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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 16 - Evidence - March 9, 2017

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OTTAWA, Thursday, March 9, 2017

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

Senator Pana Merchant and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

The Joint Chair (Senator Merchant): Good morning and welcome. I don't think that Senator Gold knows because I haven't said anything to my colleagues, but I woke up one day about a month ago and decided it was time for me to leave the Senate. So this may be my last meeting with you. I've been here for 14 years. I don't know what I'm going to do, but I'm going to do something different.

I want to thank you all very much. It's been a great pleasure getting to know you a little bit and working with both sides of the house because, as you know, the Liberal senators no longer caucus with the national caucus. So this was my caucus every second week. I could see people from the other side and hear your views, and it was always very enlightening. You are all very bright and some of you are nice and young, which I like. I like to see new people taking our places, so it's time for me to go.

I'd like to welcome Senator Gold. He is one of the new senators who are no longer directly appointed but get here because of their very good credentials. He has been a good contributor in the Senate already.

Welcome to this committee. I hope you come back. I'm not sure if you're a permanent member here now or if you're just subbing for somebody.

Senator Gold: I'm subbing for Senator Wallin.

The Joint Chair (Senator Merchant): Welcome, senator.

Senator Gold: Thank you.

SOR/96-335 — AIR TRANSPORTATION REGULATIONS, AMENDMENT

(For text of documents, see Appendix A, p. 16A:1.)

SOR/2017-19 — REGULATIONS AMENDING THE AIR TRANSPORTATION REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix B, p. 16B:1.)

The Joint Chair (Senator Merchant): We'll start this morning with the Air Transportation Regulations amendments as the first item. You'll remember that we were going to call witnesses, but action has been taken on most of the points, so I'm wondering if our general counsel could make a comment and whether she still wants to have witnesses appear.

Evelyne Borkowski-Parent, General Counsel to the Committee: If members will allow me, I'll deal with point number one and number two simultaneously.

SOR/2017-19 was published in the Canada Gazette this past February 22 and made the last three amendments the committee was awaiting on SOR/88-58, which was one of the longest outstanding files, dating all the way back to 1989.

SOR/2017-19 also corrected nine drafting errors on Item No. 1, SOR/96-335, which leaves four points outstanding on that particular file. As there were no other issues with instrument SOR/2017-19, it can therefore be closed.

As for Item No. 1 on our agenda, SOR/96-335, the letter of January 13, 2017, from the Canadian Transportation Agency indicates that the remaining four amendments will be part of its regulatory modernization initiative, which should be implemented in 2018.

At the October 20 meeting, members asked that officials from the Canadian Transportation Agency appear to explain a shocking series of unacceptable delays on both SOR/96-335 and the now closed SOR/88-58. That appearance of witnesses is scheduled for the next meeting on April 6. Therefore, this file is brought back to you this morning to determine if it is still the wish of members to have witnesses appear on April 6 with regard to these two files.

The Joint Chair (Senator Merchant): Any comments?

[Translation]

Mr. Dusseault: I think that the reply we received is rather satisfactory, fortunately. For my part, I want to congratulate the committee for its work. In the regulations, the impact study summary states that it is thanks to the Joint Committee for the Scrutiny of Regulations that amendments were made to the regulations. I think we should pursue our efforts regarding the missing items that are not satisfactory for the moment. We need to submit another written request to ask them when they intend to correct the items that are still not satisfactory.

Mr. Di Iorio: I think that we have to make sparing use of the tools we have to convene witnesses, and we will be much more effective that way. In this context we did in any case obtain very good results. With the help of other means, such as the good resources our counsel makes available to us, we could envisage a definitive solution.

[English]

The Joint Chair (Senator Merchant): Are we all agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Merchant): So now we're going to agenda Item No. 3.

[Translation]

ACCESSIBILITY OF MATERIAL INCORPORED BY REFERENCE — CONSIDERATION OF A DRAFT REPORT

(For text of documents, see Appendix C, p. 16C:1.)

Ms. Borkowski-Parent: This morning I am presenting the draft report on accessibility of material incorporated by reference which was requested at the October 20 meeting for discussion purposes. You will recall that the committee had given the Department of Justice 60 days to provide its written observations concerning access to documents incorporated by reference. The comments of the Department of Justice were inserted in the documents that were circulated in preparation for this morning's meeting. Overall, those observations were already commented on in the draft report. This draft is presented to you this morning for discussion.

[English]

The Joint Chair (Senator Merchant): You will remember there were three issues: only English; the money issue; and the temporal application.

[Translation]

Mr. Dusseault: I would like to thank our legal counsel for drafting the report. I agree entirely with the four recommendations. I want to reiterate my support for the recommendations that appear at the end of the report, which are in my opinion very appropriate given the context.

[English]

The Joint Chair (Mr. Albrecht): I'm confused as to the recommendations. Regarding the actual letter we received back from the Department of Justice, I have a couple of questions. One would be that in the second paragraph on page 2, this question is asked:

What steps would be required would depend on whether it would be possible to obtain the copyright, if any, to the document; whether it could be posted and distributed on the government's website, and so on.

I'm not a lawyer, but it seems strange that there was a regulation that a company or a department needs and it's under some type of copyright provision. How possibly could you access it? I'm confused as to why it would be under copyright and not accessible to the persons who actually need access to it?

Ms. Borkowski-Parent: I think that's the main issue with incorporating a third party standard. Those third parties will develop those standards at a cost and then claim copyright on their document. The way to access the document that is protected by copyright is to purchase it.

The Joint Chair (Mr. Albrecht): Even online?

Ms. Borkowski-Parent: Correct.

The Joint Chair (Mr. Albrecht): As a read-only?

Ms. Borkowski-Parent: Read-only could be one of the avenues to go around —

The Joint Chair (Senator Merchant): The cost?

Ms. Borkowski-Parent: It would necessitate departments making an agreement with the copyright holder to provide read-only access, but that responsibility lies with the departments.

Mr. Picard: I'm brand new to his committee, but I happen to have some experience with copyright online. Even a document available online would require, at a minimum, the permission of the author. Perhaps that explains why you have to go through some steps, including purchasing, but it's not surprising.

Mr. Oliver: On a different topic, I agree with recommendations 1, 3 and 4. But on the official languages obligation, the letter back from the chief of staff for the Deputy Attorney General's office stated:

The governing principle, as established by the Supreme Court of Canada in the Reference re Manitoba Language Rights (1992), remains that material must be incorporated by reference in both official languages absent a bona fide reason for the incorporation of unilingual material.

Number 2 doesn't seem to reflect that. Could you just help me understand our recommendation versus the interpretation in the letter we got back?

Ms. Borkowski-Parent: That interpretation from the Department of Justice is based on Reference re Manitoba Language Rights. That portion is covered in the report in the sense that when Parliament enacts a statute or a regulation, it is deemed to be aware of the state of the law. Manitoba Language Rights dates back to 1992, if I'm correct.

When Parliament enacted the amendments in the Statutory Instruments Act to provide for the accessibility of incorporated documents, it was aware of its constitutional obligations after the Manitoba Language Rights decision. By adding that accessibility requirement, Parliament must have meant more than just meeting the bare minimum constitutional standard. In lack of other guidance from departments or the Department of Justice, it's up to the committee to decide what "accessible'' means.

In this instance, Environment and Climate Change Canada, when asked about their incorporation of a third party standard, said that unilingual at a cost was considered acceptable. The committee, in its mandate to see that the requirements of the Statutory Instruments Act are met, is now in a position to decide what "accessible'' should mean. Presumably it means more than just meeting the bare minimum constitutional requirements. That's explained in the portion on the language in the report.

Mr. Oliver: Okay. Thank you.

Mr. Genuis: I want to congratulate those who worked on this file. I concur completely with the recommendations. I think you make the point well that it's not necessarily about meeting the bare constitutional minimum; it's about the kind of regulatory framework that reflects the values that we as Canadians have.

As I've said before, I am generally not keen on incorporation by reference, so I appreciate recommendation 1 in that context, as well as the way the document deals with the specific issues. So I'm prepared to approve the report as is.

[Translation]

Mr. Di Iorio: I would also like to congratulate our legal counsel and the team that prepared this very rigorous document, also notable for its lucid style. It is very much appreciated.

I have a few questions to ask you. Recommendation 1 states:

That the Statutory Instruments Act be amended in order to require that incorporation by reference should be used only where it would be impracticable to do otherwise. . . .

My question has to do with the concept of impossibility, in the French; things can be relatively impossible, or absolutely impossible. I was wondering if we should not clarify the recommendation to situate those who will read this report, so that they may understand what we are referring to when we talk about things being impossible.

I agree with my colleague Mr. Genuis; there is something bothersome as regards equity, when it comes to incorporation by reference. We can all readily imagine the traveller who arrives at the airport and is told, "No, sir, you are wrong about this, you are wrong about that and you are also wrong about this other thing.'' And the gentleman answers, "But how can that be? I read the document.'' And the answer he is given is, "Well, the problem is that you did not read the 300 pages that were incorporated by reference in your contract.'' You have to think of a citizen who is dealing with legal action, who has to defend himself and so has to spend a lot of money on legal fees when it could often be avoided.

Consequently I would like us to incorporate more guidelines and a better explanation about what we mean by "impossible.'' That was my first comment.

I'd have another comment. On page 4, in the second paragraph, one reads the following sentence:

. . .that regulation-making authorities shall ensure that incorporated material is accessible. . .

What obligations does that wording confer? Of course it is excellent to raise the question of what is accessible. And here as well, images come to mind. It is as though we were being told, "Go into the warehouse, the document is there somewhere. Don't disturb me, I'm busy, I'm going on break.'' That is what this suggests, but that is not what we want. We want the word "accessible'' to really mean something.

This is an excerpt from page 5:

Furthermore, the Joint Committee would like to emphasize that the defence provided for under section 18.6, against being found guilty of an offence if it was later determined that an incorporated document was not accessible is not a substitute. . .

That is an important point because it could be grounds for a defence. Someone could say, "You did not make it accessible, so how could I have complied with it?''

I would like this part to be expanded so that that aspect comes out clearly in the distinction, and that it be made clear that this does not resolve the accessibility issue. For our part, we want to avoid that a citizen who is in good faith, does not want to breach regulations and would like to comply with them can do so, and not simply be told that he will not be found guilty of an offence, after being charged or subjected to a trial.

We have to make the drafters understand that these are two totally distinct concepts. Most Canadian citizens want to comply with the law and regulations; we don't want them to have committed an offence and then be told that they should not worry, and that if they have committed an offence, they will not be found guilty. There would not be any consequences, but the individual would nevertheless have to go through the whole legal process.

Ms. Borkowski-Parent: Regarding your second point about the defence in the case of a document that was not accessible, we've noticed that the various regulation-making authorities make this kind of argument more and more frequently, whether it concerns incorporation by reference or other issues such as subjective or vague language in the regulations.

The response that is more and more frequently given to the committee is that the courts will determine the meaning of the word or expression that is vague or subjective. The committee has always maintained, however, that citizens should be able to determine the extent of their rights or obligations without having to go before the courts, because of the costs, the resources and the time involved. Citizens should be able to read the law and the regulations and act accordingly.

Senator Gold: I'd like to go back to your first point. I see a noticeable difference between the French version and the English version, because the French version uses the word "impossible,'' whereas the English version refers to something "impracticable.'' The two concepts are not identical, there is a discrepancy. I am not a translation expert, far from it, but that is what I think.

Ms. Borkowski-Parent: I understand what you are saying. In fact, I also asked myself that question, though the term "impracticable'' is generally rendered with the term "impossible'' in French. Perhaps we could reword the text so as to avoid that term.

Senator Gold: I simply want to add a few words to the argument that there is a difference between an absolute impossibility and a relative impossibility. The word "impractical'' in English is closer to the term "relative'' in French than to "absolute.'' I don't know what meaning you want to convey, but I think the idea was mostly to restrict —

Mr. Di Iorio: It would be more appropriate to talk about a relative impossibility, because I can't imagine anyone having to prove an absolute impossibility. A relative impossibility would indicate a series of constraints pointing to the fact the situation was difficult to manage. The term "impractical'' can also mean that something is "not practical'' in French, but it is stronger than the expression "not practical.''

Your comment was very judicious and appropriate, because it raised the issue; however, this is a case where the English version would help us to understand the meaning of the French version, because the word "impossible'' can have two meanings.

[English]

Mr. Oliver: On a different topic, I would like a clarification on accessibility and cost. I'm just confirming that where the Office of the Attorney General felt that if the costs were reasonable, it remained accessible. Our recommendation is that it should be free of charge. This is a committee decision on that point, right? There's no other overarching legislation or rules; it's a committee view of whether cost is reasonable?

Then I was looking at the American language around "free of charge'' and our recommendation 3, and we add something else to it. We add the last clause "including all former versions of the incorporated material.'' Does that impose a great burden on the drafters of a regulation that not only is the cited incorporated material to be free of charge but also all the former versions of the incorporated materials?

Can you help me understand what the consequence of that added clause is compared to, say, the U.S. where they don't have that?

Ms. Borkowski-Parent: That last part of recommendation number 3 is to address the problem of temporal application. So if you have ambulatory incorporation by reference —

Mr. Oliver: Could you help me understand "ambulatory''?

Ms. Borkowski-Parent: Ambulatory incorporation by reference is when you incorporate a document and all its subsequent changes, whereas static incorporation by reference is when you incorporate the version of a document at a specific date.

When you have ambulatory incorporation by reference, the problem with temporal application is that it becomes hard for a citizen to know which version of that standard or document applies to him at a specific period of time. Also, if that document is going to change, it requires that a person acquire those documents every time they are changed. So that cost issue is compounded when you look at ambulatory incorporation by reference.

Mr. Oliver: So would recommendation 3 be stronger — rather than that all-encompassing clause at the end referring to all former versions, whether static or ambulatory — if it were narrowed to refer to ambulatory inclusions, or do you think it's understood?

Ms. Borkowski-Parent: I think it is understood, because in the case of a static incorporation by reference, the citizen knows exactly what version of the —

Mr. Oliver: Because it's cited by date and time?

Ms. Borkowski-Parent: Yes, so there's no ambiguity.

Mr. Di Iorio: In the case of ambulatory, the document incorporates all the changes, but it is up-to-date. Everything before it has been collapsed, so you don't really know at what point what was changed.

Mr. Oliver: I got it.

Mr. Di Iorio: But that explains why —

Mr. Oliver: It's self-evident.

Just so you know, my background is health care, so "ambulatory'' means something very different.

[Translation]

Mr. Genuis: I would like to follow up on the arguments put forward by Mr. Di Iorio and Senator Gold. I agree that there is an issue with regard to the difference between the two languages; I propose that we change the word and replace it with the expression "impossibilité relative.''

I can move the change, and we could adopt it for the text.

Mr. Dusseault: I was going to propose another wording, using the term "pratiquement impossible.'' I don't know which of the two terms would be most precise, but it seems to me that a formulation using the term "pratiquement impossible'' could be a good wording. Otherwise, we could also use the following wording: "impossible de façon pratique.''

[English]

The Joint Chair (Senator Merchant): Are you happy with that, Mr. Di Iorio?

[Translation]

Mr. Di Iorio: I will let our counsel do a few final verifications in this regard.

Ms. Borkowski-Parent: I like the wording using "pratiquement impossible.''

Mr. Di Iorio: There's a nuance; "pratiquement impossible'' does not mean the same thing as the term "impractical'' in English. The expression "pratiquement impossible'' means "presque impossible.'. This brings us back to the beginning, and to whether we want to say that something is almost impossible in a relative way or almost impossible in an absolute way.

I don't have the answer, but I know that this was raised before, and perhaps some research needs to be done to find a solution to the problem.

Ms. Borkowski-Parent: I might also suggest another wording.

[English]

And it would be to use "last resort'' or a "solution de dernier recours.''

Mr. Di Iorio: They're going to have a "dernier recours'' very quickly.

[Translation]

Mr. Dusseault: If we had wanted to say "presque impossible,'' we would have said "presque impossible'', whereas if we use the word "pratiquement,'' that will include the notion of that which is practical, and of the possibility, the practicability, of obtaining it.

Mr. Di Iorio: But the expression "pratiquement impossible'' does not mean "impractical'' in English. We would have to redo the English version, so we are going around in circles.

Mr. Dusseault: I consider them almost synonymous, but I suppose that could be interpreted differently.

[English]

Mr. Genuis: It seems like we can resolve this if we just say "relatively impossible.'' Does that clear it up?

[Translation]

Mr. Di Iorio: "Relativement impossible,'' yes.

[English]

Mr. Genuis: Because it means that it's maybe not theoretically impossible, but it's impractical or practically not attainable. Can I propose that wording?

Mr. Di Iorio: I think it would be good. Another way would be to use "Impossible, toutes choses considérées.''

Then you would be considering the context. That's what it basically means — impossible. But yours is good too.

The Joint Chair (Senator Merchant): I'm not sure which version we've agreed on.

[Translation]

Mr. Dusseault: I think that is a good compromise. We would also have to amend the English version so that it says "relatively impossible,'' and the French version would say: "relativement impossible.''

[English]

The Joint Chair (Senator Merchant): We're not agreed yet.

Mr. Genuis: I don't see why we would change the English version. We're trying to come up with wording in the French version that is as close to the English sense of "impractical,'' which is what we want to convey. If we leave the English version unchanged, at least the French version can be read in light of the English version to better understand the sense that we are aiming at, as Mr. Di Iorio pointed out. So I don't know why we would adjust the English wording when the sense of the English word is exactly what we're going for.

Shawn Abel, Counsel to the Committee: I might be of some assistance. I would suggest the goal here is for the committee to express the concept as well as it likes, but it won't necessarily be indicating the wording that would be introduced in legislation. That's something that could be and would have to be handled at the point of drafting, and legislative drafters would be involved in finding the exact equivalents.

I think the focus should be that the committee finds wording that it's comfortable to express conceptually. As long as the committee gets that far, that would probably be sufficient.

Mr. Di Iorio: I'm comfortable with Mr. Genuis' suggestion.

The Joint Chair (Senator Merchant): Is everyone in agreement?

[Translation]

Mr. Genuis: You would eliminate the French only.

Mr. Di Iorio: Yes.

[English]

The Joint Chair (Senator Merchant): Okay.

The Joint Chair (Mr. Albrecht): That was practically impossible to get through.

Ms. Borkowski-Parent: So the report can go ahead with that one modification?

The Joint Chair (Senator Merchant): Are we in agreement that the report goes ahead with that one modification?

Hon. Members: Agreed.

Mr. Genuis: I believe we should adopt a separate motion asking the government to respond in a sufficient period of time. Is that normal for other committees as well?

Ms. Borkowski-Parent: It is the second to last paragraph of the report.

Mr. Genuis: If that's sufficient, that's great. Normally, what I've seen in committee is that's adopted as a separate motion, but if that's sufficient for that to be in the report, then great.

[Translation]

MARGINAL NOTES—CONSIDERATION OF A DRAFT REPORT

(For text of documents, see Appendix D, p. 16D:1.)

Ms. Borkowski-Parent: At the February 2 meeting, the members had requested a draft report on marginal notes, to be studied a month later. The report cites the main authoritative works of doctrine on this matter, that is to say the works written by authors Pierre-André Côté, Ruth Sullivan and Paul Salembier.

Moreover, the members had asked that another letter be sent to the Minister of Justice in order to obtain clarifications on the solutions being considered by the department, as well as more detailed explanations on their position. The reply from the department arrived yesterday afternoon and was given to us this morning, and you should have a copy of it. The explanations provided are keeping with what was provided previously; there are no new explanations. Nevertheless, the draft report is before you this morning for discussion, as agreed.

[English]

The Joint Chair (Senator Merchant): Discussion?

Mr. Oliver: While I agree that the answers are the same that we got in the first one and we're reporting back, the minister does say in the second paragraph:

Officials in my Department are currently in the process of reviewing options and preparing recommendations. I assure the Committee that the concerns raised are being taken very seriously and a solution is being diligently pursued. As soon as I am in a position to communicate a decision to the Committee, I will do so.

My sense was that although there was a bit of argument between the groups on positioning versus the legality of marginal notes, it does seem they're aware of the issue and are trying to address it. I thought maybe we want to give him a bit more time to get back on that.

Mr. El-Khoury: Is there a timetable we have to give them in order to receive something or is it open-ended?

The Joint Chair (Senator Merchant): Is there a timeline?

Ms. Borkowski-Parent: Not that I can see, no.

The Joint Chair (Senator Merchant): What do you think would be appropriate?

Mr. El-Khoury: We have to give them a date. We have to precisely fix a date.

The Joint Chair (Senator Merchant): Do you want to make a comment, counsel?

Ms. Borkowski-Parent: As part of the report's recommendations, there would be a government response to be tabled within 120 days. The fact that they're working on the issue does not preclude the committee from bringing that issue to the attention of both houses. The department would then have 120 days to provide their answer to the report.

Mr. El-Khoury: According to the law, they have 120 days?

Ms. Borkowski-Parent: According to the standing orders.

Mr. El-Khoury: After that, if we don't receive an answer, we can act?

Ms. Borkowski-Parent: Yes. In this instance, there's nothing to disallow. It's a matter that applies to all regulations, so it's not like there would be a specific provision to disallow. Tabling a report is the only other option to raise that issue with both houses and maybe accelerate resolution of that matter.

The Joint Chair (Mr. Albrecht): We have the draft report before us. Counsel has indicated that the letter in response was only received yesterday. We wrote to them close to February 1, so they have had over a month to reply. My suggestion would be to proceed with the draft report, and if there are changes to be made, they will be made in the eventual legislation. I think we'd be wasting a lot of time if we give them another two months. That's my position.

Mr. Genuis: Sorry, maybe I'm missing something. I went through this report, but what page are the recommendations on?

Ms. Borkowski-Parent: They're not as specifically labelled as with the other report.

There are a few avenues to correct this, including amending the Interpretation Act to make the status of marginal notes equivalent to that of headings. It could be as simple as adopting a legend or some kind of visual descriptor to indicate that something is a marginal note instead of a heading.

I don't see one solution being better than the other. They can figure that one out, but it's really raising the awareness on the issue of that new format in the consolidated statutes and regulations.

Mr. Genuis: So this is why you thought it would be more effective to explain the issue and discuss options rather than carve out specific recommendations.

Ms. Borkowski-Parent: Correct.

Mr. Genuis: I would also concur with the point that tabling this report isn't an expression of extreme disgust with the department but is simply a way of bringing the attention of an ongoing issue to the house and requiring a government response to be tabled in the house and in the Senate as opposed to simply being sent back to the committee.

I think it's an appropriate but still relatively modest escalation under the circumstances.

Mr. Di Iorio: We're on the point of the suggestion by the chair that we proceed with the report anyway and then, ultimately, at the last moment, make final change?

The Joint Chair (Mr. Albrecht): My statement was not made as joint chair but as a member of the committee.

Mr. Di Iorio: I agree; we could do it with the report. It will be done, and then we'll just wait for the outcome and make the final adjustments. But at least we'll be comfortable with the content of the report.

The Joint Chair (Mr. Albrecht): To follow up on my point, the very last paragraph of the letter that we received this morning states:

Nonetheless, as mentioned in my letter of December 15, 2016, I recognize the value of eliminating doubt or confusion, and I remain committed to identifying and implementing a course of action that will clarify the status of the notes in question in an open and transparent manner.

I think the report indicates what we expect are some of the options for that open and transparent manner. Now it's up to them to move ahead with it. My position is that waiting for another month or two for another letter is simply prolonging the process, so let's move ahead.

Mr. Oliver: Again, I would take the contrary view. I don't know how long this has been before us as a committee, the particular change in how the marginal notes were incorporated. I've seen many other files take many years before we're at the point of generating a report and tying up government with this. In the letter that we just received, the department twice says that they are committed to addressing the issues and taking action, so it doesn't seem like we've hit an impasse. They're simply still processing it and trying to understand it, and there's ongoing debate.

So I'm wondering whether a solution might be that our draft report be sent back saying, "Here's what the committee is thinking of submitting to government to deal with the issue.'' It might help to clarify where we're apart. But it goes back to the department, and we give them 60 days to respond. That way we know there's very clear communication between us and the department. Is that another solution?

Ms. Borkowski-Parent: It would be a breach of parliamentary privilege to share a draft report. The committee's position has been clearly put forth, supported with ample authors and case law.

Mr. Oliver: How long have we been on this with them?

Ms. Borkowski-Parent: The change happened in January of last year. Unlike other files that are regulation-specific, this one applies to all regulations. Really, the issue is how the new format is a little misleading because, as you can see in Appendix 1 —

Mr. Oliver: Yes, it was very clear. That example is a really good one that you put in. You can't tell what is a heading and what is a marginal note. I totally agree.

Ms. Borkowski-Parent: I realize that in comparison to 30-year-old files this one is fairly new. That being said, it can have wide repercussions because of the new format.

Mr. Oliver: If you had received this letter before you started drafting our report, would you still have drafted the report assuming we were at an impasse?

Ms. Borkowski-Parent: Yes. The report was asked for by the committee. The arguments presented in the letter are identical to what had been previously stated. So no, I wouldn't change the report based on that response.

Mr. Genuis: I have further comments on why I think it's important for us to move forward with this report.

It's true, Mr. Oliver, that we have files that have been outstanding for years, but I think the position of all of us here is that that's not going to be acceptable anymore and that we are going to insist on a more timely response so that we don't have important files languishing for years, even decades. I don't know that we want to then say, "Well, because this isn't as bad as some files, our approach is going to be different.''

I take the point that we're talking about something that's very broad in scope. This doesn't just deal with one regulation. It deals with the way in which regulations are posted in general.

With respect to tabling a report in general, the term was used "tying up government'' with this. It's relatively rare for this committee to table reports, but it's very common for committees of the House of Commons and Senate to table reports and to use that as an opportunity to provoke discussion on a wide range of issues.

I wouldn't consider disallowance. Obviously, we can't use disallowance in this case because we're talking about everything, but disallowance is that uncommon, particularly aggressive response that the committee has available to it. Tabling a report is merely bringing a matter of ongoing discussion to the attention of both houses.

Even if we were fully satisfied by the direction and timeline of the government, I would still say that this is an issue of such consequential importance that it should be seen and dealt with in a wider forum, not just by this committee. We're talking about the understandability and the legality of the way in which all regulations across government are posted. I think that's consequential enough that it merits the tabling of a report in any event, but particularly given that we're not hearing either a timeline or a specific resolution plan coming from the department. That's my view.

Mr. Motz: As indicated, the issue of the impact that this has on the application of many regulations across the board speaks to the need for the timeliness of a response and resolution to, in my opinion, save the potential of litigation and misunderstanding and lack of clarity down the road. When I read regulations in my career, it was like, if it's in the main context, it's "part of.'' It's the annotations in the Criminal Code. It's a different process. So I think the timing and clarity require a response that's not in line with some of the things that I've heard in the committee over the length of time it takes to respond. I think this needs a more timely response.

The Joint Chair (Senator Merchant): Any other comments?

Mr. Di Iorio: At this point, we're here and we read the material. We can decide after on the mechanics. At least we can get to see if we agree with the content of the report. We have it fresh in our minds, and we can do it now.

I was just wondering if there are folks here who have ideas about solutions, because I have always had one in mind. I don't know if this is the appropriate time to express it, but I would direct you to Appendix 1 and Appendix 2 of the report, which are very useful by the way.

Mr. Oliver: Extremely useful.

Mr. Di Iorio: When you see that, you really see the visual impact and then the intellectual consequence for the reader of the document, as you just pointed out, Mr. Motz. Could we imagine having Appendix 1 and putting the title in brackets, with a rule that says that, at the beginning of every regulation, the brackets have to be posted with an asterisk as to their meaning, why they are there, and it could become standard in every regulation? Therefore, it would be there, but people would see them in brackets so that they would know that there's a reason why there are in brackets.

Ms. Borkowski-Parent: That goes to the point of having a legend or visual indicator to distinguish marginal notes from headings.

One of the reasons that very detailed recommendations were not provided, the reason that, from what we understand, the change happened in the first place, is to provide for greater accessibility for people who might have disabilities and use alternate ways of reading the regulations.

Mr. Di Iorio: Or who are older than 30.

Ms. Borkowski-Parent: Technically, I cannot say whether brackets would be feasible or not or if the easier solution is to amend the Interpretation Act. That's why the recommendations, in and of themselves, were open-ended, but for the department to find a way to clarify the status of marginal notes in a way that meets their accessibility requirements. So it can be suggested, but it goes to one of the recommendations to have a visual indicator that would distinguish marginal notes from headings.

The Joint Chair (Mr. Albrecht): As a layperson, not a lawyer, the Appendix 2 outline, with the marginal notes there, is much more legible, readable. It's more clear in my mind as a non-legal person.

Mr. Di Iorio: The size of the font is an issue.

The Joint Chair (Senator Merchant): Which way should we go? Could we have a motion to proceed one way or the other, please?

Mr. Genuis: I think it reflects the consensus that we move to adopt this report.

Mr. Oliver: I think that was the consensus of the discussion. I'm of the opposing view, but I think that was the discussion.

The Joint Chair (Senator Merchant): All those in agreement?

Hon. Members: Agreed.

Mr. Di Iorio: Perhaps we can take this time to inform Senator Gold that when you're new to the committee, you have to handle the scrum outside.

Senator Gold: Be careful what you ask for.

Mr. Di Iorio: You might want to speak with your communications director before you step out of the room.

Senator Gold: If I had one, I surely would.

The Joint Chair (Senator Merchant): In English and in French. It was nice to have you here, senator.

Senator Gold: Thank you.

(The committee adjourned.)