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23. Private Bill Practice
My understanding of the private bill procedure is that it was established to protect the public against the uncontrolled granting of special powers to private interests. I believe that there is no quarrel about this interpretation. Speaker Lucien Lamoureux (Debates, February 22, 1971, p. 3628) The distinction between public and private legislation has been inherited from British practice.[1] Private bills differ from public bills by their intent, content and method of passage. By definition, the purpose or intent of a private bill is to confer special powers or benefits upon one or more persons or body of persons, or to exclude one or more persons or body of persons from the general application of the law. A public bill may be broadly described as a bill which deals with a matter of public policy for the benefit of the community at large and is introduced directly by a Member of the House. On the other hand, a private bill relates directly to the affairs of an individual or group of individuals, including a corporation, named in the bill; the bill seeks something which cannot be obtained by means of the general law and is founded on a petition from an individual or group of individuals.[2] Private bills must not be confused with private Members’ bills. Although private bills are sponsored by private Members, the term “private Member’s bill” refers only to public bills dealing with a matter of public policy introduced by Members who are not Ministers. Private bills are subject to special rules in both Houses of Parliament. Since private bills ask Parliament to adjudicate upon the interests of private parties and to be watchful over the interests of the public, they are said to involve Parliament in both a judicial capacity and a legislative capacity.[3] Private bills can originate in either the House of Commons or the Senate, although most private bills originate in the Senate where the fees and charges imposed on the promoter are lower.[4] Private bills must pass through the basic stages common to all legislation; they must also meet certain parliamentary requirements which distinguish them procedurally from all other types of bills. Private bill procedure is unique in its origins, forms and principles and has changed very little since 1867. While they are now relatively rare, private bills once constituted a large part of the legislative business of the House. In the early years of Confederation, the House dealt with a large volume of private legislation to establish companies to build and operate railways and to incorporate interprovincial companies since no other legal authority allowed such corporations to be formed. In addition, private bills requesting the dissolution of marriages occupied much of the House’s time because Parliament had been granted the exclusive jurisdiction to legislate with respect to marriage and divorce. Today, private legislation accounts for only a minuscule percentage of House business.[5] Most private bills now deal with the incorporation of, or amendments to the acts of incorporation of, religious, charitable and other organizations and of insurance, trust and loan companies.[6] In recent years, private legislation has been used for the amalgamation of insurance companies and the revival of small business corporations which had previously been dissolved.[7] Although the reasons for this decrease in the passage of private bills vary, it is to a large degree due to changes to the general law, such as the Dissolution and Annulment of Marriages Act in 1963,[8] and the Marriage (Prohibited Degrees) Act in 1990,[9] and administrative mechanisms found in present acts such as the Canadian Commercial Corporation Act,[10] the Canada Corporations Act[11] and the Bank Act.[12] Since then, a few changes have been made to the rules pertaining to private bills. In June 1994, the House removed the requirements for petitions for private bills to be filed within the first six weeks of a session and for private bills to be presented within two weeks of a favourable report on the petition.[13] In June 2005, the Standing Committee on Procedure and House Affairs was given responsibility, through an amendment to Standing Order 108(3)(a)(iv), for the consideration of business related to private bills.[14] This chapter explains in general terms the kinds of bills classed as private, describes the principles of private bill procedure and how they are applied, and gives an overview of the particularities of the legislative process for such bills in the House of Commons. [1] Private bills trace their origins to the medieval English Parliaments, and their peculiar procedure is explained by that history. In the early history of Parliament, special laws for the benefit of private parties and judicial decrees for the redress of private wrongs were founded on petitions and were not easily distinguishable in principle or in form. When petitions sought remedies which the common law afforded, the parties were referred to the ordinary tribunals. But when an individual or group was unable to obtain relief from the common law courts, the King was petitioned. The manner of receiving and trying petitions was judicial rather than legislative. As noted in May, T.E., A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament, South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 1st ed., 1844), pp. 301‑2: Receivers and triers of petitions were appointed, and proclamation was made, inviting all people to resort to the receivers. These were ordinarily the clerks of the chancery, and afterwards the masters in chancery (and still later some of the judges), who, sitting in some public place accessible to the people, received their complaints, and transmitted them to the auditors or triers. The triers were committees of prelates, peers, and judges, who had power to call to their aid the lord chancellor, the lord treasurer, and the serjeants‑at‑law. By them the petitions were examined; and in some cases the petitioners were left to their remedy before the ordinary courts; in others, their petitions were transmitted to the judges on circuit; and if the common law offered no redress, their case was submitted to the High Court of Parliament.… In the reign of Henry IV, petitions began to be addressed, in considerable numbers, to the House of Commons. The courts of equity had, in the meantime, relieved Parliament of much of its remedial jurisdiction; and the petitions were now more in the nature of petitions for private bills, than for equitable remedies for private wrongs. Of this character were many of the earliest petitions; and the orders of Parliament upon them can only be regarded as special statutes, of private or local application. As the limits of judicature and legislation became defined, the petitions applied more distinctly for legislative remedies, and were preferred to Parliament through the commons; but the functions of Parliament, in passing private bills, have always retained the mixed judicial and legislative character of ancient times. [2] See Speaker Lamoureux’s ruling, Journals, February 22, 1971, p. 351. [3] Bourinot, Sir J.G., Parliamentary Procedure and Practice in the Dominion of Canada, 4th ed., edited by T.B. Flint, Toronto: Canada Law Book Company, 1916, pp. 558‑9. See Todd, A., A Treatise on the Proceedings to be Adopted in Conducting or Opposing Private Bills in the Parliament of Canada; and the Standing Orders of Both Houses in Relations Thereto, 3rd ed., Ottawa: John Durie & Son, 1868, pp. 1‑2: In passing Private Bills, while Parliament still exercises its legislative functions, its proceedings also partake also [sic] of a judicial character; the parties interested in such bills appear as suitors, while those who apprehend injury are admitted as adverse parties to the suit. Much of the formality of a Court of Justice is maintained; conditions are required to be observed and their observance proved by the promoters of a bill, and if they abandon it and no other parties take it up, the bill is dropped, however sensible the House may be of its value. [4] This was done as a deliberate effort to direct private legislation to the Senate. If the bill originates in the Senate, the promoter only has to pay a fee of $200 (Senate Rule 110) instead of a fee of $500 in the House (Standing Order 134(2)), together with the cost of printing the act in the statutes. This difference in fees was first established in 1934 when the Standing Orders of the House were changed to “secure the freedom of this house from the initial consideration of large numbers of private bills by increasing the business that may be presented to the second chamber in the way of private legislation” (Debates, June 30, 1934, pp. 4509‑10). This has led to most private bills being introduced in the Senate. Since 1970, only six private bills have originated in the House, the last in 1978: Bill C‑164, An Act to incorporate Unity Bank of Canada, on March 29, 1972 (Journals, p. 232); Bill C‑264, An Act respecting the Eastern Canada Synod of the Lutheran Church in America, on April 3, 1974 (Journals, p. 94); Bill C‑1001, An Act to provide an exception from the general law relating to marriage in the case of Richard Fritz and Marianne Strass, on July 30, 1975 (Journals, p. 750); Bill C‑1002, An Act to incorporate the Northland Bank, on December 20, 1975 (Journals, p. 977); Bill C‑1001, An Act to incorporate the Continental Bank of Canada, on July 14, 1977 (Journals, p. 1371); Bill C‑1001, An Act respecting Bell Canada, on April 12, 1978 (Journals, p. 638). [5] For example, during the First Session of the Thirty‑Seventh Parliament (January 2001 to September 2002), three private bills were considered by the House for a total of 38 minutes; during the First Session of the Thirty‑Ninth Parliament (April 2006 to September 2007), the House considered one private bill for a total of two minutes. [6] See, for example, An Act to amend the Act of incorporation of the Grand Lodge of the Benevolent and Protective Order of Elks of the Dominion of Canada, S.C. 1980‑81‑82‑83, c. 186; An Act to amend An Act to incorporate the Royal Society of Canada, S.C. 1992, c. 58; An Act to amend the Act of incorporation of the Board of Elders of the Canadian District of the Moravian Church in America, S.C. 2000, c. 36; An Act to amend the Act of incorporation of The General Synod of the Anglican Church of Canada, S.C. 2005, c. 56. [7] See, for example, An Act to amend and repeal The Alliance Nationale Consolidated Act, 1945, S.C. 1986, c. 64; An Act to revive Yellowknife Electric Limited and to provide for its continuance under the Canada Business Corporation Act, S.C. 1987, c. 56; The Financial Advisors Association of Canada Act, S.C. 2003, c. 29. [8] S.C. 1963, c. 10. This statute authorized the Senate alone to dissolve or annul marriages by resolution. Prior to the enactment of this Act, the innocent party to divorce in either Newfoundland or Quebec (where provincial courts were not empowered to hear divorce cases) would petition Parliament for a private bill to dissolve the marriage. The petition would allege a matrimonial offence and pray for “relief”. Most petitions were first considered in the Senate before its Committee on Divorce (where the fees for a private bill were less than the fees imposed in the House of Commons). The majority of divorce bills were uncontested and passed both Houses without question. However, if any Member questioned the reasons for the divorce or if the participants in the cases wished to be heard, the Standing Committee on Miscellaneous Private Bills and Standing Orders had the authority to rehear the case. Petitioner and respondent, both represented by counsel, would appear before the Committee, which would function as a court of law. The House dealt with the bill when a report was received from the Committee. See Dawson, W.F., Procedure in the Canadian House of Commons, Toronto: University of Toronto Press, 1962, p. 243. In 1968, the Divorce Act (S.C. 1967‑68, c. 24) set up divorce courts in these two provinces, and the Senate was no longer empowered to dissolve or annul marriages. [9] S.C. 1990, c. 46. [10] R.S. 1985, c. C-14. [11] R.S. 1970, c. C-32. [12] S.C. 1991, c. 46. [13] Standing Order 132 was deleted on June 10, 1994. See the Twenty‑Seventh Report of the Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, June 9, 1994, Issue No. 16, p. 8. See also Journals, June 8, 1994, p. 545; June 10, 1994, p. 563. [14] See the Thirty‑Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House and adopted on May 11, 2005 (Journals, pp. 738-9). The amendment came into effect on June 30, 2005. |
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