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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 10 - Evidence - June 12, 2014

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OTTAWA, Thursday, June 12, 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.

[English]

CANADIAN AVIATION REGULATIONS

The Joint Chair (Senator Runciman): Item No. 1 is a Special Agenda Item. It involves 183 points and 18 instruments. Some 44 concerns are expected to be resolved in a package of miscellaneous amendments. Responses to another 24 points are to be provided by the end of the month. However, there have been unsatisfactory answers from the department on some of the points.

Counsel?

[Translation]

Evelyne Borkowski-Parent, Counsel: At the meeting of February 6, the committee asked its counsel to meet with Transport Canada representatives to obtain a mid-year update on the progress on some 18 files related to the Canadian Aviation Regulations.

On May 21 of this year, Mr. Bernhardt and I met with Transport Canada officials. The department provided us with a table you will find among the documents prepared for this morning's meeting. The table contains status updates for each of those files.

Counsel also had an opportunity to discuss three letters received since the last meeting held in January. Some of the responses provided in those letters were unsatisfactory, and counsel were able to clarify the committee's concerns on a number of points. The exchange was productive, but since we did not have enough time to discuss all the unsatisfactory points, another meeting has been scheduled for next week in order to conclude the discussion, the scope of which will be presented to the committee in detail during the individual review of each of those files. Time will tell whether this method will yield better results.

However, I want to take this opportunity to raise the following concern. The file's scope and complexity have somewhat dictated this particular approach, which is indeed more upstream, but it also requires more time and resources. At the end of the day, we have to make sure that this method does not eventually supplant the department's drafting responsibility.

[English]

Ms. Ambler: I thank counsel for the time that she put in on these many points. I appreciate her comment about not allowing this to become a substitute for drafting.

I would say ``best wishes'' for her meeting next week. To continue along that path is obviously good, so I would suggest letting us know in the fall how the meeting went and giving us an update then.

Senator Hervieux-Payette: Will we have a report on next week's meeting just in September?

Peter Bernhardt, General Counsel to the Committee: That will be the next meeting.

Senator Hervieux-Payette: We can take more time then. I know you didn't have enough time, but can you complete the task at the next meeting?

Mr. Bernhardt: Hopefully.

Senator Hervieux-Payette: It's worth asking.

Mr. Bernhardt: It's hard to say because on some of these points it's a bit like the layers of an onion. You think you have only one issue, but when you peel it away you find, lo and behold, that there's something unforeseen underneath and it keeps going and going. I think we have a full morning, more or less, set aside to plow through the rest of these.

Senator Hervieux-Payette: If everybody is not on holiday this summer, may I suggest we do a second or third meeting to pursue this until your report in September? I don't think that you will finish the task in three hours.

In terms of methodology, it's the right approach: like teaching people how to do their jobs. As far as I'm concerned, we have to be tolerant but not stupid.

Mr. Bernhardt: Absolutely.

[Translation]

Ms. Quach: I support what senator Hervieux-Payette said. If I have understood correctly, you said that the method has become a bit more time-consuming and expensive — or, at least, it involves fewer resources. Have they explained why the method has changed?

Ms. Borkowski-Parent: What has changed is the committee's approach to dealing with this file. It is becoming involved in the earlier stages of the process.

Ms. Quach: So the approach is more effective.

Ms. Borkowski-Parent: Time will tell whether the approach is more effective. I cannot comment on that at this stage. We will try a new approach in addressing this file. Desperate times call for desperate measures. Time will tell what will come of this.

[English]

The Joint Chair (Senator Runciman): In terms of this new path, which is more labour-intensive, don't hesitate to remind the committee if we're encouraging you to go down that path again. Remind us of your concerns related to what that involves.

We will follow up on that when we return, following Ms. Ambler's suggestion and Senator Hervieux-Payette's suggestion with respect to more meetings being required during the summer to pursue them.

Ms. Ambler: Rather than say at this time that the meeting on this should be the first one after the break, I suggest, if you feel that significant progress has been made, it could be the second or third meeting. This is a lovely coloured chart, but I wouldn't want to see this in the package too many times.

SOR/2011-281 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1618 — FOOD ADDITIVE)

(For text of documents, see Appendix A, p. 10A:1.)

The Joint Chair (Senator Runciman): Next is Item 2 under the heading ``Reply Unsatisfactory.'' These amendments permit the use of the food additive caramel in chocolate-flavoured cream cheese spread to a maximum level of 1.5 per cent. The use of caramel was previously permitted by an interim marketing authorization, but that expired on February 14, 2011, meaning the use of that product was illegal. Health Canada says the industry had a responsibility to abide by that prohibition. Health Canada has a duty to uphold the law. However, there was no risk to health, and this would be considered a low enforcement priority.

Can you expand upon that, counsel?

Mr. Bernhardt: This particular incident seems to be an example of a broader approach that Health Canada took under the old regime dealing with interim marketing authorizations, whereby if one of these authorizations expired the practice was simply to ignore the fact that the use was now prohibited. Health Canada knew that eventually the regulations would be amended to allow this, so they didn't worry about the gap in the interim.

Of course now, because of recent amendments to the Food and Drugs Act, the system for marketing authorizations has changed somewhat. The minister now has the authority to issue a marketing authorization of indefinite duration. It is done through exempting uses or manufacturers from requirements in the Food and Drugs Act and the regulations, and those can be subject to any conditions the minister wishes to impose.

This can also be done through incorporating departmental documents as amended from time to time, so in fact the marketing authorizations can take the place of the regulations.

As for what happened before, in the April 9 letter the department reports that it has transitioned into the new framework 35 of 36 marketing authorizations for food additives that were awaiting regulatory amendments. That includes the one that the committee was dealing with here — the caramel in chocolate-flavoured cream cheese.

There is, however, one other interim marketing authorization that has yet to be transitioned. It expired on September 11, 2012. Since that time, the use of this particular food additive — at least certain uses of it — has been prohibited. As you indicated, Mr. Chair, the department — and I think rather disingenuously — states that the industry is responsible for abiding by this prohibition, that the department has a duty to enforce the regulations but that enforcing this particular provision is not a priority.

I should add that the department refers to several cases to do with whether there's a private law duty of care owed to people who may be injured by non-application of a regulation and whether the public officer who is under duty to enforce the law can be compelled by court order to do so. The issue for the committee is not whether a court could compel enforcement or whether a lawsuit may arise; it is simply, for the committee, the question of the propriety of the department's past policy.

I think there's also a difference between exercising discretion and setting priorities and choosing whether to prosecute a particular contravention or not, and simply making a decision to ignore prohibitions on the basis that eventually they will cease to be prohibitions.

As to where that leads the committee, I'm in the hands of members as to how they wish to proceed.

The Joint Chair (Senator Runciman): Does anyone have a comment?

Senator Moore: It looks like the process is going to be completed in the fall. Are you confident that, with all of your other interventions, this will happen now and prove satisfactory?

Mr. Bernhardt: In all likelihood. The committee will be left with whether it wishes to make a comment on this practice that was followed in the past or whether it simply wishes to take the view that that's water under the bridge, that the new regime is there, that the transition has been completed and that the situation will no longer arise.

Senator Moore: It may be completed in the fall. To tighten it up a bit, is it appropriate to ask for a more definite time frame? Is this something that you would see reporting back to us when we come back, or will we be sitting here in December waiting for it? I would like to know that the fall means a definite time period in which we can expect appropriate action.

Mr. Bernhardt: If I had to say, I would suspect that there's a good likelihood of that timeline being met here. Health Canada tends not to be one of the departments that comes up with a lot of postponements. As well, this is a transition to a new regime that is now in place, and they simply have to complete that. So I would like to think the committee can have some confidence that there's likely to be a resolution sometime before the end of this year.

Senator Moore: So we want to just monitor the file and report back?

Mr. Bernhardt: We can certainly do that.

The other question is whether the committee wishes to go on record vis-à-vis this past practice, which, as I say, was simply to ignore the fact that these things had expired and that prohibition was, therefore, coming back into force.

Senator Moore: Have we not done that up to now in those certain words? If we haven't, I think we should in writing.

Mr. Bernhardt: I think the point has been made to the department through counsel. I suppose the only other thing might be if the committee wished to bring that to the minister's attention and just indicate that the committee had some disquiet about what had happened in the past and hopes that has been taken to heart.

As far as what's been done in the past, I don't think there's any actual remedial action to be taken.

The Joint Chair (Senator Runciman): Are you suggesting monitoring, Senator Moore?

Senator Moore: I think just monitor the file, chair, and let us know in the fall. Maybe you can make a call when we get back and see how they're doing with it. Maybe you will be able to report to us at one of our earlier meetings in the fall.

The Joint Chair (Senator Runciman): All right, Ms. Quach? You are fine with that?

Ms. Quach: Yes.

The Joint Chair (Senator Runciman): We're all in agreement with that approach.

SOR/2013-64 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

(For text of documents, see Appendix B, p. 10B:1.)

The Joint Chair (Senator Runciman): Item 3 under ``Reply Unsatisfactory'' deals with section 79 of the EI regulations, which provide that the Canada Employment Insurance Commission must make a decision ``without delay'' in cases where requests for reconsideration of a decision have been made. Counsel views that term as inherently vague and legally meaningless and believes it should be deleted. The department disagrees.

Counsel?

[Translation]

Ms. Borkowski-Parent: The committee submitted to the department that, by using the expression ``without delay,'' section 79 does not establish a legal rule. Moreover, the provision's usefulness is questionable. In fact, this expression is vague, and judicial powers must be used to clarify its scope.

The department is of the opinion that the provision informs the claimant that their claim will be processed within a reasonable time under the circumstances. This was already one of the commission's obligations, so it is difficult to see what section 79 adds. Moreover, it was never deemed appropriate to include that type of provision in the previous versions of the regulations.

The committee used doctrinal publications to explain why using such an expression is a failure in legislative drafting. Following the meeting of December 5, 2013, the committee asked the department to reconsider its position, but as indicated in the letter in your bundle of documents, our attempt was unsuccessful. The department made much of the fact that this expression and other terms such as ``as soon as possible'' and ``immediately'' are used in the regulations and the enabling legislation.

I have a few things to say about those unconvincing arguments. As far as the regulations go, the department identified about 10 occurrences of similar expressions. In some cases, the committee has not yet looked into the wording of those provisions, so there is no guarantee that the committee will not eventually object to them. Moreover, three of the four occurrences of the term ``immediately'' are part of the passage, ``on the working day that immediately precedes that holiday.''

The term ``immediately'' does not create any ambiguity in this particular passage. In the French version, the term ``immediately'' was omitted altogether.

Regarding the act, two of the three identified provisions provide for the immediate obligation to pay or return an amount to Her Majesty. Those provisions create a positive obligation to immediately return an amount, and that is not the goal of section 79.

The third case has to do with parliamentary language. The term is used in subsection 153(6), which stipulates that the Speaker of the House of Commons shall, without delay, put every question necessary for the disposition of the motion.

This is nothing more than an adaptation of the terminology used in the Standing Orders of the House of Commons, and this type of term does not generally constitute a precedent that would apply in modern legislative drafting.

In any case, bad precedent is just that, regardless of the number of times it has been used. This rudimentary terminological analysis by the department shows the pitfalls of applying quantitative analysis to legislative drafting. After all, word meaning must be interpreted according to the context.

Ultimately, the department appears to be misinterpreting the committee's argument. As explained in the note on this file, there are some circumstances where the use of an inherently vague expression such as ``without delay'' is justified. In this case, the vagueness of the term combined with the provision's futility provides a common sense explanation.

Based on recent federal court jurisprudence — mainly in the Yadav ruling — when the decision-maker causes an unreasonable delay in rendering a judgment, the principles of procedural fairness may be violated. If that is the case, what does section 79 add?

Since the department seems unwilling to listen to the committee's arguments, perhaps it would be time to inform the minister of that fact.

Senator Hervieux-Payette: I would like you to clarify something. If the act contains the term ``without delay,'' could the meaning of this term be explained in the regulations? Since the act provides generalized guidance, legislators could state ``within 3 days,'' ``within 10 days,'' ``within 15 days'' or ``on the same day'' when drafting the regulations. Do the regulations need to reproduce any problems that arise in the act?

I am wondering whether the act contains a legal issue to begin with when it comes to time or momentum. Obviously, the same error is reproduced in the regulations.

Ms. Borkowski-Parent: The act itself does not set any timeframes for the commission's decision. That is not covered in the act. The other occurrences of the expression ``without delay'' have to do with the return or payment without delay of an amount to Her Majesty, or the putting of questions without delay by the Speaker of the House of Commons. So this issue does not stem from the act.

Senator Hervieux-Payette: So, there is no point to this?

Ms. Borkowski-Parent: Yes.

Senator Hervieux-Payette: That is all. It is not more difficult to remove something than to add something else.

Ms. Borkowski-Parent: Actually, the provision itself does not establish a legal rule. It provides advice.

Senator Hervieux-Payette: Could this hurt employment insurance recipients?

Ms. Borkowski-Parent: Not really. As I was saying, according to the jurisprudence, if the decision-maker delays their ruling, the principles of procedural fairness are violated. So this aspect is already covered in jurisprudence and administrative law.

Senator Hervieux-Payette: I would have no problem with writing to the minister to inform him that his regulations are not needed, and that he should do away with them. I do not know what my colleagues think about that. I think it is somewhat ridiculous to legislate on a matter of no consequence that ultimately confuses the issue.

[English]

Mr. Albas: I'm certainly all for having it properly drafted both in the legislative sense and for regulations as well. At first I thought this was some insidious plot to bring about iambic pentameter in all of our regulations.

Senator Batters: You just wanted to say that.

Mr. Albas: After consideration, I would agree with the senator we should write to the minister responsible and say that we do feel that the term ``without delay'' in section 79 is superfluous.

The other suggestion I would make, Mr. Chair, is that we also cc the Justice Department because ultimately good drafting, if we make them aware of it, will end up further down the road at the end of the day.

The Joint Chair (Senator Runciman): You are in agreement with that?

Hon. Members: Agreed.

SOR/2013-252 — REGULATIONS AMENDING THE CANADIAN HATCHING EGG PRODUCERS QUOTA REGULATIONS

(For text of documents, see Appendix C, p. 10C:1.)

The Joint Chair (Senator Runciman): Next is Item 3 under ``Reply Unsatisfactory.'' It involves a subsection stating that:

Unless otherwise provided, the definitions in section 1 of the schedule to the Canadian Hatching Egg Producers Proclamation apply in these Regulations.

Counsel's view is that this is an unnecessary provision and the egg producers disagree.

Mr. Bernhardt: In part, these amendments were intended to address a concern of the committee by deleting a number of definitions from the regulations. The reason for that deletion was those terms are already defined in the proclamation pursuant to which the regulations are made. It was therefore unnecessary to repeat them in the regulations because under the Interpretation Act those terms would have the same meaning in any event.

Rather bizarrely, having taken the definitions out, they then included a provision in the regulations saying that the definitions in the proclamation apply to the regulations. Well, if it was unnecessary to have the regulations define these terms because the proclamation already applied, it is equally unnecessary to say that in the regulation. It is the same reason for taking out the definitions in the first place.

However, the producers now express the view that the definitions in the proclamation did not apply to the regulations, even though they have taken them out for precisely that reason, because the proclamation does not confer regulation-making powers. They argue that it is pursuant to the Farm Products Agencies Act that the producers are authorized to make the regulations and that the proclamation, in their words, simply triggers and qualifies the powers conferred by the act.

As explained in a note in the materials, we have concluded there's little merit to this assertion. For one thing, on its face, the executive portion of these amending regulations itself states that these amendments are made pursuant to paragraph 22(1)(f) of the Farm Products Agencies Act and subsection 5(1) of the schedule to the Canadian Hatching Egg Producers Proclamation. At least whoever drafted these amendments certainly thought that the proclamation was enabling legislation because they stated that in the opening.

Paragraph 22(1)(f) provides that a marketing agency that has been empowered to implement a marketing plan can make orders and regulations to implement that plan, subject to the proclamation by which it is established.

The act also states that the proclamation that establishes an agency will designate any of the powers set out in the act that are not vested in the agency. So whatever regulation-making powers an agency has will be determined, in fact, by the Governor-in-Council when issuing the proclamation that establishes the agency.

Whether you characterize this as fixing the power of the agency to make regulations or as triggering and qualifying the power of the agency to make regulations, it comes to the same thing. I don't think there's any doubt that the proclamation is, in fact, enabling legislation.

Authority for the regulations is derived both from the act and from the proclamation. If there's no proclamation, there's no authority to make the regulations.

It is obvious, then, that the regulations are made pursuant to the proclamation and, therefore, it is unnecessary to state, as they have done in 2(2), that the definitions in the proclamation apply.

There's also an argument here that this statement in the regulations is necessary to avoid confusion, because the proclamation and the act have different definitions for the terms ``marketing'' and ``agency.''

The act defines ``agency'' generally to mean any marketing agency. The proclamation then defines ``agency'' to mean the Canadian Hatching Egg Producers, because that's the particular agency the proclamation is dealing with.

I don't think there will be any confusion for someone reading the regulations when the regulations refer to ``the agency'' in terms of whether they're talking about the egg producers or any marketing agency whatsoever. I doubt very much anyone is going to think that the Canadian Hatching Egg Producers Quota Regulations referencing ``the agency'' would mean the Prince Edward Island Potato Board. Similarly, with the definition of ``marketing,'' the act has a general definition. Then there's a specific definition in the proclamation as it applies to ``broiler hatching eggs and chicks.''

I think also that provision itself could be a source of confusion because it states that the definitions in the proclamation apply ``unless otherwise provided.'' So now the reader is left to wonder what ``unless otherwise provided'' means. Is it otherwise provided somewhere? If it is otherwise provided somewhere, where is it otherwise provided?

To make a long story short, we would suggest that the same arguments that led to taking the definitions out of the regulations in the first place also apply to restating that those definitions in the proclamation apply in the regulations.

Mr. Breitkreuz: I want to thank our analysts for the work they do. I can't believe how convoluted some of these things can become. What's happening here is almost humorous.

Just like the last issue we dealt with, it seems that it's almost super-foolish to have all of these things repeated. As I was going through this, I was reminded of a character in Alice in Wonderland who says, ``The words will mean what I say they mean,'' and we're almost faced with that situation here.

We have to go with the analysis as has been provided by our analysts. They have done a very good job. We have to stick to what we decided in the first place; I think the analysis we have is correct.

We should write back and stress that our original argument still applies. We have to follow best practices in drafting, and we want to see these changes made. That's what we need to do.

The Joint Chair (Senator Runciman): Perhaps stress that we think their position is ``super-foolish.''

Mr. Breitkreuz: I like that.

The Joint Chair (Senator Runciman): Anything else?

Senator Hervieux-Payette: Sometimes people don't do their homework and they don't regulate properly. In this case, they regulate too much. That's rare. But I agree with you.

The Joint Chair (Senator Runciman): Are we in agreement with that approach?

Hon. Members: Agreed.

SOR/2008-185 — AMERICAN CONSUMPTION OF SOFTWOOD LUMBER PRODUCTS REGULATIONS

(For text of documents, see Appendix D, p. 10D:1.)

The Joint Chair (Senator Runciman): Item 6 is under the heading ``Reply Unsatisfactory (?).'' There is a discrepancy between the regulations and the Softwood Lumber Agreement. The department says it will correct it only if the agreement is extended and other amendments are necessary. It has also said it cannot clarify certain references in the regulations.

Cynthia Kirkby, Counsel to the Committee: At issue, as you just said, Mr. Chair, is the meaning of certain expressions found in the regulations. First, the regulations indicate that the expressions ''American softwood lumber exports'' and ``American softwood lumber imports from countries other than Canada'' have the same meaning as in an annex to the Softwood Lumber Agreement. That annex, however, refers to ``U.S. softwood'' rather than ``American softwood.''

The department recognizes this discrepancy but advises that the current agreement will expire next year, and so corrections will only be made to the regulations if other amendments are required as a result of the new agreement, which is currently being negotiated.

The second issue relates to the meaning of expressions, including ``Southern region'' and ``Northern region,'' which are used in the regulations and in the annex to the agreement but are not defined. The department was asked who determines the regions and how, but it did not respond on this point. Rather, the department indicated that the regulations must use the language of the agreement and that to define these expressions would go beyond the terms agreed upon between the parties.

This seems a little dubious since the parties must have had a meaning in mind in reaching an agreement. Making that meaning clear to readers would not seem to go beyond its terms, particularly if these expressions are commonly understood in the industry, as the department suggests.

The department has indicated that if these terms are defined in subsequent agreements, then the regulations will be clarified as well.

Mr. Anders: I found this hilarious. My father worked for Canadian National Railway and was heavily involved with the Softwood Lumber Agreement in terms of him being in charge of lumber products. What's hilarious is that the west region is so obviously defined because it runs from Osoyoos down to Baja in California. There are no trees in that region. Everything west of that is obviously the western region. There's no softwood lumber between Osoyoos and Baja. It just doesn't exist; there are tumbleweeds. North-south is the Mason-Dixon line. Nobody would even bother to think of actually writing that in because it is really obvious.

It looks like they're going to do the rewrite as of the expiration on October 12, so I would offer that we just write back.

Senator Hervieux-Payette: We just change ``U.S.'' for ``American'' and everybody will be happy? Because we use the term that is in the agreement instead of having some imaginative person change the word for ``U.S.''

Mr. Bernhardt: No, it's merely a drafting slip-up.

Senator Hervieux-Payette: Okay.

Mr. Bernhardt: It's just a bit odd to say ``this term means what it means in the agreement,'' and you look and it is actually a slightly different term. I don't think anyone is going to be confused between the use of ``U.S.'' and the use of ``American.''

However, if you are saying something has the same meaning as the term in the agreement, one should actually refer to the term that's in the agreement.

Senator Hervieux-Payette: Okay. It's going to be reviewed, so let's correct it now.

[Translation]

Mr. Pilon: I just wanted to know whether we could ensure that, in case of a new agreement, something is done, or whether we have to wait for the agreement to be drafted before checking whether it has been done.

[English]

Mr. Bernhardt: I suppose the committee can ask for — I was going to say ``an assurance'' — that those changes will be in the new agreement, but that's somewhat contingent on how the negotiations in the agreement go. I'm not sure one party to an agreement can make a unilateral promise that, yes, this will be in the new agreement. Given what they are, one suspects it can be easily done.

Mr. Albas: With the language that has been presented here, yes, I understand mix-ups have happened, but I don't see any fallout from the lack of proper usage with the agreement. In essence, agreements just enshrine on paper what has been agreed to at the bargaining table. From my perspective at least, my riding is quite dependent on exports, and I haven't seen an issue.

I respect that some people might want to have everything laid out perfectly. I suggest we just monitor, as Mr. Anders has suggested, and see what happens when the new one comes in. I think we have given some good input so that at least we know the next agreement has received that.

The Joint Chair (Senator Runciman): I think Mr. Anders was suggesting we write back. You are suggesting we monitor. Is there a conflict there?

Mr. Albas: Pardon me. I should say that we write back for the information. There's going to be a new agreement and we just monitor and see what is in the new agreement that comes back. I think it is perfectly fine to give them feedback. I apologize for the contradiction.

The Joint Chair (Senator Runciman): Are we all in agreement with that approach.

Hon. Members: Agreed.

SOR/2008-120 — VESSEL OPERATION RESTRICTION REGULATIONS

SOR/2010-34 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS

SOR/2010-226 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS

(For text of documents, see Appendix E, p. 10E:1.)

The Joint Chair (Senator Runciman): Under ``Part Action Promised,'' Item 6 concerns three SORs. Thirty points were raised initially, and the department agreed to amend 21 of those, with satisfactory explanations provided for another four. They have agreed to amend three more along with a new point that was raised in prepublication as promised by mid-2015. Counsel believes clarifications are required on two of the remaining matters.

Ms. Kirkby: Yes, that's correct. Of the two remaining issues, the first relates to point 2 of the initial correspondence, which is section 4 of the regulations: the question of whether local authorities are required to hold public consultations when requesting certain restrictions. The regulations state that the local authority must provide, amongst other things, information regarding the public consultations held. It was put to the department that this suggests that if consultations are held, then this information must be provided, but it does not require that public consultations be held in all instances.

The department initially responded that it did not see the need to create a consultation requirement in the regulations but also indicated that if appropriate consultations were not held, then the request for restrictions would be returned. This seems to suggest that consultations are required in practice but not in law, so it was suggested to the department that the regulations should be clarified.

The department again disagreed, stating:

. . . it is clear that public consultations must be held and the details of the consultations, . . . be included in the report submitted with the request for the restriction.

The department could be asked to identify what provision it is referring to when it says it is clear that public consultations must be held since, as it previously acknowledged, the provision in question does not contain such a requirement.

The second outstanding issue relates to point 8 of the initial correspondence, paragraph 14(2)(b) of the regulations, which indicates that the minister can issue a permit in relation to False Creek in the city of Vancouver only if, amongst other things, ``the vessel is seaworthy.'' The department was initially asked what criteria are applied to determine the seaworthiness of the vessel and how this evaluation is conducted, including whether there is an inspection.

In its initial response, the department simply replied that an inspection may be conducted under the Canada Shipping Act, 2001, where necessary. The requirement of seaworthiness is a precondition in all instances, however, and indicating that an inspection will be conducted only where necessary does not seem to recognize that fact.

The department's subsequent correspondence may hint at a simple miscommunication. It explains that vessel inspections are conducted as necessary since the vessel may recently have been inspected for other reasons, and so a further inspection would be unnecessary. This could suggest that the department means that an inspection is required to determine seaworthiness in all instances, whether this refers to an inspection only for the purpose of issuing the permit or to a recent inspection carried out for another purpose that will be sufficient for the minister to determine if the vessel is seaworthy.

If the committee agrees, the department could be asked to clarify this explanation.

Senator Tannas: There is good progress here, obviously. As you suggest, we should write back to seek clarification on the two items and perhaps an update on their mid-2015 target, and then bring it back to committee.

The Joint Chair (Senator Runciman): Are there additional comments? Is it agreed?

Hon. Members: Agreed.

SOR/2006-50 — CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS

(For text of documents, see Appendix F, p. 10F:1.)

The Joint Chair (Senator Runciman): Next is Item 7 under ``Part Action Taken.'' The committee sought two amendments, which have been made. Amendments to two other provisions are under consultation. No time line has been provided, and there's no commitment to amend another section in the French version of the regulations.

Mr. Bernhardt: The one point that's still unresolved concerns the committee's questioning of the use of the word ``tout'' in the French version of certain provisions. The English version requires a person to submit information and documents concerning certain matters. The French version requires a submission of all or any such information and documents using the word ``tout'' as in ``tout document'' or ``tout renseignement.'' Essentially the committee has concluded that when used as an indefinite adjective, ``tout'' means ``every'' or ``all'' as opposed to ``some.'' I suppose the same potential confusion could arise in English with the use of the word ``any.'' Does it mean ``every'' or ``any one?''

The department has not accepted the committee's view, although now it indicates that should these provisions be reopened, it will ensure that the most current drafting standards will be applied. That's obviously not a very firm commitment. At this point there seems to be little new that could be said by way of argument.

While the issue could be relevant in future cases, I suppose the ambiguity may not cause much difficulty in practice. Apparently what's intended is that the information required to be submitted be sufficient to decide the particular application. Presumably if the information initially submitted is insufficient, the minister will just ask for more information. It falls to the committee to determine how strongly it feels about this point and whether it wishes to pursue the matter.

Senator Nancy Ruth: I don't know how strongly the committee feels about this, but the sentence about ``should these provisions be reopened'' is really a lot of cow dung. I just think it is nonsense. I suggest we write back and ask them to clarify it. If they want to play games with us, we will play.

Senator Hervieux-Payette: No, we are serious.

Senator Nancy Ruth: It's rubbish.

The Joint Chair (Senator Runciman): The senator suggests we write back asking for clarification. Is it agreed?

Hon. Members: Agreed.

SI/2013-125 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (TS'UDE NILINE TU'EYETA [RAMPARTS RIVER AND WETLANDS]) ORDER

(For text of documents, see Appendix G, p. 10G:1.)

The Joint Chair (Senator Runciman): Moving on to ``Reply Satisfactory (?),'' Item 8 withdraws from disposal certain tracts of territorial lands in the Northwest Territories for a period of two years beginning in November 2013. Two minor issues have been raised with respect to an English title in one of the French provisions, and a discrepancy between the two versions where the English version refers to the minister and the French version refers to the department. The department agrees with the points raised but is not prepared to make those amendments unless others are required or the order is renewed.

Ms. Kirkby: That was pretty much everything I had to say; however, this type of undertaking has been considered acceptable by the committee in the past.

Mr. Clarke: I recommend monitoring the file.

The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.

SI/2013-126 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (DEHCHO REGION) ORDER

(For text of documents, see Appendix H, p. 10H:1.)

The Joint Chair (Senator Runciman): Item 9 on our agenda is identical to the previous one.

Do you have anything else on this, counsel?

Ms. Kirkby: No, this one is the same.

The Joint Chair (Senator Runciman): Is it agreed that we continue to monitor this file as well?

Hon. Members: Agreed.

[Translation]

SOR/88-58 — AIR TRANSPORTATION REGULATIONS

SOR/96-335 — AIR TRANSPORTATION REGULATIONS, AMENDMENT

(For text of documents, see Appendix I, p. 10I:1.)

The Vice-Chair (Mr. Bélanger): We are at item 10, under the heading ``Progress.'' If I understand correctly, a series of necessary amendments have been accepted, but two are missing. The progress of the file has just been confirmed. The department committed to make the changes by the end of 2014-2015, so by next March. Is that indeed what the document states?

[English]

Ms. Kirkby: Should unforeseen priorities surface that would cause delays, then the agency will advise Transport Canada of the importance of the agency proceeding with the addressing the committee's outstanding concerns on an independent basis. That was the response to the request for a commitment.

Mr. Brown: I would suggest that the committee is not satisfied with the response of the President of the Canadian Transportation Agency and that we instruct counsel to meet with officials.

The Vice-Chair (Mr. Bélanger): Is there disagreement? Agreed?

Hon. Members: Agreed.

SOR/94-118 — TIMBER REGULATIONS, 1993

(For text of documents, see Appendix J, p. 10J:1.)

The Vice-Chair (Mr. Bélanger): Item 11 concerns the Timber Regulations. Eight amendments promised for 2013 are now being finalized for publication. That is, I guess, the progress noted.

[Translation]

Counsel?

Mr. Bernhardt: If the amendments have not been published by the end of the summer, perhaps we could write to the department to request a progress update.

The Vice-Chair (Mr. Bélanger): Okay. So if they have not been published by September, we will write to the department. Is that okay? Ms. Ambler?

[English]

Ms. Ambler: I was just going to say I think that's a great idea. Please keep an eye on it, and write back in the fall.

[Translation]

The Vice-Chair (Mr. Bélanger): Does everyone agree?

Hon. Members: Agreed.

SOR/2007-76 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1158 — FOOD ADDITIVES)

(For text of documents, see Appendix K, p. 10K:1.)

The Vice-Chair (Mr. Bélanger): We are at item 12, which has to do with distinguishing among the terms ``déchiqueter,'' ``hacher'' and ``hacher finement.'' Perhaps counsel could elaborate on this.

[English]

Ms. Kirkby: The department had agreed to address the inconsistencies to explain what the differences are. Since then, the Food and Drugs Act has been amended to permit the Minister of Health to issue marketing authorizations. These incorporate by reference much of the material contained in the tables to the regulations. As a result, some of these inconsistencies have been corrected in the lists that are incorporated by reference into the marketing authorizations. The department states that it intends to pre-publish regulations repealing the relevant tables in the fall of 2014, but in the meantime the inconsistencies in the regulations remain. Further, both the tables and the incorporated lists are binding despite discrepancies between them.

The department has also indicated that future regulatory projects will contain amendments to resolve remaining inconsistencies in the regulations, although no specific timeline is provided for those. If the committee agrees, the department could be asked for a projected timeline for these other regulatory amendments.

There is also the somewhat confusing statement from the department about not updating provisions within the food standards that are specific to food additives. Clarification with respect to this statement could also be sought.

Senator Batters: I think that we are getting a little bit outside of our committee's purview with part of this. I think we should write back encouraging the officials to fix the problem despite that.

The Vice-Chair (Mr. Bélanger): Any disagreement?

[Translation]

Ms. Quach: We could also ask that a timeline be established for the amendments concerning which we have received no response.

The Vice-Chair (Mr. Bélanger): Since your microphone was off, I will translate for you.

[English]

To request a timeline for the amendments that hadn't been responded to.

Mr. Albas: In the report, it does say that they will be moving to an administrative means. Therefore, it won't be under the committee's purview per se. I am wondering what the point of having the timeline would be. Is it a timeline to switch to the new system or on the actual problem itself?

Mr. Bernhardt: There are, in a sense, three actions to be taken. One would be to revoke the tables. There are some of these same issues in Schedule M to the regulations. Those will require amendments to the regulations. In addition, we have the new administrative documents.

Mr. Albas: We are looking for a timeline on the tables then. Okay.

The Vice-Chair (Mr. Bélanger): Is it agreed?

Hon. Members: Agreed.

SOR/2008-181 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1369 — INTERIM)

(For text of documents, see Appendix L, p. 10L:1.)

The Vice-Chair (Mr. Bélanger): Item 13 deals with the publication expected in September to repeal paragraph B.01.056 of the Food and Drug Regulations, which essentially would reflect the adoption of the amendments to the Food and Drugs Act. This concerns interim marketing authorities.

Mr. Bernhardt: That's correct. This is another loose end to be tidied up as a result of the change to how marketing authorizations are going to be done.

The committee had concluded that this particular paragraph was an unlawful attempt by the Governor-in-Council to limit the discretion of the minister to issue interim marketing authorizations. The committee had been told that this paragraph would be deleted. Now with the new regime, it turns out that the entire section no longer serves any purpose, so it will be simply deleted as a result of the final transition actions. Again, that is to be done in September.

The Vice-Chair (Mr. Bélanger): Monitoring?

Hon. Members: Agreed.

SOR/2011-197 — REGULATIONS AMENDING THE GOVERNMENT CONTRACTS REGULATIONS

(For text of documents, see Appendix M, p. 10M:1.)

The Vice-Chair (Mr. Bélanger): Next is Item 14. This was a fairly quick response from Treasury Board Secretariat to a letter we sent at the end of March. We got a response mid-April —

[Translation]

— confirming that they would fix the grammar and terminology issues, and also update a subsection of the regulations. Everything will be published in September, with an enactment probably to follow next March, if all goes well. Is this okay? Shall we monitor the situation?

Ms. Kirkby: Yes, this file has to do with record suspension. The Treasury Board also agreed with those amendments being made.

The Vice-Chair (Mr. Bélanger): That concerns the Government Contracts Regulations.

Ms. Kirkby: Yes.

The Vice-Chair (Mr. Bélanger): Okay, so we will do a follow-up.

[English]

SOR/84-432 — LICENSING AND ARBITRATION REGULATIONS

SOR/96-363 — LICENSING AND ARBITRATION REGULATIONS, AMENDMENT

(For text of documents, see Appendix N, p. 10N:1.)

The Vice-Chair (Mr. Bélanger): Moving on to Item 15 under the heading ``Progress (?),'' these two SORs concern many amendments that were promised also for the end of this year. Now they are looking at mid-2015, and this is due to regulatory streamlining.

Counsel?

Mr. Bernhardt: That's correct. In some cases amendments were promised more than 20 years ago. There have been repeated delays. The committee was then told that they would form part of this regulatory streamlining and modernization initiative, of which members heard quite a bit in the past. This follows from the enactment of the new Safe Food for Canadians Act. These particular amendments deal with distinguishing between when a licence will be cancelled and when a licence will be suspended.

The Food Inspection Agency had indicated that the amendments would be completed by 2014. At the time, this seemed a very tight time frame to complete such a large undertaking, and I expect members will not be too surprised to learn that it has now been revised to mid-2015. One suspects this may not be the final postponement.

The Vice-Chair (Mr. Bélanger): That's for publication.

Questions, comments?

[Translation]

Ms. Quach: Since we have already been waiting for 20 years and timeframes have constantly been extended, and also since this is a matter of food safety, can we ask the Minister of Agriculture or department officials to appear before us to justify the delays? Could we draft a letter to invite them to come explain this to us in committee?

[English]

Mr. Bernhardt: I think in this case the delay is simply because this is a huge project. They have now incorporated the committee's amendments on a fairly large number of regulations into this renewal initiative, and not surprisingly it is taking longer than they expected.

I believe that at one point the committee had asked the Minister of Agriculture if he would consider doing some of these amendments independently of the initiative. Of course that's something the committee could always ask again if it wishes to. The response wasn't particularly positive the first time, however.

Senator Unger: This has been going on a very long time, as you point out, counsel. I think that we should just monitor the file, write back in the fall asking if mid-2015 is still the target date that they are working toward and see what the reply is.

The Vice-Chair (Mr. Bélanger): We have a suggestion to monitor the file and see what happens by mid-2015.

[Translation]

Ms. Quach was suggesting that we bring in witnesses, right?

Ms. Quach: I feel that, if we just request monitoring, that may once again prove ineffective, and we have already been waiting for 20 years. So, unless there is another way to adopt amendments in the regulations, I do not know whether there is anything the committee can do.

[English]

Mr. Albas: One of the challenges is that this is a large file. The concerns of the committee date back, yes, quite a long time. However, as legislators, we saw fit to pass the Safe Food for Canadians Act, which is largely changing a great deal of regulations. We had two other files today on this subject. So while I can understand the members' concern about these things not being taken care of on a timely basis, we also have to look at what we, as legislators, have contributed to the issue.

By passing the Safe Food for Canadians Act, we have basically thrown in a large reform legislatively, which further complicates the regulations. While I can understand that the member would like to bring in people to talk about that, they will probably just say, ``Well, Parliament saw fit to give us a whole new set of laws and frameworks to work by, and so we are trying to modernize the regulations as per how you have directed us.''

Again, they have suggested Gazette II, which means they come into force by the middle of 2015 and, as counsel has said, that may be overly optimistic. However, given the number of changes we have proposed, I think that if we see these changes within a year, I'm satisfied.

Senator Hervieux-Payette: I do support Senator Unger to have a progress report in the fall to see where we're going. I was under the impression that from 1988 to now, some of the changes have been done. It is not as if we were starting from scratch for all that was done. So I feel comfortable that we should monitor it in a way by asking them where they are next fall, and we will see if we have to take other action. I think it would be reasonable to proceed that way.

[Translation]

The Vice-Chair (Mr. Bélanger): I think we have consensus on Senator Unger's suggestion.

[English]

We will proceed with monitoring for the fall to see if we're still on track. Agreed?

Hon. Members: Agreed.

[Translation]

SOR/91-365 — PARI-MUTUEL BETTING SUPERVISION REGULATIONS

(For text of documents, see Appendix O, p. 10O:1.)

The Vice-Chair (Mr. Bélanger): We are now at item 16. I think at issue here is a more definitive restriction in the French version of the Criminal Code. So the regulations have to be consistent. Is that indeed what is indicated in the regulations or the act?

[English]

Ms. Kirkby: The French version of the enabling power is narrower than the English version. The English version would allow subdelegation in the regulations while the French would not. The Department of Justice has indicated that they have begun work on the legislative initiative to correct this discrepancy in the Criminal Code. They have not provided a time frame or much additional detail, stating only that developmental work has begun on the future criminal law initiative that could be an appropriate place for these amendments.

Mr. Anders: I suggest that we monitor the file. Obviously it is just a difference between the French and the English interpretation. It sounds like the English is probably going to be predominant.

[Translation]

The Vice-Chair (Mr. Bélanger): Does everyone agree with us monitoring the file?

[English]

We will monitor the file.

Hon. Members: Agreed.

SOR/98-2 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/99-169 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

(For text of documents, see Appendix P, p. 10P:1.)

The Vice-Chair (Mr. Bélanger): Item 17 is similar to Item 15, if I'm not mistaken. Massive changes were required. They are under way and we're looking at mid-2015; is that correct?

Mr. Bernhardt: Yes. In fact, under the Safe Food for Canadians Act, the Fish Inspection Act, under which these regulations were made, will be repealed and replaced in its entirety. In the end, there will be a complete rewrite of the Fish Inspection Regulations. As you indicated, the latest forecast is now mid-2015.

The Vice-Chair (Mr. Bélanger): A monitoring situation?

Mr. Vellacott: I was going to say monitor unless there is some desire to write back, but it looks like a fairly mammoth job they have to do and a deadline as well.

The Vice-Chair (Mr. Bélanger): Does anybody disagree with the monitoring?

The document says that the act, although it did receive Royal Assent in November 2012, has yet to be brought into force. Is the act not being brought into force to allow regulations to be put in place?

Mr. Bernhardt: I assume that's the case. They will need to have that huge mass of regulations ready to enact immediately, so the act won't come into force until the regulations are ready.

The Vice-Chair (Mr. Bélanger): That's another argument to expedite regulation. Thank you.

Mr. Vellacott: The other one stays in place, then?

Mr. Bernhardt: Yes.

[Translation]

SOR/2006-193 — REGULATIONS AMENDING THE EGG REGULATIONS

(For text of documents, see Appendix Q, p. 10Q:1.)

The Vice-Chair (Mr. Bélanger): We are now at item 18. Here, an amendment was lacking with regard to subsection 9(3). Again, this is supposed to be done by May of next year.

Mr. Bernhardt: Once again.

[English]

The Vice-Chair (Mr. Bélanger): I expect someone will recommend that we monitor.

Senator Hervieux-Payette: Yes, we do.

[Translation]

The Vice-Chair (Mr. Bélanger): I think that everyone agrees. Correct?

Hon. Members: Yes.

[English]

C.R.C. C. 1238 — NORTHWEST TERRITORIES REINDEER REGULATIONS

(For text of documents, see Appendix R, p. 10P:1.)

The Vice-Chair (Mr. Bélanger): Next is Item 19 under the heading ``Action Taken.'' This file is 31 years old, and it has not been solved by changing of regulations but by passing a law to devolve authority, so it's case closed.

Mr. Bernhardt: That's correct. This was one of the committee's oldest files. In 2002, the one question of legality was addressed when the committee tabled a disallowance the report that was adopted. After that, the committee was told that things would be delayed because the boundaries of the reindeer reserve were uncertain. They needed a new survey, needed to revise land claims agreements and then make regulations.

Of course, this work was abandoned because of the devolution agreement and with the coming into force of the Northwest Territories Devolution Act. After 31 years, as you indicated, the file can be closed.

Mr. Breitkreuz: We have to thank counsel for the good work they have done on this. I think this is the last thing we're dealing with. We have to thank counsel for the work they do. Thirty-one years is a long time and we appreciate your persistence.

[Translation]

STATUTORY INSTRUMENTS WITHOUT COMMENT

SI/2014-36 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (THAIDENE NENE (EAST ARM OF GREAT SLAVE LAKE) NATIONAL PARK RESERVE) ORDER

SI/2014-37 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (NÁÁTS'IHCH'OH NATIONAL PARK RESERVE) ORDER

SI/2014-38 — WITHDRAWAL FROM DISPOSAL, SETTING APART AND APPROPRIATION OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (REINDEER GRAZING RESERVE) ORDER

SI/2014-40 — DONALD DOUCET REMISSION ORDER

SI/2014-41 — ORDER REPEALING ORDER IN COUNCIL P.C. 2006-62

SI/2014-42 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2014-43 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SOR/2014-9 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS

SOR/2014-41 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2014-42 — ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER

SOR/2014-46 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2014-47 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2014-76 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (HALAL FOOD)

SOR/2014-77 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SOR/2014-79 — REGULATIONS AMENDING SCHEDULE 2 TO THE CANADA CONSUMER PRODUCT SAFETY ACT (TCEP)

SOR/2014-85 — REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 2007

SOR/2014-87 — ORDER 2014-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2014-88 — CERTAIN TELEVISIONS REMISSION ORDER

SOR/2014-89 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS LAND MANAGEMENT ACT

SOR/2014-92 — ORDER AMENDING THE AUTOMATIC FIREARMS COUNTRY CONTROL LIST

The Vice-Chair (Mr. Bélanger): Altogether, there are 20 statutory instruments without comment.

[English]

If I may be so bold to ask a question, has there been a decision made by the committee at the start of this Parliament not to convene witnesses? I just want to inform the members that from 1975 to 2010, the joint committee had witnesses at 116 of its meetings, which would be two or three times a year. We haven't had any since December 2010. I want to flag that because at some point we may want to address that. I certainly want to when I'm back on that seat over there, living it up.

Mr. Albas: The committee can do whatever it chooses to as a committee, but I would point out that because of the number of regulations we have on the books, there are so many points. Having witnesses come in could eat up 45 minutes of a meeting. That's half a meeting.

I think we have been very strategic in that we use counsel. That's one of the reasons why, for example, we're sending counsel to meet with the Transportation Agency, why we send them to the Minister of Transport to deal with these complicated matters. We ultimately want results.

The committee can do what it wants. It is a fair observation, but the number of regulations we have compared to 1975 —

The Vice-Chair (Mr. Bélanger): I'm not going to get into an argument, Mr. Albas; I will wait until I'm back in my chair.

Is there anything else?

(The committee adjourned.)

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