Ontario’s highest court has clarified that a cabinet can’t decide that a law passed by the legislature will never come into force..The Ontario Court of Appeal made this clarification Aug. 17 in Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board..In 2020, the legislature passed a law to allow Canada Christian College (CCC) to grant bachelor of arts and sciences degrees starting on a day to be named by the lieutenant governor, which in practice means the minister..The passage of the law prompted an outcry due to controversial comments made by the college’s president Charles McVety about Islam and gay people, and due to McVety’s ties to Premier Doug Ford. .In 2021, the Post-Secondary Education Quality Assessment Board told the Minister of Training, Colleges and Universities that Canada Christian College was not ready for university status..The minister accepted that finding and decided they would not proclaim the law that would have granted them that status, thus saving the government from potential further embarrassment. .CCC sought judicial review, arguing that the minister’s decision was unreasonable and that the minister had undermined the will of the legislature by not granting the university status. .Counsel for the Canadian Constitution Foundation (CCF) intervened to say that a commencement provision such as the one at issue grants the executive the power to determine when to bring legislation into force, but does not allow it to change its mind on bringing it into force..In his decision, Justice Lorne Sossin agreed with the CCF that the minister can decide when to proclaim a provision as law but “the power of a minister to defer proclamation is in no way unlimited.”.“According to the CCF, the commencement provision, like the one at issue in this appeal, only grants the executive the limited power to determine when to bring legislation into force, not whether to bring it into force at all,” Justice Sossin wrote. .“[T]here should be no ambiguity as to the limits on the Minister’s discretion,” Justice Sossin added. “Put simply, it would not be open to a Minister to decide that an enacted statute will never be proclaimed.”.Justice Sossin also explained that the executive has a “continuing obligation to determine whether to exercise its statutory discretion under a commencement provision,” and cited case law provided by the CCF that establishes that it is for “Parliament, not the executive, to repeal legislation.”.“We [are] pleased that the Court of Appeal has accepted our arguments that the executive cannot override the will of the legislature by choosing to never proclaim a law into force,” said CCF Litigation Director Christine Van Geyn. .“The decision is a win for parliamentary supremacy and responsible government.”.Sujit Choudhry and Jesse Hartery represented the case for the CCF. The organization is a registered charity that defends the constitutional rights and freedoms of Canadians in the courts of law and public opinion.
