Dear Minister, Please Fix Your Problem

July 13th, 2014

The Canadian Standards Association (CSA) is a regulatory agency of the Federal Government.  The CSA is mandated to develop regulations for Canadians and, by government decisions subsequent to its original mandate, the CSA is also able to draft and amend legislation without Parliamentary review.  Of course, there are liabilities associated with all of this.  What if one of their regulations is flawed and as a result people are injured?  Or worse?

The Federal Government would rather not deal with politically inconvenient liability issues stemming from the more pedestrian elements of regulatory activity.  Instead, they treat the CSA as though it were a private company.  Treated as such, the CSA is notionally responsible for any liabilities in its regulatory activities, nothing sticks to government. 

At the same time however, the CSA is still legally a government agency and therefore enjoys the unique powers afforded to Federal agencies.  The CSA has immunities from litigation for instance, and they’re exempted from Federal accountability and transparency requirements.  In practice then, the CSA cannot be held accountable for liabilities in its regulatory activity.

So, in the end, neither the CSA nor the government are responsible for the actions of the CSA.

This is quite convenient for both sides, and they’re both quite interested in maintaining this convenience.  And that’s where things get really awkward for the Minister of Industry.

You see, we have been asking some questions of the Minister of Industry, James Moore.  We wanted to know whether the regulations developed by the CSA were laws or not.  If he answered that they were part of public law, then a private company cannot own them and, of course, his department maintains that the CSA is a private company.  Conversely, if the Minister said that CSA regulations are not laws, that they are just voluntary standards, then no government in Canada can legally enforce compliance with them.

During the summer of 2013, we asked the Minister whether CSA’s regulations were the rule of law or just voluntary suggestions.  His response?  He said yes.

You can read our dissection of Mister Moore’s Parliamentary Determination here.  Ever since his obfuscation, we have been pushing for a clear answer from him.  And ever since our first push, his Department has been studiously avoiding our questions. 

What follows are two letters, one to the Minister and another to Diane Finley, the Minister for Public Works.  While the first letter is self explanatory, the second is more pointed.  It seems that the renovations currently underway on Parliament Hill are in compliance with CSA regulations, something Minister Moore said was unnecessary. 

Eventually the ambiguity will give way to clarity, and then heads will roll.

Letter to the Minister of Industry - 13 July 2014

Dear Minister Moore;

We have not received your response to our letter of 04 December 2013 regarding the above noted matter.  Likewise, we have not received your response to our letter of 21 January, 2014 reminding you of our December letter.  Neither have we received your response from our letter of 15 April, 2014 reminding you of our previous two letters.  In the twenty-eight weeks since our first correspondence we have received no answers to any of the six questions that we have submitted to your Department on the above noted matter.

Our original letter of 04 December, 2013, excerpted as follows:

We note that on November 28th of this year, with reference to the Canadian Standards Association (CSA), you responded to an Order Paper question inquiring whether the “CSA owns any portion of Canadian law.”  With respect to ownership of law, your declaration to Parliament included three distinct and formal determinations.  First, you ruled that the materials developed by CSA are “voluntary standards” rather than laws;  Second, you ruled that 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, and;  Third, you ruled that because legal statutes containing CSA developed material are not considered by the Federal Government to be legitimate or enforceable law, the CSA may remain the rightful owner of “the intellectual property and copyright” of their developed materials.

The CSA has developed or contributed to approximately 630 laws.  Your November 28th determination has the affect of delegitimizing and making unenforceable all 630 such laws.  We are unclear on which laws are thusly affected, therefore;

1) Could you kindly advise with a complete list of all of the 630 (or more) legal statutes which are no longer legitimate or enforceable due to inclusion of CSA material?

In your determination, you also noted that “hundreds” of other inclusions are furnished by “various” organizations.  It stands to reason that these other inclusions are likewise illegitimate and unenforceable as laws.  In this context therefore;

2) Could you kindly advise with a complete list of all of the other legislation which is affected as illegitimate or unenforceable due to inclusions of submitted or lobbied material in similar fashion to that of CSA?

While we have regarded the CSA as a regulatory entity due to its creation as a regulatory entity, its Federal Charter, the Act of Parliament which brought it into being, (etc.), we recognize that you have ruled on November 28th that the CSA does not have standing as a regulator and therefore may be considered as a commercial entity like any other for purposes of lobbying governments for passage of legislation.  In the context of your ruling, it appears that any commercial entity, ordinary as you have declared the CSA to be ordinary, does “maintain the intellectual property and copyright” of those portions of legislation which these entities have created and lobbied for.  The majority of public laws are therefore the private property of those corporations which lobbied for their passage into law.  These corporations are therefore at liberty to invoice the Canadian Government for royalties covering the usage and dissemination of, and compliance with, their laws / intellectual property.  In this context therefore;

3) Could you kindly advise whether your Department has undertaken a study on the affect of such wide scale private ownership of public law and, if so, whether this study may be released for our review?

Certain citizens, including your correspondent, have had occasion to contribute to legislation in Canada.  In this context therefore;

4) Could you kindly advise to whom we should direct our invoice for royalties payable on your usage and dissemination of, and your enforced compliance with, our laws / intellectual property?

Finally, we note that the absence of enforceable electrical laws in Canada resulting from your determination of November 28th does undermine the safety of the Canadian people and the stability and predictability of enforcement of what are now ad-hoc inspection processes.  In this context therefore;

5) Could you kindly advise whether your Department has a national standard for electrical safety to replace the nullified CEC or, in the alternative, whether your Department is working with provincial authorities on the rapid development of equivalent replacement provincial regulation?

Subsequent to the above letter, Canada’s provincial governments responded to our inquiries regarding electrical law.  In response, we submitted a sixth question to your Department in our 21 January, 2014 letter, as follows:

Your Department is aware that we have contacted the regulatory authorities of the Provincial Governments to inquire as to whether they will comply with your November 28 Determination by discontinuing enforcement of provincial electrical laws.  While they may shortly alter course, every provincial government in Canada, without exception, is currently enforcing electrical law in defiance of your November 28 Determination. 

In this context, could you kindly advise whether your Department intends either to enforce the will of Industry Canada or to accept the will of the Provincial Governments?

As every provincial jurisdiction is enforcing the CSA’s Canadian Electrical Code (CEC) as law and as your Department is enforcing the CEC as law on Federal lands, and as these actions are in defiance of your November 28th Determination, clearly either these various governments must be brought into line with your Determination or you must be corrected to the will of these governments.  For the citizen, either the CEC is a law for which compliance is necessary or the CEC is a suggestion for which compliance is voluntary.  At present, your Department is affirming both of these contradictory positions.

Finally, we note that the CSA has been caught in a variety of legally questionable activities for which a series of thorough investigations would be in order.  The ambiguity with which your Department has cloaked the status and reporting of the CSA is no longer sustainable.  However inconvenient to your Department, a proper clarification of the status of the CSA and its legislative and regulatory productions, its reporting and its regulatory authority, is shortly becoming inevitable.

We await your responses to our inquiries.

[& signed]

Letter to the Minister of Public Works - 13 July 2014

Dear Minister Finley:

We note that the Department of Public Works and Government Services is responsible for the restoration work on the various buildings of Parliament in Ottawa. 

We are advised by multiple sources that the electrical installations of the Parliamentary restoration projects are being handled in compliance with the Canadian Electrical Code (CEC) and the Ontario Electrical Safety Code (OESC).  In specific example, the electrical restorations of the West Block and the Wellington buildings are deemed “compliant” with the CEC and the OESC.

As you know, the CEC is drafted by the Canadian Standards Association (CSA), a Federal agency reporting to the Minister of Industry via the Standards Council of Canada.  On November 28th, 2013, the Minister of Industry, James Moore, issued a Parliamentary Determination that CSA developed materials incorporated into provincial laws are merely “voluntary standards” whose character as independent of the law is unchanged by inclusion within the law.  The Minister’s Determination is that CSA materials such as the CEC / OESC are “referenced in regulations,” but they are not part of regulations per se.  Or more simply, the CEC and OESC are not enforceable as laws.

We are concerned that restoration work on Parliamentary buildings is being made “compliant” with CSA suggestions for which no compliance is legally required.  We appreciate that prior to the Minister’s November 28th determination, compliance with the CEC / OESC was generally considered to be a legal requirement.  In this context, a number of clarifications by your Department would be appropriate.

First, given that the CEC / OESC are no longer enforceable as laws, why is the Parliamentary restoration work being done in “compliance” with suggestions for which no compliance is necessary?

Second, what is the additional taxpayer expense incurred to achieve the current targets of unnecessary CEC / OESC “compliance?”

Third, will your Department issue guidance to the various Parliamentary restoration contractors to immediately halt all expenditures related to achieving CEC and OESC compliance, including particulars of installation, materials selection, and the entire process of inspection and approvals, in order to comply with the Minister of Industry’s November 28th Parliamentary Determination?

Your urgent response is appreciated.

[& signed]