Facts: In 2020, the legislature passed a bill giving Canada Christian College and School of Graduate Theological Studies (CCC) the right to call itself a university and the power to grant degrees. Schedule 2 provided that the legislation would come “into force on a day to be named by proclamation of the Lieutenant Governor”. The bill received Royal Assent on December 8, 2020.
Meanwhile, the Minister of Colleges and Universities asked the Postsecondary Education Quality Assessment Board provide recommendations on whether it was appropriate for CCC to become a university. The Board produced two reports concluding that CCC should not become a university based on concerns in areas of governance, administrative capacity, financial stability and academic decision-making. Based in part on the Board’s analysis, the Minister then recommended to Cabinet that the legislation not be proclaimed into force at this time.
CCC sought judicial review of both the Board’s and the Minister’s decisions. CCC argued that the Minister’s decision to seek recommendations from the Board was ultra vires; the Board’s process was unfair and its findings unreasonable; and the Minister’s recommendation against proclamation undermined the will of the legislature.
The Divisional Court dismissed the application, holding that the Board’s recommendations were not justiciable because the Court had power to grant relief only in relation to “decisions” and that the Minister had the power to ask the Board for recommendations about CCC even though the legislature had passed a bill granting CCC the right to call itself a university. The Court pointed out that one of the purposes of the Post-secondary Education Choice and Excellence Act, 20001 (PECE Act), which created the process via which institutions can achieve university-status, is quality-assurance. Therefore, the Minister’s request for recommendations was consistent with the purpose of the relevant legislation.
Finally, the Court held that the Minister’s decision was legislative, not adjudicative in nature, Further, there is no presumption in Ontario that every enacted statute that is subject to proclamation will be proclaimed. Consequently, the Minister’s recommendation against proclamation did not undermine the legislature’s will.
The CCC appealed the decision in respect of the Minister’s decisions.
Decision:
Appeal dismissed (Roberts, Trotter and Sossin JJA)
The first issue before the Court was whether the Minister had the power to seek Board recommendations on the suitability of a specific institution becoming a university when the legislature had already granted that institution university-status. The Court ruled that the Minister’s decision to refer CCC’sw application to the Board for recommendation was rooted in the authority provided by the PECE Act. Bearing in mind the context and purpose of the PECE Act, it granted the Minister a broad discretion over referrals of matters to the Board. The Minister could use this discretion to seek Board recommendations even when doing so was a means of effectively overriding the will of the legislature.
Secondly, the Court ruled that the Minister’s recommendation against proclamation was not unreasonable and did not contradict the legislature’s will. He did not reject proclamation entirely, rather he recommended that the proclamation not move forward “at this time”. The Court held that the commencement provision in the PECE Act expressly gave the Minister the power to decide when proclamation should take place. However, the Court clarified that the Minister’s discretion as to the timing of proclamation is not unfettered. It would not be open to a Minister to decide that an enacted statute will never be proclaimed. The discretion to exercise the authority conferred by the 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.2
Finally, the Court considered CCC’s argument that the process was unfair. Whether the Minister’s actions were part of an executive or legislative function (or both), those actions did not breach any fairness rights to which CCC was entitled. CCC was granted extensive opportunity to make submissions to the Board and the appellant’s final responses were before the Board when it made its decision, in addition to summaries prepared by the Board secretariat. If there was a duty to give reasons, that duty was met by a Decision Note signed by the Minister, which clearly set out the recommendations of the Board, and grounds for the Minister’s decision.
Commentary:
On its face, this case appears to move in two opposing directions. Regarding the Minister’s request for Board recommendations, the Court indirectly held that the Minister has the power to override the legislature’s will. Yet in its ruling that the executive cannot choose to never proclaim a statute, the Court affirmed the importance of the legislature’s sovereignty.
When ruling on the Minister’s request for recommendations, the Court of Appeal noted that “[t]he Divisional Court rejected CCC’s argument that this language did not authorize the Minister to refer matters to the Board as a means of effectively overriding the will of the legislature. I see no error in this analysis” [35-36]. The Court of Appeal seems to be holding that the Minister can lawfully overrule the will of the legislature. However, this ruling is not quite as controversial as it first appears. The Court emphasized that, “[l]ooking at the text, context and purpose”, the PECE Act gives the Minister a discretion to seek recommendations from the Board [40]. Although not spelled out as such, the Court’s decision may be understood to mean that the Minister can override the legislature’s will as expressed through the legislation granting CCC university status in order to give effect to the legislature’s will as expressed in the PECE Act.
Unfortunately, the Court did not address the fact that it was dealing with two conflicting wills of the legislature. Nor did it offer any guidance for courts, administrators and lawyers, in situations where more than one statute may be in play, as to which one prevails in defining the scope of the executive’s mandate. Perhaps the Court could have avoided this confusion altogether by reframing its analysis, since it is difficult to see how the mere act of asking for recommendations—as opposed to making the decision not to proclaim legislation—could be capable of undermining the legislature’s will.
Contrastingly, the Court of Appeal firmly asserted the legislature’s sovereignty in holding that a Minister cannot choose to never proclaim an enacted statute. Although it chose not to disagree with the Divisional Court’s claim that “[t]here is no presumption in Ontario that every enacted statute that is subject to proclamation will be proclaimed” [68], the Court of Appeal clarified that the Divisional Court meant only that legislation may be repealed before it is proclaimed.
Overall, this judgment is a fascinating example of how difficult it can be for the courts to clearly define the balance of power between the executive and the legislature.
- SO 2000, c 36, Sch ↩︎
- Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121, at 140; CUPE v Ontario (Minister of Labour), 2003 SCC 29, at para 94. ↩︎