REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Monday, February 12, 2024

The Standing Joint Committee for the Scrutiny of Regulations met with videoconference this day at 11:06 a.m. [ET] to review Statutory Instruments.

Mr. Dan Albas and Senator Yuen Pau Woo (Joint Chairs) in the chair.

[English]

The Joint Chair (Senator Woo): Good morning, everyone. This is our first Scrutiny of Regulations meeting of the for 2024. I am hoping to get a lot of work done over the next few months.

Let me start by welcoming two new permanent members of our committee: Mr. Denis Trudel, in person; and Mr. Gord Johns, online, who has been on our committee many times but who is now a permanent member. Also joining us on a temporary basis, perhaps, are MP Pam Damoff and MP Nathaniel Erskine-Smith. They are online. Welcome, all, to our committee.

Before I get into the agenda, I believe Mr. Davidson would like to make an announcement. Over to you.

Mr. Davidson: Thank you, Mr. Chair. Good morning, colleagues. We have someone who is not with us today who has retired and is moving on from the Senate. I just want to give a shout-out to Senator Boisvenu, who has been a tireless advocate for victims’ rights. I want to thank him for his service to Canada. I know the senator is watching intently right now. We’d love to see him sooner than later; maybe he can come over and help us out in that green chamber. I know he will have the time to do that. We would love to see it.

Again, senator, thanks for everything you have done for Canada. Thank you for your service. And thank you, Mr. Chair, for allowing me this opportunity to say so.

Hon. Members: Hear, hear.

The Joint Chair (Senator Woo): Thank you for that. It will go on the record. I presume you heard his departing speech in the Senate where he signalled his desire to not leave the precinct, so we shall see.

Mr. Davidson: Just throwing it out there.

The Joint Chair (Senator Woo): Colleagues, before we go into the agenda, I want to take a few minutes to address an issue that might have come to your attention. It has to do with an article in The Hill Times that was published over the holidays by a former clerk. I think she spent a little time on this committee but not recently. We won’t go into the details, and I don’t really want to have a discussion, but I want you to know that we are aware of the article. It was a critical article, questioning the practices and the progress of this committee, as well as the lack of modernization, if I can put it that way.

I will just say at this time that she is not and has not been privy to the work of the committee for a very long time and is certainly not aware of the extensive modernization and reform efforts that our legal counsel team have been working on for many months now.

We intend to have a presentation on the modernization efforts soon. We can then have a bigger discussion about how this committee deals with the new reality of the overwhelming number of regulations that we have, how we prioritize and so on. I want all of you to know that your joint chairs and the legal counsel team are aware of these issues. We are working on them and we will report back to you very soon.

With that, let’s go to the agenda. I will invite Geoff Hilton to start.

SOR/2014-176 — STATUS OF THE ARTIST ACT PROCEDURAL REGULATIONS

SOR/2014-242 — REGULATIONS AMENDING THE STATUS OF THE ARTIST ACT PROCEDURAL REGULATIONS

(For text of documents, see Appendix A, p. 15A:1.)

Geoffrey Hilton, Counsel to the Committee: All 40 issues raised with the Canada Industrial Relations Board in 2014 have yet to be addressed and it is not known when they will be addressed. Many of these issues relate to various drafting matters while others are more substantive in nature relating to the operation of the regulations.

Early in the correspondence with the board, the committee encountered considerable difficulty obtaining confirmation of when certain promised amendments would be made as well as more information on 18 substantive issues that required further clarification from the board — so much so, that when the committee first considered this file, in 2017, members directed the joint chairs to write to the Minister of Employment, Workforce Development and Labour, with the board in copy, expressing the committee’s frustration with the board’s reluctance to engage in any meaningful manner with the committee and requesting that the minister ensure the board’s unresponsiveness no longer continue.

The minister responded by explaining that the board, as an independent administrative tribunal exercising quasi-judicial powers, operates at arm’s length from the government, so it would be inappropriate for her to intervene in the conduct of the board’s affairs.

Following the minister’s response, letters to the board were sent in 2020 and 2022, again seeking more cooperation from the board in advising when the promised amendments would be made and in providing a further response to the other 18 substantive issues.

Later, in August 2022, committee counsel and the chairperson of the board spoke in a teleconference in which the chairperson expressed some willingness to appear before the committee to discuss the matters in this file and advise that a formal response to the committee’s recent letters would be forthcoming. That letter was received in October 2022 and, in short, does not provide any further response on the 18 substantive issues nor a firm timeline for when the promised amendments will be made. Rather, the board’s response simply provides information on recent developments in its work, noting that it still has never received any complaints concerning the interpretation or application of the regulations and that, since the regulations’ enabling authority — the Status of the Artist Act — was under study by the House of Commons Standing Committee on Canadian Heritage, amendments to the act could be forthcoming, and so, it would not be prudent at that time to dedicate any of its limited resources to reviewing the regulations.

As summarized in the briefing note prepared for members, there are multiple issues with the board’s response. First, it was previously acknowledged to the board that the committee is aware that the board may not possess the same level of resources as those of government departments but the board, again, does not seem to understand that it still has a responsibility to ensure that its regulations meet a certain standard even if it has never received any complaints from the public or its stakeholders.

Second, there is again still no commitment from the board to address or even provide further information on the 18 substantive issues despite now five letters from the committee on this point.

Third, the Heritage Committee study referenced by the board concluded its study in March 2023 and ultimately recommended that the status of the artist act undergo a substantive review. While potential amendments to the act which might have an impact on the board’s regulatory powers, could justify some delays in making the necessary regulatory amendments, the review of the act should not be used as a blanket excuse to postpone indefinitely any review of the regulations for the sake of convenience — especially now, since the government, in response to the Heritage Committee report, declined to undertake a review of the act.

The board concludes its letter by then vaguely indicating that it has been in contact with the Department of Justice concerning its previously promised amendments and that it would keep the committee informed of any developments. To date, though, no further developments have been provided.

Altogether, it remains clear that the board does not seem to treat the committee’s work with any sort of importance and its continued reluctance to cooperate in the resolution of the committee’s concerns is preventing the committee from fulfilling its statutory mandate to review and scrutinize regulations.

Nearly a decade since these files were first opened, the committee’s concerns are no closer to being resolved. This brings us to how members would like to proceed. One option is to send a letter to the board specifically requesting, again, more information on the 18 substantive issues as well as a firmer timeline for when the other previously promised amendments will be made; another option is for the chairperson of the board to be invited to appear before the committee to discuss the current state of these files.

The Joint Chair (Senator Woo): Thank you, Geoff.

Senator Dean: I suspect I’m speaking for all of us when I say that in light of the history here, there is an obvious way to go here, namely, the second option. This seems to be one of the easiest decisions that this committee has reached for some time. I will leave it at that.

Mr. Davidson: This sounds like Groundhog Day again to me — with this committee — and people ignoring Scrutiny of Regulations. This question is for either the chair or our counsel. Who is accountable here?

The minister has said that it’s arm’s length. Someone is accountable for this committee. Quite frankly, if the chair will not appear in front of this committee, or come to this committee, or hasn’t responded to any of these letters, then we should have the minister come here. Someone has to be accountable to Canadians. I think Canadians are looking for accountability.

Option 2 for sure. I think we have to be very strong on someone getting back to us. If there is any delay to that, I think we should have the minister appear here, at committee, on their behalf. I don’t know if this position is appointed by an order-in-council. To have a chair act like this is unacceptable to Canadians.

The Joint Chair (Senator Woo): Thank you, Mr. Davidson.

[Translation]

Senator Dalphond: I have a specific technical question, but before I ask it, I’ll provide a little background.

I have the Status of the Artist Act here. Regarding regulations, section 56 provides that:

On the Minister’s recommendation after consultation with the Minister of Canadian Heritage, the Governor in Council may make regulations prescribing anything that may be prescribed under any provision of this Part, and any other regulations that the Governor in Council considers necessary to carry out the provisions of this Part, other than regulations that may be made by the Board under section 16.

Section 16 of the Act states that the Governor in Council may make regulations on many things, except those set out in section 16. Further on, section 16 of the Act reads as follows:

The Board may make any regulations that it considers conducive to the performance of its duties under this Part, and in particular…

(a) the practice and procedure…

I understand that what is at stake here are the rules of practice and procedure of this administrative tribunal. Therefore, pursuant to the Act, the power to make regulations belongs not to the government but only to the board.

I understand that the board is an independent quasi-judicial body responsible for adjudicating disputes or complaints between a party covered by the law — in this case, an artist — and another party, and by other acts, such as the Canada Labour Code.

I would like someone to enlighten me on the powers that we have under the Act to review this tribunal’s practice and procedure. For example, the Federal Court also makes rules of practice for its hearings, but I would be very surprised to learn that we can summon the Chief Justice of the Federal Court to testify about words that would be different in French and English. I would like to know by what authority we could summon the chair of an independent tribunal to tell them how to write that tribunal’s regulations.

[English]

The Joint Chair (Senator Woo): And I will ask them to respond, but perhaps I can get through the set of comments from members.

Mr. Noormohamed: I would agree with some of what Mr. Davidson has said. I think it is unacceptable that the committee is ignored in this way. I think it is unacceptable that the unsatisfactory responses are met with an unsatisfactory means by which to respond to the unsatisfactory responses. It is also important for us to make sure we remember that there is independence between the minister and the board. We’re now talking about the Minister of Labour, who is technically the minister responsible for this board.

I think we should be making sure that it’s the correct minister we’re addressing this to, if we decide to go down this road, and that we are cognizant of the precedent it sets in terms of the committee seeking political interference in regard to the function and response of an independent board. I’m not sure that is somewhere we want to go, but I would absolutely encourage us to use all of the power that this committee holds to ensure that the chair of this board shows up and answers some pretty difficult questions.

Mr. Louis: I’m looking to see if we can do some sort of hybrid. I think we all agree that the chairperson of the Canada Industrial Relations Board should be appearing, but is there a way that we can write a letter asking what they are doing before they appear? Then they don’t come in and kick the can down the road. If we can ask them to submit something to say what they intend on doing, then we can follow up in our questioning with that.

I sat on the Canadian Heritage Committee and I was part of that report, which took a long time, to help artists through the pandemic was a pivotal thing. The Status of the Artist Act has been a long time updating. I know that the government is saying that they are updating it, but I don’t want that to stop this committee from making sure that there is some kind of accountability from the industry board. If there is a way we can write something to compel them to give to information so that when the chairperson comes to testify, we can drill down a bit more and not ask where we are at.

The Joint Chair (Senator Woo): You don’t want the chair come and simply say, “I will take this away and get back to you.” Got it.

Mr. Hilton: On that point, regulations made by the board still fall under the type of statutory instruments that would be permanently referred to the committee; they re captured under paragraph b(ii) of the definition of “statutory instrument” in the Statutory Instruments Act. Counsel can, of course, conduct more research and come back with a more fulsome response, but upon first glance, these regulations would still be referred to committee.

Senator Dalphond: The regulations adopted by the Federal Court about the procedures before the Federal Court could be reviewed by this committee. That is where I would like you to go a bit further and review what may be a statutory instrument pursuant to the spirit of this legislation.

The Joint Chair (Senator Woo): Are you satisfied, Senator Dalphond, that in this particular case with the Labour Board that we have the power to invite the chair to come and address the questions that we have been pursuing for a number of years? Option 2, in other words.

Senator Dalphond: If it is an invitation to come and appear and describe their mandate, it is something that would be useful for information. Before we try to force them to do something, I would like to get an opinion about the power to compel an independent judicial body or quasi-judicial body that has the power to adopt regulations according to the law. That power was granted by Parliament, not to the Governor-in-Council but to that tribunal, and Parliament has also made that tribunal fully independent from the executive and from Parliament. I would like to make sure that we have the power to compel changes or to insist upon changes that belong to an independent body.

The Joint Chair (Senator Woo): I will ask Mr. Davidson in a second, but can I ask counsel first whether the board has ever challenged our authority to request changes to the regulations? Because we have been in correspondence with them for a number of years.

Mr. Hilton: On this particular file, they have not challenged.

The Joint Chair (Senator Woo): They have not. Okay.

Mr. Davidson: I appreciate Mr. Louis’s comments. I think we’re to the point where if we looked at, when we had Minister Blair here last time — how many letters have been sent out now? Do you have a total number of letters? Five letters have been sent, and there is no action from this board or chairperson. I would call that strike five , and I think many Canadians in the business world would call that unacceptable. If we are sending another letter, I would use registered mail on this one — with a reply within 7 to 14 days — to the chair saying that they have to reply and they have to appear in front of the committee.

All I am saying to the committee is that if the chair refuses to come to this committee or doesn’t reply to a demand letter to come here, our only choice that seems reasonable would be to have the minister here. Someone has to be accountable. Colleagues, there are French and English discrepancies in the regulations that have not been fixed, and we have seen how people have interpreted French and English interpretations wrong. I think it is incumbent for us to fix that for Canadians immediately.

The Joint Chair (Senator Woo): Are there any other comments or questions? I think we’re landing on option 2. There is a question of whether we can compel them. Senator Dalphond, would you be agreeable to us making the request that they come for the purpose of explaining this to us?

Senator Dalphond: Certainly, I have no objections that we invite them. Repeating what I said — and I strongly disagree with what you said — you cannot force the court, i.e., the Federal Court. If the rules of practice in French and English are having a problem, that’s up to the court to fix it and not Parliament, unless you want to pass a law. This committee is not overseeing neither the Federal Court nor the Minister of Justice.

The same would be true for an independent labour board. The Minister of Labour is not overseeing that board. He may recommend people to be appointed to the board, Governor-in-Council would do the appointments, but the ministers cannot direct them to make changes to the regulations. Otherwise, it is no longer an impartial arbitrator that is making its own rules to facilitate its work. We decided to make it independent, so we have to respect what we want to achieve.

The Joint Chair (Senator Woo): Legal counsel will undertake to provide an opinion on this question.

Mr. Davidson: Thank you, senator, I appreciate that. I think that ministerial responsibility is an important part of our democracy. I don’t look at it, in this case, as political interference. We have a chair of a board who is not responding to Canadians. I leave it at that, colleagues. I think that’s a reasonable request.

The Joint Chair (Senator Woo): I think we have all landed option 2. Maybe the question is what kind of runway we want to give them. Do you have a specific suggestion as to how soon we expect them to appear?

Mr. Davidson: A helicopter. No runway.

The Joint Chair (Senator Woo): As soon as possible. March 18, okay. Agreed? Thank you.

That deals with item 1, which I will note was put under the category of “Reply Unsatisfactory,” perhaps most unsatisfactory, but that was the only item under that category.

The next set items are headed as “Reply Satisfactory,” and I believe Mr. Hilton will continue.

SOR/2017-285 — REGULATIONS AMENDING THE NUCLEAR LIABILITY AND COMPENSATION REGULATIONS

(For text of documents, see Appendix B, p. 15B:1.)

Mr. Hilton: This is the first time this file is being presented to this committee. At issue was the coming into force provision of these amending regulations, which provided, in part, that these amendments were to come into the force on the day that the permit to abandon the SLOWPOKE-II reactor at the University of Alberta is issued by the Canadian Nuclear Safety Commission.

The coming-into-force provision then went on to specifically describe that permit as being published on the Canadian Nuclear Safety Commission’s website. Upon checking the commission’s website, only the issuing date of the permit had been published and not the permit itself as required by the coming-into-force provision. This therefore raised questions as to whether the coming-into-force provision had valid effect. The Department of Natural Resources eventually agreed with this apparent discrepancy, but later indicated that there were still some legal uncertainties as to whether it was even possible to amend a coming-into-force provision that was now spent, meaning, whose purpose and operation had been carried out.

The department’s most recent correspondence, from December 2021, indicates that it has determined that no amendment would be made to correct the issue because the coming-into-force provision is spent, and that the erroneous reference to the publication of the permit on the commission’s website did “. . . not create an obligation or a condition that would have affected the coming into force” of these amending regulations.

In its response, the department is correct that the coming-into-force provision in these amending regulations was spent once its function was fulfilled. In such cases where a spent provision requires some amendment, the only possible remedy would be for some retroactive enactment.

Since, though, there is no authority in the regulation’s enabling act, the Nuclear Liability and Compensation Act, to enact a retroactive amendment, a bill in Parliament would be necessary to correct this issue. This, however, is an extraordinary remedy and, in fact, it may not be strictly necessary.

As the commission suggests in its December 2021 response, the publication description in the coming-into-force provision, while factually incorrect, is only descriptive.

There is, at the end of the day, no ambiguity as to the identity of the relevant permit or the facility to which it relates, nor is there any uncertainty regarding the actual date of coming-into-force, given that the date that the permit was issued by the commission is known and publicly available.

Members may also wish to know that a subsequent amending regulation made in 2021 did not include a publication description like the one found from this amending regulation, so it appears that the department has considered the committee’s concerns and took the necessary steps to avoid the problems raised in this file from arising in the future.

Altogether, it is open to members to consider the commission’s response as satisfactory and close the file.

The Joint Chair (Senator Woo): Colleagues, do you agree that this is a satisfactory reply and therefore needs no further action?

Senator Dean: I was delighted to see the term “slowpoke” mentioned here, and I would point out that that might be better applicable to agenda item 1 than this one. That’s all.

The Joint Chair (Senator Woo): We will put that in the glossary of terms.

Mr. Allison: I suggest we close the file. Is there any need to write a letter in terms of our position, or is the committee happy with what’s happening?

I understand what the counsel has given us, and I think you guys always do a great job. So if the committee is happy with that, we can leave it at that, but I wonder whether a letter just pointing out some of these things going forward would make some sense.

As I said, I see they’ve corrected themselves, so I’ll leave that to the will of the committee.

The Joint Chair (Senator Woo): There may be a logic to close it up. Please, Mr. Hilton.

Mr. Hilton: As a matter of practice, whenever the committee closes a file, committee counsel sends a letter to the department or agency in question advising them that the committee had considered this file and it considered the department’s response satisfactory and that the file was now being closed. Of course, any other comments that members may have can be included in that closing letter.

The Joint Chair (Senator Woo): That’s what we shall do then, close the file with a letter saying so.

Let’s move to the next item which has the heading, “Reply Unsatisfactory?”

Mr. Hilton, why the question mark?

SOR/2006-352 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND IV)

(For text of documents, see Appendix C, p. 15C:1.)

Mr. Hilton: There are three distinct issues to deal with in this file, and I would perhaps first recommend dealing with each issue in full before proceeding to the next issue. Would that be the preference?

First, the Department of Transport no longer believes that previously promised amendments relating to the exercise of ministerial discretion found in four provisions dealing with the flight training and qualifications of flight instructors for gyroplanes are necessary.

The four provisions all state that a person may conduct certain training or instruction if the person obtains written authorization from the Minister of Transport to conduct that training. To obtain that authorization, certain conditions must be satisfied, but what was unclear was whether the minister would always grant the authorization if all the relevant conditions were met. The result is that people in identical circumstances might be treated differently.

At first, the department agreed to address the issue, but now states in its June 2022 letter that the provisions simply permit the person to conduct the training in question if the person obtains the necessary authorization from the minister, and that such authorization will always be provided so long as the relevant conditions are met.

The problem, though, is that it does not appear that the department’s assertion that the minister’s authorization will be provided so long as the relevant conditions are met is accurately reflected in the text of the four provisions.

An example of one of the provisions in question is provided on page 2 of the briefing note prepared for members, and members will see that nothing appears to mandate the minister to grant the requested authorization if the necessary conditions are met.

By way of contrast, members will see on page 3 an example of another provision of the regulations that contains explicit directions to the minister to grant a certain type of authorization when those required conditions are satisfied.

This being the case, it is open to the committee to continue pursuing amendments to the four provisions, as per recommendation 2.

At the same time, since the department has confirmed that no discretion is exercised on the minister’s part in granting the authorizations referenced in the four provisions here, which could be seen as a satisfactory response to the committee’s concerns, members may instead wish to consider this issue resolved as per recommendation 3.

The Joint Chair (Senator Woo): This is the first of the items. There are more to be discussed, but let’s start with this one.

Are there any comments from colleagues? I think we’re all still trying to wrap our heads around it. Could you boil it down to the key question, and what the consequences are of taking either option?

Mr. Hilton: In the regulations, there are four provisions that provide the authorization for individuals to conduct certain gyroplane training and instruction. The issue is that even if that person satisfies all the requirements to conduct that training, it’s not guaranteed by law that the minister will grant that authorization. There is some discretion afforded to the minister in that regard.

The department, though, has confirmed that, in practice, the minister does not exercise that discretion, and that, so long as all the necessary conditions have been met, the authorization will be granted. So it’s up to the committee to decide whether it would prefer continuing to pursue amendments so that that discretion is eliminated from the regulations or to leave them as is.

The Joint Chair (Senator Woo): What is the problem with having the discretion?

Mr. Hilton: It leaves people in identical circumstances being treated differently. You can have two people with the exact same set of facts applying for these authorizations, and it’s not guaranteed that both people would be granted that authorization.

The Joint Chair (Senator Woo): Is that a problem that REGS is authorized to settle?

Mr. Hilton: It would fall under the committee’s mandate.

The Joint Chair (Mr. Albas): In the writing in your report, it specifically seems to put the onus on the individual applying to make this flight rather than on the minister. And if the minister is already operating where they treat everyone the same — and the wording of that particular line seems to say that the pilot “may” — to me it would make sense to say that if the minister is always giving out the permit, that there’s no discretion whatsoever, and the only discretion is whether or not the pilot who seeks to do the training decides that they may do it if it’s in the public interest.

Mr. Hilton: The “may” is permissive. These provisions simply permit the person to conduct this training if they obtain the required authorization. The issue isn’t so much on that front. It’s that it’s not always guaranteed that the minister will grant that authorization even if the conditions for authorization exist.

The Joint Chair (Mr. Albas): Isn’t the minister’s office already saying that we give these things out when requested?

Mr. Hilton: They are saying that in practice no discretion is exercised, but that’s not explicitly laid out in the law, whereas other provisions of the regulations remove any discretion and direct the minister to issue other types of permits not related to gyroplanes if those conditions are met.

The Joint Chair (Senator Woo): Would you just think a bit about whether discussing the other items under this category would be helpful in helping us think through this item? I’ll come back to you on that.

Mr. Erskine-Smith: Just a question back on that front. It seems pretty straightforward. As a matter of practice, the minister is doing something that makes a lot of sense, and that’s all good. The question is whether we want to codify it via regulation the way it’s codified in a separate area. It probably makes sense to codify it. It’s a small thing either way. What’s it to us or to the department to codify it? It seems like a small thing, so they should codify it, and we can move on to the next thing.

The Joint Chair (Senator Woo): Mr. Hilton, is it helpful for us to talk about the other items in the way we think about this one?

Mr. Hilton: We can come back to it.

The Joint Chair (Senator Woo): Is that okay, colleagues, just so we get the whole picture? I’m putting this aside to decide for a while. Then we’ll come back to it. Is that okay? So let’s move on.

Mr. Hilton: Moving on to the second issue, the department has also confirmed in its June 2022 letter that promised amendments relating to drafting errors in three of the four provisions mentioned in the previous point are being developed in a miscellaneous amendments regulations package, and it is targeting fall 2023 for Governor-in-Council approval. If members agree, counsel can follow up with the department on the status of those amendments as per recommendation 1.

The Joint Chair (Senator Woo): Let’s move on to the next one. That was fairly straightforward.

Mr. Hilton: The third and final point is that a new issue has possibly been identified concerning an apparent inconsistency in the use of a defined term. If members agree, counsel can follow up with the department in the letter being sent in a previous point under recommendation 1.

The Joint Chair (Senator Woo): Can you elaborate on that issue? What is the new term being used?

Mr. Hilton: There is a defined term in the Canadian Aviation Regulations where that term is defined. There’s a part of the regulations that states that reference to the personnel licensing standards is a reference to Standard 425 — Flight Training, which is a separate administrative document maintained by the Department of Transport, but the problem is that later on in the regulations, they refer to a provision of that standard that doesn’t actually exist. It exists in another standard — Standard 421.

The Joint Chair (Senator Woo): It would seem that issue merits follow up in and of itself whether or not we write on the previous issues. I don’t know how other colleagues feel. You framed it such that if we happen to write to them, we can include this issue. Is that my correct understanding?

Mr. Hilton: Yes. The first letter that would go to the department would be concerning the follow up on the promised amendments and following up on this new issue.

The Joint Chair (Senator Woo): Got it.

Mr. Hilton: It is also open to members to include in that letter whether they want to follow up on the discretion issue.

The Joint Chair (Senator Woo): Okay. I think we have the whole picture now. I’m going to guess that there’s consensus that we do want to follow up on the promised amendments. The question is whether we want to then tag onto that same letter the discretion question and the definition issue.

Mr. Webber: I’m just a little bit confused here. If there is a qualified gyroplane flight instructor available that is teaching a student, are these requirements necessary, where they also have to write the minister for that permission?

Mr. Hilton: In these provisions, they grant authorization when a gyroplane instructor is not available.

Mr. Webber: When a non-qualified gyroplane —

Mr. Hilton: When a gyroplane instructor is not available, there are avenues for other people to conduct that training.

Mr. Webber: Got it.

Mr. Hilton: They have to apply for that authorization. If they meet certain requirements and conditions, they will be granted that authorization. The issue, though, is that it’s not guaranteed that the minister will grant that authorization even if the conditions for authorization exist.

Mr. Webber: But it is not necessary for a qualified gyroplane flight instructor to go through this?

Mr. Hilton: That’s taken care of in another part of the regulations.

Mr. Webber: I tend to concur with Mr. Erskine-Smith. I think this should be codified in the bill here just to make it consistent. That is something I would certainly put forward, and I’d like to hear what others have to say.

Mr. Erskine-Smith: If we had no other business writing to them, then maybe we would drop it. But if we’re already writing to them on these other things — and it makes sense that we do — then we should also ask that they codify it and then just move on.

Mr. Louis: I’m in agreement in principle, especially since we’re writing already. If they didn’t want to codify it, is there a way of asking them why that could be? I’m wondering if it’s something beyond the credentials that they need. Maybe there’s a security reason before you’re training pilots to fly. Maybe that’s the reason the “may” — the condition — is there. I wonder if there’s something we can say to ask them if there is a valid reason why they’re holding back and giving that one “may” as a condition.

The Joint Chair (Senator Woo): Do we have an explanation for why they have been holding back on codification?

Mr. Hilton: No. They simply assured the committee that no discretion is exercised, and they were therefore of the position that it was not worth pursuing amendments to the provisions. We can certainly ask them for more information on why that is.

The Joint Chair (Senator Woo): If colleagues agree with Mr. Louis’s nuance, we will write to them on all three issues with a slight caveat that we give them the opportunity to explain why they have not codified to date. There may be a good reason. Then when we see the reply, we can decide if that’s a good excuse, essentially. But we will write to them on items 2 and 3.

Mr. Hilton: It may be worth noting that when the issue was first raised to the department, it had agreed to amend the provisions. This is a change in view of the department.

The Joint Chair (Senator Woo): Then all the more reason, I think, to write to them.

Okay, good. Let’s move on to the next item.

[Translation]

SOR/2015-227 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS

SOR/2017-212 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS

(For text of documents, see Appendix D, p. 15D:1.)

Mr. Hilton: This is the first time that these matters have been brought to the committee. The committee has been waiting for amendments promised in 2017 that have yet to be completed. These amendments relate to the unnecessary discretion afforded to the Chicken Farmers of Canada in the suspension, revocation or refusal to issue or renew a marketing licence, the circumstances that will lead to the suspension of a licence and those that will lead to its cancellation, which are identical in some instances, and whether the force majeure provisions should be made available with respect to any licence issued in accordance with the regulations. These provisions are available for only two of the eight types of licences. In addition, the committee is awaiting the repeal of a definition that serves no purpose.

Progress seems to have been made recently, as the Farm Products Council of Canada letter dated June 23, 2023 indicates that the file is near completion and that, in the next few months, the Department of Justice will provide a final copy of the document outlining the amendments. While encouraging, the letter still lacks specificity. If the committee members agree, legal counsel can ask the Farm Products Council of Canada if it can provide a more specific date by which the promised changes will be made.

[English]

Mr. Davidson: Thank you for the update on that. I would agree. We can send the letter and ask for a specific date. I think that is reasonable because there is progress made on the file.

The Joint Chair (Senator Woo): Okay, so done. That was under the heading “Progress.” The next category is “Action Taken,” and I will turn to our joint chair to lead the discussion.

The Joint Chair (Mr. Albas): Mr. Hilton, I believe you’re stewarding this one.

[Translation]

SOR/2016-79 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

(For text of documents, see Appendix E, p. 15E:1.)

Mr. Hilton: This is another issue before the committee for the first time. This order set a new levy for every single egg producer for the broiler hatching eggs that they market. Section 2 states that the amendments come into force on April 24, 2016. However, the order was made on April 25, 2016, and was registered on April 29, 2016. Section 2 thus purports to give the amendments retroactive effect, which is not authorized by the enabling legislation. In the absence of lawful coming into force provisions, the Interpretation Act provides that the order came into force on the day of registration: April 29, 2016.

This means that there was a period between April 24 and April 29 in which the amendments in the order were not yet in force. If the Canadian Hatching Egg Producers collected the increased levies set out in the order before April 29, it did so unlawfully.

After some initial confusion, the Farm Products Council of Canada recognized the error and indicated that the Canadian Hatching Egg Producers has undertaken to avoid similar situations arising in the future.

Finally, the Canadian Hatching Egg Producers also determined that the increased levies set out in this order were charged to a single egg producer between April 24 and April 29, 2019. The difference between the new and old levies amounted to $40.15, which has been refunded to that producer. The committee’s concerns have been addressed, so this matter can be closed.

[English]

The Joint Chair (Mr. Albas): Are there any comments or questions?

Mr. Davidson: I would agree to close this file. It’s nice to see that they accepted their error and refunded this $40. In the letter, we might want to say that we’re watching to ensure that something like this doesn’t happen again, but I think it’s good they corrected the error.

Mr. Erskine-Smith: I have a process question for the joint chairs. My understanding is that the rest of the recommendations in the briefing note are all related to where sufficient actions have been taken in the analysts’ and counsels’ views, and that we are to close all of these files. Can we not deal with them as a block, unless people have objections to individual cases? I’ve reviewed the briefing note. They all seem acceptable to me. Can we all deal with them as a block?

The Joint Chair (Mr. Albas): We can always do that if a request is made, but before we decide to close the files en masse, I would like to canvass other members of the joint standing committee.

[Translation]

Does anyone else have a question or a comment?

[English]

Mr. Louis: It seems reasonable. We did the more contentious ones; they were up front. These other ones are all in agreement. I’m not sure how the committee usually works, but I would be in agreement to handling them as a block.

The Joint Chair (Mr. Albas): Does counsel have guidance for the committee?

Mr. Hilton: Just to clarify, is this in relation to the next three items relating to the pilotage files?

The Joint Chair (Mr. Albas): Maybe we’ll ask Mr. Erskine-Smith. Are you referring to the pilotage under “Action Taken,” or are you referring to the Canadian Broiler Hatching Egg Marketing Levies Order?

Mr. Erskine-Smith: I’m referring to everything under “Action Taken” where we are ultimately recommending that the files be closed.

The Joint Chair (Mr. Albas): Okay. In this case, I think counsel would like to separate the two issues.

Mr. Johns: I support Mr. Erskine-Smith’s recommendation.

The Joint Chair (Senator Woo): Your joint chairs have been in conversation with legal counsel about modernizing and making the work of this committee more efficient. This is one of the ideas we were going to put before you, so we’re very glad that Mr. Erskine-Smith has foreshadowed it.

I would support that proposal if everybody is in favour of it.

The Joint Chair (Mr. Albas): It looks like we have some consensus here. I think counsel has direction on both the chicken/egg — the “cracked case,” as it were — and the pilotage has been piloted.

Mr. Davidson: Which came first, the chicken or the egg?

The Joint Chair (Mr. Albas): I’m this close to just hitting the gavel.

SOR/2021-119 — REGULATIONS REPEALING CERTAIN REGULATIONS MADE UNDER THE PILOTAGE ACT (TARIFF REGULATIONS – MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix F, p. 15F:1.)

SOR/2022-230 — REGULATIONS REPEALING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix G, p. 15G:1.)

SOR/2008-80 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS

SOR/2018-78 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS

SOR/2011-136 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE REGULATIONS

SOR/2014-36 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE AUTHORITY REGULATIONS

SOR/2020-211 — REGULATIONS AMENDING THE PACIFIC PILOTAGE REGULATIONS

(For text of documents, see Appendix H, p. 15H:1.)

The Joint Chair (Mr. Albas): Counsel has some prepared statements on some of the remaining files. Do you want to sum them up? It sounds like the committee would like to move on to these items.

Mr. Hilton: I can provide members with some context regarding the pilotage files.

Recent amendments to the Pilotage Act have transferred the regulatory powers from the regional pilotage authorities to the Minister of Transport, as well as provided the ability for the pilotage authorities to now set their tariffs through resolutions rather than through regulations. This has essentially rendered almost all of the committee’s files relating to pilotage moot and obsolete, because those regulations have been repealed as a result of these amendments to the Pilotage Act.

The Joint Chair (Mr. Albas): All right. I think the committee has made the decision to close all those files. I appreciate that, counsel.

Again, committee members, if I could please ask, especially when it’s this particular joint chair, that, if it’s on the agenda, we’ll take it item by item, unless we agree to tackle them as a block. That said, I do support Joint Chair Senator Woo’s suggestion that we perhaps just modify the agenda so we can accelerate our progress.

Speaking about progress, we will progress to the next one, “Statutory Instruments Without Comment.”

SI/2020-27 — ORDER ASSIGNING THE HONOURABLE AHMED D. HUSSEN, MINISTER OF STATE (SERVICE CANADA) TO ASSIST THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT

SI/2020-22 — ORDER ASSIGNING THE HONOURABLE BARDISH CHAGGER, MINISTER OF STATE (DIVERSITY AND INCLUSION AND YOUTH) TO ASSIST THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT

SI/2020-78 — PIERRE DALLAIRE REMISSION ORDER

SOR/2020-254 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS

SOR/2021-133 — REGULATIONS AMENDING THE NUCLEAR LIABILITY AND COMPENSATION REGULATIONS

SI/2019-106 — ORDER ASSIGNING THE HONOURABLE BARDISH CHAGGER, MINISTER OF STATE (DIVERSITY AND INCLUSION AND YOUTH), TO ASSIST THE MINISTER OF CANADIAN HERITAGE

SI/2019-109 — ORDER ASSIGNING THE HONOURABLE MONA FORTIER, MINISTER OF STATE (MIDDLE CLASS PROSPERITY), TO ASSIST THE MINISTER OF FINANCE

SI/2019-110 — ORDER ASSIGNING THE HONOURABLE JOYCE CATHERINE MURRAY, MINISTER OF STATE (DIGITAL GOVERNMENT), TO ASSIST THE PRESIDENT OF THE TREASURY BOARD

SI/2019-111 — ORDER ASSIGNING THE HONOURABLE DEBORAH SCHULTE, MINISTER OF STATE (SENIORS), TO ASSIST THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT

SI/2019-112 — ORDER ASSIGNING THE HONOURABLE MARYAM MONSEF, MINISTER OF STATE (RURAL ECONOMIC DEVELOPMENT), TO ASSIST THE MINISTER OF INDUSTRY AND THE MINISTER OF INFRASTRUCTURE AND COMMUNITIES

Stephanie Feldman, Analyst, Library of Parliament: The final matter for today is a list of 10 statutory instruments that have been reviewed by committee counsel and have been found to comply with all of the joint committee’s criteria. If a committee member would like to consult these statutory instruments, a copy can be made available upon request.

It is our recommendation is these files be closed.

The Joint Chair (Mr. Albas): Is there agreement to do so?

Hon. Members: Agreed.

The Joint Chair (Mr. Albas): Colleagues, I believe that brings us to the end of today’s meeting.

Senator Dalphond: Just to follow up on what I said at the beginning of the first item, as we were discussing other items, I checked the Statutory Instruments Act, and I agree with counsel that we have the power to review those regulations. It says that a statutory instrument does not include:

. . . any instrument referred to in paragraph (a) and issued, made or established by a judicial or quasi-judicial body, unless the instrument is a rule, order or regulation governing the practice or procedure . . . .

That is what we have here. Specifically, it’s covered, and we have the authority. So I’m satisfied. I agree with Mr. Hilton that we have the authority, and we don’t have to pursue the matter any further.

I would just caution that when the chair appears before us, we show due deference for judicial autonomy and independence.

The Joint Chair (Mr. Albas): Sure. I think the committee notes your concerns and appreciates them, because we want counsel focusing on new statutory instruments. There are thousands.

All right. Thank you for everyone’s participation, to my joint chair, to the clerks as well as counsel.

(The committee adjourned.)