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BILL C-45 - "JOBS AND GROWTH ACT, 2012" - PART 4

DIVISION 1 - financial institutions

Division 1, Part 4 introduces consequential, technical amendments to the Trust and Loan Companies Act, the Bank Act, and the Insurance Companies Act as a result of amendments already legislated through the Jobs, Growth and Long-Term Prosperity Act (C-38).

The Jobs, Growth and Long-term Prosperity Act (C-38) allowed limited investments in a financial institution by certain public sector investment pools. These investors must satisfy criteria, including pursuing commercial objectives, and are subject to the approval of the Minister of Finance.

As with current Ministerial approvals, investments must be in the best interests of the financial sector and are subject to a national security test.

The amendments in Division 1 are consequential to the initial provisions in C-38, implementing technical and coordinating changes to support the previously legislated policy.

DIVISION 2 - SHIPPING

The Canada Shipping Act, 2001 is the principal legislation that governs safety and protection of the environment in marine transportation and recreational boating.  It applies to Canadian vessels in all waters and all vessels in Canadian waters and with respect to protection of the environment, extends to the limits of Canada’s Exclusive Economic Zone.  The objectives of the Canada Shipping Act, 2001 includes the harmonization of marine practices and ensuring Canada can meet its international obligations with respect to navigation and shipping.

Under the Canada Shipping Act, 2001, Transport Canada administers a vessel certification regime to provide vessel owners with the certification required for commercial operation and a vessel inspection regime to verify whether vessels and their crews are in compliance with the appropriate regulations.

In an effort to further increase safety and environmental responsibility in the Canadian marine industry, harmonize with international marine practices, and create a more efficient vessel inspection and certification regime for stakeholders, Transport Canada is implementing an alternate service delivery plan for the certification of Canadian vessels of 24 metres in length or more.  Under this plan,  vessels of 24 metres or more will be directed to third parties authorized to inspect and certify those vessels for commercial operation. This certification process is standardized internationally through the International Maritime Organization (IMO)  Currently one-third of affected vessels voluntarily obtain their certificates from authorized third parties.  Transport Canada will continue to carry out vessel inspections for the purpose of regulatory compliance.

Certification inspections performed under the authority of section 12 confirm that on a particular date, a vessel met the requirements of Canadian law and is thus permitted to engage in commercial operation. Compliance inspections are conducted separately from certification inspections, are targeted toward vessels and operations at highest risk, and are an effective mechanism for ensuring compliance at other times.

The Canada Shipping Act, 2001 provides authority to the Minister to implement the alternate service delivery plan.  Section 12 provides for the Minister of Transport to authorize third parties to issue Canadian maritime documents (including vessel certificates) and to conduct certification inspections on behalf of the Minister.  However, alternate service delivery also depends on the application of Canadian regulations by international organizations and therefore, requires that the Canadian regulatory structure reflects the structure of the rules established by the international maritime community under the International Convention for the Safety of Life at Sea and the International Convention for the Prevention of Pollution from Ships.  Also, the plan depends on authorized third parties being able to establish their own fee structure according to contractual arrangements with clients.

This Part amends the Canada Shipping Act, 2001 to permit the incorporation by reference into regulations of a Canadian Supplement (produced by the Minister of Transport) to an international convention or industry standard that would also be incorporated into the regulations.  This will ensure that Canada’s regulatory framework applicable to large vessels is closely harmonized with the style and structure of the regulations, conventions and standards of the international maritime community, thus facilitating its interpretation and application by stakeholders.

This Part also provides for third parties acting on behalf of the Minister to set their own fees for the following services:

DIVISION 3 - PRESERVING THE STABILITY AND STRENGTH OF CANADA’S FINANCIAL SECTOR

A well-capitalized financial sector and sound regulatory and supervisory system meant that financial institutions in Canada were better able to weather the 2008 global financial crisis than other countries. Indeed, the World Economic Forum has ranked Canada's banking system as the soundest in the world for five straight years. The Government is committed to maintaining this Canadian advantage.

Canada has made significant progress in implementing the G-20 financial sector reform agenda and will continue to play a leadership role in promoting sound financial sector regulation internationally.

To support central clearing of standardized over-the-counter derivative transactions – a key G-20 commitment – and to reinforce Canada’s financial stability framework, amendments are proposed to the Payment Clearing and Settlement Act (PCSA).

The PCSA provides for the supervision and regulation of designated clearing and settlement systems that pose systemic risk to the Canadian financial sector. It also provides protections to designated or named systems.

Amendments are proposed to ensure that derivatives clearing activities are treated in a similar fashion as the clearing of cash securities under the PCSA. This will extend legal protections under Canadian law to derivatives clearing central counterparties (CCPs) operating in the Canadian market, Canadian clearing members of these CCPs, and clients of these clearing members – better ensuring that the protections remain robust and do not result in Canadian market participants being at a competitive disadvantage relative to other jurisdictions.

Amendments to the PCSA and Canada Deposit Insurance Corporation (CDIC) Act are proposed to reinforce Canada’s financial stability framework. The proposed amendments would enhance CDIC’s ability to take on and preserve critical functions of a failed CDIC member through a bridge institution. The proposed amendments would provide for a limited automatic stay on the ability of certain counterparties of a failed CDIC member institution to terminate certain eligible financial contracts, such as derivatives and repos, for one business day following the incorporation of a bridge institution.

DIVISION 4 - FISHERIES

This initiative amends the Fisheries Act and the Jobs, Growth and Long-Term Prosperity Act to provide legal clarity to previous amended sections and to provide a transitional authority for existing authorizations for harm to fish habitat.

KEY AMENDMENTS:

Addition to Section 40 to direct all fines collected under Section 40 of the Fisheries Act to the existing Environmental Damages Fund, to be used for proactive initiatives to further advance the protection of Canada’s fisheries.

Amendment to Section 2 clarifies the interpretation of the term “Aboriginal Fisheries” in relation to a fishery.

Amendment to Section 20(4) to address the unintended consequence of previous amendments to the Fisheries Act that did not allow for authorization of obstructions to fish passage. A provision is added to clarify control of the obstruction of fish passage by fishing gear.

A transitional authority is added to provide certainty to holders of existing Fisheries Act section 32 and 35(2) authorizations, and to enhance legal clarity and provide consistency for departmental staff, proponents and partners.

DIVISION 5 - BRIDGE TO STRENGTHEN TRADE ACT

The Windsor-Detroit corridor is Canada’s most important trade artery and the busiest Canada-U.S. commercial border crossing, handling almost 30 percent of Canada-U.S. surface trade. An efficient and secure trade corridor is essential to the economies of Canada and the United States.

Accordingly, the Detroit River International Crossing (DRIC) project is a priority infrastructure project for the Government and as such, Economic Action Plan stated that “the Government of Canada will continue to work with the State of Michigan, the U.S. Government and the Province of Ontario to make timely progress toward the construction of a new crossing.”

Such progress was clearly demonstrated on June 15, 2012, with the Prime Minister announcing the conclusion of an agreement between Canada and the State of Michigan toward building the DRIC project. Moreover, this agreement demonstrates that the Government of Canada is working to advance the goals of the Beyond the Border Action Plan on Perimeter Security and Economic Competiveness announced in December 2011.

The DRIC project is consistent with the Government’s economic agenda given its importance for Canada’s long-term economic prosperity, growing international trade and investment, and the creation of jobs in the Windsor area. The new crossing will facilitate the movement of people and goods between Canada and the U.S. by ensuring that there is sufficient border crossing capacity to handle projected growth in cross border trade and traffic in the Windsor-Detroit trade corridor. It will also provide a much-needed crossing alternative at the busiest Canada-U.S. commercial border crossing and create thousands of jobs and opportunities on both sides of the border. 

The proposed DRIC bill would bring certainty to the private sector for the construction of the DRIC project through a public-private partnership (P3). The main objective of the proposed bill is to ensure the successful and timely construction of the DRIC project.

The proposed bill would exempt the construction of the DRIC from a number of federal laws under which permits, approvals or authorizations are required to construct the DRIC. The proposed bill would also clarify a number of corporate governance issues and would provide minor amendments to the International Bridges and Tunnels Act to ensure that there is no ambiguity in the Crown’s authority to establish a corporation to implement the project in the U.S.; to establish tolls and others charges for the use of the international bridge; and to charge tolls under a P3.

While the proposed bill would exempt the DRIC project from the application of certain federal laws, it would compel the project proponents (including the P3 partner) to comply with the intent of these laws even though a permit/ approval would not be issued. Indeed, Transport Canada will work with federal responsible agencies to ensure that environmental mitigation measures comply with the intent of all federal laws pertaining to environmental protection, fish and fish habitat, migratory birds, species at risk and navigable waters.

The proposed bill will facilitate the construction of the urgently needed bridge which will benefit Canada-U.S. trade and travelers and the economies of Canada and the U.S. It is important to ensure continued efficiency, security, safety and cross-border mobility.

Division 6 - BRETTON WOODS AND RELATED AGREEMENTS ACT

Division 6, Part 4 introduces consequential, technical amendments as a result of amendments already legislated through the Jobs, Growth and Long-Term Prosperity Act (C-38).

C-38 legislated Canada’s commitment to ratify an important quota and governance reform agreement reached in 2010 at the G-20 Finance Ministers and Central Bank Governors meeting in Gyeongju, Korea. These actions increased the voice and representation of emerging market and developing countries at the IMF to strengthen its legitimacy and effectiveness.

As a consequential step to C-38 legislating these reforms, Schedule I of the Bretton Woods Act must now be updated to reflect changes to the IMF Articles of Agreement.

DIVISION 7 - CANADA PENSION PLAN

In accordance with the legislation governing the Canada Pension Plan (CPP), Finance Ministers review the financial state of the CPP every three years and make recommendations as to whether benefits or the contribution rate or both should be changed.

Federal, provincial and territorial Ministers of Finance recently completed their 2010–2012 triennial review of the CPP. Economic Action Plan 2012 announced that the 2010–2012 triennial review of the CPP confirmed the financial sustainability of the Plan for at least the next 75 years at the current contribution rate of 9.9 per cent of pensionable earnings. Thus, there will be no change to the contribution rate.

Additionally, federal, provincial and territorial Ministers of Finance unanimously agreed to a number of technical amendments to the CPP legislation and to the CPP Investment Board regulations.

The proposed CPP amendments range from consequential changes to the reforms that were made to modernize the CPP in the previous 2007–2009 triennial review to amendments that will ensure consistency within the different parts of the CPP legislation. The technical amendments will not change the level of CPP benefits or have an impact on the contribution rate.

In particular, Division 7 of Part 4 would make the following technical amendments:

DIVISION 8 - INDIAN ACT

BACKGROUND

In 1988, an amendment to the Indian Act fundamentally changed the ability of First Nations to exercise greater control over the economic development of their reserve. The main proponent of this amendment, the Kamloops First Nation, articulated the concern shared by many First Nations who were not legally allowed to lease their lands to non-Indians without first surrendering the land to the Crown. A land surrender requires the First Nation to transfer its rights and interest in the land to the Crown.

The Kamloops amendment created the new concept of “land designation”, which allows a First Nation to lease a part of the reserve without surrendering its collective interest. Furthermore, it enables the First Nation to collect real property tax from lessees. Land designation enables First Nation corporations and third party developers to lease reserve land. Financial institutions regard leases as assets, enabling First Nations to use them as collateral for securing loans or financing economic development projects.

Land designation currently takes an average of one to two years to complete. There are two levels of approvals to the designation process; at the community level; and by the Governor in Council. When a First Nation sets out to develop a parcel of collectively held reserve land, the land must be designated, as per sections 38 to 41 of the Indian Act, by a community vote. Under the Indian Act, in order for the initial designation vote to be successful, a majority of eligible electors must cast a ballot. Less than half of the membership participates in approximately 4 out of 5 designation votes. When this happens, the band council may issue a band council resolution requesting that a second simple majority vote be held.

Land designations have become the preferred alternative to land surrenders, yet the administrative process remains incompatible with the fast pace of modern business. For First Nations operating under the Indian Act, designation is a prerequisite to attracting investment in the community, such as developing land for small and medium sized businesses, parks and public spaces, and any activity that may be beneficial to the community but which will be undertaken by a non-member of the First Nation. Land designation is also the first step in developing First Nation petroleum and mineral resources under the Indian Act, thus a timely process is essential to attracting business partners from the private sector.

On March 15, 2012, the National Aboriginal Economic Development Board voiced its concerns at the Standing Committee on Aboriginal Affairs and Northern Development that “First Nations do not have an ability to move swiftly in developing their lands as a result of the restrictions that arise under the Indian Act and the red tape that comes with them”. The process of designating land was identified as one of the most problematic barriers, due to the length and complexity of the process, which adds time and cost to transactions, and has placed First Nation financing in jeopardy on a number of projects. The Auditor General has also identified the designation and leasing processes to be the cause of unnecessarily lengthy approval times for projects on reserve.[1]

According to the Standing Senate Committee on Aboriginal Peoples, inefficient voting practices destabilize First Nation governance, erode self-determination, and are injurious to economic development on reserve. Repeated votes are not only costly, but also impose an ineffective process on First Nation communities.[2]

PROPOSED AMENDMENTS

1) Reducing Voting Threshold to a Simple Majority Vote

The proposed legislation would provide for an expedited designation voting process whereby a simple majority of votes, in accordance with the procedures set out in the Indian Referendum Regulations, would be required for a successful designation vote. The designation process currently takes approximately one to two years, with the time to conduct two votes spanning approximately 4 months. By removing the majority of majority voting threshold and requiring a simple majority on the initial designation vote, the time to conduct a vote would likely be reduced by a couple of months, which would reduce the cost of doing business with the First Nation as well as reduce the expenses in supporting the designation process.

The designation process requires that all members of the community receive detailed information packages about the proposed use of the land and that an information session be held. This ensures informed voting and corroborates community consent.

Reducing the voting threshold would be consistent with other approaches where, for example, a simple majority vote is currently sufficient to elect the Chief and Council of a First Nation, to accept multi-million dollar out-of-court settlements, and to accept a settlement of a specific claim valued between $3-7 million. In comparison, the requirement to have a majority-of-majority vote for designations is unjustifiably high in light of the impediments it poses to economic development.

2) Removal of Governor in Council Responsibility

Section 39 of the Indian Act requires that the Governor in Council approve land designations. Given that lands do not lose reserve status, this level of authorization is counterproductive to the Government’s efforts to support Aboriginal economic development instruments. The proposed amendment would allow the Minister of Aboriginal Affairs and Northern Development, rather than the Governor in Council, to authorize the land designations. This amendment is expected to reduce the land designation process by several months.

CONCLUSION

Maintaining the current designation provisions of the Indian Act perpetuates a slow and cumbersome process that impedes economic development benefitting First Nations on reserves. It also undermines First Nations governance while incurring unnecessary costs to Canada and First Nations. Reducing the time frame for processing designations aligns with the objectives of the 2009 Federal Framework for Aboriginal Economic Development to enhance the value of Aboriginal assets and remove impediments to developing the land and natural resource base on reserve. These amendments also build on the Government of Canada’s commitment to ensure that Aboriginal people benefit from economic development by streamlining land-related approvals processes.

DIVISION 9 - Judges Act

Part 4 of this enactment makes several amendments to the Judges Act in order to implement the Government of Canada’s Response to the Report of the fourth Judicial Compensation and Benefits Commission.

The Commission was charged with inquiring into the adequacy of the salaries and benefits of all federally appointed judges (that is, the judges of federal courts and of all provincial and territorial superior trial and appeal courts) for the four year period April 1, 2012 to March 31, 2016 (the Quadrennial Period). It reported on May 15, 2012. Pursuant to the terms of the Judges Act, the Government had until November 15, 2012 to issue a public response to the Report.

These amendments implement five Commission recommendations accepted by the Government. These are:

Recommendation 1: While the judiciary had proposed a salary increase of 20% inclusive of statutory indexing for the Quadrennial Period, the Government had proposed that there be no increase in salary and that statutory indexing be capped at 1.5% annually for the period. The Commission recommended that, effective April 1, 2012, all current salaries of federally appointed puisne judges sitting in all Canadian trial courts remain the same and that the statutory indexation pursuant to s. 25 of the Judges Act continue to be applied to the judicial salaries for each subsequent year of the Quadrennial Period.

This recommendation represents the status quo.

Recommendation 3: The Commission recommended that salary differentials continue to be paid to the Chief Justice of Canada, the Justices of the Supreme Court of Canada, the chief justices and associate chief justices of the trial and appellate courts for each subsequent year of the Quadrennial Period. (Although not mentioned, this would include the Senior Judges of the territorial superior courts).

This recommendation also represents the status quo.

Recommendations 4 and 5: The Senior Judges of the three territorial superior courts currently enjoy the same salary and benefits as Chief and Associate Chief Justices except in relation to their retirement annuities. The Commission recommended that the Judges Act be amended so that senior judges of the territorial superior courts who elect supernumerary status receive the same treatment with regard to their retirement annuities as chief justices of both trial and appellate courts who elect supernumerary status. The Commission also recommended that the Judges Act be amended so that the retirement annuity of

a senior judge of a territorial superior court who ceases to perform the duties of a senior judge and performs only the duties of a puisne judge while receiving the salary of a puisne judge, be granted a retirement annuity based on the salary of a senior judge.

Recommendation 7: The Senior Regional Judges in Ontario are currently entitled to a Representational Allowance of $5,000 per year. The Commission has recommended that the Senior Family Judge should be paid the same representational allowance.

The amendments made by this enactment also make some modifications intended to improve the timeliness and effectiveness of the Commission process. More specifically, the amendments reduce the government’s time to respond to a commission report from six to four months and require the introduction of any amendments necessary to implement a response within a reasonable period.

DIVISION 10 - CANADA LABOUR CODE

Division 10 of Part 4 of this enactment amends Part III of the Canada Labour Code (Part III), the legislation which sets minimum employment standards for employees of federally regulated enterprises. The proposed amendments, which are aimed at making compliance with Part III requirements easier and less burdensome, and reducing the cost of administering the legislation, can be grouped into four broad categories.

Simplification of holiday pay calculation

Part III provides employees with nine general holidays per year, each of which must normally be remunerated by the employer. However, the current method for calculating holiday pay has proven highly complex and difficult to apply: different formulae have to be used depending on whether an employee is paid on a monthly, weekly, daily, hourly or other (e.g., mileage rate) basis, and whether or not the employee’s hours of work vary from day to day.

A new formula will be put in place to simplify the calculation of holiday pay. For most employees, holiday pay will be equal to 1/20th of wages earned (excluding overtime) in the four-week period preceding the week in which the general holiday occurs. To reflect the fluctuating nature of their earnings, holiday pay for employees paid in whole or in part by commission will be 1/60th of the wages earned (excluding overtime) in the 12-week period preceding the week of the general holiday – unless the employee was not employed for that entire period, in which case the regular formula for calculating holiday pay would apply.

Consequential changes will also be made to eligibility requirements for holiday pay: to qualify, 30 days of employment with the employer will still be required, but it will no longer be necessary to have earned wages for 15 of the 30 days preceding the holiday.

Establishment of statutory complaint mechanism

With the exception of complaints for unjust dismissal, Part III does not presently include a statutory complaints mechanism to address violations. Rules regarding the filing and handling of most complaints have been established through policies, which have limited legal standing.

Amendments to Part III will provide for a formal mechanism to deal with complaints regarding unpaid wages and other labour standards violations that are not covered by unjust dismissal provisions. This will largely codify existing practices, while explicitly setting out time limits for filing complaints (normally six months from the date of the alleged offence), the circumstances in which an inspector may suspend or reject a complaint (e.g., if it is frivolous, has been settled or should be dealt with under a collective agreement’s grievance procedure), and the process for reviewing an inspector’s decision to reject a complaint. Additional provisions will authorize inspectors to mediate complaints to help parties reach a settlement, where possible.

Limits on the period that may be covered by a payment order

Under the current legislation, an inspector may issue a payment order to an employer and, in some cases, to directors of a corporation, if an employee has not been paid wages or other amounts to which they are entitled under Part III. (Where an inspector dealing with a complaint finds that no wages are owed, a “notice of unfounded complaint” is issued to the employee.) There is currently no statutory limit on the amount of wages that may be covered by a payment order, although some time limits are provided for under the Labour Program’s complaints handling directive.

Part III will be amended to set limits on the period of time that may be covered by an inspector’s payment order. A payment order could cover wages and other amounts that became owing in the period starting 12 months before (or, in the case of vacation pay, 24 months before):

Review of payment orders and notices of unfounded complaint

Currently, any person affected by a payment order or a notice of unfounded complaint may appeal it, subject to certain time limits and the obligation for employers and corporate directors to deposit, with the Minister of Labour, the amount indicated in the payment order that they are appealing. Appeals are heard and adjudicated by external referees, appointed by the Minister on an ad hoc basis.

New sections will be added to Part III to provide for a new administrative review mechanism aimed at reducing the reliance on external referees in wage disputes. A person affected by an inspector’s payment order or notice of unfounded complaint will be able to request, with written reasons, a review of the decision. Such a review would be conducted by a Labour Program official designated by the Minister, who could confirm, amend or rescind the inspector’s decision. The decision on review could be further appealed to a referee, but only on a question of law or jurisdiction. The Minister could also refer a complex case directly to a referee, rather than having it dealt with under the new review mechanism.

Some consequential changes will also be made to other Part III provisions. This includes setting a clear 30-day deadline for paying any vacation pay owed to an employee after a termination of employment, authorizing the Minister to reimburse employers or directors any amounts they are owed that were deposited with the Labour Program, and specifying that payment orders may not be filed in court for enforcement purposes while they remain subject to a review or an appeal.

DIVISION 11 - AMENDMENTS TO THE MERCHANT SEAMEN COMPENSATION ACT

The amendments to the Merchant Seamen Compensation Act transfers the powers and duties of the Merchant Seamen Compensation Board to the Minister of Labour, which effectively ends the Board.  

The Merchant Seamen Compensation Board consists of three part-time members who adjudicate claims and determine benefits made under the Act.

The application of the Act is very small, currently applicable to only five shipping operators employing some 1,025 merchant seamen – the majority of whom are already eligible for coverage under a provincial workers’ compensation scheme and therefore not subject to the Act.

Once the proposed amendments become law and come into force, the Labour Program will assume all functions previously carried out by the Board.

While these amendments will streamline the administration of the Act, benefits to affected seamen will not be altered.

DIVISION 12 - CUSTOMS ACT

Pre-Departure Traveller Information

As part of the Beyond the Border Action Plan on Perimeter Security and Economic Competitiveness, Canada is working to better screen travellers so that security threats can be stopped ahead of time.

The changes to the Customs Act will support the Interactive Advance Passenger Information (IAPI) initiative outlined in the Action Plan.

IAPI will allow the CBSA to take steps to prevent high-risk or improperly documented travellers from boarding a plane destined for Canada, which will also reduce costs associated with removing inadmissible individuals from Canada.

The intent of this amendment is to increase the amount of time CBSA officials have to review pre-departure information pertaining to travellers arriving on short-duration flights, increasing the integrity of the traveller screening program.

When this amendment is in place, if screening reveals a traveller who is at high risk of being found inadmissible to Canada on arrival, the CBSA can issue a direction to the operator of the conveyance not to carry such a person.

Advance Data Requirements for Pre-Screening Cargo

The integrated cargo security initiative will deliver on the Beyond the Border Action Plan on Perimeter Security and Economic Competitiveness by harmonizing the security requirements for cargo imports between both countries. These proposed amendments to the Customs Act will allow for regulatory changes requiring provision of cargo manifest information before loading at foreign ports.

The pre-screening of cargo will help save time for businesses and government by significantly reducing the need for re-inspection of cargo that proceeds to cross the Canada-U.S. land border. The proposed amendments to the Customs Act will require shippers to provide CBSA with cargo data before loading can commence, ensuring that high risk cargo does not make it to Canada’s shores.

Clarify Port Authority Obligations to Maintain Customs Facilities

The Customs Act is being amended in order to clarify the scope of the obligations of owners/operators of international toll bridges and tunnels, airports, marine ports and railways to provide, equip and maintain adequate port of entry facilities at no cost to the CBSA.

The amendments clarify what the CBSA has always required owners/operators to provide and maintain, and what owners/ operators have always provided and maintained free of charge to the Government since section 6 was enacted in 1986.

The amendments do not impose new, additional obligations or requirements on owners/operators.

DIVISION 13 - Hazardous Materials Information Review Act

The Hazardous Materials Information Review Act (the Act) would be amended to transfer the responsibilities and functions of the Hazardous Materials Information Review Commission (the Commission) to Health Canada and, as a result, the Commission would cease as a stand-alone agency.

The amendments to the Act will not affect its primary purpose, which is to provide for the granting of exemptions under Workplace Hazardous Materials Information System (WHMIS) so as to protect confidential business information.

All key aspects of the Act related to the claim for the exemption process would remain, including: the formal registration of claims and the issuance of registry numbers; the determination of claim validity based on prescribed regulatory criteria; the determination of compliance of material safety data sheets (MSDSs) and labels with WHMIS requirements; and the convening of independent, tripartite boards to hear appeals from claimants or affected parties on decisions and orders issued under the Act.

As a result, the amendments to the Act would transfer authorities to the Minister of Health from the redundant positions of President and the Council of Governors.

DIVISION 14 - AGREEMENT ON INTERNAL TRADE IMPLEMENTATION ACT

In October 2009 and June 2012, federal, provincial, and territorial internal trade ministers on the Committee on Internal Trade (CIT) approved amendments to strengthen the dispute resolution process of the Agreement on Internal Trade (AIT) by incorporating enforceable monetary penalties against governments for failure to bring a non-compliant measure into compliance with the AIT.  

The Government aims to build a stronger economic union and eliminate barriers to internal trade and to labour mobility, as these amendments address concerns raised by a wide range of Canadians regarding the AIT’s ineffective enforcement process. The changes will encourage governments to respect their AIT obligations, thereby strengthening regulatory harmonization and internal trade flows.

Amendments generally apply to both government-to-government and person-to-government disputes. However, in contrast to government-to-government disputes in which monetary penalties are paid to the complaining party, such penalties are not paid to the complaining party in person-to-government disputes. Instead, monetary penalties will first be used to reimburse the successful complainant’s costs: any balance will be deposited into the Internal Trade Advancement Fund and used to further objectives related to internal trade. While the monetary penalty will be available to encourage AIT compliance in both types of disputes, CIT ministers did not want monetary penalties to operate as an incentive to bring non-meritorious complaints.

With the enactment of this measure, any monetary penalties ordered against the Government of Canada will be enforceable in the same manner as an order of the Federal Court and will be payable from the Consolidated Revenue Fund. The magnitude of a monetary penalty is in proportion to the population of the jurisdiction in question. While the maximum amount for smaller provinces and territories is $250 000, it is $5  million for the five largest jurisdictions (Canada, British Columbia, Alberta, Ontario and Quebec). This measure will also ensure that Governor-in-Council appointments of panel and appellate panel members correspond to the new qualification criteria.  

Other minor technical amendments include the repeal of a redundant subsection in the Crown Liability and Proceedings Act and revised definitions and section headings in the Agreement on Internal Trade Implementation Act.

This bill will only affect the federal government. All other AIT parties have either enacted, or are in the process of enacting, the legislation required to implement these amendments, thereby ensuring their effectiveness throughout Canada.

DIVISION 15 - employment insurance act

Part 4, Division 15 amends Part IV of the Employment Insurance Act in order to extend the Hiring Credit for Small Business to 2012.

Small businesses are the engine of job creation in Canada. In recognition of the challenges faced by small businesses across the country, Budget 2011 announced a temporary Hiring Credit for Small Business of up to $1,000 per employer.

This credit provided needed relief to small businesses by helping defray the costs of hiring new workers and allowing them to take advantage of emerging economic opportunities.

As the economy continues to recover amid continuing global economic uncertainty, Part 4, Division 15 proposes to extend the temporary Hiring Credit for Small Business for one year.

A credit of up to $1,000 against a small employer’s increase in its 2012 EI premiums over those paid in 2011 would be provided. This temporary credit would be available to approximately 536,000 employers, whose total EI premiums were at or below $10,000 in 2011, reducing small business 2012 payroll costs by about $205 million.

DIVISION 16 - IMMIGRATION AND REFUGEE PROTECTION ACT

The Beyond the Border Action Plan on Perimeter Security and Economic Competitiveness Action Plan signed by Prime Minister Harper and U.S. President Obama in December 2011 will accelerate legitimate flows of people and goods between both countries, while strengthening security, economic competitiveness, and creating jobs.

This Action Plan commits Canada to introduce an Electronic Travel Authorization (eTA) program to establish a common North American approach to screening travellers. The eTA program will be similar to the United States’ existing Electronic System for Travel Authorization (ESTA) program and will permit the Government of Canada to examine most visa-exempt foreign nationals at the earliest opportunity, prior to their travel to Canada by air.

The eTA program will produce benefits in terms of reduced costs and resources required to process inadmissible persons in Canada, along with related reduced enforcement and removal costs. The eTA will also contribute to decongestion at ports of entry, as travellers will already have been examined prior to arrival. Also, given that with the eTA Canada will be able to examine visa exempt travelers before they travel here, it would allow Canada to reconsider its visa policy towards current low-risk visa-required countries.

The information that would be used in the eTA program is basic biographical information that relates to foreign nationals only. Canada and the U.S. have agreed to a Joint Statement of Privacy Principles that will ensure privacy is protected.

In order to minimize any adverse impacts upon travellers and Canadian business and tourism industries, an electronic processing system will be used to approve eTA applications to ensure optimum processing time and program efficiency. This approach is consistent with the U.S. ESTA model. To that end, amendments will be made to the Immigration and Refugee Protection Act (IRPA) to allow for the electronic processing, examination and issuance of an eTA in appropriate cases pursuant to regulations.

Further, the IRPA currently provides that immigration services may be cost recovered through fees established in the Immigration and Refugee Protection Regulations. As it is recognized that flexibility in the setting and adjustment of eTA processing fees is important and as it is believed that the regulatory process already provides sufficient transparency and accountability in the setting of the fee, the proposed legislative amendments exempt the processing fee for this document from the application of the User Fees Act.  

DIVISION 17 - CANADA MORTGAGE AND HOUSING CORPORATION ACT

This amendment repeals subsection 8(1)(c) of the Canada Mortgage and Housing Corporation Act which stipulates that no person shall be appointed or continue as President or as a director from outside the federal public administration if that person has reached the age of seventy years. This is consistent with changes made to other Acts in 2011. These include changes to the Canada Human Rights Act to prohibit federally regulated employers from setting a mandatory retirement age, and to the Auditor General Act to repeal provisions stipulating that the Auditor General cease to hold office on reaching 65 years of age.

DIVISION 18 - Navigable Waters Protection Act

The Navigable Waters Protection Act is one of Canada’s most antiquated pieces of legislation, dating from 1882 at a time when our waterways were Canada’s primary transportation routes.  The Act’s main purpose was then, and is still, to facilitate trade and commerce by balancing the efficient movement of maritime traffic with the need to construct works (e.g., bridges) that might obstruct navigation, in order to encourage economic development.

Over time however, the scope and application of the Act has significantly expanded due to many factors such as amendments, judicial decisions and changes in operational practices of mariners. The Act applies to all waters in Canada that can float a canoe including ditches, brooks, streams and fields temporarily flooded in spring. Now, even a temporary creek created by spring run-off that dries up within a month or two would trigger review under the Act. The volume of applications for approval is so large that there are inevitable backlogs. These backlogs are delaying essential infrastructure projects by months and even years.

The most recent amendments to the Act were passed in 2009, and introduced the implementation of the Minor Works and Waters (NWPA) Order. The Order enables low risk works, such as foot bridges across streams and culverts in ditches, to be pre-approved under the Act.

In line with the Government of Canada’s commitment to streamlining the regulatory process and encouraging long-term economic growth and job creation, the proposed amendments to the Act not only usher in a risk-based approach to the regulation of works and obstruction and build on the 2009 amendments, but seize the opportunity to create a modern, robust, and flexible legislative scheme that is effectively responsive to the needs of Canada in the future. Ultimately, re-focusing the scope and application of the legislation to better balance the efficient movement of marine traffic with the need to construct works, such as bridges, wharfs and transmission lines.

The proposed amendments to the Act will:

The list of major waterways is focused . Those placed on the list support busy commercial or recreational activity, are accessible by ports and marinas, and are often close to heavily populated areas. Nautical charts compiled by the Canadian Hydrographic Services, reliance on historical data from the Navigable Waters Protection Program as well as Statistics Canada numbers related to freight movement on Canadian waterways were used to compile the list.

Under our common law tradition, courts have consistently protected navigation in Canada’s waterways, and they will continue to do so in both listed and unlisted waters.

Canadian waters will continue to be protected by Transport Canada’s marine safety laws, the Fisheries Act, the Canadian Environmental Assessment Act, 2012 and various provincial statutes.

DIVISION 19 - CANADA GRAIN ACT

The purpose of thelegislative amendments to the Canada Grain Act (CGA) is to streamline and update the Canadian Grain Commission’s (CGC) operations by reducing costs and aligning better with the needs of the grain sector.

The Government is committed to improving the Canadian Grain Act and streamlining services offered by the Canadian Grain Commission. Budget 2012 included $44 million for the Canadian Grain Commission to continue transitioning to a new sustainable funding model. This will create a more competitive environment for our farmers--improving their bottom-line.

The proposed legislative changes are part of an ongoing transformation of the Western Canadian grain sector and will maximize the full benefit framers now enjoy from marketing freedom with the elimination of the CWB’s monopoly on marketing wheat and barley. As well as the implementation of the Government’s responses to the Rail Freight Service Review and the Red Tape Reduction Commission reports.

The proposed legislative changes would remove CGC services that are no longer needed in today’s grain sector. The amendments reflect feedback received from the grain sector during the CGC’s 2011 user fees consultation as well as the organization’s engagement with stakeholders on possible amendments to the CGA in early 2012.

The proposed amendments to the CGA are intended to maintain the CGC’s ability to ensure the dependability of Canadian grain shipments and fulfil its producer-protection function. These amendments are intended to: reduce costs and increase efficiency of operations in order to improve the overall international competitiveness of the Canadian grain sector; refocus the CGA to only regulate where necessary. Services demanded by industry would be appropriately provided by the private sector.

These amendments will produce benefits for producers, the grain industry, and all Canadians. The regulatory burden on the grain industry will be reduced. By regulating only where necessary, the CGC would reduce overall costs and increase the efficiency of grain handling and improve the competitiveness of Canadian grain in the international marketplace.

Mandatory inward inspection and weighing services conducted by the CGC would be eliminated, and the producer payment protection program would be modified to reduce unnecessary costs for producers and grain handlers. However, the CGC’s role in establishing and maintaining standards of quality for grain; grain safety and quality research; and regulating grain handling in the interests of producers and all Canadians would continue.

DIVISION 20 - INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT (AIRCRAFT EQUIPMENT) ACT

These legislative amendments are related to Canada’s ratification of the Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Convention and Protocol).  By pursuing ratification of the Convention and Protocol along with the proposed legislative amendments, the federal government could assist Canadian airlines in achieving important financial savings on the financing of aircraft.

In 2004, Canada signed the Convention and Protocol but has not yet ratified them. In 2005, Canada adopted the International Interests in Mobile Equipment (aircraft equipment) Act (the IIME Act), and amended other legislation, for Canada’s eventual ratification of the Convention and Protocol.

The Convention and Protocol are multilateral agreements that establish a commercially oriented, international legal framework to protect security and leasing interests in aircraft equipment (i.e., airframes, engines and helicopters), and facilitate cross-border, asset‑based financing and leasing of this equipment.  The Convention and Protocol allow the value of aircraft equipment to be used as security for payment, and also establish an International Registry for interests in aircraft equipment, which records the existence of rights, and determines their order of priority for use in the purchase and financing of aircraft, thereby facilitating the resolution of questions of title in the event of insolvency or bankruptcy. The Convention and Protocol provide financiers with greater assurance that aircraft assets could be recovered in a timely manner in cases where those operating the assets (including airlines) become financially insolvent. Because of this, financiers are able to reduce risk premiums and offer more favourable lending rates.  This could result in significant cost savings for the Canadian aviation industry.  Canada’s aircraft equipment manufacturers also support ratification of the Convention and Protocol, as this could encourage other countries to do the same, which would then provide these manufacturers with greater security in their international product sales.

The Aircraft Sector Understanding (ASU) is an informal agreement developed under the Organisation for Economic Co‑operation and Development (OECD). Under the ASU, countries that ratify the Convention and Protocol with certain declarations – options that a country can opt-in or opt-out of, specifying how aircraft equipment would be treated in the event of insolvency or bankruptcy – can be placed on the “Cape Town List” if they are accepted by other ASU Participants.  Being on the ASU Cape Town List allows aircraft purchasers from that country to be eligible for a discount from official export credit agencies in the financing of aircraft. Export credit agencies are a significant source of financing for aircraft equipment.

In order to increase the likelihood of Canada being added to the Cape Town List, an amendment to the IIME Act is proposed that will give Article XI of the Protocol (Alternative A) force of law in Canada.  Alternative A is a provision that requires an insolvent debtor to pay all defaults against an aircraft object within 60 days and agree to perform all future obligations, failing which the creditor can repossess the aircraft object without judicial discretion. When Canada first passed the IIME Act in 2005, it was thought to be sufficient to make amendments to bankruptcy-related legislation that largely reflected the intent of Alternative A, and such amendments were made to the Bankruptcy and Insolvency Act (BIA), the Companies’ Creditors Arrangement Act (CCAA), and the Winding Up and Restructuring Act (WURA).  More recently, the ASU has deemed that Alternative A should be explicitly adopted by countries seeking
to be on the Cape Town List. Thus, the current initiative proposes an amendment to the IIME Act to give Article XI/Alternative A the force of law in Canada. As a result, the Cape Town-specific language that was introduced in the BIA, CCAA, and WURA in 2005 would no longer be required, and would be repealed to provide greater clarity and avoid duplication.

Furthermore, the IIME Act would also be amended to ensure that certain federal legislation that focuses on public security issues (e.g., control the export of goods to proscribed individuals, organizations and countries that support terrorism) would override the Convention and Protocol in the event there is an inconsistency between the laws.

The 2005 IIME Act currently includes a clause stating that the Convention and Protocol would prevail if there were an inconsistency with any other federal legislation in the context of an insolvency proceeding.  However, it has since been determined that, in the public interest, the Convention and Protocol should not override the Export and Import Permits Act, Special Economic Measures Act, United Nations Act, Controlled Drugs and Substances Act, and certain provisions of the Criminal Code.

DIVISION 21 - CANADIAN ENVIRONMENTAL ASSESSMENT ACT, 2012

Amendments to the Canadian Environmental Assessment Act, 2012 would subject a designated project, exempted under the current transition provisions, to the requirements of the Act if it is determined, prior to January 1, 2014, that the project requires a federal decision that would have resulted in an environmental assessment under the former Canadian Environmental Assessment Act.

Amendments of a technical nature are proposed to address drafting inconsistencies and to ensure concordance between the French and English versions of the Act.

The amendment closes a technical loophole for projects that could have required an environmental assessment under the former Act (but did not up to July 6, 2012) and would, if proposed today, be subject to the current Act.

DIVISION 22 - CANADA EMPLOYMENT INSURANCE FINANCING BOARD

To ensure that rate setting is done as cost-effectively as possible, the Canada Employment Insurance Financing Board (CEIFB) will be suspended until the Employment Insurance (EI) Operating Account has returned to cumulative balance and the CEIFB can fulfill its full legislative mandate. This change delivers on the Government’s Economic Action Plan 2012 commitment to review the size and structure of the CEIFB in light of recent changes to enhance the predictability and stability of the EI premium rate.

In the interim period, premium rates will be set by the Governor in Council according to the current premium rate setting criteria.

To ensure continued transparency and accountability in the premium rate setting process, the Canada Employment Insurance Commission and its actuary will prepare EI premium rate setting reports similar to those currently prepared by the CEIFB. The Commission and actuary reports will be tabled in Parliament by the Minister of HRSD.

DIVISION 23 - PUBLIC SECTOR PENSIONS

The Public Service Superannuation Act is amended to provide that contributors pay no more than 50% of the current service cost of the pension plan. In addition, the pensionable age is raised from 60 to 65 in relation to persons who become contributors on or after January 1, 2013.

The Canadian Forces Superannuation Act is amended to change the limitations that apply in respect of the contribution rates at which contributors are required to pay as a result of the amendments to the Public Service Superannuation Act.

The Royal Canadian Mounted Police Superannuation Act is amended to change the limitations that apply in respect of the contribution rates at which contributors are required to pay as a result of the amendments to the Public Service Superannuation Act.

DIVISION 24 - CANADA REVENUE AGENCY ACT

Presently, the Canada Revenue Agencyunilaterallysets its own collective bargaining mandates and enters into collective agreements exclusively on the direction and authority of the Canada Revenue Agency Board of Management. It is intended, instead, that the Canada Revenue Agency be subject to the same mandating protocols applicable to other separate agencies.

Section 112 of the Public Service Labour Relations Act applies to the vast majority of separate agencies, with the notable exception of the Canada Revenue Agency, by far the largest of the 27 separate agencies. This section requires that most of the separate agencies receive the approval of the Governor-in-Council prior to entering into a collective agreement.

The Canada Revenue Agency Act will be amended so that the Canada Revenue Agency is also made subject to Section 112 of the Public Service Labour Relations Act.

Concurrently, as is the practice for all other separate agencies, it is also intended that the Canada Revenue Agency Act be amended so that the Canada Revenue Agency is required to obtain its collective bargaining mandates from the President of the Treasury Board, and further, that the Canada Revenue Agency is required to consult with the President of the Treasury Board well in advance of implementing certain other terms and conditions of employment for Canada Revenue Agency employees, and in particular, for those who are not represented and whose terms and conditions of employment are not negotiated nor contained in collective agreements.


[1] Auditor General of Canada, November 2003 Report, Chapter 9

[2] Standing Senate Committee on Aboriginal Peoples, “First Nations Elections: The Choice is Inherently Theirs”, May 2010.

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