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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 9 - Evidence - May 29, 2014
OTTAWA, Thursday, May 29, 2014
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 (Joint Chair) and Mr. Mauril Bélanger (Vice-Chair) in the chair.
PROPOSALS FOR A MISCELLANEOUS STATUTE LAW AMENDMENT ACT, 2014
The Joint Chair (Senator Runciman): Item 1 under "Special Agenda Items" relates to Proposals for a Miscellaneous Statute Law Amendment Act, 2014. More than 170 amendments to various acts are included in the proposal. It has been placed before each house of Parliament. In fact, the Standing Senate Committee on Legal and Constitutional Affairs will be receiving a briefing on the proposed act later today. Some of these changes are as a direct result of the work of our committee. I'll turn it over to counsel.
Peter Bernhardt, General Counsel to the Committee: Thank you, Mr. Chair. That's correct.
The committee has been promised that twelve amendments would be included in the next set of proposals. In fact, four of those are actually in the proposals. Another four of those twelve, however, are in other bills that are already before Parliament. There are four promised amendments that are not in the proposals.
In addition, the good news is that there are eight amendments that were promised to the committee that the committee had not been told would be in the proposals and that in fact are in the proposals. Altogether, there are an even dozen amendments promised to the committee that are in the proposals for the miscellaneous statute law amendment bill. All of this is summarized in the note in the materials and the charts.
We've also included correspondence on the four items that are not in the proposals. To go over those very briefly, two involve removing the name of an organization from schedules to the Access to Information Act and the Privacy Act. Back in 2009, the Clerk of the Privy Council himself assured the committee that the amendments would be made through the next set of proposals. In fact, other amendments deleting names of organizations from these same schedules are included in the proposals, but not the amendments promised to the committee.
The third promised amendment that wasn't included would change a reference in a provision of the Canada Shipping Act from subsection 20(7) to subsection 20(2). This is necessary because subsection 20(7) does not exist.
The final amendment would be to subsection 76(1) of the Yukon Environmental and Socio-economic Assessment Act to remove a discrepancy between the two versions. Last July, the department advised the committee that an amendment had been drafted and would form part of the next miscellaneous statute law amendment bill.
Those are the four items that are not found in the proposals for the bill that the committee had been told would be.
Mr. Albas: I was pleasantly surprised to read through the report. Obviously, having eight out of twelve isn't perfect, but having another eight files being tangibly addressed is very welcome news. Given that there are still four outstanding items, I would suggest we write back to the pertinent departments, ask them for an explanation as to why it wasn't included and seek resolution perhaps through other means.
Senator Moore: Further to the comment from Mr. Albas, is there a way that we could get those included? Could they be brought to the committee as amendments? Do we have to wait until the next round of miscellaneous statute law amendments?
The Joint Chair (Senator Runciman): My understanding is that we will receive a briefing from Justice officials today on essentially what's involved in the proposed legislation. The house committee is going to receive the same kind of briefing. I think that we will have, and I certainly suggested that this committee have, some opportunity for input into the legislation and comments going forward.
Mr. Albas: With all due respect, Mr. Chair, the committee already has placed its opinions on these various things. Again, there are more than we were initally —
The Joint Chair (Senator Runciman): I'm talking about the omissions.
Mr. Albas: One of the things that I think is important to bear in mind is that we still just have four outstanding items. Really, it's up to the Standing Senate Committee on Legal and Constitutional Affairs and the Standing Committee on Justice and Human Rights to actually go through their process for that. It's a separate and removed process, obviously, but I think we need to focus on the four bits and see what other means we can do.
The Joint Chair (Senator Runciman): Sure, but I think that input from this committee, from our perspective, would be most welcome.
We're agreed with that course of action?
Hon. Members: Agreed.
SOR/76-373 — PRINCE EDWARD ISLAND POTATO MARKETING LEVIES ORDER
The Joint Chair (Senator Runciman): Item 2 on our agenda has been before the committee for 37 years. Counsel met recently with the Farm Products Council of Canada to discuss timelines for amendments.
Evelyne Borkowski-Parent, Counsel to the Committee: The timeline for this file is detailed in the note included with the material distributed for this morning's meeting. The file dates back to the 1970s, but the problems were raised more recently, in 2011, I believe.
The committee will recall that at the meeting on March 27, 2014, the committee asked that counsel discuss the problems related to this specific order, and other systemic problems regarding a number of other orders on agricultural products.
On May 6, Mr. Bernhardt and I met with officials from the Farm Products Council of Canada and Agriculture and Agri-Food Canada.
With respect to the order on Prince Edward Island potatoes, according to the council, the provincial marketing board was committed to making the changes required to address the problems.
As for whether the producers had been made aware of the unlawful collection of levies, we were told that the producers had not been advised but that, one way or another, they should gain knowledge of the situation when the order is changed.
The assertion to the board that levies had been collected illegally for over 20 years seems to have made quite an impression. The board's counsel had to put its insurer on notice in case of a claim by producers. According to the department, such a claim was unlikely, as any repayment of past levies would undoubtedly result in an increase of current levies, which then in turn would drive prices up and render P.E.I. potatoes less marketable on the interprovincial and international markets. This of course remains speculation. That being said, counsel suggested the alternative of introducing retroactive legislation validating past collection of levies, but there seemed to be little appetite to do so.
Furthermore, counsel wanted to know why this order had not been identified as at risk of legal exposure. It appears that the council went through the first step of finding delegation orders for which a levies order had never been made. Levies orders which had not been updated in the recent past were part of the second stage. The amendments are still at a preliminary stage, and it is expected that an estimation of the work to be done and the time frame will be known at the end of June.
As for other orders, the council has identified 82 orders that are in need of revisions; 54 would be amended to remove the words "by order." According to the interpretation by the Department of Justice, by removing these words, the provincial marketing boards would no longer have to issue a federal order to collect levies, which would provide greater flexibility to the provincial boards in imposing levies and resolve problems arising from the time that invariably elapses between the moment a provincial order is made and the moment the federal order is amended.
Conversely, this new approach would mean that instruments would no longer be registered and published, in turn leading to issues of accessibility and continuing problems with keeping the levies orders up to date.
In that regard, the council is considering the possibility of mandatory annual reporting by the boards of their levies orders.
For updates on the 82 orders, the work is still in its infancy. The council is still waiting for guidance from Treasury Board before it can start drafting.
Mr. Albas: I want to thank counsel for meeting with the Farm Products Council. This is an important file spanning right across the country, but we are more focused at the federal end so I will be addressing comments toward that.
On the work counsel has done with the Farm Products Council in identifying the systematic problems, they've done an excellent job. Obviously the work is still at the beginning stages and I believe we can play a supportive role in helping to encourage a response.
I would start by writing a letter to the federal minister in regard to raising the issue, saying that the committee, through counsel, is working with the Farm Products Council and we encourage him to work his provincial and territorial counterparts to deal with some of these systemic issues. We have suggested that retroactive legislation may be appropriate. I think we should re-emphasize the point that it may be something the government should look at as this process carries forward.
I also believe that we should discuss with the minister. The bottom paragraph on page 3 talks about withdrawing the words "by order." We should point out that while we think it would be a good solution, there are some concerns as far as accountability and transparency are concerned. That isn't to say it's not probably a far easier option, but there are risks and downfalls and I think we should advise the minister of that.
Finally, I do believe we can play a supporting role in regards to this. To the last comment on page 4, which states that "Once again, the work is still in its infancy after some six years, as Council is still waiting for guidance from Treasury Board before it can start drafting," I suggest we write a second letter to the Farm Products Council thanking them for the meeting and outlining counsel's desire to work with them. It would cc the Treasury Board along with that, saying we hope Treasury Board would be able to support you as this process continues. It's just a nice way of bringing them into the fold and asking them to also play a supportive role.
Ms. Quach: Since this file has been open for 37 years, if we consider it important, we should resolve it quickly. If no one knows what is happening with the levies, this should be resolved. Counsel has asked for clarification to require annual reports from the boards. It would be a good idea to include this item in the letters.
I find it ridiculous that it is all still in its infancy after 37 years. We need a clear and specific time frame to determine what Treasury Board's guidance is, given that we are still waiting for that guidance to be able to draft something. I would include that as well in our letters to the minister.
Senator Hervieux-Payette: I would like to ask our legal counsel what the decision line is for all the orders. Where do they go? Who approves them? Where are they issued? In the end, who ensures they are implemented and executed? The process does not seem clear to me. Which council members appoint them? How do those people make their decisions? Do they have representatives in each province?
Overall, I find it to be a fairly vague organization. I think it would be important to clarify the decision-making process in this case. One part of the problem lies in the fact that we do not have anyone who does the review and provides approval in the end. Even if it seems to fall under Agriculture and Agri-Food Canada, it seems that those people do not supervise the council as such. I think it is important to know who the request goes to, and we need to ensure there is follow-up.
Ms. Borkowski-Parent: First, I would like to respond to Ms. Quach's comment. Although the order dates back to 1977, the problem with the collection of levies was identified when counsel re-examined the order in 2010-11. So the case does not necessarily stretch back 37 years. Since the regulation has not been amended since then, when we reviewed it in another context, we could see that the contributions had not been updated. That is what brought the problem to light.
I would now like to respond to the other question. In general, the Governor-in-Council delegates the authority or power to the provincial marketing boards to collect levies on agricultural products destined for the provincial and international markets. An order is in place where the power is delegated. Then, the provincial board makes a levies order that indicates the amount of the levy the producers have to pay.
The Farm Products Council plays a supervisory role with all these provincial boards. Based on my understanding of the make-up of the Farm Products Council board of directors, there is some geographic representation. Their role is really to supervise the provincial boards with respect to levies orders and delegation orders.
Senator Hervieux-Payette: Do those people have the necessary expertise? Are they supported by a group of professionals who provide them with advice? It seems to me that they do not work full time; they seem to sit on an ad hoc basis. There is a name, but not a permanent working body. Am I incorrect?
Ms. Borkowski-Parent: I may not be the best person to comment on the make-up of the board. I can tell you with respect to these orders that the responsibility was ultimately given to the provincial boards, which I imagine vary in size and make-up. Within these provincial boards, in some cases, they do not seem to be aware of the fact that the federal order needed to be up-to-date and things were being based only on the provincial levies order.
Senator Hervieux-Payette: Am I to think that we are currently confirming past mistakes by accepting regulation by delegation at another level? That is precisely the problem, that at a given time, we lose control when we subdelegate. I think that is what we are talking about; but we are talking about hundreds of millions of dollars, because all of these organizations regulating food market products still represent significant amounts. This does not currently seem to be well-organized such that the Department of Agriculture and Agri-Food has the last word, supervises, refers and ensures that all these things are done. So who do we write to?
Ms. Borkowski-Parent: I think that in light of the problems raised, the Farm Products Council is well aware of the legal risks associated with the way things have been done in the past. There is a genuine willingness to have everything up-to-date and compliant. A certain part of the process still comes under the provincial boards, but thanks to the committee's work, a review was done to identify the risks, and correct them in the future.
Senator Hervieux-Payette: Would my colleagues be opposed to sending a copy of our correspondence to the minister? In the end, I think the minister is the one who makes the legislation that allows these things to be done, and he should be aware that there have been major problems and that they at least need an organization to oversee all of that and, above all, ensure that things are done legally.
The Joint Chair (Senator Runciman): We've had a number of suggestions since Mr. Albas made his first proposal. Do you want to respond?
Mr. Albas: I want to reemphasize that I'm glad to hear that many members also feel these are also systemic problems that need to be tackled. I appreciate there is frustration from various members on this, and I that's why I made the suggestion that we inform the minister of the overall issue and tell him we are taking a supportive role in helping the Farm Products Council work with this multitude of marketing boards.
In answer to the earlier question as to who are on these boards, it seems to be that many of these boards are keenly focused on marketing activities, but we also need them to be focused on governance, as well. This is about rectifying the problem.
Again, we should write the minister, encourage him to work with provincial and territorial counterparts where appropriate, look at retroactive legislation as more details come forward — we've gone from a few issues to 84 different orders that may need to be revised — and look at the way "by order" is structured and perhaps an alternative way of accounting. I'm glad to hear the NDP is supportive of looking at other measures to ensure accountability. We ought to encourage, through a separate letter, the Farm Products Council to continue to work on it. They are the umbrella organization tasked with this, and it is a large job to work with so many actors, provincially and federally.
Mr. Chair, I hope we would get support for two such letters.
The Joint Chair (Senator Runciman): Is there agreement with that approach?
Hon. Members: Agreed.
The Joint Chair (Senator Runciman): Thank you.
Senator Moore: Chair, one point: We're going to do the copy to Treasury Board as suggested on the second letter to the council?
The Joint Chair (Senator Runciman): Will there be a copy to the Treasury Board?
Mr. Albas: Part of the second letter thanking the Farm Products Council.
SOR/2011-262 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
The Joint Chair (Senator Runciman): Item 3 on our agenda was discussed at our last meeting. A number of you had your own definition of the term "dating." Counsel was asked to prepare a draft response, and that's before you today.
Ms. Ambler: Thank you, counsel, for drafting the letter and finding such a lovely definition of the word "dating." I recommend we approve the letter and send it off.
The Joint Chair (Senator Runciman): Does anyone have trouble with that definition?
We will send that letter.
SOR/97-6 — FEEDS REGULATIONS, 1983, AMENDMENT
SOR/97-9 — SEEDS REGULATIONS, AMENDMENT
SOR/2001-274 — REGULATIONS AMENDING THE SEEDS REGULATIONS
The Joint Chair (Senator Runciman): Next is Item 4 under "Letters To and From Ministers." The concern here is that provisions prohibiting the releasing into the environment of new feeds or seeds without permission of the minister are not authorized by the act.
Do you wish to elaborate on that, counsel?
Mr. Bernhardt: That is the issue, Mr. Chair. For the past several years, the committee has been told by the Minister of Agriculture and Agri-Food that amendments to the two acts, the Feeds Act and the Seeds Act, to address the concern were under development.
As you know, you and your joint chair wrote in November to the Minister of Health — because responsibility for the Canadian Food Inspection Agency had been transferred to the Minister of Health — to ask when the bill might be introduced. The minister's letter advises that these two acts remain under the authority of the Minister of Agriculture and are administered and enforced on his behalf by the Canadian Food Inspection Agency. Be that as it may, the minister also notes that amendments to the acts have been introduced as part of Bill C-18.
Having looked at the bill, however, it seems that the amendments to the Feeds Act and the Seeds Act in Bill C-18 would not address the committee's concern. By way of illustration, the bill would change the long title of the Feeds Act from "An Act to control and regulate the sale of feeds" to "An Act respecting feeds." It adds a definition of "environment" to the act, but it's still the case that the act would only govern the manufacture, sale and import of feeds. As the committee's position reflects, release into the environment does not necessarily involve those things.
As well, risk of harm to the environment is stated in Bill C-18 to be one purpose for which manufacture, sale, and import or export can be regulated, and it's also one of the criteria when you evaluate a feed or a seed. None of this necessarily, however, deals with release into the environment, per se.
Having said that, it may be that what is contemplated is that amendments to the regulations that would resolve the committee's concern will be made after Bill C-18 passes. For example, you can envision a scenario where the risk of harm to the environment is considered in the evaluation of the feed prior to the approval stage. If that were the case, it could then perhaps be considered that the restriction on releasing into the environment after approval wouldn't be necessary anymore because that issue would have been dealt with pre-approval. That provision in the regulations that the committee objected to could simply be deleted.
However, that's purely speculation on our part. This morning, the point is that, in and of itself, the bill alone would not resolve the committee's concern. By way of recommendation, perhaps the minister could be asked for his views as to how the bill is intended to respond to the committee and whether it's contemplated that there will be additional action following the passage of the bill that will, in fact, resolve the issue.
Senator Unger: I agree with what counsel just said. It is clear that Bill C-18 doesn't resolve these issues. They're separate and apart. I would agree with counsel's recommendation that the minister be asked for his views on this matter and what further action might be taken.
Senator Hervieux-Payette: If we have some communication with the minister's adviser or people working on this who said they were tabling Bill C-18 to meet our concerns, then there is a misunderstanding somewhere. If they have not taken our comments into consideration, then we have to send a different letter.
I agree with you, Senator Unger. We have one chance not just in a lifetime but in the next 10 years to have changes made, so they should be made now. If the bill is at first reading, then it's not complicated to include our proposal.
Even Senator Runciman agrees with me. It's important that we know. Maybe counsel could tell us if these people were thinking that they were so smart that they were just replying and complying with our request or not.
Mr. Bernhardt: I really don't know, senator. If the committee chooses to write to the minister, I can see two positive ways that a response could come back. One could be, "No, you've missed something and here is how it would address the concern." That is fine. The other answer could be, "No, in and of itself the bill doesn't resolve it, but it gives the government the tools to change the regulations to resolve the issues. In a sense, this is a step in the process." I'm assuming the committee would be happy with either one of those answers; and hopefully one of those two will be the response received.
Senator Unger: Bill C-18 has passed second reading in the house.
The Joint Chair (Senator Runciman): It will go to committee.
Mr. Albas: It's at second reading. I just want that on the record.
The Joint Chair (Senator Runciman): Are we in agreement with respect to a letter to the minister to find out how he determines that this addresses the committee's concerns going forward?
Hon. Members: Agreed.
SOR/2005-370 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2005-3 (TEXTILES AND APPAREL)
The Joint Chair (Senator Runciman): Next is Item 5 under the heading "Reply Unsatisfactory." We are advised that the reply is now satisfactory for this order amending the Schedule to the Customs Tariff. This is part of Proposals for the Miscellaneous Statute Law Act. Is that correct?
Ms. Borkowski-Parent: Yes it is.
The Joint Chair (Senator Runciman): Should we close the file or monitor?
Ms. Borkowski-Parent: Monitor?
The Joint Chair (Senator Runciman): Is everyone is in agreement.
Hon. Members: Agreed.
SOR/2013-28 — REGULATIONS AMENDING THE RAILWAY INTERSWITCHING REGULATIONS
SOR/2013-207 — REGULATIONS AMENDING THE RAILWAY INTERSWITCHING REGULATIONS
(For text of documents, see Appendix A, p. 9A:1.)
The Joint Chair (Senator Runciman): Item 6 under "Reply Unsatisfactory (?)" deals with two sets of amendments. The first set was replaced because they weren't made properly. This gives rise to a question of whether the interswitching rates charged by rail companies in the interim period were the pre-existing rates set out in the improperly made amendments.
Mr. Bernhardt: That's correct, Mr. Chair. There is now an order properly in place. The difficulty with the first order is that although the interswitching regulations are made by the Canadian Transportation Agency, they have to be approved by the Governor-in-Council. On the first try, they weren't, by all accounts, formally made by the agency before the Governor-in-Council approved them. The approval required going back through the process a second time.
The question, then, is what happened in the interim? The agency states that no interswitching rates were charged in the interim, but this is clearly not the case. The agency goes on to explain that the settlement of interswitching rates is a commercial practice among several rail carriers who make settlements with each other once a year at the end of the calendar year. Even if settlements of amounts owing between the railway companies were made only at the end of the year, those settlements have to be based on something. What they are based on is the rates charged throughout the year.
The agency seems to be confusing the charging of rates with the collection of the rates charged. Simply because no money changed hands until later or that the amounts owed to each other in the end would be netted out doesn't mean no rates were charged. It seems clear that if the amended rates were charged while they were not properly in force, this would have an impact on the amounts owed by the various railway companies to each other when the settlements were made at the end of the year.
Whether this is unintentional confusion on the agency's part or whether it's attempting to gloss over any possible consequences of its mishandling of the making of the amendments by suggesting that the effect would be minimal and that most the railway companies are aware of the situation, I'm not sure. I suggest it might be worth putting the question back to the agency a second time in the hopes of getting a more fulsome response.
The Joint Chair (Senator Runciman): Comments?
Ms. Quach: Can we also require corrective measures in the letter we send with a time frame for it to be done, given that these are just rates that need to be correctly established? I think it would still be fairly simple.
Mr. Bernhardt: There is a corrective measure in place. SOR/2013-207 was the order that properly made what purported to be made earlier so that as of December 2013, everything is on the proper footing going forward.
If there is a question for the committee, it is: What transpired from March to December when there was an improperly made order on the books and what is that effect on the railway companies? Presumably, some people paid too much or too little. Amounts were subsequently exchanged. There may or may not be questions there, but the response that no rates were charged is clearly specious.
Mr. Brown: I suggest that writing back to ask for more information would be the right course of action.
Ms. Quach: If it is vague between March and December and there were rates that were invoiced or collected, would it be enough to simply request clarification or do we also need to ask whether some companies will need to be reimbursed? Because if some have been, not swindled, but — it would be important that they be compensated.
Mr. Bernhardt: At times in the past, the committee has insisted on repayment of money and settling of accounts where money has been collected improperly. The committee made such decisions on a case-by-case basis based on the particular situation — perhaps the amounts involved and the number of people involved. There has been a suggestion here that some railway companies are aware of the situation. What railway companies are not aware of the situation? Why are they not all aware?
It's suggested that the net effect might be minimal. If it all nets out in the end regardless, then perhaps the committee would be satisfied knowing that, but that information has yet to be provided. The committee would be in a better position to decide if it wishes to push for further action once it has the full particulars.
In the impact analysis statement, the projection was that while some rates were increased and some were decreased, the overall effect was that there would be, globally, $800,000 a year less revenue for the railway companies. Whether that proved to be the case, I'm not sure.
The Vice-Chair (Mr. Bélanger): To add to Mr. Brown's suggestion, if I understood it, we need to find out which rates applied between March and December 2013. Is it the pre-March 2013 rates or the post-December rates? Once we know, that will help clarify whatever else we may need to do.
Senator Moore: Is it possible for counsel to meet with these people, this agency? We can go back and forth with letters and more information, but you say that what they say here is not correct. You can write a letter to them, but what are you going to say, that they issued a false statement? Can we not meet with them and say, "Look guys, this is where we think we are here. How do we get this resolved given the facts that we're faced with?" Is that possible?
Mr. Bernhardt: If that's the wish of the committee, that's what we will do.
Senator Moore: Would it be helpful to do that as opposed to an ongoing —
The Joint Chair (Senator Runciman): Let's get feedback from other members.
Senator Batters: With respect to Ms. Quach's question earlier about suggesting one company pay the other back sums of money, I think it would probably be an extremely rare occasion where we'd make that type of suggestion. Is that correct, counsel? We would need a lot more information before we were in a position to make that kind of demand.
Mr. Albas: I agree with where Senator Batters is coming from. I do respect that we should be getting more information. I think the CTA's response was a little too cute.
However, let's just keep this in perspective. We have a government arm's-length agency that is trying to do what it can and made a mistake in how the order went to the Governor-in-Council. We should be careful not to make the mistake of the CTA an issue because we take issue with it and not to require the companies to go through a lot of time, trouble and energy that takes them away from their other operations just to satisfy us.
There was a mistake made in an order. I don't think the response we got back was complete disclosure. I think we should ask the CTA for a firmer explanation, but we should not try to make a problem with a government agency the problem of all of these independent businesses unless we feel there is a burning public issue. We know what the source of the problem was. We know that it has been corrected. We weren't satisfied with the response of the CTA. I think it's perfectly fine to ask them for more information. But if we're going to go quite deep into this, we should make sure that the people who are impacted are the parties to the decision or to the error.
The Joint Chair (Senator Runciman): Is everyone all right with that?
Senator Hervieux-Payette: I want to make sure that I understand what is going on. For me, unless I haven't lived long enough in this country, we don't have 500 railway companies; we have 2. They have to report once a year about these interconnections, and this interconnection is supposed to be accommodating their clients, all of the companies that want their goods delivered on time. For that reason, sometimes they have to switch some of their stuff to another company. There might be many of these accommodations from one company to another, but once they report, I don't know why you're complicating that. For me, they know how many times they did some interconnections and the only issue is which rate would apply. Is it the rate before March or the rate after December? That's the only problem I see with this. We're not intruding into how many interconnections by whom and how, just into the price that was applied. There will not be many corrections on the statements that will go from one company to another, unless I did not understand the whole issue.
Mr. Albas: On the other committee I'm on, Public Accounts, we recently did a study based on the Auditor General's report on rail safety. There are over 50 small, independent railroad companies. Again, the interswitching between March and December would be a tremendous amount of transactions. I am saying let's not get down so deep into where we are actually causing time and energy from the private sector on an area that is actually more the CTA's issue.
I think we do deserve a more complete response from them than what they have presented thus far, but I would point out that there are more than just two railway companies operating in Canada. Many of them are small, and if we start asking about how much was charged to whom and when between those dates, that would be very cumbersome for business. I don't think there would be public interest value at this time; maybe after we get a response from the CTA, but not at this point.
Senator Hervieux-Payette: But no matter how many companies, once we have determined how many transactions are supposed to be reported on a yearly basis, I will take this as a fact and not inquire into that. It's just to finalize what charges of interconnections should have taken place, which rate will apply. I don't think we have to go further on this question, so don't complicate that.
The Joint Chair (Senator Runciman): I think we're essentially on the same plane here. We're talking about a letter expressing the committee's dissatisfaction with the original response and asking for a more comprehensive explanation of what occurred.
Hon. Members: Agreed.
SOR/2006-124 — PEST CONTROL PRODUCTS REGULATIONS
(For text of documents, see Appendix B, p. 9B:1.)
The Joint Chair (Senator Runciman): Item 7 falls under the heading "Part Action Taken." The regulations establish procedures for registration of pest control products and set out requirements for the importation, labelling, use and handling of registered and unregistered pest control products.
Shawn Abel, Counsel to the Committee: Thirty matters raised by the committee have been resolved by the making of SOR/2014-24. This addressed a broad range of issues, including discrepancies between the French and English versions, provisions that were needing clarification, the removal or amendment of provisions that were redundant or useless, others that were unauthorized and yet others that fettered statutory powers. Subjective language was removed in connection with ministerial determinations made under the regulations. A time frame was added concerning a requirement to keep records. Finally, a provision was removed that imposed an unnecessary obligation that served only to test whether a registrant was interested in responding.
Three matters remain outstanding today and those are set out in detail in the note.
In connection with the first two matters, substantive responses are still outstanding to the committee's concerns, following its meeting of April 29, 2010. Both of these points concern provisions that appear to make unauthorized or unwarranted pronouncements concerning civil liability. Since 2011, the department has stated that it will respond after the completion of a regulatory review, but there is still no indication of when that might occur. As of the department's letter of September 2013, that review had not yet commenced.
The last point concerns the meaning of the term "bulk containers," which is found in one provision. The department suggests this is meant to mean the largest permitted container for the transport of a particular pest control product and that this could be anything from a portable container to a railcar. It seems a little questionable as to whether that's a correct explanation. I'm not sure that this term can be taken to mean just the largest container. For example, where a product might be transported by a railcar or a tanker truck, is it really intended that a tanker truck not be considered a bulk container?
That aside, it's unclear whether the department actually intends to provide a definition in the regulations. Therefore, if members agree, I would suggest that a further letter could be drafted, seeking a clarification on that latter point. I'm in members' hands as to how they wish to pursue the first two matters.
Mr. Anders: Since we're probably going to be writing a letter on the last point, it probably makes sense to write a letter on all three points. We're down to 10 per cent now, from 30 down to three. It seems to me that, for the first point, the term "guarantee" could probably be dropped. Anyway, as counsel says, it doesn't convey any useful information regarding the product or having an illegal substance in it. The requirement should be removed, I guess. I would suggest that, if we're going to write a letter asking for clarification on the third point, we should write a letter asking for clarification on all three.
The Joint Chair (Senator Runciman): Is there consensus?
Hon. Members: Agreed.
SOR/78-830 — WOOD BUFFALO NATIONAL PARK GAME REGULATIONS
(For text of documents, see Appendix C, p. 9C:1.)
The Vice-Chair (Mr. Bélanger): Item 8, the Wood Buffalo National Park Game Regulations. If I have understood correctly, there is some uncertainty about how long this will take because the agency needs to consult with 11 First Nations or Métis groups.
It is a matter of time, but I will ask counsel to provide us with more detail.
Mr. Abel: For the benefit of members, the department considers the regulations outdated and plans to replace them entirely. If members are satisfied with how it has been moving so far, counsel could continue to seek progress reports in the usual fashion.
Ms. Quach: Could we have a time frame for the planned consultations and get a progress report? You have already asked for the status of the situation, but could we have a time frame, too?
The Vice-Chair (Mr. Bélanger): We can ask if they have a time frame.
Ms. Quach: Yes, that is it.
Mr. Albas: Given the sensitivity of this particular file and that there are multiple parties that are agents to it, perhaps we should just monitor. The department is saying they will work with us in good faith but they have responsibilities to discharge as far as consultation, and I would hate for us to be placing pressure on an agency that is trying to work in good faith with other parties. It seems the recommendation from counsel is to monitor and bring this back as soon as an update is made.
Ms. Quach: But it would basically be to know what had been planned at the time in terms of meetings. The goal is not really to exert pressure, but just to have an idea of when they plan to meet with the various First Nations groups.
The Vice-Chair (Mr. Bélanger): Are there any objections to seeing whether they have a planned time frame?
Mr. Albas: I would go to the second page and the response from Parks Canada:
Time lines for the completion of this regulatory initiative are dependent upon the willingness and availability of eleven Aboriginal groups to participate in the required consultation process and ongoing efforts to review their input and address their concerns.
I have a number of First Nations groups in my riding and such a wide scope of affected parties may make it difficult for the department. While we can always ask, this is a very complicated file just by the amount of stakeholders.
I think counsel has made a very good suggestion that we just monitor, and he will certainly let us know as soon as something comes up.
The Vice-Chair (Mr. Bélanger): Is that all right?
Ms. Quach: Yes.
The Vice-Chair (Mr. Bélanger): Thank you. Is everyone in agreement?
We will follow up, as usual.
SOR/94-753 — INDIAN OIL AND GAS REGULATIONS, 1995
(For text of documents, see Appendix D, p. 9D:1.)
The Vice-Chair (Mr. Bélanger): Next is Item 9 under "Progress." There are 19 points of discord here, projected to be resolved by year end.
Mr. Abel: I would note for the record that since this instrument was last before the committee, the department has found it necessary to separate its overall package of amendments into groups. However, the committee's sought amendments will be included in the first group, so counsel could again follow up in the usual fashion as this deadline approaches.
Mr. Clarke: The deadline is approaching and I think we should monitor the file.
The Vice-Chair (Mr. Bélanger): Any disagreement? No?
Hon. Members: Agreed.
SOR/2002-76 — MARINE ACTIVITIES IN THE SAGUENAY-ST. LAWRENCE MARINE PARK REGULATIONS
(For text of documents, see Appendix E, p. 9E:1.)
The Vice-Chair (Mr. Bélanger): Next is Item 10, Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations.
Mr. Bernhardt: The amendments were pre-published in Part I of the Gazette last April. Thirteen months having now passed, I suppose the department could be asked when it intends to proceed to actually make these amendments.
I can advise that the promised amendment to the act is one of those eight bonus amendments — if I can call them that — found in the miscellaneous statute law amendment proposals.
Ms. Ambler: I do see the amendment listed on the Miscellaneous Statute Law Amendment Bill. I'm not sure what the deadlines are, but they have not given us any indication.
Mr. Bernhardt: That's the amendment to the act. There are also two amendments to the regulations. They were pre-published for notice and consultation a year ago April. The question would be simply to ask when they intend to finish those.
Ms. Ambler: I don't think we're in a particular rush. We might want to just keep an eye on it.
The Vice-Chair (Mr. Bélanger): Just monitor it? Is there any disagreement? No?
Hon. Members: Agreed.
SOR/2005-175 — REGULATIONS AMENDING THE REPORTING OF IMPORTED GOODS REGULATIONS
(For text of documents, see Appendix F, p. 9F:1.)
The Vice-Chair (Mr. Bélanger): Next is Item 11. This is a matter of the phrase "good character," which we find of interest.
Mr. Abel: The agency had previously agreed to make amendments addressing the committee's concerns surrounding that term. Their expected deadline for doing that had passed, but the agency now advises that they are removing the term entirely as part of a broader change to the regulations. It caused some delay, but the amendments were pre-published and the agency expects them to come into force during the winter period of 2014-15.
Again, if members agree, counsel could follow up in the usual fashion.
The Vice-Chair (Mr. Bélanger): I have a question about the summary notes. At the very end it says they are pre-published in the Canada Gazette Part I on February 15, 2014; is that correct?
Mr. Abel: Yes.
The Vice-Chair (Mr. Bélanger): Is there any disagreement?
Hon. Members: Agreed.
C.R.C. c. 1551 — TEXTILE LABELLING AND ADVERTISING REGULATIONS
(For text of documents, see Appendix G, p. 9G:1.)
The Vice-Chair (Mr. Bélanger): Item 12, the Textile Labelling and Advertising Regulations.
There are a number of issues here. There were about a dozen outstanding issues, and the responses remain unsatisfactory. We will have to ask for counsel's advice.
Mr. Bernhardt: There are a number of points where the committee has been waiting on resolution for some time. The one I would highlight, among several questions of vires, is the committee's objection to provisions permitting information to be shown on labels in only one official language. The committee has objected to that, and it is to be replaced with a bilingual labelling requirement.
Public consultations on proposed amends were completed in 2007. Since then, progress has been very slow. The note in the material sets out a brief chronology, which I think speaks for itself.
The last letter from the Competition Bureau, which is responsible for the regulations, advises that it's in preparation to move forward with the amendments. It seems that the bureau has been preparing to begin work for the past several years.
Mr. Pilon: Is there a way to ensure that this will be done by 2015? We know that the election is coming. We will not be able to follow-up before 2016. Because they have been telling us since 2011 that this will be done.
Senator Batters: First of all, the 2014-15 fiscal year would end at the end of March 2015, so we still have time before that. I suggest we write back, asking for a firm timeline, recognizing the Competition Bureau is an independent and quasi-judicial body and probably not as familiar with our committee as some of the government departments we deal with.
However, I think we should point out in the letter all the different occasions that previous promises have been made and draw to their attention that this has dragged on for some time.
The Vice-Chair (Mr. Bélanger): Comments? Is everyone in agreement?
Hon. Members: Agreed.
SOR/96-252 — SEEDS REGULATIONS, AMENDMENT
(For text of documents, see Appendix H, p. 9H:1.)
The Vice-Chair (Mr. Bélanger): Next is Item 13 under "Progress (?)," an amendment to the Seeds Regulations.
Mr. Abel: Amendments addressing the committee's concerns were pre-published in March 2013. This would be the second time amendments that would resolve this file have been pre-published, the first instance being in 2010. The agency had anticipated that these amendments would come into force in 2013. However, by January that hadn't happened, prompting counsel to seek an update.
The agency now states it expects the amendments to come into force this year. I suppose only time will tell for sure. The best course for the present seems to be to seek regular progress reports from the agency.
Mr. Anders: I guess we can call it a progress report or a firm letter, we can ask that the timelines provided be respected. It's six of one, half dozen of the other.
The Vice-Chair (Mr. Bélanger): Comments? Questions? Is everyone in agreement?
Hon. Members: Agreed.
The Vice-Chair (Mr. Bélanger): Okay.
Mr. Albas: A question for counsel: So they pre-published once, came back, and pre-published a second time?
Mr. Abel: That's correct.
Mr. Albas: I'm not a farmer, so I don't know what kind of technical amendments there are, but I would much rather have them consult and take that information into consideration before going to Gazette II.
I understand people want firm deadlines for everything, but we should also respect the fact that when the government asks to consult with people, we should also listen to them if what they're saying is correct.
SOR/2000-416 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS
SOR/2003-409 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS
(For text of documents, see Appendix I, p. 9I:1.)
The Vice-Chair (Mr. Bélanger): Item 14 concerns Regulations Amending the Health of Animals Regulations.
Mr. Abel: The situation is fairly similar to the last. Regulations were recently pre-published. They were expected to come into force in 2013. That didn't happen. The agency now expects them to come into force this year.
I would note that pre-publication of these happened after the joint chairs wrote to the minister concerning a number of files that the agency had been long delaying. Other than that, the situation is quite similar to the last file.
Mr. Albas: In the second paragraph of your summary, it says:
. . . provisions that establish a system whereby persons are required to give undertakings to comply with the Regulations. As law, Regulations are binding regardless.
I understand the point, but if there were an exemption process laid out in the enabling statute, that would then allow some discretion. There is a process laid out in the regulations; is that not correct?
Mr. Bernhardt: I'm not sure I understand the question.
Mr. Abel: I'm not sure I follow.
Mr. Albas: It says here that "a system whereby persons are required to give undertakings to comply with the Regulations."
Mr. Bernhardt: If you weren't otherwise.
Mr. Albas: Yes. So if it's written that way, an exemption could be given if it's written into the law.
Mr. Bernhardt: I suppose in theory, yes.
Mr. Albas: Okay. It was just a general question.
Mr. Bernhardt: It was simply a case of some odd, complete duplication, because people who are already required to comply with the regulations were then basically required to sign an oath that they would comply with regulations.
Mr. Albas: I'm just completing my knowledge here.
The Vice-Chair (Mr. Bélanger): Unless there is disagreement. No disagreement?
Mr. Brown, was there something else?
Mr. Brown: I think we should write a firm letter asking that they stick to timelines that were established.
The Vice-Chair (Mr. Bélanger): Any disagreement? No disagreement. Instead of monitoring, we will write a letter.
Hon. Members: Agreed.
SOR/2011-22 — TEXTILE FLAMMABILITY REGULATIONS
(For text of documents, see Appendix J, p. 9J:1.)
The Vice-Chair (Mr. Bélanger): Next is Item 15, Textile Flammability Regulations.
Mr. Abel: An amendment was promised in 2012 to address one discrepancy between the French and English versions. The date for making that amendment has been pushed back a few times, and it now stands at autumn 2014. This being only a few months away, counsel can monitor for now.
The Vice-Chair (Mr. Bélanger): Is everyone in agreement?
Hon. Members: Agreed.
Mr. Pilon: I would like some clarification. It states "this minor discrepancy." They agreed in 2012, then 2013, and now it is 2014. How can a minor discrepancy take so much time?
Mr. Abel: Delays for minor changes are not unusual, in the committee's experience. Usually it's a matter of the department deciding to roll it in with other changes they intend to make and that often leads to delays that aren't warranted based on the minor changes.
I don't know from the history of the file if that's the case on this one or if they just have not gotten around to doing it. I cannot say for sure, but it's not unusual. That is not to say that it's desirable.
The Vice-Chair (Mr. Bélanger): So we monitor until the fall?
Hon. Members: Agreed.
SOR/2010-245 — CANADIAN PRESS PENSION PLAN SOLVENCY DEFICIENCY FUNDING REGULATIONS, 2010
(For text of documents, see Appendix K, p. 9K:1.)
The Vice-Chair (Mr. Bélanger): Next on the agenda is Item 16 under "Action Promised."
Mr. Abel: The department agreed to make amendments addressing three issues identified by counsel in this case. These issues relate to drafting and to language equivalency. At this point, the expected time frame for making amendments could probably be sought from the department.
The Vice-Chair (Mr. Bélanger): Any disagreement with seeking that? No?
Hon. Members: Agreed.
SOR/2011-84 — REGULATIONS AMENDING THE ESTABLISHMENT LICENSING FEES REGULATIONS (1056)
(For text of documents, see Appendix L, p. 9L:1.)
The Vice-Chair (Mr. Bélanger): Next is Item 17, Regulations Amending the Establishment Licensing Fees Regulations.
Mr. Abel: The department in this case is agreeing to address a drafting error in the French version of subsection 11(1). The department hasn't indicated when the amendment is expected to be made, so that could be sought at this time.
The Vice-Chair (Mr. Bélanger): A letter asking when. Is that all right?
Hon. Members: Agreed.
SOR/2014-40 — REGULATIONS AMENDING THE TARIFF CLASSIFICATION ADVANCE RULINGS REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix M, p. 9M:1.)
The Vice-Chair (Mr. Bélanger): Item 18 falls under the heading "Action Taken."
Mr. Bernhardt: Under the "Action Taken" heading, basically, the amendments made by the two instruments listed in items 18 and 19 of the agenda corrected six points raised by the committee. Lastly, the 25 texts listed in the agenda have been reviewed by counsel and meet all the committee's review criteria.
The Vice-Chair (Mr. Bélanger): All right?
Hon. Members: Agreed.
SOR/2014-78 — REGULATIONS AMENDING THE 2-BUTOXYETHANOL REGULATIONS
(For text of documents, see Appendix N, p. 9N:1.)
The Vice-Chair (Mr. Bélanger): Item 19, Regulations Amending the 2-Butoxyethanol Regulations.
Mr. Bernhardt: Three amendments were made for each instrument, items 18 and 19.
The Vice-Chair (Mr. Bélanger): Is everyone in agreement?
Hon. Members: Agreed.
SI/2014-20 — CHRISTIAN LEGAULT REMISSION ORDER
SI/2014-27 — PROCLAMATION DECLARING MAY 9, 2014 AS A "NATIONAL DAY OF HONOUR" (AFGHANISTAN MISSION)
SI/2014-28 — ORDER ASSIGNING THE HONOURABLE GREG RICKFORD TO ASSIST THE MINISTER OF INDUSTRY
SI/2014-29 — ORDER ASSIGNING THE HONOURABLE ED HOLDER TO ASSIST THE MINISTER OF INDUSTRY
SI/2014-31 — ORDER FIXING APRIL 1, 2014 AS THE DAY ON WHICH SECTION 466 OF THE ACT COMES INTO FORCE
SI/2014-32 — ORDER FIXING MARCH 28, 2014 AS THE DAY ON WHICH SECTIONS 4 AND 5 OF THE ACT COME INTO FORCE
SI/2014-33 — ORDER FIXING APRIL 1, 2014 AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE
SOR12006-117 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CAPITAL COST ALLOWANCE — INTRODUCTION OF CLASSES 43.2, 47, 48 AND 49)
SOR/2013-201 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
SOR/2013-223 — ORDER 2013-112-10-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2013-228 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (EXTENSION OF MOST-FAVOURED-NATION TARIFF TO SOUTH SUDAN)
SOR/2013-229 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (EXTENSION OF GENERAL PREFERENTIAL TARIFF TO SOUTH SUDAN)
SOR/2013-251 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2014-3 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER
SOR/2014-21 — ORDER 2013-87-12-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2014-22 — ORDER 2014-66-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2014-30 — ORDER 2014-87-01-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2014-31 — ORDER 2014-87-01-02 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2014-43 — ORDER 2014-87-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2014-57 — ORDER AMENDING CERTAIN ORDERS MADE UNDER THE FINANCIAL ADMINISTRATION ACT
SOR/2014-64 — ORDER AMENDING SCHEDULE 2 TO THE FIRST NATIONS OIL AND GAS AND MONEYS MANAGEMENT ACT
SOR/2014-66 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT (OSHAWA PORT AUTHORITY AND VANCOUVER FRASER PORT AUTHORITY)
SOR/2014-67 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT (OSHAWA PORT AUTHORITY AND VANCOUVER FRASER PORT AUTHORITY)
SOR/2014-72 — REGULATIONS AMENDING THE SCHEDULE TO THE NAVIGATION PROTECTION ACT
SOR/2014-74 — REGULATIONS AMENDING THE VETERANS BURIAL REGULATIONS, 2005
The Vice-Chair (Mr. Bélanger): Lastly, "Statutory Instruments without Comment."
Mr. Bernhardt: Twenty-five.
The Vice-Chair (Mr. Bélanger): If there are no other questions or comments, the meeting is adjourned.
(The committee adjourned.)