Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 5 - Evidence

OTTAWA, Thursday, May 4, 2000

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 9:00 a.m. for the review of statutory instruments.

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

[Translation]

The Joint Chairman (Senator Hervieux-Payette): We will now proceed with our agenda.

[English]

Mr. François-R. Bernier, General Counsel to the Committee: I was wondering if, perhaps, Mr. Saada could have indicated whether he had a chance to get in touch with the Minister of Justice regarding the informal meeting the committee wanted to have with the minister on the disallowance procedure. I thought he would be here today, he is not.

I take it that neither Mr. Lee nor Mr. Wappel know anything about that?

Mr. Lee: I recently had a conversation with the Minister of Justice and it was a useful discussion. I am afraid that I cannot provide a crisp, sharp report card -- that will take another few days. At the next meeting, I should like to be able to report some sharp progress.

Mr. Bernier: On another subject, I would ask, perhaps, our Senate Clerk to report to the committee in regard to the committee requesting the appearance of the Minister of Transport in relation to a total of four files. Ms Joseph has been trying for about two months to obtain the appearance of the minister, without success. However, she can report on where this matter is going because time is running out. The committee wanted to see the minister before the summer adjournment.

Ms Jill Anne Joseph, Clerk of the Committee: I was first in touch with Jean-Paul Boulais at Parliamentary Affairs, Transport, on March 9. I faxed him the letters that had been sent to the minister so that he would know what he was looking for.

He was able to give me a definitive answer to the committee's invitation on April 11. We had suggested dates of May 11 or May 25 for the minister to appear. He indicated that neither of those dates worked. I asked whether the minister indicated any time that would work and the answer was no, but he would check. I said that the committee was interested in having the minister before the summer adjournment.

I have only been able to speak with him again this week -- we have spoken in between, but to receive an answer from him this week as to where this matter stands. He says that departmental staff prepared responses to three of the files before the minister and there is one pending. Once they have the package of responses prepared, they will provide those to the minister, he will review them and then decide whether or not he will be able to make himself available to appear before the committee before the summer adjournment or provide some other response to you.

That is where the matter stands. We have been attending to the matter, but we do not have anything positive to report.

Mr. Wappel: Could we have our memories refreshed as to why we wanted the minister before us? Was it in order to obtain the answers, or was it something else?

While Mr. Bernier is looking for the answer, it is obvious that if the purpose of asking him to come here was to get the answers and if it appears the department is working to give us the answers, then I suppose there is no point in him coming.

If this is merely a delaying tactic and it takes him three months to look at the responses that his department gave to him before he puts his signature to them, we are already into September or October.

Before I make one of my typically bull-in-the-China-shop suggestions, perhaps I could hear Mr. Bernier tell me what our purpose was.

Mr. Bernier: The first file, Mr. Wappel, was transportation regulations. This was an amendment promised to the committee where the committee is suddenly informed by the Canadian Transportation Agency that it will not make the amendment because of a policy review that is underway and that the minister has requested that no further amendments be made until the policy review is concluded.

This raises a question of the exercise of its regulation-making discretion by the agency. An agency cannot be dictated to in the exercise of a law-making function, be that by the Minister of Transport or whomever. That was one issue.

The railway interswitching involved illegal ultra vires regulations. The committee then received a letter from the minister which clearly implied that despite what the committee understood, which was that the illegal practice had ceased, the illegal practice is ongoing. In fact, the minister supports the continued illegal practice until such time as a study can be done.

The next file related to the Canada Ports administration bylaw. In this case, we had received a letter dated July 10, 1996. This was one file where the committee simply could not obtain a reply out of the former Canada Ports Corporation.

Mr. Wappel: That is enough. It is obvious that we are being jerked around by the department, and in one case the minister himself proposes to proceed, implement and carry on with practices that this committee considers ultra vires.

Mr. Bernier: The last file was the Chandler subdivision report. There was a complete failure to answer the central question, which was: What statutory language supports the position of the department?

Mr. Wappel: We have run into these problems before. We ran into them with the previous Minister of Justice, who was simply too busy to appear before a committee. I have made the same suggestions before. They always seem to be rejected. Fine, if we want to have ourselves walked all over, that is okay.

I recommend that we subpoena the minister to appear here at the last regularly scheduled meeting of June. That will give him a good impetus to get the answers to us. I recommend that we do not pussy-foot around on this, subpoena him.

The Joint Chairman (Senator Hervieux-Payette): If he does not come, do we send him to jail?

Mr. Wappel: We have the power to report that. I believe it would be up to the Senate and the House of Commons to make that decision.

The Joint Chairman (Senator Hervieux-Payette): I am being told by our Clerk that we can only invite, we cannot subpoena a minister.

Mr. Wappel: I do not agree with that. This committee has the power to summon any witness, including a minister of the Crown. We have already heard that from the deputy Minister of Justice when he appeared before us, as I recall it. We do not have to fear from Crown ministers, nor do we have to kow-tow to them, as far as I know.

The Joint Chairman (Senator Hervieux-Payette): We will proceed, with all the legal authority, to request the attendance of the minister, if that is the committee's wish.

Mr. Wappel: If we do not, Madam Chair, we will not see this file back before November.

The Joint Chairman (Mr. Grewal): I agree with Mr. Wappel.

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

Senator Cochrane: Could the deputy minister not answer these questions?

Mr. Wappel: I am sure that the deputy minister could. However, we have heard that the minister is in favour of an ultra vires regulation. That is a huge problem. If the minister himself believes that something that this committee believes is illegal is perfectly okay, I do not think the deputy minister could answer those questions. Presumably, the deputy minister is answering the rest of the questions on behalf of the minister, who will review the answers and sign the letter if he accepts them.

Senator Cochrane: Are you saying that since 1996 there has been a policy review and that, until this time, the minister has done nothing about this?

Mr. Bernier: In this particular file, which is Canada Ports Corporation, there was obvious deliberate delay by the corporation. They simply did not want to deal with an issue of validity. They knew, of course, that legislation was coming in that would result in their demise. They quite obviously and deliberately dithered until such time as they could say that since they were disappearing as an entity they would not answer us. The committee did not like that answer and decided that the Minister of Transport should provide the answer.

Senator Cochrane: Therefore, he is not dealing with this problem?

Mr. Bernier: The clerk has indicated that perhaps some replies are being prepared.

The Joint Chairman (Senator Hervieux-Payette): We are saying that it is illegal, senator, but the minister's advisors are telling him that it is legal. Therefore, we have a difference of opinion.I do not think that he deliberately wants to do something illegal. It is our job to interpret whether a regulation is within the framework of the law. In this case, there is total disagreement. We continue to disagree after a number of discussions.

I think we should proceed with the recommendation of the committee.

I should inform you that we phoned Mr. Saada's office. He does not yet have the final answer, but will be ready to give us the answer at the next meeting.

Mr. Wappel: Madam Chair, I have been advised that there is some technical nicety that must be adhered to with respect to an appearance by a minister. I do not pretend to be in any way an expert, but I understand that a minister cannot be issued a certificate to attend but can be ordered to attend. In order for the minister to be ordered to attend there must be a motion moved and passed by the committee.

Assuming that my understanding is correct, I move that the Minister of Transport be ordered to attend before this committee at a regularly scheduled meeting of this committee, not later than the end of the session, to respond to the questions and concerns put into our letter to the minister.

The Joint Chairman (Senator Hervieux-Payette): Is that agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): We have a consensus.

With regard to the Commonwealth conference, there has been a long discussion. We were supposed to be competing with Zimbabwe, although as far as I was concerned I was not entering a competition. We had a request. Eventually, the secretariat of the conference was transferred to New Zealand. New Zealand originally suggested that Zimbabwe should be the host of the conference. However, Zimbabwe is now planning to have some elections.

We have much correspondence but we do not seem to have made much progress. I have not pushed for more money because our previous attempt to get more funding was not received with much enthusiasm.

Therefore, I would like to stand this matter until the Commonwealth people have put their house in order. There is no need to obtain money for a conference when we do not even know whether it will be held here. It does not seem that they are in favour of coming to Canada. The Australians remain supportive, but we have received no positive support from New Zealand, so it does not seem that it will happen this year.

Therefore, I think that we should just let that stand in abeyance for now.

SOR/96-44 -- ROYAL CANADIAN MOUNTED POLICE PUBLIC COMPLAINTS COMMISSION RULES OF PRACTICE, AMENDMENT

Mr. Bernier: The committee in this case had queried provisions that allowed service of certain documents to be made at an address that appears in any previously filed document, irrespective of whether the document from which the address is taken is one that is filed by the party on whom service is effected. It was suggested by the committee that if a party is to rely on filed documents for the address of another party, that party should be restricted to using documents filed by the party on whom service is to be effected. That suggestion was rejected by the commission on the ground that it would "unduly restrict the use of previously filed documents." The joint committee did not accept this reply as disposing of the issue. I wrote to the commission on September 2, 1998 to convey the position of the committee.

Some five and one half months later, Ms Heafey wrote to inform the committee that consideration of this file has been suspended. The committee then instructed me to inform the commission that it wanted to receive a substantive reply to the September 2, 1998 letter "now, rather than at some unspecified later time in 1999." Ms Heafey has not seen fit to reply to that letter, and no further communication has been received from the commission.

Mr. Wappel: Let us call her as a witness. Let us find out why she is ignoring the committee.

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

Hon. Members: Agreed.

SOR/95-467 <#0107> VETERANS BURIAL REGULATIONS, 1995

SOR/95-468 <#0107> LAST POST FUND REGULATIONS, 1995

(For text of documents, see appendix p. 5A:1)

Joint Chairman (Mr. Grewal): I did not see the documents in my package for these items.

Mr. Bernier: There are no documents under that heading. It is there, Mr. Chairman, because in the course of time these two regulations are to be consolidated into one new regulation, which is what the committee is waiting for.

In the first exchange of correspondence, which is between the chair and the minister, the chairmen queried the appropriateness of a departmental guideline that indicated that decisions on the grant of certain benefits would turn on, shall we say, the embarrassment potential of the situation rather than on the merits of the case. The committee believed this to be inappropriate and, to his credit, the minister has agreed that it is inappropriate and has undertaken to have the matter corrected.

In the following exchange of correspondence with the deputy minister, the committee was given an assurance that future legislation will include a clause retroactively validating payments made under the civilian government employees compensation order. This is to be included in the next omnibus bill for the department.

On the second matter raised, Mr. Brunton confirms that new regulations, which will consolidate these two sets of regulations, will retain an express requirement to give notice of the making of decisions on benefits, which is something of which the committee wanted to be assured.

Overall, everything looks to be satisfactory and progress of both the legislation and the new consolidated regulations will be monitored in the usual way.

SOR/90-829 -- CANADA PENSION PLAN REGULATIONS, AMENDMENT

Mr. Bernier: Members will recall that this file was before the committee at its April 6 meeting. The immediate concern has to do with the validity of section 44(2) of the regulation, which authorizes the making of an application for a mandatory division by or on behalf of a child of a deceased former spouse. Prior to 1997, the Canada Pension Plan did not contemplate that such an application could be made by a child of a deceased former spouse. Insofar as the validity of any regulation is to be assessed by reference to the enabling statute as it stands at the time the regulation is made, section 44(2) is illegal, irrespective of the fact that in 1997 the act was changed and would now allow such a regulation to be made. Counsel sought and received an assurance that 44(2) would be re-enacted pursuant to the 1997 statute.

A letter was then received explaining that this particular amendment had been dropped and would be made later, "as part of the updating of certain benefit and obligation plans." This was the December 16 letter from Mr. Lahey that was before the committee on April 6.

At the time, members wanted to know whether there was a connection between section 44(2) and Bill C-23. Counsel undertook to look into the matter. We can report to the committee today that there would appear to be a connection and that the imminent introduction of Bill C-23 was likely the reason for which the re-enactment of section 44(2) was dropped. After passage of that legislation, the regulations will no doubt be revised and the promised action taken at that time.

Another concern of the committee, and something members wanted us to look into, was the question of the legal consequences of the invalidity of section 44(2). Having done so, it does indeed appear that by allowing divisions to be made on the basis of unlawful applications, certain pension entitlements have been detrimentally affected. This is explained in point 5 of the note that is before the committee. We reached a conclusion that it would be desirable for legislation to be adopted to retroactively validate divisions of unadjusted pensionable earnings that were made on the basis of applications submitted by persons not legally entitled to make those applications.

If the committee agrees with this last point, the committee should write a letter to the department, or perhaps the chairmen could write to the minister.

Mr. Lee: We might want to conceptually allow for the possibility that no such applications were made, but it is a very narrow circumstance. If there were, in fact, such applications made, then counsel is heading in the right direction with his advice.

The Joint Chairman (Mr. Grewal): Can they change the regulation?

Mr. Bernier: We would not be changing regulations. Parliament would be asked to validate retroactively, in effect, certain divisions of unadjusted pensionable earnings that were made in circumstances where they should not have been made. Of course, if a person was not legally authorized to request that division but was, in fact, allowed to request it and the division was made, if someone gets pension benefits, someone else loses them. That follows inevitably. Some rights were affected, so no one is questioning that the scheme was a sensible one. It was just that it was not authorized.

The question is whether members feel that this should be raised by the chair directly with the responsible minister, given that we are talking about legislation.

Mr. Epp: Is there a problem here with respect to the case where the child might be acting on behalf of the estate of the former spouse?

Mr. Bernier: I do not have the full file in front of me, but I believe that, if the child were acting on behalf of the estate, the estate was always allowed to make that application, so there would be a problem because there would be duplication. These are cases where neither the personal representative of the deceased spouse nor the estate made an application, but rather a child of the deceased spouse. As I said, prior to 1997 children were not allowed to make that application. As of 1997, they have been allowed but, unfortunately, the regulation that purported to allow those applications to be made by children was made prior to 1997, at a time when the act did not contemplate that this would be done.

However, if the child is also the administrator or executor of the estate, then there would not be a problem.

The Joint Chairman (Senator Hervieux-Payette): We have to decide if we are in a wait-and-see mode for Bill C-23 and new regulations or whether we should press for some action in between.

Mr. Wappel: Madam Chair, I think regulations will come under Bill C-23. I think it is inevitable, because as soon as the bill is given Royal Assent regulations have to be made so that the process of giving the benefits can occur. Perhaps we should write directly to the minister, because what we are suggesting is an act of Parliament to retroactively validate actions that were, or may be, or arguably could be, if they occurred, to take Mr. Lee's warning, invalid. Because we are asking for an actual act, the minister has to get behind it, because then he has to get cabinet on side. I would therefore suggest it go directly to the minister from the joint chairs.

The Joint Chairman (Senator Hervieux-Payette): This would be to correct the interim part of the time where this right did not exist but some children would have lost some rights if we were not confirming, or if they are doing it, they are doing it illegally.

Mr. Wappel: Or others, because in this case the children were given the power, in effect, to make an application in circumstances where these children would not otherwise have had an opportunity or the power to make an application. All we are trying to do is validate that which has been done, by way of legislation, and that has to be a minister's decision, I would think.

Mr. Bernier: The time period covered, of course, would be between the enactment of section 44(2), which is the regulation that allowed these children to make applications, and such time as section 44(2) is validly re-enacted under the current legislation.

The Joint Chairman (Senator Hervieux-Payette): But it will cover from 1997 until today?

Mr. Bernier: I will take a guess here. The regulation was probably made in 1996, so it would go to whenever it is re-enacted validly. Even though the act changed in 1997 and would now allow those applications to be made by children, the validity of the regulation has to be looked at in terms of the act as it stood at the time the regulation was made. It is irrelevant that a later statute of Parliament would now allow such a regulation to be made. Regulation has to be formally repealed and a new regulation made under the current act.

The Joint Chairman (Senator Hervieux-Payette): Let us be practical. If we wanted to make an amendment in the Senate on this, you would just have to confirm it in the House. Actually, this would be a window of opportunity to do it now. I know they do not want to see it back in the House but they should have done it properly. That is my impression. It should have been done in this bill. At the end of a bill, generally there is some cleaning up or reworking of a few things that have not worked well in the act. I guess we will have to go with separate actions.

Mr. Wappel: Mr. Bernier is shaking his head, but that is not a bad idea.

The Joint Chairman (Senator Hervieux-Payette): I knew you would agree to that. I have the impression that some other people will not agree.

Senator Cochrane: What is the status now of Bill C-23?

The Joint Chairman (Senator Hervieux-Payette): It is in the Senate at second reading stage.

Senator Cochrane: Do you see further delays on this?

Senator Moore: No. There will be all kinds of witnesses but I think we are okay with it now.

Senator Cochrane: I think that letter is of prime importance.

The Joint Chairman (Senator Hervieux-Payette): We should send a letter, but it would be nice if it was not as difficult to send it back to the House. It seems they have more problems than we have in the Senate.

Senator Cochrane: We have to ensure that these children are reimbursed for the time that has been spent with this legislation.

Mr. Bernier: Senator, no one, certainly not any of the children, has been deprived. The person who might have lost here is the spouse of the deceased. You are forcing a division of pensionable earnings. Let us say a couple has been divorced and the children are the children of the deceased wife, the father is entitled to a pension. Children of the deceased wife then make an application to force a division so that they get a share of the pension. His pension is reduced, so they are getting it and they have been getting it. As I say, from a policy point of view, there is no problem here. The problem is one of legality. They were not allowed and should not have been allowed. The regulation that allowed them to make that application for mandatory division is illegal. The person detrimentally affected is the spouse who has the pension because his pension has been reduced as a result of an illegal process.

The Joint Chairman (Senator Hervieux-Payette): Let us go with the letter, if it is agreed. Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): The next item is under "New Instruments."

SOR/95-256--MANITOBA FISHERY REGULATIONS, 1987, AMENDMENT

(For text of documents, see appendix, p. 5B:1)

Ms Margaret Jodoin-Rasmussen, Counsel to the Committee: The Governor in Council was given power to prescribe closed times, fishing limits and the size of fish. The Governor in Council also has the power to authorize fisheries officers to vary those prescribed closed times, fishing quotas and the size of fish. The department admits to establishing fictional closed times to permit their so-called variation at a later date. For example, a closed time from December 31 to January 1 is not intended to be effective. Rather, it is intended that the closed times actually be established by the fishery officers.

The committee has long been of the view that this approach is ultra vires, and the committee presented that view, with supporting arguments, in its seventh report. The present instrument varies this theme by establishing that the minimum length of fish that may be caught is one centimetre. This is obviously a token length, which, in effect, subdelegates the authority to prescribe the size to the fishery officers. Really, the purpose of this note is to draw the members' attention to this illegal technique described in the committee's seventh report and to say that there is little hope of finding a solution to this problem until a new Fisheries Act is enacted.

All we might suggest is that it would be sufficient perhaps that a letter be sent pointing out that the conclusions in the seventh report apply equally to this new illegal variant.

Mr. Wappel: Madam Chair, I would like to ask counsel about the result of the seventh report. What did Parliament do or not do, or what did the minister do or not do, in the face of the seventh report?

Ms Jodoin-Rasmussen: If I recall correctly -- and Mr. Bernier will help me with this if I am mistaken -- a new Fisheries Act was promised, and I think it actually started a couple of times into the process and then became defunct as the House rose, so we are back where we were.

Mr. Bernier: I do not think the new Fisheries Act was really the result of the seventh report.

Mr. Wappel: We reported something, but did we ask for a response within 180 days or we would disallow it?

Mr. Bernier: The seventh report goes back quite a few years. It was simply to put before the House the committee's view that this technique is illegal and simply a way of subdelegating regulation-making powers.

Mr. Wappel: What was Parliament's response?

Mr. Bernier: There was no formal response by Parliament that I am aware of.

Mr. Wappel: Did we request an answer? We usually do.

Mr. Bernier: At the time, I do not even think the rule allowing committees to require a comprehensive response was in place, so we did not request a comprehensive government response.

Mr. Wappel: And we consider this to be ultra vires?

Mr. Bernier: Definitely.

Mr. Wappel: Why are we not disallowing it?

Mr. Bernier: As Mr. Wappel pointed out, the proposed fisheries act, which has been attempted now twice and for the foreseeable future will not be attempted again, changed the regime in such a fashion that these illegal regulations would no longer be needed. We would also not need this sham where we pretend to fix a prescribed size of fish at one centimetre. Why not choose one millimetre while you are at it? The true intent of the provision is not to fix the size of fish but to allow the fishery officer to establish the size of fish under the guise of varying this fictional one centimetre fish.

Mr. Wappel: The point is that no fisheries act will be forthcoming. Therefore, we are still in the position that we were in when we issued the seventh report. The Fisheries Department is still doing things that are ultra vires.

Ms Jodoin-Rasmussen: Yes, and they have admitted it.

Mr. Wappel: You have now brought this matter before the committee. What is your suggestion?

Mr. Bernier: Every time we come across these provisions, we point out to the department that they are the kinds of provisions that the committee considers to be illegal. We could move to disallowance, Mr. Wappel. However, one must face the reality that, whatever this committee does and whatever the view, the management needs of the modern fishery leave precious little choice to the Department of Fisheries and Oceans but to act illegally. In the absence of Parliament acting and enacting a new act that allows modern management of the fishery -- and I mentioned this a couple meetings ago -- we are dealing with a century-old act that is simply not fit for fish or birds. They are doing what reality requires them to do. It is unfortunate that they are driven to illegal uses of power and dubious interpretations of a statute, but there is a point where necessity becomes law.

Mr. Wappel: We have seen your point, however, in numerous other files. Anything to do with aboriginal peoples has that same argument. There are many other areas where technology is moving faster than legislation. Are we now a committee that will decide things on the basis of policy? We are not in a position to decide things on the basis of fisheries policy because we are not experts in the fisheries. We can only decide things based on what I consider to be our own expertise, which is the expertise that the committee has developed over the years as to whether or not the regulations fit within the criteria that we have developed over the years. It would appear that this regulation does not.

I do not want to give the perception that I am suggesting that we move with blinders on, but we must understand what we are doing. If this provision is ultra vires, and if this committee says we will say nothing to Parliament about it because the act is old and technology must keep pace even if Parliament cannot, then that argument can be raised with the next regulation in another department with the same validity. We are then making policy decisions and not legal ones. I do not think those policy decisions are ours to make.

On the other hand, if we recommend disallowance of this particular regulation, there is a specific methodology, as I recall my readings, that must occur. If the regulation is disallowed, it will force action. If the regulation is not disallowed, then it will be Parliament that has made the decision and not this committee. That is a policy decision for the people of Canada to make, not our committee. Thus, I am hesitant to say, "Thank you very much for bringing it to our attention but we must ignore the obvious illegality because the Fisheries Act is 100 years old." So was the Harbours Act and we had the Minister of Transport change that legislation. Members will remember that they had to go back through 100 years' worth of deeds to see which ones were which. We put them through a lot of work on a technicality because the act was 100 years old, even while they were trying to update it. We should disallow these regulations because we believe they are ultra vires and let the rules that are in place with respect to such a report to Parliament proceed. It will then be up to Parliament to make the policy decision as to whether or not our disallowance stands.

Mr. Lee: I agree with Mr. Wappel. If this were a case of the department being stuck with a scenario with the intention of fixing it, that is one thing. However, in this case it appears as though the department is continuing to reuse or recycle an ultra vires, illegal practice. I would not want this committee to be seen as condoning that practice.

I am assuming that the seventh report of the committee, if we were to put it into Roman calendar years, was 15 years ago?

Mr. Bernier: Yes; 10 or 15.

Mr. Lee: If the practice is continuing to show up in new regulations, at a minimum I, for one, would want to report it to both Houses. There is only a little bit of difference in terms of the work of staff between preparing that kind of report and preparing a disallowance report. Without committing to disallowance, we may want to hear from the department if we are moving toward disallowance. I would be in favour of preparing a report. If members wish to include disallowance, that will be their will at the time. I am in favour of the direction in which we are going. Someone may wish to move that a report on the issue involving the Fisheries Act be prepared and brought back to the committee.

The Joint Chairman (Senator Hervieux-Payette): You are suggesting a two-step process rather than one. If there is no action, then we will proceed with the disallowance procedure as the second step.

Mr. Lee: In the interim, we should be notifying the department and the minister that this is where we are headed.

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

Hon. Members: Agreed.

Mr. Bernier: I will prepare a draft report to include a request for a comprehensive government response or not.

Mr. Wappel: Give us two endings.

Mr. Bernier: The second ending will be what?

Mr. Wappel: Disallowance.

Mr. Bernier: That is not an ending, Mr. Wappel, namely, a disallowance report on a matter of form. If you recall, the committee's reasons are always set out in an appendix because the rules of the House of Commons require that a disallowance only contain the disallowance resolution. The report simply states the resolution for the reason indicated and the committee then explains its reason in appendix B, for example. The form is quite different.

The Joint Chairman (Senator Hervieux-Payette): The report will be the same?

Mr. Bernier: The content will be roughly the same, yes.

The Joint Chairman (Senator Hervieux-Payette): We do not want them necessarily to appear, but we want an answer.

Do we give a time frame in terms of report and disallowance? Do we say we need to have this before the end of this session?

Mr. Wappel: Madam Chair, I suggested a disallowance report. Mr. Lee wants to take a two-step process; that is fine with me. What does Mr. Lee say about that? He wanted to notify the department. I presumed that was a matter of courtesy because I do not think the department has any wiggle room here. They only have one-centimetre fish. They cannot bring in another Fisheries Act.

Mr. Lee: I envisage this being at least a three- or four-week exercise. That may well take us into the autumn. It would provide ample time for the department to reply. With the benefit of the departmental reply, members could decide whether disallowance was the appropriate route.

Mr. Bernier: Over the years, the department has given its justification for the use of that technique. We are fully aware of their arguments. There is really nothing to learn.

Mr. Wappel: Can we put it a different way? Can we say that the committee is considering disallowance, that if their justification remains only as so far set out then we will disallow, then invite them to bring a further justification if they have any, or something to that effect?

Mr. Bernier: Could the committee make a report in which this sort of position is put forward?

The Joint Chairman (Senator Hervieux-Payette): We could put that in the report.

Mr. Bernier: We are at this time having difficulties with the budget here. This may not be the right time politically, dare I suggest, to start rattling cages all over the cabinet room if we are looking for solutions to staffing difficulties.

Mr. Wappel: Are we suggesting that our job is compromised because of money?

Mr. Bernier: I just leave that thought with you.

Mr. Wappel: I cannot believe you are saying that.

Mr. Lee: I resent the reference to rattling cages.

Mr. Wappel: If we even dare to acknowledge that we will hold off on decisions because some subcommittee has decided to only approve us for 50 per cent of our year, surely that will compromise us in the future. I know you are teasing us, Mr. Bernier. We cannot look at things in that way. If we feel that something is ultra vires, we have to advise whether a cage will be rattled.

Mr. Bernier: So we should prepare a report and advise both Houses that this problem is a continuing one and that, unless the government can offer some hope that the legality problem will be resolved fairly soon, the committee will be forced to consider the option of disallowance in the future? Would that be acceptable?

The Joint Chairman (Senator Hervieux-Payette): That is done.

Mr. Lee: Yes, that is good.

Mr. Wappel: Just note that we are forced to consider disallowance. Do not put "in the future."

SOR/99-202 -- ORDER CANCELLING GENERAL EXPORT PERMIT NO. EX. 11 -- LIBYA

(For text of documents, see appendix p. 5C:1)

Ms Jodoin-Rasmussen: Madam Chair, as the note indicates, this instrument is redundant since it cancels an order that ceased to have effect on January 1, 1995. Nothing further is required on this file

C.R.C. c. 358 -- ARMY BENEVOLENT FUND REGULATIONS

Ms Jodoin-Rasmussen: Madam Chair, the Department of Veterans Affairs has promised the committee that it will introduce a bill to repeal the Army Benevolent Fund Act because the fund no longer exists. Counsel will continue to monitor the file in the usual fashion.

SOR/89-29 -- COASTAL FISHERIES PROTECTION REGULATIONS, AMENDMENT

Ms Jodoin-Rasmussen: Madam Chair, we have received assurances from the Director of Legislative and Regulatory Affairs at Fisheries and Oceans that the promised amendment to section 12(e) will be made before the end of this year. They have also assured us that no monies have been paid out pursuant to this paragraph since 1993. We will continue to monitor this file.

SOR/95-589 -- ONTARIO FISHERY REGULATIONS, 1989, AMENDMENT

Ms Jodoin-Rasmussen: Regarding the Ontario Fisheries Regulations, the department has promised that the drafting amendments will be made in late spring of this fiscal year. We will keep our eyes open for them.

SOR/96-137 -- BRITISH COLUMBIA SPORT FISHING REGULATIONS, 1996

Ms Jodoin-Rasmussen: On this file, we verified that the amendments, most of which involved drafting errors, were not made as promised in the last fiscal year. We suggest a follow-up inquiry as to why not.

Mr. Wappel: Madam Chair, this file has very sketchy correspondence, but as best I can make out someone by the name of Vicki Metcalfe made certain undertakings in 1996. Michel Leclerc indicates that regulations are made on an annual basis. If, in fact, regulations are made on an annual basis, then why have the years 1996 through 2000 come and gone without these regulations being put into force?

Mr. Bernier: You would have to ask Mr. Leclerc.

Mr. Wappel: Can we do that then?

Mr. Bernier: He is no longer in that position, however.

Mr. Wappel: Can we ask the person who is in his position? Please ask why, if regulations are made on an annual basis, five years have gone by without the regulations being changed as promised?

The Joint Chairman (Senator Hervieux-Payette): We probably have the most regulated fish in the world.

SOR/97-204 -- EXPORT PERMITS REGULATIONS

(For text of documents, see appendix p. 5D:1)

Mr. Bernier: Amendments are promised on all issues raised with the department except with regard to sections 10 and 11. With regard to these sections, it was noted that they could create a difficulty in the case of multiple mail or counter shipments made under the permit. Having looked into this, the department advises that, in practice, all mail or courier shipments are single shipments so that no problem would arise. This is satisfactory.

The progress of the other outstanding amendments should be chased up at this time.

SOR/97-248 -- REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 1989

(For text of documents, see appendix p. 5E:1)

Mr. Bernier: There are three separate issues here. The first one deals with the drafting of section 23.01 of the regulations. The unnecessary notwithstanding clause will be deleted from that section. The second issue deals with the date of coming into force of the instrument registered as SOR/97-248 and some others. The gazetted version indicated the instrument was to come into force on April 28, 1997 but the certified true copy of the enacting Order in Council had a date of April 27, 1997.

When this discrepancy was questioned, the assistant Clerk of the Privy Council replied that the April 27 date had been put in or inserted on the assumption that the amendment would be registered on that day.

As noted in the further letter from Mr. Bernhardt, this certainly raises a question as to the reliance to be placed on copies of Orders in Council that are certified to be true copies.

I would add that the power to choose a date of coming into force for a regulation belongs to the regulation-making authority, in this case the Governor in Council. In this instance, the power is not exercised by the Governor in Council but by the unnamed official in Privy Council Office who inserted the date of April 28. The same type of problem occurred, as I mentioned, with a number of other regulations mentioned in the correspondence. New procedures have been put in place since then that should avoid a repetition of this scenario.

Finally, some errors in footnoting were drawn to the attention of the department. In four cases, however, what were thought to be omissions in footnoting were in fact intentional, as we were informed that it is not the practice to provide footnotes in the case of additions to regulations as opposed to their amendment.

The only thing to follow up on would be the progress of the amendment to section 23.01.

Mr. Wappel: Have you come across any evidence, Mr. Bernier, that the new procedure has been breached since this date?

Mr. Bernier: No. Perhaps we can deal with all instruments under Action Promised and Action Taken as a group.

SOR/90-214 -- QUEBEC FISHERY REGULATIONS, 1990

SOR/93-196 -- QUEBEC FISHERY REGULATIONS, 1990, AMENDMENT

SOR/95-496 -- QUEBEC FISHERY REGULATIONS, 1990, AMENDMENT

SOR/98-218 -- REGULATIONS AMENDING THE QUEBEC FISHERY REGULATIONS, 1990

SOR/99-264 -- REGULATIONS AMENDING THE QUEBEC FISHERY REGULATIONS, 1990

(For text of documents, see appendix p. 5F:1)

SOR/97-87 -- REGULATIONS AMENDING THE FISHING AND RECREATIONAL HARBOURS REGULATIONS

(For text of documents, see appendix p. 5G:1)

SOR/98-344 -- REGULATIONS AMENDING THE NEWFOUNDLAND FISHERY REGULATIONS

(For text of documents, see appendix p. 5H:1)

SOR/98-386 -- REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS

(For text of documents, see appendix p. 5I:1)

SOR/99-327 -- REGULATIONS AMENDING THE BOATING RESTRICTION REGULATIONS

(For text of documents, see appendix p. 5J:1)

SOR/93-451 -- EXPORT CONTROL LIST, AMENDMENT

SOR/92-389 -- EXPORT CONTROL LIST, AMENDMENT

(For text of documents, see appendix p. 5K:1)

SOR/98-545 -- REGULATIONS AMENDING THE BRITISH COLUMBIA SPORT FISHING REGULATIONS, 1996

(For text of documents, see appendix p. 5L:1)

SOR/99-98 -- REGULATIONS AMENDING THE YUKON TERRITORY FISHERY REGULATIONS

(For text of documents, see appendix p. 5M:1)

SOR/99-189 -- REGULATIONS AMENDING THE MANITOBA FISHERY REGULATIONS, 1987

(For text of documents, see appendix p. 5N:1)

SOR/99-231 -- REGULATIONS AMENDING THE AWARD REGULATIONS

(For text of documents, see appendix p. 5O:1)

Mr. Bernier: Members will note that, contrary to usual practice, a copy of the Quebec Fishery Regulation was not included in the material even though this is the first time it is coming to the committee. I have a copy here. I think members will understand why it was not reproduced.

Taking all the instruments together, we have 22 promised amendments. In terms of action taken, a total of 10 amendments have been made at the request of this committee.

The Joint Chairman (Senator Hervieux-Payette): If there is nothing else, our meeting is adjourned.

The committee adjourned.