---

Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 29 - Evidence - February 1, 2018

---

OTTAWA, Thursday, February 1, 2018

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for review of Statutory Instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Albrecht): It is great to welcome some new members with us today.

Mr. Rogers, welcome. Good to have you as part of our committee permanently.

Mr. Van Kesteren is sitting in for Mr. Shipley today.

Welcome back to all of you. It’s still only one month gone, so I will still say happy new year and wish you the best in the year ahead.

We have the agenda items before us, and I will look to counsel for direction on the first item.

SOR/2004-109 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS

(For text of documents, see Appendix A, p.  )

Évelyne Borkowski-Parent, General Counsel to the Committee: Good morning. The last time this file was before the committee, members heard witnesses from Environment and Climate Change Canada on the operation of the Pulp and Paper Effluent Regulations scheme. While members were satisfied with the overarching goal of the regulations, answers on the legal questions remained outstanding after the appearance of departmental officials, such that the committee asked counsel to draft a report on these issues.

In the interim, however, counsel had occasion to meet with the department over the course of the summer. This led to a follow-up letter from the department to the committee in November. The letter provides the long-awaited answers sought by the committee, which is why the file is before you this morning. I suggest going over the committee’s original objections and a new interpretation provided by the department, and then members can decide if they still want to go ahead with a draft report.

The regulations were made under the authority of section 36 of the Fisheries Act. Subsection 36(3) prohibits the deposit of deleterious substances in water frequented by fish, unless such a deposit has been authorized by regulations made by the Governor-in-Council under subsection 36(4). So the Pulp and Paper Effluent Regulations constitute an authorization under 36(4) for pulp and paper mills to deposit their effluent in a municipal waste water treatment facility.

The crux of the committee’s questions was whether regulations were ultra vires of the enabling act because the Fisheries Act prohibition should not apply to waters entering the municipal waste water treatment facilities. If that were to be the case, there would be a breach of the act anytime someone flushed a deleterious substance down the toilet or drain.

Throughout the years, that position was contested by the department until the assistant deputy minister came to appear before the committee last spring. At that time, the department finally agreed to the view that there was a potential contravention to the Fisheries Act whenever households used the municipal water treatment system. But the department was using its prosecutorial discretion to go after more serious contraventions that were considered harmful to the environment, such as the ones involving mill effluent.

The prosecutorial discretion principle is recognized by the courts, as long as it’s used to make specific determinations in relation to individual cases, not as an overall decision not to apply the law.

The new interpretation provided by the department relies on the portion of subsection 36(3) which reads “in any place under any conditions where the deleterious substance” may enter water frequented by fish. That passage is even more eloquent in French.

[Translation]

The French reads:

... si le risque existe que la substance ou toute autre substance nocive provenant de son immersion ou rejet pénètre dans ces eaux.

[English]

The department’s November letter states that the need whether the deposit occurs under any place or any conditions where there is a risk that the deleterious substance will enter water frequented by fish has been central to distinguishing between the types of deposits. This statement finally provides both an explanation as to the legal basis for the regulations, as well as the confirmation the department is not improperly using prosecutorial discretion when it distinguishes types of deposit.

The last question pertained to the conditions of the deposits imposed by the regulations, and the fact they did little to protect the environment. So in order to make a deposit in a waste water treatment facility, all a mill has to do is provide certain identifying information and prepare an emergency response plan. The end result is the same for the environment regardless of whether these administrative requirements have been followed.

The department explains that there is a third requirement, which is not stated in the clearest of terms, currently in the regulations. According to subsection 6(3), effluent can only be deposited in certain is regulated waste water treatment facilities in order to meet certain minimum quality standards. That being the case, if the committee is satisfied with the explanation regarding the legality of the regulations, the department proposes to amend the regulations to clarify that last requirement and make it obvious that it is a condition for deposit.

The Joint Chair (Mr. Albrecht): It’s my understanding that at the end of your notes we have the three possible scenarios that the department is suggesting, three ways to explore the approaches. Do we have any timeline as to when they would come back with which option they have chosen?

Ms. Borkowski-Parent: I think the first issue is whether this is a satisfactory answer. If that is, then they will move to amendments.

We have had no further communication. The last letter was from November stating the option they will pursue, but that is something we could follow up on.

The Joint Chair (Mr. Albrecht): Is the committee satisfied with the explanation in regard to the legality of the —

Mr. El-Khoury: I have one question. When we talk about the substance to be pumped, did we take any measures in order to take into consideration why we wait until such a substance is pumped into the water? Why don’t we take some measure in order to prevent it from happening at all? Why wait until we pump it?

I also see no clear definition for “deleterious substance.”

Ms. Borkowski-Parent: To answer your first question as to why there is mill effluent, I’m not the best person to answer that question. But the regulations make sure that those effluents that are considered fairly toxic are put in a facility that can handle the treatment. That’s the treatment of those substances. That is the purpose of the regulations at this point, and to make sure they are not put in facilities that are not regulated or elsewhere, where they wouldn’t be treated at all.

As far as the definition of “deleterious,” I think it’s in the act. The act has some requirement as to what “deleterious substance constitutes.” There are tests.

Penny Becklumb, Counsel to the Committee: The regulations where they’re set out as deleterious for the purpose of the regulation, what counts as deleterious for mill effluent, there are three different types of it. So there is definitely a legal definition for “deleterious.” They mean deleterious to fish. This is under fisheries, so it will harm fish. One of them is oxygen-demanding matter.

Ms. Borkowski-Parent: Yes, BOD matter, which is biochemical oxygen demand, suspended solids and acutely lethal effluents. In order to determine that, you do tests on the substance and what it does to the fish.

Mr. El-Khoury: Thank you.

Mr. Badawey: Regarding the comment made earlier comparing pulp and paper effluent to household effluent, the concern I have is that albeit they both go into the same treatment plant and they both can be considered effluent in a general nature, the reality is that there are times where you have combined sewer overflows, and the treatment plant will let out a lot of that effluent into streams. This being a lot more serious and toxic, if that were to happen and we had a situation with a lot of rain and combined overflow, and therefore a lot of the effluent spilled out into the lakes and streams, including this pulp and paper effluent, how would this take that into consideration if there was a restriction to that versus, once again, the household effluent?

Ms. Borkowski-Parent: I believe that’s a policy question that we could ask of the department.

The original objection of the committee was the legality of the regulations because the Fisheries Act does not distinguish between types of deleterious substance deposits. Clearly, there was a regulation here targeting a certain type of effluent because of its toxicity. It’s the legal basis for that which was at issue.

With that new interpretation provided by the department, which does give a legal basis to what they are doing, I believe the committee’s concern as to the legality of the regulations could be resolved. That being said, as to whether this is the best possible mechanism to ensure that that toxic effluent does not end up in streams, I could ask the department, but it’s a policy question they have to resolve.

Mr. Badawey: Fair enough. Thank you.

Mr. Oliver: I thought this addressed our concerns. It may not be ideal, but it addressed the fundamental concerns we had. If they adopt one of these three, the regulations will be consistent with the act, and they are not overstepping for one area. So I think we should accept it.

The Joint Chair (Mr. Albrecht): Mr. Oliver, are you prepared to suggest that we put a timeline on coming back to us with one of the three so that this doesn’t drag on for another four years, or do we want to leave it open-ended?

Mr. Oliver: Where are we at with timelines? I can’t remember the last discussion we had before Christmas what we had decided on timelines.

The Joint Chair (Mr. Albrecht): I think we have a sort of fuzzy approach to timelines, but this one has been dragging on. I’m of the opinion it would be wise for us to set one. All we’re asking them to do is tell us which one they will choose. We will not have it resolved, but at least get on with the next step toward resolution.

Mr. Oliver: Is there a recommendation on a timeline for a response on this?

Ms. Borkowski-Parent: As a matter of course, whenever we write back, the file is brought back four months later, so we expect responses from the department within four months.

The first thing we could do at this point is to ask whether they have picked one of the three options mentioned in the note, whether doing it via the MARs process, rolling it into another package or going through the modernization process. It might be worth mentioning that those modernization initiatives tend to drag on, and it means that the committee’s concerns get rolled into bigger initiatives and don’t get resolved in a timely manner. So there might be a preference for options one or two, but we would expect a response from the department within four months.

Mr. Oliver: So could we thank the department for their attention to this issue, that we would prefer options one or two and we expect a response in four-months' time?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Mr. Albrecht): Is the committee prepared to support that idea. I see nodding around the table. Any objections? If not, so ordered. We will ask our counsel to draft a letter indicating our preference for one or two and, within four months, to let us know which they have chosen and the progress on that.

[Translation]

SOR/2008-222 — WAGE EARNER PROTECTION PROGRAM REGULATIONS

(For text of documents, see Appendix B, p. )

Ms. Borkowski-Parent: After sending a notice of disallowance to the department, the committee also had the opportunity to hear from witnesses on this file. Following their appearance, the minister prepared an update on the remaining issues, which you have in your hands.

First, the committee is waiting for amendments to the regulations in order to correct the discrepancy between the two languages, in sections 3 and 9, and to clarify the time periods set out in sections 9, 11 and 13. Allow me to quote from the minister’s letter of August 2017:

These regulatory amendments will be addressed in the Labour Program’s Forward Regulatory Plan for the 2018-2019 fiscal year.

For your information, each department posts online a forward regulatory plan setting out the regulatory processes under way. While this can be a good indication of the department’s priorities, it remains an administrative document that can be changed without additional formalities. Consulting the plan reveals one point that is germane to the regulatory amendments that the committee is expecting, but it shows only that consultations with stakeholders will take place in 2017 and 2018. That is far from a precise timeline.

As for the legislative amendments needed to correct subsection 21(4) and section 22 of the act, the minister’s response is only that this will be done when it becomes possible to amend the act. While, once again, we are far from having a clear answer, we can assume that the lack of precision on the timeline can be attributed to the authority cabinet has over bills. We could therefore send a letter to the Minister asking for a precise timeline, at least in terms of the regulatory amendments.

[English]

The Joint Chair (Mr. Albrecht): Does anyone want to suggest a clear deadline for a response? It seems like a fairly straightforward administrative correction, so I’m not sure why it would take until 2019.

Senator Stewart Olsen: Should we use the four months in all cases? I forget what we decided in the meeting before Christmas. If we have a set time, it might be wise to use a continuous one.

The other thing I was going to suggest, it would be really good — and perhaps you do this already, but I’m new, sorry — to have a calendar issued to us and kept by the clerk with the dates of when we are expecting a reply. You would just put on it the effluent reply and the reply from this on a certain date. It would be a lot easier just to tick that off and say we got it or didn’t get it.

Ms. Borkowski-Parent: We do that administratively. Wherever a letter goes out, we have a bring-forward system with a date. On that date, those files are all brought back on our respective desks, and we deal with them accordingly.

Whenever we receive a response, we prepare a briefing note for the committee. Then, it may take awhile before it gets to the agenda for the committee.

Senator Stewart Olsen: I just wanted a calendar that noted that we’re expecting a response back by such-and-such a date. It is just something for us to refer to. It would help me to know. You already have the information. I’m not saying we have to deal with it right away; I’m just saying we got a response.

Ms. Borkowski-Parent: Also, departments have been made aware last year that substantive responses are expected within four months or a letter will be sent from the joint chairs directly to the minister asking for a reply. That’s the backstop measure: If we don’t get what we need, then the letter gets straight to the minister. That’s usually a good incentive.

Senator Stewart Olsen: I’m not suggesting you’re not doing —

Ms. Borkowski-Parent: No, no.

Senator Stewart Olsen: I am suggesting it would be nice for me to see what we are expecting back, what we have dealt with and when we’re expecting it. Is that a possibility?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Mr. Albrecht): I think there could be a concern with the sheer volume of ones that are continuing on. We might have four or five pages of calendar at the front of each agenda.

Ms. Borkowski-Parent: There are around 450 files currently open.

Senator Stewart Olsen: I’m fine with seeing that. We are trying to look at overall volume and make things go faster and have a comprehensive look. So I would be fine with that. Perhaps not everybody would. But even if you put it online, we could check it.

The Joint Chair (Mr. Albrecht): Back to the question of a follow-up letter, I think we will ask for action. We need someone to suggest a date. Do we want to go with four months?

Mr. Oliver: This goes back to the committee getting shoved along and shoved along and something goes on for 10 years. I gather that we reached a point where we had a witness from the department come and present, so we have gone to the next step of escalation from letters. We went to ask for an interview. They came, made a commitment to take action and they did not take action. Now they are going back to another process step.

I need some advice. Is this another one we are punting out into the future, and it will sit out there and we will be dealing with it for another three or four years? Or is this a true correction and they’re just going through proper process?

Ms. Borkowski-Parent: Going back to the history of the file, this one is a little particular in that the committee sent a notice of disallowance first. We got a response from the minister saying she would object to the motion in the house, therefore defeating the disallowance report if it were to be tabled. In light of that, the committee decided to invite officials from the department.

At this point, what is new is that we finally got agreement to amend the act to resolve some outstanding questions, and there remains the regulatory amendments. It’s not clear why we’re on consultations for 2018. We don’t even have a firm time frame for the making of the amendments. All that is provided is that in 2018, there will be consultations. There is definitely a lack of firm commitment.

I would suggest writing back to the minister, maybe stating that those amendments should be resolved independently of that modernization initiative in the next year, as is the case for other files.

Mr. El-Khoury: I agree with writing to the minister to provide a clarification, but in case no action will be taken according to the wish of the committee, I suggest writing to the minister to come here and answer our question properly and give a reason why this file is not going forward.

The Joint Chair (Mr. Albrecht): Again, this seems fairly straightforward. Can we have a motion to have this resolved by the end of March, in two months? This one here should not take four months to be resolved.

Senator Stewart Olsen: Agreed. I so move.

The Joint Chair (Mr. Albrecht): End of March, at the latest?

Ms. Borkowski-Parent: End of March.

The Joint Chair (Mr. Albrecht): Thank you.

We will move on to Item 3 on our agenda.

SOR/2016-126 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS

(For text of documents, see Appendix C, p. )

Ms. Becklumb: Counsel identified four relatively minor issues in July 2016. The department agreed in September 2016 that three of the issues warrant amendments. They are as follows.

There are a few commas in the English version which need to be changed to decimal places, and in several places, a few words are missing from the French version. The department has promised to fix these issues in the next amendment process. That means of spring of this year.

The outstanding issue is described in item 2 of the letter from counsel dated July 12, 2016. It relates to a table, which you can find in the copy of the instrument appended at the end of your correspondence in your materials. For the English version, it starts on page 1483 and the French version starts on page 1484.

Midway down the page, you see a heading, Table 1, “Waterfowler Heritage Day and Open Seasons in Ontario.” This table conveys two different things. Column 2 conveys the Waterfowler Heritage Days. These are days when people who are under age 18 can hunt without a permit if they are accompanied by a licensed mentor.

Columns 3 to 6 set out the open season, and that’s the hunting season for people who are age 18 and older.

The issue raised is with footnote (a), which is on all of the four items in column 2. Footnote (a) states, “The Morning Dove season on only opens in the Central District and Southern District.” Counsel asked the department why it was necessary to set this out in a footnote when it’s already very clear, if you look in column 6, that there is no open season for mourning doves in the Hudson-James Bay District and the Northern District. Also, why is this footnote attached to column 2 when the open season is set out in columns 3 to 6?

The department’s explanation clarifies that in column 2 where it says there is no open season for mourning doves in two districts, it means there is no Waterfowler Heritage Day for mourning doves in those districts. The use of the words “open season” in column 2 is confusing because columns 3 to 6 also refers to “open season,” but it means something different in those columns.

Two amendments could make this table easier to understand at a glance. First, footnote (a) could be amended so that it doesn’t use the words “open season.” It could instead say “except for Mourning Doves” or “There is no Waterfowler Heritage Day for Mourning Doves.”

Second, the footnote could be removed from items 3 and 4 of column 2 so that it is clear that the exception applies only to the first two items, that is, the two districts where there is no Waterfowler Heritage Day for mourning doves.

In fact, the department has stated that it will be working with the Department of Justice to determine whether footnote (a) should be retained for items 3 and 4. The department might decide to clarify this issue, but a letter could be drafted to follow up with them in that regard.

Mr. Badawey: So moved.

The Joint Chair (Mr. Albrecht): Are we going to say “might” or ask them to do it? I think there is a general will that we ask them to move ahead. Very common sense suggestions in the notes. I would hope the department takes note of those comments and suggestions.

I think sometimes eyes from the outside can see things that those of us on the inside might miss. I think we’re in agreement with that.

Next is Item 4 on our agenda.

SOR/2017-120 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS AND REPEALING THE CANADA PENSION PLAN (SOCIAL INSURANCE NUMBERS) REGULATIONS

(For text of documents, see Appendix D, p. )

Ms. Becklumb: These regulations repealed some 2013 regulations for which we had a file of amendments waiting to be made. Accordingly, the amendments are now unnecessary and the 2013 file can be closed.

With regard to the new regulations, counsel identified only one issue. It relates to section 88, which states:

The Minister or the Minister of National Revenue may cause a social insurance number to be assigned . . . .

The question is: Who is this first minister?

The answer is available in the act, but it takes some work to find it. First a reader might look in subsection 2(1) of the regulations, which defines the term “minister” for various parts of the regulations but not for the part containing section 88. There is no definition of minister in the regulations that applies to this part. So the reader has to go back to the act to figure out who the minister is. But the definition section in the act doesn’t include a definition of minister.

So next, the reader has to go to the enabling provision in the act, which is section 101 in Part III. And just in front of that provision is section 91, where there a few definitions are set out. They apply only in Part III of the act. “Minister” is defined here in section 91 as the Minister of Employment and Social Development, so this is the minister for the purposes of section 88 of the regulations. It’s surprisingly difficult to find who this minister is for section 88.

The issue was raised with the department for their comment. The department responded that the definition is in section 91 of the act, it’s sufficient and no further amendments to the regulations are required.

The department is correct: The intended definition does apply in section 88 of the regulations. The question is whether it’s sufficiently clear.

On the one hand, the definition is hard to find, but on the other hand, members of the public are not likely to be looking for this definition, because it relates only to the internal workings of government.

The drafting is technically correct. In the past, the joint committee has generally taken the position that it’s unnecessary to repeat information in the regulations that is already in the enabling act.

Finally, the department is not inclined to make this amendment. So if members agree, we could accept the department’s response and close the file.

The Joint Chair (Mr. Albrecht): It’s like finding Waldo, though, when you’re looking for that minister.

Are we all in agreement to close that file?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Okay.

We will move on to Item 5.

SOR/2017-153 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (PHEASANT RUMP)

(For text of documents, see Appendix E, p. )

Ms. Borkowski-Parent: There has been a significant number of this type of order made over the past year or so to reflect the will of the First Nation to have elections governed by the rules of the new First Nations Elections Act rather than those of the Indian Act.

Under the First Nations Elections Act, the date of the first election must not be later than the day on which, but for the making of the order, the term of office of the chief and councillors would have expired. The requirement makes sense in order to avoid a gap in leadership.

In this case, according to the Indigenous and Northern Affairs Canada database, the term of office of the chief and three councillors was set to expire on July 31, 2017, yet the date of the first election was fixed in the order to September 15, 2017, which meant a period of six weeks without leadership.

After counsel inquired to the department as to how that could be, the response was, in short, that the date in the database was wrong. The department provided an explanation for the confusion, stating that September 15, 2017, was the date of expiry of the chief and councillors’ mandate based on that First Nation’s by-law.

On that basis, it would appear that everything is good on the legal front. You’ll know, however, that this file is under the heading “Reply Satisfactory?” This instrument would have had to go through a number of players before the order was made, including the Department of Justice itself, yet it appears that no one flagged that discrepancy between publicly available data and the date in the order before counsel examined it.

The Joint Chair (Mr. Albrecht): Is there any response? Legally satisfactory, but in terms of public relations, poor. Are there any other comments?

Ms. Borkowski-Parent: The committee could close the file.

The Joint Chair (Mr. Albrecht): Do we want to close the file, or do we want to add a note of disapproval by saying so many eyes should be better at following up and making sure these are corrected?

Mr. Oliver: Close the file.

The Joint Chair (Mr. Albrecht): All right.

Next is Item 6 on our agenda.

SOR/2002-309 — ORDERS MADE BY BOARDS AND AGENCIES UNDER THE AGRICULTURAL PRODUCTS MARKETING ACT

(For text of documents, see Appendix F, p. )

Ms. Borkowski-Parent: For the benefit of new members, I will go through a bit of history on this file.

Agriculture is a shared competence between the federal for interprovincial and international trade of agricultural products, and the provinces for intraprovincial trade. In order to avoid two different fee structures depending on the destination of the product, the federal has delegated to provincial commodity boards the authority to impose fees and levies on producers.

In order to collect a levy, the provincial commodity boards have to first make a levy order that states the rate of the levies. The levy order should also be updated every time the commodity board increases its levies.

It became apparent to counsel a while back that some levy orders had not been updated in decades and others were never actually made. All the while, some commodity boards were collecting levies on products destined to international or interprovincial trade without authority.

The organization overseeing the boards, the Farm Products Council, failed to address these issues in an acceptable time frame. After some significant delay, the then-President of the Farm Products Council was called to appear before the committee to explain the state of this file. That appearance did not bring satisfaction to members.

The then-Deputy Minister of Agriculture and Agri-Food Canada was called to appear before the committee at its meeting of February 16, 2017. It had the benefit of providing, for the first time in nine years, exact numbers on the orders that were in need of amendment.

The deputy minister also committed to provide an update at the end of May to apprise the committee of the work that had been done. You have before you that update, dated May 19, 2017. In it, the department states that drafting instructions were sent relating to seven orders, approval by boards was required on six others, and one file proved more complex and required some further work. That’s more progress over the course of six months than had happened in the past decade.

On these points, an update could be sought on the state of these 14 files.

There is one thing that remains unclear from that update: the department’s plan with regard to the long-term regulatory modernization of their scheme. The modernization is required in light of the fact that things were allowed to remain unchecked for so long.

At some point in the recent past, the Farm Products Council had mentioned a possibility of amending all instruments to remove the words “by order.” This would, according to the magic works theory, have the effect of transforming those orders from statutory instruments to other instruments that are not subject to the regulatory process.

The magic word theory is the Department of Justice interpretation of the definition of statutory instruments, and it requires certain words to be present in the enabling provision in order for it to qualify as a statutory instrument. The committee never agreed to that position, and it has maintained over the years that an instrument should be qualified in function of its purpose.

Removing the magic words would mean, in turn, no examination, no registration and no publication of the levy orders. The committee expressed some concern at the lack of transparency and accountability this would entail. Members might want to ask which form this modernization might take and how long it will take before completion.

The Joint Chair (Mr. Albrecht): Thank you.

These are the two big questions in terms of our communication back to the groups: What is the modernization plan, and what is their timeline in order to have that completed? Also, a response to those two questions within — I’ll let you fill in the blanks.

Mr. El-Khoury: One Andrea Lyon, the Deputy Minister of Agriculture and Agri-Food, appeared. She promised to send a report explaining everything before the month of June. Did we receive such from her?

Ms. Borkowski-Parent: Yes, that’s the letter dated May 19. That’s the latest update we received from the department.

Mr. El-Khoury: Okay, thank you.

The Joint Chair (Mr. Albrecht): So we’re in agreement in asking counsel to write a letter requesting the definition or an outline as to what the modernization would look like and a timeline in which it would be completed. But we’re looking for a response to that within two months. That’s the suggestion I’m hearing. The end of March?

The Joint Chair (Senator Day): They should know.

The Joint Chair (Mr. Albrecht): I see nodding. We’re all in agreement.

Hopefully the timeline won’t project out 10 more years, even though we’ll have the answer in two months.

[Translation]

SOR/2008-135 — ORDER AMENDING SCHEDULE 1 TO THE ACCESS TO INFORMATION ACT

SOR/2008-136 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

(For text of documents, see appendix G, p. )

Ms. Becklumb: The issue on these two files is the fact that the enabling provision authorizes the Governor-in- Council to add only the name of a federal government department or agency to the relevant schedule. But the goal of the orders is to delete the names of organizations from those schedules.

To solve that problem, the government introduced Bill C-58, which is intended to amend the two enabling acts in order to retroactively validate the deletions in question and the many other unjustified deletions that have been done since 1998. The bill also allows the relevant enabling provisions to be amended so that, in the future, the Governor-in-Council will have the authority to add, delete and update the standards in the schedules. That would prevent the problem from occurring again. Bill C-58 was passed in the House of Commons and is now in the Senate.

[English]

The Joint Chair (Mr. Albrecht): It looks like there is a solution in the very near future that will deal with these issues. Is there agreement by the committee to close this file as well, pending the outcome of follow-up to be 100 per cent sure the Senate does its work and passes this bill?

Hon. Members: Agreed.

The Joint Chair (Senator Day): I would like to thank Mr. Albrecht, the joint chair, for leading us through the difficult files. Now we will move on to the others.

[Translation]

C.R.C. c.1486 — SMALL FISHING VESSEL INSPECTION REGULATIONS

(For text of documents, see Appendix H, p. )

Ms. Becklumb: Legal counsel raised 21 issues with these regulations. They have all been settled with the exception of one that is still pending. This is about the fact that the regulations incorporate by reference a Transport Canada document, TP 127, which deals with the electrical standards required on ships. The incorporated document contains an obsolete reference to the Board of Steamship Inspection, which no longer exists. The incorporated document must therefore be updated.

Ten years ago, legal counsel advised the department of this problem. The department promised to amend the incorporated document to remove all reference to the board in question. However, the implementation date for the change has been pushed back on multiple occasions.

Currently, the department no longer intends to update the incorporated document. Instead, it intends to replace the regulations in their entirety. The new regulations would no longer refer to document TP 127, so that it will no longer be necessary to amend it.

At the outset, the target date for publishing the new regulations was set in the winter of 2017, but, in its most recent letter, the department indicates that the plan has been delayed. It now anticipates publishing the new draft regulations in the summer of 2019.

It should be noted that the requested change is minor and technical. It involves an administrative document that is entirely Transport Canada’s responsibility. They could change it very quickly without consultation, if they wanted to do so.

The Joint Chair (Senator Day): Questions? Comments?

Ms. Becklumb: Could we perhaps ask Transport Canada to change it immediately?

The Joint Chair (Senator Day): In 2019?

Ms. Becklumb: To change the regulations, not to update the document that is incorporated by reference.

The Joint Chair (Senator Day): What would the option be?

[English]

Ms. Borkowski-Parent: Penny came up with a great analogy: Sometimes we raise issues and they are like stains on a carpet. A lot of times we get the response saying, “We won’t use baking soda to clean the spot because we will replace the carpet in 10 years.” This is one instance where it is within their control. They don’t have to go through the regulatory process; just remove that provision that refers to a board that no longer exists.

The response we got was, “Well, we’re repealing the regulations in the next two or three years. We will replace them, and then we won’t refer to that document with the obsolete name of the board.” At some point, sometimes you just have to clean your carpet.

The Joint Chair (Senator Day): Do we ask them to clean the carpet, or do we wait for the new one in two years? That’s prepublication only.

Ms. Borkowski-Parent: Yes.

The Joint Chair (Senator Day): So it’s not going to get resolved --

Ms. Borkowski-Parent: In the next five.

The Joint Chair (Senator Day): -- in two years. That’s questionable progress.

The Joint Chair (Mr. Albrecht): I move we ask for this to be removed before the small fishing vessel season opens this year in May. We ask them to remove it by May. If we need to, we’ll buy them some baking soda.

The Joint Chair (Senator Day): Any objection to that?

Senator Stewart Olsen: Good.

The Joint Chair (Senator Day): I’ll treat that as consensus, then. Notwithstanding their future plans, which may not come about, we’ll be pleased to see some early progress.

Next is Item 9 on our agenda.

[Translation]

SOR/96-423 — PATENT RULES

SOR/2003-208 — RULES AMENDING THE PATENT RULES

(For text of documents, see Appendix I, p. )

Ms. Borkowski-Parent: One point is still pending in this file. It deals with the lack of enabling power for sections 98 and 152 of the rules. These impose stricter conditions than those set out in the act. The lack of enabling power for those provisions was first raised in 2006. Since 2010, the department has been informing the committee that amendments are imminent, only to then push back its timeline by one or two years. So the latest news is that the amendments that were supposed to happen in 2017 have been postponed again to 2018-19. These provisions impose multiple fees, although the act provides for one only, and sets deadlines for certain actions to be taken. Without these provisions, the system would still continue to function on the basis of the provisions in the legislation.

Given that the committee is seeking to strengthen its actions in response to the sloppiness of some departments, that the lack of enabling power is one of the most serious obstacles to the committee’s criteria, and that the impact of any potential repeal would basically be limited, I recommend that the committee send the department a notice of disallowance on sections 98 and 152.

Mr. Dusseault: I agree with our counsel’s proposal. In the files we are dealing with today, this is the most serious, in my opinion, given that it exceeds the powers provided for in the act. I was going to propose hearing the opinion of witnesses, but the notice of disallowance would perhaps allow things to move forward. However, it would be included in another step, as we have seen in another file today. The notice of disallowance moved things forward significantly. I hope that will be the case for this file too.

[English]

The Joint Chair (Senator Day): Is everybody in agreement?

Hon. Members: Agreed.

The Joint Chair (Senator Day): We’ll proceed in that direction, then. Thank you very much.

It will be interesting to know if we could see if there is any impact on the industry. All we’re looking at is timeline, but a late timeline could impact industry, so hopefully witnesses can help us with that.

The Joint Chair (Mr. Albrecht): What about a disallowance?

Ms. Borkowski-Parent: As far as a disallowance goes on these provisions, the scheme still there in the act. The department would not be entitled to charge fees more than once, as is provided in the act, if provisions were to be repealed or disallowed in the future. That’s what I meant by limited impact. There is still a scheme under the act where things could function. The department just couldn’t charge multiple fees when the act provided for one.

The Joint Chair (Senator Day): When there is a disallowance notice from us, the department has an opportunity to come back to us with an explanation at that time.

Ms. Borkowski-Parent: Correct. The notice of disallowance puts the department on notice that after 30 days the committee might table the report asking for the repeal of these two provisions. They have 30 days to either fix the problem or come back to the committee.

The Joint Chair (Senator Day): I expect they will be coming back. I look forward to hearing from them.

Next is Item 10.

SOR/2007-229 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

(For text of documents, see Appendix J, p. )

Ms. Borkowski-Parent: One point remains on this file, and it deals with the minister’s discretion in subsection 404.04(9) of the regulations, which relates to the period of validity of an aviation document, such as a pilot licence, following a mandatory physician evaluation. That provision states that the minister may endorse a shorter validity period on a medical certificate if a physician recommends the shorter validity period in their medical report.

The word “may” indicates discretionary power, which is not allowed in delegated legislation, absent clear authority in the enabling act, which is lacking in this case.

Furthermore, discretionary decisions potentially entail a different standard of review on judicial review.

Most important, it is baffling that the department would purposefully ignore the medical advice of a physician on a candidate’s fitness to fly. Whenever there is a discretionary power of that kind, the question we will ask is, “Why do you need that discretion?” Sometimes there is a valid answer, but none has been provided in this case.

We received the letter from Transport Canada in September, updating the committee on most of the 20 files pertaining to the Canadian Aviation Regulations. The update states that this issue is part of the substantive issues that will be dealt with in the next two or three years.

In sum, given that this point was raised in 2011, it will have taken the department six years to study the issue. It will take at least another two years, probably more if past performance is indicative of future performance, to finally fix the provision.

Counsel, having already provided alternate wording that would remove the minister’s discretion, it’s hard to conceive of what is taking so long. Given that, I would also recommend that the committee send a notice of disallowance regarding subsection 404.04(9).

Senator Stewart Olsen: Is it possible that the phrase “the minister may” is the result of quite a few complaints from pilots regarding a physician having caused them to not be able to fly? I’m questioning this just a bit. I never mind the minister having discretion to override something if there is a good reason why. In this case, it’s the word of one doctor, it looks like, who signs off. Many times I have heard and seen pilots or people trying to overturn that one doctor, because it essentially kills their ability to fly.

Ms. Borkowski-Parent: In this instance, I would say that having the ministerial discretion is to the detriment of people, because the standard of review in a judicial review is higher than it would be had there not been any discretion.

Senator Stewart Olsen: Okay, thank you very much.

Mr. Oliver: I want to make sure of something. This is more about committee process heading to the step that you have recommended.

In the last report, it was different, because the department was in agreement with the committee’s recommendation. They just weren’t doing anything about it; they dragged their heels. There was no disagreement, though.

In this one, does the department disagree still? My sense is if they are disagreeing with us, then we need to take the necessary step of inviting witnesses to have that conversation before we go to disallowance. But if they are in agreement and they are just not doing anything, then I support the disallowance.

Ms. Borkowski-Parent: It took six years to get to that analysis, but their latest letter says they will amend that provision in the next two or three years.

Mr. Oliver: Okay.

The Joint Chair (Senator Day): The question is whether we go the full step towards saying this should be disallowed because you’re just not taking this seriously — it has been six years, plus two or three years — or do we say two or three years is not satisfactory and get on with it in three months or whatever? Notice of disallowance or timeline?

Senator Stewart Olsen: I’m supportive of counsel’s answer to my question. So, yes, disallowance.

The Joint Chair (Senator Day): Consensus that a notice of disallowance should go out?

Mr. Benzen: I agree.

The Joint Chair (Senator Day): We’ll take that action.

Next is Item 11 on our agenda.

SOR/2011-236 — REGULATIONS AMENDING THE CRIMINAL RECORDS REGULATIONS

(For text of documents, see Appendix K, p. )

Ms. Becklumb: Three technical issues were identified in 2013. One is an English-French discrepancy. One is a minor word change needed in the French version to make it consistent with the act.

The third amendment stems from a change to the Criminal Records Act, which was made in 2012. The act was amended to replace the term “pardon” with the new term “record suspension.” The regulations need to be updated to use the new term “records suspension.”

It took the department two years to respond to the substance of counsel’s letter. In 2015, they promised to fix the problem with the outdated term “pardon” being used. At that point, they anticipated that the amendment should be drafted by the end of 2015. That didn’t happen. But in January 2016, the department did agree to make the other two amendments as well. However, subsequently, in July 2016, the department advised that the promised amendments were now part of a greater review of the criminal justice system.

The committee last reviewed this file on June 15, 2017, and decided that the amendment should be made within a year of that date. This was conveyed to the department.

In its latest response dated August 1, 2017, the department does not acknowledge the committee’s expectation that the amendments are to be made by this June. Rather, the department states that it is “premature to open the regulations.”

They are going to first complete their review of the enabling act and, after that, they will make any necessary changes to the regulations. The department did not provide a timeline for doing this work.

Given that the department has acknowledged that the amendments are technical, the committee could urge the minister to consider using the MARs program, the Miscellaneous Amendments Regulations to fix these issues in short order.

The Joint Chair (Senator Day): Presumably they are well aware of that but would rather wait for the overall review of the criminal justice system, which will be anytime soon, I’m sure.

Is the recommendation that we tell them about the Miscellaneous Amendments Regulations?

Mr. Badawey: Counsel could send a letter that actually articulates what was mentioned and see what the response is, and then we can move from there.

Ms. Becklumb: That’s a letter to the minister?

The Joint Chair (Senator Day): Mr. Badawey, a letter to the minister or to the department?

Mr. Badawey: Yes, to the minister.

The Joint Chair (Senator Day): Are we all in agreement on that?

The Joint Chair (Mr. Albrecht): I’m in agreement with that as the first step, but I do think we need to have stronger expectations, possibly consider even publicly tabling this as another example of lack of progress on the part of the department. Failing that, disallowance.

This has gone on too long, in my opinion. I’m agreeing with the first step, but if we don’t hear from them within a short time —

The Joint Chair (Senator Day): Do you want build in a second step without coming back to this committee?

Mr. Badawey: Let’s wait for the response.

The Joint Chair (Senator Day): We’ll do that. There is consensus on that. We’ll take that step.

We’ll go on to Item 12.

[Translation]

SOR/2013—117 ― REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE MOTOR VEHICLE SAFETY ACT

(For text of documents, see Appendix L, p. )

Ms. Becklumb: Four issues were raised in 2013, three of which have been solved. The remaining one concerns stickers and labels on booster seats. These stickers and labels must explain “the primary consequences of not following the warnings.” Legal counsel asked why they wrote “primary consequences,” instead of referring to death or serious injury, because that is what they seem to be referring to.

In 2014, the department recognized this issue. In 2016, the department was still studying the issue. In May 2017, the department, in light of a recent report from the Auditor General, indicated that it was updating its process for amending regulations to include broader consultations. Consequently, the amendments cannot be made until the planned consultations have concluded. These consultations should take place in late 2017 or early 2018. The letter does not specify when the changes will be made.

[English]

The Joint Chair (Senator Day): What is the recommended course of action?

Ms. Becklumb: We could ask for an update on how they are doing.

Mr. Badawey: So moved.

The Joint Chair (Senator Day): Mr. Badawey moved that we ask for an update. Are we all in agreement?

There is consensus, so we’ll go ahead and keep an eye on that one.

We will move on to Item 13 on our agenda.

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 M, p. )

Ms. Borkowski-Parent: Regulations established a process by which exporters apply for a softwood lumber products export allocation and permit.

Four issues were raised with the export allocations Regulations. The purpose of one provision seemed unclear. The authority for two others was questioned. It was suggested that one other could be seen to infringe on the right against self-incrimination. The first issue was also found in the permits regulations.

Since the expiry of the 2006 Softwood Lumber Agreement, the work on these files came to a halt because, among other things, export allocations are no longer issued under the export allocations regulations. Permits for softwood lumber exports, however, continue to be required under the export permits regulations.

The latest update from the department indicates that successful conclusion of the Softwood Lumber Agreement would result in significant work on the regulations. But I think it’s fair to read between the lines that amendments won’t be done until then.

Up to now, the committee gave latitude to the department in these files, considering the international negotiations. It seems unlikely at this point that a softwood agreement will be concluded in the very near future.

That being the case, I would suggest putting these files on hold until a new softwood agreement is put in place. The committee could also decide to put a backstop to the indefinite hold and urge the department to amend or repeal its regulation if an agreement is not reached in X number of years, regardless of the state of international negotiations.

The Joint Chair (Senator Day): Is there any commentary? Is there a recommendation that we keep an eye on this file to see what happens with respect to the negotiations? Softwood lumber seems a logical step to take. Are we in agreement that we do that, see what happens, whether these are pertinent or not afterwards?

Hon. Members: Agreed.

The Joint Chair (Senator Day): We will move on to Item 13b.

[Translation]

SOR/2013-82 H― SOCIAL INSURANCE NUMBER REGULATIONS

(For text of documents, see Appendix N, p. )

Ms. Borkowski-Parent: So, 11 issues were raised in the initial 2013 letter from legal counsel. Three of them are about vague and subjective regulatory requirements, two are about discretionary power in the absence of enabling power, one creates an infraction in the absence of enabling power, and four deal with inconsistencies or weaknesses in the regulatory schemes. Please note that one of the issues raised concerned a provision that seemed to require applicants to violate a provision of the act.

Furthermore, an issue was raised about the absence of a mechanism to issue a social insurance number to a person who is unable to provide all the information required in section 2: the applicant’s name, place and date of birth, as well as the names of their father and their mother. For this file, the committee had to correct the department’s perception that it could fill the gaps in the regulations with simple administrative policies.

That being said, the department now plans to introduce amendments to resolve all the issues raised. These amendments are expected at the end of the 2017-18 financial year, with the exception of the amendments to subsection 3(4) of the regulations, which deals with issuing a social insurance number without the applicant’s signature. This provision will be discussed in broader consultations, and will consequently be amended at a later date. In summary, if the committee is satisfied with this commitment, counsel could wait for the amendments to be made in, hopefully, the next two months, and follow up on subsection 3(4) as required.

[English]

The Joint Chair (Senator Day): Is it satisfactory to monitor to see if it’s done in the time provided? We’ll also see what they have to say with respect to the signature aspect. Is it agreed? That’s the course we’ll take on that one.

Hon. Members: Agreed.

The Joint Chair (Senator Day): Next are Items 14 and 15 under the heading “Action Taken.”

SOR/2016-258 — REGULATIONS AMENDING THE WAGE EARNER PROTECTION PROGRAM REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix O, p. )

SOR/2017-149 — ORDER 2017-87-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2017-150 — ORDER 2017-112-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

(For text of documents, see Appendix P, p. )

Ms. Borkowski-Parent: Regarding these two regulations, some drafting issues were corrected, and therefore those files can be closed.

SOR/2017-74 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SOR/2017-80 — ORDER AMENDING SCHEDULES I AND IV TO THE WEIGHTS AND MEASURES ACT

SOR/2017-81 — REGULATIONS AMENDING THE OFFICE OF THE GOVERNOR GENERAL'S SECRETARY EMPLOYMENT REGULATIONS

SOR/2017-92 — ORDER AMENDING THE ORDER FIXING THE DAY FOR THE PURPOSES OF SECTION 130, 133 AND 135 OF THE ECONOMIC ACTION PLAN 2014 ACT, NO. 1

SOR/2017-95 — ORDER AMENDING THE SCHEDULE TO THE EXPORT AND IMPORT OF ROUGH DIAMONDS ACT

SOR/2017-102 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (OROMOCTO)

SOR/2017-113 — ORDER ADDING A TOXIC SUBSTANCE TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

SOR/2017-125 – REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

SOR/2017-128 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS

SOR/2017-129 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS

SOR/2017-130 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2017-135 — REGULATIONS REPEALING CERTAIN REGULATIONS MADE UNDER THE ARCTIC WATERS POLLUTION PREVENTION ACT (MISCELLANEOUS PROGRAM)

SOR/2017-138 — ORDER AMENDING THE AREA CONTROL LIST

SOR/2017-146 — ORDER AUTHORIZING THE ISSUE OF A ONE-DOLLAR CIRCULATION COIN SPECIFYING THE CHARACTERISTICS AND DETERMINING THE DESIGN

SOR/2017-148 — ORDER 2017-66-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2017-151 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SAKIMAY)

SOR/2017-152 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (SAKIMAY)

SOR/2017-155 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (ONION LAKE)

SOR/2017-164 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (HALFWAY RIVER)

SOR/2017-170 — REGULATIONS SPECIFYING TERRITORIES AND INDICATING INTERNATIONAL REGISTERS

Ms. Borkowski-Parent: There are also 20 files under the heading “Statutory Instruments Without Comment.” These files have been examined by the committee’s counsel and been found to meet the 13 criteria established by the committee.

For the benefit of new members, the text of the regulations is not reproduced in the materials that are distributed to you, but we have hard copies at the meeting should you want to consult them.

The next meeting is February 15. I will not be present, but you will be in good hands with my colleagues Sean and Cynthia.

The Joint Chair (Senator Day): We wish you well and look forward to your speedy return.

Colleagues, that concludes the meeting today. Thank you very much.

(The committee adjourned.)