Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 4 - Evidence, February 3, 2005

OTTAWA, Thursday, February 3, 2005

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:33 a.m. for the review of statutory instruments.

Senator John G. Bryden and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.

[English]

The Joint Chairman (Senator Bryden): Before we begin today, let me wish all a happy 2005.

We have a couple of preliminary items to deal with, after which I would ask the Joint Chair, Mr. Grewal, to chair the agenda.

There is a proposed schedule of future meetings, which may be subject to change, available to members today. The schedule starts Thursday, February 17, and runs until June. All meetings are on Thursdays at 8:30 a.m., and possibly in this same room.

One item was left over when we recessed at Christmas — that is, the issue of developing a method to address the question of the External Advisory Committee on Smart Regulation and the document that was produced and reported by that committee. Our steering committee did investigate, and the results are that the report of the committee on smart regulation has already been referred to the House of Commons Industry, Natural Resources, Science and Technology Committee. That committee has held hearings on the issue. It is my understanding that a report on the report of the External Advisory Committee on Smart Regulation has been made to government. The steering committee determined that it would be appropriate for this committee to look at the report after the government response is received. In that way, this committee could hear from government officials on the matter. The external committee no longer exists. With the concurrence of the committee, we will proceed in that way. Are all agreed?

Mr. Hanger: Has the House of Commons Industry, Natural Resources, Science and Technology Committee finalized its position on smart regulation? Would we simply examine what that committee has done? If so, then we would not add much to the outcome of their report.

The Joint Chairman (Senator Bryden): No. I think the concern is that that report had to be referred to a committee. It went to the House Industry Committee, which held one hearing, and the report is going back. The concern is that the report could have been buried, whereby interested parties would not have seen it. That is not the case, now that the Industry Committee will prepare a report for the department, who will state its position on the matter. It is more likely that the department will now come back with a position, but we need to give them a reasonable period of time to respond. We would not be blocked from taking a position.

Mr. Hanger: There was some concern expressed about the issue of deregulation. The minister does not want to go that far. It seems that the committee did not sit for long to develop some level of recommendations for a review of these regulations. I cannot imagine they did a thorough job of it.

The Joint Chairman (Senator Bryden): I agree with that. Mr. Alcock, the President of the Treasury Board, is quite interested in this and would like to see a careful study take place. It is my understanding that he believes there is something to be had out of this. I doubt he will simply let it sit. It is my intention, if no one objects, to contact Mr. Alcock's legislative assistant on this matter, but perhaps not before the next meeting, to determine what role this committee might have.

Mr. Lee: Mr. Chairman, in view of the fact that the smart regulation piece is seen as a reform initiative and that we have new ministers and a new government, I would be cautious that we not leave it so long that the train leaves the station before we have an opportunity to engage. There are some important principles that this committee has addressed in previous reform initiatives in a constructive way. I would look for an opportunity to formally engage on this to ensure that the minister knows we wish to engage. I know that that minister wants us to look at this in some way. He asked me to look over a piece of this during one weekend, and I did that. It was a restful weekend and it was not exciting reading but we should handle it in that way. Mr. Chairman, will you speak with the minister or with someone in the minister's office?

The Joint Chairman (Senator Bryden): Yes.

Mr. Lee: Please ensure that a delay until everyone else looks at it does not result in us missing the train. I would be ready to engage as soon as there is a window rather than wait for others to do their homework.

The Joint Chairman (Senator Bryden): If the joint chair and I could coordinate our schedules, we would attempt to speak with the minister, or with an official familiar with the minister's position in respect of this, and report to the committee at the next meeting. Would that be acceptable?

The Joint Chairman (Mr. Grewal): On this subject, we should engage the minister to determine the status of progress, and we should determine what this committee wants to do with the smart regulation material, whether it should be for information or held for review and recommendations, either formally or informally. We might require an extra meeting for this purpose. Would members be willing to do that, if we find that a review would require testimony from experts?

The Joint Chairman (Senator Bryden): If I may, it is important that we do the job that we are mandated to do, even though it might not be exciting. I would like to hold to the current schedule of meetings to fulfill our mandate. Therefore, if we were to have an extra meeting, it would be during an off week in the schedule. The minister interested in this issue of smart regulation is Mr. Alcock.

The Joint Chairman (Mr. Grewal): The Privy Council Office was also involved.

The Joint Chairman (Senator Bryden): Once we are in a position to proceed, we will have someone refer us to the most appropriate witnesses. We will try to have more information for the committee at the next meeting.

One additional item is the request by a member of the committee for some detailed information in respect of the costs of some regulations within municipalities, and we have a response for that. I would ask counsel, who has a letter to that effect, to comment on this for Mr. Hanger, although I believe the matter was addressed.

Mr. Hanger: Yes.

Mr. François-R. Bernier, General Counsel to the Committee: Mr. Chairman, the note pretty well speaks for itself, unless someone has any questions about it. The committee indicated that it wanted counsel to look at the regulatory impact analysis statement, RIAS, that was prepared for the DNA identification regulations, to determine whether the RIAS made mention of the financial impact of this legislation on provincial and municipal governments.

As indicated in the note, the only financial information mentioned in the RIAS is an estimated total cost of $24.7 million for implementation and operation of the national DNA data bank. The note closes by saying that, under the legislation, section 13 of the DNA Identification Act mandates a review of the legislation by Parliament within five years of its coming into force. The deadline for that would be June 2005. If that review has not been undertaken by then, I would suggest that this would be a suitable forum for members to attend to raise the issue of implementation cost, because that has become a concern since the act and the regulations came into force.

I would add that I saw yesterday an amending bill to the DNA Identification Act currently before the House. I imagine that with respect to whichever committee the amending bill is referred to, there would be an opportunity for members concerned about the financial aspects of the regulations to raise those issues.

The Joint Chairman (Senator Bryden): I do not think anyone in this room knows whether there is a process under way to carry out the review that is required by June. There is a significant amount happening. Perhaps it would be appropriate to ask our clerks to determine whether there is a review plan and when it might be. It may be connected to the amending bill before the House. If there is no objection, I would ask that our clerks let us know if that will happen and what the time frames will be.

We will move to the first item on today's agenda.

The Joint Chairman (Mr. Grewal): The first item is letters to and from ministers.

SOR/92-738 — RAILWAY INTERSWITCHING REGULATIONS, AMENDMENT

Mr. Bernier: Thank you, Mr. Chairman. Prior to recent amendments, the Railway Interswitching Regulations provided for maximum rates to be charged for interswitching. There was no statutory authority for the fixing of rates in this fashion. The authority of the Canadian Transportation Agency is to fix the precise rate to be charged rather than a maximum rate, which leaves to the industry a discretion to decide on the actual interswitching rate. This issue goes back to 1993 and has involved extensive correspondence between the Canadian Transportation Agency and the Department of Transport and the Minister of Transport. At one point, the lack of progress in this matter led the committee to issue a certificate of attendance compelling the appearance of the Deputy Minister of Transport before the committee. In the course of that appearance, the deputy minister assured the committee that legislation would be introduced that would allow the prescription of maximum rates.

That proposed legislation was introduced as promised in 2003, but the bill died on the Order Paper. A letter, which members have before them today, was sent to the new minister to ask whether he intended to reintroduce the bill. The answer appears to be that the department wishes to undertake further consultations and may have further amendments to suggest. I understand, then, that the bill will not be reintroduced anytime soon.

The minister also indicated that the Canadian Transportation Agency was reviewing interswitching rates and that this would give an opportunity to amend the regulations, to bring them into line with the statutory authority. This, I am happy to report, is what has taken place. Amendments registered as SOR/ 2004-201 and 2004-203 have been made that established fixed interswitching rates in accordance with the scope of the authority delegated by Parliament.

The Joint Chairman (Mr. Grewal): Any questions? Let us move on to the next item.

SOR/97-313 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (923)

(For text of document, see Appendix A, p. 4A:1)

Mr. Bernier: A copy of Bill C-28, to amend the Food and Drugs Act, is included in the material distributed to members. This bill, and more particularly section 30.2 and the proposed section 30.1(r), will, if enacted by Parliament, provide full legal authority for the interim marketing authorization scheme that was queried by the joint committee. It was the view of the committee that there is currently no authority for the exemption of food from the application of the act or regulations on the basis of an authorization issued by a public servant. If the bill is adopted, this file can be closed. We will monitor the progress of the legislation, of course, and keep the committee informed.

SOR/2002-159 — ORDER 2002-66-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2002-193 — ORDER 2002-66-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2002-287 — ORDER 2002-66-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2002-320 — ORDER 2002-66-06-01 AMENDING HE DOMESTIC SUBSTANCES LIST

Mr. Peter Bernhardt, Counsel to the Committee: Mr. Chairman, in the course of reviewing all of these instruments, an error in the French version of the Consolidated Index of Statutory Instruments was picked up. This was drawn to the attention of the appropriate officials. The error was corrected in subsequent versions of the index, so the file can be closed.

The Joint Chairman (Mr. Grewal): Excellent.

SOR/2003-319 — REGULATIONS AMENDING THE SULPHUR IN GASOLINE REGULATIONS

(For text of document, see Appendix B, p. 4B:1)

Mr. Bernhardt: Mr. Chairman, these amendments made two corrections requested by the committee. A new point was raised that while the French version of section 1.1(c) expressly refers to the concentration of sulphur, in the English version it is left to be inferred that the concentration referred to is a concentration of sulphur. It simply talks about concentration. The department replied that while the English version could be more precise, when read in context there is not really any discrepancy. It, therefore, proposes to amend the English version but only when the regulations are next amended.

The committee has accepted this kind of undertaking in the past in the case of very minor amendments such as this one, provided the amendment is made within a reasonable period of time, say two years. If members are in agreement, the department could be advised of this.

Hon. Members: Agreed.

SOR/98-215 — IMPORTATION AND EXPORTATION OF FIREARMS REGULATIONS (INDIVIDUALS)

Mr. Bernier: In July 2001, counsel raised a number of concerns in relation to these regulations. One concern was that a number of provisions in the regulations confer on customs officers a discretion to decide in what manner a non- restricted firearm imported into the country is to be declared. The act, however, clearly requires that the manner of making a declaration should be prescribed by regulation. The issue, then, is one of legality.

About a year later, on June 26, 2002, the Canadian Firearms Centre agreed with the comments of counsel and stated that these concerns would be addressed ``as we move to amend our regulations in the next few months.''

The next few months have brought us nearly two years later and the regulations still have not been amended; nor has the centre been able to provide any sort of time frame for the making of these amendments. In light of this, we would suggest that the next letter be from the chair of the committee to the responsible minister asking for a precise timetable for the removal of the ultra vires provisions.

Mr. Anders: I have in my constituency individuals who are in Olympic shooting, professional pistol shooters, et cetera, in Calgary — as you well know, we have an Olympic legacy there with the Calgary Olympic Development Association and everything associated with that — who are driven to distraction by the delay on this. They are not able to effectively compete and practise with international colleagues in the United States and other countries as a result of these regulations.

As a result of this, we are literally killing the Olympic shooting sports in Canada, inhibiting our ability to garner medals of any type and compete competitively. These people, I think, would certainly feel that they have a Charter of Rights violation in terms of their freedom of association. They could certainly argue that it trespasses unduly on their rights and liberties. They are not able to do something they clearly did before.

Number 11 — I think it does qualify as an unusual and unexpected use of power. I do not believe that the firearms registry was intended to kill the Olympic shooters. I do not think that was the intention — certainly, I hope not.

We obviously have a problem with number 13, which makes it defective in drafting and requiring elucidation; hence, the reason we are talking about not having specifics provided about it nearly two years later.

Therefore, I come to this: Is there something we can do beyond a letter? I know we talked about having the chairmen write a letter, but is there a possibility of ramping that up somehow? It is just ridiculous that we are actually wiping out a generation of Olympic shooters in this country as a result of this.

The Joint Chairman (Mr. Grewal): I must say, I was a shooter on the university team and I understand your feelings. I certainly agree that there was not any intention to kill the support by the registry. If that is a concern, I would like to hear from counsel as to what we can do, and if we can do something, sure.

Senator Moore: Could we not ask for a reply by the end of this month? It has been a couple of years, so why do we not just put some timetables on this stuff to get it moving ahead and let them know that we are serious about it. In addition to all of the concerns that Mr. Anders raised, they still are not treating this committee very fairly.

Mr. Bernier: If I may, senator, I think the committee must be clear here. The provisions involved here are very distinct provisions that refer strictly to how you declare the import of an unrestricted firearm coming into the country and the manner of declaring.

I will guess here that Mr. Anders' scope of concern is somewhat broader than that. Is it a concern that the whole of these regulations are contrary to the charter, or simply the provisions regarding declaration of firearms?

Mr. Anders: While I personally do have issues with the gun registry, my concern is aside from that. My concern is strictly with regard to the importation and exportation. Olympic shooters have to travel internationally to do what they do. If there is an arbitrariness that is applied — which is being applied, by the way — these contestants pack their gear and either drive to a border crossing or prepare to get on a plane, et cetera. They encounter customs officials who sometimes let them through, sometimes not. It is capricious. The athletes have costs associated with entrance fees, plane tickets, et cetera. In some instances, the very instrument the athlete will compete with is taken away. It is very frustrating for these people. As a result, many of these athletes compete in fewer and fewer international competitions. The sport becomes more of a domestic one. This situation is killing Olympic shooting in Canada.

The Joint Chairman (Mr. Grewal): The issue is much broader and, of course, of national importance. The committee's mandate allows us to deal with the legality of it, as counsel mentioned. Would it be possible for you, as a member of Parliament, to draft a letter explaining your concerns. The committee will deal with the legality of the reporting for the time being. If you think the issue should be brought before the committee to deal with the regulatory requirements under its mandate, then we could look into that.

Ms. Wasylycia-Leis: Skimming through the correspondence suggests to me that the regulations dealing with import/ export are being held up because of the mess with the entire centre and by government's response to engage in a ministerial review. I think they are suggesting that, while this is happening, it is difficult to deal with some of the outstanding regulatory matters. Therefore, it is incumbent upon us to suggest that while the review is taking place this item must be addressed separately because of the extenuating circumstances around Olympic activities. I do not think we want to jeopardize the review in any way, given the controversy around the program.

Mr. Wappel: Ms. Guarnieri is no longer the Deputy Minister of National Defence but is the Minister of Veterans Affairs. I would have to assume that she has concluded her report, although I have not heard anything about it. As to Mr. Anders' request, we could take the senator's suggestion, or we could ask Mr. Baker to appear before the committee with an update and ask him why it is taking so long. That would ramp it up, Mr. Anders.

Mr. Anders: I appreciate that suggestion, Mr. Wappel, and I agree with you. Earlier, we discussed whether this matter is a specific or a broad issue. It basically boils down to not stipulating what is allowed and what is not allowed. It is the total capriciousness and arbitrariness of it. As a result, these competitors do not have a clear understanding, because the legislation does not provide it, of what they can and cannot transport across the border. Items are seized on some occasions; on others, these same items will be allowed to cross. I second the suggestion of Mr. Wappel.

The Joint Chairman (Senator Bryden): I have one comment. The issue extends beyond simply that. I have spoken to outfitters who are facing a great deal of flack and loss of customers that come up from the U.S. because at the border they are finding that they have not met the requirements, although they thought they had done what was necessary. Their weapons may be legal but there is no standard form to be filled out. If you meet all the requirements in the form, then you know you will be able to get through. If a customs officer has a bad morning, then a person might be turned back. These people will not accept such a hassle and will go somewhere else. That is an important part of the issue because it affects the outfitters' livelihoods.

The Joint Chairman (Mr. Grewal): I would ask counsel to comment so we can determine how to proceed.

Mr. Bernier: Briefly, the issue raised by the joint chairman goes specifically to the issue raised by the committee — that is, that the form of the regulation is not fixed within the regulation as to what must be declared. That decision is left to the discretion of each customs officer, presumably with administrative departmental guidelines, leaving the door open to arbitrary treatment.

The question that Mr. Anders raised is broader. In this case, we are looking at the clarity of the definition of ``non- restricted firearms,'' so that people know what they can attempt to bring into the country. We can take another look at the regulation from that point of view. I do not recall that being questioned when we first looked at the regulations. Certainly, we can have another look at it, to see if there is a problem, an ambiguity or a lack of clarity in the definition.

Mr. Anders: I would like to have a sense of direction from the committee. We have had two substantive suggestions this morning. One is to ask for a reply by the end of the month; the other is to ask Mr. Baker to appear. I am fine with either suggestion.

The Joint Chairman (Mr. Grewal): Thank you for bringing this issue forward. We can write that letter and demand an answer in a shorter period of time, perhaps by the end of the month. Depending on the answer, we can arrange to have Mr. Baker appear before the committee, if that is mandated. Would that be fair?

Hon. Members: Agreed.

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

Mr. Bernier: Some 10 years ago, Mr. Chairman, a number of concerns, mostly of a drafting nature, were raised with the regulation-making authority. As early as 1993, it was proposed to simply revoke this instrument, but this remains to be done. The latest communication from the department states an expected date of some time in early 2005. This will be monitored and progress will be reported to the committee.

[Translation]

SOR/91-499 — CANADIAN INTERNATIONAL TRADE TRIBUNAL RULES

SOR/2000-139 — RULES AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL RULES

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

Mr. Bernier: If members would refer to Mr. Rousseau's letter dated December 11, amendments have been promised to address the problems identified in paragraphs 4, 7, 15, 17 and 18 of the letter. The committee was not satisfied with the previous answers supplied by the department regarding these particular points. As for the confirmation requested regarding point number one, that confirmation has indeed been given.

[English]

At this stage, follow-up on the program and amendments previously promised would be in order.

Hon. Members: Agreed.

SOR/2001-170 — PLACE OF SUPPLY (GST/HST) REGULATIONS

(For text of document, see Appendix D. p. 4D:1)

Mr. Bernier: Mr. Chairman, there is general agreement on the minor drafting questions raised by counsel and ongoing consultations with respect to the use of ``themself.'' A letter should be sent to the department asking for a progress report on these minor corrections.

Hon. Members: Agreed.

SOR/2002-437 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix E, p. 4E:1)

Mr. Bernhardt: As indicated in the covering note, Mr. Chairman, there are nine requested amendments. Two new matters were dealt with. Action has been promised on the second one, which involves removing a discretion to require the second submission of information that has previously been furnished. The Food Inspection Agency has agreed that that discretion is unnecessary.

The other point concerned section 15.1(1)(a)(iv) of the regulations. This provision requires an applicant for a fish export licence to provide, if applicable, a detailed diagram of the establishment to which the application pertains if the applicant does not operate a registered establishment. An explanation as to the purpose of this diagram was sought. Initially, the agency stated that the diagram was meant to assist inspectors in verifying that fish can be processed at the establishment in a sanitary manner and to verify that the establishment is constructed and operated in a manner that prevents contamination of the fish.

This led to some further questions, first, because aside from some certain specific operations fish processing can only take place in registered establishments. What we are dealing with here is applications by people who do not operate registered establishments and, therefore, may not be doing any processing. Why do you need to check on processing in an establishment that does not do processing?

Second, the regulations elsewhere require applicants to demonstrate that they meet the requirements set out in the facilities manual. This would seem to require that persons already demonstrate that they have constructed and operated in a manner that prevents contamination of fish. Again, why is there seemingly a second verification of this? The agency has replied that the diagram provides additional information that is helpful to inspectors.

The final question was this: When will it not be ``applicable'' to furnish the diagram? The agency has given some examples of when this requirement would not be applicable. They have also agreed to clarify this aspect, but they have still not given any real indication of the basis for the applicability test.

At the end of the day, it is still not very clear what the purpose of getting this diagram is. On the other hand, the committee could well decide that there is not much to be gained by trying yet one more time to get clarity on what was basically a subsidiary question in the first place.

The Joint Chairman (Mr. Grewal): Can you explain what the diagram is about?

Mr. Bernhardt: It is a diagram of the establishment of the person applying for an export licence. I guess it would be a floor plan. It sounds like something very general. It simply says a diagram. Presumably, that is something less than a full set of blueprints, although I am not really sure how much detail is required.

As I say, the question was kind of a tag-on at the end. We had asked for an amendment on something else. Since this provision looked somewhat repetitive, perhaps unnecessary, it seemed a bit odd. The question was asked, what do you do with this? We have, as I say, two fairly hazy answers; but on the other hand, it may be that we are not going anywhere with this anyway.

The Joint Chairman (Mr. Grewal): What is your recommendation?

Mr. Bernhardt: In some cases, I suppose it is easiest just to throw one's hands up and walk away, and this may be a situation where that is the case.

Mr. Lee: Mr. Wappel knows all about the fish business.

Mr. Wappel: There are so many regulations with respect to fish, it is scary. I would say that we have done the best we could on this; just carry on, move along.

The Joint Chairman (Mr. Grewal): Should there be any follow-up letter?

Mr. Wappel: I do not think so.

Mr. Bernhardt: We will monitor progress of the promised amendments, but other than that —

The Joint Chairman (Mr. Grewal): Is that acceptable?

Hon. Members: Agreed.

SOR/2003-347 — CANADIAN PAYMENTS ASSOCIATION BY-LAW NO. 6 — COMPLIANCE

SOR/98-238 — BY-LAW NO. 6 RESPECTING COMPLIANCE

(For text of document, see Appendix F, p. 4F:1)

Mr. Bernhardt: SOR/2003-347 replaced SOR/98-238. The earlier one had been the subject of correspondence with the Department of Finance. The new bylaw resolved a number of matters that were in issue. In some instances, however, it gave rise to concerns similar to those raised with the predecessor. Together with some new matters, these were pursued in counsel's letter of November 26, 2003. For the committee's purposes this morning, I suppose that letter can serve as the starting point.

That letter dealt with six issues. Amendments have been promised in connection with point 1. It is suggested that the reply received from the department on point 2 can be taken to be satisfactory. That leaves the other four items, some of which are fairly complicated — for lack of a better word.

Point 3 concerns section 18 of the bylaw, which requires every member subject to an order of the association to comply with the order. The purpose of this provision was queried. The reply confirms that the idea is to impose additional sanctions for non-compliance. In effect, since the act does not provide sanctions for non-compliance with an order, section 18 makes non-compliance a contravention of the bylaw so that it can be penalized as a contravention of the bylaw. The committee has objected to this sort of attempt to indirectly impose penalties in the past in the case of other regulations. It is suggested that the same approach should be followed here.

The issue in point 4 is the imposition of what is termed a penalty for late payment of certain amounts due under the regulations. In effect, the penalty is interest. Interest is charged on amounts that are not paid in time. In the previous version of the bylaw, that is what these were called; it referred to interest payments.

This earlier provision was objected to on the ground that there was no authority in the act to charge interest on overdue amounts. It was submitted that simply changing the name of the charge from ``interest'' to ``penalty'' did not really change what was going on here, and the same objection pertained. The department's reply is that there is a power to impose penalties for non-compliance with the bylaw and that the term ``penalty'' is broad enough to include interest; it cites a number of cases that stand for this proposition.

What is overlooked is the particular language in this case in the statute. The English version of the enabling authority does permit establishing penalties for contravening the bylaw. The term used in the French version, however, is ``amende,'' which means ``fine,'' and that clearly is a narrower term than penalty. One, therefore, has to turn to principles of interpreting bilingual legislation, which dictates that the meaning common to both versions is what governs. In this case, that would be the narrower meaning of the term ``penalty.'' It is suggested, again, that this point should be pursued further with the department.

Turning to point 5, we are dealing here with section 28 of the bylaw. This provision grants immunity from civil liability to the association and its officers. The department seeks to find authority for this in the opening words of section 18(1) of the act, which permits the making of such bylaws as the association's board of directors considers necessary for attaining the objects of the association. It is subjectively worded, and this undoubtedly broadens the scope of the power, but it is still the case that every provision must bear some reasonable relationship to the association's objectives.

I would suggest it is difficult to see the necessary connection between a provision granting immunity from liability to the directors and the establishment and operation of a system for clearing and settling payments. There has also been an attempt to characterize this provision as a term of a contract between the association and its members. This seems a bit farfetched, given that we are dealing here with what is a regulatory provision enacted by the association and imposed by the association. I think it is stretching things to suggest that that somehow constitutes a contract.

The final piece of the puzzle is that Crown immunity is already dealt with in the act expressly. One could well suggest that if Parliament had intended the association to have similar immunity, it would have done that in the act directly as well. These are the three points that would seem to require further correspondence with the department.

The one point that is left is point 6, which deals with some consequential amendments to another regulation that were made at the end of this instrument. It was pointed out that this approach has the potential to lead to losing track of these amendments; they are kind of just stuck on to the end. Indeed, this has happened in the past; for example, in preparing an index of amendments in the consolidated index these things get overlooked.

The department replied that it is authorized to take this approach, which is not really the point. It is simply a practical one of ensuring that we do not lose track of these amendments that are stuck on to another set of amendments. I suppose the question for members this morning is whether they feel that there is a need to seek an assurance from, I suppose, the Privy Council Office that there are procedures in place to ensure that these sorts of consequential amendments are properly tracked.

The Joint Chairman (Mr. Grewal): To seek assurance from the Privy Council Office would be important.

Is there a consensus that we seek the assurance?

Hon. Members: Agreed.

Mr. Lee: I agree. All of the items discussed by counsel are material and I see no reason to walk from this. If we have a file, we should continue to pursue it, as suggested.

Hon. Members: Agreed.

SOR/2001-390 — FORM OF PROXY (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

Mr. Bernier: The requested confirmation has been provided by Ms. Manion, so this will be followed up and the committee will be kept informed of progress.

Hon. Members: Agreed.

SOR/2001-401 — MINORITY INVESTMENT (BANK HOLDING COMPANIES) REGULATIONS

SOR/2001-405 — MINORITY INVESTMENT (INSURANCE HOLDING COMPANIES) REGULATIONS

Mr. Bernier: In this case, the discrepancies between the English and French versions of the definition of ``designated entity'' in both sets of regulations and a drafting error in the English version of section 3 in SOR/ 2001-405 will be corrected when the regulations are next amended. The question is whether this is acceptable to the committee. Subject to what my colleague mentioned earlier, traditionally, the committee has accepted a reasonable period of time, which is considered to be two years, for the next amendment to be made, when the amendments are minor or when they concern matters of drafting.

The Joint Chairman (Mr. Grewal): The English-French drafting error is not significant. Is that correct?

Mr. Bernier: It would not mislead a citizen. The error is minor and it is only a matter of improving the text.

Hon. Members: Agreed.

SOR/2001-480 — SUPERVISORY INFORMATION (BANK HOLDING COMPANIES) REGULATIONS

SOR/2001-484 — SUPERVISORY INFORMATION (INSURANCE HOLDING COMPANIES) REGULATIONS

Mr. Bernhardt: The correspondence relates to what could be termed a point of accuracy in drafting. The Office of the Superintendent of Financial Institutions maintains that the suggested amendment is not necessary. However, they have agreed to make the amendment ``to remove any ambiguity ... the next time these regulations will be opened for amendment.'' No indication is given as to when this would be. At this time, perhaps the committee might wish to ask whether amendments are expected in the foreseeable future. If they are not expected, then the committee could consider whether to seek an undertaking to proceed with this independently.

Hon. Members: Agreed.

SOR/97-159 — ORDER AMENDING THE CANADIAN CULTURAL PROPERTY EXPORT CONTROL LIST

(For text of document, see Appendix G, p. 4G:1)

Mr. Bernhardt: As explained in the note, an amendment to the Cultural Property Export and Import Act to resolve a concern raised in connection with SOR/ 97-159 was made by chapter 34 of the Statutes of Canada 2001. What remains is to effect some consequential amendments to terminology used in the French version. This follows from the making of the amendment to the act. These are to be done together with other promised amendments. The progress of these will be monitored in the usual fashion.

Hon. Members: Agreed.

SI/2001-17 — ORDER FIXING FEBRUARY 5, 2001 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

Mr. Bernhardt: The making of this order on the recommendation of the Minister of Finance was questioned. The department has confirmed in its reply that this is the appropriate minister and so this file can be closed.

Hon. Members: Agreed.

SOR/2001-2 — REGULATIONS AMENDING THE OZONE-DEPLETING SUBSTANCES REGULATIONS, 1998

Mr. Bernhardt: An explanation was sought as to the interaction between several provisions. The department has confirmed that it is intended that a person who contravenes sections 5, 2 or 3 by not re-exporting a substance within six months of importation will be committing a second offence by not destroying that substance as required by section 5(4). This being the case, and that is what the regulation states, there is nothing further to pursue. That file can be closed.

Hon. Members: Agreed.

SOR/2001-55 — SUPERVISORY INFORMATION (TRUST AND LOAN COMPANIES) REGULATIONS

SOR/2001-59 — SUPERVISORY INFORMATION (BANKS) REGULATIONS

Mr. Bernhardt: The Superintendent of Financial Institutions had been asked to explain what was meant by the term ``premium rate,'' which appears in the two regulations. The requested explanation is provided in the reply of October 31, and I would suggest that it be taken as satisfactory. The file is closed.

Hon. Members: Agreed.

SOR/2001-451 — POTATO WART COMPENSATION REGULATIONS

(For text of document, see Appendix H, p. 4H:1)

Mr. Bernier: On points 4 and 5 of Mr. Rousseau's letter from March 9, corrections are promised. Essentially, paragraphs 1 to 3 deal with the same issue. The regulatory provisions referred to therein provide that compensation payments may not exceed ``the direct costs for the cleaning and disinfection'' of equipment in one case or ``the fair market value of the land'' in the other two cases.

Under section 47(q) of the Plant Protection Act, Parliament gave the Governor in Council authority to make regulations prescribing maximum levels of compensation. The question raised by counsel was whether a reference to variable costs, such as the fair market value of the land, constitutes a proper prescription of a maximum level of compensation. The department disagreed with this reading. According to Ms. Stolarik, in providing that full costs of cleaning or disinfection or fair market value are to be recovered or that the compensation payment may equal those costs, the Governor in Council is prescribing a maximum level of compensation. In addition, the department argues that the authority in section 47(q) to make regulations prescribing the terms and conditions of compensation payments, as well as the general authority to make regulations to carry out the purchases and provisions of the act, may be invoked as supporting the provisions in question.

After considerable discussion between the committee's counsel, we suggest that the committee accept this as satisfactory, with a bit of reluctance. The additional arguments made in the September 30 letter from Ms. Stolarik, as well as a consideration of the fact that 47(q) of the act refers to the prescription of maximum levels of compensation rather than to maximum amounts of compensation, are the factors that lead us to make this suggestion.

If members agree with this approach, there would simply remain the monitoring of the making of the two minor drafting corrections that have been promised.

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): The next items fall under action promised.

SOR/98-45—VERIFICATION OF ORIGIN, TARIFF CLASSIFICATION AND VALUE FOR DUTY OF IMPORTED GOODS REGULATIONS (NON-FREE TRADE PARTNERS)

(For text of document, see Appendix I, p. 4I:1)

SOR/2000-100 —FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS REGULATIONS, 1999

SOR/93-194—FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS REGULATIONS, 1992

(For text of document, see Appendix J, p. 4J:1)

SOR/2001-111 -REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990

(For text of document, see Appendix K, p. 4K:1)

SOR/2001-134 —ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2001-1

(For text of document, see Appendix L, p. 4L:1)

SOR/2001-222 —REGULATIONS AMENDING THE PENSION BENEFITS STANDARDS REGULATIONS, 1985

(For text of document, see Appendix M, p. 4M:1)

SOR/2001-276 —REGULATIONS RESPECTING APPLICATIONS FOR PERMITS FOR DISPOSAL AT SEA

(For text of document, see Appendix N, p. 4N:1)

SOR/2001-395 —INVESTMENT LIMITS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

(For text of document, see Appendix O, p. 4O:1)

SOR/2001-396 —INVESTMENT LIMITS (INSURANCE COMPANIES) REGULATIONS

(For text of document, see Appendix P, p. 4P:1)

SOR/2001-397 —INVESTMENT LIMITS (INSURANCE HOLDING COMPANIES) REGULATIONS

(For text of document, see Appendix Q, p. 4Q:1)

SOR/2002-361 —ORDER AMENDING SCHEDULES V AND VI TO THE CONTROLLED DRUGS AND SUBSTANCES ACT

(For text of document, see Appendix R, p. 4R:1)

SOR/2003-221 —REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS

(For text of document, see Appendix S, p. 4S:1)

SOR/2003-293 —ASSESSOR'S RULES OF PROCEDURE

(For text of document, see Appendix T, p. 4T:1)

The Joint Chairman (Mr. Grewal): The next items fall under action taken.

SOR/92-244—IMPORTATION OF PERIODICALS REGULATIONS, AMENDMENT

(For text of document, see Appendix U, p. 4U:1)

SOR/2002-5-``SVANEN'' REMISSION ORDER, 1996

(For text of document, see Appendix V, p. 4V:1)

SOR/2002-338 —REGULATIONS AMENDING THE NOTICES OF UNINSURED DEPOSITS REGULATIONS

(For text of document, see Appendix W, p. 4W:1)

SOR/2002-402 —RULES AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL RULES

(For text of document, see Appendix X, p. 4X:1)

SOR/2002-403 —REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS

(For text of document, see Appendix Y, p. 4Y:1)

SOR/2003-187 — REGULATIONS AMENDING THE INSIDER REPORTS EXEMPTION (BANKS) REGULATIONS

(For text of document, see Appendix Z, p. 4Z:1)

SOR/2003-263 —TECHNICAL AMENDMENTS REGULATIONS (CUSTOMS TARIFF) 2003-1

SOR/98-340—Technical Amendments Order (Customs Tariff) 1998-3

(For text of document, see Appendix AA, p. 4AA:1)

SOR/2003-331- -REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix BB, p. 4BB:1)

SOR/2003-380—REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS

(For text of document, see Appendix CC, p. 4CC:1)

SOR/2003-382 —REGULATIONS AMENDING THE CERTAIN REGULATIONS MADE UNDER THE CANADA POST CORPORATION ACT (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix DD, p. 4DD:1)

SOR/2004-202 —REGULATIONS AMENDING THE MUTUAL COMPANY (LIFE INSURANCE) CONVERSION REGULATIONS

(For text of document, see Appendix EE, p. 4EE:1)

Mr. Bernier: I will deal with all of the items listed under action promised and action taken as a group.

First, with regard to the instruments under action promised, the correspondence includes undertakings to amend or revoke 32 regulatory provisions, including the revocation of two ultra vires sections.

Under action taken, these files represent more than 30 amendments that have been made as a result of the work of the joint committee. I would like to draw attention in particular to the amendment made to section 4 of SOR/ 92-244, the importation of periodicals regulations. As a result of this amendment that was requested by the committee, publishers will now have a right to be heard in any case where importation of a periodical is to be prohibited on the grounds that the Canadian advertising content does not meet the legislative requirements.

Finally, some 87 statutory instruments have been reviewed and are submitted without comment.

Mr. Lee: Excellent work.

The Joint Chairman (Mr. Grewal): We are done.

The next meeting is February 17.

Any further comment?

Mr. Lee: Mr. Chairman, can I just ask if we have something coming down the pipeline on the Part II fees under the Broadcasting Act?

The Joint Chairman (Mr. Grewal): Part II, fees?

Mr. Lee: You know how interested I am in that issue.

Mr. Bernier: Off the top of my head, Mr. Chairman, I know the file but I do not know if we have received a reply. In any case, if it is ready to come to committee, Mr. Lee, I will make sure it is on the agenda for the next meeting.

Mr. Lee: That would be great.

The Joint Chairman (Mr. Grewal): If I recall, we were supposed to get a response in the last Parliament.

Mr. Bernier: We got it, because I know I sent something to Mr. Lee's office.

Mr. Lee: Okay. I just wanted to know.

The Joint Chairman (Mr. Grewal): You will look into that.

Mr. Bernier: If it is ready to come to committee, we will put it on the next agenda.

Mr. Lee: I wanted to note my continuing interest.

The committee adjourned.