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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 11 - Evidence - September 25, 2014
OTTAWA, Thursday, September 25, 2014
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:32 a.m. for the election of the Joint Chair (Senate); and for the review of statutory instruments.
Ms. Chris Charlton (Joint Chair) in the chair.
The Joint Chair (Ms. Charlton): Good morning everyone, and welcome back. We need to start today's proceedings by electing a joint chair from the Senate side, so I'd like to pass the microphone over to the clerk of the committee from the Senate.
Marcy Zlotnick, Joint Clerk of the Committee: Good morning, honourable members of the committee. We have a quorum, and I want to welcome everyone.
I have been advised of the resignation of Senator Runciman as joint chair. While I'm happy to report that he will remain on the committee, there is now a vacancy in the Senate chair.
As Joint Clerk of the Committee, I have a duty to preside over the election of the joint chair.
I am ready to receive a motion for the election of the joint chair from the Senate. Senator Runciman?
Senator Runciman: I nominate Senator Batters.
The Joint Clerk (Ms. Zlotnick): Thank you, Senator Runciman. Are there any other nominations? Seeing none, I will put the question.
It is moved by the Honourable Senator Runciman that the Honourable Senator Batters do assume the role of joint chair of this committee. Is it your pleasure, honourable members, to adopt the motion?
Hon. Members: Agreed.
The Joint Clerk (Ms. Zlotnick): I declare the motion carried.
I invite the Honourable Senator Batters to take the chair.
Senator Denise Batters (Joint Chair) in the chair.
The Joint Chair (Ms. Charlton): Welcome aboard, Senator Batters. Did you want to say a few words?
The Joint Chair (Senator Batters): I have nowhere near the experience of Senator Runciman. I'm very pleased that he's remaining on this committee and I look forward to working with all of you. Please know that there will be a bit of a learning curve. Today, I think Ms. Charlton has agreed to take the bulk of the meeting as joint chair, and I may return the favour when she is away for the next meeting. I'll listen closely and learn today. Thank you.
The Joint Chair (Ms. Charlton): I believe the proposed schedule of committee meetings has been circulated. Are there any problems with the schedule as presented?
In that case, let's proceed on that basis. As always, we use today as the starting date and then meet every two weeks on Thursday mornings at 8:30 a.m.
Let's jump right into the agenda.
SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989
(For text of documents, see Appendix A, p. 11A:1.)
The Joint Chair (Ms. Charlton): Under the heading ''Letters to and from Ministers,'' on the first item you'll note that we've always said that you can't create criminal liability without some kind of express authority, but we have no commitment from the ministry to act on correcting this. Counsel?
Peter Bernhardt, General Counsel to the Committee: That's correct, Madam Chair.
To go back to the beginning, in 2007 the committee tabled a disallowance report on this issue in connection with subsection 4(2) of the Ontario Fishery Regulations. In that case, the House of Commons did not adopt the committee's report but instead referred it back for further study. The reason advanced by those opposed to adoption at the time was that proposed new fisheries legislation was before the House of Commons that would have resolved the committee's concern by including provisions in the act creating the offence of contravening the terms and conditions of a licence. I should note in passing that the report was adopted in the Senate.
An earlier disallowance report was also referred back to the committee because the minister, after the report was tabled, introduced legislation to resolve the issue.
Unfortunately, neither of these bills passed, and in fact there have been several other attempts over the years in addition to those two pieces of legislation to resolve the committee's concern by amending the Fisheries Act.
In 2012, the minister indicated that the committee's concern would be taken into consideration in developing options for modernizing fisheries management.
More recently, amendments to the Fisheries Act were made by the Jobs, Growth and Long-term Prosperity Act. These amendments led some members to wonder whether those amendments, either intentionally or otherwise, could be seen to address the issue. In her letter of February 26, 2014, the minister confirmed this was neither the case nor the intent. The minister also indicated that she had instructed her officials to consider preparing a clarifying amendment in this connection that could be included in any future amendments to the act.
This being the case, when the committee last considered this file, it was decided to ask the minister whether she anticipated that the Fisheries Act would be amended any time in the near future to resolve the committee's objection. This morning the committee has before it the June 26 reply from the minister in which the minister advises that while modernizing fisheries management continues to be a priority, she is not in a position to indicate whether or when the amendments that would address the committee's concern might be forthcoming. However, she does reiterate that the committee's concern will be taken into consideration. That's where things stand this morning.
The Joint Chair (Ms. Charlton): Are there any comments?
Senator Hervieux-Payette: I would like to ask our counsel what he recommends we do under the circumstances. All this should have been done already, and now we are starting the process over. Should we return to the House of Commons to do what should have been done had no legislation been passed? We do not even have a legislation date. What options are available to us, other than saying that we will continue with a policy I would describe as very rigorous, even abhorrent, for the individuals concerned? What do you recommend we do?
Mr. Bernhardt: I suppose the ball is back in the committee's court. It has twice recommended disallowance. I suppose in theory a third disallowance report is always an option. Given the fate of the previous two, I'm not entirely sure that would necessarily be a wise course of action, but that's not for me to say.
The committee could continue to simply monitor the situation and to ask the minister from time to time where things are at.
I suppose the third option might be, without moving disallowance, to prepare another report to the houses indicating that this issue has yet to be resolved, recognizing that a succession of governments have tabled legislation to resolve it and that unfortunately none of those have managed to obtain passage; that the committee continues to be concerned; and that the committee will continue to press the issue in hopes that amendments will be introduced in the near future.
Aside from those alternatives, I'm not sure what else would be open to the committee. The committee could always ask the minister to come in and discuss it. I suppose that is another option.
Senator Hervieux-Payette: Given that nothing has happened in terms of procedure, would this be a major precedent? I feel that the way to push the government to add the necessary amendments to the legislative calendar would be to let the House know that, either they make the amendments, or the regulations get abolished.
I do not understand the argument that it would be useless to submit a report again in the House, as this would be the only way to remedy an issue that has been around since 1989. The issue has not been resolved, either under the Liberal government or the Conservative government.
It should also be pointed out that Parliament has operated with many minority governments and that the legislative calendars have not made it possible to make amendments. Now that we have a majority government and no election is planned until next fall, I feel we have the time to do this, especially as it is not very complicated to prepare a report, which has already been drafted.
I propose that my colleagues give their opinion on the topic. If we say that we are ending the project, continuing to think about it and sweeping it under the rug, we also become responsible for and guilty of approving these invalid regulations.
The Joint Chair (Ms. Charlton): Mr. Albas?
Mr. Albas: Mr. Bernhardt, do you have any idea how many people have been charged under this provision?
Mr. Bernhardt: No, I do not.
Mr. Albas: Again, we just don't know what we don't know, but my suggestion would be that our position has been long standing and very clear. The minister has made a commitment that she will try to look into this as part of an upcoming modernization. My suggestion is that we check back in six months. We could always write a report. We can always use other escalating action.
We received a response during the summer. I think that we should give them a little bit of time and then we go from there. I know that some people may oppose that. However, we could run around in circles on this issue constantly. This has plagued both Liberal and Conservative governments, and so I think it's just a matter of the minister being able to make it a priority.
The Joint Chair (Ms. Charlton): Ms. Ayala?
Ms. Ayala: I completely agree with Senator Hervieux-Payette that legislation needs to be passed. We know that we have a majority government, which could make the decision. Otherwise, it will be up to us to request a change. However, I do not think the change will take place if we ask for it. We have a majority government, and action needs to be taken, since people who are not actually breaking the law are being penalized.
Senator Hervieux-Payette: I would like to come back to Mr. Albas' suggestion. Instead of setting a six-month time frame, I propose that we make the deadline line up with our return to Parliament after the holidays. Although that will not be a full six months, it will give the department all of fall and January to think about this issue, since we will let it know that we will request an update.
Would my colleague agree with us asking the department to clarify the situation at the first committee meeting in 2015? I have no calendar for 2015, so I am not sure of the date, but it would be the first meeting following the Christmas break, so that we can re-evaluate this file.
The Joint Chair (Ms. Charlton): Mr. Albas, do you agree with that?
Mr. Albas: I agree with the overall approach. Most of us are away, and I would not be surprised if, in the non-partisan bureaucracy, most people are away during Christmas as well. By bringing it back in January, we are only giving them about two months to be able to look at it. I would suggest six months because that gets through all of the vacation times. To me, it seems to be a practical time. However, if someone can point out a better time, I would be happy to support it. I just don't think what the senator is proposing, although I appreciate her patience, is enough time.
The Joint Chair (Ms. Charlton): Does anyone else have any views on the timeline? I think we've now agreed that we're going to ask for follow-up. There are different interpretations of when that follow-up should happen.
Mr. Bélanger: Can we say six months or earlier?
The Joint Chair (Ms. Charlton): No other interventions? Why don't we do just that? Why don't we say that we would like a response as soon as possible but no later than six months from now?
Mr. Albas: My suggestion was to monitor the file and then to follow up with this in six months. If something comes up, then counsel can bring it to our attention immediately, but I think we write a letter in six months. Writing a letter previous to that is just going to get us a very similar letter to what we just received. That's my suggestion.
Mr. Bélanger: I think it would be useful to indicate that we would like a response in that time frame, as opposed to just monitoring.
The Joint Chair (Ms. Charlton): All right. I'm seeing some heads nod, some shake. I guess I have to test the floor.
Senator Moore: It's only reasonable that the minister or her officials should know that we are looking for something within six months. They can't be sitting there in their offices reading our minds. If we don't get back to them with something, who knows what their approach or what their attitude will be. We have to write something back to them.
Mr. Albas: The minister and previous ministers have agreed with the committee, and responses have been through tabling of various legislation. We're dealing with a minister here. If we say within six months, what if we just get the same-old, same-old? I would much rather check back in and say, ''Further to our previous letter, we would like to know what you plan on doing and if you could please share timelines.'' To me that's better than trying to give someone an arbitrary timeline that they may or may not meet. I would much rather have a substantial response. But, again, this isn't just the Dan committee. We will go with what the committee thinks.
The Joint Chair (Ms. Charlton): I've just spoken to counsel. Actually, why don't you just put on the record what you just said to me?
Mr. Bernhardt: As a practical matter, I'm seeking instruction from the committee. If the decision is to write in six months, then the reply will come sometime after that and come back to the committee. If the decision is to write now, I presume the committee doesn't really want a reply right now. The committee would want a reply in six months. It would be a question of structuring the request to indicate that while the committee was writing as a result of this morning's meeting, what the committee would like is to have something six months from now to tell the committee where things are at that point. I don't know if I'm being clear now.
In a sense, it comes to the same thing. If that's the committee's wish, we can certainly draft something for the chairs to sign. My concern is that if the committee writes now and the minister replies quickly, then that reply comes back in six months, if that's what the committee wants, but by the time the committee sees the reply, it's already stale.
Perhaps it could somehow be communicated to the minister that what the committee would like is for the minister to give the committee an update six months down the road.
The Joint Chair (Ms. Charlton): I think that squares the circle nicely. Thank you very much. I see a consensus on that.
Hon. Members: Agreed.
SOR/2013-73 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
(For text of documents, see Appendix B, p. 11B:1.)
The Joint Chair (Ms. Charlton): Item No. 2 is under ''New Instruments'' and concerns amendments to the Immigration and Refugee Protection Regulations. In particular, they relate to regulations allowing biometric and related personal information to be provided to the RCMP. Counsel?
Mr. Bernhardt: That's correct. This instrument remakes section 13.11 of the regulations. Under the act, proposed regulations had to be tabled in both houses before they could be made. What was actually tabled, it turned out in this case, was only the regulatory impact analysis statement. The actual text of the proposed regulation got left out. Of course, that means the requirement in the act wasn't complied with and making the regulations was unlawful. So now the proposed regulations were properly tabled and the regulation was remade. That at least puts it on a proper footing.
The May 2 letter from the department advises, with regard to whether this section was applied pending its remaking, that fingerprints collected under the act were used and disclosed by the RCMP for law enforcement purposes, and the making of section 13.11 provides a clear regulatory authority for secondary use by the RCMP of biometric information provided under the act.
This in turn, however, gives rise to a number of questions. For example, what does a reference to law enforcement purposes mean beyond those purposes set out in section 13.11? Are they talking about other purposes or is that simply a shorthand reference to those purposes mentioned in the regulations?
There is mention of this administrative arrangement between Citizenship and Immigration and the RCMP. What's the authority for this arrangement? Was there such an arrangement in place before section 13.11 was made and, if so, was there any need for section 13.11 in the first place?
Does the reference to there now being clear regulatory authority imply that there was some doubt as to the authority before, or does section 13.11 simply put into law one aspect of the arrangement?
In addition, there is another issue, namely that section 13.11 refers to information provided to the RCMP under the act. There seem to be no provisions of the act or the regulations, however, pursuant to which information would actually be provided to the RCMP. This isn't to say that the information cannot be provided to the RCMP, but merely that it doesn't seem to be provided under the act. If there's nothing in the act that addresses the provision of the information or in the regulations, there must be authority elsewhere.
If this is the case, then even if only as a matter of drafting, it's incorrect to say that the information is provided under the act. Simply because it's provided for immigration purposes does not necessarily mean it's under the act and people should not be sent scurrying through the act to find provisions that don't exist.
I would suggest that all of these questions and issues should be followed up on and further explanation sought. At this point, I think it's a case of information gathering so we can come back to the committee with a fuller description and analysis of exactly what the regime is. There seem to be a lot of questions that we can't answer at this point, which isn't to say there aren't answers to them, simply that we don't have the information.
Finally, I note quickly that there was discussion about the appropriate enabling authorities that should have been recited in making this instrument, and that point has been satisfactorily addressed.
The Joint Chair (Ms. Charlton): Are there any comments?
Senator Moore: Counsel, you suggest we do a letter back to Ms. Welbourne setting out your concerns?
Mr. Bernhardt: That's correct, just asking for more information and explanation as to how all of this is functioning.
Senator Moore: Thank you.
Mr. Albas: Counsel certainly has raised a lot of good questions. I think probably everything that has happened is completely lawful. However, what exactly they mean by law enforcement purposes, what arrangements they are acting under and under what authorities they are acting would be helpful for the committee to understand.
The Joint Chair (Ms. Charlton): All right. We will send a letter —
Senator Hervieux-Payette: Does the problem stem from the regulations or from the act? I feel that, given the authorization to use the regulations outside the jurisdictions recognized in the act, these regulations are being used for other purposes. I would like this file to be clarified. We would need at least one piece of legislation that would go further than the use of legislation for immigration issues. Are the regulations or their application invalid? We have no specific legislation that makes it possible to use the data for purposes other than those for which the legislation was initially adopted.
Mr. Bernhardt: The short answer, senator, is at this point we're not really sure. The point of asking the questions and getting that information is so we have a clear picture of the frame in which all of this exists.
The Joint Chair (Ms. Charlton): We're going to send a letter asking for clarification.
Hon. Members: Agreed.
SOR/2013-200 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986
(For text of documents, see Appendix C, p. 11C:1.)
The Joint Chair (Ms. Charlton): Item 3 on our agenda deals with amendments to the Canadian Egg Marketing Agency Quota Regulations. This is not the first time this kind of issue has been before us. The regulations were registered on November 8 but not gazetted until December 8. As you know, that needs to happen within 23 days and in this instance did not.
Evelyne Borkowski-Parent, Counsel to the Committee: The Clerk of the Privy Council says that Remembrance Day was the reason he missed the deadline for publishing the regulations in the November 20, 2013 edition of the Canada Gazette. However, he assures us that he has changed the existing procedures in order to meet the statutory deadlines imposed by the Statutory Instruments Act going forward. Therefore, we can consider this matter closed.
The Joint Chair (Ms. Charlton): Is there agreement that the file be closed?
Mr. Albas: On that point, because we have seen a few different variations on this, perhaps we can write back and make a suggestion that maybe they should look at altering their protocol so that these don't happen again. For example, rather than having the seven-day requirement, perhaps they could just say it comes into force once it has been published. Again, I think part of the value of us catching these kinds of things is we can give useful feedback to the system.
Mr. Bernhardt: Bear in mind that that requirement is in the Statutory Instruments Act, so it would require a statutory amendment, which isn't to say that it's not a good suggestion.
The Joint Chair (Ms. Charlton): Thank you.
SOR/2011-280 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1614 — FOOD ADDITIVES)
(For text of documents, see Appendix D, p. 11D:1.)
The Joint Chair (Ms. Charlton): Item 4 falls under the heading ''Reply Unsatisfactory.'' With respect to this amendment, we're talking about French and English discrepancies. There has been a commitment that some of the necessary amendments we've raised will be made, but on others there is no agreement to that at all. And even for the ones where there is agreement, the time frame is unspecified.
Mr. Bernhardt: That's entirely correct. As you say, Madam Chair, in some cases the department has agreed to make amendments at some point. In other cases, the department has attempted to account for the inconsistencies. As the note in the materials illustrates, the attempt does not seem to be satisfactory.
To the extent these issues arise in connection with the French version of the tables, to section B.16.100 of the regulations, it does bear noting that because food additives are now regulated under marketing authorizations, as the committee has discussed in connection with other files, these tables will be repealed. Apparently the intent is to repeal them this fall, so they will be disappearing.
The department indicates that in light of the ongoing modernization initiatives, no amendments to existing food standards that are specific to food additives will be made until such time as fundamental changes to the regulatory framework for food are made. It's unclear to us precisely what this is meant to refer to, given that earlier in the reply they do agree to make certain amendments as part of future projects that are currently under development. I'm not entirely clear how to reconcile those two statements and perhaps some clarification in that regard should be sought, perhaps at the same time pursuing the aspects of the replies that are unsatisfactory in terms of the inconsistencies.
Ms. Ambler: I would agree with counsel that we need more clarity on the regulatory modernization that was mentioned. It does seem clear that some of our requests are being taken seriously and others are not, so perhaps we could write back and ask the department to clarify their position related to what we've asked for.
The Joint Chair (Ms. Charlton): Is there agreement that we ask for clarification?
Hon. Members: Agreed.
SOR/2013-49 — REGULATIONS AMENDING THE ONSHORE PIPELINE REGULATIONS, 1999
(For text of documents, see Appendix E, p. 11E:1.)
The Joint Chair (Ms. Charlton): Moving on, Item 5: The committee had raised 13 points. The NEB addressed 12 of those but didn't address nine of them satisfactorily.
Mr. Bernhardt: That's correct. There are, as you indicated, amendments promised to deal with points 9, 10 and 12 in the correspondence. Information has been provided on point 1. It seems there is nothing there to pursue.
In connection with point 13, the board indicates it's continuing to work with the Department of Justice to address these matters and anticipated providing an answer on that point later this fall.
There is an undertaking to address the French-English discrepancy that's noted as part of point 6.
The other nine points, as you indicated, Madam Chair, would seem to be unsatisfactory. The analysis section in the note in the materials goes through each of those in detail. Our recommendation is that they be pursued in a further letter to the board. I'll try, given the number, to summarize those as succinctly as possible.
Point 2 concerns section 6, which requires a company that designs, constructs, operates or abandons a pipeline to do so in a manner that ensures the safety and security of the public, the company's employees, the safety and security of the pipeline, and the protection of property and the environment. It's hard to see how a company could contravene this section while complying with all the other provisions of the regulations, the documents developed under the regulations and all the specified standards. That's exactly what the regulations do; namely, ensure that what's stated in section 6 takes place.
The board's reply seems only to confirm that anything a pipeline company would have to do to comply with section 6 it already has to do under some other specific provision of the regulations. So it's hard to see what the point of section 6 actually is.
Point 3 deals with section 6.1, a provision that requires a company to establish a management system. It does not say at what point in time this has to be done. The board has explained that companies were expected to have these management systems in place immediately before section 6.1 came into force.
Of course, that is not what the provision says; it doesn't say people had to have a system in place upon the coming into force of the regulations. It says that upon the coming into force of the regulations, you have to go about establishing a plan. Obviously, you're not going to do that instantaneously.
That aside, even if an existing company had a plan in place when the regulations came into force, it doesn't deal with new companies. According to the board, apparently you would have to have the plan in place immediately upon your becoming a pipeline company.
By way of contrast, you have section 23 of the regulations, which says that before putting a pipeline into service, a company must develop a program in respect of pressure tests to be conducted for pipes, components and so on. Clearly, then, you know you have to have this particular plan in place before you put the pipeline into service. That seems to make eminent sense.
If what's intended in section 6.1 is that before designing, constructing, operating or abandoning a pipeline the company has to have the management system in place, that's precisely what it should say.
There are similar issues that arise in connection with a number of other provisions.
Point 4 concerns a provision that requires a company to establish, implement and maintain a management system that is systematic. I would suggest as a matter of logic something that's not systematic is not a system. The board seems to take issue with that.
Point 5 deals with subsection 6.2(1). Under the terms of this provision, a company must appoint an officer to ensure, on its behalf, that management systems and programs are established, implemented and maintained in accordance with the regulations. We suggested it went without saying that if the officer of a company is appointed to do something in the scope of their duties, they're doing it on behalf of the company. I think the explanation from the board illustrates that, and that the reference to ''on its behalf'' has no actual effect whatsoever; it's simply unnecessary verbiage.
Point 6 deals with paragraph 6.3(1)(a). The company must establish policies and goals for meeting its obligations, including ''a policy for the internal reporting of hazards, potential hazards, incidents and near-misses that includes the conditions under which a person who makes a report will be granted immunity from disciplinary action.'' The question we have is why should a person who reports these things ever be subject to disciplinary action, and why should the person's rights be a matter of company policy?
By way of contrast, we referred the board to the Canada Labour Code, which directly sets out the rights and immunities of employees and the limits on that immunity. The board appears to have misunderstood this, thinking a reference to the Canada Labour Code was meant to show there was an overlap between it and these regulations. What we were simply trying to do was give an illustration of a better approach.
Point 7 concerns provisions that seem inconsistent in terms of distinguishing between ''hazards'' and ''potential hazards.''
Point 8 concerns the distinction, if any, between references to the ''safety and security of a pipeline'' and to the ''security of the pipeline.'' The board's reply seems to indicate that either there's no need to refer to the ''safety of the pipeline'' in certain provisions or that other provisions should be amended to refer to ''security'' as well as ''safety.''
As I say, those are fairly technical points, but we would recommend following up on each of those in a further letter to the board.
The Joint Chair (Ms. Charlton): Comments? Agreement?
Hon. Members: Agreed.
SOR/2013-82 — SOCIAL INSURANCE NUMBER REGULATIONS
(For text of documents, see Appendix F, p. 11F:1.)
The Joint Chair (Ms. Charlton): Regarding Item No. 6 on our agenda, as you have noted, there is absolutely no recognition by the department that practice must conform to regulations, which in turn must conform to enabling legislation.
Ms. Borkowski-Parent: Thank you. Given the scope of the file, I will try to give you the most succinct summary I can.
As the joint chair was saying, the common thread that connects all the points is the fact that the department seems to think that the laws and regulations are subject to administrative policies, whereas in a society with legal rights, those standards are only valid if they comply with higher standards — legislation.
As it is indicated in the note prepared for you, the concerns raised with the department pertain to four issues. I can give you a summary of the various points related to the same problem. I can always elaborate on the explanations if the members of the committee wish.
Let us start with the good news and look at the explanation provided under point 8 regarding the retroactive application of the expiration of a social insurance card issued without an expiry date. The department assures us that all cards issued to temporary residents on or after April 3, 2004 contained an expiry date, and that a person would not be retroactively penalized because this provision was adopted. The explanation provided by the department may be taken as satisfactory.
Let us now move on to the drafting issues, covered in points 2, 4 and 11.
In point 2, subsection 3(1) of the regulations stipulates that an application to register can be signed and submitted by a person who is legally authorized to act on a minor's behalf. A distinction is then made in this subsection between minors under 12 years of age and those 12 years of age or older, the difference being that, in the first case, a parent or another person who is legally authorized to act on the minor's behalf is authorized to submit an application. In the case of minors 12 years of age or older, the only person legally authorized to act on their behalf is the person who is legally authorized to do so. The issue stems from the fact that the concept of a parent does not necessarily include that of an authorized person and vice versa. In fact, the two may be mutually exclusive.
When asked what the distinction between the two sections brought, the department focused on the significances of the age of 12, without expanding on the legal consequences arising from the use of different phrasing. Therefore, this point is worth clarifying.
Regarding a portion of point 4, the French and English versions have a different scope. In its current form, the English version refers to a person who is unwilling to apply for registration, whereas the French version rather refers to a person who is opposed to having a social insurance number as such.
Conceptually, we are talking about two different things, but the department does not seem to recognize the discrepancy. Finally, point 11 concerns the lack of terminological consistency in sections 10 and 17 of the regulations, as well as in the Employment Insurance Regulations. The department's response on what it plans to do regarding this issue is evasive.
Committee members will be familiar with the issues relating to the exercise of discretion and the lack of clarity, covered under points 1, 3, 4, 6 and 7. The provisions in question use vague or subjective language that makes the defendant unduly dependent on administrative discretion.
For example, section 2 of the regulations states that the applicant must provide sufficient documentation to establish their identity, and subsection 3(4) stipulates that the commission may register an individual despite the absence of a signature. So what is considered to be sufficient documentation and under what conditions can the commission exercise its discretionary power? The answer to those questions seems to be buried in the department's administrative policies, rather than established in the regulations.
Let us now move on to the lack of an enabling authority and the inconsistencies raised in points 5, 9 and 11. Regarding points 5 and 9, the department was unable to indicate what provisions of the act enable it to use the regulatory provisions in question and is continuing to conduct research on that matter. Point 11 addresses the illogical consequences of the amendments made to the Employment Insurance Regulations.
Subsection 89(1) of those regulations imposes an obligation on persons who have not been registered to apply to be registered within three days after their insurable employment begins. Based on the premise that some time may elapse between when a person applies and when they receive their social insurance number, the issue stems from the fact that the individual cannot verify whether they have been registered with the commission.
The obligation stipulated under subsection 89(1) is based entirely on information that is unavailable to the individual covered by this provision, the result being that a person who intends to comply with the legislation could have unintentionally violated it.
It was suggested to the department that it would be more logical to focus on individuals who have not already submitted an application to register. A similar issue with consistency was identified in subsection 89(5). Under subsection 89(1), the individual must submit their application within three days after their insurable employment begins, and under subsection 89(4), they must inform their employer of the social insurance number within three days after the day on which they receive it.
How can those obligations be reconciled with the employer's obligation to inform the commission if they are unable to verify the individual's social insurance number within six days of them assuming their duties? Once again, an individual may very well be complying with their obligation under subsection 89(1) and be reported to the commission by their new employer if their social insurance number has not been delivered within three days of them starting their employment. The fact that the department has procedures in place to deal with these types of situations is not necessarily to say that the enforcement of the regulations could not have negative consequences.
That brings us to the last issue, which is raised in point 10. The problem is basically that section 13 of the regulations calls for the submission of an application, which is proscribed by the Department of Employment and Social Development Act. In response, the department indicates that the policy considerations underlying this provision are acceptable grounds for the exception. Nonetheless, by following the procedure set out in the regulations, the defendant may potentially be violating the law and become liable to a $1,000 fine or up to a year of imprisonment. The department was unable to provide legal justification for this provision.
Senator Hervieux-Payette: I would like to ask our counsel whether they often hear that more social insurance cards are issued than there are people living in Canada. Such disarray in the regulations can only lead to an overflow in issued cards. This is a matter of policy, and not a matter of poorly drafted legislation.
Officials have to implement a policy or a piece of legislation. It would appear that many errors are made. Could we ask the department to explain how it manages to enforce a piece of legislation that is inapplicable, in some respects, and leads to all sorts of inconsistencies?
Seeing this leads me to believe that the officials are responsible. I would never blame the minister for such regulations. No minister has the time to review every paragraph of these regulations. The officials should be handling that. This has negative repercussions, as the social insurance card gives access to services and rights, and when it is issued incorrectly, the whole system gets bogged down.
I do not know what your recommendation is, but my first suggestion would be to ask the person who drafted the regulations to come explain to us the provisions under review. It is not our committee's responsibility to draft the regulations.
What will we say to them? This is not right? They have to understand that the regulations are inadequate and may lead to all sorts of abuse. Given the seriousness of this case and the need to remedy the situation in a timely manner, what would be the best way to make them understand that these regulations are causing all kinds of problems that must be corrected in the near future?
They do not seem to understand that the regulations contain some serious deficiencies. Either the individual is totally unfamiliar with regulatory drafting, or we are dealing with people who are not sufficiently qualified. After all, this is a specific area of the law.
What do you recommend to correct this very serious situation?
Ms. Borkowski-Parent: To quickly answer your question, I think the main message of the department's response is that, instead of accepting the letter of the law, it turned to administrative policies that can go against the letter of the law. At this stage, we have exchanged letters with the department only once. We need to write to the department to let it know that the committee thinks the responses provided were unsatisfactory, and to inform the department that the committee needs to see a legal explanation for those problems and not only administrative documents. That may be the next step.
Senator Hervieux-Payette: I do not know whether my colleagues agree. I feel that you could make this a special mission. I do not think that, given the scope of the corrections to be made, proceeding in writing alone is sufficient. You need to sit down with them and explain why this does not work and why these regulations do not comply with the law.
You could move this forward more easily if you met with them in person instead of sending them a letter. They think that they are still doing things properly. You should go meet with them in order to explain why that is not the case and what the consequences are.
Do my colleagues agree?
Mr. Albas: That may be a very good suggestion, senator, but I would like to take a step back for a moment because I went through this file with quite a bit of interest. In going through the response, it seems to me that, like many of the groups that we deal with, ultimately we're not their consumers. The people that come for their services seem to be their customers, so they've oriented themselves more towards being responsive: How do we get the job done? How do we serve the public? By creating a focus on the operational manuals and the administrative functioning, they have not kept up with their obligations under the enabling statute and delegated legislation.
I actually think, senator, that you've hit a very good suggestion, which is that it might be beneficial to have counsel meet with them and suggest that perhaps someone from their legal department join so that there can be a good exchange of information outlining the committee's concerns. We always have to remember that public servants want to serve the public, but the committee is part of the public. As parliamentarians, we have concerns and a right to express those concerns.
We should also take back, though, that there has been plenty of change in this field in order to serve the public better, but as to how they've instituted some of the changes, we can offer some suggestions positively.
So I would actually endorse Senator Hervieux-Payette's suggestion of meeting with them, but I make the suggestion that it's not just at an administrative level, an operational level. Someone who has a legal perspective could be there to fully benefit from the exchange.
Mr. Bélanger: I have three things to say. First, I would like to make sure that the priorities are established properly. The act is first on the list, followed by the regulations, and then the policies. Am I right?
Hon. Members: Yes.
Mr. Bélanger: Thank you. Second — and I mentioned this at our last meeting — for a number of years, the committee would hear from witnesses a few times a year. Over the past three years, we have not had witness appearances. I think it would be useful to hear from this group in committee. Third, to echo Mr. Albas' suggestion, if we invite them to appear, we should make sure that a representative of their legal services is present. This is my suggestion. I think it would be useful to ask them to appear in order to confirm the notion of paramountcy. The act is first on the list in terms of priority, followed by the regulations and then the policy. It is not the policy, the regulations and then the act.
It is true that they are trying to serve the public, and I have no issue with that. By hearing from them directly, we may learn something and even come up with suggestions for the government to make amendments to the act, if necessary. By hearing from them in person and having a discussion, either here or in a room in Parliament, we could develop our ability to find a comprehensive solution to the problem. So I am suggesting that we think about asking them to come testify with a representative of their legal services.
The Joint Chair (Ms. Charlton): So we have two proposals on the floor.
Senator Hervieux-Payette: I just have a comment.
I tend to agree with Mr. Bélanger, but I think the first step would be to invite officials to appear, in case of snags, and should there be a lack of agreement or harmonization among the act, the regulations and the policy.
I think we should first pay them a visit and, if we have a positive discussion in good faith that leads to corrective action, I would postpone the meeting.
Mr. Bélanger: I agree with Senator Hervieux-Payette.
The Joint Chair (Ms. Charlton): So we have agreement that we're going to have a meeting between officials from the committee and ministry officials, including both the legal department and folks who are looking after the operations. Agreed?
Hon. Members: Agreed.
SOR/94-686 — INCOME TAX REGULATIONS, AMENDMENT
(For text of document, see Appendix G, p. 11G:1.)
The Joint Chair (Ms. Charlton): Under ''Reply Unsatisfactory (?),'' Item 7 relates to amendments to the Income Tax Regulations, and there has been no indication from the department when English and French discrepancies will be resolved. Counsel?
Ms. Borkowski-Parent: The amendment to the Income Tax Regulations covered in this file was intended to update references to subsection 66.1(6) of the Income Tax Act. Unfortunately, the amendment was made only in the French version, and the English version is still inaccurate. In April 2008, the department promised to amend the English version of the regulations. Despite the numerous inquiries by the committee over the last six years to find out when the promised amendments would be made, the department is still unable to provide a time frame.
However, it should be noted that, since 2009, the regulations have been amended 11 times through legislation and 20 times through regulations.
Mr. Clarke: I think we should write to the minister and ask for some action.
The Joint Chair (Ms. Charlton): Agreed?
Hon. Members: Agreed.
SOR/99-142 — CANADA LANDS SURVEYORS REGULATIONS
(For text of document, see Appendix H, p. 11H:1.)
The Joint Chair (Ms. Charlton): Next is Item No. 8. One out of 17 points that we originally raised are still outstanding, and there is no indication of when the discrepancy between the French and English versions will be addressed.
Mr. Bernhardt: That's correct, Madam Chair. The committee is waiting for an amendment to correct a discrepancy actually between the English and French versions of section 53 of the act. Back last December, the department advised that it had asked the Department of Justice to include the amendment in the next set of proposals for a Miscellaneous Statute Law Amendment Act. In May, the department indicated that it had received no confirmation of this from the Department of Justice, and in fact the amendment is not part of the proposals tabled back on May 15 in the two houses.
Mr. Vellacott: We should write back to them, outlining the inaction on the file, and ask what they intend to do and how they will proceed in terms of alternatives that would resolve our concerns.
The Joint Chair (Ms. Charlton): Is there agreement to follow up by letter?
Hon. Members: Agreed.
SOR/2009-166 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
(For text of documents, see Appendix I, p. 11I:1.)
The Joint Chair (Ms. Charlton): Under the heading ''Part Action Promised,'' Item 9 concerns amendments to the Contraventions Regulations. Five amendments have been promised to us, although those promises have been made without a concrete timeline, and one point remains outstanding. Again, that is related to French-English discrepancies that still need to be fixed.
Mr. Bernhardt: That's correct. The department has attempted to provide an explanation on the one point it hasn't agreed with, which seems to be that it uses whatever term is used in the French version of the provision that creates the offence in the Ontario Fishery Regulations. That explains the two points that were raised in the initial letter. However, now it turns out that that leads to them being inconsistent elsewhere. If the idea is to simply track the language of the provision that creates the offence, they should at least do that consistently, and I would suggest that that be put to them, with a request for a timeline as well.
The Joint Chair (Ms. Charlton): Agreed?
Hon. Members: Agreed.
SOR/2009-128 — ORDER AMENDING THE EXPORT CONTROL LIST
(For text of documents, see Appendix J, p. 11J:1.)
The Joint Chair (Ms. Charlton): Next is Item 10 on our agenda under the heading ''Part Action Taken.'' One amendment that was inadvertently missed will be coming into force by the end of this year we're told.
Ms. Borkowski-Parent: I have nothing to add.
The Joint Chair (Ms. Charlton): Nothing to add? Will we close the file? We will monitor it until it's in force.
SOR/2010-158 — BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER
(For text of documents, see Appendix K, p. 11K:1.)
The Joint Chair (Ms. Charlton): Item 11 falls under the heading ''Reply Satisfactory (?).'' We have always maintained as a committee that the levies can only be collected if provincial agreements are in place, and we have been told that they now are. Counsel?
Mr. Bernhardt: That's correct. The committee has maintained that because what it was told by the Farm Products Council was that, as a practical matter, the agency couldn't collect levies unless there was an agreement in place and that there was only an agreement in place in certain provinces. That being the case, the committee suggested that that should be stated in the regulations because, on the face of it, people have to remit this money whether there's an agreement or not. So you're requiring people to comply with something they have no way of complying with.
In the June letter, the committee is now advised that there are agreements in place with all provinces now, and that if there ceases to be an agreement in a particular province the agency could collect levies directly, but this would require amending the order. I think that is somewhat inconsistent with the advice previously given to the committee that as a practical matter that could not be done. But in and of itself, the latest reply is satisfactory. I would simply add that had this been the explanation given to the committee back in 2011, considerable time and effort could have been saved.
Mr. Anders: Given the response, I suggest closing the file.
The Joint Chair (Ms. Charlton): Agreed?
Hon. Members: Agreed.
SOR/88-58 — AIR TRANSPORTATION REGULATIONS
SOR/96-335 — AIR TRANSPORTATION REGULATIONS, AMENDMENT
(For text of documents, see Appendix L, p. 11L:1.)
The Joint Chair (Ms. Charlton): You will be happy to note that progress has been made with respect to Item 12. There is agreement now that the amendments are necessary and there is a promise, or at least a hope, to have them addressed by the end of the fiscal year.
Mr. Bernhardt: That is correct. When the committee considered this file back in the spring, it found the last letter from the chair of the agency to be somewhat vague and asked that we meet with officials from the agency to communicate that. That was done on June 26.
There is a summary of the discussion with the Director General, Industry Regulations and Determinations Branch, in the note in the materials. There were a number of reasons given; heavy workload, limited resources, other people setting priorities, so on and so forth.
At the end of the day, it was confirmed that the agency still hopes to meet the end of fiscal year deadline, but if there are unforeseen delays, the agency will seek to proceed with the committee's amendments independently. I was also assured the agency is fully committed to amending the regulations and that it's not for a lack of will that they have yet to be made.
Senator Hervieux-Payette: Since the agency was not always establishing its own priorities, can we know who was establishing them? This makes no sense. I find it rather unusual that a president is not establishing his own priorities. We sympathize with the president and see that he is showing good will.
Mr. Bernhardt: It is not for me to comment on.
The Joint Chair (Ms. Charlton): At this point, do we monitor until the end of the year?
Mr. Bernhardt: They have assured us that that's what will happen.
The Joint Chair (Ms. Charlton): Perfect.
SOR/2009-197 — VOLATILE ORGANIC COMPOUND (VOC) CONCENTRATION LIMITS FOR AUTOMOTIVE REFINISHING PRODUCTS REGULATIONS
(For text of documents, see Appendix M, p. 11M:1.)
SOR/2009-264 — VOLATILE ORGANIC COMPOUND (VOC) CONCENTRATION LIMITS FOR ARCHITECTURAL COATINGS REGULATIONS
(For text of documents, see Appendix N, p. 11N:1.)
The Joint Chair (Ms. Charlton): With the committee's indulgence, I would like to suggest we deal with these Items 13 and 14 together. They appear under the heading ''Progress.'' Both deal with Volatile Organic Compound Concentration Limits, the first with respect to Automotive Refinishing Products Regulations, the second with respect to Architectural Coatings Regulations. In both cases, the ministry has assured us that amendments will be part of an omnibus package that is anticipated to be published sometime this year.
Are there any comments? Shall we just monitor it?
Hon. Members: Agreed.
SOR/2007-15 — EXPORT PERMITS REGULATIONS (SOFTWOOD LUMBER PRODUCTS 2006)
SOR/2007-16 — SOFTWOOD LUMBER PRODUCTS EXPORT ALLOCATIONS REGULATIONS
(For text of documents, see Appendix O, p. 11O:1.)
The Joint Chair (Ms. Charlton): Next is Item 15 under ''Action Promised (?).'' We've also been promised some action with respect to SOR/2007-15 and SOR/2007-16. We have a rather vague agreement, but nonetheless an agreement that amendments will be made. Again, do we monitor?
Hon. Members: Agreed.
SOR/2013-125 — REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE PENSION CONTINUATION REGULATIONS AND THE ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS
(For text of documents, see Appendix P, p. 11P:1.)
The Joint Chair (Ms. Charlton): Item 16 under ''Action Promised'': A number of amendments have been made, but there are additional discrepancies that need to be addressed here. Counsel?
Ms. Borkowski-Parent: I would like to add that this statutory instrument makes a total of 14 corrections that relate to issues raised in the other two files. The issues covered in this morning's file concerned the new text.
The last thing I want to add is that the RCMP commissioner's letter of April 17, 2014 does not seem to answer the question as to why sections 33 to 51 of the regulations continued to refer to the spouse, a notion that was removed from the enabling legislation in 2012. So we could follow up on this matter.
Mr. Clarke: Being in the RCMP for over 18 years, this is very dear to me. I think we should write back asking for a progress report.
The Joint Chair (Ms. Charlton): Is that agreed?
Hon. Members: Agreed.
SOR/2013-233 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS
(For text of documents, see Appendix Q, p. 11Q:1.)
The Joint Chair (Ms. Charlton): Item 17: Again, there are outstanding discrepancies between the English and French versions of the regulations. Counsel?
Ms. Borkowski-Parent: The scope of the French version is broader than that of the English version. The department recognizes the discrepancy between the two versions and promises to correct it at the earliest opportunity.
Mr. Bélanger: The department did not indicate when the earliest opportunity would be.
Ms. Borkowski-Parent: No.
The Joint Chair (Ms. Charlton): Monitor?
Hon. Members: Agreed.
SOR/2014-1 — ORDER AMENDING THE QUEBEC BEEF CATTLE PRODUCERS' LEVIES OR CHARGES (INTERPROVINCIAL AND EXPORT TRADE) ORDER
(For text of documents, see Appendix R, p. 11R:1.)
SOR/2014-114 — REGULATIONS AMENDING THE SEEDS REGULATIONS
(For text of documents, see Appendix S, p. 11S:1.)
SOR/2014-139 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix T, p. 11T:1.)
The Joint Chair (Ms. Charlton): There are three items under ''Action Taken.'' Is there anything to add on any of these files?
Mr. Bernhardt: I simply note that all these files can be closed. In total they make 10 amendments that had been requested by the committee.
SI/2013-122 — NORTHERN PIPELINE AGENCY COST RECOVERY CHARGE REMISSION ORDER, 2013
SI/2014-11 — TRANSFER OF DUTIES ORDER (UNIT RESPONSIBLE FOR FEDERAL BRIDGES IN THE REGION OF MONTREAL)
SI/2014-13 — ORDER DESIGNATING THE PRESIDENT OF THE QUEEN'S PRIVY COUNCIL FOR CANADA AS THE APPROPRIATE MINISTER FOR THE JACQUES-CARTIER AND CHAMPLAIN BRIDGES INC.
SI/2014-19 — CANADA GAZETTE PUBLICATION ORDER, 2014
SI/2014-21 — ORDER DESIGNATING THE MINISTER OF THE ENVIRONMENT AS THE MINISTER RESPONSIBLE FOR THE ADMINISTRATION AND ENFORCEMENT OF SUBSECTIONS 36(3) TO (6) OF THE FISHERIES ACT
SI/2014-30 — ARCTIC STAR ORDER
SI/2014-34 — ORDER FIXING APRIL 1, 2014 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SOR/2001-216 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS
SOR/2006-207 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (MINING TAXES)
SOR/2009-126 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CAPITAL COST ALLOWANCE — 2008 AND 2009 BUDGET MEASURES)
SOR/2011-187 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (OMNIBUS, NO. 2)
SOR/2011-195 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS — GROSS REVENUE (MISCELLANEOUS PROGRAM)
SOR/2011-295 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CORPORATE INTERNET FILING)
SOR/2013-179 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (BLOOD)
SOR/2013-180 — REGULATIONS AMENDING SCHEDULE D TO THE FOOD AND DRUGS ACT (BLOOD)
SOR/2013-203 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS
SOR/2013-230 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (EXTENSION OF LEAST DEVELOPED COUNTRY TARIFF TO SOUTH SUDAN)
SOR/2014-4 — REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS RESPECTING THE PEST CONTROL PRODUCTS ACT AND REGULATIONS
SOR/2014-10 — ICEWINE REGULATIONS
SOR/2014-49 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS
SOR/2014-50 — REGULATIONS AMENDING THE SPECIAL SERVICES AND FEES REGULATIONS
SOR/2014-56 — ORDER DECLARING AN AMNESTY PERIOD (2014)
SOR/2014-97 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES
Mr. Bernhardt: Finally, I note that there are 23 instruments listed under ''Statutory Instruments Without Comment.''
Mr. Albas: I would like to thank Senator Runciman for ably serving as chair, and I am looking forward to working with you, Madam Chair, to make things work here.
The Joint Chair (Ms. Charlton): On that note, we're adjourned.
(The committee adjourned.)