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FORM 109 










ONTARIO 




ROYAL COMMISSION 



INQUIRY INTO CIVIL RIGHTS 



REPORT NUMBER ONE 



VOLUME 3 



1968 



j'y. 



c 



'5 



COMMISSIONER 
Honourable James Chalmers McRuer, LL.D. 

ASSISTANTS TO THE COMMISSIONER 

David W. Mundell, Q.C, B.C.L. (Oxon.) 
Robert S. Mackay, Q.C, LL.M. (Columblv) 

CONSULTANTS TO THE COMMISSIONER 

J. A. CoRRY, B.C.L. (Oxon.), LL.M., LL.D., F.R.S.C. 

John D. Arnup, Q.C, LL.D. 



COUNSEL TO THE COMMISSION 

John W. Morden, LL.B. 
Stephen Borins, LL.B. 



CHIEF RESEARCH ASSISTANT 
Carol M. Creighton, LL.B. 



Summary of Contents 



VOLUME 1 

PAGE 

Letter of Transmittal v 

The Commission vii 

The Order in Council xi 

Acknowledgments xiii 

Proceedings of the Commission xvii 

PART I 

THE EXERCISE AND CONTROL OF STATU- 
TORY POWERS IN THE ADMINISTRATIVE 
PROCESS 13 

SECTION 1: Basic Concepts and Constitutional 

Principles 15 

SECTION 2: Statutory Powers: Administrative and 

Judicial Powers of Decision 67 

Subsection 1 : Nature and Scope of a Power of 

Decision 69 

Subsection 2: Structure and Organization of Tri- 
bunals Exercising Statutory Powers 
of Decision 103 

Subsection 3: Procedural Requirements for a 

Valid Decision 133 

Subsection 4: Appeals from Decisions Made in 

the Exercise of Statutory Powers .... 225 

Subsection 5: Control of the Courts of the Exer- 
cise of Statutory Powers: Judicial 
Review 237 

SECTION 3: Statutory Powers: Subordinate 

Legislative Powers 333 

SECTION 4: Statutory Powers: Powers of 

Investigation 383 

iii 



iv Summary of Contents 

VOLUME 2 

PART II 

PAGE 

ADMINISTRATION OF CIVIL AND CRIMINAL 
JUSTICE IN THE PROVINCE 499 

SECTION 1 : Provincial Courts Other Than The 

Supreme Court of Ontario 511 

SECTION 2: The Supreme Court of Ontario 649 

SECTION 3: Extra-Judicial Employment of Judicial 

Personnel 679 

SECTION 4: The Machinery of Justice and the 

Individual 723 

SECTION 5: Financial Responsibility for the Machin- 
ery of Justice 865 

SECTION 6: The Role of The Attorney General in 

Government 929 



VOLUME 3 

PART III 

SAFEGUARDS AGAINST UNJUSTIFIED EXER- 
CISE OF CERTAIN SPECIAL POWERS 957 

SECTION 1: Expropriation Procedure 959 

SECTION 2: Licensing 1093 

SECTION 3: Family Benefits Act 1966 1135 

SECTION 4: Self-Goveming Professions and 

Occupations 1159 

SECTION 5: Admission to and Detention in Mental 
Hospitals and Administration of Estates 
of Patients 1229 

CONSOLIDATED SUMMARY OF 
RECOMMENDATIONS 1255 



Table of Contents 



VOLUME 3 

PART III 

PAGE 

SAFEGUARDS AGAINST UNJUSTIFIED EXER- 
CISE OF CERTAIN SPECIAL POWERS 957 

SECTION 1 
EXPROPRIATION PROCEDURE 959 

Introduction 960 

Chapter 65 

THE POWER TO EXPROPRIATE 962 

Constitutional Limitations on the Power 963 

The Power to Expropriate is not to be Readily 

Implied 964 

Strict Compliance with Conditions Precedent to the 

Exercise of the Power 964 

A Presumption in Favour of Compensation 965 

The Expropriation Procedures Act 965 

Bodies and Persons Having Power to Expropriate 

Land 965 

Table A — Existing Expropriation Powers 966 

The Incidence of the PoW' er to Expropriate 974 

Table B — Expropriating Authorities in Ontario 975 

Guidelines Governins^ Conferment of the Power 980 

The Manner in which the Power to Expropriate is 

Expressed 982 

Purposes for which the Power is to be Exercised 

Should be Stated 984 

Chapter 66 
CONTROL OF THE POWER TO EXPROPRIATE 986 

Present Law 986 

Provisions Requiring Approval 986 



vi Contents 

PAGE 

Table C — Approval Authorities 987 

Grounds for Approval 990 

Owner's Right to a Hearing 990 

Defects in the Present Law 991 

Control of Expropriation by Approval 991 

Table D — Recommended Approving Authorities 994 

An Inquiry System 1001 

Right to a Hearing 1001 

The Inquiry Tribunal 1004 

Inquiry Procedure 1005 

Procedure Prior to Hearing 1006 

Procedure at the Hearing 1007 

The Report of the Inquiry Officer 1007 

Approval 1 008 

Judicial Review of Expropriation Proceedings 1009 

Chapter 67 

EXPROPRIATION PROCEEDINGS 1010 

Notice of Expropriation 1013 

Failure to Serve Notice 1016 

Negotiation Prior to Arbitration 1017 

Exchange of Information 1021 

Possession by the Expropriating Authority 1023 

Amount to be Offered 1027 

Chapter 68 

ARBITRATION 1030 

The Right to Arbitrate 1030 

The Arbitral Tribunal 1031 

The Official Arbitrator 1034 

The Senior Judge 1034 

The Ontario Municipal Board 1035 

Fees of Arbitrators 1037 

Independence of Arbitrator 1039 

Arbitral Functions of the Ontario Municipal Board 1040 

Boards of Arbitration under the Ontario Energy 

Board Act, 1964 1042 



Volume 3 vii 

PAGE 

Chapter 69 
TRIBUNAL TO FIX COMPENSATION 1045 

Chapter 70 

ARBITRATION PROCEDURE 1048 

Notice of Arbitration 1050 

Pleadings 1050 

Production and Discovery 1051 

Production 1052 

Discovery 1054 

Interlocutory Applications 1 055 

Chapter 71 

THE ARBITRATION HEARING 1057 

Who Should Begin 1057 

Taking a View 1058 

Evidence 1 058 

Onus of Proof 1058 

Number of Expert Witnesses 1059 

Stated Case 1060 

Written Reasons for Decisions 1 060 

Shorthand Reporters 1061 

Costs 1061 

Chapter 72 

APPEALS 1062 

Table E — Existing Provisions Relating to Practice 

and Procedure 1066 

Chapter 73 

ABANDONMENT OR DISPOSAL OF 

EXPROPRIATED LAND 1072 

Abandonment 1072 

Disposal of Land After Expropriation 1073 

Chapter 74 
EXPERT APPRAISERS 1079 



viii Contents 

PAGE 

SUMMARY OF RECOMMENDATIONS ON 

EXPROPRIATION PROCEDURE 1083 

SECTION 2 

LICENSING 1093 

Introduction 1094 

The Decision to License 1095 

Chapter 75 

LICENSING POWERS 1096 

The Form of the Power to License 1096 

The Personal and Public Interests Involved 1096 

The Facets of Licensing 1097 

Legislative Definition of the Purposes of Licensing ... 1098 

Definition of Standards 1100 

Standards in Municipal By-Laws 1101 

Legislative Standards to Guide Licensing Bodies ...1104 

Objective and Subjective Standards 1104 

Limitation on the Number of Licences to be Issued .1107 
The Transfer of Licences Having a Monopoly Value 1 1 10 
Structure and Organization of Licensing Tribunals ...1115 
Delegation of the Power to Issue and Renew Licences .1 1 16 

Enactment of Licensing Laws 1117 

Recommendations 1117 

Chapter 76 

SAFEGUARDS ON THE EXERCISE OF 

LICENSING POWERS 1120 

Procedural Safeguards 1120 

No Notice or Hearing Required where Initial 

Decision is to Grant a Licence 1120 

Notice of Grounds for Refusal to Grant a Licence 

and an Opportunity to be Heard 1120 

Notice in Revocation Proceedings 1121 

Opportunity to Achieve Compliance 1122 

Onus of Proof in Revocation Proceedings 1123 



Volume 3 ix 

PAGE 

Provincial Procedural Legislation 1124 

Municipal Procedural Legislation 1125 

Statutory Powers Procedure Act 1127 

Judicial Safeguards 1128 

J udicial Review 1128 

Right of Appeal 1128 

An Appeal from an Order Suspending a Licence 1 132 

Recommendations 1132 

SECTION 3 

FAMILY BENEFITS ACT, 1966 1135 

Introduction 1136 

The Legislation 1136 

Chapter 77 

ADMINISTRATIVE SCHEME OF THE FAMILY 

BENEFITS ACT 1139 

Allowances and Benefits 1140 

Nature and Scope of Powers Conferred 1141 

Powers of Investigation 1141 

Powers of Decision 1144 

Eligibility for and Amount of Assistance 1145 

Variation, Suspension and Cancellation of 

Assistance 1146 

Miscellaneous Powers of Decision 1148 

Chapter 78 

STRUCTURE AND PROCEDURES OF TRIBU- 
NALS UNDER THE FAMILY BENEFITS ACT 1150 

Structure and Organization of Tribunals 1150 

The Director 1150 

The Board of Review 1151 

Procedure 1152 

Decisions of the Director 1152 

Original Decisions Concerning the Eligibility 

of Applicants 1153 

Decision to Cancel, Suspend or Vary Assistance 1153 
The Nature of the Hearing 1153 



X Contents 

PAGE 

The Board of Review 1154 

An Itinerant Board of Review 1155 

Regional Boards of Review 1155 

Appeals to the Courts 1156 

Recommendations 1156 

SECTION 4 

SELF-GOVERNING PROFESSIONS AND 

OCCUPATIONS 1159 

Introduction 1160 

Chapter 79 
THE POWER OF SELF-GOVERNMENT 1162 

Chapter 80 

RULE-MAKING POWER 1167 

Summary 1170 

Chapter 81 

ADMISSION 1172 

Qualifications 1174 

Educational Qualifications 1 1 74 

Non-Educational Qualifications 1175 

Age 1175 

Good Moral Character 1175 

Citizenship 1176 

Admission of Applicants who Received Training 

Outside Ontario 1177 

Reciprocal Arrangements for Admission 1179 

Admission Procedure 1180 

Chapter 82 

DISCIPLINE 1181 

Disciplinary Powers 1181 

Composition of the Disciplinary Tribunal 1184 

Professional Misconduct 1 1 89 



Volume ? xi 

PAGE 

Chapter 83 

PROCEDURE BEFORE DISCIPLINARY BODIES 1193 

Notice of Hearing 1193 

Service of Notice 1193 

Failure to Attend Hearing 1194 

Right to Counsel 1194 

Sanctions Available 1195 

Costs 1196 

Public Hearings 1197 

Evidence 1198 

Standard of Proof 1199 

Right of Appeal from Decision on a Disciplinary 

Hearing 1202 

Effect of Suspension or Cancellation of Right to 

Practise Pending Appeal 1 202 

Application of Statutory Powers Procedure Act 1203 

Chapter 84 
CONTROL OF ANCILLARY OCCUPATIONS 1204 

Dental Technicians Act and Radiological Technicians 

Act 1204 

Dental Hygienists and Registered Nursing Assistants .1205 

Chapter 85 

MISCELLANEOUS PROVISIONS 1206 

Disposition of Fines Imposed for Breaches of Self- 

Governing Statutes 1 206 

Limitation Periods for Bringing Actions 1207 

Summary of Recommendations 1 209 

Appendix A — Composition of Governing Body 1212 

Appendix B — Rule-Making Power 1213 

Appendix C — Admission Requirements: Ontario 

Applicants 1218A 

Appendix D — Grounds for Disciplinary Action 1219 

Appendix E — Self-Governing Bodies: Comparative 
Analysis of Procedure in Disciplinary Matters 1228 



xii Contents 

PAGE 

SECTION 5 

ADMISSION TO AND DETENTION IN MENTAL 
HOSPITALS AND ADMINISTRATION OF 
ESTATES OF PATIENTS 1229 

Introduction 1230 

Chapter 86 

DETENTION OF THE MENTALLY ILL 1231 

Admission and Detention Pursuant to Provincial Law .1231 

Hospitalization 1232 

The Right to Vote 1235 

Criminal Law and Mental Disorder 1236 

Delegation of Legislative Power 1237 

Chapter 87 

ADMINISTRATION OF ESTATES OF THE 

MENTALLY ILL 1239 

Patients in Psychiatric Facilities 1239 

Effect of Trusteeship 1240 

Administration of Estates by the Public Trustee 1242 

Powers of Investigation 1 246 

A Guardian of the Interests of Owners of Estates 1247 

An Annual Report 1247 

Personal Liability of the Public Trustee 1248 

Limitation of Actions 1 249 

Mental Incompetency Proceedings 1251 

Recommendations 1 252 

CONSOLIDATED SUMMARY OF 
RECOMMENDATIONS 1255 



PART III 

SAFEGUARDS AGAINST UNJUSTIFIED 

EXERCISE OF CERTAIN SPECIAL 

POWERS 



957 



Section 1 



EXPROPRIATION PROCEDURE 



959 



INTRODUCTION 



We have said that the mere existence of the power to 
expropriate property is in itself an encroachment on the rights 
of an individual in the sense that the security of his rights to 
property has been diminished. 

There is general agreement that the existence and the 
exercise of this power in actual cases constitutes an invasion of 
civil rights in our current legal system. Notwithstanding this, 
the power conferred and exercised in proper cases and accord- 
ing to proper principles is necessary in the public interest. 
This was emphasized repeatedly in many submissions received 
by this Commission. The great weight of criticism was not 
directed against the principle of expropriation as an instru- 
ment of government, but against the promiscuous manner in 
which the power is conferred and the methods by which it 
may be, and often is, exercised. 

Since expropriation is one of the necessary functions of 
modern government, our task is to recommend proper safe- 
guards which will afford adequate and feasible protection for 
the rights of the individual, consistent with the demands of the 
public interest. 

The subject may be conveniently dealt with under the 
following headings: 



(1 

(2 
(3 
(4 
(5 
(6 
(7 
(8 
(9 
(10 



The Power to Expropriate; 

Control of the Power to Expropriate; 

Expropriation Proceedings; 

Arbitration; 

Tribunal to Fix Compensation; 

Arbitration Procedure; 

The Arbitration Hearing; 

Appeals; 

Abandonment or Disposal of Expropriated Land; 

Expert Appraisers. 

960 



Inlroducliun 'J61 

The basis of compensation for land expropriaied and for 
damages suffered from injinious alfection is a subject that has 
been referred to the Ontario Law Reform Connnission by the 
Attorney General, inider the provisions of the Ontario Law 
Reform Commission Act, and it has been dealt with by that 
body.^ We shall not deal with the basis of compensation in this 
Report. 

Throughout this Section, where we refer to the "owner", 
the word is used as it is comprehensively defined in the Expro- 
priation Procedures Act.- It includes all those persons entitled 
to an interest in land, limited or otherwise. 

In recent years the subject of expropriation has received 
critical examination by special committees and commissions 
formed for that purpose in other jurisdictions, both in North 
America and elsewhere. In Ontario a Select Committee of 
the Legislature on Land Expropriation reported in February 
of 1962. This report formed the foundation for the Expro- 
priation Procedures Act, w^hich came into force on January 
1, 1964. We are obliged to examine the law of expropriation 
from a different point of view. 

Our Terms of Reference are such that we conceive it 
our duty to examine the law of expropriation procedure par- 
ticularly from the point of view of its impact on the rights of 
the individual owner of land. 



^See Report of the Ontario Law Reform Commission, Report on The Basis 
for Compensation on Expropriation (September, 1967). 
'Ont. 1962-63, c. 43, s. 1 (f). 



CHAPTER 65 

The Power to Expropriate 



Ihe power to expropriate, as commonly understood 
in Canada, is a statutoi^y power to take land without the con- 
sent of the owner. ^ This is in brief the definition of expropria- 
tion in the Expropriation Procedures Act- and is the sense in 
which we shall refer to the power. In the United States it is 
called the power of "eminent domain", and in England it is 
called the power of "compulsory purchase". It has recently 
been suggested that this latter definition is inept "for it is not 
the purchase which is compulsory in the normal case, but the 
sale. . . ."^ 

In Ontario, as in other Canadian provinces, it is clear 
that the power of the Province or any body deriving its powder 
from the Legislature to expropriate must be conferred in a 
statute enacted by the Legislature. This is in accord with our 
constitutional doctrine of the supremacy of Parliament. It is 
true that, even to the present day, there survives the preroga- 
tive right of the Sovereign "for the purpose of the defence of 
the realm in times of danger ... to take any man's property".^ 
This prerogative cannot be exercised by the Crown in the 
right of the province. Under the British North America Act^ 
responsibility for defence resides with the Parliament of 
Canada, and the distribution of executive power follows that 

^When we use the term "land" we use it as defined in the Expropriation 
Procedures Act, Ont. 1962-63, c. 43, s. 1(e). It includes any interest in land. 
"Ont. 1962-63, c. 43, s. 1(b) (e). 

^Garner, Compulsory Purchase Procedure, 1 New Law Jour. 8, 8 (1965). 
M.G. V. DeKeyser's Royal Hotel, [1920] A.C. 508, 524. 
'B.N.A. Act, s. 91, para. 7. 

962 



Chapter 65 963 

of legislative power.*' The prerogative can be supplanted by 
statute, as was shown in the judgnicnt of the House of Lords 
in the DeKeyser case." 

CONSTITUTIONAL LIMITATIONS ON THE POWER 

There are no constitutional limitations upon the powers 
of the legislatiues of the Canadian provinces, acting within 
section 92 of the British North America Act, to create and 
confer the power of expropriation upon any body or person 
they see fit. All private property is potentially vulnerable to 
being taken against the wdll of the owner by some authority 
which has recei\ed the requisite legal power. There is no 
basic constitutional principle that obliges expropriating 
authorities to pay compensation, "just" or otherwise, upon 
the taking of property. The law w^as colourfully stated by 
Mr. Justice Riddell: "The prohibition 'thou shalt not steal' 
has no legal force tipon the sovereign body. And there would 
be no necessity for compensation to be given. We have no 
such restriction upon the power of the legislature as is found 
in some States".^ 

This statement of the law may be contrasted with the law 
of the United States where the Fifth Amendment to the Con- 
stitution provides, inter alia, that private property shall not 
be taken for public use without "just compensation". The 
Fourteenth Amendment, wath regard to the states, provides 
that "... Nor shall any state deprive any person of . . . 
property, without due process of law". 

The Australian Constitution^ provides that the central 
government may expropriate property only upon "just 
terms". Such a limitation is not imposed on the legislatures 
of the states. 

The Civil Code of the Province of Quebec^° provides 
that: "No one can be compelled to give up his property, 

^Bonanza Creek Gold Mining Co. Ltd. v. The King, [1916] 1 A.C. 566. 

'In his book, The Law of Expropriation (2nd ed., 1963) at 65, Mr. Justice 

Challies gives convincing reasons why this prerogative is also not open to 

the Dominion government to exercise. 
"Florence Mining Co. v. Cobalt Lake Mining Co. (1908), 18 O.L.R. 275, 279, 

affirmed by the Privy Council in 1910. See (1918), 43 O.L.R. 474. 
"See s. 51. 
"Civil Code, Article 407 (Quebec 1931). 



964 The Power to Expropriate 

except for public utility and in consideration of a just indem- 
nity previously paid". This expresses, in legal form, the basic 
principle governing expropriation in that province. However, 
it is not a constitutional limitation and is subject to alteration 
by the Legislature.^^ 

Although there are no constitutional restrictions on the 
power of the Legislature of Ontario to authorize the taking of 
land without compensation, it has been the invariable practice 
to provide for payment of compensation wherever expropria- 
tion has been authorized. The right of an owner whose prop- 
erty has been expropriated to be compensated for its taking 
is so basic that it should be secured in the Constitution.^^ The 
right to compensation has become what might be called a 
convention of our constitutional thinking. 

Allied to this convention are three canons of interpreta- 
tion of statutes which have been developed by the courts. 

THE POWER TO EXPROPRIATE IS NOT TO BE 
READILY IMPLIED 

"The right to take private property against the will of the 
owner is so serious an infringement of the rights of property 
that a strict construction will be placed upon it, and the 
authority must be found in no doubtful terms within the 
bounds of the statute— that is, upon a reasonable construction, 
either expressly or by necessary implication."^^ 

The same principle was restated by Chief Justice Latch- 
ford: "The power of expropriation is . . . such an interference 
with the right of property that it should not readily be 
implied. "^^ 

STRICT COMPLIANCE WITH CONDITIONS 
PRECEDENT TO THE EXERCISE OF THE POWER 

It has been restated from time to time that expropria- 
tion statutes will be construed to require the strict fulfil- 
ment of all conditions precedent to an expropriation. If the 
expropriating authority does not strictly comply ^\'ith the pre- 

"Challies, The Law of Expropriation (2nd ed., 1963), 7. 
^^This will be discussed in Report Number 2. 

^^Harding v. Township of Cardiff (1881), 29 Gr. 308, 309 per Proudfoot, V.C. 
^^Hydro-Electric Power Commission of Ontario x'. County of Grey (1924), 55 
O.L.R. 339, 341. 



Chapter 63 965 

expropriation lornialitics laid down in the governing statute, 
tlie owner not only retains title to the property in (juestion 
but the right to recover damages for trespass ii it has been 
entered without the owner's consent.'^ 

A PRESUMPTION IN FAVOUR OF COMPENSATION 

The third canon ol interpretation of expropriation stat- 
utes is that there is a presumption against expropriation with- 
out compensation. This principle has been stated by the 
Judicial Committee of the Privy Council as follows: 

"Under these circumstances their Lordships think that the 
construction ought to be in favour of the subject, in the sense 
that general or ambiguous words should not be used to take 
away legitimate and valuable rights from the subject without 
compensation, if they are reasonably capable of being con- 
strued so as to avoid such a result consistently with the 
general purpose of the transaction. . . ."^^ 

THE EXPROPRIATION PROCEDURES ACT 

The Expropriation Procedures Act applies "where land 
is expropriated or is injuriously affected by an expropriating 
authority in the exercise of its statutory powers ".^" " 'Expro- 
priating authority' means the Crown or any person empowered 
to acquire land by expropriation. . . ."^^ 

All expropriations in this Province, except those coming 
under federal authority, are governed by this statute. Broadly 
speaking, it establishes expropriation procedures, including 
the assessment of compensation and appeals from awards to 
the Court of Appeal. For the source of statutory power to 
expropriate land one must look elsewhere than in the Expro- 
priation Procedures Act. 

BODIES AND PERSONS HAVING POWER TO 
EXPROPRIATE LAND 

There are thirty-five Ontario statutes which confer powers 
of expropriation on bodies, persons or classes of persons. We 

^^For illustration see James v. Hydro Electric Power Commission of Ontario, 

[1953] O.R. 349, affirmed [1953] O.R. 728. 
^"Minister of Raihvays v. Simmer etc. Mines Ltd., [1918] A.C. 591, 603. 
"Ont. 1962-63, c. 43, s. 2 (1). 
^nhid., s. 1 (c). 



966 



The Power to Expropriate 



set out below in tabular form (Table A) the identity of those 
having powers of expropriation, the statutory source of the 
power, the purpose for which the power is conferred, if stated, 
and the approving body where approval is required, by some 
body other than the expropriating authority, before a decision 
to expropriate is effective. 

Table A 
EXISTING EXPROPRIATION POWERS 



Expropriating 
Authority 



Statute 



Authorized 
Purpose 



Approval, if Required 



An agricultural 
society 



Agricultural 
Societies 
Act, S.21 



For fairs and exhibi- 
tions 



Subject to the approval of 
the Lieutenant Governor 
in Council 



The Ontario 
Cancer 
Treatment 
and Research 
Foundation 



Cancer Act, 
s.13 



Any land and build- 
ings that are deemed 
suitable for the pur- 
poses of the Founda- 
tion 



Subject to the approval of 
the Lieutenant Governor 
in Council 



Owner of 
a cemetery 
(who may or 
may not be 
a municipal 
corporation) 



Cemeteries 
Act, S.40 



Adjacent land for 
enlargement of 
cemetery 



Subject to the opinion of 
municipal council, and on 
the certificate of Depart- 
ment of Public Health that 
in its opinion the proposed 
enlargement is for the 
public advantage and con- 
venience and ought to be 
permitted, the owner 
should have power to ex- 
propriate for the stated 
purpose 



A local 


Cemeteries 


municipality 


Act, s.61 


The Minister 


Commuter 


(which means 


Services 


the member 


Act, 1965, 


of the 


s.4 


executive 




council 




to whom the 




administration 




of this Act 




is assigned by 




the Lieutenant 




Governor in 




Council) 





For establishment 
of a cemetery or 
expropriating an 
existing cemetery 

For the establish- 
ment and operation, 
or either of them, 
of any commuter 
service that is or 
may be provided by 
agreement under s.3 
of the Act 



With the approval of the 
Lieutenant Governor in 
Council 



Subject to the approval of 
the Lieutenant Governor 
in Council. Comment: 
s. 2(2) provides that the 
Minister may delegate any 
of his powers under this 
Act to any one or more 
crown employees as de- 
fined in the Public Service 
Act, 1961-62 



Chapter 63 967 



Table X— (Continued) 



Expropriating 
Authority 



Statute 



Authorized 
Purpose 



Approval, ij Required 



A conservation 


Conservation 


For the purposes of 


authority 


.\uthoritics 


carrying out a 




.•\ct, s. 17(c) 


scheme undertaken 
by the authority for 
the purposes of con- 
servation, restora- 
tion and develop- 
ment of natural 
resources, other 
than gas, oil, coal 
and minerals, and 
the control of water 
in order to prevent 
floods and pollution 
or for any such 
purposes. Sees. 1(1) 


Minister 


Game and 


For the purposes of 


of Public 


Fish Act, 


management, per- 


Works 


1961-62, 


petuation and re- 




S.6 


habilitation of the 
wild life resources 
in Ontario 


Minister 


Highway 


For the purposes of 


of Highways 


Improve- 


Part I or for making 




ment Act, 


compensation in 




s.7(l) 


whole or in part to 
any person under 
this Part 


A county 


Highway 


For the purpose of 




Improve- 


opening up, widen- 




ment Act, 


ing, improving, pro- 




s.66(l) 


tecting from erosion 
altering or diverting 
a county road 


Minister 


Housing 


For the purposes of 


of Economics 


Development 


a housing project 


and Development 


Act, s.7 


under s.6 


A company 


Lakes and 


For the purpose of 


incorporated 


Rivers 


its undertaking 


pursuant 


Improve- 


(constructing a 


to Part IV 


ment Act, 


work to facilitate 


of the Lakes 


S.46 


the floating of 


and Rivers 




timber) 


Improvement Act 






The 


Lakes and 


For the public ser- 


Government 


Rivers 


vice 


of Ontario 


Improve- 
ment 
Act, s.52 





A judge of the county or 
district court (Expropria- 
tion Procedures .Xct, s.la, 
enacted bv Ont. 1966, 
C.53, s.l) 



Where the Lieutenant 
Governor in Council deems 
it expedient for the public 
service, he may dissolve a 
company formed under 
Part IV of the Act and 
declare its works to be 
public works upon pay- 
ment to it of the then 
actual value of the works 
to be determined in ac- 
cordance with The Public 
Works Act 



968 The Power to Expropriate 

Table A— (Continued) 



Expropriating 
Authority 



A person 



Municipal 
corporations 

Local 
municipalities 

AU 
municipalities 



Local 
municipalities 



Municipality 
of Metropolitan 
Toronto 



Municipality of 

Metropolitan 

Toronto 



Statute 



Lakes and 
Rivers 
Improve- 
ment Act, 
ss.87-90, 96 



Municipal 
Act, S.333 

Municipal 
Act, S.338 

Municipal 
Act, S.377, 
para. 63 

Municipal 
Act, 

s.379(l), 
para. 49 



Municipality 
of Metro- 
politan 
Toronto 
Act, s.93 

Municipality 
of Metro- 
politan 
Toronto 
Act, s. 116 



Authorized 
Purpose 



Approval, if Required 



For the completion, 
improvement or 
maintenance of a 
water privilege and 
works in connection 
therewith 



For the purposes of 
the corporation 

For "deferred" 
widening, etc. of a 
highway 

For establishing and 
laying out public 
parks, squares, 
avenues, etc. 

For selling or leas- 
ing the land ex- 
propriated for the 
purpose of sites for 
the establishment 
and carrying on of 
industrial opera- 
tions and uses in- 
cidental thereto 

For establishing, lay- 
ing out, opening up, 
widening, improv- 
ing, etc., a metro- 
politan road 

This section pro- 
vides that the power 
of the Metropolitan 
Council to acquire 
land for the pur- 
poses of the Metro- 
politan Corporation 
includes the power 
to acquire land for 
the purposes of the 
Toronto Transit 
Commission 



The Metro- 


Municipality 


For the erection of 


politan 


of Metro- 


a school for pupils 


School 


politan 


from more than one 


Board 


Toronto 


public school divis- 




Act, s. 145a 


ion or high school 
district in Metro- 
politan Area 



On the authority of a 
county or district court 
judge if the judge deems 
the property to be taken 
necessary for the comple- 
tion, improvement or 
maintenance of the water 
privilege and works in 
connection therewith, s.87 
(2), and if he is of the 
opinion that the acquisi- 
tion is in the public 
interest and is proper and 
just under all the circum- 
stances of the case, s. 90 



Chapter 65 969 
Table A— (Continued) 



Expropriating 
Authority 


Statute 


Authorized 
Purpose 


The Niagara 
Parks 


Niagara 
Parks Act, 


No express purpose 
is stated. Presum- 


Commission 


s. 6 


ably the expropria- 
tion would have to 
be for the purposes 
of the Commission 
which are set forth 
in S.3 



Approval, if Required 



Subject to the approval of 
the Lieutenant Governor 
in Council 



A person 



Ontario 

Energy 
Board Act, 
1964, S.21 



For the purpose of 
injecting gas into, 
storing gas in and 
removing gas from 
land in a gas storage 
area 



Subject to authorization 
by the Ontario Energy 
Board 



Any 
person 
who has 
leave to 
construct 
a transmission 
line, or a 
production 
line, distribu- 
tion line or 
station 



Ontario 
Energy 
Board Act, 
1964, s.40 



For the purpose of 
the line or station 



Subject to the authoriza- 
tion of the Ontario Energy 
Board 



The Ontario 
Northland 
Transportation 
Commission 



Ontario 

Northland 
Transporta- 
tion 

Commission 
Act, S.24 



In respect of the 
railway and works 



The Ontario 
Northland 
Transportation 
Commission 



Ontario 
Telephone 
Development 
Corporation 



Ontario 
Northland 
Transporta- 
tion 

Commission 
Act, s.29(2) 

Ontario 
Telephone 
Development 
Corporation 
Act, S.4 



For acquiring town 
sites 



No express purpose 
is stated in the sub- 
section conferring 
the power. Presum- 
ably the power is for 
the Corporation's 
object, which is the 
improvement of 
telephone systems in 
Ontario 



Subject to the consent of 
the Ontario Telephone 
Service Commission 



Ontario 
Telephone 
Development 
Corporation 



Ontario 
Telephone 
Development 
Corporation 
Act, s. 6 



No express purpose 
is stated 



970 The Power to Expropriate 

Table A— (Continued) 



Expropriating 
Authority 

Ontario 
Water 
Resources 
Commission 

Any 
municipality 



A municipality 



Hydro-Electric 

Power 

Commission 



Statute 



Ontario 
Water 
Resources 
Commission 
Act, s.19 

Ontario 
Water 
Resources 
Commission 
Act, S.32 



Planning 
Act, S.20 
and S.23 

Power 
Commission 
Act, S.24 



Hydro-Electric 


Power 


Power 


Commission 


Commission 


Act, S.38 


A municipal 


Power 


corporation 


Commission 


that has 


Act, S.66 


entered into 




a contract for 




the supply of 




power by the 




Commission 




Hydro-Electric 


Power 


Power 


Control 


Commission 


Act, S.5 



Authorized 
Purpose 



Approval, if Required 



For the Commis- 
sion's purposes 



For redevelopment 



The land and other 
objects to be expro- 
priated must be 
capable of being 
used or made useful 
for generating, 
transforming, trans- 
mitting, distributing 
or selling power 

For office, service or 
other buildings 

For the purpose of 
placing overhead or 
underground wires 



For the generation, 
transformation, 
transmission, distri- 
bution or supply of 
power 



Comment: s.31 of this Act 
enables the Commission to 
approve of the establish- 
ment of any sewage works, 
or the extension of or any 
change in any existing 
sewage works, s.32 requires 
the Commission to hold a 
public hearing before 
approving under s.31 of the 
extension of sewage works 
into another municipality 
or other municipalities or 
territory without municipal 
organization. s.32(3) pro- 
vides that where the 
Commission has given 
approval under s.31 to an 
extension under ss.l, the 
municipality undertaking 
the extension may enter 
upon, take and use, such 
lands in such other munici- 
pality as may be necessary 

With the approval of the 
Minister of Municipal 
Affairs 

On the authority of the 
Lieutenant Governor in 
Council 



Chapter 63 971 



Table A— (Continued) 



Expropriating 
Authority 



Statute 



Authorized 
Purpose 



Approval, if Required 



A hospital 

or a corporation 

incorporated for 

the purpose of 

establishing 

a hospital 


Public 
Hospitals 
Act, S.7 


For any of its pur- 
poses 


A public 

library 

board 


Public 
Libraries 
Act, 1966, S.16 


For library and 
branch library pur- 
poses 


A board 
of parks 
management 


Public 
Parks 
Act, S.15 


For parks, avenues, 
boulevards and 
drives and ap- 
proaches thereto or 
for purposes of the 
Board, including the 
supply of water for 
artificial lakes, foun- 
tains and other 
purposes 


A board 
of parks 
management 


Public 
Parks 
Act, S.17 


For acquiring land 
required for its pur- 
poses 


A local 
municipality 


Public 
Utilities 
Act, S.2 


For water works 
purposes or for pro- 
tecting the water 



A local 
municipality 



All 
municipalities 



Public 

Utilities 
Act, S.4 



Public 
Utilities 
Act, S.20 



works or preserving 
the purity of the 
water supply 

For the making and 
maintaining of the 
water works or for 
the opening up of 
new streets required 
for the same or for 
the protection of the 
works or for preserv- 
ing the purity of the 
water supply or for 
taking up, remov- 
ing, altering or re- 
pairing pipes, and 
for distributing 
water to the inhabi- 
tants of the munici- 
pality, or for the 
uses of the corpora- 
tion or of the owners 
or occupants of the 
land through or near 
which pipes may 
pass 

For its works or any 
extension thereof 



A judge of the county or 
district court. (Expropria- 
tion Procedures Act, s.la, 
enacted by Ont. 1966, 
C.53, s.l) 



With the consent of all 
parties interested 



972 The Power to Expropriate 



Table A— (Continued) 



Expropriating 
Authority 



Statute 



Authorized 
Purpose 



Approval, if Required 



A Public 


Public 


Utility 


Utilities 


Commission 


Act, S.41 



A company 
incorporated 
for the purpose 
of supplying 
any public 
utility 



Public 
Utilities 
Act, S.58 



An urban 


Public 


municipality 


Utilities 
Act, S.62 


A public 


Public 


service 


Utilities 


commission 


Act, S.64 


of a 




municipality or 
a public 
utilities 




commission 




Minister 


Public 


of 


Works 


Public 


Act, S.13 


Works 




Minister 


Public 


of Public 


Works 


Works 


Act, S.15 



This section confers 
on public utility 
commissions, inter 
alia, the powers 
which are by the 
Act conferred on 
municipal corpora- 
tions. See, therefore, 
the three immedi- 
ately preceding ex- 
propiration powers 
This section confers 
on such a company, 
inter alia, the powers 
which are by the 
Act conferred on 
municipal corpora- 
tions 



For the purpose of 
supplying within the 
municipality any 
public utility 



For the public pur- 
poses of Ontario or 
the use or purposes 
of any Department 
of the Government 
thereof 

For acquiring a 
right-of-way be- 
tween a place where 
any gravel, stone, 
earth, sand or water 
is taken and a public 
work 



This power is not opera- 
tive unless it is conferred 
on the company by its 
letters patent or supple- 
mentary letters patent and 
the municipality has passed 
a by-law with the assent of 
the municipal electors 
where such assent is re- 
quired by the Municipal 
Franchises Act authorizing 
the company to exercise 
its powers. Also the powers 
of expropriation shall be 
exercised under and in 
accordance with the pro- 
visions of the Railways 
Act, R.S.O. 1950, c. 331. 
This latter Act involves 
the Ontario Municipal 
Board sanctioning the ex- 
propriation 

With the assent of electors 
entitled to vote on money 
by-laws 

This section provides that 
the provisions of s.35 and 
ss. 38 to 48 apply mutatis 
mutandis to the commis- 
sion. s.41 is therefore in- 
cluded. See reference to 
it above 



Chapter 65 973 



Table A— (Continued) 



Expropriating 
Authority 


Statute 


Authorized 
Purpose 


A Commission 


Public 




appointed 
by or 


Works 
Act, s.48 




under the 






authority 
of the 






Legislature 







Approval, ij Required 



Comment: This section 
provides in part that the 
like powers and duties, as 
are by this Act imposed or 
conferred upon the 
Minister, may be exer- 
cised and shall be per- 
formed by such commis- 
sion in respect of matters 
entrusted to it, and in the 
application of this Act 
thereto, where the word 
"Minister" and the word 
"Department" occur, they 
mean such commission 



Ontario 


Research 


Research 


Foundation 


Foundation 


Act, 1944, 




s. 11(c) 


The Board 


Ryerson 


of Governors 


Polytechnical 


of the 


Institute 


Ryerson 


Act, 1962- 


Polytechnical 


63, s.7(n) 


Institute 




The board 


The 


of trustees, 


Sanatoria 


directors. 


for 


commission 


Consump- 


or other 


tives 


governing 


Act, s.22 


body or 




authority of a 




sanatorium 




A public school 


Schools 


board, separate 


Administra- 


school board, 


tion Act, S.65 


continuation 




school board, 




board of 




education, 




high school 




board or 




advisory 




committee 




appointed under 




Part III of the 




Secondary 




Schools and 




Boards of 




Education Act 





Any real property 
and any estate or 
interest therein 
deemed necessary 
for the Foundation's 
purposes 

Such land as the 
Board may deem 
necessary for the 
Institute 



For the purpose of 
the sanatorium 



For a school site or 
for the enlargement 
of a school site 



With the prior approval of 
the Lieutenant Governor 
in Council 



With the consent of a 
muncipal corporation, if 
owner 



With the approval of the 
Lieutenant Governor in 
Council. Also, if the board 
of a sanatorium has been 
established by a municipal 
corporation, it shall not 
exercise any such power of 
expropriation without the 
consent first obtained of 
the council of such 
corporation 

The exercise of this power 
is subject to the provisions 
of the Public Schools Act, 
s.lO and the Separate 
Schools Act, S.33, as to the 
selection of a site by a 
rural school board. These 
sections provide for some 
participation by the rate- 
payers of the school sec- 
tion, or supporters of the 
school, as the case may be, 
in the decision as to the 



974 The Poiuer to Expropriate 



Table X— (Continued) 



Expropriating 
Authority 



Statute 



Authorized 
Purpose 



Approval, if Required 



St. Clair 
Parkway 
Commission 

St. Lawrence 

Parks 

Commission 

A continuation 
school board 



Ontario 
Stock Yards 
Board 

A municipality 



A municipality 
that has 
established 
a municipal 
telephone 
system under 
this Act or a 
predecessor 
of the Act 

All of the 
universities 
set forth in 
s.l(l) of the Act, 
being 15 
universities 



St. Clair 
Parkway 
Commission 
Act, 1966, S.4 

St. Lawrence 
Parks 

Commission 
Act, S.7 

Secondary 
Schools and 
Boards of 
Education 
Act, s.7 

Stock Yards 
Act, s.5 



Telephone 
Act, s.28 



Telephone 
Act, s.5 4 



University 
Expropria- 
tion Powers 
Act, 1965, 
s.2 



Minister of Lands Wilderness 
and Forests Areas Act, s.4 



No purpose stated. 
The purposes of the 
Commission are set 
forth in s.3 

No purpose is stated. 
The purposes of the 
Commission are set 
forth in s.6 

For a school site 



For its undertakings 



For the purpose of 
establishing or 
carrying on a tele- 
phone system as a 
public utility 

For the establish- 
ment or extension of 
a telephone system 
or to avoid duplica- 
tion of systems or 
any part thereof 



As they deem neces- 
sary for the purposes 
of the university or 
of any university or 
college federated or 
affiliated with the 
university 



For the purposes 
of the Act 



With the approval of the 
Lieutenant Governor in 
Council 

Subject to the approval of 
the Lieutenant Governor 
in Council 

See Schools Administra- 
tion Act, S.65, supra 



Subject to the approval of 
the Lieutenant Governor 
in Council 

Comment: The exercise of 
this power is subject to 
ss. 35-86 



Subject to the consent of 
the Ontario Telephone 
Service Commission and 
the approval of the Ontario 
Municipal Board 



Subject to the consent of a 
municipality or metro- 
politan municipality, if it 
is the owner of the land 
involved or has an interest 
therein ; and to the approval 
of a judge of the county or 
district court. (Expropria- 
tion Procedures Act, s.la, 
enacted by Ont. 1966, c.53, 
s.l) 



THE INCIDENCE OF THE POWER 
TO EXPROPRIATE 

The above table shows that there are sixty separate 
statutory provisions which confer the power of expropriation. 
There are twenty-six different types of expropriating authori- 
ties, ranging from Ministers of the Crown down through 
provincial statutory bodies such as the Hydro-Electric Power 



Chapter 65 975 

Commission and the Ontario Water Resources Commission, 
municipal bodies of various types, universities, consen'ation 
authorities and loimdations, to private persons. The types 
of expropriating authorities consist of many separate bodies, 
such as agricultural societies, conservation authorities, munici- 
palities, school boards, hospitals and public library boards. 
Table B set out below shows that there are over eight thousand 
expropriating authorities in Ontario.^® In addition, some 
authorities have powers of expropriation under more than one 
statute. For example, municipalities, of various types, derive 
such powers not only from the Municipal Act,^*^ but also from 
the Cemeteries Act,-^ the Planning Act,^^ the Power Commis- 
sion Act,-^ the Public Utilities Act,^^ and the Telephone Act.^'^ 
The foregoing presents only an outline of the incidence of the 
powers of expropriation in Ontario. 

'*Note comment at foot of the Table as to total, p. 979 infra. 

^''R.S.O. 19G0, c. 2^19, ss. ."5.83, 3.38, 377, 379. 

='R.S.O. 1960, c. 47, s. 61. 

=-R.S.O. I960, c. 296, s. 20. 

-^R.S.O. I960, c. 300, s. 66. 

-*R.S.O. 1960, c. 335, ss. 2, 4, 20, 41, 62. 

^-'^R.S.O. 1960, c. 394, ss. 28, 54. 

Table B 
EXPROPRIATING AUTHORITIES IN ONTARIO 

Column 1 —Shows the expropriating authority. 

Column 2 — Shows the statute conferring the power of expropriation. 

Column 3 — Shows the total number of expropriating authorities of the type 
indicated. 

Column 4 — The figures listed in tlnis column are a duplication of those pre- 
viously listed in column 3 and are not included in die main total. 



1 
Expropriating Authority 



2 
Statute 



3 4 5 

Number Number Comment 



An agricultural society 



Agricultural Societies Act, 241 
S.21 



The Ontario Cancer Cancer Act, s.l3 

Treatment and Research 

Foundation 

The owner of a cemetery Cemeteries Act, s.40 



3238 



Not including 
375 munici- 
pally owned 
cemeteries 



976 The Power to Expropriate 



Table ^—(Continued) 



Expropriating Authority 



2 

Statute 



3 4 5 

Number Number Comment 



A local municipality: 
Cities and Metropolitan 
Toronto 




34 


Towns 




143 


Separated Towns 

Villages 

Townships 




6 

158 
571 


A Minister of the Crown 
to be designated 


Commuter Services Act, 
1965, S.4 


1 



A Conservation authority 
Minister of Public Works 
Minister of Highways 
A countv 



Minister of Economics 
and Development 

Companies incorporated 
pursuant to Part IV of 
the Lakes and Rivers 
Improvement Act 



Conservation Authorities 36 
Act, s. 17(c) 

Game and Fish Act, 1 

1961-62, s.6 

Highway Improvement 1 

Act, s.7(l) 

Highwav Improvement 37 

Act, 5.66(1) 

Housing Development 1 

Act, s.7 

Lakes and Rivers 7 

Improvement Act, s.46 



The Government of 


Lakes and Rivers 


1 




Ontario 


Improvement Act, s.52 






Persons with water 


Lakes and Rivers 






privileges under ss. 89-90 
of the Lakes and Rivers 


Improvement Act, 
ss. 87-90, 96 






Improvement Act: 
Private power develop- 
ments 




17 




Mill sites 




375 




Municipal corporations: 
Local municipalities 






918 


Counties 






37 


Local Municipalities 


Municipal Act, s.338 




1 


All Municipalities 


Municipal Act, s.377, 
para. 63 




955 



The Municipality of 
Metropolitan Toronto 

The Municipality of 
Metropolitan Toronto 



Municipality of Metro- 
politan Toronto Act, s.93 

Municipality of Metro- 
politan Toronto Act, s.ll6 



Chapter 65 977 



Table ^—(Continued) 



1 

Expropriating Authority 


2 

Statute 


3 
Xumber 


4 5 
Number Comment 


The Metropolitan School 
Board 


Mimicipality of Metro- 
politan Toronto Act, 
s.l45a 


1 






The Niagara Parks 
Commission 


Niagara Parks Act, s.6 


1 






A person 


Ontario Energy Board 
Act, 1964, S.21 


2 




Persons 
already 
authorized 


Any person who has leave 
to construct a transmission 
line, or a production line, 


Ontario Energy Board 

Act, 1964, S.40 


5 




Persons 
already 
authorized 



distribution line or station 

The Ontario Northland 

Transportation 

Commission 

The Ontario Northland 

Transportation 

Commission 

The Ontario Telephone 
Development Corporation 



The Ontario Telephone 
Development Corporation 



The Ontario Water 
Resources Commission 



Ontario Northland 
Transportation 
Commission Act, s.24 

Ontario Northland 
Transportation Com- 
mission Act, s.29(2) 

Ontario Telephone 
Development Corporation 
Act, s.4 

Ontario Telephone 
Development Corporation 
Act, s.6 

Ontario Water Resources 
Commission Act, s.l9 



Any municipality 


Ontario Water Resources 
Commission Act, s.26 


955 


Any municipality 


Planning Act, s.20 and s.23 


955 


The Hydro-Electric 
Pov^'er Commission 


Power Commission Act, 1 
s.24 




The Hydro-Electric 
Power Commission 


Power Commission Act, 
S.38 


1 


A municipal corporation 
that has entered into a 
contract for the supply of 
power by the Commission 


Power Commission Act, 
S.66 


1 


The Hydro-Electric 
Power Commission 


Power Control Act, s.5 


1 



A (public) hospital or a 
corporation incorporated 
for the purpose of 
establishing a hospital 

A public library board 



Public Hospitals Act, s.7 220 



Public Libraries Act, 
1966, S.16 



299 



978 The Power to Expropriate 

Table ^—(Continued) 



1 

Expropriating Authority 


2 
Statute 


3 
Number 


4 5 
Number Comment 


Boards of Park 


Public Parks Act, s.l5 


115 






Management 










Boards of Park 
Management 


Public Parks Act, s.l7 




115 




A local municipality 


Public Utilities Act, s.2 




918 




A local municipality 


Public Utilities Act, s.4 




918 




All municipalities 


Public Utilities Act, s.20 




955 




A public utilities 
commission 


Public Utilities Act, s.41 






See s.64 of 
the Public 
Utilities Act 


A company incorporated 
for the purpose of supply- 


Public Utilities Act, s.58 






(No inform- 
ation) 



ing any public utility and 
having expropriation 
power conferred upon it 
in its letters patent 

An urban municipality 



Public Utilities Act, s.62 



A public service commis- 


Public Utilities Act, s.64 




sion of a municipality or 






a public utilities commis- 






sion: 






Public Utilities 






Commissions: 






Hydro-electric commis- 






sions 




354 


For water 




354 


For gas 




3 


Public Services 






Commissions: 






For telephones 




57 


The Minister of Public 


Public Works Act, s.l3 


1 


Works 






The Minister of 


Public Works Act, 




Public Works 


S.15 




A Commission appointed 


Public Works Act, 




by or under the authority 


S.48 





of the Legislature 



The Board of Governors 
of the Ryerson Poly- 
technical Institute 



The Ryerson Polytechnical 
Institute Act, 1962-63, 
s.7(n) 



Includes 
all local 
municipal- 
ities except 
townships 



Created by 

separate 

statutes (such 

as Water 

Resources 

Commission 

Act) which 

contain 

expropriating 

powers 



Chapter 65 979 



Table B— (Continued) 



Expropriating Authority 



2 
Statute 



3 4 5 

Number Number Comment 



A board of trustees, 
directors, commission 
or governing body or 
authority of a 
sanatorium 

School boards which 
operate schools 

Elementary School 
Boards: 

Public Boards of 

Education 

County School Areas 

Township School Areas 

Other — Urban 
—Rural 

Separate School Boards: 

Protestant 
Roman Catholic: 

Combined 

Other 

Secondary School Boards: 
Collegiate Institutes 
Continuation School 



The Sanatoria for 
Consumptives Act, 
S.22 



Schools Administration 
Act, S.65 



12 



53 

1 

596 

170 

97 



204 
321 



197 



Boards 




9 


Boards of Education 




51 


The St. Clair Parkway 
Commission 


St. Clair Parkway 
Commission Act, 1966, 

s.4 


1 


The St. Lawrence 


St. Lawrence 


1 


Parks Commission 


Parks Commission 
Act, S.7 




Ontario Stock Yards 


Stock Yards Act, s.5 


1 


Board 






A municipality 


Telephone Act, s.28 




A municipality that 


Telephone Act, s.54 




has established a 






Municipal telephone 
system under this 
Act or a predecessor 
of the Act 






All the universities 
set forth in s. 1(1) 


University Expropriation 
Powers Act, 1965, 


15 


of the Act 


s.2 





955 
555 



Minister of Public Works 



Wilderness Areas Act, s.4 
TOTAL 



8017 = 



*The figures listed in column 4 are a duplication of those listed in column 3 and are 
not included in the main total. 



980 The Power to Expropriate 

A perusal of the foregoing table shows that the power 
to expropriate land has been conferred in Ontario with reck- 
less and unnecessary liberality, without sufficient control 
over the exercise of the power. It cannot be too strongly 
emphasized that the Legislature should not confer the power 
of expropriation on any body or person unless it is clear that 
the power is inescapably necessary in the interest of good 
government and that adequate controls over its exercise are 
provided. 

It is for the government of the day to decide, as a matter 
of policy, what the requirements of good government are, but 
the power of expropriation should not be included as a part 
of the policy unless the implementation of the policy w^ould 
be frustrated w^ithout it. 

Powers of expropriation constitute far too great an 
infringement on civil rights to be handed out as convenient 
tools. For example, it is difficult to see why a power of expro- 
priation ever was conferred on the Liquor Control Board, 
which is in essence a body engaged merely in merchandising 
liquor.-*^ This power was criticized in the Report of the Com- 
mittee on the Organization of Government in Ontario in 
1959,-^ but the section was not repealed until 1965. 

We do not propose to assess the relative necessity of the 
various powers set out in Table A. There should be a complete 
review of each of the existing powers of expropriation with 
a view^ to determining the purpose and necessity of each one 
and the adequacy of statutory safeguards controlling their 
exercise. 

GUIDELINES GOVERNING CONFERMENT 
OF THE POWER 

The nature of the person or body on whom the power 
of expropriation is to be conferred should always be a matter 
for jealous attention. The less responsible to public opinion 
a particular body may be, the more reluctance should be 
shown in conferring the power of expropriation on it. Non- 

^^''Liquor Control Act, R.S.O. 1960, c. 217, s. 12, repealed by Ont. 1965, c. 59, 

s. 2. 
^"See Report of the Committee on the Organization of Government in 

Ontario (1959), 17. 



Chaplcr bb 981 

elected bodies, such as agricultural societies, consenation 
authorities, the Liquor Control Board, the Hydro-Electric 
Power Coiinnission ol Ontario, and universities, may be 
conscious oi public opinion to some extent, but they are 
remote from control by public opinion in a political and 
democratic sense. 

While the exercise of the powers of such bodies as the 
Hydro-Electric Power Commission and the Niagara Parks 
Commission is subject to the approval of the Lieutenant Gov- 
ernor in Council, they themselves formulate their own expro- 
priation policies and the approval tends to be a matter of 
course. Where expropriation authorities are not responsible 
politically for their decisions, as ministers of the Crown and 
municipal councils are, the existence of their powers of expro- 
priation is a much greater encroachment on civil rights than is 
the case where the powers are held by politically responsible 
authorities. This statement applies with even greater force 
to private bodies or persons who have expropriatory powers, 
such as those found in the Lakes and Rivers Improvement 
Act^^ and the Ontario Energy Board Act."^ 

Where the power is conferred on any body, the identity 
of the person or body who may exercise the power should be 
clearly stated in the legislation. An expropriating authority 
should not have the power to delegate its powers to another 
person or body. In the Commuter Services Act,^" the power 
of expropriation is conferred on "the Minister", but the 
Minister may delegate any of his powers under the Act 
to any one or more crown employees as defined in the 
Public Service Act.^^ The Public Works Act^- provides that 
the like powers and duties as are by the Act imposed or con- 
ferred upon the Minister, including the powers of expropria- 
tion, may be exercised by a "commission appointed by or 
under the authority of the Legislature". Both of these pro- 
visions are contrary to the principles that we think should 
prevail. 

==«R.S.O. 1960, c. 203, s. 46. 

^"Ont. 1964, c. 74, ss. 21,40. 

""Ont. 1965, c. 17, s. 4, as amended by Ont. 1966, c. 19, s. 1. 

"Public Service Act, 1961-62, Ont. 1961-62, c. 121, s. l(da), as enacted by 

Ont. 1962-63, c. 118, s. 1. 
"'R.S.O. 1960, c. 338, s. 48. 



982 The Power to Expropriate 

THE MANNER IN WHICH THE POWER TO 
EXPROPRIATE IS EXPRESSED 

The Public Works Act provides an example of a common 
formula used in expropriation legislation: 

"13. The Minister may for and in the name of Her Majesty 
purchase or acquire and, subject as herinafter mentioned, 
may without the consent of the o^vner thereof enter upon, 
take and expropriate any land that he deems necessary for, 

(a) the public purposes of Ontario; or 

(b) the use or purposes of any department of the Govern- 
ment thereof. "^^ 

Subject to what we shall have to say about expressing the 
purposes for which the power may be exercised, the language 
of this section appears to be satisfactory. It confers the 
pow'Cr to purchase and acquire, quite apart from expropria- 
tion, and then the power to expropriate is clearly conferred. 
The latter is important. Where the Legislature has decided 
to encroach on civil rights by creating a power of expropria- 
tion, it should so state the decision as to make its intention 
readily recognizable. The direct and proper way to do this 
is to use the verb "expropriate" in the operative statutory 
provision. Obscure or less forthright language may fail to 
alert the legislators, or those who examine bills that come 
before the Legislature, to the extent of the powder that is 
being conferred by the legislation. 

The following are some examples of language used to 
confer power of expropriation wdthout using the express 
term. The Cancer Treatment and Research Foundation "may 
acquire by purchase or lease or may enter upon, take and 
use without the consent of the owner thereof, any land. . . ."^* 
In the Lakes and Rivers Improvement Act,^^ the operative 
words are ". . . take, acquire, hold and use. . . ." In the Plan- 
ning Act,^*' the language is "acquire land", but to this is 
added "[t]he provisions of The Municipal Act apply to the 
acqtiisition of land under this Act"^'^— a very obscure way of 

^Uhid., s. 13. 

"^Cancer Act, R.S.O. 1960, c. 45, s. 13(1). 

^^R.S.O. 1960, c. 203, s. 87 (2). 

''^R.S.O. 1960, c. 296, s. 20. 

"Ibid., s. 23. 



Chuptcr 63 983 

conferring the power of expropriation. The Public Utilities 
Act"^*^ provides that an urban nuuiicipal corporation "... may 
take possession of the works of the company and all property 
used in connection therewith. ..." The Wilderness Areas 
Act'*" states: "Land may be accjuired under The Public Works 
Act for the purposes of this Act." 

The Lakes and Rivers Improvement Act and the Public 
Utilities Act, when read as a whole, illustrate how the use of 
more or less innocuous words may cloak the drastic power 
of expropriation. One has to read these statutes as a whole 
to find the power to expropriate. A cloak of another sort is 
employed in the Planning Act and the Wilderness Areas Act. 
These statutes import the power of expropriation by refer- 
ence to the Municipal Act and the Public Works Act, respec- 
tively. Legislation by reference has been condemned repeat- 
edly by the courts. After quoting passages from Craies on 
Statute Law, and a nineteenth century English case, Mr. 
Justice LeBel said: 

"I do not expect that quoting these old passages will do any 
good, but it would be wrong, I think, if I did not refer to 
them in view of this, my latest exasperating experience, 
Avith what the English cases call Tegislation by Reference'. 
This vexing legislative practice ^vill continue to grow, I 
suppose, until an aroused public demands that our public 
statute law be codified.""*" 

We re-emphasize that where it is intended to confer the 
power to expropriate land the language should be forthright 
and clear, and the power should immediately be recognizable 
without the examination of anv other statute, and no lans:uag:e 
should be used which would have the effect of concealins^ 
the power from immediate recognition. Con\'ersely, where 
the intention is not to confer a power to expropriate, the 
word "expropriate" should not be used, as it is in the Public 
Parks Act^^ which provides that a board of park manage- 
ment, ". . . w ith the consent of all parties interested capable of 
consenting, may divert and expropriate any river. . . ." 

■"^R.S.O. 1960, c. 335, s. 62(1). 

'"R.S.O. 1960, c. 432, s. 4. 

'°Re Broivn and the Corp. of Peterborough, [1957] O.R. 224, 243. 

"R.S.O. 1960, c. 329, s. 15. 



984 Tlie Poiver to Expropriate 

The essence of a power of expropriation is that it be exer- 
cised without the consent of parties affected thereby. If the 
intention is not to confer compulsory power of acquisition of 
land, care should be taken to use language which inakes this 
clear. The Agricultural Research Institiue of Ontario Act 
provides that: 

"13. Subject to the approval of the Minister, the Research In- 
stitute may . . . apply for, purchase or otherwise acquire, any 
patents, interest in patents, licences or other rights . . . to . . . 
assign or grant licences in respect of or otherwise turn to 
account the property rights or information so acquired. . . ."^^ 

Quite apart from the question of the constitutional 
validity of this provision, do the words "otherwise acquire" 
include compulsoi^ acquisition? Although the rule of inter- 
pretation is that powers of expropriation are not lightly 
implied, the Legislature should be precise in expressing its 
intention when it confers the powers of acquisition of prop- 
erty on any body. 

PURPOSES FOR WHICH THE POWER IS TO 
BE EXERCISED SHOULD BE STATED 

Powers of expropriation do not exist at large. They must 
be related to some specific purpose or purposes. When the 
Legislature decides to confer on any body the power of expro- 
priation, it should know, and state in clear and precise 
language, the purpose for which it is conferring the power. 
Such statement of purpose delineates a boundary within 
which the power must be exercised and is a safeguard against 
the abuse of the power. 

Some statutes merely state that the expropriating author- 
ity may expropriate "for its purposes".'*^ This language may 
be appropriate where the purposes of the body on which the 
power is conferred are clearly defined. In the Niagara Parks 
Act,^^ the Ontario Telephone Development Corporation 

^^Ont. 1961-62, c. 1, s. 13. 

^'See Cancer Act, R.S.O. 1960, c. 45, s. 13(1); Municipal Act, R.S.O. 1960, c. 

249, s. 333(1); Public Hospitals Act, R.S.O. 1960, c. 322, s. 7. 
^*R.S.O. 1960, c. 262, s. 6. 



Chapter 65 985 

Act/^ and the St. Lawrence Parks Commission Act/" no pur- 
poses are set out for the exercise ol the power ol expropriation. 
It may be inferred that the powers are conferred solely for the 
purpose of the expropriating authority, but the matter is not 
one that should be left to inference. 1 he Legislature should 
not only define, but bring its mind to bear on, the purposes for 
which the power may be exercised. 

The Cancer Act^^ provides an illustration of language 
that ought not to be used when conferring a power of expro- 
priation: '". . . the Foundation may . . . take and use without 
the consent of the owner thereof, any land and buildings that 
are deemed suitable for the purposes of the Foundation . . .". 
The language does not make it clear whether the test for 
the exercise of the power is to be a subjective or an objective 
one. Has the Foundation power to decide (deem) that land 
is suitable for the "purposes" of the Foundation, or could a 
court decide (deem) that land was not suitable for the Foun- 
dation's "purposes"? It is not required that a decision be 
made that the land is necessary for its purposes, nor what the 
purposes may be.^^ Such expressions as "for the public pur- 
poses of Ontario" or "the use or purposes of any department 
of the Government thereof" are unsatisfactory terms to be 
used in conferring a powder of expropriation. The expression 
"for the public purposes of Ontario" has been criticized by Mr. 
Justice McLennan as being "of a broad and vague import". ^^ 

"R.S.O. 1960, c. 280, ss. 4, 6. 

"R.S.O. 1960, c. 279, s. 7; formerly entitled Ontario-St. Lawrence Develop- 
ment Commission Act. 

♦^R.S.O. 1960, c. 45, s. 13. 

'*For a full discussion of the subject of ingredients of a power, see Chapters 
5, 6 and 7 supra. 

**James v. Hydro Electric Poioer Commission, [1953] O.K. 349, 355. 



CHAPTER 66 



Control of the Power to 
Expropriate 



Your Commission has received submissions to the gen- 
eral effect that all expropriations should be subject to the 
approval of some "higher" body. Broadly speaking, these 
submissions may involve the concept that the individual or 
individuals, who may be affected by a proposed expropria- 
tion, should participate to some extent in the process which 
precedes a final decision to expropriate a particular piece of 
land. It has been suggested that in all cases, prior to the exer- 
cise of a power to expropriate, there should be a "trial of 
necessity", in which individuals affected should be allowed 
to participate. Such hearing might involve a proceeding 
wherein the expropriating authority is required to satisfy 
some superior authority that the expropriation is necessary to 
accomplish the purposes at hand, or to show that it is neces- 
sary to take the particular piece of land in question. 

We shall discuss these proposals in due course, but before 
doing so it is necessary to examine the existing law insofar as 
it provides some form of approval by a person or body inde- 
pendent of the expropriating authority before there is an 
effective expropriation. 

PRESENT LAW 

Provisions Requiring Approval 

Thirty-five of the sixty powders of expropriation may be 
exercised by the expropriating authority without the approval 
or consent of any other body. We cannot find that any coherent 

986 



Chapter 66 987 

legislative policy has been followed in deciding when wide 
powers of expropriation will be conferred without approval 
by some superior authority. Bodies which may expropriate 
without approval are of all types including a Minister of the 
Crown/ municipal councils,- appointed bodies^ and private 
persons^. Bodies recjuiring approval include Ministers of the 
Crown and elected bodies, such as municipal councils.'^ 

When approval is required, no coherent pattern emerges 
governing the selection of the approving authority in relation 
to the nature of the expropriating authority. The approving 
bodies may be the Lieutenant Governor in Council, a Minis- 
ter of the Crown, municipal councils, the Department of 
Health, a comity or district court judge, mimicipal electors, 
the Department of Municipal Affairs, the Ontario Energy 
Board, the Ontario Telephone Service Commission or the 
Ontario Municipal Board. 

Table C shows the nature and incidence of the present 
approval system. Expropriating authorities are divided into 
four basic types: private authorities, publicly appointed 
authorities, municipal authorities and Ministers of the Crown. 

^Game and Fish Act, Ont. 1961-62, c. 48, s. 6, as amended by Ont. 1967, c. 30, 

s. 1. 
"Municipal Act, R.S.O. 1960, c. 249, s. 333. 
"Ontario Northland Transportation Commission Act, R.S.O. 1960, c. 276, 

s. 17(c). 

*Lakes and Rivers Improvement Act, R.S.O. 1960, c. 203, s. 46. 
^Commuter Services Act, Ont. 1965, c. 17, s. 4; Cemeteries Act, R.S.O. 1960, 

c. 47, s. 61. 

Table C 
APPROVAL AUTHORITIES 

Expropriating 

Authority Approving Authority Statute 

Private Expropriating Authorities 

Agricultural society Lieutenant Governor Agricultural Societies 
in Council Act, s. 21 



Owner of cemetery Municipal council Cemeteries Act, s. 40 

Lakes and F 
Improvemei 
ss. 87-90, 96 



Any person County or district Lakes and Rivers 

court judge Improvement Act, 



988 Approval Procedure 

Table C— (Continued) 



Expropriating 
Authority 



Approving Authority 



Statute 



A person 



Any person who has 
been given leave to 
construct a pipe line, 
etc. 

Company supplying 
public utility 

Governing body of 
sanatorium 



University 
Hospital 



Ontario Energy 
Board 

Ontario Energy 
Board 



Ontario Municipal 
Board 

Lieutenant Governor 
in Council 



County or district 
court judge 

County or district 
court judge 



Ontario Energy Board 
Act, 1964, s. 21 

Ontario Energy Board 
Act, 1964, s. 40 



Public Utilities Act, 

s. 58 

Sanatoria for 
Consumptives Act, 
s. 22 

Expropriation 
Procedures Act, s. la 

Expropriation 
Procedures Act, s. la 



Publicly Appointed Expropriating Authorities 



Ontario Cancer Treat- 
ment and Research 
Foundation 

Conservation 
authority 

Niagara Parks 
Commission 



Lieutenant Governor 
in Council 



County or district 
court judge 

Lieutenant Governor 
in Council 



Cancer Act, s. 13 



Expropriation 
Procedures Act, s. la 

Niagara Parks Act, 
s. 6 



Ontario Telephone 

Development 

Corporation 



Ontario Telephone 
Authority (Now 
known as the Ontario 
Telephone Develop- 
ment Corporation) 



Ontario Telephone 
Development Cor- 
poration Act, s. 4 



Hydro-Electric Power Lieutenant Governor Power Commission 
Commission in Council Act, s. 24 



Ontario Research 
Foundation 



Lieutenant Governor 
in Council 



Research Foundation 
Act, 1944, c. 53, 
s. 1 1 (c) 



Chapter 66 989 



Table C— (Continued) 



Expropriating 
Authority 



Approving Authority 



Statute 



Governing body of 
sanatorium (if 
appointed by 
municipality) 

St. Clair Parkway 
Commission 



St. Lawrence Parks 
Commission 

Ontario Stock Yards 
Board 



Lieutenant Governor 
in Council and the 
municipality 

Lieutenant Governor 
in Council 



Lieutenant Governor 
in Council 

Lieutenant Governor 
in Council 



Sanatoria for 
Consumptives Act, 
s. 22 



St. Clair Parkway 
Commission Act, 
1966, s. 4 

St. Lawrence Parks 
Commission Act, s. 7 

Stock Yards Act, s. 5 



Municipal Expropriating Authorities 



Municipality (own- 
ing cemetery) 

Municipality 
Municipality 
Urban municipality 

Municipality 
Municipality 



Department of Public 
Health 

Lieutenant Governor 
in Council 

Minister of 
Municipal Affairs 

Electors entitled to 
vote on money by-laws 

Ontario Telephone 
Service Commission 

Ontario Municipal 
Board 



Cemeteries Act, s. 40 



Cemeteries Act, s. 61 



Planning Act, s. 20 
and s. 23 

Public Utilities Act, 
s. 62 

Telephone Act, s. 54 



Telephone Act, s. 54 



Minister of Crown Expropriating Authority 



Minister (or Crown 
employee) 



Lieutenant Governor 
in Council 



Commuter Services 
Act, 1965, s. 4 



990 Approval Procedure 

Grounds for Approval 

In some cases the grounds on which the approval may be 
given are set out in the legislation. For example, under the 
Cemeteries Act/ the owner of a cemetery cannot expropriate 
land for the enlargement of a cemetery unless, inter alia, the 
Department of Public Health ". . . certifies that in its opinion 
the proposed enlargement is for the public advantage and 
convenience and ought to be permitted . . ."; and, under the 
Lakes and Rivers Improvement Act,"^ a person can expropri- 
ate land or other property only if a county or district court 
judge ". . . is of the opinion that . . . [the expropriation] ... is 
in the public interest and is proper and just under all the 
circumstances of the case ..." The amendment to the Expro- 
priation Procedures Act^ in 1966 gives some indication of 
the standards to be met in seeking approval in those cases 
coming within it. The judge may make an order authorizing 
the expropriation where he is "satisfied that the expropriation 
of the land in whole or in part is reasonably necessary for the 
purpose of the applicant". 

In the majority of provisions requiring approval the 
grounds for approval are not set out. Language such as "sub- 
ject to the approval of the Lieutenant Governor in Council 
. . ." precedes the words conferring the power. No legislative 
guide is given as to the grounds on w^hich the Lieutenant 
Governor in Council is to act in exercising the power of 
approval. We have already referred to powers of expropria- 
tion w^here the purposes for which land may be expropriated 
are not clearly set out as a limitation on the power. If such 
purposes are stated, as we recommend, they would furnish 
some guidance. Where no clear purpose is expressed and no 
grounds for approval are stated the power to approve is 
uncontrolled. 

Owner's Right to a Hearing 

Where there are approval provisions, in very few cases is 
the owner of the property given a right to be heard before a 
decision is made by the approving authority. The Ontario 

«R.S.O. I960, c. 47, s. 40. 
'R.S.O. 1960, c. 203, s. 90. 
«Ont. 1966, c. 53, s. 1 (5). 



Chapter 66 991 

Energy Board Act/'* is a rare example of a statute which pro- 
vides tor a notice of an application lor approval to be served. 
"The applicant shall serve notice of the application and 
notice of the hearing on such persons and in such manner 
as the Board directs."^" 

In the absence of an express provision recjuiring notice 
and a hearing, the general rule appears to be settled that 
notice and a hearing are not recjuired before approval is 
given. In the CopitJiorne case,^^ the Supreme Court of Canada 
held that the recjuirements of natural justice do not afford the 
person affected by an expropriation a right to be heard before 
permission to expropriate is granted by the minister. 

DEFECTS IN THE PRESENT LAW 

The present law of Ontario is defective in two ways: 

(1) In many cases there is no proper control over the exer- 
cise of a power of expropriation; and 

(2) Generally, it does not provide for any system of inquiry 
giving persons who will be affected by an expropriation an 
opportunity to be heard. 

CONTROL OF EXPROPRIATION BY APPROVAL 

The decision to expropriate the property of an individ- 
ual is an administrative decision of policy— a political decision 
in which the interests of the individual are sacrificed to the 
general interests of the community. The distinction between 
a judicial decision and an administrative decision of this kind 
is made very clear by Professor H. W. R. Wade in discussing 
the effect to be given to evidence obtained in a statutory 
inquiry: 

". . . [T]he evidence on matters of fact and the argument on 
matters of law should provide the judge with all he needs to 
consider. He ought, in theory, to act like a calculating ma- 
chine, which will deliver the right solution if fed with the 
right data. A minister's decision on a planning scheme or a 

"Ont. 1964, c. 74. 

^°Ibid., s. 40(2); see also Expropriation Procedures Act, Ont. 1962-63, c. 43, s. 
la(3), as enacted by Ont. 1966, c. 53, s. 1. 

"Cfl/gary Power Limited v. Copithorne, [1959] S.C.R. 24. See also Hamer v. 
Etobicoke Board of Education, [1967] 1 O.R. 268, affirmed [1967] 1 O.R. 595 
(C.A.), sub. nom. Meeson v. Etobicoke Board of Education. 



992 Approval Procedure 

clearance scheme or a new town order is something quite dif- 
ferent. The public inquiry cannot provide him with all that 
has to be considered, for there is the whole exterior world of 
political motive."^^ 

The same point was made in concise language in the 
Gordon Committee Report on the Organization of Govern- 
ment in Ontario: ^^ "The courts . . . cannot be left to deter- 
mine the routes that highways will follow", nor, we would 
add, to determine the necessity for land for educational pur- 
poses in Ontario. 

It is useful to restate here what we said earlier when 
dealing with constitutional principles: 

"The general principle underlying the control of the execu- 
tive branch by the Legislature is therefore that every segment 
of the public service should be under the direction and con- 
trol of a Minister who can be called to account by and in the 
Legislature. . . . The absence of the ultimate control by the 
Legislature, exercised through Ministers responsible for the 
exercise of subordinate legislative or administrative powers 
[the power to expropriate is essentially an administrative 
power] by such persons or bodies, is a relevant factor in 
determining ^vhether such powers constitute an unjustified 
encroachment on the rights of individuals."^^ 

We said earlier in this Section that the power of expro- 
priation is such an infringement on civil rights that jealous 
and vigilant attention should always be given to the question 
of upon whom it should be conferred. The less responsible to 
public opinion a particular body may be, the more reluctantly 
should the power of expropriation be conferred on it. The 
same principle should dictate the choice of the approving 
authority. The Legislature should not confer the power of 
expropriation on an appointed body, and the power of 
approval on another appointed body. If an unjustified expro- 
priation decision is made, it is wrong for the government of 
the day to shelter behind the fact that an appointed body made 
the decision. The decision is a policy decision for which the 
government should be held responsible. 

'"H. W. R. Wade, Administrative Law (1961), 173. 

^^Report of the Committee on the Organization of Government in Ontario 

(1959), 26. 
^*pp. 44-5 supra. 



Chapter 66 993 

It is not within the constitutional concept of responsible 
government to confer powers on an appointed body which 
carry with them final and serious political responsibility for 
decisions made. 

The 1966 amendment to the Expropriation Procedures 
Act^^ is an example of legislation providing for evasion of 
responsibility in expropriation matters. A county or district 
court judge is required to authorize the exercise of the power 
of expropriation by conservation authorities, hospitals and 
universities. He must be satisfied that the expropriation of 
the land, in whole or in part, is reasonably necessary for the 
purpose of the applicant. This is bad in principle. The error 
in principle is compounded by the provision for an appeal 
to the Court of Appeal from the order of a county or district 
court judge. Neither county nor district court judges, nor the 
Court of Appeal, should be required to assume the responsi- 
bility of making policy decisions for the government. It is 
difficult to understand how a county or district court judge or 
the Court of Appeal could come to a meaningful decision on 
the requirements of a consen'ation authority, a hospital or a 
university. These are not matters for judicial decision. 

In England all expropriation (compulsory purchase) de- 
cisions are subject to approval by a Minister of the Crown. 
In recognition of the basic constitutional principle of minis- 
terial control this requirement is extended to many other 
matters that are not subject to approval in Ontario, e.g., 
planning permission. 

We have concluded and recommend that, with the 
exception of certain expropriations by municipal authorities, 
the exercise of a power of expropriation by any person or a 
body other than a minister should be subject to the approval 
of a minister. 

In accordance with this principle we recommend that the 
approving authority wdth regard to existing powers of expro- 
priation be as set out in Table D. (Where the power is now 
exercised by a minister we have included him as an approving 
authority in the third column of the Table). 

^=Ont. 1962-63, c. 43, s. la, as enacted by Ont. 1966, c. 53, s. 1. 



994 Approval Procedure 



Table D 
RECOMMENDED APPROVING AUTHORITIES 



Expropriating 
Authority 



Statute 



Recommended 
Approving Authority 



An agricultural 
society 

The Ontario Cancer 
Treatment and 
Research Foundation 

Owner of a cemetery 
(who may or may not 
be a municipal cor- 
poration) 

A local municipality 

The Minister (which 
means the member of 
the executive council 
to whom the adminis- 
tration of this Act is 
assigned by the 
Lieutenant Governor 
in Council) 

A conservation 
authority 

Minister of Lands 
and Forests 

Minister of Highways 



A county 

Minister of 
Economics and 
Development 

A company incor- 
porated pursuant to 
Part IV of the Lakes 
and Rivers Improve- 
ment Act 

The Government 
of Ontario 



Agricultural Societies 
Act, s. 21 

Cancer Act, s. 13 



Minister of 
Agriculture 

Minister of Health 



Cemeteries Act, s. 40 Minister of Health 



Cemeteries Act, s. 61 Minister of Health 



Commuter Services 
Act, 1965, s. 4 



The Minister referred 
to in Column 1 



Conservation 
Authorities Act, 
s. 17(c) 

Game and Fish Act, 
1961-62,5.6 

Highway Improve- 
ment Act, s. 7(1) 

Highway Improve- 
ment Act, s. 66(1) 

Housing Develop- 
ment Act, s. 7 

Lakes and Rivers 
Improvement Act, 

s. 46 



Lakes and Rivers 
Improvement Act, 
s. 52 



Minister of Energy 
and Resources 
Management 

Minister of Lands 
and Forests 

The municipal 

corporation 

expropriating 

Minister of Highways 

Minister of 
Economics and 
Development 

Minister of Lands 
and Forests 



Minister of Lands 
and Forests 



Chapter 66 995 



Table J}— (Continued) 



Expropriating 
Authority 



Statute 



Recommended 
Approving Authority 



A person 



Municipal 
corporations 

Local miinici})alities 



All municipalities 

Local municipalities 

Municipality of 

Metropolitan 

Toronto 

Municipality of 

Metropolitan 

Toronto 

The Metropolitan 
School Board 



The Niagara Parks 
Commission 



A person 



Any person who has 
leave to construct a 
transmission line, or 
a production line, 
distribution line or 
station 

The Ontario 
Northland Trans- 
portation Commission 

The Ontario 
Northland Trans- 
portation Commission 



Lakes and Rivers 
Improvement Act, 
ss. 87-90, 96 

Municipal Act, 

s. 333 

Municipal Act, 

s. 338 

Municipal Act, 
s. 377, para. 63 

Municipal Act, 
s. 379(1), para 49 

Municipality of 
Metropolitan 
Toronto Act, s. 93 

Municipality of 
Metropolitan 
Toronto Act, s. 1 16 

The Municipality of 
Metropolitan 
Toronto Act, s. 145a 

The Niagara Parks 
Act, s. 6 



Ontario Energy 
Board Act, 1964, s. 21 



Ontario Energy 
Board Act, 1964, s. 40 



Ontario Northland 
Transportation Com- 
mission Act, s. 24 

Ontario Northland 
Transportation Com- 
mission Act, s. 29(2) 



Minister of 
Lands and Forests 



The municipal corpo- 
ration expropriating 

The municipal corpo- 
ration expropriating 

The municipal corpo- 
ration expropriating 

The municipal corpo- 
ration expropriating 

Municipality of 

Metropolitan 

Toronto 

Municipality of 

Metropolitan 

Toronto 

Minister of 
Education 



Minister of Energy 
and Resources 
Management 

Minister of Energy 
and Resources 
Management 

Minister of Energy 
and Resources 
Management 



Minister of Transport 



Minister of Transport 



996 Approval Procedure 



Table D— (Continued) 



Expropriating 
Authority 



Statute 



Recommended 
Approving Authority 



Ontaiio Telephone 

Development 

Corporation 

Ontario Telephone 

Development 

Corporation 

Ontario Water 

Resources 

Commission 

Any municipality 



A municipality 



Hydro-Electric 
Power Commission 



Hydro-Electric 
Power Commission 



A municipal corpora- 
tion that has entered 
into a contract for 
the supply of power 
by the Commission 

Hydro-Electric 
Power Commission 



A hospital or a cor- 
poration incorporated 
for the purpose of 
establishing a 
hospital 

A public library 
board 

A board of park 
management 



Ontario Telephone 
Development Cor- 
poration Act, s. 4 

Ontario Telephone 
Development Cor- 
poration Act, s. 6 

Ontario Water 
Resources Commis- 
sion Act, s. 19 

The Ontario Water 
Resources Commis- 
sion Act, s. 32 

Planning Act, 
s. 20 and s. 23 

Power Commission 
Act, s. 24 



Power Commission 
Act, s. 38 

The Power 
Commission Act, s. 66 



Power Control Act, 
S.5 



Public Hospitals 
Act, s. 7 



Public Libraries Act, 
1966, s. 16 

Public Parks Act, 
s. 15 



Minister of 
Municipal Affairs 

Minister of 
Municipal Affairs 

Minister of Energy 
and Resources 
Management 

Minister of 
Municipal Affairs 

Minister of 
Municipal Affairs 

Minister of Energy 
and Resources 
Management 

Minister of Energy 
and Resources 
Management 

The municipal 

corporation 

expropriating 



Minister of Energy 
and Resources 
Management 

Minister of Health 



Minister of 
Education 

(No authorization 
needed because 
power can be exer- 
cised only with the 
consent of all parties) 



Chapter 66 <J97 



Table D— (Continued) 



Expropriating 
Authority 



Statute 



Recommended 
Approving Authority 



A board of park 
management 

A local municipality 



A local municipality 



All municipalities 



A public utility 
commission 

A company incor- 
porated for the 
purpose of supplying 
any public utility 

An urban 
municipality 

A public service 
commission of a 
municipality or a 
public utilities 
commission 

The Minister of 
Public Works 

Minister of 
Public Works 

A commission 
appointed by or 
under the authority 
of the Legislature 

Ontario Research 
Foundation 



The Board of Gover- 
nors of the Ryerson 
Polytechnical 
Institute 



Public Parks Act, 
s. 17 

Public Utilities Act, 

s. 2 

Public Utilities Act, 
s. 4 

Public Utilities Act, 
s. 20 

Public Utilities Act, 
s. 41 

Public Utilities Act, 
s. 58 



Public Utilities Act, 
s. 62 

Public Utilities Act, 

s. 64 



Public Works Act, 
s. 13 

Public Works Act, 

s. 15 

Public Works Act, 
s. 48 



Research Foundation 
Act, 1944, c. 53, 

s. 11(c) 

The Ryerson Poly- 
technical Institute 
Act, 1962-63, s. 7 (n) 



The relevant 
municipality 

The municipal 

corporation 

expropriating 

The municipal 

corporation 

expropriating 

The municipal 

corporation 

expropriating 

The relevant 
municipality 

The relevant 
municipality 



The municipal 

corporation 

expropriating 

The municipal 

corporation 

expropriating 



Minister of Public 
Works 

Minister of Public 
Works 

Minister of Public 
Works 



The minister 
responsible for the 
administration of 
the Act 

Minister of 
Education 



998 



Approval Procedure 



Table D— (Continued) 



Expropriating 
Authority 



Statute 



Recommended 
Approving Authority 



The board of trustees, 
directors, commission 
or other governing 
body or authority of 
a sanatorium 

A public school 
board, separate school 
board, continuation 
school board, board 
of education, high 
school board or ad- 
visory committee 
appointed under 
Part III of the Sec- 
ondary Schools and 
Boards of Education 
Act 

The St. Clair 
Parkway Commission 

The St. Lawrence 
Parks Commission 

Ontario Stock Yards 
Board 

Continuation School 
Board 

A municipality 



A municipality that 
has established a 
municipal telephone 
system under this Act 
or a predecessor of 
the Act 

All of the universities 
set forth in s. 1(1) of 
the Act, being 15 
universities 

Minister of Public 
Works 



Sanatoria for Con- 
sumptives Act, s. 22 



Schools Administra- 
tion Act, s. 65 



St. Clair Parkway 
Commission Act, s. 4 

St. La^vrence Parks 
Commission Act, s. 7 

Stock Yards Act, s. 5 

Secondary Schools 
and Boards of Educa- 
tion Act, s. 7 

Telephone Act, s. 28 



Telephone Act, s. 54 



University Expropria- 
tion Powers Act, 
1965, s. 2 

Wilderness Areas 
Act, s. 4 



Minister of Health 



Minister of 
Education 



Minister of Energy 
and Resources 
Management 

Minister of Energy 
and Resources 
Management 

Minister of 
Agriculture 

Minister of 
Education 

The municipal 

corporation 

expropriating 

The municipal 

corporation 

expropriating 



Minister of 
University Affairs 



Minister of 
Public AVorks 



Chapter 66 999 

Although the Minister of Municipal Affairs is the Min- 
ister responsible for the administration of the Municipal 
Act and related statutes, this Connnission believes that there 
are compelling reasons why the Minister should not be held 
responsible for the exercise of powers of expropriation by 
municipal bodies, except in certain areas. Generally speak- 
ing, nuniicipalities are self-governing. Their councils are 
elected by qualified electors. (This is not entirely true of the 
Council of the Miniicipality of Metropolitan Toronto.) For 
this reason they should be held responsible to the public for 
their decisions. There are, however, some areas of municipal 
government that are subject to some form of provincial 
control, e.g., aspects of planning and financing. But the deci- 
sion to expropriate in most areas has always been vested in 
miniicipalities. The inquiry procedure which w^e later recom- 
mend should apply to municipalities, and the final approval 
power should not be taken from them except where the power 
to expropriate land is exercised for a purpose other than the 
immediate purposes of the municipal body, such as the dis- 
posal of the land to private persons or bodies for their own 
purposes. We think that in such cases the exercise of the 
power of expropriation by municipal bodies should be subject 
to the approval of the Minister of Municipal Affairs. 

Our recommendations give a wider power to municipali- 
ties than now exist in Great Britain. The statutory inquiry 
procedure there applies where compulsory purchase orders are 
made by local governments. Such orders must be confirmed 
by the Minister of Housing and Local Government before 
they become effective. This procedure has been in effect for 
several years^^ and is largely influenced by geographical con- 
siderations and the necessity for close co-ordination between 
local governments and the central government. It may be that 
the same reasons for co-ordination will develop in Ontario as 
population becomes more dense, but we do not think that that 
time has come yet. 

There are several bodies, such as the Ontario Northland 
Transportation Commission and the Niagara Parks Commis- 
sion, which are now charged with the responsibility of adminis- 

'"See Report of Committee on Ministers' Powers, Cmd. 4060, 92. 



1000 Approval Procedure 

tering particular statutes. It is important that a minister be 
responsible for authorizing expropriations by these appointed 
bodies, notwithstanding that the minister may not be directly 
responsible for administering the applicable statutes. 

The Minister of Public Works in the name of Her 
Majesty is charged with the general power to expropriate "... 
for (a) the public purposes of Ontario; or (b) the use or pur- 
poses of any department of the Government thereof. "^"^ It is 
advisable, in cases where an expropriation is being conducted 
under the authority of this Act for the benefit of some depart- 
ment, other than the Department of Public Works, that the 
minister of that department for whose benefit the expropria- 
tion is made be the approving body. This recommendation 
would be applicable to the power conferred under the Game 
and Fish Act,^^ which provides: "Land may be acquired 
under The Public Works Act for the purposes of management, 
perpetuation and rehabilitation of the wildlife resources in 
Ontario." The Minister of Lands and Forests and not the 
Minister of Public Works should be the approving authority 
for expropriations under this section. This recommendation 
also applies to expropriations under the Wilderness Areas 
Act.^'^ 

As we have indicated, the Municipality of Metropolitan 
Toronto is different from other municipal bodies. The mem- 
bers of its council are not elected directly, but are elected to 
the councils or boards of control of its area municipalities, and 
through this route become members of the Metropolitan 
Council. The Chairman of the Council is appointed. In a 
sense its members are elected, and in another sense they are 
appointed. On balance, we think that this difference is not 
sufficient to make a distinction between powers of expropria- 
tion as exercised by the Municipality of Metropolitan 
Toronto and those exercised by other municipalities. They 
should not be subject to the approval of the Minister of 
Municipal Affairs. 

School boards differ from other municipal bodies in one 
significant respect. Although they are elected, they may exer- 

"Public Works Act, R.S.O. 1960, c. 338, s. 13. 
"Ont. 1961-62, c. 48, s. 6. 
"R.S.O. 1960, c. 432, s. 4. 



Chapter 66 1001 

cise powers of expropriation over the lands of persons other 
than their electors. One set of electors elects the public school 
boards and another elects the separate school boards. Not- 
withstanding this, either of these boards may expropriate the 
land of those for whom there is no elected representative on 
the board. In this sense the principle of responsibility of 
elected representatives does not apply as it does to municipal 
councils. The exercise of the power of a school board to 
expropriate land should be subject to the approval of the 
Minister of Education. The Minister is now required to 
approve of a multitude of matters affecting the local operation 
of schools that are of less consequence than the taking of land 
by the exercise of powers of expropriation. 

AN INQUIRY SYSTEM 
Right to a Hearing 

Notwithstanding that the decision to expropriate, and 
what should be expropriated, must be a political decision, 
safeguards should be provided to control the way in which the 
decision is arrived at. Examples have been brought to the 
attention of the Commission of decisions by expropriating 
authorities which can accurately be described as either ill- 
conceived or arbitrary. In one case, complaint was made that 
the expropriating authority caused serious hardship by taking 
large portions of farm land against the protest of the owner, 
despite the apparent lack of necessity to do so to accomplish 
the scheme. The lack of necessity was demonstrated by the 
fact that the authority was prepared to abandon much of the 
land some months later. Other cases were drawn to our atten- 
tion where owners, whose farms had been expropriated, were 
unnecessarily put to great inconvenience and financial hard- 
ship by expropriations that proved to be unnecessary. We are 
not obliged to pass judgment on the wisdom of the intitial 
decision in any particular case; but where the expropriation 
authority itself reverses in part its initial decision, it condemns 
itself. In such cases, if the expropriation plan had been more 
thoroughly considered by the authority before it was imple- 
mented, much injustice would have been averted. We shall 
make procedural recommendations in due course which 
would mitigate in large measure such injustices. 



1002 Approval Procedure 

Other submissions were made to the Commission by 
owners and others concerning arbitrary or unwise conduct or 
action which was largely based on incorrect appreciation of 
the essential facts. In one case it was alleged that the expropri- 
ating authority's map did not show essential details, such as a 
lake. Obviously, we are in no position to assess the soundness 
of these submissions. However, the very fact that they were 
made and that there does not exist in Ontario law a general 
right to contest an expropriation decision on the basis of its 
soundness, fairness, or necessity, shows that the civil rights of 
the landowner are insufficiently safeguarded in our expropria- 
tion procedure. There is a gap in the law that should be 
filled. 

We have, therefore, come to the firm conclusion that an 
inquiry system patterned on that of Great Britain should be 
adopted in Ontario and made applicable to expropriation 
cases. We discussed the British inquiry system at some length 
in Chapter 13 of this Report. 

Before approval of an expropriation is given, adequate 
notice by publication or otherwise of an intention to expro- 
priate should be given and persons affected should have an 
opportunity to file objections with the expropriating author- 
ity within a reasonable period of time. If objections are filed 
^vhich are not withdrawn an inquiry officer should be ap- 
pointed to hold a hearing. 

There has always been an understandable and deep-seated 
resentment on the part of the owners whose property has 
been expropriated that the action has been taken without 
their consent and without a hearing. The right to a hearing 
is fundamental justice. 

In addition to reasons based on fundamental justice, a 
right to be heard will tend to produce expropriation decisions 
which will reffect more consideration for the rights of the 
owner and produce better plans, without sacrificing matters 
of vital public interest. 

It has been suggested that hearings would delay projects 
and increase costs. If the economic interests of the Province 
would suffer to the extent that the Lieutenant Governor in 
Council might think it a proper case to proceed without a 



Chapter 66 1003 

inquiry, he should have power to grant leave to proceed with- 
out giving notice or holding an inquiry. 

Whether inquiries would increase costs is very question- 
able. The hearings in many cases would reveal circumstances 
that would reduce costs and encourage fuller investigation, 
with better planning in the early stages of the project. In any 
case, to deny an individual a right to be heard on the ground 
of cost, when his property is to be taken from him by govern- 
ment action, is a frail excuse for the exercise of arbitrary 
power. 

In the United Kingdom the inquiry procedure is an in- 
tegral part of the expropriation procedure. The procedure 
has been well tried and has been found to be necessary, desir- 
able and successful. 

In cases where the expropriating authority and the ap- 
proving authority are the same (generally so in provincial 
government and municipal expropriations), it may be argued 
that the inquiry procedure is a formality devoid of any real 
guarantee of administrative justice to the owner because the 
expropriating authority is asserting its right and at the same 
time acting as judge. This argument misses the main purpose 
of the inquiry-approval procedure. First, it is not suggested 
that the approving authority is to act as a judge in the tradi- 
tional sense and decide applications according to law. Its 
decision will be, and must be, based on policy, but the purpose 
of the recommended procedure is to give owners affected by 
expropriation orders an opportunity to be heard. Professor 
Wade puts it this way: "It is as plain as can be that a minis- 
terial decision of the kind that follows a public inquiry is not 
judicial at all, but administrative."^^ Second, with the hearing 
and approval, expropriation decisions should be better con- 
sidered and they should be made with a better understanding 
of all the relevant facts. The language of Professor Wade ex- 
presses with great clarity views with which we respectfully 
agree: 

'The value of the right to a hearing ... is that it provides a 
safeguard against oversight. The real risk is not that the 
department will perversely disregard the evidence, but that it 
will be tempted to act before it has even discovered that there 

''"H. W. R. Wade, Administrative Law (1961), 171. 



1004 Approval Procedure 

is another side to the case. The right to a hearing is based on 
the sound principle that a better decision is likely to result 
if both sides of the case are first heard. It is not based on 
any idea that what is finally done need follow logically from 
Tvhat transpires at the hearing. Exactly the same applies to 
public inquiries, which are merely a statutory and formal 
method of giving effect to the same principle of justice which 
the judges developed by case-law. The more extreme legal 
criticisms, therefore, merely draw attention to what is inevit- 
able, i.e. that we are dealing with decisions of policy, not 
decisions on law. But the public inquiry is not at all to be 
despised on that account, any more than the right to a hearing 
is to be despised in other cases. It is essential to fair adminis- 
tration, and there is no reason to maintain that it is valueless 
merely because it requires trust to be placed in the adminis- 
trator. There is something much greater at stake than the 
right to blow off steam. "^^ 

The Inquiry Tribunal 

In the United Kingdom, the inquiry tribunal consists of 
one person. In view of its functions, a larger body is unneces- 
sary. The tribunal should be a body separate from the 
approving authority. It would not be practicable for the ap- 
proving authority itself to hear all the interested parties. That 
would be an ideal procedure, but it is not a practical one. 
The inquiry officer's function should be to accord all necessary 
parties a fair hearing on the relevant issues (compensation and 
the necessity for the work are not relevant issues,) and make 
his findings of fact on the evidence. He should not act as a 
judge in the case in deciding the matter. He should make a 
written report on the facts to the approving authority. 

In the United Kingdom the inquiry officers are called in- 
spectors. They are selected from various quarters. Most of 
them are civil servants in the Ministry of Housing and Local 
Government; others are selected from other government de- 
partments, and some are appointed on an ad hoc basis from 
outside the government service. The factors which should bear 
on the proper selection of inspectors were fully considered by 
the Franks Committee. ^^ This Committee recommended that 
the inspectors for all inquiries be placed under the control of 

'Ubid., 175-76. 

"The Franks Report, 64-66, paras. 293-303. 



Chapter 66 1005 

the Lord Chancellor. I'his recommendation was not accepted 
by the government, probably because it was felt that the 
inspector should be a person lamiliar with the day-to-day work 
and policy of the confirming authority.-^ 

In this Province where we do not have a statutory inquiry 
tradition we are not enciunbered by past practices and meth- 
ods in instittiting the proposed inquii'y-approval procedure. 
We recommend, for the sake of independence, that the inquiry 
officers, permanent or ad hoc, should be appointed by the 
Attorney General. The Attorney General is the Minister 
responsible for the administration of justice in the Province. 
An inquiry should be conducted in a manner that inspires 
confidence ^^•hich is so important in such proceedings. The 
officer should not be too closely identified with the approving 
authority.-^ 

Inquiry Procedure 

We were impressed with the statutory inquiry procedures 
in the United Kingdom. These are not confined to expropria- 
tion (compulsory purchase) decisions, but extend to other 
governmental decisions, such as the granting or refusal of 
planning permission, clearance orders, and new town orders. ^^ 
The procedures available would appear to afford a balance 
between the right of an individual, whose rights are in jeop- 
ardy to be heard, and the public interest. 

In the case of compulsory purchases, an inquiry is held 
by an inquiry officer. Both the expropriating authority and 
persons affected are entitled to be heard. The inspector 
reports on the facts and submissions to the "confirming author- 
ity", i.e., the appropriate Minister, The report is considered 
and the Minister either confirms the compulsory^ purchase 

^^For a fuller discussion of this recommendation, see H. W. R. Wade, Admin- 
istrative Law (1961), 191. 

•*The Franks Report, 65, para. 303. 

"See Acquisition of Land (Authorization Procedure) Act, 1946, 9 & 10 Geo. VI, 
c. 49, particularly the First Schedule thereto; Compulsory Purchase of Land 
Regulations, 1949 (S.L 1949, No. 507); Compulsory Purchase by Local 
Authorities (Inquiries Procedure) Rules, 1962 (S.I. 1962, No. 1424); Tribu- 
nals and Inquiries Act, 1958, 6 & 7 Eliz. II, c. 66, ss. 7A, 12; Tribunals and 
Inquiries Act, 1966, c. 43; Tribunals and Inquiries (Discretionary Inquiries) 
Order, 1967 (S.I. 1967, No. 451); and Compulsory Purchase by Ministers 
(Inquiries Procedure) Rules, 1967 (S.I. 1967, No. 720). 



1006 Approval Procedure 

order, "with or without modifications", or refuses to confirm 
it. On confirmation the compulsoiy purchase order is final 
and binding, subject to being challenged in the courts on 
grounds of ultra vires or procedural deficiencies, within six 
weeks of publication of the notice of the confirmation. 

Where the expropriation is at the instance of a minister, 
the same procedure with respect to the hearing is followed, 
but in such case the minister is himself the confirming 
authority. 

The procedure in the United Kingdom should be a use- 
ful guide. It has been in effect for many years and has under- 
gone some revision, reform and codification.^^ Detailed 
procedural rules should be formulated by the rule-making 
body we recommend in Chapter 14. We outline for considera- 
tion matters that should be included in the rules, modelled in 
large measure on the system followed in the United Kingdom, 
discussed in detail in Chapter 13. 

Procedure Prior to Hearing 

1. The expropriating authority should give notice by 
publication or otherwise of its intention to expropriate. The 
notice should indicate the land proposed to be expropriated, 
and a statement that affected persons have a right of a hearing. 

2. If the person or persons affected desire to exercise their 
right to a hearing, they should so advise the approving autho- 
rity within a stated time. 

3. If no persons notify the approving authority that they 
desire a hearing, then that body may authorize the proposed 
expropriation to proceed. If any affected person or persons 
notify the approving authority that they desire to be heard, 
then this body should appoint a date, time and place for the 
hearing and so notify interested parties. 

4. Prior to the hearing, the expropriating authority 
should make available to interested parties plans, maps and 
documents which it intends to use at the hearing. 

^"See, in particular, Tribunals and Inquiries Act, 1958, 6 & 7 Eliz. II, c. 66, 
ss. 7A, 12; Compulsory Purchase by Local Authorities (Inquiries Procedure) 
Rules, 1962 (S.I. 1962, No. 1424); and Compulsorv Purchase by Ministers 
(Inquiries Procedure) Rules, 1967 (S.I. 1967, No. 720). 



Chapter 66 1007 

Procedure at the Hearing 

1. The parties should be entitled to present their own 
cases, or to be represented by members of the legal profession 
or laymen. 

2. Since the expropriating authority is seeking a change 
in the status quo, it should present its case first and have a 
right of reply following the case for the objectors. Cross- 
examination of witnesses should be allowed and all issues of 
admissibility of evidence should be decided by the inquiry 
officer. The ordinary rules of evidence should not apply; the 
main criterion for the admissibility of evidence should be its 
relevance. Hearsay evidence should be admitted, if, in the 
opinion of the inquiry officer, it may have probative value. 

3. The merits of the expropriating authority's general 
policy should not be considered relevant. For example, any 
evidence as to whether the public work contemplated, e.g., a 
new road or school, was necessary from a policy point of view, 
should be inadmissible. The necessity of the work should be 
assumed and treated as being beyond comment. The sound- 
ness and fairness of taking the particular piece of land de- 
scribed in the proposed expropriation plan should be the 
main issue at the hearing. The public interest and the interests 
of the owner must be considered. Evidence and comment on 
this issue, and on related issues such as the feasibility of the 
modification of the expropriation plan, or alternative sites or 
routes, or the taking of a lesser estate or interest in the land, 
should be relevant. The scope of the hearing we recommend 
is more restricted than in the United Kingdom, where the 
merits of the proposed work may be examined. 

4. The inquiry officer should have the right to inspect the 
site of the proposed expropriation, either in the presence of 
the parties or alone. 

5. Following the presentation of the evidence, all parties 
to the proceeding should be entitled to present argument to 
the inquiry officer. 

The Report of the Inquiry Officer 

The report should contain a summary of the evidence 
and arguments advanced by the contending parties, the in- 



1008 Approval Procedure 

quiry officer's findings of fact, and his opinion on the merits of 
the application with reasons therefor. 

Since the officer is not to have a decisional role in the 
procedure, it is with some reluctance that we recommend that 
he express an opinion on the merits. This reluctance is over- 
come by the following considerations: 

(a) If the main points of evidence and argument are faith- 
fully and accurately recorded in the report, the expression 
of the opinion will appear in a proper context and will not 
be given undue weight. 

(b) In many cases a properly reasoned opinion, expressed 
by the man who heard the presentations and visited the pro- 
posed site, would be useful to the approving authority. It 
would in some cases focus the findings of fact on relevant 
conclusions. The rule in the United Kingdom is: 

"The appointed person shall after the close of the inquiry 
make a report in writing to the Minister which shall include 
the appointed person's finding of fact and his recommenda- 
tions, if any, or his reason for not making any recom- 
mendations. "^^ 

This rule substantially expresses our recommendation, 
except that we would substitute the word "opinion" for the 
word "recommendation". This emphasizes the passive role 
which the inquiry officer should play in the matter. 

Approval 

After receipt of the report, the approving authority 
should consider it and decide to approve (with or without 
modification) or not to approve expropriation, giving written 
reasons for its decision. No modification should extend the 
expropriation to land which was not included in the original 
plan of expropriation, unless the parties affected consent. The 
approving authority should send a copy of the decision, and 
the reasons therefor, to the affected parties, together with the 
inquiry officer's report. 

The foregoing, with accompanying details, should form 
basic procedural provisions to be complied with before a 
valid expropriation decision could be made. 

^^Compulsory Purchase by Local Authorities (Inquiries Procedure) Rules, 1962 
(S.I. 1962, No. 1424), para. 9(1). 



Chapter 66 1009 

JUDICIAL REVIEW OF EXPROPRIATION 
PROCEEDINGS 

Since the validity of an expropriation could be challenged 
for failure to comply with the procedural requirements we 
recommend, in the interests of the security of land titles, a 
time limitation within which expropriation proceedings may 
be challenged. 

In the United Kingdom-'* any person aggrieved by a 
compulsory purchase order may challenge it by way of appli- 
cation to the High Court within six weeks of the date of 
publication of the notice of confirmation of the compulsory 
purchase order in question. Otherwise, the compulsory pur- 
chase order shall not be questioned by any legal proceedings 
whatsoever.-" 

In Ontario any application to set aside the approving 
order should be made to the Appellate Division of the High 
Court of Justice for Ontario.^*' The form of the procedure 
should be as recommended in Chapter 22. The court should 
have power to sustain the expropriation order notwithstand- 
ing that there have been procedural errors. Mere technicalities 
ought not to be allowed to interfere with an otherwise valid 
expropriation. 



"^Acquisitioll of Land (Authorization Procedure) Act, 1946, 9 S; 10 Geo. VI, 

c. 49, para. 15 to Schedule 1. 
""Ibid., para. 16 to Schedule 1. 
^"Ihe constitution of the court to hear such applications is discussed in 

Chapter 44 supra. 



CHAPTER 67 

Expropriation Proceedings 






Ihe first step to implement a decision to expropriate is 
taken by filing a plan pursuant to section 4(1) of the Expro- 
priation Procedures Act: 

"4. (1) Notwithstanding any general or special Act, where an 
expropriating authority has exercised its statutory powers to 
expropriate land, it shall register -^sathout undue delay in 
the proper registry or land titles office a plan of the land 
signed by the expropriating authority and by an Ontario 
land surveyor, and thereupon, but not otherwise, the land 
vests in the expropriating authority."^ 

Subsections 2 to 5 of section 4 deal with the acquisition of 
land for temporary periods, or for limited estates or interests, 
the correction of errors in plans registered, presumptions 
concerning the signature on plans and the registration of cer- 
tain plans by the Hydro-Electric Power Commission of 
Ontario. 

Subject to what w'e have said in the previous chapter, 
there have been no submissions made to this Commission that 
the formal procedure to implement a decision to expropriate 
set out in section 4, coupled with notice to the owner of filing 
given under section 5, is an unfair or unsatisfactory method of 
effecting an expropriation. 

The fact that the title to land is taken by the mere filing 
of a plan in the Registry Office was strongly criticized by 
Thorson, J., the President of the Exchequer Court of Canada, 

^Expropriation Procedures Act, Ont. 1962-63, c. 43, s. -4(1). 

1010 



Chap In- 67 1011 

in Grayso7i v. The Queen. Referring to this power, the learned 
judge said: 

"I have frequently called attention to these provisions of the 
law and stated that Canada has the most arbitrary system 
of expropriation of land in the whole of the civilized world. 
I am not aware of any other country in the civilized world 
that exercises its right of eminent domain in the arbitrary 
manner that Canada does. And, unfortunately, the example 
set by Canada has infected several of the Canadian provinces 
in which a similar system of expropriation has been adopted. "- 

The force of this criticism has been somewhat mitigated 
in Ontario, but only somewhat, by the provisions of section 5 
of the Expropriation Procedures Act^ providing for service of 
notice of expropriation.^ Since it is the registration of the plan 
that vests the land in the expropriating authority, there is a 
public record showing exactly what land has been taken and 
on what date it w^as taken. It is notice to any person searching 
the title to the land in question that the land belonged to the 
expropriating authority as of the date of the registration. 

With the exception of expropriations by conservation 
authorities, public hospitals and universities, the compensa- 
tion payable is fixed as of the date of the registration of the 
plan, unless there has been delay of more than sixty days after 
the registration of the plan in serving the notice of expropria- 
tion.^ In the case of conservation authorities, public hospitals 
and universities, the compensation payable is fixed as of the 
date of the application to the judge for an appointment for a 
hearing.® 

There has been criticism of the provision that the expro- 
priating authority shall register the plan "without undue 
delay ".^ No duty is imposed on the authority to register the 
plan within a specific period of time. No sanction or penalty 
is expressly provided for failure to register "without undue 
delay", but compensation must be assessed as of the date of 
registration if notice is given within sixty days of the plan's 

'[1956-60] Ex. C.R. 331, 335. 

'Ont. 1962-63, c. 43. 

'See pp. 1013-17 infra. 

=Ont. 1962-63, c. 43, ss. 5(2), 12. 

°Ibid., s. la(8), as enacted by Ont. 196G, c. 53, s. 1. 

'Ibid., s. 4(1). 



1012 Expropriation Proceedings 

registration. This may affect the ultimate compensation in 
two ways. On the one hand, rising market values or improve- 
ments to the land being expropriated would accrue to the 
financial detriment of the expropriating authority if it delayed 
registering the plan; on the other hand, as the law now is, 
it may not be in the interests of the expropriating authority 
to register the plan promptly. Announcement of a decision 
to expropriate may place a blight on land to be affected by 
the work and depreciate its market value. One case has come 
to our attention where appraisers had written property owners 
advising them that their land was likely to be expropriated, 
but no plan was registered. The result was that the property 
became frozen. Purchasers would not buy it with the prospect 
of expropriation. 

Where the inquiry-approval procedure is made to apply, 
the owner should have the right to elect to have the compensa- 
tion determined as of the date upon which the notice of hear- 
ing before the inquiiy officer is ser\'ed, or as of the date of the 
registration of the plan, or as of the date on W'hich the notice 
of expropriation is sened. or as of the date on which possession 
is given. 

In those cases where leave is given to proceed without 
holding an inquiry, the owner should have the right to elect 
to have the compensation determined as of the date upon 
^vhich leave is given, or as of the date of the registration of 
the plan, or as of the date on which notice of expropriation is 
served, or as of the date on which possession is given. 

The expropriating authority should be obliged to regis- 
ter the plan within a stipulated period after the approval has 
been given or leave to proceed without an inquiry is given, on 
pain of either having the expropriation lapse or being liable 
to pay compensation by reason of the delay, or both. The 
period of six months from the date of approval provided in 
the 1966 amendment^ is much too long. 

The phrase "where an expropriating authority has exer- 
cised its statutory powers to expropriate land",^ requires clari- 
fication. It seems clear that the phrase embraces the actual 

^Expropriation Procedures Act, Out. 1962-63, c. 43, s. la, as enacted by Ont. 

1966, c. 53, s. 1, as applying only to conservation authorities, hospitals and 

universities. 
"Ibid., s. 4(1). 



Chapter 67 1013 

decision to exercise the powers of expropriation, but does the 
phrase include more? For example, under section 7 of the 
Highway Improvement Act^" where the Minister of Highways 
desires to expropriate land "... he shall register in the proper 
registry or land titles office a plan and description of the land 
. . . signed by himself. . . ." He shall also, within sixty days 
after exercising the powers under section 7, give notice of the 
expropriation to the owner.^^ Is the Minister of Highways 
obliged to register the plan and give notice under both 
statutes? This would not appear to be the intention of the 
Expropriation Procedures Act. It is a matter which should be 
put beyond doubt. 

If the inquiry-approval procedure is adopted, the plan 
which is required to be registered should have an endorse- 
ment signed by the approving authority or one of its officers, 
showing on its face the date of approval and compliance with 
the applicable law. 

NOTICE OF EXPROPRIATION 

Following registration of the plan, notice of expropria- 
tion must be served on the owner: 

"5. (1) Where a plan has been registered under section 4 and 
no agreement as to compensation has been made with the 
owner, the expropriating authority may serve the owner, and 
shall serve the registered owner, Avithin sixty days after the 
date of registration of the plan, with a notice of expropriation 
of his land (Form 1), but failure to serve the notice does not 
invalidate the expropriation. 

(2) Where a plan has been registered under section 4 and a 
notice of expropriation has not been served in accordance 
with subsection 1, the registered owner may elect, by notice 
in writing served upon the expropriating authority, 

(a) to have the compensation to which he is entitled assessed 
as of the date of the registration of the plan under section 
4; or 

(b) to have the compensation to which he is entitled assessed 
as of the date on which he was served ^vith the notice of 
expropriation. "^- 



"R.S.O. 1960. c. 171, s. 7(2). 

"/bid., s. 10(l)(a). 

^"Expropriation Procedures Act, Ont. 1962-63, c. 43, s. 5. 



1014 Expropriation Proceedings 

"Owner", as defined, 

"includes a mortgagee, lessee, tenant, occupant, execution 
creditor, a person entitled to a limited estate or interest in 
land, a committee of the estate of a mentally incompetent 
person or of a person incapable of managing his affairs, and 
a guardian, executor, administrator or trustee in whom land 
is vested."^^ 

"Registered owner", as defined, 

"means an o'^vner of land whose interest in the land is defined 
and whose name is specified in an instrument in the proper 
registry, land titles or sheriff's office, and includes a person 
shown as a tenant of land on the last revised assessment 
roll."i^ 

We set out in full on the next page Form 1 referred to 
in section 5(1). 

While registration of the plan may be notice to anyone 
making a search of the title in the proper registry or land 
titles office, it is obviously not an effective way to furnish 
the ow^ier with notice that his land has been taken. Under the 
existing law, it is possible for an owner to be unaware for 
sixty days following registration of a plan under section 4 of 
the Act that his land no longer belongs to him. 

We have received submissions that the time allowed for 
service of the notice should be considerably shortened. Since 
the general rule is that compensation is assessed as of the date 
of the expropriation, an owner may suffer considerable finan- 
cial loss through making repairs or improvements to his prop- 
erty within the sixty day period betw'een the date of the 
expropriation and the date he receives the notice. This is 
clearly unjust. On the other hand, it might take many days 
for the expropriating authority to determine the names of and 
serve all of the persons who come within the definition of 
registered owner. They might include owners, tenants, mort- 
gagees, mechanics' lien claimants and execution creditors. The 
Ontario Select Committee on Land Expropriation in its 
Report^ ^ came to the conclusion that sixty days would seem 
to be appropriate under most circumstances. It is difficult to 

'■'Ibid., s. 1(f). 
"/tirf., s. 1(g). 

^^Report of the Select Committee of the Legislature on Land Expropriation 
(Ontario, 1962), 16. 



Chapter 67 1015 



Form 1 



THE EXPROPRIATION PROCEDURES ACT, 

1962-63 

(Section y(l) ) 
NOTICE OF EXPROPRIATION 

To 

(Registered Owner) 
TAKE NOTICE: 

1. That the did, on the 

(Name of Authority) 

day of , 19 , register as No 

in the 

(Proper Land Titles or Registry Office) 

a plan of expropriation in accordance with The Expropriation Proce- 
dures Act, 1962-63, and that the land defined therein is vested in the 

for its use. 

(Name of Authority) 

2. Attached hereto is a copy of the relevant portion of the plan of 
expropriation of your land (or a description thereof) . 

3. That, under The Expropriation Procedures Act, 1962-63, the 

(Name of Authority) 

will be notifying you of the amount of compensation, if any, it is willing 
to pay for the land expropriated and for the damages resulting therefrom 
and that, if you are not satisfied with the off"er, you are entitled to have 

the compensation determined by 

(Name of Tribunal) 

or upon your making 

(Alternative Tribunal, if any) 
application to it. 

4. That for any further information respecting this matter you may 

communicate with 

(Name of Authority, Officer or Agent) 

at 

(Address) 

DATED at , this day of , 19 



(Name of Authority, 
Officer or Agent) 



1016 Expropriation Proceedings 

see how the length of time for serving notice could be short- 
ened. Searches have to be completed and notices served. If 
service is by publication, the publication must be once a week 
for three weeks in a newspaper. ^^ 

In view of the fact that a possibility of hardship to an 
owner arising from his having made repairs or improvements 
to his property between the date of the expropriation and the 
date of the service of notice exists, provision should be made 
for the recovery of the cost of such repairs or improvements 
in proper cases. 

If the inquiry-approval procedure is adopted, the sixty- 
day period for giving notice might be shortened considerably. 
Under that procedure the expropriating authority would have 
much of the necessary information before the plan would be 
registered. 

Under the recommended procedure, it would be unlikely 
that the owner would be completely ignorant of the fact that 
his land might be expropriated. Once he received notice that 
the expropriating authority was seeking approval of its plan 
to expropriate his land, he would know that expropriation 
was likely and, after he received notice of approval, he would 
know that it was imminent. 

While it may be difficult to ascertain and serve all persons 
who may be "registered owners" within a period shorter than 
sixty days, there does not appear to be, in most cases, much 
difficulty in serving promptly the person who is most vitally 
interested in the expropriation, the owner-occupant of the 
land involved. This should be done first and the remaining 
services made thereafter. 

FAILURE TO SERVE NOTICE 

Submissions have been made criticizing the provision 
that "failure to serve the notice does not invalidate the expro- 
priation".^^ 

If there is legal authority for the expropriation, and all 
other conditions precedent for a valid expropriation have 
been met, there is no sound reason why the mere failure to 
serve the notice within sixty days should invalidate the pro- 

^"Expropriation Procedures Act, Ont. 1962-63, c. 43, s. 1(h). 
^'Ibid., s. 5(1). 



Chapter 67 1017 

ceedings. The right to have the compensation assessed as of 
the date on which the registered owner is served with notice 
of expropriation would appear to ensure that in most cases 
the notice is served within the sixty days.^® 

It is possible, however, that the registered owner may 
never be served with the notice of expropriation. The right 
to elect to have compensation fixed as of the date on which 
possession is given, which we have recommended, would give 
relief in such cases. ^^ 

The notice in Form P" serves an important purpose 
beyond merely giving information to the owner that his land 
has been expropriated. It informs him that he will be notified 
of the amomit of compensation, if any, which the expropriat- 
ing authority is willing to pay for the land; that he is entitled 
to have the compensation determined by arbitration upon his 
own application; and that he may obtain further information 
from the expropriating authority. 

There should be two additions to the required notice: 

(1) It should state that the owner has the right to invoke 
the negotiation procedure set out in section 9a of the 
Expropriation Procedures Act,^^ and that he must do so 
before proceeding to arbitration, unless the parties other- 
wise agree. 

(2) It should state that the owner may consult a solicitor 
to advise him as to his legal rights, and that the expropriat- 
ing authority will pay the preliminary costs of the solicitor, 
fixed according to a prescribed tariff of costs. 

NEGOTIATION PRIOR TO ARBITRATION 

Following a valid expropriation and service of notice, 
two issues remain outstanding between the expropriating 
authority and the owner: 

(1) When possession of the premises is to be surrendered; 
and 

(2) The amount of compensation to be paid. 

'^Ibid., ss. 5(2), 12. 
'"Ibid., s. 5(2)(b). 
'"See p. 1015 supra. 

"^Expropriation Procedures Act, Ont. 1962-63, c. 43, s. 9a, as enacted bv Ont. 
1965, c. 38, s. 2. 



1018 Expropriation Proceedings 

The latter may be determined either by negotiation and settle- 
ment or by an award of the arbitral tribunal having juris- 
diction. 

It is preferable that the matter be settled to the satisfac- 
tion of both parties rather than litigated, and the law, in so 
far as possible, should be designed to this end. 

Up until the time the Expropriation Procedures Act^^ 
came into force, it was possible for parties to enter into an 
arbitration hearing without an ofler being made and without 
the parties communicating in any way with respect to the 
matter of compensation. This has been corrected by sections 
8, 9-=^ and Qa.^* 

Section 8 reads as follows: 

"8. (1) W'here land has been expropriated from an owner and 
a plan has been registered under section 4 and no agreement 
as to compensation has been m.ade with the owner, the expro- 
priating authority shall, within six months after the date of 
registration of the plan and before taking possession of the 
land, serve upon the registered owner an offer in full pay- 
ment of the compensation for all interests in the land, but 
failure to serve the offer does not invalidate the expropriation. 

(2) The expropriating authority may, within the six-month 
period mentioned in subsection 1 and before taking posses- 
sion of the land, upon giving at least two days' notice to the 
registered owner, apply to the judge for an order extending 
the time for serving^ the offer under subsection 1. 

(3) If the offer required to be served under subsection 1 is 
not served within the time limited by subsection 1 or by an 
order of a judge under subsection 2, interest upon any com- 
pensation payable to the registered owner shall be calculated 
from the date of registration of the plan."^^ 

Two submissions were made to the Commission concern- 
ing this section: 

(1) The saving provision that "failure to serve the offer 
does not invalidate the expropriation" should be eliminated. 

(2) The six months' period is too long. 



=-"Ont. 1962-63, c. 43. 

"^Ibid., s. 9, as re-enacted by Ont. 1965, c. 38, s. 2. 

-*Ibid., s. 9a, as enacted by Ont. 1965, c. 38, s. 2. 

"/&2rf., s. 8. 



Chapter 67 1019 

As in the case of failure to serve the notice under section 
5 (1),"*' there appears to be no sound reason why mere failure 
to serve the offer should have the effect of invalidating the 
expropriation. Subsection 3, in providing that if the offer 
is not served within the requisite time interest shall be calcu- 
lated from the date of the registration of a plan, provides 
some sanction to ensure that offers are ser\Td within the 
required period. 

The second submission has some merit. In difficult cases, 
particularly those involving a large number of properties, the 
six-month period, and perhaps even a longer period, may be 
necessary in order to have the required preparatory and 
appraisal work completed before offers are made. This possi- 
bility should not form a basis for a general rule. In many 
expropriations the expropriating authority takes only one 
property or a small number of properties. In the planning 
leading up to the decision to expropriate an appraisal of the 
land involved would necessarily be made in order to deter- 
mine the cost of the project, since public moneys would be 
required. In such cases there is no reason why the offer 
should not be made much earlier. The sooner the offer of 
compensation is served on the owner, the sooner it is possible 
to have any dispute finally resolved. The benefits of section 
9a,-' w^hich will be discussed later, cannot, under the present 
provisions, accrue to the owner until he has received an offer 
under section 8, or until the time for complying therewith 
has expired. It is, therefore, possible that an appointment for 
negotiation under section 9a may not be taken out until six 
months after the date of the registration of the plan, or a 
longer period of time if an order has been made under section 
8 (2),"^ extending the time for serving the offer under section 
8 (1).-^ Section 9a, enacted in 1965, was intended to promote, 
not delay, prompt settlement of all claims. In it, the principles 
of conciliation are adopted.^'' 

'"Ibid., s. 5(1). 

-''Ibid., s. 9a, as enacted by Ont. 1965, c. 38, s. 2. 

"-'Ibid., s. 8(2). 

"-^Ibid., s. 8(1). 

''"Ibid., s. 9a, as enacted bv Ont. 1965, c. 38, s. 2. 



1020 Expropriation Proceedings 

The section established a new procedure in this juris- 
diction. It reads as follows: 

"9a. (1) A board of negotiation shall be established consisting 
of two or more members appointed by the Lieutenant Gov- 
ernor in Council, one of whom may be designated as chair- 
man. 

(2) The cost of the board of negotiation shall be paid in the 
fiscal year 1965-66 out of the Consolidated Revenue Fund 
and thereafter out of moneys appropriated therefor by the 
Legislature. 

(3) Any two of the members of the board of negotiation con- 
stitute a quorum and are sufficient to perform all functions 
of the board on behalf of the board. 

(4) The board of negotiation may sit at any place in Ontario. 

(5) In any case in which a notice of negotiation is served, the 
board of negotiation shall, upon reasonable notice to the 
expropriating authority and the owner, meet with them and, 
without prejudice to any subsequent proceedings, proceed in 
a summary and informal manner to negotiate a settlement 
of the compensation. 

(6) Before or during the negotiation proceedings, the board 
of negotiation shall inspect the land that has been expro- 
priated or injuriously affected. 

(7) If the negotiation proceedings do not result in a settle- 
ment of the compensation, the expropriating authority or the 
owner may serve notice of arbitration upon the other of 
them, stating that it or he, as the case may be, requires the 
compensation to be determined by arbitration as though the 
negotiation proceedings had not taken place. "^^ 

The procedure is mandatory in all cases, except where 
the parties agree otherwise. The beneficial effect of the pro- 
cedure is that it forces the parties to meet together to discuss 
any unresolved differences. Negotiations are conducted in an 
atmosphere of informality. Freedom of discussion is pro- 
moted, without prejudice to any subsequent proceedings. A 
party may appear before the board with or without a solici- 
tor. Where agreement has not been reached, the board usually 
recommends a settlement figure. In practice, this figure in- 
cludes, in addition to a sum for compensation for the land 
taken, a sum to cover the party's legitimate costs to the date 
of negotiation proceedings, e.g., solicitors' and appraisers' 
costs. We think this practice is as it should be. 

"/&2rf., s. 9a, as enacted by Ont. 1965, c. 38, s. 2. 



Chapter 67 1021 

The board aulhorizcd by ihis section held its first meet- 
ing on August 12, 1965. At the time of writing it has held 
625 meetings. The existing information indicates that sixty- 
nine per cent of the negotiations which it has conducted have 
resulted in settlements (or, at least, the cases involved were 
settled short of arbitration); nineteen per cent did not result 
in settlement; and twelve per cent have not yet resulted in 
either settlement or arbitration. 

It seems inevitable that as more expropriations take place 
in the Province there will be a larger number of cases coming 
on for negotiation under section 9a. This will result in a 
delay in obtaining appointments for meetings and one of the 
primary purposes of the negotiation procedure will be de- 
feated. This difficulty should be anticipated now by making 
provision for such additional personnel for the board as may 
be necessary. 

We received submissions from members of the public, 
both before and after the board was established, endorsing the 
principle of compulsory negotiation prior to arbitration. 
There seemed to be a lack of knowledge that the board had 
been established. If the notice of expropriation is amended 
as we have suggested,^- the interested parties would have full 
knowledge of their rights and obligations. 

EXCHANGE OF INFORMATION 

It is generally recognized that full and fair disclosure is 
essential to the just disposition of adverse claims. Detailed 
procedure for production and pre-trial examinations of parties 
is prescribed in actions in the ordinary courts. The result is 
that a very large percentage of the actions that are commenced 
are settled by negotiation before trial. Another ecjually 
important result is that in those cases that are not settled the 
parties come to court with a knowledge of the case they have 
to meet. This saves the time of the court and promotes justice. 

In expropriation cases where large sums of money are 
usually in\'ol\'ed, there are no general provisions for produc- 
tion, discovery or exchange of valuators' appraisals. (The 
Ontario Municipal Board may make orders for discovery and 

""See p. 1017 supra. 



1022 Expropriation Proceedings 

production. )^^ The proceedings before the board of negotia- 
tion are stated to be without prejudice and in no sense can 
these proceedings be a substitute for production. Later in this 
chapter we discuss a form of production and discovery that 
should be available if either party desires to take advantage 
of it. Proper production and discovery would create a legal 
framework for the exchange between the parties of relevant 
material bearing upon compensation, which should be made 
a\ailable as a basis of negotiation as well as preparation for 
arbitration. In England the parties are required to exchange 
reports of appraisers and deposit them with the Registrar of 
the Lands Tribunal. ^^ 

We were told that the usual practice in England is for 
expropriating authorities to be open and frank with the 
owners and to furnish them with all revelant information, 
such as schedules of comparable sales and valuations. It is 
undesirable that the adversai-)' system, with whatever merits or 
shortcomings it may have, be applied without restriction 
between expropriating authorities and owners. 

A case was brought to the attention of the Commission 
during the public hearings, illustrating the urgent need for 
full and fair disclosure and fair dealing on the part of expro- 
priating authorities. A municipality expropriated farm land 
belonging to one who had come to Ontario from Europe and 
who was not familiar with the laws and procedures of the 
Province. The expropriating authority offered the owner $900 
for his land. The owner, who had little knowledge of his 
rights with respect to compensation, sought the assistance of 
the local county federation of agiiculture. Upon its interven- 
tion the offer was raised to $2,000, and finally $5,000 was paid 
and accepted. 

Your Commission requested an explanation from the 
municipality. According to the explanation, the initial offer 
appeared to have been based on ignorance or incompetence 
on the part of the expropriating authority or its agent. The 
authority did not conduct adequate inspection of the premises 
and compensable injury was not taken into consideration. It 

^^Table E to Chapter 72, pp. 1066 ff. infra; Ontario Municipal Board Act, 
R.S.O. 1960, c. 274, ss. 37, 90; R.R.O. 1960, Reg. 466, s. 14, Forms 4, 5, 6, 
7; see also Re Pasquale and Twp. of Vaughan, [1967] 1 O.R. 417. 

''^Lancls Tribunal Rules, 1963 (S.I. 1963, No, 483), Rule 42(4). 



Chapter 67 1023 

may be that the appraiser was merely incompetent. Whatever 
the reason, the municipality solemnly offered $900 for a 
property for which ii was willing to pay So, ()()(). It is not an 
acceptable answer to say that the farmer could have obtained 
his ultimate rights on an arbitration. We emphasize that 
everything should be done to encourage settlement of com- 
pensation disputes by negotiation. For this to be possible, the 
utmost good faith on the part of expropriating authorities 
should at all times be demonstrated. An expropriating 
authority which enters into negotiations with an owner is not 
negotiating in good faith without first having made an honest 
attempt to decide for itself, on careful examination and 
appraisal, what is proper compensation for the loss inflicted. 
We shall discuss the role of the appraisal profession later in 
this Section. Undoubtedly, if the farmer involved in the case 
we mentioned had accepted the first offer an intolerable 
injustice would ha^'e been suffered. 

Submissions -^vere made to the effect that expropriating 
authorities and their agents, in some cases, have adopted an 
arrogant, rude, "take-it-or-leave-it" attitude towards ow^iers. 
WHiatever may be the proper mode of negotiation betw^een 
two private parties, different principles should govern the 
course of negotiation between an expropriating authority and 
an owner. One is usually a public body wath statutory powers 
to take away the property rights of the owner; the other is a 
private person who, through no fault or act of his own, has 
had his property taken. These facts dictate that the expro- 
priating authority and its agents are in good conscience 
obliged to treat the owner witli courtesy and fairness. This 
cannot be enforced entirely by legislation, but legislation 
^v'hich provides safeguards against abuse of power curbs 
arrogance. 

POSSESSION BY THE EXPROPRIATING 
AUTHORITY 

Unless otherwise agreed, the purchaser of real estate 
normally obtains the right to possession of the premises at 
the time that the title to the land passes to him. Where the 
land is expropriated, it is otherwise. Possession follows some 
time after the transfer of title. 



1024 Expropriation Proceedings, 

The rights and liabilities of the parties with respect to 
possession are governed by the Expropriation Procedures Act: 

"18. Where land has been expropriated and the compensation 
has not been agreed upon or determined, the expropriating 
authority, before taking possession of the land, shall offer to 
the registered o^vner a sum not less than 50 per cent of the 
amount to Av'hich he may be entitled as estimated by the 
expropriating authority, and, if the registered owner accepts 
that sum, it shall be paid and applied in partial payment of 
any compensation that may subsequently be agreed upon or 
determined. ^^ 

19. (1) Where land that has been expropriated is vested in an 
expropriating authority and the expropriating authority has 
served the registered o^vner ^vith a notice that it requires 
possession of the land on the date specified therein, the expro- 
priating authority, if no application is made under subsection 
3, is entitled to enter upon and take possession of the land 
on the date specified in the notice. 

(2) The date for possession shall be at least ten days after 
the date of the serving of the notice of possession. 

(8) A registered owner or an expropriating authority may, 
upon such notice as the judge directs, apply to a judge for an 
adjustment of the date for possession specified in the notice 
of possession, and the judge, if he considers that under all the 
circumstances the application should be granted, may fix the 
date for possession. "2*^ 

Before an expropriating authority can lawfully enter into 
possession of expropriated land, the following steps must be 
taken: 

(1) The plan must be registered in the appropriate registry 
office. ^^ 

(2) The registered o^vner mtist be served with an offer in 
ftill payment of compensation.^^ 

(3) The registered owner mtist be offered a stim not less 
than fifty per cent of the amount to which he may be en- 
titled, as estimated by the expropriating authority.^" 



'°Ont. 1962-G:;, c. 43, s. 18. 
^"Ibid., s. 19. 
^'Ihid., s. 4. 
"Vfc/f/., s. 8 (1) (2). 
^'Ibid., s. 18. 



Chapirr 67 1025 

(4) If no applicaiion is made lor an adjusLiucnl ol ilic date 
for possession, ten days' notice recjiiiring possession must be 
serv'ed on the registered owner.'" 

(5) If an application is made lor an adjustment of the date 
of possession, the expropriating authority cannot enter into 
possession before the date fixed for possession by the 
judge.^^ 

It is possible under the law as it now stands for an expro- 
priating authority to obtain possession w'ithin ten days of the 
registration of the plan, iniless a judge has made an order to 
the contrary. 

It is obvious that extreme hardship could result to an 
owner if he be not given sufficient notice of the time when the 
expropriating authority intends to enter into possession of his 
premises. The main hardships would be his inability to re- 
locate in adequate alternative accommodation and the inter- 
ference with any business conducted on the property involved. 
Examples of these hardships ha\'e been put before the Com- 
mission in detailed submissions. In one case, following an 
expropriation of an extensi\'e area of land, the owners w^ere 
given notice in an informal manner to give up possession in 
two years, but subsequently they were given notice to vacate 
in three months' time. This is an intolerable exercise of the 
powers conferred on an expropriating authority. 

A converse abuse of the exercise of poAver was drawn to 
the attention of the Commission. Notice to surrender posses- 
sion on a particular date was given to the owner, followed by 
a notice extending the time for possession. In one case the 
owner was put to great inconvenience and expense by being 
saddled with two farms and all of the attendant costs and 
expenses related thereto, by reason of the fact that the expro- 
priating authority changed the date of possession to a later 
date. The expropriations referred to took place prior to the 
Expropriation Procedures Act and thus ^vere not governed 
by it. 

However, it has been suggested that the Expropriation 
Procedures Act does not entirely eliminate the possibility of 

"/6jV/., s. 19(1)(2). 
'Ubid., s. 19 (3). 



1020 Expropriation Proceedings 

abuses that may arise concerning possession of expropriated 
land: 

(1) It is not clear that the existing law obliges an expro- 
priating authority to take possession of the land, with all 
the attendant consequences which flow from possession or 
occupancy, on the date specified in the notice, or that fixed 
by the judge where an adjustment has been made. 

(2) The expropriating aiuhority may informally lead the 
owner to belie\'e that it requires possession at a date earlier 
than that stated in the notice. 

(3) The expropriating authority may informally lead the 
owner to believe that possession will not be required at the 
time stated in the notice. 

The expropriating authority should be required to 
take possession of the land, with all the attendant liabilities, 
on the date fixed for giving possession in the notice or by the 
judge, unless the parties otherwise agree. 

The matters raised in items (2) and (3) are relevant cir- 
cumstances which the judge may take into account in adjust- 
ing the date for possession tmder section 19 (3). 

If a project which involves expropriation is carefully 
planned, as it should be, there is no reason in most cases why 
notice of possession cotild not be served upon the owner at 
the time of the expropriation, i.e., at the date of the registra- 
tion of the plan. If this were the case, then a period longer 
than ten days for possession could and should be provided for 
in the legislation. We understand that now notices of posses- 
sion are often served a considerable time after the registration 
of the plan under section 4. One probable explanation of this 
practice is that the expropriating authorities do their planning 
piecemeal and determine for themselves, sometime after the 
expropriation, when they will require possession of the land. 
If this be the case, then we think it fair that expropriating 
authorities, as part of their planning for the project involved, 
should determine, at the time of the expropriation, exactly 
when they will require possession. We realize the difficulties 
which face expropriating authorities concerning such matters 



Chapter 67 1027 

as the making of contracts for the demolition of existing build- 
ings, and for the construction of new works or buildings. But 
we feel that the expropriating authority rather than the owner 
should assume tlie hardships and risks which might flow from 
ha\'ing, or not having, as tlie case may be, possession of the 
land involved. The expropriating authority should be re- 
qtiired to give a minimimi of three months notice of posses- 
sion under section 19 of the Act. We stress that this is the 
minimum period and it should be provided by legislation. 

We recognize that in emergencies the public interest 
may re(}tiire that the expropriating authority obtain possession 
in a shorter time than three months. These emergencies, if 
properly proven, would be relevant to the circumstances to be 
considered by the judge on an application for "an adjustment 
of the date" under section 19 (3). 

The Ontario Select Committee of the Legislature on 
Land Expropriation, in its Report in 1962^" recommended 
that there be information in the notice of possession advising 
the owner of the "options available to him"— specifically, that 
he has a right to apply to the judge for an order extending the 
time and that the expropriating authority has a corresponding 
right to apply for a reduction of the time specified in the 
notice. This recommendation was not implemented. The 
Act as it now stands does not require any such information to 
be given in the notice. That this information be furnished to 
the owner is essential so that he may be fully apprised of his 
rights. 

AMOUNT TO BE OFFERED 

As we ha\e said, the Act^^ requires the expropriating 
authority, before taking possession, to offer to the registered 
owner a sum not less than fifty per cent of the amount to which 
he may be entitled, as estimated by the expropriating author- 
ity. The offer and acceptance of the sum do not prejudice 
the rights of the parties in the ultimate determination of the 
amount of compensation. 

*°Report of the Select Committee of the Legislature on Land Expropriation 

(Ontario, 1962), 19. 
''Ont. 1962-63, c. 43, s. 18. 



1028 Expropriation Proceedings 

We received submissions contending that the amount 
required to be offered should be increased. In practically all 
cases, when possession is given up, the owner must relocate 
in alternative premises. This relocation usually involves, as a 
minimum, a deposit at the time the contract to purchase the 
new premises is made, moving costs, solicitors' fees, and a 
down payment on the completion of the contract to purchase. 
In normal real estate transactions the funds to cover these 
costs, except for the deposit, are provided by the proceeds of 
the sale of the equity in the property that the purchaser has 
sold. In expropriation cases it might well be that the fifty 
per cent of the appraised value of the land taken would be 
exhausted in discharging the existing encumbrances on the 
property, with nothing left to invest in alternative property. 
In such cases, personal and financial hardships are imposed on 
the owner. 

The Pennsylvania law^^ requires that expropriating 
authorities, before taking possession, must offer to pay to the 
owner "the amount of just compensation as estimated" by 
them. Payments made are without prejudice to the rights of 
either party "to proceed to a final determination of the just 
compensation and the payments heretofore made shall be con- 
sidered only as payments pro tan to of the just compensation 
as finally determined". 

We have been informed that one of the large expropriat- 
ing authorities in the Pro^'ince has made it a practice volun- 
tarily to pay owners se\'enty per cent of the estimated value 
of the property, and sometimes more, depending on the 
existing encumbrances. The argument against obliging expro- 
priating authories to offer the full amount of compensation 
prior to their taking possession is that, if it should subse- 
quently be found that o\'erpayment has been made, the 
expropriating authority might have difficulty in recovering 
the difference. This may be a possibility in some cases, but 
the advantages of full payment to the owner prior to his 
giving up possession significantly outweigh the small risks 
that expropriating authorities would incur in the circum- 
stances. The risk is one that should be borne by expropriat- 

"Eminent Domain Code, 1964, s. 407(a). 



Chapter 67 1029 

ing authorities. ()^\ ncrs of expropriated {properties ought not 
to be required to pro\ ide insurance against this risk. 

I'he Ontario Law Relorni Commission lias recom- 
mended that 85% ol the estimated market value of the 
property expropriated should be paid to the owner before 
taking possession.^'" We think this is the minimum. We prefer 
the principle of the Pennsylvania law requiring that the ftill 
amoinit of compensation as estimated by the expropriating 
authority should be offered to the owner as a condition prece- 
dent to its obtaining possession. 

'"Report of the Ontario Law Reform Commission, The Basis for Compensa- 
tion on Expropriation (September, 1967), 70. 



CHAPTER 68 

Arbitration 



THE RIGHT TO ARBITRATE 

Ihe ultimate right to arbitrate is the fundamental factor 
which controls and gives meaning to the process of negotia- 
tion. The right, as expressed in the Expropriation Procedures 
Act, is: 

"10. (1) "Where the expropriating authority is a municipality 
as defined in The Department of Municipal Affairs Act, a 
claim for compensation, if not agreed upon by the authority 
and the owner and if not settled by negotiation proceedings, 
shall be determined by, 

(a) the judge in Avhich case the provisions of The Munici- 
pal Arbitrations Act as to procedure apply; 

(b) the official arbitrator, in Avhich case the provisions of 
The Municipal Arbitrations Act as to procedure apply; or 

(c) the Board, in \vhich case the provisions of The Ontario 
Municipal Board Act as to procedure apply, 

as provided for in Part X\'I of The Municipal Act. 

(2) Where the expropriating authority has received its 
authority under section 21 or 41 of The Ontario Energy 
Board Act, 1964 or a predecessor thereof, a claim for com- 
pensation, if not agreed upon by the authority and the owner 
and if not settled by negotiation proceedings, shall be deter- 
mined under section 2 1 or 4 1 , as the case may be, of that Act. 

(3) W^here the expropriating authority does not come within 
subsection 1 or 2 or Avhere the municipality mentioned in 
subsection 1 is a local board of more than one municipality, 

1030 



Chapter 68 1031 

a claim for compensation, if not agreed upon by the authority 
and the oAvner and if not settled liy negotiation proceedings, 
shall be determined by the Board and not otherwise, and 
Tlie Ontdrio Municipal Board Act, except sections 94 and 
95, applies so far as is practicable lo every such cla^m."^ 

Under sections 21 and 41 of the Ontario Energy Board 
Act,- provision is made for arbitration by an appointed board, 
with an appeal by way of a hearing de novo to the Ontario 
Municipal Board. ^ 

Notwithstanding the statutory right to arbitrate, the 
parties may have a right to submit the issues of compensation 
to any type of private arbitration on which they agree and 
abide by the result. 

The important factors in the process of arbitration are: 

(1) The nature of the arbitral tribunal; and 

(2) The procedure governing arbitration proceedings, both 
before and during the actual arbitration hearing. 

THE ARBITRAL TRIBUNAL 

The statutory provisions for arbitral tribunals in ex- 
propriation cases are incoherent and illogical. The types of 
tribunals empowered to hear applications to determine com- 
pensation are: 

(a) County or district court judges; 

(b) Official Arbitrators (who may or may not be county or 
district court judges); 

(c) 7 he Ontario Municipal Board; 

(d) Boards of arbitration appointed by the Lieutenant 
Governor in Council under the Ontario Energy Board Act,^ 
or by the minister as defined in the Act.^ 

Where the expropriating authority is a municipality as 
defined in the Department of Municipal Affairs Act, the claim 

^Ont. 1962-63, c. 43, s. 10, as enacted bv Out. 1965, c. 38, s. 2. 

"Ont. 1964, c. 74. 

^For further discussion of this procedure, see pp. 1018-49 infra. 

'Om. 1964, c. 74, s. 21 and O. Reg 323/64. 

^Ibid., s. 41 (3). 



1032 Arbitration Proceedings 

for compensation shall be determined under the provisions 
of Part XVI of the Municipal Act.^ The relevant sections are: 

"347. (1) Except in cases where there is an official arbitrator, 
the senior judge of the county or district court shall be sole 
arbitrator unless he under his hand requests a junior judge or 
the judge or junior judge of some other county or district to 
act for him, in Avhich case the judge so designated shall be 
sole arbitrator. 

(2) The provisions of The Municipal Arbitrations Act as to 
procedure and appeals apply to arbitrations held and a^vards 
made by the judge. 

348. (I) Notwithstanding the other provisions of this Act or 
any other Act, the council may by by-law designate the Muni- 
cipal Board as the sole arbitrator, in which case the Municipal 
Board has and may exercise all the powers and duties of an 
official arbitrator. 

(2) Except as provided in subsection 3, The Ontario Munici- 
pal Board Act applies to proceedings taken before the 
Municipal Board under this section. 

(3) The provisions of The Municipal Arbitrations Act with 
respect to appeals apply to a^vards made by the Municipal 
Board under this section." 

The oince of Official Arbitrator is governed by the Munic- 
ipal Arbitrations Act.' The relevant sections are: 

"1. (1) An official referee may be appointed by the Lieu- 
tenant Governor in Council for any municipality to -^vhich 
this Act applies and he shall be the 'Official Arbitrator' for 
the municipality for which he is appointed. 

(2) The Official Arbitrator shall, 

(a) be a judge of a county court or a barrister of at 
least ten years standing at the Bar of Ontario; 

(b) have all the poAvers of an official referee under 
The Judicature Act and of an arbitrator under The 
Municipal Act or under The Arbitrations Act; 

(c) be an officer of the Supreme Court; 

(d) not act as solicitor or counsel for or against the 
corporation or for any other municipal corporation; 

(e) have all the powers of a judge of the Supreme 
Court including those relating to the production of 
books and papers, the amendment of notices for com- 
pensation or damage and of all other notices and pro- 

•^R.S.O. 1960, c. 249. ss. 347, 348. 
^R.S.O. 1960, c. 250. 



Chapter 68 lOS.*^ 

ceedings, the rcctificalion of errors or omissions, the 
time and place of taking examinations and views, the 
assistance of valuators, appraisers, engineers, survey- 
ors or other experts, and as respects all matters inci- 
dent to the hearing and determination of matters 
before him or proper for doing complete justice 
therein between the parties, including the power of 
a\s'arding costs. 

(3) Where there is an Official Arbitrator for a municipal- 
ity to which this Act applies, 

(a) all claims for compensation or damages for land 
expropriated or injuriously affected imder The 
Miuiicipal Act; and 

(b) all claims and questions arising under any lease 
or contract to which the municipality is a party and 
which by by-la^v or the terms of the lease or contract 
are to be determined by arbitration, 

against the municipality or against such municipality and an 
adjoining municipality shall be heard and determined by 
the Official Arbitrator. 

(4) Where a claim is against a municipality and an ad- 
joining municipality, each of which has an Official Arbitrator, 
neither municipality shall be deemed to have an Official 
Arbitrator. 

12. (1) One-half of the fees and expenses of the Official 
Arbitrator is payable by each of the parties to the reference if 
only t^vo parties are interested, and proportionately by all 
parties interested if a larger number than two are so 
interested; but the Official Arbitrator has power to aw^ard that 
any sum so paid or payable may be recoverable by any one or 
more of the parties from any other or others of them, and 
such fees and expenses are recoverable as any other costs of 
the arbitration. 

(2) If the award is not taken up within thirty days after 
service upon the parties of the notice of filing thereof, the 
fees and expenses of the Official Arbitrator are recoverable by 
action from any one or more of the parties to the arbitration. 

(3) Nothing herein prejudicially affects the right of the 
Official Arbitrator to recover his fees or expenses in any w^ay 
in which they may now be recovered. 

15. (1) This Act extends and applies to cities having a 
population of not less than 100,000, to The Municipality of 
Metropolitan Toronto, the County of York and to the Town- 
ship of York, and to any municipality the council of Avhich 



1034 Arbitration Proceedings 

by by-law declares that it is desirable that the municipality be 
brought within the provisions of this Act, and in such case 
this Act shall be read as though it had been expressly applied 
to such municipality by the terms thereof. 

(2) The council of a municipality that has passed a by-law 
under subsection 1 may repeal it at any tiine after the expira- 
tion of six months from the passing of the by-la^v, and upon 
such repeal this Act ceases to apply or be in force in the 
municipality."^ 

To summarize, the arbitral tribunal for a claim against a 
municipality for compensation for expropriation of land may 
be: 

(1) The Official Arbitrator; 

(2) The senior judge of the county or district court; or 

(3) The Ontario Municipal Board. 

The Official Arbitrator. If the Municipal Arbitrations Act 
applies, or is by by-law made to apply, to the municipality 
involved, and an Official Arbitrator has been appointed under 
section 1(1),^ the Official Arbitrator may be a county court 
judge or a barrister of at least ten years standing. A munici- 
pality having an Official Arbitrator, by virtue of having passed 
a by-law under section 15(1) of the Act, may in accordance 
with subsection 2 of that section by by-law dismiss its Official 
Arbitrator. If this were done then the municipality's arbitra- 
tor would be a county or district court judge.^° Any munici- 
pality, by passing a by-law, may rid itself of either its Official 
Arbitrator or its sole arbitrator by appointing the Ontario 
Municipal Board as sole arbitrator. ^^ 

The Senior Judge of a county or district court is "sole arbi- 
trator" unless he requests a junior judge, or the judge or 
jiniior judge of some other county to act for him, if an Official 
Arbitrator has not been appointed under the Municipal Arbi- 
trations Act, and no by-law has been passed under section 
348 (1) of the Municipal Act.^- 

^Ibid., s. 1, as amended by Ont. 1965, c. 78, s. 1; s. 12; s. 15, as amended by 

Ont. 1965, c. 78, s. 4. 

"See pp. 1032-33 supra. 

^"Municipal Act, R.S.O. 1960, c. 249, s. 347(1). 
^Hbid., s. 348 (1). 
^-Ibid., s. 347. 



Chapter 68 1035 

The Ontario Municipal Board is the arbitrator if a by-law 
has been passed under section 348 (1).'^ 

llie law with respect to the selection ol the arbitral tri- 
biHial exhibits a domination of history over clear and logical 
thinking. In many cases one is recjuircd to thread one's way 
through a legislative maze to determine with certainty which 
is the proper tribunal. In certain cases this task is (|uite 
difficult. 

Expropriations by the Metropolitan Separate School 
Board pro\'ide an example. The Board has a geographical 
jurisdiction which is not coterminous with that of the Munici- 
pality of Metropolitan Toronto. ^^ It might be said that the 
proper tribunal to hear claims resulting from this Board's 
expropriations would be the Ontario Municipal Board under 
section 10(3) of the Expropriation Procedures Act.^^ How- 
ever, although it is clear that the Board is a "municipality" 
and a "local board" as defined in the Department of Munici- 
pal Affairs Act/*^ can it be said that it is a "local board" of any 
municipality within section 10(3) of the Expropriation Pro- 
cedures Act? The confusion does not end there. 

Section 10(1) dictates that where the expropriating 
authority is a municipality as defined in the Department of 
Municipal Affairs Act, the identity of the arbitral tribunal is 
to be determined by reference to Part XVI of the Municipal 
Act. Does subsection 3 of section 10 come into operation at 
all? When one examines Part XVI of the Municipal Act, it 
appears to imply that if the land expropriated is within a 
municipal jurisdiction where there is an Official Arbitrator, the 
county or district court judge as sole arbitrator is excluded. 
The City of Toronto is within the geographical area of the 
Metropolitan Separate School Board. Does it follow that, if 
this board expropriates lands within the boundaries of the 
city, the claim for compensation will be heard by the city's 
Official Arbitrator (it has one); but that if the land is within 
Metropolitan Toronto, but in an area that does not have an 

'Uhid., s. 348. 

^'Metropolitan Separate School Board Act, 1953, Ont. 1953, c. 119, ss. l(a)(c), 

3, 8, 9, 10. 
'=Ont. 1962-63, c. 13, s. 10(3), as enacted by Ont. 1965, c. 39, s. 2. 
"R.S.O. 1960, c. 98, ss. 1 (f) (d). 



1036 Arbitration Proceedings 

Official Arbitrator, the senior judge of the County Court of 
the County of York will be sole arbitrator? 

The board of education for a city or town may expropri- 
ate land in a township for the purposes of a school site where 
the land adjoins a boundary between the city or town and the 
township/" In cases where there are different arbitrators, 
under Part XVI of the Municipal Act, for the municipality 
in which the school board is situate and in the township where 
the expropriated land is situate, who would be the arbitrator 
to determine compensation, if this power were exercised? 

A court asked to rule on these questions would furnish 
decisions which would be binding on the parties and serve as 
precedents for future cases. But the parties to an arbitration 
should not have to go to the Court of Appeal to find out what 
tribunal has jurisdiction to hear the case. 

The examples cited demonstrate the confusing conse- 
quences that arise from the conferral of jurisdiction to arbi- 
trate on several tribunals. The questions that arise in the 
course of arbitration proceedings are difficult enough, without 
any added uncertainty about the tribunal that has jurisdiction 
to act. We have assumed that section 10 of the Expropriation 
Procedures Act contains a comprehensive and mandatory code 
designating the tribunals authorized to determine compensa- 
tion. If this is not correct, section 36 (2) of the Ontario Muni- 
cipal Board Act^* increases the confusion. It reads as follows: 

"36. (2) Notwithstanding anything in any general or special 
Act, where land or other property has been expropriated 
under the authority of any general or special Act all claims 
for compensation or damages by reason of such expropria- 
tion shall, where the expropriating body so elects by notice 
in writing, be heard and determined by the Board, and where 
such election is made sections 28, 30, 31, 32 and 36 of The 
Public Works Act, except as other^vise provided in the Act 
authorizing the expropriation, mutatis mutandis apply." 

We have assumed, and we think rightly, that section 1 of 
the Expropriation Procedures Act,^*^ by reason of section 2(1) 
thereof, prevails over section 36(2) of the Ontario Municipal 

"Schools Administration Act, R.S.O. I960, c. 361, s. 65(2). 

"R.S.O, 1960, c. 274, s. 36(2). 

^"Ont. 1962-63, c. 43, s. 2(1), and s. 10, as re-enacted bv Ont. 1965, c. 38, s. 2. 



Chapter 6S 10.'}? 

Board Act. However, legislation with regard to expropriation 
should be clear and unequivocal. The recent case oi Re Proud 
Homes Limited and Hamilton Board of Education, -^^ furnishes 
an example of litigation arising out of the legislation we have 
been discussing. The issue arose in an arbitration commenced 
before the Ontario Municipal Board. The (question was 
whether the Board or the senior judge of the county court 
Avas the proper arbitral tribunal to fix compensation for land 
expropriated by the Hamilton Board of Education. After the 
arbitration had been commenced, a case was stated by the 
Ontario Mimicipal Board for the opinion of the Court of 
Appeal as to whether it had jurisdiction in the matter. The 
court held that the senior judge of the county court was the 
proper person to act as arbitrator. In the next chapter we 
make recommendations for legislative action to clear up this 
confusion. 

FEES OF ARBITRATORS 

The present law concerning arbitrators' fees has been 
criticized with justification. Under section 12 of the Munici- 
pal Arbitrations Act,-^ the "fees and expenses" of the Official 
Arbitrator are payable by the respective parties to the arbitra- 
tion as indicated in that section. No scale of fees and expenses 
is provided in the legislation. 

Prior to 1956, the Official Arbitrator w^as entitled to be 
paid for his sei'\'ices while sitting on any arbitration at the 
rate of $30 per day, or a proportionate part thereof where less 
than a whole day was taken, and 310 where he convened the 
hearing but it w^as adjourned at the recjuest of one of the 
parties.-- This section was repealed in 1956 for reasons that 
are not apparent.-^ The amount of fees payable to an Official 
Arbitrator now appears to be governed only by a "rule of 
thumb". An extract from the reasons for judgment of the 
Court of Appeal in W. Harris 6- Co. Ltd. v. Municipality of 
Metropolitan Toronto r^ shows the scale of the fees the parties 

=="[1966] 2 O. R. 378 (C.A.). 

=='R.S.O. 1960, c. 250. 

"Muincipal Arbiiralions Act. R.S.O. 1950, c. 244, s. 12. 

-'"Ibid., s. 12. as repealed bv Out. 1956, c. 51. s. 3. 

-'[1965] 2 O. R. 135. 



1038 Arbitration Proceedings 

were required to pay the arbitrator in that case (the Senior 
Judge of the County Court of the County of York) and to his 
clerk and reporter. "This hearing having extended over a 
period of approximately ten days, the arbitrator's fee was fixed 
at $2,000. ()() calculated at $200.00 per diem, the clerk's fee at 
$50.00 and the reporter's fee at $500.00, in all $2,550.00, of 
which the appellant's share would be $1,275.00.""'^ 

In Canadian Memorial Chiropractic College v. Munici- 
pality of Metropolitan Toronto,-^' the fee of the junior 
judge was $7,500. In his account, this was expressed to 
be for preparing for the case prior to the hearing, hearing it 
(approximately fifty-six days) and preparing reasons. In addi- 
tion, a clerk's fee of $100 and a reporter's fee of $127 ("re 
transcript of argument") were charged. The total account was 
$7,727.00. This was required to be paid by the parties before 
the award was delivered. 

When a claim is heard by the Ontario Municipal Board, 
no "fee or expense" is payable to the Board beyond fees 
directly relating to the proceedings before the Board, which 
are remitted by the Board to the Treasurer of Ontario."'^ 
The services of the members of the Board and its staff are, as 
in the case of the judges and staff of the regular courts, paid 
for out of public funds. 

It is wrong that there should be a difference between the 
cost to the parties to arbitrations before a judge or an Official 
Arbitrator, and arbitrations before the Ontario Municipal 
Board. The accident of what legislation applies to a given case 
dictates what tribunal will be the arbitrator, and the same 
accident dictates the burden of costs imposed on the parties 
to the arbitration— a burden that is very substantial when 
small property owners' interests are involved. 

No person should be obliged to pay a fee for services per- 
formed under statutory authority which are of a judicial 
character. 

Elsewhere in this Report-"' wg have dealt with the matter 
of judges' receiving remuneration in addition to their regular 

''Ibid., 141. 

-»[1967] 1 O. R. 244. 

"Ontario Municipal Board Act. R.S.O. 1960, c. 274, s. 98(2). 

^*See Chapters 45, 46 supra. 



Chapler 6S 1039 

salaries and allowances. We have indicated that such a prac- 
tice is improper in principle and. in our view, illegal. Apart 
from the legal aspects discussed in Chapter 45, county or dis- 
trict court judges as sole arbitrators are not entitled to the fees 
and expenses provided for Official Arbitrators in section 12(1) 
of the Municipal Arbitrations Act.-'' 

Section 347(2) of the Municipal Act provides that "the 
provisions of The Municipal Arbitrations Act, as to procedure 
and appeals, apply to arbitrations held and awards made by 
the judge", i.e., when acting as sole arbitrator, lliis pro- 
vision deals only with procedure and appeals. It does not 
confer substantive rights on county and district court judges 
to collect fees and expenses provided for Official Arbitrators by 
section 12 of the Municipal Arbitrations Act. The subject of 
fees and expenses cannot be said to be comprehended by the 
words "procedure and appeals". Very much clearer language 
would be required to impose on a party to an arbitration an 
obligation to pay the fees lo the presiding judge, even if the 
Legislature had power to pass such legislation.^" 

In the two examples '\ve cited the total fees and expenses 
included items for clerks and reporters. These would only be 
proper if they could be considered to be part of the "fees and 
expenses of the Official Arbitrator" within the meaning of 
section 12 (1) of the Municipal Arbitrations Act. 

Obligations on parties to an arbitration to pay for the 
services of the staff of the arbitrator should not be imposed by 
obscure language. 

In our opinion, the fees and expenses system, with regard 
to arbitrations arising out of expropriation proceedings, is 
indefensible and should be abolished. 

INDEPENDENCE OF ARBITRATOR 

As we have indicated, Vv here a municipality has an Official 
Arbitrator it may dismiss him by merely repealing the by-law 
making the Municipal Arbitrations Act applicable to the 
municipality,^^ or by passing a by-law making the Ontario 

'"R.S.O. 1960, c. 250. 

^°See Chapter 45 supra. 

''^Municipal Arbitrations Act, R.S.O. 1960, c. 250, s. 15(2). 



1040 Arbitraiion Proceedings 

Municipal Board the sole arbitrator for the uiunicipality.^- 
Likewise, the sole arbitrator of a municipality can effectively 
be excluded from hearing claims against the municipality by 
the council passing by-laws under the Municipal Arbitrations 
Act,^-^ or the Municipal Act.^^ Conversely, the municipality 
can, by repealing a by-law making the Municipal Board the 
arbitrator, dismiss the Board as its sole arbitrator. 

It is wrong in principle that one of the parties to arbitra- 
tion proceedings should ha\'e a right of election between 
arbitral tribunals, as conferred by the Municipal Arbitrations 
Act^'^ and the Municipal Act"*^; or, put differently, should 
have power in effect to dismiss the arbitrator from his or its 
present position as far as future cases are concerned. This is 
doubly wrong where the arbitrator is paid fees while presiding 
at arbitrations. 

ARBITRAL FUNCTIONS OF THE ONTARIO 
MUNICIPAL BOARD 

The functions and duties of the Ontario Municipal 
Board, hereinafter referred to in this chapter as "the Board", 
are further dealt ^\ith in Report Number 2. However, it is 
necessary to make some reference here to those functions as 
they relate to arbitration in expropriation proceedings. 

The members of the Board are appointed by the Lieu- 
tenant Governor in Council and "shall hold office during 
pleasure".^' The Board may be the arbitral tribunal in cases 
arising under the Expropriation Procedures Act,^^ which in- 
volve claims against municipalities as defined in the Depart- 
ment of Municipal Affairs Act, and also where claims are made 
against the provincial government. ^^ \\^e again emphasize that, 
as an important matter of principle, it is wrong for the decid- 
ing tribunal in cases where the issues are solely judicial, and 
they are solely judicial in compensation cases, not to be com- 

^'-Municipal .\ct, R.S.O. 1960, c. 249. s. 348(1). 

^'"R.S.O. 1960, c. 250, s. 15 (1). 

''^R.S.O. 1960, c. 249, s. 348 (1). 

^'R.S.O. 1960, c. 250. s. 15(1) (2). 

^"R.S.O. 1960, c. 249, s. 348 (1). 

"Ontario Municipal Board Act, R.S.O. 1960. c. 274, s. 7. 

"^'Ont. 1962-63, c. 43, s. 10(1) (c), as re-enacted by Ont. 1965, c. 38, s. 2. 

^"Ibid., s. 10(3), as re-enacted bv Ont. 1965, c. 38, s. 2. 



CIuiIjUt 6S 1041 

pletely independent from both parties. When the Board hears 
claims against the pro\'incial government, this principle is 
violated. In making this connncnt we wish to make it abso- 
lutely clear that we are not suggesting that any members of the 
Ontario Municipal Board have failed to act independently in 
cases in\ohing the provincial government which fixes and 
pays their salaries. We have the highest respect for them and 
the manner in which they endeavour to discharge their diverse 
and difficult duties. This is not the point. The point is that 
the parties who are contesting claims with the provincial 
go\'ernment may feel that the Board may be influenced in its 
decisions by its lack of independence from the government. 

The Board exercises a \'ery wide jurisdiction o\'er many 
subjects in addition to that conferred on it under the Expro- 
priation Procedures Act. 7 he Act puts the members in a most 
difficult position in performing the duties imposed on them. 

A passage from a judgment^" of the Honourable Mr. Jus- 
tice Kelly sets out with great clarity many of the difficulties 
that arise in clothing a board with powers, duties and respon- 
sibilities, some of which conflict with each other: 

"It is clear, I think, that the Board has not appHed the correct 
principles in determining the amount to be paid to the appel- 
lant by the authority. Normally, therefore, the matter would 
be remitted to [the] Board foi reconsideration. In the case at 
bar, ho^vever, there appear to be cogent reasons militating 
against this course. Relevant legislation entrusts to the Board 
a number of different duties to be discharged by it in 
Aarious capacities; the combined result is really an embarrass- 
ment to the Board and such as to make it extremely difficult 
for it to proceed objectively to determine the compensation to 
be payable to the appellant or to anyone in a position similar 
to that of appellant (sic). The Board, by virtue of certain 
sections noAv to be found in the Planning Act Avas required 
to pass upon the zoning and flood-control by-la^s's of the town- 
ship before they became effective. The Board would also be 
required to review and pass upon any future by-law of the 
tOAvnship to vary the zoning of appellant's subject property 
and of the other properties o^vned by the appellant adjacent 
thereto. One of the questions to be determined in settling the 
amount of compensation is the probability, as of the date of 
expropriation, of the change in the zoning regulations to 



*°Valley Improvement Co. Lid. v. MrlrujioHUin Toronto and Region Con- 
servation Authority, [1961] O.R. 783. 



1042 Arbitration Proceedings 



t>" 



permit appellant's contemplated uses. In another capacity the 
Board '^\ill be called upon to approAC capital expenditures to 
be borne by the to^vnship as a result of its obligation to furnish 
funds to the Aiuhority for its flood control and conservation 
^vorks; thus the very amoinits payable by the Conserv^ation 
Authority as compensation to the appellant will fall in part to 
be borne by the township and will be the subject-matter of an 
application by the toAvnship to the Board for its approval qua 
capital borrowing. In these circumstances it simply does not 
have the appearance of justice that the Board be required as 
arbitrator to determine the compensation arising from the 
action of the Authority in expropriating appellant's lands. It 
is in no sense a criticism of the Board to state that the Legis- 
lature, in placing the Board in these various capacities, has 
demanded of it a standard of detachment beyond that reason- 
ably to be expected of any tribimal. Consideration of these 
matters, coupled with the fact that the Board's decision is not 
grounded upon a conflict in the evidence as to valtie or upon 
the credibility of witnesses, impels me to the conclusion that 
this Court should determine the compensation to be aAvarded 
and I now turn directly to that issue. ""^^ 

Any tribunal deciding a matter which is entirely judicial 
should decide it solely on the basis of the evidence put before 
it at the hearing. There are cases where, as show^n by Mr. 
Justice Kelly, the Board cannot enter upon a hearing to fix 
compensation, freed from other considerations and responsi- 
bilities affecting the matter. For example, the powers of the 
Board under the Planning Act^- include decisions on matters 
relating to the approval of plans of subdivision. The ripeness 
of a plan of subdivision for approval by the Minister is a 
very important element in the fixing of compensation.^^ 

BOARDS OF ARBITRATION UNDER THE 
ONTARIO ENERGY BOARD ACT, 1964 

Two different methods of arbitration to fix compensation 
are prescribed under the Act,^' depending on the subject 
matter. 



'^Ibid., 793-94. 

'"R.S.O. 1960, c. 296, s. 28 (7), as amended by Ont. 1962-63, c. 105, s. 8 (1). 
*^Tlie Board of Education for the Township of Xortli York v. Village Devel- 
opments Ltd., [195G] S.C.R. 539. 
^^Ontario Energy Board Act, 1964, (^nt. 191; 1, c. 7 !. 



Chapter 6S 1043 

(1) Where the Ontario Energy Board makes an order 
authorizing a person to inject gas into or store gas or remove 
gas from a storage area, the person authorized by the order is 
required to make to ilie owner 'lair, just and ecjuitable com- 
pensation in respect ol such gas or oil rights. . . ."^•''' The 
amoinit ol compensation is "determined by a board of arbitra- 
tion in a manner prescribed in the regulations".^" The rele- 
\'ant regulation provides that the arbitration board shall con- 
sist of not fewer than three and not more than five members, 
as the Lieutenant Governor in Council may from time to time 
determine. The members of the arbitration board are ap- 
pointed by the Lieutenant Governor in Council. ^^ 

(2) Where the Ontario Energy Board has given any 
person Iea\e to expropriate land for the purpose of construct- 
ing a pipeline or station, the compensation is determined by 
a board of arbitration of one or more persons appointed by 
the Minister.^'' 

There is a right of appeal in both cases to the Ontario 
Municipal Board and from tliat Board to the Ontario Court 
of Appeal, with leave of the court upon any c[uestion of law^ or 
jurisdiction. The appeal to the Ontario Municipal Board is 
by way of a hearing de novo. 

What appears to have been intended to be a "summary" 
procedure is a very complex one. The vnifortunate owner is 
faced with t^vo arbitrations on the merits, w4th full hearings 
with the same or other witnesses and an appeal on questions 
of law and jurisdiction to the Court of Appeal, and, under the 
Supreme Court Act, an appeal to the Supreme Court of Can- 
ada. A very formidable procedural weapon is placed in the 
hands of expropriating authorities when the owner may be 
subjected to such a series of appeals. 

A case was put before this Commission in which a cor- 
poration was given the right to store gas in 1958 on lands 
owned by farmers in western Ontario. At the time of the 
hearing before this Commission (January, 1965) the owners 
of the lands had not yet received a final decision with respect 

''■Ibid., s. 21 (2) (a). 

'"Ibid., s. 21 (3). 

*^0. Reg. 323/64, s. 3. 

^-Ontario Eiierg)' Board Act, 1964, Out. 1964, c. 74, s. 41(3). 



1044 Arbilration Proceedings 

to compensation. We are not considering the merits of this 
case, but it demonstrates the need for jealous vigilance in safe- 
guarding the interests of those who may be subject to the 
poTvers of expropriation that may be conferred under the Act. 
The arbitration boards provided for under the Act and 
its predecessor^" have heard the following number of claims: 



lybi 


— 


D 


1962 


— 


nil 


1963 


— 


nil 


1964 


— 


7 


1965 


— 


2 


1966 


— 


6 


1967 


— 


2 (first six months) 



There now appear to be four procedural stages in expro- 
priations under the Ontario Energy Board Act, 1964:^° 

(1) The negotiation; 

(2) The arbitration by appointed arbitrators under sections 
21 or 41; 

(3) The hearing de novo before the Ontario Municipal 
Board; and 

(4) The appeal on law or jurisdiction to the Ontario Court 
of Appeal. 

This is a vexatious plethora of procedures. We recom- 
mend that the authority to fix compensation for expropriations 
of land or interests in land under the Ontario Energy Board 
Act should be vested in the Lands Tribunal recommended in 
the next chapter. 

Where rights to store gas underground are gi\'en under 
the authority of the Ontario Energy Board Act, a completely 
different basis for compensation must be found than that 
which is applied where land is taken. The basis or formula 
should be defined after an investigation and report by the 
Ontario Energy Board, and applied by the Lands Tribunal. ^^ 

^"Ontario Energy Board Act. R.S.O. 1960, c. 271, ss. 14(3), 19(3). 

=°Ont. 1964, c. 74. 

"^This recommendation differs from that contained in the Report of the 
Ontario Law Reform Commission, The Basis for Compensation on Expro- 
priation (September, 1967), 63. At the time of its report, that Commission 
did not ha\e before it the recommendation made in the next chapter for a 
Lands Tribunal. 



CHAPTER 69 

Tribunal to Fix Compensation 



liiE two main factors to be considered in establishing a 
tribunal to fix compensation are: 

(1) Its independence, both in fact and in law, from all the 
parties which may ha\'e matters before it for decision; 

(2) Its general competence and experience in making deci- 
sions concernins;^ all relevant factors. 

As we have emphasized, the assessment of compensation 
in expropriation cases is a purely judicial function. It requires 
a knowledge of the relevant law and its application to the 
proven facts and expert opinions adduced in evidence. There 
is no room in this decisional process for the introduction of 
governmental policy. This dictates that a properly established 
tribunal to hear compensation claims should have the same 
independence as a court of justice. 

The in\olvement of governments at all levels in public 
projects which require the accjuisition of land will continue 
to increase, and the number of applications to determine com- 
pensation ^vill multiply. The character and competence of the 
tribunal to hear these cases must be designed not only to meet 
the present but the future needs of the Pro\'ince. 

For expropriations coming under the jurisdiction of the 
Federal Government, compensation is fixed by the Exchequer 
Court of Canada with a right of appeal to the Supreme Coiu't 
of Canada.^ 



'Except those cases coming under the Railway Act, R.S.C. 1952, c. 234. 

1045 



1046 Tribunal to Fix Compensation 

In England, since 1949, the Lands Tribunal, which has 
many of the attributes of a court, has had exclusive jurisdiction 
to determine disputed claims for compensation following com- 
pulsory purchases. - 

The basic principle that the rights of the parties and the 
compensation to be paid should be decided by judges, can 
no longer be strictly adhered to in expropriation cases. This 
principle, which has prevailed in Ontario since Confederation, 
was departed from by the giving of some jurisdiction to the 
Ontario Municipal Board, and in some instances to an Official 
Arbitrator who is not a judge. 

We recommend that a Lands Tribunal similar to the 
Lands Tribunal in England be established in Ontario with 
jurisdiction to fix compensation in all cases where the power 
of expropriation is exercised, and in those cases where statu- 
tory rights over land are exercised. 

The tribunal should consist of at least seven members. 
The chairman and two vice-chairmen should be qualified 
lawyers. The chairman should ha\'e status and salary equal 
to those of a judge of the Supreme Court of Ontario, and the 
vice-chairmen should be paid salaries equal to those of county 
court judges. Lay members should be experienced and quali- 
fied appraisers. All members should have definite tenure of 
office. Pro\'ision should be made for the enlistment of quali- 
fied persons to act as ad hoc members of the tribunal. 

Arbitrations should be heard by at least three members, 
one of whom should be a chairman or vice-chairman, except 
where the amount claimed is less than $1,000. In such cases 
the arbitration might be conducted by one member. The 
salary of the members of the tribunal and its staff should be 
paid by the Province. The tribunal should sit, when required, 
in any place in Ontario. 

There should be a right of appeal from the decisions of 
the tribunal to the Court of Appeal on all questions of law 
and fact, as is contemplated in the Expropriation Procedures 
Act.^ 



'Lands Tribunal Act, 1949, 12 & 13 Geo. VI, c. 42; see also 10 Halsbury, Laws 
of England (3rd cd.), 226. 
^'Ont. 1962-63, c. 43, s. 11. 



Chapter 69 1047 

In Ontario the diversity of tribunals exercising similar 
jurisdiction has made it difficult to achieve any uniformity of 
interloctuory and hearing procedures. If a single tribunal 
is created to hear expropriation cases, as we reconnnend, 
a luiiform code of procedure (ould be laid down, regulating 
the successive steps in all arbitration proceedings. 

A series of published reports of reasons for awards made 
by the tribunal should be made available by the government. 
These reports would tend to give uniformity to decisions in 
compensation matters and tend to facilitate negotiations for 
settlement. 



CHAPTER 70 

Arbitration Procedure 



Uniform procedure is provided under the Expropria- 
tion Procedures Act for taking land, giving notice, taking pos- 
session and compulsory negotiation, but there is no uniformity 
of procedure for the conduct of arbitrations. Each type of 
tribunal— the judge, the Official Arbitrator, boards of arbitra- 
tion under the Ontario Energy Board Act, 1964,^ and the 
Ontario Municipal Board— follows its own procedures. 

Table E to Chapter 72 demonstrates the diverse proce- 
dures followed by the three main types of arbitral tribunals in 
Ontario and the need for procedural reform. 

Even with the boards of arbitration established under 
sections 21 and 41 of the Ontario Energy Board Act, 1964, the 
procedures are different. The board of arbitration established 
under section 21 is to proceed 'in a manner prescribed in the 
Regulations".- Ontario Regulation 323/64, passed under the 
Ontario Energy Board Act, provides that the board of arbitra- 
tion shall proceed in a simimary manner and that the rules of 
procedure of the Ontario Energy Board apply. ^ These rules 
appear in Ontario Regulation 324/64. Basically, they provide 
for proceedings to be commenced by the filing of an applica- 
tion, setting out concisely the nature of the claim with certain 
prescribed details. This document serves much the same pur- 
pose as the statement of claim in a civil action. The respondent 
must file an "answer" which must "contain a clear and concise 
statement of the grounds upon which the application is op- 
posed". 

^Ont. 1964, c. 74. 

-Ibid., s. 21 (3). 

«0. Reg. 323/64, s. 3 (5). 

1048 



Chapter 70 1049 

The Lieutenant Governor in Council, under section 
41 (5), is empowered to make regulations governing the prac- 
tice and procedure of the board ot arbitration acting under 
section 41. Until such regulations are made, the practice and 
procedure of the Ontario Municipal Board apply to any arbi- 
tration luider this section. To dale, no regulations have been 
made. The practice and procedure of the Ontario Municipal 
Board, as set out in Regulation 466 of R.R.O. 1960, is similar 
to, but some^vhat more elaborate than, that of the Ontario 
Energy Board, set out in Ontario Regulation 324/64. 

As shown in Table E, the procedure before the judge 
sitting as sole arbitrator, and before the Official Arbitrator 
is governed by the Municipal Arbitrations Act. 

It is accepted that there should be uniform procedure 
leading up to arbitrations in all expropriation cases in the 
Province. This principle of uniformity should be extended to 
arbitration procedure— that applicable to the prehearing stage 
and to the hearing itself. 

If our recommendation that jurisdiction to fix compensa- 
tion be conferred on a Lands Tribunal is adopted, uniform 
procedural rules should follow as a matter of course. Even if 
this recommendation is not adopted, it is still desirable that 
the practice before any existing tribunals should be standard- 
ized, if possible. There is no reason why an owner's procedural 
rights and liabilities should be different depending on the 
nature of the expropriating authority, or on the nature of the 
arbitral tribunal. 

We do not think that rules of a comprehensive nature 
applying to other proceedings than those governing expropria- 
tion matters should be made applicable to such proceedings, 
as is the case of the rules of the Ontario Municipal Board"* 
and the Ontario Energy Board. "^ 

In Report Number 2 we shall discuss the many and 
diverse duties and responsibilities of the Ontario Municipal 
Board. Many of these duties and responsibilities bear little, if 
any, resemblance or relation to each other; e.g., the approval 
of a debenture issue by a municipality and an arbitration to fix 

^R.R.O. I960, Reg. 466. 
''O. Reg. 324/64. 



1050 Arbitration Procedure 

compensation in an expropriation case. Rules should be made 
^vhich are designed to bring about an effective resolution of 
the substantive issues involved in a particular type of case. 
General rules may be useful in serving a general purpose, but 
rules should be specially drawn governing arbitration pro- 
ceedings in expropriation cases. 

Certain specific aspects of procedure should be considered 
in formulating rules, whether they be provided in the Expro- 
priation Procedures Act or be made by a rule-making body. 

NOTICE OF ARBITRATION 

Prior to the amendment to the Expropriation Procedures 
Act in 1965,^ there was express provision for the method of 
commencement of arbitration proceedings. The expropriating 
authority or the owner could serve notice of arbitration upon 
the other of them, stating that he or it required the compensa- 
tion to be determined under the Act.' Under this provision, 
the senice of the notice of arbitration w^as the first formal step 
leading to the arbitration hearing. Section 9 was repealed in 
1965 and a new section 9 substituted.^ This section does not 
contain any requirement for a notice of arbitration, or the 
service of any document. It concludes merely with the state- 
ment that "where the expropriating authority and the owner 
are in agreement on the matter [to avoid formal negotiation] 
they may have the compensation determined by arbitration 
under section 10". There should be a formal procedural step 
which gives rise to rights and imposes liabilities in arbitration 
proceedings. Under section 9a (7),^ a notice of arbitration may 
be ser\'ed where negotiation proceedings do not result in a 
settlement. The same provision should obtain where the 
parties agree under section 9 to forego negotiation proceed- 
ings. 

PLEADINGS 

Table E to Chapter 72 shows the lack of uniformity con- 
cerning the service of documents in the nature of pleadings. 
Pleadings in ci\ il cases, originally intended to define and 

«Ont. 1962-63, c. 43, ss. 9, 9a, 10, as re-enacted by Ont. 1965, c. 38, s. 2. 
''Ibid., s. 9, prior to its enactment in 1965. 
^Ibid., s. 9, as re-enacted by Ont. 1965, c. 38, s. 2. 
"Ibid., s. 9a, as enacted bv Ont. 1965, c. 38, s. 2. 



Chapter 70 1051 

narrow the issues before the court and to give the opposite 
party notice of the case he had to meet, eventually developed 
into technical monstrosities used more for strategic purposes 
than for elucidating the truth. Long drawn out and expensive 
contests over the pleadings were engaged in. These bore no 
relation to the object of the litigation— a just decision on the 
merits of the matter in dispute. 

In modern times pleading has been simplified, but it still 
has its technical aspects. The Rules of Practice and Procedure 
require that "pleadings shall contain a concise statement of the 
material facts upon which the party pleading relies, but not the 
evidence by which they are to be proved. . . ."^'^ This is a 
simple statement, but there is still much interpretative juris- 
prudence. Many interlocutory motions arise with reference to 
pleadings, and not infrequently causes of action are denied to 
a party because of faulty pleading. The process of detailed 
pleading is not suitable for compensation procedure in expro- 
priation cases. 

It should be sufficient in ordinary cases for the claimant 
to set out in his notice of arbitration, or in reply to a notice 
served by the expropriating authority, a simple statement of 
the nature of his claim. Usually this could be done very briefly 
and the documents might be drawn by a layman. In compli- 
cated cases in\'olving such things as disruption of business, if 
the claim is not set out with sufficient particularity, the tribu- 
nal can order further particulars. In no case should the state- 
ment of the nature of the claim be used as a technical barrier 
so as to exclude legitimate elements in a claim for compensa- 
tion. In proper cases the expropriating authority should be 
required, at the risk of costs, to admit or deny elements of 
compensation claimed. 

The negotiation procedure established in 1965 should 
make it quite simple to prepare the necessary statements. 

PRODUCTION AND DISCOVERY 

The present practice with respect to the production of 
documents and discovery is far from uniform. A reference to 
Table E shows that the Ontario Municipal Board may make 

^"Rules of Practice and Procedure of the Supreme Court of Ontario, Rule 143. 



1052 Arbiiration Procedure 

orders for examinations and require documents to be pro- 
duced and admitted. In proceedings to which the Municipal 
Arbitrations Act'' applies, the Official Arbitrator is given all 
the powers of a judge of the Supreme Court, including those 
relating to the production of books and papers, and the time 
and place of taking examinations. No specific rights are given 
under these provisions, nor are the rights of production de- 
fined. We emphasize again that it is not desirable that the 
proceedings of the ordinary courts should be introduced into 
arbitration cases. Informality should prevail, but informality 
should not be allo^ved to destroy the effective determination 
of contested cases. 

There is only one issue in a compensation case: How 
much should the expropriating authority pay? There may be, 
however, different elements in this issue, depending on the 
nature of the property taken. With these elements this Com- 
mission is not concerned. '- 

Production 

The proceduie of the Lands Tribunal of England forms 
a useful precedent. It provides a practice that appears to have 
been satisfactory. 

Rule 42 (4) of the Lands Tribunal Rules, 1963, requires 
the parties to furnish to each other, through the Registrar of 
the Tribunal, "a copy of each of the following documents 
relating to the evidence to be given by his expert witnesses . . . 

(i) every plan and valuation of the land or hereditament 
Av'hich is the subject of the proceedings (including particulars 
and computations in support of such valuation) ^vhich it is 
proposed to put in evidence; 

(ii) a statement of any prices, costs or other particulars and 
any plans relating to a property or properties other than the 
said land or hereditament ^vhich are proposed to be given in 
evidence in support of any such valuation, or a statement that 
no such prices, costs, particulars or plans ^vill be relied upon." 

Rule 42(6) provides: 

"42. (6) If an application for leave to call more than one, or 
more than one additional, expert Avitness is made at the hearing 

"R.S.O. 1960, c. 250, s. 1 (2) (e), as amended by Ont. 1965, c. 78, s. 1. 

^-'The basis of compensation has been dealt with by the Ontario Law Refonn 
Commission. See Report of the Ontario Law Reform Commission, The 
Basis for Compensation on Expropriation (September, 1967). 



Chapter 70 1053 

and is granted by the Tribunal, or if at the hearing any party 
seeks to rely upon any plans, valuations or particulars which 
appear to the Tribunal not to have been sent to the registrar 
in accordance ^\ilh the foregoing provisions of this Rule, the 
Tribunal siiall, unless it is satisfied that no prejudice to any 
party will arise, adjourn the hearing on such terms as to 
costs or other\vise as it thinks fit." 

The Court of Appeal in England has held that, where 
paragraph 42(6) applies, the Lands Tribunal must adjourn 
the hearing in accordance with that paragraph; it may not 
exclude properly tendered material evidence.'"' 

The Lands Tribunal Rules further provide: 

"44. Any party to any proceedings shall furnish to the regis- 
trar on his request any document or other information which 
the Tribimal may require and which it is in his power to 
furnish and shall afford to all other parties to the proceed- 
ings an opportimity to inspect such documents (or copies of 
such docmnents) and to take copies thereof; 
Provided that nothing in this Rule shall be deeined to require 
the furnishing of any information which it ^vould be contrary 
to the public interest to disclose. 

45. If it appears to the Tribimal that any party to proceedings 
before the Tribunal has failed to send a copy of any document 
required under these Rules to be sent to any other party or 
to the registrar, the Tribunal may direct that a copy of the 
document shall be sent as may be necessary and that the 
further hearing of the proceedings be adjourned, and may in 
any such case require the party at fault to pay any additional 
costs occasioned thereby." 

Our discussions with Sir William Fitzgerald, the Chair- 
man of the Lands Tribunal, and H. P. Hobbs, a member of the 
Tribunal, revealed that the usual practice in England is for 
expropriating authorities to make frank disclosure of their 
valuations to owners at an early stage in the negotiations, and 
to advise the owner as to the exact amount of the offers made 
to other owners in the area affected by the work. Undoubt- 
edly the Rules have promoted this practice. This is a practice 
of exchange of information not dissimilar to that followed in 
Ontario in many cases of disputed \'aluations for succession 
duty purposes where there is a free exchange of valuations, 

'"Routh's Trustees v. Central Land Board, 8 P. and C.R. 290. 



1054 Arbitration Procedure 

if not in writing, at least, orally, between the Treasury Depart- 
ment and the estate representatives. 

Regulations passed under the Ontario Municipal Board 
Act recognize that there are proper cases where production 
should be made. 

We recommend: 

(1) That the parties to expropriation proceedings should 
be required to produce to the parties adverse in interest 
copies of the following documents relating to the evidence 
to be given by expert witnesses: 

(a) Plans and valuations of the land which is the subject 
of the proceedings, including particulars and computa- 
tions in support of such valuations, which are to be sub- 
mitted in evidence; 

(b) A statement of any prices, costs or other particulars, 
and any plans relating to properties other than the land 
in question, which are proposed to be given in evidence, 
or a statement that no such prices, costs, particulars or 
plans will be relied on. 

(2) Similar provisions to those contained in Rule 42 (6) of 
the Lands Tribunal Rules of England should be adopted; 

(3) Any party to the proceeding should have a right to 
apply to the Registrar of the Tribunal for production and 
inspection of any documents (other than privileged com- 
munications) Vv'hich the Registrar may deem properly pro- 
ducible and rele\'ant to the issues involved in the arbitra- 
tion. The Registrar should have powder to fix the terms of 
production and the time and place of inspection. Privilege 
should not extend to appraisals and other material expressly 
directed by the rules to be produced. 

Discovery 

We do not think oral discovery is necessary in all cases. 
It could be vexatious and used to delay the final disposition 
of arbitrations. But there are cases w^here discovery may be 
essential to a proper hearing and would shorten the arbitra- 
tion hearing. We think that the Registrar should have the 



Chapter 70 1055 

power now exercised by the Ontario Mnnicipal Board^^ to 
order examinations lor discovery to be held in special cases, 
where an examination is shown to be necessary. 

Although tlie negotiation procedure provided in the 1965 
amendment to the Expropriation Procedures Act is carried 
on without prejudice, it should provide both parties with 
much ot the inlormation that would be iorthcoming on an 
examination for discovery. 

The recommendations wc ha\'e made concerning pro- 
duction and disco\'ery are designed to facilitate negotiation 
and voluntary settlements. They should assist in crystalliz- 
ing issues before the arbitration takes place, thereby reducing 
the element of surprise. The penetrating statement of Mr. 
Justice Frankfurter in Johnson v. U.S.,^^ that "[a] trial is not 
a game of blind man's buff", applies with great force to an 
arbitration to fix compensation for property taken without 
the owner's consent. Any sporting theory of a trial in the 
ordinary courts of justice fails to appeal to an owner in an 
arbitration, when the resources of all tax-payers, including 
those of the owner himself, are used to gather the factual 
information and pay for the appraisals on which the expro- 
priating authority relies. In fairness, the contending parties 
in an expropriation case ought not to be treated as ordinary 
private litigants. 

INTERLOCUTORY APPLICATIONS 

Interlocutory procedure in England is go\'erned by the 
following rule of the Lands Tribunal: 

"31. (1) Except where these Rules otherwise provide, any 
application for directions of an interlocutory nature in con- 
nection -with any proceedings shall, unless other^vise ordered 
by the President, be made to the registrar." 

Under the regulations go\'erning procedure before the 
Ontario Municipal Board, ^'■' where any matter is not expressly 
pro\'ided for, the rules of practice under the Judicature Act— 

^^R.R.O. I960, Reg. 466, s. 14. 
^'SS?> U.S. 46, 54 (1947). 
'"R.R.O. 1960, Reg. 466. 



1056 Arbitration Procedure 

applicable to procedure in the ordinary- courts— are to be fol- 
lo^ved as far as they are applicable, as determined by the 
Board, ^' Interlocutory applications are dealt with by the 
Board.^« 

It is essential that interlocutory applications should be 
kept to a minimum in arbitration proceedings. These should 
be heard by a legally qualified member of the Lands Tribunal, 
or the Registrar of the Tribunal if he is legally qualified. We 
suggest that, unless the Chairman otherwise directs, the Regis- 
trar should deal with interlocutory matters. 

^'Ibid., s. 2. 
^^Ibid.,s. 18. 



CHAPTER 71 

The Arbitration Hearing 



It is not our purpose to formulate detailed rules for 
the conduct of arbitrations. We only indicate some funda- 
mental matters that should be clarified. Some basic rules are 
provided for hearings before the Ontario Municipal Board/ 
but they are inadequate for the orderly and uniform conduct 
of hearings and no rules are provided for other arbitrations. 

WHO SHOULD BEGIN 

We received a submission that the landowner should not 
be obliged to present his case first at the hearing. It was felt 
that this gave the expropriating authority a tactical advantage. 
In England the person claiming compensation shall begin, 
and the other parties are heard in the order that the tribunal 
may determine. - 

In expropriation arbitrations conducted by the Excheq- 
uer Court of Canada the owner, notwithstanding that he may 
be the defendant in the proceedings, is required to lead his 
evidence first and has the right to reply to any evidence ad- 
duced by the expropriating authority.-* We think this is the 
proper procedure to be followed, but it should not be implied 
that the order of the hearing places an onus of proof on the 
owner. This we shall deal with later. 



^R.R.O. 1960, Reg. 466, ss. 10-18. 

'Lands Tribunal Rules, 1963 (S.I. 1963, No. 483), Rule 35(1). 
''^General Rules and Orders of the Exchequer Court of Canada, Rule 158. 

1057 



1058 The Arbitration Hearing 

TAKING A VIEW 

There should be a rule empowering the tribunal to take 
a view of the expropriated property. This naturally flows 
from the nature of the issue in the proceeding. The board of 
negotiation under the Expropriation Procedures Act as 
amended in 1965," is required "to inspect the land that has 
been expropriated". It is equally important that the arbitral 
tribunal at least be empowered to do so, but its right of inspec- 
tion should be wider than that provided in civil cases by Rule 
265.^'' The tribunal should have a right to consider what it 
saw as relevant evidence adduced in the case. It should set 
out clearly in its reasons for its award what weight it gave to 
the \iew taken and why it gave weight to it. 

EVIDENCE 

We do not think there should be any special rules of 
evidence in expropriation cases. To attempt to formulate 
special rules might do more harm than good. Special issues 
frequently arise, such as the admissibility of evidence showing 
allegedly comparable sales, offers to purchase, listings, settle- 
ments and awards in other cases. W^e have not received any 
submission critical of the rulings on these matters by the exist- 
ing tribunals of original jurisdiction or appellate tribunals. 
Considerable latitude should be permitted in the admission of 
evidence of this character, with concentration more on the 
weight of the e\'idence than on its admissibility. 

ONUS OF PROOF 

The language used in three Canadian cases'* indicates 
that the onus is on the owner to pro\'e the value in expropria- 
tion arbitrations. This burden, in so far as it relates to the 
proof of market value, should not be placed on either party to 
these proceedings. Land that has been taken has a market 

"Expropriation Procedures Act, Ont. 1962-63, c. 43, s. 9a(6), as enacted by 

Ont. 1965, c. 38, s. 2. 
^* Rules of Practice and Procedure of the Supreme Court of Ontario, Rule 265. 
'The King v. Kendall (1912), 14 Ex. C. R. 71, 86; The King v. W. D. Morris 

Realty Limited, [1943] Ex. C. R. 140, 154-55; and Re Duthoit and Province 

of Manitoba (1966), 54 D.L.R. (2d) 259, 267. 



Chapter 71 1059 

value. Arbitration proceedings to determine market value are 
more in the nature ol an investigation than a trial. However, 
the onus of proof of items of special value or consecjuential 
damage should be on the owner. This is in accordance with 
tlie generally accepted principle: he who has peculiar knowl- 
edge of, and aflirms a particular set of facts, should bear tlie 
onus of proof of those facts. 

NUMBER OF EXPERT WITNESSES 

Paragraph 6 in lable E'' to Chapter 72 indicates that 
the law concerning the number of expert witnesses before 
arbitral tribunals is not clear. A real possibility of unfairness 
to owners exists if they are met at a hearing with a battery of 
experts produced by the expropriating authority. 

In England the relevant Lands Tribunal Rule reads as 
follows: 

"42. (1) This Rule applies to any proceedings before the 
Tribunal except an appeal from the decision of a local valua- 
tion court. 

(2) Not more than one expert witness on either side 
shall be heard unless otherwise ordered: 

Provided that, Avhere the appeal or reference includes a claim 
for compensation in respect of minerals or disturbance of 
business, as well as in respect of land, one additional expert 
witness on either side on the value of the minerals or, as the 
case may be, on the damage suffered by reason of the dis- 
turbance may be heard. 

(3) An application for leave to call more than one, or 
more than one additional, expert witness may be made to the 
registrar in accordance with the provisions of Rule 31 or may 
be made to the Tribunal at the hearing." 

A profession of surveyors has been developed in England. 
They are highly skilled in making valuations with a knowl- 
edge of all the elements that should be taken into account. 
That such witnesses would be available throughout Ontario 
when required is questionable. It may well be that it would 
be a hardship to restrict the parties to one expert in the first 
instance. Different elements in the valuation of a claim may 

'See p. 1068 infra. 



1060 The Arbitration Hearing 

have to be considered, e.g., construction costs, business dis- 
turbance, planning, zoning and other aspects of land use 
control. 

Until there are in Ontario a sufficient number of qualified 
appraisers, two experts should be permitted to give evidence 
■\vithout special leave. 

STATED CASE 

In certain cases the substantial issue may turn on a point 
of law, such as whether the loss of or interference with a par- 
ticular right is compensable under the relevant legislation. 
For example, in Re Thomson Lumber and Building Materials 
Ltd. et al and Minister of Highways,^ the main issue was 
whether the deprivation of an ow^ner's right of access to a 
highway ^vas compensable under the Highway Improvement 
Act. If it is apparent early in the proceedings that a point of 
law will govern the result, much time and expense might be 
saved by stating a case for the opinion of an appellate court. 
Such a procedure is now provided by the Ontario Municipal 
Board Act.' We recommend that the Expropriation Pro- 
cedures Act should make provision for a stated case in all 
expropriation arbitrations.^ 

WRITTEN REASONS FOR DECISIONS^ 

The factors that ha\'e to be taken into consideration and 
the detailed submissions that are often made, together with 
the unrestricted right of appeal in compensation cases, make 
it imperative that reasons for decision should be fully ex- 
pressed in writing. There is nothing in the statutes or regula- 
tions requiring arbitrators in expropriation cases to give 
reasons, apart from vague references in the Municipal Arbitra- 
tions Act.^*^ Where the official arbitrator proceeds partly on 
view and partly on special knowledge or skill possessed by 

"[1964] 2 O.R. 175 (C.A.). 
'R.S.O. 1960, c. 274, s. 93. 

^Appeals by way of stated case are discussed in Chapters 34 and 51 supra. 
^\Kt discuss the subject of written reasons for decisions of tribunals in 
Chapter 14 supra. 
"R.S.O. 1960, c. 250. 



Chal>ler 71 lOfil 

himself, he shall put in writing as part ol his reasons a state- 
ment of such matter sufficiently full to allow the Court of 
Appeal to determine the weight that should he attached to 
it.^^ In addition, the arbitrator is re(juired to file the award, 
the exhibits and "the reasons for his decision" in the office of 
the registrar of the Court of Appeal. ^- 

riiere should be a specific retjuirement, either by a 
statute or by rules, that the tribunal should be recjuired to give 
written reasons for its decisions in all cases. Pro forma reasons 
of the sort that are sometimes given by arbitral tribunals other 
than the Ontario Municipal Board ought not to be sufficient. 
Some arbitrators adopt a sort of formula designed to make the 
award impregnable in the Court of Appeal, rather than to in- 
form the Court of Appeal and the parties what the process of 
reasoning was. On the other hand some arbitrators give no 
reasons at all. The parties are entitled to written reasons for 
an award which demonstrate the reasoning by which the 
a^vard was arrived at. 

SHORTHAND REPORTERS 

The right of appeal in arbitration cases would not be 
meaningful unless the proceedings were properly reported by 
a fully qualified court reporter. This should be expressly 
provided for in the rules. 

COSTS 

The expenses incurred by an owner for solicitors' and 
valuators' fees are elements to be considered in determining 
the basis of compensation where land has been expropriated. 
This matter has been the subject of a reference to the Ontario 
Lavv' Reform Commission and has been dealt with in its 
report.^'' 

''Ibid., s. 4. 
''Ibid., s. 5. 

"See Report of the Ontario Law Reform Commission, The Basis for Com- 
pensation on Expropriation (September, 1967). 



CHAPTER 72 

Appeals 



1 HE rights of appeal and the practice on appeals are 
governed by the following provisions of the Expropriation 
Procedures Act:^ 

"11. (1) The expropriating authority or the o^vner may appeal 
to the Court of Appeal from any determination or order of 
a judge, an official arbitrator or the Board under section 10. 

(2) The practice and procedure as to the appeal and 
proceedings incidental thereto are the saine mutatis mutandis 
as upon an appeal from the High Court, except that the 
appeal may be taken at any time within six weeks from the 
day the determination or order was sent by registered mail to 
the parties, and the determination or order shall be deemed to 
have been received on the second day foUo^ving its mailing, 
and the period of any vacation of the Supreme Court shall 
not be reckoned in computing such six ^veeks." 

The right of appeal is one thing; the powers conferred 
on the Cotirt of Appeal is quite a different thing. Without 
power in the Court of Appeal, the right to appeal is meaning- 
less. The powers of the Court of Appeal are not clearly set 
out in the Act. The parties must look to sections 26 and 27 
of the Judicature Act- for the powers of the court. 

The words "may appeal from any determination . . ." 
would appear to confer a right of appeal on all questions of 
law or fact if the determination or order is that of a judge, 
an Official Arbitrator, or the Ontario Municipal Board "under 



^Ont. 1962-63, c. 43, s. 11. 
=R.S.O. 1960, c. 197. 



1062 



Chapter 72 1063 

section 10". However, section lO"* provides that where the 
expropriating authority has received its powers under sections 
21 and 41 ot the Ontario Energy Board Act,' 1964, the claim 
for compensation shall be determined under those sections. 
These sections, when read with section 95 of the Ontario 
Municipal Board Act."' would restrict the right of appeal to 
the Court of Appeal to (juestions of law and jurisdiction, and 
only with lea\'e of the court obtained within one month after 
the making of the order or decision sought to be appealed 
from, or within, such time as the court may allow. 

It is difficult to give a clear answer to the question: Does 
section 1 1 of the Expropriation Procedures Act apply to ap- 
peals from decisions of the Ontario Municipal Board when 
it deri\es jurisdiction under the Ontario Energy Board Act? 
If it does not and one is obliged to look to the Ontario Energy 
Board Act for the provisions respecting such appeals under 
that Act, appeals are restricted to questions of jurisdiction or 
cpiestions of la^v and they lie only where leave to appeal is 
obtained from the Court of Appeal. It is clear from section 
1 1 of the Expropriation Procedures Act that the appeals con- 
templated by that section are not restricted to any particular 
(questions and do not require leave. There does not appear 
to be any logical reason why the right of appeal from decisions 
of the Ontario Municipal Board fixing compensation under 
the Ontario Energy Board Act should be more restricted than 
that from decisions fixing compensation in other cases. 

The words used in section 11 (1) of the Expropriation 
Procedures Act are strange and unusual words to be employed 
where creating a right of appeal. The words are "may appeal". 
In creating a right of appeal the usual words are "an appeal 
lies".'"' 

If it is intended by the language used in section 1 1 of the 
Expropriation Procedures Act— when read together wdth sec- 
tions 26 and 27 of the Judicature Act— that the Court of 

"Expropriation Procedures Act, Out. 1962-63. c. 43, s. 10, as re-enacted by 

Out. 1965, c. 38, s. 2. 
'Ont. 1964, c. 74, ss. 21,41. 
"R.S.O. 1960, c. 274. 
"Judicature Act, R.S.O. 1960, c. 197, s. 26(1); Ontario Energy Board Act, 

1964, Ont. 1964. c. 74, ss. 21(4), 11(7); Ontario Municipal Board Act, R.S.O. 

1960, c. 274. s. 95; County Courts Act, R.S.O. 1960, c. 76, s. 38. 



1064 Appeals 

Appeal should have all the powers of the arbitral tribunal, 
this should be clearly stated in the Act. 

It cannot be said that there is a definite practice and 
procedure of the Court of Appeal in disposing of appeals from 
judgments of judges of the High Court. In practice the court 
views a verdict of a jury quite differently from the judgment 
of a trial judge sitting without a jury. If there is evidence to 
support the jury's verdict, the court supports it. On the other 
hand, the judgment of the trial judge is frequently set aside 
because the Court of Appeal takes a view of the evidence 
different from that of the trial judge. Which practice and 
procedure is the Court of Appeal required to follow under the 
provisions of section 11? 

We recommend that the rights of the parties to appeal 
should be well defined. The appeal should lie on both ques- 
tions of law and fact. The Court of Appeal should have power 
to give any judgment or make any orders that the arbitral 
tribunal could have made. We see no reason why the Court 
of Appeal should not be clothed with power to exercise the 
same power it exercises on an appeal from a judge of the High 
Court sitting without a jury. This may now be the law by 
reference to the Judicature Act, but it should be clearly set 
out in the Expropriation Procedures Act. 

Section 1 1 is deficient in another respect. ". . . [T]he 
appeal may be taken at any time within six weeks from the 
day the determination or order was sent by registered mail 
to the parties, and the determination or order shall be deemed 
to have been received on the second day following its mailing, 
and the period of any vacation of the Supreme Court shall not 
be reckoned in computing such six wrecks. "^ The effective 
words are: "was sent by registered mail". The usual word 
used in such circumstances is "served". "Serve" is defined 
in the Act to mean "to serve personally or by registered letter 
addressed to the person to be served at his last known address, 
or, if that person is unknown or if his address is unknown, by 
publication once a week for three weeks in a newspaper having 
general circulation in the locality in which the land concerned 
is situate".^ 



^Expropriation Procedures Act, Ont, irK)2 6". c. 43. s. 1 1 (2). 
^Ibid., s. 1 (h). 



Chapter 72 1065 

In using the word "sent" instead of the word "served", 
as defined in the Act, the statute makes provision for the 
extinguishment of rights of appeal by loose procedure, or even 
by a deliberate misuse of the procedure. The following ques- 
tions or matters of vital importance arise: 

(1) On whom is placed the obligation "to send" the de- 
termination or order to the parties? 

(2) To what address must the determination or order be 
sent? To general delivery? To the address named in the 
claim, which may have been changed by reason of posses- 
sion having been taken from the owner? 

(3) No provision is made for unusual circumstances; e.g., 
the owner may ha\'e died between the hearing and the 
deli\ery of the determination or order; there might be a 
post office strike delaying its deli\ery; it may have been 
mailed by accident to the wrong address; the owner might 
be sick and in hospital, unable to look after his personal 
affairs. 

Many other unusual circumstances might arise, but no 
matter what the circumstances might be, the owner is 
"deemed" by the statute to have received the determination 
or order on the second day following its mailing, whether he 
has received it or not, and the time for appealing expires 
within six weeks of the day the determination or order "was 
sent". This is harsh and unconscionable legislation. It 
operates to the benefit of expropriating authorities and against 
the interest of unfortunate owners. 

Under the Ontario Municipal Board Act, the Board is 
given power to extend the time within which anything is 
required to be done, "if the circumstances of the case in its 
opinion so require"." The Rules of Practice and Procedure 
governing procedure in the Supreme Court and in the county 
courts provide for the extension of time within w^hich any- 
thing may be required to be done in any proceedings.^*^ But 
these are impliedly excluded by the provisions of section 

"R.S.O. 1960, c. 274, s. 89. 
"Rules of Practice and Procedure of tlie Supreme Court of Ontario, Rule 178. 



1066 Appeals 

1 1 (2)." The Couri of Appeal or a judge thereof could surely 
be trusted to exercise a discretion to extend the time for 
appealing under the provisions of section 1 1 in special cir- 
cumstances. We recommend that power be given to a judge 
of the Court of Appeal to extend the time for appealing in 
proper cases. 

"In Maher v. Sheridan, [1966] 2 O.R. 284, the Court of Appeal held that the 
Rules of Practice and Procedure did not apply to an appeal under the 
Mining Act, R.S.O. 1960, c. 241. 

Table E 

EXISTING PROVISIONS RELATING TO PRACTICE 
AND PROCEDURE 



County or District Court 

Judge. ( The sole arbitrator 

under the Municipal Act, 

s. 347(1).) Expropriation 

Procedures Act, s.10{1){a). 



Official Arbitrator. 

Municipal Arbitrations 

Act, S.I (3) as enacted 

by 1965, c. 7 8, S.I; 

Expropriation 

Procedures Act, 

s.W{1){b). 



Ontario Alunicipal Board. 

Expropriation Procedures Act, 

s.m{1){c) ands.10{3). 



COMMENCEMENT OF PROCEEDINGS 



Serve clerk of municipal- 
ity and other interested 
persons with notice that 
matter is referred to the 
Official Arbitrator (the 
Judge), specifying nature 
of claim or question to be 
determined and the 
amount in controversy. 
Municipal Arbitrations 
Act, S.3. 



See column 1. Either party may serve the other 

with Notice of Application setting 
forth the nature of the applica- 
tion and the relief sought. R.R.O. 
1960, Reg. 466, s.4, Form 1; 
made pursuant to the Ontario 
Municipal Board Act. 



2. File such Notice with the 
Official Arbitrator (the 
Judge). Municipal Arbi- 
trations Act, S.3. 



See column 1 . The Notice of Application is then 
filed with the Board. Reg. 466, 

S.7. 



INTERLOCUTORY PROCEEDINGS— PLEADINGS 



3. No pleadings, apart from 
notice referred to above. 



See column 1. Reg. 466, s.2 provides that where 
any matter is not expressly pro- 
vided for by the rules in the 
Regulation, the Rules of Practice 
and Procedure under the Judica- 
ture Act shall be followed as far 
as they are applicable, as de- 
termined by the Board. Ss. 4-9 
provide for documents in the 
nature of pleadings 



Chapter 72 1067 



Table E—(Contini{ed) 



County or District Court 

Jiidgf. {The sole arbitrator 

under the Afunici/itil Act, 

s.347{1).) Expropriation 

Procedures Act, s.10{1){a). 



Official Arbitrator. 

Municipal Arbitrations 

Act, S.I (3) as enacted 

by 1965, C.7S, S.I; 

Expropriation 

Procedures Act, 

s.10{1){b). 



Ontario Municipal Hoard. 

Expropriation Procedures Act, 

s.10{1){c) ands.10{3). 



PRODUCTION AND DISCOVERY 



Questionable whether 
parties have right to pro- 
duction and discovery. 
The Municipal Arbitra- 
tions Act, s.l(2)(e) 
gives all the powers of a 
Supreme Court Judge 
including those relating 
to the production of books 
and papers, etc., the time 
and place of taking ex- 
aminations, etc., to the 
Official Arbitrator. This 
may not apply to Judges 
and may not amount to 
conferring procedural 
rights on parties in the 
absence of properly en- 
acted rules to that eflTect. 



No stated rules regard- 
ing hearings, apart from 
s.l (2)(e) of the Muni- 
cipal Arbitrations Act 
giving to the Official 
Arbitrator all the powers 
of a Supreme Court 
Judge. 



See column 1. Under Reg. 466, s.l 4 the Board 
may make orders for production 
of documents, for inspection, for 
examinations for discovery, for 
the examination of witnesses who 
cannot attend the hearing by 
reason of sickness, etc. A party, 
prior to the hearings, may cause 
the other to admit any document 
that requires to be proved, to 
save expense. Similar provisions 
are found in the Ontario Muni- 
cipal Board Act, ss. 37, 90. 

The Power Commission Act, 
s.24(6) provides that where the 
Hydro-Electric Power Commis- 
sion elects to have compensation 
determined by the Ontario 
Municipal Board, in addition to 
the powers conferred upon the 
Ontario Municipal Board by s.28 
of the Public Works Act, and by 
the Ontario Municipal Board 
Act, the Ontario Municipal 
Board has the power, upon the 
application of the Commission or 
the owner, to direct the filing and 
serving of pleadings, and par- 
ticulars thereof, and to direct 
discovery and production as in 
actions in the Supreme Court, 
and in accordance with the rules 
of practice in that behalf. 



THE HEARING 

See column 1. 



Reg. 466, s.l 7 provides that at 
the hearing of an application, the 
party commencing the proceed- 
ings shall begin and, after the 
evidence in defence is given, has 
the right of reply. Parties have 
the right to have witnesses sub- 
poenaed. Form 9. 

Also, during the course of the 
hearing, it would appear, the 
Board may state a case in writing 
for the opinion of the Court of 
Appeal upon any question that, 
in the opinion of the Board, is a 
question of law. Ontario Munici- 
pal Board Act, s.93. 



1068 Appeals 



Table E— (Continued) 



Count}' or District Court 

Judge. (The sole arbitrator 

under the Municipal Act, 

s.347{7).) Expropriation 

Procedures Act, s.10{1){a). 



Official Arbitrator. 

Municipal Arbitrations 

Act, s.1{3) as enacted 

by 1965,c.78,s.l; 

Expropriation 

Procedures Act, 

s.W{1){b). 



Ontario Municipal Board. 

Expropriation Procedures Act, 

s.10{1){c) and s.10{3). 



Questionable whether 
there is any restriction on 
the number of expert wit- 
nesses that may be called. 



THE HEARING— (Continued) 
See column 1, 



If, by virtue of the definitions of 
"action" in s.l(a) and "court" in 
s.l(b) of the Evidence Act, s.lO of 
that Act applies, then no more 
than three expert witnesses may 
be called without the leave of the 
Board. 



7. The Municipal Arbitra- 
tions Act, S.4 provides 
that where the Official 
Arbitrator (the Judge) 
proceeds partly on view 
or upon special knowl- 
edge this shall be incor- 
porated into his reasons 
for judgment. S.5 pro- 
vides that the Official 
Arbitrator (the Judge) 
shall file his award, the 
exhibits, and his reasons 
in the office of the reg- 
istrar of the Court of 
Appeal. This may be an 
indirect requirement that 
reasons be, in fact, given. 
(Further, see note in item 
10, infra.) The Official 
Arbitrator (the Judge) 
must give notice of filing 
to the parlies. S.5. The 
award is not to be made 
public until the Official 
Arbitrator's fees are paid. 
S. 6. 



The Official Arbitrator 
may determine the inci- 
dence and scale of costs. 
They shall be taxed by 
one of the taxing officers 
of the Supreme Court. 
Municipal Arbitrations 
Act, s.ll. 

The Expropriation Pro- 
cedures Act, S.13 provides 



THE AWARD 
See column 1. 



COSTS 
See column 1. 



It appears, according to Reg. 466' 
S.25, that the Board's "award' 
would be in the form of an order, 
prepared by the applicant and 
approved by the respondent. 
See Form 10 of this Regulation. 
There is no requirement that 
reasons be given for the order. 



Costs shall be in the discretion of 
the Board and may be fixed in 
any case at a sum certain or may 
be taxed. The Board may order 
by whom costs are to be taxed 
and under which scale. Ontario 
Municipal Board Act, s.96. See 
also column 1 as to costs under 
the Expropriation Procedures 
Act, s.13. The comments therein 
regarding s.ll of the Municipal 



Chapter 72 1069 



Table 'L— (Continued) 



County or District Court 

Judge. {The sole arbitrator 

under the Municipal Act, 

s.317{J).) Expropriation 

Procedures Act, s.10{1){a). 



Official Arbitrator. 

Municipal Arbitrations 

Act, s.1{3) as enacted 

by 1965,c.78,s.1; 

Expropriation 

Procedures Act, 

s.10{1){b). 



Ontario Municipal Board. 

Expropriation Procedures Act, 

s.70i7){c) ands.70{3). 



for the awarding of costs 
in a manner dillerent 
from s.ll. S.ll of the 
Municipal Arbitrations 
Act is made appHcable 
by the Expropriation 
Procedures Act, s.lO(l) 
(a)(b). It is not clear 
whether it takes prece- 
dence over s.13 of the 
Expropriation Proce- 
dures Act, if there be any 
conflict between the two. 



COSTS— (Continued) 



Arbitrations Act are probably 
equally applicable to s.96 of the 
Ontario Municipal Board Act. 



FEES OF ARBITRAL TRIBUNAL 



Fees of Official Arbitra- 
tor. LInder the Municipal 
Arbitrations Act the 
award is not released 
until the fees of the arbi- 
trator are paid. S.6. 
Fees are payable by the 
parties proportionately 
but may be awarded 
against any of the parties 
as costs of the arbitration. 
S.12. 

Although the Municipal 
Act, s.347(2), provides 
that the Municipal Ar- 
bitations Act as to pro- 
cedure and appeals 
applies to arbitrations 
held and awards made 
by the judge, it is not 
clear that a judge is 
entitled to a fee unless the 
entitlement thereto is a 
matter of "procedure". 
(See pp. 1037-39 supra.) 



See column 1, 
where it is sug- 
gested that a judge 
sitting as sole arbi- 
trator may not be 
entitled to a fee. 



S.99 of the Ontario Municipal 
Board Act provides for the pay- 
ment, upon every application to 
the Board or every order thereof, 
of such fee as the Board may 
direct, regard being had to the 
time occupied by the Board and 
its officers and the expense occa- 
sioned to the Province in the 
matter. 



APPEAL TO COURT OF APPEAL 



10. The Expropriation Pro- 
cedures Act, s.lO(l)(a) 
(b) provides that the 
provisions of the Munici- 
pal Arbitrations Act "as 



See column L Appeals are clearly under s.ll of 
the Expropriation Procedures 
Act, since by s.lO(3) of that Act 
ss. 94, 95 of the Ontario Muni- 
cipal Board Act do not apply. 



1070 Appeals 



Table ^—(Continued) 



County or District Court 

Judge. (The sole arbitrator 

under the Municipal Act, 

s.347{7).) Expropriation 

Procedures Act, s. 10(7) (a). 



Official Arbitrator. 

Municipal Arbitrations 

Act, S.I {3) as enacted 

by 7965, C.7 8, s.7; 

Expropriation 

Procedures Act, 

s.70{7){b). 



Ontario Municipal Board. 

Expropriation Procedures Act, 

s.70{7){c) and s. 70(3). 



APPEAL TO COURT OF APPEAL— (Continued) 



to procedure" apply 
where the tribunal is 
either (a) the judge or (b) 
the Official Arbitrator 
"as provided for in Part 
X\T of the Municipal 
Act". This Part includes 
s. 347(2) which says that 
the provisions of the 
Municipal Arbitrations 
Act "as to procedure and 
appeals" apply to arbitra- 
tions held and awards 
made by the judge. The 
appeal provisions of the 
Municipal Arbitrations 
Act, s.7, while similar 
to those in the Expro- 
priation Procedures Act, 
s.ll, are not exactly the 
same. The latter prob- 
ably governs, giving the 
phrase "as to procedure" 
precedence over "as pro- 
vided for in Part XVI of 
the Municipal Act". 

The Expropriation Pro- 
cedures Act, s.ll pro- 
vides, inter alia, that "the 
appeal may be taken at 
any time within six weeks 
from the day the deter- 
mination or order was 
sent by registered mail to 
the parties . . ." This 
implies that the tribunal 
shall so send the deter- 
mination or order. This 
is in conflict with s.5 of 
the Municipal Arbi- 
trations Act (see item 7, 
supra) which appears to 
be applicable by the Ex- 
propriation Procedures 
Act, s. 10(1) (a). Com- 
pliance with SS.5, 6 of the 
Municipal Arbitrations 
Act could well frustrate 
the right of appeal given 
by s.ll of the Expropria- 
tion Procedures Act. 



However, in the case of a muni- 
cipality which has designated 
the Ontario Municipal Board 
as sole arbitrator under the 
Municipal Act, s. 348, see column 
1. 



Chapter 72 1071 



Table E— (Continued) 



County or District Court 

Judge. (The sole arbitrator 

under the Afunicipal Act, 

s.347{1).) Expropriation 

Procedures Act, s.70{7){a). 



OJficial Arbitrator. 

Municipal Arbitrations 

Act, S.I {3) as enacted 

by 1965 C.7S, s.1; 

Expropriation 

Procedures .Act, 

s.10{1){b). 



Ontario Municipal Board. 

P'xpropriation Procedures Act, 

s.10{1){c) ands.10{3). 



APPEAL TO COURT OF APPEAL- (Continued) 



n. 



Under the Expropriation 
Procedures Act, s.ll, the 
appeal is to the Court of 
Appeal and the practice 
and procedure as to the 
appeal and proceedings 
incidental thereto are the 
same mutatis mutandis as 
upon an appeal from the 
High Court. 

Under s.348 of the 
Municipal Act a munici- 
pality can designate the 
Ontario Municipal Board 
as the sole arbitrator, in 
which case the Board has 
all the powers and duties 
of an Official Arbitrator. 
It further provides that 
the Ontario Municipal 
Board Act applies to pro- 
ceedings taken before the 
Municipal Board under 
this section except that 
the provisions of the 
Municipal Arbitrations 
Act as to appeals apply to 
awards made by the Mun- 
icipal Board. This is ad- 
opted by the Expropria- 
tion Procedures Act, s.lO 
(l)(c). 



For any further possible 
appeal to the Supreme 
Court of Canada resort 
should be had to the 
Supreme Court Act, 
R.S.C. 1952, C.259. 



FURTHER APPEAL 

See column 1. See column \. 



(Note that by Reg. 466, s.l9 no 
trial or hearing shall take place 
or motion be heard during the 
long vacation or the Christmas 
vacation unless directed by the 
Board in case of urgency. This 
Regulation implies, see s. 18, that 
parties to proceedings before the 
Board may make interlocutory 
motions. There would appear to 
be no such right before the 
Judge or Official Arbitrator.) 



CHAPTER 73 



Abandonment or Disposal of 
Expropriated Land 



ABANDONMENT 

Ihe relevant section of the Expropriation Procedures 
Act reads :^ 

"21. (1) Where, at any time before the date specified in the 
notice of possession served under section 19, the land or any 
part thereof is found to be unnecessary for the purposes of 
the expropriating authority or if it is found that a more 
limited estate or interest therein only is required, the expro- 
priating authority may, by an instrument signed by it and 
registered in the proper registry or land titles office and served 
on the OAvner -^vho was served ^vith notice of expropriation, 
declare that the land or such part thereof is not required and 
is abandoned by the expropriating authority or that it is 
intended to retain only such limited estate or interest as is 
mentioned in the instrument, and thereupon, 

(a) the land declared to be abandoned revests in the owner 
from Avhom it ^vas expropriated and those entitled to claim 
under hiiri; or 

(b) in the event of a limited estate or interest only being 
retained by the expropriating authority, the land so revests 
subject to such limited estate or interest. 

(2) Where part only of the land or all of it except a limited 
estate or interest therein is abandoned, the fact of such aban- 
donment and the damage, if any, sustained in consequence of 
that which is abandoned having been expropriated and all 
the other circumstances of the case shall be taken into account 



^Ont. 1962-63, c. 43, s. 21. 

1072 



Chapter 73 1073 

in determining the compensation for the part or the limited 
estate or interest that is not abandoned. 

(3) Where the whole of the land is abandoned, the owner 
from whom it was expropriated is entitled to compensation 
for all damages sustained and all costs incurred by him in 
consequence of the expropriation and abandonment, and the 
amount of the compensation, if not agreed upon by the 
parlies, shall be determined under this Act and not other- 
wise." 

In some cases, the right of abandonment, before the date 
specified in the notice of possession served under section 19, 
would benefit both the expropriating atithority and the owner. 
In other cases, the owner might not wish to have the land 
which has been taken from him unilaterally revested in him 
at some time after he had good grotinds for believing that he 
w^as no longer its owner. He may have purchased other prop- 
erty, assumed financial obligations or changed his way of life. 
Provision for compensation for all damages sustained and all 
costs incurred by o^vners in consequence of an expropriation 
and abandonment is not adequate where the ^vhole or part of 
the land expropriated is abandoned. The ow^ner should have 
a right to elect either to take the land back with a right of 
compensation for consequential damages, or to insist on the 
expropriating authority's retaining the land expropriated and 
paying full compensation therefor. 

DISPOSAL OF LAND AFTER EXPROPRIATION 

In our view^ an owner w^hose land has been taken by the 
exercise of statutory powers has a just claim to resume owner- 
ship of the land in certain circumstances if it is no longer 
required by the expropriating authority. This claim should 
be recognized in some form by legislation. 

As early as 1845, when England passed its first compre- 
hensive statute on compulsory purchase,- such rights were 
recognized and given some measure of protection by sections 
127 to 131 of that Act. These provisions conferred a right of 
pre-emption on original owners, or, at least, those "then 
entitled to the lands (if any) from which the same were 

"Lands Clauses Consolidaiion Act, 1845, 8 &; 9 Vict., c. 18. 



1074 Abandonment or Disposal of Expropriated Land 

originally severed"^ before superfluous lands could be sold 
by expropriating authorities. The Town and Country Plan- 
ning Act,^ which deals with the disposal of land held for 
planning purposes, when read with statutes incorporated by 
reference requires, in some cases, the consent of the appro- 
priate minister for the disposal of lands taken by compulsory 
purchase. 

The expropriating authority holds its extraordinary 
powers of expropriation in trust to be exercised for the public 
benefit. This has been recognized in legislation and in 
particular in those provisions which specify the purposes 
for which expropriations may take place. If a contemplated 
expropriation is for a purpose not provided in the relevant 
legislation, then there is no power to proceed with it. This 
accords with the basic principle that a person's property rights 
should not be taken from him except for purposes specified 
by the Legislature. Subject to the right of abandonment, the 
legislation does not make the spirit of this principle fully appli- 
cable. Except in one or two cases, where land that has become 
vested in the expropriating authority is no longer needed for 
its purposes, there do not appear to be any statutory restric- 
tions on an expropriating authority's right to do with the land 
what it washes. It may sell it to whomever it sees fit and at any 
price. The absence of any restrictions is an unjustified en- 
croachment on the rights of owners and tends towards expro- 
priation of more land than is required in order that a 
speculative profit may be made. 

The provisions in the Sanatoria for Consumptives Act^ 
and the Public Libraries Act,*' limiting the disposal of land 
which has been expropriated, are exceptions to the general 
rule. 

The Sanatoria for Consumptives Act provides: 

"24. No part of any property acquired or used for the purposes 
of a sanatorium shall be sold, leased, mortgaged or otherwise 
disposed of without the approval of the Lieutenant Governor 
in Council."^ 

^Ibid., s. 128. 

M962, 10 & 11 Eliz. II. c. 38, s. 78. 
'^R.S.O. 1960, c. 359. 

*R.S.O. 1960, c. 325. 1 his Act was repealed and replaced by the Public 
Libraries Act, 1966, Ont. 1966, c. 128, s. 54. 
^R.S.O. 1960, c. 359, s. 24. 



Chaptcy 73 1075 

This pro\'ision may apply to cases where the land has 
been acquired by other means than expropriation. It is not 
readily apparent what the policy ol tliis section is or whose 
interests are being protected by it. No criteria to guide the 
decision of the Lieutenant Governor in Coinicil are laid down. 

Ihider the iormer Public Libraries Act, consent of the 
municipal council was recjuired before land acquired by expro- 
priation could be disposed of: 

"'U. (1) Subject to the restrictions and provisions hereinafter 
contained, the board has po^ver to acquire by purchase, expro- 
priation, lease or otherwise, all lands required for library 
and branch library purposes, and to erect, lease or otherwise 
procure the necessary buildings therefor, and hold, maintain 
and repair the same, and has power, with the consent of the 
municipal coimcil, to sell, exchange or otherwise dispose of 
any lands or buildings that may no longer be required for 
such purposes."^ 

Where title to land may be affected caution must be 
exercised in conferring new rights. There are many factors 
to be considered in giving to previous owners statutory rights 
concerning land which is no longer required by the expro- 
priating authority. These factors must include: 

(1) The length of time which has elapsed since the expro- 
priation; 

(2) The difficulty of locating the former owner or his heir, 
as the case may be; and 

(3) The enhancement of the value of the surplus land by 
reason of work performed by the expropriating authority. 

We do not think that it is practical to confer actual 
property rights of a residual nature on former owners of 
expropriated land. Each case must be treated in the light of its 
particular facts. The practical solution would be to require the 
consent of the appropriate approving authority before any 
surplus land could be sold by an expropriating authority. In 
Table D^ the recommended approving authorities are set out. 
Before giving approval to a sale of expropriated land, the 
approving authority should be required to make inquiry into 

^R.S.O. 1960, c. 325, s. 31(1). A similar provision is contained in the Public 
Libraries Act, 1966, Ont. 1966, c. 128, s. 16(1). 
*See pp. 994 ff. supra. 



1076 Abandonincnt or Disfjosal of Expropriated Land 

the circumstances of the proposed sale and the position and 
desires of former owners, who should be given an opportunity, 
where practical, to purchase the land on equitable terms. 
Failure to follow legislative provisions of this sort should not 
affect the title to the land. 

Several beneficial consequences should flow from such 
provisions. Taken with the inquiry-approval procedure w^hich 
we recommend, it should operate to curb expropriations of 
more land than is necessary for the purposes of a proposed 
work. In addition, it should place upon the proper authority 
(in the same manner as the proposed inquiry-approval pro- 
cedure) full responsibility for the decision concerning the 
future of the expropriated land, having regard to the just 
claims of former owners. 

We recognize the problem respecting the price which 
the former owner should pay for superfluous lands. On 
the one hand, it could be said that the owner should have 
his land back for the amount of compensation paid to 
him for it regardless of its ne^v^ market value, if any. If its 
market value is enhanced by the work executed on the non- 
superfluous expropriated land, the owner would have enjoyed 
this enhancement if the expropriation had not included the 
superfluous lands. Why should he have to pay for it when 
these lands are sold back to him? On the other hand, in some 
cases the land which turns out to be superfluous may have 
originally been necessary for the execution of the work in- 
volved and the work could not have been constructed without 
it. If, by reason of changed circumstances expropriated land 
becomes superfluous, why should the former owner be entitled 
to obtain it for less than its existing market value? There are 
no fixed answers to these questions. Justice depends on the 
circumstances in each case. Fixed rules cannot be laid down 
respecting the price at which superfluous lands should be 
sold. As each case arises, the approving authority, or the 
Minister or municipality (who are their own respective 
approving authorities), as the case may be, should consider all 
the relevant facts when consenting to a sale or selling expro- 
priated land at a particular price. The owner should have a 
right to be heard and make his claim. 



Chapter 73 1077 

Certain existing provisions in Ontario expropriation 
legislation require consideration in the light of our recom- 
mendations. 

Four of the most frecjuently used expropriation statutes 
may be taken as examples: the Highway Improvement Act,'" 
the Municipal Act,^^ the Power Commission Act/- and the 
Public Works Act.'^ These provisions are not all worded in 
the same manner but they serve the same general purpose- 
to enable the expropriating authorities involved to expropri- 
ate more land than is necessary if they can acquire the larger 
areas of land at a more reasonable price than the part imme- 
diately required for their purposes. Section 333 (2) of the 
Municipal Act and section 25 of the Public Works Act specif- 
ically empower expropriating authorities to sell whatever 
land is not required or to sell whatever is deemed expedient. 
The Municipal Act'^ enables municipalities to use any land 
acquired or taken in excess of land actually required for the 
opening, widening, extension or straightening of a highway 
in or tOAvards making compensation by way of restitution to 
the owner of other land taken for or in connection with the 
work. These provisions may be used in contravention of fair 
principles of expropriation law. An authority could delib- 
erately expropriate more land than was necessary for the 
proposed W'Ork w^ith the sole purpose of selling the surplus 
land at a considerable profit realized through increased value 
by reason of the work involved. This would reduce the total 
cost of the project at the expense of the owner of the unneces- 
sary land. 

Apart from the deliberate taking of more land than is 
necessary for the purpose of selling the surplus land at a profit, 
there are cases where the power to take more land than is 
directly necessai^ may be to the advantage of both the owner 
and the expropriating authority. For example, some expro- 
priations may leave the owner with a remnant of land which 

'"R.S.O. I960, c. 172, s. 7 (4). 

"R.S.O. I960, c. 249, s. 333(2). 

^"R.S.O. 1960, c. 300, s. 24 (3), which incorporates the expropriation powers of 

the Public Works Act. 
^^R.S.O. 1960, c. 338, s. 25. There are several other expropriation statutes with 

provisions similar to those contained in the statutes just mentioned. 
"R.S.O. 1960, c. 249, s. 334 (1). 



1078 Abandoninenl or Disposal of Expropriated Land 

would be of little or no value to him. In such cases the 
expropriating authority could be obliged to pay severance 
damages which, in addition to the compensation for the land 
taken, might be equal to the value of the owner's parcel. 

In view of the foregoing, we recommend that expropriat- 
ing authorities should not be empowered to expropriate more 
land than is necessary for the proposed work, except where 
this can be shown to be in the interests of the owner of the 
unnecessary land. 



CHAPTER 74 

Expert Appraisers 



We have referred to the importance of having reason- 
ably (jualified appraisers available to perform their services 
at \'arious levels of expropriation proceedings, when required 
to advise expropriating authorities and owners and to 
give expert testimony before tribunals determining com- 
pensation. There is no area of litigation in which tribunals 
are as reliant on the evidence of potentially ill-qualified wit- 
nesses as they are in expropriation cases. The fact that 
appraisers play such an essential role in the process of fixing 
compensation should be recognized in a tangible way by the 
government. We suggest that the government should take 
steps to encourage and promote the education and training of 
appraisers whose services will be available to the public, as 
well as expropriating authorities. The need for well-qualified 
appraisers is a public need. 

At the present time there are courses of instruction 
offered by some organizations and institutes in the Province 
which are concerned with the techniques of appraisal. While 
these courses no doubt are serving a useful purpose, wider 
courses of education should be available which go more deeply 
into the basis of land \aluation, with instruction in related 
land law, economics, public finance, construction and engi- 
neering with a view to providing comprehensively trained 
appraisers. 

In Ontario there are no comprehensive courses available 
of this nature. The University of Toronto School of Archi- 
tecture provides a post-graduate course of instruction in town 

1079 



1080 Expert Appraisers 

and regional planning, but the course we envisage should be 
much more comprehensive and specialized than that. 

The course provided by Queen's University for the 
Institute of Municipal Assessors of Ontario, with the financial 
assistance of the Department of Municipal Affairs, is an 
example of what has been accomplished in a similar field. 

In England there are three professional bodies concerned 
wath land valuation: 

(1) The Royal Institution of Chartered Surveyors, 

(2) The Chartered Auctioneers and Estate Agents Institute, 

(3) The Chartered Land Agents Society. 

These three bodies came together and established the 
College of Estate Management, which is affiliated with London 
University. In addition, there is a course in land valuation 
given at Cambridge University. The course at the College of 
Estate Management includes land law% construction costs, town 
planning, and the economics of land valuation. The surveyor 
members of the Lands Tribunal are appointed by the Lord 
Chancellor from persons suggested by the Royal Institution of 
Chartered Surveyors. 

We think that the number of expropriations in Ontario 
warrants the development of a w-ell-trained and organized 
body of professional appraisers. 



Summary of Recommendations 
Contained in Section 1 



1081 



Summary of Recommendations 
on Expropriation Procedure 

1. The right of an owner, whose property has been expro- 
priated, to be paid compensation should be secured in 
the Constitution. 

2. The Legislature should not confer the power of expro- 
priation on any body or person unless it is clear that the 
power is inescapably necessary in the interest of good 
government, and that there are adequate controls over 
its exercise. 

3. There should be a complete review of all of the powers 
of expropriation with a view to determining the purpose 
and necessity of each one and the adequacy of statutory 
safeguards controlling their exercise. 

4. The less responsible to public opinion the particular 
body may be, the more reluctance there should be in 
conferring a power of expropriation on it. 

5. Where the power of expropriation is conferred on any 
body, the identity of the person or body who may exercise 
the power should be stated clearly in the legislation. 

6. Where the Legislature has decided to encroach on civil 
rights by creating a new power of expropriation, it should 
do so in clear and unambiguous language that expresses 
the intention in readily recognizable form. The direct 
and proper way to do this is to use the verb "expropriate" 
in the operative statutory provision. 

7. Where the Legislature has decided to confer on any body 
the powers of expropriation, it should know and state in 
clear and precise language the purpose for which it is 
conferring the po\\'er. 

1083 



1084 Expropriation Procedure: Recommendations 

8. An approval system should be provided to control final 
decisions to expropriate. 

9. Except in unusual circumstances, before final approval is 
given to the expropriation, persons affected by a proposed 
expropriation should be given an opportunity to be heard 
at a formal inquiiy. In unusual circumstances, the Lieu- 
tenant Governor in Council should have power to permit 
the expropriating authority to proceed after proper 
approval without following the inquiry procedure. 

10. The basic principle which should dictate the selection of 
the approving authority is that the approving authority 
should be in a position to accept clear political responsi- 
bility for the expropriation decision finally made. 

1 1 . Generally, the Minister who is charged with the adminis- 
tration of a statute should control and be responsible for 
and approve of expropriations made under that statute. 

12. The recommended inquiry-approval procedure should 
apply to municipalities. A municipality should be its 
own approving authority, except where the power to 
expropriate land is exercised for a purpose other than the 
purposes of the municipal body— such as the disposal of 
the land expropriated to private persons or bodies for 
their own purposes. In such cases the exercise of the 
power of expropriation should be approved by the Minis- 
ter of Municipal Affairs. 

13. An expropriation under the Public Works Act for the 
benefit of a department, other than the Department of 
Public Works, should be subject to the approval of the 
minister of the relevant department and not the Minister 
of Public Works. 

14. Expropriations by the Municipality of Metropolitan 
Toronto should be approved by that body in the same 
manner as expropriations by other municipalities, and 
not by the Minister of Municipal Affairs. 

15. Expropriations by all school boards should be subject to 
the approval of the Minister of Education. 



Exproprialion Procedurt': Rccoinniciiddliotis 1085 

16. The iiujuiry ofliccis in the leconiiiicuded inquiry- 
approval procedure should be appointed by the Attorney 
General on a permanent or ad hoc basis. 

17. The statutory incjuiry procedure in the United Kingdom, 
which is followed prior to compulsory purchases, is a 
useful guide to be followed in establishing the procedure 
in Ontario. 

18. The following are the essential steps which should be 
followed in the reconnnended inquiry-approval pro- 
cedure: 

(a) The expropriating authority should give adequate 
notice of its intention to expropriate to all persons 
affected. 

(b) If the person or persons affected desire to exercise 
their right to a hearing, they should so advise the 
approving authority within a stated time. 

(c) If no persons notify the approving authority that 
they desire a hearing, then that body may authorize 
the proposed expropriation to proceed. If any affected 
person or persons notify the approving authority that 
they desire to be heard, then it should appoint a date 
and time and place for an inquiry and so notify all 
interested parties. The Attorney General should ap- 
point the inquiry officer. 

(d) Prior to the hearing, the expropriating authority 
should deliver to all interested parties a notice indicat- 
ing the grounds upon which it intends to rely at the 
hearing, together with a list of any documents (includ- 
ing maps and plans) which the authority intends to use 
at the hearing. 

(e) The parties at the hearing should be entitled to 
present their own cases or to be represented by mem- 
bers of the legal profession or laymen. 

(f) The expropriating authority should present its case 
first and have a right of reply following the case for 
the objectors. Cross-examination of witnesses should 
be allowed. The ordinary rules of evidence should not 



1086 Exproljriatiou Procedure: Recommendations 

apply. The main criterion for the admissibility of evi- 
dence should be its relevance. Hearsay evidence should 
be admitted if, in the opinion of the inquiiy officer, it 
may have probative value. 

(g) The merits of the expropriating authority's general 
policy should not be considered relevant, but alterna- 
tive routes or sites should be relevant. The soundness, 
fairness and necessity of taking the particular piece of 
land described in the proposed expropriation plan, 
should be the main issue at the inquiry, 
(h) The inquiry officer should have the right to inspect 
the site of the proposed expropriation, either in the 
presence of the parties or alone. 

(i) Following the presentation of the evidence, all 
parties to the proceeding should be entitled to present 
argument to the inquiry officer. 

19. The report of the inquiiy officer should contain a sum- 
maiy of the evidence and arguments advanced by the 
contending parties, the inquiry officer's findings of fact, 
and his opinion on the merits of the application with 
reasons therefor. 

20. After receipt of the report, the approving authority 
should consider it and decide to authorize (with or with- 
out modification), or not to authorize the proposed ex- 
propriation, giving written reasons for its decision. No 
modification should extend the expropriation to land 
which was not included in the original plan of expropria- 
tion, unless the parties affected consent. 

21. A time limitation should be fixed within which expro- 
priation proceedings may be challenged. The provision 
for the time limitation should contain safeguards con- 
cerning the rights of persons affected who have had no 
notice of the proceedings, and the rights of all parties 
where the expropriating authority has acted without 
statutory authority. 

22. An application to set aside or quash an expropriation 
should be made to the Appellate Division of the High 
Court of Justice for Ontario which we recommend in 
Chapter 44. 



Expropriation Procedure: Rccommciidaliuns 1087 

23. Where the recommended iiKjuiry-approval procedure 
is followed, the owner should have the riglit to elect 
whether the compensation should be fixed as of the date 
iliat the notice of the hearing before the inquiry officer 
is served, or as of the date of tlie registration of the plan, 
or the date that the notice of expropriation is served, or 
as of the date on which possession is given. ^ 

21. The expropriation plan should be registered within a 
stipulated period after approval has been given, or, w'here 
leave is granted to proceed without the inquiry pro- 
cedure, within a stipulated period after leave is granted, 
on pain of having either the expropriation lapse or of 
being liable to pay compensation by reason of the delay, 
or both. The period of six months from the date of the 
order authorizing the expropriation provided for by sec- 
tion la(7) of the Expropriation Procedures Act- is much 
too long. 

25. The phrase "where an expropriating authority has exer- 
cised its statutory powers to expropriate land", used in 
section 4(1) of the Expropriation Procedures Act, should 
be clarified. 

26. Provision should be made for compensation in proper 
cases for repairs or improvements to expropriated prop- 
erty between the date of the expropriation and the date 
of the service of the notice under section 5(1) of the Act. 

27. The owner-occupant of the expropriated land should be 
served with the notice of the expropriation under section 
5(1) of the Expropriation Procedures Act within a time 
less than the sixty day period provided for in that section. 
This service could be made first and the remaining serv- 
ices made thereafter. 

28. The notice of expropriation. Form 1, should be amended 
to include: 

(a) A statement that the owner has the right to invoke 
the negotiation procedure set out in section 9a of the 



^For right to elect where inquiry-approval procedure is not followed, see 
p. 1012 supra. 
"Ont. 1962-63, c. 43, s. la(7), as enacted by Ont. 1966, c. 53, s. 1. 



1088 Expropriation Procedure: Recommendations 

Expropriation Procedures Act, and that he must do so 
before proceeding to arbitration unless the parties 
otherwise agree; 

(b) A statement that the owner may consult a solicitor 
to advise him as to his legal rights, and that the expro- 
priating authority will pay the preliminary costs of 
the solicitor fixed according to a prescribed tariff. 

29. The offer of compensation under section 8 of the Expro- 
priation Procedures Act in most cases should be made 
much earlier than six months after the date of registration 
of the plan. 

30. Provision should be made for such additional personnel 
for the Board of Negotiation as may be necessary to satisfy 
future needs. 

31. The expropriating authority should be required to take 
possession of the land, with all the attendant liabilities, 
on the date fixed for giving possession in the notice under 
section 19(1) of the Expropriation Procedures Act, or on 
a date fixed by the judge. 

32. The expropriating authority, subject to "an adjustment 
of the date" under section 19(3), should be required to 
give a minimum of three months' notice of possession 
under section 19(1) of the Expropriation Procedures Act. 

33. The notice of possession under section 19(1) of the Expro- 
priation Procedures Act should contain a statement of the 
options available to the owner— specifically, that he has 
the right to apply to the judge for an order extending the 
time, and that the expropriating authority has a corres- 
ponding right to apply for a reduction of the time speci- 
fied in the notice. 

34. The full amount of compensation as estimated by the 
expropriating authority should be offered to the owner 
as a condition precedent to the obtaining of possession. 

35. The payment of fees and expenses to the arbitrator by the 
parties to the arbitration in expropriation proceedings 
should be abolished. 

36. A Lands Tribunal, similar to the Lands Tribunal in Eng- 
land, should be established with jurisdiction to determine 



Expropriation Procedure: Rccomnwudatiojis 10H9 

compensation in all cases where the power of expropria- 
tion is exercised, and in those cases where statutory powers 
to ac(iuire rights over land are exercised. 

37. The recommended Lands Tribunal should determine 
compensation for expropriations under the Ontario 
Energy Board Act, 1964. 

38. Arbitrations should be heard by at least three members, 
one of whom should be a chairman or vice-chairman (who 
should be a qualified lawyer), except where the amount 
claimed is less than $1,000.00, in which case the arbitra- 
tion might be conducted by one member. 

39. There should be a right of appeal from the decision of the 
proposed Lands Tribunal to the Court of Appeal on all 
questions of law and fact. 

40. The government should make available a series of pub- 
lished reports of reasons for awards by the Lands Tri- 
bunal. 

41. There should be uniformity of procedure to govern both 
the pre-hearing stage and the hearing stage of arbitration 
proceedings. 

42. Specific rules should be drawn governing the procedure 
for the recommended Lands Tribunal. 

43. The following aspects of procedure should be considered 
in formulating rules: 

(a) The Expropriation Procedures Act should expressly 
provide that a notice of arbitration is to be served 
where the parties agree to forego negotiation pro- 
ceedings. 

(b) The claimant should set forth in his notice of arbi- 
tration, or in his reply to a notice served by the expro- 
priating authority, a simple statement of the nature of 
his claim. The tribunal should be empowered in 
proper cases to order further particulars. In proper 
cases, the expropriating authority should be required, 
at the risk of costs, to admit or deny elements of com- 
pensation claimed. 



1090 Expropriation Procedure: Recommendations 

(c) The parties to expropriation proceedings should be 
required to produce to the parties adverse in interest, 
copies of the following documents relating to the evi- 
dence to be given by expert witnesses: 

(i) Plans and valuations of the land which is the 
subject of the proceedings, including particulars and 
computations in support of such valuations, which it 
is proposed to put in evidence; 

(ii) A statement of any plans, prices, costs, or other 
particulars, relating to properties other than the 
land in question which are proposed to be given in 
evidence, or a statement that no such plans, prices, 
costs or particulars will be relied upon. 

(d) The adoption of provisions similar to those con- 
tained in Rule 42(6) of the Lands Tribunal Rules in 
England which enable the Tribunal to adjourn the 
hearing on such terms as to costs or otherwise as it 
thinks fit where plans, valuations or particulars, which 
appear to the Tribunal not to have been sent to the 
Registrar, are sought to be relied upon at the hearing. 

(e) Any party to the proceedings should have a right 
to apply to the Registrar of the Tribunal for an order 
for production and inspection of any documents (other 
than privileged communications) which the Registrar 
may deem properly producible and relevant to the 
issues involved in the arbitration. 

(f) The Registrar of the proposed Lands Tribunal 
should have the power to order examinations for dis- 
covery to be held in special cases where an examination 
is shown to be necessary. 

(g) Interlocutory applications in arbitration proceed- 
ings should be kept to a minimum and should be heard 
by a legally qualified member of the Lands Tribunal, 
or the Registrar of the Tribunal if he is legally quali- 
fied. 

(h) At the hearing the claimant should present his case 
first. 



Expropriation Procedure: Rcconiinciiddlions 101)1 

(i) The Tribunal should be empowered to take a view 
of the expropriated pioperty and to consider what it 
saw as relevant evidence adduced in the case. 

(j) There should be no onus of proof, in so far as it 
relates to the proof of market value, placed on either 
party to the arbitration proceedings. 1 he onus of proof 
of items of special value or consequential damage 
should be on the owner. 

(k) Until there is in Ontario a sufTicient number of 
(jualified appraisers, two experts should be permitted 
to give evidence without special leave. 

44. The Expropriation Procedures Act should be amended 
to make provision for a stated case on a question of law 
to the Court of Appeal in all expropriation arbitrations. 

45. The legislation should contain a specific requirement 
that written reasons for decisions be given in all cases. 

46. The legislation should expressly provide for the proper 
reporting of proceedings by a fully qualified court 
reporter. 

47. The rights of the parties to appeal from a decision of 
the Lands Tribunal should be well defined. The follow- 
ing should be expressly provided for in the Expropriation 
Procedures Act. The appeal should lie on both questions 
of law and fact. The Court of Appeal should have 
power to refer the matter back to the tribiuial or to give 
any judgment or make any order that the arbitration tri- 
bunal could have made. The Court of Appeal should be 
clothed with power to exercise the same power that it 
exercises on any appeal from a judge of tlie High Court 
sitting without a jury. 

48. A judge of the Court of Appeal should have power to 
extend the time for appealing in proper cases. 

49. Where either the whole or part of an owner's land which 
has been expropriated is abandoned, the owner should 
have the right to elect whether he will take the land back 



1092 Exproprialion Procedure: Recuuimendations 

with the right of compensation for consequential dam- 
ages, or insist on the expropriating authority's retaining 
the land expropriated and his being paid full compensa- 
tion therefor. 

50. The claim of an owner whose land has been expropriated 
to resume ownership of it in certain circumstances, if it 
is no longer required by the expropriating authority, 
should be recognized in some form by legislation. 

51. The consent of the appropriate approving authority 
should be required before any surplus land is sold by an 
expropriating authority. Before giving approval to the 
sale of expropriated land, the approving authority should 
be required to make inquiry into the circumstances of 
the proposed sale, and the position and desires of the 
former owners who should be given an opportunity, 
where practical, to purchase the land on equitable terms. 

52. Expropriating authorities should not be empowered to 
expropriate more land than is necessary for the proposed 
work, except Avhere this can be sho^s'n to be in the in- 
terests of the owner of the unnecessary land. 

53. The government should take steps to encourage and pro- 
mote the education and training of appraisers whose 
services would be available to the public, as well as to 
expropriating authorities. 



Section 2 



LICENSING 



1093 



INTRODUCTION 

Consideration oi the licensing laws of the Province may 
be usefully prefaced by a statement made by Mr. Justice Rand 
of the Supreme Court of Canada in Roncarelli v. Duplessis: 

"The field of licensed occupations and businesses of this 
nature is steadily becoming of greater concern to citizens 
generally. It is a matter of vital importance that a public 
administration that can refuse to allow a person to enter or 
continue a calling which, in the absence of regulation, would 
be free and legitimate, should be conducted with complete 
impartiality and integrity; and that the grounds for reftising 
or cancelling a permit should unquestionably be such and 
such only as are incom.patible {sic) with the purposes en- 
visaged by the statute: the duty of a Commission is to serve 
those purposes and those only. A decision to deny or cancel 
such a privilege lies within the 'discretion' of the Commis- 
sion; but that means that decision is to be based upon a 
weighing of considerations pertinei^t to the object of the 
administration."'^ 

Generally, the relevant legislation prohibits the doing of 
the thing in question and creates an exemption from the pro- 
hibition in favour of those who have been granted licences. 
The Highway Traffic Act, for example, provides that: "No 
person . . . shall operate or drive a motor vehicle on a highway 
iniless he holds an operator's licence issued to him under this 
section."^ Licensing legislation usually makes it an offence 
punishable by a fine or imprisonment to engage in the pro- 
hibited conduct without a licence.^ 

No useful purpose would be served in cataloguing the 
many licensing powers now conferred by Ontario legislation. 
They range all the way from permission to carry lethal 
weapons to selling newspapers on the streets. The principles 
to be applied in licensing legislation may be most usefully dis- 
cussed by an extensive consideration of licensing through by- 
laws passed under the authority of the Mtniicipal Act."* More 

'[1959JS.C.R. 121, 140. Italics added. 
-R.S.O. 1960, c. 172, s. 13(1). 
^Ihid., s. 13(2). 
*R.S.O. 1960, c. 249. 

1094 



luiruduction 1095 

than sixty trades and occupations are rcciuircd to be licensed 
by either municipal councils or boards of connnissioners of 
police and in Metropolitan Toronto, by the Metropolitan 
Licensing Commission. The principles we discuss have equal 
application to licensing laws administered by bodies that are 
not governed by the Municipal Act. In considering these 
licensing powers we are concerned with laws of wide impact 
and practical interest throughout the Province. 

THE DECISION TO LICENSE 

We start w4th this basic premise. It is an infringement of 
the civil rights of an individual to prohibit him, without gov- 
crmnent appro\'al, from engaging in a lawful activity. The 
(juestions with which ^ve are concerned are whether a licensing 
rccjuirement is an unjustified infringement on civil rights and 
^\•hether proper safeguards are provided against abuse of licens- 
ing powers. These questions can only be dealt with in the 
context of the particular government policy sought to be 
implemented in whole, or in part, by the licensing scheme. 

It is for the relevant legislative body to determine whether 
the public welfare sought to be advanced justifies prohibitory 
licensing legislation, with all the attendant restrictions flowing 
therefrom. It is not for this Commission to define formulae 
to guide governments, be they provincial or municipal, in 
determining what the relevant policy should be. 



CHAPTER 75 

Licensing Powers 

THE FORM OF THE POWER TO LICENSE 

z\n appraisal of legislation conferring the power to license 
involves the consideration of: 

(a) The personal and public interests involved; 

(b) The facets of licensing, granting, renewing, refusing, 
cancelling and suspending licences; 

(c) The legislative definition of the purpose of any particu- 
lar licensing requirements; and 

(d) The legislative definition of standards to govern licens- 
ing decisions. 

THE PERSONAL AND PUBLIC 
INTERESTS INVOLVED 

As a general principle that which is not prohibited is, in 
the eyes of the law, permitted. There is a personal and pub- 
lic interest that the law should not unnecessarily fetter the 
individual's basic right to engage in any lawful means of earn- 
ing a livelihood that he sees fit and to develop whatever talents 
he may have to this end. This principle bears on both the 
basic legislative decision to license and on the standards which 
should be imposed to implement the licensing power. 

It is not our function to consider competing economic 
values or principles. However, the interest of the individual 
and the public interest may suffer if licensing requirements 
are unnecessarily imposed or unreasonable standards are re- 
quired in their implementation. Generally, there is still a 

1096 



Chapter 75 1007 

basic truth expressed in the judgment of Harrison, C. J. in 
Regina v. ]ohnston: 

"The great law governing the conduct ol man in serving his 
fellowmen is the law of competition. The less that law is 
interfered with the better for the general interest of society."^ 

This philosophy has received legislative recognition in 
the Municipal Act, which provides, subject to certain ex- 
pressed exceptions, that "... a council shall not confer on any 
person the exclusive right of exercising within the munici- 
pality any trade or calling or business . . . unless authorized or 
required by this or any other Act so to do. . . ."^ 

The power to suspend or revoke a licence is more far- 
reaching than the powder to license. It involves not only the 
right of the individual to engage in the activity of his choice, 
but it may affect a substantial investment in time and money 
in the building up of the licensed business, together with 
goodwill attached to it. When proceedings are commenced 
to revoke, or to some lesser extent, to suspend a licence, all 
this must be taken into account. It should likewise be con- 
sidered in the framing of standards to be met for the procedure 
to be followed before a revocation or suspension order is made. 

THE FACETS OF LICENSING 

Licensing legislation involves more than conferring power 
to issue or refuse to issue licences. It involves matters logically 
related to the licensing scheme, including renewal, revocation 
and suspension of licences. These facets have sometimes, but 
not always, been recognized in licensing legislation in Ontario. 
For example, a typical provision in the Municipal Act enables 
by-laws to be passed for "licensing, regulating and governing 
[the activity in question] , . . and for revoking any such 
licence."^ 

On the other hand, there are provisions in the Act which 
confer the power to license, regulate and govern, but do not 

^ (1876), 38 U.C.Q.B. 549, 552. 
'R.S.O. 1960, c. 249, s. 248(1). 
"Ibid. Licensing dry cleaners: s. 377, para. 24; boat livery keepers: s. 395, 

para. 3; salvage shops: s. 396, para. 1; tobacco stores: s. 400, para. 2; theatres, 

bowling alleys, etc.: s. 401, para. 6. 



1098 Licensijig Powers 

confer express power to revoke.^ It may be assumed that in 
these cases the power of revocation is intended and it may be 
implied from the language used. The determination of the 
intention of the Legislature should not be left to implication. 
The power to revoke a licence is such a significant and far- 
reaching power affecting personal rights that it should be 
expressly conferred. To confer this power expressly in some 
sections of a statute and to leave its existence to inference in 
other sections in the same statute, is not only confusing but 
provides a vexatious source of litigation. 

It appears that the power to license is intended to 
carry with it the power to suspend for a particular period 
of time, since few of the licensing provisions in the Municipal 
Act expressly confer this powder. The Public Accountancy 
Act^ gives the Public Accountants Council power to revoke 
a licence, but does not give power of suspension. In Re Aloses 
and Institute of Chartered Accountants,^ it was held that a 
Supreme Court judge, on an appeal, had the power to sus- 
pend the licence but that the Ptiblic Accountants Cotnicil, the 
original tribunal, did not. 

All poAvers which naturally relate to licensing, such as the 
power to revoke or suspend, should be stated expressly in the 
legislation so that those affected can be under no doubt as to 
their rights and potential liabilities.'^ 

LEGISLATIVE DEFINITION OF THE 
PURPOSES OF LICENSING 

In the statutes of Ontario there is a wide variation in the 
legislative definitions of the purposes of licensing schemes. 

The British North America Act^ confers legislative power 
on the provinces with respect to "shop, saloon, tavern, auc- 
tioneer, and other licences in order to the raising of a revenue 

*Ibid. Lending libraries: s. 379(1), para. 133; laundries: s. 386, para. 1; fruit 
dealers: s. 399(1), para. 4; non-resident and transient photographers: s. 400, 
para. 4, as amended by Ont. 1961-62, c. 86, s. 44. 

"R.S.O. 1960, c. 317, s. 19. 

"[1965] 1 O.R. 155. 

"Cooper, State Administrative Law, 499, refers to court decisions where the 
power to revoke or suspend licences has been implied; but he states the 
general rule to be ". . . ordinarily, the authority to revoke licences rests 
upon specihc statutory authorization". 

"B.N.A. .Act, s. 92, para. 9. 



Chapter 73 1099 

for provincial, local, or municipal purposes." The raising of 
revenue is only one of the many purposes of imposing licens- 
ing re(juirements. Licences are often recjuired for the purpose 
of: facilitating the collection of re\enue;'* enforcing minimum 
standards of competence;'" protecting the public health;'' 
ensuring a minimum level of competence in certain trades 
serving the public, e.g., electricians;'- protecting natural re- 
sources;'"' regulating various aspects of the provincial economy, 
e.g.. tlie schemes provided for by the Farm Products Market- 
ing Act" and the Milk Act;'' or a licence may be re(juired for 
several combined purposes, e.g., collection of revenue, having 
a record of the names of persons enjoying a privilege, and 
public safety, e.g., the operation of motor vehicles on public 
highways.'^ 

It is axiomatic that the scope of any legislative power 
should be limited to its purposes. To enforce legislation for 
a purpose not intended is an unjustified infringement on civil 
rights. This leads to the conclusion that the particular pur- 
poses or policy sought to be implemented by licensing legis- 
lation should be carefully determined and then expressed in 
the legislation with clarity. The importance of a clear legis- 
lative standard was demonstrated in Brampton Jersey Enter- 
prises Ltd. V. The Milk Control Board of Ontario}'^ In that 
case the Milk Control Board refused to grant a licence to carry 
on the business of a milk distributor in a particular area on 
the ground that the area was already "adequately served" by 
other distributors. The pertinent legislation provided that: 

"12. (1) The Board may . . . (g) refuse to grant a licence where 
the applicant is not qualified by experience, financial respon- 
sibility and equipment to properly conduct the proposed 
business or for any other reason that the Board may deem 
sufficient. "^^ 

'Retail Sales Tax Act, Ont. 1960-61, c. 91. 

""Highway Traffic Act. R.S.O. 1960, c. 172. 

"Air Pollution Control Act, R.S.O. 1960, c. 12, superseded by the Air Pollu- 
tion Control Act, 1967, Ont. 1967, c. 2, at the time of writing not pro- 
claimed in force; Meat Inspection Act, Ont. 1962-6.S, c. 78. 

'^Municipal Act, R.S.O. 1960, c. 249, s. 401, para. 5. 

•'Game and Fish Act, Ont. 1961-62. c. 48, s. 38. 

"R.S.O. 1960, c. 137. 

•'Ont. 1965, c. 72. 

•"Highway Traffic Act, R.S.O. I960, c. 172, s. 13. 

•'[1956] O.R. 1. (C.A.). 

'".Milk Industry Act, Ont. 1951, c. 52, s. 12 (1) (g). 



1100 Liccmiiig Powers 

The Court of Appeal held that "the Board, being a creature 
of statute, must act within the ambit of the powers given to 
it by statute . . ."^^ and that "the reason given by the Board 
for its refusal to grant a licence [the area involved being 
already 'adequately served'] to the appellant is not . . . related 
to the object or purpose of the statute.""^ The uncertain 
language of the applicable legislation-^ made an extended 
examination of the statute and relevant case law necessary 
before the proper scope of the licensing power could be 
determined,"" 

DEFINITION OF STANDARDS 

"A prime source of justified dissatisfaction with the type of 
federal administrative action which I Avill shortly specify is 
the failure to develop standards sufficiently definite that deci- 
sions Avill be fairly predictable and that the reasons for them 
will be understood; this failure can and must be remedied. "^^ 

It is essential for the guidance of licensing agencies that the 
government policy be reflected in the legislative definition 
of the standards required to enable a person to obtain and 
retain a licence. While in most areas a rigid and exhaustive 
code cannot be laid down for the administration of the licens- 
ing policy and it is necessary to leave to the licensing tribunal 
the power to exercise a well-informed discretion, the scope of 
the policy should be made clear in the defined standards. The 
licensing legislation of Ontario leans much too heavily in 
favour of unfettered discretion. 

The case law on municipal licensing illustrates the defi- 
ciencies of the enabling sections of the Municipal Act and 
the deficiencies of licensing by-laws passed thereunder. Most 
of the enabling sections of the Act simply employ the formula 
that by-laws may be passed "for licensing, regulating and gov- 
erning" the particular trades or businesses, etc., mentioned. 

"[1956] O.R. 1, 8. 

"-"Ibid., 9. 

"Particularly s. 12 (1) (g). 

^^The probability of litigation, in the circumstances of applications of the 
type in the Bramptoyi case, would be significantlv reduced if s. 12(l)(g) 
concluded with the word "business" and not with "or any other reason 
that the Board may deem sufficient". 

^'Friendly, The Federal Administrative As^encies: The Need for Better Defini- 
tion of Standards, 75 Harv. L. Rev. 863, 867 (1962). 



Chapter lb 1101 

The requirements to be satisfied to obtain a licence, or to 
retain a licence, appear either to be leit to the body enacting 
the by-law— to be inserted in the by-law— or to be laid down 
in actual cases by the body administering it. 

Standards in Municipal By-Laws 

Some of the by-laws passed in Ontario providing for the 
licensing of taxicabs usefully illustrate how licensing powers 
may be implemented where no or insufficient standards are 
provided. 

The taxicab by-law enacted by the Board of Commis- 
sioners of Police for the City of Ottawa-* empowers the Board 
to revoke a licence "if the circumstances shall appear to it to 
warrant such action". It would be difficult to frame a more 
subjecti\'e legislative ground for re\'oking a licence. There is 
nothing in the enabling section of the Municipal Act-^ ex- 
pressly authorizing such a basis for revocation, nor, on the 
other hand, is there anything in it which would tend to indi- 
cate that the test is beyond the powers of the Board. 

The Windsor taxicab by-law enables the Board of Com- 
missioners of Police to revoke a licence "upon such grounds as 
the Commission may deem sufficient".-*^ The same language is 
used in the Sault Ste. Marie by-law.-^ The Hamilton by-law 
contains no provisions respecting the grounds for which a 
licence may be revoked. Its revocation section commences: 
"Upon the Board's decision to suspend or revoke any licence 
which may be lawfully revoked. . . ."-^ This section implies 
that a powder to revoke exists and that the grounds for revoca- 
tion are at large. 

The Fort William by-law-^ provides that a licence may 
"be refused, revoked, or cancelled by the Board in its dis- 

"^By-Law No. 184 of the Board of Commissioners of Police for the City of 

Ottawa, s. 31 (2). 
"R.S.O. 1960, c. 249, s. 395, para. 1. 
^'By-Law No. 91 of the Board of Commissioners of Police for the City of 

Windsor, s. 41 (b). 
^^By-Law No. 18 of the Board of Commissioners of Police for the City of 

Sault Ste. Marie, s. 34 (b). 
^*By-Law No. 4 of the Board of Commissioners of Police for the City of 

Hamilton, s. 13. 
'"By-Law No. 20 of the Board of Commissioners of Police for the City of 

Fort William, s. 13. 



1102 Licensing Powers 

cretion and it shall not be bound to give any reason for refus- 
ing, revoking, or cancelling any licence". While there is 
nothing in the enabling section of the Municipal Act^° ex- 
pressly authorizing this provision, it accords with section 
2 17(4) of the Act which contains similar language. A like pro- 
\ ision is in the London taxicab by-law. ^^ 

The Port Arthur taxicab by-law frankly states that "any 
licence issued pursuant to the provisions of this by-law may 
be revoked or cancelled at any time by the Board without 
cause assigned".^- The next sub-section of this by-law, by 
contrast, is objecti\'e in the extreme. Upon conviction for 
trivial offences carrying nothing more than a nominal fine, a 
taxicab operator shall— not may— lose his means of livelihood. 
It states: 

"54. (2) Every licence issued to a person as driver of a taxicab 
shall be forth^vith revoked upon the conviction of that person 
for any offence under the Criminal Code of Canada, the 
Liquor Control Act of Ontario or the Highway Traffic Act 
of Ontario, s. Ill (1) (a) or (b)." 

This is discrimination against taxicab operators and an 
luijustified encroachment on their civil rights. Mr. Gellhorn's 
observation on similar licensing laws in the United States is 
fully warranted: "In practical terms ... a blanket proscription 
of this sort seems more vindictively punitive than it does 
selectively preventive. "^^ 

These examples demonstrate how far bodies exercising 
subordinate legislative power will depart from sound princi- 
ples^^ when given the power to do so. The effective remedy 
does not lie in merely amending these arbitrary by-laws but 
in amending the provisions of the Municipal Act which gives 
the licensing tribunals power to be arbitrary. Proper guide 
lines are required. 

The development of some of the rele\'ant case law on 
municipal licensing illustrates the extent to which the rights 

•■'"R.S.O. 1960, c. 249, s. 395, para. 1. 

^^By-Law No. 58 of the Board of Commissioners of Police of the City of 

London, s. 6. 
^"By-Law No. 1 1 of the Board of Commissioners of Police of the City of Port 

Arthur, s. 54 (I), 
^nv^alter Gellhorn, Individual Freedom and (•ovcrnmcntal Restraints, 128. 
'"Sec Chapter 23 supra. 



Chapter 75 1103 

of the individual to earn liis li\ ing have been circumscribed 
by the arbitrary power ol licensing bodies. In Re McGUlivray 
& Hamilton;^'' the nuniicipality reluscd to renew or reissue a 
licence to the owner of a public garage. The applicant applied 
for an order of mandamus and, on the application, it was 
admitted that the applicant had "complied with the terms of 
the by-law as far as the application was concerned". The 
respondent relied on section 271 (now section 247) of the 
Municipal Act, which read: 

"271. (1) The power to license any trade, calling, business or 
occupation or the person carrying on or engaged in it shall 
include the power to prohibit the carrying on of or the engag- 
ing in it without a license. 

(4) Subject to the provision of The Theatres and Cinema- 
tographs Act, the granting or refusing of a license to any 
person to carry on a particular trade, calling, business or 
occupation, or of revoking a license under any of the powers 
conferred upon a council or a board of commissioners of 
police by this Act, or any other Act, shall be in its discretion, 
and it shall not be bound to give any reason for refusing or 
revoking a license and its action shall not be open to question 
or review by any court. "^^^ 



said: 



fiarlow, J., who heard the application in the first instance, 

"Pursuant to s. 271 (4) the council considered the applica- 
tion for a licence for a oaraore, and in its discretion refused 
to grant the same. It is not shown that the respondent did 
not properly or honestly exercise its discretion. Unless it is 
so shown, in my opinion, mandamus will not lie . . ."^* 

In affirming this decision, Robertson, C.J.O., said in the 
Court of Appeal: "It seems to me that it is impossible to argue 
that while the granting of a licence is in the discretion of the 
council, yet the council has no right to refuse to grant it."^^ 
The result is that an applicant for a licence and, w^hat is worse, 
the holder of a licence who has built up a business, such as a 
garage business, is dependent for his livelihood, or his con- 
tinued livelihood, on the whims of a licensing body that may 

"[1947] O.W.N. 761, affirmed [1947] O.W.N. 905. 
'•*" Municipal Act, R.S.O. 1937, c. 260, s. 271 (1)(4). 
="■[1947] O.W.N. 761, 762. 
^'Re McGUlivray ir Humiltun, [1947] O.W.N. 905, 907. 



1104 Licensing Powers 

act as it wills, so long as it conceals everything that could indi- 
cate an improper motive. We shall return to consider section 
247(4) of the Municipal Act in relation to procedure and 
appeals. 

Legislative Standards to Guide Licensing Bodies 

Where there are no standards laid down by the Legisla- 
ture to guide licensing bodies, litigants are left to grope in a 
maze of uncertainty as to what their rights are and the courts 
are not in a position to give them much assistance. Judg- 
ments have held, in the absence of any legislative guidance, 
that a licence can be refused for lack of good character; ^^ for 
an accumulation of several matters, each of them separately 
having "slight" relevance to the issues before the tribunal;^^ 
and where the contemplated land use of the licensee would 
violate an existing restrictive area by-law (where counsel 
argued that the licensee would face the zoning matter when he 
had to and that it was not relevant to his entitlement to a 
licence). ■^^ 

On the other hand, it has been held that a licence cannot 
be refused, in the absence of legislative guidance, to enforce 
a land use control policy not embodied in a restrictive area 
by-law duly passed and approved by the Ontario Municipal 
Board under the Planning Act.^^ A licence cannot be refused 
if the licence fee imposed is prohibitive,^^ or because the 
licensing tribunal is of the opinion that enough licences of the 
class in question have already been issued.**^ 

Objective and Subjective Standards 

The grounds on which a licence can be refused or revoked 
may be expressed in the legislation with varying degrees of 
objectivity or subjectivity. The standards may be entirely 
objective as in the regulation providing that a person shall 

■'^R. V. Yule, [1962] O.R. 584. 




„ ^ , ,_„„, ... .„., (1956), 5 

D.L.R. (2d) 126; Wilcocks v. Township of Pickering, [1961] O.R. 739; Re 
Steven Polon Ltd. and Metropolitan Licensing Commission, [1961] O.R. 810. 

^'Re McCormick et al and the Tozunship of Toronto. [1948] O.W.N. 425. 

''Re Rosenberg and Toronto Board of Health, [1939] O.W.N. 33; 1 D.L.R. 
771; Brampton Jersey Enterprises Ltd. v. Milk Control Board of Toronto, 
[1956] O.R. 1 (C.A.). 



Chapter lb 1105 

lose his driver's licence when he has accumulated fifteen 
demerit points:^^ or they may be almost entirely subjective as 
in the Farm Products Marketing Act/'^ which enables the 
Farm Products Marketing Board to refuse a licence to produce 
tobacco "for any reason that the Board deems proper"/® Other 
examples can be given which fall between these two extremes, 
e.g., under the Securities Act, 1966,''^ a person is entitled to be 
registered under the Act (to enable him to trade in a security 
or carry on some other form of activity regulated by the Act) 
if, in the opinion of the Director of the Ontario Securities 
Commission, he "is suitable for registration and the pro- 
posed registration is not objectionable",^^ His registration 
may be suspended or cancelled where, in the opinion of the 
Director, "such action is in the public interest".^^ Provisions 
such as this provoke the comment: "Sometimes telling the 
agency to do what is in the public interest is the practical 
equivalent of instructing it: 'Here is the problem. Deal with 
it'."^« 

The subjective expression of licensing standards should 
be used only where absolutely necessary and not as a pro- 
tection against interference by the courts. ^^ Ideally, legislation 
should establish licensing schemes wherein licences can be re- 
fused or revoked only on a basis of objective grounds clearly 

"O. Reg. 129/62, as amended by O. Reg. 339/63 and O. Reg. 139/64 made 
under the Highway Traffic Act, R.S.O. 1960, c. 172. 

*°R.S.O. 1960, c. 137. 

'nhid., s. 18(2) (a), as enacted by Ont. 1962-63, c. 45, s. 11. 

^'Ont. 1966, c. 142. 

^nhid., s. 7 (1). 

'nhid., s. 8. 

^''Davis, Administrative Law Treatise, s. 203. For other Ontario provisions 
enabling licences to be revoked if, in the opinion of the tribunal, such 
action "is in the public interest", see: Used Car Dealers Act, Ont. 1964, 
c. 121, s. 5; Collection Agencies Act, R.S.O. 1960, c. 58, s. 6 (3a), as enacted 
by Ont. 1964, c. 7, s. 4(2); Real Estate and Business Brokers Act, R.S.O. 
1960, c. 344, s. 7, as enacted by Ont. 1964, c. 9, s. 5; and Mortgage Brokers 
Registration Act, R.S.O. 1960, c. 243, s. 6, as enacted by Ont. 1964, c. 63, 
s. 4. 

By-Law 68 passed by the Metropolitan Licensing Commission provides 
that a licence may not be issued if the applicant's character "may not be 
good, or that the carrying out of the trade, etc., may result in a breach 
of the law, or may be in any way adverse to the public interest" (ss. 6, 10, 
italics added); and further, that the licence may be revoked for any of the 
aforesaid "reasons" (s. 19), and that a licence may be suspended "for cause" 
until tlie next meeting of the CommisMon (s. 20). 

^^Scc Chapter 17 supra. 



1105 Licensing Pmuers 

set out in the statute. However, if all licensing legislation were 
required to attain this ideal, much of its effective purpose 
Avould be frustrated. Nevertheless, legislation can tend to- 
ward such an ideal if, in conferring a discretion, it contains 
statements of objecti\ e factors that shall be taken into account 
in the exercise of the discretion. The Civil Aviation (Licens- 
ing) Act, 1960, ^" of the United Kingdom provides a good 
illustration of how this can be done in an important licensing 
field. It provides that the Air Transport Licensing Board 
"may at their discretion . . . either refuse the application or 
grant the applicant an Air Senice licence. . . . ",^^ and that "in 
exercising their functions under this section the Board shall 
consider in particular. ..." There follow clearly expressed 
policy considerations.^^ This legislation has not left the licens- 
ing tribunal to formulate the essential elements of the licensing 
policy. It has declared them and at the same time it has left 
with the tribunal the measure of discretion it requires. "Com- 
plete impartiality and integrity" of the administration of a 
licensing policy will be assisted and enhanced if the Legislature 
expresses as far as possible "the purposes envisaged by the 
statute" and the "considerations pertinent to the object of 
the administration",^^ 

We recommend that: 

1. Where power to license is conferred, the purpose of 
the power and the grounds upon which it is to be exercised 
should be carefully determined and then expressed in the 
legislation with as much clarity and objectivity as possible. 

2. If a large measure of discretion is intended to be 
vested in the licensing tribunal, safeguards surrounding the 
exercise of this discretion should be established as in the 
Civil Aviation (Licensing) Act, 1960, of the United King- 
dom. ^^ 

3. The Municipal Act"^ should be amended so as to 
require municipalities, when enacting by-laws thereunder, to 

"I960, 8&:9 Eliz. II, c. 38. 

^''Ibid., s. 2 (!)• 

^*Ibid., s. 2 (2). 

^^See the judgment of Rand, J. in Roncarelli v. Diiplessi, [19591 S.C.R. 121, 

140. 
="1960, 8&9Eliz. II, c. 38. 
'^R.S.O. 1960, c. 249. 



Clinjjlrr 73 1107 

set standards to be inserted in the licensing by-laws indicating 
the matters or grounds on which a licence may be refused, 
revoked or suspended. 

Similar Ontario legislation has given guidance to the 
authorized licensing authorities. Section 247 (5) of the Muni- 
cipal Act provides that a licence shall not be refused "with 
respect of the carrying on of any business by reason only of the 
location of such business where such business was being carried 
on at such location at the time of the coming into force of the 
by-law requiring such licence". This provision, although a 
very limited one, is conspicuous as being one of the few specific 
legislative directions in the licensing field. However, notwith- 
standing its specific terms, its effect can be defeated by the 
provisions of section 247 (4) relieving the licensing tribunal 
of an obligation to give reasons. 

LIMITATION ON THE NUMBER OF 
LICENCES TO BE ISSUED 

Licensing authorities are empowered under the Munici- 
pal Act^*^ to pass by-laws in certain cases limiting the number 
of licences of a particular class that may be issued.^^ 

The power to limit the number of licences that may be 
issued and to refuse a licence on the ground that the specified 
number has been granted, is a control over the relevant area 
of the economy with monopolistic attributes. Where the power 
to limit is conferred and exercised the licence takes on the 
characteristics of a franchise. The real purpose of limiting the 
number of licences to be issued should be to promote the wel- 
fare of the licensee in the public interest. This principle has 
received statutory acknowledgment in statutes other than the 

^''Pursuant to the Municipal Act, the number of licences may be limited for 
the carrying on of the business of a public garage or automobile service 
station where gasoline is stored or kept for sale (s. 379(1), paras. 127, 128, 
129); for the carrying on of the taxicab business (s. 395, para. 1); for the 
business of operating "victualling houses, ordinaries and houses where fruit, 
fish, oysters, clams or victuals are sold or to be eaten therein, and places for 
the lodging, reception, refreshment or entertainment of the public" (s. 399 
(1), para. 5); and for the having in possession for hire or gain of any bil- 
liard, pool, or bagatelle table, including the limiting of the number of tables 
that may be licensed (s. 401, para. 1). And see s. 248 (2), which enables the 
council to limit the number of licences and the number of tables "to such 
number as the council may deem fit even if the number be limited to one". 



1108 Licensing Powers 

Municipal Act,*^" such as the Public Commercial Vehicles 
Act,*^^ and the Farm Products Marketing Act.^- The power to 
limit the number of licences issued is a far-reaching one and 
should only be conferred when accompanied by adequate safe- 
guards for the rights of the individual. Under the Municipal 
Act the power is to be exercised by the passage of a 'by-law". 
The limitation, or an objective formula for determining the 
limitation, should be expressed in the by-law. 

The Metropolitan Licensing Commission of Metropoli- 
tan Toronto in its licensing by-law*'^ used this formula: 
"There shall not be issued by the Commission a greater num- 
ber of taxicab owner licences than the number set by reso- 
lution of the Commission." The number of taxicab owner 
licences in the Metropolitan Toronto area was provided for 
in a formula fixed by a resolution of the Metropolitan Licens- 
ing Commission at one licence per thousand population of 
Metropolitan Toronto. This did not comply with the Munici- 
pal Act,^^ which states: "By-laws may be passed . . . for lim- 
iting the number of cabs . . . used for hire." The principle or 
the formula for determining the number should have been 
fixed in a by-law.^° 

Quite apart from this interpretative point, subordinate 
or delegated legislative power of a monopolistic character, 
affecting the rights of the community as a w^hole, should not 
be exercised by a non-elected body. If the number of licences 
for taxicabs or restaurants or other facilities serving the pub- 
lic is to be limited in any community, the principle or the 
formula for fixing the number should be determined by legis- 
lation publicly debated and passed by the elected representa- 
tives of the people. This is an elementary safeguard for the 
rights of the individual. This principle is consistent with the 
general policy of section 247 (2) of the Municipal Act*^® which 

""R.S.O. I960, c. 249, s. 399 (1) para. 5. 

"R.S.O. 1960, c. 319. 

'=R.S.O. 1960, c. 138, s. 18, as enacted by Ont. 1962-63, c. 45, s. 11, as amended 
by Ont. 1965, c. 39, s. 5(1) (2), and as further amended by Ont. 1966, c. 56, 
s.2(l)(2). 

"By-Law No. 49, enacted on the 24th of July, 1963, Schedule 8, para. 48. 

"^R.S.O. 1960, c. 249, s. 395, para. 1. 

®°By-Law 49 has since been repealed and replaced by By-Law No. 68, requir- 
ing that the number of taxicab licences be fixed by by-law. 

"^R.S.O. 1960, c. 249. 



Chapter lb 1109 

provides that it is the couiKil and not a Board of Commis- 
sioners ol Police, where such Board is the licensing body, 
which fixes the ice to be paid for a licence. 

In making this recommendation we are not unmindful 
of the fact that before decisions of this nature can be made 
intelligently they must be based on accurate information and 
a substantial element of administrative expertise. If relevant 
information is re(|uired in order to determine the number of 
licences that should be issued for any trade or calling, an 
in([uiry procedure could be provided, through which the 
information would be acquired, and the general public could 
have an opportunity to be heard. An analogous practice is 
followed under the Public Conniiercial Vehicles Act''^ in deter- 
mining public necessity and convenience. Where it is intended 
to fix quotas for licences there should be no difficulty in hold- 
ing a public hearing by a committee of the municipal council 
before a decision is made. 

The Farm Products Marketing Act^^ provides another 
illustration of a delegation, and of a subdelegation, of legis- 
lative power to non-elected bodies, which when exercised pro- 
duces monopolistic results. The Farm Products Marketing 
Board is empowered, inter alia, to make regulations providing 
for "the fixing and allotting to persons of tobacco acreages 
or other production quotas on such a basis as the Board deems 
proper". ^'^ This gives power to the Board to restrict a tobacco 
farm owner from growing tobacco on his own land beyond the 
stipulated acreage and to prohibit others from growing to- 
bacco. The Act goes on to provide that the Farm Products 
Marketing Board may delegate this power to the local board. 
This has been done.'^° 

The Ontario Flue-Cured Tobacco Growers' Marketing 
Board has passed (May 6, 1968) what are called "General 
Regulations" pursuant to this subdelegation to implement the 
acreage allotment provisions of the Farm Products Marketing 
Act. The local board derives its legal power to limit a farmer 

""R.S.O. 1960, c. 319, s. 4. as amended bv Out. 1961-62, c. 114, s. 4. 
""R.S.O. 1960, c. 138, s. 18, as enacted by Ont. 1962-63, c. 45, s. 11, as amended 
by Ont. 1965, c. 39, s. 5(1) (2), and as further amended by Ont. 1966, c. 56, 

s. 2(1)(2). 
^nhid., s. 18(2)(b)(ii). 
'°0. Regs. 107/63, 108/63 and 125/63. 



1110 Licensing Powers 

in the use of his land from a regulation passed by the Farm 
Products Marketing Board— an appointed body. If such a 
power is needed in the public interest it is one of such conse- 
quence to the general public that it should only be exercised 
by the Legislature, or by the Lieutenant Governor in Council, 
a body directly accountable to the Legislature. Under the pres- 
ent law the cabinet is two levels away from the formulation 
and enforcement of a detailed policy of land use.^^ 

THE TRANSFER OF LICENCES 
HAVING A MONOPOLY VALUE 

Where the law restricts the number of licences which 
may be issued to those engaging in a particular trade or occu- 
pation, difficult questions arise concerning the right of an 
owner to transfer his licence to another person. Three main 
interests are involved: 

(1) The interest of the licence holder in selling his prop- 
erty for whatever it will fetch in the market place. The law 
of supply and demand will give the licence a market value 
quite apart from any goodwill attached to the business carried 
on by the licensee; 

(2) The interest of the qualified and deserving person 
who wishes to engage in the trade or occupation in question 
to do so on a fair and equitable basis without having to "buy 
a licence" from another licence holder; 

(3) The interest of the public in having the benefit of 
free competition. 

Apart from licences issued for the purpose of collecting 
revenue and maintaining records, the only justification for a 
licensing scheme is the promotion of the public interest in 
good service, safety, health, and in some cases, the economic 
welfare of the licensees. Generally speaking, there can be 
no justification for a scheme of licensing that creates a fran- 
chise with a marketable value for the licensee. It may be that 
this is a necessary consequence in some cases, but the public 
interest demands that adequate safeguards be provided against 
public and private exploitation. 

''^The operation of the Farm Products Marketing Board will be discussed in 
detail in Report Number 2. 



Chapter 15 1111 

Special representations were made to this Commission 
concerning the licensing procedure adopted in Metropolitan 
Toronto with respect to taxicab licences. The Licensing Com- 
mission maintains a list ol applicants who are eligible to 
receive a licence in their turn when new licences are issued 
by reason of an increase in the population ol Metropolitan 
Toronto.'- However, licensees are free, in effect, to transfer 
their licences to purchasers who may not be on the list, in 
accordance with the rele\ant by-law of the Commission. '^^ A 
cab owner "may sell his cab and its equipment to any person 
and upon such sale the owner's license isstied in respect of such 
cab shall be terminated. . . . [T]he Connnission may in its 
discretion issue a new licence to the purchaser of such taxi-cab 
vehicle and ecpiipment subject to the following conditions: 

. . . (i.) That the new applicant qualifies under all other 
provisions of this By-law, and is a resident of Metropolitan 
Toronto."'-^' Six other conditions follow. Under this system, 
w^hen the Commission issues a licence to the purchaser, as in 
practice it does, the vendor realizes a monopoly value of his 
licence on the sale of the vehicle and equipment.'^ While the 
licence fee payable to the Commission for a new licence is only 
$300, it was recently reported that a cab and licence were 
"sold", with the approval of the Commission for the sum of 
.'$14,500.'^ Whether this figure is correct or not, the monopoly 
value of taxicab licences in Metropolitan Toronto is very high 
and in the last analysis it is the members of the public who 
use taxicabs w'ho bear this cost. 

In the years prior to 1963, the Licensing Commission fol- 
lowed the policy of requiring cab owners intending to sell 
their vehicles as cabs, to sell to the next eligible person on a 
list kept by the Commission, at a price determined by the 
Commission— which price did not take into account the mon- 
opoly value of the licence. However, it was decided, in 1963, 
to depart from this practice. In the brief filed with us by 

'^By-Law No. 68 of the Metropolitan Licensing Commission, Schedule 8, s. 48A. 

'nbid.. Schedule 8, s. 27. 

''''Ibid., Schedule 8, s. 27(l)(2)(i). 

^*Brief of the Metropolitan Licensing Commission, 7-8. 

"Toronto Star, June 15, 1967, p. 7. 



1112 Licensing Pouters 

the Metropoliiau Licensing Commission, the reason for the 
change was explained in this way: 

"... [EJxperience indicated that there was widespread flout- 
ing and circumvention of these regulations, which tended to 
bring the whole by-law into disrepute and contempt. Most 
of the revocations of cab owners' licences arose from attempts 
by this Commission to enforce the by-la^v in regard to illegal 
sales. Finally, the Commission in 1963 decided to bring mat- 
ters into the open by permitting the sale of a taxicab at what- 
ever price the parties agreed to. Section 27 of Schedule 8 
of the by-law no^v permits the making of an Agreement for 
the sale of a taxicab upon an all-cash basis. If the Agreement 
is approved by the Commission the existing licence is ter- 
minated and a new licence is issued. 

In the two years since this change was made it has been 
noted that the monopoly value of a cab owner's licence has 
increased from 51,500.00 to S5,000.00 or more, which would 
appear to indicate that cab o^vnership is a desirable asset and 
presumably a profitable btisiness under the present regula- 
tions. 

Recognition of the right to deal in the monopoly value of a 
licence in addition to being more realistic has made it pos- 
sible for the Licensing Commission to insist upon higher 
standards in the industry in dealing with the public, espe- 
cially as regards the mechanical condition of taxicabs and the 
regulations have been tightened in regard to the age of taxi- 
cab vehicles, and some of the monopoly value of the licence 
has been channelled back to the Licensing Commission, rep- 
resenting the public, in the fonn of increased licence and 
licence renewal fees."^® 

On our request, the Chairman of the Licensing Commis- 
sion elaborated on this submission in a letter to this Com- 
mission: 

"The type of transactions [under the transfer system existing 
until the change in 1963] that were used to effect a transfer 
of the ownership without a sale were varied but generally 
took the form of rental agreements, partnership agreements 
and management agreements, none of which came before the 
Commission. These were the methods used to circumvent 
the Commission's regulations as referred to in the submis- 
sion to the Royal Commission. The Commission attempted 
to regulate management agreements by requiring affidavits to 



^^Brief of the Metropolitan Licensing Commission, 7-8. 



Chapter 75 111."^ 

be taken by the owner of the licence and by prescribing the 
form of contract to be used by the manager and licensee. It 
was found that notwithstanding the form of contract for 
management, licences were in essence being sold. This is 
best illustrated in the reported case Re Szabo and Metropoli- 
tan Toronto Licensing Commission, [1963] 2 O.R. 426. '"^'^ 

We recognize that in a large urban area such as the 
Municipality of Metropolitan 7 oronto, in a field such as the 
taxicab industry,"^ it may be difficult to police a licence-issuing 
and transfer policy, but we do not find the reasons given by 
the Commission convincing. 

Any argument based upon cab ownership being a "desir- 
able asset and presumably a profitable business under the 
present regulations", is neither sound nor logical. It should 
not be the purpose of a licensing system to enhance the profit- 
ability of the business of a licensee beyond what is necessary 
to give good service to the public and a reasonable return to 
the licensee from his labours. The latter interest is guaran- 
teed by the limitation on the number of licences that may be 
issued, and not by the right to make a profit on the sale of 
licences under the present government-created monopoly. It 
is hard to see any relationship between the right to deal in 
the monopoly value of a licence and the ability of the Com- 
mission to insist on higher standards in the industry. 

If there was difficulty in preventing trafficking in licences 
prior to 1963 by reason of illicit transfers through "rental 
agreements, partnership agreements and management agree- 
ments", the real cause for the difficulty must have been that 
the fares were so high that, taken with the limitation on the 
number of licences issued, the licences had a very high market- 
able value. 

Finally, the argument that "some of the monopoly value 
of the licence has been channelled back to the Licensing Com- 
mission, representing the public, in the form of increased 
licence and licence renew'al fees" is untenable. If this were 
true it would be an indirect tax on the users of taxicabs for the 



'■Letter, June 13, 1967. 

'*See the Report of the Advison' Committee on Taxicabs to the Board of 
Commissioners of Police of the City of Toronto, April 12, 1932, 30-32; and 
the Report of the Committee on Taxicabs to the Board of Commissioners 
of Police for the City of Toronto (1952), 13-16. 



1114 Li ccri.sitig Powers 

benefit of the public at large, which is not the purpose of the 
licensing scheme. But the thesis is not sound. The purchaser 
from a licensee pays the monopoly value to the licensee and 
it is he, not the vendor, who pays the increased licence fee to 
the Commission. The purchaser of the licence must recoup 
for himself, out of fares collected from users of taxicabs, not 
only the purchase price of the licence but the "increased 
licence fee". This policy of the Licensing Commission of 
Metropolitan Toronto appears to be in direct violation of the 
intent of its general licensing by-law: ^^ 

"17. (1) No person shall enjoy a vested right in the continu- 
ance of a licence and upon the issue, renewal, transfer, can- 
cellation or suspension thereof, the value of a license shall 
be the property of the Metropolitan Licensing Commission. 

(2) No license shall be transferred except with the consent 
in writing of the Commission and the Commission shall not 
be bound to give such consent." 

In practice, a cab owner may not transfer his licence; he 
may only sell his taxicab vehicle, equipment and the goodwill 
attached to the business. The licence is terminated and the 
Commission issues a new licence. It however treats "the 
value of a licence" as the property of the licence holder and 
not that of the Commission. The public interest demands 
that licensing laws should be written so as to make it clear 
that the monopoly value created by the limitation of numbers 
of licences cannot be turned to private adxantage. A licensee 
should not be able to reap a benefit for himself by reason of 
the limitation of the number of licences. He has done nothing 
to create this wealth. It is the users of the taxicab, together 
with the limitation on licences that may be issued, that have 
created it. 

If there is to be a limitation on the number of licences 
issued, the licensing tribunal should maintain a list of appli- 
cants for licences, available for public inspection. When the 
holder of a licence no longer wishes to use it, he should return 
it to the tribunal and a new licence should be issued to the 
person qualified and entitled to it whose application has been 
filed with the Commission for the longest period of time. 

"By-Law No. 68 of the Metropolitan Licensing Commission, s. 17. 



Chapter 75 1115 

STRUCTURE AND ORGANIZATION OF 
LICENSING TRIBUNALS 

We use the term "licensing tribunal" to mean that body 
which administers licensing laws— the body that grants, re- 
fuses, renews, suspends or revokes licences, as distinct from 
the body that enacts licensing laws. In Chapter 10 we state 
that judicial power should appropriately be exercised by 
impartial bodies, independent of political control. In their 
decisions they should strive to be just in the same sense as 
justice is done in the courts. The exercise of administrative 
power should appropriately be subject to political control. 
The extent to which a licensing tribunal exercises strictly 
judicial power is governed entirely by the extent to which it 
is required to apply clearly established principles to the cases 
which come before it and to follow a fair procedure. The 
degree of its administrative power is measured by the amount 
of unfettered discretion it has after legal rules have been 
applied. 

The classification of licensing tribunals affects not only 
the appropriate principles to govern their structure and organ- 
ization, which we are now considering, but also those govern- 
ing procedure, judicial review, and appeals which we discuss 
later. 

Most licensing tribunals now exercise both judicial and 
administrative powers. Although we have recommended that, 
where possible, these should be separated, so that proper prin- 
ciples may be applied, in many cases they are so interw^oven 
that this cannot be done. In such cases the principles of the 
exercise of judicial power independently of political control 
and the exercise of administrative power subject to political 
control, conflict. As we have said in Chapter 10, no new appli- 
cable principles can be devised and a practical solution must 
be adopted. The courses to be followed with respect to struc- 
ture and organization, procedure, judicial review, and appeals 
all require special consideration. 

So far as structure and organization of tribunals are con- 
cerned, we have come to the conclusion that where a licensing 
tribunal exercises some administrative powers the tribunal 
ought not to be established as an independent body in the true 



11 16 Liceiising Powers 

sense. Provincial licensing bodies should continue to be 
appointed by the Lieutenant Governor in Council and hold 
office during pleasure and, where municipal licensing tribunals 
are appointed, they should continue to be appointed as they 
are now.^" 

Although licensing tribunals that make policy should be 
under government control, they should act independently in 
the sense of being impartial in the administration of a de- 
clared policy. In this respect their proceedings should be 
conducted in substantially the same manner as those of judicial 
tribunals. They should not "appear in the role of prosecutors 
and judges in the same cause". ^^ The task of investigating 
complaints and making presentations to the tribunal should 
be performed by other public servants. 

DELEGATION OF THE POWER TO 
ISSUE AND RENEW LICENCES 

Power to issue licences may be properly delegated by a 
licensing tribunal to one or more of its qualified officials, 
with the duty to conduct the necessary investigations and 
apply the relevant legislative standards. Such a delegation is 
essential to any good licensing scheme where large numbers 
of licences are issued annually.^- The licensing tribunal 
should devote its time and attention solely to difficult and 
contested applications. 

The power to issue a licence and the power to refuse to 
issue, or to revoke one, are different matters. Subject to the 
exception to which we shall immediately refer, no official 
should have the power to refuse, suspend or revoke a licence. 

Under the Municipal Act,^^ a chief constable of a munici- 
pality, where a board of commissioners of police is the licen- 
sing tribunal, may suspend a licence in certain circumstances 

*°See Chapters 45, 46 and 39 supra with respect to county and district court 
judges and magistrates acting as members of boards of commissioners of 
poHce and of licensing boards. 

*^Chapter 2, p. 49 supra. 

*-In 1964 the total number of licences issued by the Metropolitan Licensing 
Commission of Metropolitan Toronto was 69,974: See Brief of the Metro- 
politan Licensing Commission, 1. 

"R.S.O. 1960, c. 249, s. 247 (7) (8). 



Chnljirr 75 1117 

for a time no longer than "the expiration of two weeks from 
the date of suspension or alter the time of the next meeting 
of the board after the suspension, whichever occurs lirst". This 
power is justified, provided that the applicable by-law sets out 
appropriate standards to govern the exercise of the power. 

In all cases where the issuing official believes that an 
application should be refused, it should be referred to the tri- 
bunal to be dealt with in accordance with the procedure which 
we shall discuss later. 

ENACTMENT OF LICENSING LAWS 

In principle, basic licensing laws should be enacted by 
democratically elected bodies. In the provincial sphere this is 
not always possible. Detailed regulations concerning licen- 
sing schemes under such statutes as the Farm Products 
Marketing Act*^^ and the Elevators and Lifts Act,^^ must 
necessarily be enacted by the Lieutenant Governor in Council 
—a body directly responsible to the Legislature. On the 
municipal level, licensing by-laws should be enacted by the 
respective councils and not by boards of commissioners of 
police or the Metropolitan Licensing Commission. 

RECOMMENDATIONS 

1 . Licensing requirements should not be unnecessarily im- 
posed nor should unreasonable standards be required in 
their implementation. 

2. All powers which naturally relate to licensing, such as the 
power to revoke or suspend, should be stated expressly in 
the legislation conferring the power so that those affected 
by the exercise of the power may be under no doubt as 
to their rights and potential liabilities. Such powers 
should not be left to implication. 

3. The particular purposes or policy sought to be imple- 
mented by licensing legislation should be first determined 
and then clearly expressed in the legislation. 

"R.S.O. I960, c. 137. 
"R.S.O. 1960, c. 119. 



1118 Licotsiftg Powers 

4. If a large measure of discretion is intended to be vested 
in a licensing tribunal, safeguards surrounding the exer- 
cise of this discretion should be established as in the 
Civil Aviation (Licensing) Act, 1960, of the United 
Kingdom. 

5. The Municipal Act should be amended so as to require 
municipalities, when enacting by-laws thereunder, to set 
standards to be inserted in the licensing by-laws indicat- 
ing the matters or grounds on which a licence may be 
refused, revoked or suspended. 

6. The pow^r to limit the number of licenses issued should 
only be conferred when accompanied by adequate safe- 
guards for the rights of the individual. 

7. Subordinate legislative power in the licensing field con- 
ferring monopolistic privileges affecting the rights of the 
community as a whole, should be exercised by an elected 
body or, if this is not possible, by a body directly account- 
able to an elected body, such as the Lieutenant Governor 
in Council. 

8. Where a limitation on the number of taxi-cab licences 
issued is provided, the licensing tribunal should maintain 
a list of applicants for licences available for public inspec- 
tion. When the holder of a licence no longer wishes to use 
it, he should return it to the tribunal and a new licence 
should be issued to the person qualified and entitled to 
it whose application has been on file with the licensing 
tribunal for the longest period of time. 

9. Where a licensing tribunal exercises some administrative 
powers the tribunal ought not to be established as an 
independent body in the true sense. Provincial licensing 
bodies should continue to be appointed by the Lieutenant 
Governor in Council and hold office during pleasure and, 
where municipal licensing tribunals are appointed, they 
should continue to be appointed as they are now. 

10. The proceedings of licensing tribunals should be con- 
ducted in substantially the same manner as those of 
judicial tribunals. The task of investigating complaints 



Chapter 75 1119 

and making presentations to tlic tribunal should not be 
performed by members of the tribunal. 

1 1 . Power to issue licences may properly be delegated by a 
licensing tribunal to one or more of its (jualified officials. 

12. Subject to the Municipal Act,^" no official should liave 
the power to refuse, suspend or revoke a licence. In all 
cases where the issuing official believes that the applica- 
tion should be refused, the matter should be referred to 
the tribunal to be dealt with in accordance with the 
procedure recommended in this Section. 

13. Basic licensing laws should be enacted by democratically 
elected bodies. In the provincial sphere, where detailed 
regulations are required these should be enacted by the 
Lieutenant Governor in Council. 



^''R.S.O. 1960, c. 249, s. 247 (7) (8). 



CHAPTER 76 

Safeguards on the Exercise of 
Licensing Powers 

PROCEDURAL SAFEGUARDS 

No Notice or Hearing Required Where Initial 
Decision is to Grant a Licence 

It is obvious that no hearing should be required where 
a licence is issued in the first instance. The important thing 
is the effective administration of the licensing law with as 
little inconvenience to the public as possible.^ 

Notice of Grounds for Refusal to Grant 

a Licence and an Opportunity to be Heard 

If, in the course of processing an application for a licence, 
the issuing officer considers that there are grounds for reject- 
ing the application, the licensing tribunal should hold a 
hearing at which the applicant should be given the opportu- 
nity to fully present his case. Preceding the hearing, sufficient 
information should be given to the applicant to enable him 

^See Cooper, State Administrative Laic, 150: "A distinction should be noted 
(although it is not often the subject ol discussion in court opinions) 
between the granting and the denial of license applications. If the out- 
come of the case is the granting of the license, the applicant cares little 
whether he has been granted a hearing or not; it is the grant of the license 
that is important." 

1120 



Chapter 76 1121 

to meet the case against him. The hearing should comply with 
the pro\ isions oi the Statutory Powers Procedure Act recom- 
mended in Chapter 14. 

Notice in Revocation Proceedings 

Few mnnicipal licensing by-laws in Ontario provide for 
notice prior to the rexocation ol a licence. By-law No. 91 of 
the Board of Commissioners of Police of the City of Windsor 
is an exception.- The Board may cancel or suspend a taxicab 
licence, "but such action shall be taken only after notice has 
been given to the person affected requiring him to appear 
before the Board at a time and place specified in such notice 
and to show cause why such a licence or permit should not be 
revoked or suspended. . . ."^ By-law No. 68 of the Metropoli- 
tan Licensing Commission, empowering the Commission to 
revoke licences, concludes: "... but before revoking any such 
license the holder thereof shall be given at least 7 days 
notice . . . and shall be permitted either by himself or by his 
representative to appear before the Commission to show cause 
why he believes such licence should not be revoked."^ Provi- 
sion for notice of revocation or suspension proceedings should 
be in all licensing by-laws, unless there are very exceptional 
circumstances where public health or safety is involved. 

The notice should set out briefly the grounds on which 
it is alleged that the licence should be revoked, and, where 
possible, a statement or summary of the evidence, if any, 
against the licence holder. The initial decision to initiate 
revocation or suspension proceedings is often based on infor- 
mation, material or documents contained in a report to the 
tribunal. Such evidence, if not given to the licensee with the 
notice, should be made available for his inspection prior to the 
hearing. This is the policy of the Metropolitan Licensing 
Commission. It makes reports upon which complaints are 
based available upon request. It was submitted that "the 
notice of hearing makes it clear that details of the allegations 
against the licensee are available to him in advance".^ This is 

"Bv-law No. 91 of the Board of Commissioners of Police for the Citv of 
VVindsor, s. 41(b). 
'J bid. 

*By-law No. 68 of the Metropolitan Licensing Commission, s. 19(1). 
^Brief of Metropolitan Toronto Taxicab Conference, Inc., 3. 



1122 Safeguards on Licensing Powers 

essential lor a licensee to make adecjuate preparation for the 
bearing. In the United States, provisions of this type are con- 
tained in the Revised Model State Administrative Procedure 
Act (discussed in Chapter 12). These require that the notice in 
revocation proceedings specify the "facts or conduct which 
warrant the intended action"." The Federal Administrative 
Procedure Act' (also discussed in Chapter 12) requires that in 
such proceedings "facts or conduct which may warrant such 
action [the withdrawal, suspension, revocation or annulment 
of any licence] shall have been called to the attention of the 
licensee". 

Opportunity to Achieve Compliance 

The provisions in the American Acts concerning notice 
prior to revocation proceedings contain requirements binding 
on the licensing agency which are peculiar to the licensing 
function and cover more than procedural rights. They confer 
also rights of a substantive nature. It is useful to set them 
out in full. 

The Federal Administrative Procedure Act provides: 

"9. (b) . . . Except in cases of willfulness or those in which pub- 
lic health, interest or safety requires otherwise, no withdrawal, 
suspension, revocation, or annulment of any license shall be 
lawful unless, prior to the institution of agency proceedings 
therefor, facts or conduct which may warrant such action 
shall have been called to the attention of the licensee by the 
agency in writing and the licensee shall have been accorded 
opportunity to demonstrate or achieve compliance with all 
lawful requirements . . .".^ 

The Revised Model State Administrative Procedure Act 
provides: 

"14. (c) No revocation, suspension, annulment or withdrawal 
of any license is lawful unless, prior to the institution of 
agency proceedings, the agency gave notice by mail to the 
licensee of facts or conduct which warrant the intended 
action, and the licensee was given an opportunity to show 
compliance with all lawful requirements for the retention of 
the license. . . ."*-' 



"Revised Model State Administrative Procedure Act, s. 14(c). See p. Mb supra. 

•60 Stat. 237 (1946), 5 U.S.C.A. § 1001 et seq. (1946), s. 9(b). See p. 180 supra. 

'Ibid. 

•Both of these provisions are referred to in Chapter 12 supra. 



Chapter 76 1123 

The provisions of the Revised Model Stale Adniinistra- 
tivc Procedure Act have been adopted in several states of the 
union. ^" The recjuirenients that "the licensee shall have been 
given an opportunity to demonstrate or achieve compliance 
with all lawful recjuirements"'' in the Federal Act, and that 
"the licensee was given an opportunity to show compliance 
Avith all lawful requirements for retention of the licence" in 
the Revised Model Slate Administrative Procedure Act, intro- 
duce an element of flexibility into the administration of licens- 
ing laws— an element that is not inconsistent with the basic 
purpose of licensing— and put a restraint on arbitrary action. 
They contain principles that should have statutory expression 
in Ontario, either in ilic licensing statutes or in the proposed 
Statutory Powers Procedure Act.^'- 

Onus of Proof In Revocation Proceedings 

By-law No. 91 of the Board of Commissioners of Police of 
the City of Windsor/^ and Metropolitan Toronto Licensing 
Commission By-law No. 68, to which we have referred, put the 
obligation on the licensee to "show cause" w^hy the licence 
should not be suspended or revoked. It is wrong to place the 
burden on the licensee to show grounds why his licence should 
not be suspended or revoked, rather than placing this burden 
on those who allege that grounds for suspension or revocation 
exist. The injustice is compounded w-here the existing laws 
do not afford the licensee the right to know the case against 
him. 

When a licence has been granted by a licensing tribunal 
it is fair to assume that, at that time, the person licensed is 
legally entitled to it. If it is alleged that he has become dis- 
entitled to it, then the onus of satisfying the tribunal, on the 
balance of probabilities, that this is the case, should be on 
those who so allege. The licensing tribunal should not revoke 

^"Cooper, Slate Administrative Law, 492, n. 39. 

^^Italics added. 

"For practical reasons for such a provision, see Cooper, State Administrative 

Law, 497. 
"By-law No. 91 of the Board of Commissioners of Police of the City of 

Windsor, s. 41 (b). 



1124 Safeguards oji Licensing Powers 

or cancel a licence until this onus has been satisfied. Provision 
for appeals on the record, which we shall later recommend, 
should ensure compliance with this rule. 

Provincial Procedural Legislation 

Recent provincial licensing legislation has shown a com- 
mendable trend towards conferring procedural rights on those 
affected by licensing schemes. The Securities Act, 1966,^^ con- 
tains a limited code of procedure. The Director shall not 
refuse to grant or refuse to renew registration "without giving 
the applicant an opportunity to be heard". ^'^ He is obliged to 
give a registrant an opportunity to be heard before suspend- 
ing or cancelling any registration, except where the granting 
of an opportunity to be heard would, in his opinion, be "pre- 
judicial to the public interest", in which case the decision is 
subject to review by the Ontario Securities Commission. ^^ 
The Act provides rules to be applicable "at a hearing required 
or permitted under the Act to be held before the Commission 
or the Director. . ."^^ These rules provide that "notice in 
writing of the time, place and purpose of the hearing shall be 
given to any person or company that, in the opinion of the 
Commission or the Director, is primarily affected by such 
hearing" in "addition to any other person or company to 
whom notice is required to be given";^^ that "the person pre- 
siding shall receive such evidence as is submitted by a person 
or company to whom notice has been given . . . that is relevant 
to the hearing. . . ."^^; that "at the hearing or hearing and 
review by the Commission, all oral evidence received shall be 
taken down in writing and together with such documentary 
evidence and things as are received in evidence by the Commis- 
sion shall form the record" ;-° that written reasons for deci- 
sions adversely affecting "the right of a person or company to 
trade in securities" be issued on request;-^ and that "a person 

"Ont. 1966, c. 142. 
^''Ibid., s. 7 (2). 
^'Ibid., s. 8. 
"Ibid., s. 5. 
"/&/rf., s. 5, Item 1. 
"/btrf., s. 5, Item 3. 
''"Ibid., s. 5, Item 4. 
'^Ibid.j s. 5, Item 5. 



Chafilrv 76 1125 

or company attending or submitting evidence at a hearing 
pursuant to item 1 may be represented by counsel". -- 

There are many statutes conferring licensing powers on 
tribunals which contain lew or no procedural safeguards 
for the rights of the licensee or the public. We refer particu- 
larly to the Municipal Act"^ which we are about to discuss and 
many of those statutes conferring licensing powers on self gov- 
erning bodies with which we deal in Section 4 of this Part. 

Municipal Procedural Legislation 

In the wide municipal licensing field, the relevant pro- 
cedural law is in a chaotic state. As we have indicated, most 
of the legislation authorizing licensing by-laws is passed under 
the Municipal Act, which uses the simple formula "by-laws 
may be passed . . . for licensing regulating and governing 
of [the business in question]" and "for revoking any such 
licence". The Act does not require that procedural provisions 
be contained in the by-laws authorized. 

There is one procedural licensing provision in the Muni- 
cipal Act. It is a negative one which takes away rights. Under 
section 247 (4) the applicant for a licence, or a licensee, is 
denied the right to have reasons for a refusal to grant a licence 
or for a revocation of one. 

We have examined representative licensing by-laws sub- 
mitted to us by eight of the larger municipalities in Ontario- 
Fort William, Port Arthur, Sault Ste. Marie, Windsor, Hamil- 
ton, Ottawa, Kingston and the Municipality of Metropolitan 

""Ibid., s. 5, Item 7. See also the following recently enacted statutory pro- 
visions: Used Car Dealers Act, 1964, Ont. 1964, c. 121: opportunity to 
be heard before application for registration or renewal thereof is refused, 
s. 4 (3); opportunity to be heard before registration is suspended or can- 
celled, s. 5; tlae right, in certain circumstances, to have application or 
cancellation proceedings referred to an advisory board for hearing, s. 6 (2); 
the right to written reasons for decisions refusing to grant a registration or 
a renewal thereof or suspending or cancelling the same, s. 8. There are 
virtually identical provisions in: Collection Agencies Act, R.S.O. 1960, c. 58, 
ss. 6(3), 6 (3a), 6a (2) and 6c, as enacted by Ont. 1964, c. 7, ss. 4(2), 5; Real 
Estate and Business Brokers Act, R.S.O. Vj60, c. 344, ss. 6(2), 7 and 8(2), 
as enacted by Ont. 1964, c. 99, s. 5; and Mortgage Brokers Registration Act, 
R.S.O. 1960, c. 244, ss. 5(3), 6, 6a (2) and 6c, as enacted bv Ont. 1964, c. 63, 
s. 4. 

"R.S.O. 1960, c. 249. 



1126 Safeguards on Licensing Powers 

Toronto. A significant feature of many of tliese by-laws is the 
general absence of any reference to such procedural matters as: 

(1) Notice to the person affected prior to the refusal or 
revocation of a licence; 

(2) The right to a hearing; 

(3) The right to reasons. 

These by-laws appear to be directed more toward ad- 
ministrative expedience and convenience than to the protec- 
tion of the civil rights of individuals. The suspension and 
revocation provisions of the by-law passed by the Board of 
Commissioners of Police for the City of Hamilton, covering 
some twenty-two trades or businesses, are typical. They read: 

"13. Upon the Board's decision to suspend or revoke any li- 
cence which may lawfully be revoked, the issuer of licences 
shall give written notice by ordinary prepaid mail addressed 
to the licensee at his most recent address on record with the 
issuer of licences, and no such suspension or revocation shall 
take effect until 48 hours after the mailing of such notice, 
exclusive of Sundays and holidays; and before the expiration 
of such period the licensee sliall be responsible that the 
licence certificate and all licence plates and identification 
cards belonging to the Board are returned to the Board by 
delivery to the issuer of licences."-^ 

These provisions assume the validity of a decision to sus- 
pend or revoke a licence— but there is nothing in the by-law 
itself providing for any steps which should be taken to lead to 
a valid decision. No concern is shown for the protection of the 
rights of the licensee and his interests, which may be very sub- 
stantial. The only concern is that the revocation should not 
take effect until such time as the licensee will probably have 
received notice of the decision. The fairness of the decision to 
revoke is not material, but the return of the plates and docu- 
mentation respecting the licence is. It is unnecessary to 
emphasize that irreparable harm may be done to a licence 
holder by an unwarranted revocation of his licence. Under 

^*By-law No. 4 of the Board of Commissioners of Police for the City of Hamil- 
ton, s. 13. Provisions identical with the foregoing can be found in By-Law 

10467, s. 15 (concerned with some eleven trades and businesses) and By-Law 

10468, s. 9 (concerned with certain construction trades and businesses) 
passed by the Council of the City of Hamilton. 



Chapter 76 1127 

existing law he can receive no compensation, except in the 
very unusual case where the licensing body has acted corruptly. 
In referring to tlie by-laws submitted to us, we do not 
single out the respective municipal authorities for criticism 
but treat the by-laws as typical examples of those passed under 
the Municipal Act. 

Statutory Powers Procedure Act 

The minimum rules of procedure which we have recom- 
mended be enacted in the Statutory Powers Procedure Act"'' 
should apply to all proceedings by licensing tribunals except: 

(1) Where a licence is granted on an initial application; 

(2) Where for reasons of public safety, health or emergency, 
immediate action is required. 

If the powers of licensing tribunals are conferred in 
accordance with the principles we have recommended in 
Chapter 75, the element of administrative discretion left to 
most licensing tribunals will not be large and will be con- 
trolled to a great extent by defined statutory purposes and 
standards. 

We have therefore concluded that additional rules appli- 
cable to judicial tribunals made by the Statutory' Powers Rules 
Committee can and should, for the most part, be applicable 
to proceedings by licensing tribunals. The additional rules 
proposed are: 

(1) Decisions should be based on a record; 

(2) No consultation after the hearing in the absence of 
affected parties; 

(3) The deciding members of the tribunal should be pres- 
ent at the hearing; and 

(4) All evidence should be taken down by a skilled reporter 
or otherwise recorded. 

The extent to which these additional rules may be ap- 
plied to a particular licensing tribunal will depend on the 
nature of its powers and should be a matter for the decision 
of the Statutory Powers Rules Committee. ^^ 

-^See pp. 212 ff. suprn. 
-"Stc p. 219 5Mpra. 



1128 Safeguards on Licensing Powers 

JUDICIAL SAFEGUARDS 

Judicial Review 

An adequate and expeditious supervision of the decisions 
of licensing tribunals by the courts is an essential safeguard 
against arbitrary action. The subject of judicial review has 
been dealt with in Section 5 of Part I of this Report. 

In accordance with the principles there set out, decisions 
of licensing tribunals subject only to the minimum rules of 
procedure enacted in the Statutoi^ Powers Procedure Act 
would be subject to review on all grounds of ultra vires and 
for eiTor of law on the face of the record. Decisions of licensing 
tribunals to which the additional rules for judicial tribunals 
are applied would be subject to review on these grounds and 
for lack of substantial evidence in the record. 

Right of Appeal 

The protection afforded by judicial review is a limited 
one. In cases where a wider revie^v is desirable an appeal must 
be provided.-' 

The need for a right of appeal from decisions of licensing 
bodies is widely recognized in the statutes of Ontario, e.g., 
the statutes relating to the self-governing professions and occu- 
pations dealt with in Section 4 of this Part, the Securities 
Act, 1966,-'^ the Real Estate and Business Brokers Act,-*^ and 
the Municipal Act.^'^ 

There does not appear to be any consistent policy with 
regard to appeals nor any coherent system under which they 
are provided. Some statutes providing for rights of appeal 
make provision for appeal procedure, and some do not. No 
appropriate procedural provisions are contained in the 
Municipal Act where a right of appeal is given. ^^ Section 247 
reads in part: 

"(4) Subject to The Theatres Act, the granting or refusing 
of a licence to any person to carry on a particular trade, call- 



^'Re Szabo and Metropolitan Toronto Licensing Commission, [1963] 2 O.R. 

426, 427. 
-*Ont. 1966, c. 142, s. 29. 

^''R.S.O. 1960, c. 344, ss. 30-34, as amended bv Ont. 1964, c. 99, s. 12. 
'"'R.S.O. 1960, c. 249, s. 247 (9) (10). 



Chaplc) 76 1129 

ing, business or occupation, or of revoking a licence under 
any ol tlie po^\'crs (onlcrrcd upon a council or a board of 
commissioners of police by this or any other Act, is in its 
discretion, and it is not bound to give any reason for refusing 
(jr revoking a licence and its action is not open to question 
or review by any coint, 

(9) Notwithstanding subsection 4, the decision of a board of 
commissioners of police in refusing or revoking a licence is 
subject to an appeal therefrom to a judge of the Supreme 
Court whose decision is final. 

(10) The practice and procedure on and in relation to an 
appeal made luider subsection 9 shall be the same, as nearly 
as may be, as in the case of an appeal from a decision of the 
Master of the Supreme Court in an action or proceeding in 
the Supreme Court." 

In the first place, this section does not create a right of 
appeal from licensing decisions of municipal councils. There 
should be such a right of appeal. In the second place, the 
procedural provisions are quite inappropriate for an appeal 
from a licensing body. McTague, J., dealt with this matter 
forcefully in Re Silverberg and Board of Commissioners of 
Police for the City of Toronto.^- He said: 

"An analysis of subsec. 7 [now subsection 10] leads to the 
conclusion that it has been assinned that ^vhat takes place 
before the Master is analogous to what takes place before the 
Board of Police Commissioners. The assumption is erroneous. 
Matters before the Master in\'olve litem inter partes. The 
riehts of different litio;ants are submitted to the Master, and, 
on all of the material before him, the Master makes his order. 
The matter then comes before a Judge in Chambers before 
Avhom the appellant places all of the material which w^as 
before the blaster, and the Judge, on a review^ of the same 
material as was before the Master, determines w^hether the 
Master proceeded upon a correct principle or upon a wrong 
one in making his order. The chief thing to be noted is that 
upon the appellant is placed the obligation of serving the 
parties (the Master is not served) and furnishing the appellate 
tribunal ^vith what was before the Master. . . . 

When one considers these fundamental differences between 
the functions of the Master and the functions of the Board 
of Police Commissioners, it becomes apparent that the lot of 
an appellant in getting before a Judge of the Supreme Court 

=-[19371 O.K. 528. 



1130 Safeguards oji Licensing Powers 

the material upon which an appeal can be proceeded with is 
a most difficult one. . . .^^ 

... If a right of appeal in the true sense of the word is in- 
tended, this is a matter to ^vhich consideration should be given, 
as well as the matter of providing the applicant with some 
means by which he can satisfy the usual onus of getting be- 
fore the appellate tribunal material on ^\hich an appeal can 
be decided properly.^^ 

Naturally, one is desirous of helping the appellant here. I 
should very much like to find a ^vay by Avhich he can get 
before me the necesary material on which to decide his 
appeal. The legislation does not give me power to relieve 
him of the duty of getting before the Court all the material 
necessary to decide the motion. . . .^^ 

The appellant here may have a very good case. But to allow 
an appeal, I should have to reach the conclusion that, on the 
evidence and other material before it, the Board of Police 
Commissioners exercised a wiong principle in arriving at the 
decision appealed from. This I am unable to do, because the 
evidence and material which were before the Board were not 
before me, and therefore, I cannot say that the Board was 
wrong. Consequently, I have no alternative but to dismiss 
the motion. "^^ 

In this case the right of appeal was effectively frustrated 
by the absence of proper procedural requirements in the sta- 
tute and the express provision that the Board was not bound 
to give reasons for its decision. Where a Board does not keep 
a record and does not give reasons, the party affected by its 
decision has little to put before an appellate court, particu- 
larly if the members of the Board make no comments during 
the hearing.^" We agree with the comment of the Donough- 
more Committee that "it is contrary to natural justice that the 
silence of the Minister or Ministerial Tribunal should deprive 
him [a disappointed party] of his opporttinity" to contest the 
decision. ^^ 

Appropriate rules governing appeals from licensing tri- 
bunals should be prepared. 

''Hhid., 531. 
^'Ibid., 534. 
^^Ibid., 533. 
"""Ibid., 534. 
^'See Re Ross and Board of Commissioners of Police for the City of Toronto, 

[19531 O.R. 556. 
•*The Donoughmore Report, 80. 



Chapter 76 1131 

An inconsistency in the present law exists. Under 
section 217 (9) of the Municipal Act,-*'' if an appeal is taken, 
the decision of a Suj)rcnic Court judge is final but if the 
decision is attacked by way of an application for judicial 
review, the decision of the Supreme Court judge hearing the 
application is subject to appeal to the Court of Appeal as of 
right. This discrepancy in the law will largely be corrected if 
the recommendations made in this Report that appeals from 
administrati\e tribinials and applications for judicial review 
be heard by the Appellate Division of the High Court of 
Justice for Ontario are adopted. 

Where licensing tribunals are recjuired to adhere to the 
rules of procediux which we liave recommended, a system of 
appeals and appropriate procedure on appeals should be 
established. In such cases the tribunals would be required to 
have a record of their proceedings. Those tribunals to which 
the additional rules governing judicial tribunals are applica- 
ble would be required to base their decisions on the record. 
The system of appeals should provide: 

(1) Decisions of tribunals required to base their decisions 
on the record should be subject to appeal to the Appellate 
Division of the High Court of Justice for Ontario. The 
appeal should lie on all grounds of ultra vires and on all 
questions of law or fact within the authority of the tribunal. 
Such appeals would be based on the record of the proceed- 
ings before the licensing tribunal. The Appellate Division 
should have power on the appeal to make such order as the 
licensing tribunal should have made, or to refer the matter 
back to the licensing tribunal for a re-hearing. Contempt 
proceedings to enforce the order of the Appellate Division 
would not in that case be necessary."*" 

(2) Decisions of licensing tribunals that are not required to 
base their decisions on the record should be subject to 
appeal to an appropriate superior tribunal. (See Chapter 
15). The appellate tribunal should have the same powers 
as the licensing tribunal and power to make such order as 

^"R.S.O. I960, c. 249. 

'"See Re Ross and Board of Commissioners of Police for the City of Toronto, 
[1953] O.R. 947. 



1132 Safeguards on Licensing Powers 

the licensing tribunal might make. In appropriate cases, a 
further appeal to the Appellate Division of the High Court 
of Justice on a matter of law should be provided. 

An Appeal from an Order Suspending a Licence 

The right of appeal given under subsection 9 of section 
247 of the Municipal Act^^ does not apply where the order of 
the licensing tribunal is an order of suspension. Where an 
order of suspension is limited to two weeks, as by section 
247 (8), a right of appeal would not be of much value; but 
where the suspension may be for a longer period, or there are 
repeated suspensions, a right of appeal from decisions of 
licensing tribunals is a necessary safeguard. 

RECOMMENDATIONS 

1. No hearing should be required where a licence is issued 
(as distinct from being denied) in the first instance. 

2. If the issuing officer considers that there are grounds for 
rejection, the licensing tribunal should hold a hearing 
and give the applicant the opportunity to fully present 
his case. 

3. The applicant should be provided with sufficient in- 
formation in order that he may meet the case against him 
and the hearing should comply with the provisions of 
the Statutory Powers Procedure Act which we have 
recommended. 

4. Provision for notice of revocation or stispension proceed- 
ings should be in all licensing laws unless there are very 
exceptional circumstances when public health, safety or 
emergency are involved. 

5. The notice should set out briefly the grounds on which 
it is alleged the licence should be revoked or suspended 
and, Avhere possible, a summary of the evidence that it is 
proposed to submit to the tribunal. 

6. Evidence, if not supplied to the licensee with the notice, 
should be made available for his inspection prior to the 
hearing. 



*^R.S.O. 1960, c. 249. 



Chapter 76 11 -53 

7. Provisions similar to those in the Revised Model Stale 
Administrative Procedure Act and the Federal Adminis- 
trative Procedure Act of the United States, giving a licen- 
see an opportunity to show compliance with all lawful 
requirements and tlius avoid proceedings leading to 
suspension. rc\()calion or annulment of a licence should 
be enacted in Ontario ciilier in the licensing statutes or 
the Statutory Powers Procedure Act. 

8. The onus should not be placed on the licensee to show 
cause why his licence should not be suspended or re- 
\oked. 

9. The Statutory Powers Procedure Act should apply to 
most licensing proceedings to correct procedural deficien- 
cies in the licensing lavv's, particularly with respect to: 

(a) notice of hearing, 

(b) notice of case to be met, 

(c) right to counsel, and 

(d) reasons for decision. 

10. The minimum rules applicable to judicial tribunals 
should be applicable to the proceedings of all licensing 
tribunals except where a licence is granted on an initial 
application and where, for reasons of public safety, health 
or emergency, immediate action is required. 

11. Additional rules governing judicial tribunals should 
apply to licensing tribunals where appropriate. The 
additional rules are: 

(a) Decisions should be based on the record; 

(b) No consultation after the hearing in the absence of 
affected parties; 

(c) The deciding members of the tribunal should be 
present at the hearing; 

(d) All evidence should be recorded. 

12. The Statutory Powers Rules Committee should decide 
the extent to which the additional rules for judicial tri- 
bunals should apply to licensing tribunals. 

13. Our recommendations concerning judicial review apply 
to review of licensing decisions. 



1134 Safeguards on Licrns'nig Poivcrs 

14. In addition, there should be statutory rights of appeal 
from licensing decisions and procedural provisions with 
regard thereto. 

15. Where a licensing tribunal is required to base its deci- 
sion on the record before it, an appeal should lie to the 
Appellate Division of the High Court on all questions of 
ultra vires and on all (questions of fact or law disclosed in 
the record. 

16. On the appeal the court should have power to make the 
order that the licensing tribunal should have made or to 
refer the matter back to the licensing tribunal for a re- 
hearing. 

17. Where a tribunal is not required to base its decision 
solely on the record before it, an appeal should lie to an 
appropriate superior tribunal. 

18. On the appeal the appellate tribunal should have the 
same powers as the licensing tribunal and power to make 
such order as the licensing tribunal might make. 

19. In appropriate cases an appeal should lie by way of stated 
case to the Appellate Division of the High Court of 
Justice on questions of law. 

20. Rules of procedure governing appeals, except procedure 
in the courts, should be made by the Statutory Powers 
Rules Committee. Rules of procedure in the courts 
should be left to the Rules Committee constituted under 
the Judicature Act.^^ 

21. There should be a right of appeal from suspensions of 
licences. 



"R.S.O. 1960. c. 197, s. Ill, as amended by Ont. 1961-62, c. 51, s. 3 enacting 
s. lll(l)(aa); by Ont. 1965, c. 51, s. 5(1) (2) enacting s. lll(l)(f) and s. 
Ill (4a); and by Ont. 1965, c. 51, s. 5(3) amending s. 111(5). 



Section 3 

FAMILY BENEFITS ACT, 1966 



1135 



INTRODUCTION 

In Ontario, as in many other jurisdictions, the period 
since the Second World War has produced a significant in- 
crease in governmental assistance to those in need and to the 
disabled. We are not here concerned with the policies which 
have prompted this development; neither are we concerned 
w^ith the political or humanitarian bases on which certain 
groups or classes ha^'e been selected for assistance -while others 
have not. Our concern is with statutory rights and with the 
exercise of the powder to determine the existence and extent 
of rights in individual cases. 

Several powers exercised under the Family Benefits Act^ 
fall within our Terms of Reference. The powers to determine 
the eligibility of an applicant for assistance, to fix the amount 
to be paid to an eligible applicant, to order and to make inves- 
tigations of applicants for and recipients of assistance, and to 
order the suspension, cancellation or variation of payments, 
are all necessary powers, but they should be exercised accord- 
ing to the standards set out earlier in this Report. The 
existing legislation in Ontario wall be measured against those 
standards with particular reference to the nature and scope 
of the powers, the persons on whom the powers are conferred, 
the procedure by which the powers are to be exercised, and 
the available appeals from the exercise of the powers. We are 
not concerned with the scales of benefits payable under the 
legislation or the adequacy of those scales. 

The Legislation 

Until the Family Benefits Act was passed in 1966, the 
payment of welfare assistance in Ontario was governed by a 
group of statutes, each of which dealt with a different classi- 
fication of needy or disabled persons. The Acts were: the 

^Ont. 1966, c. 54. 

1136 



JiilrodiKtion WM 

Blind Persons' Allowances Act,- the Disabled Persons' Allow- 
ances Act,^ the General Welfare Assistance Act,^ the Mothers' 
Allowances Act,' and the Old Age Assistance Act." 

The new legislation covers all areas covered by these Acts 
and all persons who may be entitled to welfare assistance. It 
is clear that administratively the new scheme is an improve- 
ment over the former. An individual who may cjualify for 
assistance under more than one classification is now able to 
apply, by a single application under a single statute, for all 
the benefits to which he may be entitled. 

The new Act has not only provided an improved admin- 
istrative procedure, but it has provided important and much 
needed substantive changes in the area of welfare assistance, 
e.g., provision for an appeal from a decision of the Director, 
which did not lie under the "predecessor Acts".'^ 

In enacting the Family Benefits Act, the Legislature did 
not repeal the predecessor Acts; rather, the new legislation has 
superseded the old, except in so far as section 14 (4) (5) is 
applicable: 

"14. (4) Where a person is a recipient under a predecessor Act 
\vhen this Act comes into force, he shall, if eligible therefor, 
be paid an allowance under this Act, and his eligibility 
therefor shall be determined in so far as is possible in accord- 
ance ^vith the information contained in the application and 
other documents on file imder the predecessor Act. 

(5) Notwithstanding svibsection 4, a recipient under a pre- 
decessor Act shall not be transferred under subsection 4 if to 
do so would result in a reduction of his allowance at the 
time of his transfer." 

The reason for the continued existence of the predecessor 
Acts is clear and commendable, but it is anomalous to have 
on the statute books conflicting legislation dealing with the 
same subject matter. It would have been preferable to repeal 

''R.S.O. 1960. c. 35. 
='R.S.O. 1960, c. 107. 
^R.S.O. 1960, c. 164. 
'R.S.O. 1960, c. 247. 
"R.S.O. 1960, c. 267. 

'Ont. 1966, c. 54, s. 11. "Predecessor Acts" is the term used in s. 14 of the 
Faniilv Benefits Act, 1966. 



1K58 liUroduction 

ihe predecessor Acts and to include in the new legislation pro- 
vision for departure from the new scale of benefits in cases 
where a recipient under any of the repealed Acts would suffer 
a reduction in his allowance as a result of the change in legis- 
lation. 

A more important difficulty with the solution adopted by 
the Legislature is that it is not clear whether a recipient of 
an allowance who falls within section 14(5) of the new Act 
is to be treated as continuing under the predecessor Act for 
the sole purpose of continuing his allowance at the earlier 
amount, or for all purposes. If, for example, the Director 
were to make a decision to cancel or suspend or vary the 
allowance, would the recipient be able to use the machinery 
provided by section 1 1 of the new Act and request a hearing 
before the board of review, or would he be treated as being 
under the predecessor Act? (No provision for appeal or re- 
view was contained in any of the predecessor Acts.) It is also 
difficult to accept the view that an individual who takes the 
benefits of section 14 (5) of the new Act should have to accept 
the disadvantages of continuing under a predecessor Act. The 
right of appeal which is given by the new Act should be 
available to all recipients of welfare assistance, regardless of 
whether assistance is paid on the new or the old scale. 



CHAPTER 77 



Administrative Scheme of the 
Family Benefits Act 



Where a person applies for assistance under the Family 
Benefits Act^ an application is sent to the Director of the 
Family Benefits Branch of the Department of Public Welfare 
who determines, without a hearing, the applicant's eligibility 
to receive assistance and the amount of assistance to be paid 
and who directs that payment be made. The Director may 
vary, from time to time, the amount of assistance to be paid 
to a recipient and may cancel or suspend benefits. 

The Director is assisted by field workers who may pre- 
pare and submit reports to him and who may assist applicants 
in the preparation of applications; and by a medical advisory 
board which reviews medical evidence submitted in support 
of an application and reports thereon to the Director. 

Any decision, order or directive of the Director is re- 
viewable by a board of revie^v, at the request of the applicant 
or recipient affected. 

Provision is made for regional administrators, but their 
duties and functions are nowhere set out. 

The minister responsible for the administration of the 
Act is the Minister of Public Welfare. 



'Ont. 1966, c. 54. 

1139 



1140 Family Benefits Act: Administrative Scheme 

ALLOWANCES AND BENEFITS 

A distinction is drawn in the Act between an "allow- 
ance" and a "benefit", defined respectively as follows: 

"1. (a) 'allowance' means an allowance provided on the basis 
of need under this Act and the regulations. 
(d) 'benefit' means a benefit provided on the basis of need 
under this Act and the regulations, and includes an allow- 
ance." 

In view of the last four words of section 1 (d), it might 
appear that one term, "benefit", would have been sufficient to 
cover both varieties of assistance. However, it is clear from 
section 7(1) that the distinction has significance: 

"7. (1) An allowance shall and other benefits may be pro- 
vided in accordance ^vith the regulations to any person in 
need who is resident in Ontario. . . ." [Italics added.] 

Once eligibility under the Act and regulations has been 
determined, an allowance is a matter of entitlement, but the 
granting of a benefit is a matter for the discretion of the 
Director. 

This raises a number of questions, one of which we con- 
sider at this stage: What is the substance of the allowance/ 
benefit distinction? Or what, in concrete, practical terms, is a 
benefit? The difference is not made clear by the Act. The 
Act is worded in such a way as to obscure the distinction. 

The Lieutenant Governor in Council is empowered to 
make regulations "designating benefits or classes of benefits",^ 
but no section of the regulations^ clearly does so. Sections 17, 
18 and 19 of the regulations come closest, providing respec- 
tively that "a beneficiary ... is entitled without cost to receive 
medical services \n accordance with The Medical Services In- 
surance Act, 1965, and the regulations thereunder", that "a 
beneficiary is entitled without cost to receive hospital sendees 
in accordance with The Hospital Services Commission Act and 
the regulations thereunder" and that "a beneficiary . , . maybe 
entitled to dental services under any agreement in writing in 
force from time to time between the Crown in right of Ontario 
and the Royal College of Dental Surgeons of Ontario". It 

-Ibid., s. 13(j). 
=•0. Reg. 102/67. 



Clinljtcr 77 1111 

appears, therefore, that benefits, strictly so-called, arc free 
medical, hospital and dental ser\ices. Form 2 in the regula- 
tions, "Application lor a Ikiielit", makes it clear that benefits 
comprise free medical and hospital services. 

The substance of the distinction between allowances and 
benefits thus e\entually becomes clear. Since an allowance is 
something that a person is entitled to as a legal right, and a 
benefit is something that may be granted in the discretion 
of the Director, it is important that the different forms of 
assistance for which an applicant may be eligible be clearly 
set out and defined, and preferably in the Act itself. From a 
discussion with departmental officials, it would appear that 
this confusion arises out of an agreement between the govern- 
ment and the Royal College of Dental Surgeons with respect 
to professional services rendered to family groups. Since this 
is the case, the confusion may not have much practical im- 
portance. Nevertheless, "benefit" is not clearly defined in 
the Act and the obscurity is deepened by including "allow- 
ance" within the definition of "benefit". 

The overlapping definition results in "benefit" being 
used ambiguously in many sections of the Act and regula- 
tions. In a statute dealins^ with assistance to disabled and 
needy members of society, clarity is essential. We are not 
concerned with the minutiae of drafting in the statute and 
regulations, but we are concerned where language used may 
obsctne the rights of the indi\ idual and his understanding of 
them. Although, in practice, these differences may now have 
little significance, the legal rights should be clearly defined. 

NATURE AND SCOPE OF POWERS CONFERRED 

Broadly speaking, powers of investigation are conferred 
on field w^orkers and powers of decision on the Director and 
the Board of Review. 

Powers of Investigation 

By section 13 (r) of the Act, the Lieutenant Governor in 
Council has power to make regulations, 

". . . providing for the making of investigations for the pur- 
poses of this Act of applicants for or recipients or beneficiaries 
of benefits". 



1142 Family Benefits Acl: Adniinistrative Scheme 

This power has been exercised primarily in section 14(3) ot 
the regulations/ The main powers of investigation are: 

"14. (3) A field worker shall, 

(a) at the request of the Director, 

(i) verify any statements in an application for an allow- 
ance, 

(ii) where any child of an applicant or recipient is receiv- 
ing or may receive a benefit, revie^v the circumstances 
under which the child is being cared for, and 

(iii) review the capacity of the applicant or recipient to 
manage an allowance; 

(b) at such times as the Director directs, prepare and sub- 
mit a report on any circumstances of an applicant or recipient 
that might affect his eligibility for the amoimt of or con- 
tinuance of a benefit or any other matter relating thereto; . . ," 

These powers clearly fall within the first of the two main 
types of powers of investigation discussed in Chapter 28,^ 
i.e., an investigation where the investigating body or person 
acts only on the direction of a superior governmental body. 
No field worker (a field worker is defined, by section 1 (h) of 
the Act as "a person employed as such by the Department of 
Public Welfare or any other employee of the Department 
whom the Minister designates as such") has the power to act 
on his own motion in conducting an investigation. But, no 
limit is placed on the power of the Director to set an investi- 
gation in motion; no conditions precedent are set out. In 
Chapter 28, the following recommendations were made: 

"2. W'here powers of in\'estigation are conferred, these should 
be subject to conditions precedent which must be satisfied 
before an investigation can be validly commenced. 

5. If it is considered that a condition precedent in objective 
form would seriously frustrate the implementation of the 
policy of the statute, the person who is to form the unreview- 
able opinion, i.e., who is to be 'satisfied', should be in a 
responsible position in the government hierarchy."® 

*0. Reg. 102/67, s. 14(3). 
^See pp. 388 ff. supra. 
*See p. 390 supra. 



Chapter 77 1143 

These poweis are clearly not in conformity with these 
recommendations; the Director, who is not a politically re- 
sponsible oflicial witliin tlic meaning ol the reconnnendations, 
may set an investigation in motion without first satisfying any 
conditions precedent, whether subjective or objective. The 
(juestion is whether, in the light of the policy of the Act, any 
limitations on the power should be imposed. 

A distinction must be drawn between the power to 
order an investigation to verify statements made in an appli- 
cation for assistance, and other powers of investigation. No 
limitations should be placed on the Director's power of in- 
vestigation to determine the eligibility of an applicant. He 
should be free to check the veracity of any material state- 
ments made in an application for assistance. Restrictive regu- 
lations on the power would tend to delay assistance. It is 
different with respect to other powers set out in section 14 (3) 
of the regulations. It is not unreasonable to require that before 
ordering an investigation to determine whether a recipient of 
assistance continues to be qualified for assistance, the Director 
should have reasonable grounds for believing that circum- 
stances exist which warrant an investigation bearing on the 
continued payment of assistance. Those members of the pub- 
lic who are exposed to these powers of investigation should 
have their right to be free from unwarranted invasions of 
their privacy clearly established in the Act. 

The scope of the powers conferred by section 14(3) of 
the regulations is satisfactorily defined. In Chapter 31 powers 
of entry to premises are discussed as incidental to powers of 
investigation. Section 14 (3) of the regulations confers no ex- 
press power of entry, but it is clear that the power is neces- 
sarily incidental where the circumstances under which a child 
is being cared for are involved.^ The principles recommended 
in Chapter 3 F as to entry are applicable here. 

Under section 16(3) of the regulations, the Medical Ad- 
visory Board is required to investigate the eligibility of an 
applicant or recipient who makes a claim based on physical 
impairment, and in so doing the Board is empowered to obtain 
any evidence (in addition to the medical evidence submitted 

'O. Reg. 102/67, s. 14(3)(a)(ii). 
*See pp. 410 ff. supra. 



1144 Family Benefits Act: Administrative Scheme 

by the applicant) which is necessary to make a complete report 
to the Director. No conditions precedent are set out (unless 
one is implied by the requirement that such additional evi- 
dence be "necessary to make a complete report"). We do not 
think that there should be any. 

By section 8(1) of the Act, it is provided: 
"8. (1) In cases presenting special circumstances and in which 
investigation shoAvs the advisability of an allowance being 
provided to an applicant Avho is not eligible for an allo^vance, 
the Lieutenant Governor in Council may direct that an 
allowance be provided to the applicant." 

The purpose of the subsection is clear and commend- 
able; it is proper that there should be a discretionary power 
to grant assistance to an indi\'idual who may not come within 
the prescribed categories, but the machinery of investigation 
here is unclear. At whose instance is the investigation con- 
ducted? Into what matters is the investigation to go, other 
than those which may have been set out in an application 
under the Act? By whom is the investigation to be conducted? 
Is the presenting of "special circumstances" a condition pre- 
cedent to the ordering of an investigation, or to the exercise 
of the discretion to grant an extraordinary allowance? If the 
former, who is to decide when special circumstances exist and 
what, if any, criteria are to be adopted? It is recognized that 
in dealing with the kind of situation which section 8(1) is de- 
signed to cover, a degree of vagueness may be inevitable 
and perhaps even desirable. However, matters such as those 
"^ve have mentioned, pertaining to the investigatory powers, 
should be resoh'ed with as much precision as possible. 

Powers of Decision 

With the exception of the discretionary power which is 
conferred on the Lieutenant Governor in Council to grant 
assistance to an applicant who is not strictly eligible, all deci- 
sions at first instance under the Act are made by the Director. 
These powers of decision may conveniently be dealt with 
under three heads: 

(1) Eligibility for and amount of assistance; 

(2) Variation, suspension and cancellation of assistance; 

(3) Miscellaneous powers of decision. 



Chaplrr77 1145 

Eligibility for and Amount of Assistance 
By section 3 of the Act, 
"3.(1) The Director shall, 

(a) receive applications lor benefits; and 

(b) determine the eligibility of each applicant to receive 
a benefit and, where the applicant is eligible, determine 
the amount of the allowance or other benefit. . . ." 

Since the grounds of eligibility and scales of payments are 
fully set out in the Act and regulations, these po\vers are 
clearly judicial in nature. Certainly with respect to the grant- 
ing of and the amount of an allowance, no element of dis- 
cretion or of policy determination is present. The decisions 
involve no more than an examination of the facts to determine 
whether an applicant satisfies the prescribed conditions. 

As we have pointed out, the granting of a benefit, as 
distinct from an allowance, would appear to be a matter of 
discretion. This element of discretion has, however, largely 
been eliminated by the regulations. The recipient of a pen- 
sion under the Old Age Pensions Act (Canada)^ who meets 
other detailed criteria, "may be provided without cost" with 
medical and hospital services. ^*^ Here the discretionary element 
is apparently present, but by sections 17 and 18 of the regula- 
tions it is provided that, in addition to those persons eligible 
under section 2(1) of the regulations, a beneficiary is entitled 
^vithout cost to receive medical and hospital services. In view 
of this confusion between discretion and entitlement, it is 
difficult to determine exactly what is in^'olved in the power to 
decide that an applicant should recei\'e a benefit. As we have 
said, in practice these regulations appear to be interpreted to 
reduce the element of discretion to those cases coming within 
the agreement with the Royal College of Dental Surgeons with 
respect to dental ser\'ices rendered to family groups. What is 
done in practice is to attempt to apply the terms of the agree- 
ment to each particular case. We think, however, that there 
is no apparent reason why the grounds for eligibility for a 
benefit should not be fully set out so that the benefit could 
always be a matter of entitlement. It is important that the 

"R.S.C. 1952, c. 199. 
'"O. Reg. 102/67, s. 2. 



1146 Family Benefits Act: Administrative Scheme 

Director's power should be clearly judicial, as in the case of 
allowances, so that his decisions would be subject to judicial 
review. 

Variation, Suspension and Cancellation of Assistance 

Under section 3 (1) (b) of the Act, the Director is given 
power to vary, from time to time, the amount of assistance to 
be paid to a recipient. This power must clearly be read in 
connection with section 8 of the regulations (setting out the 
basis on which allowances are computed) and with the de- 
tailed scales of payments in the regulations. Again, this is a 
judicial power, involving a consideration of a recipient's cir- 
cumstances to see if any change in them warrants a variation 
in the amount of his allowance. 

Section 7 (8) of the Act provides: 

"7. (3) Any benefit may be suspended or cancelled if the reci- 
pient fails to comply with any requirement of this Act or of 
the regulations."^^ 

The cancellation or suspension of assistance to a disabled 
or needy person is a serious matter indeed. The grounds upon 
which such action can be taken should be set out with clarity. 
If criteria for eligiblity are put on one side as raising wholly 
different considerations from those raised by section 7 (3), 
and if those matters are left out of account for which, by the 
regulations, the power of suspension or cancellation has been 
expressly provided, what are the "requirements" which must 
be complied with? They appear to be few in number. Section 
5 provides that an allowance is not subject to alienation or 
transfer by the recipient; this, no doubt, implies a requirement 
that a recipient not alienate or transfer his allowance. Section 
1 2 provides in part: 

"12. (1) No person shall knowingly obtain or receive a bene- 
fit that he is not entitled to obtain or receive under this Act 
and the regulations. 
(2) No person shall knowingly aid or abet another person 

^^In this section there is the confusion mentioned earher, resuhing from the 
overlapping definitions of "allowance" and "benefit". Clearly, "benefit" is 
used here as including "allowance", but "recipient", used to describe the 
person in receipt of the benefit, is defined by section l(k) of the Act as "a 
person to whom an alloivance is provided". A person who receives a benefit 
is a beneficiary (s. 1(c)). 



Chalitn 77 1147 

to obtain or rctcive a benefit that such other person is not 
entitled to obtain or receive luider this Act and the regu- 
lations." 

Section 12(3) provides penal sanctions (fine and imprison- 
ment) for contraventions oi section 12 (1) (2), and it may there- 
fore be questioned whether such contraventions should also 
be punished by suspension or cancellation of any assistance 
for which the culprit would otherwise be eligible. Even assum- 
ing, however, that such additional sanction is appropriate, 
these are the only "requirements" specifically set out in the 
Act giving power of suspension or cancellation under section 
7 (3). No similar "requirement" is found in the regulations, 
unless one includes such things as the direction that applica- 
tions should be made in the prescribed forms, etc.^^ 

Under section 1 3 (n) of the Act the Lieutenant Governor 
in Council has power to make regulations "providing for the 
suspension, cancellation, reinstatement and transfer of allow- 
ances and other benefits". The power has been exercised. 
Section 12 of the regulations provides: 

"12. (1) The Director . . . may cancel or suspend a benefit 
where, 

(a) the . . . recipient or spouse of the . . . recipient is un- 
willing to accept employment, and, in the opinion of the 
Director, suitable employment is available; or 

(b) the . . . recipient is absent from Ontario. 

(2) The Director, having regard to a beneficiary's budgetary 
requirements and his income, may . . . suspend an allowance 
where a beneficiary is, 

(a) a patient in a general hospital or a convalescent hospi- 
tal; or 

(b) serving a term of imprisonment. 

(3) The Director may recover from a recipient any sum 
improperly paid under this or any predecessor Act as a result 
of non-disclosure of facts, misrepresentation or any other 
cause by reducing or suspending the allowance or by such 
means as the Director considers appropriate." 

It is clear that the powers conferred by this section are 
judicial; given the existence of the prescribed facts, the Direc- 
tor may act. The major problems raised by the section involve 

"O. Reg. 102/67, s. 13(1)(4). 



1148 Family Benefits Act: Administrative Scheme 

ihe procedure to be followed, ^vhich will be discussed later. 
There is one point, ho^vever, which should be raised at this 
stage: in section 12(1) (a) of the regulations, the availability of 
suitable employment is a matter for the opinion of the Direc- 
tor. Here again, there should be an indication of what factors 
are to be considered as relevant. No doubt consideration 
should be given, for example, to the educational background 
and training of the individual concerned, his physical con- 
dition and his domestic situation. It is not suggested that 
arbitrary decisions are being or will be made under section 
12(l)(a), but the decision to cancel or suspend welfare pay- 
ments is a serious one which should only be made after a full 
consideration of all the relevant factors. In this respect the 
language of section 12(2) is to be preferred since it makes clear 
that the allowance of a recipient who is hospitalized or im- 
prisoned may only be suspended after a consideration of his 
"budgetary requirements and income". The scope of the 
power to alter assistance should, wherever possible, be sharply 
delineated by a clear statement of the factors to be considered 
in the exercise of the power. 

Miscellaneous Powers of Decision 
By section 2 (4) of the regulations: 

"2. (4) A child who in the opinion of the Director is impaired 
as a direct result of the natural mother having used the drug 
known as thalidomide shall be deemed to be a person in 
need and shall be eligible for financial aid in such amounts 
as the Director may determine." 

Two points should be made: first, that the cause of the 
impairment is a matter upon which the Director is to form 
an opinion. But the question may be one about which the 
Director may not, in all cases, be qualified to form an opinion. 
Clearly, this is a matter upon which the Director should have 
the assistance of a report from the medical advisory board, 
but section 16 of the regulations, dealing with the composi- 
tion and functions of the medical advisory board, does not 
list this as one of the areas in ^vhich the board is to act. Such 
decisions should be required to be made on the basis of the 
best advice available as to the existence of the prescribed fac- 
tual situation and should not be left solely to the Director's 



Chapter 77 1149 

opinion. Second, there is no indication of the scale upon 
^vhich the amount of "financial aid" is to be calculated. Here 
it is the child rather than his parents who may be eligible for 
assistance. If the amount to be paid is solely within the discre- 
tion of the Director, this should be made clear. If, on the 
other hand, the amount is not purely discretionary, there 
should be a clear indication of the factors to be considered in 
calculating it. 

By section 5 of the regulations, the eligibility of an 
applicant for, or recipient of, an allowance may be affected: 

"5. (1) Where an applicant or recipient ... or the spouse or a 
dependant child of the applicant or recipient has an interest 
or estate in real property, other than real property used by 
the applicant or recipient as his own dwelling place, the 
applicant or recipient ... is not eligible for an allowance 
unless such arrangement or disposition of the estate or interest 
is made as is deemed to be advantageous for the care of the 
applicant's or recipient's family." 

Section 5 (2) is to the same effect with respect to an interest 
or estate in real property held by a foster child. The purpose 
of section 5 cannot be criticized, but the language should be 
clarified. Who is it that must "deem" the arransrement or 
disposition to be "advantageous"? It is reasonable to assume 
that it is intended that the decision should be the Director's, 
since it is he who, under section 3(l)(b) of the Act, is to 
determine eligibility. Again, no criteria are set out which are 
to be applied in making the decision. 

Further examples of matters upon which the Director is 
to form an opinion, without any indication of the factors to 
be considered relevant, are found in sections 5(1)(2), 6, 
9(l)(b)(v), and 9(8)(b) of the regulations. It is stressed that 
when power is given to determine matters such as eligibility 
for and amounts of assistance, and suspension or cancellation 
of assistance, the grounds upon which the decisions are to be 
made should be set out with as much precision as possible. 



CHAPTER 78 

Structure and Procedures 
of Tribunals Under the 
Family Benefits Act 

STRUCTURE AND ORGANIZATION OF TRIBUNALS 

X OWERS of decision are conferred by the statute on 

(1) The Director, and 

(2) The Board of Review. 

The Director 

The Director makes all decisions on questions of eligi- 
bility and the amount of allowances and benefits. He has 
power to suspend, cancel or vary them and to decide certain 
miscellaneous matters. He initiates and directs investigations 
leading up to decisions. 

In 1966, the last year in which allowances were paid 
under the predecessor Acts, approximately 62,000 persons 
were receiving assistance. It is apparent that the Director 
cannot personally put his mind to the making of all decisions 
■\vith respect to the granting or termination of all allowances 
and benefits. In practice most of the decisions must be made 
by members of his office staff. 

The provisions of the Interpretation Act^ are relied on 
as authority for the delegation of the powers of the Director. 

"27. (m) words directing or empowering a public officer or 
functionary to do an act or thing, or otherwise applying to 



^R.S.O. 1960, c. 191, s. 27 (m)(o). 

1150 



Chapter 78 1151 

him by his name of office, include his successors in office and 
his lawful deputy; 

(o) words authorizing the appointment of a public officer or 
functionary or the appointment of a person to administer an 
Act include the power of appointing a deputy to perform and 
have all the poAvcrs and authority of such public ofiicer or 
functionary or person to be exercised in su( h manner and 
upon such occasions as are specified in the instrument appoint- 
ing him or such limited powers and authority as the instru- 
ment prescribes." 

We think that it is an unjustified extension of these 
general pro\'isions to treat them as conferring power on the 
Director to authorize his stafT to grant or refuse allowances or 
benefits. The power to make such important decisions should 
not be left to implication. 

Considerations of accessibility, expedition, informality 
and economy justify a departure from the principle that judi- 
cial powers such as those conferred on the Director should not 
be exercised by persons appointed by a minister, or combined 
'ivith investigatory powers, as long as there is provision for 
review by an independent body.- 

Other than proper provision for the delegation of the 
powders of the Director to which we have just referred, 
no change should be made in the mode of making initial 
decisions. 

The Board of Review 

Section 1 1 of the Act provides for the constitution and 
powers of the Board of Review: 

"11. (1) The Minister shall appoint a board of review, con- 
sisting of such number of members as are prescribed by the 
resfulations, and shall desionate one of the members as chair- 
man. 

(2) Any applicant or recipient may request a hearing and 
review by the board of review of a decision, order or direc- 
tive of the Director affecting the applicant or recipient, as 
the case may be. 

(3) Where a hearing and review are requested, the board of 
review shall hold a hearing and may by its order direct the 



"See pp. 124 ff. supra. 



1152 Family Benefits Act: Powers 

Director to make such decision as the Director is authorized 
to make under this Act and as the board of review deems 
proper, and thereupon the Director shall act accordingly. 

(4) The order of the board of review is final, but a further 
application for a benefit may be made by the applicant upon 
new or other evidence or where it is clear that material cir- 
cumstances have changed." 

By the regulations the number of members of the Board 
of Review is fixed at three, with two members constituting a 
quorum.^ 

As of Januai7 1, 1968, a Board of Review had not been 
appointed. Since April 1, 1967, the date on which the Act 
came into force, applications for review^ have apparently been 
handled by the Director and his staff on a basis that has no 
legal foundation. The right of appeal to a Board of Review is 
frustrated until a Board of Review is appointed. 

The members of the Board of Review are appointed by 
the Minister and have no tenure of office. This is inconsistent 
with the principles set out in Chapter 10 of this Report. The 
members of any board of review such as this should be 
appointed by the Lieutenant Governor in Council, and should 
be given a tenure of office of sufficient duration to give them 
independence wdth respect to any particular matter for deci- 
sion coming before them. 

For reasons that we shall discuss later when dealing with 
procedure, we cannot see how a Board of Review constituted 
under the present statute can function according to sound 
legal principles and with adequate procedural safeguards to 
the rights of the individual. 

PROCEDURE 

Decisions of the Director 

Since the decisions of the Director fall tnider two heads- 
original decisions concerning the eligibility of the applicant, 
and decisions to cancel, suspend or vary assistance— the pro- 
cedtiral requirements are different. 

'O. Reg. 102/67, s. 15(1). 



Chapter 78 1153 



Original Decisions Concerning the Eligibility 
OF Applicants 

In arriving at ihc original decision, the purpose of the 
statute— to meet emergency— must prevail. In the making ol 
a decision to grant assistance in the first instance, the Director 
might be impeded in arriving at the decision by procedural 
requirements. He should be iree to ascertain "need" quickly 
and then apply the defined grounds of eligibility. The scales of 
payment are clearly set out for allowances, and if an applicant 
is eligible he is entitled to them. 

Where assistance is not granted, the procedural safe- 
guards we have recommended in Chapter 14^ should apply. 
There should be a hearing. 

Decision to Cancel, Suspend or Vary Assistance 

A decision to cancel or suspend assistance is different 
from the original decision. The Director "may" decide to 
take such action.^ Every recipient of assistance is in danger 
of being deprived by the Director's decision of the the allow- 
ance or benefits enjoyed under the Act. In a very real sense a 
case may be made against him. He should, therefore, be given 
a proper opportunity to meet that case and to adduce any evi- 
dence which might influence the Director in the decision. 
The power to cancel welfare assistance is serious and should 
not be exercised without meticulous attention to those pro- 
cedural safeguards whose adoption we have recommended, 
including, particularly, that he should be afforded a hearing.® 

The Nature of the Hearing 

It is difficuk to determine the kind of hearing that will 
adequately safeguard the rights of an applicant without sacri- 
ficing expedition, informality and economy. 

Where it appears that the initial application will not be 
granted in whole or in part the applicant should be notified 
of the intended decision. Reasons should be given. Before a 
final decision is made the applicant should have an oppor- 
tunity to make written or oral submissions. 

'See pp. 206 ff. supra. 
'O. Reg. 102/67, s. 2. 
"Chapter 14, p. 206 supra. 



1154 Family Benefits Act: Powers 

The advantages of proceeding by way of written submis- 
sions are that informality, expedition and economy are not 
sacrificed. The advantages of oral submissions are many, in- 
cluding benefits that come from personal contact. These 
submissions should be made to regional administrators. 

The difficulties that arise with respect to initial applica- 
tions also arise with respect to the cancellation, suspension or 
variation of an allow^ance or benefit. We have concluded that 
notice of intended action should be given to a person receiv- 
ing an allowance or benefit before any alteration is made in it. 
The recipient should have the same rights to make submis- 
sions as are accorded to an applicant in the first instance. 

The Board of Review 

It is clear at least that any applicant for or recipient of 
assistance may, as of right, have a hearing before the Board 
for the Review of any decision, order or directive of the Direc- 
tor, The procedure followed at such hearing should conform 
to our recommendations as to procedure for judicial tribunals 
set out in Chapter 14. The only provision for procedure in 
the regulations is that a request for review shall be mailed to 
the Chairman of the Board of Review.'^ 

No provision is made in the Act or in the regulations for 
the place at which hearings are to be held. It is therefore 
assumed that the Board will sit only in Toronto. The fact 
that an individual is faced with a journey to Toronto, with 
its consequent costs in time, trouble and money, may deter 
him from seeking a review of the Director's decision. This is 
wrong. 

The Board should be recjuired to take speedy action, in 
that the delay between a request for a hearing and the hearing 
should be minimal. The hearing should be convenient and 
inexpensive for the individual concerned. There should, 
ideally, be a single board hearing all appeals from the Direc- 
tor so as to promote uniformity and consistency of adminis- 
tration of the Act and regulations. We do not think it would 
be possible to devise a scheme for one board of review with 
all these characteristics. If the present scheme of the Act is 

^O. Reg. 102/67, s. 15(2). 



Chapter 78 1155 

followed, the right of appeal will be largely lost because the 
Board of Re\'icw will be incapable of handling the volume of 
cases. 

Officials of the Department of Welfare have informed us 
that recjuests for reconsideration of decisions number hun- 
dreds weekly. 

An Itinerant Board of Review 

An itinerant Board of Review does not appear to be a 
practical solution. It would not be practical for a single board 
to travel throughout the whole Province hearing appeals 
promptly wherever it was required. Delays in hearing indi- 
vidual requests where prompt action is essential would frus- 
trate the purposes of the Act. The only virtue that an itinerant 
Board of Review would have would be a hearing in the locality 
in w^hich the complaint arises, and the provision of a single 
tribunal for hearing all complaints. 

Regional Boards of Review 

In our discussion with the Departmental officials, it was 
indicated that it was the intention of the Department to set 
up regional boards of review with a central Board of Review 
in Toronto. This has not been done by the regulations, but 
we find it difficult to see how it could be done within the 
present legislation. The Minister is given the power to appoint 
a Board of Review consisting of such number of members as 
is prescribed by the regulations. It may be that it was the 
intention that a very large Board of Review would be set up 
that would sit in divisions, but the provisions of the Inter- 
pretation Act would appear to prevent such a scheme from 
operating under the present Act: 

"27. (e) Where an act or thing is required to be done by more 
than two persons a inajority of them inay do it."^ 

If regional boards of review are to be set up, they should 
be independent of political control. 

Whatever the composition of the review tribunal may be, 
the procedure at hearings should conform to the standards set 

"Interpretation Act, R.S.O. I960, c. 191, s. 27(e). 



1156 Family Benefits Act: Powers 

out in Chapter 14. The Rules Committee recommended in 
that chapter should formulate rules governing applications for 
review, 

APPEALS TO TFIE COURTS 

In providing for an appeal to a Board of Review from 
decisions, orders and directives of the Director, the Act has 
provided: 

"11. (4) The order of the board of review is final. . . ." 

Earlier in this Report" we endorsed this principle: 

"An appeal from a judicial tribunal should be taken to the 
ordinary courts unless exceptional circumstances render this 
impractical." 

This principle applies to decisions of the Board of 
Review. When exercising its powers under the Act and regu- 
lations, the question arises: Are the circumstances surround- 
ing family benefits so exceptional that one who has been 
denied a right of assistance by the Board of Review should 
not be allowed to have the matter finally determined in the 
courts? Rights of appeal to the courts are now allowed in 
much less important cases. Whether a widow or orphaned 
children should be allowed the benefits provided under the 
Act, not only involves vei*y substantial sums of money, but 
very real social consequences. Any argument based on the 
contention that there would be a plethora of appeals is un- 
sound and self-defeating. If the Act is well administered, there 
should be very few appeals. However, we think the right of 
appeal should be restricted to questions of law alone and 
should be to the Appellate Division of the High Court of 
Justice, recommended in this Report. 

RECOMMENDATIONS 

1 . The terms "allowances" and "benefits" used in the Family 
Benefits Act should be clearly defined and the legal rights 
thereto clarified in the Act. 

2. The Act should provide that before the Director should 
have power to order an investigation to determine 



"Chapter 15, p. 234 supra. 



Chapter 78 1157 

whether the recipient of assistance continues to be quali- 
fied for assistance, he should have reasonable grounds for 
believing that circumstances exist which warrant an inves- 
tigation bearing on the continued payment of assistance. 

3. Section 8(1) of the Act providing for payment of an 
allowance in special circumstances should be clarified by 
providing a procedure by which it may become operative. 

4. The Director should be given statutory power to delegate 
his powers of decision. 

5. A decision to refuse assistance should not be made with- 
out giving the applicant an opportunity to be heard. 

6. A decision to cancel or suspend assistance should not be 
made without first informing the recipient of the alleged 
grounds for cancellation or suspension and giving him an 
opportunity to be heard. 

7. Provision should be made for both written and oral sub- 
missions. 

8. On an initial application the Director should have power 
to make an interim order for payment of assistance pend- 
ing a final decision. 

9. Proper boards of review should be appointed by the Lieu- 
tenant Governor in Council with tenure of office. 

10. Provision should be made for local or regional boards of 
review. 

1 1 . There should be a right of appeal from the decision of 
the boards of review on questions of law alone to the 
Appellate Division of the High Court of Justice for 
Ontario. 



Section 4 



SELF-GOVERNING PROFESSIONS 
AND OCCUPATIONS 



1159 



INTRODUCTION 

In Ontario there are twenty-two self-governing professions 
and occupations which have been given statutory power to 
license, govern and control those persons engaged in them. 

The power-conferring statutes are: the Architects Act,^ 
the Chiropody Act,^ the Dentistry Act,^ the Dental Techni- 
cians Act,"* the Drugless Practitioners Act (covering physiother- 
apists, chiropractors, masseurs, naturopaths and osteopaths),^ 
the Embalmers and Funeral Directors Act,® the Law Society 
Act,' the Medical Act,^ the Nurses Act,^ the Ophthalmic Dis- 
pensers Act,^^ the Optometry Act, ^^ the Pharmacy Act,^^ the 
Professional Engineers Act,^^ the Psychologists Registration 
Act,^^ the Public Accountancy Act,^' the Radiological Tech- 
nicians Act,^^ the Surveyors Act,^^ and the Veterinarians Act.^^ 

The callings covered by these statutes include those which 
have been known traditionally as professions, requiring many 
years of education and training before one is qualified to 
practise, as well as occupations where the educational stand- 
ards are not high, but the emphasis is on technical skill. 

^R.S.O. 1960, c. 20. 

^R.S.O. 1960, c. 57. 

'R.S.O. 1960, c. 91. 

*R.S.O. 1960, c. 90. 

'R.S.O. 1960, c. 114. 

"R.S.O. 1960, c. 120. 

'R.S.O. 1960, c. 207 (including the Barristers Act. R.S.O. 1960, c. 30, and the 
Solicitors Act, R.S.O. 1960, c. 378). 

'R.S.O. 1960, c. 234. 

«Ont. 1961-62, c. 90. 
^"Ont. 1960-61, c. 72. 
"Ont. 1961-62, c. 101. 
"R.S.O. 1960, c. 295. 
"R.S.O. 1960, c. 309. 
^*R.S.O. 1960, c. 316. 
^'R.S.O. I960, c. 317. 
^"Ont. 1962-63, c. 122. 
"R.S.O. 1960, c. 389. 
"R.S.O. 1960, c. 416. 

1160 



Introduction 1161 

Those callings which are customarily tlioughl of as pro- 
fessions cannot be precisely defined. They all have some 
features in common, but all these features will not be found 
in any single profession, and many of them are not found in 
occupations which are not normally classed as professions. 
These are the significant characteristics: the calling is one 
which depends for its effective pursuit on confidence of two 
kinds— the personal confidence of the patient or client in the 
technical competence of the practitioner, and the confidence 
of the public at large in the integrity and ethical conduct of 
the profession as a wliole; it requires a high standard of tech- 
nical skill and achievement; it provides a ser\'ice to members 
of the public; practitioners are usually employed under a 
contract for service rather than under a contract of service, 
i.e., they operate as independent practitioners and are not 
subject to detailed control by those whom they serve; the 
calling is one in which more than mere technical competence 
is required for the service of patients or clients and for the 
protection of the public, i.e., standards of ethical conduct must 
prevail; confidence is reposed in the practitioner, requiring 
that he does not exploit the intimate details of his patient's 
or client's life and affairs which are divulged to him. No doubt 
many other characteristics of professions could be added. 

It is relevant first to consider why the powers of self-gov- 
ernment are conferred on the enumerated bodies, and second, 
to consider whether the powers of self-government are neces- 
sary or desirable. 



CHAPTER 79 

The Power of Self-Government 



Ihe granting of self-government is a delegation of legis- 
lative and judicial functions and can only be justified as a 
safeguard to the public interest. The power is not confen-ed 
to give or reinforce a professional or occupational status. The 
relevant question is not, "do the practitioners of this occu- 
pation desire the power of self-government?", but "is self- 
government necessary for the protection of the public?" No 
right of self-government should be claimed merely because 
the term "profession" has been attached to the occupation. 
The power of self-government should not be extended beyond 
the present limitations, unless it is clearly established that 
the public interest demands it. 

In a statement published in 1966 of the functions, pro- 
cedure and disciplinary jurisdiction of the General Medical 
Council of England, the purpose of the power of self-govern- 
ment is well stated in words that should apply to every self- 
governing body: "The general duty of the Council is to 
protect the public, in particular by supervising and improving 
medical education. . . . The Council is not an association or 
union for protecting professional interests. ..." 

It is not easy to see why powers of self-government, with 
all the possible monopolistic attributes, have been extended 
to some of the bodies covered by the enumerated statutes.^ 
This Commission is not so much concerned with whether all 
those callings and occupations ought to have delegated legis- 
lative and judicial powers, as it is with the question as to what 

^See p. 1160 supra. 

1162 



Chapter 79 1163 

sort of delegated legislative and judicial powers the respective 
bodies should enjoy and what controls and safeguards should 
be imposed on the exercise of those powers. 

The power of self-government is essentially the power to 
decide who shall be permitted to earn his living by the pur- 
suit of a particular calling. As pointed out by Professor 
Gellhorn, the basic civil right involved in professional self- 
government is "the right to make a living"^ in the calling of 
one's choice. Since the power must be exercised only for the 
protection of the public, the real question is by whom and in 
what manner should it be exercised. It can be strongly argued, 
and to some extent it has been recognized in Ontario, that 
a poucr which so circumscribes the freedom of the individual 
to earn his livelihood by any lawful means, should not be 
exercised except under government control. 

The right to control admission to a profession or occupa- 
tion, and to issue licences authorizing persons to engage in 
the practice of a profession or occupation, confers a power to 
control the number who may be admitted to it, as well as to 
ensure competence of its members. The power to set educa- 
tional standards and prescribe training includes the power to 
exclude persons even though they may qualify to meet reason- 
able standards. Excessively high standards may produce spe- 
cialists but leave a vacuum with respect to areas of a profession 
where the services of a specialist are not required. 

These facts give foundation to the argument that the 
government of professional bodies is a matter for the State. 
This principle has been accepted in the United States, \'v'here 
the usual practice has been to establish professional boards 
of governors under the control of the state government. These 
bodies have traditionally been composed of an admixture of 
government appointees and representatives of the professions 
concerned. In some cases a situation approaching that pre- 
vailing in Canada has been reached where the governing body 
of a profession, although retaining its continued subjection 
to state control, has over a period of time become entirely 
composed of representatives of the profession.^ 

"Walter Gellhorn, Individual Freedom and Governmental Restraints. 
^Ibid., 115-16. 



1164 The Power of Self -Government 

The arguments for State control are much stronger where 
the bodies involved are not professions in the traditional sense, 
but those whose members are more in the nature of trained 
technicians. 

There are three distinct areas in the exercise of the 
powers of self-government conferred on a profession or occu- 
pation: administration, policy and discipline. With mere 
administration we have little concern. It involves domestic 
details of the powers of self-government. The legislative 
powers to make public policy, and the judicial powers of disci- 
pline, do concern this Commission. 

There are six methods in which a measure of control is 
exercised by the government over the self-governing bodies, 
but there does not appear to be any rational or logical basis 
for the different manner in which controls involved are 
applied. 

(1) The board or council is appointed by the Lieutenant 
Governor in Council as in the Chiropody Act^ and the 
Dental Technicians Act.^ 

(2) Detailed rules for admission procedure are laid down 
in the governing Act, as in the Public Accountancy Act* 
and the Psychologists Registration Act."^ 

(3) Regulations are made by the Lieutenant Governor in 
Council governing the admission procedure, as in the 
Nurses Act.* 

(4) The bodies are given power to make their own rules 
and by-laws governing admission and procedure, subject 
to the approval of the Lieutenant Governor in Council, as 
under the Chiropody Act.^ 

(5) The bodies are given power to pass by-laws or make 
rules, subject to the power of the Lieutenant Governor in 
Council to revoke them as under the Dentistry Act.^"' 

*R.S.O. 1960, c. 57, s. 2(1). 
^R.S.O. 1960, c. 90, s. 2(1). 

"R.S.O. 1960, c. 317, s. 15, as amended by Ont. 1961-62, c. 113, s. 6. 
'R.S.O. 1960, c. 316, s. 6, as amended by Ont. 1965, c. 105, s. 1; and s. 7, as 
amended by Ont. 1962-63, c. 112, s. 1. 
*Ont. 1961-62, c. 90, s. 6. 
*R.S.O. 1960, c. 57, s. 3. 
"R.S.O. 1960, c. 91, s. 11. 



Chapter 79 1165 

(6) A Minister is required to be a member of the council 
or go\'erning body, as under the Medical Act," the Law 
Society Act,^^ and the Dentistry Act.^^ 

The constitution of the General Medical Council of Great 
Britain provides an interesting precedent. The council consists 
of forty-four members; eight are nominated by Her Majesty; 
twenty-eight are chosen by universities and rele\'ant profes- 
sional bodies, and eight are elected. This legislation is de- 
signed to give the council a broad base of authority so that 
the public interest will be protected, while at the same time 
the profession -^vill have ample opportunity to be heard as to 
the way in which the public interest is to be protected.'^ 

Appendix A to this Section^^ shows the extent to which 
there is government control over the self-governing bodies, 
and the way in which the controlling body of each is elected 
or appointed. Appendix B to this Section^*"' shows the extent 
to which there is government control over the rule making 
powers of the respective self-governing bodies. 

The effectiveness of the control exercised by these 
methods is very questionable. How far there should be more 
effective government control will be discussed later. Unques- 
tionably there are some self-governing bodies that require 
closer government control than others. 

Broadly speaking, the power of self-government may be 
subdivided under two headings: 

(a) The power to license; and 

(b) The power to regulate the conduct of the licensee, 
which includes the power to withdraw the licence. 

Under the first heading fall such matters as setting educa- 
tional standards, standards of technical competence, ethical 
and character requirements, and the admission procedures. 

"R.S.O. 1960, c. 234. 

^==R.S.O. 1960, c. 207. 

^^R.S.O. 1960, c. 91. The Minister of Health is a member of tlie medical coun- 
cil; the Minister of Education and Minister of Healtli are ex officio members 
of the Board of Directors of the Royal College of Dental Surgeons, and the 
Attorney General is a bencher of The Law Society of Upper Canada. 

^'Medical Act, 1956, 1 X: 5 Eliz. II, c. 76. 

'■See p. 1212 infra. 

'"See pp. 1213 ff. infra. 



1166 The Power of Self-Government 

Under the second, fall such matters as setting and maintaining 
standards of both competence and conduct, and supervising 
members and taking disciplinary action against any member 
who falls below the prevailing standards. These will be the 
subject of discussion in some detail. 

The traditional justification for giving powers of self- 
regulation to any body is that the members of the body are 
best qualified to ensure that proper standards of competence 
and ethics are set and maintained. There is a clear public 
interest in the creation and observance of such standards. This 
public interest may have been well served by the respective 
bodies which have brought to their task an awareness of their 
responsibility to the public they serve, but there is a real risk 
that the power may be exercised in the interests of the pro- 
fession or occupation rather than in that of the public. This 
risk requires adequate safeguards to ensure that injury to the 
public interest does not arise. 

We recommend that the principle applied in creating the 
British Medical Council be adopted in Ontario. Lay members 
should be appointed by the Lieutenant Governor in Council 
to the governing bodies of all self-governing professions and 
occupations. 



CHAPTER 80 

Rule-Making Power 

Ihere is no consistency throughout the several Acts 
under review with respect to rule-making power. This power 
may be di\ ided into two branches: 

(1) Power to make rules respecting policy matters, e.g., 
admission requirements and discipline; and 

(2) Power to make rules with respect to administration of 
the affairs of the self-governing body. 

With the latter the public has little concern, but the former 
is something in which the public has a very great interest. 

A review of some of the relevant acts emphasizes the con- 
fusion and inconsistencies that exist. 

Under the Dentistry Act,^ no power is provided to make 
regulations. However, the Board of Directors of The Royal 
College of Dental Surgeons of Ontario may pass by-laws. It is 
clear from the matters covered in the by-laws that these are 
intended to sen^e the same purpose as regulations. Non- 
administrative matters (e.g., the prescribing of admission 
standards which the Board is empowered to do)" should be 
dealt with in statutory regulations. 

Although the Board is authorized,^ subject to the ap- 
proval of the Lieutenant Governor in Council, to pass by-laws 
providing for the establishment, dexelopment and regulation 
of an ancillary body (dental hygienists), such provision has in 
fact been made by regulation.^ Not only does the Board have 

^R.S.O. 1960, c. 91. 

''Ibid., s. 4, as amended by Ont. 1966, c. 38, s. 5. 

''Ibid., s. 12. 

*R.R.O. 1960, Reg. 74. 

1167 



1168 Rule-Making Power 

the anomalous power to govern the practitioners of a separate 
occupation, but the power has been exercised by making regu- 
lations for which there is no statutory authority. This power 
is discussed further in what follows. 

The rules relating to registration requirements are called 
"Regulations" by the College, but are not to be found in the 
Ontario Regulations and are clearly not regulations stricto 
sensu. At the very least, the Dentistry Act^ and the activities 
of the College manifest a confusing use of terminology. 

The Drugless Practitioners Act deals wath drugless practi- 
tioners in general. It provides that the Lieutenant Governor 
in Council may make regulations classifying drugless practi- 
tioners (under such headings, presumably, as chiropractors, 
masseurs, etc.) and prescribing the systems of treatment that 
may be followed by practitioners of different classes.^ It is 
confusing that power to make regulations on exactly the same 
matters is conferred on the Board of Regents.'^ The situation 
becomes even more puzzling w^hen it is observed that the 
Board of Directors of a particular classification, once ap- 
pointed, has all the powers which the Board of Regents would 
have if the Board of Directors had not been appointed, and 
the Board of Regents ceases to act with respect to that classi- 
fication of drugless practitioners.^ 

Thus, the result is that the Lieutenant Governor in 
Council, by section 4, may prescribe the system of treatment 
to be follo^'.ed by a given classification,^ while the Board of 
Directors of that classification, by sections 5 and 6(e), may 
exercise the same power and, notionally at least, prescribe con- 
flicting systems of treatment. 

The conflict may be more apparent than real, since all 
regulations made under section 6 require the approval of the 
Lieutenant Governor in Council; nevertheless, the confusion 
should be eliminated. 

The Law Society Act^'' authorizes the Benchers of the Law 
Society of Upper Canada to make "regulations", but that term 

■^R.S.O. 1960, c. 91. 

"Drugless Practitioners Act, R.S.O. 1960, c. 114, s. 4. 
Ubid., s. 6(e). 
Ubid., s. 5. 
Ubid., s. 4. 
^"R.S.O. 1960, c. 207, s. 42. 



Chapter 80 1169 

is treated as synonymous with "rules". No "regulations" have 
appeared in the Ontario Gazette. The rules and regulations 
made by the Benchers recjuire no governmental approval, not- 
withstanding that the Act contains many more detailed pro- 
visions regarding the powers of the governing body than do 
the other Acts under review. The rules relating to admission 
to practice and to discipline should be contained in statutory 
regidations. 

The "rules" of the Law Society have not been published 
in such a manner as to be readily available, either to the pub- 
lic or even to the members of the profession. Rules of a self- 
governing body ought always to be readily available to anyone 
interested in seeing them. They are part of the law in force 
in the Province. 

In the Medical \ct^\ as in the Law Society Act,^- the 
words "rules", "regulations" and "by-law^s" seem to be used 
interchangeably. 

The Professional Engineers Act contains no provision 
for the making of regulations, but the Council of the Associa- 
tion of Professional Engineers of the Province of Ontario is 
empowered to pass "by-laws" which deal with, inter alia, such 
matters as admission to practice and discipline. These require 
the appro^•al of the Lieutenant Governor in Council and of 
a majority of the members of the Association.^^ These "by- 
laws" in fact appear labelled as "Regulations" in the Revised 
Regulations of Ontario, and have been amended in subsequent 
issues of the Ontario Regulations. ^^"^ 

The Optometry Act, 1961-62,^^ may be regarded as a 
proper model for the organization of rule-making powers. 
These powers are dealt ^vith in two separate sections: by sec- 
tion 7,^^ the Board of Directors of the College of Optometrists 
of Ontario may pass by-laws on purely administrative matters 
involving the management of the affairs of the College (e.g., 
management of property and meetings of the Board). For these 

"R.S.O. 19G0, c. 234. 
'-"R.S.O. 1960, c. 207. 
'"R.S.O. 1960, c. 309, ss. 4. 5, 
'3*R.R.O. 1960, Reg. 496, 
"Ont. 1961-62, c. 101. 
^'Ibid.. s. 7. 



1170 Ride-Making Power 

by-laws, no approval is required except passage by the College 
at a general meeting. By section 16,'^ the Board may make 
regulations respecting policy matters (e.g., admission require- 
ments, discipline). These require the approval of the Lieu- 
tenant Governor in Council and are published in the Ontario 
Regulations. 

This is the proper division of rule-making powers. In 
each case control over the exercise of the power is placed in 
the appropriate hands. 

SUMMARY 

A comparison of the various provisions with respect to 
the power to make regulations conferred on the relevant 
bodies reveals the following points: 

(a) There is considerable confusion of terminology. As we 
have indicated, the terms "regulations", "by-laws" and 
"rules" seem to be used interchangeably (e.g., the Den- 
tistry,^' Law Society,^'' Medical,^'' and Professional Engineers 
Acts-*^). A uniform terminology should be adopted and em- 
ployed. The term "regulations ' should be reserved for those 
rules which materially affect the public, and should be 
matters of public record published in the Ontario Gazette. 

(b) The approval by the Lieutenant Governor in Council 
is generally required. The only clear exceptions are in the 
Law Society-^ and Medical Acts.-- The Public Accountancy 
Act-^ does not require approval of regulations, but the 
Lieutenant Governor in Council may annul any regulations 
made by the Council. A partial exception to the general 
rule is found in the Architects Act,-^ which requires ap- 
proval by the Lieutenant Governor in Council for some 
regulations but not for others. In other cases (the Survey- 
ors-'^ and Veterinarians Acts-*^), there is no provision for the 

^"Ibid., s. 16. 
^^R.S.O. 1960, c. 91. 
^^R.S.O. 1960, c. 207. 
"R.S.O. I960, c. 234. 
-""R.S.O. 1960, c. 309. 
"^R.S.O. 1960, c. 207. 
"R.S.O. 1960, c. 234. 
"R.S.O. 1960, c. 317. 
^*R.S.O. 1960, c. 20. 
"R.S.O. 1960, c. 239. 
=«R.S.O. 1960, c. 415. 



Chapter 80 1171 

making of regulations but only of by-laws, which deal with 
such matters as admission to practice and discipline. These 
do not require the approval of the Lieutenant Oovernor in 
Council. 

In yet other cases (the Dentistry Act"-' and the Professional 
Engineers Act-^), the governing body may not make regula- 
tions but only by-laws dealing with, inter alia, admission 
and discipline, but these do require the approval of the 
Lieutenant Governor in Coinicil. 

(c) No consistent distinction is drawn between those rules 
which should be contained in by-laws, and those rules which 
should be contained in regulations. 

It is recommended that by-laws should deal only with 
matters of administration and domestic affairs, e.g., manage- 
ment of property, meetings of council, etc., while rules dealing 
with policy or adjudication, e.g., admission standards, disci- 
pline, etc., should be contained in regulations, as defined in 
paragraph (a) of this Summary. All regulations should be 
approved by the Lieutenant Governor in Council. 

"R.S.O. I960, c. 91. 
=«R.S.O. 1960, c. 309. 



CHAPTER 81 

Admission 



We have made it clear that the power to admit a 
licensee is not confeiTed to protect the economic welfare of 
the profession or occupation. Those professions or occupations 
which have been granted self-governing status are charged 
with a responsibility not only to see that persons licensed are 
qualified, but that all qualified applicants are licensed. 
The public has a genuine and very real interest in knowing 
that the members of the self-governing bodies are properly 
trained and have good ethical standards. The technical nature 
of the services performed by the members of such bodies makes 
it very difficult for the layman to assess the competence of the 
practitioner and gauge the value of the services he has re- 
ceived. The public must be able to rely on the judgment of 
those who are empowered to decide that persons licensed to 
practise a profession or engage in a self-governing occupation 
are qualified. That being so, the responsible and experienced 
members of a profession or occupation on whom the power of 
self-government is conferred should be in the best position to 
set the standards to be met and the qualifications of anyone 
who aspires to enter the profession or occupation. But it must 
be recognized that each of the self-governing bodies has been 
given a statu toi^y monopoly through its licensing powers. 
What has to be guarded against is the use of the power to 
license for purposes other than establishing and preserving 
standards of character, competence and skill. 

1172 



Chapter 81 1173 

Two questions arise: 

(a) May ciualified persons be excluded from entering self- 
governing bodies? 

(b) May the licensing power be used for purposes of limit- 
ing the number of persons permitted to become members 
of the self-governing bodies? 

The historical precedent of the medieval guilds, as de- 
scribed by Professor Gellhorn, illustrates the kind of thing 
that causes concern. 

'The medieval guilds, whether of merchants or of craftsmen, 
seem originally to have been concerned with the reputations 
of their members. Artisans and tradesmen kne^v that obser- 
vance of commonly accepted standards would enhance the 
reputation of all. At the outset the guilds readily accepted 
new members, seeking only to assure that all would measure 
up to the prescribed norms of reliability. Before the middle 
of the fourteenth century, however, there A\'as thinly dis- 
guised evidence of an aim to restrict competition by restrict- 
ing membership, and a century later the disguises were 
frankly discarded. . . . Competition between one guildsman 
and another all but disappeared. Each guild, in pursuit of 
monopoly for its members, exercised virtually complete gov- 
ernmental poAvers of a legislative, judicial, and financial 
character."^ 

Under the former rules of the Law' Society of Upper 
Canada, those applying to become members from outside the 
Province were required, in addition to passing the prescribed 
examinations, to pay a fee of SI, 500 as a condition precedent 
to being called to the Bar, while a candidate W'ho received 
his training in Ontario paid a fee of .SI 00. This form of dis- 
crimination has now been corrected, but it did exist for many 
years. Under the regulations passed under the Pharmacy Act, 
applicants for registration who have qualified outside Ontario 
shall not be registered in Ontario in numbers exceeding one 
per cent of the total registered membership of Pharmaceutical 
Chemists in Ontario in the same year. These restrictions serve 
to alert the public that the power of self-government has real 
monopolistic attributes. 

'Gellhorn, Individual Freedom and Governmental Restraints, 113. 



1174 Admission 

QUALIFICATIONS 

Qualifications for entr}' to self-governing bodies may be 
divided into two classes: 

(a) Educational qualifications, and 

(b) Non-educational qualifications. 

Educational Qualifications 

In fixing educational standards, two classes of candidates 
must be considered— those who have received their training in 
the Province of Ontario, and those who have received their 
training outside the Province. Qualifications which must be 
met by all applicants for admission to practise have been 
established for each of the self-governing bodies. In some 
cases, e.g., the Chiropody Act, the Optometry Act and the 
Embalmers and Funeral Directors Act, the required educa- 
tional requirements are set out in some detail in statutory 
regulations in question;- while in others, e.g., the Law Society 
Act,^ there is merely a provision empowering the governing 
body of the profession to prescribe educational standards for 
admission. 

We do not criticize the wisdom of the practice of con- 
ferring in some cases on certain bodies the power to fix educa- 
tional standards for admission, and in others of establishing in 
the controlling Act or by regulation passed thereunder, such 
standards. In some cases, the educational training of mem- 
bers of a profession extends over many years and puts the 
members of the profession in the best position to decide what 
should be the intellectual attainments for practitioners in their 
respective professions. In other cases, self-government has been 
granted to those whose occupations do not require high stand- 
ards of academic training btit training of a more technical 
nature. Such standards for admission can be set conveniently 
either by the go\'erning Act or the regulations passed there- 
under. 

In any case, there should be adequate safeguards against 
standards of admission being employed as regulatory devices 
to limit the number of those entering the profession or occupa- 

''See R.R.O. 1960, Reg. 53, s. 12 (Chiropody); O. Reg. 166/63, s. 1 (Optom- 
etry); and R.R.O. 1960. Reg. 129. ss. 2. 4 (Embalmers). 
'R.S.O. 1960, c. 207. 



Chapter SI 1175 

don. The risk that this may be done is greater in those pro- 
fessions or occupations where the vigilance <»f nni\crsiries is 
not likely to alert the governnicnt or the public lo the adop- 
tion ol unrealistic standards. Since the risk of misuse of the 
power to set educational standards exists, there should be 
some form of control. 

Non-Educational Qualifications 

Many of the self-governing bodies require other c^ualifica- 
tions from their entrants which may have no clear relevance to 
their training, ability or technical competence. 

(i) Age 

Approximately half of the governing statutes in Ontario 
specify no minimum age for applicants for admission. Of the 
occupations which do call for a minimum age, all but two set 
the age at twenty-one.^ There can be no objection to a reason- 
able age qualification. 

(ii) Good Moral Character 

Good moral character is a requirement common to the 
professional or occupational statutes and its relevance cannot 
be disputed. It is, however, a relative term. What the term 
should mean as applied to one profession or occupation may 
be quite different from the meaning the term should bear as 
applied to another. One measures moral character by a higher 
standard where the emphasis is on skilled advice or the 
management of trust funds. The requirement of good moral 
character is to the ethical aspect of a profession what the edu- 
cational standards are to competence. To state the require- 
ment is one thing, but to apply it is another. Moral weaknesses 
are seldom apparent and they often only become manifest 
when the individual is exposed to the problems arising in the 
profession or occupation involved. It is extremely difficult, 
if not impossible, to detect future moral risks. Notwithstand- 
ing the difficulties of application, it is nevertheless necessary 
to have standards of good moral character where bodies are 
given the power of self-government. The determination of 

*Embalmers and Funeral Directors Act, and Regulations governing Dental 
Hygienists, require that a licensee be not less than twenty years of age. 



1176 Admission 

moral instability, like the determination of other standards, is 
essentially a judicial decision and an applicant should only be 
refused admission on this ground after being afforded a hear- 
ing. The right of appeal will be discussed later. 

(Hi) CitizensJiip 

When the Legislature confers on any professional or oc- 
cupational body the power of self-government, there is a dele- 
gation of legislative and judicial power which is an exercise 
of the sovereign authority of the State. There is strong argu- 
ment in favour of the contention that legislative and judicial 
power should only be exercised by persons who would ordi- 
narily be entitled to vote and be candidates in a provincial 
election. 

Few of the self-governing bodies have any requirement 
respecting citizenship. The Architects Act^ requires, as a con- 
dition precedent to membership in the Association, that the 
applicant be domiciled in Ontario, a British subject, or one 
who has taken the oath of allegiance and declared his intention 
of becoming a British subject. Under the regulations passed 
under the Dentistry Act*^ controlling membership in the 
ancillary body "Dental Hygienists", no person shall be regis- 
tered as a dental hygienist unless she is a Canadian citizen or 
a British subject, or furnishes proof to the satisfaction of the 
Board of Directors of the Royal College of Dental Surgeons 
of Ontario that she intends to make application for Canadian 
citizenship within a reasonable time.^ The Barristers Act^ and 
the Solicitors Act" require that candidates for admission be 
British subjects. In certain cases (e.g., the Pharmacy Act, the 
Professional Engineers Act, and the Chiropody Act), appli- 
cants are asked to state their nationality or citizenship.^" 

We do not think that citizenship should be a condition 
precedent to membership in any of the self-governing pro- 
fessions or occupations. Such a provision would in many cases 

'R.S.O. 1960, c. 20, s. 7. 
"R.S.O. 1960, c. 91, s. 12. 
'O. Reg. 332/65, s. 7. 
*R.S.O. 1950, c. 30, s. 2. 
"R.S.O. 1960, c. 378, s. 3. 

'"See R.R.O. 1960, Reg. 480, Form 1 (Pharmacists); R.R.O. 1960, Reg. 496. 
Form 2 (Professional Engineers); and R.R.O. 1960, Reg. 53, Form 3 (Chirop- 
odists). 



Chapter 81 1177 

deny to members of the public the services of highly skilled 
professional men and women during the period that must 
expire before citizenship can be acquired. The requirement 
that barristers and solicitors be British subjects is justified, 
as barristers and solicitors are officers of the court. On the 
other hand, we think tliat all statutes conferring powers of 
self-government should contain provisions that only British 
subjects may hold office in the respective bodies or exercise 
the powers of self-government. It is inconsistent with the 
exercise of delegated legislative power and judicial power that 
the power may be exercised by persons who would not 
ordinarily be qualified to vote or sit as members of the Legis- 
lature which delegates the power.^^ 

ADMISSION OF APPLICANTS WHO RECEIVED 
TRAINING OUTSIDE ONTARIO 

Two questions arise with respect to educational require- 
ments to be met by applicants from outside the Province: 

(1) Are there relevant local provincial conditions? and 

(2) What is the relevant coverage of the applicant's training? 

In many cases local provincial conditions are irrelevant. 
For example, a study of engineering or pharmacy involves sub- 
stantially the same content wherever it may be undertaken. 
But the extent of the study is another matter. This general 
statement does net apply to the study of the law which may 
in\'olve a strong local element. The Ontario law may be quite 
different from the law Avhere the applicant received his 
training. 

The main problem in applying educational standards for 
applicants from outside the Province is the coverage which 
may involve not only what the candidate has studied, but his 
qualifications as compared with those of persons trained within 
the Province. This problem has two slightly different aspects 
as it in\olves applicants who ha\'e been trained outside On- 
tario but within Canada, and applicants who have been trained 
outside Canada. 



"Appendix C to this Section is an analysis of the admission requirements of 
the self-governing bodies. See pp. 1218A ff, infra. 



1178 Admission 

The essential questions raised by each concern the edu- 
cational standards of applicants as related to the standards of 
those trained in Ontario. The non-educational requirements 
discussed above should create no problem. Such requirements 
as age and good moral character are constant, no matter where 
the indi\'idual applicant comes from. The non-educational re- 
quirement of citizenship has been discussed. 

Even in those fields of study where there is no significant 
difference in the subject matter from one province, country or 
continent to another, there may still be a serious question in 
the case of any particular applicant as to whether his training 
satisfies the requirements established by the profession in this 
Province. Here, as in all questions of admission to practice, 
the overriding consideration must be the protection of the 
public by the maintenance of high standards. 

Admission standards should not be set as an encourage- 
ment or discouragement of the immigration into Ontario of 
persons who have particular skills or qualifications. Questions 
of immigi'ation are entirely separate from the exercise of the 
powers conferred on self-governing bodies. The only relevant 
question, apart from non-educational requirements, to be 
asked of any applicant for admission, no matter what his place 
of origin and no matter where he took his training, is whether 
he has met the required educational standards established in 
the Province. This question can only be answered by compar- 
ing the applicant's training with the established standards. 
Such an inquiry admits of only one of two possible conclu- 
sions: either the standards have been attained by the appli- 
cant, or they have not. In the former case, the applicant 
should be admitted as a member of the self-governing body. 
In the latter case, the governing body in question may, instead 
of refusing the application, decide that the requirements have 
been substantially met, but not entirely. In such a case the 
candidate may be classed as conditionally admissible. That is, 
he may be admitted if he satisfies the outstanding require- 
ments. This is the course followed now in proper cases in 
some of the professions; for instance, under the Transfer 
Regulations of the Admissions Committee of The Law Society 
of Upper Canada, a barrister and solicitor who has practised 
for a continuous period of not less than three years, in another 



Chapter 81 1179 

Canadian common law jurisdiction, immediately preceding 
application, may be admitted to practise in Ontario, provided 
he: 

(a) Presents a certiHcate of good standing from ihc pro\ incc 
of whose bar he is a member, and 

(b) Passes the prescribed examination on the statutes and 
practice and procedure of Ontario. 

The regulations luider the Pharmacy Act provide that 
an applicant for admission from outside Ontario must have 
academic (jualifications at least e(iui\'alent to the degree of 
Bachelor of Science in Pharmacy at the University of Toronto, 
and if he does not possess such qualifications he may be re- 
quired to pass such of the examinations leading to that degree 
at the University of Toronto as shall be stipulated by the 
Council of the Ontario College of Pharmacy. 

The process of measuring an applicant's qualifications 
against the established standards is essentially a judicial mat- 
ter. Self-governing bodies should be required to hold a hear- 
ing in all cases before an application is rejected. At such 
hearing the applicant should be given the opportunity of pre- 
senting evidence of the details of the course of study he has 
pursued and making representations to the admitting author- 
ity. A right of appeal from a decision refusing admission will 
be discussed later. 

Reciprocal Arrangements for Admission 

The principle on w^hich reciprocal arrangements are 
made for admission to the relevant professions or occupations 
should be: Are the training and qualifications required for ad- 
mission in the other jurisdictions equivalent to those in 
Ontario? The test should be whether the standards for admis- 
sion to practice in Ontario are met, not whether Ontario 
licensees are admissible in the other jurisdiction. 

The Surveyors Act'- contains the sort of provision that is 
founded on a principle clearly designed to protect the pro- 
fession. 

"24. The board has power to grant exemption from the Avhole 
or part of the term of apprenticeship and from tlic whole or 



"^'R.S.O. 1960, c. 389. 



1180 Admission 

parts of ibe intermediate and final examinations in ih.c case of 
a person '^vho has attained the age of t^venty-one years and has 
practised as a surveyor in any of Her Majesty's realms other 
than the Province of Ontario, and has satisfied the board that 
the qualifications for practising required in such realm are 
similar to those required in Ontario and has produced to the 
board his certificate or diploma; provided that the same or 
similar privileges are gianted in such realm to Ontario land 
surveyors. "^^ 

This provision is limited to those who might come from "Her 
Majesty's realms", and further limited to those realms that 
extend similar privileges to Ontario sun'eyors. 

It is recommended that there should be no legislative 
recognition of a po^vver to exclude qualified applicants for 
admission who come from outside the Province on any prin- 
ciple dependent on reciprocal arrangements. 

Admission Procedure 

The safeguards outlined in Chapter 14 of this Report 
with respect to an appropriate procedure for tribunals in 
Ontario, and our recommendations set out therein, apply 
■^s'ith force to procedure regarding the admission of members 
to self-governing bodies and the control of the privileges of 
inembership. Suitable procedure for admission differs in many 
respects from that appropriate to the exercise of the power to 
erase from the register, although both are judicial decisions. 

The procedure on admittance presents no problem, un- 
less the matter of rejection of an applicant for admission is 
raised. Clear and simple rules with respect to proof and 
qualifications should be set out, either in rules or the govern- 
ing statutes. A decision to reject an applicant ought not to 
be made '^vithout a hearing, and written reasons by the ad- 
mitting tribunal should be given in all such cases. Under the 
Medical Act of Great Britain, there is a right of appeal by 
way of stated case to the Privy Council against a refusal to 
register. ^"^ 

We recommend that a right of appeal should lie to the 
Appellate Division of the High Court of Justice for Ontario 
vrherever an application to be admitted to a self-governing 
body has been rejected. 

^^Ibid.. s. 24. 

"1956, 4 &: 5 Eliz. II, c. 76, ss. 24, 26. 



CHAPTER 82 

Discipline 

DISCIPLINARY POWERS 

Ihe obligation to maintain high standards of compe- 
tence and ethical conduct is not discharged once an applicant 
has been admitted to practice. There is the continuing obli- 
gation to see that practising members of the body provide 
proper service to the public. The service provided will only 
be valuable so long as it is a combination of a high degree of 
technical competence and a vigilant observance of the ethical 
requirements of practice. 

Traditionally, the self-governing bodies have policed their 
own ranks, and clearly they have a proper interest in doing so. 
Almost all the problems which arise in relation to this ques- 
tion concern the machinery of discipline to be employed. 

The most obvious feature of the power of a self-governing 
body to discipline its members is that it is clearly a judicial 
power within the meaning we have given to that term, i.e., it 
consists of the independent and impartial application of pre- 
determined rules and standards; no element of policy should 
be present in the exercise of this power. It is a power whose 
exercise may have the most far-reaching effects upon the indi- 
vidual who is disciplined. The sanction imposed upon one 
who has been found guilty of professional misconduct may be 
anything from a reprimand to expulsion from the profession. 
Where conviction may result in what has aptly and justifiably 
been termed "economic death", it is vital that procedural 
safeguards to ensure fairness be clearly established and rigor- 
ously obsei'ved. 

1181 



1182 Discipline 

The last proposition would appear too obvious to need 
to be stated, but nevertheless an examination of the statutes 
conferring powers of self-government shows a bewildering 
array of inconsistencies and omissions in the provisions made 
for disciplinary procedure. Many of the statutes fall far short 
of the essential procedural requirements for judicial tribunals 
set out in Chapter 14 of this Report/ 

There does not appear to be any rational explanation for 
the inconsistencies in these statutes, except that each statute 
appears to have been drawn without reference to any required 
code of procedure and without an awareness of the necessity of 
surrounding such judicial powers with the procedural safe- 
guards necessary to promote justice. 

Procedural defects are not the only grounds for criticism. 
The provision of a set of rules is not in itself sufficient. That 
such wide judicial powers as those conferred on the self- 
governing bodies should be placed in private hands may be 
expedient, but it is anomalous. Disciplinary powers are penal 
powers. When these powers are conferred on private indi- 
viduals who take no oath of office, and for whom in most cases 
the government has no responsibility for appointment, a pri- 
vate court is created. Such powers remind one of the private 
justice of feudal times, when the Lord of the Manor had the 
right to hold the court for his tenants. The private disci- 
plinary justice meted out by the self-governing bodies is, in 
a very real sense, an anachronism the survival of which can 
only be justified if all the interests concerned are better pro- 
tected by this method than they could be by any other. The 
first matter to bear in mind is the reason that the power of 
self-government is granted to any body. Many occupational 
bodies require regulation in the public interest, but this is 
often done by setting up a licensing scheme with different 
methods of control, e.g., real estate brokers, investment dealers, 
and used car dealers. It is not suggested that such a licensing 
scheme w^ould be appropriate for all self-governing bodies, but 
before new powers of self-government are conferred it should 

'In Appendix D to this Section we have set out an analysis of the grounds 
£or disciphnary action as contained in the revelant legislation. See pp. 1219 

II. infra. 



Chapter 82 1183 

be clearly demonstrated that a licensing scheme would not 
be appropriate. 

There arc three groups with an interest in the efficacy and 
fairness of disciplinai^ proceedings of self-governing bodies. 
They are: 

(1) 7 he public, whose benefit and protection are the pri- 
mary objectives of the whole process; 

(2) Members of the self-governing body, ^vho are or may be 
subjected to discipline: and 

(3) The profession or occupation itself, which has a general 
interest in ensurino; the maintenance of hisrh standards of 
professional or occupational conduct. 

In general, (questions of professional or occupational 
misconduct, incompetence and unethical practices are mat- 
ters which the leading members of a profession or occupation 
should be best able to judge. However, the ability born of 
experience to decide Avhat is and what is not professional or 
occupational misconduct, is not necessarily the same thing as 
the ability to occupy satisfactorily the seat of justice. There 
is in the present situation a vei'y real danger that the protec- 
tion of public, professional and occupational interests will 
cause the other interests in\oh'ed to be disrefirarded. 

The practitioner against whom disciplinary proceedings 
are directed has a very real interest in the fairness of the pro- 
ceedings. Basic concepts of penal justice, such as the presump- 
tion of innocence, have just as much place in such proceedings 
as in the courts of law. Unless the interests and rights of the 
accused are protected under the present system, or unless the 
present system can be modified by the introduction of safe- 
guards for those interests and rights, the argument is very 
strong that the right to dispense private professional penal 
justice should be ^vithdrawn and all disciplinary matters be 
decided by the courts of law. 

A perusal of the relevant statutes indicates that the 
powers of self-government appear to have been extended to 
bodies where the technical competence of their members 
could ^vell have been controlled by licensing, without extend- 
ing to them the monopolistic attributes of self-government. 



1184 Discipline 

There are defects other than procedural ones which cause 
concern and criticism of the present system. Some of these 
defects are inherent in a system which places extensive judi- 
cial powers in the hands of persons who have little or no 
judicial experience; others spring from a lack of definition of 
both the ends to be achieved by disciplinai7 proceedings, and 
the means of arriving at those ends. These defects and recom- 
mendations for their removal will be considered. 

COMPOSITION OF THE DISCIPLINARY TRIBUNAL 

In some of the professional statutes, or in the regulations 
or by-laws made under them, provision is made for disci- 
plinary powers to be exercised by a discipline committee (e.g., 
the Pharmacy Act). In others, (e.g., the Chiropody Act, the 
Drugless Practitioners Act, the Professional Engineers Act), 
the powers are exercised by the governing body itself. The 
Medical Act and the Dentistry Act provide for limited powers 
which may be exercised by a discipline committee. In the 
event that the discipline committee decides that the case calls 
for a penalty which it does not have jurisdiction to impose, 
the committee reports to the council and council may act on 
the report of the discipline committee, or may require that 
it be furnished with a transcript of the evidence taken, or 
may refer the matter back to the committee to take additional 
evidence. In those cases where the penalty to be imposed is 
beyond the jurisdiction of the discipline committee, there is 
no provision that a copy of the report to council be furnished 
to the accused member or that he have a hearing before the 
council. This we think is an unjust procedure and inconsis- 
tent with the recommendations contained in Chapter 14. 

In certain cases, a discipline committee makes a decision 
and there is a right of appeal, as under the Medical Act to 
the Council, and under the Dentistiy Act to the Board, with- 
out provision that members of the discipline committee— who 
were members of the Council or Board, as the case might be 
—should not sit as members of the body hearing the appeal. 
This "^ve shall discuss later. 

The lack of judicial experience of the governing bodies 
gives rise to concern. There can be no doubt that frequent 
exposure to judicial process is essential for the creation of a 



Chapter 82 1185 

familiarity with the procedure and an awareness of its pur- 
poses. Many of the members of the governing bodies must 
necessarily have little or no experience of adjudication and 
judicial procedure. The cases requiring discipline are in- 
frequent and the membership of the tribunal changes from 
time to time. We have been advised that the disciplinary 
po^vers of the Ontario Board of Examiners in Psychology have 
never been exercised since they were first provided in 1960. 
It is difficult to see how a practitioner against whom a com- 
plaint is laid can confidently expect such a body to be suffi- 
ciently familiar w4th procedural requirements to ensure a 
completely fair hearing for him. 

The factor of judicial and procedural inexperience goes 
deeper than mere unfamiliarity with the process of adjudica- 
tion. Nothwithstanding that the Ontario College of Physicians 
and Surgeons heard seven separate charges of unethical 
conduct against members of the College in the six months 
preceding its half-yearly report published in June, 1966, grave 
procedural errors were found by the Court of Appeal to have 
been made in Re Glassman and the Council of the College of 
Physicians and Surgeons} The errors w^re not mere tech- 
nical or formal lapses. In Mehr v. Law Society of Upper 
Canada,^ the Supreme Court of Canada found that the de- 
mands of fundamental fairness and natural justice were not 
met by the discipline committee of The Law Society. 

It has been suggested that the problem of disciplinary 
procedure should be solved by providing a Professions Dis- 
ciplinary Tribunal which w^ould be composed of representa- 
tives of all self-governing bodies and which would hear all 
disciplinary cases of such bodies. Such a tribunal would 
enjoy certain advantages, chief among which would be: 

(a) That by experience in the technique of adjudication 
it would acquire a familiarity wdth the judicial process 
which w^ould be conducive to the establishment of a uni- 
form and fair procedure in all cases; and 

(b) That since such a body would be independent of any 
one profession, it would not be vulnerable to the charge of 

*[1966] 2 O.R. 81 (C.A.). 
'[1955] S.C.R. 344. 



1186 Discipline 

"looking after its own"; at present, no matter how fair- 
minded and conscientious a disciplinary body may be, a 
disgruntled member of the public may do serious damage 
to the reputation of a profession as a whole by quite un- 
founded complaints that its members "stick together". 

On the other hand, such an independent tribunal could 
not bring to any individual case that knowledge of the prac- 
tice and standards of the particular profession or occupation 
which is the main justification for the present system. How- 
ever, such a tribunal could receive expert evidence on what 
constitutes professional misconduct in the particular profes- 
sion of which the accused is a member. 

Although the independent tribunal has some advantages, 
we do not recommend it. We think that the public interest 
will be better sened by the present system, as applied to truly 
professional bodies, if further safeguards are provided. This 
was the \'iew taken by the members of the Ontario Court of 
Appeal in the Glassman case. Schroeder, J. A. said: 

"On a charge imputing misconduct to a medical practitioner 
in the pursuit of his profession the members of the Council 
are the best possible judges to determine the issues involved."* 

Laskin, J. A. said: 

"I do not doubt the advisability of having allegations of pro- 
fessional misconduct initially passed upon by the professional 
body statutorily authorized to enforce ethical standards upon 
licensed members."^ 

While these principles apply to truly professional bodies 
whose members have had many years of education and spe- 
cialized training, it is not so clear that the public interest 
demands that the monopolistic powers of self-government in 
licensing be conferred on bodies whose members are trained 
technicians engaged largely in quasi-commercial activities. 

In any case, the governing bodies of the designated pro- 
fessions and occupations cannot be left to formulate their own 
rules of procedure and to conduct their hearings in their own 
way without considerable effective supervision. 

*[1966] 2 O.R. 81, 100. 
Hbid., 101. 



Chapter 82 1187 

Two matters are raised in the Glassman case which 
recjuire the attention of this Commission: 

1. The members of the disciplinary committee sat as mem- 
bers of the Council, heaving an appeal from a decision of 
the discipline committee in which they had participated. 

2. Counsel, who appeared to present the case against the 
accused, conferred with the Council during its deliberations 
upon the subject matter of the appeal. 

On the first point, the court did not decide whether the 
members of the discipline committee were legally disqualified 
from sitting on the appeal, but merely stated the opinion 
that it would be better if they did not do so.^ There should 
be a statutory rule prohibiting members of an inferior tri- 
bunal from sitting on appeals from decisions in which they 
have participated. No one who has exercised judicial powers 
should participate in hearing an appeal from his own decision. 

On the second point, the Court of Appeal, w'ith some 
apparent misgivings, followed an earlier decision'^ and held 
that the decision of the Council was not invalidated because 
of the presence of counsel for the Council during the delibera- 
tions on the case. The court, however, drew attention to the 
the British Medical Act,** which makes provision for the ap- 
pointment of a legal assessor. We have recommended that the 
rules governing judicial tribunals (as we have emphasized, a 
disciplinary committee of a self-governing body is a judicial 
tribunal) should provide explicitly that, where the tribunal 
seeks legal ad\'ice, the nature of the advice should be made 
known to the parties in order that they may make submissions 
as to the law, and in no case should the members of the tri- 
bunal seek advice from or consult with counsel for either side 
in the absence of the other side." 

The provisions of the British Medical Act,^'' and the 
rules passed thereunder, established minimum standards of 
caution that should apply to all disciplinary bodies. The 

'Ibid., 97. 

'R. V. Public Accountants Council, Ex parte Stroller, [1960] O.R. G31. 
'1956, 4 & 5 Eliz. II, c. 76. 
"Chapter 14, p. 220 supra. 
'"1956,4 &:5 Eliz. II, c. 76, s. 24. 



1188 Discipline 

legal assessor, for which provision is made, must be a bar- 
rister or solicitor of ten years standing. In all proceedings 
before the disciplinary committee, he must be present. His 
function is quite distinct from that of "counsel for the prose- 
cution". He is an adviser to the committee on questions of 
law only, and in addition he has a duty to inform the com- 
mittee forthwith of any irregularity in the conduct of pro- 
ceedings which comes to his knowledge. The advice to the 
committee must be tendered in the presence of every party 
appearing at the hearing. If a question is referred to the 
assessor after a committee has begun its deliberations, and the 
committee considers that it would be prejudicial to the dis- 
charge of its duties for the advice to be tendered in the pres- 
ence of the parties or their representatives, the advice may be 
tendered in their absence. Where this action is taken, the 
assessor must as soon as possible personally inform the parties 
of the question put to him by the committee and his advice 
thereon. His advice must subsequently be put in wi'iting 
and a copy of it given to the parties. Copies of written advice 
must be available on application to every party to the pro- 
ceedings who does not appear thereat.^^ 

We consider that the principle of a legal assessor adopted 
in Great Britain is sound, but we would go further. We think 
he should be appointed to sit as a member of the committee 
and that he should not be counsel or solicitor to the govern- 
ing body of the relevant profession or occupation. We do not 
think that the provisions of the regulations under the Archi- 
tects Act^^ and the Dentistry Act,^^ giving power to the board 
to call in a solicitor or counsel for assistance and advice, and 
in the Medical Act,^^ providing that "the College shall pro- 
vide the discipline committee with . . . the services of coun- 
sel. . . ." are satisfactory. They do not provide the elementary 
safeguards of an open hearing, where those who might be 
affected by the decision may have an opportunity to present 
full argument. An opportunity to present full argument in- 

^^Ihid., s. 37, and rules passed thereunder; see 26 Halsbury, Laios of England 

(3rded.), 60, paras. 117, 118. 
"R.S.O. 1960, c. 20. 
"R.S.O. 1960, c. 91, s. 25 (8). 
"R.S.O. 1960, c. 234, s. 34, as amended by Ont. 1962-63, c. 80, s. 1. 



Chapter 82 1189 

dudes an opportunity to know what legal arguments are 
presented against a party and to meet them. 

The extent to which the legal assessor should participate 
in the decision is a matter for debate. In California, the 
legally qualified member is chairman, while in Great Britain 
the assessor is merely an adviser. 1 he trial of cases before a 
disciplinaiy body is much more serious than many trials con- 
ducted in the regular courts. Matters of law and fact are 
often difficult to distinguish. Having this in mind, we think 
that there should be a well-qualified lawyer on each disciplin- 
ary body, to whom arguments of law may be addressed and 
whose advice on law^ will be reflected in the written reasons 
of the committee. Such a provision in the governing statutes 
w^oiild presene the advantages provided by the procedure laid 
doAvn in the British Medical Act, without following the 
somewhat cumbersome procedure of furnishing the parties 
with copies of legal opinions. 

PROFESSIONAL MISCONDUCT 

Some controlling statutes (e.g., the Surveyors Act^^) refer 
to "professional misconduct" as a ground for taking dis- 
ciplinary action against a practitioner; others, (e.g., the 
Veterinarians Act,^^ and the Professional Engineers Act^"^) 
refer to "unprofessional conduct". The difference between the 
two terms does not appear to be very great and it is probable 
that the professions treat them as synonymous. Nevertheless, 
since it is desirable that the standards of professional behav- 
iour be defined with as much precision as possible, it would 
be preferable to use a single term throughout the professional 
statutes. Of the two, "professional misconduct" w^ould appear 
to be the more appropriate. "Unprofessional conduct" is a 
much wider term and it could mean "conduct unbecoming to 
a professional man", which might involve conduct that had 
nothing to do wdth professional standards. Professions have 
an interest in seeing that their members conduct their lives 
according to certain accepted standards. In the Surveyors Act,^^ 

"R.S.O. 1960, c. 389, s. 36(1). 
"R.S.O. 1960, c. 416, s. 14(1). 
^^R.S.O. 1960, c. 309, s. 28(1). 
"R.S.O. 1960, c. 389, s. 36(1). 



1190 Discipline 

as an alternative to professional misconduct, the term "conduct 
apt to bring the profession into disrepute" is used. The pro- 
tection of the corporate image of a profession or occupation 
is a secondary consideration in matters of discipline. The 
main emphasis should be on the protection of the public; for 
that purpose it is misbehaviour in the conduct of professional 
matters which is important. 

Each of the self-governing bodies should circulate to its 
members a code of ethics or a statement of what consitutes 
professional misconduct. If a person is to be punished for 
activity which has been prohibited, he should have available 
the means of knowing what activity is prohibited. In other 
words, each member of the self-governing bodies should know, 
or should have the means of knowing, what is regarded as 
improper conduct, in so far as the powers of discipline may 
be exercised. In some cases, e.g., the optometrists, the public 
accountants, the veterinarians, codes of professional ethics 
have been drawn up and are contained in the by-laws. In 
others, e.g., the professional engineers, the code of ethics has 
been incorporated into the statutory regulations. In still 
others, e.g., the pharmacists, the psychologists and the various 
branches of the drugiess practitioners, unprofessional conduct 
is stipulated as a ground for disciplinary action, but is no- 
where defined. It may be impossible to stipulate in advance 
all the varieties and shades of activity which will be regarded 
as professional misconduct, and a general clause providing 
for discipline for "professional misconduct" will always be 
necessary so as to allow the profession to take account of un- 
foreseen types of misbehaviour. The presence of such a gen- 
eral provision does not make it any less desirable that each 
body exercising disciplinary powers of self-government should 
have a code of ethics. 

An unusual provision relative to disciplinary action is 
contained in the Pharmacy Act. Not only does it provide the 
basis for disciplining pharmacists, but also a basis for discip- 
lining medical practitioners, dentists and veterinarians. The 
Act reads: 

"51. (3) Where it appears to the Minister that a legally quali- 
fied medical practitioner, dentist, veterinary surgeon or phar- 
maceutical chemist has sold or prescribed an excessive, unrea- 



Chapter 82 1191 

sonabic or improper amount of any drug referred to in 
Schedule D or has failed to make a complete report under 
subsection 1, the Minister may report such matter to the 
discipHnary body of The College of Physicians and Surgeons 
of Ontario, The Royal College of Dental Surgeons of On- 
tario, The Ontario Veterinary Association or The Ontario 
College of Pharmacy, as the case may be."^'* 

One may search the statutes governing the relevant pro- 
fessions but will find no reference to this provision or this 
ground for discipline. The law for each body should be clearly 
set out in the statutes or regulations governing that body. This 
is particularly true with respect to disciplinary matters. 

We recommend that each of the self-governing bodies 
draw up an itemized list of activities which have been classi- 
fied as professional misconduct. As new activities are classified 
by the exercise of power imder that residuary "professional 
misconduct" clause, such classification, whether it has been 
made by a ruling or by a decision in an actual case, should 
be circtilated to the profession. 

All standards of conduct should be drafted for the main 
purpose of protecting the public and not the profession itself. 
The regulations passed under the Act respecting Ophthalmic 
Dispensers-" provide an example of w^hat ought not to be 
done. The Act gives the Board of Ophthalmic Dispensers, sub- 
ject to the approval of the Lieutenant Governor in Council, 
power to make regulations "defining unprofessional conduct 
for the purposes of this Act".-^ The relative regulation passed 
reads as follows: 

"5. For the purposes of the Act, unprofessional conduct means, 

(a) the procuring of registration by misrepresentation or 
fraud; 

(b) being mentally or physically incapable of practising as an 
ophthalmic dispenser and so certified by a duly qualified 
medical practitioner; or 

(c) being so given over to the use of alcohol or drugs as to 
be incapable of practising as an ophthalmic dispenser."-^ 



'"R.S.O. 1960, c. 295, s, 51(3). 
"Ont. 1960-61, c. 72. 
''Ibid., s. 22 (d). 
"'O, Reg. 376/61, s. 5. 



1192 Discipline 

This is a limiting and comprehensive definition of unprofes- 
sional conduct for the purpose of the Act. One who procures 
registration by fraud is guilty of unprofessional conduct, but 
one who perpetrates fraud in the practice of his profession is 
not. It is inhuman to define by statute mental illness as un- 
professional conduct. In addition, the certificate of only one 
medical practitioner should not be sufficient to give a basis 
for disqualification. We think that the rules of the Law 
Society of Upper Canada lay down the proper test in such 
cases, "Where a member has been declared, certified or found 
to be mentally incompetent or mentally ill pursuant to the 
revelant statutes in that behalf, the benchers may, by resolu- 
tion, suspend him from practice.""^ 

In the regulations governing chiropodists,^^ the provis- 
ions with regard to discipline are directed almost entirely to 
the protection of the interests of those engaged in the calling.^^ 

"Reg. 81(1). 

"R.R.O. 1960, Reg. 53, s. 8. 

""See Appendix D to this Section, pp. 1219 ff. infra. 



CHAPTER 83 



Procedure Before Disciplinary 
Bodies 



O OME of the procedural deficiencies in tlie relevant 
legislation applying to the respective self-governing bodies 
demand particular attention. 

NOTICE OF HEARING 

Several of the Acts— the Architects, Embalmers, Nurses, 
Optometry, Pharmacy, Professional Engineers, Psychologists 
Registration, Public Accountancy, Radiological Technicians 
and Veterinarians Acts— contain no provision as to the time 
which must elapse between the sending out of a notice of 
hearing and the date of the hearing. This deficiency is aggra- 
vated by the absence in all but two of the Acts— the Architects 
Act and the Law Society Act— of any provision for an adjourn- 
ment of the hearing. Where notice to the member complained 
of is provided for, the time most frequently given is ten days 
before the hearing. It is recommended that an interv^al of at 
least ten days be required in all the statutes, coupled with 
an express power in the disciplinary body to adjourn the 
hearing from time to time. 

SERVICE OF NOTICE 

Where there is any provision for service, as a general 
rule the formula adopted is "service by registered mail to the 
member's last address on the professional register." This is 

1193 



1194 Procedure Before Disciplinary Bodies 

not altogether satisfactory. Ihe regulations made vmder the 
Dental Technicians Act^ require personal service of the notice 
of hearing, while the Law Society Act calls for personal sei'vice 
or service by registered mail or publication of the notice of 
hearing in a newspaper in the city, town or county where the 
member resides or practices. Uniformity of practice is desir- 
able. It is recommended that there be a requirement for the 
notice to be served personally upon the member complained 
of, or, if personal service cannot be effected, service by reg- 
istered mail addressed to the member at the address last shown 
on the register should be sufficient. 

FAILURE TO ATTEND HEARING 

The rule most frequently found is that the hearing may 
proceed in the member's absence if, after receiving notice of 
the hearing, he neglects to attend. This is satisfactory. How- 
ever, under the Dentistry and Surveyors Acts, not only may 
the hearing proceed in the absence of the member complained 
of, but, once having failed to attend the original hearing, the 
member is not entitled to notice of any further hearings or 
proceedings. 

Under the Professional Engineers Act, sanctions cannot 
be imposed until after the disciplinary body has heard evi- 
dence under oath on behalf of the accused. This would suggest 
that if the member complained of does not appear at the 
hearing, the hands of the disciplinary body are tied and they 
cannot proceed to impose a sanction upon him. We think it 
reasonable that the disciplinary body be empowered to pro- 
ceed in the absence of the member who has received proper 
notice of the hearing. Provision should be made for service 
of a copy of the decision and reasons therefor on a member 
disciplined, whether he attends of not, 

RIGHT TO COUNSEL 

In only half of the professional statutes is the right to 
counsel recognized. In the Dentistry (with respect to dental 
hygienists), Drugless Practitioners (general), Embalmers, 

"■ R.R.O. 1960, Reg. 72, s. 20(2). 



Chapter 83 1195 

Nurses, Optometry, Pharmacy, Professional Engineers, Psy- 
chologists Registration and Veterinarians Acts, no provision 
is made entitling the member complained of to be represented 
by coimsel at the disciplinary hearing. This right should be 
recognized in all the statutes. There is justification for the 
provision in certain of the Acts— Chiropody, and Drugless 
Practitioners— that the member may be represented eitlier by 
counsel or an agent, 

SANCTIONS AVAILABLE 

Only the Dentistiy, Law Society, Medical, Optometry, 
Professional Engineers and Surveyors Acts provide the power 
to impose a lesser sanction than suspension of the right to 
practise. In each of these statutes, the power to impose a 
reprimand is also provided. Under the Dentistry Act, a fine 
may be imposed. In all other cases, except the Public Account- 
ancy Act, the only sanctions available to the disciplinary body 
are suspension and cancellation of the right to practise. In 
the Public Accountancy Act, the only sanction available is 
cancellation of the right to practise. This is unsatisfactory. 
Unless the disciplinary body has power to impose a lesser 
penalty than suspension of the right to practice, it is likely that 
one of two undesirable results will follow. Either the profes- 
sional body will refuse to take disciplinary action against 
practitioners who have committed minor offences, which will 
be a dereliction of the duty owed to the public to maintain 
high professional standards; or the professional body will take 
action in all cases and thus produce a situation in which the 
sanctions imposed may be out of all proportion to the offence 
committed, which may be grossly unfair to the individual 
practitioner involved. 

We recommend that all disciplinary bodies have a full 
range of sanctions made available to them, ranging from rep- 
rimand to revocation of the right to practise, except the right 
to impose fines as is given under the Dentistry Act. We do 
not think any self-governing body exercising judicial powders 
should have power to impose fines, especially ^vhen the fines 
are paid to the treasury of the body. 



1196 Procedure Before Disciplinary Bodies 

COSTS 

Except in a few instances, no provisions are found in the 
statutes of the self-governing bodies concerning the payment 
of costs of disciplinary hearings. In those cases where the 
subject is referred to, it is not dealt with in any uniform 
manner. Under the Dental Technicians Act, costs up to 
$100 may be awarded against a member who is found guilty 
at a disciplinary hearing. Under the Dentistry Act, costs may 
be awarded against a member where the board directs the 
certificate of licence of the member to be suspended or can- 
celled, ", . . [A]fter taxation of such costs by the taxing officer 
of the Supreme Court at Toronto, execution may issue out of 
the Supreme Court for the recovery thereof in like manner as 
upon a judgment in an action in that court. "^ "The costs to be 
taxed and allowed against a member, including the costs of 
appeal, if any, shall as far as practicable be the same or the like 
costs as in an action in the Supreme Court, and the taxing 
officer may also allow such fees and disbursements for work 
done or proceedings taken before notice of complaint as he 
deems just."^ 

Under the Medical Act, the costs of the disciplinary hear- 
ing may include the costs of reporting and transcribing the 
evidence. The scale of costs is not set out in the statute. Like 
the Dentistry Act, pro\ision is made that an execution may 
issue out of the Supreme Court upon the taxing officer's cer- 
tificate. The two last-mentioned statutes are the only ones 
that provide for a judgment for costs having all the effect of 
a judgment rendered in the Supreme Court. 

The Medical Act^ provides that if the member wishes to 
appeal he must pay for a transcript of the hearing, and if he 
does not do so his appeal is deemed to have been abandoned. 
If, on the other hand, the council or two members of the 
council appeal from the decision of the disclipinary body, no 
charge is made for the transcript. The anomalous result is 
that the member who has been subjected to disciplinary 
proceedings by the Council of the College of Physicians and 

^Dentistry Act, R.S.O. 1960, c. 91, s. 25(20). 
*Ibid., s. 25(21). 

*R.S.O. 1960, c. 234, s. 39(1), as re-enacted by Ont. 1966, c. 85, s. 5(1); and 
s. 41, as re-enacted by Ont. 1966, c. 85, s. 7. 



Chapter 83 1197 

Surgeons may be required to pay twice for the costs of re- 
porting and transcribing the e\'idence at the hearing, and his 
failure to do so may mean the taking away of all his rights 
of appeal. Provisions substantially similar to those in the 
Medical Act are to be found in the Pharmacy Act/' 

The po^ver to award costs is in the nature of a judgment. 
We think it should only be exercised by judges. It is not a 
power that should be conferred on lay bodies of the nature 
we are discussing. The cost of exercising disciplinary powers 
is an incident of self-government which should be borne by 
the body as a whole. In no case should a lay body have power 
to make an order for costs enforcible as a judgment of the 
Supreme Court. All such powers as to costs should be 
repealed. 

On the other hand, each body should have power if 
necessary to make an award from its funds to reimburse a 
member of the body for costs incurred through unwarranted 
disciplinar)' action taken against him. Such power is now 
conferred under the Dentistry Act,^ but it is limited to cases 
where a complaint is found to be frivolous or vexatious. 

PUBLIC HEARINGS 

The matter of whether hearings with respect to admission 
or discipline should be in public has given us much concern. 
We recommended^ that the hearing held by self-governing 
professional bodies, "involving professional capacity or repu- 
tation", be an exception to the rule that hearings of a tribunal 
should be in public. 

Only three statutes conferring power on self-governing 
bodies (the Ophthalmic Dispensers Act, the Optometry Act 
and the Radiological Technicians Act) require public hear- 
ings. The Franks Committee was of the opinion that "if the 
adjudicating bodies, whether courts or tribunals, are to in- 
spire that confidence in the administration of justice which 
is a condition of civil liberty they should, in general, sit in 
public".^ The proceedings of the disciplinary committee of 

'R.S.O. 1960, c. 295, s. 29(7), as re-enacted bv Ont. 1966, c. 115. s. 6(2). 

"R.S.O. 1960, c. 91, s. 25(19). 

'Chapter 14, p. 214 supra. 

*The Franks Committee Report, Cmnd. 218, para. 77. 



1198 Procedure Before Disciplinary Bodies 

the General Medical Council of the United Kingdom must 
be held in public, except where in the interests of justice 
or for any other special reason, it appears to the commit- 
tee that the public should be excluded from any proceedings 
or any part thereof. In such case the committee may direct 
that the public should be so excluded, but such direction will 
not apply to the announcement of any decision of the com- 
mittee.^ This provision must be read in conjunction with a 
procedure in the nature of a preliminary inquiry which is 
not held in public. This inquiry is held for the purpose of 
deciding whether a case has been made out which would war- 
rant a hearing before the full committee. The purpose of 
these inquiries is to sift out frivolous and vexatious complaints. 
After careful consideration we have come to the conclu- 
sion that the rule set out in Chapter 14 is the correct one to 
be applied to those self-governing bodies whose members have 
been required to spend many years acquiring an education to 
fit them especially to become members of a profession. The 
fact that a member of a profession such as the medical profes- 
sion is charged and tried publicly before a discipline com- 
mitte is sufficient to destroy his professional career, no matter 
what the outcome of the trial may be. No one who has built 
up a professional practice can ever be anonymous to his 
patients or clients. We think that such cases are very different 
from a trial of civil or criminal cases where a public trial is 
a safeguard to the accused. However, as we said in Chapter 
14, the person against whom a charge is made should in all 
cases have the right to a public hearing if he so requests. 

EVIDENCE 

In only one of the statutes we have been discussing is 
there any reference to the kind of evidence that is admissible 
at a disciplinary hearing. The Medical Act of Ontario pro- 
vides: 

"38. (1) Any person who would be a competent and compell- 
able witness at the trial of a civil action in Ontario is a com- 
petent and compellable ^vitncss at a hearing of the discipline 
committee, and the evidence adduced thereat shall be Sfov- 



•General Medical Council Disciplinary Committee (Procedure) Rules, 1958, 
Rule 42(2)(3). 



Chapter S3 1199 

trncd by The Evidence Act and the rules of i\ idciK ( in ( i\ il 
proceedings in Ontario, except that, 

(a) where any evidence is tendered that woidd not be 
admissible as such at the trial of a civil action in Ontario, 
the committee may receive such evidence if it is satisfied 
that its duty of making due inquiry into the case before it 
makes its reception desirable; and 

(b) any letter, statement, prescription, certificate, record 
or other docinnent purporting to be signed by a registered 
medical practitioner and any account for professional serv- 
ices that is on an account form bearing his name is prima 
facie evidence that the document was signed or, in the 
case of an accoinit, was authorized by him, and is prima 
facie evidence of the statements contained in the document 
or account. "^*^ 

It is difficult to know what subclause (a) means. It w^ould 
appear to be an exception that makes the main provision 
meaningless. 

In view of the consequences that may flow from discip- 
linary action, we think that the rules of evidence applicable 
in civil cases should apply to discplinary hearings. On the 
other hand, the rule set out in Chapter 14^^— a tribunal should 
have a discretion to ascertain relevant facts by such standards 
of proof commonly relied on by reasonable and prudent men in 
the conduct of their ow^n affairs— should apply to a hearing W'ith 
respect to admission to the profession. Proof of educational 
qualifications and experience abroad should be facilitated. 

STANDARD OF PROOF 

We think it unwise to attempt to define by statute the 
standard of proof on which a disciplinary body may act. The 
provisions of section 38 of the Medical Act appear to have 
created some confusion with respect to the standard of proof 
applicable in disciplinary matters in the medical profession, 
as distinct from other self-governing bodies. 

In Re Glassman and Council of the College of Physicians 
and Surgeons, Schroeder, J. A. held that by virtue of this sec- 
tion, "... the burden of proof cast upon the college is to 

'°R.S.O. 1960, c. 234, s. 38(1), as re-enacted by Ont. 1962-63, c. 80, s. 2, as 

amended by Ont. 1966, c. 85, s. 4. 
"See p. 216 supra. 



1200 Procedure Before Disciplinary Bodies 

establish the guilt charged against a practitioner by a fair and 
reasonable preponderance of credible testimony, the tribunal 
of fact being entitled to act upon a balance of probabilities. 
To say that the college must prove its case does not imply 
that it must demonstrate its case."^^ 

In Hynes v. Swartz,^^ Masten, J. A., in dealing with a 
case under the Architects Act, said: "Considering the penal 
nature of the proceeding, I am of the opinion that the appel- 
lant is entitled to the benefit of any doubt which may arise 
upon the evidence." The learned judge then went on to apply 
this principle and held that there was not sufficient proof of 
an intentional delinquency, but held the member to be negli- 
gent and reduced the penalty from suspension to a reprimand. 

The risk of attempting to define standards of proof in 
statutory language is demonstrated by reference to certain 
judgments. In Rex v. Suminers,'^'^ Lord Goddard, in referring 
to the expression "beyond a reasonable doubt" as applied to 
a criminal case, said: 

"I have never yet heard any court give a real definition of 
what is a 'reasonable doubt', and it would be very much bet- 
ter if that expression was not used. Whenever a court at- 
tempts to explain what is meant by it, the explanation tends 
to result in confusion rather than clarity. . . . The jury should 
be told that it is not for the prisoner to prove his innocence, 
but for the prosecution to prove his guilt, and that it is their 
duty to regard the evidence and see if it satisfies them so that 
they can feel sure, when they give their verdict, that it is a 
right one." 

In Regina v. Hepworth and Fearnley,^^ Lord Goddard 
explained the above passage and pointed out again the diffi- 
culty of laying down a formula to define the term "reasonable 
doubt". 

In Smith v. Smith,^^ the matter of standards of proof in 
civil actions was discussed at some length. The discussion was 
provoked by the conflict in judicial decisions concerning the 
standard of proof required in a divorce case. Locke, J. rejected 

"[1966] 2 O.R. 81, 92. 
"[1938] O.R. 77, 79. 
^*[1952] 1 All E.R. 1059, 1060. 
"[1955] 2 Q.B. 600. 
"[1952] 2S.C.R. 312. 



Chapter 83 1201 

the argument that the standard should be proof "beyond a 
reasonable doubt", and concluded: "The nature of the proof 
required is, in my opinion, the same as it is in other civil 
actions. If the court is not 'satisfied' in any civil action of the 
plaintiff's right to recover, the action should fail".^'^ This 
statement was subject to the comment that no question affect- 
ing the legitimacy of offspring arose. 

Two things are to be noted: the language used by the 
learned judge is very close to the standard as defined by Lord 
Goddard for criminal cases. The standard "satisfied" is used in 
each case. Words are often poor vehicles for the communi- 
cation of ideas. In addition, the learned judge quite clearly 
indicates that there is a higher standard of proof required 
where the legitimacy of offspring is in question. 

Rand, J. and Cartwright, J. clearly stated principles that 
should apply to the cases with which we are concerned. Rand, 
J. said: 

"There is not, in civil cases, as in criminal prosecutions, a 
precise formula for such standard; proof 'beyond a reason- 
able doubt', itself, in fact, an admonition and a warning of 
the serious nature of the proceeding which society is under- 
taking, has no prescribed civil counterpart; and we are not 
called upon to attempt any such formulation."^^ 

Cartwright, J. quoted a passage from an illuminating 
judgment of Sir Owen Dixon, Chief Justice of Australia, in 
which he said in part: 

" '. . . Except upon criminal issues to be proved by prosecu- 
tion, it is enough that the affirmative of an allegation is made 
out to the reasonable satisfaction of the tribunal. But reason- 
able satisfaction is not a state of mind that is attained or 
established independently of the nature and consequence of 
the fact or facts to be proved. . . .' "^** 

On a disciplinary charge there may be a wide variation 
in the standard of proof that may be required, dependent on 
the elements of the case, the nature of the charge and the 
results that may flow from a finding of guilt. This is recog- 
nized throughout the civil law. The standard of proof to 

"/&/d.. 330. 
'Hhid., 331. 
'"'Ibid., 332. 



1202 Procedure Before Disciplinary Bodies 

establish negligence or to justify an apportionment of negli- 
gence, is very different from the standard required to establish 
illegitimacy. 

In disciplinary cases it is sufficient to say that where a 
finding of guilt warrants disqualification from the practice of 
a profession, the standard of proof should be very high and 
convincing, while a standard to be applied where there is a 
finding of incompetence in one of the self-governing occupa- 
tions is quite a different matter. No definite rule should be 
laid down. The question always should be: Is the proof suf- 
ficient to satisfy reasonable men, exercising prudence and 
caution in the particular circumstances of each case, that the 
decision to exercise disciplinary powers is a just decision? 

RIGHT OF APPEAL FROM DECISION 
ON A DISCIPLINARY HEARING 

No provision for appeal is foinid in the Chiropody Act, 
the Dental Technicians Act, the Dentistry Act and the regu- 
lations concerning dental hygienists, the Drugless Practition- 
ers Act (either under the general regulations or in any of the 
regulations appertaining to any of the specific classifications 
of drugless practitioners), or in the Law Society Act. Where 
appeals are provided there is no uniformity, either in the 
practice to be adopted with respect to the appeal or in the 
selection of the forum to which the appeal should go. 

EFFECT OF SUSPENSION OR CANCELLATION OF 
RIGHT TO PRACTISE PENDING APPEAL 

Most of the Acts are silent on the right to practice pend- 
ing an appeal and there is no uniformity of practice where the 
point is covered. Under the Architects Act, the Professional 
Engineers Act and Veterinarians Act, the member may prac- 
tice pending the disposition of his appeal, or until the time 
for appeal has passed; but under the Surveyors Act, the mem- 
ber whose right to practise has been suspended or cancelled, 
cannot continue to practice pending the disposition of his 
appeal, except -where an order has been made by a judge of 
the Supreme Court permitting him to practice. An anomalous 
position is found under the Dentistry Act, which has no 



Chapter S3 1203 

express provision on this point; but if the discipline commit- 
tee fa\oiirs suspension for a period longer than twelve months 
and so reports to the Board. tlie licence of the niemljcr may be 
suspended by the discipline committee pending the Board's 
suspension. In other words, a sanction may be effective before 
it is ultimately imposed. Under the Medical Act, suspension 
or cancellation of a licence is not effective until the appeal has 
been disposed of, or until the time for appeal is passed, unless 
the penalty was imposed for incompetence. This pro\'ision 
combines the protection of the interests of the public with 
fairness to the members concerned. 

We reconnncnd that a similar provision be incorporated 
in all the Acts respecting self-governing bodies. 

APPLICATION OF STATUTORY POWERS 
PROCEDURE ACT 

Appendix E to this Section^*^ is a chart showing a compre- 
hensive analysis of the present disciplinary procedure set out 
in the respecti\'e statutes and regulations relating to self-gov- 
erning bodies. 

The statu to 17 disciplinary powers of self-governing bodies 
afford a classic example of the urgent need of a Statutory 
Powers Procedure Act establishing minimum rules for all tri- 
bunals and a rules committee to formulate additional mini- 
nunn rules of procedure applying to judicial tribunals.-^ 

When such an Act is passed and appropriate rules apply- 
ing to disciplinary tribunals are promulgated most of the 
criticisms we have raised with respect to the disciplinary 
powers of self-governing bodies will be met. 

^''Seep. 122% injra. 

"'See Chapter 14, pp. 212 ff. supra. 



CHAPTER 84 

Control of Ancillary Occupations 

DENTAL TECHNICIANS ACT AND 
RADIOLOGICAL TECHNICIANS ACT 

Ihese Acts^ require special reference. Regulations passed 
under them must be submitted to the Royal College of Dental 
Surgeons and the Council of the College of Physicians and 
Surgeons respectively, thirty days before being submitted to 
the Lieutenant Governor in Council for approval. Any sub- 
missions on the part of these bodies must accompany the sub- 
mission of the regulations to the Lieutenant Governor in 
Council. The object of these provisions is to give the Royal 
College of Dental Surgeons and the Council of the College 
of Physicians and Surgeons a sort of supervisory power over 
the two self-governing bodies. 

While it may be very desirable that this be done in order 
to maintain the standards that the supervising body may 
require, it gives to the supervising body an opportunity to 
protect its competitive interest as opposed to the interests of 
the members of the public. We think that the public interest 
would be better protected by the adoption of the principles 
followed under the British Medical Act where the public is 
given representation on the governing body.^ 

»R.S.O. 1960, c. 90; Ont. 1962-63, c. 122, respectively. 
"See p. 1166 supra. 

1204 



Chapter 84 1205 

DENTAL HYGIENISTS AND REGISTERED 
NURSING ASSISTANTS 

By section 12(a) of the Dentistry AcL^ power is given to 
the Board of Directors of the Royal College of Dental Surgeons 
of Ontario to provide for "the establishment, development, 
regulation and control of an ancillary body known as dental 
hygienists". 

By section 6(j) of the Nurses Act,^ the Council of the 
College of Nurses of Ontario is given power, subject to the 
approval of the Lieutenant Governor in Council, to make 
regulations "prescribing the fees for examinations, registration 
and renewal of registration of , . . nursing assistants". By sec- 
tion 6(k) the Council may make regulations "governing the 
disciplinary powers of the Council or a committee of the Coun- 
cil with respect to . . . registered nursing assistants, including 
the power to suspend or cancel their registration". 

The powers provided by these Acts have been exercised^ 
and in neither case are the regulations satisfactoi'y. 

In any event, the situations created with respect to dental 
hygienists and nursing assistants are quite anomalous and 
entirely unjustifiable. These are not cases of delegation of 
power to self-governing bodies to control their own affairs but 
rather of delegation of legislative and judicial powers to regu- 
late and control the affairs of others who have no part in 
making the rules by w^hich they are governed. 

We recommend that these powers be abrogated. One 
would have thought that the normal, commercial powers of 
hiring and dismissing which dentists and hospitals have would 
provide sufficient "quality control". If, however, some form of 
regulation is required, then we think that these are clearly 
cases for provincial licensing boards. We can see no justifica- 
tion for the present situations which are thoroughly un- 
democratic. 



''R.S.O. I960, c. 91. 
^Ont. 1961-62, c. 90. 

"See R.R.O. 1960, Reg. 74 (Dentistry); O. Reg. 312/62, ss. 8, 9, 12, 13, 19 and 
20 (Nurses). 



CHAPTER 85 

Miscellaneous Provisions 



DISPOSITION OF FINES IMPOSED FOR 
BREACHES OF SELF-GOVERNING STATUTES 

i\ll the statutes we have been considering provide for 
penalties that may be imposed by the court for offences under 
the respective Acts, e.g., practising medicine without being 
registered under the Act. Under eleven of the relevant statutes 
it is provided that the fines recovered as a result of prosecu- 
tions under the Act are to be paid to the governing body of 
the profession or occupation concerned.^ 

The self-governing statutes, being public acts, are passed 
for the benefit of the public. It is difficult to see on what prin- 
ciple the fines imposed for breaches of these statutes should 
not be paid into the public treasury. The public provides the 
courts and all the facilities for the prosecution of the offences. 
It may be that these bodies engage their own counsel and for 
their own purposes conduct private prosecutions. This may 
be permissible, but it is a practice that ought not to be en- 
couraged in any case, and it is particularly undesirable that 
it should be encouraged by statutory provisions that the fines 
imposed by the court should go to the private body. In no 
case should a private prosecutor ha\'e a monetary interest in 
the result of a prosecution. Such provision takes from the 

^Dental Technicians, Dentistry, Medical, Ophthalmic Dispensers, Optometry, 
Pharmacy, Professional Engineers, Psychologists Registration, Radiological 
Technicians, Surveyors, and Veterinarians Acts, contain this provision. No 
sLich pro\ision appears in the Ardiitecis Act, tlie Barristers Act, the Chirop- 
ody Act, the Drugless Practitioners Act, the Embalmers and Funeral Directors 
Act, the Nurses Act, the Public Accountancy Act or the Solicitors Act. 

1206 



Chapter 55 1207 

administration ol ihc (liniinal law that clciiicni ol impar- 
tiality that is essential to respect for its administration. It is 
most difficult to sec why fines, for example, imposed for 
breaches of the Barristers or the Solicitors or the Public Ac- 
countancy Acts should be payable to the j:)ublic treasury, while 
fines, for example, imposed for breaclies of the Medical Act 
or the Dentistry Act or the Surveyors Act should be payable 
to the respective bodies. 

For reasons that we have already expressed with respect 
to the power to impose fines, we recommend that in all cases 
fines for breaches of the self-go\erning statutes should be paid 
into the public treasury. 

LIMITATION PERIODS FOR 
BRINGING ACTIONS 

Limitation periods for bringing actions are set out in six 
of the enumerated statutes. 

The Dentistry Act— six months. - 

The Embalmers and Funeral Directors Act— tliree months.^ 

The Medical Act— one year.^ 

The Pharmacy Act— six months.^ 

The Radiological Technicians Act— twelve months.^ 

The Veterinarians Act— six months." 

The language used in defining the period of limitation is 
not the same throughout the relevant statutes. In the Den- 
tistry Act, the section reads: 

"29. A duly registered member of the College is not liable to 
an action for negligence or malpractice by reason of profes- 
sional services requested or rendered unless the action is com- 
menced within six months from the date ^vhen the matter 
complained of terminated."^ 

In the Embalmers and Funeral Directors Act, the period 
of limitation commences to run from "the date when in the 

^'R.S.O. 1960, c. 91, s. 29. 
"R.S.O. 1960, c. 120, s. 21. 
*R.S.O. 1960, c. 234, s. 43. 
■^R.S.O. 1960, c. 295, s. 57. 
"Ont. 1962-63, c. 122, s. 13. 
'R.S.O. 1960, c. 416, s. 18. 
^R.S.O. 1960, c. 91, s. 29. 



1208 Miscellaneous Provisions 

matter complained of, such professional services terminated".® 
A similar provision is found in the Medical Act and the Radio- 
logical Technicians Act.^*^ In the Pharmacy Act, the limitation 
period commences to run "from the date the professional serv- 
ices were rendered". ^^ Under the Veterinarians Act, the action 
must be commenced "within six months after the matter com- 
plained of terminated".^- It is hard to find any principle on 
which these limitation periods are based. 

Fixing the limitation period is not legislation for the 
protection of the public, but legislation for the protection of 
the members of the relevant profession or occupation. The 
only principle on which a limitation period can be supported 
is that the party in whose favour it operates requires protec- 
tion against stale claims made after evidence may have dis- 
appeared. We can see no reason why a claim against an 
embalmer should be banned in three months, nor why a claim 
against a dentist or pharmacist or veterinarian should be 
barred in six months. 

In defining when the limitation period should commence 
to run, clear language should be used. Great hardship may 
result where the party who has suffered from malpractice may 
be unable to bring an action within the defined period. The 
general subject of limitation of actions is one that should re- 
ceive attention as it may affect all rights of action. However, 
for the purposes of considering the provisions of the Acts 
dealt with in this Section, we recommend: 

(1) No limitation period should be less than twelve months; 

(2) The court should have power to extend the time for 
bringing an action either before or after the period has 
expired, where it is satisfied that an extension of time will 
advance the cause of justice; 

(3) Uniform language should be used so that the commence- 
ment of the limitation period will be defined and remain 
the same in all cases. ^^ 



"R.S.O. 1960, c. 120, s. 21. 
"Ont. 1962-63, c. 122, s. 13. 
^R.S.O. 1960, c. 295, s. 57. 
^R.S.O. 1960. c. 416, s. 18. 

*The broad subject of statutory limitation on causes of action is now being 
considered by the Ontario Law Reform Commission. 



Recommendations: Self-Governing Bodies 1209 

SUMMARY OF RECOMMENDATIONS 

1. The provisions of a Statutory Powers Procedure Act, 
recommended in Chapter 14, should apply to the exercise 
of all judicial powers conferred under the respective Acts 
relating to self-governing professions and occupations. 

2. The principles of the British Medical Act, 1956, should 
be followed by making provision for the appointment of 
lay members to each of the governing bodies of the self- 
governing professions and occupations, 

3. The power of self-government should not be extended 
beyond the present limitations, unless it is clearly estab- 
lished that the public interest demands it and that the 
public interest could not be adequately safeguarded by 
other means. 

4. Citizenship should not be a condition precedent to ad- 
mission to any self-governing body. 

5. Only British subjects should be qualified to hold office in 
any self-go\erning body. 

6. Members of a disciplinary body should be prohibited 
from sitting on an appeal from decisions in which they 
have participated. 

7. Each disciplinary body should have as a member a lawyer 
of ten years standing who should be appointed by the 
Lieutenant Governor in Council. (This recommendation 
is not applicable to the Law Society of Upper Canada.) 

8. The term "professional misconduct" should be the term 
used in all statutes to describe conduct of a nature to 
warrant disciplinary action. 

9. Each self-governing body should prepare a code of ethics, 
laying down standards of conduct designed primarily for 
the protection of the public. This code should be avail- 
able to the public and circulated to members of the body 
to which it applies. 

10. Where disciplinary proceedings have been instituted 
against a member, he should have at least ten days notice 
of a heariniJ^. The notice of the hearins: should be served 
personally. If personal service cannot be effected, service 



1210 Recommendations: Self-Governi7ig Bodies 

by registered mail, addressed to the member at the last 
address shown on the register should be permitted. 

1 1 . The disiplinary body should have power to proceed with 
the hearing where the member involved has been duly 
notified but has not attended. 

12. Disciplinary hearings should not be held in public unless 
the member involved so requests. 

13. The rules of evidence applicable to civil cases should 
apply to disciplinary hearings. 

] 4. On a hearing concerning admission, the tribunal should 
have discretion to ascertain relevant facts by such stan- 
dards of proof as are commonly relied on by reasonable 
and prudent men in the conduct of their own affairs. No 
defined standards of proof applicable to all cases should 
be laid down. 

15. A member against whom disciplinary action has been 
taken should have a statutory right to be represented 
either by counsel or an agent. 

16. Disciplinary bodies should have a right to impose a full 
range of sanctions, from reprimand to revocation of 
licence to practice. 

17. No disciplinary body should have the right to impose 
fines. 

1 8. In no case should the fines imposed by a court for breaches 
of the relevant statutes be payable to the self-governing 
bodies. All fines should be payable to the Province. 

19. The disciplinary bodies should not have power to award 
costs against a member of the body. In no case should a 
mandatory award by a disciplinary body be enforceable 
by an execution issued out of a court of the Province. 

20. Self-governing bodies should have power to reimburse 
a member for costs incurred through unwarranted disci- 
plinary action against him. 

21 . A member who has been the subject of disciplinary action 
should not be suspended from continuing to practice 
pending an appeal, unless the charge is for incompetence. 



Recomiucjidatioiis: Selj-Governiu(j^ Bodies 1211 

22. The self-governing bodies shonld be ic(^nired to hold a 
formal hearing before an application for registration is 
rejected, 

28. There should be a right of appeal from all disciplinai^y 
decisions, and decisions refusing admission. The appeal 
should be to the Appellate Division of the High Court of 
Justice, in accordance with recommendations made in 
Chapter 44. 

24. Uniform terminology should be adopted with respect to 
regulations, rules and by-laws. 

25. All matters relating to admission and discipline should 
be dealt with by regulations made by the Lieutenant 
Ciovernor in Council. 

26. By-laws relating to administrative and domestic affairs of 
a self-governing body should be made by the body. 

27. No self-governing body should have statutory control 
over others who are not members of the body. If em- 
ployees of members of a self-governing body are required 
in the public interest to be controlled, this should be 
done by some form of licensing and not by the conferring 
of legislaLi\e and judicial powers exercisable over them. 

28. A Model Act should be drawn which should form the 
basis of all self-go\'eniing Acts so that there might be some 
uniformity in the delegation of the relevant and judicial 
powers. 

29. No limitation period should be for less than twelve 
months. 

30. The court should have power to grant leave in proper 
cases to bring an action, notwithstanding that tlic limita- 
tion period has expired. 

•S 1 . Uniform language should be used in defining a limita- 
tion period. 



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Apijendix C 1218A 



3. HEARING 
REQUIRED 



4. APPEAL 
FROM 
RKFLSAL 
TO ADMIi' 



1. ARCHITEC ^'" Pi'ovision Nop, 



2. CHIROPOI No provision 



3. DENTAL ^° provision 

TECHNICI 



4. DENTISTR ^° provision 



DENTISTF N° provision 
(Dental Hyj 



5. DRUGLES ^^^ provision 
PRACTITI 

(General) 



1. DRUGLES N° provision 
PRACTIT] 
(Chiropraci 



). DRUGLEJ N° provision 
PRACTIT 

(Masseurs) 



^o provision 



No 



provision 



No provision 



No provision 



No 



provision 



No provision 



No 



provision 



APPENDIX C 

Admission Requirements: Ontario Applicants 



Al)pendix C 11^ ISA 



4a. DENTISTRY 
{Denial Hygicnists) 



5. DRUGLESS 
PRACTITIONERS; 
(General) 



I 'HUG LESS 

PRACTITIONERS; 

(Chiropractors) 



•DRUGLESS 

PRACTITIONERS: 

(Masseurs) 



1. EDUCATIONAL 



Act contains statement 
"has passed prescribed 
exam of the registration 
Bd." No details of exam 



Regs. — No details of 
content of exam set by 
Board 



By-laws of College 



Regs. 



b. Requirements 



ourse U. of 
equivalent. 



Architectui 

Prescribed 
Registration Bd. or 
emption therefrom 

Grade 13 in 9 papers 
eluding physics, cht 
hot., zoology; 4-yr. coi 
in chiropody at " 
proved" school. E: 
tion conducted by Bd. 
{details provided) 

Grade 12 Ont. or equiva- 
lent; examination set by 
Board. 



Ontario Grade 12; 2 yrs. 
of Arts and Science in 
recognised University in- 
cluding English, chem. 
physics, botany; 4 yrs. in 
Fac. of Dent. U. of T. or 
its equivalent; examina- 
tion set by Board 

Grade 13 in 9 papers (re- 
quired subjects set out) 
for admission to two-year 
course of study (( 
lura set out) — ej 
Board 



4 yr. course at approved 
school or college (curri- 
culum set out); exam set 
by Board (subjects set 
out). Standards to be at- 
tained in exam set out 

Ont. Secondary School 
graduation or equivalent; 
4 yr. course in training 
school in Ontario or 
U.S.A. (curriculum set 
out); exam set by Board 
(subjects set out) 

Ont. Intermediate Cert, 
(grades 9 & 10); Gradua- 
tion from school for mas- 
seurs (curriculum set out) ; 
exam set by Board (sub- 
ject set out) ^^_ 



Apprenticeship 



Must ha 






completed at 
;hs clinical ex- 
erience in chiropody 
nder supervision of reg- 
itered chiropodist 



Must have served in On- 
tario as dental technician 
in employment of dentist 
or dental tech. for at least 
4 years 

NO 



2. NON-EDUCATIONAL 



, Good Moral Character b. Age 



Board must be satisfied 
applicant a "person of 
integrity and good moral 
character" 



Must have "character" to 
become and act as dental 
hygienist 



Character refer 
required 



Required 






Must be Br. Subj. or have 
taken oath of allegiance 
and declared intention of 
becoming Br. Subj. 



No provision BUT oi 
application form as candi 
date for examination, re 
quired to state whethc: 
Br. Subj. 



Must be Canadian citi; 
or satisfy Board of 

Canadian citizen 



Must be Canadian citizen, 
or Br. Subj. or prove to 
satisfaction of Bd., inten- 
tion to apply for Canadian 
citizenship within reason- 
able time of becoming 
eligible to do so 



No requii 



No reqi 



i) Domiciled in On- 



b) No corpora 
membership 



Examination fee of 
S75; registration fee 
of S75 



Exam, fee of 8100. 
Regn. fee of SIOO. 
Board may accept 
exams of Fac. of 
Dent. U. of T. i.e., 
U. of T. grads not 

set by Board 



Ml. 



must possess apti- 
tude, capacity and 
character to become 
and act as dental 
hygienist 



Regn. fee of $75. 
Exam fee of SIO per 
paper written up to 
maximum of S50 



Regn. fee; 840. 
Exam fee: SIO per 
paper up to max. 
ofS50 



3. HE.\RING 
REQUIRED 



4. APPEAL 
FROM 
REFL'SAL 
TO ADMIT 



No provisic 



No provis 



No provision 



No provis 



• 



Appendix C 1218B 



EARING 
EQUIRED 



DRUGL provision 

PRACTI 

(Osteopa 



4. APPEAL 
FROM 
REFUSAL 
TO ADMIT 



No provision 



>RUGL provision 

RACTl 

Physiotl: 



iMBAE^ay, after a 
^D Fl? refuse to 
ilRECJert. of quali- 

1, licence or 
for any rea- 

jr which if 

d, it could be 

d 

,AW SC provision 



No provision 



No provision 



No provision 



4EDIC provision 



JURSE provision 



DPHTK provision 
DISPE^ 



OPTON provision 



No provision 



S. 11 (Act) provides 
appeal to judge of 
Supreme Court, if 
council "refuses or 
neglects to register 
a person" — Judge 
may direct council 
to grant registration 

If application for 
registration refused 
by registrar, Board 
may direct neces- 
sary entry be made 
in register 

No provision 



DRUGLESS 
PRACTITIONERS: 
; Osteopaths) 



Sd DRUGLESS 

PRACTITIONERS: 

(Physiolherapisu) 



EMBALMERS 
AND FUNERAL 
DIRECTORS 



7. LAW SOCIETY 



Admission Requirements: Ontario Applicsims—( Cor^tinued) 



Appendix C 121SB 



OPHTHALMIC 
DISPENSERS 



OPTOMETRY 



1. EDUCATIONAL 



Where set out 



Regs. 



Act and Regs. 



Rules & Regs. 



b. Reqi 



Ont. secondary school 
graduation or equivalent; 
2 yrs. college or univer- 
sity inc. physics, chcm. 
(organic & inorganic) Bi- 
ology, English; 4 yr. 
course in osteopathy 
school or coll. (curricu- 
lum set out); exam set by 
Board (subjs. given) 

Grade 13 in 9 papers; 
graduation from physio, 
school or college (curricu- 
lum set out); 1000 hrs. 
clinical experience; exam 
set by Board (subjects set 
out) 

Ontario Secondary School 
graduation or equivalent; 
graduation from approved 
school (curriculum set 
out); apprenticeship; 
exam set by Board 



Grade 13; 2 yrs. college 
or university; graduation 
from approved law course 
at approved university in 
Canada: articled clerk- 
ship; Bar Admission 
Course 



2 yrs. university pre-med; 
graduation from approved 
Faculty of Medicine in 
Canadian University; 1 
year internship; exam set 
by M.C.C. 

Course at school of nurs- 
ing (at least two year 
course, curriculum set 
out), High School gradu- 
ation requirements for ad- 
School set out; 
set by Council 



Course of study at ap- 
proved course of ophthal- 



available): 
by Board 



requi- 



tario Grade 13 

lent (subjec 

bed); course of in- 
College of op- 
tome try or equivalent 
(subjects set out); exam 
set by Board ^_^ 



Apprenticeship 



Require 1000 hrs. clinical 
experience and training 
under supervision of phy- 
siotherapist in hospital ap- 
proved under Pub. Hospi- 
tals Act 



2 yr. apprenticeship 



1 yr. articled clerkship 



1 yr. internship at ap- 
proved hospital in Canada 
or at U. S. hospital fully 
affiliated to university 



2. NON-EDUCATIONAL 



. Good Moral Character b. Age 



Practical training for 1 
yr. in Canada with an 
ophthalmic dispenser or 
optometrist 



Required 



No requirement 



Required 



Required 



Citizenship 



application form f 
-required to 
whether Br. subj. 



No requirement 



Exam fee: SIO per 
paper up to max. of 
S50. Regn. fee: S40 



Nor 



1 Act ( 



quirement 
in Rules BUT 
ristei-s Act, R.S.O. 1960, 
c.30, S.2 (barrister must 
be Br. subj.), and Soli- 
citors Act, R.S.O. 1960, 
c.378, s.l3(l)— must take 
oath of allegiance 

Require proof of landed 
immigrant status or of 
Canadian citizenship 



No requirement 



No requirement 



3. HEARING 
REQUIRED 



m fee: S5 per 
paper. Must submit 
doctor's report cer- 
tifying applicant in 
good health before 
admitted to School 
of Nursing 



Regis trationfee;S50 



Board may, after a 
hearing refuse to 
grant cert, of quali- 
fication, licence or 
permit for any i 
.son for which 
granted, it could be 
revoked 

No provision 



No pro vis ic 



4. APPEAL 
FROM 
REFUSAL 
TO ADMIT 



No provision 



No provision 



S.lI(Act) provides 
appeal to judge of 
Supreme Court, if 
council "refuses or 
neglects to register 
a person" — ^fudgc 
may direct council 
to grant registration 

If application for 
registration refused 
by registrar, Board 
may direct neces- 
sary entry be made 

No provision 









Appendix C 1218C 


=^ ^ 




4. APPEAL 





3. HEARING 


FROM 


1 


REQUIRED 


REFUSAL 
TO ADMIT 


. PHARMyi 


No provision 


If application for 
registration refused 
by registrar, Council 
may direct necessary 
entry be made in 








register 




ROFESSin 


No provision 


If council refuses to 




NGINE] 




register applicant, 
he may apply to 
judge of Supreme 
Court who, upon 
due cause shown, 
may direct council 
to grant registration 




SYCHO: 


Board may after a 


If Board refuses or 






hearing refuse to reg- 


neglects to register 






ister person on 


applicant, he may 






grounds which 


apply to judge of 






would justify sus- 


Supreme Court, 






pension or revoca- 


who upon due cause 






tion of registration 


shown may direct 






if granted 


Board to make 
registration 




UBLIC 


No provision 


Refusal to grant 




CCOU> 




licence must be 
communicated in 










writing. Right of 










appeal within 3 










months to judge of 










Supreme Court, 










who, upon due cause 








shown, may direct 








council to grant 








licence 




ADIOL" 


No provision 


No provision 




ECHNU 








QRVEYto 


No provision 


Appeal to Council 




in 




from Secretary- 
Treasurer's refusal 






to register 


V 


'ETERir 


On question whether 
appUcant is fit and 
proper person, must 
give applicant op- 
portunity to appear 
before Council be- 
fore deciding he is 
not 


No provision 



11 PHARMACY 



14, PSYCHOLOGISTS 



RADIOLOGICAL 
TECHNICIANS 



SURVEYORS 



VETERINARIANS 



Where set out 



Act and Regs. 



Act and Regs. 



Act and By-laws 



^^ Admission Requirements: Ontario AppUcanis-( Continued) 



Appendix C 



1. EDUCATIONAL 



b. Requirements 



B. Sc. in Pharmacy, U. 
of Toronto or other pre- 
scribed university; Ap- 
prenticeship 



At least 5 yrs. experience 
in engineering work. If 
applicant is graduate in 
branch of prof. eng. from 
recognized University, 
years spent at university 
(up to 4) count towards 
the required 5; exam set 
by Council 

Doctoral degree from edu- 
cational institution ap- 
proved by Board A.VD 
one year's acceptable ex- 
perience, plus exam set 
by Board 



Must be member of quali- 
fying body (Inst. C.A. 
Ont.) BUT no details of 
how membership ob- 
tained; OR member of 
Cert. Gen. A's of Ont. 
who has taken course of 
instruction and passed 
exam and had 3 years 
experience 



Ontario Secondary School 
graduation (inc. math & 
science or agricultural sci- 
ence); course of training 
for radiological techni- 
cians (syllabus set out); 
exam set by Board 

Intermediate exam (set 
by Board, subjects set out) 
— to take exam must have 
educational requirements 
for admission to civil engi- 
neering course at an On- 



Ur 



;ity; final 



set by Board (sub- 
jects set out) 

Degree in Veterinary Sci- 
ence from Ontario Vet. 
College or U. of Toronto 
or approved College or 
University; for persons 
other than grads of 
O.V.C, may be exam set 
by Council 



Apprenticeship 



apprentice- 



12 months 
ship (at least 
of which to be spent after 
obtaining B.Sc, Phar- 
macy); must have stand- 
ing in subjects required 
for admission to B.Sc. 
Pharm. (U. of Toronto) 

Semblc must have at least 
one year's experience 



One yecu- of "experience'' 
acceptable to the Board 



At least 2 years actual 
survey work as student to 
practising surveyor under 
a written instrument duly 
executed before 2 wit- 



2. NON-EDUCATIONAL 



Good Moral Character b. Ag( 



No requirement (s< 
quirements for non 
tario Applicants) 



Required 



Must produce satisfactory 
evidence of probity and 
sobriety 



fused if council decides 
ajla a hearing, that appli- 
cant not a fit and proper 
person to practise 



Citizenship 



No 



applicai 

bership 

quires statement of > 

ship 



forr 



No requirement BUT 
must take oath of al- 
legiance and oath of office 



Must be resident i 



Exam fee: SI 00 



Exam fee: 820 
Regn. fee: $12 



Must enter in 
bond to Crown 
sum of $1000 



HEARING 
REQUIRED 



No pr( 



Board may qfler a 
hearing refuse to reg- 
ister person on 
grounds which 
would justify sus- 
pension or revoca- 
tion of registration 
if granted 



On question whether 
applicant is fit and 
proper person, must 
applicant op- 
portunity to appear 
before Council be- 
fore deciding he is 



APPEAL 
FROM 
REFUSAL 
TO ADMIT 



If application for 
registration refused 
by registrar, Council 
may direct necessary 
entry be made in 
register 



If council refuses to 
register applicant, 
he may apply to 
judge of Supreme 
Court who, upon 
due cause shown, 
may direct council 
to grant registration 



If Board refuses or 
neglects to register 
applicant, he may 
apply to judge of 
Supreme Court, 
who upon due cause 
shown may direct 
Board to make 
registration 



months to judge of 
Supreme Court, 
who, upon due cause 
shown, may direct 



Appeal to Council 



Appendix D 1219 



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Appendix D 1227 



■« 3 c o ^ =crt,.y S2.S 
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APPENDIX E 

Sclf-Governing Bodies: Comparative Analysis of Procedure in Discipline 



2. Chiropody 



procedure Set Out 



Regs. 



A. Time of Notice No time specified. 
Notice required. 
Hearing not less 
than 14. not more 
than 21 days from 
receipt of 



Notice of meeting, 

copy of complaint; 
accused may 
submit evidence. 



At least 10 days 
between sending 

hearing. 



Details of alleged 
misconduct, 
nature of evidence 
in support of 
complaint, date, 
time, place of 



Reg,. 



4A. Dentistry 
(Re Dental 
Hygiousts) 

Regs 



Personal service at At IcMt 10 
least 10 days days' notice 

before date fixed of rocetiog of 

for hearing. discipline 

commiltee to 

be given to accused. 



Time and place o 
hearing, written 
statement of 
misconduct 
alleged, copy of 
any complaint in 
wntmg. 



Statement of 



No provision 



Druglcss 

Practitioners 
(General) 

Regs- 



No time specified 
—registered mail 
to address under 
which accused 
registered, stating 

of 



of 

Board. 



5.\. Dmglcss 

Practitioners 
(Chiropractors) 



5B. Druglcss 

(Masseurs) 
Re^ 



At least 10 dear 
da>-s between date 
of sending notice 
(registered mail) 
and date of hearing. 



Details of alleged 
misconduct, naturt 
of supporting 
evidence, date, 
time, place of 
hearing. 



At least 10 dear 
da\-s between date 
of sending notice 
(registered mail) 
and date of hearing. 



Details of alleged 
misconduct, nature 
of supporting 
evidence, date, 
time, place of 
hearing. 



5C. Druglcss 

Practitioners 
(Osteopaths) 

Regs. 



?D. Druglcss 

Practitioners 

therapists) 
Regs. 



At least 10 clear 

da>-s between 
sending notice 
(registered mail) 
and date of hearing- 



Details of alleged 
misconduct, nat\in 
of supporting 
cadence, date, 
time, place of 
hearing. 



At least 10 clear 
days betx^-cen 
sending notice 
(registered mail) 
and date of hearing. 



Details of alleged 
misconduct, nature 
of supporting 
evidence, dale, 
lime, place of 
hearing. 



Embalmcrs 
and Funeral 

Director? 



Act & Rules 



Not less than 
7 days before 
hearing — personal 

i-egislcrcd mail OR 
ad in newspaper 
wlieiT accused 

practices. 

Notification of 
fonniil comptaintt 

of hearing. 



Copy of charges 
made or state- 
ment of Subject 
matter of inquiry, 
time, place of 
hearing. 




absence, suspc 
or cancel his 
membership. 



Meanng may 

proceed, decision 
may be made in 
his absence. 



May be represented 
by counsel or 
agent. 



Ed. may proceed 



Q. Stenographic No pro 

or Electronic 
Recording 



S. Written 
decisions 
reasons 



No provision. 



No provision — 
merely "to attend 
and answer the 
complaint." 



No pro^'ision- 
No pro^Tiion. 



absence and 
accused not 
entitled to 
notice of futu 
proceedings. 



any party on 
praecific from 
Supreme Court. 



Ves Chairman 
or any member 
of Commiltee 
inav administer 
oatii. 

Kiilht provided. 
No pro^'ision. 
No provision. 



No rxprrs 
provision BVl 

transcript of 

•;v ma. 2S(2l). 

^^(22). 27(J). 

■'^•oexprai 

'^'^^ reference 
tn 1. 27(2). 



■^opxprcw 
P^^-isioo Bl'T 
jommiiiee required 
^oukerepon 



No provision. 

No provision. 
No provision. 
No provision. 
No pro\'ision. 
No provision. 

No provision. 
No prov'ision. 

No provision. 



No provision. 

No provision. 
(No express 
statement that 
accused entitled 
to attend.) 



No provision. 
No provision. 

No provision. 



No provision. 
No provision. 
No provision. 
No provision. 
No provision. 

No provision. 
No provision. 



No provision. 
No provision. 



No proxTsion. 
No provision. 



No provision. 



No provisic 



Hearing may Hearing may Hearing may 

proceed, decision proceed, decision proceed, dccisi< 

may be made in may be made in may be made i 

his absence. his absence. his absence. 



No provis 

No provis 
H 



tiearmg may 

proceed, decisioi 
may be made in 
his absence. 



No provisiotJ. 

No provision. 
No provision. 



May be represented May be represented May be represented May be represented No provision, 
by counsel or agent. by counsel or agent. by counsel or agent. by counsel or agent. 

No provision. No provision. No provision. 



No provision. 



No provision. 



No provision, 



No provision. 



No provision. 



Right provided. 
No provision. 
No provision. 
No provision. 
No provision. 

No provision. 
No provision. 



Right provided. No provision. 

No provision. No provision. 

No provision. No provision. 

No provision. No provision. 

ZVo provision. No provision. 



No provision. 
No provision. 



No provision. 
No provision. 



No provisi 



VV.1 Board has 
powen of 
commiuion under 
Public Inquiries 



No provision. Right provided. Right provided. Right provided. Right provided, ll.ii rinht t 



Discipline 
Committee may 
proceed in 
accused's absence. 



Right provided 



adjourn any 
investigation. 



Treasurer may 



with force of 
subpoena. 



No provision. 


Yes Doiird h^H 
powers of 

floinmimion under 
I'lihlir Inquirici 
An. 


\vH Ciiiiiii 
liiiH power to 

under oath. 


Right providrd. 


No provision. 


No provision 


No provision. 


No provision. 


No provision 


No provision. 


No provision. 


No provision 


No provision. 


No provision. 


Noprovi.,,,, 


No provision. 


rsio provision. 


No jji-ovision 


No provision. 


No prwision. 


No proviHion. 


Hearing ihaU l>c 
itcnogra^hically 


No provision. 


Evidence to b 
reduced to wr 
taken down ir 
shorthand or 
mechanically 
recorded. 


No provision. 


No proviiion. 


No express 





and 

wit 


„,.,y „l 
sulipoct 
Suprni 


a n< 
r Co 



a<lininistcrcd by 
member of 

Right provided. 

No piovixion. 

No provision. 

No provision. 

Iwi 
ofe 



Written decision- 
accused notified — 
no provision re 
reasons- 



No CKprCM 
provision BUT 
time for appeal 
runs from receipt 
of written notice 
of decision. 

Suipension or 



provision HU'I 
copy of c 



Vc8 -copy of 
proccedmgs, cv,, 
reports, orders, 
papers, on which 
committee acted. 

No express 



APPENDIX E 
Klies: Comparative Analysis of Procedure in Disciplinary Matters 



• 







7. Law Society 


8. Medical 


9. Nurses 


10. Ophthahnic 


1 1 . Optometry 


12. Pharmacy 


13. Professional 


14. Psychologists 


15. Public 


16. Radiological 


17. Surveyors 


18. Veterinarians 


■}eaM 


6. Erobalmert 
and Funeral 






Dispenser? 






Engineers 


Registration 


.Accountancy 


Technicians 






lio- 


Director 






















.\ct. 




ipists) 


Act 


Act& Rules 


Act 


Act, Regs. 


Act, Regs. 


Act, By-Laws 


Act 


Act 


Act Regs. 


.Act 


Act 


By-laws 


Act. 


clear 

dmail) 
3f hearini;. 


No time 
■pccifi«l. 


Not leas than 
7 days before 
hearing— personal 
service OH 


At least 2 weeks 
before hearing- 
registered mail to 
addrea last known 


No provision. 


Hearing not to 
lake place before 
at least 10 clear 
days after notice of 
hearing given. 
Registered Mad. 


No time specified. 


No provision. 


No [vovision. 


No provision. 


a) Where licence 
to be revoked for 
conviction, insanity, 
bankruptcy, one 


No provision. 


At least ten days 
notice of hearing. 


No time specified. 




registered mail OR 
ad in newspaper 


to registrar. 












month notice. 

b) No time specified 












where accused 
















for notice of 












resides or 
















misconduct 










V 


practices. 
















hearing. 








alleged 
diu; 


Statement of 
compUinl or 
chargr. 


Notification of 
formaJ complaint, 
time and place 
of hearing. 


Copy of charges 
made or state- 


No provision. 


Details of charge, 
nature of supporting 


Statement of 
alleged %iolation. 


No provision. 


Accused to be 
furnished with copv 


No provision. 


of proposed 


Written notice 
stating complaint 


Statement of 
subirct niAttei- 


C:opy of complaint 
sent to accused 


ment of subject 
matter of inquiry, 




evidence, advice 
that accused 






of complaint, 
notice summoning 




mquir>', time, 
and place of 


or charge. 


of hearing. 


summoned to 
.ippear Ijefore 


cof' 






time, place of 
hearing. 




entitled to appear 
at hearing, present 






him to appear 
before council. 




hearing, subject 
matter of 






council. 










evidence, date, 










hearing. 


















time and place of 




























hearing. 


















ion. 


No provijion. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


All hearings in 
Toronto unless 
otherwise directed. 


No provision. 




























ion. 


No proviiion. 


No provision. 


No provision. 


No provision. 


Public hearing. 


Public Hearing. 


No provision. 


No provision. 


No provision. 


No provision. 


Public Hearing. 


No provision. 


No provision. 


nay 
Icciiion 


No proviiion. 


Discipline 


Discipline 


No provuion. 


Hearing may 


No provision. 


No provision. 


No provision but 


No provision. 


No provision. 


No provision, 


Discipline 


No provision. 


Committee may 


Committee may 




proceed, finding 






cannot impose 








Committee may 




ladc in 




proceed in 
accused's alnencc. 


proceed in accused's 
alnencc without 
further notice to 
accused. 




may be made in 
his absence. 






disciphnary 
sanction until 
after hearing 
evidence under 
oath on behalf 
of accused. 








proceed in his 
absence. 

Accusfd nol enlilUd 
to notict of futwi 
prottfdingi. 




rprcicnicd 


No provl.!..... 


Kijflii provided. 


Right provided. 


No provision; may 


May be represented 


No provision. 


No provision. 


No provision. 


No provision. 


Right provided. 


Right provided. 


Right provided. 


No provision. 


1 or agent. 








have counsel on 
appeal. 


by counsel or 
agent. 


















ion. 


No proviiion, 


Committee may 
from lime to time 
adjourn any 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 
































investigation. 
























ion. 


Yei HouhI tiJLi 


Ck>mmiltee or 


College and 


No provision. 


No provision. 


Vcs— President 


Council and 


Yes-Powen of 


No provision. 


No provision. 


Yes powers of 


Yes - issued under 


Yes powers of 




powen of 


Treasurer may 


accused, without 






of Board has 


accused may, 


commissioner 






commissioner 


hand of President, 




commiMion under 


issue summons 


leave or order. 






powers of 


without leave or 


under Public 






under Public 


Vice-President or 


under Public 




Public Inquiries 


with force of 


may obtain 






commissioner 


order, obtain 


Inquiries .Act. 






Inquiries Act. 


2 mcmhrrs of 


Inquiries Act. 




Act. 


subpoena. 


subpoena from 
Supreme Court. 






under Public 
Inquiries .'^ct. 


subpoena from 
Supreme Court, 










council, 




Vlll.'<l 


ILisriK)>t<o 


HiU right to 


Right to call 


No provision. 


May present 


May present 


May "call 


May "submit 
eviacnce". 


No provision. 


No provision. 


May present "such 
evictence as he 


Has riKht tn 


May "submit 




prr«rnt rvi.lr.u r 


"iuiduce evidence". 


evidence, 




evidence. 


evidence. 


evidence". 






"adduce 


evidence". 
























desires". 


evidence", 




Ion. 


Yes ll<Mi,lhj» 
poweni o( 
Communion under 
Public Inquirie* 
Act. 


W. (;.,mn,i..cr 


Yes oath 


Kxpress provision 


No provision. 


Yes — powers of 


Yes— oath may be 


Yes— powers of 


No provision. 


No provision. 


Yes power of 


Yes ch.uriiian or 


Yes jtowers 




liii.* i>owcr lo 


administered by 
chairman or other 


that unsworn or 






administered by 










any mecnber of 


of commissioner 




rxiiinine witnesses 


written statements 




under Public 


presiding officer of 


under Public 






under Public 


Gomniiltce may 


under Public 




under oath. 


member of 


may be used. 




Inquiries Act. 


council or disci- 
"Full" right to 


Inquiries Act. 






Inquiries Act. 


administer oath. 


Inquiries Act. 


vided. 


No proviiion. 


Nn pntviiion. 


Right provided. 


No provision. 


Right provided. 


No provision. 


No provisioa 


No provision. 


No provision. 


No provision. 


•Tull" right 

to croM-examine. 


No provision, 


ion. 


Nn proviiion. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision- 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


inn. 


No proviMiHi 


Nn provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


lion. 


No proviiion. 
No proviiion. 


No provision. 
No provision. 


No provision. 

tvid. Act and Rules 
ofev. apply BUT 


No provision. 
No provision. 


No provision. 


No provision. 
No provision. 


No provision. 
No provision. 


No provision. 
No provuion. 


No provision. 
No provision. 


No provision. 
No provision. 


No provision. 
No provision. 


No prov"/on. 


No providion 




No provision. 






No provision. 


No provision 








may admit legally 




























inadmissible cv. 






















.ion. 


No proviiion. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision. 


No provision- 


No provision. 


.No provision. 


No provision. 


No provision. 


No provision. 


ihaUbe 
ihicolly 


No proviiion 


tvidencr to be 
reduced to writinn, 
taken doMn in 
shorthand or 
mechanically 
recorded. 


No express 
pmvision but 
accused may 
obtain transcript 
for appeal. 


No provision. 


Prt)ccedings to be 
recorded in 
shorthand or 
otherwise 


No provision. 


No express 
provision but 
clear fi-om 
ss. 29(7), 29a(3) 
that proceedings 
recorded. 


All evidence to 
be taken in writing 
by qualified 
stenographer. 


No provision. 


-No provision. 


No provision. 


No provision. 


Kvidcncc to be 
taken by duly 
sworn snort hand 
reporter. 


non. 


No provision. 


No express 
provision BC I 
committee prepare 
report for 
Convocation. 


Yes -copy of 
proceedings, ev., 
reports, orders. 


No provision. 


No prov-ision. 


No provision. 


No express 
provision but 
clear from 




No provision. 


No provision. 


No provision. 


No provision. 


No provision. 






papers, on which 
committee acted. 








s.29(7) that 
record compiled. 














lecision- - 
otified— 


No exprrtt 
provision Hl'l 
time for appeal 
runs from receipt 


No express 
provision BfJ 
copy of committee's 

report sent lo 
accused. 


-No express 
provision but 
clear this is 
done. 


No pro\-ision. 


Copy of order 
made to be served 


No provision. 


No express 
pro%ision — decision 
l*Tittcn (s.29(7)) 


No provbioo 


No exprcsi 

provisioa; s.9(l) 
suggests written 
decision; nothing 


Written notice 
of decision to 
be served — 
no mention of 


No express 
provision ttUT 
copy of order to 
be served on an 


No provision 
Discipline 
0»mniittce 
reporU to 
council whicli 
makes decision. 


No provision, 




of written notice 
of decision. 




mention of reasons. 




but nothing re 






reasons. 


accused. Nothing 




on of 


Suspension or 
cancellation of 


Reprimand (bv 
Committee \ 


Reprimand, sus- 


Suspension. 


«:..<:rv-ruion UD tO 


Suspension, 


Suspension. 


Sulp«3*«»' , 


sssiSof 




Suspension, 


Reprimand, 

•uspcniion. 


Suspension, 



5 provision. 
> provision. 



No c 






provision BUT 
time for appeal 
runs from receipt 
of written notice 
of decision. 

cancellation of 
licence or permit, 
revocation of 
certificate of 
qualification. 



No pro vis ion - 

Evidence to be 
reduced to writing, 
taken down in 
shorthand or 
mechanicaJIy 
recorded. 

No express 
provision BUT 
committee prepares 
report for 
Convocation. 

No express 
provision BUT 
copy of c 
report sei 
accused. 



Reprimand (by 
Commiiiec) 
suspension, 
disbarment, 
striking from rolls. 



r ev. apply BJjT 
lay admit' legally 
ladmissible ev. 



accused may 
obtain transcript 
for appeal. 

Vcs — copy of 
proceedings, ev., 
reports, orders, 
papers, on which 



Reprimand, sus- 
pension, transfer 
of registration to 
special register, 
erasure; Disc, 
Committee may 
impose limited 



No provision. 
No pro^-ision. 



Proceedings t 
recorded in 
shorthand or 
otherwise. 



Copy of order 
made to be served 
on accused- — no 



J prox-ision. 
) provision. 



Suspension, 
revocation of 
registration. 
Discipline 
Committee ma 
reprimand. 



provision but 

dear from 

K. 29(7), 29a(3) 

that proceedings 

recorded. 

No express 
provision but 
clear from 
s.29(7) that 
record compiled. 

No express 
provision —decision 
written (s.29{7)) 
but nothing re 



cancellation of 
registration. 
Under s.51 (see 
below) may also 
reprimand. 



-All evidence t 
be taken in xn" 
by qualified - 
stenographer. 



cancellation 
reprimand. 



No provision. 



No express 
provision; s.9(l) 
suggests written 
decision; nothing 



No provision. 
No provision. 



Written notice 
of decision to 
be served — 



INo provision. 
No provision. 



No express 
provision BUT 
copy of order to 
be served on an 
accused. Nothing 

Suspension, 
revocation of 
registration. 



No provision. 
No provision. 



No provisio 
Discipline 
Commitlee 
reports to 



Reprimand, 
suspension, 
expulsion. 



Evidence to be 
taken by duly 
swom shorthand 
reporter. 



30 days aflcr receipt 



Accused found 
guilty may be 
ordered to pay 
costs including 
cost of reporting 
and transcribing 



a) From final 
decision of Disc. 
Comm.: appeal to 
Council or to judge 
of Sup, Ct. Further 
appeal to C.A. 

b) Fiom decision of 
Council: Appeal to 
judge of Supreme 
Court. Further 
appeal to C.A. 

Obtainable- 
must pay cost — 
otherwise appeal 
abandoned. 

Not effective 
until time for 
appeal past or 
appeal disposed of, 
unless penalty 
imposed for 
incompetence. 



Appeal, within 3 
months of date of 
notice of decision 
served, to judge 
of Supreme Court. 



Appeal within 2 
weeks aifter 
service of copy of 
order — to judge 
of county or 
district court 
where accused 
practices- 



Appeal by way of 
originating notice 
to judge of 
Supreme Court. 
No time specified. 
Also Board may at 

finding or order. 



.Accused, if found 
guilty, may be 
ordered to pay costs 
of hearing, including 
costs of reporting 
and transcribing 
evidence. Taxed on 
Supreme Ct. scale. 

Appeal by motion 
within 1 month 
to C.A. Under s,51 
Pharmacy Act 
(see below) 
appeal to C.A. 
must be within 
15 days. 



Available to accused No provision, 
upon application 
and payment of cost- 



No express 
provision BUT 
s.29(l)(c)- 
certificate to be 
surrendered to 
registrar forthwith. 



May practice 
pending dispositi 
of appeal. 



Appeal to 
judge of 
Supreme Court 
within 3 months 
of day on which 



.\ppeal to judge 
of Supreme Court 
within 3 months 



or district court 
where accused 
practices; trial de 



council may 
pay costs to 
accused. 



a) Appeal to 
judge of Supreme 
Court by notice 
of motion within 
15 days of service 
of copy of decision. 

b) Further appeal 
to C.A. within 1.S 
days of judge's 
decision, 



Cannot practice 
pending appeal 
from suspension 
or expulsion 
unless judge of 
Supreme Court a 



Appeal to CA. 
within 15 days 
after date of 



May continue 
to practice 
pending 
disposition 
of appeal. 



Certificate of 
qualification may 
be rc-isaucd if 
Board satisfied 
applicant fit person. 



Application for 
reinstatement con- 
sidered by disciplin 
committee which 
reports to council; 
same procedure as 

hearing. Right of 



No express 
provision. BUT 
Board may reviev 
decision at any 

further order. 



No express 
provision, BUT 
Board may revic\ 
order and make 
further order. 



No express 
provision BU'/ 
Board may reviev 
order at any time 
make such furthe 



Council may 
restore rcgistratiot 
upon such terms 
and conditions as 
it thinks proper. 



Qualified privilege 
Public Auth. 
Protection Act. 



done in good faith. 



No provision. 



respect of anything 
done in good faith 
under the Act. 



licence — not 
limited to 
^ood faith. 



Board or any 
member for 
anything done 
under Act or Regs. 



1) IfTreas., Sec., 
Deputy Sec., chair- 
man of discipline 

reasonable cause to 
believe that member 
has been or may be 
guilty of misconduct 
re property in his 
possession. Judge of 
Supreme Court may 
order property not 
to be dealt without 

2) Convocation or 
Committee may 
appoint solicitor 
to investigate and 
conduct cases. 



1) Discipline 
Committee has 
services of counsel 
and reporter — 

2) Other discipli- 
njuy powers are 
conferred by 
provisions of s.51. 
Pharmacy Act. 
Powers thus 
conferred not 
mentioned in 
Medical Act. 



1) College may 
publish decision 
of disciplinary 
inquiry and any 
nformation used 
n the inquirv. 



1 ) Provision for 
witnesses fees. 

2) Additional, and 

different discipli- 
nary powers 
conferred by s.51 
on report from 
Minister re sale 
or prescription 



1) Discipline 
Committee may 
employ such legal 
or other assistance 

necessary. 

2) Council may 

Discipline Com- 
mittee and make 
such order as it 
may deem just. 



Q. Stenographic 
or Electronic 
Recording 



No provision. No provision. 

No provision. No provision. 



No provision. No provision. 



No provision. No provision. 



Suspension or Suspension or 

cancclJation of cancellation of 

membership. registration. 



(On appeal C.A. 
may make order 
re costs of appeal.) 



May continue to 
practice pending 
disposition of 
appeal. 



may be restored 
to membership, 
subiccl to terms 
andf conditions 
set out by Board. 



No provision. 


No provision. 


No provision. 


No provision. 


Noapr<« 

provision DL ' 
reference to 

25a(22), 27(2). 


No provision. 


No provision. 


No express 

oblique reference 

ins 27(2). 


No provision. 


No provision. 


No express 
provision Bh T 
,ommiltcc required 
lo make report 
(0 Board. 


No provision. 


Suspension or 


Suspension of 


Suspension, 


cancellation of 


licence, reprimand. 


revocation of 


registration. 


fine, cancellation 
(jf licence, 
{f^ammirtec may 
impose limited 
sanctions.) 


registration. 


Where accused 


Accused found 


No provision. 


found guilty Board 


guilty may be 




may recover from 


ordered to pay 




him costs up to 


cosu of the 




$100.00. 


inquiry — taxed on 
Supreme Court 




No provision. 


Any member 
agRrirved by 
Committee 
drciiion may 
appeal to Board 
within 30 days. 
Further appeal 
to C.A. within 
30 days of 
Board's decision. 


No provision. 


No provision. 


No provision. 


No provision 


No provision. 


Where committee 
favours suspension 
loHRrr than 12 
months and so 
reports to Board, 
may suspend licence 
pending decision 
o( Board. 


No provision. 


No provision. 


DiM-iplinc 
Committee hears 
applications 
for reinstatement, 
rcporU to Board, 


No provision. 



No provision. 
No provision. 



cancellation of 
certificate of 
registration. 



No provision. 
No provision. 



cancellation of 
registration. 



> provision. 
) provision. 



J provision. 
3 provision. 



cancellation of 
registration. 



cancellation of 
registration. 



Hearing shall be 
stenographically 
recorded. 



Written decision- 
accused notified— 
no provision re 



cancellation > 
registration. 



> provision. 
3 prox-ision. 



Evidence to be 



provision BUT 
time for appeal 
runs from receipt 
of \vrittcn notice 
of decision. 

cancrlKidon of 
licence or permit, 
revocation of 
certificate of 
qualification. 



provision BUT 
copy of committi 



Reprimand (by 
Committee) 
suspension, 
disbarment, 
striking from rolls. 



May be awarded 
against accused 
found guilty. 



Appeal, within No pro 

30 days after receipt 
of written notice of 
decision, to judge 
of Supreme Court. 



Certificate of 
qtialiliration may 
be re-issued if 
Board satisfied 
applicimi fit person. 



No^ 



1 against 



done under Aci 
regs., or by-laws; 
not limited to 

Kood TaUh, 



membership to be 
published in press 
with reason therefor 



Board may ca 
a solicitor or a 
counsel for 
assistance and 



Board may app< 
inspector to 
investigate 
complaint made 
against 
chiropodist. 



Board may emplc 
"such legaJ and 
other assistance" 

necessary for the 
purpose of the 
investigation or 
hearing. 



Board c 

for anything done 

in good faith 

under Act re \ 

of form or 

irregularity in 

proceedings. 



No 






1) Committee may 
employ legal or 
other assistance. 

2) Witness fees 
allowed on Supreme 
Court scale. 

3) Costs may be 
awarded to 
accused if 
complaint frivolous 
or Vexatious. 

4) Other 
disciplinary powere 

conferred by 






sof 



-'. 51, Pharmacy 
Act. of which DO 



1) Board not 
even required 
to hold hearing 
-^merely "due 
inquiry'^ . 

2) Board may 
appoint inspector 
to investigate 



No provision. 



Board may a| 
inspector for 
investigation i 



No provisio 



Board may appoint 
inspector for 
investigation of 
complaints. 



No provision. 



Board mav appoint 
inspector (not 
member of Board) 
to investigate 
complaints. 



No provis 



1 ) Board may 
appoint inspector 
to investigate 

2) Majority of 
Board must be 
present. 

3) If votes equal, 
complaint 
dismissed. 



Qualified privilege No pn 
Public Auth. 
Protection Act. 






) be dealt without 

2) Convocation or 
Committee may 
appoint solicitor 
to investigate and 
conduct cases. 



Section 5 



ADMISSION TO AND DETENTION IN 

MENTAL HOSPITALS AND ADMINISTRATION 

OF ESTATES OF PATIENTS 



1229 



INTRODUCTION 

The detention of persons on the ground that they are 
mentally ill must be considered under three distinct headings: 

1. Admission and Detention Pursuant to Provincial Law; 

2. Admission and Detention Pursuant to Federal Law; 

3. Administration of the Estates of Patients while they are 
detained. 

Although detention pursuant to Federal Law may appear 
to be somewhat beyond the Terms of Reference of this Com- 
mission, it will be apparent as we deal with the subject that 
there are related areas which are within the jurisdiction of the 
Province. 

The administration of the estates of patients in mental 
hospitals involves to some extent consideration of the adminis- 
tration of the estates of the mentally incapable who are not 
patients in any hospital, and the functions of the office of the 
Public Trustee in its broader aspects. 



1230 



CHAPTER 86 



Detention of the Mentally 111 



ADMISSION AND DETENTION PURSUANT TO 
PROVINCIAL LAW 

At the time of writing, the law in Ontario governing 
psychiatric facilities and hospitalization of the mentally ill is 
contained in several statutes and the applicable common law. 
More than twenty institutions commonly designated as "On- 
tario Hospital ..." or "Ontario Hospital School ..." are regu- 
lated by the Mental Hospitals Acr.^ 

Four psychiatric facilities derive their power from the 
Community Psychiatric Hospitals Act.- The only institution 
being governed by the Psychiatric Hospitals Act^ is the To- 
ronto Psychiatric Hospital, soon to be closed. The new Clarke 
Institute of Psychiatry was authorized by the Ontario Mental 
Health Foundation Act.^ Two institutions are licensed under 
the Private Sanitaria Act.^ Other private psychiatric facilities 
are governed by regulations under the Private Hospitals Act.*^ 

^R.S.O. 1960, c. 236. See also Public Hospitals Act, R.S.O. 1960, c. 322, ss. 
65-70. 

^Ont. 1960-61, c. 91. 
^R.S.O. 1960, c. 315. 
*Ont. 1960-61, c. 67. 
^R.S.O. 1960. c. 307. 
"R.S.O. 1960, c. 305. See R.R.O. 1960, Reg. 494, s. 23. 

1231 



1232 Mentally III: Detention 

Under the Mental Health Act, 1967," not yet proclaimed, 
all those institutions coming within the designation "psychi- 
atric facility" are to be designated by regulation. 

We shall only deal with the Mental Health Act, 1967, 
which revised and re-enacted much of the previous legislation. 
This revision eliminated many of the objectionable features 
of previous legislation and provided for improved methods of 
review to safeguard the interests of patients. 

HOSPITALIZATION 

The Act provides for a scheme of admission on an in- 
formal basis and on an involuntary basis, designed to meet 
the interests of the individual cases. 

"7. Any person ^vho is believed to be in need of the observa- 
tion, care and treatment provided in a psychiatric facility may 
be admitted thereto as an informal patient upon the recom- 
mendation of a physician."^ 

"8. (1) Any person who, 

(a) suffers from mental disorder of a nature or degree so 
as to require hospitalization in the interests of his own 
safety or the safety of others; and 

(b) is not suitable for admission as an informal patient, 

may be admitted as an involuntary patient to a psychiatric 
facility upon application therefor in the prescribed form 
signed by a physician."^ 

Notwithstanding these provisions: 

"6. Admission to a psychiatric facility may be refused where 
the immediate needs of the case of the proposed patient are 
such that hospitalization is not urgent or necessary."^" 

This section does not place on any one individual or official 
the responsibility of making a decision with regard to the im- 
mediate needs, the urgency or necessity with respect to the 
case. In its present form the decision may be made by a lay 
clerk in the office of the psychiatric facility. 

■Ont. 1967, c. 51. s. l(k). 
'Ibid., s. 7. 
*Ibid., s. 8(1). 
^•Ibid., s. 6. 



Chapter S6 1233 

Other than this wc have no criticism to make of the ad- 
mission procedme. However, the powers conferred on poUce 
officers, to detain and confine for the purpose of medical 
examination, do not sufficiently safeguard the rights of the 
individual. 

"10. Where a (onstahlc or other peace officer observes a 
person, 

(a) apparently suffering from mental disorder; and 

(b) acting in a manner that in a normal person would be 
disorderly, 

the officer may, if he is satisfied that, 

(c) the person should be examined in the interests of his 
own safety or tiie safety of others; and 

(d) the circumstances are such that to proceed under sec- 
tion 9 would be dangerous, 

take the person to an appropriate place where he may be 
detained for medical examination."^^ 

These powers are much wider than the power of arrest 
given to police officers in other cases. The condition precedent 
to the exercise of the power should not be a subjective one, 
"if he is satisfied", but it should be an objective condition, "if 
he has reasonable grounds to believe", or "if he believes on 
reasonable grounds". We can see no reason why such broad 
power to interfere with the liberty of the subject should be 
conferred in the terms expressed in this section. 

The period of detention of an involuntary patient may 
be extended upon completion of a certificate of renewal in 
the prescribed form by the attending physician after personal 
examination.^" Periods of extension are set out in the Act: 

"13. (2) The attending physician shall not complete a certifi- 
cate of renewal unless the patient, 

(a) suffers from mental disorder of a nature or degree so as 
to require further hospitalization in the interests of his own 
safety or the safety of others; and 

(b) is not suitable to be continued as an informal patient. 

"13 



"Ibid., s. 10. Italics added. 
"7&id., s. 13(1). 
"Ibid,, s. 13 (2). 



1234 Menially III: Detention 

We point out that this places a very heavy onus on the 
physician who signs the certificate. Unlike the certificate of 
admission, which is based on a subjective condition precedent, 
an opinion, ^^ the condition precedent to the giving of a certifi- 
cate of renewal authorizing detention of the patient is based 
on objective conditions precedent. In its present form the 
physician could be called upon in court to satisfy the court 
in all cases that the conditions precedent to the issue of the 
certificate of renewal in fact existed. We think the attending 
physician, in issuing a certificate, is entitled to further protec- 
tion. We would suggest that he be entitled to issue a certificate 
"where he has reasonable grounds to believe", or "where he 
is of the opinion based on reasonable giounds". 

The provisions of section 17 with respect to the com- 
munication of information regarding patients are too wide: 

"17. Notwithstanding this or any other Act or any regulation 
made under any other Act, the senior physician may report 
all or any part of the information compiled by the psychiatric 
facility to any person where, in the opinion of the senior 
physician, it is in the best interests of the person who is the 
subject of an order made under section 14 or 15."^^ 

We recognize that there are cases where it is in the in- 
terests of the patient that facts obtained by the attending 
physician should be communicated to other people, but we 
think this is much too broad an authorization. "To any per- 
son", and the words "in the opinion of the senior physician", 
leave the individual's rights without any safeguards except the 
wisdom of the senior physician. We think the right given 
under this section should be limited to "persons lawfully 
entitled thereto". 

The Act provides for the appointment of boards of re- 
view. While we have no doubt that it is the intention to 
appoint boards of review, the Act does not make this a statu- 
tory obligation. 

"27. (1) The Lieutenant Governor in Council may appoint a 
review board for any one or more psychiatric facilities. "^^ 



^*lhid., s. 8(2)(3). 

'''Ibid., s. 17. Italics added. 

^Hhid., s. 27(1). 



ClmtJler S6 123r» 

It is not clear why the usual phraseology used in such cases 
was departed from in this statute. I'he usual formula is: 

"There shall be a board . . . which shall consist of . . . mem- 
bers. The members of tlie board shall be appointed by the 
Lieutenant Cio\ernor in Council, . . . ." 

We think the rights to cross-examine witnesses before the 
Board of Review arc too limited. 

"29. (3) The patient or his representative may call witnesses 
and make submissions and, with the permission of the chair- 
man, may cross-examine witnesses. "^^ 

We realize that in cases that may come before the board of 
review, an unlimited right to cross-examine witnesses would 
frustrate the purposes of the Act, but there would appear to 
be no reason why counsel appearing for a patient should not 
have the same right to cross-examine witnesses as at any other 
hearing. Other than this, the discretion should rest with the 
chairman of the board. 

THE RIGHT TO VOTE 

By virtue of the Elections Act,^*^ "a patient in a mental 
hospital" is not entitled to be entered on the voters' list, nor 
may he vote. Under the Canada Elections Act,^® every person 
who is restrained of his liberty of movement, or deprived of 
the management of his property, by reason of mental disease, 
is deprived of the right to vote. The term "mental hospital" 
in the provincial Act is not defined and is not the term used 
to define an "institution" luider the Mental Health Act. 
The term used in the Mental Health Act-" is "psychiatric 
facility". A comparison of the provisions of the provincial 
and federal Acts shows that some persons prohibited from 
voting in a national election may vote in a provincial election. 
Can it be said that those who are voluntary patients, or Avho, 
under the Mental Health Act will be informal patients, are 
"restrained of their liberty of movement"? The confinement 
to a hospital or the restraint on liberty because of illness are 

^Ubid., s. 29(3). 
"R.S.O. 1960, c. 118, s. 16. 
"Can. 1960, c. 39, s. 14. 
=="0111. 1967, c. 51. 



1236 Me7itnlly III: Detention 

not the proper tests to appl) to the right to vote. The test 
should be the extent of the mental illness, which would be 
subject to certification or the order of tlie court in proper 
cases. 

CRIMINAL LAW AND MENTAL DISORDER 

It is not within the Terms of Reference of this Commis- 
sion to consider the criminal law, except as to the bearing it has 
on the provincial \?i\\\ There are three sections of the Crimi- 
nal Code that deal ^vith remand for mental examination.^^ 

Section 710(5) refers to summary offences and is, by vir- 
tue of the Summary Convictions Act,"" applicable to provincial 
offences. Under section 710(5) of the Criminal Code the court 
may at any time during a trial remand the accused for obser\'a- 
tion for not more than thirty days, upon the evidence of one 
duly (|ualified medical practitioner. This power is substan- 
tially the same as that provided under sections 451(c)(1) and 
524(l)(a). 

The relevant provisions of the Mental Health Act, 1967, 
are: 

"14. (1) Where a judge or magistrate has reason to believe that 
a person Avho appears before him charged with or convicted of 
an offence suffers from mental disorder, the judge or magis- 
trate may order the person to attend a psychiatric facility for 
examination. 

(2) Where an examination is made imder this section, the 
senior physician shall report in ^vriting to the judge or magis- 
trate as to the mental (or.dition of the person. 

(3) If the senior physician reports that the person examined 
needs treatment, the judge or magistrate may order the person 
to attend a psychiatrc facility for treatment.-^ 

15. (1) "Where a jud^e or magistrate lias reason to believe that 
a person in custody who appears before him charged "with an 
offence suffers from mental disorder, the judge or magistrate 
may, by order, remand that person for admission as a patient 
to a psychiatric facility for a period of not more than two 
months. 



"Crim. Code, ss. 451(c) (1). 524 (l)(a), 710(5). 

"R.S.O. 1960, c. 387, s. 3, as amended by Ont. 1964, c. 113, s. 1. 

"Ont. 1967, c. 51, s. 14. 



Chapter 86 1237 

(2) Before the expiration of the lime mentioned in such 
order, the senior physician shall report in writing to the judge 
or magistrate as to the mental condition of the j)ers()n.'-^ 

If). A judge or magistrate shall not make an order under sec- 
tion 14 or 15 until lie ascertains from the senior physician of a 
psychiatric facility that the services of the psychiatric facility 
are available to the person to be named in the order."^'^ 

These sections were designed to facilitate the early exami- 
nation of persons charged with or convicted of crime. The 
intention is connnendablc. However, the procedure provided 
by the section is quite foreign to the administration of the 
criminal law. Provision is made for the senior physician to 
report in writing to the judge or magistrate. This language 
is taken from the Mental Hospitals Act-*' and the Psychiatric 
Hospitals Act.-' Criminal trials cannot be properly conducted 
through correspondence with the judge or magistrate. It is 
essential to the good administration of justice that trials be 
conducted in public, and orders of the court be based on evi- 
dence submitted in public. The right to cross-examine should 
not be denied the accused persons through the process of 
written reports to the judge or magistrate. The legislation 
should provide that the report of the senior physician should 
be received in evidence, unless the accused objects. If he 
objects, the physician should be required to appear and give 
evidence. Courts are not set up to make orders in criminal 
cases based on "written reports to the judge". It is a constitu- 
tional question as to whether the Province can enact la\\s 
relative to the form in which evidence is to be received in a 
criminal case. In any case, the legislation could apply to all 
proper cases involving provincial offences. 

DELEGATION OF LEGISLATIVE POWER 

The Mental Health Act,-^ 1967, is an outstanding example 
of undermining all the safeguards which have been set up to 
protect the rights of the individual against the delegation by 

''Ibid., s. 15. 

^nhid.,s. 16. 

""R.S.O. 1960, c. 236, s. 38. 

^'R.S.O. 1960, c. .'il5, s. 3. as enacted by Out. 1966, c. 123, s. 2. 

"Ont. 1967, c. 51. 



1238 Mentally III: Detention 

the Legislature ot legislative power. "Psychiatric facility" is the 
key word of the statute. It means a facility for the observation, 
care and treatment of persons suffering from mental disorder, 
and designated as such by the regulations. It is the designation 
of an institution as a psychiatric facility by regulation that 
confers the powers provided under the Act, and likewise con- 
fers on the patients the safeguards provided by the Act. The 
safeguards of review, etc., are contained in Part II of the Act, 
but the Lieutenant Governor in Council may by regulation 
exempt any psychiatric facility or class thereof from the appli- 
cation of Parts II and III of the Act.^^ 

In the result, the Lieutenant Governor in Council is 
given the power by passing regulations to render the whole 
Act, or at least a substantial part of it, meaningless; and even 
the Minister may exempt a psychiatric facility from the appli- 
cation of certain pro\isions of the regulations.^*' The latter 
power extends to the exemption of institutions from the pre- 
scribed qualifications for the staff. 

Where the liberty of the subject and his property rights 
are the subject of legislation, it should not be within the 
power of the Lieutenant Governor in Council to make exemp- 
tions from the legislative scheme applicable to institutions that 
come within the statute. In fact, it is difficult to know what 
useful purpose the Act would serve if a psychiatric facility 
were exempt from the application of Parts II and III. 

^^Ibid., s. 61(l)(e)(m). Part III deals with the administration of estates. Just 
how the assets of patients in psychiatric facilities— which are not exempt from 
Part II and are exempt from Part III— are to be administered is far from 
clear. 

""Ibid^s. 61(2). 



CHAPTER 87 



Administration of Estates of the 
Mentally 111 



r OR centuries the property of mentally incompetent per- 
sons has been subject to the supervision of the courts in proper 
cases. In Ontario, there are two major legislative schemes. 
The one, of general application, may be invoked by an appli- 
cation to the courts for the appointment of a committee of the 
estate of the mentally incompetent person; the other arises by 
statute, because a person is a patient in a mental hospital. The 
latter requires a consideration of the provisions of the Mental 
Health Act, 1967,^ and the Public Trustee Act.^ Notwithstand- 
ing that under the Public Trustee Act, the Public Trustee 
administers estates of others than patients undergoing psychia- 
tric treatment, it is convenient to deal with these statutes 
together. 

PATIENTS IN PSYCHIATRIC FACILITIES 

Under the Mental Health Act, 1967, the Public Trustee 
becomes the statutory committee of a patient who is certified 
by a physician to be incompetent to manage his estate.^ This 
provision ackowledges that there are cases where the patient 
may require treatment but may still be capable of managing 
his estate. Under the provisions of the Mental Hospitals Act,"* 

^Ont. 1967, c. 51. 
^R.S.O. 1960, c. 334. 
''Om. 1967, c. 51, s. 32. 

*R.S.O. 1960, c. 236, s. 80, to be repealed by the Mental Health Act, 1967, 
when declared. 

1239 



1240 Mentally III: Adniinist ration of Estates 

the transfer of the estate of an imokmtary patient to the Pub- 
lic Trustee was automatic and immediate on the patient's 
admission to a mental hosoital. 

Experience has shown that of those confined to mental 
hospitals, nineteen per cent enter as voluntary patients. This 
figure has been increasing since tlie provisions for informal 
admission were introduced. Of all patients admitted, seventy- 
fi\'e per cent are released within six months, and eighty-five 
per cent within a year. Hasty disposal of assets of a patient 
may cause him ineparable loss, while on the other hand 
prompt action may be necessary to preserve or liquidate wast- 
ing assets. In our view there should be pro\ision for such 
interim management of the estate as may be necessary, and 
the decisions with respect to interim manaafement ousrht not 
to be solely in the hands of the Public Trustee. Consideration 
should be given to the prospects of recovery, the nature of the 
estate, and all the surroiuiding circiniistances. An estate con- 
sisting only of the home of the patient is very different from 
one consisting of speculative securities. Some provision should 
be made for a guardian of the interests of the patient, such as 
there now is for the interests of infants. The procedure and 
rules to be followed could well be worked out by the Statutory 
Powers Rules Committee recommended in this Report. 

EFFECT OF TRUSTEESHIP 

Under the Mental Health Act, 1967: 

"48. Every gift, grant, alienation, conveyance or transfer of 
property made by a person ^vho is or becomes a patient shall 
be deemed to be fraudulent and void as against the Public 
Trustee if the same Avas not made for full and \aluable con- 
sideration actually paid or sufficiently secured to such person 
or if the purchaser or tranferec had notice of his mental con- 
dition. "° 

This section is most difficult to construe, but on any con- 
struction it appears to be harsh and an unjustified encroach- 
ment on civil rights. It ^vould appear that every transfer of 
property by a person who later becomes a patient in a mental 

?nrn '^ol'/' ^^' '• ^^' formerly s. 95 of the Afental Hospitals Act, R,S.O. 
iWuU, c. 16b. ' 



Chapter 87 1241 

hospital is, as against the Public Trustee, fraudulent and void 
if one or the other of two conditions exists: 

1. If there has not been full and \aluablc consideration 
given or secured; or 

2. 1 he purchaser or transferee had notice of the patient's 
mental condition. 

Notwithstanding that full consideration was given, if the pur- 
chaser had notice of the mental condition of the tranferor, 
whatever that means, the whole transaction is \oid as against 
the Public Trustee. 

The section is drastic and in its terms unwarranted for 
the following reasons: 

(1) There is no time limit. Any transaction during the 
lifetime of the patient may be called in question after he 
becomes a patient in a mental hospital. 

(2) The words "notice as to mental condition" are vague 
and meaningless. There is no definition of "mental con- 
dition". A provision which could have such far-reaching 
effect on property rights should be set out in precise and 
unambiguous language. Mental condition should be de- 
fined and it should be clear that it is incapacity at the time 
of the transfer that would invalidate the transfer. 

(3) If our construction is the correct one, all gifts made by 
a patient during his lifetime prior to his admission to a 
hospital would be void, irrespective of his mental condition 
at the time of the gift. 

(4) A purchaser who has given full consideration may lose 
his property if it is shown in an action that he had "notice" 
of the transferor's mental condition, whatever those in- 
definite words mis^ht mean. 

This is not a law of general application. It applies only 
to those who become patients in psychiatric facilities. It is not 
limited to those patients who have been certified to be in- 
competent to manage their estates, and it applies "as against 
the Public Trustee", even where he may not be managing the 
particular patient's estate. 

On the other hand, it does not apply where the transferor 
has been the subject of an application to the court for a 



1242 Mentally III: Adm'mi.shdliuu of Estates 

declaration of menial incompetency, but has not become a 
patient in a psychiatric facility. We do not think that there 
should be one law for those who have dealt with or received 
gifts from persons who have later become patients in a mental 
hospital, and another for those who had like transactions with 
persons who later have been declared by the courts to be men- 
tally incompetent, without being admitted to a mental hos- 
pital. It may be that the section is intended to protect the 
interests of patients in hospitals, but if such a law is necessary 
it should be one of general application. It is not clear that it 
is necessary, and it is not clear that it is in the interests of the 
patients. In the light of the taxation laws, it may be that gifts 
and transfers of property made before hospitalization would 
be quite beneficial to a patient. 

The validity of gifts or other transactions should be left 
to be determined by the courts. This is not a matter that 
should automatically be determined when a person suffering 
from mental incapacity becomes a patient in a psychiatric 
facility. 

ADMINISTRATION OF ESTATES 
BY THE PUBLIC TRUSTEE 

The Public Trustee does not administer estates according 
to any known law of trusts. He charges for his services, but 
generally speaking he does not pass his accounts unless he is 
required to do so. He makes a fixed charge. The charge is 
made as follows: two per cent on capital disbursements, two 
per cent on capital receipts, and one per cent on bank 
accounts. The Public Trustee advised us that his charge is 
really based upon the structure of the estate, the length of time 
it is under administration, the difficulty of administration, and 
the needs of the patient. He said he could not lay down "a cut 
and dried rule". We are told that if the estate can afford to 
pay, the rule is to charge fees for ordinary estates according to 
the practice of the Surrogate Court. In fact, the Public Trus- 
tee does not really "administer" the estates coming under his 
charge. 

Under the Public Trustee Act, the Lieutenant Governor 
in Council may make regulations "fixing the rate of interest 



Clialilcr 87 124:5 

to be allowed upon money in the hands of the Public Trustee 
and fixing the amount of interest to be charged upon advances 
made on behalf of any estate and the custody and control of 
securities held by him for investments".^ 

Acting under the power conferred under the Act, the 
Lieutenant Governor in Council has fixed the rate of interest 
to be paid on money in the hands of the Public Trustee 
generally at the rate of four per cent per annum on the mini- 
mum quarterly balance of %^i^{) or over. Where money in the 
hands of the Public Trustee is money of Crown estates, the 
rate is two per cent per annum, and where money is held 
under the Child Welfare Act or under Indian trusts, or is 
held uninvested under the Cemeteries Act, the rate is one per 
cent per annum, notwithstanding that the balance is less than 
S500.' 

In practice, an estate is dealt with in two ways, depending 
to some extent on the nature of the estate. It may be held by 
the Public Trustee in specie, e.g., government bonds; or it 
may be liquidated, e.g., common stocks and real property. If 
it is held in specie, the income is credited to the account of the 
patient. If it is liquidated, the proceeds form part of a pooled 
fund and are invested for the account of the Public Trustee. 
The patient is allowed four per cent interest on the amount 
of his estate that has been paid into the pooled fund. A profit 
is made on the difference between the income received on 
the pooled fund and the four per cent interest allowed to the 
patient. This profit is paid into an "administration fund", 
carried as a surplus account of the Public Trustee and not 
for patients. Out of the administration fund, $200,000 has 
been set aside as an insurance fund, from w^hich any claims 
for maladministration might be paid. 

In addition to the profit made on investment of estate 
funds, the Public Trustee has a substantial income from 
charges made against the estates of patients. The Public Trus- 
tee is not only authorized but directed by the Act to make the 
charges prescribed by the regulations for his services against 
every estate that comes into his hands. All fees, charges, and 
expenses that would be allowed to a private trustee are allowed 

'R.S.O. 1960. c. 334, s. 14(f). 
"O. Reg. 59/65, s. 5(3). 



1244 Mentally III: Administration of Estates 

to the Public Trustee.^ In so far as patients in mental hospitals 
are concerned, in cases of hardsliip or poverty he may forego 
his charges.^ 

The annual report for the Public Trustee for the fiscal 
year ended March 31, 1967 shows: 

Total Assets Under Administration: 

Estates, trusts and committeeships .573,636,909.27 

Administration fund 6,287,168.66 



$79,924,077.93 

Interest earned on investments and bank 

accounts $2,188,450.44 

Less: Interest allowed 1,097,692.15 

Net Interest Earned for Year— 

Schedule 2 $1,090,758.29 



The statement of earnings for the year w^as as follows: 

THE PUBLIC TRUSTEE OF THE 

PROVINCE OF ONTARIO 

STATEMENT OF EARNINGS 

Year Ended March 31, 1967 
FEES: 

CROWN ESTATES: 

Compensation $ 182,754.67 

Special services 6,512.66 

Commission on 

rental collections 966.15 $ 190,233.48 



PATIENT'S ESTATES: 






Compensation 
Special services 
Commission on 
rental collections 


373,226.22 
12,313.13 

11,704.61 


397,243.96 


SPECIAL TRUSTS: 






Compensation 
Special services 
Commissions on 
rental collections 


10,255.32 
566.30 

201.65 


11,023.27 



'R.S.O. 1960, c. 334, s. 8(2). Mental Health Act, 1967, Ont. 1967, c. 51, s. 51. 
"Mental Health Act, 1967, Ont. 1967, c. 51, s. 51. 



Chapter 87 1245 

CHARITIES: 

Compensation 32,111.43 

CEMETERY TRUSTS: 

Compensation 4,650.93 

COMPANY TRUSTS: 

Compensation 5,754.58 $ 641,017.65 



OTHER: 

Interest on bank 

accounts 4,218.21 

Net interest earned 

— investment 

fund account — 

schedule 4 1,090,758.29 1,094,976.50 



Less Debit balances 

written-off 988.03 1,093,988.47 



GROSS EARNINGS: 1,735,006.12 

OPERATING EXPENSES: 

Schedule 3 1,095,271.36 



NET EARNINGS FOR YEAR: 

Schedtde 1 $ 639,734.76 



These statements show that on the investment of funds 
belonging to estates which came into the hands of the Public 
Trustee, and the investment of the administration fund which 
was built up out of profits derived from the investment of 
estate funds, the profit for the year was $1,090,758.29, over 
and abo\'e the four per cent interest allowed to estates. The 
administration fees earned amounted to |641,017.65. The total 
profit was $1,735,006.12. The net earnings for the year, after 
operating expenses were deducted, amounted to $639,734.76. 
This sum was transferred to the administration fund, which 
at the close of the year showed a balance of $5,660,174.94. 
Since the first of April, 1964, this surplus account— misnamed 
administration fund— has been increased by $2,025,252.66. 

It is hard to see what justification there is for a trustee 
charging the usual administration fees payable to trustees, 
unless he administers the estate as other trustees are required 
to administer estates. In the case of about half the estates that 



1246 Me7ilall\ III: Achuinishalion of Estates 

come into his haiuls. ihcrc is no real administration, but a 
mere pooling ol estates to produce a profit for the Public 
Trustee on the investment ot the pooled fund. Where a 
private trustee administers an estate and appropriates part 
of the income from investments to his own use, he is required 
to account by law to the owner of the estate, and he loses his 
right of compensation. Under this legislation, the legal rights 
of the unfortunate o^vners of estates are set aside and the law 
authorizes a process of administration quite foreign to the 
traditional law of trusts. This is an unjustified encroachment 
on the civil rights of the unfortunate people who are com- 
pelled to have their estates administered in this way. 

The feeble excuse given for this system was that if it 
were not followed, the office would be run at a loss, and that 
in some cases of hardship the estates are administered without 
charge. We cannot see that this is an excuse. If welfare ser- 
vices are necessary in the administration of small estates, the 
burden of the cost should not fall on other unfortunate 
mental patients. It should be borne by the public at large. 

The w^hole scheme and philosophy of the administration 
of estates by the Public Trustee should be completely revised 
and put on the same basis as administration by private trus- 
tees. If the office cannot be operated profitably on a just 
basis, the Province should bear the loss. In any case, the office 
of Public Trustee ought not to be operated on an unjust basis 
that provides a very large surplus which rightfully should 
belong to the estates administered. 

POWERS OF INVESTIGATION 

The Public Trustee is clothed with extraordinarily wide 
powers of investigation. 

"5. The Public Trustee shall discharge the duties imposed 
upon him by The Crown Administration of Estates Act, The 
Charities Accounting Act and any other Act of the Legis- 
lature or by the Lieutenant Governor in Council, and he 
shall also make inquiries from time to time as to property 
that has escheated, or become forfeited for any cause to the 
Crown, or in which the Crown in the right of Ontario may 
be interested, and every person when required by the Public 



C:luil>trr S7 1247 

Trustee shall furnish him with such information as he re- 
quires, and in default of so doing is guilty of an offence and 
on summai-y conviction is liable to a fine of not more than 
$100, which fine shall be paid over to the Public Trustee."'" 

No government sen'ant should have such broad powers. 
The scope of the power of investigation is luiliniited, and 
there is no limitation on the use to which the information 
may be put. 1 here would not appear to be any reason why 
the powers of a Commissioner under the Public Inquiries Act 
would not be sufficient. We reconmiend that the words, "and 
every person when required by the Public Trustee", and 
those following, be deleted from the Act, and appropriate 
words limiting his powers of investigation be substituted. 

A GUARDIAN OF THE INTERESTS 
OF OWNERS OF ESTATES 

A guardian should be appointed to act on behalf of those 
estates being administered by the Public Trustee, and should 
examine all the charges made and require accounts to be 
passed in proper cases. He should appear on behalf of the 
estates on the passing of accounts. Likewise, where the Public 
Trustee has the discretion to forego claims for compensation in 
cases of poverty or hardship, the guardian should have the 
duty to bring all the relevant circumstances to the attention of 
the Public Trustee, showing the instance of poverty and hard- 
ship that may exist. 

We do not wish it to be inferred from anything we 
have said that any reflection on the holder of the office of Pub- 
lic Trustee or any of his staff is intended. They are devoted 
public servants w^orking in a system prescribed for them by 
law, and it is their duty to cari7 out the law as it is. 

AN ANNUAL REPORT 

In view of the nature of the office and the large sums of 
money that are handled in it, the Public Trustee should make 
an annual report which should be tabled in the Legislature. 
The report should contain a reasonable statement of the 
financial affairs of the office. Fhe report now made to the 

"Public Trustee Act, R.S.O. 1960, c. 334, s. 5. 



1248 Mentally III: Administration of Estates 

Attorney General should be amplified so that it may be 
readily understood by those ^vho read it. It is not sufficient 
that a confidential report be made to the Attorney General. 
All those who may ha\'e an interest in the estates in the hands 
of the Public Trustee arc entitled to know how the office is 
administered. 

PERSONAL LIABILITY OF THE PUBLIC TRUSTEE 

The Public Trustee is personally liable only where there 
is wilful misconduct in the management of an estate. The 
relevant section reads: 

"50. The Public Trustee is liable to render an account as to the 
manner in which he has managed the property of the patient 
in the same way and subject to the same responsibility as any 
trustee, guardian or committee duly appointed for a similar 
purpose may be called upon to accoimt, and is entitled from 
time to time to bring in and pass his accounts and tax costs 
in like manner as a trustee but is personally liable only for 
wilful misconduct. "'^'^ 

The italicized portion of this section is difficult to construe 
and it is hard to know why it is there. The Public Trustee Act 
provides that the Lieutenant Go\ ernor may appoint a person 
"to be a Public Trustee", and it goes on to provide: "The 
Public Trustee is a corporation sole under that name with 
perpetual succession and an official seal, w^io may sue and be 
sued in his corporate name."^- One or two deputies may be 
appointed to act in the absence of the Public Trustee, but the 
protection given in the above quoted section of the Mental 
Health Act, 1967, does not extend to the deputies. 

If the protection is intended only to be extended to the 
person who is appointed Public Trustee— as distinct from "the 
Public Trustee", the corporation— it v.ould have been much 
simpler to have allo^ved the law to take its course and to pro- 
vide that the Public Trustee shall be indemnified out of the 
Assurance Fund for all claims against him. To take away 
rights of action at common law is c^uite unjustified. In our 
discussion -with Mr. Thompson, the present Public Trustee, 

"Mental Health Act, 1967, Out. 1957, c. 51, s. 50, formerly s. 97 of the Mental 

Hospitals Act, R.S.O. 1960. c. 236. Italics added. 
"R.S.O. 1960, c. 334, s. 1. 



Chapter S7 1249 

he said that he did not know why the provision giving protec- 
tion was in the statute, but nevertheless it was re-enacted in 
1967. 

The Public 1 rustee should have no more protection than 
private trustees have. This should be particularly true with 
respect to the estates ol patients in psychiatric facilities. 

In addition to other forms ol statutory protection given 
to the Public Trustee, the Act provides: "Notliing in this Act 
makes it the duty of the Public Trustee to institute proceed- 
ings on behalf of a patient or to intei'vene in respect of his 
estate or any part thereof or to take charge of any of his prop- 
erty. "^^ The essence of this provision is that the Act imposes on 
the Public Trustee the privileges of a trustee and the right to 
remuneration, but absolves him of the ordinary obligations 
and duties of a trustee. He is given wide powers over the 
property of others, including patients in psychiatric facilities, 
but he is absolved from any duty to exercise them. He is 
given power to take charge of patient's property, but no duty 
to do so. He may leave it for "moth and rust to corrupt". He 
may take charge of the patient's accounts receivable or promis- 
sory notes, but he is under no duty to collect them. He may 
let statutory periods of limitation go by with impunity, so 
long as he does not do so wilfully, and it is now arguable that 
section 55 absolves him even from that liability. We can see 
no defence for this legislation. We repeat that legislation 
which imposes on patients in a psychiatric facility, and others, 
statutory trusteeship of their property, should meticulously 
provide that all the ordinary obligations and duties of a trus- 
teeship follow as a matter of course. 

LIMITATION OF ACTIONS 

The limitation section of the Mental Health x\ct, 1967, 
applies not only to protect all those doing any act in pursuance 
of the Act, but doing any act in "intended pursuance" of the 
Act. This includes the Public Trustee. The section reads: 

"58. All actions, prosecutions or other proceedings against any 
person or psychiatric facility for anything done or omitted 
to be done in pursuance or intended pursuance of this Act 



"Mental Health Act. 1967. Out. 1967, c. 51, s. 55, formerly s. 102 of the Mental 
Hospitals Act, R.S.O. 1960, c. 236. 



1250 Mentally III: Administration of Estates 

or the regulations shall be commenced within six months 
after the act or omission complained of occurred and not 
afterwards." ^^ 

We shall deal with this section first, in so far as it protects 
the Public Trustee. The legislation is unique in that it 
imposes a limitation period, wdthin which actions for breach 
of trust may be brought. No other statutory limitation period 
applies to breaches of trust. In the second place, the period 
is extraordinarily short. In the third place, the limitation runs 
against a patient who is confined in a psychiatric facility and 
has no opportunity to assert his rights because the rigfit to 
assert his rights is vested in the Public Trustee. In the fourth 
place, even if he had a means of asserting his rights, he w^ould 
have no means of knowing of the maladministration of his 
estate until after the six-month period had gone by. Passing 
accounts wdth respect to anything that took place more than 
six months prior to the submission of the account, would be 
largely a meaningless gesture. The simple process of a six- 
month delay in the preparation of accounts for passing w^ould 
conceal maladministration and as a result deprive patients of 
sources of information on which to found an action for any 
maladministration. When a patient dies, his personal repre- 
sentatives, in most cases, would have no means of knowing of 
the maladministration until the limitation period had expired. 

The purpose of limitation legislation is to relieve against 
stale claims that might be conjured up after the evidence 
relative to a transaction may have disappeared. The purpose 
of this limitation period is to protect authorities who have 
themselves the special knowledge of the relevant transactions. 
It is foreign to true limitation legislation. 

So far, we have dealt w^ith the section in its application 
to the administration of estates. The section extends to protect 
"any person or psychiatric facility for anything done or in- 
tended to be done or omitted to be done in pursuance or 
intended pursuance of the Act or the regulations". It is hard 
to deal with this section in restrained language. 

Patients are not able to consult solicitors or to bring 
actions, yet the limitation period runs against them notwith- 

^*Ihid., s. 58. 



Chapter S7 1251 

standing thai they are by law under incapacity to protect their 
rights. We can see no just reason why the sick should be 
penalized with respect to their legal rights to bring an action 
in the courts. We recommend that the section be repealed. 

MENTAL INCOMPETENCY PROCEEDINGS 

The estates of mentally incompetent persons who have 
not become patients in a mental hospital may be administered 
under the supervision of the court. Likewise, on proper 
application the estates of those who have become patients in 
a mental hospital may be so administered. 

It may be that the procedure for the administration of 
estates under the supervision of the courts might be simpli- 
fied, but it does provide real safeguards for the interests of 
the incompetent. 

In 1964 the procedure w^as somewhat simplified with a 
view to reducing the burden of costs, particularly on smaller 
estates.^^ It is too soon to judge what beneficial results have 
flow'ed from the change of procedure. Before the change, the 
applications to the court under the Mental Incompetency Act 
were comparatively few, averaging about seventy-five per year. 
Where applications were made, the estates were usually sub- 
stantial, and often those of aged people. 

It would appear that there is a deficiency in our system. 
There should be some informal and inexpensive procedure 
provided for the administration of small estates. 

In practice, families often devise their own way of hand- 
ling the estates of relatives who may have become incompe- 
tent, and particularly those of aged parents. A power of 
attorney is often taken, authorizing a member of the family 
to do banking and to pay necessary bills. Such a power of 
attorney may be invalid at common law if the donor becomes 
incompetent.^*^ 

Under the Mental Health Act, 1967: "Upon the Public 
Trustee becoming committee of the estate of a person under 
this Act or by an order made under this Act, every powder of 

^"An Act to amend The Mental Incompetency Act, Ont. 1963-64, c. 60. 
'"See Drew v. Nunn (1879), 4 Q.B.D. 661; Yonge v. Toynbee, [1910] 1 K.B. 
215; but see to the contrary, Kerr v. Town of Petrolia (1921-22), 51 O.L.R. 74. 



1252 Mentally III: Administratioyi of Estates 

attorney of such person is void.'" This statute renders all 
j^owers of attorney \oid. irrespective of whether they are irre- 
\ ocable or not. No protection is given to those who have dealt 
with the donee of the power in good faith and without notice 
that the donor has been certified as incompetent under sec- 
tion 32 (3), or where the Public Trustee has taken charge of 
the estate under section 32 (4), or where the Public Trustee 
has been appointed as trustee under section 32 (5). It may be 
that the transactions carried out by the donee of the power 
have been for the benefit of the patient. Nevertheless, they 
are void because the donee's authority to act for the donor 
has been rendered void by the statute. This is unjust. 

The section is a negative approach and does nothing to 
solve a very real problem. A form of power of attorney should 
be authorized by statute v/hich would in proper circumstances 
enable the donee to continue to act for a person who has 
become incompetent. Simple machinery could be devised, 
whereby on consent of the parties likely to be interested in 
the estate of one W'ho has become incompetent, a person could 
be authorized to act as attorney for the incompetent without 
setting up the elaborate machinery of a legal committee. It is 
not the function of this Commission to work out a procedure 
in detail, but steps should be taken to give legal authority to 
a useful practice that is now carried on on a very wide scale, 
but with questionable legality. 

RECOMMENDATIONS 

1 . There should be an objective condition precedent to the 
power of a peace officer to detain a person on the ground 
of mental disorder. Section 10 (b) of the Mental Health 
Act, 1967, should be amended by substituting the words, 
"if he believes on reasonable grotmds" for the words "if 
he is satisfied". 

2. The attending physician should have the power to issue 
a renewable certificate for the detention of an involun- 
tary patient "^vhere he has reasonable grounds to believe 
that the patient suffers from mental disorder of a nature 
or degree so as to require further hospitalization in the 



^•Om. 1967, c. 51, s. 44. 



Chapter 87 1253 

interests of his own safety or the safety of others; and is 
not suitable to be continued as an informal patient". 
Section 13 (2) should be amended accordingly. 

3. The senior physician mentioned in section 17 ol the 
Mental Health Act, 1967, should have power to commu- 
nicate information compiled by the psychiatric facility 
only to persons entitled by law to the information. Sec- 
tion 17 should be amended accordingly. 

4. A qualified barrister appearing as counsel for a patient 
before the board of review should be permitted to cross- 
examine witnesses as of right. 

5. The Election Act^'^ should be amended to clarify the 
right of voluntary patients to vote. 

6. Provision should be made for a scheme of interim man- 
agement of the estates of patients whose hospitalization 
may be of short duration. 

7. An office of guardian of those suffering from mental dis- 
order should be created to facilitate management of small 
estates, and to be a watch dog of the interests of the 
mentally incompetent. 

8. The validity of gifts, conveyances or transfers of property 
should be left to the courts. In any case the pro\'isions 
of section 48 of the Mental Health Act, 1967, should be 
amended to limit its application to transactions after the 
donor or transferor has become incompetent. 

9. Estates coming into the hands of the Public Trustee 
should be administered on the same legal basis as estates 
are administered by private trustees. 

10. The powers of the Public Trustee to conduct investiga- 
tions and acquire information should be limited to those 
of a comissioner appointed under the Public Inquiries 
Act.i^ 

11. The Public Trustee sliould be recjuired to keep confiden- 
tial any information obtained by him. Such information 
should not be conveyed to anyone except those legally 
entitled thereto. 



'R.S.O. I960, c. 118. 

'Discussed in Part I, Seciion 4 supra. 



1254 Mentally III: Administrnlinn of Estates 

12. Section 55 of the Mental Health Act, 1967, should be 
repealed. 

13. Section 58 of the Mental Health Act, 1967, should be 
repealed. 

14. A simple and inexpensive method of administering small 
estates should be devised so that family arrangements 
could be carried out with the approval of the guardian 
of the mentally incompetent, and in appropriate cases 
with the approval of the county or district court judge. 

15. A form of power of attorney should be recognized by 
statute which would authorize the attorney— with the 
approval of the guardian of the mentally incompetent, 
or, in proper cases, the county or district court judge- 
to continue to act as attorney for the donor after he has 
become incompetent, so that small and limited transac- 
tions such as the banking and paying of small bills may 
be carried out by the attorney. 

16. If the foregoing recommendation is adopted, section 44 
of the Mental Health Act, 1967, should be amended. In 
any case, it should not apply to irrevocable powers of 
attorney. 

17. The Public Trustee should make an annual report which 
should be tabled in the Legislature. 



Consolidated Summary 
of Recommendations 



1255 



Part I 

VOLUME 1 

THE EXERCISE AND CONTROL OF 

STATUTORY POWERS IN THE 

ADMINISTRATIVE PROCESS 

Statutory Powers: Administrative and Judicial 
Powers of Decision 

PRINCIPLES THAT SHOULD GOVERN THE 
NATURE AND SCOPE OF STATUTORY POWERS 
OF DECISION 

1. Where a statute confers a power of decision, rules or 
standards to go^•ern the exercise of the power capable 
of judicial application should be stated in the statute, 
(p. 101) 

2. Where rules or standards for judicial application cannot 
be stated and an administrative power to decide on 
grounds of policy is necesssary and unavoidable for 
carrying out the policy of the statute, the administrative 
power should be no ^vider in scope than is in fact neces- 
sary, (p. 95) 

3. Where an. administrative po\\cr is conferred, wherever 
possible objective factors or purposes to be taken into 
account in reaching the decision should be expressed in 
the statute, (p. 102) 

4. Where a statute makes provision for the removal of a 
right or a status enjoyed by an individual under the 
statute for reasons not rckited to the general policy of 

1257 



1258 Consolidated Suintnary of Recomniendations 

the statute but personal to the person affected (i.e., that 
the right or status is to be taken away by reason of the 
person's conduct, character or competency), rules or 
standards should be stated, (p. 102) 

5. If it appears, when a statute is first enacted, that ad- 
ministrative power is necessary and unavoidable because 
it is not possible to confer a judicial power on a tri- 
bunal, the statute should be reviewed periodically and 
rules or standards enacted as experience in the operation 
of the statute may warrant, (p. 102) 

6. No power to take immediate action should be confetTed 
in such terms that its existence is dependent solely on 
subjective conditions precedent. There should always 
be at least an objective requirement that reasonable and 
probable grounds exist to justify the action, (p. 101) 

PRINCIPLES THAT SHOULD GOVERN THE 
STRUCTURE AND ORGANIZATION OF TRIBUNALS 

7. Judicial and administrative powers should be separated 
and conferred on different tribunals where possible, (p. 
121) 

Judicial Tribunals 

8. Judicial powers should normally be entrusted to the 
appropriate ordinary courts of law (whether superior 
or inferior), (p. 122) 

9. Where effective governmental action requires that 
judicial powers be conferred on special tribimals, the 
tribimals should be independent of political control and 
constituted to operate in such a manner as to render 
them impartial, (pp. 122-23) 

10. A special judicial tribunal should not be a minister 
or subject to his control, (p. 123) 

1 1 . Members of a tribunal should not be appointed by the 
minister of the department which will be affected by its 
decisions but by the Attorney General or Lieutenant 
Governor in Council, (p. 123) 



Part I (Volumr 1) 1251) 

1 2. Members sliould hold oflicc ioi life or a lixed term ol 
duration sufficient to ensure independence, (p. 123) 

18. Members should be removable only by the Lieutenant 
Governor in Council for cause, (p. 123) 

14. Bias or interest should disqualify members, (p. 123) 

15. Powers of investigation should not be combined with 
judicial powers of decision, (p. 123) 

16. Generally, one or more members should have legal 

training, (p. 123) 

1 7. Where a hierarchy of judicial tribunals is necessary, gen- 
erally the rules ensuring independence and impartiality 
should apply to each tribunal w'ithin the hierarchy, but 
considerations of expediency, informality and expense 
may justify a departure from the principle that powers 
of in\ estigation should not be combined with powers of 
decision with respect to initial or secondary tribunals 
within the hierarchy if at a later stage the decision 
comes before a properly constituted tribunal, (p. 125) 

Administrative Tribunals 

18. Statutory powers to make administrative decisions (i.e., 
policy decisions) should be conferred either on ministers 
or on persons subject to the control and direction of 
ministers, (p. 126) 

19. Where an administrative power is conferred on a minis- 
ter, if possible the minister should himself make or ap- 
prove all decisions in the exercise of the power, (p. 127) 

20. Where decisions are less important and principles of 
policy relatively well defined, power should be given to 
the minister to delegate decisions to subordinates, (p. 
129) 

21. Where an administrative decision is to be made after a 
hearing, ideally the minister should personally hear the 
individuals affected and consider their representations. 

(p. 127) 



1260 Consoliddtcd Summary of Recommendations 

22. Where there should be a hearing and the minister 
cannot personally conduct it, the hearing may be con- 
ducted by a hearing officer and the results of the inquiry 
should be reported to the minister before he makes a 
decision, (p. 129) 

23. Where the power of decision is delegated by the min- 
ister to a subordinate and a hearing is necessary, the 
deciding officer should be the hearing officer, (p. 129) 

24. A power of decision delegated to one official to be made 
after an inquiry by another should be conferred only 
where necessity requires it. (p. 129) 

25. The inquiry system with hearing officers to conduct 
hearings before administrative decisions are made should 
be introduced, (p. 129) 

26. An exception may be made to the principle of con- 
ferring policy decisions on ministers where the matters 
to be decided require specialized technical knowledge 
and full and detailed inquiries into a case, e.g., the 
Ontario Highway Transport Board. In those cases, the 
principles and considerations to govern the decisions 
should, where possible, be expressed in the statute unless 
well understood. The decision should be subject to the 
approval of a minister, or there should be a right of 
appeal to a minister or a committee of the Lieutenant 
Governor in Council, (p. 130) 

Tribunals Exercising Both Judicial and Administrative 
Powers, which for Practical Governmental Purposes, 
Cannot be Separated 

27. The general principles governing structure and organ- 
ization of tribunals, i.e., independence of judicial tribu- 
nals and political supervision of administrative tribunals 
cannot be applied. Departure therefrom should be gov- 
erned and limited by the necessities giving rise to the 
establishment of the tribunal, (p. 131) 



Pari J {WAunie 1) 12G1 

Certain Classes of Tribunals or Specific Tribunals Whose 
Functions Might be Classified as Judicial or as Administrative 
but to Which the Principles Governing Tribunals to Exercise 
These Powers cannot be Generally Applicable 

28. Where emergency action is required for the protection 
of public health and safety power may properly be con- 
ferred on an inspector or official to take action based on 
an inspection or a view. 1 he power should be condi- 
tioned on the existence of reasonable and probable 
grounds that the recjuisite facts exist, (pp. 1 31-32) 

29. WHiere the only (juestion for determination is the appli- 
cation of a technical or scientific standard prescribed by 
statute and the most certain way of ensuring compliance 
is by scientific or technical tests made by trained experts^, 
powers of decision may be conferred on an expert in 
these cases, (p. 132) 

30. W^here the decision is not a finding of fact but the forma- 
tion of an expert opinion, the po^/er to decide can be 
conferred directly on an expert or panel of experts, (p. 
132) 

PROCEDURAL REQUIREMENTS FOR A VALID 
DECISION IN THE EXERCISE OF A STATUTORY 
POWER 

31. A Statutory Powders Procedure Act should be enacted to 
establish: 

(a) Minimum rules of procedure applicable to all 
tribunals exercising a statutory power of decision, 
whether judicial or administrative, unless the power is 
exercised for emergency purposes, the scientific deter- 
mination of standards, in circumstances in which the 
rules would frustrate the object of the statute con- 
ferring the po^ver, or the application of the rules is 
excluded by statute. 

(b) A Statutory Powers Rules Committee with power 
to make appropriate additional detailed rules for each 
tribunal, lia\ ing regard to the nature and purpose of 
the po^s'ers exercised by it. (pp. 212-13) 



1202 Coyisoli dated S^nnmnry of Rrco mm (nidations 

32. If a system of inquiries by hearing officers, to be con- 
ducted before administrative decisions may be made is 
adopted in Ontario, there should be some additional 
provisions adapting the minimum procedure to in- 
quiries, (p. 213) 

Minimum Rules of Procedure 

33. Notice of a hearing and an opportunity to attend and 
be heard should be given to all parties who will be 
affected by a decision. If notice has been given, the tri- 
bunal should have the discretion to proceed if the party 
does not attend, (p. 213) 

34. Reasonable notice of the case to be met should be given 
to parties whose rights may be specifically affected, (p. 
213) 

35. Reasonable adjournments requested in good faith 
should be permitted, (p. 213) 

36. Summonses for the attendance of witnesses and produc- 
tion of documents should be issuable by the tribunal, 
(p. 214) 

37. Hearings should be in public except where, 

(a) public security is involved; 

(b) intimate financial or personal circumstances may 
have to be disclosed; 

(c) professional capacity and reputation are under 
examination before self-governing bodies, (p. 214) 

38. Orders of a tribunal should be enforced through com- 
mittal procedures only on application to the High Court 
of Justice for Ontario, (p. 214) 

39. Tribunals should have power to administer oaths with a 
discretion to accept unsworn evidence, (p. 215) 

40. The parties whose rights are involved should be entitled 
to counsel except in exceptional circumstances. Unless 
the tribunal is in the nature of a court parties should be 
permitted to be represented by agents, (p. 215) 



Pail I (J'olinnc 1) 1203 

11. C'-ounscl for witnesses sliould be permiiied to appear, 
bill should ha\e no liglu to take part in the proceedings 
c\cc})l to adx'ise the witness and lake objections under 
the rele\ant law. Where the public is excluded, such 
counsel should be excluded except when his client is 
giving evidence, (p. 216) 

42. The parties should be entitled to examine their own 
witnesses and to cross-examine opposing witnesses where 
necessary for the lull disclosure of the facts, (p. 216) 

43. Tribunals should have the discretion to ascertain rele- 
vant facts by such standards of proof as are commonly 
relied on by reasonable and prudent men in the conduct 
of their affairs. In other respects the rules of evidence, 
e.g., privilege, should apply, (p. 216) 

41. Official notice may be taken of generally recognized tech- 
nical or scientific facts or opinions within the tribunal's 
specialized knowledge. The parties should be advised 
before, or during the hearing, of matters officially noticed 
in order that they might contest them. (p. 217) 

45. The decision should be in writing if required and the 
parties notified thereof and of their rights of appeal, 
(p. 217) 

46. A decision of a tribunal should be enforceable in the 
name of the tribunal in the same manner as an order of 
an ordinary court, (p. 217) 

47. Reasons for the decision should be given in writing if 
required. The reasons should specify the findings of fact 
and conclusions of law based thereon, (p. 218) 

48. A record should be compiled consisting of: 

(a) the notice of the hearing, 

(b) any intermediate rulings or orders made in the 
course of the proceedings, 

(c) documentary evidence received or considered, 

(d) a transcript of oral evidence or notes of the tribu- 
nal where evidence is not reported, 

(e) the decision and reasons, (p. 218) 

49. A right of appeal should be provided, (p. 218) 



1264 Consolidalcd Summary of Recommendations 

50. The law of qualified privilege in defamation is adequate 
to protect parties and tribimals in proceedings in the 
exercise of statutory powers and should not be extended 
to give absolute privilege, (p. 218) 

Additional Minimum Rules for Judicial Tribunals Only 

51. The Statutory Powers Rules Committee should have 
power to make rules applicable to judicial tribunals with 
relation to the matters set out in paragraphs 52-55, and 
to specify the tribunals to which they apply, (p. 219) 

52. Findings of fact by a judicial tribunal should be based 
exclusively on evidence before it at the hearing and on 
matters officially noticed and disclosed to the parties. 

(p. 219) 

53. Members of a judicial tribunal should not consult with 
one party or his counsel in the absence of the other party 
or his counsel, or where the decision involves a claim 
for a benefit, with interested departmental officials in 
the absence of the claimant or his counsel. A tribunal 
may in proper cases seek legal advice from an indepen- 
dent adviser. Such advice should be made known to the 
parties in order that they might make submissions as to 
the law^ (p. 220) 

54. Those members of a judicial tribunal making the deci- 
sion should attend the hearing and hear and consider 
the evidence. All those hearing and considering the evi- 
dence should participate in the decision, (p. 220) 

55. All evidence before a judicial tribunal should be re- 
corded if possible. Where this is not practical adecjuate 
notes should be kept. (p. 220) 

Detailed Rules for All Tribunals 

56. Detailed rules for tribunals or classes of tribunals should 
be made by the Statutory Powers Rules Committee in 
consultation with the department concerned, (pp. 220- 
21) 

57. All rules additional to those in the statute should be 
published and available to the public, (p. 221) 



Pari I (I'olume 1) 1265 

Constitution of the Statutory Powers Rules Committee 

58. The permanent members should be: 

(a) The Chief Justice of Ontario and ilic Chief Jus- 
tice of the High Court of Justice, or their nominees. 

(b) The Chief Judge of ilic Comity and District 
Courts for Ontario, or his nominee. 

(c) The Chairman of the Ontario Law Reform Com- 
mission, or his nominee. 

(d) One or more representatives of the Attorney 
General's Department nominated by the Attorney 
General. 

(e) A representative of the Law Society of Upper Can- 
ada, nominated by the Law Society of Upper Canada. 

(i) A professor of administrative law of one of the 
law schools of Ontario and two lay members appointed 
by the Lieutenant Governor in Council, (p. 221) 

59. Tavo ad hoc members should be appointed by the min- 
ister of the department involved where special rules are 
being developed for a tribunal exercising powers affect- 
ing the department, (p. 221) 

60. The Committee should ha\'e a permanent secretary who 
should perform substantially the same duties as the sec- 
retary of the Council on Tribunals in the United King- 
dom including the investigation of complaints regarding 
procedure, (p. 221) 

Effect to be Given to Rules 

61. Subject to recommendation 62, the courts should have 
power to set aside a decision based on the purported 
exercise of any statutory power to which the rules apply 
if there is a failure to follow them, unless in the opinion 
of the court, notwithstanding that the rules ha\e not 
been followed, there has been no real or substantial mis- 
carriage of justice. In such case the court should have 
power to validate a decision, (p. 222) 



126G Consolidated Summary of Recommeyidations 

62. Informal settlements may be arri\'ed at by agreement or 
consent without following the rules, or a party may 
otherwise waive his rights under the rules, (p. 222) 

Declaratory Rulings 

63. Power to make declaratory rulings anticipating action 
should not be conferred on statutory tribunals, (pp. 
222-23) 

Publication of Decisions 

64. Important decisions of statutory tribunals and the rea- 
sons for them should be published so as to be available 
to members of the public, (p. 223) 

PRINCIPLES APPLICABLE TO APPEALS FROM 
DECISIONS BY STATUTORY TRIBUNALS 

65. An appeal should be provided from the decision of every 
judicial tribunal, except where an appeal would defeat 
the purpose of the statute, (p. 233) 

66. Appeals from judicial tribunals should be taken to the 
ordinary courts unless circumstances render this im- 
practical, (p. 234) 

67. Where circumstances require that the appeal from a 
judicial tribunal should not be taken to the ordinary 
courts, the appeal tribunal should be established with 
the appropriate characteristics of a judicial tribunal to 
ensure independence and impartiality. An appeal should 
not lie from a judicial tribunal to the Lieutenant Gov- 
ernor in Council or to a minister, (p. 234) 

68. No appeal should lie from an administrative decision 
made by a minister, except in appropriate cases to the 
Lieutenant Governor in Council, (p. 234) 

69. No appeal should lie from an administrative decision to 
the courts, (p. 234) 

70. Administrative decisions made by persons other than a 
minister should be subject to appeal, preferably to a 
minister or to senior administrative officers close to the 
minister, (p. 234) 



Pari I (Vohnne 1) VHM 

71. Dccisons ol iiibunals which issue certilicalcs ot con- 
venience or necessity or fix rates or tolls should be sub- 
ject to appeal on (juestions of law or ultra vires to a 
court, and on the merits of the certificate or (juantitative 
rates and tolls to a minister or to a committee of the 
Lieutenant (Governor in Council, (p. 234) 

72. Where officials are empowered to take emergency action 
based on inspections or views, there should be a sum- 
mary form of appeal to senior officials for a further 
inspection, (p. 235) 

73. Where a tribunal consists of expert personnel who apply 
statutory, technical or scientific standards by objective 
tests, provision should be made for an appeal by way 
of a second test by different experts, (p. 235) 

JUDICIAL REVIEW OF THE EXERCISE OF 
STATUTORY POWERS OF DECISION 

Statutory Restrictions on Judicial Review 

74. All clauses restricting judicial review ought to be 
repealed and none should be enacted unless it can 
be demonstrated that most exceptional circumstances 
demand it. (p. 277) 

75. Subjective ingredients ought not to be included in a 
statutory power unless they are necessary to carry out 
the scheme of the statute. In no case should they be 
included merely as a device to exclude judicial review, 
(p. 275) 

Principles of Substantive Law for Judicial Review 

76. Judicial review in Ontario should be based on two 
principles: 

(a) Retention of the doctrine of ultra vires providing 
for full reviev; by the courts of decisions of all tribti- 
nals, whether judicial or administrative, to determine 
whether the decision is ^vithin the powers conferred 
on them; 



1268 Consolidaled Sunmuny of Recommendations 

(b) Extension of the power of the courts in certain 
cases to review decisions \vithin the powers of tribu- 
nals, to safeguard against errors of law on the face of 
the record or findings of fact unsupported by evidence, 
(p. 304). 

77. The courts should be empowered to cjuash decisions of 
judicial tribunals made within their powers and re- 
quired, by rules made under the Statutory Powers 
Procedure Act, to be based on a record, for error of law 
on the face of the record or for lack of such relevant 
evidence as a reasoning mind might accept to support 
the conclusions of the tribunal, (p. 310) 

78. The courts should be empowered to quash decisions of 
administrative tribunals for an error of la^v on the face 
of the record or appearing in the reasons given by a 
tribunal for its decision, (p. 313) 

79. Decisions of administrative tribunals on questions of 
fact or opinion within their power should not be subject 
to review by the courts, (p. 314) 

80. Decisions of tribunals authorized to take immediate 
action to ineet emergencies should not be subject to 
review except to ascertain if reasonable or probable 
grounds existed to justify the action w^here this is re- 
quired by the statute conferring the power, (p. 314) 

81 . The court on judicial review should have a discretion to 
refuse to quash a decision of a tribunal where it appears 
that no substantial wrong or injustice has been caused 
by the decision. In such a case where a defect in the 
proceedings before a tribunal ^vould render a discretion 
ultra vires the court should have discretion to validate 
the decision, (p. 315) 

82. The grounds for judicial review based on the doctrine 
of ultra vires should not be codified by legislation and 
the law should be left free to develop refinements where 
appropriate, (p. 315) 



Purl I (Volume J) 12G0 

S3. Legislation should be enacted to extend judicial review 
cner decisions in accordance with these recommenda- 
tions, (p. 81 5) 

The Procedural Law of Judicial Review 

84. It is urgent that the proccdiue for judicial review be 
simplified and stripped oi its vexatious technicalities, (p. 
319) The changes that are required relate both to the 
procedure to be followed and the court to conduct the 
review, (p. 325) 

Applications for Judicial Review 

85. Statutory provision should be made for a single pro- 
cedure by way of summary application for re\'iew of the 
refusal to exercise, or of the proposed or purported exer- 
cise of, a statutory power under which any relief may be 
granted that would be available under any of the present 
remedies of mandamiis, prohibition, certiorari, action 
for declaration or injunction, (p. 326) 

86. Specific remedies in each individual statute conferring 
powers should not be enacted. If any variations in the 
general procedure should be required in specific statutes 
conferring powers they should receive special considera- 
tion, (p. 326) 

87. Provision should be made pending review, for an in- 
terim stay of action in relation to a proposed or pur- 
ported exercise of power where the protection of the 
interests of the individual affected requires it. The 
tribunal or the reviewing court should have power to 
grant the stay. (p. 327) 

88. The time within which a purported exercise of statutory 
power is subject to review should be limited. The time 
limit should vary depending on the nature of the statu- 
tory power. Provision should be made for extension of 
the limitation period by the re\iewing court before or 
after it has expired where it is established that there are 
prima facie grounds for review, and that no prejudice by 
reason of the delay \vill result to any party affected by 
reason of the extension of time. (p. 327) 



1270 Cousolidiilt'd Suinniayy of Rccomuunidations 

89. Proceedings lor review should be a\ailable either before 
the tribunal has commenced to exercise tlie power or 
during the course of its exercise or after it has been 
exercised, (p. 327) 

90. An application for judicial reviews' should be commenced 
by originating notice under the general Rules of Prac- 
tice and Procedure of the Supreme Court of Ontario. 
Actions for a declaration or injunction should not be 
made the appropriate remedy in all cases, (p. 328) 

91. Provision should be made for the production of docu- 
ments where necessary and examinations for discovery 
by leave of the reviewing court. Interlocutory proceed- 
ings should be reduced to a minimum and unnecessary 
proceedings penalized in costs, (p. 328) 

92. The evidence in review for error of la^v on the face of 
the record, or absence of substantial evidence, should be 
confined to the record, and in all other cases, should 
include the record where available, and other evidence 
relevant to the issue of ultra vires, (p. 328) 

93. The reviewing court should continue to have the same 
discretionary powder as is now exercised to refuse relief, 
other than the power to refuse relief on the ground that 
there is another equally convenient, effective and bene- 
ficial remedy, (pp. 328-29) 

94. Relief should be refused where the grounds for attack 
on the exercise of a statutory power are merely technical 
in their nature and no substantial injustice or prejudice 
to a party has occurred, (p. 329) 

95. Rules of court should be made governing persons to be 
served with the proceedings, (p. 329) 

96. Provision should be made that tribunals exercising statu- 
toi~y powers should be suable entities for the purpose of 
judicial review, (p. 329) 



I'uil I (}'<>hn»r I) 1271 

07. The Attorney General slioukl be served with notice of 
all proceedings for judicial re\iew, even though he may 
not be a party thereto, (p. 329) 

98. 1 he standing of a person to apply for review should be 
governed by the present principles, (p. 329) 

99. The right of judicial review should be available not- 
withstanding that a right of appeal may exist, (p. 329) 

]()(). The proposed procedure should be available in aid of 
applications for writs of habeas corpus in the same way 
that proceedings for an order in the nature of certiorari 
are now available, (p. 329) 

lf)l. Wherever an action for a declaration or an injunction 
is brought for relief that could be obtained on summary 
application, the offending party should be penalized in 
costs, (p. 329) 

\h¥. Court to Conduct Judicial Review 

102. The application should be heard by the Appellate Divi- 
sion of the High Court of Justice for Ontario and by 
at least three judges thereof, (p. 330; p. 665) 

1 03. The decision should be subject to appeal only with leave 
granted by the Court of Appeal, (p. 330) 

104. Where an action is brought for a declaration or for con- 
sequential relief in which the validity of the exercise of 
a statutory power is in issue, a judge of the Supreme 
Court should have powder, either on his own initiative or 
on the application of any of the parties, to direct that a 
summary application be made to the Appellate Division 
of the High Court for a determination of the validity 
of the exercise of the power . When the validity is deter- 
mined, the matter could be referred back to the trial 
coiu't if necessary, (p. 330) 



1272 Consolidated Siduinary of Rcconivicudations 

Statutory Powers: Subordinate Legislative 

Powers 

LIMITATIONS ON THE SCOPE 

105. Subordinate legislative powers with subjective limita- 
tions should not be conferred except in emergency legis- 
lation, (p. 343) 

106. Power should not be given under any statute to amend 
other statutes, or regulations passed thereunder, by 
regulation except to meet the most exceptional circum- 
stances as in the Emergency Measures Act. (p. 345) 

107. Powers of definition of or amendment of the parent 
Act should not be conferred unless they are required for 
urgent and immediate action, (p. 348) 

108. The penalty for breach of prohibitory regulations should 
be fixed or at least limited by the statute authorizing the 
regulations, (p. 350) 

109. The authority to sub-delegate pow^r to make regula- 
tions should not be conferred, except in relation to the 
exercise of emergency powers, (p. 351) 

110. Where charges or levies are atithorized, the amount 
should be fixed in the statute. Provisions for exemptions 
or relief by regulation are undesirable, but ^vhere un- 
avoidable, any exemptions or relief given should be 
reported specially to the Legislature, (p. 353) 

111. Where power to charge fees to be fixed by regulation 
is confeiTcd, the purpose for which the fees are to be 
charged should be clearly expressed, (p. 353) 

1 12. The power to enact retrospective provisions should not 
be delegated to any body but any such provisions should 
be enacted only by the Legislature, (p. 354) 

113. Statutory provisions shifting the onus of proof ought not 
to apply to offences created by subordinate legislation. 

(p. 354) 



Pari I iVoluinc 1) 127:^ 

114. No practice should be adopted in Ontario ol limiting 
review by the courts of the \alidity of reirulations. One 
nieihod employed in Ontario is to confer subordinate 
legislali\e po\ver with subjective limitations or consid- 
erations. Except in emergency legislation, subordinate 
legislative power sliould be subject to expressed objec- 
tive limitations, (p. -^54) 

115. Judicial tribunals, or administrative tribunals with 
})ower of decision on policy grounds, should not be 
established by regulations, (p. 355) 

PERSONS ON WHOM SUliORDINATE LEGISLATIVE 
POWER MAY BE PROPERLY CONFERRED 

1 1 6. Political control of subordinate legislative power should 
be maintained by conferring the power on ministers, 
either singly or collectively, who are responsible to 
the Legislature, or on persons subject to the supervision 
and control of ministers, (p. 356) 

117. Subordinate legislative power should not be conferred 
on persons or bodies independent of the control of min- 
isters. If the members of the body are intended to be 
representative of interested persons, they should not be 
given the po\\er to make regulations but should be an 
advisory board to a minister, (pp. 357-58) 

1 1 8. Subordinate legislative power free from political control 
should not be conferred on apparently independent 
persons or bodies as a subterfuge, or to relieve the 
political authorities from embarrassing duties, (p. 360) 

119. If effective administration requires that subordinate 
legislative power be conferred directly on an indepen- 
dent person or body, regulations made in the exercise of 
the power should be subject to disallowance by the Lieu- 
tenant Governor in Council or a minister, (p. 360) 

120. Uniform language should be used to confer subordinate 
legislative power where possible, (p. 359) 



1274 ConsoUdatrd Summary of Rccoinmendations 

PROCEDURE THAT SHOULD GOVERN THE 
EXERCISE OF SUBORDINATE LEGISLATIVE POWER 

121. Advance publication of proposed regulations and for- 
mal consultation with, or hearings of interested parties, 
before regulations are made should not be a require- 
ment in Ontario, (p. 364) 

122. Where it is desired that consultation should be man- 
datory, provisions should be made for an advisory board 
representative of the interests of the persons or classes 
who may be affected, wdth v.^hich the minister recom- 
mending, approving or making the regulations is re- 
quired to consult before so doing. In other cases it may 
be sufficient to provide merely for an advisory board 
available to the minister, (p. 364) 

123. No change should be made in the law of Ontario con- 
cerning the manner of publication of regulations or its 
effect, (p. 365) 

124. The Regulations Act should be extended to apply as 
far as possible to all regulations, rules or by-laws that 
make laws affecting the public, except municipal by-laws 
and to include all rules made in the exercise of sub- 
delegated power, (p. 366) 

125. Regulations should not be required to be laid before the 

Legislature, (pp. 367-68) 

REVIEW OF SUBORDINATE LEGISLATION BY 
THE LEGISLATURE 

126. A committee of the Legislative Assembly, consisting of 
seven members w^ith a quorum of three, should be estab- 
lished to scrutinize subordinate legislation, (p. 376) 

127. Provision should be made in the Regulations Act requir- 
ing all regulations filed with the Registrar of Regula- 
tions to be permanently referred to the Committee, (p. 

377) 

128. The terms of reference for the Committee should 
exclude from review any consideration of the policy of 



Pari 1 [I'oUunr I) 1*275 

llic parent Act or of tlic nici lis of ilic regulations, (p. 

377) 

129. The following guiding principles should be laid down 
lor the Connnittee in its examination ol the regulations: 

(a) 1 hey should not eontain provisions initiating new 
policy, but should be confined to details to give effect 
to the policy established by the statute. 

(b) They should be in strict accord with the statute 
conferring power, particularly concerning personal 
liberties. 

(c) They should be expressed in precise and unam- 
biguous language. 

(d) They should not have retrospective effect unless 
clearly authorized by statute. 

(e) They should not exclude the jurisdiction of the 
courts. 

(f) They should not impose a fine, imprisonment or 
other penalty. 

(g) They should not shift the onus of proof of inno- 
cence onto a person accused of an offence. 

(h) They should not impose anything in the "way of a 
tax (as distinct from fixing the amount of a licence 
fee, or the like). 

(i) They should not make any unusual or unexpected 
use of delegated power. 

(j) General powers should not be exercised to estab- 
lish a judicial tribunal or administrative tribunal, (p. 

378) 

1 30. The Committee should be assisted by counsel other than 
the Legislative Counsel or Registrar of Regulations, (p. 
378) 

131. The Committee should have the power to sit during 
recess, (p. 378) 



1276 Consolidated Summary of Recoinmeiidaiions 

132. The Committee should have pov;er to ask for explana- 
tions, written or oral, from the department concerned, 
and should do so in any event before making an adverse 
report, (pp. 378-79) 

133. The Committee should not have power to make changes 
in regulations, (p. 379) 

134. The rules of the Legislative Assembly should be 
amended to provide specifically for the reception of the 
report by the Committee and its approval or dis- 
approval, (p. 379) 

135. The rules of the Legislative Assembly should be 
amended to provide, subject to appropriate safeguards 
and time limits to prevent abuse, some specific pro- 
cedure under which a private member can initiate a 
debate on the merits of any particular regulation, (p. 
379) 



SUPERVISION BY THE COURTS OF SUBORDINATE 
LEGISLATIVE POWER 

1 36. Relief in relation to the validity or operation of regula- 
tions that can be obtained in proceedings by way of 
mandamus, certiorari, prohibition or actions for injunc- 
tion or declaratory judgments should be available in the 
single summary application to the Appellate Division of 
the High Court recommended in recommendations 85 
and following, (pp. 380-81) 

137. Where the validity of regulations comes into question in 
proceedings for their enforcement or to give effect to 
rights purportedly conferred by them, the court before 
which the matter arises, should have power on its own 
initiative or on application of one of the parties to 
direct a summary application be made to the Appellate 
Division of the High Court to determine the question, 
(p. 381) 



Pari J (Volnnw I) Vlll 

Statutory Powers: Powers of Investigation 

CONDITIONS PRECEDENT TO THE EXERCISE 
OF A POWER OF INVESTIGATION 

138. Arbitrary powers ol investigation ought not to be con- 
ferred in any stattite. (p. 390) 

1 39. Where powers of investigation are conferred, they should 
be stibject to conditions precedent which must be satis- 
fied before an investigation can be \'alidly commenced, 
(p. 390) 

140. Conditions precedent should be expressed with pre- 
cision, (p. 390) 

141. Wherever possible conditions precedent should be 
drawn in objective form. (p. 390) 

142. If the implementation of the policy of the statute 
demands that a subjecti\e condition precedent be con- 
ferred, the person who is to form the unre\'iewable 
opinion, should be in a responsible position in the gov- 
ernment hierarchy, preferably the Lieutenant Governor 
in Council or the appropriate minister, (pp. 390-91) 

THE SCOPE OF INVESTIGATORY POWERS 

143. Each provision conferring a power of investigation 
should contain language prescribing the purpose and 
permissible scope of the investigation, (p. 399) 

144. The prescribed scope for any given power of investiga- 
tion should be no broader than is necessary to accom- 
plish the purposes of the Act in question, (p. 399) 

145. The provision defining the scope of an investigation 
should be stated in precise language, (p. 399) 

146. Where possible, the scope of an investigation should be 
stated in the objective rather than the subjective form, 
(p. 399) 



1278 Consolidated Sinnmary of Recommendations 

147. Where it is considered that the scope of an investigation 
should be expressed in the subjective form, the person 
who decides the scope should be in a politically respon- 
sible position, (p. 400) 

148. Where the scope of an investigation is expressed in the 
subjective form, it should be defined by the person who 
initiates the investigation, (p. 400) 

149. The power to determine the scope of an investigation 
should not be subject to delegation, (p. 400) 

SUMMONSES TO WITNESSES AND PRODUCTION 

1 50. Powers of investigation should not be conferred by 
regulation, (p. 408) 

151. Where a person or body has the po^ver to summons per- 
sons to attend to give evidence or furnish information, 
the form of the summons should be prescribed by legis- 
lation or regulation giving sufficient information to 
accjuaint the witness with the general nature of the pro- 
ceedings, (p. 408) 

152. A person summoned as a witness should be entitled to 
a witness fee. (p. 408) 

153. Demands for information should be in writing and 
should indicate the general nature of the inquiry in- 
volved and the nature of the documents and information 
required, (p. 409) 

154. Persons from whom documents are taken should be 
given a statutory right to the return of the documents 
within a reasonable time. (p. 409) 

155. Provision should be made for the admission as prima 
facie evidence of properly certified copies of documents 
obtained under a statute and returned to the owner. 

(p. 409) 

POWER OF SEARCH AND SEIZURE 

156. Legislation which is intended to give power to enter, 
search and seize property should so state in clear and 
unambiguous language, (p. 422) 



Part I {Volumr 1) \21\) 

157. Unless the purpose of the statute would be frustrated, 
judicial authority should be a condition precedent to the 
exercise of the power of entry and search, (p. 422) 

158. Judicial authority should always be a condition pre- 
cedent to the right of entry and search of a private 
dwelling, (p. 422) 

159. Where a statute is penal as opposed to regulatoi7, strict 
rules W'ith regard to search and seizure should be fol- 
lowed, (p. 422) 

160. Where judicial authority to search and seize is required, 
guidelines should be laid down to direct the judicial 
authority, (p. 423) 

161. An applicant for judicial authority to search and seize 
should be required to show: 

(a) some facts to justify the exercise of the power; 

(b) the place to be searched; and 

(c) some reason to believe that the relevant material 
may be found in the place to be searched, (p. 423) 

162. Every statute authorizing a right of search should pro- 
vide that the search be exercised during the day, unless 
otherwise ordered by judicial authority, (p. 423) 

163. Every statute requiring judicial approval or authority 
to enter and search should incorporate the provisions of 
section 14 of the Summary Convictions Act. The power 
to seize property should be conditioned on there being 
reasonable grounds for believing that the property is 
something in respect of w^hich an offence against the 
statute in question has been, or is suspected to have been 
committed, or that it will afford evidence as to the com- 
mission of an offence, (p. 423) 

164. Where it is necessary for documents to be examined 
away from their usual locations, statutory provision 
should be made that certified copies be admitted as 
prima facie evidence in any prosecution or matter aris- 
ing under the relevant statute, (p. 423) 



1280 Consolidated Sinnmary of Recommendations 

165. No power should be given to any tribunal to investigate 
where it "deems it expedient" or to any person to seize 
property where "he deems it expedient", (p. 423) 

POWER TO STOP AND DETAIN 

166. Discretionary powers to stop and detain should be 
abolished, except in cases involving public safety or pub- 
lic health. In all other cases they should be conditioned 
on reasonable grounds for belief that the statute in 
question is being violated, (p. 425) 

167. Where the rights of stoppage and detention are given, 
the detention should not be "at the risk of the owner", 
(p. 425) 

POWER TO SEARCH THE PERSON 

168. Power to search the person ought not to be conferred 
under provincial law. (p. 426) 

POWER TO REQUIRE WITNESSES TO TESTIFY 

169. In no case should subpoenas be issued out of a court 
for the attendance of w'itnesses before tribunals that are 
not courts, (p. 430) 

1 70. All notices to attend or summonses to witnesses to attend 
and give evidence before tribunals should be issued by 
the tribunals, (p. 438) 

171. Where it is not intended that a proposed v.'itness is to 
be liable to committal for non-attendance, the tribunal 
should be empowered to issue documents, for conven- 
ience called Notices to x\ttend, containing basic informa- 
tion such as the date, time and place for attendance, 
and the nature of the hearins:. Where non-attendance is 
an offence for which the witness may be prosecuted, this 
should be clearly stated in the notice, (p. 430) 

172. Where it is intended that the proposed witness should 
be liable to committal for failure to attend, the tribunal 
itself should be empowered to issue a document called 
"Summons to Witness" containing all necessary infor- 



Part I (J'uliinw 1) 12 Si 

mation, such as the date, time and place of the hearing, 
and I lie fact that failure to ohcy would render the pro- 
posed witness liable to counnitlal to prison on an appli- 
cation to the Supreme Court of Ontario, (pp. 430-31) 

173. Investigating bodies should not have power to commit 
witnesses for disobedience of a summons, (p. 431) 

174. No statute should state that the disobedience of a sub- 
poena "shall be deemed a contempt of court", (p. 431) 

175. The law of Ontario should be clarified to provide that 
all e\idential privileges should be recognized by inxesti- 
gating tribunals, (p. 440) 

176. Legislation governing investigations should contain a 
provision similar to section 25(4) of the Coroners Act 
Avhich reads as follows: 

"25. (4) A witness shall be deemed to have objected to 
ans^\•er any question upon the giound that his answer 
may tend to criminate him or may tend to establish his 
liability to a civil proceeding at the instance of the 
Crown, or of any person, and the answer so given shall 
not be used or be receivable in evidence against him 
in any trial or other proceeding against him thereafter 
taking place, other than a prosecution for perjury in 
giving such evidence." (p. 440) 

177. No statute providing for an investigation should impair 
any of the evidential privileges, (p. 440) 

178. Provisions excluding the general law of privilege such 
as those in the former Securities Act, the Succession 
Duty Act, the Election Act and formerly in the Liquor 
Licence Act, wherever they appear, should be repealed, 
(p. 441) 

179. Provisions of all statutes conferring power on tribunals 
other than courts to commit for contempt should be 
repealed, (p. 446) 

180. The Public Inquiries Act should provide that the 
powers of compulsion now exercised by tribunals other 
than courts may be exercised only by the Supreme Comt 



1282 Consolidtiird SuniDuiry of RecoinmendatioJis 

on a summary application made on behalf of the tri- 
bunal or of anyone with a special interest in the matter 
under inquiry, (p. 446) 

PROCEDURAL RIGHTS OF THOSE AFFECTED BY 
THE EXERCISE OF INVESTIGATING POWERS 

181. A considerable discretion should rest with the persons 
conducting inquiries, but there should be some rules 
made by the Statutory Powers Rules Committee for the 
guidance of those concerned with inquiries. It should 
be clear that what is stated in the rules is not all- 
inclusive, (p. 451) (Some recommendations as to matters 
to be incorporated in the rules are set out in recom- 
mendations 182-184.) 

1 82. Unless it would frustrate the purposes of the statute, any 
person substantially and directly interested in the sub- 
ject matter of an inquiry should have: 

(a) an opportunity to be heard on any relevant 
matter; and 

(b) a right to cross-examine witnesses in respect of 
relevant matters, (p. 451) 

183. Any person against whom allegations of misconduct 
have been made should have the right to be examined 
by his own counsel before he is examined by the Com- 
mission counsel, (p. 452) 

184. Unless restrained by statute, an investigating officer 
should have a discretion: 

(a) to hold an inquiry in private if in the circum- 
stances it would be unjust to hold it in public; and 

(b) to grant an adjournment to any person affected, 
enabling him to prepare a reply, (p. 452) 

APPEALS FROM OR REVIEW OF DECISIONS OF 
INVESTIGATING OFFICERS 

1 85. The right of appeal by way of stated case should remain 
in the Public Inquiries Act. (p. 457) 



Pari I (Volume 1) 1283 

186. The powers of the appellate court should be more 
clearly defined, (p. 457) 

187. Section 5(3) of the Public Inquiries Act should be 
amended to permit the commissioner to proceed with 
an incjuiry with respect to matters that are not in issue 
in a stated case. (p. 457) 

USE OF INFORMATION AND EVIDENCE OBTAINED 
ON STATUTORY INQUIRY 

188. There should be a statutory prohibition on the com- 
munication of information obtained in a statutory in- 
vestigation beyond the purposes of the relevant statute 
and the administration of justice, (p. 462) 

THE PUBLIC INQUIRIES ACT 

189. The Public Inquiries Act should be re-drafted, having 
regard to the recommendations made in Section 4 of 
Part I of this Report wdth respect to safeguards that 
should apply to all investigations, (p. 465) 

190. The only formula that should be used in conferring 
powers of investigation similar to those exercised by a 
commissioner under the Public Inquiries Act should be 
—"the provisions of the Public Inquiries Act should 
apply (Parts I or II, if divided into two parts) to investi- 
gations under this Act"— or w^ords to that effect, (p. 465) 

191. This formula should be substituted for all other formu- 
lae defining powers of investigation, e.g., "powers that 
may be conferred upon a commissioner appointed under 
the Public Inquiries Act" (Department of Education 
Act); "in the same manner as a court of record in civil 
cases" (Labour Relations Act); "as is vested in any court 
in civil cases" (Mining Act); "In like manner as the 
Supreme Court may in civil cases" (Registry Act); "as is 
vested in the Supreme Court for the trial of actions" 
(Securities Act, 1966); "like powers as the Supreme 
Court" (Workmen's Compensation Act), (p. 465) 



1284 Consolidated Summary of Recommendations 

192. A section similar to section 13 of the Inquiries Act of 
Canada, but in more precise language, should be in- 
cluded in the Act. (p. 465) 

193. Where the Public Inquiries Act is to apply to the exer- 
cise of a statutory power it should be so stated in the 
relevant statute, (p. 465) 

CORONERS 

194. A survey should be made to determine how many 
coroners are required in Ontario and in what areas they 
should be located, (p. 496) 

195. All coroners should be appointed coroners for Ontario 
but resident in a particular area. When a coroner ceases 
to reside in the area to which he is appointed he should 
cease to be a coroner, (p. 496) 

196. Political considerations ought not to enter into the 
appointment of coroners, (p. 496) 

197. The duties of the Supervising Coroner should be ex- 
pressly defined by statute and all coroners should be 
subject to his control, (p. 496) 

198. If chief coroners are appointed for cities of 100,000 
population and over, they should be subject to the con- 
trol of the Supervising Coroner, (p. 496) 

199. The purpose of a coroner's investigation should be de- 
fined either in the statute or by regulations, (p. 496) 

200. Regulations should be formulated, placing limitations 
on the nature of the information that a coroner is per- 
mitted to give out prior to an inquest, (p. 497) 

201. Inquests should normally be conducted by a coroner, 
but the Crown Attorney or anyone who claims to be 
affected by an inquest should have a right to apply to the 
Attorney General for an order appointing a magistrate 
or a commissioner or commissioners to conduct the in- 
quest in place of the coroner, (p. 497) 



Part I (Volumr 1) 1285 

202. The education and training of coroners should be in- 
tensified, (p. 497) 

203. The statute or regulations should define the purpose of 
an inquest and the duties of the coroner and the jury, 
(p. 497) 

204. Regulations should provide that persons who, in the 
opinion of the presiding officer, are substantially and 
directly interested, should have full right to appear by 
counsel and to call, examine and cross-examine wit- 
nesses, with discretion in the presiding officer to limit 
these rights where it appears they are vexatiously exer- 
cised or beyond what is reasonably necessary, (p. 497) 

205. Inquests should be held in public, except where national 
security may be involved, (p. 497) 

206. Coroners should be restrained from entering into public 
debate respecting matters that have been the subject of 
an inquest. But a coroner should not be restricted from 
advocating changes in the law. (p. 497) 

207. A coroner should not have power to make orders affect- 
ing the liberty of the subject or impose penalties, 
(p. 497) 

208. The recommendation which w^e have made with respect 
to the enforcement of orders issued in the conduct of 
public inquiries by application to the Supreme Court, 
should be adopted for coroners' inquests, (p. 497) 



Part II 

VOLUME 2 

ADMINISTRATION OF CIVIL AND 

CRIMINAL JUSTICE IN THE 

PROVINCE 



PROVINCIAL COURTS OTHER THAN THE 
SUPREME COURT OF ONTARIO 

Justices of the Peace 

209. The whole system pertaining to the office of justice of 
the peace should be reorganized, (p. 524) 

210. An establishment of justices of the peace should be set 
up for each magisterial jurisdiction, (p. 524) 

211. The appointment of all present justices of the peace in 
Ontario should be cancelled. Those qualified for the 
office should be reappointed. No more justices of the 
peace should be appointed in any case than are required 
to fill the necessary establishment, (p. 524) 

212. Men and women should be appointed to the office with- 
out discrimination and qualification should be the only 
criterion for appointment, (p. 525) 

213. All appointments should be to a magisterial jurisdiction, 
but a justice of the peace might be given duties beyond 
the magisterial jurisdiction, (p. 525) 

214. The senior magistrate should have supervisory power 
over the justices of the peace of his jurisdiction, (p. 525) 

215. Where a justice of the peace dies, or is absent from or un- 
able to perform his duties for more than thirty days, the 
senior magistrate of the jurisdiction should be required 
to report the facts to the Attorney General, (p. 525) 

1286 



Part II (Volume 2) 1287 

216. All justices of ihc peace should be paid a salary based 
on the demands on tlieir time as shown by a review of 
the duties they perform, (p. 525) 

217. All justices of the peace should be recjuired to take a 
prescribed course of training for the office and to attend 
prescribed refresher courses, (p. 525) 

218. The justices of the peace should be allowed a meaning- 
ful share of the judicial work in each jurisdiction so as 
to relieve the magistrates of those duties which appro- 
priately can be performed by well-trained justices of the 
peace, (p. 525) 

Magistrates' Courts 

219. All magistrates should be appointed to serve on a full- 
time basis, (p. 543) 

220. All magistrates, except the Chief Magistrate for Ontario, 
should receive the same salary, (p. 543) 

221. The office of deputy magistrate should be abolished, (p. 

544) 

222. For administrative purposes one magistrate in an area 
should be designated the senior magistrate, (p. 544) 

223. The salaries of magistrates should be equal to those of 
county court judges, (p. 544) 

224. Only those wath qualifications sufficient to command 
such salaries should be appointed to be magistrates, (p. 
544) 

225. All magistrates should be qualified lawyers, (p. 544) 

226. All magistrates should be provided with adequate staff, 
(p. 544) 

227. All cases in the magistrates' courts should be prosecuted 
by qualified lawyers, (p. 544) 

228. The practice of assessing costs in magistrates' courts 
should be abolished, (p. 544) 

229. Where a magistrate has levied a fine in a jurisdiction 
of which the accused is not a resident, and default in 
payment of the fine has been made, the magistrate 



1288 Consolidated Summary of Recommendations 

should be empowered to issue a warrant of commital 
which upon being backed by a justice of the peace 
wherever the defaulter is found would authorize the 
governor of the gaol in that jurisdiction to receive him. 

(p. 544) 

230. Adequate and proper accommodation should be pro- 
vided for all magistrates' courts, separate and apart from 
the accommodation provided for the administration of 
police forces, (p. 544) 

231. Provision should be made for an advisory judicial coun- 
cil on the appointment of magistrates, consisting of the 
Chief Justice of Ontario, the Chief Justice of the High 
Court, the Chief Judge of the County and District 
Courts, and the Treasurer of the Law Society of Upper 
Canada or his nominee. This council would advise the 
Attorney General on the appointment of magistrates, 
(p. 544) 

232. The advisory judicial council should be authorized to 
receive complaints concerning the conduct of magis- 
trates in the performance of their duties, and to make 
recommendations where w^arranted that an investigation 
be conducted, under the provisions of the Magistrates 
Act, to determine whether the magistrate involved 
should be removed from office, (p. 544) 

233. Magistrates should not be permitted to accept extra- 
judicial employment for remuneration, (p. 544) 

Juvenile and Family Courts 

234. As far as it is within the legislative competence of the 
province, rules of procedure should be formulated for 
the guidance of juvenile and family court judges by a 
Rules Committee appointed for that purpose by the 
Lieutenant Governor in Council. The Committee 
should be composed of representatives of the juvenile 
and family court judges, social w^orkers, the legal pro- 
fession, the Attorney General, and the public, (p. 569) 



Part II (Volume 2) 1289 

235. The Province should assume the eiuiic responsibility, 
financial and otherwise, for the administration of the 
juvenile and family courts, (p. 569) 

236. The Province should be divided into juvenile and 
family court areas, irrespective of municipal boundaries, 
having regard for the convenience of the public only. 

(p. 569) 

237. A full-time juvenile and family court judge should be 

appointed for each area. (p. 569) 

238. Proper detention facilities should be provided for each 
juvenile and family court area. (p. 569) 

239. A special training course should be established in at 
least one university to train students in all branches 
of the relevant law and social sciences to qualify them 
for appointment as juvenile and family court judges, 
after five years' service as probation officers in juvenile 
and family courts, (p. 570) 

240. If sufficient qualified graduates are available, such 
qualifications should be a statutory requirement for the 
appointment of a juvenile and family court judge, (p. 
570) 

241. Juvenile and family court judges should be appointed 
to that office and that office alone, (p. 570) 

242. There should be a central authority to organize, co- 
ordinate and supervise the staffing and administration of 
juvenile and family courts throughout the province so 
that they may operate as efficiently as possible and as 
conveniently as possible on a full-time basis, (p. 570) 

243. The jurisdiction of magistrates should not be conferred 
on juvenile and family court judges, (p. 570) 

244. The Attorney General, by his direction, should not be 
able to confer jurisdiction on juvenile and family court 
judges to try indictable offences with the election of 
the accused, or to hold preliminary hearings, (p. 570) 



1290 Consolidated Sinnmary of Recomynendations 

24ib. The procedural rules should not be the same for the trial 
of juveniles as for the determination of responsibility for 
maintenance, or the paternity of children, (p. 570) 

246. There should not be power to send a child to an indus- 
trial training school for breach of a city by-law or a 
provincial statute, (p. 570) 

247. The term "juvenile delinquent" should be abolished as 
far as it applies to provincial offences, (p. 570) 

248. The limitation of $20 per week maximum that a father 
may be ordered by a magistrate or juvenile court judge 
to pay for the maintenance of a child, should be re- 
moved, (p. 570) 

249. A standard of salaries for juvenile and family court 
judges equal to those of magistrates should be estab- 
lished and maintained, (p. 570) 

County and District Courts 

250. The involuntary jurisdiction of the county and district 
courts should be raised to $10,000 in personal injury 
cases, with the right to apply to a Supreme Court judge 
for an order transferring an action to the Supreme 
Court where it is made to appear that, by reason of the 
complexities of the law or facts, the action is one that 
should be tried in the Supreme Court, (p. 619) 

251. As far as possible, without imposing restrictions on the 
right of the accused to be tried at the first court of com- 
petent jurisdiction, all jury trials of persons charged 
with the more serious indictable offences should be con- 
ducted in the Supreme Court, (p. 619) 

252. The Province of Ontario should be divided into areas 
consisting of groupings of contiguous counties for the 
purpose of setting alternate dates for the sittings of the 
assizes and the General Sessions of the Peace within the 
respective areas, (p. 619) 

253. Administrative arrangements should be made to alter- 
nate the jury sittings of the Supreme Court and the 
General Sessions of the Peace so that there would be a 



Part II (Volume 2) 1291 

minimum of delay between connnitlal for trial and the 
actual trial of an accused, (p. 619) 

254. Subject to reconnnendation 251, where an accused 
has been conuniited for trial, the trial should be pro- 
ceeded with at the next sittings of an assize court or 
the General Sessions of the Peace in the area where the 
trial can most conveniently be held. (p. 619) 

255. The administration of justice, particularly in criminal 
cases, should be reorganized so that the trial of cases will 
be prompt and expeditious, (p. 619) 

256. An efficient, uniform, province-wide system should be 
set up to record the work of the courts in civil and crimi- 
nal cases, showing: 

In criminal cases 

(a) The date of arrest, or summons; 

(b) If in custody; 

(c) If on bail; 

(d) The date of committal for trial; 

(e) The election; 

(f) Bills preferred before the grand jury; 

(g) True bills found; 

(h) Date of arraignment and plea; 
(i) When the case is tried and the verdict; 
(j) Sentence. 

In civil cases 

(a) Jury cases entered for trial; 

(b) Non-jury cases entered for trial; 

(c) Jury trials held; 

(d) Non-jury trials, (p. 620) 

257. Monthly reports should be made to the Attorney 
General showing the progress of the work of all courts. 
The form of the report shoidd make it imperative to set 
out the number of civil and criminal cases that have 
been awaiting trial for one, two, three, four, or five 
months, etc., as the case may be. (p. 620) 



1292 Consolidated Summary of Recomm,endations 

258. The records and reports should be open for inspection 
by members of the press and public at all reasonable 
times, (p. 620) 

The Division Courts 

259. No change should be made concerning the informality 
of proceedings in the division courts, (p. 644) 

260. The Province should assume the financial and adminis- 
trative responsibility for the operation of the division 
courts and they should be completely reorganized, (p. 

644) 

261. In all counties the division courts should be combined 
into one court, and for administrative purposes the 
division court should be brought under the county court 
system, (p. 644) 

262. The offices of the division court ought not to be oper- 
ated in connection with any other employment, (p. 644) 

263. In less populous areas the county court clerk should 
perform the duties of the division court clerk. In the 
more densely populated areas there should be a deputy 
or assistant county court clerk, or a division court clerk 
attached to the county court clerk's office, to perform 
the duties of the division court clerk, (p. 644) 

264. The bailiff's duties should be performed by the sheriff 
of the county and his staff, (p. 645) 

265. Payment of officers on the fee system should be abol- 
ished, (p. 645) 

266. All division court officers should be government servants 
paid on a salary, (p. 645) 

267. The division court jury fee should be abolished, (p. 

645) 

268. Jury trials in the division court should be abolished, (p. 

645) 

269. The practice of appointing practicing members of the 
bar to be ad hoc judges of the division court should be 
discontinued, (p. 645) 



Part 11 {Volume 2) 1293 

270. Full-time division court judges should be appointed in 
York County to relieve county court judges of most of 
the division court work, and in other populous areas 
full-time division court judges should be appointed to 
try division court cases in contiguous counties. In less 
populated areas the county court judge should continue 
to be the division court judge, (p. 645) 

271. The following powers of committal to jail for contempt 
should be abolished: 

(a) Committal for wilful default under an order of a 
judge to pay a judgment debt; 

(b) Committal where it appears to the judge that the 
judgment debtor obtained credit from the judgment 
creditor, or incurred the debt or liability under false 
pretences, or by means of fraud or breach of trust; 

(c) Committal where it appears to the judge that the 
judgment debtor "has made or caused to be made any 
gift delivery or transfer of property or has removed 
or concealed any property wath intent to defraud his 
creditors. ..." (p. 645) 

272. Power to commit for failure to obey a summons or to 
be sw^orn, or for disturbing the process of the court, 
should remain, (p. 645) 

273. The confusion in the Division Courts Act relating to 
execution should be resolved by devising a simple pro- 
cedure whereby a judgment creditor can obtain a single 
writ of execution against the lands, goods and chattels of 
the judgment debtor, which writ may be filed with and 
executed by the sheriff of any county or district in 
Ontario, (pp. 645-46) 

274. The Division Courts Act, section 116, which provides 
that unless the judgment creditor consents to an exten- 
sion of time, "the issue of execution shall not be post- 
poned for more than 50 days from the sen'ice of the 
summons", should be repealed, (p. 646) 



1294 Consolidated Summary of Recommendations 

275. Provision should be made for service of documents by 
registered post in proper cases, or through local service 
officers on payment of a service fee by the sheriff, (p. 646) 

276. The tariff of fees and disbursements to be paid by liti- 
gants should be laid down by regulation, (p. 646) 

THE SUPREME COURT OF ONTARIO 

Trial Courts: High Court of Justice for Ontario 

277. The trial case load of the High Court of Justice for 
Ontario should be redistributed in accordance with the 
recommendations made with respect to the jurisdiction 
of the county and district courts, (p. 652) 

278. No change should be made in the circuit system of trial 
hearings of the High Court, (pp. 652-53) 

279. The appellate functions of the High Court and the exer- 
cise of its powers of judicial review should be reorgan- 
ized in accordance with recommendations 287 to 297. 
(p. 651) 

Appellate Courts 

280. A comprehensive reorganization of the appellate juris- 
diction of the courts should be undertaken, (p. 669) 

281. The reorganization should be undertaken not only with 
a view to the immediate and urgent necessities of the 
present, but particularly to meet the needs of the future 
as the population and economy of the Province grow, 
(p. 669) 

282. All appeals to the highest court of appeal in the Prov- 
ince should be heard by at least five judges, (p. 669) 

283. Rights of appeal should be enlarged rather than cur- 
tailed, and the method of appeal should be simplified, 
(p. 669) 

284. There should not be any addition to the number of 
judges of the Court of Appeal, but there should be a 
court to exercise an appellate jurisdiction inferior to 
that of the Court of Appeal, (p. 669) 



Part II (I'olumc 2) 1295 

285. The primary objective should be to reduce the expense 
and delay in getting a decision by more than one judge 
in tlie matter under review, (p. 669) 

286. No alteration should be made in appeals that lie to the 
county and district court judges, except where the deci- 
sion of the tribunal vitally affects rights, or substantial 
amounts of money are involved. In such cases an appeal 
should lie to the Supreme Court of Ontario, (p. 669) 

287. With the exception of appeals that should lie to the 
county and district court judges, and of some minor 
interlocutory appeals from the Master of the Supreme 
Court, all applications to the Supreme Court in the 
nature of appeals and judicial review should be heard 
by a court of at least three judges at the initial hearing, 
(p. 670) 

288. An Appellate Division of the High Court of Justice for 
Ontario should be constituted on the model of the 
English system, but with an extended jurisdiction, (p. 
670) 

289. The Appellate Division of the High Court of Justice 
should be required to sit with a quorum of an uneven 
number, not fewer than three and not more than five 
judges, (p. 670) 

290. The Appellate Division of the High Court should be 
presided over by the Chief Justice of the High Court 
for Ontario, (p. 670) 

291. The Chief Justice of the High Court should assign 
members to the court from time to time, having regard 
for their experience and expertise particularly with 
regard to administrative law. (p. 670) 

292. The jurisdiction of the Appellate Division of the High 
Court and the Court of Appeal should be defined by 
statute on definite principles, (p. 670) 

293. The procedure on appeals should be left to the Rules 
Committee as presently constituted under the Judica- 
ture Act. (p. 670) 



1296 Consolidated Summary of Recommendations 

294. If the Attorney General wishes an advisory committee 
with which to consult prior to his recommending legis- 
lation which would define the jurisdiction of the courts, 
such a committee should be constituted on an ad hoc 
basis and without legislative power, (p. 670) 

295. The Appellate Division of the High Court of Justice 
should hear: 

(a) All applications for judicial review in the first 
instance; 

(b) All appeals by way of stated case, including those 
from administrative tribunals; 

(c) All appeals from administrative tribunals, includ- 
ing self-governing bodies, except from the Lands 
Tribunal; 

(d) All appeals from judgments of judges of the 
county and district courts and surrogate courts exer- 
cising a compulsory jurisdiction, as persona designata 
and in their capacity as judges of the court, but not 
including matters heard while exercising the optional 
jurisdiction of the Supreme Court; 

(e) All division court appeals; 

(f) All appeals from the Master of the Supreme 
Court, except decisions in minor interlocutory 
matters; 

(g) All habeas corpus matters now conferred on the 
Court of Appeal under the Habeas Corpus Act, sec- 
tion 8, with further appeal to the Court of Appeal as 
of right by the person remanded into custody, (pp. 
670-71) 

296. Procedure on appeal to the Appellate Division of the 
High Court should be by way of a summary notice of 
motion, except where the appeal is from a judge at 
trial, (p. 671) 

297. There should not be monthly lists for the Appellate 
Division of the High Court, but a running list to which 
cases can be added from day to day. (p. 671) 



Part II (Volume 2) 1297 

298. Appeals should lie to the Court ot Appeal from decisions 
of the Appellate Division of the High Court of Justice, 
with leave of the Court of Appeal, (p. 671) 

(As to appeals in summary conviction matters involv- 
ing the construction of the B.N. A. Act, or any other 
statute see recommendation 345.) 

299. Appeals should lie to the Court of Appeal from: 

(a) All final judgments of judges of the High Court 
of Justice; 

(b) All final judgments of the surrogate courts and 
county and district courts where the judgment is one 
that would be within the alternative jurisdiction of 
the Supreme Court; 

(c) The Lands Tribunal; 

(d) Judgments of the Appellate Division of the High 
Court, with leave of the Court of Appeal, where in 
the opinion of the Court of Appeal important ques- 
tions of law are involved and in habeas corpus matters. 

(p. 671) 

EXTRA-JUDICIAL EMPLOYMENT OF 
JUDICIAL PERSONNEL 

300. As far as possible the regular judicial duties of judges 
should not be interfered with by their appointment to 
extra-judicial duties, (p. 721) 

301. A judge of the Court of Appeal, the High Court of 
Justice, or a county or district court, should not be 
asked to perform extra-judicial duties without first 
getting the approval of the Chief Justice of Ontario, the 
Chief Justice of the High Court, or the Chief Judge of 
the County and District Courts respectively, (p. 721) 

302. Where judges are asked to perform extra-judicial duties, 
the provisions of the Judges Act should be strictly 
observed. No judge should be paid or permitted to 
receive remuneration other than the statutory salai-y and 
allowances provided for judges, (p. 721) 



1298 Consolidated Summary of Recommendations 

303. The Extra-judicial Services Act, the County Judges Act 
and the SuiTOgate Courts Act should be amended to 
conform to the provisions of the Judges Act. (p. 722) 

THE MACHINERY OF JUSTICE AND 
THE INDIVIDUAL 

Power of Arrest 

304. In no case should power to create offences for which 
a person may be arrested without a warrant be delegated 
to the Lieutenant Governor in Council, a minister or 
any other body. (p. 741) 

305. Powers to arrest without a ^varrant under the Highway 
Traffic Act should be restricted to those cases where 
there is a failure on the part of a driver of a motor 
vehicle to identify himself and the owner of the vehicle, 
without reasonable cause being shown, and where the 
driver has no legal right to have the motor vehicle on 
the highway, (p. 741) 

306. There should be no power to arrest w^ithout a warrant 
under the Liquor Control Act, except where a peace 
officer finds a person committing an offence and that 
person refuses to gi\c his name and address, or where 
there are reasonable grounds to believe that the person 
will not be found at the address given, or in the case of 
drtnikenness, where it is necessary to protect the person 
from injury or injuring others, (p. 741) 

307. A system should be devised whereby persons resident 
outside of Ontario should ha\e the opportunity to pay 
money to a peace officer as security for their attendance 
in court, this sum to be applied to any fine that may be 
levied when the case comes before the court. This pro- 
cedure should apply only to offences under the Highway 
Traffic Act, the Liquor Control Act and the Game and 
Fish Act. In such cases a precise statement should be 
sent to the accused to show how the money has been 
applied, (p. 742) 



Pari II (Volume 2) 1299 

308. Warrants should not be issued for offences under the 
provincial law, except where it can be sliown that the 
accused is in liiding or cannot be found, (p. 742) 

309. Where a warrant is applied for, the information should 
clearly state the grounds on which it is believed that a 
summons will not be effective, (p. 742) 

310. A warrant should never be issued, unless it is shown 
that a smnnions would not likely be effecti\e. (p. 742) 

Bail Procedure 
Before Arraignment 
Arrest for Provincial Offences 

311. Police officers should be authorized by legislation in 
proper form to release arrested persons upon service 
upon them of a notice to appear in answer to the charge 
for which they have been arrested, (p. 750) 

312. Arrested persons should be released on their own recog- 
nizance, where bail is thought necessary, unless it can 
be clearly demonstrated that injury to the accused per- 
son or other persons will likely follow, (p. 750) 

313. Sureties and the deposit of money as security for the 
appearance of the accused should only be rec^uired in 
exceptional cases, (p. 750) 

314. Arrested persons should be permitted to pledge their 
own real property as security, or real property in which 
they have an interest, without legalistic technicalities 
being observed, (p. 750) 

315. It should be made an offence to fail to appear in response 
to a notice to appear, or pursuant to a recognizance, (p. 

750) 

Arrest for Offences Under Criminal Code 

316. A complete reorganization of the disposition of justices 
of the peace and the allocation of duties should be 
undertaken so that there will be a minimum of delay in 
securing bail pending arraignment, (p. 750) 



1300 Consolidated Summary of Recommendations 

317. Legalistic technicality in the approval of property bail 
should be abandoned. Hundreds should not be made to 
suffer because of the risk of an occasional fraud, (p. 750) 

318. Representations should be made to the Federal Govern- 
ment to adopt the procedure we recommend in Chapter 
48 for release by police officers of those charged with 
minor offences, upon service of a notice to appear for 
trial, (pp. 750-51) 

319. Failure to appear pursuant to a notice, as recommended 
in the preceding recommendation, should be included 
as an offence under section 125 of the Criminal Code, 
(p. 751) 

On Arraignment 

320. More careful consideration should be given in fixing 
bail on arraignment and its amount than is now given 
to it. (p. 754) 

On Committal 

321. Where there is little likelihood that the accused wdll not 
appear to stand his trial, the requirements of bail should 
be kept to a minimum, (p. 754) 

On Appeal from Conviction 

322. A system should be established under which every 
appeal from a conviction on indictment should be inves- 
tigated by the Attorney General to determine whether 
the convicted person ought not to be admitted to bail 
pending the hearing of the appeal, (p. 754) 

323. The Summary Convictions Act should be amended to 
permit an appeal from all convictions for offences under 
Ontario statutes, upon the mere sen'ing and filing of a 
notice of appeal without any sureties for payment of 
monetary sums or costs, (p. 754) 

324. In those cases where imprisonment is imposed for a 
provincial offence, without the option of a fine, provi- 
sion should be made for release on bail without sureties 
pending the hearing of an appeal unless the need for 
sureties has been clearly demonstrated. No bond for 
security for costs should be required, (p. 754) 



Part II (Volume 2) 1301 

325. Simple and expeditious rules of procedure for appeal 
from conviction for provincial offences should be devised 
so that an appeal will not fail by reason of some pro- 
cedural defect in the proceedings taken, (p. 754) 

Publication of Proceedings Before Trial 

326. There should be no further restriction provided by law 
on the reporting of proceedings at preliminary inquiries, 
(p. 769) 

327. Where an application is made by an accused person for 
a change of venue on the ground that the accused can- 
not get a fair trial in the locality where the charge is 
laid, the Attorney General ought not to oppose the 
application if it is based on reasonable grounds, (p. 769) 

328. The Attorney General should act promptly to prosecute 
for breaches of the law respecting contempt of court, 
and not leave the initiation of prosecutions to the indi- 
viduals affected or to the court, (p. 769) 

329. Departmental rules should be laid down for the guid- 
ance of police officers and others in authority, restrain- 
ing them from giving interviews for publication that 
may tend to interfere with the course of justice, (p. 769) 

330. A self-governing council should be established in Ontario 
to control and discipline the press and other news media 
with respect to the publication of news and comment 
that may tend to prejudice the fair trial of an accused 
should a charge later be laid, unless it is shown that 
the publication is in the public interest, (p. 769) 

The Grand Jury 

331. If the Supreme Court is given power to review the suf- 
ficiency of the evidence on a committal for trial on 
certiorari the grand jury system should be abolished. 

(p. 782) 

332. Provision should be made that another body, or an 
official, should perform the functions of the grand jury 
of inspecting public or semi-public institutions, (p. 781) 



1302 Consolidated Summary of Recommendations 

333. The sheriff should be made responsible for performing 
the functions of the grand jury with respect to general 
gaol delivery, (p. 781) 

334. Regardless of whether or not the grand jury is abolished, 
the Supreme Court should be given wider powers to 
review on certiorari the sufficiency of the evidence to 
support a committal for trial, (p. 782) 

Appeals From Convictions For Offences Against 
the Provincial Law 

335. The Summary^ Convictions Act should be amended to 
give effect to recommendations 336 to 343, inclusive, 
(p. 793) 

336. A person convicted of a provincial offence should be per- 
mitted to appeal by way of stated case, without giving 
security for the penalty imposed or for the fees and 
costs incurred or which may be incurred in the appeal. 

(p. 793) 

337. The liability of an unsuccessful appellant to pay costs 
to the Crown on an appeal by way of stated case should 
be abolished, (p. 793) 

338. A person convicted of a provincial offence should be 
permitted to appeal to the county or district court with- 
out giving security for the penalty imposed, the costs 
incurred or the costs of the appeal, (p. 793) 

339. Simple rules of procedure for an appeal from a convic- 
tion for a provincial offence should be established which 
should be procedural only and should not go to the 
jurisdiction of the appeal court, (p. 793) 

340. The appeal court should have jurisdiction to extend 
the time for appealing, (p. 793) 

341. The appeal court should have a discretion to allow an 
amendment of the proceedings, as long as there would 
be no substantial prejudice to the parties involved. The 
appeal court should not have power to amend the charge 
so as to substitute another offence for the offence 
charged, (p. 793) 



Pari 11 (Volume 2) 1303 

342. The liability of an unsuccessful appellant to pay the 
costs of the Crown on an appeal should be abolished, 
(p. 793) 

343. The appeal should be on the record, with power in the 
court to hear further and other evidence where it con- 
siders that it is in the interest of justice in the case to 
do so. The right to call further evidence on the appeal 
should not be restricted to those cases where it must 
be demonstrated to the satisfaction of the court that the 
evidence sought to be produced was unknown and not 
available at the trial, (p. 793) 

344. The right of appeal by the Crown by way of stated case, 
or to the county or district court from an acquittal for a 
provincial offence, should be abolished except in cases 
involving the construction of the B.N. A. Act or any 
other statute, (pp. 793-94) 

345. The Attorney General should have the right to appeal 
directly to the Court of Appeal, upon obtaining the 
leave of that court, on a question of law involving the 
construction of the B.N. A. Act or any other statute 
where the accused has been acquitted of a provincial 
offence by a magistrate, justice of the peace, a county or 
district court judge, or by the order of a Supreme Court 
judge upon a stated case. (p. 794) 

346. On appeals under the preceding recommendation, the 
accused should not be required to pay the costs of the 
appeal in any case and in granting leave the Court of 
Appeal should have the power to impose terms upon 
the Attorney General to pay the costs of the respondent, 
(p. 794) 

Court Reporting 

347. The court reporting system should be brought com- 
pletely under the control of the Attorney General, (p. 

811) 

348. There should be a Director of court reporters for the 
Province, (p. 811) 



1304 Consolidated Summary of Recommendations 

349. A planned system of educating and training court re- 
porters should be established under the direction of the 
Director who should set standards of qualifications, (p. 
811) 

350. Candidates for appointment should be required to pass 
examinations and to meet fixed standards, (p. 811) 

351. Where there is evidence that a court reporter is not 
maintaining proper standards of work, he should be 
required to sit for re-examination, (p. 811) 

352. Adequate remuneration should be provided for all court 
reporters, (p. 811) 

353. A hierarchy of court reporters should be established, 
with opportunities for advancement and promotion 
from one category to another, (p. 811) 

354. One of the functions of the Director of court reporters 
should be to assist in the development of good court 
reporters by providing refresher courses and educational 
assistance, (p. 812) 

355. Provision should be made that, upon adequate cause 
being shown, court reporters may be disciplined, or in 
proper cases their services terminated, (p. 812) 

356. A code of ethics should be prescribed so that reporters 
may know what standards are required of them. (p. 812) 

357. Provisions should be made for the relief of court report- 
ers who, by reason of the pressure of court sittings, may 
be unreasonably delayed in getting out transcripts that 
have been ordered, (p. 812) 

358. Transcripts for criminal proceedings should have prece- 
dence, (p. 812) 

359. The giving and receipt of premiums or inducements to 
give precedence in the preparation of transcripts should 
be expressely prohibited, (p. 812) 

360. A special statute should be passed making proper pro- 
vision for court reporters, as has been done in New 
Brunswick and Nova Scotia, (p. 812) 



Part II (Volume 2) 1.S05 

Privileged Communications 

361. No changes should be made in the law concerning 
privileged communications, (p. 882) 

362. Section 143 of the Highway Traffic Act should be 
repealed, (p. 832) 

363. Any compulsion to make statements imposed on those 
invoked in highway traffic accidents should go no 
further than to rec][uire them to report the accident and 
give the names of persons involved and known witnesses, 
together with a statement of injury sustained, if any. 
(p. 832) 

364. All other statements concerning the accident should be 
on a voluntary basis, open to inspection and admissible 
in any proceedings according to the relevant laws of 
evidence, (p. 832) 

365. The names of witnesses and statements made by them 
should likewise be open to inspection, and there should 
be no special statutory restraint on their admissibility 
in evidence in any proceedings, (p. 832) 

Reimbursement of Innocent Persons Suffering 
Wrongful Convictions 

366. Statutory authority should be conferred on the Lieu- 
tenant Governor in Council to make ex gratia payments 
of compensation on the recommendation of an ad hoc 
tribunal consisting of judges of the Supreme Court of 
Ontario appointed from time to time to consider cases 
where it is claimed that a person has been imprisoned 
and that his innocence can be clearly established, (p. 
844) 

Compensation for Victims of Crime 

367. Persons w^io sustain injui^ or property damage while 
engaged in assisting peace officers in arresting any person 
or in preserving the peace, should be given a legal right 
to be compensated by the Province, (p. 854) 



1306 Consolidated Summary of Recommendatio7is 

368. Persons who sustain injury or property damage while 
exercising their legal rights to effect an arrest or preserve 
the peace should be given a legal right to compensation 
by the Province, (p. 854) 

369. Such rights to compensation should extend to depen- 
dants, (p. 854) 

370. Where the right to compensation or the amount of com- 
pensation cannot be settled by negotiation, the claimant 
should have a right of action in the courts against the 
Province, (p. 854) 

Compensation for Jurors and Witnesses 

371. All w^itnesses other than qualified experts should be paid 
at the rate of at least $15 per day, with proper travelling 
and accommodation allowances, (p. 863) 

372. There ought to be a statutory obligation on statutory 
tribunals to pay witness fees for all witnesses summonsed 
at the instance of a tribunal, (p. 863) 

373. Where witnesses are summonsed at the instance of a 
party to a cause before a tribunal, they should be en- 
titled to be paid witness fees by the party requiring 
them to be summonsed, (p. 863) 

374. Where costs are awarded against an opposite party, the 
tribunal hearing the matter should have power to dis- 
allow, as part of the costs, fees for witnesses unnecessarily 
called, (p. 863) 

375. The scale of witness fees should be the same for all 
courts and tribunals, (p. 864) 

376. The provincial government should assume the entire 
responsibility for jury fees and allowances, (p. 864) 

377. Jury fees should be raised to provide adequate com- 
pensation for wage-earners requested to render jury 
service, (p. 864) 



Part 11 (Volume 2) 1:^07 

378. Juries for the trial of civil cases, other than those arising 
out of defamation, should be abolished, (p. 864) 

FUTURE FINANCIAL RESPONSIBILITY FOR THE 
MACHINERY OF JUSTICE IN THE PROVINCE 

379. The Province of Ontario should assume the entire 
financial responsibility for the machinery of justice, 
including the provision and maintenance of all necessary 
facilities and the appointment and remuneration of all 
persons necessary to administer justice, with the excep- 
tion of the members of municipal police forces and those 
officials appointed by the Federal Government, (p. 927) 

380. No person convicted for an offence should be required 
to subsidize the expense of his trial by having costs 
thereof levied against him. (p. 927) 

381. All fines imposed as penalties for the contravention of 
any statute (except the fines that are payable to the 
Federal Government) should be wholly paid over to the 
Province of Ontario, (p. 928) 

382. No person, acting either as informer or prosecutor or in 
any other capacity, should be entitled to any share or 
proportion of any fine levied, (p. 928) 

383. The practice of municipal solicitors, by-law enforcement 
officers and others acting as prosecuting attorneys upon 
trials for violations of municipal by-laws, or upon 
private prosecutions, should be revised, and all prosecu- 
tions should be conducted by crown attorneys or under 
their supervision. It may not be practical for crown 
attorneys to attend at all trials for minor offences, but 
they should have supervision over all prosecutions, (p. 
928) 

384. The Province should, by agreement, make financial 
adjustments w'ith those municipalities that have pro- 
vided suitable facilities for the administration of justice, 
(p. 928) 



1308 Consolidated Summary of Recommendations 

385. The Province should enter into whatever financial 
arrangement may prove practicable with the Govern- 
ment of Canada, whereby the Government of Canada 
would pay to the Province a proportion of the costs to 
the Province of administering the laws of Canada in 
the provincial courts, in cases where fines or penalties 
imposed are paid to the Government of Canada, (p. 928) 

THE ROLE OF THE ATTORNEY GENERAL 
IN GOVERNMENT 

Crown Attorneys 

386. Crown attorneys should not be permitted to collect 
fees. They should all be paid a definite salary, (p. 955) 

387. The salaries of crown attorneys should be increased, 
relative to the authority and responsibility of the office, 
(p. 955) 

388. The Province should be divided into districts with a 
Senior Crown Attoraey appointed for each district w^ho 
would be responsible, under the Senior Crown Attorney 
for the Province, to the Director of Public Prosecutions. 

(p. 955) 

Supervisory Responsibility for Legislation 

389. The preparation of all legislation should be supervised 
by a legislative branch of the Attorney General's Depart- 
ment, (p. 955) 

390. Strict procedure should be adopted for the preparation 
of legislative bills. While the departmental minister 
should be responsible for the social policy of all bills, 
it should be clearly recognized that the Attorney 
General is constitutionally responsible for the legal 
policy of all bills, (p. 955) 

391. When a department proposes new legislation, a memo- 
randum embodying the principles of legislation should 
be submitted for approval to the Cabinet so that the 
government's policy may be determined before the 
drafting begins, (p. 955) 



Part II (Volume 2) 1309 

892. When government policy lias been determined, the 
preparation of the draft bill should be undertaken by 
the legislative branch, under the control and supervision 
of the Attorney General. The drafting of the bill should 
be undertaken as early as possible. It should be carried 
on by the draftsman assigned by the legislative branch 
of the Attorney General in consultation with the ad- 
ministrative officials and the legal officer of the depart- 
ment concerned. Instructions on specific questions as 
to the social policy of the statute should come from the 
officers of the department concerned, subject to the 
control and direction of the minister; but the Attorney 
General should control and direct the general legal 
policy to be applied in the preparation of the draft bill, 
(p. 956) 

Reorganization of Legal Services 

393. The legal services of the government should be re- 
organized so that all legal services come under the direc- 
tion of the Attorney General, (p. 956) 

394. Legal officers in departments should have training in the 
Attorney General's Department, (p. 956) 

Attorney General Act 

395. There should be an Attorney General Act expressly 
defining the functions and role of the Attorney General 
in government and requiring him to submit an annual 
report to the Legislature, (p. 956) 

396. Statutory provision should be made that the Attorney 
General must be a member of the Bar of Ontario, (p. 
956) 



Part III 

VOLUME 3 

SAFEGUARDS AGAINST UNJUSTIFIED 

EXERCISE OF CERTAIN SPECIAL 

POWERS 

EXPROPRIATION PROCEDURE 

Powers of Expropriation 

397. The right of an owner ^vhose property has been expro- 
priated, to be paid compensation, should be secured in 
the Constitution, (p. 1083) 

398. The Legislature should not confer the power of expro- 
priation on any body or person unless it is clear that the 
power is inescapably necessaiy in the interest of good 
government, and that there are adequate controls over 
its exercise, (p. 1083) 

399. There should be a complete review^ of all of the powers 
of expropriation with a view to determining the purpose 
and necessity of each one and the adequacy of statutory 
safeguards controlling their exercise, (p. 1083) 

400. The less responsible to public opinion the particular 
body may be, the more reluctance there should be in 
conferring a power of expropriation on it. (p. 1083) 

401. Where the power of expropriation is conferred on any 
body, the identity of the person or body who may exer- 
cise the power should be stated clearly in the legis- 
lation, (p. 1083) 

402. Where the Legislature has decided to encroach on civil 
rights by creating a new power of expropriation, it 
should do so in clear and unambiguous language that 
expresses the intention in readily recognizable form. 

1310 



Pari III (Volu)nr 3) i:Ul 

The direct and proper way to do this is to use the verb 
"expropriate" in the operative slatutory provision, (p. 
1083) 

403. Where the Legishiture has decided to confer on any 
body the powers of expropriation, it should know and 
state in clear and precise language the purpose for which 
it is conferring the power, (p. 1083) 

Control of Powers of Expropriation 

404. An approval system should be provided to control final 
decisions to expropriate, (p. 1084) 

405. Except in unusual circumstances before final approval 
is given to the expropriation, persons affected by a pro- 
posed expropriation should be given an opportunity to 
be heard at a formal inquiry. In unusual circumstances, 
the Lieutenant Governor in Council should have power 
to permit the expropriating authority to proceed after 
proper approval without following the inquiry pro- 
cedure, (p. 1084) 

406. The basic principle which should dictate the selection 
of the approving authority is that the approving author- 
ity should be in a position to accept clear political 
responsibility for the expropriation decision finally 
made. (p. 1084) 

407. Generally, the Minister who is charged with the adminis- 
tration of a statute should control and be responsible 
for and approve of expropriations made under that 
statute, (p. 1084) 

408. The recommended inquiry-approval procedure should 
apply to municipalities. A municipality should be its 
own approving authority, except where the power to 
expropriate land is exercised for a purpose other than 
the purposes of the municipal body— such as the disposal 
of the land expropriated to private persons or bodies for 
their own purposes. In such cases the exercise of the 
power of expropriation should be approved by the 
Minister of Municipal Atfairs. (p. 1084) 



1312 Consolidated Summary of Recomjnendations 

409. An expropriation under the Public Works Act for the 
benefit of a department, other than the Department of 
Public Works, should be subject to the approval of the 
minister of the relevant department and not the Minis- 
ter of Public Works, (p. 1084) 

410. Expropriations by the Municipality of Metropolitan 
Toronto should be approved by that body in the same 
manner as expropriations by other municipalities, and 
not by the Minister of Municipal Affairs, (p. 1084) 

411. Expropriations by all school boards should be subject 
to the approval of the Minister of Education, (p. 1084) 

412. The inquiry officers in the recommended inquiry- 
approval procedure should be appointed by the Attor- 
ney General on a permanent or ad hoc basis, (p. 1085) 

413. The statutory inquiry procedure in the United King- 
dom, which is followed prior to compulsory purchases, 
is a useful guide to be followed in establishing the pro- 
cedure in Ontario, (p. 1085) 

Procedure for Inquiry and Approval 

414. The expropriating authority should give adequate 
notice of its intention to expropriate to all persons 
affected, (p. 1085) 

415. If the person or persons affected desire to exercise their 
right to a hearing, they should so advise the approving 
authority within a stated time. (p. 1085) 

416. If no persons notify the approving authority that they 
desire a hearing, then that body may authorize the pro- 
posed expropriation to proceed. If any affected person 
or persons notify the approving authority that they 
desire to be heard, then it should appoint a date, time 
and place for an inquiry and so notify all interested 
parties. The Attorney General should appoint the 
inquiry officer, (p. 1085) 

417. Prior to the hearing, the expropriating authority should 
deliver to all interested parties a notice indicating the 
grounds upon which it intends to rely at the hearing, 
together with a list of any documents (including maps 



Part III (roliune 1) 1313 

and plans) which ihc autliority intends to use at the 
hearing, (p. 1085) 

418. The parties at the hearing should be entitled to present 
their own cases or to be represented by members oi the 
legal profession or laymen, (p. 1085) 

419. The expropriating authority should present its case first 
and have a right of reply following the case for the 
objectors. Cross-examination of witnesses should be 
allowed. The ordinary rules of evidence should not 
apply. Hie main criterion for the admissibility of evi- 
dence should be its relevance. Hearsay evidence should 
be admitted if, in the opinion of the inquiry officer, it 
may have probative value, (pp. 1085-86) 

420. The merits of the expropriating authority's general 
policy should not be considered relevant, but alternative 
routes or sites should be relevant. The soundness, fair- 
ness and necessity of taking the particular piece of land 
described in the proposed expropriation plan, should 
be the main issue at the inquiry, (p. 1086) 

421. The inquiry^ officer should have the right to inspect the 
site of the proposed expropriation, either in the presence 
of the parties or alone, (p. 1086) 

422. Following the presentation of the evidence, all parties 
to the proceeding should be entitled to present argu- 
ment to the inquiry officer, (p. 1086) 

423. The report of the inquiry officer should contain a sum- 
mar)' of the evidence and arguments advanced by the 
contending parties, the inquiry officer's findings of fact, 
and his opinion on the merits of the application with 
reasons therefor, (p. 1086) 

424. After receipt of the report, the approving authority 
should consider it and decide to authorize (with or 
without modification), or not to authorize the proposed 
expropriation, giving written reasons for its decision. 
No modification should extend the expropriation to 
land which was not included in the original plan of 
expropriation, unless the parties affected consent, (p. 
1086) 



1314 Consolidated Summary of Recommendations 

425. A time limitation should be fixed within which expro- 
priation proceedings may be challenged. The provision 
for the time limitation should contain safeguards con- 
cerning the rights of persons affected who have had no 
notice of the proceedings, and the rights of all parties 
where the expropriating authority has acted without 
statutory authority, (p. 1086) 

426. An application to set aside or quash an expropriation 
should be made to the Appellate Division of the High 
Court of Justice for Ontario -which we recommend in 
Chapter 44. (p. 1086) 

427. Where the recommended inquiry approval procedure 
is followed, the owner should have the right to elect 
whether the compensation should be fixed as of the date 
that the notice of the hearing before the inquiry officer 
is sei'^ed, or as of the date of the registration of the plan, 
or the date that the notice of expropriation is serv^ed, or 
as of the date on which possession is given, (p. 1087) 

428. The expropriation plan should be registered within a 
stipulated period after approval has been given, or, 
where leave is granted to proceed without the incjuiry 
procedure, within a stipulated period after leave is 
granted, on pain of having either the expropriation lapse 
or of being liable to pay compensation by reason of the 
delay, or both. The period of six months from the date 
of the order authorizing the expropriation provided for 
by section la (7) of the Expropriation Procedures Act 
is much too long. (p. 1087) 

429. The phrase "where an expropriating authority has exer- 
cised its statutory powers to expropriate land", used in 
section 4(1) of the Expropriation Procedures Act, 
should be clarified, (p. 1087) 

430. Provision should be made for compensation in proper 
cases for repairs or improvements to expropriated 
property between the date of the expropriation and the 
date of the service of the notice under section 5 (1) of 
the Act. (p. 1087) 



Purl 111 {Volume 3) 1315 

431 . The owner-occupant of the expropriated land should be 
served with the notice of the expropriation under sec- 
tion 5(1) of the Expropriation Procedures Act within 
a time less than the sixty day period provided for in 
that section. This service could be made first and the 
remaining services made thereafter, (p. 1087) 

432. The notice of expropriation, Form 1 , should be amended 
to include: 

(a) A statement that the owner has the right to in- 
voke the negotiation procedure set out in section 9a 
of the Expropriation Procedures Act, and that he 
must do so before proceeding to arbitration unless the 
parties otherwise agree; 

(b) A statement that the owner may consult a solici- 
tor to advise him as to his legal rights, and that the 
expropriating authority will pay the preliminary costs 
of the solicitor fixed according to a prescribed tariff, 
(pp. 1087-88) 

433. The offer of compensation under section 8 of the Expro- 
priation Procedures Act in most cases should be made 
much earlier than six months after the date of registra- 
tion of the plan. (p. 1088) 

434. Provision should be made for such additional personnel 
for the Board of Negotiation as may be necessary to 
satisfy future needs, (p. 1088) 

435. The expropriating authority should be required to take 
possession of the land, with all the attendant liabilities, 
on the date fixed for giving possession in the notice 
under section 19(1) of the Expropriation Procedures 
Act, or on a date fixed by the judge, (p. 1088) 

436. The expropriating authority, subject to "an adjustment 
of the date" under section 19 (3), should be required to 
give a minimum of three months' notice of possession 
under section 19(1) of the Expropriation Procedures 
Act. (p. 1088) 



1316 Consolidated Summary of RecommendatioJis 

437. The notice of possession under section 19(1) of the 
Expropriation Procedures Act should contain a state- 
ment of the options available to the o^vner— specifically, 
that he has the right to apply to the judge for an order 
extending the time, and that the expropriating authority 
has a corresponding right to apply for a reduction of the 
time specified in the notice, (p. 1088) 

438. The full amount of compensation as estimated by the 
expropriating authority should be offered to the owner 
as a condition precedent to the obtaining of possession. 

(p. 1088) 

439. The payment of fees and expenses to the arbitrator by 
the parties to the arbitration in expropriation proceed- 
ings should be abolished, (p. 1088) 

A Lands Tribunal 

440. A Lands Tribunal, similar to the Lands Tribunal in 
England, should be established with jurisdiction to 
determine compensation in all cases where the power 
of expropriation is exercised, and in those cases where 
statutoiy powers to acquire rights over land are exer- 
cised, (pp. 1088-89) 

441. The recommended Lands Tribunal should determine 
compensation for expropriations under the Ontario 
Energ)^ Board Act, 1964. (p. 1089) 

442. Arbitrations should be heard by at least three members, 
one of whom should be a chairman or vice-chairman 
(who should be a qualified lawyer), except where the 
amount claimed is less than $1,000.00, in which case the 
arbitration might be conducted by one member, (p. 
1089) 

443. There should be a right of appeal from the decision of 
the proposed Lands Tribunal to the Court of Appeal 
on all questions of law and fact. (p. 1089) 

444. The government should make available a series of pub- 
lished reports of reasons for awards by the Lands Tri- 
bunal, (p. 1089) 



Part III (Volume 3) 1317 

445. There should be uniformity of procedure to govern 
both the prc-hearing stage and the hearing stage of 
arbitration proceedings, (p. 1089) 

446. Specific rules should be drawn governing the procedure 
for the recommended Lands Tribunal, (p. 1089) 

Arbitration Procedure 

447. The Expropriation Procedures Act should expressly 
provide that a notice of arbitration is to be ser\'ed where 
the parties agree to forego negotiation proceedings, (p. 
1089) 

448. The claimant should set forth in his notice of arbitra- 
tion, or in his reply to a notice served by the expropriat- 
ing authority, a simple statement of the nature of his 
claim. The tribunal should be empowered in proper 
cases to order further particulars. In proper cases, the 
expropriating authority should be required, at the risk 
of costs, to admit or deny elements of compensation 
claimed, (p. 1089) 

449. The parties to expropriation proceedings should be 
required to produce to the parties adverse in interest, 
copies of the following documents relating to the evi- 
dence to be given by expert witnesses: 

(a) Plans and valuations of the land which is the 
subject of the proceedings, including particulars and 
computations in support of such valuations, which it 
is proposed to put in evidence; 

(b) A statement of any plans, prices, costs, or other 
particulars, relating to properties other than the land 
in question which are proposed to be given in evi- 
dence, or a statement that no such plans, prices, costs 
or particulars will be relied upon. (p. 1090) 

450. The adoption of provisions similar to those contained 
in Rule 42 (6) of the Lands Tribunal Rules in England 
which enable the Tribunal to adjourn the hearing on 
such terms as to costs or otherwise as it thinks fit where 
plans, valuations or particulars, which appear to the 
Tribunal not to have been sent to the Registrar, are 
sought to be relied upon at the hearing, (p. 1090) 



1318 Consolidated Summary of Recom,mendations 

451. Any party to the proceedings should have a right to 
apply to the Registrar of the Tribunal for an order for 
production and inspection of any documents (other 
than privileged communications) which the Registrar 
may deem properly producible and relevant to the issues 
involved in the arbitration, (p. 1090) 

452. The Registrar of the proposed Lands Tribunal should 
have the power to order examinations for discovery to 
be held in special cases where an examination is shown 
to be necessai^. (p. 1090) 

453. Interlocutory applications in arbitration proceedings 
should be kept to a minimum and should be heard by a 
legally qualified member of the Lands Tribunal, or the 
Registrar of the Tribunal if he is legally qualified, (p. 
1090) 

454. At the hearing the claimant should present his case 
first, (p. 1090) 

455. The Tribunal should be empowered to take a view of 
the expropriated property and to consider what it sees 
as relevant evidence adduced in the case. (p. 1091) 

456. There should be no onus of proof, in so far as it relates 
to the proof of market value, placed on either party to 
the arbitration proceedings. The onus of proof of items 
of special value or consequential damage should be on 
the owner, (p. 1091) 

457. Until there is in Ontario a sufficient number of quali- 
fied appraisers, two experts should be permitted to give 
evidence without special leave, (p. 1091) 

458. The Expropriation Procedures Act should be amended 
to make provision for a stated case on a question of law 
to the Court of Appeal in all expropriation arbitra- 
tions, (p. 1091) 

459. The legislation should contain a specific requirement 
that written reasons for decisions be given in all cases. 

(p. 1091) 



Part III (Volume 3) 1319 

460. The legislation should expressly provide for the proper 
reporting of proceedings by a fully (jualified court 
reporter, (p. 1091) 

461. The rights of the parties to appeal from a decision of 
the Lands 1 ribunal should be well defined. The follow- 
ing should be expressly provided for in the Expropria- 
tion Procedures Act. The appeal should lie on both 
questions of law and fact. The Court of Appeal shoidd 
have power to refer the matter back to the tribunal or to 
give any judgment or make any order that the arbitra- 
tion tribunal could have made. The Court of Appeal 
should be clothed with power to exercise the same 
power that it exercises on any appeal from a judge of the 
High Court sitting without a jury. (p. 1091) 

462. A judge of the Court of Appeal should have power to 
extend the time for appealing in proper cases, (p. 1091) 

General 

463. Where either the whole or part of an owner's land 
which has been expropriated is abandoned, the owner 
should have the right to elect whether he will take the 
land back with the right of compensation for consequen- 
tial damages, or insist on the expropriating authority's 
retaining the land expropriated and his being paid full 
compensation therefor, (pp. 1091-92) 

464. The claim of an owner whose land has been expropri- 
ated to resume ownership of it in certain circumstances, 
if it is no longer required by the expropriating authority, 
should be recognized in some form by legislation, (p. 
1092) 

465. The consent of the appropriate approving authority 
should be required before any surplus land is sold by 
an expropriating authority. Before giving approval to 
the sale of expropriated land, the approving authority 
should be required to make inquiry into the circum- 
stances of the proposed sale, and the position and desires 
of the former owners who should be given an oppor- 
tunity, where practical, to purchase the land on equit- 
able terms, (p. 1092) 



1320 Consolidated Summary of Recommendations 

466. Expropriating authorities should not be empowered to 
expropriate more land than is necessary for the proposed 
work, except where this can be shown to be in the 
interests of the owner of the unnecessary land. (p. 1092) 

467. The government should take steps to encourage and 
promote the education and training of appraisers whose 
services would be available to the public, as well as to 
expropriating authorities, (p. 1092) 

LICENSING POWERS 

Licensing Legislation 

468. Basic licensing laws should be enacted by democratic- 
ally elected bodies. In the provincial sphere, where de- 
tailed regulations are required these should be enacted 
by the Lieutenant Governor in Council, (p. 1119) 

469. Licensing requirements should not be unnecessarily im- 
posed nor should unreasonable standards be required 
in their implementation, (p. 1117) 

470. All powers which naturally relate to licensing, such as 
the power to revoke or suspend, should be stated ex- 
pressly in the legislation conferring the power so that 
those affected by the exercise of the power may be under 
no doubt as to their rights and potential liabilities. 
Such powers should not be left to implication, (p. 1117) 

471. The particular purposes or policy sought to be imple- 
mented by licensing legislation should be first deter- 
mined and then clearly expressed in the legislation, 
(p. 1117) 

472. If a large measure of discretion is intended to be vested 
in a licensing tribunal, safeguards surrounding the exer- 
cise of this discretion should be established as in the 
Civil Aviation (Licensing) Act, 1960, of the United 

Kingdom, (p. 1118) 

473. The power to limit the number of licences issued should 
only be conferred when accompanied by adequate safe- 
guards for the rights of the individual, (p. 1118) 



Part III (Volume 3) i:^21 

474. The Municipal Act should be amended so as to require 
municipalities, when enacting by-laws thereunder, to 
set standards to be inserted in licensing by-laws, indi- 
cating the matters or grounds on which a licence may 
be refused, revoked or suspended, (p. Ill 8) 

475. Subordinate legislative power in the licensing field con- 
ferring monopolistic privileges affecting the rights of 
the connnunity as a whole, should be exercised by an 
elected body or, if this is not possible, by a body directly 
accoimtable to an elected body, such as the Lieutenant 
Governor in Council, (p. 1118) 

476. Where a limitation on the number of taxi-cab licences 
issued is pro\'ided, the licensing tribunal should main- 
tain a list of applicants for licences available for public 
inspection. When the holder of a licence no longer 
W'ishes to use it, he should return it to the tribunal and 
a new licence should be issued to the person qualified 
and entitled to it whose application has been on file 
with the licensing tribunal for the longest period of 
time. (p. 1118) 

Licensing Tribunals 

477. Where a licensing tribunal exercises some adminis- 
trative powers the tribunal ought not to be established 
as an independent body in the true sense. Provincial 
licensing bodies should continue to be appointed by 
the Lieutenant Governor in Council and hold office 
during pleasure and, where municipal licensing tribu- 
nals are appointed, they should continue to be ap- 
pointed as they are now. (p. 1118) 

478. The proceedings of licensing tribunals should be con- 
ducted in substantially the same manner as those of 
judicial tribunals. The task of investigating complaints 
and making presentations to the tribunal should not 
be performed by members of the tribunal, (pp. 1118-19) 

479. Power to issue licences may be properly delegated by 
a licensing tribunal to one or more of its qualified 
officials, (p. 1119) 



1322 Consolidated Summary of Recomm^endations 

480. Subject to the Municipal Act, no official should have 
the power to refuse, suspend or revoke a licence. In all 
cases where the issuing official believes that the appli- 
cation should be refused, the matter should be referred 
to the tribunal to be dealt with in accordance with the 
procedure recommended in this Section, (p. 1119) 

Hearings 

481. No hearing should be required where a licence is issued 
(as distinct from being denied) in the first instance, 
(p. 1132) 

482. If the issuing officer considers that there are grounds for 
rejection, the licensing tribunal should hold a hearing 
and give the applicant the opportunity to fully present 
his case. (p. 1132) 

483. The applicant should be provided with sufficient in- 
formation in order that he may meet the case against 
him and the hearing should comply with the provisions 
of the Statutory Powers Procedure Act which we have 
recommended, (p. 1 1 32) 

Notice of Intention to Revoke 

484. Provision for notice of intention to revoke or suspend 
proceedings should be in all licensing by-laws, unless 
there are very exceptional circumstances when public 
health, safety or emergency are involved, (p. 1 1 32) 

485. The notice should set out briefly the grounds on which 
it is alleged the licence should be revoked or suspended 
and, where possible, a summary of the evidence that it 
is proposed to submit to the tribunal, (p. 1132) 

486. Evidence, if not supplied to the licensee with the notice, 
should be made available for his inspection prior to the 
hearing, (p. 1132) 

487. Provisions similar to those in the Revised Model State 
Administrative Procedure Act and the Federal Adminis- 
trative Procedure Act of the United States, giving a 
licensee an opportunity to show compliance with all 



Part III (Volume j) 1323 

lawful requirements and thus avoid proceedings leading 
to suspension, revocation or annulment of a licence 
should be enacted in Ontario either in the licensing 
statutes or the Statutory Powers Procedure Act. (p. 
1133) 

488. The onus should not be placed on the licensee to show 
cause why his licence should not be suspended or re- 
voked, (p. 1133) 

Procedural Safeguards 

489. The Statutoi7 Powers Procedure Act should apply to 
most licensing proceedings to correct procedural de- 
ficiencies in the licensing laws, particularly with respect 
to: 

(a) notice of hearing, 

(b) notice of case to be met, 

(c) right to counsel, and 

(d) reasons for decision, (p. 1133) 

490. The minimum rules applicable to judicial tribunals 
should be applicable to the proceedings of all licensing 
tribunals except where a licence is granted on an initial 
application and where, for reasons of public safety, 
health or emergency, immediate action is required, (p. 
1133) 

491. Additional rules governing judicial tribunals should 
apply to licensing tribunals where appropriate. The 
additional rules are: 

(a) Decisions should be based on the record; 

(b) No consultation after the hearing in the absence 
of affected parties; 

(c) The deciding members of the tribunal should be 
present at the hearing; 

(d) All evidence should be recorded, (p. 1133) 

492. The Statutory Powers Rules Committee should decide 
the extent to which the additional rules for judicial 
tribunals should apply to licensing tribunals, (p. 1133) 



1324 Consolidated Summary of Recommendations 

493. Our recommendations concerning judicial review apply 
to review of licensing decisions, (p. 1133) 

Appeals 

494. In addition, there should be statutory rights of appeal 
from licensing decisions and procedural provisions with 
regard thereto, (p. 1 1 34) 

495. Where a licensing tribunal is required to base its deci- 
sion on the record before it, an appeal should lie to the 
Appellate Division of the High Court of Justice on all 
questions of ultra vires and on all questions of fact or 
law disclosed in the record, (p. 1 1 34) 

496. On the appeal the court should have power to make the 
order that the licensing tribunal should have made or 
to refer the matter back to the licensing tribunal for a 
re-hearing, (p. 1 1 34) 

497. Where a tribunal is not required to base its decision 
solely on the record before it, an appeal should lie to an 
appropriate superior tribunal, (p. 1134) 

498. On the appeal the appellate tribunal should have the 
same powers as the licensing tribunal and power to make 
such order as the licensing tribunal might make. (p. 
1134) 

499. In appropriate cases an appeal should lie by way of 
stated case to the Appellate Division of the High Court 
of Justice on questions of law. (p. 1 1 34) 

500. Rules of procedure governing appeals, except procedure 
in the courts, should be made by the Statutory Powers 
Rules Committee. Rules of procedure in the courts 
should be left to the Rules Committee constituted under 
the Judicature Act. (p. 1134) 

501. There should be a right of appeal from suspension of 
licences, (p. 1134) 



Part III (Volume 3) 1325 

FAMILY BENEFITS ACT, 1966 

502. The terms "allowances" and "benefits" used in the 
Family Benefits Act should be clearly defined and the 
legal rights thereto clarified in the Act. (p. 1156) 

503. The Act should provide that before the Director should 
have power to order an investigation to determine 
whether the recipient of assistance continues to be quali- 
fied for assistance, he should have reasonable grounds 
for believinsr that circumstances exist which warrant an 

o 

investigation bearing on the continued payment of assis- 
tance, (pp. 1156-57) 

504. Section 8(1) of the Act providing for payment of an 
allowance in special circumstances should be clarified 
by providing a procedure by which it may become 
operative, (p. 1157) 

505. The Director should be given statutory power to dele- 
gate his powders of decision, (p. 1157) 

506. A decision to refuse assistance should not be made with- 
out giving the applicant an opportunity to be heard. 

(p. 1157) 

507. A decision to cancel or suspend assistance should not be 
made without first informing the recipient of the alleged 
grounds for cancellation or suspension and giving him 
an opportunity to be heard, (p. 1157) 

508. Provision should be made for both written and oral 
submissions, (p. 1157) 

509. Proper boards of review should be appointed by the 
Lieutenant Governor in Council with tenure of office. 

(p. 1157) 

510. Provision should be made for local or regional boards 
of review, (p. 1157) 

511. There should be a right of appeal from the decision of 
the boards of review^ on questions of law alone to the 
Appellate Division of the High Court of Justice for 
Ontario, (p. 1157) 



1326 Consolidated Summary of Recomm,endations 

SELF-GOVERNING PROFESSIONS AND 
OCCUPATIONS 

General 

512. The provisions of a Statutory Powers Procedure Act, 
recommended in Chapter 14, should apply to the exer- 
cise of all judicial powers conferred under the respective 
Acts relating to self-governing professions and occupa- 
tions, (p. 1209) 

513. The principles of the British Medical Act, 1956, should 
be followed by making provision for the appointment of 
lay members to each of the governing bodies of the self- 
governing professions and occupations, (p. 1209) 

514. The power of self-government should not be extended 
beyond the present limitations, unless it is clearly estab- 
lished that the public interest demands it and that the 
public interest could not be adequately safeguarded by 
other means, (p. 1209) 

515. Citizenship should not be a condition precedent to 
admission to any self-governing body. (p. 1209) 

516. Only British subjects should be qualified to hold office 
in any self-governing body. (p. 1209) 

Discipline 

517. Members of a disciplinary body should be prohibited 
from sitting on an appeal from decisions in which they 
have participated, (p. 1209) 

518. Each disciplinary body should have as a member a 
law'yer of ten years standing who should be appointed 
by the Lieutenant Governor in Council. (This recom- 
mendation is not applicable to the Law Society of Upper 
Canada), (p. 1209) 

519. The term "professional misconduct" should be the term 
used in all statutes to describe conduct of a nature to 
w^arrant disciplinai'y action, (p. 1209) 

520. Each self-governing body should prepare a code of 
ethics, laying down standards of conduct designed 



Part 111 (I'olinne 3) 1327 

primarily for the protection of the public. This code 
should be available to the public and circulated to mem- 
bers of the body to which it applies, (p. 1209) 

521. Where disciplinary proceedings have been instituted 
against a member, he should have at least ten days 
notice of a hearing. The notice of the hearing should 
be served personally. If personal service cannot be 
effected, service by registered mail, addressed to the 
member at the last address shown on the register should 
be permitted, (pp. 1209-10) 

522. The disciplinary body should have power to proceed 
witfi the hearing where the member involved has been 
duly notified btit has not attended, (p. 1210) 

523. Disciplinary hearings should not be held in public unless 
the member involved so requests (p. 1210) 

524. The rules of evidence applicable to civil cases should 
apply to disciplinary hearings, (p. 1210) 

525. On a hearing concerning admission, the tribunal should 
have discretion to ascertain relevant facts by such stand- 
ards of proof as are commonly relied on by reasonable 
and prudent men in the conduct of their own affairs. 
No defined standards of proof applicable to all cases 
should be laid down. (p. 1210) 

526. A member against whom disciplinary action has been 
taken should have a stattitory right to be represented 
either by coinisel or an agent, (p. 1210) 

527. Disciplinai-y bodies should have a right to impose a full 
range of sanctions, from reprimand to revocation of 
licence to practice, (p. 1210) 

528. No disciplinary body should have the right to impose 
fines, (p. 1210) 

529. In no case should the fines imposed by a court for 
breaches of the relevant statutes be payable to the self- 
governing bodies. All fines should be payable to the 
Province, (p. 1210) 



1328 Consolidated Summary of Recommendations 

530. The disciplinary bodies should not have power to award 
costs against a member of the body. In no case should 
an award by a disciplinary body be enforceable by an 
execution issued out of a court of the Province, (p. 1210) 

531. Self-governing bodies should have power to reimburse a 
member for costs incurred through unwarranted disci- 
plinary action against him. (p. 121 0) 

532. A member who has been the subject of disciplinary 
action should not be suspended from continuing to prac- 
tice pending an appeal, unless the charge is for incom- 
petence, (p. 1210) 

Licensing 

533. The self-governing bodies should be required to hold 
a formal hearing before an application for registration 
is rejected, (p. 1211) 

534. There should be a right of appeal from all disciplinary 
decisions, and decisions refusing admission. The appeal 
should be to the Appellate Division of the High Court 
of Justice, in accordance with recommendations made 
in Chapter 44. (p. 1211) 

535. Uniform terminology should be adopted with respect to 
regulations, rules and by-laws, (p, 1211) 

Rules 

536. All matters relating to admission and discipline should 
be dealt with by regulations made by the Lieutenant 
Governor in Council, (p. 1211) 

537. By-laws relating to administrative and domestic affairs 
of a self-governing body should be made by the body, 
(p. 1211) 

Control Over Other Bodies 

538. No self-governing body should have statutory control 
over others who are not members of the body. If 
employees of members of a self-governing body are 



Part III (Volume 3) 1329 

required in the public interest to be controlled, this 
should be done by some form of licensing and not by 
the conferring of legislative and judicial powers exer- 
cisable over them. (p. 1211) 

A Model Act 

539. A Model Act should be drawn which should form the 
basis of all self-governing Acts so that there might be 
some uniformity in them. (p. 1211) 

Limitation Period 

540. No limitation period should be for less than twelve 
months, (p. 1211) 

541. The court should have power to grant leave in proper 
cases to bring an action, notwithstanding that the limi- 
tation period has expired, (p. 1211) 

542. Uniform language should be used in defining a limita- 
tion period, (p. 1211) 

THE MENTALLY ILL: THEIR DETENTION AND 
ADMINISTRATION OF THEIR ESTATES 

Detention 

543. There should be an objective condition precedent to 
the power of a peace officer to detain a person on the 
ground of mental disorder. Section 1 (b) of the Mental 
Health Act, 1967, should be amended by substituting 
the words, "if he believes on reasonable grounds" for 
the words "if he is satisfied", (p. 1252) 

544. The attending physician should have the power to issue 
a renewable certificate for the detention of an involun- 
tary patient "where he has reasonable grounds to believe 
that the patient suffers from mental disorder of a nature 
or degree so as to require further hospitalization in the 
interests of his own safety or the safety of others; and 
is not suitable to be continued as an informal patient". 
Section 1 3 (2) should be amended accordingly, (pp. 
1252-53) 



1330 Consolidated Summary of Recommendations 

545. The senior physician mentioned in section 17 of the 
Mental Health Act, 1967, should have power to commu- 
nicate information compiled by the psychiatric facility 
only to persons entitled by law to the information. Sec- 
tion 17 should be amended accordingly, (p. 1253) 

546. A qualified barrister appearing as counsel for a patient 
before the board of review should be permitted to cross- 
examine witnesses as of right, (p. 1253) 

Right to Vote 

547. The Election Act should be amended to clarify the 
right of voluntary patients to vote. (p. 1253) 

Administration of Estates 

548. Provision should be made for a scheme of interim 
management of the estates of patients whose hospitaliza- 
tion may be of short duration, (p. 1253) 

549. An office of guardian of those suffering from mental 
disorder should be created to facilitate management of 
small estates, and to be a watch dog of the interests of 
the mentally incompetent, (p. 1253) 

550. The validity of gifts, conveyances or transfers of property 
should be left to the courts. In any case the provisions of 
section 48 of the Mental Health Act, 1967, should be 
amended to limit its application to transactions after the 
donor or transferor has become incompetent, (p. 1253) 

551. Estates coming into the hands of the Public Trustee 
should be administered on the same legal basis as estates 
are administered by private trustees, (p. 1253) 

552. The powers of the Public Trustee to conduct investiga- 
tions and acquire information should be limited to those 
of a commissioner appointed under the Public Inquiries 
Act. (p. 1253) 

553. The Public Trustee should be required to keep confi- 
dential any information obtained by him. Such informa- 
tion should not be conveyed to anyone except those 
legally entitled thereto, (p. 1253) 



Part III (Volume 3) 1331 

554. Section 55 of the Mental Health Act, 1967, should be 
repealed, (p. 1254) 

555. Section 58 of the Mental Health Act, 1967, should be 
repealed, (p. 1254) 

556. A simple and inexpensive method of administering small 
estates should be devised so that family arrangements 
could be carried out with the approval of the guardian 
of the mentally incompetent, and in appropriate cases 
■^vith the approval of the county or district court judge, 
(p. 1254) 

557. A form of power of attorney should be recognized by 
statute which w^ould authorize the attorney— with the 
approval of the guardian of the mentally incompetent, 
or, in proper cases, the county or district court judge- 
to continue to act as attorney for the donor after he has 
become incompetent, so that small and limited transac- 
tions such as the banking and paying of small bills may 
be carried out by the attorney, (p. 1254) 

558. If the foregoing recommendation is adopted, section 44 
of the Mental Health Act, 1967, should be amended. 
In any case, it should not apply to irrevocable powers of 
attorney, (p. 1254) 

559. The Public Trustee should make an annual report 
which should be tabled in the Legislature, (p. 1254) 



164115