REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Monday, October 28, 2024

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

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

[Translation]

The Joint Chair (Mr. Albas): Good morning, everyone.

[English]

Let’s start our meeting today of the Standing Joint Committee for the Scrutiny of Regulations. You have all received the package and agenda. We’ll start with letters to and from ministers.

SOR/2017-230 — ORDER AMENDING THE IMPORT CONTROL LIST

(For text of documents, see Appendix A, p. 20A:1.)

Julie Lévesque, Counsel to the Committee: This file pertains to the November 2017 Order Amending the Import Control List made by the Department of Foreign Affairs. This file was first presented to the joint committee on November 8, 2018, where it was explained there had been a one-day gap in authority under the Export and Import Permits Act for conducting Canada’s steel monitoring program. Two weeks later, the then joint chairs sent the then minister a letter to point out the one-day gap in the monitoring of the program in 2017 and mentioned there had also been a two-month gap in the 2014 program.

In both cases, a gap occurred because the enabling authority that was used provided an automatic deemed removal of certain products from the list at the end of three years. The list was not re-established or amended in time. The joint chairs at the time cautioned that carrying out the program for any length of time without authority was unacceptable regardless of circumstances.

Not having received any response to that letter, the then-joint chairs sent another letter six months or so later on June 5, 2019, explaining that while their previous letter did not explicitly require a response, an acknowledgement of the one-day gap would be appreciated, as would an assurance that, if the program were to be re-established, outthe appropriate time frame for making a new list would be respected.

No response to either of these letters has ever been received. However, as the related briefing note mentions, a 2020 order was made amending the list pursuant to a different enabling authority. Using that authority, the list is no longer subject to a deemed removal date, which eliminates a potential future gap in authority.

What members need to consider now is that the minister’s office has never provided any assurance or even just a response. This being the case, three options on how to proceed are available. The first option could be to simply close the file given that the lack of authority issue is now moot. It is no longer a live issue. The second option would be to still close the file but to have the joint chairs also send a closing letter to the current minister expressing the joint committee’s dissatisfaction with the then-joint chairs’ November 2018 and June 2019 letters having gone unanswered. A third option would be to keep the file open and that the joint chairs send a letter to the current minister to pursue a response to the then-joint chairs’ November 2018 and June 2019 letters in which case that file would be brought back to before committee with an eventual update.

The Joint Chair (Mr. Albas): Just to be clear, this is not the current minister; it was two ministers ago.

Ms. Lévesque: Correct. Three ministers ago.

The Joint Chair (Mr. Albas): Thank you.

Mr. Davidson: Good morning, colleagues. I thank the analysts. I read this file. I tend to support option 2. Regardless of who the current minister currently on this file is, I think we have to let ministers know that they have to respond to this committee. It is a reasonable thing. I think the file can be closed, but we have to point out it is unacceptable.

We are seeing this in a number of departments. I know I’m experiencing it right now in a response to a local aerodrome of the illegal dumping of fill. I’m on the fourth minister without a response from Transport Canada. It’s very concerning when ministers don’t respond. My recommendation would be option 2.

The Joint Chair (Mr. Albas): Thank you. I just wanted to point that Peter Bernhardt, when he was our counsel, once said that now Global Affairs’ approach seemed to be to not respond to a letter from the Standing Joint Committee for the Scrutiny of Regulations in the hopes that eventually someone else will be appointed to your position and then they’ll have to answer it.

Mr. Louis: I have a question first, then maybe a comment to counsel. Did you say this loophole has been closed, that this won’t happen again?

Ms. Lévesque: Correct.

Mr. Louis: That’s what I needed to hear as far as making sure this is not going to happen again. I do agree with the letter. If we say that this has happened in 2018 and for two months in 2014, it is not a partisan thing; it has happened under both governments. It is a letter not to say to fix the problem, because that’s fixed, but that we deserve a response. That makes sense to me. Option 2, thank you.

The Joint Chair (Mr. Albas): There does seem to be some nodding of heads. Are we comfortable with a letter as laid out in option 2, expressing that we expect a response from the minister or her department in the future? Alright, thank you.

SOR/2020-208 — INTERIM ORDER NO. 10 AMENDING THE EMPLOYMENTINSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

(For text of documents, see Appendix B, p. 20B:1.)

Geoffrey Hilton, Counsel to the Committee: As a brief reminder from our last committee meeting, these interim orders were made under a temporary enabling authority under the Employment Insurance Act, which authorized the Minister of Employment and Social Development to make amendments to the act during the pandemic by way of interim orders rather than needing to go through the usual legislative process. However, this power could only be exercised up until September 30, 2020, meaning that after that date, any issue raised in these interim orders could only be corrected by way of a direct parliamentary enactment and not through any future interim orders.

In Interim Order No. 10, two main issues were raised with the Department of Employment and Social Development. Within the first main issue, two sub-issues were raised.

The first sub-issue is rather technical in its nature, so I will speak on the matter in very general terms. The first sub-issue concerned a provision of the act, section 153.171, which attempted to authorize a person who qualified to receive unemployment benefits and who received an additional top-up of 300 hours of insurable employment under a different provision to be able to apply for special benefits in circumstances relating to illness, pregnancy and child care, even if they were not a major attachment claimant. A major attachment claimant is defined as a claimant who qualifies to receive benefits and has 600 or more hours of insurable employment in their qualifying period. In essence, the idea was to allow a person to apply for those special benefits when they normally would not have been entitled to them based on their hours of insurable employment, provided, of course, that all other requirements for accessing those benefits were met.

The problem, though, was that the provisions relating to those special benefits expressly state that those benefits are only payable to a major attachment claimant. So even though the provision authorized a person who is not a major attachment claimant to make a claim under those special benefit sections, it is not necessarily sufficient to override the explicit wording in the act that those special benefits are only payable to a major attachment claimant. In other words, a person may have been able to make a claim for those special benefits, but the claim should have been denied according to the wording of the act. The department stated that it believed that the provision removed the requirement to be a major attachment claimant in order to qualify for those special benefits, but it did not provide any reason why this would be so.

In any event, it may actually be that section 153.171 is superfluous. As noted, section 153.171 applies to a claimant who qualifies to receive unemployment benefits and who received the additional 300 hours of insurable employment. To first qualify for unemployment benefits, a person is required to have at least 420 hours of insurable employment. Therefore, any claimant who qualified for unemployment benefits and who also received those additional 300 hours must have at least 720 hours of insurance employment, and that would mean that the person necessarily would have more than the required 600 hours of insurance employment needed for the purposes of a claim under the special benefit provisions. In other words, every claimant described in section 153.171 is possibly already a major attachment claimant, and at this point, it is not clear what purpose this provision serves.

The second sub-issue with section 153.171 was that one of the special benefit provisions referred to in the provision — section 21 — did not actually entitle a person to the illness benefits referred to in that provision. Rather, all section 21 did was disentitle or limit those illness benefits for certain claimants. It did not establish any benefits one could apply for. The department’s response on this point does little to reconcile this fact. As noted under the first sub-issue, though, it may be that section 153.171 serves no purpose at all, in which case this error may not be consequential. A further reply from the department regarding whether section 153.171 is superfluous is therefore necessary before concluding on these two sub-issues.

The second main issue concerned a main provision of the act, subsection 153.191(1.1), which purported to relieve a claimant who received illness benefits under section 21 from serving a waiting period before receiving those benefits. As just noted, though, section 21 does not entitle a claimant to illness benefits and thus the reference to section 21 again seems to have no effect. The department confirmed that its intention was to waive the waiting period for benefits under section 21 of the act, but it is again difficult to see how this is possible. As it stands, though, the power to amend the act by way of interim order is now defunct, so the reference to section 21 in both section 153.171 and subsection 153.191(1.1) can only be addressed by direct parliamentary enactment.

If members therefore agree, a further letter could be sent to the department along the lines just discussed, specifically asking it for more information on whether section 153.171 is superfluous, as well as on how it intends to resolve the inaccurate reference to section 21 in both section 153.171 and subsection 153.191(1.1).

Mr. Webber: Thank you for that, Mr. Hilton. Would it be possible for you to just read that over one more time so that we get it down pat? I’m just kidding.

I agree with the letter, absolutely, although I would like to see a timeline involved where they have to respond back to us. If we can get that, then we would get a response. If not, we should have the Department of Employment and Social Development come here as witnesses and speak to us in front of the committee here to explain to us exactly what is going on there and exactly what you said. Maybe we can get another briefing at that time as well from you.

Mr. Louis: Again, I have one question before a comment. In section 21, you said the power to amend the act is defunct. Can you expand on that?

Mr. Hilton: This was an interim order that amended the act. Usually for acts to be amended, they have to go through the usual legislative process. In the early stages of the pandemic, the act was amended to provide the minister with the power to amend the act by way of interim orders, but that power could only have been exercised up until September 30, 2020. Any changes that the committee would be requesting to the act can no longer be made by way of an interim order made by the minister; it has to be included in a bill before Parliament.

Mr. Louis: Thank you. That’s helpful. So in early stages, this was flying the airplane while building it. Yes, I think a letter does make sense. I don’t think we are at the point we need to invite people yet. It seems like this has a simple explanation that something is superfluous. I agree a letter and an answer would be appropriate.

The Joint Chair (Mr. Albas): I don’t think MP Webber was —

Mr. Webber: I was only suggesting them come here if they don’t respond within a certain time period, and we should put that timeline down in the letter.

The Joint Chair (Mr. Albas): Do you have a suggestion? I think we have been using 90 days recently. Is that comfortable with all sides? Looks like we have agreement. Looking online, everyone seems to be fine. I think we have guidance. Thank you. I’m going to allow you to proceed and lay out what has happened.

SOR/2018-134 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (DESIGNATED PROVISIONS – PROJECTION OF DIRECTED BRIGHT LIGHT SOURCE AT AN AIRCRAFT)

(For text of documents, see Appendix C, p. 20C:1.)

Mr. Hilton: Thank you, Mr. Joint Chair.

Before I go into the matters raised in this file, I should note that it will involve the discussion of a response that the Department of Transport had classified as protected. Thus, I would recommend the committee move in camera before I continue.

The Joint Chair (Mr. Albas): Based on the recommendation, is it agreed that each committee member be allowed to have one staff member during the in camera portion and that one individual staff member from each recognized party or parliamentary group be allowed to be present?

Hon. Members: Agreed.

The Joint Chair (Mr. Albas): Is it agreed that the committee allow the audio recording of the in camera portions of today’s meeting; that one copy be kept with general counsel for the committee for consultation by committee members or staff; and that the audio recording be destroyed by general counsel when authorized to do so by the Subcommittee on Agenda and Procedure, but no later than at the end of this parliamentary session?

Hon. Members: Agreed.

(The committee continued in camera.)

(The committee resumed in public.)

The Joint Chair (Senator Woo): Colleagues, we’re back in open session. Some of you would have been here in 1978 discussing this file, so you would remember well the details of this incident, which we’ll ask Mr. Hilton to explain.

[Translation]

SOR/78-830 — WOOD BUFFALO NATIONAL PARK GAME REGULATIONS

SOR/2010-140 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA NATIONAL PARKS ACT

SOR/2011-217 — REGULATIONS AMENDING THE NATIONAL HISTORIC PARKS GENERAL REGULATIONS

SOR/2017-21 — REGULATIONS AMENDING CERTAIN PARKS CANADA AGENCY REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix D, p. 20D:1.)

Mr. Hilton: This is item no. 4. Amendments that address various issues raised with Parks Canada in the four files mentioned in the agenda were made in 2018 by SOR/2018-250. The majority of the amendments address issues relating to the unnecessary granting of discretionary powers to the President and CEO of Parks and subjective elements relating to the exercise of this discretion by superintendents, while others address a possible violation of the Charter, simplifying the wording and clarifying the daily catch and possession limits for fish.

For the first three files listed in the agenda, SOR/78-830, SOR/2010-140 and SOR/2011-217, many of the issues raised have been resolved, but some remain outstanding and will be addressed in the committee file on SOR/2018-250.

For the fourth file, SOR/2017-21, the issues raised have been fully addressed in SOR/2018-250.

Therefore, if the committee members are satisfied, the four files mentioned can be closed, while file SOR/2018-250 will be presented at a later date.

[English]

The Joint Chair (Senator Woo): Are there any comments? There are some outstanding issues, but they’ll be dealt with separately. That’s the message. We shall proceed accordingly and close these files. Moving on to “reply satisfactory,” Mr. Hilton.

SOR/2020-173 — INTERIM ORDER NO. 7 AMENDING THE EMPLOYMENT INSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

(For text of documents, see Appendix E, p. 20E:1.)

Mr. Hilton: In this file, a concern was raised with the Department of Employment and Social Development regarding the use of some discretionary language. Specifically, a provision of the Employment Insurance Act enacted by this interim order required that the one-week waiting period that would normally apply before a claimant can receive certain maternity or dependent care benefits to be waived. Another provision, though, then stated that if a claimant was entitled to certain top-up payments by their employer during the waiting period, then the claimant may serve the waiting period. At issue was the term “may” and whether it was truly intended that a claimant might or might not serve the waiting period before receiving benefits. In other words, it was not clear why a claimant would ever wish to voluntarily serve the waiting period and delay their benefits.

The department’s reply confirms that this discretionary element was intentional, explaining that a claimant may desire to serve the waiting period due to interactions between certain earnings and benefits calculations pursuant to the Employment Insurance Regulations. As well, Interim Order No. 8 in this series of interim orders later made amendments to more clearly indicate that the claimant’s option to elect to serve the waiting period specifically relates to those earnings and benefits referred to in the Employment Insurance Regulations. Altogether, members may wish to consider this response satisfactory. If so, this file may be closed.

The Joint Chair (Senator Woo): I think we agree that it’s satisfactory?

Mr. Webber: You suggested that it may be closed, must be closed or shall be closed?

The Joint Chair (Senator Woo): Is there a waiting period involved?

Mr. Webber: There is no waiting period.

The Joint Chair (Senator Woo): I take it that we agree, reply satisfactory.

SOR/2020-187 — INTERIM ORDER NO. 8 AMENDING THE EMPLOYMENT INSURANCE ACT (FACILITATED ACCESS TO BENEFITS)

(For text of documents, see Appendix F, p. 20F:1.)

Mr. Hilton: This is the Interim Order No. 8 mentioned briefly in the previous item. In addition to making the amendments discussed in that file, counsel also raised the concern once again with the use of some discretionary language. Here, this interim order made it no longer mandatory for the Canada Employment Insurance Commission to verify the reasons for a person’s loss of employment where that person had filed a claim for employment insurance benefits under the Employment Insurance Act. Rather, it was left up to the commission’s discretion on when to give the person — now a claimant — and the relevant employer an opportunity to provide information concerning the reasons for the claimant’s loss of employment.

This naturally raised the concern that persons in like situations were at risk of being treated differently, so it was suggested to the Department of Employment and Social Development that the reasons for which the commission might refuse to give an opportunity to provide further information, or the factors guiding the commission’s decision, be added to the act.

In response, the department explained that the changes made by this interim order shortened the relevant period, from 52 weeks to 12 weeks, during which a claimant’s misconduct or voluntary leave would be disqualifying toward receiving benefits. The department further explained that since an unprecedented number of claimants were moving off the Canada Emergency Response Benefit program established during the pandemic, and on to regular Employment Insurance, the large volumes of claims required the commission to establish claims faster and to avoid potential delays.

While these changes had somewhat of a relieving effect for claimants, in that there’s now less time in which a claimant’s misconduct could be considered disqualifying, the commission was still not under any obligation anymore to verify the reasons for the loss of employment, which could hardly be seen as beneficial to a claimant. As noted earlier in today’s agenda, though, the authority to make further amendments to the act by way of interim orders expired in fall 2020. The department did state, however, that it would consider the concerns raised in this file, should there be a call to extend that authority. As well — in any event — the relevant provisions added to the act by this interim order ceased to have effect in fall 2021.

If members agree, this file could be closed, but that it be included in the closing letter to the department that the committee will follow up with the department should an opportunity to amend these provisions arise, or if similar provisions are enacted in the future.

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

Mr. Davidson: I think that seems reasonable. We can close the file.

The Joint Chair (Senator Woo): You’re in a very accommodating mood today.

Mr. Davidson: I’m in a good mood today. It’s great weather. It’s a great fall. Common sense is prevailing. It’s unbelievable.

The Joint Chair (Senator Woo): Super. Reply satisfactory, then.

SOR/2017-261 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS

(For text of documents, see Appendix G, p. 20G:1.)

SOR/2018-204 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS

(For text of documents, see Appendix H, p. 20H:1.)

SOR/2020-167 — BY-LAW AMENDING CERTAIN BY‑LAWS MADE UNDER THE CANADIAN PAYMENTS ACT

(For text of documents, see Appendix I, p. 20I:1.)

SOR/2021-201 — REGULATIONS AMENDING THE CANADIAN FORCES EMPLOYMENT EQUITY REGULATIONS

The Joint Chair (Senator Woo): The next four items are under the category of “Action Taken.” We don’t typically discuss these items, but you have the information.

If anyone has any comments or questions, I will open the floor to them. If not, we’ll take these files as “action taken” and move on to the final set of items.

SI/2020-10 — ORDER AWARDING THE OPERATIONAL SERVICE MEDAL WITH THE EXPEDITION RIBBON

SOR/2020-13 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SI/2020-24 — ORDER DESIGNATING THE MINISTER OF LABOUR AS THE MINISTER FOR THE PURPOSES OF THAT ACT

SI/2020-25 — ORDER DESIGNATING THE MINISTER OF INDUSTRY, WHO IS A FEDERAL MINISTER, TO BE THE MINISTER FOR THE PURPOSES OF THAT ACT

SI/2020-28 — ORDER DESIGNATING THE MINISTER OF FAMILIES, CHILDREN AND SOCIAL DEVELOPMENT TO BE THE MINISTER FOR THE PURPOSES OF THAT ACT

SI/2020-54 — ORDER DESIGNATING THE MINISTER FOR INTERNATIONAL TRADE TO BE THE MINISTER FOR THE PURPOSES OF THAT ACT

SOR/2020-169 — INTERIM ORDER NO. 6 AMENDING THE EMPLOYMENT INSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

SOR/2020-188 — INTERIM ORDER NO. 9 AMENDING THE EMPLOYMENT INSURANCE ACT (EMPLOYMENT INSURANCE EMERGENCY RESPONSE BENEFIT)

SI/2021-18 — PROCLAMATION REQUESTING THAT THE PEOPLE OF CANADA SET ASIDE APRIL 17, 2021 AS THE DAY ON WHICH THEY HONOUR THE MEMORY OF HIS LATE ROYAL HIGHNESS THE PRINCE PHILIP, DUKE OF EDINBURGH, WHO PASSED AWAY ON APRIL 9, 2021

SI/2022-42 — PROCLAMATION PROCLAIMING THAT HIS ROYAL HIGHNESS PRINCE CHARLES PHILIP ARTHUR GEORGE IS NOW, BY THE DEATH OF OUR LATE SOVEREIGN, KING CHARLES THE THIRD

The Joint Chair (Senator Woo): Again, we don’t discuss instruments without comment, but they are in your agenda for your reference.

Are there any other matters that members would like to raise? If not, thank you very much, we had a very productive meeting.

(The committee adjourned.)