REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Wednesday, April 21, 2021

The Standing Joint Committee for the Scrutiny of Regulations met with videoconference this day at 12:30 p.m. [ET] for the review of Statutory Instruments.

Senator Yuen Pau Woo (Joint Chair) in the chair.

[English]

The Joint Chair (Senator Woo): Good afternoon, colleagues. I am Senator Yuen Pau Woo and it’s my pleasure to be your joint chair, along with MP Dean Allison. Mr. Allison won’t join us until around 1 p.m., so I will chair the first part of the meeting, if not the entire meeting, depending upon whether he would like to take over.

It’s nice to see some familiar faces on this committee — welcome back — as well as some new faces. I was touched to hear the enthusiasm about this committee from a number of you. Mr. Simms described it as a roller coaster. The thing about a roller coaster is that you aren’t sure if you want to be on it when you are upside-down, but at the end of it, you want to get back on again. So buckle up, colleagues. We’re in for a terrific ride.

Before we begin, I would like to say a few words to help us prepare and to conduct this meeting in an efficient and productive manner.

Parliamentarians are asked to have their microphones muted at all times, unless you are recognized by name by the chair, and will be responsible for turning their microphones on and off during the meeting. You should be familiar with this by now. Before speaking, please wait until you are recognized by name. Once you have been recognized, please pause for a few seconds to let the audio signal catch up to you.

When speaking, please speak slowly and clearly using the microphone included in your headphones. You may, of course, speak in either language, but please avoid switching from one language to the other in the same intervention.

Should members want to request the floor, please use the raise-hand feature. Barring technical issues, please avoid using the chat. It should only be used to add your name to the speakers’ list or to signal technical problems.

Should you have any technical challenges, particularly in relation to interpretation, please signal this to me and to the technical team, and we will work to resolve the issue. If you experience other technical challenges, please contact the committee clerks — one or both — with the technical assistance number provided.

I hope we don’t have technical problems, but if we do, we may have to suspend to ensure all members are able to participate fully.

Colleagues, the use of online platforms does not guarantee speech privacy or that eavesdropping won’t be conducted. As such, while conducting committee meetings, all of us should be aware of such limitations and restrict the possible disclosure of sensitive, private or privileged parliamentary information. Needless to say, you should be conducting this meeting in a private area and be mindful of your surroundings.

Finally, I would like to remind all participants that Zoom screens should not be copied, recorded or photographed.

If there are no questions, we are ready to begin.

You have been sent the agenda for today as well as the full package of materials. Those of you on this committee previously will recall that it is very much led by our general counsel who will take us through the files that they feel are the most pressing and who will be asking us, in some cases, for decisions. Usually there is a set of decisions that we can consider. Sometimes they will be providing the information simply for us to reflect upon.

I want to recognize our staff, not just because they are supporting us today but, as you know, this is a committee that rests with prorogations and between Parliaments but that work does not stop. That work is led by our team in the legal department of the Library of Parliament. They have been working for all the months that we have not been meeting, and they have been very anxious for us to meet in order for us to act on some of the recommendations they have for us today.

With that, I want to introduce Tanya Dupuis, General Counsel to the Committee, and invite her to take us through the agenda.

SOR/2018-71 — REGULATIONS AMENDING THE INSURABLE EARNINGS AND COLLECTION OF PREMIUMS REGULATIONS

(For text of documents, see Appendix A, p. 2A:1.)

Tanya Dupuis, General Counsel to the Committee: The first item on today’s agenda is letters to and from ministers, and the file will be presented by the committee’s counsel, Mr. Shawn Abel.

Shawn Abel, Counsel to the Committee: Thank you. The first item on the agenda today concerns SOR/2018-71.

Two concerns were raised in relation to this instrument. First, this instrument was not transmitted for registration within seven days after its making, which is required by the Statutory Instruments Act. This failure arose from the fact that instrument was made by the Minister of National Revenue but was approved six weeks later by the Governor-in-Council. This approval requirement is an extra step imposed by the enabling act. While the transmission requirement applies from the date of making, the instrument was not formally enacted and ready for transmission or publication until it was approved. The Canada Revenue Agency assures the committee that the transmission requirement will be met in the future and intends to seek guidance from Treasury Board as to how to ensure that happens. This commitment could be considered satisfactory. Counsel will, of course, take note of the transmission date for future amendments to these regulations.

The second issue concerns the legal obligation to pay Employment Insurance premiums on certain top-up payments that employers make to their employees. Those premiums have been required by the regulations until this instrument repealed that obligation. However, the regulatory impact analysis statement accompanying these amendments suggested that for a five-year period from 2013 to 2018, these premiums were not collected. Furthermore, administrative guidance provided to the public by the government stated that the premiums were not owed.

When this file was last before the committee in November 2018, members reviewed a letter from the agency explaining that the obligation to collect premiums on these top ups had not been applied because it had not been intended to be in the regulations in the first place and the corrective change had expected to be made in the near term. However, evidently, that corrective change took five years to enact. Members directed the joint chairs to write to the minister in order to convey the committee’s view that, as a general principle, it is the law that must be given effect, not an underlying policy intent that may be in conflict, nor can the law be ignored because a change is expected to take place in the future. The minister’s assurance was sought that this basic principle of the rule of law is understood and will be observed in administering the regulations. In addition, the committee recommended that the failure to collect legally owed premiums over a period of five years ought to be validated by Parliament in order to maintain respect for the rule of law. This could be done by way of a bill providing retroactive validation.

The minister’s reply of March 7, 2019, makes several points. For reference, that letter is located on page 18 in the English version of the materials and page 14 in the French version.

First, the minister suggests, based on information the agency provided to her, that the guidance provided to the public only misrepresented the state of the law for four months in early 2018. The minister’s letter asserts that before January 2018, the public guidance properly stated the law. Now, this is not entirely correct. The agency’s 2017 guidance document also misrepresented the law. Those guidance documents can be revised at any time during the year, so it’s unknown to us for how many months in 2017 that incorrect information was also provided. The minister’s letter does agree that the public guidance should not have misrepresented the legal obligation to pay top-up premiums. This is framed, though, as a lack of clarity rather than a recognition that the agency appeared to be deliberately misstating the law in line with its own policy preferences.

As to the committee’s recommendation to retroactively validate the lack of collection of these premiums, the minister’s letter indicates that the agency has consulted with Employment and Social Development Canada. This consultation is for the following purpose:

. . . to determine if any taxpayers were negatively impacted by the fact that the Agency’s guidance . . . did not reflect . . . the regulations in place at the time.

If the answer to that question is yes, then options to address this matter are said to be open for examination.

The statement from the minister either misses or misstates the point of the committee’s recommendation in several ways. First, of course, the failure to collect premiums could not negatively impact taxpayers, since it would be to their benefit. The loss is only to the government. Second, the law was evidently not enforced for a period of five years, not merely during the time that the agency’s public guidance misrepresented the law. Thus, the misrepresentation is really irrelevant to the question of whether validation is necessary. Third, even if it were relevant, the minister’s understanding of the time period over which the public guidance was wrong falls short, as we have seen, of the actual time period.

In summary, I would suggest that the minister’s reply does not adequately address the committee’s concerns. With respect to the failure to collect top-up premiums over a five-year period, if members agree, another letter to the minister could be drafted for the joint chairs, explaining why the minister’s reply insufficiently addresses the committee’s concerns and restating that there is still a need for retroactive validation by Parliament. Would the committee like to take that approach?

The Joint Chair (Senator Woo): Thank you, counsel. We have the issues before us. They are summarized in the document, the proposal is to have a follow-up letter to explain why we feel the response is inadequate. This goes back, by the way, to 2018. I believe that was the last correspondence. I am looking to see if there are any comments.

[Translation]

Mr. El-Khoury: May we know whether the Department of Revenue has put in place any retroactive corrective measures to address the situation and ensure that the rule of law will be respected at all times? Has there been any communication with Treasury Board as to whether a bill would be considered a valid solution?

[English]

Mr. Abel: The only information available to us after the chairs wrote to the minister in 2018 is what has come back to us in that letter from the minister. We don’t know from the content of that letter what consultations the minister may have undertaken, if those would have gone wider than her department or if they would have included Treasury Board. We simply don’t know.

[Translation]

Mr. El-Khoury: No, I think that is up to the committee. The committee can ask the minister to send another explanatory letter about the implementation of a retroactive correction.

[English]

Mr. Abel: Indeed, we could take that approach. I think that might be the step that is warranted at this time, especially given the delays in parliamentary sittings and work that has happened over the past couple of years with the pandemic. It might be best to put this back to the minister and inform them that the committee has considered the minister’s letter but does not find it sufficient and would like to see retroactive validation.

The Joint Chair (Senator Woo): Can you clarify, counsel, how this approach differs from the one you originally proposed to us?

Mr. Abel: It is largely the same. That is the same approach that the committee and the joint chairs recommended in their letter the last time.

The Joint Chair (Senator Woo): Entirely consistent with our previous actions?

Mr. Abel: That’s correct.

The Joint Chair (Senator Woo): Unless I see further comments or questions — and I want to thank Mr. El-Khoury for helping clarify some issues — I would like to recommend that we proceed with the recommendation with the subtlety that Mr. El-Khoury has offered.

Mr. Calkins: What was the timeline in the previous exchange of letters? Should we consider asking for or expecting a quicker response? This issue seems to be dragging on for a significant amount of time and I’m not sure that we should be as patient, given the amount of time that’s already elapsed and this issue has remained unresolved.

The Joint Chair (Senator Woo): Counsel, would you address that? Part of the problem is surely that we have not met in a very long time and have not had the opportunity to press the minister, but I will let counsel elaborate.

Mr. Abel: I would make the same point as the chair. The joint chairs wrote to the minister in November 2018 and the reply was received in April 2019. We haven’t had a chance to move developments along since then because this file has not been back to the committee since then, and a big part of that is the interruption due to the pandemic. There has been a significant delay. What is being recommended by the committee here is parliamentary validation, which, as you know, does not move as swiftly as a regulatory amendment would.

The Joint Chair (Senator Woo): Is that acceptable, Mr. Calkins?

Mr. Calkins: Given the interruption was only for this committee and did not interrupt the business of government, but it did interrupt the business of Parliament, I can accept from March 13 of last year that being an acceptable excuse. However, a significant amount of time has lapsed prior to March 13, 2020, in which this has not been resolved. But given the fact that the Parliament of Canada and therefore this committee has not had the opportunity, I am willing to be a bit more patient. However, this needs to be dealt with, and the letter to the minister needs to expressly say that it needs to be dealt with in a timely fashion. That would be my preference.

The Joint Chair (Senator Woo): I think that’s very reasonable, particularly since we are reiterating points made by the previous committee, and there has been a considerable lapse of time. If there are no other comments or questions, I will seek a consensus that we move ahead in the way recommended with the nuance from Mr. El-Khoury and the stronger tone — if I can put it that way — suggested by Mr. Calkins.

As you know, colleagues, this is a committee that operates largely by consensus. Of course, I don’t want to suppress any dissent, and you just have to let me know and I will give you the floor. However, unless I see or hear disagreement, I’m going to suggest that we move forward on this item and ask our counsel to take us to the next item on the agenda.

SOR/97-6 — FEEDS REGULATIONS, 1983, AMENDMENT

(For text of documents, see Appendix B, p. 2B:1.)

Mr. Abel: Well over a decade ago, the committee concluded that several provisions in these regulations, which prohibit the release of novel feeds into the environment, were not authorized by the Feeds Act. The necessary authorization was added to the act in 2015. Since that time, the committee has been awaiting the re-enactment of these regulatory provisions under the proper authority that now exists.

Beginning in 2014, this re-enactment was intended by the Canadian Food Inspection Agency to be included in a larger modernization of the Feeds Regulations. That modernization package was expected to be prepublished in 2016. However, since that time, delays have accumulated time after time. The most recent reply from the agency dates from June 28, 2019. It indicated that prepublication was expected for winter 2020. That prepublication has not yet occurred, although the pandemic has likely contributed, to some extent, to the most recent delays. At this stage, if members agree, a follow-up letter could be drafted to the agency seeking a progress report.

The Joint Chair (Senator Woo): Thank you, counsel. I notice you categorized this item as “progress?”. Presumably you are asking us if we think there is sufficient progress, and if there isn’t, or if we are not sure, then we would ask them to give us an update. That’s essentially the recommendation.

I look to my colleagues on the committee to see if there are any comments. It would seem to me that the government is a few months late if we say winter is December 2020 until March 2021. We are in April; they are just past the deadline if that’s the right interpretation. So the question is whether we need to send a reminder at this time or if we’re willing to wait a bit longer.

[Translation]

Mr. El-Khoury: I think it would be helpful for committee members to know where we are with the publication, whether there have been any further delays or promises. I’m interested in knowing where we are, and the committee as a whole is as well, I think.

[English]

The Joint Chair (Senator Woo): I will let counsel elaborate, but I guess the answer is that we don’t know. That’s why we would write a letter to find out where they are at. They said they would give an update of the regulations in winter 2020, and we don’t know where it is.

I will ask Mr. Calkins to pose his question first, and then Mr. Abel can adress both inquiries.

Mr. Calkins: Thank you, Mr. Abel. My question, notwithstanding the procedural processes — what we’re normally looking at here is scrutiny of regulations — is that this largely seems to be an issue that could be resolved in cabinet. It doesn’t require anything from Parliament, other than going through the regular gazetting process. Do I have that right?

Mr. Abel: That’s correct. This is purely a set of regulatory amendments being considered here — basically a replacement of the ones that already existed. They simply need to be re-enacted.

Mr. Calkins: This was simply because the regulations that existed prior did not have the authority of the act. They now have the authority of the act. We have to go through the process as a matter of a technicality again.

My question is one beyond the scope of merely the technicality. If Canadian agricultural producers — or others in the feed production industry, et cetera — are continuing to use novel feeds without the appropriate statutory instruments in place with regard to the legal framework that we’re discussing, what exposure do we have on trade and non-tariff or tariff barriers that need to be hemmed in by getting the statutory instruments in place as quickly as possible? Is there any discussion about that? That would suggest to me a need for urgency if that was the case.

The Joint Chair (Senator Woo): Are you able to answer that question, Mr. Abel?

Mr. Abel: To a significant degree, that goes beyond my area of knowledge and beyond the committee’s inquiries, which are limited to the legal status of the regulations.

I would say that because these provisions, which are prohibitions on certain introduction of feeds, have been of questionable validity for such a long time, the possibility of enforcing them rests on shaky ground and has for a number of years — not so much permission for people in the agriculture industry to do things, but the ability of the government to enforce prohibitions against the introduction of certain feeds.

The Joint Chair (Senator Woo): Are you saying there are certain squatters’ rights that have been established by the extended use of these novel feeds, which is my non-legal way of describing it?

Mr. Abel: I have no way of knowing what the status of enforcement has been, over a number years, taken by the agency. But the legal consequences of taking certain actions that may have been prohibited where the validity is unsure are thorny and complicated, and they would best be sorted by the courts should such issues arise. However, I do not know if that is the case.

Mr. Calkins: Then, I would suggest that certain Canadian agricultural products that are in question for enforcement prohibitions could lead us to certain trade actions if something got into our food supply chain. CFIA needs these authorities in order to ensure the safety and security of our food and our export markets. I would ask that we proceed with urgency on this matter in our questioning of the government.

The Joint Chair (Senator Woo): Certainly, there’s no harm done in following up with the letter counsel has recommended. I’m looking around the room to see if there’s any opposition to that idea or if there are any other questions. Does anyone have a comment?

Mr. El-Khoury: Yes.

[Translation]

It would be helpful if the letter made clear what is preventing or has prevented publication, and where we are with that, with explanations, please.

[English]

The Joint Chair (Senator Woo): Thank you. Can you do that, Mr. Abel? I’m sure you can. The joint chairs will make sure that nuance is added to the letter. We will move on to the next item on the agenda.

SOR/2018-135 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

(For text of documents, see Appendix C, p. 2C:1.)

Geoffrey Hilton, Counsel to the Committee: This file can be found at page 37 in both the English and French versions of the materials. Global Affairs has explained that a clerical error was the reason behind a missed timeline requirement under the Special Economic Measures Act. These regulations were supposed to be tabled in both the House of Commons and the Senate within five sitting days after they were made.

While these regulations were made during a period of summer adjournment, they were still not immediately tabled upon the return of the houses. The regulations were eventually tabled, although only some five months later.

Nevertheless, if members are satisfied with Global Affairs acknowledging its error, this file can be closed and future orders will continue to be monitored to ensure Global Affairs respects its statutory obligations.

The Joint Chair (Senator Woo): Thank you, Mr. Hilton. Of course, the notice was eventually given, but it was late, and the explanation is that there was an internal mistake.

I’m not sure there’s much more we can do.

Mr. Calkins: Mr. Chair, I accept the fact that the government has recognized that it has made a clerical error, and I see no further action required.

The Joint Chair (Senator Woo): Thank you. Unless there are other comments, I think we will treat this as a satisfactory response.

SOR/2013-221 — ELECTRONIC COMMERCE PROTECTION REGULATIONS

(For text of documents, see Appendix D, p. 2D:1.)

Mr. Abel: These regulations set out rules for when and how electronic messages, such as emails, may be sent to individuals by commercial organizations, as well as other associations, clubs and the like.

Five concerns were raised by counsel with Innovation, Science and Economic Development Canada in relation to these regulations. In addition, an error in the Consolidated Index of Statutory Instruments was brought to the attention of the Privy Council. That was corrected. No further action is necessary.

Turning to the note on this file, I would like to take an unusual approach. It would be best to deal with point 5 on this file first, so I ask members to turn to point 5 in their notes, if they are following along, which deals with section 6 of the regulations. If you’re looking at the note, scroll down about five pages in the English or French versions, and you should find that section.

Under point 5, counsel questioned the validity of section 6 of the regulations. Section 6 is enacted pursuant to paragraph 10(8)(a) of the act, which deems consent to be given for the installation of certain computer programs on a person’s computer via electronic messages. I would draw your attention to pages 5 and 6 of the note, or pages 6 and 7 in the French version, which set out the relevant provisions.

Subsection 10(8) of the act provides a short, discrete list of programs, such as cookies for a web browser, HTML codes, or operating systems. At the end of this list, in subparagraph 10(8)(a)(vi), the act then authorizes making regulations that specify any other program for which consent is deemed to be given.

Section 6 of the regulations, however, does not list specific types of programs the way the act does. Instead, it provides several lengthy generalized descriptions of programs. These descriptions revolve around the purpose for which the program is installed, rather than its specific name or type.

For example, paragraph 6(a) permits the installation of a program installed by or on behalf of a telecommunications provider solely to protect the security of all or part of its network from a current and identifiable threat to the availability, reliability, efficiency or use of its network.

As you can see, this is quite a different description from a cookie or HTML code. Counsel questioned whether this strayed beyond the power to specify a program, which is a relatively narrow enabling authority. To specify something is to identify it precisely and with certainty. The department contends that section 6 is validly authorized and suggests that the descriptions set out in this provision specify “readily identifiable programs.” The department cites a need to remain technologically neutral so that these provisions will not be quickly rendered obsolete by changes in technology. The department also notes that the description set out in section 6 require that the described programs must be installed solely for their specified purpose, which I agree is a notable limitation.

While it is arguable whether the descriptions set out in section 6 are so general as to go beyond specifying programs, the department is correct that the factors describing those programs are objective in nature. It may well be that it is not possible to provide narrower descriptions and still craft an effective provision.

On balance, I would be inclined to recommend that this response be considered satisfactory. However, to some extent, this is a judgment call, and I am in members’ hands. Before moving on, it would be helpful to receive instruction from the committee on this point. Do members agree that the types of descriptions found in section 6 of the regulations amount to specifying computer programs for the purposes of the act?

The Joint Chair (Senator Woo): Thank you, counsel. So it’s about whether we consider this to be “specifying” or “respecting,” and whether the wording provided satisfies the “specifying” criteria.

Are there any comments?

[Translation]

Mr. El-Khoury: I think there is no problem since the corrections have been made. As for the deletion of paragraph 3(c)(iv), there have been technological advances and life has changed a lot. . . I insist on accepting this because they confirmed that there was a discrepancy between the French and English in a few sections. So, in general, I don’t see a problem with it.

[English]

Mr. Calkins: Thank you, Mr. Abel. The clarifications of what could constitute programs specified for subparagraph (vi) in 10(8) seem to me to be largely based on firmware. However, we’re not talking about the firmware on the organization’s or telecommunication provider’s network; we’re talking about the applications on an individual’s communication device. That’s my understanding of this.

Mr. Abel: That’s correct, yes.

Mr. Calkins: In order for that firmware or the updates that a telecommunications provider would have to put in its routers, switches and devices so it can provide wireless telecommunications, for example, they would need the corresponding software on the devices in order to take advantage of any of those firmware upgrades. That’s my limited knowledge of how these things work. I was a professor of information technology prior to becoming elected as a member of Parliament, but that’s a long time ago, and 15 years of technological advances have since happened.

But it seems to me that instead of looking for clarification in section 6(a), (b) and (c), what we really need is something to expand, for the purposes of security, matching firmware or telecommunications operating systems or firmware, we need to add something into the list under 10(8)(a). That would include software that would match any of the listings down in 10(a), (b) and (c).

That could be what subparagraph (vi) is trying to do, but I would leave it up to legal counsel’s discretion. I would appreciate their opinion on whether the correction needs to be made in section 6 or if it needs to be made in the aforementioned one by simply adding in “compatibility software for firmware telecommunication systems,” for example. That would give a more blanket protection or inclusion for these types of things.

Otherwise, when you start to put very specific things in there — like a cookie, HTML code, JAVA script and so on — technology advances so quickly that some of these things would be obsolete if we weren’t to do it with open-ended, inclusive-type wording.

I leave it to your discretion, but from my perspective, I’m satisfied that 10(8)(a)(vi), if it includes items (a), (b) and (c), is simply to provide efficiency so that a telecommunications provider can simply update individuals’ devices who are using that very same network to make sure the compatibility and security issues are in place. I have no reason to suspect any nefarious rationale other than that.

The Joint Chair (Senator Woo): Thank you, Mr. Calkins. It’s great to have some real expertise on this issue. We appreciate your explanation.

My understanding is that both you and Mr. El-Khoury accept the approach of trying to be technologically neutral, which is the language of the department. I’m not sure I fully understand the nuance you’re offering. I’m going to ask counsel if they have a view, and then Mr. El-Khoury will come back in.

Mr. Abel: My understanding is that members are generally satisfied that the list in the regulations does not stray beyond the enabling authority to specify programs.

However, I do agree that it would probably be preferable for the statutory provisions to be clarified or expanded in order to make it clear how far the regulations can go and that they can be adaptable to technological changes.

As we get to the other points, I’m going to suggest that a letter back to the department be drafted. We could include a section recommending that amendments to the act be considered by the department, and that in the future, a proposal to introduce a bill could be something the department might want to consider. If members would like, that could be included in the letter.

The Joint Chair (Senator Woo): Okay. Thank you.

Mr. El-Khoury: I do not have a problem as long as, in general, we agree in the letter that we would like more information to be included.

The Joint Chair (Senator Woo): Okay. Thank you.

Why don’t we circle back to this item? I think we’re very close to a path forward, but are there other items on this matter? When we talk about the actual response, we can clarify exactly what it is we will say. So, counsel, back to you.

Mr. Abel: That leaves points 1 to 4 to address. These are all discussed in detail in the note.

To begin with, an amendment is promised that would address item 1 regarding paragraph 2(a). I have to apologize now in advance to the interpreters; I’m going to deviate here from the prepared notes I sent to them.

Points 2 to 4 each relate to a relatively minor issue, but each issue is somewhat detailed in nature. I don’t want to belabour my explanations on this. Detailed explanations are set out in the note. I will just summarize these points very briefly, and I’m happy to field questions from members, if they have them.

Point 2 deals with an apparent redundancy between two provisions. The department’s argument that these provisions are distinct is not persuasive, and it remains that the redundant provisions should be removed. However, an alternative option could be suggested to the department that the provision be amended to state it is included only for greater certainty. The department’s communication indicates, I think, a strong reluctance to remove the provision in this case, so that may be an attractive alternative to suggest.

Point 3 deals with a duty on a person to “ensure” that a third party performs its required obligations. It’s unclear what it means to ensure that this be done, from the context of the regulations. What is the precise requirement? The department’s reply does not really answer the question. A further letter could put more questions to the department to try to advance this issue.

Point 4 deals with linguistic issues in two provisions. The department’s reply could be seen as satisfactory regarding unusual wording that was noted in the English version in one provision. On a second issue regarding inconsistent language between two provisions in the French version, the department denies there is a problem but also commits to reconsidering the issue whenever the regulations are next amended. Given that there is already an outstanding promised amendment that has not yet been made, a confirmation could be sought that this matter also be resolved at the same time. In essence, a firmer commitment could be sought.

That would cover all the issues in points 1 to 4. As a next step, a letter to the department could be drafted, pursuing items 2 to 4, which are somewhat unsatisfactory. This would be along the lines set out in detail in the note. The letter could also seek a date for the making of the already-promised amendments and, as was discussed by members earlier, it could also follow up on point 5 by suggesting that the department examine proposing amendments to the act.

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

It seems to me the main issue that requires some reflection is the question of the redundancy issue and whether we accept the explanation that there is no redundancy or if we take your suggestion, which is to say that the extra clause is for greater certainty.

Presumably, if they do not believe it’s redundant, then it’s not simply for greater certainty; it’s for something else. I don’t quite understand exactly what the difference of opinion is. Why would they accept the addition of “for greater certainty” if they do not agree in the first place that it’s not an item of greater certainty?

Mr. Abel: To some degree, that’s a philosophical question that the legislators often bump up against.

When there isn’t clear agreement on the legal status of a legislative provision, it is sometimes a useful technique, I would say, to use a clause such as “for greater certainty.” It allows something to exist while escaping necessarily greater consequences for the existence of that provision. It may be a compromise that is amenable to the department and to the Department of Justice, which would be advising them.

The Joint Chair (Senator Woo): Okay. Thank you for that.

Colleagues, we have some recommendations, including the discussion in item 5 concerning the issue of specificity of the technical requirements and so on. If there are no further comments, I suggest that we accept the recommendation of our counsel and proceed with the letter they have suggested.

Seeing no comments, we will proceed in that way.

SOR/2016-252 — REGULATIONS AMENDING THE PROHIBITION OF CERTAIN TOXIC SUBSTANCES REGULATIONS, 2012

(For text of documents, see Appendix E, p. 2E:1.)

Mr. Abel: This instrument corrected three drafting concerns raised by the committee in connection with SOR/2012-285. Upon review, counsel identified three new concerns, which were put to the department. Amendments are promised to address the first two concerns. These would clarify the meaning of one provision and remove obsolete references from another. One of these proposed amendments was prepublished in June 2019. It’s not yet known when either amendment will be finally enacted.

The third item raised a question concerning descriptions for molecular formulae in the schedules, which overlap in several cases. The department confirms this was intentional as, among other reasons, it reflects the way these same formulae are listed in the enabling act. Nothing material is affected by these overlapping descriptions, and this explanation could therefore be considered satisfactory.

If members are satisfied with that, counsel could draft another letter to the department that would seek an update on the amendments that were promised.

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

[Translation]

Mr. El-Khoury: I don’t have a problem with this, but are we going to send a letter so we know when the changes will be made? We have been waiting for over two years. There has been no response. In general, I can tell you that the suggestions are satisfactory.

[English]

The Joint Chair (Senator Woo): Thank you. I’m sure we can do that. Seeing no other comments, let’s proceed in the way suggested.

[Translation]

SOR/2018-275 — REGULATIONS AMENDING THE CANADA EDUCATION SAVINGS REGULATIONS

(For text of documents, see Appendix F, p. 2F:1.)

Geneviève Pilon, Counsel to the Committee: Item 6 can be found on page 149 of the PDF document in French, and on page 148 in English.

The Department of Employment and Social Development agreed to make the proposed changes for two of the issues raised and provided a response that could be considered satisfactory for the third issue raised. The changes were promised to address two drafting issues, which the department reconfirmed in its May 25, 2020, letter.

For the third point raised, the “C” variable is given two different definitions only a few sections apart. However, the department does not intend to replace the “C” variable, since according to the department:

It is standard practice to reuse algebraic variables in formulas, as long as the same variable is not given two definitions in a single formula.

The department cited the Income Tax Act as an example. In that act, the variable “A” is defined differently 10 times between sections 2 and 13. In this regulation, the variable “C” is defined in all sections where it is used. However, it is defined the same way three out of four times when it is used. It appears that another variable could be used for the fourth occurrence. Therefore, the use of the “C” variable appears to be consistent with the practice outlined by the department. Therefore, it is up to the members to decide whether this response could be considered satisfactory.

[English]

The Joint Chair (Senator Woo): Thank you; it’s going back to algebra.

So two of the three items are fine, and the third one could be satisfactory if we deem it to be so. It’s a question of whether we want to insist on the use of a variable other than C. I think that’s what it boils down to.

Is it actually appropriate for us and within our power to dabble in such a micro-issue of the choice of variable in the definition of a formula? Presumably it is, but let me raise that rhetorically.

Colleagues, are there any comments or questions?

[Translation]

Mr. El-Khoury: There is a discrepancy between French and English as to the use of a “C” variable in a formula. The definition varies from formula to formula, but I can tell you that in general, the answer is satisfactory. I don’t have a problem with it.

Senator Saint-Germain: Have we documented the cases so far to determine whether this different definition for the same variable has been detrimental to anyone, or are we seeking legislative consistency?

Ms. Pilon: The issue was raised for consistency so that we could be sure why the same variable was used when there were two definitions. If you want us to go back to your first question, we can always do a search, but we had raised the issue at the consistency level.

Senator Saint-Germain: If I may, I have a comment. I think that as long as there was no documented negative impact to anyone, the notion of consistency in a regulatory consultation would have been relevant. You’re right to point that out, but I don’t think it warrants a regulatory change at this time. Thank you.

[English]

The Joint Chair (Senator Woo): Thank you, senator. That seems to make sense to me.

I’m looking around the room to see if there are any other comments. If not, we will proceed as recommended, and we will pursue the issue of the so-called inconsistent variables; we’ll let the department proceed as they propose.

Before I invite counsel to take on the next item, I want to welcome our joint chair, Mr. Allison. I invite him to take over chairing this committee.

Mr. Dean Allison (Joint Chair) in the chair.

The Joint Chair (Mr. Allison): Thank you very much. Let’s move on to our next item.

SI/2018-61 — ORDER DESIGNATING THE DEPARTMENT OF EMPLOYMENT AND SOCIAL DEVELOPMENT TO PROVIDE SUPPORT TO THE MINISTER OF SENIORS

SI/2018-62 — ORDER DESIGNATING THE DEPARTMENT OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS TO PROVIDE SUPPORT TO THE MINISTER OF BORDER SECURITY AND ORGANIZED CRIME REDUCTION

(For text of documents, see Appendix G, p. 2G:1.)

Mr. Hilton: This is item 7, two orders designating certain departments to provide support to certain ministers. These files can be found at page 170 of the English version of the materials and page 171 of the French version.

Under the Salaries Act, the Governor-in-Council may designate a certain department to provide support to a minister listed in another provision of the act. As part of that provision, there are four specific ministers listed, but the last option is left open to “three additional ministers appointed by commission under the Great Seal.” Since the two ministers referenced in these orders, the Minister of Seniors and the Minister of Border Security and Organized Crime Reduction are not one the four listed ministers, confirmation was sought from the Privy Council that the two ministers formed two of the three untitled ministers “appointed by commission under the Great Seal.”

In its response, the Privy Council confirmed that this was the case, therefore there remains no further issue to pursue. Accordingly, this file may be closed.

The Joint Chair (Mr. Allison): Are there any comments? I am seeing none. We can move on to the next item.

[Translation]

SI/2018-65 — ORDER ASSIGNING THE HONOURABLE CARLA QUALTROUGH, A MINISTER OF STATE TO ASSIST THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT

(For text of documents, see Appendix H, p. 2H:1.)

Ms. Pilon: Let’s move on to item 8, Order in Council delegating the Honourable Carla Qualtrough Minister of State to assist the Minister of Employment and Social Development.

This item can be found on page 178 of the PDF document in French, and on page 177 in English.

The Privy Council Office has responded to the concern raised regarding the use of the adjective “délégué” and agrees that it should not be part of the text of the French version of the order. It also clarified that the model wording used in the drafting of this type of order no longer contains this adjective. Therefore, this file can be closed.

[English]

The Joint Chair (Mr. Allison): Are there any comments from anyone? Seeing none, we will move that to be closed.

[Translation]

SI/2018-86 — ORDER DESIGNATING THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES FOR THE PURPOSES OF SECTION 23 OF THE PUBLIC SERVICE EMPLOYMENT ACT

(For text of documents, see Appendix I, p. 2I:1.)

Mr. Hilton: The file for item 9 can be found on page 182 of the French version of the PDF document, and on page 181 of the English version.

This order was made on January 13, 2016, but was not registered until October 3, 2018.

While the order had already been repealed by the time it was considered, and a statutory instrument of this type is not required to be forwarded for registration within seven days of its issuance under the Statutory Instruments Act anyway, this two-and-a-half year delay was still really out of the ordinary.

The Privy Council acknowledged that the delay was significant, and explained that the delay was the result of an “administrative oversight” and that it has updated its internal processes to “prevent the reoccurrence of such an oversight.”

If members are satisfied, this file can be closed.

[English]

The Joint Chair (Mr. Allison): Any discussion at all? Seeing none, let’s move on.

SI/2019-55 — ORDER FIXING JULY 11, 2019 AS THE DAY ON WHICH THAT ACT COMES INTO FORCE

(For text of documents, see Appendix J, p. 2J:1.)

Mr. Hilton: This file can be found at page 185 of the English version of the materials and page 186 of the French version.

The enabling authority cited for this order, section 207 of the Accessible Canada Act, only existed in the version of the act as passed by the House of Commons. The correct enabling authority found in the Royal Assent version of the act was section 206. Despite the error, which the Privy Council acknowledged, there is no ambiguity as to the intent of the order. Furthermore, what ultimately matters is not whether the enabling power is cited properly but whether the requisite power exists, which it does in this case. If members are satisfied, this file may be closed.

The Joint Chair (Mr. Allison): Is there any discussion at all? Having seen none, let’s move on.

SOR/2002-227 — IMMIGRATION AND REFUGEE PROTECTION REGULATIONS AS AMENDED TO SOR/20015-61

(For text of documents, see Appendix K, p. 2K:1.)

Mr. Abel: Item 11 concerns the Immigration and Refugee Protection Regulations. This item begins at page 190 in the English version of the materials and page 191 in the French version.

In 2006, 140 points were raised in connection with these regulations, most of which have now been resolved. As responsibility for these regulations is divided between the Department of Immigration, Refugees and Citizenship and the Canada Border Services Agency, members will find separate correspondence in the file to and from each entity. I will deal with each entity separately in order to avoid confusion.

Turning first to matters under the responsibility of the CBSA, one issue has been resolved by the addition of subsection 47(4) to the regulations. This provision sets out factors that must be considered when assessing a guarantor’s application. The inclusion of these factors will reduce the risk of arbitrary decision making that could arise from the exercise of this discretionary power to grant the application.

There are still a number of promised amendments to be made. One additional regulatory amendment has been added to this list following the last time this file was before the committee. This is because the agency had intended to pursue a legislative change to the act but has now decided to amend the regulations instead. These amendments were expected to come into force in the 2020-21 fiscal year. They have not yet been enacted.

Turning to the departments, one promised amendment was made in June 2019 to section 11 of the regulations. This closed an unintentional gap that affected stateless persons applying for permanent residence.

Eleven previously promised amendments are still outstanding and are expected to be included in one or more miscellaneous amendment regulations packages. These amendments have also not yet been made, but they may have been delayed by the pandemic.

Finally, the department has agreed to clarify the meaning of the term “offences of a sexual nature” in the regulations and is studying possible amendments toward this end. This would resolve the last outstanding matter on this file when it is completed. An update was promised by March 2020 on this, but the committee has received nothing yet.

If members are satisfied with the foregoing, counsel could send separate letters to the CBSA and to the department seeking updates as to when all of the outstanding promised amendments will be made.

The Joint Chair (Mr. Allison): Thank you very much, Mr. Abel. Do we have any comments? We would like to follow the advice and send out the letters. That concludes item 11.

[Translation]

SI/2019-24 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN NUNAVUT (HANS ISLAND) ORDER

(For text of documents, see Appendix L, p. 2L:1.)

Ms. Pilon: Item 12 is on page 207 of the French PDF and page 204 of the English PDF.

The department has responded to the concern raised regarding the discrepancy between the French and English versions of this order. The department has agreed that the order will be corrected if it is renewed or amended. Therefore, this file can be closed.

[English]

The Joint Chair (Mr. Allison): Any comments? Seeing none, we will move to item 13.

[Translation]

SOR/2018-220 — REGULATIONS AMENDING THE CROWN CORPORATION GENERAL REGULATIONS, 1995

(For text of documents, see Appendix M, p. 2M:1.)

Mr. Hilton: This file can be found on page 214 of the French version of the PDF document and page 211 of the English version.

A small typographical error in the French version of the regulation has been corrected pursuant to subsection 27(c) of the Legislation Revision and Consolidation Act, which provides that, in maintaining a consolidation of the statutes or regulations, the Minister of Justice may “correct grammatical and typographical errors, without changing the substance of any enactment.” Consequently, this file may be closed.

[English]

The Joint Chair (Mr. Allison): All right. Do we have any comments? No discussion. We will move on to statutory instruments without comment.

SI/2018-94 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE TWO ACTS COME INTO FORCE

SI/2018-101 — ORDER FIXING THE DATE OF ENTRY INTO FORCE OF THE COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP AS THE DAY ON WHICH THAT ACT COMES INTO FORCE

SI/2018-108 — ORDER AMENDING ORDER IN COUNCIL P.C. 2018-1314 OF OCTOBER 26, 2018

SI/2018-110 — ORDER FIXING DECEMBER 10, 2018 AS THE DAY ON WHICH SECTIONS 70 TO 72 OF THAT ACT COME INTO FORCE

SI/2018-113 — ORDER FIXING THE 210TH DAY AFTER THE DAY THIS ORDER IS MADE AS THE DAY ON WHICH SECTION 39 OF THAT ACT COMES INTO FORCE

SI/2018-114 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH DIVISION 19 OF PART 6 OF THE ACT COMES INTO FORCE

SI/2019-16 — ORDER FIXING APRIL 3, 2019 AS THE DAY ON WHICH SECTIONS 14, 78 AND 83 TO 88 OF THE ACT COME INTO FORCE

SI/2019-17 — ORDER FIXING APRIL 30, 2021 AND APRIL 30, 2020 AS THE DAYS ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

SI/2019-21 — ORDER FIXING THE DAY THAT IS 200 DAYS AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

SI/2019-26 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTION 110 OF THAT ACT COMES INTO FORCE

SI/2019-30 — ORDER FIXING JULY 30, 2019 AS THE DAY ON WHICH THE ACT COMES INTO FORCE

SI/2019-31 — ORDER FIXING SEPTEMBER 1, 2019 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

SI/2019-32 — ORDER FIXING DECEMBER 1, 2020 AS THE DAY ON WHICH THAT ACT COMES INTO FORCE

SI/2019-37 — ORDER FIXING THE 240TH DAY AFTER THE DAY THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

SI/2019-38 — ORDER FIXING (1) THE FIRST ANNIVERSARY OF THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTION 12 OF THAT ACT COMES INTO FORCE; AND (2) THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTIONS 45 TO 58 OF THAT ACT COME INTO FORCE

SI/2019-41 — ORDER FIXING SEPTEMBER 1, 2019 AS THE DAY ON WHICH THAT ACT COMES INTO FORCE

SI/2019-47 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

SI/2019-49 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

SI/2019-71 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH PART 1.1 AND CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

SI/2019-76 — ORDER FIXING JULY 29, 2019 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

Ms. Dupuis: The final matter on the committee’s agenda for today is a list of 20 statutory instruments that have been reviewed by committee counsel and have been found to comply with all the joint committee’s criteria. These files could be closed without comment.

The Joint Chair (Mr. Allison): Senator, I think I had the easier part to chair than you did. I’m going to turn it back over to you, Senator Woo. That concludes all the business we have to take care of right now.

The Joint Chair (Senator Woo): I wish to thank you and all colleagues, including those who were substituting for the regular members, and above all to thank our clerks and the counsel — the team led by Ms. Dupuis — for the terrific work. I don’t know when we’ll meet again, colleagues. There is a lot of backlog and we’re trying our best to meet as soon as we can, subject to all the safety needs, so we can get through this backlog.

Mr. Michaud, is there anything else that we need to deal with?

The Joint Clerk (Mr. Michaud): No, Mr. Chair.

[Translation]

The Joint Chair (Senator Woo): Thank you very much, everyone.

[English]

Have a very nice day.

(The committee adjourned.)