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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue No. 47 - Evidence - February 28, 2019
OTTAWA, Thursday, February 28, 2019
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.
Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.
The Joint Chair (Mr. Albrecht): Welcome. You’ve all had the package for a few days, so we’ll go right to Item 1 on our agenda.
MAINTENANCE DREDGING SERVICES TONNAGE FEES (U1998-2)
(For text of documents, see Appendix A, p. 47A:1.)
Penny Becklumb, Counsel to the Committee: Item 1 is a schedule of fees that ships and other entities pay for dredging services for the maintenance of the St. Lawrence Seaway.
Eight issues are outstanding. Amendments were expected in January 2019 — last month — to address six of these issues, but we haven’t seen those amendments yet, so counsel should follow up with the department for those.
The last two issues relate to sections 3 and 4 of the Fees Schedule, two provisions that establish fees other than by way of fixing the fees, as required by the enabling act. The joint committee escalated these two issues to the Minister of Fisheries and Oceans last spring. With regard to section 4, the minister responded that the department is evaluating alternative options to best address this issue. An update on the department’s progress could be sought.
That leaves one last issue relating to section 3. The issue is that the fees set under section 3 are not fixed, because they are indexed to inflation based on the Consumer Price Index, the CPI. The minister stated that the department will replace the wording in the Fees Schedule to reference the new Service Fees Act, which requires that all federal user fees be automatically adjusted annually for inflation based on the CPI, beginning in the fiscal year 2019-20.
The problem with this solution is that based on the definition of the term “fee” in the Service Fees Act, that act applies only to fees that are fixed “in relation to a federal entity.” In the current case, the maintenance dredging service fees are fixed in relation to the Canadian Coast Guard. So is the Canadian Coast Guard a federal entity? The answer to this question will help determine whether DFO can rely on the Service Fees Act to authorize its fees structure in section 3.
The Service Fees Act includes the following definition of “federal entity.” It’s a department named in Schedule I to the Financial Administration Act; or it’s a division or branch of the federal public administration set out in column one of Schedule I.1 of that act; or it’s a corporation named in Schedule II of the Financial Administration Act. The Canadian Coast Guard doesn’t fit any of these descriptions, and therefore, it appears that the Canadian Coast Guard is not a federal entity.
Accordingly, the joint chairs wrote back to the minister in June of last year, asking for his help in obtaining from the department an explanation of how the issue with section 3 of the Fees Schedule can be addressed using the Service Fees Act when it appears the Canadian Coast Guard is not a federal entity, so that act doesn’t apply.
The minister wrote back promptly with the following explanation, which the joint committee may now consider. The essence of his argument is that the Canadian Coast Guard is a federal entity by virtue of it being a special operating agency within DFO. DFO is definitely a federal entity.
So what’s a “special operating agency”? This term is not legally defined, but it is defined administratively on the federal government’s website. A “special operating agency” is a unit within a department or agency that has some management flexibility, independence and separate accountability, but is considered part of the department and is not a separate legal entity.
Based on this information, the minister’s contention that the Canadian Coast Guard is a federal entity is not unreasonable, but if the joint committee decides to accept this argument, there may be broader consequences. According to the government’s website, there are 12 other special operating agencies within the federal government, so they also would all qualify as federal entities and any fee schedules that they have would also be indexed to the CPI.
Some options for going forward include the following: The joint committee could accept the minister’s position that a special operating agency is a federal entity. If it does so, the letter to the department could perhaps alert DFO of the likely consequence for other special operating agencies. Another option is to suggest that the Service Fees Act be amended to specify explicitly whether and which special operating agencies are federal entities. A final possibility is the joint committee might suggest to DFO that it amend its fee schedule so that it no longer states that the fees are fixed in relation to the Canadian Coast Guard but, rather, it states that the fees are fixed in relation to DFO, which is definitely a federal entity.
The Joint Chair (Mr. Albrecht): Thank you very much. We have the three suggestions there, so please focus on those in your comments.
Mr. Simms: Thank you, Ms. Becklumb. That was a great explanation.
I’ve been around long enough to know when this happened, when it was called a special operating agency. I’m amazed at how long it has taken for us to get to this stage. I would prefer — I’m not sure about my colleagues — if we just stick with the fee schedule and say it is DFO, as opposed to saying it’s the Coast Guard and recognizing the operating agency, wouldn’t this come up again?
There are 12 others. I didn’t realize there were 12. Take the Canada Revenue Agency. Is that a special operating agency? I do not know. But if there are 12 others, then we’re going to be back here at least 11 or 12 more times.
Ms. Becklumb: Not all of them have fee schedules. The minority do.
Mr. Simms: So we’ve got an issue here. Just recently, we had an issue of spending in the Coast Guard to clean up a boat off the coast of Newfoundland, but that money came from DFO. It was under the Oceans Protection Plan, which is not necessarily a part of the Coast Guard, but they had a direct line to the funding involved and they spent it. So it is what it is. It’s a huge part of DFO.
Therefore, I think we should address it by saying that a special operating agency is, indeed, a part of the department.
The Joint Chair (Mr. Albrecht): If I could clarify, you’re suggesting that we not accept the third option, which is simply to let it go, because 12 other agencies are implicated. Even if only two of them have fee schedules, it could still be a problem.
Mr. Simms: Not three; somewhere between one and two.
Mr. Dusseault: On this same topic, I wondered whether, in your experience, the Department of Fisheries and Oceans ever consulted the Department of Justice before providing that reply to you, since the implications may extend beyond the Department of Fisheries and Oceans.
Ms. Becklumb: Are you suggesting a letter?
Mr. Dusseault: No, indeed, they don’t say, but according to your experience, this would become a new interpretation on the government’s part, and not just on the part of the Department of Fisheries and Oceans.
Ms. Becklumb: Yes, that is right.
Mr. Dusseault: It might be important to ask for clarification. I don’t know whether we should ask the Department of Fisheries and Oceans or the Department of Justice to find out if this is really a new interpretation of the nature of these entities, and whether the Service Fees Act applies to the 12 bodies.
Ms. Becklumb: Are you suggesting we send a letter to the Department of Justice?
Mr. Dusseault: If the committee agrees, it would be up to the department to provide its wider interpretation for the other 12 entities, as compared to the one in the dossier before us today.
The Joint Chair (Mr. Albrecht): Can we hold that as a suggestion for now? If we come back to it, perhaps you would be prepared to make a motion if we see a consensus developing.
Mr. Miller: Excuse me. I’m relatively new here and not as familiar with this issue. It has never come up in my time here, but my understanding — and correct me if I’m wrong — is that we’re trying to come up with a way where fee schedules are automatically adjusted each year. Do I understand that correctly?
Ms. Becklumb: No. This fee schedule is automatically adjusted every year, and the authority says it has to be fixed. So we are asking how it’s fixed if it’s adjusted.
The minister has asserted that if you look at the new Service Fees Act, it allows for fixed fees to be adjusted to inflation. We’re asking, does that apply? Because the Service Fees Act only applies to federal entities, and this is made in relation to the Canadian Coast Guard. Is the Canadian Coast Guard a federal entity?
Mr. Miller: I get that part. The part I’m having trouble getting my head around is that you say it has to be fixed, but “fixed” gives the impression that nothing ever changes. The same fee structure from 1867 could be there today if you didn’t have the ability to change it. Would it not be okay or would it work if, from time to time, the entity or whoever makes the decisions adjusts the fixed rates when required? Is that a possibility?
Ms. Becklumb: Certainly, but they would have to change the regulation. There are various enabling powers.
Mr. Miller: Why?
Ms. Becklumb: Because the enabling act tells the bureaucrats — the Governor-in-Council, actually — what regulations they can make. When they say fees are to be fixed, this committee has interpreted that means they are fixed, that we definitely know what they are. Either you put a dollar amount down and we can see it’s a hundred dollars, or you can put down a formula where all of the components are known at the time it’s fixed, so you know in advance definitely what that number is going to be.
There is another power. If Parliament doesn’t need it to be fixed but anticipates it to be adjusted for inflation and the like, it can make a power enabling the Governor-in-Council to make regulations respecting fees. In that case, the regulation can provide a formula, perhaps have it indexed to inflation so that it does get adjusted every year. Here, the enabling power, which is in the Oceans Act, says “fixed.”
The Joint Chair (Mr. Albrecht): I welcome the recommendation from our counsel, but to me, the cleanest way to clean it up is to go with number 1 and include it in the Service Fees Act and be done with it once and for all.
Mr. Miller: My dismay was not at your explanation, just the process.
Mr. Benzen: I think we should accept their “special operating agency” definition and say that the Canadian Coast Guard is part of Fisheries. I think we should send a letter asking if they are aware that it may affect other things. If so and it doesn’t bother them, that should be fine.
The Joint Chair (Mr. Albrecht): So you’re arguing for number 3?
Mr. Benzen: I think their answer is good.
Mr. Badawey: I would agree with you. First off, the Canadian Coast Guard is, in fact, a special operating agency of the DFO. With that, I would recommend that we move to accept recommendation number 1.
The Joint Chair (Mr. Albrecht): I think I hear a general consensus developing, but there is also some disagreement. I want to give adequate opportunity for discussion.
To me, recommendation number 1 in your notes gives a very definite and long-lasting solution to the problem that is not as likely to come back and bite us as the other two, but I think that’s where we are at.
Mr. Tan: There are a total of 12 entities that have similar situations. If we change this one, other entities may ask for similar changes in the future. Will those requests eventually come back to our committee as well?
The Joint Chair (Mr. Albrecht): My understanding is if we go with number 1, we don’t have the problem with the other 12.
Mr. Tan: I mean if you only change this one.
Other entities will ask for changes as well. Those requests will also eventually be discussed in the committee, I guess.
Ms. Becklumb: Potentially. If they change their fee schedule and we review it, this issue could come up again.
Mr. Tan: We can change it — number 1. My question is, we can change it for everyone or change it one by one if there is a request.
Cynthia Kirkby, Acting General Counsel to the Committee: If we were to suggest amending the Service Fees Act to indicate that a federal entity includes special operating agencies, then that would cover all special operating agencies. Unless we discover that there are other types of organizations within federal departments, that should take care of it. I can’t even imagine what other types of agencies or entities wouldn’t already be listed in the Financial Administration Act. I think that should cover it.
Mr. Tan: So you are open to make all changes?
Ms. Kirkby: This one change should address all the situations.
The Joint Chair (Mr. Albrecht): Number 1 is the least likely to come back and create more problems for our committee and counsel. It deals with it more decisively.
The Joint Chair (Senator Day): This is a question for counsel. If we opt for recommendation number 1, the Service Fees Act should be amended. This is not within the Department of Fisheries and Oceans. What happens next? Would we have to go to Justice or another department and say, “Please make this change and this is why we would like you to make the change,” or do we leave it to Fisheries and Oceans to squire that through the bureaucracy and get that change made?
Ms. Kirkby: I would think that, practically, we would end up sending a letter or two, or one letter that is cc’d. In that way, it would have continuity. We would write to whomever is responsible for the Service Fees Act and cc the Department of Fisheries and Oceans so they know what’s happening with the file.
The Joint Chair (Senator Day): It would be nice to keep it within the Department of Fisheries and Oceans because they are familiar with this. This is going to be with us for a long time if we try to get an amendment outside of Fisheries and Oceans.
The Joint Chair (Mr. Albrecht): Any further comments? Seeing none. I’m going to call for the question.
All in agreement that we ask our counsel to proceed with number 1 as indicated in our notes. May I see your hands? So ordered.
Next is Item 2 on our agenda.
SOR/2014-198 — FIREARMS RECORDS REGULATIONS (CLASSIFICATION)
(For text of documents, see Appendix , p. 47B:1.)
Ms. Kirkby: The issue raised in 2014 is that either these regulations create a record-keeping requirement that has little consequence, or their intended effect exceeds by far the scope of the authority relied upon. Public Safety Canada has never provided an explanation that attempts to reconcile the gap between what the enabling act authorizes and what the regulations are purported to accomplish. As the chronology in the note describes, there has been a history on this file of the department failing to reply to correspondence and of the department delaying action on these regulations as it conducts broader policy work.
In March 2017, the department advised it intended to repeal the regulations as indicated on its Forward Regulatory Plan 2017-19. Repeal of the regulations has since been rolled over to the Forward Regulatory Plan for 2018-20 and could again be rolled over even further into the future.
Members considered this file at the meeting on October 18, 2018, and various options open to the joint committee were discussed, including inviting the minister to appear and issuing a notice of disallowance.
Members ultimately decided to send a letter to the department, conveying their expectation that the regulations would be repealed by February 2019. As of yesterday, there was no evidence that repeal has taken place. Rather, Public Safety Canada responded in its latest letter that its current intention is to repeal the regulations prior to the end of 2019-20. The department’s stated preference, however, is to wait until Bill C-71 receives Royal Assent and then conduct a comprehensive review of firearms-related regulations.
As members have seen numerous times, when committee concerns are bundled with broader reviews, it can result in years of delay. Considering that Public Safety Canada has already indicated an intent to repeal the regulations but provided no clear timeline to do so, and considering that the department has failed to provide an explanation for how the regulations could achieve their stated intent while remaining within the scope of their enabling provision, I would suggest members consider a notice of disallowance, but it is, of course, up to members of the joint committee to decide how to proceed.
The Joint Chair (Mr. Albrecht): One point of clarification. In your comments, you said Bill C-71 is waiting for Royal Assent. It is technically awaiting passage in the Senate. It’s in the Senate as far as I understand.
Mr. Badawey: Although this has been a somewhat tedious process, all of them are. I would recommend that we wait until Bill C-71 goes through and gets Royal Assent, and from there ensure that the intention to repeal, being the timeline of 2019-20, be solidified, for lack of a better word.
So, it would be a letter to them with that expectation articulated. Then, as well, waiting for the actual assent to be given and hopefully with the expectation that between 2019 and 2020, this regulation would be dealt with.
Mr. Miller: I’m going to disagree. What baffles me is why these regulations haven’t been changed. It’s almost like the bureaucracy saying, “We don’t agree with these or like these, so we’ll just wait until there’s a change in government.” That’s what it sounds like to me. I have no proof that’s the case, but it will be interesting to see, if Bill C-71 gets Royal Assent, how quickly they change the regulations or adjust them accordingly.
The Joint Chair (Mr. Albrecht): You will be arguing for disallowance as recommended by our counsel.
Mr. Miller: Yes.
Mr. Simms: I think Larry may have a point here. I’m trying to find the connection between these regulations and Bill C-71. Did they actually delineate why these two should be attached or one should be dependent on the other?
Ms. Kirkby: I looked briefly at Bill C-71. I don’t see the connection. These regulations are essentially a stand-alone. What they said was:
. . . if the Bill receives Royal Assent, officials will be undertaking a review of firearms-related regulations. . . . In the interest of a comprehensive perspective . . . .
So it’s essentially just reviewing the entirety of the regime. It’s not specific to these regulations.
Mr. Simms: It seems to me they’ve acknowledged the fact that they will go through with this, and they will be repealed.
Ms. Kirkby: Yes.
Mr. Simms: But it’s almost like they’re trying to say, “Let’s be safe or cautious.”
I’m interested in the fact that you did look at Bill C-71 in its entirety and didn’t draw any particular conclusion. So, disallowance? I’m new here, so can you explain that?
Ms. Kirkby: I can. I’ve prepared this as well.
Mr. Simms: What’s the ramification of that?
Ms. Kirkby: If the committee decided to issue a notice of disallowance, it would provide 30-days’ notice to the regulation-making authority that the joint committee intended to consider a report containing a resolution of disallowance. The committee is not bound to adopt a disallowance report once the period of notice has passed.
A notice of intent to adopt a disallowance report has at times been useful on its own to get results. It conveys the seriousness of the committee’s point of view, and there will often be action as a result of simply having issued the notice of disallowance.
I actually brought an example of a recent notice of disallowance that the committee issued on February 1 in respect of the patent rules. The file had been opened in 12 years prior to the notice of disallowance and then was closed within five months afterwards. So, it can be taken quite seriously.
There had been some concern at the previous meeting when this file was considered about how onerous it is to repeal a regulation. I brought examples of what looks like, and it’s one sentence: The regulations are repealed. There can then be an optional coming-into-force provision.
Mr. Simms: Quite onerous.
Ms. Kirkby: I think that many times the reason the process takes so long is not legal requirements but policy requirements, such as prepublication and preparing the Regulatory Impact Analysis Statement. Those aren’t required by law, but they definitely add to the time it takes. If this file did progress to the stage of a disallowance report, it would then impose a legal duty on the regulation-making authority to repeal the regulation within 30 days or whatever time the committee decided, and then it would be up to Public Safety Canada to ensure it was repealed within the time frame established, essentially, by Parliament.
Mr. Simms: May I ask a question of the joint chair?
Do you have any idea time of a time frame on Bill C-71? It’s probably not in your bailiwick, but —
The Joint Chair (Senator Day): I know that it’s one of the government’s bills — before we adjourn in July of this year.
Mr. Simms: Well, then I’d go for disallowance now.
The Joint Chair (Senator Day): I look upon their proposal as just an administrative facility. They’re prepared to do it. They say they’re also going to be doing a comprehensive review. It would be easy just to fit it into that comprehensive list of regulation changes, as opposed to a stand-alone and running it through all the steps. That’s the way I interpret what they’re proposing.
The Joint Chair (Mr. Albrecht): Counsel has indicated it’s a one-sentence step in disallowing —
The Joint Chair (Senator Day): But that’s the legal portion. There’s a whole lot of policy stuff involved here.
I’m in your hands.
Mr. Benzen: This far exceeds the authority. The scope of this is way beyond what they’re relying on. There’s no connection to Bill C-71, and these comprehensive reviews take forever and go on and on. I think we should go right to disallowance.
Mr. Miller: If we need a motion, I will so move.
The Joint Chair (Mr. Albrecht): I think we’re ready for a motion.
Mr. Badawey: I have already placed the motion.
The Joint Chair (Mr. Albrecht): Mr. Badawey had a motion to leave the whole thing until following the Royal Assent of Bill C-71, and we’ve had some discussion on both sides of the issue. If you’re ready to vote on Mr. Badawey’s motion, I’m prepared to call that.
All in favour of allowing this simply to ride until the passage of Bill C-71 and have it included in the comprehensive review, please raise your hand. Opposed?
Next is Item 3 on our agenda.
SOR/2015-212 — REGULATIONS AMENDING THE NATIONAL ENERGY BOARD ACT PART VI (OIL AND GAS) REGULATIONS
(For text of documents, see Appendix C, p. 47C:1.)
Ms. Becklumb: The sole issue of this file raised in 2015 relates to the definition of “natural gas.” Under the definition, natural gas is at least 85 per cent methane but may also contain other hydrocarbon gases as well as minor amounts of non-hydrocarbon gas and impurities. The debate has centred on the words “minor amounts,” which is a vague and subjective qualifier and therefore shouldn’t be used in a regulation. Natural Resources Canada has explained that since any natural gas exported from Canada will move along long-haul pipelines, the natural gas impurity content will be restricted by pipeline specifications.
Further, the department stated that gas compositions of pipelines can change as existing reserves deplete and new resources start producing. What may seem like a reasonable upper limit to “minor” now may not be a reasonable upper limit in the future. This was a factor leading the department to decline to precisely define the impurity content in its definition of natural gas.
When the joint committee considered this response a year ago, it noted the department’s reasons for wanting a flexible definition. Nevertheless, it concluded that the term “minor” is a vague and subjective qualifier and therefore shouldn’t be included in a regulation.
At the time, Bill C-69 had recently been introduced, which would repeal the National Energy Board Act and replace it with a new Canadian energy regulator act. This proposed new act includes the same enabling power for the Governor-in-Council to define natural gas for the purposes of 40-year export licences.
Accordingly, the joint committee proposed a practical solution. It conveyed to Natural Resources Canada its expectation that the vague and subjective wording in the current definition of natural gas will not be carried forward into a new definition of natural gas in regulations under the new act, if adopted. The department’s response does not address the specific questions that it was asked, aimed at drawing out how the department currently interprets the term “minor amounts.”
The department simply states that for the reasons it outlined in its earlier letters, specifying a precise amount would not be advantageous to the government, industry or Canadians. Accordingly, the department intends to carry forward the definition provided in the current legislation into regulations made under the new Canadian energy regulator act, if adopted.
The following is not in the note before you, but it seems that the nub of the problem is that the department is arguing in support of what it wants to do based on what it judges as best for Canada, but the joint committee has raised a legal issue and the department is not addressing the legal issue.
Under the National Energy Board Act, the term “natural gas” is to be defined in regulations. Defining a term means stating exactly what it means. What the department wants to do, however, is to provide enough flexibility for the meaning of the term “natural gas” to change over time and depending on pipeline specifications. In order to do this, a different enabling power would be needed, one that authorizes such a flexible approach. But as long as the enabling act authorizes only the Governor-in-Council to define the term “natural gas” in regulations, then that definition needs to be precise and it needs to be objective.
That said, in its latest letter, the department offers to meet with counsel to discuss the matter further. That might be a way forward, or counsel could draft another letter to the government explaining the legal impediment to reenacting a vague definition.
Mr. Maloney: Who raised the issue with the department? Who is it that’s taking issue with this definition?
Ms. Becklumb: The issue was originally raised by counsel, so one of us. It was raised in 2015.
Mr. Maloney: So it’s the people around this table or like-minded people.
Who here thinks we know more about this than the department? It seems to me we’re making an issue where there isn’t one. If the department thinks this is the appropriate way to deal with it and there hasn’t been a problem as a result, I would say we would defer to them.
The Joint Chair (Senator Day): Why don’t we let counsel meet with them?
Mr. El-Khoury: The Department of Natural Resources, madam, has understood that amending the definition will not be to its advantage.
We could send a letter to the minister and ask precisely why they don’t want to do this modification and give us a clear explanation. Based on their argument, I believe we will be able to draw a conclusion.
The Joint Chair (Mr. Albrecht): I’m wondering if there’s a middle-of-the-road approach. I like the suggestion of sitting down with the department. I understand they may not be able to precisely say it has to be 0.06 per cent, but could there be a range of saying it has to be between 0.06 and 0.16, or something that would give us a clearer definition, because “minor” is very subjective.
Mr. Badawey: I would agree. I like the idea of a sit-down with the department to get clarification — well, beyond clarification, actually — and try to drill down to a more succinct number. As Mr. Maloney stated, they know best, of course. I understand the legality of it, if we can hit the middle of the road with respect to the legality as well as what they’re trying to do. I do understand and respect what they’re trying to do because of the broad nature of the business, so to speak.
If a discussion can be had internally to try and come to a middle-of-the-road solution, that’s what I would recommend.
Mr. Simms: If I understand correctly, of the 15 per cent of the composition of the natural gas, there’s no stated limit. That’s what they’re asking for, right? Within the impurities of the 15 per cent — so 85 per cent is methane and the rest deals with other stuff, as it were. There are no stated limits within that 15 per cent; is that correct?
Ms. Becklumb: It’s other hydrocarbon gases and minor amounts of other impurities.
Mr. Simms: So it’s even less than that?
Ms. Becklumb: That’s what we asked: What does that mean? They said it would mostly be made up of the other hydrocarbon gases. Does that mean if there are no other hydrocarbon gases, but 2 per cent impurities, that’s not mostly made up? Is the proportion of other hydrocarbon gases and impurities really material? Is it necessary that there be more other hydrocarbon gases than impurities? They said, “No, we like our definition.”
They won’t address or engage in the argument. We’re trying to get a number. What does “minor” mean? Does that mean it has to be less than 5 per cent or 10 per cent? They won’t engage in the argument. They like their definition and they say it works.
Mr. Simms: It sounds like a degree of uncertainty.
Ms. Becklumb: It has to be changed over time. It will be defined by pipeline specifications that can only take certain types of gas. They want it to change. They want it to be flexible so they can understand it differently over time.
Mr. Simms: Quite frankly, I have no problem with that. Pipelines change over time. The gas elements don’t, obviously, but certainly the pipeline and the transportation of it would change over time, so I believe in the flexibility. But there are a few more questions that need to be answered.
Mr. Badawey: I know I should know this, but I’m going to ask anyway. Is Bill C-69 in the Senate right now?
The Joint Chair (Senator Day): It’s in committee, but in all likelihood it will be passed before we adjourn in July.
Mr. Badawey: If I may revise my motion to add some expediency to it, I would request when the correspondence goes out that it is addressed to the minister, not to the deputy minister, but to Minister Sohi himself.
The Joint Chair (Mr. Albrecht): I just want to clarify. I think general practice is that it goes to both; is that correct? When a letter is sent from this committee, it goes both to the minister and the department?
Ms. Kirkby: Correspondence generally goes to somebody called the designated instruments officer. If the committee wants us to send it to the minister, then we would do that.
The Joint Chair (Mr. Albrecht): We have a motion to send a letter directly to the minister with regard to these issues and ask him to send officials to sit down with our general counsel to find a solution. Does that summarize your motion properly?
All in favour of that motion raise a hand. So ordered.
We will move to Item 4 on our agenda.
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. 47D:1.)
Ms. Kirkby: The only issue raised in respect of this file is when these regulations came into force. According to section 2, these regulations:
. . . come into force on the day on which the Regulations Amending the Ozone-depleting Substances and Halocarbon Alternatives Regulations come into force . . . .
As it turned out, however, the ozone-related regulations did not come into force on “the day.” They came into force on two separate days which were approximately eight-and-a-half months apart. It was, therefore, put to Environment and Climate Change Canada that the coming-into-force provision was erroneous and should be amended.
In its reply, the department notes that most provisions of the ozone-related regulations came into force on April 16, 2018, and it argues that if the substance of both instruments is taken into account, then it is very clear that the intent is for these regulations to come into force on that date.
It is an unusual approach to have to compare the substance of two enactments to interpret a coming-into-force provision. In fact, a compelling counterargument could be made that the very clear intent is that the regulations come into force on the day on which all provisions of the ozone-related regulations are in force, which was January 1, 2019. Ultimately, the only way to resolve this ambiguity conclusively would be to correct the coming-into-force provision, and there is a suggestion for very clear wording contained in the note.
That said, one approach would be to ask the department whether there were any instances of enforcement in relation to the regulations during the period of ambiguity between April 16 and January 1. If the department can provide assurances that there were not, then the issue would seem to be moot. Otherwise, however, it would seem that some corrective action is required.
The Joint Chair (Mr. Albrecht): I wonder if both could be implemented. We could ask and also insist that they change it.
Ms. Kirkby: Both dates are past, so the only issue is whether it was in force during the period when there was some confusion.
The Joint Chair (Mr. Albrecht): Shall we ask them to clarify that no enforcements were made during that period? If so, the file is closed, and if there were enforcements, that they be changed and the proposed provisions be changed.
All in agreement with that? So ordered.
Next is Item 5 on our agenda.
SOR/2014- 149 — REGULATIONS AMENDING THE COASTAL FISHERIES PROTECTION REGULATIONS
(For text of documents, see Appendix E, p. 47E:1.)
Geneviève Pilon, Counsel to the Committee: The last submission of this file to the committee took place on September 28, 2017; at that time the committee took note of two technical amendments that had been made.
The only remaining issue is the exact meaning of the expression “an arrangement that is consistent with the NAFO Measures.” In 2017, the department had specified that the pre-publication of the promised amendments would take place in the spring of 2018. However, this did not happen. In fact, the department postponed the established timeline by over a year and now intends to pre-publish in the summer of 2019.
We could ask the department if it still intends to respect that timeline and let the department know that the committee still expects pre-publication to take place in the summer of 2019.
The Joint Chair (Mr. Albrecht): I’m wondering whether we could use a vague term like “summer” but include a date. I would suggest June 1. Any thoughts, having read this? It’s gone on for well over a year, beyond what they had originally promised. Is June 1 reasonable?
Mr. Dusseault: Summer starts on June 21.
The Joint Chair (Mr. Albrecht): I know. But it said it would be done by summer, so we’re giving them three full weeks to have it done after June 1. June 21?
Mr. Dusseault: Or June 31.
The Joint Chair (Mr. Albrecht): That’d be like February 30.
Any suggestions? Are you comfortable leaving it at —
Mr. Badawey: June 1 is fine.
The Joint Chair (Mr. Albrecht): Any opposition to making it June 1? That’s still quite a few months away. So ordered.
We’re making good progress. I’m going to turn the chair over to Senator Day.
The Joint Chair (Senator Day): Thank you. We’re moving on to Item 6.
SOR/2007-137 — ASSISTED HUMAN REPRODUCTION (SECTION 8 CONSENT) REGULATIONS
(For text of documents, see Appendix F, p. 47F:1.)
Ms. Becklumb: These regulations set out the rules around how a donor of human reproductive material, a sperm or egg donor, may consent to a person using their material to create an embryo and how the donor may withdraw their consent.
Six points were raised with the regulations in 2016. Approximately two years later, Health Canada prepublished amendments that would address five of the six points raised. It is suggested that counsel could ask the department for its time frame for finalizing these amendments.
One point is still in contention. It relates to section 9 of the regulations, which is set out in full in your notes. Section 9 states that if a person who has given consent to have their reproductive material withdrawn after their death wants to withdraw that consent, the person must do so in writing. Further, the withdrawal of consent is effective only if the person who intends to remove the reproductive material — presumably that’s a medical professional — is notified in writing of the withdrawal before the removal of the material.
The department was questioned about how the would-be donor would know to whom to direct their written withdrawal of consent and whether there’s any mechanism to bring the withdrawal of consent to the attention of the medical professional after the donor’s death. The department responded that there’s no such mechanism. Rather, a medical professional or establishment that receives a withdrawal of consent should communicate it to the person who intends to remove reproductive material.
Based on this response, the joint committee concluded that there’s a gap in the regulations. The joint committee was of the opinion that it’s not sufficient to simply hope that a donor’s withdrawal of consent is conveyed to the person intending to remove the donor’s reproductive material posthumously. That was put to the department.
The department responded with two new points. First, they suggested withdrawal of consent would likely be given to the same person who received the consent in the first place. If this is the case, then a person seeking the donor’s consent to remove reproductive material posthumously would, at the same time, be informed of the withdrawal of consent. The department writes that this scheme cohabits with professional obligations of physicians regarding informed consent.
The department’s second new point is that any potential amendments to the regulations that were considered in order to alleviate the joint committee’s concern involve placing onerous obligations on physicians.
In analyzing the department’s response, it might be noted that any withdrawal of consent would likely be given to the same person who received the consent in the first place, but not necessarily so. A written withdrawal of consent might not be given to a doctor or other medical professional at all. We might envision, for example, a situation where a would-be donor is dying in hospital, provides a withdrawal of consent to whomever is available, which might be a spouse or a family member. In such a situation, a medical professional accessing the deceased’s consent to remove reproductive material would not at the same time be informed of the withdrawal of consent.
The joint committee might consider whether it would like to pursue this type of example with the department to better understand how, in practice, the regulations would operate alongside professional obligations of physicians.
Mr. Miller: The longer your explanation went on, the more confused I became, but I do want to clarify one thing. When it refers to the removal of human reproductive material after their death, is that the donor’s death?
Ms. Becklumb: Yes.
Mr. Miller: Well, how —
Ms. Becklumb: That’s a medical question.
Mr. Miller: If it’s not medical. I don’t know what it is.
Mr. Badawey: Dr. Miller.
Mr. Miller: Isn’t this dead in the water — no pun intended — if the recipient did not give prior written approval before their death?
Ms. Becklumb: No. The issue is that they did. They gave consent that their sperm or egg can be removed after their death, but then they withdraw that consent in writing. How do we know they withdrew it? We want to make sure that withdrawal comes to the attention of the medical professional.
Mr. Miller: Two things. Would they not have had to have a letter that said that was their intent? Let’s say they created an embryo, and that embryo was planted in a donor recipient, if that’s the right term. Let’s say it was in the eighth month of a pregnancy. Does that mean it can be withdrawn medically?
Ms. Becklumb: No.
Mr. Albrecht: Just sperm or egg.
Mr. Miller: So it actually hasn’t created anything. Okay. That certainly puts it in a different light. I’m still no brighter as far as why this is an issue. If a written explanation was supplied ahead of time —
Ms. Becklumb: The donor provided consent and then changed their mind; they want to withdraw consent. They no longer give consent.
Mr. Miller: They did that when they were alive, so why wouldn’t it be withdrawn right then?
Ms. Becklumb: How does the doctor know they’ve withdrawn consent? There’s no requirement that the withdrawal be given to the person who’s going to remove the egg or the sperm. What’s the mechanism by which the donor’s wishes —
Mr. Miller: Wouldn’t the responsibility be on the original donor to make sure that the appropriate doctors were aware of it? If I were the donor, wouldn’t it be up to me —
Ms. Becklumb: The committee asked how they know to whom to give it? Which doctor is going to remove their egg or sperm?
Mr. Miller: I don’t have the exact answer for that, but it shouldn’t be a very hard thing to do. Wherever you made the donation, that’s where you would start.
I don’t know. I’ve never been through this, obviously.
Mr. Simms: It seems to me that this provides a regulation by which the communication of withdrawal of consent is done for the human reproduction material. But are we following a profession standard here? Is that what this is trying to find? In other words, notification has to be given to the physician who did it in the first place, but what you want to avoid is somebody in the family saying, “Well, I heard him say that he didn’t want to do this anymore.” That’s what you’re trying to avoid here; is that right?
Ms. Becklumb: No, it has to be in writing.
Mr. Simms: It has to be in writing.
Ms. Becklumb: The regulations say clearly that it has to be in writing, but it doesn’t say to whom it is given.
Mr. Simms: What if it’s a spouse or a partner?
Ms. Becklumb: That’s what we’re asking.
Mr. Simms: That’s right.
Ms. Becklumb: They would expect the donor who withdraws their consent would convey that to the same doctor they gave consent to in the first place, in which case there’s no problem. It doesn’t say that. What happens if they don’t? What if they make that withdrawal of consent to somebody else who’s not a doctor? What if they give it to a family member?
Mr. Simms: Right, but according to these regulations, now you’re saying that that does measure up as, “Yes, we will accept this as a withdrawal of consent.”
Ms. Becklumb: It has to somehow come to the attention of the doctor who’s going to withdraw the reproductive material. What’s the mechanism? How does it get from the person who receives the notice, the withdrawal of consent, to the doctor?
Mr. Simms: Yes, there has to be some sort of — I won’t say professional — official type of communication in place that is not enshrined in these regulations; is that correct?
Ms. Becklumb: Correct. It’s quite sparse.
Mr. Simms: That’s the gap you’re seeing.
Ms. Becklumb: It just has to be in writing; that’s all. It’s only effective if the doctor who intends to remove the reproductive material is made aware and notified of it. How do they? There’s no obligation on a non-doctor to convey this withdrawal of consent.
Mr. Shields: There is a wealth of information on this topic. It’s under the do-not-resuscitate orders. If you want to know how it’s done, it’s in the medical association. You refer to that. Everything you’re talking about is there. This has been fought for 20 years under the do-not-resuscitate orders. It’s the identical thing. The history and the written stuff to protect and communicate is all there. We don’t need to reinvent the wheel here. This has been done.
Mr. Badawey: That’s a great point. Why reinvent the wheel?
What is the actual process through which you would give consent? What starts it? Would it not make sense to then do the opposite? What actually starts the process of giving consent?
Ms. Becklumb: Under section 7, the person shall have a document signed by the donor stating that — you have to provide consent in writing. I haven’t reviewed the consent provisions in detail.
The Joint Chair (Senator Day): Does somebody keep a registry of this?
Mr. Badawey: That’s what I’m getting at. If, in fact, consent is given, to whom is the consent given? Therefore, pulling that consent would be the opposite, going through the same process to pull it.
Again, I agree with Mr. Shields that there’s more than likely a process in other circumstances that can be applied to this circumstance.
Ms. Becklumb: You’re suggesting that we either ask the department about that or rely on that being the case?
Mr. Badawey: Well, I would like to see that information before a decision is made, but I’ll go back to my first question. What is the process of giving consent in the first place?
Ms. Becklumb: I’m looking here at the consent, but this is a very specific situation where the reproductive material is to be withdrawn from a donor’s body after the donor’s death.
Mr. Badawey: To whom is that consent given?
Ms. Becklumb: It doesn’t specify.
Mr. Badawey: Is it an application? Is it a piece of paper? Is it a template that they give to a lawyer?
Ms. Becklumb: It doesn’t tell the donor what they have to do. It is instructions to the doctor, the person who is going to withdraw it. Before a person removes human reproductive material from a donor’s body, after the donor’s death, for the purpose of creating an embryo, the person shall have a document signed by the donor. So they have to have possession of the consent.
Mr. Badawey: Where do they get that document from?
Ms. Becklumb: That’s just it.
Mr. Badawey: That’s the information I need to know. One, what starts the process. We can draw back from there in terms of how to stop the process. Second, we may want to also look at the process Mr. Shields was alluding to with respect to other circumstances and that the same would be applied.
The Joint Chair (Senator Day): Let’s hold the suggestion.
Mr. Scarpaleggia: My comments are in the same vein as Mr. Badawey’s. When someone gives consent, is it registered somewhere? In the provincial system? Given that it’s a federal law, is it registered federally? That’s an important question. Where is the information of the original consent kept?
The next question would be: Would the law place an obligation on whichever doctor is doing the procedure posthumously to check some kind of record?
Mr. Simms: Well, I think a lot of the answers are right here in the response from the department from May 7, 2018:
The person, therefore, who is to remove the human reproductive material from a donor’s body after death and seek the consent to do so would, at the same time, also be informed of the withdrawal of consent.
This is where it comes into this issue. If it’s similar to the way other issues — as Mr. Shields points out — are done, the intent here is, “This scheme cohabits with professional obligations of physicians regarding informed consent.” Their intent is to say the withdrawal of consent should follow the same standards by which consent is given in the first place.
In reference to what Mr. Scarpaleggia said, the letter goes on to state:
Specific requirements regarding the validating of consent are also otherwise set out by provinces.
So I guess the gap you’re identifying should be closed, according to them.
Ms. Becklumb: It’s based on the assumption that the withdrawal of consent is given to the same person who received the consent in the first place. It all turns on the donor giving their withdrawal to the same doctor to whom they gave their consent. If that’s the case, then it should be fine. We’re asking, what if they don’t? What if they give it to their spouse or a family member?
Mr. Simms: So they should be concerned about what you have discovered, the gap.
Ms. Becklumb: Is the committee concerned? If so, we could pursue it. If you’re not concerned and feel confident that it’s not a gap or that it’s likely to work, then that’s fine and we can accept the response.
The Joint Chair (Senator Day): It has been suggested by Mr. Shields, Mr. Badawey and Mr. Scarpaleggia, and following your advice in your letter to us, that further information would be helpful for us in coming to a conclusion. I wonder if we could suspend this particular matter and ask you to do further investigation for us. Would that satisfy everybody?
The Joint Chair (Mr. Albrecht): The one comment I would like to make is that I personally do not agree that this would place onerous obligations on physicians. I think that’s a red herring they’re hiding behind. I think it’s only reasonable that the physicians are the ones to be informed. So in that communication, I suggest we reject the notion that it does place onerous obligations on physicians.
Ms. Kirkby: I think it’s fair to assume that a medical professional who’s looking to remove the material from the person after their death will make sure there is consent, absolutely. That’s just good practice. The problem is they have no way to know whether that consent has been withdrawn. That’s the gap. If somebody hasn’t handed it over to the exact same doctor who received the consent, there’s no mechanism for that particular scenario.
Mr. Badawey: That’s my point. Whatever mechanism informs the doctor of that consent, the same mechanism should be in place to inform the doctor that it has been pulled.
Ms. Kirkby: Yes, if it’s a person in their hospital bed giving it to their doctor and then for whatever reason they’re not able to also give the withdrawal of consent, perhaps because there isn’t time or the doctor isn’t available.
Mr. Badawey: So you’re speaking about a last-minute decision, then?
Ms. Kirkby: Potentially.
Mr. Shields: The other analogy is the organ donor transplant. Again, there is a litany of history and documentation as to how that process is done. Whether you consent to it by signing your driver’s licence in a province, you may choose to withdraw that. There is a litany of history done exactly on this issue of donor transfers. I’m not understanding where your confusion is because there’s so much documentation provincially in the medical associations on this one. On organ transplant, you can change your mind.
The Joint Chair (Mr. Albrecht): Even the family can change their mind.
Mr. Shields: Exactly. But that’s communicated to the doctors. The doctors know and understand this process. The medical profession knows and understands this. Go get the information.
The Joint Chair (Senator Day): All of this discussion is helpful for us.
Mr. Scarpaleggia: It all boils down to an administrative issue. Where is the information of the original consent kept? I know that the organ donation information would be kept somewhere in the provincial system, but I think we should know if the original consent to withdraw is kept in a doctor’s office in a filing cabinet or whether there is a central means of accessing this information. I think we need to find out about that.
Mr. Badawey: I want to understand this. Is this focused more on a last-minute decision versus having it on record?
Ms. Kirkby: The gap in the regulations is more likely to arise when it’s a last-minute thing because there wouldn’t be the ability to investigate who was intending to remove the material and provide the written consent to that person. That’s where the problem would arise.
Mr. Badawey: Good luck with that, because that’s a grey area. How do you fix that? If a person is sitting on their death bed and they change their mind, whether it’s an organ or anything else, that mechanism is very difficult for the doctor to determine, especially if the person is not coherent. If they pass that message on to a family member who happens to be sitting next to the bed, how does the doctor actually know that they’re telling the truth. That’s a very difficult mechanism to put in place.
Mr. Miller: Here at the end of the discussion, all of a sudden the emphasis seems to be that it’s on a last-minute decision. Provided that there is a letter, because you need the written permission, it’s irrelevant whether I signed my licence or did this 10 years ago or yesterday. Who cares if it’s last-minute, as long as the documentation or the written letter is there. Why are we really trying to split hairs and make it about a last-minute decision? If the letter is there, is that not all that’s required?
Ms. Becklumb: The last-minute issue is that if you have lots of time, then the donor, when they’re still alive, could make sure that their withdrawal of consent has made it to the right person. They’ll double-check with the doctor: “You got my withdrawal and that’s all settled?”
If it’s last-minute, they don’t have time to make sure that the withdrawal of consent comes to the attention of the right person, that it’s been registered, that it’s clear, that it has been received.
Mr. Miller: I don’t know, but I’m sure that a doctor is involved. If this donor is on their death bed, there’s going to be a doctor around someplace, so I’m presuming that the system would look after itself. I don’t know.
The Joint Chair (Senator Day): We’ll get some further information on this and get back to you.
Mr. Sangha: I do agree with Mr. Shields. He says there should be some system already in place in the provinces. If not, put a tag on the body. Any doctor who comes and attends that body later on will know that there has been a switch.
The Joint Chair (Senator Day): There are a lot of good ideas.
Counsel, if you could report back to us on this in due course with recommendations, that would be helpful.
Next is Item 7 on our agenda.
SOR/2017-110 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER SECTIONS 140, 209 AND 286.1 OF THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
(For text of documents, see Appendix G, p. 47G:1. )
Ms. Becklumb: Ten issues were raised with the department one year ago on this file. In response to five of these issues, the department has agreed either to make amendments or to take the issues into consideration when it makes miscellaneous amendments regulations in the spring of 2019. Counsel could follow up with the department to see that they’re still on track with that schedule.
In response to the other five issues, the department has provided explanations. Two of these explanations appear satisfactory; that is, point 1 raised in the letter relating to the executive portion of the letter and point 9 relating to Schedule 1.
The three other points may warrant further discussion. Points 2 and 3 relate to numerous provisions in which standards are incorporated by reference into regulations. The department was asked whether these standards are accessible as required under law and as the joint committee has interpreted the term. In short, they’re not. Some of the standards are not available in French. The department has committed to monitoring the availability of French versions of the standards and updating the references as opportunities arise.
The joint committee might accept this commitment, or perhaps it could ask the department about guidance that the department provides on standards in both official languages. Note that the new government-wide policy on regulatory development that came into effect last September states that when a unilingual incorporation is used, departments must provide guidance in both official languages.
Also, some of the standards are only available at a cost of between $52 and $336. The department suggests that these costs are reasonable. The joint committee might consider whether it agrees that these costs are reasonable, or it could ask the department how it came to the conclusion that they’re reasonable.
I want to mention one last thing before the committee considers the issue of whether these standards are accessible, and that is that the joint committee is currently pursuing the issue of accessibility of documents incorporated by reference on two other files. There’s the incorporation by reference file with the Department of Justice, where the joint committee is seeking a government-wide solution to issues around incorporation, and there’s also a file with the Treasury Board Secretariat relating to the cabinet directive on regulation which includes questions about incorporation by reference. In light of these files, the joint committee might consider how far it wants to pursue this issue with the Department of Environment.
I’ll pause for a moment to see if the committee wants to make some instruction about the incorporation by reference issue.
The Joint Chair (Senator Day): We dealt with incorporation by reference in a report some time ago. It’s an important area that we should keep an eye on.
Is there any further discussion on the incorporation by reference point that has been raised?
The Joint Chair (Mr. Albrecht): I would like clarification as to the timelines in terms of getting a report back. On page 3 of your notes, you talk about fees between $52 and $336, and yet they see that as reasonable. I guess the big question is this: What is reasonable in terms of fees and of having the documents available in both official languages?
If we’re having a report come back to us on the broader issue, we could wait on this one. Do we have a timeline?
Ms. Becklumb: From hearing back from Justice?
The Joint Chair (Mr. Albrecht): Yes.
Ms. Kirkby: I’m not sure. What we asked for from Justice is the list of all instances of incorporation by reference in federal regulations along with their costs and their language. That has been delayed significantly. I’m not sure exactly where that is. We are still waiting for them to compile that list.
The Joint Chair (Senator Day): So you’re keeping on top of that?
Ms. Kirkby: We are still prodding them.
The Joint Chair (Senator Day): So with five of the 10 issues raised, you indicated you would follow up to see if they’re on track.
Ms. Becklumb: Right.
The Joint Chair (Senator Day): We’re okay with those. With respect to the other five, is that where you need direction from us?
Ms. Becklumb: Right. Two of the explanations I suggested are perhaps satisfactory. They’re set out in the notes. The joint committee can give instructions on those as to whether it agrees or disagrees.
The Joint Chair (Senator Day): That’s eight of the 10?
Ms. Becklumb: That’s seven. Two of them relate to incorporation by reference. We’d need some direction from the committee whether it’s satisfied with what the department has stated, that the costs are reasonable, that some are only available in English but it will monitor for French availability and update the regulations when French becomes available.
Is that satisfactory, or would you like to pursue this further and ask how they decided those costs were reasonable? And have they provided guidance in both languages, despite the fact that the standards are only available in English? Would you like to pursue that or not?
The Joint Chair (Senator Day): Hearing nothing from our team here, I would assume that we’re satisfied.
Ms. Becklumb: Okay.
The Joint Chair (Senator Day): The department is saying that they’re reasonable. Why question their decision of reasonableness?
Ms. Becklumb: Okay. That leaves one last issue.
Mr. Dusseault: I am not sure the committee is satisfied with the fact that some incorporations by reference refer to documents that are in English only. We need to have that discussion, but I think it would be important to mention the need to provide documents in both official languages to them, as we have done in the past in our reports, that mentioned cost accessibility, among other things, but also the necessity that these documents be published in both official languages.
Ms. Kirkby: We are pursuing that one, too, in separate files, the broader issues. We are waiting for the Department of Justice information and also the Treasury Board, because they have the new policy under the Cabinet Directive on Regulation, which requires regulation-making authorities to provide guidance when they incorporate a document in only one official language.
That appears to be new, this requirement that they provide guidance if they’re not incorporating something in both languages. We can certainly ask questions about that: What guidance have you done to make sure that you’re complying with that policy and providing the information in both official languages?
I want to assure members that we haven’t given up on the broader issues and they’re being done together in a couple of other files.
The Joint Chair (Senator Day): Mr. Dusseault is quite correct. We felt it very important that both official languages be reflected by any documentation that is incorporated by reference.
You indicate that the department will be working on the translation of the French version.
Ms. Becklumb: No, they’re going to monitor for the availability of the standards in French. If they become available in French, they said they would update the regulations in due course to include the French versions.
The Joint Chair (Senator Day): They don’t want to do the translations, so they will monitor to see if some translation comes along?
Ms. Becklumb: Yes. We could ask about the possibility of translating.
Mr. Dusseault: Yes, please.
The Joint Chair (Senator Day): Monitoring to see if some translation suddenly appears seems pretty weak to me. Could we follow up on that as part of your follow-up here?
The Joint Chair (Mr. Albrecht): Mr. Chair, I would respectfully suggest that we also need to follow up on the cost. A $336 fee might be insignificant to a project that’s going to be millions or billions of dollars, but a $336 fee to get to a thing that’s going to improve your company by $500 wouldn’t be worth it. I think we need to somehow find a way to make a sliding scale or something that would ensure reasonableness, because reasonableness is currently subjective based on, “Oh, it’s not a big deal to me because I’m making $5 million every month,” but it may not be reasonable.
The Joint Chair (Senator Day): The committee says we could accept the government response, or we could question the department about any policy or guidelines it may follow for deciding that a purchaser’s price is reasonable. We’re following up on a number of other things. It wouldn’t hurt to follow up on that as well.
Ms. Becklumb: Sure.
The Joint Chair (Senator Day): Do you need any further direction?
Ms. Becklumb: Oh, there’s one more point on this file. The final issue is point 8 in the initial letter. It relates to subsection 31(1) of the regulations, the authority for which is questionable.
This provision requires the owner of a storage tank system for petroleum products to submit to the minister contact information for the owner and specify technical information about the storage tank. The department maintains that this provision is authorized, and it cites three specific enabling provisions in the Canadian Environmental Protection Act. Two of these provisions authorize regulations respecting any substance and the submission to the minister of information relating to a substance, but a storage tank is not a substance as defined in section 3 of the act. So it seems evident that neither of these powers authorize regulations relating to storage tanks.
The other provision that the department cited authorizes regulations respecting environmental emergencies, releases of substances and likely releases, including their prevention and preparedness for them. Can regulations that require storage tank owners to provide technical information to the minister be characterized as regulations respecting environmental emergencies and likely releases of substances, including their prevention?
Consider that the enabling act contains a much more specific power for regulating storage tanks. Paragraph 209(2)(o) authorizes regulations respecting the manner in which and the conditions under which a substance may be stored. This power wouldn’t be necessary if the environmental emergency power authorized the regulation of storage tanks. But the authority to regulate the storage of a substance does not also explicitly include the authority to regulate the submission to the minister of information relating to storage of substances.
Yet, we know from other examples in the enabling act that when Parliament wants to authorize regulations respecting the submission of information to the minister, it sets out that power explicitly.
So a few options are open to the joint committee. First, there’s an argument that the department did not make. There may be sufficient authority in the act for the provision in question if you look at a few enabling provisions together. There’s paragraph 209(2)(o) that authorizes regulations respecting the storage of a substance, plus paragraph 209(2)(r), which authorizes regulations respecting the submission to the minister of information relating to a substance. Perhaps together these two provisions authorize regulations respecting the submission to the minister of information relating to the storage of a substance.
Alternatively, the joint committee might note that amendments to the enabling act — that’s the Canadian Environmental Protection Act, 1999 — are in the works, although the department has indicated they will not be made during this Parliament.
Nevertheless, the committee is waiting for three amendments to that act on other files. The committee might ask the department whether it could add to the bill it’s preparing an amendment to explicitly provide authority for regulations respecting the submission to the minister of information relating to the storage of a substance.
The Joint Chair (Senator Day): Do we agree that we could add that to the list of things we feel are outstanding with the minister? All in agreement? Then that action is approved.
Anything further on environmental protection?
Ms. Becklumb: That’s done.
The Joint Chair (Senator Day): For today, good. Thank you.
We will go on, then, to Item 8 under the heading “Part Action Taken.”
SOR/2011-83 — REGULATIONS AMENDING THE LICENSED DEALERS FOR CONTROLLED DRUGS AND NARCOTICS FEES REGULATIONS (1056)
(For text of documents, see Appendix H, p. 47H:1.)
Ms. Kirkby: In 2016, three issues were raised with respect to these regulations. The first issue was that the regulations still did not include the defined term “dealer’s licence,” and that the regulations were still using defined terms that had already been repealed. This was corrected in 2018.
The other issues raised concerned one provision that did not seem to have had the intended effect, and one that bestowed unnecessary administrative discretion. Health Canada did not reply to additional questions on these issues, but indicated that it would probably replace this regulation made to apply the Financial Administration Act through an order made under new section 30.61 of the Food and Drugs Act.
In February 2018, the department indicated that it would examine its regulations on the prices to be paid in the following year, and that the matters raised by the committee would be at the core of that examination.
So, if members agree, your counsel may follow up to ask if that review is over and what the department intends to do, either with these regulations or the order that replaced them, given the issues that remain to be settled.
The Joint Chair (Senator Day): Are we in agreement with this recommendation by counsel? Okay.
We look forward to hearing from you in due course on that one.
Next is Item 9.
SOR/2012-135 — REGULATIONS AMENDING THE SULPHUR IN DIESEL FUEL REGULATIONS
(For text of documents, see Appendix I, p. 47I:1.)
Ms. Becklumb: The regulations presented earlier at Item No. 7 of the agenda amended the Sulphur in Diesel Fuel Regulations, and resolved all the issues that were pending in this file, save one.
The last remaining point concerns schedule 2 of the regulations, where the department did not repeal the “any other issue” category for imports or the production of diesel fuel. The department provided an answer — set out in the note — explaining why this category should be kept.
If the committee is satisfied with the explanation, the file may be closed.
The Joint Chair (Senator Day): Are we in agreement that the file should be closed? Agreed. Thank you.
Item No. 10
FEE SCHEDULE: FEES TO BE PAID FOR MARINE NAVIGATION SERVICES PROVIDED BY THE CANADIAN COAST GUARD (U2012-1)
AMENDMENTS TO THE FEE SCHEDULE: FEES TO BE PAID FOR MARINE NAVIGATION SERVICES PROVIDED BY THE CANADIAN COAST GUARD (U2012-4)
(For text of documents, see Appendix J, p. 47J:1.)
Ms. Becklumb: This is the fee schedule for marine navigation services. Ten issues were raised in relation to two sets of amendments that the Department of Fisheries and Oceans made to the fee schedule in 2012. One explanation appears to be satisfactory. This issue relates to section 14, and it’s set out in your note.
To resolve the other nine issues that were raised, the Department of Fisheries and Oceans anticipated making amendments to the fee schedule by January 2019. We’re at the end of February now, and we haven’t seen those amendments yet, so it’s suggested that counsel follow up with the department for an update on the status of those amendments.
The Joint Chair (Senator Day): Agreed?
They’ve agreed to do it. It’s just a matter of getting them to do it now.
SOR/2018-123 — ORDER 2018-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST
(For text of documents, see Appendix K, p. 47K:1.)
Ms. Pilon: Substance 896465-69-3 seemed to have been deleted from the Non-Domestic Substances List, contrary to the provisions of the Canadian Environmental Protection Act (1999). However, the department stated that this substance had been added to Part 3 of the Domestic Substances List using a confidential accession number, as the notifier claimed it was confidential information. Therefore, while it cannot be recognized by its original identification number, the department satisfied the conditions of the act, and if the members of the committee are in agreement, this file can be closed.
Mr. Simms: Pardon me if I get this wrong, but confidential business reasons is part of a different schedule; is that correct?
Ms. Pilon: There is a section in the Canadian Environmental Protection Act stating that the substance can be declared confidential by the informant. This is how it was registered, for that reason.
Mr. Simms: The Environmental Protection Act of 1999. Okay, I’m fine with that.
The Joint Chair (Senator Day): We’re content to follow counsel’s suggestion here that this is satisfactory? Very well.
Item No. 12.
SOR/2012-160 — GENERAL EXPORT PERMIT NO. 45 — CRYPTOGRAPHY FOR THE DEVELOPMENT OR PRODUCTION OF A PRODUCT
(For text of documents, see Appendix L, p. 47L:1.)
Ms. Pilon: These regulations were last submitted on October 20, 2018. The promised corrections were raised by counsel in January 2016 and concern two minor issues with the wording.
In November 2017, the Department of Global Affairs stated that these corrections would be made in the beginning of 2018. Since they were not done, the department has now extended the timeline by over a year, to early 2019. To date the corrections have still not been made.
Counsel could write to the department to inquire about progress on the corrections and mention that the committee expects the corrections to be made by the end of spring 2019, or by a specific date selected by the members of the committee.
Mr. Miller: I would add to the recommendation that it be a sternly written letter, not a request.
The Joint Chair (Senator Day): Do you have specific dates?
Mr. Miller: I’d go along with May 1. That basically gives them two months.
The Joint Chair (Senator Day): They promised to do it so many other times.
Mr. Simms: Yes, exactly. I’m okay with either May 1 or June 1.
The Joint Chair (Mr. Albrecht): And add “2019.”
The Joint Chair (Senator Day): The letter will indicate that this is a colossal waste of this committee’s time. They keep promising and not producing. Thank you.
Mr. Simms: Is one of the reasons because of the annual update to the Export Control List? Is this taking so long because it has to be done in a certain period of time on an annual basis?
Ms. Pilon: The department said that the corrections to the regulations would be part of a series of updates, which explains the delay, in their opinion.
Mr. Simms: I don’t want to suggest a timeline where they have to update that list, because this is part of an international obligation, if I’m not mistaken.
The Joint Chair (Mr. Albrecht): Earlier, they said they were expecting it in early 2018. They’ve been promising it would happen, and it hasn’t happened for multiple reasons.
The Joint Chair (Senator Day): I think their action without explanation is very disrespectful.
Mr. Simms: That’s what I’m trying to get at here, but I’m trying to seek an understanding. They haven’t conveyed that — or have they — in their response? They write, “. . . will be addressed in the package of annual updates to the Export Control List.”
Ms. Pilon: The department informed us that the drafting would not be finished because the regulatory drafting had to be tabled at the Department of Justice before mid-September 2018, and that is why the corrections had been postponed until 2019.
The Joint Chair (Senator Day): Thank you for that. We’ll follow the earlier direction of May 1. We’ll look forward to action from them on that.
Item No. 13.
FEE SCHEDULE FOR ICEBREAKING SERVICES (1998) (U1998-3)
AMENDMENTS TO THE FEE SCHEDULE: FEES TO BE PAID FOR ICEBREAKING SERVICES PROVIDED BY THE CANADIAN COAST GUARD (U2012-3)
(For text of documents, see Appendix M, p. 47M:1.)
Ms. Becklumb: Item 13 is the fee schedule for icebreaking services. This file is under the heading “Action Promised” on our agenda because we’re expecting amendments to address all five outstanding issues in early 2019. We haven’t seen these amendments yet, so it’s suggested we follow up with Fisheries and Oceans Canada for a better idea of what “early 2019” means.
The Joint Chair (Senator Day): It is early. It would be good, though, to keep it on your chart on your desk. So you will follow up on that, as suggested?
Ms. Becklumb: Yes.
SI/2018-39 — ORDER FIXING JANUARY 15, 2019 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SI/2018-45 — ORDER FIXING NOVEMBER 5, 2018 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE TWO ACTS COME INTO FORCE
SI/2018-46 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SI/2018-47 — ORDER FIXING JULY 31, 2018 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SI/2018-50 — ORDER FIXING JUNE 27, 2018 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SI/2018-51 — ORDER DESIGNATING THE MINISTER OF HEALTH, AS THE MINISTER FOR THE PURPOSES OF THE ACT
SI/2018-52 — ORDER FIXING OCTOBER 17, 2018 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SOR/2017-225 — REGULATIONS AMENDING THE OLD AGE SECURITY REGULATIONS
SOR/2017-237 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986
SOR/2017-254 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT
SOR/2017-255 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT
SOR/2017-256 — ORDER AMENDING PART II OF SCHEDULE VI TO THE FINANCIAL ADMINISTRATION ACT
SOR/2017-257 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT
SOR/2017-258 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT
SOR/2017-272 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS
SOR/2017-275 — ORDER AMENDING SCHEDULE I TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (123I-IOFLUPANE)
SOR/2017-276 — REGULATIONS AMENDING THE NARCOTIC CONTROL REGULATIONS (123I-IOFLUPANE)
SOR/2017-277 — ORDER AMENDING SCHEDULES I AND VI TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (U-47700)
SOR/2017-278 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS AND THE PRECURSOR CONTROL REGULATIONS (U-47700)
SOR/2017-280 — ORDER 2017-87-10-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2017-281 — ORDER 2017-66-10-01 AMENDING THE DOMESTIC SUBSTANCES LIST
The Joint Chair (Senator Day): The other items on our agenda, for those members who are new to this committee, are “Statutory Instruments Without Comment.” They are statutory instruments reviewed by our counsel but that did not require any action to be brought before this committee. It is an indication of how much work counsel is doing, and we very much appreciate it.
Ms. Kirkby: I’ll just mention that there are 21 instruments listed under that heading. If members wish to consult any of them, we have brought copies with us.
The Joint Chair (Senator Day): That consultation would take place after the meeting.
Mr. Simms: As I am new, I have a quick request. I talked about it before the gavel was lowered, but maybe I’m not allowed to ask this. I don’t know. I’m not trying to presuppose anything.
We get these in the mail in paper form, always, and I was wondering if we can just check a box where it’s one language only, so I can cut this down by half. It’s nothing against the French language, obviously, but I’m reading this in English, and if someone else wants to get this in French only, do we have that option? It’s getting a bit thick.
Ms. Kirkby: I don’t know a way to do that easily. The printing is done by the Senate printers, and my understanding is that it gets sent to the clerk’s office, and it gets distributed from there. It comes already in that package.
François Michaud, Joint Clerk of the Committee: If I may add, Mr. Chair, it is the usual practice that we send everything to all members in both official languages. That’s the practice in all committees, as far as I’m aware.
Mr. Simms: I’m aware of that. I’m just wondering if there’s a mechanism by which we can request one. Okay, there isn’t one.
The Joint Chair (Senator Day): Have your staff go through and take out the ones you don’t want.
Mr. Simms: It still defeats the purpose of saving the environment, though, doesn’t it?
Mr. Miller: The practice is to do exactly what the gentleman just said. However, I know from experience on a lot of committees that I’ve been on, in order to save paper, many committees make it clear that each member of the committee gives their choice of which language they prefer it in — or both — and it’s easily done. It’s not impossible. As Scott says, it’s a waste of paper to send it in French to me, and I’m sure there are some MPs for whom it makes no sense to send them the English version. So it’s doable.
The Joint Clerk (François Michaud): We’ll look at the options and report back to you.
Mr. Simms: As a second option, if you cannot do that, can I just say no to the printed material? If you’re going to send me a PDF, I can print my own, in which case I get half of this. Can I have the option of saying no to the printed material?
The Joint Chair (Senator Day): We’ll add that to our investigation and let you know.
(The committee adjourned.)