulation?
That's just a brief overview of the regulations mandate of this committee.
The Chair: Any questions on Mr Kaye's report?
Mr David Johnson: I was looking at those last four. Are they called "recommendations"?
Mr Kaye: What I've included at the bottom of page 4?
Mr David Johnson: Yes, at the bottom of page 4.
Mr Kaye: I haven't worded them as recommendations, just in terms of the issues that were discussed.
Mr David Johnson: Alternatives or options or discussed issues. Looking at point 2, "the concept of disallowance whereby members are empowered to vote the repeal of regulations" as a possibility, how in your mind would that work if that was instituted? Would this committee have that full authority or would this committee have some authority to recommend to the Legislature? Just how would that work?
Mr Kaye: The way the regulations committee in 1988 dealt with this was through a formal amendment to the Regulations Act. This is what it wished to take place. Under the proposed amendment to the Regulations Act, this committee would be empowered to make a report to the House containing a resolution that a specified regulation or part of the regulation be disallowed, and once the report of this committee had been tabled in the House, a vote would have to be held within the next 20 sitting days; otherwise the report would be deemed to have been adopted. So the House would have to take action on the report.
Under the 1988 recommendation, the Regulations Act would state that the adoption or the deemed adoption, in the case of a failure to hold a vote within the 20 sitting days, of the report had the same effect as the repeal of the regulation. So by statute this committee would have been given the power to institute a process whereby if the House did not act, the regulation would be repealed.
Mr David Johnson: So the House would have a veto in a sense, I guess.
Mr Kaye: Yes.
Mr David Johnson: From a technical, legal point of view, are there any impediments to that? It seems like a procedure that could work. The government, of course, would have control in the final analysis, being a majority on the committee, in terms of being a majority in the House. If they didn't like what the committee said, they could obviously vote it down.
Mr Kaye: From a legal perspective, if the Regulations Act was amended in this way, I'm not sure if there would be an impediment. Whether, from a policy point of view, this is what the Legislature wishes to adopt, that's a completely separate story.
Mr David Johnson: That's right.
Mr Kaye: But legally, I think the reason the committee in 1988 recommended that the process be implemented by means of an amendment to the Regulations Act was to give it a statutory foundation, because at the time, the committee heard about a disallowance procedure in Ottawa which was found in the standing orders of the House of Commons. One of the criticisms the committee heard about was that it lacked that statutory basis. The recommendation was worded in such a way as to overcome that obstacle and also to be very explicit that the adoption of the committee's report meant the repeal of the regulation, which apparently is not in the wording of the federal standing orders.
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Mr David Johnson: How does the federal situation work?
Mr Kaye: I haven't really followed it that closely since the committee looked at the issue in 1988, because as I mentioned earlier, this committee has not dealt with these issues, but it's my understanding that the disallowance procedure has been used successfully from the committee's point of view in Ottawa three times. In all cases, it involved, I believe, regulations where the committee was saying there was no statutory authority for part of the regulation and the department involved did not challenge that; either the department agreed that there was no statutory authority or had undertaken to take action and nothing had happened.
Mr David Johnson: Are these before us today? I don't know what our procedure is here today. Maybe this is more a question to the Chair. Are we in a position today to re-endorse -- I gather these were recommendations that were put forward in 1988 by a similar committee to this.
The Chair: The point of this meeting, I believe, was to basically deal with the review of the regulations from 1989 to 1992. What Mr Kaye has provided us is really background, since it's not something that we deal with very often. I think that as members, we don't tend to think about the regulation-making side of our title; we tend to deal much more on an active basis with the private bills side. So that's very much in my memory and I'm very thankful for the kind of information that the research staff have provided us with. It obviously opens up the door to what the rest of the committee wants to do, but I think that the main item for business is to look at reports for 1989 through to 1992, since those have been hanging in abeyance for a while.
Mr David Johnson: I understand that, but would you be entertaining motions that would deal with the four points, for example?
The Chair: I'm in the hands of the committee.
Mr David Johnson: In terms of the sunset clause, there's nothing mentioned in here, either in the four points, I don't think -- is there? -- or in terms of the 10 points that have been sort of predetermined that this committee has control over. It's hard for me to read anything in there that involves sunset. Is it your interpretation, Mr Kaye -- does this committee have any authority with regard to sunsetting of legislation?
Mr Kaye: In the second report, 1988, the committee did look specifically at sunset clauses in regulations and it actually recommended an amendment to the standing orders to require standing committees to evaluate the effectiveness of regulations on a rotating basis. The goal was the systematic review of all regulations over a seven-year to 10-year period.
The committee also felt that before making or recommending a regulation, ministries and agencies should consider whether or not a sunset provision would be appropriate. So there were specific recommendations on sunsetting in the second report, 1988. If the committee wishes, I could provide members with copies of the recommendations. There was also an interim government response to this report. Both documents could be provided to members.
Mr David Johnson: I'd like to have a copy of that, for one.
The Chair: We would probably all appreciate some of that information. Do I hear any noes with regard to that? No. Mr Kaye, perhaps you would provide some additional information.
Mr O'Neil: I guess, having been here for too long, 18 years or whatever, I forget, I've gone through this regulation bit in opposition and in government, and I can recall having sat on the regulations committee as the minister and to know how involved it is, how many regulations you're actually dealing with and the process and the length of time it takes. There are maybe some things that we should examine as a committee, some additional safeguards we could build in.
I mentioned the agricultural bill where we talk about organization, unionization of farming groups or related matters. There might be some areas that this committee could look at, but if we get into it, to be fair, it would be a very involved process and it would take a lot of time if we were to deal with all the regulations. But the committee could maybe serve as a precautionary committee, if there are some regulations we are questioning; safeguards could maybe be put in to examine certain of those regulations.
I don't know whether it's fair to ask the staff to comment on this because it's maybe more political than it is, but I just make those comments.
Mr Ron Eddy (Brant-Haldimand): The problem I've encountered with regulations is more the timing of them, and in view of what Mr Johnson has said, that the government shall govern having a majority on the committee and in the House on votes, of course that's the case.
I quite often run into this problem in an act when it's being passed in the House, "Well, where are the regulations?" Indeed, in debate in committee: "Where are the regulations? We need to see the regulations. We need to have the regulations."
We run into the problem quite often where the regulations are not prepared when a bill is passed and it's maybe several months later. I imagine what happens is that the regulations are being worked on when the bill is presented and passed, but the bill is incomplete, it seems to me, and I think that's what most members view. The bill is incomplete in many cases because the regulations aren't there where there are numerous regulations to a bill. That's what is perhaps more of a problem than what the actual regulations are or do, given and noting, of course, that sometimes -- and in view, I guess, of the Henry VIII provision that was mentioned.
That's what I see and I really feel strongly that regulations need to almost accompany the bill in most cases, or really in all cases. I don't know that anything can be done about that at all, of course, but that is a problem, as I see it.
The Chair: In discussing the planning for this meeting, definitely that issue was discussed --
Mr Eddy: Oh, I see.
The Chair: -- inasmuch as, at least in my own memory, in most instances bills have come forward and the regulations later.
Mr Eddy: Much later.
The Chair: I will allow Mr Kaye to obviously provide his wealth of knowledge on this because, as a librarian, I only saw it after it got printed and got put on the shelf.
Mr Eddy: Did you say this had already been discussed?
The Chair: No, not here.
Mr Eddy: Okay, because I was --
The Chair: I had a chance to meet with the staff to say what they wanted to present to us and I raised a couple of points with them that I thought you, as members, might be interested in, and this is an issue that also came up. Obviously Mr Kaye, I think, is prepared to respond to this, to some degree, and then we have a question from Mr Hansen.
Mr Ron Hansen (Lincoln): You know, if Mr Eddy --
The Chair: No, first of all, a response from Mr Kaye and then your turn, Mr Hansen.
Mr Kaye: This issue was raised in the committee a few years ago, but the committee did not take the time to examine it in any thorough way. I believe the question was raised with the registrar of regulations at the time and I think there is a three-letter response from the registrar to this question. I can check my files to locate that letter and distribute it to committee members, if they wish.
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The Chair: Ms Hopkins, since you're a representative of the registrar's office, are you aware of any of these kinds of discussions and can you add anything at this point? I know I'm putting you on the spot, so I apologize if I am, but you may be aware of this sort of issue yourself.
Ms Hopkins: I'm acquainted a bit with the issue but not with the correspondence. I can offer what's probably not a very helpful comment here that the timing of the bringing forward of regulations is a matter of the government's choice.
Mr Eddy: I'm well aware of that, of course.
The Chair: Thank you. Mr Hansen, your question.
Mr Hansen: I agree with Mr Eddy that it's been asked quite a few times with different bills on the regulations, but as the bills get amended, the regulations will change. I think maybe it becomes an argument with opposition to say, "Well, how come this has changed in the regulation?" and you explain, "Well, we've dropped that from that part of the bill." I think it just opens up the whole process of more debate. When the bill is finalized, we say, "Okay, that's the regulations according to this clause and that clause." I just wanted to comment on Mr Eddy's remarks, just so I've got clarification also.
The Chair: We've exhausted the questioners on this point. I think it would be appropriate for Mr Fenson and Miss Herbert to get into the discussion and I believe each of you has prepared a report. I can't just say it's an annual report, because some of them cover more than one year. Mr Fenson, are you the author of the report for --
Mr Avrum Fenson: On the 1989 regulations.
The Chair: For 1989.
Mr Fenson: Yes.
The Chair: Very good. Have all members got their copies? If you would again, rather than trying to go through it exhaustively, give us the highlights, please.
Mr Fenson: Sure. This report, which in fact was submitted to the committee in 1991, reports 13 regulations as being in apparent violation of three of the guidelines in the standing orders, the three that Philip Kaye mentioned: the guideline concerning retrospectivity, the guideline concerning the statutory authority under which the regulation was made and the guideline requiring that regulations be made with the precision of language.
I'll just spend one minute telling you what the procedure is in the review of regulations. The legal staff at Legislative Research Service reads all the regulations for the period being covered by the report, identifies regulations which raise problems with the guidelines in the standing orders and then corresponds usually with the legal services branch of the ministry in charge which administers the statute under which those regulations were made. Sometimes, as in the case with the Ontario Securities Commission, it will be directed to correspond directly with the commission instead of with the ministry, which at one time was the Ministry of Financial Institutions, now the Ministry of Finance, because it's so specialized. As a general rule, we initiate correspondence with the ministry.
The ministry will then communicate back with us, either in writing, or sometimes in conversations. Sometimes the problem is laid to rest by their explanation and sometimes it's not. Sometimes the problem is a matter of agreement between us and them and we report that they agreed that we know there's a problem. Sometimes they undertake to correct it -- that's a different topic, whether they do correct it and how the corrections are made -- and sometimes we simply have to report that we have differed on our interpretation of the standing orders.
Generally, in past reports, there's been a lot of evidence, either of agreement or disagreement. A draft report is then presented to the committee, as this one is being done today, and the committee then makes a decision about changes or tabling it as presented.
This report does not disclose problems with the regulations which are of great importance in terms of the administration of government, but they're nevertheless distinct, some technical and others more substantive violations of the guidelines. Three of them are violations of the guideline against retrospectivity. One of the guidelines provides that a regulation should not be retroactive unless the statute under which it was made specifically provides for retroactivity.
An example of a statute that provides for retroactivity is the Retail Sales Tax Act, which specifically says that regulations may be made retrospective in their effect; they may be applied retrospectively if the maker wishes them to do so. Since this is of practical use to ministries that are administering the consequences of a budget, for example, they can establish, retroactively, the application of a tax, though not create the tax itself, to an earlier date than that on which the regulation was made.
Most of the retroactivities which we have found and brought to the committee's attention have been cases of regulations which actually specify the date on which they are to come into effect, which, while not unusual, is certainly only the case in a minority of regulations, and then were filed with the registrar of regulations after that date, sometimes by only a few days, but sometimes the late filing is a matter of weeks or months.
In the past, absent any other instructions from the committee, we took a very, very strict view of retroactivity. When reviewing the 1987 regulations, for example, if we discovered a regulation which didn't say that it took place on a particular date but said something like, "The wages paid to court reporters will be such-and-such, effective January 1, 1988," whereas the regulation was made in September of that year, we reported that as being retroactive.
Ministries did not like this, understandably, and I then decided to consult with the Office of the Provincial Auditor to ask whether a regulation which referred to a previous period for payments was considered by the Office of the Provincial Auditor to be adequate authorization for the expenditure, and it was the view of the auditor that this was perfectly all right. So, we reported to the committee that we would henceforth, absent any further instruction from the committee, not be reporting such regulations as retroactive.
But in 1988 and in this report we are still reporting as retroactive regulations which -- or at least through 1989 we reported regulations which missed, even by a short period, the date on which they specifically stated themselves to come into effect. It might be administratively trivial, but that was the view we took. Jacinth will discuss the view she took on later regulations.
So three of the regulations in the 1989 report deal with that kind of retroactivity, or retrospectivity, as it's sometimes called -- four regulations, rather, under three ministries.
Another category of violation is violations against the guideline concerning statutory authority. The problems are of several kinds. A regulation might be made by an authority other than the authority who is named in the statute as being the proper maker of the regulation.
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To give an example from another year, a statute might state that the regulation is to be made by a minister with the approval of the Lieutenant Governor in Council and in fact it was made by the Lieutenant Governor in Council, or a regulation might state that it's to be made by, say, the council of the Association of Ontario Land Surveyors and it was made by the minister or by the Lieutenant Governor in Council. Those are reported as being in violation of the statutory authority in the sense that they were made by an authority other than the one named in the regulation.
Another category of violation of this guideline is where a regulation is made, at least in part, on a topic which is not specified in the authority.
Statutory authorities for regulations are often a section which contain a long list of paragraphs actually specifying detailed topics on which regulations can be made. The longer the list, the more apt a ministry is to have, inadvertently or by reason of just a different interpretation than we take -- of whether a topic corresponds to one of those many topics listed.
A special category which comes up from time to time is that a regulation will be made creating a form, such as a form asking questions of applicants for a change of name or a form used by parents seeking certain services under the Child and Family Services Act, and it'll be found that the statute does not provide authority for the making of forms.
The policy significance of this -- with which we are, strictly speaking, not concerned -- is that here you have a regulation requiring citizens to give information for which there may be no authority in the statute.
Those are the chief types of violations of the guideline requiring that the regulation be made within statutory authority.
The Chair: Would people mind if I asked a question at this point?
Mr Eddy: As long as it's helpful.
The Chair: I'm not sure that it's helpful.
Mr Fenson, you're raising an interesting point which I think piggybacks to some degree along with the question that Mr Eddy asked earlier on the consultation with the ministry working on a statute. You're talking to some degree about an oversight, I think. You're saying that a form was to be created and yet there were no statutory powers given and so on and so forth.
You flag that somewhere done the road. Obviously, if that discussion was held early in the game some of that problem might have been avoided and someone else would be able to say, "Hey look, this is what should be in the statute; therefore we can do our job." Where are you brought in or where are other folks brought in to make sure that these things are flagged and caught early enough?
Mr Fenson: I'm brought in, in the sense that I report this to the committee. But before the committee hears about it I've already discussed it with the ministry. The ministry is under no obligation to change its practices because I noticed something. But the Legislature is entitled to reach whatever conclusions it wants from any report that's tabled in front of it.
The Chair: At that point would the legislation then have to be changed? I'm looking at it from even at the drafting stage.
Mr Fenson: You're asking how problems that are flagged can be remedied. They can be remedied in several ways. They would have to be remedied in several ways depending on what the problem is.
Sometimes the remedy --
The Chair: Excuse me, just for the purposes of Hansard, your voice carries very well but it's not into the mike.
Mr Fenson: Sometimes the remedy is a revision of the regulation, a correction of the text of a regulation. Sometimes the remedy would be a change in the statute to allow for the kind of regulation that was made but which we felt was not, strictly speaking, authorized by the statute.
The committee has not asked us and we have not discussed, but we have informally, among ourselves, reviewed to see the kind of response that government has had to reports that have already been tabled, for example, reports on the 1987 and 1988 regulations which the Legislature had, I think, in 1989.
It's a mixed bag. There's some response and sometimes there isn't response. If the committee wishes we can at some time give a more detailed view of this.
Sometimes, in fact, in the course of discussion with the ministry before writing the report, the ministry says, "Oh, yes, I'm glad you caught that. Next time we have a cleanup of the regulations we'll change that word," and some of the regulations were changed fairly quickly after our contact with the ministry, even before the report in which it appeared was tabled in the Legislature.
So it depends very much on how interested the ministry is, how responsive it is to the problem, how easy it is to fix. It's obviously easier for a ministry to repair a regulation than it is for a ministry to change the statute, which may be the problem, although several statutes have had slight amendments as a result of this process.
The Chair: Continue. I didn't mean to take you too far off your path here.
Mr Fenson: The third category which is reported here, as it has been reported in other reports, is that of problems with precision of language. For example, a regulation may say, "For the purpose of this regulation, a tourist camp operator means," and then it will list three items but it will neglect to have "ands" or "ors," so the rational reader will not know whether he has to meet all three criteria or whether he meets the criteria by choosing one of them. That's obviously a slip, a typographical error, and ministries are generally very good and fairly swift about cleaning that up when they have the next opportunity.
You might have a funding formula in an education regulation, a complex funding formula providing for per capita grants for students studying French as a second language in a particular school board, which will say the sum is the greater of the two and in fact only one is listed. Either a part of the formula is missing or that phrase is superfluous, but in either case somebody reading the regulation strictly will not know whether he or she is being properly guided as to rights and obligations under the statute.
That is a typical sort of problem; in other words, something beyond a mere typographical error which is patently wrong but doesn't confuse the reader. We don't waste anybody's time with typos that do not confuse the careful reader but we do point out slips which make it impossible to know with complete certainty what the regulation is meant to impose on a person or cause to happen.
I don't know if the committee wants me to run through particular regulations. There's nothing that is too exotic an example of the three categories I gave. There is a total of 13 regulations reported under one or another of those categories in this report.
The Vice-Chair (Mrs Ellen MacKinnon): Thank you. Miss Herbert, have you a presentation you'd like to give us at this time?
Ms Jacinth Herbert: Yes, I do. I covered the period of 1990 to 1992 with respect to regulations. Much of what my colleagues have said really gives you a base of what's happening with regulations and what our job is.
My report basically goes through much of what my colleague spoke about, the areas that are of concern with respect to regulations which we found some difficulties with. If you have my report before you, I think one of the points that is important to note, which was touched on before by the lawyer who spoke before Mr Fenson, is the fact that there are a number of regulations that are made yearly in Ontario.
With respect to my report, you can see that the range is usually about 700 regulations. In 1989 or in 1990, there were 702 regulations made; in 1991, 789; and in 1992, 799, so an increase. The increase I think is because of the fact that now we are looking at regulations that are amended to include a French portion as well as regulations that are now being made in French and English. That is the new trend. So while my colleague didn't discover regs that had some French components, I found a large number of regs that were trying to comply with bilingualism in Ontario.
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With respect to my report, I noted that there are certain acts which provide for more regulations being made in a year. One of those acts, of course, which was mentioned before, is the Planning Act. Also you find a number of regulations being made under the Highway Traffic Act, the Crop Insurance Act, the Environmental Assessment Act and the Game and Fish Act. That's pretty consistent through the three-year period of my report, 1990, 1991 and 1992. You'll find those are the acts that seem to demand the most in terms of regulations made in Ontario.
With respect to the actual regulations which violated the guidelines, I found that the two areas of concern in my report were statutory authority and precise and unambiguous language.
I should note that my colleague pointed to the area of retroactivity. Within my report, I didn't refer to retroactivity. What I found was that, because it was a three-year report, many of the instances of retroactivity were caught by the ministries. Some of them were no longer significant, because we were talking about two years where something had violated in a matter of days. I didn't think that it was necessary to burden this committee with those sorts of issues, which really were issues that couldn't be dealt with at this particular point in time.
You'll notice that my report only refers to three regulations. I should indicate to the committee that I contacted eight ministries with regard to 29 regulations. I think it's a function of what this committee has been doing that the ministries have caught many of the errors they've made in the past. As well, the ministries I found were very speedy in terms of responding to some of the issues that were brought forward to them. I found they were very receptive to the comments that we had and the letters that we wrote with respect to any violations.
Of the three regulations which I have reported, two of them deal with the area of statutory authority. As my colleague mentioned before, when we talk about statutory authority, we're really saying, "Who can make this regulation and has the right person made the regulation?"
There's one of those that is reported under the Environmental Assessment Act in which there's a question of whether or not the regulation could be made by, in this case, the minister. This one deals with legislative areas as opposed to administrative areas. That's a very technical-type area for lawyers as well as the layperson to deal with, what is legislative and what is administrative. I think with respect to that particular regulation, the ministry is of the view that it is administrative as opposed to legislative, and we are questioning the legislative component of that.
The other regulation that was reported with respect to statutory authority dealt with the Pension Benefits Act, where once again we're questioning whether or not the right person carried out the authority under that act of regulation-making. We're really concerned that perhaps this regulation may be shifting the regulation-making power to persons who are directly affected by the Pension Benefits Act. So that is one that we've reported, and I take it you've had time to look at the areas I mentioned in that.
The third regulation that was reported dealt with precise and unambiguous language. This is what I was talking about when I talked about the French regulations. This was an amendment that dealt with a regulation that was transferred from English to French, and the French version was not consistent with the English version. On contacting the ministry, they acknowledged that there was a problem with respect to the translation and that it was something they would deal with in terms of making sure that the right translation occurred.
Basically, those are the points that I have to make this morning with respect to the report, and I am open to any questions that you may have with respect to that.
The Chair: Thank you, Ms Herbert. Shall I open the floor to questions? Mr Johnson.
Mr David Johnson: It's amazing that there are only three, actually; I would have expected more. These are the three that you do not agree with -- who? The government?
Ms Herbert: They're the three which I would say we're not necessarily in agreement with in respect to what power the particular authority-making falls under.
Mr David Johnson: So these three are outstanding at the present time?
Ms Herbert: They are outstanding at the present time. The matter of the French regulation, I think, is one that is fairly easy to remedy. The other two, as I mentioned, which dealt with the statutory authority, are regulations which I believe are under review by the ministries right now.
Mr David Johnson: If you look at the one involving the Environmental Assessment Act, for example, I guess it's your claim that through the Gazette by notice the regulation could be changed. Is that your point?
Ms Herbert: No. My point is that I don't believe that it can be changed through the Gazette by way of a notice.
Mr David Johnson: That's what I meant. So that's your point, that it shouldn't?
Ms Herbert: That's correct.
Mr David Johnson: But the government is trying to make a point that this is an administrative function of some sort and you shouldn't be concerned about it, I gather.
Ms Herbert: I think that the indication is that it has an administrative component. That's correct.
Mr David Johnson: But nevertheless, your position hasn't shifted.
Ms Herbert: In all fairness, I should say that this is one of the types of regulations where you are sort of falling in the middle and saying, "Well, you know, they may have gone too far, they may not have." I think this is the type that you could fall right down the middle, where you'd find a number of people who may say, "Yes, it does have a large administrative component," and on the other side a large number who would say it has a legislative component.
Mr David Johnson: What's the role of this committee? You've brought this to our attention. Although you're waffling a little bit by your recent comments, nevertheless I think this committee is of the opinion that you have one position and the ministry is taking another position. I guess it would be my view that your position should really be respected unless they can bring some new information to change your position, and they're really duty-bound to comply with what you're bringing forward. How does that happen and what role does this committee play?
Ms Herbert: I'm going to defer that to Mr Kaye, because Mr Kaye has had a lot of experience in terms of those types of matters and I think he would be able to answer you more directly.
Mr Kaye: It's a case of this committee report, once it has been finalized, being tabled in the House and then whether or not there's a debate in the House on the report. The whole issue of what happens to the conclusions and recommendations of this committee is tied in with the issue of disallowance, which, as I mentioned, was raised and hearings were held before this committee in 1988.
If the committee finds that a regulation or part of a regulation is without statutory authority under the disallowance power as recommended by the committee in 1988, there would be a resolution in the committee's report that the regulation be revoked unless there was statutory authority, and then, if the House didn't deal with that report, the deemed adoption of the report, or the House voted to accept that recommendation, the regulation would then be repealed.
Mr David Johnson: Are you saying that if this committee is satisfied with the position that's being put forward there could be a resolution from this committee that indeed there is not this authority?
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Mr Kaye: Not under the current legislative framework. To require the House to act on the committee's recommendation and to say that if the House didn't act within so many sitting days the regulation would then be repealed because this committee feels there's no statutory authority, that power does not currently exist.
Mr David Johnson: What options do we have here right now, as we sit here today, other than to read this? What is the purpose of bringing this before us today or what options do we have in terms of dealing with this?
Mr Kaye: I think one of the expectations is that when the report is tabled in the Legislature, the ministry involved, upon reading the report, might reassess its position. I think Mr Fenson has something to say about that.
The Chair: Mr Fenson, and then we have to turn to Mr Eddy.
Mr Fenson: The short answer is that the option is to table the report or not table the report, basically, or to instruct us to recast the report in some way. But the main power of the committee is to table a report embodying these complaints with the Legislature.
Mr David Johnson: Table it here today? Is that what you're talking about?
Mr Fenson: Or some time in the future to cause it to be tabled, to table it in the Legislature.
Mr David Johnson: How do we as a committee know what ultimately is the resolution to this, or if indeed there is any resolution?
Mr Fenson: I suppose by asking in the House whether a response has been received to the committee that's been tabled to the House, to instruct committee staff to find out if there's been some response to it and to report to the committee.
Mr David Johnson: Could we at least ask for a report back at some time? Maybe somebody else knows how this matter has evolved.
The Chair: I know Mr Eddy has a question. Can I just turn the floor over to him? That may answer your question.
Mr Eddy: I think we should be a little stronger on it and I think it's more than just tabling or not tabling this report. I note that the particular item ends up with the statement, "Thus we believe that regulation offends guideline..." etc. I think it should be stronger than that. If we feel it does offend, and I feel it does, then we should take some action.
One of the actions I had hoped we could take is to indeed have the regulation changed to provide for notices of exemption. I'd like to see how that could be done. Maybe that requires an amendment to the act. But going back to the last sentence in the first paragraph, under statutory authority it says, "We believe that the Environmental Assessment Act does not confer this form of power upon the minister."
I think the action is, immediately, that this committee should recommend that the act be amended to so provide that. We're in the position, some of the members, of agreeing completely with some of the exemption orders. There's no doubt about that. That could be a bind, realizing probably in my own riding there are one or two. I think they should be provided for. The important thing is to provide for them legally, and that's what this is all about. I would say your report could be tabled with this, but I think there needs to be a firm action by this committee recommending to the ministry that the act be amended if that's required and we'll put everything in order forthwith. In order words, forthwith, as when this report is tabled with the Legislature, we should indeed have that amendment.
It's a fairly simple thing to do in a case like this with unanimous consent, it would seem to me, because this affects many of the members and is awfully important, the exemption orders. I'm really concerned that there is the possibility that they aren't legal all the way through. I think that should be corrected. I think we should take some firm action and I'm prepared to do that. Does that sound like appropriate action to take?
Mr Fenson: Yes, it would be.
Mr Eddy: In this case?
Mr Fenson: Yes. Tabling a report with whatever recommendations and instructions the committee wants to give is within the committee's competence and it is the avenue contemplated by the standing orders and by the Regulations Act.
The Chair: Just to expand on Mr Fensen's comments slightly, in the standing orders, subsection 37(d), under response to reports, it says:
"(d) Within 120 calendar days of the presentation of a committee report as provided in clauses (b) and (c), the government shall, upon the request of the committee, table a comprehensive response."
If members are anxious to receive a report from the respective ministry, that is part of the standing orders. So definitely I'm in the hands of the committee.
Mr O'Neil: Was the purpose of this to have the committee discuss this and report back to the House?
The Chair: Basically what we're looking at is, we have these annual reports and they have obviously been waiting for our consideration. We do have to at some point report. Obviously if there are any provisos or recommendations that you want to add, that is up to the committee members as a whole, but I do believe it is important that we look at these documents and then present them to the House.
Mr O'Neil: I just wonder, because we mostly deal with private bills -- we've given very little attention to the regulations part of it -- rather than doing something right away on this, why don't we take a few meetings, if we have to have another look at this, after the first of the year? Maybe there may be other regulations besides the ones that Mr Eddy suggested.
The Chair: We run into one small logistical problem, which is that this committee is not mandated to sit during the intersession. So depending on how long we sit up until Christmas, I believe we have that option, but once the House is adjourned, we would not in fact be reconvening until probably some time in March. Obviously that's something that can happen, but I would think our memories would need to be refreshed on these issues. I think in some respects if we could move through them, if members would be anxious to have some further discussion over the next week or so, then that's up to the committee.
We can of course make a formal request of the House leaders to sit, but knowing the pressure of the legislative calendar, I suspect this committee would be on a lower priority. I'm not trying to read the House leaders' minds, but I strongly suspect that we wouldn't get first crack at time during the intersession. So to be realistic, we either deal with it in the next couple of weeks or we're looking at revisiting this some time later in 1994. By March, undoubtedly we will have the pressure of a range of private bills to deal with again, just to lay out what I see as normally coming before a range of committees.
Mr O'Neil: Again, we're not really going to approve or suggest very much with what we've got now, except I think maybe what Mr Eddy mentioned was important and could be part of it. What's the necessity of trying to get it done before we finish this session? Either we get time in March or we do it in April or May and put something a little more substantial in our recommendation when the report goes in.
Mr Hansen: I have to agree with Mr O'Neil. I think we just can't rush into this in the next week or so. We've been sitting on it since 1991. We've taken two years. I think if we do a proper job on it and take a look -- you can ask the House leaders if we can sit when we're in recess, and our budget usually isn't very high in this committee, if this is something that has to be done right away, or we wind up taking a look at the end of March when we come back.
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I have to agree with Mr O'Neil. There's some other background information to come to the committee, and I don't think we should be very rash. Maybe we can come up with some really good recommendations on how this problem can be resolved, rather than just going ahead and saying, "Okay, we'll look at these different regulations to be changed, and leave it at that."
So those are my comments. I have to agree with Mr O'Neil. I think that we shouldn't rush into this and I think we should get this other background information.
Mr Eddy: I'm as agreeable as anyone on the committee, in fact maybe more agreeable, to sitting as long and to meeting as often as necessary to deal with all of the matters. But I have a particular concern with the first item raised, statutory authority. There's a difference of opinion here, but because these are referred to and involve exemption orders, I am very, very concerned, now that this matter has been brought up and discussed in the public domain, that there could result from this a legal challenge to an exemption order granting a temporary licence for the operation of a landfill site.
I know there are several of these that have been granted. I'm one of those who agree with them. They're very important, but I have a great concern about this particular matter. I think the Minister of Environment would want to correct it, just to go the extra step, if you will, to make sure that everything is legally in place, because there are people who are prepared to legally challenge many or most matters but could want to challenge this in particular.
Perhaps I'm overly concerned about this matter but I think it's of great importance and I would hope that we could take action, either through persuading the ministry and the minister directly to cover this problem with an amendment to the act or at least alerting all members of the House that there is a problem that should be acted upon immediately.
I just have a great concern, and I don't know whether anyone here can relieve my concern to any degree or not. I hope they can. But because of the controversial nature of exemption orders under the Environmental Assessment Act, I'm very scared, and that's why I think something should be done. Can somebody help me?
The Chair: If Mr Johnson will permit, I think staff have provided me with -- Mr Johnson was the next questioner, so I hope you won't mind if I just jump in quickly here.
As part of your research documents, part of the report for 1990-92, appendix A, item 4, states, "The standing committee on regulations may examine any member of the executive council or any public servant designated by any such member respecting any regulation made under an act that is under his or her administration."
Then also within the standing orders, clause 106(k) continues, "The committee shall from time to time report to the House its observations, opinions and recommendations as required by section 12(3) of the Regulations Act, but before drawing the attention of the House to a regulation or other statutory instrument the committee shall afford the ministry or agency concerned an opportunity to furnish orally or in writing to the committee such explanation as the ministry or agency thinks fit."
Mr David Johnson: Would you mind repeating that last part?
The Chair: The section again, the last part of it, is: "But before drawing the attention of the House to a regulation or other statutory instrument, the committee shall afford the ministry or agency concerned an opportunity to furnish orally or in writing to the committee such explanation as the ministry or agency thinks fit."
Mr David Johnson: Earlier you mentioned that there's a 120-day period for the ministry to respond.
The Chair: That's correct.
Mr David Johnson: Are those two linked together?
The Chair: No. Once the report is tabled in the House, then they would have, depending on whatever recommendations we've made, 120 days to respond.
Mr David Johnson: But before it's tabled in the House, they also have --
The Chair: We have that option of asking for either an oral explanation or a written one.
Mr David Johnson: I don't know what the schedule is, but as you pointed out, we have not too many meetings left before the break.
The Chair: Conceivably, two.
Mr David Johnson: So is it scheduled that at one of those meetings the various ministries would --
The Chair: I will just turn to the clerk and ask if we have a pressure of private bills upon us and if we would have some committee time before we adjourn.
Clerk of the Committee (Ms Tonia Grannum): At the December 8 meeting we do have six private bills on the agenda, and a lot of those they want to get in before the recess. Depending on whether the House rises on December 9 or the following week, then we might have that extra meeting.
Mr David Johnson: That extra meeting isn't scheduled because we're not sure that it's going to be there, but in all likelihood it will be there.
Clerk of the Committee: Yes.
Mr David Johnson: I frankly don't mind this simply being tabled in the House and then allowing the ministry to have the 120 days to deal with it and responding. As I understand it, under that clause there is a requirement for them to deal with the issue and to respond back. I wouldn't be one who would try to relieve Mr Eddy of his anxieties -- I think they're well placed -- but at least that's a way of dealing with the situation, and in view of our schedule we may not get back to this. So rather than just let it waft off into the breeze, we might be best to table it and then let the ministries have their 120 days.
The Chair: Can I just ask the clerk for one other explanation before we turn to Mr Hansen. The bills that are proposed to come before us on December 8, from your assessment, are most of them the revival of a range of corporations? Can you give us sort of an idea? Some of them definitely flow through this committee fairly easily and we could leave some time in the rest of that meeting to continue this discussion or invite someone from the respective ministries to come forward. I think we have some options there.
Clerk of the Committee: We have three revivals but we also have the County of Grey Act, and I know they specifically want to get their legislation in before January 1. There is another private legislation that's not a revival, but I can't recall which one it is right now. They're also concerned about the time frame. Depending on how long it takes to go through those two bills that aren't the revivals, we might have some time at the end.
Mr Hansen: Sort of going along with what Mr Eddy's talking about, maybe if we had a letter from the ministry to this committee, rather than taking the other approach and tabling it in the House, so we get an explanation to this committee to make a better decision.
Mr Eddy: Certainly the letter would be helpful, but I think a presentation with the viewpoint for discussion would be very helpful.
I wanted to ask about the County of Grey Act. Is it a matter of representation on county council?
The Chair: I suspect it is.
Mr Eddy: If it's simply that, it's not going to take very long, because we've been approving those. I think they're mostly reductions of the members of county council. There are alternatives in the act. We've been approving many of those on an ongoing basis.
Mr Hansen: Yes, we've had two of them already.
Mr Eddy: It sounds to me like there would be time. I think it's important enough to put it on the agenda and indeed deal with it, if we can, this aspect.
Ms Herbert: I was simply going to comment that of course my report and my referral to that particular regulation is a précis based on my communication with the ministry and the ministry's communication with me. I was going to suggest that if this committee had that correspondence, perhaps it may flesh it out a bit more. I think the clerk could provide that for the committee.
The Chair: Thank you, Ms Herbert, and I know that Miss Grannum will make sure that we have that.
Mrs Ellen MacKinnon (Lambton): The County of Grey Act: Is the county asking for name changes as well as the reduction of county councillors?
The Chair: That's Simcoe. I think this would be the third one that has come before us in a fairly short period of time. I think we could probably handle that expeditiously.
But let me clarify with the committee just to make sure that we are on track. As our order of business for next week, we will look at the private bills, I guess the six that are scheduled, the five that are coming before us, and then for the remainder of the meeting we will request that someone from the ministry --
Mr Hansen: We'd have to get a written response, I think. Was it a written response from the ministry? Is that not correct?
Ms Herbert: Yes, I believe a written response was received.
The Chair: You have a range of correspondence that the clerk will then distribute to the committee members.
Ms Herbert: I believe that Miss Grannum would have that.
Mr David Johnson: On all three?
Ms Herbert: Yes.
The Chair: So we will have the correspondence on the concerns raised in the reports, 1990-92, for the members. That will be discussed then as the latter portion of our meeting on December 8.
Mr David Johnson: There are three issues.
The Chair: There are three issues. That's why I said the issues that are flagged in this particular report will be the points for discussion as the latter part of our meeting on December 8. Is there a consensus on that then? Agreed.
Any other business at this point that the members wish to raise?
Mrs MacKinnon: I have a question. In the event that next week doesn't happen the way you have laid it out -- I must say it sounds wonderful -- will some of this die on the order paper?
The Chair: No.
Mrs MacKinnon: Okay, fine.
The Chair: No. We will deal with the pressing business of the private bills first, and then if we have room for the discussion on these reports and if in fact we do have a committee meeting the week after, we will have that as our order of business.
Mrs MacKinnon: But then the concerns that these people are bringing to us today will carry on when we reconvene, be it, whatever, March or April?
The Chair: That will then be for the committee to decide. If we want to request from the House leader's office a morning or something during the intersession, that is up to us, or we can then proceed to do it later on. But that's something where, having a paper record in hand, we can, with more knowledge, make that decision, either December 8 or 15.
I thank all the members and staff for their patience and input.
The committee adjourned at 1144.