1. The Rule of Law is a…

1. The Rule of Law is a Constitutional Principle
The principle of constitutionalism and the rule of law “lie at the root of our system of
government” The rule of law as a principle encapsulates at least three concepts. First, that the law is supreme
over officials of the government as well as private individuals, and thereby preclusive of the
influence of arbitrary power. Second, the rule of law requires the creation and maintenance of an
actual order of positive laws which preserves and embodies the more general principle of
normative order. Third, the exercise of all public power must find its ultimate source in a legal
rule.
In Roncarelli v Duplessis, 1959 CanLII 50 (SCC), the Supreme Court of Canada held that in public
regulation, there is no such thing as absolute or untrammeled “discretion”. No legislation can be
taken to contemplate unlimited arbitrary power exercisable for any purpose, however capricious
or irrelevant, regardless of the nature or purpose of the statute. Discretion necessarily implies good
faith in discharging a public duty.
Contrary to the rule of law, Schedule 9 seeks to provide untrammeled discretion to the provincial
Lieutenant Governor in Council and the Minister to designate special economic zones, trusted
proponents, a class of persons as trusted proponents, designated projects or a class of projects as
designated projects, without any legislated criteria or boundaries. Instead, sections 2(2), 3(3) and
4(3) provide untrammeled discretion to the Lieutenant Governor in Council to establish criteria to
define these terms by regulation.
Likewise, sections 5 and 6 seek to provide untrammeled discretion to exempt or modify any
legislative, regulatory, other instrument, municipal by-law or municipal instrument from applying
to a trusted proponent or designated project within a special economic zone.
Without any detail about what legislative, regulatory or other requirements will apply to projects
or proponents moving forward, Schedule 9 raises serious concerns about whether the health and
safety of people and the environment will be protected.
I recommend withdrawing this schedule in its entirety.
2. Indigenous Rights Under Section 35 of the Constitution Act, 1982 and UNDRIP
Schedule 9 conspicuously does not mention Indigenous legal rights, including: (1) the inherent
right to self-determination; (2) section 35 constitutional protections for “Aboriginal and treaty
rights”; or (3) the standards and principles of UNDRIP.
Likewise, a key principle entrenched in several UNDRIP provisions is the requirement for governments to obtain the free, prior, and
informed consent of Indigenous communities before approving or undertaking activities that may
adversely affect Indigenous lands or resources.
Schedule 9 does not include any non-derogation clause, which itself is insufficient to safeguard
Indigenous rights, lands and interests.
In the context of legislation which seeks to provide untrammelled discretion to the provincial
government to exempt any special economic zone from any law, regulation, instrument, municipal
by-law or municipal instrument, and the strong potential for severe adverse impacts on Indigenous
communities, I recommend that Schedule 9 be withdrawn. However, if Ontario Schedule 9
is proceeded with it should be amended to explicitly entrench UNDRIP, including the principle of
free, prior and informed consent. Also, I notes that section 35 of the Constitution Act, 1982
will continue to apply and must be respected by the government in any decisions made under this
Act.
3. Concerning Limits to Municipal Legal Authority
Subsection 5(2) and subsection 6(2) of Schedule 9 allow for the Lieutenant Governor in Council,
by regulation, to exempt or modify requirements for trusted proponents or designated projects
within a special economic zone from compliance with any municipal by-law or municipal
instrument.
Broad statutory authority enables a municipality to govern its affairs as it considers appropriate
and to enhance its ability to respond to municipal issues. Schedule 9 seeks to provide the province
with untrammeled discretion to exempt or modify municipal by-laws and municipal instruments
from any trusted proponents or designated projects within special economic zones, raising
additional concerns about whether the health and safety of persons and the environment will be
protected.
4. Limits on Civil Liability Are Too Broad
Section 7 of Schedule 9 seeks to provide broad limits on civil liability, including with respect to
“bad faith” or a breach of trust or fiduciary obligation.
In 1989, the Ontario Law Reform Commission conducted a comprehensive review of the
Proceedings Against the Crown Act, and reported to the Attorney General of Ontario that such
legislation should create more (not less) Crown liability for the following reasons:
In our view, the present law governing liability of the Crown, insofar as it still provides
privileges and immunities not enjoyed by ordinary persons, is opposed to popular and
widely-held conceptions of government. We share a deeply-held notion that the
government and its officials ought to be subject to the same legal rules as private
individuals and, in particular, should be accountable to injured citizens for unauthorized
action. This is a notion that lies at the heart of the "rule of Law" and of "constitutionalism"
as those concepts have been conventionally understood in the common law world. An
important, if not central, aspect of this concept is the fact that the application of ordinary
principles of law to government is placed in the hands of the ordinary courts. The courts
are perceived to be independent of government and therefore capable of being relied upon
to award an appropriate remedy to a person who has been injured by illegal government
action.
Similarly, the Ontario Law Reform Commission report concluded:
[A]t this point we think it is important to indicate that, as a matter of general principle, we
believe that the Crown should be subject to the same law as any other person, and that any
exception to this general rule must be clearly justified. Accordingly, our general and central
recommendation is that the privileges of the Crown in respect of civil liabilities and civil
proceedings should be abolished, and the Crown and its servants and agents should be
subject to all the civil liabilities and rules of procedure that are applicable to other persons
who are of full age and capacity…. However, we wish to emphasize that this
recommendation is intended to apply with respect to all causes of action, including tort,
contract, restitution and breach of trust.
The proposed Schedule 9 limitations on Crown liability are heading in the wrong legal and policy
direction, by adding special immunities for the Crown to use untrammeled discretion, including in
instances of bad faith.
Conclusion and Recommendation
I am strongly opposed to the proposed legislation, which does not respect the rule of law and
which seeks to provide untrammeled discretion to government to exempt or modify the application
of any law, regulation, instrument, municipal by-law or municipal instrument in special economic
zones.
I am also strongly opposed to attempts to prohibit virtually all types of civil claims against the
Crown for acts or omissions that directly harm Ontarians, including instances of bad faith. This
attempt to limit liability is unnecessary and unduly impairs access to justice in Ontario.
Accordingly, I recommend that:
RECOMMENDATION : Schedule 9 should be withdrawn.