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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 14 - Evidence of May 17, 2007

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OTTAWA, Thursday, May 17, 2007

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

Senator J. Trevor Eyton and Mr. Paul Szabo (Joint Chairmen) in the chair.

[English]

The Joint Chairman (Mr. Szabo): Good morning and welcome to this meeting of the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations.

For the record, I report to the committee that the request for funding for a travel study with regard to the committee's practices and procedures and a comparative study with regard to another Commonwealth country, Australia, has not been looked at favourably at this time, but we will reconsider the matter at an appropriate time.

The Joint Chairman (Senator Eyton): I would add that that the Joint Chairman, Mr. Szabo, was speaking for the House of Commons. I did not proceed with the application to the Standing Committee on Internal Economy, Budgets and Administration of the Senate. The discussion on the matter might have been lengthier in the Senate, although I am not sure whether it would have been successful. The application was not brought to the Internal Economy, Budgets and Administration Committee, but that could be done at a later date.

The Joint Chairman (Mr. Szabo): Thank you.

SOR/2003-30 — CONSULAR FEES (SPECIALIZED SERVICES) REGULATIONS

(For text of documents, see Appendix A, p. 14A:1)

Peter Bernhardt, General Counsel to the Committee: Mr. Chairman, first, it was noted that the regulations did not appear in the Consolidated Index of Statutory Instruments. This error has been corrected.

Several provisions that established fees in the amount of expenses incurred, in one instance as determined in accordance with the Treasury Board Travel Directive, as well as in the amount of the actual cost of a toll telephone call were also questioned. The enabling provision in the Financial Administration Act authorizes the Governor-in-Council to prescribe fees for services. It was suggested that this requires the setting of an actual amount rather than simply saying ``expenses incurred.'' As well, it was suggested that a fee of, and I quote, ``no charge'' created an unnecessary fiction. Finally an explanation was sought as to why Parliament had been asked to pass legislation making these fees retroactive to April 1, 1998.

A partial reply was received in August 2004 but counsel was unable to extract a complete response. This led to the joint chairmen writing to the Minister of Foreign Affairs seeking his cooperation. A reply was received. The department advises that the provisions in question are to be repealed. Apparently, these fees were rarely collected and, in the case of the provision incorporating the Treasury Board Travel Directive, instructions have been circulated that this fee is not to be collected pending its revocation.

As concerns the retroactive question, apparently the increased fees were implemented as of April 1, 1998, even though no amendment to the regulations was adopted. The retroactive legislation then corrects the situation. This being the case, a follow-up on the progress of the promised amendments is recommended.

The Joint Chairman (Mr. Szabo): Are there questions or comments? Are members agreed?

Hon. Members: Agreed.

SOR/2004-149 — ORDER 2004-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

(For text of documents, see Appendix B, p. 14B:1)

Mr. Bernhardt: It was pointed out that the order was not registered within seven days of its making, as required by section 5 of the Statutory Instruments Act. Environment Canada agrees that it was not registered within five days and advises that its procedures have been amended to ensure that this does not recur.

It is noteworthy that it took 20 months, four reminder letters and, apparently, consultations with program managers and the department's legal advisers to provide a seven-line response. While it is difficult to describe this as satisfactory, the point that was initially raised has been addressed.

The Joint Chairman (Mr. Szabo): Are there questions or comments? Are members agreed?

Hon. Members: Agreed.

SOR/96-476 — AIRPORT TRAFFIC REGULATIONS, AMENDMENT

(For text of documents, see Appendix C, p. 14C:1)

Mr. Bernhardt: As the note included in the materials this morning explains, the one remaining issue on this file is the incorporation by reference of fines prescribed by provincial laws ``as amended from time to time.'' However, the joint committee has consistently taken the position that this open or ambulatory incorporation by reference requires an express enabling authority. Unlike the situation where documents are incorporated by reference as of a fixed point in time, an open incorporation involves a transfer or a sub-delegation of the rule-making power. In other words, the actual content of the rule, in this case the amount of the fine that will be paid, will be set by someone other than the person to whom Parliament has given this power. The joint committee has dealt with this issue numerous times over the years.

In this instance, as the note explains, the argument has gone back and forth covering old ground in discussing cases that the committee has dealt with more than once. In essence, these cases concern inter-delegation of legislative authority between the federal and provincial levels of government as a constitutional issue. They are of limited relevance to issues of sub-delegation in an administrative law context. There is nothing in the latest reply from Transport Canada that adds anything new to the debate. At some time, the committee might wish to consider reporting to both Houses on the whole question of incorporation by reference generally.

I would recommend at this time that the joint committee write directly to the minister in the hope of securing a more satisfactory response.

The Joint Chairman (Mr. Szabo): Are there questions or comments? Has the Minister of Transport not been engaged in any correspondence on this matter?

Mr. Bernhardt: No, not on this file. To date, counsel's communications with the department have been limited to departmental officials.

The Joint Chairman (Mr. Szabo): A letter to Minister Cannon is likely an appropriate approach.

Mr. Dewar: Counsel referenced this as being an issue that the joint committee has dealt with before. Was that on other files? Who would the committee deal with in that case? Would it be those in the respective ministries who draw up legislation? Given that this has been a trend, perhaps the joint committee should consider prescribing a solution. How would that be done? Does counsel have enough cases to cite indicating a true concern?

Mr. Bernhardt: Certainly, it has been one of the more common areas of contention between the joint committee and Justice Canada over the years — the different view taken by the two sides of incorporation by reference. It is a fairly common technique and thus comes up with some regularity. We have often discussed whether it might be useful to table a report in both Houses to explain the issue, outline the committee's views, why the committee disagrees with some of the representations it has received over the years from officials at Justice Canada, rather than to deal with the issue on a case-by-case basis.

In that sense, the joint committee would be taking a position on the matter to which it could refer when such cases arise in the future. The joint committee has the option of asking for a comprehensive government response to that report as well.

Mr. Dewar: Do we want to move to have that done and leave that with people to decide?

Mr. Bernhardt: It is something we could start work on. It would be a comprehensive exercise.

The Joint Chairman (Mr. Szabo): I would suggest that to the extent that we have examples that will be reflective of the issue and that by mitigating or eliminating this difficulty down the road, it sounds like a productive endeavour.

We will write to the minister on the specific file, if that is agreed. Second, we will ask our general counsel to proceed with putting together the necessary information for a report to Parliament with regard to the incorporation by reference matter.

Counsel can prepare a draft for our review; it will take awhile.

Mr. Bernhardt: It is a good summer project.

The Joint Chairman (Mr. Szabo): Yes, to do it properly. It is a good investment to make, so we will bring it back when we are prepared to have the committee members receive it for approval to be reported to the Houses. Is that agreed?

Hon. Members: Agreed.

SOR/2006-241 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (DATA PROTECTION)

(For text of documents, see Appendix D, p. 14D:1)

Shawn Abel, Counsel to the Committee: Three points have been raised. First, subsection c.08.004.01(2) states that this section ``applies to the implementation of'' two binding international treaties. Counsel brought this peculiar language to the department's attention and asked for the purpose of this provision. The department indicated that the purpose is to provide notice that this section forms part of their implementation of treaty obligations and to identify the enabling statutory authority for this section.

Notwithstanding that this provision does not actually refer to any enabling authority, providing notice of this kind properly belongs in a recommendation preceding the amendments, rather than in a substantive provision of law. This subsection in no way affects the actual application of the remaining provisions, and thus it seems unnecessary.

The second point concerns three subsections that allow an innovator of a drug to exempt a manufacturer of that drug from certain prohibitions set out in this section. The problem is that the prohibitions apply to a ``manufacturer,'' and the exemptions refer to a ``subsequent manufacturer.'' The department indicated that the word ``subsequent'' was added to avoid confusion between the innovator, who would likely also be a manufacturer of the drug, and any other manufacturer of the drug. However, it seems clear that the removal of the word subsequent would be the approach that provides greater clarity in this case, and would not affect the operation of the section. If the department remains concerned about possible confusion, it could be suggested that they define the terms ``innovator'' and ``manufacturer.''

The third point on this file deals with two provisions that impose, respectively, a prohibition and a positive duty on the minister. Contravention of any provision of the regulations is an offence under the enabling act, and this was dawn to the attention of the department. Their reply indicated that if the minister failed to fulfil his obligations, a party could seek remedy by way of judicial review, instead of criminal proceedings and that, therefore, these provisions do not create an offence applicable to the minister. This position is simply wrong. A minister is subject to a general offence provision in the same manner as every other person. The possibility of judicial review does nothing to detract from a clearly imposed and distinct offence set out in the act.

In sum, on this file, I would suggest that a further letter could be written encouraging amendments on points one and two and, on point three, recognition of the legal reality.

The Joint Chairman (Mr. Szabo): Are there any comments? I think that sounds like a good approach. Is it agreed?

Hon. Members: Agreed.

SOR/2005-178 — CIGARETTE IGNITION PROPENSITY REGULATIONS

(For text of documents, see Appendix E, p. 14E:1)

The Joint Chairman (Mr. Szabo): Maybe for the edification of all members, you can advise them of the reason for the question mark beside this item on the agenda.

Mr. Bernhardt: First, by way of background, these regulations require cigarettes to meet a prescribed standard for ignition strength in order to reduce death and injury associated with fires started by cigarettes.

Section 7 of the Tobacco Act does authorize the Governor-in-Council to make regulations establishing standards for tobacco products and prescribing test methods to assess conformity with the standards. Simply because regulations prescribe a standard and a test method, however, it does not necessarily follow that they must be authorized by section 7 of the act.

Regulation-making powers must be exercised for the purposes of the enabling legislation and, in the case of the Tobacco Act, we have, in section 4, an express statement as to what the purposes of that act are. They are said to be the reduction of the incidence of tobacco use, particularly among young people, public education and disease prevention.

It was suggested to the Department of Health that these regulations are not intended to address any of the health issues arising from tobacco use per se. They do not reduce or discourage tobacco use in any way — that is not their purpose. They are simply intended to reduce fire hazards. Obviously, this is a desirable goal, but it is difficult to see how it falls within the scope of the Tobacco Act.

To characterize fire hazards as a public health problem would seem to ignore the distinction between public health and safety. The department argues that fire prevention is properly characterized as a public health issue, because the aim is to keep people out of the hospital.

The fundamental question for the committee is whether it feels that there is a distinction between public health and safety. For example, could it be argued that motor vehicle safety or firearms use are public health issues, or does that distort the meaning of the term? That is where the question mark comes in, and I guess that is the first decision for the committee this morning.

As the note explains, there is also a fair bit of legislative history here that has a bearing. The Tobacco Act was passed in 1997; at that time, the Hazardous Products Act was amended to remove tobacco products from the scope of the Hazardous Products Act. Then in 2004, through a private member's bill, the Hazardous Products Act was amended again to put tobacco products back in. Now we have the Hazardous Products Act dealing with tobacco products, and we also have the Tobacco Act.

When they made the regulations in 2004, the government decided to proceed under the Tobacco Act, reflecting its view that it did not agree with the 2004 private member's bill that the Hazardous Products Act was appropriate. In effect, it chose to ignore that private member's bill.

The department seeks to justify this on the grounds that the regulations were approved by the Commons committee on health. At the time, at least some members of that committee viewed those amendments in 2004 as simply a prod to get some regulations under some act or other.

However, it is hard to escape the fact that Parliament did amend the Hazardous Products Act to specifically provide for dealing with this subject matter. That would seem to be some inference that that is the vehicle Parliament intended would be used.

The department concludes by suggesting that, even if the regulations are outside the scope of the Tobacco Act, they are still authorized under the Hazardous Products Act. At the very least then, I would suggest that the consolidated index should be amended to indicate what the proper enabling statute is. There might also be some value in revoking the regulations and remaking them under the Hazardous Products Act.

On the other hand, it is open to the committee to conclude that, if there is no distinction between public health and safety, they can be made under either act. In that case, the regulations would stand, although it still might be a good idea to amend the Tobacco Act to clarify that it is intended to apply notwithstanding the Hazardous Products Act. That would follow from a conclusion that this public health/public safety distinction is not one that needs to be made. That is really the question for the committee. Is fire safety a public health issue?

Senator Harb: I totally agree with counsel. We should go back to them — not because we disagree with the regulations, but only with respect to where this should fit. If we do not do that, we are setting very dangerous precedents for others to do the same. They will end up doing things in regulations that are not what Parliament has distinctly and clearly indicated they want them to do.

I would suggest, since they have the 2004 act that was passed by Parliament, although they decided not to proclaim or decided not to take action on it, that they still have that choice. Notwithstanding whether someone approved the regulation, it does not mean a thing. As long as there is an act of Parliament, they have to comply with the act.

I would suggest that we proceed with a letter stating that we agree with the regulation but that we want them to correct it so that it fits with the intent of the act.

Mr. Bernhardt: This would be a question of revoking and remaking under the Hazardous Products Act.

The Joint Chairman (Mr. Szabo): Is there further comment?

I am a little concerned, even though it sounds a little humorous, that people are debating whether the ignition of a cigarette and whether it leads to a fire is or is not a health issue. It really does raise the question about the legislation and its purposes. It enables certain things to happen and those regulations that are exigible to that bill will reflect the legislation. We have a mismatch here.

We can get into a variety of esoteric arguments, but our responsibilities are with regard to the integrity of legislation on a stand-alone basis.

If committee members agree, we will recommend, as Senator Harb has suggested, that for those reasons a recourse would be the revocation and reissue under the appropriate act.

Are members agreed?

Hon. Members: Agreed.

SOR/95-189 — NOVA SCOTIA OFFSHORE AREA PETROLEUM DIVING REGULATIONS

(For text of documents, see Appendix F, p. 14F:1)

Mr. Bernhardt: I should explain that the correspondence from the department deals with three files. The other two files are being proceeded with by the committee separately, so this is the only one before the committee this morning. It is confusing, because we got a letter from the department that lumped them all together.

Mr. Abel: On this file, the committee continues to receive regular updates concerning forthcoming promised amendments relating to these regulations. The last letter, received November 29, 2006, reaffirmed that work towards the promised amendments continues despite frequent delays and advised that a new update would arrive in spring 2007. As it is now spring and the update has not been received, perhaps a letter is in order concerning any recent progress.

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

Hon. Members: Agreed.

SOR/95-233 — SASKATCHEWAN FISHERY REGULATIONS, 1995

(For text of documents, see Appendix G, p. 14G:1)

Mr. Bernhardt: Several amendments were first promised back in 1999. Two of these were to resolve points of drafting; the other concern was the need to place parameters on the types of licence conditions that could be specified in a licence by the provincial minister. The amendments have been delayed pending proposals from the province on other amendments. Last November, the Department of Fisheries and Oceans indicated that work was under way, that the amendments would be promulgated as soon as possible and that ``careful consideration would be given to the committee's concerns.''

I would suggest that the department should be asked to confirm that this means that the committee's concerns will actually be addressed; as well, a timetable for completion of the amendments should also be requested.

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

Hon. Members: Agreed.

SOR/2001-390 — FORM OF PROXY (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

(For text of documents, see Appendix H, p. 14H:1)

Mr. Abel: A letter was last received on this file in December 2006 advising the committee that statutory amendments, which are necessary to proceed with promised amendments to the regulations, have now been made. The drafting of new Form of Proxy Regulations is under way and the issues identified by the committee will be addressed. The letter promises to provide further updates, but given that a significant amount of time has passed since that letter was received, perhaps another letter should be drafted asking for progress.

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

Hon. Members: Agreed.

SOR/2001-395 — INVESTMENT LIMITS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/2001-396 — INVESTMENT LIMITS (INSURANCE COMPANIES) REGULATIONS

SOR/2001-397 — INVESTMENT LIMITS (INSURANCE HOLDING COMPANIES) REGULATIONS

(For text of documents, see Appendix I, p. 14I:1)

Mr. Abel: I should start by noting on this file that the French version of the letter dated December 14, 2006, was not included in the original package passed around to the committee, but it is being circulated at this moment.

In that letter, the Office of the Superintendent of Financial Institutions advised the committee that the promised amendments relating to this file have been submitted to the Department of Justice for examination. Since five months have passed since that letter was received, again I would suggest that a letter go out asking for progress.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): I would just like to make a point. The expectation of progress on correspondence is probably enhanced when there is some meat to the letter. I must admit that I really think we have to work a little harder to get more than one sentence in a letter, even if it is to remind them that this causes delay in the administration of legislation. This is almost acquiescing to, ``Let us exchange letters for another six months.''

I would suggest that we be a little more vigilant. When we have nothing more to say than a prompt, let us start including some appropriate language, language that would reflect our wish to resolve these matters, rather than playing ping-pong. That is simply an editorial remark.

SOR/95-334 — NEWFOUNDLAND OFFSHORE AREA PETROLEUM GEOPHYSICAL OPERATIONS REGULATIONS

(For text of documents, see Appendix J, p. 14J:1)

Mr. Bernhardt: A preliminary point was noted here, namely, an error in the French version of the enabling act, that is, the Canada-Newfoundland Atlantic Accord Implementation Act, and a correcting amendment to the act has been promised.

Turning to the regulations themselves, a number of matters were raised in connection with sections 25 to 28. There are identical provisions in the Nova Scotia Offshore Area Petroleum Geophysical Operations Regulations, so the same comments and undertakings would apply to those regulations as well.

On point 1, the explanations provided in response to the first two paragraphs of counsel's letter of December 5, 2006, would appear to be satisfactory. An amendment has been promised to resolve the English-French discrepancy identified in the third paragraph.

As for point 2, again the explanation in connection with the first paragraph seems to be satisfactory. In the second paragraph of point 2, it was suggested that section 26(3), which authorizes the chief conservation officer to require an operator to furnish information and materials, simply duplicated section 189(1) of the act. Initially, the Department of Natural Resources agreed and undertook to delete section 26(3). In its June 20, 2006 letter, however, the department has changed its position. It now suggests that this provision confers a broader authority than the act. This is because under section 189(1) of the act, only a person who is in charge or who is in a place used for any work or activity to which Part III of the act applies can be required to provide information. On the other hand, the provision in the regulations applies in respect of operators who hold authorizations generally.

It might be questioned whether the operator will not always be a person in charge, in any event. The fundamental point, however, is that the act already deals expressly with the circumstances in which and the people from whom information can be required for purposes of enforcement. These persons are people who are in a place used for a work or undertaking to which Part III applies and persons in charge of such places. If Parliament had intended that this same power could be exercised vis-à-vis other people, presumably Parliament would have said so in the Canada- Newfoundland Atlantic Accord Implementation Act.

On point 3, the explanation provided appears satisfactory.

On point 4, dealing with section 28 of the Newfoundland Offshore Area Petroleum Geophysical Operations Regulations, Natural Resources Canada has changed its mind. Initially, section 28 of the regulations was to be deleted and then it was to be reviewed to ensure that it did not merely duplicate the act. In connection with the Nova Scotia Offshore Area Petroleum Geophysical Operations Regulations, the act was to be reviewed to ensure that there was no overlap with the regulations. Most recently, NRCan's view is that section 28 of the geophysical regulations is necessary and should remain in place.

Section 28 gives the chief conservation officer the power to investigate accidents and incidents that occur during geophysical operations; and section 165 of the act gives the offshore petroleum board the power to conduct inquiries. The department explains that the inquiries conducted by the board under the act are formal inquiries that would follow from a major incident or disaster, while the inquiries under the regulations are more routine and informal. Be that as it may, the problem is that the act makes no such distinction and simply gives the power to the board to direct that an inquiry be made in the case of a spill or an accident or an incident.

If other people were to be permitted to conduct the same kinds of inquiries, then presumably the act would have said so. If it is necessary for the chief conservation officer to have the power to carry out informal or routine investigations, then the act should be clarified to provide for this, to which the department previously agreed.

In conclusion, I would suggest that the two outstanding points be pursued in a further letter to the department.

The Joint Chairman (Mr. Szabo): Are there questions or comments? Are members agreed?

Hon. Members: Agreed.

SOR/98-166 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

(For text of documents, see Appendix K. p. 14K:1)

Mr. Abel: Five points were raised in respect of this instrument. A satisfactory reply was received on the first point, which dealt with the equivalence of the French and English versions of a provision.

The second point dealt with a provision that has since been replaced. Although the concerns of the joint committee were not addressed in the replacement, the issue is being pursued in that new file. Health Canada agreed with counsel's concerns on the last three points, which involved changes to grammar and language usage. The reply indicated that work on amendments to the regulations is under way and that if those amendments come to fruition the suggestions concerning the last three points would be adopted. Given that the last contact on this file was one year ago, I would suggest drafting a letter to request an update and, perhaps, to advise that if this total package of amendments does not go through in a reasonable amount of time, it can be expected that the promised amendments will be resolved on their own.

The Joint Chairman (Mr. Szabo): Are there questions or comments? Are members agreed?

Hon. Members: Agreed.

SOR/2005-149 — EXPORT AND IMPORT OF HAZARDOUS WASTE AND RECYCLABLE MATERIAL REGULATIONS

(For text of documents, see Appendix L, p. 14L:1)

Mr. Bernhardt: There were 17 points raised in connection with these regulations. The joint committee has been promised amendments to deal with the matters in points 1, 3, 6, 9, 10, 11, 16 and 17 in the correspondence. I would suggest that the explanations provided on points 4, 5, 7, 8, 12 and 13 be accepted as satisfactory.

The omission identified in the Consolidated Index of Statutory Instruments has been corrected, resolving the question in point 15.

That leaves only point 2, which concerns certain provisions that require persons engaged in specified activities to provide information, including their name, address, registration number, telephone number, fax number and email address. It was suggested that because not everyone will have all of these, the information should be required only where applicable. In reply, Environment Canada agrees that this would have been the ideal but that, for reasons of conciseness, they did not do it. Given that we are talking about the inclusion of two words, that explanation seems a bit difficult to swallow. On the other hand, as the department suggests, it is unlikely that anyone would think that they would have to have all of this equipment solely for the purpose of fulfilling a requirement that they provide contact information.

It may be that the joint committee feels the point does not warrant further pursuing. If so, it is simply a matter of following up on the progress of the other promised amendments.

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

Hon. Members: Agreed.

SOR/2003-301 — INVESTMENTS IN ASSOCIATIONS AND COOPERATIVELY-OWNED ENTITIES REGULATIONS

(For text of documents, see Appendix M, p. 14M:1)

Mr. Abel: The Department of Finance was advised of the concern that certain sections of the regulations were not authorized by the relevant enabling authority, which allows the Governor-in-Council to prescribe circumstances under which section 390(4) of the act does not apply. In effect, the regulations exempt an association under prescribed circumstances from a prohibition against acquiring control or increasing substantial investment in certain entities.

Counsel pointed out that two provisions appear to go beyond exempting associations from this prohibition and that they appear to set out conditions under which an association may or may not have a substantial investment in an entity and, if the association must abandon an investment, set out positive duties that the association must follow. However, the department's reply demonstrated how the provisions merely prescribe further circumstances or conditions under which an association could continue to hold control of an entity. Thus, these provisions do merely prescribe exemptions and the reply is deemed satisfactory.

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

Hon. Members: Agreed.

SI/2003-173 — PROCLAMATION GIVING NOTICE THAT THE SUPPLEMENTARY AGREEMENT TO THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE FEDERAL REPUBLIC OF GERMANY COMES INTO FORCE ON DECEMBER 1, 2003

(For text of documents, see Appendix N, p. 14N:1)

Mr. Abel: The initial correspondence regarding this instrument dealt with two issues. The first issue involved a determination of the exact date of the order bringing into force the supplementary agreement between Canada and Germany. However, it was eventually determined that the order had been properly tabled and the correct date had been indicated on the proclamation.

The second point dealt with a discrepancy between the English and French versions of a provision of the final protocol of the supplementary agreement, a copy of which is annexed to the proclamation. Specifically, the term ``ordinary residence'' is used in the English version and ``domicile'' is used in the French version. In Canadian law, these terms are legally distinct. The department recognizes the difference but stated that with respect to social security matters, in particular in European Union countries, it is standard practice to use these terms interchangeably, and there would be no effect upon the qualification of individuals for benefits under this agreement.

Given that in this case what we are dealing with is an international agreement that is annexed to a proclamation I would suggest that this response is satisfactory.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): I have a question for counsel, if I may. Some of these issues were raised some time ago and we now find ourselves able to close those files. Is there an assessment of the process, to know exactly what was done, how successful we were and what we learned from it? Perhaps when good things happen, we should know why; when things are not satisfactory, we should know why; and in both cases, we should try to rate them for future occurrences of similar circumstances. The time frame on the last file seems a little disproportionate to the issue raised in the first instance. The productivity is probably nothing to boast about on that one.

In any event, I raise the point for consideration because it would be helpful to know where bottlenecks occurred that created the extensive time frame and related costs in terms of the work of the committee and that of the relevant departments.

Mr. Bernhardt: Briefly, we have been working through the winter and spring to clear a backlog of files waiting to come before the joint committee. Part of the backlog is due to the number of elections over the last while, which means that the committee has not had the number of meetings and the continuity that it had before.

The other thing in this case is that given the nature of what it is, when counsel goes through and starts compiling files to bring to the committee, you tend to bring out the unsatisfactories, the letters from ministers and things that will require a report. When you see something that is satisfactory, there is sometimes an unfortunate tendency to say there is no rush to send that to the committee; it is just a satisfactory and the file can be closed. Next thing you know, it has been put off for several meetings. I do not say that by way of excuse; it is just a practical matter.

The Joint Chairman (Senator Eyton): Can you tell us what our backlog is now, as well as our rate of turnover, our progress? How many are we dealing with; what is the backlog now?

Mr. Bernhardt: In terms of items waiting to come to the committee to be dealt with, we are looking at roughly 50 as of now, but that changes on a daily basis. For active and open files, we are looking at probably close to 600 files. Then, of course, there is a backlog of files that have yet to be reviewed by counsel.

The Joint Chairman (Senator Eyton): What is our rate of dealing with these?

Mr. Bernhardt: Right now, that would probably be about two meetings' worth, so we are doing well. As of New Year's, I was looking at about 180 files that were backed up waiting to come to committee. We do have it down to 50; and with a meeting or two left this spring, we should be able to cut further into that.

The Joint Chairman (Mr. Szabo): At least the significant items.

Mr. Bernhardt: Yes, there may be a few of these sorts of things that get carried over.

Senator Bryden: Those are pretty good numbers in comparison to numbers that have existed in the past. We asked this question when I was chair, which was a few years ago, and the backlog and the number waiting was higher. It was gradually reduced, but these are pretty good numbers, from my experience, as far as being able to manage what you need.

Mr. Bernhardt: We have cut down on the backlogs at each stage — not as fast as I would have liked, but we are slowly chipping away.

The Joint Chairman (Mr. Szabo): Perhaps we can get a periodic report to keep the committee apprised of our progress.

Mr. Cannan: We are getting things done.

The Joint Chairman (Mr. Szabo): After 13 years, it is about time.

SOR/95-25 — INVESTMENT CANADA REGULATIONS, AMENDMENT

(For text of documents, see Appendix O, p. 14O:1)

Mr. Abel: This instrument was last before the committee on March 11, 2004. At that time, given the minor nature of the amendments in question, the committee agreed to the Department of Industry's position that they would introduce the promised amendments to these regulations in conjunction with other amendments to be made. The committee did specify, however, that if two years passed without any such package coming to fruition, it would like that measures be taken to introduce the promised amendments without delay.

In November 2006, counsel reminded the department that two years had passed without the necessary amendments. The department replied that any forthcoming amendments will now be examined in the context of a new, ongoing review of both the act and the regulations. The question is whether this is satisfactory to the committee.

At the least, I would suggest that a letter could be drafted asking whether an expected timeline could be provided.

The Joint Chairman (Mr. Szabo): Is there any discussion? Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Again, if you look at the chronology of this, I am not sure if it is a cultural thing, but there will come a point, if we catch up on the backlog, we will probably be getting into more procedural and maybe educational areas. Perhaps we will invite, or mandate, some of the more chronic offenders to come and spend some time with us.

SOR/2006-175 — REGULATIONS AMENDING THE COMPREHENSIVE STUDY LIST REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix P, p. 14P:1)

Mr. Bernhardt: As mentioned in the covering note, these amendments corrected several out-of-date references to other federal legislation that had been identified. Again, the failure to register the instrument within seven days as required was noted.

The Environmental Assessment Agency advises that this was due to inadvertent procedural oversight resulting from new staff and the absence of other key staff. Procedures have apparently been reviewed to ensure that the problem does not repeat itself.

The only other point concerned the definition of ``national parks reserve'' in section 2. This definition refers to reserves that are not described in Schedule 2 to the Canada National Parks Act. Under the act, however, it is the inclusion of lands in Schedule 2 that actually establishes land as a national park reserve.

The agency explains that the reference is to lands in respect of which an establishment agreement has been reached with First Nations but that are still in the process of being listed as reserves and are already the responsibility of Parks Canada. Technically, these lands are not yet reserves but they have been referred to as such in the regulations for administrative purposes and for ease of reference with the public.

I suppose this is acceptable, although it could be asked how long, once an agreement is reached, it should take to add these lands to the schedule. This can be done by regulation. The need for such a reference in the definition seems to indicate that it could be quite some time, although it is difficult to see why that should be. That question might be worth asking although, in the end, there would seem to be nothing that would require an amendment to remedy.

The Joint Chairman (Mr. Szabo): The remedy is by regulations.

Mr. Bernhardt: Yes. If you have gone to the trouble to define it this way, it seems to imply that you will have a gap period in time that needs to be dealt with. It is hard to see, since all you are doing is adding something to a schedule by regulation, why there should be a gap. That is an administrative question, not a legislative question. It is something the committee could ask, but I am not sure there is anything it could pursue.

The Joint Chairman (Mr. Szabo): If we wanted to strongly encourage and expedite it, is that through the deputy minister or through the minister's office?

Mr. Bernhardt: I suppose we could write back to the DIO, who, in this case, is the vice-president of the Environmental Assessment Agency. We could ask what their time frame is for doing these things and, if it is significant, why that should be. It is a matter of how quickly they can make a regulation adding something to a schedule.

The Joint Chairman (Mr. Szabo): I cannot think of an easier thing to do in terms of reference. It is not even drafting a regulation; it is amending an existing regulation. Adding something to a list is the kind of thing that governments need to do on a regular basis.

As a test, I would suggest to the committee that we should ask. We have the tools; this is a straightforward matter and all parties are agreed. It will be interesting to see whether there will be some more correspondence or arguments about that or why they cannot do it.

If that is agreed, we will see if we can pursue a clear resolution.

[Translation]

Ms. Bonsant: I want to know why in section 3 of the regulations, paragraphs (a) and (b) are still in English. These two paragraphs have not been translated.

[English]

Mr. Bernhardt: It is a change only to the French version. Presumably, there was an error in the French version that did not appear in the English version, so they only had to amend the French version.

[Translation]

Ms. Bonsant: I agree, but the whole of the right-hand side is in French. For the National Park Reserve, would we not expect it to be written in French like the rest of the bill? I have it in English in the French version. It would have been logical to put paragraphs (a) and (b) all in French.

[English]

Mr. Bernhardt: In section 3, this is the amendment to paragraph 3.1(a) and 3.1(b).

[Translation]

Ms. Bonsant: We are not in the same place. I will show you.

[English]

Senator De Bané: Chairman, are we on tab 237, regulations amending the national park lease?

The Joint Chairman (Mr. Szabo): No. We are on SOR/2006-175, the Comprehensive Study List Regulations.

Mr. Bernhardt: I apologize; it is the reverse situation here. They are amending only the English version of the definition. Presumably, that was to correct an error — that would have been an amendment requested by the committee to resolve a discrepancy between the English and French versions of the definition.

Then, having seen that, and looking again at the definition, we raised the second issue, which was why there was a need in that definition at all for paragraph (b).

[Translation]

Ms. Bonsant: You do not understand. It is written in English on the French side.

[English]

Mr. Bernhardt: Yes, because you are only amending the English version. If you go to the next page you will see —

[Translation]

Ms. Bonsant: I must be dim-witted this morning; why is it not written in French on the French side? I do not understand why it is written in English on the French side and in English on the English side.

[English]

Mr. Bernhardt: Because the two versions are equally authoritative, you need an English version of the provision that amends the English version and you also need a French version of the provision that amends the English version. Because you are only amending the English version, the French version has to be in English, because you are not touching the French version. The idea then —

[Translation]

Ms. Bonsant: Why make it simple when we can make it complicated?

[English]

Mr. Bernhardt: That is the problem.

[Translation]

Ms. Bonsant: I see why there are so many lawyers here and why no one else understands what you are doing.

[English]

Mr. Bernhardt: On the next page, you have the opposite example, where they are amending the French version only, so the English is in French, because you have an English version of the amendment that is being made only to the French version. If you look at the amendment to section 2, you see ``project de construction'' et cetera, is in French on both sides, because they are only amending the French version.

The Joint Chairman (Mr. Szabo): Madam, this has come up before. As confusing as it may sound, when you want to amend the French translation in a bill, the English must use the French language that you are amending to show the corrected French, but it is in the English side of the page. It is just to reflect the actual words that are going. So there will always be English and French on the English side.

You may want to satisfy yourself by speaking with counsel after the meeting.

Mr. Bernhardt: Again, with members' concurrence, I would propose dealing with the next three headings as three groups — action promised, action taken and statutory instruments without comment.

First, I shall deal with action promised.

SOR/2002-237 — REGULATIONS AMENDING THE NATIONAL PARKS LEASE AND LICENCE OF OCCUPATION REGULATIONS (1991)

(For text of documents, see Appendix Q, p. 14Q:1)

SOR/2005-32 — OFF-ROAD COMPRESSION-IGNITION ENGINE EMISSION REGULATIONS

(For text of documents, see Appendix R, p. 14R:1)

SOR/2006-94 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (STANDARDS 210.1 AND 210.2)

(For text of documents, see Appendix S, p. 14S:1)

SOR/2006-104 — CROWN CORPORATIONS INVOLVED IN THE PROVISION OF COMMERCIAL LOANS ENVIRONMENTAL ASSESSMENT REGULATIONS

(For text of documents, see Appendix T, p. 14T:1)

Mr. Bernhardt: There are 10 amendments promised in connection with the instruments under action promised. Progress on these will be followed up in the usual fashion.

I shall now deal with action taken.

SOR/2005-261 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT

(For text of documents, see Appendix U, p. 14U:1)

SOR/2006-136 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS

SOR/2005-198 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS AND OTHER REGULATIONS IN CONSEQUENCE

(For text of documents, see Appendix V, p. 14V:1)

SOR/2006-223 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix W, p. 14W:1)

SOR/2006-329 — ORDER AMENDING SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999 (MISCELLANEOUS PROGRAM)

SOR/2005-46 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999)

(For text of documents, see Appendix X, p. 14X:1)

Mr. Bernhardt: Under action taken, we have instruments that make nine corrections that were previously promised to the committee.

The next group is statutory instruments without comment.

SOR/2006-150 — REGULATIONS AMENDING THE LICENSING AND ARBITRATION REGULATIONS

SOR/2006-159 — REGULATIONS AMENDING THE REGULATIONS SPECIFYING INVESTIGATIVE BODIES

SOR/2006-163 — REGULATIONS AMENDING THE SULPHUR IN DIESEL FUEL REGULATIONS

SOR/2006-173 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD CONTINGENCY FUND REGULATIONS

SOR/2006-174 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

SOR/2006-176 — ORDER CANCELLING THE ORDER ISSUING THE GENERAL EXPORT PERMIT NO. 40 — CERTAIN INDUSTRIAL CHEMICALS

SOR/2006-178 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2006-189 — ORDER AMENDING SCHEDULES 1 TO 3 TO THE SPECIES AT RISK ACT

SOR/2006-195 — SET TOP BOXES REMISSION ORDER

SOR/2006-204 — ORDER AMENDING SCHEDULE 1 TO THE PATENT ACT (OSELTAMIVIR PHOSPHATE)

SOR/2006-210 — REGULATIONS AMENDING THE MANAGEMENT OF CONTAMINATED FISHERIES REGULATIONS

SOR/2006-216 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS LAND MANAGEMENT ACT

SOR/2006-220 — REGULATIONS AMENDING THE NON-MAILABLE MATTER REGULATIONS

SOR/2006-228 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2006-232 — REGULATIONS AMENDING THE UNDELIVERABLE AND REDIRECTED MAIL REGULATIONS

SOR/2006-233 — ORDER AMENDING PART I OF THE SCHEDULE TO THE ACT

SOR/2006-234 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A TWENTY-FIVE CENT CIRCULATION COIN

SOR/2006-235 — BY-LAW AMENDING THE DEPOSIT INSURANCE APPLICATION FEE BY-LAW

SOR/2006-238 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-22

SOR/2006-246 — STATISTICAL DATA DISCLOSURE REGULATIONS

SOR/2006-247 — CANADIAN WHEAT BOARD DIRECTION ORDER

SOR/2006-248 — ORDER 2006-87-07-03 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2006-252 — PERIOD FOR ENTERING INTO AN AGREEMENT FOR THE PURPOSE OF JOINTLY ESTABLISHING A REVIEW PANEL REGULATIONS

SOR/2006-257 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES

SOR/2006-262 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-264 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2006-265 — ORDER CANCELLING GENERAL EXPORT PERMIT NO. 39 — MASS MARKET CRYPTOGRAPHIC SOFTWARE

SOR/2006-266 — ORDER 2006-66-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2006-277 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2006-284 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS

SOR/2006-292 — REGULATIONS AMENDING THE GUN SHOWS REGULATIONS

SOR/2006-297 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF VARIOUS CIRCULATION COINS

SOR/2006-298 — VIRTUAL ELIMINATION LIST

SOR/2006-299 — CIVIL REMEDIES (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

SOR/2006-300 — CIVIL REMEDIES (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/2006-308 — GOING-PRIVATE TRANSACTION (INSURANCE COMPANIES AND INSURANCE HOLDING COMPANIES) REGULATIONS

SOR/2006-309 — GOING-PRIVATE TRANSACTION (TRUST AND LOAN COMPANIES) REGULATIONS

SOR/2006-310 — INSIDER REPORTS (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

SOR/2006-312 — INSIDER REPORTS (INSURANCE COMPANIES AND INSURANCE HOLDING COMPANIES) REGULATIONS

SOR/2006-313 — INSIDER REPORTS (TRUST AND LOAN COMPANIES) REGULATIONS

SOR/2006-314 — MEETINGS AND PROPOSALS (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

SOR/2006-315 — MEETINGS AND PROPOSALS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/2006-318 — PROSPECTUS (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

SOR/2006-320 — PROSPECTUS (INSURANCE COMPANIES AND INSURANCE HOLDING COMPANIES) REGULATIONS

SOR/2006-321 — PROSPECTUS (TRUST AND LOAN COMPANIES) REGULATIONS

SOR/2006-332 — REGULATIONS AMENDING THE QUARANTINE REGULATIONS

SOR/2006-342 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS

SOR/2006-343 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS

SOR/2006-344 — REGULATIONS AMENDING THE SPECIAL SERVICES AND FEES REGULATIONS

SOR/2006-349 — ORDER AMENDING THE AREA CONTROL LIST

Mr. Bernhardt: Finally, there are 50 instruments under statutory instruments without comment that have been reviewed and found to conform to all of the committee's criteria.

Senator De Bané: Mr. Chairman, if I may, on SOR/2002-237, I am quite surprised by the answer of the Chief Executive Officer of Parks Canada. His last paragraph is:

Unfortunately, given Parks Canada's many priorities; the proposed changes will have to wait . . .

He recognizes the mistake. Is it normal to say, yes, we recognize you have identified an error but we have other things to do so you will have to wait? I am quite shocked by this. Is it that I am naive or what?

Mr. Bernhardt: Traditionally, the practice of the committee has developed over the years that if, as we saw earlier, there are very minor amendments, and the undertaking is, yes, those corrections will be made, but we would like to wait until we are doing other amendments, then the committee has usually accepted that, with the caveat that it still expects action to be taken in a reasonable period of time.

Often, the committee has told departments or agencies that it looks at two years to be a reasonable period of time and that if these other changes have not gone ahead within that time it would expect these amendments to be made separately and independently without any further delay.

So again, that is something we can advise them here.

Senator De Bané: Thank you.

The Joint Chairman (Mr. Szabo): Is there any further business for the committee?

There being none, we are adjourned.

The committee adjourned.

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