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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 3 - Evidence of September 28, 2006

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OTTAWA, Thursday, September 28, 2006

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:39 a.m. to elect the Joint Chairman (House of Commons) and Vice-Chairman; and for the review of statutory instruments.

Senator J. Trevor Eyton (Joint Chairman) in the chair.

[English]

Senator Eyton: We have a full agenda. I am told there is a formality we need to attend to, so let us proceed.

Mike MacPherson, Joint Clerk of the Committee: We will proceed to the election of chairman and the vice-chairmen for the House of Commons side of this committee. I am prepared to receive motions to that effect.

Mr. Epp: I move that we select Paul Szabo as our chairman.

Mr. MacPherson: It has been moved by Ken Epp that Paul Szabo be elected as chairman of the committee.

Mr. Lee: I close nominations.

Mr. MacPherson: Fair enough; are there any further nominations?

Is it the pleasure of the committee to adopt the motion?

Hon. Senators: Agreed.

Mr. MacPherson: I declare the motion carried and Paul Szabo duly elected chairman of the committee.

Mr. Wallace: I move that Ken Epp be elected vice-chairman.

Mr. MacPherson: It has been moved by Mike Wallace that Ken Epp be named vice-chairman of this committee. Are there any other nominations? I declare Ken Epp the first vice-chairman.

Are there any nominations for second vice-chairman?

The Joint Chairman (Mr. Szabo): I nominate Mr. Paul Dewar.

Mr. MacPherson: I have one motion for Mr. Dewar to be second vice-chair. Do I have any other motions? Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

Mr. MacPherson: I declare the motion carried and Paul Dewar as the second vice-chairman of the committee. I pass it over to the chair.

The Joint Chairman (Mr. Szabo): We will go through the items in our usual way. If you have had an opportunity to read this voluminous documentation, one pattern you will see is that correspondence goes back to 2002 and 2003, and letters responding to those letters are a year and a half after the fact. There have been no developments for a year. I found it concerning that velocity is not a word you would use in connection with activity in this committee. As we go through these items and it is reaffirmed that we seem to have this problem, we may want to have a conversation about how to encourage prompt attention to matters we raise.

We do not raise insignificant issues. Issues relate to amendments to regulations, or in some cases more serious issues, such as the levying of taxes or whether a CRTC fee is a tax or a fee. These issues are important.

We are relatively a new group. I think that the committee is always master of the way it does its own business and we should look for opportunities. We will consult with Mr. Bernhardt as to the latitude we have or the ballpark we can deal with, but I think that all stakeholders involved with this committee, whether they are parliamentarians, departmental people or the public at large, will be better served if our activity is handled in a tighter time frame.

SOR/97-144 — BROADCASTING LICENSE FEE REGULATIONS, 1997

Peter Bernhardt, General Counsel to the Committee: In an earlier report, Report No. 73, the committee observed that certain fees imposed under the Broadcasting Licence Fee Regulations, 1997, appeared to possess many of the characteristics of a tax. Since then, these fees have been challenged in Federal Court. It has been held, in a preliminary proceeding, that if the fees in question are indeed taxes, they are not authorized by the Broadcasting Act. The main issue in the case, which is whether the fees are indeed taxes or not, has yet to be decided.

When the committee considered this file at the last meeting before the summer, the committee decided it would be desirable to report again to the Houses, simply for the purpose of updating them with respect to the developments that had taken place. Members have that draft report before them this morning.

The Joint Chairman (Mr. Szabo): Are there any comments or questions with regard to the draft report?

Mr. Lee: I want to ask counsel, to refresh our memory, did this committee finally conclude that in our view, these fees are taxes, and was that conclusion articulated in our earlier report?

Mr. Bernhardt: I think the committee said in that earlier report that the fees seemed to have many characteristics of a tax, which could potentially leave them open to a challenge in court. In fact, that is exactly what happened.

Mr. Lee: I am trying to describe what we have done. We have taken the soft route. Rather than making a conclusion, we invited the courts to do it. It might be more mature to make a decision, assuming we have confidence in our view. At this time, we are monitoring progress, having failed to crystallize an actual position. Is that correct?

Mr. Bernhardt: Yes: When the committee took an initial look at this, which led to the first report, the committee was of the view that there was some difficulty with coming down hard and fast one way or the other. On the one hand, the fees were leading to the collection of a great surplus but, on the other hand, the enabling authority for those fees expressly said that the fee could be calculated as a percentage of the revenues of the broadcasters. This seemed to go some ways toward describing a tax, even though it was not called a ``tax'' but a ``fee.'' It was something of a novel situation and the committee seemed reluctant to come down hard and fast. Clearly, concerns were expressed and it was likely that some issues would be raised in the future, so the committee wanted to flag those issues. In fact, that is what happened because the issue is squarely before the Federal Court.

The Federal Court said that if these fees are taxes, then they are unlawful. What it has not said yet is whether they are taxes, and we are waiting to hear. From the committee's point of view, the court challenge goes some distance to reinforcing the committee's position because we know that this fee must not be a tax, which is part of the committee's concern.

I am not sure whether any action at this time by the committee would have an effect on whether these proceedings eventually wend their way through the court system. My suspicion is that the decision will be appealed one way or another, regardless.

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

Mr. Cannan: I have one question for clarification. Do you have any idea when you will hear back from the courts?

Mr. Bernhardt: The court process can be a long and winding road. I looked at the Federal Court website this week and things seem to be moving along. There have been a number of preliminary motions and proceedings and, I believe, a pretrial conference was scheduled.

Mr. Cannan: Is it moving along at the velocity of this committee?

Mr. Bernhardt: In some cases, the committee is a little faster than the courts. In other cases, it is the other way around.

Mr. Epp: My question is: Who takes precedence? When a matter is before the Federal Court, normally ministers cannot interfere with that action, we are told. If this issue is before the courts, are we obligated to wait until the court process finishes before we act?

Mr. Bernhardt: I do not think anything could prevent the committee from putting its position forward regardless of what happens in the courts. From the other side, the response likely to come from government would be precisely that — the matter is before the courts. The government will choose to make its position known in that venue.

The Joint Chairman (Mr. Szabo): I note that the court has already ruled that section 11 does not authorize the imposition of a tax; so that is dealt with. There is precedent that the power to prescribe a fee does not include the power to impose a tax. The only question remaining is: Is the ``fee'' a tax?

Mr. Epp: Yes.

The Joint Chairman (Mr. Szabo): There is a subtlety here. The question has been raised by those who pay the fees, and they are well aware of the issue. Perhaps we should proceed with a report, as an update, and we will watch this one. To the extent that the ``fee'' is deemed to be a tax in excess of what a fee should have been or would have been more reasonable, questions will arise as to whether there is a major liability to refund retroactively.

Mr. Lee: I suggest that the committee has an opportunity to clarify where it stands, which might assist the courts indirectly, and the parties to the litigation, to note that a committee of Parliament, which originally authorized the fees, takes a certain view as to whether this is a fee or a tax. Completely aside from disallowance procedures, that might be helpful.

I am sure we did everything but reach a conclusion on whether it was a fee or a tax in the previous work of the committee. Do we have consensus to reach a conclusion, before we report to both Houses, that it is or is not a tax? If we report that in the view of the committee it is not a tax, then that might steer the litigation one way and if we report the other way, it could steer the litigation the other way. If we report that it is not a tax, it would be contrary to everything that caused us to raise the issue in the first place. Our role is to ensure that citizens are protected from illegal or ultra vires taxation, so we should not shy away from that role. I suggest that if the committee is not ready to reach consensus on the matter, then we will pass. However, if the committee is ready, then I suggest the committee insert that view in the draft report, adopt it and report to the Houses.

The Joint Chairman (Mr. Szabo): Because this matter has been going on since 1997, it might be necessary for the members to have more information and perhaps some advice. We could ask counsel to prepare a briefing note for the committee. The issue has a great deal of history in this committee so it is a matter of better understanding, and the pros and cons of taking a position while judicial proceedings are going forward. Is that course of action acceptable to members of the committee for our next meeting?

Mr. Epp: I am looking at the report prepared by counsel, which is the one proposed for reporting to the House. Is that correct?

The Joint Chairman (Mr. Szabo): It is only an update.

Mr. Epp: I do not see any reason why we could not table that report in the House. It states that the committee will continue to keep itself informed as the litigation progresses. To report that would be acceptable and desirable.

The Joint Chairman (Mr. Szabo): Is it agreed that for the undertaking at the next meeting of the committee we will have in advance relevant information to the discussion about whether we should opine on fee versus tax? In the interim, is it agreed that we finalize or adopt this report and table it in the House?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): We will proceed thus.

The Joint Chairman (Senator Eyton): May I have a supplementary question? I want to go back to the litigation and where it is in the process. There are two issues, one of which was resolved by the Federal Court of Appeal. Where is the other issue? Can we not have a better sense of how this litigation might be determined?

The Joint Chairman (Mr. Szabo): Certainly, if you want a general discussion on what constitutes a fee versus what constitutes a tax —

The Joint Chairman (Senator Eyton): I was thinking more of the mechanics of the litigation process. Where is the issue now?

The Joint Chairman (Mr. Szabo): Two actions were consolidated, and then it was decided to take this preliminary question to the court. If the court said that a tax could not be imposed under this provision, then the main action could go forward.

The Joint Chairman (Senator Eyton): My concern is the second part.

The Joint Chairman (Mr. Szabo): The second part is that the main action, to determine whether it is a fee or a tax, is proceeding but has yet to come to trial.

The Joint Chairman (Senator Eyton): Is it also before the Federal Court of Appeal?

The Joint Chairman (Mr. Szabo): It is before the Federal Court, Trial Division. The most recent proceeding was this week, September 25, I believe, when a pre-trial conference was scheduled. That is wending its way through the preliminary proceedings. I am not aware of a trial date.

The Joint Chairman (Senator Eyton): Is it possible to gain some sense of when that might come up?

The Joint Chairman (Mr. Szabo): We can ask the court but my guess is that they will tell us a trial date will be set when a trial date is set. I am not sure going to courts administration will get us very far. We could probably talk to the parties. They might have a better idea of when they expect to go to trial.

François Michaud, Joint Clerk of the Committee: For your information, for procedural reasons the first sentence of the report that Senator Eyton will table in the Senate will read: ``The committee has the honour to table its report.'' It is just a procedural matter that I wanted to bring to your attention.

C.R.C.c. 1238 — NORTHWEST TERRITORIES REINDEER REGULATIONS

(For text of documents, see Appendix A, p. 3A:1)

The Joint Chairman (Mr. Szabo): This item was first dealt with by this committee in 1983. There was a disallowance and also an undertaking for amendments that were supposed to take place in 2002, I believe. We wrote again on June 5, 2006 saying, where are we?

This item was the first to strike me that we are not receiving much cooperation in terms of acknowledging, responding to, and having undertakings by departmental officials. We will pocket that one. Counsel, in my view, this situation is unsatisfactory. What advice do you have for the committee?

Mr. Bernhardt: I think you have summarized the past history of this issue quite well. The committee was moved to disallow one provision in the regulations. That provision sought to create a cause of action against dog owners for damage they cause to reindeer on reserves. The department agreed there was no authority to create a cause of action through the regulations. The committee eventually disallowed that.

What is left on the file, broadly stated, are issues relating to the need to put in place, parameters and criteria for the exercise of ministers' discretion in issuing permits and licences, putting conditions in those permits and licences and suspending or revoking the permits and licences.

The committee has taken a view that the authority of the minister to do that should be given some framework, some criteria on which the minister exercises decisions. In 2002, the minister of the day personally assured the committee that action would be taken by the end of 2002. That did not happen. That brings us to the chairman's letter of June 5 and the minister's reply. The minister advises that he has instructed his officials to proceed without further delay. He also states, however, and I quote ``that the time required to address this issue is difficult to predict.''

The question then for the committee this morning is simply whether this undertaking is satisfactory and if not, how the committee wishes to proceed. Perhaps at the very least the minister can be asked to give a firmer time frame as to what ``proceed without further delay'' means.

Mr. Wappel: First, in his letter, the minister gave us exactly what we asked for, word for word. However, to address Mr. Szabo's earlier comment of how we might move things along, I suggest that the committee write to the minister thanking him for agreeing with the committee's suggestions and informing him that we will invite the minister and his deputy minister to appear before us — I do not know what the calendar says but whatever date our last meeting is before we break for Christmas — on that fixed date if by that time this matter has not been dealt with.

That course of action gives us a time frame, a good three months, and it gives them a time frame. Even if the minister cannot come, the deputy minister will be required to explain to this committee why the department has not dealt with the issue. In my experience, usually when deputy ministers are required to appear here, things start moving, especially if we give them three months heads up. I think it is three months, is it not? That is what I would propose, committee members. We thank him because he answered exactly as we wanted him to answer, except for that ``as soon as possible.'' This approach gives us a time frame and shows the upper echelons of the department we are deadly serious in terms of seeing this matter through.

Mr. Dewar: In looking over the backgrounder I had the same idea, but I was not sure if, in past practice, we did this kind of thing: that is not to say we could not start a practice. It reminds me of my former profession as a teacher, when if someone did not do their homework, you called in the parents. I like the idea and if it is sensible and within our mandate, I think it is a terrific idea.

The Joint Chairman (Mr. Szabo): Does that sound reasonable?

Mr. Epp: I want to raise a small, technical point. I am a little embarrassed that I signed this letter. Looking at the head of the signatures there is, I think, a word processing glitch. It says ``We look forward to your reply and remain...'' and the next paragraph says ``We look forward to receiving your reply.'' I should have noticed that right above the signatures; it is a little point.

Mr. Lee: I wanted the record to show that this file has not been adrift for 20 years. We did exercise the nuclear option. We did a disallowance. We drew first blood, and at this point we are waiting for, if you will, the minister to fix the statute and the regulations. There are no citizens overtly or conspicuously prejudiced by the current status, other than the lack of a final fix in the regulations, so I would not be quite so negative about where this file has been. It has actually gone right up to the top of the flagpole, and we have done our job.

Some files involving the North and some of our Aboriginal communities take months and years of consultation back and forth; those envelopes simply evolve that way. We have seen that in other files. We should not be too hard on the minister here as he inherits a file that is 20 years old. There are certainly good intentions; he has given the instructions. I would not invite the minister so quickly, but I will go with the committee, whatever they decide. I wanted to make those comments for the record. I am not recommending anything else.

The Joint Chairman (Mr. Szabo): Mr. Lee, you are right. Significant action was taken by the committee under disallowance. It does raise a question. Often, it is not readily apparent how crucial a file may be in its present state. For instance, Mr. Lee says the big problem was addressed under disallowance on one aspect, but we have some cleanup that keeps the whole file open.

What are the consequences to stakeholders since we made our recommendations and had the undertaking? Mr. Lee suggests that there is no damage that we are aware of, but in some cases there may be. For instance, in the imposition of a tax versus a fee, people pay a lot more than they should pay and the longer that practice continues, the more the consequence.

In this regard, I assume that it is public knowledge that amendments are pending. Any stakeholder who might be impacted by this matter probably would have a basis for appeal or deferral until the resolution.

Mr. Bernhardt: Possibly, Mr. Chairman. What counsel usually try to do in our remarks is give enough background and substance of those issues to give committee members some indication of what they are dealing with. That practice is simply to avoid reproducing, in this case, 23 years of correspondence for each meeting.

What we are dealing with here is putting some parameters on the discretion exercised by the minister. The minister has the discretion to lawfully issue, suspend, put terms and conditions on licences. That is not a problem. The committee's view has been that there should be something else, namely some framework in which the minister exercises that discretion.

I suppose, supplementary to what Mr. Lee said, that is the reason why only one of the provisions was disallowed. The committee has disallowed what was in the regulations that should not have been there. We are now left with what is not within the regulations but should be added.

Obviously, you cannot disallow to add something in. What the committee did in its disallowance was separate the issues into things that needed to come out and things that needed to go in. The things that needed to come out have been disallowed.

Mr. Wappel: I want to address Mr. Lee's comments, but I do not want to beat this matter to death. In my view, the issue is not what this committee did or did not do. The issue is what the department has not done. In fact, the department has not done so much that it required this committee to exercise its nuclear option.

Then the former minister, Minister Nault, gave his personal undertaking to this committee that the required amendments would take place by a fixed date. He did not say as soon as possible. He said, I am the minister; they will be done by the end of 2002. They were not, as far as I can see — and perhaps the correspondence was not reproduced.

Whether it was the former minister, his successor or departmental officials, they could have continued to keep this committee informed. They could have said, listen, the minister said the end of 2002: I am sorry, we could not get it done.

By the way, we always hear the excuse of consultations when we deal with the Department of Indian and Northern Affairs. It is just the way it is and we need to get used to that. A couple of other departments use the necessity of consultations with multi-stakeholders to never make a decision.

We experienced this with the estate regulations as well: dealing with who was and who was not a widow, as I recall it. That issue goes on for 20 years because we have to consult. My bottom line is that the committee did its job; it seems to me that the bureaucracy is dragging.

The reason I mentioned the minister is that obviously the minister will not want to come. Of course, the minister inherits an old file; it is not his problem really, except that he is the minister and that is what he is paid for. Hopefully, he will say to his deputy, get rid of this problem before I appear before the committee. That is the whole idea here.

I appreciate what Mr. Lee says and I agree fully that the committee did its job. I see the department dragging and that is why I suggest, along the lines of your earlier comments, that this is a way of putting a fire under people to move on this file, especially in light of a previous minister who gave a firm date and, four years later, we have nothing.

The Joint Chairman (Mr. Szabo): That lack of action is on the advice of the department officials presumably. I think this issue is almost finished. First of all, the disposition of this discussion is that we should proceed with the communiqué to the department as described: that we would like to see something. Ultimately, at the meeting prior to rising for Christmas, they will be required to appear if we cannot resolve this issue. Let us see how that course of action goes. It is not draconian; it looks like a reasonable time to do it.

Flowing from this action, just for the assistance of members, I think we will ask counsel and those who assist in preparing our packages to prioritize issues. Rather than coming up with a grandiose grading scale about urgency or importance, if a matter is important we need to have it flagged. We would like counsel to say, look at this piece of paper for that meeting because the issue is a serious issue, there are consequences and any delay is detrimental. We should have a stamp on it, priority one or urgent, that distinguishes it from the rest of the paper in the pile. Can we do that?

Mr. Bernhardt: In a sense, that prioritizing is already done, Mr. Chairman. The committee does not write to ministers at first instance. If there is correspondence to and from a minister, you can pretty much assume that the issue is significant. If the issue is a ``reply unsatisfactory,'' that issue will be a significant one. An item listed as a special agenda item will be a significant issue.

Things that are ``reply satisfactory, ``action promised'' or ``action taken'' are, by definition, routine proceedings.

The Joint Chairman (Mr. Szabo): I understand that, but this issue is a letter to a minister and from a minister, and I am still not sure at this point whether the amendments, which have not been made yet, are significant and affect anyone or have affected anyone. I do not know how urgent this issue is. I still do not know, even though I know this item involves a letter to and from ministers. The disallowance was important to deal with, and the committee dealt with that, but somebody thinks the undertaking with regard to the other item is not a priority.

If it is not a big deal, if it is only a consequential bureaucratic update or something like that, we do not need to be too excited about it. However, I have this concern that something in this pile is something that we really need to understand the consequences of. We need to understand whether any delay will cause damage or potential damage.

As for the other items, we will keep playing around with them. However, if the item is flagged as a priority, we may have to put it on a schedule that says we will follow up with them every other week if we have not heard back from them — second request, third request — because it is urgent to us.

We will try something along those lines, to make sure that important items do not appear in the normal mill.

There was something else but I have forgotten it at this point. Let us proceed with that letter and see how it goes.

Mr. Epp: Mr. Chairman, are you suggesting that if something we request has not happened in 23 years, we need to either drop it or say now is the time?

The Joint Chairman (Mr. Szabo): No, we do not do things in isolation. If there is a drop-dead date, we need to do something because there are consequences. That means haul them in. If they refuse and all this other stuff, we obviously need to address what our options may be. We will seek advice in that regard, but sometimes things cannot wait years. There are too many pieces of correspondence here. We write a letter and a year and a half later, we finally receive a response. This delay is absolutely ridiculous.

Senator Moore: In my experience in this committee, when something is urgent or of a priority nature, counsel has always come forward. I have been here only for 10 years but they have always been diligent in that regard.

Second, do we vote on Mr. Wappel's motion? Did he call the vote?

The Joint Chairman (Mr. Szabo): I think I asked if it was agreed.

Senator Moore: Okay, agreed. Thank you.

The Joint Chairman (Senator Eyton): I am not sure it is entirely appropriate in this context, but whenever I require a reply outside my Senate activity and I want it in a hurry, I place a label on top of the letter simply saying to my correspondent, ``urgent, requires immediate attention'' and sometimes a date as well. The label tries to remove the item from the ordinary flow, and give and take, of correspondence. It seems to me that flagging a letter from a committee would be useful saying we are serious about this issue and we require an immediate response.

Mr. Bernhardt: One would hope that the letter from, or on behalf of, a parliamentary committee in a government department would, by definition, receive some attention. One wonders how the average Joe who writes to a government department is treated if this is standard.

The Joint Chairman (Senator Eyton): We are trying to elevate certain communications, a limited number, for different attention. We need only to look at a file to get it into the mill but the answers do not arrive until six months or one year later. I am talking about something that elevates a particular communication so that it receives better and quicker attention.

The Joint Chairman (Mr. Szabo): We should be vigilant and come forward with suggestions on how to improve the timeliness of the business that we transact.

We are agreed on item C.R.C.c. 1238.

SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989

(For text of documents, see Appendix B, p. 3B:1)

Mr. Bernhardt: Members probably will be familiar with this file, but for those who may be new to the committee, I will provide a bit of background. On May 5, 2005, the joint committee adopted Report No. 75, a disallowance that contained a resolution that subsection 36(2) of the Ontario Fisheries Regulations be revoked. It is the committee's view that this provision creates an offence of contravening the terms and conditions of a licence without express authority. The committee also concluded that the provision contravenes other scrutiny criteria, trespasses unduly on rights and liberties and represents an unusual and unexpected use of the enabling power.

After this report was tabled, the Minister of Fisheries and Oceans introduced Bill C-52. This bill would simply have added a provision to the act that was similar to the provision in the regulations that had been objected to. Subsection 36(2) of the regulations would have become unnecessary and, in that sense, the committee's concerns would have been resolved.

Based on the expectation that Bill C-52 would be passed, the minister then moved that the committee's disallowance report not be adopted but be referred back to the committee for further study. That motion was adopted by the House of Commons. I note in passing that the disallowance report was, however, deemed adopted in the Senate.

Unfortunately, Bill C-52 did not pass prior to dissolution. In part, the official opposition at the time opposed in principle making contravention of an administrative document, such as a licence, punishable in the same manner as if it were a provision of the act or the regulations, regardless of how this was achieved. Thus, subsection 36(2) of the regulations remains. Presumably, fishers continue to be punished for breaches of terms and conditions of their licences in a manner that the committee views as inappropriate, not to say illegal. Moreover, the use of this technique appears in other regulations made under the Fisheries Act as well as other regulations made under other statutes.

Given the failure to adopt Bill C-52, the stated reason for not proceeding with disallowance was no longer pertinent. In view of this situation, at its June 1 meeting, the committee directed that the Minister of Fisheries and Oceans be advised, pursuant to subsection 19.1(2) of the Statutory Instruments Act, that the committee intended to consider a resolution for disallowance.

That letter prompted the minister's letter of July 18, which the members have before them this morning. In that letter, the minister advises that an amendment to the Fisheries Act to specifically set out the requirement to comply with licence conditions is to be included in the forthcoming bill that will reflect a comprehensive revision of the Fisheries Act. It is expected that this bill will be introduced in the fall. The minister has also offered to come before the committee to provide this assurance in person.

On a cautionary note, objections to this provision have now been twice reported to the Houses by the committee. In addition, its earlier report on the Aboriginal Communal Fishing Licences Regulations dealt in part with an identical provision. Moreover, to date there have been five attempts to amend the Fisheries Act to add this provision. Two of those efforts were part of the total revision of the act. In neither case did the bill proceed past first reading. A more modest package of amendments was introduced in 2004 that bill failed to receive passage. Bill C-52 was a reintroduction of a previous bill that did not progress past first reading.

Given this history, there might be some scepticism as to whether the fact that the introduction of comprehensive amendments to the Fisheries Act is imminent means that a resolution of the committee's concern is imminent. It goes without saying that if a comprehensive bill comes before the Houses that bill will be the subject of lengthy and detailed discussion and consultation, not only by parliamentarians but also by the industry, presumably environmental groups and numerous other affected members of the public. The legislative process will likely take some time. Having said that, it is true that if and when the legislation passes, the committee's concern will be addressed. I suppose the question for members is whether they are content to wait for the introduction of the bill and its eventual fate; whether they want to proceed with disallowance because matters have proceeded far enough in that regard; or whether they want to ask the minister to reintroduce Bill C-52, which is a short, two-clause bill that could proceed through the House more expeditiously.

Senator Bryden: Commenting directly on this, I want to point out that this item is an example of a high priority item. It trespasses unduly on the rights and liberties of the subject and makes an unusual and unexpected use of the powers conferred by Parliament. There is absolutely no question that this issue, for these reasons, was given high priority by the staff and by the committee. To some extent, I do not know what else could possibly have been done than was done acting reasonably to get us to where we are. I have concerns about preparing another report for disallowance. Previously, the Senate proceeded with the disallowance. We did not act, but that was purposeful. It was disallowed by the Senate but when it went to the House, it was subject to negotiations. My guess is that the same thing will happen this time with another disallowance report. This issue is not in its current state because it was not treated as the highest priority by the staff and by the committee over a period of time.

I believe that the best route is to take up the offer of the minister. He said he would welcome the opportunity to assure the committee in person of his intentions to address this concern in an appropriate and timely fashion. This minister wants to appear before the committee so let us invite him and let us have him on the record, with the television cameras. We might be able to offer the minister two or three options that he could commit to that would solve the problem. Currently, law enforcement uses an illegal procedure to harass citizens, and has been for years. It can be made legal but someone has to act. Two things could happen: either we authorize in statute what they are doing or we agree to let the disallowance go through until the Fisheries Act is rewritten.

Mr. Wappel: I completely endorse the senator's comments that this item is a perfect example of an important issue and that we should invite the minister to appear before the committee.

There is an irony in changing from critic to minister, or from chair of a committee to minister. The position on issues can change and when you go from opposition to sitting in the cabinet, you can reverse your position 180 degrees.

In fact, the bill did not pass because of Mr. Hearn, very simply, for policy reasons. It will be interesting to see what he now proposes, as Fisheries Minister, given that he opposed the solution that would have solved the problem. I think we should call him.

I want to also echo for the committee, as a former chair of the House of Commons Fisheries and Oceans Committee, that the Fisheries Act, if not the oldest, is almost the oldest act on the books of Parliament, 1867. Every time an attempt has been made to amend it, it has been stalled. The last comprehensive amendments were brought forward by Fisheries Minister Herb Dhaliwal, so you know how long ago that was. Those amendments failed. Good for Mr. Hearn if he can move the act along. Counsel is right that the number of stakeholders is tremendous. Not only does this act deal with fisheries, but it also deals with oceans, which includes all the permutations and combinations of oceans, including underwater national parks, the environment and all kinds of things. Simply to do the act justice will result in a massive and lengthy study by the House of Commons Standing Committee on Fisheries and Oceans. We will be whistling in the wind for a long time if we wait for that legislation to pass, particularly in a minority Parliament with the all the pull and tug of West Coast, East Coast, St. Lawrence River, Îles-de-la-Madeleine, Newfoundland and Labrador and all the competing interests in the Fisheries Act.

I like Senator Bryden's idea of giving the minister two or three suggestions and encouraging him to move on the issue as a separate item, notwithstanding that he will bring forward an omnibus bill to amend the Fisheries Act. We could also hear from him when that bill is brought in and has gone through cabinet and all the approval processes needed before a bill is tabled. Where does the house leader think the bill sits in terms of priorities in a minority Parliament as we head towards various other factors politically?

Having said all of that, this would be a perfect opportunity to invite the minister in a friendly way, as opposed to a confrontational way, so he can bring us up to speed on where he thinks the department is going. We can make the points we want to make and ask him to consider a more timely method of dealing with issues.

Mr. Kamp: I will say at the outset that I agree with the comments of Senator Bryden and Mr. Wappel that the best approach at this point is to invite the minister. I know he would be glad to explain how he is going forward with a renewal of the Fisheries Act.

Let me make a comment or two about the solutions. Mr. Bernhardt, in his comments, used the word ``inappropriate,'' and I think somebody else has used the word ``harassment'' of fishermen and so on with the current regime in the Ontario Fishery Regulations. A small bill such as Bill C-52 does not solve that problem. The bill makes that approach legal. However, the problem is that subsection 36(2) of the Ontario Fishery Regulations now attracts the punishment section. If someone does not keep the terms and conditions of their licence, they are now subject to the punishment section of the act. If the punishment section of the act unduly trespasses on the rights and liberties of a person or is harsh punishment, simply putting a provision in a bill such as Bill C-52 that says one must abide by the terms and conditions of their license, which now legally allows the use of the punishment section of the act, does not solve that problem.

That problem will always be identified by members of the House. I am not sure of the Senate. The only way to satisfy everyone is to make punishment legal beyond what is in the act now, which is all you can do if you disallow that regulation. All that will be available to Ontario and the other regulations across the country that will now come under its precedent is to suspend or revoke a licence, and that is it. That is all they can do. It can be argued that the punishment is harsher than a fine, which is what they do under the current legislation. We need not only to make a punishment regime legal, but we need a way of providing legally administrative sanctions. That takes something other than Bill C-52.

Mr. Bernhardt: In a narrow sense, the bill resolves the committee's concerns because Parliament has now sanctioned the activity. The committee, in the reasons for its disallowance report, was careful to say that Parliament might well decide that such an offence was not appropriate at all. Indeed, the current Minister of Fisheries and Oceans took the position at the time that not only should this not be in the regulations, but it should not be in the act, either. It should not be anywhere. That is beyond the remit of this committee, but it is certainly an issue for the Parliamentarians and the Houses to consider if and when legislation comes before them.

Mr. Lee: As I understand this, our committee's problem is not with the harshness of the penalties but with the procedure and infrastructure that allowed the application of these penalties and enforcement procedures. I must disassociate myself in part from Mr. Kamp's view, but I do not disagree with the general thrust of his comments.

One might well ask, why did the committee and the House not go ahead and disallow this stuff? Why are we not doing a full court press? The reasoning behind the complex approach that has been adopted is the argument that will follow if we were to disallow the regulations that are being used and enforced in Ontario. I am not saying they are being used to harass, but they are illegal and they are being used. If we simply disallow all these regulations and leave a vacuum, arguably there will be a disorder in Ontario and there will be no enforcement regime sufficient to allow appropriate day-to-day enforcement. That disorder was serious enough that the Ontario minister wrote to this committee in the last or second last Parliament, saying, ``Please do not disallow these enforcement regulations because it is all we have.''

With that in mind, as one member, unless I am pushed to the wall, I do not want to disallow something that would create a disorder in one of our provinces. If these regulations are ultra vires, there may be others across the country. That is why we are where we are now.

I am still firmly committed to revoking these regulations, even if we need to disallow, but we need to give the government an opportunity to put something else in place. First, we need to have them accept our position. I do not know whether the former official opposition, which is now in government, has actually accepted the view of the committee. If the government does not accept our view, we may have a confrontation coming. We will see.

The Joint Chairman (Mr. Szabo): I think we have a consensus here. We have not had a minister or anyone come before us. The minister's office offered graciously, and we should accept. If you take out your calendars or a piece of paper, our normal pattern of meetings means there is a meeting on October 19, November 2, November 23, December 7 and, if necessary or possibly, one on December 21.

The only reason I raise the meeting schedule is that if we make a communiqué to the minister to appear — and this matter is not a black and white issue, there is some detail and consideration to be made — the October 19 meeting may be asking too much, unless the members feel it we should accelerate it. That means we would ask him to appear. We could ask for October 19 or offer him, alternatively, November 2 his staff needs the time to prepare properly for that appearance.

Mr. Kamp: I know the House of Commons fisheries committee invited him for October 19 and he told us he was in Toronto that day. It is unlikely he is available for October 19.

Mr. Wappel: May I suggest November 2, with a fallback of November 23? By November 2, he will have had six weeks to introduce the legislation. If it has been introduced, great; we can take a look at it and see what his proposed solution is. If he has not introduced legislation, we can ask him why not. If he cannot make it November 2, he has a fallback of November 23.

I suggest we leave December 7 open, based on what we discussed with respect to the Minister of Indian Affairs and Northern Development. That meeting is the last realistic date before Christmas, so I do not want two ministers to appear on the same day.

I recommend we ask him for November 2, with a fallback of November 23.

The Joint Chairman (Mr. Szabo): Let us do that. I think we also should request that the officials prepare for us a little briefing note on possible options and the ramifications.

Personally, when I started counting the number of months and maybe years it would take to fix this issue with a new act or amendments, an omnibus bill to amend the Fisheries Act, and to pass that act through the full legislative process, with a possible election coming up, et cetera, we have basically said, let us not fix this.

That does not seem like the preferred route. Our responsibility is to find a way to resolve this matter as quickly as possible. Hopefully, the minister will help us find a consensus.

Mr. Wappel: This file illustrates the dilemma this committee sometimes has. We have to act on the legalities. However, interposed with the legalities are policy considerations — whether, as a matter of policy, we want to allow flexibility in punishment, if I can put it that way. If we want only suspensions or revocations, that is a policy issue. That is not something this committee can deal with. That is for the Houses to deal with in whole.

We can deal with the legal question of, is there a legal basis upon which these regulations sit? Clearly, since we disallowed these regulations, we found there was no legal basis upon which these regulations can sit. Given that, they are illegal, period. That is why we proposed they be disallowed. If there are alternative policy methods of dealing with them, that is for the Houses to deal with.

I am hesitant, Mr. Chairman, when I hear you ask the counsel to put forward options, because you are considering Senator Bryden's and my remarks that there might be some options, and there might be. However, counsel cannot recommend policy direction to this committee because we are of various parties and do not necessarily represent the ministry, et cetera. All we can do is stick with the legalities in our 12 or 13 criteria and determine whether this regulation fits or does not fit.

We have said clearly it does not fit and we reinforced that finding at our meeting of June 1. Hopefully, we will make a clear distinction between making the regulation legal and disallowing it. In other words, the regulation is illegal and ultra vires: here is how you make it legal, if you want to make it legal. Alternatively, if you do not want to make it legal, you had better disallow this regulation and deal with enforcement however else you want to do it.

Mr. Chairman, I urge caution that this committee not tread on policy. For 18 years, the committee has stuck to the legalities and the 13 criteria. It is for other places to delve into policy issues.

The Joint Chairman (Mr. Szabo): Thank you, I agree with you fully. I am not even sure if everybody is aware of all the possible directions this issue could go. I do not want to take a position on any of them, but if we go after the full disallowance and do the act route, our timeline will be as the minister can make it happen and at the pleasure of the House.

However, there are a couple of other options I was not even aware of. If the members are to be as prepared as possible for a good meeting with the minister, is there anything our officials can do to help us better appreciate the issues and help us do our job better — but not to make decisions or recommendations for us?

Senator Bryden: I want to add another thing here. Something else will happen if somebody does not deal with this issue. That is, someone who is charged will defend, and they will take it all the way to the courts until they get a decision. The court will decide that this provision is ultra vires and illegal. Once that cat is out of the hat, the provision is gone.

It is in the interests of the department, I think, to solve this problem. If I was advising a client who had deep pockets, I would say, let us sort this out right now. Let us take it and run with it.

The Joint Chairman (Mr. Szabo): That is another consideration for all of us as we move through this issue.

The Joint Chairman (Senator Eyton): To speak to the possible dates, I have a long-standing problem with November 2. I address this comment to our general counsel and to my co-chair; I hoped to make November 23 the first choice and November 2 the second choice rather than the other way around. I prefer November 23 because I would like to be here when the minister is here.

The Joint Chairman (Mr. Szabo): Agreed: Keep us all together and up to speed. Thank you for your consideration of the members that want to be here. Are we satisfied on our plan of action? Agreed.

SOR/2004-180 — ORDER AMENDING THE ONTARIO HOG CHARGES (INTERPROVINCIAL AND EXPORT) ORDER

SOR/2004-256 — ORDER AMENDING THE ONTARIO HOG CHARGES (INTERPROVINCIAL AND EXPORT) ORDER

SOR/2004-303 — ORDER AMENDING THE ONTARIO HOG CHARGES (INTERPROVINCIAL AND EXPORT) ORDER

SOR/2005-13 — ORDER AMENDING THE ONTARIO HOG CHARGES (INTERPROVINCIAL AND EXPORT) ORDER

(For text of documents, see Appendix C, p. 3C:1)

Under the New Instruments heading on the agenda, there are a bunch of items. The last we heard of these was February 2005. Drafts were supposed to be registered and now in operation but that did not happen. The question is, why does everybody make a commitment to do something but a year and a half later, nothing has been done?

Mr. Bernhardt: In this instance, they decided to give the money back. In the course of reviewing these orders, certain anomalies came to light and certain questions were raised. The first one was that in all four cases, none of the instruments had been registered within the time required under the Statutory Instruments Act. In one instance the delay was 81 days and the act requires that statutory instruments be registered within seven days. The instruments are regulations so they do not come into force until they are registered. This delay raised the possibility that during the period before the regulation was registered, if there was an increase in the charge, that charge would have been collected illegally. Between 1998 and 2004, no amendments were registered to this order, which, given the history before and after of frequent amendments, seemed odd. The board was asked about that as well.

As for the delay, the National Farm Products Council has advised the committee that the Ontario Pork Producers Marketing Board, OPPMB, has procedures in place to ensure that these delays will not happen in the future.

The committee has been told that three amendments were made but were never registered between 1998 and 2004. The amendments were not registered on advice from the Department of Justice that the order was not a regulation; therefore amendments to the order were not regulations and did not need to be registered. In 2004, the department apparently changed its mind again and went back to its view before 1998 that these orders were regulations and were required to be registered.

The fees imposed by the three most recent amendments before the committee are being refunded and a notice to that effect has been posted on the website of the OPPMB. The reason was not because of something done by the committee. These fees were collected as a special fee and the reason for the special fees has disappeared. They were seeking to fund a challenge to U.S. dumping duties. The U.S. has decided to give back the dumping duties, thus, the money will be returned to the producers.

The only issue left concerns SOR/2004-180. This fee increase is not affected by the refund. The per-hog charge was increased from $179 to $255. During a period from May 21, 2004, to August 12, 2004, any increased money was collected without proper authority. The question for the committee, given that the problem will not arise again, is whether to decide simply that the money raised by the fee increase is water under the bridge. Money was charged and collected for a short period of time. If the committee wishes to pursue the issue, I suggest that, if money was collected, the committee write to inquire how much was collected and whether the department is in a position to refund it to the people from whom it was collected.

Senator Bryden: I suggest the latter action.

Mr. Wallace: We do not know how many people this fee increase affects or what the dollar value is. Does counsel have an educated guess?

Mr. Bernhardt: I know only that the increase is 86 cents per hog and we are looking at 81 days in spring and summer 2004.

Mr. Wallace: I have a suggestion, as a new member. Mr. Chairman, you talked about moving agenda items along that have been around for years. This one is obviously a minor issue. I suggest that the committee forget it and move on.

The Joint Chairman (Mr. Szabo): Certainly, knowing the dollar value estimate can facilitate that. We can make the inquiry when a fee increase occurs that is not authorized by the legislation.

I was concerned that this department is not brand new so how did they fail to register?

Mr. Bernhardt: The committee encounters that problem often with provincial marketing boards. As members are aware, a province sets up a marketing board under provincial legislation to deal with marketing within the province. Then, the federal government gives identical powers under federal legislation to the same board for marketing outside the province. The provincial board sits in a province and deals with a province and the board is only vaguely aware of Ottawa and federal legislation. That situation leads to this kind of problem from time to time. The committee must remind the boards that they are required to do certain things under federal legislation and to ensure they have procedures to do these things.

The Joint Chairman (Mr. Szabo): Is there a resolution? Can we mitigate the incidence of this problem by sending out a bulletin to communicate the message to those responsible?

Mr. Lee: I understand your desire to fix things that are broken. In this case, getting back to the legalities, I take the view that this situation is significant. The problem identified has been repaired, except for one thing. When this committee sees fee payers that are charged fees that are illegal, we take steps, normally. We are pleased that on some previous files that go back many years, monies were returned to people who were illegally charged. I do not care whether the illegal charge is only 50 cents or so per hog because if you deliver 500 hogs, that fee adds up to $250. I want to know that the people who charge and collect these fees, illegally in the view of the committee, take appropriate steps to make refunds available. It does not matter that it might cost them postage to do it. They charged fees illegally and they should be responsible for reimbursements. This is how we earn our money as MPs and senators — we insist on legality, and they ought to know that.

I suggest the committee write to ask the department to make us aware of the steps they have taken to ensure that appropriate refunds to the people who paid the fees have been or will be made. I agree that we do not need to examine the figures to ensure that every nickel was returned, but I am not prepared to simply accept their statement.

The letter from the National Farm Products Council dated September 13, 2005, states: ``...any levies collected during the period in question will be refunded to producers...'' The committee can ask the OPPMB to clarify whether they have complied and how. If the board has taken appropriate steps, I suggest the committee close the file.

The Joint Chairman (Mr. Szabo): That suggestion is reasonable and appropriate. For the interest of the committee, we should ask them to confirm how much they paid back.

The Joint Chairman (Senator Eyton): While the pennies per hog might seem insignificant, the volume of trade is tremendous. I suspect the numbers are substantial.

The Joint Chairman (Mr. Szabo): I used to do time-in-motion studies and knew then how much it cost to produce a letter. It is my sense that all that has gone on in respect of this file because the board did not register likely cost as much if not more than the overcharge.

I will take suggestions or recommendations from counsel on the appropriate response in this case to a distant board or agency. If someone within the organization does not have the responsibility to track its trigger points and responsibilities under legislation, whether federal or provincial, problems could arise in the future. Is there any way that we can legally or responsibly deal with that?

Are members agreed that the committee send a letter?

Hon. Members: Agreed.

[Translation]

SOR/2005-121 — REGULATIONS AMENDING THE REGULATIONS DESIGNATING CERTAIN COUNTRIES FOR THE PURPOSES OF TARIFF ITEM NO. 9810.00.00, 1999-1

(For text of documents, see Appendix D, p. 3D:1)

Mr. Jacques Rousseau, Counsel: Mr. Chairman, this is a much less complex file. The Committee noted an error in the title by which the Regulations are listed in the Consolidated Index of Statutory Instruments. Upon verification, the error was corrected. No further action is therefore warranted and this file can be closed.

[English]

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

Hon. Senators: Agreed.

[Translation]

SOR/95-26 — SPECIAL IMPORT MEASURES REGULATIONS, AMENDMENT

SOR/2000-138 — REGULATIONS AMENDING THE SPECIAL IMPORT MEASURES REGULATIONS

(For text of documents, see Appendix E, p. 3E:1)

Mr. Rousseau: At issue is the statutory authority of the Governor in Council to prescribe by way of regulations the factors that may be taken into consideration by the Commissioner or Tribunal in making a determination. The regulations clearly list a number of factors that the Commissioner or the Tribunal may take into consideration. However, the regulations further state that the Commissioner or the Tribunal may take into consideration any relevant factor, as circumstances warrant.

As counsel for the committee pointed out in a letter dated October 18, 2005, to say that the Commissioner or Tribunal may take into consideration any relevant factor is not the same as prescribing the factors that must be considered.

At best, this amounts to stating the obvious, since we cannot imagine why the Commissioner or the Tribunal would take into consideration factors that are not relevant.

In their letter, counsel noted that in the same enabling provision, Parliament had conferred broader regulatory authority over other matters. Specifically, the Act authorizes the Governor in Council to prescribe factors that may be taken into consideration in determining whether injury was caused by dumping, a much broader enabling provision in the same Act.

A distinction can be drawn between the authority to prescribe factors that may be considered and the authority to regulate such factors. If the Governor in Council must have broader regulation making authority, then the act should be amended accordingly. As counsel's letter points out, the necessary amendments have already been made elsewhere in the Act.

In its response dated March 16, 2006, the Department instead suggests that the Regulations be amended. However, as becomes apparent on reading the letter, the proposed amendment would merely mention the possibility of the Commissioner or Tribunal taking into consideration relevant factors before prescribing specific ones. The proposed amendment is clearly unsatisfactory because first of all, the Governor in Council is not empowered to adopt a provision of this nature.

If there is no objection, counsel recommends that another letter be sent to the department requesting that the disputed provision be repealed if the legislation cannot be amended by Parliament.

[English]

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

Hon. Members: Agreed.

Mr. Lee: I want to comment on the March 16 letter from finance. It is styled as protected. It is curious why a public servant would send a letter to a committee of Parliament and class the letter as protected. Is there any significance that we should know about?

[Translation]

Mr. Rousseau: I am afraid that is it simply a matter of habit. In any event, the committee has never believed that this would make any difference to the way in which correspondence with departments is handled.

[English]

Mr. Lee: Do you mean it was only a bad habit? What is ``protected?'' What are we supposed to do with this letter? Are we supposed to put it in a piece of cellophane or not show it to the public?

[Translation]

Mr. Rousseau: The department forwards a letter to us, knowing full well that the correspondence will be published in the committee's official records. Most likely the machine automatically creates this kind of heading.

[English]

Mr. Lee: Thank you, counsel.

The Joint Chairman (Mr. Szabo): Are we agreed on the recommended course of action?

Hon. Members: Agreed.

SOR/92-507 — STORAGE OF PCB MATERIAL REGULATIONS

(For text of document, see Appendix F, p. 3F:1)

Mr. Bernhardt: There are three points of drafting to address. These amendments were to be drafted in the course of consolidation of these regulations with the Chlorobiphenyl Regulations. When last advised, the department indicated that hopefully these amendments would be completed by April 2006 and prepublished shortly thereafter. As yet there is no prepublication. A further letter, asking where things stand, seems to be in order.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): There should be a reverse onus. When we write to make a request, we want to be advised if an undertaking will not be met: we should not need to search for an answer. This committee is a business and we need to move our files forward. If good faith is not shown, then lack of good faith may give us impetus to do something else.

SOR/2002-164 — NATIONAL CAPITAL COMMISSION ANIMAL REGULATIONS

(For text of document, see Appendix G, p. 3G:1)

Mr. Bernhardt: In a nutshell again, Mr. Chairman, amendments have been promised, but they have yet to see the light of day. Again, it is a matter of writing to the commission to ask what is happening and when they expect to complete this.

The Joint Chairman (Mr. Szabo): Agreed?

Hon. Members: Agreed.

Again, there should be a reverse onus. We must start doing that.

SOR/98-48 — REFUND OF DUTIES REGULATIONS

(For text of document, see Appendix H, p. 3H:1)

The Joint Chairman (Mr. Szabo): On December 2004, we asked for advice on the issues we raised. On June 2005, the agency said they intended to complete the amendment process within the next year. On November 18, we received a response that the rule in subsection 74(1.2) of the Customs Act need not be repeated in the regulations. Where does that leave us now?

[Translation]

Mr. Rousseau: Mr. Chairman, amendments were promised with respect to all of the points raised in the letter sent by counsel on December 7, 2004, with the exception of point No. 3. In that instance, the Agency provided a satisfactory response. As indicated in the letter of November 18, the act now contains a provision which corrects the problem identified.

Now then, in answer to your question as to whether the committee agrees, counsel will monitor the situation, as usual, in terms of progress on the promised amendments and will keep the committee apprised of any development. Under the circumstances, given the time that has elapsed since the last letter was received, it might be advisable for committee counsel to write back to the department.

[English]

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

Hon. Members: Agreed.

Senator Moore: What will the next letter request?

Mr. Rousseau: It will ask where they are with respect to the promised amendments.

The Joint Chairman (Mr. Szabo): I think it is suggested that our letters will be more business-like and indicate that if undertakings are not done on a timeline as represented, the onus is on them to inform us, rather than our searching for a response.

Senator Moore: When we write this letter, do we ask for a reply from the recipient within so many days, or within a month? If we send out a letter, we do not want it to float around another three or four months.

The Joint Chairman (Mr. Szabo): How about 30 days?

Senator Moore: Yes, that is not unreasonable.

The Joint Chairman (Mr. Szabo): Let us ask for a reply within 30 days. Agreed?

Hon. Members: Agreed.

SOR/2003-289 — FEDERAL HALOCARBON REGULATIONS, 2003

(For text of document, see Appendix I, p. 3I:1)

The Joint Chairman (Mr. Szabo): This item was raised as a problem on May 12, 2005. On August 9, 2005, the department said they intend to make changes to the regulations but there has been nothing since, apparently. Is this the same problem?

[Translation]

Mr. Rousseau: Again, Mr. Chairman, we are dealing with the same thing. Amendments have been promised with respect to certain points raised and satisfactory responses have in some cases been provided. At this stage, counsel should write again to the department to request a status report on the promised amendments. Is the department waiting for a particular moment to act? If it is a matter of requesting a response within a specific time frame, then we could also include this request in the letter.

[English]

The Joint Chairman (Mr. Szabo): I believe that we probably should follow the same course to send them a letter saying we are trying to clear up our files on a timely basis and we have not heard from them. We would like a response. If there is no date, and no undertaking has been made in the past, we should ask them specifically for a timeline. Then we will know what we are dealing with. We would appreciate a response to this letter within 30 days. Agreed?

Hon. Members: Agreed.

SOR/2003-307 — ENVIRONMENTAL EMERGENCY REGULATIONS

(For text of document, see Appendix J, p. 3J:1)

The Joint Chairman (Mr. Szabo): This item was raised as a problem in January 2005. On September 9, 2005, they said they will correct in 2006, which we are still in. We accepted an undertaking by them to do something some time during the next year and three months.

Mr. Bernhardt: Mr. Chairman, in this case, the reason there has been no further correspondence is simply because the file has been waiting to come before the committee. At some point, counsel can only take a file so far. We write to the department; we receive a reply. Eventually that file goes into a queue to come before the committee.

There may be a delay. In this case, the department said, yes, you are right, we will fix it and here is the timetable for fixing it. The department said it will be done by the end of 2006. That nothing has been done since then is simply a factor of the committee's workload and schedule.

In this case, for example, I suggest that the file simply be brought back to committee in December. At that point, we will check to see if the undertaking has been done. If it has not, we will write to the department and say, ``You promised; what is going on?''

The Joint Chairman (Mr. Szabo): Agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): I am surprised we accepted a thing saying they would do it over the next year. Anyway, if there is good reason, that is okay.

Mr. Lee: Mr. Chairman, I want to comment too. I appreciate the chair's desire to see our work accomplished expeditiously, but in light of the many years I have spent on this committee, there is a flow of work with all the departments we deal with. The matters we are dealing with now are not out of spec at all. They are work in progress, and all our counsel manage the workflow in this committee carefully.

I understand the view of the chairman: Why is this little job waiting around to be done? Hundreds or thousands of little jobs are all in the queue in departments. We are not dealing with fixing up a couple of words on a pamphlet or brochure. We are dealing with regulations, in relation to which there is a mammoth bureaucracy that is cumbersome and meticulous in most cases.

I only wanted your remarks to be in that context: that counsel are following these matters in the way they have done for years. The process seems to work. It seems slow, but that is precisely how these things are done. We measure our work done, as counsel will do later in the agenda, by showing numerous files, either without comment or mission accomplished.

The Joint Chairman (Mr. Szabo): Point well taken.

Mr. Lee: Let us take her as she comes.

The Joint Chairman (Mr. Szabo): I will certainly seek counsel's counsel as matters go on. I will learn. However, we can suggest such things as, should there be undertakings that you cannot meet, the courtesy of a reply to advise us of that would be appreciated.

We will bring this item back at the end of the year. Agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): We move to the agenda heading, Reply Unsatisfactory.

Mr. Rousseau: Reply Satisfactory.

The Joint Chairman (Mr. Szabo): Thank you for the correction.

[Translation]

S1/94-8 — ORDER DESIGNATING THE MINISTER FOR INTERNATIONAL TRADE AS MINISTER FOR PURPOSES OF SECTION 1 TO 9 AND PARTS I AND II OF THE ACT

(For text of document, see Appendix K, p. 3K:1)

Mr. Rousseau: Before summarizing this file, I would like to point out something that to my knowledge has never happened before. The letter was drafted in French, but contains English quotations. When the correspondence was translated, the English quotations were translated into French. So then, you have letters translated into English that contain quotations in French.

These quotations are to be found in each language, but not necessarily where we would normally expect to find them. Basically, we have letters in French containing quotations in English, and vice versa.

Having said that, the order in question was adopted on January 12, 1994. Its purpose was to designate the Minister of International Trade as the minister responsible for enforcing certain provisions of the North American Free Trade Agreement Implementation Act as of January 1, 1994, that is 12 days before the making of the order. We know the Minister exercised his authority to recommend the appointment of a person to the position of secretary of the Canadian Section of NAFTA before January 12, 1994.

The letter sent by committee counsel on July 8, 1998 explains why the department's initial response was deemed unsatisfactory by the joint committee. However, it also acknowledges ultimately that there are legal reasons for ensuring that this error does not have negative consequences for third parties who dealt in good faith with the Secretary of the Canadian Section of the NAFTA Secretariat.

According to the letter, some clarification of the situation is in order. The department's response emphasizes that Governor-in-Council orders are presumed to be valid and that in this instance, no harm was suffered by anyone. Case law cited by the department in its last letter shows that each case is in fact unique.

For these reasons, if the committee has no objections, the department's response could be deemed satisfactory and the file could be closed.

[English]

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

Hon. Members: Agreed.

SOR/2003-281 — REGULATIONS AMENDING THE LAW LIST REGULATIONS

(For text of document, see Appendix L, p. 3L:1)

The Joint Chairman (Mr. Szabo): This letter asking for information was dated December 6, 2004 and responded to on May 11, 2005. Now we are somewhere.

[Translation]

Mr. Rousseau: Counsel identified a discrepancy between the French and English versions of the Regulations. In its response, the Agency notes that this discrepancy is due to the way in which the act itself was drafted. If the committee is satisfied, this file can be closed.

[English]

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

Hon. Members: Agreed.

SOR/98-131 — REGULATIONS AMENDING THE EGG REGULATIONS

(For text of document, see Appendix M, p. 3M:1)

SOR/2003-79 — TETRACHLOROETHYLENE (USE IN DRY CLEANING AND REPORTING REQUIREMENTS) REGULATIONS

(For text of document, see Appendix N, p. 3N:1)

SOR/2005-200 — VETERANS BURIAL REGULATIONS, 2005

(For text of document, see Appendix 0, p. 3O:1)

SOR/2000-307 — RULES AMENDING THE LICENSING AND ARBITRATION REGULATIONS

(For text of document, see Appendix P, p. 3P:1)

SOR/2005-131 — PLUM POX VIRUS COMPENSATION REGULATIONS, 2004

(For text of document, see Appendix Q, p. 3Q:1)

SOR/2005-254 — REGULATIONS AMENDING THE PLUM POX VIRUS COMPENSATION REGULATIONS

(For text of document, see Appendix R, p. 3R:1)

SOR/2005-330 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of document, see Appendix S, p. 3S:1)

SOR/2005-361 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of document, see Appendix T, p. 3T:1)

Mr. Bernhardt: Mr. Chairman, with the committee's permission I propose to deal with all the instruments under the agenda headings, Action Promised and Action Taken as a group. That is in keeping with the usual practice.

Taken together, six amendments are promised to the committee. Progress on these will be followed up by counsel in the usual manner. In addition, 35 amendments have been made to address points previously raised by the committee. That is the good-news portion of this morning's program.

SOR/2004-176 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-12

SOR/2004-177 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-13

SOR/2004-178 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2004-179 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2004-182 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-14

SOR/2004-183 — ORDER 2004-66-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2004-184 — ORDER 2004-87-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2004-185 — REGULATIONS AMENDING THE UNITED NATIONS SUPPRESSION OF TERRORISM REGULATIONS

SOR/2004-186 — REGULATIONS AMENDING THE PROOF OF ORIGIN OF IMPORTED GOODS REGULATIONS

SOR/2004-187 — ESKASONI BAND COUNCIL METHOD OF ELECTION REGULATIONS

SOR/2004-188 — REGULATIONS AMENDING THE APPLICATION OF PROVINCIAL LAWS REGULATIONS

SOR/2004-194 — ORDER AMENDING THE SCHEDULE TO THE EXPORT AND IMPORT OF ROUGH DIAMONDS ACT

SOR/2004-200 — REGULATIONS AMENDING THE REGULATIONS PRESCRIBING CAPITAL ASSETS FOR THE PURPOSE OF THE DEFINITION ``STRATEGIC INFRASTRUCTURE'' IN THE CANADA STRATEGIC INFRASTRUCTURE FUND ACT

SOR/2004-204 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2004-205 — ORDER AMENDING SCHEDULE I TO THE PUBLIC SERVICE STAFF RELATIONS ACT

SOR/2004-206 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2004-207 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT

SOR/2004-208 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-15

SOR/2004-210 — ORDER 2004-87-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2004-211 — POTATO WART COMPENSATION REGULATIONS, 2003

SOR/2004-212 — PICKERING AIRPORT SITE ZONING REGULATIONS

SOR/2004-216 — ORDER 2004-66-03-03 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2004-219 — ORGANIZATIONS IN THE PROVINCE OF ALBERTA EXEMPTION ORDER

SOR/2004-220 — ORGANIZATIONS IN THE PROVINCE OF BRITISH COLUMBIA EXEMPTION ORDER

SOR/2004-223 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS

SOR/2004-224 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2004-225 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING AGENCY QUOTA REGULATIONS

SOR/2004-226 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING AGENCY QUOTA REGULATIONS

SOR/2004-227 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-16

SOR/2004-228 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-17

SOR/2004-229 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-18

SOR/2004-230 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-19

SOR/2004-231 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-20

SOR/2004-233 — ORDER 2004-66-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2004-234 — ORDER 2004-87-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2004-235 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1362 — BENTAZON)

SOR/2004-236 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1382 — PYRIMETHANIL)

SOR/2004-239 — ALBERTA SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

SOR/2004-242 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2004-243 — REGULATIONS AMENDING THE MEMBERS OF COMMITTEES AND SPECIAL COMMITTEES (NAFTA) REGULATIONS

SOR/2004-245 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1371 — FLUDIOXONIL)

SOR/2004-246 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1372 — TRIMETHYLSULFONIUM CATION)

SOR/2004-247 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1378 — FLUAZIFOP-BUTYL)

SOR/2004-248 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1387 — CYHALOTHRIN-LAMBDA)

SOR/2004-257 — STATISTICS CANADA 2006 CENSUS TERM EMPLOYEES EXCLUSION APPROVAL ORDER REGULATIONS ON THE EMPLOYMENT WITH STATISTICS CANADA FOR THE PURPOSE OF THE 2006 CENSUS

SOR/2004-259 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2004-6

SOR/2004-261 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1242 — ERYTHRITOL)

SOR/2004-262 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1377 — FORAMSULFURON)

SOR/2004-264 — NEW BRUNSWICK RULES OF PRACTICE RESPECTING REDUCTION IN THE NUMBER OF YEARS OF IMPRISONMENT WITHOUT ELIGIBILITY FOR PAROLE

SOR/2004-266 — REGULATIONS REPEALING THE NON-PROHIBITED AMMUNITION TRANSFER DOCUMENT REGULATIONS

SOR/2004-281 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT (KLUANE FIRST NATION)

SOR/2004-282 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1356 — DISINFECTANTS)

SOR/2004-283 — RULES AMENDING THE FEDERAL COURT RULES, 1998

SOR/2004-284 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(B)) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2004-1

SOR/2004-285 — ORDER 2004-87-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2004-286 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-21

SOR/2004-287 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-22

SOR/2004-288 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-23

SOR/2004-289 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-24

SOR/2004-290 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-25

SOR/2004-291 — SPECIAL APPOINTMENT REGULATIONS, NO. 2004-26

SOR/2004-292 — REGULATIONS AMENDING THE CATSA AERODROME DESIGNATION REGULATIONS

SOR/2004-293 — LISTED AIRPORT REGULATIONS

SOR/2004-294 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS

SOR/2004-295 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS

SOR/2004-296 — REGULATIONS AMENDING THE SPECIAL SERVICES AND FEES REGULATIONS

SOR/2004-297 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA POST CORPORATION ACT (MISCELLANEOUS PROGRAM)

SOR/2004-300 — ORDER AMENDING THE DESCRIPTION OF WOOD BUFFALO NATIONAL PARK OF CANADA IN SCHEDULE 1 TO THE CANADA NATIONAL PARKS ACT

SOR/2004-304 — SASKATCHEWAN SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

SOR/2004-305 — NOVA SCOTIA SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

SOR/2004-307 — PRINCE EDWARD ISLAND SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

SOR/2004-310 — MANITOBA SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

Mr. Bernhardt: Under the heading ``Statutory Instruments Without Comment,'' 72 instruments are listed that have been reviewed and have been found to conform with all of the committee's scrutiny criteria.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Are there any further items to be raised by committee members?

Senator Bryden: Mr. Chairman, at one time we had a backlog figure. It is always useful to track the work of the committee. At some time, perhaps we could have that figure to know whether we are keeping up. I am mindful of the fact that we are short two counsel.

Mr. Bernhardt: I do not have up-to-date figures. At one time we had cut the backlog by about 60 per cent. I would guess that over the summer that has gone back up, given the shortage of staff.

Senator Bryden: It is a useful tool for us and might be a helpful tool for you to sequester staff.

Senator De Bané: Mr. Bernhardt, do you use a software program to manage the documents.

Mr. Bernhardt: The files are managed in a big black binder. The assistants record on a weekly basis and files come out every week or 10 days. At any given time the committee has about 800 active files.

Senator De Bané: Perhaps your experts can determine whether there is a software program to meet your needs.

As you know, all departments have software to manage their correspondence, et cetera. Perhaps counsel could look into that.

The Joint Chairman (Mr. Szabo): Committee members might recall considering a consultation with other jurisdictions to learn about how they do their business. Obviously, we have challenges that they might have solutions to. Perhaps this subject would be a good agenda item. I am sure Mr. Wallace would like to come back to the committee for that meeting.

Mr. Lee: Mr. Chairman, I do not like to talk about our workload as backlog. There is always room for improving any organization's workflow and, although we may learn from other jurisdictions, it might be nice to organize a big trip to our own secretariat. There are new members on the committee and the costs of making this trip would be modest because it is just across the street. Committee members could see how our staff organizes our work. They do an excellent job. The comments around the table should not suggest that the work of our counsel and staff is anything less than sterling.

Perhaps the joint chairmen could arrange that trip if members are interested. I would not mind seeing the work environment. I know they are understaffed but I think we will be duly impressed with the way in which they manage the workflow. It will give us a better idea of where all this paperwork comes from.

The Joint Chairman (Mr. Szabo): That sounds like a good idea.

Mr. Bernhardt: Certainly, if members want to do it individually, informally or as a group, they are welcome.

The Joint Chairman (Mr. Szabo): They have a small boardroom. We could see how prudent they are in terms of cost. Perhaps we could include some sandwiches while we work and meet people. Before Question Period, and without interfering with other committee work, we might be able to receive interested members.

The committee adjourned.

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