REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Monday, October 7, 2024

The Standing Joint Committee for the Scrutiny of Regulations met this day at 11 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): Welcome back to the Standing Joint Committee for the Scrutiny of Regulations to those of you who are regular, long-time members. We have some new members too: I would like to express a warm welcome to Mr. Bittle and Ms. Lalonde. I would also like to extend a warm welcome to our two joint clerks. Ferda Simpson from the Senate side has been on this committee before, but we welcome Carine Grand-Jean from the House of Commons. We also welcome Senator Dalphond.

I will turn to our counsel to take us through the agenda.

SOR/2014-198 — FIREARMS RECORDS REGULATIONS (CLASSIFICATION)

(For text of documents, see Appendix A, p. 19A:1.)

Geoffrey Hilton, Counsel to the Committee: At the committee’s meeting of May 27 last spring, members decided to issue a notice of disallowance concerning these regulations. For newer members, issuing a notice of disallowance begins the disallowance process, which is a process under section 19.1 of the Statutory Instruments Act that, if followed through, compels a regulation maker to repeal the regulation or a portion thereof that was subject to the notice.

At issue in this file was the time it was taking for these regulations to be repealed since the Department of Public Safety first indicated to the committee in 2017 of its intention of repealing the regulations.

In conjunction with issuing the notice of disallowance, the committee also directed that a letter from the joint chairs be sent to the Minister of Public Safety, advising that the committee expected the regulations to be repealed by the end of the year and that, should that prove not possible, the committee would move on to the next step of the disallowance process and consider tabling a report containing a resolution for the disallowance of the regulations.

Both the notice and the letter were sent to the minister on June 4. The minister responded positively to both the notice of disallowance and the letter of the joint chairs, assuring the committee just three days later in a letter received on June 7 that the regulations would be repealed prior to the committee’s end‑of-year deadline.

As members can see, the notice of disallowance worked exactly as intended and spurred the minister and the department into action. While, as of today’s date, the repeal has not occurred, counsel will continue to monitor the repeal and report back to the committee with updates as they occur.

The Joint Chair (Senator Woo): Thank you. Are there any comments?

Mr. Davidson: I want to thank the committee. That letter did work, obviously, thanks to your work on this file. I think we are going to need to monitor — maybe send a gentle reminder to them or ask how they are making out to be assured it will be done by the end of the year. Sometimes there is forgetfulness, as we have seen before, so that would be great.

Mr. Louis: I also want to thank you for the work. It shows that it can be done. We set a deadline, and the minister got back right away. If they got back and said the deadline couldn’t be met, I think we would be in a different situation, but they did respond in a timely way. Whether it is a reminder or not, I think it is a “wait and see.” I agree with Mr. Davidson.

The Joint Chair (Senator Woo): They haven’t yet delivered, so we’ll keep monitoring and see what happens in the next eight weeks or so.

SOR/2010-107 — REGULATIONS AMENDING THE CLASS II NUCLEAR FACILITIES AND PRESCRIBED EQUIPMENT REGULATIONS

(For text of documents, see Appendix B, p. 19B:1.)

Mr. Hilton: This is another file for which the committee, at its meeting last May, decided to issue a notice of disallowance. Here, the committee has been waiting since 2018 on amendments to two provisions that would clarify the discretionary powers afforded to the Canadian Nuclear Safety Commission in a certification and decertification of radiation safety officers. Over the years, the commission remained committed to making the necessary amendments, but the commission then indicated last spring that the amendments would only be prepublished in fall 2026, meaning that final publication would likely only have occurred sometime in 2027, nearly 10 years since the amendments were first promised.

Not satisfied with this timeline, the committee agreed at its May meeting to issue a notice of disallowance to the Minister of Natural Resources and to the commission for the disallowance of the two provisions in question. As well, the committee directed that a letter be sent to the commission, expressing members’ desire for the commission to provide a new accelerated regulatory plan that would see significant progress on the amendments being made much sooner than 2026. Members also expressed a desire for the commission to respond to that letter by September 1, at which point the committee would decide whether it would still be necessary to consider a report containing a resolution for the disallowance of the two provisions in question.

Both the notice and the letter were sent to the minister and commission on June 4. The minister responded first, indicating in a July 4 letter that he would monitor the commission as it worked to provide a response by the committee’s September 1 deadline. The commission, in respecting the committee’s deadline, then confirmed in a letter dated August 19 that the amendments to the two provisions in question would be made in an expedited manner, and that it now expected final publication of the amendments by spring 2025.

With this new timeline, the finalization of the amendments has essentially been moved up by two years.

Again, members can see that simply issuing the notice of disallowance spurred the commission into taking action. If members agree, counsel can continue to monitor the status of the amendments and report back to the committee with updates as they occur.

The Joint Chair (Senator Woo): Comments?

Mr. Johns: I like the trend we have set in terms of setting deadlines. It is achieving some results. I think this is quite satisfactory. Spring is what we are hoping for, and they’ve expedited things by two years. Let’s continue setting deadlines and saving some energy for this committee.

The Joint Chair (Senator Woo): It has been 10 years.

Mr. Davidson: I agree with my colleague, and thank you, Senator Dean, for pressing on this issue right out of the gate. I think it shows.

This is a great start to the session. It’s unbelievable. Continue to monitor it, obviously.

Mr. Louis: I was also going to ask to continue to monitor and update the committee, given it has been 10 years. This committee has moved things a lot faster than anyone. That monitoring and updating would be helpful to get it out by the end of the year.

The Joint Chair (Senator Woo): Thank you, Mr. Hilton. We move on now to the “Reply Satisfactory” section.

SOR/2020-61 — INTERIM ORDER AMENDING THE EMPLOYMENT INSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

(For text of documents, see Appendix C, p. 19C:1.)

Mr. Hilton: This is the first in a series of 10 interim orders that were made in the spring and summer of 2020 by the Department of Employment and Social Development to mitigate the negative economic effects of the COVID-19 pandemic.

These interim orders were made under a temporary enabling authority under the Employment Insurance Act, which authorized the Minister of Employment and Social Development to make amendments to the act by way of interim orders rather than having to go through the usual legislative process. This power, though, could only be exercised up until September 30, 2020, meaning that, after that date, any issue raised in these interim orders could only be corrected by way of a direct parliamentary enactment and not through any future interim orders.

In this particular interim order, two issues were raised with the department. First, the order did not contain any provision indicating when the provisions added to the act by this order would cease to apply, which was in direct contravention of the act. However, Interim Order No. 5 in this series, which is also before the committee today under Item No. 9, corrected this matter prior to the September 30, 2020, deadline and added a provision to the act which set out the date on which interim orders 1 through 5 would cease to apply. This issue can therefore be considered resolved.

For the second issue, it had seemed that in a few provisions added by this interim order, the French version of a defined term was not being used in the same manner as it was being used elsewhere in the act. Specifically, the French version of the added provisions referred to claimants who cease to work “whether employed or self-employed” as:

[Translation]

“qui cessent d’exercer leur emploi — ou d’exécuter un travail pour leur compte.”

[English]

The act, though, had already specifically defined the term “self-employed person,” the equivalent of which in the French version was “travailleur indépendant.” The department was therefore asked why the French version of the new provision used the phrase “un travail pour leur compte” rather than “un travail indépendant.”

In response, the department provided two explanations. First, the department explained that the part of the act that contained the new provisions established the Employment Insurance Emergency Response Benefit, so it was desirable to align the new provisions with the language found in the Canada Emergency Response Benefit Act, which itself had established a closely related benefit program. The department further explained that the language dealing with a self-employed person found elsewhere in the act was itself contained within another part of the act that operates in a different context, and so the language in that other part was not necessarily binding upon or inconsistent with the part containing the new provisions added by this interim order. Together, the committee may wish to consider the department’s response satisfactory. If so, the committee’s file on this interim order can be closed.

The Joint Chair (Senator Woo): Are there any comments? Satisfactory? Okay, let’s move on.

[Translation]

SOR/2019-87 — ORDER AMENDING CERTAIN PERMITS MADE UNDER THE EXPORT AND IMPORT PERMITS ACT

(For text of documents, see Appendix D, p. 19D:1.)

Julie Lévesque, Counsel to the Committee: The committee is reviewing this file for the first time. This order was made in response to the committee’s concerns in another file that also involves a general export permit. Inconsistencies in the wording of certain definitions were pointed out in that file.

During the review of this order, a new issue was identified. A period of 37 days elapsed between the making of the order and its registration. The question now is whether the 37-day delay is excessive or even unacceptable, or whether the Department of Foreign Affairs gave a sufficient explanation for the delay.

According to the department, and in response to its request, this order was published in the same issue of the Canada Gazette as another order to ensure consistency and to make it easier to consult the two statutory instruments. As a result, Treasury Board could examine them together only at its meeting on April 4, 2019.

In all likelihood, the 37-day delay wouldn’t invalidate the order. First, the Statutory Instruments Act doesn’t specify a time frame for registering a statutory instrument. Second, there aren’t any consequences for non-compliance with the registration requirement. Third, the courts didn’t interpret the seven-day time limit for transmission as also applicable to registration. For these reasons, and if the committee finds the department’s explanation satisfactory, the file can be closed.

[English]

The Joint Chair (Senator Woo): Thank you. Are we willing to accept the 37-day explanation for the delay? Okay. Accepted. I will turn now to Mr. Albas, the joint chair, to chair the rest of the meeting.

The Joint Chair (Mr. Albas): Thank you. Good morning, everyone. We will move on to the next item.

[Translation]

SI/2021-62 — PROCLAMATION SUMMONING THE HOUSE OF COMMONS TO MEET ON OCTOBER 18, 2021

SI/2021-64 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON NOVEMBER 22, 2021 (DISPATCH OF BUSINESS)

SOR/2022-88 — PROCLAMATION DECLARING THAT THE GOVERNMENT CORPORATIONS OPERATION ACT CEASES TO APPLY TO TRANS MOUNTAIN CORPORATION

(For text of documents, see Appendix E, p. 19E:1.)

Julie Béchard, Counsel to the Committee: These three proclamations are being presented to the joint committee for the first time. Upon review, it was noted that the French text differed from proclamation to proclamation. These proclamations were submitted to the Privy Council for clarification. The two issues identified were the abbreviation used for the legal seal and the verbs used in the titles. The Privy Council confirmed that no error of law had occurred and that the risk of confusion was minimal. The committee can be satisfied with the response received. We recommend that the three files be closed.

[English]

The Joint Chair (Mr. Albas): We have a recommendation by counsel to close the three files. I see we have a thumbs-up and another thumbs-up. Any other discussion? Thank you very much. Close those.

We are moving on to “Part Action Taken.”

SOR/2013-82 — SOCIAL INSURANCE NUMBER REGULATIONS

(For text of documents, see Appendix F, p. 19F:1.)

Ms. Béchard: This is the fourth time these regulations are before the joint committee. Originally, there were 11 concerns related to these regulations. Ten of these issues were resolved in June 2018 by SOR/2018-136, which is currently before the committee under the agenda heading “Action Promised.”

In the Social Insurance Number Regulations, the last issue relates to an element of discretion provided under subsection 3(4) of the regulations. The question is how the commission has the discretion to refuse to register a person and assign them a Social Insurance Number when the conditions for issuance exist except for a mark or signature on the application. The committee has always insisted that some parameters should be placed on the discretionary authority of public officials to avoid the situation where applicants in identical situations be treated differently for arbitrary reasons.

Employment and Social Development Canada agreed to provide guidance in the regulations as to how the discretion is to be exercised by the Canada Employment Insurance Commission and promised a review in its January 2016 letter.

In the department’s correspondence received in December 2021, they stated that COVID-19 had changed their priorities and that a comprehensive review continued to be required before any changes to subsection 3(4) are made.

It is recommended that legal counsel follow up on this remaining amendment.

Mr. Davidson: I would like to thank counsel. Hopefully, this isn’t a bridge too far, where it is one to go. Did they give a timeline?

Ms. Béchard: No, they haven’t.

Mr. Davidson: They haven’t. I don’t know how the committee feels about that.

Mr. Johns: Let’s send them a note with a deadline, like with everything else we are doing.

The Joint Chair (Mr. Albas): What’s the deadline going to be?

Mr. Johns: Let’s ask them if they can propose a timeline and hear what they have to say. Then maybe we can alter it.

The Joint Chair (Mr. Albas): Is it a timeline for the changes?

Mr. Johns: Yes.

The Joint Chair (Mr. Albas): Or is it a deadline to respond to us or both?

Mr. Johns: I think both.

The Joint Chair (Mr. Albas): Okay. Is everyone comfortable with that? MP Louis?

Mr. Louis: If we are setting a deadline to get it done, it’s arbitrary. But I agree that it should be some form of both, saying, “Here is a deadline. Can you get it done by then? If not, give us a valid reason as to why not.” Then we’ll make that decision if that reason is good enough. If we are making a deadline that’s arbitrary, we don’t know. I don’t want to merely say, “Tell us when.” I think we need that extra level of requesting a deadline and saying, “If you can’t meet us, give us a reason, and we’ll decide if that’s valid.”

The Joint Chair (Mr. Albas): Okay, we are going to request a deadline to respond within 90 days, and we’ll ask for a clear deadline as to when they will get this done. Then we’ll decide if it meets the committee’s expectations.

Senator Dalphond: I have a question.

[Translation]

A letter from the department dated October 29, 2018 tells us they’ll do something. However, our next document is a letter from the committee dated August 17, 2021. Three years went by. Does it make sense to wait three years to see whether anything has been done?

Ms. Béchard: No. Normally, we conduct a much more stringent follow-up. However, the pandemic meant that we weren’t in the office, so it was harder to conduct follow-ups. Also, they made major changes in June 2018. We thought that this would solve all the problems. We didn’t yet know that subsection 3(4) remained unaddressed.

Senator Dalphond: How long do we take to follow up? Things here last for six, seven or eight years and sometimes even 10 or 15 years. If things remain at a standstill for three years on our end, the departments don’t need to move. I would like to know our practice. Does it take six months, two years or three years to follow up?

Ms. Béchard: No. The follow-up is normally every four months.

Senator Dalphond: Thank you.

[English]

The Joint Chair (Mr. Albas): Do we have enough information? Do we have enough direction? We will write a letter asking for a response within 90 days, asking for a deadline, and then we can evaluate whether or not the department is being reasonable, in our view. Since I’m seeing no one else, we’ll move on.

[Translation]

SOR/2018-136 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE BY THE CANADA EMPLOYMENT INSURANCE COMMISSION (SOCIAL INSURANCE NUMBER)

(For text of documents, see Appendix G, p. 19G:1.)

Ms. Lévesque: This file concerns “promised corrections”. The committee is reviewing this file for the first time. These regulations address 10 of the 11 issues raised by the joint committee in the file that Ms. Béchard just went over. The regulations also lead to two new issues. These issues are language inconsistencies that the department agreed to address and a provision containing an unnecessary administrative discretion. The department recognized, in principle, that this administrative discretion shouldn’t be part of the regulations.

In its letter dated September 15, 2021, the department stated that it had started an operational review of the regulations but had experienced some delays as a result of the pandemic. In its letter dated January 25, 2022, the department stated that an amendment package was forthcoming. However, no date for the enactment was provided. As in the previous file, if the committee agrees, legal counsel could follow up with the department on the progress of the changes.

[English]

Mr. Davidson: I agree with counsel. I think we have to do a follow-up with the same department again. They really lean on the pandemic.

The Joint Chair (Mr. Albas): Were there any parameters the committee would like to entertain in the follow-up?

Mr. Davidson: We should ask for a deadline for when they are going to complete this, as we did with the last one, if that’s acceptable.

[Translation]

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

[English]

All right. I think we have an agreement.

SOR/2016-31 — REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS

SOR/2020-141 — INTERIM ORDER NO. 5 AMENDING THE EMPLOYMENT INSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

SOR/2020-278 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS

CLOSES: SOR/2014-34 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS

The Joint Chair (Mr. Albas): I believe for “Action Taken,” we can simply thank counsel for getting action on Items 8, 9 and 10, unless there is a specific question by a member of the committee.

SOR/2020-88 — INTERIM ORDER NO. 2 AMENDING THE EMPLOYMENT INSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

SOR/2020-89 — INTERIM ORDER NO. 3 AMENDING THE EMPLOYMENT INSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

SOR/2020-95 — INTERIM ORDER NO. 4 AMENDING THE EMPLOYMENT INSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

SOR/2019-36 — MEXICO STEEL GOODS REMISSION ORDER

SI/2019-127 — ORDER DESIGNATING THE MINISTER OF CANADIAN HERITAGE TO BE THE MINISTER FOR THE PURPOSES OF THAT ACT IN RESPECT OF SPORT

SI/2019-128 — ORDER DESIGNATING THE MINISTER OF STATE (DIGITAL GOVERNMENT) TO BE THE MINISTER FOR THE PURPOSES OF THAT ACT

SI/2019-129 — ORDER DESIGNATING THE MINISTER FOR INTERNATIONAL TRADE (1) AS THE DESIGNATED MINISTER FOR THE PURPOSES OF THE BUSINESS DEVELOPMENT BANK OF CANADA ACT; AND (2) AS THE APPROPRIATE MINISTER WITH RESPECT TO THE BUSINESS DEVELOPMENT BANK OF CANADA FOR THE PURPOSES OF THE FINANCIAL ADMINISTRATION ACT

SOR/2019-346 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (HOLLOW WATER)

SI/2020-5 — ORDER AWARDING THE OPERATIONAL SERVICE MEDAL WITH THE SOUTH-WEST ASIA RIBBON

SI/2020-6 — ORDER AWARDING THE OPERATIONAL SERVICE MEDAL WITH THE SIERRA LEONE RIBBON

The Joint Chair (Mr. Albas): As for “Statutory Instruments Without Comment,” we will leave them without comment.

That was a very brief meeting. I have some potential dates. Members, we try to accommodate so that you can plan ahead. These are unofficial until the clerks make it official. We will have a meeting on Monday, October 28 and November 18. Please keep an eye on your emails for notices of those meetings. If anyone has any questions, that’s great.

Is there any other business any members have? Okay. Thank you very much, everyone. Great work, counsel; great work, members. Thank you to our new clerks. I am looking forward to doing more business this month.

(The committee adjourned.)