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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 13 - Evidence of May 3, 2007

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OTTAWA, Thursday, May 3, 2007

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.

Senator J. Trevor Eyton and Mr. Paul Szabo (Joint Chairmen) in the chair.

[English]

The Joint Chairman (Mr. Szabo): Good morning, colleagues.

We will start off immediately with agenda item number one, letters to and from ministers. Mr. Bernhardt can give us recommendations on each.

SOR/99-144 — ST. LAWRENCE SEAWAY AUTHORITY DIVESTITURE REGULATIONS

SOR/98-230 — PORTIONS OF THE DEPARTMENT OF NATIONAL DEFENCE DIVESTITURE REGULATIONS

SOR/98-231 — PORTIONS OF THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES DIVESTITURE REGULATIONS

SOR/98-232 — REGULATIONS AMENDING THE AIRPORT TRANSFER REGULATIONS

SOR/99-3 — PORTIONS OF THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION DIVESTITURE REGULATIONS

SOR/99-247 — PORTIONS OF THE ROYAL CANADIAN MOUNTED POLICE DIVESTITURE REGULATIONS

SOR/2000-1 — CERTAIN CANADA PORT AUTHORITIES DIVESTITURE REGULATIONS

SOR/2000-60 — PORTIONS OF THE CANADA PORTS CORPORATION DIVESTITURE REGULATIONS

(For text of documents, see Appendix A, p. 13A:1)

Peter Bernhardt, General Counsel to the Committee: These regulations all fall together into a package.

Under the Public Service Superannuation Act, where a portion of the public service is divested, the act continues to apply to any former public servants who become employed by the person or body to whom the divestiture is made. The Governor-in-Council then has the authority to make regulations respecting how the act and the regulations are to apply to these employees.

In each of these regulations, however, the act and the regulations have been extended not only to the person or body to whom the service was transferred, but also to persons acting for them or on their behalf. In fact, this would be subcontractors.

The committee concluded that this was unlawful. This view was confirmed by the Department of Justice, because it refused Treasury Board's request to make a so-called clarifying amendment to the act through the Miscellaneous Statute Law Amendment Program. The ground given by the Department of Justice was that an amendment permitting this kind of regulation would enlarge the scope of the act, and would do more than simply clarify it. In short, the present regulations must be illegal.

In the Chairman's February 22 letter, an indication was sought from the minister as to when remedial amendments to the act would be introduced. In reply, the minister advises he is still exploring an appropriate vehicle to amend the act, as well as possible approaches the amendments might take. It is also suggested that any amendments might be combined with amendments resulting from the Federal Public Service Renewal Initiative. No information is given as to the proposed time frame for any of this.

It has now been about six years since the problem was drawn to the attention of Treasury Board. I wonder if it might be time to advise the minister that unless a firm undertaking to address the matter by introducing appropriate remedial legislation within a specified time can be given, the committee will consider whether to report the matter to the Houses.

The Joint Chairman (Mr. Szabo): Is that agreed?

Hon. Members: Agreed.

SOR/2005-39 — REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS

(For text of documents, see Appendix B, p. 13B:1)

Mr. Bernhardt: Section 3(a) of the Department of Veterans Affairs Act authorizes the Governor-in-Council to make regulations specifying persons or classes of persons who are either veterans or dependents of veterans or survivors of veterans who are entitled to care, treatment or other benefits.

Section 16(1) of these regulations extends eligibility for housekeeping and grounds maintenance services to the primary caregiver of a veteran if the veteran was in receipt of such services prior to the veteran's death or the veteran's admission to a health care facility.

The term ``primary caregiver'' is defined to mean an adult person who immediately before the veteran died or was admitted to the health care facility was primarily responsible without remuneration for ensuring that care was provided to the veteran, and who resided with the veteran or was maintained by the veteran for a continuous period of at least one year.

If the possibility exists that all these primary caregivers will not necessarily be either spouses or dependents of veterans, then this provision is ultra vires to the extent it seeks to specify other persons as being entitled to benefits.

As the note members have before them this morning explains, it seems clear that the effect of these amendments — that is, those made by SOR/2005-39 — is to remove the requirement that there be a relationship of some dependency.

The minister's reply focuses, first, on policy considerations underlying the provisions in question. Of course, this is not relevant for the committee's purposes. Second, it seems to argue that there can be a presumption of dependency in the case of certain persons. This is not the case. The question of whether dependency exists is one of fact to be determined in each particular circumstance. If there will be any instance in which a primary caregiver cannot be said to be a dependent, then the provision is ultra vires to the extent it seeks to apply to that person. This being said, if it is felt that all primary caregivers are somehow dependents, there should be no objection to clarifying this by providing that the dependents who are primary caregivers are eligible to receive benefits. This will only confirm what the minister is saying, that this is the case in any event.

However, if policy considerations lead to the conclusion that persons other than survivors and dependents should be eligible to receive benefits in certain circumstances, then the act must be amended to provide for this. I would suggest that the point be pursued in a further letter to the minister.

The Joint Chairman (Mr. Szabo): Are there questions or comments?

Mr. Dewar: For clarification, we are not challenging the nomenclature of a dependent but rather what it means to be a dependent. Is that correct?

Mr. Bernhardt: That is correct. The act states that you can make a regulation indicating which classes of dependents can receive benefits. In this case, it states that all primary caregivers can receive these benefits. The question is: Will a primary caregiver always be a dependent? If the answer is no, then they have extended the scope of the act, with all best intentions.

Mr. Dewar: I know of cases in my riding and in my family where who is dependent on whom changes at any given time, so we want to be certain that there is clarification of the meaning of the term ``dependent.''

Mr. Bernhardt: If it is considered appropriate to extend it beyond the provision of the act, then the act must be amended.

Mr. Lee: I notice that counsel, in referring to the section 16(3) class, has altered the reference from ``dependents and survivors'' to ``dependents and spouses.'' I am not sure that we should depart from the words used in the statute or in the regulations. The term ``spouse'' would appear to be irrelevant. Would counsel agree?

Mr. Bernhardt: Yes.

Mr. Lee: Let us drop that from the memo. The term we should be using is ``survivor.'' I am being a devil's advocate in asking this question: Is the term ``survivor'' defined in the statute or in the regulations? If it is not defined, then the department may attribute any fair-minded reading to the word ``survivor.'' If that is so, would the meaning not include someone living with and around a veteran? The veteran either goes into an institution or passes away, leaving us with a relatively fuzzy class of survivor person who helped out, maintained, was maintained by, or had a relationship of mutual dependency. Would they not be free to argue that point?

Mr. Bernhardt: ``Survivor'' may be a defined term. I do not have the regulation before me, but I seen to recall the term ``survivor'' defined as ``spouse'' or ``common law partner.''

Mr. Lee: It would include spouse, but do you need a blood line to be a survivor?

Mr. Bernhardt: I think you need a blood or marriage relationship of some permanency.

Mr. Lee: Could counsel confirm that for the committee?

Mr. Bernhardt: Yes.

Mr. Lee: If we have not nailed that down, we might not be on stable ground.

Mr. Bernhardt: As well, we have the second issue of the notion of dependent, where someone is transferred to a care facility. In that case, there is no survivor because there has been no death but you still have to decide who the dependents are.

Mr. Lee: I would ask counsel whether it would be reasonable to read into this that there is a financial dependency as well as a physical care dependency — either caring for someone or being cared for by someone. The veteran could have a pension cheque, other resources and millions of dollars in the bank and still be physically dependent on the other person for help. There are different kinds of dependence moving back and forth.

Mr. Bernhardt: The minister and the department have tried to make that point. In their view, you can be a dependent if you rely on a service or money. When you rely on someone to cut your grass, even though you could cut your own grass, you are in a relationship of dependency.

Mr. Lee: A veteran might rely on someone to pick up his or her mail at the post office each day — the person, who lives in the same house, would take the mail home to the veteran — mow the lawn, wash the dishes and do the grocery shopping, but the veteran pays for the food and for the roof over their heads. Counsel seems to question in his memo the possibility that that kind of dependence could be construed as dependence. However, there is a mutual dependency of many kinds in such a case, and the minister was trying to recognize that.

Mr. Bernhardt: Yes. The bottom line is that there still has to be a dependency of some sort. The department is saying that we can presume that that will always be the case, which the committee deemed taking it too far. If you wish to say ``primary caregivers who are dependent,'' it would not be a problem. The question is whether there will always be a dependency simply because there is a primary caregiver, and I am not sure that that will always be the case. It might be so in the majority of varying circumstances, but there still must be a connection. Simply by virtue of being a primary caregiver, you cannot assume that you are a dependent.

Mr. Del Mastro: To Mr. Lee's point, it is likely inherent that someone receiving care from a caregiver is dependent upon the caregiver for that care or they would not have a caregiver. I do not know that it is necessary to define that.

Mr. Bernhardt: The question is whether it works the other way around.

Mr. Del Mastro: I understand that.

Mr. Bernhardt: The issue is whether the person will always be dependent.

Mr. Del Mastro: That is likely inherent, and I do not know that we need to define it. I cannot imagine anyone with a caregiver not depending on the caregiver for something, or they would not have a caregiver.

Mr. Bernhardt: We are dealing with the reverse situation.

Mr. Del Mastro: I understand that, but it seems that we are trying to define it the other way as well, and I am not sure that we need to do so.

Mr. Bernhardt: You are right. The committee has established that it does not need to be concerned with the fact that a veteran is receiving some benefit payment to have a caregiver.

The Joint Chairman (Mr. Szabo): In light of that discussion, do members want to reconsider the approach of the committee? Perhaps counsel could restate the recommended action at this time.

Mr. Bernhardt: The recommendation is to write to the minister to suggest either that the act be amended to specifically provide for continuation of payments of benefits to caregivers or that the regulations be amended to state that benefits can be continued to primary caregivers who are dependents.

Mr. Lee: That would include survivors.

Mr. Bernhardt: Yes. I do not think there is a problem if you are a survivor.

Mr. Lee: ``Survivor'' has to be defined. It would be helpful to them if it is not defined.

Mr. Bernhardt: Yes. I recall that it is defined, but I will confirm that for the committee.

The Joint Chairman (Mr. Szabo): Are we coming close to making all the law through regulations? This is a fulsome regulation.

Mr. Bernhardt: The act gives the authority to define those classes of people who can continue to receive benefits and it also states that one has to be a survivor or a dependent to be in the regulations.

The Joint Chairman (Mr. Szabo): I am not sure that we can do an amendment to either the bill or the regulation. I believe that it might require a bit of both.

Mr. Bernhardt: It could be possible to say that it applies to primary caregivers who are dependents, in which case everyone would be included, thereby leaving it to the bureaucrats to decide who a dependent is.

The Joint Chairman (Mr. Szabo): It sounds like we will not be able to resolve it in terms of the specifics. However, the recommendation is to write a letter to communicate the points that were raised and to seek feedback from the minister on openness to either course of action.

Mr. Lee: Mr. Chairman, in going through this exercise, in the lead-up to the letter, could counsel try to nail both doors shut — the first door being definition of the survivor class and the second door being definition of the dependent class — to ensure that any fair-minded interpretation of either, with the benefit of the doubt going to the veteran and his household, is incorporated in our next letter?

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Thank you. I should say right now, if we have time, I am hoping to move into a brief in-camera session at the end of this meeting for a discussion about a proposed trip, a comparative study on practice and procedures with regard to scrutiny of regulations in Australia. I just want to give members a heads up that we would like to do that before we adjourn.

[Translation]

SOR/92-12 — EGG REGULATIONS, AMENDMENT

(For text of document, see Appendix C, p. 13C:1)

Mr. Jacques Rousseau (Legal Counsel): Two points were raised in the correspondence on this instrument. As the note prepared for the committee shows, an amendment was made in order to correct the problem raised in connection with section 6.2 of the regulations.

As for sections 9(28) and 9(29) of the regulations, sections that the committee held were invalid, it seems possible to remedy this situation by means of the regulatory powers currently held by the governor in council. The note sets out the proposal that could be presented to the department if the committee finds it acceptable.

I will briefly summarize the proposal. Sections 9(28) and 9(29) of the regulations, which are provided in the note, describe the requirements for the transportation of eggs. These sections deal with the way eggs are conveyed to or from a registered egg station. The problem is that these requirements apply to the transportation of eggs within provinces.

The department writes that sections are made pursuant to section 32(c) of the Canada Agricultural Products Act, the text of which is also provided in the note. The department sees the regulations as rules governing the operation of a registered egg station. According to the department, the regulations can therefore be adopted pursuant to section 32(c) of the act.

This view seems acceptable. The requirements of the regulations can be written in such a way that they apply only to the operators of egg stations, but the present wording is too broad. As currently worded, the regulations also apply to the individual doing the transporting. So a producer taking eggs to a station himself must comply with the regulations. But this has nothing to do with the operation of the egg station.

One possible solution to recommend to the department would be to amend the regulations so that they apply only to the operator of the registered egg station. This could be achieved by specifying that the operator shall not receive eggs at his station or convey eggs from the station unless the vehicle used complies with the regulatory requirements. If the regulations are not followed, only the operator of the station will have contravened them. Once again, the text of the proposal is in the note.

If the department agreed to amend these two provisions as indicated, the intent of the regulations would not be compromised in any way. The committee could consider that the provisions as amended are authorized by the Canada Agricultural Products Act.

If the committee is in agreement, legal counsel will write to the department to propose this solution.

[English]

The Joint Chairman (Mr. Szabo): Are there any questions or comments? Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Thank you. That is an excellent outcome.

SOR/95-571 — ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS, AMENDMENT

SOR/98-531 — REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS

(For text of documents, see Appendix D, p. 13D:1)

Mr. Bernhardt: Beginning first with SOR/98-531, amendments to remove three discrepancies between the English and French versions of the regulations were first promised in 2001; the committee was told at that time that drafting of the amendments had begun.

In October of 2003, the RCMP advised that the amendments would be made in 2004. In June of 2005, however, the RCMP reported that the amendments in question had been dropped from the package, following advice from the Department of Justice that their inclusion would slow down the process. It was also stated that it may be a number of years before these amendments are made.

This advice was questioned in view of the progress reports that had been furnished prior to 2005. In reply, the RCMP has reiterated that, although it still intends to make the promised amendments, they are constrained by limited resources and other priorities and that action will not be taken any time in the near future.

Turning to the other file, SOR/95-571, three points were raised in 1997. The committee was advised that amendments were to be undertaken to make the suggested changes. Since then, numerous requests for progress reports have been responded to. Although there have been a number of delays, the committee has always been led to believe its concerns would be addressed.

In its May 23, 2006, letter, however, the RCMP states that it does not intend to proceed with any of the three amendments in question.

On the first of these, it was suggested that the reference in section 9.1(6), to recovering amounts paid in error from any further benefits, broadened the scope of the act, which only contemplates recovery of these amounts from payments of the particular annuity. The RCMP now claims there is no need to amend since no other benefit other than the particular annuity would be available anyway. Even so, the wording used in the regulation should correspond to that used in the act, if only to avoid confusion.

Similarly, the other two points concern the need to use terminology in the regulations that reflects the wording in the act itself. In essence, the RCMP's position is that it all comes to the same thing. If so, there should be no objection to adopting uniform wording.

I would suggest the RCMP has given no legitimate reasons for reneging on its undertakings, or for putting off taking promised action indefinitely. Perhaps the commissioner should be asked directly for her cooperation in ensuring that these amendments proceed without further delays or evasion.

Senator Moore: A letter to the commissioner?

The Joint Chairman (Mr. Szabo): Questions or comments?

Mr. Lee: In reading through the correspondence, I could not help but detect a certain officious, almost military absence of candour. In other words, here is the bottom line, take it or leave it. If it varies from our previous bottom line, that is just the way it is. Go away, corporal, and do your job.

I was disappointed in that. Clearly, there has been some failure on the part of the RCMP — not the whole RCMP, but the branch that administers this particular superannuation — to do any kind of heavy lifting at all; their response has been pretty pro forma.

I think we should tighten up the linkages here. I am assuming none of these difficulties with the regulations is so egregious as to impair the rights of the beneficiaries or the citizens generally, in that we are talking about technical things. In any event, I think we still need to know that this institution is accountable and amenable, and doing the right thing in law. I am not sure how to tighten those linkages. Over this period of time, the RCMP has proven to be an interesting case study. Counsel and the joint chairs should prepare a letter that does what counsel has described but firms a little in terms of our parliamentary public interest relationship. If the committee does not receive a reasonable response, they could be invited to appear as witnesses before the committee.

Mr. Norlock: I share the view of Mr. Lee.

Mr. Dewar: Their previous correspondence would indicate that they do not have the resources to do this job. It is fine to write again to ask for clarification, but if the issue involves person power, then it is not our role.

The May 2006 correspondence suggests that they would like to do this but do not have the resources, which puts the committee in a predicament because we cannot instruct them to deploy the resources. They said they do not have the resources to do it — which creates a bit of a conundrum. What can the committee say, other than, ``Get it done; we have been waiting''?

Mr. Norlock: In my experience working with a police force, albeit smaller, I often found that the administration's answer to questions was that they do not have enough people. Quite frankly, that usually does not hold water. In this case, it is a convenient excuse and does not hold much water because of the length of time and the reasonable requests that have been made of them. We should not regard that as a legitimate reason. I agree with Mr. Lee that we need to let them know precisely the thoughts of the committee on the issue.

The Joint Chairman (Mr. Szabo): Are members agreed?

Hon. Members: Agreed.

Mr. Lee: If they have a chief linguistic advisor, they must have some resources.

The Joint Chairman (Senator Eyton): It is noteworthy that the RCMP pension plan mentioned in the correspondence is currently under some fire. I agree with Mr. Lee that the context of the letter not only should be firm but almost tough in its approach.

Mr. Cannan: Is there a time line for a response?

The Joint Chairman (Mr. Szabo): That is why we should have a comparative study on practices and procedures. It is the right question to ask but it might be the wrong environment to make that happen. We need to do some work on that.

Mr. Bernhardt: The routine bring-forward time for any correspondence is four months. That is subject to the committee deciding otherwise as a matter of policy or on a case-by-case basis. If a reply is not received by that time, a follow-up letter is sent to ask where the reply is.

The Joint Chairman (Mr. Szabo): Under the circumstances, we could say that the committee looks forward to a reply in the very near future. The time element is probably worth keeping on the table.

[Translation]

SOR/93-4 — DANGEROUS CHEMICALS AND NOXIOUS LIQUID SUBSTANCES REGULATIONS

(For text of document, see Appendix E, p. 13E:1)

Mr. Rousseau: As the committee was informed at its meeting of November 27, 2006, all the promised amendments to the regulations were approved, and published as SOR/2005-285, as mentioned in the October 5, 2005 letter from the department.

In addition, the department promised to take steps to amend the act as a result of the committee's comments about the lack of enabling legislation for certain provisions in the regulations. This too has been done.

In its letter of May 10, 2006, the department identified the provisions of the Canada Shipping Act, 2001 that provide the required authority. It also indicates that these new enabling provisions are to come into force once the new regulations needed to finalize the act have been drafted.

The department anticipated that the sections of the act would come into force at the beginning of 2007. A check shows that this has not yet happened. If the committee is in agreement, counsel could write to the department to enquire where matters stand.

[English]

The Joint Chairman (Mr. Szabo): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2003-174 — CANADIAN PAYMENTS ASSOCIATION BY-LAW No. 1 — GENERAL

(For text of document, see Appendix F, p. 13F:1)

Mr. Rousseau: The 14 points raised in this matter deal with the way in which the regulations are drafted, with the exception of point 13, where committee counsel expressed the opinion that the relevant sections seemed to be broader in scope than the act permits. Amendments have been promised for points 2, 5, 10, 12, 13 and 14. Satisfactory explanations have been provided to the questions asked on points 1, 8 and 11.

The department also satisfactorily explains the reasons why amendments to the regulations are not necessary for points 3, 4, 6 and 9.

Finally, for point 7, counsel's suggestion was to remove a passage in section 42(3) of the regulations that seems to be superfluous. The department's response explains why it wishes to retain the passage, and the decision is, after all, the department's.

If the committee is in agreement, counsel will monitor the progress of the promised amendments in the usual manner and will keep the committee informed of developments.

[English]

The Joint Chairman (Mr. Szabo): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2003-363 — ANTARCTIC ENVIRONMENTAL PROTECTION REGULATIONS

(For text of document, see Appendix G, p. 13G:1)

Mr. Rousseau: Ten points were raised by committee counsel in the letter of 21 March, 2006. In its response of November 6, 2006, the department promised amendments to points 1, 3, 7, 9 and 10. I should emphasize that, in points 1 and 10, the amendments promised are to the Antarctic Environmental Protection Act. Their effect will be to harmonize the French and English versions and to clarify the act.

Committee counsel is of the opinion that satisfactory responses have been received for points 4, 5 and 8. Points 5 and 8 deal with the drafting of the regulations. On point 4, counsel pointed out that Parliament had given the minister the power to grant permits allowing dogs to be introduced to the Antarctic and so the ban on such permits in section 20 of the regulations goes against the intent of the act. The department's response shows that Parliament put the authority to impose this ban into section 26.1(2).

Finally, counsel feels that the department's response to points 2 and 6 is unsatisfactory. Point 2 deals with a drafting matter in the French version of the regulations. The point raised was not clearly understood by the department, whose response assumed that the problem was that the French and English versions of the regulations were different. We will have to express our comment in another way.

In point 6, the question is whether the governor in council has the authority to impose by regulation conditions that would have to be written into permits issued by the minister.

In subsection 21(4) of the act, Parliament gives the minister the discretionary authority, subject to the regulations, to include in a permit any condition he or she considers appropriate.

Paragraph 26.1(c) of the act deals with the governor in council's regulatory power. Parliament provides the authority to make regulations respecting, and I quote:

. . . the conditions that the minister may include in a permit.

So it is clear that paragraph 26.1(c) does not allow the governor in council to dictate to the minister that certain conditions must be included in a permit.

The use of the word ``may'' in paragraph 26.1(c) of the act is perfectly clear in this regard.

The department's response does not take into account this provision of the act. The department writes that section 29 of the regulations is necessary to implement the Madrid Protocol on Environmental Protection to the Antarctic Treaty. This statement may be in doubt.

In fact, the minister is perfectly capable of issuing permits that implement the protocol without being required to by regulations made by the governor in council. However, even if we accept that section 29 of the regulations is necessary, it is clear that the authority given by Parliament to the governor in council in paragraph 26.1(c) of the act does not allow section 29 of the regulations to be adopted. The department suggests that the enabling regulatory power is found in paragraphs 26.1(d) and (k) of the act. These two legislative provisions are by nature much more general and do not specifically deal with the regulatory power held by the governor in council over the conditions in permits.

So we have grounds to conclude that paragraph 26.1(c) of the act expresses the will of Parliament on the matter and that the department's response is unsatisfactory.

If the committee is in agreement, counsel can write to the department once more to ask for points 2 and 6 to be examined again.

[English]

The Joint Chairman (Mr. Szabo): Are there any questions or comments? Is it agreed? Mr. Lee has something on his mind.

Mr. Lee: I was just noting that this might be the first and only time that we might be reviewing delegated legislation that governs a part of the world on the other side of the world, Antarctica — it is not our own Arctic.

Clearly, there is an international treaty jurisdiction, but everything we are looking at here deals with the ice sheet in Antarctica, where most Canadians have never set foot. It is interesting how international law has evolved. That is why I wanted to make the comment.

The Joint Chairman (Mr. Szabo): That is a good point. Are we agreed on SOR/2003-363?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): We will advance this file as much as we can.

[Translation]

SOR/2005-23 — REPORTING OF EXPORTED GOODS REGULATIONS

(For text of document, see Appendix H, p. 13H:1)

Two points were raised in this instrument. On the second point mentioned in the letter sent by counsel on September 20, 2005, a drafting change has been promised.

In its letter of June 15, 2006, the agency provided, as requested, an example of the application of section 5(1) of the regulations showing under which conditions the export of prohibited goods could comply with federal legislation. The example provided was of a firearm for which an export permit is needed. Export is prohibited unless a permit is obtained. By obtaining the permit, the exporter is able to demonstrate that the export complies with federal legislation.

If the committee is satisfied, counsel will monitor the progress of the promised amendment in the usual manner and will keep the committee informed of progress.

[English]

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

Hon. Members: Agreed.

SOR/2006-78 — REGION OF WATERLOO INTERNATIONAL AIRPORT ZONING REGULATIONS

(For text of documents, see Appendix I, p. 13I:1)

Mr. Bernhardt: A question was raised concerning the method of calculating the elevation of the landing strip surface centreline. An explanation has been provided that seems to make sense, although I will confess that I am by no means a surveyor.

A correction has been promised to remove an error in item two of part 4 of the schedule as well, and a progress report on this amendment should be sought.

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

Hon. Members: Agreed.

SOR/97-109 — PCB WASTE EXPORT REGULATIONS, 1996

(For text of documents, see Appendix J, p. 13J:1)

Mr. Bernhardt: Several amendments to address points of drafting and inconsistencies between the two versions of these regulations have been promised.

In the case of the matters raised in the final paragraph of point 2 and point 4 of counsel's March 1, 2005, letter, the undertaking from the department is simply to consider the comments made. We are dealing here with sections 10(q) and 12(3) of the regulations.

In the department's letter of November 6, 2006, it is indicated that it is expected the promised amendments will be made by 2010.

The questions this morning are, first, whether this timetable is acceptable and, second, whether the undertaking to consider two of the points raised is satisfactory.

Given that the amendments in question are relatively minor, the committee could advise the department that it will await the next round of amendments, but that if they are to be deferred beyond 2010, it expects those involving these particular matters to proceed independently. The department could also be asked whether taking concerns into consideration means they will actually be addressed.

Mr. Cannan: I am still concerned about 2010. Do they want an Olympic medal?

Mr. Bernhardt: That is the question for members this morning. On one hand, that is a considerable time in the future. On the other hand, the amendments are relatively minor. On that sort of thing, we are very much in the hands of the committee on whether it wishes to say ``yea'' or ``nay'' to that.

Senator Moore: If it is relatively minor, why do not we seek a quicker resolution? Why not have it done within 12 months? Why not clean them up? Why wait for three years?

Mr. Bernhardt: I think their reason for waiting is they have a timetable to do a bunch of other things and they would like to roll it into that. That does not preclude the committee from asking to have its amendments dealt with independently.

The Joint Chairman (Mr. Szabo): I think sufficient concern has been expressed about the timeline here. We should probably write back, make the suggestion and let them explain why 2010 is a better fit for all of the good things, if that is the case.

The Joint Chairman (Senator Eyton): Should we not also look for a stronger action than to consider? I find that more offensive than the timeline.

Mr. Bernhardt: We can ask for a confirmation that these will be addressed.

The Joint Chairman (Mr. Szabo): Is that agreed?

Hon. Members: Agreed.

SOR/2000-141 — COMMISSIONER'S STANDING ORDERS (DISPUTE RESOLUTION PROCESS FOR PROMOTIONS AND JOB REQUIREMENTS)

(For text of documents, see Appendix K, p. 13K:1)

Mr. Bernhardt: A minor amendment to these standing orders was agreed to in 2002. Action has been postponed more than once.

Last June, the joint chairmen wrote to the commissioner of the RCMP asking that the amendment proceed without further delay, and regardless of whether other revisions were being contemplated. In his reply, the commissioner advised that a proposed revision of these orders had been abandoned but that the amendment to resolve the committee's particular concern would go forward immediately. The amendment has yet to be made, however, so I suppose a further letter asking as to progress is in order.

The Joint Chairman (Mr. Szabo): Is that agreed?

Hon. Members: Agreed.

[Translation]

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

(For text of document, see Appendix L, p. 13L:1)

This matter deals with section 4(7) of the regulations requiring designated people to keep a copy of the manifest that accompanies an interprovincial shipment of hazardous waste.

The department feels that the regulatory power that allows the requirement that documents are to be kept is found in section 191 of the Canadian Environmental Protection Act which allows the governor in council to make regulations generally for carrying out the purposes and provisions of this division, including sections 185 to 192 of the act.

The department also feels that the holder of a regulatory power can require the keeping and retaining of records without the act from which the power is derived expressly providing for such a power, as long as this obligation arises from the act's general objectives and is necessary to its application. At its meeting of June 16, 2005, the committee rejected this response.

In its letter of March 10, 2006, the department merely reiterates its position. And in their letter of May 23, 2006, committee counsel point out that the committee is of the view that a provision such as section 4(7) of the regulations must be clearly authorized by Parliament. The letter sets out in detail the reasons why the committee believes that such is not the case here.

In the August 15, 2006 letter, the department does not respond to counsel's arguments. However, the letter indicates that the department is currently reviewing the regulations that will be replaced by new regulations to be implemented by the fall of 2007 and that will, and I quote: ``respond to your concerns.''

If this means that the new regulations will not have provisions requiring documents to be kept, the response can be considered satisfactory.

Committee counsel recommends seeking confirmation that this in fact what the letter of August 15, 2006 really means. At the same time, counsel could ask for confirmation that the new regulations will be in place by the fall of 2007 as anticipated.

[English]

Mr. Lee: Now that Environment Canada has pulled the rug out from under all of these issues, they have said they will adopt new regulations. If that seems clear and firm enough, members can accept counsel's advice on that.

[Translation]

Mr. Rousseau: The letter that we are going to write to the department will ask for confirmation that their course of action will indeed correct the problem we have pointed out. We are looking to find out exactly what kind of amendment the department is talking about here.

Mr. Lee: Right.

[English]

The Joint Chairman (Mr. Szabo): Are members agreed?

Hon. Members: Agreed.

Mr. Bernhardt: Mr. Chairman, I propose following the usual practice of the joint committee to take the items under Action Promised as a group, Action Taken as a group and Statutory Instruments Without Comment as a group.

SOR/99-467 — CANADA TRAVELLING EXHIBITIONS INDEMNIFICATION REGULATIONS

(For text of documents, see Appendix M, p. 13M:1)

SOR/2003-29 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

(For text of documents, see Appendix N, p. 13N:1)

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

(For text of documents, see Appendix O, p. 13O:1)

SOR/2005-42 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (EXPIRATION DATE FOR CERTAIN TECHNICAL STANDARDS DOCUMENTS)

(For text of documents, see Appendix P, p. 13P:1)

SOR/2005-405 — REGULATIONS AMENDING THE BOATING RESTRICTION REGULATIONS

(For text of documents, see Appendix Q, p. 13Q:1)

Mr. Bernhardt: We have nine amendments promised concerning the instruments under Action Promised. I highlight that amendments have been promised to the Canadian Payments Act to authorize regulations requiring members subject to an order of the Canadian Payments Association to comply with the order, imposing penalties for late payments, and granting immunity from civil liability to the association and its officers. In each case, provisions to this effect are in the regulations, although the committee has concluded that they lack authority. Once the act is amended, these provisions will have to be re-enacted under the new enabling authority. Members will recall that the issue of indirectly imposing penalties for the contravention of orders and other such non-legislative matters has been a matter of special interest to the committee.

SOR/94-716 — COMMERCIAL VEHICLE DRIVERS HOURS OF SERVICE REGULATIONS, 1994

(For text of documents, see Appendix R, p. 13R:1)

SOR/2003-115 — REGULATIONS RESPECTING EXCISE LICENCES AND REGISTRATIONS

SOR/2005-355 — REGULATIONS AMENDING THE REGULATIONS RESPECTING EXCISE LICENCES AND REGISTRATIONS

(For text of documents, see Appendix S, p. 13S:1)

SOR/2006-11 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

(For text of documents, see Appendix T, p. 13T:1)

SOR/2006-74 — REGULATIONS AMENDING THE CHARGES FOR SERVICES PROVIDED BY THE OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS REGULATIONS 2002

(For text of documents, see Appendix U, p. 13U:1)

Mr. Bernhardt: Under Action Taken are instruments resolving 23 concerns raised by the committee. In particular, the replacement of the Commercial Vehicle Drivers Hours of Service Regulations with new regulations results in the removal of provisions giving the power to seize documents without a search warrant and allowing entry into a motor carrier's place of business other than during normal working hours.

SOR/2005-375 — REGULATIONS ESTABLISHING PERIODS OF PROBATION AND PERIODS OF NOTICE OF TERMINATION OF EMPLOYMENT DURING PROBATION

SOR/2005-376 — DEFINITION OF PROMOTION REGULATIONS

SOR/2005-377 — REGULATIONS PROHIBITING DEPLOYMENTS INTO THE EXECUTIVE GROUP

SOR/2005-378 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-13

SOR/2005-381 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996

SOR/2005-384 — REGULATIONS AMENDING THE IMPORTED GOODS RECORDS REGULATIONS

SOR/2005-386 — REGULATIONS AMENDING THE REFUND OF DUTIES REGULATIONS

SOR/2005-388 — REGULATIONS AMENDING THE RETURNING PERSONS EXEMPTION REGULATIONS

SOR/2005-389 — REGULATIONS AMENDING THE TRANSPORTATION OF GOODS REGULATIONS

SOR/2005-390 — REGULATIONS AMENDING THE SHIPS' STORES REGULATIONS

SOR/2005-391 — REGULATIONS AMENDING THE FEDERAL BOOK REBATE (GST/HST) REGULATIONS

SOR/2005-392 — STAINLESS STEEL ROUND WIRE PRODUCTS ANTI-DUMPING DUTY REMISSION ORDER

SOR/2005-393 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (INSURERS)

SOR/2005-394 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1225 — FOOD ADDITIVES)

SOR/2005-395 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1063 — CARRAGEENAN IN INFANT FORMULA)

SOR/2005-396 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1346 — MAXIMUM RESIDUE LIMITS FOR VETERINARY DRUGS)

SOR/2005-397 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1436 — 1- METHYLCYCLOPROPENE)

SOR/2005-398 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1419 — GLUFOSINATE-AMMONIUM)

SOR/2005-399 — HEALTH INFORMATION CUSTODIANS IN THE PROVINCE OF ONTARIO EXEMPTION ORDER

SOR/2005-400 — GUIDELINES AMENDING THE FEDERAL CHILD SUPPORT GUIDELINES

SOR/2005-402 — ORDER AMENDING SCHEDULE I TO THE YUKON SURFACE RIGHTS BOARD ACT

SOR/2005-403 — ORDER AMENDING SCHEDULE II TO THE YUKON FIRST NATIONS SELF- GOVERNMENT ACT

SOR/2005-404 — CONDITIONS OF CARRIAGE REGULATIONS

SOR/2005-408 — REGULATIONS AMENDING THE ELECTRONIC ALTERNATIVES REGULATIONS FOR THE PURPOSE OF THE FEDERAL REAL PROPERTY AND FEDERAL IMMOVABLES ACT (MISCELLANEOUS PROGRAM)

SOR/2005-409 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-14

SOR/2005-410 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

SOR/2005-411 — ORDER 2005-66-10-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2005-412 — ORDER 2005-87-10-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2005-414 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CAPITAL COST ALLOWANCE — INTRODUCTION OF CLASSES 45 AND 46)

SOR/2005-416 — REGULATIONS AMENDING THE PUBLIC SECTOR PENSION INVESTMENT BOARD REGULATIONS

SOR/2005-417 — REGULATIONS AMENDING THE PUBLIC SERVICE LABOUR RELATIONS BOARD REGULATIONS

Mr. Bernhardt: Under Statutory Instruments Without Comment, 31 amendments have been reviewed and found to conform to all of the committee's criteria. I would remind members of the joint committee that, although we do not provide copies of those instruments in the materials, a copy is brought to all meetings should members have questions or comments.

The Joint Chairman (Mr. Szabo): Are there items for comment or question? Seeing none, I thank counsel.

Are members agreed that the committee go in camera?

Hon. Members: Agreed.

The committee continued in camera.

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