1.5. Government agencies
The definition of government agency was developed 30 years ago. We should now take advantage of a revision of the Act to update the definition, ensure that it reflects today’s reality and close the loopholes it currently has.
At the moment, the Act provides that public service agencies may be designated under the Act. The Act also says that if the majority of the members or directors are appointed by the Lieutenant Governor in Council,14 the agency in question is subject to the Act.
This approach may have been an innovative idea in 1986, but it is no longer the case. And the Commissioner has been unable to intervene in many situations.
Tarion is a well-known example that the Commissioner has mentioned often. Tarion administers the Ontario New Home Warranties Plan, educates new home buyers and new home owners about their warranty rights and responsibilities, and resolves disputes between builders and homeowners. It has a 16-member board of directors; five of the members are appointed by the government. It also has a nominations committee composed of five members, two of whom are appointed by the government. Because of the requirement that the majority of the board members be appointed by the government, this public agency is not subject to the Act. Even though the Commissioner’s Office has resolved some complaints about Tarion in the past, concerns persist regarding the accountability of this so-called “arm’s-length” agency. It would be much more efficient if the Commissioner could intervene directly with Tarion.
Another example is the Retirement Homes Regulatory Authority (RHRA). Even though it offers service in French, the RHRA is not, officially and legally speaking, subject to the Act because only four of the nine members of its board of directors are appointed by the Lieutenant Governor in Council, and the Minister designates one board member as the chair.
The need to update the definition of government agency is quite urgent. A more modern definition would be helpful, as evidenced by the New Brunswick and federal laws.
In New Brunswick, the term “institution” means the following:
“(…) an institution of the Legislative Assembly or the Government of New Brunswick, the courts, any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of the Legislature or by or under the authority of the Lieutenant-Governor in Council, a department of the Government of New Brunswick, a Crown corporation established by or pursuant to an Act of the Legislature or any other body that is specified by an Act of the Legislature to be an agent of Her Majesty in right of the Province or to be subject to the direction of the Lieutenant-Governor in Council or a minister of the Crown; (institution)”.15
At the federal level, an institution is defined as follows:
“(…) any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of Parliament or by or under the authority of the Governor in Council, (…) a department of the Government of Canada, (…) a Crown corporation established by or pursuant to an Act of Parliament, and (…) any other body that is specified by an Act of Parliament to be an agent of Her Majesty in right of Canada or to be subject to the direction of the Governor in Council or a minister of the Crown”.16
A number of transformations have altered the means by which government services are delivered: not only delegation and devolution to so-called arm’s-length bodies, but also transfer of responsibilities to agencies mandated by government ministries to provide programs and services that used to be delivered by the province. In view of these changes, the definition of government agency, particularly the part concerning the number of board members appointed by the government, is outdated.
14 The Lieutenant Governor in Council approves the appointments on the advice of the Executive Council (the Cabinet).
15 Official Languages Act of New Brunswick, c. O-0.5.
16 Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.), s. 3(1).