REGS Committee Meeting

THE STANDING JOINT COMMITTEE OF THE SENATE AND THE HOUSE OF COMMONS FOR THE SCRUTINY OF REGULATIONS

LE COMITÉ MIXTE PERMANENT D'EXAMEN DE LA RÉGLEMENTATION DU SÉNAT ET DE LA CHAMBRE DES COMMUNES

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 11, 1999

• 0830

[English]

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

Senator Céline Hervieux-Payette and Mr. Gurmant Grewel (Joint Chairmen) in the Chair.

[Translation]

The Joint Chair (Senator Hervieux-Payette (Bedford, Lib.)): We will now proceed with the first item on our agenda, the Fraser Institute Study of Regulatory Impact Analysis Statements. Are there any comments?

Mr. François R. Bernier (Senior Counsel): Mr. Cleevely's letter of December 11 deals with two points that the committee wanted raised regarding the job description of the Director of Regulatory Affairs at Treasury Board. The response provided does not deal directly with the points raised by the committee, but rather advises us that a new job description is in the works. The correspondence is intended to inform members of this.

The Joint Chair (Senator Hervieux-Payette): Can we expect to receive the new job description?

Mr. Bernier: Yes, we can request it.

[English]

The Joint Chair (Senator Hervieux-Payette): Would the members like to have the new job description of the function that has been changed?

M. Wappel: Yes.

The Joint Chair (Senator Hervieux-Payette): Is it agreed?

An Hon. Member: Agreed.

SOR/72-337 — NARCOTIC CONTROL REGULATIONS, AMENDMENT

SOR/72-336 — FOOD AND DRUG REGULATIONS, AMENDMENT

SOR/72-166 — FOOD AND DRUG REGULATIONS, AMENDMENT

The Joint Chair (Senator Hervieux-Payette): The next item is the Narcotic Control Regulations amendments.

Mr. Bernier: At its meeting of December 10, the committee asked that a disallowance report be drafted for submission to the committee. In fact, members will see that two reports had to be prepared, as there are two distinct regulations involved.

Standing Order 123 of the House of Commons empowers the committee to make a report that contains a resolution that calls for the revocation of a statutory instrument or portion thereof. A disallowance report cannot seek to disallow more than one statutory instrument. That is why we need two separate reports — one in relation to the Narcotic Control Regulations and one in relation to the Food and Drug Regulations.

Standing Order 123 also states that not more than one disallowance report can be presented on any sitting date. Therefore, the joint chairmen will be required to table these two reports on two different days.

The Joint Chair (Senator Hervieux-Payette): That is not a problem.

Mr. Bernier: Other than that, the appendix is self-explanatory.

The Joint Chair (Senator Hervieux-Payette): Are there any comments or questions on this report, or is it satisfactory? Do you want it to be tabled as is?

M. Wappel: Yes.

The Joint Chair (Senator Hervieux-Payette): Does everyone agree with the report?

An Hon. Member: Agreed.

The Joint Chair (Senator Hervieux-Payette): I have a question. Must we give notice of our intention to file the report, or can we just table the report?

Mr. Bernier: Yes.

The Joint Chairman (Mr. Gurmant Grewal (Surrey Central, Ref.)): In the House of Commons, we have tabling orders.

The Joint Chair (Senator Hervieux-Payette): That is why I asked.

Mr. Bernier: I am not aware of any such notice. The report would come in under Routine Proceedings.

The Joint Chairman (Mr. Grewal): I think you are correct.

The Joint Chair (Senator Hervieux-Payette): I was checking because I wanted to know if, upon hearing the notice, they would rush and table a new regulation.

Mr. Bernier: If you recall, the issue is the formal revocation of those three sections. They are no longer in force, essentially because there has been an implied repeal. We simply wanted them off the books formally. The department then came back with, This is something we will look at as part of an overall study in the year 2000 and 2001. The committee was not disposed to wait until the next millennium and decided to disallow.

The Joint Chair (Senator Hervieux-Payette): Is it agreed?

An Hon. Member: Agreed.

Mr. Bernier: The same comments apply to the Fourth Report. It is part of the same file.

The Joint Chair (Senator Hervieux-Payette): Does everyone agree with the report?

An Hon. Member: Agreed.

SOR/88-361 — ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988

Mr. Bernier: This item is on the agenda on the basis of standing instructions from the committee. Members have in front of them a letter sent by the Chair to the Solicitor General. We replied to Mr. MacAulay. As stated in that reply, new regulations were made on December 16. At this stage, counsel prepared a commentary on the new regulations. That commentary includes not only our views on the new provisions but also sets out the comments made by various interested parties who sent briefs either to the government or directly to this committee.

This document is in the process of being translated. If the committee agrees, new regulations could, perhaps, be discussed and presented with the commentary at the meeting of March 4. I would like to know whether members think this should simply form part of a regular agenda or whether that meeting should deal exclusively with the new regulations. There are a number of issues, but I do not know how members will want to deal with the file.

The Joint Chair (Senator Hervieux-Payette): That would depend on the size of the agenda. If our workload is not too heavy, we could start with the regular business and treat this as the last item,

M. Wappel: I would suggest that on that day we deal with the RCMP regulations as the first item and keep the rest of the agenda meager, if I can put it that way. Somehow I do not think we will be, but if we are absolutely thrilled with the regulations and we whistle through them in five minutes and the rest of the agenda in 10 minutes, it will be the first time since I have been here that we have gone through anything in 15 minutes, and we can then enjoy the 45 minutes off. It is probable that we will not take the whole hour, but we do not know because we have not seen it. I am hoping that we would not take the whole hour, because we have already taken a whole year. Hopefully, we have honed it down to where we might have specific points to talk about rather than going clause by clause and word by word. I suggest we have the RCMP at the top, deal with that matter first, and a relatively small agenda for the remainder.

[Translation]

Mr. Saada: Is there something the committee would like me to do? Is it in need of witnesses or the like? I am at your disposal. I would just like some advance notice so that I can arrange my schedule accordingly.

[English]

The Joint Chair (Senator Hervieux-Payette): What do you expect in terms of exchange in dialogue?

M. Wappel: From my perspective, I thought we would listen to what counsel had to say about the regulations and decide where we would go from there. I do not think we need witnesses at this stage.

The Joint Chair (Senator Hervieux-Payette): Do I have consensus on whether this is the first item or the last item? I think we could deal with a light agenda at the beginning for 15 minutes. They will prepare the material. Perhaps we will not have time to deal with it. It is your decision.

Senator Moore: We should do it first.

Mr. Lee: I wish to make a brief note in relation to the response of the Solicitor General. He refers to the deadline put in place by the Quebec superior court arising out of the litigation surrounding the then existing regulations. For the record, I would make it clear that this committee is just as capable of putting its own deadlines in place and equally as effective as the Quebec superior court, should we choose to go to the disallowance procedure, which we have already looked at.

The only reason we do not have a deadline is collegial respect for the process now at play. I wanted to note that because it is very possible that the committee may create another deadline that might be characterized as a guillotine, just as the Quebec superior court did arising out of that litigation.

The Joint Chair (Senator Hervieux-Payette): It is my understanding that we are the masters of our own agenda. What the superior court is doing and what we are doing are two different things. I think we will take notice of that.

Does everyone agree that we first deal with the RCMP regulations?

An Hon. Member: Agreed.

SOR/93-43 — ORDER VARYING A LETTER DECISIONT (CHANDLER SUBDIVISION) ISSUED BY THE NATIONAL TRANSPORTATION AGENCY

The Joint Chair (Senator Hervieux-Payette): The next item is the Chandler subdivision, National Transportation Agency.

Mr. Bernier: In their letter of December 18, 1998, the chairmen requested that the Minister of Transport furnish some financial information that had not been given following an earlier request for that information. The committee then asked to receive that information within two weeks of the date of the letter. The requested information has not been received from the minister at this time, to our knowledge, at least in the secretariat. The committee had also instructed counsel to begin work on drafting a report to the houses on this issue.

That draft report is now complete. It is in the process of being translated. As we did not receive and were not serving the requested information from the minister, we made our own inquiries. From those we learned that the total amount of subsidies paid to CN under the illegal variation order totalled over $3 million.

If the committee and National Transportation Agency are correct in their view of the law, of course, those subsidies were paid illegally.

The question now is: Does the committee wish to consider the draft report at its next meeting, or does it first wish to obtain an official ministerial confirmation of the $3 million figure?

M. Wappel: Our next meeting is March 4. We are already dealing with the RCMP. Will we have enough time to deal with a draft report going to the house at the same time as we are dealing with the RCMP? I doubt it, if we are looking for a relatively soft light agenda. That being the case, I would recommend that we put that report off to the next meeting, perhaps as the first item.

In direct response to what counsel has said, my view is that in the draft report we state that we asked the minister for certain information, that information was not forthcoming, notwithstanding repeated requests we set out. The House of Commons will be informed, and then we go with the information that we were able to get. If that information is incorrect, it will not be our fault, it will be the minister's fault for failing to supply the information as requested from this committee. That is the approach I suggest, rather than waiting until the minister gets around to answering us, if ever.

On page 2 of the letter, paragraph 3, we are reminded of the kind of correspondence that has gone on with respect to this file. If I remember correctly, there was some moderately sarcastic comment about having written to us three times already. I do not see any point in playing cat-and-mouse games forever. Let us just make specific mention of it in the report.

Mr. Bernier: If it has a bearing on what the committee decides, I might add that we got our information at the same place. In fact, we learned that the Department of Transport has requested the information. We got our information from the same source that they did; however, it has not been conveyed to us by the minister.

The Joint Chair (Senator Hervieux-Payette): That is vague to me — the Department of Transport requested of itself?

Mr. Bernier: No, this information does not come from the Department of Transport, it comes from the National Transportation Agency. The Department of Transport, presumably on behalf of their minister, after receiving this letter, asked the agency for the information and was given the information. We happened to ask the same person and also learned that the information had already been conveyed to the Department of Transport.

I am only making that point to show you the reliability of the information.

Mr. Lee: This information from the minister may be delayed. They simply may have omitted to send it, one is not certain. However, if the issue of obtaining the information is relevant and mentioned in our report, I would not want the report to betray a circumstance where the committee viewed itself as incapable of getting the information from the minister because Parliament should never be in that position. Parliament is fully capable of getting information if it wants it, as is this committee.

If we are to make a note that we did not receive the information, it should be characterized as an absence of courtesy on the part of the government in providing it, that we were able to get the information and will not make an issue of it. However, I would not want the report to reflect a false inability of the committee to get the information if it was needed.

Mr. Bernier: Perhaps the solution would be to indicate in the report that the committee did get the information, but what it was unable to get from the minister was official confirmation of the information.

Mr. Lee: That would be fine.

M. Wappel: Just to pursue what Mr. Lee is saying, we can get the information. We can ask the minister to show up here. We can take all kinds of measures to get the information the way we want. We do not wish to wait. It is our choice. I believe this is what you are getting at. We choose to proceed with the information that we have and we are making note of the fact that we decided, just like in this fourth report where we said that we are not prepared to wait until the third millennium, to proceed. The report could also reflect that we were not prepared to wait, although we could have subpoenaed the minister.

I believe Mr. Lee wishes to make the point that we are not eunuchs here in terms of obtaining the information. We just do not wish to wait around and chase the minister, call witnesses and so on. We prefer to get on with the report with the information that we have. Is that correct, Mr. Lee?

Mr. Lee: That is right.

The Joint Chair (Senator Hervieux-Payette): Since we are postponing this item to the meeting after the next one, we will be able to get the report before that meeting and have time to look at the text. If we are not in agreement totally with the content of it, we can make other arrangements. We have enough time to review the report and make comments if it does not reflect the wishes of the committee.

In fact, we are waiting for the preparation of a report. We will not do anything until then and we will study the report at our meeting after next. Is it agreed?

Some Hon. Members: Agreed.

The Joint Chair (Senator Hervieux-Payette): Carried.

[Translation]

SOR/96-522 — CANADA PENSION PLAN REGULATIONS, AMENDMENT

(For text of documents, see Appendix p.)

Our next item of business is the Canada Pension Plan Regulations, amendment.

Mr. Jacques Rousseau (Counsel): SOR/96-522 makes five changes to the wording of the regulations, as requested by the committee. The department has promised to amend the regulations to correct the problems identified when SOR/96-522 was examined. Counsel will therefore continue to monitor this file and will keep the committee apprised of any developments.

The Joint Chair (Senator Hervieux-Payette): I see that there appears to be good faith on both sides. Are there any questions or are members satisfied with this report? Then we will await further developments.

Some Members: Agreed.

SOR/98-59 — TIME LIMIT FOR THE APPLICATION OF SUBSECTION 118(1) OF THE CUSTOMS TARIFF REGULATIONS

The Joint Chair (Senator Hervieux-Payette): Our next item of business is the Customs Tariff Regulations.

Mr. Rousseau: When I wrote the letter to the department concerning these regulations, I wrongly identified the enabling provisions and the department's response is quite correct. The regulations do not pose any problems whatsoever and therefore, this file can be closed.

[English]

M. Wappel: On this file, I should like to know why it was even brought to our attention. There was nothing wrong with the clause, there was no reason for us to know that Mr. Rousseau had made an error. So what? Everyone makes errors. There is nothing remarkable about this file other than his nice apology to Mr. Wright. I wondered why it was put in here in the first place.

[Translation]

Mr. Rousseau: We do not make mistakes very often, but when we do, we own up to them.

[English]

The Joint Chair (Senator Hervieux-Payette): I suppose it was pure courtesy to apologize. It helps with the relationship with the department. Usually when we make an intervention it is to underline their mistakes, so if we make one perhaps it is normal that we admit it.

M. Wappel: This is by way of penance, I suppose.

Mr. Bernier: There is also the point that counsel act only on behalf of this committee. If we write, we are writing on behalf of this committee, and this committee is entitled to see what we have done. That is primarily the reason this is here.

The letter was sent in our capacity as counsel to this committee. This committee, which exercises the mandate, must then see that correspondence.

M. Wappel: Mr. Bernier, I do not want to flog it, but does that mean that we see every piece of correspondence that goes out of your office?

Mr. Bernier: Unless it is officially a preliminary piece of correspondence in the sense that I personally would like you to tell me such and such. We do not really do that, however.

We either get the information once we write, if we are writing officially, as Mr. Rousseau did here, or we do not. Even though the wrong section was identified, it was done in the course of his official duties as counsel, and that, then, comes to the committee.

The Joint Chair (Senator Hervieux-Payette): Next item.

[Translation]

The next item of business, under the heading New Instrument, is SI/97-28 — TEMPORARY ENTRY REMISSION ORDER, NO. 50

Mr. Rousseau: Four separate drafting errors were brought to the department's attention. It has promised to take the necessary steps to ensure that future orders will not contain errors of this nature. This file can now be closed.

SOR/96-166 — MINIMUM HOURLY WAGE ORDER, 1996

SOR/96-167 — CANADA LABOUR STANDARDS REGULATIONS, AMENDMENT

(For text of documents, see Appendix p.)

The Joint Chair (Senator Hervieux-Payette): The next item of business, under Reply Unsatisfactory, is SOR/96-166, Minimum Hourly Wage Order, 1996.

Mr. Rousseau: Counsel for the committee expressed some doubts as to the validity of these regulations which deal with the exercise of authority conferred under the Canada Labour Code. The Minimum Hourly Wage Order, 1996 came into force two and a half months after the date of publication of the order, whereas according to section 178(3) of the Code, the order should not have come into force until at least three months after the date of publication.

The Governor in Council overstepped its authority by specifying a date in the order which it was not authorized to specify. The department's response to this has been unsatisfactory in that it has considered this matter simply in terms of the publication requirement. In fact, the issue here is the legal requirement imposed by Parliament, by the Governor in Council, regarding the date of the coming into force of the order.

Counsel also expressed some reservations about the authority of the Governor in Council to set a minimum wage rate that varies from province to province. The department responded that the enabling authority was very broad and to substantiate its position, noted the following:

[English]

(Mr. Rousseau continuing)

This is supportable on principles of administrative law on executive decisions of the Governor in Council which should not be questioned.

[Translation]

If I understand the department's reasoning, it would mean that any regulations adopted by the Governor in Council are valid, simply by virtue of this fact. The department's arguments are not well founded and its response is unacceptable. In my view, the issue needs to be clarified for the future. Therefore, we should continue this exchange of correspondence, even though the Canada Labour Code has since been amended and the department has announced its intention of repealing these two instruments.

[English]

M. Wappel: When I read this, I must confess that I was persuaded by the department's letter. They are talking about it being mandatory or directory, substantial compliance 81 per cent of the time, and so on. The two matters will be repealed anyway.

I listened carefully to counsel and I take it that you are recommending that we adopt the approach that this is not directory but mandatory, or are they completely mischaracterizing the issue?

Mr. Rousseau: I think you are right. This is a mischaracterization. They say it is a procedural matter, whereas we say it is a matter of power that Parliament has delegated to the Governor in Council.

They say that it is a matter of publication requirement, which it is not. Their whole argument is based on the fact that they think it is a procedural requirement.

M. Wappel: Do you not think that the subsection is procedural in spirit; namely, requiring three months in order for people to know that the order will come into effect? It could have as easily said two months or five months.

Mr. Rousseau: This provision entitles the Governor in Council to fix a date for the coming into force, but it is specified that it should not be less than three months after publication. The Governor in Council does not have the power to prescribe that it will be less than three months and that is what he did.

M. Wappel: That was obviously a slip by the department. They do not want to admit it now.

The Joint Chair (Senator Hervieux-Payette): There are discrepancies in the legislation. Sometimes we say 60 days, sometimes it is 90 days. Since the legislation is not all the same, they must have thought that since they were granting a superior minimum wage, they were not depriving anyone of any rights. It does not change the fact that if the enabling legislation states 90 days, you cannot necessarily institute through the regulations a different time-frame. In this case, Mr. Rousseau is right.

On the question of various minimum wages from province to province, this is an unusual thing, do you not think?

The Joint Chairman (Mr. Grewal): Yes.

The Joint Chair (Senator Hervieux-Payette): To have a different minimum wage from province to province is a bit odd for a federal government, is it not? I find that strange. Did you receive an explanation? We received an explanation, but it was not very convincing. They say that we do it because we are allowed to do it. What is happening now? Is the regulation still in force even though they have changed the law?

[Translation]

Mr. Rousseau: No. As the department explained, these regulations no longer apply. They have been superseded by legislative amendments.

The Joint Chair (Senator Hervieux-Payette): What is Counsel's recommendation then?

Mr. Rousseau: That we stay on this file and resolve these outstanding issues so that in future, should a similar problem recur, we will know where we stand.

The Joint Chair (Senator Hervieux-Payette): Then we should expect an update from you.

[English]

The Joint Chairman (Mr. Grewal): For my information, in the United States, is the minimum wage different in different states or is it the same all over the country?

Mr. Rousseau: I cannot answer that. I would have to look at the act as it is written now. Unfortunately, I have not done that.

Mr. Bernier: I am not even sure that the United States have a minimum wage.

The Joint Chair (Senator Hervieux-Payette): They do.

Mr. Lee: I agree that we should proceed as proposed. However, on page 3 of the reply from the department is a phrase that says, executive decisions which should not be questioned.

I am curious about that. I find the phrase startling. It does not say by whom it should not be questioned. It does not even attempt to relate it to law or principles of interpretation or anything else.

Do you have any comment as to whether or not there is a mistake that they have made, or is it something more serious?

Mr. Rousseau: No, it says it should not be questioned, period.

When the Governor in Council makes a regulation, everyone will assume it is valid. The person who challenges it will have to prove that there is something wrong. In that sense, there is a principle that a regulation made by the Governor in Council or any other regulatory authority is valid. However, that does not mean that it cannot be questioned. That is the way they have stated their principle. They seem to believe that once it is made, it is valid.

Mr. Lee: Counsel, you believe they are simply referring to this so-called presumption of validity, rather than anything else when they use that phrase. Is that correct, or is it your hope that they are referring to that principle?

Mr. Rousseau: I would hope that is what they are doing, but I am far from sure. They appear not to understand the principle.

Mr. Lee: This is not a mistake in translation, is it?

Mr. Rousseau: No.

Mr. Lee: We have not lost a nuance because of translation here, have we?

Mr. Rousseau: No.

Mr. Lee: This particular individual, Mr. Ian Green, says that executive decisions of the Governor in Council should not be questioned. I am rather troubled by that because that is our job here. Scrutiny involves a great deal of questioning, and that is precisely the purpose of our committee. He is in fact negating this parliamentary initiative of Parliament. I prefer not to see that left unaddressed in future correspondence.

[Translation]

Mr. Saada: Pursuant to the regulations, the minimum hourly wage in Quebec would be set at $6.45. Unless I am mistaken, it is slightly higher than that at the present time. I seem to recall reading that there was some concern about harmonization. How can we adopt regulations, for the sake of harmonization, which do not provide for the same provincial minimum hourly wage already in effect?

Mr. Rousseau: We are talking about a 1996 order. Things may have changed since then.

Mr. Saada: You are telling me then that as provinces make adjustments, so too does the federal government. Therefore, if ten provinces take steps to change the minimum hourly wage, each province amends the regulations to adjust accordingly. Is that correct?

Mr. Rousseau: I am assuming that that is what happens.

The Joint Chair (Senator Hervieux-Payette): In any case, I think departmental officials need a brief lesson in the law and need to understand that there is a scrutiny of regulations committee which has the right to question the validity of regulations. I think the role of each party needs to be clarified. Is everyone agreed?

Some Hon. Members: Agreed.

SOR/98-258 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS

(For text of document, see Appendix p.)

The Joint Chair (Senator Hervieux-Payette): We now continue with SOR/98-258, Regulations amending the Canada Pension Plan Regulations.

[English]

Mr. Bernier: At issue here, Madam Chair, is section 8(1.1) of the Canada Pension Plan Regulations. That section purports to give a deemed employer a statutory right of recovery against the actual employer of a person for contributions paid by the deemed employer.

At the outset, I want to make it clear that no one is questioning the desirability of such a provision. What is questioned is the existence of proper statutory authority to enact it.

The department is adamant that the provision is authorized by section 40(1)(f) of the Canada Pension Plan. This section authorizes the making of regulations respecting the manner in which any provision of the act that applies to an employer shall apply to a deemed employer. Section 8(1.1) does not specify the manner in which a provision of the act applicable to an employer will apply to a deemed employer. There is, in fact, no relevant provision dealing with recovery or the rights of a deemed employer vis-à-vis the actual employer.

In their last letter, the department decided to also invoke section 40(1)(a) of the CPP, a general enabling power to make regulations for the purposes of the act. The department argues that the purpose of the act is to provide for the determination and collection of premiums by the government, and that a regulation that confers a right of recovery on a deemed employer against an actual employer with respect to contributions paid by the deemed employer fulfils this purpose, since our goal is to collect contributions from employers.

This is nonsense. It is correct that the purpose of the CPP is the determination and collection of premiums. Those premiums will be determined and collected, whether from actual employers or deemed employers. Once that is done, the statutory purpose is fulfilled.

Whether or not the regulations also seem to define the private rights of actual employers vis-à-vis deemed employers has no connection whatsoever to the statutory purpose of ensuring enough premiums are collected for purposes of the CPP.

In the last paragraph of his letter of November 19, Mr. Wright states:

We feel that the Department, in addition to its responsibility in collecting contributions —

— which is, indeed, its statutory responsibility —

— also has a responsibility towards those who pay Canada Pension Plan contributions on behalf of others. This regulation would provide for the same protection for deemed employers under the CPP as it does for Employment Insurance premiums.

However, the Employment Insurance Act expressly authorizes this sort of provision for UI premiums and the CPP does not. What Mr. Wright is really saying, as I read it, is that this is a good policy, and therefore the government must have authority to make up for Parliament's failure to address the matter in the CPP. I am afraid this is not how law works. I would suggest that if the matter is to be pursued, it be pursued with the responsible minister in order to speed things up.

The Joint Chair (Senator Hervieux-Payette): Are there any questions?

M. Wappel: In the spirit of Mr. Rousseau's admission of a mistake, I want to pay Mr. Wright a compliment on the record in terms of the swiftness of the correspondence between Mr. Wright and this committee. I note that the correspondence is about one month between letters. This was in the middle of the summer. In the last letter, he was able to respond within approximately one month, after having gone to the regulations section of the Department of Justice to further buttress his opinion. Mr. Wright's attention to our correspondence could well be used as an example to other deputy ministers and other departments.

Having said that, what good will it be to pursue this with the minister, who will go to his deputy minister, who will assure him that everything is okay? Why should the minister take our word over that of his deputy minister, who has examined this matter, both through his own legal department and, also, the regulations section of Justice. Both are agreed that we are wrong. We must do something more than advise the minister because I am certain that the minister, on the basis of one letter from this committee, will not overrule his deputy minister's considered legal opinion.

The Joint Chair (Senator Hervieux-Payette): We could file an amendment to this legislation that is in the same spirit as the UI payment. The article exists in the other piece of legislation, with the intent to do what has been done here, but here, the article is not in law. We have a good argument in saying that there is an enabling clause in the UI statutes, and none in his. In fact, this regulation is flying in the wind, attached to nothing, except the general spirit of the law. We could make the same argument for every piece of legislation.

We could say that we have the regulation because it is in the spirit of the law.

M. Wappel: I was not suggesting that we do nothing. Please do not misunderstand.

The Joint Chair (Senator Hervieux-Payette): No, but we are looking for the best remedy.

M. Wappel: I was hoping that Mr. Wright would have said at the end, Notwithstanding everything we have said, we will seek an amendment just to ensure that all ends are tied. However, he did not do that. He is absolutely convinced that he is right. I am not suggesting that we do not write to the minister. I am only saying that I think it will be a waste of time because the only person the minister will ask is his deputy minister, and we already know what the deputy minister will tell the minister. This is a difficult one.

Mr. Lee: I believe that, at a minimum, we must advise the minister of our disagreement with his department. We must write to the minister saying that we disagree. What action we or he might take after that will be determined in the future. However, we must raise the disagreement to the top drawer and then take a decision as a committee on what we wish to do.

Some of this legislation has been replaced.

The Joint Chair (Senator Hervieux-Payette): The Canada Pension Plan?

Mr. Bernier: This is all current.

Mr. Lee: None of this is moot? It is all current?

Mr. Bernier: Yes.

Mr. Lee: Thank you.

The Joint Chair (Senator Hervieux-Payette): Do we go any further than saying that we are not satisfied with your answer and we still believe that the regulation is invalid because you do not have an enabling clause, or do we go a step further, asking him to be prepared to make an amendment to the law and stating that this would be the proper way to deal with this problem? I would be prepared to go to that stage because that is our role.

Is that agreed?

An Hon. Member: Agreed.

The Joint Chair (Senator Hervieux-Payette): That is carried.

[Translation]

SOR/91-608 — DISTILLERY REGULATIONS, AMENDMENT

SOR/98-334 — REGULATIONS AMENDING THE DISTILLERY DEPARTMENTAL REGULATIONS

(For text of instruments, see Appendix p.)

The Joint Chair (Senator Hervieux-Payette): Our next intoxicating item of business is the Distillery Regulations.

Mr. Rousseau: The department has informed us that the promised amendment should be made in 1999, following the adoption of the new Excise Act. Counsel will continue to monitor the situation and will keep the committee apprised of any developments.

SOR/93-611 — NORTH PACIFIC MARINE SCIENCE ORGANIZATION PRIVILEGES AND IMMUNITIES ORDER

SOR/94-562 — NORTH PACIFIC ANADROMOUS FISH COMMISSION PRIVILEGES AND IMMUNITIES ORDER

SOR/94-563 — ICAO PRIVILEGES AND IMMUNITIES ORDER

The Joint Chair (Senator Hervieux-Payette): Next up is an order relating to marine science.

Mr. Rousseau: In its letter of May 5, 1998, the department announced that the promised amendments to this order would be brought in very shortly. These changes have yet to be made. Counsel should write to the department and request a status report.

The Joint Chair (Senator Hervieux-Payette): Do anadromous fish swim backward? What are anadromous fish exactly?

Mr. Bernier: The term refers to salmon, to fish that swim in both salt water and in fresh water.

SOR/90-21 — NON-SMOKERS' HEALTH REGULATIONS

The Joint Chair (Senator Hervieux-Payette): Our next item of business is the Non-Smokers' Health Regulations.

Mr. Rousseau: As explained in the note, the only outstanding issue as far as this file is concerned is the relatively minor discrepancy between a form contained in the regulations and section 143 (3) of the Non-Smokers' Health Act. The discrepancy concerns the amount of time a person has to enter a guilty plea in relation to an offence by signing the appropriate form.

Initially, an amendment was promised. Today, the relevance of such an amendment is no longer obvious, given that the amendment was intended to establish a single uniform scheme for ticketing offences, with the gradual introduction of agreements with the provinces under the Contraventions Act. Thus far, agreements have been entered into with four provinces and, according to the department, the remainder should be coming on board this year.

The committee could decide either to close this file here and now or to monitor progress until such time as the schemes now in effect pursuant to the Non-Smokers' Health Act have been supplanted by these agreements.

The Joint Chair (Senator Hervieux-Payette): Given the process currently under way, there is little point in insisting that we proceed with this amendment because it will not apply in any event.

Mr. Rousseau: That is correct.

SOR/97-471 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS

(For text of instruments, see Appendix, p.)

The Joint Chair (Senator Hervieux-Payette): The next item is SOR/97-471.

Mr. Rousseau: In this particular instance, the Governor in Council has placed a condition on the exercise of the discretion conferred on the department, pursuant to the Income Tax Act. The validity of this condition has been challenged. In its response, the department says it is unclear whether the authority to set conditions like this through regulations in fact exists.

Nevertheless, the department decided, for administrative reasons described in its letter, to impose this condition. It should be noted, however, that the department did announce it was repealing the provision in question, that is section 600(b).1 and that has in fact already been done. The committee could decide that this constitutes a satisfactory response, given that the provision has been repealed and there would be little point in pursuing this matter further.

SOR/95-467 — VETERANS BURIAL REGULATIONS

SOR/95-468 — LAST POST FUND REGULATIONS, 1995

(For text of documents, see Appendix p.)

The Joint Chair (Senator Hervieux-Payette): As everyone appears to be in agreement, our next item of business is SOR/95-467.

[English]

Mr. Bernier: Madam Chairman, I will deal first with the point raised in the covering note. Section 4(2) of the regulations authorizes the minister to provide financial assistance to persons who are not otherwise eligible under these regulations. The grant of this discretion in this case is both proper and legal. Any time a discretion is granted, of course, one expects that there will be some criteria in accordance with which it is exercised.

The criteria for the exercise of the discretion under section 4(2) has been set out in Volume 4 of the departmental policy manual. Counsel felt that the nature of the criterion was such that it should at least be drawn to the attention of members.

According to the manual, assistance toward last sickness, funeral, burial and cremation will be provided on a discretionary basis to persons who are not eligible where the conclusion is reached that, the case is sensitive or exceptional in nature and, if not actioned by the Department, likely to cause embarrassment for the Minister or the Department.

Apparently, the merits of the case are not as relevant as the ministerial and departmental press profile.

As I said, this has been brought forward for the information of members, as the manner of exercising lawful discretion is not something that is truly within the mandate of the committee. Nevertheless, it strikes me as an inappropriate criterion to exercise a discretion based upon whether or not embarrassment will result for government officials.

Turning to the Veterans Burial Regulations, 1995, and the Last Post Fund Regulations, 1995, a number of provisions were the subject of an extensive exchange of correspondence.

In 1998, the department drafted proposed Veterans Burial Regulations, 1998, which would replace both sets of regulations. A draft of those proposed regulations has been sent to counsel. Many of the issues raised in the 1995 regulations are dealt with in the draft regulations. Some other issues have been answered or addressed satisfactorily.

The draft regulations will be made after passage of amendments to the enabling legislation. Those amendments are contained in Bill C-61, which received first reading in the House of Commons on December 2, 1998. That proposed legislation also resolves some of the concerns raised in connection with the 1995 regulations, in particular issues concerning the validity of a number of provisions.

This brings me to Mr. Bernhardt's letter of April 2, 1998, which identifies the outstanding issues that would remain after the proposed new regulations are adopted.

With respect to the issue dealt with in the first item of that letter, counsel was informed, in a telephone conversation, that this matter would be addressed in future legislation, in the second round of amendments to the statute. Obviously, a written confirmation of this should be sought.

The issues dealt with in the second and third items would also be resolved following passage of Bill C-61.

With regard to the fourth item, we have not received a reply from the department. Such a reply should be sought.

Mr. Lee: Given that there is a bill before the House of Commons now — and it sounds like it is at second reading stage — was there any indication why these minor amendments to the legislative scheme could not have been incorporated or could not now be incorporated into the statute? If we have an amending vehicle now before the House of Commons and we have recommended changes and they have accepted in principle our recommendations, is there not a way to modify the current bill before the House of Commons?

Mr. Bernier: I assume you are referring to the telephone conversation that I mentioned with respect to the first item.

Mr. Lee: Yes, that is right.

Mr. Bernier: Obviously, the window is there. I simply assume that this exchange of correspondence took place after the drafting of Bill C-61 had been completed. The department did not want to reopen their draft legislation.

The Joint Chair (Senator Hervieux-Payette): It was only tabled in December. All our interventions are prior to the tabling of the bill.

Mr. Bernier: Obviously, if there is a will, there is a way.

Mr. Lee: The train that leaves the station is not the train that leaves the departmental parking lot; it is Parliament's train.

The Joint Chair (Senator Hervieux-Payette): I am sure you will do a good job in the house. If not, we will correct it.

Mr. Lee: It is worth looking at.

Mr. Bernier: If we are to write again, then we can ask the department why this possible amendment cannot be included at report stage in Bill C-61 or at committee stage.

Mr. Lee: Let us piggy-back it.

M. Wappel: I was about to suggest that counsel write and ask the department to put these amendments forward at committee stage. If the department refuses or does not give an undertaking to do so, perhaps the chairs should ask to appear as witnesses before the committee reviewing the legislation to offer this committee's viewpoint on the specific amendment put forward. That would smoke the department out as to whether or not they agree with that particular amendment.

In the letter of November 4, 1998, it is interesting how people phrase things. It states, in part, on the first page of the letter:

When the legal opinion was subsequently received, it was found that it did not contradict your opinion... In other words, it agreed with your opinion.

Senator Moore: That is right.

M. Wappel: However, they put it in the negative as opposed to the positive, which is kind of interesting.

With respect to the phrase likely to cause embarrassment for the minister, when I read that I thought what is more likely to cause embarrassment for the minister is if it became public, or widely known, that this is the criterion for whether or not to support a worthy case.

I am wondering if we should write to the minister. I have no doubt that he would not have a clue of what is on page 75 of Volume IV of the Veterans Program Policy Manual. Why should he? Perhaps we should write to the minister directly, pointing this out and leave it at that. I suppose I could talk to him in the house. However, this committee could state in an official letter that we think it is rather inappropriate criteria to discuss what is a worthy case and whether or not it is an embarrassment to the minister, much less the department. Who cares if the department is embarrassed?

The Joint Chair (Senator Hervieux-Payette): We are talking about a directive and not a regulation. I agree with you, Mr. Wappel.

As to a remedy, what is your suggestion, counsel?

Mr. Bernier: As I mentioned before, strictly speaking, this is not within the jurisdiction of this committee. This committee is empowered to review statutory instruments and certain other matters. We are not dealing in this case with a statutory instrument but the way in which the law is being administered by a department. We drew it to their attention.

If the committee wants us to draft a letter for the chairman, we will. My suggestion is that this is, perhaps, the sort of matter that might be best dealt with individually by members. They have the information. Members individually, if they feel so inclined, can then contact the minister and indicate to him that they do not think this is an appropriate basis upon which to decide whether a deserving case should get financial assistance from the federal government.

The Joint Chair (Senator Hervieux-Payette): They needed a regulation to write the administrative document. If the regulatory discretion is so wide that it is not appropriate or could be very embarrassing, then, perhaps, we could write to the minister and say, in a friendly manner, and say as much. I think you can find the right wording to convey that message.

Mr. Bernier: The committee could always request the criterion on the face of the regulations and see if the minister is willing to impose an amendment that would add the criterion to the regulation itself.

The Joint Chair (Senator Hervieux-Payette): Where do we want to see it, in the law or in the regulations?

M. Wappel: I would not want to make a federal case out of this. I was thinking more that a word to the wise is enough. If not, then at least it has been brought to their attention. I can speak to the parliamentary secretary, for example, and ask him to bring it to the attention of the minister.

I agree with you, Madam Chair, that if it came from here it would have some weight to it.

The Joint Chair (Senator Hervieux-Payette): Yes, as friendly advice. Is it agreed?

Some Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): I know it is not within the scope of the committee but have you ever come across a situation where a veteran who died outside Canada had to repay pension? Is it part of this whole process?

Mr. Bernier: No. I will have to look into that. That is another question.

[Translation]

SOR/96-521 — OLD AGE SECURITY REGULATIONS, AMENDMENT

(For text of documents see Appendix p.)

The Joint Chair (Senator Hervieux-Payette): Could you bring us up to date on the status of this file, Mr. Rousseau?

Mr. Rousseau: The department has agreed to amend section 29 and to repeal section 43. It supplied a satisfactory answer to the questions raised in connection with the wording of section 27.2. SOR/96-521 corrects the French version of section 28, as requested by the committee.

The Joint Chair (Senator Hervieux-Payette): Therefore, the outcome is satisfactory.

Mr. Rousseau: Yes. We will continue to monitor the situation and to keep the committee apprised of any developments.

The Joint Chair (Senator Hervieux-Payette): Fine.

SI/89-119 — GENERAL EXPORT PERMIT NO. EX.11 — LIBYA

SOR/94-232 — GENERAL EXPORT PERMIT NO. EX.28 — ANGOLA

(For text of documents, see Appendix p.)

SI/98-12 — ORDER AMENDING THE EXPOSED AND PROCESSED FILM AND RECORDED VIDEO TAPE REMISSION ORDER

(For text of documents, see Appendix p.)

SOR/96-294 — CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

(For text of documents, see Appendix p.)

SOR/97-491 — REGULATIONS AMENDING THE NAV CANADA DIVESTITURE REGULATIONS

(For text of documents, see Appendix p.)

SOR/98-58 — TEMPORARY IMPORTATION (TARIFF ITEM NO. 9993.00.00) REGULATIONS

(For text of documents, see Appendix p.)

SOR/98-286 — REGULATIONS AMENDING THE PUBLIC SERVICE SUPERANNUATION REGULATIONS

(For text of documents, see Appendix p.)

Mr. Bernier: If the committee has no objections, we can deal all at once with the regulatory instruments listed under Action Promised. Promises were made to amend seven regulatory provisions, as well as one promise to bring in a legislative amendment.

Moving on now to the statutory instruments listed under Action Taken.

[English]

Those instruments affect some 13 amendments requested by the committee. In one case, a repeal of the regulations has solved the problem, and, in one instance, Parliament was asked to legislate to validate certain payments that had been made illegally.

The Joint Chair (Senator Hervieux-Payette): In summary, they agree with our recommendations and they will act upon them?

Mr. Bernier: Yes.

[tTranslation]

The Joint Chair (Senator Hervieux-Payette): We are simply monitoring the situation to ensure that they follow through on their promise.

SOR/96-331 — UNEMPLOYMENT INSURANCE REGULATIONS, AMENDMENT

NATIONAL EMPLOYMENT SERVICE REGULATIONS, REPEAL

(For text of documents, see Appendix p.)

SOR/96-434 — REGULATIONS AMENDING REGULATIONS MADE UNDER THE UNITED NATIONS ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix p. )

SOR/96-445 — EMPLOYMENT INSURANCE (FISHING) REGULATIONS

(For text of documents, see Appendix p.)

SOR/96-510 — SCHEDULE TO THE ACT, AMENDMENT

(For text of documents, see Appendix p.)

SOR/96-523 — REVIEW TRIBUNAL RULES OF PROCEDURE, AMENDMENT

(For text of documents, see Appendix p.)

SOR/96-524 — PENSION APPEALS BOARD RULES OF PROCEDURE (BENEFITS), AMENDMENT

(For text of documents, see Appendix p.)

SOR/97-262 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS

(For text of documents, see Appendix p.)

Mr. Bernier: As I just said, 13 amendments were made.

The Joint Chair (Senator Hervieux-Payette): Our next meeting will be on March 4. Everything appears to be in order. Are there any further questions concerning these proposed statutory instruments?

[English]

Mr. Lee: I wish to indicate to counsel my continuing interest in the Hamilton Harbour Commission matter. I know it will come up on a future agenda.

Mr. Bernier: Shall I put it on the agenda for our meeting on March 4?

Mr. Lee: If the agenda is not too crowded. Counsel and the clerk can make up their minds as to when it should come forward but it is something that I should like to address sooner rather than later.

The committee adjourned.