The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:37 a.m. for the review of statutory instruments.
EVIDENCE
[Recorded by Electronic Apparatus]
Thursday, November 6, 1997
• 0837
The Standing Joint Committee of the Senate and the House of Commons
for the Scrutiny of Regulations met this day at 8:37 a.m. for the
review of statutory instruments.
Senator Céline Hervieux-Payette and Mr. Derek Lee (Joint Chairmen ) in the Chair.
[English]
The Joint Chairman (M. Derek Lee (Scarborough—Rouge River, Lib.)): This morning we will first deal with the routine business and then proceed to the standard document dealing with matters raised by counsel.
The first item on the agenda is the committee budget. Senator Hervieux-Payette and I have had an opportunity to look through it. You have a copy of it before you. We would be looking for a motion to adopt the budget and to submit it for approval.
Mr. White: With regard to the allowance for attendance at conferences, can someone indicate whether there are any conferences planned at this time or whether this is just an estimate, and what type of conferences have been attended in the past?
The Joint Clerk of the Committee (Mr. Tõnu Onu): That was included because from time to time we do receive invitations to attend conferences. There is nothing specific at this time, but I thought that we would include a small item in case we do receive such an invitation so that we would not have to return to the Senate Committee on Internal Economy and the House of Commons Board of Internal Economy for a supplementary estimate. It is a relatively small amount given that there is not that much time left before the end of the fiscal year. It is sort of a just-in-case item. We have nothing definite in mind at this point.
Mr. White: Can you give some examples of the types of conferences that occurred in the last Parliament?
The Joint Clerk (Mr. Onu): Last year the Commonwealth Scrutiny Committees met in New Zealand, which would have been a fairly expensive conference. I do not know if there is another one coming up. That is the sort of conference that takes place from time to time in which there would be a definite interest by the committee to attend.
Mr. White: In the New Zealand case, we did not attend and therefore we did not spend the money.
The sum for the purchase of books and materials seems quite large. Can you explain what that is for?
The Joint Clerk (Mr. Onu): It is mainly for volumes used by the legal staff to carry out their work. Perhaps Mr. Bernier can explain that to us.
Mr. François-R. Bernier (General Counsel to the Committee): I am in no position to explain that. I receive neither the accounts nor the bills; those are received by the Clerk of the House of Commons. I can tell you what we need by way of books and what subscriptions we have. However, I cannot tell you how much they cost.
The Joint Clerk (Mr. Onu): Since the beginning of April of this year bills of approximately $2,000 have been received. They include such things as The Gazette and the Dominion Law Reports.
Mr. Bernier: We also receive the Administrative Law Reports.
The Joint Clerk (Mr. Onu): I did a quick calculation a couple of days ago and learned that we have spent over $2,000 for these subscriptions already.
Mr. White: That is fine. I just wanted to determine that these are essential to the good functioning of the committee.
The Joint Chairman (Mr. Lee): Will someone move a motion, please?
Senator Kelly: I so move.
Mr. DeVillers: I will second that motion.
The Joint Chairman (Mr. Lee): Is it agreed that we approve this budget?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): The motion is carried.
This budget will go to the appropriate files in the Senate and the House of Commons. I wish to alert all colleagues, including the clerks, to something which may be a problem. In the previous year, the members from the House of Commons have split the budget 50-50 with the Senate. That was on the basis that the membership on the committee was roughly equal as between the Senate and the House of Commons. Because of the representation in the House of Commons in this Parliament, we have had to expand the numeric size of committees to about 16 or 17. The Senate was not able to keep up with us in terms of numeric representation and has stayed at its representation of eight. Therefore, the representation is roughly two-thirds from the House of Commons and one-third from the Senate. I do not know what position the Senate will take on bearing a portion of this budget. They may continue with the 50-50 split; they may do something different.
I alert you to this fact and the matter will wind its way through the dusty boardrooms.
Senator Kelly: I suggest that the graceful thing for the committee to do would be to indicate that the obligation of the Senate would be based on the ratio of two-thirds, one-third. Instead of lying in the weeds to see what we might say and put them to the indignity of having to demand a new deal, the gentlemanly and ladylike thing to do would be to make a decision now.
The Joint Chairman (Mr. Lee): Are there any other comments?
Mr. DeVillers: Is that not what we have done? Is the budget not being apportioned on a ratio of 30 per cent for the Senate and 70 per cent for the House of Commons?
The Joint Chairman (Mr. Lee): I do not believe we have made that decision. That was not our intention. We are passing the total quantum amount.
The Joint Clerk (Mr. Onu): I made that calculation to give you an indication of what the split would be, if it is subject to that.
Mr. DeVillers: The draft document I have in front of me contains that calculation. I thought that was the basis on which we were proceeding.
The Joint Chairman (Mr. Lee): In any event, we have passed the budget. The chairman will have to take this matter to the liaison budget subcommittee. Obviously, I will be asking for the 70 per cent figure, but we will see what happens.
The next item I should deal with now is administrative and concerns the budget. There is a possible need to delegate the mechanism of spending for smaller amounts. Has the committee delegated the amounts in previous Parliaments?
Mr. Bernier: Currently, the authority is with the joint chairmen, who can delegate to the joint clerks, or either joint clerk, to authorize the expenditures out of the budget.
The Joint Chairman (Mr. Lee): The only question is whether we would delegate the small amounts, for example, $100, $200, $400 or $600.
Mr. Bernier: That is at their discretion.
The Joint Chairman (Mr. Lee): Have we done it previously?
The Joint Clerk of the Committee, House of Commons (Ms Danielle Bélisle): Are you referring to the letter I just handed to you, Mr. Lee?
The Joint Chairman (Mr. Lee): Yes. I am referring to the matter I just raised.
The Joint Clerk (Ms Bélisle): This has been the standard practice in all committees in the House of Commons.
The Joint Chairman (Mr. Lee): I asked if that were the case in this committee.
The Joint Clerk (Mr. Onu): The motion that was adopted at the organizational committee two weeks ago states that either joint chairman or, in accordance with the directions of the joint chairmen, either joint clerk be authorized to approve payment of the expenditures of the committee.
The Joint Chairman (Mr. Lee): That will deal with it for now. Let us move to the rest of the agenda.
Senator Kelly: Before I leave for another meeting, I want to leave with the committee a thought that emerges out of a recent report of the Fraser Institute concerning Regulatory Impact Analysis Statements, RIAS. Under a Treasury Board rule of 1986, these statements are supposed to accompany any regulation. A survey of regulations passed in the 1995-96 year was done. This is not a partisan statement; it is an observation of what is happening. As all of us know, the Canadian pattern of legislation is to have general legislation and then regulations made under the act. In 1986, Treasury Board recognized the need to have some justification. Their survey shows that, for example, of 432 regulations passed in the year 1995-96, 29 per cent had no RIAS at all; 60 per cent had half-hearted attempts but did not fit the Treasury Board regulations; approximately 47 per cent had no analysis of costs of the regulation; and 47 per cent had no analysis or estimate of the compliance cost to industry and the public.
In 1986, the Treasury Board recognized the need to justify regulations and not have them passed casually. I am suggesting that this committee should take some responsibility to at least monitor from here into the near future whether or not this compliance is taking place. I have discussed this briefly with counsel and he has some views. Perhaps we could hear from him and then I will let the matter lie before us for some later discussion.
Mr. Bernier: First, I should tell the committee that that would be within the general order of reference of the committee. The committee could ask its advisors to look at RIAS on a regular basis. I did suggest to the senator that as a first step, if the committee wishes to pursue this matter, it might be useful to have Treasury Board officials appear before the committee for an inquiry on the figures contained in the report mentioned by the senator. After hearing the other side of the story, or any explanation, the committee would then be in a better position to decide whether this is something it wants to monitor on an ongoing basis.
Senator Kelly: There might be some justification for the fact that it is not being followed now.
The Joint Chairman (Mr. Lee): There is a proposal from the floor that we investigate a possible review of this matter. Do members care to push that further?
Mr. White: Yes. I have also seen the report that the senator mentioned. In fact, I thank him very much for bringing it to the attention of the committee. I should have done that as well. It is an interesting report.
The suggestion of counsel that, perhaps, we should invite representatives of Treasury Board to talk about it and then make a final decision about monitoring is a good one. It certainly has my support.
The Joint Chairman (Mr. Lee): I would point out to colleagues that the Auditor General was on the same case in approximately 1992. He agreed to pursue a matter similar to this, provided the committee undertook to follow up when the Auditor General was completed with his or her efforts. The department has not replied to us as far as I know. Could I ask counsel or the clerk to check with the Auditor General on the status of that? Clearly, that is part of the same issue raised by Senator Kelly and Mr. White.
Would clerk and counsel care to look at this matter and return to the committee with a more refined proposal; or would you like to undertake a review of this matter at an upcoming meeting with officials from Treasury Board present?
Mr. Bernier: Perhaps you might want first to hear from Treasury Board, then circulate that report to all members for those who might not have seen it and have Jim Martin from Treasury Board here to comment on it.
The Joint Chairman (Mr. Lee): Is it agreed that we circulate the report, have someone here from Treasury Board and decide after that?
Hon. Members: Agreed.
The Join Chairman (Mr. Lee): Carried.
C.R.C. c.1325 — PUBLIC LANDS MINERAL REGULATIONS
The Joint Chairman (Mr. Lee): We will now proceed with our special agenda items, the first one being Public Lands Mineral Regulations.
Counsel, could you explain the background of this to those who are not familiar with it?
Mr. Bernier: Mr. Chairman, the committee has before it the government's response to its third report on the issue of the constitutional validity of federal regulations made in only one official language. The response of the government will be found in paragraph 6 of the response. The rest is essentially filler material.
As the committee report makes clear, the main argument previously invoked by the government in support of the validity of regulations made in only one official language was that the Governor in Council was in good faith when he made those regulations and that he did not have any intention of contravening section 133 of the Constitution Act.
In its report, the committee carefully explained why this argument is entirely without merit. Anyone reading the government's response, however, would be forgiven for thinking the committee simply invented this argument as it is not even mentioned in the response.
A response that carefully avoids dealing with an argument that has been the government's main position for some three years can hardly be characterized as "a comprehensive response."
The only thing resembling a legal argument will be found in paragraph six of the response. This is the argument that any constitutional problem that might exist was cured by the proclamation of the Consolidated Regulations of Canada in 1978. The same argument was raised in early 1993. This is mentioned in paragraph 13 of the committee's report.
The report also records that it was eventually agreed by the senior general counsel in the regulations section of the Department of Justice that the consolidation process simply cannot validate an unconstitutional regulation. In light of this, it was somewhat astounding to find that the government would revert to that discredited argument in its response to the committee.
Essentially, we have here an argument that was explicitly renounced by the government or a government representative three years ago. It has now been resurrected at the same time as the government completely failed to deal with the committee's observations on its good faith argument.
Given that the issue of the Government of Canada's compliance with its constitutional obligations is one of continued importance, I would suggest the chairman write to the Minister of Justice to point out the unsatisfactory nature of the response to its third report.
The Joint Chairman (Mr. Lee): Your chairman had an opportunity to look at this. I was disappointed in the reply of the Department of Justice for reasons outlined by counsel. It showed that the department has, in this case, fallen into a pattern of reaching for whatever argument might be made at any time and in any case where the government will say to the department, "Do we have got an argument that counters this position?" The department then looks into its loot bag and finds one that works and puts it forward.
In this case, they have resurrected one from the past. It is nice that they have a loot bag with arguments, but we are looking for some finality to this. In their reply, they have not explained how a regulation which is, by our reconnoitring, absolutely void from the beginning is somehow resurrected by the regulatory consolidation process. They have not dealt with that, and other officials in government have acknowledged that you cannot do it. If something is void, you cannot make it live simply by having a consolidation of the regulations or the statutes.
I tend to be a little firmer on this than counsel. Disappointed as I am in the report, a letter back to this Justice Minister signalling that it is still unfinished business notwithstanding their hope in their reply to our report that it was final would probably permit the matter to live a little longer. If colleagues were moved to proceed further after that, we could take it up then.
A letter to the Minister of Justice is probably a reasonable step to take. Are there any other comments?
Mr. Wappel: What are our other options? We have reported to the houses. We have asked for a comprehensive report. You said we did not receive one. What happens in those circumstances other than a letter?
Mr. Bernier: I think a letter is certainly the first step.
Mr. Wappel: What are the other options?
Mr. Bernier: Following the receipt of that letter, either a proper response will be furnished or not. If it is not, or if the response that is furnished still does not satisfy the committee, I think on an issue of this importance the committee might well want to consider a further report to the Houses.
Mr. Wappel: What will it recommend to the Houses?
Mr. Bernier: In the absence of a letter from the new minister, I cannot answer that.
Mr. Wappel: Let us assume that the new minister regurgitates what is in the so-called "comprehensive response." What are the options?
Mr. Bernier: If that is what the committee wants to do, then a further report, pointing out and detailing the fact that the initial response is unsatisfactory and does not address the legal issues that were raised, is possibly the only viable option.
Mr. Wappel: The initial response is unsatisfactory and does not address the issues that were raised. Why do we not report to the Houses now to that effect? What is the purpose of another letter to the minister?
Mr. Bernier: There is a new minister. The basis for my recommendation was that I felt the committee might want to give this new minister a chance to look at the matter before going back to the Houses. For all we know, Ms McLellan may decide that the committee is right and say so.
Mr. DeVillers: That was my question. What is the legal status of the new Parliament? Do the report and response survive from one Parliament to the next? Is that the case, or must we obtain a fresh response?
Mr. Bernier: Simply on the basis of the fact that there has been a change in the administration of that particular department, it might be common courtesy to inform the new minister — although in that respect I might add that this Minister of Justice was aware of this file as Minister of Energy, Mines and Resources, so it does not come as a complete surprise. This regulation came under her jurisdiction in the last Parliament.
Mr. DeVillers: The legal point is that the report and response survive from Parliament to Parliament?
Mr. Bernier: No, I would not say it survives. However, they exist. They are public documents.
Mr. DeVillers: If we are exploring options, we must be on solid ground concerning the legal status of the response. If there is a legal question, if it is carry on business as usual one Parliament to the next —
Mr. Bernier: I would not characterize it as a legal question. If a report were made you would not expect a response to it in the following Parliament, but here we have two documents which form part of the public record of Parliament. This committee is perfectly free to look at these documents and pursue its inquiry.
Mr. White: I share Mr. Wappel's frustration with this file. It has been dragging on since 1993. I guess that makes it one of the younger ones with which we deal. Nevertheless, it is probably reasonable to give the new minister an opportunity to respond.
In approaching the minister, could we perhaps suggest a time-frame for a response? That will perhaps come some way to meeting the frustration that we feel in not having this matter dealt with and yet give the new minister a opportunity to address it as well. What would be a reasonable time-frame? Could counsel give us a recommendation?
The Joint Chairman (Mr. Lee): As colleagues well know, the program in Parliament would have us breaking around Christmas and returning around the end of January. A reply that reached us by the new year would allow us to deal with it when we return in February.
In conclusion, I could not help but think of a piece of a Christian prayer that suits the law here very well, our view being that since the matter is void, you cannot resurrect it. The problem for us is that because it is void, it is also difficult for us to think about disallowance. How do you disallow something that is already void? The prayer reads, "As it was in the beginning, is now, and ever shall be, world without end. Amen." Perhaps that will provide some counsel to the Department of Justice.
THERMAL POWER GENERATION EMISSIONS — NATIONAL GUIDELINES FOR NEW STATIONARY SOURCES
SOR/92-632 — SCHEDULE II TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, AMENDMENT
SOR/92-635 — SCHEDULE II TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, AMENDMENT
SOR/92-636 — LIST OF HAZARDOUS WASTES AUTHORITIES
SOR/94-459 — EXPORT AND IMPORT OF HAZARDOUS WASTES REGULATIONS AMENDMENT
The Joint Chairman (Mr. Lee): Next is the Thermal Power Generation Emissions — National Guidelines for New Stationary Sources.
Mr. Bernier: This group of five instruments can be dealt with as a group.
On March 4, 1997, I wrote to the Department of the Environment asking for the receipt of several outstanding replies. A reply was received from the department dated April 7, 1997. I will go through the items in the order in which they appear on the agenda.
On the first item, the thermal power guidelines, there is still no answer to the simple inquiry which was made in the fall of 1994 concerning the registration of these guidelines.
As for the second item, there is still no reply to an inquiry made in the fall of 1994, again on two points of concordance between the French and the English versions.
As for the third item, we do have a reply to Mr. Rousseau's letter of November 29, 1994. However, Ms LeVasseur states that the French version refers to "solides contenant des liquides." If that correct, there is no need for the word "encased" to appear in the English version and that version should simply refer to "solids that contain liquids." This point should be pursued.
The fourth item is a list of hazardous waste authorities. The reply agrees with Mr. Rousseau and an amendment is promised on the first point. On the second point, Ms LeVasseur promised a reply in the coming days but no reply has been received.
Regarding SOR/94-459, that file put into question the validity of an exemption in favour of the Department of National Defence. The reply relies on an obiter statement of Justice Marceau in the Carrier-Sekani case to support this provision. Given the government's response to the ninth report of this committee, it comes as no surprise to find that this obiter has now become a statement of legal principle for the Department of Justice.
It would serve no purpose to engage in further discussion with the Department of the Environment on this particular regulation. I propose that the committee take no further action on this file. The committee has yet to give consideration the government's response to the ninth report. This issue can be addressed at that time as part of that review.
Essentially what we have here is a problem still with environment. That is why these files were grouped to reflect that. We have a definite problem with simply receiving replies to inquires.
On three of these files there are inquiries going back to 1994 and, despite numerous reminder letters, we still simply do not have a reply. We could continue chasing it up.
Mr. Wappel: Mr. Chairman, we have encountered situations like this in the past. It has always been very helpful to the people with whom we are corresponding if we invite them to come here to explain to us why they are ignoring our correspondence. Usually when they come here they have no explanation, only apologies. Subsequent to their appearance, they begin to respond to our correspondence.
I would suggest that we invite Ms Jacob to attend at a time to be decided, perhaps sometime in December. She should be asked to attend in any event. Often when we request attendance before this committee, people like this suddenly get a propensity to answer the correspondence. That is no longer the point. The point is not whether the correspondence is answered; the point is why are they not answering correspondence from a committee of the House of Commons and the Senate.
It behooves her to attend here to see that this committee exists and that it takes its business seriously. That is what I would suggest.
Mr. White: I do not think any member would doubt that I agree with Mr. Wappel on this; however, I want to clarify one item. Counsel said that he recommends we do nothing further on this file. Was he referring only to SOR/94-459 and not the other items on the list?
Mr. Bernier: Yes; that is correct.
Mr. White: This is perhaps one of the worst examples we have had for people not answering. We repeated the same letter year after year asking for a response and received nothing. I can only lend my support to Mr. Wappel's suggestion that Ms Jacob be brought here as soon as possible. Whether or not she begins to answer the letters, it should be brought home how important it is to respond in a timely matter.
The Joint Chairman (Mr. Lee): Should we ask for this instruments officer to attend? Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Counsel will set that up. I cannot depart from this item. What caught my attention was the exemption issue which counsel says will arise on another agenda. I regard that as a very significant item. It seems the department is getting into some very bad habits trying to follow obiter when we take the view that is completely to the contrary. It is not a dead issue from the point of view of the chairman.
I wanted to place that on the record in case the designated instruments officer happens to read our proceedings.
SOR/93-211 — UNITED NATIONS FEDERAL REPUBLIC OF YUGOSLAVIA (SERBIA AND MONTENEGRO) REGULATIONS, AMENDMENT
The Joint Chairman (Mr. Lee): Mr Rousseau will speak to the United Nations regulation dealing with the former Yugoslavia.
[Translation]
Mr. Rousseau: As mentioned in the letter of July 12, 1996, since the committee examined this instrument, all of the regulatory provisions which had given the committee cause for concern have been repealed, with the exception of section 15. The department raises some valid arguments to justify keeping section 15. We suggest that this response should be deemed satisfactory.
[English]
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried
SOR/94-787 — MANUFACTURED TOBACCO IMPORTED FOR FURTHER MANUFACTURE REMISSION ORDER
(For text of documents, see appendix p. 2A:1 )
[Translation]
Mr. Rousseau: In this instance, Mr. Chairman, the committee had recommended that this order be amended for the sake of clarification. In its letter of August 20, 1996, the Department responds that this order was only temporary and should be replaced by an amendment to the customs tariff to be adopted by Parliament. The committee should therefore consider this to be a satisfactory response.
[English]
The Joint Chairman (Mr. Lee): If colleagues believe that is satisfactory, we can. I recall that the income war tax act was described as temporary when it was introduced during World War I.
Mr. White: Would there be any value in writing back to Mr. Gravelle and asking him for some time estimate for this temporary measure?
Mr. Rousseau: Certainly that could serve as a guide to this committee in making further decisions.
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chair (Senator Hervieux-Payette (Bedford, Lib)): Mr. Gravelle is no longer with the federal government but I suppose someone else will answer.
The Joint Chairman (Mr. Lee): Carried.
SOR/95-470 — ACOA LOAN INSURANCE REGULATIONS, AMENDMENT
The Joint Chairman (Mr. Lee): Counsel will speak to the ACOA loan regulations.
[Translation]
Mr. Rousseau: In this particular case, Mr. Chairman, three amendments to correct drafting problems were promised; however, in its letter of December 3, 1996, the Agency announced that the program targeted by the regulations will not be renewed and that it has no intention of making any amendments. Since we are dealing with drafting problems, we suggest that the committee could, as mentioned in the note, decide under the circumstances to withdraw its request to have the regulations amended.
[English]
The Joint Chairman (Mr. Lee): Is there any comment on that? If not, is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/93-332 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS
SOR/94-390 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT
SOR/94-531 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT
SOR/94-106 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT
The Joint Chairman (Mr. Lee): The next items are under "New Instruments." There are two elements here, namely, the memorandum from counsel and a prior letter from Mr. White.
Mr. Bernier: There is not much to add to the comments and letter which are before the committee.
The main question raised in the comment is whether the scheme which these regulations implement does not constitute an unlawful subdelegation of the Governor in Council's authority to make regulations respecting the issue of licences.
In this connection, the comment also alludes to the possible contravention of the committee's scrutiny criteria number 11, unusual and unexpected use of power. The legality of other provisions is also queried.
Finally, Mr. White also had concerns with these regulations which are set out in his letter of January 3. After discussion, if the committee agrees with the issues raised in the comment, I would suggest that those questions raised in points one to five be submitted to the department for response.
The Joint Chairman (Mr. Lee): Is there any comment? Are we agreed on that, then?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/92-496 — ACTION LOAN REGULATIONS
The Joint Chairman (Mr. Lee): Next, under the heading of "Progress," there is SOR/92-496, Action Loan Regulations.
[Translation]
Mr. Rousseau: In its letter of September 17, 1993, the Agency informed the committee that the promised amendments would be adopted in the fall of 1997. We enquired into this matter and found that the amendments had still not been made. We suggest that a follow-up letter be sent to the Agency.
[English]
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/93-235 — DEPARTMENT OF CONSUMER AND CORPORATE AFFAIRS OMNIBUS AMENDMENT ORDER, 1993-2
The Joint Chairman (Mr. Lee): Next is SOR/93-235, Department of Consumer and Corporate Affairs Omnibus Amendment Order 1993-2.
[Translation]
Mr. Rousseau: Mr. Chairman, the text of the amendment proposed by the Department in its letter of September 12, 1996 is satisfactory. As this amendment has yet to be adopted, a follow-up letter is in order.
[English]
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/92-75 — FISH INSPECTION REGULATIONS, AMENDMENT
(For text of documents, see appendix p. 2B:1 )
The Joint Chairman (Mr. Lee): Next is the SOR/92-75, Fish Inspection Regulations.
[Translation]
Mr. Rousseau: Mr. Chairman, certain provisions of these regulations are ultra vires. In its letter of October 31, 1996, the Department had announced its intention of waiting until new legislation was passed. This has yet to happen. The committee must decide today whether to insist that the Department take steps to amend the regulations immediately.
[English]
The Joint Chairman (Mr. Lee): Is there any comment? We have taken the view, counsel, that there are ultra vires provisions here, have we?
Mr. Rousseau: Yes.
The Joint Chairman (Mr. Lee): The department has agreed that they will amend the statute?
Mr. Rousseau: That is correct.
The Joint Chairman (Mr. Lee): Was there a bill in the last Parliament?
Mr. Rousseau: Yes. It was Bill C-64.
The Joint Chairman (Mr. Lee): But it did not make it through. Has it been reintroduced yet?
Mr. Rousseau: Not yet.
The Joint Chairman (Mr. Lee): Let us wait and see if the government intends to reintroduce the bill.
Mr. Rousseau: If we ask the government to amend the regulations we will have an idea. If they plan to reintroduce that bill we will know then because they will tell us.
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/93-56 — MARINE MAMMAL REGULATIONS
(For text of documents, see appendix p. 2C:1)
The Joint Chairman (Mr. Lee): The next item is SOR/93-56, the Marine Mammal Regulations.
Mr. Bernier: As noted in the comment, Mr. Chairman, these regulations correct a number of drafting concerns in relation to the previous regulations.
The comment also notes that the new regulations do not resolve the previously expressed concern of this committee about the lack of guidance for the exercise of the discretion to issue a licence. Section 4(1) of the new regulations still does not set out any criteria to govern the minister's discretion. If the committee wishes, this point can be pursued.
On other concerns that were raised with the department there is no specific reply, but there is a general reference to the drafting of revised regulations following passage of a revised Fisheries Act. That proposed legislation was first introduced as Bill C-115 in the first session of the last Parliament and then re-introduced in the last session as Bill C-62, which still did not pass before dissolution.
At this stage, a letter must be sent to the department inquiring whether or not the proposed new Fisheries Act is still in the works and whether or not it is still planned to introduce this legislation.
There is also a further issue for the committee to decide whether or not it wishes to renew its objection to the lack of any criteria in section 4(1) of the regulations.
Mr. White: Do I get the impression from this that the department answered our letters but actually took no notice of what we were suggesting? Is that the impression I get from counsel's comment?
You mentioned that some of the problems have not been addressed almost as if they did not register or deliberately did not take any notice of them.
Mr. Bernier: It might have simply fallen by the wayside; that is, the absence of any amendment to section 4(1). The committee had a series of objections that had been formulated in relation to instruments listed here in the note that go back to 1977. Most of those were resolved except that one. My suspicion is that it was forgotten over that period of time.
Mr. White: So we give them the benefit of the doubt one more time?
Mr. Bernier: Yes, that would be the case.
The Joint Chairman (Mr. Lee): On page two of the letter sent to us dated April 15, 1996, in the third last paragraph in that letter, the department seems fairly accommodating in saying that within the next year all of the concerns raised will have been resolved. That is fairly accommodating, providing they deliver. At this point that may happen.
Mr. Bernier: But that depends, Mr. Chairman, on the introduction of the new legislation. We do not know where that is.
The Joint Chairman (Mr. Lee): Let us clarify that. Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/92-580 — COMPANIES' CREDITORS ARRANGEMENT RULE
(For text of documents, see appendix p.2D:1)
The Joint Chairman (Mr. Lee): We are now into matters that are viewed by counsel as being replied to unsatisfactorily. The first is SOR/92-580, the Companies' Creditors Arrangements rule.
Mr. Bernier: One of the two points that was raised in relation to this rule was that it was not laid before Parliament within the time required by the statute. In his letter, Mr. Nymark undertakes to institute new procedures so that this situation does not reoccur.
The other point raised goes to the validity of the rule itself. Section 18(1) of the act authorizes the making of general rules for carrying into effect the objects of this act.
A rule was made requiring persons who apply for an order under section 4 or 5 of the act to transmit a copy of the order to the Superintendent of Financial Institutions. This information requirement, according to the regulatory impact analysis statement, is meant:
...to obtain information from which to assess the need for further amendments to insolvency legislation.
The question that arises is whether the collection of information by government in order to assess the need for further legislation is an object of the Companies' Creditors Arrangement Act, in order that the Governor in Council may make rules to carry this object into effect.
The government argues that it is an object of every statute that it be effective in redressing the mischief or realizing the benefit for which it was enacted. Therefore, any rules designed to assess whether this is so would be one carrying into effect an object of the act.
My view is that this argument takes far too broad a view of the object or purpose of legislation. The object of any act of Parliament is to be ascertained from the words of that enactment. It is clear that there is nothing in the Companies' Creditors Arrangement Act that deals with the collection of information to ascertain the need for further amendments to the statute. This is simply not an object of the act.
Mr. Nymark also refers to what he terms both a reinforcing and independent proposition. This is an argument invoking the in pari materia rule of interpretation. It is unfortunate Mr. Nymark completely misunderstands the rule and gives it a scope that no author or court I know of has ever suggested it has.
Essentially, his proposition is that the Companies' Creditors Arrangement Act and the Bankruptcy and Insolvency Act are in pari materia as they both relate to insolvency, and that because the collection of information respecting the incidence and use of insolvency proceedings is an object of the Bankruptcy and Insolvency Act, it must necessarily be an object of the Companies' Creditors Arrangement Act.
The in pari materia rule is used to resolve difficulties of interpretation problems. It is certainly not meant and has never been used in order to enlarge the scope of regulation-making powers conferred by a particular statute.
I might add that the records the superintendent is required to keep under section 11 of the Bankruptcy Act have nothing to do whatsoever with gathering information in order to decide whether new legislation is required.
In closing, while the committee received a well-written letter from Mr. Nymark, it shows a serious lack of understanding of the proper scope and application of various rules of interpretation and a failure to understand how those rules apply. It is my view that the matter should definitely be pursued with the department.
Mr. Wappel: I, too, wish to say that I thought it was an extremely well-written letter. It was a pleasure to read it, but I agree with counsel.
The Joint Chairman (Mr. Lee): I assume there is a consensus that counsel correspond with the department again, clarifying the issues that he last outlined to us. I take it we agree with counsel on this matter.
I have a concern — notwithstanding the nice way in which the letter was written — about the failure to file this material with Parliament.
The failure to file is covered by statute, by Parliament. If I am not mistaken, your chairman was in Parliament in some earlier incarnation pointing out the contempt of failing to file a matter — and, I do not believe it was the same department — that Parliament required be filed. I believe the Minister of Finance failed to file.
There are some comments on the parliamentary record by Speaker Fraser addressing this matter. I think he addressed it reasonably well. We should ask counsel to bring those remarks of Speaker Fraser to the attention of Mr. Nymark as politely as he has been with us.
We should firm this up. It is all very well for the department to say, "Sorry, we missed it; we forgot." The failure to do it may constitute contempt, but that is completely aside from any statutory implications or enforcement implications involving the statute itself or the regulations themselves.
Mr. Bernier: Perhaps a copy of the Speaker's ruling in the instance to which you referred could be sent to the department.
The Joint Chairman (Mr. Lee): Yes. My recollection is that the Speaker did find there were sufficient grounds to find contempt in that case.
Perhaps counsel could keep that around for a few more years and send it out to remind departments, where necessary.
Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/93-9 — NEW BRUNSWICK TRANSLATED DOCUMENTS REGULATIONS
(For text of documents, see appendix p.2E:1 )
The next item, also under the rubric of "Reply Unsatisfactory" is the New Brunswick Translated Documents Regulations.
[Translation]
Mr. Rousseau: At its meeting of April 17, 1997, the committee had decided to close the book on this file. It should not be on today's agenda. No further action is required on the committee's part.
Mr. Bernier: This item was on the agenda of the April 17 meeting. The committee was unable to get through the entire agenda at the time and forgot to withdraw this item.
[English]
Mr. White: I was interested in this regulation. Is it coming back? What will happen to this one? What is the status?
Mr. Bernier: On April 17, we had to deal with the RCMP and the draft disallowance report. There was a full agenda before the committee on that date as well. In the end, the committee dealt with the RCMP matter. There were perhaps five hectic minutes left, and members were looking at the agenda for something else to deal with before adjourning, namely, this file. At the time, the committee agreed to close the file and accept the response.
Mr. White: All right.
Mr. Bernier: We simply forgot to remove it when we got the agenda back.
The Joint Chairman (Mr. Lee): I take it that is what we are doing, namely, moving on?
Mr. White: Yes.
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried. I did think they were offside, and I had some concerns. However, I agree that we should move on if that is the consensus.
SOR/94-262 — FOOD AND DRUG REGULATIONS, AMENDMENT
(For text of documents, see appendix p.2F:1)
The next item on our agenda falls under the rubric "Reply Unsatisfactory (?)", the Food and Drug Regulations, Amendment.
[Translation]
Mr. Rousseau: Pursuant to the Statutory Instruments Act, it took effect on that date. However, in the summary accompanying the regulations, we note that these amendments were scheduled to come into force on September 1, 1994, in order to reduce the transition costs associated with the development and printing of new labels as required by the regulations. The department confirmed that it postponed on several occasions the coming into force of the new regulations until such time as it deemed it appropriate. It was unable to say by virtue of which authority it made such a decision. However, it confirms in its letter of November 27, 1996, that this should not happen again. There is nothing further to be gained by pursuing this matter. Therefore, we recommend that the committee consider this matter closed.
[English]
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/93-611 — NORTH PACIFIC MARINE SCIENCE ORGANIZATION PRIVILEGES AND IMMUNITIES ORDER
(For text of documents, see appendix, p. 2G:1)
The Joint Chairman (Mr. Lee): Next, under "Action Promised" is the North Pacific Marine Science Organization Privileges and Immunities Order.
Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/94-269 — YUKON TERRITORY FISHERY REGULATIONS, AMENDMENT
The Joint Chairman (Mr. Lee): Next, also under "Action Promised", is the Yukon Territory Fishery Regulations.
Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/94-562 — NORTH PACIFIC ANADROMOUS FISH COMMISSION PRIVILEGES AND IMMUNITIES ORDER
(For text of documents, see appendix p.2H:1)
The Joint Chairman (Mr. Lee): Also under the rubric "Action Promised," the next item is the North Pacific Anadromous Fish Commission Privileges and Immunities Order.
Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/94-563 — ICAO PRIVILEGES AND IMMUNITIES ORDER
(For text of documents, see appendix p.2I:1)
The Joint Chairman (Mr. Lee): The next item is the ICAO Privileges and Immunities Order.
Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/95-25 — INVESTMENT CANADA REGULATIONS, AMENDMENT
(For text of documents, see appendix p.2J:1)
The Joint Chairman (Mr. Lee): Generally, we do not spend time individually on the items listed under "Action Promised" unless members wish to raise them. Are there any comments about those items? If not, are there any comments from counsel?
Mr. Bernier: I would simply note that under "Action Promised" a total of 13 amendments have been promised, including five to provisions that are ultra vires the enabling legislation.
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/96-516 — REGULATIONS REPEALING THE LABELLING OF SPECIALLY DENATURED ALCOHOL AND DENATURED ALCOHOL REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see appendix p.2K:1)
The Joint Chairman (Mr. Lee): The next item is under the rubric "Action Taken".
Mr. Bernier: The matter raised by the committee has been resolved.
The Joint Chairman (Mr. Lee):Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
SOR/97-36 — REGULATIONS AMENDING THE CANADA LANDS SURVEYS EXAMINATION REGULATIONS
(For text of documents, see appendix p.2L:1)
Mr. Bernier: As regards this instrument listed under "Action Taken", the matter raised by the committee under this rubric has also been resolved.
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
We have come through a fairly thick agenda and have done reasonably well. Senator Hervieux-Payette will be chairing a portion or all of the next meeting.
I give notice that I intend to raise a matter involving the chairmanship of the joint committee. Most of you will be aware of the background, so I will raise it at the next meeting.
Our next meeting will be the Thursday following the one-week adjournment for Remembrance Day at 8:30 a.m.
Mr. White: You have decided that we will meet every two weeks. Had we not decided in the last Parliament that there was such a backlog of work that we needed to meet weekly? Has that backlog disappeared? Have circumstances changed?
Mr. Bernier: I do not recall the committee deciding to meet weekly.
Mr. White: Were we not meeting weekly for a period of time?
Mr. Bernier: Yes, towards the tail end of the session.
Mr. White: If there is no reason to do so, that is fine.
Mr. Bernier: The only problem with weekly meetings is having time to prepare the new agenda and to deal with the outflow of correspondence resulting from a meeting. We have the review of instruments as well.
Mr. White: All right
Mr. Wappel: This committee did a tremendous amount of work on the regulations on Bill C-25, but as I recall we never did finish, or did we?
Mr. Bernier: Yes.
Mr. Wappel: Did we produce a report?
Mr. Bernier: Yes. It was not tabled, but we have a draft.
Mr. Wappel: Did the committee consider a draft report in full?
Mr. Bernier: No.
Mr. Wappel: So the committee did not finish its work because it did not produce a final report based on the tremendous amount of work it did. Is that right?
Mr. Bernier: That is right.
Mr. Wappel: Could I ask that the steering committee to consider that issue and determine whether we will simply lose all that work or whether it could be brought back here for the committee to come up with something?
Mr. Bernier: There is no steering committee.
The Joint Chairman (Mr. Lee): Mr. Wappel, with one shovel you have come up with two shovels full.
Concerning the manner of the report, we will have to look for ways to recoup our substantial investment in this and to ensure that the benefits of the time spent will carry over into the current Parliament. We will look for a way to do that. I gather it is coming up on a future agenda.
The second shovel full is the steering committee. We have not yet defined the structure of the steering committee. Because of the mathematics of the representation in the House of Commons, it is a more tricky exercise in this Parliament.
A format has been suggested but we on the House of Commons side have not had a chance to discuss it. I do not know whether the Senate has completed its work in that regard.
We do need a steering committee. Do colleagues think we are in a position to decide upon that today?
One proposal is to go with a basic steering committee but be prepared to allow for alterations to accommodate parties from the House of Commons. If we accommodate every party in the House of Commons and do not carry the government's majority into the steering committee, we would have a steering committee of seven or eight members.
Mr. White: That is too big.
The Joint Chairman (Mr. Lee): It is a little large. I think we can get by with seven from the House of Commons, but we must have membership from the Senate, too.
Counsel suggested earlier in the week that the steering committee include the two joint chairmen, the vice chairman, and one representative from each the Bloc Québécois and the NDP. We have the benefit of being able to select a Progressive Conservative senator. That would cover off all the parties and would yield a steering committee of six in total with all the parties having some representation without any kind of government control.
This committee almost always operates by consensus — certainly the steering committee does. The presence or absence of a controlling element on the steering committee probably does not have much significance.
Could we go with that format?
Mr. White: I move that we use that format.
The Joint Chairman (Mr. Lee): Is that agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
Therefore, we now have the structure but not the names. We are missing the designated persons from the Bloc Québécois and the New Democratic Party, as well as a Progressive Conservative senator.
Mr. Bernier: What about Senator Grimard?
The Joint Chairman (Mr. Lee): Senator Grimard is a former chairman of this committee. That is an easy choice but this is something that the Senate and the parties should work on. It may be that we should not impose it at this time.
We will return to this matter at the next meeting for the names. At least we have approved the structure.
The Joint Chair (Senator Hervieux-Payette): They should inform the clerk of the names of those who have volunteered.
The Joint Chairman (Mr. Lee): We will address that at the next meeting.
The committee adjourned.