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ONTAR I O 


ROYAL  COMMISSION 
INQUIRY  INTO  CIVIL  RIGHTS 


\^  • 


PART  V  )&rJ 


REPORT  NUMBER  THREE 

/ 


1971 


COMMISSIONER 
Honourable  James  Chalmers  McRuer,  S.M.,  LL.D.,  D.C.L. 

COUNSEL  TO  THE  COMMISSIONER 

John  W.  Morden,  LL.B. 

Stephen  Borins,  LL.B. 

CHIEF  RESEARCH  ASSISTANT 
Carol  M.  Creighton,  LL.B. 


ROYAL  COMMISSION 
INQUIRY  INTO  CIVIL  RIGHTS 


VOLUME  5 


Printed  and  Published  by 

WILLIAM  KINMOND 

The  Queen's  Printer  and  Publisher 


To  His  Honour, 

The  Lieutenant-Governor  of  the 

Province  of  Ontario. 

May  it  please  Your  Honour: 

Having  been  appointed  by  Royal  Commission  to  perform 
the  duties  set  out  in  the  Commission  and  the  Order  in  Council 
authorizing  it,  I  submitted  my  first  Report  on  February  7, 
1968  and  my  second  Report  on  September  15,  1969.  I  now 
have  the  honour  to  submit  Report  Number  3,  which  will  be 
my  final  Report. 


Commissioner 


February  22,  1971 


[Seal] 

PROVINCE  OF  ONTARIO 


ELIZABETH  THE  SECOND,  by  the  Grace  of  God  of  the 

United  Kingdom,  Canada 
and  Her  other  Reahns  and 
Territories  Queen,  Head  of 
the  Commonwealth,  Defen- 
der of  the  Faith. 

TO  THE  HONOURABLE  JAMES  CHALMERS  McRUER, 

of  Our  City  of  Toronto,  in 
Our  Province  of  Ontario, 
Chief  Justice  of  Our  High 
Court  of  Ontario,  and  One 
of  Our  Counsel  learned  in 
the  Law, 

GREETING: 

WHEREAS  in  and  by  Chapter  323  of  The  Revised  Stat- 
utes of  Ontario,  1960,  entitled  "The  Public  Inquiries  Act", 
it  is  enacted  that  whenever  Our  Lieutenant  Governor  in 
Council  deems  it  expedient  to  cause  inquiry  to  be  made  con- 
cerning any  matter  connected  with  or  affecting  the  good  gov- 
ernment of  Ontario  or  the  conduct  of  any  part  of  the  public 
business  thereof  or  of  the  administration  of  justice  therein 
and  such  inquiry  is  not  regulated  by  any  special  law,  he  may, 
by  Commission,  appoint  one  or  more  persons  to  conduct  such 
inquiry  and  may  confer  the  power  of  summoning  any  person 
and  requiring  him  to  give  evidence  on  oath  and  to  produce 
such  documents  and  things  as  the  commissioner  or  commis- 
sioners deem  requisite  for  the  full  investigation  of  the  matters 
into  which  he  or  they  are  appointed  to  examine; 

vii 


viii         The  Commission 

AND  WHEREAS  Our  Lieutenant  Governor  in  Council 
of  Our  Province  of  Ontario  deems  it  expedient  to  cause 
inquiry  to  be  made  concerning  the  matters  hereinafter  men- 
tioned: 

NOW  KNOW  YE  that  WE,  having  and  reposing  full 
trust  and  confidence  in  you  the  said  James  Chalmers  McRuer 
DO  HEREBY  APPOINT  you  to  be  Our  Commissioner, 
under  the  designation  "Inquiry  into  Civil  Rights", 

1.  To  examine,  study  and  inquire  into  the  laws  of  Ontario 
including  the  statutes  and  regulations  passed  thereunder 
affecting  the  personal  freedoms,  rights  and  liberties  of 
Canadian  citizens  and  others  resident  in  Ontario  for  the 
purpose  of  determining  how  far  there  may  be  unjustified 
encroachment  on  those  freedoms,  rights  and  liberties  by 
the  Legislature,  the  Government,  its  officers  and  serv- 
ants, divisions  of  Provincial  Public  Service,  boards,  com- 
missions, committees,  other  emanations  of  sfovernment  or 
bodies  exercising  authority  under  or  administering  the 
laws  in  Ontario. 

2.  After  due  study  and  consideration  to  recommend  such 
changes  in  the  laws,  procedures  and  processes  as  in  the 
opinion  of  the  commission  are  necessary  and  desirable  to 
safeguard  the  fundamental  and  basic  rights,  liberties  and 
freedoms  of  the  individual  from  infringement  by  the 
State  or  any  other  body. 

AND  WE  DO  HEREBY  CONFER  on  you.  Our  said 
Commissioner,  the  power  to  summon  any  person  and  require 
him  to  give  evidence  on  oath  and  to  produce  such  documents 
and  things  as  you  Otir  said  Commissioner  deem  requisite  for 
the  full  investigation  of  the  matters  into  which  you  are 
appointed  to  examine; 

AND  WE  DO  HEREBY  FURTHER  ORDER  that  all 
our  departments,  boards,  agencies  and  committees  shall  assist 
you.  Our  said  Commissioner,  to  the  fullest  extent,  and  that  in 
order  to  carry  out  your  duties  and  functions,  you  shall  have 
the  authority  to  engage  such  counsel,  research  and  other  staff 
and  technical  advisers  as  you  deem  proper; 

TO  HAVE,  HOLD  AND  ENJOY  the  said  Office  and 
authority  of  Commissioner  for  and  during  the  pleasure  of  Our 
Lieutenant  Governor  in  Council  for  Our  Province  of  Ontario. 


The  Commission         ix 

IN  TESTIMONY  WHEREOF  We  have  caused  these 
Our  Letters  to  be  made  Patent,  and  the  Great  Seal  of  Our 
Province  of  Ontario  to  be  hereunto  affixed. 

WITNESS:  THE  HONOURABLE  WILLIAM  EARL 
ROWE,  A  Member  of  Our  Privy  Council  for 
Canada,  Doctor  of  Laws,  LIEUTENANT 
GOVERNOR  OF  OUR  PROVINCE  OF 
ONTARIO 

at  our  City  of  Toronto  in  Our  said  Province,  this  twenty-first 
day  of  May  in  the  year  of  Our  Lord  one  thousand  nine  hun- 
dred and  sixty-four  and  in  the  thirteenth  year  of  Our  Reign. 


BY  COMMAND 


(Signed)  John  Yaremko 

PROVINCIAL  SECRETARY  AND 
MINISTER  OF  CITIZENSHIP 


ORDER-IN-COUNCIL 

Copy  of  an  Order-in-Council  approved  by  His  Honour 
the  Lieutenant  Governor,  dated  the  21st  day  of  May,  A.D. 
1964. 

The  Committee  of  Council  have  had  under  consideration 
the  report  of  the  Honourable  the  Prime  Minister,  dated  May 
20,  1964,  wherein  he  states  that, 

Recognizing  that  the  evolution,  development  and  growth 
of  the  traditional  parliamentary  powers  of  the  Legislature,  and 
of  the  administrative  authority  and  processes  of  Government, 
give  rise  to  continuing  readjustments  in  the  internal  structure 
of  society  and  the  need  to  preserve  and  protect  basic  principles 
relating  to  the  civil  liberties,  human  rights,  fundamental  free- 
doms and  privileges  of  the  individual  inherent  in  citizenship. 

The  Honourable  the  Prime  Minister  recommends  that 
pursuant  to  the  provisions  of  The  Public  Inquiries  Act, 
R.S.O.  1960,  Chapter  323,  and  effective  May  1,  1964,  a  com- 
mission be  issued  appointing 

The  Honourable  James  Chalmers  McRuer, 
Chief  Justice  of  the  High  Court  for  Ontario, 

a  commissioner,  under  the  designation  "Inquiry  into  Civil 
Rights", 

1.  To  examine,  study  and  inquire  into  the  laws  of  Ontario 
including  the  statutes  and  regulations  passed  thereunder 
affecting  the  personal  freedoms,  rights  and  liberties  of 
Canadian  citizens  and  others  resident  in  Ontario  for  the 
purpose  of  determining  how  far  there  may  be  unjustified 
encroachment  on  those  freedoms,  rights  and  liberties  by 
the  Legislature,  the  Government,  its  officers  and  servants, 
divisions  of  Provincial  Public  Service,  boards,  commis- 
sions, committees,  other  emanations  of  government  or 
bodies  exercising  authority  under  or  administering  the 
laws  in  Ontario. 

2.  After  due  study  and  consideration  to  recommend  such 
changes  in  the  laws,  procedures  and  processes  as  in  the 
opinion  of  the  commission  are  necessary  and  desirable  to 

xi 


xii         Order-in-Council 

safeguard  the  fundamental  and  basic  rights,  liberties  and 
freedoms  of  the  individual  from  infringement  by  the 
State  or  any  other  body. 

The  Honourable  the  Prime  Minister  further  recom- 
mends that  pursuant  to  the  said  Act  the  Commissioner  shall 
have  the  power  of  summoning  any  person  and  requiring  him 
to  give  evidence  on  oath  and  to  produce  such  documents  and 
things  as  the  Commissioner  deems  requisite  for  the  full 
investigation  of  the  matters  into  which  he  is  appointed  to 
examine. 

And  the  Honourable  the  Prime  Minister  further  recom- 
mends that  all  Government  departments,  boards,  commissions, 
agencies  and  committees  shall  assist  the  Commissioner  to  the 
fullest  extent  in  order  that  he  may  carry  out  his  duties  and 
functions  and  that  he  shall  have  authority  to  engage  such 
counsel,  research  and  other  staff  and  technical  advisers  as  he 
deems  proper. 

The  Committee  of  Council  concur  in  the  recommenda- 
tions of  the  Honourable  the  Prime  Minister  and  advise  that 
the  same  be  acted  on. 

Certified, 

(Signed) 

J.  J.  Young 

Clerk,  Executive  Council 


ACKNOWLEDGMENTS 

In  making  the  final  Report  of  this  Commission  your 
Commissioner  wishes  to  acknowledge,  as  has  been  previously 
done,  the  dedicated  public  service  rendered  by  all  those  who 
have  collaborated  and  assisted  in  the  preparation  of  the  three 
Reports  of  this  Commission. 

To  those  whose  names  are  set  out  in  the  acknowledg- 
ments to  Reports  Number  1  and  Number  2,  your  Commis- 
sioner wishes  to  add  the  names  of  Professor  G.  J.  Brandt,  B.A., 
LL.B.,  M.A.,  of  the  Faculty  of  Law  of  the  University  of 
Western  Ontario;  Professor  Horace  Krever,  B.A.,  LL.B.,  of 
the  Faculty  of  Law  of  the  University  of  Western  Ontario; 
Professor  Colin  H.  McNairn,  B.A.,  LL.B.,  LL.M.,  of  the 
Faculty  of  Law  of  the  University  of  Toronto  and  Professor 
J.  B.  Dunlop,  B.A.,  LL.B.,  LL.M.,  of  the  Faculty  of  Law  of 
the  University  of  Toronto.  To  these  a  debt  of  gratitude  is 
owed  for  contributions  that  have  been  made  to  the  task  of 
preparing  this  Report. 

The  work  of  the  Commission  has  been  greatly  facilitated 
by  those  engaged  in  the  public  service  with  whom  your  Com- 
missioner has  had  occasion  to  discuss  matters  related  to  the 
task  given  to  him  under  the  Commission. 

We  are  particularly  appreciative  of  the  co-operation  we 
received  from  the  Chairmen,  members  and  officers  of  the 
several  tribunals  which  are  considered  and  dealt  with  in  this 
Report.  We  found  them  all  most  anxious  to  assist  the  Com- 
mission to  accomplish  the  objects  set  out  in  the  Terms  of 
Reference.   To  all  of  them  we  extend  our  grateful  thanks. 

In  bringing  his  task  to  a  conclusion  your  Commissioner 
wishes  to  express  again  his  warm  appreciation  of  the  assistance 
he  has  had  throughout  from  the  Commission  Counsel,  John 
W.  Morden  and  Stephen  Borins  and  the  Chief  Research  Assist- 
ant, Carol  M.  Creighton.   All  three  have  rendered  a  devoted 

xiii 


xiv        Acknowledgments 

public  service  in  the  discharge  of  their  respective  duties.  To 
Miss  Katherine  Finnegan,  who  has  performed  the  duties  of 
secretary  to  the  Commission  and  Mrs.  Pauline  Wheeler,  who 
has  been  in  charge  of  the  preparation  of  the  manuscript  for 
this  Report,  we  express  our  gratitude. 


Table  of  Contents 


VOLUME  5 

PART  V  PAGE 

Introduction 1737 

SECTION  1 

THE  APPLICATION  OF  GENERAL  PRINCIPLES 

TO  SPECIFIC  STATUTORY  TRIBUNALS  1739 

Introduction 1741 

Chapter  109 

THE  AIR  POLLUTION  CONTROL  ACT,  1967  1743 

Introduction 1 743 

Powers  of  Decision 1 743 

Subordinate  Legislative  Power 1 745 

Recommendations  1 746 

Chapter  110 

THE  ARCHAEOLOGICAL  AND  HISTORIC 

SITES  PROTECTION  ACT  1747 

Recommendations  1 747 

Chapter  111 

THE  ATHLETICS  COMMISSIONER 1748 

Introduction 1 748 

Powers  of  Decision  1748 

Subordinate  Legislative  Powers  1752 

Licensing  Powers 1753 

Powers  of  Investigation 1 754 

Recommendations  1755 

XV 


xvi         Contents 

PAGE 

Chapter  112 

THE  FARM  PRODUCTS  MARKETING  BOARD  1756 

Introduction 1756 

Methods  of  Control 1757 

The  Board  1758 

The  Local  Boards  1759 

Scope  of  Powers  of  the  Board  and  the  Local  Boards: 

Definitions  1760 

The  Plan   1764 

Existing  Plans   1766 

Subordinate  Legislative  Powers  1769 

Sub-delegated  Subordinate  Legislation 1771 

Licensing  Powers 1 774 

Limitation  of  Number  of  Licences  1776 

Licensing  Procedure  1778 

Licence  Fees 1779 

Certificates  of  Appointment 1780 

Appeals  1782 

A  Further  Right  of  Appeal  to  the  Court 1785 

Judicial  Review 1 786 

Powers    of    Investigation:    Scope    and    Conditions 

Precedent  1787 

Right  of  Entry  and  Inspection  1789 

Penalties  1790 

Onus  of  Proof  1794 

Substitution  of  One  Offence  for  Another 1795 

Confiscation  1795 

Protection  of  Members  and  Employees  of  the  Board 

and  Local  Boards 1797 

Recommendations  1 798 

Chapter  113 

THE  FIRE  MARSHAL   1803 

Introduction 1803 

Judicial  Powers  1803 

Appeals 1805 

Investigations 1 805 

Committal  for  Contempt  1806 


Volume  5  xvii 

PAGE 

Witness  Fees 1806 

Recommendations  1807 

Chapter  114 

THE  HYDRO-ELECTRIC  POWER  COMMISSION 

OF  ONTARIO  1809 

Introduction 1809 

PoAvei s  of  Expropriation  and  Entry 1 809 

Section  24  of  the  Power  Commission  Act 1812 

Section  33  of  the  Power  Commission  Act  1816 

The  Niagara  Development  Act,  1951  1817 

The  St.  Lawrence  Development  Act,  1952  (No.  2)  1818 

Recovery  of  Cost  of  Construction  1819 

Disposition  of  Fines  1822 

Actions  Against  the  Commission  or  Members 

Thereof    1822 

Complaints  as  to  Rates  Charged  1823 

Control  of  Energy  1824 

Recommendations  1825 

Chapter  115 

THE  LIQUOR  CONTROL  BOARD  OF  ONTARIO  1 828 

Introduction 1828 

Powers  of  the  Board  1829 

Subordinate  Legislative  Powers    1830 

Licensing   1831 

Interdiction   1834 

Power  of  Expropriation  1836 

Offences   1837 

Power  to  Arrest  Without  a  Warrant 1837 

Power  to  Search  the  Person  1838 

Fines  1839 

Judicial  Review 1839 

Appeals 1840 

Appeal  by  Way  of  Stated  Case  1840 

Appeals  from  Conviction  1840 

Separation  of  Powers 1 842 

Recommendations  1843 


xviii         Contents 

PAGE 

Chapter  116 

THE  LIQUOR  LICENCE  BOARD  OF  ONTARIO  1846 

Introduction 1846 

Organization  of  the  Board  1847 

Licensing   1 850 

Cancellation  and  Suspension  of  Licences  1851 

Judicial  Review 1 852 

Appeals 1853 

Appeal  by  Stated  Case  1853 

Right  of  Appeal  to  County  or  District  Court  Judge  1 853 

Powers  of  Investigation :  General 1855 

Powers  of  Seizure 1855 

Powers  of  Entry 1856 

Payment  of  Witness  Fees  1857 

Compensation    1858 

Offences   1858 

Power  of  Arrest  Without  a  Warrant 1 860 

Restrictions  on  Use  of  Information  Obtained  1860 

Recommendations  1 860 

Chapter  117 

THE  MILK  COMMISSION  OF  ONTARIO  1863 

Introduction 1 863 

The  Milk  Commission  of  Ontario  and  the  Market- 
ing Boards   1 865 

The  Plan   1866 

Existing  Plans   1 867 

Milk   1867 

Cheese 1 868 

Cream  1 869 

Scope  of  the  Powers  of  the  Commission  and  Boards- 
Definitions  1870 

Subordinate  Legislative  Power  and  the  Sub-Delega- 
tion of  Subordinate  Legislative  Power 1873 

Licensing  Powers 1878 

Quotas    1881 

Appeals 1885 


Volume  3  xvix 

PAGE 

Investigations  1887 

Production  of  Books  and  Records  1887 

Penalties  1889 

Restraining  Orders  1 890 

Proof  of  Inter-Provincial  or  Export  Trade 1891 

Protection  of  Members  of  the  Milk  Commission  and 

of  Marketing  Boards  1892 

Recommendations  1893 

Chapter  118 

THE  MINING  COMMISSIONER 1898 

Introduction 1898 

The  Appointment  of  the  Commissioner 1 898 

Rules 1899 

Forfeiture  1900 

Jurisdiction  of  the  Commissioner  1901 

Judicial  Review 1 902 

Powers  of  Investigation 1902 

Reasons 1903 

Filing  Orders  with  the  Supreme  Court 1903 

Appeals  to  the  Commissioner  1904 

Expert  Assistance 1 905 

Evidence  Other  Than  that  Adduced  by  the  Parties  1905 

Costs  1906 

Form  of  the  Commissioner's  Order 1 907 

Appeals  to  the  Court  of  Appeal 1 907 

Hours  for  Business 1 909 

Recommendations  1910 

Chapter  119 

THE  ONTARIO  ENERGY  BOARD  1913 

Introduction 1913 

Composition  of  the  Board  1915 

Powers  of  Decision 1916 

Rate-making 1919 

Powers  of  Investigation 1921 

Scope  of  the  Investigation  1921 

Powers  of  Compulsion  1922 


XX         Contents 

PAGE 

Procedure  1923 

Reasons    1925 

Rules    1925 

Privilege  1926 

Enforcement  of  Board's  Orders  1926 

Penalties  1927 

Subordinate  Legislative  Power  1928 

Expropriation    1 929 

Rights  of  Appeal  1931 

Rehearing 1931 

Appeal  by  Way  of  Stated  Case  1932 

Appeal  to  the  Court  of  Appeal 1932 

Appeal  to  the  Lieutenant  Governor  in  Council  ....  1933 
Powers  Exercised  Under  the  Municipal  Franchises 

Act   1936 

Powers  Exercised  Under  the  Public  Utilities  Act  1937 

Powers  Exercised  Under  the  Assessment  Act 1938 

Summary  of  Appeal  Procedures  1938 

Licensing   1 94 1 

Conclusion  1 945 

Recommendations  1 946 

Appendix  to  Chapter  119 1950 

Chapter  120 

THE  ONTARIO  FOOD  TERMINAL  BOARD 1952 

Introduction 1 952 

The  Powers  of  the  Board 1952 

Recommendations  1 956 

Chapter  121 

THE    ONTARIO    HIGHWAY   TRANSPORT 

BOARD  1958 

Introduction 1 958 

Hearings  1 959 

Investigatory  Powers  1 960 

Enforcement  of  the  Board's  Orders 1 960 

Reasons  1961 


Volume^  xxi 

PAGE 

Appeals 1961 

Stated  Case 1961 

Appeal  to  the  Court  of  Appeal 1961 

Appeal  to  the  Lieutenant  Governor  in  Council  ....  1962 

ProceedinQ:s  Aoainst  the  Board 1 963 

Recommendations  1963 

Chapter  122 
THE    ONTARIO    HOSPITAL    SERVICES    COM- 
MISSION      1965 

Introduction  1 965 

Subordinate  Legislative  Powers 1966 

Defining  Words  Used  in  the  Act  1 966 

Discipline  of  Patients  1966 

Subrosration   1 966 

Disclosure  of  Information 1 969 

Protection  for  Members  of  the  Commission  and  its 

Employees    1971 

Conflict  with  the  Provisions  of  any  other  Act 1 972 

Disposition  of  Fines  1973 

Recommendations  1973 

Chapter  123 
THE    ONTARIO    HUMAN    RIGHTS    COMMIS- 
SION      1975 

Introduction 1975 

The  Commission  1977 

Boards  of  Inquiry   1978 

Enforcement    1 979 

Powers  of  Compulsion  1983 

Recommendations  1 984 

Chapter  124 

THE  ONTARIO  LABOUR  RELATIONS  BOARD  1986 

Introduction 1 986 

Structure  of  the  Board  1988 

Powers  of  Decision   1 990 

Powers  of  Investigation 1 995 

Powers  of  Delegation 1996 


xxii         Contents 

PAGE 

Rules    2000 

Practice  of  the  Board 2001 

Adjournments   2004 

Practice  Notes   2004 

Consultation  with  the  Full  Board  2004 

Reasons    2006 

Judicial  Review 2006 

Privilege  2007 

Recommendations  2011 

Chapter  125 

THE  ONTARIO  MUNICIPAL  BOARD  2013 

Introduction 2013 

Constitution  of  the  Board 2016 

Liability  of  Members  of  the  Board  2018 

General  Jurisdiction  and  Powers 2018 

General  Municipal  Jurisdiction  2027 

Jurisdiction  over  Railways  and  Utilities 2028 

Practice  and  Procedure 2029 

Rules  of  Procedure  2032 

Appeals 2035 

Appeal  by  Way  of  Stated  Case  2035 

Appeal  to  the  Court  of  Appeal 2036 

Appeal  to  the  Lieutenant  Governor  in  Council  ....  2039 

Judicial  Review 2041 

Recommendations  204 1 

Appendix  to  Chapter  125 2045 

Chapter  126 

THE  ONTARIO  SECURITIES  COMMISSION  2068 

Introduction  2068 

Composition  of  the  Commission  2069 

Procedural  Provisions  of  General  Application 2070 

Hearings  2070 

Written  Notice  of  Hearing 2071 

Powers  of  the  Presiding  Officer  2071 

Reasons  for  Decision  2072 

Notice  of  Decision 2073 

Right  to  Counsel 2073 


Volume  5  xxiii 

PAGE 

Evidence 2074 

Transcript  of  Evidence  2074 

Appeals 2075 

Powers  of  the  Commission  2077 

Licensing   2077 

Granting  and  Renewing  Registrations  2078 

Suspension  or  Cancellation  of  Registration  2079 

Powers  of  Investigation  2080 

Power  to  Order  Investigations  2080 

The  Powers  of  the  Investigator 2081 

Reporting  Results  of  Investigation  2082 

Powers  to  Make  Interim  Orders  2083 

Miscellaneous  Powers  of  Decision  2085 

Primary  Distribution   2085 

Rules  Concerning  Primary  Distribution 2086 

Disclosure  of  Corporate  Information  2087 

Insider  Trading 2088 

Stock  Exchanges  2088 

Miscellaneous  Provisions   2088 

Rule-making  Power   2088 

Immunity  from  Action 2088 

Offences   2091 

Power  to  Exempt  from  Provisions  of  the  Act 2092 

Recommendations  2094 

Chapter  127 

THE  ONTARIO  TELEPHONE  SERVICE  COM- 
MISSION      2098 

Introduction 2098 

Inquiry  Procedure 2098 

Appeals 2100 

Appeal  by  Way  of  Stated  Case 2100 

Appeal  upon  Questions  of  Law  or  Jurisdiction  ...  2101 

Appeal  to  the  Lieutenant  Governor  in  Council  2101 

Subordinate  Legislative  Power 2102 

Penalties  2103 

Recommendations  2103 


xxiv         Contents 

PAGE 

Chapter  128 

THE    ONTARIO    WATER    RESOURCES    COM- 
MISSION      2105 

Introduction 2105 

General  Powers  of  the  Commission 2106 

Business  Functions  2107 

Right  to  Acquire  Land 2108 

Right  to  Use  Water  2109 

The  Supervision  of  All  Waters:  Conflicts  with  other 

Acts 2110 

The  Permission  to  Pollute 2112 

The  Definition  of  Sources  of  Public  Water  Supply  2115 

Control  of  Water  Supply  2115 

Licensing  2117 

Appro^'al  of  Water  Works  and  Sewage  Works 2117 

Closing  Roads  2118 

Adjudication  of  Complaints 2120 

Expropriations 2121 

Powers  of  Entry 2121 

Subordinate  Legislative  Power 2122 

Recommendations    2123 

Chapter  129 

THE  POLICE  ACT 2126 

Ontario  Police  Commission  2126 

Investigatory  Powers  2127 

Boards  of  Commissioners  of  Police  2129 

The  Composition  of  Boards  of  Commissioners  of 

Police   2129 

Subordinate  Legislative  Powers 2131 

Police  Discipline  2132 

Trial  of  Minor  Offences 2134 

Trial  of  Major  Offences  2135 

Power  to  Summon  Witnesses  2138 

Witness  Fees 2139 

Recommendations  2139 


Volume  5  xxv 

PAGE 

Chapter  130 

THE  WORKMEN'S  COMPENSATION  BOARD  2141 

Introduction 2141 

Powers  of  Decision  2144 

Compensation    2 1 44 

Destination  of  Compensation  2145 

Amount  of  Compensation  2149 

Manner  of  Payment  of  Compensation 2151 

Commutation  of  Periodical  Payments 2151 

Application  of  a  Lump  Sum  Where  Payments 

are  Commuted 2151 

Assessment  of  Employers  2152 

Penalties  2152 

Classification  of  Employers    2156 

Powers  of  Investigation 2157 

Summons  of  Witnesses  and  Production 2 1 60 

Power  to  Enter,  Search  and  Seize 2160 

Use  of  Information  Obtained  on  an  Inquiry  2162 

Procedure  2162 

The  Claims  Department    2164 

The  Review  Committee  2166 

The  Appeal  Tribunal    2167 

The  Board  2169 

Medical  Reports   2173 

Appeals 2178 

Workmen's  Entitlement  to  Compensation  2178 

Amount  of  Compensation 2179 

Destination  of  Compensation  2179 

Classification  and  Assessment  of  Employers  2180 

Restrictions  on  Judicial  Review  2180 

Workmen's  Adviser 2182 

Recommendations  2188 

SECTION  2 

THE  PROCEEDINGS  AGAINST  THE  CROWN 

ACT,  1962-63 2195 

Introduction 2197 


xxvi         Contents 

PAGE 

Chapter  131 
THE  PROCEEDINGS  AGAINST  THE  CROWN 

ACT,  1962-63  2199 

Introduction 2199 

The  Effect  of  the  Act 2201 

Special  Statutory  Provisions  2205 

Farm  Products  Marketing  Act 2205 

Hospital  Services  Commission  Act  2206 

Milk  Act,  1965    2206 

Ontario  Energy  Board  Act,  1964  2206 

Ontario  Highway  Transport  Board  Act 2206 

Ontario  Municipal  Board  Act  2206 

Power  Commission  Act 2206 

Securities  Act,  1966 2207 

Procedure  2212 

Recommendations  2215 

CONSOLIDATED  SUMMARY  OF  RECOMMEND- 
ATIONS     2217 

TABLE  OF  STATUTES  2265 

TABLE  OF  CASES  2279 


PART  V 


1735 


INTRODUCTION 

In  Report  Number  1  we  dealt  with  the  exercise  and 
control  of  statutoi^y  powers  in  the  administrative  processes  of 
government,  the  administration  of  civil  and  criminal  justice 
in  the  Province  and  safeguards  against  the  unjustified  exer- 
cise of  certain  special  powers. 

In  Report  Number  2  we  dealt  with  representations 
made  to  the  Commission  that  there  should  be  general  safe- 
guards against  unjustified  encroachments  and  infringements 
on  the  rights  of  the  individual  by  the  appointment  of  an 
Ombudsman,  the  adoption  of  a  system  of  administrative 
courts  and  a  Bill  of  Rights. 

The  first  Section  of  this  Report  is  devoted  to  the  applica- 
tion of  general  principles  recommended  for  adoption  in 
Report  Number  1  with  respect  to  the  safeguards  considered 
necessary  for  the  protection  of  the  civil  rights  of  the  indi- 
vidual in  the  exercise  of  powers  conferred  on  certain  typical 
statutory  tribunals. 

In  the  second  Section  we  consider  the  effect  of  the  Pro- 
ceedings Against  the  Crown  Act  with  particular  reference  to 
special  provisions  contained  in  the  statutes  setting  up  the 
tribunals  dealt  with  in  the  first  Section  and  in  relation  to 
other  statutory  provisions. 

Since  the  manuscript  for  this  Report  was  prepared  an 
amendment  to  the  Judicature  Act  was  passed^  creating  a 
Divisional  Court  of  the  High  Court  of  Justice  and  conferring 
jurisdiction  on  it  to  hear  all  appeals  under  any  statute  now 
referred  to  the  High  Court  or  the  Court  of  Appeal  either  by 
way  of  stated  case  or  otherwise  under  any  Act  of  the  Legisla- 
ture other  than  the  Judicature  Act  and  the  County  Courts 
Act.  Any  reference  made  in  this  Report  to  such  appeals  must 
be  read  in  the  light  of  the  provisions  of  this  amendment  when 
it  comes  into  force. 


'Ont.  1970,  c.  97  not  yet  in  force. 

1737 


Section  1 


THE  APPLICATION  OF  GENERAL 

PRINCIPLES  TO  SPECIFIC  STATUTORY 

TRIBUNALS 


1739 


INTRODUCTION 

In  this  Section  wc  analyze  and  discnss  particnlar  powers 
but  not  necessarily  all  those  conlerrecl  on  twenty-two  tribu- 
nals exercising  a  wide  variety  of  powers  ol  decision  affecting 
the  rights  of  the  individual.  The  tribunals  dealt  with  are  by 
no  means  all  of  those  which  exercise  similar  powers  of  deci- 
sion. To  discuss  and  analyze  all  the  powers  of  decision 
conferred  by  statute  on  persons  or  bodies  would  be  a  task  of 
vast  proportions  and  not  warranted  for  the  purposes  of  this 
Commission.  The  tribunals  we  have  selected  for  consideration 
are  representative  and  the  principles  we  have  applied  in 
making  recommendations  with  respect  to  them  may  be  applied 
to  other  decision-making  bodies.  This  is  a  task  that  may  be 
accomplished  by  law  revision  without  further  assistance  from 
this  Commission. 

If  the  recommendations  contained  in  Report  Number  1 
with  respect  to  a  revision  of  the  Public  Inquiries  Act,  a  simpli- 
fied form  of  judicial  review  and  a  Statutory  Powers  Procedure 
Act  are  implemented  the  statutory  revision  will  be  greatly 
simplified  and  safeguards  for  the  rights  of  the  individual  in 
the  decision-making  processes  of  the  administration  of  govern- 
ment will  be  given  a  very  real  measure  of  security. 


1741 


CHAPTER  109 

The  Air  Pollution 
Control  Act,  1967 

INTRODUCTION 

Ihe  powers  conferred  under  this  Act^  are  divisible  into 
two  parts: 

(1)  The  prevention  of  the  construction  of  sources  of  air 
pollution,  and 

(2)  The  correction  of  air  pollution  from  sources  of  pol- 
lution that  have  already  been  constructed. 

POWERS  OF  DECISION 

The  Act  forbids  any  person  to  construct  a  stationary 
source  of  air  pollution  unless  he  has  obtained  from  the  Minis- 
ter of  Health  a  certificate  of  approval  as  to  the  methods  and 
devices  to  be  employed  to  control  the  emission  of  any  air 
contaminant.  The  Minister  may  issue  a  certificate  of  approval 
subject  to  terms  and  conditions. - 

Where  a  person  complains  that  it  is  not  feasible  or  prac- 
ticable to  comply  with  a  certificate  of  approval  or  order  issued 
or  made  under  the  Act  an  application  may  be  made  to  the 
Minister  to  review  the  certificate  or  order.^  A  right  of  appeal 
from  the  certificate  or  order  lies  to  a  county  or  district  court 
judge.  The  appeal  shall  be  a  hearing  de  novo} 

'Ont.  1967,  c.  2. 
-Ibid.,  s.  7. 
Hbid.,  s.  6(1). 
'Ibid.,  s.  6(2). 

1743 


1744  The  Air  Polhition  CoJitrol  Act ,  1967 

A  provincial  officer  may  sur\'ey  from  time  to  time  any 
source  of  air  pollution  and  shall  make  a  report  and  recom- 
mendations. A  copy  of  the  report  shall  be  served  on  the  oper- 
ator or  owner  of  the  source  of  pollution.^ 

Upon  the  request  of  the  operator  or  owner  filed  not  later 
than  14  days  after  the  receipt  of  a  copy  of  the  report  and 
recommendations  of  the  provincial  officer,  the  Air  Pollution 
Control  Advisory  Board  shall  review  the  report  and  make 
recommendations.  Parties  are  entitled  to  be  heard  and  to  be 
represented  by  counsel.  The  report  of  the  Board  to  the  Min- 
ister must  be  served  upon  the  operator  or  owner.*'  The  Min- 
ister may,  upon  receiving  the  report  of  the  Board  "make  such 
order  as  he  deems  necessary  for  prohibiting  the  operation  of 
the  source  of  air  pollution  .  .  ."."  Such  order  is  subject  to 
appeal  to  a  comity  court  judge  under  the  pro\'isions  of  section  6. 

Provision  is  made  for  an  interim  order  by  the  Minister 
to  cover  urgent  cases.  "Whenever  the  Minister,  after  investi- 
gation, is  of  the  opinion  that  any  person  is  emitting  or  causing 
to  be  emitted  into  the  outdoor  atmosphere  any  air  contamin- 
ant that  constitutes  a  serious  danger  to  the  health  of  any  per- 
sons and  that  it  would  be  prejudicial  to  the  interests  of  such 
persons  to  delay  action  to  complete  a  sui'\'ey  .  .  ."^  he  may 
give  a  direction  to  discontinue  the  emission.  After  such  an 
order  is  made  an  opportunity  to  be  heard  must  be  given  to 
the  person  so  notified  "to  present  any  evidence  that  such 
emission  does  not  constitute  a  serious  danger  to  the  health  of 
any  persons".^  We  think  that  the  Minister  should  have  the 
power  to  make  an  interim  order  only  where  the  opinion  is 
based  on  reasonable  and  probable  grounds.^" 

Negotiation  procedure  is  provided,  "where  a  person  com- 
plains that  air  pollution  is  causing  or  has  caused  injury  or 
damage  to  livestock  or  to  crops,  trees  or  other  vegetation  which 
may  result  in  economic  loss  .  .  .".^^  Upon  request  the  Minister 
may  provide  for  the  conduct  of  an  investigation  and  the  estab- 

^Ihid.,  s.  8(2). 

^Ibid.,  s.  8(3)  (4)  (5). 

Uhid.,  s.  9. 

Ubid.,  s.  10(1). 

^Ibid.,  s.  10(2). 

^"See  Chapter  7  supra  and  pp.  257-61  supra. 
"Ont.  1967,  c.  2,  s.  11(1). 


C/kiIjIci  lO'J  1745 

lishment  of  a  board  of  negotiation  to  proceed  "without  pre- 
judice to  any  subsec^uent  proceedings  ...  in  a  stimmary  and 
informal  manner  to  negotiate  a  settlement  of  the  claim". ^^  It 
does  not  appear  that  the  provisions  for  negotiation  affect  the 
right  of  any  of  the  parties  to  ha\e  liability  determined  and 
damages  assessed  in  the  ordinary  courts,  but  this  is  not  specfi- 
cally  setout.^^ 

SUBORDINATE  LEGISLATIVE  POWER 

The  Lieutenant  Governor  in  Coimcil  may  make  regula- 
tions concerning  specific  matters  and  "respecting  any  matter 
necessary  or  advisable  to  carry  out  effectively  the  intent  and 
pmpose  of  this  Act".^^ 

One  of  the  regulations  passed  under  the  authority  of  the 
Act  contains  the  following  provisions: 

"6.— (1)  No  person  shall  operate  or  cause  to  be  operated  any 
equipment  that  does  not  comply  with  the  minimum 
specifications  set  out  in  the  standards  therefor  in 
respect  of  air  quality  in  section  10. 

(2)    No  person  shall  cause  or  permit  to  be  caused  the 
emission  of  any  odour  to  such  extent  or  degree  as, 

(a)  causes  discomfort  to  persons; 

(b)  causes    loss    of   enjoyment   of   normal    use    of 
property;  or 

(c)  interferes  with  normal  conduct  of  business. "^^ 

Subsection  2  is  a  classic  example  of  what  ought  not  to  be 
done  under  subordinate  legislative  power.  For  contravention 
of  this  far-reaching  prohibition  a  person  is  guilty  of  an  offence 
and  liable  to  a  fine  of  up  to  $2,000,  and  a  corporation,  to  a  fine 
of  up  to  $5,000  for  the  first  offence  and  on  each  subsequent 
conviction  to  a  fine  of  up  to  $10,000.^^  It  is  in  no  sense  a 
regulation  for  carrying  out  the  intent  and  purpose  of  the  Act. 
It  is  prohibitory  legislation  that  shotild  be  contained  in  the 
statute  where  it  may  be  readily  found. ^' 

''Ibid.,  s.  11(10). 

''Ibid. 

'*Ibid.,  s.  14(1)  (k). 

"O.  Reg.  449/67,  s.  6  as  amended  by  O.  Reg.  45/68,  s.  2. 

'"Ont.  1967,  c.  2,  s.  16. 

"No  mens  rea  is  required.  See  Regina  v.  Peconi,  [1970]  3  O.R.  693. 


1746         The  Air  Pollution  Control  Act,  1967 

RECOMMENDATIONS 

1.  Section  10(1)  of  the  Act  should  be  amended  to  provide  that 
the  Minister's  opinion  shall  be  based  on  reasonable  and 
probable  grounds. 

2.  Section  11(10)  of  the  Act  should  be  amended  to  state  ex- 
pressly that  the  proceedings  of  the  board  of  negotiation 
shall  be  without  prejudice  to  subsequent  proceedings  of 
any  type,  administrative  or  judicial. 

3.  If  the  provisions  of  section  6(2)  of  O.  Reg.  449/67  are  to 
form  part  of  the  law,  they  should  be  contained  in  the 
statute  and  not  the  regulations  made  under  the  Act. 


CHAPTER  110 


The  Archaeological  and  Historic 
Sites  Protection  Act 


Ihe  purpose  of  this  statute^  is  no  doubt  a  worthy  one 
but  in  seeking  to  accomplish  its  purpose  the  Legislature  has 
neglected  the  rights  of  the  owner  of  the  proposed  historic  site. 
"The  Minister  may  designate  any  land  as  an  archae- 
ological site  or  as  an  historic  site."-  "No  person  shall  excavate 
or  alter  an  archaeological  site  or  an  historic  site  or  remove  any 
archaeological  or  historical  object  therefrom  unless  he  is  the 
holder  of  a  permit."^  The  Minister  is  empowered  to  issue 
permits.^  The  effect  of  these  provisions  is  to  deprive  the 
owner  of  the  designated  land  of  very  real  property  rights  with- 
out compensation  and  without  any  provision  for  being  heard. 

RECOMMENDATIONS 

1.  Provision  should  be  made  for  proper  compensation  to 
owners  of  land  for  rights  required  for  achaeological  or 
historic  sites. 

2.  Procedure  should  be  provided  for  notice  to  the  owner  of 
land  before  the  Minister's  decision  is  made  and  an  oppor- 
tunity to  be  heard  should  be  given. 

3.  Procedure  should  be  provided  to  fix  compensation  for  in- 
jury suffered  by  the  owner  as  a  result  of  the  Minister's 
order. 

'R.S.O.  1960.  c.  19. 
'Ibid.,  s.  2. 
'Ibid.,  s.  3. 
*Ibid.,  s.  4. 

1747 


CHAPTER  1 1 1 

The  Athletics  Commissioner 


INTRODUCTION 

Ihe  Athletics  Control  Act^  and  the  Athletics  Commis- 
sioner appointed  thereunder  are  both  misnomers.  The  Act 
does  not  control  athletics  and  the  Commissioner  is  not  a  com- 
missioner of  athletics. 

The  Act  and  the  regulations  passed  pursuant  to  it  affect 
a  small  segment  of  athletics  and  are  principally  concerned  with 
the  sports  of  boxing  and  wrestling,  amateur  and  professional. 
The  regulations  passed  under  the  Act  deal  with  these  sports 
only.  However,  the  Act  gives  to  the  Minister,  subject  to  the 
approval  of  the  Lieutenant  Governor  in  Council,  power  to 
make  regulations  "regulating  the  holding  and  conduct  of  pro- 
fessional contests  or  exhibitions  of  dancing,  swimming,  row- 
ing and  tennis"-  and  power  to  define  the  words  "amateur" 
and  "professional"  for  the  purposes  of  the  Act  and  the  regula- 
tions.^ 

The  Commissioner  is  appointed  by  the  Lieutenant  Gov- 
ernor in  Council.^  There  is  no  provision  concerning  the  term 
for  which  he  shall  hold  office. 

POWERS  OF  DECISION 

The  powers  conferred  on  the  Commissioner  are  far-reach- 
ing. They  may  be  necessar)'  but  proper  safeguards  should  be 
provided. 

'R.S.O.  1960,  c.  26. 
"Ibid.,  s.  12(1)  (1). 
*Ibid.,  s.  12(1)  (n). 
*Ibid.,  s.  3. 

1748 


Chapter  111  i74'J 

The  first  three  subsections  ol  section  5  of  the  Act  set  out 
the  prnicipal  powers  exercised  by  the  Connnissioner: 

"5.— (1)    Where    the    Commissioner    or    any    otiier    person 
charges, 

(a)  that  a  boxing  or  wrestling  contest  or  exliibition 
^vas  conducted  in  \'iolation  of  tliis  Act  or  the 
regulations;  or 

(b)  that  an  agreement,  contract  or  undertaking 
with  respect  to  any  boxing  or  wrestling  contest 
or  exhibition  was  entered  into  in  violation  of 
this  Act  or  the  regulations;  or 

(c)  that  the  conduct  of  a  person  connected  with  or 
participating  in  a  boxing  or  wrestling  contest 
or  exhibition  was  in  violation  of  this  Act  or 
the  regulations  or  was  not  in  the  interest  of 
boxino;  or  wrestling;, 

the  Commissioner  may  order  any  person  to  deliver 
to  him  forthwith  any  moneys  that  ^vere  paid  or  may 
be  payable  in  connection  wixh.  such  contest  or 
exhibition  and  such  moneys  shall  be  impounded  by 
him  pending  the  disposition  of  the  charge. 

(2)  The  Minister  may  direct  the  Commissioner  or  any 
other  person  to  hold  an  investigation  into  the 
charge  so  made  and  to  report  thereon  to  him  and, 
if  in  his  opinion  the  charge  has  been  proven,  he 
may  declare  the  moneys  impounded  to  be  forfeited, 
and  such  moneys  thereupon  become  the  property  of 
the  Cro^vn. 

(3)  If  the  Minister  does  not  direct  an  investigation  or 
if  he  is  of  the  opinion  that  the  charge  has  not  been 
proven,  he  shall  order  any  moneys  impounded  to 
be  released." 

The  extent  of  these  powers  is  obvious.  We  shall  deal  \vith 
certain  aspects  of  them  only.  Before  doing  so,  we  make  the 
following  general  observations.  The  provisions  impose,  poten- 
tially, a  very  serious  penalty  for  w'hat,  in  many  cases,  might 
be  minor  or  trivial  offences.  In  addition,  under  these  pro- 
visions moneys  may  be  forfeited  to  the  Crown  notwithstand- 
ing that  they  may  belong  to  persons  who  have  not  been  guilty 
of  any  wrongdoing  whatsoever.  A  charge  that  the  Act  or  the 
regulations  have  been  violated  is  susceptible  of  some  form  of 
reasonable  proof,  but  no  standards  are  set  for  determining 


1750         The  Athletics  Commissioner 

what  is  "not  in  the  interest  of  boxing  or  wrestling".  It  may 
well  be  asked  whether  any  or  all  ot  these  powers,  in  their 
present  form,  are  necessary. 

We  turn  now  to  more  specific  criticism  of  the  legislation. 

The  subjective  language  in  section  5(2)— "if  in  his  opinion 
the  charge  has  been  proven"— does  not  accord  with  the  prin- 
ciples relating  to  the  exercise  of  powers  of  decision  of  judicial 
tribunals.^  The  subsection  should  provide  that  a  declaration 
forfeiting  the  moneys  can  only  be  made  "if  the  charges  are 
proven". 

Section  5(1)  provides  for,  what  is  in  effect,  the  making  of 
a  receiving  order  without  notice.  Clearly  this  is  against  funda- 
mental principles  of  natural  justice.  However,  it  may  be  that 
the  power  in  question  might  be  considered,  in  the  context  of 
the  legislative  scheme,  to  be  of  an  emergency  nature  and  that 
the  application  of  the  notice  of  hearing  rule  and  other  pro- 
cedural rules  would  frustrate  the  object  of  the  statute.^ 

It  is  clear  that  the  powers  of  the  Minister  under  sub- 
sections 2  and  3  to  declare  the  moneys  forfeited  or  to  order 
that  they  be  released  are  judicial  powers  of  a  serious  nature. 
They  shotild  be  exercised  by  a  person  holding  a  position  of 
independence,  and  not  by  the  Minister.  In  Report  Number  1 
we  said,  in  considering  the  composition  of  judicial  tribunals, 
that  in  the  absence  of  exceptional  circumstances  justifying  the 
establishment  of  special  tribunals  to  exercise  judicial  powers, 
a  judicial  "tribunal  should  not  be  a  Minister  nor  consist  of 
officials  subject  to  the  control  and  direction  of  a  Minister."^ 

A  further  fundamental  objection  to  these  provisions  is 
that  they  violate  the  well-established  principles  that  he  who 
hears  must  decide  and  he  who  decides  must  hear.*  We  said 
that  such  a  principle  should  be  applicable  to  the  proceedings 
of  judicial  tribunals  and  recommended  that  the  proposed 
Statutoi7  Powers  Rules  Committee  should  be  empowered  to 
make  rules  applicable  to  judicial  tribunals  on  the  following 
points,  amongst  others: 

(a)  the  "findings  of  fact  of  a  judicial  tribunal  should  be  re- 
quired to  be  based  exclusively  on  the  evidence  put  before 

'See  pp.  101-02  supra. 

*See  pp.  213  and  219  supra. 

^p.  123  supra.  See  also  p.  76  supra. 

*See  p.  137  supra. 


Chapter  111  1751 

it  at  the  hearings  and  on  matters  officially  noticed  disclosed 
to  the  parties."'* 

(b)  "no  person  should  participate  in  a  decision  of  a  judicial 
tribunal  who  is  not  a  member  of  the  tribunal,  or  who  has 
not  been  present  at  the  hearing  and  heard  and  considered 
the  evidence.  All  persons  who  have  heard  and  considered 
the  evidence  should  participate  in  the  decision."^" 

As  the  legislation  now  stands  the  Minister  bases  his  decision 
on  the  Commissioner's  report  and  not  on  the  evidence.  The 
Minister  does  not  consider  or  hear  the  evidence. 

Subsections  2  and  3  of  section  5  should  be  amended 
to  provide  that  the  tribiuial  hearing  the  evidence  should  make 
the  decision. 

Under  the  legislation  the  Commissioner  may  be  both  the 
accuser  and  the  investigator  and  on  his  report  the  Minister 
may  make  the  declaration  forfeiting  the  moneys.  This  is  wrong 
in  principle.  When  the  Commissioner  is  the  accuser  he  does 
not  hold  that  degree  of  independence  required  of  one  who 
conducts  an  investigation  and  on  whose  report  a  declaration 
of  forfeiture  may  be  made.  This  objection  would  be  answered 
by  providing  that  the  deciding  tribunal  shall  hear  the  evidence 
and  that  the  charge  which  initiates  the  proceedings  should  be 
made  by  some  person  other  than  the  tribunal. ^^ 

No  procedural  provisions  are  contained  in  the  subsections 
of  section  5  which  we  have  quoted.  This  will  be  rectified  if 
the  Statutoi-y  Powers  Procedure  Act  which  we  have  recom- 
mended is  enacted  and  special  rules  made  thereunder  by  the 
Statutory  Powers  Rules  Committee. ^^ 

The  statute  contains  no  provision  relating  to  an  appeal 
from  the  Minister's  decision.  This  is  a  clear  case  where  an 
appeal  should  lie  to  the  courts. ^^ 

Section  9(1)  of  the  Act  enables  the  Minister  "where 
moneys  payable  to  the  Minister  under  this  Act  or  the  regula- 
tions .  .  .  are  not  received  by  the  Minister  within  one  week" 

•p.  219  supra. 
"p.  220  supra. 

"See  pp.  47-49  and  76-79  supra. 
"See  Chapter  14,  supra. 
»'3ee  p.  234  supra. 


1752  The  Athletics  Commissioner 

from  the  holding  of  a  wrestling  or  boxing  contest  or  exhibi- 
tion to  ''direct  that  the  building  or  other  place  where  such 
contest  or  exhibition  was  held  shall  not  be  used  for  the  hold- 
ing of  any  professional  contest  or  exhibition  or  any  contest 
or  exhibition  of  amateur  boxing  or  ^vrestling  until  such 
moneys  have  been  paid  to  the  Minister. "^^ 

In  accordance  with  the  recommendations  which  we  have 
made  with  respect  to  section  5  we  recommend  that  the  power 
referred  to  in  section  9(1)  be  exercised  by  an  independent 
judicial  tribunal  and  that  there  should  be  a  right  of  appeal 
from  the  decision  of  this  tribunal. 

The  proposed  Statutory  Powers  Procedure  Act  should 
provide  the  necessary  procedural  rights  to  persons  affected  by 
the  exercise  of  the  power  conferred;  as  the  legislation  now 
stands  no  procedural  rights  of  any  type  are  provided. 

SUBORDINATE  LEGISLATIVE  POWERS 

The  powers  given  to  the  Minister  to  make  regulations 
with  the  approval  of  the  Lieutenant  Governor  in  Council 
with  respect  to  the  sports  of  wrestling  and  boxing  have  been 
exercised.  ^^  The  power  to  make  regulations  extending  to  the 
holdino^  and  conduct  of  contests  or  exhibitions  of  dancins^. 
swimming,  rowing  and  tennis  have  not  been  exercised.  It  is 
difficult  to  see  Tvhy  the  po^ver  to  make  regulations  controlling 
these  activities  should  be  given  to  the  Minister  when  it  has 
not  been  necessary  to  exercise  it  for  over  twenty  years. 

Section  12(l)(h)  provides  that  regulations  may  be  made 
"authorizing  the  Commissioner  to  levy  fines  or  other  pecu- 
niary penalties  against  officials  or  against  persons  who  are  the 
holders  or  who  by  the  regulations  are  required  to  be  the 
holders  of  licences  under  this  Act  for  failure  to  comply  with 
any  provision  of  this  Act  or  of  the  regulations." 

This  subordinate  legislative  power  has  been  exercised. 

"Where  a  person  holding  a  licence  fails  to  comply  with  any 
provision  of  the  Act  or  this  Regulation,  the  Commissioner 
may  fine  him  an  amount  not  exceeding  $50  or  suspend  his 
licence,  or  both."^^ 


"R.S.O.  1960,  c.  26,  s.  9(1). 
^'O.  Reg.  26/67. 
"7&/rf.,  s.  5(1). 


C/ialjtc'i  1 1 J  1753 

The  power  to  levy  tines  tor  breacli  oi  any  pro\i.sion  of 
substantive  law  should  be  conferred  on  tlie  ordinary  courts 
and  not  on  any  other  bodies. 

A  mere  reading  of  this  provision  shows  a  departure  from 
principle.  A  penalty  may  be  le\  led  but  no  procedure  whatso- 
e\  cr  is  laid  down  to  govern  the  Connnissioner's  power  to  tine. 
Ihis  may  be  contrasted  with  the  procedures  provided  in  the 
Summary  Convictions  Act  relating  to  prosecutions  which  may 
result  in  the  imposition  of  Hues.  In  addition,  section  12(l)(h) 
places  no  limit  on  the  amount  of  the  fine  or  other  pecuniary 
penalty  which  may  be  authorized  by  regulation.  In  Report 
Number  1  we  said  that  wliile  "some  sanctions  for  breach  of 
prohibitoi'y  regulations  are  necessary  ...  in  our  view  the 
penalty  should  be  fixed  or  at  least  limited  by  the  statute 
authorizing  the  regulations.  It  should  not  be  left  to  the  sub- 
ordinate legislator  to  fix  penalties  according  to  his  or  its 
will".^' 

The  power  conferred  under  section  12(l)(n)  to  make  regu- 
lations "defining  'amateur'  and  'professional'  for  the  purposes 
of  this  Act  and  the  Regulations"  has  been  exercised. ^"^  These 
^v'ords  should  be  defined  in  the  Act  and  not  by  regulations.^^ 

LICENSING  POWERS 

Under  paragraphs  (d),  (e),  (f)  and  (g)  of  section  12(1) 
regulations  may  be  made  concerning  the  licensing  and  the 
issue  of  permits  for  the  holding  of  amateur  and  professional 
boxing  and  wrestling  contests  and  the  licensing  of  amateur 
and  professional  boxers  and  wrestlers,  and  other  related 
matters. 

Regulations  respecting  licensing  have  been  made  in  the 
exercise  of  the  pov.ers.   For  example: 

"4.— (1)    \Vhere  the  Commissioner  is  of  the  opinion  that  he 
should  not  issue  a  licence,  he  may  refuse  to  issue 

it 

5.— (1)  AV^here  a  person  holding  a  licence  fails  to  comply 
with  any  provsion  of  the  Act  or  this  Regulation, 
the  Commission :r  may  fine  him  an  amount  not 
exceeding  $50  or  suspend  his  licence,  or  both. 

"p.  350  supra. 

"See  O.  Reg.  26/67,  s.  1. 

"See  pp.  345-48  supra. 


1754         The  Athletics  Commissioner 

(2)  Where  a  person  holding  a  licence  contravenes  the 
Act  or  this  Regulation,  the  Commissioner  may, 
after  a  hearing,  cancel  the  licence.  .  .  . 

11.— (1)    Except  under  a  licence  in  Form  1,  no  person  shall 
hold  an  amateur  boxing  contest  or  exhibition. "^'^ 

There  are  several  provisions  in  the  Regulation  similar  to 
section  4(1)  respecting  different  types  of  licences. 

No  standards  or  factors  are  set  out  in  the  Regulation  to 
govern  or  influence  the  Commissioner's  subjective  decision 
not  to  issue  a  licence.  Guidance  relating  to  the  licensing  proc- 
ess should  be  set  out  in  the  Act  and  the  basic  principles 
should  be  stated  in  the  statute  and  not  in  the  regulation. ^^ 
The  subjective  power  of  the  Commissioner  should  be  abol- 
ished.^^ The  absence  of  adequate  procedural  safeguards  re- 
specting licensing  procedures  should  be  met  by  the  Statutory 
Po^vers  Procedure  Act  when  enacted  and  specific  rules  made 
governing  the  licensing  proceedings  of  the  Commissioner.^^ 

There  should  be  a  right  of  appeal  from  the  licensing  de- 
cisions.^^ 

POWERS  OF  INVESTIGATION 

Section  7  of  the  Act  confers  on  the  Commissioner,  for  the 
purposes  of  investigations  under  section  5  or  6  of  the  Act, 
"all  the  powers  that  may  be  conferred  upon  a  commissioner 
under  The  Public  Inquiries  Act".  We  have  recommended 
that  this  formula  should  read  "the  provisions  of  the  Public 
Inquiries  Act  should  apply  ...  to  investigations  under  this 
Act"  and  we  have  further  recommended  that  the  Public  In- 
quiries Act  should  be  re-drafted  having  regard  to  the  sub- 
stantive and  procedural  recommendations  made  in  Section  4 
of  Part  I  of  Report  Number  1.-^  The  Statutory  Powers  Rules 
Committee  recommended  in  Report  Number  1  should  be 
empowered  to  make  rules  respecting  investigations  under  the 
Act.26 


'"O.  Reg.  26/67,  ss.  4,  5,  11. 
"See  p.  1117  supra. 
"pp.  1 105-06  supra. 
"See  Chapter  76  supra. 
"See  pp.  1128-32  supra. 
"See  p.  465  supra. 
^"See  pp.  451-52  iupra. 


Chapter  111  1755 

RECOMMENDATIONS 

1.  The  power  in  section  5(2)  of  the  Athletics  Control  Act  to 
declare  moneys  forfeited  should  be  expressed  in  objective, 
and  not  subjective  terms. 

2.  The  powers  exercisable  under  subsections  2  and  3  of 
section  5  should  be  exercised  by  a  person  holding  a  posi- 
tion of  independence,  and  not  by  the  Minister. 

3.  Subsections  2  and  3  of  section  5  should  be  amended  to 
provide  that  the  person  hearing  the  evidence  should  make 
the  decision  and  the  charge  initiating  the  proceedings 
should  be  made  by  some  person  other  than  the  person 
on  whom  the  power  to  hear  and  decide  is  conferred. 

4.  There  should  be  an  appeal  to  the  courts  from  decisions 
made  under  subsection  2  of  section  5. 

5.  Section  9(1)  should  be  amended  to  provide  that  an  inde- 
pendent judicial  tribunal  exercise  the  powders  conferred 
thereunder  and  that  there  be  a  right  of  appeal  from  the 
decision  of  this  tribunal. 

6.  Section  12(l)(h)  should  be  amended  by  deleting  the  power 
to  make  regulations  authorizing  the  Commissioner  to  levy 
fines  or  other  pecuniary  penalties.  If  fines  or  pecuniary 
penalties  are  to  be  levied  the  Act  and  not  a  regulation 
passed  thereunder  should  provide  a  maximum  limit  for 
the  fine  or  penalty. 

7.  Section  12(l)(n)  enabling  regulations  to  be  made  defining 
certain  words  in  the  Act,  should  be  repealed. 

8.  The  licensing  provisions  in  section  12  of  the  Act  should 
afford  guidance  by  setting  standards  or  factors  governing 
the  decision  to  license.  The  subjective  power  of  the  Com- 
missioner to  refuse  licences  should  be  abolished. 

9.  There  should  be  a  right  of  appeal  from  licensing  decisions. 


CHAPTER  112 


The  Farm  Products 
Marketing  Board 


INTRODUCTION 

IHE  Farm  Products  Marketing  Board,  referred  to  in  (liis 
Chapter  as  "the  Board",  has  general  responsibility  for  admin- 
istering the  Farm  Products  Marketing  Act.^  Section  2  of  the 
Act  states  that  its  "purpose  and  intent"  is: 

"(a)  to  provide  for  the  control  and  regulation  in  any  or  all 
respects  of  the  marketing  ^vithin  Ontario  of  farm  products; 
and 

(b)  Avhere  a  plan  established  imder  this  Act  for  control  and 
regulation  of  the  marketing  of  a  regulated  product  is 
amended  to  provide  for  control  and  regulation  in  any  or  all 
respects  of  the  producing  of  the  regulated  product,  to  pro- 
vide for  control  and  regulation  in  any  or  all  respects  of  the 
producing  and  marketing  ^vithin  Ontario  of  the  regulated 
product, 

including  the  prohibition  of  such  marketing  or  such  pro- 
ducing and  marketing,  as  the  case  may  be,  in  'wiiole  or  in 
part."- 

The  balance  of  the  statute  provides  for,  in  vai~ying  de- 
grees of  detail,  the  methods  and  machinery  for  carrying  out 
these  broad  objecti\'es.  Before  examining  the  nature  of  the 
Board  and  its  poAvers  insofar  as  they  bear  on  civil  rights,  it  is 

'R.S.O.  I960,  c.  137  as  amended  by  Ont.  1961-62,  c.  41;  Ont.  1962-63,  c.  45; 

Ont.  1964,  c.  31;  Ont.  1965,  c.  39;  Ont.  1965,  c.  56;  Ont.  1968,  c.  40;  and 

Ont.  1968-69,  c.  37. 
^R.S.O.  1960,  c.  137,  s.  2  as  re-enacted  by  Ont.  1962-63,  c.  45.  s.  2.  Attention  is 

drawn  to  the  General  Farm  Organization  Act  1968-69,  Ont.   1968-69,  c.  42, 

s.  3(3)  which  has  not  been  proclaimed  since  the  vote  taken  under  s.  2  was 

unfavourable. 

1756 


Chapter  112         1757 

liclpful  to  indicate  briefly  the  scope,  purpose  and  content  of 
the  legislation  ^vhich  it  administers. 

The  references  in  section  2  of  the  Act  to  "the  marketing 
within  Ontario"  and  to  "the  producing  and  marketing  xvithin 
Ontario"^  are  reflections  of  the  Province's  incompetence  to 
regulate  the  production  and  marketing  of  products  in  inter- 
provincial  and  export  trade.  This  power  is  reserved  to  the 
Parliament  of  Canada.^ 

Generally,  the  pinpose  of  "controlling  and  regulating" 
marketing  is  to  accord  to  farmers— primary  producers— a  meas- 
ure of  economic  protection.  Without  some  form  of  control 
the  "weak  bargaining  power  of  the  individual,  unorganized 
farmer,  and  the  perishable  nature  of  most  of  his  products, 
make  him  a  passive  price-taker."^ 

METHODS  OF  CONTROL 

The  main  methods  of  control  and  regulation  of  the  pro- 
duction and  m.arketing  of  farm  products  are:  the  establish- 
ment by  the  Lieutenant  Governor  in  Council  of  "plans  for 
control  and  regulation  of  the  marketing  w^ithin  Ontario  or 
any  part  thereof  of  any  farm  product";^  the  constitution  by 
the  Lieutenant  Governor  in  Council  of  local  boards  to  admin- 
ister such  plans;'   the  requirement  of  licences  to  engage  in 

'Italics  added. 

*"A  producer  is  entitled  to  dispose  of  his  products  beyond  the  Province  with- 
out reference  to  a  provincial  marketing  agency  or  price,  shipping  or  other 
trade  regulation:  .  .  ."  Referetice  re  The  Farm  Products  Marketing  Act, 
[1957]  S.C.R.  198,  210  per  Rand,  J.  The  constitutional  decisions  on  the 
subject  of  marketing  legislation  can  be  found  in  Laskin,  Canadian  Constitu- 
tional Laic,  (3rd  ed.,  1966)  357-415.  On  the  practical  problems  flowing  from 
the  division  of  legislative  poAver  provincially  and  federally  in  the  marketing 
field  see  Corn',  Difficulties  of  Divided  Jurisdiction,  Roval  Commission  on 
Dominion-Provincial  Relations  Study,  (Appendix  7,  11  ff.).  The  Parliament 
of  Canada  in  t!ie  Agricultural  Products  Marketing  Act,  R.S.C.  1952,  c.  6, 
s.  2(1)  has  enabled  the  Governor  in  Council  to  confer  on  provincially- 
established  marketing  boards  authority  to  regulate  inter-provincial  and 
export  trade.  The  Supreme  Court  of  Canada  in  P.E.I.  Potato  Marketing 
Board  v.  H.  B.  V/illis  Inc.  and  A.-G.  Canada,  [1952]  2  S.C.R.  392  has  upheld 
the  constitutionality  of  this  delegation.  Pursuant  to  this  Federal  statute 
Ontario  local  boards  both  make  and  administer  federal  law. 

^Report  of  the  .Agricultural  Marketing  Enquiry  Committee  of  Ontario,  June 
1961,  80.  For  detailed  studies  on  the  under-lying  economic  situations  giving 
rise  to  this  legislation  and  its  effects  see  the  bibliography  in  that  Report, 
212-17.  For  the  history  of  Ontario  marketing  legislation  see  G.  F.  Perkin, 
Marketing  Milestones  in  Ontario,  1935-1960. 

'R.S.O.  1960,  c.  137,  s.  6(1)  (a). 

'Ibid. 


1 758         The  Farm  Products  Marketing  Board 

"the  producing,  marketing  or  processing  of  a  regulated  pro- 
duct";^ the  establishment  of  production  quotas  (applicable 
only  to  tobacco)®  and  marketing  quotas;^*'  the  control  and 
regulation  of  agreements  entered  into  between  farmers  and 
persons  engaged  in  marketing  or  processing  the  regulated 
product; ^^  a  form  of  conciliation  procedure  to  settle  minimum 
prices  for  regulated  products  and  other  matters; ^^  the  con- 
ducting of  pools  by  local  boards  for  the  distribution  of  all 
moneys  received  from  the  sale  of  a  regulated  product^^  and 
the  requirement  that  all  sales  of  a  regulated  product  be  "to  or 
through  the  local  board  constituted  to  administer  the  plan 
under  which  the  regulated  product  is  regulated, "^^ 

THE  BOARD 

The  Act  provides  that  the  Board  shall  be  a  body  corpor- 
ate^^ and  that  it  shall  consist  of  "one  or  more  persons  who  shall 
be  appointed  by  and  hold  office  during  the  pleasure  of  the 
Lieutenant  Governor  in  Council". ^^  At  "any  meeting  of  the 
Board,  a  quorum  shall  consist  of  at  least  three  members  of 
the  Board". ^^  Obviously  the  Act  should  require  that  the  Board 
should  "consist  of  three  or  more  persons".  The  Board  must 
consist  of  at  least  the  number  fixed  for  its  quorum. 

The  Board  has  the  power,  subject  to  the  approval  of  the 
Lieutenant  Governor  in  Council,  to  appoint  its  own  em- 
ployees—their remuneration  to  be  determined  by  the  Lieuten- 
ant Governor  in  Council. ^^ 

Generally,  the  Board's  powers  are  adjudicative,  legisla- 
tive (including  the  power  to  sub-delegate  legislative  powers) 
and  investigative.  The  power  to  sub-delegate  legislative  powers 

Ubid.,  s.  8(1),  para.  1. 

^Ibid.,  s.  8(1),  para.  11  and  s.  18  as  amended  by  Ont.  1962-63,  c.  45,  s.  11  and 
Ont.  1966,  c.  56,  s.  2. 
"■"Ibid.,  s.  8(1),  paras.  11a  and  lib  as  enacted  by  Ont.  1962-63,  c.  45,  s.  6(4)  and 

amended  by  Ont.  1966,  c.  56,  s.  1(1). 
"/6zrf.,  s.  8(1),  para.  12a  as  re-enacted  by  Ont.  1966,  c.  56,  s.  1(3). 
"/fejrf.,  s.  8(1),  paras.  16-19  as  amended  by  Ont.  1965,  c.  39,  s.  3(3)  (4). 
^Ubid.,  s.  8(1),  para.  20  as  re-enacted  by  Ont.  1968-69  c.  37,  s.  3(2). 
"/fozrf.,  s.   8(1),  para.   28a  as  enacted   by   Ont.    1962-63,   c.   45,  s.   6(12)   and 

amended  by  Ont.  1966,  c.  56,  s.  1(4). 
^'Ibid.,  s.  3(1). 

"/feirf.,  s.  3(2).  Italics  added. 

^'Ibid.,  s.  3(4a)  as  enacted  by  Ont.  1965,  c.  39,  s.  1(2). 
^Ubid.,  s.  3(5). 


Chapter  112  1759 

is  the  Board's  most  significant  power  as  iar  as  the  actual  opera- 
tion of  the  Farm  Products  Marketing  Act  is  concerned  and 
also  with  regard  to  its  impact  on  civil  rights.  Section  8(5)  of 
the  Act^"  enables  the  Board  to  sub-delegate  to  a  local  board 
all  of  the  extensi\'e  powers  to  make  regulations  which  are  con- 
ferred on  the  Board  by  section  8(1).  Our  survey  of  Board 
regulations  and  local  board  regulations  shows  that  ample  use 
has  been  made  of  this  power  of  sub-delegation.  This  we  shall 
discuss  in  detail  later  in  this  Chapter. 

THE  LOCAL  BOARDS 

Section  6(1  )(a)  provides,  in  part: 

"The  Lieutenant  Governor  in  Council  may  make  regula- 
tions .  .  .  establishing  .  .  .  plans  for  control  and  regulation  of 
the  marketing  ...  of  any  farm  product  and  constituting 
local  boards  to  administer  such  plans;  .  .  ."^" 

Section  6(3)  provides: 

'The  method  by  which  the  members  of  a  local  board  shall 
be  appointed,  elected  or  chosen  and  the  application  of  the 
plan  shall  be  set  out  in  the  plan  under  which  the  local  board 
is  established. "2^ 

Local  boards  are  bodies  corporate."^  The  qualifying  word 
"local"  does  not  connote  that  a  local  board  is  intended  to 
function  only  within  a  particular  geographical  locality  in 
Ontario  (although  with  respect  to  many  regulated  products 
this  is  the  case)  but  rather  that  the  local  board  is  established 
to  administer  a  marketing  plan  covering  one  product  (e.g. 
apples)  or  a  group  of  related  products  (e.g.  greenhouse  vege- 
tables) only.  The  method  of  choosing  the  local  board  usually 
provided  for  in  the  plans  made  by  the  Lieutenant  Governor 
in  Council  is  that  of  election  by  farmers  affected  by  the  plan. 
The  local  boards  are,  for  the  most  part,  producer  boards. ^^ 

^"Ibid.,  s.  8(5)  as  amended  by  Ont.  1962-63,  c.  45,  s.  6(14). 

'"•Ibid.,  s.  6(1)  (a). 

'Ubid.,  s.  6(3). 

''Ibid.,  s.  4(5). 

''^In  the  case  of  apples  the  local  board  is  the  Ontario  Apple  Marketing  Com- 
mission which  comprises  twelve  producers,  one  retailer,  one  consumer  (as 
defined),  five  dealers  and  four  processors:  O.  Reg.  424/68. 


1760  The  Farm  Frodiicls  Ahn kelnis;  Board 

"The  acts  of  a  member  or  an  officer  of  a  local  board  are  valid 
notwithstanding  any  defects  that  may  afterwards  be  dis- 
covered in  his  qualifications  and  appointment  or  election."-^ 

This  provision  goes  too  far.  A  brief  reading  of  the  Act 
shows  that  local  boards  have  many  wide-ranging  powers 
which  may  profoundly  affect  the  civil  rights  of  an  indi- 
vidual. It  is  wrong  that  a  person  acting  on  behalf  of  a  local 
board  should  have  the  authority  to  exercise  these  powers 
validly  even  though  he  lacks  the  necessary  qualifications  re- 
quired by  law  for  his  election  (e.g.,  he  is  not  a  producer)  or 
has  not  been  elected  in  conformity  with  the  applicable  legis- 
lative provisions— or  has  not  been  properly  elected  at  all.  To 
give  validity  to  the  exercise  of  such  powers  is  to  justify  a 
purported  act  w^hich  otherwise  lacks  proper  legal  sanction.  It 
mtist  be  assumed  that  the  provisions  in  the  Act  and  the  regu- 
lations passed  thereunder  on  the  qualifications  of  local  board 
members,  and  the  procedure  for  their  election,  are  intended 
to  be  some  safeguards  protecting  the  interests  of  those  who 
will  be  affected  by  the  acts  of  such  members.  Section  6(4) 
aborts  these  safeguards. 

The  provision  would  be  acceptable,  we  suggest,  if  the 
defects  intended  to  be  covered  thereby  were  of  a  technical 
nature  only.  Substantial  defects  should  result  in  the  purported 
acts  being  invalid.^^ 

It  may  be,  however,  that  the  provision  as  it  now  stands,  as 
a  matter  of  interpretation,  is  not  effective  to  validate  all  the 
acts  referred  to  in  it.  If  a  "member"  or  "officer"  is  not 
appointed  or  elected  in  compliance  with  the  applicable  legis- 
lative requirements  then  it  could  be  argued  that  his  cr  their 
"acts"  are  not  "the  acts  of  a  member  or  officer  of  a  local 
board". 

SCOPE  OF  POWERS  OF  THE  BOARD  AND 
THE  LOCAL  BOARDS:  DEFINITIONS 

The  powers  of  the  Board  and  the  local  boards  are  limited 
by  the  definition  of  "farm  product".  The  definition  is  wide. 
Farm  product  means: 

"R.S.O.  1960,  c.  137,  s.  6(4). 

^^See  the  effect  given  to  the   provision  in  Rohbins  v.    Ontario  Flue-Cured 
Tobacco  Growers'  Marketing  Board,  [19641  1  O.R.  56,  64. 


Chapter  112         17(31 

".  .  .  animals,  meats,  eggs,  poultry,  wool,  dairy  products, 
grains,  seeds,  iruit,  iruit  produi  ts,  \egelables,  vegetable  prod- 
ucts, maple  products,  honey,  tobacco,  wood,  or  any  class  or 
part  of  any  such  product,  and  such  articles  of  food  or  drink 
manufactured  or  derived  in  whole  or  in  part  from  any  such 
product,  and  such  other  natiual  jjnxhu  ts  of  agriculture  as 
are  designated  by  the  regidations  and  for  the  purposes  of  this 
Act,  fish  shall  be  deemed  to  be  a  farm  product."-" 

Section  8(1)  paragraph  24  provides  that  the  Board  may 
make  regulations: 

"designating  as  a  farm  produc  t  any  article  of  food  or  drink 
manufactured  or  deri\ed  in  ^vhole  or  in  part  from  a  farm 
product  or  any  natural  product  of  agricidture."^" 

This  power  may  be  delegated  by  the  Board  to  a  local 
board.--  The  result  is  that  a  local  board  could  extend  the 
scope  of  the  Act  by  extending  the  definition  of  "farm  product". 

The  power  given  to  the  Board  and  by  the  delegation  to 
local  boards  to  define  the  scope  of  the  statute  is  an  abnegation 
cf  the  constitutional  process  of  democratic  government. 

The  power  of  the  Board  to  make  regulations  generally  ^^* 
or  with  respect  to  any  regulated  product,  designating  as  a  farm 
product  any  article  of  food  or  drink  manufactured  or  derived 
in  Tvhole  or  in  part  from  a  farm  product  or  any  natural 
product  of  agriculture  is  wide  enough  to  permit  the  Board  to 
bring  within  its  control  a  whole  range  of  articles  of  food  or 
drink,  from  alcoholic  beverages  to  cake  mixes,  milk  shakes, 
and  chocolate  bars.  The  provisions  giving  the  Board  the 
pow^er  to  define  "farm  product"  should  be  repealed. 

The  device  of  extending  the  definition  of  "farm  prod- 
uct" to  "such  other  natural  products  of  agriculture  as  are 
designated  by  the  regulations"  is,  also,  objectionable.  The 
definition  of  "farm  product"  contained  in  the  first  part  of 
the  clause  and  the  potential  consequences  which  may  ensue 
to  the  producers  and  marketers  of  a  non-included  product  if 
it  is  brouffht  within  the  ambit  of  the  Act,  are  such  that  the 


""R.S.O.  1960.  c.  137,  s.  1(b)  as  amended  by  Ont.  1962-63,  c.  45.  s.  Ml 

-Ubid.,  s.  8(1),  para.  24. 

^Ubid.,  s.  8(5)  as  amended  bv  Ont.  1962-63,  c.  45,  s.  6n4\ 

"^Hbid.,  s.  8(1). 


1762         The  Farm  Products  Marketing  Board 

Legislature  itself,  and  not  an  appointed  body,  should  decide 
what  the  Act  is  intended  to  cover.^'^ 

The  definition  section  includes  "dairy  products"  within 
the  meaning  of  farm  products.  The  Milk  Act,  1965^"  provides 
for  a  marketing  control  and  regulation  system  for  milk  prod- 
ucts very  much  the  same  as  that  of  the  Farm  Products  Market- 
ing Act.^^  Obviously,  with  respect  to  milk  or  dairy  products, 
the  two  Acts  overlap.  It  may  well  be  that  the  courts  would 
hold  that  by  implication  the  products  covered  by  the  Milk 
Act,  1965  are  exempt  from  the  Farm  Products  Marketing  Act 
but  the  legislation  should  not  be  drawn  so  as  to  make  such  an 
implication  necessai*y.  Conceivably  a  farmer  who  produces 
and  sells  milk  products  could  be  subject  to  two  different 
schemes  of  control  with  respect  to  the  same  product.  Since  the 
Legislature  clearly  intends  to  regulate  the  marketing  of  milk 
products  under  the  Milk  Act,  1965  consideration  should  be 
given  to  deleting  "dairy  products"  from  the  Farm  Products 
Marketing  Act. 

"Marketing"  is  defined  as  meaning: 

".  .  .  buying,  selling  and  offering  for  sale,  and  includes 
advertising,  financing,  assembling,  storing,  packing  and 
shipping  and  transporting  in  any  manner  by  any  person,  and 
'market'  and  'marketed'  have  corresponding  meanings. "^^ 

This  definition  is  too  wide.  "Marketing"  means,  amongst 
other  things,  "financing"  and  "transporting".  It  may  be  noted 
that  section  8  of  the  Act  enables  the  Board  to  pass  regulations 
"providing  for  the  licensing  of  any  or  all  persons  before  com- 
mencing or  continuing  to  engage  in  the  producing,  market- 
ing or  processing  of  a  regulated  product". ^^  A  regulation 
passed  under  this  provision  requiring  a  licence  for  a  person  to 

°®pp.  345-48  supra.  WTien  the  Farm  Products  Marketing  Act  was  first  enacted 
(as  the  Farm  Products  Control  Act)  the  definition  clause  respecting  farm 
products  read,  in  part: 

".  .  .  and  such  other  natural  products  of  agriculture  as  the  Lieutenant- 
Governor  in  Council  may  designate  and  such  articles  of  food  or  drink 
manufactured  or  derived  in  whole  or  in  part  from  any  such  product  as 
the  Lieutenant-Governor  in  Council  may  designate;  .  .  .":  Ont.  1937,  c.  23, 
s.  2(b). 
This  is  less  objectionable  than  leaving  the  definition  to  an  appointed  body 
not  responsible  to  the  Legislature. 
""Ont.  1965,  c.  72. 
'^See  Chapter  117  infra. 

"R.S.O.  1960,  c.  137.  s.  1(e)  as  re-enacted  by  Ont.  1962-63,  c  45.  s.  1(2). 
"Ibid..  8(1),  para.  1. 


Chapter  112  170:5 

market,  tor  example,  apples,  would  make  k  uiilawtul  lor  a 
man  to  carry  ("transport")  a  basket  ol  apples  to  a  friend  across 
the  street  without  a  licence. ^^  Further,  such  a  regulation 
could  have  the  effect  of  making  it  inilawful  for  a  man  without 
a  licence  to  borrow  money  on  the  security  of  a  crop  which  he 
does  not,  in  any  way,  intend  to  "market"  in  the  ordinary  sense. 

"Transporting,"  "financing"  and  other  words  in  the 
definition  clause  can,  in  several  given  instances,  cover  situa- 
tions entirely  disassociated  from  marketing,  l^he  clause 
should  contain  language  to  the  effect  that  the  various  acts  or 
activities  defined  as  "meaning"  or  "including  marketing" 
should  be  part  of  a  process  intended  to  result  in  a  sale  of  the 
regulated  product  in  question. 

In  contrast,  there  is  an  absence  of  a  definition,  for  the 
purposes  of  the  Act,  of  what  are  obviously  two  key  words  in 
the  Act— "producing"  and  "processing".  The  Act  makes  re- 
peated reference  to  these  activities  and  subjects  them  to  at 
least  as  much  control  and  regulation  (through  prohibition, 
adjudication,  licensing,  investigation,  prosecution,  etc.)  as 
"marketing".  The  Board  has  informed  us  that  the  "variety  of 
products  capable  of  being  regulated  under  the  Act  are  amen- 
able to  so  many  different  forms  of  processing  that  a  single 
definition  in  the  Act  capable  of  being  applied  to  such  forms 
of  processing  would  be  so  long  and  complex  as  to  pose  diffi- 
culties in  drafting". ^^  It  may  be  that  the  same  explanation 
would  apply  to  "producing".  We  recognize  these  drafting 
difficulties  but  where  the  Legislature  intends  to  subject  two 
otherwise  lawful  activities  to  close  regulation  and  control  it 
has  a  responsibility  to  define  these  activities  with  as  much 
certainty  and  precision  as  possible.  Even  if  the  statutory 
definitions  of  these  activities  were  extremely  wide  they  would, 
at  least,  mark  off  the  outside  limits  of  the  type  of  activity 
intended  to  be  controlled,  and  therefore  confine  any  sub- 
ordinate legislation  made  under  the  Act,  or  other  steps  to 
regulate  given  products,  within  these  boundaries.    Many  of 

"The  Interpretation  Act,  R.S.O.  1960,  c.  191,  s.  6  provides  that  where  an  Act 
confers  power  to  make  regulations  "expressions  used  therein,  unless  the  con- 
trary intention  appears,  have  the  same  meaning  as  in  the  Act  conferring  the 
power". 

^•'i^etter,  December  18th,  1967. 


1764         The  Farm  Products  Marketing  Board 

the  plans  made  under  the  Act  contain  definitions  of  "pro- 
ducers" and  "processors"— with  reference  to  the  regulated 
product  in  question.  If  the  Act  contained  general  definitions 
of  the  words  "producing"  and  "processing"  then  it  could  be 
determined  at  a  glance  whether  or  not  the  definitions  in  these 
plans  are  authorized.  As  the  legislation  now  stands  this  is  not 
possible. 

THE  PLAN 

The  powers  of  the  Board  to  control  and  regulate  the 
production  and  marketing  of  any  product  are  set  in  motion 
by  establishing  plans  under  the  Act.  Local  boards  have  been 
constituted  with  respect  to  the  following  products:  apples, 
asparagus,  beans,  berries  for  processing,  broiler  chickens, 
celery,  eggs  and  fowl,  fresh  fruit,  fresh  grapes,  fresh  vegetables, 
grapes  for  processing,  greenhouse  vegetables,  hogs,  onions, 
seed-corn,  soya-beans,  sugar-beets,  tender  fruit  for  processing, 
tobacco,  turkeys,  vegetables  for  processing,  and  wheat.  It 
appears  that  at  the  present  time  there  are  in  fact  no  local 
boards  in  operation  with  respect  to  celery,  fresh  vegetables 
and  sugar-beets.  There  are,  therefore,  19  local  boards  now 
operating  in  the  Province. 

A  plan  is  defined  as  "a  plan  to  provide  for  the  control  and 
regulation  of  the  marketing  of  a  farm  product  that  is  in  force 
under  this  Act  and  includes  a  scheme  approved  under  any 
predecessor  of  this  Act.^*'  The  following  is  the  legislative  pro- 
vision for  bringing  a  plan  into  being: 

"5.  (1)  Where  the  Board  receives  from  a  group  of  pro- 
ducers in  Ontario  or  any  part  thereof  a  petition  or 
request  asking  that  a  plan  be  established  for  the 
control  and  regulation  of  the  marketing  of  a  farm 
product  or  any  class  or  part  thereof  and  the  Board 
is  of  the  opinion  that  the  group  of  producers  is 
representative  of  the  persons  engaged  in  the  pro- 
duction of  the  farm  product  or  class  or  part  thereof, 
the  Board  may  recommend  the  establishment  of 
such  plan  to  the  Minister."^^ 

"6.  (1)  Notwithstanding  section  5,  the  Lieutenant  Gov- 
ernor in  Council  may  make  regulations. 


"R.S.O.  I960,  c.  137,  s.  1(h)  as  re-enacted  by  Ont.  1962-63,  c.  45,  s.  1(4\ 
''Ibid.,  s.  5(1)  as  re-enacted  by  Ont.  1962-63,  c.  45,  s.  4. 


i:iiaf)lry  112  1705 

(a)  establishing,  amending  and  revoking  plans  for 
control  and  regulation  of  the  marketing  within 
Ontario  or  any  part  thereof  of  any  farm  prod- 
uct and  constituting  local  boards  to  administer 
such  plans. "^"^ 

When  a  grotip  of  producers  files  a  petition  with  the 
Board  asking  for  a  plan  to  be  established,  the  Board  must 
form  an  opinion  that  this  group  of  prodticers  is  representative 
of  the  persons  engaged  in  the  prodtiction  of  the  farm  product 
in  question.  If  the  Board  forms  this  opinion  it  may  recom- 
mend to  the  Minister  of  Agriculture  and  Food  the  establish- 
ment of  a  plan.  The  Minister  then  advises  the  Lieutenant 
Governor  in  Coiuicil  of  the  petition  and  the  Board's  opinion 
and  it  is  the  Lieutenant  Governor  in  Council  that  decides 
whether  or  not  a  regulation  should  be  passed  establishing  the 
plan. 

Prior  to  1963  the  legislation  made  provision  for  a  plebis- 
cite of  affected  producers  as  a  condition  precedent  to  the 
Board's  power  to  recommend  the  establishment  of  the  plan.^^ 
Since  1963  the  Board  has  conducted  informal  votes  prior  to 
recommending  the  establishment  of  a  plan,  although  not 
required  to  do  so  by  statute.  The  procedure  has  been  described 
to  us  as  follows: 

"The  Board  had  available  to  it  statistics  published  by  the 
Department  of  Agricidture  and  Food  from  which  a  reason- 
able approximation  of  the  total  number  of  producers  of  any 
given  farm  product  may  be  obtained.  The  Board  first  insists 
that,  as  a  general  rule,  it  will  not  consider  a  petition  unless 
the  number  of  names  on  the  petition  equals  15%  of  the 
known  total  number  of  producers.  Before  acting  on  a 
petition  the  Board  then  arranges  for  producers  in  the  Prov- 
ince to  express  their  opinion  secretly  by  means  of  a  ballot. 
The  Board  considers  that  2/3  of  the  total  number  of  persons 
who  ballot  expressing  themselves  as  being  in  favour  of  the 
petition  is  sufficient  to  establish  that  the  petitioners  are,  in 
fact,  representative  of  the  producers  as  a  whole. "*° 


"Vft/rf.,  s.  6(1)  (a). 

^"Ihid.,  s.  5,  repealed  bv  Ont.  1962-6.8,  c.  45,  s.  4. 

"Letter  from  the  Board,  December  18,  1967.  And  see  R.S.O.  1960,  c.  137. 
s.  8(1),  para.  25  as  enacted  by  Ont.  1962-6.S,  c.  45,  s.  6(10)  enablins;  the  Board 
to  make  regulations  "providing  for  the  holding  of  a  plebiscite  of  producers 
upon  a  question  of  favour  of  a  plan  or  amendment  of  a  plan  or  any  matter 
respecting  the  marketing  of  a  regulated  product". 


1766  The  Fanu  Products  Marketing  Board 

Existing  Plans 

The  plan  established  for  the  control  and  regulation  of 
the  marketing  within  Ontario  of  fresh  grapes  may  be  taken  as 
reasonably  typical  of  the  plans  made  under  the  Act.  It  was 
established  by  Ontario  Regulation  184/66  made  by  the  Lieu- 
tenant Governor  in  Council.  Under  this  regulation  the  On- 
tario Fresh  Grape  Growers'  Marketing  Board  was  constituted 
and  provision  made  for  the  method  of  electing  members  to 
this  Board.  The  Order  in  Council  passed  by  the  Lieutenant 
Governor  in  Council  provides  that  the  "plan  in  the  Schedule 
is  established  for  the  control  and  regulation  of  the  marketing 
within  Ontario  of  fresh  grapes"^^  but  it  makes  no  further  pro- 
vision for  regulating  and  controlling  the  marketing  of  fresh 
grapes.  One  must  go  to  Ontario  Regulation  191/66"*^  made 
by  the  Farm  Products  Marketing  Board  and  then  to  the 
General  Regulations^^  made  by  the  Ontario  Fresh  Grape 
Growers'  Marketing  Board,  a  local  board,  to  ascertain  the  law 
respecting  the  control  and  regulation  of  the  marketing  of 
fresh  grapes.  This  is  a  confusing  pattern  which  is  the  same 
with  respect  to  almost  all  regulated  products,  except  in  the 
case  of  two  or  three  where  the  relevant  local  boards  have 
passed  no  regulations. 

The  Act  expressly  states  that  the  marketing  plan,  which 
is  the  core  of  marketing  legislation  in  Ontario,  is  to  be  estab- 
lished by  the  Lieutenant  Governor  in  Council.  However,  as 
we  have  seen,  the  Lieutenant  Governor  in  Council  does  not, 
in  fact,  establish  a  plan  at  all.  The  Order  in  Council  authoriz- 
ing a  plan  contains  no  substantive  provisions  relating  to  the 
control  and  regulation  of  the  marketing  of  the  regulated  prod- 
uct. There  is  nothing  in  the  Order  in  Council  specifically 
delegating  the  power  to  control  and  regulate,  and  the  Act  does 
not  authorize  this  to  be  done.  The  main  powers  of  the  Farm 
Products  Marketing  Board  are  conferred  on  it  directly  under 
the  Act  (particularly  by  sections  4,  8  and  9).  The  result  is 
that  while  it  appears  that  the  Lieutenant  Governor  in  Council 
establishes  the  marketing  policies  of  the  plans,  these  policies 

"O.  Reg.  184/66,  s.  1. 

"As  amended  by  O.  Reg.  289/66. 

"July  9,  1969.  See  also  Regulation  No.  1-69,  September  5,  1969. 


Chapter  112  17G7 

are  in  fact  established  by  local  boards  composed,  lor  the  most 
part,  of  producers. 

This  scheme  of  the  legislation  has  been  reviewed  and  sus- 
tained by  the  Supreme  Court  of  Canada  with  Cartwright,  J., 
(as  he  then  was)  dissenting.  It  was  held  that  the  skeleton  plan 
is  a  plan  as  contemplated  by  the  Act.^^  Cartwright,  J.  refused 
to  strain  the  applicable  language  to  hold  that  the  scheme 
(plan)  there  in  (question  was  validly  authorized.    He  said: 

"To  come  within  the  definition  given  in  the  Act  the  'scheme' 
must  at  least  set  out  a  plan  for  the  marketing  or  for  the 
regulating  of  some  farm  product.  The  name  of  the  so-called 
scheme  suggests  that  it  is  a  plan  for  the  marketing  of  hogs 
but  it  contains  no  plan  for  marketing  at  all.  It  simply  pur- 
ports to  set  up  a  local  board  and  seven  committees  and  while 
it  prescribes  in  some  detail  the  inanner  in  which  the  mem- 
bers of  these  bodies  are  to  be  chosen,  nothing  is  said  as  to 
their  poAsers,  purposes  or  duties;  the  scheme  contains  no 
word  as  to  how  the  marketing  is  to  be  carried  out;  no  plan 
is  formulated.  In  my  opinion  it  cannot  be  said  to  be  a 
scheme. "^^ 

The  apparent  intention  of  the  Act  would  seem  to  have 
been  defeated  in  practice.  The  scheme  outlined  in  the  Act  is 
that  the  Lieutenant  Governor  in  Council,  who  is  responsible 
to  producers,  processors,  those  engaged  in  marketing  and  con- 
sumers alike,  should  authorize  a  real  plan  of  marketing 
control,  but  the  responsibility  has  been  delegated  to  a  subor- 
dinate authority  and  re-delegated  by  it  to  a  still  more  subor- 
dinate body  representative,  for  the  most  part,  of  producers. 

The  powers  given  to  the  Board  to  make  exemptions  from 
a  plan  are  wide,  confusing  and  inconsistent.  The  Board  is 
given  power  to  make  regulations  generally  or  with  respect  to 
any  regulated  product  providing  for  the  exemption  "from 
any  or  all  of  the  regulations,  orders  or  directions  under  any 
plan  of  any  class,  variety,  grade  or  size  of  regulated  product, 
or  any  person  or  class  of  persons  engaged  in  the  producing  or 
marketing  of  the  regulated  product  .  .  .".^^  This  is  an  extra- 
ordinary provision.  In  the  first  place,  no  regulations  are  made 
under  plans.  The  plans  only  provide  for  the  constitution  of  a 

**Reference  re  The  Farm  Products  Marketing  Act,  [1957]  S.C.R.  198. 

"/feirf.,  244. 

"R.S.O.  1960,  c.  137,  s.  8(1),  para.  9  as  re-enacted  by  Ont.  1962-63,  c.  45,  s.  6(3). 


1 768         The  Farm  Products  Marketing  Board 

board  and  the  method  of  electing  its  members.  In  the  second 
place,  this  provision  ostensibly  gives  the  Board  power  to 
repeal,  in  effect,  law  made  by  the  Lieutenant  Governor  in 
Council. 

The  Act  enables  the  Board  to  require  a  local  board  to 
furnish  information  or  particulars  of  "the  purposes  of  the  plan 
in  effect  for  the  marketing  of  the  regulated  product"^''  and  the 
Board  may  require  any  local  board  "to  furnish  to  the  Board 
particulars  of  any  proposed  change  in  the  purposes  of  the  plan 
at  least  ten  days  before  the  proposed  change  becomes  effec- 
tive".^^ If  plans  are  to  be  established  by  the  Lieutenant  Gov- 
ernor in  Council,  what  relevance  is  there  in  a  local  board's 
furnishing  to  the  Board  particulars  of  the  purposes  of  the  plan, 
and  what  right  does  the  local  board  have  to  make  any  changes 
in  the  purposes  of  a  plan?  On  the  face  of  the  Act,  one  would 
expect  the  Board  to  get  this  information  from  the  Lieutenant 
Governor  in  Council.  The  language  used  in  this  legislation  is 
not  only  inconsistent  and  confusing  but  it  is  difficult  to  inter- 
pret, when  it  should  be  simple  and  clear.  The  Act  is  largely 
administered  by  laymen  and  if  it  is  for  the  benefit  of  laymen, 
laymen  should  be  able  to  understand  it. 

Later  in  this  Chapter  we  recommend  that  all  Board  and 
local  board  regulations  be  subject  to  the  approval  of  the 
Lieutenant  Governor  in  Council.  If  this  recommendation  is 
adopted  then,  in  fact,  the  Lieutenant  Governor  in  Council 
will  be  responsible  for  the  content  of  the  real  plans  controlling 
and  regulating  the  marketing  within  Ontario  of  regulated 
farm  products  and  the  apparent  intention  of  the  existing  legis- 
lation will  be  carried  out.  If  this  is  done  the  existing  legisla- 
tion should  be  amended  to  indicate  that,  pursuant  to  section 
6,  the  function  of  the  Lieutenant  Governor  in  Council  is  to 
decide:  (1)  what  plans  shall  be  formulated  with  respect  to 
specified  products  and  (2)  what  the  constitution  of  the  local 
boards  and  method  of  electing  their  members  is  to  be.  Follow- 
ing this  it  would  remain  for  the  Lieutenant  Governor  in 
Council  to  approve,  or  refuse  to  approve,  plans  formulated 
by  the  Board,  or  the  local  boards. 

'Ubid.,  s.  9(3)  (f). 
'nbicl,  s.  9(5)  (a). 


C/iaj)U'}JJ2  1769 

SUBORDINATE  LEGISLATIVE  POWERS 

To  carry  out  the  scheme  of  the  Farm  Products  Marketing 
Act  three  bodies  are  empowered  to  enact  subordinate  legisla- 
tion: 

(1)  the  Lieutenant  Governor  in  Council; '" 

(2)  the  Farm  Products  Marketing  Board ;^"  and 

(3)  local  boards  exercising  powers  delegated  to  them  by  the 


Board. 


51 


Many  of  the  enabling  provisions  in  the  Act  are  too 
general  and  imprecise  to  be  proper  vehicles  for  conferring 
powders  on  other  bodies  to  make  law.  For  example,  section 
8(1),  paragraph  12,  enables  the  Board  to  make  regulations 
"providing  for  the  control  and  regulation  of  the  marketing  of 
any  regulated  product,  including  the  times  and  places  at 
which  the  regulated  products  may  be  marketed".  Under 
section  8(5)  this  power  may  be  delegated  to  a  local  board. 
This  provision,  in  fact,  enables  the  power  of  delegation  to  be 
exercised  without  laying  down  any  standards  or  guides  for  the 
local  board  in  making  laws  with  respect  to  any  matter  coming 
w^ithin  the  ambit  of  the  Act  and  affecting  w^ide  areas  of  the 
economic  life  of  the  Province. 

In  view  of  the  many  detailed  matters  concerning  which 
subordinate  legislation  may  be  enacted,  it  would  appear  that 
this  provision  is  unnecessary  and  is  inserted  solely  as  a  form 
of  blanket  authority  for  any  subordinate  legislation  intended 
to  be  passed  under  more  specific  provisions  but  w^hich  may 
not  in  fact  be  justifiable  under  them.  It  serves  to  shield  loose 
definition  of  policy  and  imprecise  draftsmanship.  The  powers 
conferred  under  paragraph  12  appear  to  ha\'e  been  exercised 
by  Regulation  147,°-  wherein  the  Farm  Products  Marketing 

*'Ibid.,  s.  6(1)  and  s.  12(3)  as  re-enacicd  bv  Out.  1964,  c.  31.  s.  1. 

^°lbid.,  s.  4(4),  as  amended  by  Ont.  1962-63,  c.  45,  s.  3;  s.  8(1),  as  amended  by 

Ont.  1961-62,  c.  41,  s.  2,  Ont.  1962-63,  c.  45,  s.  6((1)-(12)),  Ont.  1965,  c.  39, 

s.  3,  Ont.  1966,  c.  56,  s.   1,  Ont.   1968,  c.  40,  s.  3  and  Ont.   1968  69,  c.  37. 

s.  3((l)-(2));  s.  9(1)  as  amended  by  Ont.  1962-63.  c.  45.  s.  7((l)-(7)),  Ont.  1968, 

c.  40,  s.  4,  and  Ont.  1968-69,  c.  37,  s.  4(1-3);  and  s.  18(2)  as  enacted  bv  Ont. 

1962-63,  c.  45,  s.   11(2)  and  amended  by  Ont.   1965,  c.  39.  s.  5(1)  and  Ont. 

1966,  c.  56,  s.  2(2). 
"/6?rf.,  s.  8(5)  as  amended  by  Ont.   1962-63.  c.  45,  s.  6(14);   and  s.   18(4)  as 

enacted  by  Ont.  1962-63,  c.  45.  s.   11(4). 
"R.R.O.  1960,  Reg.  147,  s.  6(h)  as  remade  by  O.  Reg.  95/67,  s.  2(2). 


1770  The  Farm  Products  Marketing  Board 

Board  has  delegated  to  the  Ontario  Asparagus  Growers' 
Marketing  Board  "powers  to  make  regulations  in  respect  of 
asparagus  .  .  .  providing  for  the  control  and  regulation  of  the 
marketing  of  asparagus,  including  the  times  and  places  at 
which  asparagus  may  be  marketed  .  .  .".  A  provision  of  this 
broad  scope  in  the  regulation  would  appear  to  make  other 
provisions  of  a  more  specific  nature  superfluous.  Paragraph 
12  of  section  8(1)  should  be  repealed. 

The  powers  conferred  on  the  Board  to  make  regulations 
vesting  powers  in  local  boards  are  broader  in  scope  and  more 
comprehensive  than  powers  usually  conferred  on  the  Lieuten- 
ant Governor  in  Council.  "The  Board  may  make  regulations 
vesting  in  any  local  board  any  powers  that  the  Board  deems 
necessary  or  advisable  to  enable  such  local  board  effectively  to 
promote,  regulate  and  control  the  marketing  of  the  regulated 
product. "^^ 

The  Board  may  make  regulations  "authorizing  any  local 
board  to  prohibit  the  marketing  of  any  class,  variety,  grade  or 
size  of  any  regulated  product". ^^  The  sweeping  effect  of  this 
provision  could  render  unnecessary  the  licensing  and  quota- 
fixing  provisions  in  the  earlier  paragraphs  of  the  section  and 
some  of  the  provisions  of  section  18  respecting  tobacco. 

These  two  powers  enable  the  Board  to  vest  powers  in  the 
local  boards  which  are  not  subject  to  the  control  of  the  Lieu- 
tenant Governor  in  Council.  The  Board  under  the  first- 
quoted  provision  may  confer  on  local  boards  almost  unlim- 
ited powers  of  an  investigative,  adjudicative  and  legislative 
character.  Potentially,  the  section  in  question  confers  on 
the  Board  power  to  confer  on  local  boards  powers  that  the 
Act  does  not  even  confer  on  the  Board  itself.  It  is  not  a  power 
to  delegate  but  a  power  to  authorize  local  boards  to  perform  a 
whole  range  of  governmental  acts.  It  dwarfs  and  overlaps  any 
other  delegation  provision  in  the  Act.  It  should  be  repealed 
as  should  the  provision  enabling  regulations  to  be  made 
authorizing  local  boards  to  prohibit  marketing. 

The  Lieutenant  Governor  in  Council  is  given  power  to 
make  regulations,  "notwithstanding  any  other  Act",  provid- 

^^R.S.O.  1960,  c.  137,  s.  9(1)  as  amended  by  Ont.  1962-63,  c.  45,  s.  7(1). 
°^Ibid.,  s.  8(1),  para.  22  as  amended  by  Ont.  1962-63,  c.  45,  s.  6(9). 


Chapter  112         1771 

ing  ior  the  putting  ot  a  local  board  into  trusteeship"  and  the 
Lieutenant  Governor  in  Coinicil  may  make  regulations  "dis- 
solving a  local  board  on  such  terms  and  conditions  as  he 
deems  proper  and  providing  lor  the  disposition  ot  its  assets".'" 
These  provisions  enable  the  Lieutenant  Governor  in  Council 
to  enact  subordinate  legislation  in  conflict  with,  or  at  variance 
with,  the  express  terms  of  a  statute  of  the  Legislature.  We 
have  condemned  this  form  of  legislation."'" 

T.  hese  clauses  are  objectionable  on  another  ground.  They 
give  to  the  Board  a  legislative  power  to  deal  with  assets  of  a 
local  board  and  the  attairs  of  the  local  board  in  which  indi- 
viduals have  a  financial  interest.  If  a  local  board  is  to  be 
wound  up  and  its  assets  distributed,  this  should  be  done  by 
some  method  of  adjudication  which  would  give  to  those  who 
have  any  specific  interest  in  the  winding  up,  a  legal  right  to  be 
heard  and  to  present  their  case  to  the  Board.  The  Board 
should  deal  with  such  matters  in  an  adjudicative  capacity,  not 
in  a  legislative  capacity.  In  such  case  the  safeguards  of  the 
proposed  Statutory  Powers  Procedure  Act  recommended  in 
Report  Number  1  would  apply. ^"^ 

The  powers  with  which  we  have  been  just  dealing  are  of 
an  expropriatory  nature.  Their  exercise,  whether  in  their 
present  form  or  in  the  form  of  a  power  of  adjudication,  as 
we  recommend,  should  be  dependent  on  the  satisfaction  of 
definite  and  objective  conditions  precedent.  For  example,  the 
powers  should  only  be  exerciseable  for  some  definite  reason, 
such  as  the  financial  mismanagenient  of  the  affairs  of  the  local 
board  in  question. 

Sub-Delegated  Subordinate  Legislation 

As  we  have  indicated,  the  Farm  Products  Marketing 
Board  has  the  power  to  sub-delegate  to  the  local  boards  virtu- 
ally all  of  its  legislative  power.  Regulations  made  by  the  local 
boards  pursuant  to  this  sub-delegated  power  are  subject  to 
none  of  the  usual  safeguards  governing  the  exercise  of  powers 
to  enact  subordinate  legislation.   Local  board  regulations  are 

''Ibid.,  s.  6(1)  (f)  as  re-enacted  by  Ont.  1962-63,  c.  45,  s.  5(3). 
'"Ibid.,  s.  6(1)  (g). 
"See  p.  343  {}.  supra. 
"See  pp.  212-13  supra. 


1772  The  Farm  Products  Marketing  Board 

not  required  to  be  filed  with  the  Registrar  of  Regulations 
under  the  Regulations  Act  nor  is  there  any  obligation  im- 
posed to  publish  them  in  the  Ontario  Gazette  in  accordance 
with  the  provisions  of  that  Act.   This  is  highly  objectionable. 

Although  the  Farm  Products  Marketing  Act  empowers 
the  Board  to  revoke  any  regulation  made  by  a  local  board^^ 
there  is  no  provision  in  the  Act  requiring  a  local  board  to  file 
with  the  Board  (the  body  which  has  expressly  empowered  the 
local  board  to  make  regulations)  any  of  the  regulations  it 
makes.  Section  4(4)  of  the  Act  enables  the  Board  to  make 
regulations  providing  for  the  filing  by  the  local  board  of  true 
copies  of  several  types  of  local  board  documents  with  the 
Board,  but  none  of  these  are  local  board  regulations. '*''  How- 
ever, Ontario  Regulation  98/67,  section  2,  which  was  made 
pursuant  to  section  4(4),  requires  a  local  board  to  file  direc- 
tions, orders  and  regulations  with  the  Board  within  5  days  of 
their  issuance  or  making.  There  would  appear  to  be  no 
express  legislative  authority  for  this  provision. 

The  Board  has  advised  us  that  it  does  not  have  in  its 
possession  all  of  the  regulations  passed  by  the  local  boards  but 
it  considers  that  it  has  "the  important"  ones. 

As  the  legislation  now  stands  the  members  of  the  Legis- 
lature w^hich  has  enabled  these  legislative  powers  to  be  exer- 
cised by  local  boards  have  no  prescribed  method  of  advising 
themselves  as  to  the  form  or  content  of  such  subordinate 
legislation.  A  member  of  the  Legislature,  as  any  other  person, 
can  find  in  the  Ontario  Gazette  all  regulations  filed  under  the 
Regulations  Act  but  he  cannot  find  local  board  regulations 
whether  or  not  they  are  filed  with  the  Board.  Most  of  the  law 
which  directly  applies  to  persons  engaged  in  marketing  farm 
products  is  made  by  the  local  boards  and  not  by  the  Legis- 
lature, the  Lieutenant  Governor  in  Council  or  the  Board. 
This  fact  underlines  the  significant  deficiency  in  the  present 
legal  requirements  respecting  publication  of  subordinate 
legislation. 

^-R.S.O.  1960,  c.  137,  s.  10(b)  as  re-enacted  by  Ont.  1962-63,  c.  45,  s.  8. 
""/fotrf.,  s.  4(4)  (a)  as  re-enacted  by  Ont.  1962-63,  c.  45,  s.  3(3). 


C/iuljUnIJ2  177:') 

It  is  ironic  that  local  boards  created  under  the  Farm 
Products  Marketing  Act  may  be  required  to  publish  in  the 
Canada  Gazette^^  the  laws  which  they  make  pursuant  to  the 
Agricultural  Products  Marketing  Act  (Canada),"-  but  not 
those  made  under  Ontario  law. 

Further,  what  guarantee  is  there  of,  or  method  tor  deter- 
mining, the  authenticity  ot  a  document  being  put  forward 
allegedly  as  a  valid  Ontario  regulation  passed  by  a  local  board? 
There  is  such  a  guarantee  or  method  with  respect  to  statutes*^^ 
and  most  regulations"^  but  none  with  regard  to  local  board 
regulations.  1  his  is  just  another  unsatisfactory  aspect  Howing 
from  the  power  to  sub-delegate. 

Local  board  regulations  should  be  subject  to  the  recjuire- 
ments  of  the  Regulations  Act.*^^ 

It  is  essential  that  the  form  and  content  of  marketing  laws 
should  be  subject  to  political  control.  We  therefore  recom- 
mend that  both  Board  regulations  and  local  board  regulations 
should  not  come  into  force  until  approved  by  the  Lieutenant 
Governor  in  Council.  The  adoption  of  this  recommendation 
will  substantially  meet  the  objections  and  criticisms  which  we 
have  made  with  respect  to  the  power  of  sub-delegation.'^'^ 

It  has  been  suggested  to  us  that  one  of  the  reasons  for 
conferring  power,  particularly  in  the  Farm  Products  Market- 
ing Act,  to  make  subordinate  legislation  (and  further  sub- 
ordinate legislation  pursuant  to  it)  is  to  enable  legislation  to 
be  passed  quickly  and  in  response  to  immediate  needs.  Our 
review  of  the  subordinate  legislation  in  the  marketing  field 
indicates  to  us  that  it  is  passed,  generally,  on  a  seasonal  basis 
and  that  no  delays  of  any  signihcant  nature  would  result  from 
the  requirement  that  Board  and  local  board  regulations  be 

"See  Regulations  Act,  R.S.C.  1952,  c.  235,  s.  2. 

"'R.S.C.  1952,  c.  6.  See  the  Regulations  Act,  R.S.C.  1952,  c.  235,  s.  2(a)  (ii) 

and  s.  6. 
""Statutes  Act,  R.S.O.  1960,  c.  383,  ss.  6  and  7. 
"'Regulations  Act,  R.S.O.  1960,  c.  349,  s.  2. 
"^See  p.  366  supra. 
""See  pp.  358-60  supra. 


1774  rhe  Farm  Products  Marketing  Board 

subject    to    the    approval    of    the    Lieutenant    Governor    in 
Council. ^^ 


LICENSING  POWERS 

The  Board  has  power  to  license  all  persons  engaged  in  all 
processes  through  which  regulated  farm  products  pass  from 
producer  to  consumer. 

"8.    (1)    The  board  may  make  regulations  generally  or  with 
respect  to  any  regulated  product, 

1.  providing  for  the  licensing  of  any  or  all 
persons  before  commencing  or  continuing  to 
engage  in  the  producing,  marketing  or  processing 
of  a  regulated  product; 

2.  prohibiting  persons  from  engaging  in  the  pro- 
ducing, marketing  or  processing  of  any  regulated 
product  except  under  the  authority  of  a  licence; 

3.  providing  for  the  refusal  to  grant  a  licence 
where  the  applicant  is  not  qualified  by  experi- 
ence, financial  responsibility  and  equipment  to 
engage  in  properly  the  business  for  which  the 
application  was  made,  or  for  any  other  reason 
that  the  Board  deems  proper; 

4.  providing  for  the  suspension  or  revocation  of, 
or  the  refusal  to  renew,  a  licence  for  failure  to 
observe,  perform  or  carry  out  the  provisions  of 
this  Act,  the  regulations,  any  plan  or  any  order  or 
direction  of  the  Board  or  local  board  or  market- 
ing agency . . . 


*^The  recommendations  which  we  have  made  are  consonant  with  those  made 
in  previous  studies  of  the  subject.  See,  for  example,  the  Report  of  the  Gordon 
Committee  on  the  Organization  of  Government  in  Ontario,  (1959)  61:  "The 
power  of  the  Farm  Products  Marketing  Board  to  delegate  extremely  broad 
legislative  powers  to  local  boards  and  marketing  agencies  is  in  its  discretion 
and  not  subject  to  the  approval  of  the  Lieutenant  Governor  in  Council,  as 
we  believe  it  should  be."  The  Report  of  the  Agricultural  Marketing  Enquiry 
Committee  of  Ontario,  (June,  1961)  38:  "Governments  have  tlie  responsi- 
bility of  continuous  scrutiny,  in  the  public  interest,  of  tlie  actions  of  any 
group  to  whom  special  powers  have  been  delegated  or  otherwise  acquired. 
This  is  the  principle  of  goverrnnental  responsibility  for  delegated  powers". 
And  at  p.  84:  "Even  if  these  income-raising  and  stabiHzing  efforts  produced 
benefits  for  farmers,  the  justification  for  the  Legislature  delegating  such 
powers  must  be  judged,  in  the  final  analysis,  in  terms  of  their  effects  upon 
the  welfare  of  all  interested  parties,  including  the  general  public's  interest 
in  efficient  production  and  marketing." 


Chapter  112         1775 

(5)  The  Board  may  delegate  to  a  local  board  such  of  its 
powers  under  subsection  1  as  it  deems  necessary,  and 
may  at  any  time  terminate  such  delegation. "^^ 

Several  licensing  regulations  have  been  passed  under  these 
provisions  and  in  many  cases  the  Board  has  sub-delegated  to 
local  boards  its  powers  to  make  licensing  regulations  and  these 
powers  have  been  exercised  by  local  boards. 

In  Report  Number  1  we  recommended  that  in  the  pro- 
vincial sphere  where  detailed  licensing  regulations  are  re- 
quired they  should  be  enacted  by  the  Lieutenant  Governor  in 
Council. ^^  If  the  regulations  made  by  the  Board  and  local 
boards  were  subject  to  the  appro\al  of  the  Lieutenant  Gover- 
nor in  Council,  as  we  have  recommended,  political  control 
over  the  form  and  content  of  the  regulations  would  be  pre- 
served and,  at  the  same  time,  the  Board  and  the  local  boards, 
that  have  special  knowledge  and  expertise  in  the  relevant 
fields,  would  be  empowered  to  initiate  the  applicable  licensing 
policies. 

In  Chapter  75  we  said  that  licensing  requirements  should 
not  be  imposed  unnecessarily,  nor  should  unreasonable  stand- 
ards be  required  in  their  implementation."'' 

Regulations  passed  under  section  8  show^  that  wdde  use 
has  been  made  of  the  licensing  powers  conferred  under  this 
section.  All  producers  and  many  persons  engaged  in  market- 
ing and  processing  are  required  to  obtain  licences  from  the 
Board  or  local  boards.  One  of  the  chief  purposes  of  the  licens- 
ing requirement  appears  to  be  the  obtaining  of  revenue  in  the 
form  of  licence  fees.  We  do  not  gather  from  this  widespread 
use  of  licensing  powers  that  they  are  being  unnecessarily  im- 
posed. However,  the  pro\'isions  in  paragraph  3  of  section 
8(1)  may  not  be  as  relevant  to  the  right  of  a  man  to  produce  a 
farm  product— as  to  his  right  to  market  or  process  a  product. 
The  enabling  legislation  respecting  the  grounds  for  refusing 
a  licence  to  a  producer  (if  any  such  grounds  exist)  should  be 
set  out  in  the  statute  and  distinct  from  the  grounds  for  refus- 
ing licences  to  those  engaged  in  marketing  and  processing, 

•'R.S.O.  1960,  c.  137,  s.  8(1),  paras.  1-4  and  s.  8(5)  as  amended  by  Ont.  1962-63. 
c.  45,  s.  6(14). 
"p.  \117  supra. 
"p.  1096  supra. 


1776  TJie  Farm  Products  Marketing  Board 

Limitation  of  Number  of  Licences 

We  have  recommended  that  the  power  to  limit  the 
number  of  licences  to  be  issued  in  a  particular  field  should  be 
conferred  only  when  accompanied  by  adequate  safeguards  for 
the  rights  of  the  individual.'^  In  the  Farm  Products  Market- 
ing Act  with  the  exception  of  tobacco  there  appears  to  be  no 
intention  to  confer  the  power  to  refuse  a  licence  to  produce  on 
the  ground  of  a  numerical  limitation  and  a  decision  based  on 
such  a  groinid  would  be  invalid.'-  In  Chapter  75  we  discussed 
the  applicable  licensing  legislation  in  the  Brampton  Jersey  case 
(which  is  virtually  identical  to  section  8(1)  paragraph  3)  and 
observed  that  the  provision  would  be  better  if  it  did  not  in- 
clude the  words  "or  for  any  other  reason  the  Board  may  deem 
sufficient"  notwithstanding  that  these  words  would  be  read  by 
a  court  as  being  controlled  by  the  preceding  provisions  setting 
out  specific  grounds  for  refusing  a  licence.'^  They  are  mis- 
leading. This  obsen'ation  is  equally  applicable  to  section  8(1) 
paragraph  3.  "We  recommend  that  these  words  be  deleted 
from  the  section.  They  only  mislead  the  reader.  If  the  Legis- 
lature, in  conferring  the  po^ver  to  make  regulations,  contem- 
plated additional  grounds  to  those  provided  in  the  first  part 
of  paragraph  3  then  it  should  have  added  them  expressly  and 
not  used  general  language. 

More  objectionable  than  the  provision  ^ve  have  just  been 
discussing  is  section  18(2)  (a): 

"The  Board  may  make  regulations, 

(a)  notwithstanding  paragraph  3  of  subsection  1  of  section 
8,  providing  for  the  refusal  to  grant  a  licence  for  the 
producing  of  tobacco  for  any  reason  that  the  Board 
deems  proper;'"''^ 

In  a  recent  judgment  this  language  was  interpreted  as 
follows: 

'The  1963  amendments  to  the  Act  make  it  clear  that  it  was 
the  intention  of  the  Legislature  to  confer  an  unrestricted 
discretion  on  the  local  board  to  grant  or  refuse  licences  to 
produce  tobacco  .  .  .  There  are  no  limits  in  the  Act  to  the 


^p.  \\(i%  supra. 

'Brampton  Jersey  Enterprises  Limited  v.  The  Milk  Control  Board  of  Ontario, 
[1956]  O.R.  1  (C.A.). 
'p.  WOO  supra. 
*R.S.O.  1960,  c.  137,  s.  18(2)  (a)  as  enacted  by  Ont.  1962-63,  c.  45.  s.  11. 


Chapter  112  Mil 

discrelion  granted  to  the  Buaid  and  ilicre  is  nothing  therein 
requiring  the  Board  to  set  up  standards."" 

A  consideration  ol  the  other  provisions  in  section  18 
makes  it  clear  that  this  provision  is  part  of  a  scheme  to  curtail 
the  production  of  tobacco  so  that  it  will  conform  to  the  de- 
mand for  the  product.  In  other  words,  the  wide  language  is 
specifically  designed  to  confer  a  power  on  the  licensing 
tribunal  to  refuse  licences  on  the  grounds  that  sufficient  or 
enough  ha\'e  already  been  issued.  This  legislation  is  contrary 
to  basic  principles  which  we  have  outlined.'*^  To  be  able  to 
refuse  a  licence  "for  any  reason  that  Board  deems  proper" 
cotild  conceivably  be  to  confer  the  power  to  refuse  licences  on 
grounds  unrelated  to  the  basic  policy  of  the  legislation.  We 
recommend  that  these  words  be  repealed  and  that  in  their 
place  language  importing  some  identifiable  standards  as  specific 
as  possible,  be  inserted.  The  use  of  broad  words  of  this  char- 
acter represents  a  surrender  of  the  rule  of  law  to  the  rule  of 
arbitrary  power.  We  asked  the  Board  what  tfie  need  for  this 
particular  language  w'as.  The  reply  we  received  was  "this 
power,  like  other  special  powers  relating  to  tobacco,  is  neces- 
sai'y  to  cope  with  the  special  problems  encountered  in  the 
tobacco  industry".^'  Any  arbitrary  power  could  be  supported 
on  this  basis.  The  Legislature  is  surely  not  so  barren  of 
ability  to  express  itself  as  not  to  be  able  to  define  in  express 
terms  what  powers  should  be  exercised  by  a  tribunal  created 
by  it  for  the  purpose  of  regulating  the  production  and  sale  of 
an  important  agricultural  product. 

What  we  have  said  with  respect  to  section  18(2)  (a)  applies 
with  equal  force  to  other  provisions  in  the  Act  giving  the 
Board  special  powers.  For  example,  the  Board  may  make 
regulations  generally  or  in  respect  to  any  regulated  product 
providing  for, 

"(i)    the  marketing  of  a  regulated  product  on  a  quota  basis, 
(ii)  the   fixing  and  allotting  to   persons  of  quotas   for   the 
marketing  of  a  regulated  product  on  such  basis  as  the  Board 
deems  proper, 

''^Robbins  et  al  v.  Ontario  Flue-Cured  Tobacco  Growers'  Marketing  Board, 
[1964]  1  O.R.  56,  66-67,  affirmed  p.  653,  affirmed  [1965]  S.C.R.  431.  Italics 
added. 

'"pp.  1096-1100  57/jbra. 

"Letter,  December  18,  1967. 


1778         The  Farm  Products  Marketing  Board 

(iii)  the  refusing  to  fix  and  allot  to  any  person  a  quota  for 
the  marketing  of  a  regulated  product  jor  any  reason  that  the 
Board  deems  proper,  and 

(iv)  the  cancelling  or  reducing  of,  or  the  refusing  to  increase, 
a  quota  fixed  and  allotted  to  any  person  for  the  marketing 
of  a  regulated  product  jor  any  reason  that  the  Board  deems 
proper." '^^ 

Licensing  Procedure 

The  recommendations  which  we  have  made  in  Chapter 
76  with  respect  to  the  procedure  to  govern  licensing  applica- 
tions and  other  licensing  proceedings  should  apply  to  all 
licensing  under  the  Farm  Products  Marketing  Act  and  its  sub- 
ordinate legislation.  Amendments  should  be  made  where  neces- 
sary to  implement  these  recommendations.  We  emphasize 
that  no  licence  should  be  refused  without  a  hearing  which 
should  comply  with  the  proposed  Statutory  Powers  Procedure 
Act;  provision  should  be  made  for  notice  of  intention  to  re- 
voke or  suspend  a  licence;  the  notice  should  set  forth  the 
grounds  on  which  it  is  alleged  the  licence  should  be  revoked 
or  suspended;  where  possible,  it  should  be  accompanied  by  a 
summary  of  evidence  which  is  proposed  to  be  submitted  to  the 
tribunal;  and  there  should  be  a  provision  giving  the  licensee 
an  opportunity  to  show  compliance  with  all  lawful  require- 
ments in  order  to  avoid  proceedings  for  revocation  or  suspen- 
sion of  the  licence. '^^ 

Prior  to  its  repeal  in  1965^'^  paragraph  5  of  section  8(1)  of 
the  Act  empowered  the  Board  to  make  regulations  "providing 
for  the  right  of  any  person  whose  licence  was  refused,  sus- 
pended or  revoked  or  was  not  renewed  to  show  cause  why 
such  licence  should  not  be  refused,  suspended  or  revoked  or 
why  such  renewal  should  not  be  refused,  as  the  case  may  be."^^ 
This  provision  was  repealed  when  the  general  appeal  section 
in  the  Act,  section  10a,  was  enacted. ^^  Notwithstanding  its 
repeal  there  is  still  at  least  one  regulation  enacted  under 
section  8  which  contains  provisions  employing  precisely  the 

"R.S.O.  1960,  c.  137,  s.  8(1),  para.  11a  as  enacted  by  Ont.  1962-63,  c.  45,  s.  6(4) 
and  amended  by  Ont.  1966,  c.  56,  s.  1(1).  See  also  s.  18(2)  (b).  Italics  added. 
"See  pp.  1120-22  supra. 
""Ont.  1965,  c.  39,  s.  3(1). 
"'R.S.O.  1960,  c.  137,  s.  8(1),  para.  5. 
«=Ont.  1965,  c.  39,  s.  4. 


ChnfUn  112  1770 

same  language.®'  This  regulation  is  probably  invalid  but 
apart  from  any  issue  as  to  its  validity,  provisions  placing  the 
onus  on  applicants  and  licensees  to  show  cause  "why  such 
licence  should  not  be  refused,  suspended  or  revoked  or  why 
such  renewal  should  not  be  refused"  are  contrary  to  funda- 
mental principles  of  just  procedure.®^  In  addition,  the  pro- 
vision is  illogical  especially  where  the  licence  has  been  sus- 
pended or  revoked.  If  a  licence  has  been  suspended  or  re- 
voked this  is  an  accomplished  fact.  A  decision  has  been  made 
and  if  relief  is  to  be  granted  it  should  be  in  the  form  of  a  right 
of  appeal.  A  right  of  appeal  before  a  body  that  has  made  a 
decision,  to  show  cause  why  its  decision  is  not  right,  is  an 
empty  and  meaningless  procedure. 

The  provisions  of  section  10a,  with  which  we  shall  deal 
more  fully  later,  giving  certain  rights  of  appeal,  may  be  re- 
garded by  some  as  a  substitute  for  a  proper  procedure  before 
an  initial  decision  is  made.  The  section  enables  a  person  who 
deems  himself  aggrieved  by  an  order  or  direction  or  decision 
of  a  local  board  to  appeal  to  the  local  board  and  on  such 
appeal  "the  person  making  the  appeal  has  the  right  to  attend 
and  make  representations".®^  This  so-called  appeal  procedure 
is  an  inadequate  substitute  for  a  proper  procedure  governing 
the  first  decision.  Under  this  process  a  person  may  lose  a 
licence  through  a  defective  procedure  and  then  be  cast  in  the 
role  of  an  appellant  in  an  effort  to  get  his  licence  back,  with 
the  onus  cast  on  him  of  showing  that  the  original  decision  was 
wrong. 

Licence  Fees 

The  Act  implies  that  it  is  possible,  in  the  absence  of  a 
regulation  to  the  contrary,  that  licence  fees  could  be  used  for 
purposes  not  related  to  the  paying  of  the  expenses  of  a  local 
board,  the  carrying  out  and  enforcing  of  the  Act  and  the  regu- 
lations or  the  carrying  out  of  the  purposes  of  the  plan  under 
which  the  board  is  established.  Section  8(1)  paragraph  13, 
enables  the  Board  to  make  regulations  "authorizing  a  local 

'"Regulation  151.  s.  5(3)  R.R.O.  1960  (Berries). 

*^See  pp.  1123-24  supra. 

"R.S.O.  1960,  c.  137,  s.  10a(7)  as  enacted  bv  Ont.  1965,  c.  39,  s.  4. 


1780  The  Farm  Froducis  Marketing  Board 

board  to  use  any  class  of  licence  fees"  for  these  purposes. ^^  We 
have  recommended  that  where  the  power  to  charge  fees  to  be 
fixed  by  regulation  is  conferred  the  purpose  for  which  the  fees 
are  to  be  charged  should  be  clearly  expressed.^'  This  recom- 
mendation should  be  implemented  in  the  Farm  Products 
Marketing  Act. 

Certificates  of  Appointment 

Another  sort  of  licensing  scheme  has  been  provided 
under  regulations  passed  by  at  least  one  local  board,  applying 
to  shippers  of  a  farm  product. 

The  General  Regulations,  1970  of  the  Ontario  Green- 
house Vegetable  Producers'  Marketing  Board  made  on  Feb- 
ruary 7th,  1970  provide  for  the  issue  of  certificates  of  appoint- 
ment to  "shippers".  By  section  l(k)  of  this  Regulation 
"shipper"  is  defined  as  "any  person  who  offers  for  sale,  sells, 
receives,  assembles,  packs,  ships  for  sale,  or  transports  green- 
house vegetables  but  does  not  include: 

(1)  a  ser\'ant  employed  by  and  driving  a  vehicle  owned  by 
a  producer  or  an  appointed  shipper; 

(2)  a  railway  company; 

(3)  a    person    who    transports    greenhouse    vegetables    by 
motor  transport  as  agent  of  the  producer." 

This  Regulation  provides,  in  part,  as  follows: 

"4.  (1)  No  person  shall  commence  or  continue  to  engage 
as  a  shipper  except  under  the  authority  of  a  certifi- 
cate of  appointment  as  a  shipper  from  the  local 
board. 

(2)  No  certificate  of  appointment  as  a  shipper  shall  be 
issued  except  upon  execution  of  a  shipper  agree- 
ment on  Form  1 . 

(3)  A  certificate  of  appointment  as  a  shipper  shall  be 
on  Form  2. 

(4)  A  certificate  of  appointment  as  a  shipper  expires  on 
the  31st  day  of  December  1970,  or  upon  the  cancel- 
lation of  the  agreement  mentioned  in  subsection 
(2)  whichever  is  earlier. "^^ 

^'Ibid.,  s.  8(1)  para.  13  as  amended  by  Ont.  1968-69,  c.  37,  s.  3(1).  See  also 

s.  12(3)  (f)  as  re-enacted  by  Ont.  1964,  c.  31,  s.  1. 
"See  p.  353  supra. 
'*The  Ontario  Greenhouse  \'egetable  Producers'   Marketing  Board   General 

Regulations,  1970,  s.  4.  Italics  added. 


Chapter  112  1781 

The  issue  ot  the  certificate  of  appointment  is  conditioned 
on  tiie  applicants  signing  a  written  agreement  with  the  local 
board  containing  the  following,  among  other  clauses: 

"The  sliipper  agrees  to  comply  with  the  General  Regulations 
(1970)  and  General  Interprovincial  and  Export  Regulations 
(1970)  ot  the  local  board  and  with  all  other  regulations  and 
orders  relating  to  the  marketing  of  Greenhouse  Vegetables 
as  may  be  made  by  the  local  board.  General  Regulations 
(1970)  and  General  Interprovincial  and  Export  Regulations 
(1970)  are  attached  hereto  as  Schedules  A  and  B."**^ 
'This  agreement  may  be  cancelled  by  either  party  hereto 
giving  the  other  party  not  less  than  72  hours  notice  of  cancel- 
lation. In  the  event  of  the  local  board  giving  the  shipper 
notice  of  cancellation  of  this  agreement,  the  local  board  will 
in  its  notice  appoint  a  place  and  time  prior  to  the  expiration 
of  the  notice  of  cancellation  at  which  the  shipper  may  appear 
before  the  local  board  to  request  that  such  notice  of  cancel- 
lation be  rescinded.  If  the  shipper  fails  to  attend  such  meet- 
ing of  the  local  board  or  if  the  local  board,  after  hearing 
such  request  refuses  to  rescind  the  notice  of  cancellation,  this 
agreement  from  the  time  of  expiration  of  such  notice  shall 
be  cancelled  and  at  an  end.  It  is  understood  and  agreed  that 
the  local  board  has  absolute  discretion  to  refuse  to  rescind  its 
notice  of  cancellation  and  such  discretion  shall  not  be  subject 
to  review  by  any  court. "^'^ 

The  local  board  may  cancel  the  agreement  entered  into 
by  merely  giving  notice.  According  to  the  language  of  the 
agreement,  the  only  recourse  the  shipper  has  is  a  right  to 
appear  before  the  local  board  "to  request  that  such  notice  of 
cancellation  be  rescinded."  He  must  appear  at  a  time  and 
place  fixed  in  the  notice  of  cancellation.  The  right  to  appear 
does  not  give  the  shipper  any  real  safeguard  against  arbitrary 
action  because  the  agreement  contains  the  provision  that  "it 
is  understood  and  agreed  that  the  local  board  has  absolute 
discretion  to  refuse  to  rescind  its  notice  of  cancellation  and 
such  discretion  shall  not  be  subject  to  review  by  any  court." 

The  local  board  has  clothed  itself  with  arbitrai7  pow'er, 
said  not  to  be  reviewable  by  any  court,  by  merely  forbidding 
shippers  to  engage  in  the  occupation  of  shipping  greenhouse 
vegetables   unless   they   agree   to  submit   to   the   exercise   of 

""Ibid.,  para.  2. 
""Ibid.,  para.  7. 


1782         The  Farm  Products  Marketing  Board 

such  power.  This  legislation  should  not  commend  itself  to 
freedom-loving  people;  it  is  a  weapon,  not  a  shield. 

What  has  been  done  here  is  to  establish  under  the  guise 
of  an  agreement  a  scheme  for  control  over  those  wishing  to 
ship  greenhouse  vegetables.  The  agreement  is  not  a  voluntary 
one  between  consenting  parties.  It  has  been  made  unlawful 
for  a  shipper  to  operate  unless  he  has  been  granted  a  certificate 
of  appointment,  and  no  person  shall  receive  a  certificate  of 
appointment  unless  he  signs  the  agreement.  The  fact  of  the 
matter  is  that  the  terms  of  this  agreement  are  a  part  of  a 
licensing  scheme  which  attempts  to  give  to  the  local  board  an 
arbitrary  power  over  means  of  earning  a  livelihood.  We  have 
condemned  privative  clauses  in  statutes  passed  by  the  Legis- 
lature,'^^ It  requires  no  emphasis  that  privative  clauses  con- 
tained in  regulations  passed  by  sub-subordinate  bodies  should 
never  be  permitted  to  become  law.  In  fact,  it  is  hard  to  find 
authority  in  the  Farm  Products  Marketing  Act  for  regulations 
giving  local  boards  the  power  purportedly  here  exercised. ^- 

The  General  Regulations,  1970  of  the  Ontario  Green- 
house Vegetable  Producers'  Marketing  Board,  made  on  Feb- 
ruary 7,  1970,  should  be  amended  to  conform  to  this  Report 
and  Report  Number  1. 

APPEALS 

"10(a).  (1)  Where  any  person  deems  himself  aggrieved  by 
any  order,  direction  or  decision  of  a  local 
board,  he  may  appeal  to  the  local  board  by 
serving  upon  the  local  board  written  notice  of 
the  appeal. 

(2)     Where  any  person  deems  himself  aggrieved  by, 

(a)  any  decision  of  a  local  board  on  an  appeal 
under  subsection  1;  or 

(b)  any  order,  direction  or  regulation  made 
by  the  Board 

he  may  appeal  to  the  Board  by  serving  upon 
the  Board  written  notice  of  the  appeal. 


^pp.  277-79  supra. 

^In  earlier  local  board  regulations  provisions  of  this  type  were  more  common. 
See,  e.g.,  General  Regulations  of  the  Fresh  Fruit  Growers  Marketing  Board, 
July  11,  1966  and  of  the  Ontario  Fresh  Grape  Growers  Marketing  Board, 
August  10,  1966. 


Chapter  112         178.'5 

(3)  Every  notice  under  subsection  1  or  2  shall 
contain  a  statement  of  the  matter  being 
appealed  and  the  name  and  address  of  the 
person  making  the  appeal. 

(4)  Upon  receipt  of  a  notice  under  clause  a  of 
subsection  2,  the  Board  shall  forthwith  notify 
the  local  board,  and  the  local  board  shall 
thereupon  forthwith  provide  the  Board  with 
all  relevant  by-laws,  orders,  directions,  regula- 
tions, documents  and  other  material,  of  any 
kind  whatsoever,  in  its  possession. 

(r))  In  any  appeal  under  subsection  I  or  2,  the 
Board  or  the  local  board,  as  the  case  may  be, 
shall,  within  seven  days  after  the  notice 
referred  to  in  subsection  1  or  2  is  received, 
serve  notice  upon  the  person  making  the 
appeal  of  the  date,  time  and  place  at  which  the 
appeal  will  be  heard. 

(6)  The  Board  or  the  local  board,  as  the  case  may 
be,  shall  hear  and  decide  any  appeal  under 
subsection  1  or  2,  within  thirty  days  after  the 
notice  of  appeal  is  received,  but  the  Board  or 
local  board  may,  at  the  request  of  the  person 
makmg  the  appeal,  adjourn  the  hearing  from 
time  to  time  for  such  period  or  periods  of  time 
as  the  Board  or  the  local  board  deems  just. 

(7)  At  any  hearing  under  this  section,  the  person 
making  the  appeal  has  the  right  to  attend  and 
make  representations  and  to  adduce  evidence 
respecting  the  appeal  either  by  himself  or 
through  counsel. 

(8)  At  any  hearing  of  an  appeal  under  clause  a  of 
subsection  2,  the  local  board  has  the  right  to 
attend  and  make  representations  and  to  adduce 
evidence  respecting  the  appeal  either  by  its 
officers,  or  any  of  them,  or  through  counsel. 

(9)  Upon  an  appeal  to  the  Board  under  clause  a  of 
subsection  2,  the  Board  may,  by  order,  direct 
the  local  board  to  take  such  action  as  the  local 
board  is  authorized  to  take  under  this  Act  and 
as  the  Board  deems  proper,  and  for  this  pur- 
pose the  Board  may  substitute  its  opinion  for 
that  of  the  local  board. 

(10)  The  Board  or  the  local  board,  as  the  case  may 
be,  shall,  within  ten  days  after  the  hearing  is 


1 784         The  Farm  Products  Marketing  Board 

completed,  serve  notice  upon  the  person  mak- 
ing the  appeal  of  its  decision. 

(11)  A  proceeding  that  is  in  substantial  compliance 
with  this  section  is  not  open  to  objection  on 
the  ground  that  it  is  not  in  strict  compliance 
therewith. 

(12)  Where  a  notice  is  served  under  this  section,  it 
may  be  served  personally  or, 

(a)  where  the  notice  is  served  on  the  Board  or 
a  local  board,  by  mailing  the  notice  to  the 
address  of  the  Board  or  of  the  local  board, 
as  the  case  may  be,  at  its  usual  business 
address;  or 

(b)  where  the  notice  is  served  on  a  person 
making  an  appeal,  by  mailing  the  notice 
to  the  address  shown  in  his  notice  of 
appeal. 

(13)  After  the  Board  or  a  local  board  has  decided 
an  appeal  under  this  section,  the  Board  or 
local  board  may  reopen  the  hearing  on  its  own 
motion  and  make  a  new  decision,  and  the 
procedure  for  an  appeal  under  this  section 
applies  to  the  rehearing."^^ 

Three  so-called  rights  of  appeal  are  created  under  this 
section: 

(1)  Where  a  person  deems  himself  aggrieved  by  any  order, 
direction  or  decision  of  a  local  board,  he  may  "appeal"  to 
the  local  board.  We  take  it  that  this  means  he  may  ask  the 
local  board  to  reconsider  its  decision.  This  is  not  a  true 
right  of  appeal.®"* 

(2)  Where  a  person  has  appealed  to  the  local  board  for  a 
reconsideration  of  its  decision  he  may  appeal  from  the 
second  decision  by  the  local  board  to  the  Board.  This  is  a 
true  right  of  appeal. 

(3)  A  person  who  deems  himself  aggrieved  by  any  order, 
direction  or  regulation  made  by  the  Board  may  appeal  to 
the  Board.  This  again  is  a  right  to  apply  for  a  rehearing. 
It  is  not  a  right  of  appeal. 


"R.S.O.  1960,  c.  137,  s.  10a,  as  enacted  by  Ont.  1965,  c.  39,  s.  4, 
*See  pp.  226-35  supra. 


Chapter  112         1785 

Where  a  person  has  been  heard  by  a  local  board  before  it 
has  made  its  first  decision  there  seems  to  be  no  justification  ior 
an  application  by  way  of  the  so-called  "appeal"  to  the  local 
board  before  an  appeal  can  be  taken  to  the  Board.  1  his  is  a 
vexatious  procedure.  If  it  is  intended  to  give  a  right  to  ask 
for  a  rehearing  by  the  local  board  in  addition  to  a  right  of 
appeal  to  the  Board  the  appellant  should  have  the  right  to 
either  apply  for  a  rehearing  before  the  local  board  or  to  appeal 
directly  to  the  Board.  1  he  law  should  not  require  two  hear- 
ings before  the  local  board  before  the  matter  may  be  brought 
before  the  Board. 

It  is  to  be  obsened  that  any  person  may  appeal  from  "any 
.  .  .  regulation  made  by  the  Board  ...  to  the  Board". ^^  A 
regulation  is  a  legislative  enactment.  We  can  understand  that 
persons  affected  by  regulations  made  by  the  Board  might  wish 
to  have  a  reconsideration  of  the  regulation  and  a  process  for 
reconsideration  is  quite  proper  but  it  ought  not  to  be  in  the 
nature  of  an  appeal. 

We  also  obsene,  as  we  did  with  respect  to  the  appeal 
provision  in  the  Expropriation  Procedures  Act,^^  that,  in  con- 
ferring the  right  of  appeal,  the  language  "he  may  appeal  ..." 
is  strange  and  unusual.  The  normal  language  is  "an  appeal 
lies". 

We  do  not  believe  it  is  necessary  to  elaborate  upon  any 
procedural  deficiencies  in  the  section— such  as  the  failure  to 
confer  on  a  respondent,  other  than  a  local  board,  the  same 
rights  as  those  conferred  on  an  appellant— "to  attend  and  make 
representations  and  to  adduce  evidence  respecting  the  appeal 
either  by  himself  or  through  counsel". ^^  The  provisions  of 
the  minimum  rules  of  procedure  contained  in  the  Statutory 
Powers  Procedure  Act  when  enacted  and  of  any  appropriate 
detailed  rules  of  procedure  when  applied  to  the  section  would 
remedy  the  shortcomings. 

A  Further  Right  of  Appeal  to  the  Court 

There  are  many  different  types  of  orders,  directions  and 
decisions  w'hich  may  be  made  under  the  Act  and  regulations 

"R.S.O.  1960,  c.  137,  s.  10a(2)  (b),  as  enacted  by  Ont.  1965,  c.  39,  s.  4. 

"See  p.  1063  supra. 

"'R.S.O.  1960,  c.  137,  s.  10a(7)  as  enacted  by  Ont.  1965,  c.  39,  s.  4. 


1786  TIte  Farm  Producis  Mdrkclino-  Board 


& 


made  under  it.  One  cannot  therefore  say  that  all  decisions  of 
the  Farm  Products  Marketing  Board  should  be  appealable  to 
the  Divisional  Court  of  the  High  Court  of  Justice. ^^  How- 
ever, some  of  these  decisions— those  based  substantially  on 
matters  of  law  or  the  application  of  clearly  defined  standards- 
should,  we  believe,  be  made  so  appealable.  Many  of  these 
decisions  relate  to  the  right  of  a  person  to  earn  his  livelihood 
as  he  sees  fit,  e.g.,  licensing  and  production  and  marketing 
quota-fixing  decisions.  The  Farm  Products  Marketing  Board 
should  not  be  the  final  arbiter  on  the  legal  issues  involved  in 
these  decisions. ^^  "W^here  the  decisions  are  predominantly  of 
an  administrative  (i.e.  policy)  nature  a  right  of  appeal  should 
lie  from  the  Board  to  the  Minister  of  Agriculture  and  Food.^"*^ 


■^o' 


JUDICIAL  REVIEW 

There  are  no  provisions  in  the  Farm  Products  Marketing 
Act  expressly  restricting  applications  for  judicial  review  and  in 
fact  decisions  of  the  Board  and  some  local  boards  in  actions^^^ 
and  applications^"^  challenging  them,  have  been  the  subject 
matter  of  proceedings  in  the  ordinary  courts.  We  have  shown 
that  subjective  ingredients  in  powers  of  decision  can  have  the 
effect  of  restricting  judicial  review  of  such  decisions  and  have, 
therefore,  recommended  that  they  should  not  be  included  in 
a  statutory  power  unless  they  are  necessary  to  carry  out  the 
scheme  of  the  statute. ^*^^  There  are  several  of  such  subjective 
ingredients  in  powers  of  decision  conferred  under  the  Farm 
Products  Marketing  Act.  We  have  referred  to  some  of  them 
in  this  Chapter.  The  Board  may  pass  regulations  providing 
for  "the  refusing  to  fix  and  allot  to  any  person  a  quota  for  the 
marketing  of  a  regulated  product  for  any  reason  that  the 

"^See  pp.  330  and  667  supra.  And  see  Bill  183,  1970. 

»°See  pp.  234  and  1131-32  supra. 

^""Ibid. 

'^°^Freeman  v.  Far?n  Products  Marketing  Board  et  al,  [1958]  O.R.  349;  Mc- 
Donald et  al  V.  Farm  Products  Marketing  Board,  February  24,  1959,  un- 
reported and  Robbins  et  al  v.  Ontario  Flue-Cured  Tobacco  Groioers' 
Marketing  Board,  [1964]  1  O.R.  56,  affirmed  p.  653,  affirmed  [1965]  S.C.R. 
431. 

'^°''Wentiuorth  Cannifig  Co.  Ltd.  v.  Farm  Products  Marketing  Board,  [1950] 
O.W.N.  100,  [1950]  2  D.L.R.  245  and  Atkins  et  al  v.  Ontario  Flue-Cured 
Tobacco  Growers'  Marketing  Board,  [1964]  1  O.R.  56,  affirmed  p.  653, 
affirmed  [1965]  S.C.R.  431. 

"=See  pp.  90-94  and  275  supra. 


Chaptt'Tin         \7S7 

Board  deems  proper,  .  .  .".^"*  This  is  more  subjective  than  is 
necessary.  We  have  dealt  with  this  point  at  greater  length  in 
the  discussion  on  licensing  in  this  Chapter.  li  the  recom- 
mendations which  we  make  are  adopted— the  insertion  of 
standards  to  go\'ern  the  exercise  of  the  power— then  decisions 
under  these  provisions,  and  others  like  them,  will  be  more 
susceptible  to  judicial  review. 

POWERS  OF  INVESTIGATION: 

SCOPE  AND  CONDITIONS  PRECEDENT 

The  following  provisions  in  the  Act  relate  to  the  investi- 
gatory powers  of  the  Board  and  the  local  boards. 

"4.(1)    The  Board  may, 

(a)  subject  to  the  regulations,  investigate,  adjust  or  other- 
wise settle  any  dispute  relating  to  the  marketing  of  a 
regulated  product  between  producers  and  persons 
engaged  in  marketing  or  processing  the  regulated 
product." 

(aa)  investigate  any  matter  relating  to  the  producing, 
marketing  or  processing  of  a  regulated  product;  .  .  . 

(b)  investigate  the  cost  of  producing,  processing  and 
marketing  any  farm  product,  prices,  price  spreads, 
trade  practices,  methods  of  financing,  management 
policies  and  other  matters  relating  to  the  marketing  of 
farm  products;  .  .  . 

(e)  appoint  persons  to  inspect  the  books,  records,  docu- 
ments, lands  and  premises  and  any  regulated  product 
of  persons  engaged  in  producing  or  marketing  the 
regulated  product: 

(ea)     appoint  persons  to  inspect, 

(i)     the  books,  records  and  documents, 
(ii)     the  lands  and  premises, 
(iii)     any  flue-cured  tobacco,  and 
(iv)     any  growing  plants  or  other  development  in  the 

producing  of  flue-cured  tobacco, 
of   persons   engaged    in    the    producing   of   flue-cured 
tobacco;  .  .  . 

"'R.S.O.  1960,  c.  137.  s.  8(1)  para,  lla(iii)  as  enacted  by  Out.  1962-6.3,  c.  45, 
s.  6(4).  See  also  sub-paraj^raphs  (ii)  and  (iv)  as  re-enacted  bv  Ont.  1966, 
c.  56,  s.  1(1).  The  same  lans;ua^e  is  used  in  section  18(2)  (b),  (ii)-(iv),  as 
enacted  by  Ont.  1962-63,  c.  45.  s.'ll  and  amended  bv  Ont.  1965.  c.  39,  s.  5(1) 
and  Ont.  1966,  c.  56,  s.  2(1)  (2). 


1788         The  Farm  Products  Marketing  Board 

(2)  Upon  an  investigation  under  this  section,  the  Board 
has  all  the  powers  that  may  be  conferred  upon  a  com- 
missioner under  The  Public  Inquiries  Act. 

(3)  The  Board  may  delegate  to  the  local  board  such  of  its 
powers  under  subsection  1  as  it  deems  necessary,  and 
may,  at  any  time,  terminate  such  delegation. "^"^ 

Section  4(1) (a)  apparently  limits  the  power  of  investiga- 
tion therein  conferred  by  the  opening  phrase  "subject  to  the 
regtilations".  These  words  are  ambiguous.  The  Board  has 
advised  us  that  "the  w^ords  'subject  to  the  regidations'  would 
appear  to  mean  that  a  specific  provision  for  arbitration  in  the 
regulations  w^ould  take  precedence. "^°^  If  this  be  the  case,  the 
opening  language  in  this  investigatory  provision  should  be 
amended  to  read  accordingly.  The  existence  of  a  powder  of 
investigation  should  not  depend  upon  unnecessarily  vague  or 
imprecise  language. ^'^^ 

The  powers  to  investigate  "any  matter  relating  to  the 
producing,  marketing  or  processing  of  a  regulated  product"^*'^ 
and  the  "cost  of  producing,  processing  and  marketing  any 
farm  product,  prices,  price  spreads,  trade  practices,  methods 
of  financing,  management  policies  and  other  matters  relating 
to  the  marketing  of  farm  products"^"^  are  almost  unlimited  in 
scope.  In  the  exercise  of  these  powers  the  Board  has  all  the 
powers  that  may  be  conferred  upon  a  commissioner  under  the 
Public  Inquiries  Act.  While  it  is  for  the  Legislature  to  say 
whether  these  powers  should  be  conferred  on  the  Board  with 
powder  to  delegate  them  to  local  boards,  we  think  that  the 
conferment  of  such  w^ide  powers  of  investigation  should  be 
under  the  control  of  the  Lieutenant  Governor  in  Council. 

The  recommendations  w^hich  we  have  made  in  Report 
Number  1  respecting  the  conferment  of  the  powders  of  a  com- 
missioner under  the  Public  Inquiries  Act  and  the  procedures 
to  govern  investigations  are  applicable  to  investigations  under 
the  Farm  Products  Marketing  Act.^^^ 

^°nhid.,  s.  4(l)-(3)  as  amended  by  Ont.  1961-62,  c.  41,  s.  1,  Ont.  1962-63,  c.  45, 

s.  3(l)-(2)  and  Ont.  1968-69,  c.  37,  s.  l(l)-(4). 
"'Letter,  December  18,  1967. 
"'See  p.  390  supra. 

""R.S.O.  1960,  c.  137,  s.  4(1)  (aa)  as  re-enacted  by  Ont.  1962-63,  c.  45,  s.  3(1). 
"*/fo?rf.,  s.  4(1)  (b). 
"°See  pp.  451-52  and  465  supra. 


Chapter  112         1789 

Right  of  Entry  and  Inspection 

"7.  (1)  Every  person,  when  requested  so  to  d(;  by  an  oflicer 
of  the  Board  or  a  local  board  or  by  a  person 
appointed  by  the  Board  or  a  local  board  to  inspect 
the  books,  records  and  premises  of  persons  engaged 
in  the  producing  or  marketing  of  a  regulated  prod- 
uct, shall  in  respect  of  the  regulated  product  pro- 
duce such  books  and  records  and  permit  inspection 
thereof  and  supply  extracts  therefrom  and  permit 
inspection  of  such  premises. 

(2)  No  person  shall  hinder  or  obstruct  an  officer  of  the 
Board  or  of  a  local  board  or  a  person  appointed  by 
the  Board  or  by  a  local  board  to  inspect  the  books, 
records  and  premises  of  persons  engaged  in  the 
producing  or  marketing  of  a  regulated  product  in 
the  performance  of  his  duties  or  refuse  to  permit 
him  to  carry  out  his  duties  or  refuse  to  furnish  him 
with  information  or  furnish  him  with  false  informa- 
tion. 

(.S)  The  production  by  a  person  of  a  certificate  of  his 
appointment  by  the  Board  or  a  local  board  to 
inspect  the  books,  records  and  premises  of  persons 
engaged  in  the  producing  or  marketing  of  a  regu- 
lated product  purporting  to  be  signed  by  the  chair- 
man and  secretary  of  the  Board  or  the  local  board 
shall  be  accepted  by  any  person  engaged  in  the 
producing  or  marketing  of  the  regulated  product, 
as  p7-iuni  facie  proof  of  such  appointment. "^^^ 

We  have  three  obsenations  to  make  concerning  these  pro- 
visions: 

(1)  They  permit  entry  and  inspection  of  a  private  dwelling. 
This  is  contrary  to  the  recommendations  we  have  made  in 
Report  Number  1.^^^  A  provision  similar  to  that  contained 
in  the  Industrial  Safety  Act^^^  would  appear  to  be  all  that 
is  required.   It  reads: 

"An  inspector  shall  not  enter  any  room  or  place  actually 
used  as  a  dwelling  without  the  consent  of  the  occupier 
except  under  the  authority  of  a  search  warrant  issued 
under  section  14  of  The  Summary  Convictions  Act." 


"•R.S.O.  1960,  c.  137,  s.  7. 

""See  pp.  415,  416,  418  and  419  supra. 

""Ont.  1964,  c.  45,  s.  8(3).  See  p.  418  supra. 


1790         The  Farm  Products  Marketing  Board 

(2)  There  is  no  restraint  on  the  use  of  information  that  may 
be  obtained  on  the  inspection.  The  members  of  the  local 
boards  are  those  engaged  in  the  production  of  the  regulated 
product.  Under  this  legislation  they  and  their  inspectors 
are  in  no  way  restrained  from  using  or  communicating  to 
others  the  information  they  obtain  in  the  course  of  their 
duties  as  inspectors.  This  is  contrary  to  recommendations 
made  in  Report  Number  1."^ 

(3)  The  person  whose  books  and  records  are  being  in- 
spected is  required  "to  supply  extracts  therefrom".  This  is 
an  unreasonable  provision.  It  should  be  sufficient  if  the 
person  whose  records  are  being  investigated  were  required 
to  permit  their  temporary  removal  for  the  purpose  of 
having  copies  made.  To  impose  statutory  obligations  to 
supply  extracts  from  records  is  an  unjustified  encroachment 
on  civil  rights. ^^^ 

PENALTIES 

Every  person  who  fails  to  comply  with  or  contravenes  any 
of  the  provisions 

(1)  of  the  Act,  or 

(2)  of  the  regulations,  or 

(3)  of  any  plan,  or 

(4)  of  any  order  of  the  Board  or  local  board,  or 

(5)  of  any  regulation  of  the  Board  or  local  board,  or 

(6)  of  any  direction  of  the  Board  or  local  board,  or 

(7)  of  any  agreement  or  award  or  renegotiated  agreement 
or  award  filed  with  the  Board,  is  guilty  of  an  offence  and 
on  summary  conviction  is  liable  for  a  first  offence  to  a 
fine  of  not  more  than  $500.00  and  for  a  subsequent 
offence  to  a  fine  of  not  more  than  $5,000.00.^^® 

This  is  the  sort  of  penal  legislation  that  brings  the  law  into 
disrespect  and  promotes  contempt  for  the  law.  It  is  omnibus 
penal  legislation  and  lazy  draftsmanship.  The  individual  is 
made  liable  to  be  prosecuted  and  punished  in  the  criminal 

^^*See  p.  462  supra. 

'"See  pp.  421-22  supra. 

"'"R.S.O.  1960,  c.  137,  s.  13  as  re-enacted  bv  Ont.  1968-69  c.  37,  s.  6. 


Chapter  J 12         1791 

courts  for  contravention  of  laws  that  he  has  no  means  of  know- 
ing existed.  The  mere  contravention  is  suflicient.  Intention 
to  "contravene"  is  not  a  requirement.  As  we  have  said,  there 
is  no  requirement  that  regulations  of  local  boards  be  filed  any- 
where except  with  the  Board,  and  no  re(juiremcnt  that  orders 
and  directions  of  the  Board  and  local  boards  should  be  brought 
to  the  attention  of  the  alleged  offender  or  made  known  to  any- 
one. A  requirement  that  the  regulations  should  be  published 
in  the  Ontario  Gazette  and  that  a  failure  to  comply  with  an 
order  or  direction  of  the  local  board  after  it  has  been  made 
known  to  the  alleged  offender  would  seem  to  be  minimum 
conditions  precedent  to  liability. 

Attention  is  drawn  to  the  more  humane  provisions  of  the 
Regulations  Act  of  Canada^^'  (as  contrasted  with  the  Ontario 
Regulations  Act)  which  stipulate  that  the  regulations  which 
must  be  published  in  the  Canada  Gazette  include  "a  rule, 
order,  regulation,  by-law  or  proclamation  .  .  .  for  the  con- 
travention of  which  a  penalty  of  fine  or  imprisonment  is  pre- 
scribed by  or  under  an  Act  of  Parliament".^ ^^  The  Act  ex- 
pressly provides  that: 

"(3).  ...  no  person  shall  be  convicted  for  an  offence  con- 
sisting of  a  contravention  of  any  regulation  that  was 
not  published  in  the  Canada  Gazette  unless 

(a)  the  regulation  was,  pursuant  to  section  9,  exempted 
from  the  operation  of  subsection  (1)  or  the  regu- 
lation expressly  provides  that  it  shall  operate 
according  to  its  terms  prior  to  publication  in  the 
Canada  Gazette,  and 

(b)  it  is  proved  that  at  the  date  of  the  alleged  contra- 
vention reasonable  steps  had  been  taken  for  the 
purpose  of  bringing  the  purport  of  the  regulation 
to  the  notice  of  the  public,  or  the  persons  likely  to 
be  affected  by  it,  or  of  the  person  charged. "^^^ 

As  far  as  the  "regulations"  are  concerned  as  distinct  from 
"orders  and  directions",  our  criticism  will  be  substantially  met 
if  our  recommendation  that  the  regulations  of  the  local 
boards  be  subject  to  the  approval  of  the  Lieutenant  Governor 
in  Council  and  be  filed  and  published,  is  adopted. 

'"R.S.C.  1952,  c.  235. 
"«/6zd.,  s.  2(a)  (ii). 
^^^Ihid.,  s.  6(3). 


1 792         The  Farm  Products  Marketing  Board 

Penalties  for  the  contravention  of  orders  and  directions 
of  the  Board  and  the  local  boards  are  a  different  matter.  What 
are  the  orders  and  directions  that  are  contemplated  by  section 
13?  The  Board  is  empowered  to  "do  such  acts  and  make  such 
orders  and  issue  such  directions  as  are  necessary  to  enforce  the 
due  observance  and  carrying  out  of  the  provisions  of  this  Act, 
the  regulations  or  any  plan".^-"  "Orders  and  directions"  re- 
ferred to  in  section  13,  which  creates  the  offences  are  not 
defined  in  the  Act.  There  is  nothing  in  the  Act  even  requir- 
ing the  orders  and  directions  to  the  Board  or  of  a  local  board 
to  be  in  writing. 

The  legislation  should  be  amended:  (1)  to  define  ex- 
pressly what  are  the  orders  and  directions  referred  to  in  section 
13;  (2)  to  provide  that  they  should  be  in  writing;  (3)  to  pro- 
vide that  the  orders  and  directions  should  be  brought  to  the 
attention  of  the  person  concerned  before  their  contraven- 
tion can  constitute  an  offence;  and  (4)  to  provide  that  the 
orders  and  directions  should  state  on  their  face  that  a  viola- 
tion thereof  constitutes  an  offence  which  may  be  prosecuted 
on  summary  conviction. 

The  penal  aspects  of  this  legislation  should  be  completely 
reviewed  to  determine  how  the  obligations  and  duties  it  im- 
poses can  be  best  enforced.  Prosecutions  of  a  criminal  nature 
are  not  the  most  appropriate  methods  for  their  enforcement 
in  all  cases.  Most  of  the  orders  and  directions  of  the  Board 
could  be  enforced  by  civil  remedies.  In  fact,  the  Board  has 
such  powerful  control  over  the  production  and  marketing  of 
farm  products  through  licensing  that  it  is  difficult  to  see  why 
such  a  multitude  of  penal  provisions  is  necessary.  The  use 
of  the  processes  of  the  criminal  law  where  any  form  of  civil 
proceedings  would  be  effective  is  not  only  an  improper  use  of 
the  criminal  procedure,  but  it  tends  to  bring  discredit  on  all 
law  enforcement  agencies. ^-^ 

Where  a  person  who  fails  to  pay  at  least  the  minimum  or 
determined  price  of  a  product  has  been  convicted  of  this 
offence,  he  is,  in  addition  to  the  fine  provided  for  in  section 

'"R.S.O.  1960,  c.  137,  s.  4(1)  (h). 

^^^Section  12a  of  the  Act  enacted  by  Ont.  1968-69,  c.  37,  s.  5,  provides  for  a 

form  of  injunctive  relief.  It  is  virtually  identical  to  s.  21  of  the  Milk  Act, 

Ont.  1965,  c.  72  on  which  we  comment  in  Chapter  117. 


Chapter  112         1793 

13,  "liable  to  a  penalty  of  an  amount  equal  to  the  amount  of 
such  minimum  or  determined  price  less  any  amount  paid  by 
such  person  as  payment  in  full  .  .  .".^--  This  penalty  is  not 
paid  to  the  person  who  has  received  less  than  the  minimum 
price  but  inider  the  Act  it  nnist  be  paid  to  the  local  board 
and  the  local  board  shall, 

"(a)     distribute    the    money    so    paid    pro    rata    among   the 
persons  who  failed  to  receive  at  least  the  minimum  or 
determined  price;  or 
(b)    use  the  money  to  stimulate,  increase  and  improve  the 
marketing  of  the  regulated  product. "^^' 

These  provisions  emphasize  the  force  of  our  recommendation 
that  the  obligations  imposed  under  the  Act  could  better  be 
enforced  by  a  civil  remedy.  They  offend  against  sound  prin- 
ciples of  criminal  law  and  criminal  procedure— and  this  is 
criminal  law  although  passed  by  the  Province.  The  criminal 
process  is  being  used  for  the  purpose  of  collecting  debts 
created  by  the  Act.  In  addition,  it  is  being  used  unnecessarily. 
A  simple  summary  application  made  by  a  local  board  to  a 
county  court  judge  for  an  order  for  all  the  relief  given  by  this 
subsection  should  be  sufficient. 

There  are  real  procedural  difficulties  in  obtaining  relief 
in  the  criminal  courts.  It  appears  that  separate  charges  or  at 
least  separate  counts  in  each  charge  would  have  to  be  laid 
with  regard  to  each  transaction  involving  the  payment  of  less 
than  the  minimum  or  determined  price  established  for  the 
regulated  product.  This  is  an  unduly  cumbersome  and  in- 
efficient procedure. 

We  cannot  see  any  reason  justifying  subsection  2(b)  which 
permits  the  local  board  to  use  money  rightfully  belonging  to 
producers  who  have  been  paid  less  than  the  minimum  or 
determined  price,  for  the  general  benefit  of  all  producers.  It 
may  be  an  administrative  convenience  but  this  should  not 
outweigh  the  right  of  those  who  have  sold  produce  to  be  paid 
the  proper  amount  therefor.  There  is  no  reason  why  they 
should  subsidize  the  improvement  of  the  marketing  of  the 
regulated  product  out  of  what  is  justly  owing  to  them.  The 
subsection  should  be  repealed. 

"Tl.S.O.  1960.  c.  1.S7,  s.  14(1)  as  re-enacted  by  Ont.  1968-69,  c.  37,  s.  7. 
"V&jrf.,  s.  14(2)  as  re-enacted  by  Ont.  1968-69,  c.  37,  s.  7. 


1794         The  Farm  Products  Marketing  Board 

Onus  of  Proof 

"17.  (1)  In  an  action  or  prosecution  under  this  Act,  the 
onus  is  upon  the  defendant  or  the  accused,  as  the 
case  may  be,  to  prove  that  the  product  in  respect 
of  which  the  action  or  prosecution  is  brought  is 
not  a  regulated  product  within  the  meaning  of 
thisAct/'i^-t 

The  well-established  rule  of  criminal  law  procedure  is  that 
the  onus  is  on  the  Crown  to  prove  its  case  beyond  a  reasonable 
doubt.  This  subsection  reverses  this  onus  without  justifica- 
tion. If  it  is  read  literally  a  producer  of  clover  seed,  and  clover 
seed  is  not  a  regulated  product,  who  is  charged  with  marketing 
clover  seed  without  a  licence,  would  be  required  to  prove 
each  set  of  plans  regulating  the  marketing  of  products  under 
the  Act  in  order  to  establish  that  clover  seed  is  not  covered  by 
any  of  them.  The  prosecution  has  the  means  of  knowing  what 
products  are  regulated  and  it  is  in  a  position  to  prove  w'hat 
products  are  not  regulated.  There  is  no  justification  for 
placing  such  an  onus  on  the  accused. 

We  are  advised  that  the  real  purpose  of  the  provision  is 
to  place  the  onus  on  an  accused  person  when  he  intends  to 
rely  on  the  defence  that  the  product  is  in  the  course  of  inter- 
provincial  or  export  trade  and  is  therefore  beyond  the  reach 
of  Ontario  legislation.  If  this  is  its  purpose  why  not  so  state? 
It  would  be  quite  simple  to  place  the  onus  on  the  accused  to 
prove  that  his  product  w^as  produced  for  the  purposes  of  inter- 
provincial  or  export  trade.  This  is  a  fact  peculiarly  within  his 
own  knowledge.  The  Agricultural  Products  Marketing  Act 
(Canada)  deals  with  the  converse  of  this  problem  in  the  follow- 
ing manner: 

"4.(1)  Every  person  who  violates  any  regulation,  or  any  order, 
rule  or  regulation  made  by  any  board  or  agency  under 
this  Act  with  reference  to  the  marketing  of  an  agricul- 
tural product  in  inter-provincial  and  export  trade,  is 
guilty  of  an  offence  and  is  liable  on  summary  conviction 
to  a  fine  not  exceeding  3500.00  or  to  imprisonment  for 
a  term  not  exceeding  3  months  or  to  both  fine  and 
imprisonment. 
(2)  In  any  prosecution  for  an  offence  under  this  Act,  the 
act  or  omission  complained  of,  in  respect  of  which  the 

"Vbi'rf.,  s.  17(1). 


Chapter  112         1795 

prosecution  wns  instituted,  sliall,  unless  the  accused 
proves  the  contrary,  be  deemed  to  relate  to  the  niarkei- 
nig  of  an  agricidtural  jjroduct  in  inter-provincial  and 
export  trade." '-•'^ 

This  provision  does  not  place  an  unfair  onus  on  an 
accused  person  as  he  knows,  or  should  know,  the  intended 
destination  of  his  product.  Legislation  similar  to  the  federal 
Act  should  be  enacted  in  Ontario  to  replace  section  17(1).^-" 

Substitution  of  One  Offence  for  Another 

"In  a  prosecution  under  the  Agricultural  Products  Market- 
ing Act  (Canada),  the  magistrate,  if  he  finds  that  the  offence 
is  not  proved  under  that  Act  but  the  evidence  establishes  an 
offence  of  a  similar  kind  in  relation  to  the  control  or  regula- 
tion of  the  marketing  of  the  regulated  product  locally  within 
Ontario  under  section  13  or  14,  may  convict  the  accused 
under  this  Act  notwithstanding  that  no  information  has  been 
laid  imder  this  Act."^-^ 

1  his  legislation  violates  the  most  elementary  principles 
of  justice.  It  is  a  bad  law.  Under  it  a  man  may  come  into 
court  charged,  with  one  offence  and  go  out  convicted  of  an- 
other. Its  purpose  may  be  to  fill  in  a  gap  which  sometimes 
appears  as  a  result  of  the  divided  jurisdiction  between  Parlia- 
ment and  the  Legislature  over  the  marketing  of  agricultural 
products.  But  the  legislation  cannot  be  justified  on  this 
ground.  The  Agricultural  Products  Marketing  Act  (Canada) 
makes  no  similar  provision.    The  section  should  be  repealed. 

Confiscation 

"The  Board  may  make  regulations  .  .  .  providing  for  the 
seizing,  removing,  destroying  or  otherwise  disposing  of  any 
growing  tobacco  plants  or  tobacco  produced  or  marketed  in 
violation  of  this  Act  or  the  res:ulations,  and  the  retention 
or  disposition  by  the  local  board  of  any  proceeds  of  the  sale 
thereof."^-^ 


°R.S.C.  1952,  c.  6,  s.  4  as  re-enacted  by  Can.  1957,  c.  15,  s.  3.  See  also  s.  21  of 
The  Milk  Act,  1965,  Ont.  1965,  c.  72  discussed  at  pp.  1891-92  injra. 

*We  have  recommended  that  statutory  provisions  shifting  the  onus  of  proof 
ought  not  to  apply  to  offences  created  by  subordinate  legislation.  See  p. 
354  supra. 

■R.S.O.  1960,  c.  137,  s.  17(2). 

Hbid.,  s.  18(2)  (d)  as  re-enacted  by  Ont.  1965,  c.  39,  s.  5(1). 


1 796         The  Farm  Products  Marketing  Board 

Exercising  the  powers  of  sub-delegation  conferred  on  it^^" 
the  Board  has  delegated  these  powers  to  the  Ontario  Flue- 
Cured  Tobacco  Growers'  Marketing  Board,  a  local  board. ^^" 
The  local  board  has  passed  the  following  regulation: 

"(1)  Where  the  local  board  determines  that  any  person  is 
producing  tobacco  or  has  produced  any  tobacco,  in  con- 
travention of  these  regulations,  the  local  board  may 
issue  an  order  to  such  person  requiring  him,  within  such 
period  of  time  as  is  stated  in  the  order,  to  destroy  any 
growing  tobacco  plants  that  are  being  so  produced  or 
any  tobacco  that  has  been  so  produced,  by  such  person. 

(2)  Every  such  order  shall  be  served  upon  the  person  named 
in  the  order  by  personal  service  or  by  sending  it  by 
registered  mail  addressed  to  such  person. 

(3)  If  any  growing  tobacco  plants  or  tobacco  are  not 
destroyed  in  compHance  with  an  order  made  under  sub- 
section (1)  within  the  time  specified  in  the  order,  the 
local  board  may  authorize  in  writing  an  officer  or 
employee  of  the  local  board  to  direct  and  procure  the 
destruction  of  the  growing  tobacco  plants  or  the  seizure 
and  removal  of  the  tobacco. 

(4)  The  officer  or  employee  of  the  local  board  authorized 
to  destroy  the  glowing  tobacco  plants  or  to  seize  and 
remove  tobacco  under  subsection  (3)  shall  enter  upon 
the  lands  on  which  the  said  tobacco  plants  are  growing 
or  into  the  premises  in  which  the  tobacco  is  found, 
taking  with  him  such  assistants  and  police  officers,  as  he 
may  deem  necessary,  and, 

(a)  Avhere  the  officer  or  employee  of  the  local  board  is 
authorized  to  direct  and  procure  the  destruction  of 
growing  tobacco  plants  on  such  lands,  he  shall  direct 
and  procure  the  destruction  of  the  growing  tobacco 
plants;  and 

(b)  where  the  officer  or  employee  of  the  local  board  is 
authorized  to  seize  and  remove  tobacco  found  in 
such  premises,  he  shall  seize  and  remove  the  tobacco 
from  such  premises. 

(5)  Where  tobacco  is  seized  and  removed  under  paragraph 
(b)  of  subsection  (4),  the  local  board  may  order  the 
tobacco  to  be  destroyed  or  sold,  as  the  local  board  deems 
proper,  and  where  the  local  board  orders  the  tobacco  to 


^"/&id.,  s.  18(4)  as  enacted  by  Ont.  1962-63,  c.  45,  s.  11(4). 

""R.R.O.  1960,  Reg.  173,  s.  4(1)  (p)  as  remade  by  O.  Reg.  186/65,  s.  1,  and 
amended  by  O.  Reg.  91/68,  s.  1. 


Cliaptc)  112         1797 

be  sold  the  proceeds  of  the  sale  shall  be  retained  by  the 
local  board  and  used  for  the  purj^oses  of  the  plan."''" 

It  is  obvious  that  this  legislation  is  intended  to  pio\idc 
strong  enforcement  measures  which  are  deemed  to  be  neces- 
sary with  respect  to  the  production  and  marketing  of  tobacco 
in  Ontario.  The  legislation,  however,  otTcnds  against  many 
principles  of  orderly  law  enforcement  and  the  rule  of  law. 
There  would  appear  to  be  no  good  reason  why  this  legislation 
should  not  conform  to  ordinary  rules  of  just  procedure.  The 
decisions  which  are  required  to  be  made  pursuant  to  it  appear 
to  be  primarily  of  a  judicial  nature  and  it  ^vould  appear  fair 
and  logical  that  a  person  whose  tobacco  is  sought  to  be  de- 
stroyed should  be  heard  before  such  an  order  is  made.  Alter- 
natively, if  it  is  considered  that  the  powers  are  of  an  emer- 
gency nature,  ^ve  recommend  that  they  be  exercisable  only  on 
a  warrant  being  obtained  from  a  justice  of  the  peace  after 
showing  that  there  are  reasonable  and  probable  grounds  to 
believe  that  there  has  been  production  of,  or  marketing  of, 
tobacco  plants  or  tobacco  in  \'iolation  of  the  Act  or  the  regu- 
lations. Further,  notwithstanding  compliance  with  this  rec- 
ommended warrant  procedure,  we  recommend  that  a  person, 
whose  tobacco  product  has  been  seized,  remo\'ed.  destroyed 
or  otherwise  disposed  of,  who  can  establish  that  the  product 
was  72ot  being  produced  or  marketed  in  violation  of  the  legis- 
lation, should  ha\'e  a  statutory  claim  for  compensation  for  the 
loss  so  inflicted  upon  him. 

PROTECTION  OF  MEMBERS  AND  EMPLOYEES 
OF  THE  BOARD  AND  LOCAL  BOARDS 

"No  member  of  the  Board  or  of  a  local  board  and  no  officer, 
clerk  or  employee  of  the  Board  or  of  a  local  board  is  per- 
sonally liable  for  anything  done  or  omitted  to  be  done  by  it 
or  by  him  in  good  faith  in  the  exercise  of  any  power  or  the 
performance  of  any  duty  under  the  authority,  or  purporting 
to  be  under  the  authority,  of  this  Act  or  the  regulations. "^^^ 

As  we  have  said  wath  respect  to  similar  provisions  in 
other  statutes,  we  can  see  no  reason  why  such  members  or 
employees  should  recei\'e  any  wider  protection  than  is  afforded 

^'^General    Regulations,    Ontario    Flue-Cured    Tobacco    Growers'    Marketing 

Board,  Februan'  17,  1969,  s.  14. 
"^'R.S.O.  1960,  c.  I'S?,  s.  4(6)  as  re-enacted  by  Ont.  1968-69,  c.  37,  s.  1(5). 


1798  The  Farm  Products  Marketing  Board 

by  the  common  law  for  those  acting  under  statutory  authority. 
The  exemption  from  liability  even  extends  to  acts  done  with- 
out statutory  authority  as  long  as  they  are  done  in  good  faith 
and  in  the  purported  exercise  of  statutory  authority.  We 
believe  that  the  Board  and  the  local  boards  and  their  respec- 
tive members  and  employees  should  be  fully  liable  for  all 
actionable  wrongs  committed  by  them  and  therefore  recom- 
mend that  section  4  (6)  should  be  repealed.  Members  and 
employees  who  have  acted  in  good  faith  should  be  entitled 
to  be  fully  indemnified  by  their  boards  with  respect  to  any 
judgments  obtained  against  them  relating  to  acts  intended  to 
be  done  pursuant  to  the  Act  and  regulations. ^^^ 

RECOMMENDATIONS 

1.  Section  3(2)  of  the  Act  should  provide  that  the  Farm 
Products  Marketing  Board  shall  consist  of  at  least  three 
members,  the  number  of  persons  fixed  for  a  quorum  in 
section  3(4a). 

2.  Section  6(4)  should  be  amended  so  as  to  relieve  only 
against  the  consequences  of  technical  or  minor  defects  in 
the  qualifications,  appointments  or  election  of  a  member 
or  officer  of  a  local  board. 

3.  The  provision  enabling  the  Board  to  define  "farm 
product"  should  be  repealed. 

4.  Consideration  should  be  given  to  deleting  "dairy 
products"  from  the  definition  of  "farm  product". 

5.  The  definition  of  "marketing"  should  be  amended  to 
confine  the  various  acts  or  activities  defined  as  marketing 
to  a  process  intended  to  result  in  a  sale  of  the  regulated 
product  in  question. 

6.  The  Act  should  contain  general  definitions  of  the  words 
"producing"  and  "processing". 

7.  The  Act  should  be  amended  to  provide  that  the  Lieu- 
tenant Governor  in  Council  shall  authorize  the  real  plan 
to  be  formulated  with  respect  to  specified  products  and 
the  constitution  of  the  local  boards  and  the  method  of 
electing  their  members. 


'For  a  further  discussion  of  Crown  liability  see  Chapter  131. 


Chapter  1 12  1799 

8.  Paragraph  12  of  section  8(1)  should  be  repealed  and  re- 
placed by  a  section  in  more  precise  language. 

9.  Paragraph  22  of  section  8(1)  should  be  repealed. 

10.  The  general  provisions  in  the  opening  part  of  section 
9(1)  should  be  repealed. 

11.  The  Lieutenant  Governor  in  Council  should  not  have 
power  under  section  6(1  )(f)  and  (g)  to  put  a  local  board 
into  trusteeship.  Where  a  local  board  is  to  be  put  into 
trusteeship  it  should  be  by  the  exercise  of  judicial  power 
and  not  legislative  power. 

12.  Both  Board  regulations  and  local  board  regulations 
should  be  subject  to  the  approval  of  the  Lieutenant 
Governor  in  Council— which  would  make  them  subject 
to  the  provisions  of  the  Regulations  Act. 

13.  Paragraph  3  of  section  8(1)  should  be  amended  to  set  out 
the  grounds  on  which  a  licence  to  a  producer  may  be 
refused  as  distinct  from  the  grounds  on  which  a  licence 
may  be  refused  to  those  engaged  in  marketing  and  pro- 
cessing. 

14.  The  words  "or  for  any  other  reasons  the  Board  may  deem 
sufficient"  should  be  deleted  from  paragraph  3  of  section 
8(1). 

15.  The  words  "for  any  reasons  that  the  Board  deems 
proper"  in  section  18(2)(a)  and  in  other  sections  of  the 
Act  should  be  deleted  and  appropriate  standards  inserted 
in  their  place. 

16.  The  recommendations  which  were  made  in  Chapter  76 
respecting  procedure  to  govern  licensing  applications  and 
other  licensing  proceedings  should  apply  to  all  licensing 
under  the  Farm  Products  Marketing  Act  and  its  svibordi- 
nate  legislation. 

17.  Those  regulations  which  provide  that  a  person  whose 
licence  has  been  refused,  suspended  or  revoked  or  not 
renewed,  may  show  cause  why  such  licence  should  not  be 
refused,  suspended  or  revoked  or  why  such  renewal 
should  not  be  refused,  should  be  repealed  and  a  proper 
appeal  procedure  provided. 


1800  The  Farm  Products  Marketing  Board 

18.  The  statute  should  clearly  provide  the  purpose  for  which 
licensing  fees  may  be  charged. 

19.  The  General  Regulations  of  February  7,  1970  of  the 
Ontario  Greenhouse  Vegetable  Producers'  Marketing 
Board  should  be  amended  to  conform  to  this  Report  and 
Report  Number  1. 

20.  Licensing  through  the  method  of  agreements  containing 
privative  clauses,  as  provided  for  in  the  General  Regula- 
tions of  the  Ontario  Greenhouse  Vegetable  Producers' 
Marketing  Board,  should  not  be  permitted. 

21.  Section  10a  should  not  require  two  hearings  before  the 
local  board  before  a  matter  may  be  brought  before  the 
Board.  If  it  is  intended  to  give  a  right  to  ask  for  a  re- 
hearing as  an  alternative  to  an  appeal  the  Act  should  so 
provide. 

22.  Section  10a  should  be  amended  to  state  that  "an  appeal 
lies"  rather  than  "he  may  appeal". 

23.  The  provisions  of  the  recommended  Statutory  Powers 
Procedure  Act  and  of  any  appropriate  detailed  rules  of 
procedure  should  apply  to  proceedings  under  section 
10a. 

24.  Appeals  based  substantially  on  matters  of  law  should  lie 
from  the  Board  to  the  Divisional  Court  of  the  High 
Court  of  Justice.  Where  decisions  are  predominantly  of 
an  administrative  nature  a  right  of  appeal  should  lie  from 
the  Board  to  the  Minister  of  Agriculture  and  Food. 

25.  The  power  of  investigation  in  section  4(1) (a)  should  be 
amended  so  as  not  to  depend  upon  vague  or  imprecise 
language. 

26.  The  wide  powers  of  investigation  under  section  4(1) (a) 
and  section  4(1  )(b)  should  be  subject  to  the  control  of 
the  Lieutenant  Governor  in  Council. 

27.  The  recommendations  which  we  have  made  with  respect 
to  the  powers  of  a  commissioner  under  the  Public 
Inquiries  Act  and  the  procedure  to  govern  investigations 
should  be  applicable  to  investigations  under  the  Farm 
Products  Marketing  Act. 


C ha pi c)  112         1801 

28.  The  investigative  provisions  in  section  7  should  not  per- 
mit entry  and  inspection  of  a  private  dwelling  without 
the  consent  of  the  occupier  except  under  the  authority 
of  a  search  warrant  issued  under  section  11  of  the 
Summary  Convictions  Act. 

29.  The  statute  should  place  a  restriction  on  the  use  of 
information  obtained  in  investigations  and  inspections. 

30.  Persons  being  investigated  sliould  not  be  obliged  to 
supply  extracts  from  books  and  records.  It  should  be 
sufficient  if  books  and  records  are  temporarily  removed 
for  the  purpose  of  having  copies  made. 

3 1 .  The  Act  should  define  expressly  what  are  the  orders  and 
directions  referred  to  in  section  13  and  provide  that  they 
should  be  in  -writing,  that  they  should  be  brought  to  the 
attention  of  the  person  concerned  before  their  contra- 
vention can  constitute  an  offence,  and  that  orders  and 
directions  should  state  on  their  face  that  a  violation 
thereof  constitutes  an  offence  which  may  be  prosecuted 
on  summary  conviction. 

32.  The  penal  aspects  of  the  legislation  should  be  completely 
review^ed  to  determine  how  the  obligations  and  duties 
it  imposes  can  be  best  enforced.  Section  14(1)  of  the 
Act  should  be  repealed  and  replaced  by  legislation  pro- 
viding a  simple  summary  application  by  a  local  board  to 
a  county  court  judge  for  an  order  for  the  relief  given  by 
section  14. 

33.  Section  14(2)(b)  should  be  repealed. 

34.  Section  17(1)  should  be  replaced  by  legislation  similar  to 
section  4(2)  of  the  Agricultural  Products  Marketing  Act 
(Canada). 

35.  Section  17(2)  should  be  repealed. 

36.  Section  18(2)(d)  should  be  amended  to  provide  that 
regulations  made  thereunder  should  provide  for  just 
procedure  for  the  exercise  of  the  powers  that  may  be 
conferred.  A  person  whose  tobacco  is  sought  to  be 
destroyed  should  be  heard  before  such  an  order  is  made. 
Alternatively,  if  it  is  considered  that  the  powers  in 
question  are  of  an  emergency  nature,  then  they  should 


1802  The  Farm  Products  Market  ins;  Board 

be  exercisable  only  on  a  warrant  being  obtained  from  a 
Justice  of  the  Peace  after  showing  on  reasonable  and 
probable  grounds  that  the  Act  or  the  regulations  have 
been  violated.  A  person  whose  product  has  been  seized, 
removed,  destroyed  or  otherwise  disposed  of,  who  can 
establish  that  the  product  was  not  being  produced  or 
marketed  in  violation  of  the  legislation  should  have  a 
statutory  claim  for  compensation  for  any  loss. 

37.    Section  4(6)  should  be  repealed. 


CHAPTER  113 

The  Fire  Marshal 

INTRODUCTION 

Ihe  Fire  Marshal  of  Ontario  is  an  officer  appointed  by 
the  Lieutenant  Governor  in  Council  under  the  Fire  Marshals 
Act^  with  wide  powers  of  a  judicial,  administrative,  investi- 
gative and  advisory  character.- 

The  Deputy  Fire  Marshal  "shall  act  in  the  stead  of  the 
Fire  Marshal  in  the  absence  of,  or  during  the  illness  or 
incapacity  of  the  Fire  Marshal,  or  in  the  case  of  a  vacancy  in 
the  office,  and  .  .  .  when  so  acting,  [he]  has  all  the  power  and 
authority  of  the  Fire  Marshal,  and  .  .  .  shall  exercise  such 
powers  and  perform  such  duties  for  the  prevention  or  investi- 
gation of  fire  or  the  protection  of  life  and  property  from  fire 
as  the  Lieutenant  Governor  in  Council  deems  expedient  or 
as  are  prescribed  by  the  regulations."^ 

In  addition  to  the  Deputy  Fire  Marshal  the  Act  provides 
for  the  appointment  of  district  deputy  fire  marshals  and 
inspectors  who  may  exercise  the  powers  of  the  Fire  Marshal.^ 

JUDICIAL  POWERS 

We  deal  only  with  the  principal  judicial  powers  of  the 
Fire  Marshal.  If  on  an  inspection  it  is  found  that 

(1)  a  building  or  other  structure  is  for  want  of  repair  or  by 
reason  of  age  and  dilapidated  condition  or  any  other  cause 
especially  liable  to  fire,  or 

'R.S.O.  1960,  c.   148,  amended  bv  Ont.   1960-61,  c.  29;  Ont.   1961-62,  c.  44; 

Ont.  1962-63,  c.  47:  Ont.  1965,  c'  41;  Ont.  1966,  c.  59,  and  Ont.  1968,  c.  43. 
''R.S.O.  1960,  c.  148,  ss.  2(1),  3,  4,  12  and  s.  19,  as  amended  by  Ont.  1960-61, 

c.  29,  s.  1. 
"Ibid.,  s.  2(2). 
'Ibid.,  s.  2(3)  (4). 

1803 


1804  The  Fire  Marshal 

(2)  is  so  situated  as  to  endanger  any  other  property,  or 

(3)  so  occupied  that  fire  would  endanger  persons  or  prop- 
erty therein,  or 

(4)  that  exits  from  the  building  or  buildings  are  inade- 
quate or  improperly  used,  or 

(5)  that  there  are  in  or  upon  the  buildings  or  premises 
combustible  or  explosive  materials,  or 

(6)  conditions  dangerous  to  the  safety  of  the  buildings  or 
premises  or  to  adjoining  property  exist, 

the  officer  making  the  inspection  may  order 

(a)  the  removal  of  the  buildings  or  the  making  of  struc- 
tural repairs  or  alterations,  or 

(b)  the  removal  of  combustible  or  explosive  material  or 
anything  that  may  constitute  a  fire  menace,  or 

(c)  the  installation  of  safeguards,   e.g.   fire   extinguishers, 
alarms,  fire  escapes,  etc.^ 

"The  Fire  Marshal,  Deputy  Fire  Marshal,  a  district  deputy 
fire  marshal,  an  inspector  or  an  assistant  to  the  Fire  Marshal 
may  order  the  removal  from  any  building  not  being  of  fire- 
resistive  construction  or  being  within  fifty  feet  of  a  iiospital, 
school,  church,  theatre  or  any  other  place  of  public  assembly 
or  an  hotel,  apartment  house  or  multiple  occupancy  dwell- 
ing, of  a  process  of  manufacture  or  other  occupancy  that 
because  of  the  danger  of  fire  or  explosion  is  especially 
hazardous  to  life  or  property  or  may  order  that  any  such 
premises  shall  not  be  used  for  any  such  process  or  occu- 
pancy."'' 

No  provision  is  made  for  rules  governing  the  exercise  of  these 
powers.  The  adoption  of  our  recommendation  made  in 
Report  Number  1  with  respect  to  a  Statutory  Powers  Pro- 
cedure Act  and  Statutory  Powers  Rules  Committee'  will 
rectify  this  deficiency.  We  recognize  that  in  some  cases  these 
powers  must  be  exercised  for  emergency  purposes  and  pro- 
visions should  be  made  for  such  cases  w4th  proper  safeguards. 

'Ibid.,  s.  19(2). 
"Ibid.,  s.  19(4). 
'p.  2I2flf.  supra. 


Chapter  113         1805 

APPEALS 

Where  an  order  is  made  by  an  officer,  olher  ihan  the 
Fire  Marshal,  for  the  removal  of  buildings  or  the  making  of 
structural  repairs  or  alterations  therein  or  the  removal  of  a 
"process  of  manufacture  or  other  occupancy  that  because  of 
the  danger  of  fire  or  explosion  is  especially  hazardous  to  life 
or  property"  or  that  premises  shall  not  be  used  for  such 
occupancy,  an  appeal  lies  to  the  Fire  Marshal  and  from  the 
Fire  Marshal  to  a  county  court  judge. ^ 

The  language  of  the  Act  does  not  make  it  clear  that 
where  the  decisions  in  first  instance  under  the  relevant 
sections  are  made  by  the  Fire  Marshal  there  is  a  right  of 
appeal  to  the  county  court  judge.  This  right  of  appeal  should 
be  clarified.  The  words  "the  decision"  appear  to  relate  back 
to  the  decision  under  subsection  5  which  is  a  decision  by  the 
Fire  Marshal  on  appeal  to  him.  Further,  section  19(6)  com- 
mences—"If  the  party  appealing  is  dissatisfied.  .  .  ."  It  is  to  be 
noted  that  the  commendable  principle  of  requiring  the  Fire 
Marshal  when  making  a  decision  on  an  appeal  to  him  to  give 
reasons  was  introduced  into  the  Act  in  1961.^  An  appeal  to  a 
judge  of  the  county  or  district  court  should  lie  in  all  cases 
when  the  decision  is  made  by  the  Fire  Marshal  whether  it  be 
a  decision  in  first  instance  or  on  appeal  from  a  decision  made 
by  an  officer.  This  conforms  to  our  recommendations  made 
in  Report  Number  l.^*' 

INVESTIGATIONS 

The  powers  of  the  Fire  Marshal  and  anyone  exercising 
his  powers  to  conduct  investigations  include 

(1)  power  to  enter  and  examine  any  premises 

(a)  on  which  a  fire  has  occurred,  or 

(b)  on  which  he  has  reason  to  believe  that  there  may  be 
a  substance  or  device  likely  to  cause  fire.^^ 

The  exercise  of  these  powers  is  subject  to  proper  conditions 
precedent. 

«R.S.O.  1960,  c.  148,  s.  19(5)  as  amended  by  Ont.  1960-61,  c.  29,  s.  1(1),  and 
s.  19(6). 

•Ont.  1960-61,  c.  29,  s.  1(1). 
"p.  233  supra. 
"R.S.O.  1960,  c.  148,  s.  12. 


1 806         The  Fire  Marshal 

The  ancillary  power  to  remove  and  retain  articles  or 
material  that  in  the  opinion  of  the  investigator  may  be  of 
assistance  in  connection  with  any  matter  under  investigations- 
should  be  based  on  reasonable  grounds  to  believe  that  the 
goods  or  material  may  be  of  assistance  in  connection  with 
any  matter  under  investigation— not  merely  on  the  opinion 
of  the  investigator.  There  should  be  a  right  of  repossession 
by  the  owner  within  a  reasonable  time/^ 

COMMITTAL  FOR  CONTEMPT 

Those  exercising  the  power  of  the  Fire  Marshal  have  all 
the  powers  that  may  be  conferred  on  a  commissioner  under 
the  Public  Inquiries  Act/^  In  addition,  all  these  officers 
"have  the  same  power  to  enforce  the  attendance  of  witnesses 
and  to  compel  them  to  give  evidence  and  to  produce  docu- 
ments and  things  as  is  vested  in  any  court  in  civil  cases. "^^ 
These  are  uncontrolled  powers  and  ought  not  to  be  vested  in 
a  tribunal  of  this  character.  We  have  referred  specifically  to 
these  powers  in  Report  Number  1.^^  Any  of  the  officers 
named  in  the  Act  have  power  to  commit  to  jail.  This  power 
we  have  recommended  should  only  be  exercised  by  the 
Supreme  Court  on  application  made  thereto. ^^ 

If  the  recommendations  that  w^e  have  made  in  Report 
Number  1  with  respect  to  the  Public  Inquiries  Act  are 
adopted,  our  criticisms  respecting  the  powers  of  investigation 
under  the  Fire  Marshals  Act  will  be  substantially  answered. ^^ 

WITNESS  FEES 

Unlike  many  other  Acts  providing  for  investigations 
some  provision  is  made  for  payment  of  witness  fees.  The  scale 
of  witness  fees  and  allowances  provided  by  regulation  is  the 
same  as  that  provided  under  the  Crown  Witnesses  Act.^^  As 
we  pointed  out  in  Report  Number  1  this  scale  is  unrealistic 

^-Ibid.,  s.  12(c). 

^^pp.  407ff.  supra  and  see  s.   14(3)  of  the  Summary  Convictions  Act,  R.S.O. 

1960,  c.  387. 
"R.S.O.  1960,  c.  148,  ss.  4  and  5. 
"76/f/.,  s.  13. 
"pp.  435ff.  supra. 
^^pp.  44 Iff.  supra. 
^*p.  465  supra. 
"R.R.O.  1960,  Regulation  183,  s.  8. 


Chapter  113         1807 

having  in  mind  the  loss  that  a  workman  must  suffer  while 
absent  from  his  job  to  give  evidence.  A  fee  of  $6.00  a  day 
with  an  allowance  up  to  $8.00  to  provide  accommodation 
for  each  night  tlie  witness  is  required  to  be  absent  from  his 
home  is  quite  inadequate.  Such  a  fee  and  allowance  requires 
the  unfortunate  witness  to  subsidize  this  branch  of  govern- 
ment administration.  We  reconnnended  in  Report  Number  1 
that  all  witnesses  other  than  qualified  experts  should  be  paid 
at  the  rate  of  $15.00  per  day  with  proper  travelling  and 
accommodation  allowances."" 

"Where  a  w^itness  does  not  reside  in  the  local  munic- 
ipality in  which  the  hearing  is  held  and  it  is  desirable  that 
he  remain  overnight  at  the  place  of  hearing"  he  is  entitled 
to  expenses  for  accommodation  up  to  $8.00  each  night. -^  In 
some  cases  a  witness  may  come  a  very  considerable  distance 
without  going  out  of  the  local  municipality  and  may  travel 
a  very  short  distance  from  one  local  municipality  to  another. 
The  entitlement  to  an  allowance  for  accommodation  should 
depend  only  on  the  necessity  of  the  witness  remaining  away 
from  home  overnight  regardless  of  from  what  local  munic- 
ipality he  comes.  This  is  a  matter  that  could  w^ell  be  subject 
to  certification  of  the  officer  conducting  the  hearing. 

RECOMMENDATIONS 

1.  Rules  should  be  made  for  the  exercise  of  the  judicial 
powers  of  the  Fire  Marshal  and  his  officers. 

2.  The  right  of  appeal  from  the  decisions  of  the  Fire  Marshal 
made  in  the  first  instance  should  be  clarified.  Section 
19(6)  should  be  amended  by  deleting  the  words  "If  the 
party  appealing  is  dissatisfied  with  the  .  .  ."  and  substi- 
tuting therefor  the  words  "If  a  party  is  dissatisfied  wdth 
a  .  .  ."  so  that  the  subsection,  in  part,  will  read:  "If  a  party 
is  dissatisfied  with  a  decision  of  the  Fire  Marshal,  he  may 
within  five  days  after  the  service  of  the  decision,  apply 
by  way  of  originating  notice  according  to  the  practice  of 
the  court,  to  the  judge  of  the  county  or  district  court.  ..." 

3.  The  right  to  retain  goods  and  material  removed  from 
premises  under  the  provisions  of  section  12(c)  should  be 

"p-  863  supra. 

"R.R.O.  1960,  Reg.  183,  s.  8(5). 


1 808         The  Fire  Marshal 

based  on  "reasonable  grounds  to  believe"  that  the  goods 
or  material  "may  be  of  assistance  in  connection  with  any 
matter  under  investigation." 

4.  An  owner  of  goods  or  material  removed  from  premises 
pursuant  to  the  powers  conferred  under  section  12(c) 
should  have  a  right  of  repossession  within  a  reasonable 
time. 

5.  The  investigatory  powers  should  be  made  to  conform  to 
our  recommendations  inade  in  Report  Number  1. 

6.  Provision  should  be  made  for  the  payment  of  adequate 
witness  fees  to  witnesses  so  as  to  compensate  them  for  loss 
of  time  and  expenses  while  attending  to  give  evidence 
before  the  Fire  Marshal  or  any  of  his  officers. 


CHAPTER  114 


The  Hydro-Electric  Power 
Commission  of  Ontario 


INTRODUCTION 

Ihe  Hydro-Electric  Power  Commission  of  Ontario  is  a 
body  corporate  deriving  its  powers  mainly  from  the  Power 
Commission  Act^  and  the  Power  Control  Act."  Generally 
speaking,  the  function  of  the  Commission  is  to  produce  and 
supply  power  to  municipal  corporations  at  cost  and  to  other 
customers  at  rates  deemed  to  be  reasonable  by  the  Commis- 
sion. 

We  are  not  concerned  with  the  powers  conferred  on  the 
Commission  to  carry  on  its  ordinary  commercial  activities. 
We  are,  however,  concerned  with  its  statutory  powers  which 
are  in  excess  of  those  that  may  be  exercised  by  an  ordinary 
corporation,  e.g.  power  of  expropriation,  power  to  flood  lands 
and  certain  other  extraordinary  rights,  privileges  and  immuni- 
ties. 

POWERS  OF  EXPROPRIATION  AND  ENTRY 

The  Commission's  power  to  expropriate,  enter  upon 
land,  and  take  land  and  personal  property  without  the  own- 
er's consent  were  in  a  great  state  of  confusion  prior  to  the  pass- 
ing of  the  Expropriations  Act,  1968-69^  and  since  the  passing 
of  that  Act  the  confusion  has  not  been  entirely  dissolved.  The 
Act  provides: 

^R.S.O.  1960,  c.  300  as  amended  bv  Ont.  1960-61,  c.  78:  Ont.  1961-62,  c.  106; 
Ont.  1965,  c.  100;  Ont.  1966,  c.  119;  and  Ont.  1968,  c.  98. 
'R.S.O.  1960,  c.  302. 
'Ont.  1968-69,  c.  36. 

1809 


1810         The  Hydro-Electric  Power  Commission  of  Ontario 

"2.  (1)  Notwithstanding  any  general  or  special  Act,  where 
land  is  expropriated  or  injurious  affection  is  caused 
by  a  statutory  atithority,  this  Act  applies. 

(2)  The  provisions  of  any  general  or  special  Act  pro- 
viding procedures  w^ith  respect  to  the  expropriation 
of  land  or  the  compensation  payable  for  land  expro- 
priated or  for  injurious  affection  that  refer  to  The 
Municipal  Act,  The  Public  Works  Act  or  any  other 
Act  shall  be  deemed  to  refer  to  this  Act  and  not  to 
The  Municipal  Act,  The  Public  Works  Act  or  other 
Act,  as  the  case  may  be. 

(3)  This  Act  does  not  apply  to  the  use  of  or  injury  to 
land  authorized  under  The  Drainage  Act,  1962-63 
for  the  purposes  of  a  drainage  w^orks  constructed 
under  that  Act  or  to  any  proceedings  in  connection 
therewith. 

(4)  Where  there  is  conflict  between  a  provision  of  this 
Act  and  a  provision  of  any  other  general  or  special 
Act,  the  provision  of  this  Act  prevails."^ 

The  Expropriations  Act,  1968-69  therefore  applies  where 
"land  is  expropriated  or  injurious  affection  is  caused  by  a 
statutory  authority." 

"Expropriate"  is  defined  as  "the  taking  of  land  without 
the  consent  of  the  owner  by  an  expropriating  authority  in 
the  exercise  of  its  statutory  powers,  but  does  not  include  the 
taking  of  land  for  the  widening  of  a  highway  where  entry  is 
deferred  under  section  338  of  the  Municipal  Act."^ 

"Injurious  affection"  is  defined  to  mean, 

"(i)  where  a  statutory  authority  acquires  part  of  the  land  of 
an  owner, 

a.  the  reduction  in  market  value  thereby  caused  to  the 
remaining  land  of  the  o^vner  by  the  acquisition  or 
by  the  construction  of  the  works  thereon  or  by  the 
use  of  the  Avorks  thereon  or  any  combination  of 
them,  and 

b.  such  personal  and  business  damages,  resulting  from 
the  construction  or  use,  or  both,  of  the  works  as  the 
statutory  authority  would  be  liable  for  if  the  con- 
struction or  use  were  not  imder  the  authority  of  a 
statute, 

*Ibid.,  s.  2. 
^Ibid.,s.  1(1)  (c). 


Chapter  lU  1811 

(ii)  where  the  statiitoiy  authority  does  not  acquire  part  of 
the  land  of  an  owner, 

a.  such  reduction  in  the  market  value  of  the  land  of 
the  owner,  and 

b.  such  personal  and  business  damages  resulting  from 
the  construction  and  not  the  use  of  the  works  by  the 
statutory  aiuhoriiy,  as  the  statutory  authority  would 
be  liable  for  if  the  construction  were  not  inidcr  the 
authority  of  a  statute, 

and  for  the  purposes  of  this  clause,  part  of  the  lands  of  an 
owner  shall  be  deemed  to  have  been  acquired  where  the 
ow^ner  from  whom  lands  are  acquired  retains  lands  con- 
tiguous to  those  acquired  or  retains  lands  of  which  the  use 
is  enhanced  by  unified  ownership  with  those  acquired;"^ 

"Land"  is  defined  as  including  any  "estate,  term,  ease- 
ment, right  or  interest  in,  to,  over  or  affecting  land."^ 

The  result  is  that  where  the  Commission  exercises 
powers  that  come  within  the  Expropriations  Act,  1968-69  that 
Act  applies  w^ith  respect  to  procedure  and  compensation,  but 
if  the  exercise  of  a  power  does  not  come  within  the  Expropria- 
tions Act,  1968-69  the  provisions  for  the  procedure  and  com- 
pensation will  still  be  governed  by  the  Power  Commission 
Act. 

The  confusion  thus  created  will  be  evident  as  we  analyze 
the  sections  conferring  power  to  acquire  land,  easements, 
privileges  and  personal  property  and  power  to  injuriously 
affect  land  whether  powers  of  expropriation  have  or  have  not 
been  exercised. 

Under  the  Power  Commission  Act,  unless  the  contrary 
intention  appears,  land  is  defined  as  "real  property  of  W' hat- 
ever  nature  or  kind,  and  includes  tenements,  hereditaments 
and  appurtenances,  and  any  estate,  term,  easement,  right  or 
interest  in,  to,  over,  under  or  affecting  land."^  This  defini- 
tion is  not  the  same  as  that  given  to  land  in  the  Expropriations 
Act,  1968-69.  For  example,  "hereditaments"  are  expressly 
included  in  the  definition  of  land  in  the  Power  Commission 
Act  but  not  in  the  Expropriations  Act,  1968-69.  The  word 
"hereditaments"  has  an  ambiguous  meaning.^    However,  it 

^Ibid.,  s.  1(1)  (e).  Italics  added. 

Ubid.,s.\{\){^). 

*R.S.O.  1960,  c.  300,  s.  1(c). 

"Challis's  Law  of  Real  Properly,  (3rd  ed..  191 1)  44  ff. 


1812  The  Hydro-Electric  Poxver  Commission  of  Ontario 

may  well  be  that  the  words  "right  or  interest  in,  to,  over  or 
affecting  land"  used  in  the  Expropriations  Act,  1968-69  are 
sufficiently  comprehensive  to  include  anything  that  comes 
within  the  definition  of  land  in  the  Power  Commission  Act. 
But  any  ambiguity  should  be  cleared  up  by  using  the  same 
definition  in  the  latter  Act  as  is  used  in  the  former. 

However,  as  we  shall  see,  there  are  powers  of  expropri- 
ation and  powers  to  take  property  without  the  owner's  con- 
sent and  powers  to  injuriously  affect  land  and  property  con- 
ferred on  the  Commission  under  the  Power  Commission  Act, 
the  Niagara  Development  Act^*^  and  the  St.  Lawrence  Devel- 
opment Act  (No.  2)^^  that  do  not  involve  the  taking  of  "land" 
as  it  is  defined  in  the  Expropriations  Act  and  include  power 
to  acquire  personal  property  without  the  owner's  consent  and 
to  exercise  privileges  which  affect  the  enjoyment  of  property 
but  do  not  involve  an  interest  in  land. 

Section  24  of  the  Power  Commission  Act 

Under  section  24  the  Lieutenant  Governor  in  Council 
may  authorize  the  Commission  ".  .  .  to  acquire  by  purchase, 
lease,  or  in  any  other  manner,  or  without  the  consent  of  the 
owner  thereof  to  enter  upon,  take  possession  of,  expropriate 
and  use,  any  land,  lake,  river,  stream  or  other  body  of  water 
or  watercourse,  and  temporarily  or  permanently  to  divert  or 
alter  the  boundaries  or  course  of  any  lake,  river,  stream  or 
other  body  of  water  or  watercourse,  or  raise  or  lower  the  level 
of  the  same  or  flood  or  overflow  any  land."^" 

The  powers  with  which  we  are  concerned,  conferred 
under  this  section,  are  divisible  into  three  parts: 

(1)  power  to  expropriate; 

(2)  power  to  use  land;  and 

(3)  power  to  divert  watercourses  and  to  raise  and  lower 
the  level  of  water  so  as  to  drain  or  flood  lands  which  may 
be  lands  neither  owned  nor  used  by  the  Commission. 

The  powers  falling  within  (2)  and  (3)  are  not  necessarily 
dependant  on  the  power  to  expropriate.  Where  the  power 
of  expropriation  is  to  be  exercised  it  must  be  authorized  by 

'"Ont.  1951,  c.  55. 

''Ont.  1952,  (2nd  session)  c.  3. 

''R.S.O.  1960,  c.  300,  s.  24(1). 


Chapter  IN  1813 

the  Lieutenant  Governor  in  Council.  But  under  the  Expro- 
priations Act,  1968-69  the  approving  authority  lor  an  expro- 
priation by  the  Commission  is  the  Minister  of  Energy  and 
Resources  Management.'^  The  result  is  the  power  cannot 
arise  until  the  authority  has  been  conlerred  by  the  Lieutenant 
Governor  in  Council  but  when  it  has  been  conferred  it  can- 
not be  exercised  without  the  approval  of  the  Minister  of 
Energy  and  Resources  Management.  This  is  an  anachronism 
but  one  that  cannot  do  any  harm. 

A  more  serious  matter  arises  under  the  section.  Under 
the  Expropriations  Act,  1968-69  where  a  statutory  authority 
acquires  part  of  the  land  of  an  owner  the  owner  shall  be  com- 
pensated for  "the  reduction  in  market  value  thereby  caused 
to  the  remaining  land  of  the  owner  by  the  acquisition  or  by 
the  construction  of  the  works  thereon  or  by  the  use  of  the 
works  thereon  or  any  combination  of  them,  and  .  .  .  such 
personal  and  business  damages,  resulting  from  the  construc- 
tion or  use,  or  both,  of  the  w^orks  as  the  statutory  authority 
would  be  liable  for  if  the  construction  or  use  were  not  under 
the  authority  of  a  statute. "^^ 

Any  rights  arising  out  of  this  provision  are  dependant  on 
the  acquisition  by  a  statutory  authority  of  part  of  the  land 
that  may  be  injuriously  affected. 

"Expropriating  authority"  is  defined  to  mean  "the 
Crown  or  any  person  empowered  by  statute  to  expropriate 
land."^^ 

"Statutory  authority"  is  defined  to  mean  "the  Crown  or 
any  person  empowered  by  statute  to  expropriate  land  or 
cause  injurious  affection,^^  as  defined  in  the  Act.^^ 

"21.  A  statutory  authority  shall  compensate  the  owner  of  land 
for  loss  or  damage  caused  by  injurious  affection. "^^ 

The  words  used  in  this  section  are  "statutory  authority"  not 
"expropriating  authority."  It  is  clear  that  where  the  statutory 
authority  does  not  acquire  part  of  the  land  of  the  owner  there 
is  no  right  to  compensation  for  injurious  affection  caused  by 

"Ont.  1968-69,  c.  36,  s.  5(4). 

^*Ibid.,  s.  1(1)  (e)  (i).  Italics  added. 

^'Ibid.,  s.  1(1)  (d). 

"/&jd.,  s.  1(1)  (m).  Italics  added. 

"See  p.  1810  supra. 

"Ont.  1968-69.  c.  36,  s.  21. 


1814         The  Hydro-Electric  Power  Commission  of  Ontario 

the  use  of  the  land.  On  the  other  hand,  if  a  statutory  authority 
(i.e.  the  Crown  or  any  person  empowered  by  statute  to  expro- 
priate land  or  cause  injurious  affection  to  land)  injuriously 
affects  land  by  the  construction  of  a  work  on  land  even  though 
no  expropriation  has  taken  place,  compensation  is  payable. 
It  is  doubtful  that  the  Legislature  intended  that  the  pro- 
visions of  the  Expropriations  Act,  1968-69  should  apply  with 
respect  to  land  injuriously  affected  through  the  construction 
of  works  by  a  statutory  authority  on  lands  that  had  been  pur- 
chased or  leased  in  the  exercise  of  a  statutory  power. 

Section  21  confers  rights  to  compensation  for  injurious 
affection  to  land  caused  by  a  statutory  authority  that  did  not 
exist  at  common  law  and  that  are  not  dependant  on  the  exer- 
cise of  the  power  to  expropriate.  The  common  law  may  be 
broadly  stated  that  in  the  absence  of  negligence  a  body  exer- 
cising statutory  powers  will  not  be  liable  for  nuisance  or 
damage  which  is  the  inevitable  result  of  carrying  out  the  statu- 
tory powers  conferred  merely  because  it  might,  by  acting  in  a 
different  way,  have  minimized  an  injury. ^^ 

Under  the  Expropriations  Act  there  is  a  clear  distinction 
drawn  between  injurious  affection  caused  by  construction  of 
a  work  and  use  of  a  work.  If  the  damages  result  from  the  con- 
struction there  is  a  right  to  compensation  even  though  there 
was  no  expropriation  of  any  lands,  but  if  the  damages  result 
from  the  use,  there  is  no  right  to  compensation  notwithstand- 
ing that  there  has  been  an  expropriation  unless  part  of  the 
lands  of  the  owner  have  been  taken. 

However,  there  is  a  wade  area  in  which  it  is  most  difficult 
to  determine  whether  damage  results  from  the  construction 
or  from  the  use  of  the  work.  For  example,  when  a  dam  is  con- 
structed the  rights  of  riparian  owners  may  be  affected  to  a 
certain  extent  but  when  the  flood  gates  are  closed,  damages 
of  another  sort  to  riparian  owners,  both  above  and  below  the 
dam,  will  result.  Do  such  damages  "result"  from  the  con- 
struction of  the  dam  or  from  the  use  of  the  dam? 

What  we  have  said  with  respect  to  the  powers  conferred 
on  the  Commission  under  the  Power  Commission  Act  to 
expropriate  land  and  to  injuriously  affect  land  apply  with 

"See  Halsbury's  Laws  of  England  (3rd  ed.)  Vol.  30,  690. 


Chapter!  If         1815 

equal  force  to  the  powers  conferred  on  the  Commission  under 
the  Power  Control  Act.-*^  That  Act  provides, 

"5.(1)  Where  the  Commission  is  satisfied  that  an  owner  is  not 
using  his  land  and  works,  or  cither  of  tliem,  to  full 
capacity  or  best  advantage  for  the  generation  or  supply 
of  power  or  is  neglecting  or  refusing  to  comply  with 
a  direction  of  the  Commission  or  the  provisions  of 
this  Act  or  the  regulations,  the  Commission  may  pur- 
chase or  acquire  and  may,  without  the  consent  of  the 
owner,  enter  upon,  take  and  expropriate  any  of  his 
lands  or  works  that  it  deems  necessary  for  the  genera- 
tion, transformation,  transmission,  distribution  or  sup- 
ply of  poAver. 

(2)  ^Vhere  lands  or  works  are  purchased,  acquired,  entered 
upon,  taken  or  expropriated  under  this  section,  the 
Commission,  in  its  discretion,  may  acquire  absolute 
title  or  a  limited  estate,  right  or  interest  therein  either 
on  a  rental  basis  or  otherwise  as  it  deems  desirable  in 
the  circumstances,  provided  that  whether  or  not  it 
acquires  absolute  title  to  any  such  land  or  works,  the 
Commission  may  use  such  land  and  works  in  such 
manner  as  it  deems  proper  and  may  divert  water  there- 
from, close,  repair,  rehabilitate,  extend,  improve  or 
reconstruct  such  works  and  may  construct  other  works 
in  lieu  thereof  or  in  addition  thereto. 

(3)  The  provisions  of  The  Power  Commission  Act  and  The 
Public  Works  Act  as  to  the  purchase,  acquisition,  entity 
upon,  taking  and  expropriation  of  land  and  the  fixing, 
payment  and  application  of  compensation  therefor 
apply  mutatis  mutandis  to  the  purchase,  acquisition, 
entry  upon,  taking  and  expropriation  of  land  and  works 
under  this  Act,  but  where  any  of  the  provisions  of  The 
Power  Commission  Act  conflict  with  any  of  the  pro- 
visions of  The  Public  Works  Act,  the  former  prevail. "^^ 

It  is  not  the  function  of  this  Commission  to  give  legal 
opinions  on  the  construction  of  involved  and  intricate  statutes 
affecting  civil  rights,  such  as  the  rights  of  riparian  owners  of 
land,  but  we  do  strongly  recommend  that  where  statutory 
power  is  given  to  aff^ect  such  rights,  the  right  to  compensation 
and  the  procedure  by  which  it  is  to  be  obtained  should  be 
clearly  set  out  in  simple  language. 

In  dealing  with  the  powers  conferred  on  the  Ontario 

^"R.S.O.  I960,  c.  302. 
'Ubid.,  s.  5. 


1816         The  Hydro-Electric  Power  Commission  of  Ontario 

Water  Resources  Commission  we  discuss  at  some  length  the 
conflict  between  the  powers  of  that  Commission  and  the 
powers  conferred  on  the  Hydro-Electric  Power  Commission 
of  Ontario  and  the  rights  of  riparian  owners. -- 

In  addition  to  the  power  to  acquire  land  without  the 
owner's  consent,  the  Commission  has  power  to  acquire 
"machinery,  plant  and  other  works  and  appliances  for  the 
transmission,  transformation,  supply  and  distribution  of 
power,"^^  The  acquisition  of  personal  property  without  the 
owner's  consent  does  not  come  within  the  Expropriations  Act, 
1968-69.  Therefore,  one  must  look  to  the  provisions  of  the 
Public  Works  Act-^  to  determine  the  right  to  compensation 
and  the  relevant  procedure.  This  creates  an  intricate  legal 
maze  which  should  be  resolved  by  clear  provisions  in  the 
Power  Commission  Act  conferring  a  right  to  compensation 
for  personal  property  taken  without  the  owner's  consent  and 
the  procedure  by  which  such  compensation  should  be  deter- 
mined. 

Section  33  of  the  Power  Commission  Act 

The  section  reads,  in  part,  as  follows: 

"(1)  Notwithstanding  anything  in  this  or  any  other  Act, 
whenever  the  Commission  has  been  authorized  by  the 
Lieutenant  Governor  in  Council  to  exercise  any  of  its 
powers  with  respect  to  conducting,  conveying,  trans- 
mitting, distributing,  supplying,  furnishing  or  deliver- 
ing power,  it  may  proceed  under  the  following  pro- 
visions of  this  section. 
(2)  The  Commission  may,  without  notice  or  without  the 
deposit  of  any  plan  or  description  or  any  prerequisite  or 
preliminary  action  or  formality,  and  with  or  without 
the  consent  of  the  owner  thereof,  enter  upon,  take 
possession  of  and  use  for  such  time  as  the  Commission 
deems  desirable  any  land  that  the  Commission  deems  to 
be  required  for  the  due  exercise  of  any  of  its  powers 
with  respect  to  conducting,  conveying,  transmitting, 
distributing,  supplying,  furnishing  or  delivering  of 
power,  and  may  construct  upon  the  land  any  works 
requisite  for  any  such  purpose. "^^ 


'p.  2109ff.  infra. 

'R.S.O.  1960,  c.  300,  s.  24(2)  (g). 

'R.S.O.  1960,  c.  338. 

'R.S.O.  1960,  c.  300,  s.  33(1)  (2). 


Chapter  IN         1817 

It  is  important  for  our  purposes  to  realize  that  where 
the  powers  of  compulsory  taking  are  exercised  under  this 
section  a  very  different  procedure  is  set  out  for  fixing  com- 
pensation than  that  set  out  for  the  taking  of  land  under 
section  24.  Ikit  nevertheless,  certain  of  the  powers  conferred 
under  section  33  are  to  acquire  "an  easement,  right  or  interest 
in,  to,  over  or  affecting  land"  and  hence  they  are  exercised 
with  respect  to  the  compulsory  taking  of  land  within  the 
definition  of  that  term  in  the  Expropriations  Act,  1968-69. 
But  the  procedure  under  section  33  for  fixing  compensation 
is  by  means  of  a  board  of  valuation  with  certain  rights  of 
appeal  to  the  Ontario  Municipal  Board  or  a  member  thereof, 
or  a  judge  of  the  Supreme  Court  or  of  a  county  or  district 
court  and  thence  to  the  Court  of  Appeal.-*'  With  respect  to 
easements  or  rights  or  interests  in  or  over  or  affecting  land  the 
section  conflicts  with  the  Expropriations  Act,  1968-69  and 
that  Act  would  apply. 

On  the  other  hand,  the  Commission  may  under  this  sec- 
tion make  use  of  land  for  temporally  purposes  that  do  not 
involve  the  acquisition  of  a  right  or  interest  in  the  land  of 
such  a  nature  that  the  Expropriations  Act,  1968-69  would 
apply.  In  many  cases  the  use  acquired  is  of  a  trivial  nature 
and  in  some  cases  even  the  easements  acquired  are  of  a  trivial 
nature  such  as  the  insertion  of  anchor  posts  for  guy  wires.  The 
provisions  of  the  Expropriations  Act,  1968-69  would  appear 
to  be  unsuitable  for  such  cases.  Consideration  should  be  given 
to  providing  expressly  in  the  Power  Commission  Act  that  the 
valuation  procedure  set  out  in  section  33,  or  some  simpler  pro- 
cedure, should  be  applicable  for  fixing  compensation  for  small 
claims  notwithstanding  the  provisions  of  the  Expropriations 
Act,  1968-69.  The  right  of  appeal  should  be  to  the  Land 
Compensation  Board. 

Where  substantial  damage  arises  out  of  the  exercise  of 
powers  conferred  under  section  33  the  damages  should  be 
fixed  by  the  Land  Compensation  Board. 

The  Niagara  Development  Act,  1 95 1 

The  definition  of  land  in  this  Act^^  is  slightly  different 
from  the  definition  of  land  in  the  Power  Commission  Act. 

''Ibid.,  ss.  33(7),  34. 
"Ont.  1951,  c.  55. 


1818         The  Hydro-Electric  Poiuer  Commission  of  Ontario 

Power  is  conferred  on  the  Commission  not  only  to  expropri- 
ate land  but  to  use  land  and  divert  water.  What  we  have  said 
and  the  recommendations  made  with  reference  to  such  powers 
conferred  on  the  Commission  under  the  Power  Commission 
Act  apply  with  equal  force  to  powers  conferred  under  this 
Act. 

The  St.  Lawrence  Development  Act,  1952  (No.  2) 

The  definition  of  "land"  in  this  Act^^  is  identical  with 
the  definition  of  "land"  used  in  the  Expropriations  Act. 

Power  is  conferred  on  the  Commission  to  "acquire  for 
the  purposes  of  this  Act  by  purchase,  lease  or  otherwise  or 
without  the  consent  of  the  owner,  enter  upon,  take  possession 
of,  expropriate  and  use  such  land,  waters,  water  privileges, 
water  powers,  access  and  other  rights,  buildings  and  works  as 
in  its  opinion  are  necessary,  and  use,  utilize,  develop  and  im- 
prove them  .  .  .".-® 

Subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council  and  for  the  purposes  of  the  Act  the  Commission  may 
"determine  that  a  claim  for  compensation  made  under  this 
Act  is  to  be  regarded  as  a  claim  in  respect  of  an  interest  in 
land  or  an  interest  in  property  where  such  may  not  be  the 
case  in  law."^'' 

This  is  an  extraordinary  power.  It  is  questionable  that 
the  Legislature  can  confer  on  any  Board  or  Commission 
appointed  by  it  power  to  declare  "a  claim  in  respect  of  an 
interest  in  land"  to  be  an  interest  in  property  or  to  declare  a 
claim  in  respect  to  an  interest  in  property  to  be  a  claim  in 
respect  to  an  interest  in  land  "where  such  may  not  be  the  case 
in  law."  In  any  case  this  is  not  a  power  that  should  be  con- 
ferred on  a  tribunal. 

A  procedure  is  laid  out  in  the  statute  whereby  compen- 
sation for  land  taken  or  injuriously  afiiected  or  property 
injuriously  affected  in  carrying  out  the  purposes  of  the  Act 
may  be  fixed.  Where  land  is  taken  or  injuriously  affected 
there  is  conflict  with  the  Expropriations  Act  and  its  provisions 
would  prevail.  Where  property  is  taken  or  injuriously 
affected  there  would  be  no  such  conflict  and  the  procedure 

"'Ont.  1952,  (2nd  session)  c.  3. 
'Ubid.,  s.  8(1)  (d). 
^"Ibid.,  s.  8(2)  (d). 


Chapter  11 -f         ISl'J 

laid  down  in  the  Act  would  prevail,  i.e.,  compensation  would 
be  fixed  by  the  Ontario  Municipal  Board.*' 

That  being  true,  the  Commission  may  by  exercising  its 
power  to  declare  a  claim  for  land  to  be  a  claim  for  property 
or  a  claim  for  property  to  be  a  claim  for  land  (if  it  has  the  con- 
stitutional power  to  do  so)  determine  which  tribunal  shall 
fix  compensation,  the  Land  Compensation  Board  or  the 
Ontario  Municipal  Board. 

Section  8(2) (d)  should  be  repealed. 

The  Act  which  was  passed  for  the  purpose  of  the  develop- 
ment of  the  St.  Lawrence  Waterway  should  be  completely 
revised,  if  powers  are  to  be  exercised  under  it  in  the  future,  to 
be  consistent  with  our  recommendations  concerning  the 
Power  Commission  Act  and  to  remove  inconsistencies  with 
the  Expropriations  Act,  1968-69. 

Recovery  of  Cost  of  Construction 

Section  42  is  in  many  respects  the  reverse  of  those  con- 
ferring powers  to  expropriate  and  injuriously  affect  land. 
Where  the  Commission  constructs  any  work  or  improvements 
upon  any  lake,  river,  stream  or  other  body  of  water,  and  any 
person  or  municipal  corporation  owning  a  water  power  or 
water  power  site  is  benefited  by  the  work  of  the  Commission, 
a  proportion  of  the  cost  of  the  Commission's  w^ork  may  be 
assessed  against  the  beneficiary.  In  case  of  dispute  the  portion 
to  be  borne  by  the  respective  parties  is  fixed  by  an  order  of  a 
judge  of  the  Supreme  Court  or  a  judge  of  a  county  or  district 
court.  A  party  affected  by  the  order  may  with  the  consent  in 
writing  of  the  Commission  appeal  to  the  Court  of  Appeal. ^^ 

This  is  a  most  extraordinary  provision.  Provision  for  an 
appeal  with  the  consent  of  the  party  in  whose  favour  an  order 
has  been  made  cannot  be  said  to  be  a  right  of  appeal. 

The  words  "with  the  consent  in  writing  of  the  Com- 
mission" should  be  struck  out. 

The  procedure  for  fixing  the  proportion  of  the  cost  to  be 
borne  by  the  respective  parties  is  in  the  nature  of  an  arbitra- 
tion and  the  jurisdiction  should  be  conferred  on  the  Land 

''Ibid.,  s.  15. 

"R.S.O.  1960,  c.  300,  s.  42(6). 


1820         The  Hydro-Electric  Power  Comynission  of  Ontario 

Compensation  Board. ^^  In  any  case,  if  the  jurisdiction  is  to  be 
exercised  by  a  judge,  the  provisions  in  the  Act  that  "the  judge 
shall  be  paid  fees  and  expenses  as  are  fixed  by  the  Lieutenant 
Governor  in  Council"^^  are  in  conflict  with  the  Judges  Act^^ 
and  should  be  repealed.  Provisions  such  as  this  were  fully 
dealt  with  and  condemned  in  Report  Number  1.^^ 

After  the  proportions  of  the  cost  of  the  work  that  the 
respective  parties  are  to  bear  have  been  fixed,  "the  Commis- 
sion shall,  subsequent  to  the  order  of  the  judge,  annually  fix 
and  determine  the  cost,  charges  or  expenses  incurred  by  it 
from  time  to  time  in  the  operation,  maintenance,  repair  and 
renewal  of  such  works  and  shall  apportion  and  charge  the 
same  against  the  parties  in  the  proportions  fixed  by  the  order 
of  the  judge  .  .  .  and  the  amounts  so  charged  are  payable  on 
demand  recoverable  in  the  manner  hereinafter  provided."^" 
The  amount  so  found  to  be  payable  by  a  municipal  corpora- 
tion may  be  recovered  by  the  Commission  as  in  the  case  of  a 
charge  for  any  other  service.  The  amount  recoverable  from 
any  other  corporation  or  company  or  individual  constitutes  a 
debt  due  to  the  Commission  and  is  recoverable  in  any  court 
of  competent  jurisdiction  from  the  owners  of  the  land  bene- 
fited and  a  lien  is  constituted  in  favour  of  the  Commission  on 
the  lands.^^ 

These  provisions  create  a  process  by  which  a  liability  is 
created  without  any  procedural  rules.  In  addition,  a  lien  may 
be  created  against  lands  without  any  provision  for  registration 
so  as  to  provide  notice  to  third  parties.  If  the  jurisdiction  to 
fix  the  proportions  in  which  the  costs  are  to  be  borne  is  con- 
ferred on  the  Land  Compensation  Board  it  will  have  its  rules. 
In  any  case,  the  lien  should  be  invalid  as  against  third  parties 
who  take  without  notice. 

The  section  contains  a  curious  provision  for  a  right  of 
periodic  review  with  respect  to  the  cost  of  operations.  The 
order  of  the  judge  or  the  Court  of  Appeal  fixing  the  propor- 
tions is  final  and  binding  "unless  and  until  it  appears  to  the 
Commission  that  owing  to  change  of  circumstances  or  condi- 

"=Expropriations  Act,  1968-69,  Ont.  1968-69,  c.  36,  s.  28(1). 

'*R.S.O.  1960,  c.  300,  s.  42(4). 

*'R.S.C.  1952,  c.  159  as  amended. 

'^^Chapters  45  and  46. 

"R.S.O.  1960,  c.  300,  s.  42(8). 

"'Ibid.,  s.  42(10). 


Chapter  n-f  1821 

tions  in  respect  of  such  works  or  improvements  it  is  equitable 
that  there  should  be  a  readjustment  of  the  proportions  there- 
tofore fixed  by  the  order  of  the  judge. "^° 

The  result  is  that  no  matter  liow  tmjust  the  original 
order  has  become  by  reason  of  change  of  circumstances  the 
injured  party  has  no  right  to  apply  for  readjustment  unless 
and  until  it  appears  to  the  Commission  that  there  is  a  change 
of  circumstances  that  renders  the  original  order  inecjuitable. 
When  it  appears  to  the  Commission  that  such  is  the  case, 
"upon  the  application  of  any  person  liable  to  contribute  to  the 
cost  of  such  works  or  improvements,  made  with  the  consent 
in  zvriting  of  the  Commission,  the  judge  may  make  further 
inquiry  and  may  readjust  such  proportions  to  be  thereafter 
applied  in  such  manner  as  he  deems  just  and  equitable,  sub- 
ject to  appeal  as  hereinbefore  provided.""*^ 

In  summary,  the  injured  party  has  no  right  to  apply 
until  the  Commission  has  come  to  the  conclusion  that  the 
original  order  is  inequitable  and  can  only  apply  with  the 
written  consent  of  the  Commission  and  in  case  there  is  a 
readjustment  he  can  only  appeal  with  the  written  consent  of 
the  Commission. 

The  mere  statement  of  these  provisions  is  sufficient  to 
condemn  them  as  unjustified  encroachments  on  the  civil 
rights  of  the  individual.  A  party  affected  by  an  order  fixing 
the  proportions  of  costs  under  section  42  should  have  a  right 
to  apply  to  the  tribunal  authorized  to  make  the  order  to  show 
that  the  proportions  are  inequitable  or  that  by  reason  of 
change  of  circumstances  there  should  be  a  readjustment. 

In  determining  the  proportions  in  which  the  original 
cost  of  the  works  should  be  borne  and  the  costs  of  charges  and 
expenses  incurred  annually  "the  cost  of  the  works  or  improve- 
ments shall  be  deemed  to  include  all  expenditures,  charges 
and  expenses  as  fixed  by  the  Commission. "^^ 

This  means  that  it  is  not  the  tribunal  that  fixes  the 
amount  of  the  costs  incurred  annually  in  arriving  at  the  order 
fixing  the  apportionment  but  it  is  the  Commission  itself. 

If  there  is  a  dispute  with  respect  to  the  Commission's 
costs  it  should  be  the  function  of  the  arbitral  tribunal  to  fix 


"Uhid.,  s.  42(12).  Italics  added. 

'"Ibid. 

"Ibid.,  s.  42(5). 


1822         The  Hydro-Electric  Poiuer  Commission  of  Ontario 

those  costs  when  fixing  the  proportions  in  which  they  should 
be  borne.  This  section  should  be  completely  revised. 

DISPOSITION  OF  FINES 

The  provision  in  section  46  that  fines  recovered  for  con- 
travening the  prohibition  against  attaching  anything  to  the 
property  of  the  Commission  are  to  be  paid  over  to  the  Com- 
mission is  contrary  to  the  recommendations  contained  in 
Report  Number  1  with  regard  to  disposition  of  fines. ^^  The 
maximum  fine  is  $10.00.  Quite  apart  from  the  principles  dealt 
with  in  Report  Number  1  concerning  the  person  conducting 
a  prosecution  having  a  financial  interest  in  penalties  recov- 
ered in  the  courts,  the  bookkeeping  nuisance  imposed  on  the 
administrative  officers  of  the  courts  under  this  section  con- 
stitutes an  unwarranted  public  expense.  There  is  no  reason 
why  such  fines  should  not  be  paid  over  and  become  part  of 
the  Consolidated  Revenue  Fund,  This  criticism  is  equally 
applicable  to  section  97(12)  w^hich  provides  that  fines  recov- 
ered for  offences  against  that  section  should  be  paid  over  to 
the  Commission. ^^ 

ACTIONS  AGAINST  THE  COMMISSION  OR 
MEMBERS  THEREOF 

Section  7(5)  of  the  Act  provides: 

"Without  the  consent  of  the  Attorney  General  no  action 
of  any  kind  ^vhatsoever  shall  be  brought  against  the  Commis- 
sion, and  without  the  consent  of  the  Attorney  General  no 
action  of  any  kind  whatsoever  shall  be  brought  against  any 
member  of  the  Commission  for  anything  done  or  omitted 
by  him  in  the  exercise  of  his  office."^* 

This  provision  gives  the  Commission  greater  protection  than 
has  been  enjoyed  by  the  Government  itself  since  the  enact- 
ment of  the  Proceedings  Against  the  Crown  Act.^^ 

That  Act  provides: 

"A  claim  against  a  corporation  of  the  Cro^vn  that,  if  this  Act 
had  not  been  passed,  might  be  enforced,  subject  to  the  con- 


"pp.  913-14  supra. 
"R.S.O.  1960,  c.  305,  s.  97(12). 
*'Ibid.,  s.  7(5). 
"Ont.  1962-63,  c.  109. 


Chapter  IN         1823 

sent  of  a  servant  of  the  Crown,  may  be  enforced  as  of  right 
without  such  consent,"'*^ 

This  provision  must  be  read  with  the  Crown  Agency  Act*^ 
which  we  quote  in  full. 

"In  this  Act,  'Crown  agency'  means  a  board,  commission, 
railway,  public  utility,  university,  manufactory,  company  or 
agency  owned,  controlled  or  operated  by  Her  Majesty  in 
right  of  Ontario,  or  by  the  Government  of  Ontario,  or  under 
the  authority  of  the  Legislature  or  the  Lieutenant  Governor 
in  Council. 

A  Cro^vn  agency  is  for  all  its  purposes  an  agent  of  Her 
Majesty  and  its  powers  may  be  exercised  only  as  an  agent  of 
Her  Majesty. 

This  Act  does  not  affect  The  Hydro-Electric  Power  Com- 
mission of  Ontario. "^^ 

It  has  been  judicially  decided  that  the  Hydro-Electric 
Power  Commission  is  not  a  department  of  Government  and 
it  does  not  come  within  the  definition  of  a  Crown  agency.^^ 
The  Commissioners  cannot  be  said  to  be  in  any  way  servants 
of  the  Crown. 

Section  7(5)  of  the  Power  Commission  Act  would  appear 
to  be  unaffected  by  the  Proceedings  Against  the  Crown  Act 
and  therefore  the  consent  of  the  Attorney  General  is  still 
required  before  any  action  may  be  brought  against  the  Com- 
mission or  any  member  thereof  unless  it  can  be  considered  a 
corporation  of  the  Crow^n  (whatever  that  term  means). 

Any  question  as  to  the  right  of  an  individual  to  bring  an 
action  against  the  Commission  or  its  members  without  a  fiat 
from  the  Attorney  General  should  be  made  clear  by  legisla- 
tion. 

In  our  interview  with  the  then  Chairman  of  the  Com- 
mission he  agreed  that  the  Commission  should  not  have  any 
greater  protection  against  action  than  that  which  is  given  to 
the  Crown  and  Crown  officials. 

COMPLAINTS  AS  TO  RATES  CHARGED 

Where  a  complaint  is  made  that  a  municipal  corpora- 
tion, company  or  person  receiving  pow'er  from  the  Commis- 

*''Ibid.,  s.  4.  We  discuss  section  7(5)  in  relation  to  the  provisions  of  the  Pro- 
ceedings against  the  Crown  Act  in  Chapter  131. 
«'R.S.O.  1960,  c.  81. 
'^Ibid.,  ss.  1,2  and  3. 
^'St.  Catharines  V.  H.E.P.C.  of  Ontario,  [1930]  1  D.L.R.  409  (P.C). 


1824         The  Hydro-Electric  Power  Commissioti  of  Ontario 

sion  is  charging  a  rate  that  is  excessive  or  unfair  or  that  a 
municipal  corporation  is  making  use  of  the  powers  conferred 
on  it  under  the  Act  for  the  purpose  of  granting  a  bonus  by 
supplying  power  below  cost  "the  chairman  of  the  Commission 
may  appoint  a  time  and  place  at  which  the  Commission  or 
some  member  thereof  will  hear  and  determine  the  matter  of 
the  complaint,  and  such  notice  of  the  appointment  as  the 
chairman  directs  shall  be  given  by  the  secretary  of  the  Com- 
mission to  such  persons  as  the  chairman  directs. "°" 

The  Commission  or  a  member  thereof  determines  the 
matter  and  may  allow  or  dismiss  the  complaint  and  may  direct 
that  the  by-law  or  agreement  in  question  be  amended  or  "may 
make  such  order  as  seems  meet."°^ 

Such  power  of  final  decision  ought  not  to  be  exercised 
by  one  man.  It  should  either  be  exercised  by  the  Commission 
or  if  it  is  exercised  by  one  member  of  the  Commission  there 
should  be  a  right  of  appeal  to  the  Commission. 

The  Commission  or  the  member  appointed  to  hear  the 
complaint  has  all  the  powers  that  may  be  conferred  on  a 
commissioner  under  the  Public  Inquiries  Act.  This  provision 
is  contrary  to  the  recommendations  made  in  Report  Num- 
ber P^  with  respect  to  powers  to  be  conferred  on  those  exer- 
cising powers  of  inquiry.  If  the  Public  Inquiries  Act  is  revised 
as  recommended  this  matter  will  be  corrected. 

CONTROL  OF  ENERGY 

Under  the  Power  Control  Act  the  Commission  has  power 
to  regulate  and  control  the  generation,  transformation,  trans- 
mission, distribution,  supply  and  use  of  power  in  Ontario. ^^ 
The  definition  of  power  includes  "energy". ^^  Specific  regula- 
tory powers  over  the  transmission,  distribution  and  supply 
of  gas  and  oil  are  conferred  on  the  Ontario  Energy  Board 
under  the  Ontario  Energy  Board  Act.^^  Under  the  Power 
Control  Act  its  provisions  prevail  in  the  event  of  conflict  with 

'"R.S.O.  1960,  c.  300,  s.  96(1). 
"/6/rf.,  s.  96(2). 
^"pp.  446-465  sxipra. 
'^'R.S.O.  1960,  c.  302,  s.  2. 
''Ibid.,s.  1(d). 
^'Ont.  1964,  c.  74. 


Chapter  11  f         1825 

any  other  Act^*'  while  under  the  Ontario  Energy  Board  Act  its 
provisions  prevail  in  the  event  of  conflict  with  any  other  Act."^^ 
Notwithstanding  that  as  a  matter  of  law  the  provisions 
of  the  latter  Act  would  pre\  ail  the  Power  Control  Act  should 
be  amended  to  resolve  this  apparent  conflict. 

RECOMMENDATIONS 

1.  The  definition  of  land  in  relation  to  expropriation 
should  be  the  same  in  the  Power  Commission  Act  as  that 
used  in  the  Expropriations  Act,  1968-69. 

2.  The  rights  of  riparian  OAvners  to  compensation  for  in- 
juries suffered  by  reason  of  the  construction  and  oper- 
ation of  works  of  the  Commission  and  the  procedure  by 
which  it  is  to  be  obtained  should  be  clearly  stated  in  the 
Act. 

3.  The  right  to  compensation  for  personal  property  taken 
without  the  owner's  consent  should  be  clearly  stated  in 
the  Act  and  the  procedure  by  which  the  compensation  is 
to  be  determined  should  be  set  out. 

4.  The  conflict  between  the  procedure  prescribed  for  fixing 
compensation  for  "easements,  rights  to,  over  or  affecting 
land"  acquired  under  section  33  and  that  provided  by 
the  Expropriations  Act,  1968-69  should  be  resolved. 

5.  A  simple  procedure  should  be  provided  to  fix  compensa- 
tion where  small  claims  are  made  in  respect  of  the  powers 
exercised  under  section  33.  The  right  of  appeal  should 
be  to  the  Land  Compensation  Board. 

6.  Where  substantial  damage  arises  out  of  the  exercise  of 
powers  conferred  under  section  33  the  compensation 
should  be  fixed  by  the  Land  Compensation  Board. 

7.  Where  any  person  or  municipality  has  been  assessed  for 
a  portion  of  the  construction  of  a  work  under  section  42 
he  or  it  should  have  a  right  of  appeal  irrespective  of  the 
consent  of  the  Commission.  The  words  "with  the  consent 
in  writing  of  the  Commission"  should  be  struck  out. 


"R.S.O.  1960,  c.  302,  s.  7(2). 
^Ont.  1964,  c.  74,  s.  56(1). 


1826         The  Hydro-Electric  Power  Commission  of  Ontario 

8.  The  provision  in  section  42  that  the  judge  fixing  the 
proportion  of  the  cost  of  a  work  shall  be  paid  fees  should 
be  repealed. 

9.  A  party  affected  by  an  order  made  under  section  42 
should  have  a  right  to  apply  to  the  Land  Compensation 
Board  or  the  tribunal  making  the  order  for  a  review  of 
the  order  where  owing  to  the  change  of  circumstances 
or  conditions  it  is  equitable  that  there  should  be  a  read- 
justment of  the  proportions.  Whether  there  is  a  change 
of  circumstances  or  conditions  ought  not  to  be  a  matter 
to  be  decided  by  the  Commission. 

10.  An  unregistered  claim  for  a  lien  under  section  42  should 
not  be  enforceable  against  innocent  purchasers  for  value 
without  notice. 

11.  In  case  of  dispute  as  to  the  cost  of  the  work  under  section 
42(5)  the  Commission  should  be  required  to  prove  to  the 
satisfaction  of  the  tribunal  fixing  the  cost  what  "the 
expenditures,  charges  and  expenses"  were. 

12.  Section  42  should  be  completely  revised. 

13.  Fines  recoverable  under  the  Act  should  not  be  paid  over 
to  the  Commission  but  should  form  part  of  the  Consoli- 
dated Revenue  Fund. 

14.  Section  7(5)  requiring  the  consent  of  the  Attorney  Gen- 
eral before  an  action  may  be  brought  against  the  Com- 
mission or  any  member  of  the  Commission  for  anything 
done  or  omitted  by  him  in  the  exercise  of  his  office 
should  be  repealed. 

15.  All  conflict  between  the  Power  Commission  Act,  the 
Power  Control  Act  and  the  Ontario  Energy  Board  Act, 
should  be  resolved  by  appropriate  legislation. 

16.  Section  96(1)  should  be  amended  to  provide  that  the 
power  thereunder  should  be  exercised  by  the  Commis- 
sion or  if  it  is  to  be  exercised  by  one  member  thereof 
that  there  be  a  right  of  appeal  to  the  Commission. 

17.  Where  applicable  the  recommendations  made  with  refer- 
ence to  the  exercise  of  powers  by  the  Commission  under 


Chapter  IN         1827 

the  Power  Commission  Act  apply  with  ecjual  force  to  the 
provisions  of  the  Niagara  Development  Act,  1951. 

18.  Section  8(2)(d)  of  the  St.  Lawrence  Development  Act, 
1952  (No.  2)  should  be  repealed. 

19.  The  St.  Lawrence  Development  Act,  1952  (No.  2)  should 
be  completely  revised  if  powers  are  to  be  exercised  under 
it  in  the  future  to  be  consistent  with  our  recommenda- 
tions concerning  the  Power  Commission  Act  and  to  re- 
move inconsistencies  with  the  Expropriations  Act. 


CHAPTER  115 


The  Liquor  Control  Board 
of  Ontario 


INTRODUCTION 

Ihe  liquor  trade  in  Ontario  is  controlled  through  two 
boards— the  Liquor  Control  Board  of  Ontario  and  the 
Liquor  Licence  Board  of  Ontario  which  exercise  the  powers 
conferred  on  them,  respectively,  under  the  Liquor  Control 
Act^  and  the  Liquor  Licence  Act^  and  the  amendments 
thereto. 

In  this  Chapter  we  shall  consider  the  Liquor  Control 
Board  and  the  provisions  of  the  Act  under  which  it  operates. 
In  the  next  Chapter  we  shall  deal  with  the  Liquor  Licence 
Board  and  the  Act  under  which  it  operates. 

It  is  something  of  a  misnomer  to  call  the  Liquor  Control 
Board  a  "Control  Board". 

The  main  functions  of  the  Board  are  to  buy  and  sell 
liquor  but  it  exercises  some  control  over  the  supply  of  liquor 
for  consumption  in  Ontario— apart  from  its  distribution 
through  licensed  outlets  for  the  sale  of  liquor  by  private  enter- 
prise. 

The  purpose  of  the  Act  and  the  regulations  is  stated  to 
be  "to  prohibit  transactions  in  liquor  except  under  Govern- 
ment control  through  the  instrumentality  of  the  Board,  and 
to  provide  the  means  by  which  such  Government  control  shall 
be  made  effective."^ 


^R.S.O.  1960,  c.  217. 
'R.S.O.  1960,  c.  218. 
'R.S.O.  1960,  c.  217,  s.  142,  as  re-enacted  by  Ont.  1965,  c.  58,  s.  78. 

1828 


Chapter  115         1829 

Liquor  includes  any  "alcoholic,  spirituous,  vinous,  fer- 
mented malt  or  other  liquid,  any  combination  of  liquids  or 
mixed  liquids  a  part  of  which  is  alcoholic,  spirituous,  vinous 
or  fermented,  any  drink  or  drinkable  licjuid  containing 
alcohol  and  includes  wine,  Ontario  wine  and  beer.""* 

The  Board  consists  of  the  Chief  Commissioner  who  is  the 
chairman  of  the  Board,  the  Deputy  Chief  Commissioner  and 
one  other  member.^ 

The  Board  does  not  hold  regular  meetings  and  it  keeps 
no  minutes.  From  our  discussion  with  the  chairman  of  the 
Board  and  its  solicitor  it  is  difficult  to  see  on  what  legal  basis 
many  of  the  statutory  powders  conferred  on  it  are  exercised. 

POWERS  OF  THE  BOARD 

The  powers  of  the  Board  may  be  roughly  divided  into 
two  classes: 

(1)  power  to  merchandise  liquor  in  Ontario,  and 

(2)  subject  to  the  provisions  of  the  Liquor  Licence  Act  and 
the  powers  of  the  Liquor  Licence  Board,  power  to 
exercise  control  over  the  sale  and  consumption  of 
liquor  in  Ontario. 

We  are  not  concerned  with  the  merchandising  functions 
of  the  Board.  So  far  as  these  are  concerned  the  Board  is  set  up 
to  carry  out  the  policy  of  the  Government.  The  policy  is  basi- 
cally one  of  public  ownership  of  that  branch  of  the  distribu- 
tion of  liquor  in  the  Province  not  conducted  through  outlets 
licensed  under  the  Liquor  Licence  Act.  The  Board  imports 
liquor  and  buys  from  local  manufacturers  and  sells  to  the 
public  through  its  stores  and  to  those  holding  licences  under 
the  Liquor  Licence  Act.  It  is  not  an  independent  Board  in 
the  true  sense.  It  is  more  in  the  nature  of  a  Board  created  to 
carry  out  the  policy  of  the  Government  as  an  agency  for  the 
Government  sale  of  liquor  than  a  Liquor  Control  Board. 
However,  it  does  exercise  some  powers  of  control  affecting  the 
rights  of  the  individual.  It  is  with  these  powers  that  we  are 
particularly  concerned. 

*Ibid.,  s.  1(1)  (j)  as  amended  by  Ont.  1965,  c.  58,  s.  1(2). 
^Ibid.,  ss.  2,  3. 


1830         The  Liquor  Control  Board  of  Ontario 

SUBORDINATE  LEGISLATIVE  POWERS 

The  Board  may  exercise  its  powers  either  by  doing  cer- 
tain specific  things,  such  as  buying,  importing,  possessing  and 
selling  liquor,  determining  the  municipalities  within  which 
Government  stores  shall  be  established,  maintaining  ware- 
houses, appointing  officials*^  or  by  making  regulations  with 
the  approval  of  the  Lieutenant  Governor  in  Council.'^  "The 
Board  may  by  order  exempt  from  [the]  Act  any  product  or 
class  of  product  that  contains  alcohol  and  that  is  not,  in  the 
opinion  of  the  Board,  w^hat  is  commonly  known  as  spirituous 
liquor,  wine,  Ontario  wine,  or  beer."^  This  is  a  verj'  broad 
power.  It  is  open  to  the  criticism  that  the  power  is  based  on 
"the  opinion  of  the  Board"  for  its  existence.  It  is  a  power 
conferred  on  an  appointed  body  to  amend  a  statute  passed  by 
the  Legislature.  It  is  hard  to  understand  why  this  power 
should  be  conferred  on  the  Board.  We  have  commented  on 
the  provisions  of  statutes  giving  powder  to  the  Lieutenant 
Governor  in  Council  to  pass  regulations  in  effect  amending 
the  statute  conferring  the  power.^  A  fortiori,  the  Board 
ought  not  to  have  power  without,  at  least,  the  approval  of  the 
Lieutenant  Governor  in  Council,  to  make  an  order  exempt- 
ing products  froin  the  Act  which  come  within  its  terms.  It 
may  be  that  the  power  is  a  necessary  one.  If  it  is  not,  the 
section  should  be  repealed.  If  it  is  necessary,  an  order  of  the 
Board  with  respect  thereto  should  be  subject  to  the  approval 
of  the  Lieutenant  Governor  in  Council.  In  any  event,  such 
orders  should  come  under  the  Regulations  Act  and  be  made 
public  and  subject  to  all  of  its  provisions. 

It  is  not  to  be  overlooked  that  orders  made  by  the  Board, 
as  distinct  from  regulations,  are  not  subject  to  any  compulsory 
publicity  and  according  to  the  procedure  followed  by  the 
Board  they  will  not  even  be  recorded  in  minutes. 

The  Board  is  given  pow^r  to  make  regulations  with  the 
approval  of  the  Lieutenant  Governor  in  Council.^"  Among 
other  things  this  power  extends  to  "prescribing  the  tax,  fees 
and  assessments  payable  by  any  brewer,  distiller  or  producer 

'Ibid.,  s.  8(1)  as  amended  by  Ont.  1965,  c.  58,  s.  2. 
'Ibid.,  s.  9,  as  amended  bv  Ont.  1965,  c.  58,  s.  3. 
^Ibid.,  s.  8(2). 
*pp.  345-48  supra. 
^''R.S.O.  1960,  c.  217,  s.  9  as  amended  by  Ont.  1965,  c.  58,  s.  3. 


Chapter  113  18:51 

of  Ontario  wine.""  Fixing  licence  fees  by  regulation  is  not 
objectionable  provided  that  the  purpose  of  the  fees  is  clearly 
expressed. ^^  Levying  taxation  or  assessment  by  regulation  is 
objectionable  and  is  contrary  to  our  recommendations  made 
in  Report  Number  1.'^ 

LICENSING 

There  are  several  provisions  in  the  Liquor  Control  Act 
which  relate  to  licensing.  For  convenience  we  summarize 
those  particularly  relevant  to  this  inquiry. 

"47.(1)  The  Board  with  the  approval  of  the  Minister  and  subject 
to  this  Act  and  the  regulations,  may  issue  a  licence  to  any 
brewer  duly  authorized  under  any  Act  of  the  Parliament 
of  Canada  authorizing  the  brewer, 

(a)    to  keep  for  sale  and  sell  beer  to  the  Board;  .  .  . 

(c)   to  keep  for  sale  and  sell  beer  under  the  supervision 

and  control  of  the  Board  and  in  accordance  ^vith  this 

Act  and  the  regulations."^^ 

Similar  provisions  respecting  the  licensing  of  distillers 
are  contained  in  section  53  and  respecting  the  licensing  of 
producers  of  Ontario  wine  in  section  53a. ^^ 

"55.  The  Board  may,  for  any  cause  that  it  deems  sufficient  after 
a  hearing,  cancel  or  suspend  any  licence  issued  to  a  brewer, 
to  a  producer  of  Ontario  wine  or  to  a  distiller,  and  all  right 
of  the  brewer,  producer  of  Ontario  wine  or  distiller  to  sell 
or  deliver  liquor  thereunder  is  cancelled  or  suspended,  as 
the  case  may  be."^*^ 

"29.  Notwithstanding  anything  in  this  Act  or  the  regulations, 
the  Board  is  not  compellable  to  issue  any  permit  or  licence 
under  this  Act  or  the  regulations,  and  it  may  refuse,  suspend 
or  cancel  any  such  permit  or  licence,  but  only  after  the 
interested  person  has  bee?!  given  an  opportunity  of  being 
heard."^' 

The  italicized  words  were  added  in  1965,  in  place  of  "in 
its  discretion,  and  it  is  not  obliged  to  give  any  reason  or 
explanation  for  such  refusal,  suspension  or  cancellation." 

"/6/rf.,  s.  9(2)  (o). 

^^See  p.  353  supra. 

"pp.  351-53  supra. 

"R.S.O.  1960,  c.  217,  s.  47(l)(a)(c)  as  re-enacted  by  Ont.  1965,  c.  58,  s.  27. 

"/b/rf.,  s.  53a  as  enacted  by  Ont.  1965,  c.  58,  s.  32. 

^'Ibid.,  s.  55  as  re-enacted  by  Ont.  1965,  c.  58,  s.  33. 

"Ibid.,  s.  29  as  amended  by  Ont.  1965,  c.  58,  s.  15.  Italics  added. 


1832         The  Liquor  Control  Board  of  Ontario 

"28.  Subject  to  the  regulations,  the  Board  may  require  the 
holder  of  a  licence  for  the  sale  of  liquor  to  give  such  security 
and  to  comply  with  such  other  provisions  as  the  Board  deems 
necessary  or  desirable  in  order  to  secure  the  due  observance 
of  this  Act  and  the  regulations."^^ 

"55a.  Any  holder  of  a  licence  or  permit  that  is  cancelled  under 
section  29  or  55  may  appeal  from  the  order  of  the  Board 
cancelling  the  licence  or  permit,  and  section  140  applies 
mutatis  mutandis  to  any  such  appeal. "^^ 

Section  140  of  the  Act  enables  a  person  "convicted" 
under  the  Act,  subject  to  certain  conditions,  to  appeal  from 
the  conviction  to  a  judge  of  a  county  or  district  court  of  the 
county  or  district  in  which  the  conviction  is  made,  sitting  in 
chambers  without  a  jury. 

The  foregoing  provisions  indicate  the  nature  of  the 
licensing  powers  under  the  Act. 

The  absence  of  any  standards  or  factors  controlling 
licensing  decisions  made  under  sections  47,  53  and  53a  to- 
gether with  the  provisions  that  the  Board  "is  not  compellable 
to  issue  any  permit  or  licence  under  this  Act  or  the  regula- 
tions, and  it  may  refuse,  suspend  or  cancel  any  such  permit 
or  licence"-*'  and  that  it  may  "for  any  cause  that  it  deems 
sufficient  .  .  .  cancel  or  suspend  any  licence  issued  to  a 
brewer,"^^  etc.  create  licensing  powers  sharply  at  variance 
with  the  recommendations  which  we  have  made  in  Report 
Number  1.^^ 

These  sections  should  contain  standards  respecting  a  per- 
son's entitlement  to  a  licence,  even  if  a  substantial  measure  of 
discretion  is  still  to  be  vested  in  the  Board.  The  arbitrary 
features  in  sections  29  and  55  should  be  repealed. 

In  addition,  the  provisions  of  sections  47,  53  and  53a 
that  the  licences  thereunder  can  only  be  issued  "with  the 
approval  of  the  Minister,"  subordinates  what  appears  to  be  an 
independent  Board  to  the  political  control  of  the  Minister. 
The  result  is  that  the  Minister,  through  the  Board,  has  the 
power  of  complete  control  over  competition  in  the  brewing, 
distilling  and  wine-producing  industries  in  Ontario.  Persons 

^'Ibid.,  s.  28. 

''Ibid.,  s.  55a  as  enacted  by  Ont.  1965,  c.  58,  s.  33. 
""Ibid.,  s.  29  as  amended  by  Ont.  1965,  c.  58,  s.  15. 
"'Ibid.,  s.  55  as  re-enacted  by  Ont.  1965,  c.  58,  s.  33. 
"^See,  in  particular,  pp.  1100-1107  supra. 


Chapter  m  1833 

wishing  to  enter  these  industries  should  have  a  right  to  apply 
to  the  Board  to  prove  to  it  that  they  are  prima  facie  entitled 
to  a  licence  (which  presupposes  the  inclusion  of  standards  or 
factors  in  the  legislation,  as  just  discussed)  and,  if  they  are 
refused,  they  should  have  a  right  of  appeal.  We  shall  discuss 
appeals  later.  The  control  of  the  Minister  should  be  removed. 
Section  28  requiring  the  holder  of  a  licence  for  the  sale 
of  liquor  to  give  security  gives  the  Board  absolute  power  to 
place  onerous  and  unnecessary  burdens  on  a  holder  of  a 
licence  for  the  sale  of  liquor.  There  seems  to  be  no  good  rea- 
son for  the  section.  Mr.  Woodrow,  who  has  been  counsel  for 
the  Board  for  many  years,  stated  to  us: 

"Nothing  has  ever  been  done  to  my  knowledge  imder  the 
section.  Nobody— no  manufacturer  who  has  been  licensed 
to  sell  in  this  province  has  ever  been  requested  to  produce  a 
bond  or  anything  else." 

It  is  not  to  be  overlooked  that  the  provisions  of  section 
55a  with  which  we  shall  deal  later,  which  give  the  holder  of  a 
licence  or  permit  that  is  cancelled  a  right  of  appeal,  do  not 
apply  to  the  holder  of  a  licence  who  may  be  ordered  to  give 
security.  Since  the  section  is  apparently  of  no  practical  use  it 
should  be  repealed. 

None  of  the  provisions  (notwithstanding  the  repeal  of 
the  language  in  section  29  exempting  the  Board  from  the 
obligation  to  give  reasons)  require  that  the  Board  shall  give 
reasons  for  its  licensing  decisions.  This  omission,  as  well  as 
several  others  of  a  procedural  nature,  would  be  remedied  by 
the  application  of  the  Statutory  Powers  Procedure  Act  recom- 
mended in  Report  Number  1  to  the  licensing  powers  of  this 
Board. 

Section  55a  does  not  provide  for  an  appeal  from  a 
decision  refusing  to  grant  a  licence.  There  should  be  such  a 
right  of  appeal. 

In  providing  for  an  appeal  from  an  order  of  the  Board 
cancelling  a  licence^^  the  Legislature  has  followed  an  incon- 
sistent policy.  Under  the  Municipal  Act-*  a  taxicab  driver 

"See  R.S.O.  1960,  c.  217,  s.  55a  as  enacted  by  Ont.  1965,  c.  58,  s.  33;  s.  140  as 

amended  by  Ont.  1965,  c.  58,  s.  77. 
**R.S.O.  1960,  c.  249,  s.  247(9). 


1834         The  Liquor  Control  Board  of  Ontario 

who  has  had  his  licence  revoked  by  a  board  of  commissioners 
of  police  has  a  right  of  appeal  to  a  judge  of  the  Supreme 
Court  of  Ontario.  Under  the  Real  Estate  and  Business  Brokers 
Act^^  the  right  of  appeal  from  the  cancellation  of  a  licence  by 
the  Tribunal  lies  to  the  Court  of  Appeal,  In  the  case  of  a 
dentist  whose  licence  to  practice  has  been  cancelled  the  appeal 
lies  to  the  Court  of  Appeal. ^^  The  cancellation  of  a  licence  of 
a  brewer  or  distiller  or  wine  producer  may  involve  great  eco- 
nomic loss  to  the  licensee  but  the  right  of  appeal  that  is  given 
is  to  a  county  or  district  court  judge. 

The  provisions  of  section  140  which  are  made  to  apply 
mutatis  mutandis  to  appeals  under  section  55a  are  designed 
for  appeals  from  convictions  under  the  Liquor  Control  Act 
which  may  involve  very  small  fines  and  not  to  a  situation 
where  an  industrial  plant  may  be  rendered  valueless  with  the 
resulting  loss.  We  think  the  right  of  appeal  under  section  55a 
should  be  to  the  Divisional  Court  of  the  High  Court  of 
Justice. 

In  another  respect  the  provisions  of  section  140  are  in- 
applicable to  licensing  procedure  before  the  Board.  The  sec- 
tion contemplates  an  original  hearing  presided  over  by  a  pro- 
vincial judge  at  which  witnesses  are  heard  and  a  proper  record 
is  made.  The  appeal  is  heard  on  the  written  record.  Since  the 
Board  does  not  even  keep  minutes  it  is  difficult  to  see  how  an 
appeal  could  be  heard  under  the  provisions  of  section  55a. 

The  examination  of  this  Act  emphasizes  the  need  for 
proper  rules  governing  the  first  hearing  and  proper  rules  gov- 
erning the  appeal.  We  dealt  fully  with  appeals  from  licensing 
decisions  in  Report  Number  1.^^ 

INTERDICTION 

An  interdiction  order  may  be  made  either  by  the  Board, 
a  judge  of  a  county  or  district  court  or  a  provincial  judge. 

Section  84(1)  of  the  Act  provides  that  "the  Board  may, 
by  order  of  interdiction  signed  by  the  Chief  Commissioner  or 
the  Deputy  Chief  Commissioner,  prohibit  any  person  from 
purchasing,  having,  giving  or  consuming  any  liquor",  and 

"R.S.O.  I960,  c.  344,  ss.  30-34  as  re-enacted  by  Ont.  1968-69,  c.  105,  s.  2. 
"Dentistry  Act,  R.S.O.  1960,  c.  91,  s.  27  as  re-enacted  by  Ont.  1966,  c.  38,  s.  14. 
"pp.  1128-32  iupra. 


Chapter  115         1835 

section  84(3)  pro\idcs  ihat  the  Board  may,  "by  order  of  inter- 
diction", prohibit  the  supplying  of  li(juor  to  anyone  against 
whom  an  order  of  interdiction  has  been  made."" 

"97.  Where  it  is  made  to  appear  to  the  satisfaction  of  the  judge 
of  a  county  or  district  court,  the  judge  of  a  juvenile  and 
family  court  or  a  justice  that  a  person,  resident  or  sojourning 
in  Ontario,  by  excessive  drinking  of  liquor,  misspends, 
wastes  or  lessens  his  estate,  or  injincs  his  heahh,  or  interrupts 
the  peace  and  happiness  of  his  family,  the  judge  or  justice 
may  make  an  order  of  interdiction  prohibiting  the  sale  of 
liquor  to  him  until  further  ordered  .  .  .'"^^ 

Where  an  order  of  interdiction  is  made  the  person  against 
whom  the  order  is  made  has  a  right  to  apply  to  have  the  order 
set  aside  if  it  is  shown  to  the  satisfaction  of  the  judicial 
authority  that  the  order  is  one  that  ought  not  to  have  been 
made  or  it  is  proved  "that  the  interdicted  person  has  refrained 
from  drunkenness  for  at  least  the  twelve  months  immediately 
preceding  the  application.  . .  ."^" 

No  guidelines  are  laid  down  for  the  exercise  of  the 
powers  conferred  on  the  Board  under  section  84(1).  An  order 
may  be  made  against  "any  person".  On  the  other  hand,  the 
power  of  the  county  or  district  court  judge,  the  judge  of  the 
juvenile  and  family  court  (now  a  provincial  judge)  or  the 
justice  (defined  in  the  Act  to  mean  "a  magistrate"— now  a  pro- 
vincial judge)  may  only  be  exercised  when  it  is  made  to 
appear  to  his  satisfaction  that  the  specific  conditions  exist  as 
set  out  in  the  governing  section. 

The  powers  conferred  on  the  Board  under  section  84 
offend  against  the  general  principles  fully  discussed  in  Report 
Number  1  insofar  as  there  is  no  provision  for  notice  to  the 
person  affected  and  no  guidelines  or  conditions  precedent  for 
the  exercise  of  the  power.  We  discussed  these  matters  with 
the  Chairman  of  the  Board  and  the  Board  solicitor  and  they 
put  forward  convincing  reasons  why  the  provision  for  a  formal 
hearing  would  largely  destroy  the  purpose  of  the  section.  It 
is  apparently  used  quite  extensively.  In  many  cases  complaints 
come  to  the  Board  from  a  member  of  the  familv  who  often  is 


*R.S.O.  1960,  c.  217,  s.  84(1)  and  (3),  as  re-enacted  by  Ont.  1965,  c.  58,  s.  53. 
^Ibid.,  s.  97(1)  as  re-enacted  by  Ont.  1965,  c.  58,  s.  60. 
"Ibid.,  s.  100(1)  as  re-enacted  by  Ont.  1965,  c.  58,  s.  61. 


1836         The  Liquor  Control  Board  of  Ontario 

one  who  has  been  the  victim  of  violence  by  reason  of  the  exces- 
sive use  of  alcohol.  When  a  complaint  is  made  to  the  Board 
it  conducts  its  own  investigation  and  if  an  order  is  made  it 
notifies  the  party  against  whom  it  is  made.  He  may  then  ask 
the  Board  to  reconsider  its  order  and  if  he  does,  it  will  do  so. 
It  is  said  that  the  cases  have  been  rare  in  which  the  Board 
has  been  asked  to  reconsider  an  order. 

We  are  convinced  that  these  powers  of  the  Board  fall 
within  the  class  of  cases  which  should  be  exempt  from  the 
provisions  of  the  Statutoi^y  Powers  Procedure  Act  recom- 
mended in  Report  Number  1.  The  disclosure  of  the  source 
of  information  would,  in  many  cases,  promote  violence  and 
further  disrupt  family  life. 

However,  the  person  against  whom  an  order  is  made 
should  have  a  statutoi7  right  to  apply  to  the  Board  for  a 
reconsideration  of  the  order  in  addition  to  his  right  to  apply 
to  a  judge  under  section  100(1)  to  have  the  order  set  aside. 
The  matter  should  not  be  left  to  the  informal  discretion  of 
the  Board. 

POWER  OF  EXPROPRIATION 

The  provisions  of  the  Act  conferring  an  express  power  of 
expropriation^^  were  repealed  in  1965^^-  but  the  following 
provision  remains.  It  is  the  duty  of  the  Board  and  it  has 
power  "to  purchase  or  lease  or  acquire  the  use  by  any  manner 
whatsoever  of  any  plant  or  equipment  that  is  considered 
necessary  or  useful  in  carrying  into  effect  the  object  and 
purposes  of  this  Act  and  the  regulations."^^  We  assume  that 
when  the  Legislature  passed  the  1965  legislation  it  intended 
to  remove  all  powers  of  expropriation  from  the  Board.  It  may 
be  that  the  words  "acquire  the  use  by  any  manner  whatso- 
ever" w^ould  not  now  be  interpreted  as  power  to  expropriate, 
but  they  are  ambiguous.  We  emphasized  in  Report  Number 
1  that  if  power  to  expropriate  is  to  be  conferred  on  any  body 
it  should  be  conferred  by  express  and  clear  language. ^^  The 
words  just  quoted  should  be  repealed. 

^Uhid.,  s.  12. 

^'Ont.  1965,  c.  58,  s.  5. 

="R.S.O.  1960,  c.  217,  s.  81(1)  (g).  Italics  added. 

"p.  982  supra. 


I 


Chapter  113  1837 

OFFENCES 

"101.  K\'eiy  person  who  contravenes  any  provision  of  this  Act  or 
the  regulations  is  guilty  of  an  offence  against  this  Act, 
whether  so  declared  or  not."-*'^ 

This  section  is  objectionable  penal  legislation.  If  a  section 
of  the  Act  or  a  regulation  is  intended  to  create  an  offence  it 
should  specihcally  so  state.  A  section  in  a  regulation  made 
under  the  Act  provides: 

"Every  justice  shall  forward  monthly  to  the  Board  a  certifi- 
cate containing  particulars  of  all  cases  heard  by  him  arising 
out  of  offences  under  this  Act  and  the  regulations  or  The 
Liquor  Licence  Act  and  the  regulations  under  that  Act."^^ 

Under  the  provisions  of  section  101  if  a  justice  fails  to  file  his 
returns  monthly  or  is  ill  and  unable  to  file  his  returns  he 
would  be  guilty  of  an  offence  under  the  Act. 

"78.  Except  as  provided  by  this  Act  or  The  Liquor  Licence  Act 
or  the  regulations  hereunder  or  thereunder,  no  person  shall 
consume  liquor  unless  the  liquor  has  been  acquired  under 
this  Act  or  the  regulations,  or  is  had  or  kept  with  the  permis- 
sion of  the  Board,  and  unless  the  package  in  which  the  liquor 
is  contained  and  from  which  it  is  taken  for  consumption  has, 
while  containing  that  liquor,  been  sealed  with  the  official 
seal  prescribed  by  this  Act  or  the  regulations."^^ 

On  its  face  this  section  is  an  absolute  prohibition  and  renders 
anyone  who  consumes  liquor  liable  to  conviction  under  the 
Act  even  though  he  did  not  know  that  the  liquor  was  not 
obtained  according  to  the  provisions  of  the  Act  or  the  Liquor 
Licence  Act.  It  may  be  that  the  courts  might  give  the  section 
a  limited  interpretation  but  penal  legislation  should  be  clear. 
If  the  section  is  considered  to  be  necessary  at  all  it  should  be 
amended  to  provide  that  "no  person  shall  knowingly  consume 
liquor.  .  .  ." 

Power  to  Arrest  Without  a  Warrant 

"111.  Any  constable  or  other  police  officer  may  arrest  without 
w^arrant  a  person  whom  he  finds  committing  an  offence 
against  this  Act  or  the  regulations."^^ 

*°R.S.O.  1960,  c.  217,  s.  101. 

^«0.  Reg.  35/66,  s.  75. 

"R.S.O.  1960,  c.  217,  s.  78  as  amended  by  Ont.  1965,  c.  58,  s.  49. 

^Hbid.,s.  111. 


1838  The  Liquor  Control  Board  of  Ontario 

As  we  have  already  pointed  out  anyone  who  contravenes  any 
provisions  of  the  Act  or  the  regulations  is  guilty  of  an 
offence. ^'^  There  are  many  offences  created  under  the  Act 
and  the  regidations  that  are  not  appropriate  for  the  power 
of  arrest  let  alone  the  power  of  arrest  without  a  warrant.  In 
Report  Number  1  we  recommended  that  no  statute  should 
give  power  to  the  Lieutenant  Governor  in  Council  to  make 
regulations  creating  offences  for  which  a  person  may  be 
arrested  without  a  waiTant.^'^  The  absurdity  of  this  provision 
is  illustrated  by  reference  to  section  81  which  provides  that 
"no  person  shall  sell  or  supply  liquor  or  permit  liquor  to  be 
sold  or  supplied  to  any  person  under  or  apparently  under  the 
influence  of  liquor."  It  may  be  said  that  anyone  who  has  one 
drink  of  alcoholic  liquor  will  be  under  the  influence  of 
liquor.  Therefore,  one  who  supplies  a  second  drink  to  any- 
one might  be  anested  without  a  warrant  if  seen  to  do  so  by  a 
constable. 

We  commented  on  provisions  such  as  this  in  Report 
Number  1^^  in  relation  to  the  Liquor  Licence  Act  in  another 
context  and  -^^-e  repeat  what  we  said  there:  "The  reckless 
absurdity  of  these  provisions  reduces  the  authority  of  the  law 
to  the  ridiculous.  "^^ 

There  should  be  a  complete  revision  of  the  offences 
created  under  the  Act  and  the  powers  of  arrest  conferred 
under  the  Act  and  such  powers  should  be  strictly  confined  and 
governed  by  the  recommendations  made  in  Report  Number 
1. 

Power  to  Search  the  Person 

Wide  powers  to  search  the  person  are  conferred  under 
the  Act.^^  We  commented  on  these  powers  in  Report  Number 
1  and  compared  them  with  the  powers  of  search  of  the  person 
conferred  under  the  Criminal  Code.^^  We  reaffirm  the  con- 
clusions we  came  to  there  that  the  power  of  search  of  the 

^''Ibid.,  s.  101. 

*°p.  729  supra. 

"p.  733  supra. 

"p.  735  supra. 

"R.S.O.  1960,  c.  217,  s.  110,  as  re-enacted  by  Ont.  1965,  c.  58,  s.  68. 

"p.  425  supra. 


Chapter  115  1839 

person  ought  not  to  be  conferred  under  the  provincial  law. 
It  is  out  of  all  proportion  to  the  seriousness  of  the  offences 
created  under  provincial  statutes. 

Fines 

Subject  to  section  87  of  the  Liquor  Licence  Act,  all  fines 
imposed  under  the  Act,  after  deducting  all  necessary  costs, 
are  payable  to  the  Board/^  In  Report  Number  1  we  recom- 
mended that  all  fines  payable  for  contravention  of  laws  passed 
under  the  authority  of  the  Provincial  Legislature  be  paid  to 
the  Province.^® 

JUDICIAL  REVIEW 

"Every  action,  order  or  decision  of  the  Board  as  to  any  matter 
or  thing  in  respect  of  ^^'hich  any  power,  authority  or  discre- 
tion is  conferred  on  the  Board  under  this  Act  or  the  regula- 
tions is  final  and  shall  not  be  questioned,  reviewed  or 
restrained  by  injunction,  prohibition  or  mandamus  or  other 
process  or  proceeding  in  any  court  or  be  removed  by 
certiorari  or  otherwise  in  any  court,  but  the  Board  may  state 
a  case  on  a  point  of  law  only  as  provided  from  time  to  time 
in  the  Criminal  Code   (Canada)."'*'^ 

The  last  clause  making  provision  for  a  stated  case  was  added 
by  amendment  in  1965.^^  We  shall  deal  later  with  the  pro- 
vision for  appeal  by  way  of  a  stated  case. 

The  section  purports  to  exclude  the  power  of  the  court 
to  review  any  "action,  order  or  decision  of  the  Board  as  to 
any  matter  or  thing  in  respect  of  which  any  power,  authority 
or  discretion  is  conferred  on  the  Board  under  this  Act."  In 
Report  Number  1  we  recommended  that  all  privative  clauses 
should  be  repealed. ^^  Privative  clauses  are  a  negation  of  the 
rule  of  law.  It  is  hard  to  see  how  this  clause  can  be  justified 
on  any  ground  in  this  Act.  It  is  especially  objectionable  in 
view  of  the  fact  that  the  Board  is  engaged  in  the  commercial 
activity  of  merchandising  liquor.  It  may  be  that  the  Board 
feels  that  the  shelter  provided  by  this  clause  enables  it  to 
conduct  its  proceedings  without  minutes  and  without  the 

"R.S.O.  1960,  c.  217,  s.  122. 

"p.  914  supra. 

♦'R.S.O.  1960,  c.  217.  s.  26(2)  as  amended  bv  Ont.  1965,  c.  58,  s.  13(2). 

^'Ont.  1965,  c.  58,  s.  13(2). 

"p.  277  supra. 


1840         The  Liquor  Control  Board  of  Ontario 

elementary  order  that  is  required  of  private  corporations.  The 
section  is  out  of  accord  with  the  policy  of  section  55a  which 
was  added  in  1965^*^  giving  the  holder  of  a  licence  or  permit, 
whose  licence  has  been  cancelled,  a  right  of  appeal.  The 
privative  portion  of  the  clause  should  be  repealed. 

APPEALS 

Appeal  by  Way  of  Stated  Case 

The  draftsman  of  the  provision  for  a  stated  case  "on  a 
point  of  law  only  as  provided  from  time  to  time  in  the 
Criminal  Code  (Canada)"  no  doubt  meant  well  but  expressed 
himself  in  inappropriate  language.  The  provisions  of  the 
Criminal  Code  apply  to  convictions  under  the  summary  con- 
victions part  of  the  Code.^^  They  provide  for  rights  of  appeal 
by  way  of  stated  case  by  a  party  to  the  proceedings  or  the 
Attorney  General. ^^  Where  the  summary  conviction  court 
refuses  to  state  a  case  an  application  may  be  made  to  a  superior 
court  for  an  order  that  a  case  be  stated.^^  The  section  under 
review  provides  only  that  the  Board  ''may  state  a  case  on  a 
point  of  law."^^  We  think  that  the  Board,  on  the  request  of 
a  party  affected  by  an  order  of  the  Board,  in  appropriate 
cases,  should  be  required  to  state  a  case  on  a  point  of  law  for 
the  decision  of  the  Divisional  Court  of  the  High  Court  of 
Justice.  In  case  of  refusal  to  state  a  case  the  party  affected 
should  have  a  right  to  apply  to  the  Court  for  an  order  direct- 
ing the  Board  to  state  a  case.  This  might  well  be  the  inten- 
tion of  the  section  but  if  it  is,  it  is  inappropriately  expressed. 

Appeals  from  Conviction 

As  we  have  indicated,  the  appeal  from  a  conviction  lies 
to  a  county  or  district  court  judge^^  with  a  further  right  of 
appeal  to  the  Court  of  Appeal  with  leave  of  that  Court  or  a 
judge  thereof  on  any  ground  that  involves  a  question  of  law 
alone.^^ 


"Ont.  1965,  c.  58,  s.  33. 

"Grim.  Code,  Part  XXIV. 

''Ibid.,  s.  734. 

''^Ihid.,  s.  738. 

"Italics  added. 

""R.S.O.  1960,  c.  217,  s.  140,  as  amended  by  Ont.  1965,  c.  58,  s.  77. 

^"Ibid.^s.  141. 


Chapter  115         1841 

On  an  appeal  to  the  county  or  district  court  judge  an 
appellant  who  has  paid  a  fine  is  required  to  deposit  $50.00  as 
security  for  the  respondent's  costs. "^^^  If  the  convicted  person 
is  in  custody  he  shall  cither  remain  in  custody  until  the  hear- 
ing of  the  appeal  or  he  may  "enter  into  a  recognizance  with 
two  sufficient  sureties  in  such  sum  or  sums  as  the  justice  with 
the  approval  of  the  Crown  attorney  may  fix"  conditioned  on 
his  appearance  "to  try  the  appeal  and  abide  by  the  judgment 
thereupon  and  also  to  pay  any  penalty  in  money  and  costs  that 
the  judge  orders. "^^ 

This  provision  is  open  to  two  objections.  First,  the  judi- 
cial officer,  who  in  most  cases  is  a  provincial  judge,  cannot 
fully  perform  his  judicial  function  of  fixing  bail  and  the 
security  required  w^ithout  the  approval  of  the  Crown  attorney, 
who  is  the  prosecuting  officer.  This  is  a  negation  of  the  prin- 
ciple of  the  independence  of  the  judiciary.  If  the  presiding 
judge  is  not  capable  of  fixing  bail  and  the  amount  of  the 
security  required  he  is  surely  not  capable  of  trying  the  case. 
The  words  "with  the  approval  of  the  Crown  attorney"  should 
be  struck  out. 

The  second  objection  relates  to  the  requirement  that  the 
convicted  person  is  obliged  to  stay  in  jail  if  the  sentence  is  to 
jail  or  to  give  security  to  pay  the  amount  of  the  money  penalty 
and  the  costs  of  the  prosecution.  We  dealt  fully  with  pro- 
visions of  this  sort  in  provincial  statutes  in  Report  Number 
\^^  and  pointed  out  that  this  is  discriminatory  legislation.  The 
person  of  means  can  prosecute  his  appeal  but  in  effect  the 
right  of  appeal  is  denied  to  the  person  without  means.  We 
pointed  out  that  one  convicted  of  an  indictable  offence  may 
appeal  without  giving  any  security  while  a  person  convicted 
of  an  offence  under  the  Liquor  Control  Act  must  not  only 
give  security  to  prosecute  the  appeal  but  security  for  any 
money  penalty  imposed  or  that  may  be  imposed  and  the  costs 
of  the  prosecution. 

"Where  the  appellant  desires  to  deposit  a  sum  of  money 
instead  of  providing  sureties  he  may  do  so  on  entering  into 
a  recognizance  on  his  own  behalf  and  depositing  an  amount 
approved  by  the  convicting  justice  and  the  Crown  attorney, 

^'Ibid.,  s.  140(4). 

^Uhid.,  s.  140(5).  Italics  added. 

"p.  786ff.  supra. 


1842         The  Liquor  Control  Board  of  Ontario 

not  being  less  than  a  surety  ^voiild  be  required  to  become 
responsible  for,  and  any  money  so  deposited  shall  be  avail- 
able for  the  payment  of  any  fine  and  costs  that  the  judge 
thinks  fit  to  impose."''" 

This  provision  emphasizes  what  we  have  said  that  the 
provisions  of  the  legislation  with  respect  to  appeals  place 
particular  hardships  on  the  individual  who  is  without  means. 

In  contrast  with  the  rights  of  a  convicted  person,  an 
informant  or  complainant  who  is  dissatisfied  with  an  order  of 
dismissal  made  by  a  justice  has  a  right  to  appeal  on  any 
ground  that  involves  a  question  of  law  alone  and  the  deposit 
of  security  is  dispensed  with.*^^  It  is  hard  to  understand  why  a 
private  complainant  who  has  laid  a  charge  against  an  accused 
person  under  the  Liquor  Control  Act  should  have  a  right  of 
appeal  against  a  dismissal  of  the  charge  on  a  question  of  law 
without  giving  security  while  the  convicted  person  is  required 
to  give  security.  A  case  requiring  the  posting  of  security  by  a 
complainant  '^vho  is  not  the  Attorney  General  is  much 
stronger  than  requiring  a  convicted  person  to  post  security. 
It  is  unjust  that  the  complainant  should  be  able  to  put  an 
acquitted  person  to  the  costs  of  an  appeal.  In  Report  Num- 
ber 1  we  recommended  that  the  liability  of  an  unsuccessful 
appellant  to  pay  the  costs  of  the  Crown  on  appeal  should  be 
abolished.*^" 

SEPARATION  OF  POWERS 

As  we  indicated  early  in  this  Chapter,  it  is  something  of 
a  misnomer  to  call  the  Liquor  Control  Board  a  "Control 
Board".  Its  principal  business  is  to  sell  liquor  as  a  govern- 
ment agency.  Its  decision-making  powers  are  quite  inconsis- 
tent with  the  poAvers  exercised  in  carrying  on  that  business, 
while,  on  the  other  hand,  the  powers  exercised  by  the  Liquor 
Licence  Board  with  which  w^e  shall  deal  in  the  next  Chapter 
are  purely  "control"  powers. 

We  think  consideration  should  be  given  to  completely 
revising  the  Liquor  Control  Act  and  separating  the  merchan- 
dising powers  from  the  control  powers  and  transferring  all 

""R.S.O.  I960,  c.  217,  s.  140(6). 
"^Ibid.,  s.  140(14). 
"-p.  783fF.  supra. 


Chapter  115         1843 

the  decision-making  powers  from  ihe  Board  to  the  Li(juor 
Licence  Board.  It  is  quite  inconsistent  that  there  should  be 
two  licensing  bodies  exercising  powers  in  the  control  of  the 
sale  of  liquor. 

RECOMMENDATIONS 

1.  If  the  power  of  the  Board  under  section  8(2)  of  the  Act 
to  exempt  products  from  the  Act  is  not  essential  the  sub- 
section should  be  repealed.  If  it  is  essential  such  an  order 
of  the  Board  should  be  subject  to  the  approval  of  the 
Lieutenant  Governor  in  Council. 

2.  The  power  of  the  Board  to  make  regulations  prescribing 
taxes  and  assessments  by  regulation  should  be  abolished. 

3.  The  licensing  provisions  in  sections  47,  53  and  53a  should 
be  amended  by  the  insertion  of  standards  or  factors  con- 
cerning the  licensing  decisions  made  thereunder  and  the 
arbitrary  features  of  sections  29  and  55  should  be  re- 
pealed. 

4.  The  licensing  powers  pursuant  to  these  sections  should 
not  be  subject  to  the  control  of  a  Minister. 

5.  Section  28  of  the  Act  requiring  the  holder  of  a  licence 
for  the  sale  of  liquor  to  give  security  should  be  repealed. 

6.  The  Board  should  be  required  to  give  reasons  for  the 
refusal  or  the  cancellation  of  a  licence. 

7.  The  Act  should  provide  for  a  right  of  appeal  from  the 
refusal  of  a  licence. 

8.  Appeals  from  licensing  decisions  under  section  55a 
should  not  lie  to  the  county  or  district  court  judge  but  to 
the  Divisional  Court  of  the  High  Court  of  Justice. 

9.  Guidelines  should  be  laid  down  for  the  exercise  of  the 
Board's  powers  respecting  interdiction  under  section 
84(1). 

10.  Provision  should  be  made  in  the  Act  for  the  right  of  a 
person  against  whom  an  order  has  been  made  under 
section  84(1)  to  apply  to  the  Board  to  have  the  order 
reconsidered. 


1844  The  Liquor  Control  Board  of  Ontario 

11.  Section  8(1  )(g)  should  be  amended  to  strike  out  the 
words  "by  any  manner  whatsoever". 

12.  Section  101  of  the  Act  providing  that  the  contravention 
of  any  provision  in  it  or  the  regulations  constitutes  an 
offence,  whether  so  declared  or  not,  should  be  repealed. 
If  a  section  of  the  Act  or  regulations  is  intended  to  create 
an  offence  it  should  specifically  so  state. 

13.  Section  78  of  the  Act  should  be  amended  to  provide  that 
a  person  can  be  convicted  thereunder  only  if  he  know- 
ingly consumed  liquor  which  has  not  been  "acquired 
under  the  Act  or  regulations  .  .  .". 

14.  There  should  be  a  complete  revision  of  the  offences 
created  under  the  Act  and  the  powers  of  arrest  without  a 
warrant. 

15.  The  powers  confeiTed  on  police  officers  to  search  the 
person  should  be  repealed. 

16.  Section  122  of  the  Act  should  be  amended  to  provide 
that  fines  imposed  under  the  Act  should  be  paid  to  the 
Province. 

17.  The  privative  portions  of  section  26(2)  should  be  re- 
pealed. 

18.  Section  26(2)  of  the  Act  should  be  amended  to  make  it 
clear  that  a  party  has  a  right  to  apply  to  the  Court  for  an 
order  directing  the  Board  to  state  a  case,  in  cases  where 
the  Board  has  refused  to  do  so. 

19.  Section  140  of  the  Act  should  be  amended  to  remove  the 
requirements  that  a  person  convicted  of  an  offence  under 
the  Act  deposit  a  sum  as  security  for  costs  and  enter  into 
a  recognizance  or  deposit  a  sum  of  money  in  lieu  of  enter- 
ing into  a  recognizance.  In  any  event,  subsections  5  and 
6  thereof  should  be  amended  to  delete  the  requirement 
of  approval  by  the  Crown  attorney  respecting  the  amount 
of  the  recognizance  or  the  deposit  of  money  in  lieu 
thereof. 

20.  Consideration  should  be  given  to  completely  revising  the 
Liquor  Control  Act  so  as  to  create  a  board  with  powers 


Chapter  11  "y  1845 

to  merchandise  li(|uor  in  Ontario  on  behalf  of  the 
government  and  at  the  same  time  transfer  the  regulatory 
powers  and  licensing  powers  now  exercised  by  the  Board 
to  a  board  which  will  regulate,  control  and  license  the 
litjuor  trade  in  all  its  aspects. 

21.  If  the  Liquor  Control  Board  is  to  continue  to  exist  there 
should  be  a  statutory  requirement  that  it  keep  minutes 
of  all  its  decisions. 


CHAPTER  116 


The  Liquor  Licence  Board 
of  Ontario 


INTRODUCTION 

Ihe  Liquor  Licence  Board  of  Ontario  provided  for 
under  the  Liquor  Licence  Act,^  is  a  companion  board  to  the 
Liquor  Control  Board  for  the  control  of  the  sale  of  liquor  in 
Ontario.  The  Liquor  Licence  Act  should  be  read  with  the 
Liquor  Control  Act"  which  we  discussed  in  the  preceding 
Chapter.  Even  when  one  has  done  so  it  is  sometimes  difficult 
to  determine  what  the  law  is  with  respect  to  the  sale  of  liquor 
in  Ontario.  For  example,  there  is  no  simple  provision  in  the 
Liquor  Licence  Act  prohibiting  the  sale  of  liquor  without  a 
licence.  The  prohibition  is  to  be  found  in  the  Liquor  Control 
Act  which  provides  "except  as  provided  by  this  Act,  The 
Liquor  Licence  Act  or  the  regulations  hereunder  or  there- 
under, no  person  shall  .  .  .  sell  or  offer  to  sell  liquor  ...  to 
any  other  person",* 

These  statutes  are  very  confused.  They  have  evolved  out 
of  other  statutes  relating  to  licensing  and  prohibiting  the  sale 
of  liquor  that  are  quite  inconsistent  with  the  present  scheme 
and  policy  of  liquor  legislation.  As  the  former  Chairman  of 
the  Liquor  Licence  Board  said  during  his  interview  with  us, 
"this  'growed  like  Topsy'  you  know".  There  are  many  pro- 
visions in  the  Act  which  are  not  used,  and  as  far  as  the  Chair- 
man could  see,  they  could  be  repealed. 

"R.S.O.  1960,  c.  218,  amended  by  Ont.  1961-62,  c.  73  and  Ont.  1965,  c.  59. 
^R.S.O.   1960,  c.  217.  Provisions  of  this  Act  are  discussed  in  Chapter   115 
supra. 
Ubid.,  s.  70(1).  See  also  s.  78  as  amended  by  Ont.  1965,  c.  58,  s.  49. 

1846 


Chapter  116         1817 

ORGANIZATION  OF  THE  BOARD 

The  Board  consists  of  three  members  appointed  by  the 
Lieutenant  Ciovernor  in  Council.^  'Fwo  members  constitute 
a  quorum."'*  Notwithstanding  this,  the  Act  provides  for  one 
member  holding  meetings  but  it  does  not  say  "meetings  of 
the  Board".  Section  32  of  the  Act  provides  that  "a  member 
of  the  Board  shall  hold  a  meeting  annually,  at  a  convenient 
place  determined  by  the  Board,  for  each  licensing  district 
between  the  1st  day  of  October  and  the  31st  day  of  January 
in  the  year  next  following."*' 

"34.  After  a  meeting  has  been  held  pursuant  to  section  32,  the 
Board  shall  review  and  determine  applications  for  the 
renewal  of  licences."^ 

"35.(1)  Tlie  Board  or  a  member  thereof  may  hold  such  special 
meetings  as  are  deemed  necessary  for  the  hearing  and 
determination  of, 

(a)  applications  for  new  licences; 

(b)  deferred  applications  for  renewals  of  licences; 

(c)  proceedings  involving  the  cancellation  or  suspension 
of  a  licence; 

(d)  applications  for  transfers  of  licences; 

(e)  proceedings  in  compensation  matters; 

(f)  applications   for  revocation   of   the   suspension    of  a 
licence; 

(g)  applications  for  review  of  orders  of  the  Board;  and 
(h)  matters  within  the  jurisdiction  of  the  Board. 

(2)  After  a  meeting  has  been  held  pursuant  to  subsection  1, 
the  Board  shall  review  and  determine  the  applications  or 
other  matters  before  the  Board  at  such  meeting."^ 

This  legislation  is  not  founded  on  any  sound  principles 
relating  to  the  exercise  of  judicial  or  administrative  power. 
The  meetings  held  under  the  last  quoted  section  are  for  "the 
hearing  and  determination"  of  the  matters  involved.  But  after 
the  meeting  the  Board  shall,  whether  the  meeting  was  held 
by  the  Board  or  a  member  thereof,  "review  and  determine  the 


*R.S.O.  I960,  c.  218,  s.  2. 
^Ihid.,  s.  4. 
"Ihid.,  s.  32. 
'Ibid.,  s.  34. 
Uhid.,  s.  35. 


1848  The  Liquor  Licence  Board  of  Ontario 

applications  or  other  matters  before  the  Board  at  such  meet- 
ing." 

The  former  Chairman  stated  to  us  that  where  one  mem- 
ber holds  the  meeting  of  the  Board  he  does  not  purport  to 
give  a  decision.  He  said  he  is  merely  gathering  information, 
but  he  does  not  make  a  formal  report  or,  in  fact,  any  report  in 
writing.  The  practice  appears  to  be  that  the  Deputy  Regis- 
trar "generally  reports  the  proceedings".  The  result  is  that 
the  party  whose  rights  may  be  affected  may  have  no  oppor- 
tunity of  presenting  his  case  to  those  who  decide,  or  to  know 
what  has  been  communicated  to  those  deciding. 

In  Report  Number  1  we  dealt  with  the  exercise  of 
administrative  powers  where  the  volume  of  public  business 
requires  that  many  decisions  must  either  be  made  by  subordi- 
nates or  by  the  Minister  on  reports  by  subordinates  and  the 
safeguards  that  should  be  applied.^  We  referred  to  cases  where 
administrative  power  is  conferred  directly  on  tribunals 
"where  the  matter  to  be  decided  requires  specialized  techni- 
cal knowledge  and  full  and  detailed  inquiries  into  the  facts 
of  each  case  before  a  decision  can  be  made.  .  .  ."^°  The  Liquor 
Licence  Board,  for  the  large  part,  exercises  such  power. 

We  also  dealt  with  licensing  bodies  and  approved  of  the 
delegation  of  power  to  issue  licences  "where  large  numbers 
of  licences  are  issued  annually. "^^  This  recommendation  does 
not  apply  to  the  issue  of  licences  by  the  Liquor  Licence  Board 
but  it  would  apply  to  the  renewal  of  licences  where  no  objec- 
tions have  been  raised.  How^ever,  we  said  "subject  to  the 
exception  to  which  we  shall  immediately  refer  [not  relevant 
here],  no  official  should  have  the  power  to  refuse,  suspend  or 
revoke  a  licence".^"  The  procedure  provided  by  sections  32, 
34  and  35,  above  quoted,  is  neither  a  hearing  procedure  with 
a  report  nor  a  statutory  delegation  of  power.  It  is  a  procedure 
without  any  fair  or  logical  basis.  Under  section  35  there  is  a 
meeting  of  the  Board  "for  the  hearing  and  determination  .  .  ." 
followed  by  another  meeting  "to  review  and  determine".  It 
is  most  difficult  to  know  who  makes  the  statutory  decisions, 
or  what  legal  function  is  performed  at  the  first  meeting. 

*p.  126ff.  supra. 
"p.  UQ  supra. 
^^p.  1116  supra. 
^'Ibid. 


Chapter  116         1849 

We  recommend  that  the  legislation  governing  the  meet- 
ings of  the  Board  and  the  exercise  of  its  powers  should  be 
completely  reviewed.  The  powers  of  the  Board  when  sitting 
as  a  board  should  be  exercised  by  a  quorum.  It  shoidd  have 
power  to  delegate  its  powers  to  a  member  to  renew  licences 
where  no  objections  have  been  made.  The  annual  meetings 
for  the  licensing  districts  should  be  presided  over  by  a  cjuorum 
of  the  Board.  These  are  meetings  at  which  members  of  the 
public  have  an  opportunity  to  make  representations  with 
respect  to  the  operation  of  the  Act  in  the  community  and  the 
manner  in  which  the  licensed  premises  are  operated. 

There  are  14  districts  in  Ontario  in  which  annual  meet- 
ings must  be  held.  It  would  not  be  an  undue  burden  on  the 
Board  to  have  a  quorum  present  at  all  these  meetings.  The 
former  Chairman  w^as  asked  w'hat  was  the  reason  for  the  pro- 
vision in  the  Act  authorizing  one  member  of  the  Board  to 
hold  a  meeting.  He  offered  this  explanation,  "There  was  a 
reason  for  this  in  that  one  might— I  never  travel  otherwise 
than  by  train  and  I  always  get  to  the  meetings,  and  some 
members  come  by  plane  and  sometimes  they  never  reach  the 
meeting  because  the  plane  is  grounded  and  they  never  get 
there.  That  is  why  the  Act  was  drafted  to  provide  that  only 
one  member  can  hold  a  meeting,  and  the  present  practice  is 
that  tw^o  members  shall  attend  every  meeting".  We  think  this 
is  a  frail  excuse  for  departing  from  the  expressed  provision  of 
the  statute  with  respect  to  a  quorum. 

We  recommend  that  if  it  is  necessary  for  a  member  to 
hold  a  meeting  relevant  to  any  matter  that  must  be  decided 
by  the  Board  his  powers  should  be  clearly  defined,  he  should 
be  required  to  make  a  written  report  which  should  be 
furnished  to  the  party  affected  and  the  party  affected  should 
have  an  opportunity  to  be  heard  by  the  Board  w^ith  respect 
thereto  if  he  so  desires. 

The  confusion  in  this  legislation  and  the  absence  of  any 
rules  of  procedure  emphasize  the  importance  of  our  recom- 
mendations made  in  Report  Number  1  w^ith  respect  to  a 
Statutory  Powers  Procedure  Act  and  proper  rules  of  pro- 
cedure.^' 


^^Chapter  14  supra. 


1850  The  Liquor  Licence  Board  of  Ontario 

To  the  extent  that  the  Board  exercises  judicial  powers, 
it  should  hear  the  evidence  directly  and  not  rely  upon  the 
report  of  a  delegate.^* 

LICENSING 

In  our  view  the  licensing  powers  of  the  Board  are  not 
framed  to  include  the  necessary-  safeguards.  The  Act  contains 
virtually  no  statement  of  factors  or  guidelines  to  be  taken  into 
account  respecting  the  issuance  of  licences.  What  little  guid- 
ance there  is  in  the  Act  on  this  important  question  is  of  a 
negative  nature.  The  Act  does  set  out  the  circumstances 
where  "no  licence  may  be  issued". ^^  The  Board  is  given  the 
express  power  to  "restrict  the  number  of  licences  or  of  any 
class  of  licences  that  it  issues  in  any  municipality".-^^  This, 
too,  is  a  negative  guideline  respecting  the  issuance  of  licences 
and  one  on  which  we  commented  in  Report  Number  P' 
■\\'here  we  said  that  such  a  power  should  only  be  conferred 
when  accompanied  by  adequate  safeguards  for  the  rights  of 
the  individual.  In  accordance  with  these  recommendations 
we  recommend  that  the  power  to  limit  the  number  of  licences 
in  a  municipality  should  be  subject  to  the  approval  of  the 
Lieutenant  Governor  in  Council  and  that  something  in  the 
nature  of  a  waiting  list  should  be  maintained  when  the  full 
limit  of  the  number  of  licences  in  a  municipality  has  been 
reached.  By  this  we  do  not  mean  to  imply  that  w^hen  a  new 
licence  becomes  available  in  a  municipality  the  person  whose 
name  is  at  the  top  of  the  list  is  automatically  entitled  to  it. 
We  merely  feel  that  there  should  be  some  regard  for  those 
who  have  applied  for  a  licence  and  have  been  refused  on  the 
ground  that  the  limit  of  licences  in  the  area  in  question  had 
been  reached. 

In  Report  Number  1  we  said  that  the  purpose  of  a 
licensing  powder  and  the  grounds  upon  w^hich  it  is  to  be  exer- 
cised should  be  carefully  determined  and  then  expressed  in 
the  legislation  with  as  much  clarity  and  objectivity  as  possible. 
We  recognized  that  if  there  was  too  much  in  the  way  of  objec- 

"See  pp.  220  and  1127  supra. 

'"R.S.O.  1960,  c.  218,  s.  28  as  amended  by  Ont.  1965,  c.  59,  s.  11;  s.  29,  as 

amended  bv  Ont.  1965,  c.  59,  s.  12. 
^"Ibid^s.  21(3). 
'^pp.  1107-10  and  p.  1118  supra. 


Chapter  116         1851 

tive  standards  in  the  legislation  its  effective  purpose  could  be 
frustrated. ^*^  We  fully  appreciate  that  there  are  complex  diffi- 
culties relating  to  licensing  with  respect  to  the  sale  of  licjuor. 
There  are  many  varying  and  possibly  conflicting  policies 
which  have  to  be  taken  into  account  in  the  decision  to  license, 
or  not  to  license,  and  it  would  be  impossible  to  state  all  rele- 
vant factors  in  the  governing  legislation  in  a  binding  manner. 
Nevertheless,  the  virtually  unfettered  discretion,  conferred 
under  the  existing  legislation,  is  unnecessarily  wide.  Some 
relevant  standards  can  and  should  be  incorporated  into  the 
Act. 

Cancellation  and  Suspension  of  Licences 

"Upon  an  application  being  made  to  the  Board  for  the 
cancellation  or  suspension  of  a  licence,  the  Board  may  by 
notice  in  writing  require  the  holder  of  the  licence  to  show 
cause  to  the  Board  ^vhy  the  licence  should  not  be  cancelled 
or  suspended,  and,  in  the  event  of  the  failure  of  the  holder 
of  the  licence  to  show  cause,  the  Board  shall  take  such  action 
as  the  circumstances  require. "^^ 

The  only  provision  for  procedure  is  that  the  notice  of 
a  hearing  shall  be  sent  to  the  licence  holder.  In  Report 
Number  1  we  set  out  the  procedural  provisions  that  should 
apply  where  an  application  is  made  to  cancel  a  licence.-*^  We 
emphasized  the  need  to  give  the  licensee  notice  of  the  grounds 
on  which  the  application  for  revocation  or  cancellation  is 
made.  The  provision  in  the  Act  for  notice  in  writing  requir- 
ing "the  holder  of  the  licence  to  show  cause  w^iy  the  licence 
should  not  be  cancelled  or  suspended"  is  an  unjust  provision. 
We  discussed  this  in  Report  Number  P^  and  recommended 
that  the  onus  of  satisfying  the  tribunal  on  a  balance  of  proba- 
bilities that  the  licence  should  be  cancelled  should  rest  on 
those  who  so  allege.  The  notice  of  hearing  should  set  out  the 
allegations  made  against  the  licence  holder  or  he  should,  at 
least,  be  given  a  reasonable  statement  of  the  allegations  that 
he  is  required  to  meet  in  ample  time  before  the  hearing. 

"p.  l\06  supra. 

"R.S.O.  1960,  c.  218,  s.  41(1)  as  amended  bv  Ont.  1965,  c.  59,  s.  16. 

""p.  l\S2  supra. 

"p.  1123  supra. 


1852         The  Liquor  Licence  Board  of  Ontario 

Where  the  Board  cancels  a  licence  it  should  be  required 
to  give  reasons  if  requested.  Curiously,  under  the  Act  in  case 
of  suspension  the  Board  is  required  to  give  reasons--  but 
where  the  more  severe  penalty  of  cancellation  is  imposed  it 
is  not  required  to  give  reasons.-^  An  appellate  body  is  at  a 
great  disadvantage  if  no  reasons  are  given  for  the  decision 
from  which  the  appeal  is  taken. 

JUDICIAL  REVIEW 

The  broad  powers  of  the  Board  with  which  we  have  been 
dealing  have  to  be  considered  in  the  light  of  the  provisions 
of  section  20  of  the  Act. 

"Except  as  provided  by  this  Act,  the  decisions,  orders  and 
ruHngs  of  the  Board  are  final  and  shall  not  be  questioned, 
reviewed  or  restrained  by  injunction,  prohibition,  man- 
damus, quo  warranto  proceedings  or  other  process  or  pro- 
ceedings in  any  court,  or  be  removed  by  certiorari  or 
other^sise  into  any  court,  but  the  Board  may,  or  at  the 
request  of  any  person  having  a  proprietary  interest  in  the 
matter  before  the  Board  shall,  state  a  case  on  a  point  of  law 
only  as  provided  from  time  to  time  in  the  Criminal  Code 
(Canada)."-^ 

We  shall  deal  first  with  the  privative  part  of  this  section 
which  extends  to  all  decisions,  orders  and  rulings  of  the 
Board.  What  the  Legislature  has  done  is  to  confer  extremely 
wide  powers  on  the  Board  (unnecessarily  wide)  affecting  civil 
rights  and  as  far  as  it  can  by  legislation  exclude  the  courts 
from  interfering  with  the  exercise  of  those  powers.  The  Board 
is  not  required  to  keep  a  record  and  there  are  no  rights  of 
appeal  from  the  Board's  decisions  save  by  way  of  a  stated  case 
and  an  appeal  by  a  licence  holder  whose  licence  has  been  can- 
celled, with  which  we  shall  deal  presently. 

In  Report  Number  1  we  recommended  that  all  privative 
clauses  of  this  sort  should  be  repealed.-^  There  is  nothing 
exceptional  about  the  jurisdiction  of  the  Liquor  Licence 
Board  that  warrants  any  restriction  on  the  power  of  the  courts 
to  review  its  decisions. 


"R.S.O.  I960,  c.  218,  s.  44. 

"See  p.  218  supra. 

"R.S.O.  1960,  c.  218,  s.  20  as  amended  by  Ont.  1961-62,  c.  73,  s.  1. 

"pp.  277-79  supra. 


Chapter  116         1853 

APPEALS 

Appeal  by  Stated  Case 

The  provision  for  a  stated  case-"  is  subject  to  the  same 
comments  concerning  procedure  that  we  made  with  reference 
to  section  26(2)  of  the  Liquor  Control  Act  except  insofar  as  it 
confers  a  right  to  have  a  case  stated  at  the  retjuest  of  "any 
person  having  a  proprietary  interest  in  the  matter.""^  The 
provisions  of  the  Criminal  Code  with  respect  to  stated  cases 
cannot  be  appropriately  adapted  generally  to  orders,  decisions 
and  rulings  of  the  Board.  The  rigJit  to  apply  for  a  stated  case 
is  limited  to  "any  person  having  a  proprietary  interest"  in  the 
matter.  This  is  much  too  restrictive.  It  may  well  be  that  an 
applicant  for  a  licence  or  a  person  whose  books  and  records 
are  ordered  to  be  examined  does  not  have  a  proprietary 
interest  in  the  matter.  This  right  of  appeal  should  extend  to 
"a  person  affected  by  a  decision,  order  or  ruling"  of  the 
Board. 

Right  of  Appeal  to  County  or  District  Court  Judge 

In  addition  to  the  appeal  by  way  of  stated  case  any 
licence  holder  whose  licence  has  been  cancelled  has  a  right 
of  appeal  "and  the  provisions  of  the  Liquor  Control  Act 
relating  to  appeals  apply  mutatis  mutandis  to  the  appeal".-^ 

The  Liquor  Licence  Act  adopts  the  provisions  of  the 
Liquor  Control  Act  as  to  appeals  and  the  Liquor  Control  Act 
purports  to  adopt  the  provisions  of  the  Criminal  Code  in 
summary  matters.  This  two-tiered  incorporation  by  reference 
compounds  difficulties. 

In  Chapter  115  we  discussed  the  relevant  provisions  of 
the  Liquor  Control  Act  and  pointed  out  the  difficulty  of 
applying  the  provisions  of  the  Criminal  Code  with  respect  to 
appeals  from  convictions  for  summary  offences  to  appeals 
from  decisions  of  the  Liquor  Control  Board.  An  appeal  from 
a  conviction  under  the  Liquor  Control  Act  is  on  the  record 
but  the  Liquor  Licence  Board  rarely  has  a  court  reporter 
present  at  the  hearings  which  it  holds  and  it  has  no  record. 

"R.S.O.  1960,  c.  218,  s.  20  as  amended  by  Ont.  1961-62.  c.  73,  s.  1. 

"'Chapter  115  supra. 

"R.S.O.  I960,  c.  218,  s.  43a  as  enacted  by  Ont.  1961-62,  c.  73,  s.  6. 


1854         The  Liquor  Licence  Board  of  Ontario 

The  Chairman  of  the  Board  was  for  many  years  a  county  court 
judge  and  is  familiar  with  the  appeal  procedure  under  the 
Summary  Convictions  Act.  He  was  asked  these  questions  and 
made  these  answers. 

"Commissioner:  Well  now,  when  you  have  a  hearing  on 
a  cancellation  of  licence,  or  for  a  cancellation  of  licence,  is 
there  a  court  reporter  present? 

Judge  Robb:  We  have  had  on  occasion  but  not  very 
frequently. 

Commissioner:  Then  on  an  appeal  if  one  is  trying  to 
apply  the  provisions  of  the  Liquor  Control  Act  mutatis 
mutandis  to  the  appeal  how  does  the  judge  hearing  the  appeal 
deal  with  it? 

Judge  Robb:  I  can't  answer. 

Commissioner:  He  couldn't,  could  he? 

Judge  Robb:  Well,  that  seems  to  follow,  doesn't  it. 

Commissioner:  Because  on  an  appeal  under  the  Liquor 
Control  Act  the  judge  hearing  the  appeal  hears  the  appeal 
on  the  record. 

Judge  Robb:  Right. 

Commissioner:  It  is  not  an  appeal  de  novo,  and  you  have 
no  record. 

Judge  Robb:  We  have  no  record  other  than  the  record 
which  is  made  in  the  minutes  of  the  meeting  indicating  that 
there  w^as  a  hearing  and  that  certain  matters  were  brought  to 
the  attention  of  the  licensee,  the  licensee  made  his  reply,  and 
the  Board  either  suspended  or  cancelled  his  licence  as  the 
case  may  be." 

We  dealt  with  rights  of  appeal  from  licensing  decisions 
in  Report  Number  l.^''  What  we  said  there  applies  to  the 
powers  exercised  by  the  Board.  The  appeal  should  lie  to  the 
Divisional  Court  of  the  High  Court  of  Justice  as  recom- 
mended in  Report  Number  l.^*' 

The  Act  does  not  provide  a  right  of  appeal  from  deci- 
sions refusing  to  issue  or  renew  licences  or  suspending 
licences.   It  should  be  amended  to  make  such  provisions. 

-*pp.  1128-32  supra. 
*°p.  1134  supra. 


Chapter  116         1855 

POWERS  OF  INVESTIGATION:  GENERAL 

"17.(1)  The  Board  may  make  such  investigation  as  it  deems  expe- 
dient for  the  due  achninisiration  ol  this  Act  into  or  respect- 
ing 

(a)  the  affairs  or  conduct  of  any  person  holding  a  licence 
or  of  any  of  his  servants,  agents  or  employees; 

(b)  any  authority  at  any  time  issued  or  held  imder  The 
Liquor  Control  Act  or  The  Liquor  Authority  Control 
Act,  1944,  or  any  licence  at  any  time  issued  or  held 
imder  this  Act,  or  any  premises  in  respect  of  which  any 
such  authority  or  licence  was  at  any  time  issued  or  held; 
or 

(c)  any  matter  pertaining  to  the  sale  or  handling  of  or  trans- 
actions in  liquor."^^ 

We  criticized  these  powers  on  several  grounds  in  Report 
Number  1.^- 

We  turn  now  to  the  method  by  which  the  Board  may 
implement  its  investigatory  powers.  It  has  "the  same  power 
to  summon  and  enforce  the  attendance  of  witnesses  and  com- 
pel them  to  give  evidence  on  oath  or  otherwise  and  to  produce 
documents  ...  as  is  vested  in  the  Supreine  Court  or  a  judge 
thereof  for  the  trial  of  civil  actions. "^^  This  includes  the 
power  to  commit  for  contempt  of  court.  We  dealt  with 
powers  such  as  these  in  Report  Number  P^  and  there  recom- 
mended that  powers  of  committal  should  be  exercised  only  by 
the  Supreme  Court  on  an  application  thereto.  In  discussing 
the  matter  with  us  the  Chairman  of  the  Board  agreed  that  the 
operations  of  the  Board  would  not  be  interfered  with  if  the 
power  of  committal  could  be  exercised  only  in  such  manner. 
He  said  the  Board  has  never  used  the  power.  The  section 
should  be  recast  and  the  power  of  committal  conferred  on  the 
Supreme  Court  as  recommended  in  Report  Number  1. 

Powers  of  Seizure 

"Where  an  investigation  is  or  is  about  to  be  undertaken  .  .  . 
the  Board  may  by  order, 

(a)  authorize  an  inspector  of  the  Board  to  seize  and  take 
possession  of  any  documents,  records  or  other  property 


'R.S.O.  1960,  c.  218,  s.  17(1)  as  amended  by  Ont.  1965,  c.  59,  s.  4(1). 
^pp.  79  and  421  supra. 

'R.S.O.  1960,  c.  218,  s.  16  as  amended  by  Ont.  1965,  c.  59,  s.  3. 
*pp.  441-46  supra. 


1856         The  Liquor  Licence  Board  of  Ontario 

belonging  to,  in  the  possession  or  under  the  control  of 
any  person  that  the  Board  considers  may  be  relevant 
to  the  investigation;  and 
(b)  appoint  an  accountant  or  other  expert  to  examine  docu- 
ments, records,  property  or  other  matters  that  the  Board 
considers  may  be  relevant  to  the  investigation. "^^ 

The  power  of  search  and  seizure  is  wide  and  unlimited 
by  any  objective  standard.  Anyone  is  liable  to  have  his  records 
seized  without  an  opportunity  to  be  heard  and  without  any 
obligation  on  the  Board  to  show  their  relevancy.  This  is 
contrary  to  our  recommendation  in  Report  Number  1  and 
we  have  already  said  so.^*' 

Long  years  of  experience  have  proven  that  this  power  is 
unnecessarily  wide  because  it  has  never  been  exercised. 
Clearly  the  purposes  of  the  Act  would  not  be  frustrated  if 
judicial  authority  were  required  before  the  powers  of  search 
and  seizure  of  the  records  of  others  than  licensees  could  be 
exercised.  It  is,  no  doubt,  proper  that  the  books  and  records 
of  licensees  should  be  subject  to  examination  by  the  Board, 
but  the  Board  should  not  have  unlimited  power  to  have  its 
accountant  examine  books  and  records  of  others. 

Powers  of  Entry 

In  addition  to  any  audit  provided  for  by  the  regulations 
the  Board  may  at  any  time  authorize  and  direct  a  representa- 
tive "to  enter  upon  the  premises  where  the  books,  accounts 
or  records  of  or  pertaining  to  any  establishment,  distillery, 
brewery  or  winery  are  or  may  be  kept  and  to  inspect,  study, 
audit,  take  extracts  from  or  seize  such  books,  accounts  or 
other  records".^"  This  power  of  search  and  seizure  extends 
to  any  "establishment".  "Establishment"  is  defined  by  the  Act 
as  "a  club,  hotel,  inn,  public  house,  tavern,  military  mess, 
restaurant,  railway  car,  aircraft,  theatre  or  steamship  having 
premises  that  comply  with  the  requirements  of  this  Act  and 
the  regulations  prescribing  the  qualifications  of  premises  in 

'"R.S.O.  I960,  c.  218,  s.  17(2)  as  amended  by  Ont.  1965,  c.  59,  s.  4(2). 
"'pp.  419-23  supra. 

"R.S.O.   1960,  c.  218,  s.  18(1)  as  amended  by  Ont.   1965,  c.  59,  s.  5.  Italics 
added. 


Chapter  116         1857 

respect  of  which  licences  may  be  issued. "^^  It  is  to  be  obsen'ed 
that  this  definition  extends  beyond  licensed  premises.  There 
is  a  power  of  search  and  seizure  respecting  any  of  the  defined 
places  in  respect  of  which  licences  "may  be  issued"— not  "have 
been  issued". 

There  is  no  reason  why  the  Board  should  have  power  to 
enter,  examine  or  seize  the  books  or  records  of  all  restaurants, 
clubs,  etc.  The  Chairman  answered  questions  which  we  put 
to  him,  in  the  following  manner: 

"Commissioner:  That  is  the  definition  of  'establishment' 
but  it  is  not  a  licensed  establishment? 

Judge  Robb:  Yes,  that  is  right. 

Commissioner:  This  section  is  not  confined  to  a  licensed 
establishment,  is  it? 

Judge  Robb:  No,  no,  not  as  it  reads. 

Commissioner:  Is  there  any  reason  why  it  should  not  be? 

Judge  Robb:  I  see  no  reason  why  it  should  not  be  a 
licensed  establishment." 

It  is  not  to  be  overlooked  that  under  the  provisions  of 
the  Act  a  proprietor  of  any  establishment  coming  within  the 
definition  could  not  refuse  to  have  his  books  examined  or 
seized  without  committing  an  offence  and  being  liable  to  a 
penalty  of  $1,000.2^ 

The  power  of  search  and  seizure  under  section  18(1) 
should  be  confined  to  licensed  establishments. 

Payment  of  Witness  Fees 

No  provision  is  made  in  the  Act  for  the  payment  of  wit- 
nesses. The  practice  is  to  pay  some  witness  fees.  The  Chair- 
man was  asked  what  the  basis  for  payment  was  and  his  reply 
was  "By  guess  and  by  gosh". 

In  the  city,  witnesses  are  not  paid  but  those  who  come 
from  a  distance  are  paid  transportation  allowance.  All  wit- 
nesses required  to  attend  under  compulsion  should  be  paid 
proper  witness  fees  as  recommended  in  Report  Number  l.^*' 

'"Ibid.,  s.  1(f)  as  amended  by  Ont.  1965,  c.  59,  s.  1(3). 

'"Ibid.,  s.  18(2). 

^'pp.  408  and  861  supra. 


1858         The  Liquor  Licence  Board  of  Ontario 

COMPENSATION 

Where  the  Board  disqualifies  any  premises  from  holding 
a  licence  for  a  cause  that  is  not  the  fault  of  or  is  beyond  the 
control  of  a  licence  holder  it  may,  subject  to  the  approval  of 
the  Lieutenant  Governor  in  Council,  award  compensation  to 
the  owner  of  the  premises  or  the  licence  holder.^ ^ 

This  section  is  permissive  only.  If  the  Board  wrongfully 
disqualifies  a  premises  it  should  be  compelled  to  award  com- 
pensation. The  amovnit  of  compensation  permitted  shall  be 
determined  by  an  arbitrator  appointed  by  the  Board  and  the 
provisions  of  the  Arbitrations  Act^"  ^PP^Y  to  the  arbitration."^^ 

The  Board  should  not  have  power  to  appoint  the  judge 
in  a  cause  to  which  it  is  a  party. 

The  Arbitrations  Act  provides  that  "where  it  is  agreed 
by  the  terms  of  the  submission  that  there  may  be  an  appeal 
from  the  award,  an  appeal  lies  to  a  judge  in  court  [which 
means  a  judge  of  the  Supreme  Court]  and  from  him  to  the 
Court  of  Appeal. "^^  In  this  case  the  submission  is  a  statutory 
one  and  there  is  no  provision  for  an  appeal.  Provision  should 
be  made  in  the  Act  for  an  appeal  from  the  award  on  arbitra- 
tion. We  think  that  a  proper  body  to  fix  the  compensation  is 
the  Land  Compensation  Board. ^^ 

OFFENCES 

"No  person  who  is  a  parent,  guardian  or  head  of  a  family 
having 'the  care,  custody  and  control  of  a  child  under  the  age 
of  eight  years  shall  enter  or  remain  upon  any  premises  Avhere 
liquor  is  sold  or  kept  for  sale  while  such  child  is  unattended 
by  a  competent  person. "^^ 

The  penalty  provided  is  a  fine  of  up  to  $1,000  or  im- 
prisonment for  a  term  of  not  more  than  three  months  or 
both.^^ 


"R.S.O.  1960,  c.  218,  s.  48. 

*-R.S.O.  1960,  c.  18. 

^'O.  Reg.  187/65,  s.  62. 

"R.S.O.  1960,  c.  18,  s.  16(1). 

*^p.  1045  supra.  See  the  Expropriations  Act,  1968-69,  c.  36,  s.  28  establishing 

the  Land  Compensation  Board. 
"R.S.O.  1960,  c.  218,  s.  56. 
^Ubid.,  s.  61(4)  as  re-enacted  by  Ont.  1965.  c.  59,  s.  19(2). 


ChulJterll6  1859 

The  purpose  of  this  section  is,  no  doubt,  commendable. 
It  is  intended  to  penalize  parents  who  go  to  licensed  premises 
and  leave  their  children  unattended,  but  its  terms  may  be 
harsh.  A  parent,  guardian  or  head  of  a  family  coming  within 
the  section  who  enters  or  remains  upon  any  premises  where 
liquor  is  sold  while  a  child  under  8  years  of  age  is  un- 
attended by  a  competent  person  is  guilty  of  an  offence. 
The  offence  is  entering  or  remaining  on  the  premises.  There 
is  no  mens  rea  expressly  recpiired  with  respect  to  the  child's 
being  unattended.  It  is  a  matter  for  judicial  interpretation 
whether  it  is  or  is  not  required.^**  For  example,  on  a  strict 
interpretation  of  the  Act,  a  parent  away  from  home  who 
entered  premises  where  liquor  is  sold  w'hile  his  7-year-old 
child  was  unattended  would  be  guilty  of  an  offence  and  it  is 
clear  that  if  the  Act  should  be  so  interpreted  he  would  be 
liable  to  be  arrested  without  a  warrant.^"  It  is  doubtful  if 
any  effort  has  been  made  to  enforce  this  law\  It  is  not  a  law^ 
for  the  regulation  and  control  of  the  sale  of  liquor.  It  is  a  law 
for  the  protection  of  young  children.  The  object  of  the  law 
is  desirable  and  if  there  is  to  be  such  a  law^  it  should  apply 
to  all  cases  where  parents  leave  young  children  unattended. 
The  children  are  just  as  likely  to  come  to  harm  if  the  parents 
have  left  them  unattended  and  entered  any  other  premises. 
This  provision  in  this  Act  would  appear  to  be  window-dress- 
ing. 

In  fact,  leaving  children  under  the  age  of  1 0  years  unat- 
tended for  an  unreasonable  length  of  time  w^ithout  making 
reasonable  provision  for  their  supervision  and  safety  has  been 
an  offence  under  the  Child  Welfare  Act  since  1954.^°  The 
penalty  under  the  Child  Welfare  Act  is  a  fine  of  not  more 
than  $100  for  the  first  offence  and  not  more  than  $200  for  a 
subsequent  offence  or  imprisonment  for  not  more  than  one 
year.^^ 

The  provisions  of  the  Child  Welfare  Act  and  the  Liquor 
Licence  Act  should  be  reconciled. 


*^Regina  v.  Allied  Towers  Merchants  Ltd.,  [1965]  2  O.R.  628. 
"R.S.O.  1960,  c.  218,  s.  59. 
''"Ont.  1954,  c.  8,  s.  31(2). 
"Ont.  1965,  c.  14,  s.  40(2). 


1860         The  Liquor  Licence  Board  of  Ontario 

Power  of  Arrest  without  a  Warrant 

"Any  constable  or  other  police  officer  may  arrest  without  a 
warrant  any  person  whom  he  finds  committing  an  offence 
against  this  Act  or  the  regulations.""^ 

We  dealt  wuth  this  section  in  Report  Number  1^^  and 
there  stated  that  we  thought  it  was  hard  to  justify  the  power 
of  arrest  without  a  warrant  for  many  of  the  offences  created 
under  the  Liquor  Licence  Act  or  the  regulations.  The  pro- 
visions of  the  Act  and  the  offences  created  thereunder  con- 
demn this  wide  power  of  arrest  without  a  warrant. 

RESTRICTIONS  ON  USE  OF  INFORMATION 
OBTAINED 

"No  member  of  the  Board,  registrar,  deputy  registrar,  offi- 
cial, inspector  or  employee  of  the  Board  is  compellable  to 
give  testimony  in  a  court  of  civil  jurisdiction  with  regard  to 
information  obtained  by  him  in  the  discharge  of  his  official 
duty,  or  to  produce  any  files,  papers,  information,  reports, 
correspondence  or  other  documents  relating  to  the  business 
of  the  Board. "5^ 

This  section  puts  restrictions  on  the  use  of  information 
obtained  by  members  of  the  Board  and  its  employees  insofar 
as  the  administration  of  justice  is  concerned  but  it  puts  no 
restrictions  on  otherwise  communicating  such  information. 

We  see  no  reason  why  the  courts  should  be  barred  from 
obtaining  such  information.  On  the  other  hand,  the  Board 
and  its  officers  should  not  be  permitted  to  communicate 
information  obtained  in  the  course  of  their  duties  otherwise 
than  required  for  the  purposes  of  the  Act  or  by  legal  process. 

RECOMMENDATIONS 

1 .  The  legislation  governing  meetings  of  the  Liquor  Licence 
Board  of  Ontario  and  the  exercise  of  its  powers  should 
be  completely  reviewed.  The  Board  should  act  only 
through  a  quorum  of  its  members,  except  when  it  renews 
licences  where  no  objections  have  been  made.    In  such 


'^R.S.O.  1960,  c.  218,  s.  59. 

'p.  733  supra. 

*R.S.O.  1960,  c.  218,  s.  11. 


Cluq)lerll6  1861 

case  it  should  ha\e  power  to  delegate  its  powers  to  a 
member. 

2.  If  it  is  necessary  for  a  member  to  hold  a  meeting  relevant 
to  a  matter  that  must  be  decided  by  the  Board  the  mem- 
ber's powers  should  be  clearly  defined  and  he  should  be 
required  to  make  a  written  report  which  shoidd  be 
furnished  to  the  party  affected  who  should  have  an 
opportunity  to  be  heard  by  the  Board  with  respect  there- 
to if  he  so  desires. 

3.  To  the  extent  that  the  Board  exercises  judicial  pow'ers 
it  should  hear  evidence  directly  and  it  should  not  rely 
upon  the  report  of  a  delegate. 

4.  The  power  of  the  Board  to  limit  the  number  of  licences 
that  may  be  issued  in  any  municipality  should  be  subject 
to  the  approval  of  the  Lieutenant  Governor  in  Council. 

5.  Standards  relating  to  a  person's  entitlement  to  a  licence 
should  be  contained  in  the  Act. 

6.  The  provision  in  section  41(1)  requiring  "the  holder  of 
a  licence  to  show  cause  why  the  licence  should  not  be 
cancelled  or  suspended"  should  be  repealed. 

7.  Before  a  licence  may  be  revoked  or  cancelled  the  holder 
of  the  licence  should  be  given  notice  of  the  hearing  set- 
ting out  the  allegations  made  against  him  and  a  reason- 
able opportunity  to  meet  them. 

8.  The  Board  should  be  required  to  give  reasons  in  all  cases 
where  it  cancels  a  licence. 

9.  The  privative  clause  contained  in  section  20  should  be 
repealed. 

10.  The  right  of  appeal  by  w^ay  of  stated  case  conferred  by 
section  20,  incorporating  the  Criminal  Code,  is  not 
appropriate  for  application  to  orders,  decisions  and 
rulings  of  the  Board.  In  any  event,  it  should  extend  to 
"a  person  affected  by  a  decision,  order  or  ruling"  of  the 
Board. 

11.  The  right  of  appeal  to  a  district  or  comity  court  judge, 
now  conferred  by  the  Act,  should  lie  to  the  Divisional 
Court  of  the  High  Court  of  Justice. 


1862         The  Liquor  Licence  Board  of  Ontario 

12.  The  Act  should  provide  for  a  right  of  appeal  from  deci- 
sions refusing  to  issue  or  renew  a  licence  or  suspending 
a  licence. 

13.  The  power  to  commit  for  contempt  of  the  Board's  order 
should  be  exercised  by  the  Supreme  Court  of  Ontario  as 
recommended  in  Report  Number  1 . 

1 4.  The  power  of  search  and  seizure  of  the  Board  should  be 
limited  by  some  objective  standards.  The  Board  should 
not  have  power  to  have  its  accountant  examine  the  books 
and  records  of  persons  other  than  licensees. 

15.  The  power  of  search  and  seizure  under  section  18(1)  of 
the  Act  should  be  confined  to  licensed  establishments. 

16.  All  witnesses  compelled  to  attend  for  the  purpose  of 
proceedings  under  the  Act  should  be  paid  proper  witness 
fees. 

17.  The  Act  should  provide  for  an  appeal  from  arbitration 
decisions  respecting  compensation  under  section  48. 

18.  Where  the  Board  wrongfully  disqualifies  premises  it 
should  be  compelled  to  compensate  the  owner  for  loss 
suffered. 

19.  The  body  to  fix  compensation  under  section  48  should 
be  the  Land  Compensation  Board. 

20.  Section  56  imposing  liability  on  a  parent  or  guardian  for 
leaving  a  child  under  the  age  of  eight  years  unattended 
should  be  reconciled  with  the  Child  Welfare  Act, 

21.  Section  59  enabling  the  arrest  of  a  person  without  a 
warrant  who  is  found  committing  an  offence  against  the 
Act  or  the  regulations  should  be  completely  reviewed 
and  the  provisions  not  coming  within  the  recommenda- 
tions contained  in  Report  Number  P^  should  be  re- 
pealed. 

22.  Section  1 1  should  be  recast  so  as  to  restrain  the  Board,  its 
members,  or  its  staff  from  communicating  information 
obtained  in  the  course  of  their  duties  otherwise  than  may 
be  necessary  for  the  purposes  of  the  Act  or  as  required  by 
legal  process. 

"p.  741  supra. 


I 


CHAPTER  117 

The  Milk  Commission 
of  Ontario 

INTRODUCTION 

1  HE  Milk  Act,  1965^  is  a  kindred  Act  to  the  Farm 
Products  Marketing  Act^  which  we  discuss  in  Chapter  112. 
The  purpose  of  the  Act  is  "to  provide  for  the  control  and 
regulation  in  any  and  all  respects  of,  (a)  the  marketing  within 
Ontario  of  milk,  cream  or  cheese,  or  any  combination  thereof, 
including  the  prohibition  of  such  marketing  in  whole  or  in 
part;  and  (b)  the  quality  of  milk,  milk  products  and  fluid  milk 
products  within  Ontario."^ 

The  methods  of  control  and  regulation  are  similar  to 
those  provided  in  the  Farm  Products  Marketing  Act.  Some 
matters  common  to  both  statutes,  which  are  discussed  in  detail 
in  Chapter  112  will  be  mentioned  briefly  in  this  Chapter  with 
cross-references. 

The  Milk  Act,  1965  differs  from  the  Farm  Products 
Marketing  Act  in  one  significant  respect.  The  Milk  Act  is 
not  only  concerned  with  the  economics  of  the  marketing  of 
milk  and  milk  products  but,  also,  with  the  quality  of  the 
product  and  with  public  health. 

There  are  arguments  in  favour  of  bringing  the  marketing 
of  milk  and  milk  products  under  the  Farm  Products  Market- 
ing Act.  Some  confusion  now  exists  between  the  two  Acts. 
In  Chapter  112  we  refer  to  the  possible  confusion  resulting 
from  the  inclusion  of  "dairy  products"  in  the  definition  of 

^Ont.  1965,  c.  72  amended  by  Ont.  1967,  c.  53  and  Ont.  1968-69,  c.  67. 
-R.S.O.  1960,  c.  137. 
"Ont.  1965,  c.  72,  s.  2. 

1863 


1864  The  Milk  Commission  of  Ontario 

"farm  products".  One  central  authority  might  be  given  juris- 
diction over  all  farm  products.  One  recent  study  recom- 
mended this.^  However,  three  other  studies,  one  of  them 
relating  to  marketing  of  milk  in  British  Columbia,  have  firmly 
recommended  against  it.^  It  is  not  our  function  to  make 
recommendations  with  respect  to  these  conflicting  views. 
However,  it  would  appear  that  good  reasons  are  advanced 
why  the  production  and  distribution  of  milk  should  be  under 
separate  control  from  other  farm  products  and  dealt  with  by 
a  statute  relating  solely  thereto. 

The  philosophy  underlying  the  legislation  affecting  the 
marketing  of  milk  and  milk  products  in  Ontario  has  been  a 
developing  one.  In  the  early  thirties  the  milk  industry  was 
in  a  very  disorganized  state.  Milk  w^as  being  sold  to  consumers 
at  retail  prices  below  the  cost  of  production  at  the  farm.  Com- 
petition in  the  distribution  of  dairy  products  was  keen  and 
"give  away"  practices  were  common.  It  was  to  relieve  against 
this  condition  that  the  first  Milk  Control  Act*^  was  passed.^ 

In  1965  the  Ontario  Milk  Industry  Inquiry  Committee 
(known  as  the  "Hennessey  Committee")  reported: 

"The  nature  of  the  industry  requires  that  careful  attention 
be  directed  to  the  determination  of  the  extent  to  which 
competitive  forces  should  be  permitted  to  operate,  and  to 
the  establishment  of  the  nature  of  the  competition  that 
should  be  permitted.  For  example,  we  believe  that  free 
competition  bet^veen  producers  in  the  marketing  of  raw 
milk  cannot  help  but  lead  to  destructive  competition,  and 
a  price  level  well  below  that  necessary  to  maintain  a  suitable 
level  of  income.  Processings,  manufacturing,  and  distribution 
seem  to  represent  activities  best  left  with  substantial  freedom 
for  competitive  forces  to  act.  This  latter  contention  can  be 
disputed  and  no  doubt  will  be  challenged,  but  we  consider 
it  to  be  a  valid  view."^ 

Following  the  report  of  the  Committee,  the  Milk  Act,  1965 
was  passed. 

*Agricultural  Marketing  Enquiry  Committee  Report  (June,  1961),  92. 

^Ontario  Royal  Commission  on  Milk  Report  (1947),  27;  British  Columbia 
Royal  Commission  on  Milk  Report  (1954-55),  161  and  Ontario  Milk 
Industry  Inquiry  Commitee  Report  (January,  1965),  125-26. 

"Ont.  1934,  c.  30. 

■'Report  of  Royal  Commission  on  Milk  (1947),  147. 

^Hennessey  Committee  Report  (1965),  123. 


Chapter  117  1865 

Under  our  Terms  of  Reference  we  are  not  recjuired  to 
consider  the  policy  of  the  Act.  Our  only  concern  is  whether 
there  are  within  the  legal  framework  provided  to  carry  out 
the  policy  inijiistified  encroachments  on  the  civil  rights  of 
individuals  and  whether  proper  safeguards  have  been  pro- 
vided against  the  abuse  of  the  wide  powers  of  decision  that 
have  been  conferred  on  bodies  and  persons  under  the  Act. 
We  endorse  the  view  expressed  in  the  Hennessey  Report  that 
there  should  be  a  "minimum  practicable  degree  of  govern- 
mental control  and  participation.""  We  emphasize  the  word 
"practicable";  what  is  practicable  depends  on  the  nature  of 
the  problems  existing  in  the  milk  industry  and  the  basic 
policies  adopted  to  cope  with  them.^" 

THE  MILK  COMMISSION  OF  ONTARIO  AND 
THE  MARKETING  BOARDS 

Similar  to  the  legislative  structure  for  control  and  regula- 
tion of  the  marketing  of  farm  products  in  the  Farm  Products 
Marketing  Act,  the  Milk  Act,  1965  provides  for  the  creation 
of  the  Milk  Commission  of  Ontario  (the  counterpart  of  the 
Farm  Products  Marketing  Board)  to  which  we  shall  hereafter 
refer  as  "the  Commission"  and  marketinsr  boards  which  have 

o 

jurisdiction  confined  to  particular  products,  (the  counterpart 
of  the  local  boards).  While  there  are  19  local  boards  estab- 
lished under  the  Farm  Products  Marketing  Act^^  there  are 
only  two  established  under  the  Milk  Act,  1965: 

The  Ontario  Milk  Marketing  Board  controllinor  the  market- 
ino;  of  milk  and  cheese,  and 

The  Ontario  Cream  Producers'  Marketing  Board  controlling 
the  marketing  of  cream. 

The  Commission  and  the  marketing  boards  are  bodies 
corporate.  ^^ 

The  Commission  "shall  be  composed  of  not  fewer  than 
three  members  who  shall  be  appointed  by  and  hold  office 

^Ibid.,  4. 

^"Attention  is  drawn  to  the  General  Farm  Organization  Act   1968-69,  Ont. 

1968-69,  c.  42,  s.  3(3)  which  has  not  been  proclaimed  since  the  vote  taken 

under  s.  2  was  unfavourable. 
''See  Chapter  112,  p.  1764  supra. 
''Ont.  1965,  c.  72,  ss.  3(1),  7(4). 


1866         The  Milk  Commission  of  Ontario 

during  the  pleasure  of  the  Lieutenant  Governor  in  Coun- 
cil."^^  Unlike  the  Farm  Products  Marketing  Board  the  Com- 
mission is  "responsible  to  the  Minister. "^^ 

We  shall  discuss  later  whether  the  Commission  should 
be  responsible  to  the  Minister.^^ 

A  majority  of  the  members  of  the  Commission  constitutes 
a  quorum. ^*^ 


THE  PLAN 

As  in  the  Farm  Products  Marketing  Act,  the  chief  method 
of  control  under  the  Milk  Act  is  the  marketing  plan.^"^  A  plan 
is  defined  as  a  "plan  ...  to  provide  for  the  control  and  regula- 
tion of  the  marketing  of  milk,  cream  or  cheese,  or  any  com- 
bination thereof. "^^  Procedure  is  provided  -^vhereby  producers 
may  initiate  the  establishment  of  a  plan  but  the  plan  must  in 
any  case  be  established  by  regulation  made  by  the  Lieutenant 
Governor  in  Coiuicil  and  the  Lieutenant  Governor  in  Coun- 
cil may  establish  a  plan  even  where  the  procedure  has  not 
been  initiated  by  producers.  The  Act  provides: 

"6.  (1)  Where  the  Commission  receives  from  a  group  of 
producers  in  Ontario  or  any  part  thereof  a  petition 
or  request  that  a  plan  be  established  for  the  control 
and  regulation  of  the  marketing  of  milk,  cream  or 
cheese,  or  any  combination  thereof,  and  the  Com- 
mission is  of  the  opinion  that  the  group  of  producers 
is  representative  of  the  producers  affected  by  the 
proposed  plan,  the  Commission  may  recommend  the 
establishment  of  such  a  plan  to  the  Minister." 

"7.    (1)  Notwithstanding  section  6,  the  Lieutenant  Governor 

in  Council  may  make  regulations, 

(a)  establishing,  amending  and  revoking  plans  for 
control  and  regulation  of  the  marketing  within 
Ontario  or  any  part  thereof  of  milk,  cream  or 
cheese,  or  any  combination  thereof,  and  con- 
stituting marketing  boards  to  adininister  such 
plans. "^^ 


"/&?W.,  s.  3(2). 

^*Ibid.,  s.  3(1). 

^°See  p.  1878  inha  under  Licensing  Powers. 

"Ont.  1965,  c.  72,  s.  3(4). 

''See  Chapter  112,  pp.  1764-65  supra. 

'"Ont.  1965,  c.  72,  s.  1,  para.  21. 

'V&/d.,  ss.  6,  7. 


Chapter  117         1867 

The  Milk  Coniniission  is  not  bound  to  conduct  a  plebis- 
cite of  prodticers  before  forming  tlie  opinion  that  a  group  of 
producers  presenting  a  petition  recjuesting  that  a  plan  be 
established  is  representati\'e  of  the  producers  affected  by  the 
proposed  plan  but  it  has  power  to  do  so.-" 

Existing  Plans 

There  are  three  plans  established  under  the  Milk  Act, 
1965  covering  respectively  milk,  cheese  and  cream. 

Milk 

Under  a  regulation  passed  by  the  Lieutenant  Gover- 
nor in  Council  the  Ontario  Milk  Marketing  Board  has  been 
established-^  for  the  control  and  regulation  of  the  marketing 
within  Ontario  of  milk  and  cheese.  The  Lieutenant  Governor 
in  Council  is  required  to  appoint  to  the  Board  persons  who 
have  been  elected  by  the  producers  according  to  an  elaborate 
system  of  election,  which  we  need  not  discuss  in  detail.  The 
effect  of  this  procedure  is  to  bring  the  regulations  passed  by  the 
Ontario  Milk  Marketing  Board  within  the  Regulations  Act-- 
and  require  them  to  be  published  in  the  Ontario  Gazette. 

The  plan  contains  no  provisions  other  than  those  estab- 
lishing the  Board  and  providing  for  the  election  and  appoint- 
ment of  its  members. 

The  Milk  Commission  has  passed  certain  regulations 
relating  to  the  control  and  regulation  of  the  marketing  of 
milk.^^  These  include  the  delegation  to  the  Ontario  Milk 
Marketing  Board  of  power  to  make  regulations  respecting 
the  "licensing  of  any  or  all  persons  before  commencing  or 
continuing  to  engage  in  the  producing  of  milk";-^  the  "mar- 
keting of  milk  on  a  quota  basis'';-^  the  "requiring  any  person 
who  produces  milk  to  offer  to  sell  and  to  sell  the  milk  to  or 
through    the    marketing    board";-'''    the    authorizing   of    the 

'°Ibid.,s.  8(1),  para.  41. 

"O.  Reg.  202/65  as  amended  by  O.  Regs.  250/65,  43/66,  304/67,  360/67,  2/68, 

3/69,  27/69,  123/69  and  500/69. 
""R.S.O.  1960,  c.  349,  ss.  1(d),  2,  5. 
'"O.  Reg.  294/65  as  amended  by  O.  Regs.  160/66,  201/66,  261/66,  390/66, 

194/67,  58/68  and  216/68. 
'^O.  Reg.  294/65,  s.  6(a). 
^^Ibid.,  s.  6(0(i). 
"-'Ibid.,  s.  6(o). 


1868  The  Milk  Commission  oj  Ontario 

marketing  board  "to  determine  from  time  to  time  the  price 
or  prices  that  shall  be  paid  to  producers  or  the  marketing 
board  for  milk  or  any  class  or  grade  of  milk,  and  to  determine 
different  prices  for  different  parts  of  Ontario"-"  and  other 
important  matters. 

By  several  regulations,  the  Ontario  Milk  Marketing 
Board  has  provided  that:  "e^'ery  producer  shall  offer  to  sell 
and  sell  the  milk  produced  by  him  to  the  marketing  board" ;-^ 
that  all  "grade  A  milk  bought  by  a  marketing  board  from  a 
producer  shall  be  sold  by  the  producer  and  bought  by  the 
marketing  board  on  a  quota  basis";-^  that  the  "marketing 
board  may  fix  and  allot  to  persons  quotas  for  the  marketing 
of  milk  on  such  basis  as  the  marketing  board  deems  proper";^" 
that  "no  person  shall  commence  or  continue  to  engage  in  the 
producing  of  milk  except  under  the  authority  of  a  licence  as 
a  producer  of  milk  in  Form  1";^^  that  "all  milk  supplied  to  a 
plant  that  is  used  for  processing  into  milk  products  shall  be 
sold  and  purchased  for  not  less  than  a  minimum  price  of  (a) 
$3.54  per  100  pounds  for  milk  that  grades  1  or  2  on  a 
Resazurin  reduction  test  .  .  .  where  the  milk  tests  3.5  per  cent 
milk-fat"  ;^^  that  "where  the  marketing  board  sells  milk  to  a 
processor,  the  marketing  board  shall  assign  to  the  processor  a 
sufficient  number  of  producers  to  supply  his  requirements  for 
milk;^^  and  that  "every  transporter  shall  transport  milk  on  the 
terms  and  conditions"  of  O.  Reg  71/68.^^ 

Cheese 

The  "plan"  for  cheese  is  similar  to  the  plan  for  milk  and, 
as  we  have  said,  it  is  administered  by  the  Ontario  Milk  Market- 
ing Board. ^^ 

A  regulation  passed  by  the  Milk  Commissions*^  provides 
that:  "no  person  shall  commence  or  continue  to  engage  in 
the  buying  of  cheese  except  under  the  authority  of  a  licence 

^'Ihid.,  s.  7(a). 

"O.  Reg.  52/68,  s.  3(1). 

^''Ibid.,  s.  4(1). 

'"'Ibid.,  s.  4(2). 

"O.  Reg.  68/68,  s.  3(1). 

^'O.  Reg.  69/68,  s.  3(1). 

^=^0.  Reg.  70/68,  s.  7(1). 

"O.  Reg.  71/68,  s.  3(1). 

'^O.  Reg.  202/65  as  amended  by  O.  Reg.  44/66,  ss.  1,  2. 

""O.  Reg.  44/66. 


I 


Chaptc)  117  18G9 

in  Form  2";^"  power  to  make  regulations  upon  certain  matters 
with  respect  to  cheese  is  delegated  to  the  Ontario  Milk. 
Marketing  Board ;^^  and  "all  cheese  shall  be  offered  for  sale 
and  sold  by  auction  through  the  Belleville  Cheese  Exchange 
or  the  Stratford  Cheese  Exchange."^" 

Exercising  the  pow'ers  conferred  on  it  to  permit  exemp- 
tions from  the  regulations^*^  the  Ontario  Milk  Marketing 
Board  has  passed  a  regulation^'  exempting  certain  producers 
from  the  regulation  governing  the  sale  of  cheese  manufactured 
at  specific  plants. 

Cream 

The  Ontario  Cream  Producers'  Marketing  Board  was 
established  by  a  regulation"*-  passed  under  the  Milk  Industry 
Act^^  and  continued  in  force  under  the  provisions  of  the  Milk 
Act,  1965.^^  A  further  regulation  provided  that  "no  person 
shall  commence  or  continue  to  engage  in  the  production  of 
cream  except  under  the  authority  of  a  licence  as  a  producer 
of  cream  in  Form  1."^^  Certain  authority  has  been  delegated 
to  the  Ontario  Cream  Producers'  Marketing  Board."*^ 

The  Ontario  Cream  Producers'  Marketing  Board  does 
not  have  authority  to  make  regulations. 

The  confusion  in  the  structure  of  the  legislation  for 
establishing  plans  is  the  same  under  the  Milk  Act,  1965  as 
that  for  establishing  plans  under  the  Farm  Products  Marketing 
Act.^"  While  a  "plan"  is  defined  in  the  Milk  Act,  1965  as  "a 
plan  ...  to  provide  for  the  control  and  regulation  of  the 
marketinor  of  milk,  cream  or  cheese  .  .  ."^'*  and  the  Lieutenant 
Governor  in  Council  may  by  regulation  establish  plans,^^  in 
fact,  the  substance  of  all  marketing  legislation  is  made  entirely 

^Ubid.,  s.  3(1). 

^^Ibid.,  s.  6. 

^Ubid.,  s.  8(1). 

'"Ibid.,  s.  6(a). 

"O.  Reg.  367/66. 

*-R.R.O.  1960,  Reg.  428  as  amended  by  O.  Regs.  256/65  and  287/65. 

"R.S.O.  1960,  c.  239. 

"Ont.  1965,  c.  72,  s.  27. 

"R.R.O.  1960,  Reg.  427  as  amended  by  O.Regs.  286/65  and  307/67. 

*^Ibid.,  s.  6  as  amended  by  O.Reg.  286/65  and  s.  7. 

*'See  Chapter  112,  pp.  1764-68. 

"Ont.  1965,  c.  72,  s.  1,  para.  21. 

'Ubid.,  s.  7(1). 


1870  The  Milk  Commission  of  Ontario 

by  the  Milk  Commission  and  the  Ontario  Milk  Marketing 
Board. 

The  Commission  may  require  a  marketing  board  to  vary 
the  purpose  of  a  plan  as  the  Commission  deems  necessary. 
The  approval  of  the  Lieutenant  Governor  in  Council  is  not 
required  for  the  exercise  of  this  power. ^'^  The  Lieutenant 
Governor  in  Council  should  approve  and,  therefore,  be  re- 
sponsible for,  the  actual  plans  made  under  the  Act  and  any 
variations  of  plans. 

We  recommend  that  the  regulations  made  by  the  Com- 
mission and  the  Ontario  Milk  Marketing  Board  should  not 
come  into  effect  until  approved  by  the  Lieutenant  Governor 
in  Council. 

SCOPE  OF  THE  POWERS  OF  THE  COMMISSION 
AND  BOARDS-DEFINITIONS 

"  'Milk  product'  means  any  product  processed  or  derived  in 
whole  or  in  part  from  milk,  and  includes  cream,  butter, 
cheese,  cottage  cheese,  condensed  milk,  milk  powder,  dry 
milk,  ice  cream,  ice  cream  mix,  casein,  malted  milk,  sherbet 
and  such  other  products  that  are  designated  as  milk  products 
in  the  regulations."^''^ 

The  power  to  define  milk  products  by  regulation  so  as 
to  bring  products  within  the  provisions  of  the  Act  is  an 
extraordinarily  broad  one  and  may  be  exercised  under  two 
different  provisions  of  the  Act. 

Under  section  18,  paragraph  42  the  Commission,  subject 
to  the  approval  of  the  Lieutenant  Governor  in  Council,  may 
make  regulations  "designating  as  a  milk  product  any  product 
processed  or  derived  in  whole  or  in  part  from  milk."  Under 
section  8(1),  paragraph  39  the  Commission  may  (without  the 
approval  of  the  Lieutenant  Governor  in  Council)  make 
regulations  "designating  as  a  milk  product  any  product  pro- 
cessed or  derived  in  whole  or  in  part  from  milk." 

The  powers  are  identical.  It  is  hard  to  understand  what 
the  Legislature  meant.  One  asks  oneself  the  question:  can 
the  Commission  exercise  the  broad  po-^vers  under  section 
8(1)  paragraph  39  to  extend  the  scope  of  the  Act  by  definition 

^"Ibid.,  s.  8(8). 

°^Ibid.,  s.  1,  para.  18.  Italics  added. 


Chapter  117         1871 

and  without  the  approval  of  the  Lieutenant  Governor  in 
Council? 

In  any  case,  by  the  exercise  oi  the  power  of  definition  of 
"milk  products"  the  scope  of  the  Act  may  be  extended  beyond 
anything  envisaged  by  the  Legislature.  The  type  of  "other 
products"  that  may  be  designated  as  milk  prodticts  in  the 
regulations  is  not  limited  by  anything  in  the  Act— other  than 
what  is  set  out  in  the  "regulations"  which  are  defined  to  mean 
"regulations  made  under  this  Act"'*-  and  by  the  words 
products  "processed  or  derived  in  whole  or  in  part  from 
milk."^3 

Apart  from  the  criticism  that  the  power  to  enlarge  the 
scope  of  the  Act  should  not  be  delegated  either  to  the  Lieu- 
tenant Governor  in  Council  or  the  Commission  the  language 
"any  product,  processed  or  derived  in  whole  or  in  part  from 
milk"  is  too  broad.  These  words  w^ould  include  cake  mixes, 
pies  and  countless  other  food  products  in  no  way  related  to 
the  legislative  scheme.  In  legislation  of  this  sort  the  Legisla- 
ture should  direct  its  mind  to  specific  matters  in  framing  the 
scope  of  the  statute.  It  should  not  use  vague  and  general 
terms  w^hen  conferring  wide  powers  of  control.  Under  the 
definition  of  milk  products  used  in  this  Act  the  Commission 
would  have  power  to  launch  an  inquiry  into  the  sale  of  milk- 
shakes and  chocolate  bars.^^  It  would  enable  a  field-man  to 
require  a  drug  store  selling  ice  cream  cones  to  furnish  copies 
of  all  records  relating  to  the  sale  of  such  products. ^^  This 
may  have  been  intended  by  the  draftsman  but,  if  so,  we  doubt 
that  the  members  of  the  Legislature  thought  so  when  they 
voted  on  the  Bill  when  it  came  before  the  House.  Where  wide 
powers  are  to  be  given  to  control  articles  of  commerce  the 
Legislature  should  be  the  body  that  defines  what  should  be 
controlled.  The  Legislature  should  be  the  sole  architect  of 
the  scope  of  a  statute. 

The  Commission,  in  a  regulation  approved  by  the  Lieu- 
tenant Governor  in  Council,  has  exercised  its  power  of 
definition  of  milk  products. ^^    The  products  defined  in  the 

'Hbid.,  s.  1,  para.  28. 

"Ibid.,  s.  8(1),  para.  39  and  s.  18,  para.  42. 

^*rbid.,  s.  4(2)(a). 

"Ibtd.,  s.  5(d). 

"O.  Reg.  107/66. 


1872         The  Milk  Commission  of  Ontario 

regulation  are  products  which  could  well  have  been  enumer- 
ated in  the  statute. 

The  objections  to  the  delegation  of  the  po^ver  to  define 
products  which  come  within  the  Act  w'hich  we  have  been 
discussing  apply  with  greater  force  to  the  power  of  the  Com- 
mission to  sub-delegate  this  power  to  a  marketing  board. ^'^ 

The  scope  of  the  Act  should  be  determined  by  the 
Legislature  and  the  sections  conferring  power  on  subordinate 
bodies  to  extend  the  scope  of  the  Act  by  the  definition  of  milk 
products  should  be  repealed. 

The  definitions  in  the  Act  itself  give  to  it  a  very  wide 
scope. 

"Marketing"  is  defined  as: 

"buying,  selling  and  offering  for  sale,  and  includes  advertis- 
ing, assembling,  storing,  distributing,  financing,  packing  and 
shipping  and  transporting  in  any  manner  by  any  person,  and 
'market'  and  'marketed'  have  corresponding  meanings."^^ 

Section  8(1),  paragraph  1  authorizes  the  Commission  to 
make  regulations  "providing  for  the  licensing  of  any  or  all 
persons  before  commencing  or  continuing  to  engage  in  the 
producing,  processing  or  marketing  of  a  regulated  product. "^^ 
In  its  present  form  the  Commission  has  power  to  require 
everyone  who  continues  to  buy  milk  to  have  a  licence.^*' 

Sections  in  the  statute  conferring  powers  of  investiga- 
tion^^ use  the  expression  "marketing  of  milk  or  milk 
products."  These  sections  confer  wide  powers  to  investigate 
matters  completely  disassociated  from  the  normal  business  of 
marketing  milk  in  Ontario. 

The  words,  "transporting",  and  "financing"  in  the  para- 
graph defining  marketing  are  wide  enough  to  cover  many 
situations  quite  unrelated  to  the  true  objectives  of  the  Act.*^- 

'Troducer"  is  defined  as  "a  producer  of  milk,  cream  or 
cheese. "^^    It  would  appear  that  any  person  owning  a  milk 

"Ont.  1965,  c.  72,  s.  8(6). 

^^Ibid.,  s.  1,  para.  15. 

'^Ibid.,  s.  8(1),  para.  1.  Italics  added. 

""The  Interpretation  Act,  R.S.O.  1960,  c.  191,  s.  6  provides  that  where  an  Act 
confers  power  to  make  regulations  "expressions  used  therein,  unless  the 
contrary  intention  appears,  have  the  same  meaning  as  in  the  Act  conferring 
the  power." 

"See  for  example  Ont.  1965,  c.  72,  ss.  4(2)(a),  5. 

"^See  Farm  Products  Marketing  Board,  Chapter  112,  pp.  1763ff  supra. 

'"Ont.  1965,  c.  72,  s.  1,  para.  25. 


Chapter  117         1873 

cow  is  potentially  liable  to  be  compelled  to  submit  to  all  of 
the  various  controls  in  the  Milk  Act,  1965  relating  to  pro- 
ducers. This  definition  of  producer  may  be  usefully  con- 
trasted with  the  definition  of  producer  in  the  Milk  Industry 
Act:  "a  producer  of  milk  or  cream  jor  sale."^'^  This  limits 
the  scope  of  the  definition  to  commercial  activities  related 
to  the  production  of  the  milk  or  cream. ^^  Similar  useful 
comparison  may  be  made  between  the  definitions  of  "proces- 
sor" and  "transporter"  used  in  the  Milk  Act,  1965  and  in  the 
Milk  Industry  Act.  In  the  Milk  Act,  1965  "processor"  is 
defined  as  "a  person  engaged  in  the  processing  of  milk 
products  or  fluid  milk  products."*'*'  This  would  include  the 
separation  of  cream  from  milk.  In  the  Milk  Industry  Act 
"processor"  is  defined  as  "a  person  engaged  in  the  business  of 
manufacturing  milk  products. "^^  In  the  Milk  Act,  1965 
"transporter"  is  defined  as  "a  person  transporting  milk  or 
cream"^^  and  in  the  Milk  Industry  Act  it  is  defined  as  "a 
person  engaged  in  the  business  of  transporting  milk  or 
cream. "^'^ 

Some  of  the  words  of  definition  are  an  integral  part  of 
the  offences  created  under  the  Act.  All  w^ords  of  definition 
including  "marketing,"  "producer,"  "processor"  and  "trans- 
porter" should  be  restricted  to  the  relative  necessities  and 
purposes  of  the  Act.  It  is  an  unwarranted  encroachment  on 
the  rights  of  the  individual  to  create  a  broad  spectrum  of 
offences  that  are  not  intended  to  be  in  force  but  simply  to 
relieve  the  draftsmen  of  the  task  of  expressly  defining  the 
intended  purposes  of  the  Act. 

SUBORDINATE  LEGISLATIVE  POWER  AND 
THE  SUB-DELEGATION  OF  SUBORDINATE 
LEGISLATIVE  POWER 

The  Milk  Commission  may  make  regulations, 

"providing  for  the  control  and  regulation  of  the  marketing 
of  any  regulated  product,  including  the  times  and  places  at 
which  the  regulated  product  may  be  marketed. ""° 

'^R.S.O.  1960,  c.  239,  s.  1,  para.  29.  Italics  added. 

*'This  Act  was  repealed  by  the  Milk  Act,  1965,  Ont.  1965,  c.  72,  s.  29. 

""Ont.  1965,  c.  72,  s.  1,  para.  24. 

*"R.S.O.  1960,  c.  239,  s.  1,  para.  28.   Italics  added. 

""Ont.  1965,  c.  72,  s.  1,  para.  29. 

"R.S.O.  1960,  c.  239,  s.  1,  para.  32.   Italics  added. 

'°Ont.  1965,  c.  72,  s.  8(1),  para.  13. 


1874         The  Milk  Commission  of  Ontario 

The  scope  of  the  power  delegated  to  the  Commission  in 
this  paragraph  is  too  wide  and  imprecise.  There  are  no 
standards  or  guides  laid  down  for  the  exercise  of  the  power 
delegated  to  the  Commission,  nor  are  there  standards  or 
guides  relating  to  the  exercise  of  its  power  to  sub-delegate 
legislative  powers  to  marketing  boards.  The  Commission  may 
make  laws  touching  on  any  matter  that  comes  within  the 
ambit  of  the  Act  itself.  This  provision  would  appear  to  be 
inserted  as  a  sort  of  omnibus  legislative  power  to  cover  cases 
where  the  Commission  might  go  beyond  the  specific  pro- 
visions conferring  powder  to  regulate  or  delegate.  It  serves  to 
shield  loose  formulation  of  policy  and  imprecise  draftsman- 
ship. It  should  be  repealed. 

The  Commission  may  make  regulations  authorizing  any 
marketing  board  to  prohibit  the  marketing  of  any  class, 
variety,  grade  or  size  of  any  regulated  product.'^  It  could  by 
the  exercise  of  its  power  to  define  milk  products  authorize 
a  marketing  board  to  prohibit  the  marketing  of  any  product 
derived  in  whole  or  in  part  from  milk. 

No  doubt  the  Commission  should  have  power  to  prohibit 
the  sale  of  milk  products  that  have  an  unsafe  bacteriological 
count  or  are  unpasteurized  or  do  not  meet  certain  standards. 
But  under  this  section  the  Commission  may  confer  power  on  a 
marketing  board  to  prohibit  the  sale  of  skim  milk,  cheddar 
cheese  or  milk  chocolate  bars. 

The  powers  of  prohibition  under  the  Act  should  be 
strictly  defined.  What  we  have  said  with  reference  to  the 
power  of  the  Commission  to  prohibit  applies  with  greater 
force  to  the  power  conferred  on  the  Commission  to  sub- 
delegate  to  a  marketing  board  any  of  the  wide  range  of  powers 
conferred  on  the  Commission. '^^  If  exercised,  this  power 
would  enable  a  marketing  board  to  legislate  on  any  matter 
within  the  ambit  of  the  Act  with  no  specific  guidelines. 

The  power  of  sub-delegation  is  still  wider.  The  Com- 
mission may  authorize  "any  officer  or  field-man  to  exercise 
such  of  its  powers  as  it  deems  necessary  and  to  report  thereon 
to  the  Commission. "^^ 

'^Ihid.,  s.  8(1),  para.  32. 
'Hbid.,  s.  8(6). 
'"Ibid.,  s.  4(2)(j). 


Chapter  117         1875 

This  provision  enables  the  Commission  to  delegate  to  an 
officer  or  a  field-man  not  only  the  whole  range  of  its  admini- 
strative powers  but  its  judicial,  legislative  and  investigative 
powers  as  well.  These  powers  of  delegation  should  be  limited 
to  minor  matters  appropriate  for  delegation  to  officers  and 
field-men. 

Not  only  has  the  Commission  wide  powers  to  delegate 
its  powers  to  officers  and  ficld-men  but  it  may  delegate  its 
powers  of  delegation  to  marketing  boards.  It  would  be 
possible  for  a  marketing  board,  when  authorized,  to  give 
authority  to  any  of  its  officers  to  exercise  wide  powers  of  the 
Commission.  There  appears  to  be  no  underlying  philosophy 
for  this  dispensation  of  legislative  powder. 

The  Commission,  subject  to  the  approval  of  the  Lieuten- 
ant Governor  in  Council,  may  make  regulations  exempting 
from  the  Act  or  the  regulations,  or  any  part  thereof,  "any 
plant  or  class  of  plants,  any  person  or  class  of  persons,  or  any 
milk  product  or  any  class,  variety  or  grade  of  milk  product.'"^* 
This  power  enables  the  Commission  in  effect  to  repeal  a 
portion  of  the  parent  Act.  We  condemned  legislation  of  this 
sort  in  Report  Number  1  and  recommended  that  powers  of 
definition  or  amendment  should  not  be  conferred  unless  they 
are  required  for  urgent  and  immediate  action. "^^ 

The  Commission  may  make  regulations  "providing  for 
the  exemption  from  any  or  all  of  the  regulations  under  any 
plan  of  any  class,  variety,  grade  or  size  of  regulated  product  or 
of  any  person  or  class  of  persons  engaged  in  the  producing  or 
marketing  of  the  regulated  product  or  any  class,  variety,  grade 
or  size  of  regulated  product.'"^®  The  effect  of  this  is  that  the 
Commission,  by  regulation,  may  repeal  parts  of  other  regula- 
tions passed  by  it  or  by  a  marketing  board.  It  is  conceivable 
that  it  could  give  power  to  the  Commission  to  pass  regulations 
repealing  parts  of  regulations  made  by  the  Lieutenant  Gov- 
ernor in  Council  if  the  expression  "regulations  under  any 
plan"  is  deemed  to  mean  and  include  regulations  which  are 
part  of  a  plan  established  by  the  Lieutenant  Governor  in 
Council  under  section  7(1)  of  the  Act.  The  paragraph  should 

''*Ibid.,  s.  18,  para.  63. 

"p.  348  supra. 

'"Ont.  1965,  c.  72,  s.  8(1),  para.  9. 


1876         The  Milk  Commission  oj  Ontario 

be  repealed  or  restricted  in  its  scope  to  that  which  is  essential 
for  the  purposes  of  the  Act.  In  any  case  such  amending  power 
should  be  subject  to  the  approval  of  the  Lieutenant  Governor 
in  Council. 

"25.(1)  Any  word  or  expression  used  in  the  Act  or  the  regulations 
may  be  defined  in  the  regulations  for  the  purpose  of  the 
regulations."^^ 

This  provision  alone  does  not  give  po^ver  to  the  Com- 
mission to  alter  the  scope  of  the  Act.  It  may  define  words  used 
in  the  Act  only  jor  the  purpose  oj  the  regulations.  Neverthe- 
less, it  is  inconsistent  with  what  we  said  in  Report  Number  P^ 
and  with  the  basic  principles  set  out  in  section  6  of  the 
Interpretation  Act'^  which  provides  that  "expressions  used 
[in  regulations],  unless  the  contrary  intention  appears,  have 
the  same  meaning  as  in  the  Act  conferring  the  power  [to  m:ike 
the  regulations]."  Section  25(1)  should  not  go  further  than  to 
give  power  to  define  words  used  in  the  Act  for  the  purposes 
of  the  regulations,  provided  that  the  definition  is  within  the 
ambit  of  the  meaning  of  the  ^vords  as  used  in  the  Act.  A  word 
used  in  the  Act  should  not  be  given  a  meaning  by  regulation 
at  variance  with  its  meaning  as  used  in  the  parent  statute. 

The  Commission  may  make  regulations  providing  that 
each  marketing  board  shall  file  with  the  Commission  "all 
orders,  directions  and  regulations  of  the  marketing  board. "^^ 
This  is  an  improvement  over  the  corresponding  section  of  the 
Farm  Products  Marketing  Act  which  requires  that  regula- 
tions may  be  made  providing  for  the  filing  of  "orders  and 
directions  of  the  local  board,"  but  not  the  regulations  of  the 
local  board,  with  the  Farm  Products  Marketing  Board. ®^ 

In  Report  Number  1  we  criticized  the  provisions  of  the 
Milk  Act.  1965  which  confer  power  on  the  Lieutenant  Gov- 
ernor in  Council  to  make  regiilations: 

"Notwithstanding  any  other  Act,  providing  for, 

(i)   the  carrying  out  by  the  Commission  or  a  trustee  of  any 
or  all  of  the  po^vers  of  a  marketing  board. 


'Ubid.,  s.  25(1). 

"pp.  345-348  supra. 

^'R.S.O.  1960,  c.  191. 

'°Ont.  1965,  c.  72,  s.  4(5)('a)(iii). 

"See  Chapter  112,  pp.  1771-72  supra. 


Chapter  117  hS77 

(ii)    the  vesting  ol   ilie  assets  ol  a  inarketing  board   in   tlie 

Commission  or  a  trustee,  and 
(iii)    the  disposing  ol  any  or  all  of  the  assets  of  a  marketing 

board  in  such  manner  as  is  presc  ribed, 
and,  where  any  regulation  made  under  this  clause  is  in  con- 
flict with  any  by-law  of  the  marketing  board,  the  regulation 
prevails. "^- 

Legislation  conferring  power  on  the  Executive  lo  over- 
ride Acts  of  the  Legislature  is  contrary  to  the  elementary 
principles  of  democratic  government.''^ 

This  power  and  that  which  enables  the  Lieutenant  Gov- 
ernor in  Council  to  make  regulations  "dissolving  a  marketing 
board  on  such  terms  and  conditions  as  he  deems  proper  and 
providing  for  the  disposition  of  its  assets"^^  are  of  an  adjudica- 
tive nature  and  should  provide  for  a  right  to  be  iieard  in 
accordance  with  the  Statutory  Powers  Procedure  Act  which 
we  have  recommended  in  Report  Number  l."'^  The  exercise 
of  the  powers  should  be  subject  to  stated  conditions  prece- 
dent.^** 

As  we  have  stated,  since  members  of  the  Ontario  Milk 
Marketing  Board  are  appointed  to  their  respective  positions 
by  the  Lieutenant  Governor  in  Council  the  regulations  of  this 
Board  are  required  to  be  filed  with  the  Registrar  of  Regula- 
tions and  published  in  the  Ontario  Gazette.  This  makes  them 
available  to  the  public.  However,  it  is  otherwise  with  regula- 
tions passed  by  the  Ontario  Cream  Producers'  Marketing 
Board.  The  members  of  this  Board  are  not  required  to  be 
appointed  by  the  Lieutenant  Governor  in  Council.  Their 
position  depends  solely  on  their  election  by  fellow  producers. '^^ 
Although  the  Board  has  not  passed  any  regulations,  not  at 
present  being  empowered  to  do  so,  it  w^ould  appear  that,  as  in 
the  case  of  local  boards  under  the  Farm  Products  Marketing 
Act.  the  regulations  which  such  a  Board,  when  so  empowered, 
might  pass  w^ould  not  have  to  be  filed  or  published  in  accord- 
ance with  the  Regulations  Act.  In  Report  Number  V^  wx 

«^Ont.  1965,  c.  72.  s.  7(l)(f). 

*'See  Ibid.,  s.  8(1),  para.  21.  See  also  pp.  343-45  supra. 

«*Ont.  1965,  c.  72,  s.  7(l)(g). 

'=pp.  2\2-\9  supra. 

*®See  Farm  Products  Marketing  Board,  Chapter  112,  pp.  1770-71  supra. 

«'R.R.O.  1960,  Reg.  428,  ss.  9,  10  as  amended  by  O.Regs.  256/65  and  287/65. 

"p.  366  supra. 


1878         The  Milk  Commissioyi  of  Ontario 

recommended  that  the  definition  of  "regulations"  in  the 
Regulations  Act*^  be  expanded  to  include,  as  far  as  possible, 
all  rules  made  in  the  exercise  of  sub-delegated  powers.  This 
recommendation,  if  implemented,  would  be  effective  to 
require  any  regulations  made  by  the  Ontario  Cream  Pro- 
ducers' Marketing  Board  to  be  filed  and  published. 

LICENSING  POWERS 

In  Report  Number  P*^  we  stated,  as  a  general  proposition, 
that  licensing  requirements  should  not  be  unnecessarily 
imposed.  The  Hennessey  Report,  to  which  we  have  already 
referred,  affirmed  the  validity  of  the  principle  of  "equal 
opportunity  for  everyone  to  engage  in  any  aspect  of  the  milk 
industry  and  equitable  treatment  for  all."'*^  This  is  a  sound 
principle  that  should  govern  all  licensing. 

Early  in  this  Chapter  we  pointed  out  that  the  Milk 
Commission  of  Ontario  is  a  body  corporate  "responsible  to 
the  Minister."^^  The  Commission's  decision-making  powers 
in  the  licensing  process  should  be  exercised  as  judicially  as 
possible. ^^  Licensing  under  this  Act  is  not  something  for  which 
the  Commission  should  be  responsible  to  the  Minister. 

"No  person  shall  operate  a  plant  without  a  licence  there- 
for from  the  Commission"  and  "no  person  shall  carry  on 
business  as  a  distributor  without  a  licence  therefor  from  the 
Commission. "^^ 

The  Commission  may  make  regulations  under  section 
8(1),  paragraph  3  "providing  for  the  refusal  to  issue  a  licence 
to  commence  to  engage  in  the  producing,  processing  or 
marketing  of  a  regulated  product  where  the  applicant  is  not 
qualified  by  experience,  financial  responsibility  or  equipment 
to  properly  engage  in  the  business  for  which  the  application 
w^as  made,  or  for  any  other  reason  that  the  Commission  deems 
proper. ''^^^  Notwithstanding  that  it  has  been  judicially 
decided  that   the   italicized  words  are   to   be  read   ejusdem 

««R.S.O.  1960,  c.  349,  s.  1(d). 

**p.  1096  supra. 

*^Report  of  the  Milk  Industry  Inquiry  Committee  (Januar)^  1965),  4. 

•==Ont.  1965,  c.  72,  s.  3(1). 

*^See  p.  1106  supra. 

"Ont.  1965,  c.  72,  s.  14. 

"Ibid.,  s.  8(1),  para.  3.  Italics  added. 


Chapter  117         1879 

generis  with  the  preceding  words,"*'  we  criticized  the  language 
of  this  section  in  Report  Number  1"^  as  misleading.  We 
recommend  the  deletion  of  the  italicized  words. 

"18.  Subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council,  the  Commission  may  make  regulations, 

1.  providing  for  the  issue,  renewal,  suspension  or  revocation 
of  or  refusal  to  issue  or  renew  licences  for  the  operation 
of  any  class  of  plant,  and  prescribing  the  fees  payable  for 
licences  or  the  renewal  thereof; 

2.  providing  for  the  issue,  renewal,  suspension  or  revocation 
of  or  refusal  to  issue  or  renew  licences  for  any  class  of 
distributor,  and  prescribing  the  fees  payable  for  licences 
or  the  renewal  thereof; 

3.  prescribing  the  terms  and  conditions  upon  which  licences 
under  paragraphs  1  and  2  are  issued,  renewed,  suspended 
or  revoked. "^^ 

Purporting  to  exercise  the  powers  conferred  under  these 
provisions  the  Commission  has  enacted  a  regulation  providing 
that  it  may  refuse  to  issue  a  licence  or  to  renew  a  licence  of 
any  distributor  "where,  in  the  opinion  of  the  Commission,  the 
distribution  area  or  municipality  or  part  thereof  in  respect  of 
which  the  application  is  made  is  already  adequately  served."^" 
This  regulation  demonstrates  the  wide  scope  of  the  power 
delegated  under  section  18,  paragraph  3  quoted  above. 

The  basic  terms  and  conditions  respecting  entitlement 
to  a  licence  should  be  set  out  in  the  Act  and  not  in  regulations 
made  thereunder. 

There  is  no  limitation  upon  the  type  or  nature  of  the 
terms  and  conditions  which  may  be  imposed  under  paragraph 
3.  It  is  to  be  noted  that  this  regulation  could  not  be  enacted 
under  section  8(1),  paragraph  3  of  the  Act  just  discussed 
because  that  paragraph  prescribes  standards  to  govern  the 
Commission  in  its  refusal  to  issue  a  licence. 

Standards  are  set  for  the  exercise  of  the  power  to  make 
regulations  concerning  the  refusal  to  issue  licences  for  those 
engaged  in  the  producing,  processing  or  marketing  of  a 
regulated  product  (section  8(1),  paragraphs  1,  2,  3)  but  no 

^"Brampton  Jersey  Enterprises  Ltd.  v.  Milk  Control  Board  [1956]  O.R.  1. 
*^p.  1099  supra,  and  see  also  Chapter  112,  p.  1776  supra. 
•*Ont.  1965.  c.  72,  s.  18,  paras.  1,  2  and  3. 

"R.R.O.  1960,  Reg.  432,  s.  46c(c)  as  amended  by  O.Reg.  86/66.  s.  1(c).  Italics 
added. 


1880         The  Milk  Commission  of  Ontario 

standards  are  set  controlling  the  power  to  make  regulations 
concerning  the  issue,  renewal,  suspension  or  revocation  of 
licences  for  the  operation  of  a  plant  (cheese  factory,  concen- 
trated milk  plant,  cream  receiving  station,  creamery,  dairy  or 
milk  receiving  station)  or  for  a  distributor  of  milk  (section  18, 
paragraph  3). 

The  subjective  term  set  out  in  the  regulation  "in  the 
opinion  of  the  Commission"  gives  to  it  wide  powders  to  refuse 
to  issue  a  licence  or  to  refuse  to  renew  one  which  are  difficult 
to  control  and  which  may  be  exercised  arbitrarily. ^°° 

The  words  "in  the  opinion  of  the  Commission"  should 
be  deleted. 

In  any  case,  there  should  be  a  right  of  appeal  from  the 
refusal  to  grant  a  licence  and  the  refusal  to  renew  a  licence  of 
a  distributor  on  the  groinid  that  the  area  or  miuiicipality  or 
part  thereof  in  respect  of  which  the  application  is  made  is 
adequately  served.  The  regulation  confers  a  power  on  the 
Commission  which  may  be  delegated  to  the  Board  to  make 
orders  of  far-reaching  consequences  to  both  consumers  and 
distributors  of  fluid  milk  products.  It  gives  the  Commission 
vast  poA\  ers  to  create  monopolies  and  if  so  disposed  to  bestow 
favours  w^ith  no  right  of  relief. 

In  this  regulation  there  is  no  provision  for  a  right  to  a 
hearing  and  there  are  no  rules  governing  the  exercise  of  the 
discretionary  power.  In  Report  Number  1  we  recommended 
that  the  power  to  limit  the  number  of  licences  issued  should 
be  conferred  only  w4ien  accompanied  by  adequate  safeguards 
of  the  rights  of  the  individual. ^'^^ 

We  recommend  that  section  18,  paragraphs  1,  2  and  3  be 
amended  to  provide  proper  standards  for  the  power  to  make 
regulations  respecting  the  licensing  powers  and  rights  of 
appeal. 

The  council  of  any  municipality  may  pass  by-laws  for  the 
licensing,  regulating  and  governing  of  persons  who  sell  fluid 
milk  products  to  the  consinner  or  any  persons  who  sell  fluid 
milk  products  to  any  person  for  resale,  and  for  revoking  such 
licences. ^°- 


°See  Report  Number  1,  pp.  90-93,  257-64  and  1104-06  supra. 

'p.  l\\?>  supra. 

^^Ont.  1965,  c.  72,  s.  19(2). 


Chapter  117  1881 

These  powers  are  lo  a  certain  extern  a  dujjlication  ol  the 
licensing  powers  conferred  luider  the  Municipal  Act  whicli 
were  discussed  in  Report  Ntunber  1  along  witli  general  licen- 
sing powers. ^"^  What  we  said  there  and  our  reconnuendations 
apply  with  equal  force  here.  There  are  no  standards  laid 
down.  In  addition,  the  powers  vested  in  the  municipal  coun- 
cil would  seem  to  o\erlap  tlie  powers  conferred  on  the  Com- 
mission inider  section  18.  paragraphs  1,  2  and  ?>  which  we 
have  just  discussed. 

The  Municipality  of  Metropolitan  Toronto  Licensing 
Commission  has  passed  a  by-law  (No.  88-69,  Schedtde  19) 
relating  to  the  distribution  of  milk  and  cream  for  hmnan 
consiunption.  This  by-law  would  appear  to  be  designed  to 
provide  certain  safeguards  with  respect  to  health  and  to 
supplement  the  licensing  powers  set  out  in  the  Milk  Act. 

Quotas 

The  Milk  Commission  may  make  regidations: 

"8.(1)11.  providing  for, 

i.  the  marketing  of  a  regulated  product  on  a  quota  basis, 

ii.  the  fixing  and  allotting  to  persons  of  quotas  for  the 
marketing  of  a  regidated  product  on  such  basis  as  the 
Commission  deems  proper, 

iii.  the  refusing  to  fix  and  allot  to  any  person  a  quota  for 
the  marketing  of  a  regulated  product  for  any  reason 
that  the  Commission  deems  proper, 

iv.  the  cancelling  or  reducing  of,  or  the  refusing  to 
increase,  a  quota  fixed  and  allotted  to  any  person  for  the 
marketing  of  a  regulated  product  for  any  reason  that 
the  Commission  deems  proper,  and 

V.  the  terms  and  conditions  upon  which  a  person  may 
market  a  regulated  product  in  excess  of  the  quota  fixed 
and  allotted  to  him;"^"^ 

This  power  has  not  been  exercised  but  has  been  delegated 
in  the  following  manner: 

"6.  The  Commission  delegates  to  the  marketing  board   its 
power  to  make  regulations  with  respect  to  milk, 

"'Chapter  75. 

'"^Ont.  19G5,  c.  72,  s.  8(1),  para.  11. 


1882         The  Milk  Commission  of  Ontario 

(1)  providing  for, 

(i)   the  marketing  of  milk  on  a  quota  basis, 
(ii)    the  fixing  and  allotting  to  persons  of  quotas  for 
the  marketing  of  milk  on  such  basis  as  the  mar- 
keting board  deems  proper, 
(iii)    the  refusing  to  fix  and  allot  to  any  person  a 
quota  for  the  marketing  of  milk  for  any  reason 
that  the  marketing  board  deems  proper, 
(iv)    the  cancelling  or  reducing  of,  or  the  refusing  to 
increase,  a  quota  fixed  and  allotted  to  any  per- 
son for  the  marketing  of  milk  for  any  reason  that 
the  marketing  board  deems  proper,  and 
(v)    the  terms  and  conditions  upon  which  a  person 
may  market  milk  in  excess  of  the  quota  fixed 
and  allotted  to  him."^°^ 

The  Ontario  Milk  Marketing  Board  has  exercised  the 
power  delegated  to  it  by  passing  the  following  regulation: 

"4.  (1)  All  grade  A  milk  bought  by  the  marketing  board 
from  a  producer  shall  be  sold  by  the  producer  and 
bought  by  the  marketing  board  on  a  quota  basis. 

(2)  The  marketing  board  may  fix  and  allot  to  persons 
quotas  for  the  marketing  of  milk  on  such  basis  as  the 
marketing  board  deems  proper. 

(3)  The  marketing  board  may  refuse  to  fix  and  allot  to 
any  person  a  quota  for  the  marketing  of  milk  for  any 
reason  that  it  deems  proper. 

(4)  The  marketing  board  may  cancel  or  reduce  or  refuse 
to  increase  the  quota  fixed  and  allotted  to  any  person 
under  subsection  2  for  any  reason  that  it  deems 
proper."^^^ 

Elsewhere  in  this  Report  we  criticize  the  arbitrary  power 
which  is  conferred  by  the  language  "on  such  basis  as  the 
marketing  board  deems  proper"  and  "for  any  reason  that  it 
deems  proper."^"^ 

The  Commission  in  the  delegation  of  its  power  to  fix 
quotas^*^^  has  not  set  out  gtiidelines  for  fixing  or  refusing  to  fix 
quotas.  It  has  sub-delegated  the  power  to  the  Ontario  Milk 
Marketing  Board.  The  Board  in  its  turn  has  not  formulated 
any  basis  for  fixing  or  allotting  quotas.  The  basis  and  reasons 


108 
107, 
108| 


O.  Reg.  294/65,  s.  6(1). 

O.  Reg.  52/68,  s.  4  as  amended  by  O.  Reg.  131/68,  s.  1. 

Chapter  112,  pp.  1776-78  supra. 

Ont.  1965,  c.  72,  s.  8(1),  para.  11. 


Chapter  117         1883 

are  left  entirely  to  the  exercise  of  mere  administrative  discre- 
tion and  not  founded  on  any  legislative  guidelines.  In  view 
of  the  fact  that  the  quota  system  can  have  such  a  far-reaching 
effect  on  the  ordinary  common  law  rights  of  the  individual 
there  should  be  some  defined  legal  basis  on  which  the  power 
to  fix  quotas  must  be  exercised. 

The  Ontario  Milk  Marketing  Board  has  stated  a  quota 
policy  which  it  has  expressed  in  writing  but  it  is  not  part  of 
the  law.^*^» 

The  document  contains  six  main  sections,  entitled  re- 
spectively: 

1.  Definitions 

2.  Entry  into  the  Group  1  Pool 

3.  Quota  Transfers 

4.  Maintenance  of  Quota 

5.  Quota  Adjustments 

6.  General  Terms  and  Conditions 
We  quote  from  paragraph  2(a): 

"2.  Entry  into  the  Group  1  Pool. 

(a)  An  eligible  producer  who  sold  Grade  A  milk  for 
dairy  requirements  purposes  up  to  and  including 
May  31st,  1967,  shall  automatically  be  included  in 
the  Group  1  Pool  and  be  allocated  a  quota  by  the 
Board  as  calculated  below  for  each  pool  area. 

Calculation 

Total  quota  to       Total  qualifying  Percentage  to  be 

be  allocated,     -^-  milk  of  producers  1=  applied  to  each 
expressed  in  expressed  in  producer's  qualifying 

pounds  per  day      pounds  per  day  milk 

Where  total  quota  to  be  allocated  equals  dairy  requirements 
in  the  base  period,  plus  10%,  less  a  reserve  for  quota  to  be 
allocated  to  qualified  industrial  producers  and  small  quota 
holders;  and  where  total  qualifying  milk  is  all  the  qualifying 
milk  as  defined  in  Section  1(d)." 

At  the  end  of  the  policy  statement  there  appears  this 
qualifying  statement. 

'This  policy  carries  the  intent  of  the  Ontario  Milk  Market- 
ing Board,  but  is  subject  to  word  change  on  legal  advice." 

*°*The  Ontario  Milk  Marketing  Board  Group  1  Pool  Quota  Policy,  November 
1,  1967. 


1884  The  Milk  Couimissioji  of  Ontario 

In  the  result,  it  appears  that  the  Board  has  considered 
the  matter  of  determining  the  quota  policy  and  has  expressed 
its  determination  in  writing.  But  it  has  stopped  short  of 
embodying  the  policy  in  a  regulation,  as  the  language  of  the 
statute  indicates  it  should.  If  the  policy  for  fixing  quotas  had 
been  stated  in  the  form  of  a  regulation  the  qualification  we 
have  just  quoted  could  not  have  been  inserted. 

An  explanatory  note  is  contained  in  the  document  w'hich 
to  some  extent  explains  and  summarizes  this  statement  and 
contains  information  not  in  the  policy  statement.  We  refer 
particularly  to  that  portion  entitled  "Quota  Appeal  Pro- 
cedure". It  reads: 

"1.    Forms  used  for  appealing  are  available  at  Head  Office  in 

Toronto  only. 

2.  If  you  ■wish  to  appeal  your  ne^v  Pool  quota,  write  or 
telephone  the  Board  and  request  the  form  "Application 
for  Quota  Appeal".  Please  send  it  to  Mr.  John  P. 
Schuster,  Quota  Supervisor,  The  Ontario  Milk  Market- 
ing Board,  31  AVellesley  Street  East,  Toronto  5,  Ontario. 
Telephone  416-924-6646. 

3.  The  deadline  for  submitting  appeals  is  December  15, 
1967. 

4.  The  Appeal  Committee  of  the  Board  will  revie^^v  your 
appeal.  "We  shall  acknowledge  receipt  of  your  appeal  by 
return  mail,  and  inform  you  of  the  results  as  soon  as 
possible." 

A  right  of  appeal  and  an  appeal  procedure  is  an  essential 
part  of  the  quota  fixing  policy.  It  should  be  part  of  the  law 
respecting  the  control  of  the  marketing  of  milk  in  Ontario 
and  not  something  set  out  in  a  policy  statement.  The  policy 
and  rights  of  appeal  should  both  form  part  of  a  regulation 
having  the  force  of  law. 

The  purpose  of  conferring  power  to  enact  subordinate 
legislation  is  to  save  the  Legislature  from  having  to  state  in 
complete  detail  in  new  statutes  all  the  rules  that  are  to  apply. 
It  enables  the  subordinate  law-making  body  "to  complete  the 
statutory  schemes  by  making  regulations  which  have  the  force 
of  law.""°  The  purpose  is  not  to  confer  wide  administrative 

"°p.  335.  supra. 


Chapter  117  1885 

discretion  on  subordinate  bodies  wliich  may  make  declara- 
tions of  policy  to  avoid  giving  the  individual  clear,  eniorce- 
able  legal  rights  defined  by  recognized  legislative  process. 

It  is  quite  evident  that  throughout,  the  draftsmen  of  this 
Act  and  the  regulations  made  under  it  were  power  conscious 
and  showed  an  indifference  to  the  riglits  of  the  individual. 
The  language  used  affords  an  excellent  examj^le  of  a  form  of 
legislation  which  we  consistently  condemned  in  Report  Num- 
ber 1.  The  objecti\'e  of  the  draftsmen  was  to  create  powers 
with  as  little  control  as  possible  over  their  exercise. 

APPEALS 

The  Act  makes  some  provision  for  rights  of  appeal  from 
decisions  of  a  marketing  board  and  the  Commission, 

"(1)  Where  any  person  deems  himself  aggrieved  by  any 
order,  direction  or  decision  of  a  marketing  board,  he 
may  appeal  to  the  marketing  board  by  serving  upon  the 
marketing  board  written  notice  of  the  appeal. 

(2)   "Where  any  person  deems  himself  aggiieved  by, 

(a)  any  decision  of  a  marketing  board  on  an  appeal 
under  subsection  1 ;  or 

(b)  any   order,   direction   or   regulation   made   by    the 
Commission, 

he  may  appeal  to  the  Commission  by  serving  upon  the 
Commission  written  notice  of  the  appeal. "^^^ 

These  provisions  are  similar  to  the  appeal  provisions  of  the 
Farm  Products  Marketing  Act.^^- 

As  w^e  pointed  out,  an  appeal  from  a  decision,  etc,  of  a 
marketing  board  to  the  marketing  board  is  not  an  appeal  in 
the  true  sense.  It  is  a  right  of  review'.  All  of  what  we  said  in 
discussing  the  provisions  of  the  Farm  Products  Marketing  Act 
are  equally  applicable  here."^ 

Appeals  from  decisions  made  under  the  Milk  Act,  1965 
which  involve  questions  of  law  should  lie  to  the  Divisional 
Court  of  the  High  Court,  and  appeals  involving  matters  of 
policy  should  lie  to  the  Minister  of  Agriculture  and  Food. 

The  Com.mission  may,  subject  to  the  approval  of  the 
Lieutenant  Governor  in  Council,  make  regulations  "providing 


"^Ont.  1965.  c.  72.  s.  26(1)(2). 

"==R  S.O.  I960,  c.  137,  s.  lOa,  as  enacted  by  Ont.  1965,  c.  39,  s.  4. 

"•■"Cliapter  112,  pp.  1782-86  supra. 


1886         The  Milk  Commission  of  Ontario 

for  the  settlement  of  disputes  in  connection  with  the  selecting, 
grading,  rejecting,  weighing,  sampling  and  testing  of  milk  or 
cream  and  the  payment  for  the  milk  or  cream. "^^^  Regulations 
may  be  made  "establishing  classes  of  field-men,  and  prescrib- 
ing the  powers  and  duties  of  field-men  or  any  class  thereof. "^^° 

"(3)   Where  the  field-man  finds  that, 

(a)  the  milk  delivered  from  a  producer  for  purposes  of 
human  consumption  or  processing  does  not  comply 
with  this  Resfulation;  or 

(b)  premises  on  which  milk  is  produced  do  not  comply 
with  this  Regulation, 

the  field-man  shall  notify  immediately  the  producer  and 
any  plant  to  which  the  milk  is  delivered  of  his  findings 
and  may  by  order  require  that  no  milk  from  the  pro- 
ducer be  accepted  at  a  plant  until  the  milk,  or  premises, 
comply  with  this  Regulation. 
(4)  A  producer  who  deems  himself  a,2:gTieved  by  an  order 
of  a  field-man  under  sub-section  3,  may  appeal  to  the 
Commission  and  the  Commission  may,  after  a  hearing, 
confirm,  amend  or  revoke  the  order."^^^ 

This  is  the  sort  of  power  that  should  be  conferred  on  a 
field-man  by  the  Act  and  not  by  regulation  made  under  gen- 
eral language  in  the  Act,  i.e.  ".  .  .  prescribing  the  powers  and 
duties  of  field-men.  ..."  It  is,  however,  sound  to  confer  a  right 
of  appeal  to  the  Commission  from  the  decision  of  a  field-man 
but  the  field-man  should  be  required  to  give  written  reasons 
for  his  decision  on  demand. 

Milk  graders  may  make  decisions  rejecting  milk  based  on 
findings  of  fact.^^'^  There  are  no  provisions  for  any  appeal 
from  or  review  of  these  decisions.  The  nature  of  the  product 
and  its  fast  deteriorating  qualities  make  any  procedure  for 
formal  appeal  inappropriate.  Notwithstanding  this,  where 
there  is  dissatisfaction  with  the  results  of  testing,  procedures 
should  be  provided  by  regulation  for  further  tests  at  the 
request  of  the  party  affected. ^^® 

"*Onr.  196^.  c.  72,  s.  18,  para.  28. 

""A&^r/..  s.  18.  Dara.  61. 

""R.R.O.  1960,  Res:.  432.  s.  97(3V4^  as  made  by  O.  Reg.  208/61,  s.   11   and 

amended  bv  O.  Res;.  289/65,  s.  2(2). 
"V&?U,  ss.  61,  62.  63,  66(4),  67(1),  and  74(1)  and,  R.R.O.  1960,  Reg.  434,  ss. 

51,  52,  59  and  67. 
"*See  p.  235  supra. 


Chapter  117         1887 
INVESTIGATIONS 

The  powers  of  investigation  conferred  on  the  Milk  Com- 
mission^^" are  virtually  the  same  as  those  conferred  on  the 
Farm  Products  Marketing  Board. ^-"  We  have  discussed  these 
powers  at  some  length  in  Chapter  1 12.^-^ 

Upon  any  inquiry,  arbitration  or  investigation  under  the 
Act  the  Commission  has  "all  the  powers  that  may  be  conferred 
upon  a  commissioner  under  the  Public  Inquiries  Act."^^^ 

In  Report  Number  1  we  recommended  that  the  Public 
Inquiries  Act  be  re-drafted  so  as  to  incorporate  certain  pro- 
cedural safeguards  respecting  investigations  involving  the  use 
of  the  powers  conferred  by  that  Act^^^  and  we  also  recom- 
mended that  statutes  referring  to  the  Public  Inquiries  Act  use 
the  formula— "The  provisions  of  the  Public  Inquiries  Act 
shall  apply  to  investigations  under  this  Act."^^^  The  Act 
should  be  amended  to  conform  to  this  recommendation. 

Production  of  Books  and  Records 

The  right  to  production  and  inspection  of  books  and 
documents  is  dealt  with  in  two  sections— one  respecting 
"officers  or  field-men"  of  the  Commission  and  persons 
appointed  by  the  Commission, ^-^  and  the  other  respecting 
officers  of  a  marketing  board  and  persons  appointed  by  a 
marketing  board.^^^  We  quote  the  section  applying  to  the 
former. 

"9.  (1)  Every  person,  when  requested  so  to  do  by  an  officer  or 
field-man  of  the  Commission  or  a  person  appointed  by 
the  Commission  to  inspect  the  books,  records,  docu- 
ments, equipment  and  premises  of  persons  engaged  in 
the  producing,  processing  or  marketing  of  milk  or  milk 
products,  shall,  in  respect  of  milk  and  milk  products, 
produce  such  books,  records  and  documents  and  permit 
inspection  thereof  and  supply  extracts  therefrom  and 
permit  inspection  of  such  equipment  and  premises. 


120 
121 


"»Ont.  1965,  c.  72,  s.  4(2). 
■  R.S.O.  I960,  c.  137,  s.  4(1)(2). 

p.  1787  supra. 
^'-"Ont.  1965,  c.  72,  s.  4(3). 
^^^p.  465  supra. 
^'*Ibid. 

"^Ont.  1965,  c.  72,  s.  9. 
^'"Ibid.,  s.  10. 


1888         The  Milk  Commission  of  Ontario 

(2)  No  person  shall  hinder  or  obstruct  an  officer  or  field- 
man  of  the  Commission  or  a  person  appointed  by  the 
Commission  to  inspect  the  books,  records,  documents, 
equipment  and  premises  of  persons  engaged  in  the  pro- 
ducing, processing  or  marketing  of  milk  or  milk  prod- 
ucts in  the  performance  of  his  duties  or  refuse  to  permit 
him  to  carry  out  his  duties  or  refuse  to  furnish  him  with 
information  or  furnish  him  with  false  information. 

(3)  The  production  by  any  person  of  a  certificate  of  appoint- 
ment by  the  Commission  to  inspect  the  books,  records, 
documents,  equipment  and  premises  of  persons  engaged 
in  the  producing,  processing  or  marketing  of  milk  or 
milk  products,  purporting  to  be  signed  by  the  chairman 
and  secretary  of  the  Commission,  shall  be  accepted  by 
any  person  engaged  in  the  producing,  processing  or 
marketing  of  milk  or  milk  products  as  proof  of  such 
appointment."^-' 

These  sections  are  prototypes  of  section  7  of  the  Farm 
Products  Marketing  Act  which  we  discussed  in  Chapter  112.^^^ 
The  powders  are  much  broader  than  necessary  and  proper 
safeguards  for  the  rights  of  the  individual  are  not  provided  in 
the  following  respects: 

1.  The  inspection  of  a  private  dwelling  without  the  obtain- 
ing of  a  warrant  is  authorized. 

2.  There  is  no  restraint  on  the  use  of  the  information  that 
may  be  obtained  on  the  inspection. 

3.  The  subject  being  inspected  must  supply  extracts  from 
his  books  instead  of  allowing  copies  to  be  made  thereof. 

All  persons  engaged  in  marketing  "milk  products"  are 
subject  to  the  powder  of  inspection.  The  definition  of  "milk 
products"  is  so  wide  as  to  confer  powers  of  inspection  of  books, 
records,  documents,  equipment  and  premises  of  all  merchants 
w^ho  sell  any  product  derived  in  whole  or  in  part  from  milk. 
This  would  include  a  wide  range  of  stores,  e.g.,  grocery  stores, 
drug  stores  and  confectioneries. 

Subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council  the  Commission  may  pass  regulations  "requiring 
producers,  transporters,  processors  and  distributors  to  furnish 
to  the  Commission  such  information  or  returns  as  the  Com- 


^^'Ibid.,  s.  9. 
^"«p.  \1%9  supra. 


Chapter  117  1880 

mission  determines."*-"  This  legislative  power  conferred  on  a 
subordinate  body  is  obviously  too  wide.  1  here  is  no  limitation 
on  the  sort  of  information  that  may  be  recjuired  by  the  Com- 
mission. It  should  be  confined  to  relevant  aspects  of  the  milk 
industry. 

Every  field-man  may  "stop  any  conveyance  that  he 
believes  may  contain  any  milk  or  milk  product  and  inspect  the 
conveyance  and  any  milk  or  milk  product  found  therein. "*^^ 
The  right  to  stop  and  inspect  should  be  conditioned  on  the 
field-man's  having  reasonable  grounds  for  believing  that  the 
conveyance  contains  any  milk  or  milk  product  in  respect  of 
which  a  contravention  of  tlie  Act  or  the  regulations  has  taken 
place. *^^ 

PENALTIES 

E\'ery  person  who  contravenes  any  of  the  provisions  of 
the  Act  or  the  regulations,  or  of  any  plan,  or  of  any  order  or 
direction  of  the  Commission  or  any  marketing  board,  or  of 
any  agreement  or  award  or  re-negotiated  agreement  or  award 
filed  with  the  Commission,  or  of  any  by-law  under  the  Act,  is 
guilty  of  an  offence  and  on  summary  conviction  is  liable,  for 
a  first  offence,  to  a  fine  of  not  less  than  ??50  and,  for  a  sub- 
sequent offence,  to  a  fine  of  not  less  than  $50  and  not  more 
than  $500.^32 

This  provision  is  subject  to  the  same  criticism  as  section 
1 3  of  the  Farm  Products  Marketing  Act  which  we  dealt  with 
in  Chapter  112.^^^  We  said  there  "this  is  the  sort  of  penal 
legislation  that  brings  the  law  into  disrespect  and  promotes 
contempt  for  the  law.  It  is  omnibus  penal  legislation  and  lazy 
draftsmanship.  The  individual  is  made  liable  to  be  prosecuted 
and  punished  in  the  criminal  courts  for  contravention  of  laws 
that  he  has  no  means  of  knowing  existed. "*^^  The  contraven- 
tion is  sufficient.  The  intention  to  contravene  is  not  a  require- 
ment. It  should  be. 


""Ont.  1965,  c.  72,  s.  18,  para.  59. 

"V6?rf.,  s.  5(b). 

"'p.  425  supra. 

'"^^Ont.  1965,  c.  72,  s.  20. 

''"p.  \790fi  supra. 

'"^pp.  1790-91  supra. 


1890         The  Milk  Commission  of  Ontario 

In  addition  to  the  penalties  provided  for  offences  under 
the  Act,  every  person  who  fails  to  pay  at  least  the  minimum 
price  established  for  any  regulated  product  is  liable  to  a 
penalty  of  an  amount  equal  to  the  difference  between  the 
amount  paid  and  the  minimum  price. ^^^ 

We  criticized  a  similar  section  in  the  Farm  Products 
Marketing  Act^^®  on  the  ground  that  the  legislation  is 
designed  to  use  the  criminal  law  to  collect  civil  debts  and  we 
pointed  out  that  a  simple  summary  application  to  a  judge  of 
the  county  or  district  court  should  be  sufficient  to  provide 
adequate  relief.  We  also  emphasized  the  procedural  difficulty 
involved  in  an  application  under  the  section. ^^'^ 

Restraining  Orders 

The  Act  provides: 

"Where  it  is  made  to  appear  from  the  material  filed  or  evi- 
dence adduced  that  any  offence  against  this  Act  or  the 
regulations  or  any  plan,  order,  direction,  agreement,  a^vard 
or  re-negotiated  agreement  or  award  made  under  this  Act  has 
been  or  is  being  committed,  the  Supreme  Court  or  a  judge 
thereof  may,  upon  the  application  of  the  Commission,  enjoin 
any  transporter,  processor,  distributor  or  operator  of  a  plant 
from  carrying  on  business  as  a  transporter,  processor,  distrib- 
utor or  operator  of  a  plant,  absolutely  or  for  such  period  as 
seems  just,  and  any  injunction  cancels  the  licence  of  the 
transporter,  processor,  distributor  or  operator  of  a  plant 
named  in  the  order  for  the  same  period. "^^^ 

The  object  of  this  section  is  commendable  but  the  procedure 
is  confusing. 

Provision  is  made  for  a  summary  application  to  "the 
Supreme  Court  or  a  judge  thereof."  The  alternative  language 
is  difficult  to  understand.  The  Supreme  Court  exercises  its 
jurisdiction  through  the  judges  of  the  Supreme  Court  and  an 
application  to  the  Supreme  Court  would  be  disposed  of  by  a 
judge  of  the  Supreme  Court.  If  it  is  the  intention  to  confer 
jurisdiction  on  a  judge  of  the  Supreme  Court  as  an  alternative 
to  the  jurisdiction  of  the  Supreme  Court  it  could  be  argued 
that  he  would  exercise  the  jurisdiction  as  persona  designata. 

"'Ont.  1965,  c.  72,  s.  22. 

"«See  Chapter  112,  pp.  1792-93  supra. 

^'''Ibid.,  p.  1793  supra. 

"«Ont.  1965,  c.  72,  s.  21. 


Chapter  117         1891 

In  such  case  no  appeal  would  lie  ironi  his  decision  except  by 
leave  of  the  Court  of  Appeal. ^^"  If  such  should  be  the  case  it 
is  wrong  that  the  Commission  should  have  the  right  to  elect 
whether  to  make  an  application  to  the  Supreme  Court  where 
a  right  of  appeal  would  lie  from  the  decision  of  tlie  judge 
hearing  the  application  or  to  make  application  to  a  judge  of 
the  Supreme  Court  as  persona  designata  where  no  right  of 
appeal  would  lie  from  his  decision  except  with  leave.  In  view 
of  the  amount  of  legal  argument  that  can  be  developed  in 
many  cases  in  deciding  whether  a  judge  on  whom  jurisdiction 
is  conferred  acts  as  persona  designata  or  a  judge  of  the  court, 
the  confusion  should  be  cleared  up  by  striking  out  the  words 
"or  a  judge  thereof. "^^^ 

The  provision  in  the  Act  which  we  have  just  been  dis- 
cussing is  to  be  preferred  to  the  use  of  the  criminal  law  to 
attain  the  same  ends.^^^  This  provision  imports  the  flexible, 
equitable  doctrines  associated  with  the  granting  of  injunc- 
tions.^^- It  would  enable  a  judge  to  exercise  his  powers  subject 
to  a  discretion  and  the  imposition  of  appropriate  terms,  having 
regard  to  the  justice  of  the  case.  However,  the  court  should  be 
given  express  power  to  enjoin  the  respondent  to  an  applica- 
tion from  continuing  the  commission  of  the  offence  giving 
rise  to  the  application.  In  most  cases  it  would  not  be  necessary 
for  a  person  to  be  enjoined  from  carrying  on  business  abso- 
lutely or  for  a  limited  period  of  time.  The  purpose  of  the 
section  is  not  to  impose  an  economic  punishment  but  to  pre- 
vent the  continuation  of  the  offence. 

Proof  of  Inter-Provincial  or  Export  Trade 

"In  any  prosecution  for  an  offence  under  this  Act,  the  act  or 
omission  of  an  act,  in  respect  of  which  the  prosecution  was 
instituted,  shall  be  deemed  to  relate  to  the  marketing  within 
Ontario  of  milk,  cream  or  cheese,  or  any  combination  thereof, 
unless  the  contrary  is  proven. "^^^ 

"■'The  Judges'  Orders  Enforcement  Act,  R.S.O.  1960,  c.  196,  s.  3. 

^*°For  discussion  see  p.  657  supra. 

"'See  Chapter  112,  p.  1790ff  supra. 

"'See    Weatherall  and  Betzner  v.  Lennox,   [1949]    O.W.N.   685,   687  on   the 

statutory  injunction  jurisdiction  conferred  by  the  Municipal  Act,   R.S.O. 

1937,  c.   194,  s.  525.    See  now  Municipal  Act,  R.S.O.   1960,  c.  249,  s.  486. 
"''Ont.  1965,  c.  72,  s.  24. 


1892         The  Milk  Commission  of  Ontario 

This  provision  is  a  great  improvement  on  the  correspond- 
ing legislation  under  the  Farm  Products  Marketing  Act/^^  It 
deals  with  the  problem  of  proof  where  it  may  be  alleged  by 
the  accused  that  the  transactions  in  milk  are  in  the  course  of 
export  or  inter-provincial  trade  and,  therefore,  beyond  the 
competence  of  the  provincial  Legislature. 

Under  the  Farm  Products  Marketing  Act  the  onus  is 
placed  on  the  accused  to  prove  that  the  product  in  respect  of 
which  the  action  or  prosecution  is  brought  is  not  a  regulated 
product  within  the  meaning  of  the  Act.  As  we  pointed  out,  the 
accused  is  not  in  possession  of  all  the  requisite  information. 

Under  the  Milk  Act,  1965  the  accused  should  be  able  to 
discharge  the  onus  as  to  whether  the  transaction  involved 
shipping  milk  beyond  the  limits  of  the  province. ^^^ 

PROTECTION  OF  MEMBERS  OF  THE  MILK 
COMMISSION  AND  OF    MARKETING  BOARDS 

"No  member  of  the  Commission  and  no  officer,  field-man  or 
other  employee  of  the  Commission  is  personally  liable  for 
anything  done  by  him  in  good  faith  under  or  purporting  to 
be  under  the  authority  of  this  Act  or  the  regulations. "^^^ 
"No  member  of  a  marketing  board  or  any  of  its  officers  or 
employees  is  personally  liable  for  anything  done  by  it  or  by 
him  in  good  faith  under  or  purporting  to  be  under  the 
authority  of  this  Act  or  the  regulations."^^" 

We  criticized  similar  provisions  of  the  Farm  Products 
Marketing  Act.  The  exemption  from  liability  even  extends 
to  acts  done  without  statutory  authority  as  long  as  they  are 
done  in  good  faith  and  in  the  purported  exercise  of  a  statutory 
authority.  It  is  difficult  to  see  why  an  injured  party  should  not 
have  his  ordinary  common  law  remedies  for  such  wrongful 
acts.  If  a  member  of  the  Commission  or  a  local  board  or  an 
officer,  clerk,  or  employee  of  either  by  his  wrongful  act  causes 
injury  to  anyone  he  should  be  liable  just  as  an  officer, 
employee  or  servant  of  any  other  corporation. 

Provision,  however,  should  be  made  that  members  of  the 
Commission  and  the  boards,  their  officers  and  employees  who 

'"R.S.O.  1960,  c.  137,  s.  17.  This  was  discussed  in  Chapter  112,  p.  1794  supra. 
^*^See  discussion  Chapter  112,  p.  1794  supra. 
""Ont.  1965,  c.  72,  s.  3(8). 
''Ubid.,  s.  7(6). 


Chapter  117  1893 

have  acted  in  good  faith  should  be  entitled  to  be  lully 
indemnified  by  the  Commission  and  the  boards  with  respect  to 
any  judgments  obtained  against  them  relating  to  acts  intended 
to  be  done  pursuant  to  the  Act  and  the  regulations. 

We  discuss  further  provisions  such  as  these  in  Chapter 
131  and  their  effect  on  the  citizens'  right  against  the  Crown. 

"The  acts  of  a  member  or  an  officer  of  a  marketing  board  are 
valid  not^vithstanding  any  defects  that  may  afterwards  be 
discovered  in  his  qualifications  and  his  appointment,  election 
or  choosing."^^^ 

We  criticized  a  similar  provision  in  the  Farm  Products 
Marketing  Act.^^^  What  we  said  there  applies  with  equal  force 
to  this  provision.  The  provision  should  relieve  against  the 
consequences  of  minor  defects  in  the  qualifications,  appoint- 
ments or  election  of  a  member  or  officer  of  a  board  only. 

RECOMMENDATIONS 

1.  All  regulations  made  by  the  Commission  or  by  a  board 
under  the  Act  should  be  approved  by  the  Lieutenant 
Go\'ernor  in  Council  before  they  come  into  effect. 

2.  The  Lieutenant  Governor  in  Council  should  approve  the 
actual  plans  made  under  the  Act. 

3.  The  scope  of  the  Act  should  be  determined  by  the  Legis- 
lature and  the  sections  conferring  power  on  subordinate 
bodies  to  extend  the  scope  of  the  Act  by  the  definition  of 
"milk  products"  should  be  repealed. 

4.  All  words  of  definition  including  "marketing,"  "pro- 
ducer," "processor"  and  "transporter"  should  be  re- 
stricted to  the  relative  necessities  and  purposes  of  the 
Act. 

5.  Section  8(1),  paragraph  13  giving  the  Commission  power 
to  make  regulations  "providing  for  the  control  and  regu- 
lation of  the  marketing  of  any  regulated  product,  includ- 
ing the  times  and  places  at  which  the  regulated  product 
may  be   marketed"  should  be  repealed  or  the  powers 


^Ibid.,  s.  7(5). 

•Chapter  112,  p.  1760  supra. 


1894         The  Milk  Commission  of  Ontario 

restricted  by  proper  guidelines  confining  the  power  to  the 
express  purposes  of  the  Act. 

6.  Section  8(1),  paragraph  32  empowering  the  Commission 
to  make  regulations  authorizing  any  marketing  board  to 
prohibit  the  marketing  of  any  class,  variety,  grade  or  size 
of  any  regulated  product  should  be  amended  so  as  to 
define  strictly  the  powers  of  prohibition  that  may  be 
exercised.  These  should  be  set  out  in  the  Act  and  limited 
to  the  necessary  purposes  of  the  Act. 

7.  Section  4(2)(j)  conferring  power  on  the  Commission  to 
"authorize  any  officer  or  field-man  to  exercise  such  of  its 
powers  as  it  deems  necessary  ..."  should  be  amended  to 
limit  the  powers  of  delegation  to  minor  matters. 

8.  The  powers  conferred  on  the  Commission  under  section 
18,  paragraph  63  to  exempt  from  the  Act  or  regulations, 
or  any  part  thereof,  any  plant  or  class  of  plants,  any 
person  or  class  of  persons,  or  any  milk  product  or  any 
class,  variety  or  grade  of  milk  product  should  be  limited 
by  guidelines  laid  down  in  the  Act  for  their  exercise. 

9.  Section  8(1),  paragraph  9  giving  power  to  the  Commis- 
sion to  make  regulations  "for  the  exemption  from  any  or 
all  of  the  regulations  under  any  plan  of  any  class,  variety, 
grade  or  size  of  regulated  product  or  of  any  person  or 
class  of  persons  engaged  in  the  producing  or  marketing 
of  the  regulated  product  or  any  class,  variety,  grade  or 
size  of  regulated  product"  should  be  repealed  or  restricted 
in  its  scope  to  that  "which  is  essential  for  the  purposes  of 
the  administration  of  the  Act  and  such  regulations  should 
be  approved  by  the  Lieutenant  Governor  in  Council. 

10.  Section  25(1)  providing  that  "any  word  or  expression 
used  in  the  Act  or  the  regulations  may  be  defined  in  the 
regulations  for  the  purpose  of  the  regulations"  should  be 
amended  to  limit  the  power  of  definition  of  w'ords  used 
in  the  Act  for  the  purpose  of  the  regulations  so  that  the 
definition  is  within  the  ambit  of  the  meaning  of  the 
^vords  as  used  in  the  Act.  A  word  used  in  the  Act  should 
not  be  given  a  ineaning  by  regulation  at  variance  with 
its  meaning  as  used  in  the  Act. 


Chapter  117         1895 

11.  Where  the  Lieutenant  Governor  in  Council  makes  regu- 
lations under  section  7(1) (f)  and  (g)  providing  for  the 
carrying  out  by  the  Commission  or  a  trustee  of  any  or  all 
of  the  powers  of  a  marketing  board,  or  the  vesting  of  the 
assets  of  a  marketing  board  in  the  Commission  or  a 
trustee,  or  disposing  of  any  or  all  of  the  assets  of  a 
marketing  board,  or  dissolving  a  marketing  board  on 
terms  and  conditions  prescribed,  those  affected  by  such  a 
regulation  should  be  given  a  statutory  right  to  be  heard 
in  accordance  with  the  provisions  of  the  Statutory  Powers 
Procedure  Act  recommended  in  Report  Number  1  and 
the  exercise  of  the  powers  should  be  subject  to  statutory 
conditions  precedent. 

12.  The  Commission  should  not  be  responsible  to  the  Min- 
ister in  the  exercise  of  its  licensing  powers. 

13.  The  words  "or  for  any  other  reason  that  the  Commission 
deems  proper"  in  section  8(1),  paragraph  3  should  be 
repealed. 

14.  The  grounds  entitling  a  person  to  a  licence  should  be  set 
out  in  the  Act  and  not  in  the  regulations  as  in  R.R.O. 
1960,  Reg.  432,  section  46c(c).  Section  18,  paragraph  3 
of  the  Act  should  set  out  the  basic  terms  and  conditions 
for  holding  a  licence.  R.R.O.  1960,  Reg.  432,  section 
46c(c)  should  be  amended  to  delete  the  words  "in  the 
opinion  of  the  Commission." 

15.  Proper  standards  should  be  laid  down  in  the  Act  govern- 
ing the  licensing  powers  in  accordance  with  our  recom- 
mendations in  Report  Number  1  (p.  1 132). 

16.  There  should  be  a  defined  legal  basis  on  which  the  power 
to  fix  quotas  is  to  be  exercised. 

17.  Rights  of  appeal  should  be  provided  in  cases  where  a 
licence  is  refused  or  revoked. 

18.  Rights  of  appeal  and  appeal  procedure  in  the  quota  fixing 
policy  should  be  set  out  in  the  regulations  and  not  in  a 
policy  statement  of  the  Ontario  Milk  Marketing  Board. 

19.  Appeals  from  decisions  under  the  Act  involving  questions 
of  law  should  lie  to  the  Divisional  Court  of  the  High 


1896  The  Milk  Comniisslun  of  Ontario 

Court  and  appeals  involving  matters  of  policy  should  lie 
to  the  Minister  of  Agriculture  and  Food. 

20.  The  powers  of  a  field-man  as  set  out  in  R.R.O.  1960,  Reg. 
432,  section  97(3)  and  (4)  should  be  contained  in  the  Act. 
The  field-man  should  be  required  to  give  written  reasons 
for  his  decision  on  demand. 

21.  Where  milk  graders  reject  milk  based  on  findings  of  fact, 
there  should  be  a  procedure  for  further  tests  at  the 
request  of  a  party  affected. 

22.  When  the  Public  Inquiries  Act  is  redrafted  as  recom- 
mended in  Report  Number  1,  section  4(3)  should  be 
amended  to  use  the  formula  "the  provisions  of  the  Public 
Inquiries  Act  shall  apply  to  investigations  under  this 
Act." 

23.  The  powers  of  investigation  under  sections  9  and  10  of 
the  Act  are  much  broader  than  necessary.  These  sections 
should  be  amended  to  provide: 

(1)  that  where  it  is  sought  to  enter  a  private  dwelling,  a 
warrant  must  be  obtained; 

(2)  that  information  obtained  on  the  inspection  shall  not 
be  disclosed  except  for  the  purposes  of  the  Act  and 
the  administration  of  justice,  and 

(3)  that  where  books  cannot  be  properly  inspected  on  the 
premises,  there  be  pro\ision  for  the  person  investigat- 
ing to  inake  copies  and  return  the  books  within  a 
reasonable  time.  (See  p.  422). 

24.  Section  18,  paragraph  59  should  be  restricted  to  aspects 
of  the  milk  industry. 

25.  The  power  in  section  5(b)  to  stop  and  inspect  should  be 
conditioned  on  reasonable  groinids  to  believe  that  the 
conveyance  stopped  contains  milk  or  a  milk  product  in 
respect  of  w^hich  a  contravention  of  the  Act  or  regulations 
has  taken  place. 

26.  Section  20  should  be  repealed  and  penalties  enacted  only 
if  appropriate  to  particular  contraventions.  No  one 
should  be  liable  to  punishment  unless  it  can  be  shown 
that  he  knowingly  contravened  the  Act  or  the  regulations. 


Chapter  117  1897 

27.  Section  22  should  be  repealed  and  in  its  place  provision 
should  be  made  for  a  summary  application  to  a  judge  of 
the  county  or  district  court  for  an  order  requiring  a  party 
who  has  not  paid  the  mininunn  price  for  a  milk  product 
to  make  good  the  deficiency. 

28.  The  words  "or  a  judge  thereof"  should  be  deleted  from 
section  21.  Under  section  21  the  court  should  be  given 
express  power  to  enjoin  the  respondent  from  continuing 
the  commission  of  the  offence  without  necessarily  enjoin- 
ing the  carrying  on  of  the  business  absolutely. 

29.  Section  7(2)  should  be  amended  so  as  to  relieve  against 
minor  defects  only  in  the  appointment,  election,  or 
choosing  of  a  member  or  officer  of  a  marketing  board. 


CHAPTER  118 


The  Mining  Commissioner 


INTRODUCTION 

1  HE  Mining  Commissioner  for  Ontario  exercises  wide 
judicial  and  administrative  powers  relative  to  "mining"  as 
the  term  is  used  in  the  Mining  Act.^ 

It  is  not  our  purpose  in  this  Chapter  to  deal  exhaustively 
with  the  powers  exercised  by  the  Commissioner.  We  shall  be 
concerned  particularly  with  the  provisions  of  the  Act  relative 
to  the  procedure  provided  for  the  exercise  of  the  powers. 

THE  APPOINTMENT  OF  THE  COMMISSIONER 

The  Commissioner  is  appointed  by  the  Lieutenant  Gov- 
ernor in  Council,  but  not  for  any  fixed  term.  In  view  of  the 
very  important  judicial  powers  he  exercises  provision  should 
be  made  for  security  of  tenure. 

No  provision  is  made  for  a  deputy  commissioner  to 
exercise  the  powers  of  the  Commissioner  during  his  absence 
or  his  inability  to  act— except  that  in  such  case  the  Minister 
may,  in  writing,  appoint  a  person  to  act  in  his  stead  with 
respect  to  making  orders  under  section  92  of  the  Act  which 
deals  mainly  with  relief  against  forfeiture.^ 

^R.S.O.  1960,  c.  241,  as  amended  by  Ont.  1961-62,  c.  81;  Ont.  1962-63,  c.  84; 
Ont.  1964,  c.  62;  Ont.  1965,  c.  73;  Ont.  1967,  c.  54;  Ont.  1968.  c.  71  and 
Ont.  1968-69,  c.  68. 
*lbid..  s.  125(3). 

1898 


Chapter  118         1899 

Provision  should  be  made  giving  the  Lieutenant  Gov- 
ernor in  Council  power  to  appoint  a  person  to  perform  all  of 
the  duties  of  the  Commissioner  where  for  any  reason  he  is 
unable  to  perform  those  duties.  Mr.  J.  F.  McFarland,  the 
present  Commissioner,  agrees  with  this  view. 

RULES 

Unlike  the  legislation  governing  many  of  the  tribunals 
we  have  dealt  with  in  this  Report,  the  Act  contains  many  pro- 
visions setting  out  in  some  detail  the  procedure  to  be  followed 
relative  to  the  exercise  of  the  jurisdiction  conferred  on  the 
Commissioner. 

The  Lieutenant  Governor  in  Council  may  make  rules 
prescribing  the  practice  and  procedure  before  the  Commis- 
sioner respecting  sittings  of  the  Commissioner  and  places  at 
which  sittings  will  be  held,  and  any  other  matter  necessary  or 
advisable  to  cany  out  effectively  the  intent  and  purpose  of  the 
part  (Part  VIII)  of  the  Act  concerning  the  duties  of  the  Com- 
missioner.^ 

The  rules  in  force  in  the  Mining  Court  of  Ontario  on  the 
first  of  June  1956  are  stated  to  continue  in  force  and  to  apply 
mutatis  mutandis  to  proceedings  before  the  Commissioner 
until  revoked.^ 

No  rules  have  been  made  under  this  provision  and  no 
rules  were  in  force  in  the  Mining  Court  on  the  first  of  June, 
1956. 

Mr.  McFarland  stated  to  us  that  he  had  considered  hav- 
ing rules  made  by  the  Lieutenant  Governor  in  Council  but  in 
view  of  the  fact  that  so  many  matters  come  before  him  that  are 
in  the  nature  of  applications  made  by  individuals  unrepre- 
sented by  lawyers,  he  thought  that  it  would  be  unwise  to  have 
definite  rules.  He  said:  "I  felt  that  if  I  tied  up  some  of  these 
people  who  appear  without  benefit  of  counsel  through  rules 
and  procedures  then  actually  I  may  be  depriving  them  of  some 
of  their  rights  and  equities  through  lack  of  experience  in  the 
fact  that  they  have  not  benefit  of  counsel,  and  for  that  reason 
I  didn't  go  ahead  with  these  practices  and  procedures." 

We  think  Mr.  McFarland  is  right  in  principle,  that  is, 

"Ibid.,  s.  133. 
'Ibid.,  s.  133(2). 


1900         The  Mining  Commissioner 

that  technical  rules  ought  not  to  deprive  those  having  cases 
before  him  of  their  rights  and  equities.  But  we  do  not  agree 
that  the  solution  is  to  have  no  rules.  The  better  course  would 
be  to  have  rules  which  would  guide  those  who  have  matters 
before  the  Commissioner  and  to  give  to  the  Commissioner 
power  to  relieve  against  technical  failure  to  follow  the  rules. 

In  fact,  Mr.  McFarland  stated  that  "actually  as  far  as  the 
practices  and  procedures  are  concerned  we  follow  pretty  well 
the  practices  and  procedures  as  laid  down  by  the  Supreme 
Court  except  that  perhaps  we  are  a  little  more  lenient  as  far  as 
the  evidence  is  concerned." 

Obviously,  many  of  the  practices  and  procedures  laid 
down  by  the  Rules  of  Practice  and  Procedure  of  the  Supreme 
Court  are  not  suitable  for  application  to  proceedings  before 
the  Commissioner. 

It  would  be  most  useful  to  have,  in  pamphlet  form,  the 
rules  that  are  to  be  followed,  including  the  provisions  of  the 
statute  that  are  in  the  nature  of  rules  some  of  which  we  shall 
deal  with  presently. 

FORFEITURE 

Under  the  Act  the  rights  of  the  holder  of  a  mining  claim 
before  the  patent  has  issued  are  automatically  forfeited  on 
certain  conditions,  e.g.,  where  the  licence  has  expired  or  the 
prescribed  work  has  not  been  duly  performed.^  Where  for- 
feiture of  rights  occurs  an  application  may  be  made  for  relief 
against  the  forfeiture.*' 

No  provision  is  made  to  give  one  who  has  an  intervening 
interest  a  right  to  be  heard  before  an  order  is  made  relieving 
against  forfeiture.  We  were  told  that  in  practice  where  a  third 
party  has  acquired  an  interest  he  may  be  allowed  to  join  as  a 
party  to  the  application.  Provision  should  be  made  for  this  by 
rules,  but  this  is  not  enough.  It  would  give  a  party  claiming 
under  the  licensee  a  right  to  be  heard  but  a  claimant  adverse 
in  interest  would  have  no  right  to  be  heard  to  resist  an  order 
relieving  against  forfeiture.  In  fact,  "no  person,  other  than  the 
Minister  or  an  officer  of  the  Department  or  a  licensee  inter- 

^Ihid.,  s.  91  as  amended  by  Ont.  1965,  c.  73,  s.  3. 

^Ihid.,  s.  92(1)  as  amended  by  Ont.  1962-63,  c.  84,  s.  26  and  Ont.  1965,  c.  73, 
s.  4. 


Chapter  lis         1901 

cstcd  in  Lhc  property  affected,  is  entitled  to  raise  any  question 
of  forfeiture  except  by  leave  of  the  Commissioner,  and  pro- 
ceedings raising  questions  of  forfeiture  shall  not  be  deemed  to 
be  or  be  entered  as  disputes  under  section  64"  of  the  Act.' 

Mr.  McFarland  was  asked  if  he  knew  the  reason  for  this 
provision  and  his  reply  was  "I  don't  know,  sir.  That  has  been 
in  my  mind  ever  since  I  have  been  connected  with  the  Depart- 
ment of  Mines." 

We  recommend  that  in  forfeiture  proceedings  any  person 
claiming  under  the  licensee  and  any  person  holding  an 
adverse  interest  should  have  a  right  to  be  heard  on  the 
application. 

JURISDICTION  OF  THE  COMMISSIONER 

Except  in  the  case  of  the  enforcement  of  mechanics  liens 
no  "action  lies  and  no  other  proceeding  shall  be  taken  in  any 
court  as  to  any  matter  or  thing  concerning  any  right,  privilege 
or  interest  conferred  by  or  under  the  authority  of  this  Act, 
but,  except  as  in  this  Act  otherwise  provided,  every  claim, 
question  and  dispute  in  respect  of  such  matter  or  thing  shall 
be  determined  by  the  Commissioner,  and  in  the  exercise  of 
the  power  conferred  by  this  section  the  Commissioner  may 
make  such  order  or  give  such  directions  as  he  deems  necessary 
to  make  effectual  and  enforce  compliance  with  his  decision."^ 

The  exception  provided  is  that  a  party  to  a  proceeding 
under  the  Act  brought  before  the  Commissioner  and  "involv- 
ing any  right,  privilege  or  interest  or  in  connection  with  any 
patented  lands,  mining  lands,  mining  claims  or  mining  rights, 
may,  at  any  stage  of  the  proceeding,  apply  to  the  Supreme 
Court  for  an  order  transferring  the  proceeding  to  the 
Supreme  Court."* 

The  proceedings  coming  within  this  exception  comprise 
almost  the  entire  jurisdiction  of  the  Commissioner.  It  is. 
however,  of  real  interest  that  only  one  or  two  applications 
have  been  made  during  the  last  15  years  to  transfer  proceed- 
ings from  the  Commissioner  to  the  Supreme  Court.  This  is 
surely  a  testimonial  to  the  wisdom  of  the  Commissioner. 


Uhid.,  s.  91(2). 

'Ibid.,  s.  126.  Italics  added. 

»/&id.,  s.  130. 


1902         The  Mining  Commissioner 

JUDICIAL  REVIEW 

"Except  as  provided  in  this  Part  [Part  VIII],  proceedings 
under  this  Act  are  not  removable  into  any  court  by  certiorari 
or  otherwise,  and  no  injunction,  mandamus  or  prohibition 
shall  be  granted  or  issued  out  of  any  court  in  respect  of  any- 
thing required  or  permitted  to  be  done  by  any  officer 
appointed  under  this  Act."^° 

This  section  does  little  harm  and  no  good.  Proceed- 
ings before  the  Commissioner  may  be  removed  into  the 
Supreme  Court  on  the  application  of  any  party  to  the  pro- 
ceedings and  the  Commissioner  exercises  almost  a  complete 
appellate  jurisdiction  over  those  on  whom  decision-making 
powers  are  conferred  under  the  Act.  There  are  wide  rights  of 
appeal  from  the  Commissioner  to  the  Court  of  Appeal.  In 
view  of  all  this  there  is  little  purpose  for  the  privative  clause. 

Mr.  McFarland  agreed  that  anyone  who  contended  that 
the  Commissioner  did  not  have  jurisdiction  should  have  a 
right  to  move  in  the  Supreme  Court  to  restrain  him  from  act- 
ing and  likewise  where  the  Commissioner  felt  he  did  not  have 
jurisdiction  a  party  affected  should  have  the  right  to  compel 
him  to  act.  Broadly  speaking  the  privative  clause  does  not 
affect  these  rights. 

The  section  should  be  repealed. 

POWERS  OF  INVESTIGATION 

Unlike  many  Acts  that  we  have  dealt  wdth  in  this  Report 
which  confer  powers  on  much  lesser  tribunals,  the  Mining  Act 
does  not  purport  to  confer  on  the  Commissioner  all  the  powers 
of  a  court  in  civil  cases,  notwithstanding  that  he  exercises  a 
jurisdiction  very  akin  to  that  exercised  by  judges  of  the 
Supreme  Court  and  the  county  and  district  courts.  The 
powers  conferred  on  the  Commissioner  to  summon  and  en- 
force the  attendance  of  witnesses  and  to  compel  them  to  give 
evidence  and  produce  documents  are  those  that  may  be  con- 
ferred on  a  commissioner  under  the  Public  Inquiries  Act.^^ 

Mr.  McFarland  stated  that  in  all  his  experience  he  had 
only  to  consider  exercising  a  power  to  commit  for  contempt 

^"Ibid.,  s.  157. 
^Ubid.,  s.  128. 


Chapter  lis         1903 

once  and  he  was  doubtful  as  to  whether  he  had  the  power.  He 
agreed  with  us  that  it  would  be  useful  if  a  right  was  provided 
as  recommended  in  Report  Number  P-  to  apply  to  the 
Supreme  Court  for  an  order  of  committal  when  his  orders 
were  not  obeyed.  Such  a  provision  should  be  made. 

REASONS 

The  Commissioner  stated  that  he  always  gives  reasons, 
but  this  is  not  true  of  the  recorders.  The  Commissioner  has 
been  trying  to  impress  on  the  recorders  that  whenever  they 
issue  orders  they  should  give  written  reasons. 

The  Act  should  provide  that  where  the  Commissioner  or 
a  recorder  makes  an  order  affecting  rights  he  should  be 
required  to  give  written  reasons  if  requested  by  a  party  whose 
rights  are  affected, 

FILING  ORDERS  WITH  THE  SUPREME  COURT 

A  duplicate  of  any  order  made  by  the  Commissioner  or 
by  a  recorder  may  be  filed  in  the  office  of  the  Registrar  of  the 
Supreme  Court  or  in  the  office  of  any  local  registrar  or  in  the 
office  of  the  clerk  of  the  county  or  district  court  where  the 
land  lies  and  "upon  being  so  filed  it  becomes  an  order  of  the 
court  in  which  it  is  filed  and  is  enforceable  as  an  order  of  such 
court,  but  the  court  or  a  judge  thereof  may  stay  proceedings 
thereon  if  an  appeal  from  the  order  is  brought.  "^^ 

We  have  criticized  statutory  provisions  of  this  sort 
repeatedly.  Under  the  statute  the  order  of  the  Commissioner 
or  a  recorder  upon  being  filed  becomes  an  order  of  the 
Supreme  Court  or  county  or  district  court,  which  in  reality  it 
is  not. 

Mr.  McFarland  was  asked,  "Now  [to]  what  sort  of  cases 
would  an  "order  of  the  recorder"  be  referring?"  His  answer 
was,  "I  don't  know."  Orders  are  filed  with  the  Mining 
Recorder  and  if  there  is  no  recorder,  with  the  Minister  of 
Mines.  They  are  not  filed  with  the  Registrar  of  the  Supreme 
Court  or  a  local  registrar  or  the  clerk  of  the  county  or  district 
court. 


''p.  446  supra. 

'R.S.O.  1960,  c.  241,  s.  137. 


1904  The  Mining  Commissioner 

The  administration  of  the  Mining  Commissioner's  office 
should  not  be  confused  with  the  Supreme  Court  or  the  county 
courts.  Provision  should  be  made  for  a  central  place  for  filing 
all  orders  where  they  may  be  found  and  examined.  There 
should  be  a  provision  in  the  Act  that  when  orders  are  so  filed 
they  may  be  enforced  in  the  same  way  as  orders  of  the 
Supreme  Court  or  county  or  district  court  are  enforced.  If, 
for  instance,  an  order  is  to  pay  money,  it  should  be  enforce- 
able by  filing  a  copy  of  the  order  with  the  sheriff. 

APPEALS  TO  THE  COMMISSIONER 

As  we  have  stated,  the  widest  rights  of  appeal  to  the 
Commissioner  are  given  to  "a  person  affected  by  a  decision  of 
or  by  any  act  or  thing,  whether  ministerial  or  judicial,  done 
or  refused  or  neglected  to  be  done  by  a  recorder. "^^ 

The  appeal  is  in  the  nature  of  a  trial  de  novo. 

'The  appeal  shall  be  by  notice  in  -writing  in  the  prescribed 
form,  filed  in  the  office  of  the  recorder  and  served  upon  all 
parties  adversely  interested  within  fifteen  days  from  the 
entry  of  the  decision  on  the  books  of  the  recorder  or  within 
such  further  period  not  exceeding  fifteen  days  as  the  Com- 
missioner allows.  .  .  ."^^ 

There  is  one  obvious  difficulty  in  this  provision.  The 
Commissioner  cannot  extend  the  time  for  appealing  after  the 
expiration  of  30  days  from  the  entry  of  the  decision  in  the 
books  of  the  recorder  except  possibly  in  those  cases  coming 
within  sections  96  (cancellation)  and  134  (disputes  between 
licensees).  It  may  well  be  that  in  certain  cases  the  party  affected 
would  not  gain  knowledge  of  the  entry  of  the  decision  in  the 
books  of  the  recorder  until  after  the  expiry  of  the  30  day 
period.  There  is  no  provision  requiring  the  parties  to  be 
notified,  although  this  is  now  the  practice.  Notices  may  mis- 
carry or  there  may  be  parties  affected  by  the  order  who  were 
not  made  parties  on  the  original  application. 

Provision  should  be  made  that  adequate  notice  be  given 
to  parties  affected  by  the  decision  of  the  recorder. 

The  Commissioner  should  have  a  right  to  extend  the 
time  for  appealing  notwithstanding  that  the  30  day  period 

^'Ihid.,  s.  158(1). 
"76 jU,  s,  138(3). 


Chapter  118         1905 

may  have  expired.  Such  power  should  be  exercised  only  after 
notice  to  all  persons  who  may  be  affected  and  on  its  being 
shown  that  no  substantial  injustice  will  be  caused  by  the 
order. 


EXPERT  ASSISTANCE 

"The  Commissioner  may  obtain  the  assistance  of  engineers, 
surveyors  or  other  scientific  persons  who  may  under  his  order 
view  and  examine  the  property  in  question,  and  in  giving  his 
decision  he  may  give  such  weight  to  their  opinion  or  report 
as  he  deems  proper."^® 

There  is  no  provision  that  copies  of  the  opinions  or 
reports  received  by  the  Commissioner  must  be  furnished  to 
the  parties  affected  and  that  they  shall  have  an  opportunity 
to  make  submissions  in  regard  thereto.  This  is  the  practice 
but  it  should  be  required  by  statute  or  rules  passed  there- 
under. 


EVIDENCE  OTHER  THAN  THAT  ADDUCED 
BY  THE  PARTIES 

In  addition  to  the  evidence  adduced  by  parties  the  Com- 
missioner may  require  and  receive  such  other  evidence  as  he 
deems  proper  and  may  view  and  examine  the  property  in 
question  and  give  his  decision  upon  such  evidence  or  view  and 
examination,  or  he  may  appoint  a  person  to  make  an  inspec- 
tion of  the  property  and  he  may  receive  as  evidence  and  act 
upon  the  report  of  a  person  so  appointed. ^^ 

Where  the  Commissioner  receives  other  evidence  than 
was  adduced  by  the  parties  or  acts  on  the  report  of  a  person 
who  has  been  appointed  to  make  an  inspection,  he  should  be 
required  to  furnish  the  parties  with  a  statement  of  the  evi- 
dence he  has  received  and  in  the  case  of  a  report,  a  copy  of  the 
report.  The  Act,  however,  does  provide  that  "where  the  Com- 
missioner proceeds  partly  on  a  view  or  on  any  special  knowl- 
edge or  skill  possessed  by  himself,  he  shall  put  in  writing  a 
statement  of  the  same  sufficiently  full  to  enable  a  judgment  to 

"/biU,  s.  142. 
^'Ibid.,  s.  143(1). 


1906         The  Mining  Commissioner 

be  formed  of  the  weight  that  should  be  given  thereto. "^^ 
There  should  be  a  provision  that  a  copy  of  this  statement 
should  be  furnished  to  the  parties. 

COSTS 

The  costs  in  proceedings  before  the  Commissioner  are  in 
his  discretion  and  he  may  order  that  they  be  taxed  or  he  may 
order  that  a  lump  sum  be  paid  in  lieu  of  taxed  costs. ^^  This 
provision  would  appear  to  give  to  the  Commissioner  a  com- 
plete discretion  as  to  costs  but  that  is  not  true. 

"The  costs  and  disbursements  payable  upon  proceedings 
before  the  Commissioner,  as  to  any  matter  in  which  the 
amount  or  value  of  the  property  in  question  does  not  in  the 
opinion  of  the  Commissioner  exceed  $400,  shall  be  according 
to  the  tariff  of  the  county  court,  and  as  to  any  matter  in 
which  the  amount  or  value  of  the  property  in  question  in 
his  opinion  exceeds  $400,  shall  be  according  to  the  tariff  of 
the  Supreme  Court."-*^ 

These  provisions  are  unduly  confusing.  In  the  first  place, 
the  requirement  that  where  the  amount  or  the  value  of  the 
property  in  the  opinion  of  the  Commissioner  does  not  exceed 
$400,  the  costs  shall  be  on  the  county  court  scale  and  other 
costs  shall  be  on  the  Supreme  Court  scale  makes  the  Com- 
missioner's "court"  the  most  expensive  in  the  Province  in 
which  to  litigate. 

Where  the  amount  involved  is  not  more  than  $400  in 
counties  or  $800  in  districts  an  action  may  be  brought  in  the 
division  court  in  Ontario.  The  county  and  district  courts 
have  a  normal  jurisdiction  of  $7,500. 

Sections  149  and  150  should  be  repealed  and  provision 
made  to  confer  on  the  Commissioner  the  same  jurisdiction 
with  respect  to  costs  as  is  vested  in  a  Supreme  Court  judge  or 
a  county  court  judge  and  to  provide  that  where  in  the  opinion 
of  the  Commissioner  the  amount  or  value  of  the  property  in 
question  is  not  more  than  $7,500,  costs  should  not  be  awarded 
on  a  scale  higher  than  that  provided  in  the  tariff  of  costs 
applicable  to  proceedings  in  the  county  court. 

"/biU,  s.  143(2). 
^"Ihid.,  s.  149. 
^°Ihid.,  s.  150(1). 


Chapter  118         1907 

FORM  OF  THE  COMMISSIONER'S  ORDER 

"Except  where  inapplicable,  the  decision  of  the  Commis- 
sioner shall  be  in  the  form  of  an  order  or  judgment,  but 
need  not  show  upon  its  face  that  any  proceeding  or  notice 
was  had  or  given  or  that  any  circumstance  existed  necessary 
to  g"i\e  jurisdiction  to  make  the  order  or  judgment."-^ 

Mr.  McFarland  was  asked  if  he  knew  any  reasons  why  an 
order  should  not  show  on  its  face  that  the  circumstances  ex- 
isted necessary  to  give  jtirisdiction  to  make  the  order.  His 
answer  was,  "No,  I  don't.   I  see  no  reason  why  it  shouldn't." 

It  is  desirable  that  there  shotild  be  certain  informality  in 
the  proceedings  before  the  Commissioner  but  we  see  no  good 
reason  for  a  specific  statutory  provision  that  an  order,  which 
may  involve  very  large  sums  of  money  or  valuable  rights,  need 
not  show  the  elementary  things  necessary  to  give  the  tribunal 
making  the  order  jurisdiction,  e.g.,  the  party  w^ho  applied  for 
it;  the  persons  appearing,  the  notices  served  and  the  nature  of 
the  issue. 

If  the  intention  of  the  provision  is  that  the  order  should 
not  be  invalid  because  it  does  not  show^  on  the  face  of  it  all 
the  circumstances  necessai^  to  give  jurisdiction  to  make  an 
order,  it  should  be  stated  in  the  statute. 

Provision  should  be  made  for  a  proper  form  of  the  formal 
order. 

APPEALS  TO  THE  COURT  OF  APPEAL 

As  we  have  stated,  there  are  wide  rights  of  appeal  given 
by  the  statute.  Any  decision  of  the  Commissioner  may  be 
appealed  to  the  Court  of  Appeal.-^ 

Although  there  is  no  provision  that  the  evidence  shall  be 
taken  down  in  written  form  except  as  required  by  the  Com- 
missioner or  a  party  to  the  proceedings,-^  that  is  the  practice. 

There  should  be  a  pro\'ision  that  a  record  be  made  of 
the  evidence  taken  before  the  Commissioner  in  the  same 
form  as  is  required  in  the  Supreme  Court. 

Except  in  cases  where  references  have  been  made  by  the 
Supreme  Court  to  the  Commissioner  as  an  official  referee  and 

'Ubid.,  s.  152(1). 
"Ibid.,  s.  155. 
'"Ibid.,  s.  148. 


1908         The  Mining  Commissioner 

in  the  case  of  a  reference  under  the  Arbitrations  Act,  the 
decision  of  the  Commissioner  is  final  unless  an  appeal  is  taken 
within  fifteen  days  after  the  filing  thereof  with  the  recorder 
or  in  the  Department  or  within  such  further  period  not  ex- 
ceeding fifteen  days  as  the  Commissioner  or  a  judge  of  the 
Supreme  Court  allows. ^^ 

The  appeal  shall  be  begun  by  filing  a  notice  of  appeal 
with  the  recorder  of  the  division  in  which  the  property  in 
question  or  part  of  it  is  situated  and  paying  the  prescribed 
fee.  "Unless  such  filing  and  payment  are  so  made,  and  unless 
the  appeal  is  set  down  and  a  certificate  of  such  setting  down 
lodged  with  the  recorder  within  five  days  after  the  expiration 
of  such  fifteen  days"  or  such  further  time  allowed  by  the 
Commissioner  or  a  judge  of  the  Supreme  Court,  the  appeal 
shall  be  deemed  to  be  abandoned.-^ 

This  language  is  very  confusing  and  the  provision  is  a 
very  important  one.  Do  the  words  "set  down"  mean  the 
appeal  completed  by  filing  the  evidence  and  all  material  neces- 
sary for  the  hearing  of  the  appeal?  Or  do  they  mean  the  filing 
of  the  notice  of  appeal  with  proof  of  service? 

The  latter  is  the  only  reasonable  interpretation  as  it 
would  not  be  reasonable  to  require  that  an  appeal  be  com- 
pleted for  hearing  within  the  limited  time  provided  under  the 
Act.  The  procedure  should  be  clarified.  We  recommend  the 
following  steps: 

(1)  The  appeal  shall  be  commenced  by  filing  a  notice  of 
appeal  with  the  recorder  and  the  payment  of  the  prescribed 
fee  within  1 5  days  from  the  date  of  the  decision. 

(2)  The  notice  of  appeal  with  proof  of  sendee  shall  be  filed 
with  the  Registrar  of  the  Supreme  Court  forthwith  after 
service. 

(3)  A  certificate  of  the  Registrar  certifying  that  the  notice 
of  appeal  and  proof  of  service  have  been  filed  shall  be  filed 
with  the  recorder  within  20  days  of  the  commencement  of 
the  appeal. 

(4)  Unless  the  notice  of  appeal  and  the  certificate  of  the 
Registrar  are  filed  with  the  recorder  within  the  required 
time  the  appeal  shall  be  deemed  to  have  been  abandoned. 

'*Ibid.,  s.  156(1). 
"Ibid.,  s.  156(2). 


Chapter  lis         1909 

(5)  The  Commissioner  or  a  judge  of  the  Supreme  Court 
shall  have  power  to  extend  the  time  for  filing  the  notice  of 
appeal  and  the  certificate  notwithstanding  that  the  time  for 
filing  may  have  expired. 

(6)  An  order  extending  the  time  shall  not  be  made  unless 
the  Commissioner  or  the  judge  is  satisfied  that  no  substan- 
tial wrong  or  miscarriage  of  justice  will  result. 

HOURS  FOR  BUSINESS 

There  is  no  provision  in  the  Act  specifying  the  hours 
when  the  offices  of  the  recorders  or  the  Commissioner  must  be 
open  for  business. 

The  absence  of  such  provision  works  two  ways.  A  rec- 
order is  not  required  to  have  his  office  open  at  certain  specific 
times  to  receive  registrations  or  filings  and  business  may  be 
done  with  a  recorder  at  his  home  or  where  he  may  be  found. 
We  cannot  put  it  any  better  than  Mr.  McFarland  did  in  his 
interview  with  the  Commission.  "Someone  may  come  in  after 
hours  and  contact  the  recorder  at  home  and  get  him  to  take 
some  action  or  something  that  I  don't  think  he  should  and 
in  my  own  way  I  have  tried  to  tell  them  that  they  must  not 
accept  any  documents  except  during  the  hours  of  8:30  and  5, 
the  office  hours;  but  I  think  there  should  be  some  specific 
limitation  in  the  statute." 

The  Judicature  Act  provides  that  every  local  registrar's 
office  and  the  offices  of  the  Supreme  Court  at  Osgoode  Hall 
shall  be  kept  open  from  9:30  o'clock  in  the  forenoon  until 
4:30  in  the  afternoon  except  on  Saturdays  and  holidays. ^^ 
There  is  a  similar  provision  in  the  County  Courts  Act'^  and 
there  are  provisions  in  the  Registry  Act^^  and  the  Land  Titles 
Act^'  concerning  the  hours  during  which  the  offices  must  be 
open.  The  Registry  Act  provides  that  no  instrument  shall 
be  received  for  registration  except  within  the  hours  provided. 

We  agree  with  Mr.  McFarland  that  specific  provision 
should  be  made  in  the  Mining  Act  defining  the  hours  that 
the  offices  of  the  recorders  and  the  Commissioner  should  be 


"R.S.O.  1960,  c.  197.  s.  91. 
*"R.S.O.  1960,  c.  76,  s.  6. 
"R.S.O.  1960,  c.  348,  s.  16. 
"R.S.O.  1960,  c.  204,  s.  19. 


1910         The  Mining  Commissioner 

open  and  stating  the  days  on  which  they  should  be  open  for 
business. 

RECOMMENDATIONS 

1.  Security  of  tenure  should  be  provided  for  the  Com- 
missioner. 

2.  The  Lieutenant  Governor  in  Council  should  have  power 
to  appoint  a  person  to  perform  all  the  duties  of  the  Com- 
missioner if  for  any  reason  he  is  unable  to  act. 

3.  Rules  of  practice  suitable  for  the  practice  before  the 
Commissioner  should  be  prepared  and  be  available  in 
pamphlet  form. 

4.  Provision  should  be  made  that  in  forfeiture  proceedings 
a  person  claiming  under  the  licensee  and  any  person 
holding  an  adverse  interest  should  have  a  right  to  be 
heard. 

5.  Section  157  should  be  repealed. 

6.  Provision  should  be  made  giving  a  right  to  apply  to  a 
judge  of  the  Supreme  Court  for  an  order  of  committal 
w^here  a  person  has  refused  to  obey  the  orders  of  the 
Commissioner. 

7.  Where  the  Commissioner  or  recorder  makes  an  order 
affecting  rights  he  should  be  required  to  give  written 
reasons  if  requested. 

8.  Provision  should  be  made  for  filing  all  orders  in  a  central 
place  and  when  so  filed  that  they  may  be  enforced  in  the 
same  manner  as  orders  of  the  Supreme  Court.  They 
should  not  be  filed  with  the  Registrar  or  local  registrar 
of  the  Supreme  Court. 

9.  Provision  should  be  made  that  adequate  notice  be  given 
to  parties  affected  by  an  order  of  a  recorder. 

10.  The  Commissioner  should  have  a  right  to  extend  the 
time  on  terms,  for  appealing  from  an  order  of  a  recorder 
after  the  thirty  day  period  provided  in  the  Act  has 
expired. 

1 1 .  Provision  should  be  inade  requiring  the  Commissioner 
to  furnish  parties  to  proceedings  before  him  with  copies 


Chapter  118         1911 

of  opinions  or  reports  received  by  him  under  section  142 
and  requiring  that  an  opportunity  be  given  to  the  parties 
to  make  submissions  relevant  thereto. 

12.  Where  the  Commissioner  receives  evidence  in  addition 
to  that  adduced  by  the  parties  or  a  report  of  a  person 
appointed  as  provided  in  section  143(1),  he  should  be 
required  to  furnish  the  parties  with  a  statement  of  the 
evidence  he  has  received  and  in  the  case  of  a  report,  a 
copy  of  the  report. 

13.  Where  the  Commissioner  proceeds  partly  on  a  view  or 
any  special  knowledge  or  skill  possessed  by  him  he  should 
be  required  to  furnish  the  parties  with  a  copy  of  the 
written  statement  he  is  required  to  make  under  section 
143(2)  of  the  Act. 

14.  Sections  149  and  150  should  be  repealed  and  provision 
made  conferring  on  the  Commissioner  the  same  juris- 
diction with  respect  to  costs  as  is  vested  in  a  Supreme 
Court  or  county  court  judge  subject  to  a  provision  that 
where  in  the  opinion  of  the  Commissioner  the  amount 
or  value  of  the  property  in  question  is  not  more  than 
$7,500  the  costs  should  not  be  awarded  on  a  scale  higher 
than  the  tariff  of  costs  applicable  in  county  court  pro- 
ceedings. 

15.  Provision  should  be  made  for  a  proper  form  of  formal 
order. 

16.  There  should  be  a  provision  that  a  record  be  made  of 
the  evidence  taken  before  the  Commissioner  in  the  same 
form  as  is  required  in  the  Supreme  Court. 

17.  The  following  should  be  the  procedure  on  an  appeal  to 
the  Court  of  Appeal: 

(1)  The  appeal  shall  be  commenced  by  filing  a  notice 
of  appeal  with  the  recorder  and  the  payment  of  the  pre- 
scribed fee  within  15  days  from  the  date  of  the  decision. 

(2)  The  notice  of  appeal  with  proof  of  service  shall  be 
filed  with  the  Registrar  of  the  Supreme  Court  forthwith 
after  service. 


1912  The  Mining  Commissioner 

(3)  A  certificate  of  the  Registrar  certifying  that  the 
notice  of  appeal  and  proof  of  service  have  been  filed  shall 
be  filed  with  the  recorder  within  20  days  of  the  com- 
mencement of  the  appeal. 

(4)  Unless  the  notice  of  appeal  and  the  certificate  of  the 
Registrar  are  filed  with  the  recorder  within  the  required 
time  the  appeal  shall  be  deemed  to  have  been  abandoned. 

(5)  The  Commissioner  or  a  judge  of  the  Supreme  Court 
shall  have  power  to  extend  the  time  for  filing  the  notice 
of  appeal  and  the  certificate  notwithstanding  that  the 
time  for  filing  may  have  expired. 

(6)  An  order  extending  the  time  shall  not  be  made  un- 
less the  Commissioner  or  the  judge  is  satisfied  that  no 
substantial  wrong  or  miscarriage  of  justice  will  result. 

18.  The  statute  should  set  out  the  hours  that  the  offices  of 
the  Mining  Commissioner  and  the  recorders  shall  be 
open  for  business. 


CHAPTER  119 


The  Ontario  Energy  Board 


INTRODUCTION 

(^CONSTITUTIONAL  responsibility  for  the  regulation  <>l 
production  and  distribution  of  gas  and  oil  is  shared  by  the 
Parliament  of  Canada  and  the  provincial  legislatures  under 
the  British  North  America  Act/  Both  levels  of  government 
have  enacted  relevant  legislation.  In  1963  John  Ballem  wrote: 
"Oil  and  gas  has  the  dubious  and  unwelcome  distinction  of 
being  one  of  the  most  heavily  regulated  and  tightly  controlled 
industries  in  Canada.  In  many  of  its  activities,  the  industry  is 
so  regulated  that  it  resembles  a  public  utility  rather  than  the 
free-wheeling  organization  imagined  by  the  public."^ 

As  well  as  exercising  certain  specific  powers  of  decision, 
the  National  Energy  Board  is  required  to 

".  .  .  study  and  keep  under  review  matters  over  which  the 
Parliament  of  Canada  has  jurisdiction  relating  to  the  ex- 
ploration for,  production,  recovery,  manufacture,  processing, 
transmission,  transportation,  distribution,  sale,  purchase,  ex- 
change and  disposal  of  energy  and  sources  of  energy  within 
and  outside  of  Canada  .  .  ."^ 

The  Ontario  Energy  Board,  the  Ontario  counterpart  of 
the  National  Energy  Board,  is  not  given  a  specific  supervisory 
role,  unless  by  implication.  It  had  its  genesis  in  the  Ontario 
Fuel  Board  which  was  established  in  1954.  The  Fuel  Board 
combined  the  functions  of  the  Natural  Gas  Commissioner, 


^B.N.A.  Act,  ss.  91(2),  92(10)  and  92(13). 

*Ballem:    Constitutional    Validity    of   Provincial    Oil   and    Gas   Legislation, 
(1963)  41  C.B.R.  199,  199. 
•Can.  1959,  c.  46,  s.  22(1). 

1913 


1914         The  Ontario  Energy  Board 

the  Natural  Gas  Referee  and  the  Fuel  Controller  "to  enable 
the  Province  to  keep  pace  with  the  anticipated  expansion 
and  growth  of  the  natural  gas  industry  in  Ontario,  resulting 
from  the  importation  of  large  volumes  of  natural  gas  from 
the  United  States  and  western  Canada."^  The  Board  was 
responsible  for  the  control  of  the  production  and  distribution 
of  natural  gas  and  other  fuels  in  Ontario.  It  derived  its 
powers  from  the  Ontario  Fuel  Board  Act  1954,^  the  Assess- 
ment Act,*^  the  Public  Utilities  Act/  the  Pipe  Lines  Act, 
1958,^  and  the  Municipal  Franchises  Act.° 

The  powers  of  the  Fuel  Board  under  the  Fuel  Board  Act 
were  wide.  They  included  control  over  production,  storage, 
transmission,  distribution,  sale,  disposal,  supply  and  use  of 
natural  gas.^"  In  conferring  these  powers  "...  the  intent  of 
the  Legislature  appears  to  have  been  twofold:  to  ensure  the 
orderly  development  of  the  natural  gas  industry  and  to  safe- 
guard public  safety  in  regard  to  the  production,  transmission 
or  distribution,  and  consumption  of  natural  gas  (and  in  some 
instances  oil  and  coal)."^^ 

In  September  1959  the  Board  was  placed  for  adminis- 
trative purposes  under  the  Department  of  Energy  Resources 
(now  named  the  Department  of  Energy^  and  Resources  Man- 
agement).^^ 

The  Ontario  Energy  Board  was  created  in  1960  to  re- 
place the  Ontario  Fuel  Board  when  the  Energy  Act^^  and  the 
Ontario  Energy  Board  Act^^  came  into  force.  The  Minister 
of  Energy  Resources  said  on  introducing  these  Acts,  ".  .  .  the 
basic  purpose  of  the  two  Acts  is  to  separate  the  quasi-judicial 
functions  of  the  fuel  board  from  the  purely  administrative 
functions,  so  that  the  fuel  board  will  retain  control  over  mat- 
ters dealing  with  quasi-  or  semi-judicial  functions,  and  the 

^Report  of  the  Committee  on  the  Organization  of  Government  in  Ontario 
(1959),  412. 

'Ont.  1954,  c.  63. 

"R.S.O.  1957,  c.  2,  s.  7. 

'Ont.  1954,  c.  81. 

«Ont.  1958,  c.  78. 

*Ont.  1955,  c.  49. 
"Ont.  1954,  c.  63,  s.  15. 
^^Report  of  the  Committee  on  the  Organization  of  Government  in  Ontario 

(1959),  72-73. 
^^'R.S.O.  1960,  c.  95,  s.  1(a)  as  amended  by  Ont.  1964,  c.  21,  s.  2(1). 
"Ont.  1960,  c.  30. 
"Ont.  1960,  c.  75. 


Chapter  119         1915 

Department  of  Energy  Resources  will  assume  the  responsi- 
bilities dealing  with  purely  administrative  functions,"''^  The 
Minister  summarized  the  basic  functions  of  the  Ontario 
Energy  Board  as  follows: 

(1)  to  grant  and  extend  new  and  existing  franchises  to  the 
municipalities; 

(2)  to  hear  complaints  in  relation  to  service  and  delivery; 

(3)  to  hear  applications  for  the  withdrawal  of  service  to  a 
community  or  part  of  a  community; 

(4)  to  fix  rates  which  should  prevail  in  the  various  areas 
from  time  to  time; 

(5)  to  hear  applications  which  are  referred  to  it  with  ref- 
erence to  the  cancellation  of  various  licences  which  may  be 
issued  by  the  Department  of  Energy  Resources; 

(6)  to  hear  expropriation  applications  for  new  transmission 
lines. 

With  the  introduction  of  the  Energy  Act,  1964^^  and  the 
Ontario  Energ)^  Board  Act,  1964^"  there  were  no  changes  in 
principle. ^^ 

COMPOSITION  OF  THE  BOARD 

The  Ontario  Energy  Board,  to  w^hich  we  shall  refer  here- 
inafter as  "the  Board,"  has  some  of  the  characteristics  of  an 
independent  board.  It  consists  of  not  fewer  than  three  and 
not  more  than  five  members  appointed  by  the  Lieutenant 
Governor  in  Council.  One  is  designated  as  chairman  and  one 
or  more  may  be  designated  as  vice-chairmen.  Two  members 
of  the  Board  form  a  quorum. ^^ 

We  were  advised  in  a  discussion  with  the  chairman  of 
the  Board  that  it  has  been  the  practice  to  appoint  a  number 
of  part-time  members  who  are  usually  lawyers.  Although  two 
form  a  quorum,  three  members  usually  sit  on  major  rate 
cases. 


^^Legislature  of  Ontario  Debates  I960,  196. 

"Ont.  1964,  c.  27. 

"Ont.  1964,  c.  74. 

"Legislature  of  Ontario  Debates  1964,  Vol.  1.  857. 

^•Ont.  1964,  c.  74,  s.  2. 


1916         The  Ontario  Energy  Board 

The  Board  reports  annually  to  the  Minister^*^  but  funds 
are  appropriated  separately  for  it  by  the  Legislature.^^ 

The  Board  exercises  both  administrative  and  judicial 
powers  as  we  have  defined  them  in  Report  Number  1,  but  it 
lacks  many  of  the  characteristics  of  an  independent  tribunal. ^- 

By  way  of  contrast  the  constitution  of  the  National 
Energy  Board  conforms  more  closely  to  our  recommenda- 
tions. Under  the  National  Energy  Board  Act^^  the  members 
of  the  Board  are  appointed  by  the  Governor  in  Council  to 
hold  office  during  good  behaviour  for  a  term  of  seven  years. 
Their  salaries  are  fixed  at  a  minimum  amount. ^^  Member- 
ship in  the  Board  is  not  open  to  anyone  who  is  not  a  Canadian 
citizen  or  who  is  an  owner,  shareholder,  director,  officer,  part- 
ner or  is  engaged  in  the  business  of  producing  or  dealing  in 
hydrocarbons  or  power  or  who  holds  any  bond,  debenture  or 
other  security  of  a  company  as  defined  in  the  Act.^'  There  is 
no  such  security  of  tenure  for  the  members  of  the  Ontario 
Board  nor  are  there  restrictions  with  respect  to  those  who  may 
become  members  of  the  Board. 

In  Report  Number  P°  we  emphasized  the  need  for  legal 
experience  for  members  of  judicial  tribunals  who  preside  at 
hearings  so  that  proper  rules  of  procedure  and  evidence 
would  be  applied.  There  is  no  provision  in  the  Act  that  any 
member  of  the  Board  should  have  legal  qualifications.  Pro- 
vision should  be  made  that  the  Board  should  be  presided  over 
by  at  least  one  legally-trained  member. 

POWERS  OF  DECISION 

Powers  are  conferred  on  the  Board  under  five  Acts— 
the  Ontario  Energy  Board  Act,  1964,  (hereinafter  in  this 
Chapter  referred  to  as  "the  Act"),^'^  the  Energy  Act,  1964,^^ 

'"Ibid.,  s.  9. 

■'Ibid.,  s.  10. 

"pp.  122-23  supra. 

"Can.  1959,  c.  46,  s.  3,  as  amended  by  Can.  1960-61,  c.  52,  s.  2. 

"Ibid.,  s.  4(1)  as  re-enacted  by  Can.  1966-67,  c.  84,  s.  3. 

'^Ibid,  s.  3(5). 

"p.  123  supra. 

"Ont.  1964,  c.  74. 

^'Ont.  1964,  c.  27. 


Chapter  119         1917 

the  Municipal  Franchises  Act,"  the  Public  Utilities  Act'"  and 
the  Assessment  Act  1968-69.^^ 

We  have  set  out  in  the  Appendix  to  this  Chapter  a  brief 
summary  of  the  powers  conferred  on  the  Board  under  the 
relevant  statutes. 

Generally,  the  Board  regulates  the  production  and  dis- 
tribution of  oil  and  gas  from  discovery  to  the  market.   It  may 

(1)  allocate  market  demands  to  the  several  sources  from 
which  oil  or  gas  is  produced  within  a  field  or  pool;^^ 

(2)  require  the  joining  of  interests  within  a  spacing  unit, 
field  or  pool  for  the  drilling  and  operation  of  wells;^^ 

(3)  control  the  transmission  of  oil  and  gas  by  pipeline  and 
the  construction  of  pipelines;^^ 

(4)  fix  rates  for  the  sale  of  gas  by  transmitters,  distributors 
and  storage  companies  and  for  the  transmission,  distribu- 
tion and  storage  of  gas;^^ 

(5)  recommend  gas  storage  areas ;^® 

(6)  control  all  injection  into  and  drilling  in  gas  storage 
areas  ;''^ 

(7)  approve  of  the  construction  and  operation  of  works  to 
supply  gas  in  a  municipality;^^ 

(8)  conduct  hearings  and  report  to  the  Minister  with  re- 
spect to  applications  for  permits  to  bore,  drill  or  deepen 
wells  in  a  designated  gas  storage  area;^® 

(9)  fix  compensation  for  rights  to  store  gas;^° 

(10)  hear  applications  with  respect  to  the  disposition  of 
gas  transmission  lines  and  share  control  of  companies  en- 
gaged in  the  transmission  and  storage  of  gas,^^ 


•R.S.O.  I960,  c.  255. 

"R.S.O.  1960,  c.  335. 

'Ont.  1968-69,  c.  6,  s.  33. 

•Ont.  1964,  c.  74,  s.  24(a). 

Hhid.,  s.  24(b)(c). 

*Ibid.,  s.  37. 

^Ibid.,  s.  19. 

"Ibid-.s.  35(l)(k). 

'Ibid.,  ss.  20,  23. 

'R.S.O.  1960,  c.  255,  ss.  8,  9. 

"Ont.  1964,  c.  74,  s.  23. 

"Ibid.,  s.  21,  as  amended  by  Ont.  1968-69,  c.  81,  s.  5. 

^Ibid.,  s.  25a,  as  enacted  by  Ont.  1968-69,  c.  81,  s.  7. 


1918         The  Ontario  Energy  Board 

With  respect  to  most  of  the  decision-making  powers  the 
specific  legislative  policy  to  be  implemented  is  broadly  ex- 
pressed and  few  rules  and  standards  or  factors  to  be  taken 
into  consideration  temper  the  wide  powers  of  the  Board. 

The  only  qualification  in  allocating  market  demands  is 
that  the  shares  be  "just  and  equitable".^"  On  an  application 
for  leave  to  construct  a  transmission  line,  production  line, 
distribution  line  or  station  the  Board  must  be  of  the  opinion 
that  the  construction  of  the  line  or  station  is  in  the  "public 
interest."^^ 

No  policy,  rules  or  factors  are  specified  for  the  Board's 
decision  with  respect  to  injection  and  drilling  in  storage 
areas, ^^  and  no  rules  or  factors  are  specified  for  the  issuance 
of  certificates  of  public  convenience  and  necessity  and  the 
approval  given  under  the  Municipal  Franchises  Act.^'^ 

The  provisions  of  the  Ontario  statutes  are  to  be  con- 
trasted with  those  of  the  federal  National  Energy  Board  Act^® 
where  specific  factors  to  be  considered  in  granting  certificates 
of  necessity  and  convenience  are  set  out.  We  quote  in  full  the 
relevant  provision  of  the  National  Energy  Board  Act: 

"The  Board  may,  subject  to  the  approval  of  the  Governor 
in  Council,  issue  a  certificate  in  respect  of  a  pipe  line  or  an 
international  power  line  if  the  Board  is  satisfied  that  the  line 
is  and  will  be  required  by  the  present  and  future  public 
convenience  and  necessity,  and,  in  considering  an  application 
for  a  certificate,  the  Board  shall  take  into  account  all  such 
matters  as  to  it  appear  to  be  relevant,  and  without  limiting; 
the  generality  of  the  foregoing,  the  Board  may  have  regard 
to  the  following: 

(a")  the  availability  of  oil  or  gas  to  the  pipe  line,  or  power 
to  the  international  power  line,  as  the  case  may  be; 

(b)  the  existence  of  markets,  actual  or  potential; 

(c)  the  economic  feasibility  of  the  pipe  line  or  international 
power  line; 

(d)  the  financial  responsibility  and  financial  structure  of  the 
applicant,  the  methods  of  financing  the  line  and  the  extent 
to  which  Canadians  will  have  an  opportunity  of  participating 
in  the  financing,  engineering  and  construction  of  the  line; 


^^Ihid.,  s.  24. 
^Uhid.,  s.  39(8). 
^'Ihid.,  ss.  21  and  23. 
"R.S.O.  1960,  c.  255,  s.  8. 
"Can.  1959,  c.  46. 


Chapter  119         1919 

and 

(c)  any  public  interest  that  in  the  Board's  opinion  may  be 
affected  by  tlie  j^ranting  or  the  relusino  of  the  application.""*'' 

Rate-Making 

One  of  the  main  powers  exercised  by  the  Board  is  rate- 
making  in  the  sale,  transmission,  distribution  and  storage  of 
gas.  Of  the  eighty-five  hearings  held  by  the  Board  during 
1969,  thirty-four  were  concerned  with  rates. "'^ 

"Subject  to  the  regulations,  the  Board  may  make  orders 
approving  or  fixing  just  and  reasonable  rates  and  other 
charges  for  the  sale  of  gas  by  transmitters,  distributors,  and 
storage  companies,  and  for  transmission,  distribution  and 
storage  of  gas."'*^ 

The  Lieutenant  Governor  in  Council  may  make  regu- 
lations requiring  the  Board  to  approve  of  or  fix  rates  or  other 
charges^"  and  the  Board  may  of  its  own  motion  or  at  the  re- 
quest of  the  Lieutenant  Governor  in  Council  hold  a  hearing 
to  inquire  into  existing  rates,  in  which  case  the  Board  shall 
make  an  order  approving  or  fixing  just  and  reasonable  rates 
and  other  charges.  At  such  a  hearing  the  burden  of  establish- 
ing that  such  rates  are  just  and  reasonable  is  on  the  trans- 
mitter, distributor  or  storage  company. ^^ 

Except  those  who  sell,  transmit,  distribute  or  store  lique- 
fied petroleum  gas,  no  person  engaged  in  the  transmission, 
distribution  or  storage  of  gas  may  sell  gas  or  charge  for  its 
transmission,  distribution  or  storage  other  than  in  accordance 
with  an  order  of  the  Board. ^^ 

No  policy  is  set  out  in  the  legislation  to  be  implemented 
by  the  Board  in  exercising  its  powers  to  decide  whether  to  fix 
or  not  to  fix  rates.  Where  it  exercises  the  power  to  fix  rates, 
rates  must  be  "just  and  reasonable. "^^  The  social  or  economic 

"Ibid.,  s.  44. 

"Annual  Report  of  the  Ontario  Energy  Board,  1969,  3. 

"Ont.  1964,  c.  74,  s.  19(1). 

""Ibid.,  s.  35(l)(b). 

"76?rf.,  s.  19(6),  as  re-enacted  by  Ont.  1967,  c.  64,  s.  3(2). 

"/&/cf.,  s.  19(3)  and  O.  Reg.  323/64,  s.  4. 

"/ftiU,  s.  19(1). 


1 920         The  Ontario  Energy  Board 

policy  for  rate-making  is  not  expressed  in  the  Act  or  the 
regulations. 

The  Minister  in  introducing  the  legislation  gave  the 
following  reasons  for  the  necessity  for  controls: 

(1)  the  distribution  of  natural  gas  is  a  monopoly  and  a 
public  utility; 

(2)  people  become  tied  to  a  system  and  the  distributor  has 
a  large  investment  in  equipment. 

The  rate  system  should  therefore  be  designed  to  meet  the 
interests  of  the  consumer  and  distributor.^^ 

By  an  amendment  to  the  Act  passed  in  1969^^  the  Board 
is  required  to  fix  a  rate  base  and  criteria  are  laid  down  for 
determining  the  rate  base  but  the  rate  of  return  on  invested 
capital  is  not  fixed  by  statute.  The  Chairman  of  the  Board 
advised  us  that  it  had  been  stated  on  the  floor  of  the  Legis- 
lature that  the  rate  of  return  should  be  about  7%  but  he  was 
not  in  favour  of  an  allowable  rate  of  return  being  fixed  by 
statute. 

In  Report  Number  1,  in  speaking  of  administrative 
decisions  (and  rate-making  is  an  administrative  decision)  we 
said:  "The  general  policy  to  be  applied  in  making  the  deci- 
sion should  be  expressed  in  the  statute,  unless  the  principles 
and  considerations  to  govern  the  decision  are  well  under- 
stood."^^ The  amendment  to  the  statute  made  in  1969  has 
done  much  to  bring  the  statute  into  conformity  with  this 
recommendation.  We  have  come  to  the  conclusion  that  the 
allowable  rate  of  return  ought  not  to  be  fixed  by  statute. 
There  are  so  many  changing  economic  considerations  in- 
volved in  fixing  a  rate  of  return  that  it  would  be  unwise  to 
lay  down  fixed  limits,  binding  on  the  Board  in  determining 
what  is  reasonable.  The  economic  development  of  the  coun- 
try in  many  areas  is  dependent  on  the  availability  of  capital 
for  the  extension  and  maintenance  of  adequate  transmission 
facilities  coming  under  the  control  of  the  Board.  The  rights 
of  appeal  from  the  Board's  orders,  with  which  we  shall  deal 
later,  should  be  an  adequate  safeguard  of  the  public  interest. 

^^Legislature  of  Ontario  Debates,  1960,  190. 

"Ont.  1968-69,  c.  81,  s.  4(1)  enacting  s.  19(la),  (lb),  (Ic),  (Id)  and  (le). 

"p.  130  supra. 


Chapter  119         1921 

POWERS  OF  INVESTIGATION 

"13(4a).  The  Board  of  its  own  motion  may,  and  upon  the 
request  of  the  Lieutenant  Governor  in  Council  shall,  inquire 
into,  hear  and  determine  any  matter  that  under  this  Act  or 
the  regulations  it  may  upon  an  application  inquire  into,  hear 
and  determine,  and  in  so  doing  the  Board  has  and  may 
exercise  the  same  powers  as  upon  an  application. "'^'^ 

"36.  The  Lieutenant  Governor  in  Council  may  require  the 
Board  to  examine  and  report  on  any  question  respecting 
energy  that,  in  the  opinion  of  the  Lieutenant  Governor  in 
Council,  requires  a  public  hearing."^^ 

Under  these  provisions  the  Board  is  given  an  arbitrary 
power  of  investigation.  When  it  acts  of  its  own  motion  there 
are  no  conditions  precedent  laid  down.  Power  is  given  to 
make  a  determination  even  when  no  dispute  has  arisen.  The 
regulations^^  set  out  a  code  of  procedure  to  be  followed  by 
"applicants"  for  relief,  but  this  procedure  may  be  set  at 
naught  where  the  Board  acts  on  its  own  motion. 

It  is  hard  to  conceive  why  a  Board  before  which  proceed- 
ings may  be  set  in  motion  by  applications  for  relief  or  by  the 
Lieutenant  Governor  in  Council  should  have  power  to  in- 
quire into  and  determine  on  its  own  motion  any  matter  that 
may  be  raised  on  an  application— which  comprehends  almost 
all  matters  coming  within  the  jurisdiction  of  the  Board. 

In  Report  Number  1  we  recommended  that  arbitrary 
powers  of  investigation  ought  not  to  be  conferred  in  any 
statute. ^"^  We  recommend  that  the  power  of  the  Board  to  act 
on  its  own  motion  to  inquire  into  and  determine  any  matter 
that  might  be  raised  upon  an  application  be  repealed.®^ 

Scope  of  the  Investigation 

The  powers  exercised  by  the  Board  under  the  first  sec- 
tion just  quoted  whether  of  its  own  motion  or  upon  a  refer- 
ence by  the  Lieutenant  Governor  in  Council  are  limited  to 

"Ont.  1964,  c.  74,  s.  13(4a)  as  enacted  by  Ont.  1967,  c.  64,  s.  2. 
"Ibid.,  s.  36. 

"O.  Reg.  324/64,  as  amended  by  O.  Reg.  99/67. 
•"p.  390  supra. 

'*See  references   to   a  similar   provision   in  The   Ontario   Municipal   Board, 
Chapter  125,  p.  2021  infra. 


1922         The  Ontario  Energy  Board 

"the  same  powers  as  upon  an  application"  but  under  the  sec- 
ond section  just  quoted  the  powers  o£  the  Lieutenant  Gov- 
ernor to  "require  the  Board  to  examine  and  report  on  any 
question  respecting  energy  that,  in  the  opinion  of  the  Lieu- 
tenant Governor  in  Council,  requires  a  public  hearing"  are 
not  limited.  The  word  "energy"  is  not  defined  in  the  Act  nor 
is  the  power  conferred  limited  to  those  matters  over  which 
the  Legislature  has  constitutional  control. 

It  should  be  clearly  stated  in  the  Act  what  forms  of 
energy  come  within  the  investigatory  powers  that  may  be 
exercised  by  the  Board  at  the  direction  of  the  Lieutenant 
Governor  in  Council. 

Again,  useful  comparison  may  be  made  with  the  National 
Energy  Board  Act. 

"The  Board  shall  study  and  keep  under  review  matters 
over  which  the  Parliament  of  Canada  has  jurisdiction  relat- 
ing to  the  exploration  for,  production,  recovery,  manufac- 
ture, processing,  transmission,  transportation,  distribution, 
sale,  purchase,  exchange  and  disposal  of  energy  and  sources 
of  energy  within  and  outside  of  Canada,  shall  report  thereon 
from  time  to  time  to  the  Minister  and  shall  recommend  to 
the  Minister  such  measures  within  the  jurisdiction  of  the 
Parliament  of  Canada  as  it  considers  necessary  or  advisable 
in  the  public  interest  for  the  control,  supervision,  conserva- 
tion, use,  marketing  and  development  of  energy  and  sources 
of  energy."^^ 

Powers  of  Compulsion 

The  powers  of  compulsion  conferred  on  the  Board  are 
wider  than  necessary  and  do  not  conform  to  the  recommenda- 
tions made  in  Report  Number  1. 

"14.  The  Board  for  the  due  exercise  of  its  jurisdiction  and 
powers  and  other^vise  for  carrying  into  effect  this  or  any 
other  Act  has  all  such  powers,  rights  and  privileges  as  are 
vested  in  the  Supreme  Court  with  respect  to  the  amendment 
of  proceedings,  addition  or  substitution  of  parties,  attend- 
ance and  examination  of  witnesses,  production  and  inspec- 
tion of  documents,  entry  on  and  inspection  of  property, 
enforcement  of  its  orders  and  all  other  matters  necessary  or 
proper  therefor."^^ 


•=Can.  1959,  c.  46,  s.  22(1). 
"Ont.  1964,  c.  74,  s.  14. 


Chapter  119         1923 

These  powers  fall  into  two  classes— compulsive  powers 
and  procedural  powers.  It  is  necessary  for  the  Board  to  have 
power  to  amend  its  own  proceedings  and  to  add  or  substitute 
parties.  Howc\er,  these  powers  should  be  set  out  concisely 
without  reference  to  the  powers  of  the  Supreme  Court. 

It  is  wrong  and  ininecessary  to  confer  on  the  Board  the 
broad  powers  of  compulsion  that  are  vested  in  the  Supreme 
Court.  We  have  discussed  such  statutory  provisions  repeat- 
edly and  dealt  with  them  in  Report  Number  1."^ 

In  our  interview  with  the  Chairman  of  the  Board  he 
agreed  that  it  was  not  necessary  that  the  Board  should  have 
power  to  commit  an  individual  to  jail  and  that  where  it  was 
necessary  to  enforce  the  attendance  of  witnesses  or  to  compel 
them  to  give  evidence  or  to  produce  documents  a  right  to 
apply  to  the  judge  of  the  Supreme  Court  for  an  order  of  com- 
mittal would  provide  an  adequate  remedy. 

We  recommend  that  when  the  Public  Inquiries  Act  is 
amended  as  we  recommended  in  Report  Number  1^^  the  rele- 
vant provisions  should  be  made  applicable  to  the  powders  of 
inquiry  vested  in  the  Board. ^^ 

PROCEDURE 

The  Board  has  in  all  matters  within  its  jurisdiction 
authority  to  hear  and  determine  all  questions  of  law  and 
fact.^^  Two  members  of  the  Board  form  a  quorum. ^^  Two 
non-lawyer  members  could  therefore  exercise  the  power  to 
decide  most  involved  questions  of  law\  It  is  the  practice  that 
one  legally  qualified  member  should  sit  at  all  hearings  where 
a  question  of  law  is  likely  to  arise.  How'ever,  as  we  shall  see 
later,  there  are  safeguards  provided  against  eiTors  of  law 
which  are  applicable  to  most  of  the  powers  exercised  by  the 
Board. 

Where  proceedings  are  commenced  by  filing  an  appli- 
cation (except  in  the  case  of  an  application  for  leave  to  dis- 
pose of  or  acquire  a  gas  system  and  an  application  for  a  regu- 
lation designating  a  gas  storage  area)  the  Board  shall  proceed 

®*p.  442  supra. 

«^pp.  463-65  supra. 

**See  references  to  similar  provisions  in  Chapter  125,  pp.  2020-27  infra. 

"Ont.  1964.  c.  74,  s.  13(1). 

^^Ibid.,  s.  2(4). 


1 924         The  Ontario  Energy  Board 

by  order.*^  It  is  not  clear  what  is  meant  by  "shall  proceed  by 
order."  We  assume  that  it  means  that  its  decisions  shall  be 
embodied  in  orders.  The  provision  would  not  appear  to 
apply  where  the  Board  proceeds  on  its  own  motion'"  since 
there  has  been  no  application.  However,  the  difficulty  would 
be  resolved  if  the  power  to  proceed  on  its  own  motion  is 
deleted  as  we  have  recommended.  Where  a  proceeding  before 
the  Board  is  commenced  by  requirement  of  the  Lieutenant 
Governor  in  Council  the  Board  shall  proceed  in  accordance 
with  such  requirement.'^^ 

The  need  for  clarification  of  the  matters  we  have  been 
discussing  is  important  since  a  right  to  a  hearing  depends  on 
whether  the  Board  makes  an  order  or  proceeds  in  accordance 
with  any  reference  or  order  in  council  under  the  Ontario 
Energy  Board  Act,  the  Energy  Act  or  any  other  Act."^^ 

In  addition,  the  provision  that  the  Board  shall  proceed 
"by  order"  would  appear  to  conflict  with  the  provisions  of  the 
Public  Utilities  Act  which  confer  power  on  the  Board  to  hear 
an  application  for  a  "declaration"  that  a  gas  distributing  com- 
pany has  contravened  the  provisions  of  a  by-law  prohibiting 
the  sale  or  distribution  of  gas  containing  sulphuretted  hydro- 
gen,"^^  In  such  case  the  Board  is  not  required  to  make  an 
order  but  it  may  make  a  declaration.  But  the  declaration  con- 
clusively establishes  the  fact. 

Under  the  section  of  the  Public  Utilities  Act  just  referred 
to,  a  municipality  may  apply  to  the  Board  for  a  declaration. 
This  would  be  an  "application"  coming  within  the  language 
of  section  13(2)  of  the  Ontario  Energy  Board  Act.  But  it  is  not 
intended  that  on  such  an  application  that  the  Board  should 
make  an  order  or  direction  of  any  sort.  It  makes  a  declaration 
from  which  legal  results  flow  by  reason  of  the  terms  of  the 
Public  Utilities  Act.  We  shall  return  to  discuss  these  pro- 
visions in  another  aspect  later. 

With  certain  exceptions  "the  Board  shall  not  make  any 
order  or  proceed  in  accordance  with  any  reference  or  order 

"Ubid.,  s.  13(2),  as  amended  by  Om.  1968-69,  c.  81,  s.  2. 
''°lbid.,  s.  13(4a),  as  enacted  by  Ont.  1967,  c.  64,  s.  2. 
'Ubid.,  s.  13(4). 

""Ibid.,  s.  15(3)  as  amended  by  Ont.  1968-69,  c.  81,  s.  3. 
"R.S.O.  1960,  c.  335,  s.  66. 


ChapUnllP  1925 

in  council  .  .  .  until  it  has  held  a  hearing  upon  notice  in  such 
manner  and  to  such  persons  as  the  Board  directs."^* 

This  provision  does  not  conform  to  our  recommendation 
in  Report  Number  1.  There  we  recommended  that  any  party 
whose  rights  may  be  affected  by  a  decision  should  have  an 
opportunity  of  attending  a  hearing  and  being  heard. ''^  The 
notice  required  to  be  given  under  the  Act  "to  such  persons  as 
the  Board  directs"  does  not  comply  with  this  recommenda- 
tion. The  Board  should  not  have  power  to  deprive  a  proper 
party  of  notice  merely  by  not  making  a  direction.  The  Act 
should  provide  for  reasonable  notice  by  service  or  publi- 
cation. 

One  of  the  exceptions  to  the  requirement  for  a  hearing  is 
where  the  Board  ".  .  .  is  satisfied  that  the  special  circum- 
stances of  the  case  so  require  or  that  the  delay  necessary  to 
give  notice  of  an  application  might  entail  serious  mischief.'"^^ 
This  is  an  entirely  subjective  test.  We  think  there  should  be 
a  requirement  that  special  circumstances  should  be  shown  to 
the  satisfaction  of  the  Board  and  that  it  should  be  m.ade  to 
appear  to  the  satisfaction  of  the  Board  that  the  delay  necessary 
to  give  notice  of  an  application  might  entail  serious  mischief 
before  the  Board  can  exercise  its  far-reaching  powers  to  pro- 
ceed ex  parte.  If  such  provision  w^ere  made,  the  Board  could 
not  act  arbitrarily. 

Reasons 

Where  an  application  has  been  opposed  the  Board  shall 
give  written  reasons  for  its  decision.  Where  an  application  is 
unopposed  the  Board  may  and  at  the  request  of  the  applicant 
shall  give  written  reasons  for  its  decision. '^'^ 

Rules 

A  code  of  rules  has  been  drawn  up  and  approved  by  the 
Lieutenant  Governor  in  Council.'^®  In  view  of  our  recom- 
mendation in  Report  Number  1  that  a  Statutory'  Po^vers  Pro- 
cedure Act  should  be  passed  and  a   Rules   Committee   be 

'*Ont.  1964,  c.  74,  s.  15(3)  as  amended  bv  Ont.  1968-69,  c.  81,  s.  3. 

"p.  213  supra. 

•'Ont.  1964.  c.  74,  s.  15(2). 

''Ibid.,  s.  17. 

•*0.  Reg.  324/64  as  amended  by  O.  Reg.  99/67. 


1926         The  Ontario  Energy  Board 

established^^  it  is  unnecessary  for  us  to  comment  extensively 
on  the  rules  of  the  Board.  There  is  no  provision  for  a  witness 
fee.  Provision  should  be  made  for  the  payment  of  witnesses 
as  we  recommended  in  Report  Number  1.^*^ 

Privilege 

No  document,  record  or  photocopy  in  the  hands  of  the 
Energy  Returns  Officer  shall  be  excluded  as  evidence  on  the 
grounds  of  pri\'ilege.*^  This  provision  is  much  too  broad  and 
it  is  difficult  to  see  its  purpose. 

The  Energ)'  Returns  Officer  has  power  to  obtain  certain 
information  under  the  Act.  Information  obtained  in  the 
ordinai-y  course  of  his  duties  would  normally  be  admissible  as 
evidence  before  the  Board.  Ho^\  ever,  if  in  the  exercise  of  his 
powers  of  entry  the  officer  should  get  possession  of  a  letter 
from  a  solicitor  to  his  client  advisins:  on  the  client's  business, 
the  solicitor  and  client  privilege  would  be  destroyed  by  this 
section. 

In  Report  Number  1  we  recommended  that  the  common 
law  and  statutory  rules  of  evidence  as  to  privilege  should  pre- 
vail in  proceedings  before  tribunals. ^^  Section  53(2)  should 
be  repealed. 

ENFORCEMENT  OF  BOARD'S  ORDERS 

The  Act  provides  for  the  entry  of  orders  of  the  Board 
in  the  office  of  the  Registrar  of  the  Supreme  Court  "where- 
upon the  order  shall  be  entered  in  the  same  way  as  a  judg- 
ment or  order  of  that  court  and  is  enforceable  as  such."^^ 

The  Chairman  advised  us  that  the  Board  had  never  had 
occasion  to  act  under  this  provision.  The  question  has  been 
raised  by  Mr.  Justice  Laskin  as  to  whether  a  provision  such 
as  this  makes  the  Board  a  court  within  the  meaning  of 
section  96  of  the  B.N.A.  Act.«^ 

Any  difficulty  that  might  arise  through  the  wording 
of  the  statute  would  be  resolved  if  the  recommendation  con- 


"p.  212ff.  supra. 

«°p-  863  supra. 

«^Ont.  1964.  c.  74,  s.  53(2). 

*'p.  440  and  p.  832  supra. 

^^'Ont.  1964,  c.  74,  s.  29(1). 

**Laskin,  Constitutional  Law,  3rd  ed.,  815. 


Chapter  119         1927 

tained  in  Report  Number  1  is  adopted  that  one  of  the 
minimum  rules  of  procedure  for  all  tribunals  should  be  that 
the  decision  of  the  tribunal  should  be  enforceable  in  the  same 
manner  as  an  order  of  an  ordinary  court  but  not  enforceable 
"as  such. "'^^ 

Penalties 

Every  person  who  contravenes  any  provision  of  the  Act 
or  regulations  or  a7iy  order  of  the  Board  is  guilty  of  an  offence 
and  may  be  subject  to  a  fine  of  not  less  than  $200  and  not 
more  than  $2,000  per  day  or  to  imprisonment  of  up  to  two 
years,  or  both.*^^  Tliis  is  a  harsh  penal  provision.  The  contra- 
vention of  an  order  of  the  Board  might  involve  a  very  trivial 
offence  but  nevertheless  the  penalty  is  $200  per  day.  On  the 
other  hand,  the  contravention  of  an  order  of  the  Board  may 
be  of  such  serious  consequences  that  a  penalty  of  more  than 
$2,000  per  day  would  be  warranted.  Penalties  should  be 
provided  in  accordance  with  the  seriousness  of  the  offence. 
There  should  be  no  minimum  penalty. 

The  Regulations  Act  does  not  apply  to  the  orders  of  the 
Board,^^  and  there  is  no  provision  in  the  Act  requiring 
service  of  the  Board's  orders  on  persons  affected.  Hence,  per- 
sons may  contravene  orders  of  the  Board  without  knowledge 
that  they  exist  and  be  subject  to  fines  of  not  less  than  $200  per 
day  over  a  long  period  of  time. 

We  have  had  occasion  to  comment  many  times  in  this 
Report  on  statutes  which  provide  penalties  for  breaches  of  the 
law  that  no  one  can  readily  find  in  any  published  document. 
It  is  true  that  the  Act  provides  that  "no  information  may  be 
laid  under  this  section  without  the  written  permission  of  the 
Minister  in  the  form  prescribed  in  the  regulations".^^ 
However,  this  is  not  an  answer  to  the  right  of  the  individual 
to  have  an  opportunity  to  know  what  the  law  is  before  he 
becomes  liable  to  a  prosecution  for  a  breach  of  it.  It  is  a 
violation  of  the  principles  of  the  Rule  of  Law  that  a  Minister 
should  have  power  to  authorize  the  prosecution  of  a  person 

*^p.  217  supra  and  see  pp.  1994-95  infra  as  to  enforcement  of  orders  of  the 

Ontario  Labour  Relations  Board. 
"Ont.  1964,  c.  74,  s.  34(1).  Italics  added. 
"'Ibid.,  s.  11(3). 
"^Ibid.,  s.  34(2)  and  see  O.  Reg.  323/64,  Form.  2. 


,1928  The  Ontario  Energy  Board 

and  that  he  may  be  convicted  for  breach  of  an  order  when  he 
could  have  no  means  of  knowing  it  existed. 

There  are  several  means  of  enforcing  the  Board's  orders 
without  making  a  failure  to  obey  an  order  an  ofEence. 
It  is  wrong  in  principle  to  create  offences  of  a  criminal  nature 
punishable  with  large  fines  for  failure  to  obey  an  order  of 
a  tribunal,  or  to  conform  to  regulations,  when  provision 
is  available  for  enforcement  of  orders  or  regulations  by  civil 
processes.  Such  means  have  been  provided  for  under  the 
statute  we  have  been  considering.  For  example,  an  order 
of  the  Board  requiring  a  person  to  pay  money  to  the  Board 
may  be  enforced  by  a  written  direction  from  the  Board  to  the 
sheriff; ^^  a  lien  against  lands  is  provided;^**  a  suspension 
of  a  licence  may  be  ordered  under  the  Energy  Act.^^  Pro- 
visions creating  offences  where  the  use  of  civil  processes 
would  be  adequate  and  proper  bring  the  criminal  law  and 
its  enforcement  into  disrepute.  The  penal  sections  of  the 
Act  should  be  completely  revised  to  create  penalties  only 
where  no  other  remedy  would  be  adequate. 

SUBORDINATE  LEGISLATIVE  POWER 

Three  sections  of  the  Act  provide  for  the  exercise  of 
subordinate  legislative  power.^^  Not  all  of  these  require 
comment. 

The  provision  that  the  Lieutenant  Governor  in  Council 
may  make  regulations  "limiting,  restricting  or  taking  away 
any  rights  to  use  or  consume  gas  without  charge  or  at  a 
reduced  rate"^^  gives  the  Lieutenant  Governor  in  Council 
a  wide  legislative  power. 

It  is  not  clear  what  rights  there  are  or  may  be  "to  use  or 
consume  gas  without  charge  or  at  a  reduced  rate." 

The  Act  provides: 

"Subject  to  the  regulations,  no  transmitter,  distributor  or 
storage  company  shall  sell  gas  or  charge  for  the  transmission, 
distribution  or  storage  of  gas  except  in  accordance  with  an 

^^Ihid.,  s.  29(3). 

^"Ihid.,  s.  29(4)(5). 

"Ont.  1964,  c.  27.  s.  10. 

"Ont.  1964,  c.  74,  s.  27(1),  as  re-enacted  by  Ont.  1965,  c.  83,  s.  2;  s.  35,  as 

amended  by  Ont.  1965,  c.  83,  s.  3;  and  s.  47(2). 
**Ihid.,  s.  35(l)(a). 


Chapter  119         1920 

order  of  the  Board,  which  is  not  bound  by  the  terms  of  any 
contract  entered  into  prior  to  the  day  upon  ^vhich  this  Act 
comes  into  force."'*"* 

What  "subject  to  the  regulations"  means  is  obscure.  In  this 
case  the  enactment  of  the  senior  legislative  body  is  subject 
to  what  the  body  exercising  subordinate  legislative  power 
may  do. 

There  do  not  appear  to  be  any  regulations  giving  a  right 
to  sell  gas  except  in  accordance  with  an  order  of  the  Board. 
Nor  is  there  power  given  in  the  Act  to  permit  a  sale 
without  charge. 

The  relevant  provision  in  the  regulations  reads: 

"2.  (1)  No  person  shall  furnish  or  supply  any  gas  without 
charge  or  at  a  reduced  rate  under  any  agreement  for 
which  the  supplying  of  gas  without  charge  or  at  a 
reduced  rate  is  a  consideration. 
(2)  Subsection  1  does  not  apply  to  any  agreement  or 
rencAval  thereof  made  before  the  1st  day  of  January, 
1955."»5 

It  would  therefore  appear  that  the  power  conferred  on  the 
Lieutenant  Governor  in  Council  is  to  make  a  regulation 
without  exempting  any  agreement  or  renewal  made  before 
the  1st  of  January,  1955.  This  is  a  power  to  confiscate  con- 
tractual rights  without  compensation. 

The  Act  should  specifically  provide  that  the  power  does 
not  apply  to  any  agreement  or  renewal  thereof  made  before 
the  1st  day  of  January,  1955  or  in  the  alternative,  provision 
should  be  made  for  compensation. 

The  power  to  prescribe  fees  payable  to  the  Board^® 
contravenes  the  principles  set  out  in  Report  Number  1  that 
the  purpose  for  which  fees  are  to  be  charged  should  be 
expressed  in  the  statute.®"^ 

EXPROPRIATION 

The  Board  now  has  power  to  determine  compensation 
for  rights  to  store  gas  conferred  under  an  order  of  the  Board.®* 

*^Ibid.,  s.  19(3). 

"O.  Re^.  323/64,  s.  2(1)(2). 

••Ont.  1964.  c.  74,  s.  35(l)(f). 

"p.  353  supra. 

"Ont.  1964,  c.  74,  s.  21,  as  amended  by  Ont.  1968-69,  c.  81,  s.  5. 


1930         The  Ontario  Eriergy  Board 

The  amendment  of  1968-69  implements  the  recommendation 
of  the  Ontario  Law  Reform  Commission. ^^ 

Where  land  or  rights  to  land  are  expropriated  pursuant 
to  the  provisions  of  the  Act,  the  compensation  if  not  agreed 
upon  shall  be  determined  by  the  Land  Compensation 
Board.^"" 

Relevant  provisions  in  the  Ontario  Energy  Board 
Act  are: 

"43.  Any  person  who  has  acquired  land  for  the  purposes  of 
his  line  or  station  by  agreement  with  the  OASTier  of  the 
land  shall  make  to  the  owner  of  the  land  due  compensa- 
tion for  any  damages  resulting  from  the  exercise  of  his 
rights  under  the  agreement,  and,  if  the  compensation  is 
not  agreed  upon  bv  them,  it  shall  be  determined  in  the 
manner  prescribed  by  section  41  ."^°^ 

"44.  Any  person,  his  servants  or  agents,  Avho, 

(a)  require  at  any  time  to  enter  upon  any  land  to  gain 
access  to  his  right  of  ^s^ay  established  under  this 
Part,  or  a  predecessor  thereof,  for  the  purpose  of 
maintaining,  repairing,  renewing  or  removing  his 
line  or  part  of  it; 

(b)  require  at  any  time  to  enter  upon  any  land  to  gain 
access  directly  to  his  pipe  line  or  any  part  thereof 
for  the  purpose  of  effecting  emergency  repairs  to 
his  pipe  line,  ha^•e  the  right  to  do  so  -^vithout  the 
consent  of  the  o^vner  of  the  land  so  entered,  and 
compensation  for  any  damages  resulting  from  the 
exercise  of  such  right,  if  not  agreed  upon  by  such 
person  and  the  o^vner  of  the  land,  shall  be  deter- 
mined in  the  manner  prescribed  by  section  41. "^"^ 

"39.  (10)  Any  person  to  -whom  the  Board  has  granted  leave 
to  construct  a  line  or  station,  his  officers,  em- 
ployees and  agents,  may  enter  into  or  upon  any 
land  at  the  intended  location  of  any  part  of  the 
line  or  station  and  may  make  such  surveys  and 
examinations  as  are  necessary  for  fixing  the  site 
of  the  line  or  station,  and,  failing  agreement,  any 
damages  resulting  therefrom  shall  be  determined 
in  the  manner  provided  in  section  41."^*^^ 


**Report  on  The  Basis  for  Compensation  on  Expropriation,  September  21, 

1967,  63. 
^""Ont.  1964,  c.  74,  s.  41  as  re-enacted  bv  Ont.  1968-69,  c.  81,  s.  10. 
^°Ubid.,  s.  43.  Italics  added. 
'°'Ibid.,  s.  44. 
'"'Ibid.,  s.  39(10). 


Chapterll9         1931 

Section  41  reads: 

"Where  compensation  for  damages  is  provided  for  in  this 
Part  and  is  not  agreed  upon,  tlie  procedures  set  out  in 
clauses  a  and  b  of  section  26  of  Tlie  Exjjropriatioyis  Act, 
196S-69  apply  to  the  determinaiion  of  such  compensation, 
and  such  compensation  shall  be  determined  imder  section 
27  of  that  Act  or  by  the  Land  Compensation  Board  estab- 
lished under  section  28  of  that  Act."^"^ 

Compensation  is  not  "determined"  under  section  27  of  the 
Expropriations  Act.  That  section  provides  for  negotiation 
only. 

It  is  to  be  observed  that  under  section  43  the  right  to 
compensation  arises  under  the  statute  but  there  has  been  no 
expropriation,  as  the  land  has  been  acquired  by  agreement. 
Under  sections  39  and  44  the  right  of  entry  without  the 
owner's  consent  is  acquired  under  the  statute  and  the  right  to 
compensation  for  damages  resulting  from  the  exercise  of  the 
right  arises  under  the  statute. 

The  procedure  appropriate  for  the  expropriation  of  land 
is  more  involved  than  is  necessary  where  the  nature  and 
extent  of  damages  caused  are  not  dissimilar  to  those  that  may 
be  caused  by  the  Hydro-Electric  Power  Commission  when 
it  exercises  its  power  to  enter  land  to  repair  lines. 

Simple  procedures  should  be  provided  to  fix  compen- 
sation w'here  small  claims  are  made  with  a  right  of  appeal 
to  the  Land  Compensation  Board.  Such  procedure  should 
apply  to  small  claims  arising  out  of  the  exercise  of  powers 
of  the  nature  w^e  have  been  discussing.  ^"^ 

RIGHTS  OF  APPEAL 

Rehearing 

"The  Board  may  at  any  time  and  from  time  to  time 
rehear  or  review  any  application  before  deciding  it,  and  may 
by  order  rescind  or  vary  any  order  made  by  it."^*'*'  There  are 
no  limitations  on  this  power  to  rehear  in  the  statute  but 
there  may  be  by  implication. ^^^ 

^°*Ihid.,  s.  41  as  re-enacted  by  Ont.  1968-69,  c.  81,  s.  10. 

^°'See  recommendation  re   Hydro-Electric  Power  Commission,   Chapter   114, 

p.  1817  supra. 
"•Ont.  1964,  c.  74,  s.  30. 
"'See  Regina  v.  Ont.  Labour  Relations  Bd.  [1964]  1  O.R.  173.   We  discuss  a 

similar  provision  in  the  Ontario  Municipal  Board  Act,  Chapter  125,  pp. 

2022-23  injra. 


1932  The  Ontario  Energy  Board 

Where  the  Board  exercises  its  judicial  powers  there 
should  be  no  power  to  grant  a  rehearing  but  wide  rights  of 
appeal  should  be  given.  It  should  be  made  clear  that  no 
power  is  given  to  grant  a  rehearing  of  a  rehearing  except 
in  exceptional  and  specified  circumstances. 

Appeal  by  Way  of  Stated  Case 

The  Board  may  at  the  request  of  the  Lieutenant 
Governor  in  Council  or  of  its  own  motion  or  upon  the 
application  of  a  party  to  proceedings  before  it  state  a  case 
in  writing  for  the  opinion  of  the  Court  of  Appeal  upon  any 
question  that,  in  the  opinion  of  the  Board,  is  a  question 
of  law.^*^^  When  a  case  is  stated  the  Court  of  Appeal  shall 
determine  the  stated  case  and  remit  it  to  the  Board  with  the 
opinion  of  the  Court  thereon."^ 

This  provision  is  a  good  one.  It  gives  the  Board  an 
opportunity  to  have  questions  of  law  resolved  before  the 
determination  of  the  proceedings  so  that  it  may  proceed  in 
accordance  with  the  opinion  of  the  Court  of  Appeal,  The 
right  to  appeal  is  dependent  on  whether  the  Board  forms  an 
opinion  that  there  is  a  question  of  law.  Provision  should  be 
made  that  if  the  Board  refuses  to  state  a  case  on  a  question  of 
law  a  party  to  the  proceedings  should  have  a  right  to  apply  to 
the  Court  of  Appeal  for  an  order  directing  it  to  do  so. 

The  Act  does  not  require  the  Board  to  proceed  in 
accordance  with  the  opinion  of  the  Court  of  Appeal.  It  should 
be  required  to  do  so. 

We  discuss  an  identical  provision  in  the  Ontario  Munici- 
pal Board  Act  and  what  we  say  there  and  the  recommenda- 
tions there  made  apply  with  equal  force  to  the  provision 
of  the  Ontario  Energy  Board  Act.^^° 

Appeal  to  the  Court  of  Appeal 

Except  in  the  case  of  an  order  fixing  compensation  for 
storage  of  gas  and  damage  necessarily  resulting  from  the 
exercise  of  authority  to  store  gas  an  appeal  lies  to  the  Court 
of  Appeal  on  any  question  of  law  or  jurisdiction  but  only 


Ont.  1964,  c.  74,  s.  31(1). 

Ihid.,  s.  31(2). 

See  Chapter  125,  pp.  2035-36  infra. 


Chapter  119  1933 

with  leave  of  the  Court  obtained  within  one  month  from  the 
making  of  the  order.  The  Court  has  power  to  extend  the 
time  in  special  circumstances."' 

The  Supreme  Court  may  fix  the  costs  and  fees  to  be  taxed 
and  paid  on  such  appeals  and  may  make  rules  of  practice 
applicable  thereto.  Until  such  rules  are  made  the  Rules 
of  Practice  of  the  Supreme  Court  apply. "- 

Where  the  Board  fixes  compensation  for  the  storage 
of  gas  or  damages  resulting  from  the  exercise  of  authority 
to  store  gas  an  appeal  lies  to  the  Court  of  Appeal  with- 
out leave. "^ 

Orders  made  in  the  exercise  of  the  rate-making  powers 
of  the  Board  take  effect  notwithstanding  that  an  appeal  is 
pending."^  This  provision  would  seem  to  be  an  arbitrary 
one.  Either  the  Board  or  the  Court  of  Appeal  should  have 
power  to  suspend  a  rate-making  order  pending  an  appeal. 
If  an  important  question  of  law  or  jurisdiction  is  raised 
it  would  appear  to  be  undesirable  that  there  should  be 
a  possibility  of  rates  being  collected  on  the  basis  of  an 
illegal  order. 

Appeal  to  the  Lieutenant  Governor  in  Council 

"33(1).  Upon  the  petition  of  any  party  or  person  interested, 
filed  with  the  clerk  of  the  Executive  Council  ^vithin  sixty 
days  after  the  date  of  any  order  or  decision  of  the  Board,  the 
Lieutenant  Governor  in  Council  may, 

(a)  confirm,  vary  or  rescind  the  whole  or  any  part  of  such 
order  or  decision;  or 

(b)  require  the  Board  to  hold  a  new  public  hearing  of  the 
whole  or  any  part  of  the  application  to  the  Board  upon 
which  such  order  or  decision  of  the  Board  was  made, 

and  the  decision  of  the  Board  after  the  public  hearing 
ordered  under  clause  b  is  not  subject  to  petition  under  this 
section. "^^^ 

This  right  of  appeal  would  appear  to  be  too  broad  in  one 
sense  and  may  be  too  narrow-  in  another  as  we  shall  see  later. 

"^Ont.  1964,  c.  74,  s.  32(1). 

^^^Ibid.,  s.  32(4).  The  Supreme  Court  is  not  an  appropriate  body  to  make 

rules. 
^^''Ibid.,  s.  21,  as  amended  by  Ont.  1968-69,  c.  81,  s.  5. 
"*/&/rf.,  s.  32(6). 
"=/&iU,  s.  33(1). 


1934         The  Ontario  Energy  Board 

In  the  first  place  it  is  from  any  "order  or  decision"  of  the 
Board.  The  Board  formally  exercises  its  powers  by  order  and 
all  orders  made  by  the  Board  shall  be  signed  by  the  chairman, 
vice-chairman,  the  secretary  or  assistant  secretary  and  sealed/^*^ 
Decisions  are  quite  different.  Rulings  on  evidence  would  be 
decisions.  Likewise,  fixing  the  date  tor  a  hearing  would  be  a 
decision.  There  should  be  no  right  of  appeal  to  the  Lieu- 
tenant Governor  in  Council  in  matters  of  an  interlocutory 
nature. 

A  broader  question  arises  with  respect  to  the  right  of 
appeal  from  what  may  be  called  orders  of  the  Board.  The 
Board  makes  certain  orders  which  are  in  the  nature  of  policy 
decisions.  Rate-making  orders  come  within  this  class.  The 
right  of  appeal  with  respect  to  such  orders  should  be  to 
a  political  authority  and  the  Lieutenant  Governor  in  Council 
is  the  proper  authority. 

On  the  other  hand,  it  is  incongruous  that  where  an 
appeal  has  been  taken  to  the  Court  of  Appeal  on  a  question 
of  law  or  jurisdiction  and  the  Court  of  Appeal  has  given 
its  opinion  and  the  Board  has  made  an  order  accordingly  that 
there  should  be  a  right  of  appeal  to  the  Lieutenant  Governor 
in  Council.  The  statute  confers  on  the  Lieutenant  Governor 
in  Council  a  right  to  reverse  the  Court  of  Appeal. 

The  right  of  appeal  to  the  Lieutenant  Governor  in 
Council  should  be  confined  to  matters  not  involving 
questions  of  law  or  jurisdiction. 

It  is  also  incongruous  that  when  a  matter  comes  before 
the  Board  there  must  be  a  hearing,  but  on  an  appeal  to  the 
Lieutenant  Governor  in  Council  there  may  be  a  decision 
reversing  the  order  of  the  Board  without  a  hearing.  Definite 
rules  of  procedure  should  be  provided  applicable  to  appeals 
to  the  Lieutenant  Governor  in  Council.  These  should  pro- 
vide for  a  hearing  for  the  parties  affected  by  a  decision 
of  the  Board. 

It  is  not  clear  as  to  whether  the  rights  of  appeal  which  we 
have  been  discussing  apply  to  orders  made  under  Part  II 
of  the  Act  relating  to  the  authorization  of  the  construction 
of  pipe  lines  and  the  exercise  of  powers  of  expropriation 
in  connection  therewith. 

""/feiU,  s.  11(2). 


Chapter  119         1935 

Under  section  45  the  decision  of  the  Board  on  any  appli- 
cation to  it  under  Part  II  is  stated  to  be  final  and  conclu- 
sive."'^ The  question  arises  with  respect  to  orders  or  decisions 
made  under  Part  II.  docs  section  45  override  the  power  pjivcn 
to  the  Board  to  rehear  or  review  any  application  and  to 
rescind  or  vary  an  order  made  by  the  Board, "^  or  the  right 
of  appeal  to  the  Court  of  Appeal."^  or  the  right  to  petition 
the  Lieutenant  Governor  in  Council?^-''  The  provisions  we 
have  just  referred  to  are  in  broad  language  and  apply  to 
"any  order  of  the  Board." 

If  it  is  the  intention  of  the  statute  to  give  the  Board  final 
and  conclusive  power  with  respect  to  policy  matters  coming 
within  Part  II.  e.g.  whether  a  pipe  line  should  be  constructed 
or  in  what  area  it  should  be  constructed,  this  is  wrong  in 
principle,  since  these  are  not  legal  decisions  but  political 
decisions  and  the  right  of  appeal  to  the  Lieutenant  Governor 
in  Council  should  be  maintained.  If  it  is  intended  that  the 
finality  provisions  should  limit  the  right  of  appeal  to  the 
courts  on  questions  of  law  and  jurisdiction,  it  is  likewise 
wrong  in  principle. 

In  a  matter  that  came  before  the  Board  in  1967  the 
Lieutenant  Governor  in  Council  entertained  a  petition  to 
vary  an  order  of  the  Board  authorizing  the  expropriation  for 
the  purposes  of  a  pipe  line  in  the  Township  of  North 
Dumfries  in  the  County  of  Waterloo  in  spite  of  the  final  and 
conclusive  provisions  of  section  45.  In  doing  so  the  Executive 
Council  was  apparently  taking  a  view  similar  to  that  taken 
by  the  Court  of  Appeal  of  British  Columbia  in  Nanaimo 
Commiinity  Hotel  v.  Board  of  Referees^^^  and  Oak  Bay  v. 
Victoria'^^^  w^here  finality  clauses  of  the  sort  we  are  dis- 
cussing were  held  not  to  oust  rights  of  appeal  otherwise  given 
in  the  relevant  Act. 

The  result  would  appear  to  be  that  the  only  value  the 
section  has  is  to  promote  legal  contention  in  the  courts. 
It  should,  therefore,  be  repealed. 


"V&/rf.,  s.  45. 
"•7&irf.,  s.  30. 
"•7b/rf.,  s.  32. 
"V6?U,  s.  33. 

121 


[1945]  3  D.L.R.  225. 
[1941]  3  D.L.R.  680. 


1936         The  Ontario  Energy  Board 

Powers  Exercised  Under  the  Municipal  Franchises  Act 

Under  the  Municipal  Franchises  Act^^^  the  Board  exer- 
cises power  to  grant  certificates  of  convenience  and  necessity 
for  the  supply  of  gas/^^  to  approve  the  terms  of  municipal 
by-laws  for  submission  to  the  electors  concerning  the  supply 
of  gas  and  to  renew  or  extend  the  term  of  a  right  to  operate 
works  for  distribution  of  gas  to  a  municipal  corporation. ^^^ 

A  right  of  appeal  with  leave  of  a  judge  of  the  Court 
of  Appeal  lies  from  a  certificate  or  order  of  the  Board  made 
under  the  Act  on  any  question  of  law  or  fact  if  the  application 
for  leave  to  appeal  is  made  within  fifteen  days  from  the 
certificate  or  order.^^^ 

This  provision  is  quite  different  from  the  provisions  for 
appeal  when  the  Board  exercises  its  powers  under  the  Ontario 
Energy  Board  Act.  Under  that  Act,  with  one  exception,  the 
right  of  appeal  lies  only  with  leave  of  the  Court  of  Appeal 
obtained  within  one  month  of  the  making  of  the  order  and  is 
confined  to  questions  of  law  or  jurisdiction. 

In  Union  Gas  Co.  of  Canada  Ltd.  v.  Sydenham  Gas  and 
Petroleum  Co.  Ltd.^-'^  the  Supreme  Court  of  Canada  held  that 
the  Court  of  Appeal  could  not  substitute  its  judgment  for 
that  of  the  Ontario  Fuel  Board  as  to  whether  a  certificate 
of  public  convenience  and  necessity  should  issue.  The  Court 
considered  that  the  decision  was  an  administrative  one  and 
not  a  finding  of  fact.  In  Report  Number  1  we  recom- 
mended that  the  right  of  appeal  to  the  courts  should  be 
confined  to  questions  of  law  and  jurisdiction  and  that  there 
should  be  no  appeal  to  the  courts  from  an  administrative 
decision.  Appeals  from  such  decisions  should  lie  to  a  Minister 
or  a  committee  of  the  Lieutenant  Governor  in  Council. ^^^ 

Since  a  right  of  appeal  is  given  from  orders  of  the  Board 
under  section  32  of  the  Ontario  Energy  Board  Act,  section  10 
of  the  Municipal  Franchises  Act  should  be  repealed. 

'"R.S.O.  I960,  c.  255. 

"V&zU,  s.  8. 

""Z&jW.,  s.  9a,  as  enacted  bv  Ont.  1968-69,  c.  76,  s.  1. 

"V&?f/.,  s.  10.  as  amended  by  Ont.  1968-69,  c.  76.  s.  2. 

^"[1957]  S.C.R.  185. 

'"p.  234  supra. 


Chapter  J 19         1937 

Powers  Exercised  Under  the  Public  Utilities  Act 

After  they  have  been  submitted  to  and  approved  by  the 
Lieutenant  Governor  in  Council  by-laws  may  be  passed  by 
councils  of  municipalities  prohibiting  the  sale  or  distribution 
within  the  municipality  of  natural  or  manufactured  gas 
containing  sulphuretted  hydrogen.^-"  The  Board  on  proof 
to  its  satisfaction  that  a  company  has  contravened  such  a 
by-law  may  make  a  declaration  to  that  effect  and  the  fact 
of  such  contravention  or  neglect  or  refusal  is  thereby  con- 
clusively established.^^" 

A  declaration  made  in  the  exercise  of  this  power  may 
have  a  wide  effect  on  a  company  holding  a  franchise  and 
investors  owning  securities  issued  by  the  company.  There  is 
no  procedure  laid  down  for  a  hearing  other  than  that  which 
may  be  implied  from  the  provisions  of  the  Ontario  Energy 
Board  Act  and  the  regulations  made  thereunder. 

It  is  by  no  means  clear  that  there  is  a  right  of  appeal 
under  section  32  of  the  Ontario  Energy  Board  Act.  As  we 
have  stated  earlier  a  right  of  appeal  is  stated  to  lie  from  "an 
order  of  the  Board,"  But  the  Board  does  not  make  an  order 
under  this  provision  of  the  Public  Utilities  Act.  It  makes  a 
declaration  and  the  results  flow  from  the  provisions  of  the 
statute.  When  a  declaration  is  made  a  company's  franchise 
".  .  .  ipso  facto  comes  to  an  end  .  .  .".^^^ 

In  making  a  declaration  under  the  Act  the  Board  is 
acting  in  a  purely  judicial  capacity.  It  must  find  Avhether  the 
holder  of  the  franchise  has  contravened  the  by-law  or  has 
neglected  or  refused  to  furnish  a  supply  of  gas  sufficient  for  all 
public  and  private  purposes  which  does  not  contain  sul- 
phuretted hydrogen.  There  is  no  question  of  policy  involved. 
There  should  be  a  clear  right  of  appeal  from  a  declaration 
made  by  the  Board  in  such  case,  without  leave. 

The  situation  is  quite  different  where  the  Board  has 
acted  under  section  66  (5).  Under  this  provision  on  the 
application  of  a  municipal  corporation  "upon  proof  of  the 
sale  or  distribution  of  natural  or  manufactured  gas  con- 
taining sulphuretted  hydrogen  within  the  municipality  after 

^==«R.S.O.  1960,  c.  335,  s.  66(1). 
'^°Ibid.,  s.  66(3). 
'''Ibid.,  s.  66(2). 


1938         The  Ontario  Energy  Board 

the  passing  of  a  by-law  prohibiting  the  same,  an  order  shall 
be  made  [by  the  Board]  for  the  removal  by  the  company  .  .  . 
of  its  conduits,  mains,  pipes  and  works.  .  .  ."  Under  this 
clause  an  appeal  would  clearly  lie  to  the  Court  of  Appeal 
with  leave  under  section  32  of  the  Ontario  Energy  Board  Act 
because  the  Board  has  acted  by  order. 

Powers  Exercised  Under  the  Assessment  Act^^^ 

The  Board  is  empowered  to  decide  all  disputes  as  to 
whether  or  not  a  gas  pipe  line  is  a  transmission  line  within 
the  meaning  of  the  Act  and  its  decision  is  final.  Are  the 
words  "is  final"  intended  to  destroy  any  right  of  appeal  that 
would  otherwise  exist  or  are  they  intended  to  mean  that  the 
decision  of  the  Board  "is  final  and  binding  upon  all  the  world 
saving  only  that  the  right  of  appeal  is  not  interfered  with?"^^^ 
The  right  of  appeal  should  clearly  lie. 

Summary  of  Appeal  Procedures 

1 .  An  appeal  lies  by  way  of  stated  case  on  any  question  that 
in  the  opinion  of  the  Board  is  a  question  of  law.^^^ 

2.  Except  in  the  case  of  an  order  fixing  compensation  for 
storage  of  gas  and  damage  necessarily  resulting  from  the 
exercise  of  authority  to  store  gas  an  appeal  lies  to  the 
Court  of  Appeal  from  any  order  of  the  Board  upon  leave 
to  appeal  being  obtained  from  the  Court  within  one 
month  of  the  making  of  an  order  upon  any  question  of 
law  or  jurisdiction,  with  power  in  the  Court  to  extend 
the  time  under  the  Ontario  Energy  Board  Act.^^^ 

3.  In  the  case  of  an  order  fixing  compensation  for  storage 
of  gas  or  damage  resulting  from  the  exercise  of  authority 
to  store  gas  an  appeal  lies  to  the  Court  of  Appeal  with- 
out leave. ^^^ 

4.  An  appeal  lies  to  the  Lieutenant  Governor  in  Council 
from  any  order  or  decision  of  the  Board  within  60  days 


^^^Ont.  1968-69,  c.  6,  s.  33(3). 

""See  Oak  Bay  v.   Victoria  [1941]  3  D.L.R.  680  at  p.  698  and  Nanaimo  v. 

Board  of  Referees  [1945]  3  D.L.R.  225  at  p.  248. 
"*Ont.  1964,  c.  74,  s.  31. 
^"'Ibid.,  s.  32. 
^'Hhid.,  s.  21  as  amended  by  Ont.  1968-69,  c.  81,  s.  5. 


Chapter  119         1939 

of  the  date  of  the  order  or  decision  under  the  Ontario 
Energy  Board  Act.^^^ 

5.  An  appeal  lies  to  the  Court  of  Appeal  on  any  question 
of  law  or  fact  from  a  certificate  of  public  convenience 
and  necessity  granted  under  llic  Municipal  Franchises 
Act  upon  obtaining  leave  of  a  judge  of  the  Court  of 
Appeal  if  an  application  is  made  within  15  days  of  the 
date  of  the  order.^^^ 

6.  No  appeal  appears  to  lie  from  a  refusal  to  grant  a  cer- 
tificate unless  such  refusal  can  be  considered  to  be  "an 
order  of  the  Board"  so  as  to  bring  it  within  the  appeal 
provisions  of  section  32(1)  of  the  Ontario  Energy 
Board  Act. 

7.  Where  the  Board  makes  an  order  approving  or  refusing 
to  approve  of  a  by-law  granting  the  right  to  construct 
or  operate  works  for  the  distribution  of  gas,  etc.  under 
the  provisions  of  section  9  of  the  Municipal  Franchises 
Act  an  appeal  lies  to  the  Court  of  Appeal  upon  any 
question  of  law  or  fact  with  leave  of  a  judge  thereof 
if  application  for  leave  to  appeal  is  made  within  1 5  days 
of  the  date  of  the  order.  In  this  case  the  Court  has  no 
power  to  extend  the  time.^^^ 

8.  Where  the  Board  makes  an  order  renewing  or  extending 
the  term  of  a  right  to  operate  works  for  the  distribution 
or  supply  of  gas  in  a  municipality  or  refuses  to  make 
such  an  order  an  appeal  lies  to  the  Court  of  Appeal  upon 
any  question  of  law  or  fact  with  leave  of  a  judge  thereof 
if  application  for  leave  to  appeal  is  made  within  1 5  days 
of  the  date  of  the  order.  In  this  case  the  Court  has  no 
power  to  extend  the  time.^^" 

9.  Where  the  Board  makes  a  declaration  under  section 
66(3)  of  the  Public  Utilities  Act  that  a  company  has  con- 
travened the  provisions  of  a  by-law,  forbidding  it  to 
supply  gas  containing  sulphuretted  hydrogen  any  right 
of  appeal  is  doubtful. 


"Vb/rf.,  s.  33(1). 

'"'R  S.O.  1960,  c.  255,  s.  10,  as  amended  bv  Ont.  1968-69.  c.  76.  s.  2. 

"«/6?V/..  s.  10,  as  enacted  by  Ont.  1968-69,  c.  76.  s.  2. 

^*°Ib{d.,  s.  10,  as  enacted  by  Ont.  1968-69,  c.  76,  s.  2. 


1940         The  Ontario  Energy  Board 

10.  Where  the  Board  has  made  an  order  under  section  66(5) 
of  the  Public  Utilities  Act  for  the  removal  of  gas  lines 
upon  proof  that  the  distributor  has  contravened  a  by-law 
forbidding  the  sale  or  distribution  of  gas  containing  sul- 
phuretted hydrogen  there  is  a  right  of  appeal  under  sec- 
tion 32  of  the  Ontario  Energy  Board  Act  with  leave  of 
the  Court  of  Appeal  if  obtained  within  one  month  of  the 
making  of  the  order  and  in  such  case  the  Court  of  Appeal 
may  extend  the  time. 

1 1 .  Where  the  Board  acts  to  settle  a  dispute  under  section 
33(3)  of  the  Assessment  Act,  1968-69  concerning  a  dis- 
pute as  to  whether  a  pipe  line  is  a  transmission  line  the 
decision  of  the  Board  is  stated  to  be  "final"  but  an  appeal 
may  lie  to  the  Court  of  Appeal  with  leave  of  the  Court 
if  obtained  within  one  month  from  the  making  of  the 
order  under  section  32  of  the  Ontario  Energy  Board  Act. 

This  summary  demonstrates  the  great  confusion  that 
exists  respecting  the  rights  of  appeal  given  under  the  differ- 
ent statutes  concerning  orders,  decisions,  certificates  and  dec- 
larations of  the  Board.  Added  to  this  confusion  is  the  pro- 
vision of  the  Ontario  Energy  Board  Act  that  "in  the  event  of 
conflict  between  this  Act  and  any  other  general  or  special  Act, 
this  Act  prevails. "^"^^ 

It  is  not  clear  that  the  provisions  of  other  statutes  con- 
cerning appeals  are  necessarily  in  conflict  in  all  respects 
with  the  provisions  of  the  Ontario  Energy  Board  Act. 
Some  may  be  in  conflict  and  some  may  be  only  in  addition 
thereto,  e.g.  appeals  as  to  facts  under  the  Municipal  Fran- 
chises Act.  In  addition,  where  the  Board  acts  by  certificate  or 
declaration  under  any  other  Act  the  right  of  appeal  may  be 
broader  under  that  Act  depending  on  the  interpretation  of 
"order"  as  used  in  section  32  of  the  Ontario  Energy  Board 
Act.  But  the  difficulty  does  not  end  there.  Section  10  of  the 
Municipal  Franchises  Act  was  amended  in  1969,^^^  with  re- 
spect to  the  powers  of  the  Board  and  rights  of  appeal  with  the 
result  that  the  most  recent  legislation  would  prevail. ^^^ 

"^Ont.  1964,  c.  74,  s.  56(1). 
^"Ont.  1968-69,  c.  76,  s.  2. 

'"£//en  Street  Estates  v.  Minister  of  Health,  [1934]  1  K.B.  590.  See  reference 
Chapter  122,  the  Ontario  Hospital  Services  Commission,  pp.  1972-73  infra. 


Chapter  1 19         1941 

The  right  of  appeal  to  the  Court  of  Appeal  from  orders, 
certificates  or  declarations  of  the  Board  made  under  any  sta- 
tute should  be  luiiform. 

1  here  should  be  no  rights  of  appeal  which  would  give 
the  Lieutenant  Governor  in  Council  power  to  override  a 
decision  of  the  Court  of  Appeal. 

LICENSING 

The  Energy  Act/^*  and  the  Ontario  Energy  Board  Act 
must  be  read  together  when  considering  the  licensing  powers 
of  the  Board.  The  following  provisions  of  the  Energy  Act 
are  relevant: 

"5(1).  No  person  shall, 

(a)  conduct  a  geophysical  or  geochemical  exploration  for  gas 
or  oil;  or 

(b)  lease  gas  or  oil  rights  from  an  owner  other  than  the 
Crown;  or 

(c)  produce  gas  or  oil 

unless  he  is  the  holder  of  a  licence  for  such  purpose.  .  ."^*^ 
"5(2).  No  person  shall  operate  a  machine  for  boring,  drill- 
ing,  deepening,   or   plugging   wells   unless    the   machine   is 
licensed.  "^^*^ 

"5(3).  No  person  shall  bore,  drill  or  deepen  a  well  unless  he 
is  the  holder  of  a  permit  for  such  purposes. "^^" 
"6(1).  Subject  to  the  regulations,  no  person  shall  repressure, 
maintain  pressure  in  or  flood  any  gas  or  oil  horizon  by  the 
injection  of  gas,  oil,  water  or  other  substance  unless  he  is 
the  holder  of  a  permit  for  such  purpose."  .  .  .  (This  does 
not  apply  to  a  person  who  injects  gas  for  storage  in  a 
designated  gas  storage  area.)^"*^ 

"6(2).  If  in  the  opinion  of  the  Minister,  the  special  circum- 
stances of  a  case  so  require,  he  may  refer  an  application  for  a 
permit  to  repressure,  maintain  pressure  in  or  flood  a  gas  or 
oil  horizon  to  the  Board,  and  the  Board  shall  report  to  the 
Minister  thereon,  but,  where,  in  the  opinion  of  the  Board, 
the  special  circumstances  of  the  case  so  require,  the  Board 
shall  hold  a  hearing  before  reporting  to  the  Minister." ^^'* 


^"Ont.  1964,  c.  27. 

^*^Ibid.,  s.  5(1). 

^'"Ibid.,  s.  5(2)  as  amended  by  Ont.  1965,  c.  37,  s.  2. 

^"Ibid.,  s.  5(3). 

"«/&!d.,  s.  6(1). 

""/fttrf.,  s.  6(2). 


1942         The  Ontario  Energy  Board 

"7(1).  No  person  shall, 

(a)  transmit  a  hydrocarbon; 

(b)  distribute  gas; 

(c)  distribute  fuel  oil  by  pipe  line; 

(d)  transfer  propane  to  a  pressure  vessel;  or 

(e)  transport  propane, 

unless  he  is  the  holder  of  a  licence  for  such  purpose  .  .  ."^^*^ 

"7(3).  No  person  shall  carry  on  the  business  of  installing, 
repairing,  servicing  or  removing  appliances  or  any  class  or 
classes  thereof  unless  he  is  registered  for  the  purpose." ^^^ 

"7(4).  No  person  shall  install,  repair,  service  or  remove  or 
permit  or  cause  to  be  installed,  repaired,  serviced  or  removed 
an  appliance  unless  the  installation,  repair,  service  or  removal 
is  done  by  or  under  the  supervision  of  a  person  who  is 
licensed  for  such  purpose. "^^" 

The  Minister  shall  refer  every  application  for  a  permit 
to  bore,  drill  or  deepen  a  well  in  a  designated  gas  storage 
area  to  the  Board  and  the  Board  shall  report  to  the  Minister 
thereon.  Where  the  applicant  does  not  have  authority  to 
store  gas  in  the  area  or  w^here  in  the  opinion  of  the  Board  the 
special  circumstances  so  require  the  Board  shall  hold  a  hear- 
ing before  reporting.  The  Minister  shall  grant  or  refuse  to 
grant  the  permit  in  accordance  with  the  report. ^^^  There  does 
not  seem  to  be  any  useful  purpose  in  having  the  application 
made  to  the  Minister  in  the  first  instance  since  he  must  act  in 
accordance  wath  the  report  of  the  Board.  The  application 
should  be  made  directly  to  the  Board. 

A  copy  of  the  report  shall  be  sent  to  the  parties  within 
ten  days  after  submitting  it  to  the  Minister  and  it  shall  be 
deemed  to  be  a  decision  for  the  purpose  of  giving  to  the 
parties  affected  a  right  of  appeal  to  the  Lieutenant  Governor 
in  Council  under  section  33  of  the  Ontario  Energy  Board 
Act.^^^ 

Where  an  application  is  made  under  section  6  of  the 
Energy  Act  for  a  permit  to  repressure,  etc.  by  the  injection  of 
gas,  etc.  the  Minister  may  refer  the  application  to  the  Board 

^^°Ibid.,  s.  7(1)  as  re-enacted  by  Ont.  1967,  c.  25,  s.  2. 
^^^Ibid.,  s.  7(3)  as  re-enacted  by  Ont.  1967,  c.  25,  s.  2. 
^^Ubid.,  s.  7(4)  as  re-enacted  by  Ont.  1967,  c.  25,  s.  2. 
"'The  Ontario  Energy  Board  Act,  1964,  Ont.  1964,  c.  74,  s.  23. 
"*/6id.,  s.  23(2)  as  enacted  by  Ont.  1968-69,  c.  81,  s.  6. 


Chapter  119         1943 

and  the  Board  shall  report  to  the  Minister.  Where  in  the 
opinion  of  the  Board  the  circumstances  of  the  case  so  require 
the  Board  shall  hold  a  hearing  before  reporting  to  the 
Minister.  ^^^ 

Under  this  section,  unlike  the  provisions  of  section  23  of 
the  Ontario  Energy  Board  Act,  the  Minister  is  not  required 
to  refer  the  application  to  the  Board.  It  is  difficult  to  under- 
stand why  an  application  under  this  section  may  or  may  not 
be  referred  to  the  Board  while  an  application  under  section 
23  of  the  Ontario  Energy  Board  Act  must  be  referred  to  the 
Board. 

Unless  there  is  some  reason  that  is  not  disclosed  in  the 
statute  the  applicant  should  have  a  right  to  apply  directly  to 
the  Board  for  permits  under  this  section  and  the  Board  should 
be  required  to  hold  a  hearing  before  making  an  adverse 
report. 

There  is  no  provision  that  the  report  shall  be  sent  to  the 
applicant  or  that  it  should  be  deemed  to  be  a  decision  of  the 
Board  so  as  to  give  a  right  of  appeal  to  the  Lieutenant  Gover- 
nor in  Council  under  section  33.  There  should  be  such 
provisions. 

The  powers  exercised  by  the  Board  with  respect  to  the 
injection  and  storage  of  gas  or  removal  of  gas  in  a  designated 
area,  under  section  21  of  the  Ontario  Energy  Board  Act,  are 
not  ordinary  licensing  powers  where  general  standards  should 
be  laid  down  concerning  entitlement  to  an  authorization. 
The  powers  are  conferred  for  the  purpose  of  regulating  and 
conserving  storage  areas.  The  provisions  of  the  Act  in  this 
regard  substantially  comply  with  our  recommendations  in 
Report  Number  \}^^ 

Where  licences  or  permits  are  required  or  registration  is 
required,  subject  to  section  6(2)  of  the  Energy  Act  and  to 
"section  21  of  The  Ontario  Energy  Board  Act,  1964,  the  Min- 
ister may,  in  his  discretion,  with  or  without  an  examination 
of  the  applicant,  grant  or  refuse  to  grant  a  licence  or  permit, 
or  effect  or  refuse  to  effect  a  registration,  and  he  may,  in  grant- 
ing a  licence  or  permit  or  effecting  a  registration,  impose  such 
terms  and  conditions  as  he  in  his  discretion  deems  proper, 


Ont.  1964,  c.  27,  s.  6(2). 
pp.  1132-34  supra. 


1 944         The  Ontario  Energy  Board 

and,  before  granting  a  licence  or  permit,  or  effecting  a  regis- 
tration, he  may  refer  the  matter  to  the  Board,  and  the  Board 
shall  hold  a  hearing  and  report  to  him  thereon  with  its 
recommendations. "^^^  This  section  fails  to  provide  minimum 
proper  safeguards  for  the  rights  of  the  individual: 

(1)  the  power  to  grant  or  refuse  is  discretionary; 

(2)  there  are  no  standards  for  the  exercise  of  the  discretion; 

(3)  the  Minister  may  refuse  a  licence,  permit,  or  registra- 
tion without  a  hearing; 

(4)  the  Minister  may  impose  terms  and  conditions  as  he 
in  his  discretion  deems  proper; 

(5)  before  "granting"  a  licence,  etc.,  the  Minister  may  refer 
the  matter  to  the  Board  but  he  may  refuse  the  licence  with- 
out referring  the  matter  to  the  Board. 

These  are  harsh  provisions.  They  could  give  rise  to  arbitrary 
action  with  no  right  of  appeal  to  a  higher  authority.  Standards 
should  be  provided  for  the  exercise  of  the  discretion.  Before 
refusing  a  licence,  permit,  or  registration  the  Minister  should 
be  required  to  grant  the  applicant  a  hearing  either  by  him  or 
before  the  Board.  There  should  be  a  right  of  appeal  to  the 
Lieutenant  Governor  in  Council  against  the  refusal  to  grant  a 
licence  and  with  respect  to  the  terms  and  conditions  imposed. 
The  provisions  of  the  Energy  Act  governing  renewals  of 
licences,  permits  and  registrations  read  as  follows: 

"The  Minister  may  grant  or  refuse  to  grant  a  renewal  of  a 
licence  in  whole  or  in  part,  a  renewal  of  a  permit  in  whole 
or  in  part,  or  effect  or  refuse  to  effect  a  renewal  of  a  registration 
in  whole  or  in  part,  and  he  may,  in  granting  a  renewal  of  a 
licence  or  permit  or  in  effecting  a  renewal  of  a  registration, 
impose  such  terms  and  conditions  as  he  in  his  discretion 
deems  proper,  but,  where  he  refuses  to  grant  a  renewal  of  a 
licence  or  permit  in  whole  or  in  part,  or  to  effect  a  renewal 
of  a  registration  in  whole  or  in  part,  or,  in  granting  a  renewal 
of  a  licence  or  permit  or  effecting  a  renewal  of  a  registration, 
imposes  any  term  or  condition  that  was  not  previously  im- 
posed, he  shall,  if  requested  by  the  applicant,  refer  the  matter 
to  the  Board,  and  the  Board  shall  hold  a  hearing  and  report 


^Ont.  1964,  c.  27,  s.  10(1). 


Chapter  119         1945 

to  him  thereon,  and  he  shall  grant  or  refuse  to  grant  or  etfec t 
or  refuse  to  effe(  t  the  renewal  in  accordance  with  the  re- 
port."^'*'' 

Under  these  provisions  the  applicant  for  renewal  has  a 
right  to  require  a  hearing  by  the  Board  before  his  application 
is  refused  or  new  terms  and  conditions  are  imposed.  How- 
ever, he  has  no  right  to  receive  a  copy  of  the  Board's  report, 
or  to  appeal  since  it  is  the  Minister  who  refuses  the  renewal 
or  imposes  new  terms  and  conditions  in  accordance  with  the 
Board's  report.  The  Board  should  be  required  to  furnish  the 
applicant  with  a  copy  of  its  report  and  a  right  of  appeal  to 
the  Lieutenant  Governor  in  Coinicil  should  be  provided. 

In  addition  to  penalties  provided  for  certain  specific 
offences  created  under  the  Act/^^  a  person  may  have  his 
licence,  permit,  or  registration  suspended  or  revoked.  In 
such  case  the  person  aggrieved  is  entitled  to  a  hearing  before 
the  Board  and  the  Minister  shall  make  an  order  in  accord- 
ance with  the  Board's  report. ^*^°  These  provisions  substan- 
tially comply  with  our  recommendations  in  Report  Num- 
ber 1.  However,  the  Board  should  be  required  to  furnish  the 
applicant  with  a  copy  of  the  report  as  is  required  by  the 
amendment  to  section  23  of  the  Ontario  Energy  Board  Act.^^^ 
There  should  be  a  right  of  appeal  to  the  Lieutenant  Governor 

in  Council  in  accordance  with  our  recommendation  in  Report 
Number  1.^*52 

CONCLUSION 

In  view  of  the  great  confusion  that  exists  wdth  respect  to 
the  powers  conferred  on  the  Board  under  the  different  sta- 
tutes we  have  considered  and  the  inconsistencies  with  respect 
to  procedure  and  rights  of  appeal  there  should  be  a  complete 
revision  of  the  Board's  pow^ers  and  procedures.  With  the 
enactment  of  the  Statutory  Powers  Procedure  Act  recom- 
mended in  Report  Number  1  this  revision  would  be  greatly 
simplified. 


158 
159 

160 


Ibid.,  s.  10(2). 

Ibid.,  s.  9(1)  as  amended  by  Ont.  1967,  c.  25,  s.  3. 

Ibid.,  s.  10(3). 

^"Ont.  1964,  c.  74,  s.  23(2)  enacted  by  1968-69,  c.  81,  s.  6. 
'"-p.  1134  supra. 


1946         The  Ontario  Energy  Board 

RECOMMENDATIONS 

Unless  otherwise  indicated  references   in   these  recom- 
mendations are  to  the  Ontario  Energy  Board  Act. 

1.  Members  of  the  Board  should  have  security  of  tenure. 

2.  There  should  be  restrictions  on  those  eligible  for  mem- 
bership in  the  Board  similar  to  those  contained  in  the 
National  Energy  Board  Act. 

3.  The  Act  should  provide  that  the  Board  be  presided  over 
by  at  least  one  legally  qualified  member. 

4.  The  power  conferred  on  the  Board  under  section  13 (4a) 
to  act  on  its  own  motion  to  inquire  into  and  determine 
any  matter  that  may  be  raised  on  an  application  should 
be  repealed. 

5.  Section  36  should  be  amended  to  define  the  forms  of 
energy  which  come  within  its  scope. 

6.  Section  14  should  be  amended  so  as  to, 

(a)  set  out  the  procedural  powers  of  the  Board  without 
reference  to  the  powers  of  the  Supreme  Court; 

(b)  delete  the  Board's  powers  of  committal  to  jail.  The 
enforcement  of  the  Board's  orders  for  attendance  of 
witnesses  and  production  should  be  made  by  appli- 
cation to  a  judge  of  the  Supreme  Court. 

7.  Section  15(3)  should  be  amended  to  provide  that  reason- 
able notice  of  the  Board's  hearing  (by  service  or  publica- 
tion) shall  be  given  to  those  who  will  be  affected  by  the 
Board's  decision  rather  than  "to  such  persons  as  the 
Board  directs". 

8.  Section  15(2)  should  be  amended  so  as  to  require  that 
before  the  Board  has  power  to  proceed  ex  parte,  it  be 
made  to  appear  to  the  Board  that  the  delay  necessary  to 
give  notice  of  the  hearing  of  an  application  would  likely 
entail  serious  mischief. 

9.  Provision  should  be  made  for  payment  of  witness  fees. 
10.    Section  53(2)  should  be  repealed. 


Chapter  119         1947 

11.  Section  29(1)  should  be  amended  to  provide  that  the 
decisions  of  the  Board  shall  be  filed  with  the  secretary 
of  the  Board  and  be  enforceable  in  the  same  manner  as 
orders  of  an  ordinary  comt. 

12.  The  penal  sections  of  the  Act  should  be  completely  re- 
vised to  create  penalties  only  where  no  other  remedy 
would  be  adequate.  Minimum  penalties  should  be 
abolished. 

13.  Section  19(3)  should  be  amended  to  delete  the  words 
"which  is  not  bound  by  the  terms  of  any  contract  entered 
into  prior  to  the  day  upon  which  this  Act  comes  into 
force". 

14.  Section  35(1  )(f)  should  be  amended  to  set  out  the  pur- 
pose for  W'hich  fees  may  be  charged  by  the  Board. 

15.  Simple  procedures  should  be  provided  to  fix  compensa- 
tion for  small  claims  with  respect  to  the  acquisition  of 
rights  over  land  or  rights  of  entry  on  land  with  a  right  of 
appeal  to  the  Land  Compensation  Board. 

16.  There  should  be  no  power  to  grant  a  rehearing  where 
the  Board  has  exercised  judicial  powers  but  there  should 
be  a  right  of  appeal  to  the  Court  of  Appeal. 

17.  There  should  be  no  power  to  grant  a  rehearing  of  a  re- 
hearing except  in  exceptional  and  specified  circum- 
stances. 

18.  Section  31  should  be  amended  to  provide  a  right  in  a 
party  to  a  proceeding  before  the  Board  to  apply  to  the 
Court  of  Appeal  for  an  order  that  the  Board  state  a  case 
on  any  question  of  law  where  the  Board  refuses  to  state 
a  case.  The  words  "in  the  opinion  of  the  Board"  should 
be  deleted. 

19.  Where  an  appeal  has  been  taken  to  the  Court  of  Appeal 
the  Board  should  be  required  to  proceed  in  accordance 
with  the  opinion  of  the  Court  of  Appeal. 

20.  Section  32(6)  should  be  amended  to  provide  that  either 
the  Board  or  the  Court  of  Appeal  has  power  to  suspend 
a  rate-making  order  pending  an  appeal. 


1948         The  Ontario  Energy  Board 

21.  Section  33  should  be  amended  to  provide  that  the  right 
of  appeal  to  the  Lieutenant  Governor  in  Council, 

(a)  does  not  apply  to  interlocutory  matters; 

(b)  does  not  extend  to  matters  involving  questions  of  law 
and  jurisdiction. 

22.  Where  an  appeal  lies  to  the  Lieutenant  Governor  in 
Council  there  should  be  defined  rules  of  procedure  pro- 
viding for  a  hearing  of  the  parties  affected  by  a  decision 
of  the  Board. 

23.  Section  45  providing  that  the  decision  of  the  Board  on  an 
application  made  to  it  under  Part  II  of  the  Act  is  final 
and  conclusive  should  be  repealed. 

24.  Section  10  of  the  Municipal  Franchises  Act  should  be 
repealed  as  it  is  inconsistent  with  section  32  of  the 
Ontario  Energy  Board  Act  with  respect  to  rights  of 
appeal  to  the  Court  of  Appeal. 

25.  There  should  be  a  clear  right  of  appeal  from  declarations 
of  the  Board  under  section  66(3)  of  the  Public  Utilities 
Act. 

26.  All  statutes  conferring  power  on  the  Board  should  be 
amended  to  provide  uniform  rights  of  appeal. 

27.  The  Lieutenant  Governor  in  Council  should  not  have 
power  to  reverse  a  decision  of  the  Court  of  Appeal. 

28.  An  application  under  section  23  for  a  permit  to  bore, 
drill  or  deepen  a  well  in  a  designated  gas  storage  area 
should  be  made  to  the  Board. 

29.  Unless  there  is  some  good  reason  not  apparent  in  the 
statutes,  an  application  under  section  6  of  the  Energy  Act 
to  repressure,  maintain  pressure  in  or  flood  a  gas  or  oil 
horizon  should  be  made  to  the  Board. 

30.  Section  6(2)  of  the  Energy  Act  should  be  amended  to 
require  that  a  copy  of  the  Board's  report  be  sent  to  the 
applicant  and  that  it  be  deemed  a  decision  of  the  Board 
from  which  there  is  a  right  of  appeal  to  the  Lieutenant 
Governor  in  Council  under  section  33  of  the  Ontario 
Energy  Board  Act. 


Chapter  119         1949 

31.  Standards  should  be  provided  for  the  exercise  of  the  dis- 
cretionary powers  conferred  on  ilie  Minister  under  sec- 
tion 10  of  the  Energy  Act. 

32.  Before  refusing  a  licence,  permit,  or  registration  under 
section  10  of  the  Energy  Act  the  Minister  should  hold  a 
hearing  or  require  the  Board  to  hold  a  hearing. 

33.  Section  10(1)(2)(3)  of  the  Energy  Act  should  be  amended 
to  require  that  the  person  affected  receive  the  report  of 
the  Board  and  to  provide  for  a  right  of  appeal  to  the 
Lieutenant  Governor  in  Council. 

34.  The  Ontario  Energy  Board  Act  and  the  Energy  Act 
together  with  the  relevant  sections  of  the  other  statutes 
under  which  powers  are  conferred  on  the  Ontario  Energy 
Board  should  be  completely  revised  w^ith  a  view  to 
eliminating  the  procedural  inconsistencies  that  exist  with 
respect  to  the  exercise  of  the  powers  of  the  Board  and  the 
rights  of  appeal  from  decisions  or  orders  of  the  Board. 

35.  Section  32(4)  should  be  amended  to  provide  that  rules 
made  thereunder  be  made  by  the  Rules  Committee  con- 
stituted under  the  Judicature  Act. 


1 950         The  Ontario  Energy  Board 

APPENDIX  TO  CHAPTER  119 

Powers  Conferred  on  the  Board  under: 

(1)  The  Ontario  Energy  Board  Act,  1964: 

(a)  Approving  and  fixing  the  rates  and  charges  for  the  sale, 
transmission,  distribution  and  storage  of  gas  in  the  Province 

s.  19 

(b)  Granting  of  leave  to  construct  transmission  pipe  lines, 
production  lines,  distribution  lines  and  stations  ss.  38 

and  42 
and    powers    of   entry    to    make    surveys    and    examinations 

s.   39(10) 

(c)  Granting  authority  to  expropriate  land  for  pipe  lines  and 
stations  s,  40 

(d)  Recommending  designation  of  lands  for  gas  storage  areas 

ss.  35(l)(k) 

and  35(2) 

(e)  Authorizing  storage  of  gas  in  designated  gas  storage  areas 
and  the  entry  on  and  use  of  land  for  such  purpose  s.  21 

(f)  Requiring  the  joining  of  interests  in  gas  or  oil  pools  s.  24 

(g)  Examining  and  reporting  on  any  matters  pertaining  to 
energy  referred  to  the  Board  by  the  Lieutenant  Governor  in 
Council  s.  36 

(h)  Reporting  to  the  Minister  on  references  for  permits  to 
bore,  drill  or  deepen  wells  in  designated  gas  storage  areas  s.  23 
(i)  Ordering  the  sharing  of  storage  capacity  and  facilities  and 

approving  of  terms  of  storage  agreements  s.  22 

(j)  Ordering  the  payment  of  money  out  of  the  Abandoned 
Works  Fimd  (see  ss.  40,  41,  O.Reg.  326/64)  to  be  created  by 
regulation  under  the  Energy  Act  1964,  s.  11(3),  para,  h  ....  s.  26 

(k)  Granting  leave  to  discontinue  supply  of  gas s.  25 

(1)  Hearing  applications  for  leave  to  sell,  lease  or  convey  or 
otherwise  dispose  of  gas  transmission  and  storage  facilities  or 
to  acquire  more  than  20  percent  of  the  shares  of  a  gas  trans- 
mitter, gas  distributor  or  storage  company  (Ont.  1968-69,  c. 
81,  s.  7)  \ s.  25a 

(2)  The  Energy  Act,  1964: 

(a)  Examining  and  reporting  on  certain  matters  referred  to 
the  Board  by  the  Minister  of  Energy  and  Resources  Manage- 
ment    ss.  6(2)  and  10 

(3)  The  Municipal  Franchises  Act: 

(a)  Approving  terms  and  conditions  of  franchise  agreements 
ss.  9  and  4 


Appendix         1951 

(b)  Granting  certificates  of  public  convenience  and  necessity 

S.8 

(4)  The  Assessment  Act,  1968-09: 

(a)  Determining  of  proper  classification  of  pipe  lines  for 
assessment  purposes  when  classification  as  transmission  lines 
is  in  dispute  s.  33(3) 

(5)  The  Public  Utilities  Act: 

(a)  Making  declarations  that  municipal  by-laws  prohibiting 
the  sale  or  distribution  of  gas  containing  sulphuretted  hydro- 
gen have  been  contravened  s.  66(3) 

(h)  Ordering  the  removal  of  conduits,  mains,  pipes  and  works 
of  companies  on  proof  of  their  contravention  of  the  municipal 
by-law  s.  66(5) 


CHAPTER  120 

The  Ontario  Food  Terminal 
Board 

INTRODUCTION 

Ihe  Ontario  Food  Terminal  Board  is  constituted 
under  the  Ontario  Food  Terminal  Act,^  The  Board  shall 
consist  of  not  more  than  seven  persons  appointed  by  the 
Lieutenant  Governor  in  Council." 

The  objects  of  the  Board  are  to  acquire,  construct  and 
operate  a  ^vholesale  fruit  and  produce  market  in  the  County 
of  York  and  to  do  such  other  acts  as  may  be  necessary  or 
expedient  for  the  carrying  out  of  its  operations  and  under- 
takings.^ 

The  term  "fruit  and  produce"  is  defined  to  include 
dairy  products,  eggs,  honey,  maple  products,  poultry  and 
vegetables.^ 

In  the  exercise  of  its  powers  the  Board  acquired  a  parcel 
of  land  in  Metropolitan  Toronto  and  erected  thereon  a  food 
terminal  warehouse  in  which  wholesale  marketing  operations 
are  carried  on.  It  is  unnecessai^  for  us  to  discuss  in  detail  the 
method  of  carrying  on  these  operations.  We  are  principally 
concerned  with  the  powers  of  the  Board. 

THE  POWERS  OF  THE  BOARD 

The  Board  may  rent  space  in  the  Terminal  to  such 
persons  and  upon  such  terms  as  to  the  Board  may  seem  proper 
and  may  make  such  arrangements  and  enter  into  such  agree- 
ments with  such  persons  as  it  may  deem  advisable  in  the 

'R.S.O.  I960,  c.  272  as  amended  by  Ont.  1964,  c.  75. 
'Ibid.,  s.  2,  and  R.R.O.  1960,  Reg.  461,  s.  1. 
"Ibid.,  s.  4. 
*Ibid.,  s.  1(b). 

1952 


Chapter  120         1953 

circumstances.^  This  is  a  broad  power  and  as  we  shall  see  it 
has  been  exercised  broadly. 

No  person  shall  establish  within  the  City  of  Toronto  or 
the  Counties  of  York  or  Peel  any  market  for  the  sale  by  whole- 
sale of  fruit  and  vegetables  except  with  the  approval  of  the 
Board.  This  provision  does  not  extend  to  any  market  that 
was  being  regularly  and  continuously  operated  as  of  the  1st 
of  April,   1955,  so  long  as  it  is  not  extended  or  enlarged.'' 

Subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council  the  Board  may  make  regulations, 

(a)  prescribing  the  officers  of  the  Board; 

(b)  prescribing  the  powers  and  duties  of  the  manager  of 
the  Terminal  and  the  officers  of  the  Board; 

(c)  prescribing  the  form  of  the  seal  of  the  Board; 

(d)  respecting  the  operation,  management  and  maintenance 
of  the  Terminal; 

(e)  respecting  any  matter  necessary  or  advisable  to  carry  out 
effectively  the  intent  and  purpose  of  the  Act.'^ 

It  is  to  be  observed  that  sub-clause  (e)  just  quoted  is  a 
very  ^vide  delegation  of  legislative  power. 

Subject  to  the  regulations  the  Board  may  make  rules 
with  respect  to, 

(a)  the  conduct  of  the  Board's  employees; 

(b)  the  conduct  of  the  Board's  tenants  and  their  employees; 

(c)  the  conduct  of  any  person  on  the  Board's  premises  for 
any  purpose; 

(d)  the  use  by  any  person  of  the   Board's  facilities   and 
equipment.^ 

In  addition  to  the  rule-making  powers,  the  exercise  of 
which  must  be  approved  by  the  Lieutenant  Governor  in 
Council,  the  Board  in  the  exercise  of  its  powers  to  do  such 
"other"  acts  as  may  be  necessary  or  expedient  for  the  carrying 
out  of  its  operations  and  undertakings  may  make  rules  affect- 
ing not  only  the  interests  of  the  tenants  of  the  Terminal  but 
those  doing  business  with  them.    For  example,  it  has  been 

^Ibid.,  s.  5. 
"Ibid.,  s.  12. 
'Ibid.,  s.  13. 
'Ibid.,  s.  14. 


1954         Ontario  Food  Terminal  Board 

decided  that  under  these  powers  the  Board  could  make  an 
order  that  the  Terminal  should  not  be  open  for  selling  fruit 
and  produce  on  Saturdays.^ 

Every  person  who  contravenes  any  of  the  provisions  of 
the  Act  or  the  regulations  or  any  rule  made  by  the  Board  is 
liable  to  both  fine  and  imprisonment.  This  gives  the  Board 
power  to  create  offences  for  which  an  offender  may  be  im- 
prisoned and  there  is  no  means  by  which  the  rules  of  the 
Board  creating  such  offences  are  to  be  published  unless  they 
are  approved  by  the  Lieutenant  Governor  in  Council. 

All  the  rules  of  the  Board  made  affecting  the  rights  of 
tenants  or  the  public  should  require  the  approval  of  the 
Lieutenant  Governor  in  Council. 

The  Government  of  Ontario  provided  the  funds  for  the 
erection  of  the  Terminal  on  an  amortization  plan  to  be 
secured  by  the  rents  from  30-year  binding  leases  for  ware- 
house space  with  parties  engaged  in  the  fruit  and  produce 
trade. 

We  have  been  furnished  with  a  specimen  of  the  ware- 
house lease  which  provides  for  an  annual  rental  over  the 
30-year  period.  At  the  end  of  the  period  the  tenant  is  entitled, 
by  giving  30  days'  notice  in  writing  prior  to  the  expiration 
of  the  term,  or  any  renewal  thereof,  to  further  successive 
terms  of  30  years  upon  an  annual  rental  payment  of  SI. 00 
per  year,  and  in  the  case  of  "A"  Units  1%  and  in  the  case 
of  "B"  Units  1/9  of  1%  of  all  operating  and  maintenance 
expenses,  taxes  or  payments  in  lieu  of  taxes  under  the 
Municipal  Tax  Assistance  Act  and  all  other  charges  for  the 
upkeep  of  the  Food  Terminal  Building  but  excluding  there- 
from any  charges  for  depreciation  or  amortization  of  the 
original  cost  of  the  Food  Terminal  Building  and  any  repairs, 
replacements,  labour  and  other  expenses  chargeable  to  the 
operation  of  the  cold  storage  plant. 

Thirty-one  wholesalers  have  entered  into  leases  with  the 
Board  and  they  have  the  right  to  assign  and  sublet  with  leave 
of  the  Board. 

The  effect  of  the  Act  and  the  terms  of  the  leases  is  to 
give  those  holding  leases  a  wide  control  over  the  wholesale 

"Jamieson's  Foods  Ltd.  v.  Ont.  Food  Terminal  Bd.,  [1961]  S.C.R.  276. 


Chapter  1 20         1955 

marketing  of  fruit  and  vegetables  in  the  Counties  of  York  and 
Peel  subject  to  the  orders  of  the  Board  and  with  the  exception 
of  those  operations  that  were  carried  on  (but  nuist  not  be 
enlarged)  when  the  Terminal  commenced  its  operation. 

The  right  to  the  renewal  of  the  leases  at  the  end  of 
30  years  at  the  nominal  rent,  together  with  their  monopo- 
listic attributes,  has  given  to  them  great  value. 

In  a  publication  prepared  by  the  Board  there  is  this 
statement: 

"Since  the  Ontario  Food  Terminal  came  into  operation,  its 
warehouse  facilities  have  been  leased  to  capacity.  Its  capital 
cost  of  $5,100,000.00  financed  through  a  sale  of  debenture 
bonds  in  1955  has  been  fully  serviced.  The  property  has 
greatly  increased  in  value  since  operations  commenced  in 
1954  and  some  tenants  have  doubled  and  trebled  their  sales 
volume  since  mo\'ing  out  of  their  former  premises  in  the  old 
doAvntown  Toronto  wholesale  market  area.  Three  tenant 
leases  have  been  sold  Avithin  the  past  two  years  for  about  as 
much  money  as  the  lessees  paid  in  rent  since  the  Food  Ter- 
minal opened  due  to  the  30-year  amortization  provisions  and 
the  franchise  privileges  in  the  warehouse  lease  held  by  the 
tenants.  It  is  expected  at  the  end  of  this  period  that  the 
capital  cost  of  the  Food  Terminal  will  be  retired.  The  firms 
then  completing  the  agreement  under  their  lease  will  be 
relieved  of  all  future  payments  of  rent  and  will  only  pay 
henceforth  their  pro  rata  share  of  the  taxes,  upkeep  and 
overhead  of  the  Food  Terminal.  Meanwhile,  they  have  the 
right  to  transfer  or  dispose  of  their  leases  subject  to  the 
approval  of  the  Food  Terminal  Board.  This  explains  why 
aU  warehouse  leases  are  now  increasing  in  value." 

We  are  not  concerned  with  the  policy  of  establishing 
this  form  of  control  over  the  wholesale  marketing  of  fruit 
and  produce  or  whether  it  is  in  the  public  interest  to  confer 
on  lessees  rights  in  perpetuity  at  their  election.  That  is  a 
political  question.  We  are,  however,  concerned  with  the 
safeguards  that  have  been  provided  wdth  respect  to  the 
exercise  of  the  powers  of  the  Board. 

The  Board  is  given  power  to  rent  space  in  the  Terminal 
"to  such  persons  and  upon  such  terms  as  the  Board  may  deem 
proper"  and  it  may  make  such  arrangement  and  enter  into 
such  agreement  with  any  such  person  "as  it  may  deem  advis- 
able in  the  circumstances."    No  standards  are  set  to  guide 


1956         Ontario  Food  Terminal  Board 

the  Board  in  the  exercise  of  these  wide  powers  and  although 
the  Government  has  provided  the  funds  for  the  acquisition 
of  the  site  and  erection  of  the  Terminal,  the  approval  of  the 
Lieutenant  Governor  in  Council  is  not  required  with  respect 
to  their  exercise. 

The  prohibition  against  establishing  any  market  for  sale 
by  wholesale  of  fruit  and  vegetables  in  the  City  of  Toronto 
or  the  Counties  of  York  and  Peel  without  the  approval  of  the 
Board  and  the  prohibition  against  the  enlargement  of  any 
market  being  operated  on  the  1st  of  April,  1955,  is  a  much 
wider  power  than  the  licensing  powders  which  we  discussed 
in  Report  Number  1/^ 

It  is  a  power  to  create  and  maintain  a  monopoly  in  the 
interests  of  the  tenants  of  the  Terminal.  No  guidelines  are 
set  out  in  the  statute  for  the  exercise  of  this  power  and  no 
rights  of  appeal  are  provided. 

We  have  been  informed  by  the  Board  that  they  have 
received  applications  for  leave  to  operate  markets  for  the  sale 
by  wholesale  of  fruit  and  vegetables,  some  of  which  have  been 
granted  and  some  of  which  have  been  refused. 

It  is  not  clear  from  the  Act  whether  the  powers  we  have 
been  discussing  are  granted  to  the  Board  to  protect  those  who 
have  leased  premises  in  the  Terminal  or  to  protect  the  public. 

In  Report  Number  1  in  dealing  with  licensing  powers 
we  recommended  that  where  power  to  license  is  conferred 
the  purpose  of  the  power  and  the  grounds  upon  which  it  is 
to  be  exercised  should  be  carefully  determined  and  then 
expressed  in  legislation  with  as  much  clarity  and  objectivity 
as  possible.^^ 

RECOMMENDATIONS 

1.  The  Ontario  Food  Terminal  Act  should  be  amended  to 
declare  the  policy  of  the  Act  with  respect  to  the  powers 
conferred  on  the  Board. 

2.  Standards  should  be  set  for  the  guidance  of  the  Board 
and  the  protection  of  the  public  in  the  exercise  of  its 
powers  to  grant  leases. 

'"p.  1094ff.  supra. 
"p.  U06  supra. 


Chapter  120         1957 

3.  Standards  should  be  set  for  the  guidance  of  the  Board  in 
the  exercise  of  its  powers  to  permit  or  refuse  to  permit 
persons  to  establish  and  operate  within  the  City  of 
Toronto  and  the  Counties  of  York  and  Peel,  markets  for 
the  sale  by  wholesale  of  fruit  and  vegetables,  and  to  permit 
or  refuse  to  permit  the  extension  or  enlargement  of  such 
markets  which  were  operated  on  the  1st  of  April,  1955. 

4.  There  should  be  a  right  of  appeal  to  an  appellate  body 
against  a  refusal  of  the  Board  to  grant  a  permit  to  operate 
or  enlarge  a  market  for  the  sale  of  fruit  and  vegetables 
by  wholesale. 

5.  All  rules  passed  by  the  Board  which  create  offences  or 
affect  the  public  interest  should  be  subject  to  the  approval 
of  the  Lieutenant  Governor  in  Council. 


CHAPTER  121 


The  Ontario  Highway 
Transport  Board 


INTRODUCTION 

i  HE  Ontario  Highway  Transport  Board  to  which  we 
shall  hereafter  refer  as  "the  Board"  is  constituted  under  the 
authority  of  the   Ontario  Highway  Transport  Board  Act.^ 

The  main  function  of  the  Board  is  to  issue  certificates 
of  public  necessity  and  convenience  under  the  Public  Com- 
mercial Vehicles  Act  and  the  Public  Vehicles  Act.  The 
approval  of  the  Board  is  not  required  for  the  renewal  of 
licences  under  either  Act  unless  the  application  for  renewal 
is  referred  to  it  by  the  Minister  or  the  Registrar  of  Motor 
Vehicles.  On  such  references  the  Board  may  grant  its 
approval  or  refuse  the  certificate.  The  Board  may  be  required 
by  the  Minister  to  conduct  a  hearing  to  determine  if  a 
vehicle  is  a  public  commercial  vehicle  or  a  public  vehicle. 
It  must  approve  of  all  transfers  of  operating  licences  of 
commercial  and  public  vehicles  and  it  may  require  that 
corporations  who  are  holders  of  operating  licences  receive 
approval  of  transfers  of  shares  of  the  capital  stock  of  the 
corporations.^ 

The  concept  of  the  Board  and  its  functions  had  their 
origins  in  the  recommendations  of  the  Royal  Commission 
on  Transportation  which  reported  on  December  23,  1938. 
At  that  time  the  extensive  use  of  hard  surface  highways  for 

"R.S.O.  I960,  c.  273,  amended  bv  Ont.  1960-61,  c.  65  and  Ont.  1961-62,  c.  92. 
^'R.S.O.  1960,  c.  319,  s.  4,  as  amended  by  Ont.  1968,  c.  105.  s.  4;  ss.  4a  and  5, 
as  enacted  by  Ont.  1961-62,  c.  114,  ss.  5,  6;  and  R.S.O.  1960,  c.  337,  ss.  2,  3. 

1958 


Chapter  121         1059 

the  transportation  of  goods  and  passengers  was  just  develop- 
ing. The  Commission  found  that  a  chaotic  condition,  which 
had  developed  by  reason  of  severe  and  unrestricted  com- 
petition, existed  in  the  motor  transport  industry.  It  was 
recommended  that  a  Board  be  appointed  "clothed  with  the 
powers  and  authority  to  deal  fully  and  completely  with  the 
problem  of  transportation  in  the  Province  in  its  varied  and 
complex  forms.  The  conditions  of  appointment  and  service 
should  be  such  that  the  members  of  it  can  act  with 
independence  and  security."^ 

The  recommendation  of  the  Commission  was  imple- 
mented by  conferring  regulatoi7  duties  on  the  Ontario 
Municipal  Board.^  In  1955  the  jurisdiction  exercised  by  the 
Ontario  Municipal  Board  was  transferred  to  the  Ontario 
Highway  Transport  Board." 

The  Board  consists  of  a  chairman,  two  vice-chairmen  and 
three  members  appointed  by  the  Lieutenant  Governor  in 
Council.  One  of  the  vice-chairmen  and  one  other  member 
are  qualified  lawyers. 

HEARINGS 

Two  members  of  the  Board  constitute  a  quorum.^ 
However,  the  chairman  may  authorize  one  member  to  con- 
duct the  hearing  of  an  application  and  report  to  the  Board. 
In  the  conduct  of  the  hearing  such  member  has  all  the  powers 
of  the  Board.  The  report  of  such  a  member  may  be  adopted 
by  two  members  of  the  Board. '^  This  procedure  is  in  violation 
of  the  principle  that  he  who  decides  should  hear.  This  we 
discussed  in  Report  Number  1.®  We  are  advised  by  the 
chairman  that  this  power  is  very  seldom  exercised  and  where 
it  is  exercised  the  matters  heard  are  of  a  non-contentious 
nature.  The  provision  is  unobjectionable  and  useful  if  it  is 
confined  to  uncontentious  matters.  The  Board  should  have 
a  rule  that  where  a  party  to  an  application  so  requests  he 

^See  Report  of  Gordon  Committee  on  the  Organization  of  Government  in 
Ontario  (1959),  424. 
*R.S.O.  1950,  c.  304. 
■^Ont.  1955,  c.  54. 

"R.S.O.  1960,  c.  273,  s.  5  as  amended  by  Ont.  1961-62,  c.  92,  s.  2. 
'Ibid.,  s.  5a  as  enacted  by  Ont.  1961-62,  c.  92,  s.  3. 
"pp.  129  and  220  supra. 


1960         The  Ontario  HigJiicay  Transport  Board 

should  be  entitled  to  a  hearing  by  a  quorum  of  the  Board. 
This  is  now  the  practice  but  not  one  laid  down  by  rule. 
"W^e  think  that  in  all  cases  a  quorum  of  the  Board  should  be 
three,  except  that  one  member  may  hear  uncontested  matters 
and,  on  consent  of  all  parties,  hear  a  contested  matter. 

INVESTIGATORY  POWERS 

The  Board  has  the  same  power  as  is  vested  in  any  court 
in  civil  cases  to  summon  any  person  as  a  witness  and  to 
require  him  to  give  evidence  under  oath  and  to  produce 
documents  and  things  as  may  be  required.^  This  includes  the 
power  to  commit  for  contempt.  The  chairman  was  asked 
if  it  would  impede  the  work  of  the  Board  if  the  power  to 
commit  for  failure  to  obey  orders  of  the  Board,  e.g.,  to 
respond  to  a  summons  or  answer  questions,  was  vested  in  a 
judge  of  the  Supreme  Court  and  his  answer  was  "no,  abso- 
lutely no,  provided  we  had  recourse  to  someone  .  .  .  This 
would  be  perfectly  acceptable  as  long  as  we  are  in  a  position 
to  be  able  to  enforce  it.  It  is  highly  desirable  because  it 
would  relieve  us  of  that  responsibility." 

This  was  the  practice  we  recommended  in  Report 
Number  \}^   The  Act  should  be  amended  accordingly. 

ENFORCEMENT  OF  THE  BOARD'S  ORDERS 

A  certified  copy  of  an  order  of  the  Board  may  be  filed 
with  the  Registrar  of  the  Supreme  Court  and  thereupon  it 
becomes  a  judgment  or  order  of  the  Supreme  Court  enforce- 
able in  the  same  manner  as  a  judgment  of  that  court  to 
like  effect. ^^  The  effect  of  this  provision  is  to  make  an  order 
made  by  a  tribunal  appear  to  be  an  order  of  the  Supreme 
Court  which  it  is  not.  It  would  be  sufficient  if  the  section 
provided  that  orders  of  the  Board  should  be  filed  with  the 
secretary  of  the  Board  and  be  enforced  by  the  sheriff  in  the 
same  manner  as  an  order  or  judgment  of  the  Supreme  Court. 
It  is  quite  inconsistent  with  the  practice  and  procedure  of  the 
Supreme  Court  to  have  orders  made  by  tribunals  other  than 
the  Supreme  Court  become  judgments  or  orders  of  the  Court. 

'R.S.O.  1960,  c.  273,  s.  9. 
^°p.  446  supra. 
"R.S.O.  1960,  c.  273,  ss.  17,  24. 


Chapter  J 21         1901 

REASONS 

There  is  no  provision  in  ilic  Act  nor  in  the  Rules  of 
Procedure  made  by  the  Board  requiring  the  Board  to  give 
reasons  for  its  decisions.  The  Board  should  be  required  to 
give  reasons  if  re(|uested  by  an  interested  party. 

APPEALS 

Stated  Case 

The  Board  has  power  to  state  a  case  on  a  question  of  law 
for  the  opinion  of  the  Court  of  Appeal.^-  The  chairman  of 
the  Board  agrees  that  this  is  a  useful  provision.  It  enables 
a  question  of  law  to  be  settled  without  waiting  until  the  end 
of  what  may  be  a  long  hearing. 

The  provisions  of  the  section  are  inadequate  in  three 
respects: 

(1)  The  power  is  to  state  a  case  "upon  any  question  that  in 
the  opinion  of  the  Board  is  a  question  of  law."  The  appli- 
cant should  have  a  right  to  have  a  case  stated  on  any 
question  of  law  regardless  of  whether  the  Board  is  of  the 
opinion  that  it  is  a  question  of  law.  If  the  question  of  law 
exists  the  right  should  exist. 

(2)  If  the  Board  refuses  to  state  a  case  the  applicant  should 
have  the  right  to  apply  to  the  court  for  an  order  directing 
the  Board  to  state  a  case  on  any  question  of  law. 

(3)  The  Board  should  be  required  to  act  on  the  opinion 
of  the  Court  of  Appeal. 

Appeal  to  the  Court  of  Appeal 

An  appeal  lies  from  the  Board  to  the  Court  of  Appeal 
upon  any  question  of  jurisdiction  or  upon  any  question  of 
law  if  leave  is  obtained  from  the  court  within  one  month 
of  the  making  of  the  order  or  decision.  The  court  has  power 
to  extend  this  time  under  special  circumstances.^^ 

The  Registrar  shall  set  the  appeal  down  for  the  next 
sittings  of  the  court  after  leave  to  appeal  has  been  obtained 
and  the  party  appealing  shall  within  ten  days  give  notice  to 
the  parties  represented  before  the  Board  that  the  case  has 

^Ubid.,  s.  19. 
^"Ihid.,  s.  21(1). 


1962         The  Ontario  Highzvay  Transport  Board 

been  so  set  down.^^  This  provision  is  not  consistent  with  the 
Rules  of  Practice  and  Procedure  of  the  Supreme  Court  and  is 
not  a  practical  one,  as  the  party  appealing  is  required  to  give 
ten  days'  notice  to  the  parties  who  were  represented  before 
the  Board  before  the  appeal  may  be  heard.  This  practice 
should  be  made  consistent  with  the  rules  of  procedure  govern- 
ing appeals  in  the  Supreme  Court. ^^ 

The  Board  is  entitled  to  be  heard  by  counsel  or  other- 
wise upon  the  argument  of  an  appeal.  Neither  the  Board 
nor  a  member  thereof  is  liable  for  costs  on  an  appeal  or  an 
application  for  leave  to  appeal. ^^  If  the  Board  takes  an  active 
part  in  opposing  an  appeal  and  is  unsuccessful  there  would 
not  appear  to  be  any  reason  why  the  costs  should  not  be  in 
the  discretion  of  the  court. 

Appeal  to  the  Lieutenant  Governor  in  Council 

Upon  the  petition  of  any  party  or  person  interested,  filed 
within  60  days  of  an  order  or  decision  of  the  Board,  the 
Lieutenant  Governor  in  Council  may  confirm,  vary  or  rescind 
the  whole  or  any  part  of  the  decision  or  require  the  Board 
to  hold  a  new  public  hearing  of  the  matter.^^ 

It  is  not  clear  what  the  scope  of  this  provision  is.  The 
words  used  are  "orders  or  decisions  of  the  Board"  while  the 
words  used  in  respect  of  the  Board's  powers  of  review  are 
"decisions,  orders,  directions,  certificates  or  approvals"^^  and 
the  words  used  in  respect  of  the  application  of  the  Regula- 
tions Act  are  "any  order,  decision,  consent,  approval,  or 
certificate"." 

The  right  of  appeal  to  the  Lieutenant  Governor  in 
Council  by  way  of  petition  should  be  clearly  defined. 
It  should  not  include  matters  of  law  or  interlocutory  matters. 

We  discuss  similar  rights  of  appeal  in  Chapter  125  when 
dealing  with  the  rights  of  appeal  from  orders  of  the  Ontario 
Municipal  Board. ^'^ 

^'Ibid.,  s.  21(2). 

"This  is  fully  discussed  in  Chapter  125,  pp.  2037-38  infra. 

"R.S.O.  1960,  c.  273,  s.  21(4)(6). 

^Ubid.,  s.  20. 

"7&?U,  s.  16. 

^"Ibid.,  s.  13. 

"pp.  2039-40  infra. 


Chapter  121  1%3 

PROCEEDINGS  AGAINST  THE  BOARD 

"No  action  or  other  proceeding  lies  against  the  Board  or  any 
member  ot  the  Board  or  any  ofhcer,  agent  or  employee  ot 
the  Board  tor  anything  done  or  purportnig  to  be  done  under 
or  in  pursuance  of  this  or  any  other  Act."-^ 

The  protection  afforded  by  this  section  is  unreasonably 
^vide  and  unjust.  Not  only  are  the  Board  and  its  members 
protected  from  any  action  for  anything  done  pursuant  to  the 
Act  but  anything  purporting  to  be  done  pursuant  to  the  Act. 
The  members  of  the  Board  may  act  quite  illegally  and  injure 
a  citizen  with  impunity  as  long  as  they  purport  to  act  under 
the  Act,  but  the  protection  goes  even  further  than  this. 
As  long  as  they  purport  to  act  pursuant  to  "any  other  Act" 
they  are  protected. 

It  is  hard  to  see  on  what  basis  this  statutory  protection 
from  common  law  liability  can  be  supported.  But  the  protec- 
tion does  not  end  there.  It  is  extended  to  "any  officer,  agent 
or  employee  of  the  Board".  For  example,  this  section  would 
appear  to  give  protection  to  an  officer  or  employee  of  the 
Board  who  purported  to  act  as  an  inspector  under  any  Act  of 
the  Legislature  whether  he  had  power  to  do  so  or  not,  and 
render  him  immune  from  liability  for  damages  arising  out  of 
any  injury  done  by  reason  of  an  illegal  order,  merely  because 
he  purported  to  have  authority  to  issue  the  order. 

Not  only  do  these  provisions  relieve  the  Board,  its 
members,  officers,  agents  and  employees  of  liability  for  their 
WTongful  acts  but  the  Crown  as  well  is  relieved  of  liability. 
This  we  discuss  at  length  in  Chapter  131  when  dealing  with 
the  provisions  of  the  Proceedings  Against  the  Crown  Act. 

The  recommendations  we  make  there  apply  to  the 
Ontario  Highway  Transport  Board  Act. 

RECOMMENDATIONS 

1.  Where  a  party  affected  by  an  application  to  the  Board 
so  requests  he  should  be  entitled  to  a  hearing  by  a 
quorum  of  three  members  of  the  Board. 

2.  The  Board  should  not  have  power  to  commit  for  con- 
tempt.   The  powers  of  compulsion  should  be  exercised 


^R.S.O.  I960,  c.  273,  s.  11. 


1964         The  Ontario  Highway  Transport  Board 

by  the  Supreme  Court  as  recommended  in  Report  Num- 
ber 1,  Chapter  32. 

3.  The  orders  of  the  Board  should  not  be  filed  with  the 
Registrar  of  the  Supreme  Court  but  they  should  be  filed 
with  the  secretai7  of  the  Board  and  be  enforced  in  the 
same  manner  as  an  order  or  judgment  of  the  Supreme 
Court. 

4.  The  Board  should  be  required  to  give  reasons  for  its 
decisions  if  requested  by  a  party  to  the  proceedings 
before  it. 

5.  The  right  to  appeal  to  the  Court  of  Appeal  by  way  of  a 
stated  case  should  not  be  dependent  on  the  subjective 
test  that  "in  the  opinion  of  the  Board"  the  matter 
is  a  question  of  law. 

6.  If  the  Board  refuses  to  state  a  case  on  a  question  of  law 
the  applicant  should  have  a  right  to  apply  to  the  Court 
of  Appeal  for  an  order  directing  the  Board  to  state 
a  case. 

7.  Where  the  Court  of  Appeal  has  given  an  opinion  on  a 
stated  case  the  Board  should  be  required  to  act  in 
accordance  with  the  opinion  of  the  Court  of  Appeal, 

8.  Where  leave  to  appeal  to  the  Court  of  Appeal  has  been 
granted  under  the  provisions  of  the  Act  the  practice  and 
procedure  governing  the  appeal  should  be  consistent 
with  the  practice  and  procedure  governing  appeals  in 
the  Supreme  Court. 

9.  If  the  Board  takes  an  active  part  in  opposing  an  appeal 
and  is  unsuccessful  the  Court  should  have  a  discretion 
to  award  costs  against  the  Board. 

10.  The  right  of  appeal  by  petition  to  the  Lieutenant 
Governor  in  Council  should  be  clarified.  It  should  not 
include  a  question  of  law  or  interlocutory  matters. 

1 1 .  The  common  law  rules  of  liability  should  apply  where 
injury  has  been  caused  by  reason  of  the  wrongful  acts 
of  members  of  the  Board,  its  officers,  agents  or  employees 
with  a  right  to  indemnification  by  the  Crown  in  proper 
cases.  (See  Chapter  131  for  recommendations  concern- 
ing proceedings  against  the  Crown.) 


CHAPTER  122 


The  Ontario  Hospital  Services 
Commission 


INTRODUCTION 

Ihe  Ontario  Hospital  Services  Commission  has  been 
established  under  the  Hospital  Services  Commission  Act.^  It 
consists  of  no  fewer  than  three  persons  and  no  more  than 
seven  appointed  by  the  Lieutenant  Governor  in  Council  for 
no  fixed  term.  A  majority  of  the  members  shall  form  a  quorum. 
The  Act  enables  the  Commission  to  establish  six  divisions 
performing  different  functions— administration,  planning  hos- 
pitals, furnishing  consultant  services,  hospital  accounting, 
providing  hospital  care,  insurance  and  research  including 
statistics. - 

It  reports  annually  to  the  designated  Minister  and 
through  the  Provincial  Secretary  to  the  Legislative  Assembly.^ 

We  are  principally  concerned  with  the  administration 
of  the  Hospital  Care  Insurance  Plan.  The  purpose  of  the 
Plan  is  to  provide  hospital  insurance  for  members  of  the 
public. 

^R.S.O.  1960,  c.  176  as  amended  by  Ont.  1961-62,  c.  55;  Ont.  1962-63,  c.  58; 
Ont.  1965,  c.  49;  Ont.  1967,  c.  36  and  Ont.  1968,  c.  53. 
"R.S.O.  1960,  c.  176,  s.  8. 
^Ibid.,  s.  11. 

1965 


1966         The  Ontario  Hospital  Services  Commission 

SUBORDINATE  LEGISLATIVE  POWERS 

Defining  Words  Used  in  the  Act 

Subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council,  the  Commission  is  given  power  to  make  regulations.^ 
This  power  includes  power  to  make  regulations  "defining 
words  used  in  the  Act  for  the  purposes  of  the  Act  and  the 
regulations"."  This  is  a  power  that  ought  not  to  be  conferred 
on  a  subordinate  body.  It  gives  the  subordinate  body  power 
to  change  the  meaning  of  the  Act  as  it  was  passed  by  the 
Legislature.^ 

The  provision  conferring  this  power  should  be  repealed. 

Discipline  of  Patients 

Regulations  may  be  passed  "providing  for  the  .  .  .  disci- 
pline ...  of  patients  or  any  class  of  patients  in  hospitals  in 
Ontario  to  which  hospitals  payments  are  made  under  the  plan 
of  hospital  care  insurance.""  This  power  has  not  been  exer- 
cised. We  question  that  it  is  necessary  for  the  effective 
administration  of  hospitals  that  patients  who  enter  hospitals 
should  be  subject  to  the  disciplinary  powers  of  the  Ontario 
Hospital  Services  Commission.  The  power  to  make  regula- 
tions for  the  discharge  of  patients  should  be  sufficient.  The 
fact  that  the  power  has  not  been  exercised  would  appear  to 
indicate  that  it  is  an  unnecessai'y  one.  The  provision  confer- 
ring this  power  should  be  repealed. 

Subrogation 

Subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council,  the  Commission  may  make  regulations  "subrogating 
the  Commission  to  any  right  of  recovery  of  past  hospital 
expenses  and  future  hospital  expenses  by  an  insured  person 
or  by  a  hospital  indigent  described  in  the  regulations  in 
respect  of  any  injury  or  disability,  and  providing  the  terms 
and  conditions  under  which  an  action  to  enforce  such  rights 
may  be  begun,  conducted  and  settled. . .  ."^ 

'Ibid.,  s.  15. 

^Ibid.,  s.  15(l)(c). 

'pp.  345-48  supra. 

'R.S.O.  1960,  c.  176,  s.  15(l)(h). 

^Ibid.,  s.  15(1  j(l)  as  re-enacted  by  Ont.  1968,  c.  53,  s.  3. 


Chapter  122         1967 

Under  a   predecessor  provision   a  regulation   has  been 
passed  which  reads  in  part  as  follows: 

"52.  (2)  "The  Commission  is  subrogated  to  any  right  of  an 
insured  person  to  recover  all  or  part  of  the  cost  of 
insured  services  from  any  other  person,  including 
future  insured  services,  and  the  Commission  may 
bring  action  in  the  name  of  the  insured  person  to 
enforce  such  riohts. 

(3)  Any  insured  person  shall  not  release  any  right  to 
which  the  Commission  is  subrogated  without  the 
consent  of  the  Commission. 

(4)  An  insured  person,  who  commences  an  action  to 
recover  for  loss  or  damages  arising  out  of  the  negli- 
gence or  other  wrongful  act  of  a  third  party  to 
which  the  injury  or  disability  in  respect  of  which 
insured  services  have  been  provided  is  related,  shall 
include  a  claim  on  behalf  of  the  Commission  for  the 
cost  of  the  insured  services. 

(5)  Where  an  insured  person  commences  an  action  re- 
ferred to  in  sub-section  4,  his  solicitor  shall  so  inform 
the  Commission  forthwith  after  issuing  the  writ  and 
shall  act  as  solicitor  for  the  Commission  for  the  pur- 
pose of  this  section  unless  notified  by  the  Commis- 
sion that  another  solicitor  is  appointed  by  the  Com- 
mission for  the  purpose. 

(6)  Subject  to  subsection  8,  where  an  insured  person 
obtains  a  final  judgment  in  an  action  in  which  he 
includes  a  claim  on  behalf  of  the  Commission,  the 
Commission  shall  bear  the  same  proportion  of  the 
taxable  costs  otherwise  payable  by  the  insured  per- 
son, whether  on  a  party  and  party  basis  or  on  a  soli- 
citor and  client  basis,  as  the  recovery  made  on  behalf 
of  the  Commission  bears  to  the  total  recovery  of  the 
insured  person  in  the  action  or,  where  no  recovery 
is  made,  as  the  assessed  claim  of  the  Commission 
bears  to  the  total  damages  of  the  insured  person 
assessed  by  the  court. 

(7)  Where  a  claim  is  settled,  the  Commission  shall  bear 
the  same  proportion  of  the  taxable  costs  otherwise 
payable  by  the  insured  person  as  is  set  out  in  sub- 
section 6  in  respect  of  a  recovery  made. 

(8)  The  costs  for  which  the  Commission  may  be  liable 
to  bear  a  portion  under  subsection  6  are  the  costs 
of  bringing  the  action  to  the  conclusion  of  the  trial 


1968  The  Ontario  Hospital  Sei~vices  Commission 

only  and  do  not  include  the  costs  of  any  other  pro 

ceeding  w 

mission/'^ 


ceeding  without  the  written  consent  of  the  Com- 


This  regulation  creates  a  strange  statutory  relationship 
of  solicitor  and  client  between  the  Commission  and  the 
solicitor  acting  for  an  insured  person.  A  member  of  a  manda- 
tory group  must  be  insured  under  the  hospital  insurance 
plan.  If  he  is  injured  through  the  negligence  of  another  and 
brings  an  action  to  recover  damages,  his  solicitor  must  take 
instructions  from  tw^o  clients  in  the  same  cause.  The  relation- 
ship wath  the  personal  client  is  on  a  contractual  basis  and  the 
relationship  with  the  Commission  is  on  a  statutory  basis. 
The  right  of  recovery  depends  on  w^hether  there  is  negligence 
on  the  part  of  the  defendant  and  in  many  cases  the  apportion- 
ment of  negligence  between  the  plaintiff  and  the  defendant 
is  important.  That  a  solicitor  should  be  put  in  the  position 
of  having  to  take  instructions  from  and  advise  tw^o  clients  — 
one  on  a  contractual  basis  and  the  other  on  a  statutory  basis 
—  is  wrong  in  principle  and  an  invasion  of  the  true  solicitor 
and  client  relationship. 

A  case  was  drawn  to  our  attention  where  the  solicitor  had 
brought  an  action  to  recover  substantial  damages  and  the 
amount  paid  through  the  Commission  for  hospitalization  was 
also  substantial.  In  the  solicitor's  opinion  there  were  degrees 
of  fault  which  should  be  apportioned  between  the  individual 
plaintiff  and  the  defendant,  and  he  so  advised  his  personal 
client.  A  settlement  of  the  claim  for  personal  injuries  was 
tentatively  agreed  upon  on  the  basis  of  the  agreed  apportion- 
ment of  fault  and  the  personal  client  washed  to  accept  settle- 
ment but  the  Commission  refused  to  agree  to  it.  By  reason 
of  the  statute,  the  solicitor  could  not  withdraw  as  solicitor 
for  the  Commission  and  leave  it  to  carry  on  the  action  with 
risk  as  to  costs.  The  client  w^as  left  in  the  position  that  he  had 
to  carry  on  the  action  with  risk  as  to  costs.  Eventually,  the 
Commission,  upon  being  requested  to  indemnify  the  client 
against  this  risk,  capitulated  and  the  action  w^as  settled. 

In  such  cases  the  party  has  only  two  courses  of  action 
open  to  him:  (1)  to  pay  the  Commission  the  full  amount  of 

"O.  Reg.  1/67,  s.  52(2)  (3)  (4)  (5)  (6)  (7)  (8).  Italics  added. 


Chapter  122         1969 

the  hospital  bill  to  which  it  is  not  entitled  because  the 
insurance  is  not  contingent  on  a  claim  against  a  third  party 
being  successful,  or  (2)  to  carry  on  the  action  with  the  risk 
of  losing  a  part  or  the  full  amount  of  his  claim.  In  the  latter 
case  the  Commission  only  becomes  liable  for  its  proportion 
of  the  costs  based  on  the  assessed  amount  of  the  damages. 

It  is  an  unjust  encroachment  on  the  rights  of  an  indi- 
vidual that  he  should  be  deprived  of  the  right  to  act  on  the 
advice  of  his  solicitor  in  the  settlement  of  an  action. 

This  regulation  should  be  amended  to  permit  a  solicitor 
to  w^ithdraw  as  solicitor  for  the  Commission  where  there  is 
any  difference  between  the  instructions  received  from  the 
individual  client  and  the  Commission  and  to  permit  the 
Commission  to  carry  on  the  action  for  its  claim  on  its  own 
behalf  with  risk  as  to  costs.  In  such  case  the  individual 
plaintiff  could  conduct  the  case  as  he  might  be  advised  and 
the  defendant  would  be  able  to  pay  such  amount  into  court 
in  satisfaction  of  the  Commission's  claim  as  he  might 
be  advised. 

DISCLOSURE  OF  INFORMATION 

The  Act  provides: 

"21.  (1)  No  member  of  the  Commission  and  no  employee 
thereof  shall  be  required  to  give  testimony  in  any 
civil  suit  with  regard  to  information  obtained  by 
him  in  the  discharge  of  his  duties. 
(2)  No  member  of  the  Commission  and  no  employee 
thereof  is  personally  liable  for  anything  done  by  it 
or  him  under  the  authority  of  this  Act,  any  other 
Act  or  any  regulation. 

22.  The   Commission  shall  not  be  required   to   make 

available  for  evidence  in  any  civil  suit  any  informa- 
tion concerning  a  patient  obtained  by  the  Com- 
mission from, 

(a)  the  records  of  a  hospital,  including  a  hospital 
under  section  23;  or 

(b)  a  statement  made  to  inform  the  Commission 
about  an  incident  that  caused  an  insured  person  to 
require  care  and  treatment  in  a  hospital."^" 


"R.S.O.  1960,  c.  176,  ss.  21,  22. 


1970         The  Ontario  Hospital  Services  Commission 

The  provisions  of  these  sections  are  strange  when  read 
with  the  regulation  which  we  have  just  been  considering. 
The  Commission  is  subrogated  to  the  rights  of  an  insured 
person. ^^  Where  an  action  to  recover  damages  is  commenced 
the  solicitor  for  the  plaintiff  is  also  by  statute  the  solicitor  for 
the  Commission,  but  the  Commission  shall  not  be  required 
to  make  available  in  any  civil  suit  any  information  concerning 
the  patient  obtained  by  the  Commission  from  "the  records 
of  a  hospital"  or  "a  statement  made  to  inform  the  Commission 
about  an  incident  that  caused  an  insured  person  to  require 
care  and  treatment  in  a  hospital."  The  Commission  is  in 
reality  if  not  in  form  a  party  to  the  action.  Although  it  may 
have  in  its  possession  evidence  to  show  that  it  has  no  right  to 
recover,  yet  by  statute  it  is  entitled  to  conceal  this  evidence 
from  the  court.  Under  section  35a  of  the  Evidence  Act,^^ 
which  we  shall  discuss  later,  hospital  records,  as  well  as  other 
kinds  of  records,  are  admissible  as  evidence  in  a  civil  court 
of  certain  facts  referred  to  therein.  It  is  hard  to  see  why 
relevant  statements  made  to  the  Commission  by  a  party  to  an 
action  should  not  be  made  available  especially  when  the 
Commission  has  a  financial  interest  in  the  action.  The  Rules 
of  Practice  provide  that  "where  an  action  is  prosecuted  or 
defended  for  the  immediate  benefit  of  a  person  or  a  corpora- 
tion, such  person  or  any  officer  or  servant  of  such  corporation 
may  without  order  be  examined  for  discovery. "^^  Under  this 
statute  an  examination  for  discovery  would  be  futile  as  the 
Commission  may  conceal  from  the  court  relevant  facts  that 
might  well  defeat  its  claim.  There  is  no  reason  why  a  party 
to  an  action  in  which  the  Commission  is  interested  should  not 
have  a  right  to  call  witnesses  from  the  Commission  to  produce 
any  relevant  evidence.  Sections  21(1)  and  22  should  be 
repealed. 

In  any  case,  section  21(1)  which  we  have  quoted  creates  a 
privilege  in  favour  of  members  of  the  Commission  and  its 
employees  with  respect  to  information  obtained  in  the  dis- 
charge of  their  duties  in  relation  to  giving  testimony  in  a  civil 

"O.  Reg.  1/67,  s.  52. 

^^R.S.O.  1960,  c.  125,  s.  35a  as  enacted  by  Ont.  1966,  c.  51,  s.  1  and  amended 

by  Ont.  1968,  c.  36,  s.  1. 
"Rules  of  Practice,  Rule  333. 


Chapter  122         1971 

suit  but  no  restraint  is  put  on  these  persons  from  connnuni- 
cating  the  information  to  others.  It  is  strange  that  while  the 
Commission  is  not  required  to  make  available  evidence  with 
regard  to  information  communicated  to  it  in  court  it  may 
communicate  the  information  obtained  to  anyone.  The  mem- 
bers of  the  Commission  and  its  employees  should  be  required 
to  give  testimony  in  any  civil  suit  with  regard  to  information 
obtained  in  the  discharge  of  their  duties  but  they  should  be 
barred  from  giving  information  so  obtained  unless  required 
to  do  so  by  legal  process. ^^ 

PROTECTION  FOR  MEMBERS  OF  THE 
COMMISSION  AND  ITS  EMPLOYEES 

"No  member  of  the  Commission  and  no  employee  thereof 
is  personally  liable  for  anything  done  by  it  or  him  under  the 
authority  of  this  Act,  any  other  Act  or  regulation."'^  This  is 
an  extraordinarily  wide  protection.  Under  section  12,  w^hich 
we  shall  discuss  later,  in  the  event  of  conflict  betw^een  any 
provision  of  this  Act  and  any  provision  of  any  other  Act,  the 
provision  of  this  Act  prevails.  The  effect  of  section  21  (2), 
when  read  wdth  section  12,  is  to  give  members  of  the  Commis- 
sion protection  from  liability  for  acts  done  under  other  Acts 
or  regulations  that  have  no  relation  w^hatever  to  the  operation 
of  the  Commission.  The  result  is  that  if  a  member  of  the 
Commission  or  an  employee  of  the  Commission  w^as  made 
liable  for  a  WTongful  act  done  under  another  Act  that  had 
nothing  to  do  wdth  the  administration  of  hospital  services  this 
section  would  appear  to  relieve  him  of  liability.  This  sort  of 
legislative  enthusiasm  for  statutory  protection  is  something 
that  should  be  restrained. 

Subject  to  proper  provisions  for  indemnification  we  can 
see  no  reason  w^hy  the  members  of  the  Commission  and  the 
employees  of  the  Commission  should  have  any  greater  protec- 
tion for  acts  done  under  statutory  authority  than  is  given  by 
the  common  law.  We  discuss  liability  of  the  Crown  and 
Crown  agents  in  Chapter  131. 

^*See  Chapter  35  supra. 
"R.S.O.  1960,  c.  176,  s.  21(2). 


1972         The  Ontario  Hospital  Sei~vices  Commission 

CONFLICT  WITH  THE  PROVISIONS 
OF  ANY  OTHER  ACT 

An  extraordinary  feature  of  this  Act  is  that  "in  the  event 
of  conflict  between  any  provision  of  this  Act  and  any  provision 
of  any  other  Act,  the  provision  of  this  Act  prevails". ^^ 

A  statutory  provision  somewhat  similar  to  this  was  dealt 
with  in  Ellen  Street  Estates  Ltd.  v.  Minister  of  Health}"^  In 
this  case  it  was  held  that  such  provisions  only  affect  statutes 
then  in  force  and  do  not  affect  statutes  thereafter  passed  that 
might  contain  conflicting  provisions. 

Lord  Justice  Maugham  said: 

"The  Legislature  cannot,  accordinor  to  our  constitution, 
bind  itself  as  to  the  form  of  subsequent  legislation,  and  it  is 
impossible  for  Parliament  to  enact  that  in  a  subsequent 
statute  dealing  with  the  same  subject  matter  there  can  be  no 
implied  repeal. "^^ 

The  result  is  that  the  provisions  of  the  most  recent  statute 
would  prevail.  Legislation  of  this  character  puts  the  law  in 
great  confusion. 

We  have  referred  to  the  conflict  between  this  Act  and  the 
Evidence  Act.  Under  the  amendment  to  that  Act  passed  in 
1966  hospital  records  are  admissible  as  evidence  in  proper 
cases.  Under  the  regulations  passed  pursuant  to  the  Public 
Hospitals  Act^^  a  hospital  board  is  permitted  to  exhibit  hos- 
pital records  in  response  to  a  subpoena  issued  out  of  a  court-^ 
and  such  records  may  be  admitted  in  evidence  to  the  extent 
that  they  comply  with  the  provisions  of  section  35a  of  the 
Evidence  Act.-^ 

Similar  provisions  with  respect  to  conflict  with  other 
statutes  are  found  in  many  Acts  in  the  hospital  field,  and 
others,  each  claiming  that  in  the  event  of  "conflict  between 
the  provision  of  this  Act  and  any  provision  of  any  other  Act, 
the  provision  of  this  Act  prevails,"  e.g.  the  Sanatoria  for  Con- 
sumptives Act,-^  and  the  Community  Psychiatric  Hospitals 

^V&zU,  s.  12. 

'"[1934]  1  K.B.  590. 

^Uhid.,  597. 

"R.S.O.  1960,  c.  322. 

"OR.R.O.  1960,  Reg.  523,  s.  41. 

""■Adderly  v.  Bremner,  [1968]  1  O.K.  621. 

--R.S.O.  1960,  c.  359,  s.  4. 


Chapter  122         197. S 

Act.-^  I'hc  provisions  in  these  two  staiutes  extend  to  regula- 
tions passed  thereunder  while  under  the  Hospital  Services 
Commission  Act  the  provisions  do  not  extend  to  conflict 
between  the  regulations  passed  thereunder  and  regulations 
passed  under  any  other  Act.  The  permutations  and  combin- 
ations of  legislative  confusion  raised  by  such  provisions  are 
great.  They  should  be  repealed. 

When  a  bill  is  put  before  the  Legislature  for  enactment 
it  should  be  made  clear  to  the  legislators  and  the  members  of 
the  public  what  statutes  are  being  repealed.  7  here  should  be 
no  repeal  by  implication. 

DISPOSITION  OF  FINES 

Fines  recovered  for  offences  under  the  Act  shall  be  paid 
over  to  the  Commission.-^  In  Report  Number  1"^  we  recom- 
mended that  all  fines  imposed  for  the  contravention  of  all  laws 
shall  be  paid  to  the  state  and  form  part  of  the  Consolidated 
Revenue  Fund.  Section  20  of  the  Act  should  be  amended 
accordingly. 

RECOMMENDATIONS 

1.  Section  15(l)(c)  of  the  Act  enabling  regulations  to  be 
made  defining  words  used  in  the  Act  for  the  purposes  of 
the  Act  and  the  regulations  should  be  repealed. 

2.  Section  15(l)(h),  insofar  as  it  enables  regulations  to  be 
made  providing  for  the  discipline  of  patients,  should  be 
repealed. 

3.  O.  Reg.  1/67,  section  52  should  be  amended  to  permit  a 
solicitor  to  withdraw  as  solicitor  for  the  Commission  where 
there  is  any  difference  between  instructions  received  from 
the  individual  client  and  the  Commission  and  in  such  case 
to  permit  the  Commission  to  cany  on  any  action  for  its 
claim  on  its  own  behalf. 

4.  Sections  21(1)  and  22,  respecting  certain  exemptions  from 
giving  evidence  should  be  repealed. 


'Ont.  1960-61,  c.  9,  s.  5. 
'R.S.O.  1960,  c.  176,  s.  20. 
'pp.  913  and  928  supra. 


1974         The  Ontario  Hospital  Services  Commission 

5.  The  members  of  the  Commission  should  be  barred  from 
communicating  information  received  with  reference  to  a 
patient  in  a  hospital  to  anyone  unless  with  the  consent  of 
the  patient  or  required  to  do  so  by  legal  process. 

6.  Section  21(2)  of  the  Act  exempting  members  and  em- 
ployees of  the  Commission  from  personal  liability  should 
be  repealed. 

7.  Subject  to  proper  provisions  for  indemnification  no 
greater  protection  from  civil  liability  should  be  provided 
for  the  members  of  the  Commission  and  its  employees 
than  is  provided  at  common  law.  See  Chapter  131  for  a 
discussion  of  Crown  liability  and  agents  of  the  Crown. 

8.  Section  12  which  provides  that  the  Act  should  prevail  in 
the  event  of  conflict  with  other  statutes  should  be  repealed, 
as  should  similar  provisions  in  other  statutes. 

9.  Section  20  should  be  amended  to  provide  that  fines  levied 
under  the  Act  should  be  paid  into  and  form  part  of  the 
Consolidated  Revenue  Fund. 


CHAPTER  123 


The  Ontario  Human  Rights 
Commission 


INTRODUCTION 

Ihe  provisions  of  the  Ontario  Human  Rights  Code 
establishing  the  Ontario  Human  Rights  Commission  can 
best  be  understood  in  the  light  of  the  historical  development 
of  the  law.  The  first  anti-discrimination  legislation  in  Ontario 
was  passed  in  1944  with  the  enactment  of  the  Racial  Dis- 
crimination Act.^ 

That  was  purely  a  penal  statute  providing  sanctions  for 
the  publication  of  notices,  signs,  symbols,  emblems  or  other 
representations  indicating  discrimination  or  an  intention  to 
discriminate  against  any  person  or  any  class  of  persons  for 
any  purpose  because  of  the  race  or  creed  of  such  person  or 
class  of  persons."  This  legislation  was  followed  in  1951  by  the 
Fair  Employment  Practices  Act,^  and  the  Female  Employees 
Fair  Remuneration  Act^  and  in  1954  by  the  Fair  Accommo- 
dation Practices  Act.^ 

In  1958  the  Ontario  Anti-Discrimination  Commission 
was  established*^  to  advise  the  Minister  in  the  administration 
of  the  three  Acts  which  we  have  just  enumerated  and  to  make 
recommendations  to  the  Minister  designed  to  improve  the 

^Ont.  1944,  c.  51. 
'Ibid.,  s.  1. 
'Ont.  1951,  c.  24. 
♦Ont.  1951,  c.  26. 
'Ont.  1954,  c.  28. 
«Ont.  1958,  c.  70,  s.  2. 

1975 


1976         The  Ontario  Human  RigJits  Couimission 

administration  of  such  Acts  and  "to  develop  and  conduct  an 
educational  programme  designed  to  give  the  public  know- 
ledge of  the  Acts  .  .  .  and  to  promote  the  elimination  of 
discriminatory  practices. "'^ 

In  1962  all  the  antecedent  legislation  was  repealed  by  an 
Act  establishing  the  present  Commission,  a  code  of  human 
rights  and  procedure  for  its  enforcement.^ 

The  Age  Discrimination  Act,  which  is  administered  by 
the  Ontario  Human  Rights  Commission,  was  passed  in  1966.^ 
The  powers  conferred  on  the  Commission  under  that  Act  are 
similar  to  those  conferred  on  it  under  the  Ontario  Human 
Rights  Code. 

The  preamble  to  the  Code  declares  in  broad  language 
its  purpose— 

"Whereas  recognition  of  the  inherent  dignity  and  the  equal 
and  inalienable  rights  of  all  members  of  the  human  family 
is  the  foundation  of  freedom,  justice  and  peace  in  the  world 
and  is  in  accord  with  the  Universal  Declaration  of  Human 
Rights  as  proclaimed  by  the  United  Nations; 

And  Whereas  it  is  public  policy  in  Ontario  that  every  per- 
son is  free  and  equal  in  dignity  and  rights  without  regard 
to  race,  creed,  colour,  nationality,  ancestry  or  place  of  origin; 

And  W^hereas  these  principles  have  been  confirmed  in 
Ontario  by  a  number  of  enactments  of  this  Legislature; 

And  AV^hereas  it  is  desirable  to  enact  a  measure  to  codify 
and  extend  such  enactments  and  to  simplify  their  adminis- 
tration." 

We  adopt  the  language  of  the  Prime  Minister  of  Ontario: 
"the  Ontario  Human  Rights  Code  is  much  more  than  a 
number  of  laws  designed  to  deal  with  a  prejudiced  minority. 
It  is,  rather,  a  set  of  inviolable  principles  to  be  practised  and 
lived  from  day  to  day  by  all  of  us;  not  just  because  the  law 
requires  it,  but  rather  because  enlightened  social  behaviour 
demands  it."^*^ 


'Ihid.,  s.  3. 
«Ont.  1961-62,  c.  93. 
^Ont.  1966,  c.  3. 
'°1969  Office  Consolidation  Ontario  Human  Rights  Code,  1961-62-Preface. 


Clia{j(ryI23  1977 

THE  COMMISSION 

The  Commission  shall  be  composed  of  three  or  more 
members  appointed  by  the  Lieutenant  Governor  in  Council. 
Its  functions  are  stated  to  be, 

"(a)  to  for\vard  the  printiple  that  every  person  is  free  and 
equal  in  dignity  and  rights  without  regard  to  race, 
creed,  colour,  nationality,  ancestry  or  place  of  origin; 

(b)  to  promote  an  imderstanding  of,  acceptance  of  and 
compliance  with  this  Act; 

(c)  to  develop  and  conduct  educational  programmes  de- 
signed to  eliminate  discriminatory  practices  related 
to  race,  creed,  colour,  nationality,  ancestry  or  place  of 
origin."  ^^ 

Apart  from  these  general  functions  the  Commission  may 
itself,  or  through  any  person  designated  by  it  to  do  so,  inquire 
into  the  complaint  of  any  person  that  he  has  been  discrimin- 
ated against  contrary  to  the  Act  and  it  shall  endeavour  to 
effect  a  settlement  of  the  matter  complained  of/^ 

The  Commission  has  no  power  to  initiate  complaints.  It 
is  a  condition  precedent  to  the  exercise  of  its  powers  to 
in\'estigate  that  there  be  a  complaint  by  a  person  "that  he  has 
been  discriminated  against  contrary  to  [the]  Act."  A  person 
other  than  the  victim  cannot  lay  a  complaint.  The  Commis- 
sion may  "inquire  into  the  complaint"  but  it  has  no 
procedural  powers.  It  cannot  compel  the  attendance  of 
witnesses,  the  production  of  documents  nor  can  it  take 
evidence. 

It  has  been  contended  with  some  force  that  where 
possible  a  person  investigating  a  complaint  to  determine 
whether  there  is  probable  cause  for  complaint  ought  not  to 
conduct  negotiations  for  settlement. ^^ 

We  agree  in  principle  that  much  depends,  as  Dean 
Tarnopolsky  has  pointed  out,  on  the  location  of  the  parties 
in  Ontario,  and  we  would  add  the  personality  of  the  investi- 

"Ont.  1961-62,  c.  93,  s.  8. 

^'Ibid.,  s.  12(1). 

^^Tarnopolsky,    The   Iron   Hand   in    the    Velvet    Glove:    Administration    and 

Enforcernent  of  Human  Rights  Legislation  in  Canada,  46  C.B.R.  565  (1968) 

at  577. 


1978  The  Ontario  Human  Rights  Commission 

gator.  We  emphasize  that  the  purpose  of  the  Act  can  best  be 
accomplished  by  an  investigatoi^  procedure  rather  than  by 
an  adversary  one. 

BOARDS  OF  INQUIRY 

If  the  Commission  is  unable  to  effect  a  settlement  of  the 
matter  complained  of,  the  Minister  may  on  the  recommenda- 
tion of  the  Commission  appoint  a  board  of  inquiry  to 
investigate  the  complaint. ^^  Such  a  board  has  all  the  powers 
of  a  conciliation  board  under  section  28  of  the  Labour 
Relations  Act.^^  These  powers  are: 

"(a)  to  summon  and  enforce  the  attendance  of  witnesses  and 
compel  them  to  give  oral  or  written  evidence  on  oath, 
and  to  produce  such  documents  and  things  as  the  board 
deems  requisite  to  the  full  investigation  and  considera- 
tion of  the  matters  referred  to  it  in  the  same  manner 
as  a  court  of  record  in  civil  cases; 

(b)  to  administer  oaths; 

(c)  to  accept  such  oral  or  written  evidence  as  it  in  its  dis- 
cretion deems  proper,  whether  admissible  in  a  court 
of  law  or  not; 

(d)  to  enter  any  premises  Avhere  ^vork  is  being  done  or  has 
been  done  by  the  employees  or  in  which  the  employer 
carries  on  business  or  where  anything  is  taking  place 
or  has  taken  place  concerning  any  of  the  matters  re- 
ferred to  the  board,  and  inspect  and  view  any  work, 
material,  machinery,  appliance  or  article  therein,  and 
interrogate  any  person  respecting  any  such  thing  or  any 
of  such  matters; 

(e)  to  authorize  any  person  to  do  anything  that  the  board 
may  do  under  clause  d  and  to  report  to  the  board 
thereon. "^*^ 

We  shall  deal  with  these  powers  of  compulsion  later. 

The  function  of  the  board  is  to  conduct  an  inquiry  at 
which  the  parties  involved  have  full  opportunity  to  present 
evidence  and  make  submissions.  It  is  empowered  to  make  a 
finding  as  to  whether  a  complaint  is  supported  by  evidence 

"Ont.  1961-62,  c.  93,  s.  13(1). 

^'Ibid.,  s.  13(2). 

^"R.S.O.  1960,  c.  202,  s.  28. 


Chapter  123         1979 

and  if  it  so  finds  it  shall  recommend  to  the  Commission  the 
course  that  ought  to  be  taken  with  respect  to  the  complaint.^'' 

After  the  board  has  made  its  recommendations  the  Com- 
mission may  direct  it  to  clarify  or  amplify  any  of  them.^** 

No  obligation  is  placed  on  the  Commission  to  do  any- 
thing after  it  has  recei\'ed  the  report  of  the  board.  Nor  is  there 
a  statutory  power  conferred  on  it  to  make  a  recommendation 
to  the  Minister  except  by  implication. 

However,  on  the  recommendation  of  the  Commission, 
the  Minister  may  issue  whatever  order  he  deems  necessary  to 
carry  the  recommendations  of  the  board  into  effect,  and  such 
order  is  final  and  shall  be  complied  with  in  accordance  with 
its  terms. ^* 

It  is  to  be  observed  that  in  the  exercise  of  this  powder  it 
is  the  recommendations  of  the  board  that  define  the  substance 
of  the  Minister's  order  and  not  the  recommendation  of  the 
Commission  nor  the  wisdom  of  the  Minister.  He  may  make 
only  such  order  as  he  deems  necessary'  "to  carry  the  recom- 
mendations of  the  board  into  effect." 

ENFORCEMENT 

In  Part  I  of  the  Act  specific  prohibitions  are  set  out.  For 
example,  "No  person  shall  .  .  .  deny  to  any  person  or  class  of 
persons  the  accommodation,  services  or  facilities  available  in 
any  place  to  which  the  public  is  customarily  admitted;  or 
discriminate  against  any  person  or  class  of  persons  wdth  respect 
to  the  accommodation,  services  or  facilities  available  in  any 
place  to  which  the  public  is  customarily  admitted,  because  of 
the  race,  creed,  colour,  nationality,  ancestry  or  place  or 
origin  of  such  person  or  class  of  persons  or  of  any  other  person 
or  class  of  persons."-*'  And  no  person  shall  deny  to  any  person 
or  class  of  persons  occupancy  of  a  commercial  unit  or  any 
self-contained  dwelling  unit  on  like  grounds.-^ 

Every  person  who  contravenes  any  provision  of  the  Act 
or  any  order  made  under  the  Act  is  guilty  of  an  offence  and 

"Ont.  1961-62,  c.  93,  s.  13(3). 

'^Ibid.,  s.  13(5). 

^'Ibid.,  s.  13(6). 

'°Ibid.,  s.  2  as  amended  by  Ont.  1965,  c.  85,  s.  1. 

'^Ibid.,  s.  3,  as  re-enacted  bv  Ont.  1967,  c.  66,  s.  1. 


1980  The  Ontario  Human  Rights  Commission 

liable  to  a  fine  of  not  more  than  S500,  or  if  a  corporation, 
trade  union,  employers'  organization  or  employment  agency, 
to  a  fine  of  not  more  than  $2,000.-- 

No  prosecution  may  be  instituted  under  the  Act  without 
the  consent  of  the  Minister.-^ 

The  scheme  of  the  Act  is  four-fold: 

(1)  through  education  to  develop  and  foster  respect  for 
human  dignity  irrespective  of  race,  creed,  colour,  national- 
ity, ancestry  or  place  of  origin; 

(2)  to  establish  standards  to  be  observed  to  prevent  dis- 
crimination; 

(3)  to  provide  means  of  conciliation  and  understanding 
where  it  is  claimed  that  conduct  falls  below  the  prescribed 
standards;  and 

(4)  to  provide  sanctions  that  may  be  imposed. 

In  the  administration  of  the  Act  the  emphasis  has  been 
rightly  placed  on  education  and  conciliation.  The  area  of 
human  behaviour  covered  by  the  Act  is  a  field  for  law  enforce- 
ment that  has  many  social  aspects  making  it  quite  different 
from  that  covered  by  ordinary  criminal  law.  Respect  for  the 
dignity  of  the  individual  human  being  is  something  that 
cannot  readily  be  enforced  by  sanctions,  although  sanctions 
are  necessary  as  a  last  resort  to  enforce  compliance  w4th 
minimum  standards.  "Human  rights  without  effective  imple- 
mentation are  shadows  without  substance."-^ 

The  inquiry  process  provided  in  the  Act  has  recently 
come  under  some  criticism  with  regard  to  the  rights  of  the 
parties  against  whom  complaints  may  be  made.  To  meet  any 
criticism  further  safeguards  are  required  to  protect  the  rights 
of  all  individuals  affected  by  the  Act. 

As  we  have  said,  w^here  a  board  of  inquiry  has  been  set 
up  it  has  power  to  make  a  finding  of  fact  "that  a  complaint  is 
supported  by  the  evidence."  If  it  so  finds  it  shall  recommend 
to  the  Commission  the  course  that  ought  to  be  taken  with 
respect  to  the  complaint.  This  recommendation  may  cover 

"/6id.,  s.  14,  as  amended  by  Ont.  1968-69,  c.  83,  s.  3.   Italics  added. 
"^Ibid.,  s.  15. 

^*Professor   John    Humphrey:    Report   of    the    53rd    Conference    The    Inter- 
national Law  Association  (1968)— 457. 


Chapter  123         1981 

a  wide  area.  For  example,  it  may  recommend  that  the 
respondent  in  the  proceedings  provide  accommodation  for  the 
complainant  or  give  employment  to  the  complainant  or  it 
may  recommend  that  the  respondent  pay  money  as  compensa- 
tion to  the  complainant. 

The  power  of  the  Minister  to  make  whatever  order  he 
deems  necessary  to  carry  the  reconnncndations  of  a  board  of 
inquiry  into  effect-^  is  a  wide  power  of  a  judicial  nature.  The 
power  is  limited  only  by  what  he  deems  necessary  and  what 
the  board,  not  the  Commission,  recommends  as  "the  course 
that  ought  to  be  taken  with  respect  to  the  complaint." 

When  the  Minister  has  issued  the  order  it  has  the  force 
of  a  penal  enactment.  Every  person  who  contravenes  such  an 
order  is  guilty  of  an  offence  and  liable  to  the  prescribed  fine. 
There  is  no  right  of  appeal  from  the  Minister's  order.  Where 
a  charge  is  laid  based  on  a  failure  to  obey  the  Minister's  order, 
it  is  not  open  to  the  trial  judge  to  inquire  into  the  circum- 
stances on  which  the  Minister's  order  is  based  or  the  justice 
of  the  findings  of  the  board  of  inquiry.  The  only  inquiry  that 
the  judge  can  conduct  in  such  case  would  appear  to  be:  did 
the  Minister  make  the  order  and  was  it  obeyed? 

In  MacKay  v.  Bell  and  the  Ontario  Human  Rights 
Commissions^  Laskin,  J.  A.  writing  the  judgment  of  the 
Court  of  Appeal  referred  to  an  argument  based  on  the  finality 
of  the  Minister's  order  and  said:  "these  issues  do  not  call 
for  determination  here  and  their  importance  makes  it  prudent 
to  defer  decision  on  them  until  they  come  squarely  before 
the  court." 

This  statement  makes  it  quite  clear  that  the  rights  of 
the  persons  concerned  with  the  enforcement  of  the  Act  are 
at  least  obscure  where  they  should  be  made  clear. 

The  statute  has  set  standards  of  behaviour,  but  as  we 
have  indicated  it  would  not  advance  the  purposes  of  the  Act 
that  in  all  cases  prosecution  should  follow  where  there  has 
been  an  alleged  failure  to  meet  those  standards.  The  concilia- 
tion procedure  is  a  procedure  well  designed  to  safeguard  civil 
rights  and  to  protect  individuals  from  unnecessary  prosecu- 

"Ont.  1961-62,  c.  93,  s.  13(6). 

**'[1969]  2  O.R.  709;  [1970]  2  O.R.  672,  leave  to  appeal  to  the  Supreme  Court 
of  Canada  granted. 


1982         The  Ontario  Human  Rights  Commission 

tion.  However,  where  the  conciliation  procedure  fails,  the 
person  accused  of  wrongdoing  should  have  a  clear  right  to 
resort  to  the  ordinary  courts  where  the  issue  of  his  guilt  may 
be  decided  rather  than  his  guilt  being  determined  on  the 
mere  order  of  the  Minister.  It  is  elementary  that  one  against 
whom  a  complaint  has  been  made  should  have  a  right  to  have 
it  established  that  the  findings  of  the  board  were  right  both 
in  fact  and  law. 

If  it  is  desirable  to  give  to  the  Minister  power  to  make 
an  order  in  the  nature  of  a  cease  and  desist  order,  such  order 
should  be  made  enforceable  by  civil  process  and  not  by  con- 
ferring on  the  Minister  legislative  power  to  create  an  offence 
for  a  specific  case  with  no  right  of  appeal.  In  the  civil  proceed- 
ings it  should  be  open  to  the  alleged  offender  to  show  that 
there  Tvas  no  foundation  in  fact  or  law  for  the  Minister's  order. 

Proceedings  in  the  civil  courts  for  a  restraining  order  are 
now  available  under  the  Act-'^  but  only  after  "conviction  for 
a  contravention  of  the  Act." 

Adequate  safeguards  should  be  provided  against  injustice 
to  those  who  are  the  subject  of  a  complaint.  The  principle  of 
"an  iron  hand  in  a  velvet  glove"  has  no  place  in  human  rights 
legislation. 

Dean  Tarnopolsky,  who  has  had  great  experience  in  the 
enforcement  of  the  legislation,  argues  with  much  force  that  it 
should  not  be  an  offence  under  the  Act  to  discriminate.  He 
says:  "Finally,  the  primary  object  of  human  rights  legislation 
is  to  obtain  compliance  through  an  agreed  settlement.  This 
requires  negotiation  and  conciliation.  This  process  is  foreign 
to  criminal  law.  When  the  act  of  discrimination  is  made  a 
crime,  the  whole  process  of  negotiation,  conciliation  and 
settlement  could  be  likened  to  compounding  a  criminal 
offence."-^ 

Dean  Tarnopolsky's  conclusion  is  that  provision  should 
be  made  for  filing  recommendations  of  a  board  with  the 
Supreme  Court  and  they  would  thereupon  be  enforceable  as 
orders  of  the  Supreme  Court. 

"Ont.  1961-62.  c.  93,  s.  17. 

^*Tarnopolsky,    The  Iron  Hand  in   the   Velvet   Glove:   Administration   and 

Enforcement  of  Human  Rights  Legislation  in  Canada,  46,  C.B.R.  565  (1968) 

at  586. 


Chapter  123         198.'} 

On  other  occasions  we  have  criticized  statutes  which 
make  provision  for  filing  orders  of  boards  with  the  Registrar 
of  the  Supreme  Court  and  thereupon  making  them  enforce- 
able as  orders  of  the  Court.  If  orders  are  to  be  enforced  as 
orders  of  the  Supreme  Court  they  should  be  orders  made  by 
the  Supreme  Court.  We  think  the  procedure  we  have  recom- 
mended earlier  is  a  better  one. 

Whether  the  act  of  discrimination  should  be  an  offence 
raises  a  different  matter.  We  entirely  agree  that  the  primary 
object  of  the  legislation  is  to  promote  conciliation,  agreement 
and  goodwill  but  we  firmly  believe  that  it  makes  the  statute 
more  meaningful  to  say  in  express  terms  "thou  shaft  not 
discriminate"  and  to  provide  that  if  you  do  sanctions  will 
follow. 

We  do  not  think  that  the  negotiation,  conciliation  and 
settlement  procedures  are  analogous  to  compounding  a 
criminal  offence. 

This  legislation  is  more  like  health  legislation  than 
criminal  legislation.  There  are  a  great  many  health  statutes 
and  by-laws  designed  to  maintain  health  standards  that  are 
enforced  by  inspection,  warning  and  agreement  to  improve 
facilities  but  these  nevertheless  make  it  an  offence  to  fail  to 
maintain  prescribed  standards. 

No  prosecution  for  an  offence  under  the  Act  shall  be 
instituted  without  the  consent  in  writing  of  the  Minister.-^ 

Provisions  such  as  this  are  not  consistent  with  the  historic 
functions  of  the  Attorney  General  who  is  charged  with  the 
duty  of  law  enforcement  in  the  Province.  The  Minister  of 
Labour  should  not  have  power  to  override  the  power  of  the 
Attorney  General  to  institute  proceedings  for  offences  against 
provincial  statutes.  This  is  especially  true  since  the  Minister  is 
involved  in  the  decision-making  process.  Section  1 5  should  be 
amended  by  adding  thereto  the  words  "or  the  Attorney 
General." 

POWERS  OF  COMPULSION 

Earlier  we  referred  to  the  powers  of  compulsion  con- 
ferred on  the  board  of  inquiry.  The  powers  of  compulsion 

"Ont.  1961-62,  c.  93,  s.  15. 


1984  The  Ontario  Human  Rights  Commission 

may  be  exercised  in  the  same  manner  as  those  of  a  court  of 
record  in  civil  cases.  These  include  power  to  commit  for 
contempt  which  may  be  exercised  by  a  layman  if  appointed 
to  conduct  a  board  of  inquiry  and  by  any  person  "authorized 
to  do  anything  that  the  board  may  do."  This  matter  was 
discussed  fully  in  Report  Number  1.^^  Section  13(2)  of  the 
Act  should  be  repealed  and  provision  should  be  made  for 
enforcement  of  the  board's  orders  with  respect  to  inquiries 
conducted  by  it  by  an  application  to  the  Supreme  Court  for 
an  order  of  committal  in  accordance  with  our  recommenda- 
tion. 

It  has  been  contended  that  on  an  inquiry  under  the  Act 
a  person  may  be  required  to  incriminate  himself.  This  is 
true  but  if  he  is  sufficiently  advised,  he  may  take  advantage  of 
the  provisions  of  the  Evidence  Act. 

If  the  recommendations  made  in  Report  Number  P^ 
concerning  public  inquiries  are  implemented  by  statute  this 
criticism  will  be  fully  met. 

RECOMMENDATIONS 

1 .  Power  should  be  conferred  on  the  Commission  to  consider 
the  report  of  a  board  of  inquiry, 

2.  Consideration  of  the  report  of  the  board  of  inquiry  by  the 
Commission  should  be  a  condition  precedent  to  its  recom- 
mendation to  the  Minister. 

3.  The  Commission  should  have  power  to  alter  or  rescind 
the  recommendation  of  a  board  of  inquiry, 

4.  Any  person  affected  by  the  report  of  a  board  of  inquiry 
should  have  a  right  to  make  submissions  to  the  Commis- 
sion. 

5.  The  Minister's  order  should  be  enforceable  in  the  civil 
courts  where  it  should  be  open  to  the  alleged  offender  to 
show  that  there  was  no  foundation  for  it. 

6.  It  should  not  be  an  offence  punishable  by  a  fine  or 
imprisonment  to  disobey  the  Minister's  order. 

^°p.  441  supra. 
^^p.  440  supra. 


Chapter  123  1985 

Alternatively,  if  it  is  to  be  an  offence  to  disobey  the  Min- 
ister's order,  it  should  be  clearly  stated  in  the  Act  that  the 
accused  on  his  trial  may  avail  himself  of  any  defences  he 
might  have  raised  if  charged  with  having  committed  a 
breach  of  the  statute. 

Section  13  (2)  of  the  Act  which  confers  powers  on  a  board 
of  inquiry  and  persons  authorized  to  exercise  its  powers 
to  make  orders  of  committal  should  be  repealed  and 
provision  made  for  the  enforcement  of  the  board's  orders 
of  compulsion  in  accordance  with  our  recommendations 
made  in  Report  Number  1  (p.  441). 

Section  15  should  be  amended  by  adding  the  words  "or 
the  Attorney  General." 


CHAPTER  124 

The  Ontario  Labour  Relations 
Board 

INTRODUCTION 

Ihe  Ontario  Labour  Relations  Board  is  the  principal 
agency  through  which  the  Province's  policies  respecting 
industrial  relations  are  administered.  Its  responsibilities  and 
powers  are  defined  in  the  Labour  Relations  Act.^ 

The  purpose  of  the  Act  is  to  minimize  industrial  conflict 
by  means  of  collective  bargaining,  or  in  the  language  of  the 
Report  of  the  Royal  Commission  Inquiry  Into  Labour  Dis- 
putes, by  the  introduction  of  "rational  procedures  whereby 
bargaining  or  negotiation  between  employer  and  employees 
of  terms  and  conditions  of  employment  can  be  effected  with 
a  minimum  of  difficulty  or  disturbance."^  As  has  been  recently 
stated  the  introduction  of  collective  bargaining,  "...  can  be 
described  as  the  substitution  of  the  rule  of  law  for  the  rule  of 
men  in  the  work  place.  "^ 

We  are  not  concerned  under  our  Terms  of  Reference 
with  the  policy  of  the  Labour  Relations  Act,  nor  whether  it 
is  adequate  to  fulfil  its  purposes. 

^R.S.O.  1960,  c.  202  as  amended  by  Ont.  1961-62,  c.  68;  Ont.  1962-63,  c.  70; 

Ont.  1964,  c.  53;  Ont.  1966,  c.  76  and  Ont.  1970,  c.  3. 
^Report  of  the   Royal   Commission   Inquiry  Into   Labour   Disputes,    (Rand 

Report),  1968,  12. 
'Canadian  Industrial  Relations;  the  Report  of  the  Task  Force  on  Labour 

Relations,  Privy  Council  Office,  (Ottawa  1968),  96. 

1986 


Chapter  12  f         1987 

In  the  year  1966  1  he  Honourable  Ivan  C.  Rand,  C.C. 
(now  deceased)  was  appointed  a  Royal  Commissioner  with 
terms  of  reiercnce  ".  .  .  to  inquire  into  the  means  ot  eniorce- 
ment  of  the  rights,  duties,  obligations  and  liabilities  of 
employees  and  employers,  individually  and  collectively,  and 
of  trade  unions  and  their  members,  individually  and  col- 
lectively, with  relation  to  each  other  and  to  the  general  public 
or  any  individual  or  section  thereof,  and  the  use  of  strikes, 
cessations  of  work,  lock-outs,  picketing,  demonstrations  and 
boycotts,  whether  lawful  or  unlawful,  in  labour  disputes  and 
to  examine  the  use  of  and  procedures  for  obtaining  injunc- 
tions in  relation  thereto  .  .  .". 

The  Commission  reported  in  August,  1968  concerning 
those  matters  coming  within  the  terms  of  reference.  The 
operation  of  the  Ontario  Labour  Relations  Board  was  not 
dealt  with.  We  are  concerned  particularly  with  the  powers 
conferred  on  the  Board  under  the  Act  and  whether  in  con- 
ferring those  powers  there  has  been  unjustified  encroachment 
on  civil  rights. 

The  Board  has  been  established  for  the  purpose  of 
guaranteeing  freedom  of  association  through  the  certification 
of  trade  unions  as  the  exclusive  bargaining  agents  of  the 
appropriate  bargaining  units  and  compelling  employers  to 
bargain  with  the  certified  agents. 

The  parties  are  required  by  the  Act  to  resort  to  concilia- 
tion procedures  before  a  strike  or  a  lockout  can  lawfully  be 
used  as  economic  weapons  in  a  dispute.  When  a  collective 
agreement  is  made  it  must  provide  for  the  settlement  of 
disputes  by  arbitration  without  stoppage  of  work  during  the 
currency  of  the  agreement. 

In  Report  Number  1,  in  discussing  the  limits  of  our 
Terms  of  Reference,  we  made  it  clear  that  we  did  not  deal 
with  breaches  of  the  law  not  associated  with  the  exercise  of 
governmental  powers.  "Our  Terms  of  Reference  limit  us  to 
encroachments  by  government  or  by  bodies  exercising  govern- 
mental powers."^  Our  discussion  of  the  Labour  Relations  Act 
must  be  read  in  the  light  of  these  limits. 

*p.  10  supra. 


1988  The  Ontario  Labour  Relations  Board 

STRUCTURE  OF  THE  BOARD 

The  composition  of  the  Board  purports  to  reflect  the 
interests  that  may  be  affected  by  its  decisions— the  public, 
labour  and  management.  The  members  of  the  Board  are 
appointed  by  the  Lieutenant  Governor  in  Council.  "The 
Board  shall  be  composed  of  a  chairman,  one  or  more  vice- 
chairmen  and  as  many  members  equal  in  number  represent- 
ative of  employers  and  employees  respectively  as  the 
Lieutenant  Governor  in  Council  deems  proper  .  .  .".^ 

The  Lieutenant  Governor  in  Council  designates  one  of 
the  vice-chairmen  to  be  the  alternate  chairman,  and  the  chair- 
man or  in  his  absence  the  alternate  chairman  assigns  the 
members  of  the  Board  to  its  various  divisions,  e.g.,  the 
construction  industry  division  which  deals  with  matters 
related  to  the  specialized  problems  in  collective  bargaining 
peculiar  to  the  construction  industry.® 

The  Board  is  empowered  to  sit  in  two  or  more  divisions 
simultaneously  provided  that  a  quorum  of  the  Board  is 
present  in  each  division.'  In  accordance  with  the  tripartite 
nature  of  the  Board,  the  Act  provides  that  the  "chairman  or 
a  vice-chairman,  one  member  representative  of  employers  and 
one  member  representative  of  employees  constitute  a  quorum 
and  are  sufficient  for  the  exercise  of  all  the  jurisdiction  and 
powers  of  the  Board. "*^  A  decision  of  the  majority  of  the 
members  present  and  forming  a  quorum  is  the  decision  of 
the  Board.  Somewhat  inconsistently  it  is  provided  that,  in  the 
event  of  a  tie  vote,  the  presiding  member  has  a  casting  vote.^ 

Presumably  this  provision  is  intended  to  deal  with  the 
rare  occurrences  when  the  Board  may  be  sitting  in  even  num- 
bers, there  being  no  requirement  of  the  kind  sometimes  found 
in  the  constitution  of  tribunals  composed  of  more  than  one 
person,  that  hearings  take  place  before  an  uneven  number  of 
members.^" 


"R.S.O.  1960,  c.  202,  s.  75(2),  as  amended  by  Ont.  1966,  c.  76,  s.  28(1). 
'Ibid.,  s.  75(2a)(3)(3a),  as  amended  by  Ont.  1961-62,  c.  68,  s.  10(1)  and  Ont. 
1966,  c.  76,  s.  28. 
Ubid.,  s.  75(7). 

Hbid.,  s.  75(6)  as  amended  by  Ont.  1966,  c.  76,  s.  28(5). 
"Ibid.,  s.  75(8). 
"See  for  example  the  Judicature  Act,  R.S.O.  1960,  c.  197,  s.  40(1). 


Chapter  12  f         1989 

In  expressing  the  representative  aspect  of  the  composi- 
tion of  the  Board,  the  Act  makes  reference  to  representatives 
of  employers  and  employees.  Tlie  fact  of  public  representation 
is  indicated  only  by  inference  from  the  requirement  that  there 
must  be  a  chairman  and  one  or  more  vice-chairmen  as  well  as 
the  representatives  mentioned. 

The  extent  to  which  the  chairman  and  the  vice-chairmen 
can  be  said  to  be  truly  representative  of  the  public  is  qualified. 
At  the  time  of  writino;  the  Board  is  composed  of  16  members, 
five  representinof  employers,  five  representing  employees,  the 
chairman,  the  alternate  chairman  (one  of  the  vice-chairmen  so 
desienated  by  the  Lieutenant  Governor  in  Council  pursuant 
to  the  provisions  of  the  Act)  and  four  other  vice-chairmen.*^ 
In  actual  practice  the  chairman  and  all  the  vice-chairmen, 
though  full-time  employees  and  thus  civil  sei'V'ants,  are  mem- 
bers of  the  legal  profession. 

Whenever  the  Board  sits  in  divisions,  as  it  customarily 
does,  each  division  is  presided  over  by  one  of  the  chairmen  or 
vice-chairmen  thus  assuring  the  presence  of  a  lawyer  during 
the  hearings  and  deliberations  of  the  divisions.  We  think  this 
is  a  good  practice.  However,  since  the  intention  appears  to 
be  that  there  should  be  members  on  the  Board  to  represent 
the  public  and  not  merely  members  of  the  public  who  are 
employers  and  employees,  it  may  be  said  that  by  confining  the 
third-party  membership  to  members  of  the  legal  profession 
the  public  is  not  sufficiently  represented.  We  do  not  think  that 
this  is  a  valid  contention.  In  the  first  place  the  provision  for  a 
representative  capacity  of  the  members  of  the  Board  is  not 
intended  to  bring  to  the  Board  biased  judgment  but  to  bring 
informed  points  of  view  so  that  an  unbiased  but  informed 
collective  judgment  may  be  brought  to  bear  in  the  decision- 
making process.  A  law^yer  by  education  and  training  is 
uniquely  equipped  to  discharge  the  responsibilities  involved 
in  presiding  over  hearings  and  deliberations  required  under 
the  Act— w'hen  we  bear  in  mind  the  principles  relating  to 
hearings  and  decision-making  outlined  in  Report  Number  1. 
The  constant  presence  and  participation  of  representatives  of 

"R.S.O.  I960,  c.  202,  s.  75(2a)  as  enacted  by  Ont.  1966,  c.  76.  s.  28(2). 


1990         The  Ontario  Labour  Relations  Board 

stated  interests  is  a  real  safeguard  against  an  unduly  legalistic 
approach  on  the  part  of  the  legally-trained  members. 

Provision  is  made  for  the  Board  to  have  a  seaP-  and  a 
secretariat  including  a  registrar  who,  under  the  Board's  prac- 
tice, is  its  chief  administrative  officer.^^  While  the  office  of  the 
Board  is,  by  statute,  in  Toronto,  it  is  empowered  to  sit  at  such 
other  places  as  it  deems  expedient. ^^   This  power  it  exercises. 

Each  member  of  the  Board  is  required  to  take  an  oath  of 
office,  in  a  prescribed  form,  that  he  will  perform  his  office  to 
the  best  of  his  judgment,  skill  and  ability,  and  will  maintain 
secrecy  in  matters  brought  before  the  Board. ^^  This  latter 
obligation  is  amplified  by  extensive  provisions  in  the  Act 
relating  to  secrecy  and  immunity  from  being  required  to 
reveal  certain  information  obtained  in  discharge  of  duties 
under  the  Act.  This  ive  shall  deal  with  in  due  course. 

POWERS  OF  DECISION 

Upon  an  application  by  a  trade  union  at  the  times  and 
under  the  circumstances  set  out  in  the  Act,  the  Board^®  must 
consider  and  determine  whether  the  applicant  trade  union 
shall  be  certified  as  the  bargaining  agent  for  the  employees 
in  a  bargaining  unit  in  respect  of  which  the  application  is 
made.  After  certification  the  union  is  required  to  give  the 
employer  notice  in  writing  of  its  desire  to  bargain  with  a  view 
to  making  a  collective  agreement. ^"^  When  this  notice  has  been 
given,  the  parties  are  under  a  legal  obligation  to  bargain  in 
good  faith  and  make  every  reasonable  effort  to  make  a  collec- 
tive agreement.  ^^ 

The  fundamental  importance  of  the  Board's  function  in 
certification  proceedings  lies  in  the  result  that  flows  from  a 
successful  application  for  certification  followed  by  a  collective 
agreement.  The  traditional  law  relating  to  the  relationship 

"/&?rf.,  s.  75(12). 

^^Ihid.,  s.  75(10). 

"7b?d.,  s.  75(13). 

^^Ihid.,  s.  75(5)  as  amended  by  Ont.  1966,  c.  76,  s.  28(4). 

"/fojrf.,  s.  5  as  amended  by  Ont.  1966,  c.  72,  s.  2. 

^Uhid.,  s.  11. 

"/&?U,  s.  12. 


Chapter  124  1991 

between  employer  and  employee  is  almost  entirely  displaced,^" 
For  example,  for  as  long  as  the  union  continues  to  be  entitled 
to  represent  the  employees  in  a  bargaining  unit  the  employer 
may  not  bargain  with  or  enter  into  a  collective  agreement 
with  any  person  or  another  union  which  would  bind  any  of 
the  employees  in  the  bargaining  unit.^*' 

Even  where  no  collective  agreement  is  in  operation,  but 
where  notice  to  bargain  has  been  given  by  a  certified  trade 
union  under  the  provisions  of  the  Act,  the  employer  is 
prohibited  from  altering  the  rates  of  wages  or  any  other  term 
or  condition  of  employment  or  any  right,  privilege  or  duty  of 
any  of  the  parties,  without  the  consent  of  the  union,  until  a 
specified  period  has  elapsed  after  the  report  of  a  conciliation 
board  or  mediator  or  the  Minister  has  indicated  his  decision 
not  to  appoint  a  conciliation  board  or  vnitii  the  representation 
right  of  the  union  has  been  terminated,  whichever  occurs 
first.-^ 

The  intervention  of  the  Board  is  not  an  absolute  condi- 
tion precedent  to  the  creation  of  a  collective  bargaining 
relationship  between  an  employer  and  a  union.  Even  in  the 
absence  of  certification  by  the  Board,  it  is  open  to  an  employer 
to  confer  recognition  on  a  union  as  the  bargaining  agent  of 
his  employees  voluntarily  by  concluding  a  collective  agree- 
ment w^th  the  union. -^  The  potential  danger  inherent  in 
voluntary  recognition  has  been  pointed  out  recently.  "One 
of  the  risks  of  voluntary  recognition  is  that  is  is  susceptible  to 
abuse  by  the  parties  to  the  recognition  for  the  purpose  of 
precluding  certification  of  another  union;  this  in  turn  creates 
the  risk  of  'sweetheart'  agreements. "^^  It  was  undoubtedly 
with  a  view  to  averting  this  danger  that  the  Act  was  amended 

^^Syndicat  Catholique  des  Employes  de  Magasins  de  Quebec  Inc.  v.  Cie  Paquet 
Ltee  [1959]  S.C.R.  206;  K.M.A.  Caterers  Ltd.  v.  Howie  [1969]  1  O.R.  131. 
The  qualification  introduced  by  the  word  "almost"  results  from  a  consider- 
ation of  svich  decisions  as  Re  Grottoli  v.  Lock  &  Son  Ltd.,  [1963]  2  O.R. 
254  and  Hamilton  Street  R.  Co.  v.  Northcott  [1967]  S.C.R.  3.  The  limited 
nature  of  this  qualification  is  demonstrated  by  the  decisions  in  Close  v.  Globe 
and  Mail  Ltd.  [1967]  1  O.R.  235;  R.  v.  Fuller  et  al,  Exp.  Earles  and  McKee 
[1967]  1  O.R.  701  aff'd.  [1968]  2  O.R.  564,  and  Adcock  et  al  v.  Akoma 
Steel  Corp.  Ltd.,  et  al  (1968),  70  D.L.R.  (2d)  246. 

""R.S.O.  1960,  c.  202,  s.  51(1). 

'^Ibid.,  s.  59(1)  as  amended  by  Ont.  1964,  c.  76,  s.  22. 

"Ibid.,  s.  13(3). 

^'Report  of  the  Task  Force  on  Labour  Relations.  142 


1992  The  Ontario  Labour  Relations  Board 

in  1964  to  add  a  provision^"*  empowering  the  Board,  where  an 
agreement  has  been  concluded  between  an  employer  and  an 
uncertified  union,  upon  the  application  of  an  employee  or  a 
union  representing  an  employee,  during  the  first  year  of  the 
period  of  time  that  the  first  collective  agreement  is  in  opera- 
tion, to  declare  that  the  union  was  not  entitled  to  represent 
the  employees  in  the  bargaining  unit  at  the  time  the  agree- 
ment was  made.  Such  a  declaration  may  be  made  on  an 
application  by  the  second  union  for  certification.-^ 

The  Act  sets  out  various  duties  of  the  Board  relating 
to  the  conduct  of  certification  proceedings.  These  include  the 
determination  of  the  unit  of  employees  that  is  appropriate 
for  collective  bargaining,  the  ascertaining  of  the  number  of 
employees"^  in  the  bargaining  unit  both  at  the  time  the  appli- 
cation is  made  and  the  "terminal  date"  for  the  application, 
i.e.  the  date  as  of  "^vhich  evidence  of  membership  in  a  union 
or  of  objection  by  employees  to  certification  of  the  union 
must  be  presented  to  the  Board,  and  the  directing  of  a  repre- 
sentation vote-'  if  the  Board  is  satisfied  that  not  less  than  45 
percent  and  not  more  than  55  percent  of  the  employees  in  the 
bargaining  unit  are  members  of  the  union. -^ 

In  addition  to  positive  duties  imposed  on  the  Board  in 
the  certification  process,  the  Act  provides  for  duties  of  a  nega- 
tive kind.  The  Board  shall  not  include  security  guards  in  a 
bargaining  unit  with  other  employees  and  the  Board-^  shall 
not  certify  a  union  if  an  employer  or  employers'  organization 
has  participated  in  its  formation  or  administration  or  has 
otherwise  supported  it  or  if  the  union  discriminates  against 
any  person  because  of  his  race,  creed,  nationality,  ancestry 
or  place  of  origin. ^°  In  the  exercise  of  its  certification  powers 
the  Board  has  considerable  discretion.  For  example,  it  may 
conduct  a  vote  of  employees  for  the  purpose  of  ascertaining 

"R.S.O.  1960,  c.  202,  s.  45a  as  enacted  by  Ont.  1964,  c.  53,  s.  5. 

^^R.    V.    Ontario    Labour   Relations    Board    ex    parte    Lakehead    Registered 

Nursing  Assistants  etc.,  [1969]  2  O.R.  597. 
'"R.S.O.'l960,  c.  202,  s.  6.    See  also  s.  92  as  enacted  by  Ont.  1961-62,  c.  68,  s. 

16  for  the  specialized  problem  of  the  construction  industry. 
^Ubid.,  ss.  7(1)  and  77(2)(j)  and  see  the  Board's  Rules  of  Procedure,  O.  Reg. 

264/66,  ss.  2,  48. 
'^Ibid.,  s.  7(2).  See  Ont.  1970,  c.  85,  s.  5,  not  yet  proclaimed  (35  percent  and 

65  percent). 
''Ibid.,  s.  9. 
^"Ibid.,  s.  10. 


Chapter  12/         1993 

the  wishes  of  the  employees  as  to  the  appropriateness  of  the 
bargaining  iniit  claimed  by  the  applicant  iniion/^'  Provided  it 
is  satisfied  that  more  than  50  percent  of  the  employees  in  the 
bargaining  iniit  are  members  of  the  union  and  that  the  true 
wishes  of  the  employees  are  not  likely  to  be  disclosed  by  a  repre- 
sentation vote,  it  may  certify  a  iniion  without  taking  a  repre- 
sentation vote^"  notwithstanding  the  general  requirement  that 
it  shall  direct  such  a  vote  where  it  is  satisfied  that  not  less  than 
45  percent  and  not  more  than  55  percent  of  the  employees  in 
the  bargaining  unit  are  members  of  the  trade  union. ^'^ 

Since  the  prevention  of  discouragement  of  industrial 
conflict  is  one  of  the  cornerstones  of  labour  policy,  the  Act 
provides  that  every  collective  agreement  must  provide  that 
the  union  is  recognized  as  the  exclusive  bargaining  agent  of 
the  employees  in  the  bargaining  unit  defined  in  the  agree- 
ment,^^ that  during  the  term  of  the  agreement  there  shall  be 
no  strikes  or  lock-outs^^  and  that  all  differences  between  the 
parties  arising  from  the  interpretation,  application,  admin- 
istration or  alleged  violation  of  the  agreement,  including  any 
question  as  to  whether  a  matter  is  arbitrable  shall  be  settled 
by  arbitration.  Any  agreement  which  does  not  contain  such 
an  arbitration  provision  is  deemed  to  contain  one  in  the 
statutory  form  set  out  in  the  Act.^^  If  an  agreement  omits 
a  recognition  provision  or  a  provision  against  strikes  and 
lock-outs  or  if  the  arbitration  provision  is  inadequate  or  the 
statutory  form  unsuitable,  the  Board  is  empowered,  on  the 
application  of  either  party,  to  add  such  a  provision  or,  in  the 
case  of  an  arbitration  provision,  to  modify  it.^' 

Other  duties  of  the  Board  include  hearing  applications 
of  employers  and  employees  in  the  bargaining  unit  for  a 
declaration  that  a  trade  union  no  longer  represents  the 
employees  in  the  bargaining  unit,^^  applications  respecting 

'Wbid.,  s.  6(1). 
''Ibid.,  s.  7(5). 
^^Ibid.,  s.  7(2).  See  Ont.  1970,  c.  85,  s.  5,  not  yet  proclaimed  (35  percent  and 

65  percent). 
'*Ibid.,  s.  32. 
''Ibid.,  s.  33. 
'"Ibid.,  s.  34(1)  (2). 
''Ibid.,  ss.  32(2),  33(2),  34(3).  See  Ont.  1970,  c.  85,  not  vet  proclaimed,  ss.  10, 

11,  12. 
'^Ibid.,  s.  43  as  amended  by  Ont.   1966,  c.  76,  s.  16;  s.  44;  s.  45  as  amended 

by  Ont.  1964,  c.  53,  s.  4. 


1994         The  Ontario  Labour  Relations  Board 

successor  rights,^*^  applications  for  a  declaration  that  a  strike 
or  a  lock-out  is  unlawful,^"  and  applications  for  the  consent  of 
the  Board  to  institute  a  prosecution  for  an  offence  under  the 
Act.^^ 

In  considering  the  Ontario  Human  Rights  Commission 
we  made  reference  to  the  provision  in  the  governing  Act  that 
a  prosecution  under  it  could  be  commenced  only  with  consent 
in  writing  of  the  Minister  (i.e.  the  Minister  of  Labour). ^^ 
There  we  pointed  out  that  such  a  provision  is  inconsistent 
with  the  historic  functions  of  the  Attorney  General.  In  that 
case  the  Minister  of  Labour  was  put  in  a  superior  position  to 
the  Attorney  General  in  law  enforcement. 

The  provision  that  no  prosecution  may  be  instituted  for 
an  offence  under  the  Labour  Relations  Act  without  consent 
in  writing  of  the  Board  not  only  removes  the  Attorney  General 
from  the  control  of  this  field  of  law  enforcement  but  all 
Ministers  of  the  Crown.  It  is  quite  inconsistent  with  minis- 
terial responsibility  that  the  Board  should  have  control  over  a 
segment  of  law  enforcement  in  the  Province.  It  may  be  that 
before  an  information  may  be  laid  charging  an  offence  under 
the  Act  the  consent  of  either  the  Minister  of  Labour  or  the 
Attorney  General  should  be  required.  But  if  the  Executive 
considers  that  a  prosecution  should  be  instituted,  leave  of  the 
Board  should  not  be  required.  In  any  case,  if  the  Attorney 
General  believes  that  a  prosecution  should  be  instituted  in  the 
public  interest  his  power  to  act  should  be  unrestrained. 

The  Board  is  given  very  important  powers  to  act  with 
respect  to  complaints  of  discrimination  against,  or  the  penaliz- 
ing of,  any  person  for  exercising  rights  under  the  Act  and  with 
regard  to  jurisdictional  disputes  between  unions. 

Orders  or  directions  of  the  Board  in  the  exercise  of  these 
powers  may  be  filed  in  the  office  of  the  Registrar  of  the 
Supreme  Court  "whereupon  the  determination  shall  be 
entered  in  the  same  way  as  a  judgment  or  order  of  that  court 
and  is  enforceable  as  such."^^ 


""Ibid.,  ss.  47  and  47a.  as  enacted  by  Ont.  1962-63,  c.  70,  s.  1  and  amended 

by  Ont.  1966,  c.  76,  s.  18(1)(2). 
*°Ibid.,  ss.  67,  68. 
"/6?rf.,  s.  74(1). 

"Chapter  123,  pp.  1980-83  supra. 
"R.S.O.   1960,  c.  202  s.  65(5)  as  re-enacted  by  Ont.   1961-62,  c.   68,  s.  8(2); 

s.  66(4)(5)  as  re-enacted  by  Ont.  1966,  c.  76,  s.  25. 


Chapter  12-i         1995 

We  have  had  occasion  to  criticize  provisions  of  this  sort 
in  other  statutes.  The  records  books  ot  the  Supreme  Court 
of  Ontario  are  for  the  records  of  the  Court,  not  for  records 
of  tribimals  that  have  notliing  to  do  with  the  Court.  Board 
orders  are  not  orders  of  the  Court.  They  are  orders  of  the 
Board  or  persons  empowered  to  make  them  and  should  be 
enforced  as  such  and  not  as  orders  of  a  court  which  did  not 
make  them. 

Orders  and  directions  made  under  the  Act  should  be 
filed  with  the  Registrar  of  the  Board  and  when  filed  should 
be  made  enforceable.  If  an  order  is  for  the  payment  of  money 
it  should  be  enforced  by  filing  it  with  the  sheriff  and  it 
should  have  the  same  effect  as  an  order  or  judgment  of  a 
court.  If  it  is  an  order  to  do  or  refrain  from  doing  anything, 
it  should  be  enforced  by  a  summary  application  to  the  court 
where  the  party  affected  should  have  an  opportunity  to  pre- 
sent argument  justifying  his  failure  to  obey  the  order. 

POWERS  OF  INVESTIGATION 

The  Board  has  power  to  summon  and  enforce  the 
attendance  of  witnesses,  to  compel  them  to  give  oral  or 
written  evidence  on  oath  and  to  compel  production  of  such 
documents  and  things  as  the  Board  considers  requisite  for 
the  full  investigation  and  consideration  of  matters  within  its 
jurisdiction  in  the  same  manner  as  a  court  of  record  in  civil 
cases.  It  has  pow'er  to  administer  oaths  and  to  accept  such 
oral  or  written  evidence  as  it  in  its  discretion  deems  proper, 
whether  or  not  admissible  in  a  court  of  law."*^ 

This  power  gives  the  Board  power  to  commit  for  con- 
tempt. The  same  power  is  conferred  on  a  conciliation  board, '*^ 
a  mediator,**'  an  arbitrator*^  and  on  any  person  authorized  by 
the  Board. "^^  We  dealt  with  powers  of  committal  such  as  this 
in  Report  Number  V^  and  there  recommended  the  provi- 
sion that  should  be  made  for  the  enforcement  of  orders  of 
tribunals    exercising    powers    of    compulsion.     The    Public 

*'Ihid.,  s.  77(2)(a)(b)(c). 
*^Ihid.,  s.  28(a). 
"7&jrf.,  s.  30(2)(3). 
'Ubid.,  s.  34(7). 
'^Ihid.,  s.  77(2)(g). 
"p.  44 Iff.  supra. 


1996  The  Ontario  Labour  Relalio7is  Board 

Inquiries  Act  should  be  amended  to  make  provision  for  the 
enforcement  of  orders  of  compulsion  made  by  tribunals  other 
than  courts  by  an  application  to  the  Supreme  Court  for  an 
order  of  committal. 

The  Labour  Relations  Act  should  be  amended  accord- 
ingly. 

Certain  more  or  less  routine  powers  are  conferred  on 
the  Board  to  enable  it  to  discharge  its  principal  functions. 
These  include  the  power  to  recjuire  persons  or  unions  to 
post  notices  to  ensure  that  notice  of  proceedings  is  given  to 
persons  affected  by  these  proceedings;^^  to  enter  places  of 
employment  to  inspect  work  and  equipment,  to  interrogate 
any  person,  and  post  notices;"^  and  to  conduct  representation 
votes  during  working  hours  therein. ^^ 

POWERS  OF  DELEGATION 

The  Board  may  authorize  any  person  to  exercise  certain 
of  its  powers. ^^  This  power  of  delegation  in  some  respects  is 
clear  and  in  some  respects  it  is  unclear  when  conferred  by 
cross-reference  in  the  statute.  The  relevant  provision  of  the 
Act  reads:  ".  .  .  the  Board  has  power  ...  to  authorize  any 
person  to  do  anything  that  the  Board  may  do  under  clauses 
a  to  f  [of  section  77(2)]  and  to  report  to  the  Board  thereon." 

We  are  particularly  concerned  with  the  powers  conferred 
under  clauses  a  to  c  which  read  as  follows: 

"Without  limiting  the  generality  of  subsection  1,  the  Board 
has  power, 

(a)  to  summon  and  enforce  the  attendance  of  witnesses  and 
compel  them  to  give  oral  or  written  evidence  on  oath, 
and  to  produce  such  documents  and  things  as  the  Board 
deems  requisite  to  the  full  investigation  and  considera- 
tion of  matters  within  its  jurisdiction  in  the  same  man- 
ner as  a  court  of  record  in  civil  cases; 

(b)  to  administer  oaths; 

(c)  to  accept  such  oral  or  ^vritten  evidence  as  it  in  its  dis- 
cretion deems  proper,  Avhether  admissible  in  a  court  of 
law  or  not."^^ 


"R.S.O.  1960,  c.  202,  s.  77(2)(d)  as  re-enacted  by  Ont.  1966,  c.  76,  s.  30(1). 
^Ibid.,  s.  77(2)(e)  as  amended  by  Ont.   1961-62,  c.  68,  s.   12(1)  and  furdier 
amended  bv  Ont.  1966,  c.  76,  s.  30(2). 
^Ibid.,  s.  77(2)(f). 
''Ibid.,  s.  77(2)(g). 
'Ibid.,  s.  77(2). 


Chapter  12  f         1997 

It  is  far  from  clear  what  powers  the  Legislature  intended 
the  Board  should  have  power  to  delegate  to  "any  person". 

As  we  have  pointed  out  earlier,  clause  a  includes  a  power 
to  commit  for  failure  to  obey  an  order  of  the  person  to  whom  a 
power  of  compulsion  is  delegated. 

The  power  of  compulsion  is  to  compel  witnesses  to 
produce  "such  documents  and  things  as  the  Board  deems 
recjuisite  to  the  full  investigation  and  consideration  of  matters 
within  its  jurisdiction."  Under  this  power  of  delegation  does 
the  donee  decide  what  is  requisite  or  does  the  Board  decide 
what  is  requisite  and  then  authorize  the  donee  of  the  power 
to  exercise  the  Board's  powers  of  compulsion? 

In  view  of  the  broad  terms  of  the  power  of  delegation 
"to  do  anything  the  Board  may  do  under  clause  a"  it  would 
appear  that  it  is  the  donee  of  the  power  who  may  "deem" 
what  is  requisite.  The  result  is  that  a  person  over  whom 
the  Executive  has  no  direct  control  may  decide  the  scope  of 
his  investigation  and  consideration  for  the  purposes  of  pro- 
duction. This  may  involve  disclosure  of  intimate  business  and 
personal  relationships  which  may  in  fact  have  little  or  nothing 
to  do  with  the  matter  under  consideration. 

The  powers  of  compulsion  to  be  exercised  by  a  donee  of 
the  Board's  powers  should  be  clearly  defined  by  the  statute. 
We  shall  deal  later  with  safeguards  that  ought  to  be  provided 
with  respect  to  a  report  to  the  Board  and  the  procedure  when 
a  report  is  made. 

In  addition  to  the  powers  of  delegation  with  which  we 
have  been  dealing  the  Board  may  authorize  a  field  officer  to 
inquire  into  a  complaint  that  a  person  has  been  refused 
employment,  discharged,  discriminated  against,  threatened, 
coerced,  intimidated  or  otherwise  dealt  W'ith  contrary  to  the 
Act  as  to  his  employment,  opportunity  for  employment  or 
conditions  of  employment,  or  that  a  person  has  been 
suspended,  expelled  or  penalized  in  any  way  because  he  has 
refused  to  engage  in  or  continue  to  engage  in  a  strike  that  is 
unlaw^ful  under  the  Act.^^ 

A  field  officer  who  is  authorized  to  make  an  inquiry  shall 
report  the  results  of  his  inquiry  to  the  Board. ^"^    The  primary 

''Ibid.,  s.  65  as  re-enacted  by  Ont.  1966,  c.  76,  s.  24(1). 
^"Ibid.,  s.  65(2). 


1998         The  Ontario  Labour  Relations  Board 

purpose  of  this  provision  is  to  establish  machinei^  for  adjust- 
ing complaints.  Where  an  adjustment  cannot  be  made  or 
where  the  Board  deems  it  advisable  to  dispense  with  an  in- 
quiry by  a  field  officer  the  Board  may  itself  inquire  into  the 
complaint.^' 

According  to  the  Board's  Practice  Notes  the  procedure 
to  be  followed  by  the  Board  with  respect  to  the  report  of  a 
field  officer  is  to  establish  a  screening  panel  to  examine  the 
field  officer's  report.  If  it  decides  that  further  inquiry  into 
the  complaint  is  warranted,  the  statements  taken  by  the 
officer  are  to  be  sealed.  The  hearing  panel  of  the  Board  or  the 
hearing  officer  (members  of  the  screening  panel  being  dis- 
qualified in  either  capacity)  are  denied  access  to  the  informa- 
tion so  sealed  and  the  only  evidence  that  the  hearing  panel 
of  the  Board  or  the  hearing  officer  is  to  consider  is  that 
adduced  through  witnesses  at  the  public  hearing  of  the 
complaint.^® 

This  is  a  commendable  practice  to  safeguard  the  rights 
of  the  party  to  a  full  and  fair  hearing.  Although  the  Practice 
Notes  may  be  readily  accessible  for  most  practical  purposes, 
we  think,  generally,  their  contents  should  be  incorporated 
into  the  Rules  of  Procedure.  The  Rules  of  Procedure  are 
law  in  regulation  form  published  in  the  Ontario  Gazette. 
The  Practice  Notes  are  not  law  and  are  not  so  published.  In 
some  respects  the  ease  with  which  Practice  Notes  could  be 
amended  as  compared  with  regulations  may  justify  the  con- 
tinued treatment  of  some  subjects  by  Practice  Note  rather 
than  by  regulation. 

When  the  Statutory  Powers  Rules  Committee  is  estab- 
lished as  recommended  in  Report  Number  1  it  will  be  for 
that  body  to  consider,  after  full  consultation  with  the  Board, 
what  should  be  incorporated  in  the  Rules  and  what  should 
be  mere  Practice  Notes  for  the  guidance  of  those  involved  in 
the  Board's  proceedings. 

The  Board  may, 

".  .  .  authorize  the  chairman  or  a  vice-chairman  to  inquire 
into  any  application,  request,  complaint,   matter  or  thing 

^Uhid.,  s.  65(4)  as  re-enacted  by  Ont.  1966,  c.  76,  s.  24(2). 
^"Practice  Note  No.  1. 


Chapter  12  f         1999 

within  the  jurisdiction  of  the  Board,  or  any  part  of  any  of 
them,  and  report  to  the  Board  thereon."^" 

This  is  a  power  to  inquire  and  report  but 

"Where  the  Board  has  authorized  the  chairman  or  a  vice- 
chairman  to  make  an  inquiry  under  chiuse  li  of  subsection 
2  of  section  77,  his  findinos  and  conchisions  on  facts  are  final 
and  conclusive  for  all  purposes,  but  nevertheless  he  may,  if 
he  considers  it  advisable  to  do  so,  reconsider  his  findings  and 
conclusions  on  facts  and  vary  or  revoke  any  such  finding  or 
conclusion.""" 

These  provisions  aie  a  sort  of  distortion  of  the  inquiry 
procedure  discussed  in  Report  Number  1.*'^  The  donees  of 
the  power  may  not  only  investigate  and  report  but  they  have 
a  power  of  final  decision  with  respect  to  the  facts  for  all 
purposes,  but  the  Board  which  does  not  hear  the  evidence 
and  before  whom  parties  affected  by  the  decision  have  not  a 
right  to  appear  must  apply  the  facts  as  found  and  come  to  the 
final  decision  on  the  matter. 

In  Report  Niunber  1  we  discussed  the  stibject  of  the 
delegation  of  a  power  of  decision*^^  and  pointed  out  that 
the  decision  must  be  a  decision  of  the  members  of  the 
tribinial  empowered  to  decide  and  unless  expressly  or 
impliedly  authorized  to  do  so,  the  members  cannot  delegate 
the  making  of  the  decision  given  to  them  by  statute  to  any 
other  person  or  persons.  The  power  we  have  just  quoted  is  an 
express  powder  conferred  on  the  Board  to  delegate  to  a  chair- 
man or  vice-chairman  power  to  inquire  into  anything  within 
the  jurisdiction  of  the  Board,  and  to  make  the  final  decision. 
The  findings  and  conclusions  of  fact  made  by  the  referee  of 
the  power  are  final  and  conclusive  for  all  purposes,  subject  to 
his  power  to  vary  or  revoke  such  findings  or  conclusions. 

There  is  no  provision  that  a  copy  of  the  report  should 
be  furnished  to  those  affected. 

The  Act  should  require  that  the  referee  give  reasons 
for  his  decision  and  that  a  copy  of  his  report  and  reasons 

"R.S.O.  1960,  c.  202,  s.  77(2)(h)  as  re-enacted  by  Ont.  1961-62,  c.  68,  s.  12(2) 

and  amended  by  Ont.  1966,  c.  76,  s.  30(3). 
'"Ibid.,  s.  79(3)  as  enacted  by  Ont.   1961-62,  c.  68,  s.  13(2)  and  amended  by 

Ont.  1966.  c.  76,  s.  32. 
"pp.  113-14  and  194-200  supra. 
"p.  86  supra. 


2000  The  Ontario  Labour  Relations  Board 

should  be  furnished  to  the  parties  affected  by  it  if  requested 
and  that  any  such  parties  have  a  right  of  appeal  from  the 
findings  of  the  referee  to  the  Board. 

RULES 

Subject  to  the  appro\'al  of  the  Lieutenant  Governor  in 
Council  the  Board  is  given  a  broad  power  to  make  rules.  Some 
confusion  arises  by  reason  of  a  power  conferred  on  the  Lieu- 
tenant Governor  in  Council  to  make  regulations.  No  clear 
distinction  is  apparent  bet^veen  rules  and  regulations.  The 
relevant  powers  conferred  on  the  Board  are: 

"75.  (9)  The  Board  shall  determine  its  OAvn  practice  and 
procedure  but  shall  give  full  opportunity  to  the 
parties  to  any  proceedings  to  present  their  evidence 
and  to  make  their  submissions,  and  the  Board  may, 
subject  to  the  approval  of  the  Lieutenant  Governor 
in  Council,  make  rules  governing  its  practice  and 
procedure  and  the  exercise  of  its  poAvers  and  pre- 
scribing such  forms  as  are  deemed  advisable. 

(9a)  The  Board  may,  subject  to  the  approval  of  the 
Lieutenant  Governor  in  Council,  make  rules  to 
expedite  proceedings  before  the  Board  to  Avhich 
sections  90  to  96  [dealing  with  the  specialized  prob- 
lems of  the  construction  industry]  apply,  and  such 
rules  may  provide  that,  for  the  purposes  of  deter- 
mining the  merits  of  an  application  for  certifica- 
tion to  Avhich  sections  90  to  92  apply,  the  Board 
shall  make  or  cause  to  be  made  such  examination 
of  records  and  such  other  inquiries  as  it  deems 
necessary,  but  the  Board  need  not  hold  a  hearing 
on  such  an  application."^^ 

The  powers  conferred  on  the  Lieutenant  Governor  in 
Council  to  make  regulations  are: 

"The  Lieutenant  Governor  in   Council  may  make  regula- 
tions, 

(f)  prescribing  forms  and  providing  for  their  use,  including 
the  form  in  Avhich  the  documents  mentioned  in  sections 
34,  65  and  66  shall  be  filed  in  the  Supreme  Court; 


"R.S.O.  1960,  c.  202.  s.  75(9)  as  amended  by  Ont.  1961-62,  c.  68,  s.  10(2)  and 
s.  75(9a)  as  enacted  by  Ont.  1961-62,  c.  68,  s.  10(3)  and  amended  bv  Ont. 
1964,  c.  55.  s.  9. 


Chapter  12-t         2001 

(g)  respecting  any  matter  necessary  or  advisable  to  carry  out 
the  intent  and  purpose  of  this  Act."""* 

In  practice,  the  regulations  made  by  the  Lieutenant  Governor 
in  Council  have  been  confined  to  those  concerning  the  filing 
of  financial  statements  respecting  pension  or  welfare  funds 
for  the  benefit  of  employees,  the  remuneration  of  chairmen 
and  members  of  conciliation  boards,  the  remuneration  of 
mediators  and  the  prescribing  of  a  limited  number  of  forms. "^ 
On  the  other  hand,  the  rule-making  power  of  the  Board  has 
been  exercised  in  such  a  manner  as  to  create  what  may  be 
termed  a  comprehensi\'e  code  of  procedure.*"'"  Since  some  of 
the  general  principles  set  out  in  Report  Number  1  have  a 
direct  bearing  on  these  rules  of  procedure  a  brief  consider- 
ation of  the  Board's  practice  is  necessary. 

PRACTICE  OF  THE  BOARD 

A  distinguishing  and  commendable  feature  of  the  Board's 
practice  is  that  there  is  no  difficulty  in  discovering  the  pro- 
cedure that  an  interested  person  must  follow.  The  Board 
makes  a\'ailable,  free  of  charge,  in  convenient  form,  its  Rules 
of  Procedure  and  related  prescribed  forms,  the  Regulations 
made  under  section  88  and  related  prescribed  forms  and 
the  Board's  Practice  Notes.  Little  would  be  accomplished 
by  a  minute  analysis  of  the  Rules  of  Procedure.  They  are 
detailed  and  reasonably  easy  to  understand,  particularly  when 
read  with  the  accompanying  prescribed  forms.  We  are  more 
concerned  with  some  matters  of  practice. 

The  Board  has  attached  importance  to  the  necessity  of 
giving  adequate  notice  of  the  case  to  be  met  to  the  parties. 
Particulars  must  be  given  where  it  is  intended  to  allege 
improper  or  unfair  practices. 

"47.  (1)  "W^here  a  person  intends  to  allege,  at  the  hearing  of 
an  application  or  complaint,  improper  or  irregular 
conduct  by  any  person,  he  shall, 

(a)  include  in  the  application  or  complaint;  or 

(b)  file  a  notice  of  intention  that  shall  contain, 

*'Ihid.,  s.  88(f)(s). 

••"^R.R.O.  1960,  Reg.  399  as  amended  bv  O.  Reg.  337/62,  O.  Reg.  295/66  and 

O.  Reg.  468/69. 
""O.  Reg.  264/66. 


2002         The  Ontario  Labour  Relations  Board 

a  concise  statement  of  the  material  facts,  actions  and 
omissions  upon  which  he  intends  to  rely  as  consti- 
tuting such  improper  or  irregular  conduct,  includ- 
ing the  time  when  and  the  place  where  the  actions 
or  omissions  complained  of  occurred  and  the  names 
of  the  persons  who  engaged  in  or  committed  them, 
but  not  the  evidence  by  which  the  material  facts, 
actions  or  omissions  are  to  be  proved,  and,  where 
he  alleges  that  the  improper  or  irregular  conduct 
constitutes  a  violation  of  any  provision  of  the  Act, 
he  shall  include  a  reference  to  the  section  or  sections 
of  the  Act  containing  such  provision."''^ 

"47.  (4)  No  person  shall  adduce  evidence  at  the  hearing  of 
an  application  or  complaint  of  any  material  fact 
that  has  not  been  included  in  the  application  or 
complaint  or  in  any  document  filed  under  these 
Rules  in  respect  of  the  application  or  complaint, 
except  with  the  consent  of  the  Board  and,  if  the 
Board  deems  it  advisable  to  give  such  consent,  it 
may  do  so  upon  such  terms  and  conditions  as  it 
thinks  advisable."''^ 

These  provisions  make  it  clear  that  ordinarily  evidence 
may  not  be  adduced  on  a  material  fact,  even  by  a  respondent, 
unless  a  written  particularized  allegation  has  been  made. 
Although  the  right  to  cross-examine  witnesses  for  an  opposite 
party  may  be  circumscribed,  the  rule  is  sound  as  it  is  based 
on  the  right  of  an  interested  party  to  know  the  case  to  be  met. 

Although  under  the  Act  the  Board  has  power  to  deter- 
mine its  own  practice  and  procedure  it  shall  give  full  oppor- 
tunity to  the  parties  to  any  proceedings  to  present  evidence 
and  make  their  submissions.^^  The  rules  made  by  the  Board 
provide, 

"46.  (1)  Where  an  application  or  complaint  does  not,  in  the 
opinion  of  the  Board,  make  out  a  prima  facie  case 
for  the  remedy  requested,  the  Board  may  dismiss 
the  application  or  complaint  without  a  hearing  and 
it  shall  in  its  decision  state  the  reason  for  the  dismis- 
sal. 

(2)  The  applicant  or  complainant  may  within  ten  days 
after  he  is  served  with  the  decision  of  the  Board 


'O.  Reg.  264/66.  Rule  47(1). 

nhid..  Rule  47(4). 

'R.S.O.  1960,  c.  202,  s.  75(9),  as  amended  by  Ont.  1961-62,  c.  68,  s.  10(2). 


Chapter  124         2003 

under  sub-section  1  request  the  Board  to  review  its 
decision. 

(3)  A  request  for  review  under  this  section  shall  contain 
a  concise  statement  of  the  facts  and  reasons  upon 
which  the  applicant  relies. 

(4)  Upon  a  request  for  review  beinj^  filed,  the  Board 
may, 

(a)  direct  that  the  application  or  complaint  be  re- 
opened and  proceeded  with  by  the  Board  in 
accordance  with  the  provisions  applicable  there- 
to; 

(b)  direct  the  registrar  to  serve  the  applicant  and  any 
other  person  who  in  the  opinion  of  the  Board 
may  be  affected  by  the  application  or  complaint 
with  a  notice  of  hearing  to  show  cause  why  the 
application  or  complaint  should  be  re-opened; 
or 

(c)  confirm  its  decision  dismissing  the  application 
or  complaint. '"^^ 

Notwithstanding  that  there  is  recent  authority  for  the  propo- 
sition that  the  audi  alteram  partem  rule  does  not  require  that 
there  must  always  be  a  hearing,  but  only  that  the  parties  must 
be  given  an  opportunity  of  putting  forward  their  arguments, ^^ 
it  is  doubtful  that  this  authority  applies  where  a  statute 
expressly  provides  that  the  parties  must  be  given  "full  oppor- 
tunity ...  to  present  their  evidence  and  to  make  their  sub- 
missions." 

There  are,  no  doubt,  cases  where  the  application  or  claim 
may  appear  on  the  face  of  it  to  be  without  foundation  in  law 
or  to  be  trivial  or  vexatious  and  in  such  cases  the  Board 
should  have  power  to  deal  with  such  matters  in  a  summary 
way.  But  we  think  the  rule  should  be  amended  to  read  as 
follows: 

"Where  it  appears  to  the  Board  that  an  application  or  com- 
plaint is  without  foundation  in  law  or  is  frivolous  or  vexa- 
tious the  Board  may  dismiss  the  application  without  a 
hearing,  giving  its  reasons  in  writing  and  notifying  the  appli- 
cant or  complainant  that  he  has  a  right  to  have  the  decision 
reviewed  by  the  Board." 


"O.  Reg.  264/66,  Rule  46. 

^Qiiebec  Labour  Relations  Board  v.  Canadian  Ingersoll  Rand  Co.  Ltd.  et  al 

(1969),  1  D.L.R.  (3d)  417;  Regina  v.  Quebec  Labour  Relations  Board,  ex 

parte  Komo  Construction  7nc.,'(1969)  1  D.L.R.  (3d)  125. 


2004         The  Ontario  Labour  Relations  Board 

Adjournments 

The  Board  may,  if  it  thinks  it  advisable  in  the  interests 
of  justice,  adjourn  any  hearing  for  such  time  and  to  such 
place  and  upon  such  terms  as  it  thinks  fit.'-  This  rule,  having 
the  force  of  law,  gives  the  Board  a  wide  discretion  without 
adequate  standards  to  safeguard  the  rights  of  the  individual. 

In  Report  Number  1  we  recommended  that  generally 
parties  who  may  be  specifically  affected  by  a  decision  should 
be  permitted  such  reasonable  adjournments  asked  for  in  good 
faith  as  may  be  appropriate  in  the  circumstances.'^^  We  think 
such  a  provision  should  apply  to  the  Board. 

Practice  Notes 

Apart  from  the  question  as  to  whether  Practice  Notes 
ought  to  be  an  integral  part  of  the  Board's  Rules  of  Procedure 
the  concept  of  publishing  statements  of  the  Board's  practice 
is  commendable.  Until  recently  the  only  w^ay  in  which  it  was 
possible  to  know  about  certain  of  the  Board's  practices  was  to 
appear  before  it  repeatedly.  This  gave  rise  to  the  complaint 
that  it  might  appear  that  a  party  was  handicapped,  if  not 
prejudiced,  if  he  was  not  represented  by  a  member  of  the  bar 
who  had  specialized  in  labour  law. 

When  the  Board  first  published  practice  notes,  they 
were  distributed  to  persons  known  to  be  interested  in  them 
and  were  available  on  request.  Later  the  Board  published 
these  notes  and  amendments,  as  they  were  prepared,  in  a 
Monthly  Report.  They  now  have  been  consolidated  and 
published  along  -^v^ith  the  Rules  of  Procedure  and  the  Regula- 
tions. This  is  a  useful  and  commendable  procedure. 

Consultation  with  the  Full  Board 

As  a  general  practice  the  Board  reserves  its  decision  and 
notifies  the  parties  by  forwarding  to  them  a  copy  of  the 
decision  and  the  supporting  reasons. 

We  were  advised  by  the  former  Chairman  that  the  nor- 
mal practice  is  for  only  those  members  who  sit  on  the  division 
at  the  hearing  to  participate  in  the  deliberations  prior  to  the 

^^O.  Reg.  264/66,  Rule  57(1). 
^^p.  213  supra. 


Chapter  124         2005 

decision  and  in  all  cases  only  those  members  make  ilic  decision. 
From  time  to  time,  however,  as,  for  example,  when  the  matter 
involves  a  (jiiestion  of  Board  policy,  and  consistency  is  there- 
fore desirable,  or  where  an  unusual  or  diiliculi  ([uestion  of  law 
is  involved,  or  it  appears,  when  one  of  the  members  of  the 
hearing  division  requests  it,  the  matter  is  taken  before  the 
full  Board  in  executive  session  for  discussion.  No  \'oLe  is  taken 
at  the  full  meeting.  The  decision  is  made  by  those  members 
who  were  present  at  the  hearing.  In  Report  Nmnber  1  we 
pointed  out  that  no  person  should  participate  in  a  decision 
of  a  judicial  tribunal  who  was  not  present  at  the  hearing  and 
heard  and  considered  the  evidence  and  that  all  persons  who 
had  heard  and  considered  the  evidence  should  participate  in 
the  decision."^ 

The  practice  we  have  outlined  violates  that  principle. 
To  take  a  matter  before  the  full  Board  for  a  discussion  and 
obtain  the  vie^vs  of  others  who  have  not  participated  in  the 
hearing  and  without  the  parties  affected  having  an  opportunity 
to  present  their  views  is  a  violation  of  the  principle  that  he 
who  decides  must  hear. 

In  dealing  with  a  similar  matter  in  the  Mehr  case,''^ 
Cartwright,  J.,  as  he  was  then,  writing  the  judgment  of  the 
Court,  discussed  the  practice  of  the  Discipline  Committee 
of  the  Law  Society  of  Upper  Canada.  In  that  case  members 
participated  in  the  deliberations  w^io  were  not  present 
throughout  the  hearing.  The  learned  judge  said  that  he  was 
much  impressed  by  the  statement  in  Rex  v.  Huntingdon 
Confirming  Authority"*^  where  the  Court  dealt  with  a  case 
where  justices  who  were  not  present  throughout  the  hearing 
participated  in  the  decision.  Romer,  L.  J.  said: 

'Turther,  I  would  merely  like  to  point  this  out:  that  at  that 
meeting  of  May  16  there  were  present  three  justices  who  had 
never  heard  the  evidence  that  had  been  given  on  oath  on 
April  25.  There  was  a  division  of  opinion.  The  resolution 
in  favour  of  confirmation  was  carried  by  eight  to  two,  and  it 
is  at  least  possible  that  that  majority  ^vas  induced  to  vote  in 


'*p.  220  supra. 

'^Mehr  v.  Law  Society  of  Upper  Canada,  [1955]  S.C.R.  344. 

'"[1929]  1  K.B.  698. 


2006         The  Ontario  Labour  Relations  Board 

the  way  it  did  by  the  eloquence  of  those  members  who  had 
not  been  present  on  April  25,  to  whom  the  facts  were  entirely 
unknown. "^^ 

Notwithstanding  that  the  ultimate  decision  is  made  by 
those  who  w^ere  present  at  the  hearing,  w^here  a  division  of  the 
Board  considers  that  a  matter  should  be  discussed  before  the 
full  Board  or  a  larger  division,  the  parties  should  be  notified 
and  given  an  opportunity  to  be  heard. 

Reasons 

The  former  Chairman  advised  us  that  there  is  an  endorse- 
ment of  the  Board's  decision  in  all  cases  but  they  do  not  always 
give  reasons.  He  said:  "We  try  in  important  cases  where 
there  is  any  policy  of  interpretation  of  the  statute.  Now  w^e 
are  exercising  our  discretion  on  anything  of  that  sort."  If 
requested  the  Board  usually  gives  reasons. 

The  Board  should  be  required  to  give  reasons  in  all  cases, 
if  requested. 

The  Board  publishes  a  Monthly  Report  which  contains 
all  the  decisions  rendered  during  the  month.  These  are  dis- 
tributed free  of  charge.  We  referred  wath  approval  to  this 
practice  in  Report  Number  1,^^ 

JUDICIAL  REVIEW 

There  are  t'^vo  provisions  in  the  Act  which  are  designed 
to  preclude  judicial  review. 

"79.(1)  The  Board  has  exclusive  jurisdiction  to  exercise  the  powers 
conferred  upon  it  by  or  under  this  Act  and  to  determine  all 
questions  of  fact  or  law  that  arise  in  any  matter  before  it, 
and  the  action  or  decision  of  the  Board  thereon  is  final  and 
conclusive  for  all  purposes,  but  nevertheless  the  Board  may 
at  any  time,  if  it  considers  it  advisable  to  do  so,  reconsider 
any  decision,  order,  direction,  declaration  or  ruling  made  by 
it  and  vary  or  revoke  any  such  decision,  order,  direction, 
declaration  or  ruling."^^ 

"80.  No  decision,  order,  direction,  declaration  or  rulinsf  of  the 
Board  shall  be  questioned  or  reviewed  in  any  court,  and  no 
order  shall  be  made  or  process  entered,  or  proceedings  taken 

'Uhid.,  717. 

"'p.  223  supra. 

"R.S.O.  1960,  c.  202,  s.  79(1)  as  re-enacted  by  Ont.  1961-62,  c.  68,  s.  13(1). 


Chapter  124         2007 

in  any  court,  whether  by  way  of  injunction,  declaratory  judg- 
ment, certiorari,  mandamus,  prohibition,  quo  warranto,  or 
otlierwise,  to  question,  review,  prohibit  or  restrain  the  Board 
or  any  of  its  proceedings."^" 

We  dealt  with  clauses  such  as  these  in  Report  Number  1.®* 
The  words  "and  the  action  or  decision  of  the  Board 
thereon  is  final  and  conclusive  for  all  purposes"  should  be 
struck  out  of  section  79(1)  and  section  80  of  the  Act  should  be 
repealed. 

PRIVILEGE 

"81.  No  member  of  the  Board,  nor  its  registrar,  nor  any  of 
its  other  officers,  nor  any  of  its  clerks  or  servants  shall 
be  required  to  give  testimony  in  any  civil  suit  respect- 
ing information  obtained  in  the  discharge  of  their 
duties  under  this  Act."^- 

"83.  (1)  The  records  of  a  trade  union  relating  to  member- 
ship or  any  records  that  may  disclose  whether  a 
person  is  or  is  not  a  member  of  a  trade  union  or 
does  or  does  not  desire  to  be  represented  by  a  trade 
union  produced  in  a  proceeding  before  the  Board 
is  (sic)  for  the  exclusive  use  of  the  Board  and  its 
officers  and  shall  not,  except  with  the  consent  of  the 
Board,  be  disclosed,  and  no  person  shall,  except 
with  the  consent  of  the  Board,  be  compelled  to 
disclose  whether  a  person  is  or  is  not  a  member  of 
a  trade  union  or  does  or  does  not  desire  to  be  repre- 
sented by  a  trade  union. 

(2)  No  information  or  material  furnished  to  or  received 
by  a  conciliation  officer  or  a  mediator, 

(a)  under  this  Act;  or 

(b)  in  the  course  of  any  endeavour  that  a  concilia- 
tion officer  may  make  under  the  direction  of 
the  Minister  to  effect  a  collective  agreement 
after  the  Minister, 

(i)  has   released    the   report   of   a   conciliation 
board  or  a  mediator,  or 

(ii)  has  informed  the  parties  that  he  does  not 
deem  it  advisable  to  appoint  a  conciliation 
board. 


"Ibid.,  s.  80. 

^pp.  277,  1267  supra. 

*R.S.O.  1960,  c.  202,  s.  81. 


2008         The  Ontario  Labour  Relations  Board 

shall  be  disclosed  except  to  the  Minister,  the  Deputy 
Minister  of  Labour  or  the  chief  conciliation  officer 
of  the  Department  of  Labour. 

(2a)  No  report  of  a  conciliation  officer  shall  be  disclosed 
except  to  the  Minister,  the  Deputy  Minister  of 
Labour  or  the  chief  conciliation  officer  of  the 
Department  of  Labour. 

(2fc)The  Minister,  the  Deputy  Minister  of  Labour,  the 
chief  conciliation  officer  of  the  Department  of 
Labour  or  any  conciliation  officer  or  mediator  ap- 
pointed under  this  Act  or  any  person  designated  by 
the  Minister  to  endeavour  to  effect  a  collective 
agreement  is  not  a  competent  or  compellable  witness 
in  proceedings  before  a  court  or  other  tribunal 
respecting  any  information,  material  or  report  men- 
tioned in  subsection  2  or  2fl,  or  respecting  any  in- 
formation or  material  furnished  to  or  received  by 
him,  or  any  statement  made  to  or  by  him  in  an 
endeavour  to  effect  a  collective  agreement. 

(2c)  The  chairman  or  any  other  member  of  a  concilia- 
tion board  is  not  a  competent  or  compellable  witness 
in  proceedings  before  a  court  or  other  tribunal 
respecting, 

(a)  any   information    or   material    furnished    to   or 
received  by  him; 

(b)  any   evidence   or   representation    submitted    to 
him;  or 

(c)  any  statement  made  by  him, 

in  the  course  of  his  duties  under  this  Act. 

(3)  No  information  or  material  furnished  to  or  received 
by  a  field  officer  under  this  Act  and  no  report  of  a 
field  officer  shall  be  disclosed  except  to  the  Board  or 
as  authorized  by  the  Board,  and  no  member  of  the 
Board  and  no  field  officer  is  a  competent  or  com- 
pellable witness  in  proceedings  before  a  court  or 
other  tribunal  respecting  any  such  information, 
material  or  report. "^^ 

These  sections  give  an  unusually  wide  testimonial 
privilege  in  favour  of  members  of  the  Board  and  its  employees. 
As  we  shall  see  presently  a  privilege  is  created  in  cases  where 
there  should  be  no  privilege  and  security  is  not  provided  with 

^Hhid.,  s.  83  as  amended  by  Ont.  1961-62,  c.  68,  s.  14  and  Ont.  1964,  c.  53,  s.  11. 


Chapter  124         2009 

respect  to  information  received  where  there  sliould  be 
security. 

We  deal  first  with  the  members  of  the  Board.  1  hey  are 
without  exception  not  retjuircd  to  gi\'e  testimony  in  any  civil 
suit  "respecting  information  obtained  in  the  discharge  of 
their  duties"  under  the  Act.  Apart  from  the  provisions  of 
section  83,  with  which  we  shall  deal  later,  there  docs  not  seem 
to  be  any  reason  why  the  members  of  the  Board  should  not  be 
compellable  to  give  evidence  in  a  civil  suit  with  respect  to  in- 
formation obtained  in  the  discharge  of  their  duties.  The  hear- 
ings of  the  Board  are  public  and  information  obtained  by 
members  of  the  Board  should  be  available  to  the  courts 
unless  there  is  special  reason  shown  why  it  should  be  privi- 
leged. There  are  special  reasons  why  certain  information 
should  not  be  made  public  and  with  that  we  shall  deal  later. 

Although  members  of  the  Board  are  not  required  to  give 
evidence  in  a  civil  suit  disclosing  information  obtained  by 
them  in  the  discharge  of  their  duties,  there  is  no  pro\'ision 
in  the  statute  expressly  prohibiting  them  from  otherwise 
disclosing  such  information  (other  than  that  contained  in 
the  report  of  a  field  officer),  except  the  oath  of  office  the 
members  of  the  Board  are  required  to  take. 

"Each  member  of  the  Board  shall,  before  entering  upon  his 
duties,  take  and  subscribe  before  the  Clerk  of  the  Executive 
Council  and  file  in  his  office  an  oath  of  office  in  the  following 
form: 

I  do  solemnly  swear  that  I  will  faithfully,  truly  and  impar- 
tially, to  the  best  of  my  judgment,  skill  and  ability,  execute 
and  perform  the  office  of  chairman,  {or  vice-chairman,  or 
member)  of  the  Ontario  Labour  Relations  Board  and  I 
will  not,  except  in  the  discharge  of  my  duties,  disclose  to 
any  person  any  of  the  evidence  or  any  other  matter  brought 
before  the  Board.  So  help  me  God."^^ 

The  registrar,  other  officers,  clerks  and  servants  of  the  Board 
are  not  required  to  subscribe  to  such  an  oath  of  office  and 
hence  there  are  no  statutory  prohibitions  against  their  dis- 
closing information  obtained  in  the  course  of  their  duties  to 
anyone,  other  than  that  contained  in  section  83  with  which 
we  now  deal. 


'Ibid.,  s.  75(5)  as  amended  by  Ont.  1966,  c.  76,  s.  28(4). 


2010         The  Ontario  Labour  Relations  Board 

Under  subsection  1  of  section  83  the  records  of  a  trade 
union  are  given  a  limited  privilege  which  can  be  overridden 
by  an  order  of  the  Board.  If  good  reason  is  shown  why  there 
should  be  disclosure,  there  may  be  some  relief.  Subsections 
2,  2(2,  2.h  and  2c  create  an  absolute  privilege  wdth  respect  to 
information  furnished  to  conciliation  officers  and  others. 
The  object  of  these  provisions  is  to  permit  conciliation  pro- 
ceedings to  be  carried  on  on  a  "without  prejudice"  basis. 
This  is  desirable  but  the  privilege  extends  to  information  or 
material  not  relevant  to  the  proceedings.  We  think  the  Board 
should  be  permitted  on  application  to  it  to  determine  whether 
information  or  material  supplied  is  relevant  to  proceedings 
and  where  it  determines  that  information  or  material  dis- 
closed is  irrelevant  the  privilege  should  not  extend  to  such 
information  or  material. 

Subsection  3  gives  the  Board  power  to  authorize  the 
disclosure  of  information  or  material  furnished  to  or  received 
by  a  field  officer  but  an  inconsistency  exists  in  the  section. 
Even  where  the  Board  may  authorize  the  disclosure,  the  field 
officer  is  rendered  incompetent  to  gi\e  evidence  before  a 
court  or  other  tribunal.  The  words  "other  tribunal"  may  be 
construed  to  include  the  Board.  We  think  that  where  the 
Board  has  authorized  the  disclosure  the  field  officer  should 
be  a  competent  and  compellable  witness. 

The  provisions  for  secrecy  under  the  sections  with  which 
we  have  been  dealing  go  to  extremes  and  beyond  what  has 
been  considered  necessary  under  the  federal  Act.^^  In  the 
first  place,  under  the  federal  Act,  the  Minister  may  publish 
the  report  of  a  Conciliation  Board. ^*''  In  the  second  place, 
although  the  proceedings  before  a  Conciliation  Board  are 
not  receivable  in  evidence  in  any  court  except  in  the  case  of  a 
prosecution  for  perjury, ^^  such  privilege  does  not  extend  to 
proceedings  before  the  Canada  Labour  Relations  Board,  nor 
are  the  members  of  the  Board  and  its  officers  rendered  incom- 
petent or  non-compellable  witnesses. 

It  is  not  to  be  overlooked  that  the  testimonial  restric- 
tions in  the  provincial  law  have  no  effect  in  criminal  cases. ^^ 

^"Industrial  Relations  and  Disputes  Act,  R.S.C.  1952,  c.  152. 

^^Ihid.,  s.  36. 

^'Ihid.,  s.  37. 

^^Marshall  v.  The  Queen  [1961]  S.C.R.  123,  discussed  at  p.  830  supra. 


Chapter  124         2011 

The  result  is  that  members  of  the  Ontario  Board  and  its 
officers  are  competent  and  compellable  witnesses  in  any 
criminal  case  with  respect  to  any  information  received  by 
them  in  the  performance  of  their  duties,  but  not  in  civil 
cases.  Consequently,  if  members  of  the  Board  or  its  field 
officers  become  possessed  of  information  furnished  to  or 
received  by  a  field  officer  that  is  relevant  to  a  charge  of  arson 
they  are  competent  witnesses  and  can  be  compelled  to  testify. 
But  if  the  information  is  rele\ant  to  a  claim  for  insurance 
made  in  the  Ontario  courts  they  are  not  competent  witnesses 
and  they  cannot  be  compelled  to  testify.  In  the  case  of  other 
information,  the  members  of  the  Board  are  competent  wit- 
nesses but  cannot  be  compelled  to  testify.  The  benefits  and 
the  detriments  that  arise  out  of  the  privilege  that  we  have 
been  discussing  must  be  balanced  and  we  think  the  balance 
is  in  favour  of  the  privilege  being  extended  to  conciliation 
proceedings  but  against  its  being  extended  to  members  and 
officers  of  the  Board. 

The  testimonial  privilege  created  under  sections  81  and 
83  should  be  limited  to  information  obtained  in  proceedings 
before  conciliation  boards. 

RECOMMENDATIONS 

1 .  The  Attorney  General  and  the  Minister  of  Labour  should 
have  power  to  institute  a  prosecution  under  the  Act 
without  the  consent  of  the  Board. 

2.  The  orders  of  the  Board  made  under  section  65  of  the 
Act  should  be  made  enforceable  in  the  same  manner  as 
orders  of  the  Supreme  Court  upon  filing  with  the  Regis- 
trar of  the  Board  and  without  being  filed  with  the 
Registrar  of  the  Supreme  Court  and  entered  as  judg- 
ments of  that  Court. 

3.  The  Board,  persons  to  whom  its  powers  are  delegated,  a 
conciliation  board,  a  mediator  and  an  arbitrator  should 
not  have  all  the  powers  of  a  court  of  record  in  civil  cases. 
The  Act  should  be  amended  to  provide  for  the  enforce- 
ment of  the  Board's  orders  as  recommended  in  Report 
Number  1,  p.  441  ff. 


2012         The  Ontario  Labour  Relations  Board 

4.  The  powers  of  compulsion  to  be  exercised  by  a  donee 
of  the  Board's  powers  should  be  clearly  defined  by  statute. 
The  donee  of  the  powers  should  not  have  power  to  decide 
the  scope  of  his  powers. 

5.  Where  the  Board  has  authorized  the  chairman  or  vice- 
chairman  to  make  an  inquiry  under  section  77(2)(h)  the 
Act  should  require, 

(a)  that  the  referee  give  reasons  for  his  decisions; 

(b)  that  a  copy  of  the  report  and  reasons  of  the  referee 
be  furnished  to  those  affected,  and 

(c)  that  parties  affected  by  the  report  have  a  right  of 
appeal  from  the  findings  of  the  referee  to  the  Board. 

6.  Rule  46(1)  (O.  Reg.  264/66)  should  be  amended  to 
read: 

"Where  it  appears  to  the  Board  that  an  application  or  com- 
plaint is  without  foundation  in  la^v  or  is  frivolous  or  vexa- 
tious the  Board  may  dismiss  the  application  without  a 
hearing  giving  its  reasons  in  Avriting  and  notifying^  the  appli- 
cant or  complainant  that  he  has  a  right  to  have  the  decision 
reviewed  by  the  Board." 

7.  Provision  shotild  be  made  giving  parties  who  may  be 
specifically  affected  by  a  decision  of  the  Board  a  right 
to  such  reasonable  adjournments  asked  for  in  good  faith 
as  may  be  appropriate  in  the  circumstances. 

8.  Where  a  division  of  the  Board  considers  that  a  matter 
should  be  discussed  by  the  full  Board  or  a  larger  division 
of  the  Board,  the  parties  should  be  notified  and  given  an 
opportunity  to  be  heard. 

9.  The  Board  should  be  required  to  give  reasons  for  its 
decisions  in  all  cases,  if  requested. 

10.  The  words  "and  the  action  or  decision  of  the  Board 
thereon  is  final  and  concltisive  for  all  ptirposes"  should 
be  struck  out  of  section  79(1)  and  section  80  should  be 
repealed. 

11.  The  testimonial  privilege  created  by  sections  81  and  83 
should  be  limited  to  information  obtained  on  pro- 
ceedings before  conciliation  boards. 


CHAPTER  125 


The  Ontario  Municipal  Board 


INTRODUCTION 

1  HE  Ontario  Municipal  Board,  to  which  we  shall  here- 
after refer  as  "the  Board",  unless  the  context  otherwise 
demands,  was  first  established  in  1932  under  the  Ontario 
Municipal  Board  Act^  as  the  successor  to  the  Ontario  Rail- 
Avay  and  Municipal  Board.  The  Act  effected  the  repeal  and 
amalgamation  of  three  previous  pieces  of  legislation  —  the 
Municipal  and  School  Accounts  Audit  Act,"  the  Railway  and 
Municipal  Board  Act,^  and  the  Bureau  of  Municipal  Affairs 
Act.^ 

The  legislative  roots  of  the  Ontario  Municipal  Board 
go  back  to  1897  when  the  office  of  Provincial  Municipal 
Auditor  was  created  to  establish  rules  for  the  proper  keeping 
of  accounts  by  municipalities  and  school  boards  under  the 
Municipal  and  School  Accounts  Audit  Act.^  The  auditor 
was  empowered  to  inspect  and  audit  the  books  of  account  of 
the  various  municipal  corporations. 

The  Ontario  Railway  and  Municipal  Board  was  created 
in  1906  under  the  Railway  and  Municipal  Board  Act.  It  was 
comprised  of  three  persons  appointed  by  the  Lieutenant 
Governor  in  Council  who  held  office  during  pleasure.^ 
Many  provisions  of  the  Ontario  Municipal  Board  Act  are 

^Ont.  1932,  c.  27. 
=R.S.O.  1927,  c.  243. 
"R.S.O.  1927,  c.  225. 
^R.S.O.  1927,  c.  232. 
"Ont.  1897,  c.  48. 
«Ont.  1906,  c.  31,  s.  4. 

2013 


2014         The  Ontario  Municipal  Board 

similar  to  those  which  were  contained  in  the  Ontario  Rail- 
way and  Municipal  Board  Act.  For  example,  the  latter  Act 
provided  that  the  opinion  of  the  Chairman  on  any  question 
of  law  was  to  prevail;^  that  an  appeal  would  lie  to  the  Court 
of  Appeal  with  leave  of  that  Court,  on  questions  of  law  and 
jurisdiction;^  that  the  Board  was  required  to  enquire  and 
report  upon  the  request  of  the  Lieutenant  Governor  in 
Council  or  the  Legislature;^  and  that  the  Board  was  em- 
powered to  hear  assessment  appeals.^*' 

When  the  Ontario  Railway  and  Municipal  Board  was 
created  in  1906  its  principal  powers  related  to  provincial  rail- 
ways and  it  was  not  until  about  30  years  later  that  the  em- 
phasis shifted  almost  entirely  to  the  sphere  of  municipal 
affairs. 

The  Bureau  of  Municipal  Affairs  Act  passed  in  1917^^ 
established,  as  a  branch  of  the  Public  Service  of  Ontario, 
the  Bureau  of  Municipal  Affairs,  which  had  four  principal 
duties: 

(1)  to  administer  the  Municipal  and  School  Accounts 
Audit  Act; 

(2)  to   superintend   the   bookkeeping  of  public   utilities; 

(3)  to  issue  bulletins  to  every  municipality  to  secure  the 
uniformity,  efficiency  and  economy  of  municipal  adminis- 
tration, and 

(4)  to  collect  statistical  and  other  information  from 
municipalities. 

Since  its  creation  in  1932  the  Ontario  Municipal  Board, 
except  for  its  numerical  composition,  has  changed  very  little. 
The  powers  it  possessed  in  1932  it  still  possesses  in  1970, 
although  it  is  seldom  called  upon  to  exercise  many  powers 
vested  in  it  by  the  Railways  Act^^  with  regard  to  provincial 
railways. 

The  time  of  the  Board  is  now  mainly  devoted  to  the 
exercise  of  powers  concerning  municipal  affairs. 

'R.S.O.  1927,  c.  225,  s.  6. 

Uhid.,  s.  43. 

^Ihid.,  s.  55. 
"/&2U,  s.  51. 
"Ont.  1917,  c.  14. 
"R.S.O.  1950,  c.  331,  unconsolidated  and  unrepealed. 


Chapter  125         2015 

In  the  field  of  municipal  affairs  the  Board  exercises  three 
main  functions: 

(1)  it  hears  appeals  under  the  Assessment  Act; 

(2)  it  hears  applications  for  approval  of  zoning  by-laws, 
and 

(3)  it  supervises  the  affairs  of  local  municipalities  and 
exercises  powers  delegated  to  it  by  the  Lieutenant  Gover- 
nor in  Council. 

In  the  exercise  of  its  powers  with  respect  to  assessment  appeals 
the  Board  exercises  "judicial"  functions,  while  in  the  exercise 
of  the  balance  of  its  powers  its  functions  are  mainly 
"administrative". 

It  is,  perhaps,  adequate  for  our  purposes  to  refer  first 
to  these  broad  classifications  of  power.  There  are,  however, 
certain  powers  that  have  been  granted  to  the  Board  that  are 
difficult  to  classify.  These  will  be  considered  later.  It  should 
also  be  made  clear  that  it  is  not  only  difficult  to  classify  some 
powers  of  the  Board  but  it  is  doubly  difficult  to  discover  all 
the  powers  that  are  conferred  on  the  Board.  If  all  that  had 
been  required  was  a  reference  to  the  Ontario  Municipal 
Board  Act,  or  perhaps  to  the  Municipal  Act,^^  our  task 
would  have  been  less  difficult,  but  that  is  not  the  case.  The 
Board  itself  was  unable  to  furnish  us  with  a  complete  list 
of  the  statutes  from  which  it  derives  its  powers.  No  catalogue 
or  master  index  exists  to  which  reference  can  be  made  to 
determine  the  jurisdiction  of  the  Municipal  Board.  We  have 
found  in  our  research^^  that  subject  to  the  ultimate  effect  of 
the  Expropriations  Act  1968-69,  the  Board  obtains  jurisdic- 
tion from  at  least  30  different  statutes;  statutes  as  diverse 
as  the  Mining  Tax  Act,^°  the  Cemeteries  Act,^*^  and  the 
Trustee  Act.^^  We  are  quite  unable  to  say  with  assurance  that 
in  our  research  we  have  located  all  of  the  powers  of  the  Board. 

The  situation  cannot  be  permitted  to  continue  where 
even  the  Board  does  not  know  the  extent  of  its  own  juris- 
diction and  where  there  is  no  way  to  determine  the  extent 

"R.S.O.  I960,  c.  249. 

^*See  Appendix  to  this  Chapter,  p.  2045fF.  infra. 

"R.S.O.  1960,  c.  242. 

"R.S.O.  1960,  c.  47. 

^'R.S.O.  1960,  c.  408. 


2016         The  Ontario  Municipal  Board 

of  its  jurisdiction  except  by  a  minute  and  detailed  examina- 
tion of  virtually  every  statute  passed  and  unrepealed  since  the 
creation  of  the  Board  in  1932.  The  granting  of  jurisdiction 
to  the  Board  is  almost  invariably  coupled  with  a  remedy 
available  to  a  municipal  corporation,  a  private  citizen  or 
some  other  body.  It  would  appear,  from  an  examination  of 
the  Appendix  to  this  Chapter,  that  it  has  often  been  the 
practice  of  successive  legislatures,  when  faced  with  the  neces- 
sity of  creating  a  jurisdiction  to  cope  with  a  particular 
problem,  to  assign  the  problein  to  the  Municipal  Board. 

A  complete  catalogue  of  the  powers  conferred  on  the 
Board  should  be  made  available  to  the  public. 

In  our  analysis  of  the  powers  and  jurisdiction  of  the 
Board  we  have  not  attempted  to  conduct  an  in-depth  study 
of  the  day-to-day  workings  of  the  Board.  Our  Terms  of 
Reference  do  not  require  us  to  do  that.  Our  approach  has 
been  to  examine  certain  of  the  powers  vested  in  the  Board  by 
the  Legislature  and  to  analyze  these  powers  in  the  light  of  the 
recommendations  we  have  made  in  Report  Number  1. 
However,  we  wish  to  make  it  clear  that  when  we  criticize  the 
powers  of  the  Board  as  failing  to  meet  the  standards  set  out 
in  Report  Number  1,  we  are  not  criticizing  the  manner  in 
which  the  members  of  the  Board  perform  their  functions. 
We  have  emphasized  throughout  our  Reports  that  it  is  no 
answer  to  a  criticism  that  powers  are  excessive  or  proper 
safeguards  have  not  been  provided  to  say  that  the  powers  are 
seldom  if  ever  used,  or  that  a  particular  board  or  tribunal 
appears  to  be  functioning  well.  The  mere  fact  that  a  board 
or  tribunal  has  been  granted  excessive  powers  or  that  there 
are  no  safeguards  against  misuse  is  sufficient  in  itself  to 
recommend  remedial  legislative  action. 

CONSTITUTION  OF  THE  BOARD 

The  Board  is  composed  of  as  many  members  as  the 
Lieutenant  Governor  in  Council  may  from  time  to  time 
appoint. ^^  One  of  its  members  is  appointed  chairman,  and 
one  or  more  are  appointed  vice-chairmen.  At  present,  the 
Board  is  composed  of  14  members  of  whom  one  is  the  chair- 

^'R.S.O.  I960,  c.  274,  s.  5(1)(2). 


Chapter  125         2017 

man  and  four  are  vice-chairmen.  It  has  a  secretary  and 
a  registrar.  The  Lieutenant  Governor  in  Council  fixes  the 
salaries  of  the  members  of  the  Board  and  the  Province  pays 
them.^"  The  members  hold  office  during  the  pleasure  of  the 
Lieutenant  Governor  in  Coimcil.-*' 

Two  members  of  the  Board  form  a  quorum  and  arc 
sufficient  for  the  exercise  of  all  the  jurisdiction  and  powers 
of  the  Board.  At  least  two  members  shall  attend  at  the  hearing 
of  every  application.-^  However,  the  Chairman  may  authorize 
one  member  of  the  Board  to  conduct  the  hearing  of  an 
application  and  to  report  to  the  Board.  For  the  purpose  of 
such  hearing  the  member  has  all  the  powers  of  the  Board. ^- 
The  report  of  the  single  member  conducting  the  hearing  may 
be  adopted  as  the  order  or  decision  of  the  Board  by  the 
Chairman  or  by  two  other  members  of  the  Board  one  of  whom 
shall  be  a  vice-chairman,  or  may  be  otherwise  dealt  with  as 
the  Board  deems  proper.-^  This  is  not  the  proper  procedure 
for  the  conduct  of  judicial  hearings  nor  the  method  of 
reaching  a  decision  complying  with  the  judgment  of  the 
Supreme  Court  of  Canada  in  Melir  v.  The  Law  Society  of 
Upper  Canada.^'^ 

In  its  annual  report  of  1968,^^  the  Board  recommended 
that  a  study  be  made  of  the  suggestion  "that  more  effective 
use  of  the  personnel  of  the  Board  might  be  achieved  if  power 
were  given  for  one  member  to  conduct  less  important  or 
more  routine  hearings  as  this  would  make  it  possible  to  assign 
three  members  for  more  difficult  hearings  and  for  hearings 
of  review  of  previous  decisions  provided  for  by  Section  42  of 
The  Ontario  Municipal  Board  Act." 

When  present,  the  Chairman  is  required  to  preside  at  all 
sittings  of  the  Board  and  his  opinion  upon  any  question  of 
law  shall  prevail. ^^ 

"7&irf.,  s.  5(3),  as  enacted  by  Ont.  1964,  c.  81,  s.  1. 

'°Ibid.,  s.  7. 

'^Ibid.,  s.  12(1). 

"/&?rf.,  s.  15(1). 

"/&zV/.,  s.  15(2),  as  re-enacted  by  Ont.  1967,  c.  68,  s.  1. 

''[1955]  S.C.R.  344.  See  Report  Number  1,  pp.  129  and  220  supra  and  recom- 
mendation concerning  the  Ontario  Highway  Transport  Board,  Chapter  121, 
pp.  1959-60  supra. 

'■■"Annual  Report  of  the  Ontario  Municipal  Board,  (1968),  2. 

"R.S.O.  1960,  c.  274,  s.  14. 


2018         The  Ontario  Municipal  Board 

The  Government,  in  accordance  with  the  Act,  has  pro- 
vided in  Toronto,  premises  for  the  conduct  of  hearings  and 
offices  for  the  members  of  the  Board  and  its  staff.^^  How- 
ever, the  Board  does  not  restrict  the  hearings  to  Toronto. 
It  sits  at  different  places  throughout  Ontario  as  designated 
by  the  Chairman. ^^ 

The  Lieutenant  Governor  in  Council  may  appoint  an 
expert  to  assist  the  Board  in  "an  advisory  or  other  capacity"^^ 
or  to  be  an  "acting  member"  of  the  Board. ^"^  The  "acting 
member"  must  be  a  person  specially  qualified  to  assist  the 
Board  with  respect  to  a  particular  application  before  it  and 
such  person  is  empowered  to  participate  in  the  hearing  of  the 
particular  application  and  the  decision.  He  has  all  the 
powers  of  a  regular  member  of  the  Board  for  the  purposes 
of  such  application. 

LIABILITY  OF  MEMBERS  OF  THE  BOARD 

"No  member  of  the  Board  or  its  secretary  or  any  of  its  staft 
is  personally  liable  for  anything  done  by  it  or  by  him  under 
the  authority  of  this  or  any  other  Act."^^ 

We  discuss  provisions  such  as  these  in  relation  to  the 
liability  of  the  Crown  in  Chapter  131.  We  there  point  out 
how  they  deprive  the  individual  of  the  benefits  which  are 
purported  to  be  conferred  under  the  Proceedings  Against  the 
Crown  Act. 

GENERAL  JURISDICTION  AND  POWERS 

In  addition  to  the  jurisdiction  and  powers  vested  in  the 
Board  by  the  several  statutes  listed  in  the  Appendix  to  this 
Chapter,^-  general  and  specific  powers  are  vested  in  the  Board 
by  the  Ontario  Municipal  Board  Act.^^  These  powers  are 
mainly  relative  to  the  exercise  of  its  powers,  while  the  powers 
conferred  in  the  other  statutes  are  of  a  substantive  nature. 

"Ibid.,s.  21. 
"^Ibid.,  s.  22. 
"Z&eU,  s.  26(1). 
''"Ibid.,  s.  26(2). 
"Ibid.,  s.  32. 
"See  p.  2045ff.  infra. 
"R.S.O.  1960.  c.  274. 


Chapter  125         2019 

For  all  purposes  the  Board  has  all  the  powers  of  a  court 
of  record  and  has  an  official  seal.^^  It  has  the  authority  to 
hear  and  determine  all  questions  of  law  and  fact  coming 
within  its  jurisdiction,^''  and  exclusive  jurisdiction  in  respect 
of  all  matters  in  which  jurisdiction  is  conferred  on  it  by  the 
Ontario  Municipal  Board  Act  or  by  any  other  general  or 
special  Act.^*^ 

Section  36  serves  as  a  legislative  bridge  between  those 
statutes  granting  jurisdiction  to  the  Board  in  a  great  variety 
of  matters  and  the  Ontario  Municipal  Board  Act.  This  section 
reads,  in  part,  as  follows: 

"(1)  The  Board  has  jurisdiction  and  power, 

(a)  to  hear  and  determine  all  applications  made,  pro- 
ceedings instituted  and  matters  brought  before  it 
under  this  Act  or  any  other  general  or  special  Act 
and  for  such  purpose  to  make  such  orders,  rules  and 
regulations,  give  such  directions,  issue  such  certi- 
ficates and  otherwise  do  and  perform  all  such  acts, 
matters,  deeds  and  things,  as  may  be  necessary  or 
incidental  to  the  exercise  of  the  powers  conferred 
upon  the  Board  under  such  Act; 

(b)  to  perform  such  other  functions  and  duties  as  are 
now  or  hereafter  conferred  upon  or  assigned  to  the 
Board  by  statute  or  under  statutory  authority; 

(c)  to  order  and  require  or  forbid,  forthwith  or  within 
any  specified  time  and  in  any  manner  prescribed 
by  the  Board,  the  doing  of  any  act,  matter  or  thing 
or  the  omission  or  abstention  from  doing  or  con- 
tinuance of  any  act,  matter  or  thing,  which  any  per- 
son, firm,  company,  corporation  or  municipality  is 
or  may  be  required  to  do  or  omit  to  be  done  or  to 
abstain  from  doing  or  continuing  under  this  or  any 
other  general  or  special  Act,  or  under  any  order 
of  the  Board  or  any  regulation,  rule,  by-law  or 
direction  made  or  given  under  any  such  Act  or 
order  or  under  any  agreement  entered  into  by  such 
person,  firm,  company,  corporation  or  municipality; 

(d)  to  make,  give  or  issue  or  refuse  to  make,  give  or 
issue  any  order,  directions,  regulation,  rule,  per- 
mission, approval,  certificate  or  direction,  which  it 
has  power  to  make,  give  or  issue. 

^*Ibid.,  s.  33. 
'''Ibid.,  s.  34. 
'Ubid.,  s.  35. 


2020         The  Ontario  Municipal  Board 

(2)  Notwithstanding  anything  in  any  general  or  special  Act, 
where  land  or  other  property  has  been  expropriated 
under  the  authority  of  any  general  or  special  Act  all 
claims  for  compensation  or  damages  by  reason  of  such 
expropriation  shall,  where  the  expropriating  body  so 
elects  by  notice  in  writing,  be  heard  and  determined  by 
the  Board,  and  ^vhere  such  election  is  made  sections  28, 
30,  31,  32  and  36  of  The  Public  Works  Act,  except  as 
otherwise  provided  in  the  Act  authorizing  the  expropri- 
ation, mutatis  mutandis  apply. "^' 

The  provision  that  'notwithstanding  anything  in  any 
general  or  special  Act",  where  land  has  been  expropriated 
the  expropriating  body  may  elect  that  all  claims  for  compen- 
sation shall  be  heard  and  determined  by  the  Board,  has  been 
drastically  affected  by  the  Expropriations  Act  1968-69.^** 
We  shall  deal  later  with  the  broad  po^vers  confeiTed  under 
paragraph  (c)  of  section  36(1)  W'hich  we  have  quoted. 

The  Board  has  been  given  "all  such  powers,  rights  and 
privileges  as  are  vested  in  the  Supreme  Court  [of  Ontario] 
with  respect  to  the  amendment  of  proceedings,  addition  or 
substitution  of  parties,  attendance  and  examination  of  wit- 
nesses, production  and  inspection  of  documents,  entry  on  and 
inspection  of  property,  enforcement  of  its  orders  and  all  other 
matters  necessary  or  proper  therefor,  "^^  The  power  of  the 
Board  to  commit  for  contempt  of  court  together  with  other 
provisions  in  the  Act  for  the  enforcement  of  its  orders  will 
be  dealt  with  in  due  course. "^"^ 

The  Act  contains  an  extraordinary  provision  granting 
those  issuing  letters  patent  for  the  incorporation  of  a  company 
power  to  confer  upon  the  Board  wide  powers  of  investigation 
and  decision. 

"Where  by  the  provisions  of  any  letters  patent  or  supple- 
mentary letters  patent  of  any  corporation,  heretofore  or 
hereafter  issued  under  The  Corporations  Act  or  any  other 
general  or  special  Act,  any  jurisdiction  is  conferred  upon  the 
Board  or  it  is  provided  that  any  matter  in  any  way  may  be 
referred  to  the  Board  Avith  respect  thereto,  it  has  power  to 
inquire  into,   hear  and  determine  all   matters  and   things 


^'•Ibid.,  s.  36. 
''^Ont.  1968-69,  c.  36. 
=^R.S.O.  1960,  c.  274,  s.  37. 
"See  Ibid.,  s.  85. 


Chapter!  2 'i         2021 

necessary  or  incidental  to  the  due  exercise  of  such  jurisdiction 
and  reference  and  to  make  and  give  orders,  directions,  regu- 
lations, rules,  permissions,  approvals,  sanctions  and  certifi- 
cates as  to  the  Board  may  seem  proper."^ ^ 

These  are  powers  that  ought  to  be  specifically  confeiTcd 
by  statute  or  by  the  Lieutenant  Governor  in  Council  under 
a  statute  and  not  by  the  letters  patent  for  the  incorporation  of 
companies.  This  provision  has  been  in  the  Act  for  many  years 
but  ^\e  could  discover  no  instance  where  it  has  been  applied. 
We  do  not  know  what  its  purpose  is  and  the  Chairman  of  the 
Board  advised  us  that  he  did  not  know  either.  The  section 
should  be  repealed. 

The  Board,  of  its  own  motion,  may  and  shall,  at  the 
request  of  the  Lieutenant  Governor  in  Council,  inquire  into, 
hear  and  determine  any  matter  or  thing  "that  it  may  inquire 
into,  hear  and  determine  upon  application  or  complaint." 
In  such  case  it  exercises  the  same  powers  as  upon  any  applica- 
tion or  complaint.^"  It  is  further  provided  that  "any  power 
or  authority  vested  in  the  Board  under  this  or  any  other 
general  or  special  Act  may,  though  not  so  expressed,  be  exer- 
cised from  time  to  time,  or  at  any  time,  as  the  occasion  may 
require. "^^  This  would  appear  to  give  the  Board  wide  powers 
of  its  own  motion  to  "inquire,  hear  and  determine"  where 
no  one  has  applied  to  it  to  exercise  its  powers.  Likewise  the 
Lieutenant  Governor  in  Council  may  require  the  Board  to 
exercise  its  powers  although  no  one  has  applied  to  it  for  relief. 

The  Board  should  not  have  powder  of  its  own  motion  to 
enter  upon  a  determination  of  any  matter  in  which  it  exercises 
a  judicial  function  nor  should  the  Lieutenant  Governor  in 
Council  have  power  to  require  the  Board  to  exercise  its 
judicial  functions  unless  the  Government  has  an  interest  in 
the  determination  of  the  matter.^^ 

On  the  other  hand,  there  may  be  administrative  pow^ers 
that  the  Board  should  have  power  to  exercise  of  its  own 
motion  and  no  doubt  the  Lieutenant  Governor  in  Council 
should  have  powder  to  ask  the  Board  to  determine  certain 

*Ubid.,  s.  38. 
*'Ibid.,  s.  40(1). 
*ybid.,  s.  40(2). 

"See  references   to  a  similar   provision   in   the   Ontario  Energy   Board   Act, 
Chapter  1 19,  p.  1921  supra. 


2022         The  Ontario  Municipal  Board 

matters  of  an  administrative  nature.  Such  matters  should  be 
defined  in  the  statute. 

The  Lieutenant  Governor  in  Council  is  empowered  to 
appoint  counsel  to  appear  before  the  Board  to  conduct  an 
inquiry  or  hearing  or  to  represent  the  Board  in  any  appeal 
to  the  Court  of  Appeal  or  to  any  other  court.  In  such  case  the 
Board  "may  direct  that  the  costs  of  such  counsel  shall  be  paid 
by  any  party  to  the  application,  proceeding  or  matter,  or  by 
the  Treasurer  of  Ontario. "^^ 

It  does  not  seem  right  that  the  Lieutenant  Governor  in 
Council  should  have  power  to  appoint  counsel  to  appear 
before  the  Board  in  any  inquiry  and  that  a  party  to  the 
inquiry  might  be  ordered  to  pay  the  costs  of  such  counsel. 
Mr.  Kennedy,  the  Chairman,  told  us  he  knew  of  only  one  case 
where  this  had  been  done.  In  that  case  counsel  was  appointed 
to  represent  the  Board  on  an  appeal  to  the  Court  of  Appeal. 
He  said  as  far  as  he  was  concerned  the  section  might  be  re- 
pealed. 

There  may  well  be  cases  coming  before  the  Board  in 
which  the  Government  would  wish  to  intervene  because  it 
has  a  direct  or  indirect  interest  in  the  result.  These  should 
be  specifically  provided  for  without  any  power  in  the  Board 
to  direct  that  any  of  the  other  parties  should  pay  the  costs 
of  the  Government. 

The  Board  has  power  to  rehear  any  application  before 
making  a  final  decision.  It  may  also  "review,  rescind,  change, 
alter  or  vary  any  decision,  approval  or  order  made  by  it."*^ 

This  section  is  frequently  used,  but  only  after  the  Board 
has  reached  a  decision  in  the  first  instance.  The  Chairman 
outlined  to  us  the  procedure  followed  in  determining  whether 
a  rehearing  will  be  granted.  One  of  the  parties  to  the  matter 
brings  a  motion  before  the  Board,  differently  constituted  than 
it  was  at  the  original  hearing,  for  an  order  that  a  new  hearing 
be  granted.  The  usual  grounds  for  seeking  a  new  hearing  are 
that  the  Board  has  come  to  a  wrong  decision,  fresh  evidence 
is  available,  or  that  certain  witnesses  who  should  have  testified 
did  not  testify  at  the  original  hearing.  Such  motions  are 
argued  without  the  benefit  of  a  record  of  the  original  hearing. 

"R.S.O.  I960,  c.  274,  s.  41. 
'^Ihid.,  s.  42. 


Chapter  125         2023 

If  the  Board  is  of  the  opinion  that  a  prima  facie  case  for  a  new 
hearing  has  been  made  out  an  order  will  be  made  and  the  new 
hearing  will  proceed  as  a  hearing  de  novo.  In  effect,  there- 
fore, the  Board  might  determine  a  single  issue  several  times. 
Provision  is  made  for  an  appeal  to  the  Court  of  Appeal  from 
a  decision  of  the  Board  on  a  question  of  jurisdiction  or  law 
with  leave  of  the  Court. ^^  There  may  be  cases  where  wide 
powers  to  grant  a  rehearing  should  be  conferred  on  the  Board 
especially  in  administrative  matters  but  where  the  Board 
exercises  its  judicial  powers  there  should  be  no  power  to  grant 
a  rehearing  but  wide  rights  of  appeal  should  be  given. 

It  should  be  made  clear  that  there  is  no  power  to  grant 
a  rehearing  of  a  rehearing  except  in  exceptional  and  specified 
circumstances.^^ 

The  Lieutenant  Governor  in  Council,  the  Assembly  or 
any  committee  thereof,  may  require  the  Board  to  inquire  into 
and  report  on  any  matters  incident  to  any  proposed  change 
in  the  general  law,  or  to  any  proposed  Bill  relating  to  a 
municipality  or  to  a  railway  or  to  any  corporation  or  person 
operating  or  proposing  to  operate  a  public  utility. ^^  This 
provision,  which  would  appear  to  have  the  effect  of  consti- 
tuting the  Board  a  sort  of  Royal  Commission  at  large,  has  been 
made  use  of  a  few  times.  There  are  other  analogous  pro- 
visions. The  Lieutenant  Governor  in  Council  has  power  to 
refer  to  the  Board  for  a  report  or  other  action,  any  question, 
matter  or  thing  relating  to  a  municipality,  railway  or  public 
utility  subject  to  the  jurisdiction  of  the  Board  under  any 
general  or  special  Act.^*^  At  the  request  of  the  Lieutenant 
Governor  in  Council  the  Board  shall  inquire  into  and  report 
on  the  establishment,  organization,  reorganization  and 
methods  of  operation  "of  any  two  or  more  municipalities."^^ 
The  Board  has  power  to  appoint  any  person  to  make  an 
inquiry  and  report  upon  "any  application,  complaint,  or 
dispute"  before  it,  or  upon  "any  matter  or  thing"  over  which 
it  has  jurisdiction.^^   This  is  a  very  wide  power  of  delegation 

"Ibid.,  s.  95. 

**See  Regina  v.  Ontario  Labour  Relations  Board,  [1964]  1  O.R.  173. 

"R.S.O.  1960,  c.  274,  s.  43. 

"/fetd.,  s.  44. 

"Hbid.,  s.  45. 

'Hbid.,  s.  46(1). 


2024         The  Ontario  Municipal  Board 

and  it  would  seem  to  overlap  the  power  of  the  Board  to 
authorize  one  of  its  members  to  conduct  a  hearing  and  report. 
We  have  earlier  referred  to  the  jurisdiction  and  power 
conferred  on  the  Board  under  section  36(l)(c)  which  we 
repeat  for  convenience. 

"to  order  and  require  or  forbid,  forthwith  or  within  any 
specified  time  and  in  any  manner  prescribed  by  the  Board, 
the  doing  of  any  act,  matter  or  thing  or  the  omission  or 
abstention  from  doing  or  continuance  of  any  act,  matter  or 
thing,  which  any  person,  firm,  company,  corporation  or 
municipality  is  or  may  be  required  to  do  or  omit  to  be  done 
or  to  abstain  from  doing  or  continuing  under  this  or  any 
other  general  or  special  Act,  or  under  any  order  of  the  Board 
or  any  regulation,  rule,  by-law  or  direction  made  or  given 
under  any  such  Act  or  order  or  under  any  agreement  entered 
into  by  such  person,  firm,  company,  corporation  or  munic- 
ipality."^^ 

Under  section  47  the  Board  has  power  to  "order  and 
require  any  person  or  company,  corporation  or  municipality 
to  do  forthwith  or  within  or  at  any  specified  time,  and  in  any 
manner  prescribed  by  the  Board,  so  far  as  is  not  inconsistent 
with  this  Act,  any  act,  matter  or  thing  that  such  person, 
company,  corporation  or  municipality  is  or  may  be  required 
to  do  under  this  Act,  or  under  any  other  general  or  special 
Act,  or  under  any  regulation,  order,  direction,  agreement  or 
by-law,  and  may  forbid  the  doing  or  continuing  of  any  act, 
matter  or  thing  that  is  in  contravention  of  any  such  Act  or  of 
any  such  regulation,  order,  direction,  agreement  or  by-law."^* 

The  powers  conferred  under  section  47  overlap  with 
those  conferred  under  section  36(1  )(c)  and  other  statutes. 
This  is  confusing  and  unnecessary.  But  that  is  not  the  most 
serious  criticism. 

The  Legislature  appears  to  have  attempted  to  give  the 
Board  wide  powers  usually  exercised  by  the  Supreme  Court 
to  issue  orders  of  compulsion  or  prohibition  with  respect  to 
acts  "which  any  person,  firm,  company,  corporation  or  munici- 
pality is  or  may  be  required  to  do  or  omit  to  be  done  or  to 
abstain  from  doing  or  continuing  under  this  or  any  other 
general  or  special  Act,  or  under  any  order  of  the  Board  or  any 

^'Ibid.,  s.  36(l)(c).  Italics  added. 
^*Ibid.,  s.  47.  Italics  added. 


Chapter  125         2025 

regulation,  rule,  by-law  or  direction  made  or  given  under  any 
such  Act  or  order  or  under  any  agreement  entered  into  by 
such  person,  firm,  company,  corporation  or  municipality. "^° 

This  is  an  absurdly  broad  power  and  in  its  breadth  it  is 
unconstitutional.  Sections  36(1  )(c)  and  47  should  be  redrafted 
so  as  to  confine  the  compulsive  powers  of  the  Board  to  matters 
over  which  it  has  jurisdiction  to  exercise  a  power  of  decision. 

"The  Board  may  require  any  person,  company,  corpora- 
tion or  municipality,  subject  to  its  jurisdiction,  to  adopt  such 
means  and  appliances  and  to  take  and  use  such  precautions 
as  the  Board  may  deem  necessary  or  expedient  for  the  safety 
of  life  and  property. "^"^ 

This  is  an  apparent  relic  of  the  days  when  the  Board 
exercised  wide  jurisdiction  over  railways.  These  powers  are 
no  longer  exercised.  The  section  should  be  repealed.  If  it  is 
to  remain  it  should  be  entirely  rewritten.  It  gives  arbitrary 
powers  limited  only  by  what  the  Board  may  "deem  necessary 
or  expedient".  The  power  to  legislate  as  to  what  safety 
measures  should  be  taken  should  be  exercised  by  the  Legis- 
lature and  should  not  be  delegated  to  the  Board. 

"49.  (1)  When  the  Board,  in  the  exercise  of  any  power  vested 
in  it,  by  any  order  directs  any  structure,  appliances, 
equipment,  works,  renewals  or  repairs  to  be  pro- 
vided, constructed,  reconstructed,  altered,  installed, 
operated,  used  or  maintained,  it  may  order  by  what 
person,  company,  corporation  or  municipality  in- 
terested or  affected  by  such  order,  as  the  case  may 
be,  and  when  or  within  ivhat  time,  and  upon  what 
terms  and  conditions  as  to  the  payment  of  compen- 
sation or  otherwise,  and  under  ^vhat  supervision  the 
same  shall  be  provided,  constructed,  reconstructed, 
altered,  installed,  operated  used  or  maintained. 
(2)  The  Board  may  order  by  whom,  in  what  proportion 
and  when,  the  costs  and  expenses  of  providing,  con- 
structing, reconstructing,  altering,  installing  and 
executing  such  structures,  equipment,  works,  re- 
newals or  repairs,  or  of  the  supervision,  if  any,  or  of 
the  continued  operation,  use  or  maintenance  of  the 
same,  or  of  otherwise  complying  with  such  order, 
shall  be  paid."^^ 


^Ihid.,  s.  36(l)(c)  and  see  s.  37  discussed  at  pp.  2027  and  2032  in^ra. 
^Ihid.,  s.  48. 
Uhid.,  s.  49. 


2026         The  Ontario  Municipal  Board 

This  section  is  also  a  relic  of  the  days  when  the  Board 
exercised  a  jurisdiction  over  railways.  Mr.  Kennedy  advises 
us  it  is  no  longer  used.   It  should  be  repealed. 

Section  50  is  a  complicated  section.  It  provides  that 
where  default  is  made  in  complying  with  an  order  of  the 
Board  requiring  something  to  be  done,  the  Board  may  order 
that  it  be  done  by  such  person  as  it  may  see  lit,  and  that  the 
expense  thereby  incurred  be  recovered  from  the  one  in  default 
as  money  paid  for  and  at  his  request  and  the  certificate  of  the 
Board  of  the  amount  so  expended  is  conclusive  evidence 
thereof.  Under  the  provisions  of  this  section  one  could  be 
condemned  to  pay  any  amount  fixed  by  the  Board  without 
a  hearing.  Mr.  Kennedy  agreed  that  if  orders  of  that  kind 
have  to  be  enforced  they  should  be  enforced  through  the 
Courts  with  proper  provisions  for  a  hearing. 

The  Board^^  has  power  to  enforce  its  orders  and  direc- 
tions respecting  any  public  utility  in  the  manner  and  by  the 
means  provided  in  section  261  of  the  Railways  Act.^^  This  is  a 
curious  piece  of  cross-legislation.  The  Railways  Act  is  almost, 
if  not  entirely,  obsolete  legislation.  It  is  unrepealed  but  was 
not  consolidated  in  the  1960  revision  of  the  statutes. 

The  provisions  of  the  Railways  Act  for  enforcement  of 
the  Board's  orders  are  related  to  the  power  of  the  Board  to 
deal  with  alleged  violations  of  an  agreement  with  respect  to 
the  operation  of  a  railway  or  a  street  railway  upon  or  along 
a  highway.  Where  the  Board  has  made  an  order  it  may  take 
such  means  and  employ  such  persons  as  may  be  necessary  for 
the  proper  enforcement  of  such  order  including  entry  upon 
and  seizing  the  railway  in  whole  or  in  part  and  assuming  all 
or  any  of  the  powers  of  the  directors  and  officers,  etc.  Elabo- 
rate provisions  are  made  for  the  management  of  the  railway 
by  the  Board. 

A  mere  reading  of  the  relevant  section  of  the  Railways 
Act  demonstrates  how  inappropriate  the  powers  set  out  there 
are  for  adaption  with  respect  to  "orders  and  directions 
respecting  any  public  utility." 

Section  51  should  be  repealed  and  an  appropriate  section 
enacted  in  the  Ontario  Municipal  Board  Act  to  confer  only 

"/&iU,  s.  51. 
"R.S.O.  1950,  c.  331. 


Chapter  125         2027 

such  powers  on  the  Board  as  may  be  necessary  for  the  enforce- 
ment of  its  orders.  We  do  not  think  that  it  is  appropriate 
or  necessary  that  the  Board  should  have  power  to  make  orders 
for  the  seizure  of  property  of  pubhc  utihties. 

"llie  Board,  inspecting  engineer,  or  person  appointed 
under  this  Act  to  make  a7iy  inquiry  or  report,"  are  given 
under  section  52  powers  of  entry  and  inspection  of  any  place 
being  the  property  or  under  the  control  of  any  company  and 
power  to  require  the  attendance  "of  all  such  persons  as  it  or 
he  thinks  fit  to  summon"  and  to  examine  them  under  oath, 
and  to  require  them  to  answer  all  questions  or  make  all  re- 
turns and  produce  all  documents  as  "it  or  he  thinks  fit".  To 
enable  the  Board  or  person  to  exercise  these  powers  they  have 
the  like  powers  of  compulsion  as  are  vested  in  any  court  in 
civil  cases. "^^  This  gives  to  the  Board  or  anyone  appointed  by 
the  Board  power  to  commit  for  contempt  of  court.  We  dealt 
with  such  provisions  in  Report  Number  1^^  and  recom- 
mended that  they  be  repealed.  Mr.  Kennedy's  view  was  that 
the  powers  of  committal  conferred  under  this  section  are  not 
necessary  and  that  the  section  might  be  amended.  The 
powers  of  committal  conferred  under  section  37  should  be 
made  to  conform  to  our  recommendation  in  Report  Number 
1.^"  Section  52  should  be  repealed. 

General  Municipal  Jurisdiction 

Section  53  is  a  "receiving-enabling"  section  and  comple- 
ments many  statutes  in  the  field  of  municipal  law  which 
require  certain  procedures  followed  by  municipalities  to  be 
approved  by  the  Municipal  Board  before  becoming  effective. 
The  Board  is  given  jurisdiction  and  power  in  relation  to 
municipal  affairs  — 

(a)  to  approve  municipal  borrowing; 

(b)  to  approve  municipal  by-laws; 

(c)  to  authorize  the  issue  by  a  municipality  of  debentures 
and  to  certify  the  validity  of  debentures; 

(d)  to  direct  that  the  assent  of  the  electors  be  obtained  to 
certain  municipal  by-laws; 

•°R.S.O.  1960,  c.  274,  s.  52.  Italics  added, 
"p.  441,  R.  supra. 
•*p.  446  supra. 


2028         The  Ontario  Municipal  Board 

(e)  to  supervise,  when  deemed  necessary,  the  expenditure 

of  any  moneys  borrowed  by  a  municipality; 

(£)  to  require  and  obtain  from  any  municipality  statements 

in  detail  of  any  of  its  affairs,  financial  or  otherwise; 

(g)   to  inquire  at  any  time  into  any  or  all  of  the  affairs, 

financial  and  otherwise,  of  a  municipality; 

(h)  when  authorized  by  an  agreement  entered  into  by  two 

or  more  municipalities  to  do  so,  to  hear  and  determine 

disputes  in  relation  to  such  agreement; 

(i)  to  hear  and  determine  the  application  of  any  munici- 
pality to  confirm,  vary  or  fix  the  rates  charged  or  to  be 
charged  in  connection  with  water  or  sewage  service  supplied 
thereto  by  any  other  municipality; 

(j)  to  exercise,  generally,  such  jurisdiction  and  powers  as 
by  or  under  the  authority  of  the  Act  or  the  Municipal  Act 
or  any  other  general  or  special  Act  are  conferred  upon 
the  Board.*^^ 

The  general  jurisdiction  of  the  Board  to  supervise  the 
borrowing  powers  of  municipalities  is  not  something  that 
comes  within  the  Terms  of  Reference  of  this  Commission 
and  we  consider  it  only  in  relation  to  other  powers  that  do 
come  w^ithin  the  Terms  of  Reference. 

Jurisdiction  over  Railways  and  Utilities 

The  Board  has  jurisdiction  and  power  concerning  rail- 
ways and  public  utilities: 

(a)  to  inquire  into,  hear  and  determine  any  applications 
made,  proceedings  instituted  and  matters  brought  before  it 
under  the  provisions  of  any  general  or  special  Act  relating 
to  railways  or  public  utilities; 

(b)  to  hear  and  determine  any  application  alleging  that  a 
railway  or  public  utility  is  in  breach  of  any  statute,  regu- 
lation, by-law,  order  or  agreement; 

(c)  to  hear  and  determine  any  application  with  respect  to 
tolls  charged  in  excess  of  those  prescribed,  or  which  are 
otherwise  unlawful,  unfair  or  unjust. ^^ 

"R.S.O.  1960,  c.  274,  s.  53(1)  as  amended  by  Ont.  1961-62,  c.  96,  s.  1. 
"^Ihid.,  s.  70. 


Chapter  125         2029 

riie  Acl  provides  that  wherever, 

"(a)  any  power  or  authority  is  given  to  or  duly  imposed  upon 
the  Railway  Committee  of  the  Exctuti\e  Clountil  of 
Ontario  hy  any  Act  or  dociunent; 
(b)  by  any  Act  of  the  Legislature  the  location  of  any  line  of 
raihvay  or  the  route  and  course  thereof,  or  tiie  maps, 
plans  and  specifications,  or  any  part  of  the  equipment 
are  subject  to  the  approNal  of  the  Lieutenant  Governor 
in  Coiuicil  or  of  any  of  his  Ministers, 

such  power  or  authority  may  be  exercised  and  su(  ii  duty  shall 
be  performed  and  such  appro\al  may  be  given  by  the 
Board. "*'^ 

Except  for  the  operations  of  public  utilities  for  the  devel- 
opment or  distribution  of  power  obtained  from  the  Hydro- 
Electric  Power  Commission  of  Ontario,  the  Board  is  required 
to  superintend  the  system  of  bookkeeping  and  keeping 
accounts  of  all  railways  and  public  utilities  that  are  operated 
by  or  under  the  control  of  a  municipality  or  local  board  (as 
defined  in  the  Ontario  Municipal  Board  Act)  and  may  in- 
quire and  report  as  to  whether  they  are  being  operated  eco- 
nomically or  whether  they  are  charging  excessive  rates. ^® 

As  in  the  case  of  the  powers  of  the  Board  to  super\dse 
the  financial  affairs  of  municipalities  the  powers  of  super- 
vision of  railways  and  utilities  do  not  come  within  our  Terms 
of  Reference. 

PRACTICE  AND  PROCEDURE 

Unlike  many  other  statutes  creating  tribunals,  the  Ontario 
Municipal  Board  Act  contains  many  provisions  for  the  pro- 
cedure to  be  followed  by  the  Board.  It  is  not  necessaiy  for  us 
to  deal  with  these  provisions  in  detail.  We  shall  comment 
W'here  we  think  comment  is  required. 

"Any  rule,  regulation,  order  or  decision  of  the  Board,  when 
published  by  the  Board,  or  by  leave  of  the  Board,  for  three 
weeks  in  The  Ontario  Gazette,  and  ^vhile  the  same  remains 
in  force,  has  the  like  effect  as  if  enacted  in  this  Act,  and  all 
courts  shall  take  judicial  notice  thereof."*^^ 

"^Ibid.,  s.  72(1). 
•"Hbid.,  s.  74. 
"'Ibid.,  s.  82. 


2030         The  Ontario  Municipal  Board 

The  effect  of  this  section  is  to  delegate  considerable  legis- 
lative power  of  the  Legislature  to  the  Board.  An  order  of  the 
Board  is  to  have  the  same  effect  as  if  it  were  enacted  in  the 
Ontario  Municipal  Board  Act.  A  provision  of  a  statute  for 
the  purposes  of  law  enforcement  is  one  thing  and  an  order 
of  the  Board  is  another.  The  two  should  not  be  confused  by 
giving  the  Board  a  power  which  in  effect  amends  or  extends 
a  statute. 

If  the  purpose  of  the  section  is  to  facilitate  the  proof  of 
the  Board's  orders  in  evidence  before  the  courts  this  purpose 
could  be  achieved  in  a  much  simpler  way  by  an  appropriate 
amendment  to  section  36  of  the  Evidence  Act  or  by  striking 
out  the  words  "has  the  like  effect  as  if  enacted  in  this  Act" 
in  the  section  we  have  just  quoted.  We  recommend  that 
if  the  section  is  to  remain  these  words  be  struck  out  and  the 
appropriate  amendment  made. 

Ten  days  notice  of  any  application  to  the  Board,  or  of 
any  hearing  by  the  Board  is  sufficient,  but  the  Board  may 
abridge  or  enlarge  the  time.*^^  However,  the  Board  is 
empowered,  "upon  the  ground  of  urgency,  or  for  other  reason 
appearing  to  the  Board  to  be  sufficient",  to  proceed  as  if  due 
notice  to  the  parties  had  been  given.*'®  Where  a  person 
entitled  to  receive  notice  and  not  sufficiently  notified  is 
affected  by  an  order  of  the  Board  made  ex  parte,  he  may  apply 
to  the  Board  which  shall  hear  the  application  and  either 
amend,  alter  or  rescind  its  order  or  decision  or  dismiss  the 
application."^  The  Chairman  of  the  Board,  in  discussing  this 
matter  with  us,  stated  that  the  power  to  make  orders  ex  parte 
is  not  exercised  but  it  does  grant  leave  to  abridge  the  10-day 
period  of  notice.  In  view  of  the  fact  that  the  power  does  not 
appear  to  be  necessary  we  recommend  that  the  section  be 
repealed. 

"85.  (1)  A  certified  copy  of  an  order  or  decision  made  by  the 
Board  .  .  .  may  be  filed  in  the  office  of  the  Registrar 
of  the  Supreme  Court,  and  thereupon  becomes  and 
is  enforceable  as  a  judgment  or  order  of  the  Supreme 


Uhid.,  s.  83. 
"Ibid.,  s.  84(1). 
^Ihid.,  s.  84(2). 


Chapter  125         2031 

Court  to  the  same  effect,  but  the  order  or  decision 
may  nevertheless  be  rescinded  or  varied  by  the 
Board. 

(2)  It  is  optional  witii  the  Board  to  adopt  the  method 
provided  by  this  section  for  enforcinj^j  its  orders  or 
decisions  or  to  enforce  them  by  its  own  action.'"'^ 

Legislation  providing  that  orders  of  boards  or  tribunals 
should  be  filed  with  the  Registrar  of  the  Supreme  Court  and 
are  enforceable  as  "orders  of  the  Court"  has  been  the  subject 
of  criticism  before  this  Commission.  There  docs  not  appear 
to  be  any  good  reason  why  orders  of  the  Board  should  be  filed 
with  the  Registrar  of  the  Supreme  Court.  The  provision  in 
this  Act  is  especially  objectionable.  Since  the  Board  has 
power  to  alter  its  o^vn  orders  it  has  power  to  alter  the  records 
of  the  Court.  We  raise  the  question— if  an  order  of  the  Board 
is  filed  with  the  Registrar  of  the  Court,  what  happens  if  the 
Lieutenant  Governor  in  Council  alters  or  rescinds  it?  (See 
section  94.)  There  does  not  appear  to  be  any  provision  for 
filing  orders  of  the  Lieutenant  Governor  in  Council  wuth  the 
Registrar  of  the  Supreme  Court. 

The  Board  should  have  charge  of  its  own  processes  and 
records  of  the  orders  it  makes  and  those  made  on  appeal  to 
the  Lieutenant  Governor  in  Council  should  be  kept  by  its 
own  Registrar.  Proper  provision  should  be  made  for  their 
enforcement.  The  processes  for  enforcement  of  Court  orders 
are  not  appropriate  for  enforcement  of  all  the  Board's  orders. 

It  might  well  be  that  the  sheriff  should  be  authorized 
to  enforce  the  Board's  orders  and  that  some  of  the  provisions 
relating  to  enforcement  of  Court  orders  should  be  adopted, 
but  not  all. 

The  individual  who  does  not  comply  with  an  order  of  the 
Board  should  not  be  subject  in  all  cases  to  committal  for 
contempt  of  court. 

The  powers  conferred  under  this  section  appear  to  cover 
some  of  the  matters  covered  by  section  37  which  we  referred  to 
earlier."^^  It  provides  that  "the  Board  .  .  .  has  all  such  powers 
...  as  are  vested  in  the  Supreme  Court  with  respect  to  .  .  . 
enforcement  of  its  orders  .  .  .".  Mr.  Kennedy  has  infonned  us 

"/6irf..  s.  85. 
"p.  2027  supra. 


2032         The  Ontario  Municipal  Board 

that  since  he  has  been  Chairman  of  the  Board  it  has  never 
been  asked  to  take  proceedings  to  enforce  any  of  its  orders. 
We  recommend  that  section  85  be  repealed  and  the  words 
"enforcement  of  its  orders"  be  struck  out  of  section  37,  and 
appropriate  legislation  conforming  to  our  recommendations 
in  Report  Number  1"^  be  drafted  providing  for  the  enforce- 
ment of  the  Board's  orders. ^^ 

Rules  of  Procedure 

The  Board  is  empowered  to  make  rules  regulating  its 
practice  and  procedure. '^^  The  Board  has  exercised  this  power 
in  an  admirable  manner.'^*'  The  more  significant  rules  provide 
the  following  procedural  requirements: 

(a)  applications  to  the  Board  are  to  be  by  notice  in  writing 
and  filed  with  the  Board  and  ser\'ed  upon  the  respondent; '^'^ 

(b)  where  the  respondent  is  required  to  make  a  reply,  it  is 
to  be  in  writing  and  filed  with  the  Board  and  serv^ed  upon 
the  applicant ;'^^ 

(c)  at  least  1 0  days  after  senice  upon  the  respondent  of  the 
notice  of  application,  either  party  may  apply  to  the  Board 
for  an  order  fixing  the  time,  place  and  manner  of  hearing 
the  application;''^^ 

(d)  the  Board  may  permit  the  parties  to  file  affidavits  and 
other  documentary  evidence  at  the  hearing;^" 

(e)  the  Board  may  make  orders  for  the  production  of 
documents,  for  inspection,  for  examinations  for  discovery, 
for  examination  of  witnesses  who  for  cause  cannot  attend 
the  hearing,  and  for  the  examination  of  witnesses  residing 
outside  of  Ontario ;^^ 


"'p.  446  supra. 

^*See  specific  recommendations  concerning  section  14  of  the  Ontario  Energy 

Board  Act,  Chapter  119,  pp.  1922-23  supra.  See  recommendation  concerning 

the  Labour  Relations  Act,  Chapter  124,  p.  1994ff.  supra. 
"R.S.O.  1960,  c.  274,  s.  90. 
'«R.R.O.  1960,  Reg.  466. 
'"Ibid.,  Rules  4  and  7. 
'^Ibid.,  Rules  8  and  9. 
">Ibid.,  Rule  10. 
'°Tbid..  Rule  11. 
^'Ibid.,  Rule  14. 


Chapter  125         2033 

(f)  at  the  hearing  of  an  application,  the  party  commencing 
the  proceedings  shall  begin  and,  after  evidence  in  defence 
is  given,  has  the  right  to  reply  ;^- 

(g)  the  Board  may  direct  an  amendment  to  any  document 
filed  with  it  where,  in  its  opinion,  such  an  amendment  is 
necessary  to  determine  the  real  question  at  issue  between 
the  parties;®* 

(h)  where  any  matter  is  not  expressly  provided  for  by 
Regulation  466,  the  Rules  of  Practice  under  the  Judicature 
Act  are  to  be  followed  as  far  as  they  are  applicable,  as 
determined  by  the  Board. -^ 

There  are  10  forms  set  out  in  the  res^ulation.  These  forms 
are  prescribed  for  use  with  such  variations  as  the  circum- 
stances or  the  nature  of  the  application  require,  and  where 
no  form  is  prescribed,  the  forms  prescribed  by  the  Rules  of 
Practice  may  be  adopted.'*^ 

The  forms  contained  in  the  regulation  include:  Notice 
of  Application,  Reply,  Order  for  Production,  Affidavit  as  to 
Production  of  Documents,  Order  for  Examination  for  Dis- 
covery, Notice  to  Produce,  Notice  to  Admit,  and  Summons 
to  Witness. 

The  Board  has  prepared  and  published  certain  suggested 
procedures  with  regard  to  the  filing  of  applications  for  the 
approval  of  by-laws  under  the  Planning  Act  and  applications 
for  the  approval  of  capital  expenditures  under  setion  64  of 
the  Ontario  Municipal  Board  Act. 

"(1)  In  determining  any  question  of  fact  the  Board  is  not 
concluded  by  the  finding  or  judgment  of  any  other  court  in 
any  action,  prosecution  or  proceeding  involving  the  deter- 
mination of  such  fact,  but  such  finding  or  judgment  is,  in 
proceedings  before  the  Board,  prima  facie  evidence  only. 

(2)  Except  as  otherwise  provided  in  this  Act,  the  pendency  of 
any  action,  prosecution  or  proceeding  in  any  other  court 
involving  questions  of  fact  does  not  deprive  the  Board  of 
jurisdiction  to  hear  and  determine  the  same  questions  of  fact. 


^bid..  Rule  17. 
Ubid.,  Rule  21. 
'Ibid.,  Rule  2. 
nhid..  Rule  26. 


1^034         The  Ontario  Municipal  Board 

(3)  The  finding  or  determination  of  the  Board  upon  any 
question  of  fact  within  its  jurisdiction  is  binding  and  con- 
clusive."^^ 

These  provisions  would  appear  to  give  the  highest 
precedence  to  proceedings  before  the  Board  and  to  findings  of 
fact  made  by  the  Board.  In  stating  that  the  Board  is  not  bound 
by  a  finding  of  fact  or  judgment  of  any  other  court  previously 
concerned  with  the  same  matters  as  those  before  the  Board, 
the  Act  is  negating  a  long  established  common  law  principle 
with  respect  to  the  finality  of  judicial  proceedings  if  the 
parties  are  the  same.^^  The  purpose  of  the  common  law  prin- 
ciple is  to  prevent  inconsistent  findings  of  fact  on  identical 
issues  involving  the  same  parties  by  two  or  more  different 
tribunals.  In  this  case,  a  tribunal  is  given  power  to  override 
decisions  of  superior  courts  on  findings  of  fact. 

In  effect  the  courts  would  be  bound  by  the  decisions  of 
the  Board  on  questions  of  fact  but  the  Board  would  not  like- 
wise be  bound  by  decisions  of  the  courts.  We  think  the 
principle  of  res  judicata  should  apply  to  all  proceedings  before 
the  Board  and  that  the  Board  should  be  bound  by  the  deter- 
mination of  facts  in  the  courts  where  the  parties  and  issues  are 
the  same. 

Mr.  Kennedy  was  asked  if  there  was  any  reason  why 
rules  governing  the  Board  should  be  any  different  than  the 
rules  governing  the  courts  and  he  said:  "I  am  not  sure  that  I 
know  of  a  reason  except  that  I  have  a  general  impression  or 
understanding  that  facts  proven  before  administrative  boards 
are  not  subject  to  review  with  the  same  facility  as  facts 
established  before  the  court.  There  is,  I  think,  a  general 
principle  of  that  nature  somewhere  in  the  law  and  this  may 
be  an  expression  of  it  but  I  can  tell  you  what  we  do  in  fact. 
In  fact  where  any  issue  is  pending  before  a  court  we  consider 
that  any  hearing  of  that  issue  before  our  Board  would  be  a 
public  discussion  of  an  issue  pending  before  the  court  and  we 
refrain  from  dealing  with  it  at  all  until  the  court  has  disposed 
of  it." 

The  Act  should  give  the  Board  power  to  order  a  stay 
of  its  proceedings  in  such  cases. 

^''R.S.O.  1960,  c.  274,  s.  92. 

^'Halshury's  Laws  of  England,  3rd  ed.,  Vol.  15,  182-4,  187,  212-4. 


Chapter  125         2035 

Where,  however,  proceedings  are  pending  in  a  court  or 
other  tribunal  with  respect  to  a  matter  also  pending  before 
the  Board,  any  party  to  the  proceedings  should  be  j)crniitted 
to  apply  to  the  court  or  other  tribiuial  for  a  stay  of  proceed- 
ings until  the  Board  has  made  its  decision. 

APPEALS 

Appeal  by  Way  of  Stated  Case 

The  Board  may  state  a  case  in  writing  to  the  Court  of 
Appeal  for  its  opinion  on  any  qtiestion  that,  in  the  opinion 
of  the  Board,  is  a  question  of  law.^^  The  case  may  be  stated  at 
the  request  of  the  Lieutenant  Governor  in  Council,  of  its  own 
motion,  or  upon  the  application  of  any  party  and  upon  post- 
ing such  security  for  costs  as  the  Board  may  direct.  The  Court 
of  Appeal  is  required  to  hear  and  determine  the  case  and  to 
"remit  it  to  the  Board  with  the  opinion  of  the  Court 
thereon. "^'^  This  right  is  in  addition  to  the  right  of  appeal  to 
the  Com  t  of  Appeal  on  a  question  of  jurisdiction  or  law  w^ith 
the  leave  of  that  Court. ^" 

The  provision  for  a  stated  case  is  a  good  provision  if 
properly  interpreted.  If  a  question  of  law  arises  during  a 
hearing  upon  which  the  parties  cannot  agree  and  which  is 
crucial  to  the  proper  determination  of  the  issue,  the  hearing 
may  be  adjourned  to  permit  the  Board  to  state  a  case  to  the 
Court  of  Appeal.  This  gives  the  Board  an  opportunity  to  have 
questions  of  law  settled  before  the  termination  of  the  proceed- 
ings so  that  it  may  proceed  in  accordance  w'ith  the  opinion  of 
the  Court  of  Appeal.  The  parties  are  enabled  to  resolve  a 
contentious  issue  of  law  early  in  the  proceedings  and  obviate 
the  necessity  of  a  subsequent  application  for  leave  to  appeal 
to  the  Court  of  Appeal. 

How^ever,  the  Act  is  silent  as  to  the  stage  at  which  a  case 
may  be  stated,  as  to  whether  the  Board  is  compelled  to  act  in 
accordance  with  the  opinion  of  the  Court  of  Appeal  as  it 
must  do  following  an  appeal,  and^^  as  to  whether  the  opinion 
of  the  Court  of  Appeal  is  final  and  conclusive. 

'"R.S.O.  I960,  c.  274,  s.  93(1). 
^"Ibid.,  s.  93(2). 
'"Ibid.,  s.  95. 
"^Ibid.,  s.  95(3). 


2036         The  Ontario  Municipal  Board 

All  these  matters  should  be  clarified  by  proper  amend- 
ment to  the  statute. 

There  is  another  area  of  uncertainty.  If  the  Court  of 
Appeal  refuses  to  grant  leave  to  appeal,®^  may  the  Board  state 
a  case  for  the  opinion  of  the  Court  of  Appeal?  Such  would 
appear  to  be  possible.  This  power  should  not  be  exerciseable 
after  a  party  has  invoked  either  successfully  or  unsuccessfully 
the  leave  to  appeal  provisions. 

The  Board  should  not  have  the  exclusive  power  to 
determine,  as  a  condition  precedent  to  stating  a  case,  whether 
the  issue  involved  is  "a  question  of  law."  If  the  Board  refuses 
to  state  a  case  any  party  to  the  proceedings  should  have  a  right 
to  apply  to  the  Court  of  Appeal  for  an  order  that  the  Board 
state  a  case  as  in  the  Public  Inquiries  Act.^^  In  Report  Num- 
ber 1  we  discussed  the  provisions  of  the  Public  Inquiries  Act 
with  reference  to  procedure  by  way  of  stated  case  and  made 
recommendations  for  its  amendment. ^^  What  we  said  there 
has  application  to  the  procedure  we  have  been  discussing. 

The  provision  giving  the  Lieutenant  Governor  in 
Council  power  to  request  the  Board  to  state  a  case  to  the 
Court  of  Appeal  is  too  broad. ^^  On  the  face  of  it,  this  power 
would  appear  to  be  exerciseable  by  the  Lieutenant  Governor 
in  Council,  even  though  no  appeal  is  pending  before  the 
Council  for  hearing.  This  may  not  be  the  intended  purpose 
of  the  provision  but  the  power  would  appear  to  be  there.  The 
exercise  of  such  a  power  would  be  to  use  the  Court  of  Appeal 
to  get  an  opinion,  a  purpose  for  which  the  Court  ought  not 
to  be  used  except  in  constitutional  matters. 

The  power  should  be  restricted  to  those  cases  where  an 
appeal  has  been  taken  from  a  decision  of  the  Board  to  the 
Lieutenant  Governor  in  Council. ^^ 

Appeal  to  the  Court  of  Appeal 

Subject  to  the  provisions  of  Part  IV  of  the  Act,  an  appeal 
lies  from  the  Board  to  the  Court  of  Appeal,  with  the  leave  of 

^-Ihid.,  s.  95(1). 
""R.S.O.  1960,  c.  323,  s.  5(2). 
'*p.  453,  ff.  supra. 
"^R.S.O.  1960,  c.  274,  s.  93(1). 

^'See  ibid.,  s.  94  as  re-enacted  by  Ont.  1961-62,  c.  96,  s.  3(1)  and  amended  by 
Ont.  1965,  c.  89,  s.  2. 


Chapter  125         2037 

that  Court,  upon  a  question  ot  jurisdiction  or  upon  any 
question  of  law.^^  The  Court  of  Appeal  is  empowered  to  draw 
all  such  inferences  as  are  not  inconsistent  with  the  facts 
expressly  foiuid  by  the  Board  and  are  necessary  for  determin- 
ing the  question  of  jurisdiction  or  law  and  the  Court  is 
required  to  certify  its  opinion  to  the  Board,  which  must  then 
make  an  order  in  accordance  with  such  opinion.''*^  1  he  Board 
is  entitled  to  be  heard,  by  counsel  or  otherwise,  upon  the 
argument  of  the  appeal  before  the  Court.'*'"'  1  he  Supreme 
Court  has  the  power  to  fix  the  costs  and  fees  to  be  taxed, 
allowed  and  paid  on  appeals,^"*'  but  neither  the  Board  nor 
any  of  its  members  is  liable  for  any  costs  by  reason  or  in 
respect  of  any  appeal  or  application  under  this  section/"^ 

What  the  words  "subject  to  the  provisions  of  Part  IV" 
mean  is  obscure.  The  section  concerns  appeals  but  Part  IV 
of  the  Act  which  is  concerned  with  "General  Municipal 
Jurisdiction"  contains  no  provisions  respecting  appeals.  The 
Chairman  of  the  Board  stated  that  he  did  not  know  the 
meaning  of  the  restrictive  w^ords,  but  he  suggested  that  they 
may  mean  that  no  appeal  lies  from  any  decision  of  the  Board 
made  under  Part  IV.  If  that  is  what  the  words  mean  the 
intention  should  be  made  clear  by  a  simple  statement  that  a 
right  of  appeal  to  the  Court  of  Appeal  does  not  lie  from 
decisions  of  the  Board  made  under  Part  IV  of  the  Act. 

Mr.  Kennedy  advised  the  Commission  that  in  cases 
where  a  right  of  appeal  exists  under  a  statute  the  Board 
usually  provides  a  reporter  to  transcribe  the  evidence.  How- 
ever, in  those  cases  where  there  is  no  absolute  right  of  appeal, 
but  only  an  appeal  with  leave,  no  stenographic  record  is  kept. 
This  may  present  great  hardship  to  the  parties  in  exercising 
their  right  to  appeal  to  the  Court  of  Appeal.  Provision  should 
be  made  for  a  transcript  of  the  evidence  given  at  hearings 
before  the  Board  where  required  by  the  parties. 

Where  the  Court  of  Appeal  grants  leave  to  appeal  "the 
Registrar  shall  set  the  appeal  down  for  hearing  at  the  next 
sittings,  and  the  party  appealing  shall,  within  ten  days,  give 

"'Ibid.,  s.  95(1). 
"^Ibid..  s.  95(3). 
""Ibid.,  s.  95(4). 
'""Ibid.,  s.  95(5). 
'"'Ibid.,  s.  95(6). 


2038         The  Ontario  Municipal  Board 

to  the  parties  affected  by  the  appeal  .  .  .  and  to  the  secretary, 
notice  in  writing  that  the  appeal  has  been  set  down  .  .  ."^"^ 
This  is  a  mandatory  provision  and  if  the  applicant  fails  to 
take  a  step  within  the  required  time  the  Court  cannot  hear 
the  appeal/^^  The  Court  should  be  given  a  discretion  to 
relieve  against  hardship  that  may  be  created  by  this  procedural 
rule. 

The  section  just  quoted  is  difficult,  if  not  impossible,  to 
apply  in  practice  and  is  at  variance  with  the  Rules  of  Practice 
and  Procedure  of  the  Supreme  Court,  It  obliges  the  Registrar 
to  "set  the  appeal  down  for  hearing  at  the  next  sittings."  The 
Rules  of  Practice,  relating  to  appeals  to  the  Court  of  Appeal, 
require  that  an  "appeal  shall  be  set  down  for  hearing  by  filing 
the  notice  of  motion  [by  way  of  appeal]  and  proof  of  service 
within  five  days  after  service"  (Rule  498(a)).  Therefore  an 
appeal  cannot  be  set  down  until  the  notice  of  appeal  has 
been  served  and  filed  with  the  Registrar.  In  view  of  this,  one 
asks  how  can  the  Registrar  set  down  an  appeal  for  hearing 
at  the  next  sittings  if  the  notice  of  appeal  has  not  been  served 
and  filed?  Rule  500  provides  that  'unless  otherwise  provided, 
in  an  appeal  under  a  statute  where  leave  to  appeal  is  necessary 
...  if  leave  is  given,  notice  of  appeal  shall  be  served  and  the 
appeal  shall  be  set  down  for  hearing  within  seven  days  after 
the  granting  of  leave."  Here  again  the  statute  and  the  Rules 
of  Practice  are  at  variance. 

We  recommend  that  section  95(2)  of  the  Ontario  Munic- 
ipal Board  Act  be  amended  to  conform  to  the  Rules  of 
Practice  with  respect  to  appeals. 

The  statute  does  not  make  it  clear  that  the  remedies  by 
way  of  a  rehearing  and  rights  of  appeal  by  way  of  stated  case, 
appeal  to  the  Court  of  Appeal  and  petition  to  the  Lieutenant 
Governor  in  Council,  may  not  be  exercised  by  different 
parties  to  the  same  proceedings  at  the  same  time.  A  similar 
confusion  was  considered  in  Re  Martin  and  Brant'^^'^  and 
resolved  by  judicial  decision  which  may  have  application  to 
the  provisions  we  have  been  discussing. 

^"^Ibid.,  s.  95(2). 

^°'i?e  Langs  and  Town  of  Preston,  [1968]  1  O.R.  102. 

^°*[1970]  1  O.R.  1. 


Chapter  125         2039 

Statutory  rights  of  appeal  should  be  uiadc  clear  and 
precise  so  that  persons  affected  may  act  with  a  reasonable 
degree  of  certainty,  knowing  in  advance  what  their  rights  and 
remedies  are. 

Under  the  Assessment  Act  an  appeal  lies  from  the  county 
judge  to  the  Board^"^  and  from  the  Board  to  the  Court  of 
Appeal  from  a  decision  of  the  Board  "upon  all  questions  of 
law  or  the  construction  of  a  statute,  a  municipal  by-law,  any 
agreement  in  writing  to  which  the  miuiicipality  concerned  is 
a  party,  or  any  order  of  the  Board. "^''^  This  is  a  right  of  appeal 
without  leave  and  is  in  conflict  with  section  95  of  the  Ontario 
Municipal  Board  Act.  There  is  like  conflict  with  other 
statutes.  For  example,  in  the  Highway  Improvement  Act^"' 
there  is  a  provision  that  there  shall  be  no  right  of  appeal 
from  a  decision  of  the  Board  under  the  relevant  section.  On 
the  other  hand,  under  the  Municipality  of  Metropolitan 
Toronto  Act^°*  a  right  of  appeal  is  given  upon  leave  of  the 
Court  of  Appeal  from  an  order  of  the  Municipal  Board  con- 
cerning the  closing  of  a  road^^''  and  it  is  provided  that  section 
95  of  the  Ontario  Municipal  Board  Act  shall  not  apply  to 
such  appeal.^"  The  result  is  that  from  some  decisions  of  the 
Board  an  appeal  lies  as  of  right  and  from  some  with  leave  of 
the  Court  of  Appeal  and  from  some  there  is  no  right  of  appeal. 
This  creates  confusion  and  unnecessary  litigation.' ^^  Unless 
clear  reason  can  be  demonstrated  to  the  contrary,  the  rights 
of  appeal  from  decisions  of  the  Board  should  be  uniform  irre- 
spective of  the  statute  under  which  powers  of  decision  are 
conferred  on  it. 

Appeal  to  the  Lieutenant  Governor  in  Council 

Any  party  or  person  interested  may  within  28  days  after 
any  order  or  decision  of  the  Board  petition  the  Lieutenant 
Governor  in  Council  with  respect  thereto.  The  Lieutenant 
Governor  in  Council  may  then  either  confirm,  vary  or  rescind 

^"■^Ont.  1968-69,  c.  6,  s.  63(2). 
^"Hhid.,  s.  63(6). 
"'R.S.O.  1960.  c.  171,  s.  103(2). 
""R-S-O.  1960,  c.  260. 

Ihid.,  s.  98(8). 

Ibid.,  s.  98(11). 

See   Windsor  v.  Hiram   Walker,  Gooderham  and   Worts  Ltd.  et  al,   [1944] 

O.W.N.  691. 


10« 
110 

111 


2040  The  Ontario  Municipal  Board 

the  whole  or  any  part  of  the  order  or  decision,  or  require  the 
Board  to  hold  a  fresh  public  hearing  of  the  whole  or  any  part 
of  the  application  upon  which  the  order  or  decision  of  the 
Board  was  made.^^^ 

A  similar  provision  is  found  in  section  14  of  the 
Municipal  Act,^^^  which  requires  Municipal  Board  approval 
of  amalgamations  and  annexations.  Section  14(15)^^^  provides 
that  section  94  of  the  Ontario  Municipal  Board  Act  does  not 
apply  to  a  decision  of  the  Board  granting  or  refusing  an  appli- 
cation for  amalgamation  or  annexation,  but  subsections  (16) 
and  (17)  of  section  14  enable  a  notice  of  objection  to  the 
decision  of  the  Board  to  be  filed  with  the  Clerk  of  the  Execu- 
tive Council  by  10%  of  the  persons  qualified  to  vote  on 
money  by-laws  and  resident  in  any  of  the  municipalities 
affected  by  the  order  of  the  Board.  Where  such  objection  is 
filed,  "the  Lieutenant  Governor  in  Council  may  by  order, 

(a)  confirm  the  decision  of  the  Municipal  Board;  or 

(b)  require  the  Municipal  Board  to  hold  a  new  public  hear- 
ing of  the  annexation  or  amalsfamation  application  be- 
fore such  members  of  the  Board  as  the  Lieutenant  Gov- 
ernor in  Council  mav  designate. "^^^ 

There  are  powers  of  the  Board  that  should  come  under 
the  appellate  supervision  of  the  Lieutenant  Governor  in 
Council  but  where  the  powers  exercised  by  the  Board  are 
judicial  or  interlocutorv  there  should  be  no  right  of  appeal 
to  the  Lieutenant  Governor  in  Council.  In  such  cases  a  party 
to  a  proceeding  before  the  Board  should  not  be  in  jeopardy 
of  having  a  favourable  decision,  which  mav  have  been  con- 
firmed by  the  Court  of  Appeal,  set  aside  bv  the  Lieutenant 
Governor  in  Council,  and  the  decision  of  the  executive 
substituted  or  a  new  hearing  ordered. 

The  power  vested  in  the  Lieutenant  Governor  in  Council 
to  entertain  appeals  from  decisions  of  the  Board  should  not 
extend  to  judicial  decisions. 


""R.S.O.  lOfiO,  c.  274,  s.  94  as  re-enacted  bv  Ont.  1961-62,  c.  96,  s.  3(1)  and 

amended  bv  Ont.  1965,  c.  89,  s.  2. 
"'R.S.O.  1960.  c.  249. 

"*7&;W.,  s.  14fl5V  as  amended  by  Ont.  1968,  c.  76,  s.  1. 
"=/fc/rf.,  s.  14(19). 


I 


Chapter  12.5         2041 

JUDICIAL  REVIEW 

Every  decision  of  the  Board  is  final  and  no  order,  decision 
or  proceeding  of  the  Board  shall  be  questioned  or  reviewed, 
restrained  or  removed  by  prohibition,  injunction,  certiorari 
or  any  other  process  or  proceeding  in  any  court,  save  as 
provided  in  section  95  and  sections  42  and  94. ^'''' 

We  recommended  in  Report  Number  1  that  privative 
clauses  in  all  statutes  should  be  repealed. ^^' 

Section  95(7)  should  be  repealed. 

RECOMMENDATIONS 

1.  A  complete  catalogue  of  the  powers  conferred  on  the 
Board  should  be  made  available  to  the  public. 

2.  A  study  should  be  made  of  ^vays  and  means  to  make  more 
effective  use  of  the  personnel  of  the  Board  by  giving 
power  to  one  member  of  the  Board  to  conduct  less 
important  or  more  routine  hearings  so  as  to  make  it 
possible  to  assign  three  members  of  the  Board  to  more 
difficult  hearings  and  to  hearings  for  the  review  of 
previous  decisions  under  section  42  of  the  Act. 

3.  The  provisions  of  section  38  concerning  references  to 
the  Board  under  letters  patent  issued  under  the  Corpora- 
tions Act  or  any  general  or  special  Act  and  power  to 
conduct  hearings  should  be  repealed. 

4.  The  Board  should  not  have  power  on  its  own  motion  to 
enter  upon  the  determination  of  any  matter  in  which  it 
exercises  a  judicial  function. 

5.  The  Lieutenant  Governor  in  Council  should  not  have 
power  to  require  the  Board  to  exercise  its  judicial  func- 
tions unless  the  Government  has  an  interest  in  the 
matter  to  be  determined. 

6.  The  statute  should  define  the  administrative  powers 
that  the  Board  should  have  to  exercise  on  its  own  motion 
and  those  administrative  matters  that  the  Lieutenant 
Governor  in  Council  should  have  the  power  to  ask  the 
Board  to  determine. 


"R.S.O.  1960,  c.  274,  s.  95(7). 

''pp.  277-79  and  recommendation  74  at  p.  1267  supra. 


2042         The  Ontario  Municipal  Board 

7.  The  Lieutenant  Governor  in  Council  should  not  have 
power  to  appoint  counsel  to  appear  before  the  Board  on 
any  matter  in  which  the  Government  has  no  interest. 
Nor  should  the  Board  have  power  to  award  the  costs  of 
counsel  appearing  on  behalf  of  the  Government  against 
other  parties  to  a  dispute  before  the  Board.  Section  41 
should  be  repealed. 

8.  Where  the  Board  exercises  judicial  functions  there 
should  be  no  right  to  a  rehearing  before  the  Board  but 
wide  rights  of  appeal  should  be  provided. 

9.  There  should  be  no  power  to  grant  a  rehearing  of  a 
rehearing  except  in  defined  exceptional  circumstances. 

10.  Sections  36(1  )(c)  and  47  should  be  redrafted  so  as  to 
confine  the  compulsive  powers  of  the  Board  to  matters 
over  which  it  has  jurisdiction  to  exercise  a  power  of 
decision. 

11.  Section  48  conferring  on  the  Board  wide  powers  to 
require  any  person,  company,  corporation  or  municipal- 
ity subject  to  its  jurisdiction  to  adopt  such  precautions 
as  the  Board  may  deem  expedient  for  the  safety  of  life 
or  property  should  be  repealed. 

12.  Section  49  should  be  repealed. 

13.  Section  50  should  be  repealed.  If  there  is  default  with 
respect  to  orders  coming  within  the  section  they  should 
be  enforced  through  the  courts  with  proper  provisions 
for  a  hearing. 

14.  Section  51  providing  that  the  Board  has  power  to  enforce 
its  orders  and  directions  respecting  any  public  utility  in 
the  manner  and  by  the  means  provided  in  section  261  of 
the  Railways  Act  should  be  repealed. 

An  appropriate  section  should  be  enacted  as  part  of 
the  Ontario  Municipal  Board  Act  conferring  on  the 
Board  only  such  powers  as  may  be  necessary  for  the 
enforcement  of  its  orders  and  complying  with  our  recom- 
mendations in  Report  Number  1  (p.  44 Iff.). 

1 5.  The  Board  should  not  have  power  to  make  orders  for  the 
seizure  of  public  utilities. 


Chapter  125         2043 

16.  Section  37  conferring  on  the  Board  such  powers  for  the 
enforcement  of  its  orders  as  are  vested  in  the  Supreme 
Court  should  be  amended  so  as  to  conform  to  our  recom- 
mendation in  Report  Number  1  (p.  446). 

17.  Section  52  conferring  the  powers  vested  in  any  court  of 
civil  jurisdiction  on  inspecting  engineers  or  persons 
appointed  under  the  Act  to  make  an  inquiry  should  be 
repealed. 

18.  Section  82  should  be  amended  so  that  orders  or  decisions 
of  the  Board  will  not  have  "the  like  effect  as  if  enacted 
in"  the  Act. 

19.  Section  84(2)  conferring  powers  on  the  Board  to  make 
orders  ex  parte  should  be  repealed. 

20.  Section  85  providing  for  filing  orders  of  the  Board  in  the 
Office  of  the  Registrar  of  the  Supreme  Court  and  the 
enforcement  of  its  orders  as  judgments  of  the  Supreme 
Court  should  be  repealed  and  provision  made  for  filing 
all  orders  of  the  Board  or  those  of  the  Lieutenant  Gover- 
nor in  Council  made  on  appeal  from  an  order  of  the 
Board  with  the  Registrar  of  the  Board  and  for  their 
enforcement. 

21.  The  processes  of  the  enforcement  of  orders  of  the 
Supreme  Court  are  not  generally  appropriate  for  the 
enforcement  of  the  Board's  orders.  Provision  should  be 
made  for  the  enforcement  of  the  Board's  orders  conform- 
ing to  our  recommendations  in  Report  Number  1 
(p.  446). 

22.  The  principle  of  res  judicata  should  apply  to  decisions 
of  the  Board.  The  Board  should  be  bound  by  the  deter- 
mination of  facts  by  the  courts  where  the  parties  are  the 
same. 

23.  The  Board  should  have  clear  statutory  power  to  order  a 
stay  of  its  proceedings  where  the  issue  before  it  is  involved 
in  a  matter  pending  before  the  courts. 

24.  Where  proceedings  are  pending  in  a  court  or  other 
tribunal  with  respect  to  a  matter  pending  before  the 
Board  any  party  to  the  proceedings  should  be  permitted 


2044         The  Ontario  Municipal  Board 

to  apply  to  the  court  or  other  tribunal  for  a  stay  of  the 
proceedings  until  the  Board  has  made  its  decision. 

25.  It  should  be  made  clear  that  an  application  for  a  stated 
case  may  be  made  at  any  stage  of  the  proceedings  before 
the  Board. 

26.  Where  judgment  is  given  on  a  stated  case  the  Board 
should  be  required  to  act  in  accordance  with  the  judg- 
ment of  the  Court  of  Appeal. 

27.  When  a  case  has  been  stated,  the  opinion  of  the  Court  of 
Appeal  should  be  final  and  conclusive. 

28.  If  the  Board  refuses  to  state  a  case  any  party  to  the 
proceedings  should  have  a  right  to  apply  to  the  Court  of 
Appeal  for  an  order  that  the  Board  state  a  case. 

29.  The  power  vested  in  the  Lieutenant  Governor  in  Council 
to  require  the  Board  to  state  a  case  for  the  Court  of 
Appeal  should  be  restricted  to  those  cases  where  an 
appeal  has  been  taken  to  the  Lieutenant  Governor  in 
Council  from  a  decision  of  the  Board. 

30.  It  should  be  made  clear  that  a  right  of  appeal  to  the 
Court  of  Appeal  does  not  lie  from  decisions  made  under 
Part  IV  of  the  Act  if  that  is  the  legislative  intention. 

31.  Provision  should  be  made  to  provide  a  transcript  of  pro- 
ceedings before  the  Board  where  required  by  the  parties. 

32.  Section  95(2)  making  provision  for  a  mandatory  pro- 
cedure concerning  the  setting  doivn  of  appeals  should  be 
amended  to  make  the  procedure  conform  with  that  set 
down  in  the  Rules  of  Practice  and  Procedure  of  the 
Supreme  Court.  The  Court  should  have  power  to  relieve 
against  hardship  in  the  enforcement  of  the  rules. 

33.  The  rights  of  appeal  from  decisions  of  the  Board  should 
be  uniform  irrespective  of  the  statute  under  which  the 
powers  of  decision  are  conferred. 

34.  There  should  be  no  right  of  appeal  to  the  Lieutenant 
Governor  in  Council  from  a  decision  of  the  Board  where 
the  power  of  decision  exercised  is  a  judicial  or  inter- 
locutory decision. 

35.  The  privative  clause  of  the  statute,  section  95(7),  should 
be  repealed. 


APPENDIX  TO  CHAPTER  125 


Statute  Granting 
Power 

The  Assessment  Act, 
Ont.  1968-69,  c.  6 

s.  29(3) 

s.  31(8) 

s.  63(1)(2) 


s.  63(3) 


The  Cemeteries  Act, 
R.S.O.  1960,  c.  47 

s.  71 


s.  72 


The  Conservation 
Authorities  Act, 
Ont.  1968,  c.  15 

s.  22(1) 


s.  23(2) 


Nature  of  Power 


To  hear  and  determine  complaints  against 
municipal  by-laws  exempting  certain  farm 
lands  from  taxation  for  certain  expendi- 
tures. 

To  settle  disputes  between  a  municipality 
and  the  owner  of  a  golf  course  over  an 
agreement  for  a  fixed  assessment  of  land. 

To  hear  appeals  from  a  decision  of  a  county 
judge  concerning  complaints  with  relation 
to  additions  or  omissions  from  the  assess- 
ment roll,  the  amount  of  an  assessment, 
or  from  the  Department  with  respect  to  an 
equalization  factor. 

To  hear  appeals  from  the  Assessment 
Review  Court  in  assessments  over  |50,000. 


To  make  an  order  vesting  land  used  for 
cemetery  purposes  in  trustees. 

To  make  an  order  closing  a  road  allowance 
and  vesting  the  land  in  cemetery  trustees. 


To  make  an  order  approving  a  project  of  a 
conservation  authority  where  the  full  cost 
is  not  to  be  recovered  until  subsequent 
years. 

To  vary  or  confirm  the  apportionment  of 
benefit  of  a  project  to  participating  muni- 
cipalities as  determined  by  a  conservation 
authority. 

2045 


2046         The  Ontario  Municipal  Board 


The  Conservation 

Authorities  Act, 

Ont.  1968,  c.  \b-Cont. 

s.  31 


5.36 


To  determine  on  appeal  the  value  of  land 
of  a  conservation  authority  for  assessment 
purposes. 

To  approve  all  salaries,  expenses  and  allow- 
ances paid  to  members  of  conservation 
authorities. 


The  Damage  by  Fumes 
Arbitration  Act, 
R.S.O.  1960,  c.  86 

S.5 


The  Department  of 
Municipal  Affairs  Act, 
R.S.O.  1960,  c.  98, 
Part  III 

s.  29 


s.  31 


s.  33 


s.  36 


The  Highway 
Improvement  Act, 
R.S.O.  1960,  c.  171 


s.  37(2) 


s.  62(2) 


To  hear  and  determine  an  appeal  from  the 
award  of  an  arbitrator  appointed  under  the 
Act. 


To  conduct  an  inquiry  into  the  affairs  of 
any  municipality  and  to  make  an  order 
vesting  in  the  Department  of  Municipal 
Affairs  control  and  charge  over  the  admin- 
istration of  the  affairs  of  the  municipality. 

To  hear  an  appeal,  on  the  direction  of  the 
Minister,  from  an  order  of  the  Depart- 
ment. 

To  grant  leave  to  commence  or  continue 
an  action  against  a  municipality  under 
Part  III. 

To  give  authorizations  and  directions  with 
respect  to  the  indebtedness  of  a  munici- 
pality coming  within  Part  III. 


To  approve  the  closing  of  any  road  as 
ordered  by  the  Minister  of  Highways  that 
intersects  or  runs  into  a  controlled-access 
highway. 

To  determine  any  differences  between 
adjoining  municipalities  with  regard  to  the 
construction,  repair  and  maintenance  of 
bridges  and  roads  which  form  boundary 
lines  between  the  municipalities. 


I 


Appendix  to  Chapter  125         2047 


The  Highway 
Improvement  Act, 
R.S.O.  1960,  c.  l7l-Cont. 

s.  92  as  re-enacted 
by  Ont.  1967, 
c.  34,  s.  7 

s.  93 


s.  103(2) 


To  approve  any  municipal  by-law  desig- 
nating any  road  as  a  controlled-access  road. 

To  approve  any  municipal  by-law  closing  a 
municipal  road  that  intersects  or  runs  into 
a  controlled-access  road. 

To  determine  the  proportionate  share  of 
the  costs  of  widening  a  highway  or  a  road 
where  the  parties  concerned  are  unable  to 
so  agree. 


The  Homes  for  the 
Aged  and  Rest 
Homes  Act, 
R.S.O.  1960,  c.  174 

ss.  11,21 


s.  22 


To  approve  the  issue  of  debentures  to 
finance  the  purchase  and  construction  of  a 
home  for  the  aged. 

To  make  orders  concerning  the  financial 
affairs  of  any  homes  for  the  aged  estab- 
lished in  a  territorial  district  before  April 
1,  1954. 


The  Local 
Improvement  Act, 
R.S.O.  1960,  c.  223 

s.  6 


s.  8 

ss.  18,  19,68 
s.27 

s.  30 


To  approve  the  opening,  widening  or 
extension  of  a  street  or  the  construction  of 
a  bridge  the  cost  of  which  is  to  exceed 
$50,000. 

To  approve  by-laws  for  the  construction  of 
curbs,  sidewalks,  sewers,  watermains,  road 
surfaces,  etc.,  as  local  improvements. 

To  approve  the  amendment  or  variation 
of  certain  local  improvement  by-laws. 

To  approve  by-laws  for  the  assumption  by 
a  municipality  of  a  larger  share  of  the  costs 
of  certain  specified  works. 

To  approve  by-laws  for  the  opening,  widen- 
ing, extension,  grading  or  paving  of  a  lane, 
or  the  construction  of  a  sewer  or  drain  in 
a  lane. 


2048         The  Ontario  Municipal  Board 


The  Local 
Improvement  Act, 
R.S.O.  1960,  c.  223-Conf. 

s.  51(4) 


s.  72 


To  hear  appeals  from  the  decision  of  a 
county  or  district  court  judge  affirming  or 
varying  a  special  assessment  of  lands  bene- 
fitting from  local  improvements. 

To  approve  the  form  of  by-laws,  notices 
and  other  proceedings  authorized  by  the 
Act. 


The  Mining  Tax  Act, 
R.S.O.  1960,  c.  242 

s.  10(3)  as  amended  by 
Ont.  1968-69, 
c.  69,  s.  3(2) 

The  Municipal  Act, 
R.S.O.  1960,  c.  249 

s.  10  as  amended  by 
Ont.  1960-61, 
c.  59,  s.  1 

s.  1 1  as  amended  by 
Ont.  1966,  c.  93, 
s.  1 


s.  13(2)(3),  as  re-enacted 
by  Ont.  1962-63, 
c.  87,  s.  1 

s.  14(2) 
s.  16(3) 

s.  24 

s.  25(2) 
s.  252(1) 


To  hear  appeals  on  reference  from  the 
Minister  from  assessments  for  provincial 
tax. 


To  incorporate  the  inhabitants  of  a  locality 
as  an  improvement  district,  a  township,  a 
village  or  a  town. 

To  erect  an  improvement  district  to  a 
village  township  or  town,  a  village  or  town- 
ship to  a  town,  and  a  village,  town  or 
township  to  a  city. 

To  divide  a  municipality  into  wards. 


To  alter  municipal  boundaries  by  amalga- 
mation and  annexation. 

To  separate  a  township  from  a  union  of 
townships,  or  to  establish  a  union  of  town- 
ships. 

To  create  inter-urban  areas  for  the  joint 
administration  by  two  or  more  municipali- 
ties of  such  matters  as  education,  fire  and 
police  protection,  highways,  sewers,  public 
health,  welfare  and  public  utilities. 

To  dissolve  municipalities  and  local  boards 
and  to  detach  from  a  municipality  a  part 
or  parts  thereof. 

To  authorize  one  municipality  to  raise  the 
whole  amount  required  for  a  joint  under- 
taking by  the  issue  of  its  debentures. 


Appendix  to  Chapter  123         2040 


The  Municipal  Act, 
R.S.O.  19G0,  c.  249-Cont. 


s.  274(5)  To  extend  the  time  within  which  a  local 

mmiicijKility  must  pass  a  by-law,  after  the 
proposed  by-law  has  received  the  approval 
of  the  electors. 

s.  282(8)  To  extend  the  time  within  which  a  muni- 

cipality is  required  to  issue  a  debenture. 

s.  284(1)  To  approve  the  mode  of  the  payment  of 

the  principal  and  interest  of  a  debenture. 

s.  285(3)  To  approve  any   by-law  for   the   issuance 

of  debentures  in  sterling  or  in  U.S.  dollars. 

s.  289(1)  To  authorize  the  variance  of  interest  rates 

on  municipal  debentures. 

s.  290  To  approve  the  repeal  of  any  by-law  pro- 

viding for  the  raising  of  money  where  only 
part  of  the  money  has  been  raised. 

s.  287(1)  To  approve  the  duration  of  any  contract 

by  a  municipal  corporation  for  the  supply 
of  any  services  of  a  public  utility  to  the 
inhabitants  of  the  municipality. 

s.  303(3)  To  approve  the  apjDlication  of  funds  raised 

from  the  sale  of  debentures  for  purposes 
other  than  those  for  which  they  were 
issued. 

s.  306  To  appro\e  the  application  of  any  excess 

income  derived  from  the  investment  of 
sinking  funds  Avhere  such  income  exceeds 
the  requirements  of  the  funds. 

s.  307  To  approve   the   exemption   of  a   munici- 

pality from  the  requirement  of  raising  any 
further  sums  with  respect  to  a  debt  where 
there  is  a  sufficient  amount  in  a  sinking 
fund. 

s,  313  To  approve  certain  investments  of  a  muni- 

cipal sinking  fund. 

s.  314  To  direct  the  use  of  a  sinking  fund  for  the 

redemption  of  debentures. 

s.  327(3)(b)  To    approve    the   method   of   raising    the 

amount  required  to  pay  a  deficit  incurred 
in  the  sale  of  debentures. 

s.  329(3)  To    approve    a    municipality's    borrowing 

more  than  70%  of  the  uncollected  balance 
of  its  estimated  revenues. 


2050         The  Ontario  Municipal  Board 


The  Municipal  Act, 
R.S.O.  1960,  c.  249-Con^ 

s.  338(8) 
s.  338(4) 


s.  338(3) 
s.  339(2) 

s.  377,  para.  69(b) 
s.  379(1),  para.  47 
s.  379(1),  para.  52(c) 


s.  379(1),  para.  76  as 

re-enacted  by  Ont. 
1968,  c.  76,  s.  21(5) 

s.  379(1),  para.  88 


s.  379(1),  para.  118 


s.  379e,  as  enacted  by 
Ont.  1965,  c.  77, 
s.  29  and  amended 
by  Ont.  1966, 
c.  93,  s.  25  and 
further  amended 
by  Ont.  1968-69, 
c.  74,  s.  20 


To  defer  entry  onto  lands  required  for 
highway  purposes. 

To  grant  leave  to  repeal  or  amend  munic- 
ipal by-laws  deferring  entry  onto  lands 
for  highway  purposes. 

To  grant  an  order  approving  entry  onto 
land  for  highway  purposes  prior  to  the  date 
for  entry  set  out  in  the  by-law. 

To  approve,  municipal  by-laws,  their 
amendment  or  repeal,  fixing  as  a  building 
line  the  minimum  distance  from  the  limit 
of  a  highway  at  which  buildings  may  be 
erected  or  placed. 

To  approve  municipal  by-laws  concerning 
the  location  of  commemorative  monu- 
ments. 

To  approve  municipal  by-laws  empower- 
ing a  municipality  to  buy,  store  and  sell 
fuel  and  food. 

To  approve  municipal  by-laws  authorizing 
the  completion,  improvement,  alteration, 
enlargement  or  extension  of  any  public 
utility  undertaking  owned  by  the  corpora- 
tion and  for  issuing  debentures  therefor. 

To  approve  acquisition  of  land  for  pur- 
poses of  establishing  a  system  for  collec- 
tion, removal  and  disposal  of  garbage. 

To  increase  or  decrease  fares  on  buses 
operated  in  a  municipality  by  any  com- 
pany having  the  exclusive  right  to  operate 
the  buses. 

To  approve  municipal  by-laws  prohibiting 
the  carrying  on  or  operation  of  a  pit  or 
quarry. 

To  approve  municipal  by-laws  imposing 
special  rates  or  charges  on  owners  of  build- 
ings that  may  impose  a  heavy  load  on  the 
sewer  system  or  water  system. 


Appendix  to  Chapter  125         2051 


The  Municipal  Act, 
R.S.O.  1960,  c.  249-Con«. 

s.  380(2),  as  re-enacted 
by  Ont.  1962-63, 
c.  87,  s.  17 


s.  382,  para.  1 1 

s.  394,  para.  3 
s.  430(3) 
s.  443(10) 

s.  447 

s.  456 
s.  446(2) 


The  Municipal 
Corporations  Quieting 
Orders  Act, 
R.S.O.  1960,  c.  251 

s.  2 


The  Municipal 
Franchises  Act, 
R.S.O.  1960,  c.  255 

s.  4 


To  approve  the  passing  or  repeal  of  mu- 
nicipal by-laws  aulhori/ing  ilie  construc- 
tion of  sewage  works  or  water  works  and 
imposing  a  sewer  rate  or  water  rate  to 
finance  it. 

To  approve  certain  municipal  by-laws  re- 
quiring persons  selling  and  delivering  coal 
and  coke  within  a  municipality  to  have 
the  load  weighed  before  delivery. 

To  determine  the  terms  pursuant  to  which 
one  municipality  can  use  the  fne-fighting 
equipment  of  another  municipality. 

To  approve  the  by-law  of  a  county  council 
abandoning  the  whole  or  any  part  of  a 
toll  road  or  any  other  road. 

To  relieve  a  municipality  from  the  obli- 
gation of  rebuilding  a  bridge  that  is  de- 
stroyed or  damaged. 

To  approve  municipal  by-laws  authorizing 
the  issuance  of  debentures  to  finance  the 
reflooring  of  certain  bridges. 

To  determine  disputes  concerning  the  de- 
viation of  county  boundary  lines. 

To  approve  the  laying  out  of  certain  high- 
ways. 


To  make  a  quieting  order  respecting  the 
legal  existence  or  status  of  a  municipality 
or  respecting  its  boundaries. 


To  approve  the  granting  of  a  franchise  by 
a  local  municipality  for  a  public  utility 
upon  any  highway  wuthin  a  5  mile  radius 
of  the  boundary  of  any  city  where  the  city 
council  objects. 


2052         The  Ontario  Municipal  Board 


The  Municipal  Tax 
Assistance  Act, 
R.S.O.  1960,  c.  258 

s.  4(2) 


The  Municipality  of 

Metropolitan  Toronto 

Act 

R.S.O.  1960,  c.  260 

s.  39(4) 
s.  39(7) 

s.  40(2) 

ss.  52,  69 

s.  62(4) 
s.  62(7) 

s.  63(3) 

s.  66(1) 

ss.  66(3)  and  70  (1)(3) 


To  hear  appeals  by  a  municipality  or  the 
Department  of  Municipal  Affairs,  or  a 
Crown  agent,  from  a  valuation  of  proper- 
ties owned  by  the  Province. 


To  approve  by-laws  assuming  "any  specific 
work  or  trunk  distribution  main". 

To  resolve  any  doubts  as  to  the  financial 
obligation  of  the  Metropolitan  Corpora- 
tion to  any  municipality  for  works  as- 
sumed by  the  Metropolitan  Corporation. 

To  confirm,  vary  or  fix  the  rates  charged 
for  the  supply  of  water,  where  the  Metro- 
politan Corporation  assumes  the  liability 
of  one  municipality  to  supply  water  to 
another  municipality. 

To  make  such  orders  as  it  deems  advisable 
where  the  Metropolitan  Corporation  re- 
fuses to  assume  a  local  work,  to  maintain 
or  increase  the  supply  of  water  to  the  area 
municipality,  etc. 

To  approve  by-laws  assuming  specific 
treatment  works. 

To  resolve  any  doubts  as  to  the  financial 
obligations  of  the  Metropolitan  Corpora- 
tion to  any  municipality  for  any  treatment 
works  assumed  by  the  Metropolitan  Cor- 
poration. 

To  terminate  and  adjust  rights  and  liabili- 
ties flowing  from  an  agreement  between 
two  municipalities  for  sewage  or  land 
drainage  where  the  Metropolitan  council 
assumes  the  works  for  carrying  it  out. 

To  approve  by-laws  charging  an  area  mu- 
nicipality with  part  of  the  capital  costs 
of  a  sewer  system  provided  by  the  Metro- 
politan Corporation. 

To  approve  by-laws  of  any  area  munici- 
pality or  the  Metropolitan  Corporation 
imposing  special  sewage  service  rates. 


I 


Appendix  to  Chapter  125         2053 

The  Municipality  of 

Metropolitan  Toronto 

Act 

R.s'.0.  1960,  c.  260-Coiif. 

s.  73a(3)(b),  as  enacted  To  approve  the  acquisition  of  land  for  the 

by  Ont.  1966,  c.  96,         purposes  of  waste  disposal, 
s.  10 

s.  73a(8),  as  enacted  by  Vo  ajijirove  by-laws  assuming  land,  build- 

Ont.  1966,  c.  96,  ings    equipment,    etc.    for    waste    disj^osal 

s.  10  purposes. 

s.  73a(l  1)  as  enacted  To  resolve  any  doubts  as  to  the  financial 

by  Ont.  1966,  c.  96,         obligation    of    the    Metropolitan  Corpora- 

s.  10  tion    to   a   municipality    for   any  property 

assumed  for  waste  disposal. 

s.  94(2)(3)  To  settle  any  disputes  between  the  Metro- 

politan Corporation  and  an  adjoining 
county  as  to  the  maintenance  and  repair 
of  bridges  and  highways  crossing  or  form- 
ing boundary  lines. 

s.  98(2)  To    approve    the   closing   of    a    municipal 

road  that  intersects  or  runs  into  a  metro- 
politan controlled-access  road. 

s.  92(1)  To   approve   the   designation   of   a   metro- 

politan road  as  a  controlled-access  road. 

ss.  Ill,  113  To  determine  all  issues  arising  out  of  the 

Toronto  Transit  Commission  becoming 
the  successor  of  the  Toronto  Transporta- 
tion Commission  and  assuming  its  assets 
and  liabilities. 

s.  116a(l),  as  enacted  To   approve   contributions   by   the   Metro- 

by  Ont.  1961-62,  politan  Corporation  to  the  capital  costs  of 

c.  88,  s.  10  the  Toronto  Transit  Commission. 

s.  117(2)  To   approve   by-laws   of  any   municipality 

assessing  deficits  against  ratable  property, 
which  deficits  were  incurred  as  a  result  of 
transportation  services  provided  by  the 
Toronto  Transit  Commission. 

s.  121(4)  To  resolve  any  doubts  concerning  the  fi- 

nancial obligations  of  the  Toronto  Transit 
Commission  to  the  Toronto  Transporta- 
tion Commission  or  to  any  municipality 
resulting  from  property  acquired  from 
them. 

s.  139(7),  as  re-enacted  To  hear  appeals  bv  an  area  board  of  edu- 

by  Ont.  1966,  cation  from  the  refusal  of  The  Metropoli- 

c.  96,  s.  12  tan  Toronto  School   Board  to  approve  its 

annual  budget. 


2054         The  Ontario  Municipal  Board 


The  Municipality  of 

Metropolitan  Toronto 

Act, 

R.S.O.  1960,  c.  260-Cont. 

ss.  145(2)(3),  145a(l), 
as  re-enacted  by 
Ont.  1966,  c.  96, 
s.  12 

s.  149d  (8),  as  enacted  by 
Ont.  1966,  c.  96, 
s.  13 


s.  151(4),  as  re-enacted 
by  Ont.  1966, 
c.  96,  s.  14 

s.  152(10),  as  re-enacted 
by  Ont.  1966, 
c.  96,  s.  15 


s.  225(1) 

ss.  225(4),  226(6) 

s.  233(2) 

s.  239(1) 
s.  240 

s.  267(1) 
s.  267(2) 


To  approve  or  require  the  issuance  and 
sale  of  debentures  to  raise  money  for  per- 
manent improvements  to  school  property. 

To  resolve  any  doubts  as  to  the  obligations 
incurred  by  the  Metropolitan  Corporation 
in  the  assumption  of  the  assets  and  lia- 
bilities of  the  libraries  owned  by  the  area 
municipalities. 

To  approve  the  composition  of  the  coun- 
cils of  the  area  municipalities. 

To  resolve  any  doubts  as  to  the  obligations 
incurred  by  the  Metropolitan  Corporation 
in  the  assumption  of  the  assets  and  liabili- 
ties of  the  public  welfare  services  owned 
by  the  area  municipalities. 

To  approve  the  assumption  by  the  Metro- 
politan Corporation  of  any  existing  public 
park,  zoological  garden,  recreation  area, 
etc. 

To  resolve  any  doubts  as  to  the  obligations 
incurred  by  the  Metropolitan  Corporation 
in  the  assumption  of  the  assets  and  liabili- 
ties of  any  park  and  recreation  properties 
(including  the  Toronto  Islands). 

To  approve  the  temporary  borrowing  of 
more  than  70%  of  the  total  estimated  an- 
nual revenue  of  the  Metropolitan  Corpo- 
ration. 

To  authorize  the  varying  of  the  rate  of 
interest  payable  on  debentures,  etc. 

To  approve  the  repeal  of  a  by-law  when 
part  only  of  the  sum  of  money  provided 
for  by  the  by-law  has  been  raised. 

To  inquire  into  and  adjust  assets  and  lia- 
bilities between  municipalities. 

To  direct  the  Metropolitan  Corporation 
to  pay  to  the  County  of  York  such  amount 
as  it  deems  just  and  equitable  to  relieve 
the  County  from  the  burden  caused  by  the 
separation  from  the  County  of  the  munici- 
palities set  out  in  s.  149. 


Appendix  to  Chapter  125         2055 


The  Municipality  of 

Metropolitan  Toronto 

Act, 

R.S.O.  1960,  c.  260-Con«. 

s.  268 


The  Niagara 
Development  Act,  1951 
Ont.  1951,  c.  55 

S.5 


To  recommend  to  the  Lieutenant  Gover- 
nor in  Council  that  he  authorize  the 
Metropolitan  Corporation  to  do  all  such 
acts  or  things  not  specifically  provided  for 
in  the  Act  deemed  necessary  or  advisable 
to  carry  it  out. 

To  fix  compensation  for  property  other 
than  land  taken  under  the  Act. 


The  Ontario 
Municipal  Board  Act, 
R.S.O.  1960,  c.  274 

s.  38 


s.  40(1) 


s.  43 


s.  44 


s.45 


s.  46(1) 


To  inquire  into,  hear  and  determine  such 
matters  as  are  reserved  to  it  by  the  letters 
patent  of  any  corporation. 

To  inquire  into,  hear  and  determine  any 
matter  or  thing  that  it  may  inquire  into, 
hear  and  determine  upon  application 
either  upon  its  own  initiative  or  at  the 
request  of  the  Lieutenant  Governor  in 
Council. 

To  inquire  into  and  report  on  any  mat- 
ters incident  to  any  proposed  change  in 
the  general  law,  or  to  any  proposed  Bill 
relating  to  a  municipality,  a  railway  or 
any  corporation  or  person  operating  or 
proposing  to  operate  a  public  utility. 

To  report  or  act  upon  any  question,  mat- 
ter or  thing  relating  to  a  municipality, 
railway  or  public  utility  subject  to  its 
jurisdiction. 

To  inquire  into  and  report  on  the  estab- 
lishment, organization,  re-organization  and 
methods  of  operation  of  any  two  or  more 
municipalities. 

To  appoint  any  person  to  make  an  inquiry 
and  report  upon  any  application,  com- 
plaint or  dispute  before  it,  or  upon  any 
matter  or  thing  over  which  it  has  juris- 
diction. 


2056         The  Ontario  Municipal  Board 


The  Ontario 
Municipal  Board  Act, 
R.S.O.  1960,  c.  274-Conf. 

s.  63(1) 


s.  64(1) 


s.  70 


s.  72(1) 


s.  74 


The  Ontario  Water 

Resources  Commission 

Act, 

R.S.O.  1960,  c.  281 

s.  32(5)  as  re-enacted  by 
Ont.  1966,  c.  108, 
S.5 


s.  32(8),  as  re-enacted  by 
Ont.  1966,  c.  108, 
s.5 


s.  33 


s.  41(1) 


To  order  the  dispensing  with  the  assent  of 
the  electors  to  the  exercise  by  a  munici- 
pality of  any  of  its  powers. 

To  approve  the  proceeding  by  a  munici- 
pality with  any  undertaking  the  cost  of 
which  is  to  be  raised  in  a  subsequent  year 
or  provided  by  the  issue  of  debentures. 

To  inquire  into,  hear  and  determine  appli- 
cations made,  proceedings  instituted  and 
matters  brought  before  it  relating  to  rail- 
ways or  public  utilities. 

To  exercise  certain  powers,  authority  or 
duties  and  give  approvals  concerning  rail- 
ways conferred  upon  the  Railway  Com- 
mittee of  the  Executive  Council  of  Ontario 
and  the  Lieutenant  Governor  in  Council 
or  any  of  his  Ministers. 

To  superintend  the  system  of  bookkeeping 
and  keeping  accounts  of  all  railways  and 
public  utilities  operated  by  or  under  the 
control  of  a  municipality  or  local  board 
and,  if  necessary,  to  inquire  and  report  as 
to  whether  they  are  being  operated  eco- 
nomically or  whether  they  are  charging 
excessive  rates. 


To  make  an  order  stopping  up  and  closing 
any  highway  and  removing  building  re- 
strictions where  the  Commission  has 
authorized  a  municipality  to  extend  an 
existing  sewage  works. 

To  settle  differences  between  the  parties 
where  a  sewage  work  is  extended  from  one 
municipality  into  another. 

To  inquire  into,  hear  and  determine  com- 
plaints respecting  the  constructing,  main- 
taining or  operating  of  sewage  works  by  a 
municipality. 

To  approve  by-laws  imposing  sewer  and 
water  works  rates  on  owners  of  land  bene- 
fitting from  an  agreement  with  the  Com- 
mission. 


I 


Appendix  to  Chapter  125         2057 


The  Ontario  Water 

Resources  Commission 

Act, 

R.S.O.  1960,  c.  281-Conf. 

s.  46a(10),  as  enacted  by 
Ont.  1966,  c.  108, 
s.  10 


s.  46a(12),  as  enacted  by 
Ont.  1966,  c.  108, 
s.  10 

s.  46a(14),  as  enacted  by 
Ont.  1966,  c.  108, 
s.  10 

The  Ottawa  River 
Water  Powers  Act, 
Ont.  1943,  c.  21 

s.  13 


The  Planning  Act, 
R.S.O.  1960,  c.  296 

s.  7(5) 


s.  12a,  as  enacted  by 
Ont.  1965,  c.  98,  s.  1 

s.  14(3)(4)(5) 
s.  15(3) 

s.  20(5)(7)(10) 


s.  30(9)(10)and(23)as 
enacted  by  Ont. 
1967,  c.  75,  s.  4(3) 


To  determine  compensation  where  in  the 
implementation  of  an  order  making  cer- 
tain areas  areas  of  public  water  or  public 
sewage  service  the  Commission  orders  that 
an  existing  contract  with  respect  to  water 
or  sewage  service  be  amended  or  ter- 
minated. 

To  approve  by-laws  defining  areas  bene- 
fitted by  an  order  of  the  Commission  and 
imposing  water  or  sewage  rates  in  the  area. 

To  hear  petitions  referred  by  the  Lieuten- 
ant Governor  in  Council  seeking  to  vary 
a  water  or  sewage  rate  or  charge. 


To  determine  the  loss  of  revenue  by  any 
municipality  from  taxation  upon  lands  ac- 
quired by  the  Province  for  the  develop- 
ment of  water  power  at  certain  cities 
named  in  the  Act. 


To  apportion  the  annual  estimates  of  a 
planning  board  chargeable  to  each  mu- 
nicipality in  the  case  of  a  joint  planning 
area. 

To  approve  the  official  plan  of  a  planning 
area. 

To  reject  a  proposed  amendment  or  direct 
that  it  be  made  to  an  official  plan. 

To  declare  that  a  by-law  of  a  municipality 
shall  be  deemed  to  conform  with  the  offi- 
cial plan. 

To  approve  any  redevelopment  plan  of  a 
municipality,  any  amendments  thereto, 
and  any  debentures  issued  to  implement 
the  plan. 

To  approve  land  use  control  by-laws  and 
amendments  thereto  passed  by  a  munici- 
pality. 


2058         The  Ontario  Municipal  Board 


The  Planning  Act, 
R.S.O.  1960,  c.  296-Conf. 

s.  30(18) 
s.  30(19) 


s.  30a(4)(5),  as  enacted 
by  Ont.  1964,  c.  90, 

s.  4 

s.  30a(6),  as  enacted  by 
Ont.  1964,  c.  90, 
s.  4 

s.  32b(12),  as  enacted  by 
Ont.  1961-62, 
c.  104,  s.  8 

s.  34(1),  as  re-enacted  by 
Ont.  1967,  c.  75, 
s.  9(1) 

The  Power 
Commission  Act, 
R.S.O.  I960,  c.  300 

s.  48(11) 


To  approve  the  amendment  of  by-laws  ex- 
tending non-conforming  uses. 

To  hear  an  appeal  from  the  refusal  or 
failure  of  a  municipal  council  to  amend 
a  land  use  control  by-law. 

To  approve  a  by-law  or  the  amendment  or 
repeal  thereof  relating  to  housing  con- 
ditions. 

To  hear  an  appeal  from  the  refusal  or 
failure  of  a  municipal  council  to  amend  a 
housing  standards  by-law. 

To  hear  an  appeal  from  the  decision  of  a 
committee  of  adjustment. 

To  give  approvals  or  consents  which  have 
been  applied  for  from  the  Minister  and 
referred  by  him  to  the  Board. 


To  hear  an  appeal  by  a  municipality  or 
the  Hydro-Electric  Power  Commission 
from  a  valuation  of  properties  owned  by 
the  Commission. 


The  Public  Libraries 

Act 

Ont.  1966,  c.  128 

ss.  24(1),  43(1),  52(2) 


The  Public  Schools 

Act 

R.s!o.  1960,  c.  330 


s.  58(13) 


s.  63(1),  as  amended  by 
Ont.  1966,  c.  129, 
s.  39(1) 


To  approve  the  raising  of  money  by  mu- 
nicipal debentures  for  the  purposes  of 
acquiring  library  sites,  buildings,  books 
and  equipment. 


To  hear  an  appeal  from  the  decision  of  a 
district  court  judge  affirming  or  varying 
the  assessment  of  lands  in  a  school  section 
in  territory  without  municipal  organi- 
zation. 

To  approve  the  issue  of  debentures  by  an 
urban,  county,  district  or  township  school 
area  board. 


Appendix  to  Chapter  125         2059 


The  Public  Service 

Works  on  Highways 

Act, 

R.S.O.  1960,  c.  333 

s.  2(5),  as  enacted  by 
Ont.  1965,  c.  112, 
S.2 


s.  3 


The  Public  Utilities 

Act 

R.S.O.  1960,  c.  335 


s.  37(3) 

s.  37(5) 
s.  56(1) 


The  Public  Works  Act, 
R.S.O.  1960,  c.  338 

s.  39(2) 


The  Railways  Act, 
R.S.O.  1950,  c.  331 

(This  Act  is  unrepealed 
and  unconsolidated.  It 
applies  to  all  railways 
"other  than  Govern- 
ment railways",  and  in 
certain  respects  to  street 
railways  and  incline 
railways,  (ss.  2,  6.) .) 


10(1) 


To  determine  the  amount  of  loss  or  ex- 
pense incurred  by  a  road  authority  in  con- 
structing, etc.  a  highway  by  reason  ot  the 
failure  of  an  owner  of  a  utility  to  relocate 
its  equipment. 

To  apportion  between  a  road  authority 
and  the  owner  of  a  utility  the  cost  of  re- 
locating equipment. 


To  approve  the  application  of  moneys  for 
purposes  of  a  capital  nature,  where  a  pub- 
lic utility  sells,  leases  or  otherwise  disposes 
of  a  public  utility  undertaking. 

To  approve  the  sale,  lease  or  other  dispo- 
sition of  a  portion  only  of  the  property  of 
a  public  utility  undertaking. 

To  authorize  the  laying  of  main  pipes  or 
conduits  for  carrying  or  conveying  any 
public  utility  within  six  feet  of  existing 
ones. 


To  determine  any  claim  referred  to  it  by 
the  Minister  arising  out  of  a  contract  with 
the  Government  for  the  execution  of  a 
public  work. 


To  approve  the  following  matters: 

(1)  An  increase  in  the  capital  stock 
railway  company. 


of 


2060         The  Ontario  Municipal  Board 

The  Railways  Act, 
R.S.O.  1950,  c.  331-Conf. 

s.  40(4)  (2)  The  issuance  of  preference  shares  of  a 

railway  company. 

s.  46(1)  (3)  The  fixing  of  the  rate  of  interest  pay- 

able on  bonds,  debentures  and  other  secu- 
rities issued  by  a  railway  company. 

s.  53(n)  (4)  The  diversion  or  alteration  of  a  rail- 

way company  of  water  or  gas  pipes,  sewers, 
drains,  or  utility  lines. 

s.  53(o)  (5)   The   alteration,   repair   or   discontinu- 

ance by  a  railway  company  of  any  of  the 
works  it  is  permitted  to  undertake  pur- 
suant to  s.  53(a)-(N). 

s.  55  (6)  The  sufficiency  of  the  railway  track  and 

flooring  on  bridges  passing  over  navigable 
waters. 

s.  59(1)  (7)   A  railway   company   taking   possession 

of,  using  or  occupying  any  land,  right  of 
way,  tracks,  terminals  or  stations  of  an- 
other railway  company. 

s.  61(1)  (8)    The    construction   by   a   railway   com- 

pany of  telegraph  and/or  telephone  lines 
through  a  city,  town  or  village. 

s.  61(3)  (9)  The  connection  of  a  telegraph  or  tele- 

phone line  owned  by  a  third  party  with  a 
telegraph  or  telephone  line  owned  by  a 
railway  company. 

ss.  62(1),  63  (10)   The   erection   and   placing   of   utility 

wires  across  a  railway. 

s.  64(2)  (11)  The  use  by  the  trains  of  one  company 

of  the  tracks  of  another  company  and  sev- 
eral matters  incidental  thereto. 

s.  65(2)  (12)  Any  agreement  for  the  sale,  leasing  or 

amalgamation  of  a  railway  company. 

ss.  68,  69,  70  (13)  The  location,  route  and  specifications 

of  a  proposed  main  rail  line  and  of  any 
branch  lines  over  6  miles  in  length. 

s.  73(1)  (14)  The  correction  of  any  errors,  mis-state- 

ments or  omissions  in  the  plans  and  speci- 
fications of  a  rail  line. 

s.  78(1)  (15)    The    deviation   or    alteration    of    the 

route  of  any  railway,  or  any  portion 
thereof. 


Appendix  to  Chapter  125         2061 


The  Railways  Act, 
R.S.O.  1950,  c.  331-Conf. 


s.  86(1)  (16)  The  expropriation  by  a  railway  com- 

pany of  more  land  than  it  is  authorized  to 
expropriate  by  s.  80. 

s.  92(3)  (17)    The    construction    of    branch    lines, 

switches  and  sidings  to  industries. 

s.  97  (18)    The    use    by    a    railway    company    of 

tracks  smaller  or  greater  than  standard 
gauge. 

s.  110(4)  (19)  The  construction  of  drainage  works 

upon,  along,  under  or  across  a  railway  line 
or  railway  land. 

s-  111(1)  (20)  The  construction  of  canals,  tunnels  or 

ditches  across,  over  or  under  railways. 

s-  117(1)  (21)   The  construction   of  certain   bridges, 

tunnels  or  viaducts. 

s-  118(1)  (22)  The  construction  of  a  railway  upon, 

along  or  across  a  highway. 

s-  129(1)  (23)  The  joining  or  crossing  of  the  railway 

tracks  of  one  company  with  those  of 
another. 

s-  l32  (24)  The  location  of  a  railway  line  which 

obstructs  or  interferes  with  the  working  of 
or  access  to  a  mine. 

s.  134(1)  (25)  The  working  of  a  mine  lying  under 

or  within  40  yards  of  a  railway  line. 

s.  160(1)  (26)  The  fares  to  be  charged  for  accommo- 

dation and  sleeping  and  parlor  cars. 

s-  '^6  (27)  All  by-laws  passed  by  a  railway  com- 

pany, except  those  of  a  private  and  domestic 
nature  not  affecting  the  public  generally 
or  imposing  penalties. 

s.  174(1)  (28)  The  opening  of  any  railway  or  portion 

thereof  for  the  carriage  of  traffic. 

s-  177  (29)  The  tariffs  and  tolls  to  be  charged  by 

a  railway. 

s.  178  (30)  Express  tolls. 

ss.  183(1),  214(1)  (31)  Any  contract,  condition,  by-law,  regu- 

lation, declaration  or  notice  limiting  lia- 
bility. 


2062         The  Ontario  Municipal  Board 


The  Railways  Act, 
R.S.O.  1950,  c.  331-Conf. 

s.  187(8) 


s.  194(1) 
s.  198(1) 
s.  230 

s.  232(1)(3) 

s.  250(1) 

s.  243(2) 

s.  253(1)(5) 
ss.  256,  257 

s.  260(f) 

s.  265 
s.  266(1) 


(32)  The  pooling  by  one  railway  company 
of  its  freights  or  tolls  with  those  of  another 
railway  company  or  common  carrier. 

(33)  Standard  freight  tariffs. 

(34)  Standard  passenger  tariffs. 

(35)  The  carriage  by  street  railways  of 
freight  traffic. 

(36)  The  operation  by  a  municipal  corpo- 
ration of  a  street  railway. 

(37)  The  construction  by  a  street  railway 
company  of  a  railway  upon  a  highway  or 
any  part  thereof. 

(38)  The  deviation  by  a  street  railway  com- 
pany of  its  line  from  a  highway  to  a 
right-of-way  owned  by  the  company. 

(39)  Equipment  to  be  used  on  electric 
street  railway  cars. 

(40)  The  operation  of  a  street  railway  car 
on  a  "pay  as  you  enter  system"  where  the 
duties  of  motorman  and  conductor  are  per- 
formed by  a  single  person. 

(41)  The  travelling  of  street  railway  cars 
on  a  highway  at  more  than  15  miles  per 
hour. 

(42)  The  examination  of  motormen  for 
street  railway  cars. 

(43)  The  testing  of  employees  for  colour 
blindness. 


s.  75(1) 

ss.  76,  275(2) 
s.  77 


To  have  general  supervisory  jurisdiction 
and  power  with  regard  to  the  following 
matters: 

(1)  To  extend  the  time  prescribed  for  the 
filing  of  a  plan  and  profile  of  a  completed 
railway  with  the  Board. 

(2)  To  prepare  directions  as  to  the  prepa- 
ration of  railway  plans  and  specifications. 

(3)  To  require  the  filing,  from  time  to 
time,  of  such  further  railway  plans  and 
profiles  as  it  may  deem  necessary. 


Appendix  to  Chapter  125         2063 

The  Railways  Act, 
R.S.O.  1950,  c.  331-Cont. 

s.  78(4)  (4)  To  grant  exemption  from  the  filing  of 

certain  documents  otherwise  ie(jiiirecl 
where  a  railway  apphes  for  permission  to 
deviate,  alter  or  change  a  route. 

s.  93(6)  (5)    The    operation    and    maintenance    of 

branch  lines  built  on  the  application  of 
an  industry  or  business. 

ss.  98(5)-(9)(ll),  100,  (6)    The    nature   and   type   of   equipment 

101(1),  102  used  by  a  railway  company. 

s-  103  (7)  Generally,  to  make  orders  and  regula- 

tions regarding,  inter  alia,  equipment, 
service,  speed  of  trains,  use  of  steam 
whistles,  fire  protection,  railway  patrols. 

s.  104  (8)  To  order  a  railway  to  improve,   iyiter 

alia,  its  regulations,  practices,  equipment, 
appliances,  tracks,  terminals,  adequacy  of 
its  services,  schedules. 

s-  105  (9)  The  fixing  of  stopping  places  for  elec- 

tric railways. 

s.  109(2)  (10)  To  order  a  railway  to  prevent  drain- 

age from  its  lands  onto  those  of  others. 

s-  113  (11)  To  order  a  railway  to  construct  suit- 

able crossings  across  its  tracks. 

ss.  114(5),  115  (12)  To  relieve  a  railway  from  its  statutory 

obligation  to  fence  railway  tracks,  provide 
swing  gates  at  farm  crossings,  and  to  pro- 
vide cattle-guards. 

s.  116  (13)   To  order   the   construction  or  recon- 

struction of  bridges  and  tunnels  to  comply 
with  s.  116,  or  to  relieve  a  railway  from 
compliance  with  this  section. 

s.  120(4)(5)  (14)  The  construction  of  a  railway  upon, 

along  or  across  an  existing  highway. 

s-  121  (15)  To  order  a  railway  to  construct  foot 

bridges  over  its  tracks. 

s-  123  (16)   To   order   that   a   railway   be   carried 

across  or  along  a  highway,  or  that  it  be 
diverted,  and  to  apportion  the  cost  thus 
incurred  between  the  railway  and  a  cor- 
poration or  person. 


2064         The  Onlario  Municipal  Board 


The  Railways  Act, 
R.S.O.  1950,  c.  331-Conf. 

s.  128(1) 

ss.  130(1),  131 

s.  140 

s.  146(3)(5)(6)(8) 

ss.  154(4),  156(3) 

s.  157(4)(5) 
s.  161(I)(3)(5) 

s.  173 

s.  175(2)(3) 

s.  182 
s.  188(1) 
s.  190 
ss.  215,  216 

ss.  254,  255 


(17)  To  order  the  repair  of  any  level  cross- 
ing. 

(18)  To  order  the  connection  of  intersect- 
ing railway  lines  of  different  companies. 

(19)  To  order  that  fire  guards  be  estab- 
lished and  maintained  along  the  route  of  a 
railway. 

(20)  To  order  a  railway  to  provide  suitable 
accommodation  for  its  traffic  and  suitable 
arrangements  to  permit  connections  be- 
tween railways  for  passengers  and  mails. 

(21)  To  relieve  trains  of  the  statutory  obli- 
gation of  having  to  be  brought  to  a  full 
stop  before  crossing  certain  bridges  and 
highways. 

(22)  To  prescribe  the  speed  at  which  trains 
may  travel  under  certain  circumstances. 

(23)  To  order  a  railway  company  to  con- 
struct a  railway  station,  to  improve  on 
existing  stations  and  to  prescribe  the  loca- 
tion of  any  new  station. 

(24)  To  appoint  inspecting  engineers  to  in- 
spect all  of  the  mechanical  aspects  of  the 
operation  of  a  railway  and  to  report  to  the 
Board. 

(25)  To  order  the  repair  of  a  railway  and 
to  prohibit  the  use  of  any  rolling  stock 
considered  unsafe. 


(26)    To    prescribe    what    is    "carriage 
transportation  of  goods  by  express". 


or 


(27)  To  prescribe  and  classify  a  tariff  of 
tolls  for  freight  traffic. 

(28)  To  order  the  disallowance  or  amend- 
ment of  any  tariff. 

(29)  To  prescribe  the  terms  and  conditions 
under  which  any  traffic  may  be  carried  by 
a  railway  company. 

(30)  To  order  street  railway  companies  to 
provide  washroom  facilities  for  employees 
and  members  of  the  public. 


Appendix  to  Chapter  12=i  2065 


The  Railways  Act, 
R.S.O.  1950,  c.  S3l-Cotit. 


s.  260(1)  (31)  To  determine,  by  way  of  an  appeal  to 

it,  whether  street  railway  works  constructed 
by  a  railway  company  pursuant  to  an  agree- 
ment with  a  municipality,  have  been 
constructed  to  the  satisfaction  of  the  muni- 
cipality's engineer. 

s.  271(1)  (32)  To  order  that  all  railways  assisted  by 

a  Government  subsidy  be  in  a  safe  and 
efficient  condition  and  that  all  necessary 
repairs  and  improvements  be  made. 

s.  273(1)  (33)  To  regulate  the  hours  of  labour  of 

street  railway  employees. 

s.  278(1  )(2)  (34)  To  require  railway  companies  to  pro- 

vide information  concerning,  inter  alia, 
assets  and  liabilities,  issued  shares,  earn- 
ings and  expenditures,  leases  and  con- 
tracts. 

s.  281(4)  (35)  To  hold  an  inquiry  into  the  cause  of 

accidents  on  the  railways. 

s.  302  (36)  With  the  approval  of  the  Lieutenant- 

Governor  in  Council,  to  enter  upon  the 
right-of-way  of  any  railway  for  the  pur- 
poses of  construction  facilities  to  transmit 
electrical  or  other  power  to  municipalities. 

To    settle    and    determine    disputes    in    the 
following  circumstances: 

s.  64(6)  (1)  Where  there  is  disagreement  as  to  the 

interchange  of  traffic  pursuant  to  section 
64. 

s.  64(7)  (2)  Where  complaints  have  arisen  with  re- 

gard to  the  interchange  of  traffic. 

s.  9o(l)(2)(3)(8)  (3)   Where   a  railway   company   refuses   to 

construct  a  branch  line  to  any  industry  or 
business  located  within  6  miles  of  a  rail 
line. 

s.  106(4)  (4)  Where  there  is  a  dispute  concerning  the 

construction  of  open  or  summer  cars  as  re- 
quired by  section  106. 


2066         The  Ontario  Municipal  Board 


The  Railways  Act, 
R.S.O.  1950,  c.  331-Cont. 

s.  135 


s.  201(3)(4) 
s.  212(1) 

s.  242(3) 

ss.  247(1),  252 
s.  261 


s.  263(3) 


s.  246(2) 


The  St.  Lawrence 

Development  Act,  1952 

(No.  2) 

Ont.  1952  (2nd  session) 

c.  3 

s.  15 


(5)  Where  there  is  a  dispute  as  to  the 
amount  of  compensation  to  be  paid  to  the 
owner  or  occupier  o£  a  mine  where  mine 
property  has  been  severed  by  a  railway  or 
where  a  railway  has  interrupted  or  pre- 
vented the  working  of  a  mine. 

(6)  Where  there  is  a  dispute  as  to  the  ap- 
portionment of  joint  tariffs. 

(7)  To  determine  whether  there  has  been 
unjust  discrimination,  undue  or  unreason- 
able preference  or  advantage,  or  prejudice 
or  disadvantage  within  the  meaning  of  the 
Act. 

(8)  To  amend  or  quash  a  municipal  by-law 
authorizing  the  construction  of  a  street 
railway  upon  a  public  highway  in  a  mu- 
nicipality. 

(9)  Where  there  is  disagreement  with  the 
terms  upon  which  a  street  railway  is  to  be 
operated  in  a  municipality. 

(10)  Where  a  railway  or  street  railway  is 
operated  upon  a  highway  under  an  agree- 
ment with  a  municipal  corporation,  and  it 
is  alleged  that  the  agreement  has  been  vio- 
lated, to  hold  a  hearing  and  make  such 
order  as  it  deems  necessary,  including  en- 
abling the  Board  to  assume  control  of  the 
railway  line  and  hire  employees  to  run  the 
line. 

(11)  To  determine  all  matters  where  a 
street  railway  company  and  a  municipality 
cannot  agree  to  the  entry  of  a  second  street 
railway  company  into  the  municipality. 

To    fix    compensation    with    regard    to    the 
following  matters: 

(1)  Where  a  municipal  corporation  as- 
sumes the  ownership  of  a  street  railway 
after  the  expiration  of  its  franchise. 

To  determine  compensation  for  property 
other  than  land  injuriously  affected  by  the 
exercise  of  powers  under  the  Act. 


Appendix  to  Chapter  125         2067 


The  Secondary  Schools 
and  Boards  of 
Education  Act, 
R.S.O.  1960,  c.  362 

s.  35(10) 


s.  84(6),  as  enacted  by 
Ont.  1968,  c.  122, 
s.  8 


To  hear  appeals  from  the  decision  on 
arbitration  determining  the  liabilities  of 
municipalities  comprising  a  high  school 
district. 

To  hear  appeals  from  decisions  of  arbi- 
trators determining  the  value  of  the  assets 
and  liabilities  of  public  school  boards, 
high  school  boards,  etc.  which  become  or- 
ganized as  divisional  boards. 


The  Tile  Drainage 

Act, 

R.S.O.  1960,  c.  399 

s.  la(l),  as  re-enacted  by 
Ont.  1968-69,  c.  129, 
s.  1 


To  approve  municipal  by-laws  for  the  bor- 
rowing of  moneys  for  the  purposes  of 
drainage  works. 


The  Trustee  Act, 
R.S.O.  1960,  c.  408 

s.  19 


To  approve  the  dedication  or  sale  by  a 
trustee  of  land,  or  his  interest  therein,  for 
municipal  highway  purposes. 


CHAPTER  126 

The  Ontario  Securities 
Commission 

INTRODUCTION 

1  HE  Ontario  Securities  Commission  is  charged  with 
the  supendsion  and  regulation  of  trading  in  securities  in 
Ontario.  It  derives  its  powers  and  existence  from  the  Securities 
Act,  1966.  ^  Under  the  provisions  of  the  prior  Securities  Act,- 
the  Commission  w^as  a  branch  of  the  Department  of  the 
Attorney  General.^  Although  now  the  Minister  of  Financial 
and  Commercial  Affairs  is  responsible  for  the  administration 
of  the  new  Securities  Act^  and  although  the  Commission  is 
required  to  report  to  the  Minister  on  certain  aspects  of  its 
work,  to  a  very  large  extent  it  is  an  independent  body  invested 
with  wide  powers  of  investigation  and  decision.  The  power  to 
make  regulations  under  the  Act,  however,  rests  in  the  Lieu- 
tenant Governor  in  Council.^ 


'Ont.  1966,  c.  142  as  amended  by  Ont.  1966,  c.  41;  Ont.  1967,  c.  92  and  Ont. 
1968,  c.  123. 

'R.S.O.  1960,  c.  363  as  amended  by  Ont.  1962-63,  c.  131;  Ont.  1964,  c.  107; 
Ont.  1965,  c.  120,  and  repealed  by  Ont.  1966,  c.  142,  s.  147. 

^This  was  the  traditional  situation  which  was  formalized  by  express  enact- 
ment in  Ont.  1962-63,  c.  131,  s.  3. 

*The  Department  of  Financial  and  Commercial  Affairs  Act,  Ont.  1966,  c. 
41,  s.  4. 

"Ont.  1966,  c.  142,  s.  107;  s.  144  as  amended  bv  Ont.  1967,  c.  92,  s.  3;  s.  115; 
and  s.  61(3)  as  enacted  by  Ont.  1967,  c.  92,  s.  1(2). 

2068 


Chapter  126         2069 

COMPOSITION  OF  THE  COMMISSION 

The  Commission  is  composed  of  a  lull-time  Chairman, 
who  is  the  chief  executive  officer,  and  not  more  than  five  part- 
time  members  who  shall  devote  such  time  as  may  be  necessary 
for  the  due  performance  of  their  duties.^  Members  of  the 
Commission  are  appointed  by  the  Lieutenant  Governor  in 
Council'  but  the  Act  is  silent  on  the  length  of  their  tenure 
of  appointment  and  also  on  the  grounds  on  which  and  the 
method  by  Avhich  they  may  be  removed. 

The  powers  of  decision  exercised  by  the  Commission  are 
largely  judicial  in  nature  and  should  therefore,  according  to 
the  recommendations  contained  in  Report  Number  1*  be 
conferred  on  impartial  persons  who  are  independent  of 
political  control.  Freedom  from  political  control  does  not 
comprise  only  an  absence  of  the  control  or  direction  of  a 
Minister  or  other  politically  responsible  person;  it  also  com- 
prises those  conditions  which  permit  independence  and 
impartiality  and  we  therefore  recommend  that  members  of 
the  Commission  be  appointed  for  fixed  terms  and  that  they 
be  removable  only  for  cause. ^ 

The  Act  is  silent  on  the  requisite  qualifications  of  mem- 
bers of  the  Commission.  Clearly  the  work  of  the  Commission 
requires  a  close  familiarity  with  the  business  of  trading  in 
securities  and  with  the  operation  of  the  business  world 
generally.  This  is  sufficiently  self-evident  to  make  it  unneces- 
sary to  spell  out  in  the  Act  the  requirement  that  members  of 
the  Commission  possess  such  expertise.  On  the  other  hand, 
the  Commission's  powers  of  decision  are  so  numerous  and  so 
significant,  both  to  the  investing  public  and  to  those  engaged 
in  trading  in  securities,  as  to  make  it  essential  that  at  least  one 
member  of  the  Commission,  preferably  the  Chairman,  have 
legal  training.  In  Report  Number  1  we  made  recommenda- 
tions applicable  to  judicial  tribunals^*^  which  are  applicable 
to  the  Securities  Commission. 


"Ibid.,  s.  2  as  amended  by  Ont.  1968.  c.  123,  s.  2;  s.  f,. 
'Ibid.,  s.  2(2). 
^pp.  120-1  supra. 
•p.  123  supra. 
°pp.  122-3  supra. 


2070  The  Ontario  Securities  Commission 

The  Director  of  the  Commission,  who  is  the  Chief 
Administrative  Officer  and  empowered  to  exercise  many 
powers  of  decision,  should  be  required  to  have  legal  training. 

Two  members  of  the  Commission  constitute  a  quorum. ^^ 
This  provision  remained  unchanged  when  in  1968^-  the 
membership  of  the  Commission  was  increased  from  five  to 
six.  It  is  appreciated,  that  wdth  the  exception  of  the  Chairman, 
some  members  of  the  Commission  devote  only  part  of  their 
time  to  its  work,  but  nevertheless,  it  is  not  satisfactory  that 
the  ver)'  important  powers  of  the  Commission,  which  include 
the  hearing  and  deciding  of  appeals  from  decisions  of  the 
Director,  may  be  exercised  by  one-third  of  its  members.  Two 
members  of  the  Commission  should  not  have  the  power  to 
assign  most  of  the  powers  of  the  Commission  to  one  of  its 
members  (see  section  3(2)). 

We  recommend  that  a  quorum  of  the  Commission  be 
three,  including  the  Chairman  or  a  member  with  legal  train- 
ing. 

PROCEDURAL  PROVISIONS  OF  GENERAL 
APPLICATION 

Since  certain  procedural  provisions  of  the  Act  are 
generally  applicable  to  the  exercise  of  the  different  powers  of 
the  Commission,  it  is  convenient  to  deal  with  procedure  first 
and  then  examine  the  powers  and  their  exercise. 

Procedurally,  the  Securities  Act,  1966  is  a  great  improve- 
ment over  its  predecessor  w^hich  contained  virtually  no  pro- 
cedural safeguards.  Express  provision  is  now  made  for  hearings 
in  a  number  of  situations  and  general  provisions  applicable  to 
all  such  hearings  are  contained  in  the  Act.  Our  recommenda- 
tions relate  mainly  to  the  need  for  additional  safeguards 
where  in  our  view  need  exists. 

Hearings 

Certain  rules  which  apply  to  any  hearing  required  or 
permitted  by  the  Act  are  set  out  in  section  5.  They  require 
some  comment. 


"Ont.  1966,  c.  142,  s.  2(3). 

'='/6id.,  s.  2(1)  as  amended  by  Ont.  1968,  c.  123.  s.  2. 


Chapter  126         2071 

Written  Notice  of  Hearing 

Written  notice  must  be  given  not  only  to  any  pcrs(jn  or 
company  which,  by  the  provisions  of  any  particular  section, 
is  entitled  to  receive  notice  but  also,  generally,  "to  any  person 
or  company  that,  in  the  opinion  of  the  Commission  or  the 
Director,  is  primarily  affected  by  stich  hearing."  The  notice 
must  set  out  the  time,  place  and  purpose  of  the  hearing.  It  is 
sufficient  if  it  is  sent  by  prepaid  mail  to  the  last  address  of  the 
person  or  company  as  it  appears  on  the  Commission's  records 
or,  if  it  does  not  appear  on  the  records,  "to  such  address  as  is 
directed  by  the  Commission  or  the  Director." 

No  provision  is  made  stipulating  the  period  of  time 
which  must  elapse  between  the  sending  of  the  notice  and  the 
hearing.  We  have  suggested  in  Report  Number  P^  that  an 
appropriate  and  reasonable  period  in  hearings  before  disci- 
plinary bodies  is  ten  days  and  we  recommend  that  the  same 
period  should  apply  here  except  that  a  member  of  the  Com- 
mission should  have  power  to  abridge  the  time  where  on 
reasonable  grounds  he  deems  it  proper  to  do  so.  In  any  case, 
where  a  person  or  company  involved  wishes  an  earlier  hearing 
there  should  be  express  provision  for  the  waiver  of  the  ten 
day  notice  period  by  such  person  or  company. 

There  is  no  requirement  in  section  5  of  the  Act  that  the 
notice  of  hearing  set  out  that  persons  appearing  at  the  hearing 
have  a  right  to  be  heard.  There  should  be  such  a  right  and 
this  should  be  set  out  in  the  notice. 

Powers  of  the  Presiding  Officer 

"2.  For  the  purposes  of  the  hearing,  any  of  the  persons  con- 
vening the  hearing  or  before  ^vhom  the  hearing  is  held 
has  the  same  po^ver  to  summons  and  enforce  the  attend- 
ance of  witnesses  and  compel  them  to  give  evidence  on 
oath  or  otherwise,  and  to  produce  documents,  records 
and  things,  as  is  vested  in  the  Supreme  Court  for  the 
trial  of  civil  actions,  and  the  failure  or  refusal  of  a  per- 
son to  attend  to  answer  questions  or  to  produce  such 
documents,  records  and  things  as  are  in  his  custody  or 
possession  makes  the  person  liable  to  be  committed  for 
contempt  by  a  judge  of  the  Supreme  Court  as  if  in 
breach  of  an  order  or  judgment  of  the  Supreme  Court. "^"^ 


"p.  II 93  supra. 

"Ont.  1966,  c.  142,  s.  5  para  2  as  re-enacted  by  Ont.  1968,  c.  123,  s.  4(2). 


2072         The  Otitario  Securities  Commission 

If  persons  conducting  a  hearing  have  the  same  power  to 
enforce  the  attendance  of  witnesses  and  compel  them  to  give 
evidence  "as  is  vested  in  the  Supreme  Court  for  the  trial  of 
civil  actions"  they  have  power  to  commit  for  contempt  of 
court  and  the  right  to  apply  to  the  Supreme  Court  for  an 
order  of  committal  might  be  construed  as  an  alternative 
remedy.  We  dealt  fully  with  this  subject  in  Report  Number 
1/^  There  we  recommended  the  repeal  of  all  statutory  pro- 
visions vesting  in  tribunals  power  to  commit  for  contempt 
and  the  amendment  of  the  Public  Inquiries  Act  so  as  to  vest 
the  po^ver  to  commit  in  relevant  cases  in  the  Supreme  Court. 
The  Act  should  be  amended  accordingly. 

Reasons  for  Decision 

At  the  request  of  any  person  or  company  whose  right  to 
trade  in  securities  is  adversely  affected  by  a  direction,  decision, 
order  or  ruling  made  after  a  hearing,  the  presiding  officer 
must  furnish  written  reasons. ^^  This  provision  is  in  accordance 
w^ith  our  recommendation  in  Report  Number  1.^^ 

A  difficult  related  question,  and  one  which,  to  our  know- 
ledge, has  troubled  the  members  of  the  Commission,  is 
whether  a  decision  must  be  based  solely  on  the  record  and  on 
the  evidence  adduced  at  a  hearing.  In  Report  Number  1  we 
dealt  in  part^^  with  this  matter.  There  we  made  reference  to 
technical,  scientific  facts  or  opinions  within  the  tribunal's 
specialized  knowledge  and  stated:  "Parties  should  be  notified 
either  before  or  during  a  hearing  of  material  officially  noticed, 
including  any  memoranda  or  data  prepared  for  consideration 
of  the  tribunal,  and  the  parties  should  be  given  an  opportu- 
nity to  contest  the  material  so  noticed. "^^  We  are  aware  that 
many  of  the  matters  which  come  before  the  Commission  affect 
the  investing  public  and  we  are  also  aware  that  the  nature  of 
those  matters  is  such  that  information  frequently  comes  to  the 
members  of  the  Commission  in  an  informal  way  outside  a 
hearing.  Our  position  on  this  question  is:  the  Commission  is 
exercising  judicial   powers   of  decision   and   it   is   therefore 

^^pp.  441-6  supra. 

'"Ont.  1966,  c.  142,  s.  5,  para.  5. 

''p.  218  supra. 

'"p.  217  supra. 

"See  also  pp.  173  and  199  supra. 


Chapter  126         207:i 

essential  that  those  powers  be  exercised  judicially  and  that 
the  person  or  company  which  might  be  affected  by  a  decision 
must  be  given  the  opportimity  to  meet  the  evidence  which 
might  weigh  against  him  or  it.  The  principles  to  be  applied 
should  be  those  set  out  in  the  Statutory  Powers  Procedure  Act 
recommended  in  Report  Number  1  applicable  to  all  judicial 
tribunals. 

Notice  of  Decision 

Any  person  or  company  to  whom  notice  of  a  hearing  has 
been  given  and  any  other  person  or  company,  w'hich  in  the 
opinion  of  the  presiding  officer  at  the  hearing,  is  primarily 
affected,  is  entitled  to  receive  notice  of  the  direction,  decision, 
order  or  ruling  made,  together  with  a  copy  of  the  written 
reasons,  if  any.-"  The  same  rules  as  are  applicable  to  the 
delivery  of  a  notice  of  hearing  are  applicable  here.  This  pro- 
vision is  satisfactory  as  far  as  it  goes.  There  should  be  the 
additional  requirement  that  the  notice  of  decision  should 
include  a  short  statement  of  the  rights  of  appeal  which  may 
be  available. 

Right  to  Counsel 

Any  person  or  company  attending  or  submitting  evidence 
at  a  hearing  may  be  represented  by  counsel.-^  The  Act,  how- 
ever, does  not  expressly  provide  any  right  to  cross-examine 
witnesses.  Neither  is  there  any  express  right  to  make  submis- 
sions or  argument  at  a  hearing.  We  are  informed  that,  as  a 
matter  of  the  Commission's  practice,  such  privileges  are 
alw^ays  afforded  to  counsel,  but  under  the  Act  they  cannot  be 
insisted  upon  as  rights.  We  recommend  that  there  be  a 
statutory  right  for  counsel  to  examine  and  cross-exainine 
witnesses  and  make  submissions  w^here  the  powers  of  decision 
are  being  exercised.  Where  mere  investigatory  powers  are 
being  exercised  the  provisions  of  the  Public  Inquiries  Act 
should  apply. 

There  should,  in  addition,  be  express  powers  to  grant 
adjournments  of  hearings  and  to  take  official  notice  of  matters. 

The  Act  is  also  silent  on  the  question  ^vhether  hearings 
are  to  be  held  in  public  or  in  private.  We  are  informed  that 

■""Ont.  1966,  c.  142,  s.  5,  para.  6. 
'''Ibid.,  s.  5,  para.  7. 


2074  The  Ontario  Securities  Commission 

the  practice  has  been  to  hold  pubhc  hearings  unless  either  the 
Commission  or  the  person  or  company  involved  has  good 
reason  for  wanting  a  private  hearing.  This  practice  is  reason- 
able and  acceptable  and  we  recommend  that  it  be  given 
statutory  recognition  and  sanction. 

EVIDENCE 

The  presiding  officer  is  not  bound  by  the  rules  of  evi- 
dence; any  relevant  evidence  must  be  received  regardless  of 
whether  the  person  or  company  tendering  it  was  given  notice 
of  the  hearing. 

The  criterion  thus  established  for  the  admissibility  of 
evidence  is  relevance.""  This  partially  conforms  with  our 
general  recommendation  in  Report  Number  1.-^  There  we 
expressed  the  view  that  a  tribunal  should  have  power  to 
ascertain  relevant  facts  by  such  standards  of  proof  as  are  com- 
monly relied  on  by  reasonable  and  prudent  men  in  the 
conduct  of  their  own  affairs  and  that  the  nature  of  proof 
should  go  to  the  weight  rather  than  to  the  admissibility  of 
the  evidence.  This  we  think  is  a  better  standard  than  that 
set  out  in  the  Act.  Many  of  the  decisions  made  by  the  Com- 
mission have  far-reaching  effects. 

Transcript  of  Evidence 

All  oral  evidence  must  be  taken  down  in  writing.^^  This 
transcript  together  with  any  documentary  evidence  and  things 
received  in  evidence  form  the  record. 

It  is  not  clear  why  the  Act  should  stipulate  that  the 
evidence  must  be  taken  down  in  writing.  The  principle  is 
correct  that  there  should  be  a  permanent,  verbatim  record  of 
the  proceedings,  but  for  practical  convenience  it  would 
clearly  be  equally  satisfactory  to  record  the  proceedings 
electronically  and  the  Act  should  provide  for  such  alternate 
methods  of  preserving  the  proceedings.  We  recommend  that 
the  Act  should  be  amended  to  provide  that  "oral  evidence 
received  shall  be  taken  down  in  writing  or  by  any  other 
method  authorized  under  the  Evidence  Act."-^ 


''Ibid.,  s.  5,  para.  3. 

==pp.  216-17  supra. 

-*Ont.  1966,  c.  142,  s.  5,  para.  4. 

=^°Ont.  1960-61,  c.  24,  s.  1. 


Chapter  126         2075 

APPEALS 

General  appeal  provisions  are  contained  in  sections  28 
and  29  of  the  Act. 

Section  28  provides  that  a  person  or  company  primarily 
affected  by  a  direction,  decision,  order  or  ruling  of  the 
Director  is  entitled  to  a  hearing  and  review  by  the  Commis- 
sion. A  request  for  such  hearing  and  review  must  be  in  writing 
and  sent  by  registered  mail  to  the  Director  within  thirty  days 
after  the  mailing  of  the  notice  of  the  direction,  decision,  order 
or  ruling. 

Under  section  29,  an  appeal  lies  at  the  instance  of  any 
person  or  company  primarily  affected  by  a  direction,  decision, 
order  or  ruling  of  the  Commission  to  the  Court  of  Appeal. 
Such  appeal  is  by  notice  of  motion  sent  by  registered  mail  to 
the  Director  of  the  Commission  within  thirty  days  after  the 
mailing  of  the  notice  of  the  Commission's  order.  The  practice 
and  procedure  on  such  appeal  are  the  same  as  on  an  appeal 
from  a  judgment  of  a  judge  of  the  Supreme  Court  in  an 
action.  However,  powers  are  given  to  the  Rules  Committee 
appointed  under  the  Judicature  Act^^  to  vary  or  amend  the 
procedure  or  prescribe  the  procedure  applicable  to  appeals 
taken  to  the  Court  of  Appeal  under  the  Securities  Act,  1966.-' 

Subject  to  our  recommendation  as  to  the  appropriate 
forum  for  such  appeals-^  and  what  we  shall  say  hereafter,  the 
appeal  provisions  of  sections  28  and  29  are  satisfactory.  Even 
in  those  instances  where  the  Director  is  empowered  to  make 
decisions  without  a  hearing,  a  hearing  is  available  as  of  right 
before  the  Commission  with  a  further  right  of  appeal  to  the 
Court  of  Appeal. 

By  the  express  provisions  of  section  29  there  is  no  appeal 
from  a  ruling  of  the  Commission  under  section  59.  Section  59 
empowers  the  Commission,  in  cases  of  doubt,  to  determine 
whether  a  proposed  trade  would  be  in  the  course  of  primary 
distribution^^  or  to  determine  whether,  in  a  given  situation, 

"«R.S.O.  1960,  c.  197,  s.  111. 

"Ont.  1966,  c.  142.  s.  29(2)  as  amended  by  Ont.  1968,  c.  123,  s.  \\{\). 

^^pp.  665-67  supra. 

-"Ont.  1966,  c.  142,  s.  59(1). 


2076         The  Ontario  Securities  Commission 

primaiy  distribution  has  been  concluded.^''  We  discuss 
primary  distribution  later.^^ 

It  is  not  clear  why  there  should  be  no  appeal  from  such 
a  decision,  especially  in  view  of  the  fact  that  section  59  does 
not  require  the  Commission  to  hold  a  hearing  before  making 
its  decision.  We  realize  that  in  most  cases  such  a  right  of 
appeal  would  not  be  exercised  because  the  person  affected 
would  not  wish  to  incur  the  delay  in  pursuing  an  appeal. 
However,  that  consideration  should  not  result  in  there  being 
no  appeal.  We  recommend  that  this  exception  to  the  general 
appeal  provisions  of  the  Act  be  removed. 

Although  the  appeal  provisions  of  the  Act  are,  with  the 
exception  just  discussed,  satisfactory,  the  question  arises 
whether  in  some  cases  a  right  of  appeal  may  be  more  apparent 
than  real.  For  example,  section  19(5)  of  the  Act  provides: 

"...  the  Commission  may,  where  in  its  opinion  such  action 
is  in  the  public  interest 

(a)  order  that  subsection  1  or  3  shall  not,  with  respect  to 
such  of  the  trades  referred  to  in  that  subsection  as  are 
specified  in  the  order,  apply  to  the  person  or  company 
named  in  the  order;" 

The  Commission,  before  exercising  this  power  and  making 
the  order,  must  form  an  opinion  that  its  action  is  in  the  public 
interest.  There  is,  in  other  words,  a  subjective  condition 
precedent  to  the  exercise  of  the  power.^-  The  difficult  ques- 
tion on  which  there  is  no  clear  authority,  is  whether,  on  an 
appeal  to  the  Court  of  Appeal  from  an  order  made  under 
section  19(5),  the  Court  would  be  free  to  examine  the  validity 
of  the  Commission's  opinion  as  to  the  public  interest  and,  if 
it  disagreed,  substitute  its  own  opinion  for  that  of  the  Com- 
mission. Unless  the  Court  can  adopt  such  an  approach,  any 
right  of  appeal  would  be  a  limited  one. 

Section  29(5),  which  deals  with  the  powers  of  the  Court 
of  Appeal  on  an  appeal,  does  not  clearly  resolve  the  problem 
since  the  Court  is  not  expressly  empowered  to  make  any  order 
which  the  Commission  could  have  made  but  it  may  direct  the 

^"Ibid.,  s.  59(3). 
"p.  2085ff.  injra. 
'=pp.  90-93  supra. 


Chapter  126         2077 

Commission  'to  make  such  direction,  order  or  ruling  ...  as 
the  Commission  is  authorized  or  empowered  to  make  .  .  .". 

The  recommendation  was  made  in  Report  Number  1 
that  subjective  conditions  precedent  ought  not  to  be  included 
in  a  statutory  power  unless  they  are  necessary  to  carry  out  the 
scheme  of  the  statute. ^^ 

We  appreciate  that  in  many  cases  the  action  or  decision 
of  the  Commission  must  be  based  on  what  in  the  Commis- 
sion's opinion  is  necessary  in  the  public  interest.  That  is  not 
to  say,  however,  that  the  affected  person  must  therefore  be 
deprived  of  all  rights  of  appeal.  Where  possible  the  criteria 
for  action  by  the  Commission  should  be  more  clearly  specified 
than  by  a  mere  statement  that  it  may  act  "where  in  its  opinion 
such  action  is  in  the  public  interest."  Where  criteria  have 
been  specified,  the  Court  of  Appeal  should  have  power  to  set 
aside  the  decision  where  the  record  does  not  w'arrant  the 
action  taken  by  the  Commission. 

Where  it  would  frustrate  the  scheme  of  the  Act  to  estab- 
lish criteria  for  action,  the  Court  of  Appeal  should  have 
power  to  set  aside  the  decision  where  there  is  no  reasonable 
evidence  to  support  the  opinion  of  the  Commission  that  its 
action  is  in  the  public  interest. 

POWERS  OF  THE  COMMISSION 

Licensing 

All  persons  involved  in  the  business  of  trading  in  securi- 
ties must  be  registered  by  and  with  the  Commission. ^^  The 
Commission  is  therefore  vested  with  the  same  kind  of  powers 
which  we  consider  in  Report  Number  1  in  the  context  of 
the  self-governing  professions,^^  i.e.,  the  power  to  decide  who 
may  engage  in  a  particular  occupation  and  the  power  to 
decide  when  a  person  should  not  be  permitted  to  continue  to 
engage  in  that  occupation.  In  the  exercise  of  these  powers  it  is 
essential  that  proper  regard  be  had  both  to  the  public  interest 
and  to  the  legitimate  interests  of  individuals  who  are  engaged 

='"p.  275  supra. 

"Ont.  1966,  c.  142,  s.  6  as  amended  by  Ont.  1968,  c.  123,  s.  5. 

""See  Chapter  81. 


2078  The  Ontario  Securities  Commission 

or  wish  to  become  engaged  in  the  occupation  of  trading  in 
securities. 

Granting  and  Renewing  Registrations 

The  Director  shall  grant  registration  or  renewal  of 
registration  where,  in  his  opinion,  an  applicant  is  "suitable 
for  registration"  and  where  "the  proposed  registration  is  not 
objectionable."^^  The  Director,  in  his  discretion,  may  impose 
terms  and  conditions  on  a  registration  or  may  restrict  a  regis- 
tration, either  as  to  its  duration  or  as  to  the  securities  or 
classes  of  securities  in  which  the  registrant  is  permitted  to 
trade. ^'  A  valtiable  safeguard  is  provided  by  the  stipulation 
that  before  refusing  to  grant  or  renew  a  registration,  the 
Director  must  afford  to  the  applicant  an  opportunity  to  be 
heard.^^  The  general  procedural  provisions  of  the  Act  apply  to 
such  a  hearing. 

Certain  terms  of  elis:ibilitv  for  resristration  are  set  out.^^ 
The  Director  may  refuse  registration  where  the  applicant  has 
not  been  a  resident  of  Canada  for  at  least  one  year  immediately 
prior  to  the  date  of  his  application  and  if  at  the  date  of  the 
application  he  is  not  a  resident  of  Ontario,  unless  at  the  date 
of  his  application  he  is  registered  in  a  coiTesponding  capacity 
under  the  securities  laws  of  the  jurisdiction  of  his  last  resi- 
dence and  had  been  so  registered  for  at  least  one  year 
immediately  prior  to  the  date  of  his  application  for  registra- 
tion in  Ontario. 

Registration  is  not  required  for  certain  enumerated  kinds 
of  trading.^*^  However,  the  Commission  may  order  that  such 
exemptions  from  registration  not  apply  to  a  named  person  or 
company  where,  in  the  Commission's  opinion,  such  order  is 
in  the  public  interest.^ ^  A  safeguard  both  for  the  individual 
concerned  and  for  the  public  is  provided  by  the  requirement 
that  no  such  order  shall  be  made  without  a  hearing  having 
been  held.  Where,  however,  in  the  opinion  of  the  Commis- 
sion, the  delay  involved  in  scheduling  and  holding  a  hearing 

^"Ont.  1966,  c.  142,  s.  7(1). 
'"Ibid.,  s.  7(3). 
^'Ibid.,  s.  7(2). 
""Ihid.,  s.  14. 
*°/6/d.,  ss.  18,  19. 
*Ubid.,  s.  19(5). 


ChalHer  126         2079 

would  be  prejudicial  to  the  public  interest,  a  temporary  order 
removing  the  exemption  may  be  made  whicli  expires  fifteen 
days  from  the  date  of  its  making.*^- 

The  major  difficulty  with  the  registration  provisions  of 
the  Act  is  vagueness  concerning  the  grounds  for  granting  or 
rejecting  an  application.  No  criteria  are  stated  by  which  to 
determine  whether  an  applicant  is  "suitable  for  registration." 
It  is  not  clear  what  facts  or  circumstances  would  make  a 
proposed  registration  "objectionable." 

Important  licensing  powers  should  not  be  exercised  on 
the  basis  of  the  Director's  opinion  that  such  amorphous  condi- 
tions exist.  Standards  should  be  set  out  in  the  Act.  We  realize 
that  it  may  not  be  possible  to  foresee  and  enumerate  every 
fact  or  circumstance  which  may  be  relevant  to  the  granting  or 
rejection  of  an  application  for  registration.  It  may  well  be 
necessary  to  have  an  omnibus  provision  that  an  application 
shall  not  be  granted  if  it  would  not  be  in  the  public  interest 
that  it  should  be  granted,  but  the  Act  should,  as  far  as  pos- 
sible, set  out  the  facts  and  circumstances  which  will  make  an 
applicant  "suitable"  for  registration  and  the  facts  and  circum- 
stances w^hich  would  make  a  proposed  registration  "objection- 
able."^3 

Suspension  or  Cancellation  of  Registration 

The  Commission  shall  suspend  or  cancel  a  registration 
where,  in  its  opinion,  such  action  is  in  the  public  interest.^* 
This  provision  is  open  to  the  same  criticism  as  that  which 
we  made  concerning  the  criteria  for  granting  or  rejecting  an 
application  for  registration.  The  identical  problem  w^as  dis- 
cussed in  Report  Number  1  when  dealing  with  the  self- 
governing  professions.^^  There,  while  recognizing  that  it  may 
be  necessary  to  include  an  undifferentiated  heading  of 
"professional  misconduct"  as  a  ground  for  suspending  or  can- 
celling the  right  to  practise,  we  recommended  that  the 
professions  identify,  as  precisely  as  possible,  the  kinds  of 
activity  which  might  lead  to  such  suspension  or  cancellation. 
We  make  a  similar  recommendation  here,  mutatis  mutandis. 

*'Ibid.,  s.  19(6). 
''See  pp.  1104-06  supra. 
"Ont.  1966,  c.  142,  s.  8. 
"p.  1189  fF.  supra. 


2080         The  Ontario  Securities  Commission 

The  general  rule  in  the  Act  is  that  a  hearing  must  be 
held  before  any  registration  is  cancelled  or  suspended.  But 
again  where  in  the  opinion  of  the  Commission  a  prior  hearing 
would  cause  delay  ^vhich  would  be  prejudicial  to  the  public 
interest,  it  may  suspend  a  registration  without  a  hearing.  In 
such  case  it  must  forthwith  notify  the  registrant  of  the  sus- 
pension and  give  notice  of  a  hearing  and  review  to  be  held 
before  the  Commission  within  fifteen  days  of  the  date  of  the 
suspension. ^'^  These  provisions  properly  safeguard  the  interests 
both  of  the  public  and  of  the  registrant. 

Powers  of  Investigation 

Power  to  Order  Investigations 

Important  powers  of  investigation  are  conferred  on  the 
Commission. ^'^  Some  of  these  powers  are  subject  to  an 
express  condition  precedent  which  must  be  satisfied  before  the 
Commission's  power  to  order  an  investigation  may  be  exer- 
cised. For  example,  in  order  to  hold  an  investigation  under 
section  21(1)  it  must  either  appear  probable  to  the  Commis- 
sion upon  a  statement  made  under  oath  that  a  person  or 
company  has  either  contravened  provisions  of  the  Act  or  the 
regulations  or  has  committed  an  offence  under  the  Criminal 
Code  in  connection  with  trading  in  securities. 

On  the  other  hand,  under  section  21(2)  the  Commission 
may  "by  order  appoint  any  person  to  make  such  an  investiga- 
tion as  it  deems  expedient  for  the  due  administration  of  [the] 
Act  or  into  any  matter  relating  to  trading  in  securities"  and 
in  such  order  it  "shall  determine  and  prescribe  the  scope  of 
the  investigation."  Under  this  clause  the  powers  of  investi- 
gation are  not  limited  to  matters  which  the  Commission 
"deems  expedient  for  the  due  administration  of  the  Act."  The 
conjunction  "or"  is  used  and  power  is  conferred  on  the  Com- 
mission to  make  an  investigation  into  any  matter  relating  to 
trading  in  securities  and  to  determine  and  prescribe  the  scope 
of  the  investigation.  Prior  to  1968  the  Commission's  powers 
to  appoint  a  person  to  make  the  investigation  could  only  be 

"Ont.  1966,  c.  142,  s.  8(2)  as  re-enacted  by  Ont.  1968,  c.  123,  s.  6. 
'Uhid.,  s.  21(1)  and  (2)  as  re-enacted  by  Ont.  1968,  c.  123,  s.  8. 


Cliajjin  126         2081 

exercised  "with  the  consent  of  the  Minister. "^^  The  reason 
given  for  the  change  was  based  on  the  principle  that  the  Com- 
mission should  be  independent  of  the  Minister.  We  agree 
that  with  respect  to  judicial  decision-making  power  the  Com- 
mission should  be  independent  of  the  Minister  but  it  violates 
the  principle  of  ministerial  responsibility  to  give  to  an 
appointed  body  uncontrolled  powers  of  investigation  "into 
any  matter  relating  to  trading  in  securities"  and  to  "deter- 
mine and  prescribe  the  scope  of  the  investigation." 

In  addition  to  the  powers  of  the  Commission  which  we 
have  jtist  discussed,  the  Minister  may  by  order  appoint  any 
person  to  make  stich  investigation  as  he  deems  expedient  for 
the  due  administration  of  the  Act  or  into  any  matter  relating 
to  trading  in  securities,  in  which  case  the  person  so  appointed, 
for  the  purposes  of  the  investigation,  has  the  same  authority, 
powers,  rights  and  privileges  as  a  person  appointed  under 
section  21.^^  In  this  case  the  Minister  is  not  required  to  pre- 
scribe the  scope  of  the  investigation. 

The  language  of  the  Act  is  ambiguous.  Is  the  person 
appointed  to  make  such  an  investigation  as  he  deems  neces- 
sary or  such  investigation  as  the  Minister  deems  necessary? 
The  scope  of  the  investigation  is  important.  It  should  be 
defined  by  the  Minister. 

We  think  the  powers  of  the  Commission  to  conduct  an 
investigation  should  be  subject  to  the  approval  of  the  Minis- 
ter and  that  all  investigations  should  be  limited  by  the  require- 
ment that  they  are  "expedient  for  the  due  administration  of 
the  Act."  If  in  any  particular  case  wider  powers  are  necessary 
the  provisions  of  the  Public  Inquiries  Act  should  be  invoked. 

The  Powers  of 
THE  Investigator 

The  person  appointed  to  investigate  may  investigate, 
inquire  into  and  examine  the  complete  financial  affairs  and 
the  records,  books,  correspondence  etc.  of  the  person  or  com- 
pany whose  affairs  are  being  investigated  and  he  may  seize  any 
documents,  records,  securities  or  other  property  of  such  per- 
son or  company  subject  only  to  their  being  made  available 

^''Ont.  1966,  c.  142,  s.  21(2)  as  re-enacted  by  Ont.  1968,  c.  123,  s.  8. 
*'Ibid.,  s.  23  as  amended  by  Ont.  1968,  c.  123,  s.  9. 


2032  The  Ontario  Securities  Commission 

for  inspection  and  copying  by  the  person  or  company  from 
which  they  were  seized. ^°  He  has  the  same  power  as  is  vested 
in  the  Supreme  Court  for  the  trial  of  civil  actions  to  summon 
and  enforce  the  attendance  of  w^itnesses,  to  compel  witnesses 
to  give  evidence  on  oath  or  otherwise,  and  to  compel  witnesses 
to  produce  documents,  records  and  things. 

A  power  to  commit  a  person  for  contempt  for  refusal  to 
attend,  answer  questions,  produce  documents  etc.  is  vested  in 
a  judge  of  the  Supreme  Court  not  in  the  investigator, 
although  this  may  not  be  clear.^^ 

We  dealt  with  a  similar  provision  in  section  5  paragraph 
2  earlier.^-  What  we  said  there  applies  equally  here.  If  the 
investigator  has  the  same  powders  of  compulsion  as  are  vested 
"in  the  Supreme  Court  for  the  trial  of  civil  actions"  he  has 
power  to  commit.  The  power  vested  in  a  judge  of  the 
Supreme  Court  to  commit  may  only  be  an  alternative  remedy. 
This  should  be  clarified  by  legislation. 

A  person  giving  evidence  at  an  investigation  may  be 
represented  by  counsel  but  the  functions  and  rights  of  such 
counsel  are  not  defined. ^^  Our  recommendations  as  to  the 
rights  of  counsel  in  an  inquiry  are  set  out  in  Report  Num- 
ber 1.^^ 

They  are  applicable  to  investigations  under  the  Securi- 
ties Act,  1966. 

Reporting  Results  of  Investigation 

An  investigator  appointed  by  the  Commission  under 
section  21  of  the  Act  must  report  the  results  of  his  investiga- 
tion to  the  Commission  and^^  an  investigator  appointed  by 
the  Minister  under  section  23  must  report  to  the  Minister.^'" 

"No  person,  without  the  consent  of  the  Commission,  shall 
disclose,  except  to  his  counsel,  any  information  or  evidence 
obtained  or  the  name  of  any  witness  examined  or  sought  to 
be  examined  under  section  21  or  2S."^'^ 


'"Ibid.,  s.  21(3)(6)(7). 
''Ibid.,  s.  21(4). 
°'pp.  2071-72  supra. 
"''Ont.  1966,  c.  142,  s.  21(5). 
°*pp.  447-52  supra. 
"^Ont.  1966,  c.  142,  s.  21(9). 
'"Ibid.,  s.  25. 
"Ibid.,  s.  24. 


Chapter  126         2083 

On  ihe  one  hand  this  provision  is  much  Loo  narrow  and 
on  the  other  it  is  much  too  wide.  1  he  Commission  and  its 
officers  and  servants  have  the  right  to  receive  information  ol 
a  highly  confidential  nature  other  than  that  obtained  under 
sections  21  and  23.  llicy  should  be  restricted  as  to  the  dis- 
closure of  such  information.  Neither  the  Commission  nor 
those  employed  by  it  should  have  a  right  to  disclose  informa- 
tion obtained  in  the  course  of  their  duties  beyond  that  which 
is  necessary  for  the  purposes  of  the  statute  and  the  adminis- 
tration of  justice. ^^ 

Powers  to  Make  Interim  Orders 

"26.  (1)  The  Commission  may, 

(a)  where  it  is  about  to  order  an  investigation  under  section 
21  or  during  or  after  an  investigation  under  section  21 
or  23; 

(b)  where  it  is  about  to  make  or  has  made  a  direction,  de- 
cision, order  or  ruling  suspending  or  cancelling  the  regis- 
tration of  any  person  or  company  or  affecting  the  right  of 
any  person  or  company  to  trade  in  securities;  or 

(c)  ^vhere  criminal  proceedings  or  proceedings  in  respect  of 
a  contravention  of  this  Act  or  the  regulations  are  about 
to  be  or  have  been  instituted  against  any  person  or  com- 
pany, that  in  the  opinion  of  the  Commission  are  con- 
nected with  or  arise  out  of  any  security  or  any  trade 
therein  or  out  of  any  business  conducted  by  such  person 
or  company, 

in  writing  or  by  telegram  direct  any  person  or  company 
having  on  deposit  or  under  control  or  for  safekeeping  any 
funds  or  securities  of  the  person  or  company  referred  to  in 
clause  a,  b  or  c  to  hold  such  funds  or  securities  or  direct  the 
person  or  company  referred  to  in  clause  a,  b  or  c  to  refrain 
from  withdrawing  any  such  funds  or  securities  from  any  other 
person  or  company  having  any  of  them  on  deposit,  under 
control  or  for  safekeeping  or  to  hold  all  funds  or  securities  of 
clients  or  others  in  his  possession  or  control  in  trust  for  any 
interim  receiver,  custodian,  trustee,  receiver  or  liquidator 
appointed  under  the  Bankruptcy  Act  (Canada),  The  judica- 
ture Act,  The  Corporations  Act  or  the  Winding-up  Act 
(Canada),  or  until  the  Commission  in  writing  revokes  the 
direction    or    consents    to    release    any    particular    fund    or 


*See  p.  462  supra. 


2084  The  Ontario  Securities  Commission 

security  from  the  direction,  provided  that  no  such  direction 
applies  to  funds  or  secm-ities  in  a  stock  exchange  clearing 
house  or  to  securities  in  process  of  transfer  by  a  transfer  agent 
unless  the  direction  expressly  so  states,  and  in  the  case  of  a 
bank,  loan  or  trust  company  the  direction  applies  only  to  the 
offices,  branches  or  agencies  thereof  named  in  the  direction. "^'^ 

These  powers  are  wide  and  although  strong  measures 
may  well  be  necessary  to  protect  the  investing  public  the 
powers  conferred  under  this  section  require  greater  defini- 
tion. When,  for  example,  is  the  Commission  "about  to  order 
an  investigation  .  .  ."or  about  to  make  a  direction  or  decision 
"...  suspending  or  cancelling  the  registration."?  These  pro- 
visions contemplate  the  preservation  of  the  status  quo  while 
the  Commission  acts,  but  the  Commission  may  never  act.  It 
would  seem  that  such  drastic  powers  should  be  exercised  only 
^vhere  the  Commission  has  decided  to  order  an  investigation 
or  to  make  a  direction,  or  someone  has  instituted  criminal 
proceedings  or  proceedings  in  respect  of  a  contravention  of 
the  Act. 

It  may  be  that  a  court  would  interpret  this  section  to 
mean  the  Commission  would  only  be  "about"  to  act  where  it 
has  in  fact  made  a  decision. 

The  section  should  be  amended  to  make  it  clear  that  the 
powers  conferred  under  it  cannot  be  exercised  unless  the 
Commission  has  decided  to  order  an  investigation,  or  to  make 
"a  direction,  decision,  order  or  ruling  suspending  or  cancel- 
ling the  registration  of  any  person  or  company  .  .  ."  or  w^here 
some  step  has  been  taken  to  institute  criminal  proceedings. 
If  these  powders  are  necessary  as  interim  powers  it  should  only 
be  possible  to  exercise  them  as  such. 

It  is  not  to  be  overlooked  that  the  Commission  may 
apply  to  a  judge  of  the  Supreme  Court  for  the  appointment 
of  a  receiver  or  a  receiver  and  manager  or  a  trustee  of  the 
property  of  the  person  or  company  involved  in  precisely  the 
same  circumstances  as  the  Commission  may  act  under  the 
powers  conferred  on  it  under  section  26(1)  which  we  have 
just  been  discussing.  In  such  case  the  judge  to  whom  the 
application  is  made  must  be  satisfied  that  the  appointment 
^^'ould  be  in  the  best  interests  of  the  creditors  of  the  person  or 

""Ont.  1966,  c.  142,  s.  26(1). 


Chafjlcr  126         2085 

company  involved.  Provision  is  made  for  an  ex  parte  appli- 
cation to  a  judge  by  the  Commission  but  any  order  made 
ex  parte  is  only  effective  for  a  period  not  exceeding  eight 
days.*'*' 

It  is  to  be  obsened  that  there  are  greater  safeguards  for 
the  right  of  the  individual  when  the  application  is  made  to 
the  judge  than  where  the  Commission  makes  a  direction 
under  section  26(1). 

Miscellaneous  Powers  of  Decision 

Primary  Distribution 

Under  section  59  where  doubt  exists  as  to  whether  a  pro- 
posed or  intended  trade  in  a  security  would  be  a  primary  dis- 
tribution, the  Commission  has  power  to  determine  the  inat- 
ter.*'^  A  condition  precedent  is  attached  to  the  exercise  of  the 
power:  an  interested  party  must  apply  for  the  question  to  be 
determined. 

The  Commission,  apparently  on  its  own  motion,  has 
power  to  determine  whether  a  primary  distribution  to  the 
public  of  a  security  has  been  concluded  or  is  still  in  progress. *'- 

In  view  of  the  stringent  rules  contained  in  the  Act  with 
respect  to  primary  distribution,  these  powers  are  necessary. 
It  is  not  clear  why  the  Commission  should  be  empowered  to 
act  on  its  own  initiative  under  subsection  (3)  but  not  under 
subsection  (1). 

It  is  also  unclear  why  these  powers  of  decision  should  be 
stripped  of  all  procedural  safeguards.  It  is  understood  that, 
as  a  matter  of  practice,  the  Commission  does  hold  a  hearing 
before  making  any  determination  under  section  59  but  there 
is  no  provision  in  the  statute  requiring  such  a  hearing.  We 
recommend  that  the  statute  be  amended  to  provide  for  an 
opportunity  to  be  heard  before  any  decision  is  made  under 
section  59. 

We  have  already  referred  to  the  absence  of  any  right  of 
appeal  under  this  section.   This  should  be  provided. 

'"'Ibid.,  s.  27(3). 
"/biU,  s.  59(1). 
^'Ihid.,  s.  59(3). 


2086  The  Ontario  Securities  Commission 

Rules  Concerning  Primary  Distribution 

The  Director  may  in  his  discretion  issue  a  receipt  for  a 
prospectus  required  to  be  filed  in  the  case  of  primary  distri- 
bution unless  certain  facts  appear  to  him/'^  e.g.,  the  document 
required  to  be  filed  does  not  comply  with  the  Act  or  regula- 
lations,  or  contains  misleading  statements.  Before  a  ruling  is 
made  the  person  who  filed  a  prospectus  must  have  an  oppor- 
tunity to  be  heard.   The  ruling  must  be  in  writing.^^ 

If,  after  a  prospectus  has  been  received,  it  appears  to  the 
Commission  that  any  ground  exists  upon  which  a  receipt 
could  have  been  withheld  under  the  Act,  the  Commission  may 
act  to  order  that  all  trading  in  the  primary  distribution  shall 
cease. ^^  No  such  order  shall  be  made  without  a  hearing  but 
there  is  provision  for  an  emergency  order.  If,  in  the  Commis- 
sion's opinion,  the  time  required  to  hold  a  hearing  would  be 
prejudicial  to  the  public  interest,  a  temporary  order  may  be 
made  which  shall  expire  fifteen  days  from  the  date  of  its 
making.^*^ 

Special  provisions  are  made  respecting  the  primary  dis- 
tribution of  a  security  to  which  the  prospectus  of  a  finance 
company  relates.  The  Director  may  require  the  finance  com- 
pany to  furnish  specific  information  to  him  from  time  to  time, 
in  order  that  he  may  satisfy  himself  that: 

"(i)  the  securities  are  being  distributed  in  a  manner  accept- 
able to  him, 

(ii)  the  securities  are  secured  in  such  manner,  on  such  terms 
and  by  such  means  as  are  required  by  the  regulations,  and 

(iii)  as  at  such  date  as  may  be  acceptable  to  the  Director  the 
finance  company  met  such  financial  and  other  requirements 
and  conditions  as  are  specified  in  the  regulations."*''^ 

If  the  Director  reports  to  the  Commission  that  he  is  not 
satisfied  with  any  statement  so  furnished,  the  Commission 
may  order  that  all  trading  in  the  primary  distribution  shall 
cease.    The  provisions  of  the  Act  concerning  hearings  and 

"^Ibid.,  s.  61(1)  as  amended  by  Ont.  1968,  c.  123,  s.  22. 

"'Ibid.,  s.  61(2). 

^^Ihid.,  s.  62(1). 

^^Ibid.,  s.  62(2). 

"'Ibid.,  s.  62a  as  enacted  by  Ont.  1967,  c.  92,  s.  2. 


Chapter  126         2087 

temporary  orders  applicable  to  the  primary  distribution  of 
other  securities  apply  to  orders  made  respecting  securities  of 
finance  companies. 

Disclosure  of  Corporate  Information 

The  Corporations  Act  provides*'**  that  a  company  may 
apply  to  a  judge  of  the  High  Court  for  an  order  permitting 
it  to  omit  from  its  interim  financial  statement  and  from  its 
annual  statement  of  profit  and  loss  information  as  to  sales  or 
gross  operating  revenue  where  he  is  satisfied  that  the  dis- 
closure of  such  information  would  be  unduly  detrimental  to 
the  interest  of  the  company. 

Under  the  Securities  Act,  1966  a  person  or  company  may 
apply  to  the  judge  of  the  High  Court  designated  by  the  Chief 
Justice  of  the  High  Court  for  an  order  declaring  a  take-over 
bid  to  be  an  "exempt  offer"  under  the  requirements  of  the 
Act.*'^  On  such  application  the  Commission  is  entitled  to 
notice  and  to  appear  and  be  heard.  An  appeal  lies  to  the 
Court  of  Appeal  from  any  order  made.  On  the  other  hand,  a 
company  to  which  Part  XH  (dealing  with  financial  disclosure) 
of  the  Act  applies  may  apply  to  the  Commission  for  an  order 
permitting  the  omission  from  financial  statements  of  infor- 
mation as  to  sales  or  gross  operating  revenue.^** 

It  is  difficult  to  see  why  an  application  under  the  Cor- 
porations Act  and  under  section  89  of  the  Securities  Act 
should  be  made  to  a  judge  of  the  High  Court,  in  the  latter 
case  with  a  right  of  appeal  to  the  Court  of  Appeal,  while  an 
application  under  section  121(3)  of  the  Securities  Act,  1966 
should  be  made  to  the  Securities  Commission.  These  appli- 
cations would  appear  to  be  all  of  such  a  nature  that  they 
should  be  made  to  the  Securities  Commission  with  a  right  of 
appeal  to  the  Court  of  Appeal. 

Where  an  exempting  order  is  made,  a  shareholder  should 
have  a  right  to  apply  to  the  Commission  for  reasons  for  its 
decision.  The  rights  of  shareholders  and  investors  to  adequate 
and  proper  information  respecting  the  financial  affairs  of  cor- 
porations should  be  adequately  protected. 

""R.S.O.  I960,  c.  71,  s.  84(3)  as  amended  by  Ont.  1966,  c.  28,  s.  8(4). 
""Ont.  1966,  c.  142,  s.  89. 
'"Ibid.,  s.  121(3). 


2088  The  Ontario  Securities  Coynmission 

Insider  Trading 

Section  1 09  of  the  Act  requires  that  insiders  report  their 
trading  to  the  Commission.  Section  141a^^  provides  that 
where  it  appears  to  the  Commission  that  there  has  been  a 
failure  to  comply  with  the  reporting  requirements  the  Com- 
mission may  apply  to  a  judge  of  the  High  Court  for  an  order 
compelling  compliance. 

Stock  Exchanges 

Under  section  139(2)  the  Commission  has  broad  powers, 
which  are  exercisable  whenever  it  appears  to  be  in  the  public 
interest,  to  make  any  direction,  order,  determination  or 
ruling: 

"(a)   with  respect  to  the  manner  in  which  any  stock  exchange 
in  Ontario  carries  on  business; 

(b)  -with  respect  to  any  by-law,  ruling,  instruction  or  regula- 
tion of  any  such  stock  exchange;" 

There  is  no  requirement  that  a  hearing  be  held  before 
these  wide  powers  are  exercised.  We  recommend  that  there  be 
such  a  requirement.  Presumably  the  general  appeal  pro- 
visions are  applicable. 

MISCELLANEOUS  PROVISIONS 

Rule-making  Power 

Although  section  144  confers  on  the  Lieutenant  Gover- 
nor in  Council  the  power  to  make  regulations  on  a  wide  range 
of  topics,  the  only  reference  to  procedure  is  contained  in 
paragraph  (i)  thereof  which  empowers  the  Lieutenant  Gov- 
ernor in  Council  to  make  regulations  prescribing  the  practice 
and  procedure  of  investigations  under  sections  21  and  23.  The 
power  has  not  been  exercised. 

Immunity  from  Action 

The  Act  provides  restraint  on  the  right  of  access  to  the 
courts  of  two  kinds: 


"■Ihid.,  s.  141a  as  enacted  by  Ont.  1968,  c.  123,  s.  40. 


Chapter  126         2089 

"(1)  Except  with  the  consent  of  the  Minister,  no  action  what- 
ever and  no  proceedings  by  way  of  injunction,  man- 
damus, prohibition  or  other  extraordinary  remedy  lies 
or  shall  be  instituted, 

(a)  against  any  person,  whether  in  his  public  or  private 
capacity,  or  against  any  company  in  respect  of  any 
act  or  omission  in  connection  with  the  administra- 
tion or  the  carrying  out  of  the  provisions  of  this  Act 
or  the  regulations  where  such  person  is  a  member  of 
the  Commission,  a  representative  of  the  Commis- 
sion or  the  Director,  or  where  such  person  or  com- 
pany w^as  proceeding  under  the  written  or  oral 
direction  or  consent  of  any  one  of  them  or  under  an 
order  of  the  Minister  made  under  this  Act;  or 

(b)  against  any  exchange  auditor,  district  association 
auditor  or  association  auditor,  employed  under 
clause  b  of  section  30,  in  respect  of  the  performance 
of  his  duties  as  such. 

(2)  No  person  or  company  has  any  rights  or  remedies  and 
no  proceedings  lie  or  shall  be  brought  against  any  per- 
son or  company  in  respect  of  any  act  or  omission  of  the 
last-mentioned  person  or  company  done  or  omitted  in 
compliance  or  intended  compliance  with, 

(a)  any  requirement,  order  or  direction  under  this  Act 
of, 

(i)  the  Commission  or  any  member  thereof, 
(ii)  the  Director, 

(iv)  any  person  appointed  by  order  of  the  Minister, 
(v)  the  Minister, 

(vi)  any  representative  of  the  Minister,  the  Com- 
mission, the  Director  or  of  any  person  appointed 
by  the  Minister;  or 

(b)  this  Act  and  the  regulations. "^^ 

If  this  protection  is  necessary  it  is  unnecessarily  wide  and 
much  wider  than  is  given  to  members  of  many  other  Com- 
missions. 

The  first  provision  purports  to  deny  access  to  the  courts 
"except  with  the  consent  of  the  Minister"  if  the  act  or  omis- 
sion is  in  connection  with  the  administration  of  the  provisions 
of  the  Act  or  the  regulations.  This  provision  purports  to  deny 
to  the  individual  the  right  to  relief  through  the  courts  w^here 

'^Ihid.,  s.  142(1)(2)  as  amended  by  Ont.  1968,  c.  123,  s.  41. 


2090         The  Ontario  Securities  Commission 

the  persons  referred  to  may  have  acted  negligently  in  the  per- 
formance of  their  duties.  For  example,  where  an  investiga- 
tion is  ordered  under  section  21  the  person  appointed  to  make 
the  investigation  "may  seize  and  take  possession  of  any  docu- 
ments, records,  securities  or  other  property  of  the  person  or 
company  whose  affairs  are  being  investigated."^^  If  in  the 
course  of  the  investigation  the  person  seizes  records  quite 
irrelevant  to  the  investigation  or  omits  to  take  proper  care  of 
securities  seized  and  they  are  lost  or  destroyed  the  owner  is 
barred  from  any  right  of  action  unless  he  obtains  the  consent 
of  the  Minister.  If,  in  any  case,  there  should  be  a  provision 
requiring  the  consent  of  a  Minister  before  an  action  may  be 
brought,  the  Minister  should  not  be  the  Minister  who  has  the 
powers  of  the  Minister  charged  with  the  administration  of  the 
Securities  Act,  1966  and  power  to  issue  the  orders  thereunder. 
If  a  consent  is  to  be  required  at  all  it  should  be  the  consent  of 
the  Attorney  General,  who  is  the  chief  law  officer  of  the 
Crown. 

The  second  provision  we  have  referred  to  is  an  absolute 
bar  to  any  right  of  action  and  is  worded  to  include  "any  act  or 
omission  .  .  .  done  or  omitted  in  compliance  or  intended  com- 
pliance with"  the  Act  or  the  regulations.  The  test  is  not 
whether  the  act  was  a  lawful  act  and  was  done  in  compliance 
with  the  Act  or  the  regulations  but  it  is  a  subjective  one.  The 
subject  has  no  relief  for  injury  done  no  matter  how  mistaken 
or  careless  the  person  doing  the  injury  had  been  as  long  as  he 
"intended  to  act  or  omit  to  act  in  compliance  with  the  Act." 
The  legal  rights  of  the  individual  are  made  subject  to  the 
condition  of  the  mind  of  the  wrongful  actor. 

These  provisions  in  the  Securities  Act,  1966  are  in  viola- 
tion of  the  spirit  of  the  Proceedings  Against  the  Crown  Act^"* 
and  in  some  respects  they  are  contrary  to  the  letter  of  the  Act. 

The  Proceedings  Against  the  Crown  Act  provides: 
"Where  this  Act  conflicts  with  any  other  Act,  this  Act 
governs."'^  However,  the  provisions  of  the  Securities  Act,  1966 
were  enacted  after  the  Proceedings  Against  the  Crown  Act 
and  would  therefore  prevail. ^^ 

'^Ibid.,  s.  21(6). 
'^Ont.  1962-63,  c.  109. 
'"Ibid.,  s.  26. 
"Seep,  \972fi.  supra. 


Chapter  126         2091 

In  dealing  with  the  provisions  of  the  Farm  Products 
Marketing  Act'"  which  contains  a  somewhat  similar  pro- 
tective section  we  said: 

"As  we  have  said  with  respect  to  similar  provisions  in  other 
statutes,  we  can  see  no  reason  why  such  members  or  em- 
ployees should  recei\e  any  \vider  protection  than  is  affcjrded 
by  the  common  law  for  those  acting  under  statutory  authority. 
The  exemption  from  liability  even  extends  to  acts  done  with- 
out statutory  authority  as  long  as  they  are  done  in  good  faith 
and  in  the  purported  exercise  of  statutory  authority.  We 
believe  that  the  Board  and  the  local  boards  and  their  re- 
spective members  and  employees  shoidd  be  fully  liable  for 
all  actionable  wrongs  committed  by  them  and  therefore 
recommend  that  section  4(6)  should  be  repealed.  Members 
and  employees  who  have  acted  in  good  faith  should  be  en- 
titled to  be  fully  indemnified  by  their  boards  with  respect  to 
any  judgments  obtained  against  them  relating  to  acts  in- 
tended to  be  done  pursuant  to  the  Act  and  regulations." 

We  think  what  we  said  there  applies  with  equal  force  to 
the  Securities  Act,  1966.  Section  142  should  be  repealed  and 
the  Proceedings  Against  the  Crown  Act  should  be  left  to 
apply  to  matters  arising  out  of  the  administration  of  the 
Securities  Act,  1966  with  a  provision  that  members,  em- 
ployees and  those  acting  under  the  authority  of  the  Act  should 
be  entitled  to  be  fully  indemnified  by  the  Crown  with  respect 
to  any  judgments  obtained  against  them  relating  to  acts  done 
in  good  faith  intended  to  be  performed  pursuant  to  the  Act 
and  the  regulations. 

We  discuss  the  Proceedings  Against  the  Crown  Act  later 
in  this  Report  with  particular  reference  to  statutory  pro- 
visions similar  to  those  we  have  been  just  considering."^^ 

OFFENCES 

The  Act  contains  numerous  provisions  for  offences  and 
prescribes  different  penalties  for  different  offences.'^  In  addi- 
tion, the  Commission  may  make  orders  with  penal  conse- 
quences, e.g.,  cancellation  of  licences^"  and  orders  for  suspen- 

"pp.  1797-98  supra. 

'^Chapter  131. 

"Ont.  1966,  c.  142,  ss.  99,  111,  135,  s.  136  as  amended  bv  Ont.  19G8,  c.  123, 

s.  38. 
^"Ibid.,  s.  8. 


2092         The  Ontario  Securities  Commission 

sion  of  trading.^ ^  In  certain  cases  the  consent  of  the  Commis- 
sion is  required  before  prosecutions  may  be  commenced^- 
and  in  other  cases  consent  of  the  Minister  is  required. ^^  These 
provisions  are  designed  to  control  private  prosecutions.  That 
being  the  case,  the  consent  or  authority  to  prosecute  should 
come  from  the  Attorney  General  who  is  by  tradition  and  by 
statute  the  law  officer  of  the  Crown  in  charge  of  public  pros- 
ecutions.^^ It  is  incongruous  that  the  Attorney  General  should 
have  to  seek  the  consent  of  the  Commission  or  the  Minister 
before  he  may  institute  a  prosecution  for  an  offence  under 
the  Act. 

POWER  TO  EXEMPT  FROM  PROVISIONS 
OF  THE  ACT 

1.  "(1)  The  Commission  may,  where  in  its  opinion  such 
action  is  not  prejudicial  to  the  public  interest,  order,  sub- 
ject to  such  terms  and  conditions  as  it  may  impose,  that 
sections  6  and  35  do  not  apply  to  any  trade,  security,  per- 
son or  company,  as  the  case  may  be,  named  in  the  order. 
(2)  A  notice  of  each  order  made  under  subsection  1  and  a 
summary  of  the  facts  relating  thereto  shall  be  published 
by  the  Commission  as  soon  as  practicable  after  such  order 
is  made,  and  such  order  shall  be  laid  before  the  Assembly 
if  it  is  in  session."®^ 

2.  '\l)  Upon  the  application  of  an  interested  person  or  com- 
pany, the  Commission  may, 

(a)  if  a  requirement  of  section  109  conflicts  with  a  require- 
ment of  the  laAvs  of  the  jurisdiction  in  Avhich  a  corpor- 
ation is  incorporated;  or 

(b)  if  the  laws  of  the  jurisdiction  to  ^vhich  the  corporation 
is  subject  contain  substantially  similar  requirements 
as  contained  in  section  109;  or 

(c)  if  otherwise  satisfied  in  the  circumstances  of  the  par- 
ticular case  that  there  is  adequate  justification  for  so 
doing, 

make  an  order  on  such  terms  and  conditions  as  seem  to 
the  Commission  just  and  expedient  exempting,  in  whole 
or  in  part,  a  person  or  company  from  the  requirements  of 
section  109. 


V&irf.,  s.  62,  s.  141b  as  enacted  by  Ont.  1968,  c.  123,  s.  40. 

^Ihid.,  s.  111(4). 

^Ihid.,  s.  137(1),  s.  142(l)(a)  as  amended  bv  Ont.  1968.  c.  123,  s.  41(1). 

*Ont.  1968-69,  c.  27,  s.  5(15)(h). 

■^Ont.  1966,  c.  142,  s.  20. 


Chapter  126         209:i 

(2)  An  insider  of  a  corporation  who  is  subject  to  this  Part 
by  virtue  only  of  subclause  i  of  clause  a  of  section  100 
ceases  to  be  subject  to  this  Part  if  the  corporation  does  not 
have  owners  of  its  equity  shares  whose  last  address  as 
shown  on  the  books  of  the  corporation  is  in  Ontario."8« 

3.  "(1)  Upon  the  application  of  a  corporation,  the  Commis- 
sion may, 

(a)  if  a  requirement  of  this  Part  conflicts  with  a  require- 
ment of  the  laws  of  the  jurisdiction  in  which  a  cor- 
poration is  incorporated;  or 

(b)  if  the  laws  of  the  jurisdiction  to  which  the  corpora- 
tion is  subject  contain  substantially  similar  require- 
ments as  contained  in  this  Part;  or 

(c)  if  otherwise  satisfied  in  the  circumstances  of  the  par- 
ticular case  that  there  is  adequate  justification  for  so 
doing:, 

make  an  order  on  such  terms  and  conditions  as  seem  to 
the  Commission  just  and  expedient  exempting,  in  whole 
or  in  part,  the  corporation  from  the  requirements  of  this 
Part. 

(2)  A  corporation  that  is  subject  to  this  Part  by  virtue 
only  of  subclause  i  of  clause  b  of  section  118  ceases  to  be 
subject  to  this  Part  if  the  corporation  does  not  have  owners 
of  its  equity  shares  whose  last  address  as  shown  on  the 
books  of  the  corporation  is  in  Ontario. "^'^ 

These  provisions  give  to  the  Commission  wide  legislati\e 
powers. 

In  the  first  case,  the  powers  of  exemption  apply  to  the 
requirements  of  the  Act  w^ith  respect  to  registration  of  persons 
trading  in  securities  and  the  requirements  in  respect  of  filing 
a  prospectus  before  trading  in  the  course  of  primary  distribu- 
tion of  shares  is  permitted.  A  minimum  safeguard  is  pro- 
vided. The  Commission  must  be  of  the  opinion  "such  action 
is  not  prejudicial  to  the  public  interest." 

The  second  case  has  to  do  with  insider  trading  and  the 
requirements  to  report  such  trading  to  the  Commission.  Two 
standards  which  are  alternative  conditions  precedent  are  set 
out  before  the  Commission  may  make  an  exempting  order 
under  clauses  a  or  b,  but  there  are  no  standards  or  limitations 

'^Ibid.,  s.  116. 
''Ibid.,  s.  131. 


2094         The  Ontario  Securities  Commission 

with  respect  to  the  powers  conferred  in  clause  c  a  third  altern- 
ative. The  Commission  is  not  even  required  to  consider  the 
public  interest.  All  that  is  required  is  that  it  be  "satisfied  in 
the  circumstances  of  the  particular  case  that  there  is  adequate 
justification  for  so  doing."  It  is  not  required  to  publish  an 
order  made  under  the  section  nor  to  report  to  the  Minister 
that  it  has  made  such  an  order.  This  is  the  sort  of  legislative 
act  over  which  the  Minister  should  have  control.  The  Act 
should  require, 

(1)  that  such  orders  should  only  be  made  after  consider- 
ation of  the  public  interest; 

(2)  that  such  orders  should  be  reported  to  the  Minister 
who  is  responsible  to  the  Legislature  for  the  administration 
of  the  Act. 

The  third  case  has  to  do  with  the  requirements  of  the  Act 
for  financial  disclosure.  In  this  case  standards  are  set  out  in 
clauses  a  and  h  for  the  exercise  of  the  power  of  exemption 
which  are  quite  definite.  Clause  c  gives  to  the  Commission 
power  to  exempt  if  satisfied  in  the  circumstances  in  the  par- 
ticular case  that  there  is  adequate  justification  for  so  doing. 
No  finding  is  required  that  the  public  interest  or  the  interest 
of  shareholders  will  be  adequately  protected  notwithstanding 
such  exemption,  nor  is  the  Commission  required  to  report  the 
making  of  such  an  order  to  the  Minister. 

What  we  have  said  with  respect  to  the  second  case  applies 
with  equal  force  to  the  third  case. 

RECOMMENDATIONS 

1.  The  Act  should  provide  that  members  of  the  Commis- 
sion should  be  appointed  for  fixed  terms  and  should  be 
removable  only  for  cause. 

2.  The  Act  should  provide  that  the  Chairman  and  Director 
of  the  Commission  each  have  legal  training. 

3.  Section  2(3)  of  the  Act  should  be  amended  to  provide 
that  a  quorum  shall  consist  of  three  members  including 
the  Chairman  or  a  member  of  the  Commission  with  legal 
training. 

4.  Section  5,  paragraph  1,  should  be  amended  to  provide 
that  (a)  the  notice  of  hearing  be  sent  at  least  1 0  days  prior 


Chapter  126         2095 

to  the  hearing  with  power  in  a  member  of  the  Commis- 
sion to  abridge  the  time  where  on  reasonable  grounds  he 
deems  it  proper;  (b)  persons  or  companies  affected  be 
permitted  to  waive  the  10  day  notice,  and  (c)  persons 
appearing  at  the  hearing  have  a  right  to  be  heard  and  this 
should  be  set  out  in  the  notice. 

5.  Section  5,  paragraph  2  and  section  21(4)  should  be 
amended  to  make  it  clear  that  neither  the  Commission 
nor  any  person  other  than  a  judge  of  the  Supreme  Court 
has  power  to  commit  for  contempt. 

6.  Section  5,  paragraph  3,  should  be  amended  to  provide 
that  in  determining  the  relevance  of  evidence  the  pre- 
siding officer  should  employ  such  standards  of  proof  as 
are  commonly  relied  on  by  reasonable  and  prudent  men 
in  the  conduct  of  their  own  affairs. 

7.  Section  5,  paragraph  4,  should  be  amended  to  read  ".  .  . 
oral  evidence  received  shall  be  taken  down  in  writing  or 
by  any  other  method  authorized  under  the  Evidence 
Act." 

8.  Section  5,  paragraph  5,  should  be  amended  to  make  it 
clear  that  findings  of  fact  must  be  based  exclusively  on 
the  evidence  at  the  hearings  and  on  matters  officially 
noticed  which  have  been  disclosed  to  the  parties. 

9.  Section  5,  paragraph  6,  should  provide  that  the  notice  of 
decision  should  include  a  reference  to  the  rights  of 
appeal  available  from  the  decision. 

10.  Where  powers  of  decision  are  being  exercised,  the  Act 
should  provide  an  express  right  of  counsel  to  examine 
and  cross-examine  witnesses  and  make  submissions. 
There  should  be  express  powers  to  grant  adjournments 
and  to  take  official  notice.  The  Act  should  provide  that 
hearings  are  to  be  in  public  unless  the  presiding  officer 
decides  that  there  is  good  reason  for  holding  a  private 
hearing. 

1 1 .  Where  powers  of  investigation  are  being  exercised,  the 
provisions  of  the  Public  Inquiries  Act  as  recommended 
in  Report  Number  1  should  apply. 


2096         The  Ontario  Securities  Commission 

12.  Sections  29  and  59  should  be  amended  to  provide  for  a 
right  of  appeal  from  decisions  under  section  59. 

13.  Where  possible  the  criteria  for  action  by  the  Commis- 
sion should  be  more  clearly  specified  than  by  a  mere 
statement  that  it  may  act  "where  in  its  opinion  such 
action  is  in  the  public  interest."  Where  criteria  have 
been  specified,  the  Court  of  Appeal  should  have  power 
to  set  aside  the  decision  where  on  the  record  the  action 
taken  by  the  Commission  is  not  warranted. 

Where  it  would  frustrate  the  scheme  of  the  Act  to  estab- 
lish criteria  for  action,  the  Court  of  Appeal  should  have 
power  to  set  aside  the  decision  where  there  is  no  reason- 
able evidence  to  support  the  opinion  of  the  Commission 
that  its  action  is  in  the  public  interest. 

14.  Standards  should  be  set  out  in  the  Act  for  the  exercise  of 
the  licensing  powers. 

15.  Conduct  which  may  give  rise  to  the  cancellation  or  sus- 
pension of  registration  should  be  specified  as  clearly  as 
possible  in  the  legislation. 

16.  Section  21(1)  and  (2)  should  be  amended  to  provide  that 
the  Commission's  power  to  conduct  an  investigation  be 
conditioned  on  the  approval  of  the  Minister.  All  investi- 
gations under  the  Act  should  be  subject  to  the  approval 
of  the  Minister  and  be  limited  to  matters  "expedient  for 
the  due  administration  of  the  Act." 

17.  The  Act  should  be  amended  to  provide  that  on  investi- 
gations, any  person  against  whom  specific  allegations  of 
misconduct  have  been  made,  has  a  right  to  be  examined 
by  his  own  counsel  before  he  is  examined  by  Commis- 
sion counsel. 

1 8.  Section  24  should  be  amended  to  prohibit  the  communi- 
cation of  information  obtained  by  the  Commission,  its 
officers,  servants  or  agents  in  the  exercise  of  their  powers 
under  the  Act  beyond  that  which  is  necessary  for  the  pur- 
poses of  the  Act  and  the  administration  of  justice. 

19.  Section  26  should  be  amended  to  make  it  clear  that  the 
powers  which  may  be  exercised  thereunder  may  be  exer- 
cised only  when  the  Commission  has  decided  to  order 


Chapter  126         2097 

an  immediate  investigation  or  to  make  "a  direction,  de- 
cision, order  or  ruling  suspending  or  cancelling"  a  regis- 
tration or  where  some  step  has  been  taken  to  institute 
criminal  proceedings  or  proceedings  in  respect  of  a  con- 
travention of  the  Act. 

20.  Section  59  should  be  amended  to  make  it  clear  that  an 
opportunity  to  be  heard  must  be  afforded  before  a  deci- 
sion can  be  made  under  the  section. 

21.  Section  89  of  the  Act  should  be  amended  to  provide  that 
the  application  for  an  exempting  order  should  be  made 
in  the  first  instance  to  the  Securities  Commission  with  a 
right  of  appeal  to  the  Court  of  Appeal. 

22.  Section  84(3)  of  the  Corporations  Act  should  be  amended 
to  provide  that  the  application  for  the  order  be  made  in 
the  first  instance  to  the  Securities  Commission  with  a 
right  of  appeal  to  the  Court  of  Appeal. 

23.  Where  an  exempting  order  is  made,  a  shareholder  should 
have  a  right  to  apply  to  the  Commission  for  reasons  for 
its  decision. 

24.  Section  139(2)  should  be  amended  to  provide  for  a  right 
to  a  hearing  before  the  powers  thereunder  are  exercised 
by  the  Commission. 

25.  Section  142(1)  should  be  amended  to  substitute  for  the 
consent  of  the  Minister  the  consent  of  the  Attorney 
General  to  bring  an  action,  or  the  section  should  be 
repealed. 

26.  Section  142(2)  should  be  repealed. 

27.  Sections  111(4)  and  137(1)  should  be  amended  to  delete 
the  requirements  for  consent  to  prosecute  by  the  Com- 
mission or  Minister.  The  consent  or  authority  should 
come  from  the  Attorney  General. 

28.  Sections  116  and  131  should  be  amended  to  provide  that, 

(1)  orders  thereunder  should  be  made  only  after  con- 
sideration of  the  public  interest; 

(2)  orders  made  thereunder  be  reported  to  the  Minister 
who  is  responsible  to  the  Legislature  for  the  administra- 
tion of  the  Act. 


CHAPTER  127 


The  Ontario  Telephone  Service 
Commission 


INTRODUCTION 

XHE  Ontario  Telephone  Senice  Commission  is  a  body 
corporate  organized  under  the  Telephone  Act.^  The  Com- 
mission has  jurisdiction  and  power  to  hear  and  determine 
"applications  made,  proceedings  instituted  and  matters 
brought  before  it"  under  the  Act.^  These  include  differences 
that  may  arise  between  two  or  more  telephone  systems  or 
municipalities  concerning  the  establishment,  operation  and 
maintenance  of  telephone  systems^  and  complaints  made  by 
individuals.*  The  Commission  in  the  exercise  of  its  powers 
has  all  the  powers  "that  may  be  conferred  upon  a  Commis- 
sioner under  The  Public  Inquiries  Act."^ 

INQUIRY  PROCEDURE 

"The  chairman  may  authorize  any  one  of  the  members 
of  the  Commission  to  report  to  the  Commission  upon  any 
question  or  matter  arising  in  connection  with  the  business  of 
the  Commission  and,  when  so  authorized  such  member  has  all 
the  powers  of  the  Commission  for  the  purpose  of  taking  evi- 
dence and  acquiring  information  for  the  purposes  of  the 
report.  .  .  ."^  The  Act  provides  in  such  cases  that  the  member 

^R.S.O.  I960,  c.  394,  s.  2(1). 

Uhid.,  s.  6(1). 

"Ibid.,  5.  n. 

*Ibid..  s.  14. 

^Ibid.,  s.  6(2). 

'Ibid.,  s.  7. 

2098 


Chapter  127         2099 

reports  to  the  Commission  and  upon  the  report  being  made 
it  may  be  adopted  as  the  order  of  the  Commission  or  otherwise 
as  the  Commission  deems  proper." 

The  procedure  provided  for  inquiry  and  report  by  a 
member  of  the  Commission  is  analogous  to  the  inquiry  sys- 
tem used  in  England  but  without  the  necessary  safeguards. 
In  Report  Number  1  we  discussed  the  inquiry  system  as 
applied  to  decisions  required  to  be  made  by  Ministers'^  and  to 
compulsory  purchase  procedure.^  Under  the  Telephone  Act 
the  power  of  final  decision  is  not  delegated  to  the  member 
of  the  Commission  authorized  "to  report".  The  power  of 
decision  is  reserved  to  the  Commission. 

Where  the  Commission  exercises  its  powers  to  authorize 
one  of  its  members  to  investigate  and  report  on  any  matter 
such  member  should  be  required  to  hold  a  hearing  at  which 
the  parties  affected  will  have  an  opportunity  to  make  oral  or 
written  representations.  The  report  should  be  made  avail- 
able to  the  respective  parties  and  any  party  who  has  appeared 
at  the  hearing  should  be  given  an  opportunity  to  make  repre- 
sentations to  the  Commission  with  respect  to  the  report  before 
it  comes  to  a  final  decision.  The  minimum  rules  of  procedure 
which  we  recommended  in  Report  Number  P°  should  apply 
to  the  proceedings  of  the  Commission  and  the  member  author- 
ized to  investigate  and  report. 

In  addition  to  the  delegation  of  its  powers  to  a  member 
of  the  Commission  to  inquire  and  report  the  Commission 
may  direct  any  person  to  examine  and  report  upon  the  con- 
struction, operation,  or  management  of  a  telephone  system. ^^ 
In  the  exercise  of  these  powers  the  person  directed  to  make 
the  examination  and  report  "may  exercise  any  of  the  powers 
set  out  in  section  52  of  the  Ontario  Municipal  Board  Act."^' 
The  powers  set  out  in  section  52  of  the  Ontario  Municipal 
Board  Act^^  include  ".  .  .  the  like  power  to  summon  witnesses 
and  enforce  their  attendance,  and  compel  them  to  give  evi- 
dence and  to  produce  books,  papers  or  things  that  they  are 

'Ibid. 

•p.  128fF.  supra. 

•p.  1005  supra. 
"p.  212fiE.  supra. 
"R.S.O.  1960,  c.  394,  s.  13(1). 
"Ibid.,  s.  13(2). 
"R.S.O.  1960,  c.  274. 


2100  The  Ontario  Telephone  Service  Commission 

required  to  produce,  as  is  vested  in  any  court  in  civil  cases." 
This  power  unquestionably  includes  the  power  to  commit 
for  contempt  of  the  orders  of  the  person  directed  to  make  the 
inquiry.  We  dealt  with  powers  such  as  this  in  Report  Num- 
ber 1^^  and  there  recommended  the  procedure  that  we  think 
should  be  provided— that  where  it  is  necessary  to  enforce 
orders  of  the  Commission  or  any  one  directed  by  it  to  examine 
and  report,  provision  should  be  made  for  an  application  to 
the  Supreme  Court  for  an  order  of  committal  and  that  the 
Public  Inquiries  Act  and  other  statutes  conferring  powers  of 
compulsion  should  be  ainended  accordingly. 

What  we  have  said  with  respect  to  the  right  to  be  heard 
where  a  hearing  is  conducted  by  a  member  of  the  Commis- 
sion applies  with  equal  force  to  an  inquiry  by  a  person 
directed  by  the  Commission  to  examine  and  report.  Before 
the  Commission  acts,  the  parties  affected  should  be  furnished 
with  a  copy  of  the  report  of  the  examining  officer  and  the 
Commission  should  give  them  a  right  to  be  heard  if  they  so 
desire. 

The  foregoing  recommendations  are  based  on  the  premise 
that  the  decisions  of  the  Commission  are  administrative  in 
their  nature,  i.e.  are  substantially  based  on  grounds  of 
policy.^^  If  such  decisions  are  of  a  judicial  nature  then  the 
employment  of  an  inquiry  procedure,  a  report  and  a  decision 
would  be  contrary  to  the  principle  that  he  who  decides  must 
hear  the  evidence.^® 

APPEALS 

Three  rights  of  appeal  are  provided  in  the  Act. 

Appeal  by  Way  of  Stated  Case 

'The  Commission  may,  of  its  own  motion  or  upon  the  appli- 
cation of  any  party  to  proceedings  before  the  Commission 
and  upon  such  security  being  given  as  it  directs,  state  a  case 
in  writing  for  the  opinion  of  the  Court  of  Appeal  upon  any 
question  that,  in  the  opinion  of  the  Commission,  is  a  question 
oflaw."!^ 


'*p.  44 Iff.  supra. 
"See  pp.  126-30  supra. 
'"See  p.  220  supra. 
"R.S.O.  1960,  c.  394,  s.  17(1). 


Chapter  127         2101 

Where  the  Commission  refuses  to  state  a  case  there  is  no 
right  given  to  the  applicant  to  apply  to  the  Court  of  Appeal 
for  an  order  directing  that  the  Commission  state  a  case  on  a 
question  of  law  as  there  is  under  the  Public  Intjuiries  Act.'*^ 
The  Commission  is  the  sole  judge  of  whether  a  question  is  a 
question  of  law  and  whether  a  case  should  be  stated.  While 
we  criticized  the  language  of  the  Public  Inquiries  Act  in 
Report  Number  1 ,  we  approved  of  the  principle  that  there 
should  be  a  right  to  apply  to  the  Court  of  Appeal  for  an  order 
directing  the  Commission  to  state  a  case  on  a  question  of 
law.^^ 

It  is  unusual  that  the  Commission  should  have  power  to 
order  the  applicant  for  a  stated  case  to  give  security.  In  other 
civil  matters  the  way  of  appeal  is  open  without  giving  secur- 
ity. A  fortiori,  it  should  be  open  without  giving  security 
^vhere  a  party  concerned  with  an  order  of  the  Commission 
raises  a  question  of  law  that  ought  to  be  settled  by  the  Court 
of  Appeal. 

Appeal  upon  Questions  of  Law  or  Jurisdiction 

"An  appeal  lies  from  the  Commission  to  the  Court  of  Appeal 
upon  any  question  of  jurisdiction  or  upon  any  question  of 
law,  but  no  such  appeal  lies  unless  leave  to  appeal  is  obtained 
from  the  court  ^vithin  one  month  of  the  making  of  the  order 
or  decision  sought  to  be  appealed  from  or  within  such  further 
time  as  the  court  under  the  special  circumstances  of  the  case 
allows  after  notice  to  the  opposite  party,  if  any,  stating  the 
grounds  of  appeal."-" 

It  is  not  to  be  overlooked  that  in  this  case  there  is  no 
power  to  order  security  and  we  think  this  is  as  it  should  be. 

Appeal  to  the  Lieutenant  Governor  in  Council 

"The  Lieutenant  Governor  in  Council  may  at  any  time  upon 
petition  of  any  party,  all  parties  first  having  been  heard,  vary 
or  rescind  any  order  or  decision  of  the  Commission  whether 
the  order  or  decision  was  made  i?iter  partes  or  othenvise,  and 
any  order  that  the  Lieutenant  Governor  in  Council  makes 

"R.S.O.  1960,  c.  323,  s.  5. 

"p.  453ff.  supra. 

"R.S.O.  1960,  c.  394,  s.  19(1). 


2102         The  Ontario  Telephone  Service  Commission 

with  respect  thereto  is  binding  upon  the  Commission  and  all 
parties."-^ 

The  right  of  appeal  to  the  Lieutenant  Governor  in 
Council  is  similar  to  the  right  of  appeal  given  under  the 
Ontario  Municipal  Board  Act--  and  under  the  Ontario 
Energy  Board  Act.^^  These  appeal  provisions  could  produce 
a  strange  result.  On  appeal  to  the  Court  of  Appeal  the  Court 
may  determine  a  question  of  jurisdiction  or  law  and  specif)^ 
"its  opinion  to  the  Commission  and  the  Commission  shall 
make  an  order  in  accordance  with  such  opinion."^*  The  Lieu- 
tenant Governor  in  Council  may  vary  or  rescind  the  order  of 
the  Commission,  i.e.  the  Lieutenant  Governor  in  Council  may 
overrule  the  Court  of  Appeal  notwithstanding  its  interpre- 
tation of  the  law  and  the  statute  conferring  powers  on  the 
Commission.  This  is  inconsistent  with  the  recommendations 
made  in  Report  Number  1  and,  particularly,  wdth  the  prin- 
ciple that  an  appeal  should  not  lie  from  the  decision  of  a 
judicial  tribunal  to  the  Lieutenant  Governor  in  Council  or  to 
a  Minister.^^  The  power  of  the  Lieutenant  Governor  in 
Council  to  set  aside  an  order  of  the  Commission  should  not 
apply  to  questions  of  law\ 

SUBORDINATE  LEGISLATIVE  POWER 

Subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council,  the  Commission  may  make  regulations  concerning  a 
wide  area  of  subjects.-^   However,  the  Act  provides, 

'The  Regulations  Act  does  not  apply  to  any  order,  regula- 
tion or  by-law  made  under  the  authority  of  this  Act."^'^ 

It  is  difficult  to  see  w^hy  the  laws  made  by  the  Commission 
should  not  be  subject  to  the  Regulations  Act,  For  example, 
a  regulation  passed  on  the  29th  of  October,  1962,  effective 
November  8,  1962,  dealing  with  the  construction  of  telephone 

'Ubid.,  s.  18. 

"R.S.O.  1960,  c.  274,  s.  94,  as  re-enacted  by  Ont.  1961-62  c.  96,  s.  3(1)  and 

amended  by  Ont.  1965,  c.  89,  s.  2. 
"Ont.  1964,  c.  74,  s.  33. 
"R.S.O.  1960,  c.  394,  s.  19(3). 
"pp.  233-34  supra. 
"R.S.O.  1960,  c.  394,  s.  26. 
"7&jd.,  s.  22. 


Chapter  127         210:5 

lines  contains  certain  requirements  and  prohibitions.  These 
are  part  of  the  laws  of  the  Province.  Ihey  are  nowhere  to  be 
found  in  the  statutes  or  in  the  published  regulations  passed 
under  the  statutes.  It  is  quite  unnecessary  that  many  specific 
orders  of  the  Commission  dealing  with  matters  coming  before 
it  for  decision  on  a  day  to  day  basis  should  be  published  as 
regulations  but  general  regulations  that  the  Commission  is 
empowered  to  make  in  exercising  its  subordinate  legislative 
powers  should  come  under  the  Regulations  Act  and  be 
published. 

PENALTIES 

Penalties  are  provided  for  failure  to  obey  orders  of  the 
Commission. ^^  Where  an  order  of  the  Commission  is  not 
published,  those  required  to  act  inider  it  may  not  know  of  its 
existence  and  still  may  be  subject  to  penalties.  In  any  case,  no 
one  should  be  subject  to  a  penalty  unless  he  fails  to  do  or 
perform  an  act  required  of  him  under  an  order  of  the  Com- 
mission of  which  he  has  been  notified. 

RECOMMENDATIONS 

1.  Where  a  member  of  the  Commission  authorized  to  re- 
port to  the  Commission  exercises  the  powers  of  investi- 
gation conferred  under  section  7  he  should  be  required 
to  notify  the  parties  affected  and  give  them  an  oppor- 
tunity to  be  heard. 

2.  Where  a  member  of  the  Commission  makes  a  report  to 
the  Commission  under  the  provisions  of  section  7  a  copy 
of  the  report  should  be  furnished  to  any  party  who  has 
made  representations  to  the  member  conducting  the 
investigation  and  the  Commission  should  give  any  such 
party  an  opportunity  to  be  heard  before  coming  to  a 
final  decision. 

3.  The  minimum  rules  of  procedure  recommended  in 
Report  Number  1  should  apply  to  those  investigations 
conducted  under  the  authority  of  the  Commission  which 
precede  a  decision  affecting  rights,  and  a  code  of  rules  of 
procedure  should  be  formulated. 

^^Ibid.,  s.  83. 


2104         The  Ontario  Telephone  Seiuice  Commission 

4.  Where  an  inquiry  is  conducted  under  section  13  the 
parties  affected  should  have  an  opportunity  to  be  heard 
before  any  report  is  made  and  a  copy  of  the  report  should 
be  furnished  to  parties  affected  if  required  by  them. 

5.  Before  the  Commission  makes  a  decision  with  respect  to 
a  report  made  under  section  13  the  parties  affected 
should  have  an  opportunity  to  be  heard. 

6.  The  Commission  should  not  have  power  to  commit  for 
contempt. 

7.  The  provision  requiring  the  applicant  for  a  stated  case  to 
give  security  for  costs  should  be  repealed. 

8.  The  Court  of  Appeal  should  have  power  to  direct  the 
Commission  to  state  a  case  where  the  Commission  refuses 
to  do  so. 

9.  The  right  of  appeal  to  the  Lieutenant  Go\'ernor  in 
Council  should  not  apply  to  questions  of  law. 

10.  Regulations  and  orders  in  the  nature  of  regulations  made 
by  the  Commission  should  not  be  exempted  from  the 
Regulations  Act. 

11.  No  one  should  be  subject  to  a  penalty  unless  he  fails  to 
do  something  required  of  him  under  an  order  of  the 
Commission  of  which  he  has  been  notified. 


CHAPTER  128 

The  Ontario  Water  Resources 
Commission 

INTRODUCTION 

Ihe  Ontario  Water  Resources  Commission,  to  which 
we  shall  hereafter  in  this  Chapter  refer  as  "the  Commission" 
unless  the  context  otherwise  requires,  was  orginally  estab- 
lished in  1956  under  the  provisions  of  the  Ontario  Water 
Resources  Commission  Act,  1956.^  The  Commission  was 
constituted  a  body  corporate  without  share  capital  composed 
of  no  fewer  than  three  and  not  more  than  five  persons 
appointed  by  the  Lieutenant  Governor  in  Council. - 

The  functions  and  powers  of  the  Commission  were 
stated  to  be, 

"(a)   to  develop  and  make  available  supplies  of  water; 

(b)  to  construct  and  operate  systems  for  the  supply,  purifi- 
cation and  distribution  of  water  and  for  the  disposal  of 
sewage; 

(c)  to  enter  into  agreements  with  respect  to  the  supply  of 
water  or  the  disposal  of  sewage; 

(d)  to  conduct  research  programmes  and  to  prepare  statis- 
tics for  its  purposes; 

(e)  to  perform  such  other  functions  or  discharge  such  other 
duties  as  may  be  assigned  to  it  from  time  to  time  by  the 
Lieutenant  Governor  in  Council."^ 

Wide  powers  were  conferred  on  the  Commission  to  enter  into 
agreements  and  acquire  land  without  consent  of  the  owner. 

'Ont.  1956,  c.  62. 
'Ibid.,  s.  3. 
"Ibid.,  s.  10. 

2105 


2106         The  Ontario  Water  Resources  Commission 

According  to  the  original  concept,  the  Commission  was 
a  Crown  corporation  established  to  enter  into  the  business  of 
supplying  water  and  making  provision  for  the  disposal  of 
sewage. 

It  was  required  to  report  annually  to  the  Minister 
designated  by  the  Executive  Council  to  administer  the  Act 
and  a  copy  of  its  report  was  required  to  be  laid  before  the 
Legislative  Assembly. 

The  1956  Act  was  repealed  in  1957"*  by  an  Act  which, 
with  some  amendments,  is  substantially  the  same  as  the 
present  statute  law  governing  the  Commission.^  The  Com- 
mission was  reconstituted  with  much  wider  powers  which 
give  it  very  complex  characteristics.  It  continues  to  exercise 
the  powers  of  a  Crown  corporation  providing  water  supply 
and  means  for  the  disposal  of  sewage.  But  very  extensive 
administrative  and  judicial  powers  were  added  to  those 
formerly  conferred  on  it.  It  was  made  the  recipient  of  a  con- 
glomerate of  powers  of  such  a  nature  that  the  question  arises 
as  to  whether  such  powers  should  be  exercised  by  a  body 
corporate  that  is  engaged  in  the  business  of  providing  water 
supply  and  sewage  disposal.  As  we  shall  see  later,  a  conflict  of 
interest  may  arise  in  the  exercise  of  the  Commission's  adminis- 
trative and  judicial  powers. 

GENERAL  POWERS  OF  THE  COMMISSION 

The  present  functions  and  powers  of  the  Commission 
are  stated  to  be, 

"(a)  to  control  and  regulate  the  collection,  production,  treat- 
ment, storage,  transmission,  distribution  and  use  of 
water  for  public  purposes  and  to  make  orders  with  re- 
spect thereto; 

(b)  to  construct,  acquire,  provide,  operate  and  maintain 
water  works  and  to  develop  and  make  available  supplies 
of  water  to  municipalities  and  persons; 

(c)  to  construct,  acquire,  provide,  operate  and  maintain 
sewage  works  and  to  receive,  treat  and  dispose  of  sew- 
age delivered  by  municipalities  and  persons; 

*Ont.  1957,  c.  88,  s.  49. 

"R.S.O.  1960,  c.  281  as  amended  by  Ont.  1960-61,  c.  71,  Ont.  1961-62,  c.  99, 
Ont.  1962-63,  c.  99,  Ont.  1964,  c.  86,  Ont.  1965,  c.  91  and  Ont.  1966,  c.  108. 


Chapter  12S         2107 

(d)  to  make  agreements  with  any  one  or  more  municipali- 
ties or  persons  with  respect  to  a  supply  of  water  or  the 
reception,  treatment  and  disposal  of  sewage; 

(e)  to  conduct  research  programmes  and  to  prepare  statis- 
tics for  its  purposes;  and 

(f)  to  perform  such  functions  or  discharge  such  duties  as 
may  be  assigned  to  it  from  time  to  time  by  the  Lieuten- 
ant Governor  in  Council."* 

There  are  additional  powers  conferred  on  the  Commis- 
sion, some  of  which  we  shall  deal  with  specifically.  It  is  to  be 
observed  that  the  legislative  scheme  respecting  the  purpose 
of  the  Commission  is  vei^  different  from  the  original  concept. 
Under  the  present  legislation,  the  power  to  control  and  regu- 
late the  collection,  production,  storage,  transmission,  distribu- 
tion and  use  of  water  for  public  purposes  have  been  added  to 
the  original  basic  purpose  to  develop  and  make  available 
supplies  of  water  and  means  of  disposal  of  sewage.  These 
powers  are,  for  the  most  part,  in  addition  to  those  of  a  business 
nature.  They  are,  generally,  administrative  in  character  and 
are  exercised,  in  the  main,  without  that  degree  of  political 
control  that  is  consistent  with  the  recommendations  made  in 
Report  Number  1.^ 

We  shall  deal  first  with  the  business  functions  of  the 
Commission,   as   distinct   from   its   decision-making   powers. 

BUSINESS  FUNCTIONS 

"The  Commission  may  for  its  purposes  exercise  any  or  all  of 
the  powers  that  are  conferred  by  any  general  Act  upon  a 
municipality  respecting  the  establishment,  construction,  main- 
tenance or  operation  of  water  works  or  sewage  works. "^ 

These  are  very  broad  powers  which  are  intended  to  be 
exercised  for  the  purpose  of  carrying  on  the  business  of 
supplying  water  to  municipalities  and  providing  for  the 
disposal  of  sewage. 

"The  Commission  and  its  employees  and  agents  may  at  any 
time  for  its  purposes,  without  consent  and  without  compen- 
sation, enter  into  the  lands  or  buildings  of  the  Province  or 
of  any  municipality  or  of  any  person,  or  into  any  highway  or 


•R.S.O.  1960,  c.  281,  s.  16(1)  as  amended  by  Ont.  1962-63,  c.  99,  s.  2. 

''See  pp.  126-130  and  234  supra. 

"R.S.O.  1960,  c.  281,  s.  17  as  amended  by  Ont.  1961-62,  c.  99,  s.  3. 


2108         The  Ontario  Water  Resources  Commission 

road  under  the  jurisdiction  and  control  of  any  public  author- 
ity, or  into  any  boat  or  ship  to  which  the  regulations  under 
clause  ha  of  subsection  1  of  section  47  apply,  and  may  make 
such  surveys,  examinations,  investigations,  inspections  or 
other  arrangements  as  it  deems  necessary,  and,  except  as  pro- 
vided in  subsection  3,  the  Commission  is  liable  for  any  dam- 
age occasioned  thereby."^ 

Subsection  3  provides: 

"Lands,  buildings,  highways,  or  roads  disturbed  by  the  exer- 
cise of  any  of  the  powers  mentioned  in  subsection  1  or  2  shall 
be  restored  to  their  original  condition  without  unnecessary 
delay."io 

The  words  "and,  except  as  provided  in  subsection  3,  the 
Commission  is  liable  for  any  damage  occasioned  thereby" 
w^hich  were  added  by  an  amendment  in  1966^^  are  most 
difficult  to  construe. 

The  Commission  and  its  employees  are  given  power  of 
entry  to  the  lands  and  buildings  of  any  person  and  may  do 
certain  things  "without  compensation."  But  it  is  liable  for 
damages  except  where  the  lands  and  buildings,  etc.  disturbed 
by  the  exercise  of  the  powers  "shall  be  restored  to  their 
original  condition."  The  exception  is  not  an  exception  from 
liability  for  damages  but  a  duty  to  do  something  resulting  in 
specific  restitution.  It  should  be  made  clear  that  the  Com- 
mission is  liable  to  restore  the  lands,  buildings,  etc.  that  may 
have  been  disturbed  and  the  Commission  should  also  be  liable 
to  pay  compensation  for  any  damage  to  property  which  cannot 
be  repaired. 

RIGHT  TO  ACQUIRE  LAND 

"The  Commission  may  for  its  purposes  acquire  by  purchase, 
lease  or  otherwise  or,  without  the  consent  of  the  owner,  enter 
upon,  take  possession  of,  expropriate  and  use  land  ...  as  may 
be  deemed  necessary  for  its  purposes,  and,  upon  such  terms 
as  it  deems  proper,  may  sell,  lease  or  dispose  of  any  land  that 
in  its  opinion  is  not  necessary  for  its  purposes. "^^ 


""Ibid.,  s.  18(1)  as  re-enacted  by  Ont.  1966,  c.  108,  s.  1. 

Vbtd.,  s.  18(3). 

^Ont.  1966,  c.  108,  s.  1. 

^'R.S.O.  1960,  c.  281,  s.  19(1). 


Chapter  1 2S         2109 

Several  provisions  in  this  subsection  conflict  with  the 
Expropriations  Act,  1968-69.^^  Notwithstanding  the  para- 
mountcy  of  that  Act,  the  conflicting  provisions  should  be 
repealed. 

RIGHT  TO  USE  WATER 

"The  Commission  .  .  .  may  use  the  waters  of  any  lake, 
river,  pond,  spring  or  stream  as  may  be  deemed  necessary  for 
its  purposes. "^^  We  consider  this  provision  quite  apart  and 
distinct  from  the  powers  conferred  on  the  Commission  to 
supervise  and  control  surface  and  ground  waters.  These  we 
shall  discuss  later.  The  Commission  has  power  to  make  use 
of  any  lake,  river,  pond,  spring  or  stream  as  may  be  deemed 
necessary  for  its  purposes.  This  is  an  arbitrary  power  of  con- 
fiscation of  the  rights  of  riparian  owners.  In  the  first  place, 
the  test  is  not  "as  may  be  necessary  for  its  purposes"  but  "as 
may  be  deemed  necessai-y  for  its  purposes." 

Where  land  is  taken  without  the  owner's  consent  there 
are  all  the  safeguards  of  the  Expropriations  Act,  1968-69  but 
with  respect  to  the  power  to  use  water  there  are  no  safeguards 
and  no  rights  to  compensation.  This  is  unconscionable. 
Riparian  rights  are  very  important  rights  to  those  who  enjoy 
them  and  they  are  rights  that  the  common  law  has  jealously 
guarded.  The  right  is  to  have  the  natural  flow  of  water  in  its 
natural  state. ^^ 

Provision  should  be  made  for  compensation  for  loss  suf- 
fered by  riparian  owners  arising  out  of  the  exercise  of  the 
power  conferred  on  the  Commission  to  use  waters. 

With  respect  to  real  or  personal  property  acquired  for 
the  purposes  of  a  project  or  for  the  provision  of  water  or  sew- 
age service  the  provisions  of  the  Public  Works  Act  do  not 
apply.^^  This  places  the  Commission  in  a  position  superior, 
in  some  respects,  to  the  Crown. 

"Ont.  1968-69,  c.  36. 

"R.S.O.  1960,  c.  281,  s.  19(1). 

^'McKie  V.  The  K.V.P.  Co.  Ltd.,  [1948]  O.R.  398. 

"R.S.O.  1960,  c.  281,  s.  19a  as  enacted  by  Ont.  1966,  c.  108,  s.  2. 


2110         The  Ontario  Water  Resources  Conunission 

THE  SUPERVISION  OF  ALL  WATERS: 
CONFLICTS  WITH  OTHER  ACTS 

The  Commission  has  power  of  supervision  ot  all  surface 
waters  and  all  ground  waters  used  as  a  source  of  water 
supply. ^'^  This  power  is  limited  only  by  the  interpretation 
that  may  be  placed  on  the  word  "supervision",  which  is  not 
defined  in  the  Act.  When  considered  with  the  power  to  "use 
the  waters  of  any  lake,  river,  pond,  spring  or  stream"  there  is 
considerable  conflict  with  provisions  in  other  statutes. 

Under  the  Conservation  Authorities  Act,  1968^^  a  con- 
servation authority  has  power  to  determine  a  program 
whereby  the  natural  resources  of  the  watershed  may  be  con- 
served, restored,  developed  and  managed  and  to  control  the 
flow  of  surface  waters  in  order  to  prevent  floods  or  pollution 
or  to  reduce  the  adverse  effects  thereof  and  "to  alter  the 
course  of  any  river,  canal,  brook,  stream  or  watercourse  and 
divert  or  alter,  as  well  temporarily  as  permanently,  the  course 
of  any  river,  stream,  road,  street  or  way,  .  .  ."^^. 

Powers  are  given  to  an  authority,  subject  to  the  approval 
of  the  Lieutenant  Governor  in  Council,  to  make  regulations 
applicable  to  the  area  under  its  jurisdiction  restricting  and 
regulating  the  use  of  water  in  or  from  rivers,  streams,  inland 
lakes,  ponds,  swamps  and  natural  or  artificially  constructed 
depressions  in  rivers  or  streams  and  restricting  and  regulating 
the  straightening,  changing,  diverting  or  interfering  in  any 
way  with  the  existing  channel  of  a  river,  creek,  stream  or 
watercourse, ^° 

However,  it  is  provided  that  no  such  regulation  shall 
"interfere  with  any  rights  or  powers  ...  of  any  commission 
that  is  performing  its  functions  for  or  on  behalf  of  the  Gov- 
ernment of  Ontario. ^^ 

Under  the  Lakes  and  Rivers  Improvement  Act"^  the 
Lieutenant  Governor  in  Council  may  make  regulations  re- 
specting generally  the  use  under  this  Act  of  lakes  and  rivers 

^'Ibid.,  s.  26(1). 
"Ont.  1968,  c.  15. 
^"Ibid.,  ss.  18,  19(k)(l). 
'"Ibid.,  s.  26(l)(a)(b). 
'^Ibid.,  s.  26(2)(c). 
"R.S.O.  1960,  c.  203. 


Chapter  12S         2111 

and  waters  therein.-^  The  Act  provides  that  a  dam  shall  not 
be  constructed  on  any  lake  or  river  unless  the  location  and 
plan  and  specifications  thereof  have  been  approved  by  the 
Minister  of  Lands  and  Forests.-^ 

Where  the  Lieutenant  Governor  in  Council  has  declared 
that  any  lake  or  river  is  subject  to  Part  II  of  the  Act  all  ques- 
tions arising  in  relation  to  the  lake  or  river, 

"(a)   as  to  the  right  to  construct  or  use  works  or  improve- 
ments thereon; 

(b)  as  to  the  respective  rights  of  persons  using  the  lake  or 
river  for  the  purpose  of  floating  timber  thereon; 

(c)  as  to  the  right  to  interfere  with,  alter  or  obstruct  in  any 
manner  the  flow  of  the  water  in  the  lake  or  river, 

shall  be  determined  by  the  Minister  .  .  ."^^ 

Under  the  Municipal  Act-^  councils  of  municipalities 
may  pass  by-laws  for  the  purpose  of  preventing  damage  to  any 
highway  or  bridge  or  to  any  property  within  the  municipality 
by  floods  arising  from  the  overflowing  or  damming  back  of  a 
river,  stream  or  creek  flowing  through  or  in  the  neighbour- 
hood of  the  municipality  and  for  deepening,  widening, 
straightening  or  otherwise  improving  a  river,  stream  or  creek 
for  such  purpose.-'^ 

Under  the  Power  Commission  Act-^  the  Hydro  Electric 
Power  Commission,  with  the  authorization  of  the  Lieutenant 
Governor  in  Council,  may  temporarily  or  permanently  divert 
or  alter  the  boundaries  or  course  of  any  body  of  water.^^ 
Under  the  Public  Utilities  Act^"  the  corporation  of  a  local 
municipality  may  expropriate  the  right  to  divert^^  waters. 
Under  the  Water  Powers  Regulation  Act,^^  where  a  right  to 
develop  or  generate  power  is  enjoyed  or  where  there  is  a  right 
of  diversion  or  use  of  water  defined  wholly  or  in  part  by  the 
character,  location  or  dimensions  of  works,  an  inspector  may 
fix  in  terms  of  cubic  feet  per  second  the  amount  of  water  that 

'^Ibid.,  s.  2(l)(b). 

"/fczrf.,  s.  9(1)  as  re-enacted  by  Ont.  1962-63,  c.  71,  s.  1. 

'^Ihid.,  s.  24(1). 

"R.S.O.  1960,  c.  249. 

''Ibid.,  s.  377,  para.  16. 

"R.S.O.  1960,  c.  300. 

"/&irf.,  s.  24. 

'°R.S.O.  1960,  c.  335. 

'^Ibid.,  s.  2(1). 

""R.S.O.  1960,  c.  426. 


21)2         The  Ontario  Water  Resources  Commission 

it  is  necessary  to  use  in  order  to  develop  or  generate  the  relevant 
power  or  exercise  the  right. ^^  The  Lieutenant  Governor  in 
Council  may  limit,  define  or  restrict  the  rights  conferred  upon 
the  owner  of  a  water  power.^^ 

We  have  made  reference  to  the  foregoing  statutes  merely 
as  examples  of  conflict  or  potential  conflict.  Many  others  no 
doubt  exist. 

Section  16  of  the  Ontario  Water  Resources  Commission 
Act,  which  we  have  already  quoted,  contains  the  introductory 
words,  "Notwithstanding  any  other  Act,  it  is  the  function  of 
the  Commission  and  it  has  power,  .  .  .".  These  introductory 
words  apply  to  the  po^vers  set  out  in  that  section  but  not  to 
other  powers  conferred  on  the  Commission  under  other  sec- 
tions. It  is  by  no  means  clear  that  the  powers  conferred  on 
the  Commission  "to  control  and  regulate  the  .  .  .  distribution 
and  use  of  water  for  public  purposes  and  to  make  orders  with 
respect  thereto"  were  intended  to  give  the  Commission  para- 
mount power  over  the  use  of  all  waters  irrespective  of 
whether,  for  example,  the  power  resources  of  the  Hydro- 
Electric  Power  Commission  would  be  affected  thereby.  If  the 
introductory  words  to  section  16  are  intended  to  give  the 
Commission  paramount  control  over  waters  this  curious  re- 
sult would  follow.  Its  powers  of  control  would  prevail  over 
other  powers  conferred  under  statutes  passed  prior  to  1957 
but  not  powers  conferred  under  statutes  passed  thereafter— 
for  example,  the  Consen^ation  Authorities  Act,  1968.^^ 

We  recommend  that  a  thorough  review  of  all  provincial 
legislation  respecting  the  use  of  water  should  be  conducted 
with  a  view  to  (a)  determining  a  coherent  policy  on  this  sub- 
ject and,  (b)  removing  conflicting  statutory  provisions  relating 
thereto. 

THE  PERMISSION  TO  POLLUTE 

The  Commission  has  wide  powers  designed  for  the  pro- 
tection against  pollution  of  water  supplies  but,  at  the  same 
time,  it  exercises  equally  wide  powers,  or  wider  powers,  to 
permit  pollution. 

^Vfetd.,  s.  7. 

'"'Ibid.,  s.  10(1). 

*=See  Ellen  Street  Estates  v.  Minister  of  Health,  [1934]  1  K.B.  590. 


Chapter  1 2S         2113 

"Every  municipality  or  person  that  discharges  or  deposits  or 
causes  or  permits  the  discharge  or  deposit  of  any  material  of 
any  kind  into  or  in  any  well,  lake,  river,  pond,  spring,  stream, 
reservoir  or  other  water  or  watercourse  or  on  any  shore  or 
bank  thereof  or  into  or  in  any  place  that  may  impair  the 
quality  of  the  water  of  any  well,  lake,  river,  pond,  spring, 
stream,  reservoir  or  other  water  or  watercourse  is  guilty  of 
an  offence  and  on  summary  conviction  is  liable  to  a  fine  of 
not  more  than  $1,000  or  to  imprisonment  for  a  term  of  not 
more  than  one  year,  or  to  both."^'' 

These  penal  provisions  are  clear  and  unambiguous  and  there 
are  no  exceptions.   However,  the  Act  goes  on  to  provide: 

"The  discharge  into  any  lake,  river,  stream  or  other  water  or 
w^atercourse  of  selvage  from  sewage  works  that  have  been 
constructed  and  are  operated  in  accordance  Avith  the  approval 
of  the  Department  of  Health  or  the  Commission  or  in  con- 
formity with  any  order  of  the  [Ontario  Mimicipal]  Board  is 
not  a  contravention  of  subsection  1."^'' 

The  result  is  that  the  Department  of  Health,  the  Commission 
or  the  Ontario  Municipal  Board  may  give  "approval"  which 
has  the  effect  of  exempting  the  person  obtaining  it  from  the 
penal  consequences  of  the  Act. 

This  legislation  may  well  be  necessary  and  unavoidable 
but  we  are  here  particularly  concerned  with  the  powers  of 
the  Commission  to  grant  an  approval.  There  are  no  pro- 
cedural provisions  contained  in  the  Act. 

The  penal  provisions  are  for  the  benefit  of  users  of  the 
water,  but  notwithstanding  this,  an  approval  may  be  given 
without  any  publicity  and  without  any  opportunity  for  those 
affected  to  be  heard.  Take,  for  example,  the  water  of  a  well 
or  a  pond.  It  is  difficult  to  understand  w^hy  any  approving 
authority  should  have  powxr  to  grant  an  approval  of  a  dis- 
charge into  the  well  or  pond  "which  may  impair  the  quality 
of  the  water"  so  as  to  escape  the  penalties  provided  by  the 
Act.  The  least  one  would  expect  would  be  that  a  person  who 
W'ould  be  affected  by  the  approval  granted  should  have  an 
opportunity  to  be  heard  before  a  decision  is  made. 

A  person  who  would  be  affected  by  an  approval  or  order 
permitting  the  discharge  of  sewage  into  a  lake,  river,  stream 

"R.S.O.  I960,  c.  281,  s.  27(1)  as  re-enacted  by  Ont.  1961-62,  c.  99,  s.  5. 
"Ibid.,  s.  27(2). 


2114  The  Ontario  Water  Resources  Commission 

or  other  watercourse  granted  under  section  27(2)  should  have 
an  opportunity  to  be  heard  before  such  order  is  made. 

"No  person  shall  add  any  substance  to  the  water  of  any  well, 
lake,  river,  pond,  spring,  stream,  reservoir  or  other  water  or 
Avatercourse  for  the  purpose  of  killing  or  affecting  plants, 
snails,  insects,  fish  or  other  living  matter  or  thing  therein 
^\ithout  a  permit  issued  by  the  Commission. "^^ 

This  provision  "does  not  apply  to  any  person  or  to  sub- 
stances or  any  quantity  or  concentration  thereof  exempted 
...  by  the  regulations  made  under  this  Act."^^ 

"The  Commission  may  in  its  discretion  issue,  refuse  to  issue 
or  cancel  a  permit,  may  impose  such  terms  and  conditions  in 
issuing  a  permit  as  it  deems  proper,  and  may  alter  the  terms 
and  conditions  of  a  permit  after  it  is  issued. "^"^ 

It  is  made  an  offence  to  contravene  these  provisions  or 
any  of  the  terms  and  conditions  of  a  permit."*^  The  result  is 
that  regulations  may  permit  acts  forbidden  by  the  statute 
except  under  a  permit  and  the  Commission  may  grant  a 
permit  to  do  those  things  which  would  otherwise  be  pro- 
hibited. 

There  are  no  standards  laid  down  to  indicate  for  w^hat 
purpose  a  regulation  may  be  passed,  nor  when  a  permit 
should  or  should  not  be  granted.  This  is  in  the  discretion  of 
the  Commission  and  the  conditions  that  may  be  imposed  are 
as  the  Commission  may  "deem  proper".  The  powers  of  can- 
cellation are  likewise  in  the  discretion  of  the  Commission. 

There  is  no  right  of  appeal  from  a  refusal  to  grant  a 
permit  and  no  right  of  appeal  from  a  cancellation  of  a  permit 
or  the  terms  or  conditions  imposed  after  a  permit  has  been 
granted. 

There  are  no  procedural  provisions  controlling  the  exer- 
cise of  the  powers  of  the  Commission  in  this  regard.  Those 
for  whose  benefit  prohibitions  have  been  provided  are  not 
given  any  means  by  which  they  can  be  heard  or  any  right 
of  appeal. 

"Ubid.,  s.  28b(l),  as  enacted  bv  Ont.  1961-62,  c.  99,  s.  7. 

''"Ibid.,  s.  28b(2),  as  enacted  bv  Ont.  1961-62,  c.  99,  s.  7. 

*V6td.,  s.  28b(3),  as  enacted  by  Ont.  1961-62,  c.  99,  s.  7.  Italics  added. 

"/fold.,  s.  28b(4).  as  enacted  by  Ont.  1961-62,  c.  99,  s.  7. 


Chapter  128         2115 

THE  DEFINITION  OF  SOURCES  OF 
PUBLIC  WATER  SUPPLY 

The  Commission  may  define  an  area  that  includes  a 
source  of  public  water  supply  wherein  no  person  shall  swim 
etc.  When  an  area  has  been  so  defined  the  municipality  or 
person  who  has  a  right  to  use  the  water  from  such  source  for 
the  purpose  of  a  public  water  supply  "shall  give  notice  of  the 
area  so  defined  by  publication,  posting  or  otherwise  as  the 
Commission  deems  necessary  for  the  protection  of  the  source 
of  public  water  supply."^-  Penal  consequences  follow  under 
the  Act  for  any  contravention  of  the  terms  of  a  definition 
respecting  the  use  of  water.  Publication  of  the  notice  of  the 
area  so  defined  should  be  mandatory.  It  should  not  be  an 
alternative  to  publication  of  notice  to  have  it  given  "other- 
wise as  the  Commission  deems  necessary."  The  definition 
should  be  by  way  of  a  regulation  approved  by  the  Lieutenant 
Governor  in  Council  so  that  those  within  the  area  may  know 
what  they  are  permitted  to  do  with  water  on  land  that  they 
own  and  provision  should  be  made  that  they  be  furnished 
with  a  copy  of  the  regulation. 

CONTROL  OF  WATER  SUPPLY 

Generally,  and  without  discussing  the  detailed  excep- 
tions, no  person  shall  take  more  than  a  total  of  10,000  gallons 
of  water  in  a  day  without  a  permit  from  the  Commission. ^^ 

"The  Commission  may  in  its  discretion  issue,  refuse  to  issue 
or  cancel  a  permit,  may  impose  such  terms  and  conditions  in 
issuing  a  permit  as  it  deems  proper  and  may  alter  the  terms 
and  conditions  of  a  permit  after  it  is  issued."^* 

This  is  a  discretionary  power  conferred  on  the  Commission 
to  make  exemptions  to  the  scheme  of  the  statute.  We  deal 
first  with  the  requirement  for  a  permit.  The  Act  does  not 
purport  to  make  it  an  offence  to  take  an  excessive  amoimt  of 
water  in  certain  conditions  and  it  would  not  be  practical  for 

"/b/d.,  s.  28(1)  as  re-enacted  by  Ont.  1962-63,  c.  99,  s.  3  and  amended  by  Ont. 

1964,  c.  86,  s.  4(1). 
"/6iU,  s.  28a(2)  as  enacted  by  Ont.  1960-61,  c.  71,  s.  3.  and  amended  bv  Ont. 

1961-62,  c.  99,  s.  6(1)  and  Ont.  1964,  c.  86,  s.  5(1). 
**Ibid.,  s.  28a(4),  as  enacted  by  Ont.  1960-61,  c.  71,  s.  3. 


2116  Tlie  Ontario  Water  Resources  Commission 

it  to  do  so.  The  offence  is  taking  it  without  a  permit.  The 
obvious  purpose  of  these  provisions  is  to  provide  safeguards 
against  the  waste  of  water  in  critical  areas.  But  no  standards 
are  laid  down  for  the  issue  of  permits,  not  even  "where  in  the 
opinion  of  the  Commission  it  is  necessary  to  conserve  the 
water  supply  in  a  certain  area."  The  Commission  may  dis- 
pense or  withhold  permits  and  impose  terms  and  conditions 
"in  its  discretion".  There  are  no  rights  of  appeal  given  to  the 
applicants,  nor  to  those  who  may  be  interested  in  the  conser- 
A'ation  of  the  water  supply. 

The  powers  with  respect  to  the  cancellation  of  permits 
or  the  alteration  of  their  terms  or  conditions  are  equally  arbi- 
trary and  possibly  more  so.  There  is  no  provision  that  the 
holder  of  a  permit  shall  have  notice  of  an  intention  to  cancel 
or  alter  it,  nor  for  a  hearing  and  there  is  no  right  of  appeal. 

Where  by  means  of  a  hole  in  the  ground  or  an  excavation 
made  for  any  purpose  other  than  the  taking  of  water,  leakage 
is  caused  w^hich  "in  the  opinion  of  the  Commission"  inter- 
feres with  any  public  or  private  interest  in  any  water,  the 
Commission  may  by  notice  require  the  responsible  person  or 
the  owner  of  the  land  in  question  to  "stop  or  regulate  such 
flowing,  leaking,  diversion  or  release  of  water  in  such  manner 
and  within  such  time  as  the  Commission  directs,  or  require 
such  person  or  owner  to  take  such  measures  in  relation  to  the 
flowing,  leaking,  diversion  or  release  of  water  as  the  notice 
requires". ^^ 

Anyone  who  contravenes  such  a  notice  is  guilty  of  an 
offence  and  is  liable  to  a  fine  of  not  more  than  $200  per  day 
for  every  day  the  contravention  continues.  The  powers  here 
conferred  on  the  Commission  are  a  curious  mixture.  The 
power  given  is  to  form  an  "opinion"— not  to  "find  on  proven 
facts".  It  is  a  legislative  power,  applicable  to  a  particular  situ- 
ation. There  is  no  right  of  appeal.  Once  the  Commission  has 
formed  an  opinion  and  issued  a  notice  the  penal  consequences 
follow  from  the  notice  issued  by  the  Commission.  The  person 
accused  of  the  act  cannot  contend  in  the  courts  that  he  did 
not  cause  the  leakage.  The  only  defences  would  be  that  he 
had  complied  with  the  notice  or  that  there  was  no  leakage. 

*^Ibid.,  s.  28a(5)  as  enacted  by  Ont.  1964,  c.  86,  s.  5(3)  and  amended  by  Ont. 
1966,  c.  108,  s.  4. 


Chapter  12S         2117 

But  one  who  has  not  caused  the  leakage  might  well  have  diffi- 
culty, to  say  the  least,  complying  with  a  notice  directing  him 
to  stop  the  leakage.  There  is  no  redress  available  where  the 
Commission  may  err  in  its  "opinion". 

The  powers  given  to  the  Commission  in  this  regard  are 
much  greater  than  those  given  to  a  Supreme  Court  judge  in 
an  action  where  it  is  claimed  tliat  an  excavation  has  caused 
leakage  with  respect  to  a  neighbouring  water  supply.  In  such 
case  the  judge  would  have  to  try  the  case  on  notice  to  all 
parties,  facts  would  have  to  be  forthcoming  to  prove  the  alle- 
gations and  there  would  be  a  right  of  appeal. 

Under  the  provisions  we  have  been  discussing  all  that  is 
required  before  the  Commission  issues  a  notice  is  that  it  form 
an  opinion. 

LICENSING 

No  person  may  carry  on  the  business  of  boring  or  drilling 
wells  for  water  without  a  licence  issued  by  the  Commission.^" 
The  Commission  "may  suspend  or  cancel  a  licence  at  any 
time,"^"^  The  purpose  of  licensing  is  not  set  out  in  the  Act. 
It  may  be  to  assure  that  those  who  bore  or  drill  wells  are  com- 
petent or  it  may  be  for  the  purpose  of  having  a  register  of 
those  engaged  in  the  business  so  that  logs  may  be  obtained 
and  water  patterns  developed. 

Whatever  the  purpose  may  be,  where  the  Commission 
refuses  to  issue  a  licence  the  applicant  should  have  a  right  to 
be  heard  and  it  should  be  compelled  to  give  reasons  for  a 
refusal.  The  Commission  should  not  have  power  to  suspend 
or  cancel  a  licence  without  the  licensee  having  an  oppor- 
tunity to  be  heard  and  to  know  the  reasons  alleged  as  to  why 
his  licence  should  be  suspended  or  cancelled. 

Approval  of  Water  Works  and  Sewage  Works 

With  certain  exceptions,  where  a  municipality  or  a  per- 
son wishes  to  establish  a  water  works  the  approval  of  the  Com- 
mission must  be  first  obtained.  The  only  standard  set  to  guide 

"/fejd.,  s.  29(1). 
^'Ihid.,  s.  29(4). 


2118         The  Ontario  Water  Resources  Commission 

the  Cominission  is  "where  in  the  opinion  of  the  Commission 
it  is  in  the  public  interest  to  do  so  .  .  .".^^ 

There  is  no  right  of  appeal  from  decisions  of  the  Com- 
mission. 

"Where  any  person  undertakes  or  proceeds  with  the  estab- 
lishment of  any  water  works,  or  the  extension  of  or  change 
in  any  existing  "w-ater  works,  without  having  first  obtained 
the  approval  of  the  Commission,  the  Commission  may  order 
the  person  to  afford  at  his  own  expense  such  facilities  as  the 
Commission  may  deem  necessary  for  the  investigation  of  the 
works  and  the  source  of  water  supply  and  may  direct  such 
changes  to  be  made  in  the  source  of  water  supply  and  in  the 
works  as  the  Commission  may  deem  necessary,  and  any 
changes  directed  by  the  Commission  to  be  made  in  the  works 
shall  be  carried  out  by  the  person  at  his  o^nti  expense. "^^ 

Here  again,  there  is  no  right  of  appeal  and  the  Commission's 
powers  are  limited  only  by  what  "it  may  deem  necessary". 

The  Commission  has  approximately  the  same  powers 
with  respect  to  sewage  works  as  it  has  respecting  water  works 
and  there  is  the  same  lack  of  safeguards  for  the  rights  of  the 
individual  who  may  be  affected  by  the  exercise  of  such 
powers.'" 

CLOSING  ROADS 

Where  the  Commission  has  approved  of  the  establish- 
ment of  or  the  extension  of  a  sewage  works  in  or  into  another 
municipality,  the  municipality  undertaking  the  establishment 
or  extension  may  apply  to  the  Ontario  Municipal  Board  for 
an  order, 

"(a)  stopping  up  and  closing  any  highway,  road  or  road 
allowance,  temporarily  or  permanently,  for  the  purpose 
of  allowing  the  establishment  or  extension  to  be  carried 
on  and  vesting  it  in  the  municipality  undertaking  the 
establishment  or  extension,  and  providing  for  the  open- 
ing of  another  high-way,  road  or  road  allowance  in  lieu 
of  the  highway,  road  or  road  allowance  so  stopped  up 
and  closed,  and  section  91  of  The  Registry  Act  does  not 
apply; 


'Hhid.,  s.  30(3). 
"76id.,  s.  30(2). 

^"Ibid.,  s.  31  as  amended  bv  Ont.  1961-62,  c.  99,  s.  9;  Ont.  1964.  c.  86,  s.  8  and 
Ont.  1965,  c.  91,  s.  3. 


Chapter  12S         2119 

(b)  ordering  that  any  building  restrictions,  covenants  run- 
ning with  the  land  or  any  limitations  placed  upon  the 
estate  or  interest  of  any  person  in  any  lands  upon  or 
through  which  it  is  proposed  that  the  establishment  or 
extension  may  be  constructed  shall  be  terminated  and 
shall  be  no  longer  operative  or  binding  upon  or  against 
any  person,  and  directing  that  any  such  order  be  regis- 
tered imder  The  Registry  Act;  and 

(c)  fixing  the  compensation  for  lands  taken  or  injuriously 
affected  in  the  construction,  maintenance  or  operation 
of  the  establishment  or  extension. "^^ 

The  power  to  close  roads  under  these  provisions  suffers 
by  comparison  with  the  power  conferred  on  the  Ontario 
Municipal  Board  under  the  Highway  Improvement  Act.^" 
Under  this  Act  the  Board  may  give  its  approval  to  a  by-law 
closing  a  municipal  road  that  intersects  or  runs  into  a  con- 
trolled-access  road.  Provisions  governing  procedures  are  laid 
down  in  the  statute  for  the  protection  of  the  rights  of  those 
who  may  be  affected  and  a  right  of  appeal  is  given  with  leave 
of  the  Court  of  Appeal.  There  is  an  express  provision  that 
the  municipality  shall  make  due  compensation  to  the  owner 
of  the  land  injuriously  affected  by  the  closing.^^  There  are  no 
specified  rights  of  appeal  under  the  Ontario  Water  Resources 
Commission  Act.  HoW'ever,  the  provisions  of  the  Ontario 
Municipal  Board  Act  giving  a  right  of  appeal  with  leave  of 
the  Court  of  Appeal  on  any  question  of  jurisdiction  or  law 
W'Ould  be  applicable. ^^  This  is  a  more  restricted  right  of 
appeal  than  is  given  under  the  Highway  Improvement  Act  to 
which  we  have  just  referred.  It  seems  illogical  that  where 
proceedings  are  taken  under  one  Act  to  close  a  road  there 
should  be  a  general  right  of  appeal  and  w^here  proceedings  are 
taken  under  another  Act  there  is  a  limited  right  of  appeal. 
We  think  there  should  be  a  general  right  of  appeal  from  any 
order  of  the  Board  closing  a  road. 

Although  there  is  a  provision  giving  power  to  the  Ontario 
Municipal  Board  to  fix  compensation  for  lands  taken  or 
injuriously  affected  "in  the  construction,  maintenance  or 
operation    of    the    establishment    or    extension"    of    selvage 

"/fejrf.,  s.  32(5)  as  re-enacted  by  Ont.  1966,  c.  108,  s.  5. 

"R.S.O.  1960.  c.  171,  s.  93. 

"/fold.,  s.  93(6). 

"R.S.O.  1960,  c.  274,8.95(1). 


2120         The  Ontario  Water  Resources  Commissioyi 

Avorks^^  there  is  no  express  provision  for  compensation  for 
those  injuriously  affected  by  orders  of  the  Board  with  respect 
to  the  closing  of  roads.  There  should  be  such  a  provision. 
The  Act  specifically  provides  that  "the  registration  of  an 
order  under  clause  b  of  subsection  5  [with  respect  to  the 
termination  of  covenants  and  restrictions]  is  a  bar  to  any 
action  or  proceeding  taken  by  any  person  claiming  any  right 
or  benefit  under  or  by  reason  of  any  such  restrictions,  cov- 
enants, interests,  estate  or  title  in  the  lands  described  in  the 
order. "^^  This  denies  a  right  of  action  for  damages  suffered 
by  the  beneficiaries  of  covenants  running  with  the  land  or 
limitations  placed  upon  the  estate  or  interest  in  the  lands. 

ADJUDICATION  OF  COMPLAINTS 

'The  Board  may  inquire  into,  hear  and  determine  any  appli- 
cation by  or  on  behalf  of  any  municipality  or  person  com- 
plaining that  any  municipality  constructing,  maintaining  or 
operating  selvage  ^v^orks  or  having  the  control  thereof, 

(a)  has  failed  to  do  any  act,  matter  or  thing  required  to  be 
done  by  an  Act  or  regulation,  order  or  direction,  or  by 
any  agreement  entered  into  -^vith  the  municipality;  or 

(b)  has  done  or  is  doing  any  such  act,  matter  or  thing  im- 
properly, 

and  that  the  same  is  causing  deterioration,  loss,  injury  or 
damage  to  property,  and  the  Board  may  make  any  order, 
award  or  finding  in  respect  of  any  such  complaint  as  it  deems 
just."^" 

The  powers  conferred  under  this  section  are  strictly 
judicial  and  do  not  involve  any  matters  of  policy,  yet  the 
remedy  is  confined  to  what  the  "Board  deems  just".  It  may 
make  "any  order,  award  or  finding  ...  as  it  deems  just."  Very 
important  claims  may  be  affected  by  the  exercise  of  these 
powers.  There  are  no  procedural  provisions  in  the  Act  but 
the  rules  of  procedure  made  by  the  Board  (the  Ontario 
Municipal  Board)  would  be  applicable^^  and  the  right  of 
appeal  is  dependent  upon  obtaining  leave  of  the  Court  of 
Appeal  and  it  is  limited  to  matters  of  law  and  jurisdiction.^^ 

"R.S.O.  1960,  c.  281,  s.  32(5)(c)  as  re-enacted  by  Ont.  1966,  c.  108,  s.  5. 

^"Ihid.,  s.  32(6)  as  re-enacted  by  Ont.  1966,  c.  108,  s.  5. 

^'Ibid.,  s.  33. 

^'R.R.O.  1960,  Reg.  466. 

"R.S.O.  1960,  c.  274,  s.  95. 


Chapter  128         2121 

Where  a  person  suffers  damage  by  reason  of  acts  done  in 
the  construction  of  or  the  maintenance  of  the  operation  of  a 
sewage  works  and  the  Board  conducts  a  hearing  and  makes  an 
award,  it  is  difficult  to  see  why  he  should  not  have  the  same 
rights  of  appeal  as  he  would  have  had  if  he  had  brought  an 
action  and  judgment  was  given.  The  right  to  compensation 
should  be  a  right  to  compensation  for  the  loss  or  damage  and 
not  a  right  to  be  compensated  "as  the  Board  deems  just." 

Since  the  powers  of  the  Board  with  respect  to  awarding 
compensation  in  expropriation  cases  have  now  been  conferred 
on  the  Land  Compensation  Board''''*  any  application  under 
the  section  we  have  been  discussing  should  be  heard  by  that 
Board. 

EXPROPRIATIONS 

All  the  provisions  of  the  Act  dealing  with  expropriation 
and  related  matters,  and  particularly  section  34,  should  be 
revised  to  eliminate  conflict  wdth  the  Expropriations  Act, 
1968-69. 

POWERS  OF  ENTRY 

"(1)  Where  a  local  municipality,  a  county  or  a  local  board 
of  health  or  the  local  board  of  a  health  unit  undertakes 
under  section  47a  or  the  regulations  made  under  section 
47  or  under  an  agi^eement  to  inspect  plumbing,  the 
municipality  or  local  board,  as  the  case  may  be,  may 
pass  by-laws, 

(a)  providing  for  such  inspections  and  for  appointing 
one  or  more  inspectors  for  such  purpose; 

(b)  for  charging  fees  for  such  inspections  and  fixing  the 
amounts  thereof; 

(c)  for  requiring  the  production  of  plans  of  plumbing 
that  is  to  be  constructed,  repaired,  renewed  or 
altered  and  of  the  location  of  drains,  pipes,  traps 
and  other  works  or  appliances  that  are  or  are  to  be 
part  of  or  connected  with  the  plumbing,  and  for 
charging  fees  for  the  inspection  and  approval  of 
such  plans,  and  fixing  the  amount  of  the  fees;  and 
for  the  issuing  of  a  permit  certifying  to  such 
approval  and  requiring  that  without  such  permit 
no  such  plumbing  may  be  constructed,  repaired,  re- 
newed or  altered; 


*°The  Expropriations  Act,  1968-69,  c.  36,  s.  28. 


2122         The  Ontario  Water  Resources  Commission 

(3)  An  inspector  may  at  all  reasonable  hours  enter  any 
premises  to  inspect  plumbing  to  which  the  regulations 
made  under  section  47  are  applicable  and  every  person 
who  prevents  or  obstructs  or  attempts  to  prevent  or 
obstruct  any  such  entry  or  inspection  is  guilty  of  an 
offence  and  on  summary  conviction  is  liable  to  a  fine 
of  not  more  than  $25."^^ 

The  powers  of  entry  here  given  are  no  doubt  necessary 
but  they  are  unnecessarily  wide  and  should  not  be  conferred 
under  any  statute.  The  only  restriction  is  that  the  entry 
should  be  exercised  at  "reasonable  hours"  and  for  the  pur- 
pose of  inspecting  the  premises  to  which  the  regulations 
apply.  Not  only  should  the  entry  be  at  reasonable  hours  but 
it  should  be  restricted  to  entries  that  are  reasonably  necessary. 
A  statement  of  the  conditions  precedent  which  should  be 
satisfied  before  such  an  entry  is  made  should  be  confirmed  in 
the  legislation.  The  inspector  should,  before  exercising  his 
power  of  entry,  be  required  to  produce  proper  identification. 
The  occupant  of  premises  should  have  the  right,  without 
incurring  liability  for  the  penalties  provided  in  the  Act,  to 
prevent  the  entry  of  any  person  purporting  to  be  a  plumbing 
inspector,  unless  proper  identification  is  presented. 

SUBORDINATE  LEGISLATIVE  POWER 

The  Commission  is  given  power,  with  the  approval  of  the 
Lieutenant  Governor  in  Council,  to  exempt  any  persons,  or 
any  substance  or  quantity  or  concentration  thereof  from  the 
provisions  of  the  Act  prohibiting  the  addition  of  substances 
to  wells,  lakes,  rivers,  ponds,  springs,  streams,  reservoirs  or 
w^atercourses  for  the  purpose  of  killing  or  affecting  plants, 
fish  or  other  living  matter  without  a  permit.*^^ 

Likewise,  the  Commission  is  given  power  to  exempt 
sewage  works  and  water  works  from  the  provisions  of  the  Act 
which  give  to  the  Commission  control  over  the  construction 
and  operation  of  such  works. ^'^ 

"R.S.O.  I960,  c.  281,  s.  47b  as  enacted  by  Ont.  1961-62,  c.  99,  s.  15. 

"^Ibid.,  s.  47(l)(ja)  as  enacted  by  Ont.  1961-62,  c.  99,  s.  14(1)  and  s.  28b  as 
enacted  by  Ont.  1961-62,  c.  99,  s.  7. 

"^Ihid.,  s.  47(l)(ka)  as  enacted  by  Ont.  1961-62,  c.  99,  s.  14(2);  s.  30  as  amended 
by  Ont.  1961-62,  c.  99,  s.  8  and  Ont.  1964,  c.  86,  s.  7;  and  s.  31  as  amended 
by  Ont.  1961-62,  c.  99,  s.  9,  Ont.  1964,  s.  86,  s.  8  and  Ont.  1965,  c.  91,  s.  3. 


Chapter  128         2123 

In  Report  Number  1  we  said: 

"Powers  to  designate  industries  or  subject  matters  to  which 
an  Act  applies  by  extending  the  operation  of  the  Act  to  them, 
or  by  exempting  them  from  the  application  of  the  Act,  arc 
really  powers  to  amend  the  Act.  .  .  . 

Powers  of  definition  or  amendment  should  not  be  con- 
ferred imless  they  are  required  for  urgent  and  immediate 
action.  Such  exercise  of  power  to  alter  the  scope  or  operation 
of  an  Act  may  vitally  affect  rights  of  individuals  or  classes  of 
individuals  coming  within  its  piuview."^^ 

If  the  subordinate  legislative  powers  to  which  we  have 
just  referred  can  be  said  to  be  of  urgent  necessity,  the  Act 
should  set  standards  for  their  exercise. 

The  Commission  may,  by  regulation,  set  up  a  grievance 
board  and  confer  on  it  any  powers  that  may  be  conferred 
"upon  a  commission  under  the  Public  Inquiries  Act."*^ 

In  Report  Number  1  we  recommended  that  powers  of 
investigation  should  not  be  conferred  by  regulation.^'  If  such 
powers  are  required  they  should  be  conferred  by  amendment 
to  the  Act. 


RECOMMENDATIONS 

1.  Section  18  of  the  Act  should  be  amended  to  make  it  clear 
that  the  Commission  is  liable  to  restore  the  lands,  build- 
ings, etc  of  a  person  that  may  have  been  disturbed.  The 
Commission  should  also  be  liable  to  pay  compensation 
for  any  damage  to  property  w^hich  cannot  be  repaired. 

2.  The  provisions  in  sections  19(1),  34  and  all  other  pro- 
visions in  the  Act  dealing  with  matters  related  to  expro- 
priation which  conflict  with  the  Expropriations  Act, 
1968-69  should  be  repealed. 

3.  Section  19(1)  should  also  be  amended  to  provide  that  the 
Commission  may  use  the  waters  of  any  lake,  river,  etc. 
"as  may  be  necessary  for  its  purposes"  and  not  "as  may 
be  deemed  necessary  for  its  purposes." 

4.  Provision   should   be   made   for  compensation    for   loss 


'p.  348  supra. 

''R.S.O.  1960,  c.  281,  s.  47(l)(kb)  as  enacted  by  Ont.  1962-63,  c.  99,  s.  7(1). 

•p.  408  supra. 


2124         The  Ontario  Water  Resources  Commission 

suffered  by  riparian  owners  arising  out  of  the  exercise  of 
the  power  conferred  on  the  Commission  to  use  waters. 

5.  A  thorough  review  of  all  provincial  legislation  respect- 
ing the  use  of  water  should  be  conducted  with  a  view  to 

(a)  determining  a  coherent  policy  on  this  subject  and, 

(b)  removing   conflicting   statutory    provisions    relating 
thereto. 

6.  A  person  who  would  be  affected  by  an  approval  or  order 
permitting  the  discharge  of  sewage  into  a  lake,  river, 
stream  or  other  watercourse  granted  under  section  27(2) 
should  have  an  opportunity  to  be  heard  before  such 
order  is  made. 

7.  The  definition  of  an  area  that  includes  a  source  of  water 
supply  under  section  28(1)  should  be  by  way  of  regula- 
tion approved  by  the  Lieutenant  Governor  in  Council 
and  provision  should  be  made  that  those  within  the  area 
affected  should  be  furnished  with  a  copy  of  such  regu- 
lation. 

8.  Section  28a  should  be  amended  to  provide  standards 
concerning  the  granting,  refusal  and  cancellation  of  per- 
mits thereunder  and  should  provide  for  procedural  safe- 
guards to  those  affected  and  a  right  of  appeal  from 
decisions  made  thereunder.  These  recommendations  are 
equally  applicable  to  section  28b  which  should  also  con- 
tain a  provision  setting  out  the  standards  concerning  the 
purposes  for  which  a  regulation  may  be  passed  exempt- 
ing persons  or  substances  from  the  application  of  section 
28b(l). 

9.  Section  28a(5)  should  be  amended  to  require  that  the 
Commission  must  find,  as  a  fact,  that  the  flowing  or  leak- 
ing of  water  as  referred  to  in  the  section,  interferes  with 
any  public  or  private  interest  in  any  water.  On  a  charge 
of  violating  a  notice  under  the  section  the  accused  should 
have  the  right  to  challenge  the  Commission's  finding. 
Alternatively,  there  should  be  a  right  of  appeal  to  the 
Court  from  the  finding  of  the  Commission  prior  to  the 
issuance  of  a  notice  under  the  subsection. 

10.    Section  29  should  be  amended  to  set  the  standards  which 
should  affect  the  granting  or  refusing  and  cancellation 


Chapter  12S         2125 

of  a  licence,  to  provide  procedural  safeguards  with 
respect  to  licensing  proceedings  inider  it,  and  to  provide 
a  right  of  appeal  from  decisions  made  under  it. 

11.  Sections  30  and  31  should  be  amended  to  particularize 
in  greater  detail  the  standards  which  should  be  applic- 
able to  approvals  by  the  Commission  of  water  works  and 
sewage  works  and  should  provide  for  an  appeal  from 
decisions  of  the  Commission  thereunder  to  the  Minister. 

12.  There  should  be  a  general  right  of  appeal,  i.e.,  one  not 
restricted  to  questions  of  jurisdiction  or  law,  from  deci- 
sions of  the  Ontario  Miniicipal  Board  under  section  32 
(closing  a  road). 

13.  Section  32  should  contain  an  express  provision  for  com- 
pensation for  those  injuriously  affected  by  orders  of  the 
Ontario  Municipal  Board  with  respect  to  the  closing  of 
roads. 

14.  Section  32(6)  should  be  amended  insofar  as  it  bars  a  right 
of  action  for  damages  suffered  by  the  beneficiaries  of 
covenants  running  with  the  land  or  limitations  placed 
upon  the  estate  or  interest  in  the  lands.  The  section 
should  provide  for  compensation  for  such  persons. 

15.  Section  33  of  the  Act  should  be  amended  to  provide  that 
the  determination  thereunder  should  be  made  by  the 
Land  Compensation  Board.  The  right  to  compensation 
should  be  for  the  loss  or  damage  caused  and  not  a  right 
to  be  compensated  "as  the  Board  deems  just".  There 
should  be  a  right  of  appeal  to  the  Court  of  Appeal  from 
a  judgment  thereunder. 

16.  The  powers  of  entry  conferred  by  section  47b  of  the  Act 
should  be  revised  so  that  they  become  exercisable  only 
upon  defined  conditions  precedent  being  satisfied  and 
the  inspectors  should  be  required  to  produce  proper 
identification  when  acting  under  the  section. 

17.  The  powers  to  make  exemptions  from  the  Act  by  regu- 
lation should  either  be  repealed  or  standards  set  for  their 
exercise  in  emergencies. 

18.  The  power  to  investigate  referred  to  in  section  47(1  )(kb) 
should  be  conferred  by  the  statute  and  not  by  regulation. 


CHAPTER  129 


The  Police  Act 


1  HE  provisions  of  the  Police  Act^  which  we  shall  con- 
sider fall  under  three  headings: 

(1)  The  Ontario  Police  Commission 

(2)  Boards  of  Commissioners  of  Police 

(3)  Police  Discipline 

ONTARIO  POLICE  COMMISSION 

The  Ontario  Police  Commission  was  established  in  1961.^ 
It  is  composed  of  three  persons  w'ho  are  appointed  by  the 
Lieutenant  Governor  in  Council.^  The  powers  and  functions 
of  the  Commission  are  many  and  varied.  They  include  power 
to  request  the  commissioner  of  the  Ontario  Provincial  Police 
Force  to  secure  the  proper  policing  of  a  municipality  that  does 
not  maintain  a  police  force  and  is  not  provided  with  police 
services  pursuant  to  agreements  authorized  under  the  Act;^ 
to  request  a  municipality  to  take  such  steps  as  the  Commission 
deems  necessary  to  provide  or  maintain  an  adequate  police 
force  complying  w4th  the  Act  and  the  regulations;^  to  ap- 
prove, in  certain  circumstances,  of  the  establishment  or  main- 
tenance of  a  police  force  by  any  county,  township  or  village 

"R.S.O.  1960,  c.  298  as  amended  by  Ont.  1960-61,  c.  77;  Ont.  1961-62,  c.  105; 

Ont.  1962-63,  c.  106;  Ont.  1964,  c.  92;  Ont.  1965,  c.  99;  Ont.  1966,  c.  118; 

Ont.  1967,  c.  76;  Ont.  1968,  c.  97;  and  Ont.  1968-69,  c.  96. 
''Ibid.,  s.  39a  as  enacted  by  Ont.  1961-62,  c.  105,  s.  6. 
^Ibid.,  s.  39a(l)  as  enacted  by  Ont.  1961-62,  c.  105,  s.  6. 
*Ibid.,  s.  4  as  re-enacted  by  Ont.  1961-62,  c.  105,  s.  2  and  amended  by  Ont. 

1964,  c.  92.  s.  4. 
^Ibid.,  s.  5(1)  as  re-enacted  by  Ont.  1964,  c.  92,  s.  5(1)  and  amended  by  Ont. 

1967,  c.  76,  s.  3(1). 

2126 


Chapter  129         2127 

and  the  revocation  of  such  approvals;"  to  maintain  a  system  of 
statistical  records  and  research  studies  of  criminal  occurrences 
and  matters  related  thereto  for  the  purpose  of  aiding  the 
police  forces  in  Ontario;'^  to  assist  in  co-ordinating  the  work 
and  efforts  of  the  police  forces  in  Ontario; "^  to  operate  the 
Ontario  Police  College;^  to  conduct  investigations  in  accord- 
ance with  the  provisions  of  the  Act;^"^  and  to  hear  and  dispose 
of  appeals  in  disciplinary  matters  by  members  of  police  forces 
in  accordance  with  the  Act  and  the  regulations/^ 

We  are  concerned  in  this  Report  with  certain  aspects 
only  of  these  powers. 

Investigatory  Powers 

Investigatory  powers  are  conferred  by  three  provisions 
in  the  Act. 

(1)  The  Commission  may  "hold  an  inquiry  into  the  con- 
duct of  any  member  of  the  Ontario  Provincial  Police  Force 
or  of  any  employee  connected  therewith."^-  Upon  such  an 
inquiry  it  "has  and  may  exercise  all  the  powers  and  auth- 
ority that  may  be  conferred  upon  a  person  appointed  under 
The  Public  Inquiries  Act" }^ 

(2)  The  Commission,  or  any  member  thereof  designated 
by  the  chairman  of  the  Commission,  "may  investigate,  in- 
quire into  and  report  upon  the  conduct  of  or  the  perform- 
ance of  duties  by  any  chief  of  police,  other  police  officer,  con- 
stable, special  constable  or  by-law  enforcement  officer,  the 
administration  of  any  police  force,  the  system  of  policing 
any  municipality  and  the  police  needs  of  any  municipality" 
either  with  or  without  the  request  of  the  council  of  the 
municipality.^^  In  such  an  inquiry  the  Commission,  or  the 


*Ibid.,  s.  18(1)  as  enacted  by  Ont.  1965,  c.  99,  s.  5  and  amended  by  Ont.  1967, 

c.  76,  s.  5  and  s.  18(3)  as  enacted  by  Ont.  1967,  c.  76,  s.  5. 
"•Ibid.,  s.  39b(l)(a)  as  enacted  by  Ont.  1962-63,  c.  106,  s.  4. 
^Ihid.,  s.  39b(l)(e)  as  enacted  by  Ont.  1962-63,  c.  106,  s.  4. 
^Ibid.,  s.  39b(l)(f)  as  enacted  by  Ont.  1962-63,  c.  106,  s.  4.  And  see  s.  61  as 

amended  by  Ont.  1965,  c.  99,  s.  13. 

"Ibid.,  s.  39b(l)(g)  as  enacted  by  Ont.  1962-63,  c.  106,  s.  4. 
^Ibid.,  s.  39b(I)(h)  as  enacted  by  Ont.  1962-63,  c.  106,  s.  4  and  amended  by 

Ont.  1966,  c.  118,  s.  11(4). 

"Ibid.,  s.  40(3)  as  re-enacted  by  Ont.  1961-62,  c.  105,  s.  7. 
''Ibid. 
"■Ibid.,  8.  48(1)  as  amended  by  Ont.  1961-62,  c.  105,  s.  9(1);  Ont.  1965,  c.  99, 

s.  10(1,  2);  Ont.  1966,  c.  118,  s.  16;  and  Ont.  1968,  c.  97,  s.  12(1). 


2128         The  Police  Act 

member  designated,  has  the  powers  and  authority  that  may 
be  conferred  on  a  person  appointed  under  the  Public 
Inquiries  Act.^^ 

(3)  The  Commission  may  be  directed  by  the  Lieutenant 
Governor  in  Council  to  inquire  into  and  report  upon  any 
matter  relating  to, 

"(a)   the  extent,  investigation  or  control  of  crime,  or 
(b)  the  enforcement  of  law  .  .  ."^® 

In  the  performance  of  its  investigatory  duties  under  this 
provision  the  Commission,  subject  to  subsection  9  of  section 
48a,  "has  all  the  powers  to  enforce  the  attendance  of  witnesses 
and  to  compel  them  to  give  evidence  and  produce  documents 
and  things  as  are  vested  in  any  court  in  civil  cases. "^^  Under 
that  subsection,  the  Commission  shall  not  exercise  its  power 
to  penalize  any  person  except  upon  an  application  to  a  judge 
of  a  county  or  district  court. ^^ 

We  considered  these  provisions  and  criticized  them  in 
Report  Number  1^^  and  it  is  unnecessary  to  repeat  what  we 
said  there.  There  is,  however,  an  incongruity  respecting  the 
conferment  of  investigatory  powers  in  the  Police  Act  and  in 
Ontario  legislation  generally.  Boards  of  commissioners  of 
police  have  power  to  enforce  their  orders  by  order  of  com- 
mittal under  section  12  of  the  Act  while  the  Commission  that 
sits  in  appeal  from  them  has  no  such  powers  when  exercising 
its  investigatory  powers.  It  may  be  reasonably  thought  that 
investigations  relating  to  the  extent  and  control  of  crime  and 
the  enforcement  of  law  would  require  the  use  of  more  strin- 
gent investigatory  powers  than  the  disciplinary  power  of  a 
board.  In  fact,  the  Commission's  powers  under  section  48a 
are  considerably  more  fettered  than  most  of  the  other  investi- 
gatory powers  conferred  by  Ontario  legislation  which  we  have 
tabulated  in  Report  Number  1.^" 

Subsections  6  and  7  of  section  48a  provide  a  form  of  pro- 
cedure whereby  the  Commission  may  state  a  case  for  the 

"/6zrf.,  s.  48(2)  as  amended  by  Ont.  1961-62,  c.  105,  s.  9(3). 
^^Ibid.,  s.  48a(l)  as  enacted  by  Ont.  1964,  c.  92,  s.  17. 
^Ubid.,  s.  48a(3)  as  enacted  by  Ont.  1964,  c.  92.  s.  17. 
"/feirf.,  s.  48a(9)  as  enacted  by  Ont.  1964,  c.  92,  s.  17. 
^*pp.  443-44  supra. 
'"pp.  466-81  supra. 


Chapter  129         2129 

opinion  of  ihc  Court  of  Appeal.  I'he  language  used  therein 
is  substantially  imported  from  the  Public  Inquiries  Act.-' 
We  discussed  and  criticized  this  language  in  Report  Num- 
ber 1.^-  The  comments  and  recommendations  we  made  there 
respecting  contempt  powers  and  stated  cases  have  eciual  appli- 
cation to  section  48a  of  the  Police  Act. 

Sections  12,  40(3),  48(2)  and  48a  (3),  (6),  (7)  and  (9) 
should  be  repealed  and  replaced  by  legislation  conferring 
powers  on  the  respective  bodies  by  reference  to  the  Public 
Inquiries  Act  redrafted  as  recommended  in  Chapter  36  of 
Report  Number  1. 

BOARDS  OF  COMMISSIONERS  OF  POLICE 

The  chief  police  responsibilities  of  a  board  of  commis- 
sioners of  police  (hereinafter  referred  to  as  "a  board")  are  to 
appoint  the  members  of  the  police  force  in  the  municipality 
in  which  it  has  jurisdiction  and  to  be  "responsible  for  the 
policing  and  maintenance  of  law  and  order  in  the  munici- 
pality."-^ The  members  of  a  police  force  are  "subject  to  the 
government  of  the  board  and  shall  obey  its  lawful 
directions."^* 

The  Composition  of  Boards  of 
Commissioners  of  Police 

Except  in  the  case  of  joint  boards  and  in  the  Municipality 
of  Metropolitan  Toronto,  a  board  of  commissioners  of  police 
shall  consist  of: 

"(a)   the  head  of  the  [municipal]  council; 

(b)  a  judge  of  any  county  or  district  court  designated  by  the 
Lieutenant  Governor  in  Council;  and 

(c)  such   person  as  the   Lieutenant  Governor   in   Council 
desianates."-^ 


o 


A  joint  board  of  two  or  more  municipalities  shall  con- 
sist of: 

"(a)   the  head  of  the  council  of  each  of  the  municipalities; 


"R.S.O.  1960,  c.  323,  s.  5. 
"pp.  453-57,  and  463-65  supra. 
"R.S.O.  1960,  c.  298,  ss.  14  and  16(1). 
-*Ibid.,  s.  16(1). 
'-'Ibid.,  s.  7(2). 


2130         The  Police  Act 

(b)  such  judge  and  such  other  persons  as  the  Lieutenant 
Governor  in  Council  designates. "^^ 

In  the  Municipality  of  Metropolitan  Toronto  the  board 
is  composed  of: 

"(a)   the  chairman  of  the  Metropolitan  Council; 

(b)  one  member  of  the  Metropolitan  Council  appointed  by 
the  Metropolitan  Council; 

(c)  a  judge  of  the  county  court  of  the  County  of  York  desig- 
nated by  the  Lieutenant  Governor  in  Council; 

(d)  one  provincial  judge  imder  the  Provincial  Courts  Act, 
1968  designated  by  the  Lieutenant  Governor  in  Coun- 
cil; and 

(e)  one  person,  Avho  is  not  qualified  to  be  appointed  or 
designated  under  clause  b,  c  or  d,  appointed  by  the 
Lieutenant  Governor  in  Council. "^^ 

The  result  is  that  in  Ontario  generally,  and  in  Metro- 
politan Toronto,  one  member  of  the  board  must  be  a  judge 
of  a  county  or  district  court  and  in  Metropolitan  Toronto  one 
member  must  be  a  provincial  court  judge.  Outside  of  Metro- 
politan Toronto  wide  resort  has  been  made  to  the  appoint- 
ment of  provincial  court  judges  as  members  of  boards. 

In  Report  Number  1  we  criticized  the  employment  of 
judges  for  extra-judicial  duties  and  questioned  the  propriety 
and  legality  of  county  or  district  court  judges  being  paid  for 
their  services  as  members  of  boards  of  commissioners  of 
police. ^^ 

We  think  that  there  is  a  basic  incompatibility  between 
the  position  of  a  judge  as  a  member  of  a  board  of  commis- 
sioners of  police  and  his  position  as  a  member  of  the  judiciary. 
On  the  one  hand  the  judge  is  in  what  may  be  broadly  con- 
sidered the  position  of  an  employer  of  all  police  officers 
appointed  by  the  board,  while  on  the  other,  he  is  required  to 
be  an  impartial  adjudicator  in  cases  involving  the  police  as 
prosecutors  and  witnesses  on  the  one  side  and  accused  persons 
on  the  other.  It  is  not  necessary  for  us  to  affirm  our  confidence 
in  the  ability  of  judges  in  criminal  cases  to  free  themselves 
froin  any  influences  flowing  from  their  dual  position.   This  is 

-'^Ibid.,  s.  8(2)  as  amended  by  Ont.  1965,  c.  99,  s.  3. 

"Municipality  of  Metropolitan  Toronto  Act,  R.S.O.  1960,  c.  260,  s.  196(1)  as 

amended  by  Ont.  1968,  c.  80,  s.  12,  and  Ont.  1968-69,  c.  77,  s.  10. 
°*See  Chapters  45  and  46  supra. 


Chapter  129         2131 

not  the  point.  The  point  is  that  neither  legislation  nor 
executive  action  should  require  that  judges  be  put  in  a 
position  where  an  allegation  can  be  made  that  they  are  subject 
to  a  conflict  of  interest  or  they  may  be  made  to  appear  to  be 
not  impartial. 

The  Police  Act  and  the  Municipality  of  Metropolitan 
Toronto  Act  should  be  amended  to  delete  the  requirement 
that  judges  be  appointed  to  boards  of  commissioners  of  police 
and  to  provide  expressly  that  judges  shall  be  ineligible  for 
such  appointments.^® 

Subordinate  Legislative  Powers 

For  the  implementation  of  their  duties,  boards  have 
conferred  on  them  legislative,^*^  judiciaP^  and  investigatory 
powers. ^^ 

"A  board  may  by  by-law  make  regulations  not  inconsistent 
with  the  regulations  under  section  62  for  the  government  of 
the  police  force,  for  preventing  neglect  or  abuse,  and  for 
rendering  it  efficient  in  the  discharge  of  its  duties. "^^ 

Section  62  confers  on  the  Lieutenant  Governor  in  Coun- 
cil power  to  make  regulations  covering  a  wide  area  of  subjects 
affecting  the  government  of  police  forces  and  relevant  matters. 
Later  we  shall  discuss  in  some  detail  the  regulations  that  have 
been  made. 

By  reason  of  the  definition  of  "regulation"  in  the  Regu- 
lations Act,^*  no  regulation  or  by-law  passed  by  a  board 
under  the  section  just  quoted  is  subject  to  the  filing  and 
publication  provisions  of  that  Act.  The  result  is  that  regula- 
tions and  by-laws  passed  by  boards  of  commissioners  of  police 
which  are  part  of  the  law  of  Ontario  are  not  available  to  the 
members  of  the  public  affected  by  them. 

"By  Ont.  1961-62,  c.  105,  s.  3  clauses  b  and  c  of  section  7(2)  of  the  Police  Act, 
set  forth  in  the  text  hereof,  were  repealed  and  the  following  substituted 
therefor:  "(b)  two  persons  designated  by  the  Lieutenant  Governor  in  Coun- 
cil." This  amendment  was  never  proclaimed  in  force  and  was  subsequently 
repealed:  Ont.  1965,  c.  99,  s.  15(1). 

"R.S.O.  1960,  c.  298,  s.  15. 

"O.Reg.  451/69. 

"R.S.O.  1960,  c.  298,  s.  12. 

"7&?U,  s.  15. 

"R.S.O.  1960,  c.  349,  s.  1(d). 


2132         The  Police  Act 

We  are  advised  by  the  Chairman  of  the  Commission  that 
these  regulations  for  the  most  part  are  in  the  nature  of 
standing  orders  having  to  do  with  dress,  working  conditions 
and  matters  of  internal  discipline.  However,  the  power  con- 
ferred under  the  statute  is  a  broad  one.  The  only  limitation 
on  its  exercise  is  that  the  regulations  be  not  inconsistent  with 
those  approved  by  the  Lieutenant  Governor  in  Council  and 
that  they  be  "for  the  government  of  the  police  force,  for 
preventing  neglect  or  abuse,  and  for  rendering  it  efficient  in 
the  discharge  of  its  duties." 

No  doubt,  it  would  not  be  practical  to  have  all  regula- 
tions governing  all  police  forces  approved  by  the  Lieutenant 
Governor  in  Council.  Nevertheless,  there  should  be  some 
control  over  regulations  made  by  a  by-law  of  a  board  of  com- 
inissioners  of  police  passed  under  section  1 5  and  some  central 
place  where  they  may  be  seen  by  members  of  the  public.  We 
have  been  advised  that  at  least  one  board  has  refused  public 
access  to  such  by-laws.  They  are  part  of  the  law  of  Ontario  and 
should  be  open  to  the  public. 

We  recommend  that  all  regulations  made  by  boards  of 
commissioners  of  police  under  section  15  of  the  Act  be 
approA'ed  by  the  Ontario  Police  Commission,  be  filed  with  it 
and  be  open  for  public  inspection. 

POLICE  DISCIPLINE 

The  Lieutenant  Governor  in  Council  may  make  regula- 
tions "for  the  government  of  police  forces  and  governing  the 
conduct,  duties,  suspension  and  dismissal  of  members  of 
police  forces. "^^  This  provision  is  in  marked  contrast  to  the 
provisions  of  the  Royal  Canadian  Mounted  Police  Act^"  in 
which  the  basic  provisions  respecting  the  discipline  of  police 
officers  are  set  out  in  the  Act.  The  power  to  make  basic  laws 
respecting  police  discipline  ought  not  to  be  delegated  as  it  is 
in  the  Police  Act.  These  laws  should  be  set  out  in  the  statute. 

As  we  stated  earlier,  the  Lieutenant  Governor  in  Council 
has  made  regulations  relating  to  police  discipline,  applying  to 

==^^R.S.O.  I960,  c.  298.  s.  62(l)(a). 
'"Can.  1959,  c.  54,  Part  II. 


Chapter  129         2133 

all  organized  police  forces  in  Ontario.  A  "Code  of  Offences" 
has   been   formulated   setting  out   some   fifty-one   offences. ^^ 

There  are  two  basic  procedural  provisions  in  the  regula- 
tions. The  first  relates  to  the  trial  of  minor  offences  and  the 
second  to  the  trial  of  major  offences. 

All  disciplinary  proceedings  are  commenced  by  the 
laying  of  a  complaint  by  any  constable  or  other  police  officer 
before  a  chief  of  police  or  any  officer  designated  by  him  for 
this  purpose  under  section  3  of  the  regulation,  alleging  an 
offence  in  accordance  with  the  code.  If  the  chief  of  police  or 
designated  officer  considers  that  the  allegations  so  warrant  he 
shall  sign  the  charge  sheet. ^^ 

Minor  offences  and  major  offences  are  not  defined.  The 
charge  shall  specifically  designate  whether  the  offence  is  a 
minor  offence  or  a  major  offence. ^^ 

"A  person  found  guilty  of  a  minor  offence  is  liable  to, 

(a)  an  admonition;  or 

(b)  forfeiture  of  leave  or  days  off  not  exceeding  five  days;  or 

(c)  forfeiture  of  pay  not  exceeding  three  days'  pay."^" 

"A  person  found  guilty  of  a  major  offence  is  liable  to, 

(a)  dismissal;  or 

(b)  be  required  to  resign,  and  in  default  of  resigning  within 
seven  days,  to  be  summarily  dismissed  from  the  force;  or 

(c)  reduction  in  rank  or  gradation  of  rank;  or 

(d)  forfeiture  of  leave  or  days  off  not  exceeding  twenty  days; 
or 

(e)  forfeiture  of  pay  not  exceeding  five  days'  pay;  or 

(f)  a  reprimand,  which  may  be  imposed  in  lieu  of  or  in  addi- 
tion to  any  other  punishment  imposed. "^^ 

A  charge  sheet  must  be  prepared  in  accordance  with 
Form  1  to  the  regulation.  It  must  set  out  the  charge  in  wTiting 
and  a  true  copy  shall  be  served  upon  the  person  charged 
together  with  a  statement  of  the  allegations  upon  which  the 
charge  is  founded. ^- 

"O.  Reg.  451/69. 

^'Ibid.,  s.  6. 

^'Ibid.,s.  5(11)  ands.  40(11). 

*''Ibid.,  ss.  16(4),  51(4). 

*^Ibid.,  ss.  20(2),  52(8). 

*"-Ibid.,  s.  5(1)(2). 


2134         The  Police  Act 

Trial  of  Minor  Offences 

The  procedure  relating  to  the  trial  of  minor  offences  is 
less  elaborate  than  that  relating  to  the  trial  of  major  offences 
but  in  several  significant  respects  it  is  identical.  Where  a 
person  is  charged  with  a  minor  offence, 

"(a)   the  evidence  shall  be  given  under  oath  but  need  not 
be  taken  down  in  writinsr;  and 

(b)  the  person  charged  shall  have  an  opportunity  of, 
(i)  hearing  the  evidence  against  him, 
(ii)  calling  witnesses,  whether  members  of  a  police 
force  or  any  other  persons,  in  his  defence  and, 

(iii)  giving    evidence    as    a    witness    on    his    own 
behalf/'-^s 

Normally  the  presiding  officer  at  the  hearing  is  the  chief 
of  police.  But  the  hearing  may  be  presided  over  by  an  acting 
chief  of  police  or  an  officer  designated  by  the  chief  of  police. 
"The  chief  of  police  may  designate  the  deputy  chief  of  police, 
or,  where  the  rank  of  inspector  is  established,  any  other  officer 
of  the  rank  of  inspector  or  higher"  to  hear  and  dispose  of 
charges.^* 

"The  decision  of  the  presiding  officer,  including  the 
punishment  imposed,  if  any,  shall  be  in  writing  and  a  copy 
shall  forthwith  be  served  upon  the  person  charged. "^^  We  do 
not  construe  this  provision  as  imposing  any  obligation  on  the 
presiding  officer  to  give  reasons  for  his  decision.  The  pre- 
siding officer  should  be  required  to  give  reasons. 

An  appeal  lies  from  the  decision  of  the  presiding  officer 
to  a  board  of  commissioners  of  police  or  to  a  committee  of  the 
relevant  municipal  council  where  there  is  no  board.  Such 
appeal  is  by  way  of  a  hearing  de  novo  and  a  verbatim  record 
of  every  such  hearing  shall  be  kept.^^ 

A  person  convicted  of  a  minor  offence  may  appeal  his 
conviction  or  the  punishment  imposed  or  both,  as  confirmed 
or  altered  by  the  board  or  committee  of  council  to  the  Ontario 
Police  Commission.^' 

'^bid.,  s.  16(1). 
**Ihid.,  ss.  2(i),  3. 
'^Ibid.,  s.  16(5). 
'"Ibid.,  s.  16(9)-(13). 
'Ubid.,  s.  16(15). 


Chapter  129         2135 

Trial  of  Major  Offences 

Where  a  person  is  charged  with  a  major  offence, 
"(a)   the  witnesses  shall  be  sworn; 

(b)  the  evidence  shall  be  recorded  verbatim  by  some 
reliable  means;  and 

(c)  the  person  charged  shall  have  the  opportunity  of, 
(i)  hearing  the  evidence  against  him, 

(ii)  calling  witnesses,  whether  members  of  a  police 
force  or  any  other  persons,  in  his  defence,  and 

(iii)  giving    evidence    as    a    witness    on    his    own 
behalf."^8 

In  the  case  of  major  offences: 

"The  chief  of  police  may  refer  the  charge  for  hearing 
before  the  board,  or  where  there  is  no  board,  the  com- 
mittee of  council  and  the  provisions  of  this  Part  that 
apply  to  the  hearing  of  a  charge  by  the  chief  of  police 
or  a  presiding  officer  designated  by  him  apply  mutatis 
mutandis  to  the  hearing  of  a  charge  by  the  board  or 
committee  of  council. "^^ 

"Upon  notice  to  the  person  charged,  other  than  a  chief 
of  police,  a  board,  or  where  there  is  no  board,  a  com- 
mittee of  council,  may  designate  a  county  court  judge, 
a  district  court  judge  or  a  provincial  court  judge  (crimi- 
nal division)  who  consents  to  the  designation  to  hear  a 
charge  or  appeal  that  the  board  or  committee  of  council 
may  hear."^^ 

A  significant  aspect  of  these  provisions  is  their  bearing  on 
the  possible  issue  of  the  legal  bias  of  a  presiding  officer.  It  is 
not  uncommon  for  a  chief  of  police,  because  of  his  knowledge 
of,  or  connection  with,  events  giving  rise  to  disciplinary 
proceedings,  to  be  accused  of  legal  bias  w'hen  he  sits  as  a 
tribunal  to  hear  the  charges. ^^ 

In  Regina  v.  Peterborough  Police  Commissioners,  ex 
parte  Lewis,^~  a  chief  constable  laid  a  charge  against  one  of 

"/fezd.,  s.  17(1). 

*^Ihid.,  s.  17(6). 

^"Ibid.,  s.  18(1).  See  also  ss.  2(i),  3  and  17(5). 

*^For  recent  cases  see  Regina  v.  Peterborough  Police  Commissioners,  ex  parte 
Lewis,  [1965]  2  O.R.  577  (C.A.);  Regina  v.  Cookson.  ex  parte  Magee  (1969), 
2  D.L.R.  (3d)  67  (Sask.  Q.B.)  and  Regina  v.  Carroll  and  Johnson,  ex  parte 
Sutherland,  [1970]  1  O.R.  66  (High  Ct.). 

^'Ibid. 


2136         The  Police  Act 

his  police  officers  on  facts  which  the  chief  constable  had  per- 
sonally observ^ed  and  he  then  proceeded  to  preside  at  the 
hearing  of  the  charge.  It  was  argued  that  as  he  acted  as 
accuser,  witness  and  judge  he  was  disqualified  for  bias.  This 
argument  prevailed  before  the  lower  court  but  the  Court  of 
Appeal  reversed  the  judgment  and  held  that  the  argument 
based  on  bias  should  not  succeed.  McGillivray,  J. A.,  writing 
the  judgment  of  the  Court  said: 

"The  Chief  of  Police  in  the  present  case  was  required  by 
the  Regulations  to  sit  and  hear  the  charge  as  laid  and  he 
had  no  option  but  to  do  so.  It  is  almost  inevitable  that 
one  in  the  office  of  the  Chief  of  Police  must  frequently 
find  himself  in  the  very  position  ^vhich  here  existed; 
circumstances  which  called  upon  him  to  exercise  his 
authority  first  in  an  administrative  capacity  and  later  in 
a  seini-judicial  one.  Not^vithstanding  this  fact,  Parlia- 
ment sa^v  fit  to  direct  disposal  of  all  such  offences  in  the 
manner  stated  and  any  allegation  that  natural  justice 
has  been  denied  must  be  revie"\ved  in  the  light  of  such 
legislation."^^ 

The  Court  stated  that  it  would  hesitate  to  say  that  "a  Police 
Chief,  or  an  officer  in  the  army,  who  witnesses  what  he 
considers  to  be  an  infraction  of  the  Regulations  and  directs 
that  a  charge  be  laid,  is  incapacitated,  if  he  is  in  charge  of  that 
unit,  froin  hearing  and  adjudicating  upon  the  charge,  or  is  to 
be  accused  of  bias  if  he  acts  in  the  matter. "^^ 

In  Report  Number  1  we  stated  that  "'impartiality  is  a 
necessary  attribute  not  only  of  courts  of  jtistice  but  of  all 
bodies  holding  the  power  of  decision. "^^  As  indicated  in  the 
judgment  of  the  Court  of  Appeal  the  rule  against  bias  is 
inapplicable  where  the  deciding  tribunal  and  no  other,  is 
required  to  hear  the  case.^*^ 

In  a  later  case  the  Chief  Justice  of  the  High  Court  held, 
in  granting  an  order  prohibiting  a  chief  constable  and  a 
deputy  chief  constable  from  hearing  charges  under  the  Police 
Act  on  the  ground  of  bias,  that  section  7  of  the  regulations, 

°^Ihid.,  584. 

'^'Ibid.,  583. 

^^p.  47  supra.  See  also  pp.  76-79  supra. 

^''See  S.  A.   de  Smith,  Judicial  Review   of  Administrative   Action    (2nd   ed., 

1968)  262-63:  "If  it  is  possible  to  constitute  a  different  tribunal  unaffected 

by  interest  or  bias,  no  difficultv  arises." 


Chapter  129         2137 

as  they  then  stood,  enabled  the  chiei  constable  to  designate 
an  inspector  to  hear  the  case.^'  The  Chief  Justice  said  that 
"it  is  contemplated  by  the  Regulations  that  there  may  be 
actions  where  it  would  be  improper  for  the  Police  Chief  to 
hear  the  matter". ^^ 

We  think  the  matter  should  be  cleared  up  by  legislation. 
It  is  inconsistent  with  the  fundamental  principles  of  a  fair 
trial  that  the  presiding  officer,  who  must  render  the  decision, 
should  be  cast  in  the  role  of  accuser,  witness  and  judge.  This 
is  true  notwithstanding  that  there  is  a  right  of  appeal  from 
the  decision  of  the  presiding  officer.  One  should  not  be  put  to 
the  necessity  of  appealing  in  order  to  get  a  trial  free  from  the 
appearance  of  bias. 

We  recommend  that  w^iere  the  presiding  officer  has  pre- 
vious knowledge  of  matters  relating  to  a  charge  he  should  be 
required  to  disclose  it  and  the  person  charged  should  have  a 
right  to  require  the  presiding  officer  to  refer  the  matter  to 
another  officer  for  trial  or  to  the  board  of  commissioners  of 
police  or,  where  there  is  no  board,  to  a  committee  of  council. 

Neither  a  chief  of  police  nor  any  other  officer  should  be 
permitted  to  adjudicate  in  disciplinary  matters  where  he  is 
either  the  accuser  or  a  witness  against  the  person  charged. 

A  person  convicted  of  a  major  offence  may  appeal  to  the 
board,  where  there  is  a  board,  or  where  there  is  none,  to  the 
committee  of  council. ^^  On  the  appeal  the  board,  or  the 
committee,  shall  decide  the  appeal  on  the  record  but  may,  in 
special  circumstances,  hear  such  evidence  as  the  board  or 
committee  of  council  deems  advisable.*"'  On  an  appeal,  the 
board  or  committee  may, 

"(a)  confirm  the  conviction; 

(b)  quash  the  conviction; 

(c)  alter  the  punishment  imposed  as  it  deems  just;  or 

(d)  order  a  new  hearing  of  the  charge. "^^ 

"R.R.O.  1960,  Reg.  486,  s.  7(1)  as  remade  by  O.  Reg.  200/64,  s.  1.    See  now 

s.  3  of  O.Reg.  451/69. 
^^Regina  v.  Carroll  and  Johnson,  ex  parte  Sutherland,  [1970]  I  O.R.  66  at  71. 
"O.  Reg.  451/69,  s.  19(1). 
^"Ibid.,  s.  19(4). 
"'Ibid.,  s.  19(5). 


2138         The  Police  Act 

An  appeal  lies  from  the  board  or  committee  of  council 
to  the  Ontario  Police  Commission. ^- 

The  procedure  is  the  same  on  appeals  to  the  Ontario 
Police  Commission  from  conviction  for  minor  or  major 
offences. ^^ 

The  Commission  decides  the  appeal  on  the  record  but  it 
may,  "in  special  circumstances,  hear  such  evidence  as  the 
Commission  deems  advisable. "^^ 

On  the  hearing  the  Commission  may, 

"(a)   dismiss  the  appeal; 

(b)  allow  the  appeal  and  quash   the  conviction   and 
punishment  imposed; 

(c)  vary  the  punishment  imposed  as  it  deems  just; 

(d)  affirm  the  punishment  imposed; 

(e)  substitute  a  decision  that  in  its  opinion  should  have 
been  reached;  or 

(f)  order  a  ne^v^  hearing  of  the  charge. "^^ 

There  is  no  provision  that  the  presiding  officer,  the  board, 
a  committee  of  council  or  the  Commission  must  give  reasons 
for  decisions.  There  should  be  a  requirement  that  reasons, 
in  writing,  be  given  in  all  cases  if  requested. 

Power  to  Summon  Witnesses 

There  is  no  express  power  given  to  compel  the  attendance 
of  witnesses  at  the  hearing  of  a  charge,  other  than  those  who 
are  members  of  the  police  force. 

Members  of  the  police  force  may  be  ordered  to  attend^^ 
and  a  person  charged  shall  have  the  opportunity  of  calling 
witnesses  whether  members  of  a  police  force  or  other  per- 
sons.^^  But  no  method  is  provided  by  which  witnesses  who 
are  not  members  of  the  force  may  be  compelled  to  attend 
either  for  the  prosecution  or  the  defence. 

It  is  an  unjust  procedure  that  does  not  give  to  the  one 
charged  with  an  offence  means  by  which  he  can  compel 
witnesses  to  attend  to  give  relevant  evidence. 

'''Ibid.,  s.  20(3). 
'^Ibid.,  s.  24. 
"'Ibid.,  s.  24(6). 
"'Ibid.,  s.  24(9). 
""Ibid.,  s.  10. 
"'Ibid.,  ss.  16,  17. 


Chapter  129         2139 

Provision  should  be  made  for  power  to  summon  witnesses 
at  a  disciplinary  hearing  either  for  the  prosecution  or  defence 
in  accordance  with  our  recommendation  made  in  Report 
Number  1.^^ 

Witness  Fees 

Provision  is  made  for  the  payment  to  witnesses  other  than 
those  who  are  members  of  a  police  force  of  fees  at  the  rate  of 
$6.00  per  day,  together  with  travelling  expenses,  while  in 
attendance  at  a  hearing/'*'  In  Report  Number  1  we  recom- 
mended that  witnesses  attending  before  statutory  tribunals 
should  be  paid  at  the  rate  of  $15.00  per  day.^'^  This  rate 
should  apply  to  hearings  under  the  Police  Act. 

RECOMMENDATIONS 

1.  Sections   12,   40(3),   48(2),   and  48a   (3),   (6),   (7)   and   (9) 

should  be  repealed  and  replaced  by  legislation  conferring 
powers  of  investigation  on  the  respective  bodies  by  refer- 
ence to  the  Public  Inquiries  Act  recast  as  recommended 
in  Report  Number  1. 

2.  Provision  should  be  made  requiring  that  all  regulations 
made  by  boards  of  commissioners  of  police  under  section 
15  of  the  Act  shall  be  approved  by  the  Ontario  Police 
Commission  and  filed  with  that  body.  Such  regulations 
should  be  open  for  public  inspection. 

3.  The  Police  Act  and  the  Municipality  of  Metropolitan 
Toronto  Act  should  be  amended  to  delete  the  require- 
ment that  judges  be  appointed  to  boards  of  commissioners 
of  police  and  to  provide  expressly  that  judges  shall  be 
ineligible  for  such  appointments. 

4.  The  basic  provisions  relating  to  police  discipline  should 
be  contained  in  the  Act  and  not  in  the  regulations. 

5.  The  presiding  officer,  a  board  of  commissioners  of  police, 
a  committee  of  council  and  the  Ontario  Police  Commis- 
sion should  be  required  to  give  reasons,  if  requested,  in 

•*p.  408  supra. 
"O.Reg.  451/69,  s.  25. 
'"p.  863  supra. 


2140         The  Police  Act 

the    disposition    of    charges    involving    major    or    minor 
offences. 

6.  Where  the  officer  presiding  at  the  hearing  of  a  charge 
involving  a  minor  or  major  offence  has  previous  knowl- 
edge of  the  matters  relating  to  the  charge  he  should  be 
required  to  disclose  it  to  the  person  charged  and  such 
person  should  have  a  right  to  require  the  presiding  officer 
to  refer  the  matter  to  another  officer  for  trial  or  to  the 
board  of  commissioners  of  police  or,  where  there  is  no 
board,  to  a  committee  of  council. 

Where  the  presiding  officer  is  either  the  accuser  or 
witness  against  the  person  charged  he  should  be  disquali- 
fied from  hearing  the  charge. 

7.  The  respective  bodies  having  power  to  hear  disciplinary 
inatters  should  have  power  to  summon  witnesses  either 
for  the  prosecution  or  defence  in  accordance  wdth  our 
recommendations  in  Report  Number  1. 

8.  Provision  should  be  made  for  the  payment  of  witness  fees 
in  accordance  with  our  recommendations  in  Report 
Number  1 . 


CHAPTER  130 


The  Workmen's  Compensation 
Board 


INTRODUCTION 

Ihe  Workmen's  Compensation  Board,  to  which  we 
shall  hereafter  refer  as  "the  Board"  unless  the  context  other- 
wise requires,  is  a  body  corporate  consisting  of  three  members 
appointed  by  the  Lieutenant  Governor  in  Council  to  adminis- 
ter the  Workmen's  Compensation  Act.^ 

To  appreciate  fully  the  nature  of  the  functions  of  the 
Board  it  is  necessary  to  examine  briefly  the  development  of 
the  present  law  in  Ontario  relating  to  compensation  for 
injuries  sustained  and  disabilities  suffered  by  workmen  in  the 
course  of  their  employment  and  to  discuss  some  of  the 
underlying  philosophy  of  the  Act. 

Under  the  common  law  the  liability  of  the  employer  to 
compensate  an  employee  for  injuries  sustained  in  the  course 
of  his  employment  rested  mainly,  if  not  entirely,  on  fault  or 
negligence.  In  such  cases,  unless  it  could  be  proved  that  the 
employer  had  failed  in  his  duty  to  take  reasonable  care  in  the 
circumstances,  there  was  no  liability  and  no  recovery.  Even  in 
the  event  that  an  employee  could  establish  a  breach  of  duty 
to  take  care  on  the  part  of  his  employer  many  defences  were 
open  to  the  employer.  Generally  speaking,  if  it  was  shown 
that  the  employee  was  guilty  of  contributory  negligence  or 
that  he  had  voluntarily  assumed  the  risk  of  injury  or  that  the 
injury  was  caused  by  a  fellow  servant,  the  employer  was  freed 
of  liability. 

^R.S.O.  I960,  c.  437,  s.  54. 

2141 


2142         The  Workmen's  Compensation  Board 

In  addition  to  the  legal  defences  available  to  the 
employer,  the  employee  was  faced  with  many  practical 
obstacles.  The  defences  available  created  intricate  legal  prob- 
lems and  an  employer  against  whom  a  judgment  was  obtained 
at  trial,  or  his  insurance  company,  was  usually  in  a  much  more 
favourable  financial  position  to  carry  appeals  to  the  appellate 
courts  thus  exposing  the  employee  to  the  possibility  of  pro- 
hibitive legal  costs.  Even  where  the  employee  obtained  a 
final  judgment  his  recovery  would  depend  on  the  financial 
responsibility  of  the  employer. 

As  a  result  of  recommendations  made  by  a  Royal  Com- 
mission presided  over  by  the  late  Sir  William  Meredith, 
former  Chief  Justice  of  Ontario,  the  first  Workmen's  Com- 
pensation Act  was  passed  in  1914.  The  purpose  of  the  Act 
was  to  give  greater  security  to  workmen  with  respect  to  injury 
sustained  while  at  work  and  loss  suffered  through  industrial 
diseases.  This  was  done  by  largely  removing  the  concept  of 
fault  and  basing  the  right  to  compensation  on  the  existence 
of  the  employer-employee  relationship  and  placing  collective 
liability  on  industry  as  a  whole. 

The  underlying  philosophy  of  the  Act  is  that  compensa- 
tion for  injury  sustained  in  production  is  a  legitimate  cost 
that  should  ultimately  be  borne  by  the  consumer  and  not  the 
primary  producer  —  the  employee.  With  certain  exceptions, 
to  which  we  shall  refer,  the  common  law  liability  of  the 
particular  employer  has  been  abolished. 

The  liability  under  the  Act  may  be  a  collective  one  or  an 
individual  one.  For  industries  falling  within  Schedule  1  of 
the  regulations  the  liability  is  a  collective  one;  for  those  falling 
within  Schedule  2,  the  liability  is  an  individual  one.  Most 
industries  and  services  fall  within  Schedule  1.  Those  indus- 
tries falling  within  Schedule  2  are  of  such  character  that  there 
is  little  likelihood  that  they  would  not  meet  their  obligations 
under  the  Act,  e.g.  railways,  construction  or  operation  of 
telephone  lines  and  works,  employment  under  the  Crown  in 
the  right  of  Ontario,  or  employment  by  a  permanent  board 
or  commission  appointed  by  the  Crown,  etc. 

The  jurisdiction  of  the  courts  to  entertain  claims  for 
compensation   against   employers   for   injuries   sustained   by 


I 


Chapter  130         2143 

employees  to  which  the  Act  applies  is  removed.-  All  claims 
for  compensation  must  be  determined  by  the  Board. ^ 

Certain  changes  are  made  in  the  substantive  law  applic- 
able to  cases  where  employees  who  do  not  come  within  the 
benefits  of  the  Act  are  injured  in  the  course  of  their  employ- 
ment.^ With  these  changes  we  are  not  concerned. 

The  principle  of  collective  liability  is  not  applied 
uniformly  to  all  industries  falling  within  Schedule  1.  An 
accident  fund  is  established  from  which  compensation  is  paid. 
The  Board  is  given  power  to  establish  separate  classes  and  sub- 
classes or  industrial  groups^  and  it  may  assess  the  respective 
classes  or  sub-classes  for  contributions  to  the  accident  fund  to 
the  extent  to  which  claims  for  compensation  are  made  for  each 
class. ^  The  applicability  of  the  principle  of  collective  liability 
is  further  qualified  by  a  power  conferred  on  the  Board  to 
vary  the  assessment  for  each  individual  industry  or  plant  in 
relation  to  the  hazards  of  the  work.'^ 

In  addition,  the  Board  may  reward  or  penalize  particular 
employers  according  to  their  safety  record.® 

The  result  is  that  the  Board  has  two  main  functions: 

(1)  to  determine  what  compensation  should  be  paid  to 
employees  who  have  suffered  injury  or  disability,  and 

(2)  to  determine  the  assessment  that  should  be  levied  on 
employers  and  the  method  of  assessment. 

However,  as  we  shall  see,  the  Board  performs  many  other 
functions. 

There  are  two  exceptions  to  the  principle  of  compen- 
sation without  fault: 

(1)  where  the  injury  does  not  disable  the  workman  for  a 
period  of  at  least  three  calendar  days  from  earning  the  full 
wages  at  the  work  at  which  he  was  employed; 

'Ibid.,  s.  15. 
^Ibid.,s.U. 
*Ibid.,  s.  123. 
^Ibid.,  s.  86(1)(2). 
^Ibid.,  s.  86(2). 
'Ibid.,  s.  99(2). 

^Ibid.,  s.  86  as  amended  by  Ont.  1964,  c.  124,  s.  9  by  adding  subsec.  (6a),  and 
further  amended  by  Ont.  1968,  c.  143,  s.  18. 


2144  The  Workmeti's  Compensation  Board 

(2)  where  the  injury  is  attributable  solely  to  the  serious 
and  wilful  misconduct  of  the  workman,  unless  the  injury 
results  in  death  or  serious  disablement. 

If  either  of  these  exceptions  is  applicable  there  is  no  right 
to  compensation.^ 

We  now  consider  the  powders  of  the  Board  and  the  safe- 
guards that  are  necessary  to  protect  the  rights  of  the 
individual. 

POWERS  OF  DECISION 

For  convenience,  we  broadly  classify  the  powers  of 
decision  of  the  Board  into  three  groups: 

(a)  Powers  concerning  Compensation 

(b)  Powers  concerning  Assessment  of  Employers 

(c)  Powers  concerning  Classification  of  Employers 

Compensation 

In  determining  entitlement  to  compensation  the  Board 
exercises  judicial  power.  The  basis  of  entitlement  is  set  out 
in  the  Act.^''  The  function  of  the  Board  is  to  determine 
whether  or  not  the  facts  justify  the  application  of  the  law. 
This  function  has  been  characterized  in  Report  Number  1 
as  clearly  "judicial". ^^  Conditions  precedent  to  entitlement 
are  clearly  expressed. 

"Where  in  any  employment,  to  which  this  Part  applies, 
personal  injury  by  accident  arising  out  of  and  in  the 
course  of  the  employment  is  caused  to  a  workman,  his 
employer  is  liable  to  provide  or  to  pay  compen- 
sation .  . ."^- 

The  terms  "accident",  "employment",  "employer"  and 
"workman"  are  defined  and  it  is  clear  that  the  Board's  func- 
tion is  to  ascertain  the  existence  of  these  conditions.  There 
are  other  objectively  limited  conditions  precedent  to  the 
power  of  the  Board  to  award  compensation  such  as  in  the  case 
where  the  employee  is  injured  outside  of  the  province  and  is 

^Ibid.,  s.  3(1),  as  amended  by  Ont.  1968,  c.  143,  s.  2. 
^"Ibid.,  s.  3  as  amended  by  Ont.  1968,  c.  143,  s.  2. 
"p.  19ff.  supra. 
'^R.S.O.  1960,  c.  437,  s.  3(1). 


C/itilJlri   /y)  2145 

connected  in  one  way  or  another  wiili  ihc  j)ro\  in(  e.'"*  The 
power  of  the  Board  to  award  compensation  depends  on  a 
finding  that  the  re(|nired  conditions  precedent  have  been 
satisfied. 

In  addition  to  the  power  to  award  compensation  for 
injury  sustained  in  the  course  of  employment,  there  is  power 
to  award  compensation  for  disability  due  to  industrial  disease. 
The  right  to  compensation  in  such  case  is  objectively  limited'"* 
but,  subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council,  the  Board  may  determine  what  is  an  industrial  dis- 
ease. ^^  This  power  is  purely  a  legislative  one. 

With  respect  to  the  initial  question  of  entitlement  to 
compensation  under  the  Act  the  powers  of  decision  granted 
to  the  Board  meet  the  recjuirements  set  out  in  Report  Num- 
ber 1 ,  Rules  or  standards  to  govern  the  exercise  of  the  power 
are  stated  clearly  in  the  statute  conferring  the  power. 

The  power  of  decision  concerning  entitlement  however, 
involves  more  than  a  determination  of  the  circumstances  out 
of  which  the  injury  arose  and  that  they  come  within  the  Act. 
When  these  matters  have  been  decided  it  becomes  necessary  to 
make  three  further  decisions: 

(1)  the  destination  of  the  compensation; 

(2)  the  amount  of  compensation;  and 

(3)  the  manner  of  its  payment. 

Destination  of  Compensation 

In  the  case  of  a  non-fatal  injury  the  compensation  is 
usually  paid  to  the  workman  but  in  three  circumstances  the 
Board  may  direct  that  it  be  paid  otherwise.  The  first  two 
circumstances  are  set  out  in  section  49  of  the  Act  as  follows: 

"Where  a  workman  is  entitled  to  compensation  and  it 

is  made  to  appear  to  the  Board, 

(a)  that  the  workman  is  no  longer  residing  in  Ontario 
but  that  his  wife  or  child  or  children  under  sixteen 
years  of  age  are  still  residing  therein  without 
adequate  means  of  support  and  are,  or  are  apt  to 
become,  a  charge  upon  the  municipality  ^^'here  they 
reside,  or  upon  private  charity;  or 


"76id.,  s.  7. 

^*Ibid.,s.  116. 

"/6id.,  s.  116(13)  and  s.  1  (l)(i). 


2146  The  Workmen's  Compensation  Board 

(b)  that  the  workman  although  still  residing  in  Ontario 
is  not  supporting  his  wife  and  children  as  aforesaid 
and  an  order  has  been  made  against  the  workman 
by  a  court  of  competent  jurisdiction  for  the  support 
or  maintenance  of  his  wife  or  family,  or  for  alimony, 

the  Board  may  divert  such  compensation  in  whole  or  in 
part  from  the  workman  for  the  benefit  of  his  wife  or 
children. "^^ 

The  safeguards  set  out  for  the  exercise  of  the  powers  con- 
ferred under  this  section  are  objectively  stated  and  the  Board 
would  not  appear  to  have  power  arbitrarily  to  deprive  a 
workman  of  any  compensation  to  w^hich  he  is  entitled. 

The  third  circumstance  involves  the  situation  where  a 
workman  or  a  dependant  is  an  infant  or  a  person  with  some 
other  legal  disability. 

"If  a  workman  or  a  dependant  is  under  the  age  of 
tAventy-one  years  or  is  of  unsound  mind  or  in  the  opinion 
of  the  Board  is  incapable  of  managing  his  own  affairs, 
any  benefits  to  which  he  is  entitled  may  be  paid  on  his 
behalf  to  his  parent,  spouse  or  committee  or  to  the 
Public  Trustee  or  may  be  paid  to  such  other  person  or 
applied  in  such  manner  as  the  Board  deems  in  the  best 
interest  of  such  workman  or  dependant,  and  when  paid 
to  the  Public  Trustee,  it  is  the  duty  of  the  Public  Trus- 
tee to  receive  and  administer  any  such  money  for  the 
benefit  of  the  workman  or  dependant. "^'^ 

This  section  confers  on  the  Board  a  power  usually  exer- 
cised by  the  Court— to  determine  if  a  person  entitled  to  com- 
pensation is  incapable  of  managing  his  own  affairs.  In  addition, 
if  a  person  falls  within  a  class  of  persons  specified,  the  Board 
may  determine  what  in  its  opinion  is  in  the  best  interest  of 
the  w^orkman  or  dependant.  One  curious  aspect  of  this  section 
is  that  if  compensation  is  paid  to  the  Public  Trustee  it  is  his 
duty  to  receive  and  administer  the  money  for  the  benefit  of 
the  workman  or  dependant  but  if  the  money  is  paid  to  any 
other  person  no  such  obligation  is  expressly  imposed  on  him. 

It  is  difficult  to  understand  why  a  person  under  tw^enty- 
one  who  enters  into  a  contract  for  his  labour  and  is  entitled 
to  be  paid  wages  should  not  be  primarily  entitled  to  receive 

^^Ibid.,  s.  49. 

"^'Ibid.,  s.  50  as  re-enacted  by  Ont.  1968,  c.  143,  s.  12. 


Chapter  no         2147 

compensation  if  he  is  injured.  1  he  Act  should  give  the  Board 
authority  to  pay  the  compensation  to  the  infant  unless  a 
reasonable  cause  is  shown  why  it  should  ])e  ])aid  to  some 
other  person. 

Likewise,  generally  the  compensation  is  something  that 
belongs  to  the  injured  workman  or  dependant  and  should 
be  paid  to  him  unless  it  is  demonstrated  that  for  his  protec- 
tion or  the  protection  of  his  dependants  it  should  be  paid  to 
some  other  person.  The  final  decision  as  to  what  is  for  the 
benefit  of  the  injured  w^orkman  in  this  regard  ought  not  to 
rest  with  the  Board.  There  should  be  a  right  of  appeal.  We 
shall  discuss  appeals  later. 

The  most  serious  problems  concerning  the  destination  of 
compensation  arise  in  the  case  of  fatal  injuries.  In  such  cases 
the  Board  must  determine  what  is  the  proper  destination  of 
the  award.  Where  the  workman  is  survived  by  a  widow, 
invalid  husband  (where  the  "workman"  was  a  woman)  or 
dependant  children  their  entitlement  is  clear. ^'^  However, 
there  are  many  other  contingencies  where  compensation  may 
be  awarded.  For  instance,  entitlement  is  established  for  per- 
sons acting  as  foster  mothers  to  dependant  children.^''  This 
entitlement  is  conditioned  on  the  Board's  first  determining 
that  it  is  desirable  to  continue  the  existing  household  and  that 
the  person  acting  as  foster  mother  has  kept  up  the  household 
in  a  manner  that  the  Board  deems  proper.  This  power  of 
decision  is  both  an  objective  one  and  a  subjective  one.  The 
criteria  for  concluding  that  it  is  desirable  to  continue  the 
existing  household  or  that  the  household  has  been  kept  up  in 
a  satisfactory  manner  are  not  laid  down  specifically.  They 
appear  to  be  open  to  formulation  by  the  Board.  Some  attempt 
is  made  to  set  out  the  objective  limitations  on  the  power  but 
there  are  real  difficulties  in  interpreting  the  language.  The 
section  reads: 

"Where  the  workman  leaves  no  widow  or  the  widow 
subsequently  dies,  or  where  there  is  a  mother  of  a  de- 
pendant illegitimate  child,  and  it  seems  desirable  to 
continue  the  existing  household  and  an  aunt,  sister  or 
mother  of  an  illegitimate  child,  or  other  suitable  person, 
acts  as  foster-mother  in  keeping  up  such  household  and 

"Zfeirf.,  s.  37(l)(c)(d)(e)  as  re-enacted  by  Ont.  1968,  c.  143,  s.  7(1). 
^"Ibid.,  s.  37(4). 


2148  The  Workmen's  Conipetisatioii  Board 

maintaining  and  taking  care  of  the  children  entitled  to 
compensation  in  a  manner  that  the  Board  deems  satis- 
factory, such  foster-mother  while  so  doing  is  entitled  to 
receive  the  same  monthly  payments  of  compensation  for 
herself  and  the  children  as  if  she  were  the  widow  of  the 
deceased  .  .  ."-" 

The  lack  of  clarity  in  this  section  arises  by  reason  of  the 
attempt  to  provide  in  one  section  entitlement  for  foster- 
mothers  of  both  illegitimate  children  and  legitimate  children 
whose  mother  has  either  pre-deceased  the  workman  or  who 
has  died  subsequent  to  the  workman's  death.  If  it  is  intended 
to  draw  a  distinction  between  the  rights  to  compensation  for 
legitimate  and  illegitimate  children  it  should  be  clearly  stated. 
How^ever,  we  do  not  think  there  should  be  any  difference. 
If  the  illegitimate  child  has,  by  reason  of  an  industrial  accident 
to  a  workman,  been  deprived  of  maintenance  which  it  was 
entitled  to  receive  from  the  workman,  it  should  be  entitled 
to  compensation  under  the  Act. 

The  Board  also  has  a  discretionary  power  to  direct  that 
any  payment  in  respect  of  a  child  should  not  be  made  directly 
to  its  parent  but  that  it  should  be  applied  in  such  manner  as 
the  Board  may  deem  most  advantageous  for  the  child.  This 
power  may  be  exercised  when  the  Board  is  of  the  opinion 
that  for  any  reason  it  is  necessary  or  desirable. ^^  Although 
this  provision  is  commendable  it  nonetheless  leaves  the  Board 
with  a  wade  power  to  determine  the  scope  of  its  own  power. 
By  objectively  limiting  it  to  circumstances  when  the  Board 
"has  reasonable  grounds  to  believe  that  payment  to  a  parent 
■would  not  be  in  the  best  interests  of  the  child"  the  purpose 
could  be  accomplished  without  any  potential  infringement 
on  civil  rights. 

The  identification  of  dependant  children  as  beneficiaries 
is  circumscribed  by  the  requirement  that  they  be  under  the 
age  of  sixteen  years. -^  The  Board  may,  however,  extend  the 
period  for  which  compensation  may  be  paid  if  it  is  of  the 
opinion  that  furnishing  a  further  or  better  education  to  a 
child  appears  advisable.-^   This  provision  purports  to  give  the 

"-"Ibid.,  s.  37(4). 

"-Ubid.,  s.  37(10). 

"Ibid.,  s.  37(I)(e)  as  re-enacted  by  Ont.  1968,  c.  143,  s.  7(1). 

-^Ibid.,  s.  37(2)  as  amended  by  Ont.  1964,  c.  124,  s.  4(2). 


Chapter  110         2149 

Board  the  duty  of  acting  as  a  wise  parent  to  all  dependant 
children,  a  position  it  obviously  cannot  fill.  We  think  the 
philosophy  underlying  the  section  should  be  reversed.  It  can 
surely  be  assimied  that  in  most  cases  further  education  of  a 
sixteen-year  old  child  would  be  ad\isable  and  necessary.  The 
section  should  provide  that  on  application  the  Board  "shall" 
not  "may"  extend  the  period  of  compensation  iniless  on 
reasonable  grounds  it  is  of  the  opinion  that  the  furnishing 
of  further  or  better  education  would  not  be  advisable.  The 
section  gives  the  Board  a  very  w^ide  power  to  discriminate 
between  the  dependant  children. 

Amount  of  Compensation 

The  determination  of  the  amount  of  compensation  to  be 
awarded  involves  two  separate  decisions: 

(1)  it  is  necessary  to  determine  the  extent  of  the  injury: 

(2)  it  is  necessary  to  determine  the  amount  of  money  or 
other  aid  that  Avill  be  aw^arded  for  the  injury. 

Decisions  under  the  first  heading  involve  no  discretion  in  the 
case  of  death  resulting  from  an  injury.  Where  the  injury 
results  in  disability  the  Board  must  determine  the  nature  and 
extent  of  the  disability. 

The  Act  recognizes  three  types  of  disability:  temporary 
total  disability,  temporary  partial  disability  and  permanent 
disability,-*  but  now'here  in  the  Act  are  these  defined.  The 
determination  of  the  criteria  that  constitute  these  three  classes 
of  disability  is  a  matter  of  fact  for  the  Board.  We  think  this  is 
as  it  must  be. 

Decisions  concerning  the  amount  of  the  award  leave  very 
little  to  the  discretion  of  the  Board.  In  respect  of  death  they 
are  limited  quantitatively  by  amounts  stated  in  the  Act-^  or 
by  maximum  limits;-^  in  respect  of  temporary  disability  they 
are  limited  by  reference  to  a  percentage  of  average  earnings. 
The  manner  in  which  average  earnings  are  to  be  calcidated 
and  the  matters  that  are  to  be  taken  into  account  in  fixing 


■*Ibid.,  s.  40  as  re-enacted  by  Ont.  1968,  c.  143,  s.  8;  s.  41  as  amended  by  Ont. 

1962-63,  c.  145,  s.  5;  s.  42  as  re-enacted  by  Ont.  1968,  c.  143,  s.  10. 
'"Ibid.,  s.  37(l)(c)(d)(e),  as  re-enacted  by  Ont.  1968,  c.  143,  s.  7(1). 
'"Ibid.,  s.  37(l)(a)(f)  and  s.  37(3),  as  re-enacted  by  Ont.  1968,  c.  143,  s.  7. 


2150         The  Workmen's  Compensation  Board 

payments  are  set  out  in  the  Act.^^  Minimum  limits  on  the 
amount  of  disability  compensation  that  may  be  awarded  are 
set  out."^  Therefore,  in  many  respects  the  Act,  by  setting 
these  objective  and  indeed  quantifiable  limits,  has  reduced 
the  discretion  of  the  Board.  Such  a  reduction  effects  a  cor- 
responding reduction  in  any  fears  that  one  might  have 
concerning  the  possibility  of  infringement  on  civil  rights. 
In  this  case  safeguards  against  any  infringements  are  written 
into  the  Act. 

With  respect  to  permanent  disability  it  is  provided  that 
the  impairment  of  earning  capacity  shall  be  estimated  from 
the  nature  and  degree  of  the  injury  and  again  both  maxi- 
mum^^  and  minimum^^  limits  are  placed  on  the  amount  that 
may  be  awarded.  Although  average  weekly  earnings  are  again 
set  as  a  yardstick  against  which  the  maximum  limit  is  deter- 
mined provision  is  made  for  taking  into  account  what  the 
workman  could  earn  in  alternative  employment.^^  Although 
any  decision  to  award  compensation  on  this  latter  basis  is 
dependent  on  whether  the  Board  considers  it  more  equitable, 
the  Board  is  directed  to  take  into  account  the  workman's 
fitness  to  continue  in  the  employment  in  which  he  was  injured 
or  to  adapt  himself  to  some  other  suitable  occupation. 

It  may,  therefore,  be  concluded  that  the  Act  circum- 
scribes decisions  concerning  the  amount  of  compensation  to 
be  paid,  by  objective  limitations. 

In  addition  to  monetary  compensation,  an  injured  work- 
man is  entitled^-  to  whatever  medical  aid  is  necessary  as  a 
result  of  the  injury.  Questions  as  to  the  necessity,  character 
and  sufficiency  of  any  medical  aid  and  as  to  payment  for  medi- 
cal aid  are  to  be  determined  by  the  Board. ^^  The  question 
arises  as  to  whether  a  decision  in  respect  of  medical  aid  is 
subject  to  any  control.  It  would  appear  that  it  is  a  decision 
which  must  be  made  judicially.  The  laying  down  of  further 
standards  would  not  be  practicable  or  possible.   There  would 

"''Ibid.,  s.  44,  as  amended  by  Ont.  1962-63,  c.  145,  s.  6,  and  further  amended 

byOnt.  1968,  c.  143,  s.  11;  s.  45. 
'^Ibid.,  s.  43  as  amended  by  Ont.  1968-69,  c.  140,  s.  1(1). 
"''Ibid.,  s.  42(1)  as  re-enacted  by  Ont.  1968,  c.  143,  s.  10(1). 
'°Ibid.,  s.  43(b)  as  re-enacted  by  Ont.  1968-69,  c.  140,  s.  1(1). 
'^Ibid.,  s.  42(4). 

'"Ibid.,  s.  51(1)  as  re-enacted  by  Ont.  1968,  c.  143,  s.  13(1). 
"Ibid.,s.  51(6). 


Chapter  no         2151 

seem  to  be  sufficient  objectivity  in  the  word  "necessary"  itsell 
to  satisfy  any  objections  that  might  be  raised  regarding  the 
exercise  of  this  particular  power  of  decision. 

Manner  of  Payment  of  Compensation 
Commutation  of  Periodical  Paym,ents 

Payments  of  compensation  may  be  made  periodically. 
Normally,  they  are  paid  monthly.  However,  the  Board  is 
given  power  to  commute  periodical  payments  to  a  lump 
sum.^*  Prior  to  1964  the  consent  of  the  workman  was  re- 
quired before  periodical  payments  to  a  Schedule  2  employee 
might  be  commuted  under  section  27.  In  that  year  such  con- 
sent was  dispensed  with,^^ 

There  are  no  procedural  provisions  which  require  that 
a  workman  be  given  a  hearing  before  an  order  of  commuta- 
tion is  made.  This  is  a  matter  that  vitally  affects  the  interest 
of  a  workman.  There  should  be  a  statutory  provision  requir- 
ing the  consent  of  the  workman  or,  in  the  alternative,  that 
such  an  order  be  made  after  written  notice  has  been  given  to 
the  workman  and  he  has  been  given  an  opportunity  to  be 
heard. 

If  an  order  of  commutation  is  made  by  any  body  or  per- 
son legally  authorized  to  exercise  the  power  of  the  Board  by 
delegation  there  should  be  an  express  right  of  appeal  to  the 
Board.^^ 

Application  of  a  Lump  Sum  Where 
Payments  are  Commuted 

Although  the  workman  or  dependant  may  direct  how  the 
lump  sum  is  to  be  applied^^  the  Board  is  not  compelled  to  act 
on  his  direction.  It  is  given  broad  power  over  the  disposition 
of  the  lump  sum. 

'The  lump  sum  may  be, 

(a)  applied  in  such  manner  as  the  workman  or  depen- 
dant may  direct; 

(b)  paid  to  the  workman  or  dependant; 

^'Ibid.,  s.  27,  as  amended  by  Ont.  1964,  c.  124,  s.  3;  ss.  28,  29,  30,  46,  47. 
"^Ont.  1964  c.  124,  s.  3. 

^"For  a  discussion  of  delegation  of  powers  of  the  Board,  see  p.  2162  ff.  m/ra. 
"R.S.O.  1960,  c.  437,  s.  27(3)(a). 


2152         The  Workmen's  Compensation  Board 

(c)  invested  by  the  Board  and  applied  from  time  to  time 
as  the  Board  may  deem  most  for  the  advantage  of  the 
workman  or  dependant; 

(d)  paid  to  trustees  to  be  used  and  employed  upon  and 

subject  to  such  trusts  and  for  the  benefit  of  such 
persons  as,  in  case  it  is  payable  by  the  employer 
individually,  the  workman  or  dependant  directs  and 
the  Board  approves,  or,  if  payable  out  of  the  acci- 
dent fund,  as  may  be  desired  by  the  workman  or 
dependant  and  approved  by  the  Board; 

(e)  applied  partly  in  one  and  partly  in  another  or  others 
of  the  modes  mentioned  in  clauses  a,  b^  c  and  d, 

as  the  Board  may  determine. "^^ 

This  gives  the  Board  power  to  override  the  workman's 
direction  and  do  what  it  deems  best  for  him  by  applying  the 
lump  sum  in  the  several  ways  set  out  in  the  section.  Here 
again,  no  procedural  safeguards  are  provided  which  would 
give  the  workman  a  right  to  be  heard  before  the  Board  makes 
a  direction  to  pay  the  lump  sum  in  some  w^ay  other  than 
according  to  the  w^orkman's  direction.  Neither  is  there  any 
right  of  appeal. 

There  should  be  a  statutory  provision  that  an  order 
directing  the  lump  sum  to  be  applied  in  any  way  other  than 
that  directed  by  the  workman  only  be  made  after  reasonable 
notice  in  writing  to  the  workman.  If  such  an  order  is  made 
by  any  body  or  person  legally  authorized  to  exercise  the 
powers  of  the  Board  by  delegation  there  should  be  an  express 
right  of  appeal  to  the  Board. ^^ 

Assessment  of  Employers 

Penalties 

The  Board  is  given  powder  to  levy  penalty  assessments  and 
allow  merit  reductions.    The  Act  provides: 

"(4)  Where  in  the  opinion  of  the  Board  sufficient  pre- 
cautions have  not  been  taken  for  the  prevention  of 
accidents  to  workmen  in  the  employment  of  an 
employer  or  Avhere  the  working  conditions  are  not 
safe  for  workmen  or  where  the  employer  has  not 
complied  with  the  regulations  respecting  first  aid, 

^^Ibid.,  s.  27(3). 

'"For  a  discussion  of  delegation  of  powers  of  the  Board,  see  p.  2162  ff.  injra. 


I 


Cliajjler  no         2153 

the  Board  may  add  to  the  amount  of  any  contribu- 
tion to  the  aa  ident  liiMd  for  whi(h  the  emj)Ioyer 
is  liable  such  a  percentage  thereof  as  the  Board  may 
deem  just  and  may  assess  and  levy  the  same  upon 
the  employer. 

(5)  Any  additional  percentage  levied  and  collected 
imder  subsection  4  shall  be  added  to  the  accident 
fund  or  applied  in  reduction  of  the  assessment 
upon  the  other  employers  in  the  class  or  sub-class 
to  which  the  employer  from  whom  it  is  collected 
belongs  as  the  Board  may  determine.""*" 

These  powers  have  a  twofold  purpose.  It  is  intended 
that  their  exercise  will  improve  safety  and  impose  additional 
burdens  on  those  who  have  had  bad  safety  records.  The  levy- 
ing of  a  penalty  assessment  is  the  exercise  of  a  judicial  power. 
It  involves  a  decision  as  to  whether  a  particular  employer  has 
met  the  required  standards  of  conduct  and  having  made  that 
determination,  a  decision  as  to  what  action  should  be  taken. 
That  being  so  there  should  be  objective  standards. 

In  the  provision  there  is  a  mixture  of  subjective  and 
objective  standards.  "Where  in  the  opinion  of  the  Board 
sufficient  precautions  have  not  been  taken  .  .  ."  the  standard 
is  subjective  but  "where  the  working  conditions  are  not  safe 
for  workmen"  or  "where  the  employer  has  not  complied  with 
the  regulations  .  .  ."  the  standards  are  objective.  The  deter- 
mination of  the  amount  of  the  penalty  is  subjective. 

The  power  of  the  Board  to  add  to  the  contribtition  of 
an  employer  to  the  accident  fund  "such  a  percentage  thereof 
as  the  Board  may  deem  just"  is  a  power  that  may  be  exercised 
as  a  disciplinary  measure  or  for  the  protection  of  the  accident 
fund  and  the  fair  distribution  of  the  burden  thereof. 

When  the  power  is  to  be  exercised  as  a  disciplinary  meas- 
ure the  Board  ought  not  to  have  an  unlimited  discretion.  The 
amount  of  a  penalty  that  may  be  levied  in  a  court  is  always 
limited. 

We  think  that  the  exercise  of  the  power  should  be  lim- 
ited to  considerations  affecting  the  fair  distribution  of  the 
burden  of  assessment  for  the  purposes  of  the  accident  fund. 
The  accident  fund  is  an  insurance  fund  and  the  power  of  the 

"R.S.O.  I960,  c.  437,  s.  86(4)(5). 


2154         The  Workmen's  Compensation  Board 

Board  should  be  exercised  for  the  maintenance  of  the  fund 
as  such  having  regard  to  the  nature  of  the  risk. 

The  imposition  of  penalties  for  the  violation  of  standards 
of  conduct  belongs  to  law  enforcement.  It  is  in  its  nature, 
although  not  strictly,  criminal  law.  Penalties  are  provided 
under  many  Acts  to  enforce  safety  measures,  e.g.,  the  Indus- 
trial Safety  Act,  1964,^^  the  Mining  Act,"'-  etc.  The  administra- 
tion of  the  penal  law  is  not  a  power  that  should  be  conferred 
on  a  Board.  It  should  be  left  to  the  ordinary  processes  of  the 
courts  where  appropriate  rights  of  appeal  are  provided. 

The  view  we  have  taken  is  reinforced  by  the  language 
used  in  the  1964  amendment  to  the  Act,  as  further  amended 
in  1968: 

"Where  the  work  injury  frequency  and  the  accident  cost 
of  the  employer  are  consistently  higher  than  that  of 
the  average  in  the  industry  in  which  he  is  engaged,  the 
Board,  as  provided  by  the  regulations,  may  increase  the 
assessment  for  that  employer  by  such  a  percentage  there- 
of as  the  Board  may  deem  just,  and  may  assess  and  levy 
the  same  upon  the  employer,  and  may  require  the 
employer  to  establish  one  or  more  safety  committees  at 
plant  level."^3 

Apart  from  the  determination  of  the  amount  of  the  assessment 
the  conditions  are  objective.  Standards  are  set  out  which 
must  be  met  before  the  powers  may  be  exercised  and  their 
purpose  is  clear. 

The  power  of  the  Board  to  reduce  assessments  is  open  to 
the  criticism  that  the  test  is  subjective. 

"Where,  in  the  opinion  of  the  Board,  the  ways,  works, 
machinery  and  appliances  in  any  industry  conform  to 
modem  standards  in  such  manner  as  to  reduce  the 
hazard  of  accidents  to  a  minimum  and  the  Board  is  con- 
vinced that  all  proper  precautions  are  being  taken  by  the 
employer  for  the  prevention  of  accidents,  and  Avhere  the 
accident  record  of  the  employer  has  in  fact  been  consis- 
tently good,  the  Board  may  reduce  the  amount  of  any 
contribution  to  the  accident  fund  for  which  such 
employer  is  liable."^'* 

"Ont.  1964,  c.  45. 

"R.S.O.  1960,  c.  241. 

"R.S.O.  1960,  c.  437,  s.  86(6a),  as  enacted  by  Ont.  1964,  c.  124,  s.  9  and 

amended  by  Ont.  1968,  c.  143,  s.  18. 
"/feid.,  s.  86(6). 


Chapter  no         2155 

We  suggest  that  this  section  should  be  redrafted  to  read: 

"Where  the  Board  finds  that  the  ways,  works,  machinery 
and  appliances  in  any  industry  conform  to  modern  stan- 
dards in  such  manner  as  to  reduce  the  hazards  of 
accidents  to  a  minimum  and  all  proper  precautions  are 
being  taken  by  the  employer  for  the  prevention  of  acci- 
dents, and  where  the  accident  record  of  the  employer  has 
in  fact  been  consistently  good,  the  Board  may  reduce  the 
amount  of  any  contribution  to  the  accident  fund  for 
which  such  employer  is  liable." 

As  we  have  redrafted  this  section  the  Board  would  be  the 
arbiter  of  the  facts  and  the  section  would  be  structurally  simi- 
lar to  section  86(6a)  . 

The  policy  that  we  suggest  should  be  followed  has  been 
observed  with  respect  to  statements  found  to  be  inaccurate. 
The  Act  provides: 

"If  a  statement  is  found  to  be  inaccurate,  the  assessment 
shall  be  made  on  the  true  amount  of  the  payroll  as  ascer- 
tained by  such  examination  and  inquiry,  or,  if  an  assess- 
ment has  been  made  against  the  employer  on  the  basis 
of  his  payroll  being  as  shown  by  the  statement,  the 
employer  shall  pay  to  the  Board  the  difference  between 
the  amount  for  which  he  was  assessed  and  the  amount 
for  which  he  Avould  have  been  assessed  if  the  amount  of 
the  payroll  had  been  truly  stated,  and  in  addition  a  sum 
equal  to  such  difference. "^^ 

Here  the  amount  of  the  penalty  is  specifically  laid  dow^n  in 
the  Act  with  a  pow'er  in  the  Board  to  make  a  remission  where 
there  has  been  an  honest  error.^^ 

Where  there  is  failure  to  pay  an  assessment  the  defaulting 
employer  is  liable  to  pay  and  shall  pay  for  his  default  such 
percentage  of  the  amount  unpaid  as  may  be  prescribed  by  the 
regulations  or  as  may  be  determined  by  the  Board. '^^ 

The  Board  should  not  have  an  unlimited  pow^r  to  deter- 
mine the  percentage  of  the  amount  unpaid  which  is  to  be 
assessed  as  a  penalty.  In  the  first  place,  the  Act  contemplates 
that  such  a  percentage  would  be  prescribed  by  regulations. 
We  take  it  that  it  was  intended  that  the  percentage  should  be 

'^Ibid.,  s.  95(1). 
*'Ibid.,  s.  95(2). 
"Ibid.,  s.  108. 


2156  The  Workmen's  Compensation  Board 

something  in  the  nature  of  interest  on  the  unpaid  amount. 
If  this  is  the  case,  it  should  be  prescribed  by  regulations  and 
not  by  a  decision  of  the  Board  on  an  ad  hoc  basis. 

Classification  of  Employers 

As  we  have  said,  there  are  two  broad  powers  of  classifica- 
tion of  employers— those  falling  within  Schedule  1  and  those 
falling  within  Schedule  2.  Those  falling  within  Schedule  2 
are  required  to  pay  compensation  individually. 

All  employers  who  come  within  Schedule  1  are  required 
to  contribute  to  the  accident  fund  from  which  compensation 
is  paid.  Not  all  employers  and  all  industries  come  within  the 
Act  nor  do  all  industrial  diseases.  Those  set  out  in  Schedule 
3  are  the  industrial  diseases  for  which  compensation  is  paid. 
Schedules  1 ,  2  and  3  were  originally  part  of  the  statute.  How- 
ever, in  1950  the  Board  was  authorized  to  make,  subject  to 
the  approval  of  the  Lieutenant  Governor  in  Council,  a  con- 
solidation and  revision  of  these  Schedules.  The  Board  may 
now  by  regulation,  subject  to  the  approval  of  the  Lieutenant 
Governor  in  Council,  reclassify  industries,  establish  other 
classes,  add  to  classes  and  exclude  trades,  employments,  occu- 
pations or  callings  for  the  time  being  included  under  the 
Act.^**  Subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council,  the  Board  may  declare  any  disease  to  be  an  industrial 
disease  and  may  amend  Schedule  3  accordingly.^^ 

We  are  not  concerned  here  with  how  these  powers  are 
exercised.  They  are  legislative  powers  and  their  exercise  is 
subject  to  the  approval  of  the  Lieutenant  Governor  in  Coun- 
cil. That  being  the  case,  regulations  passed  pursuant  thereto 
will  come  under  the  scrutiny  of  the  committee  of  the  Legis- 
lature provided  for  by  the  amendment  to  the  Regulations 
Act  made  in  1969.^' 

If  the  purpose  of  the  legislative  powers  to  classify  and 
reclassify  industries  is  to  provide  an  equitable  distribution 
of  the  liability  to  contribute  to  the  accident  fund  according  to 
the  hazards  of  industry,  this  should  be  clearly  stated  in  the 
Act. 


*Hhid.,  s.  86(1). 

"/&zrf.,  s.  116  (13). 

''"R.S.O.  1960,  c.  349,  as  amended  by  Ont.  1968-69,  c.  110. 


Chapter  130         2157 

The  language  of  the  Act  with  reference  to  the  sub- 
division of  classes  is  clear.  "Where  in  the  opinion  of  the 
Board  the  hazard  to  workmen"  varies  within  the  class,  the 
class  may  be  subdivided.^ ^  However,  there  is  the  provision 
that  this  may  be  done  by  the  Board  "where  for  any  other 
reason  it  is  deemed  proper  to  do  so."  These  words  may  have 
been  intended  to  eliminate  the  application  of  the  statutory 
guidelines  laid  down  by  the  antecedent  words.  They  may  or 
may  not  have  had  this  effect. ^^ 

This  power  to  subdivide  classes  of  industries  into  sub- 
classes or  groups  is  not  subject  to  the  approval  of  the  Lieu- 
tenant Governor  in  Council.  The  subdivision  of  classes  may 
be  as  important  as  the  original  classification  and  there  seems 
to  be  no  sound  reason  why  the  subdivision  ought  not  to  be 
subject  to  the  control  of  the  Lieutenant  Governor  in  Council. 
This  is  especially  true  if  the  Board  may  exercise  the  power 
for  any  reason  that  it  deems  proper  to  do  so. 

We  recommend  that  the  power  in  the  Board  to  sub- 
divide classes  of  industries  should  be  subject  to  the  approval 
of  the  Lieutenant  Governor  in  Council  and  that  the  words 
"for  any  other  reason  it  is  deemed  proper  to  do  so"  be  struck 
out. 

POWERS  OF  INVESTIGATION 

"(1)  The  Board  may  act  upon  the  report  of  any  of  its 
officers  and  any  inquiry  that  it  deems  necessary  to 
make  may  be  made  by  any  member  or  officer  of  the 
Board  or  by  some  other  person  appointed  to  make 
the  inquiry,  and  the  Board  may  act  upon  his  report 
as  to  the  result  of  the  inquiry. 

(2)  The  person  appointed  to  make  the  inquii-y  has  for 
the  purposes  of  the  inquiry  all  the  powers  con- 
ferred upon  the  Board  by  section  65."^^ 

The  powers  conferred  under  section  65  on  the  Board  are: 

"The  Board  has  the  like  powers  as  the  Supreme  Court  for 
compelling  the  attendance  of  witnesses  and  of  examining 


^R.S.O.  1960,  c.  437,  s.  86(2). 

-See  Brampton  Jersey  Enterprises  Limited  v.  The  Milk  Control  Bd.  of  Ont., 
[1956]  O.R.  1  and  Re  Ollmann  (1925),  57  O.L.R.  340. 
"R.S.O.  I960,  c.  437,  s.  75. 


2158         The  Workmen's  Compensation  Board 

them   under  oath,  and  compelling  the   production   of 
books,  papers,  documents  and  things. "^^ 

We  discuss  the  effect  of  these  two  sections  later  in  another 
aspect.  Read  together  they  confer  on  the  Board  and  "any 
member  of  the  Board  or  officer  of  the  Board  or  .  .  .  some  other 
person  appointed  to  make  the  inquiry"  extraordinary  and  far- 
reaching  powers.  The  Board  may  act  on  "any  inquiry  that  it 
deems  necessary  to  make  .  .  .".  There  is  no  limitation  on  the 
scope  of  the  inquiry. 

Curiously,  the  power  to  act  is  subsidiary  to  the  inquiry. 
This  should  be  reversed.  The  power  to  make  an  inquiry 
should  be  specifically  conferred  on  the  Board.  It  should  be 
exerciseable  if  so  authorized  by  the  Board,  by  a  member  of 
the  Board  or  officer  of  the  Board  or  any  person  appointed  by 
the  Board  to  make  the  inquiry  and  the  inquiry  should  be 
limited  to  the  purposes  of  the  Act. 

We  have  commented  repeatedly  on  the  conferring  of  the 
powers  of  the  Supreme  Court  on  those  conducting  the  in- 
quiries contemplated  by  this  Act.  Merely  to  state  that  an 
officer  of  the  Board  or  any  other  person  appointed  to  conduct 
an  inquiry  should  have  power  over  the  liberty  of  the  subject 
and  power  to  commit  for  contempt  is  sufficient  to  condemn 
the  provision. 

The  recommendation  we  made  in  Report  Number  P' 
with  respect  to  powers  of  committal  for  contempt  applies 
with  emphasis  here. 

Sections  75  and  65  should  be  repealed  and  replaced  by 
sections  conferring  proper  powers  of  inquiry  limited  to  the 
purposes  of  the  Act  with  powers  in  the  Board  to  delegate 
its  powers  of  investigation  in  proper  cases.  A  right  to  apply 
to  the  Supreme  Court  for  an  order  to  enforce  the  attendance 
of  witnesses  and  compelling  them  to  give  evidence  and  to 
produce  documents  and  things  should  be  provided. 

In  addition  to  the  powers  of  inquiry  which  we  have  been 
discussing,  the  Board  may  require  statements  with  respect  to 
wages  earned  by  employees,  etc.  "and  such  additional  infor- 
mation as  the  Board  may  require."^® 

^'Ibid.,  s.  65. 

^^p.  446  supra. 

''"R.S.O.  1960,  c.  437,  s.  92(1). 


Chapter  130         2159 

Here  again,  this  power  to  recjiiire  information  should  be 
limited  to  the  purposes  of  the  Act  as  is  the  recjuirement  to 
keep  an  accurate  accoiuit  of  charges  paid.^^ 

If  an  employer  fails  to  comply  with  the  requirements  to 
furnish  information  he  is  liable  to  a  fine  of  not  more  than 
$500  and  "default  or  delay  in  furnishing  any  such  statement 
or  insufficiency  of  estimate  of  expenditure  for  wages  also 
renders  the  employer  liable  to  pay  an  additional  percentage 
of  assessment  or  to  pay  interest,  as  fixed  by  the  Board. "^^ 

Where  there  is  default  in  pro\iding  the  required  infor- 
mation the  Board  should  have  power  to  make  an  assessment 
on  the  basis  of  such  information  as  it  may  be  able  to  get  in 
the  exercise  of  its  powers  and  it  should  have  power  to  require 
the  delinquent  employer  to  pay  interest  but  the  levy  of  "an 
additional  percentage  of  assessment"  is  a  double  penalty.  The 
employer  may  be  punished  in  the  ordinary  courts  by  a  fine  of 
$500  on  a  summary^  conviction  and  he  may,  in  addition,  be 
penalized  by  the  Board.  The  Board  should  not  have  power  to 
levy  an  additional  percentage  of  assessment  for  the  same 
default. 

We  have  already  discussed  the  pow  er  of  the  Board  to  levy 
penalties.^''  As  we  have  pointed  out,  the  Board  should  not 
have  an  unlimited  power  to  fix  the  additional  percentage  of 
assessment  or  the  rate  of  interest.  If  the  Board  is  to  have 
power  to  levy  an  additional  assessment  or  interest  as  an  alter- 
native to  prosecution  a  standard  should  be  set  either  in  the 
Act  or  by  regulation  made  by  the  Lieutenant  Governor  in 
Council  limiting  the  power  of  the  Board. 

The  Board  or  any  member  of  it  or  any  officer  or  person 
authorized  by  it  for  that  purpose  may  examine  books  and 
accounts  of  the  employer  and  make  such  other  inquiry  as  the 
Board  may  deem  necessary  for  the  purpose  of  ascertaining 
w^hether  any  statement  furnished  to  the  Board  under  the  Act 
is  an  accurate  statement.^" 

The  Board  and  the  person  so  appointed  have  all  the 
powers  that  may  be  conferred  on  a  commissioner  under  the 

^'Ibid.,  s.  92(3). 

^'Ibid.,  s.  92(6). 

"p.  2152  fi.  supra. 

""R.S.O.  1960,  c.  437,  s.  94(1). 


2160         The  Workmen's  Compensation  Board 

Public  Inquiries  Act.'^^  These  powers  may  or  may  not  in- 
clude powers  of  committal.  This  we  discussed  in  Report 
Number  1.^^  But  they  do  not  include  the  wide  powers  of  the 
Supreme  Court  conferred  on  the  Board  or  a  person  appointed 
to  conduct  an  inquiry  under  section  75  which  we  have  already 
discussed. 


Summons  of  Witnesses  and  Production 

We  discussed  this  subject  fully  in  Report  Number  l.*'^ 
What  we  said  there  applies  to  the  Act  we  are  now  consider- 
ing. No  specific  form  of  summons  or  subpoena  is  provided 
in  the  Act  or  regulations.  It  is  important  that  such  a  form  be 
prescribed  so  that  the  person  who  is  summoned  will  know  the 
nature  of  the  proceedings. 

Similarly,  a  demand  for  the  production  of  documents 
should  specify  the  purpose  of  the  inquiry  and  the  nature  of 
the  documents  required. 

No  right  to  witness  fees  is  set  out  in  the  Act.  There 
should  be  specific  provision  for  witness  fees  as  we  recom- 
mended in  Report  Number  1.®^ 

Power  to  Enter,  Search  and  Seize 

The  power  conferred  by  the  Act  to  examine  books  may 
imply  an  intention  that  there  is  a  right  to  enter  premises  for 
the  purpose  of  the  examination  of  the  books. ®^  A  specific 
right  to  "enter  and  search"  and  "to  seize"  is  conferred  where 
authorized  by  an  order  of  a  judge  of  a  county  or  district  court. 
For  convenience,  the  authority  to  grant  such  an  order  should 
be  vested  in  a  provincial  judge.  In  Report  Number  1  we 
recommended  that  unless  the  purposes  of  the  statute  would 
be  frustrated  judicial  approval  should  be  a  condition  prece- 
dent to  a  power  to  enter,  search  and  seize. ^®    The  primary 

"Uhid.,  s.  94(1). 

'-pp.  385  and  432  supra. 

"'p.  40 Iff  5wpra. 

'*pp.  405ff.  and  86 Iff,  supra. 

"R.S.O.  1960,  c.  437,  s.  94. 

"p.  422  supra. 


Chapter  130         2161 

purpose  of  the  power  to  enter  which  we  are  now  discussing 
is  to  get  information  from  books.  Therefore,  the  requirement 
that  there  should  be  judicial  approval  is  a  proper  one. 

However,  the  Act  is  silent  as  to  what  information  must 
be  put  before  the  judge  before  he  makes  the  order.  In  Report 
Number  1  we  said:  "While  powers  of  entry  are  a  necessary 
part  of  many  types  of  modern  legislation,  they  ought  to  be 
sparingly  dispensed  by  the  Legislature  and  always  with  proper 
safeguards. ""^^  What  we  said  with  respect  to  powers  of  entry 
applies  with  greater  force  to  powers  of  seizure. ^^ 

We  doubt  very  much  whether  a  power  of  seizure  is  at  all 
necessary  for  the  purposes  of  the  Act.  Where  the  Board  has 
power  to  demand  information  and  to  enter  and  examine 
books  and  accounts,  together  with  wide  powers  of  assessment, 
it  is  hard  to  see  why  pow'er  to  seize  is  necessary  at  all. 

If  copies  of  books  and  records  made  by  the  Board  were 
made  admissible  as  evidence  any  possible  necessity  for  seizure 
would  be  eliminated. 

If  the  power  to  seize  is  intended  for  the  preservation  of 
evidence,  a  provision  such  as  that  contained  in  the  Ontario 
Energy  Board  Act^^  would  be  sufficient  to  accomplish  the 
purpose.  This  provision  gives  permission  to  remove  docu- 
ments for  the  purpose  of  photographing  them  and  requires 
their  return  with  reasonable  dispatch. 

If  it  can  be  demonstrated  that  the  power  of  seizure  is  at 
all  necessary  for  the  purposes  of  the  Board  there  should  be  a 
requirement  that  it  be  made  to  appear  to  the  judge  issuing 
the  order  that  there  are  reasonable  grounds  to  believe  that  a 
sufficient  examination  of  the  books  and  accounts  of  the  em- 
ployer cannot  be  made  unless  they  are  seized  and  taken  away 
or  that  there  are  reasonable  grounds  to  believe  that  an  offence 
under  the  Act  has  been  committed  and  the  books  and  records 
wall  afford  evidence  of  the  offence,  and  that  the  books  and 
accounts  are  located  on  certain  specific  premises. 

There  should,  in  any  case,  be  a  statutory  right  to  the 
return  of  the  books  within  a  reasonable  time. 


'p.  413  supra. 
*p.  419  supra. 
*Ont.  1964,  c.  74,  s.  51. 


2162         The  Workmen's  Compensation  Board 

USE  OF  INFORMATION  OBTAINED 
ON  AN  INQUIRY 

In  Report  Number  1  we  said: 

"The  nature  and  scope  of  restrictions  on  the  communication 
of  information  obtained  through  the  exercise  of  statutory 
powers  of  investigation  is  important,  but  of  greater  impor- 
tance is  the  fact  that  in  many  statutes  conferring  the  widest 
powers  to  investigate  and  obtain  information,  [which  may  be 
of  a  very  private  and  secret  character]  there  are  no  restric- 
tions whatever  on  the  communication  of  the  information 
obtained."'*^ 

Where  information  is  obtained  pursuant  to  the  exercise 
of  statutory  powers  of  investigation  it  is  recognized  that  the 
communication  of  that  information  beyond  the  purposes  of 
the  relevant  statute  and  the  administration  of  justice  should 
be  restricted, "^^ 

The  Act  we  are  considering  provides  that  no  officer  of 
the  Board  and  no  person  authorized  to  make  an  inquiry  shall 
divulge,  except  in  the  performance  of  his  duties  or  under  the 
authority  of  the  Board,  any  information  obtained  by  him  in 
connection  with  the  inquiry."-  This  is  not  a  sufficient  safe- 
guard against  the  infringement  on  the  civil  rights  of  the  indi- 
vidual that  the  disclosure  of  information  might  occasion.  The 
prohibition  "except  in  the  performance  of  his  duties"  sug- 
gests that  disclosure  would  be  related  to  the  administration  of 
the  Act.  But  there  is  a  further  exception— the  disclosure  may 
be  authorized  by  the  Board.  The  power  to  so  authorize  is 
nowhere  qualified  and  would  appear  to  permit  the  Board  to 
authorize  a  disclosure  that  was  not  related  to  the  administra- 
tion of  the  Act. 

The  Act  should  be  amended  to  prohibit  such  disclosures 
beyond  the  purposes  of  the  administration  of  the  Act  and  the 
administration  of  justice. 

PROCEDURE 

We  have  had  occasion  to  comment  from  time  to  time  on 
the  lack  of  procedural  provisions  relative  to  certain  decision- 

""p.  461  supra. 
"p.  462  supra. 
^'R.S.O.  1960,  c.  437,  s.  97. 


Chapter  130         2163 

making  powers.  Throughout  the  Act  there  is  a  dearth  of  pro- 
cedural safeguards  for  the  rights  of  those  affected  by  decisions 
made  under  it.  There  are  certain  provisions  respecting  the 
requirements  that  have  to  be  met  in  order  to  have  the  Board 
consider  the  question  of  compensation^^  but  there  are  no 
procedural  provisions  requiring  information  to  be  given  to  a 
workman  or  an  employer  of  what  rights  he  may  have  to  make 
representations  to  those  exercising  powers  of  decision  or 
requiring  notice  to  be  given  before  a  decision  is  made. 

By  a  purported  delegation  of  its  powers  the  Board 
has  adopted  a  somewhat  elaborate  internal  procedure  making 
provision  for  four  different  levels  in  the  decision-  making  pro- 
cess. In  so  doing  the  Board  has  relied  on  the  following 
provision  of  the  Act  to  which  we  referred  earlier: 

"The  Board  may  act  upon  the  report  of  any  of  its  officers 
and  any  inquiry  that  it  deems  necessary  to  make  may  be  made 
by  any  member  or  officer  of  the  Board  or  by  some  other 
person  appointed  to  make  the  inquiry,  and  the  Board  may 
act  upon  his  report  as  to  the  result  of  the  inquiry. '"^"^ 

This  is  primarily  an  enabling  provision.  It  does  not  confer 
an  express  power  to  delegate  the  power  of  decision  to  any  of 
the  various  departments  or  persons  concerned  with  the  oper- 
ations of  the  Board.  The  result  is  that  all  the  decisions  not 
made  by  the  Board  itself  but  made  at  a  lower  level  in  the 
hierarchy  of  the  decision-making  process  are  of  doubtful  legal 
validity,  since  there  is  no  express  power  conferred  on  those 
makinsf  the  decisions  to  make  them.  In  claims  matters  this 
would  comprise  approximately  95%  of  the  claims  considered. 

To  comprehend  properly  the  decision-making  process 
and  why  its  structure  is  as  it  is,  one  must  consider  the  volume 
of  claims.  We  were  advised  that  the  claims  that  must  be  con- 
sidered in  a  year  amount  to  over  375,000.  These  may  involve 
approximately  2-million  separate  decisions.  It  is  of  inmost 
importance  that  the  initial  claim  be  dealt  with  promptly  and 
that  cheques  for  compensation,  where  payable,  be  got  out 
promptly  to  the  injured  workman  or  his  dependants. 

The  Board  has  set  up  for  its  own  convenience  and  the 
convenience  of  those  making  claims  a  hierarchical  pyramid  of 

"/&id.,  ss.  21,  22  and  s.  115,  as  amended  by  Ont.  1968,  c.  143,  s.  21. 
''Ibid.,  s.  75(1). 


2164  The  W orkmeri  s  Compensation  Board 

authority  to  consider  and  reconsider  claims.  There  are  four 
tiers  in  the  hierarchy.  On  the  following  page  we  reproduce  a 
descriptive  chart  taken  from  the  recent  Report  of  The  Honour- 
able Mr.  Justice  McGillivray.^^ 

In  the  reproduction  of  the  chart  we  have  not  adopted  the 
caption  originally  attached  to  it:  "Appeal  Structure". 

The  Claims  Department 

A  claim  is  first  considered  in  the  Claims  Department, 
which  is  the  first  level  of  the  tier.  This  department  is  broken 
up  into  ten  units,  each  of  which  has  a  unit  leader  and  chief 
medical  adviser  and  approximately  ten  claims  adjudicators. 
(We  think  they  would  more  accurately  be  described  as  ad- 
justers.) 

When  a  claim  comes  before  a  claims  adjudicator  he 
attempts  to  make  a  decision  as  to  what  compensation,  if  any, 
the  workman  is  entitled  to  under  the  Act.  If  the  matter  is  a 
difficult  one  the  adjudicator  may  refer  it  to  a  member  of  the 
legal  staff  or  the  medical  staff  of  the  Board  or  he  may  refer  it 
to  one  or  more  of  the  experienced  supervisors  or  assistant 
supervisors. 

Twenty-two  investigators  are  associated  with  the  Claims 
Department  to  assist  in  gathering  information  concerning 
claims. 

When  a  decision  has  been  reached  the  claimant  is  advised 
of  the  decision  and  is  advised  of  his  right  to  appeal  the  deci- 
sion, if  adverse,  to  the  Review  Committee.  Where  an  appeal 
is  received  with  such  additional  evidence  contained  therein 
as  will  permit  an  immediate  reversal  of  the  decision,  the 
Administrative  Department  (i.e.  tne  original  Claims  Depart- 
ment) concerned  readjudicates  the  matter  in  the  light  of  the 
new  evidence.  Where  the  Administrative  Department  is  un- 
able to  reach  a  favourable  adjudication  in  spite  of  the  addi- 
tional evidence  the  matter  is  referred  to  the  Review  Com- 
mittee for  adjudication. 

The  two  most  frequent  reasons  for  seeking  review  are 
the  denial  of  the  claim  or  the  insufficiency  of  the  amount 
allowed  for  compensation. 

""September  15,  1967,  59. 


Chapter  no         2165 


1st  level   administrative  departments 


ADMIN 
DEPTS^ 


MAKtIS  INITIAL 

INQUIRIES  AND 

INVCSTIGATIONS. 

MAKES  DECISION. 


LETTER 

ADVISES 

DECISION 

AND 

APPEAL 

PF-JOCEDURE 


t^  ASSESSMENT.  CLAIMS,   MEDICAL  &  REHABILITATION  MATTERS 


2nd  level    review  COMMITTEE 


REVIEW 
COMMITTEE 


DOES  NOT 

HOLD  HEARINGS. 

MAY  ORDER: 

INQUIRIES 

INVESTIGATION. 

MAKES  DECISION. 


LETTER 

ADVISES 

DECISION 

AND 

APPEAL 

PROCEDURE 


3rd  level    APPEAL  TRIBUNAL 


APPEAL 
TRIBUNAL 


MAY    HOLD  VIVA 
VOCE  HEARINGS. 

REPRESENTATION 
PERMITTED. 

MAKES  DECISION. 


LETTER 
ADVISES 
DECISION 


4th   LEVEL    THE  BOARD 


THE 
BOARD 


MAY  ORDER: 

INQUIRIES 

INVESTIGATIONS. 

MAY   REFER  TO 
MEDICAL  REFEREE. 

HOLDS  HEARINGS. 

MAKES  DECISION. 


LETTER 

ADVISES 

DECISION 


2166         The  Workmen's  Compensation  Board 

The  Review  Committee 

The  Review  Committee  consists  of  nine  members  who 
have  had  long  experience  with  the  Board.  Its  powers  are 
stated  to  be: 

(1)  Enquire  into  and  determine  any  matter  by  way  of 
appeal  from  the  decisions  of  all  administrative  departments. 

(2)  Require  the  attendance  before  it  of  any  employee  of 
the  Board  on  any  matter  coming  within  the  purview  of  the 
Review  Committee. 

(3)  On  receipt  of  such  additional  information  as  will  per- 
mit a  reversal  of  the  decision  to  reconsider  any  matter  and 
to  rescind,  alter  or  amend  any  decision  previously  made 
by  it  in  such  matter. 

The  procedures  laid  down  by  the  Board  to  be  followed 
by  the  Review  Committee  are  as  follows: 

(1)  It  shall  be  the  responsibility  of  the  Director  to  allocate 
matters  coming  before  the  committee  to  sub-committees  of 
at  least  two  members  for  adjudication. 

(2)  In  the  event  of  disagreement  between  sub-committee 
members,  the  Director  or  his  Deputy  shall  act  as  a  third 
member  of  the  sub-committee  and  the  decision  of  two  mem- 
bers shall  be  binding. 

(3)  A  dissenting  member  of  a  sub-committee  shall  state  his 
reasons  for  such  dissent  in  writing  and  the  dissent  shall  be 
placed  upon  the  file. 

(4)  The  Review  Committee  shall  have  the  right  to  use  the 
investigatory  facilities  of  one  or  more  of  the  administrative 
departments  in  order  to  reach  its  decision.  Normal  cor- 
respondence, however,  shall  be  carried  on  by  the  Secretary 
of  the  Review  Committee. 

(5)  The  Secretary  of  the  Review  Committee  shall  com- 
municate the  decisions  of  the  Committee  to  all  parties  con- 
cerned with  full  explanation  of  the  right  and  procedure  of 
appeal. 


Chapter  no         2167 

The  Appeal  Tribunal 

The  Appeal  Tribunal  consists  of: 

a  chief  of  the  Tribunal, 

a  deputy  chief  of  the  Tribunal  who  will  act  as  secretary, 

a  legal  member,  and 

a  medical  member. 

Purporting  to  act  under  section  75  of  the  Act  the  Board 
delegates  the  following  powers  to  the  Appeal  Tribunal:''^  To 

"(i)  Hear  and  determine  all  appeals  from  Review  Committee 
decisions. 

(ii)  Hear  and  determine  any  matter  referred  to  it  by  the 
Board. 

(iii)  Adjudicate  by  way  of  viva  voce  hearings  on— 

(a)  referral  from  Review  Committee 

(b)  its  own  motion 

(c)  request  of  any  party  to  a  matter 

(d)  by  order  of  the  Board. 

(iv)  Compel  the  attendance  of  witnesses  and  to  examine 
them  under  oath,  and  to  compel  the  production  of  books, 
papers,  documents  and  things. 

(v)  Order  the  attendance  of  any  member  of  the  staff  before  it 
with  respect  to  any  matter  coming  within  its  jurisdiction. 

(vi)  The  Appeal  Tribunal  shall  have  the  right  to  use  the 
investigatory  facilities  of  one  or  more  of  the  administrative 
departments  in  order  to  reach  its  decision.  Normal  corre- 
spondence, hoAv^ever,  shall  be  carried  on  by  the  Secretary  of 
the  Appeal  Tribunal. 

(vii)  On  receipt  of  such  additional  evidence  as  will  permit  a 
reversal  of  the  decision  to  reconsider  and  alter,  amend  or 
rescind  any  order  previously  made  by  it." 

The  following  procedure  has  been  laid  down  and  set  out. 

"(i)   Viva  Voce  Hearings 

(a)  Location  —  These  hearings  shall  be  held  at  the 
Board's  Head  Office  in  Toronto  or  at  such  other 
location  as  the  Tribunal  may  from  time  to  time 
determine. 


'We  have  already  referred  to  the  frailty  of  the  legal  foundation  for  this 
purported  delegation,  p.  2163  supra. 


2168  The  Workmen's  Compensation  Board 

(b)  A  quorum  o£  the  Tribunal  shall  be  three  and  the 
Chief  of  the  Tribunal  shall  designate  the  personnel 
for  each  hearing. 

(c)  All  viva  voce  proceedings  shall  be  recorded  by  a 
chartered  shorthand  reporter  and  the  transcript 
obtained  except  where  no  witnesses  are  called  it 
shall  be  in  the  discretion  of  the  Tribunal  as  to  the 
necessity  of  recording  any  argument  which  may  be 
presented. 

(d)  All  evidence  shall  be  taken  under  oath. 

(e)  The  purpose  of  a  hearing  is  to  arrive  at  the  true 
facts  with  respect  to  the  matter  being  adjudicated 
and  the  decisions  of  the  Tribunal  shall  be  upon  the 
real  merits  and  justice  of  the  case  and  the  Tribunal 
shall  not  be  bound  to  follow  strict  legal  precedent. 

(f)  All  parties  shall  have  the  right  to  present  argument. 

(ii)    Adjudication  other  than  viva  voce  hearings 

(a)  It  shall  be  the  responsibility  of  the  Chief  to  allocate 
matters  coming  before  the  Tribimal  under  this  sec- 
tion to  sub-tribunals  of  at  least  two  members  for 
adjudication. 

(b)  In  the  event  of  disagreement  between  sub-tribunal 
members,  the  Chief  or  his  Deputy  shall  act  as  a  third 
member  of  the  sub-tribimal  and  the  decision  of  two 
members  shall  be  binding. 

(iii)  General 

(a)  Reasons  for  judgment  shall  be  completed  by  the 
Tribunal  with  respect  to  each  adjudication  and  the 
decision  shall  be  signed  by  the  Tribunal  members 
sitting  on  the  appeal. 

(b)  In  the  event  of  a  dissenting  vote,  the  dissenting 
member  of  the  Tribunal  shall  state  his  reasons  for 
the  same  in  writing.  The  dissenting  reasons  shall  be 
placed  upon  the  file. 

(c)  The  Secretary  shall  notify  all  parties  of  the  decision 
of  the  Tribunal  and  shall  forward  the  file  for  neces- 
sary action  to  the  department  concerned. 

(d)  The  parties  are  to  be  advised  of  their  right  of  appeal 
to  the  Board. 

(e)  The  appointment  of  a  medical  referee  under  the 
provisions  of  Section  23  is  specifically  reserved  to  the 
Board.'"^^ 


'Statement  of  Appeal  Procedures  supplied  by  the  Workmen's  Compensation 
Board. 


Chafjler  no         2169 

In  the  control  of  its  own  processes  the  Appeal  Tribinial 
may  decide  to  hold  xnva  voce  hearings,  examine  witnesses  and 
consider  the  material  in  the  file. 

The  practice  is  to  take  all  the  evidence  at  xnva  voce  hear- 
ings imder  oath.  It  does  not  appear  that  a  claimant  may  com- 
pel a  viva  voce  hearing  but  if  one  is  held  he  is  given  the  right 
to  be  present  and  to  present  arguments. 

Reasons  for  a  decision  are  prepared  and  placed  on  file 
along  with  any  dissent.  The  parties  are  notified  of  the  deci- 
sion and  it  is  said  that  the  practice  is  to  advise  them  of  the 
right  to  appeal  to  the  Board.  Representations  have  been 
made  to  us  that  this  practice  is  not  always  followed.  We  are 
not  concerned  whether  the  complaints  that  are  made  are  well 
founded  or  not.  It  is  a  practice  that  should  be  followed  in 
eveiy  case. 

The  procedure  before  the  Appeal  Tribunal  has  been 
criticized  on  the  ground  that  the  workman  is  not  permitted 
to  have  access  to  all  the  material  on  which  the  Appeal  Tri- 
bunal may  base  its  decision.  He  is  given  a  summary  of  medical 
reports  and  other  matters.  We  deal  with  this  subject  later 
when  discussing  medical  reports  and  the  statutory  provisions 
with  respect  thereto. 

The  Board 

On  an  appeal  to  the  Board  it  may  exercise  any  of  the 
powers  conferred  on  it.  For  convenience  we  set  out  in  full 
the  sections  of  the  Act  defining  the  relevant  powers  and  those 
relating  thereto. 

"13.  No  action  lies  for  the  recovery  of  compensation  whether 
it  is  payable  by  the  employer  individually  or  out  of  the 
accident  fund,  but  all  claims  for  compensation  shall  be 
heard  and  determined  by  the  Board. "'^ 

"72.  (1)  The  Board  has  exclusive  jurisdiction  to  examine 
into,  hear  and  determine  all  matters  and  questions 
arising  under  this  Part  and  as  to  any  matter  or 
thing  in  respect  of  which  any  power,  authority  or 
discretion  is  conferred  upon  the  Board,  and  the 
action  or  decision  of  the  Board  thereon  is  final  and 
conclusive  and  is  not  open  to  question  or  review  in 


^R.S.O.  1960,  c.  437,  s.  13. 


2170         The  Workmen's  Compensation  Board 

any  court  and  no  proceedings  by  or  before  the 
Board  shall  be  restrained  by  injunction,  prohibition 
or  other  process  or  proceeding  in  any  court  or  be 
removable  by  certiorari  or  otherwise  into  any  court. 

(2)  Without  limiting  the  generality  of  subsection  1, 
such  exclusive  jurisdiction  extends  to  determining, 

(a)  whether  any  industry  or  any  part,  branch  or 
department  of  any  industry  falls  within  any  of 
the  classes  for  the  time  beins^  included  in 
Schedule  1,  and,  if  so,  which  of  them; 

(b)  -whether  any  industry  or  any  part,  branch  or 
department  of  any  industry  falls  wathin  any  of 
the  classes  for  the  time  being  included  in 
Schedule  2,  and,  if  so,  which  of  them; 

(c)  whether  any  part  of  any  such  industry  consti- 
tutes a  part,  branch  or  department  of  an  indus- 
try within  the  meaning  of  this  Part. 

(3)  Nothing  in  subsection  1  prevents  the  Board  from 
reconsidering  any  matter  that  has  been  dealt  with 
by  it  or  from  rescinding,  altering  or  amending  any 
decision  or  order  previously  made,  all  of  which  the 
Board  has  authority  to  do. 

(4)  The  decisions  of  the  Board  shall  be  upon  the  real 
merits  and  justice  of  the  case,  and  it  is  not  bound 
to  follow  strict  legal  precedent.""^ 

Apart  from  the  question  of  its  legal  validity,  the  adminis- 
trative scheme  adopted  by  the  Board  is  generally  consistent 
with  the  recommendations  made  in  Report  Number  1  con- 
cerning a  hierarchy  of  tribunals.  ^°  There  we  discussed  briefly 
and  referred  to  the  decision-making  procedure  with  w^hich  we 
have  just  been  dealing  in  greater  detail.  We  said: 

"The  establishment  of  such  a  hierarchy  Avas  necessary  to  dis- 
pose of  the  volume  of  claims.  Such  a  hierarchy  may  be 
established  in  two  ways.  The  statute  may  directly  confer 
power  on  Claims  Officers,  the  Review  Committee,  the  Appeal 
Tribimal,  as  "\vt11  as  on  the  W^orkmen's  Compensation  Board. 
Alternatively,  the  poAver  of  decision  may  be  conferred  on  the 
Workmen's  Compensation  Board,  wath  power  given  to  it  to 
delegate  powers  of  decision  to  subordinates.  In  our  opinion, 
where  judicial  power  is  to  be  exercised  by  a  hierarchy  of 
tribunals,  the  statute  should  establish  them  directly. 

'^Ibid.,  s.  72. 
""p.  n^  supra. 


Chapter  130         2171 

In  general,  the  principles  providing  for  independence  and 
impartiality  of  single  tribunals  should  apply  to  each  tribunal 
in  a  hierarchy  of  judicial  tribiuials.  Considerations  of  exj)edi- 
tion,  informality  and  economy  may,  however,  justify  a 
departure  from  the  principle  that  po^vers  of  investigation 
should  not  be  combined  with  powers  of  decision  with  respect 
to  initial  or  even  secondary  tribunals  in  the  hierarchy,  as  in 
the  case  of  claims  for  \Vorkmen's  Compensation,  if  provision 
is  made  for  the  matter  for  decision  to  come  at  some  stage 
before  a  properly  constituted  tribunal  to  which  these 
principles  and  rules  arc  fully  applicable."*'' 

When  we  have  said  that  the  principle  of  the  hierarchy 
of  tribunals  is  generally  consistent  with  our  recommendations 
we  wish  to  make  it  clear  that  it  does  not  come  within  the 
Terms  of  Reference  of  this  Commission  to  consider  com- 
plaints as  to  how  the  duties  assigned  to  the  different  bodies 
are  carried  out.  We  are  concerned,  how^ever,  -vvith  whether 
sufficient  safeguards  are  provided  for  the  benefit  of  those 
affected  by  the  decisions  made. 

In  1967  The  Honourable  Mr.  Justice  McGillivray  dealt 
with  the  decision-making  process  in  the  Report  of  the  Royal 
Commission  over  which  he  presided  "In  the  Matter  of  the 
Workmen's  Compensation  Act"^-  and  it  is  not  our  function 
to  sit  in  review  on  what  was  said  there. 

We  are  particularly  concerned,  how^ever,  with  two 
matters: 

(1)  that  the  processes  of  the  Board  continue  to  be  investi- 
gatory in  nature,  and 

(2)  that  in  the  decision-making  process  all  workmen, 
whether  literate  or  illiterate,  union  members  or  non-union 
members  have  equal  opportunity  to  have  all  relevant  mat- 
ters considered  and  to  have  available  to  them  all  informa- 
tion necessary  to  make  a  full  presentation  of  their  cases 
before  a  final  decision  is  made. 

Some  representatives  of  labour  express  concern  that  the 
formality  of  the  hierarchy  of  tribunals  w^ill  tend  to  develop 
an  adversary  system  w^here  the  workman  will  be  ill-matched 
with  the  employer.    We  think  there  is  foundation  for  this 

"p.  125  supra. 
"p.  60. 


2172  The  Workmen's  Compensation  Board 

apprehension  and  that  adequate  safeguards  must  be  provided. 
Mr.  Justice  McGillivray  expressed  a  similar  view  in  his 
Report. ^^ 

The  whole  purpose  of  the  Act  is  to  provide  a  means  by 
which  loss  through  accident  caused  to  workmen  while  they 
are  engaged  in  the  process  of  production  or  rendering  serv- 
ices should  be  borne  as  a  cost  of  production  or  of  the  render- 
ing of  the  services  rather  than  by  the  unfortunate  workman 
or  his  dependants.  The  loss  occasioned  by  injury  to  the  work- 
man should  be  just  as  much  a  cost  of  production  as  the  repair 
of  a  machine. 

When  we  recognize  this,  the  emphasis  must  be  clearly 
on  the  investigatory  character  of  the  tribunal  in  the  hier- 
archy in  the  process  of  determining  w^hat  loss  has  been  occa- 
sioned. Otherwise  the  volume  of  claims  would  cause  such  a 
congestion  in  the  work  of  the  Board  as  to  destroy  its  use- 
fulness. 

It  is  most  important  that  in  the  first  consideration  of  a 
claim  the  investigation  should  be  as  full  and  complete  as 
possible.  Following  the  investigation  there  should  be  a  rec- 
ommendation, a  copy  of  which,  with  written  reasons,  should 
be  furnished  to  the  workman  together  with  a  statement  that 
the  assistance  of  the  Workmen's  Adviser  (which  we  shall  dis- 
cuss later)  is  available  to  him  in  considering  whether  he 
should  accept  the  recommendation  with  respect  to  the  claim. 

If  the  recommendation  is  accepted,  the  acceptance  should 
ha\'e  the  effect  of  a  decision  of  the  Board. 

If  the  recommendation  is  not  accepted  by  the  claimant 
he  should  have  a  right  to  ask  for  a  further  investigation  and 
a  further  hearing  in  the  first  instance  in  order  to  clarify  or 
meet  any  ground  on  which  his  claim  has  not  been  recom- 
mended. On  this  investigation  all  matters  should  be  open  for 
full  consideration  and  a  final  recommendation  made  which, 
if  accepted,  would  have  the  effect  of  a  decision  of  the  Board. 

If  this  process  is  followed,  consideration  should  be  given 
to  abolishing  the  Review  Committee  and  permitting  a  direct 
application  from  the  Claims  Department  to  the  Appeal  Tribu- 
nal. If  the  Review  Committee  is  continued  the  claimant 
should  have  access  to  all  material  to  be  considered  by  it  and 

«'p.  60ff. 


Chapter  no         2173 

the  Review  Committee  should  exercise  wide  powers  of  investi- 
gation. It  should  hear  representations  and  witnesses  and  it 
should  not  confine  its  considerations  to  the  file,  llie  Review 
Committee  should,  in  its  turn,  make  its  reconnnendation  and 
if  its  recommendation  is  accepted  the  matter  should  end  there 
unless  reopened  by  the  Board.  If  it  is  not  accepted  the  matter 
should  be  heard  by  the  Appeal  Tribunal. 

On  a  hearing  before  the  Appeal  Tribunal  the  claimant 
should  have  access  to  all  matters  that  may  be  considered  by  the 
Appeal  Tribunal.  According  to  the  present  procedure  the 
claimant  may  be  given  a  summary  of  evidence  that  may  be 
considered  by  the  Appeal  Tribunal.  The  summary  of  evidence 
may  only  be  an  interpretation  of  what  has  been  said  or  what 
reports  have  been  considered  and  may  not  be  an  accurate 
interpretation.  We  shall  deal  more  fully  with  medical  reports 
presently. 

When  the  Appeal  Tribunal  has  come  to  a  decision  it 
should  give  written  reasons  and  the  claimant  should  be  noti- 
fied of  the  reasons  and  that  he  has  the  right  to  apply  to  the 
Board  for  a  decision.  What  we  have  said  with  regard  to  dis- 
closure applies  with  equal  force  to  a  hearing  before  the  Board. 

Medical  Reports 

One  area  of  difficulty  arises  with  respect  to  the  applica- 
tion of  minimum  rules  of  procedure  concerning  full  dis- 
closure insofar  as  they  would  apply  to  the  contents  of  medical 
reports.  Usually  a  hearing  can  only  be  meaningful  if  the 
claimant  has  a  real  opportunity  to  meet  the  case  against  him. 
If  the  dispute  is  over  an  accident  or  the  nature  of  disability  or 
whether  the  disablement  was  actually  caused  in  the  course  of 
employment  of  the  workman,  the  evidence  against  him  may 
largely  consist  of  medical  reports.  Therefore,  the  satisfaction 
of  the  requirement  with  respect  to  minimum  procedural 
rules  w^ould  dictate  that  these  be  made  available  to  the 
claimant. 

However,  the  co-operative  relationship  between  the 
Board  and  the  medical  profession,  without  whose  co-operation 
the  activities  of  the  Board  would  be  seriously  undermined, 
appears  to  be  based  on  the  Board's  practice  of  regarding  these 
reports    as    confidential   communications    and   not   open    to 


2174         The  Workmen's  Compensation  Board 

inspection.  Complaints  have  been  addressed  to  the  Commis- 
sion concerning  this  practice  and  arguments  advanced  con- 
tending that  the  prosecution  of  an  appeal  on  behalf  of  a  claim- 
ant is  made  difficult  because  of  this.  The  difficulty  appears  to 
arise  largely  out  of  an  apprehension  on  the  part  of  the  mem- 
bers of  the  medical  profession  that  they  may  be  exposed  to 
vexatious  actions  for  malpractice  arising  out  of  reports  made 
to  the  Board. 

In  order  to  mitigate  this  risk  the  Act  was  amended  in 
1968-69  to  provide: 

"97a.  Every  report  made  under  section  52  and  every  other 
report  made  or  submitted  to  the  Board  by  a  physician, 
surgeon,  hospital,  nurse,  dentist,  drugless  practitioner, 
chiropodist  or  optometrist  is  for  the  use  and  purposes 
of  the  Board  only,  is  deemed  to  be  a  privileged  com- 
munication of  the  person  making  or  submitting  the 
same,  and  unless  it  is  proved  that  it  was  made  malici- 
ously, is  not  admissible  as  evidence  or  subject  to 
production  in  any  court  in  an  action  or  proceeding 
against  such  person."^* 

The  effect  of  this  amendment  is  by  no  means  clear.  It 
provides  that  the  report  made  or  submitted  to  the  Board  by 
a  physician  ".  .  .  is  deemed  to  be  a  privileged  communication 
of  the  person  making  or  submitting"  it.  Does  this  mean  that 
no  report  received  by  the  Board  from  a  member  of  any  of  the 
professions  named  in  this  section  with  respect  to  a  patient  who 
has  consvilted  him  may  be  released  to  the  patient  without  the 
consent  of  the  person  making  the  report?  For  example,  if  a 
workman  has  consulted  his  own  physician  and  his  physician 
has  made  a  report  to  the  Board  is  the  workman  not  to  be 
entitled  to  have  a  copy  of  the  report  unless  the  physician 
desires  to  release  it?  Or  take  another  case.  A  workman  is 
injured  in  a  plant  and  he  is  attended  by  a  plant  doctor  who 
is  in  the  employ  of  his  employer.  The  plant  doctor  makes 
his  report  to  the  Board.  Is  the  workman  not  to  be  entitled  to 
have  a  copy  of  the  report  of  the  plant  doctor  who  has  attended 
him  so  that  he  may  consult  an  independent  physician? 

We  have  read  the  debates  in  the  Legislature  when  this 
amendment  to  the  Act  was  passed  and  there  seemed  to  be  a 

"R.S.O.  1960,  c.  437,  s.  97a  as  enacted  by  Ont.  1968-69  c.  140,  s.  2. 


Chapter  130         2175 

considerable  confusion  there  as  to  its  effect.  In  ihc  course  of 
the  debate  the  Minister  supporting  the  amendment  stated: 
"The  claimant's  doctor  receives  the  report."**^  That  may  or 
may  not  be  true.  Under  the  legislation  the  claimant's  doctor 
has  no  right  to  see  the  report  because  it  is  by  statute  the  privi- 
lege of  the  doctor  making  it.  Where  the  report  is  made  by 
a  plant  doctor  the  effect  of  the  statute  is  to  virtually  make  the 
report  the  privilege  of  the  employer.  The  amendment  appears 
to  be  based  on  a  recommendation  of  Mr.  Justice  McGillivray, 
but  the  legislation  is  not  in  accordance  with  his  Report. 

Mr.  Justice  McGillivray  discussed  the  matter  of  access 
to  Board  files  and  medical  reports  at  some  length. '*''  After 
examining  a  number  of  summaries  of  information  as  supplied 
to  claimants  with  respect  to  their  claims  and  on  which  the 
Board  had  based  decisions  he  concluded  that  those  examined 
contained  all  the  information  required  for  the  claimant  to 
prosecute  his  claim.  We  quote  in  part  from  Mr.  Justice 
McGillivray 's  Report: 

"The  union  representatives  complained  that  these  summaries 
were  not  sufficient,  partly  because  they  contain  medical 
language  difficult  for  the  layman  to  understand  but  chiefly 
because  the  furnishing  of  a  summary  falls  short  of  that  which 
is  felt  to  be  the  right  of  the  claimant,  namely,  to  have  made 
available  when  presenting  his  appeal  the  exact  information 
upon  which  the  claim  has  been  decided. 

Under  an  adversary  system,  which  this  is  not,  disclosure 
would  be  required.  If  directed  here  it  would  tend  to  open 
the  door,  partly  at  least,  to  the  system  to  which  all  say  they 
are  opposed.  The  claimant  Avould  query  the  opinions 
expressed  in  the  medical  reports  and  management's  repre- 
sentative in  turn  might  seek  to  answer  such  queries  or  might 
himself  object  to  the  medical  opinions  expressed.  As  matters 
stand  at  present  there  is,  as  between  the  Board  and  the 
medical  profession,  the  friendliest  of  relations.  The  lack  of 
confidence  and  co-operation  in  British  Columbia,  referred  to 
in  the  report  of  Mr.  Justice  Tysoe,  is  not  experienced  here. 
All  members  of  the  medical  profession,  I  think  it  is  safe  to 
say,  are  overworked  yet  they  appear  to  render  their  services 
willingly  at  the  request  of  the  Board  and  to  accept  therefor 
the  minimum  fee  provided  by  the  schedule  of  fees  of  the 

^^Legislature  of  Ontario  Debates,  1969,  6275. 

'^Report  of  the  Royal  Commission  in  the  Matter  of  the  Workmen's  Compen- 
sation Act  (1967),  71-3. 


2176         The  Workmen's  Compensation  Board 

Ontario  Medical  Association.  The  doctor  practising  in  a 
'company  town'  or  any  doctor,  for  that  matter,  might  be 
less  than  frank  in  his  report  to  medical  confreres  on  the 
Board  if  he  knew  that  his  report  was  later  to  be  furnished  to 
the  patient.  To  a  lesser  extent  the  same  applies  to  the 
specialist  who  might  resent  being  exposed  to  a  possible 
subsequent  controversy  with  the  person  whom  he  had 
examined  or  with  that  person's  lawyer.  The  result  would  be 
twofold— a  report  that  was  less  than  complete  and  a  possible 
reluctance  by  physicians  to  accept  compensation  cases.  Either 
result  would  be  unfortunate.  It  would  seem  to  me  that  these 
considerations  outweigh  the  reasons  advanced  for  change. 

Unfortunately  many  claimants  look  upon  the  Board  as  if 
it  were  an  adversary  and  opposed  to  paying  claims.  Some 
talked  of  the  Board  seeking  to  preserve  its  fund.  I  am  satisfied 
on  this  score  that  the  Board  sits  judicially  and  seeks  only  to 
weigh  the  scales  bet^veen  the  claimant  and  those  who  provide 
the  funds  for  payment.  It  can  for  itself  have  no  concern 
about  the  amoimt  awarded.  While  it  is  true  that  the  Board 
has  a  fund,  it  can  hardly  be  influenced  thereby  as  current 
payments  wnW  be  taken  care  of  by  an  assessment  against 
industry  rather  than  from  the  fund.  A  substantial  support  for 
this  view  is  that  the  Board  reports,  as  I  have  mentioned 
before,  that  about  96  per  cent  of  all  claims  are  paid,  which 
must  indicate  that  claimants  are  being  given  every  possible 
consideration. 

In  its  brief  the  Ontario  Medical  Association  extended  its 
disapproval  to  the  furnishing  even  of  summaries.  I  w^ould  not 
give  effect  to  that  submission.  The  present  practice  appears 
to  furnish  a  suitable  compromise  in  these  matters.  It  should 
also  be  pointed  out  that  any  claimant  is  free  to  consult  on 
his  own  whatever  professional  advice  he  chooses.  Reports 
from  such  sources  can  be  adduced  by  the  claimant  and  con- 
sidered on  appeal.  The  reasons  which  lead  me  to  recommend 
against  the  production  of  medical  reports  do  not  seem  to 
apply  to  x-ray  plates  and  reports  or  to  reports  on  post-mortem 
examinations.  They  should  he  made  available  upon  request 
of  the  claimant.  With  these  exceptions  I  recommend  no 
change  in  the  present  practice."^'^ 

"The  case  mentioned  raises  the  point,  however,  emphasized 
by  the  Ontario  Medical  Association,  namely  the  necessity  for 
giving  protection  to  the  doctor  if  reports  are  to  he  made 
available.  Should  my  recommendation  regarding  medical 
reports  not  meet  with  approval  and  should  they  be  made 
available  at  some  time  in  the  future  I  cannot  emphasize  too 


^Ubid.,  71-12.  Author's  italics. 


Chapter  IW         2177 

strongly  that  accompanying  legislation  at  tiiat  time  should 
give  protection  to  the  physician  by  making  his  rcj^ort  priv- 
ileged. A  failure  to  do  so  would,  I  believe,  seriously  handicap 
the  Board  in  securing  medical  services  for  its  injured 
claimants. "^^ 

It  is  (jtiite  clear  that  Mr.  Justice  McGillivray  considered 
that  the  legislation  making  a  physician's  report  privileged 
was  only  to  be  considered  if  the  reports  were  to  be  shown  to 
claimants.  He  clearly  recommended  that  the  present  practice 
of  showing  the  claimant  only  a  summary  of  the  medical  report 
be  continued.  But  if  that  recommendation  was  not  adopted 
then  he  recommended  that  there  should  be  legislation  making 
the  reports  privileged. 

If  it  was  only  intended  that  physicians,  hospitals,  nurses, 
dentists,  drugless  practitioners,  chiropodists  and  optometrists 
should  be  safeguarded  against  actions  for  malpractice  the 
statute  could  well  have  been  framed  to  say  so  in  clear  terms. 

We  do  not  question  the  right  of  a  professional  man 
making  a  report  to  the  Board  without  negligence  and  in  good 
faith  to  the  protection  the  law  affords  him.  But  we  ask  the 
question:  Why  should  a  member  of  any  of  the  enumerated 
professions  be  protected  against  actions  based  on  negligence 
with  respect  to  reports  to  the  Board  while  they  are  not 
protected  in  making  a  report  to  the  patient  or  his  insurance 
company?  The  exception  in  this  section  "iniless  it  is  proved 
that  it  was  made  maliciously"  is  not  very  meaningful.  It  would 
be  most  difficult  for  a  w'orkman  to  prove  that  a  report  was 
made  maliciously  unless  he  was  permitted  to  see  it. 

Under  this  section  as  it  now  is  the  Board  would  appear 
to  have  no  power  to  release  any  medical  reports  to  a  workman 
or  any  other  person,  including  another  physician,  without  the 
consent  of  the  reporting  physician.  This  not  only  could 
militate  against  proper  treatment  of  the  workman  and  his 
rehabilitation,  but  against  proper  assignment  of  work. 

If  it  is  thought  necessary  to  give  the  relevant  professions 
protection  against  malpractice  suits  arising  out  of  their  re- 
ports to  the  Board  the  legislation  should  so  state  in  clear 
language  and  not  by  way  of  creating  a  statutory  privilege.   On 

'^Ibid.,  73.  Italics  added. 


2178         The  Workmen's  Compensatioyi.  Board 

the  other  hand,  in  the  decision-making  process,  the  workman 
should  be  entitled  to  know  on  what  material  a  decision  in- 
\'olving  his  rights  is  based. 

APPEALS 

For  the  purpose  of  discussing  appeals,  the  decision-making 
powers  of  the  Board  may  be  dealt  with  conveniently  under 
the  following  heads: 

(1)  the  workman's  entitlement  to  compensation; 

(2)  the  amount  of  compensation; 

(3)  the  destination  of  compensation,  and 

(4)  classification  and  assessment  of  employers. 

The  first  three  categories  involve  judicial  decisions.  The 
fourth  is  substantially  an  administrative  decision. 

Workman's  Entitlement  to  Compensation 

The  workman's  entitlement  usually  concerns  the  ques- 
tion as  to  whether  the  injury  was  sustained  by  accident  arising 
out  of  and  in  the  course  of  his  employment  or  whether  the 
workman  suffered  from  a  relevant  industrial  disease,  and,  in 
some  cases,  whether  the  injui^  was  attributable  solely  to  the 
serious  and  wilful  misconduct  of  the  workman.  Coupled  with 
this  is  the  determination  of  the  question  as  to  whether  the 
workman  may  bring  an  action  in  the  ordinary  courts  with 
respect  to  the  injury  sustained. 

"Any  party  to  an  action  may  apply  to  the  Board  for  adjudica- 
tion and  determination  of  the  question  of  the  plaintiff's  right 
to  compensation  under  this  Part,  or  as  to  whether  the  action 
is  one  the  right  to  bring  which  is  taken  away  by  this  Part, 
and  such  adjudication  and  determination  is  final  and  con- 
clusive."^^ 

These  matters  are  so  essentially  matters  of  pure  law 
based  on  the  relevant  facts  that  there  should  be  some  recourse 
to  the  courts  for  final  determination.  If  there  be  such  a  re- 
course the  Board  and  those  affected  by  its  decisions  will  have 

^'R.S.O.  1960,  c.  437,  s.  16. 


Chapter  no         2179 

the  guidance  of  jurisprudence  in  deciding  cases.  There  would 
always  be  the  legislative  safeguard  that  if  the  decisions  of  the 
courts  are  inconsistent  with  the  intended  policy  of  the  Act, 
the  Act  could  be  amended  accordingly. 

We,  therefore,  reconuuend  that  the  Act  should  provide 
that  where  compensation  is  refused  on  grounds  other  than 
a  question  of  disability,  the  Board  should  be  empowered  to 
state  a  case  for  the  opinion  of  the  Divisional  Court  of  the 
High  Court  of  Justice''"  on  any  question  of  law  with  respect 
to  any  claim  by  a  workman.  If  the  Board  refuses  to  state  a  case 
the  applicant  should  have  a  right  to  apply  to  the  Court  for  an 
order  directing  that  it  do  so. 

Amount  of  Compensation 

The  existence  of  a  disability  and  the  extent  of  a  disability 
are  essentially  matters  for  decision  based  on  medical  evidence 
and  often  require  continuing  obsenation.  That  being  so, 
the  Board  with  its  experience  is  in  a  better  position  to  make 
a  final  decision  than  the  courts.  If  the  safeguards  against  error 
w^hich  we  have  recommended  are  adopted,  we  think  there 
should  be  no  appeal  to  the  courts  against  a  decision  of  the 
Board  concerning  the  existence  or  extent  of  a  disability. 

Destination  of  Compensation 

Matters  falling  under  this  head  are  only  incidentally 
related  to  compensation.  They  have  to  do  with  the  adminis- 
tration of  infants'  estates,  the  estates  of  incompetents  and  the 
maintenance  of  dependants. 

We  referred  earlier''^  to  the  provisions  of  the  Act  giving 
the  Board  broad  powers  to  direct  how  compensation  may  be 
paid  to  others  than  the  workman.^-  The  Board  is  given  power 
to  pay  compensation  to  a  parent,  spouse,  committee,  the  Pub- 
lic Trustee  or  "such  other  person"  or  it  may  be  applied  "in 
such  manner  as  the  Board  deems  in  the  best  interest  of  such 
workman  or  dependant  .  .  .".  If  the  workman  or  his  depend- 
ants are  dissatisfied  with  an  order  of  the  Board  concerning  the 

*°See  Bill  183,  1970,  3rd  session  and  see  recommendations  Chapter  44  stipra 

re  Appellate  Division  of  the  High  Court  of  Justice, 
"p.  2145  ff.  supra. 
""R.S.O.  1960,  c.  437,  s.  50  as  re-enacted  by  Ont.  1968,  c.  143.  s.  12. 


2180         The  Workmen's  Compensation  Board 

method  of  paying  the  compensation  there  is  no  relief.  There 
should  be  a  right  of  appeal  on  such  a  question  to  the  Divi- 
sional Court  of  the  High  Court  of  Justice  for  Ontario: 

Classification  and  Assessment  of  Employers 

Classifications  and  assessments  of  employers  are  essen- 
tially rating  matters.  They  concern  fair  apportionment  of  the 
cost  of  injuries  sustained  by  workmen  in  the  production  of 
goods  or  in  rendering  services.  They  concern  the  maintenance 
of  the  accident  fund.  In  this  area  an  appeal  to  the  courts 
would  not  be  appropriate.  The  question  remains:  Should 
there  be  a  right  of  appeal  to  the  Lieutenant  Governor  in 
Council  or  the  Minister? 

The  Lieutenant  Governor  in  Council  now  has  a  super- 
vising control  over  the  accident  fund.  He  may  direct  the 
Superintendent  of  Insurance  to  examine  into  the  affairs  and 
business  of  the  Board  for  the  purpose  of  determining  the  suffi- 
ciency of  the  accident  fund^^  and  he  may  direct  the  Board  to 
make  supplementary  assessments.^^ 

We  think,  notwithstanding  that  it  is  desirable  in  prin- 
ciple that  the  Board  should  be  independent  of  political  inter- 
ference, these  provisions  for  supervision  are  wise  and 
necessary.  Likewise,  we  think  that  justice  demands  that  there 
should  be  a  right  of  appeal  to  the  Minister  by  an  employer 
against  his  classification  or  any  special  assessment  imposed 
on  him. 

RESTRICTIONS  ON  JUDICIAL  REVIEW 

Three  sections  of  the  Act  require  particular  consider- 
ation with  respect  to  the  restrictions  purported  to  be  placed 
on  the  control  by  the  courts  over  the  decision-making  powers 
conferred  under  the  Act. 

"16.  Any  party  to  an  action  may  apply  to  the  Board  for 
adjudication  and  determination  of  the  question  of  the 
plaintiff's  right  to  compensation  under  this  Part,  or  as 
to  whether  the  action  is  one  the  right  to  bring  which 
is  taken  away  by  this  Part,  and  such  adjudication  and 
determination  is  final  and  conclusive. "^^ 

"^Ihid.,  s.  80. 
'*Ibid.,  s.  106. 
'"Ibid.,s.  16. 


Chapter  130         2181 

"72.  (1)  The  Board  has  cxchisive  jurisdiction  lo  exainine 
into,  hear  and  determine  all  matters  and  (juestions 
arising  under  this  Part  and  as  to  any  matter  or  thing 
in  respect  of  which  any  power,  authority  or  dis- 
cretion is  conferred  upon  the  Board,  and  the  action 
or  decision  of  the  Board  thereon  is  final  and  ton- 
elusive  and  is  not  open  to  question  or  review  in  any 
court  and  no  proceedings  by  or  before  the  Board 
shall  be  restrained  by  injunction,  prohibition  or 
other  process  or  proceeding  in  any  comt  or  be 
removable  by  certiorari  or  otherwise  into  any 
court. "^*' 

"23.  (2)  The  medical  referee  to  whom  a  reference  is  made 
imder  stibsection  1,  or  who  has  examined  the  work- 
man by  the  direction  of  the  Board  under  subsection 
I  of  section  22,  shall  certify  to  the  Board  as  to  the 
condition  of  the  workman  and  his  fitness  for  em- 
ployment, specifying  where  necessary  the  kind  of 
employment  and,  if  unfit,  the  cause  of  such  unfit- 
ness, and  his  certificate  unless  the  Board  otherwise 
directs  is  conclusive  as  to  the  matters  certified. "^'^ 

We  discussed  the  subject  of  statutory  restrictions  on 
judicial  review  fully  in  Report  Number  1."-^^  As  we  pointed 
out  there,  statutory  provisions  of  the  sort  we  have  just  quoted 
do  not  necessarily  prevent  access  to  the  courts  to  determine 
questions  of  ultra  vires.  A  tribunal  cannot  act  beyond  the 
powers  conferred  on  it  under  the  statute  and  at  the  same  time 
claim  the  benefit  of  the  provisions  which  purport  to  oust  the 
jurisdiction  of  the  court. 

In  Report  Number  1  we  said:  "The  most  secure  safe- 
guard for  the  civil  right  of  the  individual  to  have  his  rights 
determined  according  to  the  Rule  of  Law^  lies  in  the  inde- 
pendence of  review  by  the  courts. "^^  If  our  recommendations 
wath  respect  to  the  right  of  appeal  by  w^ay  of  stated  case  are 
accepted  this  safeguard  will  be  substantially  assured. 

In  Report  Number  1  we  recommended  that  all  clauses 
restricting  judicial  review  ought  to  be  repealed  and  that  none 
should  be  enacted  unless  it  can  be  demonstrated  that  most 
exceptional  circumstances  demand  it.^^*" 

""Ibid.,  s.  72(1). 
"'Ibid.,  s.  23(2). 
*«p.  267ff.  supra, 
""p.  279  supra. 
""p.  \267  supra. 


2182         The  Workmen  s  Compensation  Board 

We  think  this  recommendation  applies  to  the  first  two 
sections  above  quoted.  The  provisions  with  respect  to  the 
conclusive  character  of  a  medical  certificate  do  not  fall  within 
this  recommendation.  Such  a  certificate  is  an  evidentiary 
matter.  It  is  not  part  of  the  decision-making  process  and  the 
Board  may  accept  it  or  reject  it. 

WORKMEN'S  ADVISER 

Representations  were  made  to  us  concerning  the  in- 
equality of  the  position  of  the  workman  and  the  employer 
before  the  four  decision-making  bodies— the  Claims  Depart- 
ment, the  Review  Committee,  the  Appeal  Tribunal  and  the 
Board.  Some  employers  engage  special  representatives  who 
are  skilled  in  the  arrangement  and  presentation  of  material 
for  consideration.  On  the  other  hand,  usually  the  workman 
has  to  depend  on  the  representative  of  the  union  he  belongs 
to  or  if  he  does  not  belong  to  a  union  (in  Ontario  over  two- 
thirds  of  employees  covered  by  the  Act  are  not  members  of 
unions)  he  has  to  do  the  best  he  can  in  preparing  and  present- 
ing his  own  case.  Many  W'Orkmen  are  illiterate  and  cannot 
speak  the  English  language  and  if  they  can  they  are  unskilled 
in  the  meaning  of  special  terms  used  with  respect  to  illnesses 
or  injuries. 

It  was  stated  to  us  that  formerly  the  Vice-Chairman  of 
the  Board  did  much  to  meet  the  need  created  by  this  situation 
and,  in  addition,  he  acted  as  a  sort  of  Ombudsman  with  re- 
spect to  complaints  that  workmen  had  concerning  the  process- 
ing of  their  claims.  In  an  effort  to  meet  an  apparent  need  the 
office  of  Workmen's  Adviser  w-as  created  in  1966. 

Mr.  Justice  McGillivray  discussed  this  office  in  his 
Report. 

'The  present  adviser  is  an  employee  of  the  Board  and  has 
his  quarters  at  the  head  office  of  the  Board  in  Toronto.  He 
is  available  to  -workmen  for  consultation  and  advice  by  cor- 
respondence or  personal  intervie^v^  in  connection  with 
rejected  claims  and  the  preparation  of  appeals.  He  has  access 
to  all  files  and  medical  reports  in  the  possession  of  the  Board. 
He  may  not  disclose  actual  reports  to  the  -vvorkman  but 
advises  him  Avith  regard  to  tlie  substance  thereof.  The 
adviser  may  not  appear  at  an  appeal  hearing  to  represent  the 


Chapter  130         2183 

workman  or  to  question  \vitnesscs.  The  unions  apparently 
make  no  use  of  the  adviser  and  there  was  no  evidence  of  the 
extent  to  which  his  services  are  called  upon  by  others. "^"^ 

The  matter  of  a  workmen's  representative  was  considered 
by  Chief  Justice  Sloan  in  British  Columbia  in  1952  when 
sitting  as  a  Royal  Commissioner  reviewing  the  operation  of 
the  Workmen's  Compensation  Act  of  that  Province.  He  rec- 
ommended the  appointment  of  an  "advocate"  at  Vancouver 
and  a  "deputy  advocate"  at  Victoria  who  would  be  members 
of  the  Bar  and  who  would  perform  duties  similar  to  the  pen- 
sions advocate  in  the  Department  of  Veterans  Affairs.  This 
recommendation  was  partially  implemented  by  the  appoint- 
ment of  a  "Compensation  Counsellor"  w-ho  was  not  required 
to  be  a  member  of  the  Bar.  The  Compensation  Counsellor's 
duties  as  defined  by  the  Order  in  Council  appointing  him 
were  "to  advise  and  assist  workmen's  compensation 
claimants." 

The  operation  of  the  Workmen's  Compensation  Act  of 
British  Columbia  w^as  again  considered  in  1966  by  a  Royal 
Commissions^'-  presided  over  by  Mr.  Justice  Tysoe.  He  found 
that  a  great  number  of  the  dissatisfied  claimants  who  were  in 
touch  with  the  Commission  had  no  knowledge  of  the  existence 
of  a  person  who  could  assist  them  in  establishing  their  claims 
and  even  a  few-  union  officers  were  not  aware  that  a  Compen- 
sation Counsellor  existed.  The  Commissioner  recommended 
that  an  office  of  Compensation  Consultant  be  established. 
The  holder  of  the  office  w^ould  be  responsible  to  a  member 
of  the  Cabinet  and  be  a  member  of  the  Bar. 

It  was  recommended  that  the  Compensation  Consultant 
and  his  assistants,  as  well  as  the  Compensation  Counsellor, 
should  have  access  at  all  reasonable  times  to  the  complete  files 
and  records  of  the  Board  and  other  material  pertaining  to 
every  injured  workman.  It  w^as  stressed  that  the  holder  of  the 
office  should  be  completely  independent  of  the  Board  and  of 
industry.  It  w^as  proposed  that  the  Compensation  Counsellor 
should  be  subject  to  the  direction  and  control  of  the  Compen- 
sation Consultant. 

^"^Report  of  the  Royal  Commission  in  the  Matter  of  the  Workmen's  Compen- 
sation Act  (1967),  67. 

^""Commission  of  Inquir)',  Workmen's  Compensation  Act,  Report  of  the 
Commissioner,  The  Honourable  Mr.  Justice  Charles  W.  Tysoe  (1966). 


2184         The  Workmen's  Compensation  Board 

This  recommendation  was  implemented  in  1968.^^^ 
For  convenience  we  quote  the  relevant  statutory  pro- 
visions. 

"77.    (1)  The  Lieutenant  Govenioi  in  Council  may, 

(a)  upon  the  recommendation  of  the  Attorney- 
General,  appoint  a  Compensation  Consultant, 
\\\\o  shall  be  a  barrister  and  solicitor  in  good 
standing  as  a  member  of  the  Law  Society  of 
British  Columbia; 

(b)  either  fix  the  remuneration  to  be  paid  to  the 
Compensation  Consultant  or  provide  for  the 
basis  of  remuneration  and  for  the  fixing  of 
actual  amounts  thereof  by  the  Attorney- 
General;  and 

(c)  prescribe  any  duties,  rights  or  privileges  attach- 
ing to  the  office  of  Compensation  Consultant  in 
addition  to  those  imposed  and  conferred  by 
Statute,  by-law,  canon  of  ethics,  regulations,  or 
rtile. 

(2)  The  Minister  of  Finance  shall  pay  to  the  Compensa- 
tion Consultant  out  of  the  Consolidated  Revenue 
Fund  such  remuneration  as  may  be  fixed  by  the 
Lieutenant  Governor  in  Council  or,  where  appro- 
priate provision  is  made  in  the  order  of 
appointment  under  subsection  (1),  by  the  Attorney- 
General. 

(3)  There  may  be  appointed,  pursuant  to  the  Civil 
Service  Act,  a  Compensation  Counsellor  and  such 
professional  and  other  advisers  and  staff  as  are 
necessary  to  enable  the  Compensation  Consultant 
and  the  Compensation  Counsellor  to  carry  out  their 
duties  effectively. 

(4)  The  Compensation  Consultant  shall 

(a)  give  or  cause  to  be  given  assistance  to  any  work- 
man or  dependents  having  a  claim  under  this 
Act,  except  ^vhere,  in  the  opinion  of  the  Com- 
pensation Consultant,  the  claim  is  unjustified; 

(b)  appear  before  the  Board  or  any  other  tribimal 
or  before  any  Court  or  Judge  on  behalf  of 
workmen  or  dependents  whose  claims  are  of 
such  complexity  or  importance  that,  in  his 
opinion,  his  appearance  is  required; 


'B.C.,  1968,  c.  9.  ss.  77,  78. 


Chapter  130         2185 

(c)  render  advice  to  workmen  and  dependents  with 
regard  to  the  interpretation  and  administration 
of  this  Act  and  any  rcgiihitions  made  here- 
under; and 

(d)  direct  and  supervise  tlie  Compensation  Coun- 
sellor and  the  staff  appointed  under  this  section 
in  the  performance  of  their  functions. 

(5)  The  Compensation  Counsellor  shall 

(a)  assist  workmen  and  dependents  in  the  formula- 
tion of  claims  under  this  Act  and  in  the  gather- 
ing of  evidence  in  support  thereof; 

(b)  assist  workmen  and  dependents  in  the  prepara- 
tion of  cases  for  review;  and 

(c)  assist  and  carry  out  the  directions  of  the  Com- 
pensation Consultant." 

"78.  (1)  No  officer  of  the  Board  and  no  person  authorized 
to  make  an  examination  or  inquiry  under  this  Part 
shall  divulge  or  allow  to  be  divulged,  except  in  the 
performance  of  his  duties  or  under  the  authority  of 
the  Board,  any  information  obtained  by  him  or 
which  has  come  to  his  knowledge  in  making  or  in 
connection  with  an  examination  or  inquiry  imder 
this  Part. 

(2)  Every  person  who  violates  the  provisions  of  sub- 
section (1)  is  guilty  of  an  offence  against  this  Part. 

(3)  The  Compensation  Consultant  and  the  Compensa- 
tion Counsellor  shall  have  access  at  any  reasonable 
time  to  the  complete  files  and  records  of  the  Board 
and  other  material  pertaining  to  each  and  every 
injured  or  disabled  workman,  including  any  state- 
ment prepared  under  subsection  (16)  of  section  55." 

Since  1953  provision  has  been  made  in  Manitoba  for  the 
appointment  of  an  officer  of  the  Department  of  Labour  who 
shall, 

"(a)  when  requested  by  an  injured  workman,  represent  him 
and  assist  him  in  the  preparation  and  presentation  of 
his  case  in  hearings  before  the  board  in  matters  being 
dealt  with  under  subsection  (3)  of  section  44; 

(b)  as  may  be  prescribed  by  the  Lieutenant-Governor-in- 
Council,  discharge  the  duties  of,  and  hold,  any  office 
authorized  by  law."^''* 

""R.S.M.  1954,  c.  297,  s.  80. 


2186         The  Workmen's  Compensation  Board 

In   Nova  Scotia  provision  was  made   in    1957   for   the 
appointment  of  a  Workmen's  Counsellor  who  shall, 

"(a)  when  requested  by  an  injured  Avorkman,  represent  him 
and  assist  him  in  the  preparation  and  presentation  of 
his  claim  for  compensation; 

(b)  discharge  such  other  duties  as  may  be  prescribed  by  the 
Governor  in  Council. "^"-^ 

Mr.  Justice  McGillivray  in  his  Report  made  the  following 
observations  and  recommendations: 

"Bearing  in  mind  that  from  two-thirds  to  three-quarters  of 
the  workmen  in  Ontario  covered  by  the  Act  are  not  members 
of  a  recognized  trade  union,  it  seems  to  me  that  somewhat 
greater  assistance  to  workmen  would  be  rendered  by  revising 
the  function  and  method  of  appointment  of  the  workmen's 
adviser  so  that  his  role  would  more  closely  resemble  that  of 
the  pensions  advocate  who  handles  servicemen's  claims 
before  the  Pension  Board.  I  recommend  that  the  status  of 
the  workmen's  adviser  be  elevated  and  that  the  following 
considerations  apply  to  his  appointment  and  duties: 

(a)  He  should  be  appointed  by  and  be  responsible  to  the 
Attorney-General  and  payment  of  his  salary  and  that  of 
his  staff  and  the  expenses  of  his  office  should  be  made  by 
that  Department.  If  possible,  his  offices  should  be  separ- 
ate from  those  of  the  Board.  It  is  fundamental  that  he  be 
completely  independent  of  the  Board  and  of  industry. 

(b)  He  must  be  a  person  of  high  standijig  who  loill  command 
the  respect  and  confidence  of  workmen  and  of  the  Board 
and  maintain  the  independence  required  of  him.  It  is 
therefore  important  that  the  salary  be  high  enough  to 
attract  a  competent  person  to  the  position.  I  do  not  feel 
it  essential,  as  did  Air.  Justice  Tysoe  in  his  report,  that 
the  adviser  be  a  lawyer  and  it  may  be  better  that  he  is 
not,  so  long  as  he  is  zvell  qualified  and  possesses  the 
attributes  I  have  mentioned. 

(c)  He  should  be  provided  with  such  assistants  as  the  volume 
of  luork  he  is  called  upon  to  perform  requires. 

(d)  He  need  not,  in  my  view,  have  complete  access  to  the 
Board  files  and  reports  and  it  should  be  sufficient  to 
enable  him  to  assist  in  the  preparation  and  presentation 
of  an  appeal  if  he  has  the  same  degree  of  access,  including 
the  right  to  the  summaries  of  information  referred  to 


'R.S.  N.S.  1957,  c.  343,  s.  82. 


Chapter  130         2187 

below,  as  has  an  individual  ivurkman.  I  do  not  feel 
therefore  that  a  provision  for  the  type  of  access  to  files 
as  is  contained  in  section  76(3)  of  the  British  Columbia 
statute  is  required. 

(e)  He  should  be  entitled  to  be  present  at  and  participate  in 
Appeal  Tribunal  and.  Board  Iiearin^s  on  behalf  of  the 
luorkman  to  assist  him  in  the  presentation  of  his  case. 

(f)  Tlie  fact  that  the  adviser's  services  are  available  on 
request  and  luithout  expense  should  be  stated  in  the 
advisory  letters  to  ivorkmen  already  referred  to. 

(g)  The  appeal  regulations  should  contain  due  provision  for 
the  foregoing. 

It  is  not  my  intention  in  making  this  recommendation  to 
create  an  adversary  system  where  employer  will  be  pitted 
against  employee  but  rather  to  encourage  the  service  of  free 
guidance  and  assistance  to  workmen  so  that  none  may  feel  at 
a  disadvantage  in  the  face  of  any  formality  that  may,  of 
necessity,  exist  in  the  proceedings  before  the  Appeal  Tri- 
bunal and  the  Board. "^"*^ 

These  recommendations  have  not  been  implemented  by 
legislation.  We  agree  with  the  principle  of  Mr.  Justice 
McGillivray's  recommendations  but  have  reservations  in  some 
matters. 

If  the  members  of  the  medical  profession  are  to  have  the 
protection  provided  for  them  concerning  malpractice  arising 
out  of  their  reports  there  is  no  reason  why  such  reports  should 
not  be  made  available  to  the  Workmen's  Adviser  as  they  are  in 
British  Columbia.  Without  this  it  would  be  most  difficult  for 
the  Workmen's  Adviser  to  give  an  injured  workman  full 
assistance. 

We  agree  that  the  status  of  the  Workmen's  Adviser 
should  be  raised  and  that  he  should  be  independent  of  the 
Board  but  we  do  not  think  that  the  analogy  of  the  advocate 
who  handles  servicemen's  claims  is  appropriate. 

Mr.  Justice  McGillivray  was  quite  alert  to  the  danger  of 
an  inquiry  conducted  by  the  Workmen's  Compensation  Board 
taking  on  the  characteristics  of  an  adversary  system  of  deter- 
mining rights.  This  must  be  avoided,  but  we  think  it  can  be 
avoided  if  the  Board  recognizes  that  in  the  incjuiry  it  conducts 

^"^Report  of  the  Royal  Commission  in  the  Matter  of  the  Workmen's  Compen- 
sation Act  (1967),  67-68.  Author's  italics. 


2188         The  Workmen's  Compensation  Board 

a  Workmen's  Adviser  has  a  real  function  to  assist  the  Board 
in  coming  to  the  right  conclusion  and  that  he  shall  have  full 
opportunity  to  participate  in  the  inquiry. 

We  do  not  think  that  there  is  any  need  for  two  officers, 
a  Compensation  Consultant  and  a  Compensation  Counsellor 
as  is  provided  for  in  the  British  Columbia  Act.  Such  a  system 
Tvould  tend  to  promote  an  adversary  system  in  the  Board's 
proceedings.  One  such  officer  with  adequate  staff  should  be 
sufficient.  When  called  upon,  his  most  important  function 
should  be  to  assist  the  workman  in  getting  his  case  properly 
prepared  for  consideration  in  the  first  instance  and  to  assist 
in  the  first  reference  where  a  claim  has  not  been  allowed. 
It  is  essential  that  he  should  have  full  access  to  all  the  files 
pertaining  to  a  claimant  who  has  consulted  him,  and  that  he 
should  be  put  in  a  position  to  advise  and  explain  to  dissatis- 
fied workmen  w^hat  rights  they  have  and  the  reasons  for  the 
decisions  given. 

In  the  administration  of  the  Act  it  is  of  first  importance 
that  claimants  should  have  no  reason  to  feel  that  they  have  not 
been  fairly  dealt  with  in  the  decision-making  process. 

Our  recommendation  is  that  a  Workmen's  Adviser  or 
Consultant  should  be  appointed  by  Order  in  Council.  He 
should  be  independent  of  the  Board;  his  function  should  be 
to  assist  and  advise  the  workman  with  respect  to  his  claim  and 
where  he  thinks  it  necessary  to  assist  him  at  any  hearing.  For 
that  purpose  he  should  have  access  to  all  relevant  files  and 
material.  He  should  not  be  considered  as  an  advocate  of 
special  interests  but  rather  as  one  who  assists  in  promoting 
justice.  He  should  be  provided  with  sufficient  staff.  His  salary 
and  that  of  his  staff  should  be  paid  out  of  the  Consolidated 
Revenue  Fund. 

RECOMMENDATIONS 

1.  Section  50  should  be  amended  to  provide  that  the  Board 
pay  the  compensation  directly  to  infant  einployees  unless 
a  reasonable  cause  is  shown  why  it  should  be  paid  to  some 
other  person. 

2.  Section  37(4)  should  be  clarified  so  as  to  provide  that 
compensation  should  be  paid  wherever  by  reason  of  an 


Chapter  130         2189 

industrial  accident  to  a  workman  an  illegitimate  child 
has  been  deprived  of  maintenance  which  it  was  entitled 
to  receive  from  the  workman. 

3.  Section  37(10)  should  be  amended  to  provide  that  pay- 
ment in  respect  of  a  child  may  be  made  to  a  person  other 
than  a  parent  when  the  Board  has  reasonable  grounds 
to  believe  that  payment  to  a  parent  would  not  be  in  the 
best  interests  of  the  child. 

4.  Section  37  (2)  should  be  amended  to  provide  that  the 
Board  shall  on  application  extend  the  period  of  compen- 
sation to  dependent  children  after  the  age  of  16  for 
further  or  better  education  unless  on  reasonable  grounds 
the  Board  is  of  the  opinion  it  is  not  advisable. 

5.  There  should  be  statutory  provision  requiring  the  con- 
sent of  the  workman  to  commutation  of  periodic  pay- 
ments of  compensation,  or  in  the  alternative,  the 
workman  should  be  given  an  opportunity  to  be  heard  on 
written  notice  before  an  order  for  commutation  is  made. 

6.  The  statute  should  provide  that  an  order  directing 
application  of  a  lump  sum  in  a  manner  other  than  as 
directed  by  the  workman  be  made  only  after  reasonable 
notice  in  writing  to  the  workman. 

7.  There  should  be  a  right  of  appeal  from  an  order  of 
commutation  or  order  directing  payment  of  a  lump  sum 
in  a  manner  other  than  as  directed  by  the  workman 
where  the  order  is  made  by  a  person  or  body  exercising 
the  powers  of  the  Board  by  delegation. 

8.  Section  86  (4)  should  be  amended  to  provide  that  the 
additional  percentage  levied  must  be  based  on  considera- 
tions affecting  the  fair  distribution  of  assessment;  in 
other  cases  the  imposition  of  penalties  should  be  left  to 
the  ordinary  courts. 

9.  Section  86  (6)  should  be  redrafted  to  read: 

"Where  the  Board  finds  that  the  ways,  works,  machinery  and 
appliances  in  any  industry  conform  to  modern  standards  in 
such  manner  as  to  reduce  the  hazards  of  accidents  to  a  mini- 
mum and  all  proper  precautions  are  being  taken   by  the 


2190         The  Workmen's  Compensation  Board 

employer  for  the  prevention  of  accidents,  and  where  the 
accident  record  of  the  employer  has  in  fact  been  consistently 
good,  the  Board  may  reduce  the  amount  of  any  contribution 
to  the  accident  fund  for  which  such  employer  is  liable." 

10.  Section  108  should  be  amended  to  provide  that  the 
percentage  penalty  be  prescribed  by  regulation. 

11.  If  the  purpose  of  the  legislative  powers  to  classify  and 
reclassify  industries  is  to  provide  an  equitable  distri- 
bution of  the  liability  to  contribute  to  the  accident  fund 
according  to  the  hazards  of  industry,  this  should  be 
clearly  stated  in  the  Act. 

12.  Section  86(2)  should  be  amended  to  provide  that  the 
power  of  the  Board  to  subdivide  classes  of  industries  be 
subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council  and  the  words  "for  any  other  reason  it  is  deemed 
proper  to  do  so"  be  deleted. 

13.  Sections  75  and  65  should  be  repealed  and  replaced  by 
provisions: 

(1)  conferring  on  the  Board  powers  of  inquiry  limited 
to  the  purposes  of  the  Act; 

(2)  conferring  on  the  Board  power  to  delegate  its 
powers  of  inquiry  in  proper  cases; 

(3)  conferring  a  right  to  apply  to  the  Supreme  Court 
for  an  order  enforcing  the  attendance  of  witnesses  and 
compelling  them  to  give  evidence  and  produce  docu- 
ments and  things. 

14.  Section  92  (1)  should  be  amended  to  provide  that  the 
power  to  require  information  is  limited  to  the  purposes 
of  the  Act. 

15.  Section  92(6)  should  be  amended  to  delete  the  power 
of  the  Board  to  levy  an  additional  percentage  of  assess- 
ment for  a  default  punishable  on  summary  conviction. 
If  the  power  of  the  Board  to  levy  an  additional  assessment 
or  interest  is  made  an  alternative  to  prosecution,  a 
standard  should  be  set  in  the  Act  or  regulations  passed 
by  the  Lieutenant  Governor  in  Council  limiting  the 
amount  that  may  be  assessed. 


Chapter  no         2191 

16.  Provisions  for  the  summons  to  witness,  demand  for  pro- 
duction of  documents  and  payment  of  witness'  fees 
should  conform  to  our  recommendations  in  Report 
Number  1. 

17.  Section  94  (2)  should  be  amended  to  provide  that  appli- 
cations for  orders  to  enter,  search  and  seize  be  made  to  a 
provincial  judge. 

18.  If  the  power  of  seizure  is  not  necessary  it  should  be 
repealed.  If  it  is  necessary,  the  Act  should  provide  that 
before  the  judge  issues  an  order  for  seizure  it  should  be 
shown  that  there  are  reasonable  grounds  to  believe 
that  a  sufficient  examination  cannot  be  made  in  the 
absence  of  seizure  or  that  there  are  reasonable  grounds  to 
believe  that  an  offence  imder  the  Act  has  been  committed, 
that  the  material  seized  wull  afford  evidence  of  the  offence 
and  that  it  is  located  on  specified  premises.  The  Act  should 
provide  for  a  right  to  return  of  the  material  seized  wdthin 
a  reasonable  time. 

19.  Section  97  should  be  amended  to  prohibit  disclosure  of 
information  gained  on  an  inquiry  except  for  the  purposes 
of  the  administration  of  the  Act  and  the  administration 
of  justice. 

20.  The  procedure  for  considering  claims  should  be  set  out 
in  the  statute. 

(a)  The  first  step  in  the  consideration  should  be  in  the 
nature  of  an  investigation  and  recommendation  which 
can  be  accepted  in  whole  or  in  part  by  the  claimant. 

(b)  The  claimant  should  receive  a  copy  of  the  recom- 
mendation, with  written  reasons  together  with  a  state- 
ment that  the  Workmen's  Adviser  is  available  to  him  to 
assist  in  his  decision  w^hether  to  accept  the  recom- 
mendation. 

(c)  If  the  recommendation  is  accepted  it  should  have 
the  effect  of  a  decision  of  the  Board. 

(d)  If  the  recommendation  is  not  accepted,  the  claimant 
should  have  a  right  to  a  further  investigation  and  a 
further  hearing  in  the  first  instance. 


2192         The  Workmen's  Compensation  Board 

(e)  On  this  investigation  all  matters  should  be  open  for 
full  consideration  and  a  final  recommendation  made 
which,  if  accepted,  would  have  the  effect  of  a  decision 
of  the  Board. 

(f)  If  the  final  recommendation  is  not  accepted  there 
should  be  a  right  to  apply  to  the  Review  Committee  if  it 
is  continued.  Consideration  should  be  given  to  abolish- 
ing the  Review  Committee  and  if  this  is  done  the  appli- 
cation should  be  direct  to  the  Appeal  Tribunal. 

(g)  If  the  Review  Committee  is  retained,  the  claimant 
should  have  access  to  all  material  which  it  will  consider. 
The  Review  Committee  should  exercise  wide  powers  of 
investigation;  it  should  hear  representations  and  wit- 
nesses and  not  confine  its  considerations  to  the  file. 

(h)  If  the  recommendation  of  the  Review  Committee 
is  accepted,  the  matter  should  be  final  unless  reopened 
by  the  Board. 

(i)  If  the  recommendation  is  not  accepted  there  should 
be  a  right  to  apply  to  the  Appeal  Tribunal. 

(j)  The  claimant  should  have  access  to  all  material  that 
will  be  considered  by  the  Appeal  Tribunal.  The  Appeal 
Tribinial  should  prepare  written  reasons  for  its  decision 
which  should  be  made  available  to  the  claimant.  The 
claimant  should  be  advised  of  his  right  to  apply  to  have 
the  decision  of  the  Appeal  Tribunal  reconsidered  by  the 
Board. 

21.  Section  97a  should  be  repealed  and  if  it  is  desired  to  give 
members  of  the  medical  profession,  etc.  protection 
against  malpractice  suits  in  making  reports,  properly 
framed  lesfislation  should  be  enacted. 


'G' 


22.  The  Act  should  provide  that  where  compensation  is 
refused  on  grounds  other  than  a  question  of  disability, 
the  Board  should  be  empowered  to  state  a  case  for  the 
opinion  of  the  Divisional  Court  of  the  High  Court  of 
Justice  on  any  question  of  law.  The  claimant  should 
have  a  right  to  apply  to  the  Court  for  an  order  directing 
the  Board  to  state  a  case  if  it  refuses  to  do  so. 


Chapter  no         2193 

23.  Where  the  Board  has  made  an  order  under  section  50 
directing  payment  oi  compensation  otherwise  than  to  a 
workman  there  should  be  a  right  ol  ap{)eal  to  the  Divi- 
sional Court  of  the  High  Court. 

24.  Employers  should  have  a  right  of  appeal  to  the  Minister 
from  Board  decisions  on  classifications  or  special 
assessments. 

25.  Sections  16  and  72  (1)  should  be  repealed  insofar  as  they 
purport  to  restrict  judicial  review. 

26.  A  Workmen's  Adviser  or  Consultant  should  be  appointed 
by  Order-in-Council  to  assist  and  advise  workmen  with 
respect  to  claims  and  to  assist  them  at  hearings  where  he 
deems  it  advisable.  He  should  have  access  to  all  relevant 
files  and  materials.  He  should  not  be  considered  to  be  an 
advocate  of  special  interests  but  one  who  assists  in  pro- 
moting justice. 

He  should  be  independent  of  the  Board  and  should 
have  sufficient  staff.  His  salary  and  that  of  the  staff  should 
be  paid  out  of  the  Consolidated  Revenue  Fund. 


Section  2 


THE  PROCEEDINGS  AGAINST 
THE  CROWN  ACT,  1962-63 


2195 


INTRODUCTION 

In  Report  Number  2  we  discussed  the  administrative 
courts  of  France  and  made  considerable  reference  to  the 
remedies  available  to  citizens  who  have  suffered  loss  through 
the  negligence  or  improper  acts  of  public  servants.  In  many 
cases  remedies  are  available  where  none  exist  in  Ontario 
because  the  Crown  enjoys  certain  special  privileges. 

It  is  not  within  our  Terms  of  Reference  to  engage  in  an 
elaborate  consideration  of  Crown  liability  and  Crown  privi- 
lege, but  our  task  would  not  be  complete  if  we  did  not  enter 
upon  some  discussion  of  the  Proceedings  Against  the  Crown 
Act,  1962-63  and  point  out  how  the  benefits  for  the  individual 
purported  to  be  conferred  under  that  Act  have  been  taken 
away  by  special  statutory  provisions.  This  we  shall  do  briefly 
in  this  Section. 


2197 


CHAPTER  131 


The  Proceedings  Against  the 
Crown  Act,  1962-63 


INTRODUCTION 

1  RiOR  to  the  enactment  of  the  Proceedings  Against  the 
Crown  Act^  the  Crown  enjoyed  immunities  from  liability  and 
procedural  shields  that  were  not  available  to  the  subject  of 
the  Crown.  The  Crown  was  not  liable  in  tort  and  any  action 
against  the  Crown  could  only  be  brought  by  petition  of  right 
and  a  fiat  of  the  Lieutenant  Governor  in  Council  was  required 
to  permit  the  action  to  proceed.  The  fact  that  a  fiat  was 
granted  did  not  in  any  way  affect  the  liability  of  the  Crown. 

We  are  particularly  concerned  with  the  provisions  of  the 
Proceedings  Against  the  Crown  Act  as  they  may  affect  the 
rights  of  the  individual  to  obtain  redress  for  wrongs  suffered 
by  reason  of  acts  of  servants  or  agents  of  the  Crown  with 
particular  reference  to  tribunals  of  the  nature  of  those  con- 
sidered in  this  Report,  their  officers  and  servants. 

The  Act  is  a  successor  to  the  Proceedings  Against  the 
Crown  Act,  1952^  which  although  passed  was  not  proclaimed. 
The  present  Act  is  in  the  same  terms  subject  to  some  addi- 
tional exceptions  that  are  irrelevant  to  this  discussion. 

In  introducing  the  1952  Bill  the  late  Honourable  Dana 
Porter,  Q.C.,  the  then  Attorney  General,  said: 

"Mr.  Speaker,  this  Bill,  as  I  said  on  first  reading,  removes  for 
the  first  time  the  necessity  of  applying  for  a  fiat  or  a  consent 
of  the  Government  when  actions  are  brought  against  any 
Government  Department  or  any  organization  that  might  be 
described  as  an  emanation  from  the  Crown. 


^Ont.  1962-63,  c.  109. 
*Ont.  1952,  c.  78. 


2199 


2200         The  Proceedings  Against  the  Crown  Act,  1962-63 

It  really  does  more  than  that  because  under  the  law  as  it 
now  stands,  no  action  in  damages,  no  action  based  upon  a 
wrong  or,  what  is  called  in  law,  a  "tort"— for  the  benefit  of 
the  hon.  member  for  Brant  (Mr.  Nixon)  this  is  sort  of  a 
mediaeval  French  Avord  this  time— now  may  be  brought 
against  the  Crown.  At  the  present  time  in  the  case  of  an  act 
by  a  Department  of  the  Government,  as  a  result  of  which 
some  person  has  been  injured  either  as  the  result  of  negli- 
gence or  as  the  result  of  something  that  might  be,  in  law, 
wrong,  may  be  brought,  and  it  is  entirely  up  to  the  Govern- 
ment to  decide  whether  some  voluntary  payment  should  be 
made.  That  has  been  the  laAV  and  is  the  law  in  most  parts 
of  the  British  Commonwealth,  except  where  an  Act  as  now 
proposed  has  been  passed. 

This  Act  entirely  changes  the  whole  position  and  provides 
that  from  the  time  this  Act  comes  into  force,  an  action  in 
tort  may  be  brought  against  the  Crown,  without  the  neces- 
sity of  applying  for  the  consent  of  the  Crown  to  the  bringing 
of  that  action.  As  a  result  of  this  legislation,  any  citizen  who 
feels  he  is  wronged,  and  thinks  that  he  has  grounds  for 
action,  may  proceed  in  the  ordinary  way,  by  issuing  a  writ 
just  as  any  ordinary  citizen  may  do  against  any  other  citizen 
or  against  a  corporation.  He  may  proceed,  in  the  ordinary 
course,  to  bring  an  action  against  the  Department  concerned 
whether  that  action  may  be  in  contract  or  in  tort  or  based 
upon  any  other  civil  right  of  action. 

This  Act  introduces  a  principle  that  is  entirely  new  in 
Ontario  and  removes  for  the  first  time  the  some^vhat  archaic 
principles  that  have  always  applied  to  any  claim  against  the 
Crown  throughout  the  ages,  based,  I  suppose,  upon  the 
ancient  legal  theory  that  the  'Crown  can  do  no  wrong.'  We, 
being  a  Government  of  enlightened  members  and  realizing 
that  perfect  as  we  may  be,  there  still  may  be  certain  cases 
where  mistakes  are  made,  are  prepared  to  submit  all  such 
cases  to  the  courts,  and  if  a  citizen  in  this  country  suffers  a 
wrong  at  the  hands  of  any  Crown  official  or  department  or 
employee,  we  think  he  should  not  be  put  in  a  Avorse  position 
than  he  would  be  if  that  unlawful  act  had  been  committed 
by  some  ordinary  individual  or  by  a  servant  of  some  private 
corporation.  "2 

In  introducing  the  Bill  which  became  the  present  Act, 
the  Honourable  F.  M.  Cass,  Q.C.,  the  then  Attorney  General, 
said: 


"Legislature  of  Ont.  Debates,  1st  Session  1952,  Vol.  33,  p.  C-5. 


Chapter  ni         2201 

"This  bill,  subject  to  the  exceptions  mentioned— and  the 
exceptions  are  mainly  to  pro\ide  for  procedures  ibr  actions 
against  the  Crown  under  other  statutes— removes  all  the 
immunities  and  privileges  heretofore  enjoyed  by  the  Crown 
and  enables  any  person  to  sue  the  Crown  and  its  seiuants 
and  agents  in  the  courts  as  of  right,  and  in  the  same  manner 
that  he  may  sue  a  person.  "^ 

THE  EFFECT  OF  THE  ACT 

The  main  thrust  of  the  Act  is  in  section  5(1)  and  (3): 

"5.  (1)  Except  as  otherwise  provided  in  this  Act  and  not- 
withstanding section  11  of  Tlie  Interpretation  Act, 
the  Crown  is  subject  to  all  liabilities  in  tort  to 
which,  if  it  were  a  person  of  full  age  and  capacity, 
it  would  be  subject, 

(a)  in  respect  of  a  tort  committed  by  any  of  its 
servants  or  agents; 

(b)  in  respect  of  a  breach  of  the  duties  that  a  person 
owes  to  his  servants  or  agents  by  reason  of  being 
their  employer; 

(c)  in  respect  of  any  breach  of  the  duties  attaching 
to  the  ownership,  occupation,  possession  or  con- 
trol of  property;  and 

(d)  under  any  statute,  or  under  any  regulation  or 
by-law^  made  or  passed  under  the  authority  of 
any  statute. 

(3)  Where  a  function  is  conferred  or  imposed  upon  a 
servant  of  the  Crown  as  such,  either  by  a  rule  of  the 
common  law  or  by  or  under  a  statute,  and  that 
servant  commits  a  tort  in  the  course  of  performing 
or  purporting  to  perform  that  function,  the  liability 
of  the  Crown  in  respect  of  the  tort  shall  be  such  as 
it  would  have  been  if  that  function  had  been  con- 
ferred or  imposed  by  instructions  lawfully  given  by 
the  Crown."^ 

There  are,  however,  certain  exemptions  which  cut  down 
the  effect  of  the  Act  and  deprive  the  victim  of  wrongful  acts 
of  any  remedy. 

"5.  (2)  No  proceedings  shall  be  brought  against  the  Crown 
under  clause  a  of  subsection  1  in  respect  of  an  act  or 
omission  of  a  servant  or  as:ent  of  the  Cro^vn  unless 


^Legislature  of  Ont.  Debates,  1962-63,  p.  2272.  Italics  added. 
"Ont.  1962-63,  c.  109,  s.  5(1)(3). 


2202         The  Proceedings  Against  the  Crown  Act,  1962-63 

proceedings  in  tort  in  respect  of  such  act  or  omission 
may  be  brought  against  that  servant  or  agent  or  his 
personal  representative. 

(4)  In  proceedings  against  the  Crown  under  this  section, 
an  enactment  that  negatives  or  limits  the  liability  of 
a  servant  of  the  Crown  in  respect  of  a  tort  com- 
mitted by  that  servant  applies  in  relation  to  the 
Crown  as  it  would  have  applied  in  relation  to  that 
servant  if  the  proceedings  against  the  Crown  had 
been  proceedings  against  that  servant."® 

Subsection  2  of  section  5  is  designed  to  narrow  the  liabil- 
ity of  the  Crown  for  tortious  acts  of  its  servants  beyond  that 
which  exists  for  employers  under  the  common  law.  At  com- 
mon law  there  are  some  cases  where  the  employer  may  be 
liable  for  damage  suffered  by  reason  of  the  tortious  acts  of 
the  servant  notwithstanding  that  no  action  may  be  brought 
against  the  servant.  Broom  v.  Morgan''  and  Smith  v.  Moss^ 
were  such  cases.  It  is  not  necessary  for  our  purposes  to  enter 
into  a  discussion  as  was  done  in  Broom  v.  Morgan  as  to 
whether  the  liability  of  an  employer  for  the  torts  of  his 
employees  is  a  vicarious  liability  or  a  joint  liability.  What  we 
are  concerned  with  is  that  the  loss  caused  by  negligent  ser- 
vants or  agents  of  the  Crown  should  not  fall  to  be  borne  by 
the  innocent  victim. 

In  referring  to  a  provision  similar  to  section  5(2)  in  the 
British  Act^  Glanville  Williams  said 

"It  is  thought  that  this  proviso  was  inserted  in  order  to  make 
it  plain  that  the  Crown  was  to  participate  in  the  defence  of 
'act  of  state'  that  is  open  to  the  servant  under  the  rule  in 
Buron  v.  Denman  (1848),  2  Ex.  167.  But  if  this  was  the 
intention  the  proviso  uses  a  bludgeon  to  kill  a  fly— and  the  fly 
was  already  dead,  because  where  the  servant  has  the  defence 
of  'act  of  state'  it  cannot  be  said  that  he  has  committed  a  tort 
within  the  words  of  section  2(l)(a),  and  thus  there  is  nothing 
for  which  the  Crown  could  in  any  event  be  liable.  On  the 
other  hand,  in  the  Smith  v.  Moss  situation  it  is,  as  said  before, 
arguable  that  the  servant  has  committed  a  tort,  though  one 


^Ibid.,  s.  5(2)(4). 

'[19531  1  QB-  597.  For  discussion  see  Salmond  on  Torts  (15th  ed.),  606. 

*[1940]  1  K.B.  424. 

•10-11  Geo.  6,  c.  44,  s.  2(2). 


Chapter  131         2203 

for  which  he  cannot  be  sued  by  his  wife  owing  to  the  personal 
relationship  between  them;  this  situation  the  bhidgeon 
effectively  hits,  though  there  is  no  reason  in  point  of  policy 
why  it  should."^" 

Subsection  4  of  section  5  of  the  Ontario  Act  (there  is  no 
similar  provision  in  the  British  Act)  relieving  the  Crown  of 
liability  where  the  liability  of  a  servant  of  the  Crown  in 
respect  of  a  tort  committed  by  that  servant  has  by  statute 
been  negatived  or  limited,  makes  it  clear  that  the  bludgeon 
is  intended  for  other  things  than  killing  dead  flies. 

Eight  of  the  statutes  creating  the  tribimals  which  we  have 
considered  in  this  Report  contain  provisions  purporting  to 
exempt  the  members,  officers  and  servants  of  the  tribunals 
from  liability  with  respect  to  wrongful  acts.  The  result  is  that 
no  action  can  succeed  against  the  tribunal  (if  a  legal  entity  and 
liable  in  tort)  or  its  members,  officers  or  servants.  If  the  servant 
who  has  done  the  wrongful  act  is  not  a  servant  of  the  tribunal 
but  a  sei'vant  of  the  Crown,  section  5(2)  and  (4)  relieves  the 
Crown  of  liability  that  would  otherwise  be  created  under  the 
Act. 

We  set  out  later  in  detail  the  statutory  provisions  to 
which  we  refer.  The  exempting  provisions  are  not  consistent 
and  the  exemption  in  some  cases  is  wider  than  in  others.  In 
other  statutes  creating  tribunals  dealt  with  in  this  Report 
there  are  no  provisions  exempting  the  members,  officers,  or 
servants  from  tortious  liability. 

It  is  hard  to  know  why  some  Crown  servants  have  been 
by  statute  relieved  of  liability  for  tort  and  some  have  not.  It 
is  equally  hard  to  know  why  the  Crowai  should  not  be  liable 
in  tort  in  any  of  those  cases  where  it  has  been  exempt  by  reason 
of  statutory  provisions  relieving  its  servants  or  agents  of 
liability. 

It  is  not  necessary  for  the  purposes  of  this  Report  to  enter 
upon  an  extensive  discussion  of  the  law  respecting  Crown 
agencies  or  who  are  Crown  agents.  The  Crown  Agency  Act^^ 

*°G.  Williams,  Crown  Proceedings,  4445.  See  criticism  of  section  2(2)  by  J.  W. 

Gordon  as  the  section  appeared  in  the  1921  draft  Bill  (1929)  45  L.Q.R.  186, 

189-90. 
"R.S.O.  1960,  c.  81. 


2204         The  Proceedings  Against  the  Croiun  Act,  1962-63 

purports   to  define  a  Crown  agency.    For  convenience,   we 
quote  its  provisions: 

"1.  In  this  Act,  'Crown  agency'  means  a  board,  commission, 
raih\^ay,  public  utility,  university,  manufactory,  com- 
pany or  agency  owned,  controlled  or  operated  by  Her 
Majesty  in  right  of  Ontario,  or  by  the  Government  of 
Ontario,  or  under  the  authority  of  the  Legislature  or 
the  Lieutenant  Governor  in  Council. 

2.  A  Crown  agency  is  for  all  its  purposes  an  agent  of  Her 
Majesty  and  its  powers  may  be  exercised  only  as  an  agent 
of  Her  Majesty. 

3.  This  Act  does  not  affect  The  Hydro-Electric  Power 
Commission  of  Ontario." 

When  this  legislation  was  introduced  the  then  Attorney- 
General  stated  that  its  purpose  w^as  to  obtain  exemption  from 
excise  tax  for  "the  various  commissions  and  boards  that  are 
covered  by  it  as  does  the  Crown  now  in  departments  of  the 
Crown. "^"  The  words  of  section  1  defining  a  Crown  agency 
were  copied  almost  verbatim  from  the  Excise  Tax  Act.^^  The 
apparent  hope  was  that  by  the  simple  process  of  defining 
bodies  as  Crown  agents  the  express  provisions  of  the  Excise 
Tax  Act  making  them  liable  to  tax  would  be  frustrated.  This 
was  not  the  result. 

However,  quite  apart  from  the  purpose  of  the  Act  as 
declared  when  the  legislation  was  introduced,  it  is  not  to  be 
disregarded  in  determining  whether  a  body  of  the  sort  named 
in  section  1  is  a  Crown  agent.  It  is  simply  to  be  taken  into 
consideration  in  deciding  a  particular  case.^^  In  Regina  v. 
Ontario  Labour  Relations  Board  ex  parte  Ontario  Food 
Terminal  Board^^  Laidlaw,  J.  A.  applied  the  common  law 
tests  in  determining  whether  the  Ontario  Food  Terminal 
Board  is  a  Crown  agent.  In  this  task  the  learned  Justice  of 
Appeal  did  not  appear  to  find  any  help  in  the  definition  of  a 
Crown  agency  contained  in  section  1  of  the  Act.   He  said: 

"It  is  not  possible  for  me  to  formulate  a  comprehensive  and 
accurate  test  applicable  in  all  cases  to  determine  with  cer- 


"'Le.s^islature  of  Ont.  Debates,  1959,  (5th  session)  25th  Leg.,  Vol.  1,  805-6. 

^"R.S.C.  1952,  c.  100,  s.  46(2)(b)  as  re-enacted  by  Can.  1959,  c.  23,  s.  9. 

^*See  B.C.  Poiver  Corporation  Ltd.  v.  Attorney-General  of  British   Columbia 

and  British  Cohmihia  Electric  Co.  Ltd.  (1962),  34  D.L.R.  (2d)  25. 
"[1963]  2  O.R.  91. 


Chapter  131         2205 

tainty  whether  or  not  an  entity  is  a  Crown  agent.  The  answer 
to  that  question  dejDends  in  part  iijx)n  the  nature  of  the 
f mictions  performed  and  for  whose  benefit  the  service  is 
rendered.  It  depends  in  part  upon  the  nature  and  extent  of 
the  powers  entrusted  to  it.  It  depends  mainly  upon  the 
nature  and  degree  of  control  exercisable  or  retained  by  the 
Crown. "^^ 

And  later, 

"...  The  question  must  be  determined  in  each  particular 
case  by  a  consideration  of  all  the  relevant  provisions  con- 
tained in  the  Act  that  creates  such  a  board  or  other  entity 
and  amendments  thereto. "^^ 

The  conclusion  we  come  to  is  that  Crown  agencies  may 
exist  that  do  not  come  within  the  provisions  of  the  Crown 
Agency  Act  and  that  bodies  which  may  appear  to  come  within 
the  language  of  the  Act  may  not  be  agents  of  the  Crown 
because  of  the  character  of  the  operation  or  the  control 
exercised  by  Her  Majesty. 

What  we  are  concerned  with  here  is  not  what  are  or  are 
not  Crown  agencies  but  the  statutory  immunity  from  liability 
for  tort  that  is  given  to  Crown  agents  and  Crown  servants  and 
how  the  individual  has  been  thereby  deprived  of  the  benefits 
he  would  otherwise  obtain  from  the  Proceedings  Against  the 
Crown  Act. 


SPECIAL  STATUTORY  PROVISIONS 

The  relevant  statutory  provisions  concerning  those  tri- 
bunals dealt  with  in  this  Report  are: 

Farm  Products  Marketing  Act 

"No  member  of  the  Board  or  of  a  local  board  and  no  officer, 
clerk  or  employee  of  the  Board  or  of  a  local  board  is  per- 
sonally liable  for  anything  done  or  omitted  to  be  done  by 
it  or  by  him  in  good  faith  in  the  exercise  of  any  power  or  the 
performance  of  any  duty  under  the  authority,  or  purporting 
to  be  under  the  authority,  of  this  Act  or  the  regulations."^^ 

^^Ihid.,  95. 

^'•Ihid.,  102. 

'"R.S.O.  1960,  c.  137,  s.  4(6)  as  re-enacted  by  Ont.  1968-69,  c.  37,  s.  1(5). 


2206         The  Proceedings  Against  the  Crown  Act,  1962-63 

Hospital  Services  Commission  Act 

"No  member  of  the  Commission  and  no  employee  thereof  is 
personally  liable  for  anything  done  by  it  or  him  under  the 
authority  of  this  Act,  any  other  Act  or  any  regulation." ^^ 

Milk  Act,  1965 

"No  member  of  the  Commission  and  no  officer,  field-man  or 
other  employee  of  the  Commission  is  personally  liable  for 
anything  done  by  him  in  good  faith  under  or  purporting  to 
be  under  the  authority  of  this  Act  or  the  regulations."^*^ 

"No  member  of  a  marketing  board  or  any  of  its  officers  or 
employees  is  personally  liable  for  anything  done  by  it  or  by 
him  in  good  faith  under  or  purporting  to  be  under  the 
authority  of  this  Act  or  the  regulations."^^ 

Ontario  Energy  Board  Act,  1964 

"No  member  of  the  Board  or  its  secretary  or  any  of  its  staff 
is  personally  liable  for  anything  done  by  it  or  by  him  under 
the  authority  of  this  or  any  other  Act."-^ 

Ontario  Highway  Transport  Board  Act 

"No  action  or  other  proceeding  lies  against  the  Board  or  any 
member  of  the  Board  or  any  officer,  agent  or  employee  of  the 
Board  for  anything  done  or  purporting  to  be  done  under  or 
in  pursuance  of  this  or  any  other  Act."-^ 

Ontario  Municipal  Board  Act 

"No  member  of  the  Board  or  its  secretary  or  any  of  its  staff 
is  personally  liable  for  anything  done  by  it  or  by  him  under 
the  authority  of  this  or  any  other  Act."-^ 

Power  Commission  Act 

"Without  the  consent  of  the  Attorney  General  no  action 
of  any  kind  whatsoever  shall  be  brought  against  the  Com- 
mission, and  without  the  consent  of  the  Attorney  General 


"R.S.O.  1960,  c.  176,  s.  21(2). 
"Ont.  1965,  c.  72,  s.  3(8). 
"/fejrf.,  s.  7(6). 
"Ont.  1964,  c.  74,  s.  6(2). 
"R.S.O.  1960,  c.  273,  s.  11(1). 
"R.S.O.  1960,  c.  274,  s.  32. 


Chapter  131         2207 

no  action  of  any  kind  whatsoever  shall  be  brought  against 
any  member  of  the  Commission  for  anything  done  or 
omitted  by  him  in  the  exercise  of  his  office. "^° 

Securities  Act,  1966 

"(1)  Except  with  the  consent  of  the  Minister,  no  action 
whatever  and  no  proceedings  by  way  of  injunction, 
mandamus,  prohibition  or  other  extraordinary  remedy 
lies  or  shall  be  instituted, 

(a)  against  any  person,  whether  in  his  public  or  private 
capacity,  or  against  any  company  in  respect  of  any 
act  or  omission  in  connection  with  the  administra- 
tion or  the  carrying  out  of  the  provisions  of  this  Act 
or  the  regulations  where  such  person  is  a  member 
of  the  Commission,  a  representative  of  the  Commis- 
sion or  the  Director,  or  where  such  person  or  com- 
pany was  proceeding  under  the  written  or  oral 
direction  or  consent  of  any  one  of  them  or  under 
an  order  of  the  Minister  made  imder  this  Act;  or 

(b)  against  any  exchange  auditor,  district  association 
auditor  or  association  auditor,  employed  under 
clause  b  of  section  30,  in  respect  of  the  performance 
of  his  duties  as  such. 

(2)  No  person  or  company  has  any  rights  or  remedies  and 
no  proceedings  lie  or  shall  be  brought  against  any  per- 
son or  company  in  respect  of  any  act  or  omission  of  the 
last-mentioned  person  or  company  done  or  omitted  in 
compliance  or  intended  compliance  with, 

(a)  any  requirement,  order  or  direction  under  this  Act 
of, 

(i)  the  Commission  or  any  member  thereof, 
(ii)  the  Director, 

(iv)  any  person  appointed  by  order  of  the  Minister, 
(v)  the  Minister, 

(vi)  any  representative  of  the  Minister,  the  Commis- 
sion, the  Director  or  of  any  person  appointed 
by  the  Minister;  or 

(b)  this  Act  and  the  regulations."^® 

It  is  unnecessary  for  our  purposes  to  enumerate  other 
statutes  which  contain  provisions  similar  to  those  which  we 

"R.S.O.  I960,  c.  300,  s.  7(5).  See  discussion  p.  1822  fF.  supra. 

"Ont.  1966,  c.  142,  s.  142(1)(2)  as  amended  by  Ont.  1968,  c.  123,  s.  41(1)(2)(3). 


2208         The  Proceedings  Against  the  Crown  Act,  1962-63 

have  just  set  out.  It  is  of  interest,  however,  to  find  that  the 
Elevators  and  Lifts  Act-'  was  amended  during  the  current 
session  of  the  Legislature  to  add  to  that  Act  section  24a: 

"No  inspector  or  engineer  of  the  Department  is  personally 
Hable  for  anything  done  or  omitted  to  be  done  by  him  in  the 
performance  of  his  duties  under  this  Act  or  the  regula- 
tions."-® 

As  a  result  of  this  amendment  not  only  was  the  liability 
of  inspectors  and  engineers  removed  but  that  of  the  Crown 
as  well. 

Generally  speaking,  in  the  absence  of  a  special  statutory 
provision  the  servants  and  agents  of  the  Crown  are  not 
immune  from  personal  liability  for  torts  committed  by 
them.-^ 

Under  the  common  law  a  police  constable  does  not  exer- 
cise his  authority  as  a  ser\'ant  of  the  state.  "His  authority  is 
original,  not  delegated,  and  is  exercised  at  his  own  discretion 
by  virtue  of  his  office.  .  .  ."^^ 

Special  provisions  have  been  enacted  under  the  Police 
Act  to  protect  the  rights  of  the  individual  who  may  suffer 
damage  by  reason  of  tortious  acts  of  police  constables.  These 
provisions  are  the  reverse  of  the  exempting  provisions  that 
we  have  been  discussing.  They  impose  liability  on  the  chief 
of  police  and  the  Commissioner  of  the  Ontario  Provincial 
Police  Force  where  no  liability  previously  existed  and  provide 
for  indemnification  of  police  officers  held  personally  liable  in 
proper  cases. 

"23.  (1)  The  chief  of  police  is  liable  in  respect  of  torts 
committed  by  members  of  the  police  force  under  his 
direction  and  control  in  the  performance  or  pur- 
ported performance  of  their  duties  in  like  manner 
as  a  master  is  liable  in  respect  of  torts  committed  by 
his  servants  in  the  course  of  their  employment,  and 
shall  in  respect  of  any  such  torts  be  treated  for  all 
purposes  as  a  joint  tortfeasor. 


"R.S.O.  1960,  c.  119. 

'Ubid.,  s.  24a  as  enacted  by  Ont.  1970,  c.  29,  s.  6. 

'^MacKenzie-Kennedy  v.  Air  Council,  [1927]  2  K.B.  517  at  532;  Raleigh  v. 

Goschen,  [1898]  1  Ch.  73. 
^"Attorney  General  for  New  South  Wales  v.  Perpetual  Trustee  Co.  (LD.)  and 

Others,  [1955]  A.C.,  457,  489.  See  also  Fisher  v.  Oldham  Corporation,  [1930] 

2  K.B.  364. 


Chapter  131         2209 

(2)  Where  a  chief  of  polite  is  liable  in  respect  of  a  Kjrt 
committed  by  him  in  the  performance  or  purpjrted 
performance  of  his  duties,  he  is  also  liable  and  may 
be  sued  separately  in  his  capacity  as  chief  of  jxjlice 
for  the  purposes  of  subsection  4. 

(3)  "W^iere  the  office  of  chief  of  j:M)lice  is  vacant  or  where 
there  is  no  chief  of  jxjlice,  the  chairman  of  the 
board  or,  where  there  is  no  board,  the  head  of  the 
council  shall  be  deemed  to  be  the  chief  of  police 
for  the  purposes  of  this  section. 

(4)  The  municipality  shall  pay, 

(a)  any  damages  or  costs  awarded  against  the  chief 
of  police  in  any  proceeding  brought  against  him 
by  virtue  of  this  section  and  any  costs  incurred 
by  him  in  any  such  proceeding  so  far  as  not 
recovered  by  him  in  the  proceedings;  and 

(b)  subject  to  the  approval  of  the  council,  any  sum 
required  in  connection  with  the  settlement  of 
any  claim  made  against  the  chief  of  police  by 
virtue  of  this  section. 

(4a)  Where  damages  and  costs  are  awarded  under  this 
section  in  respect  of  the  tort  of  a  member  of  an 
amalgamated  police  force,  each  municipality  par- 
ticipating in  the  amalgamation  is  jointly  and  sever- 
ally liable  for  the  damages  and  costs  referred  to  in 
subsection  4. 

(5)  The  council  of  a  municipality  may,  in  such  cases 
and  to  such  extent  as  it  thinks  fit,  pay  any  damages 
or  costs  awarded  against  a  member  of  the  police 
force  maintained  by  them  or  any  special  constable 
in  any  civil  or  criminal  proceedings  brought  against 
him,  any  costs  incurred  and  not  recovered  by  him 
in  any  such  proceedings,  and  any  sum  required  in 
connection  wuth  the  settlement  of  any  claim  that 
has  or  might  have  given  rise  to  such  proceedings."^^ 

As  to  the  Provincial  Police: 

"43a.  (1)  The  Commissioner  is  liable,  in  respect  of  torts  com- 
mitted by  members  of  the  force  in  the  performance 
or  purported  performance  of  their  duties,  in  like 
manner  as  a  master  is  liable  in  respect  of  torts 
committed  by  his  servants  in  the  course  of  their 


"R.S.O.  1960,  c.  298,  s.  23  as  re-enacted  by  Ont.  1965,  c,  99,  s.  6  and  amended 
by  Ont.  1966,  c.  118,  s.  5  and  Ont.  1967,  c.  76,  s.  7. 


2210         The  Proceedings  Against  the  Crown  Act,  1962-63 

employment,  and  shall  in  respect  of  any  such  torts 
be  treated  for  all  purposes  as  a  joint  tortfeasor. 

(2)  The   Treasurer  of  Ontario  shall  pay  out  of  the 
Consolidated  Revenue  Fund, 

(a)  any  damages  awarded  against  the  Commissioner 
in  any  proceeding  brought  against  him  by  virtue 
of  this  section  and  any  costs  incurred  by  him  in 
any  such  proceeding  so  far  as  not  recovered  by 
him  in  the  proceedings;  and 

(b)  subject  to  the  approval  of  the  Lieutenant  Gov- 
ernor in  Council,  any  sum  required  in  connec- 
tion with  the  settlement  of  any  claim  made 
against  the  Commissioner  by  virtue  of  this  sec- 
tion."32 

There  is  no  apparent  philosophy  of  justice  in  the  legisla- 
tion of  this  Province  concerning  damage  suffered  by  indi- 
viduals by  reason  of  the  wrongful  acts  of  public  serv^ants.  The 
Crown  accepts  full  liability  for  the  wTongful  acts  of  police 
officers  but  for  a  large  segment  of  those  serving  the  Crown  in 
other  capacities  no  liability  is  accepted  and  the  servants  them- 
selves are  relieved  of  personal  liability.  In  such  cases  the  victim 
of  the  wrongful  act  is  left  without  a  remedy.  To  state  that  if  a 
person  is  injured  by  the  negligent  act  of  an  engineer  of  the 
Department  of  Public  Works  in  the  performance  of  his  duties, 
both  the  engineer  and  the  Crown  are  liable  to  pay  damages, 
but  if  the  injury  is  caused  by  an  engineer  performing  duties 
under  the  Elevators  and  Lifts  Act  neither  the  Crown  nor  the 
engineer  is  liable  for  anything,  is  sufficient  to  demonstrate  the 
irrational  injustice  of  the  law. 

In  introducing  the  respective  "Proceedings  Against  the 
Crown"  Acts  both  the  Honourable  Mr.  Porter  and  the  Hon- 
ourable Mr.  Cass  made  clear  statements  of  their  purposes 
which  we  repeat.  ".  .  .  If  a  citizen  in  this  country  suffers  a 
wrong  at  the  hands  of  any  Crow^n  official  or  department  or 
employee,  we  think  he  should  not  be  put  in  a  worse  position 
than  he  w'ould  be  if  that  unlawful  act  had  been  committed  by 
some  ordinary  individual  or  by  a  servant  of  some  private 
corporation."^^ 

""Ibid.,  s.  43a  as  enacted  by  Ont.  1966,  c.  118,  s.  12. 
"Legislature  of  Ont.  Debates,  First  Session  1952,  Vol.  33,  C-5. 


Chapter  ni         2211 

"This  bill,  subject  to  the  exceptions  mentioned  .  .  . 
removes  all  the  immunities  and  privileges  heretofore  enjoyed 
by  the  Crown  and  enables  any  person  to  sue  the  Crown  and 
its  servants  and  agents  in  the  courts  as  of  right,  and  in  tlie 
same  manner  that  he  may  sue  a  person. "^^ 

That  declared  purpose  has  been  defeated  repeatedly  by 
the  subtle  method  of  merely  enacting  legislation  relieving 
servants  of  the  Crown  of  liability. 

No  doubt  the  nature  of  the  service  rendered  by  officers 
or  servants  of  the  Crown  is  sometimes  of  such  a  character  that 
it  is  unreasonable  that  they  should  be  asked  to  assume  the 
risk  of  being  held  liable  for  injury  done  by  reason  of  their 
wrongful  acts.  In  such  cases  provision  should  be  made  for 
their  indemnification  as  has  been  done  in  the  case  of  police 
officers.  In  the  alternative,  provision  could  be  made  relieving 
the  officer  or  senant  of  liability  but  not  relieving  the  Crown 
of  liability  as  employer.  The  solution  in  no  case  should  be  the 
one  adopted  now— to  leave  the  victim  of  wrongdoing  to  suffer 
the  loss. 

In  another  aspect  the  Act  appears  to  dilute  the  safeguards 
proclaimed  for  it  as  a  statute  that  "removes  all  the  immunities 
and  privileges  heretofore  enjoyed  by  the  Crown  and  enables 
any  person  to  sue  the  Crown  and  its  servants  and  agents  in 
the  courts  as  of  right  and  in  the  same  manner  as  he  may  sue 
a  person".  It  contains  the  following  provision: 

"Nothing  in  this  Act  .  .  .  (b)  subjects  the  Crown  to  proceed- 
ings under  this  Act  in  respect  of  a  cause  of  action  that  is 
enforceable  against  a  corporation  or  agency  of  the  Crown". ^'^ 

It  is  difficult  to  know  the  purpose  of  this  section  and 
exactly  w  hat  it  means. 

The  common  law  may  be  concisely  stated  as  follows: 

(1)  the  Crown  is  not  liable  in  an  action  based  on  tort; 

(2)  an  agent  of  the  Crown  is  not  liable  in  his  official  capacity 
as  an  agent  of  the  Crown  in  an  action  based  on  tort; 

(3)  an  agent  of  the  Cro^vn  is  not  liable  for  wrongful  acts  of 
its  servants  unless  the  act  has  been  done  pursuant  to  an 
order  or  direction  of  the  agent; 


'Legislature  of  Ont.  Debates,  1962-63,  2272. 
'Ont.  1962-63,  c.  109,  s.  2(2)(b). 


2212         The  Proceedings  Against  the  Crown  Act,  1962-63 

(4)  an  agent  of  the  Crown  is  liable  in  his  personal  capacity 
in  an  action  based  on  tort  where  the  agent  has  been  a 
party  to  the  wrongful  act,  i.e.,  directing  that  the  act  be 
done; 

(5)  servants  of  the  Crown  are  personally  liable  for  their 
WTongful  acts.^^ 

If  but  for  the  provisions  of  section  2(2) (b)  the  common 
law  has  been  so  changed  by  the  other  provisions  of  the  Act 
that  an  action  based  on  tort  w^ould  lie  against  the  Crown,  a 
Crown  corporation  or  Crown  agent  that  would  not  lie  at  com- 
mon law,  w'hy  should  there  be  a  statutory  provision  relieving 
the  Crown  from  liability  in  cases  where  a  cause  of  action  is 
enforceable  against  a  corporation  or  agency  of  the  Crown? 

If  the  Crown  is  to  stand  in  the  same  position  as  any 
person  with  respect  to  claims  based  on  wrongdoing  it  should 
not  be  relieved  of  liability  because  there  is  a  right  of  action 
against  some  other  person  or  corporation.  In  some  cases  the 
other  person  or  corporation  might  be  worthless. 

No  similar  provision  is  contained  in  the  federal  Crown 
Liability  Act^^  nor  in  the  British  Act.^^ 

Section  2(2) (b)  should  be  repealed. 

PROCEDURE 

No  proceedings  shall  be  brought  against  the  Crown  in 
respect  of  a  breach  of  the  duties  attaching  to  the  ownership, 
occupation,  possession  or  control  of  property  unless  the 
claimant  has  served  on  the  Crown  a  notice  of  the  claim  con- 
taining sufficient  particulars  to  identify  the  occasion  out  of 
which  the  claim  arises,  within  10  days  after  the  claim  arose. ^^ 

This  provision  creates  an  absolute  limitation.  The  claim 
arises  when  the  breach  of  duty  occurs  but  the  person  who  has 
a  right  to  claim  may  not  know  of  the  breach  until  after  the 
10-day  period  has  expired  or  the  claimant  may  be  ill  or 
incapacitated.  This  is  a  harsh  law.  A  10-day  period  is  too 
short.    There  should  be  a  right  to  apply  to  the  court  for  an 

^'Raleigh  v.  Goscheri,  [1898]  1  Ch.  73;  Bainhridge  v.  Postmaster  General, 
[1906]  1  K.B.  178;  Quebec  Liquor  Commission  v.  Moore,  [1924]  S.C.R.  540, 
550ff. 

«'Can.  1952-53,  c.  30. 

"MO- 11  Geo.  6,  c.  44. 

'"Ont.  1962-63,  c.  109,  s.  6a(3)  as  enacted  by  Ont.  1965,  c.  104,  s.  1. 


Chapter  131         2213 

extension  of  time  in  proper  cases.  7his  riglu  is  provided 
under  the  federal  Crown  Liability  Act/" 

The  procedure  with  respect  to  discovery  and  production 
is  not  the  same  as  that  which  applies  to  an  action  brought 
against  a  corporation. 

The  rele\'ant  section  originally  read: 

"In  proceedings  against  the  Crown,  the  rules  of  the  court 
in  Avhich  the  proceedings  are  pending  as  to  discovery  and 
inspection  of  documents  and  examination  for  discovery  apply 
in  the  same  manner  as  if  the  Crown  were  a  corporation, 
except  that  the  Crown  may  refuse  to  produce  a  document  or 
to  answer  a  question  on  the  ground  that  the  production  or 
ans^\•er  would  be  injurious  to  the  public  interest. "^^ 

This  was  amended  in  1965  to  read: 

"In  proceedings  against  the  Crown,  the  rules  of  the  court  in 
Tsiiich  the  proceedings  are  pending  as  to  discovery  and 
inspection  of  documents  and  examination  for  discovery  apply 
in  the  same  manner  as  if  the  Cro^vn  Avere  a  corporation, 
except  that, 

(a)  the  Crown  may  refuse  to  produce  a  document  or  to 
ans^ver  a  question  on  the  ground  that  the  production 
or  answer  would  be  injurious  to  the  public  interest; 

(b)  the  person  Avho  shall  attend  to  be  examined  for  discovery 
shall  be  an  official  designated  by  the  Deputy  Attorney 
General;  and 

(c)  the  CroAvn  is  not  required  to  deliver  an  affidavit  on  pro- 
duction of  documents  for  discovery  and  inspection,  but  a 
list  of  the  documents  that  the  Crown  may  be  required 
to  produce,  signed  by  the  Deputy  Attorney  General, 
shall  be  delivered."^- 

The  provision  giving  the  Crown  a  right  to  refuse  to 
produce  a  document  or  answer  a  c|uestion  on  discovery  on  the 
ground  that  the  production  or  answer  would  be  against  the 
public  interest  goes  further  than  the  common  law  rules  of 
Crown  privilege  applicable  at  trial  in  an  action  brought  by  one 
individual  against  another  or  by  an  individual  against  the 
Crown. 


"Can.  1952-53,  c.  30,  s.  4(4)(5). 

"Ont.  1962-63,  c.  109,  s.  10. 

"76/6?.,  s.  10  as  re-enacted  bv  Ont.  1965,  c.  104,  s.  2. 


2214         The  Proceedings  Against  the  Crown  Act,  1962-63 

The  ordinary  rule  is  that  relevant  evidence  must  be 
excluded  if  its  reception  would  be  contrary  to  the  state 
interest.  What  is  meant  by  "the  state  interest"  is  a  matter  to 
be  determined  by  case  law  but  it  can  be  broadly  said  that  the 
decisions  fall  under  two  heads: 

1,  those  in  which  evidence  has  been  excluded  because  its 
disclosure  would  be  injurious  to  national  security,  and 

2.  those  in  which  evidence  has  been  excluded  because  its 
reception  would  be  injurious  to  some  other  national 
interest. ^^ 

It  is  unnecessary  here  to  enter  upon  an  elaborate  discus- 
sion of  the  application  of  the  common  law  rules  and  who 
should  decide  what  is  privileged— the  Minister  or  the  judge. 
For  our  purposes  it  is  sufficient  to  say  that  the  common  law 
rules  as  to  Crown  privilege  should  apply  throughout  to  actions 
against  the  Crown.  It  is  contrary  to  the  announced  spirit  of 
the  Proceedings  Against  the  Crown  Act  that  the  individual 
suing  the  Crown  should  be  under  any  more  evidentiary 
handicaps  than  w^here  he  is  suing  a  corporation. 

Section  10(a)  should  be  repealed. 

Although  the  Act  provides  that  a  plaintiff  in  an  action 
against  the  Crown  has  a  right  to  examine  for  discovery,  the 
person  who  shall  be  examined  is  the  official  designated  by  the 
Deputy  Attorney  General. 

Originally  the  rules  of  court  applied  in  the  same  manner 
as  if  the  Crown  were  a  corporation.^^  Under  the  rules  of 
court  in  the  case  of  a  corporation  any  officer  or  servant  of  such 
corporation  may  be  examined  for  discovery.  However,  a 
corporation  may  apply  to  the  court  to  have  examined  an 
officer  or  servant  in  lieu  of  the  officer  or  servant  selected  to  be 
examined.  After  the  examination  of  an  officer  or  servant  a 
party  is  not  at  liberty  to  examine  any  other  officer  or  servant 
without  an  order.'*^ 

Generally,  in  order  to  succeed  in  an  action  for  tort 
against  the  Crown  the  plaintiff  must  show  that  he  has  a  cause 
of  action  against  the  servant  of  the  Crown.  In  many  cases  a 

"See  Cross,  Evidence  (3rd  ed.,  1967)  252. 

"Ont.  1962-63,  c.  109,  s.  10. 

*^Riiles  of  Practice  and  Procedure,  Rule  326, 


Chapter  III  2215 

plaintiff  may  be  gravely  handicapped  by  the  decision  of  the 
Deputy  Attorney  General  if  he  names  for  an  examination  an 
official  other  than  the  one  whose  negligence  gives  rise  to  the 
cause  of  action.^" 

Section  10(b)  should  be  repealed  and  the  rules  of  court 
respecting  examinations  for  discovery  should  be  made  to 
apply  in  all  actions  against  the  Crown  as  if  the  Crown  were 
a  corporation. 

RECOMMENDATIONS 

1.  All  statutory  provisions  relieving  officers  and  servants  of 
the  Crown  from  liability  for  tortious  acts  should  be 
repealed. 

2.  Where  by  reason  of  the  nature  of  the  employment  of 
officers  or  servants  of  the  Crown  it  is  considered  just  that 
they  should  be  relieved  of  liability  for  damage  caused  by 
their  wrongful  acts,  provision  should  be  made, 

(a)  for  their  indemnification  for  loss  suffered,  or 

(b)  relieving  them  of  liability  while  maintaining  the 
liability  of  the  employer  be  it  the  Crown,  Crown 
agent  or  Crown  corporation,  notwithstanding  that 
the  officer  or  senant  is  by  statute  not  liable. 

3.  In  no  case  should  the  victims  of  tortious  acts  of  officers  or 
servants  of  the  Crown,  Crown  agents  or  Crown  corpora- 
tions be  left  without  a  remedy. 

4.  Section  2(2) (b)  providing  that  nothing  in  the  Act  subjects 
the  Crown  to  proceedings  under  the  Act  in  respect  of  a 
cause  of  action  that  is  enforceable  against  a  corporation  or 
other  agency  of  the  Crown  should  be  repealed. 

5.  There  should  be  a  right  to  apply  to  the  court  for  an  order 

extending    the    10-day    period   for   giving   notice    under 
section  6a(3). 

6.  The  provision  that  in  an  action  against  the  Crown  the 
Crown  may  refuse  to  produce  a  document  or  answer  a 

**For  discussion  of  such  a  situation  see  The  Cleveland-Cliffs  Steamship  Co.  v. 
The  Queen,  [1957]  S.C.R.  810,  813  per  Kerwin,  C.  J.  See  also  statement  by 
Lord  Dunedin  concerning  the  Scottish  system  quoted  by  J.  W.  Gordon 
(1929),  45  L.Q.R.  186,  193-94. 


2216  The  Proceedings  Against  the  Crown  Act,  1962-63 

question  on  examination  for  discovery  on  the  ground  that 
the  production  or  answer  would  be  against  the  public 
interest  should  be  repealed.  The  common  law  rules  of 
Crown  privilege  should  apply  as  in  any  other  action. 

7.  Section  10(b)  should  be  repealed  and  the  rules  of  court 
respecting  examinations  for  discovery  should  be  made  to 
apply  in  all  actions  against  the  Crown  as  if  the  Crown 
were  a  corporation,  subject  to  the  application  of  the 
common  la^v  rules  as  to  Crown  privilege. 


Consolidated  Summary 
of  Recommendations 


(Continued) 


Recommendations  1-559  appear  in  Report  Number  1, 
Vol.  3,  p.  1257#. 

Recommendations  560-596  appear  in  Report  Number  2, 
Vol.  4,  p.  \6bbff. 


2217 


Part  V 

VOLUME  5 

Section  1 

THE  APPLICATION  OF 

GENERAL  PRINCIPLES  TO  SPECIFIC 

STATUTORY  TRIBUNALS 


THE  AIR  POLLUTION  CONTROL  ACT,  1967 

597.  Section  10(1)  of  the  Act  should  be  amended  to  provide 
that  the  Minister's  opinion  shall  be  based  on  reasonable 
and  probable  grounds,  (p.  1744) 

598.  Section  11(10)  of  the  Act  should  be  amended  to  state 
expressly  that  the  proceedings  of  the  board  of  negotia- 
tion shall  be  without  prejudice  to  subsequent  proceed- 
ings of  any  type,  administrative  or  judicial,  (p.  1745) 

599.  If  the  provisions  of  section  6(2)  of  O.  Reg.  449/67  are  to 
form  part  of  the  law,  they  should  be  contained  in  the 
statute  and  not  the  regulations  made  under  the  Act.  (p. 
1745) 

THE  ARCHAEOLOGICAL  AND  HISTORIC  SITES 
PROTECTION  ACT 

600.  Provision  should  be  made  for  proper  compensation  of 
owners  of  land  for  the  rights  over  the  land  required  for 
archaeological  or  historic  sites,  (p.  1747) 

601.  Procedure  should  be  provided  for  notice  to  the  owner  of 
land  before  the  Minister's  decision  is  made  and  an 
opportunity  to  be  heard  should  be  given,  (p.  1747) 

602.  Procedure  should  be  provided  to  fix  compensation  for 
injury  suffered  by  the  owner  as  a  result  of  the  Minister's 
order,  (p.  1747) 

2219 


2220         Consolidated  Summary  of  Recommendations 

THE  ATHLETICS  COMMISSIONER 

603.  The  power  in  section  5(2)  of  the  Athletics  Control  Act 
to  declare  moneys  forfeited  should  be  expressed  in 
objective,  and  not  subjective,  terms,  (p.  1750) 

604.  The  powers  exercisable  under  subsections  2  and  3  of 
section  5  should  be  exercised  by  a  person  holding  a  posi- 
tion of  independence,  and  not  by  the  Minister,  (p.  1750) 

605.  Subsections  2  and  3  of  section  5  should  be  amended  to 
provide  that  the  person  hearing  the  evidence  should 
make  the  decision  and  the  charge  initiating  the  pro- 
ceedings should  be  made  by  some  person  other  than  the 
person  on  whom  the  power  to  hear  and  decide  is  con- 
ferred, (p.  1751) 

606.  There  should  be  an  appeal  to  the  courts  from  decisions 
made  under  subsection  2  of  section  5.  (p,  1751) 

607.  Section  9(1)  should  be  amended  to  provide  that  an  inde- 
pendent judicial  tribunal  exercise  the  powers  conferred 
thereunder  and  that  there  be  a  right  of  appeal  from  the 
decision  of  this  tribunal,  (p.  1752) 

608.  Section  12(l)(h)  should  be  amended  by  deleting  the 
power  to  make  regulations  authorizing  the  Commis- 
sioner to  levy  fines  or  other  pecuniai'y  penalties.  If  fines 
or  pecuniary  penalties  are  to  be  levied  the  Act  and  not  a 
regulation  passed  thereunder  should  provide  a  maxi- 
mum limit  for  the  fine  or  penalty,  (p.  1753) 

609.  Section  12(l)(n)  enabling  regulations  to  be  made  defin- 
ing certain  words  in  the  Act,  should  be  repealed,  (p. 
1753) 

610.  The  licensing  provisions  in  section  12  of  the  Act  should 
afford  guidance  by  setting  standards  or  factors  govern- 
ing the  decision  to  license.  The  subjective  power  of  the 
Commissioner  to  refuse  licences  should  be  abolished, 
(p.  1754) 

611.  There  should  be  a  right  of  appeal  from  licensing  de- 
cisions, (p.  1754) 

THE  FARM  PRODUCTS  MARKETING  BOARD 

612.  Section  3(2)  of  the  Act  should  provide  that  the  Farm 
Products  Marketing  Board  shall  consist  of  at  least  three 


Pari  y  (Volume  y)         2221 

members,  ihe  number  oi  persons  lixed  lor  a  (pioi  inn  in 
section  3(4a).  (p.  1758) 

613.  Section  6(4)  should  be  amended  so  as  to  relieve  only 
against  the  consec|ucnces  oi  technical  or  minor  delects  in 
the  cjualiHcations,  appointments  or  election  oi  a  member 
or  officer  oi  a  local  board,  (p.  1760) 

614.  The  provision  enabling  the  Board  to  deiine  "iarm 
product"  should  be  repealed,  (p.  1761) 

615.  Consideration  should  be  given  to  deleting  "dairy 
products"  from  the  delinition  of  "farm  product",  (p. 
1762) 

616.  The  definition  of  "marketing"  should  be  amended  to 
confine  the  various  acts  or  activities  defined  as  market- 
ing to  a  process  intended  to  result  in  a  sale  of  the  regu- 
lated product  in  (question,  (p.  1763) 

617.  The  Act  should  contain  general  definitions  of  the  words 
"producing"  and  "processing",  (p.  1764) 

618.  The  Act  should  be  amended  to  provide  that  the  Lieu- 
tenant Governor  in  Council  shall  authorize  the  real 
plan  to  be  formulated  with  respect  to  specified  products 
and  the  constitution  of  the  local  boards  and  the  method 
of  electing  their  members,  (p.  1768) 

619.  Paragraph  12  of  section  8(1)  should  be  repealed  and 
replaced  by  a  section  in  more  precise  language,  (p.  1770) 

620.  Paragraph  22  of  section  8(1)  should  be  repealed,    (p. 

1770) 

621.  The  general  provisions  in  the  opening  part  of  section 
9(1)  should  be  repealed,  (p.  1770) 

622.  The  Lieutenant  Governor  in  Council  should  not  have 
power  under  section  6(1  )(f)  and  (g)  to  put  a  local  board 
into  trusteeship.  Where  a  local  board  is  to  be  put  into 
trusteeship  it  should  be  by  the  exercise  of  judicial  power 
and  not  legislative  power,  (p.  1771) 

623.  Both  Board  regulations  and  local  board  regulations 
should  be  subject  to  the  approval  of  the  Lieutenant 
Governor  in  Council— which  would  make  them  subject 
to  the  provisions  of  the  Regulations  Act.  (p.  1773) 


2222         Consolidated  Summary  of  Recommendations 

624.  Paragraph  3  of  section  8(1)  should  be  amended  to  set 
out  the  grounds  on  which  a  licence  to  a  producer  may 
be  refused  as  distinct  from  the  grounds  on  which  a 
licence  may  be  refused  to  those  engaged  in  marketing 
and  processing,  (p.  1775) 

625.  The  words  "or  for  any  other  reasons  the  Board  may 
deem  sufficient"  should  be  deleted  from  paragraph  3  of 
section  8(1).  (p.  1776) 

626.  The  words  "for  any  reasons  that  the  Board  deems 
proper"  in  section  18(2) (a)  and  in  other  sections  of  the 
Act  should  be  deleted  and  appropriate  standards  in- 
serted in  their  place,  (p.  1777) 

627.  The  recommendations  which  were  made  in  Chapter  76 
respecting  procedure  to  govern  licensing  applications 
and  other  licensing  proceedings  should  apply  to  all 
licensing  under  the  Farm  Products  Marketing  Act  and 
its  subordinate  legislation,  (p.  1778) 

628.  Those  regulations  which  provide  that  a  person  whose 
licence  has  been  refused,  suspended  or  revoked  or  not 
renewed,  may  show  cause  why  such  licence  should  not 
be  refused,  suspended  or  revoked  or  why  such  renewal 
should  not  be  refused,  should  be  repealed  and  a  proper 
appeal  procedure  provided,  (p.  1779) 

629.  The  statute  should  clearly  provide  the  purpose  for 
w^hich  licensing  fees  may  be  charged,  (p.  1780) 

630.  The  General  Regulations  of  February  7,  1970  of  the 
Ontario  Greenhouse  Vegetable  Producers'  Marketing 
Board,  should  be  amended  to  conform  to  this  Report 
and  Report  Number  1.  (p.  1782) 

631.  Licensing  through  the  method  of  agreements  containing 
privative  clauses,  as  provided  for  in  the  General  Regula- 
tions of  the  Ontario  Greenhouse  Vegetable  Producers' 
Marketing  Board,  should  not  be  permitted,  (p.  1782) 

632.  Section  10a  should  not  require  two  hearings  before  the 
local  board  before  a  matter  may  be  brought  before  the 
Board.  If  it  is  intended  to  give  a  right  to  ask  for  a  re- 
hearing as  an  alternative  to  an  appeal  the  Act  should  so 
provide,  (p.  1785) 


Part  V  (Volume  5)         2223 

633.  Section  10a  should  be  amended  to  state  that  "an  appeal 
lies"  rather  than  "he  may  appeal",  (p.  1785) 

634.  The  provisions  of  the  reconnncnded  Statutory  Powers 
Procedure  Act  and  of  any  appropriate  detailed  rules  of 
procedure  should  apply  to  proceedings  under  section 
10a.  (p.  1785) 

635.  Appeals  based  substantially  on  matters  of  law  should  lie 
from  the  Board  to  the  Divisional  Court  of  the  High 
Court  of  Justice.  Where  decisions  arc  predominantly  of 
an  administrative  nature  a  right  of  appeal  should  lie 
from  the  Board  to  the  Minister  of  Agriculture  and  Food. 
(p.  1786) 

636.  The  power  of  investigation  in  section  4(1  )(a)  should  be 
amended  so  as  not  to  depend  upon  vague  or  imprecise 
language,  (p.  1788) 

637.  The  wide  powers  of  investigation  under  section  4(1  )(a) 
and  section  4(1  )(b)  should  be  subject  to  the  control  of 
the  Lieutenant  Governor  in  Council,  (p.  1788) 

638.  The  recommendations  which  we  have  made  with  respect 
to  the  powers  of  a  commissioner  under  the  Public 
Inquiries  Act  and  the  procedure  to  govern  investigations 
should  be  applicable  to  investigations  under  the  Farm 
Products  Marketing  Act.  (p.  1788) 

639.  The  investigative  provisions  in  section  7  should  not  per- 
mit entry  and  inspection  of  a  private  dwelling  without 
the  consent  of  the  occupier  except  under  the  authority 
of  a  search  warrant  issued  under  section  14  of  the 
Summary  Convictions  Act.  (p.  1789) 

640.  The  statute  should  place  a  restriction  on  the  use  of 
information  obtained  in  investigations  and  inspections, 
(p.  1790) 

641.  Persons  being  investigated  should  not  be  obliged  to 
supply  extracts  from  books  and  records.  It  should  be 
sufficient  if  books  and  records  are  temporarily  removed 
for  the  purpose  of  having  copies  made,  (p,  1790) 

642.  The  Act  should  define  expressly  what  are  the  orders  and 
directions  referred  to  in  section  13,  and  provide  that 
they  should  be  in  writing,  that  they  should  be  brought 


2224         Consolidated  Summary  of  Recommendations 

to  the  attention  of  the  person  concerned  before  their 
contravention  can  constitute  an  offense,  and  tliat  orders 
and  directions  should  state  on  tlieir  face  that  a  violation 
thereof  constitutes  an  offence  which  may  be  prosecuted 
on  summary  conviction,  (p.  1792) 

643.  The  penal  aspects  of  the  legislation  should  be  com- 
pletely reviewed  to  determine  how  the  obligations  and 
duties  it  imposes  can  be  best  enforced.  Section  14(1)  of 
the  Act  should  be  repealed  and  replaced  by  legislation 
providing  a  simple  summary  application  by  a  local 
board  to  a  county  court  judge  for  an  order  for  the  relief 
given  by  section  14.  (pp.  1792-93) 

644.  Section  14(2)(b)  should  be  repealed,  (p.  1793) 

645.  Section  17(1)  should  be  replaced  by  legislation  similar 
to  section  4(2)  of  the  Agricultural  Products  Marketing 
Act  (Canada),  (p.  1795) 

646.  Section  17(2)  should  be  repealed,  (p.  1795) 

647.  Section  18(2)(d)  should  be  amended  to  provide  that 
regulations  made  thereunder  should  provide  for  just 
procedure  for  the  exercise  of  the  powers  that  may  be 
conferred.  A  person  whose  tobacco  is  sought  to  be 
destroyed  should  be  heard  before  such  an  order  is  made. 
Alternatively,  if  it  is  considered  that  the  powers  in 
question  are  of  an  emergency  nature,  then  they  should 
be  exercisable  only  on  a  warrant  being  obtained  from  a 
justice  of  the  peace  after  showing  on  reasonable  and 
probable  grounds  that  the  Act  or  the  regulations  have 
been  violated.  A  person  whose  product  has  been  seized, 
removed,  destroyed  or  otherwise  disposed  of,  who  can 
establish  that  the  product  was  not  being  produced  or 
marketed  in  violation  of  the  leg^islation  should  have  a 
statutory  claim  for  compensation  for  any  loss.  (p.  1797) 

648.  Section  4(6)  should  be  repealed,  (p.  1798) 

THE  FIRE  MARSHAL 

649.  Rules  should  be  made  for  the  exercise  of  the  judicial 
powers  of  the  Fire  Marshal  and  his  officers,  (p.  1804) 

650.  The  right  of  appeal  from  the  decisions  of  the  Fire 
Marshal  made  in  the  first  instance  should  be  clarified. 


Part  V  (Volume  5)         2225 

Section  19(6)  should  be  amended  by  deleting  the  words 
"If  the  party  appealing  is  dissatisfied  with  the  .  .  ."  and 
substituting  therefor  the  words  "If  a  party  is  dissatisfied 
with  a  .  ,  ,"  so  that  tiie  subsection,  in  part,  will  read:  "If 
a  party  is  dissatisfied  with  a  decision  of  the  Fire  Marshal, 
he  may  within  fixe  days  after  the  ser\ice  of  the  decision, 
apply  by  way  of  originating  notice  according  to  the 
practice  of  the  court,  to  the  judge  of  the  county  or 
district  court.  .  .  ."  (p.  1805) 

651.  The  right  to  retain  goods  and  material  removed  from 
premises  under  the  provisions  of  section  12(c)  should  be 
based  on  "reasonable  grounds  to  believe"  that  the  goods 
or  material  "may  be  of  assistance  in  connection  with  any 
matter  under  investigation."  (p.  1806) 

652.  An  owner  of  goods  or  material  removed  from  premises 
pursuant  to  the  powers  conferred  under  section  12(c) 
should  ha\'e  a  right  of  repossession  within  a  reasonable 
time.  (p.  1806) 

653.  The  investigatory  powers  should  be  made  to  conform  to 
our  recommendations  made  in  Report  Number  1.  (p. 
1806) 

654.  Provision  should  be  made  for  the  payment  of  adequate 
witness  fees  to  witnesses  so  as  to  compensate  them  for 
loss  of  time  and  expenses  w'hile  attending  to  give 
evidence  before  the  Fire  Marshal  or  any  of  his  officers, 
(p. 1807) 

THE  HYDRO-ELECTRIC  POWER  COMMISSION 
OF  ONTARIO 

655.  The  definition  of  land  in  relation  to  expropriation 
should  be  the  same  in  the  Power  Commission  Act  as  that 
used  in  the  Expropriations  Act,  1968-69.  (p.  1812) 

656.  The  rights  of  riparian  owners  to  compensation  for  in- 
juries suffered  by  reason  of  the  construction  and  oper- 
ation of  works  of  the  Commission  and  the  procedure  by 
which  it  is  to  be  obtained  should  be  clearly  stated  in  the 
Act.  (p.  1815) 

657.  The  right  to  compensation  for  personal  property  taken 
without  the  o^vner's  consent  should  be  clearly  stated  in 


222G         Consolidated  Summary  of  Recommendations 

the  Act  and  the  procedure  by  which  the  compensation  is 
to  be  determined  should  be  set  out.  (p.  1816) 

658.  The  conflict  between  the  procedure  prescribed  for  fixing 
compensation  for  "easements,  rights  to,  over  or  affecting 
land"  acquired  under  section  33  and  that  provided  by 
the  Expropriations  Act,  1968-69  should  be  resolved,  (p. 
1817) 

659.  A  simple  procedure  should  be  provided  to  fix  compensa- 
tion where  small  claims  are  made  in  respect  of  the 
powers  exercised  under  section  33.  The  right  of  appeal 
should  be  to  the  Land  Compensation  Board,  (p.  1817) 

660.  Where  substantial  damage  arises  out  of  the  exercise  of 
powers  conferred  under  section  33  the  compensation 
should  be  fixed  by  the  Land  Compensation  Board,  (p. 
1817) 

661.  Where  any  person  or  municipality  has  been  assessed  for 
a  portion  of  the  construction  of  a  work  under  section  42 
he  or  it  should  have  a  right  of  appeal  irrespective  of  the 
consent  of  the  Commission.  The  words  "with  the  con- 
sent in  writing  of  the  Commission"  should  be  struck 
out.  (p.  1819) 

662.  The  provision  in  section  42  that  the  judge  fixing  the 
proportion  of  the  cost  of  a  work  shall  be  paid  fees  should 
be  repealed,  (p.  1820) 

663.  A  party  affected  by  an  order  made  under  section  42 
should  have  a  right  to  apply  to  the  Land  Compensation 
Board  or  the  tribunal  making  the  order  for  a  review  of 
the  order  where  owing  to  the  change  of  circumstances 
or  conditions  it  is  equitable  that  there  should  be  a  read- 
justment of  the  proportions.  Whether  there  is  a  change 
of  circumstances  or  conditions  ought  not  to  be  a  matter 
to  be  decided  by  the  Commission,  (p.  1821) 

664.  An  unregistered  claim  for  a  lien  under  section  42  should 
not  be  enforceable  against  innocent  purchasers  for  value 
without  notice,  (p.  1820) 

665.  In  case  of  dispute  as  to  the  cost  of  the  work  under  sec- 
tion 42(5)  the  Commission  should  be  required  to  prove 
to  the  satisfaction  of  the  tribunal  fixing  the  cost  what 
"the  expenditures,  charges  and  expenses"  were.  (p.  1821) 


Part  V  (Volume  5)         2227 

666.  Section  42  should  be  completely  revised,  (p.  1822) 

667.  Fines  recoverable  under  the  Act  should  not  be  paid  over 
to  the  Commission  but  should  form  part  of  tlie  Consoli- 
dated Revenue  Fund.  (p.  1822) 

668.  Section  7(5)  requiring  the  consent  of  the  Attorney  Gen- 
eral before  an  action  may  be  brought  against  the  Com- 
mission or  any  member  of  the  Commission  for  anything 
done  or  omitted  by  him  in  the  exercise  of  his  office 
should  be  repealed,  (p.  1823) 

669.  All  conflict  between  the  Power  Commission  Act,  the 
Power  Control  Act  and  the  Ontario  Energy  Board  Act 
should  be  resolved  by  appropriate  legislation,  (p.  1825) 

670.  Section  96(1)  should  be  amended  to  provide  that  the 
power  thereunder  should  be  exercised  by  the  Commis- 
sion or  if  it  is  to  be  exercised  by  one  member  thereof 
that  there  be  a  right  of  appeal  to  the  Commission,  (p. 
1824) 

671.  Where  applicable  the  recommendations  made  with 
reference  to  the  exercise  of  powers  by  the  Commission 
under  the  Power  Commission  Act  apply  with  equal 
force  to  the  provisions  of  the  Niagara  Development  Act, 
1951.  (p.  1818) 

672.  Section  8(2)(d)  of  the  St.  Lawrence  Development  Act, 
1952  (No.  2)  should  be  repealed,  (p.  1819) 

673.  The  St.  Lawrence  Development  Act,  1952  (No.  2) 
should  be  completely  revised  if  powers  are  to  be  exer- 
cised under  it  in  the  future  to  be  consistent  with  our 
recommendations  concerning  the  Power  Commission 
Act  and  to  remove  inconsistencies  with  the  Expropria- 
tions Act.   (p.  1819) 

THE  LIOUOR  CONTROL  BOARD  OF  ONTARIO 

674.  If  the  power  of  the  Board  under  section  8(2)  of  the  Act 
to  exempt  products  from  the  Act  is  not  essential  the  sub- 
section should  be  repealed.  If  it  is  essential,  such  an 
order  of  the  Board  should  be  subject  to  the  approval  of 
the  Lieutenant  Governor  in  Council,    (p.  1830) 


2228         Consolidated  Summary  of  Recomynendations 

675.  The  power  of  the  Board  to  make  regulations  prescribing 
taxes  and  assessments  by  regulation  should  be  abolished, 
(p.  1831) 

676.  The  licensing  provisions  in  sections  47,  53  and  53a 
should  be  amended  by  the  insertion  of  standards  or 
factors  concerning  the  licensing  decisions  made  there- 
under and  the  arbitraiy  features  of  sections  29  and  55 
should  be  repealed,    (p.  1832) 

677.  The  licensing  powers  exercisable  pursuant  to  these  sec- 
tions should  not  be  subject  to  the  control  of  a  Minister, 
(p. 1833) 

678.  Section  28  of  the  Act  requiring  the  holder  of  a  licence 
for  the  sale  of  liquor  to  give  security  should  be  repealed, 
(p.  1833) 

679.  The  Board  should  be  required  to  give  reasons  for  the 
refusal  or  the  cancellation  of  a  licence,  (p.  1833) 

680.  The  Act  should  provide  for  a  right  of  appeal  from  the 
refusal  of  a  licence,  (p.  1833) 

68 1 .  Appeals  from  licensing  decisions  under  section  55a  should 
not  lie  to  the  county  or  district  court  judge  but  to  the 
Divisional  Court  of  the  High  Court  of  Justice,  (p.  1834) 

682.  Guidelines  should  be  laid  down  for  the  exercise  of  the 
Board's  powers  respecting  interdiction  under  section 
84(1).  (p.  1835) 

683.  Provision  should  be  made  in  the  Act  for  the  right  of  a 
person  against  whom  an  order  has  been  made  under 
section  84(1)  to  apply  to  the  Board  to  have  the  order 
reconsidered,  (p.  1836) 

684.  Section  8(l)(g)  should  be  amended  to  strike  out  the 
words  "by  any  manner  whatsoever",  (p.  1836) 

685.  Section  101  of  the  Act  providing  that  the  contravention 
of  any  provision  in  it  or  the  regulations  constitutes  an 
offence  whether  so  declared  or  not,  should  be  repealed. 
If  a  section  of  the  Act  or  regulations  is  intended  to 
create  an  offence  it  should  specifically  so  state,  (p.  1837) 

686.  Section  78  of  the  Act  should  be  amended  to  provide  that 
a  person  can  be  convicted  thereunder  only  if  he  know- 
ingly consumed  liquor  which  has  not  been  "acquired 
under  the  Act  or  regulations.  .  .  ."  (p.  1837) 


Part  V( Volume  5)         2229 

687.  There  should  be  a  complete  revision  ol  the  offences 
created  under  the  Act  and  the  powers  of  arrest  without  a 
warrant,  (p.  1838) 

688.  The  powers  conferred  on  police  officers  to  search  ilie 
person  should  be  repealed,  (p.  1839) 

689.  Section  122  of  the  Act  should  be  amended  to  provide 
that  fines  imposed  under  the  Act  should  be  paid  to  the 
Province,  (p.  1839) 

690.  The  privative  portions  of  section  26(2)  should  be  re- 
pealed,  (p.  1840) 

691.  Section  26(2)  should  be  amended  to  make  it  clear  that  a 
party  has  a  right  to  apply  to  the  Court  for  an  order 
directing  the  Board  to  state  a  case,  in  cases  where  the 
Board  has  refused  to  do  so.   (p.  1840) 

692.  Section  140  of  the  Act  should  be  amended  to  remove  the 
requirements  that  a  person  convicted  of  an  offence 
under  the  Act  deposit  a  sum  as  security  for  costs  and 
enter  into  a  recognizance  or  deposit  a  sum  of  money  in 
lieu  of  entering  into  a  recognizance.  In  any  event,  sub- 
sections 5  and  6  thereof  should  be  amended  to  delete  the 
requirement  of  approval  by  the  Crown  attorney  respect- 
ing the  amount  of  che  recognizance  or  the  deposit  of 
money  in  lieu  thereof,  (p.  1841) 

693.  Consideration  should  be  given  to  completely  revising 
the  Liquor  Control  Act  so  as  to  create  a  board  with 
powers  to  merchandise  liquor  in  Ontario  on  behalf  of 
the  government  and  at  the  same  time  transfer  the 
regulatory  powers  and  licensing  powers  now  exercised 
by  the  Board  to  a  board  which  will  regulate,  control 
and  license  the  licjuor  trade  in  all  its  aspects,  (pp.  1842- 
43) 

694.  If  the  Liquor  Control  Board  is  to  continue  to  exist  there 
should  be  a  statutory  requirement  that  it  keep  minutes 
of  all  its  decisions,  (p.  1829) 

THE  LIQUOR  LICENCE  BOARD  OF  ONTARIO 

695.  The  legislation  governing  meetings  of  the  Liquor 
Licence  Board  of  Ontario  and  the  exercise  of  its  powers 
should  be  completely  reviewed.    The  Board  should  act 


2230         Consolidated  Summary  of  Recommendations 

only  through  a  quorum  of  its  members,  except  when  it 
renews  licences  where  no  objections  have  been  made.  In 
such  case  it  should  have  power  to  delegate  its  powers  to  a 
member,  (p.  1849) 

696.  If  it  is  necessary  for  a  member  to  hold  a  meeting  relevant 
to  a  matter  that  must  be  decided  by  the  Board  the  mem- 
ber's powers  should  be  clearly  defined  and  he  should  be 
required  to  make  a  written  report  which  should  be 
furnished  to  the  party  affected  who  should  have  an 
opportunity  to  be  heard  by  the  Board  with  respect 
thereto  if  he  so  desires,  (p.  849) 

697.  To  the  extent  that  the  Board  exercises  judicial  powers 
it  should  hear  evidence  directly  and  it  should  not  rely 
upon  the  report  of  a  delegate,  (p.  1850) 

698.  The  power  of  the  Board  to  limit  the  number  of  licences 
that  may  be  issued  in  any  municipality  should  be  subject 
to  the  approval  of  the  Lieutenant  Governor  in  Council, 
(p.  1850) 

699.  Standards  relating  to  a  person's  entitlement  to  a  licence 
should  be  contained  in  the  Act.  (p.  1851) 

700.  The  provision  in  section  41(1)  requiring  "the  holder  of 
a  licence  to  show  cause  why  the  licence  should  not  be 
cancelled  or  suspended"  should  be  repealed,  (p.  1851) 

701.  Before  a  licence  may  be  revoked  or  cancelled  the  holder 
of  the  licence  should  be  given  notice  of  the  hearings  set- 
ting out  the  allegations  made  against  him  and  a  reason- 
able opportunity  to  meet  them.  (p.  1851) 

702.  The  Board  should  be  required  to  give  reasons  in  all  cases 
where  it  cancels  a  licence,  (p.  1852) 

703.  The  privative  clause  contained  in  section  20  should  be 
repealed,  (p.  1852) 

704.  The  right  of  appeal  by  way  of  stated  case  conferred  by 
section  20,  incorporating  provisions  of  the  Criminal 
Code,  is  not  appropriate  for  application  to  orders,  deci- 
sions and  rulings  of  the  Board.  In  any  event,  it  should 
extend  to  "a  person  affected  by  a  decision,  order  or 
ruling"  of  the  Board,  (p.  1853) 


Part  V  (Volume  5)         2231 

705.  The  right  of  appeal  to  a  district  or  county  court  judge, 
now  conferred  by  the  Act,  should  lie  to  the  Divisional 
Court  of  the  High  Court  of  Justice,  (p.  1854) 

706.  The  Act  should  provide  for  a  right  of  appeal  from  de- 
cisions refusing  to  issue  or  renew  a  licence  or  suspending 
a  licence,  (p.  1854) 

707.  The  power  to  commit  for  contempt  of  the  Board's  orders 
should  be  exercised  by  the  Supreme  Court  of  Ontario  as 
recommended  in  Report  Number  1.  (p.  1855) 

708.  The  power  of  search  and  seizure  of  the  Board  should  be 
limited  by  some  objective  standards.  The  Board  should 
not  have  power  to  have  its  accountant  examine  the 
books  and  records  of  persons  other  than  licensees,  (p. 
1856) 

709.  The  power  of  search  and  seizure  under  section  18(1)  of 
the  Act  should  be  confined  to  licensed  establishments, 
(p.  1857) 

710.  All  witnesses  compelled  to  attend  for  the  purpose  of 
proceedings  under  the  Act  should  be  paid  proper  wit- 
ness fees.  (p.  1857) 

711.  The  Act  should  provide  for  an  appeal  from  arbitration 
decisions  respecting  compensation  under  section  48.  (p. 
1858) 

712.  Where  the  Board  wrongfully  disqualifies  premises  it 
should  be  compelled  to  compensate  the  owner  for  loss 
suffered,  (p.  1858) 

713.  The  body  to  fix  compensation  under  section  48  should 
be  the  Land  Compensation  Board,  (p.  1858) 

714.  Section  56  imposing  liability  on  a  parent  or  guardian 
for  leaving  a  child  under  the  age  of  eight  years  un- 
attended should  be  reconciled  with  the  Child  Welfare 
Act.  (p.  1859) 

715.  Section  59  enabling  the  arrest  of  a  person  without  a 
warrant  who  is  found  committing  an  offence  against  the 
Act  or  the  regulations  should  be  completely  reviewed 
and  the  pro\'isions  not  coming  within  the  recommenda- 
tions contained  in  Report  Number  1  (p.  741  supra) 
should  be  repealed,   (p.  1860) 


2232         Consolidated  Summary  of  Recommendations 

716.  Section  11  should  be  recast  so  as  to  restrain  the  Board, 
its  members,  or  its  staff  from  communicating  informa- 
tion obtained  in  the  course  of  their  duties  otherwise 
than  may  be  necessary  for  the  purposes  of  the  Act  or  as 
required  by  legal  process,  (p.  1860) 

THE  MILK  COMMISSION  OF  ONTARIO 

717.  All  regulations  made  by  the  Commission  or  by  a  board 
under  the  Act  should  be  approved  by  the  Lieutenant 
Governor  in  Council  before  they  come  into  effect,  (p. 
1870) 

718.  The  Lieutenant  Governor  in  Council  should  approve 
the  actual  plans  made  under  the  Act.  (p.  1870) 

719.  The  scope  of  the  Act  should  be  determined  by  the  Legis- 
lature and  the  sections  conferring  power  on  subordinate 
bodies  to  extend  the  scope  of  the  Act  by  the  definition  of 
"milk  products"  should  be  repealed,  (p.  1872) 

720.  All  words  of  definition  including  "marketing",  "pro- 
ducer", "processor"  and  "transporter"  should  be  re- 
stricted to  the  relative  necessities  and  purposes  of  the 
Act.  (p.  1873) 

721.  Section  8(1),  paragraph  13  giving  the  Commission  power 
to  make  regulations  "providing  for  the  control  and  regu- 
lation of  the  marketing  of  any  regulated  product,  includ- 
ing the  times  and  places  at  which  the  regulated  product 
may  be  marketed"  should  be  repealed  or  the  powers 
restricted  by  proper  guidelines  confining  the  power  to 
the  express  purposes  of  the  Act.  (p.  1874) 

722.  Section  8(1),  paragraph  32  empowering  the  Commission 
to  make  regulations  authorizing  any  marketing  board  to 
prohibit  the  marketing  of  any  class,  variety,  grade  or  size 
of  any  regulated  product  should  be  amended  so  as  to 
define  strictly  the  powers  of  prohibition  that  may  be 
exercised.  These  should  be  set  out  in  the  Act  and 
limited  to  the  necessary  purposes  of  the  Act.  (p.  1874) 

723.  Section  4(2) (j)  conferring  power  on  the  Commission  to 
"authorize  any  officer  or  field-man  to  exercise  such  of  its 
powers  as  it  deems  necessary  ..."  should  be  amended  to 


PartV(yQlume'i)         2288 

limit   the  powers  of  delegation   to  iniiior  matters,    (p. 
1875) 

724.  The  powers  conferred  on  the  Commission  under  section 
18,  paragrapli  6?>  to  exempt  from  tlie  Act  or  regulations, 
or  any  part  thereof,  any  plant  or  class  of  plants,  any 
person  or  class  of  persons,  or  any  milk  product  or  any 
class,  variety  or  grade  of  milk  product  should  Ijc  limited 
by  guidelines  laid  down  in  the  Act  for  their  exercise. 
(p.  1875) 

725.  Section  8(1),  paragraph  9  giving  power  to  the  Commis- 
sion to  make  regulations  "for  the  exemption  from  any 
or  all  of  the  regulations  under  any  plan  of  any  class, 
variety,  grade  or  size  of  regulated  product  or  of  any 
person  or  class  of  persons  engaged  in  the  producing  or 
marketing  of  the  regulated  product  or  any  class,  variety, 
grade  or  size  of  regulated  product"  should  be  repealed 
or  restricted  in  its  scope  to  that  which  is  essential  for  the 
purposes  of  the  administration  of  the  Act  and  such 
regulations  should  be  approved  by  the  Lieutenant 
Governor  in  Council,  (pp.  1875-76) 

726.  Section  25(1)  providing  that  "any  word  or  expression 
used  in  the  Act  or  the  regulations  may  be  defined  in  the 
regulations  for  the  purpose  of  the  regulations"  should 
be  amended  to  limit  the  power  of  definition  of  words 
used  in  the  Act  for  the  purpose  of  the  regulations  so  that 
the  definition  is  wathin  the  ambit  of  the  meaning  of  the 
words  as  used  in  the  Act.  A  word  used  in  the  Act  should 
not  be  given  a  meaning  by  regulation  at  variance  with 
its  meaning  as  used  in  the  Act.  (p.  1876) 

727.  Where  the  Lieutenant  Governor  in  Council  makes  regu- 
lations under  section  7(1  )(f)  and  (g)  providing  for  the 
carrying  out  by  the  Commission  or  a  trustee  of  any  or 
all  of  the  powers  of  a  marketing  board,  or  the  vesting  of 
the  assets  of  a  marketing  board  in  the  Commission  or  a 
trustee,  or  disposing  of  any  or  all  of  the  assets  of  a 
marketing  board,  or  dissolving  a  marketing  board  on 
terms  and  conditions  prescribed,  those  affected  by  such 
a  regulation  should  be  given  a  statutory  right  to  be 
heard  in  accordance  with  the  provisions  of  the  Statutory 


2234         Consolidated  Summary  of  Recommendations 

Powers  Procedure  Act  recommended  in  Report  Number 
1  and  the  exercise  of  the  powers  should  be  subject  to 
statutory  conditions  precedent,  (p.  1877) 

728.  The  Commission  should  not  be  responsible  to  the  Min- 
ister in  the  exercise  of  its  licensing  powers,  (p.  1878) 

729.  The  words  "or  for  any  other  reason  that  the  Commission 
deems  proper"  in  section  8(1),  paragraph  3  should  be 
repealed,  (p.  1879) 

730.  The  grounds  entitling  a  person  to  a  licence  should  be 
set  out  in  the  Act  and  not  in  the  regulations  as  in  R.R.O. 
1960,  Reg.  432,  section  46c(c).  Section  18,  paragraph  3 
of  the  Act  should  set  out  the  basic  terms  and  conditions 
for  holding  a  licence.  R.R.O.  1960,  Reg.  432,  section 
46c(c)  should  be  amended  to  delete  the  words  "in  the 
opinion  of  the  Commission."  (pp.  1879-80) 

731 .  Proper  standards  should  be  laid  down  in  the  Act  govern- 
ing the  licensing  powers  in  accordance  with  our  recom- 
mendations in  Report  Number  1  at  page  1132.  (p.  1880) 

732.  There  should  be  a  defined  legal  basis  on  which  the 
power  to  fix  quotas  is  to  be  exercised,  (p.  1883) 

733.  Rights  of  appeal  should  be  provided  in  cases  where  a 
licence  is  refused  or  revoked,  (p.  1884) 

734.  Rights  of  appeal  and  appeal  procedure  in  the  quota  fix- 
ing policy  should  be  set  out  in  the  regulations  and  not 
in  a  policy  statement  of  the  Ontario  Milk  Marketing 
Board,  (p.  1884) 

735.  Appeals  from  decisions  under  the  Act  involving  ques- 
tions of  law  should  lie  to  the  Divisional  Court  of  the 
High  Court  and  appeals  involving  matters  of  policy 
should  lie  to  the  Minister  of  Agriculture  and  Food.  (p. 
1885) 

736.  The  powers  of  a  field-man  as  set  out  in  R.R.O.  1960, 
Reg.  432,  section  97(3)  and  (4)  should  be  contained  in 
the  Act.  The  field-man  should  be  required  to  give 
written  reasons  for  his  decision  on  demand,  (p.  1886) 

737.  Where  milk  graders  reject  milk  based  on  findings  of 
fact,  there  should  be  a  procedure  for  further  tests  at  the 
request  of  a  party  affected,  (p.  1886) 


Part  V  (Volume  5)         2235 

738.  When  the  Public  Inquiries  Act  is  redrafted  as  recom- 
mended in  Report  Number  1,  section  4(3)  should  be 
amended  to  use  the  formula  "the  provisions  of  the 
Public  Inquiries  Act  shall  apply  to  investigations  under 
this  Act."  (p.  1887) 

739.  The  powers  of  investigation  under  sections  9  and  10  of 
the  Act  are  much  broader  than  necessary.  These  sections 
should  be  amended  to  provide: 

(1)  that  where  it  is  sought  to  enter  a  private  dwelling,  a 
warrant  must  be  obtained; 

(2)  that  information  obtained  on  the  inspection  shall 
not  be  disclosed  except  for  the  purposes  of  the  Act 
and  the  administration  of  justice,  and 

(3)  that  where  books  cannot  be  properly  inspected  on 
the  premises,  there  be  provision  for  the  person  in- 
vestigating to  make  copies  and  return  the  books 
within  a  reasonable  time.  (See  p.  422.)   (p.  1888) 

740.  Section  18,  paragraph  59  should  be  restricted  to  aspects 
of  the  milk  industry,  (p.  1889) 

741.  The  power  in  section  5(b)  to  stop  and  inspect  should  be 
conditioned  on  reasonable  grounds  to  believe  that  the 
conveyance  stopped  contains  milk  or  a  milk  product  in 
respect  of  which  a  contravention  of  the  Act  or  regula- 
tions has  taken  place,  (p.  1889) 

742.  Section  20  should  be  repealed  and  penalties  enacted  only 
if  appropriate  to  particular  contraventions.  No  one 
should  be  liable  to  punishment  unless  it  can  be  shown 
that  he  knowingly  contravened  the  Act  or  the  regula- 
tions, (p.  1889) 

743.  Section  22  should  be  repealed  and  in  its  place  provision 
should  be  made  for  a  summary  application  to  a  judge  of 
the  county  or  district  court  for  an  order  requiring  a 
party  who  has  not  paid  the  minimum  price  for  a  milk 
product  to  make  good  the  deficiency,  (p.  1890) 

744.  The  words  "or  a  judge  thereof"  should  be  deleted  from 
section  21.  Under  section  21  the  court  should  be  given 
express  power  to  enjoin  the  respondent  from  continuing 


2236         Consolidated  Summary  of  Recommendations 

the  commission  of  the  offence  without  necessarily  en- 
joining the  carrying  on  of  the  business  absolutely,  (p. 
1891) 

745.  Section  7(2)  should  be  amended  so  as  to  relieve  against 
minor  defects  only  in  the  appointment,  election,  or 
choosing  of  a  member  or  officer  of  a  marketing  board, 
(p.  1893) 

THE  MINING  COMMISSIONER 

746.  Secm^ity  of  tenure  should  be  provided  for  the  Com- 
missioner, (p.  1898) 

747.  The  Lieutenant  Governor  in  Council  should  have 
power  to  appoint  a  person  to  perform  all  the  duties  of 
the  Commissioner  if  for  any  reason  he  is  unable  to  act. 
(p.  1899) 

748.  Rules  of  practice  suitable  for  the  practice  before  the 
Commissioner  should  be  prepared  and  be  available  in 
pamphlet  form.  (p.  1900) 

749.  Provision  should  be  made  that  in  forfeiture  proceedings 
a  person  claiming  under  the  licensee  and  any  person 
holding  an  adverse  interest  should  have  a  right  to  be 
heard,  (p.  1901) 

750.  Section  157  should  be  repealed,  (p.  1902) 

751.  Provision  should  be  made  giving  a  right  to  apply  to  a 
judge  of  the  Supreme  Court  for  an  order  of  committal 
where  a  person  has  refused  to  obey  the  orders  of  the 
Commissioner,  (p.  1903) 

752.  Where  the  Commissioner  or  recorder  makes  an  order 
affecting  rights  he  should  be  required  to  give  written 
reasons  if  requested,  (p.  1903) 

753.  Provision  should  be  made  for  filing  all  orders  in  a  central 
place  and  when  so  filed  that  they  may  be  enforced  in  the 
same  manner  as  orders  of  the  Supreme  Court.  They 
should  not  be  filed  with  the  Registrar  or  local  registrar 
of  the  Supreme  Court,  (p.  1904) 

754.  Provision  should  be  made  that  adequate  notice  be  given 
to  parties  affected  by  an  order  of  a  recorder,  (p.  1904) 


Part  V (Volume. 5)         2237 

755.  The  Commissioner  should  have  a  right  to  extend  the 
time,  on  terms,  for  appealing  from  an  order  of  a  recorder 
after  the  thirty  days  period  ]:)ro\idcd  in  the  Act  has 
expired,  (p.  1905) 

756.  Provision  should  be  made  recjuiring  the  Commissioner 
to  furnish  parties  to  proceedings  before  him  with  copies 
of  opinions  or  reports  recei\'cd  by  him  inidcr  section 
142,  and  recpiiring  that  an  opportiniity  be  gi\en  to  the 
parties  to  make  submissions  relevant  thereto,  (p.  1905) 

757.  Where  the  Commissioner  receives  evidence  in  addition 
to  that  adduced  by  the  parties  or  a  report  of  a  person 
appointed  as  provided  in  section  143(1),  he  should  be 
required  to  furnish  the  parties  with  a  statement  of  the 
evidence  he  has  received  and  in  the  case  of  a  report,  a 
copy  of  the  report,  (p.  1905) 

758.  Where  the  Commissioner  proceeds  partly  on  a  view  or 
any  special  knowledge  or  skill  possessed  by  him  he 
should  be  required  to  furnish  the  parties  with  a  copy  of 
the  written  statement  he  is  required  to  make  under 
section  143(2)  of  the  Act.  (p.  1906) 

759.  Sections  149  and  150  should  be  repealed  and  provision 
made  conferring  on  the  Commissioner  the  same  juris- 
diction with  respect  to  costs  as  is  vested  in  a  Supreme 
Court  or  county  court  judge  subject  to  a  provision  that 
where  in  the  opinion  of  the  Commissioner  the  amount 
or  value  of  the  property  in  question  is  not  more  than 
$7,500  the  costs  should  not  be  awarded  on  a  scale  higher 
than  the  tariff  of  costs  applicable  in  county  court  pro- 
ceedings, (p.  1906) 

760.  Provision  should  be  made  for  a  proper  form  of  formal 
order,  (p.  1907) 

761.  There  should  be  a  provision  that  a  record  be  made  of 
the  evidence  taken  before  the  Commissioner  in  the  same 
form  as  is  required  in  the  Supreme  Court,  (p.  1907) 

762.  The  following  should  be  the  procedure  on  an  appeal  to 
the  Court  of  Appeal: 

(1)  The  appeal  shall  be  commenced  by  filing  a  notice 
of  appeal  with  the  recorder  and  the  payment  of  the  pre- 
scribed fee  within  15  days  from  the  date  of  the  decision. 


2238         Consolidated  Summary  of  Recommendations 

(2)  The  notice  of  appeal  with  proof  of  sen'ice  shall  be 
filed  with  the  Registrar  of  the  Supreme  Court  forthwith 
after  sendee. 

(3)  A  certificate  of  the  Registrar  certifying  that  the 
notice  of  appeal  and  proof  of  ser\  ice  have  been  filed 
shall  be  filed  with  the  recorder  within  20  days  of  the 
commencement  of  the  appeal. 

(4)  Unless  the  notice  of  appeal  and  the  certificate  of  the 
Registrar  are  filed  with  the  recorder  within  the  required 
time  the  appeal  shall  be  deemed  to  have  been 
abandoned. 

(5)  The  Commissioner  or  a  judge  of  the  Supreme  Court 
shall  have  power  to  extend  the  time  for  filing  the  notice 
of  appeal  and  the  certificate  notwithstanding  that  the 
time  for  filing  may  have  expired. 

(6)  An  order  extending  the  time  shall  not  be  made  un- 
less the  Commissioner  or  the  judge  is  satisfied  that  no 
substantial  wrong  or  miscarriage  of  justice  will  result, 
(pp.  1908-09) 

763.  The  statute  should  set  out  the  hours  that  the  offices  of 
the  Mining  Commissioner  and  the  recorders  shall  be 
open  for  business,  (pp.  1909-10) 

THE  ONTARIO  ENERGY  BOARD 

Unless  otherwise  indicated  references  in  these  recommenda- 
tions are  to  the  Ontario  Energy  Board  Act. 

764.  Members  of  the  Board  should  have  security  of  tenure, 
(p.  1916) 

765.  There  should  be  restrictions  on  those  eligible  for  mem- 
bership in  the  Board  similar  to  those  contained  in  the 
National  Energy-  Board  Act.  (p.  1916) 

766.  The  Act  should  provide  that  the  Board  be  presided  over 
by  at  least  one  legally  qualified  member,  (p.  1916) 

767.  The  power  conferred  on  the  Board  under  section  13(4a) 
to  act  on  its  own  motion  to  inquire  into  and  determine 
any  matter  that  may  be  raised  on  an  application  should 
be  repealed,  (p.  1921) 

768.  Section  36  should  be  amended  to  define  the  forms  of 
energy  which  come  within  its  scope,  (p.  1922) 


Part  V( Volume  5)         2239 

769.  Section  14  should  be  amended  so  as  to, 

(a)  set  out  the  procedural  powers  of  the  Board  without 
reference  to  the  powers  of  the  Supreme  Court; 

(b)  delete  the  Board's  powers  of  committal  to  jail.  1  he 
enforcement  of  the  Board's  orders  for  attendance  of 
witnesses  and  production  should  be  made  by  appli- 
cation to  a  judge  of  the  Supreme  Court,  (p.  1923) 

770.  Section  15(3)  should  be  amended  to  provide  that  reason- 
able notice  of  the  Board's  hearings  (by  service  or  publi- 
cation) shall  be  given  to  those  who  will  be  affected  by 
the  Board's  decisions  rather  than  "to  such  persons  as  the 
Board  directs",  (p.  1925) 

771.  Section  15(2)  should  be  amended  so  as  to  require  that 
before  the  Board  has  power  to  proceed  ex  parte,  it  be 
made  to  appear  to  the  Board  that  the  delay  necessary  to 
give  notice  of  the  hearing  of  an  application  would  likely 
entail  serious  mischief,  (p.  1925) 

772.  Provision  should  be  made  for  payment  of  witness  fees, 
(p.  1926) 

773.  Section  53(2)  should  be  repealed,  (p.  1926) 

774.  Section  29(1)  should  be  amended  to  provide  that  the 
decisions  of  the  Board  shall  be  filed  with  the  secretary 
of  the  Board  and  be  enforceable  in  the  same  manner  as 
orders  of  an  ordinary  court,  (p.  1927) 

775.  The  penal  sections  of  the  Act  should  be  completely  re- 
vised to  create  penalties  only  where  no  other  remedy 
would  be  adequate.  Minimum  penalties  should  be 
abolished,  (pp.  1927-28) 

776.  Section  19(3)  should  be  amended  to  delete  the  words 
"which  is  not  bound  by  the  terms  of  any  contract 
entered  into  prior  to  the  day  upon  which  this  Act  comes 
into  force",  (p.  1929) 

777.  Section  35(l)(f)  should  be  amended  to  set  out  the  pur- 
pose for  which  fees  may  be  charged  by  the  Board,  (p. 
1929) 

778.  Simple  procedures  should  be  provided  to  fix  compensa- 
tion for  small  claims  with  respect  to  the  acquisition  of 
rights  over  land  or  rights  of  entry  on  land  with  a  right  of 
appeal  to  the  Land  Compensation  Board,  (p.  1931) 


2240         Consolidated  Summary  of  Recommendations 

779.  There  should  be  no  power  to  grant  a  rehearing  where 
the  Board  has  exercised  judicial  powders  but  there  should 
be  a  right  of  appeal  to  the  Court  of  Appeal,  (p.  1932) 

780.  There  should  be  no  power  to  grant  a  rehearing  of  a 
rehearing  except  in  exceptional  and  specified  circum- 
stances, (p.  1932) 

781.  Section  31  should  be  amended  to  provide  a  right  in  a 
party  to  a  proceeding  before  the  Board  to  apply  to  the 
Court  of  Appeal  for  an  order  that  the  Board  state  a  case 
on  any  question  of  law  where  the  Board  refuses  to  state 
a  case.  The  words  "in  the  opinion  of  the  Board"  should 
be  deleted,  (p.  1932) 

782.  Where  an  appeal  has  been  taken  to  the  Court  of  Appeal 
the  Board  should  be  required  to  proceed  in  accordance 
with  the  opinion  of  the  Court  of  Appeal,  (p.  1932) 

783.  Section  32(6)  should  be  amended  to  provide  that  either 
the  Board  or  the  Court  of  Appeal  has  power  to  suspend 
a  rate-making  order  pending  an  appeal,  (p.  1933) 

784.  Section  33  should  be  amended  to  provide  that  the  right 
of  appeal  to  the  Lieutenant  Governor  in  Council, 

(a)  does  not  apply  to  interlocutory  matters; 

(b)  does  not  extend  to  matters  involving  questions  of 
law  and  jurisdiction,  (p.  1934) 

785.  Where  an  appeal  lies  to  the  Lieutenant  Governor  in 
Council  there  should  be  defined  rules  of  procedure  pro- 
viding for  a  hearing  of  the  parties  affected  by  a  decision 
of  the  Board,  (p.  1934) 

786.  Section  45  providing  that  the  decision  of  the  Board  on 
an  application  made  to  it  under  Part  II  of  the  Act  is 
final  and  conclusive  should  be  repealed,  (p.  1935) 

787.  Section  10  of  the  Municipal  Franchises  Act  should  be 
repealed  as  it  is  inconsistent  with  section  32  of  the 
Ontario  Energy  Board  Act  w4th  respect  to  rights  of 
appeal  to  the  Court  of  Appeal,  (p.  1936) 

788.  There  should  be  a  clear  right  of  appeal  from  declara- 
tions of  the  Board  inider  section  66(3)  of  the  Public 
Utilities  Act.  (p.  1937) 


Part  V  (Volume  5)         2241 

789.  All  statutes  conferring  power  on  the  Board  should  be 
amended  to  provide  uniform  rights  of  appeal,  (p.  1941) 

790.  The  Lieutenant  Governor  in  Council  should  not  liave 
power  to  reverse  a  decision  of  the  Court  of  Appeal,  (p. 
1941) 

791.  An  application  under  section  2^^  lor  a  permit  to  bore, 
drill  or  deepen  a  well  in  a  designated  gas  storage  area 
should  be  made  to  the  Board,  (p.  1942) 

792.  Unless  there  is  some  good  reason  not  apparent  in  the 
statute  an  application  under  section  6  of  the  Energy  Act 
to  repressure,  maintain  pressure  in  or  flood  a  gas  or  oil 
horizon  should  be  made  to  the  Board,  (p.  1943) 

793.  Section  6(2)  of  the  Energy  Act  should  be  amended  to 
require  that  a  copy  of  the  Board's  report  be  sent  to  the 
applicant  and  that  it  be  deemed  a  decision  of  the  Board 
from  which  there  is  a  right  of  appeal  to  the  Lieutenant 
Governor  in  Council  under  section  33  of  the  Ontario 
Energy  Board  Act.  (p.  1943) 

794.  Standards  should  be  provided  for  the  exercise  of  the  dis- 
cretionary powers  conferred  on  the  Minister  under  sec- 
tion 10  of  the  Energy  Act.  (p.  1944) 

795.  Before  refusing  a  licence,  permit  or  registration  vmder 
section  10  of  the  Energy  Act  the  Minister  should  hold  a 
hearing  or  require  the  Board  to  hold  a  hearing,  (p.  1944) 

796.  Section  10(1)(2)(3)  of  the  Energy  Act  should  be  amended 
to  recjuire  that  the  person  affected  receive  the  report  of 
the  Board  and  to  provide  for  a  right  of  appeal  to  the 
Lieutenant  Governor  in  Council,  (p.  1944) 

797.  The  Ontario  Energy  Board  Act  and  the  Energy  Act 
together  with  the  relevant  sections  of  the  other  statutes 
under  w^hich  powers  are  conferred  on  the  Ontario 
Energy  Board  should  be  completely  revised  with  a  \'iew 
to  eliminating  the  procedural  inconsistencies  that  exist 
with  respect  to  the  exercise  of  the  poAvers  of  the  Board 
and  the  rights  of  appeal  from  decisions  or  orders  of  the 
Board,  (p.  1945) 


2242         Consolidated  Summary  of  Recommendations 

798.  Section  32(4)  should  be  amended  to  provide  that  rules 
made  thereunder  be  made  by  the  Rules  Committee 
constituted  under  the  Judicature  Act.   (p.  193.3) 

THE  ONTARIO  FOOD  TERMINAL  BOARD 

799.  The  Ontario  Food  Terminal  Act  should  be  amended  to 
declare  the  policy  of  the  Act  with  respect  to  the  powers 
conferred  on  the  Board,  (p.  1956) 

800.  Standards  should  be  set  for  the  guidance  of  the  Board 
and  the  protection  of  the  public  in  the  exercise  of  its 
powers  to  grant  leases,  (p.  1956) 

801 .  Standards  should  be  set  for  the  guidance  of  the  Board  in 
the  exercise  of  its  powers  to  permit  or  refuse  to  permit 
persons  to  establish  and  operate  within  the  City  of 
Toronto  and  the  Counties  of  York  and  Peel,  markets  for 
the  sale  by  wholesale  of  fruit  and  vegetables,  and  to 
permit  or  refuse  to  permit  the  extension  or  enlargement 
of  such  markets  which  were  operated  on  the  1  st  of  April, 
1955.  (p.  1956) 

802.  There  should  be  a  right  of  appeal  to  an  appellate  body 
against  a  refusal  of  the  Board  to  grant  a  permit  to  oper- 
ate or  enlarge  a  market  for  the  sale  of  fruit  and  vege- 
tables by  wholesale,  (p.  1956) 

803.  All  rules  passed  by  the  Board  which  create  offences  or 
affect  the  public  interest  should  be  subject  to  the 
approval  of  the  Lieutenant  Governor  in  Council,  (p. 
1954) 

THE  ONTARIO  HIGHWAY  TRANSPORT  BOARD 

804.  Where  a  party  affected  by  an  application  to  the  Board 
so  requests  he  should  be  entitled  to  a  hearing  by  a 
quorum  of  three  members  of  the  Board,  (p.  1960) 

805.  The  Board  should  not  have  power  to  commit  for  con- 
tempt. The  powers  of  compulsion  should  be  exercised 
by  the  Supreme  Court  as  recommended  in  Report 
Number  1,  Chapter  32.  (p.  1960) 

806.  The  orders  of  the  Board  should  not  be  filed  with  the 
Registrar  of  the  Supreme  Court  but  they  should  be  filed 
with  the  secretary  of  the  Board  and  be  enforced  in  the 


Party  (Volume^)         2243 

same  manner  as  an  order  or  judgment  ol  the  Supreme 
Court,  (p.  1960) 

807.  The  Board  should  be  required  to  give  reasons  for  its 
decisions  if  recjuested  by  a  party  to  the  proceedings 
before  it.  (p.  1961) 

808.  The  right  to  appeal  to  the  Court  of  Appeal  by  way  of  a 
stated  case  should  not  be  dependent  on  the  subjective 
test  that  "in  the  opinion  of  the  Board"  the  matter  is  a 
question  of  law.  (p.  1961) 

809.  If  the  Board  refuses  to  state  a  case  on  a  question  of  law 
the  applicant  should  have  a  right  to  apply  to  the  Court 
of  Appeal  for  an  order  directing  the  Board  to  state 
a  case.  (p.  1961) 

810.  Where  the  Court  of  Appeal  has  given  an  opinion  on  a 
stated  case  the  Board  should  be  required  to  act  in 
accordance  with  the  opinion  of  the  Court  of  Appeal, 
(p.  1961) 

811.  Where  leave  to  appeal  to  the  Court  of  Appeal  has  been 
granted  under  the  provisions  of  the  Act  the  practice  and 
procedure  governing  the  appeal  should  be  consistent 
with  the  practice  and  procedure  governing  appeals  in 
the  Supreme  Court,  (p.  1962) 

812.  If  the  Board  takes  an  active  part  in  opposing  an  appeal 
and  is  unsuccessful  the  Court  should  have  a  discretion 
to  award  costs  against  the  Board,  (p.  1962) 

813.  The  right  of  appeal  by  petition  to  the  Lieutenant 
Governor  in  Council  should  be  clarified.  It  should  not 
include  a  question  of  law  or  interlocutory  matters,  (p. 
1962) 

814.  The  common  law  rules  of  liability  should  apply  where 
injury  has  been  caused  by  reason  of  the  wrongful  acts 
of  members  of  the  Board,  its  officers,  agents  or  employees 
with  a  right  to  indemnification  by  the  Crown  in  proper 
cases.  (See  Chapter  131  for  recommendations  concerning 
proceedings  against  the  Crown.)  (p.  1963) 

THE  ONTARIO  HOSPITAL  SERVICES  COMMISSION 

815.  Section  15(l)(c)  of  the  Act  enabling  regulations  to  be 
made  defining  words  used  in  the  Act  for  the  purposes  of 
the  Act  and  the  regulations  should  be  repealed,  (p.  1966) 


2244         Consolidated  Summary  of  Recommendations 

816.  Section  15(l)(h),  insofar  as  it  enables  regulations  to  be 
made  providing  for  the  discipline  of  patients,  should  be 
repealed,  (p.  1966) 

817.  O.  Reg.  1/67,  section  52  should  be  amended  to  permit  a 
solicitor  to  withdraw  as  solicitor  for  the  Commission 
where  there  is  any  difference  between  instructions 
received  from  the  individual  client  and  the  Commission 
and  in  such  case  to  permit  the  Commission  to  carry  on 
any  action  for  its  claim  on  its  own  behalf,  (p.  1969) 

818.  Sections  21(1)  and  22  respecting  certain  exemptions 
from  giving  evidence  should  be  repealed,  (p.  1970) 

819.  The  members  of  the  Commission  and  its  employees 
should  be  barred  from  communicating  information 
received  with  reference  to  a  patient  in  a  hospital  to  any- 
one unless  with  the  consent  of  the  patient  or  required 
to  do  so  by  legal  process,  (p.  1971) 

820.  Section  21(2)  of  the  Act  exempting  members  and  em- 
ployees of  the  Commission  from  personal  liability 
should  be  repealed,  (p.  1971) 

821.  Subject  to  proper  provisions  for  indemnification  no 
greater  protection  from  civil  liability  should  be  pro- 
vided for  the  members  of  the  Commission  and  its 
employees  than  is  provided  at  common  law.  See  Chapter 
131  for  discussion  of  Crown  liability  and  agents  of  the 
Crown,  (p.  1971) 

822.  Section  12  which  provides  that  the  Act  should  prevail  in 
the  event  of  conflict  with  other  statutes  should  be 
repealed,  as  should  similar  provisions  in  other  statutes, 
(p. 1973) 

823.  Section  20  should  be  amended  to  provide  that  fines 
levied  under  the  Act  should  be  paid  into  and  form  part 
of  the  Consolidated  Revenue  Fund.  (p.  1973) 

THE  ONTARIO  HUMAN  RIGHTS  COMMISSION 

824.  Power  should  be  conferred  on  the  Commission  to  con- 
sider the  report  of  a  board  of  inquiry,  (p.  1979) 

825.  Consideration  of  the  report  of  the  board  of  inquiry  by 
the  Commission  should  be  a  condition  precedent  to  its 
recommendation  to  the  Minister,  (p.  1979) 


Part  V  (Volume  5)         2245 

826.  The  Commission  should  have  power  to  aker  or  rescind 
the  recommendation  of  a  board  of  inquii7.  (p.  1979) 

827.  Any  person  affected  by  tlie  report  of  a  board  of  incpiii^ 
should  ha\e  a  riglu  to  make  submissions  to  the  Connnis- 
sion.  (p.  1979) 

828.  The  Minister's  order  should  be  enforceable  in  the  civil 
cotnts  where  it  shoidd  be  open  to  the  alleged  offender 
to  show  that  there  was  no  foimdation  for  it.  (p.  1982) 

829.  It  should  not  be  an  offence  punishable  by  a  fine  or 
imprisonment  to  disobey  the  Minister's  order,  (p.  1982) 

830.  Alternatively,  if  it  is  to  be  an  offence  to  disobey  the 
Minister's  order,  it  should  be  clearly  stated  in  the  Act 
that  the  accused  on  his  trial  may  avail  himself  of  any 
defences  he  might  have  raised  if  charged  with  having 
committed  a  breach  of  the  statute,  (p.  1982) 

831.  Section  13(2)  of  the  Act  which  confers  powers  on  a 
board  of  inquiry  and  persons  authorized  to  exercise  its 
powers  to  make  orders  of  committal  should  be  repealed 
and  provision  made  for  the  enforcement  of  the  board's 
orders  of  compulsion  in  accordance  with  our  recom- 
mendations made  in  Report  Number  1  (p.  441).  (p. 
1984) 

832.  Section  15  should  be  amended  by  adding  the  words  "or 
the  Attorney  General."  (p.  1983) 

THE  ONTARIO  LABOUR  RELATIONS  BOARD 

833.  The  Attorney  General  and  the  Minister  of  Labour 
should  have  power  to  institute  a  prosecution  under  the 
Act  without  the  consent  of  the  Board,  (p.  1994) 

834.  The  orders  of  the  Board  made  under  section  65  of  the 
Act  should  be  made  enforceable  in  the  same  manner  as 
orders  of  the  Supreme  Court  upon  filing  with  the  Regis- 
trar of  the  Board  and  without  being  filed  with  the 
Registrar  of  the  Supreme  Court  and  entered  as  judg- 
ments of  that  Court,  (p.  1995) 

835.  The  Board,  persons  to  whom  its  pow-ers  are  delegated,  a 
conciliation  board,  a  mediator  and  an  arbitrator  should 
not  have  all  the  powers  of  a  court  of  record  in  civil 
cases.    The  Act  should  be  amended  to  provide  for  the 


2246         Cotisolidated  SunDymry  of  Recommendations 

enforcement  of  the  Board's  orders  as  recommended  in 
Report  Number  1,  p.  441#.  (p.  1996) 

836.  The  powers  of  compulsion  to  be  exercised  by  a  donee 
of  the  Board's  powers  should  be  clearly  defined  by 
statute.  The  donee  of  the  powers  should  not  have  power 
to  decide  the  scope  of  his  powers,  (p.  1997) 

837.  Where  the  Board  has  authorized  the  chairman  or  vice- 
chairman  to  make  an  inquiry  under  section  77(2)(h)  the 
Act  should  require, 

(a)  that  the  referee  give  reasons  for  his  decisions; 

(b)  that  a  copy  of  the  report  and  reasons  of  the  referee 
be  furnished  to  those  affected,  and 

(c)  that  parties  affected  by  the  report  have  a  right  of 
appeal  from  the  findings  of  the  referee  to  the  Board. 
(pp.  1999-2000) 

838.  Rule  46(1)  (O.  Reg.  264/66)  should  be  amended  to 
read: 

"\V^here  it  appears  to  the  Board  that  an  application  or  com- 
plaint is  without  foundation  in  law  or  is  frivolous  or  vexa- 
tious the  Board  may  dismiss  the  application  without  a 
hearing  giving  its  reasons  in  ^vriting  and  notifying  the  appli- 
cant or  complainant  that  he  has  a  right  to  have  the  decision 
reviewed  by  the  Board."  (p.  2003) 

839.  Provision  should  be  made  giving  parties  who  may  be 
specifically  affected  by  a  decision  of  the  Board  a  right 
to  such  reasonable  adjournments  asked  for  in  good  faith 
as  may  be  appropriate  in  the  circumstances,  (p.  2004) 

840.  Where  a  division  of  the  Board  considers  that  a  matter 
should  be  discussed  by  the  full  Board  or  a  larger  division 
of  the  Board,  the  parties  should  be  notified  and  given  an 
opportunity  to  be  heard,  (p.  2005) 

841.  The  Board  should  be  required  to  give  reasons  for  its 
decisions  in  all  cases  if  requested,  (p.  2006) 

842.  The  words  "and  the  action  or  decision  of  the  Board 
thereon  is  final  and  conclusive  for  all  purposes"  should 
be  struck  out  of  section  79(1)  and  section  80  should  be 
repealed,  (p.  2007) 

843.  The  testimonial  privilege  created  by  sections  81  and  83 
should  be  limited  to  information  obtained  on  pro- 
ceedings before  conciliation  boards,  (p.  2011) 


Part  V  (Volume  ^)         2247 

THE  ONTARIO  MUNICIPAL  BOARD 

844.  A  complete  catalogue  of  the  powers  conferred  on  the 
Board  should  be  made  available  to  the  public,  (p.  2016) 

845.  A  study  should  be  made  of  ways  and  means  to  make 
more  efrcctive  use  of  ilic  personnel  of  the  Board  by 
giving  power  to  one  member  of  the  Board  to  conduct 
less  important  or  more  routine  hearings  so  as  to  make 
it  possible  to  assign  three  members  of  the  Board  to  more 
dilTicult  hearings  and  to  hearings  for  the  review  of 
previous  decisions  under  section  42  of  the  Act.  (p.  2017) 

846.  The  provisions  of  section  38  concerning  references  to 
the  Board  under  letters  patent  issued  under  the  Corpora- 
tions Act  or  any  general  or  special  Act  and  power  to 
conduct  hearings  should  be  repealed,  (p.  2021) 

847.  The  Board  should  not  have  power  on  its  own  motion  to 
enter  upon  the  determination  of  any  matter  in  which  it 
exercises  a  judicial  function,  (p.  2021) 

848.  The  Lieutenant  Governor  in  Council  should  not  have 
powder  to  require  the  Board  to  exercise  its  judicial  func- 
tions unless  the  Government  has  an  interest  in  the 
matter  to  be  determined,  (p.  2021) 

849.  The  statute  should  define  the  administrative  powers 
that  the  Board  should  have  to  exercise  on  its  own 
motion  and  those  administrative  matters  that  the 
Lieutenant  Governor  in  Council  should  have  the  power 
to  ask  the  Board  to  determine,  (pp.  2021-22) 

850.  The  Lieutenant  Governor  in  Council  should  not  have 
power  to  appoint  counsel  to  appear  before  the  Board  on 
any  matter  in  which  the  Government  has  no  interest. 
Nor  should  the  Board  have  power  to  award  the  costs  of 
counsel  appearing  on  behalf  of  the  Government  against 
other  parties  to  a  dispute  before  the  Board.  Section  41 
should  be  repealed,  (p.  2022) 

851.  Where  the  Board  exercises  judicial  functions  there 
should  be  no  right  to  a  rehearing  before  the  Board  but 
wide  rights  of  appeal  should  be  provided,  (p.  2023) 

852.  There  should  be  no  power  to  grant  a  rehearing  of  a 
rehearing  except  in  defined  exceptional  circumstances, 
(p. 2023) 


2248  Consolidated  Summary  of  Recommendations 

853.  Sections  36(1  )(c)  and  47  should  be  redrafted  so  as  to 
confine  the  compulsive  powers  of  the  Board  to  matters 
over  which  it  has  jurisdiction  to  exercise  a  power  of 
decision,  (p.  2025) 

854.  Section  48  conferring  on  the  Board  wide  powers  to 
require  any  person,  company,  corporation  or  municipal- 
ity subject  to  its  jurisdiction  to  adopt  such  precautions 
as  the  Board  may  deem  expedient  for  the  safety  of  life 
or  property  should  be  repealed,  (p.  2025) 

855.  Section  49  should  be  repealed,  (p.  2026) 

856.  Section  50  should  be  repealed.  If  there  is  default  with 
respect  to  orders  coming  within  the  section  they  should 
be  enforced  through  the  courts  with  proper  provisions 
for  a  hearing,  (p.  2026) 

857.  Section  51  providing  that  the  Board  has  power  to 
enforce  its  orders  and  directions  respecting  any  public 
utility  in  the  manner  and  by  the  means  provided  in 
section  261  of  the  Railways  Act  should  be  repealed. 

An  appropriate  section  should  be  enacted  as  part 
of  the  Ontario  Municipal  Board  Act  conferring  on  the 
Board  only  such  powers  as  may  be  necessary  for  the 
enforcement  of  its  orders  and  complying  with  our 
recommendations  in  Report  Number  1  (p.  44 Iff.),  (pp. 
2026-27) 

858.  The  Board  should  not  have  power  to  make  orders  for 
the  seizure  of  public  utilities,  (p.  2027) 

859.  Section  37  conferring  on  the  Board  such  powers  for  the 
enforcement  of  its  orders  as  are  vested  in  the  Supreme 
Court  should  be  amended  so  as  to  conform  to  our  rec- 
ommendation in  Report  Number  1    (p.  446).   (p.  2027) 

860.  Section  52  conferring  the  powers  vested  in  any  court  of 
civil  jurisdiction  on  inspecting  engineers  or  persons 
appointed  under  the  Act  to  make  an  inquii^  should  be 
repealed,  (p.  2027) 

861.  Section  82  should  be  amended  so  that  orders  or  decisions 
of  the  Board  will  not  have  "the  like  effect  as  if  enacted 
in"  the  Act.  (p.  2030) 

862.  Section  84(2)  conferring  powers  on  the  Board  to  make 
orders  ex  parte  should  be  repealed,  (p.  2030) 


Part  V  (Volume  5)         2249 

863.  Section  85  providing  for  filing  orders  of  the  Board  in  the 
office  of  the  Registrar  of  the  Supreme  Court  and  ilie 
enforcement  of  its  orders  as  judgments  of  the  Sujireme 
Court  shoidd  be  repealed  and  provision  made  lor  filing 
all  orders  of  the  Board  or  those  of  the  Lieutenant  Gover- 
nor in  Council  made  on  appeal  from  an  order  of  the 
Board  with  the  Registrar  of  the  Board  and  for  their 
enforcement,  (p.  2031) 

864.  The  processes  for  the  enforcement  of  orders  of  the 
Supreme  Court  are  not  generally  appropriate  for  the 
enforcement  of  the  Board's  orders.  Provision  should  be 
made  for  the  enforcement  of  the  Board's  order  conform- 
ing to  our  recommendations  in  Report  Number  1 
(p.  446).  (p.  2032) 

865.  The  principle  of  res  judicata  should  apply  to  decisions 
of  the  Board.  The  Board  should  be  bound  by  the  deter- 
mination of  facts  by  the  courts  where  the  parties  and 
issues  are  the  same.  (p.  2034) 

866.  The  Board  should  have  clear  statutory  power  to  order 
a  stay  of  its  proceedings  where  the  issue  before  it  is 
involved  in  a  matter  pending  before  the  courts,  (p.  2034) 

867.  Where  proceedings  are  pending  in  a  court  or  other 
tribunal  with  respect  to  a  matter  pending  before  the 
Board  any  party  to  the  proceedings  should  be  permitted 
to  apply  to  the  court  or  other  tribunal  for  a  stay  of  the 
proceedings  until  the  Board  has  made  its  decision. 
(p.  2035) 

868.  It  should  be  made  clear  that  an  application  for  a  stated 
case  may  be  made  at  any  stage  of  the  proceedings  before 
the  Board,  (pp.  2035-36) 

869.  Where  judgment  is  given  on  a  stated  case  the  Board 
should  be  required  to  act  in  accordance  Avith  the  judg- 
ment of  the  Court  of  Appeal,  (pp.  2035-36) 

870.  When  a  case  has  been  stated  the  opinion  of  the  Court 
of  Appeal  should  be  final  and  conclusive,  (pp.  2035-36) 

871.  If  the  Board  refuses  to  state  a  case  any  party  to  the  pro- 
ceedings should  have  a  right  to  apply  to  the  Court  of 
Appeal  for  an  order  that  the  Board  state  a  case.  (p.  2036) 


2250         Consolidated  Summary  of  Recommendations 

872.  The  power  vested  in  the  Lieutenant  Governor  in 
Council  to  require  the  Board  to  state  a  case  for  the 
Court  of  Appeal  should  be  restricted  to  those  cases 
where  an  appeal  has  been  taken  to  the  Lieutenant 
Governor  in  Council  from  a  decision  of  the  Board, 
(p.  2036) 

873.  It  should  be  made  clear  that  a  right  of  appeal  to  the 
Court  of  Appeal  does  not  lie  from  decisions  made  under 
Part  IV  of  the  Act  if  that  is  the  legislative  intention, 
(p.  2037) 

874.  Provision  should  be  made  for  a  transcript  of  proceedings 
before  the  Board  where  required  by  the  parties,  (p. 
2037) 

875.  Section  95(2)  making  provision  for  a  mandatory  pro- 
cedure concerning  the  setting  dow^n  of  appeals  should 
be  amended  to  make  the  procedure  conform  w'ith  that 
set  down  in  the  Rules  of  Practice  and  Procedure  of  the 
Supreme  Court.  The  Court  should  have  power  to 
relieve  against  hardship  in  the  enforcement  of  the  rules, 
(p.  2038) 

876.  The  rights  of  appeal  from  decisions  of  the  Board  should 
be  uniform  irrespective  of  the  statute  under  which  the 
powers  of  decision  are  confen^d.  (p.  2039) 

877.  There  should  be  no  right  of  appeal  to  the  Lieutenant 
Governor  in  Council  from  a  decision  of  the  Board  where 
the  po^ver  of  decision  exercised  is  a  judicial  or  inter- 
locutory decision,  (p.  2040) 

878.  The  privative  clause  of  the  statute,  section  95(7),  should 
be  repealed,  (p.  2041) 

THE  ONTARIO  SECURITIES  COMMISSION 

879.  The  Act  should  provide  that  members  of  the  Commis- 
sion should  be  appointed  for  fixed  terms  and  should  be 
removable  only  for  cause,  (p.  2069) 

880.  The  Act  should  provide  that  the  Chairman  and  Director 
of  the  Commission  each  have  legal  training,  (pp.  2069- 
70) 


Part  V( Volume  5)         2251 

881.  Section  2(3)  of  the  Act  siiould  be  amended  to  provide 
that  a  quoriun  shall  consist  of  three  members  including 
the  Chairman  or  a  member  of  the  Commission  with 
legal  training,  (p.  2070) 

882.  Section  5,  paragiaph  1  should  be  amended  to  provide 
that  (a)  the  notice  of  hearing  be  sent  at  least  10  days 
prior  to  the  hearing  with  power  in  a  member  of  the 
Commission  to  abridge  the  time  where  on  reasonable 
grounds  he  deems  it  proper;  (b)  persons  or  companies 
affected  be  permitted  to  waive  the  10  day  notice,  and 
(c)  persons  appearing  at  the  hearing  have  a  right  to  be 
heard  and  this  be  set  out  in  the  notice,  (p.  2071) 

883.  Section  5,  paragraph  2  and  section  21(4)  should  be 
amended  to  make  it  clear  that  neither  the  Commission 
nor  any  person  other  than  a  judge  of  the  Supreme  Court 
has  power  to  commit  for  contempt,  (p.  2072) 

884.  Section  5,  paragraph  3  should  be  amended  to  provide 
that  in  determining  the  relevance  of  evidence  the  pre- 
siding officer  should  employ  such  standards  of  proof  as 
are  commonly  relied  on  by  reasonable  and  prudent  men 
in  the  conduct  of  their  own  affairs,  (p.  2074) 

885.  Section  5,  paragraph  4  should  be  amended  to  read  ".  .  . 
oral  evidence  received  shall  be  taken  down  in  writing  or 
by  any  other  method  authorized  under  the  Evidence 
Act."  (p.  2074) 

886.  Section  5,  paragraph  5  should  be  amended  to  make  it 
clear  that  findings  of  fact  must  be  based  exclusively  on 
the  evidence  at  the  hearings  and  on  matters  officially 
noticed  which  have  been  disclosed  to  the  parties,  (p. 
2073) 

887.  Section  5,  paragraph  6  should  provide  that  the  notice  of 
decision  should  include  a  reference  to  the  rights  of 
appeal  available  from  the  decision,  (p.  2073) 

888.  Where  powers  of  decision  are  being  exercised,  the  Act 
should  provide  an  express  right  of  counsel  to  examine 
and  cross-examine  witnesses  and  make  submissions. 
There  should  be  express  powers  to  grant  adjournments 
and  to  take  official  notice.  The  Act  should  provide  that 
hearings  are  to  be  in  public  unless  the  presiding  officer 


2252  Consolidated  Summary  of  Recommendations 

decides  that  there  is  good  reason  for  holding  a  private 
hearing,  (pp.  2073-74) 

889.  Where  powers  of  investigation  are  being  exercised,  the 
provisions  of  the  Public  Inquiries  Act  as  recommended 
in  Report  Number  1  should  apply,  (p.  2073) 

890.  Sections  29  and  59  should  be  amended  to  provide  for  a 
right  of  appeal  from  decisions  under  section  59.  (p.  2076) 

891.  Where  possible,  the  criteria  for  action  by  the  Commis- 
sion should  be  more  clearly  specified  than  by  a  mere 
statement  that  it  may  act  "where  in  its  opinion  such 
action  is  in  the  public  interest."  Where  criteria  have 
been  specified,  the  Court  of  Appeal  should  have  power 
to  set  aside  the  decision  -where  on  the  record  the  action 
taken  by  the  Commission  is  not  warranted. 

Where  it  would  frustrate  the  scheme  of  the  Act  to 
establish  criteria  for  action,  the  Court  of  Appeal  should 
have  power  to  set  aside  the  decision  where  there  is  no 
reasonable  evidence  to  support  the  opinion  of  the  Com- 
mission that  its  action  is  in  the  public  interest,   (p.  2077) 

892.  Standards  should  be  set  out  in  the  Act  for  the  exercise 
of  the  licensing  powers,  (p.  2079) 

893.  Conduct  which  may  give  rise  to  the  cancellation  or  sus- 
pension of  registration  should  be  specified  as  clearly  as 
possible  in  the  legislation,  (p.  2079) 

894.  Section  21(1)  and  (2)  should  be  amended  to  provide  that 
the  Commission's  power  to  conduct  an  investigation  be 
conditioned  on  the  approval  of  the  Minister.  All  investi- 
gations under  the  Act  should  be  subject  to  the  approval 
of  the  Minister  and  be  limited  to  matters  "expedient  for 
the  due  administration  of  the  Act."  (p.  2081) 

895.  The  Act  should  be  amended  to  provide  that  on  investi- 
gations any  person  against  whom  specific  allegations  of 
misconduct  have  been  made,  has  a  right  to  be  examined 
by  his  own  counsel  before  he  is  examined  by  Commis- 
sion counsel,  (p.  2082) 

896.  Section  24  should  be  amended  to  prohibit  the  communi- 
cation of  information  obtained  by  the  Commission,  its 
officers,  sen  ants  or  agents  in  the  exercise  of  their  powers 


Part  V( Volume  5)         ^253 

under  the  Act  beyond  that  which  is  necessary  for  the 
purposes  of  the  Act  and  the  administration  of  justice, 
(p. 2083) 

897.  Section  26  should  be  amended  to  make  it  clear  that  the 
powers  which  may  be  exercised  thereunder  may  be  exer- 
cised only  when  the  Commission  has  decided  to  order 
an  immediate  investigation  or  to  make  "a  direction, 
decision,  order  or  ruling  suspending  or  cancelling"  a 
registration  or  where  some  step  has  been  taken  to 
institute  criminal  proceedings  or  proceedings  in  respect 
of  a  contravention  of  the  Act.  (p.  2084) 

898.  Section  59  should  be  amended  to  make  it  clear  that  an 
opportunity  to  be  heard  must  be  atforded  before  a 
decision  can  be  made  under  the  section,  (p.  2085) 

899.  Section  89  of  the  Act  should  be  amended  to  provide  that 
the  application  for  an  exempting  order  should  be  made 
in  the  first  instance  to  the  Securities  Commission  with  a 
right  of  appeal  to  the  Court  of  Appeal,  (p.  2087) 

900.  Section  84(3)  of  the  Corporations  Act  should  be 
amended  to  provide  that  the  application  for  the  order 
be  made  in  the  first  instance  to  the  Securities  Commis- 
sion with  a  right  of  appeal  to  the  Court  of  Appeal, 
(p. 2087) 

901.  Where  an  exempting  order  is  made,  a  shareholder 
should  have  a  right  to  apply  to  the  Commission  for 
reasons  for  its  decision,  (p.  2087) 

902.  Section  139(2)  should  be  amended  to  provide  for  a  right 
to  a  hearing  before  the  powers  thereunder  are  exercised 
by  the  Commission,  (p.  2088) 

903.  Section  142(1)  should  be  amended  to  substitute  for  the 
consent  of  the  Minister  the  consent  of  the  Attorney 
General  to  bring  an  action,  or  the  section  should  be 
repealed,  (p.  2090) 

904.  Section  142(2)  should  be  repealed,  (p.  2091) 

905.  Sections  111(4)  and  137(1)  should  be  amended  to  delete 
the  requirements  for  consent  to  prosecute  by  the  Com- 
mission or  Minister.  The  consent  or  authority  should 
come  from  the  Attorney  General,  (p.  2092) 


2254         Cojisolidated  Summary  of  Recommendations 

906.  Sections  116  and  131  should  be  amended  to  provide 
that, 

(1)  orders  thereunder  should  be  made  only  after  con- 
sideration of  the  public  interest; 

(2)  orders  thereunder  be  reported  to  the  Minister  who 
is  responsible  to  the  Legislature  for  the  administration 
of  the  Act.  (p.  2094) 

THE  ONTARIO  TELEPHONE  SERVICE  COMMISSION 

907.  Where  a  member  of  the  Commission  authorized  to 
report  to  the  Commission  exercises  the  powers  of  investi- 
gation conferred  under  section  7  he  should  be  required 
to  notify  the  parties  affected  and  give  them  an  oppor- 
tunity to  be  heard,  (p.  2099) 

908.  Where  a  member  of  the  Commission  makes  a  report  to 
the  Commission  under  the  provisions  of  section  7  a  copy 
of  the  report  should  be  furnished  to  any  party  who  has 
made  representations  to  the  member  conducting  the 
investigation  and  the  Commission  should  give  any  such 
party  an  opportunity  to  be  heard  before  coming  to  a 
final  decision,  (p.  2099) 

909.  The  minimum  rules  of  procedure  recommended  in 
Report  Number  1  should  apply  to  those  investigations 
conducted  under  the  authority  of  the  Commission 
which  precede  a  decision  affecting  rights,  and  a  code  of 
rules  of  procedure  should  be  formulated,  (p.  2099) 

910.  Where  an  inquiry  is  conducted  under  section  13  the 
parties  affected  should  have  an  opportunity  to  be  heard 
before  any  report  is  made  and  a  copy  of  the  report 
should  be  furnished  to  parties  affected  if  required  by 
them.  (p.  2100) 

911.  Before  the  Commission  makes  a  decision  with  respect  to 
a  report  made  under  section  13  the  parties  affected 
should  have  an  opportunity  to  be  heard,  (p.  2100) 

912.  The  Commission  should  not  have  power  to  commit  for 
contempt,  (p.  2100) 

913.  The  provision  requiring  the  applicant  for  a  stated  case 
to  give  security  for  costs  should  be  repealed,  (p.  2101) 


Part  V  (Volume  5)         2255 

914.  The  Court  of  Appeal  should  ha\e  power  to  direct  the 
Commission  to  state  a  case  where  the  Commission 
refuses  to  do  so.  (p.  2101) 

915.  The  right  of  appeal  to  the  Lieutenatit  Governor  in 
Council  should  not  apply  to  (juestions  of  law.  (p.  2102) 

916.  Regulations  and  orders  in  the  nature  of  regulations 
made  by  the  Commission  should  not  be  exempted  from 
the  Regulations  Act.  (p.  2103) 

917.  No  one  should  be  subject  to  a  penalty  unless  he  fails  to 
do  something  recjuired  of  him  under  an  order  of  the 
Commission  of  which  he  has  been  notified,  (p.  2108) 

THE  ONTARIO  WATER  RESOURCES  COMMISSION 

918.  Section  18  of  the  Act  should  be  amended  to  make  it 
clear  that  the  Commission  is  liable  to  restore  the  lands, 
buildings,  etc.,  of  a  person  that  may  have  been  disturbed. 
The  Commission  should  also  be  liable  to  pay  compensa- 
tion for  any  damage  to  property  w^hich  cannot  be 
repaired,  (p.  2108) 

919.  The  provisions  in  sections  19(1),  34  and  all  other  pro- 
visions in  the  Act  dealing  with  matters  related  to  expro- 
priation which  conflict  with  the  Expropriations  Act, 
1968-69  should  be  repealed,  (pp.  2109  and  2121) 

920.  Section  19(1)  should  also  be  amended  to  provide  that 
the  Commission  may  use  the  waters  of  any  lake,  river, 
etc.,  "as  may  be  necessary  for  its  purposes"  and  not  "as 
may  be  deemed  necessaiy  for  its  purposes."  (p.  2109) 

921.  Provision  should  be  made  for  compensation  for  loss 
suffered  by  riparian  owners  arising  out  of  the  exercise 
of  the  power  conferred  on  the  Commission  to  use 
water,  (p.  2109) 

922.  A  thorough  review  of  all  provincial  legislation  respect- 
ing the  use  of  water  should  be  conducted  with  a  view  to 

(a)  determining  a  coherent  policy  on  this  subject  and, 

(b)  removing  conflicting  statutory  provisions  relating 
thereto,  (p.  2112) 

923.  A  person  who  would  be  affected  by  an  appro\al  or  order 
permitting  the  discharge  of  sewage  into  a  lake,  river, 


2256         Consolidated  Summary  of  Recommendations 

stream  or  other  watercourse  gi'anted  under  section  27(2) 
should  have  an  opportunity  to  be  heard  before  such 
order  is  made.  (pp.  2113-14) 

924.  The  definition  of  an  area  that  includes  a  source  of  water 
supply  under  section  28(1)  should  be  by  way  of  regula- 
tion approved  by  the  Lieutenant  Governor  in  Council 
and  provision  should  be  made  that  those  within  the 
area  affected  should  be  furnished  with  a  copy  of  such 
regulation,  (p.  2115) 

925.  Section  28a  should  be  amended  to  provide  standards 
concerning  the  granting,  refusal  and  cancellation  of  per- 
mits thereunder  and  should  provide  for  procedural  safe- 
guards to  those  affected  and  a  right  of  appeal  from 
decisions  made  thereunder.  These  recommendations  are 
equally  applicable  to  section  28b  w^hich  should  also  con- 
tain a  provision  setting  out  the  standards  concerning  the 
purposes  for  which  a  regulation  may  be  passed  exempt- 
ing persons  or  substances  from  the  application  of  section 
28b(l).  (pp.  2114-16) 

926.  Section  28a(5)  should  be  amended  to  require  that  the 
Commission  must  find,  as  a  fact,  that  the  flowing  or  leak- 
ing of  water  as  referred  to  in  the  section,  interferes  with 
any  public  or  private  interest  in  any  water.  On  a  charge 
of  violating  a  notice  under  the  section  the  accused 
should  have  the  right  to  challenge  the  Commission's 
finding.  Alternatively,  there  should  be  a  right  of  appeal 
to  the  Court  from  the  finding  of  the  Commission  prior 
to  the  issuance  of  a  notice  under  the  subsection, 
(p.  2117) 

927.  Section  29  should  be  amended  to  set  the  standards 
which  should  affect  the  granting  or  refusing  and  cancel- 
lation of  a  licence,  to  provide  procedural  safeguards 
with  respect  to  licensing  proceedings  under  it,  and  to 
provide  a  right  of  appeal  from  decisions  made  under  it. 
(p.  2117) 

928.  Sections  30  and  31  should  be  amended  to  particularize 
in  greater  detail  the  standards  which  should  be  applic- 
able to  approvals  by  the  Commission  of  water  works  and 
sewage  works  and  should  provide  for  an  appeal  from 


Part  V  (Volume  5)         2257 

decisions  of  the  Commission  thereunder  to  the  Minister, 
(p.  21 18) 

929.  There  should  be  a  general  right  of  appeal,  i.e.,  one  not 
restricted  to  questions  of  jurisdiction  or  law,  from  deci- 
sions of  the  Ontario  Municipal  Board  under  section  32 
(closing  a  road),  (p.  2119) 

930.  Section  32  should  contain  an  express  provision  for  com- 
pensation for  those  injuriously  affected  by  orders  of  the 
Ontario  Miuiicipal  Board  with  respect  to  the  closing  of 
roads,  (p.  2120) 

931.  Section  32(6)  should  be  amended  insofar  as  it  bars  a 
right  of  action  for  damages  suffered  by  the  beneficiaries 
of  covenants  running  with  the  land  or  limitations 
placed  upon  the  estate  or  interest  in  the  lands.  The  sec- 
tion should  provide  for  compensation  for  such  persons, 
(p. 2120) 

932.  Section  33  of  the  Act  should  be  amended  to  provide  that 
the  determination  thereunder  should  be  made  by  the 
Land  Compensation  Board.  The  right  to  compensation 
should  be  for  the  loss  or  damage  caused  and  not  a  right 
to  be  compensated  "as  the  Board  deems  just".  There 
should  be  a  right  of  appeal  to  the  Court  of  Appeal  from 
a  judgment  thereunder,  (p.  2121) 

933.  The  powers  of  entry  conferred  by  section  47b  of  the 
Act  should  be  revised  so  that  they  become  exercisable 
only  upon  defined  conditions  precedent  being  satisfied 
and  the  inspectors  should  be  required  to  produce  proper 
identification  when  acting  under  the  section,  (p.  2122) 

934.  The  powers  to  make  exemptions  from  the  Act  by  regu- 
lation should  either  be  repealed  or  standards  set  for 
their  exercise  in  emergencies,  (p.  2123) 

935.  The  powers  to  investigate  referred  to  in  section  47(1) 
(kb)  should  be  conferred  by  the  statute  and  not  by 
regulation,  (p.  2123) 

THE  POLICE  ACT 

936.  Sections  12,  40(3),  48(2),  and  48a  (3),  (6),  (7)  and  (9) 
should  be  repealed  and  replaced  by  legislation  con- 
ferring powers  of  investigation  on  the  respective  bodies 


2258         Consolidated  Summary  of  Recommendations 

by  reference  to  the  Public  Inquiries  Act  recast  as  recom- 
mended in  Report  Number  1.  (p.  2129) 

987.  Provision  should  be  made  requiring  that  all  regulations 
made  by  boards  of  commissioners  of  police  under  section 
15  of  the  Act  shall  be  approved  by  the  Ontario  Police 
Commission  and  filed  with  that  body.  Such  regulations 
should  be  open  for  public  inspection,  (p.  2132) 

938.  The  Police  Act  and  the  Municipality  of  Metropolitan 
Toronto  Act  should  be  amended  to  delete  the  require- 
ment that  judges  be  appointed  to  boards  of  commis- 
sioners of  police  and  to  provide  expressly  that  judges 
shall  be  ineligible  for  such  appointments,  (p.  2131) 

939.  The  basic  provisions  relating  to  police  discipline  should 
be  contained  in  the  Act  and  not  in  the  regulations, 
(p.  2132) 

940.  The  presiding  officer,  a  board  of  commissioners  of 
police,  a  committee  of  council  and  the  Ontario  Police 
Commission  should  be  required  to  give  reasons,  if 
requested,  in  the  disposition  of  charges  involving  major 
or  minor  offences,  (pp.  2134  and  2138) 

941.  Where  the  officer  presiding  at  the  hearing  of  a  charge 
involving  a  minor  or  major  offence  has  previous  knowl- 
edge of  the  matters  relating  to  the  charge  he  should  be 
required  to  disclose  it  to  the  person  charged  and  such 
person  should  have  a  right  to  require  the  presiding 
officer  to  refer  the  matter  to  another  officer  for  trial  or 
to  the  board  of  commissioners  of  police  or,  where  there 
is  no  board,  to  a  committee  of  council. 

Where  the  presiding  officer  is  either  the  accuser  or 
witness  against  the  person  charged  he  should  be  dis- 
qualified from  hearing  the  charge,  (p.  2137) 

942.  The  respective  bodies  having  power  to  hear  disciplinary 
matters  should  have  power  to  summon  -w'itnesses  either 
for  the  prosecution  or  defence  in  accordance  wdth  our 
recommendations  in  Report  Number  1.  (p.  2139) 

943.  Provision  should  be  made  for  the  payment  of  witness 
fees  in  accordance  with  our  recommendations  in  Report 
Number  1.  (p.  2139) 


Part  V  (Volume  5)         2259 

THE  WORKMEN'S  COMPENSATION  BOARD 

944.  Section  50  should  be  amended  to  provide  that  the  Board 
pay  the  compensation  directly  to  infant  employees 
unless  a  reasonable  cause  is  shown  why  it  should  be 
paid  to  some  other  person,  (p.  2147) 

945.  Section  37(4)  should  be  clarified  so  as  to  provide  that 
compensation  should  be  paid  wherever  by  reason  of  an 
industrial  accident  to  a  workman  an  illegitimate  child 
has  been  depri\  ed  of  maintenance  which  it  was  entitled 
to  receive  from  the  workman,  (p.  2148) 

946.  Section  37(10)  should  be  amended  to  provide  that  pay- 
ment in  respect  of  a  child  may  be  made  to  a  person  other 
than  a  parent  when  the  Board  has  reasonable  grounds 
to  believe  that  payment  to  a  parent  would  not  be  in  the 
best  interests  of  the  child,  (p.  2148) 

947.  Section  37(2)  should  be  amended  to  provide  that  the 
Board  shall  on  application  extend  the  period  of  com- 
pensation to  dependent  children  after  the  age  of  16  for 
further  or  better  education  unless  on  reasonable 
grounds  the  Board  is  of  the  opinion  it  is  not  advisable, 
(p.  2149) 

948.  There  should  be  statutory  provision  requiring  the  con- 
sent of  the  workman  to  commutation  of  periodic  pay- 
ments of  compensation,  or  in  the  alternative,  the 
w^orkman  should  be  gi\'en  an  opportunity  to  be  heard 
on  written  notice  before  an  order  for  commutation  is 
made.  (p.  2151) 

949.  The  statute  should  provide  that  an  order  directing 
application  of  a  lump  sum  in  a  matter  other  than  as 
directed  by  the  workman  be  made  only  after  reasonable 
notice  in  writing  to  the  workman,  (p.  2152) 

950.  There  should  be  a  right  of  appeal  from  an  order  of 
commutation  or  order  directing  payment  of  a  lump  sum 
in  a  manner  other  than  as  directed  by  the  workman 
w^here  the  order  is  made  by  a  person  or  body  exercising 
the  powers  of  the  Board  by  delegation,  (pp.  2151-52) 

951.  Section  86(4)  should  be  amended  to  provide  that  the 
additional  percentage  levied  must  be  based  on  consider- 
ations affecting  the  fair  distribution  of  assesssment;  in 


2260         Consolidated  Summary  of  Recommendations 

other  cases  the  imposition  of  penalties  should  be  left 
to  the  ordinary  courts,  (pp.  2153-54) 

952.  Section  86(6)  should  be  redrafted  to  read: 

"Where  the  Board  finds  that  the  ways,  works,  machinery 
and  appliances  in  any  industry  conform  to  modern  standards 
in  such  manner  as  to  reduce  the  hazards  of  accidents  to  a 
minimum  and  all  proper  precautions  are  being  taken  by  the 
employer  for  the  prevention  of  accidents,  and  where  the 
accident  record  of  the  employer  has  in  fact  been  consistently 
good,  the  Board  may  reduce  the  amount  of  any  contribu- 
tion to  the  accident  fund  for  which  such  employer  is  liable." 
(p.  2155) 

953.  Section  108  should  be  amended  to  provide  that  the  per- 
centage penalty  be  prescribed  by  regulation,   (p.  2156) 

954.  If  the  purpose  of  the  legislative  powers  to  classify  and 
reclassify  industries  is  to  provide  an  equitable  distri- 
bution of  the  liability  to  contribute  to  the  accident  fund 
according  to  the  hazards  of  industry,  this  should  be 
clearly  stated  in  the  Act.  (p.  2156) 

955.  Section  86(2)  should  be  amended  to  provide  that  the 
power  of  the  Board  to  subdivide  classes  of  industries  be 
subject  to  the  approval  of  the  Lieutenant  Governor  in 
Council  and  the  words  "for  any  other  reason  it  is 
deemed  proper  to  do  so"  be  deleted,  (p.  2157) 

956.  Sections  75  and  65  should  be  repealed  and  replaced  by 
provisions: 

(1)  conferring  on  the  Board  powers  of  inquiry  limited 
to  the  purposes  of  the  Act; 

(2)  conferring  on  the  Board  powder  to  delegate  its 
powers  of  inquiry  in  proper  cases; 

(3)  conferring  a  right  to  apply  to  the  Supreme  Court 
for  an  order  enforcing  the  attendance  of  witnesses  and 
compelling  them  to  give  evidence  and  produce  docu- 
ments and  things,  (p.  2158) 

957.  Section  92(1)  should  be  amended  to  provide  that  the 
power  to  require  information  is  limited  to  the  purposes 
of  the  Act.  (p.  2159) 

958.  Section  92(6)  should  be  amended  to  delete  the  power 

of  the  Board  to  levy  an  additional  percentage  of  assess- 
ment for  a  default  punishable  on  summary  conviction. 


Party  (Volume  3)         2261 

If  the  power  of  the  Board  to  levy  an  additional  assess- 
ment or  interest  is  made  an  alternative  to  prosecution, 
a  standard  should  be  set  in  the  Act  or  regulations  passed 
by  the  Lieutenant  Governor  in  Council  limiting  the 
amount  that  may  be  assessed,  (p.  2159) 

959.  Provisions  for  the  summons  to  witness,  demand  for  pro- 
duction of  documents  and  payment  of  witness'  fees 
should  conform  to  our  recommendations  in  Report 
Number  1.  (p.  2160) 

960.  Section  94(2)  should  be  amended  to  provide  that  appli- 
cations for  orders  to  enter,  search  and  seize  be  made  to  a 
provincial  judge,  (p.  2160) 

961.  If  the  power  of  seizure  is  not  necessary  it  should  be 
repealed.  If  it  is  necessary,  the  Act  should  provide  that 
before  the  judge  issues  an  order  for  seizure  it  should  be 
shown  that  there  are  reasonable  grounds  to  believe 
that  a  sufficient  examination  cannot  be  made  in  the 
absence  of  seizure  or  that  there  are  reasonable  grounds 
to  believe  than  an  offence  under  the  Act  has  been  com- 
mitted, that  the  material  seized  will  afford  evidence  of 
the  offence  and  that  it  is  located  on  specified  premises. 
The  Act  should  provide  for  a  right  to  return  of  the 
material  seized  within  a  reasonable  time.  (p.  2161) 

962.  Section  97  should  be  amended  to  prohibit  disclosure  of 
information  gained  on  an  inquiry  except  for  the  pur- 
poses of  the  administration  of  the  Act  and  the  admin- 
istration of  justice,  (p.  2162) 

963.  The  procedure  for  considering  claims  should  be  set  out 
in  the  statute. 

(a)  The  first  step  in  the  consideration  should  be  in  the 
nature  of  an  investigation  and  recommendation  which 
can  be  accepted  in  whole  or  in  part  by  the  claimant. 

(b)  The  claimant  should  receive  a  copy  of  the  recom- 
mendation, with  written  reasons  together  with  a  state- 
ment that  the  Workmen's  Adviser  is  available  to  him  to 
assist  in  his  decision  whether  to  accept  the  recom- 
mendation. 

(c)  If  the  recommendation  is  accepted  it  should  have 
the  effect  of  a  decision  of  the  Board. 


2262         Consolidated  Summary  of  Recommendations 

(d)  If  the  recommendation  is  not  accepted,  the  claimant 
should  have  a  right  to  a  further  investigation  and  a 
further  hearing  in  the  first  instance. 

(e)  On  this  investigation  all  matters  should  be  open  for 
full  consideration  and  a  final  recommendation  made 
which,  if  accepted,  would  have  the  effect  of  a  decision 
of  the  Board. 

(f)  If  the  final  recommendation  is  not  accepted  there 
should  be  a  right  to  apply  to  the  Review  Committee  if 
it  is  continued.  Consideration  should  be  given  to 
abolishing  the  Review  Committee  and  if  this  is  done  the 
application  should  be  direct  to  the  Appeal  Tribunal. 

(g)  If  the  Review  Committee  is  retained,  the  claimant 
should  have  access  to  all  material  which  it  will  consider. 
The  Review  Committee  should  exercise  wide  powers  of 
investigation;  it  should  hear  representations  and  wit- 
nesses and  not  confine  its  considerations  to  the  file. 

(h)  If  the  recommendation  of  the  Review  Committee 
is  accepted,  the  matter  should  be  final  unless  reopened 
by  the  Board. 

(i)  If  the  recommendation  is  not  accepted  there  should 
be  a  right  to  apply  to  the  Appeal  Tribunal. 
(j)  The  claimant  should  have  access  to  all  material  that 
will  be  considered  by  the  Appeal  Tribunal.  The  Appeal 
Tribunal  should  prepare  written  reasons  for  its  decision 
which  should  be  made  available  to  the  claimant.  The 
claimant  should  be  advised  of  his  right  to  apply  to  have 
the  decision  of  the  Appeal  Tribunal  reconsidered  by  the 
Board,  (pp.  2172-73) 

964.  Section  97a  should  be  repealed  and  if  it  is  desired  to 
give  members  of  the  medical  profession,  etc.,  protection 
against  malpractice  suits  in  making  reports,  properly 
framed  legislation  should  be  enacted,  (p.  2177) 

965.  The  Act  should  provide  that  where  compensation  is 
refused  on  grounds  other  than  a  question  of  disability, 
the  Board  should  be  empowered  to  state  a  case  for  the 
opinion  of  the  Divisional  Court  of  the  High  Court  of 
Justice  on  any  question  of  law.  The  claimant  should 


Party  (Volume  5)         2263 

have  a  right  to  apply  to  the  Court  for  an  order  directing 
the  Board  to  state  a  case  if  it  refuses  to  do  so.  (p.  2179) 

966.  Where  the  Board  has  made  an  order  under  section  50 
directing  payment  of  compensation  otherwise  than  to  a 
workman,  there  should  be  a  right  of  appeal  to  the 
Divisional  Court  of  the  High  Court,  (p.  2180) 

967.  Employers  should  have  a  right  of  appeal  to  the  Minister 
from  Board  decisions  on  classifications  or  special  assess- 
ments, (p.  2180) 

968.  Sections  16  and  72(1)  should  be  repealed  insofar  as  they 
purport  to  restrict  judicial  review,  (p.  2182) 

969.  A  Workmen's  Adviser  or  Consultant  should  be 
appointed  by  Order-in-Council  to  assist  and  advise 
workmen  with  respect  to  claims  and  to  assist  them  at 
hearings  where  he  deems  it  advisable.  He  should  have 
access  to  all  relevant  files  and  materials.  He  should  not 
be  considered  to  be  an  advocate  of  special  interests  but 
one  w^ho  assists  in  promoting  justice. 

He  should  be  independent  of  the  Board  and  should 
have  sufficient  staff.  His  salary  and  that  of  the  staff 
should  be  paid  out  of  the  Consolidated  Revenue  Fund. 
(p.  2188) 

Section  2 

THE  PROCEEDINGS  AGAINST  THE 
CROWN  ACT,  1962-63 

970.  All  statutory  provisions  relieving  officers  and  servants  of 
the  Crown  from  liability  for  tortious  acts  should  be 
repealed,  (p.  2211) 

971.  Where  by  reason  of  the  nature  of  the  employment  of 
officers  or  servants  of  the  Crown  it  is  considered  just  that 
they  should  be  relieved  of  liability  for  damage  caused  by 
their  wrongful  acts,  provision  should  be  made, 

(a)  for  their  indemnification  for  loss  suffered,  or 

(b)  relieving  them  of  liability  while  maintaining  the 
liability  of  the  employer  be  it  the  Crow^n.  Crown 
agent  or  Crow^n  corporation,  notwithstanding  that 


2264         Consolidated  Summary  of  Recommendations 

the  officer  or  servant  is  by  statute  not  liable,  (p. 
2211) 

972.  In  no  case  should  the  victim  of  tortious  acts  of  officers  or 
servants  of  the  Crown,  Crown  agents  or  Crown  corpora- 
tions be  left  without  a  remedy,  (p.  2212) 

973.  Section  2(2)(b)  providing  that  nothing  in  the  Act  sub- 
jects the  Crown  to  proceedings  under  the  Act  in  respect 
of  a  cause  of  action  that  is  enforceable  against  a  corpora- 
tion or  other  agency  of  the  Crown  should  be  repealed, 
(p.  2212) 

974.  There  should  be  a  right  to  apply  to  the  court  for  an 
order  extending  the  10-day  period  for  giving  notice 
under  section  6a(3).   (pp.  2212-13) 

975.  The  provision  that  in  an  action  against  the  Crown  the 
Crown  may  refuse  to  produce  a  document  or  answer  a 
question  on  examination  for  discovery  on  the  ground 
that  the  production  or  answer  would  be  against  the 
public  interest  should  be  repealed.  The  common  law 
rules  of  Crown  privilege  should  apply  as  in  any  other 
action,  (p.  2214) 

976.  Section  10(b)  should  be  repealed  and  the  rules  of  court 
respecting  examinations  for  discovery  should  be  made 
to  apply  in  all  actions  against  the  Crown  as  if  the  Crown 
were  a  corporation  subject  to  the  application  of  the 
common  law  rules  as  to  Crown  privilege,  (p.  2215) 


Table  of  Statutes 

considered  in  Volume  5 


Statutes  Referred  to  in  Volumes  1-4 
appear  in  Volume  4,  p.  1682ff. 


2265 


1 

I 


I 


TABLE  OF  STATUTES 


Air  Pollution  Control  Act,  Ont.  1967, 
c.  2 

s.  6  1744 

s.6(l)(2)  1743 

s.  7  1743 

ss.  8(2)(3)(4)(5),  9 1744 

s.  10(1)  1714,  1746 

s.  10(2)  1744 

s.  11(1)  1744 

s.  11(10)  1746 

s.  14(l)(k)  1745 

s.  16  1745 

O.Reg.  449/67  as  amended  by  O.Reg. 
45/68 
s.  6  as  amended  by  O.Reg.  45/68, 

s.  2 1745 

s.  6(2)  1746 

Archaeological  and  Historic  Sites 

Protection  Act,  R.S.O.  1960,  c.  19 
ss.  2,  3,  4 1747 

Athletics  Control  Act,  R.S.O.  1960, 
c.  26 

s.  3    1748 

s.  5   1754 

s.  5(1)  1749.  1750 

s.  5(2)(3)  1749,  1750,  1751,  1755 

ss.6,  7  1754 

s.  9(1)  1751,  1752,  1755 

s.  12  1755 

s.  12(l)(d)(e)('f)(g)  1753 

s.  12(l)(h)  1752,  1753,  1755 

s.  12(1)(1)  1748 

s.  12(l)(n)  1748,  1753,  1755 

O.Reg.  26/67 

s.  1    1753 

s.4   1754 

s.  5   1752,  1754 

s.  11    1754 

Farm  Products  Marketing  Act, 
R.S.O.  1960,  c.  137 
s.  1(b)  as  amended  by  Ont.  1962-63, 
c.  45,  s.  1(1) 1761 

2267 


s.  1(e)  as  re-enacted  by  Ont.  1962-63, 

c.  45,  s.  1(2)  1762 

s.  1(h)  as  re-enacted  by  Ont.  1962-63, 

c.  45,  s.  1(4)  1764 

s.  2  as  re-enacted  by  Ont.  1962-63, 

c.  45,  s.  2 1756 

s.  3(1)(2)  1758,  1798 

s.  3(4a)  enacted  by  Ont.  1965, 

c.  39,  s.  1(2) 1758 

s.  3(5)  1758 

s.  4  1 766 

s.  4(1)  1788 

s.  4(l)(a)  1788,  1800 

s.  4(l)(aa)  as  re-enacted  by  Ont. 

1962-63,  c.  45,  s.  3(1)  1788 

s.  4(l)(b)  1788,  1800 

s.  4(l)(h)  1792 

s.  4(2)(3)  as  amended  by  Ont. 

1961-62,  c.  41,  s.  1,  Ont.  1962-63, 

c.  45,  s.  (l)-(2)  and  Ont.  1968-69, 

c.  37,  s.  l(l)-(4)  1788 

s.  4(4)  as  amended  by  Ont.  1962-63, 

c.  45,  s.  3  1769,  1772 

s.  4(4)(a)  as  re-enacted  by  Ont. 

1962-63,  c.  45,  s.  3(3)  1772 

s.4(5)  1759 

s.  4(6)  as  re-enacted  by  Ont.  1968-69, 

c.  37,  s.  1(5) 1797,  1798,  1802 

s.  5  repealed  by  Ont.  1962-63, 

c.  45,  s.  4  1765 

s.  5(1)  as  re-enacted  by  Ont.  1962-63, 

c.  45,  s.  4  1764 

s.  6  1768 

s.  6(1)  1769 

s.  6(l)(a) 1757,  1759,  1765 

s.  6(l)(f)  as  re-enacted  by  Ont. 

1962-63,  c.  45,  s.  5(3)  ....1771,  1799 

s.  6(l)(g)  1771,  1799 

s.  6(3)  1759 

5.6(4)  1760,  1798 

s.  7  1789,  1801 

s.  8  1766,  1775,  1778 


2268         Table  of  Statutes 


s.  8(1)  as  amended  by  Ont.  1961-62, 
c.  41,s.  2;  Ont.  1962-63,  c.  45, 
s.  6(1)-(12);  Ont.  1965,  c.  39,  s.  3; 
Ont.  1966,  c.  56,  s.  1;  Ont.  1968, 
c.  40,  s.  3  and  Ont.  1968-69,  c.  37, 

s.  3(l)-(2)  1761,  1769 

s.  8(1),  para.  1 1758,  1762,  1774 

s.  8(1),  para.  2 1774 

s.  8(1),  para.  3  . .  1774,  1775,  1776,  1799 

s.  8(1),  para.  4 1774 

s.  8(1),  para.  5  as  repealed  by  Ont. 

1965,  c.  39,  s.  3(1) 1778 

s.  8(1),  para.  9  as  re-enacted  by  Ont. 

1962-63,  c.  45,  s.  6(3)  1767 

s.  8(1),  para.  11   1758 

s.  8(1),  para.  11a  as  enacted  by  Ont. 
1962-63,  c.  45,  s.  6(4)  and 
amended  by  Ont.  1966,  c.  56, 

s.  1(1) ' 1758,  1778 

s.  8(1),  para.  11a  (ii),  (iii)  as  enacted 
by  Ont.  1962-63,  c.  45.  s.  6(4)  and 
(iv)  as  re-enacted  by  Ont.  1966, 

c.  56,  s.  1(1)  1787 

s.  8(1),  para,  lib  as  enacted  by  Ont. 
1962-63,  c.  45,  s.  6(4)  and 
amended  by  Ont.  1966,  c.  56, 

s.  1(1)  1758 

s.  8(1),  para.  12  1769,  1799 

s.  8(1),  para.  12a  as  re-enacted  by 

Ont.  1966,  c.  56,  s.  1(3)  1758 

s.  8(1),  para.  13  as  amended  by  Ont. 

1968-69,  c.  37,  s.  3(1) 1779,  1780 

s.  8(1),  paras.  16-19  as  amended  by 

Ont.  1965,  c.  39,  s.  3(3)(4)  1758 

s.  8(1),  para.  20  as  re-enacted  by 

Ont.  1968-69,  c.  37,  s.  3(2) 1758 

s.  8(1),  para.  22  as  amended  by  Ont. 
1962-63,  c.  45,  s.  6(9)  ....  1770,  1799 

s.  8(1),  para.  24  1761 

s.  8(1),  para.  25  as  enacted  by  Ont. 

1962-63,  c.  45,  s.  6(10)   1765 

s.  8(1),  para.  28a  as  enacted  by  Ont. 
1962-63,  c.  45,  s.  6(12)  and 
amended  by  Ont.  1966,  c.  56, 

s.  1(4)  1758 

s.  8(5)  as  amended  by  Ont.  1962-63, 
c.  45,  s.  6(14)..  1759,  1761,  1769,  1775 


s.  9  1766 

s.  9(1)  as  amended  by  Ont.  1962-63, 

c.  45,  s.  7(l)-(7);  Ont.  1968,  c.  40, 

s.  4  and  Ont.  1968-69,  c.  37, 

s.  4(l)-(3) 1769,  1770,  1799 

s.9(3)(f)  1768 

s.  9(5)(a)  1768 

s.  10(b)  as  re-enacted  by  Ont. 

1962-63,  c.  45,  s.  8 1772 

s.  10a  as  enacted  by  Ont.  1965,  c.  39, 

s.  4  ....1778,  1779,  1782,  1784,  1800 
s.  10a(2)(b)  as  enacted  by  Ont.  1965, 

c.  39,  s.  4 1785 

s.  10a(7)  as  enacted  by  Ont.  1965, 

c.  39,  s.  4 1779,  1785 

s.  12(3)  as  re-enacted  by  Ont.  1964, 

c.  31,  s.  1    1769 

s.  12(3)(f)  as  re-enacted  by  Ont. 

1964,  c.  31,  s.  1  1769,  1780 

s.  12a  as  enacted  by  Ont.  1968-69, 

c.  37,  s.  5  1 1792 

s.  13  as  re-enacted  by  Ont.  1968-69, 

c.  37,  s.  6 !..1790,  1792,  1801 

s.  14  1801 

s.  14(1)  as  re-enacted  by  Ont. 

1968-69,  c.  37,  s.  7 1793,  1801 

s.  14(2)  as  re-enacted  by  Ont. 

1968-69,  c.  37,  s.  7 1793 

s.  14(2)(b)     1801 

s.  17(1)  1794,  1795,  1801 

s.  17(2)  1795,  1801 

s.  18  as  amended  by  Ont.  1962-63, 

c.  45,  s.  11  and  Ont.  1966,  c.  56, 

s.  2  1758,  1770,  1777 

s.  18(1),  para.  12  1770 

s.  18(2)  as  enacted  by  Ont.  1962-63, 

c.  45,  s.  1 1(2)  and  amended  by 

Ont.  1965,  c.  39,  s.  5(1)  and  Ont. 

1966,  c.  56,  s.  2(2)  1769 

s.  18(2)(a)  as  enacted  by  Ont.  1962-63, 

c.  45,  s.  11 1776,  1777,  1799 

s.  18(2)(b)  1778 

s.  18(2)(b)(ii)-(iv)  as  enacted  by 

Ont.  1962-63,  c.  45,  s.  11  and 

amended  by  Ont.  1965,  c.  39, 

s.  5(1)  and  Ont.  1966,  c.  56, 

s.  2(1)(2)  1787 


s.  18(2)(d)  as  re-enacted  by  Ont. 

1965,  c.  39,  s.  5(1) 1795,  1801 

s.  18(4)  as  enacted  by  Ont.  1962-03, 

C.45,  s.  11(1) 1769,  1796 

R.R.O.  1960 
Reg.  147 
s.  6(h)  as  remade  by  O.Reg.  95/67, 

s.  2(2)  1769 

Reg.  151 

s.5(3)  1779 

Reg.  173 

s.  4(l)(p)  as  remade  by  O.Reg. 
186/65,  s.  1  and  amended  by 

O.Reg.  91/68,  s.  1 1796 

O.Reg.  184/66 

s.  1  1766 

O.Reg.  98/67 

s.2  1772 

Fire  Marshals  Act,  R.S.O.  1960, 
c.  148 

s.  2(1)(2)(3)(4)  1803 

s.  3  1803 

S.4  1803,  1806 

s.  5  1806 

s.  12  1803,  1805 

s.  12(c)  1806,  1807,  1808 

s.  13  1806 

s.  19  as  amended  by  Ont.  1960-61, 

c.  29,  s.  1  1803 

s.  19(2)(4)  1804 

s.  19(5)  as  amended  by  Ont.  1960-61, 

c.  29,  s.  1(1)  1805 

s.  19(6)  1805,  1807 

R.R.O.  1960,  Reg.  183 

s.  8   1806 

s.8(5)    1807 

Hospital  Services  Commission  Act, 
R.S.O.  1960,  c.  176 

ss.  8,  11  1965 

s.  12 1971,  1972,  1974 

s.  15  1966 

s.  15(l)(c)(h) 1966,  1973 

s.  15(1)(1)  as  re-enacted  by  Ont.  1968, 

c.  53,  s.  3 1966 

s.20  1973,  1974 

s.  21  1969 


Table  of  Statutes         2269 

5.21(1) 1970,  1973 

s.  21(2) 1971,  1974 

s.  22 1969.  1970,  1973 

s.  23  1969 

O.Reg.  1/67 

s.  52  1970,  1973 

s.52(2)(3)(l)(5)(6)(7)(8)  ....1967,  1968 
Labour  Relations  Act,  R.S.O.  1960, 

c.  202 
s.  5  as  amended  by  Ont.  1966,  c.  72, 

s.  2 1990 

s.  6  1992 

s.  6(1)  1993 

s.  7(1)  1992 

s.  7(2)  1992,  1993 

s.  7(5)  1993 

ss.  9,  10 1992 

ss.  11,  12 1990 

s.  13(3)  1991 

ss.  28(a),  30(2)(3)  1995 

ss.  32,  33 1993 

s.  34  2000 

s.  34(1)(2)(3)  1993 

s.  34(7)  1995 

ss,  43  as  amended  by  Ont.  1966, 

c.  76,  s.  16;  44,  45  as  amended  by 

Ont.  1964,  c.  53,  s.  4 1993 

s.  45a  as  enacted  by  Ont.  1965,  c.  53, 

s.  5 1992 

ss.  47,  47a  as  enacted  by  Ont.  1962-63, 

c.  70,  s.  1  and  amended  by  Ont. 

1966,  c.  76,  s.  18(1)(2)  ..'. 1944 

ss.  51(1),  59(1)  as  amended  by  Ont. 

1964,  c.  76,  s.  22  1991 

s.  65  as  re-enacted  by  Ont.  1966, 

c.  76,  s.  24(1) 1997,  2000,  201 1 

s.  65(2)    1997 

s.  65(4)  as  re-enacted  by  Ont.  1966, 

c.  76,  s.  24(2)  1998 

s.  65(5)  as  re-enacted  by  Ont.  1961-62, 

c.  68,  s.  8(2)  1994 

s.  66   2000 

s.  66(4)(5)  as  re-enacted  by  Ont. 

1966,c.  76,  s.  25 1994 

SS.67,  68,74(1) 1994 

s.  75(2)  as  amended  by  Ont.  1966, 

c.  76,  s.  28(1)  1988 


2270         Table  of  Statutes 


s.  75(2a)  as  enacted  by  Ont.  1966, 

c.  76,  s.  28(2) ^ 1988,  1989 

s.  75(3)  (3a)  as  amended  by  Ont. 
1961-62,  c.  68,  s.  10(1)  and  Ont. 

1966,  c.  76,  s.  28  1988 

s.  75(5)  as  amended  by  Ont.  1966, 

c.  76,  s.  28(4) 1990,  2009 

s.  75(6)  as  amended  by  Ont.  1966, 

c.  76,  s.  28(5)  1988 

s.  75(7)(8)  1988 

s.  75(9)  as  amended  by  Ont.  1961-62, 

c.  68,  s.  10(2) 2000,  2002 

s.  75(9a)  as  enacted  by  Ont.  1961-62, 
c.  68,  s.  10(3)  and  amended  by 

Ont.  1964,  c.  53,  s.  9 2000 

s.  75(10)  (12)  (13) 1990 

s.  77(2)    1996 

s.  77(2)(a)(b)(c)  1995,  1996 

s.  77(2)(d)  as  re-enacted  by  Ont. 

1966,  c.  76,  s.  30(1)  1996 

s.  77(2)(e)  as  amended  by  Ont. 

1961-62,  c.  68,  s.  12(1)  and  further 
amended  by  Ont.  1966,  c.  76, 

s.  30(2)  1996 

s.  77(2)(f)    1996 

s.  77(2)(g)  1995,  1996 

s.  77(2)(h)  as  re-enacted  by  Ont. 
1961-62,  c.  68,  s.  12(2)  and 
amended  by  Ont.  1966,  c.  76, 

s.  30(3)  1999,  2012 

s.77(2)(j)    1992 

s.  79(1)  as  re-enacted  by  Ont.  1961-62, 

c.  68,  s.  13(1) 2006,  2007,  2012 

s.  79(3)  as  enacted  by  Ont.  1961-62, 
c.  68,  s.  13(2)  and  amended  by 

Ont.  1966,  c.  76,  s.  32 1999 

s.  80 2006,  2007,  2012 

s.  81  2007,  2011,  2012 

s.  83  as  amended  by  Ont.  1961-62, 
c.  68,  s.  14  and  Ont.  1964,  c.  53, 
s.  11  ...2007,  2008,  2009,  2011,  2012 

s.  83(l)(2)(2a)(2b)(2c)(3)  2010 

s.  88  2001 

s.  88(f)(g)  2001 

ss.  90,  91  2000 

s.  92  as  enacted  by  Ont.  1961-62, 

c.  68,  s.  16  1992,  2000 


ss.  93-96  2000 

O.Reg.  264/66 

s.  2  1992 

s.  48  1992 

Liquor  Control  Act,  R.S.O.  1960, 

c.  217 
s.  l(l)(j)  as  amended  by  Ont.  1965, 

c.  58,  s.  1(2)  1829 

ss.  2,  3  1829 

s.  8(1)  as  amended  by  Ont.  1965, 

c.  58,  s.  2 1830 

s.  8(l)(g)  1836,  1844 

s.  8(2)  1830,  1843 

s.  9  as  amended  by  Ont.  1965,  c.  58, 

s.  3 1830 

s.  9(2)(o)  1831 

s.  12  1836 

s.  26(2)  as  amended  by  Ont.  1965, 

c.  58,  s.  13(2) 1839,  1844 

s.  28 1832,  1833,  1843 

s.  29  as  amended  by  Ont.  1965,  c.  58, 

s.  15 1831,  1832,  1833,  1843 

s.  47 1831,  1832,  1843 

s.  47(1)  as  re-enacted  by  Ont.  1965, 

c.  58,  s.  27 1831 

ss.  53,  53a  as  enacted  by  Ont.  1965, 

c.  58,  s.  32  1831,  1832,  1843 

s.  55  as  re-enacted  by  Ont.  1965, 

c.  58,  s.  33  1831,  1832,  1843 

s.  55a  as  enacted  by  Ont.  1965,  c.  58, 

s.  33  ...1832,  1833,  1834,  1840,  1843 
s.  78  as  amended  by  Ont.  1965,  c.  58, 

s.  49 1837,  1844 

s.  81  1838 

s.  84  1835 

s.  84(1)  1834,  1835,  1843 

s.  84(3)  as  re-enacted  by  Ont.  1965, 

c.  58,  s.  53  1835 

s.  97(1)  as  re-enacted  by  Ont.  1965, 

c.  58,  s.  60 1835 

s.  100(1)  as  re-enacted  by  Ont.  1965, 

c.  58,  s.  61  1835,  1836 

s.  101  1837,  1838,  1844 

s.  1 10  as  re-enacted  by  Ont.  1965, 

c.  58,  s.  68 1838 

s.  Ill  1837 

s.  122  1839,  1844 


Table  of  Statutes         2271 


s.  140  as  amended  by  Ont.  1965,  c.  58, 

s.  77  ...1832,  1833,  1834,  1840.  1844 

s.  140(4)(5)  1841 

s.  140(6)(14)  1842 

s.  141  1840 

s.  142  as  re-enacted  by  Ont.  1%5, 

c.  58,  s.  78 1828 

O.Reg.  35/66 

s.  75  1837 

Liquor  Licence  Act,  R.S.O.  1960, 

c.  218 
s.  1(f)  as  amended  by  Ont.  1965, 

c.  59,  s.  1(3)  1857 

ss.  2,  4  1847 

s.  11  1860,  1862 

s.  16  as  amended  by  Ont.  1965,  c.  59, 

s.  3 1855 

s.  17(1)  as  amended  by  Ont.  1965. 

c.  59,  s.  4(1)  1855 

s.  17(2)  as  amended  by  Ont.  1965, 

c.  59,  s.  4(2) 1856 

s.  18(1)  as  amended  by  Ont.  1965, 

C.59,  s.  5 1856,  1857,  1862 

s.  18(2)    1857 

s.  20  as  amended  by  Ont.  1961-62, 

c.  73,  s.  1  1852,  1853,  1861 

ss.  21(3),  28  as  amended  by  Ont. 

1965,  s.  59,  s.  11  1850 

s.  29  as  amended  by  Ont.  1965,  c.  59, 

s.  12 1850 

s.  32  1847 

ss.  34,  35  1847,  1848 

s.  41(1)  as  amended  by  Ont.  1965, 

c.  59,  s.  16  1851,  1861 

s.  43a  as  enacted  by  Ont.  1961-62, 

c.  73,  s.  6 1853 

s.44  1852 

ss.  48,  56  1858,  1862 

s.  59 1859,  1860,  1862 

s.  61(4)  as  re-enacted  by  Ont.  1965, 

c.  59,  s.  19(2) 1858 

Milk  Act,  Ont.  1965,  c.  72 

s.  1,  para.  15  1872 

s.  1,  para.  18  1870 

s.l,  para.  21  1866,  1869 

s.  1,  para.  24 1873 

s.  1,  para.  25  1872 


s.  1,  para.  28  1871 

s.  1,  para.  29  1873 

s.  2  1863 

s.  3(1)  1865,  1866.  1878 

s.  3(2)(4)  1866 

s.  3(8)  1892 

s.  4(2)  1887 

s.4(2)(a)  1871,  1872 

s.  4(2)(j)  1874,  1894 

s.  4(3)  1887.  1896 

s.  4(5)(a)(iii)  1876 

s.  5  1872 

s.  5(b) 1889,  1896 

s.  5(d)  1871 

ss.  6,  7  1866 

s.  7(1)  1869,  1875 

s.  7(l)(f)(g)  1877.  1895 

s.  7(2) 1897 

s.  7(4)  1865 

s.  7(5)  1893 

ss.  7(6),  8(1),  para.  1  1892 

s.  8(1),  para.  3 1878.  1895 

s.  8(1),  para.  9 1875.  1894 

s.  8(1).  para.  11  1881,  1882 

s.  8(1),  para.  13 1873,  1893 

s.  8(1),  para.  21 1877 

s.  8(1),  para.  32 1874,  1894 

s.  8(1),  para.  39 1870,  1871 

s.  8(1),  para.  41 1867 

s.  8(6)  1872,  1874 

s.  8(8) 1870 

s.  9 1887,  1888,  1896 

s.  10  1887,  1896 

s.  14  1878 

s.  18,  paras.  1,2 1879,  1880,  1881 

s.  18,  para.  3  ..  .1879,  1880,  1881,  1895 

s.  18,  para.  28  1886 

s.  18,  para.  42  1870,  1871 

s.  18,  para.  59  1889,  1896 

s.  18,  para.  61  1886 

s.  18,  para.  63 1875,  1894 

s.  19(2)  1880 

s.  20  1889,  1896 

ss.21.22  1890,  1897 

s.  24  1891 

s.25(l)  1876,  1894 

s.26(l)(2)  1885 


2272         Table  of  Statutes 

S.27   1869 

s.  29  1873 

R.R.O.  1960,  Reg.  427  as  amended  by 
O.Regs.  286/65  and  307/67 
s.  6  as  amended  by  O.Reg. 

286/65  1869 

s.  7  1869 

Reg.  428 

ss.  9,  10  as  amended  by  O.Regs. 
256/65  and  287/65 1877 

Reg.  432 
s.  46c(c)  as  amended  by  O.Reg. 

86/66,  s.  1(c) 1879,  1895 

ss.  61,62,  63 1886 

8.66(4)  1886 

s.67(l)  1886 

s.  74(1)  1886 

s.  97(3)(4)  as  made  by  O.Reg.  208/61, 
s.  11  and  amended  by  O.Reg. 
289/65,  s.  2(2) 1886,  1896 

Reg.  434 

ss.  51,  52 1886 

s.  59  1886 

s.  67  1886 

O.Reg.  202/65  as  amended  by  O.Reg. 
44/66 
ss.  1,2  1868 

O.Reg.  294/65 

s.6(a)  1867 

s.6(0(i)  1867 

s.6(o)  1867 

s.  6(1)  1882 

s.  7(a)  1868 

O.Reg.  44/66 
ss.  3(1),  6,  8(1)  1869 

O.Reg.  52/68 

s.  3(1)  1868 

s.  4  as  amended  by  O.Reg. 

131/68,  s.  1  1882 

s.4(l)(2)  1868 

O.Reg.  68/68 
s.  3(1) 1868 

O.Reg.  69/68 
s.  3(1)  1868 

O.Reg.  70/68 
s.7(l)  1868 


O.Reg.  71/68 

s.  3(1)  186J 

Mining  Act,  R.S.O.  1960,  c.  241 

s.  64  190] 

s.  91  as  amended  by  Ont.  1965, 

c.  73,  s.  3 190C 

s.  91(2)  190] 

S.92  189^ 

s.  92(1)  as  amended  by  Ont.  1962-63, 

c.  84,  s.  26  and  Ont.  1965, 

c.  73,  s.  4 1900 

s.  96  1904 

s.  125(3)  18 

s.  126  1901 

s.  128  1902 

s.  130  1901 

s.  133  1899 

s.  134  1904 

s.  137  1903 

s.  138(1)(3)  1904 

s.  142  1905,  1911 

s.  143(1)(2)  1905,  1911 

ss.  148,  149,  150  1906,  1911 

s.  150(1)  1906 

ss.  152(1),  155  1907 

s.  156(1)(2)  1908 

s.  157  1902,  1910 

Ontario  Energy  Board  Act,  Ont.  1964, 

c.  74 

s.  2  1915 

s.  2(4)  1923 

ss.  9,  10  1916 

s.  11(2)  1934 

s.  11(3)  1927 

s.  13(1)  1923 

s.  13(2)  as  amended  by  Ont.  1968-69, 

c.  81,s.  2  1924 

s.  13(4)  1924 

s.  13 (4a)  as  enacted  by  Ont.  1967, 

c.  64,  s.  2 1921,  1924,  1946 

s.  14  1922 

s.  15(2) 1925,  1946 

s.  15(3)  as  amended  by  Ont.  1968-69, 

c.  81,  s.  3 1924,  1925,  1946 

s.  17  1925 

s.  19  1917,  1950 

s.  19(1)  1919 


s.  19(3)  1919,  1929.  1917 

s.  19(6)  as  re-enacted  by  Ont.  1967, 

c.  64,  s.  3(2)  1919 

s.  20  1917 

s.  21  as  amended  by  Ont.  1968-69, 

c.  81,s.  5 

..1917.  1918,  ,1929,  1933,  1938,  1943 

1950 

s.  22  1950 

s.  23  ..  1917,1918,1942,1943,1945, 

1948,  1950 
s.  23(2)  as  enacted  by  Ont.  1968-69, 

c.  81,  s.  6  1942,  1945 

s.  24  1918,  1950 

s.  24(a)(b)(c)  1917 

s.25  1950 

s.  25a  as  enacted  by  Ont.  1968-69, 

c.  81,s.  7 1917,  1950 

s.  26  1950 

s.  27(1)  as  re-enacted  by  Ont.  1965, 

c.  83,  s.  2  1928 

s.  29(1) 1926,  1947 

s.  29(3)(4)(5)  1928 

s.  30  1931,  1935 

s.  31  1938,  1947 

s.31(l)  1932 

s.  31(2)  1932 

s.  32  1935,  1936,  1937,  1938,  1940 

s.  32(1) 1933,  1938 

s.  32(4)  1933 

s.  32(6)  1933,  1947 

s.  33  1935,  1942,  1943,  1948 

s.  33(1) 1933,  1939 

s.  34(1)(2)  1927 

s.  35  as  amended  by  Ont.  1965, 

c.  83,  s.  3  1928 

s.35(l)(a)  1928 

s.35(l)(b)  1919 

s.35(l)(f)  1929,1947 

s.35(l)(k)  1917,  1950 

s.35(2)  1950 

s.  36 1921,  1946,  1950 

s.37  1917 

s.38  1950 

S.39  1931 

s.  39(8)  1918 

5.39(10) 1930,  1950 


Table  of  Statutes         2273 

s.  40  1950 

s.  41  as  re-enacted  by  Ont.  1968-69, 

c.  81,  s.  10 1930.  1931 

s.  42  1950 

ss.  43,  44  1930.  1931 

s.  45  1935.  1948 

s.  47(2)  1928 

s.  53(2)  1926.  1946 

s.  56(1)  1940 

O.Reg.  323/64 

s.2(I)(2)  1929 

S.4  1919 

Ontario  Food  Terminal  Act,  R.S.O. 
1960,  c.  272 

ss.  1(b).  2,  4 1952 

SS.  5,  12,  13,  14 1953 

R.R.O.  1960 
Reg.  461 

s.  1  1952 

Ontario  Highway  Transport  Board  Act, 
R.S.O.  1960,  c.  273 
s.  5  as  amended  by  Ont.  1961-62, 

c.  92,  s.  2 1959 

s.  5a  as  enacted  by  Ont.  1961-62, 

c.  92,  s.  3  1959 

s.  9   1960 

s.  11   1963 

ss.  13,    16    1962 

s.  17   1960 

s.  19  1961 

s.  20  1962 

s.21(l)    1961 

s.21(2)(4)(6)    1962 

s.  24  1960 

Ontario  Human  Rights  Code,  Ont. 
1961-62,  c.  93 
s.  2  as  amended  by  Ont.  1965, 

c.  85,  s.  1  .../. 1979 

s.  3  as  re-enacted  by  Ont.  1957, 

c.  66,  s.  1  1979 

ss.  8,  12(1)  1977 

s.  13(1)  1978 

s.  13(2)  1978,  1984,  1985 

s.  13(3)(5)  1979 

s.  13(6) 1979,  1981 

s.  14  as  amended  by  Ont.  1968-69, 
c.  83,  s.  3  1980 


2274         Table  of  Statutes 


s.  15 1980,  1983,  1985 

S.17   1982 

Ontario  Municipal  Board  Act,  R.S.O. 

1960,  c.  274 

s.  5(1)(2)   2016 

s.  5(3)  as  enacted  by  Ont.  1964, 

c.  81,  s.  1  2017 

ss.  7,  12(1),  14,  15(1) 2017 

s.  15(2)  as  re-enacted  by  Ont.  1967, 

c.  68,  s.  1  2017 

ss.  21,  22,  26(1)(2),  32,  33,  34,  35  .  .2018 

s.36 2019,  2020 

s.36(l)(c) 2024,  2025,2042 

s.  37 2020,  2025,  2027,  2031,  2032, 

2043 

s.  38  2021,  2041,  2055 

s.40(l) 2021,  2055 

s.40(2)  2021 

S.41  2022,  2042 

s.  42 2017,  2022,  2041 

ss.  43,  44,  45,  46(1) 2023,  2055 

S.47 2024,  2025,  2042 

s.48,  49 2025,  2042 

ss.50,  51  2026,  2042 

s.52  2027,  2043 

S.53  2027 

s.  53(1)  as  amended  by  Ont.  1961-62, 

c.  96,  s.  1  2028 

ss.  63(1),  64,64(1)  2056 

s.  70  2028,  2056 

ss.  72(1),  74 2029,2056 

s.  82  2029,  2043 

s.  83,  84(1)  2030 

s.  84(2) 2030,  2043 

s.  85  2020,  2030,  2031,  2032,  2043 

s.  90  2032 

s.  92  2034 

s.  93(1) 2035,  2036 

s.  93(2)  2035 

s.  94  as  re-enacted  by  Ont.  1961-62, 

c.  96,  s.  3(1)  and  amended  by  Ont. 

1965,  c.  89,  s.  2  ..  .2031,  2036,  2040, 

2041 

s.  95  2023,  2035,  2039,  2041 

s.  95(1) 2036,  2037 

s.  95(2)  2038,  2044 

s.95(3) 2035,  2037 


s.  95(4)(5)(6)    2037 

s.  95(7) 2041,  2044 

Ontario  Water  Resources  Commission 

Act,  R.S.O.  1960,  c.  281 

ss.  3,   10    2105 

s.  16  2112 

s.  16(1)  as  amended  by  Ont.  1962-63, 

c.  99,  s.  2 2107 

s.  17  as  amended  by  Ont.  1961-62, 

c.  99,  s.  3  2107 

s.  18   2123 

s.  18(1)  as  re-enacted  by  Ont.  1966, 

c.  108,  s.  1  2108 

s.  18(3)    2108 

s.  19a  as  enacted  by  Ont.  1966, 

c.  108,  s.  2 2109 

s.  19(1)  2108,  2109,  2123 

s.26(l)  2110 

s.  27(1)  as  re-enacted  by  Ont.  1961-62, 

c.  99,  s.  5  2113 

s.  27(2)  2113,  2114,  2124 

s.  28(1)  as  re-enacted  by  Ont.  1962-63, 

c.  99,  s.  3  and  amended  by  Ont. 

1964,  c.  86,  s.  4(1)    2115,  2124 

s.  28a  2124 

s.28a(2)  as  enacted  by  Ont.  1960-61, 

c.  71,  s.  3  and  amended  by  Ont. 

1961-62,  c.  99,  s.  6(1)  and  Ont.  1964, 

c.  86,  s.  5(1)    2115 

s.  28a(4)  as  enacted  by  Ont.  1960-61, 

c.  71.  s.  3 2115 

s.  28a(5)  as  enacted  by  Ont.  1964, 

c.  86,  s.  5(3)  and  amended  by  Ont. 

1966,  c.  108,  s.  4 2116,  2124 

s.  28b  as  enacted  by  Ont.  1961-62, 

c.  99,  s.  7  2122,  2124 

s.  28b(l)  as  enacted  by  Ont.  1961-62, 

c.  99,  s.  7  2114,  2124 

s.  28b(2)(3)(4)  as  enacted  by  Ont. 

1961-62,  c.  99,  s.  7 2114 

s.  29  2124 

s.  29(1)(4)  2117 

s.  30  as  amended  by  Ont.  1961-62, 

c.  99,  s.  8  and  Ont.  1964,  c.  86, 

s.  7  2122,  2125 

s.  30(2)(3)  2118 


s.  31  as  amended  by  Ont.  1961-62, 

c.  99,  s.  9;  Ont.  1964,  c.  86,  s.  8  and 

Ont.  1965,  c.  91,  s.  3    ....2118,  2122, 

2125 

s.  32  2125 

s.  32(5)  as  re-enacted  by  Ont.  1966, 

c.  108,  s.  5 2119 

s.  32(5)(c)  as  re-enacted  by  Ont.  1966, 

c.  108,  s.  5 2120 

s.  32(6)  as  re-enacted  by  Ont.  1966, 

c.  108,  s.  5  2120,  2125 

s.  33  2120,  2125 

s.  34  2121,  2123 

S.47  2121 

s.  47(1)  2108 

s.  47(l)(ja)  as  enacted  by  Ont.  1961-62, 

c.  99,  s.  14(1)  2122 

s.  47(1  )(ka)  as  enacted  by  Ont.  1961-62, 

c.  99,  s.  14(2)  2122 

s.  47(1  )(kb)  as  enacted  by  Ont.  1962-63, 

c.  99,  s.  7(1) 2123,  2125 

s.  47b  as  enacted  by  Ont.  1961-62, 

c.  99,  s.  15    .../. 2121,  2125 

olice  Act,  R.S.O.  1960,  c.  298 
s.  4  as  re-enacted  by  Ont.  1961-62, 

c.  105,  s.  2  and  amended  by  Ont. 

1964,  c.  92,  s.  4 2126 

s.  5(1)  as  re-enacted  by  Ont.  1964, 

c.  92,  s.  5(1)  and  amended  by  Ont. 

1967,  c.  76,  s.  3(1) 2126 

s.  7(2)    2129 

s.  8(2)  as  amended  by  Ont.  1965, 

c.  99,  s.  3 2130 

s.  12 2128,  2129,  2131,  2139 

s.  14  2129 

s.  15 2131,2132,  2139 

s.  16(1)  2129 

s.  18(1)  as  enacted  by  Ont.  1965, 

c.  99,  s.  5  and  Ont.  1967,  c.  76, 

s.  5 2127 

s.  18(3)  as  enacted  by  Ont.  1967, 

c.  76,  s.  5  2127 

s.  39a(l)  as  enacted  by  Ont.  1961-62, 

c.  105,  s.  6 2126 

s.  39b(l)(a)  as  enacted  by  Ont.  1962-63, 

c.  106,  s.  4 2127 


Table  of  Statutes         227.5 

s.  39b(l)(e)(f)(g)(h)  as  enacted  by  Ont. 

1962-63,  c.  106,  s.  4  and  amended 

by  Ont.  1966,  c.  1 18,  s.  11(1)  . .  .2127 
s.  10(3)  as  re-enacted  by  Ont.  19()l-62. 

c.  105,  s.  7 2127,  2129,  2139 

s.  ■18a(l)  as  enacted  by  Ont.  1961. 

c.  92,  s.  17 2128 

s.  •18a(3)  as  enacted  by  Ont.  19(i  1, 

c.  92,  s.  17 2128,  2129.  2139 

s.  48a(6)(7)(9)  as  enacted  by  Oni.  1964, 

c.  92,  s.  17  2128,  2129.  2139 

s.  48(1)  as  amended  by  Ont.  19(Jl-62, 

c.  105,5.9(1);  Ont.  1965,  c.  99. 

s.  10(1,  2);  Ont.  1966,  c.  118.  s.  16, 

and  Ont.  1968,  c.  97,  s.  12(1)  .  .2127 
s.  48(2)  as  amended  by  Ont.  1961-62, 

c.  105,  s.  9(3)  2128,  2129,  2139 

s.  61  as  amended  by  Ont.  1965,  c.  99, 

s.  13 2127 

S.62  2131 

s.  62(l)(a)  2132 

O.Reg.  451/69 

s.  2(1)  2134,  2135 

S.3  2134,  2135 

ss.5(l)(2)(ll),  6  2133 

ss.  10,  16 2138 

s.  16(1)  2134 

s.  16(4)  2133 

s.  16(5)(9)-(13)(15)  2134 

s.  17  2138 

ss.l7(l)(5)(6),  18(1)  2135 

s.  19(1)(4)(5)  2137 

s.  20(2)  2133 

ss.  20(3),  24,  24(6)(9)  2138 

s.  25  2139 

ss.  40(11),  51(4),  52(8)  2133 

R.R.O.  1960,  Reg.  486  as  remade  by 

O.Reg.  200/64,  s.  1 
s.  7,  (1)  as  remade  by  O.Reg.  200/64, 

s.  1 2137 

Power  Commission  Act,  R.S.O.  1960, 

c.  300 

s.  1(c)  1811 

s.  7(5)  1822,  1823,  1826 

S.24  1812,  1817 

s.24(l)  1812 

s.24(2)(g)  1816 


2276         Tabic  of  Statutes 

s.  33 1816,  1817,  1825 

s.  33(1)(2)  1816 

ss.  33(7),  34  1817 

s.  42 1819,  1821,  1825,  1826 

s.42(4)  1820 

s.42(5) 1821,  1826 

s.42(6)  1819 

s.  42(8)(10)  1820 

s.  42(12)  1821 

s.  46  1822 

s.  96(1) 1824,  1826 

s.  96  (2) 1826 

s.  97(12)  1822 

Proceedings  Against  the  Crown  Act, 

1962-63,  Ont.  1962-63,  c.  109 

s.2(2)(b)  2211,  2212,  2215 

SS.3,  5(1)  2201 

s.5(2)  2202 

s.  5(3)  2201 

s.  5(4) 2202,  2203 

s.  6a(3)  as  enacted  by  Ont.  1965, 

c.  104,  s.  1  2212,  2215 

s.  10  as  re-enacted  by  Ont.  1965, 

c.  104,  s.  2   2213,  2214 

s.  10(a)    2214 

s.  10(b)    2215,  2216 

Securities  Act,  Ont.  1966,  c.  142 
s.  2  as  amended  by  Ont.  1968, 

c.  123,  s.  2 2069 

s.  2(1)  as  amended  by  Ont.  1968, 

c.  123,  s.  2 2070 

5.2(2)  2069 

8.2(3) 2070,  2094 

s.  3  2069 

5.3(2)  2070 

5.4(6)  2091 

S.5  2070,  2071 

5.5,  para.  1  2094 

5.  5,  para.  2  as  re-enacted  by  Ont.  1968, 

c.  123,  s.  4(2) 2071,  2082,  2095 

s.  5,  paras.  3,  4  2074,  2095 

5.  5,  para.  5  2072,  2095 

5.5,  para.  6  2073,  2095 

5.5,  para.  7  2073 

5.  6  as  amended  by  Ont.  1968,  c.  123, 

s.  5 2077,  2092 

s.7(lK2)(3)  2078 


s.  8  2079,  2091 

s.  8(2)  as  re-enacted  by  Ont.  1968, 

c.  123,  s.  6 208( 

s.  14  207J 

ss.  18,  19 207^ 

s.  19(1)(3)  207f 

s.  19(5) 2076,  207? 

s.  19(6)  207c 

s.  20  2092,  209^ 

s.  21  2081,  2082,  2083,  2088,  208S 

s.  21(1) 2080,  2096 

s.  21(2)  as  re-enacted  by  Ont.  1968, 

c.  123,  s.  8 2080,2081,  2096 

s.21(3)  2082 

s.  21(4) 2082,2095 

s.  21(5)  2082 

s.  21(6) 2082,  2090 

s.21(7)(9)  2082 

s.  23  as  amended  by  Ont.  1968, 

c.  123,  s.  9  . .  .2081,  2082,  2083,  2088 

s.  24  2082,  2096 

5.25  2082 

s.  26 2096 

s.  26(1)  2083,  2084,  2085 

s.27(3)  2085 

s.  28  2075 

s.  29  2075,  2096 

s.  29(2)  as  amended  by  Ont.  1968, 

c.  123,  s.  11(1)  2075 

s.29(5)  2076 

s.  30(b)  2089 

s.  35  2092 

s.  59  2075,  2076,  2085,  2096,  2097 

3.59(1) 2075,  2085 

5.59(3) 2076,  2085 

s.  61(3)  as  enacted  by  Ont.  1967, 

c.  92,  s.  1(2)  2068 

s.  62  2092 

s.  89  2097 

s.  99  2091 

s.  100(a)(i)  2093 

5.107  2068 

5.109  2088,  2092 

s.  Ill  2091 

5.  111(4) 2092,  2097 

5.  115  2068 

5.  116  2068,  2097 


I 


Table  of  Statutes         2277 


s.lI8(b)(i)   2093 

s.  131   2093.  2097 

ss.  135,  136  as  amended  by  Ont.  1968, 

c.  123,  s.  38 2091 

s.  137(1) 2092,  2097 

s.  139(2)    2088,  2097 

s.  Mia  as  enacted  by  Ont.  1968, 

c.  123,  s.  40 2088 

s.  141b  as  enacted  by  Ont.  1968, 

c.  123,  s.  40 2092 

s.  142  2091 

s.  142(1) 2089,  2097 

s.  142(l)(a)  as  amended  by  Ont.  1968, 

c.  123,  s.  41(1)  2092 

s.  142(2)  as  amended  by  Ont.  1968, 

c.  123,  s.  41  2089,  2097 

s.  144  as  amended  by  Ont.  1967, 

c.  92,  s.  3  2068,  2088 

Telephone  Act,  R.S.O.  1960,  c.  394 

ss.  2(1),  6(1)(2)  2098 

s.  7  2098,  2103 

s.  11  2098 

s.  13  2104 

s.  13(1)(2)  2099 

s.  14  2098 

s.  17(1)  2101 

s.  18  2102 

s.  19(1)  2101 

s.  19(3),  22,  26 2102 

S.83  2103 

Workmen's  Compensation  Act, 

R.S.O.  1960,  c.  437 

s.  l(l)(i)  2145 

s.  3  as  amended  by  Ont.  1968, 

c.  143,  s.  2 2144 

s.  3(1)  as  amended  by  Ont.  1968, 

c.  143,  s.  2 2144 

S.7  2145 

s.  13  2143,  2169 

s.  15  2143 

s.  16 2178,  2180,  2193 

S.21  2163 

s.22  2163 

s.22(l)  2181 

s.  23  2168 

s.  23(2)  2181 


s.  27  as  amended  by  Ont.  1964, 

c.  124,  s.  3 2151 

s.27(3)  2152 

s.  27(3)(a)  2151 

ss.  28,  29,  30  2151 

s.  37(l)(a)  2149 

s.  37(l)(c)(d)  as  re-enacted  by  Ont. 

1968,  c.  143,  s.  7(1) 2147,  2149 

s.  37(l)(e)  as  re-enacted  by  Ont.  1968, 

c.  143.  s.  7(1) 2147.  2148,  2149 

s.  37(f)  2149 

s.  37(2)  as  amended  by  Ont.  1964, 

c.  124,  s.  4(2) 2148.  2189 

s.  37(3)  as  re-enacted  by  Ont.  1968, 

c.  143,  s.  7 2149 

s.  37(4)  2147,  2148,  2188 

s.  37(10)  2148,  2188 

s.40  as  re-enacted  by  Ont.  1968, 

c.  143,  s.  8 2149 

s.  41  as  amended  by  Ont.  1962-63, 

c.  145,  s.  5 2149 

s.  42(1)  as  re-enacted  by  Ont.  1968, 

c.  143,  s.  10(1)    2150 

s.42(4)    2150 

s.  43  as  amended  by  Ont.  1968-69, 

c.  140.  s.  1(1)    2150 

s.  43(b)  as  re-enacted  by  Ont.  1968-69, 

c.  140,  s.  1(1)    2150 

s.  44  as  amended  by  Ont.  1962-63, 

c.  145,  s.  6  and  further  amended  by 

Ont.  1968,  c.  143.  s.  11  2150 

ss.  46,  47 2130 

S.49  2145,  2146 

s.  50  as  re-enacted  by  Ont.  1968, 

c.  143,  s.  12  .  .2146,  2179,  2188,  2193 
s.  51(1)  as  re-enacted  by  Ont.  1968, 

c.  143,  s.  13(1)  2150 

s.  51(6)  2150 

s.52  2174 

s.  54  2141 

s.  65  2157,  2158,  2190 

s.  72  2169,  2170 

s.72(l)  2169,2181,  2193 

s.  75 2157,  2158,  2160,  2167,  2190 

s.75(l)  2163 

s.  80  2180 


2278    Table  of  Statutes 


s.  86  as  amended  by  Ont.  1964, 
c.  124,  s.  9  by  adding  sub-section 
(6a)  and  further  amended  by  Ont. 

1968,  c.  143,  s.  18  2143 

8.86(1)  2143,  2156 

s.  86(2)  2143,  2157,  2190 

s.  86(4) 2153,  2189 

5.86(5)  2153 

s.  86(6) 2154,  2189 

s.  86(6a)  as  enacted  by  Ont.  1964, 
c.  124,  s.  9  and  amended  by  Ont. 

1968,  c.  143,  s.  18  2154,  2155 

5.92(1)  2190 

s.  92(3)  2159 

5.92(6) 2159,  2190 


s.  94  2I6( 

s.  94(1) 2159,  216( 

s.  94(2)  219 

s.  95(1)(2)  215: 

s.  97  2162,  2191 

s.  97(a)  as  enacted  by  Ont.  1968-69, 

c.  140,  s.  2  2174,  219^ 

s.  99(2)  214:- 

s.  106  218( 

s.  108  2155,  219C 

s.  115  as  amended  by  Ont.  1968, 

c.  143,  s.  21  2163 

s.  116  2145 

5.  116(13)  2145,  2156 

s.  123  2143 


TABLE  OF  CASES 


Adcock  et  al  v.  Algoma  Steel  Corp.  Ltd.,  et  al  (1968),  70  D.L.R. 

(2d)   216   1991 

Adderly  v.  Bremner,  [1968]  1  O.R.  621  1972 

Atkins  et  al  v.  Ontario  Flue-Cured  Tobacco  Growers'  Marketing 

Board,  [1964]    1   O.R.  56,  affirmed  p.  653,  affirmed  [1965] 

S.C.R.  431   1786 

Attorney  General  for  A^ew  South  Wales  v.  Perpetual  Trustee  Co. 

(LD.)  and  Others,  [1955]  A.C.  457  2208 

Bainbridge  v.  Postmaster  General,  [1906]  1  K.B.  178 2212 

Brampton  Jersey  Enterprises  Limited  v.  The  Milk  Control  Board 

of  Ontario,  [1956]  O.R.  1  (C.A.) 1776,  1879,  2157 

B.C.  Power  Corporation  Ltd.  v.  Attorney-General  of  British 

Columbia  and  British  Columbia  Electric  Co.  Ltd.  (1962), 

34  D.L.R.  (2d)  25 2204 

Broom  v.  Morgan,  [1953]  1  Q.B.  597 2202 

The  Cleveland  Cliffs  Steamship  Co.  v.  The  Qiieen,  [1957] 

S.C.R.  810  .". 2215 

Close  V.  Globe  and  Mail  Ltd.,  [1967]  1  O.R.  235 1991 

Ellen  Street  Estates  v.  Minister  of  Health,  [1934]  1  K.B. 

590 1940,  1972,  2112 

Fisher  v.  Oldham  Corporation,  [1930]  2  K.B.  364 2208 

Freeman  v.  Farm  Products  Marketing  Board  et  al,  [1958] 

O.R.  349  1786 

Hamilton  Street  R.  Co.  v.  Northcott,  [1967]  S.C.P..  3 1991 

Jamieson's  Foods  Ltd.  v.  Ont.  Food  Terminal  Bd.,  [1961] 

S.C.R.  276  1954 

K.M.A.  Caterers  Ltd.  v.  Howie,  [1969]  1  O.R.  131 1991 

MacKay  v.  Bell  and  the  Ontario  Human  Rights  Commission, 

[1969]  2  O.R.  709;  [1970]  2  O.R.  672,  leave  to  appeal  to  the 

Supreme  Court  of  Canada  granted 1981 

MacKenzie-Kennedy  v.  Air  Council,  [1927]  2  K.B.  517 2208 

Marshall  v.  The  Queen,  [1961]  S.C.R.  123 2010 

McDonald  et  al  v.  Farm  Products  Marketing  Board, 

February  24,  1959,  unreported 1786 

McKie  V.  The  K.V.P.  Co.  Ltd.,  [1948]  O.R.  398 2109 

2279 


2280         Table  of  Cases 

Mehr  v.  Law  Society  of  Upper  Canada,  [1955]  S.C.R.  344  .  .  .2005,  2017 
Nanaimo  Community  Hotel  v.  Board  of  Referees,  [1945] 

3  D.L.R.  225 1935,  1938 

Oak  Bay  v.  Victoria,  [1941]  3  D.L.R.  680 1935,  1938 

P.E.I.  Potato  Marketing  Board  v.  H.  B.  Willis  Inc.  and 

A.-G.  Canada,  [1952]  2  S.C.R.  392 1757 

Quebec  Labour  Relations  Board  v.  Canadian  Ingersoll  Rand 

Co.  Ltd.  et  al  (1969),  1  D.L.R.  (3d)  417 2003 

Quebec  Liquor  Commission  v.  Moore,  [1924]  S.C.R.  540 2212 

R.  V.  Allied  Towers  Merchayits  Ltd.,  [1965]  2  O.R.  628  1859 

R.  V.  Carroll  arid  Johnson,  ex  parte  Sutherland,  [1970] 

1  O.R.  66  (High  Ct.) 2135,  2137 

R.  V.  Cookson,  ex  parte  Magee  (1969),  2  D.L.R.  (3d)  67 

(Sask.  Q.B.) 2135 

R.  V.  Fuller  et  al,  Exp.  Earles  and  McKee,  [1967]  1  O.R.  701  afE'd., 

[1968]  2  O.R.  564 1991 

R.  V.  Huntingdon  Confirming  Authority,  [1929]  1  K.B.  698 2005 

R.  V.  Ont.  Labour  Relations  Bd.,  [1964]  1  O.R.  173 1931,  2023 

R.  V.  Ontario  Labour  Relations  Board  ex  parte  Lakehead 

Registered  Nursing  Assistants  etc.,  [1969]  2  O.R.  597  1992 

R.  V.  Ontario  Labour  Relations  Board  ex  parte  Ontario  Food 

Terminal  Board,  [1963]  2  O.R.  91 2204,  2205 

R.  V.  Peconi,  [1970],  3  O.R.  693  1745 

R.  V.  Peterborough  Police  Commissioners,  ex  parte  Lewis, 

[1965]  2  O.R.  577  (C.A.) 2135,  2136 

R.  V.  Quebec  Labour  Relations  Board,  ex  parte  Komo 

Construction  Inc.,  (1969)  1  D.L.R.  (3d)  125 2003 

Raleigh  v.  Goschen  [1898]  1  Ch.  73  2208,  2212 

Re  Grottoli  v.  Lock  &  Son  Ltd.,  [1963]  2  O.R.  254 1991 

Re  Langs  and  Town  of  Preston,  [1968]  1  O.R.  102 2038 

Re  Martin  and  Brant,  [1970]  1  O.R.  1  2038 

Re  Ollmann  (1925),  57  O.L.R.  340 2157 

Reference  re  The  Farm  Products  Marketing  Act,  [1957] 

S.C.R.  198 1757,  1767 

Robbins  v.  Ontario  Flue-Cured  Tobacco  Growers'  Marketing 

Board,  [1964]  1  O.R.  56 1760,  1777,  1786 

St.  Catharines  V.  H.E.P.C.  of  Ontario,  [1930]  1  D.L.R. 

409  (P.C),  1823 

Smith  V.  Moss,  [1940]  1  K.B.  424 2202 

Syndicat  Catholique  des  Employes  de  Magasins  de  Quebec  Inc. 

V.  Cie  Paquet  Ltee,  [1959]  S.C.R.  206  1991 


Table  of  Cases        2281 

Union  Gas  Co.  of  Canada  Ltd.  v.  Sydenham  Gas  and 

Petroleum  Co.  Ltd.,  [1957]  S.C.R.  185  1936 

Weatherall  and  Betzner  v.  Lennox,  [1919]  O.W.N.  685 1891 

WentiL'orth  Canning  Co.  Ltd.  v.  Farm  Products  Marketing  Board, 

[1950]  O.W.N.  100  1786 

Windsor  v.  Hiram  Walker,  Gooderham  and  Worts  Ltd.  et  al, 

[1914]  O.W.N.  691  2039 


164117