Commencement provisions provide discretion on when to bring laws into force, not whether to: court

Ontario Court of Appeal clarifies executive discretion for commencement provisions

Commencement provisions provide discretion on when to bring laws into force, not whether to: court
Sujit Choudhry, Hāki Chambers Global.

The Ontario Court of Appeal has clarified the executive discretion provided by commencement provisions in a ruling that dismissed a Christian college’s appeal of a Minister’s decision to recommend against bringing legislation giving it degree-granting status into force.

In Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board, the Canadian Constitution Foundation (CCF) intervened over statements in the Divisional Court’s reasons that could be interpreted as saying that the executive has the discretion to never bring legislation with a commencement provision into force.

According to s. 8(1) of the Legislation Act, an act comes into force the day it receives Royal Assent “unless otherwise provided.” Commencement provisions are the provisions that provide otherwise. There are more than 400 statutes in Canada with them, including more than 50 in Ontario that are in legislation yet to be in force, says Sujit Choudhry, who represented the CCF with Jesse Hartery.

“Commencement provisions are pervasive in Canadian law,” says Choudhry, head of Hāki Chambers Global.

“The Court of Appeal’s decision is important because it clarified that that's not the law. The discretion that a commencement provision grants is discretion about when to bring legislation into force, but not whether to bring it into force at all.”

Ontario’s Bill 213, the Better for People, Smarter for Business Act, gave the Canada Christian College and School of Graduate Theological Studies the right to call itself a university and grant degrees. The legislation received Royal Assent on Dec. 8, 2020, and provided that the amendments come into force on a day to be named by the Lieutenant Governor.

Under the Post-secondary Education Choice and Excellence Act, educational institutions seeking the status of degree-granting universities can apply to the Minister of Training, Colleges, and Universities for consent. The legislation also established the Postsecondary Education Quality Assessment Board to make recommendations on ministerial consent.

When the Board completed its review of Canada Christian College, it found the college failed to meet several established standards from the 2019 Manual for Private Organizations Applying for Ministerial Consent. The college fell short on governance, administrative capacity, financial stability, and academic decision-making, according to the Board, which recommended against approval of the college’s application.

Ontario’s Minister of Training, Colleges, and Universities agreed with the board and advised against proclaiming the amendments in force. Canada Christian College sought judicial review of the Minister’s and the Board’s decisions, and the Divisional Court dismissed its application. Both the Minister and the Board were respondents in the Court of Appeal case.

In finding the Minister’s decision not to recommend proclamation reasonable in the circumstances, the Divisional Court noted that there is no presumption in Ontario that every enacted statute subject to proclamation will be proclaimed.

Canada Christian College appealed the Minister’s decision not to recommend proclamation. The College argued that the Divisional Court erred in finding the Minister’s decision was not justiciable, in finding the process by which the Minister grants university status was intra vires, and in finding the hybrid process was procedurally fair. But the Court of Appeal found no error on any of these points and dismissed the appeal.

The Canadian Constitution Foundation intervened on the meaning of a statement in the Divisional Court’s reasons that “there is no presumption in Ontario that every enacted statute that is subject to proclamation will be proclaimed.” The CCF argued that the legislation’s commencement provision, which provides the Minister discretion to determine when proclamation will occur, grants the executive the limited power to determine when the legislation is brought into force. The commencement provision does not give them the power to determine whether the legislation will come into force at all, said the CCF.

Justice Lorne Sossin wrote the reasons for the Court of Appeal and said it did not read the Divisional Court’s reasons as describing the Minister’s discretion as “unfettered.” The court was repeating a point from another decision that not all enacted statutes will be proclaimed. To clear up any ambiguity, Sossin continued that a Minister does not have the authority to decide that an enacted statute will never be proclaimed.

The discretion conferred by a commencement provision is under the “same constraints that apply to all exercises of ministerial discretion,” said Sossin. According to the 1959 Supreme Court of Canada decision, Roncarelli v. Duplessis, the discretion’s exercise must “be based upon a weighing of considerations pertinent to the object of the [statute’s] administration.”

In the case of the Better for People, Smarter for Business Act, the only legitimate grounds for delaying proclamation are those related to “the conditions necessary for implementing the legislation.” The appellants did not argue that the Minister acted out of “improper purposes” or based on “irrelevant considerations,” said Sossin.

The Divisional Court also said that the Minister merely chose not to recommend proclamation “at this time” and did not foreclose the possibility that Canada Christian College would successfully obtain proclamation in the future when it addressed the Board’s concerns.

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