A-810-81
Butler Metal Products Company Limited (Appli-
cant)
v.
Canada Employment and Immigration Commis
sion and Attorney General of Canada (Respond-
ents)
Court of Appeal, Heald, Urie JJ. and Kelly D.J.—
Toronto, May 17; Ottawa, June 8, 1982.
Judicial review — Applications to review — Unemployment
insurance — Review Panel ruling applicant not eligible for
premium reduction for 1978 due to failure to file renewal
application before deadline specified in Commission Rule
75-20 — Commission rejecting applicant's appeal from
Review Panel's decision on basis of strict application of Rule
75-20 without considering whether mitigating circumstances
constituted "special reasons" for which deadline could be
extended — Applicant contends it neither had knowledge of
nor was informed of, Rule 75-20 — Applicant further con
tends Unemployment Insurance Regulation 65(1), under which
Rule 75-20 was made, is invalid because Commission lacked
legislative authority to make it at time promulgated — Alter
natively, applicant contends Regulation 65(1)(b) is ultra vires
Commission — Application allowed — Unemployment Insur
ance Act, 1971, S.C. 1970-71-72, c. 48, ss. .58(y), 64(4),(5),(6)
Jas rep. by S.C. 1974-75-76, c. 80, s. 23] — Unemployment
Insurance Regulations, SOR/73-16, s. 65 — Employment and
Immigration Reorganization Act, S.C. 1976-77, c. 54, s. 71 —
Statutory Instruments Act, S.C. 1970-71-72, c. 38, ss.
2(1)(b),(d), 5, 6, 9, 11 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
The applicant was disqualified from receiving a premium
reduction in respect of its wage-loss or salary continuance plans
for 1978 due to having failed to file the appropriate renewal
application before the deadline set by the Commission. The
Commission had sent the applicant a "Renewal Application"
and "Final Notice" on March 15 and May 2, 1977, respective
ly, without response. After the Commission had sent the appli
cant a premium reduction "Disqualification Notice" on August
9, 1977, the applicant advised the Commission that it had no
record of having received either the renewal application or final
notice, and had no knowledge of a deadline or any requirement
of filing a renewal application. It did, however, admit that
because it had undergone two changes in company controllers
during the relevant times, these documents may have been
received and misplaced. The applicant requested that, in view
of these circumstances, the Review Panel allow its claim to a
premium reduction for 1978, but this was refused. The Com
mission, relying on a strict application of Rule 75-20, rejected
the applicant's appeal from the decision of the Panel without
considering whether the mitigating circumstances put forward
by the applicant constituted "special reasons" for which the
deadline could be extended. Rule 75-20, passed pursuant to
Regulation 65(1) which authorizes the Commission to require
that an application for reduction of an employer's premium be
made "within such time as the Commission may direct before
the first day of each subsequent consecutive year for which a
reduction is applied for", stipulates that a renewal application
must be filed within "60 days from the date on which the
renewal application is mailed to an employer, or such longer
period as the Commission may in any case, for special reasons
allow". The applicant contends that Rule 75-20 is an internal
rule and that it was neither advised of the rule's existence nor
of the possibility that the time for filing could be extended for
special reasons. It also contends that Rule 75-20 is invalid
because the Commission lacked legislative authority to promul
gate Regulation 65(1), under which the rule was made, at the
time that Regulation was brought into force. Alternatively, the
applicant contends that Rule 75-20 is invalid because Regula
tion 65 is ultra vires the Commission.
Held, the application is granted. Rule 75-20 is an internal
rule of the Commission which was not made public or available
to interested parties. Through its failure to make the applicant
aware of the sixty-day limitation period and of the possibility of
it being extended for special reasons, the Commission proceed
ed in a manner that resulted in unfairness to the applicant. This
is sufficient, in itself, to require that the decision be set aside.
Further, there is no indication that the Commission, in making
its decision, took into account the mitigating circumstances put
forward by the applicant in order to determine whether there
were special reasons for an extension of the limitation period.
In failing to do so it erred in law. With respect to the
Commission's legislative authority to promulgate Regulation
65, at the time of its coming into force in December 1972,
paragraph 58(y) and subsections 64(4) and (5) of the Act did
not empower the Commission to make regulations concerning
the manner and time within which applications for premium
reductions could be made. It was not until January 1976 that
the legislature delegated such authority by enacting subsection
64(6). Thus, at the time Regulation 65 was brought into force
there was no empowering legislation and, as a result, the
Regulation is invalid. Further, even assuming that the Commis
sion had legislative authority to make regulations regarding
applications for premium reductions, Regulation 65 would be
invalid because it is ultra vires the Commission. Except with
respect to the requirement that the application be made in the
year in respect of which the deduction is being applied for, the
language of the Regulation merely repeats the formula of the
statute containing the delegation, without providing any specif
ic standards of application. It therefore leaves virtually every
thing to the Commission, in its discretion. The rationale of
Brant Dairy Company Limited et al. v. The Milk Commission
of Ontario et al. applies: a statutory body does not act within
its authority by simply repeating a power in a regulation in the
words in which that power was conferred. As to the question of
whether section 71 of the Employment and Immigration Reor
ganization Act validates Regulation 65 by continuing in force
all rules and regulations issued by the Commission prior to the
coming into force of that section, the case of Re Fletcher, Ex
parte Fletcher v. Official Receiver is of no assistance as it is
distinguishable on the facts. Even if it could be said that section
71 does validate Regulation 65, this would not result in Rule
75-20 being validated. In enacting subsection 64(6) of the
Unemployment Insurance Act, 1971 Parliament's intent was to
delegate the power to prescribe the manner and time for
making premium reduction applications to the Commission. By
providing that this matter be dealt with by regulation it is clear
that Parliament intended that the formal requirements of the
Statutory Instruments Act regarding the filing, registering,
coming into force and publication of regulations, be complied
with so as to ensure their availability to those who are affected
by them. The definitions of "regulation" and "statutory instru
ment" contained in the Statutory Instruments Act, when read
together, clearly encompass Commission Rule 75-20. There
fore, the formal requirements of that Act apply to the rule and
must be complied with before it can be said to be valid. Section
71 of the Employment and Immigration Reorganization Act
did not repeal subsection 64(6) of the Unemployment Insurance
Act, 1971. It is inconceivable that Parliament, in enacting
section 71, intended to authorize a rule which contravened
another enactment. The rules encompassed by section 71 were
those which the Commission was empowered to make. Subsec
tion 64(6), which relates specifically to the fixing of time limits
for premium reduction applications, must be read as an excep
tion to section 71, which is of general scope. Based on this
construction, as regards regulations made under subsection
64(6), section 71 continues in force only those which were
validly made in compliance with the Statutory Instruments
Act. In that Rule 75-20 was not made in compliance with that
Act, it is not a rule which, by the terms of section 71, could be
given continued effect.
CASES JUDICIALLY CONSIDERED
APPLIED:
Brant Dairy Company Limited et al. v. The Milk Com
mission of Ontario et al., [1973] S.C.R. 131.
DISTINGUISHED:
Re Fletcher, Ex parte Fletcher v. Official Receiver,
[1955] 2 All E.R. 592 (C.A.).
COUNSEL:
Robert J. Howe for applicant.
Brian Evernden for respondents.
SOLICITORS:
Aird & Berlis, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the respondent
Commission dated August 18, 1978 wherein it
held that the applicant herein was not eligible for
an unemployment insurance premium reduction
for 1978. The relevant facts are not in dispute and
may be summarized as follows.
The applicant, pursuant to the provisions of the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, as amended, together with the Regu
lations thereunder, applied successfully for a
reduction of its unemployment insurance premi
ums from 1973 to 1977. On March 15, 1977, the
Commission mailed to the applicant a renewal
application for a premium reduction for the year
1978, with respect to the applicant's wage-loss or
salary continuance plans.
On May 2, 1977, the Commission sent the
applicant a "Final Notice" advising it that its
renewal application for 1978 had not been received
and that the applicant would be subject to dis
qualification for premium reduction in the year
1978 if such application was not received in the
Commission's office by May 16, 1977. On August
9, 1977, the Commission sent the applicant a
"Premium Reduction Disqualification Notice"
advising that its premium reduction for 1978 had
been disallowed as the application was not filed
with the Commission prior to the deadline date.
The applicant then wrote to the. Commission advis
ing that it was totally unaware of the deadline date
and of the necessity to file a renewal application. It
also stated that it had no record of ever having
received the renewal application sent to it by the
Commission on March 15, 1977 or the "Final
Notice" sent on May 2, 1977. It also admitted that
the documents may have been received since,
during the relevant times, there were two different
changeovers in the position of Company Controller
and, as a result, the letters in question may have
been misplaced. The applicant requested the
Review Panel of the Commission, in view of these
circumstances, to allow the Company's claim to its
1978 premium reduction. The Review Panel
rejected the applicant's claim. The applicant then
appealed to the Commission. This appeal was
heard by the Commission in Ottawa, on June 27,
1978. At that hearing, counsel for the applicant
enumerated the mitigating circumstances involved,
i.e.: the personnel changeover referred to supra;
the notices had not been addressed to a specific
individual; the time limit for filing was unclear';
the applicant's previous record clearly established
that it was a good corporate citizen; and the
applicant intended to continue providing its
employees with the benefits of a five-twelve premi
um reduction whether or not the appeal was grant
ed. The Commission rejected the appeal, with one
Commission member dissenting and, in doing so,
stated, inter alia:
As the application was received beyond the due date, the
adjudication officer had no alternative but to administer the
legislation as prescribed. (Case, page 19.)
On the same page of the case, the Commission
majority stated as the basis for its decision that:
... the company failed to meet the qualifying conditions as
prescribed by law. The company's sickness plan must not only
meet with the standards for a premium reduction, but the
company must make application for a premium reduction in the
prescribed time and manner ....
As its authority to prescribe time limits within
which to apply for unemployment premium reduc
tions, the respondent Commission relies on the
provisions of Unemployment Insurance Regulation
65 which came into force on December 21, 1972
(SOR/73-16). That Regulation reads as follows:
Application for Reduction of Employer's Premium
65. (1) Every application for a reduction of the employer's
premium referred to in subsection 59(1) or 60(1) shall be in a
form approved by the Commission, be accompanied by such
documents and information as the Commission may require
and be made
(a) on or before the 30th day of September next before the
first day of the first year for which a reduction is applied for;
or
(b) at such time as the Commission may direct before the
first day of each subsequent consecutive year for which a
reduction is applied for.
(2) Upon receiving an application for a reduction of an
employer's premium, an officer of the Commission shall decide
whether or not a reduction shall be made.
The "Premium Reduction Disqualification Notice" of
August 9, 1977 while referring to a "deadline date", did not
specify what that date was.
(3) An employer may, within thirty days of the mailing of a
notice of a decision made pursuant to subsection (2), apply for
a review of the decision by a review panel consisting of officers
designated by the Commission.
(4) An employer who is not satisfied with the decision of the
review panel referred to in subsection (3) may appeal to the
Commission for a final determination of the question.
The Commission states that, pursuant to said
Regulation 65(1)(b), it made the following rule,
effective May 1, 1975:
ANNUAL RENEWAL DATE OF APPLICATION FOR PREMIUM
REDUCTION
75-20
The Commission considered the document submitted by its
Executive Director Operations and approved the proposal
therein. It agreed 65(1)(b) and 73(1)(b) of the Unemployment
Insurance Regulations would be 60 days from the date on
which the renewal application form is mailed to an employer, or
such longer period as the Commission may in any case, for
special reasons, allow.
It is to be noted that the "60-day rule" invoked by
the Commission supra is subject to extension by
the Commission "for special reasons". However,
the letter of May 2, 1977 to the applicant made no
mention of a possible extension of time for special
reasons. The letter clearly stated that the applicant
would be disqualified if the 60-day limit was not
complied with. Likewise, the disqualification
notice of August 9, 1977 made no reference to a
possible extension. Then, in the Commission's rea
sons quoted supra, it is said that:
... the company must make application for a premium reduc
tion in the prescribed time and manner ....
Again, there is no suggestion that the Commission
has any power to extend the 60-day period. At the
hearing before us, counsel for the applicant said
that the applicant was not aware, or made aware
of, the time limit rule or the possibility of a time
extension, and that it was never mentioned or
referred to in any of the appeal hearings. He
referred to it as an "internal rule" of the Commis
sion, a rule that was not made public or available
to interested parties.
It is my opinion that the Commission, in light of
its own rule empowering it to extend the filing date
herein, if "special reasons" were established, erred
in failing to determine whether or not the mitigat-
ing circumstances referred to herein by the appli
cant would constitute such "special reasons".
There is no indication from the Commission's rea
sons that it considered whether or not the basis for
an extension had been established; rather, the pas
sage quoted supra makes it clear that the Commis
sion was applying the 60-day rule without any
possibility of extension. Additionally, it seems to
me that the procedure adopted by the Commission
in this case resulted in unfairness to the applicant.
The Commission concedes it has an internal rule
providing for a 60-day limit for filing applications
which it can extend for special reasons. Yet, this
applicant was not advised of the possibility of a
time extension and its claim was dismissed because
it was not timely. It is hard to conceive of a course
of conduct more likely to be prejudicial to parties
appearing before the Commission. Quite apart
from the other attacks made by the applicant on
the decision of the Commission, it is my view that
the manner in which the Commission proceeded
against this applicant, as detailed supra, would be
sufficient, of itself, to require that the decision be
set aside.
Dealing now with the applicant's attack on the
validity of Regulation 65 itself, the applicant sub
mits that at the time when Regulation 65 came
into force, i.e. December 21, 1972, there was no
empowering legislation authorizing the Commis
sion to promulgate such a Regulation. The appli
cant concedes that, with the coming into force on
January 4, 1976 of subsections 64(4),(5) and (6)
of the Unemployment Insurance Act, 1971 [as rep.
by S.C. 1974-75-76, c. 80, s. 231 2 , the Commission
2 23. Subsections 64(4) and (5) of the said Act are repealed
and the following substituted therefor:
"(4) The Commission shall, with the approval of the
Governor in Council, make regulations to provide a system
for reducing an employer's premium payable under this Act
when the payment of any allowances, monies or other ben
efits under a plan that covers insured persons employed by
the employer, other than one established under provincial
law, would have the effect of reducing the benefits that are
payable to such insured persons under the Act, in respect of
unemployment caused by illness or pregnancy, if insured
persons employed by the employer will benefit from the
reduction of the employer's premium in an amount at least
equal to five-twelfths of the reduction, but subject to para
graph (a) of section 65.
(5) The Commission shall, with the approval of the Gover
nor in Council, make regulations to provide a system for
reducing the premium payable under this Act when the
thereafter possessed the power to pass a regulation
dealing with time limits for premium reduction
applications, pursuant to the provisions of subsec
tion 64(6). However, the submission is that, at the
time Regulation 65 was passed and came into
force, no statutory authority existed in the Com
mission. Thus, in the applicant's view, Regulation
65 is invalid.
The respondent Commission's answer to that
submission is to the effect that, prior to January 4,
1976, and including the period in 1972 when
Regulation 65 was enacted and came into effect,
paragraph 58(y) and subsections 64(4) and (5) of
the Unemployment Insurance Act, 1971, as they
then were, specifically conferred the power upon
the Commission to make Regulation 65, including
paragraph 65(1)(b), the portion of Regulation 65
relied upon in the case at bar. Those sections read
as follows:
Regulations
58. The Commission may, with the approval of the Governor
in Council, make regulations
(y) prescribing anything that by this Act is to be prescribed
by regulations.
payment of an allowance, monies or other benefits under a
provincial law to insured persons in respect of sickness or
pregnancy would have the effect of reducing or eliminating
the benefits that are payable under this Act to such insured
persons in respect of unemployment caused by illness or
pregnancy, but subject to paragraph (a) of section 65.
(6) For the purposes of subsections (4) and (5), the
Commission may, with the approval of the Governor in
Council, make regulations
(a) prescribing the manner and time for making an
application for a premium reduction;
(b) prescribing the standards that must be met by a plan to
qualify for a premium reduction and the time during
which such plan must be in effect;
(c) prescribing the method for determining the amount of
reduction for plans of given standards and the use to be
made of actuarial calculations and estimates;
(d) providing for the making of decisions relating to
premium reduction and appeals therefrom in cases of
dispute;
(e) prescribing the manner in which the insured earnings
of insured persons will be reported by employers to the
Department of National Revenue, Taxation; and
(f) generally, providing for any other matters necessary for
carrying out the purposes and provisions of subsections (4)
and (5)."
64....
(4) If the payment of any allowances, monies or other
benefits under any plan, other than one established under a
provincial law, that covers insured persons employed by an
employer would have the effect of reducing the benefits that
are payable to such insured persons under this Act in respect of
unemployment caused by illness or pregnancy the amount of
the employer's premium payable under this Act by that
employer in respect of insured persons who are covered under
such plan shall be reduced as prescribed if insured persons
employed by the employer will benefit from the reduction of
the employer's premium in an amount at least equal to five-
twelfths of the reduction but subject to paragraph (a) of
section 65.
(5) Where under a provincial law any allowances, monies or
other benefits are payable to an insured person in respect of
sickness or pregnancy that would have the effect of reducing or
eliminating the benefits that are payable under this Act to such
insured person in respect of unemployment caused by that
illness or pregnancy, the premium payable under this Act in
respect of that insured person shall be reduced or eliminated as
prescribed but subject to paragraph (a) of section 65.
With respect, I am unable to accept this submis
sion by counsel for the Commission. In my view,
those sections did not empower the Commission to
make regulations concerning the manner and time
within which applications for premium reduction
may be made. Clearly, subsection 64(6), which
came into effect on January 4, 1976, gave the
Commission that power but since it did not have
the power when Regulation 65 was enacted, the
Regulation is, in my view, invalid.
The applicant's second attack on the validity of
Regulation 65 is expressed in the alternative to the
first attack dealt with supra and is to the effect
that, assuming jurisdiction in the Commission to
make regulations concerning applications for
unemployment premium reductions, Regulation
65(1)(b), since it requires applications "at such
time as the Commission may direct before the first
day of each subsequent consecutive year for which
a reduction is applied for" is ultra vires because
the Commission has purported to give itself
random power to administer as it sees fit without
any reference point in standards fixed by regula
tion. In support of this submission, the applicant
relied on the decision of the Supreme Court of
Canada in the case of Brant Dairy Company
Limited et al. v. The Milk Commission of Ontario
et al.' In that case, the portion of the Regulation
3 [1973] S.C.R. 131.
found to be ultra vires simply repeated the for
mula of the statute containing the delegation,
specified no standards and left everything to the
Board to whom the regulation-making power was
delegated, in its discretion. In the case at bar,
there is the slight difference that Regulation
65(1)(b) leaves everything to the Commission's
own discretion excepting the requirement that, in
any event, the application must be made in the
year for which the reduction is being applied.
Notwithstanding this factual distinction, it is my
opinion that the rationale of the Brant Dairy case
(supra) applies to the situation in this case. I
accordingly apply the views of Laskin J. (as he
then was) in that decision and specifically that
portion of his reasons reading as follows, at pages
146 and 147:
A statutory body which is empowered to do something by
regulation does not act within its authority by simply repeating
the power in a regulation in the words in which it was con
ferred. That evades exercise of the power and, indeed, turns a
legislative power into an administrative one. It amounts to a
redelegation by the Board to itself in a form different from that
originally authorized; and that this is illegal is evident from the
judgment of this Court in Attorney General of Canada v. Brent
([1956] S.C.R. 318).
In the Brent case, what was in issue was the exercise of
power delegated to the Governor in Council by the Immigra
tion Act to make regulations respecting enumerated matters.
What the Governor in Council did was to embody the very
powers in a regulation which confided their application to a
special inquiry officer. This was held to be an invalid subdele-
gation; it converted the required reflection in a regulation of the
opinion of the Governor in Council into an unregulated exercise
from time to time of the opinion of a special inquiry officer.
The principle is the same here. The Board was required to
legislate by regulation. Instead, it has purported to give itself
random power to administer as it sees fit without any reference
point in standards fixed by regulation.
For these reasons I have concluded that even
assuming jurisdiction to enact Regulation
65(1)(b), the Regulation is ultra vires.
The respondent Commission submits, however,
that section 71 of the Employment and Immigra
tion Reorganization Act, S.C. 1976 - 77, c. 54,
which came into force on August 15, 1977, gave
statutory force to Regulation 65(1)(b) and con-
firmed that the said Regulation was validly made
under the Act. Section 71 reads as follows:
71. All orders, rules, regulations, by-laws, decisions, direc
tions, contracts, leases, licences, authorizations, consents, decla
rations, designations, nominations, permits, recognitions or
other documents made, given or issued pursuant to any Act of
Parliament by or in relation to the former Commission, former
Department or former Minister, as the case may be, that are in
force when this Act comes into force, continue in force thereaf
ter as though made, given or issued pursuant to this Act until
they are repealed, replaced, rescinded or altered by or pursuant
to this Act or any other Act of Parliament.
Thus, the submission continues, since Regulation
65(1)(b) has been validated by said section 71, the
Commission rule herein relied on is also validated
since its validity depends on the validity of Regula
tion 65(1)(b). In support of this submission, the
respondent's counsel relies upon the case of Re
Fletcher, Ex parte Fletcher v. Official Receiver'.
In that case, the rule being impeached was Rule
219 of the Bankruptcy Rules, 1952, passed pursu
ant to the rule-making powers conferred by section
132 of the Bankruptcy Act, 1914, 4 & 5 Geo. 5, c.
59 (U.K.). It was generally accepted by all three
Judges of the Court of Appeal that Rule 219
would be invalid because its operation involved an
extension of the discretionary jurisdiction of the
Court not authorized by the relevant provision of
the statute. However, the Court held, unanimous
ly, that the validity of the rule was rescued by the
provisions of subsection 168(3) of the Bankruptcy
Act, 1914, which provided:
168....
(3) Until revoked or altered under the powers of this Act, ...
any general rules and orders made under the Bankruptcy Acts,
1883 to 1913, and the Bankruptcy (Discharge and Closure)
Act, 1887, which are in force at the commencement of this Act,
shall continue in force, and shall have the effect as if made
under this Act.
In referring to said subsection 168(3), Romer L.J.
said at page 603:
It cannot, in my judgment, be supposed that Parliament, when
enacting that subsection, were contemplating that some of the
rules which were then current were invalid or were even of
doubtful validity; for if any suspicion had been entertained on
the subject, the legislature would presumably have revoked
such of the doubtful rules as it disapproved of and expressly
validated the others, rather than have left it to the courts on
some future occasion to decide which of the rules were ultra
vires and which were not. In my opinion, the reference in the
sub-section to the previously made rules and orders "which are
4 [1955] 2 All E.R. 592 (C.A.).
in force at the commencement of this Act" embraced the rules
and orders which were de facto in force, whether validly made
or not; and a fortiori the reference would include a rule such as
r.192 which had for years past been treated as valid by the
courts.
The other Justices expressed similar views. It
seems clear from reading all three judgments that
one of the most important considerations in the
view of the Court was the fact that since the rule
in question was the successor of other rules in
substantially identical terms which had formed
part of the Bankruptcy Code for about two gener
ations, it was too late to challenge, successfully,
the validity of the rules. The other consideration
which seems implicit, (certainly in the reasons of
Romer L.J. quoted supra) is that the impeached
rule be one "which had for years past been treated
as valid by the courts".
That factual situation is quite different from the
one in the case at bar. In this case, Regulation 65
(which came into force only in 1972) is certainly
not in the category of a regulation which "had for
years past been treated as valid by the courts". In
the argument before us, counsel did not suggest
that any court had previously ruled on the validity
of this Regulation. Accordingly, I do not find the
Fletcher decision to be persuasive or of much
assistance in determining the validity of
Regulation 65.
Furthermore, even assuming without deciding
that said section 71 validates Regulation 65(1)(b),
I am not persuaded that such a circumstance
would breathe validity into the Commission rule
herein impeached. Said section 71 is contained in
the "Transitional and Consequential Provisions" of
the Employment and Immigration Reorganization
Act, being Part IV of that Act. It is clear from the
scheme of Part IV that in section 71, Parliament
intended to continue in full force and effect the
"orders, rules, regulations", etc., issued pursuant
to the Unemployment Insurance Act, 1971. Sub
section 64(6) of the Unemployment Insurance Act,
1971 came into effect on January 4, 1976. A
reading of that subsection clearly reveals that, in
enacting paragraph 64(6)(a), Parliament intended
to delegate to the Commission the power to pre
scribe the manner and time for making premium
5 See for example: Sir Raymond Evershed M.R. at p. 594
(F.&G.). Sir Raymond Evershed M.R. at p. 599 (F.).
reduction applications by regulations (emphasis
added). "Regulation" is defined in paragraph
2(1)(b) of the Statutory Instruments Act, S.C.
1970-71-72, c. 38 as follows:
2. (1) In this Act,
(b) "regulation" means a statutory instrument
(i) made in the exercise of a legislative power conferred by
or under an Act of Parliament, or
(ii) for the contravention of which a penalty, fine or
imprisonment is prescribed by or under an Act of
Parliament,
and includes a rule, order or regulation governing the prac
tice or procedure in any proceedings before a judicial or
quasi-judicial body established by or under an Act of Parlia
ment, and any instrument described as a regulation in any
other Act of Parliament;
"Statutory instrument" is defined in paragraph
2(1)(d) of that Act as follows:
2. (1) In this Act,
(d) "statutory instrument" means any rule, order, regulation,
ordinance, direction, form, tariff of costs or fees, letters
patent, commission, warrant, proclamation, by-law, resolu
tion or other instrument issued, made or established
(i) in the execution of a power conferred by or under an
Act of Parliament, by or under which such instrument is
expressly authorized to be issued, made or established
otherwise than by the conferring on any person or body of
powers or functions in relation to a matter to which such
instrument relates, or
(ii) by or under the authority of the Governor in Council,
otherwise than in the execution of a power conferred by or
under an Act of Parliament,
but does not include
(iii) any such instrument issued, made or established by a
corporation incorporated by or under an Act of Parliament
unless
(A) the instrument is a regulation and the corporation
by which it is made is one that is ultimately accountable,
through a Minister, to Parliament for the conduct of its
affairs, or
(B) the instrument is one for the contravention of which
a penalty,- fine or imprisonment is prescribed by or
under an Act of Parliament,
(iv) any such instrument issued, made or established by a
judicial or quasi-judicial body, unless the instrument is a
rule, order or regulation governing the practice or proce
dure in proceedings before a judicial or quasi-judicial body
established by or under an Act of Parliament,
(v) any such instrument in respect of which, or in respect
of the production or other disclosure of which, any privi
lege exists by law or whose contents are limited to advice
or information intended only for use or assistance in the
making of a decision or the determination of policy, or in
the ascertainment of any matter necessarily incidental
thereto, or
(vi) an ordinance of the Yukon Territory or the Northwest
Territories or any instrument issued, made or established
thereunder.
The definition of "regulation" supra when read
with the definition of "statutory instrument"
supra, in my opinion, clearly encompasses a Com
mission rule like the one herein impeached.
Accordingly, the provisions of the Statutory
Instruments Act dealing with transmission to the
Clerk of the Privy Council (section 5); registration
thereof by the Clerk (section 6); date of coming
into force (section 9); and publication in the
Canada Gazette (section 11) would apply to this
rule. Thus it is clear that Parliament, by requiring
that rules respecting premium reduction applica
tions be made by regulation, intended that the
formalities attendant upon the adoption of a regu
lation be complied with. An important reason for
such a requirement would be that the registration
and publication of such a public document would
ensure its availability to all those who may be
affected by it. There is no evidence, nor was there
any suggestion by counsel, that the provisions of
the Statutory Instruments Act were complied with
in respect of this rule. Subsection 64(6) of the
Unemployment Insurance Act, 1971 was not
repealed by the Employment and Immigration
Reorganization Act. Thus, it continued in full
force and effect and the two sections (64(6) and
71) must be read together having regard to the
general objects of the statute which must be read
and given effect to as a whole and must, if possi
ble, be so interpreted as to be reconcilable. Since
subsection 64(6) deals specifically with the matter
of fixing time for a premium reduction application
while section 71 is of general scope, the accepted
norms of statutory interpretation require that sec
tion 71 be so construed as to except from its
operation any "rule", etc., which, if not so except
ed, would produce a result that would render
nugatory the provisions of subsection 64(6) 6 . It is
inconceivable, in my view, that Parliament, by
6 See: Craies on Statute Law, 7th Edition, p. 222.
section 71, intended to give Parliamentary sanction
to a Commission rule which violated another
enactment by Parliament, unless the language
used was unequivocal to grant approval to some
thing which would otherwise be void. Adopting
that approach to interpretation it is clear, in my
view, that the "orders, rules, regulations", etc.,
encompassed by section 71 include only rules pro
mulgated by the Commission by regulation since
those are the only kind of rules which subsection
64(6) empowers the Commission to make. Since
the Commission "rule" herein impeached was not
a "rule" made by regulation, it is not a "rule"
which the Commission was authorized to make,
and it is not therefore an order, rule or regulation
as those terms are used in section 71. Accordingly,
it is my conclusion that the provisions of section 71
do not apply to the kind of "internal order" passed
by the Commission in this case.
For these reasons, I would reject the submission
of counsel for the respondents concerning the
applicability of section 71 to the Commission rule
herein impeached.
Accordingly, and for all of the above reasons, I
would allow the section 28 application, set aside
the decision of the Commission herein dated
August 18, 1978, and refer the matter back to the
Commission for reconsideration on the basis that
Commission Rule 75-20, passed by the Commis
sion and said to be effective May 1, 1975 and
entitled "Annual Renewal Date of Application for
Premium Reduction" is invalid and void.
URIE J.: I agree.
KELLY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.