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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS
OTTAWA, Monday, May 30, 2022
The Standing Joint Committee for the Scrutiny of Regulations met with videoconference this day at 11 a.m. [ET] to review Statutory Instruments.
Mr. Blake Richards and Senator Yuen Pau Woo (Joint Chairs) in the chair.
The Joint Chair (Senator Woo): Members, welcome to this meeting of the Standing Joint Committee for the Scrutiny of Regulations.
This being a hybrid meeting, I’d like to remind members of the committee to please keep their microphones muted at all times unless recognized by name by the chair. Should there be any technical challenges, particularly in relation to interpretation, please signal this to the chairs or the clerks, and we will work to resolve the issue. Finally, I would like to remind all participants that Zoom screens should not be copied, recorded or photographed.
Let’s move to our agenda. Item 1 is before us for the first time. You would have received a package with all 129 pages in your email.
SOR/2019-175 — REGULATIONS REPEALING THE PUBLICATION OF STATUTES REGULATIONS
(For text of documents, see Appendix A, p. 4A:1.)
Shawn Abel, Counsel to the Committee: As was noted, this repealing instrument is before the committee for the first time. This is an interesting file in that it relates, in a small part, to the committee itself.
Prior to the repeal of the Publication of Statutes Regulations by this instrument, those regulations set out certain formatting and design specifications for the printing of the Annual Statutes of Canada. The parent act does not require that such regulations exist, so their repeal on June 3, 2019, allowed for the annual statutes to be published according to whatever formatting and design specifications the government chooses.
These regulations were made pursuant to the Publication of Statutes Act. That act requires that the annual statutes be printed and distributed to certain recipients as soon as practicable after the end of every calendar year. The list of recipients who are entitled to receive copies include the joint chairs of the committee.
In practice, the Annual Statutes are received by the secretariat and form part of the committee’s library, which is used for counsel’s work. While in the digital age, these tomes are not strictly necessary, they are still sometimes helpful in making the work more efficient.
When this repealing instrument was reviewed in November 2019, counsel took note that the Annual Statutes for 2016, 2017 and 2018 had not yet been received; indeed, they had not yet been printed. Ultimately, they would not be delivered until early 2020.
The regulatory impact analysis statement, or RIAS, accompanying this repealing instrument explains that the printing had not been possible from January 2016 onward due to the adoption by the Department of Justice of a new layout for the printed and PDF versions of federal legislation. The new layout was incompatible with the printing specifications that were set out in the regulations.
This gave rise to several questions, which counsel put to the Department of Justice. Question 1 asked how the department interprets the statutory requirement to print and distribute the Annual Statutes as soon as practicable after the end of every calendar year. It seems difficult, if not impossible, to consider this requirement to have been met for the 2016 to 2018 years. Given that the format changes implemented by the department in January 2016 were incompatible with the printing specifications set out in the regulations, perhaps it was not possible in practical terms to fulfill this requirement until the regulations had been either amended or repealed. Nonetheless, the statutory requirement still applied in respect of each year.
The department did not respond to this question, which may, perhaps, be considered a tacit admission that the requirements of the act were not met.
Questions 2 to 4 asked why the regulations had not been repealed until three years after the format change had been made to the legislation. Why, as mentioned in the RIAS, did it take almost two years after the format change to begin consultations on the regulations? Why were the regulations not repealed until another year and a half after the consultations?
The department’s reply indicated that a consultation was initiated by Public Works and Procurement Canada in the fall of 2017. That consultation included 44 libraries on the distribution list for the Annual Statutes, including two international libraries. For whatever reason, despite being on the distribution list, the joint committee was not consulted.
The reply goes on to state that, after feedback had been received, Public Works undertook steps to repeal the regulations. Time frames for the consultation and any further steps were not provided in the department’s reply. Finally, the reply indicated that Public Works launched an invitation to tender for the printing, binding and distribution of the 2016 to 2018 volumes in the summer of 2019.
The department’s reply did not explain why the consultations were not commenced until 2017. That was nearly two years after the format of federal legislation had been changed and certainly far too late to permit the annual statutes for 2016 to be printed and distributed during the 2017 year.
Although not stated by the department, it may or may not be relevant to note that, in January 2016, very shortly after the format had been changed, the committee challenged the legal authority of the department to carry out, in part, those administrative formatting changes. This matter was concluded to the committee’s satisfaction on April 11, 2019.
Although further questions regarding the timing of the consultations and the repeal of the regulations could be pursued, these logistical matters may simply elide the true issue at hand. The government was presumably aware of the requirement to print and distribute copies of the Annual Statutes as soon as reasonably practicable after the end of each calendar year, yet the government evidently developed and implemented major administrative changes to the format of legislation, which took place in January 2016, without having made arrangements or having held consultations in advance to account for the legal requirements on the printing and distribution of legislation. As a result, printed copies of the Annual Statutes were delayed for several years, and subsection 10(2) of the act was almost certainly contravened in respect of the 2016 to 2018 years.
As the department’s letter pointed out, this failure to print and distribute copies of the Annual Statutes is not likely to have deprived any recipients or clients of access to the law, which is available in an online consolidated form. This is, however, somewhat beside the point. The government is not free to ignore statutory obligations imposed by Parliament simply because it failed to prepare adequately for its own administrative priorities or otherwise finds it inconvenient to do so. Perhaps a reminder of that crucial principle is necessary.
Finally, question 5 inquired as to when the Annual Statutes for 2016, 2017 and 2018 would be printed and distributed. As noted in the later correspondence on this file, those volumes were delivered in early 2020. The department’s reply stated that it hoped to produce the 2019 edition by the first half of 2021. The committee’s secretariat did receive copies of the 2019 volumes at some point in 2021, although it is unclear precisely when, due to the pandemic circumstances. It may be questionable whether this delivery should have been received in 2020 in accordance with the act; however, the advent of the pandemic should, perhaps, colour the interpretation of the requirement under the circumstances.
Thus, to conclude, it does not appear that the printing and distribution requirements of the act were observed in relation to 2016 to 2018 volumes of the Annual Statutes. There is no practical remedy for the delay in printing and distribution of the Annual Statutes. It seems clear that the fault lies at least partially in the failure to properly prepare for the consequences of changing the formatting and production of legislation. Nonetheless, in a society premised on the fundamental principle of the rule of law, recognition must be maintained that the executive is not free to simply ignore a statutory obligation.
Members may wish to consider a letter to the Minister of Justice, which could bring these matters to his attention and seek his acknowledgement of the importance of adhering to the rule of law. I am in members’ hands as to how they would like to proceed.
Senator Dean: Thank you for the very clear explanation of this labyrinthine issue. It seems clear to me that a letter is warranted, bringing this to the attention of the minister, and so I would move that.
Mr. Garon: As I understand it, the department was extremely late in publishing the Annual Statutes for 2016, 2017 and 2018. The 2019 volume has not yet been published because of the pandemic. While I appreciate, as counsel mentioned, that those circumstances should colour our interpretation of the requirement, it’s clear that the department was in the bad habit of not meeting the requirement before the pandemic. For that reason, I find it hard to accept that, suddenly in 2019, the pandemic disrupted the department’s usual practice. That should be pointed out to the minister. It’s worth mentioning that the committee has a hard time believing that the pandemic prevented the government from publishing the Annual Statutes.
The Joint Chair (Senator Woo): Thank you, Mr. Garon.
I think we all agree that a letter stating our views about the unsatisfactory nature of the commitments to publish these statutes should be written. Unless I see opposition, let’s move to the next item.
SOR/2015-212 — REGULATIONS AMENDING THE NATIONAL ENERGY BOARD ACT PART VI (OIL AND GAS) REGULATIONS
(For text of documents, see Appendix B, p. 4B:1.)
Mr. Abel: Section 10.1 of those regulations defines natural gas as meaning essentially:
. . . a mixture of gas composed of at least 85% methane and that may also contain other hydrocarbons . . . as well as minor amounts of non-hydrocarbon gas and impurities.
The issue for the committee has been the meaning of the words “minor amounts” in this definition.
The committee previously considered that the term “minor amounts” appears to be vague and subjective but, simply, it does not appear possible for a person to read section 10.1 of the regulations and know precisely at what proportion non-hydrocarbon gas and impurities would cease to be a minor amount.
Previous correspondences from the department have suggested that it equates minor amounts with trace amounts, being typically less than 2% by volume of the natural gas. Although the committee has repeatedly recommended that section 10.1 be amended to clarify its meaning, the department remains opposed to doing so.
In late 2018, the department suggested that it may be fruitful to meet with committee counsel on this matter. In April 2019, joint chairs wrote to the Minister of Natural Resources to arrange such a meeting. Counsel met with the relevant departmental officials on July 23, 2019, at which time it was agreed that the department would shortly provide a letter to the committee concerning its understanding of the discussions that took place.
That letter was not forthcoming from the department. Follow-up requests were made by counsel in October 2019, March 2020 and August 2020. The department finally responded on August 31, 2020.
In this letter, the department argues that the definition of natural gas in section 10.1 applies to and is relied upon by a relatively small number of highly specialized stakeholders, including companies in the business of exporting natural gas as well as the Canada Energy Regulator that oversees their operations. The department states that within the natural gas industry, the concept and meaning of minor amounts of non-hydrocarbon gas and impurities is well understood. The phrase is a term of art for the implicated stakeholders.
The department’s letter also describes in detail the consultations it undertook with provincial regulators and industry organizations in Alberta and British Columbia, in which no concerns were expressed regarding the meaning of the term “minor amounts.” Based on this information, a clarifying amendment may not be necessary if it can be reasonably said that section 10.1 as it is currently worded would not likely cause confusion or ambiguity as to the level of permitted non-hydrocarbon gas and impurities. The letter also contains some material that is objectionable or irrelevant. For instance, it is noted that the word “minor” is used to describe impurities in natural gas in Alberta’s regulatory framework. The adequacy, as the case may be, of terms used in provincial legislation or administration is hardly relevant to the federal legislative context.
The letter also suggests that quantifying minor amounts would require companies to measure various types of non-hydrocarbon gas and impurities in natural gas. On the one hand, this comment seems to underscore that the reference to minor amounts in section 10.1 is meaningless since apparently those elements are not being measured. Given that section 10.1 requires that only minor amounts are permitted, one might presume that these amounts should already be subject to measuring and monitoring. The lack of a precisely specified amount does not obviate that the definition sets out a rule that must be observed. By law, a mixture with any amount too great to be considered minor would fail to meet the definition of natural gas for the purposes of the regulations. It is somewhat concerning that the department still does not seem to grasp this basic concept.
Moreover, the committee already explained to the department that it would not be necessary to specify a numerical percentage of non-hydrocarbon gas and impurities if that is not desired. It would be sufficient simply to remove the words “minor amounts” so that section 10.1 merely permitted the presence of non-hydrocarbon gas and impurities. In any case, those elements would still be limited to a maximum of 15% of the mixture. This is so because the preceding portion of the definition states that at least 85% of the overall mixture must be comprised of methane.
Another option would be simply to remove the entire reference to non-hydrocarbon gas and impurities, since apparently the presence of these elements are not being verified in any case.
In short, the clarification of section 10.1 should be a fairly simple exercise. Overall, the committee is presented with a situation in which the department still refuses to make a clarifying amendment. It has, however, confirmed that the existing provision is understood as a term of art within the regulated industry and is therefore unlikely to cause confusion and ambiguity. It appears, based on this information, that the continued inclusion of the term “minor amounts” is unlikely to put regulated persons at risk of an arbitrary interpretation.
It is, of course, always preferable to clarify a legal provision where a deficiency has been identified. However, the likelihood of a negative impact in this case seems to be low to nil. The question is whether the committee finds it acceptable that this provision be left with its current wording or, if not, whether the committee should continue to press for an amendment.
I am in members’ hands as to how they would like to proceed.
The Joint Chair (Senator Woo): Is it my understanding that you are recommending that the reply is satisfactory, as the notes seem to suggest?
Mr. Abel: I think it would be open to the committee to accept it as satisfactory. There are precedents for the committee to accept undefined terms — which to a layperson may seem somewhat vague — if they are understood as a term of art within the regulated industry. In this case, I leave it to the committee as to whether they’re satisfied.
The Joint Chair (Senator Woo): And yet, the option you have offered to the department is to remove the reference to “minor.” This amounts to the same thing as the status quo, does it not, the fact that they are not even measuring so-called minor amounts?
Mr. Abel: Based on what the department wrote in their last reply, yes, that seems to be the case. The difference between this case and the many others that the committee confronts is that the department is extremely reluctant to make the amendment, and that is the wall the and that is the committee may be up against.
The Joint Chair (Senator Woo): Are there any comments? The recommendation is to accept the reply as satisfactory. Do we have any dissent?
Mr. Garon: I have several comments about this one.
First, the department says that no one raised any concerns about the matter, and, yet, here it is before the committee. Parliamentarians are examining the issue, so the department’s claim is contradictory.
Second, we’re being told that the trace amounts of hydrocarbons in question are not being measured. What is the point of the regulation, then?
Third, I’m having some trouble accepting the department’s explanation. The government appears to be very reluctant to provide any clarification, saying the regulation affects a very small number of stakeholders and that they understand what’s meant because it’s a term of art.
Above all, this is not a self-regulating market. It is federally regulated. On top of that, this is a public interest regulation. People outside the industry who want to know exactly what is being referred to have a right to know. If it’s not clearly stated, we should ask the department to amend the regulations or clarify them. I have trouble accepting that the status quo is the solution.
Mr. Zuberi: Thanks for all the work you are doing. In terms of the position of the Liberal team here, when it comes to the ministry’s position, we prefer that we follow what the departments are saying when it comes to their responses and take that into full consideration.
Senator Dalphond: I understand that, according to the regulations, natural gas has to be composed of at least 85% of a particular gas, and that’s what’s measured. Other elements in much smaller quantities can make up the remaining 15%, or they may account for nothing if the makeup is 100% of the main gas. Under the circumstances, I wonder whether it’s an unreasonable regulatory burden to have to define what makes up the rest, because stakeholders would have to measure elements they aren’t currently measuring. That would mean additional costs for operators, whereas those purchasing the products ensure that the content meets their needs.
The Joint Chair (Senator Woo): Yes, that is the essence of the department’s response. The option is for them to simply remove that reference to “minor,” and they have chosen not to do it. I think that is our only course of action if we choose to not accept their reply as satisfactory.
Mr. Noormohamed: I have a question for Mr. Abel. For clarity, while there is this perceived ambiguity, as far as you are concerned and as far as the response from affected stakeholders goes, this is not a problem for folks, and people are able to operate and do what they need to do without any real concern or without any frustration with the way the regulation is written as stands. Is that correct? This is more of a technical/bureaucratic exercise that we are debating rather than something actually affecting the sector, right?
Mr. Abel: From the information the department provided, it does not appear the regulated stakeholders have raised any concerns, and it seems the department undertook consultation in response to the committee’s inquiries and confirmed that with industry organizations and provincial regulators in Alberta and British Columbia.
Senator Dean: Very briefly, it strikes me that this has been looked at exhaustively. I tend to use the screen that I would normally apply to regulations, in terms of risk of harms balanced with efficiency and utility. There appear to be no harms associated with continuing with this language. I’m satisfied with the explanations provided by officials and would be content to accept that explanation and move on. Thank you.
Mr. Zuberi: As a general thought, I would like to put forth the idea that before we start chastising the ministry or departments, we take the time, as we should, to hear what they have to say at the department and bring the minister here before we come out with statements that we are chastising this or that department. It doesn’t seem fair, and in order to do the work we want to do — which is to improve the system — we should hear a fulsome reply from those departments and then make a conclusion, as opposed to making a conclusion in advance and seeking a reply afterward.
The Joint Chair (Senator Woo): Thank you for your input. We have had an exchange with the department, and the recommendation from counsel is to accept the reply as satisfactory.
Mr. Garon: Just to be clear, this isn’t about a witch hunt. We got a response, and it’s obvious that little harm is being done. Making the regulations more complex and adding requirements would increase the regulatory burden. It’s important for the industry to be able to operate under a clear regulatory framework. If I understand correctly, the current ambiguity gives the regulatory authority some interpretation leeway.
We could just follow up with the department to ask whether it’s appropriate to specify the amount or remove the term. That would provide the industry with clarity from a regulatory and investment standpoint.
The Joint Chair (Senator Woo): We’ve had that correspondence. Mr. Abel will correct me if I’m wrong, but they are refusing to quantify what they mean by “minimal amounts.” Our recommendation is to remove the provision altogether, which essentially restores the status quo. It doesn’t change anything.
The way I see it, we have two options. We accept the reply as satisfactory and move on, or we try again to say, “While we’re not asking you to quantify, we are suggesting that you remove it altogether. If this has no meaning whatsoever, why do you have it in there?” That’s the only other thing we can do, but we tried that before.
Let me see if we can get a consensus regarding the default recommendation, which is to accept and move on, unless Mr. Garon or somebody else wants to push for one more round of trying to get them to remove the provision altogether. Are you okay with that, Mr. Garon?
Mr. Garon: If I’m the only holdout, I can go along with the rest of the committee, but I do think it would be worthwhile to ask for the clarification once again. It wouldn’t be that much trouble for the department.
The Joint Chair (Senator Woo): Are there any other comments?
Mr. Abel, to clarify, when we say “reply satisfactory,” does that mean we close the file, or do we write a letter saying the file is closed?
Mr. Abel: Our normal practice is to write a perfunctory letter to the department to say that the committee considered the issue once again and decided to close the file.
I would remind members, in case it is relevant, that closing and opening files is an administrative process within the secretariat. All regulations are permanently referred to the committee, and they are always open to be reconsidered or for files to be reopened later.
The Joint Chair (Senator Woo): I propose that we close the file as you have suggested and we leave the option of coming back to it in the future if need be.
Let’s move on to item 3, which is in two parts: We will have an open discussion, and then we have an in camera discussion. We will start with the open discussion, and Mr. Abel will lead us on it.
SOR/2017-166 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS, 2017
Mr. Abel: This file deals with the regulations amending the Patented Medicines (Notice of Compliance) Regulations. Under the Food and Drugs Act, a drug manufacturer must apply for a notice of compliance to market and sell a drug in Canada. Part of that approval process involves comparisons to existing patents that relate to other drugs. Therefore, the regulations provide for a patent registry to be maintained by the minister. The minister is required to add patents to the register so long as the drugs meet the criteria set out in the regulations. While I note the registry also contains certificates of supplementary protection — and this is mentioned in some of the materials before members today — for brevity, I will simply refer to patents.
This file was before the committee twice in the spring of 2019. On the second occasion, the committee invited departmental witnesses to appear, although this largely related to issues on another file. On this file, the committee recommended that its counsel meet with departmental officials to try to advance the two outstanding concerns.
I turn to item 1 discussed in the analysis portion of the note prepared for members. This relates to subsection 3(2.3) of the regulations that empowers the minister, at their discretion, to conduct a review of the patent register. In doing so, the minister must delete any patent that they determine does not meet the requirements for inclusion. This may be done, for instance, after a court decision alters the interpretation of the criteria for patents to be on the register. These regulations are subject to an extraordinary degree of litigation. As such, court decisions that alter the interpretation of the regulations, as well as regulatory amendments responding to those court decisions, are relatively frequent. The regulatory impact analysis statement, or RIAS, accompanying this instrument states that when the minister intends to remove a patent from the register, the owner of the patent will receive a notice of that intention and the opportunity to make representations to the minister.
The committee’s long-standing view is that procedural rights should be guaranteed in legislation whenever it is possible to do so, unless a compelling reason to the contrary is given. Doing so ensures that persons in similar circumstances would not be at risk of arbitrary treatment and that no person need suffer the time and expense of judicial proceedings in order to determine their precise rights and obligations.
At the committee’s meeting in April 2019, it considered that the procedural rights described in the RIAS should be set out in the regulations.
At the committee’s meeting of June 6, 2019, witnesses from the Department of Innovation, Science and Economic Development reiterated the department’s previous position that it sees no need to enshrine in the regulations the same procedural rights described in the RIAS.
It was noted that the drug manufacturers governed by these provisions are frequent litigants who have not raised any complaints concerning a lack of procedural rights in the regulations. It was confirmed that the department’s administrative policy is always to provide these rights. However, the witnesses could not identify any negative consequence that would flow from placing these procedural rights in the regulations. The committee therefore directed counsel to discuss this matter in a meeting with departmental officials during the summer of 2019.
That meeting was held on July 30, at which time the department provided further reasons for its preference not to amend subsection 3(2.3). Some of those reasons were included in confidential written comments provided after the meeting on October 31, while the rest can be summarized by counsel. However, this information was provided on the agreement by committee counsel that its privileged and confidential nature would be respected if at all possible. Thus, I would recommend that the committee move to in camera proceedings before I continue.
The Joint Chair (Senator Woo): If members agree, we will now suspend to go in camera.
(The committee continued in camera.)
(The committee resumed in public.)
The Joint Chair (Senator Woo): We are resuming our discussion on SOR/2017-166. We have been asked to make a decision on the recommendation from legal counsel that we consider the response from the department satisfactory.
Let me see if there are any dissenting voices, in addition to what we’ve heard so far. Senator Dalphond, would you be willing to go with the group’s view on consensus, or do you feel strongly that we should return to the department?
Senator Dalphond: No, I can go with the consensus.
The Joint Chair (Senator Woo): It would be best if we did this by consensus rather than through a vote. Seeing that there is no objection to the recommendation by legal counsel, we will consider the response satisfactory.
Mr. Abel: Mr. Chair, there is a second matter to discuss on this file.
I will now turn to the second issue, marked as item 2 in the note prepared for members. It relates to the use of the terms “without delay” and “as soon as feasible” in several provisions in the regulations. In general, the committee takes a strict approach to the use of such terms. In its Report No. 89, the committee noted that these terms are vague and subjective, and typically add little or nothing to a legislative requirement. However, the report allowed that, in some cases, the use of a qualifier such as these may be unavoidable if the circumstances can justify its necessity.
In previous meetings concerning this file, members expressed some skepticism that the terms “without delay” and “as soon as feasible” provide sufficient clarity in these regulations. The committee, therefore, wished to know whether it would be practical to set out precise time frames in some or all cases.
At the committee’s meeting on June 6, 2019, departmental witnesses acknowledged that these subjective qualifiers should only be used where unavoidable and where circumstances justify the necessity. Mr. Mark Schaan, Director General of the Marketplace Framework Policy Branch at Innovation, Science and Economic Development Canada, stated:
. . . Timing is a contentious issue under the regulations and, given that the circumstances of each case are different, it would be impossible to set out a single period described in a fixed number of units of time for all cases.
Members refrained from arriving at a conclusion at this meeting, and this issue, therefore, remains to be considered once more.
As an aside, the use of “as soon as feasible” may be acceptable for special reasons. In one case, subsection 6.1(2) directs a judge of the Federal Court to conduct a case-management conference “as soon as feasible” after a certain step in the proceedings is reached. Presumably, judges of the court should be left to determine the best time to schedule conferences as part of their own proceedings.
That said, the rest of the provisions deal with information that is to be provided by one drug manufacturer to another or to the minister in proceedings before the minister or in proceedings before the Federal Court. For example, subsection 7(7) provides, in essence, that after a drug manufacturer has filed an application or an allegation, that manufacturer must “on request of the Minister, provide to the Minister without delay any information or document that the Minister requires” to make any determination relating to that application or allegation.
The question for the committee is whether members are persuaded by the department’s assertion that it would be impossible to set out specific time frames in provisions such as this. On one hand, I might generally express some skepticism that it could not be possible in most proceedings to set out a deadline of 30, 60 or 90 days, or some other appropriate length, in a given provision. On the other hand, perhaps the nature of some of the information that is requested or must be provided in these proceedings is such that it may not exist prior to the request, and it may be complicated, lengthy or difficult to produce. As such, it truly would be impossible to set precise deadlines. There is a real possibility of this being the case when dealing with patents and scientific reports relating to medical drugs.
Taking this into account, it would be open to the committee to accept the assertion made by departmental witnesses before the committee in 2019 that it would be impossible to set out specific deadlines in these provisions. The question for members is whether they are satisfied.
The Joint Chair (Senator Woo): Thank you, Mr. Abel.
Those of us who were on the committee in June 2019 considered this issue and failed to come to a conclusion. We’re being asked the same question again: Do we accept that the term “as soon as feasible” cannot be defined with any great precision? I think that’s what it boils down to. Legal counsel is advising that we accept the explanation. Do we have any dissenting voices?
The Joint Chair (Mr. Richards): I still struggle with this. We should endeavour to not accept the idea that something can’t be defined like that. I really think we should push back further yet.
The Joint Chair (Senator Woo): Do you mean we should ask them to spell out what they mean by “as soon as feasible”?
The Joint Chair (Mr. Richards): Yes.
The Joint Chair (Senator Woo): Are there any other comments?
Mr. Gaheer: I think I tend to agree with the department, and I defer to the department on this matter. Having a legal background, there are many statutes and regulations in which it’s very hard to define a clear timeline and where you have to use language such as the language that’s been used here. Every case can be so different with the number of factors and parties involved.
I defer to the department here.
Mr. Warkentin: I tend to agree with Mr. Richards.
What I have found in all of my time in office is that if there are no parameters put forward, they’re never met. If we don’t put a specification or an expectation of timeline, there will be no push by the department to get these time frames met. As soon as possible, unfortunately, is not a thing. There is no requirement. The frustration on this committee exemplifies the frustration of inertia. We should push back. We should start to establish measurement of time. I think that’s what our constituents would expect. That’s what would serve Canadians better. We know there’s always the ability for departments to ask for extensions and all the rest of the things, but if we don’t establish at least a time frame, we know these things just drag on forever and effectively inertia takes over.
Mr. Zuberi: I understand and appreciate that we have the desire to define time frames concretely. That being said, I have a law background, and the terms “without delay” and “as soon as feasible” actually do have meaning in law. There’s a reasonableness in terms of what these mean with respect to the situation in question. They are defined in terms of an effort to produce or to be produced by the one being asked the question.
In this case, the term “without delay” has an obvious meaning, and the term “as soon as feasible” also has an obvious meaning. If officials or whomever is being asked to fulfill that delay go beyond what is as soon as feasible and without delay, to the reasonable person, then that becomes an issue. It is defined. There is a concept being put forth that is clear to the individual who applies their mind to this question. Therefore, it’s something that we should continue with.
Mr. Garon: I’m wondering about something, and committee counsel may know the answer.
Would it be appropriate to set out clearer time frames while giving the department the ability to allow exceptions when they are warranted and when the information doesn’t exist? Wouldn’t that clarify the regulations and give industry the flexibility it needs?
The Joint Chair (Senator Woo): Mr. Abel, can we give them a time frame but allow for some flexibility in that time frame?
Mr. Abel: It’s certainly a suggestion that could be put to the department, and the committee would have to see how the department responds to the feasibility or practicality of that.
Senator Dalphond: If I read the report properly, these expressions also apply to the Federal Court. Are you proposing the Federal Court apply a deadline? If so, I would have reservations about that.
I leave it to the court to manage its caseload. If we’re to make an exception, the point is that in law, they have other deadlines and if they can wait until the last day of the deadline, even if they’re ready a week before, they will. Using the language “as early as possible” or “as soon as possible” is meaningful in the legal context, as was said by Mr. Zuberi. I agree. That’s an obligation. You have to do some dispatch. You have to do it as soon as you can. There are advantages, sometimes, not to have a delay that is going to be exhausted to the last day. For me, I’ll live with the explanations.
The Joint Chair (Senator Woo): I’m going to circle back to Mr. Richards and Mr. Warkentin to see if they continue with their objections or if we have some consensus here.
The Joint Chair (Mr. Richards): I do continue to have objections. There have been suggestions made that terms like “without delay” and “as soon as feasible” have obvious meanings. I certainly don’t think they’re that obvious. I tend to agree with the comment Mr. Warkentin made that if you don’t put a deadline to something, the deadline is never. That concerns me, and I can’t agree. I think we must push back and insist there be some kind of deadline that is meaningful and has some definition.
The Joint Chair (Senator Woo): We don’t have consensus on this issue, so I’m going to ask Mr. Abel to suggest a way in which we could respond that corresponds to the sentiments of our colleagues. Mr. Abel, presumably we will say the same thing to them, spell out what we mean by “as soon as feasible.” Is that what the letter would say?
Mr. Abel: Yes, I can ask for more clarification on precisely how the department interprets or applies those wordings. I can also ask for possible solutions, as was suggested by members, to see if that returns a positive response from the department.
The Joint Chair (Senator Woo): Thank you for that. Let’s move on to the next item. We’ll give you a break now and ask Mr. Hilton to lead us on item 4.
SOR/2015-152 — REGULATIONS AMENDING THE FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (TUNISIA AND EGYPT) REGULATIONS
SOR/2016-41 — REGULATIONS AMENDING THE FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (TUNISIA AND EGYPT) REGULATIONS
(For text of documents, see Appendix C, p. 4C:1.)
Geoffrey Hilton, Counsel to the Committee: These amending regulations remove individuals from the regulations’ politically exposed foreign persons list, but the recommendation portion — that is, the order-in-council preceding the text of the amending regulations — only refers to adding people to and maintaining those already on that list. The committee requested that in future amending regulations that delist people, Global Affairs include a statement to that effect, especially since it had already done so in the past. Global Affairs, though, thought the committee was asking them to provide specific explanations for each person delisted, which wasn’t the case. After some back and forth, Global Affairs now seems to understand the nature of the committee’s concerns and has stated that it will endeavour to reference delisting in the future where appropriate, which it did in a subsequent 2019 amending regulation.
If members are satisfied, these files may be closed.
The Joint Chair (Senator Woo): It seems fairly straightforward. I think we’re all in agreement. Let’s move to the next one.
SOR/2017-217 — REGULATIONS AMENDING THE REGULATIONS DESIGNATING REGULATORY PROVISIONS FOR PURPOSES OF ENFORCEMENT (CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999)
(For text of documents, see Appendix D, p. 4D:1.)
Mr. Hilton: In this file, there was some disagreement with Environment and Climate Change Canada as to when this amending regulation came into force. A summary of the department’s and committee’s positions can be found before you in the materials. In brief, the department was of the view that the amending regulations came into force on April 16, 2018, while the committee was of the view that they came into force on January 1, 2019.
This created a period of ambiguity between the two dates. After the committee considered this file in February 2019, members directed counsel to confirm with the department whether there were any instances of enforcement in relation to this amending regulation during that period of ambiguity and that if the department provided assurances that there were not, the issue would be moot. The department confirmed in a May 2019 letter that no enforcement of the regulations occurred during the period of ambiguity and that efforts would be made to draft coming-into-force provisions more clearly in the future.
Therefore, if members are satisfied with the department’s response, this file may be closed.
The Joint Chair (Senator Woo): I think we are. Let’s move on to Action Promised.
SOR/2016-31 — REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS
(For text of documents, see Appendix E, p. 4E:1.)
Mr. Hilton: This is the first time the committee has examined this issue. However, I have an update for committee members that is different from the information in the note.
The Department of Veterans Affairs recently made amendments that will likely remedy the problems that were noted. The amendments are registered under SOR/2022-69 but have not yet been fully reviewed. Once they have been, though, the matter will once again be brought to the committee’s attention.
The Joint Chair (Senator Woo): We’ll put that on hold for now and move on to the next item.
SI/2019-81 — ORDER AMENDING THE LIST OF WILDLIFE SPECIES AT RISK (DECISIONS NOT TO ADD CERTAIN SPECIES) ORDER (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix F, p. 4F:1.)
Tanya Dupuis, Senior Counsel of the Committee: This is the first time that the statutory instrument at item 7 has been before the committee.
Further to comments made by the committee, the Department of the Environment made the promised amendments to SI/2017-24 through SI/2019-81. The department amended the text of the French version of the order, replacing the word “tonne” with the abbreviation “t.” If members are satisfied, both of those files can be closed.
The Joint Chair (Senator Woo): Let’s return to Mr. Abel for item 8.
SOR/2009-197 — VOLATILE ORGANIC COMPOUND (VOC) CONCENTRATION LIMITS FOR AUTOMOTIVE REFINISHING PRODUCTS REGULATIONS
(For text of documents, see Appendix G, p. 4G:1.)
Mr. Abel: Drafting concerns regarding two provisions enacted by this instrument have been addressed by amendments made by SOR/2018-11, which will be submitted to the committee in the future. Thus this file can be closed.
The Joint Chair (Senator Woo): Could you address item 9 as well?
SOR/2009-264 — VOLATILE ORGANIC COMPOUND (VOC) CONCENTRATION LIMITS FOR ARCHITECTURAL COATINGS REGULATIONS
SOR/2009-264 — VOLATILE ORGANIC COMPOUND (VOC) CONCENTRATION LIMITS FOR ARCHITECTURAL COATINGS REGULATIONS
(For text of documents, see Appendix H, p. 4H:1.)
Mr. Abel: SOR/2018-11, the same instrument mentioned in the last item, also resolved several drafting concerns on this instrument. This file can also be closed.
The Joint Chair (Senator Woo): Let’s try your line again, Mr. Hilton.
SOR/2019-245 — REGULATIONS AMENDING THE METAL AND DIAMOND MINING EFFLUENT REGULATIONS
(For text of documents, see Appendix I, p. 4I:1.)
Mr. Hilton: This is the first time that the regulations at item 10 have been before the committee.
The typographical errors found in the French version of the regulations have been corrected using the authority under paragraph 27(c) of the Legislation Revision and Consolidation Act. Basically, the provision gives the Minister of Justice the authority to correct grammatical and typographical errors administratively instead of through the usual regulatory process.
Accordingly, the file may be closed.
SOR/2020-87 — REGULATIONS AMENDING THE APPLICATION OF PROVINCIAL LAWS REGULATIONS
SOR/2018-286 — REGULATIONS AMENDING THE APPLICATION OF PROVINCIAL LAWS REGULATIONS AND THE CONTRAVENTIONS REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix J, p. 4J:1.)
Mr. Hilton: This is the first time that the regulations at item 11 have been before the committee.
These amending regulations correct three incorrect or outdated references in the Application of Provincial Laws Regulations that were initially identified when SOR/2018-286 was being reviewed.
This is also the first time that the 2018 file has been before the committee. The committee members may be interested to know that their amendments led to amendments and, as a result, the committee was able to close three of its files from 2016 and 2017. Now that the 2020 amendments remedy the issues stemming from the 2018 amendments, both files can be closed.
The Joint Chair (Senator Woo): Thank you. It’s nice to resolve issues.
We now move to the section on Statutory Instruments Without Comment. I’m not sure we need any discussion.
SI/2019-56 — ORDER DESIGNATING THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS THE MINISTER FOR THE PURPOSES OF THAT ACT
SI/2019-58 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SI/2019-64 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH DIVISION 10 OF PART 4 OF THAT ACT COMES INTO FORCE
SI/2019-67 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH PARTS 1 AND 2 OF THAT ACT COME INTO FORCE
SI/2019-70 — ORDER FIXING AUGUST 1, 2019 AS THE DAY ON WHICH PART 3 OF THAT ACT COMES INTO FORCE
SI/2019-86 — ORDER FIXING AUGUST 28, 2019 AS THE DAY ON WHICH THAT ACT COMES INTO FORCE
SI/2019-87 — ORDER FIXING AUGUST 29, 2019 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE
SOR/2018-51 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS
SOR/2019-88 — REGULATIONS REPEALING THE CHLOR-ALKALI MERCURY RELEASE REGULATIONS
SOR/2019-89 — REGULATIONS AMENDING THE REGULATIONS DESIGNATING REGULATORY PROVISIONS FOR PURPOSES OF ENFORCEMENT (CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999)
SOR/2019-91 — REGULATIONS AMENDING THE CONTAMINATED FUEL REGULATIONS
SOR/2019-140 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (TSEYCUM)
SOR/2019-141 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (TSEYCUM)
SOR/2019-142 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (ENOCH CREE NATION)
SOR/2019-182 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2019-203 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2019-204 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (BEECHER BAY)
SOR/2019-205 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (BEECHER BAY)
SOR/2019-270 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (BERENS RIVER)
SOR/2019-271 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (BERENS RIVER)
Ms. Dupuis: These items have been reviewed by committee counsel and have been found to comply with all the joint committee’s criteria. It’s our recommendation that these files can be closed.
The Joint Chair (Senator Woo): I want to give members an opportunity to express any concerns or reservations. If not, so closed.
Having come to the end of our agenda, thank you everyone.
Mr. Garon: I have a small question. When we met last, two weeks ago, I don’t think we finished going through all the agenda items. I was wondering whether we’d be coming back to them at a later time.
Ms. Dupuis: We went over them today, Mr. Garon.
Mr. Garon: Forgive me. I was confused. We got through more than I thought. That’s great news. Thank you.
The Joint Chair (Senator Woo): Thank you, Mr. Garon. And thank you to our legal counsel, Mr. Hilton, Mr. Abel and Ms. Dupuis.
(The committee adjourned.)