CONDITIONS PRECEDENT

Regulations may be subject to certain conditions precedent that are set out in the enabling act. For example, the regulation‑making authority may be required to consult with others or obtain the approval of others before making the regulations. In other cases, the Act may require that the regulation-making authority be satisfied that a certain fact or situation exists before exercising its regulation-making power.

The recital of the fulfilment of a condition precedent in an order in council or other executive order is important, as the recital constitutes, in the absence of evidence to the contrary, proof that the condition precedent was in fact fulfilled. It is extremely important for the drafter to examine the enabling statute carefully, for if the statute prescribes conditions precedent to the exercise of the power and these are not fulfilled, the regulation-making authority cannot legally exercise its power.^[1] The entire Act, not just the provisions dealing with the making of regulations, must be read carefully to ensure that all the conditions attached to the regulation‑making power are fulfilled and spelled out, step by step, in the order in council or other executive order.

Below are examples of orders in council and other executive orders in respect of regulations made under Acts that provide for conditions precedent. The fact that the condition precedent has been satisfied is recited in a paragraph introduced by the word "whereas". The wording of the "whereas" clause follows the wording of the provision in the Act setting out the condition precedent. The first word in each recital begins with a capital and each recital ends with a semi-colon.

For reasons of concision, footnotes have been deleted from the examples.

Example 1: Prepublication

Whereas, pursuant to subsection 11(3) of the Motor Vehicle Safety Act, a copy of the proposed Regulations Amending theMotor Vehicle Safety Regulations (Expiration Date for Certain Technical Standards Documents), substantially in the annexed form, was published in the Canada Gazette, Part I, on November 20, 2004 and a reasonable opportunity was afforded to interested persons to make representations to the Minister of Transport with respect to the proposed Regulations;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 5 and subsection 11(1) of the Motor Vehicle Safety Act, hereby makes the annexed Regulations Amending the Motor Vehicle Safety Regulations (Expiration Date for Certain Technical Standards Documents).

If the regulations were not modified as a result of prepublication, the word "substantially" should be dropped.

Example 2: Tabling of a proposed regulation

Whereas, pursuant to subsection 5(2) of the Immigration and Refugee Protection Act, the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations to be laid before each House of Parliament, substantially in the annexed form;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 17 of the Immigration and Refugee Protection Act, hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

If the regulations were not modified as a result of tabling, the word "substantially" should be dropped.

Example 3: The regulation-making authority must be "satisfied" of certain facts

Whereas the orders, notices and warrants referred to in the annexed Regulations are statutory instruments whose inspection or making of copies of is not otherwise provided for by law;

And whereas the Governor in Council is satisfied that the inspection of the orders, notices and warrants referred to in the annexed Regulations as provided in section 17 of the Statutory Instruments Act or the making of copies of those orders, notices and warrants as provided for in section 18 of that Act would result or be likely to result in injustice or undue hardship to any person or body affected or in serious and unwarranted detriment to the person or body in the matter or conduct of their affairs;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subparagraph 20(d)(iii) of the Statutory Instruments Act, hereby makes the annexed Regulations Amending the Statutory Instruments Regulations.

Example 4: Attestation of a fact

Whereas, the annexed Regulations give effect, in part, to a public announcement made on December 3, 2001 known as Customs Notice CN‑414;

And whereas that Notice provides that the changes proposed to the Accounting for Imported Goods and Payment of Duties Regulations are to be effective on December 3, 2001;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to sections 3.5, 32, 33 and 35, subsections 164(1) and 166(1) and paragraph 167.1(b) of the Customs Act, hereby makes the annexed Regulations Amending the Accounting for Imported Goods and Payment of Duties Regulations.

Example 5: Prior Approval

Whereas the Governor in Council has, by the Chicken Farmers of Canada Proclamation, established Chicken Farmers of Canada (CFC) pursuant to subsection 16(1) of the Farm Products Agencies Act;

Whereas CFC has been authorized to implement a marketing plan pursuant to that Proclamation;

Whereas the process set out in the Operating Agreement, referred to in subsection 7(1) of the schedule to that Proclamation, for making changes to quota allocation has been followed;

Whereas the proposed Regulations Amending theCanadian Chicken Marketing Quota Regulations, are regulations of a class to which paragraph 7(1)(d) of that Act applies by reason of section 2 of the Agencies' Orders and Regulations Approval Order, and have been submitted to the National Farm Products Council pursuant to paragraph 22(1)(f) of that Act;

And whereas, pursuant to paragraph 7(1)(d) of that Act, the National Farm Products Council has approved the proposed Regulations after being satisfied that they are necessary for the implementation of the marketing plan that CFC is authorized to implement;

Therefore, Chicken Farmers of Canada, pursuant to paragraph 22(1)(f) of the Farm Products Agencies Act and subsection 6(1) of the schedule to the Chicken Farmers of Canada Proclamation, hereby makes the annexed Regulations Amending theCanadian Chicken Marketing Quota Regulations.

Example 6: Repeal of provisions whose enactment was subject to a condition precedent

In some cases, the repeal of a provision whose enactment was subject to a positive fact situation may have to be preceded by a "whereas" clause worded in the negative. In the following example, the Governor in Council enacted the provision because the Governor in Council was of the opinion that registration of the documents was not reasonably practicable given their number. Consequently, the provision may be repealed only if the Governor in Council is now of the opposite opinion.^[2]

Whereas the Governor in Council is of the opinion that it is no longer the case that the registration of standing orders made by the Commissioner of the Royal Canadian Mounted Police under subsection 21(2) of the Royal Canadian Mounted Police Act is not reasonably practicable due to their number;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to paragraphs 20(a) to (c) of the Statutory Instruments Act, hereby makes the annexed Regulations Amending the Statutory Instruments Regulations.

Example 7: Requirements of the User Fee Act

Whereas the User Fees Act applies in respect of the fees fixed in the annexed Regulations;

And whereas the requirements of section 4 of that Act have been compiled with;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources, pursuant to paragraphs 5(b) and (e.2) of the Explosives Act, hereby makes the annexed Explosives Fees Regulations.

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Footnotes

• ^[1] See John Mark Keyes, Executive Legislation (Toronto: Butterworths, 1992) at 72-73, and Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 309-313.

• ^[2] See subsection 31(4) of the Interpretation Act, which provides that the power to repeal, amend or vary regulations is subject to the same conditions as the power to make them.