TORONTO – The Canadian Constitution Foundation is pleased to announce that Ontario’s highest court has clarified that it is not open to cabinet to thwart the will of the legislature by deciding that a law that is to come into force “on a day named by the lieutenant governor” will never come into force.
The Ontario Court of Appeal provided this important clarification in a decision released Thursday in Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board.
The Court upheld the Divisional Court’s finding that it was reasonable for the Minister of Training, Colleges and Universities to decide to not to proclaim of a provision of an act passed by the legislature that would have granted university-status to Canada Christian College into force at the time when the minister made that decision. However, the court said the minister cannot decide that the provision will never come into force.
In 2020, the legislature passed a law that would have allowed Canada Christian College to grant bachelor of arts and sciences degrees starting on a day to be named by lieutenant governor, which in practice means the minister. The passage of the law prompted an outcry due to controversial comments made by the college’s president Charles McVety about Islam and gay people, and due to McVety’s ties to Premier Doug Ford.
In 2021, the Minister of Training, Colleges and Universities received a recommendation from the Post-Secondary Education Quality Assessment Board that Canada Christian College was not ready for university status. The minister accepted that finding and decided not to move forward with proclaiming the status, saving the government from potential further embarrassment.
Canada Christian College sought judicial review, arguing that the minister’s decision was not reasonable and that the minister had undermined the will of the legislature by not granting the university status.
Counsel for the CCF intervened to assist the court in clarifying that a commencement provision like the one at issue grants the executive only the limited power to determine when to bring legislation into force, not whether to bring it into force.
In his decision, Justice Lorne Sossin agreed with the CCF that the minister has discretion to decide when to proclaim a provision as law but “the power of a minister to defer proclamation is in no way unlimited.”
“According to the CCF, the commencement provision like the one at issue in this appeal only grants the executive the limited power to determine when to bring legislation into force, not whether to bring it into force at all,” Justice Sossin wrote.
“[T]here should be no ambiguity as to the limits on the Minister’s discretion,” Justice Sossin added. “Put simply, it would not be open to a Minister to decide that an enacted statute will never be proclaimed.”
Justice Sossin also explained that the executive has a “continuing obligation to determine whether to exercise its statutory discretion under a commencement provision,” and cited caselaw provided by the CCF that establishes that it is for “Parliament, not the executive, to repeal legislation.”
“We are pleased that the Court of Appeal has accepted our arguments that the executive cannot override the will of the legislature by choosing to never proclaim a law into force,” said CCF Litigation Director Christine Van Geyn. “The decision is a win for parliamentary supremacy and responsible government.”
The Canadian Constitution Foundation was represented in the case by Sujit Choudhry and Jesse Hartery.