ADAPTATION OF A STATUTE

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Parliament sometimes expressly grants to the executive branch, usually to the Governor in Council, the power to adapt an Act to a particular situation. Such cases can be found, for example, in the Canadian Environmental Assessment Act,^[1]the Referendum Act,^[2] the Firearms Act,^[3] the Employment Equity Act,^[4] the Public Service Superannuation Act,^[5] the Canadian Forces Superannuation Act,^[6] the Royal Canadian Mounted Police Superannuation Act,^[7] the Public Sector Pension Investment Board Act^[8] and the Special Retirement Arrangements Act.^[9] Provisions that confer the power to adapt an Act also generally confer the power to adapt the regulations made under the Act. They may even confer the power to adapt an Act other than the Act in which the power is conferred.^[10] The adaptation is generally accomplished by adding new provisions to existing regulations dealing with the same subject as the Act.^[11] Sometimes new regulations are made specifically for the purposes of adapting the Act^[12] or the regulations or both.^[13] In all cases, the exercise of the power to adapt the Act raises drafting issues and legal issues.

Drafting Issues

The adaptation of an Act can be accomplished in several ways. This is illustrated below by reference to subsection 10(1) of the Royal Canadian Mounted Police Superannuation Act,^[7] which reads as follows:

  10. (1) The amount of any annuity to which a contributor may become entitled under this Part is an amount equal to the aggregate of

• (a) … , and
• (b) … .

The formula set out in subsection 10(1) for the calculation of annuities is not suitable for part-time members of the Royal Canadian Mounted Police. However, paragraph 26.1(1)(h.4)^[14] gives the Governor in Council the power to make regulations adapting any provision of the Act for the purpose of applying it to those members.

The following options illustrate how subsection 10(1) could be adapted. Unless the context requires another approach, option 4 is recommended because its effect is clear.

Option 1

The adaptation of subsection 10(1) of the Royal Canadian Mounted Police Superannuation Act^[7] could be drafted without expressly stating what the new provision is intended to accomplish. For example:

  1. The Royal Canadian Mounted Police Superannuation Regulations¹ are amended by adding the following after section X:

  X.1 The amount of any annuity to which a contributor who has been a part-time member during the contributor's period of pensionable service may become entitled under Part I of the Act is an amount equal to the aggregate of the amounts calculated in accordance with the following formula for each segment of the period during which the weekly average of the hours of work for which the contributor was engaged changes:

….

This new provision is an adaptation of subsection 10(1) of the Act, even though the text does not mention that it is an adaptation. But what of the legal issue of whether the new provision forms part of the regulations or the Act? Because it is inserted in numerical order in the amended regulations, one must probably conclude that it forms part of the regulations and that the calculation of the amount of the annuity of the contributor who has been a part-time member during his or her period of pensionable service is to be made under that provision of the regulations rather than under subsection 10(1) of the Act. However, "annuity" is defined in subsection 9(1) of the Act as "an annuity computed in accordance with section 10". Does this form of adaptation have the effect of setting aside that definition as far as that contributor is concerned? How will one apply the other provisions of the Act and the regulations that depend for their operation on the calculations provided by subsection 10(1) of the Act?^[15] One technique the drafter could use to avoid these questions would be to adapt the other provisions of the Act or regulations that refer to subsection 10(1) so that references to this subsection are read as references to the subsection as adapted.

Option 2

The drafter could also specify in the adapting provision that it is an adaptation of subsection 10(1) of the Act and also, of course, set out the new rule. For example:

  1. The Royal Canadian Mounted Police Superannuation Regulations¹ are amended by adding the following after section X:

  X.1 Subsection 10(1) of the Act is adapted so that the amount of any annuity to which a contributor who has been a part-time member during the contributor's period of pensionable service may become entitled under Part I of the Act is an amount equal to the aggregate of the amounts calculated in accordance with the following formula for each segment of the period during which the weekly average of the hours of work for which the contributor was engaged changes:

….

This also raises the legal issue of whether the provision forms part of the regulations or the Act? Is the calculation of the amount of the annuity to be done under this provision or under subsection 10(1) of the Act? Again, the drafter could adapt the other provisions of the Act and regulations that refer to subsection 10(1).

Option 3

The drafter could also adapt subsection 10(1) of the Act by adding to or replacing certain parts of the regulations. For example:

  1. The Royal Canadian Mounted Police Superannuation Regulations¹ are amended by adding the following after section X:

  X.1 (1) With respect to a contributor who has been a part-time member during the contributor's period of pensionable service, subsection 10(1) of the Act is adapted by adding, after the word "contributor" in the portion before paragraph (a), the words "who has been a part-time member during the contributor's period of pensionable service" and after the word "aggregate" in the same portion, the words "for each segment of the period during which the weekly average of the hours of work for which the contributor was engaged changes,"

  (2) With regard to the same contributor, subparagraphs 10(1)(a)(i) to (iii) and (b)(i) to (iii) of the Act are adapted by replacing the words … with the words … .

Because this provision only adds to subsection 10(1) of the Act and does not set out the rule that is to apply to the calculation of the amount of the contributor's annuity, there is no need to consider whether, from a legal point of view, it forms part of the Act or the regulations. This approach leaves no doubt that the adapted version of subsection 10(1) of the Act is the provision that is to be used in calculating this amount. However, the disadvantage of this approach is that the adapted provision is not set out in full. The reader would have to consult both the Act and the Regulations to arrive at the new adapted version of the provision. One advantage is that the change is set out clearly.

Section 724 of the Bank Act ^[17] illustrates another way to adapt a provision by replacing some of its parts. This method could also be used in regulations that adapt provisions of an Act.

  724. Sections 81 to 135 apply in respect of bank holding companies, subject to the following:

• (a) references to "bank" in those sections are to be read as references to "bank holding company";
• (b) references to "this Act" in those sections are to be read as references to "this Part";
• (c) references to "Part VII" in those sections are to be read as references to "Division 7 of Part XV";
• (d) references to "this Part" in those sections are to be read as references to "this Division";
• (e) the reference to "subsections 137(5) to (7) and sections 138 to 141 and 145" in subsection 93(1) is to be read as a reference to "subsections 726(2) to (5) and sections 727 to 730 and 734"; and
• (f) the reference to "section 71 or 77" in subsection 97(3) is to be read as a reference to "section 715 or 720".

Option 4

To overcome the difficulties presented by options 1 to 3, the drafter could create a new provision of the same nature as the provision being adapted that states expressly what the new provision is intended to accomplish. For example:

  1. The Royal Canadian Mounted Police Superannuation Regulations¹ are amended by adding the following after section X:

  X.1 In respect of a contributor who has been a part-time member during the contributor's period of pensionable service, subsection 10(1) of the Act is adapted as follows:

  10. (1) The amount of any annuity to which a contributor who has been a part-time member during the contributor's period of pensionable service may become entitled under this Part is an amount equal to the aggregate of the amounts calculated in accordance with the following formula for each segment of the period during which the weekly average of the hours of work for which the contributor was engaged changes:

…

B is the amount determined according to section 8.1 of the Royal Canadian Mounted Police Superannuation Regulations … .

When the new provision is given the same number in the Act as the one being adapted and states what it is to accomplish, there is no doubt as to which provision is to be used in calculating the amount of the annuity of a contributor who has been a part-time member. For that contributor, the adapted subsection 10(1) is substituted for the existing subsection 10(1). The annuity of that person will be calculated under subsection 10(1) of the Act as it is adapted and not under section X.1 of the Royal Canadian Mounted Police Superannuation Regulations. ^[17]

Legal Issues

The exercise of a power to adapt a statute also raises some legal issues.

1. The Scope of the Power to Adapt

General Limitation

The power to adapt is not absolute. It has an intrinsic limit. In contrast to the power to amend, which conveys an open-ended power, the power to adapt is limited because it does not permit a change to the nature of the scheme of the Act. This distinction was set out by Madame Justice L'Heureux-Dubé in Haig v. Canada (Chief Electoral Officer):^[18] "Though the Chief Electoral Officer is given a discretionary power to adapt the legislation, this power does not extend to authorize a fundamental departure from the scheme of the Referendum Act (Canada). In exercising his discretion, he must remain within the parameters of the legislative scheme."^[19]

Power to Adapt the Enabling Provision

One issue to consider is whether, if the enabling provision grants the power to "adapt any provision of this Act", it is possible to adapt the enabling provision itself.

Enabling authorities are generally not construed as allowing the making of regulations that expand the scope of the enabling authority. For example, if an Act allows the making of regulations relating to record keeping, the regulations made under that authority could not define "record" in a way that is broader than the meaning of that word as it is used in the Act. By extension of that line of reasoning, it would be prudent to assume that an enabling provision that says "adapt any provision of this Act" is not intended to include the authority to adapt that enabling provision. On the other hand, perhaps the authority could be used to adapt other enabling provisions in the Act.

Express Authority Required

A further issue to consider is whether the power to adapt an Act permits the conferral by regulation of certain powers that usually require explicit authority; for instance, a power to inspect.

If the Act itself includes a power to inspect, it probably would not be a significant departure from the scheme of the Act to adapt that power to inspect. However, if the Act does not include a power to inspect, the adaptation of the Act in order to create a power to inspect may be too much of a departure from the scheme of the Act, particularly as an explicit enabling authority is usually required for a power to inspect.

It should be noted that the Standing Joint Committee for the Scrutiny of Regulations challenged the authority of the Governor in Council to exclude the jurisdiction of the courts by means of a regulatory provision based on a power to adapt the Act.^[20]

2. The Nature of the Power to Adapt

Does the power to adapt an Act include the power to amend the Act? In other words, does the power to adapt have the same effect as a Henry VIII provision? The nature of a classic Henry VIII provision ("The Governor in Council may, by regulation, amend the schedule to this Act.") is clear because the exercise of the power under the provision modifies the Act both in form and in effect.^[21] The result is not quite the same in the case of the exercise of a power to adapt. One can imagine at least two situations in which the effect of the exercise of such a power would be different than the effect of the exercise of a power under a Henry VIII provision:

• One situation is where a provision permits the adaptation of an Act by regulation in order to create a parallel regime for circumstances that are not dealt with in the Act. The Act, as adapted by regulation, would apply only in those particular circumstances. In this situation, there would be two versions of the Act, with one version applying in general circumstances and the other applying in the particular circumstances. An example of this kind of a power to adapt can be found in the Canadian Environmental Assessment Act,¹ which permits the adaptation of the environmental assessment process for certain projects.

• The other situation is where a provision permits the adaptation of an Act by regulation such that the provisions resulting from the adaptation supersede the provisions of the Act that are being adapted. In other words, the provisions of the Act that are adapted would be of no effect while the regulations remain in effect; they would be dormant. Unlike a classic Henry VIII provision, which permits the replacement of text in the Act with new text, the adapted provision does not make the text of the Act disappear.

In both of these situations, the Act is not formally amended.

Part 4 – Table of contents

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• ^[1] S.C. 1992, c. 37, paragraph 59(i). This provision illustrates a power to adapt that is not identified as one. The power that is conferred is the power to vary or exclude procedures and requirements of the environmental assessment process set out in the Act or its regulations for the purpose of adapting the process in respect of certain projects.

• ^[2] S.C. 1992, c. 30, subsection 7(3).

• ^[3] S.C. 1995, c. 39, paragraph 117(u).

• ^[4] S.C. 1995, c. 44, subsection 41(5).

• ^[5] R.S., c. P-36, paragraphs 42.1(1)(u), (v.2) and (v.7) and 71(1)(a).

• ^[6] R.S., c. C-17, subsections 3.1(1) and (3) and paragraphs 80(1)(a) and (2)(a).

• ^[7] R.S., c. R-11, paragraphs 26.1(1)(h.4) and (h.5) and 41(1)(a) and (2)(a) and subsection 42(1).

• ^[8] S.C. 1999, c. 34, paragraph 50(b).

• ^[9] S.C. 1992, c. 46, Sch. 1, paragraphs 28(1)(a) and (n).

• ^[10] S.C. 1998, c. 10, paragraph 27(1)(a).

• ^[11] For example, see sections 5.5, 5.6, 5.9, 17.1 and 17.4 to 17.6 of the Royal Canadian Mounted Police Superannuation Regulations, C.R.C., c. 1393, enacted by the Regulations Amending the Royal Canadian Mounted Policy Superannuation Regulations, SOR/2006-134.

• ^[12] For example, see the Regulations Adapting the Employment Equity Act in Respect of the Canadian Security Intelligence Service, SOR/2002-423.

• ^[13] There only appear to be two regulations in the Consolidated Regulations that adapt an Act and its existing regulations at the same time, namely the Aboriginal Peoples of Canada Adaptations Regulations (Firearms), SOR/98-205 and the Employment Insurance (Fishing) Regulations, SOR/96-445.S.C. 1992, c. 46, Sch. 1, paragraphs 28(1)(a) and (n).

• ^[14] 26.1 (1) The Governor in Council may make regulations…

  (h.4) respecting the manner in which and extent to which any provision of this Act or any regulations made under this Act apply to a member of the Force who is engaged to work at least the number of hours per week or the number of days per year prescribed in regulations made under paragraph (c.1) and adapting any of those provisions for the purposes of that application;

• ^[15] By way of example, subparagraph 22(2)(a)(ii) of the Act reads as follows:

  (ii) an amount equal to five times the annuity to which the contributor was or would have been at the time of his death entitled determined in accordance with subsection 10(1).

• ^[16] S.C. 1991, c. 46.

• ^[17] The words "under this Part" indicate that subsection 10(1) of the Act, as adapted by section X.1 of the Regulations, is conceptually part of the Act and not part of the Regulations. The reference to the Royal Canadian Mounted Police Superannuation Regulations in the description of B reinforces that conclusion; if one were to consider the adapted provision as part of the Regulations, the reference to the Regulations would be unnecessary.

• ^[18] [1993] 2 S.C.R. 995, p. 1025.

• ^[19] On this issue, subsections 41(5) and (7) of the Employment Equity Act, which read as follows, are of interest:

  (5) The Governor in Council may, taking into account the operational effectiveness of the appropriate portion of the public sector referred to in paragraph (a) or (b), make any regulation that the Governor in Council considers necessary to adapt this Act or the regulations or any provision of this Act or the regulations to accommodate

  • (a) the Canadian Security Intelligence Service; or
  • (b) where an order is made under paragraph 4(1)(d) in relation to the Canadian Forces or the Royal Canadian Mounted Police, the Canadian Forces or the Royal Canadian Mounted Police.

  (7) The effect of a regulation made under subsection (5) with respect to any matter may differ from the effect of the Act or the regulations or of any provision of the Act or the regulations with respect to that matter.

• ^[20] Regulations Adapting the Employment Equity Act in Respect of the Canadian Security Intelligence Service, SOR/2002-423, subsections 23(2.4), (6) and 24.2(3) and sections 28.2 and 29.2.

• ^[21] On the power to amend an Act by regulation and Henry VIII provisions, see Blache, Pierre, Du pouvoir de changer la loi par acte réglementaire statutaire, (1977) 12 R.J.T. No 2, and Morris, Dennis, "Henry VIII clauses: Their birth, a late 20th century renaissance and a possible 21st century metamorphosis", The Loophole, Journal of the Commonwealth Association of Legislative Counsel, Issue No. 1 of 2007, p. 14.