EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 14 and does not form part of the law. Bill 14 has been enacted as Chapter 21 of the Statutes of Ontario, 2006.

The Bill amends a number of Acts pertaining to the administration of justice. For convenience, the amendments are set out in separate Schedules. The commencement provisions for each of the Schedules are set out in the Schedules.

SCHEDULE A
AMENDMENTS TO THE COURTS OF JUSTICE ACT

The Schedule’s amendments to the Courts of Justice Act fall into five categories:

Administration of the courts

The Schedule rewrites Part V (Administration of the Courts) of the Act. The significant changes are the addition of an introductory section stating the goals of courts administration, clarification of the respective roles of the Attorney General and of the judiciary, the addition of a section providing for memoranda of understanding between the Attorney General and the three Chief Justices, and the addition of a requirement for an annual report on courts administration. Existing sections are re-ordered. (Sections 1 and 14 of Schedule)

Rules of court

Currently, rules of court made by the Civil Rules Committee and Family Rules Committee, and by the Criminal Rules Committee in relation to the Provincial Offences Act, become effective when approved by the Lieutenant Governor in Council. The Act is amended to provide for approval by the Attorney General instead. (Subsection 10 (1) and sections 12 and 13 of Schedule)

The rule-making jurisdiction of the Civil Rules Committee and Family Rules Committee is clarified, and a provision allowing court rules to be general or particular in application is added. (Subsection 10 (3) of Schedule)

Currently, the Chief Justice of the Ontario Court of Justice may designate one of the associate chief justices of that court to sit on the Civil Rules Committee on his or her behalf. This is broadened so that the Chief Justice may designate any judge of that court. (Section 9 of Schedule)

Qualifications for appointments to the provincial bench

Currently subsection 42 (2) of the Act requires a person who is appointed as a provincial judge to have been a member of the bar of one of the provinces or territories of Canada for at least 10 years or, for an aggregate of at least 10 years, to have been a member of such a bar or served as a judge anywhere in Canada after becoming a member of such a bar. This is expanded to include candidates who, after becoming members of a bar, held full-time positions involving functions of a judicial nature. (Subsection 5 (1) of Schedule)

Medical malpractice damages

A new section 116.1 of the Act deals with medical malpractice actions. In these actions, any damages awarded for the future care costs of the plaintiff must be paid as periodic payments under an annuity contract that satisfies specified criteria. Certain exceptions are specified. (Section 17 of Schedule)

Technical and miscellaneous amendments

Some of these are:

SCHEDULE B
AMENDMENTS TO THE JUSTICES OF THE PEACE ACT AND THE PUBLIC AUTHORITIES PROTECTION ACT

Justices of the Peace Act

The Schedule makes amendments to the Justices of the Peace Act relating to the appointment of justices of the peace, the establishment of qualifications for appointment, the handling of complaints against justices of the peace, the development of standards of conduct, the roles of the Associate Chief Justice Co-ordinator of Justices of the Peace, regional senior judges and regional senior justices of the peace and other matters as set out below.

Section 1.  The repealed definitions are no longer necessary.

Section 2.  At present, justices of the peace may be appointed on a full or part-time basis. Under the proposed amendment, only full-time justices of the peace would be appointed. A person previously appointed as a part-time justice of the peace would continue in office as a part-time justice of the peace unless the Lieutenant Governor in Council changes the person’s appointment to that of full-time justice of the peace. The Lieutenant Governor in Council may act only on the recommendation of the Attorney General who may act only on the recommendation of the Chief Justice of the Ontario Court of Justice.

Section 3.  The proposed section 2.1 of the Act would establish the Justices of the Peace Appointments Advisory Committee to classify candidates for appointment as justices of the peace and report to the Attorney General on the classifications. The committee would be composed of seven core members and additional regional members. The committee’s manner of operating is set out in subsection 2.1 (12). The committee will sit on a regional basis and consider candidates for each region.

Section 4.  It is proposed that all new justices of the peace be presiding justices of the peace. A person previously appointed as a non-presiding justice of the peace would continue in office as a non-presiding justice of the peace unless the Lieutenant Governor in Council changes the person’s appointment to that of presiding justice of the peace. The Lieutenant Governor in Council may act only on the recommendation of the Attorney General who may act only on the recommendation of the Chief Justice of the Ontario Court of Justice.

Sections 5 and 6.  Under the proposed section 5.1, justices of the peace who retire and who are below the mandatory retirement age will be allowed to change their designation to that of a per diem justice of the peace. The proposed section 5.2 provides for the accommodation of justices of the peace with special needs.

Sections 7, 8 and 10.  The Justices of the Peace Review Council is restructured and its functions expanded. Its role in relation to appointments would be transferred to the Advisory Committee. It will be the responsibility of the Review Council to develop information about itself and the justice system and the complaints process. It will receive all complaints and refer them to a complaints committee for investigation. The complaints committee will have the power to dismiss frivolous complaints, provide advice to the justice of the peace, order a full hearing or refer the complaint to the Chief Justice of the Ontario Court of Justice (proposed subsection 11 (15) of the Act). If a hearing is ordered, the chair of the Review Council must refer the matter to a hearing panel which will hold a hearing. The hearing panel may dismiss a complaint after a hearing or it may dispose of the matter in one of several ways, including recommending the removal of a justice of the peace to the Attorney General. Under the proposed section 11.2 of the Act, a justice of the peace may only be removed by the Lieutenant Governor in Council on the recommendation of the Attorney General and only after there has been a hearing by a hearing panel.

Sections 11 and 12.  The role of the Associate Chief Justice Co-ordinator of Justices of the Peace is revised. In addition to advising and assisting the Chief Justice of the Ontario Court of Justice on all matters related to justices of the peace, he or she will be responsible for establishing and implementing standards of conduct for justices of the peace and making them publicly available. The proposed section 13.1 of the Act addresses the situation in which a justice of the peace has not given a decision in a matter before his death, retirement, resignation or appointment to a court, or for any other reason.

Sections 13 and 14.  The proposed section 15 of the Act sets out the role of regional senior judges in relation to justices of the peace. The proposed section 16 provides for the appointment of regional senior justices of the peace and sets out their role.

Section 15.  Subsection 17 (2) of the Act is repealed as obsolete.

Section 16.  The deleted words are no longer applicable.

Section 17.  The existing section 19 of the Act is repealed as obsolete. The proposed section 19 requires that justices of the peace engage in work only as a justice of the peace and in no other remunerative work unless the Review Council has approved it.

Section 18.  Obsolete regulation-making powers are repealed. Provision is made for making regulations in respect of the remuneration of per diem justices of the peace.

Section 19.  Section 22 of the Act is repealed as obsolete.

Public Authorities Protection Act

Subsections 6 (2), (3) and (4) of the Public Authorities Protection Act, which contemplate that justices of the peace and small claims court clerks who issue warrants may be sued for anything done under them, are rewritten to recognize that justices of the peace have judicial immunity.

SCHEDULE C
AMENDMENTS TO THE LAW SOCIETY ACT AND RELATED AMENDMENTS TO OTHER ACTS

Law Society Act

The Law Society Act currently provides for the qualification and regulation of lawyers practising law in Ontario. The Act is amended to provide for the qualification and regulation of persons, other than lawyers, who provide legal services in Ontario. The types of conduct and activities that constitute the provision of legal services are set out in the new subsections 1 (5), (6) and (7) of the Act.

The new subsection 1 (8) of the Act deems certain persons not to be practising law or providing legal services, namely: a person acting in the normal course of carrying on a profession or occupation governed by an Act of Ontario or Canada that regulates the activities of persons engaged in that profession or occupation; an employee or officer of a corporation who selects, drafts, completes or revises a document for the use of the corporation or to which the corporation is a party; an individual who is acting on his or her own behalf, whether in relation to a document, a proceeding or otherwise; an employee or volunteer representative of a trade union who is acting for the union or one of its members in connection with a grievance, a labour negotiation, an arbitration proceeding or a proceeding before an administrative tribunal; and a person or a member of a class of persons prescribed by the by-laws.

Section 27 of the Act is amended so that it no longer refers to the Society admitting members but instead authorizes the Society to license persons to practise law and to license persons to provide legal services. The new paragraphs 4 and 4.1 of subsection 62 (0.1) of the Act authorize the Society to prescribe, by by-law, the classes of licence that may be issued to persons who are to be licensed to practise law, the classes of licence that may be issued to persons who are to be licensed to provide legal services, the scope of activities permitted under each class of licence and the qualifications and other requirements for each class of licence.

Under the new subsection 1.1 (2) of the Act, each person who is a member of the Society immediately before the amendment date will be deemed to become a person licensed to practise law and to hold the class of licence determined under the by-laws.

Under the amended subsection 2 (2) of the Act, the members of the Society as a corporation without share capital are the Treasurer, the benchers, the persons who are licensed to practise law in Ontario as barristers and solicitors from time to time and the persons who are licensed to provide legal services in Ontario from time to time.

The new section 25.1 of the Act requires Convocation to establish a standing committee to be known as the Paralegal Standing Committee. The Committee is to be responsible for matters relating to the regulation of persons who provide legal services, as specified in the by-laws. The Committee is to consist of 13 persons, of whom five must be persons licensed to provide legal services, five must be elected benchers who are licensed to practise law and three must be lay benchers. The five persons licensed to provide legal services are to be elected to the Committee in accordance with the by-laws. The five elected benchers licensed to practise law and the three lay benchers are to be appointed to the Committee by Convocation, on the recommendation of the Treasurer. The chair of the Committee must be one of the five persons licensed to provide legal services and is to be appointed by the Committee in accordance with the by-laws. The new section 25.2 of the Act provides that until the first election of the five persons licensed to provide legal services takes place, their offices are to be filled by five persons appointed by the Attorney General, and the office of the chair is to be filled by one person appointed by the Attorney General from among those five appointees.

In addition to the requirement that 40 persons licensed to practise law be elected as benchers (subsection 15 (1) of the Act), there is a new requirement that two persons licensed to provide legal services be elected as benchers (new subsection 16 (1) of the Act). Until the first election of these two persons takes place, their offices must be filled by two persons appointed by the Attorney General from among the five persons the Attorney General appointed to the Paralegal Standing Committee (new subsection 16 (6) of the Act). The by-laws may set out a different process for electing benchers licensed to provide legal services than that for electing benchers licensed to practise law (paragraph 6 and new paragraph 6.1 of subsection 62 (1) of the Act). A person who holds the office of bencher as a person licensed to practise law ceases to be a bencher if he or she ceases to be licensed to practise law (new subsection 15 (4) of the Act). A person who holds the office of bencher as a person licensed to provide legal services ceases to be a bencher if he or she ceases to be licensed to provide legal services (new subsection 16 (4) of the Act). A person’s appointment as a lay bencher is terminated if the person becomes a licensee (new subsection 23 (5) of the Act). Any elected bencher is eligible to be elected Treasurer, whether he or she is a person licensed to practise law or a person licensed to provide legal services (subsection 25 (1) of the Act with amended definition of “elected bencher” set out in subsection 2 (3) of the Schedule).

Sections 50 and 50.1 of the Act are repealed and replaced by sections 26.1 and 26.2. Subsection 26.1 (1) of the Act prohibits a person from practising law or providing legal services unless he or she is a licensee whose licence is not suspended, and subsection 26.1 (3) of the Act prohibits a licensee from practising law or providing legal services except to the extent permitted by his or her licence. However, the Society is authorized, under the new paragraph 25 of subsection 62 (0.1) of the Act, to make by-laws specifying classes of persons who are permitted to practise law or provide legal services without a licence, the circumstances in which they may do so and the extent to which they may do so. Section 26.2 of the Act makes it an offence to contravene section 26.1 of the Act and increases the maximum fine that a court may impose.

The new section 63.0.1 of the Act requires the Society to assess the extent to which the by-laws it makes within two years after Royal Assent are consistent with the principles set out in the 2004 report of the Task Force on Paralegal Regulation. The Society must report the results of its assessment to the Attorney General, who must submit the report to the Lieutenant Governor in Council and table it in the Assembly. The new section 63.1 of the Act requires that both the Society and a person appointed by the Attorney General conduct reviews of the manner in which persons who provide legal services in Ontario have been regulated under the Act during the review period and the effect that such regulation has had on those persons and on members of the public. The review period is the period beginning on the day on which all of the amendments to the Act made by the Schedule have come into force and ending on the fifth anniversary of that day. The Society is required to give the Attorney General a report of its review within three months after the end of the review period, and the person appointed by the Attorney General is required to give the Attorney General a report of his or her review within six months after the end of the review period.

Section 50.2 of the Act, which sets out the circumstances in which a court may make an order prohibiting a person from committing an offence under the Act, is repealed and replaced by section 26.3. Whereas section 50.2 authorized the court to make the order only if the person had been convicted of the offence, the person’s membership in the Society had been revoked or the person had been permitted to resign his or her membership in the Society, the new section 26.3 of the Act authorizes the court to make the order if the court is satisfied that the person is committing or has committed the offence, whether or not the person has been prosecuted for or convicted of the offence.

In addition to authorizing one or more persons who are licensed to practise law to establish a professional corporation for the purpose of practising law, the amended section 61.0.1 of the Act authorizes one or more persons who are licensed to provide legal services to establish a professional corporation for the purpose of providing legal services. Moreover, the section authorizes one or more persons who are licensed to practise law and one or more persons who are licensed to provide legal services to establish together a professional corporation for the purpose of practising law and providing legal services.

Subsection 61.0.7 (1) of the Act currently prohibits a corporation from practising law unless it has been incorporated or continued under the Business Corporations Act and holds a valid certificate of authorization. This subsection is amended to extend the prohibition to the provision of legal services. In addition, the new subsection 61.0.7 (3) of the Act prohibits a corporation from practising law or providing legal services except to the extent permitted by its certificate of authorization.

Subsection 3.2 (2) of the Business Corporations Act sets out conditions that must be met by all professional corporations. One of these conditions is that all of the shares of the corporation must be legally and beneficially owned by one or more members of the same profession. Another condition is that the articles of incorporation must prohibit the corporation from carrying on any business other than the practice of the profession. The new subsections 61.0.1 (4) and (5) of the Act clarify the way in which these conditions apply to a corporation incorporated both to practise law and to provide legal services. The new subsection 61.0.7 (5) of the Act, which replaces subsection 61.0.7 (6), prohibits a corporation from practising law or providing legal services when it does not satisfy the conditions set out in subsection 3.2 (2) of the Business Corporations Act, as clarified by the new subsections 61.0.1 (4) and (5) of the Act.

A corporation that practises law or provides legal services in contravention of the Act may be prosecuted for an offence under the new subsection 61.0.7 (6) of the Act.

The maximum fine that may be imposed on a person or corporation convicted of an offence under the Act is $25,000 for a first offence and $50,000 for each subsequent offence (new subsections 26.2 (1) and (2) and 61.0.7 (6) of the Act). Every director or officer of a corporation who authorizes, permits or acquiesces in the corporation’s commission of an offence under the Act is also guilty of an offence and on conviction is liable to a maximum fine of $50,000 (new subsection 61.0.7 (7) of the Act). The court that convicts a person or a corporation of an offence under the Act may order the person or corporation to pay the prosecutor costs toward fees and expenses reasonably incurred by the prosecutor in the prosecution (new subsections 26.2 (6) and 61.0.7 (9) of the Act).

Just as section 61.0.2 of the Act currently requires the Society to maintain a register of corporations that have been issued certificates of authorization, the new section 27.1 of the Act requires the Society to maintain a register of persons who have been issued licences. The registers must contain the information specified in the Act and the by-laws, including information regarding suspensions and revocations. The repeal of the existing section 27.1 of the Act removes the requirement that the Society give this type of information to the Superior Court of Justice at Toronto.

In addition to authorizing two or more persons who are licensed to practise law to form a limited liability partnership for the purpose of practising law, the amended section 61.1 of the Act authorizes two or more persons who are licensed to provide legal services to form a limited liability partnership for the purpose of providing legal services. Moreover, the section authorizes one or more persons who are licensed to practise law and one or more persons who are licensed to provide legal services to form together a limited liability partnership for the purpose of practising law and providing legal services. The section also authorizes two or more professional corporations to form a limited liability partnership for the purpose of practising law, providing legal services or doing both, as authorized by their certificates of authorization.

Under the new subsection 51 (5.2) of the Act, when Convocation makes a grant from the Compensation Fund in consequence of dishonesty on the part of a person licensed to practise law (or a former member of the Society), Convocation may decide to make the grant only out of the money that has been paid to the Fund by persons licensed to practise law (and former members), the money recovered by the Society as a result of being subrogated to the rights and remedies to which a grantee was entitled in consequence of dishonesty on the part of a person licensed to practise law (or a former member), the money paid to the Fund by persons who are not licensees (or former members), and any income earned on such money. When making a grant from the Compensation Fund as a result of dishonesty on the part of a person licensed to provide legal services, Convocation may decide to make the grant only out of the money that has been paid to the Fund by persons licensed to provide legal services, the money recovered by the Society as a result of being subrogated to the rights and remedies to which a grantee was entitled in consequence of dishonesty on the part of a person licensed to provide legal services, the money paid to the Fund by persons who are not licensees (or former members), and any income earned on such money.

The new subsection 31 (5) of the Act specifies that if the Hearing Panel refuses to restore a licence that is in abeyance, the licence is deemed to have been surrendered. This prevents a licence from being in abeyance indefinitely.

Section 32 of the Act, which requires members of the Society to be Canadian citizens or permanent residents of Canada, is repealed because the court has held this requirement to be unconstitutional.

Section 49.4 of the Act, which requires the Society to conduct a professional competence review if the circumstances prescribed by the by-laws exist, is repealed. It is replaced by an amended section 42 of the Act, which authorizes but does not require the Society to conduct a professional competence review if the circumstances prescribed by the by-laws exist. The amended section 42 retains the Society’s authority to conduct a professional competence review when the Hearing Panel, after determining that a person has engaged in professional misconduct or conduct unbecoming a licensee, orders the person to undergo a professional competence review. However, the Society’s authority to conduct a professional competence review on consent is removed from section 42 because this authority has rarely been used.

Subsection 42 (6) of the Act requires the Society to appoint a person to review a proposal made by the Society and accepted by the licensee following a professional competence review. The subsection is amended to remove the requirement that the appointee be an elected bencher and to impose the requirement that the appointee be a member of the Hearing Panel.

Subsection 44 (1) of the Act currently requires the Hearing Panel to make one of the listed orders if it determines that a person is failing or has failed to meet standards of professional competence. The subsection is amended to authorize, but not require, the Panel to make one of the listed orders. This is consistent with the approach taken in subsection 40 (1) of the Act respecting a determination by the Hearing Panel that a person is or has been incapacitated. This allows the Panel not to make an order if a person has failed, but is no longer failing, to meet standards of professional competence or if a person has been, but no longer is, incapacitated.

Summary suspension orders are currently dealt with in sections 46, 47 and 49 of the Act and are available for failure to pay a required fee or levy to the Society, failure to complete or file a required document with the Society, and failure to comply with the continuing legal education requirements in the by-laws. The new paragraph 51 of subsection 62 (0.1) of the Act authorizes the Society to make a by-law prescribing requirements to be met by licensees with respect to indemnity for professional liability, and the new section 47.1 of the Act provides an additional summary suspension order for failure to comply with those indemnity requirements. A summary revocation order is currently available under section 48 of the Act if certain other orders are still in effect more than 12 months after they were made. Sections 46 to 49 of the Act are amended to remove the requirement that Convocation appoint an elected bencher to make these summary orders and to permit Convocation to appoint instead any bencher or any employee of the Society holding an office prescribed by the by-laws.

The Schedule repeals section 49.1 of the Act, which allows an order to be made prohibiting a person from engaging in the private practice of law if the person has not made substantial use of legal skills on a regular basis for a period of time specified in the by-laws. Moreover, all such orders that are still in effect are terminated by the new subsection 1.1 (11) of the Act. This matter will be dealt with through the issuance of different classes of licence.

Subsection 49.3 (5) of the Act currently requires the Society to conduct an investigation into a member’s capacity if there are reasonable grounds for believing that the member may be, or may have been, incapacitated. This subsection is repealed. It is replaced by a new subsection 49.3 (3) of the Act, which authorizes the Society to conduct an investigation into a licensee’s capacity if the Society receives information suggesting that the licensee may be, or may have been, incapacitated. However, the investigator does not have the power under subsection 49.3 (4) of the Act to enter the licensee’s business premises, to require the production of documents that relate to the matters under investigation, or to require the licensee and people who work with the licensee to provide information that relates to the matters under investigation, unless an employee of the Society holding an office prescribed by the by-laws is satisfied that there are reasonable grounds for believing that the licensee being investigated may be, or may have been, incapacitated. This is similar to the approach the Act takes with respect to investigations into a licensee’s conduct. Subsection 49.3 (1) of the Act authorizes the Society to conduct an investigation into a licensee’s conduct if the Society receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee. However, the investigator does not have the powers set out in subsection 49.3 (2) of the Act unless and until an employee of the Society holding an office prescribed by the by-laws has a reasonable suspicion that the licensee being investigated may have engaged in professional misconduct or conduct unbecoming a licensee.

Section 49.10 of the Act currently allows the court to make an order authorizing a search and seizure to be conducted with respect to a building, dwelling, premises, vehicle or place in the course of an investigation or review under the Act, if certain conditions are met. The section is amended to clarify that the order may be made regardless of whether the building, dwelling, premises, vehicle or place is under the control of the licensee or another person.

Subsection 49.12 (1) of the Act currently prohibits a bencher, officer, employee, agent or representative of the Society from disclosing information that comes to his or her knowledge as a result of an audit, investigation, review, search, seizure or proceeding under the Act. Subsection 49.12 (2) of the Act, which currently provides exceptions to this prohibition, is amended to provide an additional exception that permits disclosure if there are reasonable grounds to believe that there is a significant risk of harm to the person who was the subject of the audit, investigation, review, search, seizure or proceeding or to another person if the disclosure is not made and that making the disclosure is likely to reduce the risk.

Section 49.21 of the Act, which provides for the Hearing Panel to consist solely of benchers, is amended to provide for the Hearing Panel to consist of at least three persons appointed by Convocation, each of whom must be a bencher, a licensee or a person approved by the Attorney General and at least one of whom must be a person who is not a licensee. The term of each appointment is to be fixed by Convocation and may not exceed four years, but each appointee holds office at the pleasure of Convocation and, in addition, ceases to be a member of the Hearing Panel if he or she ceases to meet the eligibility requirements. An appointee is eligible for reappointment if he or she meets the eligibility requirements. The persons who are members of the Hearing Panel immediately before the day the amendments to the section come into force cease to be members on that day, unless they are reappointed under the amended section. However, any person who ceases to be a member of the Hearing Panel on the day the amendments come into force may continue to act as a member of the Hearing Panel with respect to any proceeding commenced before that day.

Section 49.22 of the Act currently provides for the chair of the Hearing Panel to be an elected bencher and to hold office for a term of one year. The section is amended to allow any member of the Hearing Panel to be appointed as chair for a term fixed by Convocation not exceeding four years. The section is also amended to provide for the appointment of a vice-chair. The person who is the chair immediately before the day the amendments to the section come into force ceases to be chair unless he or she is reappointed under the amended section.

Section 49.29 of the Act currently provides for the Appeal Panel to consist of at least seven benchers appointed by Convocation, of whom at least three must be elected benchers and at least one must be a lay bencher. The section also currently provides that the term of each appointment is to be fixed by Convocation and may not exceed two years. The section is amended to provide for the Appeal Panel to consist of at least five persons appointed by Convocation, each of whom must be a bencher, a licensee or a person approved by the Attorney General and at least one of whom must be a person who is not a licensee. The term of each appointment is to be fixed by Convocation and may not exceed four years, but each appointee holds office at the pleasure of Convocation and, in addition, ceases to be a member of the Appeal Panel if he or she ceases to meet the eligibility requirements. An appointee is eligible for reappointment if he or she meets the eligibility requirements. The persons who are members of the Appeal Panel immediately before the day the amendments to the section come into force cease to be members on that day, unless they are reappointed under the amended section. However, any person who ceases to be a member of the Appeal Panel on the day the amendments come into force may continue to act as a member of the Appeal Panel with respect to any proceeding commenced before that day.

Section 49.30 of the Act, which currently provides for the chair of the Appeal Panel to hold office for a term of one year, is amended to provide for the chair to be appointed for a term fixed by Convocation not exceeding four years. The section is also amended to provide for the appointment of a vice-chair. The person who is the chair immediately before the day the amendments to the section come into force ceases to be chair unless he or she is reappointed under the amended section.

Subsection 49.31 (3) of the Act, which sets out the number and types of members of the Appeal Panel who must be assigned to hear an appeal, is amended to require an appeal to the Appeal Panel to be heard and determined by such number of members of the Panel as is prescribed by the regulations. This is consistent with the approach currently taken in respect of the Hearing Panel in subsection 49.23 (3) of the Act.

Subsection 49.24 (2) of the Act is repealed and replaced by section 49.24.1, which allows the chair or vice-chair of the Hearing Panel to appoint, as temporary panelists for the purposes of a hearing, one or more persons who are benchers, licensees or persons approved by the Attorney General for Ontario, if in the opinion of the chair or, in the absence of the chair, the vice-chair, it is not possible or practical to assign members of the Hearing Panel to the hearing in compliance with a requirement that the hearing be heard by French-speaking panelists or in compliance with any other requirement in the regulations. Subsection 49.37 (1), which made subsection 49.24 (2) apply to the Appeal Panel, is amended to make section 49.24.1 apply to the Appeal Panel. Subsection 49.31 (4) of the Act is repealed as its content is covered by section 49.24.1.

The test for making an interlocutory suspension order or practice restriction order under section 49.27 of the Act is changed. Instead of requiring that the order be necessary for the protection of the public, the section requires reasonable grounds for believing that there is a significant risk of harm to members of the public, or to the public interest in the administration of justice, if the order is not made and that making the order is likely to reduce the risk.

Subsection 49.42 (4) of the Act, which deals with the readmission of a person whose membership in the Society has been revoked, is repealed. Instead, a person whose membership in the Society has been revoked will apply for a licence and a person whose licence has been revoked will apply for a new licence.

Subsection 49.42 (6) of the Act, which sets out the terms and conditions that may be included in an order discharging or varying a suspension order or a practice restriction order, is repealed because section 49.26 of the Act already states that an order of the Hearing Panel may include such terms and conditions as the Panel considers appropriate.

Subsection 59.9 (1) of the Act currently requires the Society to publish a notice annually in The Ontario Gazette listing the name and last known address of every person who is entitled to unclaimed trust money that, during the previous year, was paid to the Society under section 59.6 or transferred by the Society under section 59.8 to the trust established by section 59.7. Subsection 59.9 (2) of the Act, which currently exempts the Society from the publication requirement if the Society is not aware of the person’s name or address, is amended to extend the exemption to the following two situations: (i) if publication of the name or address would breach a duty of confidentiality owed by a person who was practising law or providing legal services, or (ii) if there are reasonable grounds for believing that publication of the name or address will result in a significant risk of physical or psychological harm to the person whose name or address is published or to another person.

References to the Secretary throughout the Act are replaced with references to the Society or an employee of the Society so that the many statutory duties that were imposed on the Secretary can be divided among different employees of the Society.

The Schedule repeals section 49.5 of the Act, which requires that an investigation into the conduct or capacity of a bencher or an employee of the Society be ordered by the Treasurer, rather than the Secretary, and be conducted by a person who is not a bencher or employee of the Society. These matters will be up to the Society.

Related Amendments

The Schedule makes consequential amendments to a number of other statutes.

Various statutes are amended in order to remove language referring to a party’s counsel and/or agent, and in some cases substitute for it language referring to a person authorized under the Law Society Act to represent a party, or to a person who represented a party at a hearing already held, or similar language as appropriate to the context. In some statutes, a definition of “representative”, defined generally as meaning, in respect of a proceeding under the relevant statute, or to which the statute applies, a person authorized under the Law Society Act to represent a person in that proceeding, is added and used in lieu of a person’s counsel and/or agent as appropriate.

In addition, the Co-operative Corporations Act, the Coroners Act, the Courts of Justice Act, the Provincial Offences Act and the Statutory Powers Procedure Act are amended so that the authority of the court, tribunal or coroner presiding over a hearing, as the case may be, to exclude a person representing a party from the hearing under specified circumstances, where it appears in these Acts, does not extend to a person licensed under the Law Society Act.

Other consequential amendments made by the Schedule include:

SCHEDULE D
AMENDMENTS TO THE LIMITATIONS ACT, 2002

Section 11 of the Limitations Act, 2002, which provides that a limitation period does not run during the life of an agreement to have an independent third party resolve the claim or assist the parties in resolving it, is clarified by the addition of a subsection stating that how the independent third party is funded is irrelevant so long as it acts on an impartial basis.

According to section 22, limitation periods established by the Act apply despite agreements to vary or exclude them. The only exception is for an agreement made before January 1, 2004, the day the Act came into force. Section 22 is rewritten as follows:

A. The basic limitation period may be suspended or extended by an agreement made on or after the date the Bill receives Royal Assent.

B. The ultimate limitation period may be suspended or extended by an agreement made on or after that date, but only if the relevant claim has been discovered.

C. Business agreements (where no party is a consumer) have greater latitude. The basic limitation period may be varied or excluded by a business agreement made on or after the date the Bill receives Royal Assent. The ultimate limitation period may be varied by such an agreement, except that it may be suspended or extended only if the relevant claim has been discovered.

SCHEDULE E
AMENDMENTS TO THE PROVINCIAL OFFENCES ACT

The Provincial Offences Act is amended to provide for witnesses to be heard by video conference, audio conference, telephone conference or other electronic means in proceedings to be specified by regulation.

SCHEDULE F
LEGISLATION ACT, 2006

The Legislation Act, 2006 would assemble in one Act provisions about the publication, citation and interpretation of Ontario legislation. The Act has nine Parts.

Part I – General (sections 1 to 4)

Part 1 defines key terms, including “source law”, “consolidated law”, “legislation” and “e-Laws website”. As well, it provides that the Attorney General shall facilitate convenient and reliable public access to Ontario legislation and shall safeguard the accuracy and integrity of Ontario’s publication of statutes and regulations.

Part II – Statutes (sections 5 to 16)

This Part would replace the current Statutes Act. The current Act refers only to statutes printed in the statute books, not published electronically. Under the current Act, statutes come into force 60 days after the end of the legislative session in which they are enacted, unless they provide otherwise.

The Part provides that statutes come into force on Royal Assent, unless they provide otherwise. Regardless of when other provisions of a statute come into force, the short title and commencement provisions and the long title come into force on Royal Assent.

Part II provides that statutes come into force at the beginning of the day, as is the case at common law. However, unless otherwise provided, a statute that comes into force on Royal Assent cannot be enforced against a person until the end of the day on which it comes into force, unless the person has actual notice of it. The Part also provides that the repeal of a statute takes effect at the beginning of the day.

The Clerk of the Assembly is to provide a certified copy of each Act for the purpose of publication. Every Act is to be published on the e-Laws website and in print. The current Act requires only print publication.

Chief Legislative Counsel has the power to correct errors in the published version, based on the Act as assented to.

The Part sets out how statutes may be cited. The Attorney General may make regulations providing additional methods of statute citation and prescribing the manner of publishing statutes, on the e-Laws website and in print.

Part III – Regulations (sections 17 to 33)

This Part would replace the current Regulations Act, governing how regulations are filed and published.

The Part clarifies the rules about how regulations are to be filed and specifies circumstances in which the Registrar of Regulations may or must refuse to file a regulation. The Part requires that regulations be filed within four months of their making or approval unless the regulation-making authority gives specific permission for later filing. A filed regulation shall be made available for public inspection.

Under the current Regulations Act, a filed regulation cannot be enforced against a person who does not have actual notice of it until the regulation is published in the print version of The Ontario Gazette. The new provisions permit enforcement once the regulation is published on the e-Laws website.

The Part requires every regulation to be published on the e-Laws website promptly after filing and in the print version of The Ontario Gazette within one month of filing or in accordance with such other timelines as may be specified by regulation.

Before a regulation is published, the Registrar of Regulations may make minor technical corrections to the filed regulation. If the Registrar discovers a publication error, the Registrar has a duty to publish a correction.

The Part sets out how regulations may be cited. The Attorney General may make regulations providing additional methods of regulation citation.

The Attorney General may also make regulations permitting the establishment of an electronic filing system for regulations and to otherwise address technological change.

Part IV – Proof of Legislation (sections 34 to 41)

This Part of the Act states that the Act endorsed by the Clerk of the Legislature as having received Royal Assent and the regulation filed with the Registrar of Regulations are “official law”.

A copy of an official law that is printed by the Queen’s Printer or accessed from the e-Laws website in a prescribed form or format is an official copy of the law, unless there is a disclaimer indicating that it is not official. Unless the contrary is proved, official copies of the law are accurate statements of the law. In the case of a consolidated law, the Part describes the period during which the copy is accurate.

The Attorney General is authorized to make regulations prescribing the forms or formats in which official copies of law may be accessed from the e-Laws website. The Attorney General can also prescribe other copies of the law as official copies.

Part V – Change Powers (sections 42 to 45)

This Part provides Chief Legislative Counsel with authority to make limited changes to the consolidated law, without altering the legal effect of any Act or regulation. The Part requires notice of all but the most minor changes.

The Part also provides for the correction by the Chief Legislative Counsel of errors made in publishing or consolidating a consolidated law.

Part VI – Interpretation (sections 46 to 97)

This Part would replace the current Interpretation Act.

Sections 46 to 50 deal with the application of Part VI. It applies to all Acts and regulations (unlike the current Act, which was designed for statutes and extends only certain provisions to regulations). Like the current Act and all the other Canadian interpretation statutes, it is subject to an overriding contrary intention rule (which also applies to the interpretation and definition provisions in Acts and regulations generally). Part VI applies to both existing and future legislation. Certain listed provisions also apply to subordinate documents other than regulations.

Sections 51 to 57 deal with legislative changes. As in the current Act, detailed rules are provided to govern the effect of repeal and revocation and the effect of amendments. Various issues relating to the status of regulations are clarified and the Lieutenant Governor in Council is given power to revoke regulations that are obsolete or no longer have effect. The existing Act’s rules about inferences from legislative change are reproduced.

Sections 58 to 62 deal with references. In legislation, a reference to an Act or regulation includes a reference to each of its provisions. The current Act provides for rolling incorporation of Ontario Acts and regulations (i.e. in Ontario legislation, a reference to another Ontario provision is read as including any changes that the provision has undergone since the reference was made); Part VI restates and expands these rules, extends rolling incorporation to legislation of Canada and its other provinces and territories, and states that references to legislation of jurisdictions outside Canada are fixed (i.e. the reference is read as including only the provision as it was at the time of the reference, without any subsequent changes). Part VI also sets out rules relating to incorporation by reference in regulations. Incorporation by reference is a technique whereby outside documents are made legally part of legislation without being reproduced in it.

Sections 63 to 68 set out general rules of construction, reproducing standard provisions from the current Act and adapting one of them, the rule of liberal interpretation, to the regulations context. Interpretive rules relating to the use of two official languages are added.

Sections 69 and 70 reproduce the provisions of the current Act dealing with preambles and reference aids. A provision explaining the status of preambles to amending Acts is added.

Sections 71 and 72 reproduce existing provisions dealing with the Crown.

Sections 73 to 75 deal with proclamations. A new provision states that a proclamation bringing an Act into force may be amended or revoked, but only before the commencement date stated in the original proclamation.

Sections 76 to 81 deal with appointments, powers and delegation. A provision authorizing the Lieutenant Governor in Council, the Lieutenant Governor or a minister to make an appointment authorizes an appointment for a fixed term or during pleasure. Powers of appointment include various implied powers, and power to do or enforce anything includes all necessary incidental powers. New provisions clarify issues relating to delegation: a person whose powers and duties have been delegated is still able to exercise them, and a delegation remains valid even if the author of the delegation is no longer in office.

Sections 82 to 84 deal with regulations and forms. A new provision states that regulations may be general or particular in their application and may prescribe classes. The Lieutenant Governor in Council’s authority to make fee regulations in certain circumstances is continued. Trivial deviations do not affect the validity of a form whose use is required.

Sections 85 to 87 deal with definitions. A new provision clarifies that other forms of a defined term have corresponding meanings (e.g. if “mentally ill” is defined, “mental illness” will be understood in the same way). Terms used in regulations (and other subordinate documents) have the same meaning as in the Act under which they are made. The current Act’s list of general definitions applicable to all Ontario legislation is reproduced, with some changes, additions and deletions.

Sections 88, 89 and 90 deal with time. The current Act’s definition of “holiday” (a default definition that applies when legislation refers to “holiday” without otherwise defining it) is expanded into a section for greater clarity. New provisions provide rules for the calculation of time in legislation and for determining a person’s age.

Sections 91 to 97 are a group of miscellaneous provisions reproduced from the current Act, dealing with private Acts, immunity provisions and other matters. The current Act’s default list of the attributes of statutory corporations is reproduced, but frozen so that its application will not be extended.

Part VII – Unconsolidated Acts and Regulations (sections 98 to 100)

This Part repeals a number of obsolete statutes that were left unconsolidated and unrepealed by the 1990 statutes revision. It also revokes obsolete regulations that were left unconsolidated and unrevoked by the 1990 regulations revision.

The Lieutenant Governor in Council may make regulations to resolve any uncertainties about rights or duties under the statutes and regulations being repealed or revoked by this Part and to resolve transition questions.

Part VIII – Amendments and Repeals (sections 101 to 142)

Part VIII repeals the Interpretation Act, the Statutes Act, the Regulations Act, the Statute and Regulation Revision Act, 1998 and sections 24.1 and 24.2 of the Evidence Act. The Part makes various consequential amendments to other Acts. Most of these amendments replace a reference to a repealed Act with a reference to the appropriate part of the Legislation Act, 2006.

Section 111 of this Part amends the Executive Council Act. Section 6 of that Act, which requires that ministry contracts be signed by the minister or approved by the Lieutenant Governor in Council, is amended to provide that they may also be signed by the deputy minister or an authorized delegate. Section 5 is amended and sections 8 to 11 are added to specify what may be done in relation to the duties, powers and functions of ministers of the Crown by order in council under the Act and to address references to ministers and ministries in legislation that are affected by an order in council.

Part IX – Commencement and Short Title (sections 143 and 144)

The Legislation Act, 2006 comes into force on the first anniversary of the day the Access to Justice Act, 2006 receives Royal Assent or on such earlier day as may be named by proclamation, with the exception of specified complementary amendments that come into force on the day that Act is assented to and of amendments consequential to provisions of Acts that are not proclaimed in force.

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