Judgments

Decision Information

Decision Content

A-810-81
Butler Metal Products Company Limited (Appli- cant)
v.
Canada Employment and Immigration Commis sion and Attorney General of Canada (Respond- ents)
Court of Appeal, Heald, Urie JJ. and Kelly D.J.— Toronto, May 17; Ottawa, June 8, 1982.
Judicial review — Applications to review — Unemployment insurance — Review Panel ruling applicant not eligible for premium reduction for 1978 due to failure to file renewal application before deadline specified in Commission Rule 75-20 — Commission rejecting applicant's appeal from Review Panel's decision on basis of strict application of Rule 75-20 without considering whether mitigating circumstances constituted "special reasons" for which deadline could be extended — Applicant contends it neither had knowledge of nor was informed of, Rule 75-20 — Applicant further con tends Unemployment Insurance Regulation 65(1), under which Rule 75-20 was made, is invalid because Commission lacked legislative authority to make it at time promulgated — Alter natively, applicant contends Regulation 65(1)(b) is ultra vires Commission — Application allowed — Unemployment Insur ance Act, 1971, S.C. 1970-71-72, c. 48, ss. .58(y), 64(4),(5),(6) Jas rep. by S.C. 1974-75-76, c. 80, s. 23] — Unemployment Insurance Regulations, SOR/73-16, s. 65 — Employment and Immigration Reorganization Act, S.C. 1976-77, c. 54, s. 71 — Statutory Instruments Act, S.C. 1970-71-72, c. 38, ss. 2(1)(b),(d), 5, 6, 9, 11 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The applicant was disqualified from receiving a premium reduction in respect of its wage-loss or salary continuance plans for 1978 due to having failed to file the appropriate renewal application before the deadline set by the Commission. The Commission had sent the applicant a "Renewal Application" and "Final Notice" on March 15 and May 2, 1977, respective ly, without response. After the Commission had sent the appli cant a premium reduction "Disqualification Notice" on August 9, 1977, the applicant advised the Commission that it had no record of having received either the renewal application or final notice, and had no knowledge of a deadline or any requirement of filing a renewal application. It did, however, admit that because it had undergone two changes in company controllers during the relevant times, these documents may have been received and misplaced. The applicant requested that, in view of these circumstances, the Review Panel allow its claim to a premium reduction for 1978, but this was refused. The Com mission, relying on a strict application of Rule 75-20, rejected the applicant's appeal from the decision of the Panel without considering whether the mitigating circumstances put forward by the applicant constituted "special reasons" for which the
deadline could be extended. Rule 75-20, passed pursuant to Regulation 65(1) which authorizes the Commission to require that an application for reduction of an employer's premium be made "within such time as the Commission may direct before the first day of each subsequent consecutive year for which a reduction is applied for", stipulates that a renewal application must be filed within "60 days from the date on which the renewal application is mailed to an employer, or such longer period as the Commission may in any case, for special reasons allow". The applicant contends that Rule 75-20 is an internal rule and that it was neither advised of the rule's existence nor of the possibility that the time for filing could be extended for special reasons. It also contends that Rule 75-20 is invalid because the Commission lacked legislative authority to promul gate Regulation 65(1), under which the rule was made, at the time that Regulation was brought into force. Alternatively, the applicant contends that Rule 75-20 is invalid because Regula tion 65 is ultra vires the Commission.
Held, the application is granted. Rule 75-20 is an internal rule of the Commission which was not made public or available to interested parties. Through its failure to make the applicant aware of the sixty-day limitation period and of the possibility of it being extended for special reasons, the Commission proceed ed in a manner that resulted in unfairness to the applicant. This is sufficient, in itself, to require that the decision be set aside. Further, there is no indication that the Commission, in making its decision, took into account the mitigating circumstances put forward by the applicant in order to determine whether there were special reasons for an extension of the limitation period. In failing to do so it erred in law. With respect to the Commission's legislative authority to promulgate Regulation 65, at the time of its coming into force in December 1972, paragraph 58(y) and subsections 64(4) and (5) of the Act did not empower the Commission to make regulations concerning the manner and time within which applications for premium reductions could be made. It was not until January 1976 that the legislature delegated such authority by enacting subsection 64(6). Thus, at the time Regulation 65 was brought into force there was no empowering legislation and, as a result, the Regulation is invalid. Further, even assuming that the Commis sion had legislative authority to make regulations regarding applications for premium reductions, Regulation 65 would be invalid because it is ultra vires the Commission. Except with respect to the requirement that the application be made in the year in respect of which the deduction is being applied for, the language of the Regulation merely repeats the formula of the statute containing the delegation, without providing any specif ic standards of application. It therefore leaves virtually every thing to the Commission, in its discretion. The rationale of Brant Dairy Company Limited et al. v. The Milk Commission of Ontario et al. applies: a statutory body does not act within its authority by simply repeating a power in a regulation in the words in which that power was conferred. As to the question of whether section 71 of the Employment and Immigration Reor ganization Act validates Regulation 65 by continuing in force all rules and regulations issued by the Commission prior to the coming into force of that section, the case of Re Fletcher, Ex
parte Fletcher v. Official Receiver is of no assistance as it is distinguishable on the facts. Even if it could be said that section 71 does validate Regulation 65, this would not result in Rule 75-20 being validated. In enacting subsection 64(6) of the Unemployment Insurance Act, 1971 Parliament's intent was to delegate the power to prescribe the manner and time for making premium reduction applications to the Commission. By providing that this matter be dealt with by regulation it is clear that Parliament intended that the formal requirements of the Statutory Instruments Act regarding the filing, registering, coming into force and publication of regulations, be complied with so as to ensure their availability to those who are affected by them. The definitions of "regulation" and "statutory instru ment" contained in the Statutory Instruments Act, when read together, clearly encompass Commission Rule 75-20. There fore, the formal requirements of that Act apply to the rule and must be complied with before it can be said to be valid. Section 71 of the Employment and Immigration Reorganization Act did not repeal subsection 64(6) of the Unemployment Insurance Act, 1971. It is inconceivable that Parliament, in enacting section 71, intended to authorize a rule which contravened another enactment. The rules encompassed by section 71 were those which the Commission was empowered to make. Subsec tion 64(6), which relates specifically to the fixing of time limits for premium reduction applications, must be read as an excep tion to section 71, which is of general scope. Based on this construction, as regards regulations made under subsection 64(6), section 71 continues in force only those which were validly made in compliance with the Statutory Instruments Act. In that Rule 75-20 was not made in compliance with that Act, it is not a rule which, by the terms of section 71, could be given continued effect.
CASES JUDICIALLY CONSIDERED
APPLIED:
Brant Dairy Company Limited et al. v. The Milk Com mission of Ontario et al., [1973] S.C.R. 131.
DISTINGUISHED:
Re Fletcher, Ex parte Fletcher v. Official Receiver, [1955] 2 All E.R. 592 (C.A.).
COUNSEL:
Robert J. Howe for applicant. Brian Evernden for respondents.
SOLICITORS:
Aird & Berlis, Toronto, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
HEALD J.: This is a section 28 application to review and set aside a decision of the respondent Commission dated August 18, 1978 wherein it held that the applicant herein was not eligible for an unemployment insurance premium reduction for 1978. The relevant facts are not in dispute and may be summarized as follows.
The applicant, pursuant to the provisions of the Unemployment Insurance Act, 1971, S.C. 1970- 71-72, c. 48, as amended, together with the Regu lations thereunder, applied successfully for a reduction of its unemployment insurance premi ums from 1973 to 1977. On March 15, 1977, the Commission mailed to the applicant a renewal application for a premium reduction for the year 1978, with respect to the applicant's wage-loss or salary continuance plans.
On May 2, 1977, the Commission sent the applicant a "Final Notice" advising it that its renewal application for 1978 had not been received and that the applicant would be subject to dis qualification for premium reduction in the year 1978 if such application was not received in the Commission's office by May 16, 1977. On August 9, 1977, the Commission sent the applicant a "Premium Reduction Disqualification Notice" advising that its premium reduction for 1978 had been disallowed as the application was not filed with the Commission prior to the deadline date. The applicant then wrote to the. Commission advis ing that it was totally unaware of the deadline date and of the necessity to file a renewal application. It also stated that it had no record of ever having received the renewal application sent to it by the Commission on March 15, 1977 or the "Final Notice" sent on May 2, 1977. It also admitted that the documents may have been received since, during the relevant times, there were two different changeovers in the position of Company Controller and, as a result, the letters in question may have been misplaced. The applicant requested the Review Panel of the Commission, in view of these circumstances, to allow the Company's claim to its 1978 premium reduction. The Review Panel rejected the applicant's claim. The applicant then
appealed to the Commission. This appeal was heard by the Commission in Ottawa, on June 27, 1978. At that hearing, counsel for the applicant enumerated the mitigating circumstances involved, i.e.: the personnel changeover referred to supra; the notices had not been addressed to a specific individual; the time limit for filing was unclear'; the applicant's previous record clearly established that it was a good corporate citizen; and the applicant intended to continue providing its employees with the benefits of a five-twelve premi um reduction whether or not the appeal was grant ed. The Commission rejected the appeal, with one Commission member dissenting and, in doing so, stated, inter alia:
As the application was received beyond the due date, the adjudication officer had no alternative but to administer the legislation as prescribed. (Case, page 19.)
On the same page of the case, the Commission majority stated as the basis for its decision that:
... the company failed to meet the qualifying conditions as prescribed by law. The company's sickness plan must not only meet with the standards for a premium reduction, but the company must make application for a premium reduction in the prescribed time and manner ....
As its authority to prescribe time limits within which to apply for unemployment premium reduc tions, the respondent Commission relies on the provisions of Unemployment Insurance Regulation 65 which came into force on December 21, 1972 (SOR/73-16). That Regulation reads as follows:
Application for Reduction of Employer's Premium
65. (1) Every application for a reduction of the employer's premium referred to in subsection 59(1) or 60(1) shall be in a form approved by the Commission, be accompanied by such documents and information as the Commission may require and be made
(a) on or before the 30th day of September next before the first day of the first year for which a reduction is applied for; or
(b) at such time as the Commission may direct before the first day of each subsequent consecutive year for which a reduction is applied for.
(2) Upon receiving an application for a reduction of an employer's premium, an officer of the Commission shall decide whether or not a reduction shall be made.
The "Premium Reduction Disqualification Notice" of August 9, 1977 while referring to a "deadline date", did not specify what that date was.
(3) An employer may, within thirty days of the mailing of a notice of a decision made pursuant to subsection (2), apply for a review of the decision by a review panel consisting of officers designated by the Commission.
(4) An employer who is not satisfied with the decision of the review panel referred to in subsection (3) may appeal to the Commission for a final determination of the question.
The Commission states that, pursuant to said Regulation 65(1)(b), it made the following rule, effective May 1, 1975:
ANNUAL RENEWAL DATE OF APPLICATION FOR PREMIUM
REDUCTION
75-20
The Commission considered the document submitted by its Executive Director Operations and approved the proposal therein. It agreed 65(1)(b) and 73(1)(b) of the Unemployment Insurance Regulations would be 60 days from the date on which the renewal application form is mailed to an employer, or such longer period as the Commission may in any case, for special reasons, allow.
It is to be noted that the "60-day rule" invoked by the Commission supra is subject to extension by the Commission "for special reasons". However, the letter of May 2, 1977 to the applicant made no mention of a possible extension of time for special reasons. The letter clearly stated that the applicant would be disqualified if the 60-day limit was not complied with. Likewise, the disqualification notice of August 9, 1977 made no reference to a possible extension. Then, in the Commission's rea sons quoted supra, it is said that:
... the company must make application for a premium reduc tion in the prescribed time and manner ....
Again, there is no suggestion that the Commission has any power to extend the 60-day period. At the hearing before us, counsel for the applicant said that the applicant was not aware, or made aware of, the time limit rule or the possibility of a time extension, and that it was never mentioned or referred to in any of the appeal hearings. He referred to it as an "internal rule" of the Commis sion, a rule that was not made public or available to interested parties.
It is my opinion that the Commission, in light of its own rule empowering it to extend the filing date herein, if "special reasons" were established, erred in failing to determine whether or not the mitigat-
ing circumstances referred to herein by the appli cant would constitute such "special reasons". There is no indication from the Commission's rea sons that it considered whether or not the basis for an extension had been established; rather, the pas sage quoted supra makes it clear that the Commis sion was applying the 60-day rule without any possibility of extension. Additionally, it seems to me that the procedure adopted by the Commission in this case resulted in unfairness to the applicant. The Commission concedes it has an internal rule providing for a 60-day limit for filing applications which it can extend for special reasons. Yet, this applicant was not advised of the possibility of a time extension and its claim was dismissed because it was not timely. It is hard to conceive of a course of conduct more likely to be prejudicial to parties appearing before the Commission. Quite apart from the other attacks made by the applicant on the decision of the Commission, it is my view that the manner in which the Commission proceeded against this applicant, as detailed supra, would be sufficient, of itself, to require that the decision be set aside.
Dealing now with the applicant's attack on the validity of Regulation 65 itself, the applicant sub mits that at the time when Regulation 65 came into force, i.e. December 21, 1972, there was no empowering legislation authorizing the Commis sion to promulgate such a Regulation. The appli cant concedes that, with the coming into force on January 4, 1976 of subsections 64(4),(5) and (6) of the Unemployment Insurance Act, 1971 [as rep. by S.C. 1974-75-76, c. 80, s. 231 2 , the Commission
2 23. Subsections 64(4) and (5) of the said Act are repealed and the following substituted therefor:
"(4) The Commission shall, with the approval of the Governor in Council, make regulations to provide a system for reducing an employer's premium payable under this Act when the payment of any allowances, monies or other ben efits under a plan that covers insured persons employed by the employer, other than one established under provincial law, would have the effect of reducing the benefits that are payable to such insured persons under the Act, in respect of unemployment caused by illness or pregnancy, if insured persons employed by the employer will benefit from the reduction of the employer's premium in an amount at least equal to five-twelfths of the reduction, but subject to para graph (a) of section 65.
(5) The Commission shall, with the approval of the Gover nor in Council, make regulations to provide a system for reducing the premium payable under this Act when the
thereafter possessed the power to pass a regulation dealing with time limits for premium reduction applications, pursuant to the provisions of subsec tion 64(6). However, the submission is that, at the time Regulation 65 was passed and came into force, no statutory authority existed in the Com mission. Thus, in the applicant's view, Regulation 65 is invalid.
The respondent Commission's answer to that submission is to the effect that, prior to January 4, 1976, and including the period in 1972 when Regulation 65 was enacted and came into effect, paragraph 58(y) and subsections 64(4) and (5) of the Unemployment Insurance Act, 1971, as they then were, specifically conferred the power upon the Commission to make Regulation 65, including paragraph 65(1)(b), the portion of Regulation 65 relied upon in the case at bar. Those sections read as follows:
Regulations
58. The Commission may, with the approval of the Governor in Council, make regulations
(y) prescribing anything that by this Act is to be prescribed by regulations.
payment of an allowance, monies or other benefits under a provincial law to insured persons in respect of sickness or pregnancy would have the effect of reducing or eliminating the benefits that are payable under this Act to such insured persons in respect of unemployment caused by illness or pregnancy, but subject to paragraph (a) of section 65.
(6) For the purposes of subsections (4) and (5), the Commission may, with the approval of the Governor in Council, make regulations
(a) prescribing the manner and time for making an application for a premium reduction;
(b) prescribing the standards that must be met by a plan to qualify for a premium reduction and the time during which such plan must be in effect;
(c) prescribing the method for determining the amount of reduction for plans of given standards and the use to be made of actuarial calculations and estimates;
(d) providing for the making of decisions relating to premium reduction and appeals therefrom in cases of dispute;
(e) prescribing the manner in which the insured earnings of insured persons will be reported by employers to the Department of National Revenue, Taxation; and
(f) generally, providing for any other matters necessary for carrying out the purposes and provisions of subsections (4) and (5)."
64....
(4) If the payment of any allowances, monies or other benefits under any plan, other than one established under a provincial law, that covers insured persons employed by an employer would have the effect of reducing the benefits that are payable to such insured persons under this Act in respect of unemployment caused by illness or pregnancy the amount of the employer's premium payable under this Act by that employer in respect of insured persons who are covered under such plan shall be reduced as prescribed if insured persons employed by the employer will benefit from the reduction of the employer's premium in an amount at least equal to five- twelfths of the reduction but subject to paragraph (a) of section 65.
(5) Where under a provincial law any allowances, monies or other benefits are payable to an insured person in respect of sickness or pregnancy that would have the effect of reducing or eliminating the benefits that are payable under this Act to such insured person in respect of unemployment caused by that illness or pregnancy, the premium payable under this Act in respect of that insured person shall be reduced or eliminated as prescribed but subject to paragraph (a) of section 65.
With respect, I am unable to accept this submis sion by counsel for the Commission. In my view, those sections did not empower the Commission to make regulations concerning the manner and time within which applications for premium reduction may be made. Clearly, subsection 64(6), which came into effect on January 4, 1976, gave the Commission that power but since it did not have the power when Regulation 65 was enacted, the Regulation is, in my view, invalid.
The applicant's second attack on the validity of Regulation 65 is expressed in the alternative to the first attack dealt with supra and is to the effect that, assuming jurisdiction in the Commission to make regulations concerning applications for unemployment premium reductions, Regulation 65(1)(b), since it requires applications "at such time as the Commission may direct before the first day of each subsequent consecutive year for which a reduction is applied for" is ultra vires because the Commission has purported to give itself random power to administer as it sees fit without any reference point in standards fixed by regula tion. In support of this submission, the applicant relied on the decision of the Supreme Court of Canada in the case of Brant Dairy Company Limited et al. v. The Milk Commission of Ontario et al.' In that case, the portion of the Regulation
3 [1973] S.C.R. 131.
found to be ultra vires simply repeated the for mula of the statute containing the delegation, specified no standards and left everything to the Board to whom the regulation-making power was delegated, in its discretion. In the case at bar, there is the slight difference that Regulation 65(1)(b) leaves everything to the Commission's own discretion excepting the requirement that, in any event, the application must be made in the year for which the reduction is being applied. Notwithstanding this factual distinction, it is my opinion that the rationale of the Brant Dairy case (supra) applies to the situation in this case. I accordingly apply the views of Laskin J. (as he then was) in that decision and specifically that portion of his reasons reading as follows, at pages 146 and 147:
A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was con ferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one. It amounts to a redelegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from the judgment of this Court in Attorney General of Canada v. Brent ([1956] S.C.R. 318).
In the Brent case, what was in issue was the exercise of power delegated to the Governor in Council by the Immigra tion Act to make regulations respecting enumerated matters. What the Governor in Council did was to embody the very powers in a regulation which confided their application to a special inquiry officer. This was held to be an invalid subdele- gation; it converted the required reflection in a regulation of the opinion of the Governor in Council into an unregulated exercise from time to time of the opinion of a special inquiry officer.
The principle is the same here. The Board was required to legislate by regulation. Instead, it has purported to give itself random power to administer as it sees fit without any reference point in standards fixed by regulation.
For these reasons I have concluded that even assuming jurisdiction to enact Regulation 65(1)(b), the Regulation is ultra vires.
The respondent Commission submits, however, that section 71 of the Employment and Immigra tion Reorganization Act, S.C. 1976 - 77, c. 54, which came into force on August 15, 1977, gave statutory force to Regulation 65(1)(b) and con-
firmed that the said Regulation was validly made under the Act. Section 71 reads as follows:
71. All orders, rules, regulations, by-laws, decisions, direc tions, contracts, leases, licences, authorizations, consents, decla rations, designations, nominations, permits, recognitions or other documents made, given or issued pursuant to any Act of Parliament by or in relation to the former Commission, former Department or former Minister, as the case may be, that are in force when this Act comes into force, continue in force thereaf ter as though made, given or issued pursuant to this Act until they are repealed, replaced, rescinded or altered by or pursuant to this Act or any other Act of Parliament.
Thus, the submission continues, since Regulation 65(1)(b) has been validated by said section 71, the Commission rule herein relied on is also validated since its validity depends on the validity of Regula tion 65(1)(b). In support of this submission, the respondent's counsel relies upon the case of Re Fletcher, Ex parte Fletcher v. Official Receiver'.
In that case, the rule being impeached was Rule 219 of the Bankruptcy Rules, 1952, passed pursu ant to the rule-making powers conferred by section 132 of the Bankruptcy Act, 1914, 4 & 5 Geo. 5, c. 59 (U.K.). It was generally accepted by all three Judges of the Court of Appeal that Rule 219 would be invalid because its operation involved an extension of the discretionary jurisdiction of the Court not authorized by the relevant provision of the statute. However, the Court held, unanimous ly, that the validity of the rule was rescued by the provisions of subsection 168(3) of the Bankruptcy Act, 1914, which provided:
168....
(3) Until revoked or altered under the powers of this Act, ... any general rules and orders made under the Bankruptcy Acts, 1883 to 1913, and the Bankruptcy (Discharge and Closure) Act, 1887, which are in force at the commencement of this Act, shall continue in force, and shall have the effect as if made under this Act.
In referring to said subsection 168(3), Romer L.J. said at page 603:
It cannot, in my judgment, be supposed that Parliament, when enacting that subsection, were contemplating that some of the rules which were then current were invalid or were even of doubtful validity; for if any suspicion had been entertained on the subject, the legislature would presumably have revoked such of the doubtful rules as it disapproved of and expressly validated the others, rather than have left it to the courts on some future occasion to decide which of the rules were ultra vires and which were not. In my opinion, the reference in the sub-section to the previously made rules and orders "which are
4 [1955] 2 All E.R. 592 (C.A.).
in force at the commencement of this Act" embraced the rules and orders which were de facto in force, whether validly made or not; and a fortiori the reference would include a rule such as r.192 which had for years past been treated as valid by the courts.
The other Justices expressed similar views. It seems clear from reading all three judgments that one of the most important considerations in the view of the Court was the fact that since the rule in question was the successor of other rules in substantially identical terms which had formed part of the Bankruptcy Code for about two gener ations, it was too late to challenge, successfully, the validity of the rules. The other consideration which seems implicit, (certainly in the reasons of Romer L.J. quoted supra) is that the impeached rule be one "which had for years past been treated as valid by the courts".
That factual situation is quite different from the one in the case at bar. In this case, Regulation 65 (which came into force only in 1972) is certainly not in the category of a regulation which "had for years past been treated as valid by the courts". In the argument before us, counsel did not suggest that any court had previously ruled on the validity of this Regulation. Accordingly, I do not find the Fletcher decision to be persuasive or of much assistance in determining the validity of Regulation 65.
Furthermore, even assuming without deciding that said section 71 validates Regulation 65(1)(b), I am not persuaded that such a circumstance would breathe validity into the Commission rule herein impeached. Said section 71 is contained in the "Transitional and Consequential Provisions" of the Employment and Immigration Reorganization Act, being Part IV of that Act. It is clear from the scheme of Part IV that in section 71, Parliament intended to continue in full force and effect the "orders, rules, regulations", etc., issued pursuant to the Unemployment Insurance Act, 1971. Sub section 64(6) of the Unemployment Insurance Act, 1971 came into effect on January 4, 1976. A reading of that subsection clearly reveals that, in enacting paragraph 64(6)(a), Parliament intended to delegate to the Commission the power to pre scribe the manner and time for making premium
5 See for example: Sir Raymond Evershed M.R. at p. 594 (F.&G.). Sir Raymond Evershed M.R. at p. 599 (F.).
reduction applications by regulations (emphasis added). "Regulation" is defined in paragraph 2(1)(b) of the Statutory Instruments Act, S.C. 1970-71-72, c. 38 as follows:
2. (1) In this Act,
(b) "regulation" means a statutory instrument
(i) made in the exercise of a legislative power conferred by or under an Act of Parliament, or
(ii) for the contravention of which a penalty, fine or imprisonment is prescribed by or under an Act of Parliament,
and includes a rule, order or regulation governing the prac tice or procedure in any proceedings before a judicial or quasi-judicial body established by or under an Act of Parlia ment, and any instrument described as a regulation in any other Act of Parliament;
"Statutory instrument" is defined in paragraph 2(1)(d) of that Act as follows:
2. (1) In this Act,
(d) "statutory instrument" means any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolu tion or other instrument issued, made or established
(i) in the execution of a power conferred by or under an Act of Parliament, by or under which such instrument is expressly authorized to be issued, made or established otherwise than by the conferring on any person or body of powers or functions in relation to a matter to which such instrument relates, or
(ii) by or under the authority of the Governor in Council, otherwise than in the execution of a power conferred by or under an Act of Parliament,
but does not include
(iii) any such instrument issued, made or established by a corporation incorporated by or under an Act of Parliament unless
(A) the instrument is a regulation and the corporation by which it is made is one that is ultimately accountable, through a Minister, to Parliament for the conduct of its affairs, or
(B) the instrument is one for the contravention of which a penalty,- fine or imprisonment is prescribed by or under an Act of Parliament,
(iv) any such instrument issued, made or established by a judicial or quasi-judicial body, unless the instrument is a rule, order or regulation governing the practice or proce dure in proceedings before a judicial or quasi-judicial body established by or under an Act of Parliament,
(v) any such instrument in respect of which, or in respect of the production or other disclosure of which, any privi lege exists by law or whose contents are limited to advice or information intended only for use or assistance in the making of a decision or the determination of policy, or in the ascertainment of any matter necessarily incidental thereto, or
(vi) an ordinance of the Yukon Territory or the Northwest Territories or any instrument issued, made or established thereunder.
The definition of "regulation" supra when read with the definition of "statutory instrument" supra, in my opinion, clearly encompasses a Com mission rule like the one herein impeached. Accordingly, the provisions of the Statutory Instruments Act dealing with transmission to the Clerk of the Privy Council (section 5); registration thereof by the Clerk (section 6); date of coming into force (section 9); and publication in the Canada Gazette (section 11) would apply to this rule. Thus it is clear that Parliament, by requiring that rules respecting premium reduction applica tions be made by regulation, intended that the formalities attendant upon the adoption of a regu lation be complied with. An important reason for such a requirement would be that the registration and publication of such a public document would ensure its availability to all those who may be affected by it. There is no evidence, nor was there any suggestion by counsel, that the provisions of the Statutory Instruments Act were complied with in respect of this rule. Subsection 64(6) of the Unemployment Insurance Act, 1971 was not repealed by the Employment and Immigration Reorganization Act. Thus, it continued in full force and effect and the two sections (64(6) and 71) must be read together having regard to the general objects of the statute which must be read and given effect to as a whole and must, if possi ble, be so interpreted as to be reconcilable. Since subsection 64(6) deals specifically with the matter of fixing time for a premium reduction application while section 71 is of general scope, the accepted norms of statutory interpretation require that sec tion 71 be so construed as to except from its operation any "rule", etc., which, if not so except ed, would produce a result that would render nugatory the provisions of subsection 64(6) 6 . It is inconceivable, in my view, that Parliament, by
6 See: Craies on Statute Law, 7th Edition, p. 222.
section 71, intended to give Parliamentary sanction to a Commission rule which violated another enactment by Parliament, unless the language used was unequivocal to grant approval to some thing which would otherwise be void. Adopting that approach to interpretation it is clear, in my view, that the "orders, rules, regulations", etc., encompassed by section 71 include only rules pro mulgated by the Commission by regulation since those are the only kind of rules which subsection 64(6) empowers the Commission to make. Since the Commission "rule" herein impeached was not a "rule" made by regulation, it is not a "rule" which the Commission was authorized to make, and it is not therefore an order, rule or regulation as those terms are used in section 71. Accordingly, it is my conclusion that the provisions of section 71 do not apply to the kind of "internal order" passed by the Commission in this case.
For these reasons, I would reject the submission of counsel for the respondents concerning the applicability of section 71 to the Commission rule herein impeached.
Accordingly, and for all of the above reasons, I would allow the section 28 application, set aside the decision of the Commission herein dated August 18, 1978, and refer the matter back to the Commission for reconsideration on the basis that Commission Rule 75-20, passed by the Commis sion and said to be effective May 1, 1975 and entitled "Annual Renewal Date of Application for Premium Reduction" is invalid and void.
URIE J.: I agree. KELLY D.J.: I agree.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.