---

Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 17 - Evidence - February 26, 2015

---

OTTAWA, Thursday, February 26, 2015

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

Senator Denise Batters and Ms. Chris Charlton (Joint Chairs) in the chair.

[English]

SOR/2005-127 — UNITED NATIONS CÔTE D'IVOIRE REGULATIONS

SOR/2005-306 — REGULATIONS AMENDING THE UNITED NATIONS DEMOCRATIC REPUBLIC OF THE CONGO REGULATIONS

SOR/2006-164 — REGULATIONS AMENDING THE UNITED NATIONS AFGHANISTAN REGULATIONS

SOR/2006-287 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON THE DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA

SOR/2007-44 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON IRAN

SOR/2007-204 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LEBANON

SOR/2007-285 — SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

SOR/2008-248 — SPECIAL ECONOMIC MEASURES (ZIMBABWE) REGULATIONS

SOR/2009-23 — REGULATIONS AMENDING THE UNITED NATIONS LIBERIA REGULATIONS AND THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LEBANON

SOR/2009-92 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

SOR/2012-121 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

SOR/2009-232 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON THE DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA

SOR/2010-84 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON ERITREA

SOR/2011-114 — SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-220 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-330 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2012-85 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

SOR/2012-107 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS.

(For text of documents, see Appendix A, p. 17A:1.)

The Joint Chair (Senator Batters): We will start off with "Letters To and From Ministers.'' This matter groups together many outstanding regulatory issues, and our committee has written to the Foreign Affairs minister on a few occasions since mid-2013. Two months ago, the minister replied that the package of promised amendments is a priority and continues to be treated expeditiously. He further indicated that the department has prepared a comprehensive preliminary draft for review by the Justice Department.

Peter Bernhardt, General Counsel to the Committee: That's correct. The difficulty for the committee at this point is that on a number of these issues the department has never provided a substantive response addressing the actual points raised. So while the minister and, before that, his officials have indicated that they're preparing amendments, there is no way for the committee to know precisely what concerns the departments agrees with, what concerns they intend to address in the amendments and how they might go about that. While the committee has been advised that amendments are coming, there is no way to know whether those amendments will actually address all of the points, some of the points or which of the points the committee has raised.

Senator Runciman: I wonder whether this is one of those occasions when it would be appropriate for the joint chairs, since we have a new minister in place, to write, bringing him up to speed in terms of the history, what's occurred here and the fact that we have not, as of this date, received a comprehensive response to the committee's concerns, requesting of him that he ask his officials to respond in a timely and appropriate way.

The Joint Chair (Senator Batters): Right. Being as he was just Minister of Justice, perhaps he can have some good back and forth with his former ministry.

Mr. Bélanger: Is Senator Runciman suggesting that the officials appear before the committee?

Senator Runciman: Not at this stage.

Mr. Bélanger: I misunderstood, sorry.

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

Hon. Members: Agreed.

SOR/2005-62 — CANADA PRODUCTION INSURANCE REGULATIONS

(For text of documents, see Appendix B, p. 17B:1.)

The Joint Chair (Senator Batters): Under "Reply Unsatisfactory'' on our agenda, Item 2 deals with 16 points of concern that were initially raised with the department, and amendments have been promised on 14 points. There are two outstanding issues. The Agriculture Department referred this matter for response to the Justice Department. The department is unwilling to make promised amendments prior to completion of a broader review of the regulations, and it says no timeline can be provided. There have been substantive responses provided on the two outstanding issues, but the committee needs to decide whether it considers those responses to be satisfactory.

Senator Stewart Olsen: Reading through the materials, I think that perhaps our position was not well understood. I think it would be of benefit to clarify our position and encourage the department to do the necessary consultations expeditiously.

The Joint Chair (Senator Batters): Any further comments?

Mr. Bélanger: You'll find me a little persistent, Madam Chair. This might be a good occasion for us to invite people to appear before us so we could explain directly and emphasize the need for responses. Would there be agreement with that?

Mr. Albas: No, but I do appreciate the member's continued thrust in this area. When everything looks like a nail, it sounds like you're probably hammering the same point over and over.

I would point out that the department has agreed with the thrust of the committee's concerns. They have come back saying that they have provincial consultation obligations that they have to do, which seems to make a lot of sense. So after reading the file at length, I don't think that this would be an appropriate tool. Although I look forward to the occasion where I agree with the member, it just won't be today.

The Joint Chair (Senator Batters): Let's be positive — not on this point.

Mr. Bélanger: I think that the answer is probably more accurate — not today for anyone — but we'll see.

The Joint Chair (Senator Batters): Then we will write, as Senator Stewart Olsen suggested?

Hon. Members: Agreed.

SOR/2005-143 — USE OF PATENTED PRODUCTS FOR INTERNATIONAL HUMANITARIAN PURPOSES REGULATIONS

(For text of documents, see Appendix C, p. 17C:1.)

The Joint Chair (Senator Batters): Moving to Item 3 on our agenda, our counsel raised six drafting points with the Department of Industry, which counsel considered to be relatively minor. One and a half years later, the department replies that it "will consider'' amendments and, "where necessary, include them in the next appropriate regulatory package.''

Mr. Albas: Madam Chair, there are occasions where we get substantive responses from departments and cases where we get agreement but with less comprehensive outlay as to timelines and what they agree with in which way. I think it would be helpful for us to cordially write back and say that we appreciate that the department is looking to make changes and that we would like to have a deadline, or a timeline at least, as well as to know a little bit more about which areas they will be amending and in what fashion.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

SOR/2002-352 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, VI AND VIII)

(For text of documents, see Appendix D, p. 17D:1.)

The Joint Chair (Senator Batters): Item 4 falls under the heading "Reply Unsatisfactory (?)''. There was one outstanding issue on this file. Our committee has attempted to obtain an amendment to the Aeronautics Act to improve the clarity of one provision. The department indicated this fall that it does not intend to seek such a legislative amendment as it is of the view that the regulatory power in question is sufficiently provided for.

Mr. Albas: We have so many of these files. I do think there is a benefit for us to write to the minister, in particular, and point out that while the committee agrees that there is ample provision for her department to act in the manner that it is, we believe ultimately that legislative amendments should be made to further clarify that there is that authority. Again, I think it's important for us to raise this with the minister and to encourage her to look to seek legislative changes to address that concern. Then we'll see what her response is.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

SOR/2007-262 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND III)

(For text of documents, see Appendix E, p. 17E:1.)

The Joint Chair (Senator Batters): Next is Item 5 under "Part Action Promised.'' We do appear to be making progress here. We have received a substantial reply to the concerns we have addressed. The Transport Department agrees to make some of our proposed changes this spring, and on other drafting matters raised, the department plans a full review of the regulations, including these points. Answers to some other points will need more study.

Mr. Bernhardt: That's correct. The letters from the department on May 2 and November 25 respond to some initial concerns raised back in 2011. I should add that in the interim these points were part of the discussion during a series of meetings held between counsel and officials from the department, so the response in part reflects some agreements that were hammered out in the course of those.

As you indicated, there are probably five points that merit further pursuing. To briefly summarize those, starting with Point No. 2, the remaining question concerns the duplication of the definition of "operator'' in section 101.01 and section 300.01. The department suggested the one definition applies in Part I and the other in Part III. This is simply incorrect. The definition in section 101.01 clearly states it applies throughout the regulations.

Turning to Point No. 4, the issue here is a provision that states the operator of an airport must establish a degree of supervision and control sufficient to manage the size and complexity of an emergency. It was suggested the term "sufficient'' is both vague and subjective. The department has given an explanation as to what exactly it means by sufficient control, in part referring to paragraph 302.202(1)(a) of the regulations, which talks about emergencies that could be expected to occur at an airport or in the vicinity of an airport that could be a threat to the safety of persons or operation of the airport.

Taking all of that into consideration, the suggestion would be that subsection 303.202(2) could be amended to require the airport operator to establish the degree of supervision and control required to manage the size and complexity of the emergencies referred to in paragraph 1(a). That would provide a little more clarity. I should point out that due to some issues with translation, it's not entirely clear in the English version of the note that these amendments would be to both versions of the regulation. The note suggests it would be only be to the French version. That's not the case.

Point No. 8 deals with provisions that refer to responsibilities, duties or roles of certain personnel. The department has tried to argue that there are differences between these various terms. I think that when you look at the explanation, it's difficult to follow, to say the least. There is nothing to indicate that these terms are to be interpreted in any other way other than their ordinary meaning, which indicates there is considerable overlap between a person's responsibilities, duties and roles. I don't think you can clearly say these are three distinct categories. If they do intend some subtle differences, there is a need to clarify that.

Point No. 9 is overlap between a requirement to set out measures to be taken and a requirement to establish procedures. It seems that they are virtually identical and one or the other could be eliminated.

Finally, Point No. 14 concerns the distribution of emergency plans. The regulations require that there be procedures for distributing copies of updated versions of the plan to the personnel who require them. The regulations don't specify who these people are and how you would decide who requires it. Also, there is no requirement to actually distribute the plans, only that you create procedures for distributing the plans, which isn't quite the same thing.

Those are the points we would suggest be pursued in a further letter to the department.

Senator McInnis: I think you should follow up on the outstanding points. The regulation review is down the road. They will set the date in the spring. They didn't say they were actually going to do a review in the spring.

Mr. Bernhardt: No. As you know, senator, the committee has been dealing with a huge chunk of these instruments concerning the Canadian Aviation Regulations. As we see later at the end of the agenda, we're starting to see some amendments work their way through the system. I think they're referring to their immediate next step, which is to have another package of amendments come out in the spring. Once that's done, I think they're going to sit down and decide what the next package will involve and what the time frame for that will be.

So I think the committee could be assured that there will be a further review. The department is trying to convey that they haven't decided the scope and timing of that next step yet.

Senator McInnis: I think we should be pursuing the outstanding points.

[Translation]

Ms. Ayala: We are talking here about a matter of safety that seems quite urgent. We cannot let this drag on. Clarity is really necessary. If an aspect leads to confusion and impacts the safety of citizens, we have to ask for a correction to be made as quickly as possible.

[English]

Senator Stewart Olsen: I would tend to agree. When you send these letters and ask for the amendments, do you set or give them a timeline from this committee?

Mr. Bernhardt: That depends on the committee's decision in each particular instance. Sometimes the committee wishes to give some indication of when it would like to see the file back. Other times, it's more open-ended. I should add that as a matter of internal office procedure, if we haven't been given a timeline to convey by the committee, our fallback is to bring the file forward again in four months.

Senator Stewart Olsen: It might be something to consider in instances like this.

The Joint Chair (Senator Batters): Do you have a timeline to propose on this particular one?

Senator McInnis: No, but some of them seem so obvious when you mention security, who should get the emergency plan, which organizations. They were talking about community organizations and what they meant by that. It's so obvious that that's where we would be in somewhat of an unsafe position if responsible organizations in the community didn't get the plan. I don't know why we would have to wait for review of the regulation to get something as obvious as that out.

Mr. Albas: I appreciate the senator's concerns with regard to this, but we also have to take a look and step back. We sign many international agreements and agree to new standards, and these new standards need to be translated into regulations. What the airlines have been using for many decades, this department has to update in a way that adheres to the international standard but also makes sense to local airlines.

I have to again commend counsel for their ability to work hand in glove with the department to raise our concerns step by step. This is going to be a very long process as we go forward, but it's going to be a very good one because we know that it's harmonization of standards and creating terms that do not leave open a sense of vagueness or uncertainty, particularly on roles and duties and responsibilities. They all are very similar. Those things we can help them with, and I look forward to seeing this issue go forward.

[Translation]

Mr. Bélanger: I hope that we will include in the letter, if not a date, at least an indication that it is important to react quickly. That should be stated in the letter we are going to send.

Ms. Péclet: I was going to make the same point — Mr. Bélanger read my mind.

[English]

Mr. Albas: We received a complete chart that was the work from our counsel and the department outlining all the different areas that are outstanding. There are hundreds of points that need to be addressed that have similar things. They are triaging; they are working on it. They already have a regulatory package going forward, and another one they plan on that they mention in this particular letter.

I do understand that we all want to see things happen overnight. I do sense some urgency here from members. By the same token, I think we have to understand that we are working on a much larger picture and this is one part of it. I would just encourage members to note that the department is working very well with our committee.

The Joint Chair (Senator Batters): So we will write that letter accordingly. Our letters generally express a sense of urgency.

Counsel indicates that they will be meeting again with these officials in the spring and they will convey that message accordingly. Is it agreed to proceed in that fashion?

Hon. Members: Agreed.

SOR/2014-138 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS

(For text of documents, see Appendix F, p. 17F:1.)

The Joint Chair (Senator Batters): Next it Item 6, again under "Part Action Promised.'' This particular matter deals with the National Battlefields at Quebec Act and its corresponding bylaw. The Justice Department has agreed to address drafting issues that we raised, as well as the identification of the proper enabling act, but no proposed timeline has yet been given.

Our counsel has also raised a vires issue with respect to an offence relating to animal excrement. The Justice Department does not agree with counsel's submission.

Counsel, do you have anything further to add?

Cynthia Kirkby, Counsel to the Committee: The relevant subsection of the bylaw states that if a person brings the animal into the park and it defecates, the person shall collect the excrement and deposit it in a waste receptacle. The question is whether that is one obligation or two. They've designated two separate contraventions, one of failing to collect the excrement and one of failing to deposit the excrement. The question is: Have they designated an additional contravention; have they created a contravention? Ultimately, it comes down to the intent, and I'm in the committee's hands at this point.

Mr. Albas: When I first decided to run for local politics, my father asked me why I would want to deal with bylaws concerning animal control. I can't wait to report back to him that I'm still working on those.

However, it is an important matter simply because this is under our responsibility. I do believe that there is a vires concern to have two offences from the enabling legislation when the enabling legislation only calls for one. I think it is a concern.

I believe we should write back and inform them that the committee is still concerned on the vires issue and that we would like to see amendments produced forthwith.

Mr. Hillyer: So is the concern about having two regulations, two punishments if they're violated?

Ms. Kirkby: Yes. There are two separate fines. If the intent was to have two separate fines, there's not a problem, but if the intent was just to have the one fine —

Mr. Hillyer: It's not that we're trying to solve two problems with these regulations; it's just that we're over- punishing by having two regulations.

Ms. Kirkby: If that wasn't the intent, yes.

The Joint Chair (Senator Batters): Is it agreed that we will write and demand a response forthwith?

Hon. Members: Agreed.

SOR/2011-260 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2011-3

(For text of documents, see Appendix G, p. 17G:1.)

The Joint Chair (Senator Batters): Moving on to Item 7 under "Part Action Taken,'' four concerns were raised. Two amendments have now been made. One matter remains outstanding, and the Finance Department does not believe that any remedial action is needed for the fourth concern raised. Dealing with the outstanding matters, similar errors were included in the Proposals for a Miscellaneous Statute Law Amendment Act, 2014, but this particular amendment was not included.

Mr. Bernhardt: That's correct. I suppose the question from the committee to the department would be how and when it intends to proceed with this remaining promised amendment.

The other outstanding issue concerns when an order can be said to come into force. Part 5 of the schedule to the order provides for rates for new tariff items. These new tariff items were added by section 7 of the order, and they have a staggered series of times when they apply.

The coming-into-force provision of the order provides that parts of the order come into force on registration, which was November 17, 2011, and parts come into force on January 1, 2012. The rates established under section 7, by virtue of when part 5 of the schedule comes into force, come into force on the coming into force of the order.

The problem is we have two dates on which parts of the order came into force. When was the order in force? One argument would be if you talk about the order being in force, it's in force when all of the order comes into force and not before, which would be January 1, 2012.

It turns out the department's intent was that the rates apply as of the time the order was registered, which was November 17. That, of course, isn't what the order states.

The department is of the view that, in its words, "the intended result is achieved.''

I think what its arguments really come down is that while the drafting is defective, the department believes that the intent is sufficiently ascertainable. I think what this boils down to, in turn — what they're really saying — is that if the matter ever ended up in court, the department expects that the court would see and fix the drafter's mistake.

The department does agree, however, that if a similar situation were to arise in the future, it would be preferable to expressly mention the particular part. This was a suggestion that was made to it. At the end of the day, I think this is probably as close as the department is likely to come to admitting that an obvious error was made.

Mr. Breitkreuz: I think you almost have to have a sense of humour when you look at some of this. I appreciate your conclusion. This is about as close as they are going to get to admitting an error. I don't understand why they don't want to fix it. Why would you leave the courts to deal with this? I guess we are going to leave that point.

With regard to the third point, I think that they really should deal with this. Maybe we should write back and give them another opportunity to fix this. They must be very busy. I don't know that it would take that much to fix it, so let's just write back and tell them we're waiting for an answer.

Mr. Bélanger: You mentioned the third point.

Mr. Breitkreuz: The third point is the one that I think we should write back on.

The Joint Chair (Senator Batters): That's the outstanding one.

Mr. Bélanger: Not the fourth one?

Mr. Breitkreuz: Not the fourth one. Although I don't know why you would leave the courts to fix something.

Mr. Bélanger: That's a good point.

Mr. Bernhardt: One thing that we could include in the letter is to note their agreement that in the future they should do it differently and note that that would be the expectation.

Mr. Breitkreuz: Sure, but if the committee has no problem with the fourth point, let's just write back on the third point and leave it at that.

Mr. Bélanger: If we are saying that this is as close as they'll come to admitting an error and we are going to just leave it at that, I have a problem.

The Joint Chair (Senator Batters): I think there was a suggestion that that could be noted in the letter.

Mr. Bélanger: Not only note it, but ask that they look at it again and fix it. If you acknowledge that it's an error, or almost acknowledge it's an error, there is a simple way of fixing it. I would hope that we would go to them in a letter on number 4.

Mr. Breitkreuz: It seems like number 4 is not an issue, so let's just deal with number 3.

Mr. Albas: Again, number 3 is the area that we still see outstanding. We asked them for an explanation. They gave us an explanation. There was human error there.

I understand that some people would like to revisit that particular front, but I think that every one of us, in our offices, sometimes see a mistake, and we do not revisit it once it has been admitted to.

We also have written a substantive report to both houses on our concerns about order making. I don't believe that this is at the same level of concern. As far as I can see, when you have a department that actually writes back and gives you an honest appraisal as to what they did and when they have already made a commitment not to do it again, we should probably just look at that as a good answer that has been given in good faith and proceed with the area that we are concerned with, which Mr. Breitkreuz has suggested is Point 3.

[Translation]

Ms. Ayala: One of the roles of regulation is to respect the spirit of the law, and it has to be clear. Otherwise, this will wind up before the courts and people will complain that they have to pay a fee which was not in effect yet, because this was not clear.

In order to make our lives easier, we should specify in the letter that the problems have to be solved. Even if they are overwhelmed, they have to do their work well. The regulations have to be clear as to the date, and the problems we have detected regarding translation and other matters have to be settled. I think that in the letter we have to ask them for greater clarity with regard to the date and all of the other points.

[English]

Mr. Albas: I understand that people want to revisit that point, but we've already substantially made that point. They have answered in return, "Yes, there was an issue with that and we will not do it again.''

I don't see why we would continue to fixate on something that we have already uncovered, asked the department to seek clarification and they've said they won't do it again.

Let's focus on the positive. We need to continue working with these departments on a regular basis. If they had played cute with us and given us a response that was less than forthcoming, I would recommend exactly what the members are asking for. However, in this case, as far as I can see, this issue is settled.

The Joint Chair (Senator Batters): A couple more comments on this point, and then I think we have belaboured it.

[Translation]

Mr. Bélanger: I have no problem with the third point. As for the fourth point, if the lack of clarity can be settled by the courts, we would be remiss if we did not say to them, "Do not wait for this to go before the courts; do it yourself.''

[English]

Mr. Bernhardt: It may be of some help to members in puzzling through this matter that as I look quickly through that part of the order, it seems all of the rates that were intended to come into force on the earlier date provide that the rate would be free. So the only practical possibility is that between November and January some people may have received the benefit of that when in fact they should have paid customs tariffs.

I don't know if it's a consideration — that's for members to decide — but any error in what was paid, collected and owed would be to the benefit of the citizen.

The Joint Chair (Senator Batters): Thank you for that point. And it's over only a two-month period?

Mr. Bernhardt: Yes.

[Translation]

Mr. Bélanger: The lack of a specific date could no longer be used? Is that what you are saying?

[English]

Mr. Bernhardt: That's right. There are different effective dates for a number of the items. Any of the ones that say they are effective on the coming into force of the order provide that the rate is free. So if there was a rate before, there is no longer a rate. If you can make the argument that these provisions didn't come into force until January 1, it may be that there was a period of some six weeks where someone might have been required to pay customs duties but they weren't charged.

The Joint Chair (Senator Batters): Does that remove your concern?

Mr. Bélanger: Yes.

[Translation]

Ms. Péclet: This regulation is meant to accompany a law. Must the act be reviewed? Often, we talk about provisions to review an act. Does the act in question contain a review provision? If the regulations do not specify a date, will the date of the review apply anyway? If we do not know the date when this will come into effect, there may be a problem when the study takes place.

[English]

Mr. Bernhardt: In this case, the situation is somewhat unusual because the customs tariff is a statute. The rates and all the items are actually a schedule to the act. However, there is a power to change those by regulation. Obviously it wouldn't be possible to go back to Parliament and amend the act every time you wanted to change a customs tariff rate or add a new item. Parliament has simply delegated authority here to change that schedule by regulation. That's the situation here.

We have an amendment to that schedule. We know for certain what the rates were as of January 1, 2012. We're only dealing with that short period for some of these, and it seems in this case that there will be no effect other than someone may have gotten off without paying some tariff.

Mr. Breitkreuz: Madam Chair, I think we should move on. Our analysis has been very well explained to us. There is no problem after three years, so there likely will not be a problem. We're maybe spinning our wheels here.

The Joint Chair (Senator Batters): Absolutely. The proposal is that we will write back on number 3. It sounds like the concerns on that fourth point are substantially addressed by the committee.

Is it agreed?

Hon. Members: Agreed.

SOR/2014-140 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix H, p. 17H:1.)

The Joint Chair (Senator Batters): Next is Item 8 under "Reply Satisfactory,'' which is always a nice category. Twenty-one amendments were made to correct drafting errors or French-English inconsistencies that we had raised. Another discrepancy between the English and French versions has been rectified.

Ms. Kirkby: I want to emphasize we get to close two files as a result of this.

The Joint Chair (Senator Batters): Very good. I always like to hear that.

Is it agreed?

Hon. Members: Agreed.

SOR/92-631 — VINYL CHLORIDE RELEASE REGULATIONS, 1992

(For text of documents, see Appendix I, p. 17I:1.)

The Joint Chair (Senator Batters): Item 9 is under the heading "Progress.'' On this matter, it has now been decided that these regulations are to be repealed and the repeal is expected to be published in Part I of the Canada Gazette in 2015.

Mr. Maguire: Do you want to monitor this file or close it?

The Joint Chair (Senator Batters): We will monitor it to make sure it's done in the spring and then close it. Is it agreed?

Hon. Members: Agreed.

SOR/2013-111 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of documents, see Appendix J, p. 17J:1.)

The Joint Chair (Ms. Charlton): Progress has also been made on Item 10. We're told that an amendment to correct an error in the French version will be made before August 1. Does the committee agree to monitor the file?

Hon. Members: Agreed.

C.R.C. C. 1486 — SMALL FISHING VESSEL INSPECTION REGULATIONS

(For text of documents, see Appendix K, p. 17K:1.)

The Joint Chair (Ms. Charlton): There are five items on our agenda under the heading "Progress (?)'', the first of which is Item 11. The committee had advised that reference to the Board of Steamship Inspection should be removed since the board no longer exists. We were promised that would be done in 2013. Now we're being told it will be done by 2015, so sometime later this year. Are committee members satisfied with that timeline? Are there any additional steps to be taken?

Ms. Kirkby: The recent correspondence has focused on references to the board in a departmental standard that's incorporated into the regulations, but there are references in the regulations to the board as well. Perhaps we could confirm with the department that they will be attending to those as well.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.

SOR/2002-164 — NATIONAL CAPITAL COMMISSION ANIMAL REGULATIONS

SOR/2002-165 — REGULATIONS AMENDING THE NATIONAL CAPITAL COMMISSION TRAFFIC AND PROPERTY REGULATIONS

(For text of documents, see Appendix L, p. 17L:1.)

The Joint Chair (Ms. Charlton): Next is Item 12. It seems we're making progress on this item, although I would suggest that it's happening at a snail's pace. We were promised action as far back as 2004, but we found out last fall that the NCC still doesn't even have Treasury Board approval.

Mr. Bernhardt: That's correct. In its last letter, the commission indicates that it's continuing to seek approval of the Triage Statement form. I would note that that's a fairly early step in the government's internal process. We're still at that early step after a decade.

Mr. Albas: Is it possible for counsel to give us more information about the amendments? When you go through it, even though I know this issue dates back, there is very little detail on it.

It seems to me that the NCC appears to be doing its process, but I think more information for members of the committee would be helpful.

Mr. Bernhardt: The two files have some use of terminology in common that's inconsistent. So the files are together because the amendments made to fix that in the one will also have to be made to the other.

Three additional issues arise from the animal regulations themselves. The first is on the question of vicarious liability that arises because of a very broad definition of the keeper of an animal. Certain people come under the definition of someone who is keeping an animal who you would not normally expect to be considered to be keeping an animal.

Mr. Albas: Keeping an animal means that if I borrow my friend's dog, I'm keeping it?

Mr. Bernhardt: If it's found on your property, you're the keeper of the animal, and you're vicariously liable for any damage the animal causes. The committee considered that simply too broad.

The second area relates to designating off-leash areas. It is completely left to the commission's discretion as to how and where and under what considerations to designate these areas. The NCC has agreed to put some criteria in their regulations so that people can see the considerations that will be taken into account when you create an off-leash area.

The third area of concern again relates to a very broad definition, which is the definition of a domestic animal. The definition is so broad that if it's found on our property, it's a domestic animal. So don't have the bear come into your backyard because it will be deemed to be your pet. Again, the committee considered that simply too broad.

Those are the amendments that we're waiting for.

Mr. Bélanger: The interesting thing is that we have more and more coyotes in our backyards in the National Capital Region. I have a picture of one in my backyard. I didn't realize I was responsible for the damage it would cause.

Mr. Bernhardt: Only if you're a tenant of the NCC are you responsible.

The Joint Chair (Ms. Charlton): Where are we at with this file? Are we monitoring it?

Hon. Members: Agreed.

SOR/2006-102 — TRAFFIC ON THE LAND SIDE OF AIRPORTS REGULATIONS

(For text of documents, see Appendix M, p. 17M:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 13, out of eight concerns that we had raised, only one is now outstanding, and it relates to the French term for officer.

Ms. Kirkby: Transport Canada indicated in 2008 that it would amend the act to clarify the French term fonctionnaire, but these amendments were expected to be made by 2013. The timeline has not been met. The latest correspondence indicates that it is uncertain when this amendment will be made.

Senator Runciman: How serious is this? I read the note and Mr. Rousseau's view of a fonctionnaire. I can't recall what the committee did with respect to the Miscellaneous Statute Law Amendment Act, but it seems to me that that would have been the vehicle for this sort of thing. I don't know whether we, as a committee, missed the boat on issues like this, where we should have supplied a list to the House of Commons and Senate committees on relatively minor business like this that should have been dealt with in that way. It was simply a case of either the House of Commons or the Senate committee raising it and it would have, in all likelihood, been incorporated into the legislation. Anyway, that's history now.

You have a letter here, Mr. Bernhardt. It has been four months. I'm not sure what you would recommend in terms of writing back to them because we have an election on the horizon. They talk about exploring all available legislative options. I don't know what they are, whether it's a budget or an omnibus bill.

I'm wondering whether we should simply write back and say, "Can you be more specific?'' or whether we should defer this, monitor it and bring it forward at some point in the future. It's just an exercise in futility, I think, to write back at this stage of the game, but I'd like to have your feedback.

Mr. Bernhardt: I think you're right. This is the Government Property Traffic Act, which isn't amended very often. I'm not sure whether the suggestion on the Miscellaneous Statute Law Amendment Bill was ever made. Assuming it wasn't, I suppose that's something we could suggest now and start the list for the next bill.

Senator Runciman: It'll be 10 years.

Mr. Bernhardt: Hopefully it won't be 10 years before the next one, but at some point I guess the committee has to start pitching for the next bill.

You're quite right. I think initially the committee was probably content because it's a minor housekeeping matter. I think what was given from the department was that the next time the act is amended, they'll clean it up, and the committee took that as satisfactory and kept monitoring the file.

Some time has gone by, and it looks like there is not going to be, in any foreseeable future, a "next time the act is amended,'' so perhaps your miscellaneous statute law amendment suggestion can be made. But you're right; we're working on the next bill by now.

The Joint Chair (Senator Batters): I was going to make a point about the miscellaneous statute bill. I am wondering if counsel could keep track, in a global way, of requests going forward that we make to have these types of things included. Then, when such a law comes out, hopefully in the near future for the next one, we can know which of our requests were adhered to and which weren't.

The Joint Chair (Ms. Charlton): Is that agreed? We'll monitor it for now, and if all else fails we'll be back in 10 years.

Ms. Péclet: They're saying that the seventh question was concerning the incorporation by reference. So it says that it has not been addressed, but the adoption of Bill S-2 will probably address the question. So how will it impact this seventh question? Right now, there is no power to adopt regulations, so it will create it by the adoption of Bill S-2. How will it address the question?

Mr. Bernhardt: In the committee's interpretation of the law, Bill S-2 will provide the power to generally incorporate documents as amended from time to time. That will also apply to all previous incorporations.

Now, in the committee's view, that would retroactively validate this. In the view of the Department of Justice, the bill simply clarifies what would be the case. In any event, the committee and the department have never agreed on the current state of the law. At the end of the day, the real purpose of Bill S-2 is to provide certainty and a clear set of rules. That being said, they are not necessarily the set of rules the committee would have preferred to see, but it does resolve these issues.

Ms. Péclet: It would confirm that this was validly done even though it wasn't.

Mr. Bernhardt: Yes.

Ms. Péclet: Good. Nice job.

SOR/2008-80 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS

(For text of documents, see Appendix N, p. 17N:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 14, four corrections were promised to the committee in 2014 but are now forecast for the middle of next year.

[Translation]

Mr. Bernhardt: In its letter of October 28, 2014, the Department of Transport indicates that the authority has now informed it that the consultations are taking longer than expected, because of the complexity of certain issues raised, and that the publication in Part 1 of the Canada Gazette is expected for mid-2016.

In light of the nature of the questions raised by the committee, it seems that the reference to the complexity of the questions refers to other amendments that will be added to those promised to the committee.

[English]

Mr. Anders: Because three of them involve just the harmonization of English and French, I don't imagine that's where the complexity arises. I could be mistaken, but my guess is that it has to do with the one on repealing section 32, with the conducting of examinations at any time. I'm wondering if they feel that there is a need to conduct impromptu examinations to see whether or not somebody is valid in terms of the Laurentian Pilotage Authority.

I think we should write to get further clarification and more information to figure out what they mean by "complexity.'' I imagine there's some reason they feel the need to conduct impromptu examinations. It would be nice to know why.

Mr. Bernhardt: I think the committee's view is they could do that anyway and didn't need the regulation to do it. What the committee is looking for seems pretty straightforward. Their reference to complexity is probably to some other amendments they've lumped into the package. They may be doing a broader review, but that's just a guess. We could certainly ask that.

The Joint Chair (Ms. Charlton): The suggestion is that we seek clarity around what the complexity is that's holding up this file. Is it agreed?

Hon. Members: Agreed.

SOR/2012-28 — REGULATIONS AMENDING THE WEIGHTS AND MEASURES REGULATIONS

(For text of documents, see Appendix O, p. 17O:1.)

The Joint Chair (Ms. Charlton): Next is Item 15. This is a bit of the "dog ate my homework'' defence. Correspondence was lost in the department for some time. Having now found it, we're promised action for the first quarter of the next fiscal year.

Are there any comments on this matter?

Senator Stewart Olsen: I think we should monitor the file.

The Joint Chair (Ms. Charlton): Is it agreed that we'll monitor?

Hon. Members: Agreed.

SOR/2010-259 — ONTARIO GRAPES-FOR-PROCESSING MARKETING LEVIES ORDER

(For text of documents, see Appendix P, p. 17P:1.)

The Joint Chair (Ms. Charlton): Moving on to "Action Promised,'' the first item is No. 16 on our agenda. The Grape Growers of Ontario have agreed to proceed with the requested amendments. That request has now been sent to Justice for drafting.

Counsel, do you have anything to add?

Mr. Bernhardt: There is a bit of an elephant in the room. The power to impose levies was delegated in 1975. This is the first order imposing those levies, which gives rise to the question of whether levies were being collected in respect to out-of-province marketing between 1975 and 2010 or if levies were not being collected during that period.

As members know, this is a situation the committee has frequently encountered. Is this yet another example of levies being collected under orders that were never brought into force legally? The question for the committee is whether it wants to go there in this case.

Mr. Albas: Thank you to counsel for this report. Obviously this is an area that has concerned us, particularly the delegated authorities at the provincial level where they do not always seem to recognize that there are federal responsibilities.

We have been working with the Farm Products Council to ascertain whether or not the groups in question have done such, and if that is the case, the Farm Products Council has an obligation to work with the committee to try and rectify.

It's perfectly legitimate to write back and express that we would like to have an answer to the question of whether or not levies were collected for interprovincial transfers during the period of time that counsel mentioned. As the committee has written to the Minister of Agriculture in the past outlining its concerns with regard to delegated authorities, particularly the provincial level, and the minister has written back agreeing there could be a concern and that he would consider legislative remedies if it is appropriate to information that he has received, I think this is a case where we need to get more information. If it's relevant, send that to the Minister of Agriculture for his consideration for legislation if necessary.

The Joint Chair (Ms. Charlton): Any other comments? Let's proceed as Mr. Albas suggested.

Hon. Members: Agreed.

SOR/2011-285 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, III AND VI — MARKING AND LIGHTING)

(For text of documents, see Appendix Q, p. 17Q:1.)

The Joint Chair (Ms. Charlton): Item 17 deals with amendments to the Canadian Aviation Regulations. The department has made commitments to address our committee's concern, but we don't have any indication as to what a timeline for such amendments might be.

Is there anything to add? Do we want to monitor or ask for a timeline? I'm in the committee's hands.

We will monitor the file?

Hon. Members: Agreed.

SOR/2014-260 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CONTROLLED DRUGS AND SUBSTANCES ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix R, p. 17R:1.)

SOR/2014-286 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND VI)

(For text of documents, see Appendix S, p. 17S:1.)

The Joint Chair (Ms. Charlton): There are two items on our agenda under "Action Taken.'' Is there anything to add those two files, counsel?

Ms. Kirkby: With the first one, SOR/2014-260, we get to close five files as a result of the amendments that were made. I wanted to bring that to everyone's attention. It is a successful project.

The Joint Chair (Ms. Charlton): Great work counsel. Thank you so much.

Mr. Bernhardt: On Item 19, the note in the second paragraph indicates that it's a fairly substantial amendment, which is a good result for the committee.

Mr. Albas: Can counsel go over item 19? You said the amendment is substantial and sometimes when we're dealing with so many issues with this particular agency, we should note the successes as well.

Mr. Bernhardt: Certainly.

As it indicates, six matters are addressed here in connection with the Canadian Aviation Regulations, so that's the beginning of some action taken on the committee's concerns.

The one I made reference to is the replacement of a requirement that the owner of an aircraft return the certificate of airworthiness within seven days after the coming into force day of an agreement between Canada and another country, transferring responsibility for issuing the certificate to that other country. That's pursuant into an international convention whereby you can accept certificates from other jurisdictions.

The committee took the view that requiring you to return the certificate within seven days of the coming into force of the agreement could in some cases be unfair because a person might not be aware that the agreement had come into force.

The regulations now provide that you must surrender the certificate within seven days after receiving a notice from the minister of the coming into force of that agreement. In that case, it provides more fairness to the owners of aircraft.

Mr. Albas: Good work from our counsel on this. Every time that we help to modernize these kinds of regulations and at the same time make sure that everyone is aware of their obligations, it is a good example of the government being very customer service friendly and letting people know.

The Joint Chair (Ms. Charlton): Are you calling for a vote on that?

Mr. Albas: No. I'm pointing out that our committee had a lot to do with this, and I think we should celebrate those wins when we have them.

Ms. Péclet: It's not the praise of government, don't worry. My question is with regard to Point No. 2, so it's at the beginning. The mention of the Bill S-2 law brought it to my attention. Will this impact Point No. 2?

It says the following:

[Translation]

. . . the response relating to the authority to define by regulation a term used in the parent act appears to be unsatisfactory, but the committee may be satisfied with the department's explanation about the necessity of a provision that. . .

[English]

Will Bill S-2 impact Point No. 2 and how?

Mr. Bernhardt: No, I don't think we're dealing with a situation of incorporation by reference per se. The question is more one of trying to define, in the regulations, a term that's used in the act. To do that you need express legislative authority because then the regulation maker is dictating how the act is to be read and applied.

SOR/2014-25 — REGULATIONS AMENDING THE RADIATION EMITTING DEVICES REGULATIONS (TANNING EQUIPMENT)

SOR/2014-62 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (RUSSIA) REGULATIONS

SOR/2014-63 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (UKRAINE) REGULATIONS

SOR/2014-65 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (RUSSIA) REGULATIONS

SOR/2014-103 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (RUSSIA) REGULATIONS

SOR/2014-108 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (RUSSIA) REGULATIONS

SOR/2014-109 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (UKRAINE) REGULATIONS

SOR/2014-180 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (UKRAINE) REGULATIONS

SOR/2014-183 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (UKRAINE) REGULATIONS

SOR/2014-187 — ORDER AMENDING SCHEDULE 1 TO THE CANADA NATIONAL PARKS ACT

SOR/2014-191 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

SOR/2014-195 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (RUSSIA) REGULATIONS

SOR/2014-196 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (UKRAINE) REGULATIONS

SOR/2014-200 — ORDER DESIGNATING PUBLIC OFFICE HOLDERS AND REPORTING PUBLIC OFFICE HOLDERS UNDER SECTION 62.2 OF THE CONFLICT OF INTEREST ACT

SOR/2014-203 — ORDER AMENDING THE BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER

SOR/2014-205 — REGULATIONS AMENDING THE MARKING OF IMPORTED GOODS REGULATIONS

SOR/2014-214 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

SOR/2014-215 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE (FISHING) REGULATIONS

SOR/2014-222 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL REGULATIONS

SOR/2014-223 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS

SOR/2014-224 — ORDER AMENDING THE IMPORT CONTROL LIST

The Joint Chair (Ms. Charlton): For the record, did you want to deal with "Statutory Instruments Without Comment''?

Mr. Bernhardt: Certainly. There are 21 instruments listed with no comment.

The Joint Chair (Ms. Charlton): Are there any other comments on today's files? In that case, we're adjourned.

(The committee adjourned.)

---