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Proceedings of the Standing Joint Committee on
Issue 5 - Evidence
OTTAWA, Thursday, April 3, 2003
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.
Senator Céline Hervieux-Payette (Joint Chairman) in the Chair.
The Joint Chairman (Senator Hervieux-Payette): Welcome. We will begin with consideration of the draft report, Report No. 72.
The Joint Clerk (Mr. Till Heyde): The report for the committee was prepared at the request of the Subcommittee on Agenda and Procedure in order to draw attention to certain discrepancies between the procedures and practices of both Chambers.
The report notes that some joint guidance to the joint committee on its procedures and practices would be of benefit in the conduct of its business. Should the committee adopt the report, the joint chairs could then write to the chairs of the respective procedural committees in the two Houses to identify that this has been submitted. This may then be a matter they would wish to pursue.
The Joint Chairman (Senator Hervieux-Payette): Is that fine with you, Mr. Wappel?
Mr. Wappel: It is fine.
The Joint Chairman (Senator Hervieux-Payette): We have a unanimous decision.
SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989
Mr. François-R. Bernier, General Counsel to the Committee: In this case, the joint committee objected to section 36(2) of the Ontario Fishery Regulations on the ground that express authority for this kind of provision is lacking in the Fisheries Act. In addition, these provisions trespass unduly on rights and liberties and represent, in the committee's view, an unexpected and unusual use of the enabling authority. The government's response to the joint committee's Report No. 66 was considered unsatisfactory and the joint chairs were to communicate with the responsible minister in that respect.
Given that the committee was dealing at the time with a similar provision in the Aboriginal Communal Fishing Licence Regulations, section 7, this was deferred pending developments on that file. The reply of the government to the sixth report of the committee, the Aboriginal Communal Fishing Licence Regulations Report, simply reiterated the minister's opinion that those provisions are lawful and it gave a general undertaking to address the committee's concern through legislative amendments "at the first opportunity."
The committee was explicitly warned that any such amendments would have to be preceded by consultations and that this, again I quote, "will take time." Given that in this case legislative authority for the impugned provisions is completely lacking in the Fisheries Act and that those provisions have an obvious and direct impact on the rights and liberty of the people, the note before the committee includes a suggestion that this may be an appropriate instance for the committee to consider disallowance.
Having said this, in view of the fact that there are few members of the committee here today, I wonder whether members may want to take that into consideration and defer a decision on that point to a later meeting.
Mr. Wappel: Madam Chair, I do not think that this committee can conduct its business based on the number of members that are here. Otherwise, it will conduct no business. We have approximately 25 members, and we are lucky if six or seven attend the meetings. I think we have to assume that we have a pretty good show, all things considered. I am mindful of the fact that we are back to the fisheries minister. I do not want to go through another round of discussions like the ones we had with the previous regulations. However, I note that, in this case, unlike the past case, counsel has, in effect, recommended to the committee that we consider disallowance.
I know that Mr. Bernier always puts things in an interesting way, but I want to ask him directly: Are you recommending disallowance in this case?
Mr. Bernier: Disallowance is not something we would recommend or not recommend. If, having looked at all the facts, we feel that disallowance would not be inappropriate as a corrective tool, we would lay the option before the committee. This is one of those cases.
Mr. Wappel: The fact is you do not do this often.
Mr. Bernier: That is right.
Mr. Wappel: This is an unusual step by you to lay this option before the joint committee, compared to the thousands of regulations that we have examined?
Mr. Bernier: There are two distinguishing characteristics in this case. First, there is a complete absence of legal authority. It is not an issue of being illegal because of the way in which it has been drafted; it is simply illegal. Second, and most important from the point of view of parliamentarians, we are talking about liberty, in a very direct way, of people. People may be put in jail for failing to obey the bureaucrats' dictate, if you will, included as a licence term or condition. I think that warrants a higher level of scrutiny and concern by the joint committee.
Mr. Wappel: Well, given that, and considering that we have already reported this matter to the House, I would think it would make sense — and I will not use the phrase "to follow counsel's advice" because he refuses to tell us that it is his advice — to consider the disallowance option that he laid before us and proceed with a report on the basis of the note.
The Joint Chairman (Senator Hervieux-Payette): I would add that unless it is declared invalid a regulation is deemed to be valid and binding for those who come under that regulation. I have a problem with saying that there is no legal authority for the applied regulation and so there is no solid legal ground. It costs a lot of money to go to court to deal with regulation issues. If someone were charged and had to go to court, it should be known that we are in the process of considering the disallowance. Perhaps that would benefit the charged individual. The department recognizes this, and so either it will accelerate the introduction of amendments in the House or act upon it and repeal the regulations.
Mr. White: It seems to me that this is an open and shut case. As you mentioned, Madam Chair, the department has recognized that there is a problem here. It is an issue that has dragged on for years. It was first before us in 1998. We are almost five years downstream. It remains a serious issue that has not been addressed properly by the department.
I would agree with the chair that we must do something to accelerate this. Unfortunately, we often get to the point of disallowance before we can jerk them into action. I would propose that we do that.
Mr. Lee: I agree that this certainly looks like an open and shut case for a disallowance. There is nothing else happening. I would support a move to disallow.
During the last two or three meetings of this committee, we have been dealing with the Aboriginal fishing regulations. The Aboriginal fishing regulations held a similar offence creating regulation.
I stand to be corrected if I am wrong, but my clear recollection is that the minister has agreed to put authorizing provisions into the statute. If I am not mistaken, we are to have some further consultation with the department within several weeks. The department is to include a provision that authorizes this type of matter.
On the one hand, we are accepting the process upon which we somewhat reluctantly embarked within the last two or three meetings involving the other regulations to solve the problem. Now we are dealing with an identical issue — same ministry, same statute.
If the other process were not ongoing, I would say that we would not have much choice but to disallow. We have reported once. The department has either, without prejudice or on a nolo contendere basis, agreed to fix it, if not in this file then in the file we were dealing with last week. I am cautious about moving directly to disallowance.
The chair indicated that we might accelerate this. Moving to disallowance is not acceleration; it is the guillotine.
The Joint Chairman (Senator Hervieux-Payette): A disallowance does not happen overnight. If they have been working on this for months, they should be prepared to table the changes. If they were to table in the House, it would indicate a clear intention to make these amendments.
How long would we need to wait for them to table amendments in the House? I do not sit in your House.
Mr. Bernier: Mr. Lee is correct. I did mention in my presentation of this file that an undertaking was given to consider a legislative change that would provide a legal basis for this kind of provision. That was in the response to the sixth report, but I also indicated that it was clearly stated there that this would have to be preceded by lengthy consultations. I said then, "It will take time." Those are the exact words that were used.
In another case, the usual patience of the committee might come into play. In this instance, we are dealing with a situation where tomorrow someone could be put in jail because he or she had not obeyed the conditions of a permit. Those conditions are not law. People in this country ought not to be put in jail and deprived of their liberty for failing to obey administrative documents or dictates of an official who issued a licence. You go to jail if you disobey the law. That is the concern.
I am not sure that from a point of view of principle parliamentarians should adopt legislation that would authorize this kind of provision. The tradition in this country is that we reserve criminal sanctions for breaches of the law. To present to Parliament a provision designed to make penal sanctions applicable to contravention of an administrative document is a fairly significant and novel thing to do. No one can know in advance how Parliament would react, but I could see that there might be opposition to this course of action.
Mr. White: I do not get the impression that it is at all clear that the department has connected these two issues. One of my questions to counsel would be whether his impression about the corrections given by the department regarding the Aboriginal fishing regulations is that they will address this problem at the same time. I should like a reply to that.
Notwithstanding that, we do know the extent of this problem. It is clear. We have a responsibility to act upon that knowledge. Otherwise, we are being negligent.
I agree with the chair. Starting the process of disallowance does accelerate the activity by the department. There is no doubt about that. That is what happened with the Aboriginal fishing regulations.
I maintain my position that we need to force the department to acknowledge that it has a problem. I do not think they have connected the two yet. We must have the department deal with this matter. Can counsel indicate whether he believes the department has connected the two?
Mr. Bernier: Yes, Mr. White, they have. In fact, the response to the sixth report, which was the Aboriginal Communal Fishing Licences Regulations report, does acknowledge that the issue that was raised on section 7 of the Aboriginal regulations had been raised before in relation to the Ontario fishing regulations.
It is a practice that this particular department adopted starting in the early 1990s, and the practice has spread throughout their regulations. The department tries to include provisions that create a bridge between the licence and the penal sanctions provided in the statute so as to make those penalties applicable to a breach of a licence as opposed to the traditional sanction.
Traditionally, an individual who contravenes an administrative document is subject to administrative penalties. In the case of a licence, that penalty is traditionally revocation of that licence.
That is how you sanction non-observance of administrative conditions. You do not use criminal sanctions. Fines or imprisonment have been reserved for breaches of the law.
Conditions of a licence are not law. They are administrative conditions imposed by a civil servant in the exercise of an administrative function — the licence-issuing function. That is the novel aspect of these provisions here.
Mr. Lee: If there were nothing else happening, I would be very much in favour of moving to disallowance. These provisions are making citizens liable. I hope that their counsel would be familiar with this issue. I cannot imagine a properly informed court convicting with this illegality cloud hanging over the provisions. If members want to move toward disallowance, I would never object to that.
I am trying to recall the correspondence that we had from the minister last week or the week before on the Aboriginal fishing regulations. It is my clear recollection that contained in that correspondence is a commitment to return to this committee during this session. I do not think that the use of the word "session" was an attempt to refer to the technical session of Parliament, but rather that they would return to us this spring session, which means in the next month or two.
I also know from personal conversations with the minister that this specific issue — criminalizing breaches of administrative provisions — is contained in the proposed legislative package. Knowing that and given the problem we have with the other file, I just do not see moving ahead.
However, if members want, counsel could prepare the report fairly quickly because the report has been before the committee for a long time; we know it well. It would then be in the minister's hands to tag this file onto the other one with the form of undertaking that he gave last time. He would have a few days to do that before the committee would meet to consider the draft disallowance report.
If the minister cannot give us a clear undertaking and if he cannot say that they are not convicting Canadians under these illegal provisions, then members of the committee will be advised about proceeding with the disallowance at that time.
The Joint Chairman (Senator Hervieux-Payette): Mr. Bernier suggested that the ministry is almost ready to proceed with the consultation with the committee in respect of the amendment. They will meet with committee members within a month or so. We could prepare the report and send a letter to that effect to the ministry. We could also advise them that if we do not hear from them in May we would table the report. This would push them to act a little faster to finalize these amendments.
Perhaps members of the committee understand that with respect to the fishery regulations on the West Coast and in Ontario we had a similar commitment. Concerning the Ontario regulations, we did not have such a profound discussion and undertaking to do something about it. In this case, there has to be a change in the law. Would everyone agree?
Mr. White, would you agree that we should proceed with the preparation of the report and inform the minister that if he does not table his amendment in the month of May we will table the report.
Mr. White: I agree, absolutely.
The Joint Chairman (Senator Hervieux-Payette): We do not want to table the report simply for the pleasure, so as not to abuse a procedure that is intended for something else.
Mr. White: I agree.
The Joint Chairman (Senator Hervieux-Payette): We are in agreement.
SOR/98-287 — REGULATIONS AMENDING THE CANADA STUDENT LOANS REGULATIONS
(For text of documents, see Appendix A, p. 5A:1)
Mr. Rousseau: The issue at hand in this file is to find out which provision in the act authorizes the governor in council to create, for the benefit of the minister, the right to compensation for certain monetary losses and the right to take this compensation out of the money which normally should go to the lenders who have caused the loss. The department has tried to justify the regulatory provisions by invoking various sections of the act.
But none of these sections grants such powers to the governor in council; they relate to the process the lenders must go through, to the subrogation of Her Majesty with regard to the rights of a lender, the calculation of losses by lenders, the amount of time a lender has to apply for compensation and to the general power to apply the measures contained in the act.
The minister can only point to a single provision contained in the act which clearly provides for the right to act. But he would have us believe that the governor in council has implicitly delegated powers to him under various sections of the act. This position is, in the opinion of the legal advisers, unacceptable.
You cannot give the minister such powers unless the act clearly provides for such an authorization. Furthermore, the legal advisers recommend that the committee again ask the department that the regulatory provisions at issue be repealed, unless a clear authorization is included in the act.
Mr. Lee: Unless a member of the committee has a different view, I agree with Mr. Rousseau. If the committee is firm that we do not agree with the department's position, let us tell the department then and move forward on this. I agree with counsel's position on this item.
Hon. Members: Agreed.
SORS/85-588 — NARCOTIC CONTROL REGULATIONS — AMENDMENT
Mr. Bernier: On March 12, the amendments promised by the Minister of Health, and which should have been completed by the end of 2002, and still not been published in the Canada Gazette. However, in his last letter, Mr. Flaherty indicated that pre-publication occurred in November 2002.
Adoption and final publication should happen soon. But since we are still waiting for publication, I would suggest that the co-chairs send the minister a reminder of what has to be done.
Hon. Members: Agreed.
SOR/92-26 — FRONTIER LANDS PETROLEUM ROYALTY REGULATIONS
Mr. Bernier: The draft amendments do not appear to have been prepublished, and this should be followed up by the department.
Hon. Members: Agreed.
SOR/94-165 — OIL AND GAS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS — AMENDMENT
Mr. Rousseau: As you can see from the department's letters, no progress seems to have been made. However, I would point out that the promised changes deal with drafting issues. The best the committee can do at this stage is to ask the department to establish a deadline for the completion of its work and for the adoption of the promised amendments.
Hon. Members: Agreed.
C.R.C. c. 1551 — TEXTILE LABELLING ADVERTISING REGULATIONS
(For text of documents, see Appendix B, p. 5B:1)
Mr. Rousseau: Changes have been promised and they will address the problems raised in points 1, 3, 8, 9 and 10 of the legal advisors' letter. The response with regard to point 11 is satisfactory. The department has also promised to make changes to address the drafting problem noted in point 2.
But with regard to other points, it would be a good idea to pursue the correspondence. Points 2, 4 and 5 deal with the power to exempt certain sales from the application of the law. Under the law, it is possible to grant certain exemptions under the regulations. However, the regulations stipulate that the exemptions only apply if certain conditions are met. This comes down to regulating an activity instead of simply exempting it. The act does not say that the exemption should be granted if certain conditions are met. Except as regard subsection 7(a) of the regulations, the committee's legal advisers do not accept the department's explanation that the regulations simply describe the sales to which the exemptions apply.
Point 6 deals with the use of both official languages on labels, for the purpose of protecting consumers. The joint committee has always wanted these labels to include both official languages. The department said that the regulations do not violate the Official Languages Act.
No one ever claimed this was the case in letters sent to the department. The department also wrote that these regulations do not affect people's health or safety. Again, no one has ever claimed that this was the case. The exemption contained in the regulations states that it is not necessary to include both languages in a region where only one of the languages is in use continuously by the public.
The minister explained in his letter what is meant by "in use continuously". According to the explanation, the exemption applies in areas where one official language is spoken by at least 90 per cent of the population. This means that in those regions, 10 per cent of the population will not have the right to read labels, whose aim is to prevent financial fraud, in the other official language.
If the committee is willing to accept the department's position on this issue and the criteria set out in its letter, then the regulations should clarify the meaning of "in use continuously".
As for point 7, the committee's advisers questioned the system created under the regulations allowing a supplier to use his information number on labels instead of his name and postal address. The department has promised to repeal certain clearly illegal provisions of this system. Another aspect of the regulations which is also clearly illegal, and for which the department has not promised any changes, is with regard to the $50 fee which must be paid to get an identification number. If the department agreed to repeal this provision, the rest could be deemed acceptable, even though the regulations are perhaps not the best place to deal with the remaining provisions.
In brief, the committee's advisers recommend that another letter be sent to the department with regard to points 2, 3, 5, 6, and 7. As for the point concerning the use of both official languages, I will wait for directions from the committee.
The Joint-Chairman (Senator Hervieux-Payette): There is no problem with sending a letter, but we should say that we demand a response before the end of this session. This process started in 2000 and a note was added to the file in 2002; the last letter was sent in 2003. I think that the department has had ample time to look into the matter. We therefore have to push our point of view and demand an answer by the end of the session. Do you not agree, Mr. Lee?
Senator Moore: Why in 30 days?
The Joint Chairman (Senator Hervieux-Payette): It would be after the Easter Break. It is not a big difference in time, perhaps two or three weeks. After two or three years, I do not mind two or three weeks.
Mr. Lee: This is one of these files where you could spend a month of a law school class going through all of the legal issues.
It was not clear to me from counsel that the department and the regulations could be exempt from the requirements in the Official Language Act. If there is the ability to exempt, then the only question is how to exempt. We are questioning the definition of terms that articulate the exemption. Is that what we are dealing with here?
Mr. Rousseau: We are not really dealing with an exemption of the application of the Official Languages Act. The issue is not whether the department can do so. The department can do what it wants. However, when it comes to consumer protection, the committee has always said that it is important for labels to be bilingual.
The question is whether the committee feels that this should be done under the circumstances. If so, if this is what the committee believes, should we ask the department to clarify that provision?
Mr. Lee: Now I understand. I return to point number one. If the department has the ability to exempt under the statute, why can there not be an exemption on conditions that are clearly stated?
No attempt will exempt everyone. You will not exempt everyone all the time. You will exempt a certain class or a certain time. Therefore, you must put into the regulations a description of the denominators that you will use to circumscribe the exemption. What would be the problem with a condition of exemption?
Mr. Rousseau: It depends on the description. In this case, we are dealing with the sale of products and if the sale is clearly described, there is no problem, an exemption can be granted. But problems arise when you require individuals to do other things in order to get the exemption.
If you want to take advantage of the exemption, you have to conform to certain norms. In subsection 7(b) of the regulations, you have to indicate certain elements on a receipt. The regulations do not just provide an exemption, they also impose on the parties the obligation to do certain things in order to qualify for the exemption. This is not simply a description of the transaction which takes place between the parties.
Mr. Bernier: I would add a word, Mr. Lee. You have the power to exempt. The power to exempt has to be strictly construed. It is an exception. If Parliament is given that power, that would be it. You also find in statutes, and Parliament can give that power, the authority to make regulations exempting subject to prescribed terms and conditions.
Those are two very different powers. I can give someone a power to make regulations exempting sales or a power to make regulations exempting sales subject to prescribed terms and conditions.
The second case, the exempted sale, may still be regulated through the imposition of conditions. I am saying that you are exempted if you meet this, if you do this or if you file this report. Effectively, it is a tool to regulate the conduct of the person.
In the simple exemption scheme, all I can do is describe the sale that is exempted. That is the end of it. I cannot try to reach and regulate the conduct of people further through the imposition of conditions. Does that help?
Mr. Lee: It strikes me as involving a conflict between semantics and automobile transmissions. I do not know.
I am happy to let the intellectual debate unfold and have counsel continue to correspond with the ministry in order to make progress.
Mr. White: It is obviously not the job of this committee to make policy, but I cannot help but make the intervention that if indeed the department is concerned about consumer safety then I can tell it — if the government is listening — that in a place like Richmond, B.C, neither French nor English would be used on the label to describe the problems. It would need to be in Mandarin and Cantonese. In my riding, the label would have to be in English and Farsi. In Surrey, the label would need to be in Punjabi and English.
The modern world has overtaken those old regulations and made them obsolete in some parts of the country.
The Joint Chairman (Senator Hervieux-Payette): We could have many regulations in many languages. This would help my friend from the West to be bilingual also, although not French-English.
I understand the argument presented by Messrs. Bernier and Rousseau that when you have an exemption it must be exempting one single thing. You do not need to have a number of conditions. If you want to do that, the conditions must be made at the time of the exemption. Must it be said in the law?
Mr. Bernier: In the statute.
The Joint Chairman (Senator Hervieux-Payette): In this case, the conditions are being imposed after the fact.
Mr. Bernier: Parliament authorizes the Governor in Council to exempt sales in this case. Parliament did not authorize the Governor in Council to exempt sales and then impose terms and conditions on that exemption. Parliament could have done that; it has done that in other statutes. That phrasing would be present. It is not found in this act.
The Joint Chairman (Senator Hervieux-Payette): We will continue to lecture them about how to proceed.
Mr. Bernier: Madam Chairman, we need a decision by the committee on the issue of the labelling. Is the committee content to accept the regulation as it is, that is, requiring labelling in English only?
The Joint Chairman (Senator Hervieux-Payette): No.
Mr. Bernier: They could specify the criterion used.
The Joint Chairman (Senator Hervieux-Payette): No. If we have had a tradition of doing something in this committee for many years, I do not see why we should change it.
Mr. Bernier: You were asking.
The Joint Chairman (Senator Hervieux-Payette): No. I say that we should pursue it as we have done previously.
Mr. Lee: I do not wish to pick a fight, but as much as we have tried to look out for the consumer and potentially vulnerable citizens in our work, our focus is not so much policy as it is legal compliance. The department can fairly reply to us that they are complying with the law. Another committee should be looking out for consumer rights or consumer protection.
However, we do have our rubric of the unusual or unexpected use of power. Therefore, I do agree with the chair. Let us continue.
The Joint Chairman (Senator Hervieux-Payette): We have many products coming from China in the two officials languages; therefore, China is capable of labelling with both official languages. It is not as if it were a barrier.
Mr. Lee: I agree with the chair. Let us continue with the program.
Hon. Members: Agreed.
SOR/99-9 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS
(For text of documents, see Appendix C, p. 5C:1)
Mr. Rousseau: In this file, an amendment was promised with regard to point 1. In point 2, the committee's advisers noted that the regulations require that a notice be sent before September 30, 1998, although the regulations were adopted on December 16, 1998. Does this mean that those people who gave notice automatically violated the regulations as soon as they were adopted?
In its response, the department explained why this provision did not cause any prejudice to anyone. Even though from a strictly legal point of view you could challenge certain points raised in the department's response, the committee's advisers feel that the response can nevertheless be considered satisfactory for practical reasons.
In point 3, the department did not understand the drafting problem highlighted by the committee's advisers. We should write the department once more with regard to that matter, and, at the same time, also mention that from a legal point of view, its response with regard to point 2 is not entirely satisfactory.
Without insisting any further, it would be a good idea to note that, on the one hand, the committee feels that the department's legal explanation raises some doubts, but that, on the other hand, it recognizes that from a practical point of view, the situation is acceptable.
The Joint Chairman (Senator Hervieux-Payette): Is everyone in agreement?
Some Hon. Senators: Yes.
SOR/2000-272 — TOBACCO PRODUCTS INFORMATION REGULATIONS
Mr. Rousseau: When the committee studied this file, the department had generally promised to make changes in response to all the points raised by the committee's legal advisers. Draft regulatory amendments were published in the Canada Gazette. Some of the proposed amendments will address the problems we pointed out to the department.
As for the rest, the committee's legal advisers will write to the department once more. The issues raised deal with drafting matters or information requests, and the department has promised six new amendments and provided satisfactory answers in six other cases. We will keep track of the department to see if it follows through on its promised amendments and we will keep the committee abreast of any developments in the usual fashion.
The Joint Chairman (Senator Hervieux-Payette): When would the regulations normally come into effect? As it now stands, we are dealing with draft regulations which have not yet been passed, right?
Mr. Rousseau: That is right, they have not yet come into force.
The Joint Chairman (Senator Hervieux-Payette): In our letter, we should ask them when they intend to see that the new regulations are passed.
Mr. Rousseau: We will do that.
SOR/2000-273 — TOBACCO REPORTING REGULATIONS
Mr. Rousseau: In this file, the committee was promised that an amendment would be made and that this amendment would reflect all our comments. But the regulatory amendments which were then published did not address all the issues we raised. The committee's legal advisers therefore asked the department to provide a detailed response addressing the points which were not subject to amendment.
On six of those points, the department promised amendments or provided satisfactory responses. With regard to the second paragraph of the letter dated November 21, 2000, the act stipulates that information to be provided by manufacturers be contained in the regulations, but the regulations give the minister the power to require additional information on top of the information already requested under the regulations.
But there is nothing in the act authorizing the minister to request additional information. The department has offered to limit the power of the minister to request clarifications. But this solution is not satisfactory. If the information provided is neither clear nor complete, you could argue that the individual who provided the information did not abide by the regulations and that he should provide the necessary clarifications and specifications as stipulated under the regulations as currently worded. It is therefore not necessary to give the minister the power to request this information.
Points 4, 5 and 13 are provisions which contain terms which are not clearly defined. In these cases, it would be very useful to include the relevant definitions in the regulations. This is the case, for instance, in point 4, which, as the department explained, was modeled on the Food and Drugs Act in the drafting of the regulation.
That is true, but the department did not say that the Food and Drugs Act contains definitions which specify the meaning of the terms used, which is not always done in the regulations dealing with tobacco. The committee's advisers therefore recommend that another letter be sent to the department highlighting the issues raised in points 3, 4, 5 and 13.
The Joint Chairman (Senator Hervieux-Payette): Is the substance of the act still being challenged before the courts? There are two issues at hand. The act is still before the courts and that is why the regulations still have not been adopted. In both cases, could we find out when they intend to introduce the new regulations?
Mr. Rousseau: Very well, Madam Chair.
SOR/2000-374 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS
(For text of documents, see Appendix D, p. 5D:1)
Mr. Bernier: Amendments are promised in this case to take care of the problems raised in points 5 to 8 in Mr. Bernhardt's letter of October 31.
Mr. White: I have a number for the SOR that does not correspond to anything in my package. It was not 374 that came across the translation.
Mr. Bernier: The reply on item 3 is explanatory. I would suggest, however, that the replies on points 1, 2 and 4 are unsatisfactory and that these issues be pursued with the department.
On point 1, section 2.9(3) of the regulations requires employees climbing ladders to carry tools in a safe manner. Section 126(1)(c) of the Canada Labour Code requires all employees to take necessary and reasonable precautions to ensure their safety. This, one assumes, would include carrying tools in a safe manner while climbing ladders. If that is the case, then section 2.9(3) in these regulations is unnecessary.
Mr. Bernhardt specifically asked whether section 2.9(3) added anything to section 126 of the Canada Labour Code, but the reply does not address that question. It refers to the purpose of the regulation, which is, of course, to prevent workplace accidents. We had an inkling of that. This can also be said of the Canada Labour Code. That is also its purpose, generally, including section 126 of the code. It is not the purpose of the act or the purpose of this regulation that are the issues but whether section 2.9(3) serves a distinct legal purpose. If that section does not serve a distinct legislative purpose or if the purpose that it serves is already covered by the act, then it should be removed from the regulations. If it serves a purpose other than that which would be caught by section 126 of the act then, of course, it should remain.
Under point 2, section 2.20(1) treats heating, ventilating and air conditioning systems as being under the control of an employer as soon as the employer is the principal tenant in the building in which those systems are installed. We are informed by the department that it was an assumption of the authors of that regulation that any employer who is a principal tenant in a building would have sufficient bargaining power with the landlord regarding those systems that they could be considered to be under the employer's control.
We believe that is a questionable assumption. Employers or employees, for that matter, ought not to be subject to legal requirements on the basis of suppositions. This is really what is being done here and it seems objectionable. We believe this point should be pursued.
Finally, under item 4, section 2.24(2)(a) refers to a duty to "take into account" the referentially incorporated guidelines. This seemed rather vague and the intent of this provision was questioned. The reply is not particularly helpful and states that the intent is that the persons consider complying with the applicable portions of those guidelines when they prepare the instructions required by that section.
Therefore, if you are requiring that people consider complying with something, it would seem that the intent here is not to prescribe a legal duty or define a legal obligation but merely to make a suggestion that those who prepare those instructions have a look at the guidelines in question, which they are then free to ignore. That being the case, I would suggest that this provision does not belong in regulations and should be removed. If the committee agrees, we will write on those points.
Mr. Wappel: On the first point, I am not clear. Let us assume for a moment that the people who drafted 2.9(3) were not familiar with the Canada Labour Code and missed the point that the issue has already been covered. My question is: If the content of 2.9(3) is not illegal but is repetitive of information found elsewhere, is it our mandate to micro- manage and insist that repetitions be removed? What is wrong with repetition, legally?
The Joint Chairman (Senator Hervieux-Payette): We have enough regulations.
Mr. Wappel: That is a policy issue, and I agree that we may have too many regulations, but I am referring to our committee's power.
Mr. Bernier: You will have noted, of course, that counsel did not suggest disallowance as a possible option on the ladders. The answer would be that scrutiny criterion number 13: clarify the purpose and intent or purport of a regulation. We have always done that if we have felt that the drafting could be improved. If redundant material appears in a regulation, we would make a suggestion. That being the case, that is strictly and only a case of proper and good drafting.
Mr. Wappel: We are basically providing them with guidelines for the best possible drafting of regulations, presumably for the future. Is that correct?
Mr. Bernier: Yes.
Mr. Wappel: Thank you.
The Joint Chairman (Senator Hervieux-Payette): Mr. Bernier will advise them on these minor corrections.
SOR/2000-388 — REGULATIONS AMENDING THE MARINE OCCUPATIONAL SAFETY AND HEALTH REGULATIONS
(For text of documents, see Appendix E, p. 5E:1)
Mr. Bernier: In this case, amendments are promised in relation to points 1, 2 and 4 and the reply on point 3 regarding section 14.6(1)(g) can be considered satisfactory. We will follow the progress, of course.
The Joint Chairman (Senator Hervieux-Payette): Everything is okay. Thank you.
WEIGHTS AND MEASURES SPECIFICATIONS, SGM-1
WEIGHTS AND MEASURES SPECIFICATIONS, SGM-3
WEIGHTS AND MEASURES SPECIFICATIONS, SGM-7
(For text of documents, see Appendix F, p. 5F:1 )
SOR/96-13 — PUBLIC LANDS MINERAL REGULATIONS
(For text of documents, see Appendix G, p. 5G:1 )
SOR/96-400 — CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT
(For text of documents, see AppendixH, p. 5H:1)
SOR/96-401 — TRENTON AIRPORT ZONING REGULATIONS
SOR/2000-226 — REGULATIONS AMENDING THE FEDERAL ELECTIONS FEES TARIFF
(For text of documents, see Appendix I, p. 5I:1 )
SOR/2001-254 — REGULATIONS AMENDING THE CONTROLLED PRODUCTS REGULATIONS
(For text of documents, see Appendix J, p. 5J:1)
SOR/2002-128 — REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 1989
(For text of documents, see Appendix K, p. 5K:1)
SOR/89-288 — HAZARDOUS MATERIALS INFORMATION REVIEW REGULATIONS, AMENDMENT
(For text of documents, see Appendix L, p. 5L:1)
SOR/2002-154 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix M, p. 5M:1)
SOR/2002-208 — REGULATIONS AMENDING CERTAIN LABOUR PROGRAM, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix N, p. 5N:1)
SOR/2002-221 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix O, p. 5O:1)
SOR/2002-380 — REGULATIONS AMENDING THE BRITISH COLUMBIA SPORT FISHING REGULATIONS, 1996
(For text of documents, see Appendix P, p. 5P:1)
SOR/2002-381 — REGULATIONS AMENDING THE FISHING AND RECREATIONAL HARBOURS REGULATIONS
(For text of documents, see Appendix Q, p. 5Q:1 )
Mr. Bernier: I will deal with all of the instruments listed under "Action Promised" and "Action Taken" together. A total of 46 amendments have been promised in respect of those instruments. In addition, some 56 amendments have been made as a result of work of the joint committee. One illegal regulation has been repealed and replaced. There is also an amendment to the French version of section 12(2) of the Hazardous Materials Information Review Act that was made as a result of the work of the committee. There are also 82 instruments reported to the committee that have been reviewed by counsel and on which we have no comments to make.
Mr. Lee: I have a future business question. May I raise that now?
The Joint Chairman (Senator Hervieux-Payette): Please, go ahead.
Mr. Lee: There had been some discussion about inquiring about what is described as the CRTC Part II tax. Have we made a decision in connection with that, counsel, in terms of our future agenda? Are we still working on that?
Mr. Bernier: I believe we discussed this with the chairmen over the phone. Mr. Wappel had also made an inquiry about other unrelated fees, such as marine services fees, and raised a similar question about when a fee becomes a tax and how far you can go in the collection of fees by the departments. I had suggested to Mr. Lee that the two files could be brought to the committee together, after the next House of Commons break, perhaps at our first meeting following. It would be accompanied by an outline of the two sides of the argument.
It might be an interesting exercise for the committee to then call witnesses from Treasury Board to discuss the general principles applicable to fee imposition and cost recovery in the government. The committee could explore the elements of such things. The committee may also wish to call witnesses from the two departments concerned to explore those particular situations in which some citizens felt that the fees were somewhat excessive.
The Joint Chairman (Senator Hervieux-Payette): I will explain for those who were not here at the beginning. I raised this matter years ago because I was in the telecommunications business. The budget for CRTC budget is, say, $50 million, and they charge fees totalling $150 million. What happens with the $100 million extra? The contention at the time was that the $100 million was for creation. However, I was not convinced that this was the appropriate way of raising funds for creation. The same question came from the industry recently because in the last budget the money for creation was reduced.
We discussed the matter with Mr. Lee and other people. I said, "Let's address the question because it is happening in many other departments."
The same situation exists in the food and drug area. The pharmaceutical industry is being charged a fee for each clinical trial. They are charged, let's say, $50 million a year, but the cost to the department is $20 million a year. What happens to the other $30 million?
Perhaps we could clear up this question. If it is doable according to our legislation, let us do it.
The issue is that a fee is usually in the bill. The manner in which it is implemented is part of the regulations.
What is a tax compared to a fee? How do we make sure that the Canadian taxpayers, as well as parliamentarians, are comfortable with the system and that the legislation is being applied properly?
Those are the motivating issues for pursuing this matter, in a nutshell.
Mr. Wappel: I will make a comment for the information of committee members, along the same line as your comments.
I brought the marine services fee question forward. The Finance Committee of the House of Commons considered this issue at pre-budget consultations. In their report, they actually made a statement that there was at least an argument that the marine service fees went beyond the nature of a fee and into the nature of a tax.
Representatives of the industry brought this my attention. I brought it to Mr. Bernier's attention in the hope that the committee would consider it.
I am pleased with the suggestion that we consider both issues at the same time and get a feel for the matter. Examining whether a charge is a fee or a tax is one of the key roles of this committee. I am pleased that we will move on this.
The Joint Chairman (Senator Hervieux-Payette): Hydro-Québec is paying a dividend to the Quebec government of $800 million. They are not charging what they should charge. We are taxed indirectly. In this case, you have the poor people paying the same as the rich people.
In addressing this question, the committee would do excellent work on the legal approach to these questions: What is being considered a cost? How many things are considered to be covered by the fee?
Perhaps we will be able to clarify the entire question on the budget side and the question of accountability of government. I would be interested to clarify that, because we would provide a good service to our country and our citizens.
Mr. Lee: The suggestion is that we will take a look at the law involved after the break, counsel will spin it up as best he can and then we would move to witnesses?
Mr. Bernier: Something occurred to me as I was listening to the joint chair. In order to save time and to accelerate the matter, would the committee be prepared to give instructions today for the clerk to arrange for an initial appearance by Treasury Board officials, as opposed to waiting for me to bring something before the committee and then proceed to decision?
Hon. Members: Agreed.
Mr. Bernier: We could schedule a May 15 meeting, if possible, to have witnesses from Treasury Board provide an overview of government policies in that area.
Mr. Lee: That is a good plan.
Mr. Bernier: At the following meeting, we could go to the actual cases using that knowledge.
The Joint Chairman (Senator Hervieux-Payette): Please submit a draft letter to Mr. Grewal and me. If we are happy with it, it could be sent to the Treasury Board people.
Mr. Lee: I agree. That is a great suggestion. Let us do that. As we embark on that, it would be good for committee members to have an outline of the nuts and bolts issue with which we are dealing. Thank you.
Mr. Wappel: I noticed that in the matters that Mr. Bernier addressed on "Action Promised" and "Action Taken," there are three dealing with fishing regulations in which the department apparently accepted what we had to say. If I am not mistaken, that is cause for celebration.
The Joint Chairman (Senator Hervieux-Payette): You wish to underline that in some cases the department accepts the decisions of the committee.
The committee adjourned.