REGS Committee Report
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39th Parliament, 2nd Session
The Standing Committee for the Scrutiny of Regulations has the honour to present its
- Pursuant to its permanent reference, section 19 of the Statutory Instruments Act, R.S.C. 1985, c.S-22, and the order of reference approved by the Senate on November 20, 2007 by the House of Commons on November 21, 2007, the Joint Committee wishes to draw the attention of the Houses to its views on certain issues relating to the incorporation by reference of external materials into regulations.
- When Parliament confers a power to make regulations, the regulation-maker usually exercises this power by drafting the text of the regulation to be enacted. The regulation-maker may also decide that the contents of an existing document are what should be used in the regulation it intends to enact. One way to make the contents of such a document part of the text of the regulation would be to reproduce it word for word in the regulation. Alternatively, the regulation-maker can simply refer to the title of the document in the regulation. The contents of the document will then be said to be “incorporated by reference”. The legal effect of incorporation by reference is to write the words of the incorporated document into the regulation just as if it had actually been reproduced word for word. The incorporation by reference of an existing document is no more than a drafting technique, and a regulation-maker need not be granted any specific power in order to resort to this technique. This is referred to as “closed” or “static” incorporation by reference.
There are many examples of the use of the technique of incorporation by reference throughout federal regulations. For instance, section 6.6(1) of the Aviation Occupational Safety and Health Regulations provides that
6.6 (1) Where there is a hazard of a foot injury on an aircraft, protective footwear that meets the standards set out in CSA Standard Z195-M1984, Protective Footwear, the English version of which is dated March, 1984 and the French version of which is dated December, 1984, shall be used.
This section provides for the incorporation by reference of the relevant material as it exists at the time it is made part of the regulation. In other words, if the material is amended after its incorporation, the amendment will not be automatically incorporated. A regulation-making authority wishing to adopt a subsequent amendment to the referentially incorporated material will have to amend the incorporating regulation.
- An enabling provision may also confer on a regulation-making authority the power to incorporate by reference future amendments to existing material. One way in which this can be achieved is by drafting the enabling provision in a manner that confers a broader power. For example, if the regulation-making authority is given a power to “prescribe” or “fix” safety standards for the transportation of dangerous goods, subsequent amendments to the material originally incorporated will have to be included in the incorporating regulation by way of amendments to the regulation. On the other hand, a power to make regulations “respecting” safety standards for the transportation of dangerous goods is broader, and a regulation providing that it includes future amendments to the incorporated document could be considered to be a regulation “respecting” such standards. A second way to confer this wider power is to specifically provide in the enabling statute that regulations may be made incorporating material “as amended from time to time” (referred to as an “open”, “ambulatory”, “dynamic” or “rolling” incorporation by reference). In both cases, once material is incorporated “as amended from time to time”, any change to the incorporated material will automatically become part of the incorporating regulation.
It has always been the position of the Joint Committee that, absent an express grant of authority or a clear indication to the contrary in the enabling statute, the incorporation by reference of external material is proper only where a fixed text is incorporated, as opposed to a text “as amended from time to time”. In its Second Report (Statutory Instruments No.1, Second Session, Thirtieth Parliament, 1977), the Joint Committee advised both Houses of Parliament that
The incorporation into statutory instruments of external documents ... is acceptable provided a fixed text is incorporated and not a text as amended from time to time by an outside body. The Committee insists that any such amendment be considered by Parliament’s delegate and, if thought desirable, incorporated by positive amendment to the statutory instrument into which the original standard, document and so on was incorporated. To allow automatic amendment is to permit someone other than Parliament’s delegate to make subordinate legislation and to acquiesce in the amendment of a statutory instrument, and hence the making of a new statutory instrument, outside the procedures prescribed by the Statutory Instruments Act.
Where subordinate legislation by incorporating or referring to external documents occurs, the Committee calls for the incorporation of a reference to a fixed text or for an undertaking that no amendment to the external document will be regarded as incorporated into the statutory instrument which contains the subordinate legislation, any amendment which it is desired to include in the statutory instrument being the subject of specific amending action.
- The foregoing represents the view adopted by the Joint Committee since its inception over thirty years ago. It is rooted in the rule against subdelegation (often stated by the Latin maxim delegatus non potest delegare – “a delegate cannot delegate”), which reflects the legal principle that a person to whom a power to legislate has been delegated may not redelegate that power to someone else unless clearly authorized to do so by law. In relation to regulations, this means that a given authority, whether it be the Governor in Council or a minister, board, commission or some other authority, that is empowered by statute to make regulations must not, in the absence of a clear grant of power to do so, purport to authorize another person or body to act in its stead. This is intended to protect the legislator’s choice as to who is to exercise the delegated power. It has always been the view of the Committee that the incorporation by reference of external material into regulations “as amended from time to time” amounts to a subdelegation of regulation-making power, in that it will be the body amending the incorporated material, and not the authority on whom the power to make the regulations has been conferred, that will determine the content of the regulations.
- The position of the Joint Committee in this regard simply reflects the longstanding, widely held view of the technique of incorporation by reference in the context of subdelegation. For example, in The Interpretation of Legislation in Canada (2nd edition, p.73), Professor Pierre-André Côté concludes that “Application of the maxim delegatus non potest delegare to regulations may lead to a finding that they are ultra vires where, lacking an express enabling provision, an ambulatory reference is made to a[n] ... enactment from another authority.” Dussault and Borgeat (Administrative Law: A Treatise, 2nd edition, volume 1, pp.419-420) also recognize that “ambulatory” or “open” incorporation by reference may involve a subdelegation of authority:
- The Joint Committee is in full agreement with the commentators quoted above. Since when external materials are incorporated by reference into regulations the incorporated material becomes part of the regulations, to allow automatic incorporation of future amendments to the incorporated document (by incorporating it “as amended from time to time”) is to allow someone other than Parliament's delegate to make subordinate legislation. In effect, the power to make the subordinate legislation will have been subdelegated.
- While there was a time when departments and agencies of the federal government also accepted this view, it is now asserted by regulation-making authorities that incorporation by reference of material “as amended from time to time” is acceptable even in the absence of clear authority. Apparently, the current position adopted by the Department of Justice is that open incorporation by reference involves no element of subdelegation of legislative powers. This conclusion seems to be drawn chiefly from an analysis of certain decisions of the Supreme Court of Canada concerning the “inter-delegation” of powers between the federal and provincial governments and concerning constitutional language requirements. For the reasons discussed below, however, it is clear that the simple transposition of constitutional law principles clothed in language of delegation to administrative law confuses and obscures the issue.
- The Canadian constitution divides legislative powers between the Parliament of Canada and the provincial legislatures. Each level may only exercise those legislative powers assigned to it. As used in constitutional law, “delegation” refers to the delegation of federal power to the provinces, or of provincial power to the federal level of government. This is often termed “inter-delegation”. Such a delegation of legislative power has been held by the courts to be unconstitutional on the ground that it disturbs the allocation of powers between the federal and provincial governments (Attorney General of Nova Scotia v. Attorney General of Canada,  S.C.R. 31.).
- While there is clearly no objection to Parliament referentially incorporating a law of a province, or vice versa, as that law exists at a particular time, the argument has been raised that in such circumstances the open incorporation of a law “as amended from time to time” amounts to a violation of the constitutional principle against delegation. This view was rejected by the Supreme Court of Canada in Coughlin v. Ontario Highway Transport Board,  S.C.R. 569, in which it was held that federal legislation incorporating provincial legislation as amended from time to time did not constitute a delegation of federal legislative power.
- There were two bases for the decision of the Supreme Court in Coughlin. First, it was noted that the federal law in question incorporated legislation validly enacted by the province for its own purposes pursuant to the powers constitutionally allocated to it. From this, it was concluded that the province, having been given no legislative powers it did not already possess, could not be said to have been acting as a delegate in making the referentially incorporated legislation. In short, the incorporated provincial legislation had a valid purpose independent of the federal legislation. Second, since the federal Parliament was free to amend or revoke the incorporation by reference at any time, it could not be said that Parliament had surrendered its jurisdiction to the province. As the open incorporation of provincial legislation involved neither the acquisition of new jurisdiction by the province nor the surrender of federal jurisdiction to the province, there could be no question of the delegation of legislative powers.
- Coughlin, and the subsequent cases in which it has been affirmed, address the question of the extent to which open incorporation by reference by one level of government of the legislation of the other is constitutionally permissible. From these cases, however, the Department of Justice apparently reached the conclusion that the referential incorporation in regulations of external material “as amended from time to time” can never be said to constitute a subdelegation of the legislative power conferred by the enabling statute. It is this simplistic transfer of a principle of constitutional interpretation to the area of administrative law that the Committee finds to be inappropriate and misleading.
- The term “delegation” as it is used in the context of constitutional law addresses different questions than the term “subdelegation” in the context of administrative law. The overall concern in the constitutional cases is whether the constitutional allocation of jurisdiction has been respected. The acquisition by a province of jurisdiction not assigned to it under the constitution, or the surrender by the federal Parliament of jurisdiction assigned to it by the constitution, would indicate a failure to abide by the constitutional allocation of powers. The courts have concluded that open referential incorporation of the legislation of one level of government by the other does not offend this allocation of powers because it entails neither the acquisition of new powers nor the abdication of jurisdiction.
- The Department of Justice is now evidently of the belief that the incorporation by reference into regulations of external documents “as amended from time to time” should be seen to be legitimate notwithstanding the absence of clear authority in the enabling legislation, there being no principle in law to the effect that to incorporate legislation as it exists from time to time constitutes a subdelegation. Based on the constitutional inter-delegation cases, it is claimed that whether or not there is subdelegation depends on whether the authority to make the incorporated material is inherent in the jurisdiction of the legislative body making it or in the legislative body which enacted the incorporating legislation. As explained above, such a test has been posited in relation to the principle that Parliament may not delegate its legislative powers to the provinces and vice versa. It is for the purpose of determining whether there has been such a delegation.
- The notion of “subdelegation” in the realm of administrative law is entirely distinct from constitutional principles dealing with the inter-delegation of powers between the federal and provincial levels of government. The mere linguistic similarity between the two terms should not be allowed to obscure the distinction. As is observed in John Mark Keyes’ Executive Legislation (p.284):
- It is self-evident that, subject to any constitutional limitations, Parliament may pass any law it wishes. Where Parliament passes legislation embodying an incorporation by reference, there can be no question of “subdelegation”, that is the further delegation by a delegate of powers conferred on that delegate, since Parliament cannot be said to be a delegate in the first place. The situation is therefore quite different with respect to regulations. Firstly, since regulations are delegated legislation, the power of a regulation-making authority is restricted by the terms of the conferral of authority in the parent statute. Secondly, the application of the maxim delegatus non potest delegare means that absent a clear indication to the contrary, regulation-making powers must be exercised by the authority on whom they have been conferred by the parent statute and may not be delegated, either formally or in effect, to some other body. To conclude that open incorporation by reference by regulation cannot constitute subdelegation because the regulation maker remains free to revoke the incorporating regulation would render the entire notion of subdelegation nugatory. Since a regulation may always be amended, the same argument would be applicable to any provision whatsoever, making subdelegation an impossibility. In addition to resting on a misapplication of principles derived from constitutional cases dealing with inter-delegation of powers between the federal and the provincial levels of government to administrative law questions of subdelegation, the Department’s conclusion fails to recognize the fundamental distinction between primary and delegated legislation.
- The failure to grasp this distinction leads to an erroneous conclusion. This may be illustrated by reference to the judgment of the Supreme Court of Canada in Attorney General of Ontario v. Scott,  S.C.R. 137. Here, the Court concluded that legislation passed by the provincial legislature which contained an open incorporation by reference of certain laws of England involved no delegation of provincial power. Ignoring the distinction between delegation as a concept of constitutional law and subdelegation as an administrative law concept, it has been suggested that Scott stands for the principle that the use of open incorporation by reference does not involve subdelegation. This is simply untrue. Delegation in this context concerns the distribution of powers between the federal Parliament and the provinces. Since the incorporation by reference in Scott clearly could in no way disturb this distribution, there could be no question of delegation. (Put another way, even if the legislation in question was seen to involve a delegation, it would not be a constitutionally prohibited inter-delegation in any event.) Moreover, since the province was not acting as a delegate, questions of subdelegation were entirely irrelevant. This serves to demonstrate that while constitutional cases concerned with preserving the federal-provincial allocation of powers use the language of “delegation” and cases exploring the duty of a delegate to act personally use the language of “subdelegation”, they are not directed toward the identical underlying questions. A facile transposition of conclusions from one situation to the other due to the linguistic similarity leads one astray.
- In Regina v. Glibbery (1962), 36 D.L.R. (2d), 548, the Ontario Court of Appeal upheld the validity of federal regulations making provincial highway traffic laws applicable on military bases. The issue the Court was asked to decide in Glibbery was that of the constitutionality of the referential incorporation, that is whether it offended the allocation of powers between federal and provincial governments. It was concluded that the open incorporation by reference of provincial highway traffic laws was not a constitutionally prohibited delegation:
- The Court also concluded that to view the power to incorporate by reference as extending only to fixed incorporations in this instance “would defeat the obvious effort of the legislation to impose a conformity of laws in order to avoid the confusion and inconvenience which could otherwise occur.” This would seem to indicate that the Court was of the view that the authority to make regulations embodying open incorporations by reference was necessarily implied in the scheme of the enabling statute. The issue of subdelegation in the context of administrative law, however, was never expressly addressed. There was no exploration of questions relating to the authority of a delegate and the integrity of the principal’s choice of delegate. There is, for example, no reference to the maxim delegatus non potest delegare nor any discussion of the limits of the powers of the Governor in Council arising, not out of his status as a federal entity under the constitution, but out of his status as a delegate of Parliament. For this reason, the case cannot be seen as authority for the proposition that a delegate can in every case use open referential incorporation when making regulations. (As well, the judgment is muddied by the Court’s failure to distinguish between Parliament and the Governor in Council, who is merely Parliament’s delegate. At one point, for example, the Court refers to Parliament’s “own regulations”.)
- It has also been claimed that authority for the proposition that the conferral of a power to make regulations in all instances carries with it the power to incorporate by reference external materials as they are amended from time to time can be found in the judgment of the Supreme Court of Canada in Reference re Manitoba Language Rights (No.3),  1 S.C.R. 212. Again, this is a case dealing with a constitutional question, this time the application of constitutional language requirements to referentially incorporated documents.
- Section 133 of the Constitution Act, 1867 requires that the Acts of the Parliament of Canada and of the Legislature of Quebec be printed and published in both English and French. (In Attorney General of Quebec v. Blaikie,  2 S.C.R. 1016, the Supreme Court of Canada had concluded that this provision also applied to delegated legislation.) In 1985, the Supreme Court had ruled that the scope of section 133 and of section 23 of the Manitoba Act, 1870 were identical (Re Manitoba Language Rights,  1 S.C.R. 721), and that section 23, and therefore section 133 as well, applied to “instruments of a legislative nature”. In the subsequent Reference re Manitoba Language Rights (No.3), the Court was asked to clarify which documents were subject to the section 133 requirements.
- As regards the application of section 133 to documents incorporated by reference in the laws of Manitoba, the Court indicated there were two threshold questions that needed to be answered. First, is the primary instrument of a legislative nature? Second, is the incorporated document essential to understanding the primary instrument? If these questions were answered in the affirmative, one proceeded to apply what the Court termed “the bona fide test” or “critère de la raison légitime”. In the words of the Court, once the threshold questions have been answered in the affirmative,
- The Court went on to describe the factors which may be taken into consideration to determine whether or not there are “legitimate reasons” for the referential incorporation of a document that exists in only one official language. The occasions when a government can justify the incorporation of a document generated by the government itself in only one language into legislation emanating from that government will be extremely rare. In Manitoba Language Rights (No. 3), the Court concluded that every referential incorporation of a document generated by the Manitoba government was subject to the constitutional language requirements. Indeed, given the Court’s conclusion that all instruments or documents created by the government of Manitoba and incorporated by reference in the laws of Manitoba are subject to the constitutional language requirements, and its express application of the bona fide test only to documents originating from outside the government of Manitoba, it is questionable whether the bona fide test applies to incorporated documents originating with the incorporating government in the first place. Even assuming the test does apply to such documents, the test will be an extremely stringent one. As for incorporated material originating from an independent external body, the Court enunciated by way of example two situations where there could be legitimate reasons to incorporate unilingual material: where cooperative arrangements between governments are being implemented, and where standards developed by non-governmental bodies, particularly those with a high level of technical expertise, are incorporated, and those standards are continually changing.
- Seeking to extrapolate, the Department of Justice has argued that the reasoning in Reference re Manitoba Language Rights (No.3) with respect to constitutional language requirements can be transposed to the administrative law sphere. In other words, the same grounds that would justify the incorporation by reference of external material that existed in only one official language will also justify the open incorporation by reference of external material in regulations, regardless of the terms of the relevant enabling powers. This is said to follow from what is perceived as the Court’s tacit approval of open incorporation by reference in the context of constitutional language requirements. By giving the continual revising of technical standards developed by standard-setting bodies as one legitimate reason for permitting the incorporation of technical standards without translation, and as this would presume the open incorporation by reference of such standards, this is said to evince an intent to condone the use of this technique in all circumstances.
- The Joint Committee views this reasoning as tenuous at best. The question before the Court in Reference re Manitoba Language Rights (No.3) was the application of constitutional language requirements to referentially incorporated documents. To suggest that the remarks of the Court on this question can be applied equally to the determination of whether a particular instance of incorporation by reference is authorized under a given statute ascribes to the reasoning of the Court a scope it simply does not have. In the context of regulation-making powers, the question is not whether external material incorporated by reference “as amended from time to time” engages constitutional language requirements, but rather whether the power to make such an incorporation by reference has been conferred on a delegate in a particular instance.
- The Supreme Court in Reference re Manitoba Language Rights (No.3) did no more than identify the incorporation by reference of technical standards “as amended from time to time” as being a situation in which the impracticality of maintaining an authoritative translation was likely to be a bona fide reason for incorporation without translation. This of course presumes that a particular open incorporation by reference of such a standard was authorized by the relevant enabling legislation in the first place. In referring to the examples of incorporation by reference in the legislation of Manitoba that were provided in evidence, the Court cannot be seen to have expressed any view whatsoever on their validity, or the relevant principles pertaining to the use of the techniques embodied in the examples provided. These matters were simply not before the Court. In fact, both of the specific examples of open incorporation by reference mentioned by the Court were enacted pursuant to enabling powers that explicitly authorized incorporation by reference of external material “as amended from time to time”. It is therefore the case that any question as to whether open incorporation by reference of the standards in question was permitted had already been conclusively answered by the legislature in any event.
- Several court decisions in addition to those already discussed have been cited which are claimed to lend support to the position advanced on behalf of the government. The decision in Re Meherally et al. and Minister of National Revenue (1987), 37 D.L.R.(4th), 609, involved unemployment insurance regulations which included as insurable employment employment of those appointed under provincial legislation as employees of Her Majesty in right of a province. The Federal Court of Appeal held that this incorporation by reference
- In his concurring judgment, Hugesson J. found that the matter dealt with by the incorporation was one that of necessity had to be left to provincial law, observing that
- Although it is somewhat ambiguous, the Joint Committee takes the decision in Meherally to stand for the following:
- Only the dissenting reasons of MacGuigan, J. in Meherally address the issue of subdelegation, recognizing that it is the authority of the Commission that should be in question, not that of Parliament:
- Calder v. Minister of Employment and Immigration,  1 F.C. 842 (F.C.A.), also concerned unemployment insurance regulations. Paragraph 58(u) of the Unemployment Insurance Act, 1971 authorized the Canada Employment and Immigration Commission to make regulations “averaging any rates of unemployment for the purposes of paying extended benefits and prescribing the manner in which such averaging shall be carried out”. These rates were used to determine the length of the period in respect of which extended benefits could be paid. Pursuant to this authority, the Commission made a regulation adopting “the average of the unadjusted monthly national or regional rates of unemployment respectively as determined by Statistics Canada for the most recent twelve-month period immediately preceding the time for which those rates are available”. It was argued by the applicants that this constituted an unauthorized subdelegation, in that it did not prescribe the manner in which the average regional and national rates of employment should be determined, but rather simply left the determination to Statistics Canada.
- The Federal Court of Appeal rejected this argument, on the ground that Parliament had not given the Commission any power to prescribe how rates of unemployment should be determined. Elsewhere in the Act, it was made clear that this was a matter left to Statistics Canada, and the regulation-making power granted by paragraph 58(u) of the Act extended no further than permitting the Commission to prescribe how the averaging of these rates as determined by Statistics Canada was to be carried out. Essentially, this amounted to no more than the power “to prescribe the period for which an average of rates of unemployment should be determined”. In short, there could be no subdelegation by the Commission of the power to prescribe the manner in which the average regional and national rates of employment should be determined, because the Commission possessed no such power in the first place. In the words of the Court of Appeal:
- Although it has been claimed by the government that the Calder decision stands for the principle that open incorporation by reference does not involve an improper subdelegation of legislative power, it is difficult to find any basis for this assertion. First, the power to decide how rates of unemployment were to be determined was expressly conferred on Statistics Canada by the Act. This being the case, there could be no question of subelegation by the Commission, since there was no power that could have been subdelegated. Second, given the Court’s finding that it was the Act itself, and not the Regulations, that was the source of Statistics Canada’s authority to decide how rates of unemployment were to be determined, there could not truly be said to have been any incorporation by reference, either open or closed, of the unemployment rates as determined by Statistics Canada. Reliance on these rates was mandated by the Act in any event. In sum, the Calder decision has absolutely nothing to do with open incorporation by reference and the applicable principles for the use of this technique.
- Another case to which the Joint Committee has been referred is Kingstonv. Ontario Racing Commission (1965), 49 D.L.R. (2d) 395 (Ont. H.C.). In a decision arising from the suspension of a horse trainer by the Ontario Racing Commission, the Court held that there was no improper subdelegation by the Commission in adopting the Rules of the Canadian Trotting Association by referentially incorporating them into its own rules. Again, it is difficult to see the relevance of this case, given that it did not concern an open incorporation by reference. The rules of the Commission simply stated that harness racing in Ontario was to be conducted “in accordance with the Rules and Regulations of The Canadian Trotting Association”. As Professor Côté observes, in the absence of an indication of a contrary intent, “there is a presumption that references which are made to an enactment from another authority are static.” (The Interpretation of Legislation in Canada (2nd edition, p.73).) The Joint Committee considers this presumption to apply in the situation in the Kingston decision. In the circumstances in that case, the Committee would therefore also have found that the particular referential incorporation involved no delegation of authority. More fundamentally, it bears pointing out that the Court in Kingston also held that the rules of the Ontario Racing Commission were administrative in nature, rather than legislative. This being the case, the principles governing the exercise of a power to legislate, including those concerning the delegation of such a power, would be inapplicable in any event.
- Finally, in Wright v. TIL Services Pty Ltd.,  S.R. (N.S.W.) 413, an Australian case, the Court upheld the validity of an incorporation by reference in regulations of an external document “as amended from time to time”. The validity of the regulation in question in Wright, however, was challenged on the ground that the content of the regulations would not be published in the Gazette in its entirety, and that it was uncertain as to whether it was intended to incorporate the relevant external standards as they existed at the time of the incorporation, or as they existed from time to time. While the Court concluded that from the subject matter of the regulations, as well as from their nature and purpose, an open incorporation by reference was intended, the question of whether such an incorporation by reference would constitute an unlawful subdelegation was not raised by the parties to the action and was not addressed by the Court at all. Thus, as is observed in Keyes’ Executive Legislation (p.284), “the Australian treatment of incorporation by reference exclusively in terms of publication requirements and uncertainty does not necessarily preclude subdelegation as an issue”.
- It should be emphasized as well that there are Canadian court decisions which have held that an ambulatory incorporation by reference did constitute an unlawful subdelegation of authority. In R. v. Board of Commissioners of Public Utilities (1964), 51 M.P.R. 4, the New Brunswick Court of Appeal unanimously held that an order of the Board of Commissioners of Public Utilities directing that water rates should be lowered to be equivalent to the rates charged in Maine should the latter be lower than the rates fixed by the Board was ultra vires. The Court observed that the order in question “purports to delegate to an administrative tribunal in a foreign country the duty of determining rates in New Brunswick which duty, by the Public Utilities Act, is conferred on the Board.” In Investissements St-Germain et al v. Cité de Rimouski (1982), 22 M.P.L.R. 121, the Quebec Superior Court ruled that a municipal by-law referentially incorporating the National Building Code as amended from time to time constituted an unlawful delegation of authority. (See also: R. v. Ciarniello (1979), 12 B.C.L.R. 394 (Prov. Ct.); Mathurin v. Lee Coffrages Dominic Ltée.,  T.T. 261, reversed  C.S. 143 (Que. S.C.)).
- Much has been read into the fact that the Canadian authors cited earlier in support of the Joint Committee’s position do not unequivocally conclude that all ambulatory incorporations by reference are invalid, even in the absence of an express enabling provision. This merely reflects, however, the view that the authority to incorporate by reference an external document “as amended from time to time” may be necessarily implied in a particular legislative scheme, even in the absence of explicit authority to this effect. In such instances, the necessary implication may have the same effect as express authority. It clearly does not follow that all such incorporations by reference are valid. The decisions in Glibbery and Meherally may both be seen to represent instances in which the courts found that the authority to make regulations embodying open incorporations by reference was necessarily implied in the scheme of the relevant enabling legislation.
- It must always be borne in mind that use of the technique of incorporation by reference in both its forms does not constitute an exercise of a distinct power. Thus, the limits of what can be incorporated by reference are clear: they are the limits that are dictated by the statutory provisions empowering the authority to make regulations. Whether the regulation-maker drafts the actual text of the regulation or decides to incorporate material by reference, it must still act within the limits of the statutory grant of regulation-making authority. Issues of subdelegation are only relevant in the context of the scope of the power conferred on a regulation-making authority in a particular instance.
- Further militating against the position taken by the government is the fact that Parliament, in a great many statutes, has expressly conferred the power to make regulations incorporating external documents “as amended from time to time”. For example, section 32(5) of the Canada Shipping Act, 2001, S.C. 2001, c. 26, provides that material may be incorporated by reference in regulations under that Act “as amended from time to time”. Accepting the position advanced by the Department would lead to the conclusion that this provision is completely unnecessary. It is an acknowledged presumption in the interpretation of legislation, however, that Parliament does not legislate in vain. As stated by Sir Francis Bennion in Statutory Interpretation (2nd edition, p.807), “if a word or phrase appears in [the] enactment, it was put there for a purpose and must not be disregarded”. Conversely, the omission from a provision of wording which appears in other similar provisions must also be taken into account in ascertaining the intent of the provision from which the wording has been omitted. In response to this, it is apparently the view of the Department of Justice that no general conclusion should be drawn from the fact that many statutes expressly provide for the incorporation by reference of external materials as amended from time to time as past practice and precedents are said to be inconsistent and inconclusive. It is also the case that a number of provisions similar to section 32(5) of the Canada Shipping Act, 2001 state that they are “for greater certainty”, a reference evidently intended to indicate that they are considered to clarify matters by expressly stating that which would be the case regardless. Many other such provisions, however, do not contain this phrase.
- Nor, despite attestations to the contrary, has the Department of Justice been consistent in its view. While frequently asserting that materials that may legitimately be incorporated by reference may always be incorporated “as amended from time to time”, in other instances a contrary view is manifest. For example, in connection with the British Columbia Vegetable Order, the National Farm Products Council recently advised the Joint Committee that a proposed levies order made under that instrument had been returned by the Department of Justice because it included an open incorporation by reference, and the Department was of the view that such an incorporation by reference would be ultra vires the relevant enabling authority. At the same time, the legal advisors to the Department of Agriculture and Agri-Food were vehemently arguing that an identically worded provision in another enabling order made under the same statute did indeed permit open incorporation by reference. It has since been acknowledged that the Department’s position on incorporation by reference has been contradictory.
- As alluded to previously, it is not unusual for individual statutes to expressly grant power to make regulations incorporating external documents “as amended from time to time”. In a number of jurisdictions, the further step has been taken of enacting a general rule governing open incorporation by reference. For example, at the federal level in Australia, the Acts Interpretation Act, 1901 as amended in 1964 expressly provides that regulations may not incorporate material other than from another Act or regulation “as in force or existing from time to time”. Similar provisions are found in the legislation of certain Australian states, while other states have legislated to expressly permit open incorporation by reference, either in all instances, or in defined circumstances.
- This approach has also been taken at the provincial level in Canada. Since 2001 the Manitoba Interpretation Act has provided that the power to make regulations “respecting a matter” may be exercised by incorporating by reference codes or standards “as amended from time to time”. In contrast, the Ontario Legislation Act, 2006 provides that a reference to a document incorporated by reference “is a reference to it as it read when the provision containing the reference was most recently enacted, made or amended.” In other words, incorporation by reference is to be static. This was apparently considered to reflect the existing state of the common law, recognizing that open incorporation by reference gives rise to the question of subdelegation, and must therefore be explicitly authorized. In 1995, a proposed new Regulations Act was tabled in Parliament that would have authorized the incorporation by reference of a document “as amended from time to time” unless another Act of Parliament expressed a contrary intention. (This too was claimed by the Department of Justice to represent a mere codification of the common law, although as has been seen, the Department’s view in this regard could be characterized as idiosyncratic.) The Bill, however, did not proceed past First Reading.
- In assessing the desirability of this sort of blanket approach, it should be kept in mind that the incorporation by reference technique, when it provides for the incorporation of material as amended from time to time, means that Parliament's delegate is in effect permitted to select another person or agency to perform a part of its law-making power in its place. When a delegate incorporates not only an existing document, but also future amendments to it, the delegate is effectively subdelegating the law-making power granted by Parliament to the person or body that will amend the material that is incorporated by reference. It could be argued that Parliament should retain control over the individual circumstances in which this authority to subdelegate is appropriately exercised. This would continue the approach whereby Parliament itself decides on a case-by-case basis, having regard to the nature of the legislation, when a regulation‑making authority can referentially incorporate documents “as amended from time to time”. On the other hand, the conclusion could be reached that there can be little objection to the enactment of a general provision permitting open incorporation by reference so long as the incorporation by reference of material “as amended from time to time” is in relation to classes of documents or material that do not contain substantive provisions and is limited to open incorporation of such things as technical standards. What needs to be recognized, however, is that this would represent a substantive change to the law. Whether at the end of the day this is considered a desirable change or not, there is clearly a need to address in some manner the uncertainty and inconsistency that characterizes the use of the technique of incorporation by reference in federal legislation at present.
- Of course, incorporation by reference also gives rise to concerns relating to accessibility to the law, in that although incorporated material becomes part of the regulations, the actual text of that material must be found elsewhere. Such concerns are heightened where material is incorporated “as amended from time to time”, in that members of the public may have difficulty ascertaining precisely what the current version is at a particular point in time. Where open incorporation by reference is to be permitted, provisions should also be put in place to require the regulation-maker to ensure that the current version of an incorporated document is readily available to the public, as are all previous versions that were previously incorporated.
- In conclusion, the Joint Committee has not been presented with any convincing argument that would lead to a conclusion that the incorporation by reference of external documents “as amended from time to time” is acceptable other than where Parliament has authorized the use of such a device, either explicitly or by necessary implication. In addition, the Joint Committee cannot but also conclude that in light of the foregoing discussion, the incorporation of external material into regulations “as amended from time to time” should, in the absence of clear authority, be seen to be illegal.
- The Joint Committee is convinced that any attempt to import constitutional law principles developed in connection with the division of legislative powers between the federal Parliament and the provincial legislatures or constitutional language requirements into the area of incorporation by reference in subordinate legislation is largely misguided. There is no doubt that open incorporation by reference is constitutionally permitted. This is also quite beside the point. As concerns the exercise of regulation-making powers, the only relevant issue is whether in each specific instance the delegate has been given the power to make open incorporations by reference.
- It has always been the view of the Joint Committee that the incorporation by reference of external material into regulations “as amended from time to time” amounts to a subdelegation of regulation-making power, in that it will be the body amending the incorporated material, and not the authority on whom the power to make the regulations has been conferred, who will determine the content of the regulations. For this reason, the incorporation by reference of external documents “as amended from time to time” is only permitted where Parliament has authorized the use of such a device, either explicitly or by necessary implication. This constraint preserves Parliament’s choices as to the delegate and the form of the regulatory measures which may be taken under the delegated authority. The question is not whether this constitutes a subdelegation, but rather whether such a subdelegation has been authorized by Parliament in each particular instance.
- In accordance with Standing Order 109 of the House of Commons, the Standing Joint Committee for the Scrutiny of Regulations requests the Government to table a comprehensive response to this Report in the House of Commons.
To permit the contrary [the incorporation by reference of provisions as amended from time to time] would be to consent to a form of implicit subdelegation. Indeed, by making a reference which would include future amendments to a text to which one refers, it would be impossible for the regulation-making authority to know what norms would result from the exercise of its regulation-making authority, and, consequently, it would be surrendering its regulatory power to a third party.
The authors go on to point out that this restriction on referential incorporation in regulations “is the main hurdle to an obviously useful drafting technique. To be perfectly confident about its legality, this technique thus requires the regulation-making authority employing it to closely examine amendments made to the provision it incorporates in order to continuously adjust the terms of its own instrument.” [Emphasis added] Similarly, Paul Salembier (Regulatory Law and Practice in Canada, p.258) notes:
Where a dynamic incorporation by reference is used, however, the regulation-making authority has no idea what changes the authors of the incorporated document might decide to bring to it, and it therefore subdelegates the future evolution of the rule to the author of the incorporated document.
Pearce and Argument (Delegated Legislation in Australia, 2nd edition, pp. 279-280) put the issue in the following terms:
The inclusion in delegated legislation of requirements stipulated by another organization means that the other organization is, in effect, stating the law on the topic. This may not be so if the incorporation is of a document as in force at a particular time. But if the incorporation is of the document as in force from time to time, this enables the organization writing the document to determine the content of the delegated legislation.
One cannot assume that cases recognizing the constitutional authority of parliamentary bodies to legislate by reference to legislation from other jurisdictions define the scope for ambulatory incorporation by reference in executive legislation. These cases balance the constitutional divisions of legislative authority against the exigencies involved in regulating matters that cut across these divisions. They respond to arguments about limits on the ability of parliamentary bodies to delegate authority to other parliamentary institutions. They cannot apply in precisely the same way to executive delegates....
In the context of subordinate legislation, the notion of subdelegation is concerned with the relationship between the delegate possessing regulation-making powers and the authority that has delegated these powers. A delegate can only possess those powers conferred on it by the delegator. At the same time, there can be no doubt that a delegator may confer on its delegate the power to in turn subdelegate the power to someone else. The question to be answered in each individual instance is whether there has in fact been a conferral of such a power. Issues of subdelegation are merely aspects of the broad question of whether a delegate is acting within the scope of the delegate's authority. The question is not whether the incorporation of external material “as amended from time to time” is constitutionally permissible, but rather whether the power to make such an incorporation by reference has been conferred on a delegate in a particular instance.
There is not here any delegation by Parliament to a Province of legislative power vested in the Dominion alone by the B.N.A. Act and of a kind not vested by the Act in a Province. ... The power here sought to be delegated was not of such a type but was in relation to a matter in which the Province was independently competent. Parliament could validly have spelled out in its own regulations the equivalent of relevant sections of the Highway Traffic Act as they existed from time to time but it was more convenient to include them, as has been done, by reference to contemporary legislation in the Province. There should be no objection to delegation of this type made for a valid federal purpose to save repetition in its own regulations of valid Provincial legislation.
the central issue becomes whether or not there is a bona fide reason for incorporation without translation. To make this determination, the origin of the document and the purpose of its incorporation must be examined.
is a valid exercise of Parliament’s regulation-making power and thus is intra vires. ... It is not a transfer of jurisdiction as urged by the applicants. It is the incorporation into federal legislation of the legislation of the only body having authority to determine what persons have the qualifications to be employees of a province, namely the legislature of the province.
Two points should be noted in connection with these comments. First, the Court of Appeal dealt with the question as one of whether the incorporation represented a constitutionally prohibited transfer of jurisdiction. (In other words, as one of inter-delegation, as opposed to subdelegation.) Secondly, in applying the decision in Glibbery, the Court perpetuated the confusion between Parliament and its delegate.
in the exercise of its regulation-making power, the Unemployment Insurance Commission could scarcely do otherwise than adopt by reference the various provincial definitions as to what such employment is. In my opinion, the Crown and legislature in each province in the exercise of their prerogative and legislative powers are not only the appropriate but the only bodies who can define and determine what shall, for all purposes, be deemed to be employment by Her Majesty in right of that province.
Thus, the power to make regulations containing open incorporations by reference was necessarily implied in the enabling statute. (Urie, J., with whom Mr. Justice Hugesson was concurring, seems to have taken it as given that such a power had been conferred on the Unemployment Insurance Commission by Parliament in this instance.)
- It is constitutionally permissible for the terms of provincial statutes as they exist from time to time to be referentially incorporated in federal legislation, and therefore the regulation in question was not ultra vires on constitutional grounds;
- In the particular instance in question, it is only the provinces who in fact could determine the question of who is a provincial crown employee, and therefore Parliament must be considered to have impliedly authorized the federal delegate to incorporate the provinces' decisions on this question.
The decision cannot, however, be taken as standing for the proposition that in every case a delegate may use open referential incorporation.
I cannot conclude that this transfer has been made by Parliament. It is the Commission which by s. 4 of the Act is given the initiating power to make regulations (subject only to the approval of the Governor in Council) for including in insurable employment otherwise exempted provincial employees, and thus in its discretion to qualify and specify what needs to be qualified and specified, but there is not a word in the Act which explicitly confers on the Commission the power to transfer its jurisdiction further.
This expressly recognizes that it was the question of what authority had been given to the Commission and to what extent the Commission was itself expected to perform the task of determining who is a member of the various provincial civil services that had to be determined. MacGuigan, J. also pointed out that the value of the Glibbery decision as a precedent is diminished by the fact that the question of subdelegation was not argued before the Court and by the confusion exhibited in that judgment as to the identity of the regulation-making authority, there being repeated references to Parliament’s power to make regulations incorporating by reference provincial laws as amended from time to time. Parliament of course does not make regulations, but rather delegates by statute the power to do so to others. As observed earlier, subject to constitutional constraints, it is obvious that in its supremacy Parliament could pass any law it pleases. The same is not true of a body making delegated legislation.
In so far as Parliament has made rights depend on rates of unemployment, it has indicated an intention that reliance may be placed on the rates of unemployment determined by Statistics Canada. The determination of those rates is neither a power to make regulations nor a power to adjudicate under the Unemployment Insurance Act, so that it cannot be said to involve, when carried out by Statistics Canada, an invalid delegation of either kind of power.
A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 3, Second Session, Thirty-ninth Parliament) is tabled in the House of Commons.