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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 13 - Evidence, October 20, 2005

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OTTAWA, Thursday, October 20, 2005

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. to elect the Joint Chair (House of Commons) and Vice-Chairs; and for the scrutiny of regulations.

Senator John G. Bryden (Joint Chairman) in the chair.

[English]

The Joint Chairman (Senator Bryden): We have a quorum. We have an election, so I will turn it over to the clerk to conduct that.

Ms. Joann Garbig, Acting Joint Clerk of the Committee: Honourable members of the committee, pursuant to House Standing Order No. 106, the first item of business is the election of a joint chair representing the House of Commons. I stand ready to receive nominations.

Mr. Tweed: I nominate Mr. Rob Anders.

Ms. Garbig: Are there any other nominations? It is moved by Mr. Tweed that Mr. Anders be joint chair of this committee. Is it your pleasure to adopt the motion?

Hon. Members: Agreed.

Ms. Garbig: I declare Mr. Anders duly elected joint chair of the committee representing the House of Commons.

I would ask the joint chair to take his seat, please.

Mr. Rob Anders (Joint Chairman) in the chair.

The Joint Chairman (Senator Bryden): On behalf of the committee, I welcome Mr. Anders as joint chair. We will proceed to nominations for vice-chair representing the House of Commons. I stand ready to receive nominations.

Mr. Macklin: I nominate Mr. Lynn Myers.

The Joint Chairman (Mr. Anders): Are there any other nominations? Seeing none, Mr. Myers is elected the vice-chair of the committee.

We will now proceed to the election of the vice-chair representing a party other than the official opposition. I stand ready to receive nominations.

Mr. Macklin: I nominate Mr. Marc Lemay.

The Joint Chairman (Mr. Anders): Are there any other nominations? Seeing none, Mr. Lemay is elected the vice- chair of the committee.

[Translation]

Mr. Lemay: I was told that someone from the NDP was going to apply for the position. I suggest we wait until that person is here. I would be delighted to give up my seat, if that is what she wants, but will she be here?

[English]

The Joint Chairman (Senator Bryden): If I could respond to that, the person who was one of the vice-chairs was Judy Wasylycia-Leis. She is on the committee, but she is not here today.

[Translation]

Mr. Lemay: I withdraw my name and move that Ms. Wasylycia-Leis take my place, even though she is not here.

[English]

The Joint Chairman (Senator Bryden): To do this properly, since you have already been nominated, you have to resign from the position.

[Translation]

Mr. Lemay: I withdraw. I likely served the shortest ever term as Vice-Chair of the committee.

[English]

The Joint Chairman (Mr. Anders): We accept it with regret. I would add that it does not have to be a member of the NDP. However, given the fact that many of these things are argued out between the various parties and it affects other committees, we will proceed in that direction. As a result, Mr. Lemay has nominated Ms. Wasylycia-Leis to be the vice- chair of the committee. Are there any other nominations?

Seeing none, I declare Ms. Wasylycia-Leis vice-chair of the committee.

The Joint Chairman (Senator Bryden): I bring to the attention of honourable members one issue that occurred over the summer. The committee received a communication from a committee of the Scottish Parliament. I will read their request and suggest an approach for the committee's consideration.

The communication from the Coordinator of the Committee in the Scottish Parliament was addressed to Heather Lank, Principal Clerk of the Committees Directorate of the Senate:

The Scottish Parliament's Subordinate Legislation Committee is currently undertaking an inquiry into the regulatory framework in Scotland and is considering how the Scottish Parliament supervises and scrutinises subordinate legislation. At the conclusion of this inquiry the committee aims to introduce a committee bill, this session, that will provide for the procedures governing publication and scrutiny. The Committee is very keen to hear how other legislatures conduct their business in relation to examining regulations and I am contacting you in the hope that you can help me to establish contact with a Committee at the Parliament of Canada. In particular, it would be very helpful to establish contact with the Standing Joint Committee for the Scrutiny of Regulations, in the hope that members would be able to video-conference with the Committee on matters pertinent to its inquiry. The timescale for the inquiry is extremely tight and it would be especially helpful to establish contact in November this year.

In usual circumstances of such an inquiry, the committee would provide the documented information on how this committee functions under the applicable act and rules, including, perhaps, additional notes. That information would be sent in reply by the joint clerks. I suggest that this committee invite that committee to request additional information and answers to questions via a teleconference, which I assume would be paid for by them. It does not make sense to set up a teleconference call until this committee is aware of the issues that they wish to address.

I suggest that the joint clerks forward the usual information provided on how this committee operates and invite them to query further. The committee will consider a teleconference or video conference at that time.

Mr. Lee: I agree with the joint chair that the committee cooperate with the honourable members of the Scottish Parliament.

The Joint Chairman (Senator Bryden): Are members agreed that this is an acceptable way to proceed?

Hon. Members: Agreed.

The Joint Chairman (Senator Bryden): I will put that in the hands of the joint clerk to ensure that happens. A check by the joint clerk with counsel will ensure that the most recent documentation is used.

I turn the meeting over to Mr. Anders to take us through the first item on today's agenda.

The Joint Chairman (Mr. Anders): On that matter, I will head to Edinburgh, Scotland, next month.

We will proceed to the first items on the agenda in respect of Fish Inspection Regulations.

[Translation]

Mr. Lemay: Mr. Chairman, I want to mention one thing. We received some documents prior to today's meeting. Ms. Guay, who is seated on my right and who has been a committee member for quite some time, did not receive this material.

Ms. Guay: That is true.

Mr. Lemay: Since we need to read through all of these documents, it is important to receive them far enough in advance of the meeting. If we are scheduled to meet on Thursday, why not get the documents to us on Monday so that we have time to familiarize ourselves with the material.

I do not know if any other members spent the evening yesterday poring over these documents. Personally, I have a hard time coming up with recommendations about these regulations. We do not soak up information like sponges, much as people would like to believe otherwise. Far from it. Surely there must be some way of getting these documents to us three days before the meeting.

[English]

The Joint Chairman (Mr. Anders): Counsel has mentioned that these documents were prepared Friday and circulated, to the best of his knowledge, on Monday. We have to confirm that they were sent out on Monday. Sometimes my staff does not receive the documents right away and that can present an issue within our offices.

[Translation]

Ms. Guay: I am a long-serving member of this committee and I did not even get the documents. I checked with my office yesterday and this morning and my staff did not receive anything. We need to find a solution because we cannot do our job without the necessary tools.

Mr. François Bernier, Senior Counsel: As you know, this is not the norm. Generally speaking, committee members do receive the documentation. However, in this case, there was clearly a breakdown somewhere in the system.

Ms. Guay: The problem with getting the documents the day before the meeting is that we do not have time to familiarize ourselves with their contents.

Mr. Bernier: I could not agree more with you.

Ms. Guay: More vigilance is needed in future.

Mr. Bernier: Counsel is responsible for setting the agenda which goes to the printer and then on to the Clerk's office. From the moment the agenda is sent off to printing, counsel no longer has any control over the circulation of documents.

Ms. Guay: However, it is the clerk's job to shed light on what happened.

Mr. Tõnu Onu, Joint Clerk of the Committee: Our office sent out the documents on Monday. We will have to check into this situation.

Ms. Guay: Perhaps they were sent to the wrong office, because I did not receive them.

Mr. Onu: I will check into it and get back to you, because that should never happen. Mr. Lemay, you say that you only received the documents last night?

Mr. Lemay: I received the documents early yesterday, but since I was in the House and in caucus meetings all day, I only discovered this when I returned to my office at 8 p.m. I brought the documents home with me. I read a good chunk of the material and resumed my reading at 7 a.m. this morning, in order to be prepared for the meeting.

That being said, since we know meetings are scheduled on Thursday, could we not ensure that members have the necessary documents in hand by Monday? That gives us three days, which is not a long time, but at least everyone can familiarize themselves with the material in three days.

[English]

The Joint Chairman (Mr. Anders): I have a sneaking suspicion that counsel and the joint clerk will look into this to ensure that you have three days' notice.

The Joint Chairman (Senator Bryden): There is an issue, though, as to whether we can proceed with the meeting today, because one member did not receive the documentation at all, and one member obviously stayed up all night getting ready for the meeting. Therefore, it would be only with the unanimous consent of the committee that we would proceed. I do not know if a file is available for you now. You could borrow mine, I suppose.

[Translation]

Ms. Guay: Mr. Chairman, we do not want the meeting to be cancelled. The issue merely needed to be clarified. I was under the impression that the only business on our agenda was the election of the Joint Chairs and Vice-Chairs, since I did not receive any documents. We can proceed with the meeting and if we have any questions, we will ask them. However, in future, the proper procedure must be followed.

[English]

The Joint Chairman (Senator Bryden): I appreciate that, so we will proceed. However, we can treat it as simply an organizational meeting, if you wish.

Let us proceed.

SOR/98-2 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/99-169 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/2002-354 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY, 2002-1 (MISCELLANEOUS PROGRAM)

(For the text of documents, see Appendix A, p. 13A:1)

Mr. Bernier: I will deal first with the issues the committee decided to pursue directly with the minister.

In general, the concern of the committee is that the regulations put in place a regulatory regime that is not supported by the current legislation. This concern is illustrated by two features of the current regulations that are both mentioned in the letter to the minister.

The first is the attempt to institute a licensing regime for fish processing establishments when the act provides only for the registration of such establishments. The important distinction between the two concepts is discussed, starting at the bottom of page 1 to page 3 of the Joint Chairmen's letter.

The second concern relates to the numerous provisions that impose record-keeping requirements and information submission requirements without clear legislative authority. This concern is discussed starting at page 3 to page 6 of the same letter.

In their letter, the chairmen noted that Bill C-27 would remedy the current lack of authority for these elements of the regulatory regime. The committee wanted an assurance from the minister that a new bill would be reintroduced should Bill C-27 not be adopted in the current session; and that the legislation would validate the current provisions of the regulations or, in the alternative, that these provisions would be re-enacted following passage of the legislation.

In his reply of June 21, the minister states that should Bill C-27 fail to pass, he will

...examine other approaches to dealing with the concerns raised about the Fish Inspection Regulations' legislative base...

There is no answer on the issue of the bill, the legislation validating the current regulations, or those regulations being re-enacted following passage of the bill.

As of last June, the bill had been sent back to the House following committee examination, and was reported back to the House with various amendments. It is at that stage now.

As regards the various issues that were pursued with the department by counsel, the answers are largely unsatisfactory and many of these points need to be pursued. There is also one item on which the agency is still engaged in consultations with interested parties, and we need to have those consultations concluded before an answer is provided.

On the other hand, we note that there is a promise of action in relation to item 12 of SOR/98-2 regarding the development of amendments to put in place an appeal mechanism with respect to suspension and cancellation of certain licences.

If the committee thinks it desirable to have a clearer commitment from the minister with respect to the validation of the current provisions of the regulations that were challenged by the committee or, in the alternative, their re- enactment following adoption of Bill C-27, the chairmen would presumably have to write again to the minister to request that commitment. Counsel would write again to the agency to continue the discussion on the responses made in the June 28 letter.

The Joint Chairman (Senator Bryden): Is it your recommendation that we do that?

Hon. Members: Agreed.

SOR/2000-199 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA POST CORPORATION ACT (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix B, p. 13B:1)

The Joint Chairman (Mr. Anders): The next item of business falls under the heading ``Reply Unsatisfactory.''

Mr. Bernier: The Non-mailable Matter Regulations define certain non-mailable matter by reference to an administrative document that is incorporated by reference in the regulations.

Counsel wanted to know whether the regulatory reference to the ``current'' version of the guide was a fixed reference to the version in existence, current at the time of the making of the regulations, or intended as an open incorporation by reference to whichever version would be current in time.

If the latter is the case, Mr. Bernhardt pointed out that the enabling authority, which is authority to prescribe what is non-mailable matter, would preclude an open incorporation as it would result in non-mailable matter being defined by means other than a regulation.

The corporation debates this last point relying on the remarks of the appeal judge in the Eurig case. This issue will be dealt with in a letter to be sent to the responsible minister in relation to another file, which was SOR/2000-221. While the statements made by Joanna Kouris on the interpretation of the word ``prescribe'' are not satisfactory, they also, in this case, have no direct bearing because the regulations do not effect an open incorporation with a fixed incorporation. That statement is made in the second paragraph of the August 31 letter from Ms. Kouris.

Inasmuch as the unsatisfactory argument is repeated in the other file I mentioned, it would be preferable to deal with it there. Then this file could be closed, if that is agreeable.

The Joint Chairman (Mr. Anders): Is that agreed?

Hon. Members: Agreed.

[Translation]

The Joint Chairman (Mr. Anders): We now go to SOR/86-236, SOR/97-10 and SOR/99-437, under the heading ``Progress (?).'' We will start with SOR/86-236.

SOR/86-236 — STASTICS CANADA FEES ORDER NO. 1

Mr. Rousseau: In a letter dated September 15, 2005, Statistics Canada advised us that it was not progressing as quickly as it had expected to because of discussions with counsel and Treasury Board. Statistics Canada hoped to wrap up these talks shortly and assured us that the promised corrective action would be taken as soon as possible. Council will keep abreast of this file and apprise the committee of any developments.

[English]

The Joint Chairman (Mr. Anders): Agreed?

Hon. Members: Agreed.

[Translation]

SOR/97-10 — REGISTRATION OF STORAGE TANK SYSTEMS FOR PETROLEAUM PRODUCTS AND ALLIED PETROLEUM PRODUCTS ON FEDERAL LANS REGULATIONS

Mr. Rousseau: In a letter dated May 13, 2005, the Department advised us that it intended to amend the wording of the regulations as promised and that these would be published in the form of draft regulations during the summer of 2005, with the final amendments slated to be adopted early in 2006. After checking into this matter, we found that the regulations were not published as expected. We are left to wonder if the department still intends to adopt the promised amendments early in 2006. Therefore, the department should be contacted again in writing for an update on the situation.

[English]

Senator Moore: Is it the department or the minister?

Mr. Rousseau: The department.

The Joint Chairman (Senator Bryden): Agreed?

Hon. Members: Agreed.

[Translation]

SOR/99-437 — REGULATIONS AMENDING THE EXCLUSION LIST REGULATIONS

Mr. Rousseau: This file concerns amendments to the wording of the regulations. The Agency advises us that the promised amendments are ready and should be approved by the minister and published in the form of draft regulations. However, no specific publication date was given. The appropriate course of action would be to write to the Agency to obtain further details about the file.

[English]

Hon. Members: Agreed.

Mr. Lee: This file and the previous file were fuzzy on dates and timing. I had noticed it in the previous item but did not mention it on this item. I suggest that we request a date and projected timeframes because the last file made reference to ``as soon as possible,'' which generally means a time in the next quarter century. It would be better if the wording were more precise on the timelines.

[Translation]

Mr. Rousseau: We intend to ask for a firm date. I would note, however, that this file concerns the drafting of regulations. On occasion, the committee has allowed the department greater latitude where this matter is concerned.

Mr. Lemay: Could we not ask the department to provide the committee with these regulations, or draft regulations, prior to the Christmas recess, for example. That would still leave us one and a half, or two months.

Mr. Rousseau: If I understood you correctly, you are asking to see the draft regulations. Is that correct?

Mr. Lemay: I am wondering if it is possible to see the draft regulations before we adjourn for the holidays.

Mr. Rousseau: As Mr. Lee pointed out, we shall first seek a firm date. As a rule, the department should give us a date by which it plans to present and adopt the draft regulations.

Mr. Lemay: Thank you.

[English]

The Joint Chairman (Senator Bryden): I will respond to those comments. The committee does not usually involve itself in the regulations while they are being drafted because we could get snowed under. The job of this committee is to review regulations after the drafting is complete to ensure they are right. If they are not right, then the committee makes its recommendations for changes. However, the point to place time limits is valid. For members who are serving on this committee for the first time, we have to take into account the advice of counsel. As all members are aware it can take a long time to wade through all the required procedures to achieve a final result. Correspondence has to be sent to the Department of Justice and relevant departments and agencies. We should have time allocations, keeping in mind the way the system works.

The Joint Chairman (Mr. Anders): Are members agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Anders): Mr. Lee, I am enthused about the idea of setting firm timelines on responses.

Our next agenda item is SOR/2001-111 under the heading ``Progress (?).''

SOR/2001-111 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990

Mr. Bernier: An amendment to these regulations made in 2001 required calves transported for slaughter to be transported in accordance with the provision of the recommended code of practice for the care and handling of farm animals, veal calves. At the time, the committee took the position that this provision sought to regulate the humane transportation of animals and that the Meat Inspection Act does not give that authority. The Meat Inspection Act is concerned with the wholesomeness of the meat products.

In May 2004, the Food Inspection Agency conceded the point and announced that section 61 and 61(1) of the Meat Inspection Regulations would be revoked and section 148 of the Health of Animals Regulations would be amended at the same time to provide for the humane transportation of calves.

As of last June, however, the FIA is no longer simply revoking the ultra vires section of the Meat Inspection Regulations and amending section 148 of the Health of Animal Regulations. FIA now indicates it must first develop a draft policy on the humane transport of animals. It is only after that policy process is concluded that the amendments announced to the committee will be made. In the meantime, the question remains: Is this illegal provision in force?

If I may mention this on the record, I think committee members are well aware of the delays that can occur whenever the words ``policy'' and ``policy development'' are mentioned. The question is whether the committee is prepared to accept the course of action now outlined by the department or whether it wishes the promised amendments to proceed immediately, without regard to the development of a new, overall global policy.

Mr. Anders: I would like to interject and recognize Mr. Wappel. I smell something that affects the viability of the family farm/ranch operation.

Mr. Wappel: This point follows along with the point that Mr. Lee just made, only in a different way. I was surprised that it was under the heading ``Progress (?).'' I thought it would be under the heading ``Reply Unsatisfactory'' because the committee can wait, literally, until the calves come home before we will see any changes to policy.

I am not sure what we should do but, certainly, if we are not involved in the drafting of regulations then, certainly, we are not involved in policy. We have a specific piece of legislation wherein we asked for a specific amendment, which was promised, only to be now told that it is policy. I suggest that the committee ask the department to proceed with the amendment.

Mr. Macklin: Request that it stay with the original plan.

Mr. Anders: Is there agreement? Mr. Tweed, your area of Manitoba likely faces some of these issues. Do you have comments?

Mr. Tweed: No.

Mr. Lee: I will speak to the joint chair's allusions so that it is on the record. If the department wants to rewrite the book partly on the issue of humane treatment of animals headed for the slaughterhouse, it is certainly entitled to do that. That process may run up against many other political obstacles and may trigger an extended debate. Other legislation is moving back and forth between the House and the Senate involving the issue of cruelty to animals, which is a highly contentious issue. Everyone accepts the need to take care of our animal friends, and most people accept the need of the farm to carry on its work in a reasonable way. If the department becomes embroiled in a debate involving those two paradigms, this might be a never-ending issue, and one small department would not be able to ``drive the bus'' through it. If the department were able to write the ultra vires regulation in the first place, then surely it would be able to write a new one. Perhaps it should have the consultation provided for in regulatory policy in respect of prepublication of the proposals. In that way, the department could simply get on with it rather than invite all of Canada to become involved in a debate about the broader issues and paradigms, which the half dozen departmental officials might not be able to handle.

Perhaps my comments will prove useful to counsel in responding to the department. Certainly, the committee prefers to avoid the big picture, eliminate the illegality and have a new regulation in place without triggering a national debate.

Hon. Members: Agreed.

The Joint Chairman (Mr. Anders): One suggestion is for a letter to the minister. Do members want to write a letter to the department first and then consider writing a letter to the minister?

The Joint Chairman (Senator Bryden): Let us write just that letter, in fact, being worded much the way Mr. Lee has suggested. Let us get this small thing done before we elevate it to another level, and give them time to reply. Is that acceptable?

Hon. Members: Agreed.

The Joint Chairman (Mr. Anders): If Mr. Lemay wants, we can say they have to reply by Christmas — you wanted Christmas before?

[Translation]

Mr. Lemay: Yes, but I also sit on the Justice, Human Rights, Public Safety and Emergency Preparedness Committee of the House of Commons and we are slated to examine a bill to amend the Criminal Code with respect to cruelty toward animals. I do not quite know what Agriculture Canada will do with this. If I could make a suggestion, I would propose that they wait until the Criminal Code is amended before going any further. We are working on two or three levels at the same time. I reread the document yesterday and concluded that the Criminal Code provisions would come before the Justice Committee for review. Just where are we going with this?

[English]

The Joint Chairman (Mr. Anders): I think I opened a can of worms. I sense we are talking about a letter to the department and giving the department time to respond before we write a letter to the minister.

The Joint Chairman (Senator Bryden): I want to make a comment. It is an interesting piece of information; I hope it is correct that the particular piece of legislation on the amendment to the Criminal Code relating to cruelty to animals will be investigated by the Justice Committee.

However, what Mr. Lee said is correct; if the department could have passed the limited regulation that is wrong, then the department can fix the limited regulation now and get it right, if they want to. If they refuse to do that, then we go to the minister and say we will create a fuss. Agreed?

Hon. Members: Agreed.

[Translation]

SOR/2001-32 — CONTROLLED GOODS REGULATIONS

(For text of documents, see Appendix C, p. 13C:1)

Mr. Rousseau: Regarding SOR/2001-32, in letters dated July 8 and 12, 2005 sent by the department, the latter responds to two points raised by committee counsel. The committee had decided at its meeting of March 10, 2005 to await a full answer before arriving at a definitive position on these two points. In the case of section 10(j) of the regulations, the department announced that it was repealing the provision in question. This action will, of course, resolve the problem raised by the committee.

Regarding the second point, namely section 15.6 of the regulations, the department's response is unsatisfactory. The Controlled Goods Regulations regulate access to certain goods controlled by the Department of National Defense. An individual registered with the department may have access to these goods. Section 15 of the regulations provides for a security screening of persons applying to register. By law, these persons are required to provide any requested information to the department. Pursuant to section 15.6 of the regulations, the minister may request information from any other person, including another minister.

The committee initiated its study of this provision at its meeting of March 10, 2005. Two series of questions were raised by committee counsel. Firstly, which provisions in the act authorize the adoption of section 15.6 of the Regulations? In the response examined by the committee on March 10, the minister simply says that this provision is needed in order to obtain information from such agencies as the RCMP, CSIS and Foreign Affairs and International Trade. This response is deemed unsatisfactory. The act already spells out which persons are compelled to provide information to the minister. If Parliament had wanted to delegate its authority whereby other persons could be compelled to turn over information, this intention would surely have been clearly expressed.

Despite the doubts over the validity of section 15.6 of the regulations, the committee felt it was appropriate to wait until the department responded to the second series of questions before completing its review.

The department responded in a letter dated July 12, 2005 to the question concerning the effectiveness of section 15.6. What happens if the RCMP or a department does not provide the requested information? What means are available to the minister to compel a party to provide the information should it refuse to cooperate voluntarily?

The response given is far from satisfactory. The department responded that these regulations ``may be effectively applied through the relevant provisions of the Defense Production Act''. However the department does not identify these relevant provisions and there is no indication that there actually are any.

If the minister has no way to compel persons covered under section 15.6 of the regulations to supply the information requested, we fail to see how the department can argue that this provision is necessary in order to carry out the security checks. The department also pointed out that on a practical level, section 15.6 of the regulations was useful for gathering information from the persons mentioned in it. In its estimation, this provision is an effective means that can legitimately be used to justify the disclosure of information that would otherwise be restricted under legislation and regulations.

Although a portion of the department's response is unclear, it implies that section 15.6 of the regulations could be used to invoke override provisions in other acts of Parliament. In the opinion of committee counsel, the department's response is unacceptable. In any event, Mr. Chairman, the point I want to make is that there is no enabling provisions in the act to adopt section 15.6 of the regulations. If the committee has no objections, counsel will write to the department again and ask it to reconsider its position. It would also be a good idea to inquire if the review process mentioned in the letter of July 12, 2005 has been completed and if the department now has a better sense of when the promised amendments will be made.

[English]

The Joint Chairman (Senator Bryden): Agreed?

Hon. Members: Agreed.

[Translation]

SOR/2004-198 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of documents, see Appendix D, p. 13D:1)

Mr. Rousseau: As noted in the comment prepared by the committee, the adoption of SOR/2004-198 in effect resolved five problems brought to the Commission's attention in relation to sections 37.4 to 37.7 of the regulations.

Four matters were addressed in the correspondence concerning SOR/2004-198. In point 1, the Commission promised to make an amendment. In point 2, the Commission supplied the explanation sought by the committee and this can be deemed satisfactory. In points 3 and 4, the Commission seems committed to making amendments. The committee should follow up to see if any action has been taken on this front. Counsel therefore recommends that the Commission be contacted again to obtain confirmation regarding points 3 and 4.

[English]

The Joint Chairman (Senator Bryden): Agreed?

Hon. Members: Agreed.

NATIONAL FARM PRODUCTS COUNCIL GUIDELINES FOR COMPLAINTS

The Joint Chairman (Mr. Anders): The next item on the agenda, under ``Action Promised (?),'' is the National Farm Products Council Guidelines for Complaints.

Mr. Bernier: The National Farm Products Council, NFPC, developed and implemented Guidelines for the Disposition of Complaints to the National Farm Products Council Made Pursuant to Section 7(1)(f) of the Farm Products Agencies Act. That is the title of the guidelines.

In early 2005, counsel queried the relationship of those guidelines to the NFPMC General Rules of Procedure, which also set out rules governing complaints made pursuant to section 7(1)(f) of the act. In time, it became clear that the issue here had to do with the status of these guidelines under the Statutory Instruments Act, and whether or not they are required to be examined, registered and published in accordance with the Statutory Instruments Act.

As recently as June 17, 2005, the council asserted that the guidelines were ``authorized under both section 10 of the act and subsection 3(2) of the general rules of procedure.''

In his letter of August 10, Mr. Bernhardt carefully explained that if the guidelines were indeed made under the authority of section 10 of the act, the guidelines were both a statutory instrument and a regulation for the purposes of the Statutory Instruments Act. Therefore, the guidelines should have been registered and published in accordance with the SIA.

In September, the NFPC replied that the guidelines were an ``informational document to assist parties in understanding the best current practices in use for raising issues...for the Council to consider in relation to the operation of agencies.''

This new characterization of the guidelines as a mere informational document presumably means that the NFPC now repudiates the position it took in the preceding June to the effect that the guidelines are made under the authority of section 10 of the act.

The problem is that these guidelines do not at all read like an informational document but rather like rules of practice. In her letter, Cynthia Currie recognized that, and stated:

...by employing language in some of the provisions relating to hearings which emulates mandatory prescriptive requirements ordinarily found in regulations parts of the Guidelines, as you have suggested, may be construed as constituting rules of procedure to be dealt with in accordance with the Statutory Instruments Act.

Not to mention that the council insisted that these guidelines were made pursuant to section 10 of the act, which provides for the making of rules. Be that as it may, the council has now undertaken to review the drafting of the guidelines to ``maintain the integrity of the Guidelines as strictly an informational document.''

We will continue to monitor and report to the committee on how successful the council has been in effecting this metamorphosis of the guidelines from statutory instrument made under the authority of section 10 of the act to informational document.

The Joint Chairman (Senator Bryden): Are there questions?

Mr. Tweed: For clarification, are you saying that they presented these as regulations and then changed their position and suggested that they were merely guidelines?

Mr. Bernier: The title of guidelines is irrelevant. The issue is that under the Statutory Instruments Act, by whatever name is given to an instrument, you have to apply those definitions — which Mr. Bernhardt did — and decide whether they are regulations for purposes of the Statutory Instruments Act. These were regulations as soon as the agency said in June, and agreed with counsel, that these were made pursuant to section 10 of the act. Section 10 of the act provides for the making of rules of practice. Therefore, even if they called them ``guidelines,'' they were saying that these were statutory instruments because here, ``is made pursuant to express authority granted by statute.''

Having been made to realize the consequences of the position that those guidelines must be examined, registered and published under the Statutory Instruments Act, the council now prefers to view them as merely an informational document.

They are logically abandoning the position that these guidelines are made pursuant to section 10 of the act and claim that this is simply an information document prepared in the general way.

Mr. Lee: How did the committee come to review the guidelines in the first place if they were not prepared as regulations or statutory instruments?

Mr. Bernier: In this case, I can say that a concerned citizen communicated with counsel.

Mr. Lee: That explains it. The good news, as I see it, is that they are called ``guidelines'' and not ``regulations.'' It is possible that public servants fell into the trap of describing them in an erroneous way. If there is no evidence that the guidelines have been imposed on citizens as regulations and enforced as such, then one could argue that they are simply guidelines, the breach of which entails no consequences. If there is a consequence for such a breach by a citizen, we may well have an issue. In the absence of concrete evidence that these guidelines have traction and are viewed as regulations or statutory instruments, I prefer to accept them as guidelines for the guidance of the users. Perhaps counsel has more information about the factual backdrop.

Mr. Tweed: Obviously, if you have had a complaint from a concerned citizen, then someone in the department has tried to impose these guidelines. That frustrates me because they are presented and applied in one form but changed to another form after the fact. When you want to anger people, that is a good way to do it — interpret it as one thing and change it to another when someone challenges it. I cannot understand why it would be brought before the committee if it were not intended to be a regulatory issue.

Mr. Bernier: If I may add, a metamorphosis is taking place. It had all the hallmarks of a statutory instrument that had not been registered as required by law. As the chair of the council recognizes, some provisions in the guidelines related to hearings emulate mandatory, prescriptive requirements ordinarily found in regulations.'' In other words, there was a series of ``you shall do this and you shall not do this.'' When we read a document that, it is claimed, has been made pursuant to section 10 of the act, which is a rule-making grant of authority by Parliament, then the conclusion, from our point of view, is inescapable — it is a statutory instrument and a regulation. Therefore, it must be dealt with as such under the Statutory Instruments Act.

We must now read the last letter from the council that states this was one terrible misunderstanding. It is implied that they are going back on their statement that this was made pursuant to section 10 of the act because that would be inconsistent with saying that this is not a statutory instrument; so that position had to be abandoned. They are now saying that this prescriptive mandatory language should not have appeared — another mistake — and they will have a committee review this and tone down the language so that not only is it an informational document but also sounds like a simple informational document, as opposed to an attempt to impose rules of practice without registering them under the Statutory Instruments Act.

The Joint Chairman (Mr. Anders): Sometimes we are able to take something a bureaucrat has metamorphosed into a butterfly and turn it back into the caterpillar that it originally was.

Mr. Kamp: Notwithstanding their prior admission that it was a statutory instrument, I assume counsel applied various criteria to determine that it was just that. If they change the language and we apply the same criteria, will we come up with a different answer? Notwithstanding our first decision based on their advice, is it possible that they can change it back to guidelines so that we no longer consider it a statutory instrument?

Mr. Bernier: Yes, that is why I suggested that we monitor and wait. Currently, we have a statutory instrument and a regulation. Council wants to say that it was a mistake in the drafting and that it was never intended to be a statutory instrument made under section 10 of the act. That is fine but we will have to wait to see the new version, which might look more like an informational document to people who wish to pursue an appeal or recourse under section 7(1)(f).

The Joint Chairman (Senator Bryden): It is important that we see the new document, the new guidelines, because one of the real problems with delegated authorities is that bureaucrats use them to harass people, or to get their way even though there is no force of law behind them.

I think we need to look at these guidelines to make sure that tools are not left in there that — even though there is no legal basis behind it — people could be intimidated by their use. I take it they will be required to show us what they are doing.

Senator Moore: How are these guidelines circulated to people who would be interested in them? The improperly worded guidelines, I expect, are in circulation somewhere. What about their removal and replacement by the new ones?

It is one thing for them to say we will redraft the guidelines, but how will the council remove the improper ones from the marketplace and what is the timing of all that?

Mr. Bernier: I believe the current guidelines are on the website of the National Farm Products Council. That is how we accessed them. Presumably once they have concluded this redrafting exercise, they would take that copy down and put the new copy up.

Senator Moore: Are there hard copies in circulation to farmers? How does this work?

Mr. Bernier: I assume that if an interested party requests a copy, the party must be able to obtain a hard copy.

Senator Moore: What I meant was, are these automatically distributed to all farmers? If so, we have to ensure that they get the new one.

The Joint Chairman (Mr. Anders): My guess is that it is one of these things that you have to request; and if you are lucky, you get one. Maybe counsel can snoop around and look into this.

Senator Moore: It is just a concern.

The Joint Chairman (Senator Bryden): Even though it is really not what we do, it might be useful to have counsel indicate that the committee is interested in the process that would be used to promulgate the information on the guidelines now, and retrieve whatever incorrect material is there. We cannot enforce but we can at least ask — use their own tactics against them.

The Joint Chairman (Mr. Anders): Counsel has a clear idea of where we are moving with this. Agreed?

Hon. Members: Agreed.

[Translation]

SOR/98-443 — ENVIRONMENTAL ASSESSMENT REVIEW PANEL SERVICE CHARGES ORDER

(For text of documents, see Appendix E, p. 13E:1)

Mr. Rousseau: Mr. Chairman, the focus of this file is the validity of the regulatory provisions respecting the environmental assessment panel service charges. When the file was reviewed on June 1, 2000, the committee felt that these service charges had not been properly prescribed. The minister derives his regulatory authority from an order made under section 19(1)(b) of the Financial Administration Act which provides that the Minister may prescribe by order fees to be paid for services covered by the regulations.

The committee's position, which is set out in counsel's letter dated December 22, 2004, is that by virtue of this authority, the Minister must prescribe the fees payable in the order. The Minister may also make an order incorporating by reference the fees payable. However, when the incorporation by reference formula is used, the order must not refer back to the document with the amendments that will be made following the adoption of the order.

In the order approved by the minister, clearly this is what has happened. Consequently, agencies sanctioned by the minister will be the ones to prescribe the charges, further to the adoption of the minister's order. Since the minister has no authority to do that, the committee is of the opinion that the minister has illegally sub-delegated her power to prescribe charges. In its response of July 15, 2005, the Agency does not formally acknowledge the validity of the committee's argument. However, it does advise the committee that it plans to look into the possibility of Parliament stepping in to delegate by legislation the necessary regulatory power. The Agency further points out that the order needs to be brought up to date. Therefore, the order will be thoroughly reviewed, to be brought up to date and to address the committee's concerns.

The Agency seems open to exploring all possible ways of correcting the problems identified by the committee. This undertaking could be deemed a satisfactory response for the time being. If the committee has no objections, counsel will write back to the Agency to ask if matters are progressing as expected.

[English]

The Joint Chairman (Senator Bryden): Agreed?

Hon. Members: Agreed.

SOR/99-294 — ONSHORE PIPELINE REGULATIONS, 1989

(For text of document, see Appendix F, p. 13F:1)

SOR/2001-179 — REGULATIONS AMENDING THE LIFE SAVING EQUIPMENT REGULATIONS

(For text of document, see Appendix G, p. 13G:1)

SOR/2003-378 — REGULATIONS AMENDING THE SPECIAL SERVICES AND FEES REGULATIONS

(For text of document, see Appendix H, p. 13H:1)

SOR/2003-379 — REGULATIONS AMENDING THE MATERIALS FOR THE USE OF THE BLIND REGULATIONS

(For text of document, see Appendix I, p. 13I:1)

SOR/2004-137 — ASH-FREE ZONE REGULATIONS

(For text of document, see Appendix J, p. 13J:1)

SOR/2005-225 —REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of document, see Appendix K, p. 13K:1)

SOR/2003-155 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

SOR/2005-165 — REGULATIONS AMENDING THE REFUND OF DUTIES REGULATIONS

(For text of document, see Appendix L, p. 13L:1)

Mr. Bernier: If I may, Mr. Chairman, I will deal as usual with the instruments under ``Action Promised'' and ``Action Taken'' as a block.

Under ``Action Promised,'' some 27 amendments to six instruments are promised to the committee.

Under the heading of ``Action Taken,'' we note one correction made to the consolidated index of statutory instruments, as well as one amendment to the English version of SOR/2005-165.

Some 63 instruments reviewed by counsel are submitted without comment.

The Joint Chairman (Senator Bryden): If there are no questions about the ones where we are in a satisfactory position...

Mr. Bernier: I should say, Mr. Chairman, if I may, for new members of the committee, that instruments without comment, if ever a member sees a particular title that tickles their fancy, I always bring copies of the no comment instruments here so I can answer questions.

The Joint Chairman (Senator Bryden): Before we adjourn, I should tell new members of the committee that there is information that is helpful in quickly fitting into what the jurisdiction of the committee is: what we are able to do and what we are not able to do. Counsel will be circulating that. It includes the committee's criteria, the Statutory Instruments Act, the Statutory Instruments Regulations and the Interpretation Act. The one we really need is the committee criteria; that is what we function by, but the basis of the committee criteria is the Statutory Instruments Act.

You will get them to everyone?

Mr. Bernier: Yes.

The Joint Chairman (Senator Bryden): This is a terrible thing to say to people who are obviously all my seniors, but the committee criteria is worth reading because it saves us a lot of time, as long as we can be in the general area of what is possible for us to do. We cannot redo policy; that is not our job. Our biggest job is to ensure that policy that occurs in the regulations is properly enacted and has proper authority behind it, before the citizen is stuck with it.

Counsel just reminded me that counsel and the clerks will assure that there is a better job done of distributing materials so that we are better prepared. Is there anything else?

The Joint Chairman (Mr. Anders): We will adjourn until 8:30 a.m. on November 3. For new members, if there is no real problem that has changed this, we meet every second week at 8:30 on Thursday morning. Because it is a joint committee, both Houses need to be in session for us to meet. Sometimes we are not and you are; sometimes we are and you are not, so that can change. Sometimes things interfere with that, but that is the usual approach. We have done well for finishing on time.

The committee adjourned.

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