This article is part of a series extensively covering the 2022 Ontario general election. It provides voters and business leaders a 360 degree view of all the rules and regulations affecting the campaign and voting, as well as insights into news and other developments this election season. It is intended as general guidance only.
To view the rest of our coverage, please visit Ontario Election 2022.
With the 2022 Ontario provincial election expected to take place on June 2nd, changes to the daily operation of the provincial government will occur by virtue of a well-established constitutional principle, known as the "caretaker convention".
The caretaker convention dictates that governments should act with restraint from the day that the election is called (i.e., the issuing of the writs) to the day that a new government is sworn in, or when an election result returning the incumbent government is clear. While the daily operations of government must carry on, certain principles guide Ministers and public servants when determining the type and scope of government business that should continue during this period of time.
This election law primer is intended to convey some important considerations with regards to the operation of the provincial government during an election period through to the conclusion of the caretaker period. It is intended as general guidance only. If you have any specific questions, please contact our Public Sector experts, Awanish Sinha, Hartley Lefton, Amanda D. Iarusso, or Jacob Klugsberg. We would be pleased to assist you.
What is the caretaker convention?
When Premier Doug Ford asks The Honourable Elizabeth Dowdeswell, Lieutenant Governor of Ontario, to dissolve the 42nd Parliament of Ontario and the Chief Electoral Officer issues the writs of election for the 43rd general election (i.e., calling the election), Ontario will enter what is known as the "caretaker period". As noted above, the provincial caretaker government "can generally be expected to continue until the swearing-in of a returning or new government."1
The caretaker convention in Ontario holds that the public service will continue to operate in a caretaker role where only (1) routine or (2) very urgent business is conducted. All other matters on which direction is needed are to be carefully reviewed by ministries, with the direction of the Cabinet Office, to ensure they are dealt with in a manner consistent with the caretaker role.
Prior to the 2018 Ontario election, the Secretary of Cabinet at that time issued a memorandum to Deputy Ministers.2 The public service was reminded that they should not act on matters that, among other things, would require approval of Cabinet or the Treasury Board, unless such acts are necessary. Similarly, new regulatory initiatives should not be commenced and stakeholders should not be proactively engaged. Communications from ministries should also not be partisan in nature.3
The origins of the caretaker convention can be found in the basic tenets underpinning our parliamentary democracy and our system of responsible government. The role of Members of Provincial Parliament, including the opposition parties, is to hold to account the government of the day for its fundamental policy decisions. When the Legislative Assembly is dissolved through the writs of election, Members of Provincial Parliament, including those forming the opposition parties, are no longer able to fulfill this fundamental task. By definition, in a dissolved Legislative Assembly, the government cannot command the "confidence" of the Legislature.
The caretaker convention is premised on the idea that government needs to continue to function, but anything outside of routine matters to keep the government functioning should be carefully considered.
Notable instances of the caretaker convention in action
Some of the most notable examples of the appropriate operation of the caretaker convention have occurred in the federal context.
When the 31st Parliament was dissolved, Prime Minister Joe Clark refused to commit the government to a $2 billion purchase of F/A-18 Hornet fighter aircraft. In this specific instance, the Government of Canada was in the middle of a procurement for fighter aircraft that was not completed at the time Parliament was dissolved. Prime Minister Clark refused to award the contract during the caretaker period given that it would have committed the future government to significant expenditure, over what was likely to be a lengthy period of time.4
Similarly, in 2011, after the 41st general election was called, Prime Minister Harper's Cabinet was grappling with Canada's participation in NATO's Operation Unified Protector in Libya. Minister of Foreign Affairs Lawrence Cannon was contemplating attending international meetings on this topic and, given the urgency of doing so, consulted with the Official Opposition to receive their agreement prior to attending these meetings of international importance.5 These meetings were integral to Canada's involvement in a major foreign policy initiative, and the Official Opposition agreed that it was appropriate for the Minister to attend.
The bottom line
Lobbyists, businesses, organizations, and individuals alike should be aware that when the Ontario Legislative Assembly dissolves, novel legislative and regulatory initiatives are not likely to be introduced. Bills before the Legislature will cease to exist, pending potential revival by a newly-formed government, whether a return of the incumbent government or the election of a new one. As partisan politics take centre stage for the foreseeable future in Ontario, stakeholders seeking legislative or regulatory changes will have to refocus their efforts to monitoring the ebb and flow of the election, and to determining how their initiatives fit with the programmes and policies of the various political parties which are likely to drive Ontario's 43rd Legislative Assembly.
This article is part of our 2022 Ontario provincial election series. You can access related content here.
Footnotes
1 Ontario, Secretary of the Cabinet, Public Service Responsibility and Procedures Leading Up to and During the Election Period: Memo to Deputy Ministers, (Memo), (Ontario: Secretary of the Cabinet, 2018) [Public Service Responsibility Memo].
2 Public Service Responsibility Memo, ibid.
3 Public Service Responsibility Memo, ibid.
4 J. Wilson, "Constitutional Conventions and Election Campaigns: The Status of the Caretaker Convention in Canada," Canadian Parliamentary Review (Winter 1995-1996).
5 J. Bowden and N. MacDonald, "The Caretaker Convention: What Happens to the Federal Government in An Election", The Hill Times (April 4, 2011); J. Bowden, "The Caretaker Convention in 2019", Parliamentum (September 19, 2019).
To view the original article click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
