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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 10 - Evidence, October 22, 2009
OTTAWA, Thursday, October 22, 2009
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:34 a.m. for the review of statutory instruments.
Senator John D. Wallace and Mr. Andrew Kania (Joint Chairs) in the chair.
AUSTRALIA-NEW-ZEALAND SCRUTINY OF REGULATIONS CONFERENCE OF JULY 2009
The Joint Chair (Mr. Kania): First, we need a volunteer to bring a motion before us to adopt and then to table the report from Australia.
Mr. Lee: So moved.
The Joint Chair (Mr. Kania): Are all agreed? Carried. Thank you.
Mr. Lee: Hold on, please.
I moved the motion so we could debate the report. I want to bring one minor item to the attention of the chairs. About 10 lines into the second paragraph on page 3, we discuss a paper on incorporation by reference. It says: "The issues identified in this paper could possibly serve as a useful starting point."
Reference to this paper is incorrect. It is not this paper or this report. It is that paper; it is another paper. Therefore, we ought to change the "this" to a "that." One would not anticipate finding more information in this paper on the subject of the incorporation by reference.
The Joint Chair (Mr. Kania): All agreed?
Hon. Members: Agreed.
The Joint Chair (Mr. Kania): It is adopted.
REPORT NO. 80 — INCORPORATION BY REFERENCE
(For text of documents, see Appendix A, p. 10A:1 )
Peter Bernhardt, General Counsel to the Committee: Chair, in December 2007, the committee tabled Report No. 80, which dealt with incorporation by reference. In that report, the committee set out the reasons for its conclusion that incorporation of external material into a regulation as amended from time to time, in the absence of clear authority, should be seen to be improper and illegal.
Now, in the government response to that report, the Minister of Justice proposed that a legislative solution be sought to resolve the impasse between the Department of Justice and the committee, and to clarify the appropriate principles. Input from the committee was invited as to what form that legislation might take and, last May, the joint chairs advised the minister the committee is interested in further examining issues relating to the question and having the opportunity to make its views known.
The minister subsequently indicated it was his objective to table legislation this fall. Then, on October 9, I was told that, if this objective was to be met, the committee's comments needed to be received by October 16. Obviously, that was not possible.
I have been in contact with officials from the Department of Justice and I have been given to understand that, if the committee requests an additional period of time to look at the issue and make its views known, then such a request will likely be favourably received.
The first question, then, is whether the committee wishes to look at this issue and, if so, how it wants to proceed. Obviously, the first step is to write to the minister making that request. The committee then has a number of options: The committee can ask officials from the department to appear for a briefing or it can instruct counsel to meet with the departmental officials and report back. Alternatively, the committee can decide it is sufficiently familiar with the issue and proceed directly to preparing written comments for the minister.
Again, in relation to the previous item, the report, the paper prepared for the Australia conference was drafted with one eye on the future in terms of how to address incorporation by reference in any general legislation. A lot of work has been done already, and that paper makes a number of suggestions.
At this point, the first question is whether the committee wants to do something with this issue and reply to the minister and, if it does, how does it want to proceed to that end.
The Joint Chair (Mr. Kania): When I saw this letter on Monday of this week, because of the October 16 deadline, I contacted Mr. Bernhardt and asked him to let them know not to assume we will not do something because they have not yet heard from us. The issue is on the table. The question is, what do we wish to do.
Mr. Hoback: Are you ready for the written comments, then? We can send comments and proceed that way, if the committee were to request that approach?
Mr. Bernhardt: If members are comfortable with that approach, we can prepare something quickly based on material we have, and present that information to the committee at the next meeting or the meeting after.
Mr. Hoback: You have already made the contact with the department so they know something is coming. I think that is the way to proceed.
Mr. Bernhardt: That Australian paper is available; it is on the Internet through the Australian Parliament website.
Mr. Lee: I want to ensure the department has the benefit of "that" paper as opposed to "this" paper. I think they should have that paper immediately. It would be strange if they had not seen it yet. Can counsel informally ensure the department has the benefit of that paper; it is on the Internet.
Counsel, is there any part of the committee's views on this issue that you, in your informal and formal exchanges, believe the department does not understand?
Mr. Bernhardt: Based on past practice and pure speculation, it is likely to be said that legislation permitting incorporation by reference in all cases codifies the present state of the law and provides certainty. I am not sure that situation is acceptable to the committee, based on Report No. 80 and the position the committee has always taken. I do not know how amenable they are to influence from this direction in terms of formulating what provisions are in the bill.
Mr. Lee: I do not think there can be more than one person in the department driving the bus on drafting this legislation. There are probably only 10 people who understand what the legislation is all about.
Can I ask counsel to make a real effort to find out who that person is? Then, in preparing whatever we submit, we can ensure that it focuses on those areas that might have the least take-up over at the Department of Justice Canada. After that, as each of us wishes, we can speak to the minister as the legislation rolls ahead.
The Joint Chair (Senator Wallace): A number of us are new around this table, or relatively new, and the subject is important. My personal knowledge about the issue is somewhat limited. I wonder if we can go in one of two ways. First, will it be helpful if Mr. Bernhardt gives us a briefing on the subject at the next meeting? We can ask questions and give input. Following that meeting, the letter can be prepared. Alternatively, Mr. Bernhardt can prepare the draft letter and then we can have that discussion.
Again, I speak for myself. I am dragging a bit on the issue and it is an important one. Rather than simply drafting the paper and sending it out, I want to know what the subject is. We can go either of those two ways, if committee members thought one was appropriate.
Mr. Hoback: Will that approach slow down what we are trying to do? If October 16 was the deadline, will we look like we are dragging our feet? I think it is a great idea to have that type of information. However, I am curious if it will seem as though we are taking a month to work through our process, and whether we are benefiting ourselves on this particular issue.
The Joint Chair (Mr. Kania): Can we send the paper from Australia now and then have Mr. Bernhardt draft a letter to the department saying that something further will be sent? Then we can work on that response and, perhaps, discuss it next meeting.
Mr. Bernhardt: We can take that approach. I suppose what arises, then, is a possibility that the committee's final response will be simply: We agree with everything in the paper and have nothing to add. It might be better to put something together in a draft form, put it in front of the committee and then have the discussion that Senator Wallace referred to. We can either proceed or make whatever changes the committee feels are appropriate, and go from there.
Bear in mind that the only reason this bill has been proposed is because of the committee's report and the committee's position. If the committee says it needs a few more weeks, I do not think there will be a great difficulty from the minister's end in granting that time, in terms of a delay. He has committed himself, in a sense, only to keeping this committee happy and, if the committee is happy by going a little slower, so be it.
The Joint Chair (Mr. Kania): Are there any other comments?
Can we write to them now advising that we will make submissions and we will require time to prepare them? Then we can table this item for the next meeting and discuss it with the draft proposal.
Hon. Members: Agreed.
SOR/2000-221 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS
(For full text of documents, see Appendix B, p. 10B:1)
Mr. Bernhardt: As members well know, the committee has concluded that the provisions in these regulations that establish an automatic rate increase, through a formula based on the increase in the consumer price index for the previous year, are ultra vires. The application of this formula has been suspended for the current year. As the regulations now stand, the formula will be applied again as of January 10.
Due to this situation, the committee gave notice back in March of its intent to proceed with a disallowance report.
In response to that notice, the minister requested that the committee defer the report, pending the government's consideration of the report from the Canada Post Corporation's Strategic Review Advisory Board. The committee agreed to defer the report, but the committee also advised the minister that the file would be brought back to the committee today and it was expected that significant progress would be made by now.
To date, there is no reply from the minister. However, on June 27, proposed amendments were pre-published in the Canada Gazette and these amendments will revoke the formula provisions as of January 11 and replace them with fixed rates. A copy of those proposals is in the materials for this morning. Most recently, I was told earlier this week by Canada Post that it was expected the amendments would be made today.
If that turns out to be the case, the file can be closed and the committee has resolved a significant issue.
Senator Moore: Should we wait and see if the amendments are made, and close the file next week?
Mr. Bernhardt: We ought to ensure that the heads-up turns out to be accurate, of course.
The Joint Chair (Mr. Kania): Diarize it for a month and see what happens. Hopefully, the amendments will be made sooner, but diarize it so we do not forget about it.
Senator Moore: Why diarize it for a month? Are we meeting next week?
The Joint Chair (Mr. Kania): We have a meeting in two weeks.
Senator Moore: Why do we not put it on the agenda then?
The Joint Chair (Mr. Kania): It will be approximately three weeks before amendments are published.
Mr. Bernhardt: Assuming that the amendments are made, we can bring back the amendments, then, to the committee when they have been published with a note to the committee that the amendments fix this problem. We can approach the item that way.
Mr. Lee: Chair, since the file will conclude successfully, I want to thank counsel for his work on it —there may be more than one counsel involved — and acknowledge that the minister and Canada Post have responded well to the committee's suggestions; the matter has concluded well.
Congratulations should be given. Some of these files can drag on for a long time and, initially, Canada Post was resistant to our position.
Mr. Bernhardt: I believe the regulatory impact analysis statement, which will go with the amendments, recognizes the influence of the committee in making this change.
SOR/2007-23 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS
(For full text of documents, see Appendix C, p. 10C:1)
Mr. Bernhardt: Chair, this instrument was made to correct an error concerning the previous amendment to the tariff. That error was that it was not approved by the Governor-in-Council as required by the Pilotage Act. Initially, the Department of Transport advised that the Laurentian Pilotage Authority would reimburse the excess amounts collected. Later, however, the authority reported that its board had made a final decision not to reimburse, that "all the information relevant to the mandate of the Committee" had been furnished and the authority considered "the matter closed."
The decision to do nothing was based on an opinion from the Office of the Auditor General that the fee increases had been validly fixed. The committee obtained a copy of the opinion but it gave no grounds for the conclusion; it simply stated this conclusion. Counsel contacted the Office of the Auditor General to obtain reasons.
The September 30 letter from the Auditor General suggested it was considered that the original regulations approving the tariff legally set the tariff, even if the tariff approved was not the tariff set by the Laurentian Pilotage Authority. As the note explains, this response shows some confusion between adoption and approval of the tariff.
The Governor-in-Council cannot pass her own tariff, or modify a tariff. She has authority only to approve or refuse to approve what has been made by the authority. The Auditor General also states that a regulation must be presumed valid until it is struck down by the courts. Whether a court has ruled on the question of validity and whether this committee has come to a conclusion on the point are two different things.
It is interesting that the Auditor General also concluded that it would be reasonable nevertheless to repay the difference between the intended rate and the collected rate.
We have a situation where the committee and, apparently, the Department of Transport are of the view that the tariff increase was not collected legally. The Auditor General, although she concluded differently, was of the view that reimbursement would be reasonable.
The fact that shipowners, at least according to the authority, did not want to be bothered with any of this matter may indicate that the amounts in question are relatively small. On the other hand, presumably, the Auditor General would not have described reimbursement as reasonable if the amounts were insignificant.
What we still do not have from the authority, and which the committee has requested, are the figures — the amounts involved here — and, perhaps, that information should be asked for again so that the committee is fully apprised of the situation before it makes a determination as to where things move next. The authority might also be advised that, at least at this point, the committee does not consider the issue to be closed yet.
Mr. Lee: In my view, counsel is being excessively polite and deferential. The Auditor General is not the problem. The authority is. In my view, the Laurentian Pilotage Authority does not understanding the issue we are dealing with here. This committee is not stupid when it comes to fees. I do not have to cite examples. At the least, in view of the illegality that we have determined — and I think we have determined the fees are illegal; counsel has advised such and I believe members have accepted that advice — we are not going to court on this matter and they are not. The fees were improperly enacted and the fee collection was illegal.
I think, at the least, we expect the Laurentian Pilotage Authority to write to each payer of the fee and indicate the fee was improperly collected for technical reasons; however they wish to describe it. If the payer does not want to collect the fee back, that is fine. In my view, nothing moves up and down the St. Lawrence River that does not have a four- or five-digit dollar fee attached to it.
I do not think the authority will listen, either, if we send them another letter. We will look at another six-month lag in reply. I suggest we move this item up the totem pole to the top. If we do not receive an immediate response, where the authority acquiesces in the view of the committee and offers the reimbursement, then the authority will have to come before the committee and we will begin the process we do not want to embark on.
However, in my view, they must submit to, and acknowledge, the illegality; they must undertake a process that offers reimbursement and, if they do not undertake that process, they are offside and must face the committee. That is what I suggest to colleagues here today.
However counsel wants to convey that information politely to them is okay with me. However, I am ready to move on this item immediately if they are not.
Mr. Saxton: I am inclined to take a different tack. First, the Office of the Auditor General has already stated that the fees were validly fixed. If I was a member of the Laurentian Pilotage Authority, I would take the Auditor General at her word and not question it. I think it is perfectly normal that the authority has accepted what the Auditor General has said, and has acted accordingly.
I think moving the item up the totem pole, as my honourable colleague suggested, is not the action we should take at this time. Perhaps we need to find out what amounts are involved. If the amounts are small, then that may influence our decision as well as what we do next.
Mr. Masse: The issue is not only the question of amounts. Another reason shipowners probably do not want that money back is that they have to go back to the authority on a regular basis. Shipowners will not be the ones to pursue vigorously the reimbursement because they are in the position where they must conduct business regularly with an authority. You know what the result of dealing with any authority is, in many cases.
The reality is that the authority took money it is not entitled to, and I think it is our job to have the money returned. It is up to someone else to decide whether shipowners want it back. We must do our job to make sure that when a quasi-government organization overcharges people — and it is determined as an overcharge — then we return that money to those individuals.
Mr. Saxton: My understanding is that, in some cases, they were undercharged. Does that mean the authority will go back and collect fees from those who did not pay them, as well?
Mr. Masse: We are not dealing with that issue.
The Joint Chair (Senator Wallace): The issue seems to be between our opinion and that of the Auditor General. The Laurentian Pilotage Authority is on the sideline here, to a large extent. How do you suggest we resolve that difference, or must we resolve that difference, perhaps, before we think about progressing further? As long as we are faced with the Auditor General's opinion on that issue, or the authority is, does that situation bring the item to standstill, to some extent?
Mr. Lee: I do not believe the Auditor General has expressed a legal opinion on the validity of that tariff increase. The Auditor General said it is valid unless it is not. I cannot believe that the Auditor General would want to stare down the committee on a question of legality.
The Auditor General is wrong about the validity of this fee, but I do not think we should spend a lot of time on that matter. It is not her job to give legal opinions on the validity of things of this nature. However, if she wished to seek one from legal counsel skilled in this area, she is welcome to do it.
If the Laurentian Pilotage Authority is standing on what they say is a legal opinion of the Auditor General, they are on shaky ground, in my view. I am sure the Auditor General will end up agreeing with the committee. She has attempted to explain in her correspondence with the authority why the office is of the view that the fees were charged legally.
I do not think we should say it is a question of our opinion and the Auditor General's opinion. Only one opinion governs here. We are in this committee, not in a boardroom at the Auditor General's office.
The question becomes one of members being uncertain about the legality. If there are colleagues who believe these fees were legally enacted, please belly up here and we can discuss that view. If members are agreed the fees were illegally collected, then we should move ahead.
The Joint Chair (Mr. Kania): We dealt with this issue on an agricultural file already. I cannot remember the name of the item, but I was discussing it with Mr. Bernhardt. We already came to the conclusion on that file that we require repayments.
If we have a divergent opinion, we need to have a rationale for why we are doing something different between that file and this file. Otherwise, we need to be consistent.
Senator Moore: Is the Department of Transport the body that puts the Laurentian Pilotage Authority in place? The Department of Transport is the ultimate department.
The second paragraph of the report says the department confirmed that there had been an error, and informed the committee that the Laurentian Pilotage Authority intended to reimburse the excess amounts collected, and to rectify any irregularities. That department is the key department; not the Auditor General. What the authority did was wrong, and it should be righted.
Mr. Bernhardt: In fact, SOR/2007-23 was put in place so that the authority collected the right amount. When this regulation was made, it was expressly stated that the authority had to make this regulation to correct the error.
The committee said, fine, now you have the right amount in place; but what about all the wrong amounts you collected before this correction?
There was acknowledgment by the department. The department comes in here, of course, because although these tariffs are set by the authority, they are not enforceable until they are approved by Governor-in-Council, which involves the Department of Transport. The department de facto looks after that approval process and takes it to cabinet.
Clearly, the department recognized the problem here and at least was under the impression at one point that the authority recognized it as well. I think what happened then was that the authority decided to ask the Auditor General; it received the opinion from the Auditor General and that is what the authority is running with.
Senator Moore: However, they did not receive much of an opinion, from what I read here.
Mr. Bernhardt: No.
Senator Moore: I think that is probably by design because the Auditor General knows that is not the bailiwick of her office. The Department of Transport has indicated that a mistake has been made and the authority will fix it.
Mr. Bernhardt: Despite the conclusion on the legal aspect, I think it is of some relevance that the Auditor General concluded that regardless, it would be "reasonable" to pay back the money.
Mr. Saxton: What are our options?
The Joint Chair (Mr. Kania): Sorry, did you have another comment, Mr. Lee?
Mr. Lee: I was going to the same place Mr. Saxton was heading, which is to lay out some options here. I think we should write back immediately and ask for clarification of the amounts involved, with particulars; ask for a prompt reply; and indicate to them if the matter is not resolved consistent with the views of the committee, the committee will consider calling witnesses.
Mr. Saxton: I have no problem with that approach. I think writing a letter is the right way to go.
The Joint Chair (Mr. Kania): All agreed?
Hon. Members: Agreed.
SOR/2002-301 — INTERPROVINCIAL MOVEMENT OF HAZARDOUS WASTE REGULATIONS
(For text of document, see Appendix D, p. 10D:1)
Mr. Bernhardt: The committee has objected to provisions that require the keeping of certain records. It has always been the view of the committee that the obligation to keep and retain documents imposes a substantive duty on a citizen and as such, must be authorized either expressly or by necessary implication.
The enabling authority that is relied on here, which is section 191 of the Canadian Environmental Protection Act, 1999, does not, in the committee's opinion, authorize the imposition of such requirements.
The department has not accepted the committee's view. However, in 2006, the department advised that the committee's concern would be addressed when amendments were made following a forthcoming review of the regulations. By March of 2008, however, the department was stating that only the need for greater clarity would be considered in the course of the current review of the act.
The joint chairmen, in their most recent letter to the minister, asked why the amendment sought by the committee to authorize regulations expressly requiring the keeping of records was not included in Bill C-16, and the letter made the suggestion that the provision be added to that bill.
The minister replied that the amendment was beyond the scope of Bill C-16. The minister also restated that the department has a different view from the committee, but that the need for any amendment will be considered if Part 7 of the act is to be amended in the future.
As one means of moving the file along, perhaps we can ask the minister whether any amendments to Part 7 of the act are contemplated at this time. It is clear that they do not accept the position of the committee.
Mr. Lee: Counsel said that the minister does not accept the position of the committee with respect to the need for an amendment. Is that right?
Mr. Bernhardt: Yes.
Mr. Lee: I thought they had made an error and forgot, or did not want to put the amendment in the bill.
Mr. Bernhardt: The most recent letter said that if they are amending that part of the act sometime in the future, they will consider whether to add that amendment; but that they do not agree with the committee that the amendment is necessary.
Mr. Lee: If they do not agree with us, depending on members, we cannot close our file and the matter persists.
I regret that the minister's letter would pretend that when this bill was drafted, the amendment we proposed was beyond the scope of the bill. That is nonsense. The phrase "beyond the scope of this Bill" relates to a bill that is proceeding through Parliament.
Once the bill is there, it is beyond the scope of the bill. It is rather disingenuous to make reference to that phrase, in my view, in this letter.
However, we have a file that will not close. Counsel's suggestion is to go back to the department, play their game and ask them when they will make the amendment.
Mr. Bernhardt: If only for greater clarity.
Mr. Lee: Agreed.
The Joint Chair (Mr. Kania): Are there any other comments? We will send another letter.
SOR/2008-97 — ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
(For text of document, see Appendix E, p. 10E:1)
Shawn Abel, Counsel to the Committee: In the course of reviewing these regulations, it was noted that the Canada Shipping Act, 2001 identifies subsection 20(7) of the act as a provision for which the contravention is an offence. This provision does not exist. It seems likely the intended reference is subsection 20(2).
The department indicates it is aware of this issue and plans to correct the reference when the act is next amended.
These regulations, however, designate provisions under which the contravention is an offence. Such designated provisions may be enforced administratively then as a violation incurring a fine, rather than by way of prosecution for an offence.
Item 4 of the schedule of the regulations designates subsection 20(2) of the act as a violation. However, as the act currently stands, because of the error in reference, the contravention of that subsection is not an offence. This error means it cannot be designated as a violation.
Perhaps the department should be asked whether persons are, or have been, fined under item 4 of the schedule. It may be helpful also to ask when exactly it is expected that the act will be amended to correct this error.
Mr. Shory: I agree with counsel. I read the previous letters. They identified the error and the department had plans to rectify the error, but the department does not seem to have done so. I guess we should write them another letter to ask for a specific time line.
The Joint Chair (Mr. Kania): Are there any other comments?
Mr. Lee: In making a suggestion, counsel did not refer to the possibility that we should ask them not to rely on item 4 in the schedule when they are doing their prosecutions. In addition to asking them if they have used item 4, we should ask them to undertake not to rely on it in the future until the corrections have been made by statute.
The Joint Chair (Mr. Kania): Are there any other comments? Agreed?
Hon. Members: Agreed.
SOR/2000-111 — CANADIAN AVIATION SECURITY REGULATIONS
SOR/2002-188 — REGULATIONS AMENDING THE CANADIAN AVIATION SECURITY REGULATIONS
SOR/2004-16 — REGULATIONS AMENDING THE CANADIAN AVIATION SECURITY REGULATIONS
SOR/2006-340 —REGULATIONS AMENDING THE CANADIAN AVIATION SECURITY REGULATIONS
(For text of document, see Appendix F, p. 10F:1)
Mr. Abel: Regarding SOR/2000-111, following the committee's last consideration of this file, counsel wrote again to the department on 5 of the 21 points. An amendment is promised in relation to the first issue in point 11.
The second issue under point 11 deals with a limitation under the regulations. An aerodrome operator may request a deactivation of a worker's restricted area identity card only for reasons set out in the regulations. The minister's power to make the same request is subject to no such restriction, and the committee had considered that any such power should be subject to consistent limitations to ensure that the airport worker's rights are not unduly dependent on administrative discretion.
The latest reply merely agrees with the committee's suggestion that the ministerial abuse of this power seems unlikely, but this reason is not a valid one to avoid adding the same procedural safeguard already in place with respect to aerodrome operators. However, no other reason is given not to do so.
In connection with points 14 and 18, the committee sought specific explanations as to the nature and scope of the vague requirements found in section 47.2 and section 52.2 (3)(b) of the regulations. The reply in both cases merely states that the rules are performance-based and consistent with the cabinet directive on streamlining regulations.
Under point 16, the committee noted that the explanation of the term "confined area" provided by the department seems to exclude almost no area that would be found within an airport, including the entire airport, which seems contrary to the intent of the provision. The latest reply states that the concept of a confined area must be flexible to accommodate temporary measures such as construction. Nonetheless, the duty to keep persons within a confined area under surveillance is mandatory. How is an aerodrome operator to know with certainty whether this applies in a given instance? It seems that some specificity is required in delineating what is considered to be "confined area."
Finally, point 19 concerned the intended difference between the terms "threat" and "specific threat," which are explained in confidential guidelines provided to air carriers. The committee sought explanations as to the difference between the terms, why the basis for that difference is considered confidential, and whether all persons specifically governed by the relevant provisions receive these confidential guidelines. Copies of the guidelines were also sought. The reply fails to provide any of the requested information, except to state that the guidelines are confidential because they can be used to interfere unlawfully with civil aviation, and that the department currently is reviewing the confidentiality of aviation security measures.
In summary, given the lack of useful information in this latest reply, perhaps a letter to the minister should be considered. A letter to the department in any case can be drafted to seek a progress report on the previously promised amendments.
Ms. Cadman: We should write to determine where Transport Canada is on this item, whether the promised amendments will be included, and what the time frame is.
The Joint Chair (Mr. Kania): Are there any other comments?
Mr. Lee: I am speaking only for the purpose of possibly pre-empting a conflict down the road, with respect to point 19. If counsel thinks that we must see these definitions, then we are asking for disclosure at some level of confidential or classified information. If we ask for that disclosure, it will be useful in advance to be certain that we need to see the material before we try to break down the door. If we pursue this matter, I want counsel to explain with precision to the regulation maker why it is necessary to see the full definition or components. If there is a need, then we will go ahead and ask for disclosure. I do not want to ask unless counsel thinks there is a material need.
Mr. Bernhardt: I suppose, Mr. Lee, when we raised the point initially there were two concerns: First, the regulations talk about two different things — a "threat" and a "specific threat." There is no indication in the regulations as to how one can differentiate between the two, so we simply asked. That was when we found out the differentiation was in these guidelines. Naturally, we asked whether everyone who has to obey these guidelines has a copy of them. We also asked for a copy. The guidelines seem to be distributed on a need-to-know basis as determined by Transport Canada.
Mr. Lee: On the contrary, the need to know is to be determined by this committee. We need your advice: Do you need to know? If you do not need to know, then we will let the department maintain its confidentiality. If we do need to know, then we will deal with it in that way.
Mr. Bernhardt: If they can explain the difference without providing the text and if that explanation makes sense and the committee is convinced that everyone who needs to know that difference is informed of that difference, then that information might satisfy.
Mr. Lee: I am happy with that approach if counsel wants to take it.
Ms. Cadman: Should we write to the department and have it laid out specifically?
Mr. Bernhardt: Yes.
Ms. Cadman: Let us write a letter first and find out.
The Joint Chair (Mr. Kania): Are members agreed?
Hon. Members: Agreed.
SOR/2003-393 —REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
(For text of document, see Appendix G, p. 10G:1)
Mr. Bernhardt: The question of possible discrepancies between the English and French versions of three provisions were raised. The department has provided a lengthy memorandum from the Department of Justice that goes into some detail to explain why there are no discrepancies. The focus of this document seems to be on establishing that the French is properly drafted. I suggest that is not really the point.
For instance, on the first one, which is section 26.1(2)(d)(i), it is argued that it is redundant to require in French that the conditions for entitlement to benefits be fully met. I suggest it is as redundant in English; either something is met or it is not met. Either the word "fully" adds something or it does not. If it does, then the two versions are discrepant. If it does not, then the English version is redundant and should be corrected. Either way is fine.
Similarly, in connection with section 41.1(a), the fact that the English version refers to a claimant directly providing care to a family member while the French version refers only to providing care is said to make no difference, but it only reflects the uniqueness of the two languages. Once again, either the word "directly" in English adds something or it does not. If it does not, it should be taken out. If it does, then an equivalent term in the French version is required.
Similarly, we have arguments concerning whether the word "appropriate" adds anything to the term "appropriate government authority" and the difference, if any, between "similar" and "substantially similar."
One statement that should take exception to is the claim in the final paragraph of the memorandum that there is extensive discretion not to use consistent terms throughout a regulation because the French language is constantly evolving, and it is desirable "to improve its language and readability." We are dealing with legislation, not a novel. There is a presumption in law that different terms in the same legislation are intended to have different meanings.
Second, I suggest that all languages are constantly evolving. The fact this is so gives no more discretion to a French drafter than it does to an English drafter.
In conclusion, I suggest making the case again that if there are no discrepancies, then they must conclude that there are redundancies in the English version that should be taken out. If those words are not redundant in English, then the two versions must be discrepant. They cannot have it both ways.
Mr. Galipeau: For all the respect that I have for Mr. Thompson, I do not understand why there is so much resistance. I completely concur with counsel's assessment. I must say that I was amused. Anything I might say will either repeat what counsel has said or would not be said as eloquently as he said it.
Mr. Lee: Mr. Chair, that comment comes from our resident francophone linguist. If he likes it, it must be good.
Mr. Bernhardt: I will add that it is an easy fix. These are the Employment Insurance Regulations, which are amended regularly. It is a matter of putting these changes in the next amendment package. At the end of the day, we would have a slightly improved regulation.
Mr. Galipeau: All the committee is asking for is some clarification and I fail to understand why such a reasonable request is being refused. The committee, a joint committee of Parliament, is not merely being capricious. We have asked officials to clarify matters and there is no justification for their failure to comply with our request.
The Joint Chair (Mr. Kania): Shall we write back with a strong, eloquent letter?
Mr. Bernhardt: We will try again.
SOR/98-429 — MACKENZIE VALLEY LAND USE REGULATIONS
(For text of document, see Appendix H, p. 10H:1)
Mr. Bernhardt: Thirty-two matters were raised with respect to these regulations. Following the committee's initial consideration, 11 were pursued further in counsel's April 17, 2008, letter.
The reply from the department included a chart that outlined the response on all 32 concerns, including those on which there had already been agreement. At this point, it seems only two remain to be resolved. These are points 19 and 22.
On point 19, the committee was advised that consultations were under way with stakeholders on the question of whether 15 days following the receipt of an application is a reasonable period of time, as the act requires, to allow for representations before issuing a Type B permit. At this point, I think it is simply a matter of asking what the outcome of those consultations was.
Point 22 concerns section 34(2) of the regulations. This section requires that before making an enforcement order, an inspector must obtain the concurrence of the National Energy Board. Nothing in the act, however, authorizes a regulation making the exercise of an inspector's statutory power subject to NEB approval.
The department replied that because of the board's expertise, it is not unreasonable to require its approval before an inspector acts. The question is not what is reasonable, but whether there is any authority to make a regulation that requires this approval. It would seem there is not.
Initially, there was a willingness to change the approval requirement to a consultation requirement. However, this is apparently no longer to case.
I suggest these two matters be pursued in a further letter to the department. At the same time, we can take the opportunity to ask for a progress report on the other 30 amendments.
The Joint Chair (Mr. Kania): Agreed?
Hon. Members: Agreed.
SOR/99-122— FARM IMPROVEMENT AND MARKETING COOPERATIVES LOANS AND FEES REGULATIONS, 1998
(For text of document, see Appendix I, p. 10I:1)
Mr. Abel: Of the 17 concerns raised in respect of these regulations, the department has promised amendments to address all except point 4, to which it is suggested that a satisfactory reply is provided.
Of note, five provisions identified as ultra vires are promised to be amended or to be addressed by statutory amendment, one of which has long been considered unauthorized by the committee, dating back to the old version of the regulations.
The promised amendments will also limit or remove some ministerial discretions, address a gap in the regulatory scheme noted by the committee in relation to the old regulations and correct some drafting errors.
Also in relation to point 17, as the note before members today indicates, a portion of the regulation-making authority found in section 15(1)(g) of the act appears unnecessary in light of the powers granted to the minister under section 19(2) of the act.
The department notes that section 15(1)(g) has never been used, and the department did not attempt to rely on it justifying the regulatory passage it has promised to remove under point 17. Despite this fact, the department prefers to leave the passage in place.
Even though the reply has not indicated of what use this provision possibly can be, it can be open to members to decide not to attempt further to change the department's mind as nothing is likely to come of this issue. In any case, a letter can be drafted seeking an update on the promised amendments.
The Joint Chair (Mr. Kania): Is it agreed?
Hon. Members: Agreed.
SOR/2007-86 — REGULATIONS FOR THE PREVENTION OF POLLUTION FROM SHIPS AND FOR DANGEROUS CHEMICALS
(For text of document, see Appendix J, p. 10J:1)
Mr. Abel: As the note accompanying this file indicates, 61 points were raised concerning these regulations, and amendments were promised to resolve at least 52 of these concerns. Most of the promised amendments are clarifications, corrections of drafting and language equivalency errors and deletions of necessary provisions.
I draw members' attention, however, to points 10 and 47, where provisions identified in part or whole as ultra vires are promised to be removed; point 13, where ministerial discretion and subjective language will be removed; and point 27, where an ultra vires provision will be validly re-enacted under the new Canada Shipping Act, 2001. Although the latest reply indicated that prepublication of all the promised amendments were projected for mid-2009, that prepublication has not happened to date.
It is suggested that satisfactory replies were received to points 45 and 61. I will address the remaining points individually, which are detailed in the note before members today.
The first point concerns numerous references to the pollution convention, which is not defined in the new Canada Shipping Act, under which these regulations are continued. Although the department promises to add and define the term MARPOL, an acronym for the pollution convention, in the new act, it should also be confirmed that these references in the regulations will be changed to match the new acronym.
Point 12 concerns the requirement to comply with portions of the pollution convention, if they are in effect. Portions of this treaty will come into effect only in certain geographical areas once certain conditions monitored by the International Maritime Organization are met. This organization will notify Canada when this coming into effect occurs, and will provide notices on its website.
Nonetheless, given that compliance with these provisions is mandatory once they come into effect, it seems the regulations, in some manner, should specify when these provisions must be obeyed, perhaps by including a schedule that may be easily amended. In addition, an amendment on this point is promised to replace an incorrect term in section 9(b).
In connection with points 29 and 30, it was noted that the regulations were unclear as to which certificate a supervisor of a transfer operation is required to hold. Although amendments were promised to identify the certificates, it should be suggested as well for greater clarity that the amended provisions expressly reference the marine personnel regulations by which the certificates are governed.
Point 35 concerns the use of "may" in several provisions granting the minister discretionary power to refuse to allow the continued use of specified oil tankers, notwithstanding that they may meet the conditions set out in the regulations for such continued use. The reply indicates no reason why the minister should not be required to allow the tankers to continue to be used if they meet the conditions.
The department suggests that the wording mirrors the pollution convention, which states that the administration — in this case, meaning government — may allow the continued operation of tankers if the conditions are met. This wording clearly refers to the prerogative of the contracting government to put in place any allowances at all, not to how the government should frame the procedural granting of those allowances.
In any case, there is no requirement that domestic legislation strictly adhere to the wording of the treaty that implements it. This discretionary power serves no purpose in this case and it would seem that it should be removed.
Counsel also suggested under this point that unnecessary subjective wording be removed from three provisions, but no answer was received in that regard.
In connection with point 50, following the identification of a referencing error, the department intends to remove the reference entirely from section 88. Further details should be sought, however, as to the exact proposed amendment, since the bare removal of the cross-reference will result in the section being unclear as to where the communications' requirements referred to in that section may be found.
In connection with point 57, section 142(1) provides an exemption to the prohibition of the discharge of cargo residues in the case of "small quantities," a term that seems vague.
The department explains that the wording in the provision mirrors the pollution convention, except to the extent that the reference to small quantities was put in because the department felt that it was not appropriate that the discharge of unlimited amounts of cargo residue should be permitted, which the convention happens to allow.
The problem, however, is that a person governed by the regulations cannot be certain as to whether a discharge is within the permitted limits. It seems that the term "small quantities" should be clearly defined.
Finally, point 60 dealt with the requirement that all crew members comply with the ship's garbage management plan. Since the plan would be crafted by a third party and must be obeyed on pain of penal sanction, the requirement effectively creates a new offence.
The joint committee has always considered that the creation of offences by way of subordinate legislation must be clearly authorized by the enabling statute. In this case, authorization appears to be found under section 351(d) of the new Shipping Act. This provision expressly authorizes the Governor-in-Council to make recommendations implementing the pollution convention. As the department suggests, it is pointless to require a ship to carry a garbage management plan if the crew is not required to follow it.
Presumably, Parliament was aware of the content of the pollution convention when it authorized the making of regulations implementing that convention. It follows that Parliament intended that the regulations could be made requiring a ship's crew to obey a garbage management plan. It remains unclear, however, as to who is actually responsible for creating the plan and ensuring that it is implemented. It should be suggested that these matters be set out expressly in the regulations.
In conclusion, if members agree with the foregoing, a letter pursuing these points and seeking an update on the promised amendments can be drafted.
The Joint Chair (Mr. Kania): Are there comments?
Mr. Lee: I am exhausted. I congratulate Mr. Abel on a thorough job. I am in agreement with the suggestion of counsel.
The Joint Chair (Mr. Kania): Are members agreed?
Hon. Members: Agreed.
SOR/2007-171 — REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS
(For text of document, see Appendix K, p. 10K:1)
Mr. Abel: It was noted under this file that section 31.1(4) of the regulations appears to suggest erroneously that the minister enjoys the power to amend the regulations. The department agrees and promises to amend the provision following the mandated review of another related provision, if that other provision is determined to require an amendment.
As the review was required to be completed in July 2009, a letter can be drafted seeking an update and perhaps also seeking confirmation that section 31.1(4) will be amended independently if the related provision is determined not to require a change.
The Joint Chair (Mr. Kania): Are there comments? Are members agreed?
Hon. Members: Agreed.
SOR/2008-104 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE MOTOR VEHICLE SAFETY ACT (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix L, p. 10L:1)
Mr. Abel: Following the committee's last consideration of this instrument, an assurance was sought and received from the department that no person has been prosecuted as a result of applying a national safety mark at a place other than as indicated on any of the forms set out in the relevant schedules; and also that no person will be so prosecuted in the absence of clear statutory authority permitting the restriction of the application of such a mark to any specific location.
In addition, the department's letter indicates that the previously promised amendments are expected to be completed in part in 2009 and in 2010. If the committee is satisfied with the reply, counsel can continue to monitor progress on those amendments.
Hon. Members: Agreed.
SOR/2006-354 — MUSQUASH ESTUARY MARINE PROTECTED AREA REGULATIONS
(For text of document, see Appendix M, p. 10M:1)
SOR/2007-123 — 19TH MEETING OF THE PARTIES TO THE MONTREAL PROTOCOL PRIVILEGES AND IMMUNITIES ORDER
(For text of document, see Appendix N, p. 10N:1)
SOR/2008-231 — LIGHTERS REGULATIONS
(For text of document, see Appendix O, p. 10O:1)
SOR/2008-239 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS
(For text of document, see Appendix P, p. 10P:1)
SOR/2008-274 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1437 - MAXIMUM RESIDUE LIMITS FOR VETERINARY DRUGS)
(For text of document, see Appendix Q, p. 10Q:1)
Mr. Bernhardt: Under Action Promised, a total of seven amendments were promised in connection with these five instruments. Of course, we will follow up after the meeting on their progress.
I note that in addition, nine concerns raised by the committee were resolved by the instruments registered as SOR/ 2008-231 and 2008/239.
SOR/2009-66 — REGULATIONS AMENDING THE MARINE MAMMAL REGULATIONS
(For text of document, see Appendix R, p. 10R:1)
SOR/2009-101 — REGULATIONS AMENDING THE PEST CONTROL PRODUCTS SALES INFORMATION REPORTING REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix S, p. 10S:1)
SOR/2009-103 — ORDER AMENDING THE DIRECTION TO THE CRTC (INELIGIBILITY TO HOLD BROADCASTING LICENCES) (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix T, p. 10T:1)
SOR/2009-165 — REGULATIONS AMENDING THE CONSUMER CHEMICALS AND CONTAINERS REGULATIONS, 2001
(For text of document, see Appendix U, p. 10U:1)
SOR/2009-179 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE HAZARDOUS PRODUCTS ACT (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix V, p. 10V:1)
SOR/2009-191 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON THE SUPPRESSION OF TERRORISM (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix W, p. 10W:1)
Mr. Bernhardt: Under Action Taken, six instruments represent 30 amendments that were requested by the committee.
SOR/2006-229 — INTEREST RATES (EXCISE ACT, 2001) REGULATIONS
SOR/2007-254 — REGULATIONS AMENDING THE PACIFIC PILOTAGE TARIFF REGULATIONS
SOR/2008-216 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS
SOR/2008-280 — REGULATIONS AMENDING THE PACIFIC FISHERY REGULATIONS, 1993
SOR/2008-283 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS
SOR/2008-286 — ORDER AMENDING THE GENERAL IMPORT PERMIT NO. 1 — DAIRY PRODUCTS FOR PERSONAL USE
SOR/2008-287 — ORDER AMENDING THE GENERAL IMPORT PERMIT NO. 100 — ELIGIBLE AGRICULTURAL GOODS
SOR/2008-288 — ORDER AMENDING THE ALLOCATION METHOD ORDER (BEEF AND VEAL)
SOR/2008-290 — ORDER 2008-87-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2008-291 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2008-292 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(B)) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2008-1
SOR/2008-295 — ORDER 2008-87-08-02 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2008-296 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2008-297 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2008-308 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (VISA EXEMPTION REQUIREMENTS FOR LITHUANIA AND POLAND)
SOR/2008-316 — ORDER REPEALING THE MINISTERS DESIGNATION ORDER (CANADA CORPORATIONS ACT)
SOR/2008-317 — ORDER REPEALING CERTAIN ORDERS MADE UNDER THE CANADA BUSINESS CORPORATIONS ACT
SOR/2008-319 — NOVA SCOTIA AND NEWFOUNDLAND AND LABRADOR ADDITIONAL FISCAL EQUALIZATION OFFSET PAYMENTS REGULATIONS
SOR/2008-324 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A ONE DOLLAR CIRCULATION COIN
SOR/2008-325 — REGULATIONS AMENDING THE CERTAIN RUMINANTS AND THEIR PRODUCTS IMPORTATION PROHIBITION REGULATIONS, NO. 2
SOR/2009-1 — ORDER 2008-66-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2009-2 — ORDER 2008-87-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2009-3 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES RDER
SOR/2009-4 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2009-6 — ORDER AMENDING THE ONTARIO HOG CHARGES (INTERPROVINCIAL AND EXPORT) ORDER
SOR/2009-7 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS
SOR/2009-8 — REGULATIONS AMENDING THE CANADIAN HATCHING EGG PRODUCERS QUOTA REGULATIONS
SOR/2009-9 —ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER
SOR/2009-11 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2009-13 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS
SOR/2009-14 — PROCLAMATION DESIGNATING THE REPUBLIC OF CROATIA AS A DESIGNATED STATE FOR PURPOSES OF THE VISITING FORCES ACT
SOR/2009-15 — REGULATIONS ADDING PERFLUOROOCTANE SULFONATE AND ITS SALTS TO THE VIRTUAL ELIMINATION LIST
SOR/2009-16 — REGULATIONS AMENDING THE MANITOBA SEX OFFENDER INFORMATION REGISTRATION REGULATIONS
SOR/2009-19 — REGULATIONS AMENDING THE DAIRY PRODUCTS MARKETING REGULATIONS
SOR/2009-24 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (EXTENSION OF MOST-FAVOURED-NATION TARIFF TO LIBYA)
SOR/2009-25 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT
SOR/2009-27 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS
Mr. Bernhardt: Under "Statutory Instruments Without Comment," 37 instruments have been reviewed and found to comply with all of the committee's criteria.
The Joint Chair (Mr. Kania): Are there comments or questions?
Seeing none, we shall adjourn. The next meeting of the committee will be in two weeks.
(The committee adjourned.)