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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 18 - Evidence - April 13, 2017

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OTTAWA, Thursday, April 13, 2017

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. for the review of statutory instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Albrecht): Welcome to this meeting. We'll go directly to deal with Item No. 2 on our agenda.

SOR/86-1004 — ATLANTIC PILOTAGE AUTHORITY NON-COMPULSORY AREA REGULATIONS

(For text of documents, see Appendix A, p. 18A:1.)

Evelyne Borkowski-Parent, General Counsel to the Committee: The last time the file was before the committee, members were made aware that the Atlantic Pilotage Authority intended to repeal the regulations, instead of making the amendments to address the 13 points raised as no pilotage services were being offered under the regulations.

A meeting of the pilots to approve the repeal was scheduled for June, and counsel was asked to monitor the file. It seems that the June meeting of the pilots did not yield the expected results, as the authority now intends to repeal the regulations only once the two remaining licensed pilots retire.

This is far from progress. First, this additional delay is based on the authority's reluctance to repeal the regulations for fear of giving the impression of opening the field to private pilots. As the market is already open to private pilots in non-compulsory areas, it seems rather tenuous reasoning to keep an obsolete regulation on the statute book.

Furthermore, it is suggested that if the authority intends on keeping the regulations indefinitely, it should be resuming its work on addressing the questions raised by the committee.

The Joint Chair (Mr. Albrecht): Any response from members? Can we send a letter requesting that these regulations be repealed by a certain date? Are there other suggestions as to how we can handle this?

Ms. Borkowski-Parent: Or, if they do not repeal in the near future, they should make the amendments that were requested some years ago.

The Joint Chair (Mr. Albrecht): It is moved by Mr. Motz. All in agreement with that, raise your hand?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Opposed? Carried.

An Hon. Member: Have we set a time?

Ms. Borkowski-Parent: Usually the committee has taken the position that making amendments that have been requested by the committee should be made within a period of two years. That's for amendments. Repeals would be faster, but at the latest two years, yes.

The Joint Chair (Mr. Albrecht): So the entire file dealt with within two years.

The Joint Chair (Senator Day): One way or another.

SOR/2011-99 — REGISTERED PRODUCTS REGULATIONS

(For text of documents, see Appendix B, p. 18B:1.)

Ms. Borkowski-Parent: These regulations define the type of registered products covered by the requirement to disclose fees and specify the manner in which disclosure must be made.

There were four points raised in the initial letter in 2012. First, section 2 of the regulations requires that an institution not communicate information in a manner that would be misleading. The regulation's enabling statutes already contain a similar provision. In light of that, section 2 is, at the very least, redundant and, at most, can lead to confusion.

Then there's the issue of what "providing a number of the person knowing the details of the product'' set out in subsection 2(4) means and the vague requirement of "providing documents without delay'' in subsection 2(5).

Lastly, there's an inaccuracy in one of the marginal notes that needs to be corrected.

As was the case for other Department of Finance files presented to you at the last meeting, the department's latest response only indicates that the language discrepancy in the marginal note will be amended at the next available opportunity.

As for the more substantive questions, the department's response only indicates that it periodically reviews financial statutes and that it would take the committee's concerns into consideration at that time.

Based on the committee's remarks on similar files with the same department examined at the last meeting, counsel could write back indicating that these types of responses are considered unacceptable by the committee and asking for a firm commitment and timeline.

The Joint Chair (Mr. Albrecht): Mr. Diotte, are you prepared to make a motion to that effect?

Mr. Diotte: So moved.

The Joint Chair (Mr. Albrecht): All in favour? Opposed? Carried.

SOR/2014-295 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS

(For text of documents, see Appendix C, p. 18C:1.)

Shawn Abel, Counsel to the Committee: Six issues were raised concerning this instrument in April 2015. There was some difficulty obtaining a response from the Department of Justice, resulting in a letter from the joint chairs to the minister, which resulted in a substantive response then being provided.

The Contraventions Regulations designate offences that are set out in federal statutes or regulations and provide that persons who committed designated offences may be fined by way of a simplified procedure and for an amount set out in the regulations in lieu of being prosecuted. The amendments made by this instrument deal with offences found in the Canadian Environmental Protection Act, 1999, or regulations made under that act.

On points 1 and 4 of the correspondence, the department's reply may be considered satisfactory. It appears that the Contraventions Act precluded setting fines as low as was done in the cases here. However, the department identified a provision of the Canadian Environmental Protection Act which overrides the Contraventions Act in that respect, meaning there is no minimum bound to a fine in those cases.

Points 2 and 3 raised concerns in connection with designated provisions that have since been repealed. The designated provisions in these regulations are therefore also planned to be repealed. The department states that this would be done in due course.

On point 5, it was noted that two separate designations had been set out for the contravention of a single provision which requires the owner or operator of a PCB storage site to develop and implement a fire protection and emergency procedures plan. Since it would seem difficult to implement a plan without first having developed it, the regulations would seem to allow a person to be fined twice for the contravention of a single obligation. The Contraventions Act authorizes the making of regulations designating as a contravention an offence created by any enactment. This authority does not, however, extend to effectively creating two offences by multiplying the designations possible.

The department has agreed to address this matter with a forthcoming amendment.

Finally, a drafting issue raised under point 6 would also be addressed. If members are satisfied with that, a letter could be drafted seeking a time frame for the making of the promised amendments.

The Joint Chair (Mr. Albrecht): Do committee members agree to seeking a time frame, or do we want to establish one? I think that's the question. It has been dragging on for a while and a lot of no responses.

Mr. Badawey: Yes, I put a motion forward that we thank them for a response, and we actually put a timeline attached to it.

The Joint Chair (Mr. Albrecht): Would you care to indicate the timeline?

Mr. Badawey: A good question. What does legal counsel think? Two months or three months?

Mr. Abel: The regulatory process, quite unfortunately and often to the committee's chagrin, is a little slower than the process for returning responses. Given that the amendments were just promised, I would suggest a little leniency.

It's spring 2017 now. Perhaps the committee would like to accept the end of the year or spring 2018.

Mr. Badawey: The end of the year is fine.

The Joint Chair (Mr. Albrecht): The end of the year. Are we all agreed with that?

Hon. Members: Agreed.

SOR/2015-164 — POLICY COMMITTEES, WORK PLACE COMMITTEES AND HEALTH AND SAFETY REPRESENTATIVES REGULATIONS

(For text of documents, see Appendix D, p. 18D:1.)

Mr. Abel: Twelve issues were raised concerning these regulations and amendments are promised to address eight of those points. The agreed-to amendments relate to drafting concerns, provisions that are in need of clarification, and one provision that appears to have strayed beyond the enabling authority provided in the Canada Labour Code.

This leaves four other concerns, as discussed in detail in the note.

As this is the first time these regulations are before the committee, I ask for a bit of patience to cover these matters in some detail.

Under point 5 in the note, subsection 9(3) requires an employer to post a copy of an annual report after the chairperson of a workplace committee has submitted it to the minister. When it was asked how an employer is guaranteed to have a copy of the report available to it, the department suggested that the regulations require that members of the committee must be those with managerial duties. This is said to imply that the chairperson would be considered an employer member of the committee.

This interpretation is at odds, however, with subsection 8(2) of the regulations, which explicitly requires the chairperson to provide certain documents to the employer. These would be other documents, in this case.

Subsection 8(2) seems to suggest that the chairperson and the employer are not the same person, and that the employer will not necessarily have access to all documents in the care of the chairperson. An amendment clarifying this issue, therefore, seems warranted.

Under point 6, there is questionable authority for section 13, which requires that a health and safety representative who is selected by employee vote must be replaced within 30 days if a vacancy occurs during the term of that representative. The Labour Code itself provides that an employer must carry out the functions of the health and safety representative until such a person is selected, but the code does not impose a timeline for doing that selection.

The only potential authority for the making of section 13 lies in the general power under paragraph 157(1)(b) of the code to make regulations respecting such other matters or things as are necessary to carry out the provisions of the code. However, courts are generally reluctant to accord significant power to these catch-all or basket-style enabling provisions. The committee has always taken the view that specific rights or obligations set out by way of subordinate legislation must be clearly authorized.

In this case, even if the general authority found in that provision of the code applies, section 13 of the regulations can only be authorized if it can be said to be necessary to carrying out the provisions of the code. The department contends that section 13 is authorized, in part not because it carries out the provisions of the code but rather because it corrects what is viewed as an oversight in the code.

In the department's view, an employer is only required by the code to fulfil the functions of a health and safety representative prior to the selection of that representative. Nothing in the department's view requires the employer to do the same in the event of a vacancy in the term. Correcting perceived gaps in the application of the statute, however, seems on its face to stray well beyond even a general enabling power found in the code.

More particularly, with respect to the 30-day timeline imposed by section 13, the department suggests that it serves to prevent an indefinite postponement of a new selection, which ensures that the purpose of the regulations is not compromised. Even if this were to be accepted, however, this does not explain why a 30-day timeline is necessary. If it were necessary, or some timeline were necessary, one might presume the code would say something about it.

The department also seeks to make a comparison to section 6 of the regulations, which sets out a 60-day deadline for the replacement of workplace or policy committee members. The imposition of this deadline, however, is more clearly authorized by the code, which provides extensive and detailed powers to make regulations concerning the terms of office and methods of selecting members of those committees and their rules of procedure. The enabling power concerning health and safety representatives is quite bare by comparison, and provisions dealing with workplace or policy committees therefore seem of little relevance.

Overall, in the absence of some compelling reason to the contrary, it still appears that section 13 is not authorized.

Turning now to point 11, the schedule to the regulations sets out instructions of what must be included in a workplace committee's annual report. According to the schedule, the report must include the number of existing and potential hazards with respect to materials, processes or equipment identified by a committee under certain provisions of the code. The wording in these provisions does not seem to suggest that a committee would itself carry out the role of identifying and monitoring such hazards.

The department suggests that identifying and monitoring the specific hazards listed is implicit in their obligations under the code, which are to inspect a workplace, and more importantly notes that subsection 135(8) of the code empowers a committee to request from an employer information relating to hazardous materials, processes and equipment. This latter reference seems to clearly indicate that a committee is expected to identify and monitor those various things, which would seem to be satisfactory.

Finally, under point 12, the instructions in the schedule also require a committee to include in its annual report a number of disabling or minor injuries as defined in the Canada Occupational Health and Safety Regulations, but those regulations only require the information to be provided by an employer to the committee.

The relevant enabling provision for the schedule to the regulations permits the making of regulations required by a committee to submit an annual report of its activities. If a schedule merely requires a workplace committee to accept the information provided by an employer and then forward it to the minister, it's hard to say that this would represent activities performed by the committee.

The department suggests that a workplace committee may do some organizing and recategorizing of numbers, and notes that the committee may also assist the employer in identifying those injuries, but these latter activities are not mentioned in the schedule nor in what must be included in the report. Perhaps they should be. Currently, the injuries portion of the schedule does not seem to require much reporting in the way of actual activities carried out by the committee.

In sum, it is suggested that the department's response on one matter may be satisfactory but unsatisfactory on three other points. If members are in agreement with what's in the note, a further letter could be drafted following up on those points along those lines, as well as seeking a time frame for making the amendments that were already promised.

The Joint Chair (Mr. Albrecht): It seems reasonable. Any questions or discussion? Is someone prepared to move the action recommended by counsel?

Mr. Diotte: So moved.

The Joint Chair (Mr. Albrecht): Any discussion? All in favour raise your hand.

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Carried.

I now want to turn the chair over to Senator Day.

The Joint Chair (Senator Day): Thank you, Mr. Chairman. You'll have to bear with me as I work my way through this. We're under the heading "Part Action Promised,'' Item No. 6.

[Translation]

SOR/2015-239 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

(For text of documents, see Appendix E, p. 18E:1.)

Ms. Borkowski-Parent: Two types of points are raised in the initial letter. First, On the one hand, the terminology used in subparagraph 20(1)e)i) is different from that elsewhere in the regulations. According to the principle of interpretation whereby different terms have different meanings, we asked the CRCT the reason for the distinction. The CRTC confirmed that the distinction was neither intended nor necessary, and that the regulations would be amended accordingly.

Secondly, a number of explanations seemed vague, in particular with regard to programming that is religious, that presents a single point of view or a limited point of view. Since these terms are not defined, their meaning is therefore left to the discretion of the administration.

As to the difference between programming that presents a single point of view or a limited point of view, the CRTC stated that the distinction is of no consequence for the application of the regulations, and that amendments would also be made accordingly.

That leaves the meaning of "programming that is religious.'' The CRTC stated that the religious nature of any proposed service will be evident when the application is made. Moreover, to clarify the meaning of the phrase, the CRTC relies on a non-binding administrative document, and on Broadcasting Decision CRTC 2015-207.

It must be noted that if the religious nature were so obvious, there would be no need for either the administrative policy or the decision. The committee has always been of the opinion that a statutory instrument that is made in accordance with a delegated authority must be clear enough so that a person concerned does not have to spend time and resources to clarify the meaning of statutory rules. This point could therefore be raised again with the CRTC.

[English]

The Joint Chair (Senator Day): Do any of you have any comments? Shall we follow up?

Mr. Badawey: Yes, but I think we should also put a timeline to it.

The Joint Chair (Senator Day): What's your suggestion in relation to a timeline?

Ms. Borkowski-Parent: The CRTC is currently reviewing its regulations. I think the consultation period is ongoing.

Mr. Badawey: How about year-end?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Senator Day): Year-end seems to be the preferred timeline for today. That's this year, 2017.

[Translation]

SOR/2016-128 — REGULATIONS AMENDING THE MACKENZIE VALLEY LAND USE REGULATIONS

(For text of documents, see Appendix F, p. 18F:1.)

Ms. Borkowski-Parent: Changes were made in order for the French version to better reflect the intent expressed in the English version. Unfortunately, SOR/2016-128 reverted back to the old terminology and the department intends to correct this error though a regulatory amendment.

That leaves the issue of box 18 on the form provided in Schedule 2. It should be noted that a form is a graphic representation of the rules set out in the regulations. Everything on the form must therefore be based on the rules set out in the regulations themselves.

In this case, box 18 on the form indicates the formula used to calculate the application fees for a permit. Box 18 says that, for calculation purposes, the applicant must indicate the number of hectares in excess of two hectares, rounded up to the next whole hectare. The problem is the rounding up to the next whole hectare. This is a basic rule for calculating fees that should be rooted in section 19. The department had originally agreed to remove the reference to rounding up in box 18, but then it came back with other explanations which, while useful, do not entirely resolve the matter.

The best parallel that can be drawn is in paragraph 19(4) which provides that, for the purposes of calculating the fees, the surface area of certain line or certain trails is deemed to be 10 meters. It could be suggested to the department that a similar provision for approximating the surface area indicated in the permit application could also be included in section 19.

[English]

The Joint Chair (Senator Day): So the department hasn't gone as far as we'd like but they've moved somewhat. What's your pleasure?

Mr. Badawey: When you look on page 2 and we see the sections, for lack of a better word, would you say that an added clause would be appropriate?

Ms. Borkowski-Parent: In the form, you mean?

Mr. Badawey: Right.

Ms. Borkowski-Parent: Unfortunately, that's the form. An added subsection to section 19 is what is required.

Mr. Badawey: And they're working on that. Would it be appropriate if we actually recommended it?

Ms. Borkowski-Parent: Right now, they haven't agreed to address section 18. They provided further response and further explanation that weren't exactly to the point, so I would suggest we could follow up and make a recommendation to add a subsection in section 19.

Mr. Badawey: Just to get them on point, to actually give them a recommendation of how that clause should read?

Ms. Borkowski-Parent: We can give an indication. The ultimate drafting belongs to them and legislative drafters.

Mr. Badawey: I would move that, Mr. Chair.

The Joint Chair (Senator Day): It is moved by Mr. Badawey that we follow the course of action, as discussed between counsel and Mr. Badawey. All those in favour?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Contrary minded, if any? Carried.

SOR/96-188 — INTEREST AND ADMINISTRATIVE CHARGES REGULATIONS

(For text of documents, see Appendix G, p. 18G:1.)

The Joint Chair (Senator Day): We'll go on to a new category. We moving from "Part Action Taken'' to "Progress.'' This sounds like a fun one.

Mr. Abel: Thank you, Mr. Chair. I assure you of the stuff we deal with it is not a fun one, but amendments that would address five matters related to these regulations were agreed to last year. These would correct drafting errors or provide clarifications to certain provisions. The department reports that it would be feasible to have the amendments made by March 2018. If members find this acceptable, counsel could continue to monitor the file and follow up in the normal fashion.

Senator Runciman: So moved.

The Joint Chair (Senator Day): It is moved by Senator Runciman that we follow the recommendation of counsel. All those in favour?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Contrary minded, if any? Motion carried unanimously.

SOR/2002-241 — RULES OF PROCEDURE FOR HEARINGS BEFORE THE MILITARY POLICE COMPLAINTS COMMISSION

(For text of documents, see Appendix H, p. 18H:1.)

The Joint Chair (Senator Day): We are still under the heading "Progress.''

Mr. Abel: For a number of years on this file, the commission has been in the process of developing new rules of procedure that would address all the committee's concerns raised on this file.

Draft rules in both languages have now been provided, which indicate that all matters will be resolved, and one new discrepancy in the draft rules was brought to the commission's attention.

The latest response does not indicate when the new rules are expected to be made. As members can see, there have been considerable delays throughout the commission's process up to this point. Many previously given time frames have been missed. However, that has to deal with the drafting process, and not necessarily the final enactment process. An expected time frame for making the new rules could be sought at this time.

The Joint Chair (Senator Day): You're indicating here, before the committee, June 2008, 2009, and 2010.

[Translation]

Mr. Dusseault: Although you do not seem to share my satisfaction, I was surprised that they asked our opinion when they made corrections to the new regulations. They asked our opinion or will do so when they publish the enactment in Part I of the Canada Gazette.

I was wondering if it is common for departments to interact with the committee in the process of drafting regulations and in the public consultation process following publication in Part I of the Canada Gazette. In my opinion, it would be very helpful for all departments to continue to do so, because it prevents errors that are reported by the committee later on in the process.

Ms. Borkowski-Parent: It is very rare for regulatory authorities to ask for counsel's opinion before regulations are made. They do so when the amendments are made in response to comments from the committee. There is a certain risk in starting to review everything that is published in Part I because those enactments are often subject to change after the consultation period. So it is a question of not using resources to review regulations that could be shelved.

It happens informally from time to time, especially if the regulations contain a correction that was raised by the committee. As a rule, therefore, we do not review all the regulations published in Part I of the Canada Gazette, because they are sometimes subject to major changes. That can happen, and it prevents errors in the final version.

Mr. Dusseault: They asked our opinion at the end of the process, and I saw that Mr. Abel seemed to be happy with the enactment as it was presented to us. That might be considered as a future practice for the committee, in a case where the amendment is directly related to our comments. When they make the corrections, we have to be sure that they are what we requested. I will think about it and perhaps we can make a usual practice of it, as often as possible.

The Joint Chair (Senator Day): Are there any other comments?

[English]

Mr. Badawey: No, not a question. I'll just give some direction with respect to putting, once again, a timeline on it. This has been dragging on.

I might add that when we're sending these letters out we may want to preface our comments by stating that this committee has been dealing with issues. I've been on this committee off and on for quite a while now over the course of last year. It gets pretty disheartening when you start seeing correspondence or files that go back 15, 20 or 25 years.

I think, for the most part, we're all trying to clean a lot of this up. May I request or recommend that we preface our comments in our letters, every letter being the same as a template, with the fact that it is the committee's desire to look at cleaning a lot of this up. We would hope the departments would respect that. We're trying to get things off the docket with respect to 20, 25 years; in this case, all the time they've been taking to do such a simple job.

I'll say that as a recommendation for a template, moving forward with our letters, requesting a timeline and then, of course in this case, requesting that the timeline be by the end of the year.

The Joint Chair (Senator Day): That's in the form of a motion. No further discussion?

All those in favour of the motion incorporating those suggestions?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Contrary minded, if any? Motion carried.

You will make note of that, Evelyne? The parliamentary time that is being used up on these is becoming quite considerable. We'd appreciate some action, even though you have it under "Progress.''

Ms. Borkowski-Parent: All things considered, yes.

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

(For text of documents, see Appendix I, p. 18I:1.)

Ms. Borkowski-Parent: There are two deficiencies remaining on this file. First, the amount payable for a child accompanied by a parent is listed as free, which strictly speaking cannot be said to be prescribing a fee. Furthermore, it was later found that the intent was more to require that the child be accompanied by an adult. That being the case, that requirement should be spelled out in the regulations rather than in the table setting out fees for access to the Cap- Tourmente park.

Also, that same provision required that children be accompanied by a parent and no mention is made of children accompanied by other adults. These coherence problems were to be addressed in 2005, and they have been delayed ever since.

On the department's last estimates the amendments are on track to be completed in 2017. In the meantime, the department has confirmed that the regulations were applied in a less incoherent manner, so counsel could monitor the file for the making in 2017.

Mr. Motz: We'd continue on with her proposed timeline.

The Joint Chair (Senator Day): Thank you. Any further discussion? All those in favour of that motion?

The Joint Chair (Mr. Albrecht): I just want to ask a question of counsel. They're not willing to address the incongruence between "adult'' and "parent.'' That's going to remain subjective on their part.

Ms. Borkowski-Parent: No, they will address that point. They have confirmed that in the meantime it is administered as a child accompanied by an adult.

The Joint Chair (Mr. Albrecht): I'm in agreement.

SOR/2001-532 — TELECOMMUNICATIONS APPARATUS REGULATIONS

(For text of documents, see Appendix J, p. 18J:1.)

The Joint Chair (Senator Day): We'll go on to Item No. 11 under "Progress (?)''. Look at the years this matter has been ongoing.

Mr. Abel: For quite a number of years, the committee has been of the opinion that some provisions of these regulations were not authorized by the Telecommunications Act. The department has never agreed with the committee. However, due to recent changes in the act, these regulations have now been rendered obsolete. The only question now is when they will be repealed.

The department's June 2016 letter does not provide a date for the repeal. However, the department's publicly available forward regulatory plan seems to indicate that the regulations would be repealed by way of a miscellaneous amendment regulation. Our general understanding is that a round of miscellaneous regulations from various departments should be published just after the end of this fiscal year.

If members wish counsel could monitor the situation and, if perhaps amendments on the file haven't appeared by say the end of May, send a follow-up letter to the department seeking further information.

The Joint Chair (Mr. Albrecht): For clarification, you said the end of this fiscal year. You meant the end of the one we just concluded.

Mr. Abel: Sometimes I have trouble keeping track of exactly what month that ends on, but yes. I have another six weeks at this point. I would suggest maybe waiting to see what happens.

The Joint Chair (Mr. Albrecht): I just wanted to clarify that you weren't waiting another full year.

The Joint Chair (Senator Day): Look at how many years. Are you content to follow the recommendation of counsel on this? All those in favour of that motion?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Contrary minded? Motion carried.

SOR/2010-138 — REGULATIONS PRESCRIBING CIRCUMSTANCES FOR GRANTING WAIVERS PURSUANT TO SECTION 147 OF THE ACT

(For text of documents, see Appendix K, p. 18K:1.)

Ms. Borkowski-Parent: Certain references to provincial legislation are in need of revision in those regulations, and the Department of Environment had initially advised that the amendments were expected to be made in the 2015-16 fiscal year.

The department's last letter, dated May 10 of last year, indicated that the amendments were expected to be published in the Canada Gazette, Part I, in the latter part of the 2016-17 fiscal year, which is now over. After verification, this does not seem to have been done. The Forward Regulatory Plan for Environment and Climate Change now indicates a prepublication in 2017.

The Joint Chair (Senator Day): We're watching. All those in favour?

Mr. Badawey: I'd go a step further than that. I'd send them a letter reminding them of their commitment to publish in the Gazette between 2016 and 2017 because they haven't done so yet. They missed that deadline.

The Joint Chair (Senator Day): Getting a little stronger. All those in favour of the motion?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Contrary minded, if any? Motion carried.

Mr. Badawey: The motion says "watch.'' We want them to know we're watching.

The Joint Chair (Senator Day): Yes.

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

(For text of documents, see Appendix L, p. 18L:1.)

Mr. Abel: The interim marketing authorizations issued under the regulations allow food, including with food additives, that is not in compliance with the regulations to be marketed while an amendment to the regulations is being prepared to permit its marketing.

An interim marketing authorization ceases to have effect at the latest two years after the day on which it is published. In 2012, amendments to the Food and Drugs Act replaced the authority to issue interim marketing authorizations with a broader power to issue marketing authorizations of indefinite duration. At the same time interim marketing authorizations that were in effect at that time were to be repealed within two years after their making.

In light of this, the committee sought an assurance from the department that the expiry of interim market authorizations existing at the time would not simply be disregarded. The committee has dealt in the past with a number of marketing authorizations that ceased to have effect, and the department had simply refused to enforce the regulations in which these additives were not allowed to be marketed until the regulations were amended to do so.

The department in this case replied that there was only one interim marketing authorization that had yet to be transitioned to the new regime. This authorization expired in September 2012. Health Canada has again chosen not to enforce the prohibition on the use of food additives that were previously permitted, pending anticipated amendments to the list of food additives with other generally accepted uses and the marketing authorization for food additives with other generally accepted uses.

These amendments were expected to be made in the fall of 2014, which would do away with this issue. Then that was pushed to spring 2015, then spring 2016, and now the given time frame is spring 2017.

I would simply note that in 2013 the committee decided that this practice by the Department of Health was unacceptable. Legislation in general is not subservient to the preferences of officials as to whether to enforce it and the legislative rules may not be ignored merely because an amendment to those rules is anticipated.

That is the way the matters stand at the moment. I'm in members' hands as to what they would like to do.

[Translation]

Mr. Dusseault: In my opinion, the answer we have received and that we continue to receive is completely unacceptable. They agree that something may have been added, and that that does not comply with the regulations. They are saying it is not serious and that they will not enforce the regulations in any case.

That is completely unacceptable. This is a matter on which testimony should be sought to explain why matters have been unresolved since 2012. They keep saying this is not a serious problem and that they will use their discretion not to enforce the regulations in this situation, because they do not consider it a priority. That is not an acceptable answer and we should ask for testimony.

I propose that we invite officials from Health Canada to testify in this regard to provide explanations.

The Joint Chair (Senator Day): Are you in agreement?

Hon. Members: Agreed.

[English]

The Joint Chair (Mr. Albrecht): I'm in agreement with the idea that we need to take action. I'm just wondering about using committee time on something that they had promised in the spring of 2017.

Could we say we want it done by June 21, 2017? I don't know; I agree with the sentiment that this is unacceptable. I'm just wondering about the use of committee time if they've committed to this timeline. It's still rather vague. Let's make it more precise, June 21, end of spring.

[Translation]

Mr. Dusseault: I would like to change the proposal to invite them to appear in September. If there are no amendments as promised in the spring, we should invite them in September or as early as possible to provide explanations. If the promised amendments have been made, we can then conclude that this matter has been resolved.

[English]

The Joint Chair (Senator Day): Showing them the fact that we are moving on this, that we will be inviting them to come speak to us if these amendments are not made by September.

The Joint Chair (Mr. Albrecht): By June 21.

The Joint Chair (Senator Day): Okay, the beginning of summer, June 21.

The Joint Chair (Mr. Albrecht): We'll see you in September.

The Joint Chair (Senator Day): That sounds like the beginning of a good song.

[Translation]

Is everyone in favour of that proposal?

[English]

Hon. Members: Agreed.

The Joint Chair (Senator Day): Contrary minded? Motion carried.

Mr. Oliver: I have a related discussion point on our first topic. I was wondering if we could return to in camera. I want to have one more in camera moment before the agenda is completed, just with respect to Mr. Badawey's motion.

Mr. Badawey: We can do that. I just wanted to complete the "Action Promised'' section of our agenda. It's pretty straightforward. We could just move that block and then we could go back in camera and satisfy Mr. Oliver's request.

The Joint Chair (Senator Day): Is any action required on the other items, the SI items.

SI/2016-42 — ORDER FIXING JULY 3, 2016 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE.

SI/2016-48 — ORDER DESIGNATING THE NATIONAL INQUIRY INTO MISSING AND MURDERED INDIGENOUS WOMEN AND GIRLS COMMISSION AS A DEPARTMENT AND DESIGNATING THE PRIME MINISTER AS THE APPROPRIATE MINISTER WITH RESPECT TO THE COMMISSION.

SI/2016-49 — ORDER ACKNOWLEDGING RECEIPT OF THE ASSESSMENTS DONE PURSUANT TO SUBSECTION 23(1) OF THE ACT.

SI/2016-53 — ORDER FIXING OCTOBER 31, 2016 AS THE DAY ON WHICH SECTION 23 OF THE ACT COMES INTO FORCE.

SI/2016-54 — PROCLAMATION DESIGNATING "FIRE PREVENTION WEEK''

SI/2016-55 — ORDER ACKNOWLEDGING RECEIPT OF THE ASSESSMENTS DONE PURSUANT TO SUBSECTION 23(1) OF THE ACT.

SI/2016-62 — ORDER FIXING DECEMBER 1, 2016, AS THE DAY ON WHICH SECTIONS 21 TO 28 OF THE ACT COME INTO FORCE

SI/2016-63 — ORDER DISCONTINUING THE CANADA REVENUE AGENCY ANNUAL REPORT TO PARLIAMENT.

SI/2016-72 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTION 148 OF THE ACT COMES INTO FORCE.

SI/2016-73 — ORDER FIXING JANUARY 1, 2017 AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE.

SOR/2014-51 — REGULATIONS AMENDING CERTAIN REGULATIONS RELATING TO MARIHUANA FOR MEDICAL PURPOSES.

SOR/2014-115 — REGULATIONS AMENDING THE PACIFIC PILOTAGE TARIFF REGULATIONS

SOR/2014-136 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS.

SOR/2014-265 — ORDER DECLARING THAT THE REDUCTION OF CARBON DIOXIDE EMISSIONS FROM COAL-FIRED GENERATION OF ELECTRICITY REGULATIONS DO NOT APPLY IN NOVA SCOTIA.

SOR/2014-279 — ORDER DECLARING THAT THE WASTEWATER SYSTEMS EFFLUENT REGULATIONS DO NOT APPLY IN YUKON.

Ms. Borkowski-Parent: On "Statutory Instruments Without Comment,'' no. They have been found to meet all of the committee's criteria. We will, therefore, with the committee's approval, close the files.

Hon. Members: Agreed.

SOR/2016-61 — REGULATIONS AMENDING THE PEST CONTROL PRODUCTS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix O, p. 18O:1.)

Ms. Borkowski-Parent: The same on Item 16, which is under the heading "Action Taken.''

On Item 15 under "Action Promised,'' there's no timeline expressed by the department, but we will follow up on that.

The Joint Chair (Senator Day): Okay, can we have a motion?

The Joint Chair (Mr. Albrecht): What about 14? We didn't do 14 either.

The Joint Chair (Senator Day): Did we not?

SOR/2003-323 — PRESENTATION OF PERSONS (2003) REGULATIONS

SOR/2005-385 — REGULATIONS AMENDING THE PRESENTATION OF PERSONS (CUSTOMS) REGULATIONS AND THE PRESENTATION OF PERSONS (2003) REGULATIONS

SOR/2006-154 — REGULATIONS AMENDING THE PRESENTATION OF PERSONS (2003) REGULATIONS

(For text of documents, see Appendix M, p. 18M:1.)

SOR/2015-84 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I
AND VI — OFFSHORE OPERATIONS)

(For text of documents, see Appendix N, p. 18N:1.)

Mr. Abel: On Item 14 and Item 15, there are amendments promised on both. I would suggest that timelines for both files should be sought.

The Joint Chair (Senator Day): Is that acceptable?

Hon. Members: Agreed.

The Joint Chair (Senator Day): We've finished the agenda. We want to return to Item No. 1. Should we now move in camera?

The Joint Chair (Mr. Albrecht): Yes, he made a motion.

The Joint Chair (Senator Day): All those in favour?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Contrary minded?

(The committee continued in camera.)