The Standing Joint Committee for the Scrutiny of Regulations has the honour to present its

FIFTH REPORT

(Report No. 70)

            Pursuant to its permanent reference, section 19 of the Statutory Instruments Act, R.S.C. 1985, c. S-22,  and the order of reference approved by the Senate on March 15, 2001 and the House of Commons on March 27, 2001, the Joint Committee draws the attention of the Houses to the Assessor’s Rules of Procedure as enacted by SOR/87-65.

            The Pesticide Residue Compensation Act provides for the awarding of compensation where agricultural products are prohibited from being sold because they have been contaminated with pesticides in circumstances beyond the control of the producer. The Health of Animals Act and Plant Protection Act also provide that certain losses incurred as a result of the application and enforcement of these statutes may be compensated. In all cases, persons who are dissatisfied with the amount of a compensation award may appeal to an Assessor appointed under the authority of the Pesticide Residue Compensation Act. The Assessor’s Rules of Procedure (“the Rules”) establish the procedures to be followed in the bringing and conduct of appeals from these compensation awards.

A number of concerns relating to the Rules were first raised in 1988. These involve discrepancies between the English and French versions of the Rules, the need to clarify or augment certain provisions and other matters of drafting. The validity of these concerns was acknowledged both by the Acting Assessor of the day and the Department of Agriculture and Agri-Food.  Indeed, in November of 1988 draft amendments to the Rules were provided to the Joint Committee. These amendments were never enacted, however, and on March 29, 1990, amendments made to the Pesticide Residue Compensation Act by S.C. 1990, c.8 received Royal Assent. These statutory amendments provided for the appointment of an Assessor and Deputy Assessors only from among the judges of the superior, district or county courts of the provinces rather than also from among the judges of the Federal Court as was the case under the previous legislation. They provided as well for the transfer of the authority to make rules respecting appeals from the Assessor to the Governor in Council. Following the adoption of the statutory amendments, the Acting Assessor indicated that in light of these changes he considered the involvement of the Federal Court to be at an end.

            Although the 1990 statutory amendments came into force on February 2, 1992, an Assessor and Deputy Assessors have yet to be appointed from among the judges of the courts of the provinces. Moreover, the defects in the Rules remain uncorrected despite the fact that all concerned have agreed for some 13 years on the need for amendments. It is of course these defects in the present Rules that are the primary concern of the Committee.  Aside from the fact that the matters first raised in connection with the Rules in 1988 have yet to be addressed, however, developments over the past number of years have given rise to additional concerns.

            The first concern relates to the authority of judges of the Federal Court to continue to act as Assessor or Deputy Assessors. Prior to the coming into force of S.C. 1990, c.8 in 1992, section 14(1) of the Pesticide Residue Compensation Act provided:

 “14. (1) The Governor in Council may, from among the judges of the Federal Court and the superior courts of the provinces, appoint an Assessor and such number of Deputy Assessors as he considers necessary to hear and determine appeals from compensatory awards made under this Act or under any other Act to which this Part is made applicable, and, subject to this Act, may prescribe their jurisdiction.”

Under the authority conferred by this provision, the Governor in Council, by Order in Council P.C. 1972-12, appointed:

“the person from time to time holding the office of Associate Chief Justice of the Federal Court of Canada to be an Assessor and all those persons from time to time holding judicial office as members of the Federal Court of Canada – Trial Division to be Deputy Assessors to hear and determine appeals from compensation awards”.

Your Committee finds it doubtful that section 14(1) of the Pesticide Residue Compensation Act as it formerly read provided for the appointment of a succession of persons occupying a given position from time to time.  Section 14(1) referred to the appointment of an Assessor and Deputy Assessors “from among the judges of the Federal Court and the superior courts of the provinces”. In the opinion of your Committee, section 14(1) contemplated the appointment of particular persons as Assessor and Deputy Assessors rather than the designation of a position each holder of which would become Assessor and Deputy Assessors upon taking up the designated position. If your Committee is correct, Order in Council P.C. 1972-12 must be considered to have been ultra vires section 14(1) of the Pesticide Residue Compensation Act.  When Parliament confers a power of appointment on a delegate, it is expected that in exercising the power, the delegate will have due regard to the individual circumstances and qualifications of the person or persons that the delegate proposes to appoint to a position. This expectation is not met when the delegate simply provides for the appointment of any person who may happen to occupy a designated position at any point in time. The Committee’s view that absent a contrary indication in the enabling statute, a power of appointment is to be exercised in relation to a particular person or persons also finds support in the provisions of the Interpretation Act that apply to appointments. Sections 23 and 24 of that Act set out various rules applicable to the appointment of officers which are clearly predicated on a power of appointment being exercised in relation to identified individuals. It is the view of your Committee that in making Order in Council P.C. 1972-12, the Governor in Council did not properly exercise the discretion vested in him by Parliament.

Even if this were not so, there could be no authority for a succession of Federal Court judges to hear and determine appeals as Assessor after the coming into force of the amendments to section 14 of the Pesticide Residue Compensation Act in 1992.  In this regard, the Minister of Agriculture and Agri-Food has invoked section 44(a) of the Interpretation Act whichprovides that where an enactment is repealed and another enactment substituted for it, “every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person”.

Section 44(a) of the Interpretation Act can only apply in respect of a person who is validly acting under an enactment that is repealed and replaced. If the Committee is correct in its interpretation of section 14 of the Pesticide Residue Compensation Act, as it stood prior to S.C. 1990, c.8 and in its conclusion that Order in Council 1972-12 is ultra vires, it follows that there were no validly appointed Assessor and Deputy Assessors under the repealed enactment at the time of the coming into force of the new enactment.

This aside, section 44(a) of the Interpretation Act  has a limited application and may only serve to extend the authority of the person that is acting under the repealed enactment at the time of its repeal.  Section 44(a) will not support a continued exercise of authority under a repealed enactment by successors of the person exercising that authority at the time of the repeal.  Even if it is accepted that the person occupying the position of Associate Chief Justice in 1992 was validly appointed as Assessor,  the effect of  the coming into force of the amendments to the Pesticide Residue Compensation Act was to terminate the appointment subject only to section 44(a) of the Interpretation Act.  Section 44(a) allows for an orderly transition by permitting a person acting under the authority of a repealed provision to continue to act until a replacement is appointed under the new enactment.  There is no question in the minds of your Committee that at best, section 44(a) could only allow the person holding the position of Assessor in 1992 to continue to hear appeals. It did not and could not allow anyone else to do so.  Any other reading of section 44(a) of the Interpretation Act would be tantamount to allowing the use of this rule of interpretation to defeat the will of Parliament.

It is evidently the case that there have been a number of judges of the Federal Court who have acted as Assessor since the coming into force of the  1990 amendments to the Pesticide Residue Compensation Act  in 1992.  At the time these amendments came into force, the Associate Chief Justice of the Federal Court was the Honourable James Jerome.  Mr. Justice Jerome ceased to be Associate Chief Justice as of March 4, 1998. He was succeeded by the Honourable John Richard, who in turn was succeeded by the Honourable Allan Lutfy, who has been Associate Chief Justice since December, 1999.  While the Minister of Agriculture and Agri-Food has on several occasions indicated that he is relying on the advice given to him that the  Associate Chief Justice of the Federal Court has authority to act as Assessor by virtue of section 44(a) of the Interpretation Act, a full and detailed statement of the reasons supporting this advice has never been forthcoming despite requests for such a statement.  As currently advised, it remains the view of the Joint Committee that only a person lawfully appointed to the position of Assessor as of February 2, 1992  – the date of coming into force of S.C. 1990, c.8 –  could continue to act as Assessor by virtue of section 44(a) of the Interpretation Act.  All succeeding persons who have acted in this capacity have done so without lawful authority. Even if Mr. Justice Jerome had lawfully occupied the position of Assessor on February 2, 1992, a proposition that is doubtful for the reasons stated earlier, following his departure in 1998, there was no one who could lawfully occupy that position other than a person appointed under the authority of S.C. 1990, c.8. It is unfortunate that matters have reached this point. We would emphasize, however, that had the will of Parliament as expressed in the 1990 amendments to the Pesticide Residue Compensation Act been carried out in a timely manner, the present situation would have been entirely avoided. The responsibility for the current situation rests squarely with the Executive.

This brings us to the further issue of the failure to implement the 1990 amendments to the Pesticide Residue Compensation Act thatcame into force in 1992. It seems to your Committee that once legislation such as this is brought into force, it is incumbent on the government to take any action necessary to make the legislation effective within a reasonable time. Even if the situation under discussion were governed by section 44(a) of the Interpretation Act, that provision is clearly intended to function as a transitional provision, not as a means of prolonging the life of a repealed enactment indefinitely.

Your Committee finds it particularly disturbing that one reason for the failure to implement the 1990 amendments to the Pesticide Residue Compensation Act may have been the view, first within the Department of Agriculture and Agri-Food, and subsequently within the Canadian Food Inspection Agency, that these amendments were ill advised. Representatives of the Agency appeared before the Committee on April 30, 1998 to discuss the lack of progress in resolving the Committee’s concerns with regard to the Rules. In the course of the testimony given at this meeting the Committee was informed that

“[In 1992] we were working with the Department of Justice with a view to doing something about this amendment, which in 1988 was objected to by the Deputy Minister of Agriculture. He objected to it for the very reason that we continue to consider that the Federal Court is the best place for these appeals.”

Later the Committee was told:

“[T]he amendment was made because the Canadian Bar Association wished to have provincial court judges dealing with matters in their own province.  There was an objection, as I stated, by the Deputy Minister of Agriculture to this amendment, expressly stating that they are [sic] happy with the consistency and the experience over many years of the Federal Court judges, and objecting to that amendment.  However, it was made anyway.” 

It should go without saying that public officials responsible for administering legislation passed by Parliament are under a duty to ensure the legislation is implemented in its complete form.  Your Committee finds the suggestion that a deputy minister might seek to prevent the implementation of legislation after it has been brought into force for the reason that he does not agree with the wisdom of that legislation to be very disturbing.  Your Committee concludes that in this instance, the will of Parliament has been thwarted through the inaction of the Executive.  No claims of subsequent difficulties and complications can justify or excuse the delays in implementing  amendments enacted by Parliament more than a decade ago.

In a letter dated June 27, 2000, the Minister of Agriculture and Agri-Food advised that he had written to the Minister of Justice to request that she take steps to have judges of the superior, district or county courts of the provinces appointed as Assessor and Deputy Assessors in accordance with the 1990 amendments to the Pesticide Residue Compensation Act.  In his letter of          July 26, 2001, the Minister indicated that he would be following up this request in order to determine what progress had been made.  He also stated that:

“Given that administrative authority for the Pesticide Residue Compensation Act rests with the Minister of Health, I will request that the Minister of Health repeal the current assessor’s rules and that officials at the Canadian Food Inspection Agency immediately begin redrafting those rules in order that they may be ready upon the repeal of the existing rules.”

Most recently, the Minister informed your Committee on December 5, 2001 that revised rules had been drafted and forwarded to the Department of Justice for review.  It was anticipated that these revisions would take effect early in 2002, in conjunction with the appointment of judges from the courts of the provinces as Assessor and Deputy Assessors.

            Your Committee welcomes the announcement that the 1990 amendments to the Pesticide Residue Compensation Act   are to be implemented and that the defects in the Rules that were first identified more than 13 years ago are finally to be corrected.  It also wishes to express its appreciation to the Minister   of Agriculture and Agri-Food for his cooperation in furthering the resolution of these matters. This having been said, the prior failure, not to say refusal,         to implement the 1990 statutory amendments is cause for concern, particularly in light of the implication that the will of Parliament was deliberately ignored because senior public officials were of the opinion that the amendments were ill advised.

            In accordance with Standing Order 109 of the House of Commons, the Joint Committee requests the government to table a comprehensive response to this Report.  Your Committee anticipates that this response will include confirmation that the government has at last complied with the intent of Parliament as expressed in the 1990 amendments to the Pesticide Residue Compensation Act.

            A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 11, First Session, Thirty-seventh Parliament) is tabled in the House of Commons.

Respectfully submitted,

 Céline Hervieux-Payette, P.C.

 Gurmant Grewal, M.P.

 Joint Chairs