Simon's Megalomaniacal Legal Resources

Statutes and Regulations - Proclamation

. Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board

In Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board (Div Ct, 2022) the Divisional Court considered the interesting issue of the executive government's discretion regarding proclaiming legislation:

[67] In this case the “legislature’s will” was expressed through Bill 213, which provided that the amendments at issue would only come into force on a day to be named by proclamation of the Lieutenant Governor.

[68] 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of the Act provides that legislation that is not brought into force within 10 years of enactment will be automatically repealed (unless the legislature adopts a resolution that it not be repealed).

[69] 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 Statutes may be repealed before they are fully or even partially brought into force.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.

[70] In this case the legislature expressed its will by choosing to delay the commencement of the amendments at issue in Bill 213. In doing so it gave the Lieutenant Governor the discretion to decide when to proclaim the legislation. As noted, that discretion includes the power to never proclaim the legislation and the power to only proclaim part of the legislation. While it is not for this court to decide why the legislature exercised its will in this way, it is worth noting that when Bill 213 was enacted in 2020 the Minister had referred CCC’s requests to the Board, the Board process was not complete, and the Board had not yet made its recommendations. Those recommendations were made in May of 2021. It is also worth noting that there was opposition to CCC’s requests expressed at the legislative committee level.

[71] The Applicant submits that when the legislature gives the Lieutenant Governor the discretion to decide when to proclaim the legislation, there are limits on that discretion. In this regard counsel referred us to the Supreme Court of Canada’s decision in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121. In Roncarelli the Court, at p. 140, clearly found that “no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.”

[72] There is no foundation for suggesting that the Minister’s decision to refer or its decision to recommend against proclamation at this time was an arbitrary exercise of discretion for a capricious or irrelevant purpose.

[73] The Applicant also referred us to the decision by the House of Lords in R. v Secretary of State for the Home Department, ex p Fire Brigades Union, [1995] UKHL 3, [1995] 2 A.C. 513. In that case Parliament had passed legislation providing for compensation for victims of violent crime. The legislation provided that certain provisions were to come into force on a day to be named by the Secretary of State. After the legislation was passed, the Secretary of Sate, instead of naming a date for it to come into force, decided to adopt a new tariff non-statutory scheme. A majority of the House of Lords held that the Secretary of State had abused his power. However, they did so not on the basis that he had not proclaimed the legislation in question into force but, rather, because by adopting a new tariff non-statutory scheme, he had put himself in a position where it was no longer possible for him to exercise the commencement date power he had been given by the legislature. 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.

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[86] In Reference Re Canada Assistance Plan (BC), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525 at p. 558, the Supreme Court of Canada confirmed the following:

A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.

[87] The decision about whether to proclaim legislation into force is a legislative function exercised by the executive. It is also a decision based on grounds of public policy. Therefore, procedural fairness does not apply.