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Omnibus Laws to Trim Transparency, Red Tape in Ontario

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The previous article looked at the neo conservative revolution brought about by Mike Harris and the Ontario Conservative party based upon capitalizing on the political weakness of Bob Rae’s Ontario NDP’s and riding on the coat tails of economic growth which the province was just beginning to experience.

This article attempts to examine the government’s strategic goals in passing omnibus legislation to ensure laws passed quickly, reducing red tape for businesses and commerce to operate as the Conservatives originally campaigned upon.

These legislative changes also impacted the quality of transparency by introducing fees and other changes to Freedom of Information requests.

The legislative initiatives employed by the PC government here would continue to be used in other pieces of legislation, some of which are covered in future articles in this series.

Omnibus Legislation Strategy

For the Conservatives to create the sort of profound changes that Mike Harris had envisioned for Ontario, a bold ambitious plan was set in motion. Mike Harris would hold steadfast on delivering the promises he campaigned on in order to win the election no matter the opposition or the cost.

To do this, the government wasted little time and set about to pass Omnibus Bill 26 – Savings and Restructuring Act in late 1995, which contained 26 amendments to over 44 separate statutes and new bill introductions which normally would have been mandated by the Speaker of the House to be separated into individual bills.

The use of omnibus bill’s would be seen as a key strategy of the Ontario PC party in order to legislate new laws and amend existing ones via reforms. This strategy was seen as a threat to democracy for members of the opposition and for journalists of the media.

Historically, the tradition of parliamentary procedure has been that each Bill must deal with a single theme. Omnibus Bills usually include items such as ‘housekeeping’ items where no substantial policy changes are included.

Thus an Omnibus serves as an administrative mechanism to make a large number of small adjustments (such as corrections in spelling errors) pass more quickly and efficiently.

The legislative proposals in the Omnibus Bill 26 had numerous implications for different sectors of the province as  it affected 44 separate statutes, created three new Acts and repealed two others. This Omnibus Bill was more than 2,000 pages long upon inception.

The omnibus bill also allowed the government to impose and direct the practice of doctors, close hospitals, seize and stockpile public health records, impose mandatory labour arbitration on Ontario Public Service employees, collect tolls on the newly built and publicly funded highway 407, impose new fees and restrictions under the newly amended Freedom of Information Act and impose mandatory amalgamation of certain municipalities.

For example, the bill gave significant powers to force mergers and amalgamations of local municipalities, and it gave the Minister of Municipal Affairs to abolish local governments

The legislation also laid the foundation for subsequent bills such as the Megacity Bill (Bill 104) and changes in funding structures for municipalities.

According to the traditional rules of Legislature, at the time the Omnibus Bill was passed the Bill should have been ruled inadmissible by the Speaker since it contained substantial policy implications which needed to be debated and discussed.

The reason for this would be so that the powers of a majority government would be restrained by requiring it to submit each specific initiative to debate.

However the Speaker of the Legislature at the time, Al McLean, ruled in the  government’s favour and the bill passed.

The Ontario PC party also used other strategies to pass legislation.

In a  report published by the Caledon Institute of Social Policy titled: Act in Haste…The Style, Scope and Speed of Change in Ontario  the authors observed that a common tactic used by the Harris Conservatives during their term, was to speed up the legislative process on controversial Bills by imposing time allocationsTime allocation is the amount of time allowed in the Legislature for debate and public consultation on legislation before it is turned into law.

The authors of the paper found that the Harris Conservatives used the time allocation tactic with 12 pieces of central legislation.  These included legislation affecting municipal restructuring, education, social assistance, health care, public libraries, and the labour market.

The graph below depicts their findings on bills affected by imposed time allocation from 1995 – 1997.

Bills Affected by Time Allocation

Bills Affected by Time Allocation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The report also found that public consultation on bills that the Harris Conservatives wanted to push through were also limited in 7 of 9 policy areas because the Conservatives imposed restrictions on the number of days legislative committees could consult with the public.

The graph below depicts their findings.

Debate Limitation

 

 

 

 

 

 

 

 

 

Thus as can be seen, the Progressive Conservatives has used their majority mandate to pass through omnibus bill legislation via legislative instruments such as time allocation as well as limiting the number of public consultation days.

The Harris PC’s used their newly formed majority government in order to legislate changes in Ontario’s Freedom of Information laws and they did this by passing through an Omnibus Bill.

Freedom of Information

Schedule K of the Omnibus Bill 26 had amended the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act.

The amendment permitted the establishment of the following:

  • New fees for appeals of access to information decisions
  • Permit charges for the first two hours of search time in relation to access requests
  • Permit heads of agencies being able to deny access to freedom of information records on the basis that requests are “frivolous or vexatious”
  • The Lieutenant-Governor in Council’s ability to permit to establish regulations for determining what constitutes a “frivolous or vexatious” request.

Naturally, the Privacy Commissioner of Ontario had expressed his reservations against this proposed legislation.

On December 18, 1995 the Information and Privacy Commissioner of Ontario, Tom Wright, appeared before a sub-committee on the Omnibus bill 26. The full details of the sub-committee meeting on the omnibus bill can be read here.

Wright had said, “I am concerned about the nature and scope of the amendments that have the potential to damage the carefully constructed foundations of Ontario’s access and privacy system, a system which I think by all reasonable standards has served the public well since its inception in 1988.

Turning specifically to the amendments in K, in the area of fees…I have commented publicly on many occasions that government is merely the custodian, not the owner, of the personal information it possesses. The true owner is quite simply the person to whom the information relates. In most cases, individuals are not given a choice about supplying their personal information to government; they are required to do so. I feel that in such circumstances it is unreasonable and unwarranted to charge a fee for access. To do so would amount to requiring someone to pay for something which is already theirs.

I will also tell you that no other jurisdiction in Canada imposes an application fee for the right of access to one’s own personal information. Other jurisdictions do have some charges relating to personal information which basically relate to a charge for photocopies of copies of records that contain your personal information. A comparison with other Canadian jurisdictions also indicates that Ontario’s new fee structure would make access to information, in my opinion, more expensive than anywhere else. Neither the federal government nor any other province has a fee for appeals in their freedom of information system. Requiring individuals to pay a fee to appeal a decision to deny access would result, at a minimum, in individuals paying twice for information they may have already been entitled to in the first place.

It’s interesting, some of the potential side effects, if you will, of introducing an appeal fee. It could also penalize individuals or business entities who would be required to pay an appeal fee to protect their personal or commercial interests, even though they had no role in initiating the original request for information.

The other change that’s being made, and the other major change, in my opinion, is the decision to eliminate the two hours of free search time which presently exist. In our present system, the vast majority of requests are responded to within this two-hour window and fees are not an issue. If requesters are now assessed a fee for all search-related costs, this could result in a significant increase in the number of fee appeals and create increased work for both my office and government organizations. Members of the public might also legitimately ask what they are receiving for their application fee if all costs associated with responding to their request are chargeable under the new fee structure.

By way of summary, in my opinion, the multifaceted fee system contained in Bill 26 would introduce operational and administrative complexities at a time when streamlining and simplifying the access to information scheme is an important objective. Coupled with that is that it has the real potential to adversely affect the right of Ontarians to access to government-held information.”

 

Tom Wright also went on to discuss privacy implications for several other schedules of Omnibus Bill 26.

Wright said, “I have two other brief comments with respect to two other schedules. The first is schedule E. Our concern with this proposed amendment relates to the requirement that every vehicle must carry a tracking device. We believe that such a requirement has the potential for serious implications for personal privacy. Law-abiding citizens going about their daily business on a public highway could have their comings and goings monitored and tracked by a government computer. Furthermore, there are no restrictions on the use of the information that is collected.

Schedule O amends the Mining Act and it provides that its confidentiality provisions prevail over the provincial Freedom of Information and Protection of Privacy Act to protect financial and commercial information. Both the provincial and municipal acts have rigorous exemptions to preclude disclosure of financial and commercial information that should properly be exempt. What this amendment would do would be to remove such information entirely from the purview of the freedom of information legislation and it would make it impossible for the public to scrutinize transactions of public bodies when such scrutiny is necessary and appropriate.

Wright proceeded in finishing off his speech by saying, “Freedom of information is about the accountability of government organizations, and access to general records is one of the public’s most powerful tools for exerting democratic controls over public institutions. In challenging times such as these, the public’s ability to scrutinize the workings of government must remain a vital part of a democratic process. Or, as was said in volume 2 of the report of the Commission on Freedom of Information and Individual Privacy in 1980, commonly referred to as the Williams commission, and it forms the basis of Ontario’s legislation, “To be well governed is to be well informed.

 

Ramani Nadarajah, a lawyer for the Canadian Environmental Law Association (CELA), also spoke out against the implications of the omnibus bill on privacy and the environment.

I’d like to first of all deal with schedule K, which are the amendments to the freedom of information act. A new section is created under Bill 26 providing government institutions with the power to deny access to documents on grounds that a request is frivolous and vexatious…the term “frivolous and vexatious” provides an extraordinarily broad ambit for refusal. Furthermore, it’s entirely subjective criteria. The amendments also make it easier for the government to dismiss appeals. A new section is created allowing the commissioner to dismiss an appeal if the notice of appeal does not disclose a reasonable basis for concluding the record exists. This creates an onus on the requester to demonstrate the existence of a record, something that a requester will rarely be able to do. Both of these proposed amendments have the potential to create a shroud of secrecy which is exactly what the FOI act was intended to guard against.

Moving on to schedule M, which is the amendments to the Municipal Act and other statutes… the changes to the Conservation Authorities Act. It provides municipalities with power to dissolve conservation authorities and to sell land. We are concerned that with the large cutbacks to funding for municipalities, selling off the land will provide an attractive source of much-needed revenue. The changes could permanently destroy provincially significant areas which were meant to be protected and preserved for the residents of Ontario and for future generations.

I’ll now move on to deal with schedule O. These are the amendments to the Mining Act…Bill 26 will allow mining corporations to file closure plans as opposed to obtaining the director’s acceptance of the plan. Essentially the amendments are a move towards self-regulation by the mining industry. It’s our submission that these proposed amendments will undermine environmental protection. Closure plans provide a very key proactive mechanism for ensuring mining companies minimize adverse environmental impact and rehabilitate the site. It’s only through rigorous environmental standards incorporated in closure plans that we will be able to ensure against environmental catastrophes such as the 1990 tailings spill which occurred at the Matachewan Consolidated Mines, Ltd site.

That tailings spill was the largest in Ontario’s history, causing the disruption of the drinking water supply for at least three communities and resulting in the evacuation of homeowners. The spill cost the provincial government over $2 million in cleanup, although the final figures have yet to be tabulated…Finally, the potential to exempt mining corporations from liability is troubling. Bill 26 creates two new provisions which exempt mining corporations from potential environmental liability.

As a result of the proposed amendments, the cost for all future environmental problems will have to be borne by the crown once a surrender is made. This result is undesirable, in light of the large deficits currently faced by the provincial government.”

 

And the Media Alliance for Access to Government Information also raised their objections. The Media Alliance was coordinated by the Canadian Committee to Protect Journalists, comprised of the Canadian Association of Journalists, The Computer Assisted Reporting Network, PEN Canada, ARTICLE 19 (International Centre Against Censorship), the Writer’s Union, the Newspaper Guild, the Book and Periodical Council, and the Communications, Energy and Paperworkers Union, and is endorsed by the Canadian Media Guild and the Southern Ontario Newspaper Guild.

Members of this alliance sent a letter to each MPP saying, “The proposed changes to the laws regulating access to government information will so severely restrict public disclosure in matters relating to the government, that many of us feel compelled to come forward and defend the democratic principles we value.”

The Media Alliance was arbitrarily refused permission to speak at the public hearings on Bill 26.

The effects of the omnibus bill on the Freedom of Information act would have major implications for the province of Ontario as more and more bills would pass.

And the core reason for streamlining governmental legislation would be for generating economic growth through job creation by the private sector.

In order to spur investment and entice the private sector, the Harris Conservatives set about to a unique task force with a mandate to trim red tape within the government in order to make it easier for businesses to engage in commerce.

Red Tape Commission

Upon coming into office in the 1995 election the Mike Harris Conservatives proclaimed grand ideas about reducing the net provincial debt, which was 80 billion by the time they came in office.

Throughout their first term in office, one of the government’s biggest goals was to set out to create the “Red Tape Commission” in 1996 to deal with the 1995 election commitment to reduce red tape for small businesses and individuals and to promote business planning within the public sector.

Eliminating red tape was one of the five main planks that the Harris PC’s campaigned on to win elected office. Evidence for this can also be found in the original Common Sense electoral manual which states, “We will appoint an arms-length commission on red tape to review all current regulations affecting businesses. Any regulation which can’t be justified will be eliminated within 12 months of a Harris government taking office.”

The Red Tape Review Commission was a body largely composed of Progressive Conservative MPP’s and senior civil servants that were appointed by the Harris PC government. The Commission was established with the aim of eliminating government requirements perceived to impede job creation or to waste taxpayers’ time and money.

Throughout the lifetime of the Commission’s existence (up until when the McGuinty Liberals came to power in 2003), the commission set about requesting each Ontario ministry to review the legislation for which they are responsible for and to only make proposals which met certain criteria as established by the commission  such as:

  • Decreasing regulatory burden on business of institutions;
  • Increasing efficiencies of government;
  • Providing the framework or authority to eliminate obsolete or unnecessary regulation;
  • reducing government costs in administering regulatory measures’
  • Resulting in improved customer service
  • reducing duplication with other levels of government (i.e. municipal, school boards)
  • facilitating harmonization with other jurisdictions;
  • removing barriers to economic growth or job creation
  • changing the way that matters are dealt with so that the emphasis is on administrative solutions or self-regulation, rather than prescriptive regulations

The Red Tape Commission published their first report in 1997, and outlined 132 recommendations to reduce red tape. The report was titled: “Red Tape Review Commission, Cutting the Red Tape Barriers to Jobs and Better Government, Final Report of the Red Tape Review Commission”

And the Commission also developed the Regulatory Impact and Competitiveness Statement (RICS) to prevent the creation of additional red tape.

This tool provided government ministries and agencies with a template to quantify costs and benefits, as well as consider the full spectrum of regulatory options (e.g., voluntary codes of conduct, self-regulation, co-regulation, et c.) before implementing new regulations. However, provincial ministries were not obligated to complete an RICS when designing regulations.

The Harris Conservatives attempts to quantify costs and benefits in order to determine the layer of regulation needed has been seen as problematic.

As noted by Lester Lave in the book titled: “Risks, Costs, and Lives Saved: Getting Better Results from Regulation” in Chapter 6 titled: “Benefit-Cost Analysis: Do the Benefits Exceed the Cost?” Lave notes that while the increased use of cost-benefit analysis will enhance regulatory design, it should also be recognized that strict adherence to cost-benefit analysis can be misleading.

This is especially the case when the primary benefits from regulation are expected to be of a public interest nature (e.g., environmental quality) which are extremely difficult to quantify checklists and guidelines do not imply that the problems associated with regulatory design by government will be removed. A number of problems will still exist,including the impossibility of quantifying some costs and benefits. Under such circumstances the results of cost-benefit analysis may merely reflect the preferences of the analyst (e.g., an ideological commitment to economic efficiency or state intervention) rather than an objective and comprehensive assessment of the associated costs and benefits of a particular regulatory option. (pp. 104-134)

To see an example of a ministry responding to changes brought by the Red Tape Reduction Act ,  a memo from the Ministry of Consumer and Commercial Relations has been provided.

 

Implications

The legislative strategies of packaging multiple item omnibus bills for speedy implementation and time allocation tactics both allowed the Harris Conservative government to streamline the passage of certain key pieces of laws and regulations, such as the Red Tape Reduction Act which would eventually hold profound implications for the people of Ontario.

The seeming removal of what was seen as “red tape” was used by the government to justify downloading provincial responsibilities onto municipalities, as well as amalgamating the city of Toronto, public health tragedies such as the Plastimet fire and the Walkerton tragedy, and many others.

The evidence indicates that the Harris PC’s systematically chose to run a government passing various laws to:

  • Hastily speed up legislative changes through the use of time allocation and limitation on the number of days the public received for consultation of legislation,
  • Constrict the flow of Freedom of Information requests from members of the media and the general public
  • Establish a Red Tape Commission in order to reduce the amount of red tape for private industry to engage in business & commerce

In some instances the Harris PC’s would bring in legislation even with great discontentment from the voter constituents. This is because Harris sought to bring a a new vision for Ontario, without adequate due regard for whether public and civil society were or were not ready for it.

There are numerous examples of this. The Greater Toronto Area (GTA) held a referendum on whether the different boroughs should integrate as one amalgamated megacity. Constituents voted in the referendum and an overwhelming 70% rejected the amalgamation.

However, the Mike Harris led Conservatives continued in carrying out the amalgamation of the city of Toronto, even with the overwhelming negative reaction to the proposal.

The Municipal Affairs Minister of the time, Al Leach said that an amalgamated Toronto would “have a strong, unified voice to sell itself internationally” in the global marketplace.

Leach added, “We have the potential to take a great city and make it even greater.

Yet many years later, Leach acknowledged that had the government not been under a self-imposed time constraint to enact municipal reform by the end of 1997, certain items would not have been passed as part of omnibus legislation. Leach said, “I would have kept the issues separate – dealt with amalgamation, and done that separately without some of the other things.”

An in-depth analysis into the amalgamation of Toronto can be found in Part 4 of this series- Amalgamated Cities.

And upon looking back on the disruption caused by Omnibus Bill 26, Mike Harris told Macleans,

“it should have been better managed and better understood.”

All this leads to the explanation that the Harris PC’s were interested in bringing about dramatic social change, regardless of the effects, based on an adherence to the “Common Sense reform” platform, and political ideology.

Mike Harris himself has reiterated that his governing style was more transformative in nature, rather than transactional.

This is evident in an interview he had with Steve Paikin of The Agenda.

Just slightly after the 10 minute mark, Steve Paikin asks Mike Harris, “In my experience, it seems there’s been two kinds of leaders who become prime ministers or premiers. There are the transactional ones, and the transformational ones. I don’t think there’s much doubt about the fact that you were a transformational one. When you got the job, did you know that was what you wanted to be?”

Mike Harris responds with, “Clearly, yes, I felt there were [transformational] things that have to be done. I didn’t enjoy managing as much as making change. I was change oriented. If you wanted a premier that was going to manage things as they came along, and would keep everybody happy, [h]ave a team of people come to a consensus on it, that’s a different kind of leader.”

The interview can be seen below.

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