REGS Committee Meeting
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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 3 - Evidence - November 3, 2011
OTTAWA, Thursday, November 3, 2011
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. for the review of statutory instruments.
Senator Bob Runciman and Ms. Françoise Boivin (Joint Chairs) in the chair.
The Joint Chair (Senator Runciman): I have a message to deliver. Due to the number of members at committee, there is no room at the table for stenographers. They are seated behind the members opposite in that corner. Stenographers are not able to see the name cards of members. It is important for their transcription that they properly attribute the remarks to the right person. My joint chair and I will identify clearly each speaker for the record. At times there may be a delay but please wait until your name is called prior to speaking.
REQUESTS FOR PROGRESS REPORTS FROM THE DEPARTMENT OF THE ENVIRONMENT
Peter Bernhardt, General Counsel to the Committee: In the July 20 letter, the official who acts as designated instruments officer, who is the point of contact with the committee for the Department of the Environment, suggested that requests on behalf of the committee for progress reports in advance of the expiration of previously provided timelines creates, in his words, "unnecessary administrative burdens." He asks the committee to refrain from this practice other than in those circumstances in which the proposed timelines are not considered satisfactory. Of course, the purpose in seeking a progress report as a forecast time for addressing a matter approaches is to find out whether the previously given timeline is still current and applicable. Leaving matters until the time for taking action has passed has led to the committee's concerns being set aside or forgotten. Interim requests for progress reports are a means by which the committee can be assured that progress is being made.
The department's follow-up letter of September 8 sets out the various steps and the timelines that they have put in place to deal with correspondence from this committee. That is all well and good. The fact remains that experience has shown that despite the statement that the committee is always informed when a timeline is not met or has been revised, and wherever that happens an update is provided, this is rarely done without prompting from the committee. There is a specific example mentioned in the September 8 letter and the relevant correspondence is in the materials. In that case, some promised amendments were pre-published for notice and consultation in Part I of the Canada Gazette. There was a 60-day notice and comment period. That period passed. Two months after it had passed, having heard nothing, we wrote and asked for a progress report because the amendment had still not been made. I find it difficult to see how this can be seen to be premature or how this would occasion any heavy burden on the department. I suppose I would also note in connection with that particular example that these amendments had previously been promised for 2010, in the department's words, "at the latest."
In any event, I suppose by way of recommendation, the department could be advised that the committee appreciates that the department has limited resources and that the committee has instructed its counsel to be cognizant of the procedures the department has in place, while also ensuring that matters are pursued diligently and in accordance with the long-standing practices and best interests of this committee.
The Joint Chair (Senator Runciman): Sounds like a good lawyer's letter. Is there further comment or issue with the direction suggested by counsel?
Mr. Saxton: Are you recommending that we write again?
Mr. Bernhardt: I suggest that the committee write back to tell the department it recognizes that the department, like all departments, has limited resources and that the committee instruct its counsel at this point to be cognizant of the department's procedures, while ensuring that counsel pursue matters diligently and in accordance with the committee's long-standing practices.
Senator Moore: Why do you say it has limited resources?
Mr. Bernhardt: It goes without saying that no one has unlimited resources.
Senator Moore: Why give them another out?
Mr. Bernhardt: It is an out they are already trying to take.
Senator Moore: Sounds pretty false to me, but whatever the committee wants to do.
Mr. Dionne Labelle: Is this not the department that underwent significant cuts recently? Could that in part explain the delay in responding?
The Joint Chair (Senator Runciman): Are we in agreement with the suggested approach to the first instrument?
Hon. Members: Agreed.
SOR/87-58 — LAURENTIAN PILOTAGE AUTHORITY DISTRICT NO. 3 REGULATIONS
SOR/2008-80 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS
(For text of documents, see Appendix A, p. 3A:1)
Mr. Bernhardt: On the second instrument, the joint committee questioned the purpose of section 32 of the Laurentian Pilotage Authority Regulations. All this provision seems to do is state that the authority, who has the power to conduct examinations, can conduct examinations if and when it considers it to be appropriate. This seems to go without saying. The Department of Transport informed the committee that the authority was undertaking complete revision of all its regulations, although it was unable to give a forecast timeframe. In view of this, the committee then asked for particulars of the authority's intentions with regard to section 32, and whether it would agree to resolve the section 32 question separately should this general overhaul encounter some delays.
In the past, the committee had some difficulty getting precise information from the authority, so the committee also made it known that if the information could not be provided in writing within 30 days it would ask representatives from the authority to appear in person. In the March 30 letter, the authority's CEO accepted the committee's invitation in order to answer the questions in person. However, on May 30 the Department of Transport advised that consultation on this revision of the regulations was underway and a draft was to be presented to the board of the authority in July. In view of this update, and the fact that the concern here was simply one provision in one regulation, that appearance seems to be pointless. The question for members this morning is whether they still wish to have representatives appear in person, or for now at least simply ask for a written progress report.
Senator Harb: Progress report.
Mr. Bernhardt: The situation on the other file is quite similar. For the reasons explained in the note, the District No. 3 Regulation has been obsolete and incapable of being applied since 1991. Again, the committee asked the authority if it would proceed with revoking this regulation separately as opposed to part of the overall review. I should advise that earlier this week we had a phone call from the CEO of the authority. At that time he advised that the regulation is to be revoked. He is still willing to appear if that is what members want, although it seems all that is required is a simple request as to progress and a timeline.
Senator Harb: Progress and time would be fine. We understand the fact that they are moving on the file. Obviously, giving them the option to show up or fix it seems to be working.
Mr. Bernhardt: He seems very eager to come to Ottawa.
Mr. Saxton: I have been on the committee for three years. We have only ever had one witness come before us. It was not a pleasant situation. It was an extraordinary situation. There is a lot of expense involved in having a witness come here. This is the first time I hear of a witness who is actually eager to come. The last one certainly was not. I would say we should try to avoid the added expense of having the witness if it is not absolutely necessary.
The Joint Chair (Senator Runciman): Are we all in agreement on that?
Hon. Members: Agreed.
SOR/96-44 — DUTIES RELIEF REGULATIONS
(For text of documents, see Appendix B, p. 3B:1)
Mr. Bernhardt: Section 101 of the Customs Tariff grants relief from duties with respect to certain goods returned to Canada after they have been exported. Section 20 of the regulation sets out the documentation required as proof of export. Following the adoption of a new Customs Tariff, the new tariff included a provision stating that an application for relief under section 101 must be accompanied by evidence satisfactory to the minister. This led us to suggest to the Canada Border Services Agency that section 20 should be taken out. Under the new Customs Tariff it is the minister, at his discretion, who is to decide what was to be accepted and not for the Governor-in-Council to make a regulation dealing with this. Initially the agency agreed and that was what was to be done. The agency then advised that things were more complicated than it first appeared and there may be amendments to the Customs Tariff as well as to the regulations.
It turned out that no one had at first picked up on section 133(a)(ii) of the Customs Tariff, which gives the Governor-in-Council the power to make regulations prescribing what constitutes satisfactory evidence of export. This may have been because most of the correspondence dealt with the French version of the act. Only the English version expressly says that this is to be done for the purpose of section 101. Nevertheless, that is something that should have been picked up earlier on. We should have recognized it. Given that, it would seem that the situation is that the minister has the discretion to decide what documents will be accepted. However, the Governor-in-Council has the power to make regulations putting limits on that discretion. That is what section 20 does. So viewed, the provision would seem fine and there is no need to revoke it. I suppose the only suggestion that might go back to the Canada Border Services Agency is they could consider amending the French version of the Customs Tariff to follow the English version. They can clearly state that those regulations are to be made for the purposes of section 101 of the tariff, to prevent any confusion like this ever arising on someone else's part in the future.
The Joint Chair (Senator Runciman): Do you feel that is necessary?
Mr. Bernhardt: It could be done as a suggestion. I am not sure if this is something the committee would want to pursue year after year. In the course of writing back and saying the committee is now of the view that section 20 is fine, it could add as a tag at the end that it might be thought desirable, and leave it at that.
Senator Braley: Are these sorts of things not clarified in interpretation bulletins most of the time?
Mr. Bernhardt: Yes, but the interpretation bulletin will have to interpret the law as the source.
Senator Braley: Normally how we get our stuff for import and export is read in those bulletins.
Mr. Bernhardt: That is a very good point. It may be a case where, having concluded that it is all right, the committee may well decide that it is clear enough as it is. That is fine as well.
Mr. Brown: It is safer to avoid this from happening in the future and to make sure it is reconciled in French and English so the translation is accurate in both languages. It is better safe than sorry.
The Joint Chair (Senator Runciman): Are you supporting counsel's recommendation?
Mr. Brown: Yes.
The Joint Chair (Senator Runciman): Is it agreed? No further discussion?
Hon. Members: Agreed.
SOR/2011-5 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (LAX KW'ALAAMS)
(For text of documents, see Appendix C, p. 3C:1)
Shawn Abel, Counsel to the Committee: As this order had not been registered by the Clerk of the Privy Council within the time period required by the Statutory Instruments Act, an explanation was sought from the department. While the failure to transmit this instrument to the clerk within the required period did not invalidate it, it still represents a breach of the statutory duty. In this case the order would not come in force in any case until it was actually registered by the clerk. The March 18 reply describes this event as an oversight. The department commits to be more vigilant in the future and to remake an instrument in the future if it does not meet the requirements of the act. If members are satisfied with that commitment, this file could be closed. Of course, counsel will monitor future instruments for their adherence to the Statutory Instruments Act.
The Joint Chair (Senator Runciman): Agreed?
Hon. Members: Agreed.
SOR/2001-32 — CONTROLLED GOODS REGULATIONS
(For text of documents, see Appendix D, p. 3D:1)
Mr. Bernhardt: Under the Defence Production Act, unless registered or exempt, no person shall knowingly examine or possess a controlled good or transfer a controlled good. These regulations then govern this system of registration and exemption. Initially there were 16 points raised in connection with the regulations. The committee had been led to believe that there was an agreement to make amendments addressing all 16. Subsequently, the department indicated that two were in fact to be addressed through amendments to the act itself. Amendments were eventually made last year. However, when we reviewed these, there were five matters that had not been dealt with. These are the ones numbered 5 and 12 to 15 in the correspondence. These were of course then subject to further correspondence, which is summarized in the note in the materials for this morning.
Starting with point 5, several provisions require that something be done without delay. The act says that these things are to be done in the time prescribed by regulation. It seems doubtful whether requiring something to be done without delay prescribes a time for doing that thing. Taken literally, it allows no time for doing that thing because it has to be done without delay.
The department argues there are many provisions like this in federal regulations; and that is true. However, it is not really the point. The question in each instance is whether the requirement is authorized by the particular enabling act. There is a distinction between those provisions that have been objected to here and provisions that govern other situations where Parliament has not provided for the person to comply within the time prescribed by regulations. In fact, we are dealing with two of those in the correspondence at points 13 and 15. I would suggest by contrast that on those points, the department's new position is acceptable and those points are satisfactory.
Point 12 concerns the need for the regulations to distinguish between circumstances that will lead to suspension of a registration or exemption and those that will lead to its cancellation. This is an issue the committee sees fairly frequently. It has always taken the position that you need to have this sort of distinction in the regulations to guarantee that people in identical positions are not treated differently, i.e., two people find themselves in an identical situation and one may be suspended and one may be cancelled. There is an element of arbitrariness. A number of federal regulations have a scheme that distinguishes between the two.
Point 14 deals with reinstatement of registrations and exemptions. The minister may do this if it is shown that the reason for the suspension or revocation no longer exists or the decision to suspend or revoke should never have been made in the first place. The committee asked why there should be a discretion in those cases to refuse. If there are going to be circumstances where reinstatement will be refused, even though the reasons for the suspension or revocation do not exist or it was wrong in the first place, they should be in the regulations. If there are no such circumstances and the person is found to be in compliance, they should be required to be reinstated.
That is another one that should be pursued. It is the same issue of guaranteeing equal treatment for people in equal situations. The department's reply also states that some people will simply be reinstated. Other people will be required to begin the application process again from the start. There is no mention of any of that in the regulations.
In the end, the entire process for suspensions, revocations and reinstatements needs to be reviewed. The note suggests a possible template that could be used is found in the Organic Products Regulations. If the committee wants to pursue these issues, perhaps the department could be referred to those regulations as providing a model for something they could try to follow here.
Mr. Albas: Counsel has offered some wise advice that the department should be made aware of. We should write back to the department and outline our dissatisfaction with the current situation and that we realize some helpful tips or advice can be found in other legislation that may help them and us to fulfill our roles.
The Joint Chair (Senator Runciman): Are there any observations? Are members agreed?
Hon. Members: Agreed.
SOR/2001-281 — BY-LAW NO. 7 RESPECTING THE LARGE VALUE TRANSFER SYSTEM
(For text of documents, see Appendix E, p. 3E:1)
Mr. Abel: Three outstanding points were put to the department for reconsideration following the committee's last review of this file. The first point concerns the statement in section 37 of the bylaw that this provision applies subject to any statutory or regulatory constraints. While the committee previously noted that this condition is vague and may be ambiguously interpreted, the department has insisted that it must remain general in nature. The department has explained that this could refer not only to statutory and regulatory provisions but also, for example, to directives from the Office of the Superintendent of Financial Institutions.
Consequently, the committee asked for an assurance that the institutions subject to the bylaw would have a clear understanding of the scope and meaning of this condition. The department's May 5 letter contends that the relevant financial institutions are sophisticated and highly regulated entities that should be aware of all applicable obligations. That being the case, this could be taken as a satisfactory response.
The second point concerns a statement in section 51 that nothing in the bylaw affects any right or remedy under the general law, including the law governing mistake, unjust enrichment or restitution. The committee previously noted that this statement serves no legal purpose as there is no authority in any case for the bylaw to actually pronounce on or affect civil liability. This statement is not merely superfluous; it is potentially misleading.
The department insists that this statement should remain in order to provide clarity and guidance to the regulated institutions. It seems quite at odds with the department's assurance in connection with the first point that these institutions are sophisticated entities that are well aware of their legal rights and obligations. In any case, a promise has been given to amend the provision to expressly indicate that this statement is merely for greater clarity. It is, however, up to members as to whether that would be an acceptable result or if the statement should simply be removed.
On the third point, members should be aware that the English translation of the note provided mistakenly refers to the general manager of the Canadian Payments Association as the president. This point deals with section 63, which provides for a participant institution in the transfer system to be suspended following certain conditions, unless the general manager indicates otherwise. In other words, the general manager is granted discretion to decide whether an institution would be suspended. The committee previously asked under what circumstances the general manager's discretion should be exercised. At first the department was unsure and stated that the general manager had never issued an exemption under this provision. Further questioning led to the department stating that any such exemptions would be governed by the general purpose of the association set out in section 5(2) of the Canadian Payments Act.
The department further asserted that the general manager must be empowered to prevent the suspension of an institution if that would negatively impact the operation of the association's clearing and settlement systems. This latter formulation was seen by the committee previously as a clear description of the power granted by section 63 to the general manager, as can be seen in the correspondence before committee today. The department is reluctant to add this description to section 63.
The only given reason not to do so is the suggestion that this might contradict the general purpose of the association set out in the act. It is difficult to imagine how describing the general manager's intended discretion in this case as preventing negative impacts on the clearing and settlement systems could possibly contradict the purpose of the association, which is to promote the efficiency, safety and soundness of those very systems. This is simply the manner in which the general manager is actually intended to make decisions under section 63.
The department also notes that the Governor of the Bank of Canada can issue, under a different act, directions to the association, although not specifically to a general manager. This hardly seems relevant. What matters here is how the discretion is initially framed in the bylaw that grants it. It would therefore appear that section 63 should be amended to provide that a participant institution will be suspended unless the general manager determines that doing so would negatively affect the transfer and settlement systems. All that being the case, a further letter could be drafted pursuing point 3 and, if members wish, the earlier points as well.
Senator Harb: I do not know whether they are getting legal advice or doing the interpretation on their own. There seems to be quite a bit of confusion on their side. I do not know whether it would be wise to put in a call to ensure that they are seeking and getting the proper legal advice in terms of the interpretation of what they are telling you. Definite communication has to go out to them to put the points on the line, because there is a lot at stake.
I can understand the ADM communicating with you, but to what extent are they receiving proper legal advice? I am not sure.
Mr. Bernhardt: Certainly in any letter back to the department, we can extend the offer to meet with them.
Senator Harb: I do not think it is a lack of will on their part. They wanted to resolve the matter but it seemed to be a bit of a grey zone. Perhaps they could benefit from your advice or the advice they will receive from their end.
Mr. Bernhardt: In the case of point 3, you may be right. They may be under the impression that the committee is asking for more than it actually is. It is simply that if that is what they say the decision is based on, put that in the regulations to say this is what the decision will be based on. It is no more than that.
Senator Harb: Absolutely.
Mr. Bruinooge: I guess that part of what has been said in relation to section 37 is acceptable. However, for section 63 perhaps we could indicate to them in writing to review one more time. Then I think we will just wait to see what is said.
The Joint Chair (Senator Runciman): Are you also talking about sitting down with them to make sure there is clarity here?
Mr. Bernhardt: We can certainly in the letter extend the offer in the invitation. We are certainly always available to do that.
Senator Moore: That was to be my comment. Have a letter on the technical stuff, but also to offer to meet. We might be able to wrap the whole thing up in one meeting.
Mr. Bernhardt: I take it from Mr. Bruinooge's comment that point 1 is acceptable to members. Would the same apply to point 2? What would remain would be point 3?
The Joint Chair (Senator Runciman): That is the consensus.
Hon. Members: Agreed.
SOR/2001-390 — FORM OF PROXY (BANKS AND BANK HOLDING COMPANIES) REGULATIONS
(For text of documents, see Appendix F, p. 3F:1)
Mr. Bernhardt: These regulations contain a number of references to specific provisions in the Canada Business Corporations Regulations. Those regulations were repealed and replaced by the Canada Business Corporations Regulations 2001. There remains a need to update these references. The Department of Finance has been working on the necessary amendments. In April of 2010, it advised it was aiming to complete them by the middle of 2010. By May 2011 the amendments had not been made, and the department reported this was due to a high number of priority files. Then last July, the department indicated that its intent now is to wait until a final decision is made on the process for implementing a national securities regulator. This could require other amendments to the regulations and the whole thing could be lumped together.
Under the Interpretation Act, the outdated references to the old regulations are to be read as referring to the equivalent provisions in the new regulations, so legally there is not a problem here. It is just that on its face you have the whole series of outdated references.
It is very much a matter of housekeeping. That being said, I would suggest the department is clearly proposing to put off these corrections, perhaps indefinitely. If members are not willing to be that patient, perhaps it could be pointed out and the suggestion made that updating the obsolete references should proceed in the interim, regardless.
Senator Harb: I do not mind if it was a big deal to fix it. The fact is, putting it off for something that may or may not happen — which we believe is not going to happen — is troublesome. I would go back to them and say in light of the fact that this may or may not happen. We want you to take action.
Senator Moore: Is not there a reference case before the Supreme Court of Canada now, involving a proposed national securities regulator?
Mr. Bernhardt: I think there was.
Senator Moore: I do not know. The decision has not come back. Depending on what that says, it may have some impact on what course of action we should seek here.
Mr. Bernhardt: I am not sure what the effect of dissolution might have on that. There was a bill, if memory serves. I suppose that bill would have been the focus of the litigation. The bill died. I do not believe it has yet been reintroduced, so whether that meant that the litigation was suspended, I simply do not know. I am speculating. We will look into that.
Senator Moore: Thank you.
Mr. Wilks: Having read this, I would suggest that the department may want to go ahead with the changes and then figure out if a national security regulator will be created. Then we can move along from there. It seems like we are redundantly waiting for something to happen. Let us just get it going here.
The Joint Chair (Senator Runciman): Is there any disagreement to that approach? Is it agreed?
Hon. Members: Agreed.
SOR/2010-202 — FERRY-BOATS, TANKERS AND CARGO VESSELS REMISSION ORDER, 2010
SOR/2010-203 — CERTAIN SHIPS REMISSION ORDER, 2010
(For text of documents, see Appendix G, p. 3G:1)
Mr. Abel: Counsel brought to the attention of the department a discrepancy between the French and English versions on both these remission orders, each of which has a one-time effect. The department promises that all future orders will incorporate the suggested correction. As such it seems that these files could be closed.
The Joint Chair (Senator Runciman): Agreed?
Hon. Members: Agreed.
NOTICE AMENDING THE CANADIAN FOOD INSPECTION AGENCY FEES NOTICE
(For text of documents, see Appendix H, p. 3H:1)
Mr. Abel: As the majority of matters raised by the committee in relation to the fees notice had finally been resolved by new amendments, counsel wrote to confirm that the remaining outstanding points would soon be resolved and to seek an expected completion date for those amendments. The April 26 letter confirms that all except one point will be resolved by future amendments, although no timeline is provided for doing so. It is only stated that this is to be part of a broader exercise to modernize fees. The agency also indicates that no amendment to items 2 and 3 of the table to part 9 of the fees notice will be necessary after all and their explanation in this regard seems accurate. At this point perhaps a letter could be sent seeking a timeline for the completion of the remaining amendments.
The Joint Chair (Ms. Boivin): Do we have a consensus?
Hon. Members: Yes.
The Joint Chair (Ms. Boivin): Good.
SOR/92-636 — LIST OF HAZARDOUS WASTE AUTHORITIES
(For text of documents, see Appendix I, p. 3I:1)
Mr. Abel: The department is this case intends to repeal the entire list of hazardous waste authorities. Proposed amendments to this effect were published on April 2, 2011 and the department's May 6 letter indicates that the repeal should be completed early next year. At this time, counsel could follow up on whether that remains the expected completion date, and monitor progress.
Senator Harb: I would not do anything like that. I would just wait. They said 2012 and I would wait until then.
Mr. Abel: We can do that.
The Joint Chair (Ms. Boivin): Okay?
Hon. Members: Agreed.
The Joint Chair (Ms. Boivin): Excellent.
Senator Moore: We will just monitor the file and then bring it forward.
Mr. Abel: We can bring it forward early in the new year and make contact with them if it has not been repealed. It will be done, of course.
SOR/98-443 — ENVIRONMENTAL ASSESSMENT REVIEW PANEL SERVICES CHARGES ORDER
(For text of documents, see Appendix J, p. 3J:1)
Mr. Bernhardt: The committee had questioned the validity of certain charges imposed for environmental assessment services. Rather than setting out the amounts in this order, in a number of instances the order simply incorporates whatever rates are set by other departments or organizations in that particular instance. The Environmental Assessment Agency has proposed amending the act to authorize a system for recovery of actual costs, which is what they are trying to do here. In April it advised that the minister had agreed that there should be such an amendment, and that the amendment had been drafted. At the same time, a preference was expressed to wait for whatever other amendments might follow from the parliamentary review of the act.
I understand that the House of Commons Standing Committee on Environment and Sustainable Development has now begun the review of the act. That is under way, and if members are satisfied it would simply be a matter of monitoring the progress of the review by that committee, and then checking the subsequent amendments to make sure they include this one.
The Joint Chair (Ms. Boivin): Agreed?
Hon. Members: Agreed.
SOR/2006-239 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS
(For text of documents, see Appendix K, p. 3K:1)
Mr. Abel: Amendments resolving four drafting and language equivalency issues in these regulations were expected to be completed by this autumn. As they have not yet been made, this file could be monitored to see whether the promised amendments are made by the start of December. If not, a progress report could be sought.
Senator Moore: Will you wait until December 1? If you do not hear something, you will write?
Mr. Abel: Yes. They stated that they will make the amendments by the end of the year, or during the fall season. Over the Christmas break, files tend to take a while. I would suggest giving them until December in case they make them in the next month.
Senator Moore: Thank you.
SOR/92-631—VINYL CHLORIDE RELEASE REGULATIONS, 1992
(For text of documents, see Appendix L, p. 3L:1)
Mr. Bernhardt: A number of amendments to these regulations to resolve defects in drafting and to provide greater clarification were first promised in 2000. Since then, the forecast completion day has been pushed back a number of times. In 2008, the department reported that another issue had arisen in the approvals process that required further analysis. Apparently this further analysis took some two years. Last January an expected completion date of summer 2011 was given. Now, in its most recent letter dated September 12, the department advises that, in its words, it is "hopeful that the amendments can be made by next summer."
Perhaps the committee could advise the department that it fully expects this deadline to be met this time. Beyond that, I am not sure what there is to.
Senator Harb: It is not as if they are uncooperative. They seem to be proactively cooperating. I give them kudos for that.
Mr. Bernhardt: Certainly, the issue for the committee with Environment Canada is never lack of response. The committee always receives a response, quite promptly.
The Joint Chair (Ms. Boivin): It is in the action. The name that I know best now is Mr. John Moffatt. I feel I know him personally.
Mr. Dionne Labelle: This is the third letter from the Department of the Environment since the meeting started. There is something going on with this department.
Mr. Bernhardt: In view of the first item on the agenda, I took it upon myself to pull out most of the environment files waiting to go to committee so that I could give members, for lack of a better term, a fuller flavour; but yes, you are quite correct.
Senator Braley: I have a comment on the technical expertise to handle the subjects before the committee. Even in my corporation, where we had lots of those things to deal with, we had to go outside and go outside until we actually find out the truth. It is very difficult to deal with it because much of the stuff is not static. It changes based on the environment that the particular chemical is in; so they need lots of time.
Senator Harb: I am struck by the January 2011 and September 2011 letters. They are exactly the same letters with only one change: 2011 was changed to 2012.
Having said that, it may be wise to send a letter and ask if we might get the same letter with the change to 2013.
Mr. Bernhardt: Certainly, we can do that.
Senator Harb: I want to give them the benefit of the doubt but nothing more than a change in the year has happened. Not a lot of effort went into changing one digit.
The Joint Chair (Ms. Boivin): Are we agreed on a letter?
Hon. Members: Agreed.
SOR/2000-184 — REGULATIONS AMENDING AND REPEALING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY, 2000-1 (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix M, p. 3M:1)
Mr. Abel: The committee for some time has sought amendments to the Feeds Regulations, the Seeds Regulations and the Fertilizers Regulations to the effect that labels required in the interests of health and safety be provided in both French and English to the users of these products. In July 2010, the committee received word from the agency that these amendments were being developed. The letter before members today indicates that these amendments are expected to be made by the end of 2012. These amendments have been pursued by the committee for nearly 11 years. It appears that this matter is making concrete steps towards a conclusion. At this time, a progress report could be sought from the agency.
Senator Moore: What do you think will happen? You say that amendments are expected by the end of 2012. What do we do between now and then? How do we know they will be made? We have not seen anything. What is the process and where is the progress, besides a letter?
Mr. Bernhardt: That question arose with the first item this morning. On the department's request that the committee wait until January 1, 2013 and then see if the amendment had been made, if it has not been made and nothing has been heard from the department, the committee would follow up. The committee's past practice in these things, assuming that is an acceptable timeline for the committee, has been that every so often in the intervening time we would still write to the department to ask whether things are still on track and the forecast deadline is the same as a way of trying to keep the committee's concern from falling off the edge of the earth.
Beyond that, it depends whether the committee is happy with that forecast time. You can always write back to say that the committee feels that is too long to wait and would prefer to see the date moved up.
Senator Moore: Is this important? All this stuff is important but does the other side appreciate that the committee is trying to impress that importance. Why are we not getting an earlier resolution?
Mr. Bernhardt: There is a very important principle here. At present, these regulations require that information, including safety and health warnings, be on the label of these products in either French or English or both.
Senator Moore: That is important.
Mr. Bernhardt: I suppose it was left to individual producers and manufacturers to decide how they wish to comply with that. The committee has always taken the view, since its inception in the early 1970s, that that sort of information should always appear in both languages. That position was supported when it was first instituted by this committee by the Commissioner of Official Languages. It has always been the committee's view and that view has always been accepted in principle by the agency. However, in all likelihood, and to some extent I speculate, it has been in discussions with various manufacturers and people in the industry as to how it should be implemented, exactly what information will be required to appear in both languages, whether there will be exemptions based on certain areas where there may not be a population supporting a second language, et cetera. That is where this has bogged down, in all likelihood.
Senator Moore: Counsel, this has been back and forth between industry and government officials for 11 years.
Mr. Bernhardt: As far as we are aware.
Senator Moore: Can anyone sit down around a table and hammer this out to get it done? I feel a little frustration.
Mr. Bernhardt: I am entirely sympathetic with that. We have been writing the nagging letters every four months for 11 years. At the end of the day, they are the regulation makers.
Senator Moore: Is there another approach to this?
Mr. Bernhardt: I suppose if the committee wishes, it could draft and table a report — noting that there seems to be a fairly significant principle here that was not being implemented — that the agency has had 11 years to act and it has not.
Mr. Pacetti: Since we love to write letters, I am not sure if we should give them until the calendar year. I would say we will respect what they say, but perhaps a stronger letter saying we will give you till the end of the year, otherwise we will take action. I do not know what action we will take, I am looking to you for direction. The letter must say that 11 years is time wasted, money wasted and once and for all let us put an end date. I am not aware of the details. I do not think we should say we will only give you six months. Let us respect what they are saying, but say, "This is your last chance." If we can word it in that fashion, maybe we could put an end to this sooner than later.
Mr. Bernhardt: We can certainly try that. Further to what Senator Moore was saying, at some point the committee could decide it wished officials from the agency to be here. They could detail what they have been doing on this file and what negotiations there have been and where things are at.
Mr. Pacetti: If we can state in the letter that we can take some type of further action whether it is to state that we will table a report or ask them to appear before committee, I would so.
The Joint Chair (Ms. Boivin): Is it the first time that they had a definite date?
Mr. Abel: Previously to this recent development, they have not been willing to commit that they are actually making the amendment. That is recent. They said they are developing it in 2010. They finally said, "We are developing amendments." Now they have been providing timeline.
The Joint Chair (Ms. Boivin): Would it not be preferable to tell them that we are taking note that, for the first time since 2002, we are realizing that there is a final date and that we will give them that deadline, while warning them that, in six months, we will check the timeline they had established for the end of 2012, to avoid having to contact them again and be told that the timeline has been pushed to 2013. We could in fact put them on a bit of a tighter leash?
Mr. Pacetti: I agree, except that the letter's message should be stronger; otherwise the emphasis is put on our responsibility. I think we should tell them that we expect everything to be resolved by the end of the year. I suggest the responsibility rest more specifically on them than on us.
Mr. Dionne Labelle: This is the third meeting I have attended, and I realize that we have files dating back to 2000, 2002, 2004 and 2006. I am wondering whether we should not have a statutory clause to avoid these never-ending delays. They could be called before the committee at the end of two or three years, statutorily; that this be a standard procedure. I do not know if we can do that, but it seems to me that this is dragging on. It is mind-boggling.
The Joint Chair (Ms. Boivin): For the new members, yes it is mind-boggling.
Mr. Dionne Labelle: That they be called before the committee after a certain period of time.
Mr. Bernhardt: I suppose part of the impression that is given is because the committee does spend 99 per cent of its time on 1 per cent of the regulations. Those are what I affectionately refer to around the office as the "problem children." They are the ones that keep coming back to committee and drag on, those files wherein difficulties have been encountered. We always have part action taken, action taken, action promised, and the committee goes through those quickly because everything is fine. Then there is always a whole list of regulations that do not give rise to a problem in the first place.
Unfortunately, there are instances where things do not go so smoothly. Those are the files that the committee spends its time trying to work through and trying to figure out what to do with. I understand it can create the impression that every file is like that. There are a lot. The committee has, at any given time, between 600 and 800 active files. There is a very heavy workload and the federal government makes a lot of regulations. They are all permanently referred to this committee. To give a bit of a context, I urge members to bear in mind the files they are seeing repeatedly make up a relatively small percentage of federal regulations. Unfortunately, it is that relatively small percentage that causes the problems.
Senator Moore: Frustration.
Mr. Bernhardt: Yes, and it can create the impression that they are all like that. In fact, they are not. We have one later on where in fact the Department of the Environment has moved quicker than this committee. They have made amendments to amendments, and wrapped everything up. It comes to the committee as a very nice package. The committee does not spend much time on those because it does not have to.
Mr. Dionne Labelle: My interest is in the files that are dragging on. It seems to me that if our procedure imposed a maximum delay of two years, for example, as a time limit, then at the end of two years, they would appear and we would order them to pick up the pace. In any case, I am suggesting this to the committee, since we would have a few files at once.
Mr. Pacetti: I can comment on this matter. I would be in favour of such a step, but I am suggesting that, since several of us are new, we could perhaps postpone this to a later date and continue our meeting.
The Joint Chair (Ms. Boivin): Excellent. We will take note of it. We will certainly come back to it because this is not the last time we will encounter this type of frustration.
Mr. Dionne Labelle: I would appreciate it if we could come back with a few ideas on this for the next meeting.
The Joint Chair (Ms. Boivin): To speed up the process.
Mr. Dionne Labelle: Yes, exactly.
The Joint Chair (Ms. Boivin): To get back to the matter at hand — Yes, Senator Braley?
Senator Braley: In the last two years have you ever had a phone conversation with your party at the other end for whatever reason?
Mr. Bernhardt: There are meetings. There are conversations going on.
Senator Braley: Is there any excuse, reason or rationale being submitted?
Mr. Bernhardt: There are a great number. They are the same that the committee sees in the written correspondence.
Senator Braley: In this case they are not paying attention.
Mr. Bernhardt: Sometimes it is inadvertence. There is nothing more frustrating after waiting for years, finally getting a package of amendments that has been promised and finding that two or three of them are just not there and fell through the cracks.
The Joint Chair (Ms. Boivin): We are going to write to them in any case.
Do we agree on the consensus reached?
Hon. Members: Agreed.
SOR/2000-416 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS
SOR/2003-409 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS
(For text of documents, see Appendix N, p. 3N:1)
Mr. Abel: When the committee last reviewed this file the expected completion date for promised amendments to the Health of Animals Regulations was the end of 2010. This was later moved back to sometime in 2011. According to the agency's letter of April 29, the amendments are now expected to be completed in 2012. It is difficult to say whether progress is being made here, but at this time an update on progress would be warranted. Perhaps a more precise completion date could also be pursued.
Hon. Members: Agreed.
SOR/2003-296 — REGULATIONS AMENDING THE WILDLIFE AREA REGULATIONS
(For text of documents, see Appendix O, p. 3O:1)
Mr. Abel: The situation is basically identical to the previous two or three files. We have a deadline pushed back now to this winter for prepublication. It has formerly been in the spring for final publication. This is another case where the amendment seems to have been added to a broader package. Again, I suppose the recommendation would be to ask that if that deadline is not going to be met, the committee's amendments could be separated out and processed independently.
SOR/2011-120 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS
SOR/2010-139 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS
SOR/2008-217 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS
SOR/2009-190 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS
(For text of documents, see Appendix P, p. 3P:1)
Mr. Abel: We have here four instruments amending the Migratory Birds Regulations. SOR/2008-217 and 2009-190 were reviewed together and gave rise to 20 points concerning drafting and language matters. The first point raised in counsel's February 5, 2010 letter concerns an error that required no correction, but was noted by the department. Most of the other concerns raised were resolved by SOR/2010-139 and the rest by SOR/2011-120. SOR/2010-139 in turn gave rise to four more concerns regarding drafting, which were then also resolved by SOR/2011-120. Consequently, there appear to be no outstanding concerns on any of these files and they could all now be closed.
Hon. Members: Agreed.
SOR/97-61—REGULATIONS PRESCRIBING A TERRITORY FOR THE PURPOSES OF THE DEFINITION « COUNTRY » IN THE CUSTOMS TARIFF
(For text of documents, see Appendix Q, p. 3Q:1)
SOR/2001-227 — MARIHUANA MEDICAL ACCESS REGULATIONS
(For text of documents, see Appendix R, p. 3R:1)
SOR/2010-191 — REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS RESPECTING THE PEST CONTROL PRODUCTS ACT AND REGULATIONS
(For text of documents, see Appendix S, p. 3S:1)
SOR/2011-17 — TOYS REGULATIONS
(For text of documents, see Appendix T, p. 3T:1)
Mr. Bernhardt: As always, if members prefer, we could go through the rest of the items as three groups, as per usual.
Under "Action Promised," nine specific amendments are promised in connection with the four instruments listed. As well, an amendment to the Customs Tariff has been agreed to. As always, progress on those is followed up after the meeting.
I should also note for the instruments registered as SOR/2010-191 and SOR/2011-17, 32 amendments that the committee had asked for were made.
SOR/2009-76 — REGULATIONS AMENDING THE ELECTRICITY AND GAS INSPECTION REGULATIONS
(For text of documents, see Appendix U, p. 3U:1)
SOR/2009-225 — REGULATIONS AMENDING AND REPEALING CERTAIN REGULATIONS ADMINISTERED BY THE MINISTER OF VETERANS AFFAIRS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix V, p. 3V:1)
SOR/2011-38 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix W, p. 3W:1)
SOR/2011-43 — REGULATIONS AMENDING THE GOVERNMENT PROPERTY TRAFFIC REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix X, p. 3X:1)
Mr. Bernhardt: Under "Action Taken" are four instruments that taken together total 26 amendments requested by the committee. A couple worth noting in particular is an amendment to the Veterans Burial Regulations that provides for a right to a claimant to choose which vehicle is to be deducted from the calculation of their assets. There is an amendment to the Veterans Allowance Regulations that removes an unnecessary ministerial discretion. As well, there is an amendment to the Government Property Traffic Regulations that removes a provision that charged owners of vehicles the cost of storage, where their vehicle had been removed for parking violations. The act contained no authority to impose that kind of charge by regulations.
SI/2011-10 — ORDER TRANSFERRING FROM THE MINISTER OF TRANSPORT TO THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS THE POWERS, DUTIES AND FUNCTIONS UNDER PARAGRAPH 4.81(1)(B) OF THE AERONAUTICS ACT
SI/2011-11 — ORDER ACKNOWLEDGING RECEIPT OF THE ASSESSMENT DONE PURSUANT TO SUBSECTION 23(1) OF THE ACT
SI/2011-14 — WITHDRAWAL FROM DISPOSAL OF THE SUBSURFACE RIGHTS IN CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (NÀNH' GEENJIT GWITR'IT TIGWAA'IN/WORKING FOR THE LAND: GWICH'IN LAND USE PLAN) ORDER
SI/2011-15 — ORDER FIXING FEBRUARY 15, 2011 AS THE DAY ON WHICH SECTIONS 10 AND 11 OF THAT ACT COME INTO FORCE
SI/2011-16 — ORDER TRANSFERRING FROM THE MINISTER OF ENVIRONMENT TO THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT THE POWERS, DUTIES AND FUNCTIONS OF THE PORTION OF THE FEDERAL PUBLIC ADMINISTRATION OF THE MACKENZIE GAS PROJECT OFFICE
SI/2011-18 — ORDER FIXING MARCH 1, 2011 AS THE DAY ON WHICH THAT ACT COMES INTO FORCE
SI/2011-19 — SUZAN GILL REMISSION ORDER
SI/2011-21 — ORDER FIXING APRIL 1, 2011 AND JULY 1, 2011 AS THE DATES ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE
SI/2011-22 — ORDER FIXING APRIL 1, 2011 AS THE DAY ON WHICH CERTAIN PROVISIONS OF CHAPTER 23 OF THE STATUTES OF CANADA, 2010, COME INTO FORCE
SI/2011-23 — ORDER FIXING APRIL 29, 2011 AS THE DAY ON WHICH THAT ACT COMES INTO FORCE, OTHER THAN SECTION 12 WHICH CAME INTO FORCE ON ASSENT
SI/2011-24 — MILDRED JACOBS REMISSION ORDER
SI/2011-25 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTIONS 2137 TO 2147 OF THAT ACT COME INTO FORCE
SI/2011-26 — KATHRYN STRIGNER TAX REMISSION ORDER
SI/2011-27 — PIERRE DUPUIS INCOME TAX REMISSION ORDER, NO. 2
SI/2011-28 — ORDER FIXING NOVEMBER 1, 2011 AS THE DAY ON WHICH CERTAIN PROVISIONS OF AN ACT TO AMEND THE LAW GOVERNING FINANCIAL INSTITUTIONS AND TO PROVIDE FOR RELATED AND CONSEQUENTIAL MATTERS COME INTO FORCE
SI/2011-30 — ORDER FIXING MARCH 28, 2011 AS THE DAY ON WHICH THE ABOLITION OF EARLY PAROLE ACT (BILL C-59) COMES INTO FORCE
SI/2011-31 — ORDER RESPECTING BROADCASTING DECISION CRTC 2011-41 (GOLDEN WEST BROADCASTING LTD.)
SI/2011-32 — PROCLAMATION DISSOLVING PARLIAMENT
SI/2011-33 — PROCLAMATION ISSUING ELECTION WRITS
SI/2011-34 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON MAY 30, 2011
SI/2011-35 — ORDER FIXING APRIL 15, 2011 AS THE DAY ON WHICH THE PROTECTING VICTIMS FROM SEX OFFENDERS ACT COMES INTO FORCE
SOR/2010-197 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CHARITABLE DONATIONS)
SOR/2010-205 — ORDER 2010-105-10-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2010-210 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE I TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2010-252 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
SOR/2010-253 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
SOR/2010-262 — ORDER AMENDING SCHEDULE I TO THE HAZARDOUS PRODUCTS ACT (CRIBS, CRADLES AND BASSINETS)
SOR/2010-293 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION PRESCRIBED PRACTICES PREMIUM SURCHARGE BY-LAW
SOR/2010-299 — REGULATIONS AMENDING THE HAZARDOUS PRODUCTS (TOYS) REGULATIONS
SOR/2011-7 — REGULATIONS RESPECTING PRESCRIBED BRANDS OF MANUFACTURED TOBACCO AND PRESCRIBED CIGARETTES
SOR/2011-12 — REGULATIONS AMENDING THE ATLANTIC FISHERY REGULATIONS, 1985
SOR/2011-13 — REGULATIONS REPEALING THE REINSURANCE (CANADIAN COMPANIES) REGULATIONS AND THE REINSURANCE (FOREIGN COMPANIES) REGULATIONS
SOR/2011-18 — CANDLES REGULATIONS
SOR/2011-24 — REGULATIONS AMENDING THE CONSUMER CHEMICALS AND CONTAINERS REGULATIONS, 2001
SOR/2011-25 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE I TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2011-26 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE I TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2011-27 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT
SOR/2011-30 — ORDER 2011-66-01-02 AMENDING THE DOMESTIC SUBSTANCES LIST
Mr. Bernhardt: Under Statutory Instruments Without Comment are listed 38 items that have been reviewed by counsel and found to comply with all of the committee's criteria. As always, we have copies of those available this morning for any members if they wish to look at them.
The Joint Chair (Ms. Boivin): Are there questions or comments?
Thank you for your efficiency.
(The committee adjourned.)