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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue No. 51 - Evidence - May 30, 2019
OTTAWA, Thursday, May 30, 2019
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of Statutory Instruments.
Mr. Harold Albrecht (Joint Chair) in the chair.
APPEARANCE OF WITNESSES FROM THE TREASURY BOARD OF CANADA SECRETARIAT
CABINET DIRECTIVE ON REGULATION (SF2017-2)
(For text of documents, see Appendix A, p. 51A:1.)
The Joint Chair (Mr. Albrecht): Committee members, you will recognize we have two different groups of witnesses appearing before us today. We had originally scheduled the first group from Treasury Board to be with us for an hour and we may need that, but we’ve also asked the Global Affairs group to come a bit early in case we’re done here early so we can be more efficient with our time.
We have with us Tina Green, Rima Hamoui and Jeannine Ritchot from the Treasury Board of Canada Secretariat. They’re going to respond to any questions that committee members have. Prior to that, they have an opening statement that they’d like to make, and I’m going to call on Tina to present that. Welcome.
Tina Green, Assistant Secretary, Regulatory Affairs, Treasury of Canada Board Secretariat: Thank you very much and good morning.
Thank you for inviting us today to discuss the federal regulatory system. I’m joined by Jeannine R. Ritchot, Executive Director, Regulatory Policy and Cooperation Directorate, Regulatory Affairs Sector; and Rima Hamoui, Executive Director, Cabinet Committee Operations Division, Regulatory Affairs Sector at TBS.
We’re pleased to have the opportunity to speak to you today about the Cabinet Directive on Regulation and the role of the Treasury Board Secretariat in this work.
I’d like to start by saying that Canada’s regulatory system is recognized internationally as world-class. The system is built on the principles of protecting and advancing the public interest, developing regulations transparently and openly, making decisions to regulate based on evidence, and supporting a fair and competitive economy.
This is as a result of Canada’s overarching regulatory framework, which sets out the instructions regulators must follow when developing, amending or reviewing federal regulations.
TBS, as the central oversight body for the regulatory framework, plays a critical role in upholding these principles. My team is responsible for supporting Treasury Board ministers in considering, for approval, Governor-in-Council regulations and orders in council.
The former Cabinet Directive on Regulatory Management was implemented in 2012 and it had a focus on a regulatory development process based on good regulatory practices, including regulatory impact analysis, cost-benefit analysis and consultation through the Canada Gazette process.
In 2016, TBS began considering how to update that former directive. We wanted it to be more reflective of the entire regulatory life cycle; that is, regulatory development, management and review. We knew that it should reflect many of the key Government of Canada priorities, such as how it could address modern treaty implications, Gender-Based Analysis Plus and the importance of regulatory cooperation throughout the entire life cycle. Most importantly, we wanted to hear from Canadians about the direction we were taking.
The Cabinet Directive on Regulation was drafted in consultation with Canadians, stakeholders, federal departments and agencies, and parliamentarians. A public consultation on the proposed directive was held in fall 2017. We received 28 submissions, including the one from your committee. This was the first time that Canadians were consulted directly on any cabinet directive for regulations. Respondents indicated overall support for the directive.
Stakeholder guidance was instrumental in helping us shape not only the cabinet directive itself, but also the policies and guidelines in effect. We’d like to thank you for your thoughtful comments, which have helped us evolve our own thinking about the regulatory policy framework in Canada. Thank you.
Additional comments from stakeholders challenged us to find ways through the CDR to make the regulatory system more agile and flexible without compromising health, safety or the environment.
We tried to strike a balance with the CDR between many factors: the accountability of individual ministers for their regulations and our role as a central oversight body; flexibility for departments to use non-regulatory tools that might lead to more efficient outcomes in a responsible way versus adopting more predictable regulatory approaches in all circumstances; processes that will allow for departments and agencies to more nimbly make changes to regulations as a result of the comments from this committee through the miscellaneous amendments regulations process in lieu of maintaining all requirements established in the directive, policy and guidance materials; and greater transparency and more consultation, including requiring departments to clearly state in their Forward Regulatory Plans when they plan to respond to this committee, while taking steps to ensure the regulatory process is not bogged down.
We feel that this iteration of the cabinet directive, as well as its underlying policies and guidance, provides a solid foundation for good regulation in Canada. We are recognized by the Organisation for Economic Co-operation and Development as having one of the strongest regulatory policy frameworks because of this tool.
The new directive is a foundation for the government’s broader regulatory modernization goals. We continue to look for ways to assess the regulatory system and for us to become more effective at finding that balance between intervention and neutrality. Several of the regulatory issues raised by the committee align with the goals of the government’s ongoing regulatory modernization efforts.
The introduction of an Annual Regulatory Modernization Bill has provided regulators with an opportunity to make legislative amendments that can introduce innovation or allow for updates to regulatory frameworks, all while maintaining world-class health, safety and security protections for Canadians and the environment. For example, amendments being made to the Textile Labelling Act via the bill remedy inconsistencies between the act and the regulations as identified by your committee.
Furthermore, the development of an online regulatory consultation portal will strengthen transparency with stakeholders and provide more opportunities to engage throughout the regulatory life cycle.
In addition, a new centre for regulatory innovation will support experimental regulatory approaches, such as sandboxes, pilot projects and iterative co-development with industry and regulators.
Undertaking targeted regulatory reviews will strengthen the government’s ex post evaluation process for regulatory frameworks.
We understand that the committee has expressed frustration regarding the lack of responsiveness to some of its enquiries. We hope that these modernization initiatives could provide departments and agencies with new tools to respond. I know that regulators are working to find ways to address the concerns of your committee in a more timely fashion, while balancing the various portfolio priorities and resource constraints.
Regulating is a collaborative process between departments and agencies, the Department of Justice, stakeholders, Parliament, your committee and the Treasury Board of Canada Secretariat. We all have an important role to play in making sure that Canada’s regulatory system continues to protect the health, safety and environment of Canadians while allowing for economic growth.
Thank you again for your time this morning. I’ll just note that unfortunately I have to depart at nine o’clock this morning. I have another commitment, but I’ll leave you with my colleagues for the rest of the discussions.
The Joint Chair (Mr. Albrecht): Thank you, Ms. Green. So if you leave at 9:00, it isn’t because we insulted you. You were already leaving.
Before the committee puts to you some questions, you have clearly identified the frustrations this committee has dealt with over many years about the lack of speed in responding to some of the concerns that the committee has raised.
In particular, it seems to me this cabinet directive should set the stage for all departments in their response. Of the 10 suggestions that were made by the committee, there’s a very small number that you have implemented or agreed to. I think that’s a level of frustration in itself, before we get into it.
I want to call on committee members to begin with their questions and indicate their concerns. As an overall level of setting the groundwork, this has been something we’ve dealt with at least three years, and probably more like 33, before my time. It’s something that we and you have identified as a collaborative process. We need to work together, and that’s the framework from which we’re coming today to try to address that. It’s a cooperative way to make the system work better. You said it’s world class, and I take your word for that. To us, as committee members, sometimes it appears we could still improve it.
Mr. Dusseault: I want to thank the witnesses for agreeing to appear before our committee. Witnesses often share their frustrations regarding the Treasury Board given the slow pace of the process. Our committee also feels frustrated when it tries to understand why, in this regulatory process — which is supposed to be fast, since the process concerns regulations and not legislation — it often takes years to finalize some cases. Regulations are meant to be more flexible and easier to change when necessary, unlike legislation that involves a more complex legislative process.
However, you’ve accepted our recommendation to issue some directives on the method of incorporation by reference, which is completely appropriate. However, my question concerns the oversight to ensure that departments comply with these directives and use this method of incorporation by reference.
Since our most recent discussions, have you identified a specific number of instances where regulations have been incorporated by reference? If so, how many instances have there been in all the federal regulations? Do you follow up to ensure that, over time, the incorporated documents remain accessible, according to your definition of accessibility? In my opinion, the most important criterion for accessibility is the availability of the documents in both official languages.
I just wanted an update on your oversight to ensure that the documents incorporated by reference remain accessible through the years.
Ms. Green: Thank you for your question. We must ensure that the standards are accessible to departments and stakeholders and to Canadians. That’s why our directive includes the need for standards that are accessible and understandable to stakeholders and to the companies that must apply these regulations.
Our colleagues in the Department of Justice are preparing a list of standards for incorporation by reference.
And we’re looking to work with them as a result of that evaluation. We’re collaborating with them at this point.
Just to reinforce, it is certainly recognized within the cabinet directive the importance of making sure that any standards that are incorporated by reference or regulations are accessible for those companies and those regulated parties who must follow them.
At the same time, we also have added additional reinforcement that those standards and norms have to be easily understandable by those regulated parties. We will continue to work with the Department of Justice as they continue their assessment. We’re committed to working with them in that regard.
It is also stated in the directive that if departments are not able to provide a standard that is accessible, they have to have a strong justification for doing so. We certainly look at those justifications to make sure that departments have provided a suitable justification when they’re bringing forward regulations for consideration by Treasury Board.
Jeannine R. Ritchot, Executive Director, Regulatory Policy and Cooperation Directorate, Regulatory Affairs Sector, Treasury Board of Canada Secretariat: I want to comment on incorporation by reference. We consider this tool very important, and several stakeholders addressed the tool in their comments during the consultations. We fully understand the challenge with respect to incorporation by reference and certain standards.
We want to strike a balance to protect the use of these standards, in particular to encourage free trade and regulatory cooperation, which are also key elements. In the cabinet directive, we brought these key elements to life. We’ll continue to work with our colleagues in the Department of Justice to determine how to strengthen the obligation of departments. However, the obligation to follow the directive remains the departments’ responsibility. The departments must ensure that their actions meet the requirements of the cabinet directive.
Mr. Dusseault: I’d ultimately say that, when the regulations go through your channels, you’re responsible for ensuring that they comply with the enabling legislation and the directives.
Ms. Ritchot: We’re indeed responsible for ensuring that each regulation complies with the cabinet directive. My colleague Rima, who’s in charge of the team responsible for this work, may have something to add.
Rima Hamoui, Executive Director, Cabinet Committee Operations Division, Regulatory Affairs Sector, Treasury Board of Canada Secretariat: I just want to say that we’re working closely with the Minister of Justice, who gives advice to departments on how to draft regulations. This includes advice on whether and how to incorporate by reference. The Department of Justice is responsible for giving advice on how to draft a regulation.
Mr. Dusseault: Thank you.
Mr. Simms: Thank you, everyone. I’m going to continue on that theme.
Yes, we have complained about the lack of responsiveness. It has been mentioned here a couple of times.
One thing you said earlier that I want to ask about is that you have new tools to respond. Could you please describe one of those?
Ms. Green: There are a few things that I’ll highlight.
It has certainly been recognized that it is important for departments to take the necessary steps in developing regulations to make sure they engage properly with stakeholders and do proper regulatory impact analysis. At the same time, we also recognize that there are certain instances where departments should be able to move more quickly to make regulatory changes that are more straightforward, that have a lack of controversy or that are much more acceptable, I guess, from a public standpoint.
There have been a number of initiatives that we’ve put in place. Certainly there is new focus with respect to the Miscellaneous Amendment Regulations update and more rigour, discipline and possibility in that process. Some of the comments that this committee has provided with respect to where you do not have a match in English and French or some elements that are a bit more straightforward, that is a process available to departments to allow them to move forward expeditiously to make those changes.
Mr. Simms: Sorry, I don’t mean to interrupt. I agree with you wholeheartedly on that. That’s not a problem. It’s the more contentious stuff that seems to be mired in — I’m not sure what it is. Maybe someone doesn’t want to answer or somebody wants to put it aside for now so someone forgets. I don’t want to sound nefarious. What I find frustrating in my short time being here is that there isn’t much of a stick by which we can say this is not good, the fact that we’ve waited so long. This is scrutiny of regulations.
It’s like in the House of Commons when the Speaker says, “Order! If you don’t be quiet, I’ll yell ‘order’ again.” Like that works.
When you refer to “new tools to respond,” I want to know the tools you have by which you feel it’s more of a severe punishment for — if I can use that term — any department that does not respond in time. I mean, we’ve gone years on some of these issues.
Ms. Green: Thank you for that.
A couple of things to note is that it is up to departments, as Jeannine mentioned, as to how best to respond to your committee.
As Rima said, as regulations come in for consideration for Treasury Board ministers, we pay close attention to how departments are responding to the recommendations provided by this committee.
You’re right: The MARs process is for the more straightforward issues.
In terms of new tools — you’ll see them shortly because they’ll be posting shortly — for the regulatory reviews done over the course of the last year, those reviews were meant to allow departments to identify areas where they need to update regulations to deal with economic-type realities and think about competitiveness.
At the same time, departments have also —
Mr. Simms: Sorry, could you define “economic realities”?
Ms. Green: Some regulations have been in place for a long time. It is recognized that some are quite outdated in terms of thinking about new technologies, new business processes, new changes within the environment. Regulatory reviews that have been conducted over the course of the last year have allowed departments to make — and you will see this within the next week — a number of proposals with respect to regulatory changes.
One aspect of that review is that departments also to look to see where they can also address some of the comments from your committee. That’s another tool departments now have available to them that wasn’t previously available.
With regard to the Regulatory Modernization Bill, maybe with some of the trickier recommendations that have come from the committee, in some cases legislative changes might be required to address some of the recommendations coming from this committee. Having a Regulatory Modernization Bill offers departments another venue through which they can update their legislative authorities and then subsequently their regulatory stock.
Mr. Simms: With the regulatory changes in this new bill, are you able to tell us about one of the major problems that was happening throughout the years that you feel has been addressed in this new bill?
Ms. Green: One of them is changes to the Textile Labelling Act. Those recommendations had come from this committee previously, and changes are now being proposed in that bill to address the recommendations from the committee. That’s one example of how that bill could be used to facilitate a response to this committee.
The Joint Chair (Mr. Albrecht): The level of frustration is not diminishing. We still see our job as reviewing the regulatory processes authorized by the legislation, and the recommendations we made seem to have been ignored. I’m questioning why we’re going down this road.
Mr. Scarpaleggia: I think Mr. Simms has asked the question that I wanted to ask.
You referred to flexibility for departments to use non‑regulatory tools that might lead to more efficient outcomes in a responsible way. I don’t understand what all of that means.
Ms. Green: One of the elements of the cabinet directive is providing guidance to departments with respect to instrument choice. Even when they bring a regulation forward, they need to explain within their package why regulatory means were decided to be the best means to achieve their objectives.
In making that determination, when an issue has been identified dealing with health, safety or the environment, the department should be sitting down and thinking about how best to achieve the desired outcome. That could, in some instances, be a non-regulatory tool.
I’ve seen, in my career as a regulator within the government, instances where there’s self-regulation by industry. I’ve seen certain industries step up to then address whatever the issue is within their industry association. And other times, departments have put out a challenge to industry to take certain steps to resolve a certain issue. There has been some success in that regard.
So with regulation, because of the time investment that has already been recognized at the table, because of some of the complexity with it, we want to make sure that departments are considering carefully when regulations are required.
Developing a regulation, having a regulation in place has a huge amount of benefit in terms of certainty, predictability and clarity from a compliance and enforcement standpoint for the government. It is up to departments to decide how to weigh the different factors that they’re dealing with to determine whether a non-regulatory or a regulatory path is the one that should be followed.
Mr. Scarpaleggia: Thank you for that explanation.
If the Department of Transport, for example, decides that regulating an aspect of an industry is too cumbersome, or maybe they don’t have the resources to regulate that industry and they decide that the industry should auto-regulate to some extent, is there a requirement for legislative backing to that decision? How does that decision get made? How, for example, would a department decide it’s going to use this flexibility and use a non-regulatory tool?
Ms. Green: It always has to be within the mandate or the scope of a department’s responsibility to be able to conduct that, but it isn’t that it is required. There’s specific legislative authority for a department to enter into a non-regulatory path.
Mr. Scarpaleggia: It’s more of a policy decision, then?
Ms. Green: Yes. It would be.
Ms. Ritchot: We do have a requirement. It’s written right in the general principles of the CDR itself that it is the duty of the Government of Canada to respect Parliament in all instances. So no matter what tool they are choosing, it does have to have a legislative basis, and the CDR is clear on that point.
Mr. Scarpaleggia: Then you mention processes that will allow for departments to move more nimbly to make changes to regulations. Could you elaborate on that?
Ms. Green: I had made some mention of the Regulatory Modernization Bill. That’s a newer feature to allow departments, where needed, to make legislative changes and regulatory changes can follow after that.
In addition, we’re also setting up a centre for regulatory innovation at Treasury Board Secretariat. That is really meant to facilitate departments developing new types of regulatory approaches, sometimes in co-development processes with the regulated parties, to determine how best to set regulations up in a more sustainable manner going forward.
While it is advantageous to have regulations that are obviously clear, predictable and are well understood by those who must follow them, at the same time, having very prescriptive requirements embedded in regulations can sometimes be a challenge.
So it is important to think back to the point of agility and flexibility. It’s important for departments to think about how best to set up a regulatory framework that will have longevity beyond the immediate term.
Mr. Scarpaleggia: How does that differ from the Canada Gazette Part I process of consulting with stakeholders? What’s the difference between what you described and going to Canada Gazette Part I, saying, “Send us your comments and we’ll work with you to develop a regulation”?
Ms. Green: This will be a new thing for us. I will freely admit that. While this type of method in terms of “sandboxing” and the co-development process has been used in other places around the world by other regulators, it is a new endeavour for us. It would be incorrect for me to describe exactly how it might unfold, but the idea is it’s not meant to not be an inclusive process. All of the same principles still need to apply in terms of how the regulatory work will unfold, but it is meant to have more free brainstorming with respect to what that regulatory framework —
Mr. Scarpaleggia: But it wouldn’t bypass Canada Gazette Part I.
Ms. Green: No.
The Joint Chair (Mr. Albrecht): It’s nine o’clock. I’ll let her monitor her watch.
Mr. Shipley: To the comment by Ms. Ritchot, I might be interested in knowing what the definition of “respect to Parliament” is. It’s been such an ongoing issue of parliamentarians to get answers and timelines.
I’m just interested.
In your presentation, you talked about the Cabinet Directive on Regulatory Management being approved and implemented in 2012, and then in 2016 it needed to be reconsidered. Is this a normal review period?
Ms. Ritchot: Typically we have been reviewing the cabinet directive roughly on a five-year basis. So, yes, it is typical that about every five years we start to look at it with a view to the regulatory system changes and the regulatory realities that regulators face. We recognize that it can’t be static in time.
Mr. Shipley: Thank you.
You talked about consultation with Canadians, stakeholders, federal departments, agencies and parliamentarians, and then you ended up in 2017 with 28 submissions. Where did those submissions come from? Do you have the breakdown of which ones came from stakeholders, which came from federal departments and agencies, and also the number that came from parliamentarians?
Ms. Ritchot: I don’t have the specific breakdown in front of me. The submission that came from parliamentarians was the submission that came from this committee. For the 27 others, I don’t have the precise breakdown, but I can tell you the vast majority of them came from businesses or industry associations — regulated parties.
We did also consult federal departments widely through another process that wasn’t in the Canada Gazette. That’s how we got most of our federal department comments.
Mr. Shipley: Mr. Chair, this is my last comment.
I was on this committee almost three years ago. With regard to textile labelling, for example, I read of amendments being made, which means they’re still being done three years later. Could you explain why that is? I understand that it falls under the modernization bill.
Ms. Ritchot: The modernization bill is currently before Parliament. It’s part of the Budget Implementation Act, 2019. The annual Regulatory Modernization Bill is part of the BIA, and the text of these amendments are in that. It is currently before Parliament, so the amendment will only be done, obviously, if Parliament passes the legislation.
As to why it took three years, while we provide tools to regulators to help them sort through recommendations they receive from this committee, it really is up to the individual departments and agencies to set their regulatory agendas, and this is a part of those regulatory agendas. So I couldn’t specifically answer why it took three years.
Mr. Shipley: My concern would be that it’s now three years, so the BIA and then how long?
Ms. Ritchot: I understand. Unfortunately, I can’t answer that question because it will be up to the department to decide how they will prioritize the matters on their regulatory agendas.
Mr. Shipley: That’s the frustrating part.
Ms. Ritchot: I understand.
Mr. El-Khoury: Thank you for joining us today. Do you think that it’s important to react quickly upon discovery of a regulation that isn’t authorized by enabling legislation? In this type of situation, what’s the reason for not applying the exceptional exemption process?
Ms. Ritchot: I think that you asked two questions, so I’ll address them separately.
With regard to the first question, I must tell you that it’s not really my role to give legal advice, so I can’t respond. I’m not trying to make things difficult for you. It’s just a fact. I can’t give legal advice.
With regard to the second question, which I gather concerns exceptional circumstances, you’re wondering in what situation we can use a —
Mr. El-Khoury: In what situation can we ensure that the exceptional exemption processes don’t apply?
Ms. Ritchot: First, there are exceptions to exceptional circumstances for exceptional circumstances. The exceptions can’t apply to all regulations. A department doesn’t determine when it can apply them. The department will work with us — the Treasury Board Secretariat — with my colleague Rima’s team. An analysis will be conducted and a recommendation will be made to the Treasury Board.
However, exceptional circumstances and possible exemptions aren’t covered in each regulation, but rather in cases that pose a real risk to the safety and health of Canadians.
Mr. El-Khoury: Who decides?
Ms. Ritchot: The Treasury Board will decide.
Senator Duncan: My question follows up on that of my colleague. I’m new to this committee. I’m very concerned with the comment and the number of times that there are regulations that don’t have legislative authority. I’ve heard you talk about new types of approaches and parliamentary oversight. Can you outline specific steps that have been undertaken to deal with this situation? If there’s no legislative authority, how are these regulations getting through?
Sorry, this is a person off the street with a question.
Ms. Ritchot: Please don’t apologize. I appreciate the questions, because I know these have been long-standing concerns. I may ask Rima to also jump in here.
I’ll go back to something Tina said in her remarks about regulation being a collaborative process. It’s not just the Treasury Board of Canada Secretariat that has a role to play; it’s the departments that have the idea that necessitates a regulation. It’s the Department of Justice that advises them throughout that process, from providing legal advice on the policy idea, all the way through to drafting and registration. It’s parliamentarians, such as this committee. It’s stakeholders. It’s a complex process that involves many players.
When it comes to ensuring that a regulation has legal authority, that’s clearly outlined in the Statutory Instruments Act as a requirement. We pick up on that in the cabinet directive and make sure that regulators understand that. The “Roles and Responsibilities” section in the cabinet directive points to the very important role that our colleagues at the Department of Justice play in providing advice and making sure they meet that requirement.
The role this committee plays, I would say, is another important way to ensure that oversight function is taking place in making sure that if something happens along the way that puts a regulation offside with legislation, this very important body also provides its scrutiny.
It’s a bit of a team sport, if I can put it that way.
Rima, I don’t know if you can say anything about how the Department of Justice interacts in the reg development process.
Ms. Hamoui: I would give a general explanation as to our role.
The cabinet directive sets out the key principles that a department is to take to guide their activities when they are ready to regulate. In order to regulate, they have to have the legal authority to do so. That determination is done between the department and their legal counsel. The clear scope of the legal authority to take a regulatory action has to be well defined and well understood. The department has to function within the parameters of that legal authority.
That’s really the starting point. Without that legal authority, the cabinet directive would not be able to kick in. You need that to start off.
From that point on, should the committee or others — perhaps the courts — find that there is a lack of authority for a particular regulation that was made, it is up to that department, in consultation with their legal counsel, to assess that. They are best placed to assess that recommendation and to determine how best to respond to it in terms of what changes are needed to that regulation. That’s a little bit of that collaborative work.
So for us, the cabinet directive only kicks in when there’s actually that legal authority to regulate.
Senator Duncan: I understand the process. I get that part. Thank you for the explanation, but I’m truly alarmed by the comment that “with some frequency we encounter situations in which regulations are made without authority.” How do they get out of the gate? How do they get here if they don’t have that legislative authority?
Ms. Hamoui: Again, if that is found to have occurred, a corrective action needs to be taken. Every action a department takes would be taken on the advice of legal counsel that a legal authority exists.
The Joint Chair (Mr. Albrecht): Looking to summarize, we have here a new cabinet directive to help our departments implement the regulatory process and make it more efficient. We have the MARs process and the regular full process. Many of these are taking up to 10 years to address the questions raised by our committee.
It would seem to me that under a new cabinet directive, when you are searching for input, you search for that from various department people across Canada, including parliamentarians, who said today many times that we’re part of the process. You’ve also said that you respect parliamentary supremacy. Yet out of 10 recommendations that this committee made, you chose not to implement about eight of them.
I don’t understand why it would be so difficult to move forward on some of the recommendations that this committee, along with its counsel, has. We’re the ones primarily charged with making sure the regulatory process is being followed properly.
Can you answer for me how long the regulatory process should take in terms of amendments or how long the MARs process should take? We’re facing many years of delay.
If the cabinet directive could address some of those and encourage us or at least give us hope as a committee that we’re going to get better, that’s what we’re looking for. We don’t have any tools today to use disallowance and say you can’t use the new cabinet directive, but we want some assurance that things will get better.
That’s where the committee is frustrated. I see general agreement around the table.
Ms. Hamoui: Thank you for the question. I certainly understand the frustration at the length of time it can take to make a regulation. I think we hear that often.
I would simply state that it is incumbent upon every department to respond to any parliamentary committee. It is part of their accountability to do so. How they choose to respond to that committee is up to them, and they are best placed to determine that. When it comes to the regulatory world, they are the experts on their regulations. The committee will make recommendations. They are to review those recommendations and determine how best to respond to them, including whether to make regulatory changes.
At the Treasury Board Secretariat, our role is to work with a department when they have determined they are ready to regulate. We cannot compel them to regulate or force them to regulate in a particular way. We work with them when they are ready to regulate in order to ensure the principles of the cabinet directive are followed.
In instances where a regulatory change is not impactful, it doesn’t change regulatory behaviour to clean up the text of a regulation. This committee has made numerous recommendations to improve the text of a regulation. In those instances, we provide a facilitated process, a MARs process, if you will, where you can avoid a lot of the requirements of consultation, a much shorter RIAS , no prepublication, and we process those fairly quickly through the board.
In instances where the committee has made a substantive recommendation and addressing that recommendation will entail changes by regulated parties, it will be impactful. We expect that department to consult with the regulated parties to ensure they are doing it in the most efficient and effective way possible.
There are different types of recommendations that the committee does, and each one will take a different type of process. Our role is to work with the department when they’ve determined they are ready to regulate in response to a committee recommendation, whether this committee or another one.
The Joint Chair (Mr. Albrecht): I think in this instance you’ve chosen to ignore at least eight of the 10 recommendations this committee made after extensive study. We’re just trying to improve the process. It seems like you’re ignoring those. That is the point you’re missing.
Mr. Dusseault: I have one last question.
We were talking about the legal authority for departments to make regulations or orders-in-council, and the committee’s role in ensuring that these regulations and orders-in-council are made under a legal authority.
In your opinion, to ensure that our committee can carry out the best work possible, should departments help by providing basic information, namely, the specific section used to make regulations or orders-in-council? As a result, we could properly determine whether the regulations or orders-in-council have been made under the necessary legal authority. At the Treasury Board, do you think that the committee should have this key information to carry out its work, meaning the specific section of the legislation that makes it possible to establish a regulation or order-in-council?
Ms. Hamoui: Often, the regulations are drafted in such a way as to identify the legislation and the specific section under which the authority was given to draft them. So it’s related to the drafting of the regulations, which refer to the legislation.
Mr. Dusseault: Yes, but in some cases, regulations or orders-in-council don’t necessarily refer to a specific section or to specific paragraphs of the legislation. The committee must ask departments about the basis for making the regulations or orders-in-council. Sometimes, certain departments aren’t very helpful when it comes to providing this explanation. In your opinion, is this key information for our work?
Ms. Hamoui: This information should certainly be available, absolutely.
Mr. Dusseault: Thank you.
The Joint Chair (Mr. Albrecht): Any further input or questions from the committee?
Thank you for being here today. I hope you will take back to the department the high level of frustration around the process in general and, specifically to that, the many instances where we have had years and years of what we consider to be unacceptable delays. I think that’s where we have to leave it today. Thank you again for being here.
I’m going to look to our counsel to give us recommendations as to how we proceed with the item that we just discussed so we can either close this file or whatever.
Cynthia Kirkby, Acting General Counsel to the Committee: The question would be to ask members how to proceed. It seems the cabinet directive has already been finalized. It seems unlikely any of the recommendations will be incorporated at this point.
However, none of this affects the powers of the committee. The committee can still proceed in its usual fashion even though its recommendations weren’t reflected in the cabinet directive.
Do members wish to close the file, or is there some other method of proceeding?
Mr. Benzen: I think they didn’t answer our questions. The gist of this committee is not to decide if a regulation is good or bad. It’s simply to say that we found something wrong, and it needs to be fixed and quickly. They have not put any timelines in or any effort to do that.
I think we disallow every bill going forward. They’ll get the idea we’re serious, that they have to fix these things fast and that they’re not going to take 10, 15 or 20 years.
We’ve given them opportunities to put timelines in. They talk about innovation and toolboxes and all of that, but none of that was addressing our major concern. We have found a problem. Just go back and fix it as quickly as you can.
Expedite these things, because maybe they’re illegal. Maybe they do not have any authority. Get this done quickly.
They just want to push back and delay and delay.
What is the only tool we have to get their attention and make them do something? How many times does a minister ignore a letter and not respond to us? There’s no response, no response and then we get frustrated.
I think our committee needs to be tougher and stronger, and we just start disallowing quickly and all the time. Then we will see changes made.
Those would be my thoughts on this.
The Joint Chair (Mr. Albrecht): That would be the suggestion from the committee in dealing with individual files that come before us going down the road. But in regard to this specific cabinet directive, we’re not dealing with it as a normal item. This was input that we had given, that was solicited. Most of it was ignored. However, we made our point, I believe, and going forward we can deal with individual cases more stringently and quickly.
Mr. Dusseault: My opinion is that we can close the file given that the directive was published. There’s nothing more we can do to influence the directive itself.
The Joint Chair (Mr. Albrecht): All agreed to close the file?
Hon. Members: Agreed.
APPEARANCE OF WITNESSES FROM GLOBAL AFFAIRS CANADA
SOR/2015-220 — ORDER AMENDING THE EXPORT CONTROL LIST
(For text of documents, see Appendix B, p. 51B:1.)
The Joint Chair (Mr. Albrecht): I’ll ask witnesses from Global Affairs Canada to come to the table. Welcome.
Ms. Kirkby: I’ll just mention for members’ benefit that on this next file, we have the assistance today from employees from the law clerk’s office of both the Senate and the House of Commons — in case there are specific questions about how to proceed if the witnesses, again, do not answer the question asked.
The Joint Chair (Mr. Albrecht): Mr. Verheul and Mr. Moen, thank you for being here. Welcome.
As you know, we’ve been dealing with this situation for a number of weeks. We had people from your department here a week or so ago. We did not find their answers satisfactory, so we have invited you to appear before us.
If you have an opening statement, Mr. Verheul, please proceed.
Steve Verheul, Assistant Deputy Minister, Trade Policy and Negotiations, Global Affairs Canada: First of all, good morning, Mr. Chair and members. I appreciate the invitation from the committee to appear before you. I’m accompanied by Martin Moen, Director General of North American Trade Policy in my group. He is also the lead negotiator on softwood lumber issues and has been for some time.
I’m here today to discuss Global Affairs Canada’s administration of the Softwood Lumber Export Permit Monitoring Program, including the issuance of export permits for softwood lumber and the relisting of softwood lumber on the Export Control List.
The Government of Canada is currently in a period of active litigation with the United States. This litigation includes legal challenges to the U.S. Department of Commerce’s anti-dumping and countervailing duty determinations at the WTO and under NAFTA’s current Chapter 19. It also includes annual reviews the U.S. Department of Commerce conducts to reassess the amount of alleged subsidization and dumping of softwood lumber.
The maintenance of a reliable and continuous source of data collected through the issuance of export permits for softwood lumber is critical to any future negotiations between Canada and the United States to resolve this dispute. This economic and trade data ensures that the Government of Canada is able to formulate accurate positions in these negotiations on issues such as U.S. market share.
Having accurate and reliable data also ensures that the United States is not able to discredit Canadian positions and maximizes our ability to provide sound, evidentiary-based arguments. The relevant provincial governments and industry associations all support the maintenance of the export permits regime for softwood lumber for these reasons.
In 2015, Global Affairs Canada amended the Export Control List to ensure that it could continue to monitor the exports of softwood lumber products following the expiry of the 2006 Softwood Lumber Agreement. The Order Amending the Export Control List was made pursuant to an enumerated purpose set out in subsection 3(1) of the Export and Import Permits Act.
I understand that the committee is interested in discussing the enumerated purpose pursuant to which softwood lumber was relisted on the Export Control List. This is a sensitive issue that we would be prepared to discuss, but to do so, we would prefer to do that in camera.
The Joint Chair (Mr. Albrecht): Thank you, Mr. Verheul. To do that, we will need a motion from the committee to move in camera. I will read the actual wording of the motion, and Mr. Badawey may be prepared to move it.
It is moved:
That the committee now proceed to sit in camera;
That, notwithstanding usual practice, committee members’ assistants be allowed to remain and that witnesses from Global Affairs Canada be instructed to remain and provide testimony;
That, notwithstanding the usual practice, two parliamentary affairs officers from Global Affairs Canada be allowed to remain;
That the committee allow the transcription of today’s in camera meeting; and
That one copy be kept in the office of General Counsel for consultation by committee members.
Are you prepared to make that motion?
Mr. Badawey made the motion. Any discussion?
All in favour of moving in camera? Opposed? That is carried.
(The committee continued in camera.)
(The committee resumed in public.)
The Joint Chair (Mr. Albrecht): This will be probably be a few minutes at the most. We look to counsel regarding “Statutory Instruments Without Comment.”
SOR/2018-7 — ORDER 2018-87-01-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2018-20 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2018-23 — ORDER AMENDING SCHEDULE 1 TO THE ACCESS TO INFORMATION ACT (OFFICE OF THE ADMINISTRATOR OF THE FUND FOR RAILWAY ACCIDENTS INVOLVING DESIGNATED GOODS)
SOR/2018-24 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT (OFFICE OF THE ADMINISTRATOR OF THE FUND FOR RAILWAY ACCIDENTS INVOLVING DESIGNATED GOODS)
SOR/2018-34 — REGULATIONS AMENDING THE ALBERTA FISHERY REGULATIONS, 1998
SOR/2018-36 — UNITED NATIONS UNIVERSITY INTERNATIONAL NETWORK ON WATER, ENVIRONMENT AND HEALTH – PRIVILEGES AND IMMUNITIES ORDER
SOR/2018-40 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
SOR/2018-44 — ORDER 2018-87-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2018-45 — ORDER 2018-112-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2018-46 — ORDER DECLARING AN AMNESTY PERIOD (2018)
SOR/2018-54 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996
SOR/2018-56 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (MOTOR VEHICLE EXPENSES AND BENEFITS 2017)
SOR/2018-67 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2018-80 — REGULATIONS REPEALING THE CHLOR-ALKALI MERCURY LIQUID EFFLUENT REGULATIONS
SOR/2018-117 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS
SOR/2018-161 — ORDER AMENDING SCHEDULE I.1 TO THAT ACT
SOR/2018-162 — ORDER AMENDING SCHEDULE I.1 TO THAT ACT
SOR/2018-172 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SHUSWAP)
SOR/2018-173 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (SHUSWAP)
SOR/2018-174 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (PAUL)
SOR/2018-175 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (PAUL)
SOR/2018-180 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2018-181 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (BIINJITIWAABIK ZAAGING ANISHINAABEK)
SOR/2018-187 — ORDER AMENDING SCHEDULE III TO THE FINANCIAL ADMINISTRATION ACT (CANADA POST CORPORATION)
SOR/2018-192 — ORDER AMENDING SCHEDULE I.1 TO THAT ACT
SOR/2018-199 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (WOODSTOCK)
SOR/2018-200 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (WOODSTOCK)
SOR/2018-211 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SAIK’UZ)
SOR/2018-215 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (WHITEFISH RIVER)
SOR/2018-234 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2018-235 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2018-247 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA LABOUR CODE
SOR/2018-260 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2018-265 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (STS’AILES)
SOR/2018-266 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (PEGUIS)
SOR/2018-267 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (PEGUIS)
SOR/2018-272 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS
SOR/2018-273 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS
SOR/2018-274 — REGULATIONS AMENDING THE SPECIAL SERVICES AND FEES REGULATIONS
SOR/2018-280 — REGULATIONS AMENDING THE METAL AND DIAMOND MINING EFFLUENT REGULATIONS
SOR/2019-8 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (MAKWA SAHGAIEHCAN)
SOR/2019-9 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (MAKWA SAHGAIEHCAN)
SOR/2019-14 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (ROSEAU RIVER ANISHINABE FIRST NATION)
Ms. Kirkby: For the record, there are 43 instruments listed today under “Statutory Instruments Without Comment,” which have been reviewed and found to comply with all of the committee’s criteria. If members wish to consult these documents, I brought copies with us.
The Joint Chair (Mr. Albrecht): There is no further business to deal with today.
Our next meeting is next week. We’re making it easy.
Mr. Simms: Mr. Chair, I brought this issue up some time ago. I’m talking about the distribution of all the documents we receive. I appreciate all the paper that you’ve given me. I usually do read from paper, but there’s a lot I don’t use. In particular, for this week, there’s that much that I did not use, and we all received this.
Call me 21st century. I hope a motion isn’t required, but can we just receive all this stuff electronically in the future? That way, I can choose to print what I want to read. I tend to read the English part because I can comprehend that much better. That’s no offence to anyone who is a francophone.
Wouldn’t receiving this electronically be a lot more efficient and less wasteful? I’m looking for why we do this.
The Joint Chair (Mr. Albrecht): Our clerk has a comment he’d like to make on that.
François Michaud, Joint Clerk of the Committee: Thank you, Mr. Simms. You did mention that a couple of weeks ago. It’s definitely on my radar. It’s something I want to work on and I ask for your patience.
There could be unintended consequences that we want to avoid. Thus, for me, this is a summer project, and in the next Parliament we’ll try to have a better way to do things.
Mr. Simms: Can I inquire as to what unintended consequences there would be? I’m not trying to be a smart-ass about it.
Mr. Michaud: I’ll bring you my list in the fall.
The Joint Chair (Mr. Albrecht): He’ll bring a list of potential unintended consequences when we return to the issue.
Mr. Simms: Do we need to go in camera about this? I’m not trying to be flippant. I just don’t want to get all this paper. I’d rather get it electronically.
Mr. Michaud: We’ll work on that.
Mr. Simms: Is there a reason why?
Mr. Michaud: Would you agree it would be a nice summer project? This committee has two more meetings, so I think we’ll be fine.
The Joint Chair (Mr. Albrecht): I think we generally share your view, Mr. Simms. Yes, the background material is helpful, but especially in a language that isn’t our first language, it is not necessary. Does that create more difficulty in terms of producing it? I don’t know the answer to that.
I think there’s general agreement by the committee to do anything we can do to reduce the amount of paper but still have sufficient information to do our job well.
With that, thank you.
(The committee adjourned.)