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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 42 - Evidence - November 1, 2018

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OTTAWA, Thursday, November 1, 2018

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 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): Welcome to our new members and those who are filling in.

DISCUSSION OF APPEARANCE OF WITNESSES FROM GLOBAL AFFAIRS CANADA

The Joint Chair (Mr. Albrecht): Our first item on the agenda this morning is the discussion regarding the possibility of having witnesses from Global Affairs Canada appear before us. I have the letters from June 12 and June 18 that have been sent to the minister. We've had no response, so there are a number of matters within Item No. 1 and I will ask counsel to walk us through that.

Cynthia Kirkby, Acting General Counsel to the Committee: This item is being presented this morning to see how members wish to proceed.

In June, the committee decided to invite witnesses from Global Affairs Canada to appear in relation to various United Nations and Special Economic Measures Regulations. The department was advised that the scope of their appearance would depend on whether they provided a satisfactory reply on various issues over the summer. To date, no reply at all has been received, although apparently a fulsome answer is imminent.

In addition, the department advised that when its witnesses appear before the committee, they wish to appear in camera. This is very unusual, so an explanation was sought. Their explanation states, in its entirety, that the main objective of the request to go in camera is "to allow more detailed answers on some points relating to how GAC administers sanctions and why GAC uses them."

It was pointed out to the department that this does not provide much by way of rationale for their unusual request and, further, that it is unclear how this relates to the issues for which the witnesses would be appearing. No additional information has been provided since then.

This file is being brought back to committee to seek members' guidance on two points. First, are members inclined to grant Global Affairs Canada's request to allow the witnesses to appear in camera? And, second, are members inclined to wait for the substantive reply that they had expected over this past summer, which might narrow the issues for which witnesses would be appearing, or should their appearance instead be expected on all points?

The Joint Chair (Mr. Albrecht): First of all, we've had this promise that a reply is imminent. What does that mean when this letter arrived on their desk in June and here we are in November? There is the question of their appearing in camera or waiting until we get a response to the request that they say is imminent and then proceeding from there.

Mr. Miller: On that note, Mr. Chair, I would suggest that we use something that's practised often in municipal councils: We have them here in public, and should an issue come up that we feel is appropriate at the time, the committee can make the decision to go into camera for a few minutes. I'm sure that most of the information they're going to tell us probably should be in public. If something does come up, I think that's a decision that could be made at that time. That is just a suggestion.

The Joint Chair (Mr. Albrecht): Any further comments? Is there any discussion regarding the possibility of giving them another week to respond first in order to narrow the field so that we have a better idea of the outstanding issues?

Mr. Scarpaleggia: It's probably a good idea to give them a hard deadline to respond, and make it as short as we want. The idea is not to let them off the hook. I just find that when I get a reply saying a response imminent, that is frustrating to me because we don't know what "imminent" means. It's an elastic term. Could we nail it down and ask them, again, to be a little more specific in terms of the reasons for wanting to go in camera when they appear, if they appear?

Mr. El-Khoury: I would suggest, due to the fact that we don't sit next week, that we give them a deadline two weeks from now. Next week we are not here. A maximum of two weeks.

The Joint Chair (Mr. Albrecht): We're sitting next week.

The Joint Chair (Senator Day): We are sitting next week.

Mr. El-Khoury: I'm sorry. By the end of next week.

The Joint Chair (Mr. Albrecht): I want to be sure that our counsel is comfortable. If we do give them a week, does that give counsel enough time to prepare a response for the committee?

Ms. Kirkby: I want to clarify first that "imminent" was my language, not theirs. They have been telling us it's in the works, that it is expected shortly.

The Joint Chair (Mr. Albrecht): That's the same difference.

Ms. Kirkby: We had asked for a response and gave them the deadline of before the end of summer, which was not met. The additional consideration is that we have Justice witnesses appearing next week, then we have two additional meetings before the holidays. We have one on November 22 and one on December 6. If we are going to hear from them on one of those dates, it would be helpful to have that clearly decided before we say, "This is when we expect results."

The Joint Chair (Mr. Albrecht): Is someone prepared to make a motion that we expect a response by November 10? Mr. El-Khoury?

Failing that, we will proceed with witnesses. We may still go with witnesses after that letter, depending on their response.

Is that clear enough for you? If we have the letter by November 10, then we, as a committee, will have the decision to make on November 22. Is that the next date after that?

Ms. Kirkby: We have a meeting on November 22. If we bring the letter back on November 22, that would only leave the December 6 meeting for them to appear.

The Joint Chair (Mr. Albrecht): Is there a better time?

Ms. Kirkby: No.

Mr. Shields: Can we make a reference to the next step we will take if we do not get a satisfactory answer by that date?

The Joint Chair (Senator Day): That depends on what happens in the letter.

Ms. Kirkby: If we're calling them as witnesses on December 6 in any event, that's probably the next step, that we will be hearing from them.

The Joint Chair (Mr. Albrecht): Could we do both? We want a response by November 10 and we will book them in as witnesses December 6. What we're asking them to testify to on December 6 will depend on the response in the letter.

Mr. Scarpaleggia: This is more or less in line with what you're saying, Mr. Chair: We expect a response by a certain date and we're considering having them appear on December 6.

The Joint Chair (Mr. Albrecht): As well.

Any opposition to that, Mr. Miller?

Mr. Miller: There's no use giving them a deadline if you're not going to enforce it. Just from your comments, Mr. Chair, you indicated that they were to report by the end of the summer and they didn't, so what are the consequences?

I think that it's very appropriate that this is the new deadline and these are the consequences.

The Joint Chair (Mr. Albrecht): Okay, I see general agreement. If there's any disagreement, please indicate so now. If not, we're going to proceed in that fashion. Thank you.

The Joint Chair (Senator Day): As an amendment to that, they haven't answered our correspondence, so I think we have to be a bit strong on this and say: "Listen, we wrote to you and expected to hear from you before the end of the summer; we've heard nothing, so we're going to have to take some serious steps here." Can you put a sort of serious note on the bottom?

Ms. Kirkby: They have been in contact with us informally to let us know when things are delayed. I think a large part of Global Affairs' work over the summer was on a different file, which delayed the approval process, so I have some understanding.

The Joint Chair (Senator Day): I find it almost offensive that we don't even receive a reply.

The Joint Chair (Mr. Albrecht): Just to clarify, we'll expect a response by November 10. The letter will go over with the signature of both chairmen or your signature? We wrote last time. Let's not let them off the hook. Let's make the co-chairs the signatories to the letter.

SOR/2015-169 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

(For text of documents, see Appendix A, p. 42A:1.)

Shawn Abel, Counsel to the Committee: This instrument repealed a transitional provision in a previous instrument that amended the Patented Medicines (Notice of Compliance) Regulations. The committee had objected to the transitional provision as being ultra vires, and therefore its repeal technically resolved the committee's concern.

However, this was the second time the committee had confronted a transitional provision being used as part of amendments to these regulations, where the provision was retroactive or retrospective, and therefore not authorized by the Patent Act. It seemed clear that prior to the enactment of this latest transitional provision, there could be no question that the department was already aware that this approach was unauthorized.

Furthermore, the provision was drafted oddly in what seemed to be an attempt to conceal its retrospective nature. In addition to that, the department's arguments to the committee dramatically misstated the findings of the Federal Court in respect of this transitional provision.

Finally, the committee had noted that concerns regarding this provision were raised a mere four months after it had been enacted, and yet the provision was not repealed until two years after it had been enacted. By that point, its effect was spent. All ongoing applications to which this transitional provision had applied were completed. Repealing the provision at that point was too late to prevent its unlawful application to any ongoing case.

The committee had considered from these facts that the department appeared to have acted in bad faith. Members were therefore quite dissatisfied with this state of affairs. The chairs were asked to convey the gravity of the committee's concerns to the Minister of Innovation.

Members will see in the record of correspondence that a chase-up letter was sent by the co-chairs in February 2018, four months after the initial letter. A reply by the department had actually been prepared in December, as can be seen on the date stamp on the department's letter. For reasons unknown, this letter was not received by the committee's secretariat. But once this was discovered, a second copy was provided on February 21.

Members may note at first glance that the reply comes from the department on the minister's behalf, rather than from the minister directly. Evidently, the committee's attempt to alert the minister to actions taken by the department in apparent bad faith did not have a strong impact.

As it is, the department's response emphasizes that it takes very seriously the exercise of delegated legislation-making powers, and has endeavoured to use those powers within the bounds of delegated authority and based on sound legal reasoning. The reply contends that those involved have, in good faith, endeavoured to ensure the regulations were enacted in a manner consistent with and respecting the regulatory power and prior jurisprudence concerning this matter.

Although the joint chairs' letter set out again the full reasons for the committee's view, the department's reply does not provide any further explanations on how this stated commitment to observing the bounds of delegated authority and prior jurisprudence could be squared with what was actually done here.

The department states that it consulted widely with experts before enacting the transitional provision. Is it possible that no one recognized the retrospective nature of that provision, even though at the same time the Regulatory Impact Analysis Statement directly stated that it was to apply the new law to pre-existing applications?

Is it possible that the department failed to recognize that seeking to apply new law to pre-existing applications was unlawful, despite the Federal Court of Appeal directly stating as much in 2011, and the joint committee previously drawing the department's attention to that concern?

Is it possible that the transitional provision was worded in such an odd manner as if to conceal its retrospective nature for no reason whatsoever?

Is it possible that the department accidentally mischaracterized the relevant Federal Court case considering this provision to state the exact opposite of what the judge actually wrote?

If the department is taken at its word, this would seem to be a number of fairly unlikely but very consequential mistakes that all just happened to reinforce the department's position.

I will note that the latest set of amendments, which repealed the transitional provision, did not include any new transitional provisions that stray into retrospective or retroactive territory. The legal issue, at least, seems to be resolved for now.

However, members will need to decide exactly what the department's assertions are worth and if any further action seems warranted.

The Joint Chair (Mr. Albrecht): It again seems like a situation similar to the last one where our counsel has been ignored. I had the question about the two dates on the one letter, so the December 5 date was a date they drafted it, and you didn't receive it until February 21 this year.

Again, it seems like not a very acceptable practice.

Committee members, apparently the legality of it is a moot point now; it indicates a very unsatisfactory application of procedure within the department. What steps do we want to take?

Is there a step that counsel would have to suggest? One of the points of actions in our principal powers is to table a report. This isn't going to have any effect on the current legislation, but is it a consideration to table a report to draw attention to the poor activity here?

Mr. Abel: At this point, the committee's options are limited. It attempted to draw the matter to the minister's attention. The reply we received back was from the department. A report is possible. The committee could consider inviting witnesses, although since there's nothing to resolve at this point, I don't know if that would achieve much.

The provision has been repealed. There's very little the committee can do often find other ways to express its displeasure.

The Joint Chair (Mr. Albrecht): That's my question. Is tabling a report in Parliament one way to express our displeasure and draw attention to this unacceptable result?

I shouldn't preclude what the committee wants to do. Do you want to leave it lay? It's up to the committee.

Mr. Scarpaleggia: Maybe there's a way to bring it to their attention. For our own satisfaction, we should write to them and say we found the circumstances around the way the department dealt with this matter curious and disappointing. At least it will be on the record that we're not pleased.

I'm not sure we need to bring this to the house necessarily. What we want to do is express our displeasure because we're frustrated.

The Joint Chair (Mr. Albrecht): One of the concerns, Mr. Scarpaleggia, is that we did express our displeasure to the minister directly and we got a response from the department. That's a very troubling response, to me. At the very least, we need to be 100 per cent sure the minister actually is aware of our concerns.

Mr. Scarpaleggia: I agree. In fact, that's a good point, chair. I think, when we write to the minister again, we should stipulate that we expect the response from the minister, not from the department.

The Joint Chair (Mr. Albrecht): Acknowledging the department's —

Mr. Scarpaleggia: The last time we wrote to the minister, we got an answer from the department. In this case, we expect an answer from the minister.

The Joint Chair (Mr. Albrecht): An acknowledgment.

Mr. Miller: That's the very thing that I wanted to speak to. There's a good chance — and I wouldn't be surprised — that the minister isn't even aware of that letter.

I would suggest exactly what Francis is saying: draft a letter. But I would suggest, Mr. Chair, that since you sit on the house side, you personally hand a copy of that letter to the minister. I do that on a lot of files that I know will get buried if I don't. I hand those letters directly to the minister and usually I get some action.

The Joint Chair (Mr. Albrecht): I would suggest, if do I that, that I do both. I've also had the experience where I handed the letter to the minister and it got lost in all the papers he or she received on that day on their desk. We would do both.

Mr. Miller: I didn't mean just that. I meant both, of course.

The Joint Chair (Mr. Albrecht): Is there general agreement?And we would request a response within a very short timeline, by mid-November at the very latest.

The Joint Chair (Senator Day): What type of response, Mr. Chair, do you anticipate? What are we looking for, since it has been resolved, in effect?

The Joint Chair (Mr. Albrecht): From my point of view, and I've heard this generally expressed, we want an acknowledgment that this was unacceptable and that it will not happen in the future. The letters that are going to the minister must be seen by the minister and responded to by the minister.

The Joint Chair (Senator Day): So you want them to?

The Joint Chair (Mr. Albrecht): Acknowledge it. It's an acknowledgment.

The Joint Chair (Senator Day): Admit that they did something we didn't like.

The Joint Chair (Mr. Albrecht): And a commitment to do better.

Are we all in agreement with that? I see general agreement. So ordered.

SOR/2018-71 REGULATIONS AMENDING THE INSURABLE EARNINGS AND COLLECTION OF PREMIUMS REGULATIONS

(For text of documents, see Appendix B, p. 42B:1.)

Ms. Kirkby: Two issues were raised with respect to these regulations, and it is not clear that the response provided on either issue is satisfactory.

The first issue concerns compliance with subsection 5(1) of the Statutory Instruments Act, which requires a regulation-making authority to transmit a regulation to the Clerk of the Privy Council for registration within seven days after making it.

In this instance, the Minister of National Revenue made the regulations on February 19, 2018, but they were not registered until April 4, more than a month later. The department notes that the regulations were transmitted for registration within seven days of their approval by the Governor-in-Council, which occurred on April 3. The complication is that the Employment Insurance Act authorizes the minister to make regulations with the approval of the Governor-in-Council. This appears to be very rare wording when it is the minister making the regulations, but it is somewhat more common to require the approval of the Governor-in-Council when the regulation-making authority is an entity such as pilotage authority or the Canadian Nuclear Safety Commission.

The committee's general approach has been to allow for some latitude with respect to compliance with the Statutory Instruments Act requirement when the regulation-making authority is an external entity that needs to seek Governor-in-Council approval between when the regulations are made and when they are transmitted for registration.

The first issue is, therefore, whether committee members wish to allow for the same latitude in complying with the statutory requirement when the regulation-making authority is a minister of the Crown.

As is noted in the materials, however, there is no actual consequence in the Statutory Instruments Act for failure to comply with subsection 5(1), so it is a somewhat academic question.

Can I suggest we deal with the first issue first?

The Joint Chair (Mr. Albrecht): We'll deal with these two issues separately; the issue of the timeline, after which these came into force?

You will see clearly on page 2 of your notes that the minister tabled this on February 19, but it was not brought to our attention until April. Are there any comments?

Counsel, do you have recommendations for us as to how we deal with this first one.

Ms. Kirkby: It's very rare to have this situation arise. There aren't many external sources that we can look to for advice on how to approach it. If the committee is content to extend the same latitude when it's the minister seeking approval, then we can take that approach, or we could say, "As a minister of the Crown, we expect that you'll be able to seek the approval more quickly."

The Joint Chair (Mr. Albrecht): Is there any way that the regulations could be changed to clarify that she or he doesn't have that requirement, similar to an external body? Currently they say that they do have that obligation.

Ms. Kirkby: The Employment Insurance Act could be amended to no longer require the approval of the Governor-in-Council.

The Joint Chair (Mr. Albrecht): You have to do an actual legislative amendment.

Ms. Kirkby: The Statutory Instruments Act could also be amended to deal with situations where the body that makes the regulation then needs to seek approval.

Mr. Shields: Latitude is probably something good to do but, on the other hand, we could always write a letter saying: "Maybe you weren't aware of this having happened. We would appreciate, in the future, following the guideline. We're glad to give you the latitude this time, but we hope you're aware that this is the procedure and hopefully in the future that's followed."

The Joint Chair (Mr. Albrecht): I think counsel has written to that effect. You're possibly suggesting a letter from the joint chairs to the ministers?

Mr. Shields: Right.

The Joint Chair (Mr. Albrecht): Would that be helpful?

Ms. Kirkby: Possibly. I didn't raise that issue when the initial letter was sent.

There is additional confusion because the requirement in the Statutory Instruments Act is that it must be transmitted for registration. The problem could have been at the registration end as opposed to the transmission end.

We could certainly send another letter saying that in the future we expect that this be done more quickly.

The Joint Chair (Mr. Albrecht): We won't send them to court this time.

The Joint Chair (Senator Day): A soft letter.

The Joint Chair (Mr. Albrecht): I see general agreement on point 1 of Item No. 3.

The second issue, misrepresenting the law.

Ms. Kirkby: The second issue is whether the law, as it existed, was being deliberately misrepresented and misapplied because a correction was expected in the near future.

According to the Regulatory Impact Analysis Statement, the Employment Insurance Act provides temporary income support to workers in special circumstances such as pregnancy, parental and compassionate care benefits, which are referred to as special benefits. When an employer makes supplemental payments, or top-ups, to individuals who are receiving these special benefits, the top-ups are generally not included in insurable earnings for Employment Insurance purposes. This means that neither the employer nor the employee pays EI premiums on the amount of the top-up.

A new benefit for parents of critically ill children, known as the PCIC benefit, came into effect on June 9, 2013, and the RIAS goes on to state that an amendment to the regulations to ensure that top-up payments are not included in insurable earnings for EI purposes was "omitted." Continuing to quote from the RIAS: "As a result, from a legal standpoint, employer top-ups to the PCIC benefit were unintentionally included in insurable earnings for the period from the effective date of the PCIC benefit until the date that this proposed amendment is registered."

To paraphrase, from 2013 to 2018 it appears that employer top-ups were included in insurable earnings as a matter of law. However, the RIAS states that there was a very low risk that EI premiums were paid in respect to these top-up payments because guidance on the Government of Canada website about the PCIC benefit indicates that top-ups are not included in insurable earnings.

This seemed to be saying that the Government of Canada website was knowingly misrepresenting the state of the law, and so an explanation was sought. The department's response from Canada Revenue Agency states in its entirety:

The information provided on the Government of Canada website concerning top-up payments agrees with the underlying policy intent associated with these payments. Recognizing that a corrective regulatory change with respect to PCIC benefits was being proposed, making an adjustment to public information would have run contrary to policy and created confusion and uncertainty in the employer community. This confusion, likely causing errors in the calculations of premiums, would have been further compounded when the corrective regulatory change was made, which at the time was expected in the near term.

This appears to confirm that the state of the law, as set out in the regulations, was intentionally misrepresented and potentially misapplied for a period of five years. It should go without saying that, as per the fundamental principle of the rule of law, it is the law itself that governs, not the law as it is expected to be at some point in the future when a corrective regulatory change is made.

The Joint Chair (Mr. Albrecht): It seems pretty clear.

Committee, how do we want to deal with this? Obviously, five years of top-up payments were potentially omitted. People were short changed — according to the law — even though the intent was not to do that.

Mr. Miller: I don't know the history of this committee and the powers you have, Mr. Chair, but when they say in the response letter that it was expected in the near term, is five years considered near term?I don't think any of us can honestly believe that they had any intention of fixing this quickly or it would have never gone on that long.

What powers do we have? If they were in the room here, you can't really slap their fingers. What do you do?

The Joint Chair (Mr. Albrecht): I think, technically, we could disallow that for that period and it would be a huge kerfuffle to go back and repay all of those.

I'm going to look to counsel.

Ms. Kirkby: I don't know that anything could be disallowed. I think it was something that was omitted from the regulations.

The Joint Chair (Mr. Albrecht): Disallow the payments or actually insist that they go back and repay any payments that were missed.

Ms. Kirkby: We're not entirely clear if there was any impact on EI payments. They do say that there wasn't any, so I don't know that there's any concern with individuals being short changed.

Mr. Miller: Ms. Kirkby, so we're clear, nobody didn't get something that they were qualified to get?

The Joint Chair (Mr. Albrecht): Not that we know of.

Mr. Miller: I guess if that's the case, then no harm done, although it causes a lot of confusion. The reason I had grave concerns with this was thinking that if somebody was rightly eligible for something and they didn't get it because of something deliberately done illegally, then we have a problem.

People have the right to go back and collect that. But if they didn't lose anything, then no harm done, as long as the thing has been fixed. I'm not clear that it is.

Ms. Kirkby: We could certainly ask for clarity about the real world impacts of this particular issue, but there is the additional issue of the rule of law where you have the law, as it exists, not being applied. Perhaps that is an issue.

The Joint Chair (Mr. Albrecht): The bigger issue, and part of the reason there probably are no examples of someone being shortchanged, is that the website made it look like the law was one thing, when in fact it was the other thing. That's where I think we have a hard decision to make in terms of the best way to move forward.

Does anyone else want to speak to the issue?

Mr. El-Khoury: I would like to hear from our counsel. What kind of ultimate power do we have in order to let them apply the fundamental principle rule of law regarding this issue?

Ms. Kirkby: They don't seem to think they have done anything wrong. The reply from the department refers to having administered the underlying policy intent as opposed to what the law actually stated.

I think it should certainly be pointed out to them.

What this committee does is persuade, generally speaking. We could certainly write back and explain to them that regardless of your policy intent, regardless if it's an error, you apply the law. That point doesn't seem to have been understood. That is something the committee could do to make the point that the rule of law trumps policy intent.

The Joint Chair (Mr. Albrecht): I think that's the very least we can do as a committee. Unless I see other suggestions, I think that's the direction we'll move in.

Do you want to have this sent to the minister so that the minister is aware of this breach? It is not all falling on one person. There's enough blame to go around, but the principle needs to go to the ministerial office.

Mr. Benzen: When this started in 2013, when did we find out that it needed to be fixed? I don't really see a timeline here. This is obviously a case where it needs to be fixed as quickly as possible so that there isn't a discrepancy. Why did it take five years to get to this point, in 2018?

Ms. Kirkby: The regulations were only made in 2018. That's when we noticed it, only because it was explained in the Regulatory Impact Analysis Statement that this was fixing an error, addressing an issue that had arisen in 2013. That was when it came to our attention.

Mr. Benzen: So they fixed it, and very quickly, once they knew about it. It just took five years to find out there was a problem.

Ms. Kirkby: I think they knew much earlier than that. It looks like they expected something to be done shortly after 2013. For whatever reason, it wasn't addressed until 2018. We didn't notice it until —

Mr. Benzen: That's distressing; they knew it in 2013 but did nothing for five years to fix something that could potentially have turned into a big problem.

Obviously, once we found out about it, they fixed it, but with their due diligence, they should have been fixing this right away in 2013. How do we get across to them that they can't sit on something for five years, waiting to fix it, when it has these implications?

Ms. Kirkby: The letter does say they expected the corrective regulatory change in the near term, which sounds to me like they were working towards it, but for whatever reason the correction took five years.

Mr. Benzen: A problem we have on this committee is trying to get people to expedite things.

We need to stress in that letter that when it has this kind of impact on Canadian citizens, they have to put every effort to fix it right away and not let five years go by before they get to the point of fixing it.

[Translation]

Ms. Quach: In fact, we are told that no one suffered any consequences, but I would be surprised, if there were mistakes, if no one had been affected over the five-year period. If people did not know that they could complain or claim certain amounts, then they would not have claimed anything. So, the impression was created that no mistakes were made in any employment insurance application cases.

If this is made public, and if there suddenly are complaints and claims, has the minister planned for a retroactive process covering the past five years, to correct things? May we ask that such a process be put in place? I imagine that this would be done through access to information requests.

Be that as it may, I find it quite surprising that over five years there were no claims and no monetary errors in any employment insurance submissions.

Ms. Kirkby: We can include a question to that effect in the letter sent to the minister; we can ask if a retroactive corrective measure needs to be put in place.

[English]

Part of the reason they're saying that there were no actual impacts was because they were applying it as they expected it to be.

Mr. Abel: The only possible impact here would have been premiums paid to the government in the EI fund. The only thing that this correction did was remove the requirement from employers and employees to pay the premium for this benefit.

The government didn't collect money that it was entitled to, basically, because it didn't want to. So for employees and employers, they received a benefit, if anything.

The department thinks it's unlikely that anyone actually paid those premiums, which seems to indicate that it's not 100 per cent sure that no one paid those premiums. But legally, everyone was supposed to pay the premiums.

So citizens received the benefit of the law being applied incorrectly, which is fine from a liberty perspective, but the problem is that happened because the government advised everyone to ignore the law and didn't apply the law. That's the issue, and it sets a poor precedent for executive action. In essence, no harm was done, as far as we can tell.

The Joint Chair (Mr. Albrecht): It could be argued that the EI fund is smaller because these weren't collected.

Mr. Shields: I wanted to comment. Business people are citizens, and usually when business people get a CRA direction, they comply. To suggest that citizens didn't get hurt by this, I might take umbrage at that because business people are citizens and tend to follow directions from the CRA. I'm not in agreement with your statement.

Mr. Abel: I only mean that to the extent that no one ended up paying more money than they would have, both employers or employees. They were relieved from the burden of paying a premium.

Mr. Shields: You don't know that.

Mr. Abel: It's true that we don't know that everybody did. We're relying on the department's risk assessment.

Mr. Shields: Which they are not claiming they know.

Mr. Abel: That's true.

Mr. Shields: That's the problem for me.

The Joint Chair (Mr. Albrecht): I think we're going to proceed by pointing out to the department that it was unacceptable and that we need assurance that these kinds of things are addressed much more rapidly.

We need a new definition of "imminent" and "in the near future."

Are we comfortable?

Ms. Kirkby: Issue one, a letter from me; issue two, a letter from you to the minister.

The Joint Chair (Mr. Albrecht): Correct.

SOR/98-443 — ENVIRONMENTAL ASSESSMENT REVIEW PANEL SERVICE CHARGES ORDER

(For text of documents, see Appendix C, p. 42C:1.)

Penny Becklumb, Counsel to the Committee: This service charges order was made in 1998, under the former Environmental Assessment Act. In 1999, the joint committee found that the schedule of charges included in the order is largely unauthorized.

However, the service charges order was superseded in 2012 by the Cost Recovery Regulations, which were made when the Canadian Environmental Assessment Act was repealed and replaced. So rather than amending the service charges order, the Canadian Environmental Assessment Agency decided, in 2013, that they would repeal it, as well as its enabling instrument, eventually.

The delay in repealing these instruments is due to the fact that two debts remain outstanding under the service charges order. The agency is of the opinion that the service charges order should not be repealed until those two debts are paid and related matters before the courts are resolved.

However, the agency's approach may be overly cautious in light of section 43 of the Interpretation Act. That section provides that when an enactment is repealed, the repeal does not affect any right or liability that was accrued or incurred under the repealed enactment, nor does the repeal affect any legal proceeding or enforcement in respect of any such right or liability.

So the agency could be asked why it continues to delay the repeal in light of section 43, or, if the committee is content to wait for the debts to be resolved before the repeal, the agency could be asked for an update on the status of the related litigation.

The Joint Chair (Mr. Albrecht): It seems clear to me if there's a section that still authorizes them to collect bad debts, they should repeal it and get on with it, rather than just asking for an update.

Mr. Scarpaleggia: Just so that I understand, these companies paid this charge when they didn't have to.

The Joint Chair (Mr. Albrecht): They haven't paid yet.

Ms. Becklumb: They need to pay charges for the environmental assessments that were carried out on their behalf, but they're in litigation over those charges and the outcome of their environmental assessments. So those debts have yet to be paid to the government.

Mr. Scarpaleggia: But they are owing to the government regardless of the outcome of the litigation?

Ms. Becklumb: That's the question. I haven't reviewed the litigation in detail, but it's possible they may be disputing the charges owed, depending on the outcome of the environmental assessment.

Mr. Scarpaleggia: In terms of the charges they have been told they have to pay, is there a reason in regulation why they wouldn't have to pay them? I don't understand the issue. Why are they disputing the charges?

Ms. Becklumb: I think they're disputing the outcome of the environmental assessment.

Mr. Scarpaleggia: What does that have to do with our role? If they're disputing the outcome of an environmental assessment, how does that relate to regulations and whether they've been misapplied?

Ms. Becklumb: Because that's what the charge is: They have to pay for the environmental assessment, which they disagreed with — not the fact they have to pay for it but the outcome of the environmental assessment.

Mr. Scarpaleggia: Not being a lawyer, I would think that it will be resolved in court. I just don't understand why it's a regulatory matter for us.

Ms. Becklumb: Because the Environmental Assessment Agency doesn't want to repeal these instruments, which are essentially spent until these outstanding debts are collected.

Because of section 43 of the Interpretation Act, it appears that they could repeal them and still those debts would be owing.

Mr. Scarpaleggia: I see. Is it clear that's the case?

Ms. Becklumb: That's what section 43 of the Interpretation Act says, but we haven't sought the agency's response to whether it's considered —

Mr. Scarpaleggia: Why don't we do that? Why don't we ask them?

Ms. Becklumb: Sure.

Mr. Sidhu: These companies feel that they don't owe that money. They should be entitled to appeal, and their departments shouldn't hinder that. They can coincide, saying, "You owe me money but you go ahead and knock on the court's door." A recommendation from the committee should be to the department, advising them to let them appeal if they feel that they don't owe that money. Otherwise, it's going to be hanging in the air.

The Joint Chair (Mr. Albrecht): The issue, Mr. Sidhu, is that they do owe the money, and regardless of whether we repeal, they would still owe the money.

As a committee, as can be seen under the first paragraph of the summary, we concluded that the charges order and its enabling instrument should be repealed. That's a decision this committee has already made — it should be repealed. This department is saying, "Yes, we'll repeal it, but we're going to wait until we get our back pay." Yet our counsel is saying that, clearly, section 43 says that is immaterial. Whether it's repealed or not, the government is still entitled to get their back pay. It will go to court, but they are still entitled to fight it in court.

Mr. Sidhu: I fully understand. But it's hanging in the air; it's not going anywhere. Let them appeal at the same time. This department feels they still owe the money.

Ms. Becklumb: To clarify: They certainly are appealing. There are two companies. One is Taseko. They've already taken it to Federal Court. Their judicial review was dismissed. Now they're appealing that to the Federal Court of Appeal.

The second company, Bilcon, has outstanding debts. They have sought to have the decision made on their Whites Point Quarry and Marine Terminal project overturned by a NAFTA tribunal.

Both companies are vigorously contesting the outcomes of their environmental assessments through legal channels, and they have debts owing.

Mr. Ehsassi: I'm thoroughly confused by this. If this particular order is repealed, that doesn't mean these companies are off the hook.

Ms. Becklumb: That's what we're suggesting.

Mr. Ehsassi: Because it's pre-existing. I don't understand the department's position, and I don't understand the position of the companies either.

I know in the NAFTA case, this particular assessment is not a part of their dispute. It's not the pith and substance of what is before that NAFTA tribunal, so why would they use this as a pretext?

Ms. Becklumb: I can't speak to why these companies won't pay the debts until this litigation is settled.

Mr. Ehsassi: Perhaps we should talk about the department. Why do they maintain that they cannot repeal this? There's no relationship there.

Ms. Becklumb: This is what I'm suggesting. It may be overly cautious. Section 43 says that the debts aren't affected by the repeal, and yet they don't want to repeal it until they've collected these debts that were incurred under that order.

The suggestion is that we could ask them if they've considered section 43 of the Interpretation Act, and on what basis they believe —

Mr. Ehsassi: That has never been in our correspondence?

Ms. Becklumb: That has never been discussed.

The Joint Chair (Mr. Albrecht): That's the step we are considering right now.

Mr. El-Khoury: Again for counsel, when there is an issue like this and we see that there is litigation, doesn't the court decide?

Ms. Becklumb: Perhaps, if the charges are in dispute, then the court will — I wonder. I don't know the extent to which the litigation relates only to the outcome of the environmental assessment as opposed to the charges incurred for providing the service of the environmental assessment.

Mr. El-Khoury: I'll consult my lawyer.

The Joint Chair (Mr. Albrecht): In either case, that has no impact on the repeal. I think we're trying to confuse the issue. What we as a committee are concerned about is not the litigation that's going on; we're concerned that this repeal should happen because regulations have been changed. That's what we needed.

If our counsel follows through with the suggestion that they don't need to worry about being able to continue with collecting money, or at least trying to, due to section 43, we're both off the hook, as Mr. Ehsassi said.

Mr. Hehr: My sense would be to follow through on repealing the bill, with a note to the department saying that section 43 allows them to go collect these debts, so go collect and move on with your day.

The Joint Chair (Mr. Albrecht): I see general agreement around the table on that. We'll proceed in that fashion.

The Joint Chair (Senator Day): What do we do when they ask us to indemnify them for interpreting section 43?

The Joint Chair (Mr. Albrecht): We'll just give them your Visa card.

[Translation]

SOR/99-318 — CANADA PORT AUTHORITY ENVIRONMENTAL ASSESSMENT REGULATIONS

SOR/2011-139 — ESTABLISHING TIMELINES FOR COMPREHENSIVE STUDIES REGULATIONS

(For text of document, see Appendix D, p. 42D:1.)

Ms. Becklumb: Just like the previous case, this matter concerns regulations made under the former Canadian Environmental Assessment Act; these regulations became obsolete when the act was repealed and replaced.

The committee has been waiting for more than two years for these obsolete regulations to be repealed. The delay is due to the fact that the agency combined the repeal with a major legislative and regulatory amendments project. It did not present any time frame with respect to that project. The committee could determine whether it is advisable that the repeal wait for the completion of this big project, and if so, ask the agency to submit a time frame to the committee. It could also ask that the repeal be done separately without waiting for the end of the project, perhaps in the context of a miscellaneous amendments regulations process.

Ms. Quach: Counsel, I would like to know what advantage there is in requesting the repeal right away. Would it take longer to wait for the end of the project, and wait till all of the amendments are together, or would it be more effective to ask for the repeal first, and then for a change to the regulations if necessary? Or does it come to the same?

Ms. Becklumb: It's the same thing. There is no effect on the general public. Both of these regulations are obsolete. However, they are still in the statutes, so we need to clean things up.

[English]

The Joint Chair (Mr. Albrecht): Do you want to move expeditiously to get them done, wait until the end of the project or, as suggested in the notes, threaten disallowance?

Mr. Sidhu: Mr. Chair, this is still an ongoing process. Let's wait, I guess, and see what it brings out in the next month or two.

The Joint Chair (Mr. Albrecht): Just wait, or do you want to ask for an update as to what their projected timelines are?

Mr. Sidhu: Yes.

The Joint Chair (Mr. Albrecht): I see general agreement that the committee is willing to give some time on this one and ask for a specific update as to how the process is going.

[Translation]

SOR/2001-390 — FORM OF PROXY (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

(For text of documents, see Appendix E, p. 42E:1.)

Ms. Becklumb: These regulations contain obsolete references to provisions in the Canada Business Corporations Regulations, which were repealed and replaced in 2001. The committee pointed out the problem for the first time to the Department of Finance in 2004. However, the department is still uncertain as to how to proceed in the context of a perpetually evolving legislative and regulatory environment.

The memo in your documents describes the delays that occurred over the past 14 years, that is to say since the department agreed that changes were required. The committee sent a letter to the minister on May 4, 2016, in order to bring the matter to his attention. Consequently, and pursuant to the procedure adopted by the committee several meetings ago, the next step consists in considering the convening of witnesses.

[English]

The Joint Chair (Mr. Albrecht): I think there is wisdom in that. You see all of the requests for response that were totally ignored, three further requests on March 23. Since 2001, it has been only 17 years.

Are committee members in agreement with the idea of calling witnesses to have them explain the reasons for their delays? Is there any opposition to that? All agreed?

Okay, we'll call in witness. That will probably have to happen in the new year.

[Translation]

SOR/2003-363 — ANTARCTIC ENVIRONMENT PROTECTION REGULATIONS

(For text of documents, see Appendix F, p. 42F:1.)

Ms. Becklumb: Ten issues were raised with respect to these regulations in 2006. In 2010, the Department of the Environment made changes to correct some of these problems, but not all of them. Amendments to correct remaining issues are scheduled for pre-publication this winter. However, since we have not heard anything from the department since January 2018, counsel could write to the department again to verify that the amendments are still scheduled for pre-publication in the coming months.

[English]

The Joint Chair (Mr. Albrecht): I think you partly answered my question, because the letter of response says winter of 2019. I guess my question is: What is the definition? Is that January 2019 or December 2019? They are both winter. Do you have an accepted definition of winter 2019?

Ms. Becklumb: That's a question, for sure.

Shall we follow up?

The Joint Chair (Mr. Albrecht): I'm being somewhat facetious, but is it honestly expected in January or February? When I read it, I thought that could easily be November or December of 2019, which is unacceptable, in my opinion. I would definitely seek clarification.

Ms. Kirkby: We have asked for clarification before of what exactly "winter" means. There does seem to be ambiguity.

The Joint Chair (Mr. Albrecht): At the very least we could ask for a date such as January or February 2019.

If it is satisfactory to counsel that we proceed in that fashion, I am going to turn the chair over to Senator Day.

[Translation]

SI/2018-33 — TRANSFER OF DUTIES ORDER

(For text of document, see Appendix G, p. 42G:1.)

Ms. Kirkby: This order transfers from the Department of Health to the Department of Indigenous Services Canada, the control and supervision of the First Nations and Inuit Health Internal Services Unit, effective April 1, 2018. However, an earlier order had transferred from the Department of Health to the Department of Indigenous Services Canada the control and supervision of the First Nations and Inuit Health Branch effective November 30, 2017.

The question was whether the Internal Services Unit was part of the branch. If so, it had already been transferred four months prior, and so the second order would not have applied. The first letter from the Privy Council Office seems to indicate that the Internal Services Unit was indeed part of the branch, but that the transfer had taken longer than expected and so a second order was issued to complete the transfer.

The second letter from the Privy Council Office indicates that in fact, the orders pertain to two separate and different organizational units and that the employees of the Internal Services Unit were never part of the branch. It is a bit difficult to reconcile those two letters, but if it is true that the employees of the Internal Services Unit were never part of the branch, it is also true that there is no inconsistency between the two orders.

In that case, the answer may be deemed satisfactory and the file can be closed.

[English]

The Joint Chair (Senator Day): If we accept them at their word in the second letter, then we're done.

The Joint Chair (Mr. Albrecht): All we needed was a new chair.

The Joint Chair (Senator Day): Are we okay with that? That's one you can mark as satisfactory and concluded. Great.

Ms. Kirkby: Close the file.

SOR/2008-180 — PRINCIPAL PROTECTED NOTES REGULATIONS

SOR/2009-257 — CREDIT BUSINESS PRACTICES (BANKS, AUTHORIZED FOREIGN BANKS, TRUST AND LOAN COMPANIES, RETAIL ASSOCIATIONS, CANADIAN INSURANCE COMPANIES AND FOREIGN INSURANCE COMPANIES) REGULATIONS

SOR/2010-69 — MORTGAGE INSURANCE DISCLOSURE (BANKS, AUTHORIZED FOREIGN BANKS, TRUST AND LOAN COMPANIES, RETAIL ASSOCIATIONS, CANADIAN INSURANCE COMPANIES AND CANADIAN SOCIETIES) REGULATIONS

SOR/2010-239 — ELECTRONIC DOCUMENTS (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

SOR/2010-240 — ELECTRONIC DOCUMENTS (TRUST AND LOAN COMPANIES) REGULATIONS

SOR/2010-241 — ELECTRONIC DOCUMENTS (INSURANCE AND INSURANCE HOLDING COMPANIES) REGULATIONS

SOR/2010-242 — ELECTRONIC DOCUMENTS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/2011-98 — DEPOSIT TYPE INSTRUMENTS REGULATIONS

SOR/2011-99 — REGISTERED PRODUCTS REGULATIONS

SOR/2012-23 — NEGATIVE OPTION BILLING REGULATIONS

(For text of documents, see Appendix H, p. 42H:1.)

Mr. Abel: This bundle includes 10 regulations on which common concerns have been raised. Four of these instruments — SORs/2010-239 to 242, dealing with electronic documents and their titles — are new to the committee, while the other instruments have been before the committee at earlier dates.

Most matters are subject to promised amendments that address a variety of issues, including discrepancies between the English and French versions, needs for clarification, grant of undue administrative discretion, or vague or subjective wording.

Members may have noticed that the department's response on November 29, 2016 on the electronic documents files does not actually provide firm commitments to make amendments. The development of broad regulatory packages dealing with these files has primarily been followed on the other files in this bundle, and a significant amount of communication has been provided from the department lately by telephone. Hence, while a formal letter confirming amendments on the Electronic Documents Regulations is lacking, counsel can confirm that most of the issues will be addressed in the forthcoming amendment packages or by way of a statutory amendment, except for one outstanding matter to be addressed in a moment.

A breakdown of the promised amendments as they pertain to each file is included, starting on page 4 of the notes prepared for today.

Thirteen of the promised amendments will be made through a miscellaneous amendment regulation package. Departmental officials indicated by telephone in January that this package was expected to be published by June 2018. While it has not yet been made, officials have informed the secretariat that its completion is expected shortly.

Five other promised amendments are more substantive and must go through the full regulatory process. In October 2017, the department indicated that these might be completed before the end of this year. While the amendments have not yet been made, the time frame could still be met.

Finally, one issue will be dealt with by way of a statutory amendment to the relevant enabling acts. This has been included in the fall budget implementation bill recently tabled in the House of Commons.

There is one outstanding matter common to all these files, which is the committee's concern regarding a requirement that information be disclosed in a manner that is not misleading. This issue is discussed in detail in the note.

In short, these regulations all set out a requirement that any disclosure required by an institution under the regulations not be misleading. The committee previously noted that this appears to overlap a requirement set out in the enabling act. Incidentally, there are four enabling acts that relate to each of these instruments as the case may be. Those acts make it an offence for a person to knowingly provide false or misleading information in relation to any matter under the act or the regulations.

While the overlap in itself would suggest that the regulatory requirement is superfluous, the regulatory requirement also appears to impose a stricter requirement than the enabling act. The act makes it an offence to knowingly provide false or misleading information, but the regulation requires simply that one provide false or misleading information; it is not necessary to have knowingly done so. In other words, under the regulation, accidentally providing incorrect information would amount to an offence. This amounts to broadening the statutory prohibition.

The committee, therefore, recommended that any reference to providing misleading information in the regulations should be deleted.

The department, however, has maintained for several years that this provision does not need to be amended. As detailed in the note, the committee did not accept the previous arguments provided in 2014 or 2015.

Presently, the department explains that the enforcement of what are considered consumer provisions of the finance-related statutes and their regulations is assigned to the Financial Consumer Agency of Canada. What qualifies as a consumer provision is listed in section 2 of the Financial Consumer Agency of Canada Act. Indeed, section 2 of that act does not include the statutory prohibitions against providing false or misleading information. The department argues that this validates the making of similar requirements under the regulations that are considered consumer provisions.

In other words, the department would prefer that the Financial Consumer Agency enforce the prohibition against providing false or misleading information, but these prohibitions, in their respective statutes, do not fall under the agency's responsibility. So the department has created duplicate provisions in the regulations that do fall under the responsibility of the Financial Consumer Agency.

While this explanation illuminates the perspective of the department from an administrative viewpoint as to why the regulatory requirements exist at all, it does not resolve the problem from a legal perspective. The prohibition or the requirement imposed on the institution is the same, regardless of whether it is found in an act or in a regulation.

Since every legislative provision is presumed to have an effect, a duplicate provision accomplishes nothing in law and therefore must be removed.

If the department prefers that the Financial Consumer Agency be tasked with enforcing these prohibitions, the solution is to ask Parliament to list those relevant statutory provisions in section 2 of the Financial Consumer Agency of Canada Act.

Moreover, the department has still not explained why the regulatory requirement sets out a stricter offence than the enabling statutes.

The response, I would suggest, therefore, does not seem satisfactory. A further letter could be drafted pursuing this matter, and members may wish to consider drawing the minister's attention to this issue, given that the department has, several times, provided arguments that have not been satisfactory to the committee.

In any case, I would also suggest that the next letter should seek an update on the promised amendments that were also discussed.

The Joint Chair (Senator Day): Comments?

Mr. Hehr: I agree with counsel's advice. It has to go back to the department, getting further and better clarification and pointing out exactly what he stated there.

The Joint Chair (Senator Day): Can we tighten this up a bit? The front part of a lot of these regulations — you're content that the miscellaneous amendment regulations and legislation will deal with a number of these issues in due course?

Mr. Abel: The MARs package, yes, and there is a statutory amendment now introduced to Parliament. I would suggest the committee could seek an update on the progress of those.

The Joint Chair (Senator Day): That would be watching and keeping an eye on things, on the front part.

Mr. Abel: It's likely the MARs package will be made this fall at some point.

The Joint Chair (Senator Day): So are we content to have counsel continue to monitor those issues? There's agreement on that.

The next issue is somewhat more complicated. This is the misleading information aspect that has just been explained by counsel. Is there any comment from colleagues as to what we should do to deal with this matter?

The Joint Chair (Mr. Albrecht): I suggest that we proceed with counsel's recommendation that we write a letter to the minister outlining our concerns and that it still has not been adequately cared for in the previous correspondence. To the minister this time, not only the department.

Mr. Hehr: And the reasons why.

The Joint Chair (Senator Day): Colleagues, are we content with that action? That will tighten up the issue a bit as well.

That's the course we will follow. Thank you.

SOR/2005-135 — REGULATIONS AMENDING THE CHARTS AND NAUTICAL PUBLICATIONS REGULATIONS, 1995

(For text of documents, see Appendix I, p. 42I:1.)

Ms. Kirkby: This is the first time this file is being presented to the committee. Ten issues were raised in the initial letter, which was sent to Transport Canada in May 2017. In addition, information was sought about the "type approval" of an electronic chart display and information system, or ECDIS.

As well, certain errors were detected in the consolidated version of the regulations maintained on the Department of Justice website, so a letter was sent to Justice as well.

Since then, the consolidated version has been corrected, and Transport Canada advises that most of the issues will be addressed in an upcoming consolidation of the Navigation Safety Regulations.

In February of this year, Transport Canada advised that the aim was to have the proposed amendments published by fall 2018 and to have the regulations made and published by fall 2019.

Prepublication has not yet occurred, so an update on the progress of the promised amendments could be sought.

On the issues for which amendments have not been promised, Transport Canada had indicated that further analysis was required but, to date, has not provided the results of that analysis. The department could therefore be asked for a substantive reply on those remaining issues.

In addition, the general information provided about the ECDIS did not address the specific questions raised, so that point could be pursued as well.

The Joint Chair (Senator Day): Comments, colleagues?

Mr. Miller: Mr. Chair, I'm not clear on their response. Is it still possible that this can be done in 2018?

Ms. Kirkby: I think so. The proposed amendments would be published in the fall, so that's Part I of the Canada Gazette. Then the goal was to have the regulations made and published by fall 2019, so they might still be on track with that.

Mr. Miller: After hearing that, Mr. Chair, at least they're not 17 years out like the previous one. It sounds like it is at least still possible. I'm good with that.

The Joint Chair (Senator Day): We'll continue to monitor along those lines as you have been doing.

Ms. Kirkby: I'll seek an update on those points.

The Joint Chair (Senator Day): Is that satisfactory, colleagues?

Hon. Members: Agreed.

[Translation]

SOR/2017-203 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS

(For text of document, see Appendix J, p. 42J:1.)

Ms. Kirkby: These regulations amended the Regulations on the Laurentian Pilotage Tariff Regulations in order to respond to all of the issues raised with respect to SOR/2014-52, and so that file was closed. However, the amendment made to subsection 2(5) added the phrase "between the time the pilots embark and the time they disembark" to paragraph (a) only, which created a difference in the wording between paragraphs (a) and (b).

Transport Canada explained that the words were necessary as they relate to district 1, affected by paragraph (a), because there is always one or more change of pilots on any given trip. So the number of consecutive hours is calculated from the time the pilots embark and the time they disembark. However, insofar as district 2 in paragraph (b) is concerned, there is no change in pilots and therefore the duration of the trips may be calculated according to the number of consecutive hours based on the departure and arrival time of the ship.

And so it would seem that the difference between the wording in the two paragraphs is intentional, and if the members are satisfied, this file can be closed.

[English]

The Joint Chair (Senator Day): Are members satisfied?

Members appear to be satisfied. Thank you. We'll close this one out.

SOR/2002-227 — IMMIGRATION AND REFUGEE PROTECTION REGULATIONS, AS AMENDED BY SOR/2005-61

(For text of documents, see Appendix K, p. 42K:1.)

Mr. Abel: Members may recall from previous appearances of these regulations that this is a monstrously large file. Some 140 points were originally raised in 2006, but it is ever so slowly creeping toward a final resolution.

To summarize, a statutory amendment to the enabling act has been made resolving one issue. Several other regulatory amendments have been made since this was last before the committee, resolving some issues. There are a number of outstanding regulatory amendments to be made, some of which may be made before the end of the year and others for which an update could be sought.

There are three outstanding points for which the committee is still awaiting replies, but both the Canada Border Services Agency and the department are developing those responses, so an update could be sought on that as well.

Finally, there are a few promised amendments that were agreed to by the department in 2016 that haven't been mentioned in some time. It's likely they have been lost simply in the complexity of this file. The department could be asked again what's happening with those files to bring them back to their attention.

If members agree, a new letter could be drafted to the department and the agency to seek an update on all of these matters.

The Joint Chair (Senator Day): Agreed?

Counsel, thank you very much. I would assume that, over the years, probably everyone who has worked in your office has had a chance to work on some of these files. That's probably the case from the department's point of view as well.

Mr. Abel: Very likely.

The Joint Chair (Senator Day): Keep up the good work for us. We look forward to hearing good news in due course.

SOR/2009-258 — REGULATIONS AMENDING THE COST OF BORROWING (BANKS) REGULATIONS

SOR/2009-259 — REGULATIONS AMENDING THE COST OF BORROWING (AUTHORIZED FOREIGN BANKS) REGULATIONS

SOR/2009-260 — REGULATIONS AMENDING THE COST OF BORROWING (TRUST AND LOAN COMPANIES) REGULATIONS

SOR/2009-261 — REGULATIONS AMENDING THE COST OF BORROWING (RETAIL ASSOCIATIONS) REGULATIONS

SOR/2009-262 — REGULATIONS AMENDING THE COST OF BORROWING (CANADIAN INSURANCE COMPANIES) REGULATIONS

SOR/2009-263 — REGULATIONS AMENDING THE COST OF BORROWING (FOREIGN INSURANCE COMPANIES) REGULATIONS

(For text of documents, see Appendix L, p. 42L:1.)

Mr. Abel: These are the various Cost of Borrowing Regulations. There are two outstanding concerns raised on all six of these regulations. The department last indicated in October 2017 that it was engaged in consultations for proposed amendments. The department's letter stated that implementation in 2018 was a possibility. At this point, a further letter could be drafted to see whether those amendments are, in fact, forthcoming before the end of the year.

The Joint Chair (Senator Day): If not, how quickly into the next year before they get at them?

Mr. Miller: I wouldn't give them that option, Mr. Chair. They might accept it.

The Joint Chair (Senator Day): We know this letter is just not going to get answered until 2019. Anyway, that course of action is satisfactory. We look forward to hearing what they have to say.

SOR/2017-165 — CERTIFICATE OF SUPPLEMENTARY PROTECTION REGULATIONS

(For text of documents, see Appendix M, p. 42M:1.)

Mr. Abel: In reviewing this file, a defect was noticed in the relevant enabling provisions of the Patent Act. This is a rather unusual and breathtaking error. The French and English versions of paragraph 134(1)(f) of the act provide for two entirely different regulation-making powers. The English version authorizes the making of regulations respecting details of how prescribed fees shall be paid. The French version authorizes the making of regulations respecting the circumstances in which the holder of a patent or a certificate of supplementary protection may be represented by another person. Obviously, what was intended is that both of these powers be set out in both versions of the act, but that's not what happened.

Nonetheless, given that both linguistic versions of an act are equally authoritative, the absence of one of these enabling powers from each version puts both powers in doubt. This, in turn, calls into question the validity of any regulatory provision that relies on either one of these powers.

A remedial amendment to the act is therefore necessary — quite likely one that is retroactive in nature.

The Department of Industry's reply acknowledges the defect in the act, and it indicates the department is working with Justice to identify a vehicle for correcting the error in a timely manner.

If members are satisfied with that, counsel can seek an update on the department's work to resolve this issue, and we'll continue to monitor the file as it develops.

The Joint Chair (Mr. Albrecht): While there is a reticent acknowledgment, when they say "appears to have occurred," this is pretty blatant. I don't know how they can actually put forward a euphemism for "appears to have occurred." It has occurred and let's deal with that.

The Joint Chair (Senator Day): It's a very serious error, as well. When you say "retroactive," what about all those who get caught up in this retroactivity? The more of those, the more difficult this becomes in the industry.

I would think this one requires action expeditiously. There's another word we can put in there.

Do you agree with that? Should we think in terms of imposing a timeline so we've got something to work on, or do we just want to use adjectives again?

Mr. Abel: In this case, what will have to happen is that a bill will have to be presented to Parliament. At that point, it will be in Parliament's hands rather than that of the departments.

The Joint Chair (Senator Day): That will be a while, won't it?

Course of action? Continue to monitor? Should we ask for or should we impose a timeline on this, which is something that is going to have serious ramifications in the industry?

Mr. Miller: January 1?

The Joint Chair (Senator Day): For a piece of legislation?

Mr. Hehr: If we say, "we're hoping to see legislation corrected as expeditiously as possible," that might be the best language to use.

The Joint Chair (Senator Day): "Hoping" or "expecting"? Are we happy with Mr. Hehr's wording?

Mr. Miller: "Strongly urge."

The Joint Chair (Senator Day): Can you get the flavour, counsel?

Mr. Abel: Sure.

Mr. Scarpaleggia: Isn't that what omnibus legislation is really for — to correct all these mistakes? Is it too bold to suggest that this correction be made as part of upcoming budget legislation? Traditionally, that's what omnibus bills were for.

Mr. Hehr: We don't do those.

Mr. Scarpaleggia: But maybe in this case we could.

The Joint Chair (Senator Day): There are only 800 pages in the one we have.

Mr. Scarpaleggia: I don't want to get into that, Mr. Chair.

The Joint Chair (Senator Day): There's agreement that a strong letter is to follow and that we should watch this one closely.

If there is anything offline you can do to expedite this particular matter with the department, that would be helpful. See what they're suggesting and if they're thinking about omnibus legislation, et cetera.

Is there anything else to be brought before this meeting today?

SOR/2005-29 — REGULATIONS AMENDING THE SMALL VESSEL REGULATIONS

SOR/2006-192 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS

SOR/2014-181 — STATEMENT LIMITING THE RIGHT TO EQUITABLE REMUNERATION OF CERTAIN ROME CONVENTION OR WPPT COUNTRIES

SOR/2015-19 — REGULATIONS AMENDING THE NEW SUBSTANCES NOTIFICATION REGULATIONS (CHEMICALS AND POLYMERS) AND THE EXPORT OF SUBSTANCES ON THE EXPORT CONTROL LIST REGULATIONS

SOR/2016-78 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE BROADCASTING ACT

SOR/2016-91 — REGULATIONS AMENDING THE PROPERTY ASSESSMENT AND TAXATION (RAILWAY RIGHT-OF-WAY) REGULATIONS

SOR/2016-121 — REGULATIONS AMENDING THE POOLED REGISTERED PENSION PLANS REGULATIONS

SOR/2016-149 — REGULATIONS AMENDING THE VETERANS BURIAL REGULATIONS, 2005

SOR/2016-154 — REGULATIONS AMENDING THE FIRST NATIONS PROPERTY ASSESSMENT AND TAXATION (RAILWAY RIGHTS-OF-WAY) REGULATIONS

SOR/2016-293 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (TEMPORARY RESIDENT VISA)

SOR/2016-300 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2016-309 — REGULATIONS AMENDING THE POOLED REGISTERED PENSION PLANS REGULATIONS

SOR/2017-23 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SOR/2017-24 — ORDER 2017-87-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2017-25 — ORDER AUTHORIZING THE ISSUE OF A TWO DOLLAR CIRCULATION COIN SPECIFYING THE CHARACTERISTICS AND DETERMINING THE DESIGN

SOR/2017-26 — ORDER AUTHORIZING THE ISSUE OF A TWENTY-FIVE CENT CIRCULATION COIN SPECIFYING THE CHARACTERISTICS AND DETERMINING THE DESIGN

SOR/2017-29 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2017-51 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2017-71 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2017-72 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2017-90 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2017-156 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2017-219 — REGULATIONS AMENDING THE POOLED REGISTERED PENSION PLANS REGULATIONS

SOR/2017-220 — REGULATIONS AMENDING THE PEST CONTROL PRODUCTS REGULATIONS (PERSONAL USE IMPORT EXEMPTION)

SOR/2017-244 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2017-245 — PROCLAMATION DECLARING THAT THE GOVERNMENT CORPORATIONS OPERATION ACT IS APPLICABLE TO DEVELOPMENT FINANCE INSTITUTE CANADA (DFIC) INC.

SOR/2017-247 — REGULATIONS AMENDING THE PROHIBITION OF CERTAIN TOXIC SUBSTANCES REGULATIONS, 2012

SOR/2017-249 — ORDER AMENDING SCHEDULE III TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (AMINOREX)

SOR/2017-250 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (PARTS G AND J – AMINOREX)

Ms. Kirkby: There are 29 instruments under "Statutory Instruments Without Comment" that have been reviewed and found to comply with all of the committee's criteria. If members wish to consult any of these instruments, we have brought copies with us.

The Joint Chair (Senator Day): Otherwise you will be closing your file on those?

Ms. Kirkby: We'll be closing all of those files.

The Joint Chair (Senator Day): Are we all in agreement on that? You have formal agreement to do so.

Seeing nothing further before this meeting, I declare the meeting concluded. We meet again this time next week.

(The committee adjourned.)