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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 2 - Evidence - October 20, 2011

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OTTAWA, Thursday, October 20, 2011

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:42 a.m. for the review of statutory instruments.

Senator Bob Runciman and Ms. Françoise Boivin (Joint Chairs) in the chair.

[English]

The Joint Chair (Senator Runciman): This is the Standing Joint Committee for the Scrutiny of Regulations. Let us proceed to the first item on today's agenda.

C.R.C. c. 954 — INDIAN ESTATES REGULATIONS

(For text of documents, see Appendix A, p. 2A:1.)

Peter Bernhardt, General Counsel to the Committee: By way of summary, last December the committee tabled its report on what had been section 14 of the Indian Estates Regulations. This provision had authorized the minister to deem certain persons to be the widow of a deceased Indian for intestate succession. Typically, this was done to allow common-law spouses to inherit.

The joint committee first reported on this issue back in 1999. Following that report, the government accepted that there was no authority for the provision in question and it was revoked. The government also accepted that a complete solution would involve introducing a bill that would validate the orders that had been made in the past.

After that, there were a number of attempts by the government to back away from any such commitment. These are all detailed in the second report.

As late as December 2006, the minister still accepted that the deeming of widows under section 14 was ultra vires. Even in 2009, the committee was told that an appropriate opportunity to introduce validating legislation was being sought. By May 2010, however, there was apparently no longer any intention to introduce that legislation.

In view of this, the committee decided to draw the attention of the houses to the fact that there may be unresolved issues relating to how estates were distributed, and urged action to fulfill the undertaking to address the matter through legislation. The minister's March 25 letter constitutes the response to the committee's report. In it, he advises that the government is now of the view that the orders in question are valid until struck down by a court.

While, as a matter of law, there is a presumption of validity, I would suggest in this case it could be seen to be a bit disingenuous to try to rely on it, given that there was previously an acceptance that there was no authority to make these orders in first place. The letter also notes the orders were made in good faith. Of course, the committee has never suggested otherwise.

Finally, it is suggested that because no orders have been made since 1999, retroactive validation would not have any real practical effect and the cost of any such action would outweigh the benefit. I can only refer to the comments the committee made in the second report to the effect that the delay in taking action is now being used to argue that the passage of time makes action unnecessary.

All this being said, my recollection is that at the time this report was adopted, members of the committee saw its purpose as being to advise the houses that it felt there could be unfinished business on this file, but that having put that on the record, the committee had done its job as best it could. Of course, it is for current members to determine whether there is a desire to continue prodding on this file and whether that would be to any effect.

The Joint Chair (Senator Runciman): Other comments?

Mr. Saxton: Counsel says that they say delay makes action unnecessary. I do not necessarily agree with that. It is the fact that there have been no challenges to it that makes action unnecessary. There has been no need to take action. Definitely there is an issue; however, the minister clearly points out in his letter that the cost of taking action would outweigh the benefit. Therefore, we should accept the minister's letter.

Mr. Pacetti: For clarification, the letter is dated March 25. Why are we looking at it only now?

Mr. Bernhardt: March 25 was the date Parliament was dissolved. This is second meeting of the committee since that time.

Mr. Pacetti: It is only because of that.

Mr. Bernhardt: Yes.

The Joint Chair (Senator Runciman): We have a recommendation from Mr. Saxton.

Senator Harb: I am not pleased with the minister's response or the excuse he is using. I am worried that we might be setting a precedent if we simply wait and take action only if someone challenges it. In my view, that is not acceptable. Counsel should write to the minister that it is a matter of applying the law and doing what the minister is supposed to do in this case. Clearly, the minister did not do that and chose to take the easy route.

The Joint Chair (Senator Runciman): We have two conflicting views.

Does anyone else want to offer a view on this?

[Translation]

The Joint Chair (Ms. Boivin): I just have a question for our legal counsels: what are our options?

Let us say that we share Senator Harb's opinion; I, too, am concerned if a legal counsel says that we know it is illegal, but we will have to wait for it to be contested before we can take action. That seems like strange logic. Perhaps it is because I am new to the committee, but I would like to know what the options are. A report has already been made to Parliament. I do not think we can drag the minister here in handcuffs. So what are our powers here?

[English]

Mr. Bernhardt: There is nothing here to disallow. The provision in the regulations is gone so that is not an option in this case. The committee could make another report setting out why it has concerns with the position reflected in the minister's letter. Alternatively, on a less formal approach, the committee could choose to write to the minister in the form of a letter to make its views known. It would be a case of, for lack of a better phrase, continuing to prod the government. If members feel that that might bear fruit, those are the two options. Beyond that I do not think there are many avenues open to the committee at this time.

The Joint Chair (Senator Runciman): This has been ongoing since 1983. Is that right?

Mr. Bernhardt: The first report of the committee was in 1999 but this file was first before the committee in 1983.

The Joint Chair (Senator Runciman): It has been around a long time. I do not think there is much point in pursuing it. I understand Senator Harb's perspective on this well. It is an exercise in futility to write yet another letter or file another report.

Mr. Bernhardt: As a middle ground, something just occurred to me as a hybrid option: A letter back to the minister saying that the committee continued to have concerns and was not entirely happy with the response but was not inclined to pursue the matter given that there was little likelihood of action being taken. If members decide they want the last word, that would be one way to go about it.

The Joint Chair (Senator Runciman): Are we all right with that? Do we have consensus?

Hon. Members: Agreed.

SOR/2010-158 — BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER

(For text of documents, see Appendix B, p. 2B:1.)

Mr. Bernhardt: This instrument revokes and re-enacts the Beef Cattle Research, Market Development and Promotion Levies Order to address a defect in the procedure by which the previous order was made. The remaking of this order puts the collection of the levies on a sound legal footing. The Farm Products Council does not intend to seek passage of legislation to retroactively validate the levies collected in the past or to make any refunds of those levies.

One question for the committee is whether it wants to pursue that aspect. In the past, the committee has insisted on reimbursement of money collected without authority where the defect arose from ignoring or contravening a statutory requirement. In this case, the mistake in procedure was adopted in the belief that it met the statutory requirement. I suppose that might give it a somewhat different shading.

Another remaining issue concerns the imposition of obligations on all sellers, purchasers and dealers to pay, deduct and remit the levies, even though the Farm Products Council has advised the committee that as a practical matter the agency is unable to enforce and collect the levies unless it has an agreement with a particular province.

In other words, all of these people have a legal obligation to pay the money but have no way to comply with that in the absence of an agreement with the province. Now, apparently, there are agreements with every province except Newfoundland. Nevertheless, it was suggested previously that if the intent is that these levies be payable only when there is an agreement with a given province, it should be stated in the regulations. That was not done when the order was remade, and there was no reply to that suggestion in the more recent correspondence. Perhaps the committee might wish to pursue that.

The final matter is a question of a discrepancy between the two versions of section 6(3) of the Beef Cattle Research, Market Development and Promotion Levies Order, which was supposed to be corrected when the order was remade. It was overlooked apparently inadvertently, and the committee now has a renewed promise to make that correction.

By way of recommendation, I suggest a letter to the Farm Products Council to ask when that amendment will be made and make the suggestion in connection with the need for agreement with the provinces in order to impose the levy. That still leaves the question of whether members want to pursue the issue of money that was paid in the past under the old order.

Mr. Albas: We should write to the Farm Products Council and instruct them to begin the process of developing proposed legislation to address some of the retroactivity issues and to ask for further details, as pointed out by counsel. I share some of the concerns that we should follow up on those.

Senator Harb: Is legislation needed or amendment to the regulation?

Mr. Bernhardt: If the committee chooses to take the position that something should be done about the money paid in the past, it would require legislation in the form of a bill before Parliament to retroactively validate the collection of those levies.

Senator Harb: How much are we talking about in dollars and cents? My fear is that the costs of developing legislation and supporting regulations might outweigh the amount involved.

The Joint Chair (Ms. Boivin): You are going against your argument.

Senator Harb: I understand. In this situation they are not trying not to comply, but they could not comply because of jurisdictional issues. This is fair. I am sure counsel understands that.

Mr. Bernhardt: I do not have a figure but the committee certainly could ask the FPC to come up with one. I expect it is a considerable sum. We are talking about a period of about five years that the levy was collected under the old order. It would have pertained to all beef cattle marketed in interprovincial and export trade. I assume it was a fairly considerable amount.

Senator Harb: In that case, I support my colleague.

Mr. Pacetti: Is there regional discrepancy? You said that there are agreements with some of the provinces. Is it the case that if you lived in one area of the country, you did not have to pay this levy?

Mr. Bernhardt: Exactly, even though on the face of the regulation the levy was imposed on you. No one ever came to collect it because, as a practical matter, the federal levy could not be collected unless an agreement to collect it had been struck with the province.

Mr. Pacetti: Has no one ever disputed that? Did somebody from one region not ask why he is paying when his buddy next door is not paying?

Mr. Bernhardt: I am surprised, because when the committee originally saw this file, I believe the first response at that time was that there were agreements with only four provinces. In the intervening period since that time, apparently there are now agreements with every province except Newfoundland.

At one point, then, I presume this levy was being collected in four provinces and not in the other six, despite the fact that, legally, it had been imposed on everyone.

Mr. Pacetti: For argument's sake, if Newfoundland was to sign, the government would not be able to go retroactively to collect, correct?

Mr. Bernhardt: Definitely not.

The Joint Chair (Senator Runciman): Is there anything further or any advice with respect to proceeding?

Mr. Albas: Again, I am just saying that we write to the council and ask them to start putting together changes legislatively to address the retroactivity issue, and then ask them to update us on some other details that have been raised in the report.

[Translation]

Mr. Dionne Labelle: Can you tell me what the purpose is of these levies as far as the interprovincial market is concerned? I am looking at prices across the provinces and it seems to me that it unfairly limits trade. What was the purpose?

[English]

Mr. Bernhardt: In this case, this levy was an additional levy to fund ``market development and promotion.'' It basically went to various activities to promote Canadian beef.

The Joint Chair (Senator Runciman): I guess we are all in agreement with the suggestion of Mr. Albas.

SOR/2010-79 — REGULATIONS AMENDING THE OCEAN DUMPING PERMIT FEE REGULATIONS (SITE MONITORING) (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix C, p. 2C:1.)

Mr. Bernhardt: The issue here is the proper enabling authority for these regulations. They purport to have been made under the Financial Administration Act. In our view, the correct enabling provisions are found in the Canadian Environmental Protection Act.

The regulations set the fee for an ocean dumping permit granted under the Environmental Protection Act. The English version of paragraph 127(2)(c) of the act, which is the pertinent enabling authority, states the application for permit must be accompanied by the prescribed fees. ``Prescribed fees'' under that act means prescribed by regulations made under that act. This is also a more recent and specific provision than the one in the FAA and therefore would take precedence.

In this instance, under both acts, the fee has to be set by the Governor-in-Council on the recommendation of the Treasury Board. The two requirements were met, so regardless of which act this was made under, you will have a valid regulation.

It is more a question here of going forward, when future regulations are made in this vein, as to what the proper enabling authority that is relied on should be.

The department stated that the fee schedule will be reviewed in the next three years to compare the authorities under the two acts and determine whether authority should, in its words, ``be transferred'' to the Environmental Protection Act. I would suggest there is no choice in this matter. Parliament has already spoken. It has clearly provided that the fees are to be set under the Environmental Protection Act.

Therefore, I would suggest going back to the department, making that point to them and asking them to acknowledge that the Environmental Protection Act here has priority and is the act that will be cited and relied upon in future when making these kinds of regulations.

The Joint Chair (Senator Runciman): Are we agreed?

Mr. Bruinooge: Yes, generally speaking, I think that is probably the letter we look for to go to the department. However, they have already indicated they will clarify this during a review of the bill, so I do not know if we need to be so aggressive with our language, but why not.

SOR/2001-532 — TELECOMMUNICATIONS APPARATUS REGULATIONS

(For text of documents, see Appendix D, p. 2D:1.)

Evelyne Borkowski-Parent, Counsel to the Committee: This file was in front of the committee at its April 15, 2010 meeting, at which time it was agreed to follow up with the department as to when it expected to proceed to legislative amendments that would resolve the issue of subdelegation raised by the committee.

In the letter dated May 17, 2010, the department stated amendments were expected for the fall of that year. Since no amendments were brought forward, it was inquired as to when the amendments would be introduced. The department then responded on February 8, 2011, that it no longer was in a position to provide a time frame for the legislative amendments.

With your accord, a follow-up letter asking if they could give a more precise time frame could be sent to the department. In the meantime, a portion of the regulations is still unlawful; if the act is not to be amended, then the regulations should be.

Mr. Wilks: With regard to the recommendation, I concur that we need to send a letter to them and try to figure out the timeline that they want. I wonder, as we were doing in the last meeting, if we should set a timeline? Obviously, long delays will not help us here. Do we need to resolve this sooner rather than later? That is my recommendation to the chair and vice-chair.

The Joint Chair (Senator Runciman): To me, it is appropriate since it is 2005. Does everyone agree?

[Translation]

Senator Hervieux-Payette: Who do you intend to send the letter to? The same person who told us they did not know, or do we want to go higher, to the deputy minister? Because, basically, counsel is in no way familiar with the department's internal and external decision-making process.

I am suggesting that, instead of writing to the same person who is going to write back with the same nonsense, we at least write to someone at a higher level, someone senior to that public servant. We will find out if changes really are coming. Otherwise, he will have to amend the regulations. It will be more practical.

Ms. Boivin: What timeline would you suggest?

Senator Hervieux-Payette: Thirty days.

Mr. Larose: Thirty days.

[English]

SOR/2003-196 — NATURAL HEALTH PRODUCTS REGULATIONS

(For text of documents, see Appendix E, p. 2E:1.)

Mr. Bernhardt: An initial 26 points were raised in connection with these regulations. Following consideration of the first reply from the department, counsel was instructed to pursue 9 points on which the department's reply was not considered satisfactory. This was done in the letter dated March 10, 2009.

A partial response that dealt with some of the outstanding issues was provided quickly, with the department advising that the others were still under review. A letter dealing with those other matters was not forthcoming until May 5, 2011.

Further amendments have now been promised to resolve 4 of the 9 outstanding points. For the record, these are the ones numbered 3, 6, 11 and 13 in the correspondence.

I would also suggest the department's reply in connection with points 12 and 21 can be seen to be satisfactory. If members concur, no further action is required on those points.

That leaves 3 remaining; those are numbered 4, 14 and 25 of the original 26. Those are discussed in detail in the note prepared for members for this morning.

The first and perhaps the most significant one is point 4. It concerns provisions that provide for compliance of imported products with requirements that are equivalent to those in the regulations.

The department has advised that determinations as to what is and is not equivalent are made by the minister, and information regarding how that is done is found in something called the Site Licensing Guidance Document. The committee had suggested that the requirements in that document should be included in the regulations themselves because they are central to the application of the regime. The department's reply was that it requires a more flexible approach.

When you look at the Guidance Document, it contains a detailed list of documents and types of evidence that will be accepted as demonstrating a standard as being equivalent to the regulations. It also has a list of particular countries in respect of which certain documents are acceptable.

At the same time, the Guidance Document is purely administrative. It is not legally binding on anybody. The minister is free to apply it or ignore it as he sees fit. At the end of the day, the question is left to the minister's discretion.

In order to ensure that people in identical circumstances are treated consistently, it is always preferable that there be at least some parameters placed on the exercise of discretion conferred by regulations.

In this connection, I note that the Guidance Document states that documents other than those listed will be acceptable ``as long as they demonstrate . . . an adherence to all relevant. . . . requirements and a commitment to follow the Regulations.''

Putting that sort of provision in the regulations together with the specific provisions of the Guidance Document, I suggest would give to the government the flexibility it is looking for and, at the same time, would enshrine a standard in the regulation that would ensure consistent application. That could be put to the department again.

An additional aspect arises from the department's latest reply concerning mutual recognition agreements with other countries. The reply indicates that natural health products are not included in these agreements, yet there is an appendix to the Guidance Document that lists the countries that Canada has these agreements with. If these agreements do not apply to natural health products, then what is the purpose of listing them in an appendix to the Guidance Document for those products? It seems that a question needs to be asked.

Point 14 is simply a question of clarification on two provisions, 62(e) and 62(i). Despite the government's reading of these provisions, they do not say what they intend them to say. It is a question of clarifying them so they reflect the intent.

Point 25 concerns section 100, which states that certain provisions of the Food and Drug Regulations apply to natural health products in addition to these regulations. Other sections also provide for the application of provisions of the Food and Drug Regulations to natural health products but do not state that this is in addition to these regulations.

The department's explanation is that this phrase is intended as a cue to the reader that other requirements concerning importations are found elsewhere in the Natural Health Products Regulations. Whether anyone is likely to pick up on this cue is rather doubtful. It was suggested that the reference is inconsistent with what is done with other similar provisions in the same regulations and likely causes more confusion than it solves; and, on top of everything else, states what would be the case in any event.

The department has proposed some rewording that I do not think affects any of that. I suggest we have three unresolved issues that could be pursued by the committee through a further letter to the department.

Senator Harb: The good news is that the department is engaged and seems to be willing to give and take. Looking at their communication with counsel, I am satisfied that they will move forward on it.

They lack a bit of clarity because this whole field is quite difficult to deal with. I would suggest the positive engagement of writing a letter to clarify the position of counsel and the committee to keep it going.

Mr. Bernhardt: As you say, 23 of the 26 have been sorted out.

Senator Harb: That is very good. Perhaps counsel could acknowledge the fact that we appreciate their cooperation.

Mr. Brown: I have similar comments. It makes sense to ask the department what action it will take on the remaining items.

The Joint Chair (Senator Runciman): Are all agreed?

Hon. Members: Agreed.

[Translation]

SOR/2007-302 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS AND THE DAIRY PRODUCTS REGULATIONS

(For text of documents, see Appendix F, p. 2F:1.)

Ms. Borkowski-Parent: As indicated in the note accompanying this file, there are still two points of discussion, despite the agency's promise to amend the regulations. The first case involved amending subsection 26.2(2) to include specific control criteria concerning the pest control program, and the agency's position still seems a little vague. We should send a follow-up regarding the scope of the proposed amendments and the planned timeline.

As for subsections 26.5(1) and 26.6(1), the agency does not seem to agree with the committee's arguments that the director should not have discretionary power to suspend, or not, and to cancel, or not, the permit of importers who do not meet the requirements of the act, who have been so advised and who, nevertheless, refuse to comply.

However, in its March 10, 2011 letter, the agency promised to amend the regulations to include additional criteria to guide the director. Even with the added criteria, it remains that, with the current wording, the director would still have the discretion to suspend or cancel a permit.

To respond to the committee's concerns, amending these sections should eliminate the director's discretionary power and not just restrict it. Perhaps this could be mentioned in our follow-up letter.

[English]

Mr. Breitkreuz: I have concern when we allow too much discretion because people who are trying to comply with these regulations need to have some idea of what they are doing. Therefore, I suggest we ask for more details on how they plan to address this entire issue. I agree with you.

[Translation]

The Joint Chair (Ms. Boivin): Other comments? So we will follow up? Point number 6, Reply Satisfactory. This should not take too long.

SOR/2008-273 — PCB REGULATIONS

(For text of documents, see Appendix G, p. 2G:1.)

Ms. Borkowski-Parent: Eight of the issues raised by the advisors in this file were resolved at the committee meeting on November 18, 2010. The department is committed to proceeding with amendments on the remaining points. Amending by-laws were published in Part 1 of the March 19, 2011 issue of the Canada Gazette. It has been seven months; perhaps a follow-up letter could be sent to the department to inquire about the progress in this file.

The Joint Chair (Ms. Boivin): No comments? Okay.

[English]

SOR/2009-314 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

(For text of documents, see Appendix H, p. 2H:1.)

Ms. Borkowski-Parent: The last issue pertaining to this file dealt with a discrepancy in how the voluntary EU Sport Fish Certification Program was described on the British Columbia Ministry of Agriculture and Lands website and how the program did, in fact, operate under the Fish Inspection Regulations. The last time the file was in front of the committee on November 18, 2010, changes to the British Columbia website had yet to be made.

We can now report that as of this past July, the Certification Program's documentation, as it appears on its website, has been updated; so this file could be closed.

[Translation]

The Joint Chair (Ms. Boivin): Excellent. So we can close it.

[English]

SOR/2002-354 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY, 2002-1 (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix I, p. 2I:1.)

Ms. Borkowski-Parent: The only point raised on this file was one of discrepancy between the English and French versions of subsection 18(1). In December 2009, the agency informed the committee that it had carried out the required change. This was not the case, which seems to be the result of an administrative mistake. The Canadian Food Inspection Agency is to deal with the matter as part of an overall revision of the Fish Inspection Regulations, including amendments promised on other files as well.

The latest estimate from the agency for completing the revision is the year 2012. As this estimate dates back to February, a letter could be drafted asking for an updated time frame. In the case that time of completion is pushed back once more, members could consider asking the agency to separate the amendment promised for this file from other amendments that are part of the overall revision, which seems to slow progress on this file.

[Translation]

Senator Hervieux-Payette: Are they promising to do it by the end of the year, or are they delaying the other regulations from month to month?

Ms. Borkowski-Parent: Their last estimate was by the end of 2012, so next year. The other amendments, promised in the other files, are more substantial than simply drafting issues.

Senator Hervieux-Payette: That makes no sense. We will not wait a year for both versions to correspond. I think we need to have the same version in English and in French before then.

For the taxpayers affected by these regulations, it is not normal for the regulations not to correspond. We should send a note saying that we would much prefer that this be amended separately.

The Joint Chair (Ms. Boivin): Do we have a consensus?

[English]

Mr. Trost: From our perspective, I want to know how substantive this is or what practical impact it has had. If there has not been any major impact, I prefer to go with the clerk's recommendation that we should see where it is at and get them to give us more of a timeline. It does not seem to be affecting anything, unless I am wrong and it has had some substantive impact.

Mr. Bernhardt: Practically, on the ground, when you say it does not affect something, it is probably true in the sense that most inspectors and producers do not look at the regulations. They look at the manual, which will say what the regulations are supposed to say and it often may not say what the regulations actually say.

There is sometimes a dissonance there, which is where this committee comes in. Very often, it is not so much a case of what is being done is illegal, it is just the regulations do not reflect what is being done on the ground. Obviously, the regulations are the source of what is being done on the ground and should be brought into conformity.

Here, my guess is that this is a relatively minor amendment. Unfortunately, it got left out in the last round, for reasons internal to the department, and now it has been caught up in a larger thing.

It is difficult for us to give a really hard and fast rule to the committee in dealing with these. On the one hand, you can say it is a minor amendment. The committee should be patient. Why push it? It is not that significant. On the other hand you can look at it and say if it is a minor amendment, it should be an easy fix. Why is it dragging on?

That is a judgment members have to make on a case-by-case basis. I do not know how much help that is.

Mr. Trost: I understand. Personally, I am fine with the recommendation that we have here.

[Translation]

Senator Hervieux-Payette: I did not understand whether Mr. Trost agreed that we should go ahead with an amendment before all the regulations are changed, but if he is, I do not have any comments.

Also, for clarification, I do not know if everyone here has studied law. We may be members without having taken a law course. It is a matter of principle that when we have an act and regulations, the regulations must correspond with the act and the directives must correspond with the regulations; even if the directives say something, they do not take precedence. That kind of situation can bring people before the courts and it costs a lot of money. It was just an aside and does not only apply in this case. Not having the same thing in French and in English can lead to considerable problems before the courts. We are here to help taxpayers and people affected by the regulations to understand the regulations, which need to be accurate and easily applied. Whether it is in this case or others, I think consistency between both English and French versions, correct legal expression, is very important and is a basic principle that must be applied in this committee. Otherwise, there is no reason for this committee to exist, if we ourselves cannot require a level of excellence from our regulatory agencies.

[English]

Mr. Albas: I appreciate the points that the senator has made on this. Obviously, there is substantial substance to what she is saying. However, what I would go back to is that in the last meeting, there seemed to be a consensus saying that if a department is working in good faith with us, if we are getting satisfactory replies, that we should try to work well with them.

In fact, it was raised by an earlier comment that when a department or agency is trying to comply, we should show some leeway because they have substantially replied that they are agreeing with us. I also note that our counsel says there are more substantial changes that need to be made. To me, it makes sense to the taxpayer to have all the changes presented at one time rather than legislatively having things held up in committees.

I would like to see the changes. I do appreciate her concerns, but I think we should be supporting those that are taking our requests seriously.

Ms. Borkowski-Parent: As a point of information for the members, in the case of an amendment of that nature to bring the two versions back in line, there is also a miscellaneous amendment program, which is a less stringent regulatory process to expedite that kind of matter. It could be in favour of separating those issues because substantive legal issues could not go under that program. That is just a point of information as far as process goes.

Mr. Saxton: My understanding is that this whole package will be reviewed in 2012, which is 10 weeks from now. Why not just allow it to be amended as part of a larger package?

Mr. Bernhardt: In response to that, if the reply comes back that things are taking longer and the deadline is now 2015, that will be back before the committee and the committee can decide at that point whether it wants to make the request that its amendment be pursued separately.

[Translation]

The Joint Chair (Ms. Boivin): Everyone is saying the same thing. 2012 is coming, and we cannot leave things that are not legally correct. They were the last ones to write, so we could simply thank them first because, as we said last week, we appreciate the people who work with us. We could say we appreciate what they explained to us in their letter of March 3, 2011. It is now October, and there is nothing wrong with sending them another letter saying that we appreciate it and that we are expecting follow-up in 2012 and that we expect to see certain things. I think we are showing that we would like things to be done more quickly, if they can pay particular attention to that, even better, then to do it as quickly as possible. Okay?

Mr. Pacetti: Just a comment. It is a little vague, but — Up until now, all the correspondence we have had is not up to date. These things go back months and years. In 10 weeks, it will be 2012, but in my experience, I do not think we will have an answer on January 1, 2012. So if we can take care of some of these matters—and it does not cost much- why not do so? I think we should work a little more efficiently than playing the game. With correspondence, we will be waiting, unless there is a promise that everything will be done for January 31. But with the experience of a meeting and a half, I have no illusions that we will get a fairly quick response.

The Joint Chair (Ms. Boivin): Mr. Larose.

Mr. Larose: I have the same concern. If we follow the normal process, if there is a deadline and it comes back here, what are we adding? Another 30 days. I agree with the senator that this is still about the taxpayers, so the two should be separated. It is always good to say thank you, sure, but we have to make sure that at least part of it is settled as quickly as possible and, if we can settle it all at the same time, so much the better.

The Joint Chair (Ms. Boivin): So now what? The choice is yours. There are two positions. We divide it into two and move one faster than the other. We give them 30 days to see how possible it is for them to get it done and we leave the rest to be followed up in 2012. Or we give them this little bit of extra rope. It is up to you.

Who is in favour of the first scenario?

[English]

Mr. Saxton: I would like to propose that we give them more flexibility and allow them to amend it as part of the larger package in 2012.

[Translation]

The Joint Chair (Ms. Boivin): So, it is the proposal on the table. All in favour of that?

Senator Harb: Usually we work by consensus. There is no problem giving them a bit of time because they are cooperating. It took us almost eight months to give them an answer. And now we are telling them that they have 30 days. But what were we doing for all that time? I am in favour of giving them time. We ask the question, we say thank you for what you have done so far, and that is as far as we go for the moment.

The Joint Chair (Ms. Boivin): Are you all right with that? Senator Harb makes a good point. The last correspondence came from them. It took us seven or eight months before we even reacted to it, if you think about it. Nothing is stopping us, maybe we have a consensus, from asking our legal counsel to say that it would be easy to separate the two and maybe one could be moved faster than the other. Then everyone would be happy. Does that work for you?

Hon. Members: Agreed.

The Joint Chair (Ms. Boivin): Excellent. Thank you.

[English]

SOR/2007-206 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE HAZARDOUS PRODUCTS ACT (FLAME RESISTANCE TEST METHOD)

(For text of documents, see Appendix J, p. 2J:1.)

Mr. Bernhardt: The situation on this file is identical to one at the last meeting of the committee. This is another regulation made under the old Hazardous Products Act that incorporated a Canadian General Standards Board standard as amended from time to time. The committee had taken the position that there is no authority for that sort of open incorporation by reference in the Hazardous Products Act. The department always maintained that it did have that authority. We now have the new Canada Consumer Product Safety Act that came into force in June. It expressly provides that documents may be incorporated by reference as amended from time to time.

The new CCPSA does not retroactively validate existing regulations. The question at the last meeting on the identical situation was whether the committee wanted to insist that they be re-enacted or whether it would accept the inclusion in the new act of the provision permitting this open incorporation by reference as a satisfactory outcome.

The latter approach was decided at the previous meeting, and I suggest, having set that precedent, that the same would be true on this file. If members concur, we close the file.

[Translation]

The Joint Chair (Ms. Boivin): Is that all right with everyone? Do we have consensus?

Hon. Members: Agreed.

The Joint Chair (Ms. Boivin): So the file is closed.

[English]

SOR/2007-282 — DIRECTIVE TO THE CANADIAN NUCLEAR SAFETY COMMISSION REGARDING THE HEALTH OF CANADIANS

(For text of documents, see Appendix K, p. 2K:1.)

Mr. Bernhardt: This directive requires the Nuclear Safety Commission to take into account the health of Canadians who depend on nuclear substances when the commission regulates production, possession and use of nuclear substances.

The Nuclear Safety and Control Act authorizes the Governor-in-Council to issue directives on policy matters with respect to the objects of the commission. The question to be answered is whether this directive deals with a matter that is within the objects of the commission. The objects and the purpose of the act are set out specifically in sections 3 and 9 of the act. They are set out in their entirety in the note that accompanies this morning's materials.

In summary, the situation is as follows: The act requires the commission to keep the inherent risks to health associated with the use of nuclear substances at a reasonable level. The directive directs the commission in doing so to consider the benefit to the people who rely on medical isotopes. Does the commission have the mandate in regulating the industry to keep the risk of these activities to a reasonable level to consider the benefits? If it has the mandate, then the directive is perfectly valid. If it does not have, then the directive directs the commission to do something that the commission is not authorized to do and, therefore, would be unlawful.

The discussion centres on the parliamentary record from the time when this act was passed. There is some indication that it was not intended that the commission conduct a cost benefit analysis but that it set safety standards only. The department's reply tries to downplay the use of the parliamentary record. It would be strange if a parliamentary committee did not look at the parliamentary record when trying to interpret an act passed by that Parliament. I also note that having sought to downplay it, the department goes on to rely on the parliamentary record to support its view.

The note also explains that from the discussions when the bill was in committee, there is evidence to conclude that what was intended was that the commission could consider the benefits of nuclear energy in carrying out its mandate but was not required to consider any particular benefit. When you combine that with the power given to the Governor- in-Council to issue directives to the commission, the commission could then be directed to consider a particular benefit. Rhetorically, you could ask whether you can decide if a level of risk is reasonable in the first place without taking into account the potential benefits of taking the risk. It may be seen to be part and parcel of the same question.

As the note concludes, if the committee considers that interpretation of the act has merit, it could conclude that the directive is legal. If that is the conclusion of the committee, we can close this file.

Senator Harb: It is interesting because there is a small gray area. They can delegate the authority to the Governor-in- Council or have it in the regulations. They are trying to play both sides of the issue. In the end, we should close the file.

Mr. Saxton: I agree that we should close it. I agree that the committee should look at parliamentary proceedings if they are clear, but in this case, they are not so clear so I agree we should close the file.

The Joint Chair (Ms. Boivin): Excellent.

[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 full text of documents, see Appendix L, p. 2L:1.)

SI/2010-18 — WITHDRAWAL FROM DISPOSAL, SETTING APART AND APPROPRIATION OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (REINDEER GRAZING RESERVE) ORDER

(For full text of documents, see Appendix M, p. 2M:1.)

Ms. Borkowski-Parent: With the permission of the committee members, I will deal with files SI/2009-94 and SI/ 2010-18 together, because they are very closely linked.

In the initial letters, some drafting discrepancies had been identified, specifically between the French and English versions. The department intended to make the requested amendments in the 2010 financial year, but was unsuccessful. The department attributes this to delays in its work schedule.

However, the department has undertaken to make the amendments by the end of the current financial year. We could send them a letter enquiring as to the progress in the matter.

The Joint Chair (Ms. Boivin): In these two files, they do not give us any really precise dates, so let us ask them to reply within 30 days. Is that all right?

Hon. Members: Agreed.

The Joint Chair (Ms. Boivin): The next item is SOR/2003-355.

SOR/2003-355 — OFF-ROAD SMALL SPARK-IGNITION ENGINE EMISSION REGULATIONS

(For full text of documents, see Appendix N, p. 2N:1.)

Ms. Borkowsi-Parent: This file covers six drafting issues and one substantive issue. In 2006, the department had already promised to address the issues raised. The time frame for amendments has systematically been changed since then. But draft regulations responding to the committee's objections were published in Part I of the Canada Gazette on April 2, 2011.

The department's last letter, which you will find in the materials provided for the meeting, notes these regulations will be enacted in early 2012. Counsel will therefore be able to follow the developments closely in this file.

The Joint Chair (Ms. Boivin): Does everyone agree?

Hon. Members: Agreed.

[English]

SOR/94-753 — INDIAN OIL AND GAS REGULATIONS, 1995

(For text of document, see Appendix O, p. 2O:1.)

Ms. Borkowski-Parent: There were 19 issues raised in counsel's 2006 letter, and action was promised for the majority of these points. Amendments to the regulations were originally deferred until after the enactment of amendments to the Indian Oil and Gas Act in May 2009. The original time frame presented was 12 to 18 months from the revision of the enabling act, which would have brought us to December 2010. In its letter dated April 1, 2011, the department estimates the overhaul of the regulations to be completed in 2014.

There remains one outstanding question for which the committee has not obtained an answer because consultations with regard to the specific provision were ongoing. Therefore, a letter could be drafted to the department inquiring as to their progress, asking if they could confirm the 2014 time frame, and seeking a response to the remaining issue.

Senator Harb: My only comment is that the act never made its way back to Parliament for review; it has never been before Parliament again, is that correct?

Ms. Borkowski-Parent: The act was amended in May 2009.

Senator Harb: At that time, why they did not choose to incorporate the concerns of the committee as part of the new act that was amended or reviewed?

Ms. Borkowski-Parent: I think they wanted to wait for the enactment of the modifications to the act to see if it would resolve some of the issues in the regulations. For those issues that are not resolved, another step is to amend the regulations. It made sense to wait until after the amendment to the act, but since 2009, it has not been done.

[Translation]

The Joint Chair (Ms. Boivin): Any other comments? So we will go ahead with the recommendation of our counsel?

Hon. Members: Agreed.

The Joint Chair (Ms. Boivin): Good. Next point, concerning the general regulations on national historic parks.

[English]

SOR/2005-206 — REGULATIONS AMENDING THE NATIONAL PARKS OF CANADA FISHING REGULATIONS

(For text of documents, see Appendix P, p. 2P:1.)

Mr. Bernhardt: An amendment has been promised to correct an omission in the regulations. The regulations make reference to an aggregate catch limit for salmon in Gros Morne National Park. However, they fail to actually establish such a limit. The amendment was added to a package of other amendments, and public consultation on these was supposed to take place in the fall and winter of 2009.

In March 2010, the agency reported that it expected the amendments to be completed by early fall 2010. Then last October, the committee was advised that other amendments had been identified and were to be added to the package. Work was ongoing and the committee would get a further update by January.

In fact, that update was provided in April. It was to the effect that things were taking longer than expected. No forecast completion date was given.

Perhaps the agency could be asked to now provide a firm completion date.

Senator Moore: Give them 30 days.

[Translation]

The Joint Chair (Ms. Boivin): Does everyone agree with Senator Moore's suggestion of 30 days?

Hon. Members: Agreed.

The Joint Chair (Ms. Boivin): To respond, exactly.

[English]

SOR/2008-12 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG AND CHICK LICENSING REGULATIONS

(For text of document, see Appendix Q, p. 2Q:1.)

Ms. Borkowski-Parent: Only one issue of drafting remains on this file. Amendments were originally promised for the end of 2010, but to no avail.

It is currently the intent of the Farm Products Council to amend the federal-provincial agreement before proceeding to the modifications to their regulations. An estimated time frame of the end of 2011 for the review of the federal- provincial agreement was provided in December of last year.

A letter could be drafted asking if any progress has been made with regard to the federal-provincial agreement and seeking a time limit for the amendment of the regulations.

[Translation]

The Joint Chair (Ms. Boivin): Okay. Next, the regulations amending the industrial design regulations.

[English]

SOR/2008-268 — REGULATIONS AMENDING THE INDUSTRIAL DESIGN REGULATIONS

(For text of documents, see Appendix R, p. 2R:1.)

Mr. Bernhardt: In the course of reviewing this instrument, it was discovered that the English and French versions of the relevant enabling provision in the act were not to the same effect. The result was that a provision that allows the Commissioner of Patents to specify the electronic format for an application would be authorized under the English version of the act, but would not be authorized under the French version.

An amendment was promised to the French version when the act was next amended. A preliminary study is apparently under way of a number of amendments to this act.

At the same time the department has advised that the amendment cannot be made via the miscellaneous statute law amendments process because, in its words, it could be seen to be ``controversial.'' I think what is meant by that is that it might be construed as enlarging the scope of the regulation-making power. That would therefore be a substantive change and would not fall within the types of amendments that could be made through the miscellaneous process.

It follows that if the act at present is not broad enough to permit the making of the provision of the regulations, then you have an ultra vires regulation. I am not sure the department can have it both ways. Either the amendment is simply a housekeeping matter, in which case you have a valid regulation, or the amendment is controversial or substantive, the implication being that the provision in the regulations is not authorized at present because the act is not broad enough to permit it.

The general rule when reading bilingual legislation is you try to find the meaning that the two versions share. In this case, that would obviously be the more restrictive of the two interpretations and lead to the conclusion that the regulation is unlawful.

Perhaps this could be put to the department in the hopes of speeding up action, and again make the suggestion that if the amendment to the act is not to proceed shortly, the obvious course of action is to revoke the provision in the regulations in the interim.

[Translation]

The Joint Chair (Ms. Boivin): Do we have a consensus?

Hon. Members: Agreed.

The Joint Chair (Ms. Boivin): Now point number 10: Action Promised.

[English]

SI/2010-83 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (DEHCHO FIRST NATIONS) ORDER

(For text of documents, see Appendix S, p. 2S:1.)

SOR/2000-374 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

(For text of document, see Appendix T, p. 2T:1.)

SOR/2006-147 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY

(For text of documents, see Appendix U, p. 2U:1.)

SOR/2010-257 — ORDER AMENDING THE EXPORT AND IMPORT PERMITS AND CERTIFICATES FEES ORDER

(For text of documents, see Appendix V, p. 2V:1.)

SOR/2010-310 — REGULATIONS AMENDING THE REPORTABLE DISEASES REGULATIONS

(For text of documents, see Appendix W, p. 2W:1.)

Mr. Bernhardt: We can go through these individually or, if members prefer, we can continue the practice of dealing with them as three groups.

Under Action Promised, there are a total of nine specific amendments promised in connection with the five instruments listed. Progress on these is always followed up after the meeting as a matter of course.

In particular, I draw members' attention to SOR/2003-74. Agreement here has finally been attained to make amendments to resolve several matters the committee has been chasing after since 2003.

In addition, amendments are promised in connection with SOR/2006-147 to clarify the criteria for certain inspections and ensure that conditions, permits and licences do not the depend on the subjective discretion of the minister and his officials.

Point 2 of counsel's November 29, 2010 letter summarizes the relevant legal principles there.

SOR/2008-315 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF INDUSTRY REGULATIONS

(For text of documents, see Appendix X, p. 2X:1.)

SOR/2010-89 — REGULATIONS AMENDING THE PUBLIC SERVICE EMPLOYMENT REGULATIONS

(For text of documents, see Appendix Y, p. 2Y:1.)

SOR/2011-48 — REGULATIONS AMENDING THE REPORTING OF IMPORTED GOODS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix Z, p. 2Z:1.)

SOR/2011-71 — REGULATIONS AMENDING THE SECURE ELECTRONIC SIGNATURE REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix AA, p. 2AA:1.)

Mr. Bernhardt: Turning now to Action Taken, there are four instruments listed. Taken together, they make 43 amendments that were requested by the committee. These include the deletion of two provisions the committee considered to be ultra vires, as well as the removal of discretionary powers.

Also included in the Reporting of Imported Goods Regulations are procedural guarantees for people who are refused an exemption from the requirement to provide information in advance, or whose exemption is suspended or cancelled.

SI/2011-62 — ORDER FIXING THE DATES OF COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2011-63 — LORNA SHOYAMA TAX REMISSION ORDER

SI/2011-64 — MICHELINE POULIN REMISSION ORDER

SI/2011-65 — TOBIE PELLETIER REMISSION ORDER

SI/2011-66 — CERTAIN MARINE CARRIERS REMISSION ORDER, 2011

SI/2011-67 — ORDER TRANSFERRING TO SHARED SERVICES CANADA THE CONTROL AND SUPERVISION OF CERTAIN PORTIONS OF THE FEDERAL PUBLIC ADMINISTRATION IN THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

SI/2011-68 — ORDER DESIGNATING THE PRESIDENT OF SHARED SERVICES CANADA AS DEPUTY HEAD IN RESPECT OF THAT ENTITY

SI/2011-69 — ORDER DESIGNATING SHARED SERVICES CANADA AS A DEPARTMENT AND THE PRESIDENT AS THE DEPUTY HEAD FOR PURPOSES OF THE ACT

SI/2011-70 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2011-71 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2011-72 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF PUBLIC SERVICE OF CANADA ORDER

SOR/2011-34 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE I TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

SOR/2011-35 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE I TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

SOR/2011-40 — REGULATIONS AMENDING THE FISHING AND RECREATIONAL HARBOURS REGULATIONS

SOR/2011-44 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2011-49 — ORDER ADDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (KAHKEWISTAHAW)

SOR/2011-50 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SAWBRIDGE)

SOR/2011-53 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

SOR/2011-58 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1627 — SCHEDULE F)

SOR/2011-62 — REGULATIONS EXEMPTING A DEPARTMENT AND PARENT CROWN CORPORATIONS FROM THE REQUIREMENTS OF SUBSECTIONS 65.1(1) AND 131.1(1) OF THE FINANCIAL ADMINISTRATION ACT

SOR/2011-63 — ORDER 2011-87-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2011-64 — ORDER 2011-66-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2011-66 — ORDER EXTENDING EXPORT DEVELOPMENT CANADA'S TEMPORARY DOMESTIC POWERS

SOR/2011-70 — ORDER AMENDING THE AUTOMATIC FIREARMS COUNTRY CONTROL LIST

SOR/2011-72 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2011-73 — REGULATIONS AMENDING THE COMPENSATION FOR DESTROYED ANIMALS REGULATIONS

SOR/2011-76 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2011-80 — REGULATIONS AMENDING THE AUTHORITY TO SELL DRUGS FEES REGULATIONS

SOR/2011-93 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1624 — SCHEDULE F)

SOR/2011-94 — RULES AMENDING THE BANKRUPTCY AND INSOLVENCY GENERAL RULES

SOR/2011-100 — PRESCRIBED PRODUCTS REGULATIONS

SOR/2011-101 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2011-104 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2011-106 — ORDER 2011-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2011-153 — ORDER 2011-112-07-01 AMENDING THE DOMESTIC SUBSTANCE LIST

SOR/2011-158 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

SOR/2011-159 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2011-160 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2011-161 — ORDER AMENDING PART II OF SCHEDULE VI TO THE FINANCIAL ADMINISTRATION ACT

SOR/2011-162 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT

SOR/2011-163 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

Mr. Bernhardt: There are listed 41 instruments that have been reviewed by counsel and found to comply with all the committee's criteria. As always, we have copies of those available at the meeting if members wish to see any of them.

The Joint Chair (Ms. Boivin): Excellent. Are there any comments? Everything is good? This meeting is adjourned.

(The committee adjourned.)

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