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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 3 - Evidence, March 26, 2009

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OTTAWA, Thursday, March 26, 2009

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:32 a.m. for the review of statutory instruments.

Mr. Andrew Kania (Joint Chair) in the chair.

[English]

The Joint Chair (Mr. Kania): Good morning. The first item for consideration is the budget amount of $2,145, for which the Senate requires approval. Do I have a mover?

Senator Bryden: I so move.

The Joint Chair (Mr. Kania): All in favour? Opposed? Carried.

I have a brief update for members on the Australia trip. Yesterday, I received a further proposed budget, which is still in excess of $100,000. I have asked for more work to be done on it. My hope is that it can be referred to the subcommittee next week so that we can report back next Thursday prior to the Easter break. I was concerned when I saw the numbers used in the budget. Are there questions?

Mr. Saxton: I notice that a number of committees travel on full fare economy class.

The Joint Chair (Mr. Kania): There were proposals using points — economy and business — but the amount still seemed high to me. I have asked them to deal with a different travel agent because I would like to know the lowest amount available for the various options before we present to the committee.

Mr. Saxton: Good.

The Joint Chair (Mr. Kania): Item No. 1 on our agenda is Report No. 82 dealing with the Indian Act.

REPORT NO. 82 — INDIAN ACT (FOURTH REPORT OF THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS)

Peter Bernhardt, General Counsel to the Committee: Report No. 82 was tabled in the House of Commons on May 26, 2008, and in the Senate on June 4, 2008. The story begins back in 1987 when the standing joint committee made nine recommendations in respect of the exercise of lawmaking powers by Indian band councils. All of these recommendations were accepted by the government at the time, and a number of them have been implemented.

There have been several unsuccessful attempts to implement the remaining recommendations. These are: that the Indian Act be amended to guarantee the right to notice of delegated legislation and access to it by those affected; and that in respect of band bylaws, there can be no conviction for a breach of the bylaws unless steps have been taken to bring them to the attention of those affected.

While accepting that there are significant challenges to developing a modern framework for First Nations, the committee's fourth report expressed disappointment that these remaining recommendations have yet to be implemented. It asked the government to confirm that any new framework will address the remaining concerns raised by the committee. It urged the government to act upon its undertaking to implement the recommendations as soon as possible.

The committee requested that the government table a comprehensive response to its report in the House of Commons. However, the dissolution of the previous Parliament absolved the government of its obligation to do so.

If the committee wishes to have the government's response, it has a couple of options: retable the report and request the response in this Parliament; or, alternatively, ask the minister if he would be willing to provide the response requested in the fourth report of the committee, notwithstanding that there is no formal requirement that he do so.

Mr. Saxton: I suggest that the committee retable the report.

The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next item deals with the Broadcasting Licence Fee Regulations.

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

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

Mr. Bernhardt: The Broadcasting Act authorizes the CRTC to make regulations establishing schedules of fees to be paid by licensees. Pursuant to this authority, these regulations establish Part I license fees and Part II license fees. Part I fees recover the total costs incurred by the CRTC and other federal departments and agencies with respect to the broadcasting industry. Part II fees are calculated as a percentage of each licensee's gross revenue from broadcasting activities.

During the period from April 1, 1997, to the end of the 2004-05, the CRTC received approximately $182 million in Part I fees and $680 million in Part II fees. Of the $680 million collected in Part II fees, about $77 million represented the cost to Industry Canada of managing the broadcasting spectrum, leaving a total of $603 million in general revenues that went into the Consolidated Revenue Fund.

In 2003, the committee first reported that these Part II fees could be vulnerable to legal challenge because they appear to possess many of the characteristics of a tax. Legal challenges were brought in Federal Court seeking a declaration that section 11 of the Broadcasting Licence Fee Regulations is ultra vires. The main issue in this action is whether the licence fees imposed under Part II constitute a tax or simply a regulatory charge.

The various applicable legal principles concerning the distinction between a fee and a tax and the relevant jurisprudence, as well as an analysis of the trial and Federal Court of Appeal decisions, are set out in considerable detail in the note that members have before them this morning.

As many members are aware, the authority to impose a tax is rarely delegated by Parliament. The courts have held that there is a presumption against the delegation of such an authority. In other words, if Parliament wishes to delegate authority to impose a tax, it has to do so in express and unequivocal language. Where the power to impose a fee is exercised in a manner such that the resulting charge is more in the nature of a tax, the fee is then ultra vires, or illegal.

At trial, the Federal Court declared section 11 of the regulations ultra vires the Broadcasting Act and the Part II fees imposed under section 11 as being invalid. The Federal Court of Appeal then reversed the decision. The note toward the end highlights some of the potential flaws in the Court of Appeal's reasoning.

Leave to appeal was granted by the Supreme Court of Canada in December 2008. A tentative date for hearing is this October, although with various interlocutory and preliminary motions that may be extended.

The question for the committee is how it wishes to proceed at this time. One possibility would be to wait for the decision of the Supreme Court and then the file could be brought back. In addition to a decision in the case, the court might add clarity to an increasingly complex area: the distinction between a fee and a tax.

Mr. Saxton: I would suggest we await the Supreme Court decision, then.

The Joint Chair (Mr. Kania): Speaking as a lawyer, that is exactly what I was thinking. I think that is logical.

Mr. Lee: I do not agree with that position. Colleagues, this file is like three or four others we have had over the history of the committee whereby there is manifest in it the envelope that Parliament does versus the envelope that the courts might do under our Constitution.

To put it bluntly, taxation is our business; it is not the business of the courts. The courts interpret the laws made by Parliament. I was somewhat pleased by the decision of the court of first instance, which saw the law the way the committee did, give or take some elements.

However, I was quite struck by what I would call the casual nature with which the Federal Court of Appeal dealt with these issues. I was particularly struck by the very casual analysis of the principles related to fee-for-service or fee- for-privilege. In fact, the Court of Appeal was heading into dangerous waters by not noting the distinctions or the similarities. As a result of that decision, I think there is a bit of a mess, and the only place we can straighten that out is here, in Parliament.

I described that Court of Appeal decision with all due respect to the judges who sit there. Part of what they do is a function of what the presenting lawyers do. It is possible that the presentations to that court fell short of the standard that I think we would want as a committee on behalf of Parliament.

I am looking for a way to signal that. Should we report this matter again to the houses? Should we go ahead with a disallowance? I am not even sure we could with this one. Is a disallowance available to us?

With regard to future steps, I think we should ensure that the views on taxation expressed by this committee — which I think fairly represent the perspective of Parliament constitutionally — must be placed before the court. If they are going to draw a line between fee-for-service and fee-for-privilege, then let it be done using the principles that Parliament uses and has always used.

I do not see in the Federal Court of Appeal judgment strict adherence, even any adherence, to those principles. I think the court, for whatever reason, handled it quite sloppily.

Therefore, I return to the principle that taxation is our business. We should do what we can to ensure that our perspective governs. If someone wants to change the law, it is not the court; it is Parliament and the government if they wish to introduce legislation.

We have to take steps either to report back to Parliament, articulating the same principles so they will be publicly available, or create a brief that can be put to the court. The latter has not happened very often. Parliament actually does not go to court because we have our own forum here.

However, the principles we have adhered to in our analysis should have a higher profile if this matter goes before the Supreme Court. I am really uncomfortable with just saying, ``Let us allow the courts to solve this issue.'' They did not create the problem; it is for us to solve. We should be articulating the principles and ensuring that they are properly placed before the court.

Counsel, is there any mechanism to ensure that a brief setting out our position on behalf of Parliament could be made available to the parties and the courts?

Mr. Bernhardt: As with any parliamentary committee, the committee makes its views known by reporting back to the houses, and that is always a vehicle available to the committee. The committee has reported on these regulations before. It could certainly do so again. From a practical point of view, whether that serves to draw the issue to the attention of those outside Parliament all depends on how closely they are watching what occurs in Parliament.

It is fairly clear that a parliamentary committee, as such, has no formal standing to intervene in a court proceeding. Parliament, as a body, intervenes through other methods: either through the Speaker or through members individually. Having said that, the option is always open to a parliamentary committee to report to the houses on anything within its mandate, whenever it wishes.

Mr. Lee: If the court screws up, we will lose our compass; we will lose some of our principles. We will not know where we stand on these issues in terms of principles and how we supervise taxation of the citizens. That will be our problem if they do not do it right.

Mr. Bernhardt: There is the potential that the Supreme Court's reasoning in some aspects, or in all aspects, is at odds with the position the committee wishes to take. In that case, I suppose the committee's redress, for lack of a better word, would be to report its differing view to the houses.

Mr. Lee: From our point of view, the Federal Court erred not in this case but 15 or 20 years ago on the Kemano Exemption Order. Fortunately, the decision they made ended up labelling as moot the problem we had identified. In other words, it did not have to be dealt with.

I was very dissatisfied with the Federal Court of Appeal 15 years ago, and I think they have made the same errors this time. I hate to stay silent as this matter moves off to the Supreme Court, though I am more confident about their analysis. I just want to ensure that our perspective is clear.

Could we resubmit our report on this issue in this Parliament?

Mr. Bernhardt: It is open to the committee to make a new report. The committee has not reported since after the trial decision but before the Court of Appeal decision. That was the last report.

Mr. Lee: It is not like we do not care. It is not like it is a dead issue.

Mr. Bernhardt: That was the timing of the last one. I suppose the purpose of a further report at this time would be to give an update since the last report. The Court of Appeal has reversed the trial decision. Basically, it would be along the lines of what is in the note.

Mr. Lee: Unless I can be really creative as a solo MP out there, the course of action at this point is to move that we introduce the same or the equivalent report to the houses now; reintroduce it, update it as necessary and make it a report. That way, I can run around town with it as a fresh statement. I would move that we do that and then wait for the courts to make a decision.

Mr. Szabo: My reaction was along the same lines as Mr. Lee. In lay facts, the government has, over a period of time, charged eight times more for a service or for a right than costs incurred. It is not insignificant. One aspect of the matter is that usurious charges are being made and passed on from the CRTC to those who subscribe to the service or the rights.

The courts will only look conceptually at what constitutes a tax versus a fee, and that is a very dry argument. However, Parliament, in the legislation, never contemplated imposing a tax. Now the courts have said that it is not a tax.

The other issue is that the fees being charged are way beyond cost recovery, which was basically their intent.

I would like to know more from the government's perspective about the rules of the game that will be followed with regard to charging fees through regulations, not only in this legislation but any legislation. How do we operate and at what point in time is there a breach of responsibility in terms of charging usurious fees?

It could be argued in Parliament very simply that these fees are inappropriate and that the Consolidated Revenue Fund had $600 million for that period alone — up to 2004-05, I believe — to which it was not entitled. In how many other pieces of legislation could this be the case?

If we let this issue go, if we do not fight the principle now, then governments can do whatever they want through the back door, through regulation, to effectively impose taxes because the courts say they are not taxes. That is a terrible precedent to set.

I would like to know more about how we monitor the prescribed fees pursuant to regulations and how we ensure that the rights of the parties with whom we are transacting in this regard, or representing, are properly protected. In this case, government has a stick that it can use and there is no recourse. You have to pay the fees or you do not get the rights.

I would like to know more from the government's perspective. The courts may very well make decisions theoretically on what they consider to be a tax versus a fee. The question for parliamentarians will be what is right and what are the guidelines and directions for governments so that no one can come back and say, ``Yes, we have direct taxes, but you have piled on inappropriate hidden taxes.''

Senator Bryden: I do not think there is anything wrong with retabling or tabling this document so that the world will believe we have not forgotten about it. That will not consume a great deal of our time. I do not know that doing so will bring forward what Mr. Szabo is talking about.

We need to realize that it will be used as a complete answer, if not an excuse, of dealing with this matter by saying it is before the Supreme Court of Canada. Why not wait and find out what the courts have decided and then do this? It is a wonderful shield for the bureaucrats and the ministers to just shelve the issue.

I agree with Mr. Lee to this extent; if we are concerned that they will just say we have given up on it, they cannot say that if we retable the report. Then Mr. Lee can take it to bed with him, and it will keep him company.

I do not think it does us any harm. Tabling a report perhaps keeps the matter in the forefront. However, many of us are lawyers, and we need to understand that the ministers and bureaucrats will grab that shield right away and nothing will happen until the Supreme Court of Canada has done its thing.

[Translation]

Senator Hervieux-Payette: I was away from the committee for a while attending to other duties, but I did serve on this body for at least ten years. The issue before us today was also addressed by a Liberal government. Therefore, it is not a matter of political ideology.

It is important, I feel, to remember that several Canadian regulatory agencies engage in this practice, whether it be in the field of pharmaceutics or other, that is charging a certain amount to order and conduct studies. However, in the end, the amount charged never represents the cost of the service provided. Moreover, this practice is widespread.

The principle that we are defending here today applies to a great many agencies and billions of dollars are charged to different industries that are taxed indirectly because they are part of the general corporate taxation system. Because they operate in specialized fields, they pay indirect taxes.

I agree with Senator Bryden on this point. By retabling the report, the current government would be saying that its findings are the same as those of the previous government that produced the report.

Even though bureaucrats have discovered all kinds of tricks and ministers find it quite convenient to recover additional sums of money, even though this is a very good cause, I do not think we should go about doing indirectly something that we cannot do directly.

This is the principle that emerges from all of this and regardless of which political party is in power, I think it is important nonetheless to respect the integrity of the tax system. In this particular case, I believe it would be preferable to proceed, to look at the costs and to anticipate a small cushion, since the exact cost of administrating licenses cannot be calculated at the start of the year.

Since the fees appear to be so out of whack, I will agree with Senator Bryden who is suggesting that we retable the report. I will be happy to table it in the Senate for the very simple reason that the principle must be upheld. I am certain that Mr. Lee and counsel for the parties before the court will be able to look upon this report as a 2009 report. So then, from here on in, I think we should leave it in the hands of our eminent Supreme Court judges and decide at a later date how governments should proceed in future, because this does not just affect CRTC issues.

In a number of government organizations, the process of evaluating fees for service is a biased exercise. I think parliamentarians have a duty to get to the bottom of things. That is my view.

[English]

The Joint Chair (Mr. Kania): Is there more discussion?

Based on what we have heard, my proposal would be to table the report in both the House of Commons and the Senate with a view to the Supreme Court possibly considering it during the appeal. Is there agreement?

Hon. Members: Agreed.

Mr. Bernhardt: We will draft a report and bring it back to the committee.

The Joint Chair (Mr. Kania): The next item on our agenda is Report No. 80.

REPORT NO. 80 — INCORPORATION BY REFERENCE (GOVERNMENT RESPONSE)

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

Mr. Bernhardt: This report was tabled in December 2007. In it, the committee explained its longstanding position that absent a clear ground of authority, either expressly or by necessary implication in the enabling statute, the incorporation by reference of external material in regulations is proper only where a fixed text is incorporated, as opposed to a text as amended from time to time.

For new members, this view is rooted in the rule against subdelegation, which reflects the principle that a person to whom a power to legislate has been delegated may not redelegate that power to someone else unless clearly authorized to do so. It has always been the view of the committee that the incorporation by reference of external material into a regulation as that material is amended from time to time amounts to a subdelegation of the regulation-making power because it will be the body amending the incorporated material and not the person on whom the power to make the regulations has been conferred who will actually determine the content of the regulation.

The subsidiary problem for the committee is that open incorporation can also give rise to issues concerning access to the law; that is to say, finding these incorporated documents.

The government response to the report was succinctly summarized in the covering letter from the Minister of Justice, which stated:

The Government does not share the view of the Committee and is confident in its legal position on the issue of ambulatory —

— or open —

— incorporation by reference in regulations. However, the Government acknowledges that there is some level of uncertainty in the case law and indicates that it will consider whether legislation is an appropriate vehicle through which to bring certainty to this area.

The committee found little in the government's response that added to the arguments previously advanced and dealt with in the committee's report. This conclusion was communicated to the minister in a letter from the joint chairmen dated June 25, 2008, which also provided a detailed explanation of the committee's reasons.

The government indicated that it would consider the possibility of introducing legislation to clarify how open incorporation by reference should be used in regulations.

In his August 26 reply, the Minister of Justice further advised that given that the government and the committee seem to have ``reached an impasse,'' a legislative solution is being explored. This would be in the form of a bill setting out the applicable rules for incorporation by reference in federal legislation generally. Perhaps at this time an update could be sought from the minister as to where this initiative stands.

The minister also indicated that he would welcome input from the joint committee on what form any legislation on incorporation by reference might take. There were some general indications in this regard in the committee's report, but the committee expressly refrained at that time from expressing views as to what extent this technique would be appropriately authorized on a general basis. At some time, the committee will need to decide whether it wishes to study that in more detail or to wait and respond to what the government brings forward.

The Joint Chair (Mr. Kania): Are there comments?

Mr. Lee: I thought the August 26 letter from the minister was succinct and addressed the issue directly. He was correct in saying that we do not agree, but it has been a while since we have read a minister's letter that truly hit the nail on the head. It was refreshing and helpful.

I will point out two things for the record that are relevant to the minister's request. First, in the August 26 letter, the second paragraph states that a subdelegation mechanism does not in and of itself confer any new power. It states that ``no new powers are being conferred on the author'' of the allegedly subdelegated instrument.

While it is true that subdelegation does not confer, it allows the taking of the power. The minister is talking about a one-way street. The subdelegation does not confer but it absolutely enables the taking of the power, and his letter does not deal with that. The party whose standards will be incorporated has, by nature of that incorporation by reference, the ability to take the power or to do it by changing what they do within the incorporation by reference. The minister does not deal with that, which is an omission.

My second point is that most if not all of the cases relied on by the government are interdelegation cases. Interdelegation, by its nature in Canada, relies in part on the unity of the Crown and the Canadian constitutional envelope, which provide a kind of a comfort zone. There is a delegation from unity Queen I to unity Queen II. It is all upfront, whereas in the non-interdelegation scenarios, any agency or person would be allowed to create a new regulation simply by changing what they do.

Counsel may wish to comment.

Mr. Bernhardt: You have touched on the two nubs of the dispute between the government and the committee. Their reasoning extrapolates from constitutional cases, and the committee takes the position that it is an apples and oranges argument. You are quite correct on the first point.

As far as the Department of Justice is concerned, when you incorporate a CSA standard, you are not delegating any power because the CSA can make that standard anyway. However, the department is losing sight of the fact that when you incorporate a CSA standard, you are giving the CSA the power to determine the content of the regulation. The CSA could not do that if you did not incorporate their document as amended from time to time.

Those are the two sides of that argument.

Mr. Lee: We are not advertently giving it to them; rather, we are allowing them to take it and use it.

Mr. Bernhardt: Yes.

The Joint Chair (Mr. Kania): In its August 28, 2008, letter, the government said that they would have broad consultation on the matter and would welcome any comments or suggestions from the committee. Therefore, the committee could follow up to know what they have done, what they will do and advise that the committee wishes to be part of it and will make a submission. I ask for comments of members on that today. Should we have counsel start on a submission?

Mr. Lee: Some kind of dialogue would be helpful provided we have the resources. If this thing goes full tilt, which it could do depending on the approach of the Department of Justice, it could rewrite a large percentage of how we do regulations. We could start letting other bodies fill in the blanks.

Mr. Bernhardt: One can imagine the Department of Justice putting forward a bill that would allow for open incorporation by reference in every instance and entrench it in law. Certainly it would solve the problem. The committee would need to decide on a response to such a bill and whether it wishes to be proactive by examining those issues at this time to determine what should be in a bill, what is acceptable and not acceptable, as well as the various options.

Mr. Lee: We do not want to let AIG make the new rules because we prefer to make them ourselves.

The Joint Chair (Mr. Kania): Are there any further comments? Is everyone in agreement the approach that we will seek an update, but we will also let them know that we will be putting a position forward at some point?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next agenda item is SOR/2002-60.

[Translation]

SOR/2002-60 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

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

Jacques Rousseau, Legal Counsel for the Committee: The point raised in the correspondence exchanged with the minister relates to the requirement to notify the Department of Transport. In the opinion of the committee, such a requirement cannot be regulated unless clear authorization to that effect is given. In this particular instance, pursuant to section 400.07 of the Regulations, a holder of a permit or license is required to notify the department of any change in their permanent address within seven days of the change. The committee is of the view that there is nothing in the Aeronautics Act authorizing the Governor in Council to make regulations to that effect.

In a letter dated December 12, 2007, the joint chairs detailed the reasons why the committee disagrees with the department and believes the Aeronautics Act does not authorize the adoption of section 400.07 of the Regulations. The minister responded in a letter dated July 14, 2008, taking up the same legal argument made by the department whereby the introductory words of section 49 of the Act, which state that the Governor in Council may make regulations respecting aeronautics, in combination with section 4.9(a), provide authority for section 400.7 of the Regulations. The minister's letter fails to address in detail the arguments put forward in the joint chairs' letter against the department's position. The minister brings nothing new to the department's position, which has already been rejected by the committee.

Counsel recommends that the committee write to the minister to obtain a detailed response. If the committee is amenable to this, in their next letter, the joint chairs could put forward a new argument, one that is also based on the legislative context of the Aeronautics Act.

Section 4.71(1) of the Act is as broad an enabling provision as the one found at the beginning of section 4.9 of the Act. It stipulates that the Governor in Council may make regulations respecting aviation security. However, pursuant to section 4.71(2)(o) of the Act, the Governor in Council may make regulations respecting the provision to the minister of aviation security related information. This shows that Parliament felt it was necessary to specifically delegate authority of this nature, even though it has also delegated the authority to regulate aviation security, which at first glance may seem like a very broad power.

Mr. Chairman, counsel therefore recommends that the committee write back to the minister seeking a more detailed response.

[English]

The Joint Chair (Mr. Kania): Are there any comments?

Mr. Lee: I actually ended up taking a position quite different from that of counsel after I had gone through it a couple of times. I am inclined to accept the department's interpretation. I will put it to counsel in this way: The term ``licensing,'' which was perceived by our counsel in the beginning to involve the act of a granting of a licence — almost like a singular act of granting a licence — was used right beside the word ``accreditation.'' Therefore, there is an aura of approval of a person to receive a licence — you accredit, you approve and then you license.

However, I would suggest that it is not unreasonable to interpret the term ``licensing'' as involving a broader administration of licensing, such as the application, the issuance, the maintenance, the renewal and the suspension of a licence. Maybe the department did this, but I did not see it fully flowered. I do not see why it is unreasonable to require an evergreen residential address or commercial address as part of the maintenance of that whole licensing regime. I do not just mean the act of giving out the first licence, but the whole range from birth to death.

It is not reasonable to say that maintaining an evergreen residential address, a telephone number, a postal code or the body weight of the pilot is unreasonable or that Parliament never intended that information to be there: ``You gain your licence and you are forever freed of the burden of keeping your address evergreen.''

That is the way I am beginning to interpret this file. If I were to go the distance on it, I would say we will help the department re-characterize it a little bit so that we will understand how to deal with this in the future, and then close the file and say thank you. How would counsel respond?

Mr. Bernhardt: In the abstract, I would not generally disagree with anything you are saying. The distinguishing feature is that we have an enabling power that talks about the keeping and preservation of records and information. In other provisions that deal with other things in the same act, there are regulation-making powers that talk about the keeping and preservation of records and the submission of information, which gives rise to the following question: Why did Parliament deal with submitting information in other cases when they did not in this case?

A second issue is suggested in the last paragraph of the letter from the chairmen that there is a way to do this. As you said, it is part of a licensing scheme; you simply make it a term of the licence that you provide change of address. If you do not do it, you can lose your licence. The difference, as we know from the fisheries regulations, is that if you do not do it, you could not be convicted of an offence and fined if it is a condition of the licence. You would simply be in danger of having your licence cancelled or suspended.

In the abstract, generally, I would not take issue with anything Mr. Lee is saying. The counter-arguments are particular to this context.

[Translation]

Mr. Rousseau: The legislative context of the Aeronautics Act is rather special, which led us to the conclusion that the power, at first glance quite broad, to make regulations respecting aviation might extend as far as the department claims it does, in the absence of other very specific provisions. However, given the rather unique context of the Aeronautics Act, it is hard to see why Parliament would have been so specific or felt the need to be so specific in certain instances, when elsewhere this power is conferred by virtue of a very general provision.

As the General Counsel noted, the committee suggested that this information could be obtained by imposing licensing conditions. The minister acknowledged that this was indeed possible, but that he had merely opted for another approach. However, the general consensus is that imposing licensing conditions would be one way of obtaining this information.

[English]

The Joint Chair (Mr. Kania): Are there other comments?

I will add that I formed the same conclusion as Mr. Lee when I read this file: I believe this is acceptable. We should writing back to say something to that effect and we should close it. Does anyone take a contrary position?

Mr. Saxton: I agree with that.

The Joint Chair (Mr. Kania): Are all agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next three items appear under the heading Reply Unsatisfactory.

[Translation]

SOR/97-6 —FEEDS REGULATIONS, 1983, AMENDMENT

SOR/97-9 — SEEDS REGULATIONS, AMENDMENT

SOR/2001-274 — REGULATIONS AMENDING THE SEEDS REGULATIONS

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

Mr. Rousseau: Mr. Chairman, the problem identified in the case of these two files, namely SOR/97-6 and SOR/2001- 274, is of a similar nature. The note on SOR/97-6 applies to all three files.

The Canadian Food Inspection Agency has taken the view that provisions in the Feeds Regulations, 1983 putting a place a scheme whereby new feeds may not be released into the environment unless an authorization has been obtained from the Minister of Agriculture and Agri-Food, are authorized by paragraph 5(m) of the Feeds Act as regulations for the purposes and provisions of the act.

According to the Agency, this is because these provisions relate to the main purpose of the act, which is considered to be the protection of animal and human health from risks posed by animal feed or a substance included in animal feed.

When the committee examined SOR/97-6, it took the position that this states the purpose of the Act too broadly. In its view, that purpose could more properly be characterized as being to protect animal or human health by regulating the manufacture, sale or import of feeds.

Moreover, section 3(3) of the act prohibit the manufacture, sale and import of feeds, other than in accordance with the regulations. Neither of these activities involves the release of feeds into the environment. The note drafted for the committee explains in detail why the release into the environment of feed and the manufacture, sale or import of feeds are two separate matters and why, as such, there is no legal authority to require pre-approval of the release of feed into the environment.

The regulations also purportedly extend to the release into the environment of a livestock product produced from a feed and the exposure of a feed or livestock product produced from the feed to the environment. This is intended to encompass eggs, meat, milk, other animal parts and even manure.

The agency argues that the power to do this flows from the fact that these products could enter the animal or human feed chain and that consequently, their release into the environment may be regulated under the Feeds Act.

Such a position would lead us to the conclusion that the release into the environment of anything that may be ingested by humans or animals may be regulated under the Feeds Act.

The Parliament of Canada has adopted the Canadian Environmental Protection Act, 1999, for the purpose of protecting the environment. As stated in the Regulatory Impact Analysis Statement accompanying SOR/97-6, this act was not the government's preferred option because Environment Canada lacked expertise and experience in the regulation of agricultural products.

Unfortunately, such concerns are simply irrelevant to the question of whether the provisions in question are lawful. If the Feeds Act does not provide authority for regulating the release of novel feeds into the environment, this is not altered by the fact that it is the Canadian Food Inspection Agency that administers that act.

If it has been determined that the release into the environment of novel feeds should be regulated under the Feeds Act, then that statute must be amended to provide for such regulation.

None of the enabling authorities presently in the act permits the prohibition or regulation of the release of feeds separate and apart from their manufacture, sale or import.

The next step would probably be to write to the minister to ask him to reconsider this matter and to suggest to him that, if the Canadian Food Inspection Agency must continue to control the release of feed, he agree to press for Parliament to amend the Feeds Act.

[English]

The Joint Chair (Mr. Kania): Do members agree with the recommendations?

Mr. Lee: I agree with counsel. I would like to find a way out of it, but I cannot.

It is pretty clear that the phrase ``manufacture, sale or import'' does not cover all the possible ranges of activities that could happen with feeds. The complicating factor is that many feeds contain seeds, not to mention a range of chemicals and additives.

Therefore, I asked myself, does the act prohibit the transport? It does not. Does the act prohibit a human eating it? No, it does not. The phrase ``manufacture, sale or import'' does not even prohibit an animal eating it. Can you give it away? Yes. Can you dispose of it? Yes.

There is a whole range of activities unaffected by the statute and the adoption of this regulation. The regulation says that you cannot release it into the environment, which just about stops everything, including giving it away, disposing of it, et cetera.

I agree with counsel that I do not see the legislative basis for the regulation, and I think it is ultra vires. Counsel's suggestion is a good one, and I will endorse it.

The Joint Chair (Mr. Kania): The recommendation would be to write to the minister advising that we are not satisfied with the February 14, 2008, letter from the Canadian Food Inspection Agency and then ask for a review. Is it agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Next on the agenda, also under Reply Unsatisfactory, are the Fish Inspection Regulations.

SOR/98-2 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/99-169 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/2002-435 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

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

Mr. Bernhardt: The committee raised concerns in connection with 50 provisions of these regulations. A number of amendments were promised. There are other matters that remain unresolved.

At its core, the problem is that the regulations put in place a scheme that is not supported by the parent act. For example, the regulations attempt to institute a detailed licensing regime for fish processing establishments when all the act provides for is simply registering these establishments. There are numerous provisions that impose record-keeping requirements and information-submission requirements, none of which have any clear legislative authority.

In a previous Parliament, I think it was the Thirty-eighth Parliament, Bill C-27 would have remedied the problem. Unfortunately, this bill failed to pass and a decision was made not to reintroduce it.

A partial remedy would have been provided in the last Parliament, through Bill C-52, but this also did not pass.

In a July 31, 2007 letter, the minister indicated that new regulations were being developed under the existing act that were intended to respect the committee's concerns. Given the nature of the committee's concerns, it was difficult to see how this could be done. Therefore, further details were sought.

In addition, there were a number of specific points in respect of which the first reply from the Canadian Food Inspection Agency was found by the committee to be unsatisfactory. However, further dealing with these was held in abeyance in the hope that Bill C-27 would pass. When that did not happen, the matters were followed up in counsel's May 1, 2007 letter.

Further particulars on any of these matters in that May 1, 2007 letter have not been forthcoming. In February, the Canadian Food Inspection Agency merely advised it was continuing to explore opportunities to amend the act, and some unspecified amendments to the regulations would be made in a forthcoming miscellaneous amendments order. The substance of these particular matters was not addressed.

Given the inability to extract a detailed reply on the substance from the agency, perhaps the cooperation of the minister could be sought in ensuring that this detailed reply is furnished without further delay.

Senator Moore: I agree. Regarding your letter, dated May 1, 2007, did you not get a reply until March 3 of the following year? Actually, you wrote them again. Tell me about that.

Mr. Bernhardt: We wrote on May 1, 2007. Then in February 2008, the file went back to the committee. At this time, it was known that Bill C-27 had not passed. We did not follow up the May 1 letter because the bill was introduced, which would have solved the entire matter. When that did not happen, we went back to the committee on February 28, and the committee decided to write again to ask for a reply on these points that we never received. That was my letter of March 3, 2008.

Senator Moore: That is right.

Mr. Bernhardt: From that time forward, on a four-month basis, a series of letters went out to advise that we had not received a reply. Typically, we do not enclose those with the documentation before the committee because they are largely one-sentence letters.

Senator Moore: You sent a letter on March 3, 2008, and did not receive a response. You then sent additional letters requesting a response.

Mr. Bernhardt: I assume there were the usual follow-up letters in June and November. There were, I presume, two subsequent letters asking for the reply, which finally came on February 5, 2009. It took 11 months to receive a reply.

Senator Moore: I suggest that the committee give them 10 days. This is ridiculous. I remember this file being in front of the committee before. Someone mentioned the work of the committee being taken seriously. If we let this file slide and let the same rhythm continue, we are not doing our duty. We have to let them know that we are serious about this and that they must reply within 10 days or we will ask the minister to appear before the committee.

The Joint Chair (Mr. Kania): Are there additional comments?

Senator Dickson: I agree with Senator Moore that we should set a time frame.

The Joint Chair (Mr. Kania): Are there suggestions as to a time frame?

Senator Dickson: I suggest two weeks.

Mr. Saxton: I agree with 30 days.

Senator Dickson: That is too long. They have not moved the department to Newfoundland.

[Translation]

Ms. Gagnon: I think we need to be realistic. It has taken us 11 months to obtain a response and we are giving them 10 days. Perhaps we could give them one month, unless it is urgent. I think it is important to know why it took them so long, a full 11 months, to respond. It is unrealistic to allow them only 10 days.

We should give them one month and then let them know that any additional delays will be deemed unacceptable and that further action will be taken. However, let us give them at least one month to respond.

[English]

Senator Moore: This matter has dragged on because we did not indicate a time limit for receiving a reply. If it is to be 30 days, let us state it. How does that affect the meeting schedule of the committee?

Mr. Bernhardt: The committee meets next week and again on April 23, which is 28 days from today. The meeting after that would be May 7, which is 42 days later.

Senator Moore: I would rather have a 28-day scenario.

The Joint Chair (Mr. Kania): Put the date in rather than the number of days; perhaps the day before that meeting.

Mr. Bernhardt: We could say, ``the committee will reconsider the file at its meeting of . . . by which time it wishes to receive a response.''

The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next agenda item deals with the PCB Waste Export Regulations.

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

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

Mr. Bernhardt: The committee previously asked the Department of the Environment to proceed with amendments addressing its concerns independently of a broader review of the regulations that was ongoing. The department rather noncommittally replied that this request had been noted and its feasibility would be examined in relation to existing priorities and resources. Not surprisingly, committee members found this to be unsatisfactory, and a firm assurance was sought that the amendments previously promised will indeed be made, as well as the time by which the committee could expect these amendments to be completed.

Confirmation that the amendments would include those to sections 10(q) and 12(3) of the regulations was also requested.

Finally, an explanation was sought as to why no exports are taking place currently under these regulations, which the committee had been advised by the department was the case.

The explanations in the department's April 9, 2008, letter were, in short, that the U.S. has closed its borders to PCB imports and the regulations deal only with exports from Canada to the U.S.

As for the promised amendments, it is now stated that the entire regulations will be folded into the Export and Import of Hazardous Recyclable Materials Regulations, and that when this is done the committee's concerns will be taken into consideration.

Given that a commitment to address these matters was given previously, this could be seen to reflect a backing away from the department's previous commitments. If that is how members read the latest reply, perhaps the department could be asked again for a firm assurance that the matters will be resolved and a firm time frame for doing so. The initial forecast for this combining of the regulations was 2008, although that was not met.

The Joint Chair (Mr. Kania): Are there comments?

Mr. Lee: This file is really sliding around, so I want to tighten the leash. We need to know where they are on the merging of the regulations, which would address most of our problems. We need to hear more than ``taking into consideration'' as a response to what we put forward. Perhaps counsel would decide which items are 10 out of 10 and which are flexible.

We want a quick turnaround on the item. The letter of April 9 does not meet the standard. I do not know what turnaround time counsel would suggest, but I do not want any sliding. I do not want to see any swing time on this one. I want an answer quickly and a commitment to change the regulations and meet the deadlines.

Mr. Bernhardt: In fairness to the department, the issue is not so much the slowness in replying as it is the nature of the reply, which seems to be vague, for lack of a better word.

Mr. Lee: They either agree with us or they do not agree. If they agree with us, when will they do it?

Mr. Bernhardt: They have agreed in the past and have promised to do it, although we seem to be inching backward, bit by bit, away from that commitment.

Mr. Lee: Let us request a reply within 30 days.

Senator Moore: Agreed.

Mr. Lee: We will decide shortly thereafter what to do.

The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next matter is the Interprovincial Movement of Hazardous Waste Regulations.

[Translation]

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

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

Mr. Rousseau: With respect to this file, two concerns were raised. The focus of the correspondence exchanged since May 8, 2007 is mainly on subsection 4(7) of the Regulations, pursuant to which the consignor, each authorized carrier and the consignee shall keep at their principal place of business in Canada a copy of the manifest for a period of two years after the hazardous waste is received by the consignee.

In the opinion of the committee, there is nothing in section 191 of the Canadian Environmental Protection Act, 1999 that allows for the adoption of section 4(7) of the regulations.

In the view of the committee, the obligation to keep documents can be imposed only if Parliament has clearly given its authorization, either expressly or implicitly, which is not the case here.

The department announced in 2006 that new regulations would be adopted. The department said at the time that the new regulations would, and I quote:

. . . address the committee's concerns.

In their letter of May 8, 2007, committee counsel asked the department if this meant they were prepared to concede that subsection 4(7) was unlawful and to exclude this provision from the new regulations.

On March 17, 2008, the department replied that it was not intending to amend subsection 4(7) of the regulations and that in its view, paragraphs 191(e), (f) and (h) can be interpreted to confer these powers.

None of the provisions in the act provide express authorization to impose a requirement to keep documents. They authorize the Governor-in-Council to make regulations, and I quote:

. . . respecting information and documents to be provided to the Minister; respecting conditions governing the import, export, transit and movement within Canada of waste and material;

prescribing anything that by this Division is to be prescribed.

These provisions cannot be interpreted as authorizing the implicit adoption of subsection 4(7).

Furthermore, when it examined this file in 2005 and 2007, the committee noted that in the Canadian Environmental Protection Act, 1999, Parliament made explicit provision for delegating the authority to keep documents.

One can assume that if Parliament had intended to delegate this authority under section 191 of the act, it would have done so explicitly.

The rest of the department's letter outlines the reasons why it feels subsection 4(7) should be maintained. However, from a legal standpoint, none of the reasons cited justifies the adoption of this provision.

In its letter of May 8, 2007, committee counsel also requested confirmation that the drafting problems identified in section 3(1) of the regulations would be corrected in the new regulations. In its response, the department fails to address this concern.

The reason why this file is listed under ``Reply Unsatisfactory'' can be found in the next to last paragraph on page 2 of the department's letter of March 17, 2008, where the following is noted:

. . . Regardless of our present practices, the need for greater clarity in the matter of keeping documents, which you noted as you read the Regulations, will be considered in the course of the review that the CEAP (1999) is currently undergoing.

One might have hoped the department would take this opportunity to amend section 191 of the act to include the requirement to keep documents.

However, Bill C-16 which was given first reading on March 4, 2009 does not contain this particular amendment, although it does propose a series of amendments to the Canadian Environmental Protection Act, 1999.

Committee counsel recommends that a letter be written to the minister requesting confirmation of the decision not to seek from Parliament an amendment to section 191 of the act.

At the same time, counsel could also request confirmation once more about the status of section 3(1) of the regulations.

[English]

Mr. Lee: I detect a degree of insincerity here on this file. I think we moved backwards to ``square one'' on it. I do not like it at all. I am even more frustrated today because counsel mentioned first reading of Bill C-16 in the House of Commons. It was actually debated and adopted at second reading yesterday. It has now gone to committee.

The whole bill is about amending our statutes and regulatory regime for environmentally-sensitive things, waste and toxic materials. Therefore, I am shocked that this department seems to be on autopilot with respect to the matters we raise. It is not good enough to simply write letters back and forth.

If we do not receive a good response on file — something really cogent — then I would want to call witnesses from this department because I have some questions I would like to ask.

Mr. Masse: This is really serious because if an accident happens, first responders need information. If something happens and it goes to the courts and we have a problem, it will undermine the whole system.

I agree that this is extremely serious. Bill C-16 is before Parliament, and we should put the heat on the department to get an amendment right now. We could also receive a remedy from them or we could propose a remedy. We need to take them to task.

If there is a challenge in the interpretation of whether a company should or should not maintain the documents and if there is an accident with those chemicals and materials, that could be used in a case against first responders, the general public or even result in a private battle. It is completely irresponsible.

The Joint Chair (Mr. Kania): Are there other comments? Do I hear consensus for a strongly-worded letter to the minister requesting amendment to the bill.

Senator Moore: Yes.

Mr. Lee: Yes.

The Joint Chair (Mr. Kania): Also, is there consensus to put a 30-day deadline on a response?

Senator Moore: What is the timing?

The Joint Chair (Mr. Kania): I was thinking about that, as well. If we copy the Chair of the House of Commons Standing Committee on Environment and Sustainable Development, then it could be raised at that committee at the same time.

Senator Moore: What is the timing of a possible amendment in the House of Commons?

Mr. Masse: I do not know. It could be done in the Senate and come back to the house. There are a couple of avenues — we have to tag this right now, and I think we should demand it.

Senator Moore: It is pretty disingenuous. That is what the whole thing is about and then he does not do it.

Mr. Lee: We have to act fairly quickly because the bill received unanimous support in the house at second reading. It will go to committee, and if the committee acts immediately, it will probably go through committee very quickly. There does not appear to be much opposition. Therefore, we should act quickly to ensure that the members of the Environment Committee are possessed of our concerns.

Mr. Masse: Perhaps we can also request to be a delegation at the committee to present a witness and the problem.

Senator Moore: That is a good idea.

The Joint Chair (Mr. Kania): Let us include it in the letter to the chair. I would be happy to appear.

Next is SOR/2006-141.

[Translation]

SOR/2006-141 — ORDER 2006-87-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST

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

Mr. Rousseau: Mr. Chairman, this matter has to do with the identification of the authority pursuant to which certain substances have been removed from the Domestic Substances List.

Such authority has been conferred upon the minister under subsection 87(2) of the Canadian Environmental Protection Act, 1999 which is cited in the letter sent by committee counsel on February 1, 2008.

However, in its letter of April 24, 2008, the department notes that the deletions were made solely to correct errors and that as such, they were made under subsection 31(4) of the Interpretation Act, which stipulates that where a power is conferred to make regulations, that power shall be construed as including the power to amend, repeal or vary the regulations.

In the opinion of committee counsel, subsection 31(4) of the Interpretation Act does not apply in this case because Parliament has already conferred authority to delete substances from the list.

As such, the department's reply is deemed unsatisfactory. Even though there may be some disagreement over where the authority to delete substances derives from, no one is saying that such authority does not exist.

Perhaps it would be appropriate for the committee to write back to the department explaining why subsection 31(4) of the Interpretation Act does not apply in this case and suggesting that subsection 87(2) of the Canadian Environmental Protection Act, 1999 be clarified.

[English]

The Joint Chair (Mr. Kania): Are there any comments? Are all agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next series of SORs appear under the heading Part Action Promised. The first deals with the Plant Breeders' Rights Regulations.

SOR/91-594 — PLANT BREEDERS' RIGHTS REGULATIONS

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

Mr. Bernhardt: In response to counsel's letter, the Canadian Food Inspection Agency indicates that the matters mentioned in the first paragraph of that letter will be resolved by amendments to the Plant Breeders' Rights Act itself. No time frame is given, so perhaps it would be appropriate to ask for one.

The main issue concerns the establishment of certain time periods that will vary in each individual circumstance. The committee has concluded that this does not prescribe the relevant periods as the act requires. The agency continues to defend the validity of its approach, although it does indicate that all but two of the provisions in question are to be revoked in any event because they no longer serve any purpose.

There is a related matter which concerns item 40 of Schedule I. We had asked a question about whether all plant categories are prescribed there now. The implication from the other answers on the time period seems to indicate that is the case. That may not need to be pursued.

The two remaining provisions in dispute are sections 7(2)(a) and (b) of the regulations. These state that neither the breeder nor the breeder's representative can have sold or concurred in the sale of a variety for not more than six years before the date of an application. Even on the agency's own characterization, this does not allow the applicable period to be determined with certainty. It does not prescribe a period as the act mandates but simply states the maximum period. Therefore, I think that needs to be raised again with the department.

Finally, item 15 of Schedule II will be revoked. It provides for the provision of publications at cost. The committee considered there was some doubt as to whether such a provision was authorized.

In short, I would suggest a further letter to the agency, pursuing the unsatisfactory point and asking for a time frame for making the amendments to the act and the regulations.

The Joint Chair (Mr. Kania): All agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): We now move to SOR/2006-152.

[Translation]

SOR/2006-152 — REGULATIONS AMENDING THE ACCOUNTING FOR IMPORTED GOODS AND PAYMENT OF DUTIES REGULATIONS

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

Mr. Rousseau: Mr. Chairman, following the meeting of February 14, 2008, committee counsel wrote back to the Agency to seek clarification on two points that it felt were not addressed to their satisfaction in the initial response provided.

One of the issues raised was the French version of the Regulations and the Agency accepted the committee's suggestion. The second point related to the minister's discretionary authority to suspend or cancel a Customs Self- Assessment Authorization.

As it has done with respect to several other files, the committee suggested, in light of the agency's reply, that the regulations be amended to identify criteria that would capture every circumstance when the Minister should decide not to suspend or cancel a CSA authorization, that is to say — and I repeat — in light of the agency's reply, in cases where the breach is minor or was quickly rectified.

An example taken from the Seeds Regulations was even brought to the agency's attention. In its reply of April 16, 2008, the agency again rejected this suggestion, arguing that it would not be possible to identify all of the circumstances where the minister would choose not to suspend or cancel an authorization.

In the opinion of committee counsel, this replay was unsatisfactory. Are we to understand then that there are cases where the minister could decide not to suspend or cancel an authorization, even though the breach may have been major and may not have been corrected?

We assume that this would not happen, and for that reason, it should be possible, as we have noted elsewhere, to set out clearly in the regulations the criteria that will temper the exercise by the minister of his discretionary power.

If the committee agrees, counsel recommends sending another letter to the agency about this matter.

[English]

The Joint Chair (Mr. Kania): Comments? Agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next agenda item is SOR/2007-73.

[Translation]

SOR/2007-73 — ORDER AMENDING THE DIRECTION TO THE CRTC (INELIGIBILITY TO HOLD BROADCASTING LICENCES)

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

Mr. Rousseau: Mr. Chairman, on the matter of this file, committee counsel raised two concerns, the first having to do with the drafting — and the department promised to amend the Regulations — and the second pertaining to the requirement set out in subsection 26(3) of the Broadcasting Act to lay a copy of any order before Parliament within fifteen days of it being made.

This order had not been tabled in the House when counsel wrote to the department on September 25, 2007. As noted in the department's letter of February 21, 2008, the order was in fact tabled before Parliament on December 12, 2007.

Clearly, Mr. Chairman, had committee counsel not sent this letter, the order would not have been tabled before Parliament. Counsel recommends that another letter be sent to the department inquiring on the progress made on the promised amendment and seeking confirmation that steps have been taken to ensure compliance in future with the time frame set out by Parliament for the tabling of orders.

[English]

Mr. Lee: Could I ask counsel if is this the first recent instance of failure to table in the House, or does this still pop up from time to time?

Mr. Bernhardt: It does from time to time. I do not recall another one with this department. I think this is the first one with this department.

Mr. Lee: I wanted to put on the record, for reasons that counsel will recall, that failure to table these documents in the two houses has been found in the House of Commons to constitute a contempt. For the record, you just need an attentive member in opposition to note the potential contempt and it becomes a matter of contempt within minutes. The department should be aware of that.

The Joint Chair (Mr. Kania): Are there other comments?

It has been suggested that we write and point out the potential for contempt, but at this point in time it has been purged, so to speak. Do members agree with sending a letter respectfully pointing that out?

Hon. Members: Agreed.

Mr. Lee: If counsel has to continue to correspond with the department on this other matter, it is easy to add it.

Mr. Rousseau: We will remind the department that it is contempt.

Mr. Lee: Thank you.

The Joint Chair (Mr. Kania): The rest of the agenda items fall under the headings Reply Satisfactory, Reply Satisfactory (?), Action Promised or Action Taken. Counsel will take us through those briefly.

[Translation]

SOR/2008-27 — REGULATIONS AMENDING THE PRESENTATION OF PERSONS (2003) REGULATIONS

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

Mr. Rousseau: Mr. Chairman, very quickly, regarding item 6, ``Reply Satisfactory,'' this was a case where an enabling provision had not been cited in the recommendation, as is normally done.

The committee requested confirmation that in the future, all enabling provisions be cited, something that the department has agreed to do.

SOR/2003-28 — RULES OF PROCEDURE FOR BOARDS OF REVIEW

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

Mr. Rousseau: With respect to the file listed under ``Reply Satisfactory(?)'', the issue here was the making of the Regulations. The committee had requested that the department proceed with the promised amendments independently, not at the same time as the planned general review of the regulations. The committee received confirmation that the requested amendments would be made in the spring of 2009.

Therefore, we should be seeing some progress on this file. Counsel could write back to the department asking it to confirm that the draft regulations will in fact be published this spring and to indicate when they will be adopted.

[English]

SOR/96-44 — DUTIES RELIEF REGULATIONS

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

SOR/2002-198 — REGULATIONS AMENDING THE SEEDS REGULATIONS

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

SOR/2005-303 — REGULATIONS AMENDING THE REPORTING OF IMPORTED GOODS REGULATIONS

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

SOR/2006-347 — 2-BUTOXYETHANOL REGULATIONS

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

SOR/2008-157 — REGULATIONS AMENDING THE NAME USE BY NON-FINANCIAL BUSINESS (EXCLUDED ENTITIES) REGULATIONS

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

SOR/2008-162 — REGULATIONS AMENDING THE MANNER OF CALCULATION (FOREIGN BANKS) REGULATIONS

SOR/2008-164 — REGULATIONS AMENDING THE SPECIALIZED FINANCING (FOREIGN BANKS) REGULATIONS

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

Mr. Bernhardt: There are seven files listed under Action Promised this morning. There are 10 amendments promised to the committee, including three that will revoke ultra vires provisions.

SOR/90-405 — CUSTOMS TARIFF SCHEDULES AMENDMENT ORDER, NO. 13

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

SOR/2008-118 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON IRAN

SOR/2007-44 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON IRAN

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

SOR/2008-142 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1585 — WINE STANDARD) (MISCELLANEOUS PROGRAM)

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

SOR/2008-188 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (PERMANENT RESIDENT CARDS)

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

SOR/2008-259 — REGULATIONS AMENDING THE EXCLUSION LIST REGULATIONS, 2007

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

Mr. Bernhardt: Under Action Taken, there are six instruments that make a total of 24 amendments that were promised to the committee.

SI/2008-52 — ORDER FIXING MAY 5, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-58 — ORDER FIXING MAY 19, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-61 — ORDER FIXING JUNE 16, 2008 AS THE DATE OF THE COMING INTO FORCE OF THE ACT, OTHER THAN SECTION 5

SI/2008-63 — ORDER FIXING DECEMBER 1, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-64 — ORDER FIXING JUNE 13, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-65 — ORDER FIXING JULY 1, 2008 AS THE DATE OF THE COMING INTO FORCE OF SUBSECTION 17(2) OF THE ACT

SI/2008-71 — ORDER FIXING OCTOBER 1, 2008 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2008-72 — ORDER FIXING JULY 10, 2008 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

SOR/89-103 — CONVENTION REFUGEE DETERMINATION DIVISION RULES

SOR/90-146 — CUSTOMS TARIFF SCHEDULES AMENDMENT ORDER, NO. 5

SOR/90-378 — CUSTOMS TARIFF SCHEDULES AMENDMENT ORDER, NO. 8

SOR/90-395 — CUSTOMS TARIFF SCHEDULES AMENDMENT ORDER, NO. 9

SOR/90-409 — SCHEDULE V TO THE CUSTOMS TARIFF, AMENDMENT

SOR/90-471 — BREWERY REGULATIONS, AMENDMENT

SOR/90-622 — PUBLIC SERVICE EMPLOYMENT REGULATIONS, AMENDMENT

SOR/90-750 — IMMIGRATION REGULATIONS, 1978, AMENDMENT

SOR/90-751 — FOREIGN EXTRATERRITORIAL MEASURES (UNITED STATES) ORDER (1990)

SOR/90-774 — HIBERNIA DEVELOPMENT PROJECT OFFSHORE APPLICATION REGULATIONS

SOR/90-800 — SPECIAL SERVICES AND FEES REGULATIONS, AMENDMENT

SOR/2005-387 — REGULATIONS AMENDING THE REPORTING OF IMPORTED GOODS REGULATIONS

SOR/2006-322 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING AGENCY QUOTA REGULATIONS

SOR/2006-323 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING AGENCY QUOTA REGULATIONS

SOR/2006-337 — LEGAL DEPOSIT OF PUBLICATIONS REGULATIONS

SOR/2006-341 — REGULATIONS AMENDING THE DESIGNATED PROVISIONS REGULATIONS

SOR/2007-12 — CANADIAN WHEAT BOARD DIRECTION ORDER NO. 1, 2007

SOR/2007-284 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2007-287 — REGULATIONS AMENDING THE PHYTOPHTHORA RAMORUM COMPENSATION REGULATIONS

SOR/2008-7 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING AGENCY QUOTA REGULATIONS

SOR/2008-24 — REGULATIONS AMENDING THE PRESENTATION OF PERSONS (2003) REGULATIONS

SOR/2008-53 — REGULATIONS AMENDING THE FORD NEW HOLLAND, INC. LOAN REGULATIONS

SOR/2008-61 — REGULATIONS AMENDING THE NOTICES OF UNINSURED DEPOSITS REGULATIONS

SOR/2008-62 — REGULATIONS AMENDING THE PRESCRIBED DEPOSITS (BANKS WITHOUT DEPOSIT INSURANCE) REGULATIONS

SOR/2008-63 — REGULATIONS AMENDING THE SHARED PREMISES REGULATIONS (BANKS)

SOR/2008-64 — NOTICES OF UNINSURED DEPOSITS REGULATIONS (TRUST AND LOAN COMPANIES)

SOR/2008-65 — NOTICES OF UNINSURED DEPOSITS REGULATIONS (RETAIL ASSOCIATIONS)

SOR/2008-66 — PRESCRIBED DEPOSITS (TRUST AND LOAN COMPANIES WITHOUT DEPOSIT INSURANCE) REGULATIONS

SOR/2008-67 — PRESCRIBED DEPOSITS (RETAIL ASSOCIATIONS WITHOUT DEPOSIT INSURANCE) REGULATIONS

SOR/2008-68 — SHARED PREMISES REGULATIONS (TRUST AND LOAN COMPANIES)

SOR/2008-69 — SHARED PREMISES REGULATIONS (RETAIL ASSOCIATIONS)

SOR/2008-71 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS

Mr. Bernhardt: Finally, under Statutory Instruments Without Comment, there are 40 instruments listed that have been reviewed and found to comply with all of the committee's criteria.

Mr. Lee: Excellent.

The Joint Chair (Mr. Kania): Any comments?

Thank you to counsel and staff for their hard work. This meeting is adjourned until next Thursday.

(The committee adjourned.)

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