By: Kenyah Coombs
Public consultations serve as a useful tool which organizations leverage in their decision making. Governments, in particular, have relied on public consultations in developing new policies, leading to more transparency and better efficiency and effectiveness. In 2018, for example, the Ontario government sought feedback from parents, and then the wider public, on education topics such as STEM, standardized testing, and financial literacy. Recently, the Ontario government has consulted Ontarians on matters such as how the government can work better, how the government can better respond to businesses impacted by COVID-19, and how the government should plan its 2022 budget.
Although the Ontario government does conduct public consultations, it is generally not required to do so. The only exceptions are regarding the duty to consult Aboriginal people for matters which will have an impact on the Aboriginal community and Ontario’s Environmental Bill of Rights which recognizes that the government has primary responsibility for protecting, conserving, and restoring the natural environment for present and future generations, but that Ontarians should have means to ensure that government measures are effective, timely, open, and fair. Specifically, section 7 requires the ministry to allow public comment at least 30 days after a ministry statement of environmental values has been drafted. The courts, however, have not given guidance regarding how these consultations should take place. But, the Ontario government is responsible for more than environmental issues, and it begs the question of whether there should be a standard public consultation requirement regarding all government decisions, particularly when the impacts of the decision may be adversely felt by a particular group such as the case regarding the Ontario government’s response to COVID-19 which have negatively impacted business owners, health and educational professionals, and students.
In the UK, a duty to consult can arise in certain instances. This could be a result of a statutory requirement, the public body has made a commitment to consider views from interested parties, or because fairness requires that it should seek these views. In addition, a public body can simply choose to consult even if not duty to do so exists. Where a public body does carry out a consultation, regardless of whether it is a requirement to do so or a choice, the law states that it must consult properly — known as the “Sedley criteria” or “Gunning principles.” They are:
the consultation must be undertaken when proposals are still at a formative stage;
sufficient reasons for the proposal must be given to allow intelligent consideration and response;
adequate time is given for consideration and response; and
the product of the consultation is conscientiously taken into account in the decision-making process. (R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168)
While case law evolved to recognize the need for fairness in the context of public consultations, the UK government also chose to canonize these principles in its Code of Practice on Consultation which includes a a 7-part criteria for public consultation. These guidelines were created to inform the government when and how to conduct public consultations improves the overall transparency and satisfaction in government decisions.
The criteria includes guidelines on:
When to consult;
The duration of the consultation;
Clarity regarding the scope and impact of the consultation;
Accessibility of consultations;
The burden of consultation;
Responsiveness of the consultation; and
Effectiveness of the consultation exercise.
The idea here is that these guidelines improve the overall transparency and satisfaction in government decisions. And it makes sense. There is less of an illusion of consultation and instead, a rigid process can be relied on/
Whether Ontario should establish guidelines for when and how to conduct public consultations — by adopting the UK’s framework or developing its own — continues to be an ongoing conversation. This has been highlighted in recent years. Specifically, as the Ontario government handles the current pandemic, government decisions and measures have not all been well received. The most recent restrictions on January 5, 2022 which required restaurants, gyms, cinemas, and other indoor venues, for example, was met with some dissatisfaction, with business owners requesting transparency and insight into what factors are considered when the government implements these measures. This is similar to the negative reaction received from the community to 1996 reform proposals. As a result, the Minister of Education held another round of public consultations which led to significant changes in the design that reflected the needs and wants of the education community.
It is clear that not only do public consultations create transparency in government measures, but also fosters policies and decisions that better reflect the wants and needs of the appropriate groups in society. Adopting public consultations in a more formalized manner will allow the Ontario government to leverage the expertise and experiences of communities in a meaningful way. Whether Ontario should adopt the UK-based public consultation framework is unclear, but what is clear is the need to develop a clear process.
Kenyah Coombs is an internationally trained lawyer currently completing her final exams from the National Committee on Accreditation from the Federation of Law Societies of Canada. Kenyah has been a law student with Battick Legal since 2020.