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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 1 - Evidence, March 5, 2009

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OTTAWA, Thursday, March 5, 2009

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:53 a.m. for the review of statutory instruments.

Senator J. Trevor Eyton and Mr. Andrew Kania (Joint Chairs) in the chair.

[English]

The Joint Chair (Senator Eyton): I call the meeting to order.

[Translation]

Mr. Asselin: Mr. Chair, I do not know if we have been called to order or not. But I have no problem proceeding in disorder, if that is the way things are done here.

I do not think we have all the information. We do not know how long the seminar lasts. Nor do we know the dates on which we can travel. Last time, our legal counsel told us that there was a lot of work to do and that we had to catch up.

I agree that we should discuss the trip because it is a future project that is part of the committee's plans. But is it a priority at the moment? Is it something for the short-term?

Senator Hervieux-Payette: It is for July.

Mr. Asselin: In July? We did not have that information and it is more difficult to make decisions when we do not have all the information.

[English]

The Joint Chair (Senator Eyton): I assure all members that the meeting has begun. Mr. Lee has a motion.

Mr. Lee: I move that the proposed travel to Australia be referred to the steering committee, and the steering committee ask staff to do a workup and come back to the committee.

The Joint Chair (Senator Eyton): Are there questions or comments? The steering committee will need an idea of the expected number of members to travel. It cannot be 2 or 10 but can you give us an idea?

Mr. Lee: I suggest we do a workup for six members from the Senate and the House of Commons.

Senator Hervieux-Payette: We need two from the Senate because there would be a Conservative and a Liberal, and four from the other house.

Mr. Lee: We could do a workup that is expandable to seven members and shrinkable to five members. Is that all right?

The Joint Chair (Senator Eyton): Yes, thank you. When will the steering committee report? We suggest that it be at the next meeting of the committee.

SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989

(For text of document, see Appendix A, p. 1A:1.)

The Joint Chair (Mr. Kania): The Joint Chair (Senator Eyton): We now move to the fisheries regulations. We have a detailed package here. This item has obviously gone on for a long time and I will ask counsel to provide a summary.

Peter Bernhardt, General Counsel to the Committee: On February 1, 2007, the joint committee adopted its Report No. 78, a disallowance report containing a resolution that subsection 36(2) of the Ontario Fisheries Regulations be revoked. A copy of that report is in the material before members this morning. The position of the joint committee is that this provision is not authorized by the Fisheries Act in that it creates the offence of contravening the terms and conditions of a licence without express authority to do so having been granted by Parliament. The House of Commons did not adopt the disallowance report and, instead, referred it back to the committee. Those opposing adoption of the report relied on the fact that proposed new fisheries legislation before the House of Commons would have resolved the concern of the joint committee by including provisions creating the offence in the act itself of contravening a term or condition of a licence. An earlier disallowance report met a similar fate when the minister introduced proposed legislation immediately after the report was tabled. Unfortunately, neither of these bills received passage.

On November 29, 2007, yet another new fisheries bill was introduced — Bill C-32. Like its predecessors, it included the provision that a holder of a permit licence must comply with the conditions, which would have resolved the committee's problem.

Members of the joint committee had some doubt at the time, given past experience, that this bill meant a resolution was at hand. However, the committee decided to wait and see what would happen to the bill, and then have the matter brought back in the new Parliament. Members' scepticism was entirely justified because, yet again, the bill died on the Order Paper.

This bill was the sixth bill to be introduced to try to resolve the committee's concern. Each time, the bill failed to receive passage. Thus, here we are again this morning. I suppose a next step might be to write to the new Minister of Fisheries and Oceans to ask whether he expects the bill to be re-introduced yet again.

Mr. Lee: Although all members around the table probably have good reason to be skeptical of the degree of passion of the last two governments on this matter, since we are in a new Parliament — we have new executive, if you will, members on the committee and new context — I think we have to check with the minister to determine whether the government intends to introduce a bill to rectify this problem. If the government says yes, we are heading in the right direction.

We cannot do much more than ask the government to put a bill before the house. We can be advised later on how expeditiously the bill moves through the house but I do not think, at this point, we can expect more than the government to say that they will introduce a bill to correct the problem.

I suggest we write to the minister ``again'' and ask that counsel bring the matter back within 45 days. Let us give the minister that length of time to advise whether this government will introduce a bill for this purpose. Then we can consider our options, including another disallowance initiative, at that time.

[Translation]

Mr. Asselin: Mr. Chair, I do not think that Bill C-32 will come back intact. We had a chance to study the bill in committee and there was no consensus on it, even among government members. I remember that it was introduced by the Conservative Minister of Fisheries, but, even in committee, Conservative members did not see eye to eye with the minister on the bill. The bill was criticized by Canadians in general, and by associations and port authorities. Everyone was against it. I feel that the bill did not go very far because the minister wanted to fade away and die a natural death. I am not at all sure that we are going to see it again.

[English]

The Joint Chair (Senator Eyton): What are you suggesting?

[Translation]

Senator Hervieux-Payette: We are going to get the minister's answer: he heard the testimony, people let him know their views, that is what committees are for. So, once the committees have given their opinion, I feel that, if Bill does come back to you — and to the Senate too — it will have been revised as a result. I agree with my colleague Derek Lee: we should give the minister a little time to think about what kind of bill he wants now, if he wants one at all. In the meantime, I think I support Mr. Lee's idea: we should just go step by step and see how the regulations are handled under the legislation they need in order to go into effect. The only thing we could do differently is to set a deadline of the 30 days rather than 45. But I think that we really have to give the new minister the chance to make up his mind.

[English]

Mr. Hoback: I think that is appropriate. We have a new minister and we need to give the department time to respond. I think we should ask them in the same letter, if a new bill is not coming forward, how they will deal with this issue. Let us give them both options — either new legislation, or if new legislation is not forthcoming, an explanation of how they propose to deal with this set of regulations.

The Joint Chair (Senator Eyton): Are we agreed?

Hon. Members: Agreed.

Mr. Szabo: This matter will go on forever, as we all know. I am delighted to know we have a new minister but we do not have a new Department of Fisheries and Oceans who will deal with this item. Where we are hung up is that the government says it will introduce a whole new Fisheries Act — not only for this item, but for the whole shooting match, which makes it untenable that we will obtain any consensus, agreement and passage of a bill.

We have to consider requesting a bill specifically to amend the existing act to remedy the regulatory impasse here. We need to finish our job, too. There is only so much time. I am sorry but I think we need to request not only a specific bill to remedy the issue, but also to advise the minister that this committee has a responsibility that it has acted on already, I think twice at least. We must go to the house with the disallowance motion if there is no indication and commitment from the department to remedy the situation.

The Joint Chair (Mr. Kania): Are there any other comments?

Senator Moore: I agree with Mr. Szabo. If we have this long-time issue lumped in with maybe a new act that might be passed, it will go on and on. This item is a specific issue. It has been well delineated over the years and it should be dealt with specifically. I think Mr. Szabo's suggestion is correct.

The Joint Chair (Senator Eyton): Mr. Lee, do you want to change your motion?

Mr. Lee: It is consistent with my motion. We write to the minister, hear back from him and then we make our decision. We will not proceed, I presume, without writing to the minister.

Senator Moore: Exactly.

Mr. Lee: I think colleagues are urging that the correspondence with the minister be a bit firmer than routine.

Senator Moore: It needs to be more specific.

Mr. Lee: It also needs to refer to the potential for another disallowance.

The Joint Chair (Mr. Kania): Do we ask when and how it will be fixed?

Senator Moore: Also, we need to canvas the possibility of a specific piece of legislation.

The Joint Chair (Senator Eyton): My understanding as well from the discussion we have had, and from Mr. Szabo's comments, is that we are not looking for another response that says they are working on a new Fisheries Act and it will come along in due course. We do not want that answer. We want something more specific.

Senator Hervieux-Payette: I think we want action on this item. A new fisheries act might be ready for next year, maybe, but it will not happen overnight.

The Joint Chair (Senator Eyton): Are we all agreed?

Hon. Members: Agreed.

[Translation]

SOR/95-548 — MISCELLANEOUS AMENDMENTS REGULATIONS (DEPARTMENT OF AGRICULTURE AND AGRI-FOOD) 1995-2

(For text of document, see Appendix B, p. 1B:1.)

Jacques Rousseau, Legal Counsel: Mr. Chair, in his letter of August 1, 2008, the minister informs us that the promised amendments, except for the matter of the metric conversion, will be made as the joint chairs suggested in their letter of June 12, 2008 and will not have to wait until the complete review of the regulations is finished.

According to the minister, the promised amendments will be made using amending regulations that were being developed at the time of writing. We checked, and found that the promised amendments have not yet been made. As to the metric conversion, the minister indicated that, for reasons of economy, this will be done as part of the complete review. But he gives no indication of when that review may be finished.

Committee counsels' recommendation is to write to the agency to find out the status of the amending regulations and to ask if it is in a position to indicate when the revisions will be completed.

[English]

The Joint Chair (Mr. Kania): Are there any comments?

Mr. Lee: I thought this response from the minister was good. We are two out of three; and on the issue of the metric conversions, it is not clear in my head where the legal obligations are to flip over to metric. I thought we had converted years ago, but what has been suggested by counsel appears to be a good approach right now.

The Joint Chair (Senator Eyton): Are we agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): For these update letters, as a matter of course, do we want to include some time frame always of when we would like a response — 30 days, 45 days?

Senator Moore: Thirty days.

Mr. Bernhardt: With letters to a minister, by the time the letter hits a minister's office, is dealt with in a minister's office, filters its way down through the bureaucracy to the person who will draft the letter, receives the various approvals, filters its way back up through the bureaucracy, hits the minister's desk, is signed by the minister —

Senator Moore: Do not make excuses for the bureaucracy.

Mr. Bernhardt: I do not like to make excuses. As you know, I am not one to make excuses for the bureaucracy. On the other hand, I think the committee needs to be realistic. Please bear that process in mind. I do not suggest a particular time frame, an alternative time frame or anything like that. It is for members to decide what they want. I simply put out that comment as a caution.

The Joint Chair (Senator Eyton): We hear 30 days; do you want to make it 45? We are looking for a more immediate response.

Mr. Bernhardt: It is up to the committee. I raise that point as something to bear in mind.

Mr. Lee: We do not usually have a problem in terms of the timing of ministerial responses. When we have a problem, it is obvious and when we see it, we deal with it. I do not expect this minister will take a year to reply to our correspondence. It will come through the ordinary course, as counsel has suggested, and there is no reason to suggest otherwise at this point in time.

Mr. Bernhardt: For the benefit of new members, we have a standard bring-forward system here. In the case of a letter to a minister, that system will kick the file back out if a reply has not been received. Then the chair will draft a letter to the minister asking where the reply is.

Mr. Lee: To put it in street parlance, counsel knows when we are being jerked around, and he will bring it to our attention.

[Translation]

Mr. Asselin: The 30-day time frame seems reasonable to me. They have 30 days to reply to the second request. We already set a timeline that they did not comply with. We send a second request and we give them 30 days to reply to it. They have already had notice about it and they did not comply with the timeline in their first communication. We send a second request and set a 30-day time frame. They should reply. They already have the file on their desks at the agency.

[English]

Mr. Hoback: I agree; with thirty days, I think we should push them on this item. This is part of the reason why we have so many items to go through. The workload keeps building. Thirty days is reasonable, in my mind. Maybe I am wrong. In my mind, if they do not reply in 30 days, something else must be going on.

The Joint Chair (Senator Eyton): Of course, if we do not hear in 30 days, what are we to do?

Senator Hervieux-Payette: Nothing will happen.

Senator Moore: We can bring them in. They will like that.

Mr. Lee: I know the member wants to rise immediately in his caucus once the 30 days is up and castigate his minister. I am counting on him to do that. Do we have a commitment from the member?

Mr. Masse: To be clear, there is no statutory requirement for the minister to respond within a particular time period. Whether we have these situations as one-offs or as a policy is the bigger discussion. The reality is that we do not have a statutory response policy. We can only keep harassing them.

The Joint Chair (Mr. Kania): If we bring in disallowance, they will have to respond to us. We will ask them politely. For these things that have taken some time already, the committee must decide but I think we should push them more.

Senator Moore: I agree. In the letter, we can say, ``In consideration of the circumstances, the time that has passed, it would be appreciated if you could reply within 30 days.'' We can word it in a courteous fashion but include a message.

The Joint Chair (Senator Eyton): Are we agreed?

Hon. Members: Agreed.

SOR/2003-3 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS

(For text of documents, see Appendix C, p. 1C:1.)

Mr. Bernhardt: The provision in question, which is paragraph 36(5)(f) of the Fisheries Act, authorizes the Governor in Council to make regulations prescribing the persons who may authorize the deposits of deleterious substances in the absence of any other authority.

The relevant items of Schedule V of the regulations provide that, for Quebec, Saskatchewan and Alberta, a given official of the provincial government will be the authorization officer, if there is a written agreement between Canada and the province and if the minister has notified all operators of the agreement. If there is no agreement or if notice has not been given, authorization falls back to the regional director of environmental protection for Environment Canada.

The committee has concluded that this provision does not prescribe the persons who may authorize the deposit of a deleterious substance as the act requires. Under the terms of the items in question, the identity of this person depends on whether there is agreement and whether notice has been given. It turns on the existence of unspecified agreements and whether certain communications have or have not been made.

Therefore, while they have a rule for determining who it will be, it is not set out in the regulations; it is not prescribed by the regulations.

The Department of the Environment has asserted a contrary view. They say the approach does prescribe the officers because there are objective criteria that make it possible to identify the officer. The difficulty with that argument is that it is not what the act requires. The minister's July 4 letter claims the regulations definitively identify the officer. However, this is not the case because, by reading the regulations, it is not possible to tell who this person is.

However, the minister also indicates that he sees merit in identifying a single officer for each province, and states that amendments will be made to identify this officer. These amendments would resolve the committee's concern, although it is not known when they will be made. The minister said it is not anticipated that it will be during the current fiscal year.

Perhaps at this time, we can write to the department and ask whether they are in a position to indicate a specific time frame for making these amendments.

The Joint Chair (Senator Eyton): Are there any questions or comments?

Mr. Lee: I agree with counsel. It is not an old file. The department seems to have made some accommodation in considering the views of the committee. I think if we pursue the item within the framework suggested by the minister and counsel here, that approach would be satisfactory.

The Joint Chair (Senator Eyton): Are there any other questions or comments?

Hon. Members: Agreed.

SOR/2007-279 — LEGISLATIVE INSTRUMENTS RE-ENACTMENT REGULATIONS, NO. 1

SOR/2008-75 — LEGISLATIVE INSTRUMENTS RE-ENACTMENT REGULATIONS, NO. 2

SOR/2008-125 — LEGISLATIVE INSTRUMENTS RE-ENACTMENT REGULATIONS, NO. 3

SOR/2008-154 — LEGISLATIVE INSTRUMENTS RE-ENACTMENT REGULATIONS, NO. 4

SOR/2008-189 — LEGISLATIVE INSTRUMENTS RE-ENACTMENT REGULATIONS, NO. 5

(For text of documents, see Appendix D, p. 1D:1.)

Mr. Bernhardt: In 1996, the committee reported that a number of federal regulations had been published in both official languages but were made in only one official language. This was contrary to section 133 of the Constitution Act, 1867. In that report, the committee recommended that the government take steps to identify all the regulations that are considered in force, and that fell into this difficulty, that have not been properly promulgated and, therefore, should be re-enacted.

The committee found the government's response to that report unsatisfactory and it continued to pursue the matter. Finally, in 2002, the Legislative Instruments Re-enactment Act was introduced. It passed after being amended to include improvements suggested by this committee. It is all explained in a note that members have before them.

The act sets out three mechanisms to rectify the problem. Those mechanisms are explained in the three bulleted points at pages 2 and 3 of the note. The Minister of Justice was also required to conduct a review of the implementation and authorization of the act and table a report in both houses by June 13, 2008. That report listed 3,000 instruments that were identified as having been enacted in only one official language but that were not re-enacted because they were no longer in force, were obsolete or no longer had an impact on present rights and obligations.

Finally, five legislative instruments re-enactment orders were made between December 2007 and June 2008. These orders are listed on the agenda. They re-enacted 259 instruments that had originally been enacted and published in only one official language. For the most part, these instruments deal with matters concerning lands and property. The intent is to ensure the validity of all measures taken under them on the assumption that, at the time, they were valid. The oldest of these instruments goes back to 1873. The most recent was originally enacted in 1969.

For reasons of economy, these five re-enactment orders have not been reproduced in the materials for members this morning. The orders are here if anyone has an interest in them. These are the 259 re-enacted instruments.

In conclusion, the issue is finally wrapped up after some 18 years since the committee first reviewed it. It clearly represents a significant accomplishment by the committee.

The Joint Chair (Senator Eyton): That was a good report. Are there questions or comments?

Mr. Lee: Rarely do we have a chance to celebrate full and final conclusion of an initiative begun by the committee. I want to ensure that we accorded appropriate recognition of the work of our counsel, Mr. Bernhardt; previous counsel, Mr. Bernier; other staff that I have not mentioned; and members around the table. This item was a massive remediation effort. Ultimately, the committee secured the cooperation of the government that included some housecleaning. These statutory instruments went back to the beginning of our country. Achieving resolution in the form of these corrections has likely pre-empted potentially costly litigation that now will not take place.

It might not be an historic moment but it was a major exercise. Our committee staff should be congratulated.

The Joint Chair (Senator Eyton): Well said.

Mr. Lee: The Justice Department put a great deal of work into it as well, and they should have credit.

The Joint Chair (Senator Eyton): Are there other comments?

[Translation]

Mr. Rousseau: I would like to add one brief comment, since I was the one who started this file. I looked at the regulations and saw that there was a drafting error. I wanted to know whether the error was in the original or if it came from the version published in the Gazette. That makes a difference, because, if it was in the original, the regulations have to be amended. That is when we noticed that no original version had actually been passed, the French version in this specific case. That is how this started. I also have to say that it was discovered at some point that the Income Tax Regulations had not been passed in both official languages. So for years, we have had tax regulations that were not constitutional, that had not been passed according to the Constitution of Canada.

[English]

Senator Hervieux-Payette: In support of Mr. Lee's comments and knowing that this work is so burdensome, I thank the staff for their patience and good work.

[Translation]

SOR/2003-314 — REGULATIONS AMENDING THE ATLANTIC FISHERY REGULATIONS, 1985

(For text of document, see Appendix E, p. 1E:1.)

Mr. Rousseau: This matter deals with the drafting of the regulations. Counsel noticed that one of the sections of the regulations applies ``around the Magdalen Islands.'' In its letter of September 20, 2007, the department explained that the waters in question were those halfway from the islands to the shores of Quebec, New Brunswick, Newfoundland and Labrador, and Prince Edward Island. The department even offered to provide the exact coordinates that define those waters.

When committee counsel suggested including those specifics in the regulations, the department replied, in a letter of October 17, 2008, that no fishing for shellfish takes place in the waters that could be considered near or adjacent to the shoreline borders of the provinces in question, so there is no danger of a boundary dispute breaking out.

Even so, it is difficult to accept that this justifies such an imprecise drafting of the regulations when it is quite possible to describe the fishing zone in question precisely. For that reason, committee counsel consider that the department's response is not satisfactory. If the committee is in agreement, counsel recommend writing to the department once more to ask for the fishing zone to be precisely defined.

[English]

Senator Hervieux-Payette: I support the recommendation of counsel.

The Joint Chair (Senator Eyton): Are there other questions or comments?

Mr. Anderson: I am not regularly on the committee but it seems these two areas are completely different; they do not contact each other. I am not sure we need to spend much time insisting that there be definition of each area when they do not come into contact. If one shellfish fishery is not near the other one, there is no reason to be put a defining line on ``around the Magdalene Islands.''

Mr. Lee: My thinking was closer to Mr. Anderson's thinking. I was curious about the nature of the regulations that needed the reference to a boundary or a location. If those regulations are to govern fishers, their boats, et cetera, that emanate from the Magdalene islands, then I think ``around the Magdalene Islands'' is sufficient if the fishery is shellfish only. If these regulations were to apply to boats that might pass through the area and past the Magdalene Islands, but never stopping, the people on board would not know whether they were in an area where a regulation applied. I would then have more concern. I do not want to prolong the discussion but if the nature of the regulations applies only to boats and fishers in the Magdalene Islands, then I do not have as much concern. If it applies to other vessels and people, then I have concern.

Mr. Bernhardt: We are dealing with gear restrictions and close times for fishing. If I am a fishermen and I know the waters around the Magdalene Islands have a particular close time, presumably I would want to know those waters with some exactitude so I would know if I was in them and bound by the close time. The department said the waters extend to the mid-point. Why does the regulation not say that it is the mid-point instead of saying, around the islands this is the close time. If I am pinched by the Department of Fisheries and Oceans for being around the islands, I suggest that regulation is presumptively more than a little vague.

Mr. Lee: Okay. I will go with counsel on that item.

The Joint Chair (Senator Eyton): It is easy to be precise and avoid an unfortunate precedent. Are members agreed?

Hon. Members: Agreed.

SOR/2004-221 — UNITED NATIONS IRAQ REGULATIONS

(For text of document, see Appendix F, p. 1F:1.)

The Joint Chair (Mr. Kania): Another item under reply unsatisfactory is the United Nations Iraq Regulations.

Mr. Bernhardt: The United Nations Act authorizes the making of regulations to implement UN resolutions. Section 3 of these regulations was adopted to give effect to paragraph 27 of Security Council Resolution 1546 of 2004. Subsection (1) of section 3 states that no attachment may be laid against petroleum originating in Iraq. Subsection 3(2) says that this immunity ``does not apply in respect of the enforcement of a final judgment arising out of a contractual obligation entered into after June 28, 2004, by the Government of Iraq. . . .''

The difficulty is that paragraph 27 of the UN Resolution sets the key date as June 30, not June 28. The department has tried to justify this difference on the grounds that the Security Council meant whatever date the provisional government in Iraq assumed power; that date was not definitively known by the Security Council; and other paragraphs in the resolution use June 30. This is all well and good, but the particular provision they purport to implement gives a specific date and that is June 30, not June 28.

We dug around a bit and found that in other countries — for example, in the U.K. — the domestic legislation that was enacted to implement paragraph 27 of the resolution does indeed use June 30 as the definitive date. It can hardly be argued here that to do otherwise is required in order to be consistent with the UN resolution.

The committee also asked whether the regulations were applied in respect of judgments arising out of obligations entered into on June 29 and June 30, 2004. Not surprisingly, the department indicates it has absolutely no idea. The problem then is that there is no way to know for sure whether this question might be moot. I suggest it is probably moot.

The likelihood of someone being denied attachment against oil originating in Iraq, based on immunity in respect of the enforcement in a final judgment in a court in Canada arising out of a contractual obligation entered into by the Iraqi government on either June 29 or 30, 2004, is remote. At the same time, on the substance of the argument, the response is clearly unsatisfactory.

The question then is what does the committee wish to do? I suggest that one possibility might be to write back to the minister, pointing out that the argument advanced by his department does not hold water, but indicating that, given that it seems likely that, as a practical matter, there is no consequence here, the committee considers the matter at an end.

The Joint Chair (Senator Eyton): Agreed?

Mr. Lee: I want to ask counsel this question, which is a kind of bread and butter issue: This issue is not only a question of us picking a different date in one part of the instrument, and it is not a question of it being a random date or a mistaken date because June 28 was the actual date the new sovereign government in Iraq was created.

The real question is whether the June 28 date is ultra vires. As counsel described it, our ability to enact a date comes out of the date selected in the UN resolution. However, as I read the UN resolution, as explained by counsel, the resolution does not refer to the date alone. The words around it describe it as not after June 30.

Mr. Bernhardt: The operative date then becomes, in effect —

Mr. Lee: Not after June 30. In fact, the date in our instrument is not after June 30; it is June 28. On a technical basis, can it be said that since the date we have used is not after June 30, it is compatible with the UN resolution and therefore not ultra vires?

I am only saying that is arguable. Depending on what counsel thinks about this point, maybe if we fold that technicality into the potential that this item may be a moot issue, we may feel better about moving on from it. Can counsel reply to that suggestion?

Mr. Bernhardt: One must try to ascertain what the Security Council intended would be the case for June 29 and June 30, 2004. I think it is clear that they intended that the immunity apply for those two days.

Mr. Lee: Even though when they formed their intention, they believed the date would be June 30, and what happened in real time was that the date was June 28, so they never had a chance to live out their intention — facts on the ground, for security reasons, changed it.

I will leave it. Maybe members do not want to pursue this issue of how many angels are sitting on the head of the pin.

The Joint Chair (Senator Eyton): Counsel has made a recommendation. Are we agreed?

Mr. Lee: I can agree with counsel's recommendation.

Hon. Members: Agreed.

SOR/2002-301 — INTERPROVINCIAL MOVEMENT OF HAZARDOUS WASTE REGULATIONS

(For text of document, see Appendix G, p. 1G:1.)

Mr. Bernhardt: When preparing for the meeting yesterday, it came to light that there was a problem with the materials for this item. In particular, the second page of the department's March 17 reply is missing. In the English translation of this letter, page 3 has been renumbered as page 2, which is an error; it seems that the actual page 2 was not translated. The problem is a little clearer to see in the original of the French letter, where the page is simply not there at all.

I apologize for not recognizing this problem sooner. With members' indulgence, I propose holding the file over until all the relevant documents can be submitted in their entirety. The page that is missing is the heart of the response.

Hon. Members: Agreed.

Mr. Young: Did a member of this committee notice that problem? If they did, I want to recommend they go to Australia.

Mr. Bernhardt: We noticed it but unfortunately, a little too late to do anything about it.

The Joint Chair (Senator Eyton): We will change the heading to ``Material Unsatisfactory,'' as opposed to ``Reply Unsatisfactory.''

[Translation]

SOR/2001-512 — CANADA BUSINESS CORPORATIONS REGULATIONS, 2001

(For text of document, see Appendix H, p. 1H:1.)

Mr. Rousseau: As the note prepared for the committee indicates, committee counsel raised 45 points in this file. Amendments were promised for 43 of those points. Suggested amendments to section 54 to 68 and to schedules 3 and 4 of the regulations have been passed, as the committee will be able to see when it looks at SOR/2008-315. These amendments resolve the questions in points 16, points 18 to 33, and point 43, points that had been raised in the letter of April 16, 2007.

The note prepared for the committee summarizes the two points for which the correspondence has not yet resulted in everything being resolved. On point 14, section 47(b) of the regulations states that if the corporation requests a shareholder to provide the proof referred to in section 137.1(4) of the Act, the shareholder must provide the proof within 21 days ``after the corporation's request.''

The question then becomes how the shareholder can determine the exact date of the corporation's request. The department proposes to amend the provision to indicate that the proof is required 21 days after the date on which the corporation's request is received by the shareholder for all methods of communication other than by mail.

With respect to a request that is sent by mail, the department proposes to amend section 47(b) to require that the shareholder provide the proof within 21 days after the date on which the corporation's request is mailed to the shareholder. However, despite these amendments, an uncertainty remains because it is then necessary to say how the shareholder can determine the exact date of mailing.

Committee counsel feel that there are two ways to indicate clearly when the 21-day period begins. First, section 47(b) could provide that the proof is required within 21 days from the date of the postmark. Second, the regulations could require that the request form be dated and that the proof is required within 21 days after the date indicated on the request itself.

As to point 17, committee counsel feel that sections 54(2), 55 and 56 of the regulations, which were replaced when SOR/2008-315 was passed, exceed the statutory authority to prescribe the format of a form of proxy. Section 54(2), for example, created a presumption about the date of the mailing of a proxy by the person making the request.

In its letter of September 26, 2007, the department proposed amending the sections to remove the references both to a deemed date and to any substantive rules.

In the amendments brought about by SOR/2008-315, national instrument 51-102, established by Canadian securities authorities, has been incorporated by reference. While the rule on the deemed date is not contained in NI 51- 102, it does contain substantive rules similar to those currently embodied in sections 55 and 56 of the regulations, such as, for example, the authority that may be granted to a proxy.

In its letter of July 2, 2008, however, the department insists that the rules are necessary in order to harmonize various federal and provincial requirements on forms of proxy. If that is the case, the solution is to ask Parliament to amend the Act so that it provides the regulatory authority to do so.

In that regard, the department stated in the same letter that it would take the next available opportunity to review the statutory provisions in order to clarify them and to ensure that the statutory authority is clearly established.

Counsel's recommendation is to write to the department again suggesting that the regulations be clarified with respect to point 14 and that the Act be clarified with respect to point 17.

In the latter case, the department suggested doing this on the next available opportunity to review the statutory provisions. That means that a long time could go by before the review is complete. It would therefore be appropriate to ask the department for a more precise indication of when this will be done.

[English]

The Joint Chair (Senator Eyton): Are there any further recommendations, questions or comments?

Mr. Lee: I agree with counsel: We are still working on this issue and we have to go back to the department both with respect to the creation of the rules governing proxies and with respect to the running of the 21-day time period. However, as I read this material, it struck me as odd to have such imprecision in an area of law that I think of as comprehensive and clear.

Is it possible that we are not the only game in town; that departmental regulation drafters are not the only controllers of the procedure on proxies? I want counsel to address that matter in correspondence with the department, if possible. What may be happening is that there are other participants; that is, the corporate charter and the corporate bylaws, and the legal requirements of securities regulators in whatever provinces are regulating securities and the use of proxies in the circumstances for shareholders.

Is it possible that some of these gaps and imprecision in our regulations have been covered either by those two other areas or even by an evolving common law involving proxies? I think counsel understands my meaning. If counsel can inquire if there is another set of rules out there that rectify these gaps that we have spotted, that information might help in the resolution.

[Translation]

Mr. Rousseau: Agreed.

[English]

The Joint Chair (Senator Eyton): Are there any other questions or comments? Are we agreed?

Hon. Members: Agreed.

SOR/2003-196 — NATURAL HEALTH PRODUCTS REGULATIONS

(For text of documents, see Appendix I, p. 1I:1.)

Mr. Bernhardt: Here we raised 26 points in connection with the regulations. As the note indicates, these points chiefly concern matters of drafting, discrepancies between English and French versions and a need for clarification.

The department's reply promises amendments to address 16 of these points. They are listed in the note. In addition, it is suggested that the reply on point 26 can be taken as satisfactory.

That leaves nine remaining points, each of which is discussed in the note. These points generally deal with matters of drafting and clarification. If I was to highlight two of them, it would be points 4 and 6, which are somewhat more substantive. Point 4 concerns the desirability of including in the regulation themselves guidelines, principles and rules that are now set out in an administrative document. Point 6 concerns a provision similar to what we saw in the last file, which is uncertainty concerning the date by which review commences of a refusal to issue or amend a licence.

I do not necessarily propose to walk through each of these in turn, given their fairly mundane nature. If members have questions, I will go through a particular point. Otherwise, I suggest that our recommendation is to write again on each of those nine points.

Mr. Lee: I am sorry to burden the record. I agree with counsel that these things are too tedious to go through but I have serious concerns. I am not so sure I agree with counsel with respect to point 14.

However, I do not want to go through the concerns here. I will have an informal conversation with counsel about all these little mundane things after the meeting and that will serve the purpose. Therefore, I agree with counsel: We should continue dealing with the department.

Hon. Members: Agreed.

[Translation]

SOR/2006-260 — PEST CONTROL PRODUCTS INCIDENT REPORTING REGULATIONS

(For text of document, see Appendix J, p. 1J:1.)

Mr. Rousseau: Mr. Chair, seven points were raised in the letter sent by committee counsel on June 29, 2007.

In its letter of March 18, 2008, the department promised amendments in the first paragraph of point 2, point 3, the second paragraph of point 4, and points 5 and 6. For these last two points, however, we should still ask the department to clarify the amendments it undertakes to make.

Committee counsel feels that the department has given a satisfactory reply to point 1 and to the first question asked in point 7. However the department has not responded to the request for information made in the first paragraph of point 4 and at the end of point 6.

Committee counsel also feel that the reply given for the second paragraph of point 2 and the second question in point 7 are unsatisfactory.

Point 2 deals with a drafting matter. Counsel pointed out that the terminology used does not seem to be consistent. The department replied that the terminology is different because a distinction needs to be made between a risk and a danger. The department did not explain the distinction it sees between the two, except to say that it is a matter of degree. But both Robert and the Canadian Oxford Dictionary use the work ``danger'' to define a ``risk.'' It would be appropriate to ask the department to precisely identify the distinction it is making between the two words.

In point 7, it seems that the department perhaps did not understand the question that committee counsel asked. We are trying to determine under what authority the Governor in Council can require applicants for registration and registrants to keep records of pest control products that are not their own. The department replied that the requirement is to keep records of pest control products that have the same active ingredient as the applicants' and registrants' products.

The department explains that, under the Act, the active ingredients are themselves pest control products. That is true, but it does not mean that you can impose a regulation requiring records to be kept of pest control products or of active ingredients other than those products or ingredients that belong to applicants for registration or registrants specifically.

Paragraph 67(1)(r) of the act authorizes the Governor in Council to make regulations, and I quote:

Respecting the keeping of records by registrants, manufacturers, importers, exporters, distributors and users of pest control products in relation to the products that they manufacture, store, import, export, distribute, use or dispose of and the requirements for making those records available to the minister.

It is difficult to see how this regulatory authority can be construed as requiring the keeping of records on products manufactured by other manufacturers, simply because the two manufacturers use the same active ingredient.

If the committee is in agreement, counsel will write to the department to seek clarification on points 5 and 6, to obtain the answers that are still missing and to ask the department to re-examine the points for which their reply was unsatisfactory.

It would also be appropriate to ask the department exactly when the promised amendments will be made. In its letter of January 19, 2009, the department tells us that it will be done in the new year. I assume this means 2009, but it would be wise to find out for sure.

[English]

The Joint Chair (Senator Eyton): Are there questions or comments?

[Translation]

Senator Hervieux-Payette: I agree with counsel's proposal.

[English]

The Joint Chair (Senator Eyton): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2006-330 — GOLDEN NEMATODE COMPENSATION REGULATIONS

(For text of document, see Appendix K, p. 1K:1.)

Mr. Rousseau: Counsel raised two drafting matters in this file. The department provided reasons why it feels that it would not be appropriate to change the way in which the regulations are drafted. Although the explanations they provide are not always easy to follow, they seem generally satisfactory.

In addition, as the department indicates, this compensation program is now complete and the regulations will be repealed. If the committee is satisfied, this file can be closed.

[English]

The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/95-500 — POWER LINE CROSSING REGULATIONS

(For text of document, see Appendix L, p. 1L:1.)

Mr. Rousseau: This file also deals with a drafting matter in the French version. The National Energy Board informs us that the correction will be made, and that it will do so if we find that proposal satisfactory. In counsels' opinion, it is.

If the committee is in agreement, counsel will confirm that the proposed amendment will correct the problem and they will monitor the file in the usual way and keep the committee informed of further progress.

[English]

The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2003-218 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

(For text of document, see Appendix M, p. 1M:1.)

Mr. Rousseau: In this file, the department undertook to amend the Criminal Code. The amendment has been made and has been in effect since May 29, 2008. The department also undertook to correct several drafting problems and one problem dealing with the framing of a discretionary authority.

The department informs us that the amendments should come into effect at the beginning of 2009. We checked, and they are not yet in effect. It would be appropriate to write to the department to obtain confirmation that matters are proceeding as scheduled.

[English]

The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.

SOR/2003-219 — PASSENGER INFORMATION (CUSTOMS) REGULATIONS

(For text of document, see Appendix N, p. 1N:1.)

SO/2006-146 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

SOR/2008-219 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of document, see Appendix O, p. 1O:1.)

SOR/2007-196 — PROCLAMATION AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING AGENCY PROCLAMATION

(For text of document, see Appendix P, p. 1P:1.)

Mr. Bernhardt: At times in the past, the committee has adopted the practice of taking the instruments under Action Promised, Action Taken and Statutory Instruments Without Comment as three groups. We are prepared to go through each individually but, if members prefer, we can continue with that practice.

The Joint Chair (Senator Eyton): The usual practice was satisfactory and we should continue with it.

Mr. Bernhardt: Under Action Promised, a total of 10 amendments are promised in connection with these instruments. Four of these amendments were promised previously to the Canada Grain Regulations but were omitted from the most recent amendment. The undertaking to make these amendments has been reiterated. In addition, SOR/ 2008-219 made 10 amendments to the Canada Grain Regulations that had been promised previously to the committee.

C.R.C. c. 1191 — RAILWAY GRADE SEPARATIONS REGULATIONS

(For text of document, see Appendix Q, p. 1Q:1.)

SOR/2003-240 — REGULATIONS AMENDING THE TEMPORARY IMPORTATION (TARIFF ITEM NO. 9993.00.00) REGULATIONS

(For text of document, see Appendix R, p. 1R:1.)

SOR/2008-17 — ORDER AMENDING THE BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER

(For text of document, see Appendix S, p. 1S:1.)

SOR/2008-23 — REGULATIONS AMENDING THE DESIGNATED PROVISIONS (CUSTOMS) REGULATIONS

(For text of document, see Appendix T, p. 1T:1.)

SOR/2008-284 — REGULATIONS AMENDING THE SPECIAL SERVICES AND FEES REGULATIONS

(For text of document, see Appendix U, p. 1U:1.)

Mr. Bernhardt: The items under Action Taken make seven requested amendments. As well, the Railway Grade Separations Regulations file can be closed because there is agreement that these regulations have ceased to have effect.

SI/2008-34 — ORDER FIXING MAY 1, 2008 AND JULY 2, 2008 AS THE DATES OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-35 — ORDER FIXING APRIL 4, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-36 — ORDER FIXING APRIL 14, 2008 AS THE DATE OF THE COMING INTO FORCE OF SECTION 10 OF THE ACT

SI/2008-41 — ORDER FIXING JULY 2, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-42 — ORDER FIXING APRIL 18, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SOR/2005-48 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DIFFERENTIAL PREMIUMS BY-LAW

SOR/2006-119 — REGULATIONS AMENDING THE MANITOBA FISHERY REGULATIONS, 1987

SOR/2006-311 — INSIDER REPORTS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/2007-267 — INTEREST RATES (AIR TRAVELLERS' SECURITY CHARGE ACT) REGULATIONS

SOR/2008-37 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2008-44 — REGULATIONS AMENDING THE RECEIPT AND DEPOSIT OF PUBLIC MONEY REGULATIONS, 1997

SOR/2008-46 — REGULATIONS AMENDING THE EXPORT DEVELOPMENT CANADA EXERCISE OF CERTAIN POWERS REGULATIONS

SOR/2008-48 — RETURNABLE BEVERAGE CONTAINER (GST/HST) REGULATIONS

SOR/2008-78 — REGULATIONS AMENDING THE PROOF OF ORIGIN OF IMPORTED GOODS REGULATIONS

SOR/2008-79 — E.S. FOX LIMITED REMISSION ORDER

SOR/2008-95 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (STONE)

SOR/2008-98 — REGULATIONS AMENDING THE MANITOBA FISHERY REGULATIONS, 1987

SOR/2008-100 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1541 — SCHEDULE F)

SOR/2008-101 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1528 — SCHEDULE F)

SOR/2008-103 — ORDER AMENDING SCHEDULE 1 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT (NISGA'A NATION)

SOR/2008-105 — BY-LAW AMENDING CERTAIN EXEMPTION FROM DEPOSIT INSURANCE BY- LAWS MADE UNDER THE CANADA DEPOSIT INSURANCE CORPORATION ACT

SOR/2008-106 — ORDER AMENDING THE APPROVED BREATH ANALYSIS INSTRUMENTS ORDER

SOR/2008-107 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2008-108 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1535 — SCHEDULE F)

SOR/2008-110 — ORDER AMENDING SCHEDULE III TO THE FINANCIAL ADMINISTRATION ACT

SOR/2008-117 — DESIGNATED PUBLIC OFFICE HOLDER REGULATIONS

SOR/2008-127 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2008-128 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2008-129 — ORDER AMENDING PART III OF SCHEDULE VI TO THE FINANCIAL ADMINISTRATION ACT

SOR/2008-130 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT

SOR/2008-131 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2008-132 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2008-133 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2008-134 — ORDER AMENDING PART II OF SCHEDULE VI TO THE FINANCIAL ADMINISTRATION ACT

SOR/2008-147 — ORDER AMENDING THE ORDER DECLARING AN AMNESTY PERIOD (2006)

SOR/2008-156 — NAME USE (FOREIGN BANKS) REGULATIONS

SOR/2008-158 — NAME USE (AFFILIATES OF BANKS OR BANK HOLDING COMPANIES) REGULATIONS

SOR/2008-159 — REGULATIONS AMENDING THE ENTITY ASSOCIATED WITH A FOREIGN BANK REGULATIONS

SOR/2008-160 — REGULATIONS AMENDING THE EXEMPTION FROM RESTRICTIONS ON INVESTMENTS (BANKS, BANK HOLDING COMPANIES AND FOREIGN BANKS) REGULATIONS

SOR/2008-161 — REGULATIONS AMENDING THE INFORMATION TECHNOLOGY ACTIVITIES (FOREIGN BANKS) REGULATIONS

SOR/2008-163 — MATERIAL BANKING GROUP PERCENTAGE REGULATIONS

SOR/2008-165 — REGULATIONS AMENDING THE FOREIGN BANK REPRESENTATIVE OFFICES REGULATIONS

SOR/2008-166 — REGULATIONS AMENDING THE CHARGES FOR SERVICES PROVIDED BY THE OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS REGULATIONS 2002

SOR/2008-167 — PRESCRIBED GROUP OF CONSUMERS REGULATIONS

Mr. Bernhardt: Under Statutory Instruments Without Comment, 44 instruments have been reviewed and found to comply with all the committee's scrutiny criteria. For the information of new members, the Statutory Instruments Without Comment are not reproduced in the materials given to members. We simply list them. However, copies are always brought to the meeting if a member wishes to reference them.

The Joint Chair (Senator Eyton): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): We will move on to other business. Members have a copy of a draft budget before them that must be approved in order to grant the funds from now until the end of the fiscal year, March 31, 2009. It is a modest budget designed primarily to cover the costs of food. Are there questions or comments? Seeing none, all those in favour?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): The clerk has mentioned that we need to fill our steering committee of two joint chairs, two vice-chairs; and who else?

Marcy Zlotnick, Joint Clerk of the Committee: A member from the opposition and from the Senate.

Mr. Szabo: The steering committee needs a Bloc Québécois member from the House of Commons and a Liberal member from the Senate. Do we have any volunteers?

Senator Hervieux-Payette: I am the volunteer from the Senate.

Mr. Szabo: Do you want to be on the steering committee?

Senator Hervieux-Payette: Yes.

Mr. Szabo: We have Ms. Gagnon from the Bloc.

The Joint Chair (Senator Eyton): The steering committee has at least one piece of business to complete before next week's meeting.

I ask Mr. Bernhardt to talk about some of the administrative office changes that are in the wind so that all members are informed.

Mr. Bernhardt: As I mentioned at the organization meeting, we are in the process of relocating, which involves a physical move from Senate space, Senate computer networks, and Senate administration and accommodation, to facilities of the Library of Parliament. That issue was an ongoing one in the last Parliament. There was some involvement by the chair to ensure that the move ran smoothly.

I was informed this week that the proposed date to move is Easter, which is considerably in advance of what I had been led to believe. The move is also in the middle of a session, which raises issues. I had understood that it would take place over the summer, which would be more convenient in terms of preparing materials for the committee. There might be issues to take up at the next steering committee meeting and communicate back to the committee.

We also have the issue of staffing requirement. We have a position that needs to be filled, and the committee needs to be assured that staffing does not become bogged down in various bureaucratic niceties.

The Joint Chair (Senator Eyton): Do you require any support or action from this committee?

Mr. Bernhardt: Perhaps the steering committee we will develop something and go from there.

The Joint Chair (Senator Eyton): In the past, we have protected Mr. Bernhardt and his counsel jealously because we believe they represent a unique value and association with the committee. We have asserted ourselves before and, if we have to assert ourselves again, we will be happy to do so.

The Joint Chair (Mr. Kania): Is there a motion for adjournment?

Mr. Dreeshen: I so move.

(The committee adjourned.)

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