Judicial and Legislative Cooperation at the Legislative Assembly of Ontario: The Legislative Process of Estate Bills

Separation of powers between the branches of government is a well-known principle of our democratic system. However, there is a unique parliamentary procedure in Ontario whereby the judiciary plays a role in the scrutiny of proposed legislation. In this article, the authors explain how an Estate Bill is one of the last remnants of the Assembly’s judicial role, describe the legislative process of such bills, and offer a case study of this process in action. They conclude with a call for discussion about whether there is merit in judicial review of other types of legislation provided it would be a worthwhile use of judicial resources and be conducted in a way that did not infringe on the principle of separation of power.

William Wong and Gabriela Dedelli

William Wong is Senior Parliamentary Counsel at the Legislative Assembly of Ontario. Gabriela Dedelli is Parliamentary Counsel at the Legislative Assembly of Ontario.

Introduction

The Legislative Assembly of Ontario (“Assembly”) has a unique parliamentary procedure where the judiciary plays a role in the scrutiny of legislation. After the Assembly gives first reading to an Estate Bill, the Bill is referred to the Judiciary for scrutiny before further parliamentary scrutiny by the Standing Committee on Procedure and House Affairs. This article first outlines what an Estate Bill is and how it is one of the last remnants of the Assembly’s judicial role, then describes the legislative process for this type of bill (including the involvement of the Judiciary), and finally provides a case study of this unique procedure in action. It concludes with a brief discussion about how the Assembly and Judiciary cooperate with respect to an Estate Bill.

Private Bills and Estate Bills

Private Bills

In the Assembly, private bills are proposed laws that have as their object a “special benefit to a particular person or group of persons.”1 An Estate Bill is always advanced as a private bill. If passed, a private bill grants an individual or group the right to claim “an exception from the general law” or the provision of “something that cannot be obtained under general law.”2 This can be contrasted with public bills, which, if enacted, become laws of general application that usually relate to matters of public policy. Unlike public bills, which can be sponsored by any Member of the Assembly (“Member”), including members of Cabinet, private bills can only be sponsored by a backbench Member (a Member who is not part of the Executive Council).

Private bills are an important, but rarely discussed or publicized, aspect of the Assembly’s legislative work. Private bills originate from the ancient right for an individual to petition Parliament and were used to obtain remedies that may not have been available judicially. While the expanding jurisdiction of the Judiciary has generally overtaken the need for the Assembly to exercise its remedial power in most cases, there are still several instances where the Assembly’s remedial jurisdiction is exercised. These instances include:

• the revival of dissolved corporations (this is the most common type of private bill that the Assembly considers);
• amendments of previous private bills;
• the establishment of institutions (including some municipalities and regulatory associations); and
• amendments of trusts and estates where other relief (including from the Judiciary) is unavailable.

Since private bills benefit an individual or group, the applicant is responsible for the costs associated with the legislative process (including drafting and printing costs). In most cases, the applicant retains the services of Legislative Counsel (legislative drafters within the Ministry of the Attorney General) to draft the bill. Where a private bill is drafted by external counsel, Legislative Counsel will still review the bill to determine its appropriateness as to form, as well as to determine if the bill is a special type of private bill (i.e. Estate Bill) that requires it to be subject to special legislative procedures.

Further, private bills may undergo review by affected government ministries to ensure that they are adequate from a legal and operational standpoint, as well as to determine how the public interest would be affected by their enactment. The ministries may suggest revisions to private bills or advise that the government will oppose their enactment in whole or in part. An applicant may revise a private bill in accordance with ministry comments or choose not to implement suggested changes, if any.

Estate Bills

Ontario’s Legislative Counsel – who are not employees of the Legislature but the Executive – will identify bills that, in their view, amend trusts and/or estates. If such a bill is introduced, it is designated as an Estate Bill and follows a special legislative process.3 Where only part of a private bill relates to trusts and estates, only those provisions are designated as Estate Provisions and subject to the special process.4 Interestingly, there is no definition of what constitutes an Estate Bill or Estate Provision. In most cases, the proposed legislation specially requests an amendment to a trust or estate and identification is a straight- forward process. Where it is unclear whether a bill or provision involves the amendment of a trust or estate, Legislative Counsel relies on practice and convention to determine whether it should be designated as an Estate Bill.

In most cases, an applicant may choose to go the Estate Bill route because the law is unclear on a particular point or an amendment to the trust/estate may require too many judicial applications to be practical.

Legislative Process of an Estate Bill

Public Notice and Application

Prior to the introduction of an Estate Bill, as with all private bills, an applicant must provide notice to the public. Applicants must provide notice of their proposed bill to both the general public and the legal community by advertising the application in:5

• a local newspaper circulated in the municipality most affected by the application once a week for four consecutive weeks; and
• The Ontario Gazette once a week for four consecutive weeks.

Notices must be signed by the applicant, clearly state the nature and object of the application, and indicate that any person who has an interest in the application and who wishes to make submissions for or against the application should notify the Clerk of the Assembly in writing.6

Once public notice has been provided, the applicant may apply for an Estate Bill by filing with the Clerk of the Assembly a copy of the draft bill together with a fee of $150, and a statutory declaration proving publication of the necessary notices.7 The applicant must also file, prior to First Reading, a compendium of background information and put forward the name of the Member who is to introduce the Bill.8

Introduction and First reading

Once an applicant submits an Estate Bill and a Member agrees to sponsor it, the Member will introduce the Bill and move that it receives First Reading. If the House agrees to First Reading, the Bill is immediately referred to the Commissioners of Estates (“Commissioners”). Judges of the Ontario Superior Court of Justice (“ONSC”) are Commissioners by virtue of their office.9 The substantive review of an Estate Bill commences with the Commissioners’ examination because bills (including any Estate Bill) are not printed until after First Reading and debate is not permitted on a motion for First Reading.

Study by the Commissioner of Estates

Once an Estate Bill is ordered by the Assembly to be referred to the Commissioners, the Clerk of the Assembly writes to the Chief Justice of the ONSC to request that two Judges be appointed to review the Bill. The Commissioners review the Bill to determine if it is reasonable for the Bill, or the provisions thereof, be passed into law.10 The Commissioners are instructed to assess the reasonableness of the Estate Bill assuming that the preamble of the Bill is proven to the satisfaction of the Assembly.11 With the exception of this instruction, the Commissioners are free to examine the Estate Bill in any way that they wish. This may include asking the Assembly to request additional information or documentation from the applicant.

While the Assembly is not actively engaged in the deliberations at this point – other than being the intermediary between the Court and the Applicant – the Assembly and the sponsoring Member are informed, and keep track, of the correspondence between the Court and the Applicant. Once the Commissioners finish their examination, they report back to the Assembly with one of three recommendations:

• that the Estate Bill should pass into law;
• that certain parts of the Estate Bill should not pass into law; or
• that the Estate Bill should not pass into law.

Report of the Commissioners and Study by the Standing Committee on Procedure and House Affairs

If the Commissioners report that the Estate Bill should not be pass into law, the Standing Orders require that the Estate Bill not be further considered.12 Otherwise, the Commissioners’ report and the Estate Bill are referred to the Standing Committee on Procedure and House Affairs (“SCPHA”).13 If the Commissioners recommend that part of the Estate Bill not be passed into law, the Standing Orders require the SCPHA to amend the Estate Bill by removing the provisions that the Commissioners recommend not be passed into law before considering the balance of the Bill.14

Essentially, the Standing Orders provide the Commissioners/Judges with a line-item veto on an Estate Bill. However, the decision by the Assembly to not proceed with any Estate Bill that is not recommended by the Commissioners is a policy decision, and there is no legal requirement for this. Further, there is no legal or procedural impediment for the Assembly to amend its rule (either permanently or on an ad hoc basis) and allow a non-recommended Estate Bill to proceed. That said, the Assembly has always accepted a negative recommendation by the Commissioners.

Despite the above, just because the Commissioners recommend that the Estate Bill should pass into law does not mean that the Assembly has any obligation to pass the Bill. The purpose of the Commissioners’ examination is to determine if there are any legal reasons why an Estate Bill should not pass into law. The SCPHA will ultimately review an Estate Bill to determine if it should pass into law following the normal private bill process. Members of the SCPHA can examine the applicant and listen to deputations of objectors and supporters. Technically, there is nothing preventing the SCPHA from requesting the attendance of the Commissioners to ask questions of their report. However, this has never been done and the potential separation of powers concerns that arise from requesting ONSC Judges to attend before the SCPHA have not been considered.

Case Study Example: Bill Pr79, Kingston Health Sciences Centre Act, 2018

Bill Pr79, Kingston Health Sciences Centre Act, 2018 [Bill Pr79], provides a clear example of what constitutes an Estate Bill, as well as how such a bill progresses through the legislative process. Bill Pr79 received royal assent on May 7, 2018, and is reproduced at the conclusion of this article

Background and Rationale for Bill Pr79

Bill Pr79 arose from the integration of two Kingston hospitals, Kingston General Hospital and Religious Hospitallers of Saint Jospeh of the Hotel Dieu of Kingston (“Legacy Hospitals”), into the Kingston Health Sciences Centre (“KHSC”). KHSC was a new entity offering all the healthcare programs and services previously provided by the Legacy Hospitals.

While the Legacy Hospitals remained in existence after KHSC was created, they were no longer active in the provision of healthcare services. This caused concerns given that the Legacy Hospitals had a long history of providing healthcare services in the Kingston area and frequently received financial support from the community in the form of donations made by living persons or by will following death. As such, the enactment of special legislation was sought to ensure that all gifts, trust, bequests, devises, and grants of property to the Legacy Hospitals could be used by KHSC for the same purposes for which they would have been used had there been no integration. Absent the special legislation, court orders giving effect to gifts made to the Legacy Hospitals would have been required for each gift, which raised concerns with respect to:

• the need for extensive litigation;
• the potential for inconsistent judicial decisions;
• the diversion of resources away from charitable activities; and
• the risk of gifts failing, against testators’ wishes, due to the operation of doctrines of trusts and charities law.

Application

Bill Pr79 was introduced in the Assembly by MPP Sophie Kiwala (Member for Kingston and the Islands at the time) and carried First Reading on February 27, 2018. Prior to this, an application and compendium of background information was filed with the Clerk of the Assembly. The application contained the necessary statutory declaration of notices and filing fees described in this paper above. In addition, it contained a compendium of background information including the following:

• a brief summary and rationale for Bill Pr79;
• a legal opinion from a law firm explaining the need for the Bill and how it was required to ensure that the wishes of living and deceased donors in making gifts to the Legacy Hospitals were fulfilled and not frustrated;
• information respecting the establishment of the Legacy Hospitals and KHSC;
• proposed language for the Bill based on a similar precedent legislation;
• responses to the proposed action by affected persons or groups, including the Office of the Public Guardian and Trustee;
• confirmation that there were no persons or groups known to the applicant to be opposed to the Bill;
• correspondence from MPP Kiwala in support of the application and expressing her willingness to introduce the proposed Bill in the Assembly; and
• confirmation that certain Standing Order requirements for private bills did not apply to the applicant.

• Prior to introduction and First Reading, Legislative Counsel prepared the draft bill.

Legislative Process

After First Reading carried on February 27, 2018, Bill Pr27 was referred to the Commissioners by way of letter from the Clerk of the Assembly to the Chief Justice of the ONSC. The Chief Justice appointed two judges of the Court to review the Bill as Commissioners on March 8, 2018, and the Commissioners reported their opinion back to the Clerk shortly thereafter.

The report by the Commissioners regarding Bill Pr79 was tabled on March 27, 2018 (“Report”). The Report was favourable, concluding that Bill Pr79 was in the public interest and that it was reasonable for the Bill to pass. Subsequently, the Bill and the Report were ordered referred to the Standing Committee on Regulations and Private Bills (“SCRPB”).15

SCRPB reported Bill Pr79 to the Assembly, without Amendment, on April 11, 2018. Second Reading of the Bill carried on May 7, 2018, as did Third Reading. The Bill received Royal Assent on the same date and came into force upon receiving Royal Assent.

Had the Commissioners issued a negative report on Bill Pr79 such that, in their opinion, the Bill should not have passed, then the Bill would not have been considered further. Had the Commissioners issued a partly negative report, whereby, in their opinion, part of the Bill should not have passed, SCRPB would have amended the Bill by deleting the parts that the Commissioners took issue with. Finally, had the Commissioners recommended changes to the Bill, the SCRPB would likely have amended the Bill in accordance with the recommendations as a matter of the Committee’s traditional practice.

Conclusion

Ontario’s Estate Bill procedures are unique in directly incorporating the Judiciary in the legislative process. This cooperation of the Judiciary and the Legislature highlights the ability for these two institutions to work in a collaborative manner. There is no reason why this type of cooperation could not be applied to certain other types of legislation. Questions regarding maintaining separation of powers and the effective use of judicial resources will, of course, need to be addressed. However, because Members are not necessarily legal experts, the incorporation of judicial viewpoints while the Legislature is making laws (as opposed to after legislation is enacted for certain matters) will only improve legislative instruments.

Appendix A: Kingston Health Sciences Centre Act, 2018, S.O. 2018, c. Pr1 – Bill Pr79

CHAPTER PR1

An Act respecting the Kingston Health Sciences Centre

Assented to May 7, 2018

Preamble

On March 31, 2017, Kingston General Hospital and Religious Hospitallers of Saint Joseph of the Hotel Dieu of Kingston voluntarily integrated by entering into agreements to permit and require Kingston Health Sciences Centre to fulfil the purposes and objects that formerly governed Kingston General Hospital and Hotel Dieu Hospital.

The Kingston Health Sciences Centre has applied for special legislation to provide that all gifts, trusts, bequests, devises and grants of property to Kingston General Hospital or Hotel Dieu Hospital, or to University Hospitals Kingston Foundation for the benefit of either of them, shall be used by Kingston Health Sciences Centre for the purposes for which they would have been used had the two hospitals not integrated.

Kingston General Hospital, Hotel Dieu Hospital and Kingston Health Sciences Centre are charitable corporations without share capital. Kingston Health Sciences Centre operates the public hospital sites formerly operated by Kingston General Hospital and Hotel Dieu Hospital. University Hospitals Kingston Foundation is a charitable corporation established to raise and administer funds for Kingston General Hospital, Hotel Dieu Hospital and Providence Care Centre.

It is appropriate to grant the application.

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

• In this Act,

“Foundation” means the University Hospitals Kingston Foundation;

“Hotel Dieu Hospital” means the Religious Hospitallers of Saint Joseph of the Hotel Dieu of Kingston.

Gifts, etc., to Kingston General Hospital or Hotel Dieu Hospital

• All gifts, trusts, bequests, devises and grants of property to Kingston General Hospital or Hotel Dieu Hospital shall be deemed to be gifts, trusts, bequests, devises and grants of property to Kingston Health Sciences Centre.

Gifts, etc., to Foundation for benefit of Kingston General Hospital or Hotel Dieu Hospital

• All gifts, trusts, bequests, devises and grants of property to the Foundation for the benefit of Kingston General Hospital or Hotel Dieu Hospital shall be deemed to be gifts, trusts, bequests, devises and grants of property to the Foundation for the benefit of Kingston Health Sciences Centre.

Use of gifts, etc.

• All gifts, trusts, bequests, devises and grants of property to or for the benefit of Kingston General Hospital or Hotel Dieu Hospital that are deemed under section 2 or 3 to be gifts, trusts, bequests, devises and grants of property to or for the benefit of Kingston Health Sciences Centre, shall, subject to any restrictions or directions set out in the terms of any such gift, trust, bequest, devise or grant of property regarding the purposes for which it may be used,

1. 1. in the case of gifts, trusts, bequests, devises and grants of property to or for the benefit of Kingston General Hospital, be used by Kingston Health Sciences Centre solely for the purposes set out in the letters patent of Kingston General Hospital in effect on March 31, 2017; and
   2. in the case of gifts, trusts, bequests, devises and grants of property to or for the benefit of Hotel Dieu Hospital, be used by Kingston Health Sciences Centre solely for the purposes set out in the letters patent of Hotel Dieu Hospital in effect on March 31, 2017 and in a manner consistent with the obligations of a Hospital affiliated with a religious organization and obligated to provide health care in a manner consistent with the Roman Catholic religion, including, without limitation, as more particularly described in the Catholic Health Alliance of Canada’s Health Ethics Guide, as amended from time to time.

Application

5 The provisions of this Act apply whether the will, deed or other document by which the gift, trust, bequest, devise or grant of property is made, is made before or after the day this Act comes into force.

Commencement

6 This Act comes into force on the day it receives Royal Assent.

Short title

7 The short title of this Act is the Kingston Health Sciences Centre Act, 2018.

Notes

1. 1. Legislative Assembly of Ontario, Procedures for Applying for Private Legislation, (2022) online: Legislative Assembly of Ontario: https://www.ola.org/sites/default/files/ common/private-legislation-procedures-en_May%20 2022.pdf.
   2. Ibid.
   3. Legislative Assembly of Ontario, Standing Orders of the Legislative Assembly of Ontario (“SO”), 91(a).
   4. SO 91(a).
   5. SO 85(e).
   6. SO 85(e).
   7. Legislative Assembly of Ontario, supra note 4.
   8. Ibid.
   9. SO 91.
   10. SO 91(b).
   11. Ibid.
   12. SO 91(b).
   13. SO 91(e)
   14. SO 91(e).
   15. Note that, between First Reading and receipt of the Commissioners for Estate Bills Report, the Assembly entered the second session of the 41st Parliament. Bill Pr79 was ordered carried over from the previous session on March 27, 2018. Note also that the Standing Committee on Procedure and House Affairs replaced the Standing Committee on Regulations and Private Bills in 2022.