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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue No. 8 - Evidence - October 20, 2016
OTTAWA, Thursday, October 20, 2016
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:33 a.m. for the review of statutory instruments.
Senator Pana Merchant and Mr. Harold Albrecht (Joint Chairs) in the chair.
The Joint Chair (Mr. Albrecht): Committee members, before we get into the actual agenda before you, I have one quick question to ask your opinion on. It relates to dates of meetings. Senator Merchant will not be here between November 2 and 9, and that's a week on which we are scheduled to meet. I'm happy to defer the meeting to the following week or the earlier week so that she can be here, or we can have the vice-chair fill her position during that week. Is there any preference on the part of the committee?
Senator Runciman: I don't see any problem with having the vice-chair serve in that capacity.
Mr. Chair, when you're finished with that, I have one other comment I'd like to make.
The Joint Chair (Mr. Albrecht): Is there general agreement that we simply have the vice-chair meet and that we continue the bi-weekly meetings?
Mr. Genuis: I'm away that week as well, so, if possible, to defer it is easier for me. I'm happy to have the vice-chair, as well. I don't have a problem with that, but it does work better for my schedule.
Mr. Brassard: If we don't have a meeting, will it cause Parliament to shut down? Let's defer.
Senator Runciman: If you get into the business of deferring meetings when one or two members are not going to be able to be here — there's something called substitutes as well.
The Joint Chair (Mr. Albrecht): Right.
So is there general agreement that we will continue to meet? I realize that we have a few members who won't be here, but I think there's general agreement and consensus that we will meet during that week and that you'll find alternates to fill your positions.
I see nodding of heads. I don't see any opposition.
All right, let's proceed.
Senator Runciman: You and your co-chair may be planning to comment on this, but in case you're not, I was just told that Mr. Bernhardt has retired. I thought that the committee should draft a letter, signed by the joint chairs, commending him for his years of service and the significant contribution he's made to the work of this committee.
The Joint Chair (Mr. Albrecht): Thank you, Senator Runciman. My memory of the last week's meeting is that that is in progress.
Senator Runciman: Okay, I missed that.
The Joint Chair (Mr. Albrecht): It's being done.
Senator Runciman: I didn't get a substitute; I apologize.
The Joint Chair (Mr. Albrecht): Thank you for raising that. I think it's better that it be raised multiple times than all miss it. I appreciate that.
DOCUMENT RELATING TO THE APPEARANCE OF WITNESSES FROM THE CANADIAN FOOD INSPECTION AGENCY ON JULY 16, 2016 (PART 2)
Evelyne Borkowski-Parent, Acting General Counsel to the Committee: You will find under Item 1A the second document provided by the Canadian Food Inspection Agency further to the appearance of agency officials in June 2016.
The document has two parts. The first part pertains to the agency's fee remissions policy, while the second part provides an update on the 38 agency files before the committee.
First, as to the remissions policy, this policy was requested following the review of SI/2008-85, the analysis of which is under Item 1B.
SI/2008-85 — CERTAIN FEES RELATING TO EXPORT CERTIFICATES REMISSION ORDER
There are in fact two remission powers, a general power vested in the Governor-in-Council in application of the Financial Administration Act, and a more specific power for the remission of fees, vested in the minister pursuant to the regime of the Canadian Food Inspection Agency Act.
It is a long-established principle in law that a more recent and more specific law takes precedence over a general law. The three orders under Item 1B were made by the Governor-in-Council under his general order-making power. The agency was asked to explain the reasons for this choice and, in her appearance, Ms. McGuire stated that the agency was developing a fee remissions policy that would help determine the cases where the power should be exercised by the minister or by the Governor-in-Council.
I had the opportunity to speak to agency officials last Friday, and the policy in question is in the process of being approved. It will be provided to the committee once approved.
As for the update on the 38 files, if we break down the numbers, the Safe Food for Canadians Regulations would affect amendments awaited on 16 files. The agency's latest estimate is that the Safe Food for Canadians Regulations are expected to be prepublished at the end of this calendar year and enacted by the end of 2017.
Amendments expected on eight other files are to be made in a miscellaneous amendments regulation package prepared by the agency and expected to be enacted in the spring.
There are a number of files, however, for which a substantive answer has never been provided by the agency, notably on SOR/94-718, the Fresh Fruit and Vegetable Regulations, which raised 89 questions. While these regulations are expected to be repealed after the enactment of the Safe Food for Canadians Regulations, the agency now mentions that 11 issues will not be addressed under this initiative. This is news to the committee, as the correspondence sent thus far by the agency on this file was void of any substance. Since the agency seems to have gone through the trouble of sorting through issues and determining whether they would affect amendments or not, it might be worth asking the agency to specify the 11 issues that are not included in the regulations and, most importantly, why.
As for the other files, if the committee is satisfied with the time frames that have been provided in the table, counsel could monitor, as per the deadlines specified, and report on progress.
The Joint Chair (Mr. Albrecht): Is there any response from committee members?
Senator Runciman: So moved.
The Joint Chair (Mr. Albrecht): Moved that we simply allow this process, including waiting up until 2018 for some of the responses?
Ms. Borkowski-Parent: I suggest that we follow up on progress to make sure that the deadlines are met or at the very least updated, and write a letter on fruits and vegetables so that we know which issues are not going to be addressed.
The Joint Chair (Mr. Albrecht): On SOR/94-718, their response is that the anticipated progress is post-2018. Our big concern is that that's too late.
Senator Runciman: But counsel is suggesting they're going to monitor this and bring concerns back to the committee. That's the way I understood it.
Ms. Borkowski-Parent: Sorry, except on this file, where some answers need to be provided.
Senator Runciman: Yes.
The Joint Chair (Mr. Albrecht): Does everybody understand the motion that we're going to allow the process to continue but that there will be follow-up on this one particular item?
Mr. Genuis: Can I suggest that, during the timeline, we communicate our willingness to call witnesses, that we not proceed to that step yet, but that we communicate that that is an option we would consider as the file proceeds?
The Joint Chair (Mr. Albrecht): Is there any opposition to that being telegraphed to the department? I don't see any. All in favour of proceeding in that manner, raise your hand? Opposed? Carried.
(For text of documents, see Appendix A, p. 8A:1.)
Ms. Borkowski-Parent: The Department of Justice has made changes to the layout for the consolidation of federal acts and regulations. As a result of these changes, the marginal notes have been moved into the body of the legislation and now appear as headings.
The Joint Chair (Mr. Albrecht): Just for clarification, I said 1B. Did we deal with 1B in the other matter?
Ms. Borkowski-Parent: Yes, we did; I'm sorry. I'm on agenda Item 2, Marginal Notes moved as headings.
Under Canadian law, headings and marginal notes do not have the same probative value. Whereas headings are considered to be part of the body of the enactment and can be used for interpretation purposes, marginal notes may not be used for interpretation of the legislation because they are not part of the enactment voted on by Parliament.
The department maintains that, although the location of the notes has changed, their probative value remains unchanged by virtue of section 14 of the Interpretation Act. The fact remains, however, that marginal notes appear in the margin by definition. If the note is in the body of the enactment, it becomes a heading and a citizen might refer to it as such.
In his second letter, the Chief Legislative Counsel of the Department of Justice refers to the powers set out in the Legislative Revision and Consolidation Act to justify this change. It is true that section 28 of this act gives the minister some leeway in the layout of acts. The act does not, however, give the minister the power to incorrectly present passages that are not part of the legislation as being part of the legislation.
The department no doubt had good intentions, but that does not change the fact the approach taken to marginal notes was inappropriate and likely contrary to the law. In short, in order to change the location of marginal notes, it would be necessary to amend the Interpretation Act and the Legislation Revision and Consolidation Act, or even both of them.
The last letter from the Chief Legislative Counsel states only that the committee's arguments will be taken under advisement.
The Joint Chair (Mr. Albrecht): Is the committee satisfied that he acknowledges the point but says they will take our point under advisement," basically saying nothing is going to happen?
Mr. Genuis: This is crazy to me. It's just absolutely crazy. It's unacceptable. I'd be curious for the feedback of other committee members as to exactly how we should proceed, but this is not acceptable, period, from my perspective.
Senator Moore: I agree. Who comes up with this stuff? We've been doing it this way for 150 years, and the Canadian public understands when they pick up a statute. Why would they do that? I understand that sometimes a new government wants to change things, but these are fundamentals that should not be tinkered with. So I think we should be very firm on this. I agree with Mr. Genuis.
Ms. Borkowski-Parent: I think the reason was so that visually, in the electronic version, the columns would be wider because you wouldn't have the marginal notes. That's the explanation we were provided with. So it would make it easier to read. That's the only explanation I was given.
The Joint Chair (Mr. Albrecht): I see general agreement that we do want to
Mr. Brassard: So he's going to take it under advisement, which means to say, "Thanks a lot, but we're going to keep doing it." What recourse do we have? Other than the typical perpetual letter-writing campaign that we do on this committee, what recourse do we have, legal or otherwise, in this situation?
Ms. Borkowski-Parent: The committee has the same powers as other committees, that is, to bring in witnesses, table a report and ask for a global response from the government on this issue.
There's obviously nothing to disallow. It's not a regulation. Those are the committee's powers.
The Joint Chair (Mr. Albrecht): So call in witnesses or do a report to Parliament.
Ms. Borkowski-Parent: Or write to the minister.
Mr. Brassard: This is a fundamental change to the way that things have been done in the past, and I think we should exercise some of our powers in this situation to maintain what has typically been past practice in this situation, Mr. Chair. That's going to be my suggestion to the committee. If you need a motion —
The Joint Chair (Mr. Albrecht): Let's have a little more discussion before we go to a motion.
Mr. Genuis: Given the importance of this, we should send a letter to the minister right away. This deals with something pretty fundamental in terms of law and Canadians' understanding of it, so I think the minister needs to be aware of this right away. I think we should draft a simple report in preparation for the possibility of tabling. Of course, whether or not we proceed with tabling will depend on the subsequent decision of the committee to do that or not and what kind of response we get back from the department and the minister.
I see it as relatively time sensitive, as well, that this correction be made. Beginning the process of the preparation of a simple report explaining the item that we could table would position us well to move forward in a timely way in the future.
The Joint Chair (Mr. Albrecht): Mr. Brassard, are you prepared to make your motion? I don't see anyone else asking for the floor.
Mr. Brassard: I'm going to move what Mr. Genuis suggested, that we send a letter to the minister. I'm sure counsel can come up with the content of the letter. At a minimum, we need to send a letter to the minister and send a letter to the department to suggest that in our view this practice needs to continue in the manner in which it has operated in the past.
The Joint Chair (Mr. Albrecht): Am I under the impression that the letter would go under the signature of the co- chairs or from the counsel?
Mr. Brassard: I would say from the joint chairs.
The Joint Chair (Mr. Albrecht): So we have a motion that a letter be sent to the minister, signed by the joint chairs, indicating our wish that this be resolved.
All in favour? I don't see any opposition. Thank you very much.
SOR/2001-390 — FORM OF PROXY (BANKS AND BANK HOLDING COMPANIES) REGULATIONS.
(For text of documents, see Appendix B, p. 8B:1.)
Ms. Borkowski-Parent: As the note prepared for you today explains, the committee raised the matter of outdated cross references in their regulations, following the enactment of the Canada Business Corporations Regulations of 2001.
Following the April 24 meeting, the joint chairs wrote to the minister in the hope of getting a clearer explanation as to why the required amendments were taking so long to make, considering they appeared to be of a fairly routine nature.
The minister's response has at least the benefit of providing clarity to the situation. It appears that because national instruments are incorporated by reference in the Canada Business Corporations Regulations of 2001, having a cross- reference to the latter, which then has a cross-reference to the former, would be rather convoluted, which is a fair point. That said, it bears questioning why this is the first time, over the last decade, that this has been invoked as an explanation.
As the department is now considering various approaches to solve this issue, no time frames were provided, other than that they might be considered in the context of the financial sector legislative review announced in Budget 2016.
The Joint Chair (Mr. Albrecht): Committee members, what is your wish?
Mr. Genius: I think we need to continue moving this forward, insisting on action. I don't see it as a candidate for the particularly strong responses that we have recommended on some of the other items, given the complexity and the relative importance of it, but I think we should write back and insist on further action in terms of the concerns we have.
The Joint Chair (Mr. Albrecht): For clarification, the minister has responded that they are going to deal with it. My opinion is that there's just no date; there's no timeline. Is that what you're asking for, a definite timeline as to when they respond?
Mr. Genius: Yes.
The Joint Chair (Mr. Albrecht): I see general agreement around the table. All agreed? Any opposition? Carried.
SOR/2006-242 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS.
(For text of documents, see Appendix C, p. 8C:1.)
Shawn Abel, Counsel to the Committee: There are three outstanding issues on this file. When it was last before the committee some time ago, two rounds of correspondence were exchanged between the chairs and the Minister of Industry at the time. One of these issues simply involves a promise to amend the French version of sections 6(7)(a) and (b) of the regulations. Although the regulations have been twice amended, the matter was not addressed in either of those packages. Presumably the department should be asked why that wasn't done.
With respect to subsection 3(2) of the regulations, the committee previously considered that the discretion granted to the minister under this provision should be removed. Subsection 3(2) states that the minister may refuse to add a patent to the patent register or refuse to delete it if that patent does not meet the criteria set out in the regulations for being on the register.
As explained in the note prepared for members today, departmental correspondence, in conjunction with judicial treatment of this provision, made it clear that the discretion afforded under 3(2) shields the minister from judicial review. In essence, a decision that can be demonstrated to be wrong in fact is generally not reviewable. The department has always strongly preferred to maintain this discretion, essentially for the reason that the minister's decision is hard and that there should be, therefore, some leeway to make, essentially, a wrong decision.
When the chairs wrote the first time to the minister, it was explained that this sort of reasoning does not render a grant of discretion necessary. The minister must still at some point actually arrive at a determination, whether the criteria are met or not, before exercising discretion as to whether to act on that conclusion. The minister's reply served to confirm that the discretion only exists to insulate the decision from review.
At the behest of the committee, the chairs wrote again to the minister. The minister's response of February 7, 2011, emphasized that the discretion is only available where criteria for the register are not met, but it's unclear why that should be a point to be emphasized.
Firstly, the discretion granted relates to and insulates that very determination, whether or not the criteria are met. That was the basis for the department's explanation as to why the discretion was desired.
Secondly, if it is proposed that this discretionary power is somehow limited, that it can only be exercised after it has been determined that the patent does not meet the criteria, no justification has ever been provided as to why the discretion would be necessary. Why should a patent that does not meet the criteria be added anyway to the register or not be removed from the register?
The minister's letter also noted that the decision still remains reviewable by the courts, but this is beside the point. The committee never suggested that judicial review was entirely foreclosed. The real problem is that the scope of review before the courts is severely constrained. This constitutes a considerable exclusion of the jurisdiction of the courts. The committee has always taken the view, as reflected in its sixth criterion, that subordinate legislation ought not to exclude the jurisdiction of the courts without express enabling authority, and in this case that authority does not exist.
Moving on to section 7 of the amending regulations, this transitional provision sought to relieve certain drug manufacturers from the requirement to file extra submissions in relation to an application in response to events that took place after the application had been submitted. The amended regulations remove this requirement for any new applications made under the new regulations. The transitional provisions sought to do the same for any application that was still outstanding at the time that the new regulations were put into place.
The way that the transitional provision functions is by deeming the filing date of all outstanding applications to be the date of the coming into force of the new regulations. For legal purposes, it's as if the applications had never been submitted in the past but on the coming-into-force date had essentially all been dumped at the minister's door.
There is a strong presumption that subordinate legislation does not apply retroactively. As a consequence, express enabling authority is required to do so. There is some argument as to whether new legislation can be applied to outstanding matters at the time of its coming into force and going forward from that date. This is generally referred to as a retrospective effect. However, in this case, the method chosen for the transitional provision is unambiguously retroactive. Section 7 reaches back into the past and changes a past legally significant event in order to effect different consequences.
As set out in detail in the note, the chairs wrote twice to the minister on this matter, conveying the committee's view that section 7 appears to be ultra vires. In the first reply, the minister argued that deeming something to have happened a different way does not actually change it. The committee concluded instead that the opposite was true. The minister's second reply did not provide any further real justification for the approach taken here. The letter asserted, without further explanation, that section 7 does not change the filing date, which is plainly untrue.
I should note that the letter also took exception to the alternate solution suggested by the committee, that section 7 could have applied the new regulations to outstanding applications simply by saying so. The minister's reply asserted that this would truly have a retroactive effect. There's no way that could be true, but it could be considered a retrospective effect, and it's possible that that, too, could be considered unauthorized.
At the end of the day, it's open to members as to whether they wish to take another crack at this problem. The effect of the transitional provision is minor, and it is also beneficial. It merely relieves an applicant of one obligation. A considerable amount of time has passed since these regulations came into force, and presumably any application that might have been affected has long been resolved.
The provision has been considered by the courts, and it does not appear that any validity concerns were raised by any of the parties.
While not accepting that the point would be conceded, it may not be worth it to the committee to continue to proceed in this matter.
To sum up this point, the promised amendment should be followed up on at the least. The matter concerning discretion under subsection 3(2) should be pursued again.
Given that some time has passed since the last correspondence, I would suggest that writing to the department might be appropriate at this point.
The Joint Chair (Mr. Albrecht): Is there any response? Are we all in general agreement with counsel's recommendation, proceed with follow-up, recognizing that, considering the time that has elapsed, it may be better to leave some of the points as they are? All agreed?
Hon. Members: Agreed.
The Joint Chair (Mr. Albrecht): So agreed.
SOR/2008-222 — WAGE EARNER PROTECTION PROGRAM REGULATIONS.
The Joint Chair (Mr. Albrecht): Next is Item No. 5. I've been informed that we are going to remove this item from our agenda simply because some publication has happened in the Canada Gazette.
Do you want to comment on that, counsel?
Ms. Borkowski-Parent: Amendments to the Wage Earner Protection Program Regulations were published in Part II of the Canada Gazette yesterday morning. We will update this file and bring it back at a future meeting.
The Joint Chair (Mr. Albrecht): Thank you for not adding an agenda item but deleting one.
SOR/2009-258 — REGULATIONS AMENDING THE COST OF BORROWING (BANKS) REGULATIONS.
SOR/2009-259 — REGULATIONS AMENDING THE COST OF BORROWING (AUTHORIZED FOREIGN BANKS) REGULATIONS.
SOR/2009-260 — REGULATIONS AMENDING THE COST OF BORROWING (TRUST AND LOAN COMPANIES) REGULATIONS
SOR/2009-261 — REGULATIONS AMENDING THE COST OF BORROWING (RETAIL ASSOCIATIONS) REGULATIONS.
SOR/2009-262 — REGULATIONS AMENDING THE COST OF BORROWING (CANADIAN INSURANCE COMPANIES) REGULATIONS.
SOR/2009-263 — REGULATIONS AMENDING THE COST OF BORROWING (FOREIGN INSURANCE COMPANIES) REGULATIONS.
(For text of documents, see Appendix D, p. 8D:1.)
Mr. Abel: There were three matters raised regarding these instruments. One of these issues was addressed by SOR/ 2016-142. Matters remain outstanding in relation to vague language used in connection with two requirements concerning credit agreements that are sent to borrowers.
The joint chairs wrote to the minister on May 4 regarding the department's failure to provide a satisfactory reply. The minister's letter of June 2 indicates that these matters will be addressed by amendments in two separate packages. It remains unclear precisely when those amendments will be made. A new letter to the department could be drafted in that regard.
The Joint Chair (Mr. Albrecht): Should we advise them to draft a new letter and ask for a timeframe response? Are all agreed with that scenario?
Hon. Members: Agreed.
SOR/88-58 — AIR TRANSPORTATION REGULATIONS
SOR/96-335 — AIR TRANSPORTATION REGULATIONS, AMENDMENT
(For text of documents, see Appendix E, p. 8E:1.)
Ms. Borkowski-Parent: As you can see, SOR/88-58 is a longstanding file whose history over the past 10 years is provided in the analysis note prepared for you this morning. This is a striking example of what can happen when a regulatory authority delays amendments requested by the committee until such time as it revises its regulations.
The most recent letter from the Canadian Transportation Agency appears to be another step backwards. While the agency had agreed in 2015 to make the corrections requested by the committee separately from its review initiative, the most recent letter dated June 2016 is rather ambiguous as to the next steps. Referring to the new procedures adopted by the committee at the last meeting, we have reached the stage where the committee could consider calling witnesses.
The Joint Chair (Mr. Albrecht): Considering that this item was first raised before some of our members were born, I think that may not be a bad idea.
Are there any comments from committee members on inviting witnesses? All in favour of asking witnesses to appear before the committee in this regard?
Hon. Members: Agreed.
SOR/2005-62 — CANADA PRODUCTION INSURANCE REGULATIONS
(For text of documents, see Appendix F, p. 8F:1.)
Ms. Borkowski-Parent: There are two aspects to be considered on this file. First, there are a number of amendments, mostly to correct drafting issues, which have been promised by the department. The department's letter of last February only indicates that it would initiate the amendment process in the following months. We are a ways off from a firm time frame, and the department could be asked to clarify.
The second aspect is the unresolved issue of the definition of "risk area" in the regulations. There are a few things to mention in that regard.
First, under section 16 of the Interpretation Act, words used in regulations have the same meaning as in their parent act. Therefore, if Parliament decided to use a term without defining it, the regulations may not define that term unless it is provided for in the act.
Second, it is a misconception to think that omnibus provisions grant the regulation-maker wide powers to regulate on whatever it sees fit. To quote the title of an article recently published in the Statute Law Review, "The Broader the Power, the Narrower the Power."
In this instance, the regulations purport to define a term — risk area — that is used in the parent act. There is no express authority to define, in the regulations, terms of the parent act, as is sometimes seen in other legislation.
The department is relying on its omnibus regulation-making power to make any regulations that the Governor-in- Council deems necessary for carrying out the purposes and provisions of the act.
Although that power appears to be broad, it is in fact fairly narrow. Otherwise it would signify a complete abdication of parliamentary sovereignty.
Although the committee's position is well-supported, as evidenced in the note, the department remains unwilling to amend the act or repeal the definition.
I'm in the committee's hands as to how it wishes to proceed on this matter.
The Joint Chair (Mr. Albrecht): Is there any initial response from committee members?
It seems that the lack of definition of "risk area" could be problematic for some of our agricultural producers across the country, and the discrepancies that haven't been followed up on need to be dealt with.
Ms. Jordan: I have an overall question, because this seems to happen a lot. We have been here for a year now, and how many times do we write letters and they write back?
Our role is to be the watchdog. Do departments not understand that? Do they not take what we do seriously, by continually saying, "Yes, we'll get to it; leave us alone"? How do we move forward with this so that we don't continually have these problems?
We've talked about things like making sure we send letters to the minister. I'm new. Well, it has been a year now, so maybe I'm not so new anymore, but I just don't understand why we continually get this kind of brushoff and people not understanding the role of this committee and what we're charged to do.
The Joint Chair (Mr. Albrecht): Thank you. I appreciate you highlighting those concerns.
Mr. Genuis: I agree with Ms. Jordan completely. I think one possible response is for us to look for an opportunity on a more weighty item to table a report and then seek concurrent debate, which would provide us with an opportunity to speak in the house about the important work of Scrutiny of Regulations. That would draw some attention to it and get some of those points on the record and ask others within our parties to do so.
I particularly think of Item 2 as being a possible candidate for that, depending on the response we get.
As far as Item 8 goes, my view would be that we continue to follow up with the department and that we inform the minister, as well, of the outstanding issue. We can't chalk up every single item to the panic button, but I think this deserves that much attention, at least.
The Joint Chair (Mr. Albrecht): It's fair to point out, though, that the last paragraph on the first page says that "the Department agreed in 2013," and the last sentence says that they're now going to initiate the process. We have no idea as to when they're going to complete the process. I think there is legitimate concern, and thank you for expressing that concerns.
Has the committee agreed that we write a letter from the co-chairs directly to the minister, pointing out our need for follow-up within a particular timeline?
The Joint Chair (Senator Merchant): It says 2013, and then it went on to 2015. It was supposed to be completed by 2015, and that's gone by too, so I think we should do something.
The Joint Chair (Mr. Albrecht): Is there any disagreement with the idea of writing a letter to the minister from the joint chairs and expecting a timeline? I'm prepared to put a timeline on it of three or four months. Is that realistic?
Ms. Borkowski-Parent: For the enactment or for a response?
The Joint Chair (Mr. Albrecht): For a response within two weeks but enactment within a few months, if possible.
I defer to our legal experts. I'm not a lawyer, so I don't want to presume. What's realistic?
Senator Moore: The last sentence on the second page of the letter of February 4 from the department reads:
I have been advised that in the next few months, Agriculture and Agri-food Canada intends to initiate the process for these amendments to be made.
This was back in February, so what has been done? We should know what's been done and when it's going to be completed. We should be looking for that deadline, Mr. Chair, that we're seeking. Otherwise, we're just drifting along and it continues to create the frustration that Ms. Jordan highlighted earlier.
The Joint Chair (Mr. Albrecht): Thank you. I'll look to our counsel on that.
Ms. Borkowski-Parent: On the drafting issues, I know there are currently miscellaneous amendment regulations prepared in various departments. If those issues — and I do not have that information — have been included in such a package, they are expected to come into force in the spring. But at the very least, a time frame should be provided to the committee.
Then there's the matter of how we want to move forward on the issue of the definition of "risk area."
Senator Omidvar: I agree with the suggestion of writing a letter regarding timelines.
The Joint Chair (Mr. Albrecht): We will look to the counsel to use her wisdom in terms of timelines. I think a two- week timeline for a response is reasonable, especially considering that at the last meeting we asked to have electronic versions of the letter submitted when the letter is written, followed by a hard copy. I don't think there's any excuse for no response within a two-week period.
Hon. Members: Agreed.
Ms. Borkowski-Parent: A letter to the minister?
The Joint Chair (Mr. Albrecht): A letter to the minister with an expected response within two weeks, and a hopeful enactment within a reasonable period. I'll leave that up to you.
Ms. Jordan: The question I have, then, is what do we do if we don't have that response in two weeks?
Senator Moore: Bring them in.
Ms. Jordan: There has to be a mechanism to deal with it if there's no response within two weeks.
The Joint Chair (Mr. Albrecht): It would be my hope that our counsel would draw it to our attention at the very next meeting and not wait until six months down the road. I'm sure they will do that on our behalf. Then, I think we need to take action at that point.
Are all agreed with that process?
Hon. Members: Agreed.
SOR/2011-217 — REGULATIONS AMENDING THE NATIONAL HISTORIC PARKS GENERAL REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix G, p. 8G:1.)
The Joint Chair (Mr. Albrecht): Item No. 9 concerns the regulations amending the National Historic Parks General Regulations.
Ms. Borkowski-Parent: This is the last of the Parks Canada files to be discussed before the appearance of witnesses at a future meeting.
The issues in this file pertain to undue discretion of administrative officials. After amendments to address all these issues were promised in 2012, the department advised that these amendments were being drafted as being part of miscellaneous amendment regulations to be completed in 2014.
There was radio silence from Parks Canada, and the last letter seems to indicate that the promised amendments will not be part of miscellaneous amendment regulations after all. In fact, there is no undertaking to amend provided at all in that table.
I suggest we might want to bring that to their attention when they appear in front of the committee.
The Joint Chair (Mr. Albrecht): Could you remind me of the date of that appearance?
Ms. Borkowski-Parent: We do not have a date yet.
The Joint Chair (Mr. Albrecht): Could we establish one?
Ms. Borkowski-Parent: We are working towards that, yes.
The Joint Chair (Mr. Albrecht): I think there's a degree of impatience around the table that we get on with this and deal with it expeditiously.
Senator Moore: With regard to the date of the appearance of the officials, how was that established? Are we waiting on them to set a date that's convenient? How are you doing that?
Ms. Borkowski-Parent: We try to accommodate everyone and provide them with options. If we do not reach an agreement, we'll consider less-diplomatic ways.
Senator Moore: Are we looking at trying to get this done by the end of the month or by the end of this calendar year? What's the thinking?
Ms. Borkowski-Parent: We were definitely thinking of before the Christmas break.
The Joint Chair (Mr. Albrecht): Does the committee want to take action indicating that we actually expect it to happen before the Christmas break, and the power of the committee is behind our counsel when she communicates with the department?
Mr. Genuis: Absolutely.
The Joint Chair (Mr. Albrecht): I think I see general agreement.
So you have our encouragement to request a meeting and a completion of this prior to the Christmas break.
SOR/2015-72 — REGULATIONS REPEALING CERTAIN REGULATIONS MADE UNDER THE FARM INCOME PROTECTION ACT (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix H, p. 8H:1.)
The Joint Chair (Mr. Albrecht): Moving on to Item No. 10 on our agenda, regulations repealing regulations made under the Farm Income Protection Act.
Mr. Abel: This instrument repealed 10 defunct regulations made under the Farm Income Protection Act. It was noticed that the Consolidated Index of Statutory Instruments contained an editorial note purporting to state that 84 such regulations made under the act were officially repealed. All 84 regulations were then dropped from the index.
The English version of the editor's note also contained a strange error in that it began to partially list the registration number, but then it simply cut off. Compounding this strangeness, the Department of Agriculture and Agri-food indicated that the remaining 74 regulations not covered by this instrument were in fact not repealed.
Agriculture did intend to do so by way of a statutory instrument for the whole batch, but apparently it had been advised by Treasury Board that this would violate the one-for-one rule. That rule, of course, requires the repeal of a regulation each time a new regulation is introduced, which would impose an administrative burden. A series of instruments repealing smaller batches of these spent regulations was then planned to be introduced.
At its meeting of May 28, 2015, members decided to write to the department again, pointing out that the one-for- one rule did not seem to apply here. It was asked whether the remaining 74 regulations could not be disposed of more efficiently. The committee also wished to know how and why the editor's note had appeared in the index and why the 84 regulations were then removed. An opinion was also sought as to whether the department believed that a formal repeal of spent regulations is even necessary.
Concerning the fate of the 74 remaining regulations, the department's reply is clear. They will be repealed in a forthcoming miscellaneous amendments package, although it's not indicated when this will be done. This could be taken to implicitly indicate, as well, that the department believes that spent regulations must be formally repealed.
With respect to what happened in the consolidated index, the reply is less illuminating. The department notes that the editor's note and the removal of the 84 regulations was done by the Privy Council Office, which maintains the index. The regulations are still apparently listed in the official legal database maintained by the Department of Justice, which suggests that the editor's note did not amount to an official repeal, and indeed it could not have.
At this point, from the Department of Agriculture, all that seems necessary is a follow-up letter seeking a time frame for the repeal of the remaining regulations. A further inquiry, though, seems warranted with the Privy Council Office as to how the editor's note and the removal of the 84 regulations came to pass in the index.
The Joint Chair (Mr. Albrecht): I want to commend the writer of this report for being exceptionally kind in their analysis: ". . . the Department is somewhat evasive . . . ." That's very kind.
Senator Runciman: On the question of whether a formal repeal is necessary, has counsel taken a position?
Mr. Abel: All the leading authorities indicate that, yes, it needs to be repealed. A spent or obsolete regulation, or even one that's been orphaned by the repeal of its enabling power, still exists even if it isn't in force.
Senator Runciman: I'm curious with respect to the evasive tactics you describe here. I gather that pursuing that falls within our mandate as you interpret it. Should we be getting answers to those kinds of issues as well?
Mr. Abel: To some extent, the mandate is what members wish it to be. Even the criteria set out at the beginning of each session are determined by members of the committee.
The Consolidated Index of Statutory Instruments relates squarely to regulations and statutory instruments. It's only a point of existence. I would suggest that it is the committee's business.
Senator Runciman: You would suggest it is the committee's business?
Mr. Abel: Yes.
Senator Runciman: I have some doubt about that, getting into the operational decisions, but in any event, if the committee has made the decision to pursue that, I think we should follow up. If the committee feels it's that significant with respect to the way that was handled, it might be worth it to at least copy the minister on the letter.
The Joint Chair (Mr. Albrecht): Okay.
Senator Moore: In the letter from the department of March 9, at the bottom of the first page, they write:
AAFC will continue to work with our colleagues to repeal the remaining 74 spent regulations in an expedited manner by using the miscellaneous amendments regulations program.
Can we ask that this will be done in the miscellaneous program in the spring of 2017?
Mr. Abel: It's certainly possible to ask. Would you like us to ask if that's their plan, or to make the suggestion that that's what they should do?
Senator Moore: They should do it. They've indicated they want to, and they've had months.
Mr. Abel: We can certainly do that.
Senator Runciman: It was also a suggestion that we contact the Privy Council Office with respect to this as well, so that should be part of our messaging.
The Joint Chair (Mr. Albrecht): Are there any further comments? All right, so ordered.
SOR/2001-281 — BY-LAW NO. 7 RESPECTING THE LARGE VALUE TRANSFER SYSTEM
(For text of documents, see Appendix I, p. 8I:1.)
The Joint Chair (Senator Merchant): Next on our agenda is Item 11, under "Part Action Taken."
Mr. Abel: An amendment has been made by SOR/2015-185, clarifying that section 51 of this bylaw is not intended to affect civil liability, for which there would have been no authority to do so. Another amendment is now promised in order to set out how the President of the Canadian Payments Association is intended to exercise his or her discretion under section 63. The department indicated that it wished to wait until a new regime concerning the large value transfer system was developed and to consult with stakeholders.
At this time, a further letter could be drafted seeking an update on progress towards making that amendment.
The Joint Chair (Senator Merchant): I see that his started in 2001. It's one of these long-standing issues.
The Joint Chair (Mr. Albrecht): I'm wondering if we could, in addition to the letter, ask for an expected timeline in which a response would be received.
Mr. Brassard: That was going to be my suggestion, Madam Chair, as well, so I agree with Mr. Albrecht.
Ms. Jordan: Why don't we tell them what timeline we want, instead of asking them for one?
The Joint Chair (Mr. Albrecht): That was my assumption —
Ms. Jordan: Good.
The Joint Chair (Mr. Albrecht): — that counsel would put in an expected timeline.
Mr. Brassard: Question mark, exclamation point.
The Joint Chair (Senator Merchant): Agreement?
Hon. Members: Agreed.
SI/2016-20 — ORDER DESIGNATING THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES AS THE MINISTER FOR THE PURPOSES OF THE ACT
(For text of documents, see Appendix J, p. 8J:1.)
Ms. Borkowski-Parent: This is a procedural matter. Order SI/2016-20 was made under the prerogative power and was accordingly registered by the Clerk of the Privy Council as such. When it was published in the Canada Gazette, however, the order appeared under the header of the Parliamentary Employment and Staff Relations Act, which is not the enabling authority, but rather the law which the minister has the authority to apply.
Since there is no statutory or regulatory requirement pertaining to the status of headings in the Canada Gazette, it would appear that there is nothing to correct and the file could be closed.
The Joint Chair (Senator Merchant): Is that agreed?
Mr. Genuis: I agree in general, but I think it's worth communicating the committee's view that there's an important principle that should have been adhered to, but wasn't, and should be in the future.
The Joint Chair (Senator Merchant): Agreed? I think that's a good idea.
Hon. Members: Agreed.
SOR/2015-56 — DIVESTITURE REGULATIONS FOR FORMER EMPLOYEES OF ATOMIC ENERGY OF CANADA LIMITED (CANDU REACTOR DIVISION)
(For text of documents, see Appendix K, p. 8K:1.)
Ms. Borkowski-Parent: The published version of the regulations did not state the date of their making, which made it impossible to ascertain whether section 5 of the Statutory Instruments Act, on transmission to the Clerk of the Privy Council, had been complied with. You will find in the materials the extract from the minutes of a meeting of the Treasury Board, which specifies that date. The requirements of transmission under the act have been met and the file can be closed.
The Joint Chair (Senator Merchant): Agreed?
Hon. Members: Agreed.
SOR/2006-50 — CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS
(For text of documents, see Appendix L, p. 8LA:1.)
Mr. Abel: The enabling act for these regulations was previously amended in order to address the committee's concern that two provisions were not properly authorized. Since the validity of sections 54(1) and 58 was in doubt, it was recommended that these provisions be revoked and re-enacted under the new authority.
The department now indicates instead that it wishes to bring forward a further statutory amendment to deal with this issue in 2016 or 2017. Presumably this will retroactively validate these provisions to ensure that payments made under sections 54(1) and 58 in the past are not brought under question.
A second matter was also raised in connection with this file, quite some time ago, concerning the use of the word "tout" in the French versions of several provisions. This relates to the scope of information and documents that must be submitted with certain applications. The department has never agreed that a problem exists, but members ask the department, once again, to consider whether the inclusion of "tout" in these provisions may introduce an ambiguity between the English and French versions. The department is still convinced that there is no problem.
I would suggest that members could consider letting this issue go. While the committee has considered several times that there is the possibility of an ambiguity here, the department is steadfast on its position, and the matter is arguable rather than clear.
In the case of applications dealt with under these provisions, the minister is also empowered to request any further information that might be necessary to decide the application. It would appear that there's no real possibility of harm that could arise from a minor discrepancy, if it exists, in this case.
If members agree, a letter could be drafted following up on the department's commitment to seek a statutory amendment.
Senator Runciman: This would be a letter which would say what, exactly?
Mr. Abel: The department has indicated that they will be pursuing a statutory amendment, but it's been some time since we had a communication with them, so I would suggest we simply see how they are doing towards pursuing that.
Senator Runciman: So inquiring about a timeline?
Mr. Abel: Yes.
Senator Moore: Is this something that would be pursued by the department via miscellaneous statutes? Is that what we're looking at here, or is this another process?
Mr. Abel: We could ask, but given that this would be amending an enabling authority, I have a feeling they might not feel it appropriate to fall under that.
Senator Runciman: Looking at this, they have indicated that there would be an amendment in 2016-17, so they've already indicated a broad outline. I wonder if we should simply monitor the file.
Mr. Abel: I'm in members' hands as to what they want to do.
The Joint Chair (Senator Merchant): Should we just monitor the file? What do we feel? Agreed with Senator Runciman's suggestion? Agreed.
SOR/2007-125 — VESSEL CLEARANCE REGULATIONS
(For text of documents, see Appendix M, p. 8M:1.)
Mr. Abel: These regulations require ships to carry three certificates that are not referred to in any Canadian statute or regulation. The question was, therefore, under what authority a person could obtain these certificates?
With respect to a cargo ship radio certificate, the department pointed to a reference in the Ship Station (Radio) Technical Regulations, which refers to a radio inspection certificate. This generic description was employed because at the time it was made, more than one type of radio certificate could be issued.
These references should now be made consistent, but the department has only stated that it would prefer to do so; it hasn't indicated whether it actually will do so, or when.
With respect to the other two certificates relating to the carriage of liquefied gases in bulk, the department states that regulations governing these certificates have not yet been made. No vessels that would require the certificates currently operate under a Canadian flag, meaning that the certificates are not currently being issued. Presumably, the necessary regulations would be promulgated before the need arises.
If members are satisfied with that explanation, a letter could be drafted seeking a firmer commitment concerning the radio certificate.
Mr. Brassard: I get the fact that there are no vessels under the Canadian flag at this point, but the priority of LNG and the carrying of that will come up on us really quickly. I think we need to expedite or have the department expedite some of the regulations or certificates related to that. As I understand it now, vessels that don't carry the Canadian flag require those certificates.
There are two choices to make. Number one, we can tell them that this needs to be expedited. Or, are there any provisions under legislation that allow for those similar certificates of non-Canadian flag carrying vessels to be transferred over to Canadian flag vessels, when and if we get to that point?
We will be moving in this direction really quickly, I think, with the transport of LNG. Some Canadian vessels may have a Canadian flag as part of this, so I think some priority needs to be placed on this to at least push the department along.
The Joint Chair (Mr. Albrecht): I agree with the general point you're making, Mr. Brassard, but the bottom of the first page states that the "letter explains that regulations governing these certificates have yet to be made." This implies that even non-Canadian ships may not be under obligation to carry these certificates. I'm confused.
Mr. Brassard: My understanding, Mr. Chair, is that there are vessels that don't have the Canadian flag that are carrying LNG and have requirements for these certificates. Am I wrong in that?
Mr. Abel: The legal regime that governs shipping relates directly to which flag they're registered under, so these regulations and this scheme would only apply to Canadian flagged ships. Other ships will be under an entirely separate regime.
Mr. Brassard: Okay.
Mr. Abel: As to when they will make these regulations, it would certainly be possible for us to write asking if they are working on them now and what their time frame or plan is for when those will be brought in place, as well as what we expect. We can ask what they're looking at in terms of right now.
Mr. Brassard: At a minimum we need to do that. I base that on the fact that we will see a lot more movement of LNG and a lot more Canadian-flagged vessels moving that. I get the fact that internationally flagged vessels are under a different regime, but we're going to see this come up on us really quick, and I think we need to make sure that those regulations and certificates are in place before we get to that point.
I'll leave it to the committee, but that's where I'm at on this.
The Joint Chair (Senator Merchant): Should we go ahead with that?
Hon. Members: Agreed.
SOR/2009-162 — CHROMIUM ELECTROPLATING, CHROMIUM ANODIZING AND REVERSE ETCHING REGULATIONS
(For text of documents, see Appendix N, p. 8N:1.)
Ms. Borkowski-Parent: To begin, the department still plans to publish the amendments requested by the committee, in the fall of 2017. Counsel could continue the usual follow-up on these points, and on the questions related to the ambiguity of the term Canadian accrediting bodies.
The key issue is the accessibility of standard ASTM D 1331-89, which is incorporated into the regulation by reference. The practice of incorporation by reference became so common that the Statutory Instruments Act was amended to govern this practice. This practice is very convenient for departments, because the enactment does not have to specify or stipulate the technical requirements within the regulation or amend them when they are outdated.
This convenience for the department is, however, detrimental to accessibility for users, who must consult outside sources to find all the requirements and obligations imposed on them. That is why section 18.3 of the act provides that the documents incorporated by reference must be accessible. In the representations it made during the committee stage of the bill, the joint committee stressed that the requirement in section 18.3 of the act, although commendable, was so ambiguous that it was difficult to apply.
The department was then asked what measures it had taken, as the regulatory authority, to make the document accessible. The fact that the standard is available for purchase for $50 in English only appears to satisfy the requirements of the act, in the department's view. As the note states, this is the first opportunity for the committee to examine the issue of accessibility of documents incorporated by reference in the context of the new provisions of the Statutory Instruments Act.
Mr. Genuis: This is honestly the dumbest thing that has come before this committee. I know it has a lot of close competitors, but the idea that people should have to pay to access information about what they are legally obliged to do is insane and offensive. That's not even mentioning the language issue, which is of course very important.
I have pretty significant problems with the concept of incorporation by reference in general, because it means that when an external standard changes, a regulation changes, and the department may not know and individuals using the standard may not know. I guess that's a larger issue.
It is unbelievable to me — small point or not — that this is coming before us again. We need to chock this up the food chain pretty quickly.
Mr. Diotte: I want to mention a general thing. I'm new to this, but throughout all these reports there's some very basic style problems: Periods and commas always go inside quote marks, and it drives me nuts as a former newspaper editor — throughout. So somebody has to know how to write, right? And lawyers I'm sure can write, but maybe somebody should note that because it's going to drive me nuts if it's always like this.
The Joint Chair (Senator Merchant): You're not the only one.
Ms. Borkowski-Parent: This is the translation. We don't review translations as they come in.
Mr. Diotte: But it's just basic English — and French too. I'm sure it's the same words. Commas and periods always go within quote marks, not outside.
Ms. Borkowski-Parent: Fair enough. As I was mentioning, counsel doesn't spend time reviewing formatting after it comes back from translation, but I'll pass that on.
Mr. Diotte: Great, thanks.
The Joint Chair (Senator Merchant): What about the suggestion from Mr. Genuis?
Senator Runciman: What was the suggestion?
Ms. Borkowski-Parent: There's a broader context here. This is the first file that is coming up after the amendments to the Statutory Instruments Act. There will be more. I can speak of the transportation of dangerous goods that has about 30 standards incorporated by reference for a total of $7,000.
At this point we're seeking guidance from the committee as to what it will consider or not consider accessible in the future, whether it's with regard to language, cost, et cetera.
Ms. Jordan: I would like clarification. I'm pretty sure you're saying that you have to pay if you want the French version. Is that correct?
Ms. Borkowski-Parent: That one is not available in French.
Ms. Jordan: It's not available in French, so if you want it, you have to pay for it, or you just have to pay for it no matter what?
Ms. Borkowski-Parent: You have to pay for it no matter what.
Ms. Jordan: And it's not available in French?
Ms. Borkowski-Parent: English only.
Ms. Jordan: This is a bilingual country, and you cannot get it in French?
Ms. Borkowski-Parent: It's an American —
Ms. Jordan: I know it's the American standard, but it is in the Canadian —
Ms. Borkowski-Parent: It's incorporated by reference in a Canadian regulation.
Ms. Jordan: Okay, that's totally unacceptable.
Mr. Genuis: This is one instance of insanity, but from what you're saying, we may have many others related to this.
Given some of the discussion we've had on some of the other items, it is important for this committee to table in the house a report with recommendations about incorporation by reference and accessibility, and draw the attention of our colleagues to this issue. If it is dealt with in a breadth of different regulations, it seems to require that kind of response. Then we can hopefully explore opportunities for concurrent debate around that if there's an opportunity to do that.
But certainly table the report. It certainly warrants that kind of response.
Senator Moore: I agree with that. I would like to see it also tabled in the Senate at the same time.
The Joint Chair (Senator Merchant): Do we undertake to do that? Agreed?
The Joint Chair (Mr. Albrecht): I have a question. I'm wondering whether this committee has struggled with the issue in enough depth to actually present a report to the house yet. I agree with the direction we're going, but I'm not sure if even around this committee we have any degree of consensus as to the best way to go.
I'm not trying to influence the final decision. I just want to ensure that we don't come to Parliament with something that's half baked.
Ms. Borkowski-Parent: If it might help, we can draft a report, present it for discussion, and see where the members want to take it.
Mr. Anandasangaree: Is this something we should write to the Commissioner of Official Languages about to get his opinion? As government documents, there is an imperative that these be available in both official languages. If they're not available, then it's probably something we should consider.
Mr. Genuis: To Mr. Anandasangaree's point, I agree in principle. From my view, they are not available in either language, though. They are notionally more available in English, but there's the deeper problem.
Mr. Albrecht's point is a good one. There would be some options available to us. The thing is that if we undertook to do a multi-meeting study on this question, it would cut into some of the other important work we're doing. I wouldn't be opposed to either scheduling a couple extra meetings to hear from experts on this or striking a subcommittee of the joint committee to briefly consider this. Those would be some other options. Or we could just come back and consider the main report from counsel, depending on other people's availability.
We would have those tools available to us to, let's say, strike a subcommittee to look at this on a couple occasions and then come back to the main committee with a report on the detail.
Ms. Jordan: I would like to suggest that we actually see a report from counsel on it first before we decide on any subcommittees or extra meetings. Let's see the report, see what it says and then go from there.
The Joint Chair (Senator Merchant): Is that agreeable?
Ms. Borkowski-Parent: Do we write to the Commissioner of Official Languages first?
The Joint Chair (Senator Merchant): Let's do your report first and then see if we would like to go down that path.
Mr. Genuis: From counsel's perspective, what would be a likely timeline for us to see and review that report?
Ms. Borkowski-Parent: We'll bring it for the next meeting.
Mr. Genuis: Excellent. Thank you.
SOR/2008-104 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE MOTOR VEHICLE SAFETY ACT (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix O, p. 8O:1.)
Mr. Abel: An amendment to the Motor Vehicle Safety Act has been made resolving a question of validity raised by the committee in respect of a number of regulations made under the act.
There are still two outstanding promised amendments. An amendment is promised to replace subsections 108(27) and (28) to Schedule IV of the Motor Vehicle Safety Regulations. This amendment was part of an instrument prepublished in February but the amendments have not yet been made.
The other amendment would clarify the wording of a form contained in the Motor Vehicle Safety Regulations.
The department's expected time frame has been pushed back several times. It is now expected that pre-publication will not occur until 2017. Actual making of the amendments would follow later than that.
How would members like to proceed on these matters?
The Joint Chair (Senator Merchant): What do you say, counsel?
Mr. Abel: On the promised amendments to 108(27) and (28), they are prepublished in February. We could continue to monitor to see when that will be made. It is October, but it might be coming shortly.
In terms of the other one, it's really up to members as to whether they find that timeline appropriate or acceptable.
I would note that the department has already missed several time frames in respect of that amendment.
The Joint Chair (Senator Merchant): How many?
Mr. Abel: The department previously indicated an amendment would be made in late 2015. Then it pushed it to pre- publication late 2015 or first half of 2016. Now it's looking at pre-publication for 2017.
The Joint Chair (Mr. Albrecht): I have a concern that it's simply 2017 — no month, no early or late. I would suggest that we ask for it by the end of March 2017.
Senator Moore: Agreed.
The Joint Chair (Senator Merchant): Sounds like a good idea. Thank you.
C.R.C. C. 1551 — TEXTILE LABELLING AND ADVERTISING REGULATIONS
(For text of documents, see Appendix P, p. 8P:1.)
Mr. Abel: On this file, some 10 amendments addressing the committee's concerns have been outstanding for many years. The note prepared for today covers in detail the numerous delays since 2007 in making these amendments.
The Competition Bureau stated in January that it is confident it will be in a position to move forward in spring 2016. I will note that the amendments have not at this point been published or prepublished.
Senator Runciman: This cries out to request officials from the bureau to appear before the committee. It seems they have just been changing dates on the same letter for all of these years.
I don't know anything about the Competition Bureau, but I'm assuming they fall under a minister or department. I don't see in the file any letter to the minister responsible expressing these concerns. I know it's exhibiting extraordinary patience by writing another letter. It seems to be missing from the file that we haven't made that additional and usual step before we ask them to appear before the committee.
I'm throwing this out there for discussion: Should we at least try that step? Then, if the response is unsatisfactory and we don't see quick action on this, we call officials before the committee? We can outline as well to the minister in the letter that if we can't see a resolution of this within the next few months — some action — we will be compelled to call witnesses.
The Joint Chair (Senator Merchant): How do you feel, colleagues? That sounds like a good idea, to write first.
The Joint Chair (Mr. Albrecht): I want to share one of my frustrations. In the letter coming back, first of all, it's dated incorrectly, but it says that they "will move forward on this matter in the spring." Which spring is that? There has to be more definition and clarity in some of this communication.
Senator Omidvar: I have a question for counsel. There are sections in the binder where it's clear that action has been taken and the situation has been resolved. There's an "Unsatisfactory" section. This is under "Progress (?)". Is there progress that you see that we don't see?
Mr. Abel: Perhaps the best way I can answer that is to say that we don't have a "negative progress" area. We don't have a "Backward" heading.
Senator Omidvar: It's all in the attitude, I guess. Thank you.
Mr. Anandasangaree: With respect to the Competition Bureau, my understanding is that they are an independent body of government. So how does the minister have any say in how they react to something like this?
Mr. Abel: In this case, the Competition Bureau does fall under Industry Canada, but yes, they make their own regulations, which may in part explain why it has been so difficult to get anything done. We deal with Industry more regularly. The Competition Bureau, except for one minor amendment, has not amended these regulations in, I think, at least 10 years.
Calling the minister may not result in a lot of action. The minister and the minister's staff may be reluctant to commit to anything. I don't know for sure, but it may be a fruitless expedition.
Mr. Anandasangaree: My sense is that it's a completely arm's-length organization, other than the fact that funding is channelled through Industry. The minister cannot in any way dictate to the bureau how they operate.
There must be another avenue or outlet — maybe Privy Council or some other forum — that can advise them, but I don't see having this channelled through the ministry to be in any way advancing the issue.
Mr. Abel: The DIO for the committee, and the person you write to right now, is the deputy commissioner. It's always open to the committee to write directly to the commissioner, notwithstanding anyone they may wish to call as a witness at some point.
Senator Runciman: Can you clarify: the deputy commissioner of the bureau?
Mr. Abel: Of the bureau, yes.
Senator Runciman: I'm fine with that. I said at the outset that I wasn't sure of the relationship. If that's the appropriate way to go, let's do that.
Mr. Ehsassi: I don't think the minister can intervene in the decision-making process of the Competition Bureau, but from an administrative standpoint, the minister is responsible. This would fall in the ambit of something that's administrative.
Mr. Anandasangaree: This is a regulation, so the minister will not be able to dictate the regulation. The enabling legislation gives the bureau the ability to enact this. The minister has no direct control over how that's implemented.
My understanding is that this is a completely arm's-length organization. It's like CRTC, right? We have had a number of issues with CRTC. We always send it back to the commission. We don't involve the minister because the minister is not someone who is necessarily answerable to the regulations they enact.
Mr. Genuis: Could we get some advice from counsel with respect to which powers the minister would theoretically have to influence this issue?
Mr. Abel: Without stepping away and doing the specific research, I can't say for sure. It will depend specifically on the statute governing the Competition Bureau.
Mr. Genuis: If it's a complicated enough legal question that we have differences of opinion among people here and you're not entirely sure, could we maybe get clarification on that? Then, possibly at the next meeting, we could define exactly the way forward? Does that make sense?
Mr. Abel: We can do that, yes.
The Joint Chair (Senator Merchant): Are you suggesting we just leave the whole thing alone?
Mr. Genuis: We can bring it back at the next meeting with a recommendation.
The Joint Chair (Senator Merchant): Not write or anything right now?
Mr. Genuis: Right. Two weeks seems like a small amount of time in the scheme of some of these items — maybe not in some people's eyes. It's so we're actually directing our attention to the right authorities. If there's any ability for the minister to engage this, I think it's worth engaging. If not, we should know that too.
The Joint Chair (Senator Merchant): Anyone else?
Mr. El-Khoury: I would like to ask the counsel what kind of measures or action we can take in order not to let this issue be delayed and delayed?
Ms. Borkowski-Parent: As I mentioned, the committee has the same powers as other committees, which are powers of persuasion. One power that the committee has that other committees don't is the power to disallow or, through a report that is tabled in both houses, have the problematic provision repealed. It requires a notice of 30 days to the department or agency before a report is tabled, and then it requires that report to be adopted by both houses.
The Joint Chair (Senator Merchant): We'll wait and see what counsel comes forth with. You could have it by the next meeting. Let's just leave it at that.
SOR/93-195 — QUEBEC MAPLE SYRUP PRODUCERS' LEVY (INTERPROVINCIAL AND EXPORT TRADE) ORDER
(For text of documents, see Appendix Q, p. 8Q:1.)
Ms. Borkowski-Parent: The Quebec Maple Syrup Producers' Levy (Interprovincial and Export Trade) Order was made by Fédération des producteurs acéricoles du Québec, the commodity board, pursuant to the powers delegated to it by federal government under the Quebec Maple Sap and Maple Syrup Order (the Order). That order gives the commodity board powers that it can exercise only in respect of persons and goods within the boundaries of Quebec. In certain cases, however, the order requires the buyer to pay levies to the commodity board, but it does not specify that it applies only to purchasers in Quebec.
The Farm Products Council agreed to the committee's request, in 2002, to amend the order to clearly provide that it applies only to buyers in Quebec. In the meantime, there has been an increase in the number of disputes between producers, the commodity board and the Régie des marchés agricoles et alimentaires du Québec, particularly with regard to marketing outside the province, and there are currently a number of outstanding disputes. The last letter from the Farm Products Council refers to the case of Angèle Grenier v. Fédération des producteurs acéricoles du Québec. The Quebec court of appeal rendered its decision in the case, and that decision confirms the Régie's authority and the validity of the federal order. An appeal has, however, been filed with the Supreme Court of Canada in recent weeks.
Although the matters at issue are not directly related to the committee's concerns, it would no doubt be advisable to reserve judgment and wait for the resolution of the matter.
The Joint Chair (Senator Merchant): Agreed?
Hon. Members: Agreed.
SOR/2004-155 — SCHEDULE 1 CHEMICALS REGULATIONS (CHEMICAL WEAPONS CONVENTION)
(For text of documents, see Appendix R, p. 8R:1.)
Mr. Abel: Amendments were previously promised that would resolve all outstanding issues for this item. Since 2013, several delays and pushbacks have occurred in the department's projected time frame. In December 2015, it was stated that work would commence again with Treasury Board in 2016. No date for making the amendments was given, and the amendments have not yet been made.
The Joint Chair (Senator Merchant): Comments?
Mr. Genuis: Write to the minister. We need a timeline.
The Joint Chair (Senator Merchant): Agreed?
Hon. Members: Agreed.
SOR/99-318 — CANADA PORT AUTHORITY ENVIRONMENTAL ASSESSMENT REGULATIONS
(For text of documents, see Appendix S, p. 8S:1.)
Ms. Borkowski-Parent: The agency wishes to repeal the regulations that have become spent as a result of the Canadian Environmental Assessment Act, 2012, through an amending regulation. Counsel could therefore take the usual follow-up action.
The Joint Chair (Senator Merchant): You noticed that this started in 1999.
Ms. Borkowski-Parent: That regulation was made in 1999, but the new act that came into force in 2012 rendered it obsolete, so they will repeal it in a miscellaneous amendment. We can monitor it.
The Joint Chair (Senator Merchant): Good.
SOR/2012-160 — GENERAL EXPORT PERMIT NO. 45 — CRYPTOGRAPHY FOR THE DEVELOPMENT OR PRODUCTION OF A PRODUCT
(For text of documents, see Appendix T, p. 8T:1.)
Ms. Borkowski-Parent: The Department of Global Affairs indicated it will correct the two drafting issues raised by the committee. Counsel could perhaps inquire as to a more specific time frame.
The Joint Chair (Senator Merchant): Agreed?
Hon. Members: Agreed.
SOR/89-259 — BREWERY REGULATIONS, AMENDMENT
SOR/2015-158 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS
(For text of documents, see Appendix U, p. 8U:1.)
SOR/2016-96 — REGULATIONS REPEALING THE VINYL CHLORIDE RELEASE REGULATIONS, 1992
(For text of documents, see Appendix V, p. 8V:1.)
Ms. Borkowski-Parent: With members' approval, I can deal with all items under "Action Taken" as a whole. Together, they make a total of 10 requested amendments.
SI/2016-2 — ORDER DECLINING TO SET ASIDE OR REFER BACK TO THE CRTC BROADCASTING DECISION CRTC 2015-483
SI/2016-3 — ORDER FIXING FEBRUARY 5, 2016 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SI/2016-4 — ORDER FIXING APRIL 5, 2016 AS THE DAY ON WHICH THE ACT COMES INTO FORCE
SI/2016-8 — ORDER DESIGNATING THE MINISTER OF TRANSPORT AS THE MINISTER FOR THE PURPOSES OF THE ACT
SI/2016-9 — LORIE ARMALIS REMISSION ORDER
SI/2016-10 — CEDRIC TAYLOR REMISSION ORDER
SI/2016-11 — RASHPAL PANNU REMISSION ORDER
SI/2016-12 — GLENDA SKENE REMISSION ORDER
SI/2016-14 — ORDER FIXING APRIL 1, 2016 AS THE DAY ON WHICH SECTIONS 177 TO 204 OF THE ACT COME INTO FORCE
SI/2016-15 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH THE ACT COMES INTO FORCE
SI/2016-16 — MOTORS INSURANCE CORPORATION REMISSION ORDER
SOR/2014-27 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996
SOR/2014-29 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DIFFERENTIAL PREMIUMS BY-LAW
SOR/2014-38 — CANADA POST CORPORATION PENSION PLAN FUNDING REGULATIONS
SOR/2014-98 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (RUSSIA) REGULATIONS
SOR/2014-156 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2014-1
SOR/2014-236 — SPECIAL ECONOMIC MEASURES (SOUTH SUDAN) PERMIT AUTHORIZATION ORDER
SOR/2014-238 — REGULATIONS AMENDING THE PROOF OF ORIGIN OF IMPORTED GOODS REGULATIONS
SOR/2014-240 — REGULATIONS AMENDING THE PACIFIC PILOTAGE REGULATIONS
SOR/2014-259 — REGULATIONS AMENDING THE MAIL RECEPTACLES REGULATIONS
SOR/2014-294 — ORDER AMENDING THE ALLOCATION METHOD ORDER (BEEF AND VEAL)
SOR/2014-309 — REGULATIONS AMENDING THE PASSPORT AND OTHER TRAVEL DOCUMENT SERVICES FEES REGULATIONS (MISCELLANEOUS PROGRAM)
SOR/2015-65 — REGULATIONS AMENDING THE NATIONAL SECURITY REVIEW OF INVESTMENTS REGULATIONS
SOR/2015-107 — RULES AMENDING THE PUBLIC SERVANTS DISCLOSURE PROTECTION TRIBUNAL RULES OF PROCEDURE
SOR/2015-114 — MARKETING AUTHORIZATION FOR GLUTEN-FREE OATS AND FOODS CONTAINING GLUTEN-FREE OATS
SOR/2016-16 — REGULATIONS AMENDING THE REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS
SOR/2016-27 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS LAND MANAGEMENT ACT
SOR/2016-28 — ORDER AMENDING THE ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (GEORGE GORDON, RED PHEASANT AND PABINEAU FIRST NATIONS)
SOR/2016-30 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (WITHHOLDING OF INCOME TAX ON PAYMENTS FROM REGISTERED DISABILITY SAVINGS PLAN)
SOR/2016-32 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER
SOR/2016-33 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DEPOSIT INSURANCE INFORMATION BY-LAW
SOR/2016-40 — ORDER AMENDING SCHEDULE 2 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2016-1 (DAKOTA PLAINS)
SOR/2016-42 — ORDER EXTENDING THE APPLICATION OF THE FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (TUNISIA) REGULATIONS
SOR/2016-44 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996
SOR/2016-45 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE AUTHORITY REGULATIONS
SOR/2016-47 — ORDER 2016-66-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2016-50 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (RUSSIA) REGULATIONS
SOR/2016-51 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (UKRAINE) REGULATIONS
Ms. Borkowski-Parent: Last, I would note for the record that under "Statutory Instruments Without Comment," 38 instruments that have been reviewed and found to comply with all the committee's criteria.
The Joint Chair (Senator Merchant): Thank you.
Do you want to go back to the item that we left out? I think it was Item No. 6. Do you want to deal with that today or not?
Ms. Borkowski-Parent: No, we need to analyze the amendments that were made.
The Joint Chair (Senator Merchant): If that's the case, then, we are done.
(The committee adjourned.)