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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 5 - Evidence,  May 27, 2010

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OTTAWA, Thursday, May 27, 2010

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

Senator Yonah Martin and Mr. Andrew Kania (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Kania): I understand there is an agreement between the party whips that we end at 9:30 a.m. today. Are there preliminary matters?

The Joint Chair (Senator Martin): This letter was received electronically late yesterday and has not been translated. We will not circulate it but we want to bring it to the attention of members. The letter pertains to SOR/98-166, Regulations Amending the Patented Medicines (Notice of Compliance) Regulations and comes to us from Industry Canada. We requested a response by today. The letter says that the department will try to expedite their process for implementing these changes, and the changes will come into force in the fall of 2010. It is no different from what we knew before. The letter will be translated and added to the agenda for the next meeting. Are there comments? Thank you.

Senator Moore: When did you receive the letter? Was it yesterday or today?

Peter Bernhardt, General Counsel to the Committee: We received it electronically last night.

Senator Moore: Was that by design of the department?

Mr. Bernhardt: There was a fairly short turnaround. The previous undertaking considered at the last meeting was satisfactory, and the department had hoped to have more details by today. The committee wanted the department told that they had to have more information for today's meeting. Therefore, at seven o'clock last night, we received the update that the amendment should be made in the fall.

Senator Moore: Do we anticipate anything else?

Mr. Bernhardt: No.

Mr. Lee: Wait until we read the letter.

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

(For text of document, see Appendix A, p. 5A:1)

Mr. Bernhardt: In 2003, the committee reported that the Part II License Fees imposed by these regulations could be open to legal challenge based on the criteria established by the Supreme Court to determine whether a charge constitutes an unlawful tax. The licensees launched a court challenge. At trial, the federal court ruled that the fees were an illegal tax. This decision was reversed by the Federal Court of Appeal, which found them to be valid regulatory charges and authorized under the Broadcasting Act. During this time, the committee also continued to be interested in the matter, and the fees were the subject of subsequent follow-up reports.

The Supreme Court of Canada agreed to hear the case but, on October 7, 2009, the parties announced that they had settled out of court. In return for a discontinuance, the government remitted the fees payable for 2006, 2007 and 2008 for a total of $450 million, including interest and costs.

In January, proposed new regulations were pre-published that would set a cap on the fees. That cap will put an end to the committee's concern in this particular instance. Although some aspects of the Federal Court of Appeal's reasoning are questionable, that is another issue for another day somewhere down the line. I expect the Supreme Court may also have occasion to provide additional clarity in a future decision. In any event, this particular file can be closed.

The Joint Chair (Mr. Kania): Are members agreed to close the file?

Mr. Lee: There is no litigation at this time on this matter.

Mr. Bernhardt: No.

Mr. Lee: Are we likely to have any more clarity on this issue from the courts?

Mr. Bernhardt: On these particular fees, no. As well as the settlement agreement, new fees will be in place. Those new fees will have a cap system so that the problem noted by the committee in this instance will not occur again, presumably. The whole issue of fees and taxes is ongoing and will surely come up again.

Mr. Lee: I regard this file as a huge success for the committee. It is a matter we had stuck to our guns on for several years and, as so often happens in our committee, we do not have a chance to celebrate these successes. I regret that we did not have some kind of a press release to signal that we are closing our file — that we regard the file as concluded successfully in the settlement and in the agreement of the government to rework the regulations. Even if we had a press release, I am not sure anyone would pick it up.

The number is large; it is almost half a billion dollars. I wanted to record that for the record; that the committee members have done a good job on this file. It is what we are supposed to do; we did our job.

Mr. Szabo: This matter has been going on for a long time. Although the settlement is $450 million, there are substantial costs to the Government of Canada for litigating this thing over all this period of time — probably extraordinary costs. I think it will be of interest for the committee to be apprised at least of the cost of the government litigation of this matter. In that way, as we come across this issue again, we understand that it is not only the settlement of the taxes paid by people. The cost of litigating probably is a substantial amount. I think it will reinforce the fact that this issue has to be dealt with a lot more swiftly, rather than continuing to have this subtle argument thing. If we can find out the cost, it will be helpful.

Senator Moore: In addition to the settlement — it is not clear from the memo, counsel — I want to know, as a matter of record, that this process whereby these taxes were collected is now changed so that it will not happen again in this manner.

Mr. Bernhardt: It will be changed.

Senator Moore: Is this change the significance of the new regulations?

Mr. Bernhardt: That is right. The new regulations will put a cap on the total amount that can be collected under the regulations.

Senator Moore: This change is as important as the money, for me anyway. Having been there with other colleagues around the table for the whole siege of this case, that cap is an important part of the resolution. I think that issue should be put in writing somehow or on the record. That issue was the thing that drove us from the beginning, and I think it should be stated somehow.

Mr. Bernhardt: Looking now at the two versions of the note, I am a bit mortified because that aspect is mentioned in the French version of the note, which was the original version, and I see the English translator has left the entire sentence out.

Senator Moore: Maybe you can reissue that version.

Mr. Bernhardt: I apologize for that; however, those who had the good fortune to read the French version received the unabridged edition.

The Joint Chair (Mr. Kania): It is happening; it has not happened.

Mr. Bernhardt: No, it was pre-published in January, so the regulations should be imminent.

Senator Moore: Please reissue that note so I will know it is done.

Mr. Lee: I suppose we all want to wrap up the self-congratulatory dialogue here, but I will close with a rhetorical question: When was the last time the Government of Canada gave back $450 million of taxes, plus interest, plus costs, period? You do not have to answer the question, it is rhetorical.

The Joint Chair (Mr. Kania): Going back to Mr. Szabo's point, were you looking for a copy of the settlement documentation, or were you looking for the bill from the lawyers for the Government of Canada that is not in that documentation, or both?

Mr. Szabo: I suspect a document exists within the government. The settlement document is clear with regard to the costs of the other side. Our buried costs are over and above these costs. I am interested to know the magnitude of the expenditures to litigate this issue over all this period of time to give us an idea of the significance of taking on these challenges.

It is beyond me, because this question of fees versus a tax has come up on a number of occasions. It may come up in the future, but I consider this example to be significant. If we ever come across this issue again, we may be more aggressive in terms of the strength with which we want to argue that a charge, in our view, is a tax. We have a good case here.

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

Mr. Bernhardt: We can ask.

Mr. Albrecht: Chair, I did not know that no comment meant we were doing it. My feeling is that we can try to find out all the hidden costs. We can analyze how many meetings were held and all that. I think we will continue burying more costs by doing another study and finding out that information.

Had it not been for the last sentence, that the regulations have been changed, I might agree, but we already have a process in place to improve the next time around. Let us move on, carry on with our work and celebrate it. Have an extra muffin, Mr. Lee.

[Translation]

Mr. Asselin: This problem has been around since 2003. The committee worked on making recommendations and asking questions, and yet the problem is still here in 2009. I am referring to the comment made by Mr. Szabo to the effect that the government has not heeded the committee's recommendations. Which party was in government in 2003? And, considering this, what is the point of dredging up the bills, the time, and all the rest? Doing so would have a boomerang effect.

[English]

Mr. Bernhardt: As you say, the committee first reported in 2003. The government at that time did not accept the committee's view. It took the view that we had valid regulation and it was a valid way to deal with it. The committee called witnesses from Treasury Board, the Canadian Radio-television and Telecommunications Commission and so on to hear evidence on that issue.

In the end, the committee cautioned the government that it leaned toward a different view and that the government was running the risk of having these things challenged in court. I guess the committee was clairvoyant because that is exactly what happened.

When the committee pursued the matter, the government said the issue was before the courts and would be decided in due course. Then the trial division agreed with the committee, the Court of Appeal disagreed with the committee and the case was going to the Supreme Court.

As to what happened to the fees from 2003, 2004 and 2005, that is out-of-court settlement so it is a matter of agreement between the parties. It looks to me like they agreed to split the difference. I think a total of $900 million in fees were collected, and there is clearly a power to collect fees.

Mr. Szabo: Chair, I will withdraw. I will make the specific request, as a member, to the Department of Justice if they have documents to indicate the overall cost details on this matter. Let us move on.

The Joint Chair (Mr. Kania): Will we close the file?

Hon. Members: Agreed.

SOR/2001-536 —REGULATIONS AMENDING THE CONSULAR SERVICES FEES REGULATIONS

(For text of document, see Appendix B, p. 5B:1)

Mr. Bernhardt: The Department of Foreign Affairs and International Trade Act authorizes the Governor-in- Council to make regulations prescribing fees to be paid for documents issued by the minister. Section 4 of these regulations, however, provides for a non-refundable fee payable at the time an application for a travel document is made. The joint committees concluded that this provision is ultra vires because it permits the collection of a fee even if no document is ever issued. The department seems to have accepted that there is no authority for section 4, but it does not seem to feel there is much urgency to the matter.

Following the committee's last consideration of this file, the joint chairs wrote to the minister expressing members' concern at the lack of progress as well as the failure of the department to reply in a timely fashion. The minister's cooperation was sought in ensuring that section 4 was revoked or amended without further delay, and an assurance was asked for that, in the interim, the section 4 fee will not be collected. The minister was also advised that, in the absence of a satisfactory reply, the committee will consider whether to proceed with the issuance of a notice of disallowance.

The department's reply of May 7 states that a proposed amendment should be submitted for Treasury Board approval before the summer. No mention is made of the request to forego collecting the fee in the interim, however. That is where matters stand as of this morning.

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

Senator Wallace: This file has been open for many years and I would say the letter written has had some impact. We finally received a response in the time frame established, which was 30 days, and that is positive.

When I look at the letter of May 7 to Mr. Bernhardt from the department, they point out that the recommendation of the Treasury Board is required and that they are moving in that direction and will do so, it seems, before the break. Therefore, I think all that response is positive when we look at the long history we have had with this file. In view of that reply, we should let that response run its course. Perhaps we send a letter confirming that we note the amendment will be taken to Treasury Board before the break and we welcome that; let them know we are continuing to stay on top of it.

Regardless, this response is progress.

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

Senator Moore: What about the other aspect of ceasing the collection of the fees? That response was interesting. If we write back, I say that we say we are looking for a response to that issue we raised.

Mr. Bernhardt: I suppose one way or another, given the time frame proposed in the department's letter, the file will be back before the committee early in the fall, either as a report that action has been taken or as a report that the promised action has not been taken.

In the meantime the committee can make that request again.

Senator Moore: I think they have to know that we noticed they did not respond.

Mr. Bernhardt: That can be pointed out, given the time frame and the fact that a new regulation should be imminent. They say before the summer. Today is May 27, so I presume they mean we will see the new regulations sometime in the next several weeks. By the time they reply regarding not collecting the fee —

Senator Moore: It might have taken care of itself.

Mr. Bernhardt: That is the hope.

Mr. Lee: I would have been a lot firmer on this issue. This fee is being charged to citizens, and it is illegal. The department admits it.

Senator, I do not think the file is as old as it looks. It is a 2001 regulation but we began looking at it at the end of 2006, so it is a bit over three years old. Beauty is in the eye of the beholder.

I think there has been enough clarity on this issue that we ought to firm up totally. I would have recommended that we give notice of disallowance. It takes some time for the clock to run on that notice; it will take us into the summer. If the department delivers, as it says it will, in eliminating the illegal charges made against applicants, then we will not proceed with a report. If they do not deliver on what they have committed to deliver with respect to this illegal charge, which is charged against ordinary people, then we can consider proceeding with a disallowance.

No disrespect is intended; this is our job. This is a big government and a big department. They have their fees wrong and that is why we are here. I think we should give notice of our intention to disallow and they will have four months to fix the problem. That is a lot of time. I am sure they will fix it.

In the event they do not, because colleagues will all understand how these things are shuffled off and set aside, we will come back in the fall and we are back into the same thing. Senator Moore will ask why we did not take steps earlier on this file.

I propose to seek consensus on giving notice on this file in an unprejudiced way; the way we have now started sometimes doing.

The Joint Chair (Senator Martin): I understand the position you are taking, Mr. Lee. I heard Senator Moore and counsel talk about the imminent changes, and Senator Wallace points out in terms of the response we have received that this file is moving forward.

I look at the previous file going back to 2003, and its successful completion. This file goes back to 2006 and, although I understand now that files can be older or shorter and what we do depends on the situation, I prefer to write the follow-up letter pointing out that we noticed they did not address the collection of the fees in the interim. I suggest we use forceful language. I prefer to do that, rather than issuing a letter using the word ``disallowance.''

That is my personal position but I do not know what other members around the table feel about that issue.

Senator Moore: I have a question for counsel. When we give notice of disallowance, what period of time is the notice?

Mr. Bernhardt: Thirty days; the committee is required to give the minister 30 days notice before it tables a disallowance report. Of course, that notice does not require the tabling of a report. The committee still needs to take a separate decision on that.

Senator Moore: If we do not have a satisfactory response by our last meeting of this committee before summer recess, what do we do then? If we have not received what we are looking for, do we then write back and say you are on your notice of disallowance, and will that take us to the fall? Either way, I guess we are picking up only 30 days.

Mr. Bernhardt: That runs the committee into the fall regardless. Even if the notice was issued today, that takes it to the end of June. One way or another, the committee is looking at seeing this file again in the fall, either as an Action Taken or as a lack of progress.

Senator Moore: Mr. Lee, I am torn here. I realize the severity of the situation. I think the department knows it is not doing the right thing and has to fix it, but I am prepared to give them the benefit of the doubt. I want to see if they fix it by the end of this session. If not, we need to be firm around the table and bring the issue to a head and have it done properly.

The Joint Chair (Mr. Kania): If it is not resolved before our last meeting, will we write a letter to tell them that we expect someone to appear at that last meeting to explain? We can discuss it and decide whether to proceed with the disallowance — perhaps a hybrid position between Senator Wallace and Mr. Lee.

Mr. Albrecht: There is a possible procedural issue. We have no guarantee, given the summer recess. Their commitment is to make the amendment before the summer recess. We might meet one or two weeks before the recess and they might resolve it after our last meeting and still meet their promise. I agree with Senator Moore that they have given every indication that they intend to comply. I do not think we need to use more harsh language at this point.

Senator Moore: I think we should be firm in our wording of the letter to the department.

The Joint Chair (Mr. Kania): I hear it suggested that we send a firmly worded letter to advise the department that we expect them to meet their commitment, and that we will review the matter shortly before the recess.

Mr. Lee: That is fine.

Senator Wallace: The point was covered; that is fine.

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

Hon. Members: Agreed.

SOR/2008-298 — REGULATIONS AMENDING THE GUN SHOWS REGULATIONS

(For text of document, see Appendix C, p. 5C:1)

Mr. Bernhardt: Section 118 of the Firearms Act requires regulations under the act to be tabled in both houses before they can be made. Section 119 provides for exceptions for proposed regulations in cases where the minister considers it to be urgent or that the changes being made to an existing regulation are only minor. In those cases, however, the minister must table a statement of the reasons for the minister's opinion. In the case of this instrument, 85 sitting days elapsed between making and tabling of the reasons in the House of Commons. There was a delay of 56 sitting days between making and tabling in the Senate. The Firearms Act does not fix a precise time within which a statement must be tabled, but in this case, the delays seem excessive. Unfortunately, it is not uncommon in the case of amendments to various firearms regulations. The department does not offer any explanation for the delay. However, it assures the committee that it will work to ensure that tabling requirements are complied with in a timely manner. There is nothing more to be done on this file, I suppose; time will tell.

Senator Moore: Will we monitor the file?

Mr. Bernhardt: We always check on these items so that with the coming amendments to regulations we will see if there is a time lapse. If it seems inordinate, we will bring it back.

The Joint Chair (Mr. Kania): Are members agreed to close the file?

Hon. Members: Agreed.

SOR/2004-27 — REGULATIONS AMENDING THE COLLISION REGULATIONS

(For text of document, see Appendix D, p. 5D:1)

Mr. Bernhardt: One remaining matter of contention on this file concerns a portion of Annex III to Schedule 1 of the regulations involving a table. The first two columns of the table set out the sound pressure level for whistles fitted on ships. The third column sets out the audibility range of the whistle, which is the distance at which one can hear the whistle. A footnote indicates that these standards are merely approximate, may apply only under certain conditions and, in practice, the range at which a whistle may be heard is ``extremely variable.'' This column is not intended apparently to set out any actual legal requirement but merely provides information that might be of use to mariners.

The question arises: What is this information doing in a law? The purpose of legislation is to set out rules and obligations, and there are many other ways to provide information, such as bulletins, circulars, pamphlets, websites and so on. The department argues that the information appears in the Convention on the International Regulations for Preventing Collisions at Sea, 1972 and that it provides practical guidance. Neither of the above is a reason to enshrine the information in law. The government provides a great deal of useful information to people without enacting legislation. As well, the fact that the convention already sets out the information seems to be another reason it does not need to be repeated in the regulation. I suggest that the matter be pursued in a further letter to the department.

Hon. Members: Agreed.

Mr. Lee: Chair, I must be living on another planet. I did not think it was such an egregious failure to follow good format. The part of the schedule under discussion is an attempt to set out standards for ships' whistles. If they are in the laboratory testing a ship's whistle, they look at the air pressure and the distance it will travel over water at 21 degrees Celsius without wind. I understand that those standards have been adopted internationally so that when they are at sea and unable to see anything, they can still hear the whistle. They can figure out from the frequency of the ship's whistle whether the ship is a big one or a little one. If they can hear it, they can determine what kind of movement is out there, perhaps in the fog, at night or if the electricity is not working on the ship.

When the department developed the schedule, they included this standard, which can sound differently when the weather conditions change, thereby creating a different readout of the ship's whistle. It would not warrant the reader of the schedule to rely overly on the standard as always being in existence in a real, practical situation. That is reasonable. It is like the mileage standards set for cars that will change under various conditions, including speed, road conditions, weather conditions or a stupid driver.

I am not so sure that we should look to them to establish this religious standard. I am not so sure that the holding out of the standard in the schedule is an imposition. The standard is there for everybody to see but they suggest caution when using it for various reasons. Am I wrong?

Mr. Bernhardt: To contrast your example, there is a difference between a car advertisement in the newspaper stating the mileage under certain conditions and something that is set out in the law. When I read a law, I ask myself: What does this say I have to do? The purpose of the law is to tell me what I have to do. When I look at this regulation, I see that first, it sets out a standard I have to follow and then second, it sets out more information that might be useful, although I still have to follow the standard. The point is: That is not the purpose of law. That might be the purpose of advertisements, bulletins and many other things, but if we clutter up the law with a lot of extraneous information that might be useful but does not have to be obeyed by people, we create the danger of throwing clarity, certainty and simplicity out the window.

Mr. Lee: I misunderstood. I thought we had set standards with a footnote indicating that we cannot always rely on them.

Mr. Bernhardt: They have a proper standard and the table looks like a second standard but at the bottom of it, we realize that it is simply helpful information.

Mr. Lee: Okay.

The Joint Chair (Mr. Kania): Are we agreed to write a letter as indicated?

Hon. Members: Agreed.

CANADIAN FOOD INSPECTION AGENCY FEES NOTICE

(For text of document, see Appendix E, p. 5E:1)

Mr. Bernhardt: Again, we have one unresolved matter here. This fees notice, in part, prescribes a fee of $100 a page for the review of an advertisement that has been submitted voluntarily to the Canadian Food Inspection Agency to obtain an opinion as to whether it contravenes the prohibitions in the Health of Animals Regulations against false, misleading or deceptive advertising.

In January, the agency advised that it considers its opinions to be binding unless the science or the position of the agency has changed. As for the significance of an opinion in the event of prosecution, the agency states that the value of an opinion will be weighed by the court, like any other evidence, in determining whether the person is guilty of the offence. In short, it seems to be the case that the agency does not consider that giving a favourable opinion in respect of an advertisement will prevent the agency from later initiating a prosecution in respect of the same advertisement.

The Canadian Food Inspection Agency Act authorizes the imposition of fees for services, products, rights or privileges. The agency presumably considers the giving of an opinion a service, but what is the nature of that service? If the agency gave an opinion that an advertisement contravenes the regulations and can lead to prosecution, I think it is legitimate to view the giving of that opinion as providing a service.

Similarly, if the agency considered its opinion to be binding, then a favourable opinion can be relied on by a person who requested it and, again, a service is provided. However, if the agency can ignore the fact it has given a favourable opinion and proceed to prosecute anyway, what service has been provided?

The note prepared for members contrasts this situation with what we find in the case of advance rulings on income tax matters. The fee for advanced rulings is set by regulation. Again, it is voluntary; there is no requirement to seek an advance income tax ruling, but it is regarded as binding on the Canada Revenue Agency. A taxpayer can rely on that ruling, and the giving of that ruling can be seen to provide a service.

That situation is different from what we seem to have here. In essence, the opinion provided by the Canadian Food Inspection Agency is meaningless. One wonders why anyone would pay for it in the first place.

It is suggested that unless the Canadian Food Inspection Agency is willing to give its assurance that no one will be prosecuted in respect of an advertisement that has previously been the subject of an opinion that it does not contravene the regulations, then it should be concluded there is no authority for this fee because no service is being provided.

The Joint Chair (Mr. Kania): Write back to the agency with that position. Are all agreed?

Hon. Members: Agreed.

SOR/94-118 — TIMBER REGULATIONS, 1993

(For text of document, see Appendix F, p. 5F:1)

Mr. Bernhardt: Among other things, these regulations establish the fees for stumpage on federal lands. The fees are stated to be the ``official published provincial fees'' that are in effect in the province where the forest area is located. This seemed rather vague, and the committee wanted to know whether it was possible to define what is meant by ``official published provincial fees.''

Their response was that the meaning of ``official published provincial fees'' was difficult to define because there are different provincial systems and it can be difficult to obtain an official publication of the fees. This response only seems to confirm the committee's initial suspicion. If the regulation maker who collects the fees finds it difficult to find out what those fees are, how is anyone else supposed to?

It was then suggested that perhaps the federal regulations, made by the Governor-in-Council, could establish the federal fees by setting an amount. If they want to, this amount can correspond to the provincial fees, but at least the amount will be found in the regulations.

In its most recent reply, the department explains why, as a matter of policy, it does not want to do this. However, it suggests removing the words ``official published'' so that the fees established will be those in effect in the province. This suggestion removes one aspect of the uncertainty; by the department's own admission, these fees are difficult to ascertain. The question for the committee is whether it is satisfied with the solution proposed.

There are other previously promised amendments. The initial forecast date for those amendments was June. This date has now been pushed back to October.

Finally, there is a question in the act itself, which contains no express authority for fixing fees. It seems clearly to be implied in the act that there must be a power to charge for stumpage, but generally the legal principle is that regulations imposing fees require express authority. The committee therefore suggested the act should be amended to provide this authority.

The department has agreed to consider amending the act if Parliament initiates a review of the act. However, despite repeated requests, the department has refused to commit to proceeding on its own to obtain the amendment.

At this point, perhaps this issue can be taken up with the minister directly. At the same time, the issue of the difficulty in ascertaining the applicable provincial fees can be pursued, if members feel that issue is something that needs to be pursued.

Mr. Albrecht: I think the department has gone out of its way to try to explain the situation in regard to the provincial jurisdictional issues involved. The department is concerned about the extensive public consultations that may be necessary in terms of the federal/provincial regulation. I think that because of their willingness to remove the words ``official published,'' that change will clarify it.

The department points out in their most recent response that this exercise they have engaged in with this committee has delayed their ability to conduct a review process of the Timber Regulations, 1993. I feel we have made progress on the file, and if we allow them to continue their work, that is the best way to proceed.

Mr. Lee: I feel the same way as Mr. Albrecht — that this item deals with the provinces and forestry. The provinces have 99.9 per cent jurisdiction over trees and forestry. Trying to manage this situation on the federal side is like working with a Rubik's cube. In any event, I thought they tried hard to make it work. Unless something is egregiously offensive from a regulatory point of view, I am inclined to go with the department on this one.

Mr. Bernhardt: I do not think, on its face, there is any difficulty with having a federal regulation say that the fees are those in force in the province. The question is more a practical one as opposed to a legal issue. It happened in the course of the correspondence that the department advised it was hard to find these provincial fees in some instances. That is not a problem on the face of the regulations. The question for members is whether that is something they want to deal with, or whether they are content with the regulation on its face, if it is amended as proposed.

The Joint Chair (Mr. Kania): I am hearing so far that we ask them to remove ``official published.''

Mr. Albrecht: The people responsible for learning these fees are not people who cut a few trees a month. They know where to go for the regulations. Whether we use the words ``official published'' or not, I think we can trust them to learn those fees.

Senator Moore: Are we writing a letter saying we thank them for their suggestion to remove those words, and is that it?

Mr. Bernhardt: There is the issue of the amendment to the act, which I think needs to be pursued. Again, the committee recognizes that while there is a general principle that they cannot impose a fee unless they have clear authority, there is little purpose to the Timber Act if they cannot charge stumpage fees. Stumpage fees are the core of the act, even though they are not mentioned there.

Yes, we reach a certain conclusion if we strictly apply the legal principle; but here, logic dictates otherwise. Therefore, the committee said they should have a clear authority in the act and they should add in that authority.

Senator Moore: Are you writing back to that effect?

Mr. Bernhardt: That is something else again — the undertaking that if Parliament reviews the act, they might consider making the amendment. I do not know why the onus is on Parliament to initiate a review that might lead to an amendment that the department might wish to put forward. If the department recognizes the need for the amendment, as in most cases —

Senator Moore: They should do it.

Mr. Bernhardt: They should take the initiative to see whether they can have that introduced.

Senator Moore: Will this point be included in your response?

Mr. Bernhardt: Yes.

The Joint Chair (Mr. Kania): We are agreed.

SOR/2007-63 — SERVICE OF DOCUMENTS REQUIRED OR AUTHORIZED TO BE SERVED UNDER SECTIONS 53 TO 57 OF THE CONFLICT OF INTEREST ACT REGULATIONS

(For text of documents, see Appendix G, p. 5G:1)

Evelyne Borkowski-Parent, Counsel to the Committee: The issue raised on this file was one of English and French discrepancy between the expression ``cannot conveniently be found'' and ``ne peut d'etre joint.'' In this instance the French version seems to impose a more stringent standard. In its letter of February 2, 2010, the Treasury Board Secretariat indicated it will look into addressing the committee's concern, possibly during the next five-year review of the Conflict of Interest Act.

As the next parliamentary review is scheduled to commence in July of 2012, years could pass before any amendments are made to the regulations. If the committee considers this response to be unsatisfactory, a letter can be drafted stating that this undertaking is too vague and pressing the Treasury Board to proceed with the amendment at once.

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

Hon. Members: Agreed.

[Translation]

SI/2009-94 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (SAOYÚ-ÆEHDACHO (GRIZZLY BEAR MOUNTAIN AND SCENTED GRASS HILLS) NATIONAL HISTORIC SITE) ORDER

(For text of document, see Appendix H, p. 5H:1)

The Joint Chair (Mr. Kania): We will now move on to item SI/2009-94, under the heading PART ACTION PROMISED.

Ms. Borkowski-Parent: A few issues related to the way the report was drafted—namely discrepancies between the French and the English versions—were identified in the original letter. The department intends to make the requested amendments during 2010. The department also provided a satisfactory response to issues raised in the letter regarding the expression laisse de haute de mer and its English equivalent, ``ordinary high water mark.'' At this point, we could send a letter to the department to enquire about progress made on this issue.

[English]

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

Hon. Members: Agreed.

SOR/2001-167 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990

SOR/2004-280 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990

(For text of documents, see Appendix I, p. 5I:1)

Mr. Bernhardt: Three outstanding issues were pursued following the committee's last consideration of the file. Action has now been promised to resolve the first one, numbered as point 11 in the correspondence. The other two points concern the lack of authority for recall procedures and record-keeping requirements. The Canadian Food Inspection Agency maintains the provisions are valid but it previously indicated it will consider revoking them as part of amendments consequential to Bill C-51 passed in the last session.

The agency now advises it is considering amending both the Food and Drugs Act and the Meat Inspection Act to clarify the authority for the provisions in question. Therefore, perhaps the agency should be asked if it has reached a conclusion following this consideration.

As for the amendments to the regulations, including a number of previously promised ones, they are to be part of a package identified by the agency in its correspondence as SI/20207 in connection with another file that is on the agenda this morning. The agency indicated that package should be enacted by the fall and the relevant letter on the other file is in the materials here, as well.

Senator Hervieux-Payette: What will be changed — the regulations or legislation?

Mr. Bernhardt: The regulations are expected for the fall, but we need to follow up on possible amendments to the acts.

Mr. Lee: Counsel, is this amendment package the first miscellaneous regulatory amendment package we have seen in a while, or is it a departmental package they are calling that?

Mr. Bernhardt: No, miscellaneous amendments regulations have been made from time to time. It is the miscellaneous statute amendments program that has not been used recently.

Mr. Lee: Thank you.

Mr. Bernhardt: They have a similar process for regulations that departments use from time to time and continue to do so.

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

SOR/2002-153 — ORDER AMENDING THE EXPORT CONTROL LIST

(For text of documents, see Appendix J, p. 5J:1)

Ms. Borkowski-Parent: First, I will apologize for an error in the title of the English translation of the October 26, 2004, letter. It should read ``Order Amending the Export Control List.''

The two promised amendments that dealt with drafting errors in the French version of this instrument were made by SOR/2009-128. The one issue outstanding concerns the sub-delegation of the Governor-in-Council's power to establish a list of goods and technology. The provisions in question purport to include on the export control list goods that are not otherwise listed if they are intended to be used, or if there are reasonable grounds to believe they would be used, in the making of weapons or missiles, therefore making the inclusion on the list someone else's judgment or assessment.

In its November 4, 2009, letter, the department advised the committee that its internal consultations were completed and that a remedy to eliminate the sub-delegation had been identified and was being pursued. No specific time frame was provided. A letter perhaps can be drafted to seek a progress report, as well as more details on the proposed amendments.

Mr. Szabo: Agreed.

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

Hon. Members: Agreed.

SOR/2007-169 — REGULATIONS AMENDING THE COMPENSATION FOR DESTROYED ANIMALS REGULATIONS

(For text of documents, see Appendix K, p. 5K:1)

Ms. Borkowski-Parent: Of the points raised in the initial letter, satisfactory answers were provided in regards to point 3, and action was promised on point 1, which deals with a French-English discrepancy, and point 2, which sought a clarification of the terminology used in the regulations.

In its February 22, 2010, letter, the department indicated it hoped to proceed with the amendments by the fall 2010 and, as such, progress can be monitored as per usual.

Hon. Members: Agreed.

Senator Moore: I want to ask a question. Do we write back and say, Thank you, we are monitoring it, or do we monitor it ourselves but let them know we are still in the game here? Do we write them a note? How do we handle that?

Mr. Bernhardt: In this case, when was the last letter received?

Ms. Borkowski-Parent: February 22.

Mr. Bernhardt: We will write back before the summer to ask for update.

Senator Moore: It will be good to let them know we acknowledge their intentions but continue to monitor the issue.

Mr. Bernhardt: The usual practice is to follow up every four months. In this case, we are coming up to that anyway.

SOR/2009-112 — CORDED WINDOW COVERING PRODUCTS REGULATIONS

(For text of documents, see Appendix L, p. 5L:1)

Mr. Bernhardt: Amendments have been promised to address the lack of consistency noted in point 2 of counsel's letter. These amendments are expected to be made in 2011. The other matter, once again, concerns open incorporation by reference. In responding on other files where the use of this technique has been objected to, Health Canada has taken to indicating it will await the legislation governing the use of incorporation by reference, generally, that the Minister of Justice has indicated will be forthcoming in response to the committee's report on that subject.

On those other files, the committee has asked for an agreement that, if this bill is not introduced within a reasonable time or if it fails to resolve the particular issue on this particular file, then either the regulation or the enabling act will be amended to deal with the particular concern. Therefore, in the interests of consistency, I propose the same thing here.

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): It is almost 9:30 with a substantial amount of the agenda remaining. Therefore, I think we will end there because we have one further matter concerning Parks Canada that counsel wants to address.

Mr. Bernhardt: Members may recall the committee is scheduled to hear witnesses from Parks Canada as well as Canadian Heritage at the next meeting on the question of the appropriate statute for fixing fees for national parks; whether that is the National Parks Act, the Parks Canada Agency Act or both. There is always in these cases the possibility that a last minute reply will be provided.

The committee had asked in its letter that either a satisfactory undertaking to clarify the statutes in question be provided by June 10 or, in the absence of that undertaking, the witnesses appear. This meeting is the last one before June 10.

I wonder if members want to turn their minds to what they want to do if the circumstances arise where a letter is provided between now and June 10. It can be left to the chair to look at that letter and decide whether the witnesses still need to appear, in light of the contents of the letter, or the witnesses can simply be told that their appearance is required regardless.

Senator Hervieux-Payette: I propose to leave the item in the hands of both chairs to decide. They will appear if the response is not satisfactory and, of course, we trust their good judgment.

The Joint Chair (Mr. Kania): Thank you.

Mr. Lee: Chair, in the interests of keeping things moving, can we dispose of the Statutory Instruments Without Comment so that they do not have to be put on a future agenda?

Mr. Szabo: Otherwise we need them recirculated to us.

SI/2007-66 — PROCLAMATION GIVING NOTICE OF THE COMING INTO FORCE ON MAY 4, 2004 OF THE PROTOCOL AMENDING THE CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND FOR THE AVOIDANCE OF DOUBLE TAXATION

SI/2007-87 — TESTING OF UNREGISTERED US MILITARY HERBICIDES, INCLUDING AGENT ORANGE, AT CFB GAGETOWN EX GRATIA PAYMENTS ORDER

SI/2008-25 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND JAPAN COMES INTO FORCE ON MARCH 1, 2008

SI/2008-81—ORDER AMENDING THE SPECIFICATIONS RELATING TO NON-AUTOMATIC WEIGHING DEVICES (1998)

SI/2008-148 — ORDER GOVERNING THE GRANT OF THE MEMORIAL CROSS

SI/2009-24 — ORDER RESPECTING EX-GRATIA PAYMENTS TO ANY PERSON OR ENTITY THAT SHOULD RECEIVE THOSE PAYMENTS ON BEHALF OF A DECEASED PERSON WHO WAS A CHINESE HEAD TAX PAYER OR WHO WAS IN A CONJUGAL RELATIONSHIP WITH A HEAD TAX PAYER

SI/2009-50 — ORDER AMENDING THE SCHEDULE TO THE SPECIES AT RISK ACT

SI/2009-61 — CETIFICATES OF AGE AND ORIGIN FOR DISTILLED SPIRITS PRODUCED OR PACKAGED IN CANADA ORDER

SI/2009-90 — ORDER AMENDING THE VISITING FORCES AND VISITING FORCES PERSONNEL ALCOHOLIC BEVERAGES REMISSION ORDER

SI/2009-103 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN NUNAVUT (UKKUSIKSALIK NATIONAL PARK) ORDER

SI/2009-111 — LIARD FIRST NATION REMISSION ORDER

SI/2009-112 — ORDER FIXING JANUARY 1, 2010 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2009-113 — ORDER DESIGNATING THE COMMISSION OF INQUIRY INTO THE DECLINE OF SOCKEYE SALMON IN THE FRASER RIVER AS A DEPARTMENT AND THE PRIME MINISTER AS APPROPRIATE MINISTER

SI/2009-114 — MICHAEL RENSHAW REMISSION ORDER

SOR/2008-309 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (2010 VANCOUVER OLYMPIC AND PARALYMPIC WINTER GAMES)

SOR/2009-129 — ORDER AMENDING THE MOBILE OFFSHORE DRILLING UNITS REMISSION ORDER, 2004

SOR/2009-133 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

SOR/2009-135 — ORDER 2009-87-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-140 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

SOR/2009-142 — REGULATIONS AMENDING THE MARIHUANA MEDICAL ACCESS REGULATIONS

SOR/2009-146 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2009-154 — ORDER AMENDING SCHEDULE 1 TO THE CANADA SHIPPING ACT, 2001

SOR/2009-158 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (ABÉNAKIS DE WÔLINAK)

SOR/2009-159 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2009-160 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION JOINT AND TRUST ACCOUNT DISCLOSURE BY-LAW

SOR/2009-161 — ORDER AMENDING THE WEED SEEDS ORDER, 2005

SOR/2009-164 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (SECTION 87.1)

SOR/2009-169 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS

Mr. Bernhardt: There are 28 Statutory Instruments Without Comment this morning. As always, those are instruments that counsel has reviewed and found to comply with criteria. A list of those instruments is provided, but we have the text at each meeting if anyone wants to look at them.

Mr. Lee: I am looking at agenda item 13, Action Taken. Is it necessary to bring that back again?

SOR/2007-13 — REGULATIONS AMENDING THE CANADA PENSION PLAN INVESTMENT BOARD REGULATIONS

(For text of documents, see Appendix M, p. 5M:1)

Mr. Bernhardt: No; let me see if I can explain it in 50 words or less. Under Action Taken, on SOR/2007-13 it is noted that amendments to the Canada Pension Plan Investment Board Act had the effect of validating the SOR/2000-17 retroactively. This was necessary because the instrument had originally been made and approved in a manner contrary to what the act provided for previously.

SOR/2009-145 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (CONDITIONS FOR SPECIAL PROVISIONS FOR THE PURPOSES OF THE UNITED STATES TARIFF (UST))

(For text of documents, see Appendix N, p. 5N:1)

Mr. Bernhardt: The other instrument, SOR/2009-145, makes one promised correction and removes three unnecessary provisions.

The Joint Chair (Mr. Kania): Agreed.

The rest of the items will be brought back at the next meeting, on June 10. Thank you very much.

(The committee adjourned.)

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