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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 25 - Evidence - November 2, 2017

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OTTAWA, Thursday, November 2, 2017

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:32 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 of the Standing Joint Committee for the Scrutiny of Regulations. We have a number of items to care for today. Before we start with Item 1 on our agenda, I will look to counsel for some opening remarks.

Evelyne Borkowski-Parent, General Counsel to the Committee: Good morning. In front of you is a draft letter addressed to the Secretary of the Treasury Board regarding the cabinet directive on regulation. We have circulated the draft to you this morning for your comments. We will follow up with an email this morning. We would appreciate members’ comments for Monday, if possible, so we can send that letter to the Treasury Board.

The Joint Chair (Mr. Albrecht): For clarification, it was just distributed this morning. We are not going to be discussing it in detail today because you haven’t had time to look it over, but if you have comments, counsel needs to receive them by Monday noon?

Ms. Borkowski-Parent: Before close of business Monday.

The Joint Chair (Mr. Albrecht): By close of the day on Monday. Is everyone clear on that? If we don’t hear comments by close of the day Monday, we’re assuming you are in agreement with the statement. It would be preferable if you would send your agreement as well so that there is no question. However, we can’t wait. If we don’t have any responses, we’ll need to move forward with it.

Let’s move to Item 1 on our agenda.

SOR/2014-304 — SAMPLES OF BODILY SUBSTANCES REGULATIONS

(For text of documents, see Appendix A, p. 25A:1.)

Ms. Borkowski-Parent: The remaining issue on this file pertains to the inconsistency between the French version of subsection 19(2) and subsections 5(2) and 12(2) of the regulations.

This file was before the committee at its last meeting before the summer. In light of the previous two noncommittal answers the committee has received thus far, members elected to send a stern letter asking for a definitive timeline for the making of the amendments.

You have the response in front of you. Despite the request from the committee, the department states that it is working to identify options to achieve this within a reasonable time frame, and it continues to be unable to provide the committee a specific timeline.

The Joint Chair (Mr. Albrecht): What is your wish on how to proceed with this? It seems like they’re foot-dragging here. Is it time to move on? Send another letter or ask them to appear before the committee to explain why something as simple as a difference in terminology between French and English can’t be rectified?

The Joint Chair (Senator Day): Isn’t the letter from the Department of Justice, and they will be appearing on something else?

Ms. Borkowski-Parent: Yes, officials from the Department of Justice are scheduled to appear before the committee at the November 23 meeting on a different file, the firearms regulations, but if it’s the will of members, we could ask that they comment on this file as well.

Mr. Tilson: Letters aren’t working, so we might as well add them to the fray. They can come November 23 and we’ll have a chat. I would make that motion.

The Joint Chair (Mr. Albrecht): Okay, we have a motion that we will add this to the agenda for November 23 when they are here on another issue.

Any discussion on that motion? All in favour? Okay, we’ll proceed in that fashion. Thank you.

Next is Item 2.

SI/2015-33 — ORDER AMENDING THE CANADIAN PASSPORT ORDER

(For text of documents, see Appendix B, p. 25B:1.)

Ms. Borkowski-Parent: There are four issues at play on this file. First, there are discrepancies between the language used in the order and in the Prevention of Terrorist Travel Act with respect to the standards for revocation or cancellation of a passport. While the standard for revocation or cancellation under the act is a question of fact, under the order it is not.

On that point, this letter from the department states there is little possibility for confusion, but they might seek some amendments to the act at the next available opportunity.

The next set of issues relates to the cancellation of a passport as opposed to its revocation. This is an argument the committee has to make with some frequency with different departments. When terms like “revocation,” “cancellation” or “suspension” are used interchangeably in a regulation, the determination of the circumstances for each is left to administrative officials. That means that two people in similar circumstances could face different results.

The department initially advised that the lower standard of “reasonable grounds to suspect” applies to cancellation, while the higher standard of “reasonable grounds to believe” applies to revocation on the basis that cancellation was an interim measure. This was news to everyone as there is nothing in the order that conveys that cancellation is an interim measure.

After the last review of the committee, it was put to the department that either cancellation is an interim measure, at which point you need to clarify the order, or it is not an interim measure and the initial question of the difference between cancellation and revocation remains.

The department’s response indicated it will work with its legal services to determine how to best clarify the interim nature of cancellation.

Also in connection with cancellation was the fact that there is no process for the reissuance of a cancelled passport. Following the last meeting, the department was reminded that using non-binding policy guidelines is insufficient to supplement the regulation’s shortcomings.

The third point pertains to the lack of notice for the cancellation of a passport.

Mr. Di Iorio: Do we address them one on one or all at once?

The Joint Chair (Mr. Albrecht): Let’s have the overview, then we can come back.

Ms. Borkowski-Parent: The third point pertains to the lack of notice for the cancellation of a passport and the fact that regulations are also silent on this matter for cases of revocation. While the department originally refused to make amendments to clarify these matters on the basis that as a matter of practice it follows rules of procedural fairness, it has now reconsidered its position and will seek to clarify the order.

That covers the promised actions for this file.

You will also note that there are no timelines mentioned anywhere in the department’s response. So on these issues, perhaps a timeline could be sought with a reminder to the department of the committee’s new procedure, which is that progress needs to be shown in the next 12 months or else witnesses might be called. Counsel would, of course, monitor the file as per our usual practice to make sure things are on track.

The last point of contention deals with the unusual wording of subsection 11.4(2) which states that the minister, in this case the Minister of Immigration, shall support the Minister of Public Safety and Emergency Preparedness in carrying out his or her responsibility under this order. This seems to be the only provision in federal legislation where one minister is obliged by law to support another one. We can assume with some confidence that departments cooperate with one another on a semi-regular basis. So the questions put were: Why put this in the order? And what does support entail?

According to the department’s answer, without subsection 11.4(2), the Minister of Immigration could not receive information relating to national security decisions.

First, if the intent of subsection 11.4(2) is information sharing, it should clearly say so.

Second, section 8 of the Privacy Act contemplates the sharing of information between a department and an investigative body listed in the schedule for the carrying out of a lawful investigation.

The security office of Passport Canada, which is under the umbrella of Global Affairs Canada, is listed as such an investigative body, but not the Department of Immigration. Perhaps that’s where the difficulty lies.

In any event, the department’s response is less than transparent on this question, so if subsection 11.4(2) is legally required, then evidence should be provided as such.

The Joint Chair (Mr. Albrecht): Thank you.

It appears to me that action is progressing with the first three. All we need to do with the first three, in my understanding, is request a timeline.

[Translation]

Mr. Di Iorio: Right now, I am looking at the French version, which uses the term “annulation” in point 2.

[English]

In English, it’s also “cancellation.” Generally speaking, when you look at translation, “cancellation” and “annulation” are used one for the other. At least there was consistency in the translation.

Where it’s an aberration is to use the term “cancellation” for something interim, because it’s the exact opposite. “Cancellation” and “annulation” are very important because they apply retroactively, as if it never existed, which in the matter of a passport could have dire consequences for a citizen who is abroad because he is deemed never to have had the passport. So there are further complications in using that terminology. I think it’s important to be aware of it.

I have admiration for people who can draft legislation because it’s a very difficult skill to acquire. Not everybody has it. But usually when drafting legislation, the rule is that you say what you want to say. It makes it much simpler. So for the citizen, it’s very unfair to use this kind of language. Basically, regulations are destined to citizens. It’s very unfair to them because whenever you enter into what I call the black hole of immigration, and citizenship, it’s already impenetrable. If you complicate it further with language, I think we have to send a message.

The Joint Chair (Mr. Albrecht): Would you suggest using the word “suspension,” or do you have other terminology to suggest?

Mr. Di Iorio: Suspension.

The Joint Chair (Mr. Albrecht): To me, suspension is an interim measure. But cancellation —

Mr. Di Iorio: Do we go to point 4 right away?

The Joint Chair (Mr. Albrecht): Let’s focus on the first three, because they are in a category that there is action being moved on. However, I’m at the committee’s mercy.

Mr. El-Khoury: For me, it is really clear that there is an ambiguity in this explanation between “cancellation” and “revocation.” What puzzles me a bit is that they said they are doing their best to review and to clarify when. We need some good clarification. Because there is some legal obligation toward the citizens in order to let every Canadian understand clearly how a passport could be revoked or cancelled. So please, we need those explanations as soon as possible with a time frame, I suggest.

The Joint Chair (Mr. Albrecht): At some point, you have someone suggest a timeline.

Mr. Tilson: With regard to these two words, I think I understand what counsel said about the distinction, although frankly, whether it’s cancelled or whether it’s revoked, with either one you could bring them back. There is nothing to say you can’t bring them back, is there? Are you telling me “cancellation” means that’s it, and “revocation” means you can bring them back?

Ms. Borkowski-Parent: There is no process for reissuance right now.

Mr. Tilson: For either word?

Ms. Borkowski-Parent: For either. Right now they are used interchangeably, with the added difficulty that “cancellation,” — andMr. Di Iorio pointed out that it usually signifies something permanent — was meant as an interim measure so the passport could be reissued, but none of that is transparent from reading the order. So if there are interim measures, they should be pointed out as such. We shouldn’t have words like “cancellation” and “revocation” which could be used interchangeably without having a different set of application circumstances for each, and also having a process for the reissuance. If you’re going to suspend, or in this case they say cancel, a passport, to make an investigation and nothing comes out of that investigation, the person should have their passport back. How do you reissue it? All of these need to be clarified.

Mr. Tilson: I can’t believe that whether you use the word “revocation” or “cancellation” that you can’t bring it back. Drivers’ licences are cancelled or revoked in all provinces across the country. You can bring anything back.

The Joint Chair (Mr. Albrecht): I think the point is there are no guidelines as to how it can happen in this particular situation.

Mr. Tilson: That’s a different story. If you’re going to use one of these words, saying that one of them never comes back and one of them might come back — you’re suggesting, Mr. Chairman, that there be another paragraph, another section.

Is that what you’re saying, counsel?

Ms. Borkowski-Parent: Yes.

Mr. Tilson: What are you suggesting?

Ms. Borkowski-Parent: That at the very least there be a provision added to the order on how someone would go about it or what are the criteria to have a passport reissued after it was suspended. As you pointed out, those kinds of administrative documents are cancelled, suspended, but usually the regulations will state how you reapply for a passport or how it is reissued. Right now it’s probably done administratively. If you’re going through the trouble of having in the order the basis for the revocation and you don’t have the basis for the reissuance, there is a problem. There is something missing.

Mr. Tilson: Your recommendation is that you don’t care about which word is used, but there should be a paragraph, as the chairman suggested, saying how they are reissued. Is that what you’re recommending?

Ms. Borkowski-Parent: That’s one of the recommendations. The other one is if you are going to have a scheme for something being an interim measure, it should be apparent. Because right now there is nothing in the order that would let anyone know that cancellation is temporary.

The Joint Chair (Mr. Albrecht): Given the very definition of “cancellation” in the English language, I don’t know how they can possibly use the word “cancellation” as an interim measure.

Mr. Oliver: What is the guideline here? I thought we were trying to standardize the time frames we give departments to get back to us. Is this one year, two years or six months? What is the recommendation on a timeline at this point? I really do think we should have a standardized time frame for these things where we’re looking for regs or orders to be rewritten.

The Joint Chair (Mr. Albrecht): We discussed that last time, Mr. Oliver. I agree that it would be nice, but there are some instances where the process would automatically take longer. This one seems pretty clear cut.

Mr. Oliver: Is there advice from counsel, then?

Ms. Borkowski-Parent: At the very least, the threshold is progress over a year. That’s the new committee procedure. We follow up with departments every four months to see where they are at.

Mr. Oliver: Would the guideline then be to have these issues addressed in a year?

Ms. Borkowski-Parent: Yes.

Mr. Oliver: Is that the motion you are looking for, Mr. Chair, that the department respond within one year?

The Joint Chair (Mr. Albrecht): I think this one can be dealt with more expeditiously than a year. I’ll leave that up to the committee. This has been dragging on forever.

Mr. Oliver: I’ll start with the year.

The Joint Chair (Mr. Albrecht): We have a motion that this timeline be within one year. Any further comment on that?

Mr. Diotte, are you good with that? All agreed?

Sounds like we’re good with that. We’ve dealt with the timeline.

Mr. Tilson: To return to the words, are we just going to leave it, or are we going to recommend wording as to how the passports could be reissued?

The Joint Chair (Mr. Albrecht): My understanding was that if we’re going to proceed with the word “cancellation,” which in my opinion is absolutely the wrong word to use, they need it defined clearly that, in their understanding, “cancellation” means temporary. That’s the least we could do.

I think Mr. Di Iorio has a better solution wherein we clearly identify the suspension is temporary and they could be renewed, but the others have to be annulled, revoked or cancelled. As our counsel has said, we need another paragraph to define how, in fact, that can be reissued.

Mr. Di Iorio: I want to disassociate myself from anyone who tries to convince me to call an apple a cauliflower. I’m not going to play dumb on that. This is nonsense. We’re a bicameral committee here and bipartisan or tri-partisan based on how I see the way we work.

The Joint Chair (Mr. Albrecht): Maybe even non-partisan.

Mr. Di Iorio: Yes. So we should state our concern about the use of language that doesn’t correspond to common understanding.

Basically, you are dealing with citizens and not an industry group that has a stack of lawyers and sophisticated advisers who can explain to them the impenetrable language that bureaucrats might use.

This is a situation where citizens might be doing a web search and will look at it and say, “Cancel? What is that?”

We’re going in circles here. They should call it what it is. We should say so. We’re their representatives.

Ms. Borkowski-Parent: There are difficulties with using the word “suspension” in this case. First, “revoke” and “cancel” are both used in the act and that’s where the initial difficulty lies. Also, “suspension” seems to be used in other administrative circumstances, so I’m afraid the ultimate choice of words is going to have to be left to them.

That being said, what should be clear is that whatever word is used for the interim measure, there is some language that states that it is temporary.

Mr. Di Iorio: But we certainly should express our concern and encourage them to find a solution and not simply pass it on.

The Joint Chair (Mr. Albrecht): Counsel is clear on the direction the committee would like to go. We will leave it up to them to find the appropriate wording to indicate our concerns and hopefully have this dealt with.

That deals with the first three points.

We feel that the fourth point could be dealt with administratively rather than in the act. Any comments on how to deal with that?

Mr. Di Iorio: I can’t comprehend this. I certainly have a good hint as to why this is the only time we have found it. This is the first time you have seen it in a regulation. It defies logic to have something like this. It doesn’t belong there. This does not go here. This is not where you do these things.

There is a structure and a hierarchy. There is somebody somewhere who could allocate human resources, but you don’t start introducing this, which is the initiation of a dysfunction. You are just passing on into regulation a dysfunction that exists somewhere. Someone, somewhere doesn’t seem to be able to make that connection and they feel they have to put it into regulation, but we shouldn’t sit idle and let it pass by.

The Joint Chair (Mr. Albrecht): Are you suggesting that we insist they remove this particular section?

Mr. Di Iorio: Exactly.

The Joint Chair (Mr. Albrecht): Is there any further comment on that idea?

Are you prepared to make that a motion, Mr. Di Iorio?

Mr. Di Iorio: Yes.

The Joint Chair (Mr. Albrecht): Any further discussion? All in favour, please raise your hands.

Carried. Thank you.

Item 3 is next on our agenda. It deals with Regulations Amending the Quebec Fishery regulation, 1990. What do we have?

[Translation]

SOR/2008-322 — REGULATIONS AMENDING THE QUEBEC FISHERY REGULATIONS, 1990 AND CERTAIN OTHER FISHERIES REGULATIONS

(For text of documents, see Appendix C, p. 25C:1.)

Penny Becklumb, Counsel to the Committee: In 2016, counsel raised 100 issues regarding these regulations. Last April, the department stated that it would address 66 of these issues as part of a regulatory initiative that it intends to submit to the Treasury Board Secretariat by the end of the 2017-18 fiscal year.

In addition, 24 further issues are to be the subject of more in-depth consultations with stakeholders. The remaining 10 issues require consultation with the Quebec government, which applies these regulations. No timelines were provided for the analyses and consultations with stakeholders and the Quebec government.

[English]

The Joint Chair (Mr. Albrecht): I have a quick question. Where it says “end of the 2017-18 fiscal year,” is that April of 2018?

Ms. Becklumb: Correct.

The Joint Chair (Mr. Albrecht): I just wanted to clarify that.

Also, as it relates to this big, long schedule that we have with all of the numbers up one side and down the other, I’m having difficulty understanding how something like the location of a bridge, in Item No. 67, would require stakeholder consultation. In my opinion, you can go to Google and find where the bridge is, so I’m having difficulty understanding their rationale.

Ms. Borkowski-Parent: In this instance, I agree that it’s not so much locating the bridge; we did Google these things. But considering they are bodies of water or geographic areas within the province and the province administers the regulations, it’s consulting with them as to the proper wording.

The Joint Chair (Mr. Albrecht): And then, on the definition of “large” in Item No. 91, again I don’t understand why you would have to consult with Quebec.

What is counsel’s recommendation? Are we comfortable letting this progress as it is, or is there another recommendation?

Ms. Becklumb: It looks like it is progressing. They promised action on Item No. 66, and they are working on the remaining ones. They have a plan, but they didn’t provide a timeline.

Mr. El-Khoury: They did. They said by 2017-18 in a letter addressed to Ms. Borkowski-Parent.

Ms. Becklumb: That’s just for the first 66, though.

Mr. El-Khoury: The letter states, “. . . the Department anticipates presenting to Treasury Board Secretariat by the end of the 2017/18 fiscal year.”

The Joint Chair (Mr. Albrecht): That’s for the first 66 items, I believe. There are 24 others that aren’t addressed, and then there are another 10 for which more consultation is needed. I think it’s those others for which we are trying to find some definition in terms of response time.

Ms. Borkowski-Parent: We could follow up to make sure they are on track for the 66 amendments for 2017-18, and keep following up with them to get substantive answers on the questions that still need clarification. We would follow up with them every four months as per our usual practice.

The Joint Chair (Mr. Albrecht): If counsel follows up every four months, are we comfortable with Mr. Oliver’s earlier idea? Do we want to make sure it’s dealt with totally in a year? Is that reasonable or unreasonable?

Ms. Becklumb: I think that’s ambitious.

The Joint Chair (Mr. Albrecht): Okay, then let’s do it.

Mr. Tilson: How long should you take to determine what “large” means?

The Joint Chair (Senator Day): We have 24 issues that we don’t have any timeline on.

The Joint Chair (Mr. Albrecht): The 24 are being dealt with by April 2018. Sorry, those are the 66.

The Joint Chair (Senator Day): So shouldn’t we do something with respect to the 24 and say we’ll look forward to their answer on the 66 before April 1, 2018? But what about the other 24?

Ms. Becklumb: There are 34.

The Joint Chair (Senator Day): Oh, it has gone up.

Ms. Becklumb: There are 24, and then there is another group of 10. There are three groups. There is the easy group, 66; the medium group of 24, where they have to consult with stakeholders; and there are 10 more on which they have to consult with Quebec.

The Joint Chair (Senator Day): Well, consulting with Quebec may take a little longer.

Ms. Becklumb: Right.

The Joint Chair (Mr. Albrecht): Especially on the definition of “large.”

Is the committee agreed that we’ll request that counsel complete following up every four months, with the goal to have this closed within a year? Is that reasonable? Ambitious?

Ms. Becklumb: Yes, but we can start with that.

The Joint Chair (Mr. Albrecht): If we don’t shoot for it, we’re not going to get it. Unless there is disagreement by the committee. Are we all agreed with that?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): So ordered. Thank you.

[Translation]

SOR/2010-107 — REGULATIONS AMENDING THE CLASS II NUCLEAR FACILITIES AND PRESCRIBED EQUIPMENT REGULATIONS

(For text of documents, see Appendix D, p. 25D:1.)

Ms. Borkowski-Parent: This is the first examination of these regulations by the committee. As usual, I will summarize the points raised in the initial letter.

Under point 1, in reading the two versions of section 15.02, it is unclear whether the prohibition in this section pertains to the permit holder or to the person who holds the position of radiation safety officer. The commission indicated that it is the latter and that the wording of the section will be changed to clarify this.

Under point 2, the commission agreed to correct the inconsistency between the French and English versions of section 15.04. Also, section 15.04 states that the commission may certify a person as a radiation safety officer if that person meets certain requirements. The verb “may” indicates a discretionary power to approve or refuse to certify a person. A discretionary power greatly limits the reasons for which a person may contest a decision by judicial review, so the distinction has important practical consequences.

The commission cites paragraphs 21(1)i) and 44(1)k) of the Nuclear Safety and Control Act to justify this discretionary power. Paragraph 21(1) states that, in carrying out its mandate, the Commission may certify and decertify persons to carry out their duties, and paragraph 44(1)k) of the same act allows the Commission, with the approval of the Governor-in-Council, to make regulations respecting the qualifications, training and examination of workers in the nuclear sector.

The commission appears to be confusing its power to make regulations with the discretion to proceed as it sees fit. The existence of procedural guarantees, as we saw under agenda item 2, cannot make up for this.

If the commission wishes to consider factors other than the technical factors listed in section 15.04, it should be able to list them, if only in a summary way.

The note prepared for you this morning provides an example of what could be included in section 15.04. This wording would eliminate the arbitrary risk that concerns the committee, while preserving a degree of flexibility that the commission wants.

Finally, with regard to point 3 and the presence, once again, of an unrestrained discretionary power, the commission appears to have a very clear understanding of what is intended by section 15.08. In fact, the administrative documents already indicate that. As a result, the circumstances that can lead to decertification should be listed in the regulations, since the administrative guidelines are not binding in any case.

In short, as to point 1 and the inconsistency raised in point 2, the committee could ask the commission for timelines and, as to the issues involving discretion in points 2 and 3, the committee could ask the commission to review its position.

[English]

The Joint Chair (Mr. Albrecht): Okay. Thank you.

So under point 1, basically all we need is a timeline.

Point 2, you have a possible solution at the bottom of page 3. Have you had dialogue with the department in thinking that they may be open to adopting that?

Ms. Borkowski-Parent: Not yet, no.

The Joint Chair (Mr. Albrecht): Mr. Oliver?

Mr. Oliver: Help me to understand this debate. In my background, I ran a hospital. We had to have a radiation safety officer. We only needed one. Although many had qualified, we just needed one, so we hired one to be the point person for radiation safety so that we knew who to hold accountable. That’s how I read this, that the commission or designated officer, if they need one, may appoint one. This has been read to mean more about accepting or not accepting an individual, but I read it more as, “Does the organization need one?” If they do need one, then they may appoint one. Could you just help me to understand how this reads differently?

It’s probably because I just see one small piece of it here.

Ms. Borkowski-Parent: This is about decertification and not necessarily about an organization using someone. Obviously, the certificate holder has to have a person who is accredited.

Mr. Oliver: Okay, so this is about the licensing. When I needed to get somebody who was going to be the medical radiation —

Ms. Borkowski-Parent: Yes.

Mr. Oliver: I would go to a pool. So this isn’t about — okay, I got it.

Ms. Borkowski-Parent: Whether their accreditation is recognized by the Nuclear Safety Commission.

Mr. Oliver: So this is about giving them the title or the accreditation that, then, they could go and apply for jobs with. I get it.

Ms. Borkowski-Parent: That is correct.

Mr. Oliver: It seems very discretionary.

The Joint Chair (Mr. Albrecht): Under point 1, we just need a timeline. They’ve agreed that the necessary amendment will be included.

Counsel, again, is a year adequate, or is that too long for the first timeline?

Ms. Borkowski-Parent: I’m wondering if this could go through MARs. Probably. I think, for point number 1, there is a possibility that this could go through a Miscellaneous Amendment Regulations process.

The Joint Chair (Mr. Albrecht): So that would be much more rapid than the year.

Ms. Borkowski-Parent: Correct. Not more rapid than a year, but a year.

The Joint Chair (Mr. Albrecht): Within the year. Is the committee agreed that we’ll allow this to go through the MARs process if that’s applicable? I see no disagreement. We’ll proceed in that fashion.

Item 2 has a proposed solution at the bottom of page 3. Again, there is no timeline.

Committee, this seems like a reasonable solution, unless there are other views. All agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): We’ll proceed in that fashion.

Then, item 3, regarding putting these things in regulation, rather than simply having it dealt with administratively, do we want forceful language to clarify that? Are we agreed? I see heads nodding. Not sleeping, but nodding affirmatively. All right, so ordered.

SOR/2016-76 — FORMER MEMBERS OF PARLIAMENT COUNTING OF SERVICE REGULATIONS

(For text of documents, see Appendix E, p. 25E:1.)

Ms. Borkowski-Parent: Once again, this is the first examination by the committee of this file. I will go through the points succinctly.

Point 1 pertains to the redundancy of subsection 1(2) of the regulations. The RCMP has agreed to repeal the provision because it repeats what is in the RCMP Superannuation Act in any event.

Point 2 deals with the case where misleading or erroneous information was provided to a contributor with respect to their election, while subsection 2(6) of the regulations seemed to create a permanent right to revoke an election, which was contrary to the spirit of the act. The very intricate explanation provided by the RCMP points, rather, to an intermediary step that was created in order not to penalize contributors who made an election based on erroneous information. So, on that point, this explanation could be considered satisfactory.

An amendment has been promised with regard to point 3 to specify the interest rate applicable under paragraph 4(b).

On point 4, subsection 8(2) requires that a notice of default be sent to a contributor as soon as feasible after the default. The wording of this provision is so broad that it was unclear what the consequences were. The RCMP has agreed to amend subsection 8(1) to specify the moment for the sending of the notice of default, which would then lead to the repeal of subsection 8(2).

An amendment has been promised on point 5 to clarify the mechanism used in subsection 9(1) to determine the date when a notice of default is sent.

A satisfactory answer has been provided on the calculation of interest under section 10. That’s point 6.

There were three questions relating to point 7. Subsection 12(1) allows a contributor who establishes unforeseen undue financial hardship to triple the length of the payment period to a maximum of 15 years. Because of the wording of subsection 12(1), it appears that the only available option to a contributor is to triple the length of the period for the payment of monthly instalments. In other words, the regulations do not allow for any period of amortization other than triple the length.

The RCMP’s response has failed to address this particular point. Furthermore, since the initial payment period may not exceed 20 years, the RCMP was asked if subsection 12(1) could create a situation where a contributor had no other option but to revoke his election. The RCMP confirms that for any contributor whose payments period already exceed 15 years, the only option would be the revocation of future payment. But because of the scheme in the Royal Canadian Mounted Police Superannuation Regulations that permit the revocation of future payments in part only, their response on this particular aspect of subsection 12(1) could also be considered satisfactory.

Lastly, while section 14 of the regulations refers to situations of financial hardships, section 12 refers to situations of undue financial hardship. There is no distinction intended, so the RCMP agrees to amend section 12 in order to remove the word “undue.”

At this point, there are four satisfactory answers, three amendments for which counsel could follow up, a clarification on point 7 with regard to subsection 12(1), and the point on triple the length of time for monthly instalments.

The Joint Chair (Mr. Albrecht): Thank you, counsel.

Point number 3 in your notes is the one that needs significant continuing dialogue? Has it been resolved?

Ms. Borkowski-Parent: No, it’s the first part of point 7.

The Joint Chair (Mr. Albrecht): Is point 3 resolved? That’s my question, because 1 and 2 are resolved.

Ms. Borkowski-Parent: Point 3 is a promise of action, so we would follow up on that.

The Joint Chair (Mr. Albrecht): On Item No. 7, first paragraph, dealing with up to 15 years and the only option being triple, it seems to me that a reasonable solution would be adding the words “up to.” I don’t know how the committee feels about that. Any suggestions?

Mr. Tilson: Excellent idea, Mr. Chairman.

Mr. Oliver: Agreed.

The Joint Chair (Mr. Albrecht): Any further discussion on that?

Mr. Tilson: So moved.

The Joint Chair (Mr. Albrecht): All agreed? That deals with the entire package?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Mr. Albrecht): I will move over to my joint chair.

The Joint Chair (Senator Day): Just before we move on, with respect to where the RCMP indicated they would do something, are you automatically following up on that? We don’t set a timeline at this stage?

Ms. Borkowski-Parent: It’s up to committee members. They have not provided a timeline at this point. We could ask, or members could —

The Joint Chair (Senator Day): Do we save that for the next round? There are quite a few things they promised to do. What is your recommendation, counsel? They seem to be cooperative.

Ms. Borkowski-Parent: We could ask. Depending on the answer, we would bring it back to the committee’s attention if it was unreasonable.

The Joint Chair (Senator Day): Is that satisfactory? Okay. Those are the steps we’ll take.

[Translation]

SOR/2011-237 — BALLAST WATER CONTROL AND MANAGEMENT REGULATIONS

(For text of documents, see Appendix F, p. 25F:1.)

Ms. Borkowski-Parent: Eight issues were raised in the initial letter from counsel, namely, six issues regarding inconsistencies between the English and French versions, and two errors in drafting.

Most of the expected amendments have already been made under SOR/2017-20, which will be presented to the committee at a later date. However, there is still the issue of terminological consistency in the French version of paragraph 13(5)b), in which the term “faisabilité” was used instead of “possibilité.”. Upon review, counsel has determined that the term “possibilité” would make this unidiomatic if not awkward. As a result, we recommend leaving the wording of paragraph 13(5)b) as is and closing the matter.

[English]

The Joint Chair (Mr. Albrecht): So moved.

The Joint Chair (Senator Day): Are you okay with that? Sounds okay.

Mr. Tilson: Yes.

The Joint Chair (Senator Day): That’s progress for you.

Next is Item No. 7 on our agenda under the heading “Reply Satisfactory.”

SOR/2015-157 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix G, p. 25G:1.)

Ms. Becklumb: A single issue was raised in relation to these amending regulations. It’s in section 3, which amends the French version of a schedule to the Contraventions Regulations. You might find it easier to follow this if you look in your package. There is a letter dated June 22. On page 2 of that letter, there is a reproduction of a portion of the schedule we’re talking about here. You can see the column numbers there.

The amending regulations were only meant to amend column 2 of the schedule, but section 3 doesn’t explicitly state this. Rather, section 3 says it’s replacing paragraph 4(d) of the schedule. That might just be column II, or it might be column II and column III.

If the amending regulations have amended both columns II and III, this means that the fine associated with paragraph 4(d), which is in column III, has been repealed, but only from the French version.

The department maintains this didn’t happen and that only column II was replaced. It believes the fact that section 3 explicitly sets out the paragraph being replaced limits the amendment to column II, which is part of the schedule that includes a paragraph. This explanation is plausible, but it’s not conclusive.

However, the department acknowledges that section 3 could have been drafted more clearly. It undertakes to avoid doubt in similar amendments in the future by specifically referring to the column in question.

Is the committee satisfied with this answer?

The Joint Chair (Senator Day): That’s just in the future?

Ms. Becklumb: In the future, right.

Mr. Tilson: As long as there is no ambiguity for the present.

The Joint Chair (Senator Day): Are we okay with that promise? We’ll keep an eye on it? Do we have consensus on that point, then? Thank you.

[Translation]

SOR/2016-272 — ORDER AUTHORIZING THE ISSUANCE OF SEVEN CIRCULATION COINS AND DETERMINING THE CHARACTERISTICS AND DESIGN

(For text of documents, see Appendix H, p. 25H:1.)

Ms. Becklumb: Section 8 pertains to an order made in 2016 authorizing the issuance of seven coins. In November 2016, counsel raised a single question about this order, namely, a difference between the English and French versions of the description of the colour of the turtle on the back of the 25 cents coin that was struck to mark the one hundred and fiftieth anniversary of Confederation. These coins have now been struck. They are in circulation and are for sale as collectible coins on the Royal Canadian Mint’s website. As a result, it does not seem necessary to require an amendment to this order.

The Royal Canadian Mint acknowledged the error and discussed improving the process with the Department of Justice, which was responsible for drafting that order, to ensure that such errors do not occur again.

Is the committee satisfied with this response?

[English]

Mr. Di Iorio: How much does it cost to remove them?

Mr. Tilson: How do we get these? They’re probably worth a fortune.

The Joint Chair (Senator Day): How do you find a green, beige and brown turtle?

I think your recommendation is that we let this go.

Ms. Becklumb: The coins are in circulation.

SI/2008-85 — CERTAIN FEES RELATING TO EXPORT CERTIFICATES REMISSION ORDER

SI/2008-86 — CERTAIN FEES RELATING TO FEEDER CATTLE IMPORTED FROM THE UNITED STATES REMISSION ORDER

SI/2008-87 — CERTAIN FEES RELATING TO REGISTERED ESTABLISHMENTS REMISSION ORDER

(For text of documents, see Appendix I, p. 25I:1.)

The Joint Chair (Senator Day): We have had distributed a second bundle of documents with the number 9 on them. We should call for an explanation as to why that was deemed necessary.

Ms. Borkowski-Parent: There was an email sent to you last week. There were some printing issues, so the package is circulated. The pages missing were part of the agency’s User Fee Remission Policy, but the note and the correspondence remains the same.

That’s why you have a package in front of you this morning.

The Joint Chair (Senator Day): So we’ll just carry the second one and dispose of the first one in due course. Could we have an explanation of Item No. 9 under that is under the heading of “Progress”?

Ms. Borkowski-Parent: Yes. It could have been “Reply Satisfactory” as well.

To summarize this file, the problem at hand was that there were two powers for the remission of fees charged under the CFIA Fees Notice. There is a specific power to the minister under the CFIA Act. There is a more general remission power found under section 23 of the Financial Administration Act.

As a matter of statutory interpretations, specific provisions prevail over more general ones, as do more recent ones over older ones.

The three statutory instruments in question were made under the general power to remit fees under the FAA. So when Parliament enacted section 29 of the CFIA Act to give a power to the minister to remit fees, it was well aware of the existence of the general power to remit fees under the FAA.

In the absence of guidelines on which power to use, reverting to the general power when a more specific one has been provided, it amounts to saying that Parliament has legislated in vain.

The CFIA agreed to develop a policy to establish under which act the remission of fees would be pursued. You have that policy in front of you this morning. Of note is the statement under the heading “Authority to Grant Remission,” which states that if the estimated value of the remission for a period of one year is expected to exceed 5 per cent of the total revenue collected from user fees, the CFIA will recommend that the remission be granted under the authority of the FAA.

So while the use of concurrent powers remains debatable, the CFIA came with an objective criteria to select the power to be used. It remains that it’s probably the best outcome the committee can expect in this case and the file could be closed.

The Joint Chair (Senator Day): Are we satisfied that this should be closed following counsel’s recommendation? Is it agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Congratulations. When you look at the bottom of the page and how many times this committee has been involved in relation to this matter, it’s nice to be able to close it out.

SOR/93-195 — QUEBEC MAPLE SYRUP PRODUCERS’ LEVY (INTERPROVINCIAL AND EXPORT TRADE) ORDER

Ms. Becklumb: Item 10 on the agenda is a very old file. It dates back 23 years to 1994. The issue is simple, but the structure of the enabling legislation is complex, so we have circulated copies of the two relevant orders. They look like this. They look similar. One has a longer title than the other. You might want to refer to those as I go through this.

I apologize that my explanation is a little bit long. If you could please bear with me, I’ll try to summarize the issue here, as well as what has happened over the years.

Jurisdiction to regulate the marketing of an agricultural product is split between the provinces and the federal government. Regulating the marketing of an agricultural product locally within the province is in provincial jurisdiction, but regulating it in international and interprovincial trade is within the jurisdiction of the federal government. So in order to have a single comprehensive marketing scheme for a product, you need cooperation from the two levels of government.

To this end, Parliament has enacted the Agricultural Products Marketing Act, which authorizes the Governor-in-Council to make an order, which in turn authorizes a provincial commodity board that is already regulating the marketing of an agricultural product in the province to also regulate the marketing of that product in international and interprovincial trade.

The agricultural product at issue in this file is Quebec maple syrup. Under provincial legislation, a provincial organization called the Fédération des producteurs acéricoles du Québec, which I will refer to as the Commodity Board, is authorized to regulate marketing Quebec maple syrup within Quebec. Under the Agricultural Products Marketing Act, the Governor-in-Council made the Quebec Maple Sap and Maple Syrup Order — that is the shorter title — which I’ll call the enabling order, and which authorizes the Commodity Board to also regulate marketing bulk maple syrup internationally and interprovincially. In addition, this enabling order authorizes the Commodity Board to fix and collect levies from maple syrup producers.

However, the Commodity Board’s authority is limited by section 3 of the enabling order. Section 3 stipulates that the Commodity Board may only regulate with respect to persons and properties situated in the province of Quebec. So, for example, the Commodity Board can’t regulate Ontario maple syrup producers but they can regulate Quebec maple syrup producers in marketing their product internationally, anywhere in the world.

The Commodity Board exercised its delegated authority under the enabling order to make the second order. This is the Quebec Maple Syrup Producers Levy (Interprovincial and Export Trade) Order. I’ll call this the levy order. In section 3, the levy order requires Quebec maple syrup producers to pay a levy to the Commodity Board. However, it goes on in section 5 to provide that in a case where the producer fails to pay the levy to the Commodity Board, the maple syrup buyer is required to pay that levy to the Commodity Board out of the price it would have paid to the producer.

Section 5 isn’t authorized in law because the definition of “buyer” isn’t limited to persons situated in Quebec. Rather, section 5 purports to impose an obligation on buyers who could be anywhere in the world. That’s the issue on this file.

Here is what has happened. The levy order, including its problematic section 5, was made in 1993. Counsel identified the problem in 1994. It took seven years for the department to agree with counsel’s assessment and eight more years for the Farm Products Council, a federal body responsible for administering the act, to finally agree in 2009 that an amendment to section 5 is necessary.

However, around this time, the Commodity Board was involved in a number of potentially relevant lawsuits. The Farm Products Council indicated that it thought it would be wise to await the outcome of these lawsuits before proceeding by amending the levy order.

While the lawsuits were ongoing in 2012, the Farm Products Council suddenly decided on a new approach to addressing the committee’s concern. It decided that instead of amending the levy order, it would amend the enabling order to expand the Commodity Board’s powers. In 2013-14, the Farm Products Council sent letters to the committee updating it on the progress of this amendment to the enabling order. However, in 2015, the committee was abruptly informed that there had been a miscommunication and that the amendment to the enabling order would be part of a broader legislative review.

The committee asked for the Farm Products Council to provide an explanation for this miscommunication, but the Farm Products Council did not respond to this request. Rather, in 2016, the Farm Products Council proposed another new approach. Specifically, it suggested it would implement one of two possible solutions to address the problem with section 5, but not until certain court proceedings were concluded. Those court proceedings ended in June of this year, and it’s apparent that the outcome of the court proceedings has no bearing on the case in this file.

There are two possible solutions on the table. The first solution that the Farm Products Council is considering is another new solution; they have never suggested this one before. They are considering removing the words “by order” from section 4 of the enabling order. If you look at the words “by order,” you wonder what effect that would have. It appears, based on the interpretation of the Department of Justice, that these words are necessary to trigger the application of the definition of “statutory instrument” in the Statutory Instruments Act.

Based on this interpretation, which the committee has never accepted, if the Commodity Board can impose a levy through some means other than by making a statutory instrument such as the levy order, then the levy won’t be registered under the Statutory Instruments Act, it won’t be published in the Canada Gazette and won’t be scrutinized by the committee.

In other words, it appears that the Farm Product Council’s first proposed solution is to remove the illegal instrument from the committee’s scrutiny.

The second alternative solution that the Farm Products Council is considering is the original one: to amend section 5 of the levy order so that it doesn’t apply to buyers outside Quebec. This would actually address the committee’s concern.

Since 2016, there has been no further correspondence with the Farm Products Council stating which of these two solutions it proposes to implement. The last time this file was before the committee, the committee decided to wait for the outcome of the lawsuits before doing anything. But those lawsuits are now all resolved and they don’t affect the file, so members may now wish to write to the Farm Products Council to ask them which of the solutions they will implement and perhaps steer them towards the one that would address the problem. I don’t know if you want to request a timeline.

Mr. Tilson: I have two questions. First, how are you enjoying your new job?

The second question is: How can we avoid this file being open for another 23 years? This is nuts. I know they are flippant questions, but you have gone through it, and good for you. I wouldn’t want to be in your chair. But, I must confess that there must be a way of speeding up this process.

Ms. Becklumb: There is.

The Joint Chair (Senator Day): The court case impacted on this.

Mr. Tilson: But now, after I don’t know how many years, they said the court cases didn’t mean anything.

The Joint Chair (Mr. Albrecht): Not in this situation.

The Joint Chair (Senator Day): They might have.

Mr. Tilson: There you go, but they said it didn’t matter.

Ms. Borkowski-Parent: I think it was an abundance of caution to make sure that the courts could decide on matters of jurisdiction in this instance.

There is greater context to this. This is not the first commodity board levy order that the committee has seen. Some of you will remember that last December we had Mr. Pellerin from the Farm Products Council appear, which was followed by the appearance of the Deputy Minister of Agriculture to answer the committee’s questions, because many levy orders are problematic.

Since that appearance by the Deputy Minister of Agriculture, the Department of Agriculture has been more involved in the work of the Farm Products Council to try to bring all those levy orders back in line.

That said, that one is specific because it was put on hold indefinitely until the court proceedings were resolved, and the Supreme Court denied leave to appeal in June. So the file has been brought back to you today because the court proceedings are now over. It needs to be pursued, and whether it will be bundled with the rest of the levy orders from many commodity boards is something that we need clarification on.

Mr. Tilson: My question now is: What is your recommendation? How many people can you put on the head of a pin?

Ms. Borkowski-Parent: First, I would ask the Farm Products Council, who then liaises with the commodity boards, what their plan is, because there have been something like five different solutions over the years. What is the plan? Is it removing by order or not? Is it expanding the commodity board’s issues? And I would ask for a timeline.

We are keeping track of the rest of the levy orders to make sure that they are done in a timely fashion. If they are going to bundle this one with the others, we’ll keep track of it in that fashion. If not, we will bring it back to the committee for consideration.

Mr. Oliver: I want to clarify that this levy order was written in the 1990s.

Ms. Borkowski-Parent: Yes.

Mr. Oliver: And when was the first time this committee raised concerns about it?

Ms. Becklumb: 1994.

Mr. Oliver: I have a significant concern. There have been some egregious examples of not addressing appropriately raised concerns by this committee. This is right in there with the worst of them, I think. There have been delays, and it sounds like a number of them are related to this organization. I’m wondering if we don’t need to show our teeth more than just simply another passive request.

Our ultimate authority is to suspend. What is that word?

Ms. Borkowski-Parent: It would be for the committee to table a report recommending the revocation of section 5, in this instance, which is unauthorized.

Mr. Oliver: Our peers in this committee’s life have been at this since 1994. It’s still sitting here as originally flagged in 1994, unaddressed. Maybe this is too extreme — I haven’t been on the committee for a full year yet — but I am wondering if we shouldn’t say that unless this is resolved within a set period of time, we will exercise our authority to revoke the section.

Ms. Borkowski-Parent: The first step would be sending a notice of disallowance, which signals that 30 days after the notice is sent —

Mr. Oliver: I don’t think we should do that. I think we should say that if we don’t have an immediate acceptable response to this problem within the next six months, that will be our step. There is one last go here to get this addressed. Maybe that’s too extreme, but this is egregious.

Mr. Harvey: I don’t completely agree with you, John, on the specific case. It’s important to add context to the reason why it’s dragged on as long as it has. The Quebec Maple Syrup Producers Association sets the world price for maple syrup. There are only a handful of maple syrup producing jurisdictions in the world. They are all in Eastern Canada or the eastern United States, but the Quebec board sets the world price.

Probably the reluctance of the Farm Products Council to move on this in a timely manner, especially with associated legal proceedings they could have deemed to be possibly relevant, is that it could affect the global price for maple syrup. It’s a very sensitive issue.

I know producers in the Maritimes also have their price set off the Quebec price. If that board’s inability to recognize the true value of that product, because somebody wasn’t paying their levies, dropped the price, that would affect a lot more people than just the producers within the jurisdiction of Quebec.

Probably the appropriate course of action would be to do what was originally suggested, which would be to ask for a follow-up with the commission to see what their next intention would be.

The Joint Chair (Mr. Albrecht): I like Mr. Oliver’s idea, but if I read this correctly, one of their possible solutions was to remove section 5 or to amend it. If we could have strong language that we expect that to happen and, barring that, our next steps will be to disallow, I would be totally in support of Mr. Oliver’s motion.

That would also take into consideration Mr. Harvey’s concern that it puts it back in their court. They did suggest this as one of the options. Let’s move on one of them and get it done. That’s my opinion.

The Joint Chair (Senator Day): Now that the court case is behind us, counsel has recommended: “What are you planning to do and we’ll give you a short period of time to let us know?”

Ms. Becklumb: Right.

Mr. Diotte: The strongest possible approach should be appropriate given it has been 23 years. There are a million different excuses for why that has been, but it’s time to get moving.

Mr. Oliver: I want to confirm. Of the 13 reasons we can act as a committee, which one does this fall under?

Ms. Borkowski-Parent: It does not follow the enabling authority.

Mr. Oliver: As I understand this committee’s work, and you have raised very valid points, but still, you can’t have a lower-order document or this order being inconsistent with the enabling legislation, or you end up with unenforceable regulations and orders.

I do think it has to be fixed. The fact that it has been left this long is quite significant. At the same time, they can’t jeopardize that very delicate market you have described. Giving them time to amend section 5 but showing our teeth is still the right answer. Otherwise, it just continues on.

The Joint Chair (Senator Day): Do you want to put that in the form of a motion?

Mr. Oliver: Do I have to? It would be that the committee write back requesting amendments to section 5 of the levy order and that the committee is considering — what is the word again, sorry?

Ms. Borkowski-Parent: Disallowance.

Mr. Oliver: That, given the extended period of time, the committee would be forced to consider allowance. I wonder if a time frame is needed given the sensitivity of the market. Should we give them a year? Is that too much? Six months?

Ms. Borkowski-Parent: I just don’t want members to have the impression that the market is going to collapse after this.

The fee-setting provision is fine. They can still enforce the payment of levies. It’s who pays the levies when the producer does not provide the levies themselves.

Mr. Oliver: Is six months reasonable?

The Joint Chair (Senator Day): That would put us right into maple syrup time.

The Joint Chair (Mr. Albrecht): The notes on page 3 clearly indicate that the council was considering this in 2002 already; 15 years ago, they were planning on doing it. This is just giving them that extra little nudge.

The Joint Chair (Senator Day): Mr. Oliver has moved that we contact the people with whom you have been corresponding, counsel, and indicate to them that we are anxious to have this matter resolved. The court case is behind us.

You had mentioned specifically that section 5 should be amended, so let’s see how they propose to amend it. We would expect it to be concluded within six months.

Is that the motion? All those in favour? Contrary minded, if any? Motion carried. Thank you.

We will move on to Item 11 on our agenda, under the heading “Progress (?)”.

SOR/2001-34 — REGULATIONS AMENDING THE EXPORT PERMITS REGULATIONS

SOR/2003-216 — Regulations Amending the Export Permits Regulations (Miscellaneous Program)

(For text of documents, see Appendix J, p. 25J:1)

Ms. Becklumb: Two amendments were promised in 2004. One would address an English-French discrepancy, and the other would address a problem that the regulations don’t prescribe information that must be furnished in an application for a permit; rather, they give the minister discretion to decide on a case-by-case basis what information a person must furnish.

Thirteen years have now elapsed, and the amendments have yet to be made. You can see in the committee note a summary of the various reasons for delays over the years.

In its latest letter, dated January 17, 2017, the department indicates that other priorities will be completed before the promised amendments can be made. However, according to the department, progress on the amendments is expected to be made within the next 12 months. It’s not clear what “progress” means in this context.

The Joint Chair (Senator Day): I thought it was January 17.

Ms. Becklumb: That was the letter.

The Joint Chair (Senator Day): Within a year of January of this year.

Ms. Becklumb: Time is just about up.

The Joint Chair (Senator Day): Do we wait for January or do we do something now? We could send a short note saying we anticipate having this matter resolved by January, as they had indicated in their letter to us on January 17 this year.

Ms. Borkowski-Parent: Not so much “resolved” as “progress will be made.”

The Joint Chair (Senator Day): Progress on the amendment.

Ms. Borkowski-Parent: It could be prepublished in Part I. There’s no indication of what that means, but I don’t think it means it will be resolved within one year.

The Joint Chair (Senator Day): We can assess the progress and determine that once we hear back from them. Is that the satisfactory approach?

Mr. Tilson: They are going to tell us what they have done in the last year; is that what you’re saying?

Ms. Becklumb: That’s the suggestion that was put out.

Mr. Tilson: Okay.

The Joint Chair (Senator Day): Is everybody okay with that? This is a push. Okay, that’s the approach we’ll take, then.

[Translation]

SOR/2001-532 — TELECOMMUNICATIONS APPARATUS REGULATIONS

(For text of documents, see Appendix K, p. 25K:1.)

Ms. Borkowski-Parent: The issue here was non-compliance with the enabling legislation, since section 3 of the regulations did not indicate which telecommunications apparatus or categories of apparatus required the acceptance certificate, as stipulated in paragraph 69.4(1)b) of the Telecommunications Act. The question became largely theoretical when paragraph 69.4(1)b) was repealed in 2014 to make way for a ministerial power. The fact remains that the regulations, which are now obsolete and have no application, are still in the legislation until repealed.

In June 2016, the department indicated that it would use the miscellaneous amendments process, yet the repeal of the regulations was not part of the miscellaneous amendments regulations published in the spring of 2017.

When asked, the department said that they are now in a position to submit a recommendation to the Treasury Board Secretariat in the 12 to 18 months following the letter of August 11, 2017.

I would normally end my comments there, yet there is something very troubling about the department taking about four years after amending the legislation to repeal regulations that are obsolete. Either the committee could choose to continue waiting on this file, which dates back to 2014, or it could use other powers at its disposal to consider disallowing the regulations since they are obsolete.

[English]

Mr. Diotte: I think this is another example of a body just not caring what the committee thinks. I would certainly support saying that it should be done within six months or it will be disallowed.

The Joint Chair (Senator Day): In this case, what we’re looking for is the repeal of something that doesn’t apply any longer.

Ms. Borkowski-Parent: Correct, because there is no longer any enabling authority.

The Joint Chair (Senator Day): Maybe that’s a way to get it off the books, for us to disallow it. Maybe that’s what they are waiting for.

Mr. Tilson: Why did it take six months? Let’s do it tomorrow.

The Joint Chair (Mr. Albrecht): Two weeks.

The Joint Chair (Senator Day): Shorter time?

The Joint Chair (Mr. Albrecht): Sure.

Ms. Borkowski-Parent: Shorter time for them to repeal, or the committee will consider disallowance?

The Joint Chair (Senator Day): To take steps.

Ms. Borkowski-Parent: Okay.

The Joint Chair (Senator Day): Three months?

The Joint Chair (Mr. Albrecht): Three months.

Mr. Oliver: Just a question. I don’t want to stall the committee, but disallowance, what’s the process?

Ms. Borkowski-Parent: First, there is the notice. Nothing can happen before 30 days after a notice is sent. Then the committee would table a report.

Mr. Diotte: It takes four years.

Mr. Oliver: I should have brought my manual.

The Joint Chair (Mr. Albrecht): I thought you had it memorized.

Ms. Borkowski-Parent: Oh, no, the chart is not there anymore.

Mr. Oliver: Does it tie up the house? Does it get in the way of the house agenda or the house work?

Ms. Borkowski-Parent: The committee would table the report. Then, the minister might elect to table a motion to decline the report.

In this instance, I’m not sure — I mean, the regulations are spent. They have no application. If there is no motion by the minister to not adopt the report, then the report would be adopted. In the Senate, 15 sitting days or 35 calendar days, or, in the house, 15 sitting days. Once the disallowance report is adopted, the regulation maker has 30 days to revoke.

Mr. Oliver: So there is no debate.

Ms. Borkowski-Parent: Unless there is a ministerial motion, no.

Mr. Oliver: I think we should move on with the recommendation.

The Joint Chair (Senator Day): I think there is consensus that we give them three months to take some action here. If not, then we’ll consider other things.

[Translation]

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

(For text of documents, see Appendix L, p. 25L:1.)

Ms. Becklumb: Counsel raised four issues regarding these regulations in 2009, three pertaining to inconsistencies between the French and English versions, and the fourth pertaining to an unnecessary section, which the administration has agreed to repeal.

The amendments were supposed to have been pre-published in Part I of the Canada Gazette in 2010. Publication was delayed a number of times for various reasons, notably because the regulations were completely reworked, other consultations had to be held, and there were changes in senior management.

In 2013, we were expecting the amendments to be published in 2014. In October 2014, the consultations took longer than expected and publication was delayed once again. In 2015, the administration confirmed that it had grouped the promised amendments with other, more complex, amendments. The amendments were then supposed to be published in mid-2016. Publication was then postponed until the fall of 2016. At the beginning of 2017, the administration indicated that the interest generated by the more complex amendments had led to unexpected delays. Pre-publication in the Canada Gazette is now scheduled by the winter of 2018. We do not know, however, if that means the winter that will have begun by the start of 2018, which is in two months, or the winter that will begin at the end of 2018, which is in 14 months.

How does the committee wish to proceed?

[English]

The Joint Chair (Mr. Albrecht): I would recommend that we say January of 2018.

The Joint Chair (Senator Day): Okay.

The Joint Chair (Mr. Albrecht): Winter 2018.

I’m wondering if they’re just intentionally being vague with the weather.

The Joint Chair (Senator Day): I would assume so, giving themselves as much flexibility as possible. We want to tighten that up and say that we anticipate progress by January.

Ms. Borkowski-Parent: So prepublication by January?

The Joint Chair (Mr. Albrecht): January 31.

The Joint Chair (Senator Day): It is interesting that the committee considers it unnecessary that they do one of the steps that they are proposing to do. This is the reverse. You have got it down here under “Background,” “repeal section 32,” which the committee — that’s us — considers unnecessary.

Ms. Becklumb: No, section 32 unnecessary, not the repeal.

The Joint Chair (Senator Day): Not the repeal?

Ms. Becklumb: The repeal is necessary because the provision is unnecessary.

The Joint Chair (Senator Day): Good. I misread that.

Ms. Becklumb: Sorry about that.

The Joint Chair (Senator Day): Are we in agreement that we fire a shot across their bow and tell them that we’re expecting something in January, that we interpret winter 2018 as January of 2018?

We seem to have consensus on that one. Thank you.

Next is Item No. 14.

SI/2016-32 — BANFF NATIONAL PARK OF CANADA SIKSIKA NATION CASTLE MOUNTAIN LAND AND TIMBER CLAIM SETTLEMENT AGREEMENT RENT AND FEE REMISSION ORDER

(For text of documents, see Appendix M, p. 25M:1.)

Ms. Borkowski-Parent: In this case, in order to qualify for the remission under the order, the lessee or licensee had to meet the definition of “Siksika entity.” The French and English versions of the definition didn’t seem to be in line, however, and as both are of equal authority in law, Parks Canada was asked to make an amendment. It appears that the English version was taken from a settlement agreement and cannot be amended. Therefore, it is the intent of Parks Canada to amend the French version of the order through Miscellaneous Amendment Regulations or “as soon as a suitable regulatory opportunity presents itself.” Of course, there is no timeline associated with that.

The Joint Chair (Senator Day): Do we want to put a timeline on it, or do we want to wait to review this every four months? We will bring it back if you’re starting to get anxious?

Mr. El-Khoury: Let us wait a couple of months.

Ms. Borkowski-Parent: We received the letter in January, so we could follow up as to where they are at now and ask for a timeline.

The Joint Chair (Senator Day): Yes, ask them for a timeline.

Are we okay with that?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Okay, thank you. There is consensus on that.

[Translation]

SOR/2017-134 — REGULATIONS AMENDING THE MACKENZIE VALLEY LAND USE REGULATIONS

(For text of documents, see Appendix N, p. 25N:1.)

Ms. Borkowski-Parent: Under “Action Taken,” SOR/2017-134 made it possible to remove a basic rule from a form in the schedule that was not in the body of the regulations. Four typographical errors were also corrected. The files for SOR/2017-128 and SOR/2017-134 can therefore be closed.

Finally, under “Regulations presented without comment,” counsel reviewed 21 regulations that meet the committee’s 13 review criteria.

[English]

The Joint Chair (Senator Day): Your recommendation is that we close the file?

Ms. Borkowski-Parent: For Item No. 15, yes, everything has been fixed. We could close both files. We would normally close the 21 “no comment” files as well.

The Joint Chair (Senator Day): We’re closing a file.

Mr. Di Iorio: Wow.

Mr. Oliver: That’s two we’ve closed today.

SI/2016-21 — CERTAIN UNAUTHORIZED PAYMENTS IN RESPECT OF TRAVEL EXPENSES AND OTHER EXPENSES, ALLOWANCES AND BENEFITS (CANADIAN FORCES) REMISSION ORDER

SI/2016-44 — Proclamation Giving Notice of the Entry into Force on June 26, 2015 of the Annexed Supplementary Convention intended to replace the Convention between Canada and New Zealand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income

SI/2016-45 — Proclamation Giving Notice of the Entry into Force on December 12, 2015 of the Annexed Supplementary Convention, entered into on November 18, 2014 and intended to alter the Convention between Canada and Spain for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital

SI/2016-71 — Proclamation Giving Notice that the Agreement on Social Security between the Government of Canada and the Government of the People’s Republic of China Comes into Force on January 1, 2017

SI/2017-17 — Order Acknowledging Receipt of the Assessments Done Pursuant to Subsection 23(1) of the Act

SI/2017-19 — Order Fixing the Day after the Day on which this Order is made as the Day on which Part 1 of An Act to amend the Canada Pension Plan, the Canada Pension Plan Investment Board Act and the Income Tax Act Comes into Force

SI/2017-25 — Office of the Governor General’s Secretary Exclusion Approval Order

SI/2017-26 — Government of Grenada Remission Order

SI/2017-27 — Order Fixing the Day on which this Order is made as the Day on which Division 6 of Part 3 of the Act Comes into Force

SI/2017-28 — Order Fixing July 12, 2017 as the Day on which Certain Provisions of the Act Come into force

SI/2017-29 — List of Wildlife Species at Risk (referral back to COSEWIC) Order

SI/2017-30 — Order Acknowledging Receipt of the Assessments Done Pursuant to Subsection 23(1) of the Act

SI/2017-31 — Order in Council Repealing the Coming into Force of the Private Right of Action dispositions of Canada’s Anti-Spam Law

SI/2017-32 — Order Fixing the Day on which this Order is made as the Day on which Certain Provisions of the Act Come into Force

SI/2017-33 — Order Fixing the Day on which this Order is made as the Day on which Section 12 of the Act Comes into Force

SI/2017-24 — On-Reserve Housing Ministerial Loan Guarantee Remission Order

SI/2017-35 — Remission Order In Respect Of Fees Paid By Certain Foreign Nationals for the Processing of Applications for Temporary Resident Permits, Work Permits and Restorations of Temporary Resident Status

SI/2017-36 — Remission Order in Respect of Fees for the Replacement of Passports, Permanent Resident Cards and Citizenship Certificates Whose Loss, Damage or Destruction Resulted from the Wildfires in Fort McMurray and Surrounding Areas in Alberta in May 2016

SI/2017-37 — Order Fixing August 1, 2017 as the Day on which the Act Comes into Force

SI/2017-40 — Order Designating the Minister of Infrastructure, Communities and Intergovernmental Affairs, to be the Minister for the purposes of the Act

SI/2017-41 — Proclamation giving notice of the entry into force on August 1, 2017 of the Agreement between the Government of Canada and the Government of the French Republic on Social Security and the Implementing Agreement concerning the Agreement between the Government of Canada and the Government of the French Republic on Social Security

The Joint Chair (Senator Day): With this list of 21 “Statutory Instruments Without Comment,” colleagues, it appears that counsel have looked over these regulations.

Ms. Borkowski-Parent: Yes.

The Joint Chair (Senator Day): And no comment is necessary?

Ms. Borkowski-Parent: Correct.

The Joint Chair (Senator Day): That shows what you’re doing behind the scenes.

Is there anything further to bring before this meeting? When it our next meeting?

Ms. Borkowski-Parent: November 23.

The Joint Chair (Senator Day): The meeting is concluded. Thank you.

(The committee adjourned.)