REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Monday, November 18, 2024

The Standing Joint Committee for the Scrutiny of Regulations met this day at 10:59 a.m. [ET] to review regulatory texts.

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

[Translation]

The Joint Chair (Senator Woo): Good morning, colleagues.

[English]

Let’s begin. The first item will be led by counsel Geoffrey Hilton.

SOR/2003-363 — ANTARCTIC ENVIRONMENTAL PROTECTION REGULATIONS

(For text of documents, see Appendix A, p. 21A:1.)

Geoffrey Hilton, Counsel to the Committee: It is now the thirteenth time, dating back to 2007, that the committee has considered this file. At issue is the time it has taken for remaining amendments, promised since 2015, to be made. Those amendments relate generally to the regulation of waste management in Antarctica.

Previously, the committee considered the provisions subject to the promised amendments unauthorized on account of the regulations’ enabling act not actually authorizing regulations that directly regulate waste management in the Antarctic.

In an update provided in August 2023, Environment and Climate Change Canada indicated that work on the amendments was progressing, but that other amendments to the regulations were needed to reflect changes to the Protocol on Environmental Protection to the Antarctic Treaty.

The department concluded its letter by indicating that a review of the regulations and protocol was under way, and that it expected prepublication of the amendments in Part I of the Canada Gazette by September 2024.

Members considered the department’s letter just last spring at the committee’s May 27 meeting and were not satisfied with the time it was taking for the amendments to be finalized. As such, members considered the full breadth of the committee’s powers in deciding how to proceed, which included possibly sending a letter from the joint chairs to the Minister of Environment and Climate Change, inviting the minister or departmental officials to appear before the committee, or issuing a notice of disallowance.

Eventually, members directed that a letter be sent to the minister, advising that, should the department’s September timeline for prepublication not be met, then the next time the committee considered the file, members would once again consider all the powers at the committee’s disposal.

That September timeline eventually passed without prepublication of the amendments. The minister, though, did provide a response to the joint chairs’ letter, indicating in a September 5 letter that the amendments were in the legal drafting stage and that according to the department’s current Forward Regulatory Plan, the department intended on prepublishing the amendments by fall 2024, in other words, by September 22.

That September 22 timeline, though, also then passed without prepublication occurring. However, the minister may have misinterpreted the department’s Forward Regulatory Plan, since the plan does not state that prepublication of the amendments was targeted by fall 2024; rather, the plan indicates that the department is targeting prepublication more generally in fall 2024, that is, sometime between September 22 and December 21.

This suggests that the department has not yet missed its targeted prepublication timeline, at least according to its Forward Regulatory Plan.

However, it remains that the department did not meet its targeted date of September 1 for prepublication, as was communicated in its August 2023 letter.

It is therefore open to members to again consider all the powers at the committee’s disposal, including writing again to the minister, inviting the minister or departmental officials to appear before the committee, or issuing a notice of disallowance, a draft of which has been included in the supporting materials for consideration.

One last option to consider is that, since the end of the general fall timeline mentioned in the department’s Forward Regulatory Plan is basically only a month away, counsel could instead continue to monitor the status of the amendments and report back to the committee following the winter break on whether or not prepublication finally occurred.

How would members like to proceed?

The Joint Chair (Senator Woo): Thank you. Could I ask you, first of all, if your interpretation of “fall 2024” is something that’s written in stone or just based on a common understanding of when the solstice is?

Mr. Hilton: According to the Government of Canada — I’m quoting from the page of National Research Council Canada, “Fall starts at the moment when the sun is directly over the equator, going from north to south . . . .” That is, the autumnal equinox, which, in this case, is September 22.

The Joint Chair (Senator Woo): So, it’s the meteorological definition. Thank you.

Mr. Davidson: This is again government doing business badly. This is a no-brainer. It’s a notice of disallowance. This is as clear as it can be. I have never heard so much “word salad.” This has been going on for nine years. I’m of the position that it is a notice of disallowance.

The Joint Chair (Senator Woo): Other comments, please?

Mr. Louis: I cannot argue this has taken too long. That’s irrefutable, but we’re almost there. If I say that something is due on Friday, it could be due Friday at midnight or Thursday night at 12:01. If we give them the benefit of the doubt and say that we expect this by December 21, which is the end of the fall, then we can just send a quick letter. If that does not happen, we can move forward, but we are almost at the end of the fall.

Mr. Carrie: I would disagree. Enough is enough. They have been obfuscating. They have been delaying. They have been doing everything not to get this done. If we want to maintain any credibility, we have no choice but to send a notice of disallowance as promptly as possible.

Mr. Johns: Normally, I would agree with you, Scot, but we have received the letter saying that the changes are coming. We ought to give it another meeting. That’s it, though. We shouldn’t give them much more, but we have a letter saying that it is coming. We have seen things come to this committee that haven’t been touched in a decade. We are starting to reel in these ministers and finally get them with the program, which has taken a long time to start seeing some deadlines being met. I see this as one opportunity where a minister has actually written us back right away and said we are going to deal with it this fall. I would give this one until another meeting, but after that, I’m with everybody on disallowance.

[Translation]

Mr. Trudel: We’re constantly dealing with unanswered requests. Should we keep waiting? Punish a little, a lot, severely? We’re always managing disappointed expectations. This committee asks for things and lets people know what it would like to see happen. It never happens, or we’re made to wait all the time. It’s all the same. However, after nine years, in this case, we have to put our foot down and tell people that enough is enough. In this case, I would agree with my friend Mr. Davidson about demanding a response, because we’ve waited long enough. We’re actually being laughed at here. We’re elected officials, we’re a committee, we pound on the table, and they respond when they feel like it. Every now and then, it’s good to put your foot down, and this is one case where we should do it. I’d be in favour of disallowance.

[English]

The Joint Chair (Mr. Albas): Mr. Hilton, with regard to timing, if we were to do a notice of disallowance — I’m not saying that’s what the committee will decide; I’ll let the committee members decide that — effectively, the minister would receive it in a few days. They would have 30 days. When would that take effect? Essentially, we are not going to have another meeting until the new year. In that case, either the work gets done because they are close — as Mr. Louis has said — or they are near it, and maybe this will give them the kick in the pants to finish it in time. As long as we get it done, that’s the focus of the committee. Could you go through the timelines for whether we simply wait until our next meeting and when that would be — possibly in the new year — and how that matches with a disallowance notice?

Mr. Hilton: If the committee were to issue the notice of disallowance in the coming days, the committee must wait at least 30 calendar days before it could proceed to the next step and consider that report containing the disallowance resolution. The expiry of the 30 days would bring the committee to mid‑December, at which point, the committee would not be sitting. The earliest conceivable time the committee would be able to consider any report containing the disallowance resolution would be sometime in February, at which point, the end-of-fall timeline would have passed, and it could be seen whether prepublication has occurred by that time or not.

Mr. Johns: So to clarify, we issue the notice, and they will basically have until early February to deal with it; is that right? I would support the notice, then, given that timeline; I think I’m with you on that, Scot.

Mr. Zuberi: Is there a partial measure we could do — essentially, we only issue the disallowance after a certain date if there is no response, which they promised by a certain time?

The Joint Chair (Senator Woo): We are most likely not meeting again, so unless we have a kind of automatic trigger that if nothing is received by December 21, all of us agree there will be a letter of disallowance or trigger of disallowance; we could go that route as well.

I think it boils down to how we understand the fall deadline. This is really angels dancing on the head of a pin.

Mr. Davidson: They have had nine years, chair. I think that is the issue. It has been nine years, and nothing has been done. We have heard constant word salad from these departments.

Mr. Zuberi: I don’t know how many years — I think we cannot opine on that exactly, given I don’t know how long this has been going on for — but I take the point that this is overdue, as are so many things that come to this committee; it is the nature of this committee. This committee is continuously handling things that are well overdue, including from previous governments’ mandates that are sometimes over a decade old.

So I would propose that the work of the committee should be respected. It would make logical sense now that the department is seized of this issue and has said they are going to give us a response by a very near date that if they don’t fulfill their word, then we do issue disallowance at that point.

[Translation]

Mr. Carrie: I agree with Mr. Trudel; it’s not nine weeks, it’s nine years.

[English]

As Mr. Johns pointed out, we need to be reasonable and keep our credibility here. The only thing to move forward is the letter, and it should be done as promptly as possible. Like I said, for us here, it’s the credibility of the committee; we can’t keep accepting these excuses, and they need to know we mean business, finally, after nine years. This is incredible.

Mr. Louis: I would suggest that we can send a letter saying that, on December 22, we are going to be issuing this notice of disallowance. If they respond before that, it’s fine. I don’t think the timelines are going to be any different, but it would be a stronger message to say that we need to hear this by December 21. That shows we mean business without using disallowance for everything, because that waters it down.

Mr. Davidson: I’m of the understanding that we cannot issue a notice of disallowance on December 21 because the committee is not meeting.

The Joint Chair (Senator Woo): I think we can give the instruction that if nothing is produced by December 21, there will automatically be a letter of disallowance.

Mr. Davidson: Does it automatically start the clock? No one has to meet or have phone calls, 10 meetings, people weighing in with maybe, maybe not? It starts disallowance immediately on December 21? This isn’t three strikes you’re out: Steal a car, steal another car and get out on bail, and we’ll give them another chance.

Mr. Hilton: The 30-day timeline would begin on the date the notice of disallowance is issued.

The Joint Chair (Senator Woo): Can we give you an instruction to issue a notice of disallowance on December 21 without meeting again because we have agreed to do so today?

Mr. Hilton: As far as I’m aware, there would not be an issue. In my experience on this committee, that has never happened. Notices of disallowance were usually issued immediately after a committee meeting. If counsel receives instructions to send a notice of disallowance at a certain date if prepublication has not yet occurred, I can’t see why that would not be allowed.

The Joint Chair (Mr. Albas): I just have a quick question. Thank you for that. December 21 is a Saturday, so let’s be charitable; it’s going to be Christmas pretty quick.

I think we are splitting hairs here. Geoffrey, can you say to the committee whether this is the case: A notice of disallowance is ultimately a letter that outlines that a process could start in the future, but we are giving the minister that courtesy period of 30 days. That is my understanding. Realistically, whether it be a letter in the usual sense of a letter that we have already sent, I believe in June or May, or a notice of disallowance, which is essentially a letter, that would not be acted upon until we get back in February at the earliest. Therefore, I really don’t see the difference, but is that the case?

Mr. Hilton: Functionally speaking, the notice is a letter that is sent to the minister. It gives the minister notice that the committee intends on considering a report containing a resolution for the disallowance of the provisions identified in the notice. Nothing actually obligates the committee to consider that report after the 30 days. All the notice does is provide the minister with notice that the committee intends on considering a disallowance report.

[Translation]

Mr. Trudel: I don’t know. If I understand correctly, sending a letter of disallowance is a way of buying them time. We’ve already sent them a letter in which we gave them a little time, whether it was a disallowance or not, and if we decide to do it again today, we’re giving them even more time. I agree: after nine years, it’s just nonsense. I would agree that the committee should send the disallowance report now.

[English]

The Joint Chair (Senator Woo): Let me try to bring this to a conclusion, unless there are any final comments. What we know for sure is that if they don’t deliver on December 21, we will issue a notice of disallowance — everyone has agreed upon that — but that will not happen until February. The only difference between the first approach, which is to issue the letter, and the second approach, which is to wait until December 21, is whether the letter is issued. The outcome will be exactly the same if they do not deliver by December 21.

Therefore, it seems to me that the risk of issuing a letter is very small. It simply amounts to a reminder to them to follow through on what they have promised. If they do not deliver on what they promised, then we can act a little bit faster — actually, no, we cannot act a little bit faster because we are not meeting till February; we will end up in exactly the same place.

But I think we all agree we want to nudge them yet again, so we either nudge them with a letter that asks them to please hurry up or we nudge them with a letter of disallowance. I think both amount to pretty much the same thing.

I will just take another round of comments from the table, but I’m suggesting that we go for the letter of disallowance.

Mr. Davidson: I agree with you, chair. I think it starts the clock. They are going to have until February, when we meet, but at least that letter is out there, and we can consider that report in February if we wish to. If we just send a letter, we are just sending another letter as in “put another letter in the container; why not?”

The Joint Chair (Senator Woo): Any other comments? If there is no strong objection to triggering the notice of disallowance, then that’s how we will proceed.

Okay. Let’s move on to the next item, “Reply Unsatisfactory.”

SOR/2008-120 — VESSEL OPERATION RESTRICTION REGULATIONS AS AMENDED BY SOR/2010-34 AND SOR/2010-226

(For text of documents, see Appendix B, p. 21B:1.)

Mr. Hilton: There are two main matters to discuss in this file. To avoid any confusion, I would recommend dealing with the first matter in full before proceeding to the second matter.

Would that be agreeable to members?

Hon. Members: Agreed.

Mr. Hilton: For the first matter, amendments that address three of four remaining issues in this file were made in 2018. As detailed in the briefing materials provided for members, only one of those amendments, discussed in the first point, can be considered satisfactory, while the other two, discussed in the third and fourth points, raise new issues that warrant a response from Transport Canada.

I would therefore seek members’ consensus for counsel to follow up with the department on these two new issues.

The Joint Chair (Senator Woo): Please proceed.

Mr. Hilton: The second, more substantive matter is that the department no longer believes it is necessary to make changes regarding the remaining issue raised in this file.

That is of particular significance since that issue, discussed further in the second point in the briefing materials, is one that involves provisions that the committee considers unauthorized.

The provisions in question here, subsections 10.1(3) and 12(3), state that permit holders authorized to operate a vessel in restricted waters, as well as permit holders authorized to hold certain aquatic events and all persons taking part in those events, shall comply with the conditions set out in their permit.

While at first it may seem that these provisions are routine or even self-evident, their actual effects are quite serious. To explain, a permit, like the one referenced in these provisions, is an administrative document. Any conditions imposed on a permit are imposed administratively outside the legislative scheme. In other words, the conditions imposed on a permit are not provisions of a regulation or the statute under which those regulations were made.

The committee has therefore always held that the sanctions associated with contravening the conditions of a permit should be administrative in nature, like cancellation or suspension. Here, though, if someone has contravened a condition of their permit, it means that they have now contravened subsections 10.1(3) or 12(3) of the regulations. In turn, the regulations’ enabling act, the Canada Shipping Act, 2001, makes it an offence to contravene the regulations. The overall effect then is that subsections 10.1(3) and 12(3) of the regulations impose criminal responsibility on an individual failing to comply with the conditions of their permit.

As detailed in the committee’s attached Report No. 78 from 2007, which recommended the disallowance of an analogous provision in the Ontario Fishery Regulations, 1989, the joint committee considers such types of regulatory provisions unauthorized absent an enabling power clearly allowing for such provisions. Such authority can be found in a few statutes in the federal corpus, but no such authority exists in the Canada Shipping Act, 2001.

The committee’s position was communicated to the department, and at first, they had agreed to address the matter, but they have since changed course and now no longer believe any changes are necessary.

In now rejecting the committee’s position, Transport Canada raised similar arguments that Fisheries and Oceans Canada raised when questioned with the same issue in relation to the provision of the Ontario Fishery Regulations, 1989, discussed in Report No. 78, namely that a regulatory provision that demands compliance with the conditions of a permit is simply a regular rule of conduct and a breach of that rule, like any other, should be categorized as an offence.

This line of reasoning, though, was rejected by the committee in its Report No. 78, where the committee concluded that such an argument was disingenuous and ignored the reality that the only purpose of these types of provisions was to make the non‑observance of the terms and conditions of a licence or permit — which, again, are not legislative requirements — punishable as if they were. To ignore this fact, the committee stated in its report, was to ignore the clear intent and effect of the provision.

It was also concluded in the committee’s report that regardless of how one wished to categorize the nature of these provisions and even putting aside the issue of validity, these types of provisions can still be seen to contravene the committee’s criteria by trespassing unduly on rights and liberties, by representing an unusual and unexpected use of the enabling authority and by making the rights and liberties of a person unduly dependent on administrative discretion.

At this time, members have a couple of options on how to proceed. Given that it has been some time since the committee has communicated with the department on this file, counsel can reiterate the committee’s position with regard to provisions like subsections 10.1(3) and 12(3) in the letter being sent to the department under the first matter raised in this file and report back with any updates.

Or, given that these provisions are essentially identical to the provision of the Ontario Fishery Regulations, 1989 that formed the eventual basis of the committee’s Report No. 78, members may instead wish to send right now a notice of disallowance to the Minister of Transport for the repeal of subsections 10.1(3) and 12(3), a draft of which has been included in the supporting materials for consideration.

How would members like to proceed?

Mr. Webber: Here we are again with our recommendation being a notice of disallowance on this. It is just something that obviously has to happen here. Initially, it appeared that the department understood our position regarding this file, yet they now have a different stance on this. I think that we have to now escalate from the department level to the minister. I believe that we need to send out a notice of disallowance.

Mr. Louis: Can I ask counsel for more clarity? When Bill C-68 was passed in 2019, it had provisions that were similar with licences. Can you tell me how that relates?

Mr. Hilton: I apologize. I’m not too familiar with Bill C-68. Was it in reference to amending the —

Mr. Louis: The Fisheries Act.

Mr. Hilton: For Bill C-68, in that case, the way the issue was resolved in the fisheries file was that the necessary authorization for the regulatory provision in the Ontario Fishery Regulations was added to the Fisheries Act. From the committee’s point of view, the issue has been resolved because there is now necessary authority in the Fisheries Act to authorize regulatory provisions that make the contravention of a term or conditions of a permit an offence. The issue was resolved in that case because authority can be found in the Fisheries Act, but that same authority is not found in the current file, which would be under the Canada Shipping Act, 2001.

Mr. Louis: I’m just wondering how we can work with that, saying there is legislation that exists already, or get more clarity from the department and ask them what they think.

Mr. Hilton: There are essentially two different solutions. Either the regulatory provisions are repealed or necessary authority is added to the Canada Shipping Act, 2001 and that that authority is implemented retroactively to the date that these regulations were made.

The Joint Chair (Senator Woo): Is it correct to say if we don’t issue a notice of disallowance, we in effect contradict our previous position on a similar issue. Is that a fair conclusion?

Mr. Hilton: That’s one way of looking at it. There are many provisions in the federal corpus that have provisions like this that the committee has objected to.

The Joint Chair (Senator Woo): It is a complication for us to contradict ourselves. I think all of us should be aware of that. By the same token, I would like to assume they are giving us a good faith objection to our interpretation.

Can we talk a bit more about their good faith rejection of our interpretation and why we might want to think a little harder about whether there is any basis to it? I’m hoping that some of us with legal training and who know the courts well might want to jump in on this. And I’m looking at you.

Mr. Hilton: The department’s letter was only very general. It did not go into as much detail as Fisheries and Oceans Canada had provided. The arguments that they did put forth were nearly identical to those of Fisheries and Oceans Canada , and the committee had rejected those arguments.

In essence, in the report, it was concluded that under our system of law and government, it is accepted that criminal sanctions attach only to the contraventions of a requirement that has been established by legislation. And Parliament in the Canada Shipping Act, 2001 provided that only contraventions of the act and the regulations are to constitute offences. In this case, though, there is a situation where if somebody contravenes the terms of their permit, they have now subjected themselves to criminal liability.

That said, as I mentioned, it has been some time since the committee has communicated with Transport Canada on this file so it could also be possible to seek their further views on the issue.

Mr. Webber: As you mentioned, we cannot ignore a long‑standing position of this committee. As detailed in Report No. 78 did recommend a disallowance of similar provisions in the Ontario Fishery Regulations, 1989, and we can’t contradict that. We need to continue to move forward and immediately put out a letter of disallowance.

Senator Dalphond: I may disappoint you. My first comment is that if we need 24 pages to explain a clear position, it’s because it’s unclear. The courts will decide after hearing arguments on both sides. Report No. 78 is 24 pages long, trying to explain, based on case law, that was with them at the time, it is the state of the law now? I will not opine on that, I’m just saying that this is 24 pages to make your point.

My second point is that I read it, and I must admit I like the policy — the legal reasoning, I won’t opine upon, I’m no longer a judge. But I like the policy issue of saying that, in case of doubt, we don’t recognize the power to indirectly create some offences. I like this, as a legislator, I like this approach, so I agree with the report. Not the legal opinions — I don’t opine — but the spirit of it, yes, I agree with the policy decision.

However, where I may be in disagreement with some of the comments made is because on page 3 of the notes that we got, the bracket period says — I think Mr. Louis referred to it — note that Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, which will see Royal Assent on June 21, 2019, which is almost six years ago, added provisions the Fisheries Act explicitly stating that contravention of the terms or conditions of the licence imposed under the Fisheries Act will constitute an offence.

The loophole that exists at the time, the legislators spoke and said, “I’m fixing this problem.” I wonder if we have to disallow something that applies, obviously, if there’s an issue between 2019 but no longer an issue after 2019.

I wonder if it’s the proper use of our authority — I don’t know how many charges are pending that were charged before 2019, but I suspect we may find very little, maybe none. I wonder if we should not use our power in more important cases than this one, where the problem seems to be fixed. That’s my comment.

The Joint Chair (Senator Woo): The risk of not issuing a notice of disallowance — tell me if this interpretation is incorrect — is that somebody could be charged criminally for violation of one of the regulations, and if that happens, we could have been seen to not have done our job because, on the face of it, we don’t allow this kind of practice. The only way for that person or persons to resolve that problem is for the courts to then rule on the legitimacy of the charges, and that’s going to be a lot of hassle for somebody going to the courts.

It may well be that the department will not issue any criminal charges on anyone, because they’ve taken a new interpretation post-2019, in which case there’s no problem, but do we want to run that risk, so to speak, or do we want to do the pure act of what we’re supposed to do and put the onus on the department, essentially, to demonstrate to us and to Canadians convincingly that there’s no more risk of criminal prosecution? I don’t know if I’ve summarized it correctly, but that’s how I’m working it through it in my head.

Mr. Hilton: It might be worth clarifying that Bill C-68 amended the Fisheries Act, so there’s authority now in the Fisheries Act, but there’s still no authority in the Canada Transportation Act, 2001, which is the act under discussion in this file.

The Joint Chair (Senator Woo): The risk is still there.

Mr. Carrie: I want to thank the senator for his wise words to us, but for me it’s also a process issue. They originally agreed with us, and now we have nothing from them. If we don’t write the letter, I would say the onus should have been on them to write to us and explain it, which they’ve chosen not to do. As you said, from a credibility issue, we need to be consistent and give clarity to those individuals who this might affect. I’m in agreement to write the letter.

Senator Dalphond: I want to add that Mr. Hilton makes a good point. The Fisheries Act certainly solved the issue. It was not done on this type of legislation so, strictly speaking, we can say the issue still exists under the other legislation. As I said, I think it’s a good policy to promote or accept doing indirectly what we cannot do directly.

The Joint Chair (Senator Woo): We’re heading in a direction of a notice of disallowance. If nothing else, to be consistent with our previous positions and to protect Canadians who might be harmed by the wrongful use of a violation case.

Mr. Louis: I have two questions for counsel. One, can you expand? The last we heard from the department — because what I had was the December 2017 letter, and obviously something since then. Two, were there any cases brought up pre-2019 that we know of, because as you said this would go back to pre-2019.

Mr. Hilton: The last time the committee heard from the department was back in 2017, and it was at that time when counsel was seeking a progress update on the remaining amendments in the file when the department had changed their point of view. They provided a brief explanation as to why they no longer thought the amendments were necessary. Those brief arguments were nearly identical to the arguments contained in the Report No. 78, and those arguments were dismissed by the committee.

Since then, the committee has not heard from the department or reached out to the department, so the committee does not know their more in-depth legal analysis on the issue. The committee knows Fisheries and Oceans Canada’s point of view, because that file has been litigated between Fisheries and Oceans Canada and the committee to some extent.

In this present case with Transport Canada, the issue has not been discussed all that much. At first, the department agreed to address the issue, they suddenly changed their minds and no longer believe it is necessary to make the necessary amendments. They didn’t provide a very in-depth legal explanation. The committee therefore cannot benefit from any further legal analysis of the issue the way it benefited from Fisheries and Oceans Canada’s, where they were able to analyze Fisheries and Oceans Canada’s in-depth legal arguments. The committee just doesn’t have those arguments in the present case.

Mr. Louis: We haven’t heard back from them for seven years, and so if we just come up with a notice of disallowance without any explanation, that doesn’t seem to be the way things work. I know we send lots of letters — maybe too many — but in this case, if you haven’t heard in seven years, and all of a sudden, out of the blue, we’re saying disallowance, that concerns me without any clarity. That’s a lot of time in between.

The Joint Chair (Mr. Albas): My question is for Mr. Hilton. By the way, very good job when you said the department had changed course in the original briefing. I thought that was quite funny, nautical-wise.

Mr. Webber said something very interesting. He said that we need to take this from the departmental level to the ministerial level. It’s quite possible, that the minister — I believe it’s a new minister, I believe, Minister Anand — probably hasn’t seen this or heard this, and simply doing a notice of disallowance does two things in my mind, and you can let me know if this is the case. They could either brief the minister on the position of the committee as well as the department, and then Senator Woo had mentioned the legislative fix that could be done, as well. All of those things can be considered by the minister.

When we do a notice of disallowance, Mr. Hilton, we don’t necessarily say to what they are to do; we say what we are looking at as possibilities. That then gives the minister an opportunity to be briefed and to make up her mind as to how the department should carry forward and whether legislative changes should happen. Is that the case, or should they simply let the process happen?

I will note that when we wrote to the Minister of National Defence, Anita Anand originally, we suddenly got a response on an issue the Department of National Defence had clearly dragged its feet about.

Mr. Hilton: The committee generally doesn’t dictate to a department how it wants an issue resolved. Sometimes, the committee can put forth suggestions, but with the notice of disallowance and any report containing the resolution for the disallowance, all that does is repeal the provisions in question, and then it’s up to the department and the minister to come up with their own solutions.

In this case, a solution, as the committee saw in Report No. 78, would be to add the necessary authority authorizing these regulatory provisions in the Canada Shipping Act, 2001.

Mr. Zuberi: I would suggest this isn’t exactly analogous to what we did with respect to the notice of disallowance. That was more of a classic case, and this is somewhat different in terms of where the department is now — I don’t know the exact terminology — but is taking a different position, if I understand correctly.

I would suggest that we actually hear from department officials or whomever we think should be summoned to committee as to why they have a differing opinion. At that point in time, then we can take a course of action.

We should understand why they actually have a differing opinion.

So the two cases are not analogous; this is a separate case. I suggest we hear what they have to say.

The Joint Chair (Senator Woo): I think there’s a case for that. We’re assuming that their reasoning for dispensing with this problem is the exact same reasoning as that which was used under the Fisheries Act. We don’t know that for a fact, but we are making that assumption. Is that correct? For us to issue a notice of disallowance based on something we don’t know, in terms of what their reasoning is, seems a little strong to me. That is a personal opinion; I’m just putting it out there.

We may believe they’ve got no other reasoning — there is no other reasons they could come up with — except for the one used for the Fisheries Act, in which case, we have no choice but to disallow because we disallowed the previous one. But we’re not exactly there yet.

So what would be the intermediate step of us? I think I know the answer, but can you help us? Were we to take an intermediate step, short of a notice of disallowance, we would ask them to explain themselves?

Mr. Hilton: It would be exactly that. Maybe ask them to flush out their argument. As I mentioned, the department’s response back in 2017 just provided a very short reason. It did not provide an in-depth legal analysis like the committee had received in the fisheries file. The department might very well raise the same legal arguments. They might have novel arguments to raise, as well, but at this point, the committee doesn’t know just because it hasn’t heard from the department and hasn’t reached out to the department since 2017.

The Joint Chair (Senator Woo): Can we have a discussion on that option? We don’t have to accept it, but there is the idea that we give them a chance to properly explain why they don’t think this is no longer a problem.

Mr. Carrie: I don’t often want to disagree with the chair, but with all due respect, maybe Mr. Hilton could advise us as to the difference. If we send the notice now, my understanding, process-wise, is that it’s basically going to tell them that we’re going to be doing a report and that when we do a report, the option is for them to come and explain to us at that time.

Again, apparently they agreed with us. Now they disagree with us. They have not given us any explanation for that.

To your previous point, Mr. Chair, there are Canadians who are affected by this. To delay things further, this just gets the clock ticking for them. It’s quite a reasonable approach, and it will give a strong message to Canadians who may be affected that we’re actually going to take action on it, be consistent and give them an idea of how they can proceed.

The Joint Chair (Senator Woo): Are there other responses here?

Mr. Hilton: There is a way to combine both options. If the committee were to issue a notice of disallowance, it could also simultaneously seek out the department’s further views on the matter. Nothing obligates the committee to actually follow through with the disallowance process.

It could issue the notice of disallowance while also requesting the department’s further views on the matter. Then, following that, the committee could consider whether their views are acceptable. If they’re not acceptable, then the committee always has the notice of disallowance to fall back on. If it does find the department’s views acceptable, then the matter could be considered resolved and there would be no further action needed with regard to the notice of disallowance.

All the notice of disallowance does is put the minister and department on notice that the committee intends on considering a report that contains a resolution for the disallowance of the provisions in question. It doesn’t actually repeal the provisions right away. There’s still a process afterward.

Mr. Zuberi: For those members who have been part of this committee for a while, as I and others have, we know that disallowance is one of the major tools available to this committee. It’s one of the final and most maximal tools we have in order to compel departments to listen and act. As this committee knows, I’ve been in favour of disallowance in some instances and have actually supported that idea.

[Translation]

We discussed the idea of having witnesses on certain occasions. In some debates, it was said that it wasn’t necessary, and others said that it was a good thing to have witnesses. To deal with this specific issue, it’s important to have witnesses, if only to clarify their ideas.

[English]

As I mentioned earlier, this is not analogous to what we just did with respect to disallowance.

So I would strongly suggest that we actually hear from the witnesses. If we’re not satisfied, we can move to one of the most maximal tools we have in our tool box, which is disallowance. I would suggest that would make logical sense in how we would approach this particular matter.

Mr. Louis: I would agree, because there hasn’t been a dialogue for seven years. If this were a back and forth that were constantly happening, then we would say they’re dragging their feet, but this conversation went cold seven years ago. To go from nothing to the maximum use of what we can do, without an explanation — who knows what happened in the last seven years. Maybe they have a good reason, so I would agree with Mr. Zuberi’s idea.

The Joint Chair (Mr. Albas): I wanted to go back to what Senator Dalphond had said, which is that in the original report, which was Report No. 78, I believe, on the Ontario Fishery Regulations, it was a 24-page document outlining the legal arguments. I’m not a lawyer, so I’m just simply going to point out that while I can read our REGS notes and have some ability to understand them, I do heavily rely upon counsel to explain certain things where I might not have the understanding.

So having officials come — while I would usually welcome that, I think the chances of everyone being able to effectively ask questions and get to the root of the issue — I don’t think that’s a good use of time. Effectively, we would need to go point by point through those 24 pages and ask them if they are in agreement with the committee’s interpretation vis-à-vis what was said regarding the fishing regulations; it’s analogous to the situation here.

I would suggest to the committee that we maybe consider that a response to counsel where they write it down, and then counsel can review it, and then come back so we can see what they wrote and ask questions of our counsel about whether that’s acceptable. I think that sometimes when you’re dealing with technical legal arguments, it’s better to have it written down than to have oral hearings. Not all of us were a former judge.

The Joint Chair (Senator Woo): You’re proposing a request for a written explanation of why they considered this issue —

The Joint Chair (Mr. Albas): Regardless, I would prefer a written process rather than an oral hearing, but committee members can do what they believe.

The Joint Chair (Senator Woo): We’ll ask counsel to respond.

Mr. Hilton: The committee is already sending a general letter to the department on the new issues raised in the two other provisions in the regulations. Counsel can, of course, add to that letter a request for the department to provide a more fulsome view on the matter while reiterating the committees’ position at the same time.

Mr. Zuberi: That’s a logical argument that Joint Chair Albas makes and satisfies the objectives even better than having witnesses, as you outlined, to have it in writing and be able to analyze that. We are very accustomed to reading lengthy documents and analyzing them, but this will allow for a better and more thorough response.

Mr. Webber: Can we include in the letter a timeline of when we can get this completed by the department? Maybe we should talk about that timeline and what it should be. We’re getting into the Christmas season and such, but a response needs to be expedited here.

The Joint Chair (Senator Woo): We’re not back until February, anyway. What is it, November? What is our typical timeline now, 60 or 90 days?

Mr. Hilton: The committee usually gives departments four months to provide a substantive response. But, of course, counsel can request in the letter any other timeline that members wish.

The Joint Chair (Senator Woo): Does anyone object to the standard four-month timeline? If not, let’s go with that. We’ve agreed to combine all of these issues in one letter, and to seek a full explanation on this last issue.

Thank you, that was slightly more difficult, but it was a very good discussion, I thought, and it will be help for our future deliberations.

The next item is also Mr. Hilton.

SOR/2014-95 — EXPERIMENTAL LAKES AREA RESEARCH ACTIVITIES REGULATIONS

(For text of documents, see Appendix C, p. 21C:1.)

Mr. Hilton: Five issues were initially raised with Environment and Climate Change Canada in this file. As members can see in the briefing materials, each of the issues are at various stages of being addressed. For one issue, concerning a French-English discrepancy, promised amendments have yet to be made. For one issue concerning unnecessary repetition from other legislation, the department’s most recent response may be considered satisfactory, although a further point of clarification could be sought on the matter. For the remaining issues, which concern, again, some unnecessary repetition from other legislation, as well as a couple of provisions that could be considered unauthorized, the department has provided further responses on these points, but none appear satisfactory.

Given that it has again been some time since the committee has communicated with the department on this file, it is recommended that counsel send a letter to the department seeking their current views on these matters.

Mr. Webber: I wanted to thank Mr. Hilton, and I agree with his recommendation to write a letter on each of the concerns laid out. Thank you.

The Joint Chair (Senator Woo): On the issue of lack of clarification, do you want our view on whether we feel there’s sufficient clarification? Because you put a question mark around that issue.

Mr. Hilton: Essentially, yes.

The Joint Chair (Senator Woo): We do want more clarification.

Mr. Hilton: The response the department had provided on that point appeared satisfactory, but their response had also indicated that there could be some unintended consequences with the way the regulations and its enabling authorities are currently enforced, operated and managed, so it was recommended to first consider the response on the point satisfactory, but to also follow up on a secondary point on that issue.

The Joint Chair (Senator Woo): If there are no other comments, then we will proceed as you recommend. Thank you.

The Joint Chair (Mr. Albas): Okay, next up is item 4.

SOR/2020-105 — CANADA EMERGENCY STUDENT BENEFIT REGULATIONS

(For text of documents, see Appendix D, p. 21D:1.)

Julie Béchard, Counsel to the Committee: This is the second time the Canada Emergency Student Benefit Regulations are before the committee. Two issues were originally raised with the Department of Employment and Social Development. At its meeting in April of this year, the joint committee accepted the department’s explanation for one item and decided to write for an update on the last promised amendment. The regulations incorporate by reference two lists of educational institutions that students must have attended to be eligible for the program.

One of the lists was incorporated in the regulations with an incorrect title in the English version. The department agreed in August 2021 that it was an error that it would correct in a future miscellaneous amendment regulations package. This fall, the department wrote to say it had reversed its decision after discussing the matter with the Department of Justice. Since the deadline to apply for the benefit was September 30, 2020, the practical effect of the correction would be insignificant.

The drafting error in the provision only applies to situations pre-September 2020, and the committee might agree that it causes little confusion. At the same time, the amendment requested by the committee is small, uncontroversial and can be completed in an expeditious manner. As well, maintaining a factual drafting error runs contrary to the principles of government responsibility to uphold its legislation and present its laws according to good drafting practices.

There are two suggested courses of action. The first is that counsel write to the department to ask that they reconsider leaving a drafting error in the regulations. The second is that the joint committee’s file on SOR/2020-105 be closed.

How would the committee like to proceed?

Mr. Louis: We had some good discussions on some pretty heavy topics. For this one, it was March 2020, and the beginning of COVID, and I believe the change they were looking for was changing it from “master list of certified educational institutions,” to a “master certification list.” That’s it. That was the change they were looking for. The program was closed years ago, and my colleagues should say that this one is okay, we don’t need more bureaucracy.

Mr. Davidson: Hear, hear. I would agree with my colleague on this one, definitely.

The Joint Chair (Mr. Albas): Is there a consensus? All right.

Next up is Part Action Taken.

SOR/2016-38 — REGULATIONS AMENDING THE PROTECTION OF PASSENGER INFORMATION REGULATIONS

SOR/2024-65 — REGULATIONS AMENDING THE PROTECTION OF PASSENGER INFORMATION REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix E, p. 21E:1.)

Ms. Béchard: This is the fourth time SOR/2016-38 is before the joint committee. In a letter from October 2023, the Canada Border Services Agency wrote that amendments were forthcoming for two issues related to English-French discrepancies. These were corrected in amending regulations that raise no issue. The agency also advised that although initially promised, there would be no change in relation to a third concern after conferring with their jurilinguists. The agency’s explanation can be considered acceptable. Within the regulations, these terms are used consistently.

Counsel recommends that the joint committee’s file on SOR/2016-38, and SOR/2024-65 be closed.

The Joint Chair (Mr. Albas): I’m seeing some nodding. Thank you very much. Moving on. Did you lump that all in together?

Ms. Béchard: That was the regulation that corrected the English-French discrepancy in SOR/2016-38.

The Joint Chair (Mr. Albas): We’ll move on to SOR/2019-133.

SOR/2019-133 — REGULATIONS AMENDING THE PEST CONTROL PRODUCTS REGULATIONS (LABELLING)

(For text of documents, see Appendix F, p. 21F:1.)

Ms. Béchard: This is the first time the joint committee is examining these regulations. In 2019, counsel expressed concerns to the Department of Health related to drafting deficiencies, French-English discrepancies and labelling requirements.

All but the labelling requirements on pest control products have been addressed. The department had indicated early this year that a progress report on these amendments would be provided by October, but no such correspondence has been received.

It is suggested that a letter be written to the department requesting a progress report on the last amendment.

Mr. Carrie: Thank you very much, counsel, for the work on this. I agree; I think that’s a good way to proceed.

The Joint Chair (Mr. Albas): All right. Moving on to reply satisfactory, item 7.

U2020-8 — INTERIM ORDER RESPECTING THE PREVENTION AND ALLEVIATION OF SHORTAGES OF DRUGS IN RELATION TO COVID-19

U2020-9 — INTERIM ORDER RESPECTING DRUG SHORTAGES (SAFEGUARDING THE DRUG SUPPLY)

(For text of documents, see Appendix G, p. 21G:1.)

Ms. Béchard: These interim orders are before the committee for the first time. There were three concerns regarding the authority in these orders as detailed in the briefing materials provided to the committee.

The Department of Health’s response can be considered satisfactory.

It is recommended that the joint committee’s files on U2020-8 and U2020-9 be closed.

The Joint Chair (Mr. Albas): Thank you. Progress. We like progress.

[Translation]

SOR/2007-76 — Regulations Amending the Food and Drug Regulations (1158 — Food Additives)

(For text of documents, see Appendix H, p. 21H:1.)

Ms. Béchard: SOR/2007-76 is being presented to the joint committee for the fifth time. This regulation contained inconsistencies in the text, in tables and in a schedule. Regulations have corrected all inconsistencies except those in the tables.

In February of this year, a letter from the Department of Health informed the committee that the draft regulations in which the tables are repealed had been published. This represents progress. It is recommended that a letter be sent to the department to obtain confirmation that the regulation will be published next spring.

[English]

SOR/2007-31 — VESSEL CERTIFICATES REGULATIONS

(For text of documents, see Appendix I, p. 21I:1.)

SOR/2021-274 — ORDER REPEALING THE ESTABLISHMENT LICENCE FEES REMISSION ORDER (INDICATION OF AN ACTIVITY IN RESPECT OF A COVID-19 DRUG)

REPEALS: SOR/2020-213 — ESTABLISHMENT LICENCE FEES REMISSION ORDER (INDICATION OF AN ACTIVITY IN RESPECT OF A COVID-19 DRUG)

(For text of documents, see Appendix J, p. 21J:1.)

The Joint Chair (Mr. Albas): I see a nodding of heads. Is everybody comfortable with that?

I believe action having been taken now, we just simply thank counsel for its work. This is also the case for Statutory Instruments Without Comment.

SI/2020-7 — ORDER AWARDING THE OPERATIONAL SERVICE MEDAL WITH THE HAITI RIBBON

SI/2020-8 — ORDER AWARDING THE OPERATIONAL SERVICE MEDAL WITH THE SUDAN RIBBON

SI/2020-9 — ORDER AWARDING THE OPERATIONAL SERVICE MEDAL WITH THE HUMANITAS RIBBON

SI/2020-70 — ORDER DESIGNATING THE COMMISSION THAT IS NAMED THE JOINT PUBLIC INQUIRY INTO THE NOVA SCOTIA APRIL 2020 TRAGEDY AS A DEPARTMENT FOR THE PURPOSES OF THAT ACT

SI/2022-43 — PROCLAMATION REQUESTING THAT THE PEOPLE OF CANADA SET ASIDE SEPTEMBER 19, 2022, AS THE DAY ON WHICH THEY HONOUR THE MEMORY OF HER LATE MAJESTY QUEEN ELIZABETH THE SECOND, WHO PASSED AWAY ON SEPTEMBER 8, 2022

SI/2023-15 — PROCLAMATION FIXING VICTORIA DAY AS THE DAY FOR THE CELEBRATION IN CANADA OF THE BIRTHDAY OF THE SOVEREIGN

SI/2022-29 — ALAN WALKER REMISSION ORDER

SI/2021-99 — CÉDRIC GOUILLART REMISSION ORDER

SI/2022-28 — MOISE LAFOND REMISSION ORDER

SOR/2020-62 — INCOME SUPPORT PAYMENT AMOUNT REGULATIONS

The Joint Chair (Mr. Albas): Is there any other business members would like to raise? Merry Christmas to everyone. Thank you to Senator Woo and to the committee for handling those two issues.

(The committee adjourned.)