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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 4 - Evidence

OTTAWA, Thursday, May 3, 2001

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

Mr. Jim Pankiw (Joint Chairman) in the Chair.


The Joint Chairman (Mr. Pankiw): I call the meeting to order.

I would ask an honourable member to move the motion that I believe is in front of you.

Senator Finestone: I so move.

The Joint Chairman (Mr. Pankiw): The motion is moved by Senator Finestone, seconded by Mr. Wappel.

All in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Pankiw): Carried.


The Joint Chairman (Mr. Pankiw): The first matter is "Letters to and from Ministers." Mr. Bernier?

Mr. François-R. Bernier, General Counsel to the Committee: The committee objected to the Railway Interswit ching Regulations on the ground that they sought to prescribe maximum interswitching rates that could be charged by a terminal carrier. In this case, the National Transportation Act gave the Canadian Transportation Agency the power to prescribe the rate per car to be charged for interswitching. In prescribing a maximum rate instead of the actual rate, the agency was exceeding its statutory authority.

The committee found that sections 8 and 9 of the regulations, as well as the related schedule, were ultra vires the act. That was in 1993.

In June 1996, the agency accepted the validity of the committee's position and undertook to amend sections 8 and 9. While section 9 was amended in 1997, section 8 continued to refer to the charging of a maximum rate. This was drawn to the attention of the agency and, in 1998, the agency indicated that it would renew its efforts to revise the section.

In the spring of 1999, the committee received a copy of a letter from the Minister of Transport to the chairman of the agency in which the minister objected to the making of the promised amendment, I quote, "in light of the agency's longstanding practice of establishing maximum interswitching rates."

In a note for the committee, counsel wrote that this statement by the minister could only mean one of two things: either that the minister was not aware that the agency had abandoned the practice of fixing maximum rates in 1997 or that the committee had been misinformed as to the intent of the 1997 amendment.

This point was made to the minister in a letter of February 3, 2000, from the chairmen. The minister's reply of June 4, 2000, is interesting, but, first, let me quote from the February 6 letter from the Office of the Chairman, Canadian Transportation Agency. That letter, states, in part, the following:

The Agency also understands that the inter-railway interswitching charges correspond to both the car movement classes and the rate levels which are set out in the Agency's...Regulations.

As I read this statement, it confirms that the interswitching rates charged are those prescribed in the regulations and that, notwithstanding that the words "shall not exceed" still appear in section 8, section 8 of the regulation is not considered to allow the charging of maximum rates as opposed to a specific rate.

Coming back to the minister's reply of June 4, he writes, in part, as follows:

There is support from shippers and railways to continue the pricing flexibility afforded by the setting of maximum interswitching rates.

The minister is right on one point, and that is that both his previous reply and this one clearly suggest that the rates set out in the railway interswitching regulations continue to be treated as maximum rates even though this is entirely illegal, while, on the other hand, the Chairman of the Canadian Transportation Agency is telling the committee that the rates charged correspond to the rate levels that are set out in the regulations.

I read that last statement as indicating that the rates charged are those set out in the regulations, which, of course, brings into question the statements of the minister. If we accept the minister's version, then the committee has to conclude that the law is being deliberately ignored and that this course of action has the support of a minister of the Crown.

If we accept what the chairman of the agency is thought to be saying - recognizing that Ms Robson has been far from clear in her replies, perhaps intentionally so - that the rates charged are exactly those set out in the regulations, then there could possibly be no objection from the minister to making the promised amendment to section 8. If there is an objection, it must be either because the minister does not know that rates charged by terminal carriers are the specific rates set out in the regulations or because the minister knows that an illegal regulation is being enforced.

The issue, Mr. Chairman, is this. We have an act of Parliament in which Parliament delegated to the Canadian Transportation Agency the authority to prescribe rates to be paid for interswitching. Instead of doing that, that agency unlawfully proceeded to prescribe maximum rates.

The committee asked for the relevant regulation to be amended, to bring it within the scope of the authority delegated by Parliament. The regulation-making authority has accepted to do this but the responsible minister objects to this and wishes to maintain the illegal regulation in place.

Senator Finestone: The Transportation and Communications Committee in the Senate is currently studying a bill, the gist of which is really the question of trucking and busing.

Is this something that would have to be done by regulation or is it something that needs a statute? I do not know.

Mr. Bernier: It depends on how you look at it, Senator Finestone. The statute right now does give authority to the agency to prescribe interswitching rates. The difficulty seems to be that there is a policy preference for authority to prescribe ceilings as opposed to an actual rate beyond which a carrier cannot go.

Now, if you want to prescribe maximum rates or ceilings instead of specific rates to be charged, then obviously an amendment to the statute will be required because there is currently no authority for this.

On the other hand, right now, the statute does give authority to prescribe actual rates.

Part of the problem is that we cannot seem to get a very clear answer as to what is actually going on right now. We seem to be hearing a different story from the minister and from the chairman of the National Transportation Agency, as you can see in the correspondence before the committee.

Mr. Schmidt: Mr. Chairman, what is the definition of maximum rate?

Mr. Bernier: There is no definition, as such. As I say, section 8 provided for a schedule wherein certain rates were set out. As a purely hypothetical example, let us say $4 per car. Section 8 then provided that a carrier can charge a rate that shall not exceed $4 - so he is free to charge $1, $2, $3 or $4.

The authority in the statute that Parliament gave the agency was to prescribe a fixed rate. So the authority of the agency is to say the rate will be $4 and nothing else. The terminal carriers do not have a discretion here. If they charge, they charge $4. That is what they are supposed to charge, as opposed to maximum rates where anything can be charged up to a certain amount.

Mr. Schmidt: De facto, then, whatever rates the agency sets are the maximum rates?

Mr. Bernier: Again, as I read Ms Robson's last letter, she seems to be saying that, no, they have advised the industry that those are actual rates and that the rates that are set out in the Railway Interswitching Regulations now are to be treated as specific rates, the rate to be charged.

The minister, on the other hand, keeps referring to continuing the practice of having maximum rates, which seems to reflect that the Department of Transport believes or is saying that those rates in the regulations continue to be applied in the industry as maximum rates.

Mr. Schmidt: Exactly. De facto, they become maximums, because that is technically within the law, yet it is not within the intent of the legislation.

Mr. Bernier: You are quite correct. On the face of it, it still includes the words "shall not exceed."

Senator Finestone: With respect to the legislation that would appear is being contravened, when was that legislation written?

Mr. Bernier: Senator Finestone, I would have to get that information. It is not a new statute, however.

Senator Finestone: I asked the question because in a moving economy, where interest rates change, where costs, whether related to gas, oil, maintenance or whatever, change and where labour costs change, how can a maximum dollar rate be set? It may indeed be possible to set in place a principle, but I do not understand how the dollar rate can be set for something that might have been written five or ten years ago. It does not take into account a changing economy, either up or down.

Mr. Bernier: Senator, the power to prescribe rates is a power exercised by regulation. The agency remains free to amend and change its regulations as circumstances dictate. In fact, the National Transportation Act does require the agency from time to time to review prescribed rates to ensure that they reflect costs.

The Joint Chairman (Mr. Pankiw): That is not a concern. The concern to us here is amending the regulation to reflect what the statute says, which is not a maximum rate but a specific rate.

Mr. Bernier, do you have a suggested course of action?

Mr. Bernier: I was hoping members would come up with something. The letter of May 18 to the minister indicates that, at one point, the committee was to call both the minister and the chair of the agency to resolve this apparent discrepancy in actual practice and to find out what was going on. This was overtaken by this request, and the minister then provided the reply of June 4. I understand the minister was referring to a policy review being undertaken. I would certainly think that any further correspondence would have to be at the level of the Chair to the minister.

The disturbing aspect of this, of course, is the fact that an agency is admitting that its regulation is illegal and is indicating a wish to change it and a minister of the Crown is stepping in and saying, "No, we will continue this illegal regulation because I think it is preferable from a policy point of view."

Ms Barnes: I would suggest a letter from the chair, the same letter to the minister and the organization, outlining the discrepancy and indicating the desire to receive a reply before we have to act on it - because we very clearly view this as a discrepancy, which can be in violation.

The Joint Chairman (Mr. Pankiw): That is a good suggestion.

Mr. Schmidt: I can also see that setting a maximum allows a certain competitive element to be entered into the setting of rates.

The Joint Chairman (Mr. Pankiw):If I am not mistaken, the role of our committee is not to debate whether it should be a maximum, simply whether it is ultra vires.

Mr. Schmidt: I agree, and I have no problem with that.

The Joint Chairman (Mr. Pankiw): We agree to adopt the suggestion of Ms Barnes?

Mr. Wappel: Yes. Just so that I can be clear on Ms Barnes' suggestion, what will be the tone of the letter? "If you do not answer within a period of time, we shall," what?

The Joint Chairman (Mr. Pankiw): I believe that the suggestion was to debate that after reviewing the response. Do you want to strengthen it?

Mr. Wappel: I have some problems with that. This minister has clearly done everything he can, with all due respect to this minister, to avoid this committee. We have asked him many times to come before the committee, and we have been completely ignored. Just at the point at which we are about to, in effect, subpoena the minister - and I suppose we cannot do that to a minister of the Crown, but that is another issue - he sends us this letter, which, it would appear, is clearly opposed to the views of the chair of one of his organizations.

It seems to me that if the minister is not prepared to move, then either the committee has to move and back off or we have to disallow it.

We should say that we will have to seriously consider recommending disallowance of this if we do not have this matter resolved by a certain time, whatever time that is. That is vague enough that it gives us an out, but it certainly shows that the committee is very seriously concerned about the discrepancy between the minister and the head of a board.

The Joint Chairman (Mr. Pankiw): Are there any objections to the strengthening of the letter, as Mr. Wappel has suggested?

Senator Moore: I think it is a good idea, and I would like to try to get this cleared up before the summer break. The minister 's letter is a year old.

The Joint Chairman (Mr. Pankiw): I have been informed that because this particular regulation was made by the National Transportation Agency we actually do not have the authority to disallow it.

Mr. Wappel: What do we have the authority to do?

The Joint Chairman (Mr. Pankiw): To report it to Parlia ment.

Mr. Wappel: That is what we should say.

Ms Barnes: I have one question of fact. Do we know that the minister knew the content of the contradictory letter at the time the response was made? Having the facts and the position in front of him and writing a contradictory letter is one thing; not realizing that you are at really opposing viewpoints is a different thing.

For clarification, our letter should have as attachments the two letters, so it is very clear on the face of it.

Mr. Bernier: Ms Barnes, maybe I should have made that even clearer. I thought I had been careful to indicate that there appeared to be a contradiction. If you look at the correspondence from Ms Robson, it has been very difficult to pin down. I kept asking the same question, and I kept getting answers that were over there instead of here. This is really an interpretation of the letter of what she seems to be saying. I see your point. Perhaps we should include in the letter to both parties copies of their respective correspondence.

Ms Barnes: You should clearly indicate that, on the face of the two contradictory letters, we need to know where you stand and what your action you will take; if not, we will report.

The Joint Chairman (Mr. Pankiw): Fair enough. All right.


Ms Jodoin-Rasmussen, Counsel to the Committee: Mr. Chairman, the issue here is that the government of Manitoba has, without legal authority, retained license fee revenues - and I am referring to a letter from the DFO - for many years, in some cases back to the turn of the century. In compliance with the committee's desire to be kept informed of any progress on the issue, we have incorporated the department's correspondence to date for the committee's information.

The Joint Chairman (Mr. Pankiw): Any comments or questions?

Mr. Wappel: Mr. Chairman, the letter from DFO indicates that there has been no progress. Our initial letter said that we are not really going to take up this matter, that we were only kind of interested. If we do not intend to take up this matter, why not just drop it?

Mr. Bernier: Mr. Wappel, we are simply following instruc tions of the last committee. The committee, while not formally pursuing the matter, had indicated the desire to be kept apprised from time to time.

Mr. Wappel: The difficulty with that, from my perspective, because we have so many of these, is that we soon forget the relevant issues; that unless we get a lengthy briefing, and particularly if there is nothing we can formally do, I really do not see the utility in carrying the file.

The Joint Chairman (Mr. Pankiw): The suggestion is that we drop it. Is there agreement to do that? Are there any other questions?

Senator Moore: Nothing is happening on either side of this. It is nice to be informed, but it is pretty frustrating stuff.

Senator Finestone: Do we close files like this?

Mr. Wappel: My recollection is, and counsel can probably correct me, and no doubt will, that we do not follow too many files after we are finished with them. There is perhaps the odd issue where we found it of some interest, but out of the vast majority of the files that we deal with there are not too many like this.

My point is this: When I read this, I did not have a clue what we were talking about. I did not remember the case. I did not remember what the issue was, in particular, or why we decided that we would like to continue to hear about it. We knew, apparently, that the collection of the fees was illegal, but there is nothing we can do about it.

Mr. Bernier: It is not so much the collection. There has been a federal practice to allow the provinces to keep fishing licence fees they collect because they administer the Fisheries Act in the province, and whatever they collect by way of licence fees they keep. Legally, those are federal monies and they should come back to Ottawa. This practice, as I say, goes back, which we discovered very incidentally in examining the regulation, in some cases to Confederation.

However, there is no legal authority for the arrangement in question. It is contrary to the Financial Administration Act and in this case the department recognized this and said that in the fullness of time they would correct the situation by means of an amendment in the revision of the Fisheries Act.

Mr. Macklin: It sounds to me that what we are merely reflecting upon is enforcement and whether in fact we, the federal government, choose to enforce what appears to be statutorily ours. My question is: Where do the regulations fit in if in fact it is within the provincial jurisdiction? I would have thought the situation was like this: If the federal government having that power chooses to enforce it and declares the revenues to accrue to the provincial government, then they could do so - but I do not know what our regulation power would have to do with that.

Mr. Bernier: The situation is this: In fact, the federal government does not have a discretion. There is the Financial Administration Act and those are federal monies. It is an offence for people to retain federal monies, public monies, from the federal treasury. Technically, it is also an offence for federal public servants to fail to recover sums of monies owed to the federal government.

Leaving that aside, there is a longstanding practice. I think you put your finger on it. There is no regulation here. It is a matter of public administration involving the Financial Administration Act and the legality of certain practices that are outside the mandate of this committee, which is exactly why the committee decided it would not formally continue to pursue this file. Nevertheless, because large sums of money were involved, because an illegal practice was involved, the committee members at the time - and we will take any contrary instruction - expressed an interest in being kept informed from time to time of any progress made in terms of validating the current practice.

Ms Barnes: It strikes me that this is a situation where we are not following the given law and that there is, for sure, an amendment required. I would think the course of action would be to write the Finance Minister, who is in charge of the Financial Administration Act, and the Fisheries Minister saying that we see an absence of appropriate law that allows the longstanding practice that has been occurring and asking them to move forward in moving statutory provisions to correct this.

At least we would be on record as saying that - unless you are telling me that somewhere in the file that letter has already been sent, but I cannot tell that from this.

The Joint Chairman (Mr. Pankiw): Do you have a suggestion, Mr. Macklin?

Mr. Macklin: Precisely what Ms Barnes has just brought forward.

The Joint Chairman (Mr. Pankiw): The suggestion is that we write the Minister of Finance about this.

Mr. Bernier: I will come back, Mr. Chairman, and simply mention that we will draft whatever correspondence the committee wishes drafted, but we must come back to the fact that this is not a matter within the jurisdiction of this committee, strictly speaking. We are talking public administration, which is why the previous committee decided not to formally pursue it.

The Joint Chairman (Mr. Pankiw): I think the suggestion is that we would simply write a letter drawing the attention of the Finance Minister to this, but that would then end our involvement.

Ms Barnes: That is right; it is his purview.

The Joint Chairman (Mr. Pankiw): Any further discussion? All in agreement?

Hon. Members: Agreed.




Ms Jodoin-Rasmussen: Mr. Chairman, as indicated in the correspondence, it remains for the department to ensure that the instruments that are listed here, I believe, are deleted from the consolidated index of statutory instruments. Once that happens, the file can be closed.

Mr. Wappel: Does that simply mean that you are recommending that we monitor the file until such time as they are removed?

Ms Jodoin-Rasmussen: In essence, Mr. Wappel, we will just keep checking the index and once they are no longer there we will simply close the file.

Ms Barnes: Is there a timeline on that?

Ms Jodoin-Rasmussen: One would imagine the next index.

Mr. Bernier: There is an index coming to March 31, which should be out.

Mr. Macklin: Should there be a referral period that it will come back to this committee if in fact it does not happen at the next available opportunity?

Ms Jodoin-Rasmussen: If you wish.

Mr. Macklin: If it is serious, and we believe it to be so, then I would suggest that.

Ms Barnes: In the event that it does not come out this next time, what about saying in the fall, if it is not dealt with by the fall that it would come back to us? I do not want to waste time reviewing files that look likely to be fixed, so give it two more go-arounds and then get it back to us if it is not done.

The Joint Chairman (Mr. Pankiw): Is everyone in agreement on that?

Hon. Members: Agreed.


Mr. Bernier: Mr. Chairman, it remains the counsel's view that the current legislation simply does not authorize the temporary registration scheme that was introduced in 1992 by the Food Inspection Agency. The act provides for products to continue to be sold and imported on an ongoing basis, once it is shown that prescribed standards are met, their packaging label is prescribed and they are registered as prescribed.

The Fertilizers Act does not contemplate a scheme under which a product that meets certain prescribed standards but not others can be sold or imported during a limited period of time. Authority for the sort of scheme put in place by the regulation of 1992 could easily have been provided by Parliament. The act could, for example, allow the making of regulations granting conditional exemptions from the application of the regulations; it does not. The act could allow the making of regulations providing for the temporary registration of fertilizers subject to prescribed terms and conditions; again, it does not.

Our suggestion is that if the committee wishes to pursue this objection it should do so with the responsible minister.

The Joint Chairman (Mr. Pankiw): Suggestions, comments or questions? All in agreement?

Hon. Members: Agreed.


Mr. Bernier: Mr. Chairman, as of April 15, the amendment to section 58 of these regulations had not been made. When the vice-president of the Canadian Food Inspection Agency appeared before the joint committee in April 1998, he gave a firm undertaking that this change would be made by April 30, 2000, at the latest.

Mr. Wappel: Mr. Chairman, I note that we corresponded for a while and that the committee asked for the appearance of Mr. Chartier to explain why he did not answer our letters. The letter was answered without an explanation as to why Mr. Chartier did not answer our previous letters.

I know this committee has taken a dim view in the past of people who ignore our correspondence. I was surprised to see that it is a different person writing, that there was not even an attempt to explain why our correspondence had been ignored in the face of a specific undertaking by Mr. Ray, when he appeared before our committee. We were inclined to ask Mr. Ronald Doering to explain Mr. Chartier's failure. Perhaps we should still request Mr. Doering's appearance to explain Mr. Chartier's failure and also to pursue the issue. If I understand correctly, there is an issue to pursue.

Mr. Bernier: Section 58 still stands, Mr. Wappel.

Mr. Wappel: In view of Mr. Ray's previous undertaking given to this committee, we should have some explanation as to why they have not done that. This is one of those cases where it was because Mr. Ray was called before this committee that certain undertakings were given. Quite a number of the undertakings that Mr. Ray gave did come true. Is that not correct, Mr. Bernier?

Mr. Bernier: Yes, that is correct.

Mr. Wappel: This is not one of them and someone should explain to us why not. I am suggesting that at some point we call Mr. Doering before us on those issues: why Mr. Chartier ignored our correspondence; why, when our correspondence was answered, there was no explanation for the ignoring of our correspondence; and why, in the face of a given undertaking to a committee of Parliament, the appropriate action has not been taken.

The Joint Chairman (Mr. Pankiw): That can be accom plished in a letter as well.

Mr. Wappel: We have not had anybody here so far in this Parliament. It is always fun, so let us get someone here.


Mr. Lanctôt: The letter dated September 2000 is very clear. If we do not receive a response, we will recommend that section 58 be disallowed. Officials are aware of this letter, but they do not take the Joint Committee for the Scrutiny of Regulations seriously. As stated in the letter, I will recommend the disallowance of section 58. Then, they will take us seriously. In my opinion, asking them why they have failed to respond would be a waste of time.


Mr. Bernier: Mr. Chairman, the committee did wish that the president be informed that the committee would give consideration to moving the disallowance of section 58 if it did not receive a satisfactory answer.

Mr. Wappel: Mr. Chairman, I have never stood in the way of a disallowance recommendation of this committee. Most times we pussyfoot around that. If the will of the committee is to disallow, I am in favour of that as well.

The Joint Chairman (Mr. Pankiw): There are two suggestions on the table.

Mr. Wappel: If the committee recommends disallowance, I am 100 per cent in favour of that and I would withdraw what I have suggested.

Ms Barnes: I wanted to make the same point that has just been made. When we say something, we should follow through. Otherwise, why bother saying it?

Mr. Macklin: I think you have captured the essence.

The Joint Chairman (Mr. Pankiw): If there are no objections, we will move for disallowance.

Mr. Bernier: I would simply point out, so that members are aware, that there is attached to Ms Stolarik's letter a draft of a new section 58 that would meet the committee's objections. I do not know if that has an impact on the decision that the committee is making or not.

Senator Bryden: Perhaps, because of the wording of the letter of September 26, 2000, should we not give notice that we will do that? Mr. Bernier stated in the letter:

I am also to give you notice that should the Committee not receive a satisfactory answer to the latter question, it will give consideration to moving the disallowance...

Should we not inform the agency that the committee has considered and that we are proceeding to do what needs to be done to move for disallowance?

The Joint Chairman (Mr. Pankiw): That can be done.

Senator Bryden: It is amazing sometimes how quickly people can act after the writ is issued.

Senator Finestone: Does the potentially amended regulatory change to section 58 - that change is attached to the letter of October 26 - resolve the problems that you faced before? Is that an answer if this draft amendment proceeds?

Mr. Bernier: Yes, senator, that would be satisfactory. In cases of suspension, cancellation of licences, permits or authorization, the committee is always looking for a distinction to be made in the regulation between the reasons for suspension and the reasons for cancellation.

In other words, you do not give a public official the discretion to decide that for the same behaviour you will either suspend or cancel at his discretion. There are very important differences between the consequences of a suspension versus those of a cancellation. There should be, if you will, a continuum there from suspension to cancellation.

The committee always asks that the motives for which the permit can be suspended be spelled out in the regulation as well as the motives for which the permit can be cancelled be spelled out. This is what the draft amendment would do.

Ms Barnes: It is my understanding that even if we move for disallowance it does not preclude them from putting through this new regulation. Our action does not supersede their action. Even if they crossed, the situation is not one where you would have to wait for this thing to go forward or where there is any danger that we are hurting this procedure.

I agree with Senator Bryden, we should let them know what we are doing and perhaps that will speed them putting their draft into true form and getting on with it. I do not think it changes our particular course of action. I want to know if I am wrong or right on that.

Mr. Bernier: You are entirely correct, Ms Barnes. In addition, with respect to the disallowance procedure, even if the House does make an order for revocation it is important to remember that the actual revocation remains in the hands of cabinet. It is not an automatic process, because our procedure is in the Standing Orders and not statute-based; the order of the House that regulation "X" be disallowed is simply an order to cabinet. Cabinet can take a month or two months before it complies with that order.

Mr. Schmidt: What is the status of this draft amendment?

Mr. Bernier: I have no idea. I can only tell you, as I indicated at the beginning of my presentation, that as of the 15th of this month that regulation had not been adopted. That is all I can verify.


Mr. Lanctôt: According to my interpretation, the letter calls for section 58 to be disallowed, not the regulations in their entirety. Section 57 would remain in force. I will not set a deadline, and I will request that section 58 be disallowed. That would not cause problems for anyone. Section 57 talks about suspension.

Mr. Bernier: I believe there was a translation problem. Everyone refers to the disallowance of section 58, not of the entire regulations. I want to clarify that section 57 does not pertain to suspensions. The draft amendment would split this provision into two separate sections.


The Joint Chairman (Mr. Pankiw): I believe we have consent to move for disallowance on this.

Is there a motion to that effect?

Mr. Bernier: We will draft the report and bring it to the next meeting. The members can vote on the report at that time.

The Joint Chairman (Mr. Pankiw): The draft report will come before the next committee meeting and we will vote on it then.


Mr. Bernier: Chairman, an additional letter was distributed in connection with this file this morning. Members should have a letter dated April 6 that came in after the agenda was prepared. With regard to the progress of the amendments promised the committee, Ms Cedar-Wilson's letter of April 6 states that they are being processed for submission to a special committee of council and that they have been forwarded to the Minister of Indian Affairs for his approval.

With regard to the proposal to bring back the draft section 7(1) that was proposed earlier, there is still no final reply to my comment that the draft section as proposed is redundant, given section 4(b) of the enabling legislation, which already prohibits commencement of production without a required authorization.

I suggest that both aspects of this be pursued with the department in a month or so.

The Joint Chairman (Mr. Pankiw): Are there any comments or questions on the suggestion of legal counsel?

Senator Finestone: We have already indicated to them the redundancy of that section vis-à-vis section 4, and they are responding by saying that they are still reviewing it. Does that mean that they are not in agreement, are possibly not in agreement, or what?

Mr. Bernier: They proposed this draft as a way of addressing our objection. We then pointed out that if this is what it means and this is what you want, it is unnecessary because that is already provided for in the act. Then they came back and the proposal had changed entirely. They had a new section. We also had objections to their new proposed draft, and made those known. They wrote back saying how they would deal with those, but what they came back with was exactly the first draft. Therefore, I am reiterating that the section would be unnecessary and they are now studying this.

Senator Finestone: By doing what they have indicated they plan to do, are they correcting the situation? Are we going to get this back again in a different form?

Mr. Bernier: You might well. I expect that they will eventually conclude that section 7(1), as they have drafted it, is unnecessary. I hope that in whatever form it comes it will address the committee's objection and not give rise to another objection, but I cannot guarantee that.

The Joint Chairman (Mr. Pankiw): Your suggestion is that in a month you will follow this up?

Mr. Bernier: Yes. The last letter was dated April 6, 2001. In a couple of months, I will follow up on the progress of the amendments that are in the pipeline and verify whether we now have a reaction to the suggestion that section 7(1) is unnecessary.


Mr. Lanctôt: I am trying to understand. I do not have a copy of the full regulations and I have not read them. Does this provision add or take something away from the regulations? Is it simply a matter of deleting the unnecessary part to ensure compliance?

Mr. Bernier: Basically, we are dealing with a drafting problem.


Mr. Macklin: This is precisely my point. With respect to the definition of redundancy, does that mean that they did not have the power to pass it? I presume that you are saying that if they want to pass redundant regulations they can theoretically do so as long as it is within their power to do so.

If it is only a redundancy - in other words, it is done twice or more - what is our point in pursuing it? Are we supposed to ensure that they keep their regulations "clean and crisp," or what is our purpose in pursuing that?

The Joint Chairman (Mr. Pankiw): I think that is part of the mandate of this committee.

Mr. Bernier: In terms of the scrutiny criteria, the committee works under, clarity, purpose, intent and the expression of intent are criteria the committee considers.

Mr. Macklin: Would it be an improper use of the regulatory power?

Mr. Bernier: In this case, I would say that it is not a cardinal sin. There are cases, however, where it is important not to duplicate a statute in a regulation because you do not want to give citizens the impression that a prohibition, for example, proceeds from an exercise of discretion by a delegate when in fact Parliament itself enacted the prohibition. Those are two very different sources of legislative authority.

Mr. Macklin: Would the ultimate remedy still be disallowance if they had authority to pass it?

Mr. Bernier: I cannot speak for a future committee, but I would doubt very much that in a case like this, on a matter really of drafting, the committee would resort to disallowance.

Mr. Macklin: Then what is our ultimate remedy? We have brought it to their attention.

Mr. Bernier: This is a committee of Parliament. The ultimate remedy of any committee of Parliament, when it fails to persuade, is to report to the Houses. It is then in the hands of the Houses and up to the Houses to decide how they want to deal with it.


Mr. Lanctôt: We are talking about the public's impression, and about my own as well. We are talking about deleting anything that is unnecessary. There are so many regulations. I am convinced that we could spend more time on certain ones and act in a manner that would make the public take this committee seriously. We are deleting things that make no difference. If it happens once too often that drafting errors are made by the same department or officials, then there could be repercussions. If these are only minor problems, let us move on to more important matters then.


The Joint Chairman (Mr. Pankiw): We have discussed that and, as was explained, our ultimate remedy is to report to Parliament.

Ms Barnes: I find myself in agreement with my colleagues from the Bloc. This is one that just does not have an impact. It is so minor for me that I do not want to waste a lot of energy around this table when there are other things that do have impact and affect people's lives. This is nothing on which I would ever seek a remedy; I would just let it sit. It is a bit of sloppy drafting in the final analysis.

However, I agree with counsel's point that sometimes sloppy drafting and redundancy give rise to confusion as if there are two different thoughts or procedures. In that situation, where the impact could be different, I would proceed. This one does not concern me that much.

The Joint Chairman (Mr. Pankiw): We seem to have an issue to resolve. Does the committee wish to pursue matters of trite law and redundant regulations that have no real impact but nonethe less are cases of sloppy draftsmanship?

Mr. Lee: Mr. Chairman, do you mean generally or in this case?

The Joint Chairman (Mr. Pankiw): In general. However, we now have a specific case. The suggestion, as I am understanding it from Ms Barnes and Mr. Lanctôt, is that we just drop it. Or did I misunderstand you, Ms Barnes?

Ms Barnes: I was not putting any general rule down, by any stretch of the imagination, because I think it is unfair to counsel for him to make those judgment calls. That is because when we see it, I think we move on it quickly. It is not a matter of him not bringing it to our attention. If that were the case, that should be a discussion that is more involved than what we have time for here.

The Joint Chairman (Mr. Pankiw): In this specific instance, am I correct in saying that you do not want to pursue this redundancy?

Ms Barnes: No.

Senator Bryden: That clarification handles my situation. There may be situations where a redundancy does have an impact. It could be a redundancy where the penalty, for example, is assessed in a regulation, and if it is done twice and it is redundant then it is a wonderful world for lawyers. In my opinion, counsel needs to look at it on a case-by-case basis and, if it is significant, then bring it in.

The Joint Chairman (Mr. Pankiw): The suggestion is that in this instance we do not pursue it in any form. Is there agreement to adopt that?

Hon. Members: Agreed.

Mr. Macklin: Just to close out the matter, though, should there not be on the record a letter to them saying something to the effect that this is redundant, that it should be cleared up, but that we will leave it to your judgment?

The Joint Chairman (Mr. Pankiw): That would be my view, but I think the will of the committee is otherwise. Thus, we will not write that letter, unless there is objection from anyone other than Mr. Macklin.

Senator Moore: We have legal counsel here. I do not want us usurping his opportunity to give advice to us. I thought the recommendation of counsel was that we review this and he would bring it back to us in a month or two.

The Joint Chairman (Mr. Pankiw): That was his recommendation.

Senator Moore: I do not want to see this tracked any more than anyone else. I would follow counsel's advice in this.

The Joint Chairman (Mr. Pankiw): Would you like to make a motion and then we will have a vote and make a final decision?


Mr. Lanctôt: I agree. I would like counsel to review items of this nature. Are they required to bring this before the committee? We can make this request. They delete anything that is superfluous so that we do not waste our time. That which you have brought before us could be discussed and decided in committee. You review the regulations, identify the problem, request corrective action and hope that the problem is indeed corrected. If corrective action is not taken within a certain time frame, and that is normally what happens, then you come back to the committee to provide a status report and to relate the problem. Perhaps the other party's interpretation is different and there is no wish to remove the offending provisions. The committee can then discuss the situation further.


The Joint Chairman (Mr. Pankiw): Do you have any comments, Mr. Bernier?

Mr. Bernier: Mr. Chairman, with regard to the last suggestion, I think this puts counsel in an invidious position. We are not the committee; we work for the committee. When we communicate to a department we bring it the committee's objection from that time on, not ours.

On the more general point, Mr. Chairman, I point out that the file was under progress. It is a minor point of drafting but if members choose to -

The Joint Chairman (Mr. Pankiw): Let us cut the debate here. We either follow up, as is the suggestion of counsel, or we drop it.

Senator Finestone: I would like to see us follow counsel's suggestion. They work hard enough and they have responsibility for the details.

The Joint Chairman (Mr. Pankiw): Let us treat that as a motion. Is there someone to second that motion?

Mr. Myers: I second it, Mr. Chairman.

The Joint Chairman (Mr. Pankiw): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Pankiw): That is now clear.


Ms Jodoin-Rasmussen: Mr. Chairman, these regulations govern the practice of procedure before the Canada Labour Relations Board. At the time the instrument was first reviewed, the chairman of the board gave an undertaking that all the committee's concerns would be addressed.

We merely suggest that we send a follow-up letter inquiring as to the status of the amendments about which we were notified on November 9, 2000.

The Joint Chairman (Mr. Pankiw): The suggestion is a request to know the status of amendments. If there are no comments or questions, is it agreed?

Hon. Members: Agreed.


Ms Jodoin-Rasmussen: Mr. Chairman, there are three provisions in this instrument that require correcting. As of September 29, 2000, the department informed us that they were working on a package of regulatory amendments to be in place in the fall of 2001. I just suggest that we follow up in the usual manner.

The Joint Chairman (Mr. Pankiw): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see appendix, p. 4A:1.)

Ms Jodoin-Rasmussen: Mr. Chairman, as noted, this instrument effects one correction recommended by the joint committee regarding the instrument registered as SOR/95-307, but new matters were raised by counsel. In its response, the department has promised to rectify those drafting errors identified, although it is well worth noting that Mr. Power's reply regarding section 7 is satisfactory.


Ms Jodoin-Rasmussen: In Mr. Wright's reply, he agrees that the department will amend the definition of permit holder in section 2 of the regulations, along with other questionable provisions. However, he does not address an outstanding issue in the second to last paragraph of Mr. Bernhardt's letter, namely, the requirement for an express retroactive validation in the Excise Act of the existing permits.

We suggest that counsel pursue this issue with the agency, if the committee agrees.

The Joint Chairman (Mr. Pankiw): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see appendix, p. 4B:1)

Ms Jodoin-Rasmussen: Mr. Chairman, the note before the committee is quite comprehensive. I really have nothing to add to it and suggest that the file can be closed.

The Joint Chairman (Mr. Pankiw): Is it agreed?

Hon. Members: Agreed.


Mr. Bernier: Mr. Chairman, the Canada Customs and Revenue Agency has recommended to the Department of Human Resources Development that the statutory amendments requested by the joint committee be made. I would suggest progress be ascertained from that department.

The Joint Chairman (Mr. Pankiw): That is the suggestion. Is it agreed?

Mr. Wappel: I have a question. Do I understand Mr. Wright 's letter to say that they do not agree with us but they are doing it anyway; is that what he is saying?

Mr. Bernier: That is correct.


(For text of documents, see appendix, p. 4C:1.)

Mr. Bernier: Mr. Chairman, while the reply promises that the amendment to be made this year will address the concerns raised in Mr. Bernhardt 's letter of November 20, that reply does not provide some of the explanations that were requested with regard to some provisions.

For example, a number of questions were asked in relation to the intended meaning and operation of section 5(3) of the regulations under point 8 of Mr. Bernhardt 's letter. Answers were not provided in Mr. Flaherty's response. I suggest that a further letter be sent asking for progress on the amendments that were promised and also asking for a reply to those questions, so we can conclude our examination of the regulations.

The Joint Chairman (Mr. Pankiw): Agreed?

Hon. Members: Agreed.


(For text of documents, see appendix, p. 4D:1.)

Mr. Bernier: I have the same comments in relation to the preceding item; they apply equally here.

The Joint Chairman (Mr. Pankiw): Is it agreed?

Hon. Members: Agreed?



(For text of documents, see appendix, p. 4E:1.)


(For text of documents, see appendix, p. 4F:1.)


(For text of documents, see appendix, p. 4G:1.)


(For text of documents, see appendix, p. 4H:1.)


(For text of documents, see appendix, p. 4I:1.)

Mr. Bernier: Mr. Chairman, as regards the instruments listed under the heading of "Action Promised," taken as a group, the committee has received one undertaking to referentially incorporate both official language versions of a Department of Transport standard; the revocation of one ultra vires provision is promised, as are 15 amendments to various regulatory provisions.


(For text of documents, see appendix, p. 4J:1.)



(For text of documents, see appendix, p. 4K:1.)


(For text of documents, see appendix, p. 4L:1.)


(For text of documents, see appendix, p. 4M:1.)


(For text of documents, see appendix, p. 4N:1.)


(For text of documents, see appendix, p. 4O:1.)


(For text of documents, see appendix, p. 4P:1.)

Mr. Bernier: If we move on to the instruments listed under the heading of "Action Taken," I am pleased to report that they make some 61 amendments as a result of the work of the committee.

The Joint Chairman (Mr. Pankiw): Mr. Lanctôt, do you have an interjection?


Mr. Lanctôt: Again, it has taken nearly three years for them to make some simple corrections, in accordance with the Official Languages Act. Why has it taken so long? Three years is a long time,

Mr. Bernier: You would have to ask Natural Resources Canada officials why the standard of two official languages was not applied.


Senator Finestone: Mr. Chairman, congratulations are in order for the team who have been so efficient in following through on all these particular issues. To find a number of issues have been answered, even in this period of time delay, must be very satisfying.

Hon. Members: Hear, hear!

Mr. Bernier: Finally, in Mr. Lee's category, there are 51 instruments reviewed on which counsel had no comment.

Ms Barnes: Can I ask - and I do not know whether other people are interested - do we keep a running tally for the year on what departments are having all of these things done? I ask counsel, for example, how many times has Immigration been involved in regulation adjustment? Would you track that at all?

I know we are keeping track of numbers. We cannot go by Department?

Mr. Bernier: No. If the committee is willing to fund a couple more person-years, we could certainly do that kind of tracking, but that would be quite a task, in terms of office staff.

Ms Barnes: To me, that would be a field on a computer file. As you are working on a file, you would tick what it is. I am not referring to retroactive tracking, but from now forward. You must be working your computers. There are only so many ministries and departments and agencies. It is a tick when you work on a file and bring it forward to this committee. I don't see that as a huge person-year need.

Mr. Bernier: Perhaps that is something we can discuss. What would be the purpose of those kinds of statistics?

Ms Barnes: More and more as a parliamentarian I am being asked to put things in frameworks, and then there is legislative. I would like to have some sense of this. I asked once before at a meeting whether some departments seem more resistant to making changes, departments that take longer.

I can tell you that I am - like all new people on this committee - shocked at how long this takes. I know it is a difficult process and I know you do good work. That is not the issue. It just takes so long.

As a parliamentarian, in my other work outside of this committee, I am being asked to approve bills that leave many issues to be dealt with in the regulations, and I will probably be defeated before those details are ever seen again. I would like now to have some sense of where the difficult ministries are for us. I cannot get that just from a number tally.

Senator Finestone: Can I just add to that question, please? For 15 years we have been wondering when we will settle the financing of the staff of this committee, who do an incredibly important job, as Ms Barnes has just said. She has a very good question, but first we should settle the payment of our staff. That would be a priority. If we get that issues resolved, we can then ask for more money to do exactly as you ask. It is rather important for parliamentarians to know where the bureaucracy is being difficult and being disrespectful of the laws of this country.

When will that be settled, Mr. Bernier?

Mr. Lee: The co-chair certainly is up to date as well, but I think Mr. Wappel as vice-chair was tracking it a bit more closely. The elements of a solution are certainly there. I believe they are about to be adopted. I just do not want to preempt anything. That decision is ultimately made by the Board of Internal Economy on the House side; I do not think the Senate had a big problem with it.

On the House side, I understand that a decision will be made to resolve it in the manner originally suggested some years ago.

Mr. Bernier: Just very quickly, I do not know if this would be the type of thing that you are interested in, but we have kept over the years what we call a report card on various regulation-making authorities. We give them a grade of A-plus, A, B, C or C-minus. This is a subjective assessment based on our collective experience in the office, but, if you want, I can certainly send you a copy of that report card.

Ms Barnes: Yes.

The Joint Chairman (Mr. Pankiw): Would that address the concern?

Ms Barnes: There is no doubt in my own mind that we are being asked more and more to produce framework legislation, the details of which will be set out in the regulations. I am sorry, but the only way that a parliamentarian gets to monitor that is by reading the Gazette and then talking to the steering committee of an already-busy committee taking a review of regulations, which I have never seen done.

The Joint Chairman (Mr. Pankiw): Those report cards will be made available to us.

Mr. Macklin: I would like to echo the spirit of Mr. Lanctôt, as a new member of this committee. I do believe that we must be, shall I say, a little more swift on some of these files in terms of our action plan. As Ms Barnes is pointing out, we face demands as legislation goes forward now that is based to a greater extent than ever before on the regulations. If we do not act quickly when our constituents are at risk, then we will have a lot to bear.

The Joint Chairman (Mr. Pankiw): Fair enough. That is certainly an attitude or approach that the committee can adopt.

Mr. Lee: Since we have expanded our focus here a little, I would note that someone in the House yesterday mentioned that Bill C-10, the marine parks bill, contained - are you all sitting down - a "Henry the VIII" clause. I do not know whether counsel or staff would want to take note of that as the bill moves through the House. A "Henry VIII" clause, for those who are not familiar with the term, should be described by counsel.

Mr. Bernier: Essentially, the term refers to that king's propensity to use that form of legislation. It is legislation in which Parliament authorizes a delegate not only to make subsidiary legislation but also to amend the parent statute itself. So the act itself can then be amended not by Parliament any more but by cabinet or a minister.

Mr. Lee: Shame.

Mr. Bernier: It is unusual.


Mr. Lanctôt: I would like to take this opportunity to make one comment. People say that this committee serves a very important purpose. Yet, in the comments on the amendments, in the case of virtually all regulations reviewed since the start of the session, we read how these are minor amendments that have been requested to satisfy the joint committee and that the overall impact is minor. We are not here to draft the regulations as such. Surely, however, there must be some important points to discuss. I have read some pretty amazing things since joining this committee.

When we refer or delete a provision because it is ultra vires, this is not something insignificant. The work of this committee is trivialized a great deal. Do we follow certain operational guidelines? Must we continue to adopt the same approach? As a new member, I would like to know if we should be turning our attention to more important matters or whether our job is merely to request pro forma corrections and nothing more. I want to understand the true role of this committee, that is what it can and cannot accomplish.

Mr. Bernier: Surely Mr. Lanctôt you do not believe everything the government and its employees are telling you. Officials may tell you that they will make the requested changes, even though they do not believe these changes are truly important. If they need a fig leaf to preserve their modesty, I do not see why the committee should take offence. If the committee deems a problem to be important and seeks to have that problem resolved, then that is what really matters.


Ms Barnes: It is my impression, though, that the largest part of regulations are perfectly in order. What we are looking at must be less than half of 1 per cent, or something like that. You have to look at everything, and I understand that.

Mr. Bernier: Our figures indicate that around 25 per cent, one quarter, of the regulatory production in a year will give rise to comments.

About 98 per cent or 95 per cent of that has to do with drafting issues, issues of conformity between the French and English versions, and so on. Substantive problems, problems of legality and so on, rights and liberties, are, in the end, a fairly small portion of the whole total regulatory production.

The Joint Chairman (Mr. Pankiw): We have dealt with all items on the agenda. If there are no other comments, we will adjourn.

The committee adjourned.

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