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Statutes and Statutory Interpretation - Transitional Law

. Friends of Simcoe Forests Inc. v. Minister of Municipal Affairs and Housing

In Friends of Simcoe Forests Inc. v. Minister of Municipal Affairs and Housing (Div Ct, 2021) the Divisional Court considered the unusually-litigated issue of 'transitional' statutory law:
Purpose of Transitional Law

[43] Ruth Sullivan discusses the sources of transitional law in her text Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014). As summarized by her at ch. 25, the sources of transitional law include (i) the Canadian Charter of Rights and Freedoms (see s. 11(g) which provides protection to people charged with offences against retroactive legislation that makes conduct an offence when it was not an offence at the time of the impugned conduct), (ii) the general rules found in federal and provincial statutes like Interpretation Acts and (iii) the common law that involves concepts like vested rights and the distinctions between substantive and procedural law. However,
25.4 [t]he final and most useful source of transitional law is the new legislation whose application is in issue. Whenever the law is changed, the law-maker must address the transitional problems that may arise when the new law comes into effect. [Emphasis added.]
[44] Professor Sullivan also focuses on the principles underlying transitional law. As put by her, “[a]n appreciation of the concerns underlying transitional law provides a sound basis for dealing with transitional issues in a coherent and functional way” (para. 25.5). Central to understanding transitional law is an understanding of the rule of law and the values it serves:
25.6 The most compelling concern underlying transitional law is the rule of law and the values served by the rule of law - certainty, predictability, stability, rationality, and formal equality. One of the great virtues of law is that it provides a stable framework within which people can carry on their activities. Law that changes too frequently or quickly or in an unexpected way undermines the sense of security of citizens and their willingness to participate in the relationships and activities on which a stable society and economy depend. Principles of fairness are also important. [Emphasis added.]
[45] What is clear from these quotes is that transitional law is law that deals with what rules apply when there is a change in the law.

Dictionary Definition of “Transitional”

[46] This understanding is consistent with the dictionary definitions of the word “transition” and “transitional”. In the Concise Oxford English Dictionary, 12th ed. (New York: Oxford University Press, 2011), the word “transition” is defined as “the process or a period of changing from one state to another” (emphasis added). In the Cambridge Advanced Learner’s Dictionary, 4th ed. (Cambridge: Cambridge University Press, 2013) the adjective “transitional” is defined as “belonging or relating to change, or the process of change, from one form or type to another” (emphasis added).
Caselaw

[47] In Her Majesty the Queen in Right of Ontario v. Miller, 2014 ONSC 6131, 31 M.P.L.R. (5th) 308, Harvison Young J. (as she then was) dealt with a motion for leave to appeal from a decision of the Ontario Municipal Board as to whether the transitional regulation under the PGA applied. At para. 19 of her decision the motion judge made the following statement regarding the purpose of the transitional regulation:
The purpose of the transitional regulation is to grandfather persons who have been “in the mill” (to use the respondents’ term) and, out of a sense of equity, to protect them from the unfairness of changing rules within a planning system that is, and must be, dynamic.
[48] The LPAT in Bolton North Hill Landowners Group Inc. v. Peel (Region), 2020 CanLII 89024 (ONLPAT) states at para. 57 that “the purpose of the transitional regulation is to protect against the unfairness of changing ‘rules’ so to speak.”

....

[68] I appreciate that governing is not the role of the courts, hence the strong presumption in favour of the vires of a regulation. However, interpreting laws in a way that upholds, rather than undermines, the rule of law is fundamental to the court’s mandate. In this case the Minister exempted a proceeding from the application of the policies that the Lieutenant Governor in Council had adopted, and he did so under a legislative regime that granted him authority to regulate to provide for transitional matters. Transitional lawmaking is a necessary part of upholding the rule of law, as changes in the law do get made on a regular basis. Mechanisms must be in place to decide what law is to apply in the face of those changes. Under the PGA the Minister was given the authority to make regulations addressing these issues. The Minister was not given the authority to exempt certain proceedings from important planning policies that the Lieutenant Governor in Council had adopted and not changed. If his law-making power was to extend to overruling the Lieutenant Governor in Council on policy issues, the provision granting him that authority should have said so explicitly. Otherwise, we are left with a regime where every time a growth plan changes midstream (which the Minister concedes is common) it is the Minister, not the Lieutenant Governor in Council, who gets to decide whether a policy that the Lieutenant Governor in Council has approved and not changed applies to the proceeding. This is not how the PGA is structured nor is it consistent with policy making that draws on the expertise of all levels of government (one of the purposes of the PGA).

[69] It is also not consistent with the rule of law. When the law changes midstream during a proceeding, there are necessarily concerns about stability, predictability, consistency and fairness that arise. It is the role of transitional law to mitigate those concerns. It is not the role of transitional law to change the rules when the body charged with making the law at issue has made no change to that law. If it were, transitional law would only add to the unpredictability and unfairness of the legal framework and increase the likelihood that the citizens who are governed by that framework lose faith in its integrity.


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