Responses from the Provinces

February 2nd, 2014

Background articles:

Part 1
Part 2
Part 3
Part 4


On November 28th, James Moore, Minister of Industry, issued a Parliamentary Determination that the Federal Government considers any portion of Provincial law which contains CSA developed text as illegitimate and unenforceable as Provincial law.

Specifically, the Minister stated that CSA developed materials are merely “voluntary standards” whose character as independent of the law is unchanged by inclusion within the law. Or more simply, CSA standards are not enforceable as laws.

By stripping the CEC of its legal legitimacy, the Minister has invalidated all of Canada’s electrical laws with a single Parliamentary determination.

In response, on December 4th RestoreCSA sent letters to the Provincial Authorities to inquire if they will “accept and comply” with the Minister’s determination by “discontinuing enforcement of Provincial electrical law.”

A majority of Provinces have now responded.  All of these Provincial Governments are in open defiance of Minister Moore and have clearly stated that they intend to continue defying the Industry Minister.

In example, whereas Minister Moore claimed that CSA’s contributions to law are merely “voluntary,” the Government of Ontario has instead stated that the CEC is adopted as law and “every act or omission in connection with the use of electricity in Ontario must be made in compliance” with that law.  “To be clear, the Code issued by the CSA entitled [the CEC] has been adopted as the OESC,” which is the rule of law in Ontario.

In a subsequent letter dated Jan. 15th, the Government of Ontario stated directly that the Province “will continue to enforce the Act […] and does not accept that [the CEC] is a voluntary standard.”  This Provincial statement is the exact opposite of Minister Moore’s Determination.

This Ontario letter also makes reference to recent litigation in which “the Court takes notice of the application of the Code, and that any violation of the Code would constitute an offence.”  Clearly then, Ontario thinks the CEC is compulsory, not voluntary; it is a law, not a suggestion.

The Province of British Columbia agrees with Ontario.  “Accordingly, all codes and standards adopted by reference under this legislation [are] law in BC and will continue to be enforced.”

Minister Boyd, the Saskatchewan Cabinet Minister responsible for SaskPower also agrees, stating that ‘Saskatchewan as a matter of law has adopted and incorporated the current version of [the CEC]” and “has no plans to change this practice.”

In Newfoundland and Labrador, the Minister of Service states that “the Canadian Electrical Code forms part of the law of Newfoundland and Labrador.”

The Government of Manitoba states that “the most current version of the [CEC] is adopted into law for use in Manitoba.”

Some Provinces go further.  The Government of Nova Scotia affirmed that all third party contributions to law “become mandatory when they are prescribed by statute or regulation.”  Then the Nova Scotia Government copied and forwarded that statement to the Premier of Nova Scotia, Provincial Ministers, MLA’s, and Provincial MPs.

Annoyance with Ottawa is a theme running through these Provincial responses.  The Federal Government does indeed have the power to strike Provincial legislation through the Powers of Disallowance and Reservation.  But these powers haven’t been used since 1943 and they’re controversial in some places.  In his attempt to strike Provincial electrical laws, Minister Moore was trying to use the Powers of Disallowance without actually invoking them.  And the Provinces aren’t pleased.

The Ontario Government took pains to note that Minister Moore’s Determination, as made, does not constitute a “binding ruling” on the Province.  And Ontario’s right about that, without Disallowance the Provinces can defy the Federal Government without penalty.  On Dec. 18th, the Ontario Government wrote again to reiterate that Moore’s Determination is not binding on Ontario.  For its part, British Columbia bristled that Provincial electrical laws are “not an area of Federal jurisdiction.”  And Minister Moore is an MP from BC, he’s not helping his prospects.

James Moore is quite good at making adversaries of his allies.  While alienating Provincial Governments, Minister Moore is also alienating his cabinet colleagues. 

The Prime Minister’s Office wrote to RestoreCSA on Dec. 3rd to advise that the Minister responsible for the CSA is James Moore, Minister of Industry.  To this, Minister Moore responded on Dec. 23 that the CSA “does not report to the Minister of Industry.”  So is the Prime Minister’s Office wrong then?  RestoreCSA has helpfully inquired with the PMO about its alleged wrongness.

On Dec. 30th, Minister Moore further entrenched his conflict with the PMO by stating that the CSA “does not report to the Minister of Industry or to the SCC.”  That’s odd, by the way, since the CSA is obligated at law to “report” to the SCC at regular intervals.

On Dec. 31st, Minister Moore’s Director General of Strategic Policy, Ms Krista Campbell, wrote to RestoreCSA stating that the CSA “does not have any regulatory role in Canada” despite drafting over six-hundred current laws and thousands of regulations.  She also added that the CSA “does not report to the Minister of Industry.”

But on Jan. 20th, the Minister of Finance sent RestoreCSA another letter which again affirmed that responsibility for the CSA is “within the jurisdiction of the Minister of Industry, James Moore.”

Even so, on Jan. 7th Minister Moore again advised that the CSA is not “government-mandated,” even though his Department oversees the CSA Charter, and that the CSA does not have a regulatory role, even though its specifically mandated by Parliament to draft regulations, and that “it does not report to me as Minister of Industry,” even though everyone from the Prime Minister to Provincial regulators repeatedly affirm the opposite.

Canada’s most isolated Minister has been reduced to issuing Metcalfe-like responses to every inquiry made about the CSA.  His Department has crafted a one-paragraph blanket statement which denies the existence of the CSA charter, its Act of Parliament, the SCC Charter and, of course, all responsibility for policing the CSA.  And RestoreCSA receives versions of this denial statement on a regular basis.

RestoreCSA recently predicted that as the Minister’s “rulings are provincially rejected, the ownership aspects of those rejected rulings will also be lost in consequence.  And ruling that the CSA can own portions of public law was the whole idea behind his November determinations.  So the Minister will shortly be back where he started, just with less credibility than before he began.” 

And here he is.

 


Referenced Excerpt
Two Letters to James Moore, Minister of Industry


Dear Minister Moore;

Re: Determinations of Private Ownership of Public Law

In your Parliamentary Determination of November 28th of last year, you ruled that the materials developed by the Canadian Standards Association (“CSA”) are “voluntary standards” rather than laws, and notwithstanding the determinations or Orders in Council of provincial legislatures, the Federal Government does not consider any portions of Provincial law which contain CSA developed material as legitimate or enforceable Provincial laws.

As you know, we asked the Provincial Governments if they would “accept and comply with the Minister’s ruling by discontinuing enforcement of Provincial electrical law?”  We have now received responses from a clear majority of Provincial Governments.

All Provincial Governments have stated their intentions to defy the Minister and Industry Canada on this issue.  Further, all Provincial Governments, including those who have yet to reply, are currently enforcing electrical laws in their jurisdictions in defiance of your November 28th Determination.

Could you kindly advise:  What is the intention of the Industry Canada; to enforce the Minister’s Determination or to concede the provincial view?

Your urgent response is appreciated.


Regards,


Gordon Knight
P.S. Knight Co. Ltd.

 


Dear Minister Moore;

Re: Determinations of Private Ownership of Public Law

Your Department has sent us a variety of statements regarding the Canadian Standards Association (“CSA”).  These statements are minor edits of the following template:

I would like to take this opportunity to clarify that the CSA is a private not-for-profit, membership-based association that serves business, governments and consumers through standards development as well as education and information products and services.  The Association does not have any regulatory role in Canada. While the CSA is accredited to develop standards in Canada by the Standards Council of Canada (SCC), it does not report to the Minister of Industry or to the SCC, a federal Crown Corporation operating at arm’s length from Industry Canada.

Unfortunately, the Prime Minister’s Office and a selection of your cabinet colleagues have advised that the CSA is indeed the responsibility of the Minister of Industry.  As you know, every federal charter is managed through a federal department. 

In these contexts, could you kindly advise:

1. Is the Prime Minister’s Office in error when they advise that the CSA is “within the jurisdiction of the Minister of Industry, James Moore”?

2. If Industry Canada is not responsible for the CSA, could you kindly advise which Federal Department does have responsibility for CSA oversight?

Your urgent response is appreciated.

Regards,


Gordon Knight
P.S. Knight Co. Ltd.

Cc: PMO