REGS Committee Meeting
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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 17 - Evidence - April 6, 2017
OTTAWA, Thursday, April 6, 2017
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments, for the election of a joint chair, and for the consideration of a draft agenda (future business).
Mr. Harold Albrecht (Joint Chair) in the chair.
The Joint Chair (Mr. Albrecht): We have a number of items that are not specifically on your agenda this morning. We're going to first look to our Senate clerk for some direction relating to an election.
Max Hollins, Joint Clerk of the Committee: Honourable senators and members, given the vacancy in one of the chairs of the committee, it is my duty, as clerk, to preside over the election of a chair. The clerk cannot entertain or receive any other motions, points of order or debate, and I am ready to receive a motion or motions for the election of the chair.
Senator Runciman: Mr. Clerk, I'm pleased to nominate a good friend and someone I know will be an outstanding chair, Senator Joe Day.
Mr. Hollins: Thank you, senator.
Are there any other motions?
Is it agreed that Senator Day do take the chair of the committee?
Hon. Members: Agreed.
Mr. Hollins: I declare the motion carried and invite Senator Day to join us at the head of the table.
Senator Joseph A. Day (Joint Chair) in the chair.
The Joint Chair (Mr. Albrecht): We have another agenda item, committee members, relating to an in camera motion. I'm going to consider a motion for the committee to move in camera to consider some committee business that needs to be dealt with in camera. Is someone prepared to move the motion?
Senator Runciman: So moved.
(The committee continued in camera.)
(The committee resumed in public.)
SI/2013-65 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS PUBLISHED AND SIX MONTHS AFTER THAT DAY AS THE DAYS ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE.
SI/2012-85 — ORDER FIXING VARIOUS DATES AS THE DATES ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE.
SI/2012-99 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS REGISTERED AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE.
SI/2013-107 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS REGISTERED AS THE DAY ON WHICH SECTION 201 OF THE ACT COMES INTO FORCE.
SI/2014-58 — ORDER FIXING THE DAY THAT IS SIX MONTHS AFTER THE DAY ON WHICH THIS ORDER IS PUBLISHED AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE COPYRIGHT ACT COME INTO FORCE.
SI/2014-103 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS PUBLISHED AND DECEMBER 31, 2014 AS THE DAYS ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE.
SI/2014-105 — ORDER FIXING THE DAY THAT IS 90 DAYS AFTER THE DAY ON WHICH THIS ORDER IS REGISTERED AS THE DAY ON WHICH THE ACT COMES INTO FORCE.
SI/2015-5 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS PUBLISHED AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE.
SI/2015-6 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS PUBLISHED AS THE DAY ON WHICH SECTIONS 139 TO 145 OF THE ACT COME INTO FORCE.
SI/2015-20 — ORDER FIXING THE 30TH DAY AFTER THE DAY ON WHICH THIS ORDER IS PUBLISHED AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE.
SI/2015-31 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS PUBLISHED AS THE DAY ON WHICH SECTIONS 264 AND 266 OF THE ACT COME INTO FORCE.
SI/2015-53 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS PUBLISHED AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE.
SI/2015-67 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS REGISTERED AS THE DAY ON WHICH PART 3 OF THE ACT COMES INTO FORCE.
SI/2015-68 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS REGISTERED AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE.
SI/2016-74 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS REGISTERED AS THE DAY ON WHICH SUBSECTION 35(2) OF THE ACT COMES INTO FORCE.
(For text of documents, see Appendix A, p. 17A:1.)
The Joint Chair (Mr. Albrecht): We'll reconvene the meeting of the Scrutiny of Regulations Committee and begin with Item No. 1 on our agenda. We'll look to our counsel for input.
Evelyne Borkowski-Parent, General Counsel to the Committee: It occurs with some frequency that an act of Parliament will indicate that certain of its provisions come into force on a date or dates to be fixed by order of the Governor-in-Council. The committee has consistently taken the view that an order does not fix a day if that day is not known at the time the order is made. This instrument and the others listed in the appendix purport to tie the date of coming into force to some future event, the date of which was not yet known when the order was made. Since that date had itself not been fixed, the committee's view is that the day of coming into force had not been fixed either, and so the delegated authority was not properly exercised.
This issue is akin to that raised by the committee in its report No. 88, Fixing the Date of Coming-into-Force Provisions, adopted in March of 2014.
On file SI/2013-65, the first file listed under Item 1, the exchange of correspondence was pursued first with the Department of Health as the regulation-making authority, and then, once it became clear that the issue was becoming widespread, with the Department of Justice as the department responsible for providing legislative drafting services.
In her most recent letter, the Minister of Justice maintains the legality of the approach used in the drafting of these orders-in-council, stating that the enabling power does not contain any limitation in the way a day can be fixed. This seems to misstate the issue. It has not been suggested that there are limitations in the way a day can be fixed, just that the approach taken must indeed fix a day.
On the question of whether this method should be resorted to in the future, the Minister of Justice indicated that since the orders in questions do not fall under the definition of regulations under the Statutory Instruments Act, they are not subject to the formal examination process by the department. Nevertheless, the minister indicated the willingness of the department to inform regulation-making authorities of the committee's position in the hope that they will use a different mechanism to bring statutory provisions into force.
It appears that the practice has been largely curtailed since 2015, albeit not completely, as there has been one such order published in the Gazette in December.
In light of that, if it is the wish of members, the files listed on the agenda could be closed, and future orders could be monitored with the view that if it becomes a systemic problem once again, the file would be brought back to committee.
The Joint Chair (Mr. Albrecht): Are there any questions or comments?
Senator Runciman: I guess what counsel is suggesting or implying is that this is a satisfactory response from the minister. I know that we indicated in our letter that we were either expecting a satisfactory response or they could anticipate an invitation from the committee. For me, it boils down to whether or not you believe this is a satisfactory response.
Ms. Borkowski-Parent: Since the Department of Justice is not the regulation-making authority, the response that they are undertaking to share the committee's position with regulation-making authorities might be as good as it's going to get. The fact of the matter is that since 2015 there has only been one such order, whereas from 2011 to 2015 there were many.
Senator Runciman: So you're suggesting we monitor the file for a year.
Ms. Borkowski-Parent: If such orders are made, we will raise the issue individually with the departments that are the regulation-making authorities, and if it becomes rampant again, bring it back as an overarching issue with the Department of Justice.
Senator Runciman: And close the files for now.
Ms. Borkowski-Parent: Yes.
Senator Runciman: So moved.
The Joint Chair (Mr. Albrecht): There's been a motion to close the file. Is there any further discussion? All agreed? Please raise your hand. Opposed? Carried.
Thank you, counsel, and thank you, Senator Runciman.
SOR/2000-328 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS
SOR/2014-141 — REGULATIONS AMENDING THE OIL AND GAS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix B, p. 17B:1.)
Ms. Borkowski-Parent: Item 2 concerns two files in which five amendments are outstanding.
With respect to SOR/2000-328, two issues remain. On one hand, the regulations impose different requirements on workplaces located in a wilderness area but do not define what is meant by that term. Pursuant to section 16 of the regulations, the difference between a remote workplace and a workplace located in a wilderness area is unclear.
On the other hand, paragraph 16.6(1)(b) requires an employer to keep posted or make available to every employee, in a conspicuous place in each workplace, information regarding the location of first aid stations and first aid rooms. Given that the employer is not required to provide a first aid station in all cases, paragraph 16.6(1)(b) should be reformulated to ensure the internal consistency of the regulations.
The department promised to make the necessary corrections in 2003. The department now intends to wait for the completion of a new standard on first aid, before making the amendments.
With respect to SOR/2014-141, three concerns raised by the committee in 1988 remain outstanding. The necessary correction was omitted from regulatory amendments made in 1994 and, again, in 2014. The amendment is required to address a drafting issue, a reference to an outdated standard and a formatting inconsistency in a schedule.
According to the minister's most recent letter, the department was to have initiated a comprehensive review of the regulations in 2016, to better align them with other health and safety regulations.
In both cases, the minister's letter does not set out a timeline. Yesterday afternoon, however, I received an email from the department regarding the two files, so I will pass on the information to you.
Publication of the new standard is expected in the next year. That is the first step in the process before the amendments can be made. Consequently, the department now indicates in its forward regulatory plan that it anticipates making the amendments in the next two years.
As for SOR/2014-141, the department plans to publish the anticipated amendments in Part I of the Canada Gazette in the spring of 2018.
The Joint Chair (Mr. Albrecht): So, obviously, the verbal update is much brighter than the material that we read earlier, with a 1988 start and 2014 no action.
What is your wish, committee? Are we okay to suggest that we allow the procedures to develop, as indicated, in the next year, in one case, and in the next year and a half in the other?
Mr. Badawey: I so move.
The Joint Chair (Mr. Albrecht): You move that we follow the recommendation of our counsel in terms of giving that some more time? Okay.
Mr. Dusseault: I am glad to hear that news. When I read the note this morning, I was very surprised that the necessary corrections had been omitted in the last regulatory amendments and that the department had not committed to addressing them. The department merely called it an omission and indicated that it would eventually address the corrections one of these days, as part of a more comprehensive regulatory package. I am therefore happy to hear about this latest development.
You said that the department had given itself a two-year time frame to make the amendments, did you not?
Ms. Borkowski-Parent: Yes.
Mr. Dusseault: I am not sure whether the committee members would like to ask the department to expedite the process, in light of the delays in recent years and their so-called inadvertent omissions. Perhaps we should ask them to speed up the process, given that their nonchalant attitude is the reason we are where we are today. We could suggest a year.
The Joint Chair (Mr. Albrecht): On the one hand, I see dramatic improvement from 30 years down to 2, which is great, but I agree that we probably could request more expeditious results.
We have a motion on the floor to proceed with the outline that our counsel gave us. I'm assuming that is all in writing by email, so we have confirmation that it will happen and not just verbal affirmation. Unless I hear someone wanting to change that, we're going to proceed with that motion to allow the department to follow through with the action as has been promised via our counsel. Is there any further discussion?
All in favour of the motion to proceed in the manner indicated? Opposed? One opposed. That motion is carried.
SOR/2015-169 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS
(For text of documents, see Appendix C, p. 17C:1.)
The Joint Chair (Mr. Albrecht): We will move to Item No. 3 on our agenda.
Ms. Borkowski-Parent: As is mentioned in the note prepared for you this morning, two issues were raised on this file. First, it is suggested that subsection 3.2(2) is drafted rather awkwardly and that it could lead to some confusion. While the department does not necessarily acknowledge the problem, it nevertheless mentions that the provision is, for all intents and purposes, spent and that it could be repealed if other amendments are made.
The second point pertains to the transitional provision found in section 5 of the amending regulations. On that point, it is unclear what the provision that states that courts shall consider ongoing application "having regard to sections 2 and 4'' means. Beyond the ambiguity, it is the retrospective aspect of that section that is the issue.
It was put to the department that if this transitional provision is indeed intended to apply the amended versions of sections 2 and 4 to the regulations to proceedings that had been commenced prior to the instrument coming into force, then this would amount to a retrospective application of the law.
As a general principle of statutory interpretation, legislation is presumed not to apply in a retroactive or retrospective manner, absent a clear indication to the contrary in the enabling act. The committee has always considered that subordinate legislation that would apply in a retroactive or retrospective manner must be expressly authorized by the enabling statute.
The department cited case law in support of its interpretation that the transitional provision is indeed not retrospective. For the reasons detailed in the note, it is suggested that the case cited does not support that view.
If it is the members' wish, counsel could write back to the department with further analysis and bring the department's response when it is received.
The Joint Chair (Mr. Albrecht): I think, under Item No. 1, the issue is to identify clearly when the change is expected.
Are there comments or questions from committee members, or do we follow up on the recommendation from counsel?
Mr. Badawey: Move it forward.
The Joint Chair (Mr. Albrecht): The motion is that we will follow the recommendation of counsel to request further information and the change date indicated. Is there any further discussion on that motion?
All in favour raise your hand? Opposed? Carried.
SOR/2008-180 — PRINCIPAL PROTECTED NOTES REGULATIONS
(For text of documents, see Appendix D, p. 17D:1.)
The Joint Chair (Mr. Albrecht): Next is Item 4.
I note that the same issue seems to be almost replicated directly in Items 5, 7, 8 and 9, so we might want to keep that in mind as we're dealing with No. 4. I look to counsel for her comments.
Cynthia Kirkby, Counsel to the Committee: With Item 4 specifically?
The Joint Chair (Mr. Albrecht): Yes, we'll start with Item 4. If you recommend it, we will proceed with all the others, because to me they seem to be very similar, if not identical.
Ms. Kirkby: There are some that I do intend to lump together.
Since this file was last before the committee, four of the promised amendments were made by SOR/2016-142, which is Item 18 on the agenda. These amendments related to French-English discrepancies. There are two remaining items, and it is suggested that the department's reply with respect to these items may be unsatisfactory.
First, section 2 of the regulations states that disclosure must be made in a manner that is not misleading. The enabling acts, however, establish an offence of knowingly providing false or misleading information in relation to any matter under the acts or the regulations. It therefore seems that either this aspect of the regulations serves no purpose because it simply repeats what the enabling acts already provide, or it unlawfully attempts to alter the scope of the statutory offence by doing away with the requirement that the misleading information be provided knowingly.
The other outstanding issue relates to paragraph 3(m), which requires the institution to provide to the investor "any other information that could reasonably be expected to affect an investor's decision to purchase the note.'' There are 13 types of information specifically enumerated under section 3, so the department was asked for examples of what else could be required.
Finance Canada's examples were the minimum or maximum amount of the note, or the currency involved, both of which seem to be quite basic types of information. This being the case, it is unclear why the information should not be specifically listed, rather than being left implicit in the phrase "any other information.''
The department's latest response provides no additional explanation on either of these points. Rather, it states simply that it has taken note of these concerns and will keep them in mind as part of the next periodic review of the financial statutes, but there is no actual undertaking to address these concerns and no timeline of when the next review will occur.
The Joint Chair (Mr. Albrecht): This sounds like a clear case of ignoring the requests and advice of the committee, so it's up to the committee to decide how we would like to proceed in this matter.
Senator Runciman: Mr. Chair, I would suggest this is a get-out-of-my-face response, and we should write back saying that that is an unacceptable response and we want a firm commitment and a timeline for fixing the regulations.
The Joint Chair (Mr. Albrecht): Is there any further discussion? Can we make that a motion?
Senator Runciman: So moved.
The Joint Chair (Mr. Albrecht): Mr. Dusseault?
Mr. Dusseault: Picking up on your point, I would suggest that the motion apply to items 4, 5, 7 and 8.
The Joint Chair (Mr. Albrecht): I will look to our counsel on this to see if it is satisfactory if we have the "same approach'' motion apply to 5, 7, 8 and 9. Maybe there are others, but those are ones that clearly came to my attention as I was reading through the material.
Ms. Kirkby: There's a lot of overlap of issues. There are some additional issues that I haven't mentioned, but in most cases there's no response on the minimum.
The Joint Chair (Mr. Albrecht): As the motion of Senator Runciman posited, would it be applicable to the others? Would it be adequate or would we need to add more to the motion to deal with the others? It seems like that motion would cover the broad scope of the issues.
Mr. Dusseault: All of the letters signed by Sandra Hassan appear to contain the same response. I don't know the numbers, but 4, 5, 7 —
The Joint Chair (Mr. Albrecht): Senator Runciman, if you're okay with it, we'll add Mr. Badawey's suggestion that we apply your motion to Items 4, 5, 7, 8 and 9.
Senator Runciman: Fine.
The Joint Chair (Mr. Albrecht): Is there any further discussion? There's more than one way to get our work done quickly and efficiently.
All in favour of that motion, raise your hand? Carried.
We will move through the others, though, just in case there are other comments that you would like to make.
SOR/2009-257 — CREDIT BUSINESS PRACTICES (BANKS, AUTHORIZED FOREIGN BANKS, TRUST AND LOAN COMPANIES, RETAIL ASSOCIATIONS, CANADIAN INSURANCE COMPANIES AND FOREIGN INSURANCE COMPANIES) REGULATIONS
(For text of documents, see Appendix E, p. 17E:1.)
The Joint Chair (Mr. Albrecht): Any other comments that we should be aware of with regard to Item 5 on our agenda?
Ms. Kirkby: The other points involved are what it means for a document to unlawfully purport to originate from a court. There's some vague and subjective language, including of the type the committee has objected to in its report No. 89.
The Joint Chair (Mr. Albrecht): We would look to counsel to personalize each of the letters to each of these points under the scope of the motion that we just carried.
Number 6 seems to be a little different. I don't know if you want to comment on number 6 and lead us through it.
SOR/2009-324 — REGULATIONS AMENDING THE ESQUIMALT GRAVING DOCK REGULATIONS, 1989
(For text of documents, see Appendix F, p. 17F:1.)
Ms. Borkowski-Parent: The schedules to the regulations use outdated units of measurement to establish the dock charges. Correcting the problem would simply require removing the word "tonnage'' from the schedules, because gross tonnage, the system in use since 1982 to measure the capacity of a vessel, does not use units, or UMS units. The committee initially brought the matter to the department's attention in a letter in 2010.
As per the chronology in the briefing note, over the past seven years, the department repeatedly indicated that the amendments were imminent. In its most recent letter, dated February 13, 2017, the department provided no time frame and indicated the following:
. . .the proposed amendment is an administrative requirement, which has no impact on the general operation of the Esquimalt graving dock or on the users of this facility.
However, gross tonnage and tonnage are not equivalent units. The committee may therefore wish to inform the department that it does not have the authority to impose charges other than those specified in the schedules to the regulations.
Furthermore, despite the so-called administrative nature of the corrections, it is difficult to understand why, seven years later, the department is only at the stage of preparing a summary of the impact study of the new regulations.
The Joint Chair (Mr. Albrecht): It seems like it's time for action. Is anyone prepared to make a motion in dealing with Item No. 6? Mr. Dusseault?
Mr. Dusseault: I think our response should be that we find the department's response unacceptable. The fact that the problem has no impact on the ground or on day-to-day operations is no reason to allow the situation to continue as is. In February 2016 — actually, in June 2015 — the department committed to completing the amendment process by fall 2015. Then, in February 2017, the department indicated that it was not going to move forward, that it did not consider the correction important because it simply addressed an administrative error.
I think we should inform the department that the committee finds its response unacceptable and trusts that it will provide a more satisfactory response, along with a clear time frame for the resolution of these two matters once and for all.
The Joint Chair (Mr. Albrecht): Are you prepared to include a deadline in your motion, such as the end of this year or something similar? I don't know if you want to include that in your motion.
Mr. Dusseault: "As soon as possible'' is the wording I would use.
The Joint Chair (Mr. Albrecht): Is the committee comfortable with that, given the long delay?
Mr. Diotte: I'd put a date on it.
The Joint Chair (Mr. Albrecht): Is there any further discussion on the date aspect?
Mr. Diotte: Obviously, given their previous record, I think you've got to put a date on it. By the end of this year would be pretty reasonable. That's several months.
The Joint Chair (Mr. Albrecht): Would you be in favour of adding that, Mr. Dusseault? Okay, so we'll have the motion amended to include the date December 31, 2017.
The motion is on the floor. Is there any discussion or concern with the motion? Seeing none, all in favour? Please raise your hand. Opposed? That motion is carried. Thank you, Mr. Dusseault.
SOR/2010-68 — MORTGAGE INSURANCE BUSINESS (BANKS, AUTHORIZED FOREIGN BANKS, TRUST AND LOAN COMPANIES, RETAIL ASSOCIATIONS, CANADIAN INSURANCE COMPANIES AND CANADIAN SOCIETIES) REGULATIONS
SOR/2010-69 — MORTGAGE INSURANCE DISCLOSURE (BANKS, AUTHORIZED FOREIGN BANKS, TRUST AND LOAN COMPANIES, RETAIL ASSOCIATIONS, CANADIAN INSURANCE COMPANIES AND CANADIAN SOCIETIES) REGULATIONS
(For text of documents, see Appendix G, p. 17G:1.)
SOR/2011-98 — DEPOSIT TYPE INSTRUMENTS REGULATIONS
(For text of documents, see Appendix H, p. 17H:1.)
SOR/2012-23 — NEGATIVE OPTION BILLING REGULATIONS
(For text of documents, see Appendix I, p. 17I:1.)
The Joint Chair (Mr. Albrecht): We will discuss Items 7, 8 and 9 in that order. Is there anything unique to those?
Ms. Kirkby: There's nothing else. It's the same issue.
The Joint Chair (Mr. Albrecht): They seemed to be almost identical, so thank you for helping us move through those quickly.
SOR/2013-101 — ADMINISTRATIVE MONETARY PENALTIES (CONSUMER PRODUCTS) REGULATIONS
(For text of documents, see Appendix J, p. 17J:1.)
The Joint Chair (Mr. Albrecht): Next is Item 10 on our agenda.
Ms. Borkowski-Parent: There are two issues discussed in the note. First, subsection 3(2) of the regulations anticipates a review officer deciding that an order should have been made under a different provision of the act. The department was asked how subsection 3(2) operates in practice and if examples could be provided of when the review officer would determine that the order should have been made under a different provision, and would then amend it, as permitted under subsection 35(10).
The department's response does not describe the operation of the subsection or provide examples of when a review officer would amend an order in this respect, although it indicates that no specific cases have arisen to date.
The department seems to understand the issue as relating to the clear identification of the relevant provision of the act in the review officer's written decision. In fact, the question raised was when a review officer would determine that the order should have been made under a different provision of the act, rather than that it should not have been made at all or that its scope should be amended.
The provisions seem sufficiently distinct that confusion with regard to which is the proper basis for the order seems unlikely. The department could, again, be asked for clarification on this point.
As for the second issue, it was pointed out to the department that the language used in the French version of the section to refer to an individual is not consistent with the parent act, which uses "individu'' rather than "personne physique.'' The department agreed that the wording of the regulations should be consistent with the wording of the act and stated that, therefore, the term "personne physique'' could be changed to "individu.'' This does not appear to be a very firm commitment, however, and no timeline for any change has been provided.
The Joint Chair (Mr. Albrecht): Again, we're dealing with a bit of intransigence here, so in terms of "would'' or "should,'' I would suggest that we should say "must,'' but I'm going to look to the committee for your input on the second part.
Mr. Oliver: I have a question on the first part. I looked at the 13 criteria. As I understand this, it sets up a provision where a corporation has had an order put on it under one section and wants to go to another section. If that change is made by the reviewing officer, it allows them to change the gravity score, which has to do with fines, I guess, or penalties.
I didn't understand why this wasn't consistent. I couldn't apply it to what the 13 points are that we're supposed to be considering. Is this poor drafting?
I understood that it wasn't clearly written, and I understood what they were trying to do with the provision.
Ms. Borkowski-Parent: It's what I call a matter of internal coherence and how sections apply with each other.
If we go back to the beginning, the minister may either order the recall of a consumer product, because those deal with consumer products. What are the other provisions? Voluntary recall and then further tests.
Mr. Oliver: It had to do with the gravity score and if they change what section —
Ms. Borkowski-Parent: Yes.
If an order is made under some of the provisions under section 31 — (a), (b) and (c), if I remember correctly — that is considered a gravity of two. The other provision is considered a gravity of three, and that would be reflected in the administrative monetary penalty, or the fine, imposed.
Since the cases provided in 31 and 32 are very clear — there's no ambiguity and they seem to be mutually exclusive — the department was asked for an example of how an officer would review the order that was made under 31, for example, and amend it to make it an order under 32.
It seems like those cases don't overlap, so why would you amend it to something else? It's a matter of understanding the scheme, and their response is unenlightening.
Mr. Oliver: I read that as the ability for somebody who was under one of the orders to appeal to have that order written under a different section so that their penalty wouldn't be as severe. It's a right to an appeal. You're saying that there's such a clear difference between those two categories that that could never arise, therefore why create the provision for an appeal and an adjustment to the score.
Ms. Borkowski-Parent: I'm not willing to say that it would never arise. That's why the question was asked of the department.
Mr. Oliver: They said it has never happened, but that doesn't mean it couldn't happen; it just hasn't happened yet. I didn't quite get what we were pursuing here, to be honest with you.
Ms. Borkowski-Parent: The question was really to understand the scheme. Since they provided no example, even if it has not arisen, clearly they had an intention with putting "amend'' in section 35. What was the intention behind that? And to cover what kind of cases? It was not apparent at first glance, and the department's response is still not making it apparent.
Mr. Oliver: So our response back would be, "We understand there have been no cases yet, but could you please explain where you think there's a potential for an appeal''?
Ms. Borkowski-Parent: Yes.
Mr. Oliver: Okay.
The Joint Chair (Mr. Albrecht): Are there any further questions?
Is it agreed that we will ask for further clarification on the first point and to ask for a specific commitment and a timeline on the second point with regard to the French and English discrepancy? Seeing agreement, we'll proceed in that manner. Thank you.
SOR/2007-255 — ELIGIBLE FINANCIAL CONTRACT REGULATIONS (CANADA DEPOSIT INSURANCE CORPORATION ACT)
SOR/2007-256 — ELIGIBLE FINANCIAL CONTRACT GENERAL RULES (BANKRUPTCY AND INSOLVENCY ACT)
SOR/2007-257 — ELIGIBLE FINANCIAL CONTRACT GENERAL RULES (COMPANIES' CREDITORS ARRANGEMENT ACT)
SOR/2007-258 — ELIGIBLE FINANCIAL CONTRACT REGULATIONS (WINDING-UP AND RESTRUCTURING ACT)
(For text of documents, see Appendix K, p. 17K:1.)
Ms. Kirkby: A discrepancy between the English and French versions of the definition of "derivatives agreement'' in section 11 was corrected in 2016. The only outstanding concern, raised in 2010, pertains to a discrepancy between a term used in the enabling statute and the terminology used in the regulations.
In the regulations, the definition of "financial intermediary'' refers to a "clearing agency.'' The act, however, refers to a "clearing agent.'' The Department of Finance indicated that the two terms were not synonyms and that a regulatory amendment was therefore not needed to reflect the terminology in the enabling statute. The difference between the two terms, nevertheless, remains unclear. The committee maintained that it was necessary to add a definition to the regulations to differentiate between a clearing agency and a clearing agent.
The Department of Finance responded that it would continue its analysis of whether the amendments were necessary and that, if they were, it would endeavour to make them at the next available opportunity.
The Joint Chair (Mr. Albrecht): So in the response letter of August 22, we have four paragraphs. The first two are satisfactory, the third one would be questionable and the fourth one is satisfactory.
Is the committee agreed to allow the department to proceed under paragraph 3 in the manner in which they have indicated? If changes are required after their internal discussion analysis, the department will endeavour to make them at the next available opportunity. Is that satisfactory to the committee?
Mr. Badawey: I so move.
The Joint Chair (Mr. Albrecht): Any discussion? Any concerns on the part of counsel to proceed in that manner?
Ms. Kirkby: I'll just point out that the issue was raised in 2010, so it seems perhaps they could have completed more analysis by this stage.
The Joint Chair (Mr. Albrecht): Do we want to be more directive in relation to paragraph 3 where they're talking about if changes are needed? I think that's the crux of the issue for the committee.
Mr. El-Khoury: It leaves the matter hanging if the department says that it will continue its analysis of whether amendments are needed to add clarity to the definition. Is there a time frame? A proposed date? It's vague.
The Joint Chair (Mr. Albrecht): I think that's the crux of the issue, but it's up to the committee to decide to allow this to proceed or not. I value the input of our counsel on this as well. You deal with this on a daily basis, so we need to be sensitive to that.
Ms. Borkowski-Parent: It's a little peculiar that the department would state from the get-go that, yes, there's a difference between the two terms but, no, they're not able to provide a definition of the second term.
This was raised in 2010 and the department has been adamant that the two terms do not mean the same thing. The committee has asked repeatedly, "What does the second term mean, because there's no definition and it is not the term used in the act?'' Some clarity should be provided as to the definition of "agence de compensation.''
The Joint Chair (Mr. Albrecht): We have a motion on the floor to allow this to proceed. We're now having discussion indicating that maybe we want to take a step back from that and ask for clearer action on the third part of the letter. I need the committee's input.
Mr. Badawey, do you have any thoughts? Do you want to proceed as you had indicated?
The motion stands that we're going to simply allow this to proceed in the way that the department has indicated. If you feel differently, we'll have to defeat the motion. Unless there's further discussion, I want to go to the motion.
All in favour of the motion, please raise your hand? Opposed? Carried.
SOR/2008-120 — VESSEL OPERATION RESTRICTION REGULATIONS
SOR/2010-34 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS
SOR/2010-226 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS
(For text of documents, see Appendix L, p. 17L:1.)
The Joint Chair (Mr. Albrecht): Next is Item 12 on our agenda.
Ms. Kirkby: When these regulations were last before the committee in June 2015, Transport Canada had advised that promised amendments would be made in three separate packages. The first two of those packages were made in 2015.
The correspondence provided today relates to the third package, because it seemed that some of the issues originally raised in 2011 would perhaps be overlooked. Transport Canada has now confirmed that those amendments will indeed be included in the third package. Although it was originally to have been made in 2016 and then in early 2017, it has not yet been published, so an update in this regard could be sought.
The Joint Chair (Mr. Albrecht): All in agreement with proceeding in that fashion? This one looks satisfactory. I see affirmation.
SOR/2014-233 — RAILWAY SAFETY ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
SOR/2015-133 — REGULATIONS AMENDING THE RAILWAY SAFETY ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
(For text of documents, see Appendix M, p. 17M:1.)
The Joint Chair (Mr. Albrecht): We will move on to Item 13.
Ms. Kirkby: This item concerns the 2014 regulations and also the 2015 regulations that amended them. The regulations designate various provisions under the Railway Safety Act. If those provisions are contravened, an administrative monetary penalty, or AMP, can be imposed, which is described as a more rapid and less costly means of enforcing legislative requirements than prosecution.
As may be obvious from some of the materials, some letters crossed in the mail which may have made the discussion of common issues a bit confusing. In broad terms, there were three types of issues raised.
First, in some instances the regulations designate provisions that cannot really be contravened; for example, because they simply give the minister the discretion to decide whether to issue an order. In those instances, Transport Canada has agreed that in fact the intent was to designate the contravention of an order made under those provisions rather than the provisions themselves. The department has already corrected or agreed to correct all instances of this issue.
The two unresolved issues relate broadly to undue administrative discretion. First, some provisions have been designated in two places under the regulations with different potential penalties. For example, section 17.2 of the act requires companies to comply with rules made under sections 19 and 20 of the act.
Item 6 of Part 1 of Schedule 1 of the regulations establishes maximum amounts payable of $50,000 for an individual and $250,000 for a corporation for contravening section 17.2 of the act. But paragraph 3(1)(b) of the regulations separately designates violations of a rule made under sections 19 or 20 of the act, and the maximum amounts payable in that case are $25,000 and $125,000. This is the same conduct, failure to comply with the rules made under sections 19 and 20 of the act, but depending on which provision of the regulation is used, the AMP can be twice as much.
There's no guidance in the regulations about which provision should be used, so the applicable penalties are unduly dependent on the administrative discretion of the enforcement officer.
Transport Canada notes that departmental policy indicates the director general of rail safety must approve the issuance of all AMPs, resulting in some degree of uniformity of application, but as the committee has frequently pointed out, policy is not law. Further, this simply replaces the exercise of discretion by one administrative official with the exercise of discretion by another.
It therefore continues to seem that this issue should be corrected in the regulations themselves either by removing the duplicate designations or by providing guidance in law on how the discretion is to be exercised.
The other unresolved issue relates to how the enforcement officer decides whether to impose the individual penalty or the corporation penalty on a railway company. The regulations designate various provisions that impose obligations on a railway company and then establish different penalties depending on whether a particular railway company is an individual or a corporation.
The department has confirmed that a railway company can be operated by a sole proprietor and appears to suggest that in those instances it is the individual AMP that would apply. The department also states, however, that the nature of the violation is relevant to determining whether the railway company should receive the individual or corporate penalty. The department gives as an example a provision that places an obligation on an employee, but none of the relevant provisions does.
If the committee agrees, the question of the relevance of the nature of the violation could be pursued. The issue of duplicate designations could also be pursued and an update on promised amendments could be sought.
Senator Runciman: I think we should ask for a timeline on those promised amendments; I agree with that.
With the whole issue of discretion, I'm somewhat sympathetic, but when you go through all of this, your head is sore after trying to come to grips with it. This may be one of those issues, specifically with respect to discretion and administrative penalties, where we may want to call a witness so we can get into more in-depth discussion, rather than going back and back again and having them try to explain it in writing. I think it's going to be a challenge. It seems to be a challenge.
I would suggest that we ask for a timeline with respect to the promised amendments, but as the second part of this, invite witnesses to deal with the other issues that the committee has raised.
The Joint Chair (Mr. Albrecht): The issue of an individual or a corporation?
Senator Runciman: Yes, the whole question of discretion and the two issues that were raised by counsel.
The Joint Chair (Mr. Albrecht): Are you suggesting that we have the witnesses at the same time as we seek clarification, or we seek clarification first and then possibly move to witnesses?
Mr. Badawey: Yes.
Senator Runciman: Whichever, Mr. Chair.
The Joint Chair (Mr. Albrecht): I'm wondering if we could save ourselves some time. If we got satisfactory clarification by way of letter, we wouldn't have to have them appear. However, if we don't, we can still take that next move, but that's only a suggestion.
Mr. Bratina: Mr. Chair, the discretion is implicit in the word "maximum,'' so why do you have to have two levels of discretion? One is individual and another is corporation. But then there are levels, and the maximum amount payable for the violation is discretionary because it's a maximum. So I'm not sure why they felt they had to incorporate two terms, which are confusing anyway, because a corporation is a person. I'd love to hear testimony on why you need two levels of discretion.
Mr. Badawey: I would agree with Senator Runciman to look at bringing witnesses here.
I also agree with the aspect of the guidance that counsel spoke about and clarification with respect to the individual versus the corporation. Add to that the amendments that they spoke about within their correspondence. If we can receive that first, and then we could have the witnesses come here so we can discuss it.
The Joint Chair (Mr. Albrecht): Senator Runciman, are you comfortable with that?
Senator Runciman: I'm fine.
The Joint Chair (Mr. Albrecht): Counsel, any further input?
Ms. Kirkby: No, that's fine.
The Joint Chair (Mr. Albrecht): Any other discussion by committee members? So we will get clarification on these points and then, if necessary, move to calling witnesses. All in favour? Opposed? Carried.
SOR/2014-210 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS
(For text of documents, see Appendix N, p. 17N:1.)
SOR/2015-123 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS
(For text of documents, see Appendix O, p. 17O:1.)
Ms. Kirby: If the committee members are in agreement, I will group items 14 and 15 together.
Approximately 25 issues will be corrected in these two files, mainly grammatical errors and incorrect geographical coordinates. In July 2016, Transport Canada indicated that all promised amendments would be made in early 2017. Those amendments have yet to be made, however. Counsel could write the department to inquire as to when it expected the amendments to be made.
The Joint Chair (Mr. Albrecht): It looks like we're making good progress on both 14 and 15. All agreed to let that continue? I see nodding. Thank you very much.
SOR/2013-73 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
(For text of documents, see Appendix P, p. 17P:1.)
Ms. Borkowski-Parent: Section 13.11 of the regulations allows for biometric and related personal information collected for immigration purposes to be used or disclosed by the RCMP to establish or verify the identity of a person in order to prevent, investigate or prosecute an offence under Canadian federal or provincial law, or to establish or verify the identity of a person whose identity cannot reasonably be otherwise established or verified because of their death or physical or mental condition.
Although both subsection 13.11(1) of the regulations and paragraph 150.1(1)(d) of the act refer to biometric information and related personal information that is provided to the RCMP under the Immigration and Refugee Protection Act, there seems to be no provision in either act or the regulations pursuant to which information would actually be provided to the RCMP.
This is not to say that the information may not be provided but merely that it cannot be said to be provided under the act. If there's nothing in the act or the regulations that addresses the provision of this information to the RCMP, the authority to do so must lie elsewhere.
This being the case, as a matter of drafting it is incorrect and misleading to refer to information provided to the RCMP under this act if there's no such authorization.
The department has suggested that paragraph 8(2)(a) of the Privacy Act authorizes it to provide biometric information to the RCMP for the purpose for which the biometrics were obtained. In this case, the department provides biometric information to the RCMP for the purpose of admissibility screening under the Immigration and Refugee Protection Act.
It is also suggested that there may be other possible authorities that the department has yet to identify, under which the RCMP may collect this information, which could somehow negate the need to amend section 13.11 of the regulations or paragraph 150.1(1)(d) of the act.
Paragraph 150.1(1)(d) of the Immigration and Refugee Protection Act has been amended in 2015 as part of a broader set of amendments to expand biometrics screening in Canada's immigration program. When this amendment comes into force, paragraph 150.1(1)(d) will permit the making of regulations relating to the retention, use, disclosure and disposal by the RCMP of biometric information, and any related personal information that is collected under this act and provided to for the enforcement of any law in Canada or of a province.
So that will clarify that the biometric information and related personal information that may be retained, used, disclosed and disposed by the RCMP is that which is collected under the act.
In its latest letter, the department explains that the amendment to paragraph 150.1(1)(d) of the Immigration and Refugee Protection Act will be brought into force once related amendments to the regulations have been prepared. It is anticipated that the proposed regulations in support of the legislative amendment will be prepublished in the Canada Gazette — Part I in the fall of 2017. So counsel could monitor the file as per our usual practice.
The Joint Chair (Mr. Albrecht): Are there concerns in allowing this to proceed with their promised publishing in the Canada Gazette fall of 2017? Is everyone in agreement with this procedure? May I see your hands? Opposed? Carried.
SOR/2007-90 — RULES AMENDING THE PATENT RULES
(For text of documents, see Appendix Q, p. 17Q:1.)
Ms. Borkowski-Parent: Ten issues were initially raised by committee counsel in 2015. The Patent Act was amended in June 2015. Owing to the amendments to the act, the department indicated that it intended to undertake a full review of the rules. However, in its response, the department did not provide any explanation as to the points raised, many of which pertained to the consistency and technical application of the rules. In addition, the department made no mention of the time frame for its review of the rules.
The Joint Chair (Mr. Albrecht): So the department has committed to move forward but no time frame has been indicated. Is the committee prepared to suggest a time frame or is counsel willing to give a suggestion as to what is realistic for a time frame in a matter like this?
Senator Runciman: I thought we should write back asking them for their time frame. When do they plan to do this? If they don't have a response, ask them for a specific response to the 10 points that we raised in the original letter.
The Joint Chair (Mr. Albrecht): Is there any further discussion on that suggestion? Ask them for a time frame response by the end of June this year so we know what the plans are going forward. So they would at least give us their time frame, not that they would identify the amendments by June.
Senator Runciman: How about the end of May?
The Joint Chair (Mr. Albrecht): I think I see general agreement there for the end of May. Is everyone in agreement? Thank you.
SOR/2016-142 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF FINANCE REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix R, p. 17R:1.)
SOR/2016-276 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CANADIAN OIL AND GAS EXPLORATION EXPENSE)
(For text of documents, see Appendix S, p. 17S:1.)
The Joint Chair (Mr. Albrecht): And on to Item No. 18.
Ms. Borkowski-Parent: If the committee will allow me, I will deal with Items 18 and 19 under "Action Taken'' together.
Item 18 makes 25 amendments addressing matters raised by the committee. Item 19 makes one amendment that has been eight years coming.
SOR/2016-115 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (INDIAN ISLAND)
SOR/2016-116 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (INDIAN ISLAND)
SOR/2016-117 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (WAYCOBAH)
SOR/2016-118 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (WAYCOBAH)
SOR/2016-120 — ORDER AMENDING SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2016-122 — ORDER AUTHORIZING THE ISSUE OF A TWO DOLLAR CIRCULATION COIN SPECIFYING THE CHARACTERISTICS AND DETERMINING THE DESIGN
SOR/2016-123 — REGULATIONS AMENDING THE NARCOTIC CONTROL REGULATIONS (OPIUM POPPY)
SOR/2016-127 — ORDER AMENDING SCHEDULE 1 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2016-2 (CAYOOSE CREEK)
SOR/2016-129 — REGULATIONS IDENTIFYING THE PROVISIONS OF THE LAWS OF THE LEGISLATURE OF YUKON CONFERRING RIGHTS OF ACCESS FOR THE PURPOSE OF THE EXERCISE OF A MINERAL RIGHT
SOR/2016-148 — NORTH AMERICAN LEADERS' SUMMIT 2016 — PRIVILEGES AND IMMUNITIES ORDER
SOR/2016-150 — ORDER ADDING A TOXIC SUBSTANCE TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2016-155 — EXPIRY OF SECTIONS 10 TO 12 AND 13 TO 15 OF THE SOFTWOOD LUMBER PRODUCTS EXPORT CHARGE ACT, 2006 REGULATIONS
SOR/2016-157 — SMELTED JEWELLERY REMISSION ORDER
SOR/2016-158 — ORDER 2016-87-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2016-159 — ORDER 2016-112-21-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2016-160 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER
SOR/2016-196 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS
SOR/2016-202 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS — NEWFOUNDLAND AND LABRADOR NON-COMPULSORY AREAS
SOR/2016-205 — REGULATIONS AMENDING THE PENSION BENEFITS STANDARDS REGULATIONS, 1985
SOR/2016-210 — ORDER AMENDING SCHEDULE III TO THE FINANCIAL ADMINISTRATION ACT
SOR/2016-211 — EMERGENCY ORDER FOR THE PROTECTION OF THE WESTERN CHORUS FROG (GREAT LAKES / ST. LAWRENCE — CANADIAN SHIELD POPULATION)
SOR/2016-213 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2016-214 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (GULL BAY)
SOR/2016-215 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (GULL BAY)
SOR/2016-216 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (WUSKWI SIPIHK)
SOR/2016-217 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (WUSKWI SIPIHK)
SOR/2016-218 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (MUSQUEAM)
SOR/2016-219 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (MUSQUEAM)
SOR/2016-220 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (CHIPPEWAS OF GEORGINA ISLAND)
SOR/2016-221 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (CHIPPEWAS OF GEORGINA ISLAND)
SOR/2016-222 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (NOOAITCH)
SOR/2016-223 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (NOOAITCH)
Ms. Borkowski-Parent: Under "Statutory Instruments Without Comment,'' there are 32 instruments which have been examined and found to comply with the committee's criteria. As usual, the regulations themselves are not printed in the materials, but counsel has copies at the meeting should a member want to examine them.
The Joint Chair (Mr. Albrecht): I think in context, we always remember, committee members, that we have a lot more getting done at the end of these reports than what it seems like, because we wade through the first hour of our reports. Thank you to our counsel for that good work.
I would remind committee members that at this point we are planning to meet next Thursday. I know next Thursday in the house is a Friday schedule, so I want to warn you all. Please be here. We'll need a quorum to convene. We have lots of material to deal with. Simply pushing back our meetings for another two weeks is not helpful, so I want to count on committee members to either be here or have a replacement so we can continue on with our agenda.
If there's opposition to that, the committee is the master of our own destiny, but my suggestion as chair is that we continue to meet. Will senators be here?
Senator Runciman: Yes.
The Joint Chair (Mr. Albrecht): One of our main issues is that we need our senators.
Is there anything else we need to deal with?
I didn't get formal agreement on the last two items, 18 and 19. Thank you for keeping me accountable. All agreed that we simply proceed in that manner? Carried.
So next Thursday at 8:30 hopefully we'll be able to get through the entire agenda.
(The committee adjourned.)