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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 5 - Evidence - December 1, 2011
OTTAWA, Thursday, December 1, 2011
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.
Senator Bob Runciman and Ms. Françoise Boivin (Joint Chairs) in the chair.
OPTIONS OPEN TO THE STANDING JOINT COMMITTEE WHEN ENCOUNTERING DELAYS
The Joint Chair (Senator Runciman): As agreed at our last meeting, first on today's agenda we will discuss the report provided by general counsel with respect to the proceeding in cases where regulation-making authorities are not responsive. Mr. Dionne Labelle expressed concerns about a number of these issues a few weeks ago. As a result, counsel has prepared this memo, which could almost serve as a handbook. It is an excellent handbook for new members joining the committee with respect to the options available to the committee.
I hope you have had an opportunity to review the document. At page 10 you will see conclusions and reference to the powers and options available. Having the options before us, we might want to discuss this morning how best to utilize those that we do possess.
I want to mention that I was at the meeting of the Standing Senate Committee on National Finance last night to talk about the effectiveness of this committee in terms of the latest budget bill of the government, Bill C-13. A number of changes were proposed in the bill were the result of recommendations, directions and guidance from this committee. Members can feel good about the work they have done in the past with respect to having an impact. That was clearly the case in evidence last night at the National Finance Committee.
One of the issues in the conclusion of the handbook is to look at particular departments or agencies where these problems seem to be endemic. We might want to ask counsel for a list of agencies and departments that have continued to be problematic throughout a number of years. We may want to consider how to approach dealing with those individuals. The bulk of business coming before this committee is dealt with in a reasonable way. Most agencies and departments respond in a timely manner and address the concerns of the committee. However, there are a few bad actors, and we may want to focus our attention on those and on how to go about addressing the issue to improve it going forward. We will open it up for discussion.
Mr. Saxton: As you rightly mentioned, the vast majority of the cases are dealt with in a timely fashion. It is only the trouble cases that we see before the committee, which, I would risk saying, is probably 10 per cent or less. It is the responsibility of members of the committee to deal with those cases on a case-by-case basis. That is our job; that is our work in this room. Therefore, it is difficult to put in place strict rules or guidelines on how to deal with them because every case is so different. I would advocate that we continue to deal with these cases on a case-by-case basis as they arise.
Senator Braley: Basically, Mr. Saxton almost took the words out of my mouth. When I read this, I said to myself, "What do I need to do to understand this?" Environment might be half to 70 per cent of these cases but there might be legal or legislative problems dealing with something, for example asbestos, that they do not want to comment on. I would have to know where the majority of such cases are from before I would take any positive action rather than on a case-by-case basis. Mr. Saxton took the words out of my mouth with regard to whether there are two ministries or three ministries or perhaps 90 per cent of them are at one ministry. I would need to know that information first.
The Joint Chair (Senator Runciman): Counsel could prepare a list of bad actors and indicate whether there is a way of doing it in terms of the problems with those agencies and departments. Following that, we can make a determination at a further meeting.
Mr. Dionne Labelle: I noted the following sentence in point 13 on page 7. It reads "Only when the Committee is satisfied that further correspondence serves no purpose will it report on the matter."
Reporting is one of the technical ways to obtain information within 120 or 150 days, is it not? There is one department in particular, the Department of the Environment, and you seemed to be saying last time that writing again would serve no purpose. That was my feeling as well.
I too would like a list of departments that pose problems, even small problems, among all the cases handled. Perhaps we would end up reporting on some of those departments.
Mr. Albas: I would like to point out again that when we talk about a case-by-case basis, we must consider that some of these files are long-standing or deeply complex and may involve many different points. It is unreasonable to start summing up and say that just because we have not seen action on one file, we should make a list of departments that are uncooperative. It is a difficult regulatory environment when there are so many moving parts. I am surprised by how long some of these cases may take, but after reading the report, we should look at each one individually, rather than compile a list of which departments are unfriendly. We should look at how we can see action. Maybe we should pick up the phone to ask for a meeting or for some communication from the department. That might help us to move forward on these files rather than write and wait for another update. There is a realm of tools that could be made available. I appreciate that counsel has put forward a reasonable argument to continue to work with departments. Just as the Chair pointed out, we have been successful as a committee in the past, and we will continue to be successful if we continue in the same format.
Senator Hervieux-Payette: I simply want to support my colleagues who want the names of the guilty parties. There are departments that we hardly ever see, which means that they make regulations that are consistent with the legislation. I think it is important not to waste our time saying the same thing to people who do not understand.
So we should resolve this issue. I do not see why there would be competent people in 15 departments and why there would be three departments where people do not know how to draft regulations. The regulations do not concern just us, but they concern Canadians as well.
I think we have an educational role to play. And we have experts. I have been on this committee for over 10 years, and I can say that we probably have the very best when it comes to the expertise of people who check the regulations. And it is done in the public interest.
I also think that there might be a technical problem with departments that come back several times a year. It is impossible that these people are voluntarily making regulations that are inconsistent with their legislation. There is a way to improve the situation. It is our role to ensure the quality of the regulations.
Mr. Breitkreuz: I have a question. I am fairly new to this committee. We do a lot of letter writing. Could some things be resolved more quickly by a telephone call? Has that ever been considered?
You are smiling and perhaps my naivety is showing, but I have often wondered if that would speed things up.
Peter Bernhardt, General Counsel to the Committee: There are discussions and conversations that go on behind the scenes. At the end of day what is needed to bring to this committee is a commitment from the regulation maker as something formal in writing that says what they are going to do. This is not to say there has not been a process in between those letters. It happens. It probably does not happen as often as it should. I will definitely grant that. However, there are meetings and conversations that take place, usually ending with us turning to the officials and saying, "That is great, now could you put it in writing and send it to us so we can put it front of the committee?"
Mr. Breitkreuz: There are a lot of things happening behind the scenes.
Mr. Bernhardt: I think it fair there could probably be more of that, which might be helpful.
The Joint Chair (Senator Runciman): We will try to move along to get to the other elements of agenda. Does anyone have any real difficulty with counsel providing us with something for the next meeting? Perhaps a highlight of what historically have been agencies that have been difficult, observations and guidance that you can provide with respect to how we can deal with that going forward?
Mr. Bernhardt: Some years ago, I believe what was done for the committee was a kind of grade that each regulation- making department was assigned. There are three areas: delay in responding per se, delay or lack of delay in actually carrying out promises, and the overall quality of the response. At that time, and I am going back 10 or 15 years, each agency was given a grade on each of those three categories. Basically that was provided for the information of members and I do not think it was a particularly formal document. However, it gave members an idea of who the truants were and who was generally good. Would that sort of thing be helpful?
The Joint Chair (Senator Runciman): It seems rather elaborate.
Mr. Bernhardt: If you want something simpler, we could do that.
The Joint Chair (Senator Runciman): Then the committee could decide whether it to anything further when that list is before us.
Mr. Saxton: I am trying to understand exactly what we would be doing with this list.
Mr. Bernhardt: It would be up to members and provided as information.
Mr. Saxton: What qualifies a certain department to be on the list? As you said, there are different ways of grading. Is it the timeliness or quality of the response? It sounds fairly subjective.
Mr. Bernhardt: There is clearly subjectivity, but that being said the chair could get a sense over time. When a response does not come, it usually falls to the chair to contact the minister saying, "Your officials have not responded despite four requests. Could you help us get a response?" You will see certain departments more than others.
Mr. Saxton: You probably have it in your head right now and after all these years you do not need much research.
Mr. Bernhardt: It does change over time because personnel change in a department. Sometimes it can be tied to when a new broom comes in and suddenly you see things improve or otherwise. However, there do tend to be certain departments and agencies that you know are going to be slow.
Mr. Saxton: Perhaps you can review your notes and come back next time. Do not circulate a list. I do not recommend that. However, you can discuss a list you made yourself with us, and open the floor to each item. Does that make sense, Mr. Chair?
The Joint Chair (Senator Runciman): I agree, but how do other members feel?
Mr. Dionne Labelle: I have full confidence in the legal team to depict for us the various problems in the files dating back to 2000, 2002, 2004 and that keep occurring in some departments. We could collect those and say that there might be grounds to act more quickly in those cases.
The Joint Chair (Ms. Boivin): I agree as well. There is some danger in circulating lists, and all the same, this is a committee that is working well. We are not here to be partisan. We just want everything to work well because the role is important.
I am seeing the same thing as everyone else. But knowing that they might be reluctant or that they are taking more time to respond, I think that we would only have to make recommendations. So knowing the department's style, could we not make a recommendation saying that a letter is no longer enough, but that we would instead recommend moving to the next step?
In any event, we are very close to this solution. Because when we are told time and again that they will do it next year, we need to do something, and we have things we can do. Perhaps not tons, but there are things: we can make them come here to explain, we can draft a report or even write to the minister, as you said.
So your guidance should be a little stricter, but not too strict. I find you polite in your recommendations sometimes. Without being impolite, we need a formula that is more assertive, without needing a list or something like that.
The Joint Chair (Senator Runciman): Are we agreed on a verbal report from counsel at the next meeting?
Hon. Members: Agreed.
SOR/2002-145—MANNER OF DISPOSAL OF DETAINED, SEIZED OR FORFEITED GOODS REGULATIONS (PRECLEARANCE ACT)
Mr. Bernhardt: This file was on the agenda at the last meeting and in light of the advice that a reply was on its way from Foreign Affairs, members decided to put it over until today. The reply was in fact received after the materials had been printed, so it was distributed under separate cover. I hope all members received that.
Issues here arise from the fact that the regulations do not bear much resemblance or little relationship to the provisions of the act itself. There are provisions that require other regulations that have never actually been made in order for the first ones to operate. There are apparent contradictions with the act and a number of anomalies. The department promised amendments to the act and regulations to deal with this, and has been reviewing the entire act for some time in light of the committee's concerns.
The reply that has been received indicates that a comprehensive legal review has lead to the conclusion "there is a need to develop an approach that would preserve the essential elements of the regulations in a manner that is consistent with the enabling authority." I take this to mean that they agree that the present regulations are not consistent with the enabling authority and that therefore the regulations are unlawful.
At the same time, the department is proposing to wait for the announcement of the shared perimeter security action plan, and any changes that will result to the act and the regulations from the implementation of that, before moving ahead so that all these matters can be dealt with in the same package. In theory, that may be well and good. The difficulty is that may all take some time.
Perhaps the committee could indicate that if this overall package does not proceed within a reasonable time, it would expect the regulations to be brought in conformity with the act regardless.
Senator Hervieux-Payette: If I have read the translation of the letter correctly, there is a commitment to amend paragraph (2)(b) and subparagraph (2)(c)(ii). Why not just simply send them to us? Giving us all these details and telling us about what will happen after the meetings with President Obama does not get us any further ahead. The role of our committee is not to decide when legislation will be made. Just amend the two points and send them to us. Will we respond by asking whether the department will take appropriate measures in the meantime? No. Let it amend its regulations based on the current act and change the act when it wants to. That answer is a little ridiculous.
Mr. Bernhardt: They are proposing to address the minor housekeeping things now because that is easier.
Senator Hervieux-Payette: Do it.
The Joint Chair (Senator Runciman): Is there any further comment or input on this issue?
Senator Moore: They are saying we have to wait to see what happens with regard to the proposed agreement on the perimeter. We do not know when and if that will happen; and in the meantime, things are not being carried out in a legal manner. If everything was done like this, where would we be? I think they should be asked to proceed.
Mr. Bernhardt: I can express that desire that we would rather see the act and the regulations amended now regardless.
Senator Moore: Yes. If everything came before us and people said we would like to wait until this gets resolved, when would things ever get done? You cannot be hanging out there in the grey zone.
Mr. Saxton: Why not ask the department when they feel they would be able to proceed? They know better than anybody.
The Joint Chair (Senator Runciman): That sounds like a reasonable first step. If there is not a viable response, we can respond again.
Senator Hervieux-Payette: I do not understand. Are we talking about when they are going to change the act or when they will amend the invalid regulations? We are all lawmakers. If this "when" applies to the act, it is as sure as knowing when we will launch a missile on the moon. We should ask "when are we going to receive the correction to the invalid sections?" If it is this "when" we are talking about, that is fine with me.
The Joint Chair (Senator Runciman): I am not clear. Let us get some clarity here. Do you want to make a motion? Clear this up, please.
Mr. Bernhardt: I suppose if there is an announcement of an action plan, there will be some proposed calendar for bringing that forth at some date, so I think it is legitimate for the committee to ask when. The answer may be it would take us just as long to amend the act now to address the committee's concerns as it would to deal with it all in one package, which may or may not be reasonable in the members' view.
On the other hand, if it is going to be open-ended, the committee can always come back to the department and say, thank you for giving us your five-year plan, but we do not think it should wait five years or four years or whatever.
I suppose the committee could ask when, and also give the caveat that it is the committee's expectation that this will be wrapped up in a reasonable period of time, so as to put the department on notice when they are giving the "when" that the committee might not be happy if the answer is five years or we are not sure or whatever.
Mr. Saxton: That sounds logical to me.
Senator Moore: To me as well.
The Joint Chair (Ms. Boivin): Can we be clear on one thing — the "when" is for the bigger picture. At the same time, you can still say they agree that 2(b) and 2(c)(ii) can be done and we expect this one in a timely fashion. When is the first part, and please proceed with the rest since we all agree on that.
Mr. Bernhardt: We can ask "when" twice as well — when for the easy fixes and when for the bigger picture.
The Joint Chair (Senator Runciman): There seems to be a consensus on that.
SOR/2005-39 — REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS
Mr. Bernhardt: This is the other file that was put over from the last meeting.
An amendment to the Department of Veterans Affairs Act has been promised. On September 29, the committee wished to seek a progress report and asked for a reply within 30 days. When the file was before the committee two weeks ago, no reply had been received, but it was decided to put off dealing with it until after the discussion that led off this morning's meeting.
In the meantime, we did send another letter to the department, advising them that the file would be on the agenda for this morning and also letting them know that members were dissatisfied at the last meeting that no reply had yet been received and suggesting it would be desirable if they had a reply before the committee this morning. We still have no answer.
Mr. Saxton: Mr. Chair, I think we do need to put some heat to their feet on this one. Writing to the minister and asking for a response is probably the next step, if counsel agrees that is the logical way to go.
The Joint Chair (Senator Runciman): Is there agreement with that approach?
Hon. Members: Agreed.
SOR/2006-167 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (HARMONIZED SYSTEM CONVERSION, 2007) NO. 1
(For text of documents, see Appendix A, p. 5A:1.)
Evelyne Borkowski-Parent, Counsel to the Committee: This order implemented in the Customs Tariff the 2007 conversion to the harmonized commodity description and coding system. As detailed in the note prepared for members, there were 13 points of drafting raised in relation to this file. Of these, action has been taken on 4 points, and what appear to be satisfactory answers were provided for another 6 points.
I would like to point out that since that note was written, it has been brought to our attention that whereas the department originally maintained it could not proceed with the amendment requested in point 11 because of the rules of the harmonized system, it nonetheless did so in a package published earlier this month.
Bill C-13, which as of today is at the second reading stage in the Senate, would repeal one of problematic tariff items. Finally, the Department of Finance is still consulting Canada Border Services Agency on the remaining two points.
If members agree, a letter could be drafted to the department inquiring on the status of consultations with CBSA.
The Joint Chair (Senator Runciman): Is there agreement on that approach?
Mr. Breitkreuz: Can we get a reply regarding the amendments on when the changes will be made?
Mr. Bernhardt: We will ask for that; things seem to be moving quickly.
Mr. Breitkreuz: Good.
SOR/2003-363 — ANTARCTIC ENVIRONMENTAL PROTECTION REGULATIONS
(For text of documents, see Appendix B, p. 5B:1.)
Mr. Bernhardt: Under "Reply Unsatisfactory," there is one outstanding matter concerning these regulations. The Antarctic Environmental Protection Act provides that the minister can issue a permit authorizing persons on a Canadian expedition or authorizing a Canadian vessel or aircraft to be in the Antarctic if the minister is satisfied that a waste management plan and an emergency plan have been prepared in accordance with the regulations. There is then a power to the Governor-in-Council to make regulations respecting these plans. The problem is that the regulations go well beyond this and impose a series of requirements on permit holders outside the plans.
A 2010 amendment was intended to remedy this. That amendment says that every waste management plan must include an undertaking by the permit holder to comply with the regulations. This is supposed to explicitly link the requirements in the regulations to the development of a waste management plan and to ensure that permit holders incorporate the requirements of the regulations into their plans.
However, it seems obvious that the permit holders would be required to comply with the regulations regardless of whether they have given an undertaking to do it. You do not need to sign a contract to say you will obey the law. You are required to obey the law; that is the point of law. The department agrees that the amendment adds nothing legally to the regulations but argues that it is useful and necessary to guarantee respect of the international protocol that this implements and to provide clear information to permit applicants. If the amendment has no legal effect, the only use it has is to provide information to people.
The committee has always taken the position that it is inappropriate to use legislation as an information bulletin. As for how this guarantees respect of the protocol and ensures implementation of the regulations, it is difficult to see how this can be accomplished by a statement that everyone agrees has no legal effect.
Aside from this, the issue of the validity of sections 37 to 44 of the regulations still remains. As the note in the materials explains, nothing in the act authorizes regulations prohibiting or regulating disposal of waste other than through these waste management plans, the issuing of the permits and the putting of conditions in the permit. These regulations contain prohibitions and exceptions to the prohibitions that apply as part of any permit and plan. Some of them would apply to people who find themselves in the Antarctic even if they do not have a permit or a plan. The department argues that it applies the provisions to permit holders as a matter of practice, but that does not change the fact that is not how the regulations are written.
In this case, fortunately for the department, there are ways to do what it wants to do. For example, the act provides that subject to the regulations, the minister can include in a permit any condition that he or she considers appropriate. One solution would be to put the requirements of these provisions of the regulations in every permit. The act also explicitly makes it an offence to contravene the conditions of the permit, so their penalty provision would still apply there. Another approach would be to require in the regulations that every waste management shall contain these things that are now set out in the regulations, which would get them to the same point. The difference would be that it would be done legally and through the proper method.
The department states that it will take these suggestions into account and will make any changes to improve readability in due course if necessary. I would suggest that it is not a question of readability but one of legality. Perhaps the department should be advised of that and an assurance sought that the necessary revisions will be made within a reasonable period of time.
The Joint Chair (Senator Runciman): Was this our first contact with the ministry on this issue?
Mr. Bernhardt: No. This was first before the committee in 2007. There have been two or three exchanges of correspondence. The difficulty is getting the department to recognize that the powers in the act are quite limited. They deal with granting permits and requiring people to put certain things in a plan and there is nothing in place to permit you to regulate after the permit is issued. The idea is to do that through the permit system. Those requirements would be in the permit.
Mr. Albas: I read through the report and have to agree with counsel. It seems to be a question of legality not readability. We should simply advise the department that we are of that viewpoint and ask them to add the stipulations to the permit. That seems to be a way where everyone wins and the process is shorter and well within the ability of the department to do. I would suggest that we move forward in that way.
The Joint Chair (Senator Runciman): Have we done that in the past? Is this a repeated message or is it new guidance?
Mr. Bernhardt: The correspondence is still evolving. They already tried to fix it once, which is part of the problem, in 2010. The way they tried to fix it showed that they did not understand the problem. In fact, they left the problem they already had and compounded it, to some extent, by adding something to the regulations that serves absolutely no purpose. The last exchange of correspondence pointed out that the 2010 fix was not a fix at all. We received a reply to that analysis and criticism.
Hopefully, we are creeping toward bringing them around at least to understanding what the regulations say compared to what the act contemplates being done.
The Joint Chair (Senator Runciman): Is there agreement on that approach?
Senator Moore: I want to clarify what we are doing.
Mr. Bernhardt: We will write to the department along the lines of what is in the note. We will make those arguments and conclude with the suggestion that they still need to make further amendments to the regulations and, in this case, that there are ways they can go about doing things.
Senator Moore: Would we be too aggressive if we were to ask them to indicate some kind of schedule as to when they expect to have this done? Is that appropriate?
Mr. Bernhardt: As yet, they have not agreed to do anything.
Senator Moore: They have to do something.
Mr. Bernhardt: They tried once. There has been good faith shown with the attempt to fix it, which was unsuccessful.
Senator Moore: Okay, I will leave it.
Senator Braley: The only thing I did not hear was that you had suggested they add the stipulation to the permits by way of a recommendation on how they can solve their problem, as I heard from Mr. Albas. That could solve the problem, so maybe we can get it done.
Mr. Bernhardt: Hopefully that will encourage them to take action.
Senator Braley: If we do not add it, they may not see it themselves. Either that or make a phone call beforehand to say that it is coming with a suggestion on how it can be done.
Mr. Bernhardt: We will lay it out for them.
SOR/2010-182 — ORDER AMENDING SCHEDULE 2 TO THE CANADA NATIONAL PARKS ACT
(For text of documents, see Appendix C, p. 5C:1.)
Ms. Borkowski-Parent: This file deals with two drafting issues. In the first case, the department provided an explanation relevant to the request for clarification that had been made.
As for the second, the department is committed to making the correction requested in the context of a statutory review, but did not provide a timeframe. With your agreement, counsel could provide the usual follow-up and ask Parks Canada for a more specific timeframe.
The Joint Chair (Ms. Boivin): Okay? I like it. I always get the satisfactory responses.
SOR/2011-68—REGULATIONS AMENDING THE REGULATIONS PRESCRIBING PUBLIC OFFICERS
(For text of documents, see Appendix D, p. 5D:1.)
Ms. Borkowski-Parent: This file concerns ceremonial rules and, more particularly, the table of precedence for Canada. Under the table, mention of the Senate should precede that of the House of Commons.
The Joint Chair (Ms. Boivin): I was a bit insulted by that, but that is okay.
Ms. Borkowski-Parent: Counsel wrote to the Department of Justice to remind them of the order of precedence, which had not been followed in the passage, security personnel employed by the House of Commons or Senate.
The department agreed to the suggestion to add an article to the regulations manual dealing with the order of precedence, so if members are satisfied this file can therefore be closed.
SOR/2008-181—REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1369—INTERIM MARKETING AUTHORIZATIONS)
(For text of documents, see Appendix E, p. 5E:1.)
Mr. Bernhardt: The Food and Drugs Act permits the minister to issue an interim marketing authorization for a food if the minister determines the food would not be harmful to the health of the purchaser or consumer. Paragraph B.01.056(4)(e) of the Food and Drug Regulations seeks to limit the minister's power by restricting the circumstances in which an interim marketing authorization can be issued in relation to the addition of vitamins, minerals or amino acids to food. While the minister may decide — as a matter of policy — that certain authorizations would generally only be issued in certain circumstances, there appears to be no authority to make regulations imposing that restriction on the minister. He is given that discretion under the act and possesses it by virtue of an act of Parliament.
The department has agreed to repeal the paragraph in question. This was originally to be done last year. Health Canada decided to review its overall policy regarding fortification of foods with vitamins, minerals and amino acids. The department assures the committee it will proceed as soon as possible and has been quite diligent in providing progress reports to date. However, no forecast time frame has ever been given. The first question is whether members are satisfied to see this amendment included as part of a broader review. If they are, perhaps the department could be asked if it could provide a time frame for completing that review.
Mr. Trost: As someone who — while not new to the house — is new to this committee, it makes sense they are giving reports as far as what they are doing. However, there is no timeline. I think it would be useful to have some sort of timeline given. If it comes back that we do not have a timeline, we can do something else. If we do have a timeline, then we have a marker to work from. That makes sense to me.
The Joint Chair (Ms. Boivin): Excellent suggestion. Do we have a consensus?
Hon. Members: Agreed.
The Joint Chair (Ms. Boivin): Good.
SOR/2005-149—EXPORT AND IMPORT OF HAZARDOUS WASTE AND HAZARDOUS RECYCLABLE MATERIAL REGULATIONS
(For text of documents, see Appendix F, p. 5F:1.)
Ms. Borkowski-Parent: Seventeen issues, both legal and drafting, were raised in the first letter counsel sent in September 2005.
In the letter of January 30, 2006, the Department of the Environment either provided satisfactory replies or it promised to make the required amendments for the remaining points.
At the time, the next review of the regulations was projected to be in 2010. At its meeting of May 17, 2007, the committee agreed to this schedule, but it had also asked for assurance that, if the department encountered delays, it would make the amendment independently of the regulatory review. However, the schedule was not respected, yet again.
But the last letter we received said that publication in Part 2 of the Canada Gazette would happen at the start of 2012. Apart from that point, there is one outstanding issue concerning the amendment of paragraph 191(b) of the Canadian Environmental Protection Act. The department stuck to what it originally said, namely, that it would make the amendment at the earliest opportunity, without however, giving a timeframe.
Since it is almost 2012, we could send a letter either now or at the start of the new year, depending on what the committee wishes to do, asking when the regulations would be amended. In our letter, we could ask for a firm commitment to that effect.
Senator Hervieux-Payette: Okay. Good suggestion.
Ms. Borkowski-Parent: Should I wait until the start of the new year to follow up?
The Joint Chair (Ms. Boivin): We are almost there, but as soon as possible, depending on your availability.
SOR/2010-57 — REGULATIONS AMENDING THE PCB REGULATIONS
(For text of documents, see Appendix G, p. 5G:1.)
Ms. Borkowski-Parent: The sole point raised in this file was the discrepancy between the English and French version of paragraph 23(b) of the PCB regulations. The English specified that it was the person authorized to store the PCBs that had to destroy them. The French contained no such requirement. The discrepancy was raised in a letter dated June 4, 2010. The department responded on August 5, 2010, that it would seek amendment to bring the two versions in line. Counsel has been trying to obtain the time frame for the amendment ever since. In August of this year, Environment Canada finally stated the intention of developing miscellaneous amendment regulations, which would cover an array of regulations made under subsection 93(1) of the Canadian Environmental Protection Act. This process is expected to start in February 2012, with an anticipated prepublication in the Canada Gazette in the summer of 2013. If this is acceptable to members counsel could monitor the progress on this file.
The Joint Chair (Ms. Boivin): Especially since they are giving you a telephone number to contact them, so go right ahead and call them.
Does everybody agree with that?
Senator Moore: Did you just say 2013?
Ms. Borkowski-Parent: Yes, for Part 1 prepublication.
Senator Moore: Is that a normal rhythm for that sort of thing?
Ms. Borkowski-Parent: Considering it would cover more than one regulation — it is a package of regulations made under the same enabling provision — it could be. They have the added burden of having to go through a mandatory prepublication in Part 1.
Senator Moore: Okay.
The Joint Chair (Ms. Boivin): It is Mr. Moffet again. I am more and more eager to meet with him.
Does everybody agree?
Some hon. members: Agreed.
SOR/94-348 — ROYAL CANADIAN MOUNTED POLICE PENSION CONTINUATION REGULATIONS, AMENDMENT
SOR/95-571 — ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS, AMENDMENT
SOR/98-531 — REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS
(For text of documents, see Appendix H, p. 5H:1.)
Mr. Bernhardt: A number of amendments to address points of drafting and to remove discrepancies between the English and French versions of these regulations have been promised. There have been a number of delays and postponements. In a February 2008 letter, the Commissioner of the RCMP stated he was confident that they would be in a position to address the file in fiscal year 2008-09. Drafting instructions were sent to the Department of Justice, but apparently new issues arose that required additional research and consultation. In December 2009 it was reported that drafting was under way but that considerable work remained. In June 2010 it was reported that no progress had been made due to staffing issues. By last August, someone had been assigned to the file and drafting instructs were said to be sent to Justice soon.
Presumably this refers to revised drafting instructions, given that the committee had already been advised two years ago that the drafting instructions had been sent to the Department of Justice. Perhaps the committee could ask for a firm date by which these amendments will finally be made. If patience is wearing thin I suppose the committee could also indicate that in the absence of a firm timeline — or if that timeline should not be met — the committee would wish the appearance of the appropriate officials to explain why it was not possible to make the necessary amendments in a reasonable period of time.
Hon. Members: Agreed.
Mr. Bernhardt: Once again, if members wish, we could deal with the next three numbers as groups.
The Joint Chair (Ms. Boivin): That sounds good.
SOR/98-429 — MACKENZIE VALLEY LAND USE REGULATIONS
(For text of documents, see Appendix I, p. 5I:1.)
Para2>SOR/2009-51 — REGULATIONS AMENDING THE DISCLOSURE OF CHARGES (RETAIL ASSOCIATIONS) REGULATIONS
(For text of documents, see Appendix J, p. 5J:1.)
SOR/2009-269 — ORDER AMENDING THE EASTERN TOWNSHIPS WOOD PRODUCERS' LEVIES (INTERPROVINCIAL AND EXPORT) TRADE ORDER
(For text of documents, see Appendix K, p. 5K:1.)
SOR/2010-128—REGULATIONS AMENDING CERTAIN DEPARTMENT OF INDUSTRY REGULATIONS
(For text of documents, see Appendix L, p. 5L:1.)
SOR/2010-235—EXEMPTION FOR PUBLIC NOTICES OR DOCUMENTS (TRUST AND LOAN COMPANIES) REGULATIONS
SOR/2010-236— EXEMPTION FOR PUBLIC NOTICES OR DOCUMENTS (INSURANCE COMPANIES AND INSURANCE HOLDING COMPANIES) REGULATIONS
SOR/2010-237 — EXEMPTION FOR PUBLIC NOTICES OR DOCUMENTS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS
SOR/2010-238 — EXEMPTION FOR PUBLIC NOTICES OR DOCUMENTS (BANKS AND BANK HOLDING COMPANIES) REGULATIONS
(For text of documents, see Appendix M, p. 5M:1.)
Mr. Bernhardt: Under "Action Promised," there are 10 specific amendments promised in connection with the 8 instruments listed under this heading. As always, we follow up progress of those as a matter of course.
It is also worth noting that the amendments to the Eastern Townships Wood Producers' Levies (Interprovincial and Export) Trade Order also made three promised amendments. As well, the instrument registered as SOR/2010-128 made 51 amendments that had been promised to the committee, including removing a provision the committee considered to be unlawful, and the elimination of a subjectively worded criteria.
LETTERS PATENT AMENDING THE GENERAL CAMPAIGN STAR AND GENERAL SERVICE MEDAL REGULATIONS, 2009
LETTERS PATENT REPEALING THE GENERAL CAMPAIGN STAR AND GENERAL SERVICE MEDAL REGULATIONS
(For text of documents, see Appendix N, p. 5N:1)
LETTERS PATENT AMENDING THE SOUTH-WEST ASIA SERVICE MEDAL REGULATIONS, 2009
LETTERS PATENT REPEALING THE SOUTH-WEST ASIA SERVICE MEDAL REGULATIONS
(For text of documents, see Appendix O, p. 5O:1)
SOR/2008-111 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CUSTOMS ACT (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix P, p. 5P:1.)
SOR/2010-284 — REGULATIONS AMENDING THE CANADA PENSION PLAN INVESTMENT BOARD REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix Q, p. 5Q:1.)
SOR/2011-97 — REGULATIONS AMENDING THE REGULATIONS RESPECTING APPLICATIONS FOR MINISTERIAL REVIEW — MISCARRIAGES OF JUSTICE (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix R, p. 5R:1.)
Mr. Bernhardt: There are seven instruments listed under "Action Taken," and altogether they make thirteen amendments that had been promised to the committee. As well, I note that the wording used in the coming into force provision of the amendments to the Canada Pension Plan Investment Board Regulations follows from the committee's examination of previous amendments to these regulations. The committee had suggested that wording should be changed in the future and, in fact, it has been.
SI/2011-59 — ORDER TRANSFERRING THE INTERNAL ELECTRONIC STAFFING PROCESS FROM HUMAN RESOURCES AND SKILLS DEVELOPMENT TO THE PUBLIC SERVICE COMMISSION
SI/2011-60 — ORDER DESIGNATING THE MINISTER OF INDUSTRY FOR THE PURPOSES OF THE CANADA NOT-FOR-PROFIT CORPORATIONS ACT
SOR/2002-413 — REGULATIONS AMENDING THE PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST FINANCING REGULATIONS
SOR/2005-187 — REGULATIONS AMENDING THE FORMAL DOCUMENTS REGULATIONS
SOR/2006-156 — REGULATIONS AMENDING THE TRANSPORTATION OF GOODS REGULATIONS
SOR/2006-280 — REGULATIONS AMENDING THE TAXES, DUTIES AND FEES (GST/HST) REGULATIONS
SOR/2006-350 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2008-26 — REGULATIONS AMENDING THE TRANSPORTATION OF GOODS REGULATIONS
SOR/2008-139 — REGULATIONS AMENDING THE DNA IDENTIFICATION REGULATIONS
SOR/2008-200 — REGULATIONS AMENDING THE NON-MAILABLE MATTER REGULATIONS
SOR/2009-127 — REGULATIONS AMENDING THE MANITOBA FISHERY REGULATIONS, 1987
SOR/2009-298 — VANCOUVER 2010 AVIATION SECURITY REGULATIONS
SOR/2010-42 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1610 — FOOD ADDITIVES)
SOR/2010-54 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (UNRELIABLE TRAVEL DOCUMENTS)
SOR/2010-55 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
SOR/2010-82 — ORDER 2010-87-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2010-118 — REGULATIONS AMENDING THE WILDLIFE AREA REGULATIONS
SOR/2010-130 — 13TH IAAF WORLD JUNIOR CHAMPIONSHIPS IN ATHLETICS REMISSION ORDER, 2010
SOR/2010-136 — ORDER AMENDING THE ORDER DESIGNATING MANITOBA FOR THE PURPOSES OF THE CRIMINAL INTEREST RATE PROVISIONS OF THE CRIMINAL CODE
SOR/2010-141 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1514 — FOOD ADDITIVES)
Mr. Bernhardt: There are 20 instruments listed that counsel has reviewed and found to comply with all the committee's criteria. As always, copies of those are available for inspection this morning, if any member wishes to see them.
The Joint Chair (Ms. Boivin): That sounds good. Thank you all.
The Joint Chair (Ms. Boivin): Colleagues, we have a scheduled meeting for December 15, which is exactly two weeks from today. Do we keep the agenda as is?
Hon. Members: Agreed.
The Joint Chair (Ms. Boivin): So far, so good; excellent.
Mr. Pacetti: If there are items on the agenda and we need to clear them and we are here, we might as well do so.
Mr. Bernhardt: We will go through everything and if there is anything that looks urgent, we will bring it forward.
The Joint Chair (Ms. Boivin): That sounds good.
(The committee adjourned.)