Legislative, Judicial, and Order-in-Council Roles
| Author | Timothy Hadwen/David Strang |
| Pages | 202-277 |
202
Legislative, Judicial, and
Order-in-Council Roles
A. INTRODUCTION
Certain roles essential to the functioning of the government of Ontario
are not created and managed through normal public service employ-
ment practices and are not covered by the Public Service of Ontario
the independence required for these exceptional positions.
The Canadian Constitution provides “There shall be a Legislature
for Ontario consisting of the Lieutenant Governor and of One House,
styled the Legislative Assembly of Ontario”2 and that certain Ontario
judges shall be federally appointed.3 Other judges that are provincially
appointed are treated similarly to their federal counterparts. All these
constitutionally delineated roles require such a substantial degree of
independence that they are not to be viewed as “employees.” Unique
terms and conditions of recruitment, retention, oversight, and compen-
sation have been established for these positions — Lieutenant Governor,
members of provincial Parliament (MPPs), and judges — and for those
who directly support MPPs in particular, the Oce of the Legislative
Assembly, and the ocers of the legislature. Judges are supported on
special terms by court sta who are public servants.
2 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 134, reprinted in RSC 1985,
App III, No 5, s 69 [Constitution Act, 1867].
3 Ibid, s 96.
Legislative, Judicial, and Order-in-Council Roles | 203
Order-in-council appointments, which are non-constitutional, are
created and governed solely by the standards set through special provi-
sions in provincial statutes. Although much less protection is accorded
to them by the terms of their appointment and employment, they are
still expected to make decisions independent of specific government
direction.
B. LIEUTENANT GOVERNOR
The Lieutenant Governor is the personal representative of the Crown
and is formally the chief executive ocer of the province with respons-
ibility to exercise the powers of the Crown, including ensuring there is
always a premier able to command the confidence of the legislature,4
and to “summon and call together” the legislature.5 The Lieutenant
Governor endorses Cabinet decisions, which gives them the force of
law and brings an end to the governmental approval process. Where an
Act refers to the Lieutenant Governor in Council, it is referring to the
Lieutenant Governor acting on the advice of Cabinet.
The Canadian Constitution establishes the position of provincial
Lieutenant Governor is to be appointed by the Governor General in
Council, meaning acting on the advice of the federal Cabinet.6 The
nature of Cabinet’s advice is not justiciable unless there is a possibility
that the action has violated rights under the Canadian Charter of Rights
and Freedoms (the Charter).7
Prior to taking oce, the Lieutenant Governor takes oaths of alle-
giance and oce.8 Once appointed, the Lieutenant Governor is not an
agent of the federal government but is obliged by constitutional con-
vention to act on the advice of the provincial Cabinet.
4 Lieutenant Governor’s website, online: http://www.lgontario.ca.
5 Constitution Act, 1867, above note 2, s 82.
6 Ibid, ss 58 and 13. An administrator can be appointed to fulfill the role during
the Lieutenant Governor’s absence, illness, or other “inability”; ibid, s 67.
7 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. See
Operation Dismantle v The Queen,[1985] 1 SCR 441 as discussed in Acadian
Society of New Brunswick v Right Honourable Prime Minister of Canada, 2022
NBQB 85, dealing with the appointment of a unilingual Lieutenant Governor in
Canada’s only ocially bilingual province.
8 Constitution Act, 1867, above note 2, s 61.
204 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW
The Lieutenant Governor is appointed “during the Pleasure of the
Governor General.”9 During the first five years of their tenure, the Lieu-
tenant Governor can only be removed for cause. The appointment can
be for longer than five years, but it has been agreed that a longer appoint-
ment, with the resultant loss of the “for cause” protection, results in a
loss of security of tenure that is incompatible with the desired independ-
ence of the oce.10 Ontario practice has been five-year terms.
The Lieutenant Governor’s salary is to be set and paid by the federal
Parliament,11 done through the federal Salaries Act, which provides
for statutory adjustments in accordance with a wage index.12 All other
costs of the oce are paid provincially.
C. MEMBERS OF PROVINCIAL PARLIAMENT
MPPs are governed by the Legislative Assembly Act.13 Conflict of interest
requirements are set out in the Members’ Integrity Act, 1994.14 Pensions
tive Assembly have unique employment related obligations and rights in
part because they are a form of self-governing collective.16 The speaker
has a leading role as “the guardian of the rights, immunities, privileges
and powers of the Assembly, its committees and its members.”17
9 Ibid, s 59.
10 W. Laurier, Canada, House of Commons, Debates, 31 January 1893, Vol XXXVI
at 84, as discussed in John T. Saywell, The Oce of the Lieutenant-Governor:
A Study in Canadian Government and Politics (Toronto: University of Toronto
Press, 1957) at 229.
11 Constitution Act, 1867, above note 2, s 60.
12 Salaries Act, RSC 1985, c S-3, s 3.
13 RSO 1990, c L.10 [Legislative Assembly Act]. Provincial legislation now covers
what was previously addressed by the Constitution Act, 1867, above note 2,
ss 82–89.
14 SO 1994, c 38 [Members’ Integrity Act].
15 SO 1996, c 6, Sch A [MPPs Pension Act].
16 The seminal case on parliamentary operations is Canada (House of Commons)v
Vaid, 2005 SCC 30 [Vaid]. For a discussion of the obligations of members of
the federal Parliament, see Lindsay Aagaard, “Fiduciary Duty and Members of
Parliament” (2008) 31:2 Canadian Parliamentary Review 31.
17 Legislative Assembly Act, above note 13, s 28.1.
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