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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 4 - Evidence - November 17, 2011
OTTAWA, Thursday, November 17, 2011
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:32 a.m. for the review of statutory instruments.
Senator Bob Runciman (Joint Chair) and Mr. Garry Breitkreuz (First Vice-Chair) in the chair.
The Joint Chair (Senator Runciman): Before we begin, colleagues, I would ask that if you want to speak to an issue, please wait until you are identified for the purposes of the recording of the proceedings.
There was a memo circulated to members yesterday from counsel addressing an issue that was raised at the last meeting, dealing with a lack of timely response by some ministries and agencies of government. Rather than discuss it today, since you just received it yesterday and I am sure many of you have not had an opportunity to review it, perhaps we could defer any discussion on the memo until our next meeting.
Hon. Members: Agreed.
CORRESPONDENCE CONCERNING THE RELEASE OF INFORMATION BY THE NATIONAL ENERGY BOARD, THE CANADA-NEWFOUNDLAND OFFSHORE PETROLEUM BOARD AND THE CANADA-NOVA SCOTIA OFFSHORE PETROLEUM BOARD
Peter Bernhardt, General Counsel to the Committee: The committee has received representations in connection with the application of certain disclosure provisions under three statutes to third party information. Those statutes are the Canada Petroleum Resources Act, Canada-Newfoundland Atlantic Accord Implementation Act and the Canada- Nova Scotia Offshore Petroleum Resources Accord Implementation Act.
It is claimed that these disclosure provisions contravene common law rights, the Access to Information Act, and the right to enjoyment of property under the Canadian Bill of Rights. The relevant provisions are explained in some detail in the note that was prepared for members for this morning.
In essence, it seems the concern is that certain data that is licensed for a fee but that still remains confidential can be required to be included in reports that the licensees submit pursuant to the applicable federal legislation. These reports are privileged, but there is an exception for geological work or geophysical work performed in relation to frontier lands; it may be disclosed after the expiration of five years after the completion of the work. The question then is whether this exception applies to the confidential data obtained by the person under a licence from someone else.
As the note explains, the issue is the proper interpretation of the three acts in question. It is suggested that this would not appear to fall within the committee's jurisdiction. Of course, in order for the committee to exercise its mandate, there first has to be a statutory instrument for it to review.
What is being asked of the committee here is that it look into the provisions of the acts in question. In fact, there do not appear to be any regulations made for the purpose of implementing those provisions. There are guidelines used by the three boards in applying the acts, but those are administrative documents. They are not legislation.
It has also been suggested there should be a regulation providing for greater certainty that this information may not be disclosed. Again, the note suggested that it is difficult to see there would be authority for any such a provision. In effect, that would be defining the statute through a regulation, which you generally cannot do without explicit authority. It therefore seems that if a clarifying provision like that was considered necessary, the solution would have to be for Parliament to amend the acts directly.
In connection with the guidelines, it is suggested that the committee should look at those because they are being applied as if they were regulations. It is true that the committee has sometimes had occasion to insist that administrative documents, where they are treated as binding and deal with matters that could be the subject of regulation, should be included in the regulations in order that they be legally enforceable and bind everyone equally.
However, the question always has to be, would there be authority for regulations dealing with the matters dealt with in the guidelines? It is suggested the authority at present would be lacking in the act, so once again the only solution would be to go back to Parliament. All that is a bit of a long way of saying that whatever the merits of the objections raised here, they do not seem to fall within the scope of the committee's mandate.
The person making the representations concludes by asking who his concerns should be directed to, if not to this committee. It is for members to decide whether it is appropriate or not to be suggesting possible alternative avenues of recourse.
The Joint Chair (Senator Runciman): Counsel, what you are saying here essentially is that this falls outside the mandate of the committee. Therefore, we are responding in essence with that information. The only other consideration for the committee is whether or not we wish to provide guidance with respect to who he may pursue this further with.
Are there any comments or suggestions?
Senator Harb: Obviously, I fully support counsel. My first reflection would be to ask the individual in question to write to the minister and raise the issue directly with the minister.
From the look of it, it seems he has explored pretty well everything through the bureaucracy and has not been able to achieve what he is trying to. In the end, if it is something that requires either legislative or regulatory changes, I think it is within the mandate of the minister to do that. That would be my recommendation.
Mr. Albas: I appreciate what the senator is saying. Before I add and dovetail to what he is saying, I would like to say to counsel that I appreciate that they responded to the gentleman's concerns promptly, despite the committee not having the capacity to at the time. I think he has brought forward some strong concerns, but in fairness, you replied to him saying that it was not within the mandate of the committee. Since he did reply back, I think we should give him the courtesy of a proper response. If I may be so bold, Mr. Chairmen, as to suggest that on behalf of the committee, perhaps you write to him so he knows his concerns have been heard, reinforcing counsel's prior argument that we are not the proper mode of recourse.
Following through on what Senator Harb said, we could refer him to more conventional sources such as his member of Parliament, the minister, or perhaps a committee such as the House of Commons Standing Committee on Natural Resources. I think that would at least address that his concerns have been heard and give him avenues to move forward with his cause.
The Joint Chair (Senator Runciman): Is there anything further? Are we agreed?
Hon. Members: Agreed.
SOR/2002-145 — MANNER OF DISPOSAL OF DETAINED, SEIZED OR FORFEITED GOODS REGULATIONS (PRECLEARANCE ACT)
(For text of documents, see Appendix A, p. 4A:1.)
Mr. Bernhardt: Mr. Chairmen, members may recall the rather odd situation on this file. The regulations do not seem to bear much resemblance to the act itself. There are provisions that seem to contradict the act, can apply only together with other regulations that have never been made, and various other anomalies. In fact despite their title, the regulations do not really provide for the manner of disposing of detained, seized or forfeited goods, other than simply stating that goods are to be transferred to a Canadian officer for disposal. Amendments to the regulations and the act have been promised. Obtaining progress reports on that proved to be somewhat of a challenge.
The department eventually advised that a review of the entire act was underway and the committee's concerns were at the heart of that review. The department indicated it would be in touch as soon as they proceeded forward. Nothing further was heard. On September 29, when this file was before the committee, members decided they wished to know details on the results of the review and when it was expected the amendments would be made. It was also the wish of members that the department be asked to reply within 30 days.
As yet, no reply has been received. However, I was informed yesterday afternoon that apparently a reply has been prepared and is on its way. I expect that reply can be put before the committee at the next meeting.
SOR/2005-39 — REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS
(For text of documents, see Appendix B, p. 4B:1.)
Mr. Bernhardt: The situation is somewhat similar to the previous file. An amendment has been promised to the Department of Veterans Affairs Act to broaden the definition of primary caregiver — to permit extending certain benefits to people in respect of whom those benefits cannot be extended — under the act at present. This amendment was expected to proceed in 2011. It remains outstanding. On September 29, the committee wished a progress report be sent and asked for reply within 30 days. As yet, we have received no reply and that is all the information I have at present.
Mr. Albas: I think we should follow through with this. When the committee asks for a response, I think we should receive it. However, given that 30 days is not a long period of time, we should ask for a response within 30 days and seek other options if we do not hear anything back at that time. I think that is a fair way to step forward.
Senator Moore: I do not know if the respondents are not responding because they are just playing games, or if they do not think we are serious about it. If we are going to write back to them again, I think they should be told if they do not reply within a set period to be prepared to come here and answer the questions of the committee.
Mr. Bernhardt: Perhaps we could give a firm date. I do not know what time frame we have.
Senator Moore: I would not give more than 30 days. Are we going to try and get it done this calendar year or let it go on? I think we have to be a bit more assertive in setting the agenda here.
Mr. Bernhardt: The reason I raise that is we do have the next meeting scheduled for two weeks. Then there is the meeting on December 15, which I have been led to believe may or may not take place, depending on where matters sit in the houses. After that we are into the new year.
Senator Moore: Maybe you could ask for a reply in time for our meeting of December, two weeks hence. A month and a half has gone by; almost two months.
Mr. Albas: I believe the senator does have a point. We want to establish some time lines. Hearing what counsel has to say, maybe we can split the baby in half and write to them letting them know if they are not going to be following up in a timely fashion, we will consider calling them in. That keeps them on their toes and addresses the committee's needs.
Senator Moore: What is a timely basis? What do you have in mind?
Mr. Albas: Maybe if we can say we would like a response in 30 days and after that point we will consider our options, including calling them in.
Mr. Dionne Labelle: I think, before writing another letter, I would prefer to have the opportunity at the next meeting to discuss the note that was provided yesterday concerning the various options available to us to speed things up. After that analysis, we could determine how to proceed. I suggest we have a discussion and look into the various options before starting the process again with another letter with a 30-day deadline. It seems to me that this would be redundant.
Senator Moore: I would like to somehow get a decent response before we adjourn for the Christmas break. In another 30 days we will not be here. I would like to see us get a little more timely response chair.
The Joint Chair (Senator Runciman): I think Mr. Labelle is suggesting we defer action with respect to this file. We have the counterpoint that until we have that discussion, we should move ahead with this and request a response within a timely manner. Those are the two options at this point.
Senator Harb: The third option is a combination of the first two options. Rather than giving them 30 days every time, I would suggest we call them in for whatever time that we have. In the letter we call them in and say, ``We have given you 30 days and you did not respond. Therefore, we are calling you in to the committee.'' Should they respond between now and the time they appear, then it is fine. Otherwise, I do not think these letters are having an impact unless we show the bureaucracy that when a request is made they have to comply within the time as set out by the committee. Frankly, it is a bit insulting that they could not provide us with a simple response. I would call them in and in the meantime, they will have ample opportunity to respond.
Mr. Albas: As much fun as it is keeping bureaucrats on their toes, I do agree with Mr. Labelle. He does have a good point. Before we start doing such, we should actually get our own business in order and how we are going to proceed as a committee. I think it is an apt discussion and very good point. I would support having that discussion here before we start writing letters in which we threaten to bring people in. That would be a much more sensible way to go.
The Joint Chair (Senator Runciman): I am not quite clear. Are you suggesting that we not send a letter?
Mr. Albas: Mr. Labelle has raised a good point: Before we start writing letters, we should have that discussion.
The Joint Chair (Senator Runciman): We could schedule the discussion for the subsequent meeting.
Mr. Bernhardt: We could bring this file back. I suppose in the interim, if members wish, we could advise the department that the file will be brought back at the next meeting and that it would be preferable to have their response by that time.
Senator Moore: I have one last thought. I do not want us to do nothing; I do not want us to simply sit here. They did not even reply to say, ``Thanks, we got your letter; we will be back to you.'' I do not want us to sit here and not go back to them. If this were happening in a law office, you would not do that.
The Joint Chair (Senator Runciman): I do not think counsel is suggesting that.
Senator Moore: Counsel suggests we send a letter of some sort, and I think we should do that. I hear what you are saying, but we should do something on this file.
The Joint Chair (Senator Runciman): I believe we are agreed with counsel's suggestion to send a letter indicating that this conversation will occur with respect to delays in responses and that this subject matter will be raised at that time. Are we okay with that? Good.
SOR/99-256 — CANADA COOPERATIVES REGULATIONS
SOR/2001-513 — REGULATIONS AMENDING THE CANADA COOPERATIVES REGULATIONS
(For text of documents, see Appendix C, p. 4C:1.)
Mr. Bernhardt: Thirty-eight points were raised concerning these regulations, and all but two have been resolved. The first of those two concerns the absence of authority for deeming an undated form of proxy to bear the date on which it was mailed. This substantive rule goes beyond the authority simply to prescribe the form of a form of proxy, which is all that the act authorizes at present. An amendment has been promised to both the Canada Cooperatives Act and the Canada Business Corporations Act. The committee might wish to ask when it is expected that those amendments will be introduced.
The second of those concerns fees prescribed for issuing various certificates. There is authority in the act to provide fees for a service. The question was raised whether a service can be said to be provided where the certificate is required to be issued. In other words, if you have a right to a certificate in a certain circumstance, can getting that certificate be said to be providing you with a service. The department has explained that in such a situation the service is really the processing of the application to see if there is a right. That all takes place prior to the issuing of the certificate, so it is not really a fee for issuing the certificate but is a fee for processing the application for the certificate.
Originally, an amendment was promised to make this clear. Apparently, however, it is no longer considered necessary to make that amendment. Accepting that authority exists for the fees in question leaves the question for the committee whether it wishes to insist on this clarification or whether it is satisfied that imposing a fee for issuing a certificate clearly implies that the fee is really for processing the application for the certificate. In this case, I would suggest it may well be something the committee need not pursue.
Mr. Trost: I am a non-lawyer, so at times I do not understand how lawyers can always change their minds. Regarding point 37, I would say that the committee does not take argument with the new legal position and that we hope they do not change their interpretation again. I would say that we leave with that.
Regarding point 13, the non-lawyer in me seems to understand that this needs to have legislative change according to the letter that was written to the committee by industry. The committee cannot make legislative change. Therefore, we have to throw this up to a minister or someone in the House and suggest they look at it. Perhaps we should write a letter suggesting that it be passed to the appropriate minister and that it be dealt with in the upcoming year or two. On point 37, I suggest we do nothing. On point 13, maybe we could write a letter to ask when and if this could be looked at.
The Joint Chair (Senator Runciman): Are there different views on that? Are all agreed?
Hon. Members: Agreed.
SI/2008-85—CERTAIN FEES RELATING TO EXPORT CERTIFICATES REMISSION ORDER
SI/2008-86 — CERTAIN FEES RELATING TO FEEDER CATTLE IMPORTED FROM THE UNITED STATES REMISSION ORDER
SI/2008-87 — CERTAIN FEES RELATING TO REGISTERED ESTABLISHMENTS REMISSION ORDER
(For text of documents, see Appendix D, p. 4D:1.)
Mr. Bernhardt: Each of these orders remits certain fees that were imposed under the Canadian Food Inspection Agency Fees Notice. That notice is made by the minister pursuant to the Canadian Food Inspection Agency Act, which also provides that the minister may remit all or part of any fee fixed under it. However, these orders were made by the Governor-in-Council under the general remission power in the Financial Administration Act.
In a previous letter, the CFIA explained that the decision to proceed under the FAA was made because there is an established internal process for remissions under that act. In other words, everyone knows what the steps are through the bureaucracy; but there is no such established precedent for the CFIA Act.
This led to the agency being asked whether this meant that the minister would never exercise his authority that Parliament had delegated to him under the CFIA Act. The agency's reply was that it is not possible to foresee which option will be chosen, and it would not be appropriate to speculate about when each of the two acts would be used. The agency clearly views the two acts as simply being alternatives.
Yet, if Parliament delegated a remission authority to the minister, it seems clear that the minister was intended to use it in some situations; otherwise, the amendment would be pointless. The CFIA Act is both more recent and a more specific statute. This being the case, it seems open to conclude that Parliament wanted the minister to remit any fees imposed under that statute. It would seem then, at the end of the day, that the Governor-in-Council retains a general power to remit fees under the FAA, but this power cannot be exercised to remit fees paid under the CFIA Act. The two acts apply together, and there is a division of responsibilities between the minister and the Governor-in-Council.
Unless the agency can come up with some circumstances and some criteria that provide a basis for distinguishing when the one act will be used and when the other act will be used, the conclusion would seem to be that these fees imposed by the minister under the CFIA Act have to be remitted by the minister under that act, not by the Governor- in-Council under the FAA. I would suggest that the committee follow that up and pursue those points in another letter to the agency.
The Joint Chair (Senator Runciman): Are members agreed with that approach?
Hon. Members: Agreed.
SOR/95-212 — PLANT PROTECTION REGULATIONS
(For text of documents, see Appendix E, p. 4E:1.)
Jacques Rousseau, Counsel to the Committee: Mr. Chair, in this file, 25 points were raised when the correspondence began in November 2000. The correspondence exchanged following the meeting on November 18, 2010, focuses on two points. The note prepared for the committee addresses those two points.
The first point concerns subsection 16(1) of the regulations. From the outset, the committee has felt that the section unnecessarily delegates authority to inspectors that they already have under subsection 25(1) of the act and enables them to enter a place without reasonable grounds, as required under the act.
The agency promised to amend subsection 16(1), and the committee wanted some details. In its letter of January 27, 2011, the agency indicated that it wanted to delete from subsection 16(1) the wording that is incompatible with subsection 25(1) to make it clear ``that the authority to proceed with the inspection of a place derives from the Act and not the Regulations.''
Therefore, it seems that, in terms of that amendment, the inspector's only authority comes from the act, which seems satisfactory.
The other point concerns sections 8, 9, and 46(3) of the regulations, the wording of which is in the note prepared by counsel. The committee is challenging the validity of these sections because it considers that the purpose of these provisions is fraud prevention and, as such, it exceeds the purposes of the Plant Protection Act under which they were adopted
The Canadian Food Inspection Agency agrees that these sections target fraud, but feels they do so only incidentally. It maintains that these sections are needed to ensure plant protection and, in that sense, are consistent with the purposes of the act.
It is obvious that plant protection is the purpose of the act. Having said that, to ensure this protection, not all means are permitted. The act prohibits importing a pest to Canada without presenting a permit, certificates or other regulatory documents to an inspector. Violating the act and regulations prescribing conditions under which a pest may be imported is an offence punishable under the act.
The agency wants to go even further and, under the pretext of prevention, maintains that the regulations can create the infraction of being in possession of a document set out in the act or the regulations if it is false, even if the document is not used. This allows an inspector to seize the document, because possession of a false document violates the regulations. Doing so prevents it from being used, and that, the agency writes, makes it possible to preventatively protect plants.
Even if we admit that preventing fraud is a good way to preventatively protect plants, the fact remains that the courts make a distinction between regulatory offences and criminal ones. As Justice Cory noted in a case heard by the Supreme Court of Canada in 1991:
Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely. Murder, sexual assault, fraud, robbery and theft are all so repugnant to society that they are universally recognized as crimes. . . . While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.
This excerpt from Justice Cory's decision clearly shows that the sections of the regulations challenged by the committee are criminal offences and that the purpose of the Plant Protection Act is regulatory. This act has a regulatory purpose, and the purpose of sections 8, 9 and 46(3) of the regulations are criminal in nature. They have, therefore, been illegally adopted. If the agency believes that the creation of criminal offences is necessary to protect plants, it should seek an amendment of the act to allow for the creation of criminal offences under the regulations.
The correspondence with the agency on this matter started in November 2000. According to the committee's counsel, it would now be appropriate for the joint chairs to write to the minister to bring this matter to his attention.
The Joint Chair (Senator Runciman): We have the recommendation of counsel.
Mr. Brown: I agree we should write the minister and ask him to reconsider.
The Joint Chair (Senator Runciman): The suggestion is that we accept the advice. Are all in agreement?
Hon. Members: Agreed.
SOR/2004-174 — AIR CANADA PENSION PLAN SOLVENCY DEFICIENCY FUNDING REGULATIONS
SOR/2009-211 — AIR CANADA PENSION PLAN FUNDING REGULATIONS, 2009
(For text of documents, see Appendix F, p. 4F:1.)
Mr. Rousseau: The two regulations that the committee is looking at today concern Air Canada's pension plans, and they were adopted in 2004 and 2009 under sections 9.1, 10.1(2)(b) and section 39 of the Pension Benefits Standards Act, 1985.
In 2010, Parliament amended section 39 of the act by adding subsection 3, which states that a regulation made for the purposes of subsections 8(4.1), 9.1 to 9.15 or subsection 10.1(2) may be made applicable generally to all pension plans or specifically to one or more pension plans.
Regulatory power is by its nature a legislative power, or a power to adopt regulations of general application. So the issue is whether these two regulations, which deal specifically with Air Canada's pension plans, were adopted validly in 2004 and 2009, therefore before section 39 was amended by Parliament. The department said yes and said that sections 39(1)(o) and (p) of the act provide a very broad regulatory power. These sections are provided in the note prepared for the committee.
In fact, these sections have never been interpreted by the courts as provisions granting broad regulatory powers and certainly not the power to make regulations of specific application. The department also tried to make the argument that section 9.1 of the act uses the words ``pension plan'' in the singular and ``tests'' and ``standards'' in the plural. However, the Interpretation Act clearly states that, in legislation, words in the singular include the plural and vice versa.
The department also tried to make a distinction about the effect of adding section 39.3 of the act on the various sections affected by the amendment. According to the department, adding section 39.3 was necessary to allow for the adoption of regulations of specific application, such as in the case of section 10.1(2) of the act. However, the department also maintains that, in the case of section 9.1, it was not necessary and was only done for greater certainty.
In this case, the department had to admit that one of the enabling provisions used to adopt the regulations in 2004 and 2009 did not allow for the adoption of regulations of specific application and that, therefore, those regulations were invalid.
Lastly, even if we accepted the department's point of view that section 9.1 was mentioned only for greater certainly, this means that, legally, the scope of the act was unclear and, therefore, the validity of the two regulations is unclear. If Parliament made the effort to resolve the uncertainty, logically the Governor-in-Council should resolve the uncertainty surrounding the validity of the regulations by re-adopting them.
In the note prepared for the committee, one matter was not discussed: By re-adopting the regulations, the issue would be resolved for the future. The problem is that these regulations were adopted in 2004 and 2009, and the act was amended in 2010. In 2010, the effort was not made to retroactively apply the regulations, which would have validated the regulations adopted previously.
So, for the solution that is suggested in the note and that would resolve the problem for the future, normally Parliament would intervene to retroactively resolve the situation.
If the committee agrees, counsel will write to the department to explain why the two regulations should be re- adopted and why Parliament should also intervene to retroactively resolve the situation.
Mr. Wilks: I concur with counsel's conclusion and I believe that we should try and resolve this as soon as we can. It seems to have become a bit of a conundrum between 2004 and 2009 into 2010, and we need to amalgamate them. If we can act upon the suggestion of counsel, I think it could resolve it sooner rather than later.
Senator Harb: What is involved here is pretty well the harmonization. Is what we have done in 2010 complementary to 2004 and 2005 or is it not? I think that is what you are trying to do here.
However, I can also see it from their point of view. They have taken the position that when you introduce amendments, unless you explicitly state that they are exclusive of the previous ones, then they are complementary; they follow one another.
May I suggest, chair, depending on the urgency of this case, if we can get the department to undertake that if they do not want to do it now, at the earliest possible opportunity when these regulations are up to review, that they add a paragraph for greater certainty so they will solve the problem once and for all?
Mr. Bernhardt: That would be an appropriate way, I think, for an amendment to the statute, if they wish to do it that way and say for greater certainty the orders made in 2009 are considered valid. That would certainly resolve anything that happened in the past. Going ahead, they do have the power now. They could simply re-enact these word for word and at a stroke, the problem for the future is clearly resolved.
Senator Harb: Perfect.
The Joint Chair (Senator Runciman): Are there any implications associated with this situation?
Mr. Bernhardt: We have been trying to puzzle that out. You would have a pension plan that had been administered and funded through an improper set of rules for the purposes of ensuring the plan was kept afloat, with the best of intentions. The practical question at this point would be, ``Is someone going to come along and take issue with that?'' Things that come to mind are perhaps the union or something like that. In this case, my guess is that probably is not going to happen. The parties involved are probably satisfied. It still leaves the legal issue, and the principle that things have been done improperly. I suppose the fact that no one may be running off to court to challenge this may have some impact on how the committee treats it in terms of immediacy.
Mr. Rousseau: The change that occurred between 2004 and 2009 was that, since the pension assets were insufficient, Air Canada was allowed to raise the funds over a longer period. Normally, this should have taken place over a specific period, the period set for all pension funds in Canada, but since Air Canada was having financial difficulties, the period was extended.
Eventually, the money will obviously be in the pension funds, except, as we have said, there is a matter of principle, which is that all of this happened in a great deal of legal uncertainty and, really, it would be appropriate to settle the matter completely, for the past and the future.
Mr. Albas: I do think that counsel has raised a very good point. Rather than continue on with the sloppy situation we should simply write to the ministry and ask them to redo the order.
The Joint Chair (Senator Runciman): I will ask for another clarification. Even if no one is filing suit with respect to this matter, it seems to me it is a rather precarious situation. The potential is there. I wonder if we should go beyond the normal contacts with respect to this matter and perhaps ensure that the minister is apprised of the situation and potential implications.
Mr. Rousseau: The committee could write a letter to the minister.
Mr. Wilks: I am fine with that as well. I think it is important that the minister responsible knows the implications that could come down the pipe.
SOR/2002-182 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VI)
(For text of documents, see Appendix G, p. 4G:1.)
Mr. Rousseau: Mr. Chair, according to the Aeronautics Act, the regulatory power that the Governor in Council used to adopt these regulations is subject to a prerequisite, namely, that the minister must believe that the regulated object could pose a threat to aviation safety. According to the Department of Justice's Regulations Manual, when Parliament imposes a prerequisite, mention must be made in the regulations enacting clause of the fact that it meets the requirements set out by Parliament. This was not the case here, and the committee wanted confirmation that this requirement would be respected in the future.
At first, the department said twice that it intended to take the committee's remarks into account. In its letter of June 8, 2011, the department gave the confirmation requested and, so, the file may be closed.
The Joint Chair (Senator Runciman): We are agreed with that.
SOR/2010-199 — ORDER AMENDING THE SCHEDULE TO THE INSURANCE COMPANIES ACT
(For text of documents, see Appendix H, p. 4H:1.)
Mr. Rousseau: As explained in the comments prepared for the committee, the adoption of SOR/2010-199 amends three provisions of the schedule of the Insurance Companies Act, further to comments made by the committee. However, one of these amendments does not correspond to what had been announced. The committee had proposed translating the word ``retainer'' used in the English version by the word ``provision''. In the end, we chose to translate it by ``acompte''. The correspondence exchanged discussed whether it was an appropriate word choice.
To that end, the committee's counsel asked why the word was chosen and what sources were used. The letter of August 16, 2011, mentions the sources that were used to support the decision. The first mentions that the word ``retainer'' can be translated by the word ``acompte'', and the second that a retainer is paid as an advance. On the strength of the sources, the answer can be considered satisfactory and the file closed.
C.R.C. C. 1551 — TEXTILE LABELLING AND ADVERTISING REGULATIONS
(For text of documents, see Appendix I, p. 4I:1.)
Mr. Bernhardt: Mr. Chair, the committee is waiting on a number of amendments to these regulations. There were public consultations carried out in 2007. Progress since then has been rather slow. The committee had been previously told that the formal amendment process — presumably that is the drafting of the actual amendments and submitting to the Department of Justice for review — was to begin in 2011. The committee wanted to know if it was also expected that these amendments would be completed in 2011. In June, the Competition Bureau explained work was ongoing and it was difficult to predict when the amendments would be made, but they were not expected this year.
As I said, that was in June. Perhaps now the bureau could be asked whether it is better able to provide a forecast completion date.
The Joint Chair (Senator Runciman): Counsel, did you reference the fact this has apparently been before the committee for more than eight years?
Mr. Bernhardt: That is correct.
The Joint Chair (Senator Runciman): I understand the question mark.
Senator Frum: I recommend that we do write back and inquire about what timetable we are looking at for this, in reference to the earlier conversation about what other techniques we can use in the future. I think, pending that conversation, all we can do now is inquire for clarification.
Mr. Pacetti: It is just more for information. I think this committee is trying to be consistent. I do not want it to not be consistent, but why does this happen? Why can they not even tell you that the amendments are being worked on and they are going to be ready for a certain date? Am I missing something here?
Mr. Bernhardt: I think in this case what happened is there have been a number of deadlines. All of them have come and gone. Perhaps by now the department is a little gun shy about giving this committee another deadline, only to see it come and go yet again. That is speculation on my part, but as I say, we had public discussions or consultations that wrapped up almost five years ago.
Mr. Pacetti: I only ask because we have been pretty consistent around the table since the formation of this committee. Eventually we will have to bring some of these people forward and I want to make sure we are doing it for a good reason. I am in agreement with the rest of the gang. Let us write them a letter and if we have to, we will bring them here.
The Joint Chair (Senator Runciman): That will be part of the conversation we have at the next meeting in terms of how we go forward with dealing with tardy folks like this.
SOR/2002-352 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, VI AND VIII)
(For text of documents, see Appendix J, p. 4J:1.)
Mr. Rousseau: In this file, the committee has recognized that the Aeronautics Act implicitly provides regulatory authority for a certificate holder to provide the minister, by request, with a copy of the training record of any person doing the job mentioned in the regulation. Since this is a measure that enforces the legislation, the committee believes that, given its nature, the requirement should be included in the Aeronautics Act itself or that the act should expressly set out the regulatory power needed to ensure that the requirement is enforced.
The department promised to consider such an amendment when the legislation was next reviewed. The committee wished to know when that review would take place and to have confirmation that the amendment would be made. The department's response was that it was committed to considering the recommendation when it next reviews the act.
When asked why the department could not decide to make the change when the act is eventually reviewed, the reply was that it was because the matter was chiefly a political one.
By way of explanation, in the letter of July 21, 2011, the department recalled that the committee has agreed that the act already implicitly authorizes the regulatory provision in question. Since the validity of the regulations is not an issue, the department writes, and I quote: ``The change will be made in a timely manner, taking into account the department's priorities. Unfortunately, it is not possible to specify exactly when.''
It therefore seems that the department considers that this is a simple question of legislative policy for which it alone is responsible. The good news is that it confirms that the amendment will be made. If the committee is satisfied, counsel will write to the department to indicate that the committee still expects the amendment to be made within a reasonable time.
The Joint Chair (Senator Runciman): Are there comments?
Senator Braley: Should the minister get a copy of that because it affects him?
The Joint Chair (Senator Runciman): Any additional comment on that?
Senator Moore: I am agreed.
The Joint Chair (Senator Runciman): We are in agreement with that approach.
SOR/2010-72—REGULATIONS AMENDING CERTAIN DEPARTMENT OF INDUSTRY REGULATIONS
(For text of documents, see Appendix K, p. 4K:1.)
Mr. Rousseau: I should mention first of all that, with the passage of SOR/2010-72, 23 corrections were made as a result of the committee's comments.
The correspondence on SOR/2010-72 deals with a drafting matter in the French version of the Canadian Business Corporations Regulations and the Canadian Cooperatives Regulations that prohibits the use of non-distinctive corporate names. But the two regulations mention that the prohibitions do not apply if the person proposing to use the corporate name establishes that it has been used in Canada or elsewhere by them or by their predecessors so as to have become distinctive in Canada on the day referred to in the regulations.
In the French version, the words ``et qu'elle continue de l'être'' seem redundant. In its letter of June 29, 2011, the department writes that the words add more clarity and are not a source of confusion. For that reason, they are not considering deleting the words.
It is correct that there is no risk of confusion. If the committee agrees, this file can be closed.
The Joint Chair (Senator Runciman): Are we agreed with that?
Hon. Members: Agreed.
SOR/96-423 — PATENT RULES
SOR/2003-208 — RULES AMENDING THE PATENT RULES
(For text of documents, see Appendix L, p. 4L:1.)
Mr. Rousseau: The promised amendments deal with two sections of the Patent Rules and two sections of the Patent Act. In its letter of June 23, 2011, the department expresses the hope that the amendments could be published by this autumn. This has yet to be done and it would be appropriate to ask the department where matters stand.
As to the two amendments to the act, the department indicates that one will be made when the act is reviewed. Last June, the department was not in a position to provide a timeline for that proposed amendment. The letter was written five months ago; an enquiry could be sent to see if the department is now in a position to provide a timeline. The department writes that the other amendment to the act will be made by way of a statute law amendment act. But if a review of the act should eventually precede the enactment of a new statute law amendment act, the department has committed to including the second amendment in the proposed review. If the committee is in agreement, counsel will write to the department to find where things stand in terms of the amendments, to both the rules and the act.
The First Vice-Chair (Mr. Breitkreuz): Are there comments on the recommendation? Is everyone agreed?
Hon. Members: Agreed.
SOR/2002-309 — ORDER AMENDING THE BRITISH COLUMBIA VEGETABLE ORDER
(For text of documents, see Appendix M, p. 4M:1.)
Mr. Bernhardt: The original issue for the committee on this file was that the BC Vegetable Marketing Commission had no valid order in place fixing and imposing levies on people engaged in production and marketing of vegetables in interprovincial or export trade even though levies were being collected in respect of vegetables marketed outside the province.
Following an appearance by witnesses from the BC Vegetable Marketing Commission, the Farm Products Council and the Department of Agriculture and Agri-food Canada, a proper order was put in place in 2008. As a means of follow up and at the committee's prompting, the Farm Products Council made broader inquiries, and it came to light that there were 13 other provincial boards across Canada that might potentially have similar problems. Since then, the FPC has been working towards rectifying the situation. At the end of July 2011, apparently approval of the regulatory impact analysis statement, which accompanies the remedial orders, had been obtained from Treasury Board; and things seemed to be progressing.
I suggest it is clear that the FPC is pursuing the matter actively. Perhaps at this time only a further update would be required.
The First Vice-Chair (Mr. Breitkreuz): Is everyone agreed?
Hon. Members: Agreed.
SOR/2006-102 — TRAFFIC ON THE LAND SIDE OF AIRPORTS REGULATIONS
(For text of documents, see Appendix N, p. 4N:1.)
Mr. Rousseau: Mr. Chair, the correspondence before the committee today deals with two amendments that were promised after comments from the committee. One deals with the regulations, the other with the act. The committee wanted to know when the amendments could be made.
The department expects to publish a draft amendment this autumn, with the amendment being passed in 2013. As for the amendment to the act, the department indicates that the work is ongoing and that the amendment could also be passed in 2013.
Counsel will continue to monitor progress in the usual way and keep the committee informed of developments.
The First Vice-Chair (Mr. Breitkreuz): Seeing no comments, we will move on to the next item.
Mr. Bernhardt: We can go through each item individually or, if members prefer, and with their permission, I could simply deal with numbers 7, 8 and 9 as three groups.
The First Vice-Chair (Mr. Breitkreuz): Agreed.
SOR/2003-300 — INSURANCE BUSINESS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS
(For text of documents, see Appendix O, p. 4O:1.)
SOR/2005-370 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2005-3 (TEXTILES AND APPAREL)
(For text of documents, see Appendix P, p. 4P:1.)
SOR/2010-223 — REGULATIONS AMENDING THE BENZODIAZEPINES AND OTHER TARGETED SUBSTANCES REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix Q, p. 4Q:1.)
SOR/2010-230 — ANNUAL STATEMENT (BANKS AND BANK HOLDING COMPANIES) REGULATIONS
SOR/2010-231 — ANNUAL STATEMENT (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS
SOR/2010-232 — ANNUAL STATEMENT (TRUST AND LOAN COMPANIES) REGULATIONS
SOR/2010-233 — ANNUAL STATEMENT (INSURANCE COMPANIES AND INSURANCE HOLDING COMPANIES) REGULATIONS
(For text of documents, see Appendix R, p. 4R:1.)
Mr. Bernhardt: Under ``Action Promised'' are listed seven instruments. Taken together, there are 13 promised amendments in connection with those. There is also a promised amendment to the Customs Tariff and, as usual, progress on all will be chased up after the meeting.
SOR/2010-267 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (MISCELLANEOUS PROGRAM)
SOR/2011-107 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (STZ'UMINUS)
(For text of documents, see Appendix S, p. 4S:1.)
SOR/2011-42 — REGULATIONS AMENDING THE MEDICAL DEVICES REGULATIONS (1592 — CANADA'S ACCESS TO MEDICINES REGIME)
(For text of documents, see Appendix T, p. 4T:1.)
SOR/2011-47 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix U, p. 4U:1.)
SOR/2011-67 — ORDER AMENDING THE EXPORT CONTROL LIST
(For text of documents, see Appendix V, p. 4V:1.)
SOR/2011-216 — REGULATIONS AMENDING THE TETRACHLOROETHYLENE (USE IN DRY CLEANING AND REPORTING REQUIREMENTS) REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix W, p. 4W:1.)
Mr. Bernhardt: Under ``Action Taken,'' there are six instruments. Taken together, they make 12 amendments that had been requested by the committee. I draw the attention of members to the instrument making amendments to the Radio Communication Regulations. These amendments remove a number of provisions that the committee concluded had been made without proper authority. Among them are the delegation of a power to grant exemptions and one that permitted a person to operate a radio apparatus only to transmit a signal containing non-profane or non-obscene radio communications. This was clearly a limit on freedom of expression under the Canadian Charter of Rights and Freedoms. The committee had been unconvinced by the department's justification for that. The provision has now been deleted.
2011 CENSUS OF POPULATION
SI/2011-37 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON JUNE 2, 2011 (DISPATCH OF BUSINESS)
SI/2011-38 — ORDER TERMINATING THE ASSIGNMENT OF CERTAIN MINISTERS
SI/2011-39 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE STEVEN JOHN FLETCHER AND ASSIGNING THE HONOURABLE STEVEN JOHN FLETCHER TO ASSIST THE MINISTER OF TRANSPORT
SI/2011-40 — ORDER ASSIGNING THE HONOURABLE TONY CLEMENT TO ASSIST THE MINISTER OF INDUSTRY
SI/2011-41 — ORDER ASSIGNING THE HONOURABLE CHRISTIAN PARADIS TO ASSIST THE MINISTER OF AGRICULTURE AND AGRI-FOOD
SI/2011-42 — ORDER ASSIGNING THE HONOURABLE EDWARD FAST TO ASSIST THE MINISTER OF TRANSPORT
SI/2011-43 — ORDER ASSIGNING THE HONOURABLE BERNARD VALCOURT TO ASSIST THE MINISTER RESPONSIBLE FOR THE ATLANTIC CANADA OPPORTUNITIES AGENCY ACT AND THE MINISTER OF FOREIGN AFFAIRS
SI/2011-44 — ORDER ASSIGNING THE HONOURABLE MAXIME BERNIER TO ASSIST THE MINISTER OF INDUSTRY
SI/2011-45 — ORDER ASSIGNING THE HONOURABLE TIM UPPAL TO ASSIST THE PRIME MINISTER
SI/2011-46 — ORDER ASSIGNING THE HONOURABLE ALICE WONG TO ASSIST THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT
SI/2011-47 — ORDER ASSIGNING THE HONOURABLE BAL GOSAL TO ASSIST THE MINISTER OF CANADIAN HERITAGE
SI/2011-48 — ORDER DESIGNATING THE MINISTER OF FOREIGN AFFAIRS FOR THE PURPOSES OF THE NATIONAL CAPITAL ACT
SI/2011-49 — ORDER DESIGNATING THE MINISTER OF FINANCE FOR THE PURPOSES OF THE ROYAL CANADIAN MINT ACT
SI/2011-50 — ORDER DESIGNATING THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES AS THE APPROPRIATE MINISTER FOR THE CANADA LANDS COMPANY LIMITED
SI/2011-51 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT
SI/2011-52 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE RONA AMBROSE AND ASSIGNING THE HONOURABLE RONA AMBROSE TO ASSIST THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT
SI/2011-53 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT
SI/2011-55 — ORDER FIXING AUGUST 15, 2011 AS THE DAY ON WHICH THAT ACT COMES INTO FORCE
SI/2011-56 — ORDER GIVING NOTICE OF DECISIONS NOT TO ADD CERTAIN SPECIES TO THE LIST OF ENDANGERED SPECIES
SI/2011-57 — ORDER FIXING JUNE 30, 2011 AS THE DAY ON WHICH CHAPTER 8 OF THE STATUTES OF CANADA, 2011, COMES INTO FORCE
SOR/92-298 — REINSURANCE (CANADIAN COMPANIES) REGULATIONS
SOR/92-302 — REINSURANCE (FOREIGN COMPANIES) REGULATIONS
SOR/2006-86 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND III)
SOR/2007-17 — CONDITIONS FOR EXEMPTED PERSONS REGULATIONS
SOR/2007-78 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VII)
SOR/2007-149 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (SCHEDULE I)
SOR/2008-122 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)
SOR/2008-247 — SEX OFFENDER INFORMATION REGISTRATION REGULATIONS (CANADIAN FORCES)
SOR/2010-40 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1587 — FOOD ADDITIVES)
SOR/2010-60 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS
SOR/2010-115 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS
SOR/2010-169 — ORDER 2010-87-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2010-170 — ORDER 2010-87-07-02 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2010-264 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1573 — FOOD ADDITIVE)
SOR/2011-110 — ORDER 2011-87-04-03 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2011-112 — ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER
SOR/2011-113 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2011-118 — ORDER 2011-87-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2011-128 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT
SOR/2011-130 — EXPIRY OF THE APPLICATION OF SECTION 12.1 OF THE SOFTWOOD LUMBER PRODUCTS EXPORT CHARGE ACT, 2006 REGULATIONS
SOR/2011-134 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL REGULATIONS
SOR/2011-140 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2011-141 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS
SOR/2011-144 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES
Mr. Bernhardt: Under Statutory Instruments Without Comment, 45 instruments are listed that have been reviewed by counsel and found to comply with all the committee's scrutiny criteria. Copies of those are always available at the meeting should anyone wish to look at them.
The First Vice-Chair (Mr. Breitkreuz): That takes us to the end; we have gone through our agenda.
The Joint Chair (Senator Runciman): At the next meeting we will discuss at the outset the memo from general counsel related to how we can consider a number of options with respect to failings to respond in an appropriate manner to the committee going forward.
Is there anything else before we conclude?
(The committee adjourned.)