Acts Can Be Amended by Regulations
Oh legislation. How I love the odd and interesting and esoteric nature of delving into your secrets! Today’s Tip is a reminder that legislation passed by elected members can be amended by others if they are given the authority to do so.
I have an example from Alberta, but I have seen this phenomenon in British Columbia legislation as well:
The Fatal Accidents Act at section 8 says:
Damages for bereavement
8(1) In this section,
(a) “child” means a son or daughter;
(b) “parent” means a mother or father.
(2) If an action is brought under this Act, the court, without reference to any other damages that may be awarded and without evidence of damage, shall award damages for grief and loss of the guidance, care and companionship of the deceased person of
(a) subject to subsection (3), $75 000 to the spouse or adult interdependent partner of the deceased person,
(b) $75 000 to the parent or parents of the deceased person to be divided equally if the action is brought for the benefit of both parents, and
(c) $45 000 to each child of the deceased person.
(3) The court shall not award damages under subsection (2)(a) to the spouse or adult interdependent partner if the spouse or adult interdependent partner was living separate and apart from the deceased person at the time of death.
(5) A cause of action conferred on a person by subsection (2) does not, on the death of that person, survive for the benefit of the person’s estate.
RSA 2000 cF‑8 s8;2002 cA‑4.5 s36;2002 c17 s2;2010 c6 s3
The Act also says:
Regulations
10 The Lieutenant Governor in Council may by regulation
(a) change the amounts of damages that may be awarded under section 8(2),
(b) prescribe the effective date of such change, and
(c) provide that such change applies only to deceased persons who die on or after a prescribed date.
1994 c16 s6;1996 c28 s17
There IS a Fatal Accidents Regulation, Alta. Reg. 32/2013 that adjusts the amounts of berevement damages prescribed by the act.
Because the regulation changes the act, and this is thankfully abnormal, a researcher may miss these connections. The connection will be made, but the reference is not (yet) in the Table of Public Statutes. Tables of Public Statutes always have a currency date which should be reviewed, as should the regulation making power of an act that you are using for legal research.
If this confuses you, talk to a law librarian…
This is one of the most useful types of amending regulations, because it can keep numbers up to date with inflation. Getting legislation itself amended to update the numbers can be very painful, so if the dollar values can be brought into line less formally, that is a good thing.
But yes, people should check the state of regulations under any statute they are planning to use. Presumably people who regularly refer to statutes like this one would know to look at the regs, just in case.
As a general principle, regulations that amend legislation are known as Henry VIII clauses and are not considered a Good Thing, though they are legal.
This is a sloppy and problematic way of drafting legislation. It is problematic in that it purports to give the Governor in Council the power to change specific provisions passed by the entire legislature. It is sloppy in that confusion (and the conceptual problem above) can be avoided simply by having the legislation read something like “an amount [of money] set by regulation.” If legislatures are too lazy to draft legislation properly, courts should be too lazy to enforce it.