At the time this article was published Donald
L. Revell was Legislative Counsel at the Ontario Legislative Assembly. This
article was first delivered at the Annual Meeting of the Association of
Parliamentary Counsel held in August 1985 at Halifax.
Bill C19, An Act respecting the
reorganization of Bell Canada, was given second reading on April 2, 1985.
During the debate, the member for Humboldt-Lake Centre, Mr. Althouse, asked for
a Speaker's ruling on whether the bill was properly before the House as a
public bill or if it should be classed as a private bill.1
Speaker Bosley decided that the bill could
proceed as a public bill and in my opinion this was the correct decision.
However, the reasoning in the decision raises an interesting question as to
whether certain matters may only be dealt with as private bills.
The decision appears to proceed on the
assumption that the Speaker was under an onus to rule that unless the bill
affected the public interest the bill was a private bill and that therefore it
was not proceeding properly through the House as a public bill. In reaching a
decision as to whether the bill was properly before the House, the Speaker,
because of the assumption, had to decide that certain clauses in it affected
the public interest. His conclusive argument is that because clause 3 provided
that, "in the event of any inconsistency between the provisions of this
Act and any other Act of Parliament or anything issued, made or established
under that other Act, the provisions of this Act prevail", the bill is a
public bill "since a private Act, being an exception to the general law,
could not prevail over any other Act of Parliament". It is submitted that
a private Act, as a special Act of Parliament, may prevail over a public Act on
the same subject.2 If this is the case, then the conclusive argument fails and,
if each of the other arguments fails in turn, then, following the reasoning of
the decision, the bill would not have been properly before the House.
The decision raises the possibility that
under the Standing Orders in Ottawa there may be a hiatus in the powers of
Parliament to legislate. The government's power to introduce legislation of
wide or general application is unaffected by the decision as is the ability of
an applicant for private legislation to obtain legislation applicable only to
the applicant. But what if the executive or a private member of Parliament
wishes, for whatever reasons, to affect the powers or duties of a particular
person and the person does not wish to apply for private legislation? In
Ottawa, it would appear that unless a bill has some public policy content, the
bill may be ruled out of order.
It is submitted that if such a hiatus
exists, it is unique to Ottawa. At Westminster there can be no hiatus because
the hybrid bills procedure allows bills that would otherwise be private bills
to be brought forward without regard to the normal private bill rules.
Likewise, the provinces seem to have taken a position that eliminates the
possibility of a hiatus. For example, the Ontario Legislature has frequently
passed, as public legislation, legislation that could also have been dealt with
by way of a private legislation3 and in Newfoundland, despite the existence of
a private bills procedure in the Standing Orders, it would appear that no
private bills have been introduced for many years. Instead, bills in the nature
of private bills are routinely introduced by members of the executive.
In my opinion, the correct statement of the
rule related to the introduction of bills in Canada is that any member of the
legislature may introduce, as a public bill, a bill on any subject so long as
it is not a money bill. A money bill, of course, may be introduced only by a
minister of the Crown. This right to introduce a bill includes the right to
introduce, as a public bill, a bill that could be brought forward as a private
bill. This statement of the rule reflects the fact that, unlike England, no
Canadian jurisdiction has a hybrid bills procedure and because of this, unless
a public bill may address any subject, there would be no mechanism whereby a
matter that requires legislation in the nature of a private act could be dealt
with except on the application of an interested party.
It is submitted that this statement of the
rule is both historically and logically correct. It allows the executive and
private members the freedom to act when they feel action is required without
inserting in their bills provisions that artificially establish that the public
interest is affected. The minister or private member in introducing such
legislation must accept the responsibility for his or her actions and this is
consistent with our theories of responsible government. Furthermore, the rule
eliminates a potentially embarrassing situation whereby the Speaker must decide
whether a matter of policy as seen by the executive or a private member is in
fact public policy in situations that, absent an application for private
legislation, would prevent the enactment of legislation. Finally, it recognizes
the supremacy of Parliament to pass laws on any matter at any time without
being fettered by its own rules.
1 See Debates, April 2, 1985, pp.
36323644; April 15, 1985, pp. 36993700.
2 See Craies on Statue Law, 7th ed.,
3 Public Acts amending private Acts include
the Statute Law, Amendment Act, 1910, c.26, s.23, Statute Law Amendment Act,
1907, c.23, s.46 and tile Statute Law Amendment Act, 1902, c.12, s.30. Public
Acts repealing private Acts include the Private Acts Repeal Act, 1984, c. 73;
and the Health Protection and Protection Act, 1983, c.10, s.111(3). Public Acts
that could have proceeded as private Acts include the Rideau Centre Mortgage
Financing Act, 1982, c.35. In addition, many of the unconsolidated and
un-repealed public Acts listed in Schedule C to the Revised Statutes of Ontario,
1980, could have proceeded as private bills.