The Chair: I call the meeting of the standing committee on regulations and private bills to order. We are changing the order a little bit. We are first going to take Bill Pr65, An Act to revive Multimobile Corporation Limited. Would they please come forward. Would the sponsor please identify himself, along with the witnesses, for Hansard.
Mr Offer: My name is Steven Offer. I am sponsoring this particular bill. With me is Leonard Braithwaite, who is the solicitor for Multimobile Corporation Ltd. I understand this is a matter of revival of a corporation. I will just introduce Mr Braithwaite to carry on.
Mr Braithwaite: This is just a small corporation with 22 employees. They make special power-lift cranes that go on the back of large trucks for construction, etc. Apparently the whole matter of the charter being revoked has been because of inadvertence. The solicitor for the company was a Mr Ash. He tells me that back in 1972, which is some time ago, when the company's charter was revoked, his office was being moved, the partnership was being split up and there was one thing and another. Through inadvertence, the filings that could have been made at that time were not made.
He tells me that two different large, very prosperous firms had the matter between the years 1979 and 1985 and that because of elections and one thing and another, the matter never was resolved. He asked me in 1985 -- I have been working on this since 1985 -- to try to get this charter revived. There is nothing particular here. The company has been operating all this time. There are no tax advantages or anything else. This is just to put the company back in good standing in the corporate world and to preserve the means of employment of its employees. Basically, that is the situation.
Mr Chiarelli: I am Bob Chiarelli, the member for Ottawa West, and I am very pleased to sponsor actually two associated bills. You will see two bills and they will probably be discussed somewhat together in the discussions that might ensue.
Bill Pr31 and Bill Pr63 are two acts respecting the city of Ottawa. Just by way of introduction I will say that these two bills deal with the issue of smoking and the requested legislation is to enable the city of Ottawa to pass bylaws concerning smoking which are stricter than the umbrella legislation which is in place across the province at the present time.
I am going to introduce the assistant city solicitor, Edythe Dronshek, who will answer any questions you might have and perhaps give an explanation of the two bills, and David Saint, who is with management at the city of Ottawa. Ms Dronshek can introduce him formally.
Ms Dronshek: I have with me David Saint, who is with the licensing and enforcement branch of the city of Ottawa, which will be tasked with the administration of these two bylaws if the legislation is granted to us.
Bill Pr31 is an application to allow the city of Ottawa to pass bylaws licensing, regulating and governing owners and operators of stores, shops and places where tobacco products are sold by retail, including vending machines. The bylaw will prohibit the placement of vending machines dispensing tobacco products in areas that are not in full view and under the direct supervision of the licensee or an employee of the licensee at all times.
The proposed legislation provides for right of entry for inspectors and for authority to remove vending machines from unauthorized locations and store them in a suitable place at the expense of the owner or operator of the place they are taken from. The seized vending machines and their contents become the property of the corporation after 60 days unless the lien is removed at that time.
Ottawa is pursuing this application after an extensive public participation process which has identified these needs. Ottawa is desirous of controlling the vending machines dispensing the tobacco products. These machines are considered to be the single most important focus for regulation, given that unattended, unsupervised vending machines permit virtually unrestricted access to tobacco products by minors.
The Minors' Protection Act prohibits persons from supplying tobacco to any person under the age of 18. These controls are designed to work in combination with the Minors' Protection Act. The control of vending machines dispensing tobacco products is an integral component of a comprehensive strategy to make it difficult for minors to obtain access to tobacco products.
Ms Dronshek: They are not there and the machine is not supervised, so in fact they are not responsible. The Municipal Act allows the municipality to license, regulate and govern keepers of stores or shops where tobacco products are sold. A tobacco vending machine is not a store or shop. The city has lost several prosecutions in this area and has been unable to regulate the tobacco vending machines.
Ms Dronshek: We have a twofold inspection process. One is a regular inspection dealing with licensed premises, and the other deal with complaints from the public. It could be addressed in both areas. The public is quite aware of the problem, and in fact has been complaining for quite some time.
Ms Dronshek: The major persons answering these types of things were store and shop owners and their only concern was with the licensing and the fee. In fact, we have licensed stores or shops at this point and are just waiting for the companion legislation to deal with the rest of it.
Ms Dronshek: If a licensing inspector receives a complaint that a person is supplying tobacco to a minor, he will investigate it and report it to the police force, which will then complement the investigation. The police will lay the charge under the Minors' Protection Act. If a conviction is obtained, the licensee will be notified that the city is going to review his licence and he will have a hearing to determine whether or not his licence should be suspended or revoked for the offence.
Ms Dronshek: They were not objecting to the extension to the vending machine process; they were just concerned over the licence fee. In fact, the city has enacted a bylaw under the existing Municipal Act. I believe the licence fee is $70. We have had no bad reactions to this process.
Ms Dronshek: Other jurisdictions are attempting to do it. Some of them appear to be regulating the machine itself, but they do not seem to be appearing in the courts to actually enforce it. Our problem was we attempted to enforce it and were unable to.
Mr Chiarelli: We have just discussed the one bill at this point, Bill Pr31. Bill Pr63 really has not been discussed. We can discuss the other one and then vote on each of them individually later, or we can vote on this one and then deal with the other one separately.
Ms Dronshek: This application is to allow the corporation of the city of Ottawa to pass bylaws prohibiting smoking in the workplace. The bylaw would require every employer in the city of Ottawa to adopt and implement a non-smoking policy that prohibits smoking in the employer's workplace. It would provide that a smoke-free environment will be the norm with the exception that an employer may voluntarily designate a smoking area if the area is equipped with a separate ventilation system vented to the outdoors and is used for no purpose other than smoking.
City council has been supportive of regulations controlling smoking in public places and is pursuing this application after an extensive public participation process since 1987. It has been many years in the works.
The city recognized the fact that the province has general legislation, the Smoking in the Workplace Act, and held its application in abeyance for a time while the provincial act was assessed as to its impact. The provincial act does provide a minimum standard in restricting smoking in the workplace, but it does not require smoking and non-smoking areas to be separately ventilated and it provides an exception for areas used primarily by the public.
The act does provide that where a municipal bylaw is more restrictive than a comparable provision in the act, the bylaw shall apply and the provision that is the most restrictive of smoking shall prevail. Thus the act specifically provides that it does not prevent a municipality from enacting bylaws respecting smoking in the workplace where it has the appropriate enabling legislation. Ottawa is requesting the authority to pass bylaws which are more restrictive of smoking.
The application is based on two principles, that every employer shall ensure his or her workplace is free from tobacco smoke by prohibiting smoking in the workplace and that employers may designate locations in the enclosed workplace as smoking areas only where the location has a separate ventilation system vented to the outdoors and has no other function.
Mr J. Wilson: When we are in a recession and our retail sector is hurting so badly, do you not feel this is more regulation by bureaucracy for retailers? Did you hold public hearings on both these acts?
Ms Dronshek: We went through many hearings on these. On smoking in the workplace we had one of the most extensive public participation processes the city has undertaken. It started it in 1987 and ended up implementing its own in-house smoking-in-the-workplace policy. It went through public participation whereby the public wanted us to adopt the city of Toronto regulations which were in place in 1986 and we proceeded then to draft the legislation and the bylaw to implement such.
We went back to council in August 1988 and council approved that the application proceed. We were just about to file the necessary documentation when the province introduced the general legislation. We went back to council and asked it what it wanted to do with it and council decided to hold it in abeyance to give the general legislation an opportunity to be formulated.
At that point, while we were assessing the general legislation, we had further public concern that we had not proceeded with our application and that the provincial legislation was merely a minimum standard and did not address the concerns of both employers and employees in the workplace and the city agreed to pursue this application.
Mr Saint: You talked about the repercussions for business. Someone asked a question about how stores were affected. I just wanted to add the point that we can currently license, and do license, stores and shops that sell tobacco products. They actually were interested in our further regulating vending machines because they said: "It's unfair that we are regulated to ensure that kids can't buy cigarettes here and there are vending machines sitting in open areas in malls and such. They should be regulated."
Mr Sutherland: You are using the Toronto and Hamilton acts just as a basis. I notice again that you have public inspection here. I thought most of the smoking control acts had a public complaint process.
Mr Saint: When all of the non-smoking groups lobbied us, that is exactly what they wanted to remove. It was unfair that someone should have to complain about smoking to be assured of a smoke-free workplace. They would be subject to peer pressure and other kinds of recrimination and were actually loath to complain. This was something that was also identified to me by the Toronto department of public health. I understand that in the future the city of Toronto is going to be seeking stronger enabling legislation to do exactly what we are looking to do here, which is to prohibit smoking outright, make it so people do not have to complain about smoking in the workplace to entitle them to a smoke-free workplace.
Mr Ferguson: I just want to note that the Minister of Labour is also in support of the bill. I want to quote from his letter: "I'm pleased to see this action being taken by the city. As you know, a number of municipalities already have bylaws in place regarding smoking in the workplace and I hope that Ottawa's proposal will encourage other municipalities across the province to develop similar laws."
Mr Miller: Shot at Queen's Park. It was the first film John Candy appeared in. Due to inadvertence, the charter was cancelled. There are now substantial funds in the United States earned from exploitation of that film. We are unable to disburse the funds because the general partner conduit, Magnum International Productions Inc, has had its charter cancelled. That is, in substance, the reason for the application.
Mr Miller: The film was not a success when it was originally produced and notices went to addresses where the corporation no longer resided. It was a matter of inadvertence. It happened and no one realized it happened. It had no taxable income.
Mr Silipo: I will introduce Pat Foran, from the legal department of the city of Toronto, and Gail Johnson, the manager of the zoning legislation division in the department of planning and development.
I guess if we do them in sequence, Bill Pr33 is essentially a bill that would allow the city council to pass bylaws regulating and prohibiting the discharge of water into any ravine. That expands the powers that are presently allowed in terms of regulating and prohibiting disposal from sources located outside the ravines. If members of the committee have any questions, they certainly can be dealt with.
Mr Ruprecht: Let me say at the outset that whenever I see Pat Foran here before this committee in her capacity as legal counsel for the city, normally these bills are well researched and well thought out and I normally have no hesitation in supporting them.
I only have one question, an informative question, I guess, nothing of great substance. In terms of the ravine bylaw which you are before us to get passed, have you had various negative experiences in terms of people draining their pools into the ravine? Where has this been taking place? Is this all over the city? What have you experienced there?
Ms Foran: Yes, we have had very serious problems. We have some pictures to show you. We could show you where the offenders are located primarily, if you would like Ms Johnson to show you. She is the one who can answer better about the locations.
Ms Johnson: This bill is really about being good neighbours and about protecting the environment for future generations and preserving those remnant natural areas that we have in the city. In the city, from any major intersection -- it would be a surprise to many people from outside of the city -- you can leave the high-rises, leave the bustle behind and descend into the city's ravine system.
Ms Johnson: The ravine area we have left in the city is not a major portion of our actual land area, as you can see. The areas in green and yellow on this map of the city are the residual ravines that we have left in the city of Toronto. They are a very valuable resource. They are highly treasured by our residents because we are living in this dense city and this is one of our few opportunities to get away from the traffic, from the high-rises, from what many people throughout the city, and I tend to agree, consider a bit of madness, into a leafy, green world where you can walk in the snow, collect leaves with your children or have a picnic.
We have 29 ravines in the city of Toronto. The ones in green are designated under the city of Toronto's official plan. The ones in yellow, which are the tributaries and the main portions of the Humber and the Don rivers, are under the jurisdiction of the Metropolitan Toronto and Region Conservation Authority. City staff and the conservation authority staff work very closely together to protect these ravines.
We started our ravine management program in 1980. We have designated our ravines in the official plan. We have bylaws under the policies in our official plan. We have undertaken a very broad-ranging public education and public awareness program with property owners throughout the ravines.
The ravines work out to be about 50% in public ownership and 50% in private ownership. The bottoms of our ravines may have wonderful walkway systems through them, but the actual slopes are the backyards of houses. Those pictures -- and I apologize that our budget does not allow for 12 by 12s -- show that they are magical places and, as I say, they are very highly valued.
We have been very successful in the city in controlling and reducing the vegetation removal in the actual ravines and on the private property portions. We have had the wide support of residents throughout the city in our protection programs. Where we have problems today, and this is the reason the bill is before your committee, is with individuals who are not acting as good neighbours, who dump construction materials, refuse, garbage of all sorts from the adjacent tableland into the designated ravine. We also have trouble with individuals who drain their swimming pools, and therefore that chlorinated water is not only causing erosion but is slowly killing the vegetation in the ravines. Instead of draining their swimming pools right out to the street where there is a storm drain, they actually put the long hose over the top of the bank and drain it down into the ravine.
We have also had problems -- and this can be from both houses and larger buildings adjacent to the ravines -- with individuals who, instead of taking their roof drains and building a container for that drainage with granular material in it so it will sink into the soil, basically run the eavestroughs over the top of a bank, and then what you have is erosion down the ravine slope. We have documented many instances of this. It has been of wide concern to members of our city council. We receive complaints from adjacent property owners pretty well every time one of these instances occurs because, as I say, the ravines are highly valued.
These pictures show instances in ravines from east to west in the city -- each picture is a different ravine -- where we have had fill dumped over the bank, and garbage, construction material, debris. We need a clear legislative framework for ensuring that our enforcement people can have these situations cleaned up and the bank restored to a natural state.
The very last picture is an incident that just occurred several weeks ago of a swimming pool where the property owner had drained his swimming pool over the top of the bank, creating erosion channels.
Mr Ruprecht: I have just one other minor question. When you are talking about designated ravines on the map, behind the pictures, will this bylaw then only cover those ravines which you have designated or will this bylaw cover other ravines as well, and if there are other ravines, what would they be?
Mr J. Wilson: The city itself, I guess, does not have the authority now, and that is why you want the bill, to prohibit these actions and follow up with charges, but is it not under the Conservation Authorities Act? How does that work?
Ms Johnson: Most of these ravines are not under the jurisdiction of the conservation authority; only those shown in yellow are. At the same time, no, they would not have that power. We will be working hand in hand with the conservation authority in respect of the ravines that are designated as well. The only possible conflict with the power of the conservation authority is covered in the proposed amendment which arises from the Ministry of Natural Resources, and that deals with the dumping of fill, so we would still be enforcing the bylaw with respect to the dumping of water and debris in the areas covered by the conservation authority.
Ms Johnson: At the present time we have legislation which governs destruction of trees, dumping of debris within the ravine itself, or if we could prove that something happened on the adjacent tableland that caused the destruction of vegetation or plants within the ravine, we would prosecute. What we are trying to do here is to take preventive measures. It is too late once we discover there is damage, because it cannot be repaired. What we are trying to do here is to get the power to regulate it in advance, or to prohibit it in advance, so we would be moving fairly quickly to take preventive measures, rather than trying to charge people after the damage has been done and the ravine has been destroyed for future generations.
Mr O'Connor: I want to thank you for coming so well prepared. Your visual display here, though the pictures were small, was quite effective. When I got up and took a look at them, you could see the potential for damage that could happen. By just looking at the bill itself, though, it sounds very common sense. When you take a look at the pictures, you can really see the effects that would happen without this legislation.
"(2) Despite clause (1)(c), if the regulation is made under clause 28(1)(f) of the Conservation Authorities Act respecting the placing or dumping of excavated material in any area of the city of Toronto, a bylaw passed under clause (1)(c) ceases to have effect in that area upon the coming into force of the regulation."
Mr Silipo: This bill deals with one of the areas that was mentioned in the other presentation, with controlling or prohibiting refuse from construction sites to be placed on either public or private properties. Ms. Foran may want to add something to that.
Ms Foran: Bill Pr34 would permit the city to pass bylaws which would prohibit persons from causing or permitting refuse or debris originating from a construction site to be placed, deposited or blown on to someone else's property without consent. In the bill "construction site" is defined to mean any land upon which new or used materials or equipment is located in relation to the renovation, construction or demolition of any building or structure.
There was some concern raised by the Ontario General Contractors Association and the Toronto Construction Association in respect of the use of the word "blown" because of the inability to control blowing of dust. In order to satisfy those concerns, council has asked me to ask your committee to amend Bill Pr34 so that it is expressly set out that refuse and debris do not include dust.
What Bill Pr34 is intended to deal with is where either a person deliberately places construction material or debris on his neighbour's property or such debris is improperly stored and therefore blows over on to another property. We have numerous complaints on this each day. There is provision in the Municipal Act which would prohibit the throwing, placing or depositing of refuse, but there you have to catch the person doing it. In this case, what we are looking for is to go beyond that and say that if in fact you cause it or you permit it, we could charge you under the act arising out of Bill Pr34.
As I have said, council is acting to resolve a very real concern of a large number of people in Toronto, and I have with me Mr Pesendorfer, of the department of buildings and inspections, to answer any specific questions you may have.
Mr Sola: You just stated that under the present circumstances you have to prove that somebody caused the damage. How would you prove that they permitted that something was dumped or the damage was caused? Somebody could come at midnight and dump a load there, and I do not think it would be fair to charge an owner for the simple fact that he or she is an owner of a property.
Ms Foran: It would go to proof in the courts. If somebody is carrying on construction or demolition or renovation on one piece of property and there is construction material blown over on to the other person's property, then you would go and see if it was the same kind of material or whether you have sufficient evidence to lay the charge. On just the fact that somebody comes in and does it at midnight, you would still have to go to court and show that the owner of where the construction material arose did actually permit it or cause it. If you cannot prove your case, then you would not be very successful in the courts, and of course we would not be laying the charges. We would look for the evidence before we would lay the charge.
Ms Foran: They have recently, I understand, raised another concern. They say maybe we should further define "dust" to not include coffee cups. There is a limit how far we can go to say what dust is. I think that would be a matter for the courts to determine. If we lay a charge, and it is something dealing with dust, the courts would not enforce the bylaw, so I think that is up to the courts. That was about as far as I could go to satisfy their concern. I thought their concerns had all been satisfied by this amendment, and indeed they have. They have been to the committee at council and were satisfied, but in the last day or so something has surfaced dealing with coffee cups. There is no way I can deal with that. That again is a question of the evidence that would have to be put forward.
Mr Silipo: Essentially, this bill would provide council with an ability under the Planning Act to reinstate subdivision control over lands if the council would so decide. That essentially would mean that people who wanted to sell or sever those lands would have to apply to council and go through the process. I think it clears up some potential problems that could develop in the future. Again, Ms Foran may want to add to that.
Ms Foran: Yes. Legislation in the form of Bill Pr50 is required to plug what the city conceives to be a gap in the Planning Act. Basically, Bill Pr50 applies to lands that are covered by more than one successive plan of subdivision registered over the years. For example, an illustration would be where lands were originally included in a plan of subdivision, say in 1850, showing one-acre lots, and then maybe in 1900 a new plan of subdivision was put on part of the old plan of subdivision which would show smaller lots, maybe half-acre lots. Then in 1970, a third plan of subdivision was put on, maybe showing 50-foot frontages and one sixteenth of an acre or something like that.
It is a very technical bill. Basically, subsection 49(3) of the Planning Act, which I think you are all familiar with, deals with subdivision control, where you cannot convey land if you own abutting land unless it is in accordance with the plan of subdivision or you receive approval for the severance. Under subsection 49(4) of the Planning Act, city council may designate any plan of subdivision or part thereof which has been registered for more than eight years, and when council designates a plan of subdivision under that subsection, it is deemed not to be a plan of subdivision for purposes of section 49.
The effect of designating a plan of subdivision under subsection 49(4) is to reinstate subdivision control. The problem arises where you have these successive plans of subdivision put on over a number of years. Subsection 49(4) requires that the bylaw be registered, but it does not say against what plan of subdivision.
The city would like to have been able to register the bylaw against all the lands in every successive plan of subdivision. However, officials at the land registry offices refused to so register the bylaw, simply because it is their position that they will only register it against the current plan of subdivision.
We are concerned that a court may say the ministry must register a deed against an older plan of subdivision if a person so requires, and therefore that there is a gap in the Planning Act. It is a small gap, but it is very real for us in the city of Toronto where we have a lot of successive plans of subdivision in the older settled areas.
Logically it would have been nice to amend the Planning Act. That just did not work out. We tried, and there was no real consensus among the ministry staff as to how it would happen. We feel that Bill Pr50 would plug that gap. We have worked with the ministry staff to make sure they are satisfied it would. As I said, I have Mr Ostapiak here to answer any specific technical questions because it is a very technical bill. But then, section 49 of the Planning Act is very technical, too, so we have done the best we can to make it simple, but it is not an easy concept.
We have a minor amendment. I would like to thank the clerk for shutting the door as well. I understand that is Mr Harris singing down the hall. The latest poll came out indicating the Tories have reached double digits finally.
The Chair: Mr O'Connor moves that section 2 of the bill be amended by adding at the end "if the bylaw is registered against what was, at the time of the registration, the current geographic designation of, or the current land titles parcel register for, the lands which are covered by such plans."
Mr Silipo: Seriously, I can tell you, Mr Sola and members of the committee, as someone who in a former life did a little bit of work in the whole area of real estate law, that any effort that resolves some of the ambiguities that exist there, or possible ambiguities between the registry office and parties having to go before courts to argue, is certainly welcome.
Mr Knott: Yes, I do, Mr Chairman. The Maple City Centre for Older Adults was incorporated on 25 January 1971 with the purpose of operating a social and recreational centre for adults. The land on which a new facility for the seniors was built is located on lands leased from the corporation of the city of Chatham. Because of the long-term lease, under the Assessment Act these lands now become taxable and what the city of Chatham is seeking to do is to have authority to exempt the real property leased by the Maple City Centre for Older Adults from taxation for municipal and school purposes.
Mr Hope: Just for the record, I would like to make mention of the public sector workers of the city of Chatham and also Mr Knott for the work that was put behind this piece of legislation. They did an extremely fine job, and also a fine job of informing me of what is going on. I think they deserve credit -- I just wanted to have that noted for the minutes and for Hansard -- and also the older adult centre, which I think is our future of making activity available for seniors in our community.
Mr Fenson: The committee has received correspondence from the city of Toronto and the municipality of Metropolitan Toronto saying that those municipalities have adopted motions that the regulation creating the text of new oaths for members of police services boards and for police and auxiliary police be challenged in the courts, on the grounds that they do not refer to the Queen but rather to Canada and the upholding of its Constitution, and also that the regulation be referred to this committee in the hope that it will be found to be outside the power of the province to make, and in violation of two of the guidelines which govern this committee's review of regulations.
As I have explained to the committee, in the ordinary course of events, I would be reviewing the 1991 regulations around the time that they are all available, namely, at the end of the year, but there is nothing to stop the committee from having this regulation reviewed at any time. I am here to get the committee's instructions as to whether it wants me to proceed according to the ordinary schedule or to look exceptionally at this regulation now and give the committee my findings, so that the committee can decide whether or not it wants to report to the House on this particular regulation.
Mr Ruprecht: Is it your view then, if I heard you correctly, through your research, that it is in the purview of this committee to look at the regulation and to come up with a recommendation to the Legislature? Is this correct?
Mr Fenson: This is definitely correct, and it is on that basis that I review a year's worth of regulations and bring to this committee draft reports for it to consider. Yes, it is definitely in the committee's purview.
Mr Ruprecht: If that is the case, then this committee could make a recommendation to the Legislature whether to change or appeal or alter to any degree the present regulation which takes the Queen out of the oath in the Police Services Act. Is that correct?
Mr Fenson: Yes, the Regulations Act, subsection 12(5), says that the standing committee "shall, from time to time, report to the assembly its observations, opinions and recommendations." It is under that provision that the committee reports its views on regulations which it thinks are in violation of the guidelines in the standing orders. Certainly, in the ordinary course of events, the committee would be reviewing that regulation, and depending on what it found, might be giving its observations, opinions and recommendations to the House.
Mr Fenson: In the normal course of events this regulation would be reviewed to see whether or not it is in accord with nine guidelines that appear in standing order 104(k). That is the section which sets up this committee and gives it its duties to deal with private bills and regulations. The standing order says that in the review of the regulations, "regard shall be had to the following guidelines," and it lists nine guidelines.
For this committee I look at all regulations made during the course of the year and check them against these nine guidelines. If there is a question I make an inquiry generally of the legal department of the ministry responsible. That is also required in the guidelines, in the statute. Then if there is an outstanding problem, I report it or I include comments in the draft report which the committee then considers and tables.
Mr Ferguson: I just want to note that the reason this matter is before this committee is not because of a private member raising the issue and saying we should examine this regulation. This matter is before this committee because Metropolitan Toronto has asked the committee to examine the issue, not in relation to whether or not it meets the guidelines as set out in the standing order, but to determine the constitutionality of whether or not this is within the Canadian Charter of Rights and Freedoms, and whether it is beyond the authority of Ontario and whether or not this entire matter is in fact constitutional. I want to submit to you, Mr Chair, that it is not for this committee to decide that question.
Mr O'Connor: I think the motion is a little bit out of line at this point. Of course, it is completely up to the member to bring the motion forward, but we have not even decided whether this committee should be actually taking a look at it. We are not Supreme Court judges, nor are a lot of us even lawyers, so on looking at the constitutionality of this issue, I do not believe it is for us to decide. I believe it is up to the courts to go that avenue. It is up to the city of Toronto if it so wishes to take a look at it through the courts.
I think Mr Fenson's duties, in assisting this committee, are to look at regulations as they come forward as mandated through the Legislative Assembly. We should be watching that we are not necessarily just reacting to city councils that may not agree with the regulations, but making sure that the regulations are in fact properly looked at in the normal course of events. As to whether or not this committee can make a value judgement on the constitutionality of the oath, I do not believe this committee should be speaking to that, so I will not support the motion.
Mr Sola: I think all we are asking, or that the city of Toronto was asking, is that the time frame in which Mr Fenson would look at this regulation should be moved up. I guess they would like to avoid the legal expense of going to court. If this committee decided in accordance with Mr Fenson's point of view, after having studied this question -- whether it is unconstitutional or no -- that it is constitutional, then they would go to court to see whether it agreed or not. I think all they are trying to do is avoid a court case, if we come down on the issue on one side or the other. If we wash our hands, eventually they will come up with an opinion on this thing, but they will have spent so many thousands of dollars going to court.
Mr Sutherland: I have not received a phone call from the Prime Minister indicating that I have been put on the Supreme Court of Canada or on to any court, so I do not feel comfortable with this committee looking at the issue of constitutionality. You can get opinions on whether it is or it is not -- and obviously Metro council has its opinion -- but ultimately it is an issue, as most constitutional issues are, that needs to be decided by the courts. Mr Ruprecht's motion here to repeal is, I think, very premature. This committee does not have a mandate to decide whether something is constitutional or unconstitutional or give opinions to that effect. If Metro council wants that opinion, I think it knows the appropriate procedure for getting that opinion.
Mr Ruprecht: I want to remind members of the committee that my first question to counsel was whether it is within the purview of the committee to be able to make recommendations to the Legislature and to deal with this matter since it is a regulatory item. The answer we received was very clear and that was a definite yes, it is within our jurisdiction to make recommendations to the Legislature. Consequently, having received that answer, I then formulated my motion.
Whether you want to say that we do not have the right or that we want to look into the constitutional situation or that you are not a judge yet, depends, I would think, on how you will vote on this motion. Mr Mulroney might consider this matter or even other persons might consider the matter. I just want to be very clear and I think you understand that this is a clear situation, that we have the right as a committee to make that decision, so it is no use to camouflage it and throw some other item into the arena when we are authorized to do that very specifically and clearly.
Mr Abel: I think Mr Ruprecht's motion goes far beyond our scope of jurisdiction. I would certainly feel very uncomfortable having to decide or even recommend on the constitutionality of the oath of allegiance, and I certainly would not support that motion.
Mr Sola: I do not think we are changing the jurisdiction of this committee. The motion may change the direction slightly, but this request from Metropolitan Toronto just asks for a change in the time frame in which we would normally give our opinion. That is the way I understand it. It is like closing the barn door after the horse has left if they go to court and we come up with a decision that would support their point of view after they have gone to court, so I think all we are trying to do is move up the time frame, and rather than get it at Christmas, to get it now.
Mr Ferguson: I think there has been some misrepresentation here of exactly what Metro has asked for. I just want to read into the record, so that everybody is clear, what it has asked for. Their letter dated 3 June 1991 to the office of the Clerk, committees branch, Mr Decker, signed by H. W. O. Doyle, metropolitan solicitor, in part states:
"In particular, the metropolitan council respectfully requests the standing committee to examine whether or not the regulation is unconstitutional as being inconsistent with the Canadian Charter of Rights and Freedoms as well as being beyond the authority of the province of Ontario to promulgate and to recommend that such regulation, if it is found to be unconstitutional, be repealed."
I think the members of this committee have been very clear and consistent in saying that it is not our duty, our role or our mandate to determine what is and what is not constitutional in this province. That is up to the courts to decide.
Mr Ruprecht: I respect my colleague Mr Ferguson in most cases, but I want to respond directly to his comments and quote what the city of Toronto letter of 4 June requests. On page 2, the fifth paragraph, it is very clear what they request:
"Whereas section 12 of the Regulations Act requires every regulation to be referred to the provincial standing committee on regulations and that the said committee examine the scope and method of the exercise of delegated legislative power...."
That is very true and that is where Mr Ferguson is right, but then, my friends, let's look at the resolution. It says -- if I can get the undivided attention of the members, because we will have to vote on this item -- "Be it further resolved that the Metropolitan Council request the provincial standing committee on regulations to review the purported exercise of delegated legislative power in respect of the regulation in question and" -- this is where my motion comes in -- "recommend to the Legislative Assembly of Ontario that such regulation be repealed."