Public Review Violations

January 11th, 2015

All of the standards, regulations and legislation that the Canadian Standards Association (CSA) produces must legally be subjected to a 60 day public review. 

Why?  Well, the intention of a government mandated public review is to “provide all interested parties with an opportunity to become informed” about projects, processes or, as in this case, new legislation about to be passed into law.

Public reviews are fairly common and, with only minor variation, they’re handled quite uniformly across Canada.  A good example is here.

On January 5th, 2015, the CSA published a series of amendments to existing electrical law.  The CSA decided not to subject these legislative amendments to public review.  Or, more bluntly, the CSA decided to violate the law.  And they’ve been violating these public review laws in each new legislative amendment to electrical law since 2006.  And that’s really bad.

Regular readers won’t be surprised by all this.  The CSA leadership has a rather lofty opinion of itself, they seem to regard the rule of law as something drafted by CSA, but laws surely don’t apply to CSA.  And thus far there’s reason for their lofty views.  James Moore, the Minister of Industry, to whom the CSA ultimately reports, has declined to hold the CSA accountable for any of their legal indiscretions.

RestoreCSA decided to ask the CSA about these indiscretions.  We wrote to our friend Anthony Toderian, the man for whom a fansite is desperately needed.  We asked him to “kindly advise who within your organization is responsible for the CSA decision to violate the above noted Federal laws?”  We’ll report any responses that we receive (don’t hold your breath).

Not being especially confident of a coherent reply from CSA, we also wrote to their bosses at Industry Canada asking if they would correct the matter. 

We are quite confident however, that the CSA is profiting mightily by their violations of law.  If they complied with the law and held a public review for new legislation, then the public wouldn’t have to buy a copy of that legislation from the CSA.  By breaching the law, the CSA ensures that the only way the public can see the public laws that apply to them is by paying the CSA for the right to read those public laws.  And there’s a lot of revenue in restricting public access to public law.

Here’s what we wrote to Industry Canada:

[Dear Minister]

As you are aware, the Canadian Standards Association (CSA) is an Agency of the Federal Government reporting to the Minister of Industry via the Standards Council of Canada (SCC).

The SCC provides the following in paragraphs 6.3 and 6.6.2 of its document “Program Requirements for the Accreditation of Standards Development Organizations and for the Approval of National Standards of Canada”:

6.3 Equal Access and Effective Canadian Participation to the Standards Development Process by Concerned Interests

Participation in standards development shall be accessible to materially and directly affected persons and organizations.

6.6.2 Notice of Public Review

At an appropriate time during the development of a new standard or new edition and before final approval by the technical committee, the SDO shall issue a notice to the Canadian public that a public review will take place. The Canadian public shall be allowed a minimum of 60 calendar days to offer comments on the new standard or new edition. The notice shall indicate how to obtain a copy of the document and a deadline to submit comments.

The CSA is responsible for drafting Federal and Provincial electrical legislation, known as the Canadian Electrical Code (CEC).  The 23rd Edition of the CEC, being the latest version of this legislation, was released in its final form on January 5th, 2015. 

We are concerned that the latest CEC was published without the required 60 day public review.  That is, the CSA declined to release the entire CEC for public review as required, instead they released only a small percentage of the legislation, this portion being further segmented before individual portions were released at intervals of several weeks.  There are no Federal or provincial public review processes which qualify a partial release as a full release or which consider a segmented release as though it were a contiguous release.  By existing Federal and provincial standards therefore, the CSA release of the CEC is a material breach of the above noted legal requirements for public review.

It should be noted that a partial, segmented release, spread at unpredictable intervals over half a year, is incompatible with legal requirements of “equal access” and “accessibility.”  Further, the public cannot be expected to assess in review a highly complex regulatory document by accessing sporadically available and isolated excerptions therefrom.

The CSA sells access to Federal and provincial electrical laws at a rate of $180 per citizen.  If the CSA complied with legislated public review requirements, then the public would have access to public law without paying CSA.  It is arguable therefore, that the CSA is deliberately violating Federal laws with regard to public review in order to restrict public access to public law for the financial benefit of the CSA.

Given that the law requires a 60 day public review of the full and final CEC, and given that these public review requirements have not been complied with, there is cause to question the validity of electrical legislation whose drafting process was compromised by the material breach of the Federal laws which govern that process.

In this context, will Industry Canada order, instruct or mandate that its Agency immediately withdraw the CEC, pending the commencement and completion of the required 60 day public review process?  In the alternative, will Industry Canada decline to accept, treat, or pass by Order in Council, the latest CEC as law applicable on Federal lands?


[& signed]