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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 19 - Evidence - May 14, 2015

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OTTAWA, Thursday, May 14, 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]

The Joint Chair (Senator Batters): Good morning. We have a long agenda today because we've had the unusual circumstance where we haven't had a couple of meetings. Thanks, everyone, for your patience and understanding.

First, we want to propose the appointment of Marcy Zlotnick, our long-time clerk, as counsel to the committee. She has been seconded. We would like to have that confirmation made official. Do I have a motion to that effect.

Senator Runciman: I so move.

The Joint Chair (Senator Batters): Moved by Senator Runciman, seconded by Mr. Breitkreuz.

All in favour? Opposed?

Thank you, it's unanimous.

I want to congratulate a long-time member of this committee, MP Patrick Brown, for being selected as the new Leader of Ontario's Progressive Conservative Party. I understand that Mr. Brown resigned as a MP yesterday. I pass along congratulations on behalf of the committee. I'm sure his work on the Scrutiny of Regulations Committee had an impact on his success.

SOR/96-254 — PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS

SOR/2000-299 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1218 — ALTERNATIVE TESTS)

SOR/2000-410 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1238 — SPECIAL ACCESS)

The Joint Chair (Senator Batters): Item 1 on our agenda is under the heading "Letters To And From Ministers." On these matters, the joint chairs wrote to the Minister of Health in January seeking a reply by the end of March, and we still have not received her reply.

Peter Bernhardt, General Counsel to the Committee: That is correct. The file is back at this time at the wish of members. It had been indicated to the minister that it would be appreciated if the reply could be received when the committee next had the file before it. That has proven not to be the case. In the normal course of events, the next step would be to write back to the minister and remind her of the committee's wish for a response.

Senator Runciman: Counsel, what is the average timeline, if there is such a thing, for responses from ministers? I know in my office that it is more than three months.

Mr. Bernhardt: It varies. Three months would be on the quick side of things. There is at times a need for follow-up letters and reminders. It depends from case to case.

Senator Runciman: Our next meeting is planned for when we return.

Mr. Bernhardt: May 28.

Senator Runciman: I didn't see it in the file here. Has your staff ever met with the department?

Mr. Bernhardt: On this file, no.

Senator Runciman: I wonder if in the interim that might be worth a try to convey the strong feelings of the committee with respect to lack of action. Also, the department made commitments to this committee to keep us up to date on progress or lack of same. They've failed to do that and now they're making other commitments. If our frustration and displeasure were conveyed to them and in the interim perhaps some folks in this room might encourage the minister to try to respond prior to that meeting, it would be helpful. I would prefer to see us do that rather than simply write back to the minister at this time. That would be my recommendation.

The Joint Chair (Senator Batters): Does the committee agree with that approach?

Hon. Members: Agreed.

Mr. Bernhardt: I'm not clear on the message I should convey. Is it the case that the committee still wishes the reply from the minister, but in the meantime we would meet with officials?

Senator Runciman: Yes, and the option you outlined in the letter to the minister.

Mr. Bernhardt: All right. Thank you.

SOR/2000-328 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

SOR/2014-141 — REGULATIONS AMENDING THE OIL AND GAS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix A, p. 19A:1.)

The Joint Chair (Senator Batters): With regard to Item 2 on the agenda, in December the joint chairs wrote to the Labour Minister asking her to address these requested amendments, some of which were agreed to in 2003 but omitted from an earlier revision package. The minister wrote a very nice letter back in which she advised the committee that some of the revisions won't start until 2017 and some will be revised by the fall of 2016.

Mr. Bernhardt: That's correct, Madam Chair. It seems from the minister's explanation that the department will proceed with amendments promised to the committee only when it decides to make amendments to the same part of the regulations based on its own prioritization. In the meantime, as we've seen in these files, the committee can wait for a considerable period of time for resolution.

It seems that even where amendments were promised and inadvertently left out of subsequent packages of amendments, the amendments will only be revisited when the department proposes to go back to those regulations for other reasons. The intent of this approach is to be efficient. However, I suggest purely from the perspective of resolving the committee's concerns that the result is quite the opposite.

[Translation]

Mr. Bélanger: Counsel, could you tell us whether it is common practice for the department to fail to commit to reviewing mistakes or making corrections when it amends the same regulations?

[English]

Mr. Bernhardt: It seems to be the current practice for Labour Canada.

[Translation]

Mr. Bélanger: I mean in comparison with the other departments.

[English]

Mr. Bernhardt: Sometimes there is the distinct impression that that is the case in connection with a particular regulation in a particular department. They may say, "We're not going to make these amendments until we revisit the regulations." That's not an uncommon approach.

What's different here is that it seems to be a more systemic approach rather than simply a department saying, "In this case, we think it best to wait." The department seems to be saying, "That's the approach we're always taking with the committee's issues." I think that's a little bit different.

[Translation]

Ms. Quach: We are saying, in the context, that in some cases, the measures have been under review for 10 years, even 25 years in one case, and that these are simple measures to apply. Is it really necessary to wait for the restructuring in 2016 for these measures to be applied, or is it possible that these measures will already have been applied, especially knowing that there were opportunities to proceed with a restructuring and that it was not done for obscure reasons? Is there a way for it to be done before 2016 and 2017? If so, how?

[English]

Mr. Bernhardt: Perhaps one thing that could be mentioned to the department in this case is that in a sense this is precisely the reason you have the miscellaneous amendments program. You can have an expedited process to deal with these sorts of technical issues without having to wait, in this case for example, until the next time you do a complete rewrite of the regulations. Some departments, for reasons I do not know, prefer not to use that process as much as other departments.

It could perhaps be pointed out that this looks like the sort of thing that is perfect for processing by way of a miscellaneous package, and that's the point of having that program. Perhaps it could be resorted to here to wrap this up before another 10 years go by.

[Translation]

Ms. Quach: I propose that we write to the minister and recommend that the expedited correction process be used, because we have been waiting for 10 years in some cases, and 25 years in the case of another file.

[English]

The Joint Chair (Senator Batters): Agreed?

Mr. Albas: I certainly agree with the member. I think that's a very fine suggestion to bring forward, particularly because there are alternate methods. Perhaps the regulatory leads at Labour may not know of the process or may not have used it in quite a while. I think it's good to suggest that.

I just want to point out to members that certain departments may have a regulatory plan. You may remember the files we've seen where Labour has to deal with many oil and gas regulations as far as harmonizing goes. Given the complexity of so many of the regulatory changes, plus some of the legislative changes we've made ourselves and continue to make through different acts, it does make sense to have an efficient process for it.

I do want to support Ms. Quach's suggestion that we follow up and suggest other means, such as the miscellaneous amendment process.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

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

The Joint Chair (Senator Batters): Under the heading "Reconsideration," Item 3 is another example of great work done by this committee and by our counsel. We previously thought one outstanding amendment remained on this matter, but that amendment was also made as the part of the miscellaneous statute law amendment proposals 2014, along with two others that we had requested. Counsel advised the Department of Finance of our concern regarding wording as to when the order came into force.

[Translation]

Mr. Bernhardt: We made a mistake. The three promised amendments have been made and, therefore, the file can be closed.

[English]

The Joint Chair (Senator Batters): All right. Thank you.

SOR/2003-196 — NATURAL HEALTH PRODUCTS REGULATIONS

(For text of document, see Appendix B, p. 19B:1.)

The Joint Chair (Senator Batters): Next is Item 4 under "Reply Unsatisfactory." Initially, 26 points were raised, the majority of which were requests for clarification, drafting issues and English-French discrepancies. Amendments were promised to address 22 points and satisfactory explanations were previously provided with 4 others. Our committee asked in November when these amendments would be made. The department has not yet given us a time frame for that completion in its reply.

[Translation]

Cynthia Kirkby, Counsel to the Committee: The first time the Department of Health promised to amend these regulations was in 2008. In recent correspondence, the committee once again asked the department when it planned to make the amendments to address the committee's concerns.

The letter from the department makes no clarifications in this regard, but the department's website indicates that it plans to publish a proposed regulation in the Canada Gazette Part I during the spring of 2016.

[English]

Senator McInnis: So there is a time frame.

Ms. Kirkby: For the earlier regulations.

Senator McInnis: But not for this.

Ms. Kirkby: Right.

Senator McInnis: Did they do anything with respect to the regulations since we started writing?

Mr. Bernhardt: No. There have been no amendments made to address the committee's concerns.

Senator McInnis: I guess all we can do is try to seek a time frame as to when it will be done.

Mr. Bélanger: Out of curiosity, how will you seek that time frame? Another letter to the minister?

Senator McInnis: Is there another option?

Mr. Bélanger: There is always the option of inviting someone to the committee.

Senator McInnis: Yes, but we found out last time that that's —

Mr. Bélanger: Not desired.

Senator McInnis: Normally not.

Mr. Bernhardt: In this case, the first option would be to write back to the committee's contact person in the department and ask, now that we know when the regulations won't be amended, if they could advise us when the regulations will be amended.

Senator McInnis: Exactly.

Do you always write back to the same person? This was a director, so you would write back to the same director?

Mr. Bernhardt: In the absence of instructions otherwise. Typically, if the committee is not satisfied with responses at that level, the next step would be for the chairs to write to the minister.

The Joint Chair (Senator Batters): Do you wish them to write to the same person?

Senator McInnis: I think so, yes.

Mr. Bélanger: Would it not be interesting if we have, at least once, someone come and appear before the committee so we can ask questions of the person?

The Joint Chair (Senator Batters): On this particular matter, counsel, would it be the usual process? Of course, the committee can do as it wishes, but this is a letter that's been going back and forth to a director at Health Canada. Would it be the normal process that a minister would be written to prior to someone coming before the committee?

Mr. Bernhardt: Probably more often than not that would have been the precedent in the past. There have been instances, as I recall, where that has not been the case, but more often than not that would be the typical escalation of the matter.

Mr. Albas: We should try to use the right tool for the right situation. In this case, we have agreement on 22 points; we just don't have a time frame. If members suggested that we bring witnesses in to ask for a time frame, I would say that that would probably a waste of everyone's time. However, writing the letter seems to be an efficient option and lets the committee stay on top of the file.

[Translation]

Mr. Bélanger: Should the letter be sent to the minister or the deputy minister?

[English]

The Joint Chair (Senator Batters): What is the wish of the committee on that?

Mr. Albas: We've already received some information; we just haven't received complete information. Typically, if someone is working with us in good faith and they agree with the committee, I would say that we should just continue to work with that person.

Mr. Bélanger: Since 2008 is good faith?

Mr. Albas: A lot of these are technical issues. When we have actually substantive agreement, I would say to the member that that's actually the main battle. The other question is timing, and often these are very technical issues. If the member is an expert on these things and thinks that we should bring in expert witnesses to ask them the reasons why they agree with the committee and what the time frame is, I guess it's up to the committee to decide if that's a good use of our time. I would prefer to use that tool for the right file, where there could be better, shared mutual understanding.

Mr. Bélanger: It has just never been used, that's all.

Mr. Albas: It has been used. It just has to be used at the right time.

The Joint Chair (Senator Batters): The proposal is that this Health Canada official be written to again to clarify the time frame. Is it agreed?

Some Hon. Members: Agreed.

The Joint Chair (Senator Batters): We'll note Mr. Bélanger's objection.

Mr. Bélanger: I think the letter should be going up to the person that this person reports to, not the same person, but I know that I'm being outvoted.

Mr. Albas: It's not a question of votes. Usually we have the debates in Parliament, and it's now a matter of making sure that Parliament's will is being followed through regulatory means.

The tradition of this committee — I try and hopefully many of the members who have been here much longer than me do the same thing — is to build consensus. So offering ideas that you can get enough people to say yes to — in fact the whole committee to — is a good thing.

If the member wants to object, I'm not sure what that means in this context. There is no vote, per se. What we are actually suggesting is: Here is how we can deal with it. To me, it seems that a reasonable suggestion has been brought forward.

Mr. Bélanger: Let me explain myself, if I may. If it has been a number of years of just sending letters back and forth, which is the case, my sense is it might be useful if we were to elevate, within the department, to whom we write to as a committee. We have done that in the past. The joint chairs have sent letters to the ministers at times, and it has generated a slightly increased pace of response and a better one. After seven years, I thought it would be useful if we did just that, sending the letter one notch higher within the department. If that's not acceptable, that's fine, but that's what I suggest we consider doing.

The Joint Chair (Senator Batters): The initial proposal on this matter was that that particular Health Canada official be written to. You are suggesting that it be escalated. Are you satisfied having your concern on this matter noted for the record?

Mr. Bélanger: That's the decision of the committee. If my suggestion is not accepted, it will be recorded in the minutes.

The Joint Chair (Senator Batters): I would ask counsel to keep an eye on this particular item and bring it forward to a meeting in the near future to see if we have received a response. Would that be acceptable?

Hon. Members: Agreed.

SOR/2010-120 — MARITIME OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

(For text of documents, see Appendix C, p. 19C:1.)

The Joint Chair (Senator Batters): On this item, No. 5 on our agenda, we raised 153 points regarding these regulations in 2011. Four years later, the Department of Labour has only assessed about half of the issues raised.

Senator D. Smith: Every now and then you see one when you think, "When these guys hear from us, they yawn and try to figure out how to stall and delay." We need to be blunt here. We still don't have a reply to a letter sent almost four years ago. I think we need to do something very blunt and tell them to get on with this because we're tired of waiting.

The Joint Chair (Senator Batters): It has been our counsel writing to departmental officials to this point.

Senator D. Smith: A letter to the minister is appropriate, I think. When you do it, put in bullet points on how long it has taken and nothing has happened.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Batters): All right, we will have that letter written.

SOR/2011-87 — AVIATION OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

The Joint Chair (Senator Batters): Next is Item 6. We raised 39 points on these regulations in 2011 with the department, and despite telling us that a "review" had been completed in 2012, Labour officials have to date only assessed two thirds of our issues. And we don't have a reply from Labour officials addressing the substance of the matters raised.

Mr. Bernhardt: The situation here is basically identical to the previous file. It's probably in the interests of consistency that the same approach be followed. The two files could perhaps be the subject of the same letter.

Senator Moore: What are we saying in this letter to make the point? If they don't do it in a timely way, this is when they should come before the committee.

The Joint Chair (Senator Batters): This particular letter would be going to the minister as opposed to —

Senator Moore: What will it say?

Mr. Bernhardt: The first thing that should be kept in mind for members is that the committee still has no substantive answer on whether the department agrees or disagrees with each of these.

Senator Moore: That's right.

Mr. Bernhardt: Combining the two files together, we have 190 some points. It has been four years. The committee has been told a review is under way. Some technical amendments might be made, but the committee is still operating completely in the dark because there is no indication at this point on each of those points.

Senator Moore: Let's get an answer within 30 days. Let's get an answer in a timely way here, counsel, because they are just ragging the puck.

Mr. Albas: Do you think that drawing in witnesses will be helpful on this, counsel?

Mr. Bernhardt: It depends on what the committee is looking for. Obviously it's not feasible to have witnesses come in and go through 190 points one at a time and discuss the substance of whether there is agreement or disagreement. In that sense, clearly the committee needs something on paper because of the sheer volume of the matters.

If the committee's interest is more in why it's taking so long, those are a different set of issues, depending on where the committee wishes to go with it at this point.

Mr. Albas: Do you think it would be valuable for them to come in and hear the concerns of committee members as far as timeliness and what things the department is working on? Sometimes I feel we don't understand the context of their work in a regulatory environment. As I said, the complexity of their issues is quite high. Bringing them in as witnesses, I don't know if we'd benefit from a highly technical discussion. However, by the same token, it would be good to understand where their priorities are and hear where our priorities are.

Mr. Bernhardt: We had a discussion with departmental officials about two years ago in the hopes of getting something. It would probably carry a lot more weight, to be perfectly blunt, if that message was delivered directly by the committee rather than by staff.

The Joint Chair (Senator Batters): And to the minister. That is the proposal for the letter here.

Mr. Albas: I'm talking about not bringing the minister in because the issues we are having now are more with the department.

This is a question the chairs might want to consider: If we were to do so, would it be in this session? I do know we've missed two meetings. Would the committee find that to be a good use of time?

The Joint Chair (Senator Batters): In that respect, I think we only have two more meetings scheduled before the summer break. That might provide some guidance, and there is quite a full agenda for the next couple of meetings.

[Translation]

Ms. Quach: As for the use of our time, we always take about an hour or an hour and 15 minutes. So if we want to invite witnesses in the next two meetings to clarify the situation, I do not think there would be a problem.

[English]

The Joint Chair (Senator Batters): That certainly has been the case in the past, and we have quite a long agenda today. Next week's agenda is also lengthy because we had to cancel those two meetings.

Senator D. Smith: We are fed up with their indifference, and I think that's the message.

Mr. Albas: If you want to write a letter outlining that, I guess we can do that, but the whole idea of having witnesses is to ask questions and build understanding on both sides.

I would be quite willing to support having witnesses come in on files 5 and 6, but I think based on what the senators and what the chair said, we do have a lot of work and we should limit it to half an hour, especially if we are talking about the overall parts of it and not 190 technical points. That would be a good discussion, but again it's the decision of committee.

Senator Moore: Counsel, when you spoke to them two years ago, what did they say? Did they say, "We'll get to this in due course," or did they give specific timelines as to which items will be cleaned up and when?

Mr. Bernhardt: We were told at that time that there would be the need for extensive consultations.

Senator Moore: Between whom?

Mr. Bernhardt: Chiefly, as I understand it, with Transport Canada because while Labour is responsible for the occupational health and safety, these relate to certain transportation sectors — aviation and maritime. So there is always a need to consult there.

Senator Moore: This is not the first time they had a file before them that involved consultation between departments.

Mr. Bernhardt: No.

As I said, that was the indication at that time, and there was a promise of further updates and advice as to their progress, which took about a year. Then, the last letter indicates that they divided the issues into categories. They assessed half of them, and one third of the half they assessed required further study. That's where they are as of March 2015, after some four years.

Senator Moore: Are we going to bring someone in?

Mr. Breitkreuz: I'll raise a practical issue. They would probably have to come to the next meeting, which is two weeks away. Is that feasible? After that, we all know there is uncertainty as to what will happen in mid-June. Is it possible to do that within two weeks, for half an hour?

Mr. Bernhardt: If that's the wish of the committee, certainly the committee can extend the invitation.

The Joint Chair (Senator Batters): Has past experience been such that a two-week window would be sufficient?

Mr. Bernhardt: In this case, it would be sufficient. They are process issues that are being dealt with. I would be more concerned if the committee wanted a brief on 193 technical points. If what we're dealing with is a question of process, I don't think that's unreasonable.

Mr. Albas: As long as we do it before we rise, that would be helpful. This would be a good opportunity for us to engage with officials, find out the complexity of issues they are dealing with and be able to ask for explanations and hear them. In these cases where there seem to be broader concerns, that would be appropriate.

The Joint Chair (Senator Batters): Initially, Senator Smith proposed we write to the minister. Mr. Albas pondered the possibility of having officials from the department and others appear before us at the next meeting of the committee two weeks from now. It was indicated that it could be a possibility but limited to no more than half an hour. Are members agreed?

Mr. Albas: Again, it doesn't have to be next meeting because I know we have an extensive agenda. I know how that can throw things off. If it is the meeting after that, that's fine.

I want to say for the record that I talked to a few members of the New Democratic Party. They believe that between their house leader and our house leader there probably won't be agreement, so we'll probably be here until June 23. I don't know if that gives anyone confidence, but I think we can safely assume we will probably get these two meetings in.

Senator Runciman: It might be something for the steering committee to take a look at. The issue about bringing in witnesses or not bringing in witnesses has been raised a number of times.

We might want to look at making it a policy of the committee to bring in witnesses a couple of times a year. Given the gravity of the issues involved and the foot-dragging, it would send out a message to the public service. We'll take a look at the most serious offenders, if you will, and the issues involved. Then, at least a couple of times a year, we could bring witnesses before the committee. It would be helpful.

Senator D. Smith: I'm open-minded, but we want to convey that we are really fed up with their indifference. That message has to get to the top. Whatever way you want to achieve that, I'm open to it. We want to convey that we are totally fed up with their indifference to this, and the minister needs to know about that.

Senator Meredith: I concur with Senator Runciman's position. For this committee to be taken seriously with respect to the years that have gone by on these files, it is incumbent that we hold people accountable in terms of responding to our requests in a timely manner and explaining their position. I concur with Senator Smith as well that we should escalate this. Bringing them before the committee would be a way to let them know that we need answers.

Senator Moore: I agree with Senator Runciman's comments. During Senator Runciman's time in the chair here did we not do a review of the departments that were lagging in response? We know which ones were not coming back in a timely way.

Counsel, I think you reported to us on that, so we know who the so-called culprits are or were.

Mr. Bernhardt: That's correct. At the time, three or four departments were brought up. We held a series of meetings with representatives from each and a report back to the committee.

The Joint Chair (Senator Batters): The suggestion is that we refer this to the steering committee so that we can have these witnesses called before us. Is it agreed?

Mr. Albas: That's a separate issue. The proposal on the issue was to write a letter and, if I can paraphrase the good senator, tell them we would like a response as we are tired of what we have been getting. We are going above the department heads and asking for a response.

Someone else said that maybe we should have them in as witnesses. I said I would be open to that, but — no offence to Senator Runciman — we are at the end of a Parliament. Some of us may not be returning as there may be new members. Perhaps we could note this, or some of the members that plan on being here in the next iteration of Parliament could raise this as one of first issues to bring forward to the steering committee. To suddenly decide how we are going to govern ourselves at the end of a Parliament is —

The Joint Chair (Senator Batters): To be fair, Senator Runciman's intent was more forward looking as the steering committee looks at dealing with this a couple of times a year.

Senator Moore: Do you need a motion to bring in the appropriate witnesses two meetings hence? Is that what you want? I will move that to get it on the record.

The Joint Chair (Senator Batters): If there is agreement, then we can proceed in that way, but we would limit it to half an hour. Is it agreed?

Hon. Members: Agreed.

SOR/2011-236 — REGULATIONS AMENDING THE CRIMINAL RECORDS REGULATIONS

(For text of documents, see Appendix D, p. 19D:1.)

The Joint Chair (Senator Batters): With regard to Item 7 on our agenda, we have previously written on three points. The Deputy Minister of Public Safety and Emergency Preparedness has advised that only one of the three points raised will be addressed in upcoming amendments to the regulations. One remaining point concerns English-French discrepancies and one concerns the use of certain terminology in the French version.

Mr. Bernhardt: One amendment promised should be done by the end of year.

In connection with the discrepancy between the English and French versions of paragraph 1.1(d), the department reports it has been advised by the Department of Justice that there appears to be no correction required. I note that the English version authorizes the Parole Board to consider whether the commission of the offence was motivated by a number of listed factors or any other similar factor. The French version simply refers to any other factor.

If it's considered by the Department of Justice that there is no difference between any other factor and any other similar factor, I think the committee is entitled to ask for a greater explanation as to how that can be case. I suggest that point should be pursued.

A third amendment is not referred to in the department's letter explicitly. However, it does say that it's undertaking further review in order to determine if other amendments are necessary. That may be an implicit reference to the third amendment, but it's difficult to say. Perhaps some clarification there would be in order as well. I suggest writing back to the department.

Senator Runciman: We should ask for an explicit reference with respect to that one.

I note that the letter talks about a "preliminary review" by Justice. I wonder what that means. Why would they have just a preliminary review? I guess counsel is suggesting that we have a look at that preliminary review — sort of a battling lawyers' perspective.

Mr. Bernhardt: At least suggest that they might want to take a subsequent review of that particular point. It seems to be fairly straightforward.

Senator Runciman: What would "preliminary review" mean?

Mr. Bernhardt: I have no idea.

Senator Runciman: I think we should write back to the deputy and say that we very much appreciate them moving on the one issue of concern but that we think that we should be receiving better explanations with respect to the other two and that we ask for a timely response.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

MAINTENANCE DREDGING SERVICES TONNAGE FEES SCHEDULE

(For text of documents, see Appendix E, p. 19E:1.)

The Joint Chair (Senator Batters): The first item on our agenda under the heading "Reply Unsatisfactory (?)" is No. 8. Counsel has provided us with a very good summary in this wording: "The formulas for calculating fees in the Fee Schedule did not 'fix' the fees as required by the enabling act. The department had already agreed to address six drafting issues, although no timeline has been provided for those amendments.

The department is of the view that no amendments are required to the formulas in the fee schedule that provide for automatic increases based on increases to the Consumer Price Index because the CPI is published for the upcoming year, and so the amount of fees can be determined in advance. This view is inconsistent with how the committee has consistently interpreted the scope of the authority to fix a fee.

Counsel, do you have anything more to add?

Ms. Kirkby: The suggestion could be made to the department that if this approach is necessary, perhaps the enabling act should be amended to create the authority. For example, instead of allowing the minister to "fix" the fee, allowing the minister to "establish" the fee or to "determine the method of calculating" the fee.

There are also related issues. There are obligations under the act to consult prior to fixing the fee, and there is a directive that the fees may not exceed the cost of providing the service. The question is whether their approach also respects those obligations. We could also raise those issues.

Senator D. Smith: I think they should be asked to also develop a reasonably prompt timeline, a schedule, that they will aim to follow.

Mr. Albas: Through you, chair, to the senator, we are proposing a legislative change, and we are just at the end of a Parliament.

Senator D. Smith: They can factor that into their thinking. Add it to the next omnibus bill.

Mr. Albas: Did you write that down, counsel?

The Joint Chair (Senator Batters): Does anyone have further comments on that? Is it agreed that we write to them on the matter?

Hon. Members: Agreed.

SOR/2005-149 — EXPORT AND IMPORT OF HAZARDOUS WASTE AND HAZARDOUS RECYCLABLE MATERIAL REGULATIONS

(For text of documents, see Appendix F, p. 19F:1.)

The Joint Chair (Senator Batters): Next is Item 9. In 2006, the Environment Department committed to amending a paragraph in the Canadian Environmental Protection Act 1999 to correct an English-French discrepancy. The department proposed submitting this amendment to Parliament when the five year review of this act occurred or when a bill amending the relevant part of this act was introduced. Counsel wonders whether a miscellaneous statute law amendment bill could handle this instead.

Mr. Bernhardt: The question is simply whether the committee is content to await the eventual review of the act or wishes to make that additional suggestion.

Senator McInnis: They have not agreed to do it. The word "if" is there, I note. So if and when.

Mr. Bernhardt: If and when.

Senator McInnis: We should seek assurance that in fact they are going to do it and then seek as to when it would be done.

The Joint Chair (Senator Batters): What is your preference as to which method we ask them to use? Is it the miscellaneous statute law amendment bill?

Senator McInnis: Yes.

The Joint Chair (Senator Batters): That would be your preference?

Senator McInnis: Yes, that would be my preference.

The meanings are very close. One deals with regulations as to how to apply, and the other with regulations for the permit. They are extremely close. I would not suspect that there is a real problem, but it should be corrected. There is no doubt about that.

The Joint Chair (Senator Batters): Are we agreed on that?

Hon. Members: Agreed.

SOR/2013-73 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION ACT

(For text of documents, see Appendix G, p. 19G:1.)

The Joint Chair (Senator Batters): Item 10 on our agenda is certainly an interesting and important matter. As counsel has summarized for us:

While subsection 13.11(1) of the Immigration and Refugee Protection Regulations refers to specified biometric and related personal information that is provided to the Royal Canadian Mounted Police under the Immigration and Refugee Protection Act, there seem to be no provisions of either the Act or the Regulations pursuant to which information would actually be provided to the RCMP. After having been seized of the question for some 16 months, the Department of Citizenship and Immigration advises that it intends to analyze this matter.

Mr. Bernhardt: That's correct. The issue is not necessarily to say that this information may not be provided to the RCMP but simply that if it's provided pursuant to some other authority than the act or the regulations, then the regulations should not indicate the contrary.

The department has explained that it has authority to share the information under provisions of the Privacy Act, that the regulations were put in place to reflect a pre-existing agreement between the RCMP and Citizenship and Immigration. However, it was decided that doing this through regulations would provide more transparency, and it also advises that the source of authority for the arrangement was what it terms the "respective departmental mandates." That may all be well and good, but none of that is providing information pursuant to the act and regulations.

As you say, it now seems the department at least has recognized that there is an issue there and has undertaken to give it some study.

Senator D. Smith: I think it's not a bad idea to respond and say that we would like a time frame as to the manner in which they are going to proceed with this and their proposed schedule so that they know we're watching and that it's not for them to be sitting around. I think we should put the ball in their court on a time frame that is a reasonable one.

The Joint Chair (Senator Batters): Is there agreement with that suggestion?

Hon. Members: Agreed.

SOR/2007-290 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, III AND VIII)

(For text of documents, see Appendix H, p. 19H:1.)

The Joint Chair (Senator Batters): The next item on our agenda is No. 11 under the category "Part Action Promised." Counsel has done a lot of diligent and detailed work on this matter over the last few years. As a result, amendments have been promised to address most of our issues raised. Replies on other points appear satisfactory, and it is suggested that two issues remain to be pursued.

Mr. Bernhardt: That's correct. Those two issues would be the ones discussed in points 5 and 8 of the correspondence.

Point 5 concerns provisions that require a safety management system to include a policy for the internal reporting of hazards, incidents and accidents, including the conditions under which immunity from disciplinary action will be granted. Of course, the purpose of this requirement is to allow the reporting of a hazard without fear of punishment or reprisal. At the same time, the department also emphasizes that there is no intent to preclude discipline where an employee is involved in recurrent issues or cases of negligence or deliberate violations of the safety management system. It's important to note that there is no requirement in the regulations that employees report hazards, incidents and accidents. There is only a requirement for certificate holders to have a policy.

This is only an internal document. It doesn't have the force of law, so it seemed to follow that nobody should be disciplined for failing to report a hazard, incident or accident since there is no legal obligation to do so in the first place. More fundamentally, the issue of disciplinary action has less to do with air safety than it does with labour law. Under the cover of an administrative policy, certificate holders can't supply their own interpretation of the applicable labour legislation.

Regardless of whether this matter falls outside of the scope of the Aeronautics Act, it's difficult to see what actual effect and purpose this policy could have because everyone is going to be subject, both employers and employees, to the applicable labour law in any event. A policy can't change, override or impose an interpretation on that, so whatever is in that policy is legally irrelevant.

The second issue, point 8, concerns provisions that state duties related to the quality assurance program — in effect, that's the internal audit of the quality assurance program — are to be performed by people who don't carry out the specific tasks or activities being audited, unless the size, nature and complexity of the operation justifies it. The intent is to reduce the burden on small companies in remote areas where there may be only one or two people, so the same person has to audit themself.

The departments explained that "small" means operations involving one or two individuals. "Remote" refers to locations not accessible other than by air, and "low operational complexity" means the use of only one type of aircraft, a single aircraft or one or two air movements per week.

This is all very specific, but none of it is reflected in the regulations. I suggest that should clearly be set out in the regulations if there is such a clear a notion of what these terms convey. It would be a case of pursuing those with the department in a letter.

Senator Meredith: I completely concur with counsel's assessment of the situation. There is no clear-cut responsibility, especially on point 8. That has to be clarified.

With respect to the quality assurance, it also has to be stated clearly and definitively, and counsel has talked about the legality of it.

I believe we should write back to the department seeking clarification on these points as to when they are going to ensure it is implemented in the regulations.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

SOR/2013-7 — UNSOLICITED TELECOMMUNICATIONS FEES REGULATIONS

(For text of documents, see Appendix I, p. 19I:1.)

The Joint Chair (Senator Batters): Item 12 concerns an issue that is near and dear to the hearts of many Canadians. The Canadian Radio-television and Telecommunications Commission has now offered a tentative promise to address certain drafting matters when the regulations are next amended. The responses on the outstanding matters appear to be unsatisfactory in this matter.

A meeting was held at the commission's request between our counsel and theirs to review each matter. The subsequent exchange of correspondence does not appear to have advanced the issues on this file, but there is an exception of a tentative promise to address certain drafting matters when the regulations are next amended.

Ms. Kirkby: That's correct. In fact, the commission has now proposed amendments to the regulations to increase the fees and also address some of the outstanding drafting issues. Specifically, those amendments would address inconsistent terminology relating to the terms "fees payable," "telemarketing regulatory costs" and "fiscal year." These issues are described in sections 3.2 and 3.3 of the note.

The proposed amendments would not address the use of the undefined term "abonné" in the French version of subsection 2(1) of the regulations instead of using the defined term "personne" as the equivalent of the defined term "person" in the English version.

As described in section 3.1 of the note, the commission's reluctance to address the discrepancy seems ill-founded, so that remaining drafting matter could be pursued.

The issue relating to whether certain requirements ought to have been met in making these regulations concerns the User Fees Act, which requires a regulating authority to take certain steps before fixing a user fee. The commission argues that the User Fees Act does not apply to these fee regulations essentially on the basis of a 2009 Federal Court of Appeal decision that held that the act did not apply to other CRTC fee regulations. As described in the note, there are various strands to the argument, but this seems to be an expansive reading of the court's decision that could leave the User Fees Act with little application.

Further, the commission's latest letter fails to respond either to legal arguments based on the reasoning in the court case and the text of the act or to the suggestion that if the User Fees Act is not intended to apply to the regulations perhaps the Telecommunications Act could be amended to make this clear, as has been the case for some other acts and fees.

All that being said, however, it should be kept in mind that the User Fees Act does not set out any particular consequences for failure to meet its procedural requirements.

The final issue relates to the Unsolicited Telecommunications Rules, which were created in an appendix to a CRTC decision and established the National Do Not Call List that these fee regulations fund. Amongst other things, those rules prohibit telemarketers from making telemarketing calls unless they subscribe to the list and impose requirements on telemarketers with respect to the records they must keep, the information they must provide during each call and the hours during which they can make those calls.

It was pointed out to the commission that these rules would be seem to be subject to the requirements of the Statutory Instruments Act and that they therefore could only come into force once those requirements were met.

The commission initially responded that as it performs quasi-judicial functions in administering the Telecommunications Act, the rules meet the exception for instruments that are issued, made or established by a judicial or quasi-judicial body and so, on this understanding, the requirements of the Statutory Instruments Act were not applicable.

It was then pointed out to the commission that general counsel to the committee had already rejected this argument in 2007 since what matters is the function being exercised at the particular time and not whether some of the body's other functions can be described as quasi-judicial, in which case all of its instruments would be exempt. An excerpt from the Department of Justice's federal regulations manual that makes the same point was already provided to the commission.

The commission does not address this argument in its latest letter either, simply stating that it appreciates the committee's comments on the matter and will keep these considerations in mind in preparing other regulatory measures.

Mr. Albas: I don't think we quite got the point across to the CRTC, or maybe we did but they are not letting us know about it. I do think the Aliant decision is being interpreted to a wide range of activities, which traditionally has not been the committee's viewpoint.

I do think there is a valid point in suggesting that amendment to the act, exempting the CRTC in cases like these, and we should write instead to the Minister of Industry and make the suggestion that that should be looked at.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

Senator Moore: If we ask that the CRTC be exempt from the User Fees Act — we're suggesting here that they look into it and maybe do that — how does that jibe with our decision of 2009? Is that consistent?

Mr. Bernhardt: The 2009 decision was a Federal Court decision.

Senator Moore: Which said what?

Mr. Bernhardt: It said that certain other CRTC fees were not subject to the User Fees Act because they didn't meet the definition of user fees. The two grounds were that there was a complex regulatory regime that the fee was part of in that case — the whole of the CRTC's operations — and that there was no direct benefit to the person paying the fee.

It's arguable whether that would apply in this case. Here we're not dealing with the whole spectrum of CRTC regulations.

Senator Moore: I understand that. So if this proceeded and the statute was changed so that the User Fees Act did not apply to the CRTC, which I think was the suggestion, it means what we argued for before is wiped away.

Mr. Bernhardt: I took the suggestion to be that these particular fees, the fees imposed in respect of the National Do Not Call List, are not subject to this act.

Senator Moore: I was just wondering about that.

Mr. Bernhardt: I suppose from the CRTC's point of view, it would be for greater certainty.

Senator Moore: Exactly. It's consistent with their thinking. Thank you.

SOR/2014-48 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS

(For text of document, see Appendix J, p. 19J:1.)

The Joint Chair (Senator Batters): Moving on to Item 13, Canada Post has promised to address various points when the regulations are next amended. These points include two French-English discrepancies and two drafting issues. The only issue on which agreement has not been reached concerns whether a definition is required for the term "service indications," which is not used or defined elsewhere in the regulations or the enabling act.

Ms. Kirkby: That's correct. In its letter of September 12, 2014, Canada Post indicated that service indications are used to identify the product such as Lettermail, Addressed Admail, Publication Mail, Business Reply Mail, Parcels and Dimensional Addressed Admail. By way of contrast, delivery instructions are available for two products, Lettermail and Addressed Admail, and are Do Not Forward and Return Postage Guaranteed, respectively.

It was subsequently put to Canada Post that the meaning of these terms may not be clear to the general public and adding definitions to the regulations could improve clarity. Canada Post disagreed with the suggestion, largely on the basis that it would then have to define additional terms such as Addressed Admail, as well.

If the committee agrees, Canada Post could be asked whether more general terms could be used either by defining these terms generally by category rather than identifying specific products or even by referring simply to information other than an address or return address.

In the alternative, the committee may not consider this point worth pursuing since the information is required to be located in the same place on the envelope, regardless of whether Canada Post considers it to be a delivery instruction or a service indication.

Senator Meredith: I have read the file, which is not onerous. We could look at closing this file, but it's up to members if they wish to write back asking for further clarification. My recommendation would be to close the file at this time.

The Joint Chair (Senator Batters): Are members agreed? Do you want to wait for those particular amendments to be made before the file is closed?

Mr. Bernhardt: We could drop that point and then pursue the amendments.

Senator Meredith: Yes, that's correct.

SOR/2014-53 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA POST CORPORATION ACT

(For text of documents, see Appendix K, p. 19K:1.)

The Joint Chair (Senator Batters): On Item 14, three issues were raised in relation to these regulations. Canada Post's response on the first appears to be satisfactory and an amendment has been promised to address the second.

The final issue relates to references to provisions of an international convention. In its correspondence, Canada Post identifies where the documents that contain the referenced convention can be found on the website of the Universal Postal Union, but the wording of the regulations may not provide sufficient guidance to readers on how to locate the relevant materials.

Counsel, do you have anything to add?

Ms. Kirkby: The definitive version that Canada Post identified is contained in a document entitled Decisions of the 2012 Doha Congress. The convention appears to be only about 40 pages of that 334-page decision. It was suggested to Canada Post that it might improve clarity to refer to the Universal Postal Convention as contained in the Decisions of 2012 Doha Congress. This would unambiguously point readers to the right document.

Canada Post rejected the suggestion, although their reasons for doing so seem dubious. It's hard to see how referring to it by its name would not clarify accurately the correct materials. Canada Post suggests that it is redundant to refer to both Doha and 2012, although that is the actual title of the document that Canada Post identified. There doesn't seem to be a principled reason to object to clarifying where the definitive convention can be found.

The Joint Chair (Senator Batters): Does anybody have anything further on that?

Senator Meredith: I suggest that we just write back to them seeking further clarification.

The Joint Chair (Senator Batters): Agreed?

Hon. Members: Agreed.

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

(For text of documents, see Appendix L, p. 19L:1.)

The Joint Chair (Ms. Charlton): Moving on to "Reply Satisfactory (?)" and Item 15 on our agenda, while the department has acknowledged the discrepancies that we identified as a committee, it points out that the Softwood Lumber Agreement expires on October 12, 2015, and amendments will only be made as part of future amendments to the regulations.

Mr. Anders: We dealt with this file previously, and there is a question about how they define the regions, but I want to explain very clearly for counsel how this works.

In 1763, there were two surveyors by the name of Charles Mason and Jeremiah Dixon. They were determining a boundary dispute between the colonies of West Virginia, Pennsylvania, Maryland and Delaware. They drew the line clearly demarcating the four colonies, which later, as a result of the American Revolution, became those American states.

That line was later carried on as the division between the North and South in terms of the Confederacy and the Union, et cetera. Pennsylvania is in the north, Maryland is in the south, Ohio is in the northwest, Virginia is in the south, Indiana is in the north, Kentucky is in the south, Illinois is in the north, Tennessee is in the south, Missouri is in the north, Arkansas is in the south, Kansas is in the north, Oklahoma is in the south, New Mexico is in the north and Texas is in the south. That is the clear North/South divide.

When it comes to the western region, there is a hydrological divide known as the Continental Divide or the Great Divide. You have the coastal areas of Washington, Oregon, California and then Idaho, Nevada, Utah and Arizona also falling within the area because they sit between the Rocky Mountains and the Continental Divide.

These areas are clearly understood. Industry understands that there is no dispute about these lines. When we're looking for clarification, what clarification are we looking for?

Mr. Bernhardt: The suggestion at this point is that there may be no need for clarification. The question is: Do you need to know that to do the calculations in the regulations because the regulations tell you to take the numbers for the West region, for the North region. Our question was: Where are these regions and where do you get the numbers?

It turns out, as we are now advised, that these numbers come from a publication called Lumber Track. It is not directly indicated in the regulations, but the regulations do tell you that when making calculations, you use the figures from Lumber Track. When you go to Lumber Track, you get figures for the various regions. There is still no indication in the regulations or a publication of the regions, based on what you have just explained.

However — and "however" is significant — you don't really need that information. All you need are the numbers for a named region. For example, if I have a calculation I need to make that tells me to take 75 per cent of the last figure for the Western region, I can get that figure. I look up the Western region, get the figure and plug it into my calculation. I don't know what the Western region is, but I don't really need to know what the Western region is because all I need is the number. Hence, "Satisfactory (?)" on this file.

If members are of the same view that it's fine to know where you get the number and which column you can pull the number out of without knowing the whys and wherefores of how the numbers came to be, then the explanation we have at this point on that issue is probably satisfactory.

The Joint Chair (Ms. Charlton): Do members agree that it's satisfactory and that we will close the file?

Mr. Albas: I appreciate the history lesson as obviously Conservatives enjoy their history. It is intriguing that there is almost a spontaneous order where there is a market and a publication that governments seek rather than try to create their own registry. They just use market-based mechanisms. It is a fascinating point.

The Joint Chair (Ms. Charlton): I won't seek consensus about whether that was fascinating, but is there consensus that we close the file?

Mr. Albas: I'm sad to see it go.

Senator Runciman: If counsel has reservations, would you rather we monitor it?

Mr. Bernhardt: There is one minor discrepancy to be resolved if and when there is a new Softwood Lumber Agreement. If the committee wishes, I suppose the file could be kept open to wait and see what happens with that one. It's very minor.

Senator Runciman: But it is your preference that we monitor?

Mr. Bernhardt: Yes, I think probably. It's the difference between American imports and U.S. imports. The agreement refers to one. The regulations refer to the other. The regulations should actually technically use what's in the agreement. Nobody is going to be confused by "American" versus "U.S."

Mr. Albas: It is my understanding that if we did have a new agreement, it would be referred to the committee, just like the old one was, and we would be able to see the discrepancy there. So we might as well keep it open, but, in theory, I'm correct: As a new one comes forward, it will be referred to the committee.

Mr. Bernhardt: If there are changes to the regulations required as a result, yes, and presumably there will be.

The Joint Chair (Ms. Charlton): We will we monitor this file going forward?

Hon. Members: Agreed.

SOR/99-256 — CANADA COOPERATIVES REGULATIONS

SOR/2001-512 — CANADA BUSINESS CORPORATIONS REGULATIONS, 2001

(For text of documents, see Appendix M, p. 19M:1.)

The Joint Chair (Ms. Charlton): The next four items on the agenda are under the heading "Progress," beginning with Item 16. This is again a case where the enabling legislation does not allow substantive rules to be made by regulation. The department agrees and is now considering legislative changes. Consultations have happened and submissions are being reviewed. The department has assured us that committee concerns will be addressed. It's also worth noting that this is the last of 45 issues that we had raised with the department.

Ms. Kirkby: I think there is only one other thing to maybe follow up on with the department. The consultations were on one of the enabling acts, the Canada Business Corporations Act, so they could be asked for a projected timeline and also for confirmation that the necessary amendments would also be made to the other enabling act, which is the Canada Cooperatives Act.

Mr. Vellacott: Great minds think alike. I was going to suggest that we monitor and ask for a progress report.

The Joint Chair (Ms. Charlton): Agreed?

Hon. Members: Agreed.

SOR/2005-293 — BASIN HEAD MARINE PROTECTED AREA REGULATIONS

(For text of documents, see Appendix N, p. 19N:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 17, DFO has indicated that it will resolve outstanding issues with respect to the unnecessary phrase "as amended from time to time." However, they are saying they will do it in the near future, and that's as precise a deadline as we've received.

Counsel, do you have anything to add?

Ms. Kirkby: There is background material in the note explaining how it was a bit of a process to get to this point. At one point, it was to be addressed as part of a miscellaneous amendments package, but that deadline was not met. So we don't really have a timeline for this one either.

Senator Runciman: Keep an eye on the near future, I guess, and monitor.

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

Hon. Members: Agreed.

SOR/2010-173 — REGULATIONS AMENDING THE NEWFOUNDLAND AND LABRADOR FISHERY REGULATIONS

(For text of documents, see Appendix O, p. 19O:1.)

The Joint Chair (Ms. Charlton): Next is Item 18. We were promised action in the near future with respect to an English-French discrepancy. However, there other issues with respect to year-round "close times," and those issues are still in progress.

Mr. Bernhardt: That's correct. The committee has long had concerns with the practice in a number of fisheries regulations of prescribing close times that are either year-round — in effect a prohibition — or what are called token closed times, which can be as short as one hour. For example, 11 p.m. to midnight on New Year's Eve is a common one.

The purpose here is that once a close time has been prescribed by regulation, it can be varied by the fisheries officers on the ground in particular waters so that the actual prescribing of the close time is really just an empty shell. The committee has long objected to that.

The department, some years ago, embarked on a process of gradually eliminating these types of close times as various fisheries regulations came up for review and amendment. As a result, these close times are no longer found in a number of regulations, and they have been partially removed from others. This process is ongoing. Those are the other amendments referred to here that will remove the remaining objectionable close times from these particular regulations.

I should add that the idea is to replace them with a close time that is at least legitimate at the time it was made. That can then be varied after.

Mr. Breitkreuz: I think that progress has been made and that we should continue to monitor the file.

The Joint Chair (Ms. Charlton): Agreed?

Hon. Members: Agreed.

SOR/2011-17 — TOYS REGULATIONS

(For text of documents, see Appendix P, p. 19P:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 19, Health Canada had promised the committee that outstanding amendments would be made by 2013, but as so often happens, the forecast time has shifted again. Now we're being promised completion sometime this spring.

Ms. Kirkby: I checked the Canada Gazette website on Monday, and they had not been done yet. That's as much as we know.

Mr. Bélanger: How often is the Canada Gazette published?

Mr. Bernhardt: Every two weeks.

Mr. Bélanger: Monitor.

The Joint Chair (Ms. Charlton): Shall we monitor this one as well?

Hon. Members: Agreed.

ORDERS MADE BY BOARDS AND AGENCIES UNDER THE AGRICULTURAL PRODUCTS MARKETING ACT

(For text of documents, see Appendix Q, p. 19Q:1.)

The Joint Chair (Ms. Charlton): The next seven items fall under the heading "Progress (?)." Item No. 20 relates to orders made by boards and agencies under the Agricultural Products Marketing Act. Committee members will recall that we have often raised issues about levies that are being imposed by marketing boards and whether those levies are lawful. The Farm Products Council has promised the committee future updates on this file, but we have received no concrete time frame from the council.

Mr. Bernhardt: That's correct. This is by way of the latest update on this issue, with which I'm sure members are all too familiar by now.

The committee had expressed concern that the proposed course of action, which would be to eliminate the requirement that the delegation orders need to be registered and published, would lead to other issues in terms of accessibility and transparency. The minister assured the committee that necessary steps would be taken to make sure that there were appropriate control measures in place.

The council's March 24 letter updates all of this. It indicates that they are now going to proceed on a province-by- province basis. As well, they are examining different options to ensure appropriate federal oversight. This would involve requiring certain information to be provided by commodity boards to the federal government with specific deadlines. This would presumably be done through regulations made under the act.

Given the breadth and the ongoing nature of the problem, the committee had also suggested to the minister that consideration be given to introducing remedial legislation to retroactively validate the illegal collection of money. The minister replied that he was committed to evaluating, at the appropriate time, every option to ensure that all levies were valid.

All that being said, as you indicated, Madam Chair, we are now seven years into the process, and there seems to be considerable work to be done yet on resolving these matters. The committee has no time frame for an overall resolution.

The Joint Chair (Ms. Charlton): Any comments on this file?

Mr. Albas: I am very happy to see that the Farm Products Council is updating this. This is quite a large task, and I think it's good that this committee is continuing to do its good work. I say we just take it as information and continue to monitor the file.

The Joint Chair (Ms. Charlton): Agreed?

Hon. Members: Agreed.

SOR/95-25 — INVESTMENT CANADA REGULATIONS, AMENDMENT

(For text of document, see Appendix R, p. 19R:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 21, we are being promised action in due course with respect to the repeal of two definitions related to "NAFTA investor" in the Investment Canada Regulations.

Ms. Kirkby: Although the English version of the note refers to the definitions relating to NAFTA, it is the definitions of "WTO investor" and "controlled by a WTO investor" that have yet to be repealed. Industry Canada first promised to repeal the definitions in 1996, but they were left out amendments made in 1999, due to an apparent oversight. Since then, Industry Canada has undertaken a broader review of the regulations and has pre-published the promised amendments, amongst others, on two separate occasions, first in 2009 and again in 2012.

The latest letter suggests Industry Canada is still, after three years, reviewing the comments received in relation to the pre-published amendments, with no indication of when they might ultimately be made. It seems unlikely that the comments received during consultation relate to the amendments promised to the committee. So the committee could perhaps ask for these amendments to be pursued independently if other aspects of the proposal are causing further delay. As noted in the materials, the next step may be pre-publication yet again anyway, given that nearly three years has lapsed since the proposed amendments were last published in the Canada Gazette.

Mr. Vellacott: It looks like we have assurances and we have a letter saying they are going to repeal that, but on this whole issue of "in due time," I don't know in a parliamentary sense what that means.

The Joint Chair (Ms. Charlton): Twenty plus years, it looks like.

Mr. Vellacott: We can monitor it. It could go on indefinitely. How does that work?

Ms. Kirkby: We could ask for them to be done separately because it seems to be other aspects of the proposal that are holding it up.

Senator Moore: We could send a letter to that effect. We should.

Mr. Bernhardt: We could write back, ask how things are progressing and make the point that if the committee's amendments are being held up because they are being lumped with other things, maybe they could be separated out.

Senator Moore: It would be good to know that.

The Joint Chair (Ms. Charlton): Agreed?

Mr. Bélanger: We are asking them to deal with it separately?

Mr. Bernhardt: Unless this other package is imminent?

Hon. Members: Agreed.

SOR/95-100 — NEWFOUNDLAND OFFSHORE CERTIFICATE OF FITNESS REGULATIONS

SOR/95-104 — NEWFOUNDLAND OFFSHORE PETROLEUM INSTALLATIONS REGULATIONS

SOR/95-144 — NOVA SCOTIA OFFSHORE AREA PETROLEUM GEOPHYSICAL OPERATIONS REGULATIONS

SOR/95-334 — NEWFOUNDLAND OFFSHORE AREA PETROLEUM GEOPHYSICAL OPERATIONS REGULATIONS

SOR/96-117 — CANADA OIL AND GAS GEOPHYSICAL OPERATIONS REGULATIONS

SOR/95-187 — NOVA SCOTIA OFFSHORE CERTIFICATE OF FITNESS REGULATIONS

SOR/95-191 — NOVA SCOTIA OFFSHORE PETROLEUM INSTALLATIONS REGULATIONS

SOR/96-114 — CANADA OIL AND GAS CERTIFICATE OF FITNESS REGULATIONS

SOR/96-118 — CANADA OIL AND GAS INSTALLATIONS REGULATIONS

(For text of documents, see Appendix S, p. 19S:1.)

The Joint Chair (Ms. Charlton): Item No. 22 deals with a number of regulations. They deal with amendments made under NRCan's Frontier and Offshore Regulatory Renewal Initiative, which we are being told may take up to five years to be completed.

[Translation]

Mr. Bernhardt: Exactly. Several dozen amendments have been promised for the regulations listed. All the regulations will have to be revised closely in what the Department of Natural Resources calls the regulatory framework.

This large project involves hundreds of pages of regulations. The department's most recent letter indicates that development of the regulatory framework began in late 2013 and that public consultations should begin in late 2016. It may be up to five years before the new regulations come into force.

[English]

Senator McInnis: All we can do is monitor. It's an extremely ambitious undertaking. They were supposed to have it completed several years ago, but the public consultations will take place in 2016. Senator Moore and I will attend the hearings in Nova Scotia to ensure they are properly taken care of in a timely fashion.

The Joint Chair (Ms. Charlton): Thank you very much. We will monitor this.

SOR/2000-273 — TOBACCO REPORTING REGULATIONS

(For text of documents, see Appendix T, p. 19T:1.)

The Joint Chair (Ms. Charlton): Next is Item 23. Committee members will note that amendments were first prepublished in 2001 and we've received notice now of another delay, this time to the winter of this year. Is there anything to add?

Mr. Breitkreuz: I think we should keep monitoring this and ask for a progress report. That would be the logical thing to do, unless counsel suggests otherwise.

The Joint Chair (Ms. Charlton): The progress report indicated we would see amendments in the winter of 2015. Are you looking for an update before then or monitor until the fall and follow up?

Mr. Breitkreuz: We're not going to be meeting until then, so I would ask that we continue to monitor and ask for a progress report.

The Joint Chair (Ms. Charlton): Agreed?

Mr. Breitkreuz: I was thinking of the fall of 2015.

The Joint Chair (Ms. Charlton): Which one is the winter of 2015? Is it the one that ends this March or the one that starts in December 2015?

Mr. Breitkreuz: I'm from Saskatchewan; it starts in September.

The Joint Chair (Senator Batters): I can concur with that.

Mr. Albas: I read the same thing and I think there is a little confusion here, so writing back seeking an update is appropriate to make sure we all have the same time frames.

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

Hon. Members: Agreed.

SOR/2003-296 — REGULATIONS AMENDING THE WILDLIFE AREA REGULATIONS

(For text of documents, see Appendix U, p. 19U:1.)

The Joint Chair (Ms. Charlton): On Item 24, we were expecting amendments last year. Now the time frame is more likely to be later this year. Should we monitor?

Mr. Bélanger: Yes.

The Joint Chair (Ms. Charlton): Agreed?

Hon. Members: Agreed.

SOR/2008-124 — BOWIE SEAMOUNT MARINE PROTECTED AREA REGULATIONS

(For text of documents, see Appendix V, p. 19V:1.)

The Joint Chair (Ms. Charlton): On Item 25, we are being promised an amendment to section 4(e) in the "near future," but DFO is indicating that consultations about a management plan are actually ongoing.

Shall we monitor?

Mr. Bernhardt: I should probably emphasize for members the fact that when these regulations were before the committee on March 12, members were dissatisfied that a reply from the department had not been provided and it was decided to write to the minister.

It should be noted that the department was clearly paying attention to those proceedings because before that letter could be drafted, we did receive the April 2 letter from the department. So someone was paying attention.

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

Hon. Members: Agreed.

SOR/2011-300 — REGULATIONS AMENDING THE FISH HEALTH PROTECTION REGULATIONS

(For text of documents, see Appendix W, p. 19W:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 26, DFO has told the committee it would not amend the regulations to resolve issues around discretion since the regulations would be repealed entirely in 2014. Now we are told it will happen sometime this year.

Does counsel have anything else to add?

Mr. Bernhardt: No.

Mr. Vellacott: All we can do is monitor at this point. I don't like it when discretions are given to authority figures like that, especially if it is clear that stipulations need to be met. I'm not at all a fan of imposing arbitrary or subjective discretions, but it looks like they made the commitment to do it, so monitor it and make sure they do it.

The Joint Chair (Ms. Charlton): Is it agreed to monitor the file?

Senator Moore: Bring it ahead in the first session in the fall after the summer break or something like that. Does that make sense?

Mr. Bernhardt: When we are instructed to monitor, it goes into the usual "bring forward" system and it would come up presumably in the fall.

Senator Moore: Thank you.

[Translation]

Ms. Quach: In the case of several files, we have been told that the work was to be done in 2014, but that it was pushed back to 2015, and we are monitoring the situation. But have any reasons been given to explain why the work was not done? Did they not have enough time or were there other priorities?

Aside from proposing an expedited corrective process, is there a way for the committee to ensure that these issues are addressed instead of simply postponed?

[English]

Mr. Bernhardt: There is no single reason provided. The explanations tend to be somewhat similar, including the need for further consultation, exchanging of drafts back and forth with the Department of Justice and the drafters identifying issues that weren't foreseen previously that required further work. It runs the spectrum of the usual reasons the committee is given as to why these things get delayed.

I don't think in these cases there is a single theme, but they are the usual reasons why these sorts of things get delayed.

[Translation]

Ms. Quach: Is monitoring the only thing we can do? Is it possible to ask that this be addressed more effectively?

[English]

Mr. Bernhardt: Usually the committee is concerned more with "when" as opposed to "why." Typically the committee would be more concerned with saying, "You have now given us this deadline, please make sure that this new deadline is going to be respected," and perhaps less with why it has been postponed. That is not to say it could not be a concern of the committee if it wished.

[Translation]

Ms. Quach: Earlier there was a file from seven years ago that was pushed back. Once again, the committee said that it was going to monitor the file. But if it is seven, 20 or 40 years, and we always say that we will monitor the file, ultimately the department will be able to delay it indefinitely.

[English]

Mr. Bernhardt: It can be difficult at times, almost a bit of tease. If a forecast timeline passes and is not met and then the next one, for example, is in the fall, to the committee it may seem perfectly reasonable to wait on the grounds that the fall is not that far away. The committee may say, "Let's monitor the situation because now they are telling us it's going to be done very soon." The difficulty is that the deadline tends to get pushed back. If it's only being pushed back short periods of time, looked at as a snapshot, it may seem perfectly reasonable. It's only if one adds it all up and looks at the total chronology and realizes that it has been postponed six or eight times for six months at a time, it adds up to a number of years. It becomes a more obvious red flag when something is delayed for five years.

The issue is also whether it's a minor amendment or a significant concern. It does become a case-by-case approach.

Mr. Vellacott: The department has indicated as recently as February that this is all about when they repealed the Fish Health Protection Regulations because they will have it under the Health of Animals Regulations, making it redundant and no longer required. The department indicated in February that they will have the regime in place in 2015, whenever the CFIA is ready to implement that domestic disease control program.

You obviously don't want to let that lapse until the other is in place. It is like jumping from one tree to the next; you cannot let go of one until the other is in place. I understand that's the biggest point here. We don't want to leave a lapse between the two. One is no longer is in place but is covered by a broader regime.

Mr. Bernhardt: I suspect the issue is that the replacement is ongoing and nothing will happen until they are ready.

Mr. Albas: I'm glad Mr. Vellacott raised that point because the officials that seek to protect these marine protected areas can only operate by the regulations they are given. We give them direction through Parliament, but ultimately the tools they need are on the regulatory side. For that reason and considering the complexity and the fragility of these protected areas, that's exactly the reason. Thank you for raising that point.

The Joint Chair (Ms. Charlton): So will we continue to monitor?

Hon. Members: Agreed.

SOR/2005-348 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND V)

(For text of documents, see Appendix X, p. 19X:1.)

The Joint Chair (Ms. Charlton): There are two items under "Action Promised," the first being Item No. 27. With respect to Parts I and V of the regulations amending the Canadian Aviation Regulations, action is indeed promised, but the time frame for dealing with the four points the committee raised is not consistent across all four.

Mr. Bernhardt: I suppose we could write back on the one point and ask for a time frame. Two of the amendments are supposed to be made this spring. Another will be part of the certification review process. The fourth amendment they have promised to make, but they have not indicated when. I suppose the only action the committee might consider is asking on that one point.

Mr. Breitkreuz: I agree with counsel.

The Joint Chair (Ms. Charlton): Is there agreement that we proceed as counsel suggested?

Hon. Members: Agreed.

SOR/2007-277 — FIRST NATIONS PROPERTY ASSESSMENT AND TAXATION (RAILWAY RIGHTS- OF-WAY) REGULATIONS

(For text of documents, see Appendix Y, p. 19Y:1.)

The Joint Chair (Ms. Charlton): Moving to Item 28, at some point we might want to get a briefing note on the difference between "at the earliest opportunity," "in the near future," and "in due course." Nonetheless, amendments to deal with French-English discrepancies will be dealt with at the earliest opportunity.

Shall we monitor to see how early that is?

Hon. Members: Agreed.

INDIAN ACT AMENDMENT AND REPLACEMENT ACT, S.C. 2014, C. 38

(For text of documents, see Appendix Z, p. 19Z:1.)

The Joint Chair (Ms. Charlton): Under "Action Taken" and Item 29 on our agenda, counsel advises that Bill C-428 has addressed the outstanding concerns of the committee, so I suspect that file can be closed.

Ms. Kirkby: It addresses two separate concerns the committee has raised in the past. I explained that in the note, but the order is still showing as law on the website of the Department of Justice. The suggestion was that we could write to ask how the department intends to deal with the order now that the enabling authority for it has been revoked. Does it need to revoke the order or can it simply be removed administratively from the website?

Mr. Albas: That's the right way to go.

I also want to congratulate Rob Clarke, a former member of the committee, for successfully making legislative changes and seeing them brought into law.

SI/2013-123 — ORDER FIXING FEBRUARY 1, 2014 AND FEBRUARY 1, 2015 AS THE DAYS ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2014-56 — PROCLAMATION GIVING NOTICE THAT THE PROTOCOL AMENDING THE CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE FRENCH REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL SIGNED ON MAY 2, 1975, AS AMENDED BY THE PROTOCOL SIGNED ON JANUARY 16, 1987 AND AS FURTHER AMENDED BY THE PROTOCOL SIGNED ON NOVEMBER 30, 1995 CAME INTO FORCE ON DECEMBER 27, 2013

SI/2014-90 — PROCLAMATION DECLARING THE YEAR 2015 AS THE « YEAR OF SPORT IN CANADA »

SI/2014-93 — RON ADAMS REMISSION ORDER

SI/2014-94 — FREDERICK BEAULIEU REMISSION ORDER

SI/2014-95 — JOHN WAGONTALL REMISSION ORDER

SI/2014-96 — ORDER FIXING NOVEMBER 1, 2014 AS THE DAY ON WHICH THE ACT COMES INTO FORCE

SI/2014-97 — ORDER DECLINING TO REFER BACK TO THE CRTC DECISION CRTC 2014-412

SI/2014-99 — ORDER FIXING JANUARY 1, 2015 AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ECONOMIC ACTION PLAN 2013 ACT, NO. 2 AND THE ECONOMIC ACTION PLAN 2014 ACT, NO. 1 COME INTO FORCE

SI/2014-100 — ORDER FIXING JANUARY 2, 2015 AS THE DAY ON WHICH DIVISION 30 OF PART 6 OF THE ACT COMES INTO FORCE

SI/2014-101 — ORDER FIXING JANUARY 1, 2015 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2014-102 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE

SI/2014-104 — ORDER FIXING NOVEMBER 28, 2014 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2014-106 — ORDER FIXING MARCH 16, 2015 AS THE DAY ON WHICH SECTIONS 220 TO 222 OF THE ACT COME INTO FORCE

SI/2014-107 — ORDER FIXING JANUARY 1, 2015 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2014-111 — ESTATES OF KATHLEEN MCGOWAN AND WILLIAM F. MCGOWAN REMISSION ORDER

SI/2015-2 — ORDER DESIGNATING THE MINISTER FOR INTERNATIONAL DEVELOPMENT AS THE MINISTER FOR THE PURPOSES OF THE ACT

SI/2015-3 — ORDER DESIGNATING THE MINISTER OF TRANSPORT AS THE APPROPRIATE MINISTER FOR THE FEDERAL BRIDGE CORPORATION LIMITED FOR PURPOSES OF THE ACT

SI/2015-7 — ALLAN PYSHER INCOME TAX REMISSION ORDER

SOR/2014-241 — ORDER 2014-87-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2014-244 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2014-246 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES

SOR/2014-249 — REGULATIONS AMENDING THE SUPPLEMENTARY DEATH BENEFIT REGULATIONS

SOR/2014-257 — ORDER AMENDING THE AUTOMATIC FIREARMS COUNTRY CONTROL LIST

SOR/2014-276 — ORDER SPECIFYING THE MINIMUM AMOUNT OF GRAIN TO BE MOVED, NO. 2

SOR/2014-298 — REGULATIONS AMENDING THE CITIZENSHIP REGULATIONS

SOR/2014-314 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (LIL'WAT NATION)

SOR/2014-317 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (UKRAINE) REGULATIONS

SOR/2015-7 — ORDER 2014-87-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2015-10 — ORDER AMENDING THE AUTOMATIC FIREARMS COUNTRY CONTROL LIST

SOR/2015-11 — ORDER AMENDING THE AUTOMATIC FIREARMS COUNTRY CONTROL LIST

SOR/2015-13 — ORDER FIXING THE DAY FOR THE PURPOSES OF SECTIONS 130, 133 AND 135 OF THE ECONOMIC ACTION PLAN 2014 ACT, NO. 1

SOR/2015-14 — ORDER FIXING THE DAY FOR THE PURPOSES OF SECTIONS 131, 132, 134, 136 AND 137 OF THE ECONOMIC ACTION PLAN 2014 ACT, NO. 1

SOR/2015-15 — ORDER FIXING THE DAY FOR THE PURPOSES OF SECTION 143 OF THE ECONOMIC ACTION PLAN 2014 ACT, NO. 1

SOR/2015-16 — ORDER FIXING THE DAY FOR THE PURPOSES OF SECTION 144 OF THE ECONOMIC ACTION PLAN 2014 ACT, NO. 1

SOR/2015-28 — ORDER AMENDING SCHEDULE 1 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2015-1 (AITCHELITZ, KWAW-KWAW-APILT AND SKOWKALE)

SOR/2015-29 — REGULATIONS AMENDING THE ANNUAL STATEMENT (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

SOR/2015-30 — REGULATIONS AMENDING THE ANNUAL STATEMENT (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/2015-31 — REGULATIONS AMENDING THE ANNUAL STATEMENT (INSURANCE COMPANIES AND INSURANCE HOLDING COMPANIES) REGULATIONS

SOR/2015-32 — REGULATIONS AMENDING THE ANNUAL STATEMENT (TRUST AND LOAN COMPANIES) REGULATIONS

SOR/2015-33 — REGULATIONS AMENDING THE SPECIAL IMPORT MEASURES REGULATIONS

SOR/2015-34 — ORDER AUTHORIZING THE ISSUE OF TWO TWENTY-FIVE CENT CIRCULATION COINS SPECIFYING THE CHARACTERISTICS AND DETERMINING THE DESIGN

SOR/2015-37 — ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER

The Joint Chair (Ms. Charlton): Moving on to "Statutory Instruments Without Comment," I believe there are 43.

(The committee adjourned.)

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