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Legislature - Proclamation. Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board
In Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board (Ont CA, 2023) the Court of Appeal broadly considers legislative 'proclamation':[44] The discretion to determine when proclamation would occur is a power expressly provided through the commencement provision in the Act. Exercising this discretion was not ultra vires to the Minister. To the contrary, it was precisely what the commencement provision contemplated.
[45] While the Minister’s exercise of this lawful authority is entitled to deference, the power of a minister to defer proclamation is in no way unlimited.
[46] On this point, the Divisional Court held, at paras. 68-70:There is no presumption in Ontario that every enacted statute that is subject to proclamation will be proclaimed. On the contrary, Legislation Act, 2006, S.O. 2006, c. 21, Sched. F., contemplates that some legislation will never be proclaimed. Section 10.1 of the Act provides that legislation that is not brought into force within 10 years of enactment will be automatically repealed (unless the legislature adopts a resolution that it not be repealed).
In her leading text, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada, 2014), at paras. 24.19 and 24.23, Ruth Sullivan makes it clear that when legislatures choose to delay the commencement of legislation by making it subject to proclamation by the Lieutenant Governor in Council (“LGIC”), they may do so for a number of reasons, including achieving a political goal. As she puts it:Commencement can occur at the same time as enactment or it may be delayed. It also is possible that commencement may never occur. Statutes may be repealed before they are fully or even partially brought into force.
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Legislatures may choose to delay the commencement of legislation for one reason or another: to await events, to allow time to prepare administrative machinery, to give fair warning to the public, to achieve a political goal. In such cases the time chosen for commencement is set out or described in the Act or a power is given to the executive branch, usually the Governor General or Lieutenant Governor in Council, to bring the Act into force on a day within its discretion. It is possible to have parts of an Act come into force upon enactment while other parts are delayed. Also, the executive branch may be authorized to bring different provisions of an Act into force on different days [s. 8(3) of the Legislation Act does authorize this]. This authority is normally exercised by way of order or proclamation. [47] It is clear from this quote that Sullivan referred to the possibility that legislation may never be proclaimed on the basis that it is repealed before proclamation (either by a separate act or by the effect of the deemed repeal after 10 years pursuant to the Legislation Act 2006, S.O. 2006, c. 21, Sched. F.). Of course, acknowledging the possibility of the repeal of legislation not yet proclaimed is quite different than claiming the executive is under no obligation to proclaim enacted legislation, or that there is no presumption that enacted legislation will be proclaimed.
[48] The Canadian Constitution Foundation (“CCF”) intervened on the narrow question on the meaning of this statement in the Divisional Court’s reasons. According to the CCF, the commencement provision like the one at issue in this appeal only grants the executive the limited power to determine when to bring legislation into force, not whether to bring it into force at all.
[49] I agree that this statement requires clarification. I do not read the sentence in the Divisional Court’s reasons to mean that the Minister’s discretion is unfettered, or that it is open to a Minister to decide that legislation once enacted will never be proclaimed. Rather, read in context, I understand the Divisional Court simply to be reiterating the point from Sullivan that not all enacted statutes will in fact be proclaimed. For this reason, I would not accept that the Divisional Court erred in this analysis.
[50] That said, there should be no ambiguity as to the limits on the Minister’s discretion. Put simply, it would not be open to a Minister to decide that an enacted statute will never be proclaimed. Indeed, in oral argument, the respondent acknowledged that it would not be accurate to state that the Minister had the authority to decide never to proclaim enacted legislation.
[51] Section 8(1) of the Legislation Act provides that “[u]nless otherwise provided, an Act comes into force on the day it receives Royal Assent.” Commencement clauses within legislation thus represent an exception to this default standard.
[52] In the case of the Better for People, Smarter for Business Act, 2020, Royal Assent was given on December 8, 2020. Section 5 of Schedule 2 of this legislation provides that Schedule 2 “comes into force on a day to be named by proclamation of the Lieutenant Governor.”
[53] The discretion to exercise the authority conferred by this commencement provision is subject to the same constraints that apply to all exercises of ministerial discretion. The exercise of a discretion “is to be based upon a weighing of considerations pertinent to the object of the [statute’s] administration”: Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, at p. 140. See also C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 94.
[54] Here, the “perspective within which a statute is intended to operate” is to fulfil the purpose of the legislation by operationalizing the will of the Legislature. The legitimate grounds for delaying proclamation must be related to the conditions necessary for implementing the legislation. In this case, the appellants have not alleged the Minister acted for improper purposes or on the basis of irrelevant considerations.
[55] In its analysis, the Divisional Court also referred to s. 10.1 of the Legislation Act. This provision, which deems legislation not yet proclaimed to be repealed after 10 years, underscores the point that not all enacted legislation will be proclaimed, but does not relieve the executive of its continuing obligation to determine whether to exercise its statutory discretion under a commencement provision.
[56] The appellant and intervener relied on the House of Lords’ decision in R. v. Secretary of State for the Home Department ex p Fire Brigades Union, [1995] UKHL 3 (“Fire Brigades Union”). In that case, the court was required to construe s. 171(1) of the Criminal Justice Act, 1988, which provided that some provisions of the legislation “shall come into force on such day as the Secretary of State … may appoint.”
[57] In 1993, the Secretary of State had announced that those provisions would not come into force and that the existing non-statutory scheme would be replaced by a different non-statutory scheme. A majority of the House of Lords held that the Secretary of State had acted unlawfully by refusing to bring the legislation into force and pursuing this alternative course of action.
[58] The judges in the majority noted that a commencement provision confers discretion on the executive for the purpose of bringing the sections into force. They held that the Secretary of State was under a duty to keep under consideration from time to time whether or not to bring the provisions into force. He could not exercise the power so as to exclude its future exercise. In other words, the House of Lords held that it is for Parliament, not the executive, to repeal legislation.
[59] The Divisional Court distinguished Fire Brigades Union by stating, “In this case, the Minister has only chosen not to recommend proclamation at this time. He has not foreclosed the possibility of the Applicant being successful in obtaining proclamation of the legislation at a future date when the concerns identified by the Board have been fully addressed.” I agree with this analysis.
[60] For these reasons, I see no basis on which to conclude the Minister’s decision was ultra vires or unreasonable.
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