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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue No. 53 - Evidence - June 13, 2019

OTTAWA, Thursday, June 13, 2019

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of Statutory Instruments.

Mr. Harold Albrecht (Joint Chair) in the chair.


The Joint Chair (Mr. Albrecht): Looking at the agenda, we’re hopeful that we’ll move quickly. With your good cooperation and advanced preparation, we should.



(For text of documents, see Appendix A, p. 53A:1.)

Geneviève Pilon, Counsel to the Committee: This file deals with the question of whether the regulations were adopted in accordance with the procedure prescribed by the Canada Post Corporation Act. First, it is worth mentioning that section 20 of the act specifies the procedure for the adoption and approval of regulations. Specifically, subsection 20(5) of the act provides that the Governor-in-Council’s approval of the regulations is deemed to have been granted 60 days after receipt by the Clerk of the Privy Council if, in the meantime, the Governor-in-Council has not given or refused their approval. This presumption indicates Parliament’s will to ensure that the process of adopting regulations is expeditious and does not lead to an accumulation of delays between the pre-publication of draft regulations and their adoption.

However, this appears to have happened in this case, since the time between the proposed regulations being made by Canada Post Corporation and approval by the Governor-in-Council was 107 days. Indeed, the delay accumulated between the stages of the adoption of the regulations provided for in section 20 of the act was caused by two particular circumstances.

First, Canada Post Corporation caused an 88-day delay between the pre-publication of the proposed regulations and their submission to the minister’s office. The act does not provide for an explicit requirement for Canada Post to make draft regulations promptly after their pre-publication or to submit them to the minister as soon as they are made. However, subsection 3 of section 20 specifies the minister’s obligation to submit proposed regulations to the Governor-in-Council forthwith if they are made by Canada Post within 60 days of their publication. Consequently, the minister may not be able to comply with the act if the corporation is late in sending her draft regulations. In fact, this is what happened in this case, since the proposed regulations were sent to the minister 88 days after their pre‑publication.

Secondly, there was a 55-day period between the submission of the draft regulations by Canada Post Corporation to the minister and their receipt by the Privy Council Office. Therefore, it is worth considering whether, after receiving the draft regulations, the minister fulfilled her obligation to submit the proposed regulations forthwith for consideration by the Governor-in-Council, when a period of 55 days elapsed before they were sent.

Finally, another problem must be raised. Subsection 20(4) provides that the Clerk of the Privy Council has an obligation to notify Canada Post Corporation as soon as he receives a draft regulation for approval. In this case, the acknowledgement of receipt was sent by the Clerk of the Privy Council 24 days after receipt of the proposed regulations. This delay again raises the question of whether the obligations prescribed by law were met. If the members agree, counsel can send a letter to the various stakeholders reminding them of the obligations that must be met under the act during the regulation adoption process.


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

Mr. Simms: Would it be safe to say that everybody is slow to the game? That was a quick question, wasn’t it?

Some of this is particularly great. It’s quite a bit. September 19, the corporation submits to the Minister of Public Services and Procurement; November 13, the Privy Council Office receives the proposed regulations. We’re trying to figure out why that is the case.


Ms. Pilon: We want to understand the delays, but above all, we must ensure that the various actors, whether Canada Post Corporation, the minister or the Clerk of the Privy Council, are aware of the law and respect the deadlines under the law. The act mentions the minister’s obligation to transmit the draft regulations “forthwith.” This is nevertheless quite subjective, and that is why we want to remind stakeholders of this obligation, given that there is not necessarily a specific time limit and that we are talking about things being done “forthwith.”


Mr. Simms: And the people we are talking about here would be almost everyone in the chain?


Ms. Pilon: Precisely.


Mr. Simms: We’re talking about the clerk, the minister and even in the corporation’s case, it seems like they’re not complying either.


Ms. Pilon: There is no explicit statutory obligation for the Canada Post Corporation, but there is an implied obligation that the minister must respect the need to send the proposed regulations forthwith, as soon as they are made within 60 days. So, implicitly, this obligation also applies to Canada Post.


Mr. Simms: We’re advising to send a letter stating the entire situation is not very good —


Ms. Pilon: Exactly.


Mr. Simms: — and please fix this or we’ll send another letter.

All right. Thank you.

The Joint Chair (Mr. Albrecht): For clarification, I think the intent is the letter would go to the minister, the department and to the Clerk of the Privy Council so that they’re all aware of it.

Mr. Simms: My apologies, sir. I wasn’t trying to be facetious. All elements of the entire chain, yes.


Thank you very much.


Senator Duncan: I have one question. There are no sanctions or any requirement elsewhere in the act if the provisions of the act are not followed. For example, the regulation is null and void; if not, there’s nothing.

I see the counsel shaking her head.


Ms. Pilon: As I explained, subsection 20(5) establishes a presumption that the proposed regulations will be adopted within 60 days of receipt of the proposed regulations by the Clerk of the Privy Council.

Mr. El-Khoury: Following their receipt or after publication?

Ms. Pilon: Following their receipt.

Mr. Dusseault: I had the impression that in the expression “forthwith”, the 60 days were also included. So, in that case, if they were sent in 55 days, that would respect the 60-day period.

Ms. Pilon: Indeed, it is forthwith after the 60 days. In the present case, it is forthwith following the 60 days of pre‑publication. Following pre-publication, Canada Post sent the draft regulations 88 days after they were published, so it is questionable whether what was requested — the obligation under the law — was met, but the expression “forthwith” remains one of the key factors in this case.

Mr. Dusseault: With regard to the expression “forthwith”, did the committee express an opinion on its use in the past? This is rather common in laws and regulations.


Cynthia Kirkby, Acting General Counsel to the Committee: It is fairly common and part of the reason why the committee issued the report on vague and subjective language. What does it mean? I would suggest the English term “forthwith” does not mean 55 days under the circumstances.

The Joint Chair (Mr. Albrecht): The word “forthwith” is in the act, so we can’t change that.

Ms. Kirkby: It’s a common term that is used, and the committee has recognized that it is vague and subjective and open to interpretation, which is part of the problem. It seems doubtful that if Canada Post had turned its mind to the meaning of forthwith this would have been the outcome.


Mr. Dusseault: Thank you.


Mr. Scarpaleggia: I think my question has already been asked.


Mr. El-Khoury: Did you say 60 days after receipt or after publication?

Ms. Pilon: The 60-day period provided for in subsection 20(5) begins 60 days after receipt by the Clerk at the Privy Council Office. So that’s really when there’s a presumption. If the 60-day period has elapsed without a decision being made, then the regulation could be adopted. However, in this case, the 60-day time limit was met with respect to subsection 5 of section 20. We are speaking rather of the other section 20 subsections, i.e. subsections 3 and 4, where the obligation is associated with the expression “forthwith.”

Mr. El-Khoury: Do we have an explanation as to the approximate interval between publication and receipt?

Ms. Pilon: Between publication and receipt? In this case, between pre-publication and adoption, there was a 107-day delay. The calculation between the pre-publication date of June 23, 2018 and the receipt date of November 13, 2018 should be made to determine the time frame. However, between the receipt by the Privy Council Office and the passage of the bill, the time period met the requirements of the legislation.

Mr. El-Khoury: As Mr. Simms said, the committee must send a letter to determine whether Canada Post Corporation followed the regulatory procedure, given the time frames.


The Joint Chair (Mr. Albrecht): I think we go one step further and point out that it was not respected and we ask them to please respect it in the future. I think that’s the point Mr. Simms was making. These three deadlines were not met and they need to be met in the future.

Mr. El-Khoury: And why it was not respected.

The Joint Chair (Mr. Albrecht): That’s the question. We can only speculate as to why. It seems like inattention.

Does everyone agree with the suggestion to send this letter to all three — the department, the minister and to the Privy Council — pointing out the unacceptability of this delay?

All in favour? Opposed? Carried.

We will move on to Item No. 2 on our agenda.


(For text of documents, see Appendix B, p. 53B:1.)

Penny Becklumb, Counsel to the Committee: These regulations set out safety glass requirements for glass doors and enclosures, such as the glass enclosure around a shower or bathtub. The department has responded to the two issues that were raised.

First is an issue stemming from the incorporation by reference of two standards in the regulations. Unlike many other files, in this case the standards are available in both official languages. On this file, the issue is that the two standards are not available free of charge. The department estimates that one standard costs about $60 and the other standard costs about $210 to acquire.

The committee may consider whether, despite these costs, the standards are accessible as required by the Statutory Instruments Act.

In considering this, I can remind members of the joint committee’s conclusion on the issue of having to pay to access incorporated documents from the recent Report No. 90. The joint committee wrote:

While the incorporation by reference of external materials that bear a cost might not be completely avoidable, the Joint Committee is of the view that more could be done to ensure that this practice becomes a solution of last resort for governmental organizations. Further, when it takes place, departments must take formal steps in order to make the materials available.

The joint committee has a couple of options for dealing with this issue. It may decide that the $60 and $210 costs are reasonable to access the safety glass standards and on that basis deem the standards to be accessible. Or, it may wish to question the department further about the possible options it can pursue for making the standards available free of charge.

Do you want to talk about that or deal with the second issue as well?

The Joint Chair (Mr. Albrecht): Let’s deal with both of them and then we’ll come back.

Ms. Becklumb: The second issue relates to the drafting of a provision that was questioned because it suggests that a crack in laminated glass is not a defect. The department has confirmed that that is correct. For laminated glass subjected to the boiling water test, a crack is not a defect. A defect would be a bubble or delamination between layers of glass and plastic that are in the sheet of safety glass.

The department provides more details about the testing of safety glass in its letter of January 25, 2018. If the joint committee is satisfied with this response, then the second issue may be resolved.

The Joint Chair (Mr. Albrecht): This is particularly significant for us politicians who live in glass houses, so we may want to pay it more attention than normal.

Does anyone want to comment on the costs of $210 and $60?

Mr. Scarpaleggia: I’m trying to understand what these standards are used for. Who accesses these standards? Is it manufacturers? Is it individuals going to the hardware store? I’m not clear how these standards are used or applied.

Ms. Becklumb: I don’t know that I’m qualified to answer that. I can only speculate that it’s persons who are making glass and who are responsible for creating safety glass.

Mr. Scarpaleggia: And you said, if I recall, accessing the standard costs $60?

Ms. Becklumb: There are two standards. One is $60 and one is $210.

Mr. Scarpaleggia: One would imagine that those referencing the standards are sizeable companies.

The Joint Chair (Mr. Albrecht): They are sizeable?

Mr. Scarpaleggia: Are sizeable.

The Joint Chair (Mr. Albrecht): And fewer in number, I would think.

Mr. Scarpaleggia: Yes. I don’t think this is a cottage industry, really. So $60 doesn’t appear to me to be an obstacle to referencing or using the standard.

The Joint Chair (Mr. Albrecht): We can ask, if we request that information, what is the frequency with which these are accessed? Is it 10 times a year or 1,000 times a year that those things would impact?


Mr. Dusseault: I understand my colleague’s concern about the question of who is the real user of these standards. I think that, in general, we should always advocate that these texts should be accessible free of charge. I believe in one report it was said that we should provide the best possible access.

So, as a last resort, perhaps there could be a cost associated with a document incorporated by reference, but in general, it should be free. I think we have to take the position today that the $60 and $210 amounts, particularly the $210, are excessive, and that in our opinion, this is not considered accessible. Regardless of who is subject to regulation and who accesses the document, I believe we must maintain this principle, without having to determine who accesses these documents and how often they do so.


Mr. Benzen: Personally, I think both of the questions have been resolved. On the issue of the cracking, they’ve given us a satisfactory answer. That one is resolved.

In terms of costs, I think it’s probably businesses that are accessing this. This is just a cost of business. If you’re manufacturing glass or these bathroom enclosures, you always have the costs of business. I know that in our business, if we wanted to get a copy of the fire code for Alberta, we would have to spend $400 to buy the book. There is an enormous amount of cost involved.

I think these costs are reasonable. They’re certainly accessible. They’ve met that requirement. Potentially, in this day and age, with everything digital and on cloud servers, at some point in the future this may be put on to a cloud server where you have access to it. The cost could be lowered perhaps to free in the future. However, at this point, I think they’re not meeting the requirements they had to meet.

In my mind, this file should be closed.

The Joint Chair (Mr. Albrecht): Two different opinions there. We’ll have to make a decision.

Mr. Simms: Are these fees on a cost-recovery basis? How are these fees set?

Ms. Becklumb: I believe a private company sells them.

Mr. Simms: They sell and we regulate?

Ms. Becklumb: The government has incorporated by reference standards that are available for sale by a company.

Mr. Simms: And it’s not just cost recovery; it’s obviously cost recovery plus their own profit for what they do.

Ms. Becklumb: It’s the company’s decision how much they want to charge for their standards.

The Joint Chair (Mr. Albrecht): Could we find a compromise here in saying that we urge them to work toward zero cost in the immediate future, as possible, but that we recognize in the interim that some cost recovery may be needed?

Mr. Simms: Further to that, in Bob’s case, he’s saying it’s not just cost recovery but cost recovery profit. This is a business that operates on the basis that they make money based on these fees, and we’re about to reduce that. So how do these people get compensation if we say it goes to zero?

Ms. Becklumb: We could ask the department if they could explore different options. Maybe the department could purchase copyright from them and make it available for everyone. Maybe they could purchase a limited number of copies and make them available in read-only access. Maybe they could look to see if there are alternative standards available free of charge. Could they develop their own standards?


Mr. Dusseault: I was just going to say that there are many options that could be explored and that our suggestion could be to purchase the document to make it available to the public. Purchasing publication rights may mean incurring significant costs; however, when we leave open the possibility that consulting a document costs $210, there is no guarantee that, in three days, the cost will not have risen to $850. There is nothing to prevent this private company from deciding to sell its document for more the following week.


Mr. Badawey: I agree this is cost recovery. This is a business that’s in business to make money, and if we get involved, then it’s simply going to default to the taxpayers.

So we have a choice. We either let the company carry on — so I would agree with Mr. Benzen that’s what we do, and I would put that recommendation forward — and/or the taxpayer is going to be burdened with the cost. Be careful what you wish for, because that cost may rise.

Mr. Shields: I agree.


Senator Mégie: I thought these were government standards that companies used to prepare or sell their windows. I had no idea that the client would have to pay for access to these standards. If they are government standards, should they not be available to the industry that manufactures them? If it is left to industry to deal with it, it could decide that its windows are superior to others and that it has the right to change the standards. Can industry do that? I don’t know, I’m not in business or industry. I thought these were government standards that industries had to meet, and that you could go to the government website to consult them. So when I saw the $60 and $210 amounts, I wondered.


Mr. Shields: For the industries out there, there’s a litany of government regulations, and there’s also a litany of businesses in the business of producing regulations for companies that want to buy them. This is an industry out there, and it’s very large because businesses have a lot of regulations they have to deal with. Companies produce these for them and sell them for them.

This is not just a one-off; there are thousands of these types of productions. I’m familiar with the oil patch, and I’ve seen rooms full of businesses that have basically a printing office to produce books for companies that need to implement government regulations.

There’s an industry out there, so we have to be careful here.

The Joint Chair (Mr. Albrecht): Thank you. That’s a point that I, for one, was not aware of. I assumed, as Senator Mégie did, that these were available through government offices.


Mr. El-Khoury: I agree with the opinion of our legal counsel: We should ask the department to find a solution to provide free access to the documents and content of the reference documents.


The Joint Chair (Mr. Albrecht): We have polar opposites here. We’re going to have to make a decision as a committee.

The information that these are provided through small businesses at a cost-recovery-plus-profit basis certainly adds a whole new layer to the complexity of the issue. It’s one that I was not aware of until today, I’ll be honest.

We need to move forward on this.

Mr. Benzen: The question is not for us to decide. Whether they are free, $400 or $75, that’s not our decision. Our decision is whether they are accessible, and they are. In that sense, this file should be closed.

In the future, perhaps they’ll convert them to a digital format that people can download, and maybe the access will be a $5 fee. That’s something for the future.

Our question today, right now, is the following: Do we leave the file open and say the reply wasn’t satisfactory, or do we say it’s satisfactory and close it? I say we close it and move on.

The Joint Chair (Mr. Albrecht): Mr. Benzen, I agree with you on the one-off, but as our counsel pointed out earlier, the problem is that we all agreed to Report No. 90, was it, or the report in which we said they should be available at no cost?

Ms. Becklumb: The committee did not conclude that they always had to be available at no cost. It said that materials that bear cost might not be completely avoidable; so sometimes it might be necessary but that more could be done.

The Joint Chair (Mr. Albrecht): We have a motion to close the file as it is.

Mr. Badawey: We actually have two motions.

The Joint Chair (Mr. Albrecht): We’ll double the motion; two for one.

All agreed that we should move forward and close this file?

Senator Duncan: Sorry, Mr. Chair, but could I make a request that we get some information from staff for the future? We don’t know about the small business aspect of it or whether it’s a department. Who is charging or profiting from this $210 or $60? Is that the difference between the French and English? I would hate to think that.

I agree with the sense of moving on because we’ve dealt with this, but I would also like to bring it forward —

The Joint Chair (Mr. Albrecht): In the future, a more in‑depth study as to how.

Senator Duncan: Where is the money coming from and where is it going? We know business is paying for it, but who are they paying?

The Joint Chair (Mr. Albrecht): Is that something our committee could delve into?

Ms. Becklumb: We can certainly send a letter to the department asking for more information before making a decision.

The Joint Chair (Mr. Albrecht): Are all agreed that we close the file but ask them for more clarification as to who is actually receiving these funds? Also, is it for cost recovery or is it for profit, as many of our committee members are asking?

We’ll bring it back to the committee in the future, after the election.

All agreed to close the file, that the documents are accessible and that the glass standards are understood? So ordered.

Next is Item No. 3


(For text of documents, see Appendix C, p. 53C:1.)

Ms. Becklumb: This file is one of 17 that the joint committee has opened relating to the Canadian Aviation Regulations, or CARs. When these 17 files are taken together, over 250 points have been raised and numerous amendments have already been made.

Counsel meets with Transport Canada officials twice a year to monitor progress on the 17 CARs files. The latest meeting took place two weeks ago, on May 30.

On the CARs file before the joint committee today, a total of 28 points were raised in 2011. The department has agreed to make amendments to address 27 of the points. The note in your materials provides a summary of the status of these 27 points. Since the note was written, it appears that Miscellaneous Amendments Regulations published last month have resolved seven more points. There’s only one point for which the department hasn’t promised an amendment, and that is the issue on which I’m seeking the joint committee’s instructions today. It relates to section 521.106 of CARs.

This section deals with design approvals for aircraft appliances and parts. In general, under this section, in order for an appliance or part to be approved, it has to meet the minimum performance standards set out in the relevant CAN-TSO, that is, a Canadian Technical Standard Order. In the case where there is no relevant CAN-TSO for the design approval of an appliance or part, paragraph (b) of section 521.106 empowers the Minister of Transport to create a new CAN-TSO.

Because a CAN-TSO becomes part of the law once it’s made, the section’s empowering of the minister to create a new CAN‑TSO is a subdelegation of legislative authority to the minister. The issue is whether the subdelegation is allowed.

In many cases, subdelegation is problematic because it’s not authorized by the enabling act, but in respect of CARs, subdelegation is actually allowed by the Aeronautics Act. Section 4.3(2) of that act authorizes the Governor-in-Council to make a regulation that, in turn, authorizes the minister to make orders with respect to any matter that the Governor-in-Council could have regulated directly.

The relevant words in the Aeronautics Act are that the regulations may authorize the minister “to make orders.” This means that the regulations cannot subdelegate to the minister the power to create an administrative document, such as a CAN‑TSO, and have it automatically become law. The regulations can only subdelegate to the minister the power to set out law by way of an order.

This requirement is not just a matter of form. When the minister makes a CAN-TSO, he is creating a new law. This has to be done using a legal instrument — in this case an order —that is examined, registered and published under the Statutory Instruments Act before it becomes law. In contrast, paragraph 521.106(b) purports to authorize the minister to simply create a CAN-TSO, which is an administrative document, and have it automatically become law.

This issue was raised by the department. In its most recent response, dated May 2, 2018, the department argues that a CAN‑TSO made under paragraph 521.106(b) is not intended to be an order. Rather, it’s a document developed by Transport Canada and incorporated by reference into CARs. While it’s suggested that the department’s argument is flawed, as you know, incorporation by reference means that the regulator takes someone else’s document and makes it part of the law by referring to it in the law, or the regulations in this case.

But that’s not what’s happening here. Here, the regulator is empowering the minister to create a new document — in this case a CAN-TSO — in the future and have it become part of the law just by virtue of it having been created. That’s not incorporation by reference because you cannot incorporate by reference a document that hasn’t been created yet at the time the regulations are made. In such a case, there is not yet a document that you can reference.

What’s happening in section 521.106 is a subdelegation of legislative authority to the minister. It’s giving the minister the power to decide what the law will be in the future, and subdelegation is only allowed if the minister exercises that power to make law by issuing an order. It’s proposed that a letter be drafted explaining this distinction to the department and seeking the department’s agreement to amend section 521.106.

The Joint Chair (Mr. Albrecht): There’s general agreement. It was technical, but very clear.

All in favour of that?

Mr. Badawey: I have one question, chair.

When you get to 521.106(b), incorporation by reference, you’re stating that there’s nothing to reference. Is there nothing in between? Is it not going to anybody else, or is it planned to go to somebody else before it is actually intended to become a law?

Ms. Becklumb: Correct.

Section 521.106 performs two things. First, paragraph (a) says that the standards of airworthiness are the CAN-TSOs. Then paragraph (b) says if there is no relevant CAN-TSO, the minister can create one. That’s the problem, because it doesn’t exist yet. The minister will make the law in the future, so that’s not incorporation by reference.

Mr. Badawey: Great. Thank you.

Mr. Simms: Okay, but in other instances, notwithstanding the CAN-TSOs, you can do this by way of subdelegation, which I think was the word you used. You can proceed in that manner, except that with CAN-TSOs you cannot.

Ms. Becklumb: It’s not the distinction between a CAN-TSO and another document. The Aeronautics Act provides for subdelegation. You can subdelegate to the minister as long as the minister exercises that power by order.

Mr. Simms: In this case, the language we need here is to rectify so you can do it even if the CAN-TSO doesn’t exist.

Ms. Becklumb: Then the minister can create a new CAN‑TSO by order.

Mr. Simms: I agree. Thank you.

The Joint Chair (Mr. Albrecht): The action has suggested we agree to that, so we’re moving on to Item No. 4.



(For text of documents, see Appendix D, p. 53D:1.)

Ms. Kirkby: The only remaining issue in this case is that a few regulations administered by the Canadian Food Inspection Agency allow health and safety information to be provided in only one official language.

The committee expected that the amendments would be made in 2014 to require that information on labels appear in both official languages. There have been several delays, but the amendment to the Seeds Regulations was made in April 2018.

The pre-publication of the amendment to the Feeds Regulations, 1983, is expected this month, but has not yet taken place, and the amendment to the Fertilizers Regulations was pre‑published in December 2018.

So, if the members agree, counsel can follow up with the agency to obtain an update on these last two regulations.


The Joint Chair (Mr. Albrecht): They have eight days to do it by the end of spring 2019. Is the committee agreed? So ordered.

Next is Item No. 5, Natural Health Products Regulations.



(For text of documents, see Appendix E, p. 53E:1.)

Ms. Becklumb: This file was reviewed a year ago, in March 2018. Since then, substantial progress has been made. Thirteen issues were fully resolved and two were partially resolved through a miscellaneous regulatory amendment issued last year. Now, there are seven outstanding issues, in addition to the two issues that have only been partially resolved. In its last letter, the department indicated that amendments that would address these issues were to be pre-published this spring. As these amendments have not yet been published, it is suggested that counsel write a letter to the department asking it to provide an update on the resolution of these last issues.


The Joint Chair (Mr. Albrecht): Okay, and reminding them they have seven or eight days to complete their promised prepublication date. We are all agreed with that.

Next is Item No. 6 on our agenda.



(For text of documents, see Appendix F, p. 53F:1.)

Ms. Pilon: The last presentation of this file to the committee was on June 7, 2018. Since then, the department has made seven of the eight promised amendments through miscellaneous regulatory amendments. These amendments were intended to correct drafting errors and discrepancies between the English and French versions of the regulations.

The promised amendment that has not been made concerns three sections that refer to certain sections of the Navigation Protection Act that could be amended by Bill C-69 if passed. The department indicates that it is awaiting the adoption of this bill before making this last promised amendment.

If the members agree, counsel may continue to monitor the file and request updates from the department.


Mr. Simms: Pierre-Luc and I were just joking, what’s Bill C-69?

The Joint Chair (Mr. Albrecht): Just take a walk down Sparks Street.

Mr. Simms: Yes, of course.

Recent developments: Senate amendments were made, some of which were accepted and some not. Is that going to have an effect on this as well?


Ms. Pilon: The amendments have not yet been considered by counsel. Regardless of whether or not the amendments that were provided for in Bill C-69 are made to the specific sections regarding these regulations, at this time the law requires that the regulations be amended, regardless of whether the sections referred to are amended or not.


Mr. Simms: I won’t get into detail, but thank you.

The Joint Chair (Mr. Albrecht): Is there any other input? If I don’t see any other desire to speak to this matter, I’ll ask our counsel to monitor it until if and when — or not — Bill C-69 is passed. So ordered.

Next is Item No. 7.


(For text of documents, see Appendix G, p. 53G:1. )

Ms. Kirkby: Four issues were raised with the Department of Justice in the summer of 2017. One concerned a provision that appeared to have retroactive effect and it was resolved in less than four months.

Two issues concerned French-English discrepancies and both were resolved in December last year.

The final issue concerned what appeared to be another French-English discrepancy in the regulations, but it now appears that the language in the regulations simply reflects the language of the enabling act.

This being the case, members may be satisfied that no further amendments are required. If so, the file can be closed.

The Joint Chair (Mr. Albrecht): Agreed? So ordered.

Next is Item No. 8.


(For text of documents, see Appendix H, p. 53H:1.)

Ms. Kirkby: The initial letter on this file was written in January of 2016. The very next month, Transport Canada agreed to amend the regulations to address 11 points but did not provide a timeline for those amendments or details about how the issues raised would be addressed.

The joint committee sought more information, and it appears the amendments will be made as part of an initiative to modernize and enhance vessel inspection and certification regimes under the Canada Shipping Act, 2001.

In terms of timing, the department’s Forward Regulatory Plan indicates that stakeholder consultations were held in the fall of 2017 and spring of 2018, and prepublication is anticipated in early 2020.

Finally, members had also sought additional information on certain points that are to be addressed. First, it appears that the vague language in section 3(2) about additional surveys being required “as occasion arises” will be replaced with a provision that sets out the circumstances under which an inspection will occur.

Next, Transport Canada confirmed that the requirement in section 4(2) indeed applies only to cargo ships of 500 gross tonnage or more because only those ships are issued a Cargo Ship Safety Equipment Certificate.

Finally, paragraph 11(1)(a) appeared to serve no legal purpose and Transport Canada has confirmed it will be repealed.

In summary, it appears that a satisfactory explanation has been provided on the additional points the joint committee had inquired about, and all outstanding points are expected to be addressed in a larger never to be prepublished early next year. If members agree, counsel could follow up with Transport Canada to confirm that the initiative is still expected within that time frame.

The Joint Chair (Mr. Albrecht): Agreed? So ordered.

Next is Item No. 9 on our agenda.


(For text of documents, see Appendix I, p. 53I:1. )

Ms. Kirkby: There have been some recent developments on this file, so this will be slightly different from the note prepared for members.

It had been understood that there were four issues outstanding on this file, but it was determined in 2017 that one of those issues had, in fact, been resolved in 1998. That leaves three issues.

The next concerns what appears to be a discrepancy in section 22.2, in that subsection (1) referred to conduct that “is contrary” to certain conditions, while subsection (2) referred to conduct that “may contravene” certain conditions. The Canadian Transportation Agency explained that the different standards reflect the different times at which the subsections operate. Section 22.2(1) applies after an investigation establishes a contravention when it has been determined that the conduct “is contrary” to the conditions, while section 22.2(2) applies before the investigation is complete, when it is only known that the conduct “may contravene” the conditions.

It is suggested that this provides a satisfactory explanation. If members agree, then the same analysis would seem to apply to the same language in section 103.5 of the regulations as well.

That leaves two issues. The next is a discrepancy between the French versions of sections 22.2 and 103.5. The English expression “is contrary to any of the conditions” is rendered in the first instance as “ne satisfait pas aux conditions” and in the second instance as “est contraire aux conditions.”

The Canadian Transportation Agency agreed to address this and, in fact, amendments were published yesterday that appeared to resolve this issue. If members agree, counsel could confirm this is indeed the case, and if so, that point would be resolved as well.

The final issue concerns what appeared to be an inappropriate incorporation by reference of American law in section 103.1 of the regulations. The Canadian Transportation Agency had advised in December 2013 that this provision would be repealed, and it confirmed in April 2017 that this would be addressed in the context of the Regulatory Modernization Initiative. That appears to refer to the amendments that were published yesterday, but this particular amendment does not appear to have been included.

On this final point, counsel could follow up with the agency to see why this promised amendment was not included and when it is now expected to be made.

The Joint Chair (Mr. Albrecht): I see general agreement around the table. All agreed to follow that course of action? So ordered.

Item No. 10.



(For text of documents, see Appendix J, p. 53J:1.)

Ms. Pilon: The Canadian Grain Commission has agreed to make the suggested regulatory amendments through its 2019-20 forward regulatory plan. The amendments were promised to resolve four drafting issues to ensure consistency between the French and English versions of the regulations.

The commission confirmed that the promised amendments will be part of its forward regulatory plan, but it has not set a specific deadline for making these amendments. Therefore, if the members agree, counsel will continue to monitor the file and request periodic updates from the commission.


Mr. Simms: First of all, when I read this, I realized I didn’t know that. I did not know if I simply said the word “tonne,” it’s 2,000 pounds, whereas it is a “tonne métrique.” Is that something that applies not just here but a lot of places? I’m not francophone, but I know enough French and I did not realize that was the case, because I’ve never used “tonne métrique” before.


Ms. Pilon: Indeed, the French equivalent is “tonne métrique.”


Mr. Simms: This could be not just here but in other places.

Ms. Kirkby: It has been raised in other places.

Mr. Simms: Fantastic.

The Joint Chair (Mr. Albrecht): In Ontario, we pronounce it “tone” if it’s a metric tonne.

Mr. Simms: I didn’t know that either.

The Joint Chair (Mr. Albrecht): Sometimes.

Mr. Simms: I’m from Newfoundland. You people are a little strange.

Mr. Shields: That’s a common pronunciation in the ag sector. It’s not tonne. It’s “tone” when referring to an agricultural product.

Mr. Simms: A tonne of fish is a tonne of fish where I come from.

The Joint Chair (Mr. Albrecht): Are we agreed to proceed in that manner? We could take an additional step and ask them for a specific date, but if we’re comfortable having counsel simply monitor, I’m okay with that. I think that’s the will of the committee, that our counsel will monitor the date and the progress.

Next is Item No. 11.



(For text of documents, see Appendix K, p. 53K:1.)

Ms. Becklumb: One drafting issue was raised with respect to this file. The department has agreed that it would be useful to have a detailed review of these provisions, which it has committed to do next year before making the required amendments.

If the committee agrees, counsel could simply follow up with the department next year.


Mr. Simms: I’ve dealt with this issue in the past as President of the Canada-Europe Parliamentary Association, and I see the date there from 2017, the lifting of the restrictions for Romanian travel. Are we saying here that we should just dispense of this, or are we saying either/or?

Ms. Becklumb: It doesn’t affect the substance of it. It appears that the amendments they made seemed to impose the requirement to obtain an electronic travel authorization twice on these people. Do they really need two? They said no, the wording is maybe a little cumbersome and they only need one.

Mr. Simms: This is why I ask, because it was a contentious issue shortly after visa travel was lifted, and it had a lot to do with their temporary passport system. Is that what they’re getting at, or was it just overlooked? You’re calling into doubt those who were eligible before the restrictions were lifted.

Ms. Becklumb: The issue that was raised doesn’t go to any of that about the requirements. Rather, it’s a matter of drafting. The drafting appears to duplicate. They need to get an electronic travel authorization. It says it twice, which raises the question: Do they need to get two travel authorizations? It’s really about the drafting rather than the substantial requirements people are required to obtain.

Mr. Simms: That was my question. Thank you.

The Joint Chair (Mr. Albrecht): Again, within the next calendar year we can be more specific. They wrote the letter on March 21, 2019. Do we want to say we expect it to be dealt with by March 19, 2020, or do we leave it vague, in general, in the next calendar year?

I see no appetite for making it specific, so we’ll leave it.

Item No. 12.



(For text of documents, see Appendix L, p. 53L:1.)


(For text of documents, see Appendix M, p. 53M:1.)

Ms. Kirkby: Two issues were raised in each of these cases, in agenda Items No. 12 and 13, which concern the Contraventions Regulations. The first one concerned the short descriptions that did not exactly correspond to the offences described.

In the second case, there was only one offence that was designated as two separate contraventions, and one contravention that did not appear to end at the same time as the substantive provision.

Amendments to address all these issues were made in mid‑December 2018, so both files can be closed.


The Joint Chair (Mr. Albrecht): I see no objection. So ordered.

Item No. 14.


(For text of documents, see Appendix N, p. 53N:1.)

Ms. Kirkby: These regulations made six promised amendments on three different Department of Justice files. This included French-English discrepancies, vague and subjective language, and other drafting matters. As a result of the amendments, a total of three files can be closed.

The Joint Chair (Mr. Albrecht): All in agreement? So ordered.

Item No. 15.


(For text of documents, see Appendix O, p. 53O:1.)

Ms. Becklumb: This instrument repealed an order that had issues outstanding for 23 years. At the November 8, 2018 meeting, the committee had decided that if the order were not repealed by the end of January 2019, it would consider options, including disallowance. The order was subsequently repealed by the end of March 2019 and both files can now be closed.

The Joint Chair (Mr. Albrecht): Great. All in agreement with that? So ordered.

That brings us to the end of our agenda for today and for the year. I want to thank committee members for your cooperation. And I want to thank our counsel for their incredible, detailed work.

Hon. Members: Hear, hear!

The Joint Chair (Mr. Albrecht): I also want to thank our trustworthy helpers in the room today and every day who we often take for granted. All of you are a big part of our ability to carry on our work well.

Thank you to the person running our microphones and our interpreters. We thank all of you for your incredible work over the year.

I wish you all a great summer. Hopefully, we’ll see you all in the fall.

(The committee adjourned.)

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